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Library: Rulings: Consent Decree | |||||||||||||||
United States District CourtSouthern District of Indiana IV PURPOSE AND SUMMARY OF ACTIVITIES 4. The general purpose of the activities to be per- formed pursuant to this Consent Decree is to excavate and remove quantities of soils, solid waste and other materials contaminated with polychlorinated biphenyls ("PCBs") and other associated materials from six sites in the Bloomington, Indiana area, to construct an incinerator pursuant to the schedule described in Section XXII below, and to incinerate said materials in an incin- erator in order to prevent and mitigate alleged threats to the public health, welfare and the environment The six sites are Neal's Landfill, Neal's Dump, Lemon Lane Landfill, Bennett's Dump, the Winston-Thomas Facility and the Anderson Road Landfill The duties that Westinghouse shall perform pursuant to this Consent Decree include the following (a) excavation and removal of materials contaminated with PCBs and other materials from the six sites; (b) sediment removal from streams or stream banks identified in paragraph 51; (c) construction of a federal, state and City approved high temperature incinerator to incinerate PCBs, associated hazardous wastes and solid waste in accordance with the requirements of federal, state and local law; (d) transportation to the incinerator and incineration of the materials contaminated with PCBs and other materials excavated and removed from the six sites; (e) disposal of the ash and other by-products of incineration in accordance with the requirements of laws (f) performance of interim remedial measures, including monitoring at each of the sites prior to excavation and removal; (g) proper closure and maintenance of each site once removal of materials contaminated with PCBs and other materials has been accomplished; and (h) post-closure monitoring at each of the sites. V INCINERATOR OBLIGATIONS 5. Westinghouse acknowledges that incineration of materials contaminated with PCBs is technically feasible and that a properly designed, constructed and operated incinerator will destroy PCBs in the materials to be incinerated under this Consent Decree to the destruction efficiency required by 40 C. F. R. Part 761 and the requirements of this Consent Decree 6. At its expense and as expeditiously as possible, Westinghouse shall cause to be designed, constructed and operated a high temperature incinerator to incinerate PCBs and materials contaminated with PCBs and any hazardous wastes or hazardous substances associated with those materials. The incinerator shall be designed, constructed and operated in accordance with all applicable requirements of federal, state and local law {as defined in Section XXI), including but not limited to the requirements of this Consent Decree and the Toxic Substances Control Act ("TSCA"), 15 U S C SS 2601 et seq , the Resource, Conservation and Recovery Act {"RCRA"), 42 U S C SS 6901 et seq , the Clean Air Act, 42 U S C SS 740l et seq , the Clean Water Act, 33 U S C SS 1251 et seq , and regulations thereunder Westinghouse guarantees the performance of this incinerator in compliance with all applicable federal, state and local law, including guaranteeing expeditiously to undertake all redesign, repair or rebuilding which might be necessary to achieve that performance 7. (a) At the time of the submission of the permit applications for the construction and/or design of the incinera- tor facility pursuant to Section XXII, Westinghouse shall prepare and submit technical plans for the design and performance of the incinerator and for ash disposal to the United States, State and City for their approval. The City shall provide its initial comments as to the City's assessment of the adequacy of the technical plans within ninety days of submission of those plans. In consideration of the mutual promises and obligations undertaken in this Consent Decree, including but not limited to the City's provision of solid waste and the City's provision of real estate, the City may impose additional, more stringent requirements than contained in the plans if the City determines that they are necessary to mitigate or prevent an unreasonable risk of injury to human health or the environment from the design or performance of the incinerator. The City may impose such additional requirements provided those requirements are not in conflict with any state or federal regulation or permit require- ment. As used here, the term conflict means that it would be impossible for Westinghouse to comply with both the City and state or federal regulation or permit. If a conflict exists, the state or federal regulation or permit shall be controlling. Westinghouse and the City shall use their best efforts to resolve as expeditiously as possible any disputes and to minimize any delays attendant on obtaining City approval of the technical plans. (b) If Westinghouse and the City are unable to resolve informally any dispute as to the imposition of additional requirements in a timely manner, Westinghouse shall have the right to a hearing before the City prior to the imposition of such additional requirements. The City shall initiate such hearing within ninety days of receiving Westinghouse's request for a hearing. The hearing before the City, or a hearing panel appointed by the City, shall be conducted in accordance with the adjudicative proceedings of the Model State Administrative Procedure Act of 1981 of the National Commissioners on Uniform State Laws. At the conclusion of the hearing, the City or the hearing panel shall render its decision to impose or not impose additional requirements. In any event, the City shall render its decision as to imposition of additional requirements (I) for the solid waste incinerator, no later than sixty days after the published proposal of the last state construction permit or approval necessary for construction of a solid waste incinerator, and (ii) for the hazardous waste and PCB incinerator, no later than sixty days after the published proposal of the last federal or state permit or approval Westinghouse is required to obtain in order to operate a hazardous waste and PCB incinerator. (c) If Westinghouse or any party wishes to challenge the City's decision, any party to this Decree may seek judicial review of the City's decision in this Court within thirty days of the City's decision. Judicial review shall not be de- novo and the Court shall not overturn the City's decision unless it finds that the City's findings of fact are not supported by substantial evidence in the record before the City. (d) Neither the participation of the State or the United States, nor the lack thereof, in any proceeding before the City or any judicial review by this Court of the City's decisions as to additional requirements under this paragraph shall affect the rights or procedures of the State or the United States in their respective permit or approval processes. 8. In addition to monitoring required and authorized under state and federal law, the performance of the incinerator, both during test burns and operations, shall be audited and moni- tored by an independent testing organization. This testing organ- ization shall be retained by the City, shall be acceptable to Westinghouse and the City as to technical competence and shall be paid for by Westinghouse. 9. The City may require Westinghouse to perform con- tinuous monitoring of operating conditions at the incinerator, including but not limited to continuous monitoring of temperature and dwell time. In addition to any monitoring devices required and authorized under state and federal law, Westinghouse shall install and maintain, at its sole cost and expense, devices external to the incinerator facility for continuous display of operating conditions determined by the City to be related to health and safety. The number and types of such external devices shall be established as determined by the City to be reasonably necessary and feasible to display operating conditions relevant to health and safety. 10. The high temperature incinerator shall consist of two units, each having a capacity to handle consistently 150 tons per day of mixed solid waste and excavated material throughput. With these units Westinghouse shall use its best efforts to incinerate all the materials excavated and transported to the incinerator pursuant to Sections VIII and XI (estimated at 650,000 cubic yards) within eleven years of the date that Westinghouse receives all required permits or approvals to begin incinerating materials contaminated with PCBs. In no event shall Westinghouse fail to incinerate all of these materials within fifteen years from the date Westinghouse receives all required permits or approvals to begin incinerating materials contaminated with PCBs. 11. The incinerator shall be designed and operated to experience a minimum of down time and shall be fully opera- tional a minimum of 300 days per year. During this minimum 300-day per year period, Westinghouse shall accept solid waste generated within the City and County of up to 220 tons per day, regardless of whether the incinerator is operating, and shall have full responsibility for all further proper handling and disposal of such solid waste. 12. When the incinerator is inoperative during the remaining sixty-five days or less per year {which need not be continuous), Westinghouse shall maintain storage facilities to accept up to 600 tons of solid waste prior to refusing to accept solid waste from the City and County. Thereafter, during these sixty-five days, the City and County, as the case may be, shall have the responsibility to dispose properly of such solid waste. 13. As part of the design, construction and opera- tion of the high temperature incinerator, Westinghouse shall design, construct and operate necessary associated facilities and processes at the incinerator site, including but not limited to separate storage facilities for solid waste and materials excavated pursuant to Sections VIII and XI of this Decree, pollution control devices, site drainage devices, ash collection, storage and handling equipment, buildings, roadways, parking and landscaping, so as to ensure safe and efficient operation of the high temperature incinerator. Westinghouse shall include the details of these associated facilities and processes in the tech- nical plans submitted to the United States, State and City for their approval pursuant to paragraph 7 above and as part of its permit applications. 14. As part of its obligations to operate the incinerator, Westinghouse shall handle, store and dispose of all by-products of the incinerator operation in accordance with all applicable local, state, and federal laws and regulations, including but not limited to the requirements of RCRA and regulations promulgated thereunder. Westinghouse shall include provisions for handling, storing and disposing of such solid, liquid or gaseous by- products, including but not limited to incinerator ash and pollution control equipment residues in its permit applications and in the incinerator technical plans submitted to the United States, State and City for their approval pursuant to paragraph 7 above. To the extent Westinghouse wishes to use facilities in the City or County to dispose of these solid, liquid or gaseous incinerator by-products, Westinghouse must meet the requirements of Section VII of this Decree. 15. Pursuant to and subject to the terms of Section VI below: The City and County shall each, through ordinance, direct that solid waste generated within the City and County, respec- tively, be delivered to the incinerator site for use as fuel for the incinerator. If the solid waste supplied by either the City or County is not usable as fuel, or if either the City or County is unable to deliver an adequate supply of solid waste for fuel, Westinghouse shall use as a supplementary fuel supply gas, oil, coal or other conventional fuels to operate the high temperature incinerator in accordance with all permits and plan approvals. Neither the nondelivery of solid waste by the City or County nor Westinghouse's inability to use the solid waste as fuel shall relieve Westinghouse of its obligations under this Consent Decree, including but not limited to the obligation to incinerate the materials excavated pursuant to Sections VIII and XI. 16. The City and County shall each use its best efforts to assist Westinghouse in the sale of any excess energy (steam or electricity) which may be generated through operation of the high temperature incinerator. Failure to obtain customers for such excess energy or failure of the incinerator to produce such excess energy shall not relieve Westinghouse of its obligations under this Consent Decree. To the extent permitted by law, the City and County shall each purchase steam or electricity produced by the incinerator if: (a) the City or County determine in its sole judgment that it needs such energy: and (b) the price charged by Westinghouse is no greater than the least cost alternative. 17. Other than materials removed from the sites and areas identified in Sections VIII and XI and Exhibits 1 through 11 inclusive of this Consent Decree, no hazardous wastes, hazard- ous substances or materials contaminated with PCBs may be pro- cessed in the incinerator. This prohibition may be modified with the express written approval of the United States, State, City and County to address any future discoveries of materials con- taminated with PCBs in and around Monroe County. 18. The transportation of materials excavated from the sites and areas set forth in Sections VIII and XI and Exhibits 1 through 11 inclusive within the City limits of Bloomington shall be along routes and at times approved by the City pursuant to a transportation plan submitted to the City in accordance with paragraph 45. 19. In consideration for the undertakings of Westinghouse under this Consent Decree, and subject to the conditions and rights set
forth herein, the City shall convey in fee simple or lease to Westinghouse
a site of approximately sixteen acres exclusively for construction and operation
of the incinerator and related activities approved by the City. The legal
description of the site is attached hereto as Exhibit 12. The terms of any
lease shall not be inconsistent with the terms of this Consent Decree, and
any consideration and obligations required under the lease shall not be
greater than the consideration and obligations contained in this Consent Decree. 20. When all of the materials contaminated with PCBs and associated hazardous wastes and hazardous substances from the sites and areas identified in Sections VIII and XI and Exhibits I through 11 inclusive are incinerated, or at the end of fifteen years from the date Westinghouse receives all required permits or approvals to begin incinerating materials contaminated with PCBs, whichever is first to occur, the City shall have the following options: (a) To purchase the incinerator and all of the fixtures and personal property associated with the operation of the incinerator for the fair market value of an incinerator of nonhazardous solid waste. In such event, Westinghouse shall con- vey the land described in paragraph 19 to the City at no cost, or, if the land has been leased, Westinghouse shall return possession of the land to the City; or; (b) To direct Westinghouse to remove from Monroe County the incinerator and all associated fixtures and personal property, remove the debris, and convey the land described in paragraph 19 to the City at no cost, or, if the land has been leased, to return possession of the land to the City. The land shall be returned to the City by Westinghouse in a condition suitable for the same uses that were available at the time the land was conveyed or leased by the City to Westinghouse. Westinghouse shall, however, remain responsible for all closure and post-closure requirements, if any, for the site. In the event the City directs Westinghouse to remove the incinerator from Monroe County, Westinghouse shall continue to operate the incinerator for disposal of nonhazardous solid waste, pursuant to Sections V, VI and VII of this Consent Decree, for a period of three years from the time notice is given, to allow the City to develop and construct alternative disposal facilities. 21. The City and Westinghouse may reach a mutual agreement for the disposition and/or operation of the solid waste incinerator other than as specified above, provided that such mutual agreement is formally approved by the City after public hearing. 22. Except as provided in paragraphs 20 and 21, West- inghouse shall not transfer or assign ownership, leasehold or permit rights in the incinerator or the incinerator property, in whole or in part. |
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The Coaltion Opposed to PCB
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