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STATE OF NEW JERSEYDEPARTMENT OF E N V I R O N M E N T A L PROTECTION

ROBERT E. HfCHEY, COMMISSIONERCK«03

TRENTON. NJ. OS62S

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IN THE MATTER OFDIAKOKD SHAK3CCK CHEMICALS COMPANYAND KARISOL, IKC.

ADMINISTRATIVECONSENT ORDER

The following FINDINGS are made and ORDER is issuedpursuant to the authority vested in the Commissioner of theNew Jersey Department of Environmental Protection(hereinafter "the Department") by Executive Order No. 40(1983) signed by Governor Thogsis H. Kean on June 2, 1983,N.J.S.A. App. A:9-45, N.J.S.A. 13:1D-1 et seq.. the SolidWaste Management Act, N.J.S.A. 13:1E-1 et seq.. the WaterPollution Control Act, N.J.S.A. 58:10A-1 et seq., and theSpill Compensation and Control Act, N.J.S.A. 58:10-23.11 etseq.

FINDIKgS

The Department hereby finds that:

1. Diamond Shamrock Chemicals Company (hereinafter "theCompany*}, formerly known as the Diasoad ShamrockCorporation, operated a chemical manufacturing facilityat 80 Lister Avenue (Block 2438, Lots 53 and 59) inNewark, New Jersey (hereinafter "Newark facility* or••the site") from Harch 1951 to August 1969 under thename Diamond Alkali Company. Among other chemicals, theCompany - manufactured 2,4-D, 2,4,5-T - and 2,4,5Trichlorophenol at the Newark facility.

2. The Company ceased production activities at the site inAugust 1969 and sold the property in March 1971 toChemicaland Corporation, which may have conductedcertain chemical manufacturing activities during theseveral years it owned and occupied the site.

3. Walter Ray Holding Cospany purchased the property at atax sale in 1980 and held the premises until 1981. Itis not known whether any chemical nanufacturingactivities occurred at the site during this time.

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Walter Ray Holding Compar.y sold the property in June1551 to Marisoi, Inc., the current owner of the site,vhich undertook certain waste consolidation acr ivitiesprior to rentinc certain portions (to wits onewarehouse) thereof to SCA Chemical Services Conpany.Additionally, Karisol, Inc. used one building on thesite as a general business office.

In June 1983, the NJDEP determined that the soil at theNewark facility contained 2, 3, 7, 8 - TCDD (hereinafter"dioxin11). The Conpany, pursuant to Executive Order No.40 (1983) and the Department's Administrative Order No.EO 40-6, thereupon undertook certain interia sitestabilization measures including the placement of asuitable ground cover at the Newark facility. Placementof the tarp-like cover was intended to be an interimmeasure to minimize the spread of wind blown dust fromthe facility, while an acceptable final remedial actioncould be designed and implemented.

, V ORDER

NOW, THEREFORE, IT IS HEREBY ORDERED AND AGREED THAT:

Marisoi, Inc. and the Company shall ma-tTvt-a-i'n theexisting fences along the property boundaries torestrict unauthorized access to the site.The Company shall maintain the existing ground cover, orif necessary, install and maintain a replacement deemedsuitable by the Department, at the Newark facility untilthe final remedial action plan is implemented.

Marisoi, 'Inc. shall allow the Company to conduct anevaluation of the site and to implement a final remedialprogram for the site.(a) The Company shall undertake, entirely at its own. expense, a comprehensive evaluation of the site as

set forth in Exhibit A, which is attached heretoand made a part hereof, to determine the levels ofdioxin and other chemicals at the site. For thepurposes of this Order, "other chemicals" shall bedefined as the United States EnvironmentalProtection Agency's (USEPA) 129 priority pollutants"plus 40" (See Part 1 of Appendix A). The Companyshall also conduct, entirely at its own expense, afeasibility study of remedial action alternativesfor the site as set forth in Part 4 of Exhibit A.As part of this study, the Company shall also

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address the alternatives for removal orccr.~£ r_-.ent, at the Co-par.y's expense, of all drumsar.ci riterial stored s.t the site pursuant to theDepE-r—ent's Administrative Order No. EO 40-18.

(b) withir forty-five (45) days after the effectivedate cf this Order, the Company shall subrit to theDepartneivt, for its review and approval, acomprehensive and detailed site evaluation planwhich includes each of the itens set forth in Parts2 and 3 of Exhibit A. within fifteen (15) days ofreceipt of the Department's comments on the siteevaluation plan, the Company shall modify the planas necessary to conform with said comments andsubmit the modified site evaluation plan to theDepartment. Within one hundred twenty (120) daysafter receiving the Department's final approval ofthe plan, the Company shall conduct and completethe site evaluation and submit a report detailingthe results to the Department for its review andapproval. Within fifteen (15) days of receipt: ofthe Department's comments on the report, the

; dcmpary shall modify the report as necessary to•• conform vith said comments and submit the modifiedreport to the Department. Any significant

• modification of the site evaluation plan or reportrequired by the Department may be grounds to extendthe 15 day or 120 day time period.

(c) Within sixty (60) days after receiving theDepartment's final approval of the site evaluationreport, the Company shall conduct and submit thefeasibility study to the Department for publichearing and approval. The feasibility study shallidentify and evaluate all potentially viableremedial action alternatives for the site. Thefeasibility study shall include a comparison of allsuch, alternatives as to environmental and publichealth impacts, degree of confidence-in success,time required for implementation "" and cost;including operation .and maintenance costs. Thefeasibility study shall recommend the remedialaction alternative deemed best suited to remove thedioxin and other chemicals from the site such thatthe levels of dioxin or other chemicals remainingon the site following the removal do not constitutea significant risk to public health or theenvironment. The determination as- to what levelsof dioxin or other chemicals constitute asignificant risk to public health or theen>rircament shall be made solely by the Department.If t:.ws feasibility study concludes, and the

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13. Within five (5) days after the effective date of thisOrder, the Germany shall appoint a Facility Coordinatorvho shall be responsible for overseeing theimplementation of this Order and the activities requiredherein.

14. Karisol shall allow the Department access to the site atall times for the purpose of monitoring compliance with•the terms of this Order.

15. (a) The Company shall make its best efforts to secureand maintain in force comprehensive generalliability insurance coverage as broad as -thestandard coverage fora currently in use in theState of New Jersey which shall not becircumscribed by the endorsements limiting thebreadth of coverage. The policy shall include an

• endorsement (broad form)-for contractual liability,•. an endorsement for completed operations liability,

an endorsement of Broad Form Property Damage• Coverage and an endorsement for independentcontractors coverage. The Company shall gqke itsbest efforts to have its underwriter(s) add andmaintain the State of New Jersey as an additional

• insured through completion of the remedial actionplan implemented pursuant to paragraph 10 of thisOrder, except that such coverage as an additionalinsured shall not apply to any negligence of theState of New Jersey. The policy shall *bespecifically endorsed to eliminate any exclusionsfor explosion, collapse and underground hazards (x,c, u). Limits of liability shall not be less than

--- six (6) million dollars per occurrence and annualaggregate for bodily injury and for property damagecombined.

(b) Within thirty (30) days or as soon as coverage canbe effected after the effective date of this Order,the Company shall provide the Department with acurrent certificate of insurance certifyingcoverage. The certificate shall contain aprovision that the insurance shall not be cancelledfor any reason except after thirty (30) dayswritten notice to the Departsent.

(c) To the extent that the Company is unable to secureor maintain the above coverage or to have the State

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of New Jersey added as an additional insured, theCoirpar.y shall inceriT.ify the State to the sameextent that said coverage vould have provided theState as an additional insured.

16. (£) Within thirty (30) days after the effective date ofthis Order, the Company shall obtain and provide tothe Department an irrevocable letter of credit inthe anouat of $12 million to secure performance ofall obligations tinder this Order. Said letter ofcredit shall be issued pursuant: to the provisionsof N.J.S.A. 17:9A-25(3) and shall not beautomatically renewable but shall be renewable uponreapplication and review only. The Company shallmaintain said letter of credit continually.

Within thirty (30) days after approval of aremedial action alternative by the Departmentpursuant to paragraph 10 of this Order, the Companyshall amend the letter of credit to an amount equalto the estimated cost of fully implementing theapproved alternative, including any operation and

_' maintenance costs, if applicable.

(b) 1. The Company shall establish a standby trustfund within thirty (30) days of the effectivedate of this Order.

- 2. This standby trust fund shall be thedepository for all funds drawn by draft underthe Irrevocable letter of credit required bysubparagraph 16 (a), which funds shall bedeposited into such trust fund promptly and.directly by the issuing institution.

"3. In the event that the Department determines-' - that the Company has failed to perform any of

'Its obligations under this -Order, theDepartment may draw on the letter of credit;provided, .however, that before any draw can benade, the Department shall notify the CompanyIn writing of the obligation(s) with which Itis not complying, and the Company shall have areasonable time, not to exceed thirty (30)days, to perform such obligation(s). Shouldthe Department determine that the Company hasnot corrected its non-performance, theDepartment shall give the Company fifteen (15)days advance notice in writing of its Intentto draw on the letter of credit and of the

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amount, it intends to draw and have depositedin t^e stsztccv tirvist.

(c) At ar.y tine, the Company cay apply to theDepartment for approval to reduce the amount of theletter of credit, or to substitute other financialassurances in a form and manner acceptable to theDepartment.

17. If any event occurs which purportedly causes or maycause delays in the achievement of any deadlinecontained in this Administrative Consent Order, theCompany shall notify the Department in writing withinten- (10) days of the delay or anticipated delay, asappropriate, describing the anticipated length, precisecause or causes, measures taken or to be taken and the•time required to minimize the delay. The Company shalladopt all necessary measures to prevent or minimizedelay.

18. If any delay or anticipated delay has been or will be'caused by fire, flood, riot, strike or othercircumstances alleged, to be beyond the control of theCompany, then the time for performance hereunder nay beextended by the Department for a period no longer *franthe delay resulting from such circumstances, or 15 dayswhichever is shorter, provided that the Department; maygrant additional extensions for good cause. If theevents causing such delay are not found to be beyond thecontrol of the Company, failure to comply with theprovisions of this Administrative Consent Order shallconstitute a breach of the Order's requirements. Theburden of proving that any delay is caused bycircumstances beyond the Company's control and thelength of, such delay attributable to those circumstancesshall rest with the Company. Increases in the costs orexpenses incurred in fulfilling the requirementscontained herein shall not be a basis for -an extensionof time. • Similarly, delay in completing: an interimrequirement shall not automatically justify or excusedelay in the- attainment of subsequent requirements*

19. The provisions of this Order shall be binding on DiamondShamrock Chemicals Company and Karisol, Inc. and theirindependent agents, successors, assigns, and any trusteein bankruptcy or receiver appointed pursuant to aproceeding in law or equity.

20. No obligations imposed by this Order are intended toconstitute a debt, claim, penalty or ot£.er civil actionwhich could be limited or discharged in a bankruptcyproceeding. All obligations imposed by this Order shall

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constitute continuing regulatory obligations imposed pursuanttc the pclice powers of the State of New Jersey, intended toprstect the public health, safety and welfare.

21. This Order shall take effect upon the signature of allparties.

RESERVATION OF RIGHTS

This Administrative Consent Order shall be fullyenforceable in the New Jersey Superior Court upon the filingof a summary action for compliance pursuant to ExecutiveOrder No. 40 (1983) signed by Governor Thomas H. Kean on June2, 1983, N.J.S.A. App. A:9-45, N.J.S.A. 13:1D-1 et seq.. theSolid Waste Management Act, N.J.S.A. 13:1Z-1 et seq.. theWater Pollution Control Act, N.J.S.A. 58:10A-1 et seq., andthe Spill Compensation and Control Act, N.J.S.A. 58:10-23.11et seq. This Consent Order may be enforced in the samemanner as an Administrative Order issued by the Departmentpursuant tc these same statutory authorities and shall notpreclude the Department from taking whatever action it deemsappropriate to enforce the environmental protection laws ofthe State of New Jersey in any manner not inconsistent withthe terms of this Order; provided, however, that upon theCompany's satisfactory compliance with the provisions of thisOrder, the Department shall not require further remedialaction by the Company with respect tc the presence at 80Lister Avenue in the City of Newark, New Jersey of dioxin(2,3,7,8-TCDD) or other chemicals identified in the siteevaluation report approved by the Department. The partiesrecognize that this Consent Order is intended only to settlethe Department's claims against the Company for the presenceat 80 Lister Avenue in the City of Newark, New Jersey ofdioxin (2,3,7,8-TCDD) and other chemicals identified in thesite evaluation report approved by the Department, and agreethat nothing herein shall be construed to address, resolve orsettle any other matter or issue.

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Karisol, Inc. and the Company consent to this.isrr=.t-.ve Consent Order without remission of anylity and without admission of any issues of fact or law.

Diamond Shamrock chemicalsCompanj

Date:

Date:

Date: •

Date:

pate:

By:.James F. KelleyVice-President

Witness:Corporate Secretary

Marisol, inc.

By:.Peter Nerger'President.

Witness :Corporate Secxe iry

HEW JERSEY DEPARTMENT OFENVIRONMENJAJ. PROTECTJ

By:

Commissioner

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