October 2001
Ciba Geigy Consent Decree
II. JURISDICTION
1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1345, and 42 U.S.C. §§ 9606, 9607, and 9613(b). This Court also has personal jurisdiction over the Settling Defendants. Solely for the purposes of this Consent Decree and the underlying complaint, Settling Defendants waive all objections and defenses that they may have to jurisdiction of the Court or to venue in this District. Settling Defendants shall not challenge the terms of this Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree.
III. PARTIES BOUND
2. This Consent Decree applies to and is binding upon the United States and upon Settling Defendants and their successors and assigns. Any change in ownership or corporate status of a Settling Defendant including, but not limited to, any transfer of assets or real or personal property, shall in no way alter such Settling Defendant's responsibilities under this Consent Decree.
3. Settling Defendants shall provide a copy of this Consent Decree to each contractor hired to perform the Work (as defined below) required by this Consent Decree and to each person representing any Settling Defendant with respect to the Site or the Work and shall condition all contracts entered into hereunder upon performance of the Work in conformity with the terms of this Consent Decree. Settling Defendants or their contractors shall provide written notice of the Consent Decree to all subcontractors hired to perform any portion of the Work required by this Consent Decree. Settling Defendants shall nonetheless be responsible for ensuring that their contractors and subcontractors perform the Work contemplated herein in accordance with this Consent Decree. With regard to the activities undertaken pursuant to this Consent Decree, each contractor and subcontractor shall be deemed to be in a contractual relationship with the Settling Defendants within the meaning of Section 107(b)(3) of CERCLA, 42 U.S.C. § 9607(b)(3).
IV. DEFINITIONS
4. Unless otherwise expressly provided herein, terms used in this Consent Decree which are defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning assigned to them in CERCLA or in such regulations. Whenever terms listed below are used in this Consent Decree or in the appendices attached hereto and incorporated hereunder, the following definitions shall apply:
"Consent Decree" shall mean this Decree and all appendices attached hereto (listed in Section XXIX). In the event of conflict between this Decree and any appendix, this Decree shall control.
"Day" shall mean a calendar day unless expressly stated to be a working day. "Working day" shall mean a day other than a Saturday, Sunday, or Federal holiday. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or Federal holiday, the period shall run until the close of business of the next working day.
"Effective Date" shall be the effective date of this Consent Decree as provided in Paragraph 106.
"EPA" shall mean the United States Environmental Protection Agency and any successor departments or agencies of the United States.
"Future Response Costs" shall mean all costs, including, but not limited to, direct and indirect costs, that the United States incurs in reviewing or developing plans, reports and other items pursuant to this Consent Decree, verifying the Work, or otherwise implementing, overseeing, or enforcing this Consent Decree, including, but not limited to, payroll costs, contractor costs, travel costs, laboratory costs, the costs incurred pursuant to Sections VII and IX (including, but not limited to, the cost of attorney time and any monies paid to secure access and/or to secure or implement institutional controls including, but not limited to, the amount of just compensation), Section XV, and Paragraph 87 of Section XXI. Future Response Costs shall also include all Interim Response Costs, and all Interest on the Past Response Costs that has accrued pursuant to 42 U.S.C. § 9607(a) during the period from [date of signing of this Consent Decree], 2001, to the date of entry of this Consent Decree.
"Interim Response Costs" shall mean all costs, including direct and indirect costs, (a) paid by the United States in connection with the Site between February 2, 2001 (and payroll costs from January 27, 2001) and the Effective Date, or (b) incurred by the United States in connection with the Site prior to the Effective Date but paid after that date; provided, however, that Interim Response Costs do not include response costs incurred by the United States to oversee response actions by the Settling Defendants pursuant to either the previously executed Consent Decree (Civil Action No. 93-4675, entered December 1, 1993), or the Administrative Order on Consent (Index No. 11-CERCLA-95-0105, effective October 18, 1995.)
"Interest," shall mean interest at the rate specified for interest on investments of the EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507, compounded annually on October 1 of each year, in accordance with 42 U.S.C. § 9607(a). The applicable rate of interest shall be the rate in effect at the time the interest accrues. The rate of interest is subject to change on October 1 of each year.
"National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous Substances Pollution Contingency Plan promulgated pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto.
"NJDEP" shall mean the New Jersey Department of Environmental Protection and any successor departments or agencies of the State.
"Operation and Maintenance" or "O & M" shall mean all activities required to maintain the effectiveness of the Remedial Action as required under the Operation and Maintenance Plan approved or developed by EPA pursuant to this Consent Decree and the Statement of Work ("SOW").
"OU1 Consent Decree" shall mean the Consent Decree entered December 1, 1993 (as corrected on June 13, 1994), in Civil Action No. 93-4675 governing payment of EPA's response costs in connection with, and implementation of, the Record of Decision issued on April 24, 1989 which was modified by an Explanation of Significant Differences issued on September 30, 1993, calling for, inter alia, pumping and treating contaminated groundwater and recharging treated groundwater.
"Paragraph" shall mean a portion of this Consent Decree identified by an arabic numeral or an upper case letter.
"Parties" shall mean the United States and the Settling Defendants.
"Past Response Costs" shall mean all costs, including, but not limited to, direct and indirect costs, that the United States paid at or in connection with the Site for the period of June 1, 1992 through February 2, 2001 (and payroll costs from May 31, 1992 through January 27, 2001, and for which the United States has not previously received reimbursement and includes interest on all such costs which has accrued pursuant to 42 U.S.C. § 9607(a) through such date, provided, however, that "Past Response Costs" does not include those costs incurred by the United States to oversee response actions by Settling Defendants pursuant to either the previously executed Consent Decree (Civil Action No. 93-4675, entered December 1, 1993), or the Administrative Order on Consent (Index No. II-CERCLA-95-0105, effective October 18, 1995), which are covered by Bills for Collection identified by numbers 02200T084; 02298T085; and 022999T101 and currently are in dispute resolution proceedings pursuant to the referenced Consent Decree and Administrative Order on Consent.
"Performance Standards" shall mean the cleanup standards and other measures of achievement of the goals of the Remedial Action, set forth in the Remedial Action Objectives Section of the ROD and Section II of the SOW.
"Plaintiff" shall mean the United States.
"Project Coordinator" shall mean the principal coordinator retained by the Settling Defendants to supervise and direct the implementation of the Work under this Consent Decree.
"RCRA" shall mean the Solid Waste Disposal Act, as amended, 42 U.S.C. §§ 6901 et seq. (also known as the Resource Conservation and Recovery Act).
"Record of Decision" or "ROD" or "OU2 ROD" shall mean, unless the context clearly refers otherwise, the EPA Record of Decision relating to the Second Operable Unit at the Site signed on September 29, 2000, by the Regional Administrator, EPA Region II, or his/her delegate, and all attachments thereto. The ROD is attached as Appendix A.
"Remedial Action" shall mean those activities to be undertaken by the Settling Defendants to implement the ROD in accordance with the SOW and the final Remedial Design and Remedial Action Work Plans and other plans approved by EPA.
"Remedial Action Work Plan" shall mean the document developed pursuant to Paragraph 12 of this Consent Decree and approved by EPA, and any amendments thereto.
"Remedial Design" shall mean those activities to be undertaken by the Settling Defendants to develop the final plans and specifications for the Remedial Action pursuant to the Remedial Design Work Plan.
"Remedial Design Work Plan" shall mean the document developed pursuant to Paragraph 11 of this Consent Decree and approved by EPA, and any amendments thereto.
"Section" shall mean a portion of this Consent Decree identified by a roman numeral.
"Settling Defendants" shall mean the Ciba Specialty Chemicals Corporation and Novartis Corporation.
"Site" shall mean the Ciba-Geigy Superfund Site located in Toms River, Ocean County, New Jersey and depicted generally on the map attached as Appendix C. The Site includes the areal extent of contamination where hazardous substances have migrated or are migrating, and all suitable areas in very close proximity to the contamination necessary for implementation of the response action.
"State" shall mean the State of New Jersey.
"Statement of Work" or "SOW" shall mean the Statement of Work for implementation of the Remedial Design and Remedial Action, including long-term operation and monitoring and maintenance, at the Site, as set forth in Appendix B to this Consent Decree and any modifications made in accordance with this Consent Decree.
"United States" shall mean the United States of America.
"Waste Material" shall mean (1) any "hazardous substance" under Section 101(14) of CERCLA, 42 U.S.C. § 9601(14); (2) any pollutant or contaminant under Section 101(33) of CERCLA, 42 U.S.C. § 9601(33); (3) any "solid waste" under Section 1004(27) of RCRA, 42 U.S.C. § 6903(27); and (4) any "hazardous substances" as defined under the New Jersey Industrial Site Recovery Act, as amended by the Hazardous Discharge Remediation Act, P.L. 1993, c. 139, and the Brownfield and Contaminated Site Remediation Act, P.L. 1997, c. 278, as codified at N.J.S.A. 13:1K-6 et seq.
"Work" shall mean all activities Settling Defendants are required to perform under this Consent Decree, except those required by Section XXV (Retention of Records).
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