SDMS DocID 2074527

Pennsylvania Department of Environmental Protection

Office of Chief CounselP.O. Box 8464

400 Market Street, 9th FloorHarrisburg, Pennsylvania 17105-8464

February 29, 1996

(717) 787-8790(717) 787-8790 fax

Southcentral Regional Office

VIA U.S. EXPRESS MAIL

Arundhati Khanwalkar, Esq.Pennsylvania Power & Light CompanyTwo North Ninth StreetAllentown, Pennsylvania 18101

Re: UGI Columbia Gas Plant NPL Site

Dear Tinku:

Enclosed please find a final consent order and agreement forthe UGI Columbia Gas NPL site between the Department and PP&L.At your request, we have eliminated legal costs from the costsfor which PP&L is liable. Please attach the latest approvedExhibit 2 (Statement of Work) and Exhibit 3 (Supplemental WorkPlan), have the agreement signed by the appropriate PP&Lofficials, and return to me as soon as possible.

Sincerely,

Martin R. SiegelAssistant Counsel

Enclosure

cc: Tony Martinelli, DEP1

-o

An Equal Opportunity/Affirmative Action Employer http://www.dep.sUte.pa.us Printed on Recycled Paper

COMMONWEALTH OF PENNSYLVANIADEPARTMENT OP ENVIRONMENTAL PROTECTION

In the Matter of : Response Actions atHOI Columbia Gas Site : National PrioritiesLancaster County : List Site

CONSENT ORDER AND

This Consent Order and Agreement ("Agreement") is entered into this _ ,

day of _ , 1996 by and between the Commonwealth of Pennsylvania,

Department of Environmental Protection ("Department"), and Pennsylvania Power

and Light Company ("PPfcL") .

FINDINGS

The Department has made the following findings:

A. The Department is the agency with the duty and authority to

administer and enforce the Hazardous Sites Cleanup Act, Act of October 18,

1*88, P.L. 756, No. 108, 35 P.S. 56020.101 et sea. ("HSCA"); the Solid Waste

Management Act, Act of July 7, 1980, P.L. 380, SB amended. 35 P.S. §6018.101

efc sea. ("SWMA"); the Clean Streams Law, Act of June 22, 1937, P.L. 1987, as

MC"*̂ 35 P.S. §691.1 et sea. ("CSL"); Section 1917-A of the Administrative

Code of 1929, Act of April 9, 1929, P.L. 177, aj§ amended. 71 P.S. §510-17; and

the rules and regulations promulgated thereunder.

B. Pennsylvania Power & Light Company ("PP&L"), 2 North Ninth Street,

Allentown, Pennsylvania 18101-1179, is a "person" as defined in section 103 of

HSCA, 35 P.S. §6020.103.

C. The UGI Columbia Gas Plant site (the "Site") is a "site" as

defined in section 103 of HSCA, 35 P.S. §6020.103. The Site is located along

Front Street in the Borough of Columbia, Lancaster County, Pennsylvania. The

Site encompasses approximately 1.6 acres and can be located on the United

States Geological Survey Columbia East, Pennsylvania 7.5 minute series

quadrangle at 40 01' 37" north latitude and 76 30' 01" west longitude or 0.05

inch east and 4.9 inches north of the southwestern corner of the quadrangle.

As provided in the definition of "site" in section 103 of HSCA, 35 P.S.

§6020.103, the Site includes all areas where the hazardous substances or

contaminants resulting from the release have come to be located.

D. PP&L and UGI Utilities, Inc., in cooperation with the United

States Environmental Protection Agency ("EPA"), have conducted a number of

investigations to define the nature and extent of the release of hazardous

substances at the Site. Based upon these studies, the Department has

determined that the past and present conditions at the Site constitute a

•release" of "hazardous substances" and "contaminants," as those terms are

defined in section 103 of HSCA, 35 P.S. §6020.103.

E. The hazardous substances and contaminants found to have been

released at the Site include benzene, toluene, ethylbenzene, and naphthalene.

These and other hazardous substances released at the site include known or

suspected carcinogens.

F. EPA placed the Site on the National Priorities List ("NPL") in

June 1994, pursuant to the Comprehensive Environmental Response, Compensation,

and Liability Act ("CERCLA"), 42 U.S.C. §9601 g£ sea. EPA has authorized the

Department to act as the lead agency for the work required by this Consent*

Order and Agreement ("Agreement") at the Site.

6. PP&L currently owns the Site and has owned it since January 1994.

In addition, PP&L owned the site from 1935-1949.

H. Hazardous substances have been released at the Site during the

time period that PP&L owned the Site.

I. PP&L is a responsible person pursuant to section 701 of HSCA, 35

P.S. §6020.701, with respect to the release of hazardous substances and

contaminants at the Site.

J. By letter dated April 26, 1994, the Department notified PP&L,

pursuant to sections 501(a) and 501(e) of HSCA, 35 P.S. §§6020.501(a) and (e) ,

of the existence of a release or threat of release of hazardous substances at

fh* Site and of the Department's intention to further investigate and take

action at the Site.

K. Pursuant to sections 501(a) and 505(b) of HSCA. 35 P.8.

§16020.501(a) and 6020.505(b), the Department has investigated conditions at

the Site and has determined that interim actions were required to protect

public health and safety and the environment due to the release and threat of

release of hazardous substances and contaminants at the Site.

L. On July 17, 1995, the Department issued a Statement of Decision

(SOD) for interim actions to address the holder tanks on the Site (Exhibit 1).

The selected action for the relief holder is enhanced product recovery and for

the gas holder is pumping.

ORPKR

After a full and complete negotiation of all matters set forth in this

Agreement, the parties intending to be legally bound, it is hereby ORDERED, by

the Department and AGREED to by PP&L as follows:

1. This Agreement is an Order of the Department authorized and issued

pursuant to sections 505(c) and 1102 of HSCA, 35 P.S. S6020.505(c) and

6020.1102, and section 1917-A of the Administrative Code, 71 P.S. S510-17.

For the purposes of section 1301 of HSCA, 35 P.S. § 6020.1301, this Agreement

constitutes an administrative action against the Site's "owner" or "operator,"

as those terms are defined in 35 P.S. §6020.103, pursuant to the Solid Waste

Management Act, The Clean Streams Law, and section 1917-A of the

Administrative Code. The failure of PP&L to comply with any term or condition

of this Agreement shall subject PP&L to all penalties and remedies provided by

those statutes for failing to comply with an order of the Department.

SELECTION OF A SUPERVISING CONTRACTOR

2. PP&L has selected Clean Sites of 199 North Fairfax Street, Suite

400, Alexandria, Virginia 22314, as its supervising contractor for the work

required under this Agreement and asserts that Clean Sites is qualified and

capable of managing the work required. The Department has approved Clean

Sites as the supervising contractor of PP&L's obligations at the Site under

this Agreement.

3. If at any time after the effective date of this Agreement PP&L

proposes to change its supervising contractor, PP&L will give written notice

to the Department, and must obtain prior written approval of that proposed

supervising contractor from the Department, before the supervising contractor

performs any work under this Agreement. The Department may disapprove a

supervising contractor if such person has a conflict of interest created by

contractual obligations with the Commonwealth of Pennsylvania, or is otherwise

unqualified.

WORK TO BI PERFORMED

4. PP&L will implement interim actions selected in the Department's

SOD to address volatile organic compounds and polyaromatic hydrocarbons (PAH)

in water and sludge in the relief and gas holders onsite. This work will be

carried out pursuant to the schedule in the Statement of Work, submitted by

PP&L and approved by the Department, attached to and incorporated into this

Agreement as Exhibit 2.

5. PP&L will conduct a remedial investigation/feasibility study

(Rl/FS) for the Site. The RI/FS shall be prepared in accordance with the

approved "Supplemental Work Plan for Additional Site Characterization, Former

UQI Manufactured Gas Plant, Columbia, Pennsylvania," ("Supplemental Work

Plan"), dated June 9, 1994 and Addendum, dated September 1994, which were

submitted by PP&L, and which are attached to and incorporated into this

Agreement as Exhibit 3. The work conducted pursuant to the Supplemental Work

Plan will be conducted in accordance with EPA's "Guidance for Conducting

Remedial Investigations and Feasibility Studies Under CERCLA," Interim Final,

EBA/540/G-89/004, OSWER Directive 9355.3-01, October 1988. The RI/FS will

include data from previous investigations, completed on behalf of PP&L and

EPA, as described in section 2.5 of the Supplemental Work Plan. PP&L shall

submit the RI/FS to the Department for its review and approval by June 30,

1996. The Department and PP&L desire to streamline the feasibility process

using presumptive remedies approaches and principles established under EPA's

Superfund Accelerated Cleanup Model (SACM).

6. PP&L shall conduct an engineering evaluation/cost analysis (EE/CA)

with respect to the contaminated sediments in the Susquehanna River adjacent

to and immediately downstream from the Site. This work will be carried out

pursuant to the Statement of Work incorporated into this Agreement as Exhibit

2.

ADDITIONAL RESPONSE ACTIONS

7. in the event the Department or PP&L determines that additional

response actions are necessary to carry out the requirements of or to meet the

objectives of the SOD or other work required pursuant to this Agreement,

notification of such additional response actions shall be provided by the

Department to PP&L or by PP&L to the Department's Project Officer. If PP&L

objects to any modification determined by the Department to be necessary

pursuant to this paragraph, PP&L may seek dispute resolution pursuant to

paragraph 48. Nothing in this paragraph shall be construed to limit the

Department's authority to require performance of further response actions as

otherwise provided in this Agreement.

8. Unless otherwise agreed to by the Department, within 60 days of

receipt of the notice from the Department pursuant to paragraph 7 of this

Agreement that additional response actions are necessary, or, in the case of a

dispute, within 60 days following a final determination that PP&L is to take

additional response actions, PP&L shall submit to the Department a work plan

for the additional response actions. Upon approval of the plan by the

Department, PP&L shall implement the plan for additional response actions. In

carrying out any additional work, PP&L shall also comply with the terms of the

Statement of Work (Exhibit 2) , except as inconsistent with the approved plan

for the additional response action.

9. Any additional response actions that PP&L determines are necessary

to carry out the requirements of or to meet the objectives of the SOD or this

Agreement shall be subject to approval by the Department, and if authorized by

the Department, shall be completed by PP&L in accordance with plans,

specifications, and schedules established by the Department.

SDBMITTAL REVIEW

10. After review of any submittal that is required to be approved by

the Department pursuant to this Agreement, the Department shall, after an

opportunity for review and comment by EPA, in writing: a) approve the

submittal in whole or in part; b) approve the submittal upon specified

conditions; c) disapprove the submittal in whole or in part, and modify the

submittal to correct deficiencies; d) disapprove the submittal in whole or in

part, and direct PP&L to modify the submittal; or e) any combination of the

above. The Department shall endeavor to provide conditional approvals rather

than disapprovals.

11. If, after an opportunity for review and comment by EPA, the

Department conditionally approves or modifies the submittal, PP&L shall

undertake the action as conditioned or modified by the Department. If the

Department, after an opportunity for review and comment by EPA, disapproves a

submittal and requires resubmission, PP&L shall within 20 days correct the

deficiencies and resubmit the submittal, unless the Department agrees to a

longer period of time. PP&L shall proceed, at the direction of the

Department, to undertake any activity required by any approved portion of a

submittal. If PP&L objects to any conditions or disapprovals, PP&L may seek

dispute resolution pursuant to paragraph 48 of this Agreement.

12. All submittals or portions thereof to the Department under this

Agreement shall, upon approval or modification by the Department, and after an

opportunity for review and comment by EPA, be incorporated into and

enforceable under this Agreement.

ACCESS

13. PP&L shall allow or arrange for the Department and its

representatives, including contractors, as well as EPA and its

representatives, including contractors, access at all times to the Site or

where activities are being performed pursuant to this Agreement, for any of

the following purposes, or for other purposes set forth under HSCA:

a. Monitoring the progress of activities takingplace;

b. Verifying any data or information submitted to theDepartment;

c. Conducting investigations relating to contamination at ornear the Site;

d. Obtaining samples at the Site;

e. Inspecting and copying records, operating logs, contracts,or other documents required to assess PP&L'a compliance withthis Agreement;

f. Performing response work as required under this Agreement;

g. Performing any interim or emergency response as determinedto be necessary by the Department.

14. Nothing in the preceding paragraph is intended to limit in any way

the right of entry or inspection that the Commonwealth of Pennsylvania, its

agencies, or departments may otherwise have by operation of law.

MODIFICATION OF WORK PLAN

15. Within 30 days of receipt of the Department's request for

modification of any previously approved statement of work, work plan or

supplemental work plan, PP&L shall make such modification and resubmit the

document to the Department for its approval, unless otherwise agreed to by the

Department. Within 10 days of receipt of the Department's approval of the

revised document, PP&L shall implement the revised document in accordance with

the approved schedule of implementation. The revised document shall be

incorporated herein as an enforceable provision of this Agreement. If PP&L

objects to any modification of any statement of work, work plan, or

supplemental work plan, PP&L may seek dispute resolution pursuant to paragraph

48 of this Agreement.

REPORTING RBQUIRKMXNTS

16. PP&L shall submit to the Department four copies and to EPA two

copies of written monthly progress reports that: a) describe the actions which

have been undertaken toward achieving compliance with the Agreement during the

previous month; b) include a summary of all results of sampling and tests and

all other data received or generated by PP&L or its contractors or agents in

the previous month; c) identify all submittals required by this Agreement that

were completed during the previous month; d) describe all actions, including,

but not limited to, data collection and implementation of work plans, that are

scheduled for the next six weeks; e) include information regarding percentage

of completion, unresolved delays encountered or anticipated that may affect

the future schedule for implementation of the work required under this

Agreement, and a description of efforts made to mitigate those delays or

anticipated delays; and f) include any modifications of work plans or

schedules that PP&L proposes to the Department. PP&L shall submit the

progress reports to the Department by the tenth day of every month following

the date of this Agreement, until the Department has determined that the work

required by the Agreement has been completed.

EMERGENCY CONDITIONS

17. PP&L shall verbally notify the Department within 24 hours of any

n«wly discovered conditions at the Site that pose an immediate and substantial

risk to the public health, safety and welfare, or the environment.

CERTIFICATION OF COMPLETION

18. Upon completion of the activities required pursuant to this

Agreement, PP&L shall notify the Department that such activities have been•

completed. Thereafter, the Department shall review PP&L's performance of the

activities required pursuant to this Agreement for the purpose of confirming

that the activities have been completed and that the objectives and ARARs for

the response actions selected in the SOD have been met, or waive the ARARs if

the Department, in its sole discretion, determines that such a waiver is

appropriate. The Department will provide PP&L with a certification of

completion of work when it has determined that the activities required

pursuant to this Agreement have been completed and the requirements and

objectives set forth in the SOD have been met. In any event, the activities

required pursuant to this Agreement shall not be considered completed until

the Department has provided PP&L with written certification to that effect.

19. In the event the Department determines that PP&L must take

additional actions to meet the requirements of the SOD, including work not

specifically described in this Agreement, the Department shall, pursuant to

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paragraph 7 of this Agreement, provide written notification to PP&L that

additional actions are necessary. PP&L shall comply with the requirements of

paragraph 7 of this Agreement to submit a required work plan and implement the

necessary actions to address the Department's notice. If PP&L objects to any

additional work required pursuant to this paragraph, PP&L may seek dispute

resolution pursuant to paragraph 48 of this Agreement. Nothing in this

paragraph shall be construed to limit the Department's authority to require

performance of further response actions as otherwise provided in this

Agreement.

RBCOVKRY OF RKSPOHSB COSTS

20. Within 30 days of the effective date of this Agreement, PP&L shall

submit a check payable to the "Commonwealth of Pennsylvania, Hazardous Sites

Cleanup Fund" in the amount of $22,989.80 in reimbursement of the Department's

response costs as of December 12, 1995. The check shall be mailed to:

Manager, Hazardous Sites Cleanup ProgramPa. Department of Environmental ProtectionSouthcentral Regional Office1 Ararat BoulevardHarrisburg, Pennsylvania 17110

21. PP&L shall reimburse the Department for response costs incurred

after December 12, 1995, incurred in connection with the response actions

undertaken by PP&L under this Agreement. As the Department processes its

costs, it will offer notifications, constituting demands for payment, for its

oversight costs, accompanied by the Department's standard documentation of

such costs. PP&L shall submit payment of the amount specified within 30 days

of the date of notification according to the requirements of paragraph 20.

22. The Department's response costs shall include: a) those response

costs, including administrative costs, expended by the Department prior to the

execution of and through the fulfillment of the Agreement; b) those costs

associated with the Department's oversight of the implementation of the

approved work plan and all other work required under this Agreement; and c)

those costs incurred by the Department in the event it takes over and performs

th* work required under this Agreement (collectively, "Department's Response

Co«ts").

23. As referenced in paragraph 22(b), the Department's oversight costs

include, but are not limited to: a) the costs for analyses of samples the

Department may take to monitor the performance and determine the compliance of

response actions implemented by PP&L under this Agreement, either by the

Department's own laboratory or by a contract laboratory; b) the costs for a

contractor or consultant that may be hired by the Department to provide

technical oversight related to the implementation of PP&L's required

activities under this Agreement; c) the costs for the Department's personnel

to oversee PP&L's implementation of the terms of this Agreement, including

those costs going to base salaries and fringe benefits for personnel as

calculated by the Commonwealth of Pennsylvania's cost accounting system; d)

the Department's travel costs to oversee PP&L's performance of activities

under this Agreement; e) the Department's overhead costs, including supplies,

contractual services and operational expenses charged for the Site according

to the Commonwealth's cost accounting system; and f) the costs of fixed assets

specifically purchased and used solely in connection with the Department's

oversight of PP&L's implementation of this Agreement.

24. PP&L may contest payment of any response costs incurred after

August 23, 1995 if it determines that the Department has made an accounting

error or if it alleges that a cost item that is included represents costs that

axe not reasonable and necessary or appropriate. Such objection shall be made

pursuant to the dispute resolution process set forth in paragraph 48 of this

Agreement. Within five days of the resolution of the dispute, PP&L shall pay

any sums determined to be due, with accrued interest of 6% annually calculated

from the original date payment was due.

STIPULATED PENALTIES

25. (a) In the event PP&L fails to comply in a timely manner with the

terms or conditions identified in paragraph 25(b), PP&L shall be in violation

of this Agreement and, in addition to other applicable remedies, shall pay a

10

stipulated penalty in the following amounts: for the first 10 days of

violation, $100 per day per violation; for the eleventh day of violation and

thereafter, $300 per day per violation. The penalty shall be due upon notice

from the Department to PP&L. Such penalty payments shall be payable monthly

on or before the fifteenth of each month. Such payments shall be made in

accordance with the provisions of paragraph 20. It is understood by the

Department and PP&L that payment of any stipulated penalty shall neither

constitute a waiver of PP&L's duty to meet its obligations under this

Agreement nor preclude the Department from commencing an action to compel

PP&L's compliance with this Agreement, or any applicable statute, rule,

regulation, permit, or order of the Department.

(b) The following shall be deadlines subject to the stipulated penalties

stated above: (i) compliance with the terms and schedule in the attached

Statement of Work incorporated into this agreement as Exhibit 2; (ii)

compliance with the terms and schedule for the RI/FS pursuant to paragraph 5

of this Agreement and the Supplemental Work Plan attached to and incorporated

into this order as Exhibit 3; (iii) compliance with the terms and schedules of

any modified Statement of Work prepared pursuant to paragraphs 7, 8, 15, or

19; and (iv) failure to make payments as required by paragraphs 20 and 21.

26. PP&L agrees not to challenge the Department's right to bring an

action directly in Commonwealth Court to compel payment of stipulated

penalties assessed pursuant to paragraph 25. In any such action by the

Department, the sole issue shall be whether PP&L's acts or omissions gave rise

to a penalty under paragraph 25.

FORCE MAJBURX

27. In the event that PP&L is prevented from complying in a timely

manner with any time limit imposed under this Agreement solely because of a

strike, fire, flood, act of God, or other circumstances entirely beyond PP&L's

control and which PP&L, by the exercise of reasonable diligence, is unable to

prevent, then PP&L may petition the Department for an extension of time. An

increase in the cost of performing the obligations set forth in this Agreement

11

shall not constitute circumstances beyond the control of PP&L. PP&L expressly

agrees that its economic inability to comply with any of its obligations under

this Agreement shall not be grounds for any extension of time otherwise

available under this paragraph. In addition, the failure of the Department to

grant an extension of a previous milestone or schedule shall not be grounds

for any extension of time under this paragraph for a subsequent requirement.

28. PP&L shall only be entitled to the benefits of the preceding

paragraph if it notifies the Department's Project Coordinator, or in his

absence, the Department's Alternate Project Coordinator, within 5 working days

by telephone and within 10 working days in writing of the date PP&L became

aware or reasonably should have become aware of the event impeding

performance. The written submission shall include all related documentation,

as well as a notarized affidavit from PP&L's Project Coordinator specifying

the reasons for the delay, the expected duration of the delay, and the efforts

which have been made or are being made by PP&L to minimize the length of the

delay. PP&L's failure to comply with the requirements of this paragraph

specifically and in a timely fashion shall render this paragraph null and of

no effect as to the particular incident involved.

29. The Department will decide whether to grant all or part of the

extension requested on the basis of all documentation submitted by PP&L and

other information available to the Department. Only a letter that has been

signed by the Department's Project Coordinator and counsel will constitute an

extension under this paragraph. The extension of the time for performance of

the obligation(s) affected by the force majeure event shall not, by itself,

extend the time for performance of any other obligation unless specifically

stated in writing by the Department.

30. PP&L shall have the burden of proof as to the justification for an

extension and the length of such an extension pursuant to the preceding

paragraphs, both to the Department and in the event that compliance with the

terms and conditions of this Agreement becomes an issue in any subsequent

litigation. Such burden of proof shall be by clear and convincing evidence.

12

LIABILITY

31. PP&L shall inform all persons necessary for the implementation of

this Agreement. PP&L shall be liable for any violation of this Agreement,

including violations caused by, contributed to, or allowed by PP&L's

directors, officers, agents, managers, servants, and privies and any persons,

contractors, and consultants acting under or for PP&L. PP&L shall remain

liable for any violation of this Agreement caused by, contributed to, or

allowed by PP&L's successors and assigns, unless PP&L's obligations are

terminated under paragraph 33.

TRANSFER OF SITE

32. The duties and obligations under this Agreement shall not be

modified, diminished, terminated, or otherwise altered by the transfer of any

legal or equitable interest in the Site, or any part thereof. Should PP&L

intend to transfer any legal or equitable interest in the Site, or any part

thereof, PP&L shall serve a copy of this Agreement upon the prospective

transferee of the legal and equitable interest at least thirty (30) days prior

to the contemplated transfer and shall simultaneously inform the Department of

such intent.

33. Even if the Department has signed a Consent Order and Agreement, a

Consent Decree, or a Consent Adjudication, in which the transferee of an

interest in the Site agrees to comply with the terms and conditions of this

Agreement, PP&L's duties and obligations under this Agreement are not

modified, diminished, terminated or otherwise altered. Where the Department

has signed a Consent Order and Agreement, a Consent Decree, or a Consent

Adjudication in which a transferee of an interest in the Site agrees to comply

with the terms and conditions of this Agreement, PP&L may request, in writing,

the Department to modify or terminate PP&L's duties and obligations under this

Agreement. If the Department refuses to do so, PP&L may invoke dispute

resolution pursuant to paragraph 48 of this Agreement.

EXISTING OBLIGATIONS UNAFFECTED

13

34. Nothing set forth in this Agreement is intended, nor shall be

construed, to relieve or limit PP&L's obligation to comply with any existing

or subsequent statute, regulation, permit, or order. In addition, nothing set

forth in this Agreement is intended, nor shall be construed, to authorize any

violation of any statute, regulation, order, or permit issued or administered

by the Department.

35. PP&L shall obtain all necessary permits, or obtain written

approvals from the Department in lieu of permits, pursuant to section 504(g)

of HSCA, 35 P.S. §6020,504(g), to carry out obligations under this Agreement.

This Agreement is not a permit and shall not be construed to stand in lieu of

a permit.

COVBKAMT MOT TO SDK

36. Subject to the reservation of rights provided in paragraphs 37-39:

a. the Department covenants not to sue or to take

administrative action against PP&L pursuant to sections 507, 701, 702, 1101,

and 1102 Of HSCA, 35 P.S. §5 6020.507, 6020.701, 6020.702, 6020.1101, and

6020.1102 and sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and

9607(a), or any other state or federal statutory or common law, for the

Department's response costs as of December 12, 1995 that arise from the

release and threatened release of hazardous substances and/or contaminants,

identified and addressed in the SOD, at the Site; and

b. as long as PP&L complies in full with this Agreement, the

Department covenants not to sue or to take administrative action against PP&L

pursuant to sections 507, 701, 702, 1101, and 1102 of HSCA, 35 P.S. §§

6020.507, 6020.701, 6020.702, 6020.1101, and 6020.1102, and sections 106 and

107(a) of CERCLA, 42 U.S.C. S§ 9606 and 9607(a), or any other state or federal

statutory or common law, for the Department's response costs incurred after

December 12, 1995 that arise from the release and threatened release of

hazardous substances and/or contaminants, identified and addressed in the SOD,

at the Site. These covenants not to sue shall become permanent upon the

Department's certification of completion on the work required under this

14

Agreement. These covenants not to sue extend only to PP&L and do not extend

to any other person.

RESERVATION OF RIGHTS

37. Notwithstanding any other provision of this Agreement, the

covenants not to sue will become null and void and the Department reserves the

right to institute proceedings in this action, or in a new action, or to issue

an administrative order requiring PP&L to perform additional response actions

relating to the Site and/or to reimburse the Department for additional

re»ponse costs if:

(a) fraud was committed by PP&L in the submission of any

information to the Department;

(b) the response actions implemented by PP&L fail to meet the

objectives and ARARs identified for the response actions in

the SOD;

(c) conditions at the Site, including newly identified hazardous

substances, previously unknown to the Department are

discovered; or

(d) information is received concerning conditions at the Site,

previously unknown to the Department in whole or in part,

including new toxicological information on hazardous

substances; and

the Department determines that these previously unknown conditions or

information, together with any other relevant information indicates that the

response actions at the Site are not protective of human health or the

environment.

Conditions at the Site and information known to the Department shall

include only those conditions and that information set forth in the

Administrative Record for the Site as of the date of the Department's issuance

of a Statement of Decision attached as Exhibit 1.

15

38. The covenants not to sue by the Department set forth in paragraph

36 of this Agreement shall not apply to the following claims the Department

may have against PP&L:

a. failure to meet the requirements of this Agreement;

b. past, present, or future disposal of hazardous substances

outside the boundaries of the Site;

c~ past, present, or future violations of federal or state

criminal law;

d. natural resource damages.

39. With regards to matters not addressed by the Agreement, the

Department specifically reserves all rights to institute equitable,

administrative, civil and criminal actions, for any past, present, or future

violation of any statute, regulation, permit, or order; or for any pollution

or potential pollution to the air, land, or waters of the Commonwealth.

•mCT OF SETTLEMENT* CONTRIBUTION PROTECTION

40. Nothing in this Agreement shall be construed to create any right

in, or grant any cause of action to, any person not a party to this Agreement.

The preceding sentence shall not be construed to waive or nullify any rights

that any person not a signatory to this decree may have under applicable law.

The Department and PP&L expressly reserve any and all rights (including, but

not limited to, any right to contribution), defenses, claims, demands, and

causes of action which each party may have with respect to any matter,

transaction, or occurrence relating in any way to the Site against any person

not a party hereto.

41. The Department and PP&L agree that by entering this Agreement,

PFfcL is a person that has resolved its liability to the Department relating to

the Site and is entitled to such protection from contribution actions or

claims for matters addressed in this Agreement as is provided by CERCLA

Section 113(f)(2), 42 U.S.C. §9613(f)(2), and HSCA section 705(c)(2), 35 P.S.

§«020.705(c)(2).

PROHIBITION ON CLAIMS

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42. PP&L hereby waives any claims or defenses it may have regarding

the application of sections 708, 709, and 1301 of HSCA, 35 P.S. §§6020.708,

6020.709, and 6020.1301, for matters arising from the release and threatened

release of hazardous substances and/or contaminants at the Site, arising out

of the response action at the Site, or arising out of this Agreement.

43. PP&L hereby agrees not to assert any claims of any kind, including

claims for reimbursement, contribution, and/or indemnity under any state or

federal statute or common law from the Commonwealth of Pennsylvania, the

Department, or the Hazardous Sites Cleanup Fund for matters arising from the

release and threatened release of hazardous substances and contaminants at the

Site, arising out of response actions at the Site, or arising out of this

Agreement.

44. PP&L explicitly waives any right to challenge the Department's

authority to enter into this Agreement or to allege that the subject matter of

this Agreement is outside the scope of HSCA or other statutes.

45. PP&L hereby indemnifies the Department and holds the Department

harmless for any claims arising from any injuries or damages to persons or

property resulting from any acts or omissions of PP&L's officers, employees,

agents, receivers, trustees, successors, assigns, contractors, subcontractors,

or any person acting on its behalf in carrying out any activities pursuant to

the terms of this Agreement.

RKKKDIBS FOR BRBACR

46. PP&L's failure to comply with any provision of this Agreement

shall be deemed a material breach, and in the event of any such breach, the

Department may, in addition to any remedies prescribed herein, institute any

equitable, administrative, civil or criminal action, including an action to

enforce this Agreement and an action to obtain civil penalties. These

remedies are cumulative and the exercise of one does not preclude the exercise

of any other. The failure of the Department to pursue any remedy shall not be

deemed to be a waiver of that remedy.

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47. Nothing in this Agreement shall prevent the Department from

performing such response actions as the Department deems necessary. If the

Department performs any response actions because of PP&L's failure to comply

with this Agreement, PP&L shall reimburse the Department for the costs of

performing such response action pursuant to paragraphs 20-24. The Department

reserves the right to seek additional payments pursuant to section 507(c) of

HSCA, 35 P.S. S6020.507(c).

DECISIONS OF TEE DEPARTMENT AND DISPUTE RESOLUTION

48. In the event of any dispute arising under this Agreement, PP&L and

the Department agree to attempt to resolve the dispute as follows:

a. PP&L may formally invoke the dispute resolution process by sending

written notice to the other party.

b. For a period of 30 days after the receipt of the written notice

provided under subparagraph a above, PP&L's Remediation Program Manager and

tile Department's Southcentral Regional Environmental Cleanup Program Manager

shall confer in an attempt to resolve the dispute informally.

c. In the event that the parties are unable to resolve the dispute

within the 30 day period, a PP&L representative senior to the Remediation

Program Manager and a Department representative senior to the Southcentral

Regional Environmental Cleanup Program Manager shall confer for a period of up

to 15 days in an attempt to resolve the dispute.

d. The parties may, by mutual agreement, extend any deadlines

specified in this section.

e. The parties may, by mutual agreement, arrange for the

participation of a neutral mediator in any attempt to resolve a dispute under

the provisions of this section.

f. If the parties are unable to reach an agreement following

utilization of the procedure set forth above, or upon mutual agreement that

the use of the procedure is waived, the Department may bring an action to

enforce this Agreement, and the Department's decisions made pursuant to this

Agreement, in the Commonwealth Court of Pennsylvania. The Department also

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reserves the right to issue separate orders to PP&L to carry out work at the

Site or to take over the response actions and seek costs and punitive damages.

49. This dispute resolution section applies to the Department's

decisions made to implement this Agreement specified as follows:

a. The determination of the need for additional response

actions pursuant to paragraph 7.

b. The decision on the work plan for additional response

actions, made pursuant to paragraph 8.

c. The decision on modification of submittals, made pursuant to

paragraph 10.

d. The decision on the modification of approved work plans or

schedules, made pursuant to paragraph 15.

e. The decisions related to certification of completion, made

pursuant to paragraphs 18-19.

f. The decision on the Department's response costs, made

pursuant to paragraph 21.

g. The decision to modify or terminate PP&L's duties and

obligations, made pursuant to paragraph 33.

50. Except as provided in paragraph 51, during the pendency of any

dispute pursuant to paragraph 48, PP&L shall not be obligated to perform any

of the actions in dispute or actions reasonably related thereto, and PP&L

shall be entitled to relief from any stipulated penalty applicable to the

actions that are the subject of the dispute. Following resolution of any such

dispute by the Department, the stipulated penalty provision of paragraph 25

•hall apply if PP&L fails to implement the activity under dispute (as

resolved) within the time frame specified in this Agreement for the required

action.

51. In the event that PP&L is judicially determined to have invoked

the dispute resolution process under this section frivolously or solely for

the purpose of delay, PP&L shall not be entitled to relief from stipulated

penalties from the time it was originally required to comply.

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PROJECT COORDINATORS

52. The Department's designated Project Coordinator and Alternate

Project Coordinator are:

Project Coordinator:

Tony Martinelli

Alternate Project Coordinator:

Art Dalla PiazzaHazardous Sites Cleanup programPa. Department of Environmental ProtectionOne Ararat BoulevardHarrieburg, Pennsylvania 17110

PP&L's designated Project Coordinator is:

Bradley A. WisePP&L2 North 9th StreetAllentown, Pennsylvania 18101

PPfcL shall notify the Department of any change in its Project or Alternate

Project Coordinators.

EFFECTIVE DATE AND OPPORTUNITY TOR PUBLIC COMMENT

53. This Agreement shall be subject to a public comment period of no

lass than sixty days in accordance with section 1113 of HSCA, 35 P.S.

§6020.1113. The Department reserves its right to withdraw or withhold its

consent if the comments regarding the Agreement disclose facts or

considerations that indicate that the Agreement ia inappropriate, improper,

inadequate, or otherwise not in the public interest. If the Department

withdraws its consent, then the Agreement will be null and void and will have

no force or effect.

54. unless the Department otherwise withdraws its consent, this

Agreement shall become effective on the date that the Department issues its

response to significant written comments received during the public comment

period.

ENTIRE

55. This Agreement shall constitute the entire integrated agreement of

the parties. No prior or contemporaneous communications or prior drafts shall

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be relevant or admissible for purposes of determining the meaning or extent of

any provision herein in any litigation or any other proceeding.

MODIFICATION OF CONSENT ORDER AND AGREEMENT

56. No changes, additions, or amendments of this Agreement shall be

effective unless they are set out in writing and signed by the parties hereto.

TITLES

57. A title used at the beginning of any paragraph of this Agreement

i> provided solely for the purpose of identification and shall not be used to

interpret that paragraph.

SEVERABILITY

58. The paragraphs of this Agreement shall be severable and should any

part of this Agreement be declared invalid or unenforceable, the remainder

shall continue in full force and effect between the parties.

IN WITNESS WHEREOF, the Parties hereto have caused this Consent Order

and Agreement to be executed by the duly authorized representatives. The

undersigned representatives of PP&L certify under penalty of law, as provided

by 18 Pa.C.S. §4904, that they are authorized to execute this Consent Order

and Agreement on behalf of PP&L; that PP&L consents to the entry of this

Consent Order and Agreement as an ORDER of the Department; and that PP&L

hereby knowingly waives its right to appeal this Consent Order and Agreement

and the actions required under this Consent Order and Agreement, which rights

may be available under Section 4 of the Environmental Hearing Board Act, the

Act of July 13, 1988, P.L. 530, No. 1988-94, 35 P.S. 57514; the Administrative

Agency Law, 2 Pa. C.S. §103(a) and Chapters 5A and 7A; sections 508 and 1102

of HSCA, 35 P.S. SS6020.508 and 6020.1102, and any other provision of law.

FOR THE COMMONWEALTH OF PENNSYLVANIADEPARTMENT OF ENVIRONMENTAL PROTECTION

Kenneth OkornSouthcentral Regional EnvironmentalCleanup Program Manager

DATE:

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DATE:Martin R. SiegelAssistant Counsel

FOR PENNSYLVANIA POWER & LIGHT COMPANY

DATE:

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