October 2001
Ciba Geigy Consent Decree
Background
A. The United States of America ("United States"), on behalf of the Administrator of the United States Environmental Protection Agency ("EPA"), filed a complaint in this matter naming Ciba Specialty Chemicals Corporation and Novartis Corporation as defendants pursuant to Sections 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9606, 9607.
B. The United States in its complaint seeks, inter alia: (1) reimbursement of costs incurred by EPA and the Department of Justice for response actions at the Ciba-Geigy Superfund Site in Toms River, New Jersey, together with accrued interest; and (2) performance of studies and response work by the Settling Defendants at the Site consistent with the National Contingency Plan, 40 C.F.R. Part 300 (as amended) ("NCP").
C. In accordance with the NCP and Section 121(f)(1)(F) of CERCLA, 42 U.S.C. § 9621(f)(1)(F), EPA notified the State of New Jersey (the "State") on January 25, 2001, of negotiations with potentially responsible parties regarding the implementation of the remedial design and remedial action for the Site, and EPA has provided the State with an opportunity to participate in such negotiations and be a party to this Consent Decree. In a letter dated October 25, 2000 from Assistant Commissioner Susan B. Boyle of the New Jersey Department of Environmental Protection to Deputy Regional Administrator William Muszynski of the EPA - Region II, the State concurred with the recommended remedial design and remedial action in the ROD and agreed that it will meet all State statutes and requirements.
D. In accordance with Section 122(j)(1) of CERCLA, 42 U.S.C. § 9622(j)(1), EPA notified the U.S. Fish & Wildlife Service of the United States Department of Interior and the National Oceanic and Atmospheric Administration of the United States Department of Commerce on January 25, 2001, of negotiations with potentially responsible parties regarding the release of hazardous substances that may have resulted in injury to the natural resources under Federal trusteeship and encouraged the trustee(s) to participate in the negotiation of this Consent Decree.
E. The defendants entering into this Consent Decree (hereinafter "Settling Defendants" whether singular or plural) do not admit any liability to the Plaintiff arising out of the transactions or occurrences alleged in the complaint, nor do they acknowledge that the release or threatened release of hazardous substance(s) at or from the Site constitutes an imminent or substantial endangerment to the public health or welfare or the environment.
F. Pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, EPA placed the Site on the National Priorities List, set forth at 40 C.F.R. Part 300, Appendix B, by publication in the Federal Register on September 8, 1983.
G. In response to a release or a substantial threat of a release of hazardous substances at or from the Site, EPA commenced a Remedial Investigation and Feasibility Study ("RI/FS") for the Site pursuant to 40 C.F.R. § 300.430. On October 18, 1995, an Administrative Order on Consent (ACO) was executed by Jeanne M. Fox, EPA Regional Administrator. This AOC allowed the Ciba-Geigy Corporation to perform a Feasibility Study for the second operable unit (hereinafter "OU2"), which consists of the Potential Source Areas at the Site in Toms River, New Jersey.
H. The Settling Defendants, completed a Draft Feasibility Study ("FS") Report on August 31, 1999. A Final Feasibility Study Report was completed on July 11, 2000.
I. Pursuant to Section 117 of CERCLA, 42 U.S.C. § 9617, EPA published notice of the completion of the FS and of the proposed plan for remedial action on June 8, 2000, in a major local newspaper of general circulation. EPA held two public meetings on June 15 and July 12, 2000 to discuss the proposed plan. Also, EPA provided an opportunity for written and oral comments from the public on the proposed plan for remedial action. Copies of the transcripts of the public meetings are available to the public as part of the administrative record upon which the Regional Administrator based the selection of the response action.
J. The decision by EPA on the remedial action to be implemented at the Site is embodied in a final Record of Decision ("ROD"), executed on September 29, 2000, concerning which the State had an opportunity to review and provide EPA comments. The ROD includes EPA's selected remedy for the site as well as a responsiveness summary to the public comments. Notice of the Proposed Plan was published in accordance with Section 117(b) of CERCLA.
K. Based on the information presently available to EPA, EPA believes that the Work will be properly and promptly conducted by the Settling Defendants if conducted in accordance with the requirements of this Consent Decree and its appendices.
L. Solely for the purposes of Section 113(j) of CERCLA, the Remedial Action selected by the ROD and the Work to be performed by the Settling Defendants shall constitute a response action taken or ordered by the President.
M. The Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith and implementation of this Consent Decree will expedite the cleanup of the Site and will avoid prolonged and complicated litigation between the Parties, and that this Consent Decree is fair, reasonable, and in the public interest.
NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:
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