Full opinion text
MEMORANDUM OPINION AND ORDER NEWBLATT; District Judge. Pending before the Court in this CERCLA case are the following motions: (1) Motion to Approve the Consent Decree; (2) Motion by Citizens United to Intervene. The Consent Decree is APPROVED, and the Motion to Intervene is DENIED. BACKGROUND The Metamora Landfill Site in Lapeer County, Michigan is a CERCLA Superfund Site (“Site”) that served from 1955-1980 as a privately owned dump. The Site is located approximately 4,000 feet east of the Village of Metamora. Defendant’s Brief in Support of Motion for Entry of the Metamora Consent Decree, Ex. 19, (“Defendant’s Ex. 19”) App. 31 at 1. After drums containing hazardous substances were discovered at the site in 1981, the Michigan Department of Natural Resources, (“MDNR”) conducted a magnetometer survey which indicated that as many as 35,000 drums might be present in five disposal areas around the site. The survey estimated that the areas labelled “one” and “four” in the Site contained about three-fourths of the drums buried at the Site. The Site was placed on the National Priorities List (“NPL”) in September, 1984. The United States Environmental Protection Agency (“E.P.A.”) issued a Record of Decision (“ROD I”) on September 30, 1986. This document considered a range of options for dealing with the site. It settled on excavating areas one and four and incinerating the contents at an off-site incinerator. The reason for incinerating off-site was that the length of time to obtain Michigan permitting requirements would delay the remedy by two years. Remedial action commenced in March, 1988. Over 24,000 drums were excavated from areas one and four, and the contents of 10,-000 drums were incinerated off-site, primarily in Dee Park, Texas. As a result of a shortage of incinerators, however, and of federal restrictions governing incineration, see 40 C.F.R. part 264, subpart O, incinerator prices sharply increased. Furthermore, additional drums and thousands of tons of contaminated soil were discovered and stacked at Metamora. A new remedial investigation and feasibility study was started to address the problem. These studies found groundwater contamination and seeps of leachate around the landfill and detection of contaminated soil. Plaintiffs Ex. 5, ROD II, 4-5, Tables 1, 2. EPA published notice of the completion of these studies, solicited public comment, and held a meeting in the nearby village to receive comments from the public. Consent Decree at 2. EPA then issued a second Record of Decision (“ROD II”) on September 28, 1990. This ROD considered seven alternatives for dealing with the Site and three for dealing with the Landfill contents. EPA evaluated the choices for cleanup according to the criteria in the National Contingency Plan (NCP), 40 CFR § 300.430(e)(9)(iii). Plaintiffs Ex. 5, Rod II Summary 15-20. EPA chose to install and operate a network of groundwater extraction wells; treat the extracted groundwater by preeipitation/flocculation, air stripping, and recharge back into the shallow aquifer; and monitor for detection of hazardous substances. For the landfill, EPA chose to cover the landfill with a clay covering; install an on-site gas collection system; and build an on-site incinerator. Id. at 19-20. Because of the SARA amendments, EPA no longer needed to obtain permit approval for the on-site landfill. 42 U.S.C. § 9621(e)(1). EPA found that this remedy met the requirements of CERCLA: that is, protects human health and the environment, attains all ARARS; is cost effective; utilizes permanent solutions and alternative treatment technologies to the maximum extent practicable, and satisfies CERCLA’s preference for remedies that employ treatment that reduces toxicity, mobility or volume as a principal element. Plaintiffs Ex. 5, ROD II at 2; ROD II Summary at 21-24. EPA estimated the capital cost at $7.95 million, and the total present value of the remedy at $19.4 million. Id. at 20. EPA then notified potentially responsible parties (“PRPs”) and invited them to submit a proposed remedial action. EPA and the thirty-five settling defendants reached an agreement for defendant to perform the ROD II remedy. Attached to the Consent Decree is a Scope of Work (“SOW”) which outlines the basic features of the clean-up project for which, the settling defendants have agreed to pay. The SOW specifically required that this on-site incinerator destroy 99.99% of principal organic hazardous waste and 99.9999% of PCBs. The SOW also requires that the incinerator must comply with the substantive requirements of applicable statutes and regulations, including emissions requirements from the federal Clean Air Act and Michigan air pollution laws. The SOW actually goes beyond ROD II in that it includes remediation of residual, contaminated soil at the Site in accordance with an EPA selected remedial action. At least 22 vendors exist for on-site incineration and about 50 other Superfund sites currently use on-site incineration. Plaintiffs Ex. 6, at 6. Under the Consent Decree, EPA reviews the remedial action every five years in accordance with CERCLA, 42 U.S.C. § 9621(c), to assure that human health and the environment are being protected, and EPA may act with additional enforcement if necessary. Consent Decree ¶ 19. Paragraph 64 of the Consent Decree specifically excludes from the agreement of the United States not to sue the defendants, the reimbursement of the Government’s past response costs at the Site. After the Consent Decree was lodged with the Court on July 18, 1991, the U.S. published a notice of settlement and solicited public comment for 30 days, 56 Fed.Reg. 36845 (Aug. 1, 1991), which was renewed for another thirty days. EPA published an Explanation of Significant Differences (“ESD”) in the Lapeer County Press on September 4, 1991. EPA also held two public meetings in August-September 1991, in Metamora. Plaintiffs Ex. 6, ESD, at 8. Over fifty comments have been filed opposing the consent decree. EPA has filed a Reply to Comments at Appendix A to the Memorandum Brief of the United States in Support of Motion for Entry of Proposed Consent Decree. Citizens United’s Motion to Intervene The motion to intervene has been brought by Citizens United (“CU”) in order to oppose the proposed remedy in the Consent Decree. This motion is subject to Fed.R.Civ.P. 24. To intervene, a motion must be raised in a timely fashion. Stotts v. Memphis Fire Dept, 679 F.2d 579, 582 (6th Cir.1982) cert. denied, 459 U.S. 969, 103 S.Ct. 297, 74 L.Ed.2d 280 (1983); Fed.R.Civ.P. 24 (“(a) Intervention of Right. Upon timely application----” “(b) Permissive Intervention. Upon timely application____”). The Sixth Circuit has identified five factors that are “particularly probative” in determining whether intervention is timely: (1) the purpose for which intervention is sought; (2) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (3) prejudice to the original parties; (4) unusual circumstances militating in either direction; (5) the point to which the suit has progressed. Stotts at Id. A review of these factors indicate that intervention cannot be considered timely. First, CU’s purpose for intervening is to promote the health of its members by noting objections to the proposed clean-up. However, CU is able to express its views regarding the consent decree without being a party due to its submitted comments. Bloomington v. Westinghouse Elec. Corp., 824 F.2d 531, 534 (7th Cir.1987). Therefore, its stated purpose for intervention does not strengthen its case for intervention. Moreover, CU contends that the existing parties do not adequately represent its interests. There is admittedly some divergence of interests between the would-be intervenors and Plaintiff. The national interest in cleaning up Superfund sites according to the NCP criteria is almost certainly not identical to the concerns of the Metamora neighbors of the Site. See e.g., Assessment of Incineration as a Treatment Method for Liquid Organic Hazardous Wastes: Summary and Conclusions (E.P.A. Office of Policy, Planning and Evaluation March, 1985) at § 5. “Public Acceptability of Risks”, Defendant’s Ex. 19, App. 25. For instance, the public often wishes to reduce risks completely; whereas, E.P.A. finds a low level of risk to be acceptable. Id.; Hazardous Waste Incineration: Questions and Answers, Defendant’s Ex. 19, App. 19 at 41 (“Reasonable, worst-case estimates of health risks posed by metals and organic compounds in emissions for a permitted hazardous waste incinerator range from one chance in 100,000 to one chance in 100,000,-000 of contracting cancer over a lifetime. These conservative estimates assume 70 years of continuous exposure at the point where pollutant concentrations would be the highest.”). Nonetheless, Congress enacted CERCLA to protect the health of citizens and to act in the public interest. See H.Rep. 96-1016, Part I, 17 reprinted in 1980 U.S.C.C.A.N. 6119, 6120 (1980) (CERCLA legislative history). It is not altogether clear exactly how the private interests of CU differs from the public interest, and “a prospective intervenor that basically asserts the public interest faces a presumption that the state’s representation of the public interest will be adequate.” United Nuclear Corp. v. Cannon, 696 F.2d 141, 144 (1st. Cir.1982) citing Pennsylvania v. Rizzo, 530 F.2d 501, 505 (3d Cir.) cert. denied, 426 U.S. 921, 96 S.Ct. 2628, 49 L.Ed.2d 375 (1976); 7A C. Wright & A. Miller, Federal Practice and Procedure § 1909, at 525-529 (1972). This similarity of interests between CU and Plaintiff is reflected in the nature of CU’s stated objections to the Consent Decree. The objections of CU to the Consent Decree concern both procedural and substantive matters. The procedural objections address primarily issues of public involvement in the formulation of the plan. See infra. The substantive matters address the technical basis for the scientific conclusions made by the Government. See e.g., Affidavit of Stuart A. Batterman, Assistant Professor of Environmental Health Sciences at the School of Public Health, University of Michigan, appended to CU’s Motion to Intervene; Professor Batterman’s Comments at 3-10, Plaintiffs Motion for Entry of Consent Decree, Attachment B, Ex. 4. CU’s interests with regard to its substantive objections therefore are ■ represented in large measure by the Government, with whom it may disagree as to method, but not substantially as to the ultimate outcome. CU’s interests regarding its procedural objections do differ from the Government’s interests; however, the Court finds that they are adequately addressed from its current position as a submitter of comments. Second, CU has waited too long prior to seeking intervention in this case. CU has participated in this case as a non-party for several years. United States v. Mid-State Disposal, Inc., 131 F.R.D. 573, 576 (W.D.Wis. 1990). CU waited over a year after the Consent Decree was lodged with the Court to propose intervention. The Court finds that CU should have intervened after the lodging of the consent decree; for it was at that point that CU’s differences with the Government’s method of clean-up became clear or should have become clear to CU. Even were the Court to accept CU’s claim that the reasonable time to examine for this purpose is the period following the Government’s Motion for Entry of the Consent Decree, CU waited too long. CU waited almost five months to seek intervention following the Government’s motion for entry. While CU claims that “[i]n the context of this case, this is an insignificant, even trivial period,” the Court cannot agree. Precisely because this case has taken so many years to complete, and the Government’s motion constitutes the final phase of litigation, CU should have acted promptly to intervene. CU could have prepared the motion in anticipation of the rejection of its demands by the Attorney General. Alternatively, CU could (and should) have prepared this motion, which is on a simple procedural issue, within a- few weeks following the .Government’s motion. Thus, the Court finds that CU did not file promptly. Had CU determined that its interests diverged from the Government’s at the date the consent decree was first lodged, a delay of five months would not have been fatal, because a lengthy process remained prior to the Government’s motion for entry. At the final juncture in the case, however, the motion came too late. Third, the parties will suffer prejudicial delay resulting from the intervention which, naturally, will seek to reexamine issues previously settled in formulating the consent decree. United Nuclear Corp. v. Cannon, 696 F.2d 141, 143 (1st Cir.1982). This delay could result not only in re-negotiating the terms of the remediation, but in conducting the clean-up. After all, CU opposes on-site incineration. If it was successful in this position, none of the thousands of drums containing hazardous substances could be destroyed until EPA conducted a new study resulting in an alternative clean-up plan. Judging from the record in this case, that would take more than one year, and possibly three or four years. In the meantime, the drums would remain at the landfill, vulnerable to environmental or man-made pitfalls. This time lag constitutes prejudicial delay. Conversely, CU cannot claim prejudice for its lack of presence in the litigation, because it is able to express its views completely through the comment process, see infra. Fourth, the Court finds that exceptional circumstances militate against intervention: the ability of CU to express its views absent intervention makes intervention inappropriate. Unlike most would-be intervenors, CU has submitted briefs and technical appendices for the Court’s consideration in the motion for entry of the consent decree. The comment process provides an unusual degree of participation that obviates the need for participation as a party in the litigation. The Court is free to evaluate from the briefs the reasonableness of CU’s procedural and substantive complaints. Finally, the status of the litigation favors denial of intervention. “The purpose of the [timeliness] requirement is to prevent a tardy intervenor from derailing a lawsuit within sight of the terminal.” United States v. South Bend Community School Corp., 710 F.2d 394, 396 (7th Cir.1983). The CU intervention comes during the final phase of this case. Therefore, all five factors that this Court must examine suggest that the’ application for intervention is untimely. The Court bears in mind that the risk of denying intervention is to “promote a sort of prophylactic intervention whereby parties would be compelled to intervene in matters ■’ simply to protect their rights to participate in .those matters downstream on the more remote chance that a party apparently protecting intervenors’ interests might someday betray them. Such a result would obviously be expensive and inefficient.” In re Acushnet River & New Bedford Harbor, 712 F.Supp. 1019, 1023-24 (D.Mass.1989), later proceedings, sub. nom. U.S. v. AVX Corp., 962 F.2d 108 (1st Cir.1992). However, the Court believes that there is a competing policy at work: the rapid settlement of extraordinarily lengthy and expensive CERCLA litigation. Acushnet, 712 F.Supp. at 1027 and n. 13. ‘“Costly protracted litigation threatens the effectiveness of the Superfund Program and consumes resources better spent on cleanup.’ ” Id. (quoting 132 Cong.Rec. H9564 (daily ed. Oct. 8, 1986) (Statement of Rep.Lent)). CU has been at the side of this cauldron of litigation for years, continuously asking for tastes, but never serving as chef. Now that the soup is just about to be served, CU wants to change the recipe. While the Court is not unsympathetic to the plight of CU, which was undoubtedly forced to make difficult judgments balancing’the' expense of early intervention with the risk of being kept out, that sympathy does not sway the Court in its application of the Stotts test. Moreover, the Court does not predict that this opinion will encourage early intervention in CERCLA cases; that choice entails great expense. Rather, it will encourage prospective intervenors to intervene once consent decrees have been lodged. The Motion to intervene is DENIED. MOTION TO ACCEPT CONSENT DECREE The Court next considers the motion by the U.S. and by the settling defendants to accept the consent decree. I. Standard of Review In this Circuit, the 3-prong stan'dard of review by a district court of a proposed CERCLA consent decree is whether it is fair, reasonable and consistent with the goals of CERCLA. United States v. Akzo Coatings of America, Inc., 949 F.2d 1409, 1424 (1991); H.R.Rep. No. 253, Part 3, 99th Cong. 1st Sess. 19 (1985). In evaluating the decree, the Court must bear in mind that “[¡judicial approval ... places the power and prestige of the Court behind the compromise struck by the parties” Williams v. Vukovich, 720 F.2d 909, 923 (6th Cir.1983), and that protection of the public interest is paramount. Acushnet River & New Bedford Harbor Proceedings, 712 F.Supp. at 1027. On the other hand, “The court may either approve or disapprove the settlement; it may not rewrite it.” Harris v. Pernsley, 654 F.Supp. 1042, 1049' (E.D.Pa.1987), aff'd, 820,F.2d 592 (3d Cir.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 336, 98 L.Ed.2d 36.3 (1987). Significantly, the Sixth Circuit has held, “In evaluating the decree, it is not our function to determine whether this is the best possible settlement that could have been obtained, but only whether it is fair, adequate and reasonable,” Akzo Coatings, 949 F.2d at 1436, and that the presumption in favor of government-negotiated settlements “is particularly strong where a consent decree has been negotiated by the Department of Justice on behalf of a federal administrative agency like EPA which enjoys the substantial expertise in the environmental field.” Id., at 1436. “A reviewing court should not attempt to substitute its judgment for the expertise of EPA officials. Ours is the task of searching for errors of procedure, and serious omissions of substantive evidence, not the job of reformulating a scientific cleamup program developed over the -course of months or years.” Id., at 1425. (footnote omitted). In addition, the Court must employ the arbitrary and capricious standard of review found at 42 U.S.C. § 9613(j)(2). The parties claim that this settlement was made pursuant to the requirements 42 U.S.C. § 9622. ' II. Application of the Standard A. Fairness Both EPA and the settling defendants claim that the settlement was reached after arms-Iength negotiation. EPA estimates that remediation, to be paid by the settling defendants, will cost approximately $50 million. Various commentators suggest that the settlement is unfair, primarily because the process by which the ROD II altered the remediation plan is inconsistent with the due process requirements imposed by CERCLA. Other courts have treated fairness primarily in terms of procedural fairness, see e.g., United States v. Cannons Engineering Corp., 899 F.2d 79 at 86 (1st Cir.1990); therefore, this prong of the analysis should address the concerns of commentators in regard to the process by which this agreement was reached. EPA employed a substantial factual record prior to entertaining negotiations on the consent decree: ROD I, the 1989-90 RI/FS, and ROD II. Several commentators contend however that EPA erred in failing to amend ROD I rather than publish an ESD on September 4, 1991. They point out that the ESD was issued following negotiations between the parties. While this is true, EPA also delayed in issuing the ESD until after it had solicited comments from the public. As all parties and commentators appear to acknowledge, the test that this Court must apply as to whether an amendment to the ROD is required is whether the changes in the remedial action “fundamentally alter the basic features of the selected remedy with respect to scope, performance, or cost” selected in the ROD. 40 C.F.R. § 300.-435(c)(2). The most significant change that resulted from the new negotiations was the choice to conduct on-site incineration as opposed to off-site incineration. Several commentators contend that it is difficult to describe this change as anything other than “fundamental.” See e.g., Public Comment in Opposition to Proposed Consent Decree Submitted by the Township of Metamora (“Township Comments”) at 48-51. From the perspective of a resident of Metamora, the incineration of the material on-site clearly constitutes a significant change. Under the previous plan, the hazardous substances were to go somewhere else for incineration. Now, they are burned locally. Clearly, this prospect raises new hazards for the community, such as an explosion at the incinerator, or the possibility that carcinogenic ash could be released. On the other hand, the dangers of transporting the materials, which presumably previously existed, is vastly reduced. Plaintiffs Motion, Attachment A at 30 (Response to Comment 47). The Court must apply the “fundamental change” language in the way that it was drafted. The last three key words, “cost”, “performance” and “scope” provide the only basis by which EPA considers whether a “basic feature” of a clean-up is “fundamentally altered.” The incineration obviously constitutes a “basic feature” of the clean-up. There is no evidence in the record that cost estimates have been fundamentally altered by the change in remedial action plans. Rather, the cost estimates were rapidly increasing by maintaining the original clean-up plan. See Defendant’s Ex. 6 (Petition to Reopen 1986 Record of Decision). The Court must therefore decide whether changing the location of the incineration fundamentally alters the performance or scope of a basic feature of the cleanup. The change in site, by itself, does not result in differing amounts of material being incinerated. Thus, scope is not implicated. Nor are the standards of compliance with the federal ARARs altered by the change in location: the 99.99% and 99.9999% rates for destruction of hazardous materials remain constant. Therefore, performance is not fundamentally altered. Finally, ROD I specifically stated that “Disposal of the material will depend on the availability of RCRA complaint facilities.” ROD I, Plaintiffs Ex. 2 at 1. That document indicated that limited availability may require revisions. Therefore, the ESD’s announcement changing from off-site to on-site therefore did not require an amendment of ROD I. Commentators have also argued that the decision only to excavate and incinerate the drums in areas 1 and 4 constituted another “fundamental change” in ROD II. See Township Comments at 18 (suggesting that possibly EPA has arbitrarily decided not to investigate Areas 2, 3, and 5). However, ROD I, issued in 1986, also called only for the excavation of areas 1 and 4. ROD I, Plaintiffs Ex. 2. at 1. EPA made this decision, based on the recommendation of the consulting firm that performed the RI/FS, that it would be more dangerous to perform excavation of the other areas than to cap the landfill, while leaving open the possibility of additional clean-up activities if leakage to the environment occurs. Plaintiffs Motion, Attachment A, 40-41 (Response to Comments 65-67); see also, Plaintiffs Ex. 12 (EPA Guidance recommending limiting excavation of municipal landfills to “hot spots” or to small landfills containing less than 100,100 cubic yards of contaminated soil). Metamora contains an estimated 1-1.5 million cubic yards. Finally, excavation of all waste at Metamora was estimated to cost $200 million. Plaintiffs Ex. 4, FS, Table 4-5. Significantly, commentators can show no prejudice from EPA’s decision to treat the change in clean-up plan as requiring an ESD rather than amending an ROD. In fact, EPA performed all of the major steps required to amend a ROD: the agency issued a notice in major steps required to amend a ROD: the agency issued a notice in the newspaper; they held 60 days open for comments; they held two public meetings; and issued a fact sheet. None of the other comments regarding procedural fairness warrant additional discussion by the Court. The Court directs the reader to Plaintiffs Appendix B, which provides the Government’s response to comments, as sufficiently responding to all other issues. Therefore, all comments regarding the fairness of the plan are rejected. B. Reasonable The Consent Decree is a comprehensive document of 85 paragraphs. It is supplemented by a highly detailed SOW. The settling defendants have agreed to adhere to all the requirements in both the consent decree and the scope of work. Moreover, if the SOW proves insufficient to perform the clean-up activities in conformance with the Government’s requirements, the Government is explicitly authorized under the Consent Decree ¶¶ 15-17 (¶ numbers refer to Consent Decree) to proceed against the settling defendants to obtain additional clean-up efforts. EPA shall monitor the clean-up activities under ¶ 13 and must authorize all changes. ¶ 14. EPA shall also conduct periodic reviews ¶¶ 19-20. ¶¶ 38-44 provide for a dispute resolution system, with an EPA official resolving all disputes, subject to a limited period of judicial review for twenty business days following the EPA decision if the defendants are not satisfied. ¶ 40(e). ¶¶ 52-63 provide for stipulated penalties should the defendants fail to comply with deadlines for achieving goals. Furthermore, settling defendants may not raise the defense of impracticability to the groundwater extraction system for at least ten years. ¶ 12. All of these provisions suggest that compliance "will occur. ¶ 64 provides a covenant to protect the settling defendants against suit by the United States. This paragraph specifically excludes the following matter's: a. liability arising from hazardous substances removed from the Facility; b. natural resource damages; c. criminal liability d. Claims based on a failure by the Settling Defendants to meet the requirements of this Consent Decree; e. Any matter for which the United States is owed indemnification under Section XIX hereof [Section XIX (¶¶ 71-73) specifies terms of indemnification]; f. Liability for violations of Federal law which occur during implementation of the remedial action. g. Liability for performance of remedial design or remedial action at the Facility other than the Work required hereunder. h. Liability for reimbursement to the United States for any response costs other than those paid hereunder, including without limitation, any response costs incurred prior to the entry of this Consent Decree. Consent Decree ¶ 64. Most importantly, ¶ 65 specifically reserves the Government the right to proceed against the settling defendants during or after completion of the work at Metamora or to seek an order compelling them to perform additional response work if previously unknown conditions are discovered indicating that the “the remedial action is not protective of human health and the environment; ...” Thus, it is readily apparent that the Government has not relinquished its rights by entering into the decree in a haphazard or unreasonable fashion. Rather, the Government has reserved itself considerable rights to ensure that the goals of cleaning the site will be accomplished. For these reasons, the Court finds that the “decree is carefully structured so as to ensure the protection of human health and the environment, ...” Akzo, 949 F.2d at 1437, and consistent with the requirements of 42 U.S.C. §§ 9621 and 9622. The Court finds the Consent Decree is reasonable. C. Consistent With the Goals of CERCLA ¶77 states that the United States finds that the work performed under the Consent Decree is consistent with CERCLA and the NCP. The Court must decide whether this finding is warranted. All remedial action at the Site must meet all substantive federal and state environmental requirements. Plaintiffs Motion, Attachment A at 21-22 (Response to Comment #33). The Consent Decree provides for a cleanup of the Site by PRPs at the expense of the Defendants, thereby preserving the Superfund for use at other sites. The remedy was selected in accordance with CERCLA’s procedural requirements. The settlement also furthers the public policy favoring voluntary settlement without expensive litigation. Hundreds of pages of comments were submitted suggesting that CERCLA was violated by the adoption of the Consent Decree. Some of these comments have already been addressed. The Court believes that a discussion of two more of them is warranted in this section of the opinion. The De Minimis PRPs have not entered into the settlement, and they request that the Court not enter the settlement until they are included pursuant to 42 U.S.C. § 9622(g). Plaintiff notes that these companies did not approach EPA until after the statutorily limited period of 120 days had expired following the issuance of the PRP notice letters. 42 U.S.C. § 9622(e)(2). This argument is dis-positive in favor of the Government. While the United States raises additional arguments on this point, see Plaintiffs Brief in Support of Motion for Entry of Consent Decree 43-44, they are not necessary to address. Several comments express concerns with the plans to address groundwater contamination. See e.g., Comments 61-62, and Responses, found at Attachment A 36-38. These comments ignore that EPA is following the recommendation of the FS, as to the particular remedial action provided for, and that the Consent Decree provides mechanisms by which EPA can require additional technologies if necessary to achieve the performance and cleanup standards selected for the site. Attachment A at 37 (Response to Comment 61 and sources cited therein). As to the remaining comments, they have been adequately answered by the responses found in Attachment A. Finally, the Court wishes to state that the record provided by the Government has been extremely thorough and well-argued: in particular, the Court wishes to single out the Response to Comments (Attachment A) which was prepared by EPA as unusually helpful. The Motion to Enter the Consent Decree is GRANTED. SO ORDERED. TABLE OF CONTENTS Page I. PURPOSE OF DECREE...............................................614 II. JURISDICTION........................................................614 III. PARTIES BOUND .....................................................614 IV. DEFINITIONS.........................................................614 V. GENERAL PROVISIONS...............................................615 VI. PERFORMANCE OF THE WORK BY SETTLING DEFENDANTS.......616 VII. ADDITIONAL WORK AND MODIFICATION OF THE SOW.............618 VIII.U.S. EPA PERIODIC REVIEW TO ASSURE PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT..........................619 IX. QUALITY ASSURANCE................................................619 X. FACILITY ACCESS, SAMPLING, DOCUMENT AVAILABILITY.........620 XI. REPORTING REQUIREMENTS........................................620 XII. REMEDIAL PROJECT MANAGER/PROJECT COORDINATORS.........621 XIII. FORCE MAJEURE ....................................................621 XIV. DISPUTE RESOLUTION...............................................622 XV. RETENTION AND AVAILABILITY OF INFORMATION................623 XVI. REIMBURSEMENT....................................................624 XVII. STIPULATED PENALTIES............................................624 XVIII. COVENANT NOT TO SUE; CONTRIBUTION PROTECTION............627 XIX. INDEMNIFICATION; OTHER CLAIMS................................628 XX. INSURANCE/FINANCIAL RESPONSIBILITY...........................629 XXI. NOTICES..............................................................629 XXII. CONSISTENCY WITH NATIONAL CONTINGENCY PLAN..............629 XXIII. ENDANGERMENT AND EMERGENCY RESPONSE....................630 XXIV. COMMUNITY RELATIONS ............................................630 XXV. RETENTION OF JURISDICTION; MODIFICATION....................630 XXVI.EFFECTIVE DATE AND CERTIFICATION OF COMPLETION OF REMEDY............................................................630 APPENDIX CONSENT DECREE WHEREAS, The United States Environmental Protection Agency (“U.S. EPA”), pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9605, placed the Metamora Landfill in La-peer County, Michigan (the “Facility” as specifically defined in Paragraph 4 of this Consent Decree) on the National Priorities List, which is set forth at 40 CFR Part 300, Appendix B, by publication in the Federal Register on September 21, 1984, 49 Fed.Reg. 37066 (September 21, 1984); In response to a release or a substantial threat of a release of a hazardous substance at or from the Facility, the U.S. EPA in February, 1986, completed a Site Characterization Report for the Facility; U.S. EPA completed a Phased Feasibility Study for the Facility in August, 1986; Based upon the Site Characterization Report and the Phased Feasibility Study, U.S. EPA reached a decision on a remedial action plan for areas 1 and 4 of the Facility, and on September 30,1986, signed a Record of Decision for Areas 1 and 4 of the Facility; (attached as Appendix 1 hereto) The U.S. EPA in October, 1986 commenced a Remedial Investigation and Feasibility Study (“RIFS”) pursuant to 40 CFR 300.68 for the Facility; U.S. EPA completed a Remedial Investigation (“RI”) Report in March, 1989, and completed a Feasibility Study (“FS”) Report in March, 1990; The FS Report contained a proposed plan for remedial action at the Facility; On or about July 12, 1990, U.S. EPA, pursuant' to Section 117 of CERCLA, 42 U.S.C,. § 9617, published notice of the completion of the RIFS and of the proposed plan for remedial action, in a major local newspaper of general circulation and provided opportunity for public comment to be submitted in writing to U.S. EPA by August 28, 1990 or orally at a public meeting held in the City of Metamora, Michigan, on August 1, 1990; U.S. EPA, pursuant to Section 117 of CERCLA, 42 U.S.C. § 9617, has kept a transcript of the public meeting and has made this transcript available to the public as part of the administrative record located at U.S. EPA, Region V, 230 South Dearborn Street, Chicago, Illinois and at Lapeer Library, Metamora Branch, 4042 Oak Street, Metamora, Michigan. On November 9, 1990, and dates subsequent thereto, U.S. EPA, pursuant to Section 122 of CERCLA, 42 U.S.C. § 9622, notified certain parties that the U.S. EPA determined each party to be a potentially responsible party (“PRP”) regarding the proposed remedial action at the Facility; In accordance with Section 121(f)(1)(F) of CERCLA, 42 U.S.C. Section 9621(f)(1)(F), U.S. EPA notified the State of Michigan on November 9, 1990 of negotiations with PRPs regarding the scope of the remedial design and remedial action for the Facility, and U.S. has provided the State with an opportunity to participate in such negotiations and be a party to any settlement; Pursuant to Section 122(j) of CERCLA, 42 U.S.C. § 9622(j), on November 9, 1990 U.S. EPA notified the Federal natural resource trastee of negotiations with PRPs on the subject of addressing the release or threatened release of hazardous substances at the Facility; Certain persons have provided comments on U.S. EPA’s proposed plan for remedial action, and to such comments U.S. EPA provided a summary of responses, all of which have been included in'the administrative record referred to above; Considering the proposed plan for remedial action and the public comments received, U.S. EPA has reached a decision on a final remedial action plan, which is embodied in a document called a Record of Decision (“ROD”) signed by the Regional Administrator on September 28, 1990, (attached as Appendix 1 hereto), to which the State has given its concurrence, and which includes a discussion of U.S. EPA’s reasons for the final plan and for any significant changes from the proposed remedial action plan contained in the FS; U.S. EPA, pursuant to Section 117(b) of CERCLA, 42 U.S.C. § 6917(b), has provided public notice of adoption of the final remedial action plan set forth in the ROD, including notice of the ROD’s availability to the public for review in the same locations as the administrative record referred to above; Pursuant to Section 117(d) of CERCLA, 42 U.S.C. [§]9617(d), the notice has been published in a major local newspaper of general circulation, and the notice includes an explanation of any significant changes from the proposed remedial action plan contained in the FS and the reasons for such changes; Pursuant to Section 121(d)(1) of CERCLA, 42 U.S.C. § 6921(d)(1), U.S. EPA, and Settling Defendants, (“the Parties”) believe that the remedial action plans adopted by U.S. EPA will attain a degree of cleanup of hazardous substances, pollutants and contaminants released into the environment and of control of further release which at a minimum assures protection of human health and the environment at the Facility; The Parties believe the remedial action plans adopted by U.S. EPA and the attached Scope of Work (“SOW”) as set forth in Appendix 2 will provide a level or standard of control for such hazardous substances, pollutants, or contaminants' which at least attains legally applicable or relevant and appropriate standards, requirements, criteria, or limitations under Federal environmental law or State environmental or facility citing law in accordance with Section 121(d)(2) of CERCLA, 42 U.S.C. § 9621(d)(2), and that the remedial action plans and SOW are in accordance with Section 121 of CERCLA, 42 U.S.C. § 9621, and with the National Contingency Plan (“NCP”), 40 CFR Part 300; Settling Defendants agree to implement the final remedial action plans adopted by U.S. EPA in the manner described in the SOW as set forth in Appendix 2 to this Consent Decree and incorporated by reference into this Decree, and U.S. EPA has determined that the work required under the. Consent Decree will be done properly by Settling Defendants and that Settling Defendants are qualified to implement the remedial action plans in the manner described in the SOW; and The Parties recognize, and intend to further hereby, the public interest in the expedition of the cleanup of the Facility and in avoiding prolonged and complicated litigation between the Parties; NOW, THEREFORE, it is hereby ■ Ordered, Adjudged and Decreed: I.PURPOSE OF DECREE 1. The purpose of this Consent Decree is to provide for implementation by Settling Defendants of the final remedial design and remedial action for this Facility selected by U.S. EPA, as set forth in the Records of Decision in the manner described in the SOW attached as Appendix 2, and to provide for payment of certain response costs to be incurred by the United States for the Facility after execution of this Consent Decree by the Settling Defendants. II.JURISDICTION 2. This Court has jurisdiction over the subject matter herein pursuant to 28 U.S.C. §§ 1331(a) and 1345, and 42 U.S.C. §§ 9613(b) and 9622(d)(1)(A), and over the parties consenting hereto. Settling Defendants hereby waive service of the summons and complaint in this action. III.PARTIES BOUND 3. This Consent Decree applies to and is binding upon the undersigned parties and their successors and assigns. It shall not be a defense to this Consent Decree that an agent of any Settling Defendant violated any term or condition of this Consent Decree. The undersigned representative of each party to this Consent Decree certifies that he or she is fully authorized by the party or parties whom she or he represents to enter into the terms and conditions of the . Consent Decree and to execute and legally bind that party to it. Settling Defendants shall provide a copy of this Consent Decree to the contractor(s) hired to perform the work required by this Consent Decree and shall require the contractor(s) to provide written notice of the decree to any subcontractor retained to perform any part of the work. IV.DEFINITIONS 4. Whenever the following terms are used in this-Consent Decree and the Appendices attached hereto, the following definitions shall apply: “Cleanup and Performance Standards” means the: requirements respecting the degree of cleanup of groundwater,- surface water, soil, air or other environmental media that must be achieved by the remedial action, as set forth in the RODs, in the manner described in the SOW, paragraph 12 of this Decree, and the SOW. “Consent Decree” means this Decree and all appendices hereto. In the event of conflict between this Decree and any appendix, the Decree shall control. “Contractor” means the company or companies retained by or on behalf of Settling Defendants to undertake and complete the work required by this Consent Decree. Each contractor and subcontractor shall be qualified to do those portions of the work for which it is retained. Each contractor and subcontractor shall be deemed to be related by contract to each Settling Defendant within the meaning of 42 U.S.C. § 9607(b). “Facility” refers to the location where treatment, storage, disposal or other placement of hazardous substances was conducted by Metamora Landfill, Inc., which facility is located at 1717 Dryden Road, in Lapeer County, State of Michigan, including all of the areas shown more particularly on the map attached as Appendix 3. “Future liability” refers to liability arising after U.S. EPA’s Certification of Completion is issued pursuant to Section XXVI hereof. “Hazardous substance” shall have the meaning provided in Section 101(14) of CERCLA, 42 U.S.C. § 9601(14). “National Contingency Plan” or “NCP” means the term used in Section 105 of CERCLA, 42 U.S.C. § 9605 and is promulgated at 40 CFR Part 300. “Oversight Costs” means any costs not inconsistent with the National Contingency Plan incurred by U.S. EPA in monitoring the compliance of the Settling Defendants with this Consent Decree, including but not limited to payroll and other direct costs, indirect and overhead costs, sampling and laboratory costs, travel, contractor costs and costs of review of the work performed pursuant to this Consent Decree. “Parties” means the United States of America, and the Settling Defendants. “RD/RA Work Plan” means, the plan for the design, construction and implementation of the remedial action for the Facility. “Record of Decision” or “ROD” means the administrative Records of Decision issued by U.S. EPA on September 30, 1986, and September 28, 1990, setting forth the remedial action requirements for the Facility, attached as Appendix 1 hereto. “Remedial Project Manager” or “RPM” means the person designated by U.S. EPA to coordinate, monitor or direct remedial activities at the Facility pursuant to 40 CFR 300.33 and Section XII hereof. “Response Costs” means any costs not inconsistent with the NCP incurred by the United States pursuant to 42 U.S.C. §§ 9601 et seq. and any costs which are necessary and consistent with the NCP incurred by any other party. “Scope of Work” or “SOW” means the plan, set forth as Appendix 2 to this Decree, for implementation of the remedial design and remedial action at the Facility pursuant to the Records of Decision, and any subsequent amendments of Appendix 2 pursuant to the provisions- of this Decree. “Settling Defendants” means those parties other than the United States of America who sign this Consent Decree. “State” means the State of Michigan; “MDNR” means the State’s environmental protection agency. “United States” means the United States of America. “U.S. EPA” means the United States Environmental Protection Agency. “U.S. DOJ” means the United States Department of Justice. “Work” means the design, construction" and implementation, in accordance with this Consent "Decree, of the tasks described in this Decree, the RODs, in the manner described in the SOW, the Work Plan(s), and any other plans or schedules submitted and approved by U.S. EPA pursuant to this Decree or the SOW. V. GENERAL PROVISIONS 5. Commitment of Settling Defendants to Perform RD/RA. a. Settling Defendants agree jointly and severally to finance and perform the Work as defined in paragraph 4 hereof. b. The Work shall be completed in accordance with all requirements of this Decree, the RODs in the manner described in the SOW, the RD/RA Work Plan and all other plans or schedules submitted and approved by U.S. EPA under this Decree. The procedures for submission and approval of plans are set forth in Section VI below. 6. Compliance with Applicable Laws; Permits and Approvals a. All activities undertaken by the Settling Defendants pursuant to this Consent Decree shall be undertaken in accordance with the requirements of all applicable federal and state laws, regulations and permits, as required by CERCLA. b. Pursuant to Section 121(e)(1) of CERCLA, no federal, state, or local permits are required for work conducted entirely on the Facility. Settling Defendants shall obtain all permits or approvals necessary for work off the Facility under applicable federal, state or local laws and shall submit timely applications and requests for any such permits and approvals. c. The standards and provisions of Section XIII hereof describing Force Majeure shall govern delays in obtaining permits required for the Work and also the denial of any such permits, provided that Settling Defendants have made timely and complete application for any such permits. d. Settling Defendants shall include in all contracts or subcontracts entered into for work required under this Consent Decree, provisions stating that such contractors or subcontractors, including their agents and employees, shall perform all activities required by such contracts or subcontracts in compliance with all applicable laws and regulations. e. This Consent Decree is not a permit issued pursuant to any federal or state statute or regulation. 7. Formal Approval Required. No informal advice, guidance, suggestions or comments by representatives of the United States or the State on plans, reports or other documents submitted by the'Settling Defendants shall be construed as relieving them from obtaining any formal approvals, permits or other authorizations required by law or by this Decree. Further, no advice, guidance, suggestions or comments by such government representatives with respect to any submission by the Settling Defendants shall be construed so as to relieve them of their obligations under this Decree or to transfer any of their liability or obligations under this Decree to any other party or person. 8. Computation of Time. Unless otherwise provided, dates and time periods specified in or under this Decree are in calendar days. If the date for submission of any item or notification required by this Decree falls upon a weekend or state or federal holiday, the time period for submission of that item or notification is extended to the next working day following the weekend or holiday. Submission shall be deemed accomplished when the item is delivered or mailed to the required party or parties. 9. Institutional Controls. The U.S. EPA has determined that the institutional controls set forth in Appendix 2, Section II, SOW hereto are necessary to effectuate the remedial action for the facility and to protect the public health or welfare or the environment. VI. PERFORMANCE OF THE WORK BY SETTLING DEFENDANTS 10. Selection of Architect/Engineer and Contractor(s). a. Architect/Engineer. All remedial design work to be performed by Settling Defendants pursuant to this Consent Decree shall be under the direction and supervision of a qualified professional architect or engineer. Selection of any such architect or engineer is subject to approval by U.S. EPA, after providing the State a reasonable opportunity for review and comment. b. Contractor. All remedial action work to be performed by the Settling Defendants pursuant to this Consent Decree shall be under the direction and supervision of a qualified professional engineer or other appropriate qualified professional. As soon as possible after execution of the Decree by Settling Defendants, and at least 30 days prior to the date upon which initiation of remedial action work is required under this Decree, the Settling Defendants shall notify U.S. EPA, in writing, of the name, title, and qualifications of the proposed engineer or other appropriate qualified professional, and the names of principal contractors and subcontractors proposed to be used in carrying out the Work to be performed pursuant to this Constant Decree. Selection of any such engineer, other qualified professional, contractor and/or subcontractor shall be subject to approval by the U.S. EPA, after providing the State a reasonable opportunity for review and comment. EPA shall specify the reasons for not approving such contractor, subcontractor, engineer or other qualified professional. e. Disapproval of Archited/Engineer or Contractor. If U.S. EPA disapproves of the initial or subsequent selection of an architect, engineer, other qualified professional, or contractor, Settling Defendants shall submit a list of alternate architects, engineers, and other qualified professionals or contractors to U.S. EPA within 30 days of receipt of the notice of disapproval. Within 14 days from receipt of the list U.S. EPA, after providing the State a reasonable opportunity for review and comment, shall provide written notice of the names of the architects, engineers, other qualified professionals or contractors on the list of which it approves. Settling Defendants may select any approved, architect, engineer, other qualified professional or contractor from the list and shall notify U.S. EPA of the name of the person or entity selected within 21 days of receipt of the list. If U.S. EPA does not approve or disapprove of any proposed architect, engineer, other qualified professional or contractor or any proposed list of alternate architects, engineers, other qualified professionals or contractors within 14 days and the delay prevents Settling Defendants from meeting one or more deadlines in a plan approved by U.S. EPA pursuant to this decree, Settling Defendants may seek relief under the provisions of Section XIII hereof. d. Replacement of Architect/Engineer or Contractor If at any time Settling Defendants propose to change an architect, engineer, other qualified professional or contractor previously approved by U.S. EPA, they shall give written notice to U.S. 'EPA and the State of the name, title and qualifications of the proposed new architect, engineer, other qualified professional or contractor. Such architect, engineer, other qualified professional or contractor shall not perform any Work until approval by U.S. EPA, after providing the State a reasonable opportunity for review and comment, has been given. 11. Scope of Work. Appendix 2 to this Consent Decree provides a Scope of Work (“SOW”) for the completion of remedial design and remedial action at the Facility. This Scope of Work is incorporated into and made an enforceable part of this Consent Decree. 12. Cleanup and Performance Standards/Technical Impracticability. a. Cleanup Standards. 1.The Work performed under this Consent Decree shall meet the Cleanup and Performance Standards set forth in the SOW. b., Technical Impracticability. 1. Petition. After a minimum of ten (10) years of operation of the groundwater extraction system, the Settling Defendants may petition the U.S. EPA to waive compliance with one or more of the Clean-up and Performance Standards contained in the SOW, based upon a demonstration, pursuant to § 121(d)(4) of CERCLA, 42 U.S.C. § 9621(d)(4), that achievement of such Cleanup and Performance Standard is technically impracticable from an engineering perspective. 2. Determination. U.S. EPA, after providing the State a reasonable opportunity for review and comment, shall review and consider the information in the Petition submitted pursuant to Subparagraph b.l and shall make a determination, in accordance with applicable laws and regulations in effect at the time of the Petition, whether compliance with any of the Clean-up and Performance Standards shall be waived, and what alternative Clean-up and Performance Standards, or other , protective measures, shall be established. 3. Review. Settling Defendants may challenge the U.S. EPA’s determination under Subparagraph b.2 in accordance with the Dispute Resolution ■ provisions under Paragraph XIV of this Consent Decree. The U.S. EPA’s determination'shall be treated as a determination regarding adequacy or selection of the remedy. 4. Periodic review. Any technical impracticability waiver granted pursuant to this Subparagraph shall be subject to the periodic review provisions of Paragraph VIII of this Consent Decree and § 121(c) of CERCLA, 42 U.S.C. § 9621(c). 13. Work Plan. a. Within 45 days of the execution of this Consent Decree by the Settling Defendants, the Settling Defendants shall commence work as specified in Appendix 2 by submitting the Draft Incineration Work Plan to U.S. EPA and the State. Settling Defendants shall not be required under the terms of this Decree to pay any Oversight Costs for U.S. EPA’s review of their work prior to execution of the decree by Settling Defendants under this paragraph, but following execution shall pay all such Oversight Costs that accrued subsequent to execution pursuant to Section XVI hereof. b. Settling Defendants shall submit the remaining plans pursuant to the schedule specified in Appendix 2. c. All plans and modifications submitted shall be developed in conformance with the RODs in the manner described in the SOW and the NCP. U.S. EPA Superfund Remedial Design and Remedial action Guidance and any additional guidance documents provided by U.S. EPA that are in effect at the time of plan submission shall be followed to the extent that they apply to the activities at the Site. If an applicable U.S. EPA guidance document is changed or is issued which requires modification of plans under development, the deadlines of such plans shall be adjusted as necessary to incorporate such guidance into the plan being developed. d. All plans shall be subject to review, modification and approval by U.S. EPA, after providing the State a reasonable opportunity for review and comment, in accordance with the Procedures set forth in para. 14 below. e. All approved plans shall be deemed incorporated into and made an- enforceable part of this Consent Decree. All work shall be conducted in accordance with the National Contingency Plan, the U.S. EPA Superfund Remedial Design and Remedial Action Guidance, and the requirements of this Consent Decree, including the standards, specifications and schedule contained in the Work Plan. 14. Approval Procedures for Work Plans and Other Documents. a. Upon review of each work plan or other document required to be submitted and approved by U.S. EPA pursuant to this Decree, and after providing the State with a reasonable opportunity for review and comment, the U.S. EPA Remedial Project Manager (the “RPM”) shall notify Settling Defendants, in writing that a document is (1) approved, (2) disapproved, (3) modified by U.S. EPA to cure deficiencies, or (4) returned to Settling Defendants for modification. An explanation shall be provided for any disapproval or required modification. b. Upon approval or modification of a submission by U.S. EPA, Settling Defendants shall proceed to implement the work required. c. In the event of partial U.S. EPA disapproval or request for modification by Settling Defendants, the Settling Defendants shall proceed to implement the work in any approved portions of the submission upon request by U.S. EPA, to the extent that such work can be implemented prior to approval of the revised submission and shall submit a revised document to U.S. EPA curing the deficiencies within 30 calendar days of receipt of notice from U.S. EPA or such other time as may be agreed to by the parties. d. Settling Defendants may submit any disapproval, modification, or conditions of approval to which they object, for dispute resolution pursuant to Section XIV hereof. The provisions of Section XIV (Dispute Resolution) and Section XVII (Stipulated Penalties) shall govern the implementation of Work and accrual and payment of any stipulated penalties during dispute resolution. Implementation of non-deficient portions of the submission shall not relieve Settling Defendants of any liability for stipulated penalties under Section XVII. VII. ADDITIONAL WORK AND MODIFICATION OF THE SOW 15.No Warranty. The provisions of the SOW attached as Appendix 2 reflect the parties’ best efforts at the time of execution of this Decree to define the technical work required to perform the remedial action contained in the RODs in the manner described in the SOW. a. The Parties acknowledge and agree that approval by U.S. EPA of either the SOW or the Work Plan will not constitute a warranty or representation of any kind that the SOW or Work Plan will achieve the Cleanup and Performance Standards, and shall not foreclose the United States from seeking compliance with the applicable Cleanup and Performance Standards. 16. Modification of the Scope of Work The parties recognize that modification of the SOW may be required at some point in the future, e.g. to provide for additional work needed to meet the Clean-up and Performance Standards specified above. In such event, the following procedures shall be followed to amend the SOW: a. The party that determines that additional work or other modification of the SOW is necessary shall provide written notice of such determination to the other parties. b. The other parties shall respond to such notice in writing within thirty (30) days of receipt or such other time as may be agreed to by the parties. 17. Modification by Agreement. If the parties agree on the modifications to the SOW, the agreement shall be in writing and shall be submitted, along with the amended SOW, for approval of the Court. 18. Dispute Resolution. If the parties do not agree on the proposed modifications, they shall initiate dispute resolution pursuant to Section XIV of this Decree. The scope and standard of review set forth in para. 40 shall govern any judicial determination in such dispute. VIII. U.S. EPA PERIODIC REVIEW TO ASSURE PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT 19. To the extent required by Section 121(c) of CERCLA, 42 U.S.C. § 9621(c), and any applicable regulations,' U.S. EPA shall review the remedial action at the Facility at least every five (5) years after the entry'of' this Consent Decree to assure that human health and the environment are being protected by the remedial action being implemented. If upon such review, U.S.- EPA determines that further response action is appropriate at the Facility in accordance with Section 104 or 106, then, consistent with Section XVIII of this Consent Decree, the U.S. EPA, after providing the State with a reasonable opportunity for review and comment, may take or require such action pursuant to Section 104 or 106. 20. Settling Defendants shall be provided with an opportunity to confer with U.S. EPA on any response action proposed as a result of U.S. EPA’s 5-year review and to submit written comments for the record. The provisions of Section 113(j) of CERCLA, 42 U.S.C. § 9613Q) will govern any judicial review of U.S. EPA’s determination that any such remedial action is necessary or the nature of any such action. IX. QUALITY ASSURANCE 21. Settling Defendants shall use quality assurance, quality control, and chain of custody procedures in accordance with U.S. EPA’s “Inter