000001 - alaska dec · 000001 amendment no. 2 to poppy lane compliance order by consent (no....

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. .. , . , - ,/* A " 000001 AMENDMENT NO. 2 TO POPPY LANE COMPLIANCE ORDER BY CONSENT (NO. 92-86-23-01-151-01) The Alaska Department of Environmental Conservation, Marathon Oil Company and Union Oil Company of California agree to modify sections VII, IX, X, and XI (a) of the February 24, 199.2 Poppy Lane Compliance Order (No. 92-86-23-01-151-01), as amended on March 2, 1993, as follows: VII. GROUND WATER ASSESSMENT AND R-IATION PLANS ; PERMIT APPLICATIONS. a. Within six (6) months after ADEC's written confirmation of completion of the excavation of contaminated soils, respondents shall submit to the DEC Kenai Area Office Contaminated Sites project manager, a proposed groundwater remediation and assessment plan for complete assessment and cleanup of both contaminated groundwater at the site and contaminated groundwater in adjacent areas. permit applications and permit amendments will be submitted with the remediation plan. Plan modifications shall be handled in All appropriate accordance with Part VIII. The plan, at a minimum, shall include a complete, technically detailed description of proposed methods for:

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Page 1: 000001 - Alaska DEC · 000001 AMENDMENT NO. 2 TO POPPY LANE COMPLIANCE ORDER BY CONSENT (NO. 92-86-23-01-151-01) The Alaska Department of Environmental Conservation, Marathon Oil

. . . , . , - , /* A"

000001

AMENDMENT NO. 2 TO POPPY LANE COMPLIANCE ORDER BY CONSENT

(NO. 92-86-23-01-151-01)

The Alaska Department of Environmental Conservation,

Marathon Oil Company and Union Oil Company of California agree to

modify sections VII, IX, X, and XI (a) of the February 24, 199.2

Poppy Lane Compliance Order (No. 92-86-23-01-151-01), as amended

on March 2, 1993, as follows:

VII. GROUND WATER ASSESSMENT AND R-IATION PLANS ; PERMIT

APPLICATIONS.

a. Within six (6) months after ADEC's written

confirmation of completion of the excavation of contaminated

soils, respondents shall submit to the DEC Kenai Area Office

Contaminated Sites project manager, a proposed groundwater

remediation and assessment plan for complete assessment and

cleanup of both contaminated groundwater at the site and

contaminated groundwater in adjacent areas.

permit applications and permit amendments will be submitted with

the remediation plan. Plan modifications shall be handled in

All appropriate

accordance with Part VIII. The plan, at a minimum, shall include

a complete, technically detailed description of proposed methods

for:

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the remediation of contaminated groundwater

through the creation of artifical wetlands in the

gravel pit area;

assuring quality assurance/quality control for

groundwater sampling and laboratory analysis; and

short term and long term ground water monitoring

of the site. *

The plan shall also identify: existing groundwater

monitoring wells, by location; surface water sampling locations;

and shall include proposed ground and surface water testing and

reporting requirements. Once installed, monitoring wells may not

be removed or otherwise rendered inoperable absent the written

consent of the DEC authorized officer.

IX. -ION OF REWEDIATION.

Respondents shall diligently pursue the approved

plan(s) until cleanup levels are attained. If during the course

of groundwater cleanup, Respondents determine that groundwater

cleanup levels cannot be attained, Respondents shall submit to

the Department a report outlining the reasons why. The report

shall, at a minimum, address the following areas of concern:

1) An engineering report that assesses why the cleanup

levels cannot be achieved.

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2) A risk assessment that addresses the residual levels of

contaminants, and establishes risk based alternative

cleanup levels. The risk assessment must conform to

the requirements as described in Section XI or the most

current departmental Risk Assessment guidance.

3 ) A detailed long term groundwater monitoring plan.

4) Land use restrictions required for future use at the

affected property(s) due to the residual contamination

levels.

The Department shall have 90 days to review the submitted

report and either approve, deny or request modifications and

further information. If the respondents disagree with the

department's action(s), they shall have the right to request

dispute resolution as outlined in Section X.(a) CLEANUP PROGRESS,

below.

x. CLEANlT P PROGRESS.

a. Cleanup operations shall be monitored by DEC to

assure that operations are progressing in a correct and proper

fashion. Any perceived deficiencies shall be immediately brought

to the attention of respondents. If agreement cannot be reached

resolving the alleged deficiencies, then the matter shall be

submitted to a hearing officer. The hearing officer may be an c

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employee of the State, but may not be employed within DEC or the

Department of Law. The decision of the hearing officer shall be

final; the decision may be appealed to the Superior Court under

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Appellate Rule 602. Any fees or costs associated with retention

of the hearing officer shall be borne by the State. i \ b. Reports will be submitted which delineate

activities performed during times of soil and groundwater

remediation.

will not be required.

state when cleanup activities will start again.

shall prepare and submit to DEC the following reports:

-_

During suspension of cleanup activities reports

The last report for a field season must

Respondents

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1. written cleanup progress reports describing the 1

status of groundwater cleanup activities conducted pursuant to an

approved remediation plan at least every ninety (90) days, until

the completion of the groundwater remediation;

2. written cleanup progress reports describing the

status of soil cleanup activities conducted pursuant to an

approved remediation plan at least every thirty (30) days. The

report format will be developed by the DEC and the respondents.

Reports, at a minimum, must contain the following:

I

A. a description of cleanup work performed during the

reporting period;

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Page 5: 000001 - Alaska DEC · 000001 AMENDMENT NO. 2 TO POPPY LANE COMPLIANCE ORDER BY CONSENT (NO. 92-86-23-01-151-01) The Alaska Department of Environmental Conservation, Marathon Oil

B. an estimate of the percentage of soil cleanup

completed and/or the results of the groundwater remediation

program ;

3 . the projected and/or scheduled construction work

for the next reporting period; and

4 . all available laboratory/monitoring data collected

during the reporting period.

XI. CLEANUP LEVELS.

a. The cleanup of any contaminated soil or water will

be deemed complete at the following levels:

1. for water, at a purity level such that the water

I meets or exceeds the applicable primary drinking water standards

for benzene, ethylbenzene, toluene, xylene, nitrate, barium,

cadmium, chromium and lead set out in 18 AAC 80 or in applicable

federal regulatory requirements for Maximum Contaminant Levels

for drinking water. For substances other than TPH which are not

listed above and which are subsequently discovered, cleanup to

appropriate MCL’s or background levels will be required unless an

alternate cleanup level is established pursuant to Part XI,

b. For other substances for which no enforceable

standards currently exist, and the parties cannot come to

agreement regarding appropriate levels, the matter shall be +

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submitted to the hearing officer under Part X above;

2. for soils contaminated with hydrocarbons at a

level such that the following compounds are found in no greater

concentrations than indicated when the.soil is tested under EPA

method 8020:

A. benzene, one-tenth (0.1) mg/kg;

B. total benzene, toluene, ethyl benzene and’xylenes,

ten (10) mg/kg;

3 . for soils contaminated with hydrocarbons at a

level such that the diesel range petroleum hydrocarbons, when the

soil is tested using SW-846 test method 8100 modified, are in no

greater concentration than one hundred (100) mg/kg or can be

statistically shown, by a statistical method approved in writing

by the ADEC, to have an average concentration of less than one

hundred (100) mg/kg with a confidence interval of ninety-five

percent (95%) ;

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4. for soils contaminated with pollutants other than

hydrocarbons, either removal or cleanup to background levels.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

E

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Ron Klein s* 23 Acting Contaminated Sites Program Manager

Marathon Oil Company

Union Oil Company of California

Page 8: 000001 - Alaska DEC · 000001 AMENDMENT NO. 2 TO POPPY LANE COMPLIANCE ORDER BY CONSENT (NO. 92-86-23-01-151-01) The Alaska Department of Environmental Conservation, Marathon Oil

000008 Alaska Region Domestic Pfgduaion

Marathon Oil Company

P.O. Box 1961 68 Anchorage, AK 99519-61 68 Telephone 907/561-5311

May21, 1996

RECEIVED Ron Klein, Acillig Program Manager Alaska Dept. Of Environmental Conservation Division of Spill Prevention and Response Contaminated Sites Remediation Program 555 Cordova Street, 2nd Floor Anchorage, AK 9950 1

MAY 2 2 1996

DEPT. OF ENVIRONMENTAL CONSERVATION

Dear Mr. Klein:

RE: Spill 86-23-01-151-01: Poppy Lane Compliance Order Changes

Enclosed is the original Compliance Order by Consent (COBC) Amendment which has been sign by Marathon and Unocal. As we understand from Don Seagren, the reference to removal of TPH requirements in your letter applies to all groups of hydrocarbons, such as DRO, RRO, and GRO. If this understanding is not correct, please contact us. We anticipate receiving a copy of the COBC with your signature.

The Department’s assistance with these changes has been greatly appreciated. The wetland pilot plot has been constructed, and planting is underway. We look forward to working closely with Don Seagren to restore the gravel pit area. Please contact Stephanie Olson at 564-6372 with any questions.

Sincerely,

TerryL&vacevich Operations Superintendent

cc: Don Seagren, ADEC - Soldotna S. S. Olson M. J. Allen John Beitia, Unocal- Anchorage Todd McGovem, Unocal- Anchorage File Poppy Lane

,

A subsidiary of USX Corporation Environmentally aware for the long run.

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FEB 2 3 1995 DEPT. OF ENVIRONMENTAL CONSERVATION

SCRO

The State of Alaska, Department of Environmental 'onservation (hereinafter "DEC") , and Aman Environmental, Inc., Aman Znvironmental Construction, Inc. and Dan A. Vossler (hereinafter :ollectively referred to as I1Aman1') agree to enter into this settlement agreement.

In March 1994, the State of Alaska, Department of Invironmental Conservation filed a lawsuit against Aman alleging statutory and regulatory violations of Alaska law arising out of the lamage to the treatment cell liner. Alaska Superior Court No. 3AN- 34-2269 CI ("lawsuit").

1. The provisions of this Agreement shall apply to and >e binding on the parties and their successors and assigns.

2. Aman will complete the reconstruction of the Poppy Jane Treatment cell in accordance with the terms of the workplan :onditionally approved by DEC on August 26, 1994.

d Party Confirmation S u

3 . Aman agrees that an independent third-party mvironmental consultant will take all confirmation samples to letermine whether all cleanup levels have been met. This provision ipplies to testing to determine whether soils being treated within :he treatment cell meet cleanup levels as well as testing associated tith closure of the treatment cell site itself.

4 . Upon future closure of the treatment cell, Aman ;hall investigate and remediate any contamination at the treatment ,

:ell site pursuant to the terms of a DEC-approved workplan. The ;cope and extent of this investigation and remediation will be mrsuant to applicable state and federal statutes and regulations.

lelease

5 . DEC agrees that all claims asserted by D,EC in the ibove named civil action shall be dismissed in their entirety, with zejudice, with each party to bear its own costs and attorneys fees. IEC further agrees that it shall, through counsel, execute the ippropriate Stipulation for Dismissal with Prejudice.

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6. For and in consideration of payment of $133,765 by Aman to DEC, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree to unequivocally release and discharge each other, and their respective successors-in-interest, parents, affiliates, assigns, adjusters, insurers, re-insurers, indemnitors, directors, officers, employees, agents, consultants, heirs and predecessors from all actions, causes of action, suits, controversies, claims, and demands of every kind and nature, whether mature or to be mature in the future, whether civil, administrative or criminal (except as limitedbelow), arising in any way out of the matters set forth in the above-named lawsuit, excepting those obligations of Aman expressly described in this Agreement. DEC understands and acknowledges that the settlement reflected herein is the compromise of a disputed claim and that the payment made is not to be construed as admission of liability on the part of Aman, by whom liability is expressly denied. In view of the Alaska Supreme Court case of U t t v. Watkins , 579 P.2d 1065 (Alaska 19781, with which the parties are familiar, it is specifically set forth that it is the intention of Aman and DEC to discharge absolutely all claims and liabilities asserted, or that could have been asserted (whether mature or to be mature in the future, whether civil, administrative or criminal, except as limitedbelow), arising in any way out of the matters set forth in the above-named lawsuit. rhe release of criminal liabilities, however, only applies to the 3ctober 1992 damage to the liner, the subsequent releases, the Eailure to report those releases, and any attempts at covering up the release including destruction of documents. Any contamination not resulting from the October 1992 damage to the liner is not included in the criminal release. The release of criminal Liabilities does not include the future obligation to report any :ontamination identified in the future, regardless of whether the 'ontamination originated from the 1992 liner damage or some other source. DEC acknowledges and assumes all risk, chance, or hazard :hat the damages suffered may be different, or may'become more sxtensive than is now known, anticipated, or expected. Except as xovided in this Agreement, the Parties, by virtue of this release, :ovenant and agree that they will not individually or in concert rith others, or by virtue of other judicial proceedings of any kind thatsoever, make or cause to be made, acquiesce in or assist in the )ringing of any further claims or actions of any kind against each >ther for damages or loss arising out of the matters hereinabove iescribed; m d . bwever , that the State may cooperate as Irovided in public records statutes and other legal requirements ipplicable to the State in providing information and documents to :hird-parties concerning these matters.

;E"LEMENT AGREEMENT AND RELEASE OF CLAIMS

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7. DEC expressly reserves its right to initiate further administrative or legal proceedings for any violation of this Agreement in the event its terms are not fully complied with by Aman. In addition, the State reserves the right to require cleanup of pollution which resulted from any activities associated with any of Amans' operations.

8 . Any party may seek damages or other legal recourse if there is a breach of this agreement. In the event of a material breach of this agreement the nonbreaching party may terminate this agreement and seek any legal or equitable remedy provided by law.

In Witness Whereof, the parties have signed this Settlement Agreement on advice of counsel on the dates set forth below.

/. I / . P5 Date :

SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS

Assistant Attorney General

STATE OF ALASKA BRUCE M. BOTELHO ATTORNEY GENERAL By : 'j . ~ . b ~ - . ? - - - - - .-

/,/Ronald J. !%tcl'ife " Assistant Attorney General I

AMANENVIJ(O"TAL, W .

By : -2&2Lz&- Its: m .

AMAN ENVIRONMENTAL CONSTRUCTION. INC.

By : Its: pes.

PAGE 3

I

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. . . . . .

, John M. Miller, Esq. E I D E & MILLER, P.C. 425 G Street, Suite 930 Anchorage, Alaska 99501 (907) 279-0930

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R E C E I V ~ Q JAN 2 4 1995

EIDE & MI*

00c?01,2

and Dan A. Vossler

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL D I S T R I m AT ANCHORAGE

STATE OF ALASKA, D E P A R W OF ENIIRONMEXW% CONSERVATION,

Plaintiff,

RECEIVED

FEB 2 3 1995

DEPT. OF ENVIRONMENTAL CONSERVATION vs . ) \

AMAN ENVIRONMENTAL, INC., a i SCRO California corporation; AMAN ) ENVIRO”T& CONSTRUCTION, INC . , ) a California corporation; and DANA. VOSSLEX,

I

Defendants. )Case No. 3AN-94-2269 C I

It is stipulated by and between the parties,

through their counsel, that plaintiff, State of Alaska,

Department of Environmental conservation, dismisses with

prejudice the me-entitled case as to all defendants (Aman

Environmntal Inc., Aman Environmental Construction Inc., @

//

Stiprlatim for Dismissal W i t h Prejudice past 1

Page 13: 000001 - Alaska DEC · 000001 AMENDMENT NO. 2 TO POPPY LANE COMPLIANCE ORDER BY CONSENT (NO. 92-86-23-01-151-01) The Alaska Department of Environmental Conservation, Marathon Oil

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and Dan A. Vossler), each party to bear its own costs and

fees.

DATED: / -//--qq EIDE & MILLER Attorneys for Defendants

DATED :

..

BRUCE M. BOTELHO, Attorney General Attornevs for State of _&ska

w Assistant Attorney General

ORDER

IT IS SO ORDERED that the above-entitled case is

dismissed with prejudice, each side to bear its own costs

and fees.

DATE : / 2 . / 9 5 Superior Court Judge

Stipulation for Dismissal With Prejudice ease 2

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000014 RECEIVED 0

: r.i

FEB 2 3 1995 DEPT. OF ENVIRONMENTAL CONSERVATION

SCRO

OF C T n W

The State of Alaska, Department of Environmental Zonservation (hereinafter IIDEC" ) , and Aman Environmental, Inc. , Aman Environmental Construction, Inc. and Dan A. Vossler (hereinafter collectively referred to as "AmanVt) agree to enter into this settlement agreement.

In March 1994, the State of Alaska, Department of Environmental Conservation filed a lawsuit against Aman alleging statutory and regulatory violations of Alaska law arising out of the damage to the treatment cell liner. Alaska Superior Court No. 3AN- 94-2269 CI ("lawsuit").

B O U

1. The provisions of this Agreement shall apply to and be binding on the parties and their successors and assigns.

2 . Aman will complete the reconstruction of the Poppy Lane Treatment cell in accordance with the terms of the workplan conditionally approved by DEC on August 26, 1994.

3 . Aman agrees that an independent third-party environmental consultant will take all confirmation samples to determine whether all cleanup levels have been met. This provision applies to testing to determine whether soils being treated within the treatment cell meet cleanup levels as well as testing associated with closure of the treatment cell site itself.

of the Treatment Cell Site

4 . Upon future closure of the treatment cell, Aman shall investigate and remediate any contamination at the treatment cell site pursuant to the terms of a DEC-approved workplan. The scope and extent of this investigation and remediation will be pursuant to applicable state and federal statutes and regulations.

Release

5 . DEC agrees that all claims asserted by DFC in the above named civil action shall be dismissed in their entirety, with prejudice, with each party to bear its o m costs and attorneys fees- DEC further agrees that it shall, through counsel, execute the appropriate Stipulation for Dismissal with Prejudice.

i

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6. For and in consideration of payment of $133,765 by ?man to DEC, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree to unequivocally release and discharge each other, and their respective successors-in-interest, parents, affiliates, assigns, adjusters, insurers, re-insurers, indemnitors, directors, officers, employees, agents, consultants, heirs and predecessors from all actions, causes of action, suits, controversies, claims, and demands of every kind and nature, whether mature or to be mature in the future, whether civil, administrative or criminal (except as limitedbelow) , arising in any way out of the matters set forth in the above-named lawsuit, excepting those obligations of Aman expressly described in this Agreement. DEC understands and acknowledges that the settlement reflected herein is the compromise of a disputed claim and that the payment made is not to be construed as admission of liability on the part of Aman, by whom liability is expressly denied. In view of the Alaska Supreme Court case of W v. Watkins , 579 P.2d 1065 (Alaska 1978), with which the parties are familiar, it is specifically set forth that it is the intention of Aman and DEC to discharge absolutely all claims and liabilities asserted, or that could have been asserted (whether mature or to be mature in the future, whether civil, administrative or criminal, except as limited below) , arising in any way out of the matters set forth in the above-named lawsuit. The release of criminal liabilities, however, only applies to the 3ctober 1992 damage to the liner, the subsequent releases, the failure to report those releases, and any attempts at covering up the release including destruction of documents. Any contamination not resulting from the October 1992 damage to the liner is not included in the criminal release. The release of criminal liabilities does not include the future obligation to report any eontamination identified in the future, regardless of whether the eontamination originated from the 1992 liner damage or some other source. DEC acknowledges and a,ssumes all risk, chance, or hazard that the damages suffered may be different, or may become more extensive than is now known, anticipated, or expected. Except as provided in this Agreement, the Parties, by virtue of this release, zovenant and agree that they will not individually or in concert Mith others, or by virtue of other judicial proceedings of any kind Mhatsoever, make or cause to be made, acquiesce in or assist in the bringing of any further claims or actions of any kind against each Dther for damages or loss arising out of the matters hereinabove iescribed; provided. however , that the State may cooperate as provided in public records statutes and other legal requirements spplicable to the State in providing information and documents to third-parties concerning these matters.

SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS PAGE i

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7. DEC expressly reserves its right to initiate further administrative or legal proceedings for any violation of this Agreement in the event its terms are not fully complied with by Aman. In addition, the State reserves the right to require cleanup of pollution which resulted from any activities associated with any of Amans' operations.

Non-Performance (Breaa

8. Any party may seek damages or other legal recourse if there is a breach of this agreement. In the event of a material breach of this agreement the nonbreaching party may terminate this agreement and seek any legal or equitable remedy provided by law.

In Witness Whereof, the parties have signed this Settlement Agreement on advice of counsel on the dates set forth below.

BRUC

late : /-A3 -75

Assistant Attorney General

STATE OF ALASKA BRUCE M. BOTELHO ATTORNEY GENERAL

" Assistant Attorney General i

AMAN ENVIBONMENTAL, mC.

AMAN ENVIRONMENTAL CONSTRUCTION, INC . A

By : Its: /Pes.

c:\wpdocs\bct\aman\amanS.aot

;ETTLEMENT AGREEMENT AND RELEASE OF CLAIMS PAGE 3

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R E c E I v f ~ 000017 John M. Miller, Esq . EIDE & MILLER, P.C. 425 G Street, Suite 930 Anchorage, Alaska 99501 (907) 279-0930

Attomevs for Defendants --. .

JAN 2 4 1995

EIDE & MILLER

: '.

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT AT ANCHORAGE

STATE OF ALASKA, DEPARTMENT 1 RECEIVED OF ENVIRONMENTAL CONSERVATION, 1

)

)

) AMAN ENVIRONMENTAL, INC., a ) California corporation; AMAN ) ENVIR0"TAL CONSTRUCI'ION, INC. , ) a California corporation; and ) DANA. VOSSLER, )

)

Plaintiff, 1 FEB 2 3 1995

vs . ) DEPT. OF ENVIRONMEDJTAL CONSERVATION SCRO

Defendants . )Case No. 3AN-94-2269 CI

ION FOR D I S M W PREJUDICE

It is stipulated by and between the parties,

through their counsel, that plaintiff, State of Alaska,

Department of Environmental Conservation, dismisses with

prejudice the ahve-entitled case as to all defendants (Aman

Environmental Inc., Aman Enviromntal Construction Inc.,

// c

Stipulation for Dismissal With Prejudice Page 1

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1 , rd 000011

and Dan A. Vossler), each party to bear its own costs and

fees .

DATED: / - / l - ? L J EIDE & MILLER Attorneys for Defendants

A ..

DATED: I/[ BRUCE M. BOTELHO, Attorney General

Assistant Attorney General

ORDER

IT IS SO ORDERED that the above-entitled case is

dismissed with prejudice, each side to bear its own costs

and fees.

Stipulation for Dismissal With Prejudice pa@ 2

Superior C o u r t Judge

Page 19: 000001 - Alaska DEC · 000001 AMENDMENT NO. 2 TO POPPY LANE COMPLIANCE ORDER BY CONSENT (NO. 92-86-23-01-151-01) The Alaska Department of Environmental Conservation, Marathon Oil

DEPT. OF ENVIRONMENTAL CONSERVATION i SOUTHCENTRAL REGIONAL OFFICE Telephone: (907) 563-6529 3601 C Street, Suite 1334 Fax: (907) 273-4331 Anchorage, AK 99503

*)

February 23, 1993 -

Bradley G. Penn Marathon Oil Company PO Box 1901 68 Anchorage, AK 9951 9

BEf;Ai’gTdmn OF Subject: Poppy Lane Compliance Order, COBC #: 92-86-23-01 - + & ~ ~ N ~ & E ~ & C;@$?;EQgtAn?

SC’ Dear Mr. Penn:

The Department proposes to modify section XIII, paragraph b of the February 24, 1992 Poppy Lane Compliance Order by Consent to provide for quarterly billing. We believe that quarterly billing will be more cost effective for all parties.

The revision can be made by amending the third sentence in Xlll b. as follows:

DEC’s authorized officer shall submit an itemized billing to respondents on OR BEFORE the V THIRTIETH (30TH) day of the month FOLLOWING THE @UARTERS ENDING DECEMBER 31, MARCH 31, JUNE 30, AND SEPTEMBER 30 during which the oversight work was performed or incidental costs incurred.

Please have the authorized representatives sign below if agreeable and return to Ron Klein at the above address. Please contact Ron Klein at 563-6529, if you have any questions.

Sincerely,

/2&& vend Brandt-Erichsen

Regional Administrator

Approved:

Approved:

Dated: 312 /9 3

cc: Breck Tostevin, AGO Les Buchholz, KDO Ron Klein, SCRO

Marathon Oil ConJbany

w & p w un6cal oil Corporation

RSK:el lSCROIRKWL.QRT

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STATE OF ALASKA

DEPARTMENT OF ENVIRONMENTAL CONS

STATE OF ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION,

Complainant,

vs . j RECEIVED 1 Department of LCVJ 1

MARATHON OIL COMPANY and UNION OIL COMPANY OF CALIFORNIA,

1 Respondents. ) OfEiCe of the Attorney G d

Anchorage Branch Anchcrage, Alaska

Compliance Order No. 92- 56-23-01-151-01

COMPLIANCE ORDER BY CONSENT AND AGREEMENT SETTLING LIABILITY

The State of Alaska einafter ItStatel1), through its

Departments of Environmental rvation (hereinafter "DECtt) and

Law, and Marathon Oil Co ny and Union oil Company of California,

(hereinafter tlresponde

and therefore agree as follows:

I. OWNERS.

Respondents he so-called Poppy Lane gravel pit,

having purchased it in January, 1965. Respondent Union Oil

company of California managed the property from January, 1965,

until approximately September, 1987.

11. SITE.

The Poppy Lane gravel pit is located approximately five

(5) miles south - southeast of Kenai, Alaska. The site contains

eighty ( 8 0 ) acres, the northern portion of which was exdavated by

respondent Union Oil Company of California as a gravel pit. The

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legal description of the site is the West one-half of the

Southwest one-quarter of Section 27, Township 5 North, Range 11

West, Seward Meridian (hereinafter "the site"). In 1987, the

respondents erected a fence around the North, East and West sides

of the pit.

111. USE OF THE PROPERTY.

a. The site was purchased by respondents in January

1965. It is believed that a portion of the site had been used fo r

gravel extraction prior to the date of purchase and that a portion

of the site had been used as a trash dump prior to the date of

purchase. After purchase by respondents, the site was

periodically used as a source of gravel for projects in the Kenai

Gas Field and was used by Union Oil Company of California as a

discharge area for refuse and other wastes from the Kenai Gas

Field at least as early as 1967. The State alleges that this

industrial refuse and other waste constitute ttpollutionp8 as

defined at AS 46.03.900(19). The site was also utilized by Union

Oil Company of California and apparently certain members of the

public without respondents' consent, as a general llhousehold

trash" dump, and such trash also, the State alleges, constitutes

pollution under AS 46.03.900(19).

b. The discharges described in this Part entered into

or upon the waters, including groundwaters, and surface and

subsurface lands of the State of Alaska.

c

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IV. ALLEGED VIOLATIONS.

a. The State alleges that respondents did not obtain

required permits or other authorizations from DEC, or any other

state of Alaska governmental agency or local agency of government

for the discharges described in Part 111. Respondents allege that

permits were obtained with the concurrence of State agencies for

some activities, that authorizations were granted by the DEC for

some activities and that no permits or authorizations were

required for some activities.

b. The State alleges that the discharges without a

permit or other authorization constitute violations of AS

46.03.100 (need for waste disposal permit), AS 46.03.296

(unlawful to dispose of hazardous wastes), AS 46.03.302 (need for

hazardous waste permit), AS 46.03.305 (required hazardous wastes

reports and manifests), AS 46.03.308 (requirements for

transportation of hazardous wastes), AS 46.03.710 (pollution

prohibited), AS 46.03.740 (oil pollution prohibited), AS 46.03.745

(hazardous substance release prohibited), AS 46.03.755 (oil

discharge reporting requirement), AS 46.03.760 (violation of DEC

regulations prohibited), AS 46.03.800 (water nuisances

prohibited), AS 46.03.810 (air and land nuisances prohibited), AS

46.03.822 (strict liability for discharge of hazardous substances)

AS 46.04 . 020 (immediate removal of oil discharges required) , AS

46.06.080 (littering prohibited), AS 46.09.010 (hazardous

substance release reporting), AS 46.09.020 (contaipment and

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cleanup of hazardous substance release), and associated DEC

regulations. Respondents deny the State's allegations.

V. PRIOR ORDERS.

a. On December 13, 1985, respondent Union Oil Company of

California and DEC entered into a *'Compliance Order By Consent And

Agreement Settling Liability Of EnvironmentalViolationsit. To the

extent any obligations remain unfulfilled by Union Oil Company of

California under that "Compliance Order By Consent And Agreement

Settling Liability Of Environmental Violations,*t said obligations

are superseded by the terms of this Compliance Order By Consent

(hereinafter termed "COBCtt) between DEC and the respondents.

b. To date, respondents have completed a soil and

groundwater assessment. Included in that work is a report

prepared by respondent Marathon Oil Company entitled Groundwater 1 Assessment Plan - PODDV Lane Gravel Pit (May 1988); a report

prepared by respondent Marathon Oil Company entitled Groundwater

Assessment ReDort - PODDY Lane Gravel Pit (April 1989); and a

report prepared by respondent Marathon Oil Company and Union Oil

Company of California entitled PODDY Lane Gravel Pit Phase I1

Soils ReDort Site Investiuation and Assessment (March 22, 1988)

and other reports submitted after 1989.

VI. SOIL ASSESSMENT AND REMEDIATION PLANS; PERMIT

APPLICATIONS.

a. Respondents have submitted to DEC a proposed soil

remediation plan. Respondents shall submit in a timely mpnner all

permits required to execute approved remediation plans at the site t

4

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and contaminated adjacent areas. DEC will have until 30 days

after the effective date of this COBC to respond to respondent’s

modified work plan. Plan modifications shall otherwise be handled

in accordance with Part VIII. The plan as a minimum shall include

a complete, technically detailed description of proposed methods

for:

1. the on site treatment of contaminated soils, or if

on site treatment is not possible, then the removal/excavation of

contaminated soils;

2.

3 .

4 . the sampling of soils, including in situ and post

the transportation of contaminated soils;

the storage and segregation of excavated soils;

treatment soil sampling;

5.

6.

the treatment of contaminated soils;

assuring quality assurance/quality control far SO11

sampling and laboratory analysis; and

7. the return of treated soils, which satisfy cleanup

levels, to the site (if desired).

b. Plans for additional site assessment will be submitted if

contaminants not addressed in the COBC are discovered or if

additional areas of contamination are discovered. Site assessment

plans will be submitted in accordance with Part VIII.

VII. GROUNDWATER ASSESSMENT AND REMEDIATION PLANS: PERMIT

APPLICATIONS.

a. Within three (3) months after ADEC;s concfirmation

of completion of the excavation of contaminated soils, respondents

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shall submit to the DEC authorized officer a proposed groundwater

remediation and assessment plan for complete assessment and

cleanup of both contaminated groundwater at the site and

contaminated groundwater in adjacent areas. All appropriate

permit applications and permit amendments will be submitted with

the remediation plan. Plan modifications shall be handled in

accordance with Part VIII. The plan, as a minimum, shall include

a complete, technically detailed description of proposed methods

for:

1.

2.

3. sampling of contaminated groundwater after

the recovery of contaminated groundwater;

the treatment of contaminated groundwater;

treatment;

4. assuring quality assurance/quality control for i

groundwater sampling and laboratory analysis;

5.

6 .

the discharge of the treated groundwater; and

short term and long term ground water monitoring of

the site.

b. The plan shall also identify existing groundwater

monitoring wells, by location, and shall include proposed testing

and reporting requirements for the wells. Once installed, monitoring wells may not be removed or otherwise rendered

inoperable absent the written consent of the DEC authorized

officer .

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VIII. DEC PLAN APPROVAL; PERMIT APPROVAL.

a. The procedures herein -- described for approval, modification, and rejection of a remediation or assessment plan -- shall apply to all subsequently proposed or modified plans.

1. By written notice within sixty (60) days of DEC's

receipt of a plan, DEC shall issue a written decision approving,

approving with modifications, or rejecting the plan. Prior to the

written decision DEC may, but is not required to, call for public

comment on the plan and/or hold public hearings on the plan.

Within a reasonable time thereafter in light of the content of the

DEC decision, but in no event more than 60 days thereafter,

respondents shall modify the plan to address DEC's concerns and

submit it for approval as modified. Any modified plan shall also

be the subject of written DEC decision. The determination as to

whether or not a modified plan, as resubmitted, conforms with

DEC's comments will be made solely by DEC; provided, however, that

respondents may seek judicial review under Appellate Rule 601 et

seu. of the DEC decision if DEC seeks to impose conditions beyond

its legal authority. Upon receipt of DEC's written final approval

of a remediation plan, respondents shall begin implementation of

the plan as soon as reasonably practicable but in no event later

than date set out in DEC's decision unless the decision is stayed

by a court order.

2. Once a plan is approved, respondents'

implementation of it will be controlled by the provision2 thereof.

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3. Once a plan is approved, the terms of the plan

shall constitute a part of this Compliance Order By Consent and

shall be enforceable as a part thereof.

b. Permit applications shall be treated under DEC

permit regulations. DEC shall promptly process all permits

necessary to implement an approved remediation plan.

c. DEC reserves the right to require additional site

assessment.

IX. COMPLETION OF REMEDIATION.

Respondents shall diligently pursue the approved plan(s)

until cleanup levels are attained or in the case of approved

groundwater remediation plan(s) until the Department determines

that groundwater cleanup levels cannot be reasonably obtained with

the best available technology (BAT). If during the course of 3 groundwater cleanup, Respondents determine that groundwater

cleanup levels cannot be attained with BAT, Respondents may submit

to the Department a report outlining the reasons why the BAT

cannot achieve the cleanup levels. The report shall, at a

minimum, address the following areas of concern:

1) An engineering report that assesses why the BAT cannot

achieve the cleanup levels.

2) A risk assessment that addresses the residual levels of

contaminants. The risk assessment must conform to the

requirements as described in Section XI.

3) Whether or not long term monitoring is require$ for the

site and if required, a detailed monitoring plan. !

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4 ) Land use restrictions required for future use at the

affected property(s) due to the residual contamination levels.

The Department shall have 90 days to review the submitted

report and either approve, deny or request modifications and

further information. If the respondents disagree with the

department’s action(s), they shall have the right to request

dispute resolution as outlined in Section X.(a) CLEANUP PROGRESS,

below.

X. CLEANUP PROGRESS.

a. Cleanup operations shall be monitored by DEC to

assure that operations are progressing in a correct and proper

fashion. Any perceived deficiencies shall be immediately brought

to the attention of respondents. If agreement cannot be reached

resolving the alleged deficiencies, then the matter shall be

submitted to a hearing officer. The hearing officer may be an

employee of the State, but may not be employed within DEC or the

Department of Law. The decision of the hearing officer shall be

final; the decision may be appealed to the Superior Court under

Appellate Rule 6 0 2 . Any fees or costs associated with retention

of the hearing officer shall be borne by the State.

b. Reports will be submitted which delineate activities

performed during times of soil and groundwater remediation.

During suspension of cleanup activities reports will not be

required. The last report for a field season must state when

cleanup activities will start again. Respondents shaJl prepare

and submit to DEC the following reports:

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1. written cleanup progress reports describing the 9 status of groundwater cleanup activities conducted pursuant to an

approved remediation plan at least every ninety (90) days;

2. written cleanup progress reports describing the

status of s o i l cleanup activities conducted pursuant to an

approved remediation plan at least every thirty (30) days. The

report format will be developed by the DEC and the respondents.

Reports, at a minimum, must contain the fOllOWing:

A. a description of cleanup work performed during the

reporting period;

B. an estimate of the percentage of soil cleanup

completed and/or the results of the groundwater remediation

program;

3 . the projected and/or scheduled construction work

for the next reporting period; and

4 . all available laboratory/monitoring data collected

during the reporting period. -

XI. CLEANUP LEVELS.

a. The cleanup of any contaminated soil or water will

be deemed complete at the following levels:

1. for water, at a purity level such that the water

meets or exceeds the applicable primary drinking water standards

for benzene, ethylbenzene, toluene, xylene, nitrate, barium,

cadmium, chromium and lead set out in 18 AAC 80 or in applicable

federal regulatory requirements for Maximum Contaminant Lyels for

drinking water, as may be amended, and no detectable TPH as

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determined by EPA method 418.1. For substances not listed above,

which are subsequently discovered, cleanup to appropriate MCL's or

background levels will be required unless an alternate cleanup

level is established pursuant to Part XI, b. For other substances

for which no enforceable standards currently exist, and the

parties cannot come to agreement regarding appropriate levels, the

matter shall be submitted to the hearing officer under Part X

above;

2. for soils contaminated with hydrocarbons at a level

such that the following compounds are found in no greater

concentrations than indicated when the soil is tested under EPA

method 8020:

A. benzene, one-tenth (0.1) mg/kg;

B. total benzene, toluene, ethyl benzene and xylenes,

ten (10) mg/kg;

3 . for soils contaminated with hydrocarbons at a level

such that the diesel range petroleum hydrocarbons, when the soil

is tested using SW-846 test method 8100 modified, are in no

greater concentration than one hundred (100) mg/kg or can be

statistically shown, by a statistical method approved in writing

by the ADEC, to have an average concentration of less than one

hundred (100) mg/kg with a confidence interval of ninety-five

percent (95%) ;

4 . for soils contaminated with pollutants other than

hydrocarbons, either removal or cleanup to background levels.

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b. If respondents wish modification of water or soil

contamination concentrations to ,levels which exceed levels

specified in this Part the respondents may prepare additional risk

assessments which set forth the respondents justification for the

proposed elevated clean-up levels. The risk assessment shall

include an exposure assessment, toxicity assessment and risk

characterization. The risk assessment elements are described as

follows:

1. Exposure Assessment - The Exposure Assessment shall identify routes by which receptors may be exposed to contaminants

and shall estimate contaminant levels to which receptors may be

exposed. The Exposure Assessment should:

A. Identify contaminant concentrations found at the

site;

B. Identify background contaminant concentrations

found at the site and in the aquifer;

C. Identify potential exposure routes;

D. Identify potential receptors for each exposure

route; and

E. Estimate or calculate expected contaminant

concentrations to which actual or potential receptors may be

exposed.

2 . Toxicity Assessment - The Toxicity Assessment shall determine human health and environmental criteria based on

information from scientific literature for contaminanp at the

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site.

routes identified in the Exposure Assessment which may include:

The criteria shall be developed for applicable exposure

A. Potable water and soil exposure routes for

ingestion, dermal contact, and inhalation of vapors and mists;

B. Non-potable domestic water exposure route for dermal

contact, inhalation of vapors or mists, ingestion of food crops

irrigated with such water, lawn watering, ingestion by pets and

livestock, and other related exposures;

3 . Risk Characterization - The Risk Characterization shall utilize the results of the Exposure Assessment and the

Toxicity Assessment to characterize cumulative risks to the

affected population and the environment for contaminants found at

the site. Based on contamination levels presently found at the

site, a risk characterization shall be performed which considers:

A. Risks to human health and safety from the

contamination;

B. Effects on the -public welfare from exposure to the

contamination; and

C. Environmental risks in areas which are, or will be,

ultimately affected by the contamination.

c. Any risk assessment prepared pursuant to this Part

shall be submitted to DEC at least sixty ( 6 0 ) days prior to the

commencement of soils or groundwater cleanup. DEC shall approve,

approve with modifications, or reject the risk assessment.

Respondents agree to reimburse DEC for all reasonaple costs

incurred if DEC chooses to contract for risk assessment review

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services. Respondents shall contact DEC within thirty (30)

working days from the date of receipt of a preliminary written

decision by DEC either rejecting or modifyingthe risk assessment.

If the DEC and the respondents cannot reach agreement on the

disputed rejection or modification of the risk assessment within

thirty (30) additional working days, DEC shall provide a final

written statement of its decision to the respondents. DEC's final

written decision shall constitute a final agency action for

purposes of judicial review pursuant to Alaska Rule of Appellate

Procedure 602(a)(2). DEC's final decision shall remain in effect

pending resolution of the appeal unless a stay is granted by the

court on appeal. Nothing in this Part precludes DEC from invoking

the provisions of AS 46.03.820.

d. Cleanup of metal contaminants to levels lower than

background will not be required. If the respondents desire to

establish the existing background metal levels, it is the

responsibility of the respondents to perform the sampling and data

analysis necessary to establish a background metals level. DEC

must approve both the method used to establish metals background

levels and the actual background metals level values. If pursued,

establishment of background metal levels will be considered part

of a proposed modified remediation plan subject to the plan

approval process delineated in Part VIII.

XII. TERMINATION AND SATISFACTION.

Respondents shall submit to DEC upon completion of all

terms of this Compliance Order By Consent a written notice which

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states that in respondents' opinion, all tasks required hereunder

have been completed. DEC shall either accept or reject

respondents' notice of completion by issuing a written decision to

that effect within 90 days. If DEC rejects respondents' notice of

completion, DEC shall include in its decisional document of

rejection a statement which identifies the task DEC considers

incomplete. The provisions of this Compliance Order By Consent

shall be deemed satisfied upon respondents' receipt of written

decision from DEC that respondents have completed the task(s)

required by this COBC to DEC's satisfaction.

XIII. COSTS and DAMAGES STIPULATED PENALTIES.

a. Costs and Damaues to the State Caused bv the

Pollution. Respondents shall pay to the State, not later than

March 1, 1992, the sum of $ 2 7 5 , 0 0 0 . 0 0 (two hundred seventy-five

thousand dollars and no cents) in complete liquidation of their

financial obligation, if any, to the State under AS 4 6 . The sum

shall be paid by check made payable to the State of Alaska, DEC

Oil and Hazardous Substance Mitigation Account.

b. Future Costs. In order to reimburse DEC for the

costs it will incur in oversight of respondents' compliance with

this Compliance Order By Consent, respondents shall pay to the

State the sum of $35.00 per hour for each hour reasonably spent by

the DEC authorized officer, or designee(s) thereof, in oversight

' of this compliance Order By Consent and shall pay in addition for

all DEC' s incidental costs , including risk assessment rev,iew costs if incurred pursuant to Part XI c. The DEC authorized officer may

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appoint employees of DEC to perform actions reasonably necessary

for the oversight, which employees will be billed at the rate of

$35.00 per hour. DEC‘s authorized officer shall submit an

itemized billing to respondents on the fifteenth (15th) day of the

month during which the oversight work was performed or incidental

costs incurred. Respondents shall have thirty (30) days

thereafter to pay the billing. All billings shall be paid by

check made payable to the State of Alaska, DEC Oil and Hazardous

Substance Mitigation Account. For the purposes of this Subpart,

I’incidental costsv1 include reasonable travel and accommodation

expenses, long-distance telephone charges, photocopying charges,

laboratory sampling and analysis charges, the costs of monitoring

w e l l s , contract services, and other like expenses.

c. ResDondents’ Costs. All costs respondents incur in

carrying out the provisions of this Compliance Order By Consent

and cleaning up the site and any contaminated adjacent areas shall

be borne solely by the respondents. However, nothing in this Part

XI11 precludes respondents from seeking reimbursement for such

costs from each other or from other parties (excluding the State).

XIV. FORCE MAJEURE.

a. If any event occurs which delays or may cause a

delay and effectively preclude compliance with a term of this

Compliance Order By Consent, respondents shall promptly notify DEC

orally and shall, within seven (7) days of oral notification,

notify DEC in writing of the anticipated length and cauqe of the

delay, the measures taken and to be taken by respondents to

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prevent or minimize delay, and the timetable by which respondents

intend to implement the measures.

b. If DEC finds that respondents have complied with

the notice requirements of the preceding subpart and respondents

have proved that any delay or anticipated delay has been or will

be caused by unforeseen engineering or design problems, labor

strife, adverse weather conditions, natural disasters, or other

circumstances beyond the reasonable control of respondents, DEC

shall extend the t i m e for performance hereunder for a period no

longer than the delay resulting from such circumstances. The

increased or unexpected costs of performance or change of economic

conditions may not be considered as reasons for delay. Delay in

an interim requirement shall extend the deadlines for the

attainment of subsequent requirements if attainment of the

subsequent requirements is dependent on completion of the interim

requirements. Respondents' submission of a request for an

extension of time will not toll any time unless the DEC authorized

officer provides a written extension of time as provided by this

Part. No extension of time of any provision of the Compliance

Order By Consent shall be valid unless approved in writing by the

DEC authorized officer.

XV. JURISDICTION AND VENUE.

If DEC or the respondents elect to enforce any provision

of this Compliance Order By Consent in court, jurisdiction and

venue will be proper if the action is brought in the ,Superior

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court for the State of Alaska, Third Judicial District, either in

Anchorage or in Kenai, Alaska.

XVI. ACCESS TO SITE: ACCESS TO RECORDS.

a. Respondents shall allow DECunrestricted reasonable

access to the site for oversight of activities taken pursuant to

this Compliance Order By Consent. DEC shall have the right to

conduct tests, take samples, take photographs, make sound

recordings, and conduct other activities it considers necessary to

monitor compliance.

b. Respondents shall make available to DEC for

inspection and copying upon DEC's request, all documents, records,

photographs, data and other writings related to any activities

taken pursuant to this Compliance Order By Consent, except

Privileged documents including but not limited to attorney/client

communications, and attorney work product documents which would be

protected from disclosure in litigation.

XVII. RECORDS PRESERVATION.

Respondents shall preserve during the pendency of this

Compliance Order By Consent and for a minimum of six (6) years

after termination pursuant to Part X I 1 above, all non-privileged

documents in Respondents' possession which relate in any way to

this Compliance Order By Consent or the activities undertaken

pursuant to it.

XVIII- SAMPLES-

At the request of DEC, Respondents shall all?w DEC to

obtain split or duplicate samples of any samples collected by

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respondents in connection with efforts undertaken pursuant to this

Compliance Order By Consent.

XIX. OTHER OBLIGATIONS.

This Compliance Order By Consent does not relieve

respondents from the duty to comply with the requirements

contained in any federal or state permit or in applicable state

and federal pollution control statutes or regulations, but

compliance with this Compliance Order By Consent shall, with

respect to the Poppy Lane gravel pit, be deemed to remedy fully

any alleged violations of the statutes set out in Part IV, b of

this Compliance Order By Consent, and any other Alaska statutes

and all regulations and orders implemented thereunder or related

thereto.

XX. RESERVATION OF RIGHTS.

DEC expressly reserves the right to initiate

administrative or judicial proceedings related to any alleged

violation not covered by this Compliance Order By Consent, except

as provided in Part XXI below. In addition, DEC reserves the

right to initiate administrative or judicial proceedings relating

to alleged violations described in this Compliance Order By

Consent if respondents breach this Compliance Order By consent, or

if, in DEC's opinion, subsequently discovered events or conditions

constitute an immediate threat to public health, public safety, or

to the environment, or if actions of the respondents precluded DEC

from discovering the event or condition prior to enteFing into

this Compliance Order By Consent. DEC and respondents reserve the

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right to initiate further administrative or judicial proceedings

t o enforce any term of this Compliance Order By Consent if the

parties do not comply with the provisions set forth herein.

XXI. COVENANT NOT TO SUE.

Provided respondents comply with the terms of this

Compliance Order By Consent to the satisfaction of DEC, and

subject to the conditions in Part XX above, DEC shall not

institute any action against respondents, whether civil, criminal,

administrative, penalty, or costs recovery, for the alleged

violations described in Part IV that concern pollution of the site

or any contaminated adjacent areas.

XXII. DEC ORDER.

This Compliance Order By Consent constitutes an order of

DEC for the purposes of AS 46.03.760, AS 46.03.765, AS 46.03.790, j A s 46.03.850, and for all other authorized purposes.

XXIII. PROPERTY TRANSFER.

If respondents transfer, sell, or lease the site to

another party after the date hereof and prior to termination under

Part XI1 above, respondents shall incorporate a copy of this

Compliance Order By Consent into the documents of transfer or

lease, and shall provide in those documents that the new owner(s)

or lessee(s) shall take or lease subject to the provisions of this

Compliance Order By Consent. Notwithstanding the foregoing, the

transfer or lease of any interest in the site by any of the

respondents shall not release any of them from liability under

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this Compliance Order By Consent absent the written approval of

the release by the DEC authorized officer.

XXIV. PARTIES BOUND/EXTENT OF LIABILITY.

This Compliance Order By Consent shall apply and be

binding upon DEC and the State and upon respondents, their agents,

successors, and assigns and upon all persons, contractors, and

consultants acting on behalf of DEC or respondents.

XXV. MODIFICATIONS.

No modification of this Compliance Order By Consent is

valid unless it has been approved in writing by the DEC authorized

officer and respondents.

XXVI. INDEMNIFICATION AND HOLD HARMLESB.

Respondents shall defend, at their sole expense, and

hold harmless the State and its representatives, agents and

employees and shall indemnify the State against all liability,

losses, and damages including any awards of costs and attorneys'

fees, by reasons of claims for injury to or death of persons and

loss or damage to property arising out of or in any manner

connected with corrective actions taken in conjunction with this

Compliance Order By Consent, whether such claims are rightfully or

wrongfully brought or filed; provided, however, that respondents

shall have no obligation to defend or to indemnify or to hold

harmless the State, its representatives, agents or employees from

any claims arising out of or in any manner connected with the

incidents which gave rise to this Compliance Order By Consent or

any corrective actions taken pursuant to it or otherwise for that

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. . _ _ . ....--.- _._ . . . . _-

000042

portion of the damages or injury for which the State is

comparatively at fault if the State's independent negligence

causes such damage or injury. The term "independent negligenceov

is negligence other than in the State's negotiation,

determination, or specification of respondents' responsibilities

under this Compliance Order By Consent, or the State's assessment,

approval, acceptance, denial, or rejection of respondents'

performance under this Compliance Order By Consent. For the

purposes of this Part, tmliability, losses, and damages" and

"claims for injury to or death of persons and loss or damage to

property" include such of the foregoing as may arise to present or

future owners of the site or of any contaminated adjacent areas or

to other members of the public resulting from incidents which gave

rise to this Compliance Order By Consent, or from any corrective

actions taken pursuant to this Compliance Order By Consent or

otherwise.

XXVII. EFFECTIVE DATE.

The effective date of this Compliance Order By Consent

is the date signed by the DEC authorized officer after it has been

signed by a l l respondents.

XXVIII. PRIOR DRAFTS.

Prior drafts of this Compliance Order By Consent may not

be used in any litigation involving the interpretation of this

document.

XXIX. SEVERABILITY.

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000042 * . .,i

Should any part of this Compliance Order By Consent be

declared by a court of law to be invalid and unenforceable, the

other terms shall remain in full force and effect.

XXX. AGENTS FOR SERVICE/APPROVALS.

a. The DEC authorized officer is the Southcentral

Regional Administrator, or such person as he may from time-to-time

designate in writing. When a DEC approval is needed under this

COBC, it must come from the DEC authorized officer. All notices,

reports, etc., shall be directed by respondents’ to DEC’s

authorized officer.

b. Within thirty (30) days of execution of this Order,

respondents shall designate in writing a person to serve as agent

for all of them for the purposes of receipt from DEC of written

decisions, billings, and other notices. This designee may be

changed from time to time as respondents may elect but only by

written notice to DEC’s authorized officer.

XXXI. DEFINITIONS.

a. The following definitions shall apply in this

Compliance Order By Consent:

1. ttContaminated adjacent areal’ includes all publicly

and privately owned land and waters polluted by pollution

migrating off the site. It includes, but may not be limited to,

groundwater underneath the Hardy property to the northwest of the

site.

2. tlPollutioni* is as defined in AS 46.03.90*0(19).

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.&q i?/A%skS4 - , hereby certify that I am the %D-&=*brJ mmm& , of MARATHON OIL COMPANY, and that have the authority to enter into agreements on behalf of RATHON OIL COMPANY, and to otherwise legally bind MARATHON OIL MPANY. I hereby acknowledge that I have read the provisions of is Compliance Order By Consent, that I understand its ovisions, and that I have freely and voluntarily entered into is compliance Order By Consent with the State of Alaska on half of MARATHON OIL COMPANY.

k 4 - a - MARATHON OIL COMPANY

TED :

SWORN AND SUBSCRIBED TO before me thisg,i,iday of / 4 5 a

Norary Public for Alaska, /

W Y My‘commissionexpires:

* * * * * 7 / i Ab , hereby certify that I am the r&l#”P &p &/,/&f , of UNION OIL COMPANY OF

A that I have the authority to enter into agreements on behalf UNION OIL COMPANY OF CALIFORNIA, and otherwise legally bind

ION OIL COMPANY OF CALIFORNIA. I hereby acknowledge that I have ad the provisions of this Compliance Order By Consent, that I Aerstand its provisions and that I have freely and voluntarily tered into this Compliance Order By Consent with the State of aska on behalf of UNION OIL COMPANY OF CALIFORNIA.

L~FORNIA, PBA U N U ~ L

SWORN AND SUBSCRIBED TO before me thisat& day of - , 1991.

%-ary 8 % for Alaska MY commission expires: 3-13-45

c

ALASKA DEPARTMENT OF

2 4

I , . - . .

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ENVIRONMENTAL CONSERVATION

By : -Svend Brancit-Erichsen Southcentral Regional Office Regional Administrator

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