HomeMy WebLinkAboutAdministrative Order of Consent for the Bozeman Solvent Site{H-Work\20028\007\JSR2861.DOC//JSR}1
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission FROM: Tim Cooper, Assistant City Attorney
Debbie Arkell, Director of Public Services
SUBJECT: Administrative Order of Consent for the Bozeman Solvent Site
MEETING DATE: December 5, 2011
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Authorize City Manager to Sign Administrative Order of Consent
requiring the City and CVS to perform the remedial actions identified in the August 18, 2011
Record of Decision issued by the Montana Department of Environmental Quality.
BACKGROUND: In 1989, tetrachloroethene (PCE) was detected in a public water supply
well north of what is now known as the Hastings Shopping Center. The contamination was
traced to a dry cleaning business located in the shopping center that released PCE into the sewer
system. The dry cleaner had been in business since 1960. From 1960 until 1964, the shopping center sewer system consisted of an on-site septic tank and drainfield. In 1964, the shopping
center was connected to the city’s sewer system. In August 1970, the city was “deeded” the
sewer main and manholes of the shopping center sewer system. The old sewer lines and septic
tank were not removed. As a result, PCE remained in the sewer lines and septic tank, and
eventually seeped into the ground and groundwater, thus causing contamination to area wells.
In 1990, the Bozeman Solvent Site (BSS) was identified as a maximum priority state Superfund
Facility listed on the Montana Comprehensive Environmental Cleanup and Responsibility Act
(CECRA) priority list. As such, the Montana Department of Environmental Quality (DEQ)
dictates the clean-up actions that must occur on this site. The City was found to be a Potentially Liable Party, and the City and shopping center owners have since been working with DEQ to
resolve the issue.
In August 2011, the DEQ issued the Record of Decision (ROD) for the solvent site. The ROD identifies the remedies and actions required for remediation of the site. The DEQ requires that a legal mechanism be in place to allow for the implementation of the ROD for the BSS.
Accordingly, the City of Bozeman and CVS Pharmacies (the Responsible Parties) have been
negotiating an Administrative Order of Consent (AOC) with the DEQ which will control the
remediation activities at the BSS. The AOC not only requires the Responsible Parties to perform remedial actions identified in the ROD at the BSS, but provides the specific terms and conditions governing the work to be completed.
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Notable terms addressed by the AOC include the following:
1. Project Coordinators
2. Work to be performed (including procedures) 3. Facility Access and Institutional Controls 4. Access to Information
5. Record Retention
6. Compliance with Other Laws
7. Emergency Response and Notification 8. Authority of Project Coordinator 9. Reimbursement of Costs
10. Dispute Resolution
11. Stipulated Penalties
12. Financial Assurance These terms are each addressed in greater detail below.
Project Coordinator
The Responsible Parties and the MDEQ have each identified a Project Coordinator. The Responsible Parties’ Project Coordinator is ATC Associates, Inc., Mike Ellerd. The DEQ Project Coordinate is DEQ Project Officer, Kate Fry.
Work to Be Performed
The Responsible Parties will prepare Work Plans to implement the ROD. There are four remedies to be addressed for the BSS (1) Bioremediation; (2) Soil Vapor Extraction; (3) Long Term Monitoring for Natural Attenuation of the groundwater plume; and (4) the installation of
New/Deeper Wells north of the Gallatin River in the event the PCE MCL is exceed. All work
shall be completed pursuant to a schedule.
When the DEQ comments or directs changes to Deliverables (Work Plans, Reports, etc.) the Responsible Parties have 14 days to incorporate comments/changes. If the Responsible Parties
do not agree with comments/changes, the DEQ shall meet with the Responsible Parties to discuss
the changes. Such a request shall be made by the Responsible Parties within 7 days in writing. If
DEQ modifies its comments/changes pursuant to the meeting DEQ shall document that decision within 10 days of meeting. If comments/changes are not adequately incorporated into Deliverable, the DEQ may then publish the Deliverable itself or offer the Responsible Parties the
opportunity to publish the Deliverable with DEQ changes. If Responsible Parties disagree, it may
be expressed in a letter that will be included in the file.
Facility Access/Institutional Controls The Responsible Parties shall use their best efforts to secure access to implement the ROD.
Institutional Controls are those restrictions on the use of real property that mitigates the risk
posed to public health, safety, and welfare. The Responsible Parties acknowledge Institutional
Controls are necessary. The City of Bozeman specifically agrees to implement permitting provisions provided in the ROD relating to providing fresh air mechanical ventilation for trench/excavation projects located in a small area on the site and immediately to the north. CVS
agrees to facilitate the Institutional Controls provided in the ROD are placed on real property
owned or controlled by Red Mountain Retail Group. The Responsible Parties further agree to use
their best efforts to implement, maintain, enforce, and comply with the Institutional Controls.
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Access to Information The Responsible Parties must be responsive to DEQ requests for copies of technical documents
and information within their control or possession within 60 days. However, the Responsible
Parties may assert documents, records, or other information are privileged. If the Responsible Parties assert a privilege they will provide the DEQ a privilege log.
Record Retention
The Responsible Parties must maintain all non-identical copies of documents and technical
records until 5 years after Notice of Completion of Work, which may be as late as 2044. The Responsible Parties will notify the DEQ 90 days prior to destruction of any records.
Compliance with Other Laws
The Responsible Parties shall comply with all local, state and federal laws and regulations.
Emergency Response and Notification In the event of any action or occurrence that constitutes an emergency situation or is likely to
present an immediate threat to public health, safety or welfare or the environment, the
Responsible Parties may immediately take appropriate action. The Responsible Parties shall also
immediately notify the DEQ.
Authority of DEQ Project Coordinator The DEQ Project Coordinator (Kate Fry) shall be responsible for overseeing the Responsible
Parties’ implementation of the AOC. The Project Coordinator has the authority, upon a
reasonable basis, to halt, conduct, or direct any Work required pursuant to the AOC or any action undertaken at the BSS.
Reimbursement of Costs
The Responsible Parties shall reimburse all DEQ Remedial Action Costs within 30 days of
receipt of the DEQ accounting of costs. In the event the Responsible Parties dispute the DEQ costs, it must be submitted in writing within 30 days of receipt of the invoice. Within 60 days of
identifying the dispute as to costs the Responsible Party shall establish an interest bearing escrow
account or otherwise provide financial assurance for funds equivalent to the disputed amount.
The Responsible Parties shall then initiate Dispute Resolution procedures.
Dispute Resolution The Responsible Parties shall notify the DEQ of a dispute within 10 days of identifying the
dispute. The Parties will have 14 days to informally resolve the dispute. If the Parties are not able
to resolve the dispute, the Responsible Parties may file for judicial review. The Responsible
Parties must initiate judicial review within 30 days of DEQ’s final determination.
Stipulated Penalties Per violation per day for noncompliance with the AOC:
• 1-14 Days - $500
• 15-30 Days - $2,500
• 31 or more Days - $5,000
DEQ must provide written notice to the Responsible Parties of any noncompliance. The penalties
will begin to accrue as of the date of the violation, but not more than seven days prior to notice. Penalties are due and payable within 30 days of receipt of notice from the DEQ. If dispute
resolution procedures are invoked, any penalties shall be stayed until agreement or the DEQ has
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made a final determination. If judicial review is initiated, penalties will be stayed until the
district court renders its decision. Penalties will accrue during any pending appeal.
Financial Assurance Within 30 days of AOC, the Responsible Parties shall establish and maintain financial assurance
to the benefit of DEQ in the amount of $531,302 (Long Term Monitoring Costs). This financial
assurance may be by insurance, guaranty, performance or other surety bond, letter of credit,
qualification as self-insurer, escrow account, or other demonstration of financial capability. The
financial assurance terminates when Responsible Parties certify that all activities have been performed and DEQ approves the certification.
Miscellaneous Provisions
• Force Majeure
• Covenant Not to Sue by DEQ
• Reservation of Rights by DEQ
• Covenant Not to Sue by Respondents
• Other Claims
• Contribution
• Indemnification
• Modifications
• Additional Work
• Notice of Completion of Work
• Integration/Appendices
• Termination and Satisfaction
• Admissibility of Data
• Effective Date
• Authority of Signatories
• Public Notice and Comment
UNRESOLVED ISSUES: None identified
ALTERNATIVES: None identified. As directed by the City Commission.
FISCAL EFFECTS: The City and CVS are required to cover the costs associated with the
remediation of the BSS provided for in the AOC as well as DEQ cost recovery for its oversight
of the project. The costs to implement the remedial actions identified in the Record of Decision (projected through 2040) have been estimated by the City’s Project Coordinator, Mike Ellerd of ATC Associates, Inc. DEQ management and oversight costs are split equally between the City
and CVS. ATC Associates, Inc. has been retained by the City and CVS to complete the work
necessary at the BSS including remedial design, remediation implementation and monitoring.
The City also utilizes Nicklin Earth & Water for independent consultation for which it is responsible for all associated costs. Costs for remedial design, remediation implementation and monitoring a are split equally by the City and CVS until these total costs reach $4 million.
Applicable costs in excess of that amount are to be split 70/30 between CVS and the City,
respectively. The City’s total estimated projected lifecycle costs for the project, including DEQ
cost recovery, fees for remedial design, remediation implementation and monitoring, and independent consultation, are $3,082,952.00. The City has remaining claims against the insurance coverage in this matter. Insurance coverage is provided by Saefco/Liberty Mutual
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Insurance Group and Travelers/St. Paul Companies. Safeco coverage is for 4% of the costs up to
$300,000.00 of which approximately $63,000.00 is remaining in potential coverage. Travelers
coverage is for 19% of the costs up to $4,000,000.00 of which approxately $2,850,000 is
remaining in potential coverage. These costs estimates have been incorporated into the City’s rate models for our Wastewater Utility charges.
Cc: Jeni Reece, Esq jenireece@qwestoffice.net
Richard Hixson, City Engineer
DPS File: BSS/ROD
Attachments: Administrative Order of Consent Report compiled on: November 23, 2011
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BEFORE THE DEPARTMENT OF ENVIRONMENTAL QUALITY
OF THE STATE OF MONTANA
IN THE MATTER OF REMEDIAL ACTION AT
THE BOZEMAN SOLVENT SITE, A CECRA
FACILITY. ADMINISTRATIVE ORDER ON
CONSENT
Docket No. SF-11-0003
I -
1. This Administrative Order on Consent (“AOC”) is entered into between the City
of Bozeman (“City”), CVS Pharmacy, Inc. (“CVS”), and the Montana Department of
Environmental Quality (“DEQ”) pursuant to § 75-10-723, MCA. This AOC requires the City
and CVS (collectively “the Respondents”) to perform the remedial actions identified in the
August 18, 2011 Record of Decision (“ROD”) issued by DEQ for the Bozeman Solvent Site
(“Facility”).
JURISDICTION AND GENERAL PROVISIONS
2. DEQ and the Respondents agree that this AOC has been negotiated in good faith
and that the actions undertaken by the Respondents in accordance with this AOC do not
constitute an admission of any liability. The Respondents do not admit, and retain the right to
controvert in any subsequent proceedings, the validity of the findings of fact, conclusions of law,
and determinations in this AOC. The Respondents agree that all obligations, commitments, and
other agreements in this AOC are made both individually and jointly. The Respondents agree to
comply with, and be bound by, the terms of this AOC and further agree that they will not seek
judicial review regarding the jurisdiction (or the facts that constitute jurisdiction) of this AOC.
The Respondents further agree that they will not seek judicial review of the issuance of the ROD
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or AOC or remedy selected in the ROD; provided, however, that Respondents reserve the right
to seek judicial review of the implementation of the AOC, including the Work Plan, Work,
Schedule, Deliverable, or DEQ Remedial Action Costs, as provided for in Section XVI (Dispute
Resolution).
3. The Record of Decision is hereby incorporated into this AOC as Attachment A.
II -
4. This Order applies to and is binding upon DEQ, the Respondents, and their
successors and assigns. Any change in ownership or corporate status of CVS including, but not
limited to, any transfer of CVS’ assets or real or personal property shall not alter CVS’ status or
responsibilities under this AOC unless transferred pursuant to Paragraph 6 below.
PARTIES BOUND
5. The Respondents shall ensure that their contractors, subcontractors, and
representatives receive a copy of this AOC and shall make a good faith effort to ensure that the
contractors, subcontractors, and representatives comply with this AOC. The Respondents shall
be responsible for any action on their behalf or at their direction resulting in noncompliance with
this AOC.
6. The Respondents shall not assign, transfer, convey, sublet or otherwise dispose of
any legal obligation, requirement, right, title or interest contained within this AOC without the
previous written consent of DEQ which shall not be unreasonably withheld. Any attempts to
assign, transfer, convey, sublet or otherwise dispose of any requirement of this AOC without
DEQ’s prior written consent are null and void.
III -
7. Terms used in this AOC are to be taken and understood in their natural and
ordinary sense unless this AOC indicates that a different meaning was intended. Unless
otherwise expressly provided herein, terms used in this AOC that are defined in CECRA shall
DEFINITIONS
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have the meaning assigned to them in CECRA. Whenever terms listed below are used in this
AOC, in the documents attached to this AOC, or incorporated by reference into this AOC, the
following definitions shall apply:
a. “AOC” means this document together with Attachment A (Record of Decision)
and any subsequent modifications and amendments.
b. “Approved” when used in conjunction with this AOC, means reviewed by DEQ
(and if appropriate, modified), and finally agreed to and Approved by DEQ in
writing.
c. “CECRA” means the Comprehensive Environmental Cleanup and Responsibility
Act, §§ 75-10-701, et seq., MCA.
d. “Contractor” means the individual(s), company, or companies retained by or on
behalf of the Respondents to undertake and complete all or a part of the Work. A
Contractor and any subcontractors retained by the Contractor shall be deemed to
be related by contract to the Respondents.
e. “Day” means a calendar day, unless a business day is specified. In computing any
period of time under this AOC, where the last day would fall on a Saturday,
Sunday, or State of Montana holiday, the period shall run until the close of
business of the next working day.
f. “Deliverable” means any written document, including but not limited to, work
plans, reports, notices, memoranda, data or other documents that Respondents
must submit to DEQ under the terms of this AOC.
g. “DEQ” means the Montana Department of Environmental Quality and any
successor departments or agencies of the State of Montana.
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h. “DEQ-7” means the August 2010 version of the Montana Numeric Water Quality
Standards for Montana’s surface and groundwater adopted pursuant to the
Montana Water Quality Act, § 75-5-301, MCA.
i. “DEQ Remedial Action Costs” shall mean all costs as defined by § 75-10-
701(23), MCA, incurred by the State of Montana which are attributable to or
associated with a remedial action at the Facility including, but not limited to,
direct and indirect reasonable costs that DEQ and the State of Montana incur in
overseeing work at the Facility, developing the ROD, drafting, negotiating and
executing this AOC, and all direct and indirect reasonable costs that DEQ will
incur in reviewing or developing Deliverables submitted pursuant to this AOC, in
overseeing implementation of the Work, or otherwise implementing, overseeing,
or enforcing this AOC, including, but not limited to, reasonable payroll costs,
contractor costs, travel costs, attorney’s fees, litigation costs, laboratory costs, and
all Interest due under § 75-10-722, MCA.
j. “Effective Date” means the effective date of this AOC as provided in Section
XXXII (Effective Date).
k. “Facility” means the site commonly known as the Bozeman Solvent Site located
in Bozeman, Montana where hazardous or deleterious substances originating from
the former dry cleaning operation located at the former Buttery Shopping Center,
now known as the Hastings Shopping Center (BSC), have come to be located and
is more particularly described in the ROD.
l. “Force majeure” means any event arising from causes beyond the control of the
Respondents, or of any entity controlled by or associated with the Respondents,
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including but not limited to their contractors and subcontractors, that delays or
prevents performance of any obligation under this AOC despite Respondents’ best
efforts to fulfill the obligation. The requirement that the Respondents use “best
efforts to fulfill the obligation” includes using best efforts to anticipate any
potential force majeure event and best efforts to address the effects of any
potential force majeure event (a) as it is occurring and (b) following the force
majeure event, such that the delay is minimized to the greatest extent possible.
Force majeure events might include delays or failures of governmental agencies
in issuing necessary permits or approvals, provided that the Respondents have
timely submitted complete applications and provided all requested information.
Force majeure does not include financial inability to complete the Work,
increased cost of performance, or normal precipitation events.
m. “Institutional Controls” means those restrictions on the use of real property that
mitigates the risk posed to public health, safety, and welfare which are more
particularly described in the ROD
n. “Party” means the City, CVS, or DEQ. “Parties” means the Respondents and
DEQ.
o. “Remedial Action” means all activities the Respondents are required to perform
under this AOC to implement the ROD, including but not limited to development
of Deliverables, implementation of Work, and long-term operation and
maintenance, including but not limited to groundwater monitoring.
p. “Respondents” means the City of Bozeman and CVS Pharmacy Inc. The term
includes CVS’ successors and assigns. It also includes the City of Bozeman.
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q. “ROD” means the Record of Decision issued by DEQ on August 18, 2011.
r. “Schedule” means the schedule for completion of the Work and all Deliverables,
which will be approved by DEQ and incorporated into this AOC.
s. “Work” means performing the final remedial actions identified in the ROD issued
by DEQ at the Bozeman Solvent Site, including long-term operation and
maintenance, to be performed by Respondents under this AOC according to the
Schedule.
t. “Work Plan” means a plan for implementing all or a portion of the remedial
action at the Facility to be performed by Respondents under this AOC, as well as
any approved modifications to a Work Plan, as provided for in Sections XXVI
(Modifications) and XXVII (Additional Work).
IV -
DEQ makes the following findings of fact:
FINDINGS OF FACT
8. The majority of the Facility is within the City limits. The northern-most portion
of the Facility is north of the East Gallatin River, outside the city limits (Township 1 South,
Range 5 East, Sections 25, 26, 35, and 36 and Township 2 South, Range 5 East, Sections 1 and
12). The surficial and approximate boundaries of the Facility extend from the former Buttrey
Shopping Center (“BSC”), now known as the Hastings Shopping Center, (1625 West Main
Street) on the south, to approximately 500 feet north of the East Gallatin River. North 19th
Avenue is the approximate western boundary of the Facility. The eastern boundary extends from
the Hastings Shopping Center to the North 7th Avenue and Interstate 90 (I-90) interchange then
north of the East Gallatin River northeast of Cherry Spring.
9. DEQ has listed the Facility as a maximum priority on the CECRA Priority List
pursuant to § 75-10-704(3), MCA.
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10. In 1989, DEQ conducted a survey of public water supply wells in Montana.
During this survey, tetrachloroethene (“PCE”) was detected in a public water supply well at the
Nelson Mobile Home Park approximately 2,200 feet north of the BSC. The PCE was ultimately
traced back to the BSC, which at the time the contamination occurred was connected to a private
sewer system.
11. The BSC sewer system consisted of a sewer line, service connections to the
various attached businesses, a septic tank, and two seepage pits. A dry cleaner business operated
at the BSC from 1960 until 1993 and discharged PCE into the former sewer line.
12. The PCE was released into the subsurface at the BSC through leaks in the former
sewer line and former septic system, and contaminated the soil and groundwater. Soil
contamination is primarily limited to the saturated soils beneath and adjacent to the former sewer
line and the former septic system at the BSC. There are no known contaminated surface soils.
PCE has also impacted soil vapor.
13. Groundwater contamination is between 11 and 52 feet deep at the BSC.
Groundwater contamination extends from the BSC to the north side of the East Gallatin River,
approximately 2.5 miles away.
14. PCE is a hazardous or deleterious substance as that term is defined in § 75-10-
701(8), MCA.
15. The Montana groundwater quality standard for PCE is 5 µg/L.
16. There are other hazardous and deleterious substances at the Facility which are
described in the ROD.
17. In the ROD, DEQ determined that an imminent and substantial endangerment
exists to the public health, safety, or welfare or the environment from the releases and threatened
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releases at the Facility and that remedial action is necessary to abate this endangerment. DEQ’s
ROD identifies how that abatement must occur and includes site-specific cleanup levels for the
hazardous or deleterious substances.
18. Respondent CVS is a Rhode Island corporation.
19. Respondent City is a municipal corporation organized under the laws of the State
of Montana.
20. Buttrey Foods, Inc. acquired the property upon which the BSC is located on June
10, 1960. On June 16, 1966, Buttrey Foods, Inc. was later merged with Jewel Tea Co., Inc.
which changed its name to Jewel Companies, Inc. the same day. In 1984, American Stores
Company acquired Jewel Companies, Inc. as a wholly owned subsidiary. Jewel Companies, Inc.
owned the BSC until May 3, 1986, when it was transferred to Skaggs Alpha Beta, Inc., which
was also a wholly owned subsidiary of American Stores Company.
21. Albertson’s Inc. acquired American Stores Company (including Jewel
Companies, Inc.) in 1999 and assumed liability for cleanup of the Facility. In 2006, CVS
assumed Albertson’s liability for the Facility pursuant to CVS’ acquisition of the Osco Drug
chain.
22. On August 12, 1970, Jewel Companies, Inc. deeded the conveyance piping (sewer
line) and manholes of the BSC to the City. The City has since owned and operated the sanitary
sewage conveyance piping and manholes that service the BSC.
23. In Interim Order WQ-91-0001 issued October 9, 1991, DEQ determined that
Skaggs Alpha Beta and Jewel Companies, Inc. were persons who owned or operated the Facility
during the time a hazardous or deleterious substances was disposed or released and were liable
under § 75-10-715, MCA.
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24. In Interim Water Supply Order WQ-93-101 issued June 14, 1993, DEQ
determined that Skaggs Alpha Beta, Inc., Jewel Companies, Inc., and the City were persons who
owned or operated the Facility during the time a hazardous or deleterious substances was
disposed and were liable under § 75-10-715, MCA.
25. Neither Interim Order WQ-91-0001 nor Interim Water Supply Order WQ-93-101
was appealed and the time for appealing those determinations has expired.
V -
Based on the preceding Findings of Fact, DEQ has made the following Conclusions of
Law:
CONCLUSIONS OF LAW AND DETERMINATIONS
26. Respondent City is a “person” as that term is defined by § 75-10-701(16), MCA.
27. The City is a person who “owns or operates” the Facility as that term is defined
by § 75-10-701(15), MCA, and, by owning or operating the Facility, the City is liable for
remedial actions pursuant to § 75-10-715, MCA.
28. Respondent CVS is a “person” as that term is defined by § 75-10-701(16), MCA
and, having assumed by contract the liability of a person who was previously determined to
“own or operate” the Facility as that term is defined by § 75-10-701(15), MCA, is liable for
remedial actions pursuant to § 75-10-715, MCA.
29. The real property, all buildings, structures, installations, equipment, pipes or
pipelines, wells, impoundments, ditches, landfills, and storage containers is a “Facility” as that
term is defined by Paragraph 5(k) above.
30. PCE has contaminated subsurface soil and soil vapor and PCE is present in the
groundwater at the Facility above the DEQ-7 standard of 5 µg/L.
31. The PCE at the Facility is a hazardous or deleterious substance as that term is
defined in § 75-10-701(8), MCA.
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32. There are other hazardous and deleterious substances, as that term is defined in §
75-10-701(8), MCA, at the Facility which are described in the ROD.
33. In the ROD, DEQ determined that an imminent and substantial endangerment
exists to the public health, safety, or welfare or the environment from the releases and threatened
releases at the Facility and that remedial action is necessary to abate this endangerment. The
ROD identifies how that abatement must occur and includes site-specific cleanup levels for the
hazardous or deleterious substances.
34. Based on the Findings of Fact and Conclusions of Law set forth above, as
provided for in § 75-10-723, MCA, DEQ has determined that it is practicable and in the public
interest to enter into this AOC requiring Respondents to perform the Work as defined herein.
DEQ also has determined that the Respondents will perform the Work properly and has included
in this AOC terms and conditions that DEQ has determined to be appropriate.
35. Based on the Findings of Fact and Conclusions of Law set forth above, DEQ has
determined that the actions required by and undertaken pursuant to this AOC are necessary to
protect the public health, safety, and welfare and the environment, are in the public interest, are
consistent with the requirements of CECRA, and are appropriate remedial actions to contain,
remove, and abate past releases of hazardous or deleterious substances and presently continuing
releases and threatened releases of hazardous or deleterious substances into the environment at
and from the Facility.
VI -
Based upon the foregoing Findings of Fact, Conclusions of Law, and Determinations,
DEQ hereby orders that Respondents comply with all provisions of this AOC, including, but not
limited to, implementation of the ROD.
ORDER
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VII -
36. Respondents have retained ATC Associates, Inc. to perform the Work.
Respondents shall notify DEQ of the name(s) and qualification(s) of any other contractor(s) or
subcontractor(s) retained to perform the Work at least 10 Days prior to commencement of such
Work.
DESIGNATION OF CONTRACTOR AND PROJECT COORDINATORS
37. DEQ retains the right to disapprove of any or all of the contractors and/or
subcontractors retained by the Respondents, including previously selected contractors, based
upon the person’s qualifications or ability to effectively perform the required Work. If DEQ
disapproves of a contractor selected by the Respondents, DEQ must provide a written
disapproval specifically identifying the reason(s) for its disapproval. If DEQ provides written
disapproval of a selected contractor, Respondents shall select a different contractor and shall
notify DEQ of that contractor’s name and qualifications within 30 Days of DEQ’s disapproval.
38. The Respondents’ Project Coordinator shall be Michael Ellerd of ATC
Associates, Inc., as an agent of the Respondents, and he shall be responsible for administration of
all actions by Respondents required by this AOC. Respondents have designated James Sullivan
of ATC Associates, Inc. as their Alternate Project Coordinator. To the greatest extent possible,
the Respondents’ Project Coordinator shall be present on Facility or readily available during
Work at the Facility. Respondents reserve the right to designate a different Project Coordinator
at their sole discretion; provided, however, that DEQ does not disapprove the Respondents’
selection of a different Project Coordinator.
39. DEQ retains the right, at any time, to disapprove of the designated Project
Coordinator or Alternate Project Coordinator based upon the person’s qualifications or ability to
effectively perform the required Work. If DEQ disapproves of the designated Project
Coordinator or Alternate Project Coordinator selected by the Respondents, DEQ must provide a
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written disapproval specifically identifying the reason(s) for its disapproval. If DEQ disapproves
of the designated Project Coordinator or Alternate Project Coordinator, Respondents shall select
a different Project Coordinator and shall notify DEQ of that person’s name, address, telephone
number, and qualifications within 30 Days following DEQ’s disapproval.
40. Receipt by Respondents’ Project Coordinator of any notice or communication
from DEQ relating to this AOC shall constitute receipt by Respondents.
41. DEQ has designated Kate Fry as its Project Coordinator. Her telephone number is
406-841-5066 and her email is kfry@mt.gov. DEQ has designated Denise Martin as its
Alternate Project Coordinator. Her telephone number is 406-841-5060 and her email is
demartin@mt.gov. Except as otherwise provided in this AOC, Respondents shall direct all
submissions required by this AOC to DEQ’s Project Coordinator or Alternate Project
Coordinator, if the Project Coordinator is not available, at:
Montana Department of Environmental Quality 1100 N. Last Chance Gulch
P.O. Box 200901
Helena, MT 59620-0901
42. DEQ and Respondents (subject to Paragraphs 37 and 39) shall have the right to
change their respective designated Project Coordinators. Respondents and DEQ shall notify the
other Party at least 10 Days before such a change is made. The initial notification may be made
orally, but shall be followed by a written notice within 10 Days.
VIII -
43. Respondents shall conduct all remedial actions necessary to implement the ROD.
This Work shall be conducted in accordance with this AOC and all applicable federal, state and
local laws and regulations.
WORK TO BE PERFORMED
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44. At the direction of DEQ, Respondents shall prepare Work Plans to implement the
ROD and all Work shall be conducted according to a Schedule. DEQ may require changes to the
Work Plans or Schedule if DEQ determines such changes are necessary to ensure compliance
with this AOC. Any such change in the Work Plans or Schedule made by the DEQ shall be
provided to the Respondents in writing and with sufficient notice to enable the Respondents to
limit additional costs. Any subsequent modifications to a Work Plan or Schedule approved by
DEQ shall be incorporated into and become fully enforceable under this AOC.
45. All Deliverables from Respondents must be submitted to DEQ concurrently in
both hard copy and modifiable electronic format.
46. Changes to the Deliverables submitted by Respondents may be needed to ensure
adequate compliance with this AOC and the ROD. When DEQ comments on and/or directs the
Respondents to make changes to Deliverables, the following procedures shall apply:
A. Respondents will have 14 Days from the Day of receipt of DEQ’s comments to
incorporate all comments or changes to the Deliverable required by DEQ and
agreed to by Respondents, unless a different time period is specified by DEQ or
requested by Respondents and approved, in writing, by DEQ.
B. In the event Respondents do not agree with DEQ’s comments or directed changes
to a Deliverable, DEQ shall meet with Respondents to discuss the comments.
Such request for a meeting must be made by Respondents in writing within seven
Days of receipt of DEQ’s comments. If the request is not made within this
timeframe, Respondents will be deemed to have waived their right to a meeting.
Respondents and DEQ shall make a good faith effort to meet within 14 Days of
Respondents’ request for a meeting. If DEQ deems Respondents, after timely
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requesting a meeting, have not made a good faith effort to meet within the 14 Day
period, DEQ may, in writing, provide notice that Respondents’ right to a meeting
has been deemed waived. If DEQ agrees that any of its comments or directed
changes should be modified based upon the meeting between DEQ and
Respondents, DEQ shall document that decision by sending a letter modifying its
comments or directed changes within 10 Days after the meeting. Respondents
must then resubmit the Deliverable in accordance with DEQ’s direction.
C. If DEQ determines that Respondents have not adequately incorporated DEQ’s
comments or directed changes, DEQ may make the required changes to the
Deliverable by incorporating its required revisions electronically into the
document and either finalizing the document itself or providing an opportunity for
the Respondents to finalize the document with DEQ’s revisions. If DEQ finalizes
the document, upon request of Respondents, DEQ will remove from the final
version of the document the name of the author who prepared the original version
of the document. In addition, if DEQ finalizes the document, it will include a
statement on the cover page of the document such as: "DEQ finalized this
document because there was a disagreement between DEQ and Respondents and
all of DEQ’s required changes were not incorporated. Although this document is
designated a DEQ version, the author of the original document holds a copyright
on the original document, and may have intellectual property rights in all or a
portion of this document. Further information regarding the original document
submitted by Respondents is available in DEQ’s files" or equivalent language.
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D. If Respondents disagree with the substantive changes required by DEQ,
Respondents may identify their disagreement in a letter that will be included in
the site file for the Facility. In addition, if Respondents finalize the Deliverable
with DEQ’s revisions as provided for in (C) above, Respondents may include the
following sentences in a footnote on the cover page of the document: “DEQ has
required changes to this document to which Respondents do not agree. See
DEQ’s files for more information.” Respondents may not in any other manner
indicate their disagreement with DEQ’s required revision in the Deliverable itself.
This includes, but is not limited to, the use of highlighting, italicizing, footnoting,
and underlining.
47. If Respondents fail to comply with the procedures provided for in Paragraph 46,
or if DEQ determines that additional changes or additions were included in a resubmittal without
identification, DEQ may complete the Deliverable or any portion thereof and seek
reimbursement from Respondent for DEQ Remedial Action Costs. To the extent that DEQ
conducts or takes over some of the Work, Respondents shall incorporate and integrate
information supplied by DEQ into Deliverables or Work as directed by DEQ, subject to Section
XVI (Dispute Resolution).
48. DEQ may also choose to enforce the terms of this AOC in order to require
Respondents to produce any Deliverable consistent with the comments and directed changes of
DEQ.
49. Neither failure of DEQ to expressly approve or disapprove Respondents’
Deliverables within a specified time period, nor the absence of comments, shall be construed as
approval by DEQ. DEQ agrees to exercise its best efforts to notify Respondents, in writing,
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within 14 Days of receipt of a Deliverable if it will not be able to provide comment or approval
of a Deliverable within 30 Days of receipt. DEQ shall also indicate in the written notice when it
will provide comment or approval of the Deliverable.
50. Respondents shall not commence any Work unless approved by DEQ in advance
and in conformance with the terms of this AOC.
IX -
51. To the extent that Respondents own, operate, control, or otherwise have access
rights to any portion of the Facility, they shall provide DEQ, and its representatives, including
contractors, with access at all reasonable times to the Facility for the purpose of conducting any
activity related to this AOC.
FACILITY ACCESS AND INSTITUTIONAL CONTROLS
52. Respondents shall use best efforts to secure access to all portions of the Facility as
needed to implement the ROD.
53. Notwithstanding any provision of this AOC, DEQ retains all of its access
authorities and rights, including enforcement authorities related thereto, under CECRA and any
other applicable statutes or regulations.
54. Respondents acknowledge that Institutional Controls are necessary to ensure
protection of public health, safety, and welfare. The City agrees that it will implement the
permitting provisions found in Sections 9.1 and 11.2.1.2 of the ROD. As successor-in-interest to
the contract between the former BSC owner, Red Mountain Retail Group and its successors
(“RMRG”) and Albertson’s, CVS agrees that it will exercise its best efforts to ensure the
Institutional Controls identified in the ROD are placed on the real property which is owned or
controlled by RMRG in compliance with § 75-10-727, MCA. Respondents thereafter agree to
use their best efforts to implement, maintain, enforce, and comply with the Institutional Controls
in the future.
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X -
55. Except as otherwise provided for in Deliverables, Respondents shall provide to
DEQ, within 60 Days of DEQ’s request, copies of all technical documents and information
within their possession or control or that of their contractors or agents relating to activities at the
Facility or to the implementation of this AOC not previously provided to DEQ; such technical
documents and information include, but are not limited to, sampling, analysis, chain of custody
records, manifests, trucking logs, field books, daily logs, receipts, technical reports, sample
transport records, correspondence, or other documents or information related to the Work.
Unless privileged or otherwise protected from disclosure, Respondents shall also make available
to DEQ, for purposes of investigation and enforcement of this AOC, information gathering, or
testimony, their employees, agents, or representatives with knowledge of relevant facts
concerning the performance of the Work.
ACCESS TO INFORMATION
56. Respondents may assert that certain documents, records and other information are
privileged under the attorney-client privilege or any other privilege recognized by Montana law.
If Respondents assert such a privilege in lieu of providing documents, they shall provide DEQ
with the following: 1) the title of the document, record, or information; 2) the date of the
document, record, or information; 3) the name and title of the author of the document, record, or
information; 4) the name and title of each addressee and recipient; 5) a description of the
contents of the document, record, or information; and 6) the privilege asserted. However, no
Deliverables created or generated pursuant to the requirements of this AOC shall be withheld on
the grounds that they are privileged.
57. With respect to the Facility, no claim of confidentiality shall be made with respect
to any data, including, but not limited to, all sampling, analytical, monitoring, hydrogeologic,
scientific, chemical, or engineering data, or any other technical documents or information.
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XI -
58. Until five years after Respondents’ receipt of DEQ’s notification pursuant to
Section XXVIII (Notice of Completion of Work), Respondents shall preserve and retain all non-
identical copies of technical records and documents (including technical records or documents in
electronic form) now in their possession or control or which come into their possession or
control that relate to the performance of the Work with respect to the Facility regardless of any
City government or corporate retention policy to the contrary, unless such technical records and
documents (including technical records or documents in electronic form) have already been
provided to DEQ. Until five years after Respondents’ receipt of DEQ’s notification pursuant to
Section XXVIII (Notice of Completion of Work), Respondents shall also instruct their
contractors and agents to preserve all technical documents, records, and other information
(including but not limited to field logs, photographs, chain of custody forms, raw data, and
manifests) relating to performance of the Work with respect to the Facility, unless such technical
records and documents (including technical records or documents in electronic form) have
already been provided to DEQ.
RECORD RETENTION
59. At the conclusion of this technical document retention period, Respondents shall
notify DEQ at least 90 Days prior to the destruction of any such technical records or documents,
and, upon request by DEQ, unless such technical records and documents (including technical
records or documents in electronic form) have already been provided to DEQ, Respondents shall
deliver any such records or documents to DEQ. Respondents may assert that certain documents,
records and other information are privileged under the attorney-client privilege or any other
privilege recognized by Montana law. If Respondents assert such a privilege, they shall provide
DEQ with the following: 1) the title of the document, record, or information; 2) the date of the
document, record, or information; 3) the name and title of the author of the document, record, or
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information; 4) the name and title of each addressee and recipient; 5) a description of the subject
of the document, record, or information; and 6) the privilege asserted. However, no Deliverables
created or generated pursuant to the requirements of this AOC shall be withheld on the grounds
that they are privileged.
60. Respondents hereby certify individually that to the best of their knowledge and
belief, they have not altered, mutilated, discarded, destroyed or otherwise disposed of any
records, documents or other information (other than identical copies) relating to their potential
liability regarding the Facility since they received notification of potential liability from DEQ;
provided that, with respect to CVS, CVS so certifies since June 2, 2006.
XII -
61. Respondents shall perform all actions required pursuant to this AOC in
accordance with all applicable local, state and federal laws and regulations. In accordance with §
75-10-721, MCA, all actions required pursuant to this AOC shall attain applicable or relevant
state and federal environmental requirements, criteria or limitations identified in the ROD.
COMPLIANCE WITH OTHER LAWS
XIII -
62. In the event of any action or occurrence during performance of the Work that
causes or threatens a release from the Facility that constitutes an emergency situation or is likely
to present an immediate threat to public health, safety, or welfare or the environment,
Respondents shall immediately take all appropriate action. Respondents shall take these actions
in accordance with all applicable provisions of this AOC in order to prevent, abate or minimize
such release or endangerment caused or threatened by the release. Respondents shall also
immediately notify DEQ’s Project Coordinator or, in the event of her unavailability, the
Alternate Project Coordinator both telephonically and via electronic mail using the contact
information provided in Section VII (Designation of Contractor and Project Coordinators). In
EMERGENCY RESPONSE AND NOTIFICATION
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the event that Respondents fail to take appropriate action as required by this paragraph, and DEQ
takes such action instead, Respondents shall reimburse DEQ for all costs of the remedial action
pursuant to Section XV (Reimbursement of Costs).
63. In addition, in the event of any new release of a hazardous or deleterious
substance from the surficial boundaries of the Facility, Respondents or their Contractor(s) shall
notify DEQ’s Project Coordinator and the National Response Center at (800) 424-8802 within 24
hours after obtaining knowledge of each release. Respondents shall submit a written report to
DEQ within seven Days after the notification of each release, setting forth the events that
occurred and, in the event such new release were caused by Respondent(s) or anyone acting on
its behalf, the measures taken or to be taken to mitigate any release or endangerment caused or
threatened by the release and to prevent the reoccurrence of such a release. This reporting
requirement is in addition to, and not in lieu of, reporting under Section 103(c) of CERCLA, 42
U.S.C. § 9603(c), and Section 304 of the Emergency Planning and Community Right-To-Know
Act of 1986, 42 U.S.C. § 11004, et seq.
64. Respondents shall immediately notify DEQ’s Project Coordinator orally if
Facility conditions within any Work Plan change and shall follow up with written notice to
DEQ’s Project Coordinator within three Days of such occurrence.
XIV -
65. The DEQ Project Coordinator shall be responsible for overseeing Respondents’
implementation of this AOC. The DEQ Project Coordinator shall have all authorities provided
in this AOC and CECRA, including the authority, pursuant to the terms of this AOC and upon a
reasonable basis, to halt, conduct, or direct any Work required by this AOC, or to direct any
other action undertaken at the Facility. Absence of the DEQ Project Coordinator from the
AUTHORITY OF DEQ PROJECT COORDINATOR
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Facility shall not be cause for stoppage of work unless specifically directed by the DEQ Project
Coordinator.
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66. Respondents shall reimburse all DEQ Remedial Action Costs. On a monthly
basis, DEQ will send Respondents a bill requiring payment that includes a cost summary of
direct and indirect costs incurred by the State of Montana and its contractors or subcontractors.
Respondents agree to reimburse DEQ within 30 Days of receipt of each accounting that
identifies DEQ Remedial Action Costs.
REIMBURSEMENT OF COSTS
67. Respondents shall make all payments to DEQ by check made payable to DEQ and
sent to:
Montana Department of Environmental Quality
Office of Financial Services
P.O. Box 200901
Helena, MT 59620-0901
All payments shall be accompanied by a transmittal letter identifying the name and address of
the Party making payment, and shall specify that the payment is to be applied to the Bozeman
Solvent Site Facility. Respondents may choose to make payments to DEQ via electronic wire
transfer as follows:
Bank Name: US Bank, NA
Bank ABA # (routing): 092900383 Bank Address: 302 N. Last Chance Gulch, Helena, MT 59601
Account Name: State of Montana
Account Number: 156041200221
Federal ID Number: 81-0302402
Third Party Information: On the wire in the description (OBI) field include “53010-DEQ” and “Bozeman Solvent Site, 483725”
All payments received under this Section must be deposited into the Environmental Quality
Protection Fund provided for in § 75-10-704, MCA.
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68. In the event that payments for DEQ Remedial Action Costs are not made within
30 Days of Respondents’ receipt of a bill, interest on the unpaid balance shall accrue in
accordance with § 75-10-722, MCA. The interest on DEQ Remedial Action Costs shall begin to
accrue on the date the bill is due and shall continue to accrue until the date of payment.
Payments of interest made under this paragraph shall be in addition to such other remedies or
sanctions available to DEQ by virtue of Respondents’ failure to make timely payments under this
section, including but not limited to, payment of Stipulated Penalties pursuant to Section XVIII.
69. Respondents may, on a line item basis, object to any of the DEQ Remedial Action
Costs billed under this Section XV if Respondents believe DEQ has made a mathematical error
or believe DEQ incurred costs that are not within the definition of DEQ Remedial Action Costs.
Such objection shall be made in writing within 30 Days of receipt of the bill and must be sent to
Denise Martin, DEQ Site Response Section Manager. Any such objection shall specifically
identify the costs being objected to and the basis for objection. In the event of an objection,
Respondents shall within the 30 Day period pay all uncontested DEQ Remedial Action Costs to
DEQ in the manner described in this Section XV.
70. As soon as practical but no later than 60 Days after contesting costs, Respondents
either shall establish an interest-bearing escrow account in a federally-insured bank duly
chartered in the State of Montana and remit to that escrow account funds equivalent to the
amount of the contested costs or shall provide a guaranty by one of the methods provided for in
Section XXV (Financial Assurance) to provide for payment of such contested costs should they
become due and owing. Respondents shall send to the DEQ Project Coordinator a copy of the
transmittal letter and check paying the uncontested DEQ Remedial Action Costs, and a copy of
the correspondence that establishes and funds the escrow account or financial assurance,
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including, but not limited to, information containing the identity of the bank and bank account
under which the escrow account is established as well as a bank statement showing the initial
balance of the escrow account. Concurrently with the establishment of the escrow account or
financial assurance, Respondents shall initiate the dispute resolution procedures in Section XVI.
71. If DEQ prevails in the dispute or for any portion thereof, within five Days of the
resolution of the dispute, Respondents shall pay the sums due (with accrued interest, in
accordance with § 75-10-722, MCA) to DEQ in the manner described in this Section XV. If
Respondents prevail concerning any aspect of the contested costs, Respondents shall be
disbursed any balance of the escrow account along with accrued interest and released from any
obligation under any financial assurance herewith provided. The dispute resolution procedures
set forth in this paragraph in conjunction with the procedures set forth in Section XVI (Dispute
Resolution) shall be the exclusive mechanisms for resolving disputes regarding Respondents’
obligation to reimburse DEQ Remedial Action Costs.
XVI -
72. Unless otherwise expressly provided for in this AOC and subject to Paragraph 2,
the dispute resolution procedures of this Section XVI shall be Respondents’ exclusive
mechanism for resolving disputes arising under this AOC.
DISPUTE RESOLUTION
73. Respondents shall attempt to resolve any disagreements with DEQ concerning
implementation of this AOC, including the Work Plan, Work, Schedule, Deliverable or DEQ
Remedial Action Costs expeditiously and informally by notifying DEQ’s Project Coordinator in
writing within 10 Days after Respondents identify the dispute. If the Parties fail to resolve such
a dispute informally within 14 Days (the “Negotiation Period”) after Respondents have identified
the dispute in writing, the Respondents may invoke the dispute resolution procedure in Paragraph
75. The Negotiation Period may be extended at the sole discretion of DEQ.
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74. Any agreement reached by the Parties pursuant to Paragraph 73 shall be in writing
and shall, upon signature by both Parties, be incorporated into and become an enforceable part of
this AOC.
75. If the Parties are unable to reach an agreement within the Negotiation Period,
within 10 Days of the expiration of that Negotiation Period, DEQ’s determination shall be
deemed a final determination and Respondents, in their sole discretion, shall have the
opportunity to file for judicial review. Respondents must initiate judicial review within 30 Days
of DEQ’s final determination. In the event Respondents (or a Respondent) seek judicial review:
(i) DEQ shall not file a Mont. R. Civ. Pro. Rule 12(b)(1) motion to dismiss based on subject
matter jurisdiction of the court to review and resolve the dispute so long as the petition for
judicial review addresses only implementation of the AOC, including the Work Plan, Work,
Schedule, Deliverable or DEQ Remedial Action Costs and is not based, in whole or in part, on
the Comprehensive Environmental Response, Compensation, and Liability Act or the National
Contingency Plan; (ii) Respondents (or a Respondent) shall not base the petition for judicial
review, in whole or in part, on a claim that DEQ did not comply with the rulemaking provisions
of the Montana Administrative Procedures Act; (iii) venue for such judicial review shall be the
First Judicial District Court in Lewis & Clark County, Montana; and (iv) the standard for judicial
review shall be whether the Respondents (or a Respondent) have demonstrated, on the
administrative record, that DEQ’s final determination was arbitrary and capricious or otherwise
not in accordance with law.
76. Respondents’ remaining obligations under this AOC shall not be tolled by
submission of any objection for dispute resolution under this section. Following resolution of
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the dispute, as provided by this section, Respondents shall fulfill the requirement that was the
subject of the dispute in accordance with the agreement or decision reached.
77. Failure of Respondents to invoke the Negotiation Period, or proceed with judicial
review within the timeframes provided, results in a waiver of the right to request further dispute
resolution of that particular dispute.
XVII -
78. Respondents agree to perform all requirements of this AOC according to the
Schedule approved by DEQ, as may be modified from time to time, unless the performance is
delayed by a force majeure.
FORCE MAJEURE
79. If any event occurs or has occurred that reasonably may delay the performance of
any obligation under this AOC, whether or not caused by a force majeure event, Respondents
shall notify DEQ orally within 48 hours of when Respondents first knew that the event
reasonably might cause a delay. Within three Days thereafter, Respondents shall provide to
DEQ in writing an explanation and description of the reasons for the delay; the anticipated
duration of the delay; all actions taken or to be taken to prevent or minimize the delay; a
schedule for implementation of any measures to be taken to prevent or mitigate the delay or the
effect of the delay; Respondents’ rationale for attributing such delay to a force majeure event if
they intend to assert such a claim; and a statement as to whether, in the opinion of Respondents,
such event may cause or contribute to an endangerment to public health, safety, or welfare or the
environment. Failure to comply with the above requirements shall preclude Respondents from
asserting any claim of force majeure for that event for the period of time of such failure to
comply and for any additional delay caused by such failure.
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80. Respondents shall bear the burden of proving by a preponderance of the evidence
that any failure to comply with the requirements of this AOC or of an approved Work Plan or
other Deliverable is due to force majeure.
81. If DEQ agrees that the delay or anticipated delay is attributable to a force majeure
event, the time for performance of the obligations under this AOC that are affected by the force
majeure event will be extended by DEQ for such time as is necessary to complete those
obligations. An extension of the time for performance of the obligations affected by the force
majeure event shall not, of itself, extend the time for performance of any other obligation. If
DEQ does not agree that the delay or anticipated delay has been or will be caused by a force
majeure event, DEQ will notify Respondents in writing of DEQ’s decision. If DEQ agrees that
the delay is attributable to a force majeure event, DEQ will notify Respondents in writing of the
length of the extension, if any, for performance of the obligations affected by the force majeure
event, including any extension of time for performance of any other obligations.
XVIII -
82. Respondents shall be liable to DEQ for stipulated penalties in the amounts set
forth in this Section XVIII for failure to comply with the requirements of this AOC specified
below, unless excused under Section XVII (Force Majeure) or otherwise by the DEQ in writing.
“Compliance” by Respondents shall include completion of all activities required by this AOC,
including but not limited to implementation of the ROD in accordance with all applicable
requirements of law and this AOC, within the specified time Schedule, as well as submission of
Deliverables within the specified time Schedule, and payment of DEQ Remedial Action Costs as
specified in Section XV (Reimbursement of Costs).
STIPULATED PENALTIES
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83.
A. In the event that Respondents violate the provisions of this AOC, DEQ may
assess, and Respondents shall pay, by tendering to DEQ within 30 Days of
Respondents’ receipt of a written demand from DEQ for payment of such
penalties, the sum set forth below as stipulated penalties for each stipulated
penalty event. Stipulated penalties may be assessed for each Day during which
such violation, delay, or failure occurs or continues, including weekends or
holidays. The demand shall specify the events giving rise to Respondents’
asserted liability for stipulated penalties and the amount of such penalties. In
evaluating whether to exercise its discretion to impose any such penalties, DEQ
shall consider the good faith efforts of the Respondents to comply with their
obligations herein.
Stipulated Penalty Amounts
B. The following stipulated penalties shall accrue per violation per Day for any
noncompliance:
Days of Violation 1-14 Days $ 500 Amount/Day
15-30 Days $ 2,500
31 or more Days $ 5,000
C. All penalties shall begin to accrue on the Day after the complete performance is
due or the Day a violation occurs, and shall continue to accrue through the final
Day of the correction of the noncompliance or completion of the activity.
Nothing in this AOC shall prevent the simultaneous accrual of stipulated penalties
for separate violations of this AOC. Within three Days of DEQ’s determination
that Respondents failed to comply with a requirement of this AOC, DEQ shall
give Respondents written notification of the failure and describe the
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noncompliance. DEQ shall send Respondents a written demand for payment of
the penalties. Penalties shall accrue as provided in the preceding paragraph and
specifically include any period of time prior to DEQ’s written notice to
Respondents of the violation, with such period of time not to exceed seven Days.
However, if DEQ does not provide written notice to the Respondents within three
Days of DEQ’s determination that Respondents failed to comply with a
requirement of this AOC, penalties will begin to accrue upon the date
Respondents receive notice of such noncompliance.
D. All penalties accruing under this section shall be due and payable to DEQ within
30 Days of Respondents’ receipt from DEQ of a demand for payment of the
penalties, unless Respondents invoke the dispute resolution procedures under
Section XVI (Dispute Resolution). All payments to DEQ under this section shall
be paid according to the procedures outlined in Section XV (Reimbursement of
Costs), and shall indicate that the payment is for stipulated penalties. All
penalties recovered under this Section must be deposited into the Environmental
Quality Protection Fund as required by § 75-10-704, MCA.
E. Copies of checks or wire transfers paid pursuant to this section, and
accompanying transmittal letters, shall be sent to DEQ’s Project Coordinator and
to:
Cynthia D. Brooks Special Assistant Attorney General Montana Department of Environmental Quality
P.O. Box 200901
Helena, MT 59620-0901
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F. The payment of penalties shall not alter in any way Respondents’ obligation to
complete performance of the Work required under this AOC.
G. In the event Respondents (or a Respondent) invoke the provisions of Paragraph
73, any penalties shall be stayed either until DEQ and the Respondents reach an
agreement (as provided in Paragraph 74) or DEQ has made a final determination
(as provided in Paragraph 75). In the event the Respondents (or a Respondent)
invoke judicial review (as provided in Paragraph 75) any penalties as to the
petitioning Respondent shall be stayed until the district court renders its decision,
unless the dispute resolution was initiated by Respondents (or a Respondent) in
bad faith or to cause delay. In addition, penalties shall run from the date of the
district court’s decision during the pendency of any appeal by the Respondents (or
a Respondent). Penalties shall be paid within 30 Days after the dispute is
resolved by agreement (as provided in Paragraph 74) or by judicial decision. If
Respondents (or a Respondent) are successful on appeal and the court reduces the
penalties, DEQ shall reimburse the penalties within 30 Days of the judicial
decision.
H. If Respondents fail to pay stipulated penalties when due, DEQ may institute
proceedings to collect the penalties, as well as interest. Respondents shall pay
interest on the unpaid balance, which shall begin to accrue 30 Days after the date
of demand made pursuant to subsection C above. Nothing in this AOC shall be
construed as prohibiting, altering, or in any way limiting the ability of DEQ to
seek any other remedies or sanctions available by virtue of Respondents’ violation
of this AOC or of the statutes and regulations upon which it is based; provided,
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however, that DEQ shall not seek duplicative penalties for the same violation.
Notwithstanding any other provision of this section, DEQ may, in its
unreviewable discretion, waive any portion of stipulated penalties that have
accrued pursuant to this AOC.
I. DEQ hereby finds that the provisions of this AOC, including this Section XVIII,
are designed to protect the public health, safety, and welfare and the environment
by achieving a prompt, complete and efficient remediation of the Facility. These
stipulated penalties provisions are integral and essential to the Parties’ desire that
the provisions of this AOC be, to the maximum extent achievable, self-executing
and self-enforcing.
XIX -
84. In consideration of the actions that will be performed and the payments that will
be made by Respondents under the terms of this AOC, and except as otherwise specifically
provided in this AOC, DEQ covenants not to sue Respondents to require performance of the
Work and payment of DEQ Remedial Action Costs. DEQ also covenants not to sue Respondents
for damages for injury to, destruction of, or loss of natural resources and the cost of any natural
resource damage assessment relating to the Facility. This covenant not to sue shall take effect
upon the Effective Date and is conditioned upon the complete and satisfactory performance by
Respondents of all obligations under this AOC, including, but not limited to, performance of the
ROD and payment of DEQ Remedial Action Costs pursuant to Section XV. This covenant not
to sue extends only to the Respondents and does not extend to any other person.
COVENANT NOT TO SUE BY DEQ
XX -
85. Except as specifically provided in this AOC, nothing in this AOC shall limit the
power and authority of DEQ to take, direct, or order all actions necessary to protect public
RESERVATION OF RIGHTS BY DEQ
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health, safety, or welfare or the environment or to prevent, abate, or minimize an actual or
threatened release of hazardous or deleterious substances at or from the Facility. Further,
nothing in this AOC shall prevent DEQ from seeking legal or equitable relief to enforce the
terms of this AOC, from taking other legal or equitable action as it deems appropriate and
necessary, or from requiring Respondents in the future to perform additional activities pursuant
to CECRA or any other applicable law.
86. Nothing in this AOC precludes DEQ from asserting any claims, causes of action,
or demands for indemnification, contribution, or cost recovery against any persons not Parties to
this AOC. Nothing herein diminishes the right of DEQ to pursue any such persons to obtain
additional remedial action costs or remedial action, or to enter into settlements providing
contribution protection to such parties, including claims DEQ may have under § 75-10-719(2),
MCA.
87. The covenant not to sue set forth in Section XIX above does not pertain to any
matters other than those expressly identified therein. DEQ reserves, and this AOC is without
prejudice to, all rights against Respondents with respect to all other matters, including, but not
limited to:
A. Liability for performance of remedial action other than the Work;
B. Criminal liability;
C. Liability arising from the past, present, or future disposal, release or threat of
release of hazardous or deleterious substances outside of the Facility; and
D. Liability for violations of state or federal law or regulations.
88. In the event DEQ determines that Respondents have ceased implementation of
any portion of the Work, is seriously or repeatedly deficient or late in their performance of the
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Work, or are implementing the Work in a manner which may cause an endangerment to public
health, safety or welfare or the environment, DEQ may assume the performance of all or any
portion of the Work as DEQ determines necessary. Respondents may invoke the procedures set
forth in Section XVI (Dispute Resolution) to dispute DEQ’s determination that takeover of the
Work is warranted under this paragraph. Costs incurred by DEQ in performing the Work
pursuant to this paragraph shall be considered DEQ Remedial Action Costs that Respondents
shall pay pursuant to Section XV (Reimbursement of Costs). If Respondents fail to pay DEQ’s
costs incurred pursuant to this paragraph as required by Section XV (Reimbursement of Costs),
DEQ may also utilize Respondents’ financial assurance contained within Section XXV.
Notwithstanding any other provision of this AOC other than Section XVI, DEQ retains all
authority and reserves all rights to take any and all remedial actions authorized by law.
XXI -
89. Other than as set forth in Section XVI, Respondents covenant not to sue and agree
not to assert any and all direct or indirect claims or causes of action against the State of Montana,
or its departments, agencies, instrumentalities, officials, agents, contractors, subcontractors,
employees and representatives, arising out of or related to the Facility, the Work, DEQ Remedial
Action Costs, or this AOC, including, but not limited to:
COVENANT NOT TO SUE BY RESPONDENTS
A. Any claim under federal, state or local statutory or common law;
B. Any claim, including, but not limited to, contribution claims, motions for joinder
and third-party claims, related to any and all lawsuits involving third parties;
C. Any direct or indirect claim for reimbursement from the Environmental Quality
Protection Fund established in § 75-10-704, MCA, the Orphan Share Account
established in § 75-10-743, MCA, or any other State of Montana fund;
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D. Claims based on DEQ’s oversight of the Work under CECRA, CERCLA, or any
other provision of law; and
E. Claims for damages for injury to, destruction of, or loss of natural resources and
the cost of any natural resource damage assessment.
90. Respondents further covenant and agree to use best efforts to protect the integrity
of all engineering controls (including but not limited to monitoring wells and soil vapor
extraction systems) associated with the remedial actions at the Facility.
XXII -
91. Except as expressly provided in Section XIX (Covenant Not to Sue by DEQ),
nothing in this AOC constitutes a satisfaction of or release from any claim or cause of action
against Respondents or any person not a Party to this AOC, for any liability such person may
have under CECRA, CERCLA, other statutes, or common law, including but not limited to any
claims of DEQ for costs, damages and interest under CECRA.
OTHER CLAIMS
XXIII -
92. The Parties agree that this AOC constitutes an administrative settlement for
purposes of § 75-10-719, MCA, and that Respondents are entitled, as of the Effective Date, to
protection from contribution actions or claims as provided by § 75-10-719(1), MCA, for “matters
addressed” in this AOC. The “matters addressed” in this AOC are the Work and payment of
DEQ Remedial Action Costs.
CONTRIBUTION
XXIV -
93. By issuance of this AOC, DEQ assumes no liability for injuries or damages to
persons or property resulting from any acts or omissions of Respondents. Respondents shall
indemnify, save and hold harmless the State of Montana, its departments, agencies,
instrumentalities, officials, agents, contractors, subcontractors, employees and representatives
INDEMNIFICATION
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from any and all claims or causes of action arising from, or on account of, negligent or other
wrongful acts or omissions of Respondents, their officers, directors, employees, agents,
contractors, or subcontractors, in carrying out actions pursuant to this AOC. This
indemnification shall specifically include any joinder of the State of Montana to an action
between Respondents and any third party. In addition, Respondents agree to pay the State of
Montana all reasonable costs incurred by the State of Montana, including but not limited to
reasonable attorneys’ fees and other reasonable expenses of litigation and settlement, arising
from or on account of claims made against the State of Montana based on negligent or other
wrongful acts or omissions of Respondents, their officers, directors, employees, agents,
contractors, subcontractors and any persons acting on their behalf or under its control, in carrying
out activities pursuant to this AOC. The State of Montana shall not be held out as a party to any
contract entered into by or on behalf of Respondents in carrying out activities pursuant to this
AOC. Neither Respondents nor any of their officers, directors, employees, agents, contractors,
subcontractors and any persons acting on their behalf or under its control shall be considered an
agent of the State of Montana.
94. The State of Montana shall give Respondents notice of any claim for which the
State of Montana plans to seek indemnification pursuant to this section and shall provide an
opportunity for Respondents to raise objections thereto prior to settling such claim.
95. Respondents waive all claims against the State of Montana for damages or
reimbursement or for set-off of any payments made or to be made to the State of Montana,
arising from or on account of any contract, agreement, or arrangement between Respondents and
any person for performance of Work on or relating to the Facility, including, but not limited to,
claims on account of construction delays. In addition, Respondents shall indemnify and hold
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harmless the State of Montana with respect to any and all claims for damages or reimbursement
arising from or on account of any contract, agreement, or arrangement between Respondents and
any person for performance of Work on or relating to the Facility, including, but not limited to,
claims on account of construction delays.
XXV -
96. Pursuant to § 75-10-719(9), MCA, within 30 Days of the Effective Date,
Respondents shall establish and maintain financial assurance for the benefit of DEQ in the
amount of $531,302. Respondents shall provide financial assurance by any one method or
combination of methods, including but not limited to, insurance, guaranty, performance or other
surety bond, letter of credit, qualification as a self-insurer, escrow account, or other
demonstration of financial capability.
FINANCIAL ASSURANCE
97. This financial assurance is necessary to secure the full and final completion of
Work by Respondents, including the long-term operation and maintenance of the Facility,
including, but not limited to, in the event of CVS’ dissolution or bankruptcy. The financial
assurance provided pursuant to this section is in the form, substance and amount satisfactory to
DEQ, determined in DEQ’s reasonable discretion. In the event that DEQ determines at any time
that the financial assurances provided pursuant to this Section XXV (including, without
limitation, the instrument(s) evidencing such assurances) are inadequate, Respondents shall,
within 60 Days of receipt of notice of DEQ’s determination, obtain and present to DEQ
additional financial assurance as outlined in Paragraph 96 above. In addition, if at any time DEQ
notifies Respondents that the anticipated cost of completing the operation and maintenance
actions has increased, then, within 60 Days of such notification, Respondents shall obtain and
present to DEQ for approval a revised form of financial assurance (otherwise acceptable under
this section) that reflects such cost increase. In the event Respondents are unable to demonstrate
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financial ability to complete the Work, Respondents shall notify DEQ of such inability in writing
and meet with the DEQ within seven Days of such notice to determine, performance of any
remaining activities required under this AOC.
98. If, after the Effective Date, Respondents can show that the estimated cost to
complete the remaining operation and maintenance actions has diminished below the amount set
forth in Paragraphs 96, as may be increased by Paragraph 97, Respondents may, on any
anniversary date of the Effective Date, or at any other time agreed to by the Parties, propose a
reduction in the amount of the financial assurance provided under this section to the estimated
cost of the remaining operation and maintenance actions to be performed. Respondents shall
submit a proposal for such reduction to DEQ, in accordance with the requirements of this
section, and may reduce the amount of the financial assurance after receiving written approval
from DEQ. In the event of a dispute, Respondents may seek dispute resolution pursuant to
Section XVI (Dispute Resolution). Respondents may reduce the amount of financial assurance
in accordance with the written agreement of DEQ or any judicial decision resolving the dispute.
XXVI -
99. The DEQ Project Coordinator may make modifications to any Deliverable or
Schedule in writing or by oral direction subject to the provisions of Section XVI (Dispute
Resolution). Any oral modification is not binding until it is promptly memorialized in writing by
DEQ but shall have as its effective date the date of the DEQ Project Coordinator’s oral direction.
Any other requirements of this AOC may be modified in writing by mutual agreement of the
Parties.
MODIFICATIONS
100. If Respondents seek permission to deviate from any approved Deliverable or
Schedule, Respondents’ Project Coordinator shall submit a written request to DEQ for approval
outlining the proposed modification and its basis. The written request may be made to DEQ via
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electronic mail to the DEQ Project Coordinator. Respondents may not proceed with the
requested deviation until receiving written approval from the DEQ Project Coordinator.
101. No informal advice, guidance, suggestion, or comment by the DEQ Project
Coordinator or other DEQ representatives regarding a Deliverable, Schedule, or any other
writing submitted by Respondents shall relieve Respondents of their obligation to obtain any
formal approval required by this AOC, or to comply with all requirements of this AOC, unless it
is formally modified.
XXVII -
102. If DEQ determines that additional remedial actions not addressed in the ROD are
necessary to protect public health, welfare, or safety, or the environment, DEQ will notify
Respondents of that determination. Unless otherwise stated by DEQ, within 60 Days of receipt
of notice from DEQ that additional remedial actions are necessary to protect public health,
welfare, or safety, or the environment, Respondents shall submit a Work Plan for the additional
remedial actions to DEQ for approval, subject to the provisions of Section VIII. The Work Plan
shall conform to the applicable requirements of Section VIII (Work to Be Performed) of this
AOC. Upon DEQ’s approval of the Work Plan pursuant to Section VIII, the plan shall become
incorporated into this AOC. DEQ shall be responsible for determining whether and in what
format any modifications or amendments to the ROD are necessary to address the additional
remedial actions. Respondents shall implement the Work Plan for additional remedial actions in
accordance with the provisions and Schedule contained therein. This section does not alter or
diminish the DEQ Project Coordinator’s authority to make modifications to any Deliverable or
Schedule pursuant to Section XXVI (Modifications) subject to the provisions of Section XVI
(Dispute Resolution).
ADDITIONAL WORK
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XXVIII -
103. When DEQ determines that all Work has been fully performed in accordance with
this AOC, with the exception of any continuing obligations required by this AOC, including
payment of DEQ Remedial Action Costs, and record retention under Section XI, DEQ will
provide written notice to Respondents.
NOTICE OF COMPLETION OF WORK
104. If DEQ determines that any such Work has not been completed in accordance
with this AOC, DEQ will notify Respondents, provide a list of the deficiencies, and require that
Respondents correct such deficiencies within a defined period of time. Subject to the provisions
of Section XVI, failure by Respondents to correct the deficiencies within the defined period of
time shall be a violation of this AOC, subject to stipulated penalties.
XXIX -
105. This AOC and Attachment A constitute the final, complete and exclusive
agreement and understanding among the Parties with respect to the settlement embodied in this
AOC. The Parties acknowledge that there are no representations, agreements or understandings
relating to the settlement other than those expressly contained in this AOC.
INTEGRATION/APPENDICES
XXX -
106. This AOC shall terminate when Respondents certify that all activities required
under this AOC have been performed (the “Certification”), and DEQ has Approved the
Certification. DEQ shall approve or disapprove the Certification within six months of
Respondents’ submittal of the Certification. Sections I.2 (Jurisdiction and General Matters), XI
(Record Retention), XV (Reimbursement of Costs), XIX (Covenant Not to Sue by DEQ), XX
(Reservation of Rights by DEQ), XXI (Covenant Not to Sue by Respondents), XXII (Other
Claims), XXIII (Contribution), XXIV (Indemnification), XXX (Termination and Satisfaction),
and XXXI (Admissibility of Data) shall survive termination of this AOC. If DEQ approves the
TERMINATION AND SATISFACTION
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Certification, Respondents shall not be liable for any additional remedial actions at the Facility,
except, if, subsequent to the Certification,
A. Conditions at the Facility, previously unknown to DEQ, are discovered, or
B. New information about the Facility is received by DEQ and indicates that the
remedial action is not adequate to protect the public health, welfare or safety, or
the environment.
XXXI -
107. Except as provided herein, Respondents hereby stipulate to the admissibility of
any Deliverables prepared by and submitted to DEQ by Respondents or their contractors
pursuant to this AOC in any judicial or administrative proceedings brought by DEQ and arising
out of or related to the subject matter of this AOC.
ADMISSIBILITY OF DATA
XXXII -
108. This AOC shall become effective after the AOC is signed by DEQ following the
notice and public comment period referenced in Section XXXIV.
EFFECTIVE DATE
XXXIII -
109. Each of the signatories of this AOC states that he or she is fully authorized to
enter into the terms and conditions of this AOC and to bind legally the Party represented by him
or her to the AOC.
AUTHORITY OF SIGNATORIES
XXXIV -
110. After signature by Respondents but before final approval and signature by DEQ,
DEQ shall make this AOC available for public comment as required by § 75-10-723(2), MCA,
and in accordance with § 75-10-713, MCA.
PUBLIC NOTICE AND COMMENT
111. After completion of the notice and comment period described in Paragraph 110,
DEQ may withdraw or withhold consent to this AOC or may request changes to the AOC based
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on the comment received. If DEQ requests changes, Respondents may elect to withdraw their
consent. Otherwise, Respondents consent to this AOC without further notice.
IT IS SO AGREED:
STATE OF MONTANA
DEPARTMENT OF ENVIRONMENTAL QUALITY
Richard H. Opper, Director Date
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CITY OF BOZEMAN
Date
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CVS PHARMACY, INC.
Date
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