THE BERKSHIRE GAS COMPANY 1 CONSENT DECREEThe Berkshire Gas Company headquartered in Pittsfield, Massachusetts, ("Berkshire Gas") pursuant to Section 107 of the Comprehensive Environmental

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

) UNITED STATES OF AMERICA 1

1 Plaintiff, )

) Civil Action No. v. )

) THE BERKSHIRE GAS COMPANY 1

) Defendant. )

CONSENT DECREE

VII .

VIII .

XIV .

XVI . XVII . XVIII . XIX .

XXI .

XXII .

TABLE OF CONTENTS

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.................................................................................................................................... BACKGROUND 1

JURISDICTION .............................................................................................................................. 2

PARTIES BOUND ................................................................................................................................ 2

DEFINITIONS ....................................................................................................................................... 3

STATEMENT OF PURPOSE .............................................................................................................. 4

PAYMENT OF RESPONSE COSTS .................................................................................................. 4

FAILURE TO COMPLY WITH CONSENT DECREE ................................................................... 6

COVENANT NOT TO SUE BY UNITED STATES .......................................................................... 7

RESERVATIONS OF RIGHTS BY UNITED STATES .................................................................... 8

.................................................................................................... COVENANT NOT TO SUE BY GE 8

............................................................................................. RESERVATIONS OF RIGHTS BY GE 9

..................................................................... COVENANTS NOT TO SUE BY BERKSHIRE GAS 10

................................................ EFFECT OF SETTLEMENTICONTRIBUTION PROTECTION 11

.......................................................................................................... ACCESS TO INFORMATION 12

............................................................................................................ RETENTION OF RECORDS 13

....................................................................................................... NOTICES AND SUBMISSIONS 14

................................................................................................... RETENTION OF JURISDICTION 15

............................................................................................................. INTEGRATIONJAPPENDIX 15

.................................................... LODGING AND OPPORTUNITY FOR PUBLIC COMMENT 15

SIGNATORIESISERVICE ................................................................................................................. 15

EFFECTIVE DATE ............................................................................................................................ 16

FINAL JUDGMENT ........................................................................................................................... 16

CONSENT DECREE

I. 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 against The Berkshire Gas Company headquartered in Pittsfield, Massachusetts, ("Berkshire Gas") pursuant to Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,42 U.S.C. § 9607, as amended ("CERCLA"), seeking reimbursement of response costs incurred for response actions taken at or in connection with the release or threatened release of hazardous substances at the 1 ?4 Mile Reach, which is a portion of the GE- Pittsfield/Housatonic River Site in Pittsfield, Massachusetts ("the Site").

B. Defendant Berkshire Gas, that has entered into this Consent Decree, does not admit any liability to the United States or General Electric Company ("GE") arising out of the transactions or occurrences alleged in the complaint, and, other than for purposes of this Consent Decree, does not admit any matter of fact or law arising out of the transactions or occurrences alleged in the complaint. Nothing in this paragraph is intended to affect the findings, conclusions, provisions, or judgment set forth in the Berkshire Gas Judgment described in Paragraph E of this Section I.

C. On October 27, 2000, this Court entered a consent decree in United States ofAmerica, State of Connecticut, and Commonwealth of Massachusetts v. General Electric Company, Civil Action No. 99-30225-MAP et seq., governing, inter alia, investigation and remediation of the Site ("Site Remediation Consent Decree"). Parties to the Site Remediation Consent Decree included the United States, Commonwealth of Massachusetts, State of Connecticut, GE, the City of Pittsfield, and Pittsfield Economic Development Authority. Pursuant to the Site Remediation Consent Decree, certain cleanup activities were required at and in connection with the 1 ?4 Mile Reach, known as the 1 !4 Mile Reach Removal Action. Pursuant to the Site Remediation Consent Decree, the 1 '/z Mile Reach Removal Action was completed in October 2007, except for Post-Removal Site Control activities related to the 1 % Mile Reach Removal Action. In accordance with the Site Remediation Consent Decree, EPA and GE shared the costs of the 1 ?4 Mile Reach Removal Action and hence the remediation of the 1 ?4 Mile Reach.

D. On May 29, 2002, EPA notified Berkshire Gas of its potential liability for response costs related to the GE-Pittsfield/Housatonic River Site.

E. On May 8, 2003, this Court entered a final stipulated judgment in General Electric Company v. Berkshire Gas Company, Civil Action Number 00-C030164-MAP, against Berkshire Gas and in favor of GE under Sections 107(a) and 1 13(f) of CERCLA and Sections 4 and 5 of the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (Massachusetts General Laws Chapter 21E), and 28 U.S.C. Section 2201 for contribution to, and reimbursement of, costs that GE has incurred, and will incur, in response to releases of hazardous substances as defined by CERCLA Section lOl(14) and/or oil and hazardous material as defined by Chapter 21E, Section 2, at or from former manufactured gas facilities owned and operated by Berkshire Gas or its predecessor company in Pittsfield, Massachusetts, subject to the terms of the

final stipulated judgment (the "Berkshire Gas Judgment") and the Settlement Agreement between GE and Berkshire Gas dated December 19,2002 ("Settlement Agreement").

F. During the 1 '/z Mile Reach Removal Action, EPA incurred costs related to hazardous substances generated and/or disposed of by Berkshire Gas or its predecessor company. Pursuant to the cost-sharing provisions under the Site Remediation Consent Decree, GE paid EPA a portion of the costs related to Berkshire Gas's hazardous substances.

G. On May 3 1,2007, EPA issued to Berkshire Gas a demand for recovery of costs incurred related to hazardous substances generated and/or disposed of by Berkshire Gas or its predecessor company.

H. Pursuant to the Berkshire Gas Judgment and Settlement Agreement, Berkshire Gas and GE agreed to cooperate in an effort to reach an agreement with EPA regarding the allocation of the costs incurred in connection with the performance of the 1 '/z Mile Reach Removal Action in response to hazardous substances generated and/or disposed of by Berkshire Gas or its predecessor company.

I. With respect to Berkshire Gas and GE, except as specifically set forth in Sections X, XI, XI1 and XIII, nothing in this Consent Decree is intended to expand or diminish the rights and obligations of Berkshire Gas and GE as set forth in the Berkshire Gas Judgment and the Settlement Agreement.

J. The United States, GE, and Berkshire Gas ("the Parties") agree, and this Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith, that settlement of this matter will avoid prolonged and complicated litigation between the Parties, and that this Consent Decree is fair, reasonable, and in the public interest.

THEREFORE, with the consent of the Parties to this Decree, it is ORDERED, ADJUDGED, AND DECREED:

11. JURISDICTION

1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 133 1 and 1345 and 42 U.S.C. $5 9607 and 961 3(b) and also has personal jurisdiction over Berkshire Gas. Berkshire Gas consents to and shall not challenge entry of this Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree.

111. PARTIES BOUND

2. This Consent Decree is binding upon the United States, upon GE and its successors and assigns, and upon Berkshire Gas and its successors and assigns. Any change in ownership or corporate status, including, but not limited to, any transfer of assets or real or personal property, shall in no way alter the status or responsibilities of Berkshire Gas or GE under this Consent Decree.

IV. DEFINITIONS

3. 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 any appendix attached hereto, the following definitions shall apply:

a. "1 % Mile Reach" means the portion of the Site designated as the 1 % Mile Reach of the Housatonic River, as defined in the Site Remediation Consent Decree. The 1 ?4 Mile Reach is generally shown on the map attached as Appendix A to this Consent Decree.

b. "1 ?4 Mile Reach Removal Action" means the CERCLA removal action undertaken by EPA in the 1 % Mile Reach pursuant to the Site Remediation Consent Decree. Between 2002 and 2007, EPA performed the 1 ?4 Mile Reach Removal Action (other than Post- Removal Site Control activities related to the 1 % Mile Reach Removal Action), subject to a cost-sharing agreement with GE, as set forth in the Site Remediation Consent Decree.

c. "1 54 Mile Reach Removal Action Response Costs" means the costs incurred and paid by EPA in connection with the performance of the 1 ?4 Mile Reach Removal Action through the Effective Date of this Consent Decree, including, but not limited to, such costs that have been or are required to be reimbursed by GE to EPA pursuant to the Site Remediation Consent Decree. 1 % Mile Reach Removal Action Response Costs shall not include United States Enforcement Costs or costs incurred that are subject, with respect to the United States, to the reservations of rights of the United States in Section IX of this Consent Decree or, with respect to GE, to the reservations of rights of GE in Section XI of this Consent Decree.

d. "Berkshire Gas" means The Berkshire Gas Company headquartered in Pittsfield, Massachusetts. Berkshire Gas is Settling Defendant in this consolidated action.

e. "CERCLA" means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq.

f. "Consent Decree" means this Consent Decree and all appendices attached hereto. In the event of conflict between this Consent Decree and any appendix, this Consent Decree shall control.

g. "Day" means a calendar day. 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.

h. "DOJ" means the United States Department of Justice and any successor departments, agencies or instrumentalities of the United States.

i. "Effective Date" means the effective date of this Consent Decree as provided in Paragraph 45.

j. " E P A means the United States Environmental Protection Agency and any successor departments, agencies or instrumentalities of the United States.

k. "EPA Hazardous Substance Superfund" means the Hazardous Substance Superfund established by the Internal Revenue Code, 26 U.S.C. 5 9507.

1. "General Electric" or " G E means the General Electric Company, headquartered in Fairfield, Connecticut.

m. "Interest" means interest at the rate specified for interest on investments of the Hazardous Substance Superfund established under Subchapter A of Chapter 98 of Title 26 of the U.S. Code, compounded on October 1 of each year, in accordance with 42 U.S.C. 5 9607.

n. "Paragraph" means a portion of this Consent Decree identified by an Arabic numeral or an upper or lower case letter.

o. "Parties" means the United States, General Electric Company, and The Berkshire Gas Company, each of which may individually be referenced as a "Party."

p. "RCRA" means the Solid Waste Disposal Act, 42 U.S.C. 6901 et seq. (also known as the Resource Conservation and Recovery Act).

q. "Section" means a portion of this Consent Decree identified by a Roman numeral.

r. "Site" means the GE-Pittsfield/Housatonic River Site in Pittsfield, Massachusetts, as defined in the Site Remediation Consent Decree.

s. "United States" means the United States of America, including its departments, agencies and instrumentalities.

t. "United States Enforcement Costs," or "U.S. Enforcement Costs," means the costs incurred and paid by EPA or the DOJ, with respect to enforcement of this matter between October 1, 2006 and the Effective Date.

V. STATEMENT OF PURPOSE

4. The shared objectives of the Parties entering into this Consent Decree are for Berkshire Gas to make payments to address its alleged liability to the United States and GE for costs associated with the 1 '/z Mile Reach Removal Action which were incurred by the United States or GE prior to the Effective Date as provided in the Covenant Not to Sue by the United States in Section VIII and the Covenant Not to Sue by GE in Section X, subject to the Reservations of Rights in Sections IX and XI, respectively, for Berkshire Gas to receive contribution protection as provided in Section XIII, and for the United States and GE to comply with their respective obligations under the cost-sharing provisions of the Site Remediation Consent Decree for the 1 !4 Mile Reach Removal Action.

VI. PAYMENT OF RESPONSE COSTS

5. Payment to United States of 1 '/z Mile Reach Removal Action Response Costs:

Within 30 days of the Effective Date of this Consent Decree, Berkshire Gas shall pay to the EPA $ 2,699,199, plus an additional sum for Interest on that amount calculated from August 1,2008 through the date of payment.

6.. Payment by Berkshire Gas pursuant to Paragraph 5 shall be made by FedWire Electronic Funds Transfer ("EFT") to the U.S. Department of Justice account in accordance with current EFT procedures, referencing USA0 File Number 2008V00949, the EPA Region and Site Spill ID Number 0167 and DOJ Case Number 90-1 1-3-091 66. Payments shall be made in accordance with instructions provided to Berkshire Gas by the Financial Litigation Unit of the U.S. Attorney's Office in the District of Massachusetts following lodging of the Consent Decree. Any payments received by the Department of Justice after 4:00 p.m. Eastern Time shall be credited on the next business day.

7. Payment of United States Enforcement Costs:

a. Within 60 days of the Effective Date of this Consent Decree, EPA will provide Berkshire Gas with a written summary of the amount of United States Enforcement Costs incurred between October 1,2006 and the Effective Date of this Consent Decree (the "United States Enforcement Costs Bill"). Within 30 days after receipt of the United States Enforcement Costs Bill, Berkshire Gas shall pay to the EPA the amount billed; provided however, that if the amount of United States Enforcement Costs exceeds $35,000, Berkshire Gas's obligation to pay United States Enforcement Costs shall be an obligation to pay $35,000.

b. In the event that the payment required by Paragraph 7.a is not made within 30 days of Berkshire Gas's receipt of the United States Enforcement Costs Bill, Berkshire Gas shall pay Interest on the unpaid balance. The Interest will begin to accrue upon Berkshire Gas's receipt of the United States Enforcement Costs Bill. Interest shall accrue through the date of Berkshire Gas's payment. Payment made under this subparagraph 7.b shall be in addition to such other remedies or sanctions available to the United States by virtue of Berkshire Gas's failure to make timely payment under this Section.

c. Payments made by Berkshire Gas under this Paragraph 7 shall be made to EPA by EFT to the U.S. EPA lockbox bank, referencing the name and address of the party making payment, the Site name, the EPA Region and Site Spill ID Number 0167, and DOJ Case Number 90- 1 1-3-091 66 and shall be made by EFT to:

Federal Reserve Bank of New York 33 Liberty Street New York, NY 10045 ABA No.: 02 1030004 Account No.: 6801 0727 Field Tag 4200 of the Fedwire message should read: "D68010727 Environmental Protection Agency."

Any EFTS received at the EPA lockbox after 3:30 pm (Eastern Standard Time) will be credited to the next business day.

8. The total amount to be paid to the United States pursuant to Paragraphs 5 and 7 of this Consent Decree shall be deposited by EPA in the GE-Pittsfield/Housatonic River Site Special Account within the EPA Hazardous Substance Superfund to be retained and used to conduct or finance response actions at or in connection with the Site (including but not limited to EPA's oversight or enforcement), or to be transferred by EPA to the EPA Hazardous Substance Superfund.

9. Payment to GE of 1 ?h Mile Reach Removal Action Response Costs: Within 21 days of the final entry of this Consent Decree and the successful resolution of any appeals thereof, Berkshire Gas shall pay GE the sum of one million, one hundred fifty-six thousand, eight hundred dollars ($1,156,800), together with Interest on that amount calculated from November 1, 2008 or the Effective Date (whichever is earlier) through the date of payment. Berkshire Gas shall make such payment by wire transfer of immediately available funds to GE in accordance with instructions to be provided by GE to Berkshire Gas, referencing "1 $4 Mile Reach Response Costs Payment to GE."

10. At the time of any payment under this Section VI, Berkshire Gas shall send notice to the United States and GE that payment has been made in accordance with Section XVI (Notices and Submissions).

VII. FAILURE TO COMPLY WITH CONSENT DECREE

11. Interest on Late Payments: If Berkshire Gas fails to make any payment under Paragraph 5,7, or 9 by the required due date, Interest shall continue to accrue on the unpaid balance through the date of payment.

12. Stipulated Penalty.

a. If any amounts due under Paragraphs 5 and 7 are not paid by the required due date, Berkshire Gas shall be in violation of this Consent Decree and shall pay, as a stipulated penalty, in addition to the Interest required by Paragraph 1 1, the following penalties per violation per day that such payment is late:

Penalty Per Violation Period of Noncompliance Per Day

$500 I st through 7th day $1,000 8th through 2 1 st day $2,000 22nd day and beyond

b. Stipulated penalties are due and payable within 30 days of the date of the demand for payment of the penalties by EPA. All payments to EPA under this Paragraph shall be identified as "stipulated penalties" and shall be made by EFT to the U.S. EPA lockbox bank, referencing the name and address of the party making payment, the Site name, the EPA Region and Site Spill ID Number 0167, and DOJ Case Number 90-1 1-3-09166 and shall be made by EFT to:

Federal Reserve Bank of New York

33 Liberty Street New York, NY 10045 ABA No.: 02 1030004 Account No.: 6801 0727 Field Tag 4200 of the Fedwire message should read: "D68OlO727 Environmental Protection Agency."

Any EFTS received at the EPA lockbox after 3:30 pm (Eastern Standard Time) will be credited to the next business day.

c. At the time of payment, Berkshire Gas shall send notice that payment has been made to EPA and DOJ in accordance with Section XVI (Notices and Submissions).

d. Penalties shall accrue as provided in this Paragraph regardless of whether EPA has notified Berkshire Gas of the violation or made a demand for payment, but need only be paid upon demand to Berkshire Gas. All penalties shall begin to accrue on the day after payment is due and shall continue to accrue through the date of payment. Nothing herein shall prevent the simultaneous accrual of separate penalties for separate violations of this Consent Decree.

13. If the United States brings an action to enforce this Consent Decree due to a failure by Berkshire Gas to comply, Berkshire Gas shall reimburse the United States for all costs of such action, including but not limited to costs of attorney time.

14. Payments made under this Section shall be in addition to any other remedies or sanctions available to EPA and GE by virtue of Berkshire Gas's failure to comply with the requirements of this Consent Decree, including, but not limited to, pursuant to the Berkshire Gas Judgment and the Settlement Agreement and the rights and obligations of GE and Berkshire Gas set forth therein.

15. Notwithstanding any other provision of this Section, the United States may, in its unreviewable discretion, waive payment of any portion of the stipulated penalties that have accrued pursuant to this Consent Decree. Payment of stipulated penalties shall not excuse Berkshire Gas from payment as required by Section VI or from performance of any other requirements of this Consent Decree.

VIII. COVENANT NOT TO SUE BY UNITED STATES

16. Except as specifically provided in Section IX (Reservation of Rights by United States), the United States covenants not to sue or to take administrative action against Berkshire Gas pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. $5 9606 and 9607(a), or Section 7003 of RCRA, 42 U.S.C. 5 6973 with regard to the 1 '/z Mile Reach Removal Action Response Costs and the U.S. Enforcement Costs. With respect to present and future liability, this covenant not to sue shall take effect upon receipt by EPA of all payments required by Section VI (Payment of Response Costs) and any amount due under Section VII (Failure to Comply with Consent Decree). This covenant not to sue is conditioned upon the satisfactory performance by Berkshire Gas of its obligations under this Consent Decree. This covenant not to sue extends only to Berkshire Gas and does not extend to any other person.

IX. RESERVATIONS OF RIGHTS BY UNITED STATES

17. The United States reserves, and this Consent Decree is without prejudice to, all rights against Berkshire Gas with respect to all matters not expressly included within the Covenant Not to Sue by United States in Paragraph 16. Notwithstanding any other provision of this Consent Decree, the United States reserves all rights against Berkshire Gas with respect to:

a. liability for failure of Berkshire Gas to meet a requirement of this Consent Decree;

b. criminal liability;

c. liability of Berkshire Gas for any portion of the Site other than the 1 54 Mile Reach, including any other CERCLA removal or remedial action other than the 1 54 Mile Reach Removal Action;

d. liability of Berkshire Gas for any costs related to the 1 % Mile Reach that are not included in 1 '/z Mile Reach Removal Action Response Costs or as U.S. Enforcement Costs in this action;

e. liability based upon the active operation of the Site, or upon the transportation, treatment, storage, or disposal, or arrangement for transportation, treatment, storage, or disposal, of a hazardous substance or a solid waste at or in connection with the Site, after signature of this Consent Decree by Berkshire Gas;

f. liability arising from the past, present, or future disposal, release or threat of release of a hazardous substance, pollutant, or contaminant outside of the Site; and

g. liability for damages to natural resources.

X. COVENANT NOT TO SUE BY GE

18. Except as specifically provided in Section XI (Reservation of Rights by GE), effective upon GE's receipt of payment required by Paragraph 9 of this Consent Decree, GE, for itself and its past and present officers, directors, shareholders, employees, servants, agents, legal representatives, affiliates, divisions, subsidiaries, parent companies, holding companies, other related entities, successors and assigns, hereby:

a. Fully, completely, unconditionally, irrevocably and forever releases and discharges Berkshire Gas and Berkshire Gas's past and present officers, directors, shareholders, employees, servants, agents, legal representatives, affiliates, divisions, subsidiaries, parent companies, holding companies, other related entities, successors and assigns, of and from any and all claims, demands, agreements, contracts, promises, covenants, omissions, rights, causes of action, damages (consequential, compensatory, special, punitive or otherwise), losses, debts, compensation, sums and sums of money, loss of income, obligations, attorney fees, other fees, expenses, costs, and liabilities whatsoever, of every nature, kind, character and description, both in law (including, without limitation, Section 107 of CERCLA, 42 U.S.C. § 9607, and/or Massachusetts General Law Chapter 21E) and equity, whether written or oral, known or

unknown, suspected or unsuspected, matured or unmatured, vested or unvested, contingent or fixed, and whether based upon the law of the United States or the law of any state, statute, contract, tort, common law, or any other law, or any other legal or equitable theory or source, for, upon, or by reason of any matter, act, omission, cause or thing whatsoever, with respect to the 1 % Mile Reach Removal Action Response Costs; and

b. Covenants not to sue or assert any claims or causes of action against Berkshire Gas pursuant to Sections 107(a) andlor 113 of CERCLA, 42 U.S.C. $ 5 9607 and 9613, or Sections 4 and/or 5 of Massachusetts General Law Chapter 21E, including claims for contribution pursuant to those provisions, with regard to the 1 '/2 Mile Reach Removal Action or the 1 1/2 Mile Reach; except that in the event that a person or entity that is not a party to this Consent Decree brings a claim or cause of action against GE for recovery of costs relating to the 1 '/Z Mile Reach Removal Action or the 1 '/2 Mile Reach, this provision shall not bar GE from bringing a contribution action or claim against Berkshire Gas.

XI. RESERVATIONS OF RIGHTS BY GE

19. GE reserves, and this Consent Decree is without prejudice to, all rights against Berkshire Gas with respect to all matters not expressly included within the Covenant Not to Sue by GE in Paragraph 18 of this Consent Decree. Notwithstanding any other provision of this Consent Decree, subject to the rights and obligations of GE and Berkshire Gas set forth in the Berkshire Gas Judgment or the Settlement Agreement, GE reserves all rights against Berkshire Gas with respect to:

a. liability for failure of Berkshire Gas to meet a requirement of this Consent Decree;

b. liability of Berkshire Gas for any portion of the Site other than the 1 '/z Mile Reach, including any other CERCLA removal or remedial action at any portion of the Site other than the 1 Mile Reach;

c, liability of Berkshire Gas for costs related to or incurred in connection with the performance of the 1 '/2 Mile Reach Removal Action, or otherwise related to or incurred in connection with the 1 54 Mile Reach, that are incurred after the Effective Date;

d. subject to and except as provided in Paragraph 18.b of this Consent Decree, liability of Berkshire Gas for any costs related to the 1 '/2 Mile Reach Removal Action or the 1 % Mile Reach that are not included in the 1 !h Mile Reach Removal Action Response Costs;

e. liability based upon the active operation of the Site, or upon the transportation, treatment, storage, or disposal, or arrangement for transportation, treatment, storage, or disposal, of a hazardous substance or a solid waste at or in connection with the Site, after signature of this Consent Decree by Berkshire Gas; and

f. liability arising from the past, present, or future disposal, release or threat of release of a hazardous substance, pollutant, or contaminant outside of the Site.

XII. COVENANTS NOT TO SUE BY BERKSHIRE GAS

20. Berkshire Gas covenants not to sue and agrees not to assert any claims or causes of action against the United States, or its contractors or employees, with respect to the 1 !h Mile Reach Removal Action Response Costs, the United States Enforcement Costs or this Consent Decree, including but not limited to:

a. any direct or indirect claim for reimbursement from the Hazardous Substance Superfund based on Sections 106(b)(2), 107, 1 1 1, 1 12 or 1 13 of CERCLA, 42 U.S.C. $ 5 9606(b)(2), 9607,961 1,9612, or 961 3, or any other provision of law;

b. any claim arising out of response actions at or in connection with the 1 !4 Mile Reach Response Costs and United States Enforcement Costs, including any claim under the United States Constitution, the State Constitution, the Tucker Act, 28 U.S.C. 5 1491, the Equal Access to Justice Act, 28 U.S.C. 5 2412, as amended, or at common law; or

c. any claim against the United States pursuant to Sections 107 and 1 13 of CERCLA, 42 U.S.C. $ 5 9607 and 9613, relating to the 1 ?4 Mile Reach Removal Action Response Costs or United States Enforcement Costs.

2 1. Except as provided in Paragraph 23 (Waiver of Claims) and Paragraph 28 (Waiver of Claim-Splitting Defenses), these covenants not to sue shall not apply in the event the United States brings a cause of action or issues an order pursuant to the reservations set forth in Paragraph 17, but only to the extent that Berkshire Gas's claims arise from the same response action or response costs that the United States is seeking pursuant to the applicable reservation.

2 i Nothing in this Consent Decree shall be deemed to constitute approval or preauthorization of a claim within the meaning of Section 11 1 of CERCLA, 42 U.S.C. 5 961 1, or 40 C.F.R. 300.700(d).

23. Except with respect to GE, Berkshire Gas agrees not to assert any claims or causes of action that it may have under CERCLA and shall dismiss any pending claims or causes of action that it has already asserted under CERCLA for all matters relating to the 1 !4 Mile Reach Removal Action Response Costs or the United States Enforcement Costs, including for contribution, against any other person; except, however, that Berkshire Gas respectively reserves any and all rights to assert causes of action pursuant to CERCLA for costs incurred that are subject to the reservation of rights of the United States in Section IX of this Consent Decree or the reservation of rights of GE in Section XI of the Consent Decree. This waiver shall not apply with respect to any defense, claim, or cause of action that Berkshire Gas may have against any person if such person asserts a claim or cause of action relating to the Site against Berkshire Gas.

24. Subject to the rights and obligations of GE and Berkshire Gas as set forth in the Berkshire Gas Judgment and the Settlement Agreement, Berkshire Gas:

a. Fully, completely, unconditionally, irrevocably and forever releases and discharges GE and GE's past and present officers, directors, shareholders, employees, servants, agents, legal representatives, affiliates, divisions, subsidiaries, parent companies, holding companies, other related entities, successors and assigns, of and from any and all claims,

demands, agreements, contracts, promises, covenants, omissions, rights, causes of action, damages (consequential, compensatory, special, punitive or otherwise), losses, debts, compensation, sums and sums of money, loss of income, obligations, attorney fees, other fees, expenses, costs, and liabilities whatsoever, of every nature, kind, character and description, both in law (including, without limitation, Section 107 of CERCLA, 42 U.S.C. fj 9607, and/or Massachusetts General Law Chapter 2 1 E) and equity, whether written or oral, known or unknown, suspected or unsuspected, matured or unrnatured, vested or unvested, contingent or fixed, and whether based upon the law of the United States or the law of any state, statute, contract, tort, common law, or any other law, or any other legal or equitable theory or source, for, upon, or by reason of any matter, act, omission, cause or thing whatsoever, with respect to the 1 !A Mile Reach Removal Action Response Costs or the United States Enforcement Costs; and

b. Covenants not to sue or assert any claims or causes of action against GE pursuant to Sections 107(a) andlor 113 of CERCLA, 42 U.S.C. $ 5 9607 and 9613, or Sections 4 and/or 5 of Massachusetts General Law Chapter 2 1 E, including claims for contribution pursuant to those provisions, with regard to the 1 !h Mile Reach Removal Action or the 1 !h Mile Reach; except that in the event that a person or entity that is not a party to this Consent Decree brings a claim or cause of action against Berkshire Gas for recovery of costs relating to the 1 '/z Mile Reach Removal Action or the 1 !A Mile Reach, this provision shall not bar Berkshire Gas from bringing a contribution action or claim against GE;

Provided, however, that, notwithstanding Paragraphs 24.a and 24.b of this Consent Decree, Berkshire Gas reserves, and this Consent Decree is without prejudice to, all rights against GE with respect to all matters not expressly included within Paragraphs 24.a and 24.b of this Consent Decree, including all rights to assert causes of action against GE, including but not limited to causes of action pursuant to CERCLA or Sections 4 andlor 5 of Massachusetts General Law Chapter 2 lE, subject to the Berkshire Gas Judgment and the Settlement Agreement, for costs incurred that are subject to the reservation of rights of the United States in Section IX of this Consent Decree or the reservation of rights of GE in Section XI of this Consent Decree.

XIII. EFFECT OF SETTLEMENTICONTRIBUTION PROTECTION

25. Except as provided in Paragraphs 23 and 24, nothing in this Consent Decree shall be construed to create any rights in, or grant any cause of action to, any person not a Party to this Consent Decree. The preceding sentence shall not be construed to waive or nullify any rights that any person not a signatory to this Consent Decree may have under applicable law. Except as provided in Paragraphs 23 and 24, the Parties expressly reserve any and all rights (including, but not limited to, any right to contribution), defenses, claims, demands, and causes of action which they may have with respect to any matter, transaction, or occurrence relating in any way to the Site against any person not a Party hereto.

26. The Parties agree, and by entering this Consent Decree this Court finds, that Berkshire Gas is entitled, as of the Effective Date of this Consent Decree, to protection from contribution actions or claims as provided by Section 113(f)(2) of CERCLA, 42 U.S.C. 5 96 l3(f)(2), or other applicable law, for "matters addressed" in this Consent Decree. The "matters addressed" in this Consent Decree are the 1 !A Mile Reach Removal Action Response

Costs, the United States Enforcement Costs, and any response actions that have been taken andlor response costs that have been incurred by any person or entity other than the United States or GE at or in connection with the 1 '/z Mile Reach Removal Action; provided , however, that in the event such person or entity brings a claim or cause of action against GE for such response costs, this, provision shall not bar GE from bringing a contribution action or claim against Berkshire Gas to the extent otherwise allowed under this Consent Decree. The "matters addressed" in this Consent Decree do not include those response costs or response actions as to which the United States or GE has reserved rights pursuant to Sections IX and XI, respectively, of this Consent Decree.

27. Berkshire Gas agrees that, with respect to any suit or claim for contribution brought against it for matters related to this Consent Decree, it will notify EPA, DOJ, and GE in writing within l0,days of service of the complaint or claim upon it. In addition, Berkshire Gas shall notify EPA and DOJ within 10 days of service or receipt of any Motion for Summary Judgment, and within 10 days of receipt of any order from a court setting a case for trial, for matters related to this Consent Decree. Berkshire Gas also agrees that, with respect to any counterclaim for contribution or cost recovery brought by it for matters related to this Consent Decree, it will notify EPA and DOJ in writing no later than 60 days prior to the initiation of such counterclaim.

28. In any subsequent administrative or judicial proceeding initiated by the United States or GE for injunctive relief, recovery of response costs, or other relief relating to the Site, Berkshire Gas shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon any contention that the claims alleged by the United States or GE in the subsequent proceeding were or should have been brought in the instant case; provided, however, that nothing in this Paragraph affects the enforceability of the Covenant Not to Sue by United States set forth in Section VIII or the Covenant Not to Sue by GE set forth in Section X.

29. Entry and compliance with the terms of this Consent Decree will resolve all claims GE may have against the United States pursuant to the Site Remediation Consent Decree for a share of costs paid or to be paid pursuant to this Consent Decree by Berkshire Gas to the United States in reimbursement of 1 ?4 Mile Reach Removal Action Response Costs.

30. Berkshire Gas and GE agree that in the event that GE seeks reimbursement from Berkshire Gas for response costs or response actions for which GE has reserved rights pursuant to Section XI of this Consent Decree and which are covered by the Settlement Agreement and the Berkshire Gas Judgment, GE and Berkshire Gas shall adhere to their respective obligations under the Settlement Agreement and the Berkshire Gas Judgment, as applicable, including, but not limited to, the process set forth in Section 6 (Demand for Cost Reimbursement), the allocation principles set forth in Section 7 (Principles for Cost Reimbursement) and the dispute resolution provisions set forth in Section 8 (Dispute Resolution) of the Settlement Agreement.

XIV. ACCESS TO INFORMATION

3 1. Berkshire Gas shall provide to EPA, upon request, copies of all records, reports, or information (hereinafter referred to as "records") within its possession or control or that of its contractors or agents relating to activities at the Site or the liability of any person under

CERCLA with respect to the Site, if needed, including, but not limited to, sampling, analysis, chain of custody records, manifests, receipts, reports, correspondence, deposition transcripts, meeting minutes, daily calendars or other documents or information related to the Site.

32. Confidential Business Information and Privileged Documents:

a. Berkshire Gas may assert business confidentiality claims covering part or all of the records submitted to EPA under this Consent Decree to the extent permitted by and in accordance with Section 104(e)(7) of CERCLA, 42 U.S.C. $9604(e)(7), and 40 C.F.R. 2.203(b). Records determined to be confidential by EPA will be accorded the protection specified in 40 C.F.R. Part 2, Subpart B. If no claim of confidentiality accompanies records when they are submitted to EPA, or if EPA has notified Berkshire Gas that the records are not confidential under the standards of Section 104(e)(7) of CERCLA or 40 C.F.R. Part 2, Subpart B, the public may be given access to such records without further notice to Berkshire Gas.

b. Berkshire Gas may assert that certain records are privileged under the attorney- client privilege or any other privilege recognized by federal law. If Berkshire Gas asserts such a privilege in lieu of providing records, it shall provide EPA with the following: 1) the title of the record; 2) the date of the record; 3) the name and title of the author of the record; 4) the name and title of each addressee and recipient; 5) a description of the subject of the record; and 6) the privilege asserted. However, no records created or generated pursuant to the requirements of this or any other settlement with the United States shall be withheld on the grounds that they are privileged.

33. No claim of confidentiality shall be made with respect to any data, including but not limited to, all sampling, analytical, monitoring, hydrogeologic, scientific, chemical, or engineering data, or any other factual information evidencing conditions at or around the Site.

XV. RETENTION OF RECORDS

34. Until 10 years after the Effective Date of this Consent Decree, Berkshire Gas shall preserve and retain all records now in its possession or control, or which come into its possession or control, that relate in any manner to response actions taken at the Site or the liability of any person under CERCLA with respect to the Site, regardless of any corporate retention policy to the contrary.

35. Upon request by EPA or DOJ, Berkshire Gas shall deliver any such records to EPA. Berkshire Gas may assert that certain records are privileged under the attorney-client privilege or any other privilege recognized by federal law. If Berkshire Gas asserts such a privilege, it shall provide EPA and DOJ with the following: 1) the title of the record; 2) the date of the record; 3) the name and title of the author of the record; 4) the name and title of each addressee and recipient; 5) a description of the subject of the record; and 6) the privilege asserted. However, no records created or generated pursuant to the requirements of this or any other settlement with the United States shall be withheld on the grounds that they are privileged.

36. Berkshire Gas hereby certifies that, to the best of its knowledge and belief, after thorough inquiry, it has not altered, mutilated, discarded, destroyed or otherwise disposed of any records, reports, or information relating to its potential liability regarding the Site since

notification of potential liability by the United States or the State or the filing of suit against it regarding the Site and that it has fully complied with any and all EPA requests for information pursuant to Sections 104(e) and 122(e) of CERCLA, 42 U.S.C. $ 5 9604(e) and 9622(e), and Section 3007 of RCRA, 42 U.S.C. 5 6927.

XVI. NOTICES AND SUBMISSIONS

37. Whenever, under the terms of this Consent Decree, notice is required to be given or a document is required to be sent by one party to another, it shall be directed to the individuals at the addresses specified below, unless those individuals or their successors give notice of a change to'the other Parties in writing. Written notice as specified herein shall constitute complete satisfaction of any written notice requirement of the Consent Decree with respect to the United States, EPA, DOJ, GE, and Berkshire Gas, respectively.

As to the United States:

As to DOJ: --

Chief, Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice (DJ # 90-1 1-3-091 66) P.O. Box 761 1 Washington, D.C. 20044-761 1

Office of Environmental Stewardship U.S. Environmental Protection Agency Region I 1 Congress Street, Suite 1100 (SAA) Boston, MA 02 1 14-2023 Attn: GE-Housatonic Site Attorney

EPA Cincinnati Financial Office 26 art in Luther King Drive Cincinnati, OH 45268

As to GE: --

Michael T. Carroll Manager, Pittsfield Remediation Programs General Electric Company 159 Plastics Avenue Pittsfield, MA 01201

Roderic J. McLaren Counsel, Pittsfield/Housatonic River Remediation

General Electric Company 159 Plastics Avenue Pittsfield, MA 0 120 1

As to Herkshire Gas:

Richard E. Nasman, P.E. Director of Operations The Berkshire Gas Company 1 15 Cheshire Road Pittsfield, MA 0 120 1

Martin T. Booher Dewey & LeBoeuf LLP Goodwin Square 225 Asylum Street, 13th Floor Hartford, CT 06 103

XVII. RETENTION OF JURISDICTION

38. This Court shall retain jurisdiction over this matter for the purpose of interpreting and enforcing the terms of this Consent Decree.

XVIII. INTEGRATIONIAPPENDIX

39. This Consent Decree and its appendix constitute the final, complete and exclusive agreement and understanding among the Parties with respect to the settlement embodied in this Consent Decree. The Parties acknowledge that there are no representations, agreements or understandings relating to the settlement other than the Berkshire Gas Judgment and the Settlement Agreement and those expressly contained in this Consent Decree. The following appendix is attached to and incorporated into this Consent Decree:

Appendix A = map of the 1 % Mile Reach

XIX. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

40. This Consent Decree shall be lodged with the Court for a period of not less than 30 days for public notice and comment. The United States reserves the right to withdraw or withhold its consent if the comments regarding the Consent Decree disclose facts or considerations which indicate that this Consent Decree is inappropriate, improper, or inadequate. GE and Berkshire Gas consent to the entry of this Consent Decree without further notice.

4 1. If for any reason this Court should decline to approve this Consent Decree in the form presented, this agreement is voidable at the sole discretion of any Party and the terms of the agreement may not be used as evidence in any litigation between the Parties.

XX. SIGNATORIES/SERVICE

42. 'The undersigned representatives of GE and of Berkshire Gas and the Assistant Attorney General for the Environment and Natural Resources Division of the United States Department of Justice each certifies that he or she is authorized to enter into the terms and conditions of this Consent Decree and to execute and bind legally such Party to this document.

43. GE and Berkshire Gas each hereby agrees not to oppose entry of this Consent Decree by this Court or to challenge any provision of this Consent Decree, unless the United States has notified GE and Berkshire Gas in writing that it no longer supports entry of the Consent Decree.

44. Berkshire Gas shall identify, on the attached signature page, the name and address of an agent who is authorized to accept service of process by mail on its behalf with respect to all matters arising under or relating to this Consent Decree. Berkshire Gas hereby agrees to accept service: in that manner and to waive the formal service requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable local rules of this Court, including but not limited to, service of a summons. The Parties agree that Berkshire Gas need not file an answer to the complaint in this action unless or until the Court expressly declines to enter this Consent Decree.

XXI. EFFECTIVE DATE

45. The Effective Date of this Consent Decree shall be the date upon which the Consent Decree is entered by the Court, or a motion to enter is granted as reflected by the Court's docket, whichever is earlier.

XXII. FINAL JUDGMENT

46. Upon approval and entry by this Court of this Consent Decree, this Consent Decree shall constitute the final judgment between and among the United States, GE, and Berkshire Gas. The Court finds that there is no just reason for delay and therefore enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58.

SO ORDERED THIS - DAY OF ,2-.

United States District Judge

THE UNDERSIGNED PARTIES enter into this Consent Decree in the matter of United States of America v. Berkshire Gas Company, relating to the GE-Pittsfield/Housatonic River Superfund Site.

FOR THE UNITED STATES OF AMERICA

&&+dl Ronald J. Tenpas Assistant Attorney General Environment and Natural Resources

Division United States Department of Justice Washington, D.C. 20530

By: Catherine Adarns Fiske Trial Attorney ~nvironment-a1 Enforcement Section One Gateway Center -- Suite 616 Newton, MA 02458 (617) 450-0444

Michael J. Sullivan United States Attorney District of Massachusetts

Karen Goodwin Assistant United States Attorney District of Massachusetts 1550 Main Street Springfield, Massachusetts

FOR THE: UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

Robert W. Varney Regional Administrator, Region I U.S. Environmental Protection Agency 1 Congress Street, Suite 1 100 Boston, MA 02 1 14-2023

Senior Enforcement Counsel U.S. Environmental ,Protection Agency 1 Congress Street, Suite 1 100 Boston, MA 02 1 14-2023

THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States of America v. Berkshire Gas Company, relating to the GE-Pittsfield/Housatonic River Superfund Site.

Date: :hi. FOR THE BERKSHIRE GAS COMPANY

~ a r e n Zink / President, Treasurer & COO The Berkshire Gas Company 1 15 Cheshire Road Pittsfield. MA 0 120 1

Agent Authorized to Accept Service on Behalf of Above-signed Party:

Richard E. Nasman, P.E. Director of Operations The Berkshire Gas Company 1 15 Cheshire Road Pittsfield. MA 0 120 1

THE UNDERSIGNED PARTY enters into this Consent Decree in the matter of United States of America v. Berkshire Gas Company, relating to the GE-PittsfieldIHousatonic River Superfund Site.

FOR GENERAL ELECTRIC COMPANY:

Date: \5 CX5 A-T v - ~ Ann R. Klee Vice President, Corporate Environmental Programs General Electric Company 3 135 Easton Turnpike Fairfield, CT 0643 1

A,gent Authorized to Accept Service on Behalf of Above-signed Party:

Roderic J. McLaren Counsel, Pittsfield/Housatonic River Remediation General Electric Company 159 Plastics Avenue Pittsfield, MA 01 201 (4 13) 448-5907

PRIVILEGED AND CONFIDENTIAL PREPARED IN ANTICIPATION OF LITIGATION

ENFORCEMENT SENSITIVE

LITIGATION REPORT AND SETTLEMENT ANALYSIS ACTION UNDER CERCLA SECTION 107(a)

AGAINST BERSKHIRE GAS CORPORATION

GE-Pittsfield/Housatonic River Site Pittsfield, Massachusetts

U.S. EPA, REGION I October 2008

Prepared by:

Joan Buonopane Cost Recovery Specialist 617-918-1227

Tim Conway Senior Enforcement Counsel 617-918-1705

Dean Tagliaferro GE-Housatonic Team Leader 617-918-1282

TABLE OF CONTENTS

I. SUMMARY OF SETTLEMENT

II. SITE HISTORY AND RESPONSE ACTIONS

III. ENFORCEMENT HISTORY

IV. TEN-POINT SETTLEMENT ANALYSIS

V. CONCLUSION 13

INTRODUCTION

This document refers to the U.S. Department of Justice ("DOJ") a proposed settlement under CERCLA Section 107 at the GE-Pittsfield/Housatonic River Site. This Litigation Report and

• Settlement Analysis provides a description and history of the Site and contains the ten-point settlement analysis as specified in the Interim CERCLA Settlement Policy dated December 5, 1984. The proposed settlement, the terms of which are contained in the attached Consent Decree (Attacliment 1), concerns the payment by The Berkshire Gas Company ("Berkshire Gas") of costs incurred by EPA in responding to contamination generated by Berkshire Gas which was deposited in the Housatonic River.

I. SUMMARY OF SETTLEMENT

As part of the overall cleanup of polychlorinated biphenyl ("PCB") contamination from the GE-Pittsfield/Housatonic River Site, EPA removed 91,700 cubic yards of contaminated sediment and bank soils from a segment of the River known as the 1 V2 Mile Reach. EPA's response work was pursuant to a cost-sharing agreement with General Electric Company ("GE"). Among the 91,700 cubic yards of contamination which EPA remediated were approximately 7000 cubic yards of contamination generated by Berkshire Gas. The proposed Consent Decree includes a settlement of EPA's claims against Berkshire Gas for recovery of EPA's costs incurred in exchange for Berkshire Gas's agreement to pay nearly 100% of all such costs. In total, EPA is recovering nearly $2.8 million from Berkshire Gas, and the recovered monies are to be transferred to EPA's site-specific account for future project use. (The proposed Decree also resolves claims by GE against Berkshire Gas for the same contamination, because GE had previously paid EPA its share of the costs associated with Berkshire Gas's contaminants. GE recovers $1,156,800 from Berkshire Gas in this action.)

II. SITE HISTORY AND RESPONSE ACTIONS

A. Site Description:

Berkshire Gas and its predecessor, Pittsfield Coal Gas Company, performed coal gasification at two facilities adjacent to the Housatonic River ("River"). The Pittsfield Coal Gas Company operated a manufactured gas plant ("MGP") on Water Street (now Deming Street) from approximately 1853 to 1902. In 1902, the gas manufacturing operation was relocated to Beaver Street (now East Street). In 1969, Berkshire Gas relocated its operations to Cheshire Road, and in 1973 sold the East Street property to GE.

Subsequent to Berkshire Gas's operation on East Street, GE utilized the East Street property as part of its 254-acre facility in Pittsfield. From 1932-1977, GE used polychlorinated biphenyls ("PCBs") in its transformer manufacturing and repair operations at GE's Pittsfield facility.

Large amounts of PCBs were disposed of in, among other places, soils in Pittsfield, a 26-acre lake, and in the sediment and bank soils of the Housatonic River (the "River"). PCBs are a carcinogen in animals, a probable human carcinogen, and have also been shown to cause a wide range of other adverse health effects. The PCBs in soils and sediment in Pittsfield and the River present unacceptable risks to human health and the environment.

B. Site Response History:

This proposed cost recovery action against Berkshire Gas is related to a larger CERCLA enforcement action brought by the United States, Massachusetts and Connecticut against GE. That being the case, the discussion of the history of site response will address Berkshire Gas's contamination contribufions as part of a discussion of the overall site response.

The United States banned PCBs from use in 1977. In the 1980's, EPA and Massachusetts DEP, pursuant to their respective administrative authorities, required investigations by GE of contamination at its facility. In 1991, EPA proposed a correcfive action permit for GE under the Resource Conservation and Recovery Act ("RCRA"). Following appeals by GE and Massachusetts, the Permit was made effective in January 1994.

In September 1997, EPA proposed for inclusion on the National Priorities List ("NPL") the GE-Pittsfield/Housatonic River Site. After lengthy negotiations, in October 1999, the U.S., Connecticut, Massachusetts, GE, the City of Pittsfield ("City"), and the Pittsfield Economic Development Authority ("PEDA") entered into a comprehensive Consent Decree ("Decree") that includes the following components:

-investigation and, if necessary, cleanup of twenty separate areas of contaminated soils, five groundwater management areas, and the River;

- natural resource restoration, both through direct restoration obligations on GE, and a $15.5 million payment by GE to natural resource trustees to address past damage to natural resources; and

-redevelopment of a 50-acre parcel within the former GE facility.

The Decree was entered by the federal court in October 2000, making effective all of GE's obligations at the Site. At the time of entry, EPA estimated that the Decree's estimated value of GE's obligations in cleanup and restoration was $300-700 million.

The River cleanup is being performed in three segments, or "reaches", known as the following: the Upper I/2 Mile Reach; the 1 V2 Mile Reach; and the Rest of River. Most relevant for

purposes of this referral is the 1 '/2 Mile Reach Removal Action. In the Decree, GE is paying all Site response costs for all the soil and groundwater response actions, and for the Upper V2 Mile Reach. However, for the CERCLA removal action governing the 1 Y2 Mile Reach, EPA performed the CERCLA response acdon under a cost-sharing agreement with GE. The remediadon components of the 1 '72 Mile Reach Removal Action have been completed, and, under the cost sharing agreement, GE has paid roughly $50 million and EPA has paid roughly $35 million.

During performance of the 1 '/2 Mile Reach Removal Action, EPA encountered MGP waste, also referred to as coal tar, on several occasions. Such events caused EPA to incur very significant response costs under CERCLA. As noted above, this is the sole response action for which GE is not responsible for performing and paying all response costs; that being the case, a portion of EPA's response costs relating to cleanup of Berkshire Gas's contaminants are not being reimbursed by GE.

The cleanup of the Upper V2 Mile Reach was performed and paid for by GE. EPA performed oversight of GE's work. During that cleanup, coal tar was discovered on several occasions. GE remediated that coal tar NAPL, and has pursued Berkshire Gas for the costs. This referral does not seek recovery of EPA costs for the Upper Y2 Mile Reach, because GE reimbursed EPA for EPA's costs of oversight, and EPA did not have direct cleanup costs for the Upper Yz Mile Reach.

Ill ENFORCEMENT HISTORY

The EPA and MassDEP enforcement responses to Berkshire Gas's contamination are as follows: -On March 29, 1990, MassDEP sent Berkshire Gas a nofice of Berkshire Gas's responsibility under Mass. Gen. Stat. 21E for releases of oil and hazardous materials at and from the Berkshire Gas East Street facility.

-On May 5, 2000. MassDEP issued Berkshire Gas a Notice of Responsibility ("NOR") and a Notice of Response Action ("NORA"). The letter described a release of hazardous substances, and that free-phase oil and tar globules exhibiting coal tar odors were observed in several locations in the river between Elm Street and Dawes Street. An oil sample collected by EPA was analyzed for, inter alia, polynuclear aromatic hydrocarbons ("PAHs") and metals. Based on gas chromatography fingerprinting, MassDEP indicated in the May 5, 2000 letter that the oil may pose a significant risk of hann to health, safety, public welfare and the environment. MassDEP

identified Berkshire Gas as a party with potential liability for response actions at that disposal site.

-On May 29, 2002, EPA issued Berkshire a Notice of Potential Liability with respect to releases and/or threats of releases at and/or from the 1 Y2 Mile Reach of the Housatonic River. (Attachment 2) Among the evidence cited by EPA in that Notice were the following:

1. Presence of free-phase oil and tar globules having a coal tar odor in sediment samples EPA had collected in the 1 Y2 Mile Reach south of Elm Street and north of Dawes Avenue. (Attachment 3 is a map of the 1 Y2 Mile Reach, including identification of the cells in which the action was implemented.)

2. Presence of PAHs in sediment and riverbank samples EPA collected in the 1 Y2 Mile Reach near Deming Street, and in a sediment sample containing NAPL that EPA collected on June 1, 2002 in the River adjacent to Deming Street. The PAHs detected in these samples were consistent with PAHs typically found at manufactured gas plant sites.

3. The conclusion in a May 2001 ENSR International report that contamination from a manufactured gas plant was observed in properties near Deming Street and that free-phase oil, identified as coal tar, was observed in a parcel on or near the riverbanks in the 1 Y2 Mile Reach.

4. The PAHs detected in samples collected by EPA between Elm Street and Dawes Avenue in the 1 Y2 Mile Reach are consistent with the PAHs detected in samples collected by ENSR at Pittsfield Coal Gas Company's former plant on Deming Street.

5. Public records indicate that the Pittsfield Coal Gas Company owned and operated a coal gasification facility on Deming Street, and that in 1954 Pittsfield Coal Gas Company reorganized under the new name of Berkshire Gas Company.

-On May 31, 2007, EPA notified Berkshire Gas of EPA's proposed cost recovery action and demanded recovery of EPA's costs. (Attachment 4).

-After information exchange and settlement negotiations, Berkshire Gas agreed to pay EPA's response costs in this matter. Contemporaneous with those discussions, Berkshire Gas was also negotiating with GE because GE is seeking contribution from Berkshire Gas for GE's payment of costs in responding to the coal tar waste.

IV. TEN POINT SETTLEMENT ANALYSIS

1. Volume of Wastes Contributed by Settling Party:

Berkshire Gas is the only Settling Party responsible for the coal tar, NAPL-impacted sediment and soil. Below is EPA's estimate of the cubic yards of coal tar-related sediments and bank soils addressed by EPA in the 1 Y2 Mile Reach.

Implementation of the 1 Y2 Mile Reach Removal Action was divided into over 45 separate "cells" where cleanup work was done individually. In ten of those cells, EPA encountered NAPL-impacted sediment and soil. Each such occurrence caused EPA to incur additional response costs. In each occurrence, the NAPL-impacted sediment and soil was comprised of substances which make up coal tar. (See Attachment 5, June 30, 2004 report of EPA Environmental Scientist Andrew F. Beliveau, "Identification of DNAPL Residues Collected in the 1 Y2 Mile Cells During Remediation of the Housatonic River" ("Beliveau Report").)

The occurrences of NAPL-impacted sediment and soil were as follows:

9/26/02 - 10/02/02 Cell lA 53 cubic yards ("cy") 10/02/02 - 10/04/02 Cell IB 110 cy 11/11/02-11/15/02 Cell 3 200 cy 4/30/03-5/09/03 Cell 11 10 cy 5/27/03 - 6/12/03 Cell 1 lA 462 cy 6/25/03-7/29/03 Cell 12A 656 cy 9/04/03 - 10/22/03 Cell 13 1129 cy 1/8/04-3/24/04 Cells 14&15 257 cy 5/25/04 - 7/28/04 Cells 16& 17 3191 cy 7/30/04-9/17/04 Cells 18&19 685 cy 9/28/04 - 10/25/04 Cell 20 196 cy

The total volume of NAPL-impacted sediment and soil was 6949 cy.

2. Nature of Wastes Contributed by Settling Partv:

The Beliyeau Report referenced above provides evidence that the NAPL for which costs were incurred in the 1 Y2 Mile Reach was generated by Berkshire Gas. The conclusions of the

Beliveau Report are twofold: first, that the DNAPL attributed to coal tar PAHs found in the Upper Y2 Mile Reach is very similar to the DNAPL PAHs found in the cells of the EPA-remediated 1 Y2 Mile Reach; and second, that the origin of the 1 I/2 Mile Reach DNAPL residues appears to be from a coal gasification process.

3. Strength of Evidence Tracing Wastes at Site to Settling Party:

Generally, when there is a release or threatened release of hazardous substances from a facility that causes the incurrence of response costs, and such costs are not inconsistent with the National Contingency Plan, all costs are recoverable against liable parties.

A. "Release or Substanfial Threat of Release" - CERCLA Section 101(22) defines "release" to include, inter aha, the following: spilling, leaking, pouring, emptying, discharging, leaching, dumping or disposing into the environment. Coal tar was found in the River sediment and bank soil, and thus was released to that point.

B. "Hazardous Substance" - CERCLA Secfion 101(14) defines "hazardous substance" broadly by referring to substances listed under other federal statutes. An overall listing of "hazardous substances" is 40 C.F.R. Section 302.4. The coal tar found in the 1 Y2 Mile Reach contains specified hazardous substances listed in Section 302.4, including the following: benzo(a)anthracene, benzo(b)fluoranthene, benzo(k)fluoranthene, benzo(a)pyrene, chrysene, and naphthalene. The concentrations of these hazardous substances in the Upper Y2 Mile Reach and the 1 Y2 Mile Reach ranged from 13 parts per million ("ppm") to 3600 ppm.

C. "Facility" - CERCLA Section 101(9) defines "facility", inter alia, to include: (A) any building, structure, installation, equipment, or storage container; and (B) any site or area where a hazardous substance has been deposited, stored, disposed of, placed, or otherwise come to be located. Berkshire Gas's predecessor, Pittsfield Coal Gas Company, operated a manufactured gas plant on Deming Street, adjacent to the 1 I/2 Mile Reach, from 1853-1902, and then relocated to the comer of East and Newell Street adjacent to the upstream LIppcr /2 Mile Reach, and continued with MGP operations at that location.

D. "Costs Incurred" ~ EPA has documented its incurrence of costs related to the pockets of coal tar found in the River. As discussed below, EPA's share of the costs incurred for the 1 1/2 Mile Reach Removal Action was 70 percent. EPA's share of costs through March 10, 2008 related to the coal tar identification is $2,699,199,which include EPA personnel costs, U.S. Army Corps of Engineers ("Corps") costs. Corps contractor costs in remediating the coal tar in the 1 Y2 Mile Reach, EPA indirect costs, and interest from May 31, 2007 to March 10,

2008. In addition, EPA has incurred enforcement costs, defined as U.S. Enforcement Costs in the Decree. Decree, Para. 3. The U.S. Enforcement Costs include costs incurred in pursuing this cost recovery enforcement against Berkshire Gas. As of September 23, 2008, U.S. Enforcement Costs are $41,515. See Attachment 6 for a cost summary.'

E. "Liable Party" ~ CERCLA establishes the four following categories of parties that can be termed "liable" or "potentially responsible parties", or "PRPs: current owner or operator of a facility; the owner or operator of a facility at the time of disposal of hazardous substances; the arranger, or generator, of the hazardous substances released from the facility; and the transporter of the hazardous substances to the facility. Berkshire Gas is liable under the following rationales: first, as the generator of the coal tar released from its two facilities, both of which are within the CERCLA Site, or facility; and second, as the owner or operator, at the time of disposal of hazardous substances, of the two locations within the facility from which coal tar hazardous substances were released.

The evidence linking Berkshire Gas to the specific costs incurred is very strong. Anticipating this action, EPA has segregated the Berkshire related costs over the past 5 years. However, this case is unlike many CERCLA cost recovery actions, where a PRP or Defendant is responsible for all costs incurred. The current situation is complicated in two major respects:

i.) The costs related to NAPL-impacted sediment and soil are a subset of a larger CERCLA removal action, and thus needed to be tracked internally, within the larger cost tracking done by EPA. In that regard, EPA has taken many steps to ensure the costs are accurate. First, EPA employees have a separate billing code for Berkshire Gas costs. Second, prior to that account being used, EPA employees tracked individually their costs that were Berkshire related, to avoid double-counting such costs to GE. Third, since 2003, EPA has directed the U.S. Army Corps of Engineers ("Corps") and its contractor, Weston Solutions ("Weston"), to track accurately all potential costs attributable to Berkshire Gas. See Attachment 7, December 5, 2003 email from Dean Tagliaferro of EPA to U.S. Army Corps of Engineers and Weston Solutions personnel.

EPA and its contractors' tracking of costs includes particular costs for which 100% of the costs are attributable to Berkshire Gas, and other costs for which EPA determined an appropriate percentage of such costs that should be attributable to Berkshire Gas.

In the Decree, the United States recovers its U.S. Enforcement Costs up to a maximum of $35,000, so for purposes of cost recovery, the amount due to the U.S. is $35,000.

7

For example, 100% of the labor and expenses for preparation of NAPL management plans, or the costs associated with sampling NAPL and NAPL contaminated material was attributed to Berkshire Gas, because the 1 Y2 Mile Reach did not include NAPL from GE. On the other hand, EPA attributed 5%) of the costs related to the Transition Draft Final Design and Transition Final Design to Berkshire Gas, in recognition of the relatively small percentage of cost associated with wrifing specifications for the development of a NAPL contingency plan and design specifications for NAPL removal and control.

In negotiations with Berkshire Gas, EPA presented the costs and these considerations. Berkshire Gas agreed with EPA on virtually all the cost figures and allocations. GE, which was also affected by the EPA cost figures and allocations, had no objections to EPA's determinations.

ii.) As noted above, EPA's implementafion of the 1 Y2 Mile Reach Removal Action was subject to a cost-sharing agreement with GE. Under this agreement, all costs incurred by EPA were then identified as such to GE, and GE's overall payment of its share is based on the EPA accounting of its overall costs. In effect, GE has already paid for a portion of the costs that are properly attributable to Berkshire Gas, and accordingly, GE is recouping those costs in the Decree.

4. Ability of Settling Party to Pay:

Throughout negotiations, Berkshire Gas has not raised any issue of inability to pay the costs to be recovered.

5. Litigative Risks in Proceeding to Trial:

In the recently-concluded negotiations, Berkshire Gas raised very few legal issues. We do not see any significant legal impediments if we were to proceed to trial. The biggest downside to proceeding to trial in this action is the fact that we are recovering in this settlement virtually eveiylliing we could hope lo recover after a trial.

Berkshire Gas has not raised any issues about the statute of limitations for its responsibilities for 1 Y2 Mile Reach Removal Action costs. However, if the settlement is not approved, and Berkshire Gas raises such an argument, EPA has a good position on all statute of limitation issues.

Section 113(g)(2)(A) of CERCLA provides that, for initial actions for recovery of Removal Action costs, the action must be commenced within 3 years after completion of the removal acfion, except that such cost recovery action must be brought within 6 years after a determination to grant a waiver under section 104(c)(1)(C) of CERCLA for a continued response action. 42 U.S.C. 9613(g)(2)(A).

First, we are filing this action within three years of the complefion of this removal action. According to EPA's March 2008 Pollution Report for the 1 Y2 Mile Reach Removal Action, the demobilization date was October 19, 2007.

Second, EPA has done two Section 104(c)(1)(C) "consistency waivers," in 2000 and 2005, to increase the cost ceiling on the removal action. We are filing this action within six years of the amended 2005 waiver.

Third, even if Berkshire Gas were to focus exclusively on the consistency waiver granted eight years ago, EPA' responses to that argument are compelling. Initially, at the Site, EPA has identified twenty-seven CERCLA removal actions. However, for statute of limitarions purposes, many courts have treated a series of removal activities as one single removal action. Kelley v. E.I. DuPont De Nemours & Co., 17 F.3''' 836, 843-44 (6" Cir. 1994)(holding that certain emergency removal activities and RI/FS constituted one removal action); United States v. Davis, 882 F. Supp. 1217, 1225-26 (D.R.I. 1995)(asserting that statutory language envisions numerous removal activities constitute removal action); California Dep't of Toxic Substances Control v. Alco Pac. Inc., 308 F. Supp.2d 1124, 1133 (CD. Cal. 2004)(finding numerous removal actions constitute a "single unitary actions for purposes of the statute of limitations").

This issue is similar to those decisions in which a number of removal actions lead up to a final decision for the Site. However, technically, our final action will not be a ROD, but a modificafion of the RCRA corrective action permit, stemming from the dual nature of the Decree, which allowed the existing RCRA corrective action permit, as revised, to continue in place for the "Rest of River," while transferring to CERCLA jurisdiction the remainder of the Site cleanups. Although technically the final decision document will not be a ROD, it will be the substantive equivalent. Specifically, at the Site, the modified RCRA con-ective action pennit will be implemented as a CERCLA remedial action after all permit appeals have been exhausted, and it shall be considered to be "the final remedy selection decision pursuant to Sectton 121 of CERCLA and Section 300.430 of the NCP." Site Decree, Paragraph 22.z.

Despite the strength of support for this argument, Berkshire Gas may argue that at this site, each removal should be treated separately for statute of limitafions purposes. U.S. v. Akzo Nobel Coatings. Inc.. 990 F. Supp. 897, 906-07 (E.D. Mich 1998) supports this concept, noting that the facts of a case determine when a removal action ends. Berkshire Gas could argue that the cost and duration of the 1 Y2 Mile Reach action ($85 million, over 4 years duration) necessitate different treatment than the usual rule. Thus, although we have not heard any concern from Berkshire Gas on this issue, one argument they may raise would be as follows. Section 113(g)(2)(A) requires the action to be commenced within 6 years of invocation of a Section 104(c)(1)(C) waiver. The initial consistency waiver for the 1 Y2 Mile Reach was invoked on November 21, 2000. That being the case, EPA was required to file suit against Berkshire Gas by November 21, 2006 to avoid triggering the statute of limitations.

However, interpreting the consistency waiver statute of limitations to exclude recovery in this instance would be contrary to public policy. The 104(c)(1) waiver is meant to assist the government in providing more time, not less time, for filing claims. So, if we followed Berkshire Gas's interpretation, EPA would be put in the ironic position of having to file suit for all 1 V2 Mile Reach Removal Action costs before such costs had even been incurred. Particularly in a situation where the exemption was designed to assist the government, to have it interpreted to require filing not 3 years after completion, but rather even prior to completion of the action, is not understandable.

-A clear strand of statute of limitations case law is that courts construe the limitafions period in the government's favor to avoid frustrating CERCLA's statutory goals. Kelley notes that broad interpretation is in order when there is statutory ambiguity. 17 F.3d at 843. U.S. v. Manzo articulates the general principle that CERCLA, as a remedial statute, ought to be liberally construed in order to achieve its remedial purposes. 182 F. Supp.2d 385, 401 (D.N.J. 2000). But see U.S. v. Navistar Int'l Transp. Corp.. 152 F.3d 702, 707 (7"" Cir. 1998), in which the court balanced the deference provided to the government in construing ambiguities in statute of limitations with benefits provided by timely filing cost recovery actions.

In summary, if the Decree is not approved, and Berkshire Gas raises a statute of limitations argument, the statutory language could generate discussion, but the U.S. has good rationales for pursuing such costs at this time.

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6. Public Interest Considerations:

This proposed action is significant in two respects. First, the costs to be recovered by EPA from Berkshire Gas will assist the Region in overseeing future Site work, or performing studies or cleanup ourselves. Second, reinforcing EPA's "Polluters Pay" principle, taking this action will demonstrate our desire to recover government costs where possible.

7. Precedential Value:

The Decree will provide EPA with a ready response if GE claims that EPA only looks for the largest party at a Site for recovery. Beyond that, there is little that is precedential in the Decree terms.

8. Value of Obtaining a Present Sum Certain:

As noted below in Nature of Case That Remains After Settlement, EPA is not releasing any claims outside of the 1 I/2 Mile Reach. Moreover, within the 1 Y2 Mile Reach, EPA is providing Berkshire Gas a release for specifically-defined costs. In evaluating the value of the settlement, three categories of costs are relevant:

A. U.S. 1 Y2 Mile Reach Removal Acfion Costs: These costs are defined to include only the costs which EPA has identified to Berkshire Gas as related to past EPA responses to coal tar contamination. Of this set of costs, EPA is recovering 100% of its share of the costs identified, plus interest on its share of costs through March 10, 2008, for a total of $2,699,199. The methodology used is set forth immediately below.

EPA's May 31, 2007 demand letter required payment by Berkshire Gas of $3,820,194, which represented both the EPA and the GE share of costs incurred. In subsequent discussions, Berkshire Gas pointed out one line item of EPA's costs which should have been calculated differentty. Specifically, certain NAPL-impacted sediments and soils also were contaminated with PCBs at levels above 50 parts per million, which are regulated by TSCA. These soils/sediments were disposed of at increased costs at a landfill which accepts TSCA-regulated wastes, as opposed to a non-TSCA landfill at which other soils/sediment contaminated solely with NAPL were disposed. A total of 867 tons of PCB and NAPL-impacted sediment and soil was disposed of at the TSCA landfill, when, had the only contaminant been Berkshire Gas's NAPL, disposal costs at the non-TSCA landfill would have approximately $100,000 less. EPA recognized the validity of Berkshire Gas's argument, and reduced the total cost demanded by $100,000, for a total of $3,720,194. EPA then added to that figure $135,805 as interest from May 31, 2007 to March 10, 2008, for a total of $3,855,999.

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From that figure, EPA calculated 70 percent recovery for EPA and 30 percent recovery for GE, to arrive at the total recovery figures presented in the Consent Decree. The 70%/30%) breakdown is based on the cost-sharing formula for the 1 Y2 Mile Reach Removal Action, which is found in the overall site investigation and cleanup Consent Decree. Seventy percent of $3,855,999 is $2,699,199.

B. U.S. Enforcement Costs: This category of costs includes the costs incurred by EPA and DOJ in pursuing this enforcement action. Decree Para. 3.t In the Decree, Berkshire Gas agreed to pay EPA $35,000 of such costs. As of September 2008, the U.S. Enforcement Costs totaled $41,515, exclusive of U.S. Department of Jusfice Costs.

C. Interest: Under CERCLA, interest accrues from EPA's demand for payment of response costs, which was May 31, 2007. Berkshire Gas raised arguments in the Decree negotiations about the fairness in this case of seeking interest for the entire period until payment. Berkshire Gas pointed to the fact that EPA and Berkshire Gas had a significant information gathering period in 2007 following the EPA demand, and the inevitable delays in structuring the settlement to include GE's claims as well as EPA's. In response, EPA and DOJ agreed to a compromise on interest, but only agreed to compromise interest from March 11, 2008 to August 1, 2008.^ The roughly 9 Y2 months of interest from May 31, 2007 to March 10, 2008 (totaling $135,805) has already been calculated by EPA and incorporated into the $2,699,199 payment figure. Beyond that, we estimate recovery of additional interest of $39,435 for the time period from August 1, 2008 until payment of costs by Berkshire Gas (assuming a payment date of February 1, 2009). Meanwhile, the amount of interest not being recovered based on the agreement not to recover interest from March 11, 2008 to August 1, 2008 amounts to $45,028, based on the following: 143 days of interest; an interest rate of 4.34%o; on a principal of $2,699,199.

Accordingly, pursuant to the Decree, EPA recovers $2,773,634, as follows:

2 Paragraph 103 of the site Consent Decree provides the "sliding scale" cost-sharing formula for the 1 Vi Mile Reach

Removal Action. At Paragraph 103.f, for the increment of costs exceeding $50 million, GE is to pay 30 percent of the costs, and EPA to pay 70 percent. The total costs, exclusive of indirect costs, were approximately $85 million. EPA and GE agreed in the Berkshire Gas settlement discussions that as GE was to pay 30 percent of costs under Paragraph 103.f, GE should recover 30 percent of costs fiom Berkshire Gas. 3

The dates of the interest compromise were chosen as follows: March 10, 2008 was the date upon which Berkshire Gas and EPA reached an agreement in principle in this matter; EPA was not willing to bear the "outside risk" of having interest tolled for an uncertain amount of time, so we agreed to toll interest until Decree lodging or August 1, 2008, whichever came earlier, ensuring that the compromise in this regard would be limited to the $45,028 that would have accrued between March 11, 2008 and August 1, 2008.

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$ 2,699,199 1 1/2 Mile Reach Removal Action Costs $ 35,000 U.S. Enforcement Costs $ 39,435 Interest from August 1, 2008 (approximate, based on esdmated payment date of

February 1,2009)

The total compromise of costs in the Decree amounts to approximately $55,000 ($45,028 in interest foregone between March 11, 2008 and August 1, 2008, and approximately $10,000 in U.S. Enforcement Costs that will exceed the $35,000 recovery limit in the Decree.). We are therefore recovering 98 %> of eligible costs in this settlement.

9. Inequities and other Aggravating Factors:

This settlement does not introduce any inequities. The settlement does address a prior inequity, namely that EPA had long ago pursued GE for its PCB contamination throughout the Site, but EPA had not until this action pursued Berkshire Gas for its contributions to the River contamination.

10. Nature of Case that Remains After Setfiement:

This settlement resolves claims against Berkshire Gas for those specifically-defined costs identified by EPA as being 1 Y2 Mile Reach Removal Action Costs, or U.S. Enforcement Costs. The settlement does not provide Berkshire Gas any release from liability beyond those costs. All other claims remain for the United States, including claims related to additional discoveries, in the 1 V2 Mile Reach or anywhere else at the Site, of hazardous substances such as non-aqueous phase liquids or coal tar from Berkshire Gas that cause EPA to incur response costs.

V. CONCLUSION

The Region recommends that DOJ file with the Court the enclosed Consent Decree. The Decree provides a very high percentage recovery of costs from Berkshire Gas, while retaining all other claims for the U.S. The Decree also allows for placement of $2,773,634 recovered in a Site-specific fund for EPA's use.

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ATTACHMENTS

1. Consent Decree, United States v. The Berkshire Gas Company

2. May 29, 2002 EPA Notice of Liability to Berkshire Gas

3. Map of 1 '/2 Mile Reach

4. May 31, 2007 EPA Demand to Berkshire Gas for Payment of Response Costs

5. June 30, 2004 EPA Report, "Identification of DNAPL Residues Collected in the 1 Y2 Mile Cells During Remediadon of the Housatonic River," by Andrew F. Beliveau ("Beliveau Report").

6. EPA Cost Summary

7. December 5, 2003 email from Dean Tagliaferro, EPA GE-Housatonic Team Leader

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f\TT^c.hiry\fnr 2,

^^'^^^' ' '^ ^ ^ ^ . \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY I ^ W ^ S REGION 1 \^\t^^ 1 CONGRESS STREET, SUITE 1100

'^^^t P f^o -^ i^ BOSTON, MA 02114-2023

URGENT LEGAL MATTER CERTIFIED MAIL; RETURN RECEIPT REQUESTED

Receipt No; 7000 1670 0001 9637 4359

/ n ^ d^^ilOt^

Mr. Robert M. Allessio, President Berkshire Gas Company 115 Cheshire Road Pittsfield, Massachusetts 01201

Re; Nodce of Potendal Liability: GE-Pittsfield/Housatonic River Site, Pittsfield, Massachusetts.

Dear Mr. Allessio:

This letter serves to formally nodfy the Berkshire Gas Company ("Berkshire Gas") of the potendal liability that it has or may have incurred with respect to releases and/or threats of releases at and/or from a portion of the GE-Pittsfield/Housatonic River Site (the "Site"), known as the 11/2 Mile Reach of the Housatonic River, located in Pittsfield, Massachusetts. In addition, this letter requests that Berkshire Gas prepare to reimburse EPA for costs that it has and will incur in connecdon with releases and/or threats of releases at and/or from the 1 Vi Mile Reach.

NOTICE OF POTENTIAL LIABILITY

As you may know, the U.S. Environmental Protecdon Agency ("EPA") has documented the release or threatened release of hazardous substances, pollutants, or contaminants in the 1 Vi Mile Reach portion of the Site. (The 1 '/a Mile Reach consists of the East Branch of the Housatonic River, between Lyman Street and the confluence with the river's West Branch, in Pittsfield, Massachusetts.) These releases and threatened releases are documented, in part, in an Acdon Memorandum that EPA issued on November 21,2000 (the "Acdon Memorandum"), in a document dtled Engineering Evaluation/Cost Analysis for the Upper Reach of the Housatonic River, dated February 11, 2000 (the "EE/CA"), and in a document ixiltd Addendum to the Engineering Evaluation/Cost Analysis for the Upper Reach of the Housatonic River, dated

CERCLA Notice Letter: Berkshire Gas Company Page 2

October 4, 2002. Pursuant to the Acdon Memorandum, EPA determined that it would conduct a removal acdon in the 1 Vi Mile Reach, known as the 1 '/2 Mile Reach Removal Acdon. EPA has spent and intends on spending public funds on actions to investigate and control the releases or threatened releases in the 1 y Mile Reach pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C; §§ 9601 et seci. (CERCLA).

Under Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and other laws, responsible parties may be liable for all costs incurred by the government in responding to any release or threatened release. Such costs may include, but are not limited to, expenditures for investigation, planning, clean-up response, and enforcement activities. In addition, responsible parties may be required to pay damages for injury to, destruction of, or loss of natural resources, including the costs to assess such damages.

Responsible parties under CERCLA include persons who are current or former owners and/or operators of a site, persons who arranged for disposal of hazardous substances at a site, or persons who accepted hazardous substances for transport to a site selected by such persons.

EPA has evaluated a large body of evidence in connection with its investigation of the 1 Vi Mile Reach. This evidence includes, without limitation, the following:

1. The presence of free-phase oil and tar globules having a coal tar odor in sediment samples EPA collected in the portion of the 1 VT. Mile Reach south of the Elm Street bridge and north of the Dawes Avenue bridge.

2. The presence of polynuclear aromatic hydrocarbons ("PAHs") in sediment and riverbank samples EPA collected in the 1 Vi Mile Reach near Deming Street, and in a sediment sample containing non-aqueous phase liquid ("NAPL") that EPA collected on June 1, 2002 in the River adjacent to Deming Street. The PAHs detected in these samples are consistent with PAHs typically fouiid at manufactured gas plant sites. \

3. The conclusion of a report prepared by ENSR International titled Phase-I Initial Site Investigation and Immediate Response Action Status Report #2, dated May 2001, that contamination from a manufactured gas plant was observed in properties near Deming Street and that free-phase oil, identified as coal tar, was observed in a parcel on or near the riverbanks of the Housatonic River in the 1 Vi Mile Reach. (See pgs. 22-23.)

4. The PAHs detected in riverbank and sediment samples collected by EPA between Elm Street and Dawes Avenue (adjacent to Deming Street) are consistent with the PAHs detected in samples collected by ENSR at the Pittsfield Coal Gas Company's former manufactured gas plant facility located on Deming Street.

5. Public records indicate that the Pittsfield Coal Gas Company owned and operated a coal

CERCLA Notice Letter: Berkshire Gas Company Pages

gasification facility at a number of parcels at or near Deming Street. In 1954, the Pittsfield Coal Gas Company reorganized under the new name of the Berkshire Gas Company.

Based upon this evidence, EPA has information indicating that you are a potentially responsible party ("PRP") with respect to the releases and/or threats of releases at and/or from the 1 Y2 Mile Reach portion of the Site.

By this letter, EPA notifies you of your potential liability with regard to this matter. EPA also encourages you, as a PRP, to prepare to reimburse EPA for the costs that EPA has and will incur in connection with the releases and/or threats of releases at and/or from the 1 V2 Mile Reach portion of the Site.

RESPONSE ACTIVITIES AT THE SITE

EPA has already conducted sampling of river sediments and riverbank soils in the 1 V2 Mile Reach and has selected the Removal Action, as described in the Action Memorandum. EPA has completed a design for Phase I of the Removal Action, which is located from Lyman Street (the beginning of the 1 Vi Mile Reach) to Transect 92, which is located just upstream of the Elm Street bridge. EPA anticipates that it will commence Phase I of the Removal Action in the summer of this year. In April 2002, EPA collected additional samples from the riverbank along and downstream of Deming Street. EPA notified the Berkshire Gas Company of such sampling in a letter dated March 21, 2002. Representatives of Berkshire gas were present during the sampling and collected split samples. EPA will provide Berkshire Gas Company with the analytical results after the data undergoes quality assurance/quality control procedures and the data is validated. EPA staff also met with Berkshire Gas representatives on April 30, 2002 to discuss contamination originating from Berkshire Gas operations.

Phase n of the Removal Acdon is located from Transect 92 to Transect 168, which is located between the Dawes Avenue Bridge and the Pomeroy Avenue Bridge. Phase n includes the area abutting Deming Street. EPA is currently designing the removal actions for Phase n, and EPA anticipates that it will commence implementation of Phase TT following completion of Phase t. EPA's Removal Action is described in more detail in EPA's Action Memorandum (available on the Internet at http://www.epa.gov/region01/ge/thesite/landhalfmile-reports.html) and in the EE/CA, which EPA forwarded to Mr. Richard Nasman, of Berkshire Gas, under cover letter dated July 31,2000. In addition to the activities enumerated above, EPA may, pursuant to its authorities under CERCLA and other laws, decide that other studies or clean-up activities are necessary to protect public health, welfare or the environment.

http://www.epa.gov/region01/ge/thesite/landhalfmile-reports.html


ADMINISTRATIVE RECORD

In accordance with Section 113(k) of CERCLA, EPA must establish an administrative record containing the documents used by EPA to select the appropriate response action for the 1 V2 Mile Reach. This administrative record is available to the public for inspection and comment at:

EPA Records Center 1 Congress Street Boston, MA 02114-2023 Telephone No: 617-918-1440

Please call the EPA Records Center for current hours and directions.

This Administrative Record should also be available at:

The Berkshire Athenaeum Public Library Reference Department 1 Wendell Avenue Pittsfield, MA Telephone Number: 413-499-9488

TIMING AND FORM OF RESPONSE TO THIS LETTER

As a PRP, you should notify EPA in writing, within 45 calendar days from the date of this letter, of your willingness to reimburse EPA's response costs described in this letter. Your response should indicate the appropriate name, address, and telephone number for further contact with Berkshire Gas.

V

We are aware that the Massachusetts Department of Environmental Protection ("MADEP") issued to the Berkshire Gas Company a Notice of Responsibility and Notice of Response Action dated May 5, 2000 (RTN#1-13419). We understand that the Berkshire Gas Company has taken response actions pursuant to such notice. This letter does not supersede or override requirements under any state laws or regulations, and does not affect any activities required by the MADEP. If you are involved in other discussions or actions regarding releases at or from the 1 V2 Mile Reach portion of the Site or at or from the Deming Street properties, you should continue such activities as you see fit. This letter is not intended to advise you or direct you with respect to any activities conducted pursuant to the MADEP Notice of Responsibility or with respect to any other activities related to releases or threats of releases at or from the Deming Street properties. EPA requests that you report the status of all such activities in your response to this letter.


Your response letter should be sent to:

Dean Tagliaferro, On-Scene Coodinator U.S. Environmental Protection Agency Office of Site Remediation and Restoration 1 Congress Street, Suite 1100 (Mail Code HBT) Boston, MA 02114-2023

Enclosed for your information is a sheet regarding the rights Berkshire Gas may have as a small business to receive compliance assistance and to comment on enforcement activities pursuant to the Small Business Regulatory Enforcement Fairness Act ("SBREFA").

If you have technical questions regarding the 1 V2 Mile Reach Removal Action or this notice letter, please contact Mr. Dean Tagliaferro, On-Scene Coordinator at 617-918-1282. Your attorney should direct his or her questions to Mr. John Kilbom of the EPA Office of Environmental Stewardship at 617-918-1893.

The factual and legal discussions in this letter are intended solely to provide notice and information, and such discussions are not to be construed as a final agency position on any matter set forth herein; Due to the seriousness of the environmental and legal problems posed by conditions at the 1 V2 Mile Reach, EPA urges that immediate attention and a prompt response be given to this letter.

Sincerely,

itriciakt,. Meaney, Director Office of Site Remediation and Restoration

Enclosure

cc: J Kilbom, EPA Office of Environmental Stewardship l/D. Tagliaferro, EPA On-Scene Coordinator

B. Olson, EPA, Pittsfield Site Team Leader B. Marshall, Chief, EPA Search & Cost Recovery Section B. Harper, Office of Massachusetts Attorney General R. Bell, MADEP A. Weinberg, MADEP J. Lyn Cuder, MADEP S. Steenstrup, MADEP (two copies) R. Nasman, Berkshire Gas


M. McHugh (Berkshire Gas Counsel at Rich May, P.C.) D. Young, EOEA, K. Finkelstein, DOI, A. Raddant, NOAA Roderick McLaren, General Electric Company Holly Inglis, EPA Records Center EPA Site Repositories

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(\rria\i^^^r i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

New England Office - Region I One Congress Street, Suite 1100

Boston, Massachusetts 02114-2023

VIA FEDERAL EXPRESS NEXT DAY DELIVERY

May 31, 2007

Karen L. Zink, President and Chief Operating Officer Berkshire Gas Company 115 Cheshire Road Pittsfield, MA 01201

Re: Demand for Reimbursement of Costs Expended at 1.5 Mile Reach Removal Action, GE-Pittsfield/Housatonic River Site in Pittsfield, Massachusetts

Dear Ms. Zink:

On May 29, 2002, the United States Environmental Protection Agency ("EPA") contacted Berkshire Gas Company ("Berkshire Gas") regarding activities coimected with the GE-Pittsfield/Housatonic River Site ("the Site"). In EPA's May 29, 2002 letter (which is attached), EPA informed Berkshire Gas that it may be liable for money expended by EPA for response actions at this Site under the Comprehensive Environmental Response; Compensation, and Liability Act of 1980, as amended ("CERCLA"), commonly known as the federal Superfund law. In that cortespondence, EPA also provided Berkshire Gas with a fact sheet regarding the rights small businesses have to receive compliance assistance and to comment on enforcement activities pursuant to the Small Business Regulatory Enforcement Fairness Act ("SBREFA").

Explanation of Potential Liability

Under Section 107(a) of CERCLA, potentially responsible parties, or "PRPs", may be held liable for all costs incurred by the EPA (including interest) in responding to any release or threatened release of hazardous substances at the Site, unless the PRP can show divisibility or any of the other statutory defenses. PRPs include current and former owners and operators of the Site, as well as persons who arranged for treatment and/or disposal of any hazardous substances found at the Site, and persons who accepted hazardous substances for transport and selected the site to which the hazardous substances were delivered.

Site cleanup activities are being undertaken pursuant to a federal Consent Decree entered on October 27, 2000 in U.S. District Court ("Decree"). Pursuant to the Decree, EPA requires the General Electric Company ("GE") to perform and pay for over 25 separate response actions regarding PCB contamination at the Site. At one additional response action at the Site - the 1.5

Mile Reach Removal Action - EPA has been performing the response action pursuant to a cost-sharing agreement with GE.

In EPA's May 29, 2002 Notice of Potendal Liability to Berkshire Gas, EPA identified evidence that contaminants generated by Berkshire Gas were disposed in the 1.5 Mile Reach. That being the case, in that letter, EPA notified Berkshire Gas that EPA has information indicating that Berkshire Gas is a potentially responsible party with respect to the releases and/or threats of releases of hazardous substances at and/or from the 1.5 Mile Reach portion of the Site.

Since that letter was issued, EPA has performed remediation activities in the 1.5 Mile Reach. In performing such activities, EPA discovered non-aqueous phase liquids ("NAPL") on numerous occasions. Each occurrence of NAPL caused EPA to incur additional response costs to address the NAPL. In each occurrence, the NAPL was comprised of substances that make up coal tar. EPA evidence demonstrates that the NAPL for which costs were incurred in the 1.5 Mile Reach was generated by Berkshire Gas or its predecessors.

To date, EPA has encountered NAPL on ten separate occasions in performing the 1.5 Mile Reach, and in total, EPA excavated nearly 7,000 cubic yards of NAPL-impacted sediment and soil. In addition, EPA has excavated approximately 32 cubic yards of bank soil solely because of contamination associated with manufactured gas plant waste.

Demand for Reimbursement of Costs

In accordance with Section 104 of CERCLA, EPA has already taken certain response actions, including those which are listed above, and incurred certain costs in response to conditions at the Site. EPA is seeking to recover from Berkshire Gas the EPA response costs related to waste material generated by Berkshire Gas or its predecessors and all the interest authorized to be recovered under Section 107(a) of CERCLA.

In particular, the EPA costs incurred to respond to the discoveries of NAPL in the 1.5 Mile Reach include the following:

-costs incurred during remediation are $3,820,194; this subset of costs is subject to change based on additional EPA labor costs and "trailing" costs from this time period; and

-all costs, including but not limited to enforcement costs, that EPA is continuing to incur related to Berkshire Gas's contamination in the 1.5 Mile Reach. At present, this demand for reimbursement does not include demand for any EPA costs incurred on response actions other than the 1.5 Mile Reach Removal Action.

Under Section 107(a) of CERCLA, EPA hereby makes a demand for payment from you for the above amounts plus all interest authorized to be recovered under Section 107(a). A summary of the pertinent costs, and a rationale for such costs, is enclosed.

In addition, certain of the information related to EPA costs is in documents that have been submitted to EPA by a contractor, Weston Solutions, containing information which has been

2

claimed as confidential business infonnation or otherwise may be entitled to confidential treatment under 40 C.F.R. Part 2. That being the case, limitation on the disclosure of such documents is necessary. Accordingly, prior to disclosure of such information to Berkshire Gas, EPA and Berkshire Gas must execute an agreement regarding the confidentiality of business information submitted to EPA. A copy of such agreement is enclosed for your review. Given the expenditure of costs by GE on the 1.5 Mile Reach Removal Action, GE has indicated it has an interest in the present action. Accordingly, EPA has included GE as a potential signatory to the confidentiality agreement. Please contact Tim Conway at the phone number below if you have questions about the confidentiality agreement.

While this letter demands that Berkshire Gas reimburse EPA for particular costs related to the 1.5 Mile Reach Removal Acdon at the Site, EPA is aware that the financial ability of some PRPs to contribute toward the payment of response costs at a site may be substantially limited. If you believe, and can document, that you fall within this category, please contact Tim Conway at 617-918-1705, or at the EPA address above (mail code SAA) for information on "Ability to Pay Settlements." In response, you will receive a package of information about such settlements and a form to fill out with information about your finances, and you will be asked to submit financial records including federal tax returns. If EPA concludes that Berkshire Gas has a legitimate inability to pay the full amount, EPA may offer a schedule for payment over time or a reduction in the total amount demanded from you.

Some or all of the costs associated with this notice may be covered by curtent or past insurance policies issued to Berkshire Gas or a related entity. Most insurance policies will require that you timely notify your carrier(s) of a claim against you. To evaluate whether you should notify your insurance carrier(s) of this demand, you may wish to review current and past policies, beginning with the date of Berkshire Gas's first contact with the Site, up to the present. Coverage depends on many factors, such as the language of the particular policy and state law.

PRP Response and EPA Contact

Please send a written response to this cost recovery demand, within thirty (30) days of your receipt of this letter, to:

Dean Tagliaferro, Team Leader GE-Housatonic Project US EPA 10 Lyman Street Pittsfield, MA 01201 413-236-0969

If a response from you is not received within thirty (30) days of your receipt of this letter, EPA will assume that you have declined to reimburse the Superfund for the Site expenditures, and pursuant to CERCLA, EPA may pursue civil litigation.

Also, please note that, because EPA has a potential claim against you, you must include EPA as a creditor if you file for bankruptcy. EPA reserves the right to file a proof of claim or an application for reimbursement of administrative expenses.

Resources and Information for Small Businesses

As you may be aware, on January 11, 2002, President Bush signed into law the Superfund Small Business Liability Relief and Brownfields Revitalization Act. This Act contains several exemptions and defenses to CERCLA liability, which we suggest that all parties evaluate. You may obtain a copy of the law via the Internet at http://www.epa.gov/swerosps/bf/sblrbra.htm and review EPA guidances regarding these exemptions at http://www.epa.gov/compliance/resources/ policies/cleanup/superfund.

In addition, if you are a "service station dealer" who accepts used oil for recycling, you may qualify for an exemption from liability under Section 114(c) of CERCLA. EPA guidance regarding this exemption can be found on the Internet at http://www.epa.gov/compliance/ resources/policies/cleanup/superflind. If you believe you may qualify for the exemption, please contact Tim Conway of EPA at the phone number below to request an application/information request specifically designed for service station dealers.

EPA has created a number of helpful resources for small businesses. EPA has established the National Compliance Assistance Clearinghouse as well as Compliance Assistance Centers which offer various forms of resources to small businesses. You may inquire about these resources at www.epa.gov. In addition, the EPA Small Business Ombudsman may be contacted at www.epa.gov/sbo. Finally, also included is a SBREFA fact sheet.

Purpose and Use of This Letter

The factual and legal discussions contained in this letter are intended solely to provide notice and information. Such discussions are not intended to be, and cannot be, relied upon as EPA's final position on any matter set forth herein.

Please give these matters your immediate attention and consider consulting with an attorney. If you have any legal questions regarding this letter, please contact Tim Conway, Senior Enforcement Counsel, at 617-918-1705. For any questions about the Site cleanup activities, please contact Dean Tagliaferro at 413-236-0969. Thank you for your prompt attention to this matter.

Sincerely,

James T. Owens III, Director Office of Site Remediation and Restoration

http://www.epa.gov/swerosps/bf/sblrbra.htm

http://www.epa.gov/compliance/resources/

http://www.epa.gov/compliance/

http://www.epa.gov

http://www.epa.gov/sbo

Enclosures

cc: Richard Nasman, Berkshire Gas Dean Tagliaferro, EPA Tim Conway, EPA Joan Buonopane, EPA Holly Inglis, EPA Rose Howell, EPA Don Frankel, U.S. Department of Justice James Milkey, MA AG Jane Rothchild, MA DEP Susan Steenstrup, MA DEP Susan Peterson, CT DEP John Looney, CT AG Ken Finkelstein, NOAA Ken Munney, DOI Mike Carroll, GE Rod McLaren, GE Mayor James Ruberto, City of Pittsfield Thomas J. Hickey, PEDA

/ Tj( c{im( 7 5

P r i v a l e g e d , Draf t C o n f i d e n t i a l , FOXA Exempt, D e l i b e r a t i v e

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 1

Office of Site Remediation and Restoration 1 Congress Street, Suite 1100, Boston, MA 02114-2023

MEMORANDUM

DATE: June 30, 2 004

SUBJ: Identification of DNAPL Residues Collected in the 1 Vi Mile Cells During Remediation of the Housatonic River

., ^ ^%l^^<r^^tV— FROM: A.F.Beliveau, Environmental Scientist, Technical Assistance Team

TO: Dean Tagliaferro Project Manager John Kilborn EPA Attorney

Introduction: The process for making coal gas (predominantly methane) is a process where coal is heated to a high temperature in an oxygen deficient atmosphere. The heat breaks down the coal to form mostly methane gas and smaller amounts of polynuclear aromatic hydrocarbons (PAHs)and other minor byproducts such as gaseous sulfur and hydrogen cyanide. The coal gasification process uses steam to remove the coal tars from the gas thus a good source of water (from the river) must be at hand for use in making steam and cooling down the coal gas. The coal tars separate from the condensed steam on cooling. The sulfur and cyanides are trapped usually using an iron fillings filter. The coal tars are nominally heavier in density than water and when the aqueous waste stream is run into pits the coal tar sinks and the cooled water can be released over a dam. The coal tar PAHs range from two ringed naphthalene to five ring compounds such as dibenzo(a,h)anthracene depending on the type of coal that is processed. Coal tar PAHs are considerably different from fuel oils as coal tar PAHs contain a much higher percentage of non substituted PAHs and aliphatically substituted PAHs than does #6 fuel oil which are predominantly straight and branched chain hydrocarbons with only a small percentage of PAHs and other lighter aroraatics. The analytical gas chromatographic traces of coal tar PAHs are distinctly different from fuel oils as there is a lack of straight chain hydrocarbon peaks and only aromatic PAH peaks. The 18 PAHs analyzed by most analytical laboratories is only a small portion of the total amount of PAHs, aliphatic substituted PAHs and other aromatics.


In some coal gasification plants a fuel oil similar to #2 fuel oil was carbureted into the coal gas to enrich the BTU content of the gas so that it could be used as a heating fuel. There appears to be no chromatographic evidence of fuel oil petroleum hydrocarbons residues in these DNAPL samples.

Comaparison of DNAPL Results:

During the remediation of sediments in the first half mile of the Housatonic River Remediation Project performed by GE, coal tar PAH oils and dense non-aqueous phase liquid (DNAPL) was discovered in several cells. Samples of the oily DNAPL were collected and analyzed by GE's contract laboratory using GC/MS and were determined to be polynuclear aromatic hydrocarbons(PAHs) consistent with the composition of coal tar residues generated in a coal gasification process found at other coal gasification sites. Fuel oils do not appear to be a significant separate contaminant.

A second occurrence of DNAPL was found in several cells during the EPA lead remediation of the 1 Vi mile river stretch and four samples were collected and analyzed in a similar manner by EPA's contractors using GC/MS for the same 18 PAHs. The analytical methods used by EPA were very similar to those used by GE.

For each of the two data sets, phenanthrene was chosen as the compound to normalize to all other compounds because it was consistently in a high or highest concentration compared to all other PAHs detected. A ratio was calculated for each individual PAH concentration compared to the concentration of phenanthrene. See attached spreadsheet for results. Each sample was evaluated and the PAH/phenanthrene ratios of the first GE set of data were averaged for each individual PAHs. This process was used to normalize the differences in concentration between individual samples. These ratios were considered typical for a coal tar residue.

The EPA sediment/DNAPL set of data from cells within the 1 72 mile stretch of river was evaluated in the same manner. The four sample individual phenanthz'ene/PAH ratios were also averaged.' See attached spreadsheet. The EPA individual PAH ratio averages were qualitatively compared to the GE coal tar residue/PAH averages.

The results show that for most of the PAHs, the pattern ratios of the GE coal tar DNAPL samples are very similar to those of the EPA 1 Vi mile sample PAH pattern ratios. There are a few exceptions such as naphthalene and methyl naphthalene. Both compounds are found in high concentration in some samples but they are both quite volatile and depending on the way each laboratory extracted and concentrated the extract some of the naphthalene and methyl naphthalene could be lost during sample


processing. The different analytical laboratory biases combined with the possible sampling volatile losses and sample handling problems can explain the differences in'the ratios with phenanthrene for both data sets. Several other minor compounds of lower concentration ratios such as dibenzofuran, acenaphthalene and benzo(b)fluoranthene may be different due to their initial concentration in the different coal feed stocks used to produce coal gas and in the coal tar residues. Some PAH comparisons are uncertain due to single sample ratios that appear to be outliers. There are many possible explanations for these outliers but when the actual ratios (not averages of ratios) are compared across the board for both data sets, the ratios appear to be well within a +/-50% difference QC validation criteria EPA would use to evaluate duplicate analysis.

Conclusions: Using the comparison process described above, it is it is my conclusion that the DNAPL attributed to coal tar PAHs found in the GE remediated V2 mile stretch is very similar to the DNAPL PAHs found in the cells of the EPA remediated 1 V2 mile stretch. The origin of the 1 V2 mile DNAPL PAH residues appears to be from a coal gasification process.

Coal Tar Residue Comparisoin

Individual PAH

Naphthalene Memyl-naphthalene Acenaphthene Dibenzofuran Acenaphthalene Fluorene Phenanthrene Anthracene tluotanthene Pyrene Benzo(a)anthracene Chrysene Benzo(b)tluoranthene Benzo(k) tluoranthene Benzo{a)pyrene lndeneo(1,2,3cd)pyrene Benzo(g,ri,)) perylene Dibenzo(a,h)anthracene

HR-JB-DNAPL-2

27,000 30,000 16,000

490 1,700 8,900

35.000 9,400

10,000 21,000

6,600 4,600 4,100 1,300 5,600 1,800 2,400

990

Ratio 1

0.771 0 857 0.457 0.014 0.049 0 254 1 000 0.269 0 286 0 600 0.189 0131 0117 0 037

0.160 0 051 0.069 0.028

HR-13DNAPL-1 1

0 0

7100 570

2500 9000

28000 7900 6500

14000 3500 2700 1900

720 2600

630 690 280

=latio 1

0.000 OOOO 0.254 0.020 0 089 0.321 1.000 0 282 0.232 0.500 0.125 0 096 0.068 0.026 0.093 0.023 0 025 0 0 1 0

HR-G-3-oil-l 1

25100 11700 13600

3460 1780 8390

24600 7400 6530 8630 2880 2650 2030

386 2750 8610 1300

0

=iatio 1

1.020 0.476 0.553 0.141 0.072 0.341

1.000 0.301 0.266 0.351 0 117 0 108 0.083 0.016 0.112 0.350 0.053 0.000

HRDNAPL-1 1

669000 260000

31380 0

175000 124230 248000

66580 86360

249590 34080 62830 35140 47180 64030

0 0

=latic GE

2.598 1.048 0.127 0.000 0.706 0.501 1.000 0.268 0.348 1.006 0.137 0.253 0.142 0 190 0.258 0.000 0.000 0 000

average

1.500 0 790 0.337 0.053 0.230 0.353 1.000 0.280 0.282 0.615 0.142 0.147 0.103 0.067 0.156 0.141 0.049 0.019

11A 1532 1

3600 1800 1000

41 77

500 1800

520 640

1000 320 280 110 160 280 100 120 500

Ratio 1

2.000 1.000 0.556 0.023 0.043 0.278 1.000 0.289 0.356 0.556 0 173 0.156 0.061 0.089 0.156 0 0 5 6 0.067 0.278

3el l1A1510 1

160 386

97 38 97

420 2300

540 900

1100 440 370 260 220 400 110 150 41

Ratio

0.070 0.168 0.042 0.017 0.042 0.183 1.000 0.235 0.391 0.478 0.191

0.161 0.113 0.096 0.174 0.048 0.070 0.018

Cell! 3'1540 Ratio Cell 12A 1000068 Ratio EPA average Comparability outliers

8.5 12 30 1.2 1.8 1.7 76 18 29 48 17

16 5.9 10 15

5.4 7.4 1.5

0.112 0.158 0.395 0.016 0.024

0.022 1.000 0.237 0.382 0.632 0.224

0.211 0.078 0.132 0.197 0.071 0.097 0.020

1500 1000 880

28 30

360 1600 420 590 720 280 260 120 130 250

79 110 23

0 938 0.625 0 550 0.018 0.019 0.225 1.000 0.263 0.369 0.450 0 175 0.156 0.076 0.081 0.156 0.049 0.069 0 0 1 4

0.780 no 0.480 uncertain 0 380 yes 0.018 uncertain 0.032 uncertain 0 227 yes 1 000 0 256 yes 0.375 yes 0.529 yes 0.192 yes 0 171 yes 0.082 uncertain 0 099 yes 0.171 yes 0 056 yes 0.076 yes 0.082 yes

yes yes no

no

no no no

no

no

Attachment 6: Litigation Report and Settlement Analysis

Total Costs Incurred During Remediation

Category Weston lAG 257 USAGE - lAG 257 USAGE - lAG 246 Cross-cutting EPA Labor Original Total Subtraction for TSCA disposal issue (See Section 8.A of Settlement Analysis) Revised Total

Total Costs $3,471,222

$180,990 $1,324

$134,541 $32,117

$3,820,194 $(100,000)

$3,720,194

Report bate: 09/26/2008 Page 1 of 1

IFMS Reconciliation Pending

Itemized Cost Summary

GENERAL ELECTRIC CO., PITTSFIELD. MA SITE ID = 01 67

Enforcement Costs thru 9/23/08

REGIONAL PAYROLL COSTS $27,628.84

EPAINDIRECT COSTS $9,885.59

CORPS OF ENGINEERS, COST RECOVERY TASKS $4,001.25

Total Site Costs; $41,515.68

f -rT/icym//7 7

Dean Tagliaferro To: [email protected], [email protected], l<.c.mitl<[email protected]

12/05/2003 12:10 PM ^^. j ^ ^ n Kilborn/R1/USEPA/US@EPA, Anidy Beliveau/R1/USEPA/US@EPA Subject: Request for (documentation associateid with NAPI_/Berl<sliire Gas

Confidential

EPA will require assistance from Weston and Xhe USAGE to pursue potential cost recover/ against Berksf ire Gas. In order to track all potential costs attributable to Berkshire Gas, please setup new WBSs for support activities associated with the NAPL encountered from Lyman Street to Elm Street. The cost accounting should allow for both field rate and home office personnel to charge to these numbers. Please provide a detailed summary of ail costs associated with the NAPL encountered from Lyman Street to Elm Street. Appropriate backup wilt be required. Note that this cost accounting cannot be finalized until the Cell 13 NAPL is transported off-site for disposal and the invoices paid.

In addition, please obtain and provide the full data packages (for all parameters) and chrornatographs for the for the following samples:

CelM A Sediment-Date collected: 9/30/2002-Sample ID H2-SE001510-0-0000 Cell 11A Sediment-Date collected: 4/28/03-Sample ID H2-SE001532-0-3A28-3740 Celll 2A NAPL-impacted Sediment-Date Collected-07/01/2003-Sample ID: H2-OT000068-0-3L01 Cell! 3 NAPL-impacted sediment-Date collected-10/02/2003-Sample ID: H2-SE001540-0-0050

From the EE/CA

Sample Date: June 1, 2000:—Sample ID: H2-SE001291-0-0015

Note that some of these samples may also have had a "fingerprint" or fuel ID analysis performed as well. Please provide this information with the data package.

Any questions, please call me.

mailto:[email protected]

mailto:[email protected]

SS o S^ fy j S UNITED STATES ENVIRONMENTAL PROTECTION AGENCY \ ^ I W / NEW ENGLAND REGION

% PROi " ^ ^ ^ ^ CONGRESS STREET, BOSTON, MA 02114-2023

PRIVILEGED AND CONFIDENTIAL BY FEDERAL EXPRESS

October 9, 2008

Ronald J. Tenpas, Assistant Attorney General Environmental and Natural Resources Division United States Department of Justice 1425 New York Avenue Washington, D.C. 20044

Re: Referral of CERCLA Litigation Report and Settlement Analysis and Consent Decree: U.S. V. Berkshire Gas, Re: GE-Pittsfield/Housatonic River Site

Dear Mr. Tenpas:

Enclosed please find a proposed Consent Decree under CERCLA Section 107 with The Berkshire Gas Company ("Berkshire Gas") with respect to the GE-Pittsfield/Housatonic River Site, for signature and lodging with the Court. The cost recovery action is related to EPA's performance of a CERCLA removal action at the 1 Y2 Mile Reach of the Housatonic River. Please note that the Consent Decree also includes cost recovery by the General Electric Company ("GE") against Berkshire Gas, because EPA's performance of the 1 Yi Mile Reach Removal Action was pursuant to a cost-sharing agreement with GE, and consequently GE has 1 '/2 Mile Reach costs to recover.

The 1 Yi Mile Reach is one of three river segments, or "reaches", being addressed pursuant to a Consent Decree entered by U.S. District Court on October 27, 2000 (the "Site Consent Decree"). In the Site Consent Decree, GE is required to address polychlorinated biphenyl ("PCB") contamination that originated from GE's Pittsfield, Massachusetts facility, including twenty CERCLA removal actions related to contaminated soil, five response actions at groundwater management areas, and response actions in the three River reaches. GE is to perform and pay for all necessary remediation, except for the 1 Yi Mile Reach

Under the proposed Berkshire Gas Consent Decree, EPA recovers from Berkshire Gas its costs of responding to the non-aqueous phase liquid ("NAPL")-impacted soils and sediments in the 1 Yi Mile Reach. Such NAPL-impacted soils and sediments were contaminated by the operation of a manufactured gas plant by Berkshire Gas and/or its predecessor adjacent to the River. EPA addressed the NAPL-impacted soils and sediments as part of performing the 1 Y2 Mile Reach Removal Action, and GE paid a share of the costs, pursuant to a cost-sharing formula in the Site Consent Decree.

In the Berkshire Gas Decree, EPA recovers $2,773,634. This recovery is 98 percent of the EPA/DOJ response costs related to Berkshire Gas's contamination of the 1 '/2 Mile Reach. The United States' covenants not to sue are limited to the,past 1 Y2 Mile Reach costs.

The enclosed Litigation Report and Settlement Analysis ("Report") provides a description and history of the overall GE-Pittsfield/Housatonic River Site as well as of Berkshire Gas's involvement at the Site. In addition, the Report contains the ten-point settlement analysis specified in the Interim CERCLA Settlement Policy dated December 5, 1984.

Trial Attorney Addie Fiske has been a valuable member of the negotiations team in this action. The EPA regional team members are Joan Buonopane, Cost Recovery Specialist, at 617-918-1227, Tim Conway, Senior Enforcement Counsel, at 617-918-1705, and Dean Tagliaferro, GE-Housatonic Project Team Leader, at 617-918-1282.

Thank you for your time in reviewing this document.

Sincerely,

Robert W. Vamey Regional Administrator

Enclosure

cc: (w/o enclosure) James T. Owens III, Chief, Office of Site Remediation and Restoration Larry Brill, Chief, Remediation and Restoration I Branch Bob Cianciarulo, Chief, Massachusetts Superfund Section Joanna Jerison, Chief, Superfund Legal Office Benjamin Lammie, EPA Office of Site Remediation Enforcement Joan Buonopane Tim Conway Dean Tagliaferro

C Z Z ^