BOLIDEN METECH, INC.,

01 OF 01

AMENDMENT TO THE CONSENT DECREE

TSCA

1993

BOLIDEN

PROVIDENCE, RI

89-0208-T

01

AMENDMENT TO THE CONSENT DECREE, U.S.A. V. BOLIDEN METECH, INC., Page 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

UNITED STATES OF AMERICA,

Plaintiff,

v.

BOLIDEN METECH, INC.,

Defendant.

WHEREAS, Plaintiff, the United States of America, at the request of the Environmental Protection Agency ("EPA") filed the Complaint in this action. The Complaint alleges that defendant Boliden Metech, Inc. ("Boliden") operated its facility located on Allens Avenue in Providence, Rhode Island (the "Facility"), in a manner that violated the Toxic Substances Control Act, 15 U.S.C. Sub-Section 2601, et seq. ("TSCA"), and the regulations thereunder relating to the timely and proper processing, use, handling, storage and disposal of polychlorinated biphenyls ("PCBs"). The Complaint seeks injunctive relief with respect to the alleged violations. Among other things, the Complaint alleged that piles of shredded electronic scrap at the Facility were contaminated with PCBs. Boliden denied the allegations. ++EP++

Page 2

Specifically, Boliden denied that PCBs were present in the piles of shredded equipment at the Facility and claimed that EPA's data demonstrating the presence of PCBs were not reliable;

WHEREAS, in January 1991, the District Court entered a Consent Decree ("1991 Decree") signed by Boliden and the United States. Pursuant to the 1991 Decree, Boliden took samples from the shredded piles of scrap metal and analyzed them pursuant to methods proposed by Boliden and approved by EPA. By the terms of the 1991 Decree, Boliden and the United States agreed to be bound by the results of that sampling and analysis for the purposes of this case. On or about October 28, 1991, Boliden submitted the results of that sampling and analysis to EPA (the "October 1991 data"). The data showed that the shredded piles contain PCBs in concentrations ranging from 33 to 616 parts per million ("ppm");

WHEREAS, under the terms of the 1991 Decree, Boliden agreed to dispose of any pile containing PCBs in concentrations in excess of 50 ppm in accordance with the PCB disposal regulations set forth at 40 C.F.R. Section 761.60, within time limits set forth in the 1991 Decree. The United States agreed that Boliden could elect to export any piles having average PCB concentrations under 50 ppm, for purposes of smelting and precious metals recovery in accordance with Boliden's normal business practices, provided that Boliden deliver notice to the government of the importing country in accordance with specified procedures; ++EP++

Page 3

WHEREAS, Boliden wishes to export a portion of the shredded electronic scrap containing PCBs in concentrations in excess of 50 ppm from the United States to Sweden for the purpose of smelting and reclamation of precious metals. Specifically, Boliden seeks to export approximately 220 tons of electronic scrap, consisting of material that Boliden acquired from the Defense Logistics Agency and subsequently shredded, to Sweden to be smelted at a facility operated in Skelleftehamn, Sweden by Boliden Mineral AB ("Boliden Mineral"), a co-member with Boliden of a business entity that Boliden and Boliden Mineral refer to as the Trelleborg Group;

WHEREAS, Sweden is a party to the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal ("Basel Convention" or the "Convention"). Article 4(5) of the Convention prohibits parties from importing covered materials from non-parties. As of the date of lodging with the Court of this Amendment to the Consent Decree, the United States has signed the Convention but is a non-party because the United States has not ratified the Convention. Article 11 of the Convention allows parties to enter into bilateral, multilateral or regional agreements or arrangements regarding transboundary movement of covered materials, and states that the Convention does not affect transboundary movements that take place pursuant to such agreements provided that such agreements are compatible with the environmentally sound management of the materials as required by the Convention; ++EP++

Page 4

WHEREAS, on March 30, 1992, the Organization for Economic Cooperation and Development ("OECD") adopted Council Decision C(39) 92 on the Control of Transfrontier Movements of Wastes Destined for Recovery Operations (the "OECD Council Decision"). The OECD Council Decision constitutes an agreement or arrangement that meets the standards of Article 11 of the Basel Convention. Sweden, under the terms of the Convention, may permit the import of covered materials for recovery operations provided that the shipment occurs in compliance with the OECD Council Decision; and

WHEREAS, Boliden represents that Boliden Mineral has received from the Statens Naturvardsverk of Sweden (the "Swedish Agency") a permit to import up to 350 tons of the shredded material for smelting. Boliden represents that Boliden Mineral applied for the permit and supplied the Swedish Agency with all information relevant to whether smelting is appropriate, safe, and environmentally sound, including a fair representation of the concentrations of PCBs in the shredded material to be smelted.

NOW, THEREFORE, it is hereby ORDERED, ADJUDGED and DECREED that the 1991 Decree is amended as follows:

I. 1991 DECREE REMAINS IN EFFECT

1. Except as specifically set forth herein, all provisions of the 1991 Decree shall remain in full force and effect. ++EP++

Page 5 II. EXPORT OF THE EXPORT PARCEL

2. Section V.3 of the 1991 Consent Decree is hereby amended to permit the export of approximately 220 tons of the shredded material for smelting (the "export parcel"), subject to the reservations, terms and conditions set forth in paragraphs 4-33 below. The export parcel shall consist of the material at the Facility that Boliden acquired from the Defense Logistics Agency and subsequently shredded.

III. COVENANT NOT TO SUE

3. In addition to the covenant not to sue set forth in Section XVII of the 1991 Decree, but subject to the reservations of rights set forth therein, the United States covenants not to sue or to take administrative action under TSCA against Boliden for export parcel to Boliden Mineral's Ronnskar smelter in Skelleftehamn, Sweden ("Ronnskar Facility"), so long as the terms and conditions set forth in paragraphs 6-31 are met. This additional covenant not to sue is limited to liability under TSCA for the export of the export parcel only. This additional covenant does not extend to any liability under any other statute or regulation. This covenant will become and remain effective only if Boliden complies with the terms and conditions set forth in paragraphs 6-31, below.

IV. RESERVATION

4. This Amendment to the Consent Decree is based on the extraordinary facts and circumstances involved in this particular shipment, and is not intended to be, nor shall it be construed as, a statement of EPA policy or precedent that is relevant or applicable to any other situation. ++EP++

Page 6 V. JURISDICTION

5. a. Except as set forth in subparagraph (b) below, the parties agree and this Court finds that this Court shall have jurisdiction over any action by EPA, or by the United States on behalf of EPA, alleging a violation by Boliden of federal law alleged to be committed by virtue of or in the course of the export of the export parcel, and any such action shall be brought in this Court.

b. Subparagraph (a) does not apply to:

(1) Any administrative action pursuant to section 16(a) of TSCA, 15 U.S.C. Section 2615(a), or

(2) Any action for which there is no basis for subject matter jurisdiction in this Court.

c. Notwithstanding subparagraphs (a) and (b), any dispute that arises with respect to whether Boliden has complied with the terms and conditions set forth in paragraphs 8-31 below shall be resolved in accordance with Section XV (Dispute Resolution) of the 1991 Decree.

VI. TERMS AND CONDITIONS FOR SHIPMENT OF THE EXPORT

PARCEL

A. Compliance with Federal Laws and International Treaties and Conventions

6. With respect to the removal, transport, and export of the shredded material, Boliden shall comply fully with all applicable federal laws and the regulations promulgated thereunder. ++EP++

Page 7

7. a. Boliden shall comply with all applicable requirements of the March 30, 1992, Organization for Economic Cooperation and Development ("OECD") Council Decision on the Control of Transfrontier Movements of Wastes Destined for Recovery Operations (C(92)39/Final) ("OECD Council Decision"), including but not limited to Sections II and V, and Appendices 1 and 2. The OECD Council Decision is appended as Exhibit A to this Amendment to the Consent Decree and incorporated herein. Boliden also shall comply with any applicable requirements of United States legislation ("Basel implementing legislation") implementing the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal ("Basel Convention"), upon the enactment of such legislation prior to the export. In the event that Basel implementing legislation is enacted after the commencement of the export, the foregoing sentence shall not be construed to release Boliden from any liability or obligation which such legislation may impose pertaining to disposition, if for any reason the export parcel is not smelted in accordance with this Amendment. In the event that EPA promulgates regulations implementing the OECD Council Decision or the Basel Convention prior to commencement of any notification or shipment, Boliden shall comply with any such new regulations in addition to the requirements of this Amendment to the Consent Decree.

b. Boliden hereby certifies that, to the best of its knowledge, the Boliden Mineral facility in Sweden to which it intends to export the shredded material is a recovery operation within the meaning of the OECD Council Decision with respect to the shredded material. ++EP++

Page 8

In the event that Sweden determines that the Boliden Mineral facility does not meet the criteria of a recovery operation for purposes of the OECD Council Decision, Boliden shall immediately cease its export of the shredded material.

B. Other Terms and Conditions

8. Boliden has provided to EPA a copy of a permit which Boliden represents was issued by the appropriate authorities of the Swedish Agency approving importation of the export parcel for the purposes discussed above ("Import Permit"), along with a certified English translation of such permit. Boliden represents that the documents appended hereto as Exhibits B and C are true and correct copies of such permit and certified translation.

9. Boliden shall not ship the export parcel until Boliden Mineral has provided assurance in writing to EPA that it will accept delivery of the export parcel at its Ronnskar Facility and smelt the export parcel in accordance with all conditions of the Import Permit. Such assurance shall provide that Boliden Mineral will not seek to export from Sweden any waste residue or by-product generated by the smelting of the export parcel, except that metals recovered by such smelting may be sold, exported, or otherwise disposed of by Boliden Mineral as it would in the ordinary course of business. ++EP++

Page 9

The assurances required by this paragraph shall be written in English.

10. a. If, for any reason after the export parcel leaves the United States, the export parcel is not permitted to enter Sweden or is not accepted or processed by Boliden Mineral for smelting in accordance with the Import Permit and the Notification described in paragraph 13, Boliden agrees to notify EPA in compliance with OECD Council Decision Sections II(3) and V, and Appendix 2, and promptly return the export parcel to the United States and dispose of such export parcel in accordance with the PCB regulations, 40 C.F.R. Section 761.60(a), and any other applicable federal laws or regulations. Specifically, shredded materials containing PCBs in concentrations of 50 ppm or higher shall be disposed of in a landfill in accordance with 40 C.F.R. Section 761.75, within ninety (90) days. The unavailability, after a diligent search by Boliden, of a ship and containers able to transport the material in a manner consistent with this amendment to the consent decree within the specified time limit shall be considered a Force Majeure event for purposes of Part XIV of the 1991 Decree, but will only be so considered for the period of delay caused by the unavailability of a ship or containers. The ninety (90) day period shall begin to run from when the waste is not accepted or processed.

b. If Boliden fails to dispose of the export parcel within ninety (90) days in accordance with subparagraph (a), Boliden agrees to pay within thirty (30) days of demand therefore all direct costs incurred by the United States or any agency of the United States resulting from management, transport, storage or disposal of the export parcel. ++EP++

Page 10

11. Removal of the export parcel from the Facility shall be completed no later than June 1, 1993. The smelting of the export parcel shall be completed no later than July 31, 1993.

12. EPA shall retain all access and inspection authority it has under all federal laws with respect to the Boliden facility. Boliden shall permit EPA access to its facility at any reasonable time for the purpose of assessing Boliden's compliance with the terms and conditions of this Amendment to the Consent Decree.

13. a. Prior to exporting the export parcel, Boliden will submit to EPA's Office of Waste Programs Enforcement (with a copy to the Department of Justice) a notification of intention to export (the "Notification") that contains the same information required of a notification under (1) Section 3017 of the Resource Conservation and Recovery Act ("RCRA"); (2) 40 C.F.R. Part 262, Subpart E; and (3) any additional information required by OECD Council Decision Appendix 2.A. The Notification shall include information as to the metal content of the export parcel. The United States will convey the Notification to Sweden, and to any "Country of Transit" within the meaning of the OECD Council Decision. In addition, EPA may in its discretion include a copy of this Amendment to the Consent Decree and other relevant information. ++EP++

Page 11

EPA will seek government to government consent to the shipment from Sweden and from each Country of Transit.

b. In the Notification, Boliden shall provide sufficient data as to PCB content, and as to the metal content expressed in terms of total metals, of the export parcel to allow adequate notification under the provisions of the OECD Council Decision Section V and Appendix 2. Boliden represents that the assays appended hereto as Exhibit D contain true and correct statements of the metal content of the export parcel.

c. Boliden shall not export the export parcel until it has received EPA's acknowledgement of Sweden's consent to import the export parcel, and the consent of each Country of Transit, in response to the notification described in subparagraphs a and b.

14. A tracking document meeting the information requirements as provided in OECD Council Decision Appendix 2.B, with a copy of EPA's acknowledgement of consent pursuant to Paragraph 13.c attached, shall accompany the shipment. The tracking documents also will include a description of the export parcel, which description shall include at a minimum

a. a statement of the PCB concentration in the export parcel, and

b. the information regarding the metals content of the export parcel that is set forth in the assays mentioned in subparagraph 13.b and appended hereto as Exhibit D. ++EP++

Page 12

A copy of such tracking documents shall be delivered by Boliden to United States Customs upon exit of the shipment from the United States.

15. Prior to exporting the material, Boliden and Boliden Mineral shall provide written certification that they either have a valid written contract or chain of contracts, or other equivalent arrangements between parties controlled by the same legal entity, governing the shipment. Such contract or arrangement shall specify which party shall assume responsibility for alternate management of the export parcel if so required, and shall specify that Boliden and Boliden Mineral will notify EPA if one of them re-exports the export parcel from Sweden to either the United States or any other OECD nation, pursuant to OECD Sections IV(1) & IV(4)(c). The contract or arrangement described in this Paragraph shall not permit the re-export of the export parcel to any nation that is not an OECD nation.

16. In shipping the export parcel, Boliden and its transporters shall comply with the TSCA storage and marking requirements, 40 C.F.R. Sub-Section 761.40, 761.45, & 761.65, and any other applicable federal law or regulations. Boliden will provide to EPA copies of all transportation and manifest documents generated by either Boliden or Boliden Mineral at all stages of the shipment of the export parcel, including while the material is in Sweden en route to the Ronnskar Facility.

17. Boliden shall pack and transport the export parcel in polypropylene transport bags with waterproof liners as described in correspondence from Boliden's counsel to the Justice Department dated February 24, April 28 and May 11, 1992, which correspondence is appended hereto as Exhibits E, F and G. Such bags will be filled inside the former shredder building at the Facility. ++EP++

Page 13

Such bags then will be loaded into sea/rail shipping containers. The export parcel shall remain in the transport bags, and the transport bags shall remain in the sea/rail shipping containers, at all times in the shipping process. Boliden will cause the transport bags to be inspected upon arrival at the Ronnskar Facility, and will report to EPA regarding the integrity of the transport bags, including the number and extent of transport bag punctures, if any, occurring en route from Boliden's Facility to the Ronnskar Facility.

18. Once the export parcel leaves the Facility, the export parcel shall not be stored at other places within the United States for more than a total of thirty (30) days.

19. Once loaded into the transport bags and shipping containers, the export parcel shall be delivered by truck to the Port from which the export parcel will leave the United States.

20. Upon arrival at the Port, the shipping containers shall be loaded on a ship as soon as possible.

21. Boliden shall take all reasonable actions within its power to ensure that the interval between loading the ship and the time of sailing of the ship is not greater than thirty (30) days. ++EP++

Page 14

22. Boliden shall take all reasonable actions within its power to ensure that the containers holding the transport bags containing the export parcel shall be grouped together in the ship.

23. The containers holding the export parcel shall not be unloaded from the ship in any place other than in Sweden, and shall be unloaded there only for the purpose of transferring the containers to a train that will transport the material to the Ronnskar Facility.

24. Boliden shall not select a ship for transport of the export parcel that has plans to transit the territorial waters of any nation other than OECD Member countries.

25. Boliden, or its designee approved in advance in writing by EPA, will as frequently as is practicable observe the export parcel during all phases of shipping in order to detect promptly any leak of the export parcel from either the transport bags or the containers.

26. If any of the export parcel spills or leaks into the environment or any other place, Boliden shall recover all of the export parcel that leaked, clean up any resulting contamination, and decontaminate all areas with which the export parcel came into contact, in accordance with the PCB Spill Cleanup Policy, 40 C.F.R. Part 761 Subpart G. Boliden will notify EPA telephonically or by telecopier of any spill or leak of any portion of the export parcel immediately, but in no event later than one hour after learning of the spill or leak. ++EP++

Page 15

27. a. Ten days prior to starting to load the export parcel into the transport bags, Boliden shall deliver to EPA notice in writing of (1) the date on which such loading will commence; (2) the date on which the shipment containers will leave the facility; (3) the dates on which such containers will be loaded on a ship at the Port; (4) the name, ownership, and registry of the ship that will carry the export parcel; (5) the date on which the ship will leave the Port; (6) the date(s) on which the ship is expected to (a) arrive at and depart from any Country of Transit; (b) arrive in Sweden and (c) be admitted into Sweden; (7) the date on which the export parcel will arrive at the Ronnskar Facility; and (8) the date or dates on which the export parcel will be smelted.

b. Within twenty-four hours after completion of each of the acts described in subparagraph (a), Boliden shall telecopy notice of such completion to EPA.

28. Boliden or Boliden Mineral shall deliver to EPA all results of monitoring, sampling and/or analysis that is required to be generated under the terms of the Import Permit or that is otherwise required by the Swedish government, along with a description of the methods used for such monitoring, sampling and/or analysis. Boliden shall provide EPA with a certified English translation of all materials required by this paragraph.

29. Boliden and Boliden Mineral shall permit EPA officials or their designees to observe at any reasonable time and place all phases of the loading, shipping and smelting of the export parcel. ++EP++

Page 16

30. Boliden shall retain title and ownership of the export parcel at least until Boliden Mineral accepts delivery of the export parcel. Boliden shall continue to exercise control over the export parcel, to the extent consistent with normal custom and practice in the shipping business, until Boliden Mineral takes possession of the material.

31. All required notices and certification concerning the export of the export parcel shall be directed to:

Marvin Rosenstein, Chief

Pesticides and Toxic Substances Branch

U.S. Environmental Protection Agency -- Region I

J.F.K. Federal Building

Boston, Massachusetts 02203

Telephone Number: (617) 565-3273

Michael Kenyon, Esq.

Assistant Regional Counsel

U.S. Environmental Protection Agency -- Region I

J.F.K. Federal Building

Boston, Massachusetts 02203

Telephone Number: (617) 565-1137

Office of Waste Programs Enforcement (OS-520)

U.S. Environmental Protection Agency

401 M Street, S.W.

Washington, D.C. 20460

Attention: Notification to Export

Chief, Environmental Enforcement Section

Environment and Natural Resources Division

U.S. Department of Justice

P.O. Box 7611, Ben Franklin Station

Washington, D.C. 20044

DJ Ref. No. 90-5-1-1-3096

VII. TERMINATION

32. This Amendment to the Consent Decree shall terminate upon the completion of the smelting of the export parcel. ++EP++

Page 17

The 1991 Decree shall terminate upon the later of (1) completion of smelting of the export parcel, or (2) the time for termination of the 1991 Decree pursuant to Section XXII.2 of the 1991 Decree.

VIII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

33. Boliden consents to the entry of this Amendment to the Consent Decree without further notice. The United States consents to entry of this Amendment to the Consent Decree, subject to the provisions of 28 C.F.R. Section 50.7, requiring publication and an opportunity for public comment. The United States reserves the right to withdraw its consent to entry of this Amendment to the Consent Decree based on public comment received. All written comments received, along with any responses by the United States to those comments, will be provided to the Court with the motion of the United States for judicial action on this Amendment to the Consent Decree.

SO ORDERED THIS DAY OF , 1993.

United States District Judge ++EP++

Page 18

The undersigned parties enter into this Consent Decree

FOR THE UNITED STATES OF AMERICA:

/s/ Myles E. Flint

MYLES E. FLINT

Acting Assistant Attorney General

Environment & Natural Resources Division

United States Department of Justice

10th & Constitution Avenue, N.W.

Washington, D.C. 20530

DATE 3/24/93

/s/ Fred R. Disheroon

FRED R. DISHEROON

Special Litigation Counsel

Environment & Natural Resources Division

United States Department of Justice

10th & Constitution Avenue, N.W.

Washington, D.C. 20530

DATE 3/24/93

/s/ Robert E. Maher Jr

ROBERT E. MAHER, JR., Attorney

Environmental Enforcement Section

Environmental & Natural Resources Division

United States Department of Justice

P.O. Box 7611

Ben Franklin Station

Washington, D.C. 20044

DATE 3/24/93 ++EP++

Page 19

Acting Assistant Administrator for Enforcement

U.S. Environmental Protection Agency

Washington, D.C. 20460 ++EP++

Page 20

FOR THE DEFENDANT:

Name:

Title:

Boliden Metech, Inc. ++EP++

EXH 1-i List of Exhibits

A. Organization for Economic Cooperation and Development ("OECD") Council Decision on the Control of Transfrontier Movements of Wastes Destined for Recovery Operations (C(92)39/Final) (March 30, 1992) ("OECD Council Decision")

B. Swedish Import Permit

C. English Translation of Swedish Import Permit

D. Assays of Metals Content of Export Parcel

E. Correspondence from Boliden's counsel to the Justice Department (February 24, 1992)

F. Correspondence from Boliden's counsel to the Justice Department (April 28, 1992)

G. Correspondence from Boliden's counsel to the Justice Department (May 11, 1992) ++EP++

EXH A-1

ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT

GENERAL DISTRIBUTION

Paris, drafted: 06-APR-1992

OLIS: 06-Apr-1992

dist.: 08-Apr-1992

C(92)39/FINAL

Or. Eng./Fre.

COUNCIL DECISION OF THE COUNCIL

concerning the control of transfrontier movements of wastes destined for recovery operations/*/

((/*/ Japan abstained.))

(adopted by the Council at its 778th Session on 30th March 1992) ++EP++

EXH A-2

THE COUNCIL,

Having regard to Article (5a) of the Convention on the Organisation for Economic Co-operation and Development of 14 December 1960;

Having regard to the Decision and Recommendation of the Council of 1 February 1984 on Transfrontier Movements of Hazardous Waste C(83)180(Final) which requires Member countries to control transfrontier movements of hazardous wasters;

Having regard to the Decision of the Council of 27 May 1988 on Transfrontier Movements of Hazardous Wastes C(88)90(Final) which defines "waste", identifies those wastes referred to as hazardous wastes in relevant Council Acts, and sets out a classification system for wastes subject to transfrontier movements;

Having regard to the Decision-Recommendation of the Council of 31 January 1991 on the Reduction of Transfrontier Movements of Wastes C(90)178/FINAL which, inter alia, calls for delineation of such controls as may be appropriate for the transfrontier movement of wastes destined for recovery operations, clarification of the definition of such wastes and characterization of those wastes which may require differing levels of control;

Having regard to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, adopted on 22 March 1989, and noting that most Member countries and the European Economic Community have become signatories to this Convention;

Desiring to conclude an arrangement or agreement under Article 11 of that Convention;

Noting that recovery of valuable raw materials from wastes has been an integral part of the international economic system and that well established international markets exist for the collection and processing of such wastes;

Nothing further that many industrial sectors are already implementing waste recovery techniques in an economically and environmentally satisfactory manner, thus protecting limited virgin sources of raw materials, and convinced that further efforts in this direction are necessary and should be encouraged; ++EP++

EXH A-3

Recognizing that efficient and environmentally sound management of wastes may justify some transfrontier movements of such wastes in order to make use of adequate recovery facilities in other countries;

Convinced however that, pursuant to the obligations set forth in the relevant Council Acts and compatible with the provisions of the Basel Convention, an appropriate system should be implemented to control transfrontier movements of those wastes destined for recovery operations;

Convinced that all persons involved in any contracts or arrangements for transfrontier movements of wastes destined for recovery operations must have the appropriate legal status to ensure environmentally sound management of these wastes; and Recognizing that work is now in progress within the United Nations Environment Programme concerning the environmentally sound management of hazardous waste.

On the proposal of the Environment Committee:

I. DECIDES that Member countries shall control transfrontier movements of wastes destined for recovery operations within the OECD area as specified in Annex 1 which is an integral part of this Decision.

II. INSTRUCTS the Environment Committee in co-operation with other relevant OECD bodies, in particular the Trade Committee, to review periodically the control system and the lists of wastes set out in Annex 1, taking into account the criteria listed in Annex 2, and to make any proposals it deems necessary for revisions of Annex 1.

III. INSTRUCTS the Environment Committee in co-operation with other relevant OECD bodies to review annually action taken by Member countries in pursuance of this Decision.

IV. REQUESTS the Secretary General to transmit this Decision to the Executive Director of the United Nations Environment Programme and the Interim Secretariat of the Basel Convention. ++EP++

ANN 1-1 Annex 1 I. DEFINITIONS

For the purposes of this Decision:

WASTES are as defined in OECD Council Decision C(88)90(Final) of 27 May 1988.

RECOVERY OPERATIONS mean activities leading to resource recovery, recycling, reclamation, direct re-use or alternative uses as listed in Table 2B of the Annex of OECD Council Decision C(88)90(Final) of 27 May 1988.

TRANSFRONTIER MOVEMENT means any shipment of wastes destined for recovery operations from an area under the national jurisdiction of one OECD Member country to an area under the national jurisdiction of another OECD Member country.

RECOVERY FACILITY means an entity which, under applicable domestic law, is operating or is authorized to operate in the importing country to receive wastes and to perform recovery operations on them.

INTERNATIONAL WASTE IDENTIFICATION CODE ("IWIC") is the classification system specified and described in OECD Council Decision C(88)90(Final) of 27 May 1988.

EXPORTING COUNTRY means any OECD Member country from which a transfrontier movement of wastes is planned or has commenced.

IMPORTING COUNTRY means any OECD Member country to which a transfrontier movement of wastes is planned or takes place for the purpose of submitting the wastes to recovery operations therein.

COUNTRY OF TRANSIT means any OECD Member country other than the exporting or importing country across which a transfrontier movement of wastes is planned or takes place.

CONCERNED COUNTRIES means the exporting and importing OECD Member countries and any OECD Member countries of transit.

OECD AREA means all land or marine areas under the national jurisdiction of any OECD Member country.

COMPETENT AUTHORITIES means the regulatory authorities of concerned countries having jurisdiction over transfrontier movements of wastes destined for recovery operations. ++EP++

ANN 1-2

PERSON means any natural or legal person whether public or private.

NOTIFIER means the person under the jurisdiction of the exporting country who has, or will have at the time the planned transfrontier movement commences, possession or other forms of legal control of the wastes and who proposes their transfrontier movement for the ultimate purpose of submitting them to recovery operations.

CONSIGNEE means the person to whom possession or other form of legal control of the waste is assigned at the time the waste is received in the importing country.

RECOGNIZED TRADER means a person who, with appropriate authorisation of concerned countries, acts in the role of principal to purchase and subsequently sell wastes; this person has legal control of such wastes from time of purchase to time of sale; such a person may act to arrange and facilitate transfrontier movements of wastes destined for recovery operations.

GENERATOR means a person whose activities create wastes.

II. GENERAL PROVISIONS

(1) All of the following conditions shall apply to transfrontier movements of wastes subject to this Decision:

(a) The wastes shall be destined for recovery operations within a facility which, under applicable domestic law, is operating or is authorized to operate in the importing country;

(b) The transfrontier movements shall be carried out under terms of applicable international transport agreements. (Appendix 1 contains an illustrative list of such agreements);

(c) Any transit of waste through a non-member country shall be subject to all applicable international and national laws and regulations. ++EP++

ANN 1-3

(2) A three-tiered system serves to delineate controls to be applied to such transfrontier movements:

(a) "Green" Tier Wastes destined for recovery operations included on the green list shall move among OECD Member countries toward recovery operations subject to all existing controls normally applied in commercial transactions. These provisions shall not apply to wastes on this list which are contaminated by other materials to an extent which increases the risk associated with the wastes sufficiently to render them appropriate for inclusion in the amber or red lists, when taking into account the criteria in Annex 2.

(b) "Amber" Tier Wastes destined for recovery operations included in the amber list shall be subject to the control system set out in Section IV of this Annex.

(c) "Red" Tier Wastes destined for recovery operations included in the red list shall be subject to the controls indicated in Section V of this Annex.

(3) The criteria listed in Annex 2 must be taken into account for evaluating wastes for inclusion on the green, amber or red lists. In accord with provisions of this Decision, items may be added, altered or deleted periodically. Subject to Section III (2) no single criterion shall be used in isolation in assigning wastes to the lists.

(4) While the lists are intended to be exclusive, a specific waste included in either the amber or red lists might not be legally defined or considered to be a hazardous waste in the exporting country because the competent authorities of that country are satisfied that it does not exhibit any of the hazardous characteristics listed in Table 5 of OECD Council Decision C(88)90(Final) as determined using national procedures./1/

((/1/ The potential hazards posed by certain types of wastes are not yet fully documented; tests to define quantitatively these hazards do not exist. Further research is necessary in order to develop means to characterize potential hazards posed to man and/or the environment by these wastes. Standardized tests have been derived with respect to pure substances and materials. Many Member countries have developed tests which can be applied to materials destined for disposal by means of operations listed in Table 2 of OECD Council Decision C(88)90(Final) in order to decide if these materials exhibit any of the hazardous characteristics listed in Table 5 of that Decision.)) ++EP++

ANN 1-4

If, however, this waste is legally defined or considered to be a hazardous waste by the importing country, then all of the requirements set forth in Section IV or Section V -- whichever is applicable -- shall apply as follows: the importing country shall assume the obligations of the exporting country under these Sections, in particular as regards the notification requirements. A copy of the notification form must be transmitted to the competent authorities of the exporting country. Member countries operating under provisions of this paragraph shall promptly inform the OECD Secretariat of the waste(s) involved and applicable legislative requirements.

(5) Member countries who prescribe the use of certain tests and testing procedures in order to determine whether a waste exhibits one or more of the hazardous characteristics listed in Table 5 of OECD Council Decision C(88) 90 (Final) shall inform the OECD Secretariat concerning which tests and testing procedures are being so utilized; and, if possible, which wastes would or would not be legally defined or considered to be hazardous wastes based upon application of these national procedures.

(6) This Decision does not prejudice the right of Member countries to control certain wastes which have been assigned to the green list as if those wastes had been assigned to one of the other lists, in conformity with domestic legislation and the rules of international law, in order to protect human health and the environment. In such cases, Member countries exercising this right shall immediately inform the OECD secretariat citing the specific waste(s) and applicable legislative requirements.

(7) Wastes which are destined for recovery operations but have not yet been assigned to the green, amber or red lists shall be eligible for transfrontier movements pursuant to this Decision subject to the following conditions:

i) Member countries shall identify such wastes and bring them to the attention of the review mechanism established by operative paragraphs II and III of this Decision;

ii) such wastes shall be promptly examined by the Review Mechanism in order to assign them to the appropriate list; ++EP++

ANN 1-5

iii) pending assignment to a list, such wastes shall be subject to the controls required for the transfrontier movements of wastes by the domestic legislation of the concerned countries in order that no country is obliged to enforce laws other than its own;

iv) however, if such wastes exhibit a hazardous characteristic listed in Table 5 of OECD Council Decision C(88)90(Final) as determined using national procedures and any applicable international agreements, such wastes shall be subject to controls applicable to the red tier.

(8) If two or more lots of wastes are mixed and/or otherwise subjected to physical or chemical transformation operations, the person who performs these operations shall be deemed to be the generator of the new wastes resulting from these operations.

III. GREEN TIER

(1) Specific items included in the green list are shown under their corresponding main categories. Only the items specified under a main category and not the main categories themselves are part of the green list.

(2) Wastes may not be included in the green list if they exhibit any of the hazardous characteristics listed in Table 5 of OECD Council Decision C(88)90(Final). The procedures in force in each Member country for determining whether a specific waste does or does not exhibit one or more of these characteristics are taken into account in placing or not placing a waste onto the green list.

(3) If green list wastes are re-exported, responsibilities of the exporting country under other relevant agreements or conventions shall transfer to the country initiating the re-export, and shall not apply to the original exporting country.

(4) Green list of wastes

The green list of wastes is set out at Appendix 3.

IV. AMBER TIER ++EP++ ANN 1-6 (1) Conditions

Transfrontier movements of wastes under the amber control system may only occur under the terms of a valid written contract, or chain of contracts, or equivalent arrangements between facilities controlled by the same legal entity, starting with the notifier and terminating at the recovery facility. All persons involved in the contracts, or arrangements shall have appropriate legal status.

Such contracts shall include provisions for financial guarantees in accordance with applicable national or international law requirements. Financial guarantees so required are intended to provide for alternate recycling, disposal or other means of sound management of the wastes in cases where arrangements for the shipment and the recovery operations cannot be carried out as foreseen. These contracts shall also specify which party to the contract shall assume responsibility for alternate management of the wastes. These contracts shall also specify and, as the case may be, require from the consignee the notification required in 3(a) below (Re-export to a Third Country).

In such cases:

i) the person having actual possession or physical control over the wastes shall immediately inform the notifier and the competent authorities of the exporting and importing countries and, if the wastes are located in a country of transit, the competent authorities of that country;

ii) the person specified in the contract shall assume responsibility for the adequate management of the wastes in compliance with applicable laws and regulations including, if necessary, their return. The competent authorities of the concerned countries shall require that the necessary actions are carried out within a limited period of time, and shall not oppose, hinder or prevent the return of those wastes to the exporting country.

(2) Control System

Procedures are provided under the amber control system for the following two cases: ++EP++

ANN 1-7

(i) transactions which require consent for specific shipments to a recovery facility; and

ii) transactions involving specific recovery facilities to which the competent authorities having jurisdiction over such recovery facilities have granted general preconsent concerning the reception of certain wastes.

Case (1): Provisions concerning transactions requiring specific consent.

(a) Prior to commencement of the transfrontier movement the notifier shall provide written notification to the competent authorities of the concerned countries; this notification shall include all of the information listed in Appendix 2.A. The competent authorities of the exporting country may, in accord with domestic laws, decide to transmit this notification instead of the notifier.

(b) The competent authorities of the importing country, upon receipt of the completed notification referred to in paragraph (a) above, shall transmit an acknowledgement to the notifier with a copy to the competent authorities of other concerned countries within three (3) working days of their receiving the notification.

(c) The competent authorities of the exporting and importing countries shall have thirty (30) days to object in accord with their respective domestic laws to the proposed transfrontier movement. The 30-day period shall commence upon issuance of the acknowledgement referred at paragraph (b) above.

(d) Countries of transit may, in accord with domestic laws, object to the transfrontier movement entering their territory.

(e) Any objection by any of the concerned countries must be provided in writing to the notifier and to the competent authorities of other concerned countries within the 30-day period.

(f) If no objection has been lodged, the transfrontier movement may commence after the 30-day period has passed. Tacit consent, however, expires within one (1) calendar year from that date. ++EP++

ANN 1-8

(g) The competent authorities of the concerned countries may decide to provide written consent in a period less than the 30 days. The transfrontier movement may commence immediately after all necessary consents are received.

(h) Written consent or objection may be provided by post, or by telefax followed by post. Such consent shall expire within one (1) calendar year unless otherwise specified.

(i) Each transfrontier movement shall be accompanied by a tracking document which includes the information listed in Appendix 2.

(j) Within three (3) days of the receipt of the wastes by the recovery facility, the recovery facility shall provide a signed copy of the tracking document to the notifier and to the competent authorities of the concerned countries. The recovery facility shall retain the original of the tracking document for three (3) years.

(k) In cases where essentially similar wastes (e.g. those having essentially similar physical and chemical characteristics) are to be sent periodically to the same recovery facility by the same notifier, the competent authorities of the concerned countries may elect to accept one notification for these wastes for a period of up to one year:

i) Such acceptance may be renewed for further periods of up to one year each;

ii) Revocation of this acceptance may be accomplished by means of official notice to the notifier from any of the competent authorities of the concerned countries. Notice of revocation of acceptance for shipments previously granted under this provision shall be given to the competent authorities of all concerned countries by the competent authorities of the country that revokes such acceptance.

Case (2): Provisions relating to pre-consent by competent authorities for shipments to specific recovery facilities.

(a) Competent authorities having jurisdiction over specific recovery facilities may decide not to raise objections concerning shipments of certain types of wastes to a specific recovery facility. ++EP++

ANN 1-9

Such decisions can be limited to a specified period of time; however, they may be revoked at any time.

(b) Competent authorities who elect this option shall inform the OECD Secretariat of the recovery facility name, address, technologies employed, waste types to which the pre-consent applies, and the period covered. Any revocations must also be notified to the OECD Secretariat.

(c) All proposed transfrontier movements to such facilities shall require notification; the notifier shall provide to the competent authorities of the concerned countries the information listed in Appendix 2.A. Such notification shall arrive prior to the time the shipment is dispatched.

(d) The competent authorities of the exporting and transit country may, in accord with their domestic laws, prohibit or otherwise restrict any such transfrontier movement.

(e) In instances where competent authorities acting under terms of their domestic laws are required to review the contracts referred to in (1) above (Conditions), these authorities shall so inform the OECD Secretariat. In such cases, the notification information plus the contract(s) or portions thereof to be reviewed must arrive seven (7) days prior to the time the shipment is dispatched in order that such review may be appropriately performed.

(f) Paragraphs (i), (j) and (k) of Case (1) shall apply.

(3) Additional provisions relating to re-export to a third country

(a) Re-export from an importing country of wastes subject to the amber control system may only occur following notification by a notifier in the importing country to the competent authorities of the initial exporting country, which shall be acknowledged within three (3) working days of receipt. The competent authorities of the initial exporting country shall have thirty (30) days to object to the proposed movement. The 30-day period shall commence upon issue of the acknowledgement referred to above. ++EP++

ANN 1-10

If no objection has been lodged, the transfrontier movement may commence after the 30-day period has passed. The competent authorities may decide to provide written consent in a period of less than 30 days. The transfrontier movement may commence immediately after such consent is received. Written consent may be provided by telefax in the first instance, followed by post if required.

(b) Re-export to a country outside the OECD area shall be fully subject to, and in accord with, all international agreements and arrangements to which the importing OECD Member country is a party.

(4) Provisions relating to recognized traders

(a) A recognized trader who takes physical custody of the wastes and intends to perform any of the operations in Table 2B of OECD Council Decision C(88) 90 (Final) shall require appropriate authorisation from its competent authorities to act as a recovery facility.

(b) A recognized trader may act as a notifier or consignee for wastes with all the responsibilities associated with being a notifier or consignee.

(c) The contracts referred to in (1) above (Conditions) shall:

i) clearly identify: the generator of each type of waste; each person who shall have physical custody of the wastes; each person who shall have legal control of the wastes; and the recovery facility;

ii) provide that all requirements of this Decision are taken into account and are legally binding on all parties to the contracts.

(d) The notification information called for at Appendix 2A shall include a signed declaration by the notifier that the appropriate contracts are in place and are legally enforceable in all concerned countries.

(e) Competent authorities of the exporting and importing countries may under terms of their domestic laws require the notifier to provide copies of such contracts or portions thereof. ++EP++

ANN 1-11

(f) Any information contained in the contracts provided under terms of paragraph (e) above shall be held as strictly confidential in accordance with, and to the extent allowable by, domestic laws.

(5) Provisions relating to wastes designated for exchange or accumulation prior to submission to recovery operations designated R1-R11 in Table 2B of OECD Council Decision C(88) 90 (Final)

(a) The notification information included in Appendix 2A shall also indicate that exchange or storage is foreseen for the wastes covered by the notification.

(b) The competent authorities of concerned countries may request that the recovery facility where operations designated R1-R11 in Table 2B of Council Decision C(88) 90 (Final) will occur be identified.

(c) The tracking document referred to in Appendix 2B shall accompany the wastes to the recovery facility noted in paragraph (b) above which shall then comply with paragraph (j) of (2) above (Control System).

(6) Amber list of wastes

The amber list of wastes is set out at Appendix 4.

V. RED TIER

(1) The red list represents certain specific substances which, even moved in an adequately managed way, nevertheless must be controlled in a more stringent way than provided for by the amber control system. Wastes included in the red list shall be subject to the same controls as applied to wastes included in the amber list (see Section IV), and shall move in accord with Case (1), except that the importing and any transit countries must provide written consent prior to commencement of the transfrontier movement.

(2) Red list of wastes

The red list of wastes is set out at Appendix 5. ++EP++

ANN 1-12 VI. ACTIONS TO PROMOTE HARMONIZED IMPLEMENTATION

(1) Member countries individually, and as a group acting through the Review Mechanism established in this Decision, shall take appropriate steps toward improving the green, amber and red lists of wastes and toward uniform application of this Decision.

(2) Member countries shall cooperate in efforts aimed at:

i) developing procedures for evaluating the criteria in Annex 2 to determine to which list a waste should be assigned; and

ii) harmonizing procedures for determining whether a waste exhibits any of the hazardous characteristics listed in Table 5 of OECD Council Decision C(88) 90 (Final).

(3) Member countries shall cooperate to identify and assess steps taken toward optimization of environmentally sound and economically efficient practices for recovery operations of each waste.

(4) When Sections II(4), II(6) and II(7) must be resorted to, Member countries shall cooperate to ensure that the provisions of this Decision are fully complied with.

(5) The OECD Secretariat shall circulate to all Member countries the information provided in accordance with this Decision, in particular under Sections II(4), II(5), II(6) and II(7). ++EP++

ANN1/APP 1-1 Appendix 1 INTERNATIONAL TRANSPORT AGREEMENTS

1. Chicago Convention:

Convention on International Civil Aviation (1944) Annex 18 which deals with the carriage of dangerous goods by air (T.I.: Technical Instructions for the Safe Transport of Dangerous Goods by Air);

2. ADR:

European Agreement concerning the International Carriage of Dangerous Goods by Road (1957);

3. ADNR:

Regulations of the Carriage of Dangerous Substances on the Rhine (1970);

4. MARPOL Convention:

International Convention for the Prevention of Pollution from Ships (1973/1978);

5. SOLAS Convention:

International Convention for the Safety of Life at Sea (1974);

6. IMDG Code:

International Maritime Dangerous Goods Code (incorporated into SOLAS since 1985);

7. COTIF:

Convention concerning the International Carriage of Goods by Rail (1985);

8. RID:

Regulation on the International Carriage by Rail of Dangerous Goods (1985) Annex I to COTIF ; ++EP++

ANN1/APP 2-1 Appendix 2 NOTIFICATION AND TRACKING INFORMATION A. INFORMATION TO BE SUBMITTED UPON NOTIFICATION

1) Serial number or other accepted identifier of notification form.

2) Notifier name, address, telephone, telefax.

3) Recovery facility name, address, telephone, telefax, and technologies employed.

4) Consignee if not the recovery facility, address, telephone, telefax.

5) Intended carrier(s) and/or their agents.

6) Country of export and relevant competent authority.

7) Countries of transit and relevant competent authorities.

8) Country of import and relevant competent authority.

9) Is this a single notification or a general notification? If general, period of validity requested.

10) Date foreseen for commencement of transfrontier movement.

11) Certification that any applicable insurance or other financial guarantee is or shall be in force covering the transfrontier movement.

12) Designation of waste type(s) on the appropriate list (amber or red) and their description(s), probable total quantity of each, and an accepted uniform classification code (such as the IWIC) for each.

13) Certification of the existence of written contract or chain of contracts or equivalent arrangement as required by this Decision.

14) Certification by notifier that the information is complete and correct to the best of his knowledge. ++EP++

ANN1/APP2-2 B. TRACKING DOCUMENT

Include all information at A. above plus:

(a) Date shipment was dispatched

(b) Shipper (if not notifier), address, telephone, telefax

(c) Actual carrier(s)

(d) Means and mode of transport including types of packaging

(e) Any special precautions to be taken by carrier(s)

(f) Declaration by notifier that no objection has been lodged by the competent authorities of all concerned countries. This declaration requires signature of the notifier.

(g) Appropriate signatures for each custody transfer.

C. ALL OF THIS INFORMATION SHALL BE PROVIDED ON A FORM

TO BE DEVELOPED FOR USE WITHIN THE OECD AREA

D. NOTE: Under terms of domestic legislation, some Member countries require information in addition to that included in A and B above in order to assess aspects of the environmentally sound management of wastes. Affected countries shall inform the OECD Secretariat and provide a list of the additional information needed. ++EP++

ANN1/APP2-3 GREEN LIST OF WASTES/+/

((/+/Whenever possible, the Harmonized Commodity Description and Coding System, established by the Brussels Convention of 14th June 1983 under the auspices of the Customs Co-operation Council (hereinafter Harmonized Customs Code) is listed opposite an entry. This code may apply to both wastes and products. This Decision does not include items which are not wastes. Therefore, the code -- used by customs officials in order to facilitate their procedures as well as by other -- is only provided here to help in identifying wastes that are listed and subject to this Decision. However, corresponding official explanatory notes as issued by the Customs Cooperation Council should be used as interpretative guidance to identify wastes covered by generic headings. The indicative "ex" identifies a specific item contained within the Harmonized Customs Code heading.))

(revised October 1992)

Regardless of whether or not wastes are included on this list, they may not be moved as Green Tier wastes if they are contaminated by other materials to an extent which (a) increases the risks associated with the waste sufficiently to render it appropriate for inclusion in the amber of red lists, when taking into account the criteria in Annex 2, or (b) prevents the recovery of the waste in an environmentally sound manner.

GA. A. METALS AND METAL-ALLOY WASTES IN METALLIC, NON

DISPERSIBLE FORM ++

((/++/ "Non-dispersible" does not include any wastes in the form of powder, sludge, dust or solid items containing encased hazardous waste liquids.))

The following waste and scrap of precious metals and their alloys:

GA010 ex 711210 - of gold GA020 ex 711220 - of platinum (the expression "platinum" includes platinum, iridium, osmium, palladium, rhodium and ruthenium) GA030 ex 711290 - of other precious metal, e.g., silver

N.B. Mercury is specifically excluded as a contaminant of these metals or their alloys or amalgams.

The following ferrous waste and scrap of iron or steel:

GA040 720410 - Waste and scrap of cast iron GA050 720421 - Waste and scrap of stainless steel GA060 720429 - Waste and scrap of other alloy steels GA070 720430 - Waste and scrap of tinned iron or steel

++ET++

ANN 1/APP2-4 GA080 ex 720441 - Turnings, shavings, chips, milling waste, filings, trimmings and stampings, whether or not in bundles GA090 720449 -Other ferrous waste and scrap GA100 720450 -Remelting scrap ingots GA110 ex 730210 -Used iron and steel rails

The following waste and scrap of non-ferrous metals and their alloys:

GA120 740400 Copper waste and scrap GA130 750300 Nickel waste and scrap GA140 760200 Aluminum waste and scrap GA150 ex 780200 Lead waste and scrap GA160 790200 Zinc waste and scrap GA170 800200 Tin waste and scrap GA180 ex 810191 Tungsten waste and scrap GA190 ex 810291 Molybdenum waste and scrap GA200 ex 810310 Tantalum waste and scrap GA210 810420 Magnesium waste and scrap GA220 ex 810510 Cobalt waste and scrap GA230 ex 810600 Bismuth waste and scrap GA240 ex 810710 Cadmium waste and scrap GA250 ex 810810 Titanium waste and scrap GA260 ex 810910 Zirconium waste and scrap GA270 ex 811000 Antimony waste and scrap GA280 ex 811100 Manganese waste and scrap GA290 ex 811211 Beryllium waste and scrap GA300 ex 811220 Chromium waste and scrap GA310 ex 811230 Germanium waste and scrap GA320 ex 811240 Vanadium waste and scrap ex 811291 Wastes and scrap of GA330 - Hafnium GA340 - Indium GA350 - Niobium GA360 - Rhenium GA370 - Gallium GA380 - Thallium GA390 ex 284430 - Thorium waste and scrap GA400 ex 280490 - Selenium waste and scrap ++EP++ ANN1/APP2-5 GA410 ex 280450 - Tellurium waste and scrap GA420 ex 280530 - Rare earths waste and scrap GB B. METAL BEARING WASTES ARISING FROM MELTING,

SMELTING AND REFINING OF METALS

GB010 262011 Hard zinc spelter GB020 Zinc containing drosses: GB021 - Galvanizing slab zinc top dross (>90% Zn) GB022 - Galvanizing slab zinc bottom dross (>92% Zn) GB023 - Zinc die casting dross (>85% Zn) GB024 - Hot dip galvanizers slab zinc dross (batch) (>92% Zn) GB025 - Zinc skimmings GB030 Aluminum skimmings GB040 ex 262090 Slags from precious metals and copper

processing further refining

GC C. OTHER WASTES CONTAINING METALS GC010 Electrical assemblies consisting only of metals or alloys GC020 Electronic scrap (e.g., printed circuit boards, electronic components, wire, etc.) and reclaimed electronic components suitable for base and precious metal recovery GC030 ex 890800 Vessels and other floating structures for breaking up, properly emptied of any cargo and other materials arising from the operation of the vessel which may have been classified as a dangerous substance or waste GC040 Motor vehicle wrecks, drained of liquids GC050 Spent catalysts: - fluid catalytic cracking (FCC) catalysts - precious metal bearing catalysts transition metal catalysts (e.g., chromium, cobalt, copper, iron, nickel, manganese, molybdenum, tungsten, vanadium, zinc). ++EP++ ANN1/APP2-6 GC060 261800 Granulated slag arising from the manufacture of iron and steel GC070 ex 261900 Slag arising from the manufacture of iron or steel/*/

((/*/ This entry covers the use of such slags as a source of titanium dioxide and vanadium.))

GD D. WASTES FROM MINING OPERATIONS: THESE WASTES TO BE

IN NON-DISPERSIBLE FORM

GD010 EX 250490 Natural graphite waste GD020 ex 251400 Slate waste, whether or not roughly trimmed or merely cut, by sawing or otherwise GD030 252530 Mica waste GD040 ex 252930 Leucite, nepheline and nepheline syenite waste GD050 ex 252910 Feldspar waste GD060 ex 252921 Fluorspar waste ex 252922

GD070 ex 281122 Silica wastes in solid form excluding those used

in foundry operations GE E. GLASS WASTE IN NON-DISPERSIBLE FORM GE010 ex 700100 Cullet and other waste and scrap of glass except for glass from cathode-ray tubes and other activated glasses GE020 Fibre glass wastes ++EP++ ANN1/APP2-7

GF F. CERAMIC WASTES IN NON-DISPERSIBLE FORM

GF010 Ceramic wastes which have been fired after shaping, including ceramic vessels (before and/or after use) GF020 ex 811300 Cermet wastes and scrap (metal ceramic composites) GF030 Ceramic based fibres not elsewhere specified or included GG G. OTHER WASTES CONTAINING PRINCIPALLY INORGANIC

CONSTITUENTS, WHICH MAY CONTAIN METALS AND ORGANIC

MATERIALS

GG010 Partially refined calcium sulphate produced from flue gas desulphurisation (FGD) GG020 Waste gypsum wallboard or plasterboard arising from the demolition of buildings GG030 ex 2621 Bottom ash and slag tap from coal fired power plants GG040 ex 2621 Coal fired power plants fly ash GG050 Anode butts of petroleum coke and/or bitumen GG060 ex 2803 Spent activated carbon GG070 310320 Basic slag arising from the manufacture of iron or steel suitable for phosphate fertilizer and other use GG080 ex 262100 Slag from copper production, chemically stabilized, having a high iron content (above 20%) and processed according to industrial specifications (e.g., DIN 4301 and DIN 8201) mainly for construction and abrasive applications GG090 Sulphur in solid form GG100 Limestone from the production of calcium cyanamide (having a pH less than 9) ++EP++ ANN1/APP2-8 GG110 ex 262100 Neutralized red mud from alumina production GG120 Sodium, potassium, calcium chlorides GG130 Carborundum (silicon carbide) GG140 Broken concrete GH H. SOLID PLASTIC WASTES:

Including, but not limited to:

GH010 3915 Waste, parings and scrap of plastics of: GH011 ex 391510 - polymers of ethylene GH012 ex 391520 - polymers of styrene GH013 ex 391530 - polymers of vinyl chloride GH014 ex 391590 - polymers or co-polymers e.g.: *polypropylene *polyethylene terephthalate *acrylonitrile copolymer *butadiene copolymer *styrene copolymer *polyamides *polybutylene terephthalates *polycarbonates *polyphenylene sulphides *acrylic polymers *paraffins (C10-C13)/*/ *polyurethane (not containing chlorofluorocarbons) *polysiloxalanes (silicones) *polymethyl methacrylate *polyvinyl alcohol *polyvinyl butyral *polyvinyl acetate *polymers of fluorinated ethylene (Teflon, PTFE)

((/*/ These cannot be polymerized and are used as plasticizers.)) ++EP++

ANN1/APP2-9 GH015 ex 391590 - resins or condensation products e.g.: *urea formaldehyde resins *phenol formaldehyde resins *melamine formaldehyde resins *epoxy resins *alkyd resins *polyamides GI I. PAPER. PAPERBOARD AND PAPER PRODUCT WASTES: G1010 4707 Waste and scrap of paper or paperboard: GI011 470710 - of unbleached kraft paper or paperboard or of corrugated paper or paperboard GI012 470720 - of other paper or paperboard, made mainly of bleached chemical pulp, not colored in the mass GI013 470730 - of paper or paperboard made mainly of mechanical pulp (for example, newspapers, journals and similar printed matter) GI014 470790 - other, including but not limited to: 1) laminated paperboard 2) unsorted waste and scrap GJ J. TEXTILE WASTES: GJ010 5003 Silk waste (including cocoons unsuitable for reeling, yarn waste and garnetted stock) GJ011 500310 - not carded or combed GJ012 500390 - other GJ020 5103 Waste of wool or of fine or coarse animal hair, including yarn waste but excluding garnetted stock GJ021 510310 - noils of wool or of fine animal hair GJ022 510320 - other waste of wool or of fine animal hair GJ023 510330 - waste of coarse animal hair GJ030 5202 Cotton waste (including yarn waste and garnetted stock) GJ031 520210 - yarn waste (including thread waste) GJ032 520291 - garnetted stock GJ033 520299 - other ++EP++ ANN1/APP2-10 GJ040 530130 Flax tow and waste GJ050 ex 530290 Tow and waste (including yarn waste and garnetted stock) of true hemp (Cannabis sativa L.) GJ060 ex 530390 Tow and waste (including yarn waste and garnetted stock) of jute and other textile bast fibres (excluding flax, true hemp and ramie) GJ070 ex 530490 Tow and waste (including yarn waste and garnetted stock) of sisal and other textile fibres of the genus Agave GJ080 ex 530519 Tow, noils and waste (including yarn waste and garnetted stock) of coconut GJ090 ex 530529 Tow, noils and waste (including yarn waste and garnetted stock) of abaca (Manila hemp or Musa textilis Nee) GJ100 ex 530599 Tow, noils and waste (including yarn waste and garnetted stock) of remie and other vegetable textile fibres, not elsewhere specified or included GJ110 5505 Waste (including noils, yarn waste and garnetted stock) of man-made fibres GJ111 550510 - of synthetic fibres GJ112 550520 - of artificial fibres GJ120 630900 Worn clothing and other worn textile articles GJ130 ex 6310 Used rags, scrap twine, cordage, rope and cables and worn out articles of twine, cordage, rope or cables of textile materials GJ131 ex 631010 - sorted GJ132 ex 631090 - other GK K. RUBBER WASTES: GK010 400400 Waste, parings and scrap of rubber (other than hard rubber) and granules obtained therefrom GK020 401220 Used pneumatic tyres ++EP++ ANN1/APP2-11 GK030 ex 401700 Waste and scrap of hard rubber (for example, ebonite) GL L. UNTREATED CORK AND WOOD WASTES: GL010 ex 440130 Wood waste and scrap, whether or not agglomerated in logs, briquettes, pellets or similar forms GL020 450190 Cork waste; crushed, granulated or ground cork

GM M. WASTES ARISING FROM AGRO-FOOD INDUSTRIES:

GM010 ex 2301 Dried, sterilized and stabilized flours, meals and pellets, of meat or metal offal, of fish

or of crustaceans, molluscs or other aquatic

invertebrates, unfit for human consumption but fit for animal feed or other purposes; greaves GM020 2302 Bran, sharps and other residues, whether or not in form of pellets derived from the shifting, milling or other working of cereals or of Leguminous plants GM030 2303 Residues of starch manufacture and similar residues, beet-pulp, bagasse and other waste of sugar manufacture, brewing or distilling dregs and waste, whether or not in the form of pellets GM040 2304 Oil-cake and other solid residues, whether or not or in the form of pellets, resulting from the extraction of soya-bean oil GM050 2305 Oil-cake and other solid residues, whether or not ground or in the form of pellets, resulting from the extraction of ground-nut (peanut) oil GM060 2306 Oil-cake and other solid residues, whether or not ground or in the form of pellets, resulting from the extraction of vegetable fats or oils not elsewhere specified or included GM070 ex 2307 Wine lees GM080 ex 2308 Dried and sterilized vegetable waste, residues and byproducts, whether or not in the form of pellets, of a kind used in animal feeding, not elsewhere specified or included ++EP++ ANN1/APP2-12 GM090 152200 Degras; residues resulting from the treatment of fatty substances or animal or vegetable waxes GM100 050690 Waste of bones and horn-cores, unworked, defatted, simply prepared (but not cut to shape), treated with acid or degelatinised GM110 ex 051191 Fish waste GM120 180200 Cocoa shells, husks, skins and other cocoa waste GN N. WASTES ARISING FROM TANNING AND FELLMONGERY OPERATIONS AND LEATHER USE GN010 ex 050200 Waste of pigs', hogs' or boars' bristles and hair or of badger hair and other brush making hair GN020 ex 050300 Horsehair waste, whether or not put up as a layer with or without supporting material GN030 ex 050590 Waste of skins and other parts of birds, with their feathers or down, of feathers and parts of feathers (whether or not with trimmed edges) and down, not further worked than cleaned, disinfected or treated for preservation GN040 ex 411000 Parings and other waste of leather or of composition leather, not suitable for the manufacture of leather articles, excluding leather sludges GO O. OTHER WASTES CONTAINING PRINCIPALLY ORGANIC

CONSTITUENTS, WHICH MAY CONTAIN METALS AND INORGANIC

MATERIALS

GO010 ex 050100 Waste of human hair GO020 Waste straw GO030 Deactivated fungus mycelium from penicillin production to be used as animal feed ++EP++ ANN1/APP2-13 GO040 Waste photographic film base and waste photographic film not containing silver GO050 Single use cameras without batteries

++EP++

ANN1/APP2-14 AMBER LIST OF WASTES/+/

((/+/ Whenever possible, the Harmonized Commodity Description and Coding System, established by the Brussels Convention of 14th June 1983 under the auspices of the Customs Co-operation Council (hereinafter Harmonized Customs Code) is listed opposite an entry. This code may apply to both wastes and products. This Decision does not include items which are not wastes. Therefore, the code -- used by customs officials in order to facilitate their procedures as well as by others -- is only provided here to help in identifying wastes that are listed and subject to this Decision. However, corresponding official explanatory notes as issued by the Customs Co-operation Council should be used as interpretative guidance to identify wastes covered by generic headings. The indicative "ex" identifies a specific item contained within the Harmonized Customs Code heading. The code in bold in the first column is the OECD code: it consists of two letters (one for the list: Green, Amber or Red and one for the category of waste: A,B,C...) followed by a number.))

(revised October 1992)

Regardless of whether or not wastes are included on this list, they may not be moved as Amber Tier wastes if they are contaminated by other materials to an extent which (a) increases the risks associated with the waste sufficiently to render it appropriate for inclusion in the red list, when taking into account the criteria in Annex 2, or (b) prevents the recovery of the waste in an environmentally sound manner.

AA A. METAL BEARING WASTES AA010 ex 261900 Dross, scalings and other waste from the manufacture of iron and steel/++/ AA020 ex 262019 Zinc ashes and residues/++/ AA030 262020 Lead ashes and residues/++/ AA040 ex 262030 Copper ashes and residues/++/ AA050 ex 262040 Aluminum ashes and residues/++/

((/++/ This listing includes wastes in the form of ash, residue, slag, dross, skimming, scaling, dust, powder, sludge and cake, unless a material is expressly listed elsewhere.)) ++EP++

ANN1/APP2-15 AA060 ex 262050 Vanadium ashes and residues/++/ AA070 262090 Ashes and residue/++/ containing metals or metal compounds not elsewhere specified or included AA080 Thallium waste and residues/++/ AA090 ex 280480 Arsenic waste and residues/++/ AA100 ex 280540 Mercury waste and residues/++/ AA110 Residues from alumina production not elsewhere specified or included AA120 Galvanic sludges AA130 Liquors from the pickling of metals AA140 Leaching residues from zinc processing, dusts and sludges such as jarosite, hematite, goethite, etc. AA150 Precious metal bearing residues in solid form which contain traces of inorganic cyanides AA160 Precious metal ash, sludge, dust and other residues such as: AA161 - ash from incineration of printed circuit boards AA162 - photographic film ash AA170 Lead-acid batteries, whole or crushed AA180 Used batteries or accumulators, whole or crushed, other than lead-acid batteries, and waste and scrap arising from the production of batteries and accumulators, not elsewhere specified or included

((/++/ This listing includes wastes in the form of ash, residue, slag, dross, skimming, scaling, dust, powder, sludge and cake, unless a material is expressly listed elsewhere.)) ++EP++

ANN1/APP2-16 AB B. WASTES CONTAINING PRINCIPALLY INORGANIC

CONSTITUENTS, WHICH MAY CONTAIN METALS AND ORGANIC

MATERIALS

AB010 262100 Slag, ash and residues/++/, not elsewhere specified or included AB020 Residues arising from the combustion of municipal/household wastes AB030 Wastes from non-cyanide based systems which arise from surface treatment of metals AB040 ex 700100 Glass waste from cathode-ray tubes and other activated glasses AB050 ex 252921 Calcium fluoride sludge AB060 Other inorganic fluorine compounds in the form of liquids or sludges AB070 Sands used in foundry operations AB080 Waste catalysts not on the green list AB090 Waste hydrates of aluminum AB100 Waste alumina AB110 Hydrogen peroxide solutions AB120 Basic solutions AB130 Inorganic halide compounds, not elsewhere specified or included AB140 Used blasting grit AB150 Gypsum arising from chemical industry processes AB160 Unrefined calcium sulphite and calcium sulphate from flue gas desulphurisation (FGD)

((/++/ This listing includes wastes in the form of ash, residue, slag, dross, skimming, scaling, dust, sludge and cake, unless a material is expressly listed elsewhere.)) ++EP++

ANN1/APP2-17 AC C. WASTES CONTAINING PRINCIPALLY ORGANIC

CONSTITUENTS, WHICH MAY CONTAIN METALS AND INORGANIC

MATERIALS

AC010 ex 271390 Waste from the production/processing of petroleum coke and bitumen, excluding anode butts AC020 Asphalt cement wastes AC030 Waste oils unfit for their originally intended use AC040 Leaded petrol (gasoline) sludges AC050 Thermal (heat transfer) fluids AC060 Hydraulic fluids AC070 Brake fluids AC080 Antifreeze fluids AC090 Wastes from production, formulation and use of resins, latex, plasticizers, glues and adhesives AC100 ex 391590 Nitrocellulose AC110 Phenols, phenol compounds including chlorophenol in the form of liquids or sludges AC120 Polychlorinated naphthalenes AC130 Ethers AC140 Triethylamine catalyst for setting foundry sands AC150 Chlorofluorocarbons AC160 Halons AC170 Treated cork and wood wastes ++EP++ ANN1/APP2-18 AC180 ex 411000 Leather dust, ash, sludges and flours AC190 Fluff - light fraction from automobile shredding AC200 Organic phosphorous compounds AC210 Non-halogenated solvents AC220 Halogenated solvents AC230 Halogenated or unhalogenated non-aqueous distillation residues arising from organic solvent recovery operations AC240 Surface active agents (surfactants) AC250 Liquid pig manure; feces AC260 Sewage sludge AD D. WASTES WHICH MAY CONTAIN EITHER INORGANIC OR

ORGANIC CONSTITUENTS

AD010 Wastes from the production and preparation of pharmaceutical products AD020 Wastes from the production, formulation and use of biocides and phytopharmaceuticals AD030 Wastes from the manufacture, formulation and use of wood preserving chemicals Wastes that contain, consist of or are contaminated with any of the following: AD040 - inorganic cyanides, excepting precious metal-bearing residues in solid form containing traces of inorganic cyanides AD050 - organic cyanides AD060 Waste oils/water, hydrocarbons/water mixtures, emulsions ++EP++ ANN1/APP2-19 AD070 Wastes from production, formulation and use of inks, dyes, pigments, paints, lacquers, varnish AD080 Wastes of an explosible nature, when not subject to specific other legislation AD090 Wastes from production, formulation and use of reprographic and photographic chemicals and materials not elsewhere specified or included AD100 Wastes from non-cyanide based systems which arise from surface treatment of plastics AD110 Acidic solutions AD120 Ion exchange resins AD130 Single use cameras with batteries AD140 Wastes from industrial pollution control devices for cleaning of industrial off-gases, not elsewhere specified or included AD150 Naturally occuring organic material used as a filter medium (such as bio-filters) AD160 Municipal/Household wastes/+/

((/+/ In the Basel Convention household wastes -- defined as an "other waste" -- are controlled when they are subject to transfrontier movements. Therefore, under this Decision all household wastes (and not just those which exhibit a hazardous characteristic) will be subject to the procedures in Section IV (Amber Tier. Until exporting countries have the legal authority to control transfrontier movements of household wastes, the provisions in Section II(4) will be applied.)) ++EP++

ANN 1/APP2-20 RED LIST OF WASTES (revised October 1992)

"Containing" or "contaminated with," when used in this list, mean that the substance referred to is present to an extent which (a) renders the waste hazardous when taking into account the criteria in Annex 2, or (b) renders it not suitable for submission to a recovery operation.

RA A. WASTES CONTAINING PRINCIPALLY ORGANIC

CONSTITUENTS, WHICH MAY CONTAIN METALS AND INORGANIC

MATERIALS

RA010 Wastes, substances and articles containing, consisting of or contaminated with polychlorinated biphenyl (PCB) and/or polychlorinated terphenyl (PCT) and/or polybrominated biphenyl (PBB), including any other polybrominated analogues of these compounds, at a concentration level of 50 mg/kg or more RA020 Waste tarry residues (excluding asphalt cements) arising from refining, distillation and any pyrolitic treatment of organic materials RB B. WASTES CONTAINING PRINCIPALLY INORGANIC

CONSTITUENTS, WHICH MAY CONTAIN METALS AND ORGANIC

MATERIALS

RB010 Asbestos (dusts and fibres) RB020 Ceramic based fibres of physico-chemical characteristics similar to those of asbestos RC C. WASTES WHICH MAY CONTAIN EITHER INORGANIC OR

ORGANIC CONSTITUENTS

Wastes that contain, consist of or are contaminated with any of the following: RC010 - any congener of polychlorinated dibenzo-furan RC020 - any congener of polychlorinated dibenzo-dioxin RC030 Leaded anti-knock compound sludges ++EP++ ANN 1/APP2-21 RC040 Peroxides other than hydrogen peroxide

++EP++

ANN 2-1

Annex 2

CRITERIA A) Properties

1) Does the waste normally exhibit any of the hazardous characteristics listed in Table 5 of OECD Council Decision C(88)90(Final)? Furthermore, it is useful to know if the waste is legally defined as or considered to be a hazardous waste in one or more Member countries.

2) Is the waste typically contaminated?

3) What is the physical state of the waste?

4) What is the degree of difficulty of cleanup in the case of accidental spillage or mismanagement?

5) What is the economic value of the waste bearing in mind historical price fluctuations?

B) Management

6) Is there technological capability to recover the waste?

7) Is there a history of adverse environmental incidents arising from transfrontier movements of the waste or associated recovery operations?

8) Is the waste routinely traded through established channels and is that evidenced by commercial classification?

9) Is the waste usually moved internationally under the terms of a valid contract or chain of contracts?

10) What is the extent of reuse and recovery of the waste and how is any portion separated from the waste but not subject to recovery managed?

11) What are the overall environmental benefits arising from the recovery operations? ++EP++

ANN 2-2

Sweden's Environmental Protection Agency

Waste Section Margareta Appelberg June 24, 1992 Copies to: Visterbotten county Skellefted municipality Boliden Mineral AB 93600 BOLIDEN ILLEGIBLE ++EP++ ANN 2-3 LAW OFFICES Beveridge & Diamond, P.C. Suite 700 1350 I Street, N.W. Washington, D.C. 20005-3311 April 28, 1992

BY HAND

Fred R. Disheroon, Esq.

Environment and Natural Resources Division

U.S. Department of Justice

601 Pennsylvania Avenue, N.W.

Room 831

Washington, D.C. 20530

Robert E. Maher, Jr., Esq.

Environmental Enforcement Section

Environment and Natural Resources Division

U.S. Department of Justice

10th & Pennsylvania Avenue, N.W.

Room 1740

Washington, D.C. 20530

Gentlemen:

Enclosed, as promised, is the information that Boliden has obtained from the supplier of the transport bags in which Boliden proposes to ship the PCB-contaminated materials from the Allens Avenue facility to the Swedish smelter. As explained to me by Boliden, the test results appearing on the last two pages of the enclosure (the "tensile to destruction" test results) show the amount of force required to pull the bags apart. The force is expressed in both kilograms per foot ("kgf") and pounds per foot ("lbf") in parentheses at the end of each separate test result.

You will note that the pounds per foot of force required to pull the bags apart range from a low of 5,344 to a high of 17,862. In the case of the Boliden material, each bag would hold approximately 3,000 pounds of material, the weight of which would be spread over the entire bag rather than being concentrated on a single foot of the bag's surface. Accordingly, these data support the conclusion that the bag's strength is more than sufficient for the proposed export. ++EP++

ANN 2-4

With respect to the question of puncturability that you raised, Boliden has spoken with representatives of several companies that have used these bags for the shipment of shredded metals without having a problem with punctures or tears. Boliden has requested letters from these other companies confirming this experience but has not yet received them.

As we discussed, given the precious metals content of the material, which is the reason for Boliden's wish to export the material, the company has every incentive to ensure that the material is shipped in a manner that will not result in material losses in transit. Accordingly, Boliden would not propose the use of these transport bags if it was not confident that the strengthen and integrity of the bags is sufficient to keep the material adequately contained throughout the shipment process.

Sincerely,

/S/Cynthia Lewis

Cynthia A. Lewis

CAL/kd

Enclosure

cc: D. Carroll

R. Hodgson

G. Pannone

No: /03/45/0879/ltr/0879cal.65 ++EP++

ANN 2-5 ATLAS BAG COMPANY INCORPORATED 7100 N. RIDGEWAY AVE. LINCOLNWOOD, IL 60645

Atlas Bag Company Inc. is a member of the FIBCA Flexible Intermediate Bulk Container Association. All bags are manufactured to meet FIBCA Performance Standards. They all have a 5 to 1 safety factor. The bags have been tested successfully at the Independent Laboratory in Glasgow, Scotland.

The design of an Atlas Bag is second to none. One U-shaped panel of woven polypropylene runs continuously from the top, down one side of the bag, across the bottom, and up the other side. This uninterrupted panel acts as a cling and is inherently a safe design method. The two sides, and the main U-panel, all are hemmed 3 1/2 inches to provide a ILLEGIBLE inch double thickness runner from loop to loop along all seams in the bag, even across the bottom. This feature provides not only superior lifting strength, but (drop) strength as well.

The superior, patented method of inserting the lifting loops and criss-cross sewing them completes the safe, fully integrated design.

We guarantee the quality of each bag we produce. If you have any questions, please contact us at Atlas Bag Company, 7100 Ridgeway, Lincolnwood, Illinois 60645, (703) 679 0055. ++EP++

ANN 2-6

FACSIMILE MESSAGE

To: Mr. ILLEGIBLE Vernon

ILLEGIBLE Company

ILLEGIBLE CENTRAL PARK AVENUE

ILLEGIBLE Illinois 60076, U.S.A.

From: NAME ILLEGIBLE

Department of Trade and Industry

National Engineering Laboratory

EAST ILLEGIBLE

Glasgow

G75

PAGES TO FOLLOW THIS ONE (2) TWO

Special Instruction: Results as Promised.

IF YOU HAVE ANY DIFFICULTY READING THIS MESSAGE PLEASE CONTACT THE FAX OPERATOR AT THE NUMBER GIVEN BELOW

Fax Operator: ILLEGIBLE 20222 ext. 2680

Fax Machine ILLEGIBLE 36930

National Engineering Laboratory ++EP++

ANN 2-7 LAW OFFICES Beveridge & Diamond, P.C. Suite 700 350 I Street, N.W. Washington, D.C. 20005-3311 (202) 789-6000 TELECOPIER (202) 789-6190 May 11, 1992 BY TELECOPIER

Fred R. Disheroon, Esq.

Environment & Natural Resources Division

U.S. Department of Justice

601 Pennsylvania Avenue, N.W.

Room 831

Washington, D.C. 201

Robert E. Maher, Jr., Esq.

Environmental Enforcement Section

Environment & Natural Resources Division

U.S. Department of Justice

10th and Pennsylvania Avenue, N.W.

Room 1740

Washington, D.C. 20530

Gentlemen:

Following up our discussions regarding EPA question about the puncturability of the transport bags in which Boliden proposes to export its electronic scrap, I am enclosing one of the letters Boliden has been expecting from companies that have used the bags to ship various metals without experiencing problems. As you can see, in the case of the enclosed letter, the company was using the bags to contain approximately 1,000 pounds per bag more than Boliden's proposed shipments would weigh. We will forward any additional letters ILLEGIBLE we receive them.

Sincerely yours,

/s/ Cynthia Lewis

Cynthia A. Lewis

CAL/kd

Enclosure

N: /03/45/0879/ltr/0879cal.73 ++EP++

ANN 2-8

(312) 829-1100

ALUMETCO, LTD. 2537 West Taylor Street, Chicago, Illinois 60612

MAY 4, 1992

BOLIDEN METECH

1 MAIN STREET

MAPERVILLE, ILLEGIBLE 02839

ATTENTION: MR. PAUL MEAGHER

DEAR PAUL:

ALUMETCO LIMITED HAS BEEN SHIPPING ALUMINUM NUGGETS FOR SIX YEARS IN "SUPER SACKS" SUPPLIED BY ATLAS BAG, SOME OF THE NUGGETS HAVE SHARP EDGES. A FULL BAG WEIGHS APPROXIMATELY 4000 *. WE HAVE HAD NO PROBLEMS WITH TEARING ON SPILLAGE SO FAR.

I WOULD RECOMMEND THEM FOR THE USAGE YOU WERE ASKING ABOUT.

SINCERELY,

/s/ Matt Lydon

MATT LYDON

VICE-PRESIDENT ++EP++

R.J. CASEY INDUSTRIAL PARK

DOC 02 of 02

CONSENT DECREE

03-88-C003

TSCA

MISC

19880331

19880331

PAD981735475

R.J. CASEY INDUSTRIAL PARK

PITTSBURGH, PA

87-1374

03

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff,

v.

R.J. CASEY, JR. KATHLEEN ALLISON, G. GRAY GARLAND, JR., CHRISTINE STREIT, and

MICHAEL P. CASEY, Executors of the Will and Trustees of the Property of R. J. Casey, Sr. Defendants.

CIVIL ACTION NO. 87-1374

CONSENT DECREE

WHEREAS, the plaintiff, United States of America, on behalf of the Administrator of the United States Environmental Protection Agency ("EPA"), and the defendants, R.J. Casey, Jr., Kathleen Allsion, G. Gray Garland, Jr., Christine Street, and Michael P. Casey, having agreed to the entry of this Consent Decree prior to trial; and

WHEREAS, the plaintiff filed a complaint captioned United States v. Casey, Civil Action No. 87-1374, in the United States District Court for the Western District of Pennsylvania, pursuant to Sections 15 and 17 of the Toxic Substances Control ++EP++

Act ("TSCA"), 15 U.S.C. Sub-Section 2614 and 2616, and the regulations promulgated pursuant to TSCA at 40 C.F.R. Part 761; and

Page 2

WHEREAS, the United States alleges in its complaint that the defendants are the owners or operators of the R.J. Casey Industrial Park (the "Park"); and

WHEREAS, the United States alleges that one of the buildings located at the Park contains tanks (the "Tanks") which contain polychlorinated biphenyls ("PCBs"); and

WHEREAS, the United States alleges that said PCBs have been stored for disposal in violation of TSCA;

WHEREAS, the defendants deny all liability for the presence of PCBs in the Tanks; and

WHEREAS, the complaint of the United States requests injunctive relief to require the defendants to comply with TSCA; it is hereby

ORDERED, ADJUDGED AND DECREED as follows:

JURISDICTION

1. This Court has jurisdiction of the subject matter herein and of the parties consenting hereto for the purposes of this Decree.

PARTIES BOUND

2. This Decree shall apply to and be binding upon the United States and the defendants and upon their officers, directors, agents, employees, contractors, successors, heirs and assigns and upon all persons or firms acting under or for them. Each undersigned representative of the defendants ++EP++

certifies that he or she is fully authorized by each party whom he or she represents to enter into the terms and conditions of this Consent Decree and to execute and to legally bind that party to it.

Page 3

The defendants shall provide a copy of this Decree to each person, including all contractors and subcontractors, retained to perform the actions contemplated by this Decree and shall condition any contract for such actions on compliance with this Decree.

3. The defendants shall undertake, at their own expense, appropriate action (as hereinafter delineated) to remove the PCBs from the Tanks to the levels specified in this Consent Decree. Said action shall include the specific actions and shall be completed within the time periods as set forth below.

PHASE I

4. The defendants shall undertake a study to determine the amount, nature and concentration of PCBs in the Tanks at the Park. The study shall be performed in accordance with the standards and specifications set forth in Attachment A. Attachment A is incorporated herein and made a part of and enforceable under the terms of this Consent Decree. The study shall be completed and the results of the study in final form submitted to the United States by November 30, 1987. The study results submitted to the United States shall include, but not be limited to, the data gathered during the study, an analysis of that data, and conclusions concerning the amount, nature and concentration of PCBs in the Tanks at the Park. ++EP++

Page 4 PHASE II

5. The defendants shall complete the removal and transportation for disposal of all identified PCBs and PCB-contaminated materials pursuant to Attachment A by December 31, 1987. Actual disposal pursuant to Attachment A of all such materials will follow within a reasonable time thereafter.

6. Upon completion of the work required by Attachment A, the defendants shall submit a certification to the United States stating that the work has been completed in accordance with Attachment A and applicable regulations and shall provide the United States with the documents necessary to support that certification.

7. The work undertaken by the defendants and their contractors or subcontractors pursuant to this Decree shall be performed in compliance with all applicable federal, state and local laws and regulations and the defendants and/or their contractors or subcontractors shall obtain all permits or approvals necessary under such laws and regulations.

8. At all times during Phases I and II of this Consent Decree, authorized representatives of EPA shall, upon presentation of appropriate credentials, have access to the Park for the purpose of sampling, observing and monitoring the defendants' actions as specified herein, verifying any data or information submitted to the United States by the defendants, inspecting and copying documents required to assess the defendants' compliance with this Decree, and for other lawful ++EP++ purposes.

Page 5

This right of entry and access shall be in addition to, and not in substitution for, EPA's rights of entry and access under applicable federal law.

9. In addition to the reports and documentation required to be provided to the United States by the defendants under the terms of this Consent Decree, the defendants shall also provide to the United States, at its request, any analytical data or any other documents that are, in the judgment of the United States, necessary to review work done or to be done or to determine the defendants' compliance with the terms of this Consent Decree.

FORCE MAJEURE

10. When circumstances are occuring or have occurred that may delay the completion of any Phase or interim requirements of this Consent Decree and which are known or should be known to the defendants, the defendants shall notify the United States in writing of the reason(s) for and the duration of such delay and the measures taken and to be taken by the defendants to prevent or minimize the delay and the timetable by which those measures will be implemented. Such notice shall be sent not later than 7 calendar days from the date the defendants become aware that such a delay may occur. Failure to notify the United States within the time period set forth herein shall constitute a waiver of any claim under Paragraph 11 that circumstances beyond the defendants' control could have prevented compliance with this Consent Decree. ++EP++

Page 6

11. If the parties agree that a delay is or was beyond the control of the defendants and if the parties agree upon the duration of such delay, the parties may, with approval of the Court, modify the Consent Decree to the extent necessary to enlarge the schedule for completion of the specific Phase(s) affected by such delay. If the parties cannot agree that the reason for the delay is or was beyond the control of the defendants, or upon the duration of such delay, the defendants may submit the matter to the Court for resolution. In such event, the defendants shall bear the burden of demonstrating that the determination by the United States that the delay was not beyond the control of the defendants, and/or a determination regarding the duration of the delay, was unreasonable. Increased cost of compliance or a change in the economic circumstances of the defendants shall not be deemed to be events beyond the control of the defendants.

STIPULATED PENALTIES

12. In the event that the defendants fail to meet any deadlines in this Decree or in the work plan, the defendants shall pay to the United States a penalty of $400 per day of noncompliance. The penalty shall be paid on demand by a cashier's or certified check payable to "The United States Department of Justice" sent to the United States Attorney for the Western District of Pennsylvania, 633 USPO & Courthouse, 7th Avenue & Grant Street, Pittsburgh, Pennsylvania 15219. Such stipulated penalty shall be in addition to, and shall not ++EP++

preclude the use of, any other remedies or sanctions, including proceedings for contempt of Court, that may be available to the United States by reason of the defendants' noncompliance with the provisions of this Consent Decree or applicable law.

Page 7

However, any such delay that arises from circumstances beyond the control of the defendants in the exercise of due diligence shall not be deemed a violation of this Consent Decree and shall not make the defendants liable for stipulated penalties.

HOLD HARMLESS

13. The defendants or their contractors, as appropriate shall purchase and maintain in force insurance policies, to the extent available, which shall protect the United States against any and all liability arising from acts or omissions of the defendants, their contractors or other agents in the performance of the work required by this Decree.

14. The defendants shall hold the United States harmless from any and all liability arising from or related to the defendants' acts or omissions in the performance of the work contemplated by this Decree, or their failure to perform fully or complete such work.

15. The actions contemplated by this Consent Decree are intended to remedy the violations of law that were the bases for the filing of the complaint. The United States' approval of any removal and disposal plan pursuant to this Decree is not intended and shall not be construed as a certification that the facility ++EP++

is safe or appropriate for any particular future use once the remedial action is completed.

Page 8 CONVEYANCE OF TITLE

16. No conveyance of title, easement or other interest in the Park shall be consummated without a provision binding and obligating all parties who acquire any interest in the Park to submit to the jurisdiction of this Court and all requirements and enforcement provisions of this Consent Decree. At least 60 calendar days prior to any conveyance, the defendants shall notify the United States by registered mail of their intent to transfer interest in the Park and the steps taken to comply with the provisions of this paragraph.

RETENTION OF JURISDICTION

17. The Court shall retain jurisdiction of this matter for the purposes of implementing, enforcing and modifying the terms and conditions of this Consent Decree and for the purpose of adjudicating all disputes among the parties that may arise under the provisions of this Consent Decree.

DISPUTE RESOLUTION

18. If the defendants dispute any determination of the United States made pursuant to this Consent Decree, the defendants shall notify the United States, in writing, of such dispute within 10 calendar days of receipt of such determination. The parties shall then have an additional 10 calendar days from the United States' receipt of such notification of dispute in which to resolve the dispute informally. If agreement cannot be ++EP++

reached between the parties, it may be presented to the Court for resolution upon written notice.

Page 9

Unless the dispute results from the United States' attempts to enforce this Decree, it shall be the responsibility of the defendants to file the documents necessary to notify the Court of the dispute. The defendants' failure to file papers with the Court within 10 calendar days after the close of the informal resolution process shall be deemed a waiver of the right to judicial review or relief, unless the United States agrees in writing to an extension of the period for seeking review or relief. Except for the determination of whether a Force Majeure event has occurred, in all disputes before the Court, the defendants shall bear the burden of proof that any determination by the United States was arbitrary and capricious.

19. Submission of any matter to the Court for resolution shall not extend any of the deadlines set forth in this Decree or any Attachments hereto unless the parties agree to such extension in writing or the Court allows the extension upon motion and good cause shown.

NOTICES

20. Notices and reports required under this Consent Decree, except as otherwise provided herein, shall be given by ++EP++

first class U.S. Mail, postage prepaid, to the parties at the following addresses:

Page 10

The United States:

Christopher B. Pilla (3HW40)

United States Environmental Protection

Agency, Region III

841 Chestnut Street

Philadelphia, PA 19107

The Defendants:

Stephen Jurman, Esq.

309 Smithfield Street

Suite 4000

Pittsburgh, PA 15222

PRE-DATE OF ENTRY OBLIGATIONS

21. The obligations of the defendants under the provisions of this Consent Decree that pre-date the entry of this Decree, shall be legally enforceable retroactively. Liability for stipulated penalties, if applicable, shall accrue for violations of such obligations and payment of such stipulated penalties may be demanded by the United States as provided for in this Consent Decree. The contempt authority of this Court shall also extend to violations of such obligations.

MISCELLANEOUS PROVISIONS

22. This Consent Decree shall not relieve the defendants of any duty to comply with any federal, state or local laws or regulations that may apply to the defendants by virtue of their ownership or operation of the Park.

23. Notwithstanding any other provision of this Consent Decree, the United States reserves the right to institute ++EP++

proceedings in this action or in a new action seeking to compel the defendants to perform additional work regarding the Tanks at the Park if conditions previously inknown to or undetected by the United States are discovered after the lodging of this Consent Decree.

Page 11

24. This Consent Decree shall be effective upon the date of its entry by the Court.

25. Following submission to the United States of the defendants' certification that all work required in Phase II has been performed, the defendants shall petition the Court for termination of this Consent Decree, which petition shall recite the terms of this paragraph of the Consent Decree. The Decree shall then terminate 90 days thereafter unless the United States objects within that time period or brings to the attention of the Court any dispute or issue under this Decree that is not resolved. The 90 day period shall be tolled while any objection or dispute is resolved. Upon resolution of any objection or dispute, the United States shall notify the Court, requesting a ruling on the defendants' petition for termination. Termination shall not affect the provisions of Paragraph 14 of this Consent Decree.

26. Pursuant to the provisions of 28 C.F.R. Section 50.7, this Consent Decree shall be lodged with the Court for thirty (30) ++EP++ calendar days to allow for public comment prior to entry.

Page 12

Compliance with 28 C.F.R. Section 50.7 and the requirements for public notice shall be by publication in the Federal Register.

BY THEIR COUNSEL, THE PARTIES ENTER THIS CONSENT DECREE AND SUBMIT IT TO THE COURT, THAT IT MAY BE APPROVED AND ENTERED.

FOR THE UNITED STATES

BY: /s/ Roger J. Marzulla

Roger J. Marzulla

Acting Assistant Attorney General

Land and Natural Resources

Division

J. ALAN JOHNSON

United States Attorney

Western District of Pennsylvania

BY: /s/ Barbara Carlin

Barbara Carlin

Assistant United States Attorney

Western District of Pennsylvania

BY: /s/ Brian G. Donohue

Attorney, Environmental

Enforcement

Section

U.S. Department of Justice

10th and Pennsylvania Ave., N.W.

Washington, D.C. 20530

(202) 633-3747 ++EP++

Page 13

BY: /s/ Thomas L. Adams, Jr.

Assistant Administrator

Office of Enforcement and

Compliance Monitoring

U.S. Environmental Protection

Agency

401 M Street, S.W.

Washington, D.C. 20460

BY: /s/

Bruce Diamond

Regional Counsel, Office of

Regional Counsel

U.S. Environmental Protection

Agency, Region III

841 Chestnut Building

Philadelphia, Pennsylvania 19107

FOR THE DEFENDANTS

BY: /s/

Stephen Jurman, Esq.

McCann, Garland, Ridall & Burke

Suite 4000

309 Smithfield Street

Pittsburgh, Pennsylvania 15222

APPROVED and so ORDERED, this 28th day of January, 1988.

/s/

United States District Judge

++EP++

ATTACHMENT A

Pursuant to the terms of the Consent Decree, the defendants shall perform the following activities at the Park in accordance with all applicable federal, state and local laws and regulations:

I. Sampling

Samples from the Tanks shall be obtained for analysis. Each sample collected shall contain eight liquid ounces and be placed in a glass sample jar with a teflon cap.

II. Analysis

Analysis for PCB concentrations shall be performed on all samples. The analytical methods used shall be as follows:

A. for PCBs in waste material: EPA methods 3550 and 8080;

B. for PCBs in oil: EPA method 8080;

C. for PCB wipe samples: EPA method 608.

III. Profile Sheets

Profile sheets shall be completed using the analytical results obtained from the methods indicated in Section II above. The profile sheets shall estimate the amount, nature and concentration of PCBs in the tanks at the Park. The profile sheets shall be forwarded upon completion to the United States as indicated in Paragraph 20 of the Consent Decree. ++EP++

Page 2

IV. Product Removal

A. Pumpable material with a PCB concentration of 50 parts per million (ppm) or greater shall be removed from each tank and loaded to a stainless steel tanker by an air-operated diaphragm pump.

B. Non-pumpable material with a PCB concentration of 50 ppm or greater shall be removed manually from each tank and packaged into DOT 17c drums. Drummed material shall remain at the Park in a suitable area pending disposal, pursuant to 40 C.F.R. Section 761.65.

C. The one, 1,000 gallon tank at the Park shall be loaded to a flat-bed trailer for transportation for decontamination and scrapping.

D. The defendants shall give fourteen (14) days prior notice of each of the activities described in this Section IV. to EPA through Scott McPhilliamy (or his designated substitute), Environmental Scientist, Region III, Wheeling Office, 303 Methodist Building, 11th and Chaplin Streets, Wheeling, West Virginia 26003.

V. Decontamination

A worker shall enter a tank once all pumpable liquids are removed. The worker shall proceed to triple wipe down the ceiling, walls and floor of the tank with a suitable solvent, such as kerosene. The solvent shall contain less than 50 ppm of PCBs, and shall not be re-used during the triple wipe-down procedure. Clean pads and solvent shall be used during each ++EP++ wipe-down.

Page 3

After the wipe-down procedure is completed, the tank shall be triple washed using a mild caustic detergent at a spray pressure of 3000 pounds per square inch.

Wipe samples shall thereafter be obtained from the ceiling, walls and floor of the tank to determine decontamination efficiency. The wipe samples shall be analyzed in a manner consistent with Section II above. The results of the wipe samples shall be sent to the United States as indicated in Paragraph 20 of the Consent Decree and shall be reported in micrograms/100 square centimeters.

Liquids generated in the decontamination procedure shall be packaged into DOT 17E containers and analyzed for PCB concentration in a manner consistent with Section II above. Drummed material shall remain at the Park in a suitable area pending disposal, pursuant to 40 C.F.R. Section 761.65.

The defendants shall give fourteen (14) days prior notice of each of the activities delineated in this paragraph to EPA as delineated in Section IV.D. above.

VI. Disposal

All materials removed and/or generated as a result of the work delineated above shall be disposed of by incineration and/or scrapping (metal tank(s)) by Chemical Waste Management, Inc. or any other disposal facility approved in writing by EPA. All necessary forms and applications shall be completed by the Defendants or their representatives. The defendants shall give fourteen (14) days prior notice of this activity as delineated in Section IV.D. above. ++EP++

Page 4

VII. Transportation

All transportation shall be conducted by AMO Pollution Services, Inc. or any other transporter approved in writing by EPA. All necessary forms and applications shall be completed by the Defendants or their representatives.

VIII. Access

The Defendants shall provide access ways to the work area and loading equipment.

IX. Equipment Decontamination

Decontamination of the stainless steel tanker and all equipment used in the procedures outlined above shall follow a triple-rinse and analytical procedure. A suitable solvent, such as kerosene, shall be used in the triple-rinse procedure. Wipe samples shall be taken of the stainless steel tanker and all equipment used in the procedures oultined above. The wipe samples shall be analyzed in a manner consistent with Section II above. The results of the wipe samples shall be sent to the United States as indicated in Paragraph 20 of the Consent Decree and shall be reported in micrograms/100 square centimeters.

X. Worker Protection

Worker protection shall be in accordance with OSHA Guidance Manual for Hazardous Site Activities. ++EP++

R.J. CASEY INDUSTRIAL PARK

DOC 01 of 02

COMPLAINT

03-88-C003

TSCA

MISC

19880331

19870726

PAD981735475

R.J. CASEY INDUSTRIAL PARK

PITTSBURGH, PA

87-1374

03

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff,

v.

R.J. CASEY, JR., KATHLEEN ALLISON, G. GRAY GARLAND, JR., CHRISTINE STREET, AND MICHAEL P. CASEY,

Executors of the Will and Trustees of the Property of R.J. Casey, Sr., Defendants.

Civil Action No. 87-1374

COMPLAINT

The United States of America, by its undersigned attorneys, by authority of the Attorney General and acting at the request of the Administrator of the United States Environmental Protection Agency ("EPA") alleges that:

PRELIMINARY STATEMENT

1. This is a civil action instituted pursuant to Sections 15 and 17 of the Toxic Substances Control Act ("the Act"), 15 U.S.C. Sub-Section2614 and 2616, to enjoin defendants from storing toxic substances in violation of regulations promulgated pursuant to Section 6 of the Act, 15 U.S.C. Section2605.

2. This court has jurisdiction over this action pursuant to Section 17(a)(1)(A) of the Act, 15 U.S.C.Section2616(a)(1)(A), and 28 U.S.C. Sub-Section1331 and 1345. ++EP++

Page 2

3. Venue is proper in this district pursuant to Section 17(a)(2)(A) of the Act, 15 U.S.C. Section2616(a)(2)(A), and 28 U.S.C. Section1391( b). The acts and omissions complained of herein occurred in this judical district.

FACTS

4. The R.J. Casey Industrial Park ("the Park") is located at Columbus and Preble Avenues, Pittsburgh, Pennsylvania.

5. R.J. Casey, Sr. acquired title to the Park in 1977.

6. R.J. Casey, Sr. died on July 5, 1985.

7. Pursuant to the terms of the Will of R.J. Casey, Sr., the named defendants are the Executors of the estate of R.J. Casey, Sr.

8. Pursuant to the terms of the Will, the defendants are also named as Trustees of the business interests of R.J. Casey, Sr.

9. The named defendants are the owners/operators of the Park.

10. One of the buildings at the Park contains ten tanks, a number of which contain and store polychlorinated biphenyls ("PCBs").

11. Pursuant to the terms of the Will of R.J. Casey, Sr., the named defendants are also the owners/operators of the tanks.

12. The named defendants are "persons", as defined in 40 C.F.R. Section761.3. ++EP++

Page 3

13. PCBs are regulated as toxic substances under Section 6(e) of the Act, 15 U.S.C.Section2605(e), which authorizes the promulgation of rules and regulations governing the manufacture, distribution, storage, and disposal of PCBs. The regulations promulgated puruant to Section 6(e) are codified at 40 C.F.R. Part 761.

14. The tanks are PCB Containers, as defined at 40 C.F.R. Section761.3.

15. Upon information and belief, the tanks contain over 45 kilograms of PCBs.

CLAIM FOR RELIEF

16. Paragraphs 1 through 15 are incorporated herein by reference.

17. 40 C.F.R.Section761.65 provides, in pertinent part:

This section applies to the storage for disposal of PCBs at concentrations of 50 ppm or greater and PCB Items with PCB concentrations of 50 ppm or greater. (a) Any PCB Article or PCB Container stored for disposal before January 1, 1983, shall be removed from storage and disposed of as required by this part before January 1, 1984. Any PCB Article or PCB Container stored for disposal after January 1, 1983, shall be removed from storage and disposed of as required by Subpart D of this part within one year from the date when it was first placed into storage.

18. A number of the ten tanks described in Paragraph 10 above, contain PCBs at concentrations of 50 parts per million (ppm) or greater.

19. The remaining tanks, upon information and belief, may also contain PCBs at concentrations of 50 parts per million (ppm) or greater. ++EP++

Page 4

20. The PCB Containers have been stored for disposal pursuant to 40 C.F.R.Section761.3 for over one year.

21. In addition, 40 C.F.R.Section761.65(b) provides, in pertinent part, that an owner or operator of a facility used for the storage of PCBs for disposal must assure that the facility is equipped with continuos curbing, a minimum of six (6) inches high, which provides a containment volume equal to at least two times the internal volume of the largest PCB Container stored therein or twenty-five percent (25%) of the total internal volume of all PCB Containers stored therein, whichever is greater.

22. The building which houses the tanks fails to have adequate curbing for at least one of the tanks.

23. 40 C.F.R.Section761.65(c)(8) provides that PCB Containers stored for disposal shall be marked and dated, shall be managed, and shall be supported by records as specified in 40 C.F.R.Section761.65( c)(8).

24. 40 C.F.R.Section761.180(a) provides that each owner or operator of a facility storing at least 45 kilograms of PCBs in PCB Containers shall develop and maintain records as specified in 40 C.F.R. Section761.180(a).

25. Markings, management, and records have not been maintained in regard to the tanks in a manner consistent with TSCA and its implementing regulations.

26. Section 15 of the Act, 15 U.S.C.Section2614, provides that it is unlawful for any person to fail or refuse to comply ++EP++

with any rule promulgated under Section 6 of the Act, 15 U.S.C. Section2614.

Page 5

27. The defendants are in violation of 40 C.F.R.Sub-Section761.65( a), (b), and (c) and 761.180(a).

28. The defendants' conduct is unlawful under Section 15 of the Act, 15 U.S.C.Section2614. Said unlawful conduct will continue unless restrained by order of this Court.

PRAYER FOR RELIEF

WHEREFORE, plaintiff, United States of America, prays for:

1. An order requiring the defendants to comply with 40 C.F.R. Part 761;

2. Judgment for plaintiff's costs and disbursements herein; and

3. Such other and further relief to which plaintiff may be entitled.

Respectfully submitted,

/s/

ROGER J. MARZULLA

Acting Assistant Attorney General

Land and Natural Resources

Division ++EP++

Page 6

J. ALAN JOHNSON

United States Attorney

Western District of Pennsylvania

By: /s/

BARBARA M. CARLIN

Assistant United States Attorney

Western District of Pennsylvania

/s/

BRIAN G. DONOHUE

Attorney, Environmental

Enforcement Section

Land and Natural Resources

Division

U.S. Department of Justice

Washington, D.C. 20530

(202) 633-5471

OF COUNSEL:

HENRY H. SPRAGUE

Attorney, Office of Regional

Counsel

U.S. Environmental Protection

Agency, Region I11

841 Chestnut Bldg.

Philadelphia, PA 19107

BOB PITTMAN, JR.

Attorney

U.S. Environmental Protection

Agency

401 M Street, S.W.

Washington, D.C. 20460

(202) 475-8690 ++EP++

SUGARHOUSE REALTY, INC.

DOC 02 of 02

ORDER

03-86-C015

TSCA

OTHER

19880328

19880329

PAD981040173

SUGARHOUSE REALTY, INC.

PHILADELPHIA, PA

CA-85-4829

03

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff,

v.

SUGARHOUSE REALTY, INC. AND WILLIAM H. THAYER, Defendants

CIVIL ACTION NO. 85-4829

ORDER

AND NOW, this 18 day of March, 1988, upon consideration of the contempt petition filed by the United States, on January 25, 1988, the stipulation of the parties agreed to on February 29, 1988, the petition for assessment of stipulated penalties and civil contempt penalties filed by the United States on March 23, 1988, and the matters presented to the Court on March 28, 1988, it is hereby

ORDERED, that defendants shall pay to the United States stipulated and civil contempt penalties in the amount of $207,750 and that judgment is hereby entered in favor of the United States and against the defendants Sugarhouse Realty, Inc. and William H. Thayer in the amount of $207,750. It is further ordered that defendants shall reimburse plaintiff for witness expenses, in accordance with the stipulation, in the amount of $1,649.40. ++EP++

BY THE COURT:

/s/ Edward N. Cahn

EDWARD N. CAHN

JUDGE, U.S. DISTRICT COURT ++EP++

SUGARHOUSE REALTY, INC.

DOC 01 of 02

STIPULATION

03-86-C015

TSCA

OTHER

19880328

19870310

PAD981040173

SUGARHOUSE REALTY, INC.

PHILADELPHIA, PA

CA-85-4829

03

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff,

v.

SUGARHOUSE REALTY, INC., and WILLIAM H. THAYER, Defendants

CIVIL ACTION NO. 85-4829

STIPULATION

The parties to this action, by their undersigned counsel, hereby enter into this stipulation to amend the existing Consent Decree and to resolve the matters raised in the recent contempt petition filed by the United States.

WHEREAS, the parties signed a Consent Decree in this matter for the Court's approval, which Decree was approved by the Court on May 23, 1986, and

WHEREAS, the Consent Decree required defendants to undertake a survey of the full extent of contamination at the Jack Frost Sugar facility, to remove all PCB-contaminated material, and to provide certain financial guarantees that the work would be done properly, and

WHEREAS, defendants have failed to comply with the Consent Decree, as is set forth in the government's contempt petition, and ++EP++

Page 2

WHEREAS, the parties to this action want to resolve the issues raised in the contempt petition and to provide for specific and clearly enforceable deadlines for completion of the work that is required by the Consent Decree, the parties hereby agree and stipulate as follows, subject to Court approval:

1. Defendants agree to pay a civil contempt fine in the amount of $45,000.00 with respect to the violations of the Consent Decree that are the subject of the contempt petition filed by the United States. Such payment shall be by certified check made payable to "The United States Department of Justice." The first payment shall be in the amount of $22,500.00 and shall be delivered to the United States Attorney's Office no later than March 2, 1987. The second payment shall be in the amount of $22,500.00 and shall be delivered to the United States' Attorney's Office no later than March 23, 1987. Such payments shall be in satisfaction of all stipulated penalties that have accrued under the Consent Decree through February 23, 1987.

2. Defendant may provide plaintiff with an irrevocable letter of credit in the amount of $250,000.00, payable on demand of the United States, to satisfy paragraph 25 of the Consent Decree. Such letter of credit shall run for 180 days, to be renewed by defendant, if necessary, until dismissal of this lawsuit. The letter of credit, or other document satisfying the requirements of paragraph 25 of the Decree, ++EP++

shall be delivered to the United States Attorney's Office no later than March 13, 1987.

Page 3

Stipulated penalties of $750.00 per day shall be paid for each day after March 13, 1987 that defendants have not complied with paragraph 25 of the Decree.

3. Defendants shall comply with paragraph 25 of the Decree, regarding insurance, no later than March 13, 1987. Stipulated penalties in the amount of $750.00 per day shall be paid for each day after March 2, 1987 that defendants have not complied with paragraph 24 of the Decree.

4. Defendants shall meet the following schedule with respect to the completion of sampling and cleanup at the facility:

a. All sampling required by the Decree and attachments thereto shall be completed no later than February 23, 1987, and a full report, which shall include all sample data collected at the facility, an analysis of the data and conclusions regarding the extent of contamination, shall be submitted no later than March 16, 1987. The report shall also include a determination on whether the data collected is sufficient to determine the full extent of contamination, in a manner such that a contractor can know exactly what material and how much material must be removed to eliminate all material containing in excess of 10 ppm PCBs, and to achieve the standards set forth in paragraph 10 of the Consent Decree. If the ++EP++

determination is that the data collected is not sufficient, any additional sampling and analysis necessary and any additional conclusions on extent of contamination shall be submitted with the work plan described in paragraph 4.c. below.

Page 4

b. All sump testing, removal of the contents of the sumps and dye testing shall also be complete by February 23, 1987 and the results of such work shall be described in the report to be submitted no later than March 16, 1987.

c. A work plan for removal of all contamination in excess of 10 ppm PCBs and for achievement of the standards set forth in paragraph 10 of the Consent Decree shall be submitted to EPA no later than March 23, 1987. The work plan shall state, at a minimum, the persons who will be doing the work, exactly what materials are to be removed and by what method, with maps and drawings as appropriate, how the material will be packaged and stored, where the material will be taken for disposal and who will transport the material. The work plan shall state a schedule for performance of the work, which shall be entirely completed, with all contaminated materials removed from the facility in accordance with the Consent Decree and all applicable regulatory requirements, no later than April 15, 1987.

d. The work plan shall also contain a proposal for sampling the facility after the contaminated material is removed, which sampling plan shall be sufficient to determine ++EP++

whether all of the material remaining contains less than 10 ppm PCBs and achieves all of the standards set forth in paragraph 10 of the Consent Decree.

Page 5

The work plan shall provide that all of the sampling to be done under this paragraph shall be complete, and the results of the sampling reported to EPA, along with conclusions as to whether the removal program succeeded in removing all contaminated material as required by the Consent Decree, no later than April 30, 1987.

5. If Plaintiff believes that any of the work or the reports required by this amendment to the Consent Decree have not been completed in accordance with the Consent Decree, as amended by this stipulation, Plaintiff shall notify Defendants in writing, and all other provisions of paragraph 16 of the Consent Decree shall apply.

6. Defendants shall submit weekly written progress reports to plaintiff, at the addresses set forth in paragraph 34 of the Consent Decree. The first such weekly report shall be submitted on February 20, 1987.

7. The dates in this stipulation will be binding on the defendants, and no extensions will be given, except in accordance with paragraphs 20 and 21 of the Consent Decree. The failure of defendants to meet any date in the stipulation shall not excuse the defendants' failure to meet any subsequent date. Claims that failure to meet the required dates was due ++EP++

to circumstances beyond the defendants' control shall be made, in writing, in accordance with the schedule set forth in paragraph 20 of the Decree and shall be considered only if the writing contains a full description of the reason(s) for the delay, the measures taken and to be taken to minimize or prevent the delay and the timetable by which those measures will be implemented.

Page 6

Failure of laboratories or other contractors to meet the necessary deadlines shall not be deemed to be "events beyond the control of defendants" unless defendants demonstrate that their contract with the contractor specifically stated the date by which the work must be performed, the contract contains a time-is-of-the-essence clause, and defendants use all reasonable means to obtain compliance with the contract.

8. There shall be no oral modifications of the Consent Decree, as amended by this stipulation. Defendants must submit any required notices in writing in the manner stated in the Consent Decree.

9. This stipulation will replace paragraphs 5 through 15 of the Consent Decree, with the exception of the attachment to the Decree setting forth the sampling plan, and the provisions of paragraph 10 with regard to clean up levels, both of which shall remain in full force and effect. All other paragraphs of the Decree shall still be binding on the parties to the Decree. ++EP++

Page 7

10. Stipulated penalties in the amount of $750 per day for each violation of the Consent Decree, as amended by this Stipulation, shall be paid in the event that defendants fail to meet any of the deadlines set forth in the Consent Decree, as amended by this Stipulation.

/s/

WILLIAM H. THAYER

EDWARD S.G. DENNIS, JR.

United States Attorney

/s/ Benjamin Paul

BENJAMIN PAUL

Counsel for defendants

/s/ James G. Sheehan

JAMES G. SHEEHAN

Assistant United States Attorney

Chief, Civil Division

/s/ Edward T. Ellis

EDWARD T. ELLIS

Assistant United States Attorney

/s/ Cynthia J. Giles

CYNTHIA J. GILES

Assistant United States Attorney

APPROVED BY THE COURT:

/s/

Cahn, J.

DATED: March 6, 1987 ++EP++

SUGARHOUSE REALTY, INC.

DOC 04 OF 04

CONSENT DECREE

03-86-C005

TSCA

OTHER

19860527

19860527

PAD981040173

SUGARHOUSE REALTY

PHILADELPHIA, PA

85-4829

03

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff

v.

SUGARHOUSE REALTY, INC. and WILLIAM H. THAYER Defendants

CIVIL ACTION NO. 85-4829

CONSENT DECREE

WHEREAS, Plaintiff United States of America ("Plaintiff"), on behalf of the Administrator of the United States Environmental Protection Agency ("EPA"), and Defendants Sugarhouse Realty, Inc. and William H. Thayer ("Defendants"), having agreed to the entry of this Consent Decree prior to trial; and

WHEREAS, the Plaintiff filed a complaint captioned United States of America v. Sugarhouse Realty, Inc. et al., Civil Action No. 85-4829 in the United States District Court for the Eastern District of Pennsylvania, (the "complaint"), pursuant to sections 7 and 17 of the Toxic Substances Control Act ("TSCA"), 15 U.S.C. Sub-section 2606 and 2616, and section 106 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9606, for injunctive relief to address the imminent and unreasonable risk of serious ++EP++ or widespread injury to health and the environment and the imminent and substantial endangerment to public health, welfare and the environment presented by the handling, storage, treatment or disposal of polychlorinated biphenyls ("PCBs") at the former Jack Frost Sugar House located at 1015-1021 Penn Street, Philadelphia, Pennsylvania (the "facility"); and

Page 2

WHEREAS, Defendant Sugarhouse Realty, Inc., a corporation, is the owner of the facility and Defendant William H. Thayer is the president of Sugarhouse Realty, Inc. and is responsible for the handling, storage, treatment and disposal of PCBs at the facility; and

WHEREAS, certain PCB equipment at the facility has been leaking, contaminating the facility with PCBs to an as yet undetermined extent; and

WHEREAS, Defendants have failed to comply with the requirements of 40 C.F.R. Part 761; and

WHEREAS, the condition of the facility and the actual and threatened release of PCBs into the environment in and around the facility presents an imminent and unreasonable risk of serious or widespread injury to health or the environment and may present an imminent and substantial endangerment to public health or welfare or the environment; and ++EP++

Page 3

ORDERED, ADJUDGED AND DECREED as follows:

1. This Court has jurisdiction of the subject matter herein and of the parties consenting hereto for the purposes of this Decree.

2. This Decree shall apply to and be binding upon the Plaintiff and the Defendants and upon their officers, directors, agents, employees, contractors, successors, heirs and assigns and upon all persons or firms acting under or for them. Each undersigned representative of each party to this Decree certifies that he or she is fully authorized by each party whom he or she represents to enter into the terms and conditions of this Consent Decree and to execute and to legally bind that party to it.

4. The Defendants shall undertake, at their own expense, remedial action to remove PCBs from the facility to the levels specified in this Consent Decree. The remedial action shall include the specific actions, and shall be completed within the time periods, set forth below. ++EP++

Page 4 PHASE I

5. Defendants shall undertake a study to determine the extent of PCB contamination at the facility. The study shall be performed in accordance with the standards and specifications set forth in Attachment A. Attachment A is incorporated herein and made a part of and enforceable under the terms of this Consent Decree. The study shall be completed and the results of the study submitted to Plaintiff within 70 days of the date this Consent Decree is entered. The study results submitted to Plaintiff shall include, at a minimum, the data gathered during the study, an analysis of that data, and conclusions concerning the extent of PCB contamination at the facility.

PHASE II

6. Defendants shall determine whether the study performed in accordance with Phase I presents sufficient data to determine the full extent of PCB contamination at the facility and shall submit their determination, in writing, to Plaintiff at the time that they submit the Phase I study results. In the event that Defendants determine that the study does not present sufficient data, or in the event that Plaintiff determines that additional sampling and testing is necessary to determine the extent of PCB contamination at the facility, Defendants shall submit to Plaintiff a proposed work ++EP++ plan for performance of additional sampling and testing for PCB contamination.

Page 5

Defendants' proposed work plan for additional sampling and testing, if any shall be required, shall be submitted to Plaintiff within 10 days after the determination has been made, either by EPA or by Defendants, that additional sampling and testing is necessary.

7. Plaintiff may approve or disapprove Defendants' proposed work plan. If Plaintiff objects to the proposed work plan or portions thereof, Plaintiff shall notify Defendants of such objections and the changes or improvements that are necessary to correct the plan. Defendants shall submit, within 7 days of receiving Plaintiff's objections, a revised work plan for Plaintiff's approval. Plaintiff may make such changes in the resubmitted plan as it deems necessary.

8. The approved work plan shall be filed with the Court as Attachment B to this Consent Decree and shall be made a part of and enforceable under the terms of this Consent Decree. The work contemplated by the approved work plan shall be completed and the results submitted to Plaintiff within 20 days of Plaintiff's approval of the work plan.

PHASE III

9. Within 15 days of the submission to Plaintiff of the Phase II work results, or within 15 days after Plaintiff and Defendants have both determined that no Phase II study is ++EP++ necessary, Defendants shall submit to Plaintiff a proposed work plan for the removal and disposal of all PCB-contaminated materials identified in the study or studies undertaken pursuant to this Consent Decree.

Page 6

10. The work plan shall be designed to require the following: Any concrete or metal surfaces at the facility identified as containing more than 10 micrograms of PCBs per 100 square centimeters (10.0 ug/100 cm2) shall be removed and disposed of either in an incinerator that complies with 40 C.F.R. Section 761.70 or in a chemical waste landfill that complies with 40 C.F.R. Section 761.75. Any water sampled at the facility and identified as containing more than 3 parts per billion PCBs (3.0 ppb) shall be removed and disposed of either in an incinerator that complies with 40 C.F.R. Section 761.70 or in a chemical waste landfill that complies with 40 C.F.R. Section 761.75. Any soil and material in the soil sampled at the facility and identified as containing PCBs shall be excavated such that the remaining soil contains PCBs at levels no greater than background level, and the excavated material disposed of either in an incinerator that complies with 40 C.F.R. Section 761.70 or in a chemical waste landfill that complies with 40 C.F.R. Section 761.75. Background is to be determined by analyzing soil collected from an area near or at the facility where there is believed to have been no PCB contamination. EPA must concur with the background level to be applied in the cleanup of PCB-contaminated material. ++EP++

Page 7

11. Plaintiff may approve or disapprove the work plan submitted by Defendants. If Plaintiff objects to the proposed work plan or portions thereof, Plaintiff shall notify Defendants of such objections and the improvements or changes that are necessary to correct the work plan. Defendants shall submit, within 7 days of receiving Plaintiff's objections, a revised work plan for Plaintiff's approval. Plaintiff may make such changes in the resubmitted plan as it deems necessary.

12. The approved work plan shall be filed with the Court as Attachment C to this Consent Decree and shall be made a part of and enforceable under the terms of this Consent Decree. The work contemplated by the approved work plan shall be completed within 45 days of its approval by Plaintiff. Upon completion of the work required by the approved work plan under this Phase III, the Defendants shall submit a certification to Plaintiff stating that the work has been completed in accordance with the work plan and applicable regulations and shall provide Plaintiff with the documents necessary to support that certification.

PHASE IV

13. Within 15 days of the submission to Plaintiff of Defendants' certification that the Phase III work has been completed, Defendants shall submit to Plaintiff a proposed plan for post-cleanup sampling and testing, designed to determine ++EP++ if all materials containing PCBs at levels higher than those described in paragraph 11 of this Consent Decree have in fact been removed as required by the approved work plan.

Page 8

14. Plaintiff may approve or disapprove the post-cleanup sampling and testing plan submitted by Defendants. In the event that Plaintiff objects to the proposed plan or portions thereof, Plaintff shall notify Defendants of such objections and the improvements or changes that are required to correct the post-cleanup sampling and testing plan. Defendants shall submit, within 7 days of receiving Plaintiff's objections, a revised work plan for Plaintiff's approval. Plaintiff may make such changes in the resubmitted plan as it deems necessary.

15. The approved plan shall be filed with the Court as Attachment D to this Consent Decree and shall be made a part of and enforceable under the terms of this Consent Decree. The work contemplated by the approved plan shall be completed and the results of the study submitted to Plaintiff within 30 days of Plaintiff's approval of the plan.

If the post-cleanup sampling and testing reveals that the cleanup has not removed the PCB-contaminated materials as required by the approved cleanup plan, or if Plaintiff determines, after an inspection of the facility, that PCB-contaminated materials have not been removed as required by the approved cleanup plan, Defendants shall submit a plan for completion of the cleanup to Plaintiff ++EP++ for approval, and the parties shall thereafter proceed in accordance with the provisions of Phases III and IV.

Page 9

Upon completion of the work required in Phase IV, Defendants shall submit a certification to Plaintiff stating that all of the work required in Phase IV has been completed, along with a description of the work performed and all documents necessary to support that certification.

16. If Plaintiff believes that the work required in any phase described above has not been completed in accordance with the standards and specifications set out in this Consent Decree and all Attachments thereto, Plaintiff shall notify Defendants in writing, stating what must be done to complete the work, and Defendants shall thereafter complete the work in accordance with Plaintiff's directions. If the Defendants disagree with any such determination by Plaintiff, Defendants may petition the Court for review. Upon such petition, Defendants shall bear the burden of demonstrating that Plaintiff's determination was not supported by substantial evidence and law.

17. The work undertaken by Defendants and their contractors or subcontractors pursuant to this Decree shall be in compliance with all applicable federal, state and local laws and regulations and the Defendants and/or their contractors or subcontractors shall obtain all permits or approvals necessary under such laws and regulations. ++EP++

Page 10

18. At all times during Phases I through IV, authorized representatives of EPA shall, upon presentation of appropriate credentials, have access to the facility for the purpose of sampling, investigating soil, surface water and groundwater contamination at the facility, observing and monitoring the remedial actions, verifying any data or information submitted to Plaintiff by Defendants, inspecting and copying documents required to assess the Defendants' compliance with this Decree, and for other lawful purposes. This right of entry and access shall be in addition to, and not in substitution for, EPA's rights of entry and access under applicable federal law.

19. In addition to the reports and documentation required to be provided to Plaintiff by Defendants under the terms of this Consent Decree, Defendants shall also provide to Plaintiff, at Plaintiff's request, any analytical data or any other documents that are, in Plaintiff's judgment, necessary to evaluate proposals submitted by Defendants, to review work done or to be done or to determine Defendants' compliance with the terms of this Consent Decree.

20. If Defendants fail to comply in a timely manner with any performance date or other requirement of this Consent Decree and such delay is caused by persons or events beyond the control of Defendants, such delay shall not be considered ++EP++ a violation of this Consent Decree.

Page 11

When circumstances are occurring or have occurred that may delay the completion of any Phase, and are known or should be known to Defendants, Defendants shall notify Plaintiff in writing of the reason( s) for and the duration of such delay and the measures taken and to be taken by Defendants to prevent or minimize the delay and the timetable by which those measures will be implemented. Such notice shall be sent not later than 7 days from the date Defendants become aware that such a delay may occur. Failure to notify Plaintiff within the time period set forth herein shall constitute a waiver of any claim that circumstances beyond Defendants' control have prevented compliance with this Consent Decree. Increased cost of compliance or a change in the economic circumstances of Defendants shall not be deemed to be "events beyond the control of Defendants."

21. If Defendants and Plaintiff agree that a delay is or was beyond the control of Defendants and if Defendants and Plaintiff agree upon the duration of such delay, the parties may, with approval of the Court, modify the Consent Decree to the extent necessary to enlarge the schedule for completion of the specific Phase(s) affected by such delay. If Defendants and Plaintiff cannot agree that the reason for the delay is or was beyond the control of Defendants, or upon the duration of such delay, Defendants may submit the matter to the Court for resolution. In such event, the Defendants ++EP++ shall bear the burden of demonstrating that Plaintiff's determination that the delay was not beyond the control of Defendants, and/or Plaintiff's determination regarding the duration of the delay, were not supported by substantial evidence and law.

Page 12

22. In the event that the Defendants fail to meet the schedule for completion of any of the Phases described in this Decree and all Attachments hereto, Defendants shall pay to the Plaintiff a penalty of $750 per day of noncompliance. The penalty shall be paid on demand of Plaintiff by Defendants by a cashier's or certified check payable to "The United States Department of Justice" sent to the United States Attorney for the Eastern District of Pennsylvania, 3310 U.S. Courthouse, 601 Market Street, Philadelphia, PA 19106, attention Edward T. Ellis.

Such stipulated penalty shall be in addition to, and shall not preclude the use of, any other remedies or sanctions, including proceedings for contempt of Court, that may be available to the Plaintiff by reason of the Defendants' noncompliance with the provisions of this Consent Decree or applicable law.

23. Defendants shall assume any and all liability arising from or related to their acts or omissions in the performance of the work contemplated by this Decree, or their failure to perform fully or complete such work. ++EP++

Page 13

24. Defendants or their contractors, as appropriate, shall purchase and maintain in force insurance policies in the maximum amount available which shall protect the United States against any and all liability arising from acts or omissions of the Defendants, their contractors or other agents in the performance of the work required by this Decree. At a minimum, Defendants or their contractors shall obtain and maintain the following types of insurance policies:

A. Worker's Compensation -- providing the coverage required by Pennsylvania state law.

B. Third-party liability coverage in the amount of $3,000,000 per occurrence, with an aggregate of $6,000,000 personal injury and property damage liability combined. Such coverage shall apply to risks typically insured under comprehensive general liability and automobile liability, and shall include coverage for both gradual, sudden and accidental pollution occurrences. Contractual liability coverage applicable to the indemnity contained in Paragraphs 25 and 26 of this Consent Decree shall be included.

Prior to commencement of work at the facility, Defendants shall provide Plaintiff with certificates of insurance and a copy of the insurance policies for Plaintiff's approval. Defendants shall not be subject to the requirements of paragraph 24(B) of this Decree if they demonstrate to Plaintiff that 3 ++EP++ insurance companies have declined to provide the coverage required under paragraph 24(B) and that no insurance company requested agreed to provide the required coverage.

Page 14

25. Within 30 days of the entry of this Decree, Defendants shall purchase a performance bond or shall open an escrow account in the amount of $250,000 dollars. The bond or escrow agreement shall assure complete performance of the work described herein and name Plaintiff as the obligee. Within 7 days of the date of the purchase of the bond or the opening of the escrow account, Defendants shall submit written certification and documentation of same to Plaintiff. In event of default, the bond or escrow agreement shall provide that the work shall be satisfactorily and fully completed and in no event shall the bond or agreement authorize the surety or escrow agent to avoid its obligation to have the work fully completed.

26. The remedial action contemplated by this Consent Decree is intended to remedy the potential endangerment and violations of law that were the bases for the filing of the complaint.

Plaintiff's approval of cleanup plans pursuant to this Decree is not intended and shall not be construed as a certification that the facility is safe or appropriate for any particular future use once the remedial action is completed.

27. During the course of the work contemplated by this Decree, Defendants shall be responsible for promptly responding to any emergencies or releases at the facility and notifying the proper governmental authorities as required by ++EP++ federal, state or local laws and regulations.

Page 15

In the event of an occurrence requiring any such notification, Defendants shall notify Plaintiff in accordance with the notice provisions of this Decree, and shall also notify the proper governmental authorities.

28. Defendants shall not make any claims, directly or indirectly, pursuant to Section 112 of CERCLA, 42 U.S.C. Section 9612, or any other provision of law, against the Hazardous Substance Response Trust Fund or the United States for expenses related to this case or this Consent Decree. Nothing in this Consent Decree shall be deemed to constitute preauthorization of a CERCLA claim within the meaning of 40 C.F.R. Section 300.25(d).

29. All factual information and documents submitted or made available to Plaintiff by Defendants pursuant to this Decree shall be available to the public unless identified as confidential by Defendants in conformity with 40 C.F.R. Part 2. Information so identified shall be treated in accordance with the regulations set forth in 40 C.F.R. Part 2, Subpart B.

30. No conveyance of title, easement or other interest in the facility shall be consummated without a provision binding and obligating all parties who acquire any interest in the facility to submit to the jurisdiction of this Court and all requirements and enforcement provisions of this Consent Decree. At least 60 days prior to any conveyance, the Defendants ++EP++ shall notify Plaintiff by registered mail of their intent to convey any interest in the property and the steps taken to comply with the provisions of this paragraph.

Page 16

31. The Court shall retain jurisdiction of this matter for the purposes of implementing, enforcing and modifying the terms and conditions of this Consent Decree and for the purpose of adjudicating all disputes among the parties that may arise under the provisions of this Consent Decree, to the extent that this Decree provides for resolution of disputes by the Court.

32. Any dispute that arises with respect to the meaning, application, interpretation, amendment or modification of this Consent Decree and any Attachments hereto, or with respect to Defendants' compliance herewith or any delay hereunder, the resolution of which is not provided for in the preceding paragraphs, shall in the first instance be the subject of informal negotiations. If Plaintiff and Defendants cannot resolve the dispute within ten (10) days of the time the dispute arises, however, it shall be presented to the Court for resolution upon written notice. Unless the dispute results from Plaintiff's attempts to amend, modify or enforce this Decree, it shall be the responsibility of Defendants to file the documents necessary to notify the Court of the dispute. Defendants' failure to file papers with the Court within 10 ++EP++ days of the time the dispute arises shall be deemed a waiver of the right to judicial review or relief, unless Plaintiff agrees in writing to an extension of the period for seeking review or relief.

Page 17

In all disputes before the Court, the Defendants shall bear the burden of proof.

33. Submission of any matter to the Court for resolution shall not extend any of the deadlines set forth in this Decree or any Attachments hereto unless the parties agree to such extension in writing or the Court allows the extension upon motion and good cause shown.

34. Notices under this Consent Decree, except as otherwise provided herein, shall be given by first class U.S. Mail, postage prepaid, to the parties at the following addresses:

The Plaintiff: Christopher B. Pilla (3HW13) United States Environmental Protection Agency, Region III 841 Chestnut Street Philadelphia, PA 19107 Edward T. Ellis Cynthia J. Giles Assistant United States Attorneys 3310 United States Courthouse 601 Market Street Philadelphia, PA 19106 The Defendants: Sugarhouse Realty, Inc. Route 309 and Hilltop Rd. Coopersburg, PA Attn: William H. Thayer ++EP++

Page 18

35. This Consent Decree shall not relieve Defendants of any duty to comply with any federal, state or local laws or regulations that may apply to Defendants by virtue of their ownership or operation of the facility.

37. Following submission to Plaintiff of Defendants' certification that all work required in Phase IV has been performed, Defendants shall petition the Court for termination of this Consent Decree, which petition shall recite the terms of this paragraph of the Consent Decree. The Decree shall then terminate 90 days thereafter unless Plaintiff objects within that time period or brings to the attention of the Court any dispute or issue under this Decree that is not resolved. The 90 day period shall be tolled while any objection or dispute is resolved. Upon resolution of any objection or dispute, Plaintiff shall notify the Court, requesting a ruling on Defendants' petition for termination. Termination shall not affect the provisions of paragraph 23 of this Consent Decree. Dated: May 23, 1986 /S/ Edward N. Cahn EDWARD N. CAHN U.S. District Judge ++EP++

Page 19

Defendants appear by counsel

and waive answer and any defenses

and hereby consent to the entry

of this Consent Decree.

/s/ BENJAMIN PAUL, ESQUIRE Attorney for defendants Sugarhouse Realty, Inc., and William H. Thayer /s/ F.HENRY HABICHT, II Assistant Attorney General, Lands and Natural Resources Division U.S. Department of Justice /s/ Assistant Administrator for Enforcement and Compliance Monitoring, Environmental Protection Agency /s/ Patricia Kablach Casano PATRICIA KABLACH CASANO Attorney, Land and Natural Resources Division /s/ BRUCE M. DIAMOnD Regional Counsel Region III United States Environmental Protection Agency EDWARD S.G. DENNIS, JR. United States Attorney

/s/ James G. Sheehan

JAMES G. SHEEHAN

Assistant United States Attorney

Chief, Civil Division

OF COUNSEL: Margaret Cardamone Henry H. Sprague Regional Attorneys /s/ Edward T. Ellis EDWARD T. ELLIS Assistant United States Attorney

/s/ Cynthia J. Giles

CYNTHIA J. GILES

Assistant United States Attorney

++EP++

Page ATT-A-1 Attachment A

WILLIAM H. THAYER

Route 309 & Hilltop Road, Coopersburg, PA 18036 (215)282-4100

January 17, 1986

United States Environmental Protection Agency

Region III

Mr. Christopher B. Pilla

PCB Compliance Monitoring Program Coordinator

841 Chesnut Building

Philadelphia, PA 19107

Dear Chris,

Following is a proposal as presented to me by Mr. Mel Tomlinson of Eldridge, Inc. for gridding and sampling the suspect contaminated areas at the Jack Frost Facility.

Persuant to our recent discussion regarding Phase II of the proposed plan (as discussed in our letter of November 14, 1985) at the Jack Frost Facility, please find below a proposal for gridding and sampling the suspect contaminated areas.

PHASE II: GRID AND SAMPLE SUSPECT CONTAMINATED AREA(S)After careful review of the various transformer locations at the Jack Frost Facility it is our opinion that there are four locations that have to be sampled according to the procedure as shown in the EPA guidelines.

A. 1st Floor Char House #3

1. Room size, approximately 15' x 20'

2. From the center of the room (transformer location) the floor will be gridded out and a sample taken at 12" intervals and/or every square foot and three feet up the sidewalls of the room on the walls adjacent to the spill. Due to the unknown extent of the PCB liquid migrating under the floor tile 1" core samples will be taken on the floor. If necessary the sampling would proceed at 3" and 6" intervals progressively. The side walls will be sampled using Hexane wipes to check for contamination; then if found 1", 3" and 6" cores will be taken respectively.

B. 1st Floor Entrance to Machine Shop

1. Spill area, approximately 15' x 25' and triangular area approximately 550 square feet.

2. Samples will be taken in the spill area (as described in Section A-2 of the outline) on a square foot basis in the areas identified as actually PCB contaminated. ++EP++

Page ATT-A-2

The problem lies in this area in that there is an oil containment sump below an existing generator. This sump will be sampled the same as the other rooms; i.e. every square foot with core samples on the bottom at 1", 3", 6" intervals and Hexane wipes on the 4 sides at square foot intervals. In the overall area two walls will be sampled up to 3' with Hexane wipes. If further sampling is required, it will be accomplished as previously outlined. In the triangular area of suspect contamination, samples will be taken at 3 square feet intervals using Hexane wipes. If contamination is present gridding will continue. Random samples will also be taken outside a side door adjacent to the transformer(s). If spillage is confirmed, sampling will be performed on a square foot basis at the outlined intervals.

3. Just inside the entrace to the first floor machine shop, there is a sump of undetermined depth, approximately 3' x 3'. It is our recommendation that this sump be drained and its contents be drummed pending analysis. The solids in the bottom of the sump should be removed and drummed pending analysis. The side walls and bottom (if solid) should have surface samples taken for possible contamination. At the time all this work is taking place, the opening to the sump should be sealed to insure that no more water will be introduced. After cleaning, the sump should be inspected to find if it is attached to any outside sewer lines. If this is suspected, a sye test should be performed to locate the exact point of discharge.

C. Engine Room

1. Room size, approximately 80' x 50'

2. The area of the spill in this room covers approximately one third of total floor. This area, approximately 25' x 15', will be sampled on a square foot basis with cores being taken at 1", 3", 6" depths as necessary. The two adjacent walls in this area will be sampled up to a height of 3' using Hexane wipes. The remainder of the room as it radiates away from the spill will be sampled at 3 square feet intervals with surface wipes (Hexane) and core sampling if deemed necessary by original sampling. The two adjacent walls will again be sampled on 3 square feet intervals with Hexane wipes.

3. There is an entrance way that connects the engine room and the first floor machine shop. This entrace way, approximately 10' wide and 80' long, should be sampled every 6 square feet as a control and to insure that contamination was not spread through personnel movement in and out of the work area(s).

D. 3rd Floor Warehouse #3

1. Approximate size 15' x 50', room dimensions.

2. The area of the spill in this room is approximately half ++EP++ that of the room dimensions, 15' x 30'.

Page ATT-A-3

This area should be sampled at 1 square foot intervals at depths of 1", 3" 6" respectively, according to the results of the analytical work performed. The three adjacent walls should be sampled up to 3' with Hexane wipes to insure the level of possible contamination. The wall that was removed to access the transformers was considered to be contaminated up to the designated 3' level. This debris is being held on plastic pending disposal at a licensed facility as PCB contaminated material. The remaining section of the room will be surface sampled (after removal of all loose debris) at 3 square feet intervals including 3 feet up each adjacent wall. Surface samples will be taken every 6 square feet outside the adjacent doorway and in the major traffic area for a distance to be established with the EPA representative.

In conclusion, let it be known that if any sampling done results in levels of contamination greater than those allowed by the EPA, the grid size will be reduced and the depth of sampling increased to meet those specifications outlined through discussions with the EPA representative(s).

The gridding and sampling as outlined in this letter cannot properly be completed until Phase I (as referenced in our letter dated November 14, 1985) is completed and any and all debris, contaminated or decontaminated, has been removed from the building and properly handled.

Chris, I hope the above meets with your approva. If not, we will work with you any way we can within reason for an outcome satisfactory to all.

Sincerely,

/S/Bill Thayer

Willam H. Thayer ++EP++

GRAPH/CHART OMITTED ++EP++

GRAPH/CHART OMITTED ++EP++

SUGARHOUSE REALTY, INC.

DOC 03 OF 04

PARTIAL PRELIMINARY INJUNCTION

03-86-C005

TSCA

OTHER

19860527

19851120

PAD981040173

SUGARHOUSE REALTY

PHILADELPHIA, PA

85-4829

03

THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA Plaintiff

v.

SUGARHOUSE REALTY, INC. and WILLIAM THAYER Defendants

CIVIL ACTION NO. 85-4829

PARTIAL PRELIMINARY INJUNCTION

AND NOW, this 10 day of November, 1985, upon motion of the plaintiff and with the consent of the defendants, it is hereby

ORDERED that defendants shall, by February 1, 1986, remove from the old Jack Frost Sugar Refinery facility, 1015-1021 Penn Street, Philadelphia, Pennsylvania and dispose of all PCB Transformers, PCB Items, PCB Capacitors, and all drums containing hazardous wastes or hazardous substances, such removal and disposal to be conducted in accord with all applicable federal, state, and local laws; PROVIDED THAT defendants shall complete draining and flushing the PCB transformers and removal of the flushed material by December 16, 1985.

It is further ORDERED that by February 1, 1986 defendants shall remove and dispose of all trash and loose debris within the buildings on the premises, including but not limited to broken glass, lumber, cardboard, plaster, cement, concrete, brick, wallboard, tile, pipes, wiring, sheet metal, metal material, ++EP++ rubber items, paper, and cloth materials. Trash and loose debris contracted by PCB's or hazard wastes or hazardous substances shall be handled and disposed of in accord with all applicable federal, state, and local laws.

Page 2

The Court retains jurisdiction over this case to enter such other further orders as may become appropriate.

/s/ Edward N Cahn

EDWARD N. CAHN

United States District Judge

Defendants appear by counsel and hereby consent to entry of this order.

(ILLEGIBLE) PAUL, ESQUIRE

Attorney for Defendants

EDWARD S. G. DENNIS, JR. United States Attorney

/s/

ALEXANDER EWING, JR.

Assistant United States Attorney

Chief, Civil Division

/s/Edward T. ELLIS

EDWARD T. ELLIS

Assistant United States Attorney

++EP++

SUGARHOUSE REALTY, INC.

DOC 02 OF 04

ORDER

03-86-C005

TSCA

OTHER

19860527

19860823

PAD981040173

SUGARHOUSE REALTY

PHILADELPHIA, PA

85-4829

03

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA Plaintiff

v.

SUGARHOUSE REALTY, INC., et al. Defendant

CIVIL ACTION NO. 85-4829

ORDER

Upon motion of the United States and with the consent of the defendants, it is hereby ORDERED as follows: that Defendants, their agents, employees, and all persons in active concert with them be and are hereby enjoined from:

(1) Permitting access to PCB transformers, PCB contaminated transformers, PCB capacitors, PCB liquid or PCB contaminated material (collectively PCBs) located in or around the former Jack Frost Sugar House property at 1015-1021 Penn Street, Philadelphia, Pennsylvania, by persons other than Defendants or persons employed by them for purposes of complying with this Order and duly authorized public officials.

Specifically, Defendants are ORDERED TO:

(A) Immediately post a qualified security guard at the facility during all twenty-four hours of each day this ORDER is in effect; ++EP++

Page 2

(B) As promptly as feasible, and in any case no later than 48 hours following entry of the ORDER, to commence the erection of a barrier fence with secure locks adequate to prevent access through reasonably forseeable efforts of trespassers.

(C) Immediately post signs on all four sides of the facility and at all entryways with letters at least 6 inches in height which state:

WARNING KEEP OUT CONTAINS PCBs A TOXIC SUBSTANCE

(2) Removing, altering or otherwise handling the PCBs in the former Jack Frost Sugar House in any manner other than that required by the regulations implementing the Toxic Substances Control Act, as set forth at 40 C.F.R. Sub-section 761.1 et seq. Nothing contained in this Order shall relieve Defendants of the obligation to comply with the requirements of the regulations implementing the Toxic Substances Control Act including the requirement of 40 C.F.R. Section 761.30 (a) (1) (iii) that cleanup of released PCBs must be initiated as soon as possible but in no case later than 48 hours after discovery of the release.

(3) Removing, altering, or otherwise handling the PCBs in the Jack Frost Sugar House without prior notice to the United States Environmental Protection Agency, Region III. Any such notice must be made to Christopher B. Pilla, Region III PCB Compliance Monitoring Program Coordinator or to any person acting for him. ++EP++

Page 3

The parties have agreed that, within 48 hours of entry of this order defendants shall enter into a binding contract with a (ILLEGIBLE) professional engineer or other qualified cleanup contractor for assistance in cleanup of PCBs at the facility. The terms of the cleanup shall be specified in subsequent orders of the Court upon appropriate motion of the parties. The parties have agreed further that nothing in this agreement shall be construed as a waiver by plaintiff of its right to seek further injunctive relief against any of the defendants, to take administrative action against any of the defendants, or to take any other appropriate legal action, including but not limited to recovery of response costs pursuant to 42 U.S.C. Section 9607.

Dated: August 22, 1985

/s/ Edward N. Cahn

EDWARD N. CAHN

U.S. District Judge

Defendants appear by counsel and waive defense and hereby consent to entry of this order.

BENJAMIN (ILLEGIBLE) ESQUIRE

Attorney for Defendants

EDWARD S. G. DENNIS, JR.

United States Attorney

/s/ Alexander Ewing, Jr.

ALEXANDER EWING, JR.

Assistant United States Attorney

/s/ Edward T. Ellis

EDWARD T. ELLIS

Assistant United States Attorney

++EP++

SUGARHOUSE REALTY, INC.

DOC 01 OF 04

COMPLAINT

03-86-C005

TSCA

OTHER

19860527

19850819

PAD981040173

SUGARHOUSE REALTY, INC.

PHILADELPHIA, PA

CA-85-4829

03

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff

v.

SUGARHOUSE REALTY, INC. WILLIAM H. THAYER JOSEPHINE THAYER Defendants

CIVIL ACTION NO.(ILLEGIBLE)

COMPLAINT

Plaintiff, United States of America on behalf of and at the request of the Administrator of the United States Environmental Protection Agency ("EPA"), alleges as follows:

INTRODUCTION AND NATURE OF CAUSE

1. This is a civil action instituted pursuant to Sections 7 and 17 of the Toxic Substances Control Act ("TSCA"), 15 U.S.C. Sub-Section 2606 and 2616, and Section 106 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9606, for injunctive relief to address the imminent and unreasonable risk of serious or widespread injury to health and the environment and imminent and substantial endangerment to the public health, welfare, and the environment presented by the handling, storage, treatment or disposal of polychlorinated biphenyls (PCBs) at Defendant's facility. ++EP++

Page 2

2. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. Section 1331, 28 U.S.C. Section 1345, 15 U.S.C. Sub-Section 2606 and 2616, and 42 U.S.C. Section 9606.

3. Venue is proper in this Court pursuant to 28 U.S.C. Section 1391(b) and (c), and 42 U.S.C. Section 9613, because, at all times relevant to events forming the basis of this Complaint, Defendant was doing business in this judicial district. The claims stated herein arose in this judicial district.

DEFENNDANTS

4. Defendant Sugarhouse Realty, Inc. is a corporation incorporated under the laws of the Commonwealth of Pennsylvania on November 14, 1984. Defendant corporation has an office located at Route 309 and Hilltop Road, Coopersburg, Lehigh County, Pennsylvania, and has a place of business at 1015-1021 Penn Street, Philadelphia, Pennsylvania.

5. On or about December 14, 1984, Defendant Sugarhouse Realty, Inc., purchased the former Jack Frost Sugar House ("the facility") located at 1015-1021 Penn Street, Philadelphia, Pennsylvania.

6. Defendant William H. Thayer is president and Defendant Josephine Thayer is secretary of Defendant Corporation, and the individual Defendants are solely responsible for handling, storage, treatment, and disposal of PCBs at the facility. ++EP++

Page 3 STATEMENT OF FACTS

7. Inspections of the facility performed by EPA personnel in April and November of 1984 prior to Defendant's purchase of the property revealed the existence of ten PCB transformers, three empty PCB-contaminated transformers, and approximately 150 PCB-containing capacitors. The PCB transformers contain from 270 to 680 gallons each of PCB liquid.

8. The EPA inspections also revealed the violation of regulations promulgated under Section 6(e) of TSCA, 15 U.S.C. Section 2605(e), which require quarterly inspections of such PCB equipment. As a result, an administrative Complaint was filed against the then owners of the facility.

9. On December 14, 1984, Defendants purchased the facility. On January 10, 1985, EPA notified Defendant William Thayer by letter of his responsibilities regarding the PCB equipment under TSCA. (A copy of this letter is attached as Exhibit A to Affidavit of Christopher B. Pilla).

10. EPA personnel inspected the facility on July 2, 1985. This inspection revealed that two of the PCB transformers originally holding 270 gallons each of PCB liquid were completely empty, and that another PCB transformer was partially empty.

11. EPA inspectors took five samples of material for analysis: from the liquid found on the building floor, from soil in the same room, from some other electrical equipment found on the floor of the room, and from water found in the sump outside the building. All samples have been analyzed and show significant ++EP++

PCB contamination, clearly indicating that the PCB equipment had been leaking.

Page 4

11. EPA inspectors took five samples of material for analysis: from the liquid found on the building floor, from soil in the same room, from some other electrical equip,ent found on the floor of the room, ad from water found in the sump outside the building.

12. PCBs are toxic chemical substances which have been regulated by the Environmental Protection Agency under several environmental statutes. In the preamble to the final rule promulgated under Section 6(e) of TSCA, 15 U.S.C. Section 2605(e) establishing requirements relating to manufacturing, processing, distribution in commerce and use of PCBs EPA stated:

EPA finds that reproductive effects, developmental toxicity, and oncogenicity are areas of concern and may produce effects in humans exposed to PCBs.

Available data show that some PCBs have the ability to alter reproductive processes in mammalian species, sometimes even at doses that do not cause other signs of toxicity. Animal data and limited available human data indicate that prenatal exposure to PCBs can result in various degrees of developmentally toxic effects. Postnatal effects have also been demonstrated on immature animals following exposure prenatally and via breast milk.

Available animal studies indicate an oncogenic cancer causing potential (the degree of which would be dependent on exposure).

47 Fed. Reg. 37342, 37344 (August 24, 1982).

13. Pursuant to Section 14 of CERCLA, 42 U.S.C. Section 9614, "hazardous substance" means, among other alternatives, any substance appearing ++EP++

on the hazardous substance list compiled pursuant to Section 311(b)( 2)(A) of the Clean Water Act ("CWA"), 33 U.S.C. Section 1321(b)(2)(A), or any substance designated a toxic pollutant pursuant to Section 307( a) of CWA, 33 U.S.C. Section 1317.

Page 5

PCBs have been identified as hazardous under both of these provisions of CWA. 40 C.F.R. Sub-Section 116.4 and 129.4(f).

FIRST CAUSE OF ACTION TOXIC SUBSTANCES CONTROL ACT

14. The allegations contained in paragraphs one through thirteen are incoporated herein by reference.

15. Pursuant to the regulations promulgated under Section 6(e) of TSCA, 15 U.S.C. Section 2605(e), found at 40 C.F.R. Part 761, any intentional or accidental leakage or other uncontrolled discharge of PCBs into the environment is defined as "disposal", 40 C.F.R. Sub-Section 761.3 and 761.60(d)(2), which must conform to the provisions of 40 C.F.R. Section 761.60 (a). Defendants have not complied, are not complying, and have refused to comply with the requirements of 40 C.F.R. Section 761.60 (a).

16. Pursuant to 40 C.F.R. Section 761.30(a)(1)(iii), if a PCB transformer is found to have a leak which results in any quantity of PCBs running off or about to run off the external surface of the transformer, the transformer must be repaired or replaced to eliminate the source of the leak. In all cases any leaking material must be cleaned up and properly disposed of according to disposal requirements of 40 C.F.R. Section 761.60. Cleanup of the released PCBs must be initiated as soon as possible, but in no ++EP++ case later than 48 hours after discovery of the release.

Page 6

Until appropriate action is completed, any active leak of PCBs must be contained to prevent exposure of humans or the environment and inspected daily to verify containment of the leak. Defendants have not complied, are not complying, and have refused to comply with the requirements of 40 C.F.R. Section 761.30(a) (1) (iii).

17. Defendants' continuing failure and refusal to comply with the requirements of 40 C.F.R. Sub-Section 761.60(a) and 761.30(a) (1) (iii) are violations of Section 15(1) (B) of TSCA, 15 U.S.C. Section 2614(1) (B), and subject Defendants to appropriate injunctive relief.

SECOND CAUSE OF ACTION TOXIC SUBSTANCES CONTROL ACT

18. The allegations contained in paragraphs 1 through 17 are incorporated herein by reference.

19. At all times relevant to this action, persons including children have been on the facility grounds collecting scrap metal, and persons under contract with the owner have been working within the facility.

20. There has also been vandalism of the facility, including the PCB equipment and other equipment nearby. All of these factors demonstrate significant potential for human exposure to PCBs at the facility. ++EP++

Page 7

21. On or about July 8, 1985, EPA personnel met with Defendant William H. Thayer and a person allegedly contracted by Thayer to perform a cleanup of the facility. At that time Mr. Thayer agreed to fence the entire facility property, to post a twenty-four hour guard, to evaluate the extent of contamination, and to cleanup all PCB contaminated material at the facility in accordance with all applicable federal statutes and regulations.

22. In a letter dated July 16, 1985, EPA requested from Mr. Thayer confirmation in writing of the promises made by Mr. Thayer at the July 8 meeting. No such confirmation has been received by EPA as of the filing of this Complaint. (A copy of this letter is attached as Exhibit B to Affidavit of Christopher B. Pilla.)

23. Since July 2, 1985 additional destruction of the electrical equipment in the building has occurred. Furthermore, the facility is not guarded on a twenty-four hour basis and no effective barriers have been erected to prevent unauthorized access.

24. Pursuant to Section 7 of TSCA, 15 U.S.C. Section 2606, the Administrator of EPA may commerce a civil action in an appropriate district court of the United States for such temporary or permanent relief as may be necessary to protect health or the environment from unreasonable risk against any person who uses or disposes of an imminently hazardous chemical substance ++EP++

Page 8

25. The EPA Administrator's duly authorized representative has designated this facility as containing imminently hazardous chemical substances and mixtures due to Defendants' policies with regard to the use, handling, and disposal of PCBs at the facility. Therefore, Plaintiff has authority to bring this action under Section 7(a) (1) (B) of TSCA, 15 U.S.C. Section 2606(a) (1) (B), and this Court has the authority to grant the relief sought.

26. The conditions presently existing at the facility pose an unreasonable risk of serious or widespread injury to health or the environment.

THIRD CAUSE OF ACTION COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT

27. The allegations contained in paragraphs 1 through 26 are incorporated herein by reference.

28. Section 106(a) of CERCLA, 42 U.S.C. Section 9606(a), provides as follows: "when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat, and the district court of the United States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public interest and the equities of the case may require...." ++EP++

Page 9

29. The Regional Administrator of EPA, Region III, a duly authorized delegate of the President has determined that there is an imminent and substantial endangerment to the public health, welfare, and the environment at the site owned by Defendants.

30. Pursuant to Section 101(22) of CERCLA, 42 U.S.C. Section 9601( 22) "Release" is defined as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, but excludes (A) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons, (B) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine, (C) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954, if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under Section 170 of such Act, or, for the purposes of section 9604 of this title or any other response action, any release of source byproduct, or special nuclear material from any processing site designated under section 7912(a) (1) or 7942(a) of this title, and (D) the normal application of fertilizer".

31. Pursuant to Section 101(8) of CERCLA, 42 U.S.C. Section 9601( 8), "Environment" is defined as "(A) the navigable waters, the waters ++EP++

of the contiguous zone, and the ocean waters of which the natural resources are under the exclusive management authority of the United States under the Magnuson Fishery Conservation and Management Act, and (B) any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States".

Page 10

32. The leakage and spillage of PCBs at Defendants' facility constitutes a release into the environment within the meaning or 42 U. S.C. Sub-Section 9601(22), (8) and 9606.

33. The actual and threatened release of PCBs into and from the facility owned by Defendants constitutes an imminent and substantial endangerment to the public health, welfare, and the environment at the facility.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff the United States of America prays that this Court:

A. Issue an injunction requiring Defendants to perform the following tasks:

1. Defendants must cleanup all spilled PCBs, whether liquid or as contaminants of solid materials, at the former Jack Forst Sugar House (the facility). Specifically, Defendants must, within 48 hours, execute a binding contract with a competent professional engineer or other qualified cleanup contractor for assistance in such cleanup. ++EP++

Page 11

The cleanup must be conducted in accordance with the terms of the PCB requirements set forth at 40 C.F.R. Section 761.60. All reasonable efforts must be undertaken to assure that cleanup is conducted as expeditiously as feasible, including, but not limited to, twenty-four hour work shifts. Cleanup shall be defined as removal of PCBs to background levels of PCBs as determined by sampling in nearby areas without potential for contamination from this or any other known source.

2. Prior to removal of PCBs, Defendant must conduct sampling of PCB contaminated areas, including core samples of the concrete floor in the room supporting the PCB transformers, using a grid pattern with six inch spacing, to a depth of at least 3 inches and samples from all adjacent metal trenches, drains, sumps and any other openings which would permit the liquid PCBs to migrate. Samples must also be taken for the purposes of determining whether PCBs have migrated to the sump drain outside the transformer room, including sampling of the drain itself and all connecting piping.

All samples must be collected in accordance with EPA procedures described in Chapter 3 of EPA's TSCA PCB Inspection Manual. Samples must be analyzed by EPA Method 608.

Following removal of the PCBs, Defendants must conduct sampling of all areas originally revealing PCB contamination, using the sampling and analysis techniques required herein. ++EP++

Page 12

3. Until appropriate cleanup is completed, Defendants must take all appropriate measure to prevent exposure of humans or the environment to PCBs at the facility. Such containment measures shall include, but need not be limited to, the following:

(A) Maintenance of a qualified security guard at the facility during all twenty-four hours of each day until completion;

(B) Maintenance of a barrier fence with secure locks adequate to prevent access through reasonably foreseeable efforts of trespassers;

(C) Maintenance of signs on all four sides of the facility and at all entry ways with letters at least 6 inches in height which state:

KEEP OUT

CONTAINS PCBs

A TOXIC SUBSTANCE

4. Until appropriate cleanup is completed, defendants must contain all leaks of PCBs including but not limited to, at a minimum, use of trenches, dikes, buckets, pans, piping, plugs and other suitable means to restrict the lateral flow or movement of PCBs and to limit the potential for vertical movement of PCBs through soil. Any dikes, trenches or similar instruments used for this purpose must be cleaned to remove PCBs. ++EP++

Page 13

5. Defendants must dispose of all PCB liquids involved in the cleanup in an incinerator which complies with 40 C.F.R. Section 761.70. All other waste materials must be disposed of in a chemical waste landfill that complies with 40 C.F.R. Section 761.75.

6. Any transport of waste PCB material must be conducted in compliance with the requirements of the Resource Conservation and Recovery Act and imlementing regulations. Any container used for the transport of waste PCB material shall comply with the Shipping Container Specification of the Department of Transportion (DOT), 49 C. F.R. 178.80 (Specification 5 container without removable head), 178.82 (Specification 5B container without removable head), 178.102 (Specification 6D overpack with Specification 2S (Section 178.35) or 2SL (Section 178.35a) polyethylene containers) or 178.116 (Specification 17E container).

7. Any container used for the storage of non-liquid PCBs shall comply with the specifications of 49 CFR 178.80 (Specification 5 container), 178.82 (Specification 5B container) or 178.115 (Specification 17C container). As an alternate, containers larger than those specified in DOT Specifications 5, 5B, or 17C may be used for non-liquid PCBs if the containers are designed and constructed in a manner that will provide as much protection against leaking and exposure to the environment as the DOT Specification containers, and are of the same relative strength and durability as the DOT Specification containers. ++EP++

Page 14

8. Cleanup shall be deemed completed only after notice to the United States Environmental Protection Agency, Region III and written certification by the EPA that the cleanup has been satisifactorily completed. Notice must be in writing and submitted to Christopher B. Pilla, PCB Compliance Monitoring Program Coordinator, 841 Chestnut Building, Philadelphia, Pennsylvania. Notice must be accompanied by the results of the sampling required in paragraph 2 above.

9. If any PCB articles are retained at the facility during or following completion of the cleanup as articles stored for disposal, the facility must be modified to meet the criteria established at 40 C. F.R. Section 761.65(b) or (c), as appropriate.

10. So long as PCB transformers are maintained at the facility, Defendants must comply with the inspection and recordkeeping requirements of 40 C.F.R. Section 761.30.

11. At least 15 prior days to any sale, assignment, or other transfer by Defendants of responsibility for the facility, Defendants must give written notice of such intended transfer to Christopher B. Pilla, PCB Compliance Monitoring Program Coordinator, EPA Region III. Such notice must be accompanied by evidence that notice of this Injunction has been given to the intended transferee.

B. Retain jurisdiction over this action until all PCB equipment is permanently removed from the facility.

C. Award Plaintiff all costs incurred by it in this action. ++EP++

Page 15

D. Award Plaintiff all other relief which the Court deems necessary and proper.

Respectfully submitted,

F. HENRY HABICHT, II

Assistant United States Attorney

Land & Natural Resource Division

United States Department of

Justice

EDWARD S. G. DENNIS, JR.

United States Attorney

/s/

ALEXANDER EWING, JR.

Assistant United States Attorney

/s/ Edward T. Ellis

EDWARD T. ELLIS

Assistant United States Attorney

ROBERT VAN HEUVELEN, Attorney

Environmental Enforcement Section

United States Department of

Justice

of Counsel:

BRUCE M. DIAMOND

Regional Counsel

Region III

United States Environmental

Protection Agency

MARGARET M. CARDAMONE

Regional Counsel

Region III

United States Environmental

Protection Agency ++EP++

CANNELTON INDUSTRIES INC

DOC 02 of 02

CONSENT DECREE

03-86-C002

TSCA

OTHER

19860203

19860203

WVD007944366

CANNELTON INDUSTRIES INC

CANNELTON, WV

83-2406,2388,84-2708

03

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

UNITED STATES OF AMERICA, Plaintiff,

vs.

CANNELTON INDUSTRIES, INC., Defendant.

CIVIL ACTION NO. 83-2406

AND

CANNELTON INDUSTRIES, INC., Plaintiff,

vs.

WILLIAM D. RUCKELSHAUS, Administrator of the United States Environmental Protection Agency, Defendant.

CIVIL ACTION NO. 83-2388

AND

CANNELTON INDUSTRIES, INC., a West Virginia corporation, Plaintiff,

vs.

WILLIAM D. RUCKLESHAUS, Administrator, United States Environmental Protection Agency Defendant.

CIVIL ACTION NO. 84-2078

CONSENT DECREE

WHEREAS:

1. These matters commenced when Cannelton Industries, Inc. ("Cannelton"), filed a complaint for declaratory relief ++EP++

on August 10, 1983, at Docket No. 83-2388, against the Administrator, United States Environmental Protection Agency (EPA), for an order declaring its rights and responsibilities with respect to the storage and disposal of polychlorinated biphenyls (PCBs) which Cannelton spilled in the Bullpush Slope of its Mine No. 105 on March 25, 1982;

Page 2

2. The United States, at EPA's request and on its behalf, filed a complaint against Cannelton on August 22, 1983, at Docket No. 83-2406, alleging violations of the Toxic Substances Control Act (the Act), 15 U.S.C. Section 2601 et seq., and regulations promulgated pursuant to that statute at 40 C.F.R. Part 761 concerning the use and disposal of PCBs, regulated under section 6(e) of the Act, 15 U.S.C. Section 2605( e).

3. The United States answered in Docket No. 83-2388 on November 4, 1983. Cannelton answered on November 4, 1983, in Docket No. 83-2406, and filed a simultaneous counterclaim against the United States.

4. Cannelton commenced a third action on March 5, 1984, docketed at 84-2078, by filing a complaint, pursuant to section 21 of the Act, requesting an order to compel the Administrator of EPA to initiate a rule-making proceeding to amend 40 C.F.R. Part 761. The United States answered on May 1, 1984.

5. The actions docketed at Nos. 83-2388 and 83-2406 were consolidated by order of the Court dated August 8, 1984.

6. Cannelton is a West Virginia corporation doing business in the State of West Virginia. ++EP++

Page 3

7. Cannelton operated an underground coal mine, Mine No. 105, near Cannelton, West Virginia, in Kanawha County, West Virginia, under a lease of the coal until exhaustion, until it closed the mine in April, 1982.

8. In preparing to close Mine No. 105, Cannelton employees removed equipment from the mine on March 25, 1982. As part of this effort, Cannelton employees attempted to haul a PCB Transformer up the "Bullpush Slope" area of Mine No. 105 to the surface. During this process, however, the PCB Transformer struck a wall of the Bullpush Slope and ruptured. Approximately 447 gallons of PCB fluid spilled out of the PCB Transformer and flowed down the Bullpush Slope. The PCB fluid contaminated an area approximately 190 feet long by 10 feet wide within the Bullpush Slope, as well as part of a concrete wall within the Bullpush Slope.

9. The parties hereto, Cannelton and the United States, agree and the Court finds that settlement of this matter is in the public interest and that the entry of this Decree without further litigation is the most appropriate means of resolving this matter.

NOW, THEREFORE, without trial on any issue of law or fact and upon the consent of the parties, by their attorneys and authorized officials, it is hereby ORDERED, ADJUDGED and DECREED as follows:

I Jurisdiction and Parties

A. This Court has jurisdiction over the subject matter of these actions pursuant to 28 U.S.C. Sub-Section 1331 and 1345, and ++EP++

section 17 of the Act, 15 U.S.C. Section 2616, and jurisdiction over the parties hereto.

Page 4

Case No. 84-2078 is hereby consolidated with Dockets 83-2406 and 83-2388.

B. The provisions of this Decree shall apply to and be binding upon the parties and upon their officials, officers, employees, servants, agents, successors, assigns and all persons in active concert or participation with them who have actual notice of this Decree by personal notice or otherwise. Cannelton shall give written notice of this Consent Decree to any successors in interest prior to transfer of its leasehold, or any other interest whatsoever it may have in Mine No. 105, and shall simultaneously verify to EPA, in writing, that Cannelton has given such notice.

C. Notice of the existence of this Consent Decree shall be made on the lease of the coal in Mine No. 105 and shall be recorded with the local office having responsibility for the recording of deeds and other such instruments in Kanawha County, West Virginia, and in any other county in which any portion of Mine No. 105 may be situated.

II Remedial Action Concerning the PCB Spill

Cannelton shall take the following actions concerning the PCB spill:

A. Cannelton has prepared a work plan for reopening Mine No. 105 in order for workers to enter the mine for remedial ++EP++ construction work.

Page 5

The plan explains how Cannelton will conduct the remedial construction work. The plan has been submitted for approval to the federal Mine Safety and Health Administration (MSHA). MSHA has acknowledged receipt of the plan and has indicated that it will evaluate the adequacy of the plan during an opening inspection and during other inspections;

B. Having received MSHA's acknowledgement of the work plan, Cannelton will provide specifications to EPA on or before January 31, 1986, as to the bentonite to be pumped in the remedial operation, described in paragraph C below, sufficient to permit EPA to determine the permeability and general fitness for use of the bentonite to cover the contaminated area inside the Bullpush Slope, and to approve or disapprove the specifications.

C. Within 60 days of receiving approval by EPA of the specifications for the bentonite, or within 60 days of the entry of this Decree by the Court, whichever comes later, Cannelton will begin the remedial work described below. Cannelton will have ninety days from the commencement of work to complete the following remedial activities:

1. Cannelton will cover the 190 ft. x 10 ft. contaminated area with bentonite. The bentonite shall cover the PCB contaminated area to a depth of at least six inches above the surface of the contaminated area. The covering shall extend five feet past the inby and outby areas of contamination.

2. Cannelton will cover the bentonite with a layer of concrete at least six inches thick. ++EP++

Page 6

3. The bentonite and concrete covers will also extend at least one foot above the contaminated portions of the concrete wall within the Bullpush Slope, however high the contamination extends.

4. Cannelton will anchor the coverings at the intersection of the Bullpush Slope and the No. 2 Gas Coal Seam, and at the outby edge of the contaminated area.

5. Immediately after completing the remedial work, Cannelton shall seal the entrance to the Bullpush Slope as required by the federal Mine Safety and Health Act, 30 U.S.C., Section 801 et seq. and the regulations promulgated thereunder.

D. Any authorized representative of the EPA, upon presentation of his credentials, may enter upon the premises described in this Decree at reasonable times for the purpose of monitoring compliance with the terms of this Consent Decree. This right of entry is in addition to any right of entry and access under federal law.

E. Any such representative may inspect the remedial work and request the correction of deficiencies and/or the performance of additional work at any time up to and including two working days following the date when the project is completed to Cannelton's satisfaction. Cannelton shall ensure that EPA receives at least one week's notice of the anticipated completion date for the project, by delivery of such notice via Express Mail or an equivalent private service, to the Chief, Toxics and Pesticides Branch, Hazardous Waste Management Division, Region III, EPA, 841 Chestnut Street, Philadelphia, Pennsylvania 19107. ++EP++

Page 7

F. Within 30 days of the completion of the remedial work, Cannelton shall submit a written report to EPA, along with a sworn affidavit by a responsible corporate official. The report and affidavit must describe the remedial work, including the number of employees involved, the name(s) of any and all contractors employed, the method(s) by which the contaminated area was covered, and the method(s) used to determine the thickness of the coverings to ensure compliance with this Decree.

G. Nothing in this Consent Decree shall be construed to limit the ability of the United States to pursue its rights and remedies under any provisions of any other Federal, State, or Local law or regulation, or any Order of the Court. Nor shall this Consent Decree operate to release, waive, limit or impair in any way the claims, rights, remedies or defenses of the United States, or any State or Locality, against any person or entity not a party hereto.

III Provisions Regarding Reopening Mine No. 105

A. Cannelton shall never use the Bullpush Slope or any location within a 100-yard radius of the point where the Bullpush Slope intersects the No. 2 Gas coal seam for coal mining operations, except that Cannelton may use the Bullpush Slope only in an emergency situation. Such emergency usage shall be reported to EPA, in writing, within twenty-four hours of each usage. Any reports of such usage shall detail the nature of the usage, when it occurred or may have occurred, why it occurred, how many persons were in the Bullpush Slope, the duration of their stay, and if any exposures to PCBs occurred. ++EP++

Page 8

B. In the event that Cannelton desires to reopen Mine No. 105 for coal mining and/or to have personnel work within a 1,000-yard radius of the intersection of the Bullpush Slope and the No. 2 Gas coal seam, it shall notify EPA, in writing, of Cannelton's intention within 120 days prior to commencement of any such work. Prior to commencing work, Cannelton shall conduct a PCB sampling program according to EPA's specifications. Cannelton must receive written approval of the sampling program from EPA. EPA may approve or modify the sampling program at its option. The plan as modified shall be the approved plan. The EPA approved plan shall be incorporated into this decree and become a part hereof. Cannelton must obtain the laboratory analyses of the samples 70 days prior to the commencement of such work. The results must be provided to EPA at least 60 days prior to commencement of the work. Cannelton shall not commence any work within the 1,000-yard radius of the Bullpush Slope without EPA's written approval.

C. EPA's written approval of any work performed by Cannelton or any other party shall not in any way be construed to make the United States or EPA responsible for any activities undertaken by Cannelton, and Cannelton specifically agrees to indemnify and hold the United States and EPA, their agents, and employees harmless from any acts or claims arising from or relating to acts or omissions of Cannelton in regard to work performed.

D. The United States reserves the right to seek further relief from this Court regarding PCB contamination in the Bullpush Slope, depending upon available information, if Cannelton decides to begin work within the 1,000-yard radius of the Bullpush Slope. ++EP++

Page 9 IV Force Majeure

A. If any event occurs which causes or may cause delays in the performance of tasks required under Parts II and III of this Decree, Cannelton shall notify EPA in the form of a written affidavit from a responsible official within seven days of the date it learned of the event, describing in detail the anticipated length of the delay, the precise cause or causes of the delay, the measures taken and to be taken by Cannelton to prevent or minimize the delay, and the timetable by which those measures will be implemented. Cannelton shall adopt all reasonable measures to avoid or minimize any such delay. Cannelton shall be presumed to have knowledge of any event of which it should reasonably have known.

B. If the parties agree that the delay or anticipated delay in compliance with the terms of this Decree has been or will be caused by circumstances entirely beyond the control of Cannelton, the time for performance hereunder may be extended for a period no longer than the delay resulting from such circumstances. In such event, the parties shall stipulate to such extension of time and so inform the Court. In the event the parties cannot agree, then any party may submit the matter to this Court for resolution.

C. The burden of proving that any delay is caused by circumstances beyond the control of Cannelton shall rest with Cannelton. Financial, economic, or business conditions, or changes in same, or increased costs or expense associated with ++EP++ the implementation of actions called for by this Decree shall not be a basis for changes in this Decree or extensions of time under this Section.

Page 10

Delay in achievement of one interim step shall not justify or excuse delay in achievement of subsequent steps.

D. Failure by Cannelton to comply with the notice requirements of this Section shall render Cannelton liable for any sanction which would have otherwise been excused had notice been given.

V Retention of Rights -- Satisfaction of Claims

A. Should Cannelton fail to obtain MSHA's approval of its work plan or fail to complete the remedial work described in Section II (c) of this Decree, the United States will have the right to seek any relief that the United States may be entitled to receive by further prosecution of this action.

B. This Consent Decree shall constitute a full satisfaction of the parties' respective injunctive and declaratory claims alleged in these three consolidated cases. Cannelton's compliance with this Consent Decree does not relieve it of liability for violations of any provisions of any other law, or of liability in other proceedings under the Act.

VI Stipulated Penalties

A. Cannelton shall pay, by cashier's or certified check, a stipulated penalty to the United States in the amount of $500 for each day of delay in meeting any deadline imposed under Sections II or III of this Decree and for each day of delay in ++EP++

meeting any reporting requirement set forth in Section IV (A) of this Decree, except to the extent that any delay is excused by operation of Section IV (B) of this Decree.

Page 11

The check for any such penalty payment shall be made payable to the Treasurer of the United States and delivered to the United States Attorney's Office for the Southern District of West Virginia. Proof of payment shall be provided to the Office of Regional Counsel, Region III, 841 Chestnut Street, Philadelphia, Pennsylvania 19107 within 10 days of making payment. Payments shall be made within 10 days of a written demand for such payment by the Office of Regional Counsel, Region III, EPA.

B. Payment of stipulated penalties shall not relieve Cannelton of the obligations and requirements of this Consent Decree or limit the right of the United States to enforcement of this Consent Decree, including enforcement by injunctive or mandatory relief or any other means the Court finds just and proper. With respect to any obligation or requirement of this Decree for which relief is not provided in Section V or Section VI-A of this Decree, the United States may seek any fine as well as any other remedy to enforce said obligation or requirement and the Court may impose any contempt fine, injunctive, mandatory or other relief the Court finds just and proper.

VII Notification

Whenever, under the terms of this Decree, Cannelton is required to give notice to EPA, unless otherwise specified such notice shall be directed to the Chief, Hazardous Waste Enforcement ++EP++

Branch, Region III, EPA, 841 Chestnut Building, Philadelphia, Pennsylvania 19107.

Page 12 VIII Compliance with Statutes and Regulations

This consent decree in no way affects or relieves Cannelton of responsibility to comply with the Act, or any other State, Federal or local law or regulation.

IX Public Comment

The parties agree and acknowledge that final approval and entry of this proposed Decree is subject to the requirements of 28 C.F.R. Section 50.7. That regulation provides that notice of the proposed Consent Decree be given to the public and that the public shall have at least 30 days to make any comments.

X Public Inspection of Documents

All information and documents submitted by Cannelton to EPA pursuant to this decree shall be subject to public inspection unless identified and deemed confidential by Cannelton in conformance with 40 C.F.R. Part 2. Cannelton is entitled to assert a claim of business confidentiality covering part of the submitted information in the manner described in 40 C.F.R. Section 2.203(a). Information subject to a claim of business confidentiality will be made available to the public only in accordance with the procedures set forth in 40 C.F.R. Part 2, Subpart B. Unless a business confidentiality claim is asserted at the time the requested information is submitted, EPA may ++EP++

make this information available to the public without further notice to Cannelton.

Page 13 XI Modifications to Decree

Any modification of this Consent Decree must be in writing and approved by the Court. Any such written modification must be executed on EPA's behalf by the Assistant Administrator for Enforcement and Compliance Monitoring or her delegatee or successor.

XII Retention of Jurisdiction

The Court shall retain jurisdiction to modify and enforce the terms and conditions of this Decree and to resolve disputes arising hereunder as may be necessary or appropriate for the construction or execution of this Decree.

XIII Costs

Each party in this action shall bear its own costs.

UNITED STATES OF AMERICA Plaintiff.

/s/ Henry Habicht

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources Division

Department of Justice

Washington, D.C. 20530

CANNELTON INDUSTRIES, INC. Defendant.

By: /s/ ++EP++

Page 14

DAVID A. FABER

United States Attorney

Southern District of West

Virginia

Charleston, West Virginia

By: /s/ Marye L. Wright

MARYE L. WRIGHT

Assistant United States Attorney

Southern District of West

Virginia

Charleston, West Virginia

/s/ David E. Street

DAVID E. STREET, Attorney

Environmental Enforcement Section

Land and Natural Resources

Division

U.S. Department of Justice

Washington, D.C. 20530

(202) 633-2068

/s/ Courtney M. Price

COURTNEY M. PRICE

Assistant Administrator for

Enforcement and Compliance

Monitoring

Environmental Protection Agency

Washington, D.C. 20460

/s/ Bruce M. Diamond

BRUCE M. DIAMOND

Regional Counsel

Environmental Protection Agency

Region III

Philadelphia, Pennsylvania 19107

/s/ Martin Harrell

MARTIN HARRELL

Assistant Regional Counsel

Environmental Protection Agency

Region III

Philadelphia, Pennsylvania 19107

++EP++

Page 15

Judgment entered in accordance with the foregoing Consent Decree this 3rd day of February, 1986.

/s/

UNITED STATES DISTRICT JUDGE

++EP++

CANNELTON INDUSTRIES INC

DOC 01 OF 02

COMPLAINT

03-86-C002

TSCA

OTHER

19860203

19830823

WVD007944366

CANNELTON INDUSTRIES INC

CANNELTON, WV

83-2406,2388,84-2708

03

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON

UNITED STATES OF AMERICA,

V.

CANNELTON INDUSTRIES, INC.

Civil Action No. 83-2406

Plaintiff, United States of America, at the request of the Administrator of the United States Environmental Protection Agency alleges that:

1. This is a civil action instituted pursuant to Section 17(a) of the Toxic Substances Control Action ("TSCA"), 15 U.S.C. Section 2616( a), for injunctive relief to remedy violations of rules promulgated by the Administrator of the Environmental Protection Agency ("EPA") concerning the storage and disposal of polychlorinated biphenyls ("PCB's"), an imminently hazardous chemical substance.

2. This Court has jurisdiction over the subject matter pursuant to 28 U.S.C. Section 1331, 28 U.S.C. Section 1345, and 15 U.S.C. Section 2616.

3. Venue is proper in this District pursuant to 28 U.S.C. Section 1391(b) and 15 U.S.C. Section 2616. The acts and omissions complained of herein occurred in this jurisdiction district.

4. Cannelton Industries, Inc. ("Cannelton") is a West Virginia corporation engaged in bituminous coal mining operations. It is a wholly owned subsidiary of Algoma Steel Corporation, Ltd., a Canadian company located in Ontario, Canada. Cannelton's bituminous coal mining operations are conducted under three ++EP++

organizational divisions, Pocahontas Division in Superior, West Virginia, and Cannelton and Kanawha Divisions in Cannelton, West Virginia.

Page 2

Cannelton's corporate address is 1250 One Valley Square, Charleston, West Virginia.

5. PCB's are toxic and persistent chemical substances which have been used as insulating fluids in heavy-duty electrical equipment such as transformers. PCB's are hazardous to health at extremely low levels. PCB's have caused birth defects, skin lesions, tumors, and carcinomas in laboratory animals. PCB's are a suspected cause of human cancer and cause adverse skin and liver effects in human beings. PCB's decompose very slowly over a long period of time and are bioaccumulative.

6. PCB's are regulated as toxic substances under Section 6(e) of TSCA, 15 U.S.C. Section 2605(e). Section 6(e) of TSCA, 15 U.S.C. Section 2605(e), authorizes the promulgation of rules and regulations governing the manufacture, distribution, storage, and disposal of PCB's.

7. Pursuant to Section 6(e) of TSCA, 15 U.S.C. Section 2605(e), EPA has promulgated rules governing the storage, management, and disposal of PCB's. 40 C.F.R. Section 761. These rules require, inter alia, that liquid PCB's with a concentration greater than 50 parts per million be disposed of in an EPA-approved incinerator. 40 C.F.R Section 761.60(a)(1). All non-liquid PCB's in the form of contaminated soil, rags, or other debris must be disposed of either in an EPA-approved incinerator or an EPA-approved chemical waste landfill. 40 C.F.R. Section 761.60(a)(4). ++EP++

Page 3

8. On or about March 25, 1982, while in the process of recovering equipment from Mine No. 105 of the Kanawha Division, Cannelton caused the rupture of an electrical transformer which contained approximately 447 gallons of fluid made up of approximately 46.7% or 467,000 parts per million of PCB's. Most of the fluid flowed out into the mine where it remains to date. Mine No. 105 is not an EPA-approved chemical waste landfill.

9. Section 15 of TSCA, 15 U.S.C. Section 2614, makes it unlawful for any person to fail or refuse to comply with any requirement of or any rule promulgated pursuant to Section 6 of TSCA, 15 U.S.C. Section 2605.

10. Section 17(a) of TSCA, 15 U.S.C. Section 2616(a), authorizes civil actions to:

(A) restrain any violation of Section 15;

(B) restrain any person from taking any action prohibited by Section 5 or 6 or by a rule or order under Section 5 or 6; or

(C) compel the taking of any action required by or under this act ....

CLAIM FOR RELIEF

11. Defendant Cannelton by its disposal of PCB's in Kanawha Division Mine No. 105 is in violation of 40 C.F.R. Section 761.60 a rule duly promulgated pursuant to Section 6(e) of TSCA, 15 U.S.C. Section 2605.

12. Pursuant to Sections 15 and 17 of TSCA, 15 U.S.C. Sub-Section 2614 and 2616, Defendant Cannelton is subject to injunctive relief restraining it from violating 40 C.F.R. Section 761.60. ++EP++

Page 4

PRAYER FOR RELIEF

WHEREFORE, Plaintiff United States of America prays for:

1. An order enjoining Defendant Cannelton from violating 40 C.F.R. Sub-Section 761.60;

2. Judgment for Plaintiff's costs and disbursements herein; and

3. Such other and further relief to which Plaintiff may be entitled.

Respectfully submitted,

/s/ F. Henry Habicht

F. HENRY HABICHT II

Acting Assistant Attorney General

Land and Natural Resources

Division

U.S. Department of Justice

10th & Pennsylvania Avenue, NW

Washington, D.C. 20530

DAVID FABER

United States Attorney

Southern District of West

Virginia

P.O. Box 3234

Charleston, West Virginia 25332

/s/ Marye L. Wright

MARYE L. WRIGHT

Assistant United States Attorney

/s/ Jeremy Ray Akers

JEREMY RAY AKERS, Attorney

Land and Natural Resources

Division

Environmental Enforcement Section

U.S. Department of Justice

10th & Pennsylvania Avenue, NW

Washington, D.C. 20530 ++EP++

Page 5

/s/ Diane AJl

DIANE AJL

U.S. Environmental Protection

Agency

Region III

Sixth and Walnut Streets

Philadelphia, Pennsylvania 19106

++EP++

ORSELLI ELECTRIC CO

DOC 02 OF 02

ORDER

03-83-C009

TSCA

OTHER

19830815

19830815

PAD980829824

(NO FACILITY NAME)

HONEYBROOK, PA

83-2431

03

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA Plaintiff

v.

ORSELLI ELECTRIC, INC.; JANE FORD Defendants

CIVIL ACTION NO. 83-2431

ORDER

Plaintiff, the United States of America, at the request of the Administrator of the Environmental Protection Agency (EPA) has filed its complaint, alleging that Defendants Orselli Electric, Inc. and Jane Ford, respectively, are operating and owning a garage at R.D. #3, Route 322, Honeybrook, Pennsylvania, that is being used improperly for the storage of polychlorinated biphenyls, in violation of regulations promulgated by the EPA pursuant to section 6 of the Toxic Substances Control Act, 15 U.S.C. Section 2605, which regulations are found at 40 C.F.R. Sub-Section 761.40, 761.65. Defendants have appeared and waive any and all defenses and consent to the entry of this judgment. Therefore, upon motion of the plaintiff and for good cause shown, it is ++EP++

Page 2

ORDERED, that

1. Defendants shall at their joint and several expense, remove and have disposed of in accord with Federal and state law the polychlorinated biphenyls (PCB's) and PCB items from the garage located at R.D. #3, Route 322, Honeybrook, Pennsylvania, on or before the effective date of this order;

2. Defendants, their officers, agents, assigns or businesses in which they have an interest, shall not now or at any time in the future maintain, own or operate a facility for the storage of PCB's or PCB items unless they shall first comply with all rules and regulations duly promulgated by the EPA applicable to the storage of PCB's or PCB items, including but not limited to those found at 40 CFR Part 761.

Dated: 8/12/83

/s/

United States District Judge

Defendants appear and waive answer and any defense they may have to the complaint and hereby agree to the entry of this ORDER.

/s/ Eugene H. Evans

EUGENE H. EVANS, ESQUIRE

Attorney for Defendant Jane Ford

ORSELLI ELECTRIC, INC., Defendant

BY: /s/ Guido Orselli

GUIDO ORSELLI, SECRETARY

Attested: /s/ Guido Orselli

GUIDO ORSELLI

President ++EP++

ORSELLI ELECTRIC CO

DOC 01 OF 02

COMPLAINT

03-83-C009

TSCA

OTHER

19830815

19830520

PAD980829824

(NO FACILITY NAME)

HONEYBROOK, PA

83-2431

03

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff,

v.

ORSELLI ELECTRIC, INC.; JANE FORD, Defendants.

Civil Action No. 83-2431

COMPLAINT

The United States of America, by its undersigned attorneys, by authority of the Attorney General and acting at the request of the Administrator of the United States Environmental Protection Agency ("EPA") alleges that:

PRELIMINARY STATEMENT

1. This is a civil action instituted pursuant to Section 15 of the Toxic Substances Control Act ("the Act"), 15 U.S.C. Section 2614, to enjoin defendants from storing toxic substances in violation of regulations promulgated pursuant to Section 6 of the Act, 15 U.S.C. Section 2605.

2. This court has jurisdiction over this action pursuant to Section 17(a)(1)(A) of the Act, 15 U.S.C. Section 2616(a)(1)(A), and 28 U.S.C. Section 1345. ++EP++

Page 2

3. Venue is proper in this district pursuant to Section 17(a)(2) (A) of the Act, 15 U.S.C. Section 2616(a)(2)(A), and 28 U.S.C. Section 1391(b). The acts and omissions complained of herein occurred in this judicial district.

4. Defendant Jane Ford owns a garage located at R.D. #3, Route 322 in Honeybrook, Pennsylvania, which is in the Eastern District of Pennsylvania. The garage is situated in a residential area. At all times relevant hereto Ford leased the premises to defendant Orselli Electric Inc.

5. Defendant Orselli Electric Inc. ("Orselli") is a corporation organized under the laws of the State of Pennsylvania. Orselli operates an electrical contracting business out of Coatesville, Pennsylvania which specializes in electrical work for industrial concerns and general building contractors. Orselli purchased its electrical contracting business in or around October of 1980. As part of the transaction, Orselli accepted title to approximately twenty-two (22) drums of polychlorinated biphenyls ("PCBs") in liquid and solid form.

6. From 1980 to the present, defendant Orselli has, by lease agreement, stored the drums of PCBs in the garage owned by defendant Ford. ++EP++

Page 3

8. PCBs are regulated as toxic substances under Section 6(e) of the Act, 15 U.S.C. Section 2605(e), which authorizes the promulgation of rules and regulations governing the manufacture, distribution, storage, and disposal of PCBs. The regulations promulgated pursuant to Section 6(e) are codified at 40 C.F.R. Part 761.

9. 40 C.F.R. Section 761.65 provides, in pertinent part, that an owner or operator of a facility used for the storage of PCBs must assure that the facility is equipped with continuous curbing, a minimum of six (6) inches high, which provides the facility with a containment volume equal to at least two times the internal volume of the largest PCB container stored therein or twenty-five percent (25%) of the total internal volume of all PCB containers stored therein. 40 C.F.R. Section 761.40 requires all PCB storage areas to be marked with a sign warning of the presense of PCBs therein.

10. On or about July 17, 1982, the United States Environmental Protection Agency ("EPA") inspected the garage owned by defendant Ford and leased by defendant Orselli and determined that the garage lacked continuous curbing and failed to provide sufficient containment volume for the amount of PCB stored therein as required by 40 C.F.R. Section 761.65. EPA further determined ++EP++

that a PCB warning was not posted on the garage as required by 40 C. F.R. Section 761.40.

Page 4 CLAIM FOR RELIEF

11. Section 15 of the Act, 15 U.S.C. Section 2614, provides that it is unlawful for any person to fail or refuse to comply with any rule promulgated under Section 6 of the Act, 15 U.S.C. Section 2614.

12. Defendant Jane Ford is an owner of a facility used for the storage of PCBs.

13. Defendant Orselli is an operator of a facility used for the storage of PCBs.

14. Defendants, by storing PCBs without proper warnings, adequate curbing, or sufficient containment volume, are operating in violation of 40 C.F.R. Sub-Section 761.40 and 761.65, rules duly promulgated pursuant to Section 6(e) of the Act, 15 U.S.C. Section 2605(e).

15. Defendants' conduct is unlawful under Section 15 of the Act, 15 U.S.C. Section 2614. Said unlawful conduct will continue unless restrained by order of this court.

PRAYER FOR RELIEF

WHEREFORE, plaintiff, United States of America, prays for: ++EP++

Page 5

1. An order enjoining defendants from operating their PCB storage facility in violation of 40 C.F.R. Part 761;

2. Judgment for plaintiff's costs and disbursements herein; and

3. Such other and further relief to which plaintiff may be entitled.

Respectfully submitted,

/s/ Carol E Dinkins

CAROL E. DINKINS

Assistant Attorney General

Land and Natural Resources

Division

/s/ Edward S. G. Dennis, Jr

EDWARD S. G. DENNIS, JR

United States Attorney

Eastern District of Pennsylvania

/s/ Edward T. Ellis

EDWARD T. ELLIS

Assistant United States Attorney

Eastern District of Pennsylvania

/s/ Scott C. Fulton

SCOTT C. FULTON

Attorney, Environmental

Enforcement Section

Land and Natural Resources

Division

U.S. Department of Justice

Washington, D.C. 20530

OF COUNSEL:

MARGARET M. CARDAMONE

Attorney, Office of Regional

Counsel

U.S. Environmental Protection

Agency, Region III

6th and Walnut Streets

Philadelphia, PA 19106 ++EP++

INTERSTATE TRANSFORMER, INC

DOC 06 OF 06

STIPULATION AND ORDER

03-80-C010

TSCA

OTHER

19801024

19850628

PAD092261809

(NO FACILITY NAME)

ELLWOOD CITY, PA

79-734C

03

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff,

v.

INTERSTATE TRANSFORMER, INC., AND H.G. SNYDER, Defendants.

Civil Action No. 79-734-C

STIPULATION AND ORDER

WHEREAS, this Court entered a Consent Decree regarding the above captioned matter on October 24, 1980;

WHEREAS, H. G. Snyder executed the Consent Decree on behalf of himself and as president of Interstate Transformer, Inc.;

WHEREAS, plaintiff United States of America filed on September 24, 1984 a Motion for Issuance of Order to Show Cause Why Defendants . . . Should Not be Held in Contempt and to Adjudge Them in Civil Contempt;

WHEREAS, paragraph 4 of the Consent Decree reads

On and after the date of entry of this Decree, defendants shall comply with regulations promulgated by the Administrator of the Environmental Protection Agency regarding polychlorinated biphenyls, 40 C.F.R. Part 761 as amended. 44 Fed. Reg. 31542 (May 31, 1979). This includes but is not limited to requirements on disposal, storage, marking, records and monitoring; and,

WHEREAS, defendants have violated 40 C.F.R. Part 761 as follows:

a. They have stored approximately 1,000 gallons of ++EP++

PCBs outside of the PCB containment areas at the subject facility, in violation of 40 C.F.R. Section 761.65(b);

Page 2

b. They are in violation of the requirements, contained in 40 C.F. R. Section 761.180(a) and (b), that they keep certain records pertaining to PCBs at the site and available for inspection; and,

c. They are in violation of the requirements, contained in 40 C.F. R. Section 761.65(a): (1) that they dispose of PCB articles and PCB containers in storage for disposal before January 1, 1983, by January 1, 1984; and, (2) that they dispose of PCB articles and PCB containers placed in storage for disposal after January 1, 1983 no later than one year after the date they were placed in storage for disposal;

NOW, THEREFORE, this Court finds defendants in civil contempt of its Consent Decree of October 24, 1980. Defendants shall purge themselves of their contempt as follows:

a. Regarding the violation of 40 C.F.R. Section 761.65(b), defendants have placed all PCBs into containment areas. Defendants will ensure that, on or before January 15, 1985, all containment areas at the site will comply fully with 40 C.F.R. Section 761.65(b).

b. Regarding the violations of 40 C.F.R. Section 761.180(a) and (b), defendants will provide to plaintiff's undersigned trial attorney on or before January 15, 1985 all documents in their possession regarding the PCBs at the site. ++EP++

Page 3

c. Regarding the violation of 40 C.F.R. Section 761.65(a), defendants agree to the following:

(1) To conduct an inspection of the PCB containers and PCB articles in storage at the site for leaks and for structural integrity at least once every 30 days, in accordance with 40 C.F.R. Section 761.65(c)(5).

(2) During the same inspection described immediately above, to visually inspect the fence surrounding the property where the subject PCB site is located for tears and holes of sufficient size to permit children to enter the site.

(3) Mr. Snyder is personally responsible for the aforementioned inspections, for maintaining adequate storage for the PCBs, and for inspecting them every 30 days. If Mr. Snyder cannot personally perform the required monthly inspections, he shall designate a representative to conduct the inspections on his behalf and notify the Chief, Hazardous Waste Enforcement Branch, Region III, U.S. EPA, Philadelphia, Pennsylvania 19106 (hereinafter EPA) of that person's identity (name, address, telephone number), and of his qualifications to conduct the inspection./1/ The United States Environmental Protection Agency retains the right to object to the designee and to require Mr. Snyder to designate another person to perform the inspections.

((/1/ Mr. Snyder has identified a designee to EPA. Within 10 days of his execution of this Stipulation and Order Mr. Snyder shall provide EPA with an affidavit setting forth that person's identity, as described above.)) ++EP++

Page 4

(4) Mr. Snyder or his Assignee shall submit a written report to EPA of his findings for each inspection within one week of the inspection. The format for such reports will be specified by EPA in writing. In the event Mr. Snyder or (ILLEGIBLE) designee are denied access to the subject facility, EPA shall be advised of such denial of entry within 24 hours.

(5) In the event there is a leak from one or more of the subject PCB articles or containers, or in the event one or more of the containers appears about to leak, the person performing the inspection shall notify EPA and Mr. Snyder by telephone immediately, but not later than 24 hours after his or her discovery of the leak. Mr. Snyder shall determine whether or not the leak has been reported telephonically to EPA, and shall bear the responsibility if any such leak is not reported. Mr. Snyder shall be responsible for cleaning up any such leaks, in accordance with 40 C.F.R. Section 761.65(c)(5).

(6) In the event there is a leak, Mr. Snyder shall mail a written report to EPA within one week of the discovery of the leak.

(7) Mr. Snyder shall notify EPA quarterly as to his mailing address and telephone number. Such quarterly reports will be provided to EPA on or before January 1, April 1, July 1, and October 1 of each year, and shall include an affidavit, with supporting information, from Mr. Snyder as to whether or not he is financially capable of disposing of the subject PCB containers and PCB articles. ++EP++

Page 5

(8) Mr. Snyder shall submit to EPA (ILLEGIBLE) copies of his annual tax returns and the annual tax (ILLEGIBLE) if any, of Interstate Transformer, Inc., when he submits each quarterly report for July 1, as referred to in paragraph (ILLEGIBLE) above. Such copies of tax returns shall be accompanied by an affidavit stating that the documents are true copies.

d. All of the requirements set forth in subparagraph "c" above, shall terminate when the PCBs are disposed of, as required by 40 C.F.R. Section 761.65(a). Until then, defendants agree to comply with all other requirements of 40 C.F.R. Part 761, including but not limited to the requirement that PCB spills or leaks be cleaned up (40 C.F.R. Section 761.65 c 5 ). Defendants agree that if they believe that they are not in financial condition to remedy any violation of any such regulation, they will advise EPA of such financial incapacity within one week of their discovery of the violation. However, defendants recognize that any such financial incapacity does not excuse them from complying with the regulations set forth in 40 C.F.R. Part 761.

Should EPA determine, in its sole discretion, based (ILLEGIBLE) on the tax returns of the defendants or any other reliable information, that Interstate Transformer, Inc. and/or Harold Snyder have become financially able to dispose of the (ILLEGIBLE) PCB containers and PCB articles, then the United States (ILLEGIBLE) without prior judicial approval, notify Mr. Snyder or (ILLEGIBLE) Transformer, Inc., of its determination and require (ILLEGIBLE) disposal of the PCB containers and PCB articles in (ILLEGIBLE) ++EP++

with 40 C.F.R. Section 761.65(a), and all other disposal requirements (ILLEGIBLE) 761. If defendants fail to comply with the EPA directive or if defendants do not dispose of the PCB containers and PCB articles as promptly as circumstances require, in EPA's sole determination, then EPA may arrange for disposal in accordance with 40 C.F.R. Part 761 and seek reimbursement from Mr. Snyder or Interstate Transformer.

Page 6

This, the 28th day of June, 1985.

/s/

UNITED STATES DISTRICT JUDGE

Approved and stipulated to:

UNITED STATES OF AMERICA,

plaintiff,

By: /s/

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources

Division

Department of Justice

10th & Pennsylvania Ave., N.W.

Washington, D.C. 20530

/s/

J. ALAN JOHNSON

United States Attorney

Pittsburgh, Pennsylvania

/s/ Amy R. Hay

AMY R. HAY

Assistant United States Attorney

/s/David E. Street

DAVID E. STREET, Trial Attorney

Environmental Enforcement Section

Land and Natural Resources

Division

U.S. Department of Justice

10th & Pennsylvania Ave., N.W.

Washington, D.C. 20530 ++EP++

Page 7

COURTNEY M. PRICE

Assistant Administrator for

Enforcement and Compliance

Monitoring

Environmental Protection Agency

Washington, D.C. 20460

/s/

MICHAEL F. VACCARO

Acting Regional Counsel

U.S. Environmental Protection

Agency (EPA)

Region III, Curtis Building

6th & Walnut Street

Philadelphia, Pennsylvania 19106

/s/

MARTIN HARRELL

Assistant Regional Counsel

EPA, Region III

INTERSTATE TRANSFORMER, INC. AND

H. G. SNYDER,

defendants, by:

/s/

H. G. SNYDER

1/19/85 ++EP++

INTERSTATE TRANSFORMER, INC

DOC 05 OF 06

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR ISSUANCE OF ORDER TO SHOW CAUSE

03-80-CO10

TSCA

OTHER

19801024

19840924

PAD092261809

(NO FACILITY NAME)

ELLWOOD CITY, PA

79-734C

03

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff,

Civil Action No. 79-734-C

v.

INTERSTATE TRANSFORMER, INC., AND H.G. SNYDER, Defendants.

PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR ISSUANCE OF ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN CONTEMPT AND TO ADJUDGE THEM IN CIVIL CONTEMPT STATEMENT

Plaintiff commenced this action in 1979 to enforce federal regulations, promulgated under Section 2605(e) of the Toxic Substances Control Act (TSCA), 15 U.S.C. Section 2605(e), governing the disposal and storage of polychlorinated biphenyls (PCBs), e.g., 40 C.F.R. Part 761. The parties entered into a Stipulation on the day of a hearing scheduled in response to the Government's Motion for a Preliminary Injunction. The Stipulation provided that (1) defendants would not incinerate or dispose of PCBs at the facility, (2) defendants would submit a plan for the proper storage of PCBs, including a construction schedule, and (3) defendants would submit an inventory of items containing PCBs and a description of locations where there were spills. The Court approved the Stipulation.

The United States Environmental Protection Agency (U.S. EPA) inspected the facility in July, 1979 and March, ++EP++ 1980 and concluded that the facility was then in compliance.

Page 2

To ensure future compliance, and to resolve the original law suit, the parties entered into a Consent Decree, which was entered by the Court on October 24, 1980. A true copy of the Decree is enclosed herewith and made a part hereof as Exhibit

1. In pertinent part the Decree required the defendants:

(1)to comply with all regulations promulgated by U.S. EPA regarding PCBs, including but not limited to requirements on disposal, storage, marking, records and monitoring; and, (2) to notify U.S. EPA, orally and in writing, of any violations the defendants commit.

An EPA inspector, Scott C. McPhilliamy, visited defendants' facility on March 20, 1984, in company with defendant Harold G. Snyder, and State and local officials. Mr. McPhilliamy discovered three categories of violations of 40 C.F.R. Part 761, the PCB rule, all of which are described in greater detail in Plaintiff's foregoing Motion for Issuance of Order to Show Cause and Mr. McPhilliamy's supporting Affidavit. Moreover, Mr. McPhilliamy discovered that defendants had not notified U.S. EPA of the violations, and thus had failed to comply with paragraph 5 of the Consent Decree. Mr. McPhilliamy returned to the site on August 2, 1984, and found that none of the violations had been remedied.

ARGUMENT I. THE COURT SHOULD ISSUE A RULE TO SHOW CAUSE

DIRECTING DEFENDANTS TO SHOW WHY THEY SHOULD

NOT BE HELD IN CIVIL CONTEMPT OF THIS COURT'S

CONSENT DECREE ++EP++

Page 3

Although a Consent Decree is negotiated between the parties, its entry is a judicial act. Interdynamics, Inc. v. Firma Wolf, 653 F.2d 93, 96 (3d Cir. 1981) citing United States v. Swift and Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932) ; Delaware Valley Citizens' Council v. Commonwealth of Pennsylvania, 533 F. Supp. 869, 880 (E.D. Pa. 1982), aff'd, 678 F.2d 470 (3d Cir. 1982), cert. den., 459 U.S. 969. Such a decree possesses the same force with regard to res judicata and collateral estoppel as a judgement entered after a trial on the merits. Interdynamics, Inc. v. Firma Wolf, supra, 653 F.2d at 96-97.

This Court has inherent civil contempt power to compel defendants' compliance with the decree. E.g., United States v. United Mine Workers, 330 U.S. 258 (1947); Interdynamics, Inc. v. Firma Wolf, supra, 653 F. 2d at 97; 5 Moore's Fed. Prac. Section 38.33(i) at 38-263. " T he power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed upon them by law." Gompers v. Buck's Stove and Range Co., 221 U.S. 418, 450 (1911).

A defendant commits contempt when he violates a definite order of the court requiring him to perform a particular act or acts. SEC. v. First Financial Group of Texas, 659 F.2d 660, 669 (5th Cir. 1981); Jim Walker Resources, Inc. v. International Union UMW, 609 F.2d 165, 168 (5th ++EP++ Cir. 1980).

Page 4

Here, as we have shown, defendants violated the requirements of the Consent Decree that they comply with EPA's PCB rule and that they notify U.S. EPA of any such violations. Accordingly, after notice and an opportunity for a hearing, defendants should be found in civil contempt of court.

Contempt is civil in a nature when the purpose of the sanctions imposed by the court for violation of its order is remedial, rather than merely to punish the violator. Shillitanti v. United States, 384 U.S. 364, 370 (1966); United States v. United Mine Workers; supra; Latrobe Steel Co. v. United Steelworkers of America, AFL-CIO, 545 F.2d 1336, 1344 (3d Cir. 1976). Thus, civil contempt is intended to coerce compliance with the court's order and to compensate the plaintiff for losses or damages caused by non-compliance. Shillitani, supra; Latrobe Steel Co. v. United Steelworkers, supra. Moreover, civil contempt is a strict liability proceeding; the moving party need not show either scienter or wilfulness./1/

((/1/ E.g. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949); AMF, Inc. v. Jewett, 711 F.2d 1096 (1st Cir. 1983); Florida Steel Corp. v. NLRB, 648 F.2d 233, 236 (5th Cir. 1981); Commodity Futures Trading Commission v. Premix, Inc., 655 F.2d 779, 782-4 (7th Cir. 1981). Delaware Valley Citizens' Council v. Commonwealth of Pennsylvania, supra, 533 F. Supp. 869, 880, aff'd 678 F.2d 470.))

Once the court adjudges defendant in civil contempt, plaintiff must be afforded appropriate relief. 7 Moore's supra, ++EP++ Paragraph38.33, at 38-264, n.3.

Page 5

("The Court has no discretion to withhold the appropriate remedial order."). Application of the civil contempt power is "conditioned or contingent in nature, terminable if the contemnor purges himself of contempt." DeParco v. United States District Court, 235 F. 2d 692, 699 (8th Cir. 1956). See also McDonald's Corp. v. Victory Investments, 727 F.2d 82, 96 (3d Cir. 1984). A wide variety of relief can be afforded. In fashioning a remedy, "the district court, sitting in equity, is vested with wide discretion." Delaware Valley Citizens' Council v. Commonwealth of Pennsylvania, supra, 553 F. Supp. at 882. First, the Court may incarcerate the defendants and/or assess civil fines against them until the contemnors purge themselves of contempt. Uphaus v. Wyman, 360 U.S. 72, 81-82 (1959); Eastern Maico Distributors v. Maico-Fahrzeugfabrick, 658 F. 2d 944, 949 (3d Cir. 1982); In Re: Dinnan, 620 F.2d 1146, 1149-1150 (5th Cir. 1980). Second, damages may be awarded to compensate plaintiffs for the actual harm suffered due to contumacious conduct. United Mine Workers, supra, 330 U.S. at 303-04; McDonald's Corp. v. Victory Investments, 727 F.2d 82, 87 (3d Cir. 1984). Third, litigation costs may be awarded, including attorneys' fees and investigative expenses incurred by plaintiff in prosecuting the contempt proceedings. Hutto v. Finley, 437 U.S. 678, 689-691 (1976); McDonald's Corp. v. Victory Investments, supra, ++EP++ 727 F. 2d at 5-8, 10, 12; Northside Realty Associates, Inc. v. United States, 605 F.2d 1348, 1356 and n. 23 (5th Cir. 1979).

Page 6

Upon finding that defendants are in civil contempt, this Court should apply coercive sanctions from the range of choices outlined above, sufficient to ensure rapid compliance with the Consent Decree. The Court should also award plaintiff its actual damages, costs and attorneys fees. The government will, of course, be prepared to file appropriate documentation to support an award of damages, costs, and attorney fees.

CONCLUSION

For the foregoing reasons, the Court should issue: (1) an Order directing defendants to show cause why they should not be held in civil contempt; (2) after notice and opportunity for a hearing on the Order, an Order adjudging defendants in civil contempt, (3) an Order imposing upon defendants sanctions, including but not limited to, civil fines and incarceration to compel them to comply with the Consent Decree, and (4) an Order awarding to the United States its damages, costs and attorneys fees.

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources Division

Department of Justice

Washington, D.C. 20530

J. ALAN JOHNSON

United States Attorney

Pittsburgh, Pennsylvania 15219 ++EP++

Page 7

By: /s/ Amy Reynolds Hay

AMY REYNOLDS HAY

Assistant United States Attorney

Pittsburgh, Pennsylvania 15219

/s/ David E.Street

DAVID E. STREET, Trial Attorney

Environmental Enforcement Section

Land and Natural Resources

Division

U.S. Department of Justice

Washington, D.C. 20530

Telephone: (202) 633-2068 ++EP++

INTERSTATE TRANSFORMER, INC

DOC 04 of 06

MOTION FOR ISSUANCE OF ORDER TO SHOW CAUSE

03-80-C010

TSCA

OTHER

19801024

19840924

PAD092261809

(NO FACILITY NAME)

ELLWOOD CITY, PA

79-734C

03

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff,

v.

INTERSTATE TRANSFORMER, INC., AND H.G. SNYDER, Defendants.

Civil Action No. 79-734-C

PLAINTIFF UNITED STATES OF AMERICA'S MOTION FOR ISSUANCE OF ORDER TO SHOW CAUSE WHY DEFENDANTS INTERSTATE TRANSFORMER, INC. AND H.G. SNYDER SHOULD NOT BE HELD IN CIVIL CONTEMPT AND TO ADJUDGE THEM IN CIVIL CONTEMPT

By its undersigned counsel, plaintiff, United States of America, hereby moves this Court, pursuant to Federal Rule of Civil Procedure 70, for: (1) issuance of an Order directing defendants Interstate Transformer, Inc. and H.G. Synder to show cause why they should not be held in civil contempt for failing to comply with a Consent Decree entered by the Court on October 24, 1980; and, (2) after notice and opportunity for a hearing for defendants, issuance of an Order adjudging them in civil contempt for such failure and providing plaintiff with relief to secure defendants' compliance with the Decree. In support of its motions, plaintiff relies upon the attached exhibits and accompanying memorandum of law, and in summary, states as follows:

1. On October 24, 1980, this Court entered a Consent Decree between the above captioned parties, which requires the defendants to comply with certain requirements of the Toxic Substances Control Act, 15 U.S. C. Section 2601 et. seq. and regulations adopted thereunder by the U.S. Environmental Protection Agency, 40 C.F.R. Part 761. ++EP++

Page 2

2. Paragraph four (4) of the Consent Decree provided that:

On and after the date of entry of the Decree, defendants shall comply with regulations promulgated by the Administrator of the Environmental Protection Agency regarding polychlorinated biphenyls, 40 C.F.R. Part 761 as amended. 44 Fed. Reg. 31542 (May 31, 1979). This includes but is not limited to requirements on disposal, storage, marking, records and monitoring.

3. Paragraph five (5) of the Consent Decree then provides:

If for any reason defendant(s) do not comply with the requirements of this Decree, defendant(s) shall provide the Division Director, Enforcement Division, Region III, EPA, with the following information, in writing, within five (5) days of becoming aware of the failure to comply:

a. A description of the non-complying conduct;

b. The period of non-compliance, including exact dates, and the date when the defendant(s) anticipates it will resume compliance with the specific requirement violated; and

c. Steps being taken to eliminate the non-complying conduct.

In addition, in the event of failure to comply with requirements regarding disposal, defendant(s) shall verbally provide the information specified in (a)-(c) above to the Division Director within 24 hours after defendant(s) become aware of the non-complying event and shall provide written confirmation including that information within five days after learning of the non-complying event.

4. In paragraph seven (7) of the Consent Decree, defendants were advised as to where any such notifications must be sent, as follows:

All notices and other documents that must be submitted in satisfaction of a requirement of this Decree shall be submitted to: ++EP++

Page 3

U.S. Environmental Protection Agency

Region III

Curtis Building, Second Floor

6th & Walnut Streets

Philadelphia, Pennsylvania 19106

Attention: Director, Enforcement Division

5. Scott C. McPhilliamy, an environmental scientist employed by the U.S. Environmental Protection Agency (U.S. EPA) at its Region III, Wheeling, West Virginia office, inspected defendants' facility in Ellwood City, Pennsylvania on March 20, 1984 in company with Harold G. Snyder, the President of Interstate Transformer, Inc. (hereinafter, Interstate), and State and local officials. During this inspection, Mr. McPhilliamy discovered that the defendants were failing to comply with 40 C.F.R. Part 761 in numerous respects. These included:

a. The defendants' failure, in violation of 40 C.F.R.Section761.65( a), to dispose of approximately 4,500-5,000 gallons of PCB-contaminated liquids, and their containers, which have been in storage at the Ellwood City facility since 1979;

b. The defendants' failure, in violation of 40 C.F.R. Section 761.65(b), to store approximately 1,000 gallons of PCB-contaminated liquids received within a year prior to Mr. McPhilliamy's inspection in containment areas meeting specifications set forth in the regulation; and, ++EP++

Page 4

c. The defendants' failure, in violation of 40 C.F.R. Section 761.180(a) and (b), to maintain records, including but not limited to annual reports showing when PCBs had been removed from service and when PCBs had been placed into storage for disposal.

7. Additionally, Mr. McPhilliamy discovered that defendants had not:

a. Filed written reports with the U.S. EPA of their non-compliance with 40 C.F.R. Part 761, as required by paragraph five (5) of the Consent Decree; and,

b. Orally informed the U.S. EPA of their non-compliance with 40 C. F.R. Part 761, as required by paragraph five (5) of the Consent Decree.

8. Mr. McPhilliamy returned to defendants' Ellwood City site on August 2, 1984 in company with another EPA inspector. The violative conditions described in paragraphs 5-7 above remained unabated.

9. The findings of Mr. McPhilliamy, as reflected in paragraphs 5-8 above, are contained in his Affidavit, which is enclosed herewith and made a part hereof as Exhibit 1.

10. Interstate and Harold G. Snyder have, therefore, failed to comply with the requirements of paragraphs 4 and 5 of the Consent Decree in the above captioned case.

11. Plaintiff has incurred costs and attorneys fees in investigating the extent of defendants' non-compliance with the Consent Decree as described above and will incur further such expenses until this defendant fully complies with the Decree. ++EP++

Page 5

WHEREFORE, plaintiff requests that this Court issue orders:

A. Setting a hearing before the Court at which defendants must show cause why they should not be in civil contempt of the Consent Decree for thier failure to comply with paragraphs 4, 5 and 7 thereof;

B. Following notice and opportunity for such a hearing, adjudging defendants in civil contempt;

C. Thereafter and until defendants have fully complied with the Consent Decree, imposing appropriate civil contempt sanctions, including but not limited to civil fines and incarceration, upon defendants;

D. Awarding to plaintiff such other relief as may be just and proper. A proposed form of order to show cause is attached hereto for the Court's convenience .

Respectfully submitted,

/s/ F. Henry Habicht

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources

Division

U.S. Department of Justice

Washington, D.C. 20530

J. ALAN JOHNSON

United States Attorney

Pittsburgh, Pennsylvania 15219

By: /s/ Amy Reynolds Hay

AMY REYNOLDS HAY

Assistant United States Attorney

Pittsburgh, Pennsylvania 15219

++EP++

Page 6

C/s/ David E. Street

David E. Street, Trial Attorney

Environmental Enforcement Section

Land and Natural Resources

Division

U.S. Department of Justice

Washington, D.C. 20530

(202) 633-2068 ++EP++

Page EXH-I-1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATED OF AMERICA Plaintiff

v.

INTERSTATE TRANSFORMER, INC. Defendants

Civil Action:79-734-C

AFFIDAVIT

I, Scott C. McPhilliamy, being first duly sworn, state that:

1. I am an Environmental Scientist employed by the EPA Region III Office in Wheeling, West Virginia.

2. I have been employed by EPA and its predecessor agencies since 1966. My duties include both field and office responsibilities for EPA regulatory programs including the National Pollutant Discharge Elimination System (NPDES), the Resource Conservation and Recovery Act (RCRA), and the Toxic Substances Control Act (TSCA).

3. I am familiar with the Interstate Transformer, Inc., site in Ellwood City, Pennsylvania having first visited the site on April 25, 1979.

4. As a result of information and sample analysis, EPA determined that Interstate Transformer, Inc., was not handling or storing PCB's in a manner required by 15 U.S.C. Section 2601 et seq, and the PCB regulations promulgated in 40 CFR, Part 761. Consequently, EPA initiated civil procedures which were responsible for actions undertaken by Interstate Transformer, Inc., which brought the facility into compliance with the TSCA regulations for the storage of PCB's.

As stipulated in 40 CFR Section 761.65(a), PCB's in storage for disposal before January 1, 1983, shall be removed from storage and disposed in a manner according to the regulations before January 1, 1984. Harold G. Snyder did not ++EP++

initiate any communications to notify EPA that the PCB's had remained in storage beyond the January 1, 1984, deadline at the Ellwood City, Pennsylvania facility.

Page EXH-I-2

6. On March 20, 1984, I visited the Interstate Transformer, Inc., facility in Ellwood City, Pennsylvania. At that time I was accompanied by Harold G. Snuder, President of Interstate Transformer, Inc., as well as other State and local representatives. This visit was initiated at the request of Ellwood City officials who expressed concern about the PCB's remaining in storage at Interstate Transformer, Inc.

7. Accompanied by the above referenced individuals, we toured the PCB storage area. At this time it was noted that the items placed into storage in 1979, an estimated 4000-4500 gallons of PCB, remained on site and had not been removed from storage for disposal pursuant to 40 CFRSection761.65(a). It was also noted that additional storage facilities (containment areas) had been constructed since 1979 and that a large number of additional drums and tanks had been placed into these storage areas. It was estimated that the additional items placed into storage since 1979 have increased the present capacity of the storage area by approximately 200 percent.

8. When questioned as to the content and origin of these additional containers, Snyder stated the drums and tanks contained PCB's which he received from Standard Transformer Company on Dana Street in Warren, Ohio.

9. The majority of the additional drums and tanks were located within containment areas constructed by Snyder similar to the one constructed in 1979. However, ten (10) of 55 gallon drums and two (2) 275 gallon tanks were not within the containment areas as required by 40 CFRSection761.65(b).

10. On August 2, 1984, Dave Barto (Wheeling EPA Office) and I returned to Interstate Transformer, Inc., in Ellwood City, Pennsylvania. We were accompanied by Harold G. Snyder. At this time EPA collected twenty (20) samples for PCB analysis from a selection of both the drums and the 275 gallon tanks. Several of these samples ++EP++ were from the drums and tanks outside the containment area.

Page EXH-I-3

In addition, five (5) soil samples for PCB analysis were collected from outside areas adjacent to the building where the PCB's were stored. These samples are presently undergoing analysis in the EPA Wheeling Laboratory.

11. During the March 20, 1984, and August 2, 1984, inspections at the Interstate Transformer, Inc., Snyder was requested to provide records concerning the PCB's in storage for disposal. Such records are required by 40 CFR Section 761.180(a). Additionally, Snyder was requested to provide records pertaining to the 1/30 day inspections of PCB's in storage for disposal in accordance with 40 CFR Section 761.65. However, to date Snyder has not provided any of the above mentioned records pertaining to the PCB storage site.

/s/ Scott C. McPhilliamy

SCOTT C. MCPHILLIAMY

Enviromental Scientist

U.S. ENVIRONMENTAL PROTECTION

AGENCY

Sworn to and subscribed before me this day of 1984, at Ohio County, West Virginia.

Notary Public ++EP++

Page ATT-1-1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff,

v.

INTERSTATE TRANSFORMER, INC., AND H.G. SNYDER, Defendants.

Civil Action No. 79-734-C

PROPOSED ORDER TO SHOW CAUSE

Upon the motion, and the exhibit attached thereto, filed by the United States of America, it is

ORDERED that the defendants, Interstate Transformer, Inc. and Harold G. Synder:

1. File an Answer to the United States' Motion for Issurance of Order to Show Cause . . .and To Adjudge Defendants in Civil Contempt, not later than October , 1984; and,

2. Appear before the undersigned in his courtroom in the United States Post Office and Courthouse in Pittsburgh, Pennsylvania on the

day of , 1984, at , to show cause why the

defendants should not be held in civil contempt for failing to comply with paragraphs four (4) and five (5) of this Court's Consent Decree of October 24, 1980.

DONE AND ORDERED at Pittsburgh, Pennsylvania this day of

, 1984.

UNITED STATES DISTRICT JUDGE

++EP++

INTERSTATE TRANSFORMER, INC

DOC 03 of 06

CONSENT DECREE

03-80-C010

TSCA

OTHER

19801024

19801024

PAD092261809

(NO FACILITY NAME)

ELLWOOD CITY, PA

79-734C

03

UNITED STATES OF AMERICA, Plaintiff,

v.

INTERSTATE TRANSFORMER, INC. and H.G. SNYDER, Defendants.

Cicil Action 79-734-C

Western District PA

CONSENT DECREE

1. On several occasions in 1979, at facilities in Ellwood City, defendants Interstate Transformer, Inc. and H.G. Snyder violated regulations regarding disposal of polychlorinated biphenyls (PCBs), storage of PCBs for disposal, marking of PCBs and monitoring and recordkeeping requirements for PCBs.

2. Plaintiff United States of America, on behalf of the United States Environmental Protection Agency (EPA), filed this action on May 25, 1979.

3. A stipulation providing injunctive relief was entered by the Court on June 4, 1979.

4. Employees of the Environmental Protection Agency inspected defendants' facilities in July 1979 and March 1980.

NOW THEREFORE, upon the consent of the parties, it is hereby ORDERED, ADJUDGED and DECREED as follows:

1. This Court has jurisdiction of the subject matter and of the parties herein.

2. The Complaint states a claim upon which relief can be granted against the defendants.

3. The provisions of this Consent Decree shall apply to and be binding upon the parties to this action, their officers, directors, agents, servants, employees, successors, and assigns. ++EP++

Page 2

4. On and after the date of entry of this Decree, defendants shall comply with regulations promulgated by the Administrator of the Environmental Protection Agency regarding polychlorinated biphenyls, 40 C.F.R. Part 761 as amended. 44 Fed. Reg. 31542 (May 31, 1979). This includes but is not limited to requirements on disposal, storage, marking, records and monitoring.

5. If for any reason defendant(s) do not comply with the requirements of this Decree, defendant(s) shall provide the Division Director, Enforcement Division, Region III, EPA, with the following information, in writing, within five (5) days of becoming aware of the failure to comply:

a) A description of the noncomplying conduct;

b) the period of noncompliance, including exact dates, and the date when the defendant(s) anticipates it will resume compliance with the specific requirement violated; and

c) steps being taken to eliminate the noncomplying conduct.

In addition, in the event of failure to comply with requirements regarding disposal, defendant(s) shall verbally provide the information specified in (a)-(c) above to the Division Director within 24 hours after defendant(s) become aware of the noncomplying event and shall provide written confirmation including that information within five days after learning of the noncomplying event.

6. Nothing contained in this Decree shall be construed to prevent or limit the application of the Toxic Substances Control Act, 15 U.S.C. Section 2601, et seq., or any ++EP++

regulations which have been or which may hereafter be promulated by the EPA to any conduct of the defendant(s).

Page 3

7. All notices and other documents that must be submitted in satisfaction of a requirement of this Decree shall be submitted to:

U.S. Environmental Protection Agency

Region III

Curtis Building, Second Floor

6th & Walnut Streets

Philadelphia, Pennsylvania 19106

Attention: Director, Enforcement Division

This, the 24th day of Oct., 1980.

/S/

UNITED STATES DISTRICT JUDGE

Approved and consented to:

UNITED STATES OF AMERICA,

plaintiff, by:

/S/ Angus Macbeth

ANGUS MACBETH

Acting Assistant Attorney General

Land and Natural Resources

Division

Department of Justice

Washington, D.C. 20530

/S/ Robert J. Cindrich

ROBERT J. CINDRICH

United States Attorney

/S/ William F. Ward

WILLIAM F. WARD

Assistant United States Attorney

/S/ Stanley L. Laskowski

STANLEY L. LASKOWSKI

Acting Director, Enforcement

Division

Environmental Protection Agency

Philadelphia, Pennsylvania 19106

/S/ Joseph J. C. Donovan

JOSEPH J. C. DONOVAN, Attorney,

Region III, EPA

INTERSTATE TRANSFORMER, INC., and

H. G. SNYDER, defendants, by:

/S/ H.G. Snyder

H. G. SNYDER ++EP++

INTERSTATE TRANSFORMER, INC

DOC 02 of 06

STIPULATION

03-80-C010

TSCA

OTHER

19801024

19790604

PAD092261809

(NO FACILITY NAME)

ELLWOOD CITY, PA

79-734C

03

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff

v.

INTERSTATE TRANSFORMER, INC. AND H.G. SNYDER, Defendants

Civil Action No. 79-734

STIPULATION

The United States of America, by its attorneys, Robert J. Cindrich, United States Attorney for the Western District of Pennsylvania, and William F. Ward, Assistant United States Attorney for said district, and the Defendants, by H. G. Snyder as an individual and as president of Interstate Transformer, Inc., do hereby stipulate and agree as follows:

A. That with respect to incineration and disposal of polychlorinated biphenyls ("PCBs"):

1. Defendants will not incinerate or dispose of any PCBs at the industrial complex located at Hillside Avenue and Second Street in Ellwood City, Pennsylvania ("Ellwood City complex") which is currently being operated by the Defendants.

2. Defendants will not remove any drums, transformers, barrels, or other items which contain PCBs, from the Ellwood City complex without written permission from the U.S. Environmental Protection Agency ("EPA").

B. That with respect to the storage of drums, containers, and other items containing or suspected to be containing PCBs which are located at the Ellwood City complex:

1. That within four weeks after the date this Stipulation is approved by the Court Defendants will submit to EPA a written plan for storage ++EP++

of said drums, containers, and items currently present at the Ellwood City complex in a manner required by the Toxic Substances Control Act, 15 U.S.C.Section2601 et seq., and the PCB Regulations promulgated pursuant thereto, 40 C.F.R. Part 761. Said plan shall include but not be limited to a construction schedule, if appropriate.

C. That with respect to markings on drums, containers, and other items containing PCBs at the Ellwood City complex:

1. That within four weeks after the date this Stipulation is approved by the Court, Defendants will label all said drums, containers, and items in accordance with the marking requirements set forth at 40 C.F.R. Part 761.

D. That with respect to the records and monitoring of all PCBs, within four weeks after the date this Stipulation is approved by the Court Defendants will submit to EPA:

1. An inventory of transformers, drums, barrels, containers and other items containing or suspected to be containing PCBs which are located at the Ellwood City complex. The inventory shall specify the item and its location.

2. A written description of locations on the Ellwood City complex site where PCBs were spilled, leaked, or otherwise introduced into the environment. Said description will also include a handdrawn map.

3. Any information requested by EPA concerning operations by either or both Defendants at sites located in Mineral Ridge, Ohio, in Sharon, Pennsylvania, and in Concord, New Hampshire.

E. That, upon receipt of twenty four (24) hours notice, Defendants shall give EPA permission to go onto the Ellwood City complex in order to assure the EPA of Defendants' compliance with ++EP++

"Page 3 is missing." ++EP++ Page 4

defendants shall comply with regulations (ILLEGIBLE) Administrator of the Environmental Protection Agency regarding polychlorinated biphenyls, 40 C.F.R. Part 761 as amended. 44 Fed. Reg. 31542 (May 31, 1979). This includes but is not limited to requirements on disposal, storage, marking, records and monitoring.

5. If for any reason defendant(s) do not comply with the requirements of this Decree, defendant(s) shall provide the Division Director, Enforcement Division, Region III, EPA, with the following information, in writing, within five (5) days of becoming aware of the failure to comply:

a) A description of the noncomplying conduct;

b) the period of noncompliance, including exact dates, and the date when the defendant(s) anticipates it will resume compliance with the specific requirement violated; and (ILLEGIBLE)complying conduct.

In addition, in the event of failure to comply with requirements regarding disposal, defendant(s) shall verbally provide the information specified in (a)-(c) above to the Division Director within 24 hours after defendant(s) become aware of the noncomplying event and shall provide written confirmation including that information within five days after learning of the noncomplying event.

6. Nothing contained in this Decree shall be construed to prevent or limit the application of the Toxic Substances Control Act, 15 U.S.C. Section2601, et seq., or any ++EP++

the Toxic Substances Control Act, the PCB Regulations, any plan submitted by the Defendants, or with any Order of the Court. This paragraph shall not limit or exclude the federal government's right of inspection pursuant to the laws of the United States.

Page 5

F. That Defendants express no objection for the EPA to go onto any site formerly used, owned or leased by one or both Defendants in servicing items containing or suspected to be containing PCBs.

G. That although Plaintiff will not seek additional injunctive relief at this time, Plaintiff herein expressly reserves the right to later secure the proper disposal, including incincerate of all contaminated soils and liquids containing PCB mixtures, in accordance with the Toxic Substances Control Act and the PCB Regulations promulgated thereunder.

ROBERT J. CINDRICH

United States Attorney

Date 6/4/79

By: /S/ William F. Ward

WILLIAM F. WARD

Assistant U.S. Attorney

Date 6/4/79

By: /S/

INTERSTATE TRANSFORMER, INC.

H. G. Snyder, President

Date 6/4/79

/S/

H. G. SNYDER ++EP++

ORDER

AND NOW, to wit, this day of June, 1979, IT IS ORDERED that the within Stipulation be and hereby is approved.

HONORABLE HUBERT I. TEITELBAUM

United States District Judge

BY CONSENT:

ROBERT J. CINDRICH

United States Attorney

Date 6/4/79

By: /S/ William F. Ward

WILLIAM F. WARD

Assistant United States Attorney

Date 6/4/79

By: /S/

INTERSTATE TRANSFORMER, INC.

H. G. Snyder, President

Date 6/4/79

/S/

H. G. SNYDER ++EP++

INTERSTATE TRANSFORMER, INC

DOC 01 of 06

COMPLAINT

03-80-C010

TSCA

OTHER

19801024

19790525

PAD092261809

(NO FACILITY NAME)

ELLWOOD CITY, PA

79-734C

03

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, Plaintiff,

v.

INTERSTATE TRANSFORMER, INC. AND H. G. SNYDER, Defendants.

CIVIL ACTION NO. 79-734-C

COMPLAINT

The United States of America, by its undersigned attorneys, at the request of the United States Environmental Protection Agency alleges that:

1. This is a civil action under the Toxic Substances Control Act (herein the "Act"), 15 U.S.C.Section2601, 90 Stat. 2003, to compel defendants to comply with regulations regarding storage and disposal of polychlorinated biphenyls (herein "PCBs"), which are improperly stored and disposed of in Ellwood City, Pennsylvania.

2. This court has jurisdiction under 28 U.S.C. Section 1345 and 15 U.S.C. Section 2616.

3. Defendant Interstate Transformer, Inc. is a corporation that does business in Ellwood City within the Western District of Pennsylvania, and engages in commerce involving PCBs within the Western District of Pennsylvania.

4. Defendant H. G. Snyder is an individual who resides in the Western District of Pennsylvania, and is involved in disposal and storage of PCBs within the Western District of Pennsylvania.

5. In accordance with Section 6(e) of the Toxic Substances Control Act, 15 U.S.C. Section 2605(e), which involves ++EP++

regulation of PCBs, on or about February 17, 1978, the Administrator of the Environmental Protection Agency (EPA) promulgated regulations prescribing disposal, storage and marking requirements for PCBs.

Page 2

40 C.F.R. Part 761; 43 Fed. Reg. 7150 (hereinafter the "PCB regulations").

6. Section 15 of the Act, 15 U.S.C. Section 2614, makes unlawful the failure to comply with any requirement prescribed by Section 5 or 6 of the Act, or any rule promulgated under Section 5 or 6 of the Act.

7. Section 17 of the Act, 15 U.S.C. Section 2616, provides for specific enforcement.

8. PCB mixtures are being disposed of and stored pending disposal at an industrial facility (herein the "facility") located in the vicinity of Hillside Avenue and Second Street in Ellwood City, within the Western District of Pennsylvania.

9. The disposal of PCBs and storage of PCBs for disposal at said Ellwood City facility are subject to the requirements of the PCB regulations and of the Toxic Substances Control Act.

10. At said facility there is an incinerator which has been and is used for the disposal of PCB's, which incinerator does not comply with the requirements of 40 C.F.R.Sub-Section761.10(b)(1), 761.40, 43 Fed. Reg. 7158-7161 (February 17, 1978).

11. Said facility includes buildings that are used for storage of PCBs for disposal. The buildings and containers therein that hold the PCB's do not comply with the requirements of 40 C.F.R. Section 761.42( b), 43 Fed. Reg. 7162-7163 (February 17, 1978). ++EP++

Page 3

12. PCBs are stored at said facility in containers that are not marked in accordance with 40 C.F.R. Section 761.44, 43 Fed. Reg. 7163.

13. Monitoring and record keeping regarding said PCBs is not being undertaken and maintained as required by 40 C.F.R. Section 761.45, 43 Fed. Reg. 7163.

14. PCBs are highly toxic at the concentration found in the Ellwood City facility.

15. The Ellwood City facility is inadequately secured, is near a residential area, and presents a risk of irreparable injury.

FIRST CLAIM

16. Paragraphs 1 through 3, and 5 through 15 are repeated and realleged.

17. Defendant Interstate Transformer, Inc. owned and owns said PCBs and operates said Ellwood City facility.

18. Defendant Interstate Transformer, Inc. has violated and is violating 15 U.S.C.Sub-Section2605(e), 2614 and 40 C.F.R. Part 761 by disposing of PCB mixtures in an incinerator that does not meet regulatory requirements, and is subject to 15 U.S.C. Section 2616.

19. Defendant Interstate Transformer, Inc. has violated and is violating 15 U.S.C.Sub-Section2605(e), 2614 and 40 C.F.R. Part 761, by failing properly to store PCB's for disposal, and is subject to 15 U.S. C. Section 2616.

20. Defendant Interstate Transformer, Inc. has violated and is violating 15 U.S.C.Sub-Section2605(e), 2614 and 40 C.F.R. Part 761 by failing to mark PCBs properly, and is subject to 15 U.S.C. Section 2616.

21. Defendant Interstate Transformer, Inc. has violated and is violating 15 U.S.C.Sub-Section2605(e), 2614 and 40 C.F.R. ++EP++

Part 761 by failing to comply with monitoring and record keeping requirements, and is subject to 15 U.S.C. Section 2616.

Page 4 SECOND CLAIM

22. Paragraphs 1, 2 and 4 through 15 are repeated and realleged.

23. Defendant H. G. Snyder owned and owns said PCBs and operates said Ellwood City facility.

24. Defendant H. G. Snyder has violated and is violating 15 U.S.C. Sub-Section2605(e), 2614 and 40 C.F.R. Part 761 by disposing of PCB mixtures in an incinerator that does not meet regulatory requirements, and is subject to 15 U.S.C. Section 2616.

25. Defendant H. G. Snyder has violated and is violating 15 U.S.C. Sub-Section2605(e), 2614 and 40 C.F.R. Part 761, by failing properly to store PCBs for disposal, and is subject to 15 U.S.C. Section 2616.

26. Defendant H. G. Snyder has violated and is violating 15 U.S.C. Sub-Section2605(e), 2614 and 40 C.F.R. Part 761 by failing to mark PCBs properly, and is subject to 15 U.S.C. Section 2616.

27. Defendant H. G. Snyder has violated and is violating 15 U.S.C. Sub-Section2605(e), 2614 and 40 C.F.R. Part 761 by failing to comply with monitoring and record keeping requirements, and is subject to 15 U.S.C.Section2616.

WHEREFORE, plaintiff United States of America, prays for judgment against defendants, jointly and severally:

1. Enjoining defendants from disposing of PCBs, except as in accordance with the requirements of the Act and PCB regulations. ++EP++

Page 5

2. Directing defendants to store said PCBs pending disposal in containers and in a facility that meets the requirements of the Act and PCB regulations.

3. Directing defendants to mark containers containing PCBs, pending disposal, in accordance with the Act and PCB regulations.

4. Directing defendants to comply with the monitoring and record keeping requirements of the Act and PCB regulations.

5. For such other relief as may be just and proper.

Respectfully submitted,

/s/ James W. Moorman

JAMES W. MOORMAN

Assistant Attorney General

Land and Natural Resources

Division

Department of Justice

Washington, D.C. 20530

ROBERT J. CINDRICH

United States Attorney

Pittsburgh, Pennsylvania

/s/ William F. Ward

WILLIAM F. WARD

Assistant United States Attorney

/s/ Lloyd S. Guerci

LLOYD S. GUERCI

Pollution Control Section

Land and Natural Resources

Division

Department of Justice

Washington, D.C. 20530

Of Counsel:

Marc Hillson

Joseph Donovan Attorneys,

Environmental Protection Agency

COMMONWEALTH EDISON CO.

DOC 02 OF 02

CONSENT DECREE

05-86-C022

TSCA

ELECT

19861112

19861112

ILD006929509

COMMONWEALTH EDISON CO.

CHICAGO, IL

84 C 1597

05

CONSENT DECREE FOR U.S. V. COMMONWEALTH EDISON CO.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

CIVIL ACTION NO. 84 C 1597

JUDGE MORAN

UNITED STATES OF AMERICA, Plaintiff,

v.

COMMONWEALTH EDISON COMPANY, Defendant.

CONSENT DECREE ++EP++ Page i TABLE OF CONTENTS Page I. JURISDICTION 2 II. DEFINITIONS 3 III. THE PARTIES BOUND 5 IV. OBJECTIVE AND SCOPE 5 V. ELIMINATION OF PCB CAPACITORS OUTSIDE RESTRICTED ACCESS ELECTRICAL GENERATING PLANTS AND SUBSTATIONS 7 VI. STANDARDS OF DECONTAMINATION 8 A. Potential High Contact Areas 8 B. Reduced Contact Areas 9 VII. RESPONSE TO FUTURE RELEASES FROM EDISON'S PCB CAPACITORS 10 A. Initial Site Inspection 11 B. Response Measures At Sites With Visible Contamination 11 1. Restricting Access Pending Decontamination 12 2. Notice 12 3. Initial Cleanup Measures 13 4. Initial Sampling And Analysis 14 5. Expansion Of Initial Sampling Grid 17 6. Additional Response Measures 19 (a) Attaining Applicable Standards Of Decontamination 19 (b) Responding To Peak PCB Concentrations At Individual Sample Locations 23 (c) Restoration 24 ++EP++ Page ii

Page

7. Schedule For Completing Response Action 25 C. Response Measures At Sites With No Visible Contamination 25 VIII. RESPONSE TO RELEASES OCCURRING PRIOR TO ENTRY OF CONSENT DECREE 26 A. Initial Site Inspection 26 B. Removal Of Failed PCB Capacitors 27 C. Response Measures At Sites With No Visible Contamination 27 1. Initial Sampling And Analysis 27 2. Initial Cleaning Measures 30 3. Further Sampling And Analysis 31 (a) Cleanup Zone Samples 32 (b) Initial Perimeter Samples 32 (c) Additional Perimeter Sampling 34 4. Determining Mean PCB Concentrations Within The Initial Cleanup Zone And The Affected Area 36 5. Attaining Applicable Standards Of Decontamination 36 (a) Initial Cleanup Zone 36 (b) Affected Area 38 6. Responding To Peak PCB Concentrations At Individual Sample Locations 41 7. Restoration 41 8. Cleanup Schedule 41 D. Response Measures At Sites With Visible Contamination 42 ++EP++ Page iii

Page

IX. STORAGE AND DISPOSAL OF REMOVED MATERIALS 42 X. SPILL AND CLEANUP REPORTING REQUIREMENTS 43 XI. SPECIAL REQUIREMENTS 44 XII. STIPULATED PENALTIES 45 XIII. DISPUTE RESOLUTION 48 XIV. COMPLIANCE WITH OTHER LAW 50 XV. COVENANT NOT TO SUE AND RESERVATION OF RIGHTS 50 XVI. PUBLIC NOTICE 51 XVII. RETENTION OF JURISDICTION 52 XVIII. TERMINATION 52

ATTACHMENT A, Illustrations 1 - 6

Exhibit 1 Spill Response Protocol For Sites Where No Visible Contamination Is Present

Exhibit 2 Protocol For Collection of Samples

Exhibit 3 Analytical Protocols ++EP++

Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

CIVIL ACTION NO. 84 C 1597

JUDGE MORAN

UNITED STATES OF AMERICA, Plaintiff,

v.

COMMONWEALTH EDISON COMPANY, Defendant.

CONSENT DECREE

WHEREAS, Commonwealth Edison Company ("Edison") is an investor-owned utility company which supplies electric power to customers throughout much of northern Illinois;

WHEREAS, Edison owns and operates as part of its electric power distribution system tens of thousands of capacitors which contain dielectric fluids having high concentrations of polychlorinated biphenyls ("PCBs");

WHEREAS, many of the aforementioned PCB capacitors are situated on utility poles which are located, inter alia, in residential neighborhoods, agricultural lands, along roadways and alleys, and near lakes and streams throughout northern Illinois;

WHEREAS, a substantial number of Edison's PCB capacitors rupture or otherwise fail every year, releasing PCBs into the environment; ++EP++

Page 2

WHEREAS, an unknown number of additional sites may be contaminated as a result of future discharges of PCBs from Edison's PCB capacitors until such capacitors are removed from service;

WHEREAS, the United States of America, on behalf of the Administrator of the United States Environmental Protection Agency ("U. S. EPA"), on February 21, 1984, filed a complaint captioned United States of America v. Commonwealth Edison Company, Civil Action No. 84 C 1597, in the United States District Court for the Northern District of Illinois, asserting claims under Sections 7 and 17 of the Toxic Substances Control Act ("TSCA"), 15 U.S.C. Sub-Section 2606 and 2616, and seeking declaratory and injunctive relief requiring, inter alia, the cleanup of contamination resulting from the releases of dielectric fluids from Edison's electrical equipment;

WHEREAS, Edison filed an answer in this Civil Action on March 12, 1984;

WHEREAS, U.S. EPA and Edison, by their respective attorneys, have consented to the entry of this Consent Decree;

NOW THEREFORE, before the taking of any testimony, upon the pleadings, and without admission or adjudication of any issue of fact or law herein, and with the consent of the parties hereto it is hereby ORDERED, ADJUDGED, AND DECREED that:

I. JURISDICTION

The Court has jurisdiction over the parties and the subject matter of this action under 28 U.S.C. Section 1345 and 15 U.S.C. Sub-Section 2606 and 2616. The complaint filed herein states a ++EP++

claim upon which the Court can grant relief under the Toxic Substances Control Act.

Page 3 II. DEFINITIONS

The definitions set forth herein shall apply to all part of this Consent Decree, including all Exhibits attached hereto.

A. "PCBs" has the definition set forth in 40 C.F.R. Section 761.3 (1985).

B. "PCB capacitor" means any Edison overhead distribution system capacitor containing any PCBs, whether or not currently operational or in service.

C. "Unit," when used to refer to electrical equipment, means an individual capacitor.

D. "Restricted access electrical generating plants and substations" shall have the meaning set forth in 40 C.F.R. Section 761.30(l)(1)(ii).

E. "Release" or "discharge" means any spilling, spraying, leaking, discharging, emitting, escaping, dumping, pouring, pumping or leaching of any materials from PCB capacitors, so that such materials are not wholly confined within the interior of such capacitors.

F. "Contamination" means any PCBs that have been released into the environment from PCB capacitors.

G. "Decontamination" is any response by Edison to a release from PCB capacitors which results in removal of all PCB contamination exceeding the standards required by this Consent Decree. ++EP++

Page 4

H. "Analysis" means every procedure and technique employed to determine the chemical composition of any material, and includes all activities and procedures relating to sample preservation, preparation, extraction and injection, and all activities relating to calibration of devices or equipment and verification of analytical results.

I. "Affected Area" means, with respect to each site of a release from a PCB capacitor, the smallest contiguous area which encompasses:

(1) all areas where visible contamination is identified during the initial site inspection conducted pursuant to Parts VII.A. or VIII.A, below, and all areas located within five feet of such visibly contaminated areas;

(2) all sampling locations (established in accordance with applicable requirements of Parts VII or VIII, below) where PCBs are detected at concentrations equal to or greater than 5 parts per million ("ppm") or 20 micrograms ("ug") per 100 square centimeters ("cm2"); and

(3) an area which extends four feet beyond all sampling locations referred to in section (2) above.

Notwithstanding any provision of section (2), above, the Affected Area shall not include any portion of the Initial Cleanup Zone established pursuant to Part VIII.C.2, below. See Appendix A, Illustrations 1 and 6.

J. "Response" means the cleanup or removal of PCBs from the environment; all actions to prevent or minimize releases of such substances from the environment; all actions to monitor, assess and evaluate releases or threatened releases of such substance; all actions pertaining to the transportation, ++EP++

storage and disposal of removed materials; and all actions to prevent, minimize or mitigate damage, or risk of damage, to health or the environment.

Page 5

K. "Environment" means any surface water, ground water, water in sanitary and storm sewers, soil, land surface or subsurface strata, vegetation or ambient air.

III. THE PARTIES BOUND

This Consent Decree shall apply to, and be binding upon, the parties and the successors and assigns of each, as well as any agencies, officers, directors, agents, and servants thereof. Each of the undersigned representatives of the parties hereto certifies that he or she is fully authorized by the party which he or she represents to agree to the terms and conditions of this Consent Decree, to execute and to legally bind such party to the terms of this Consent Decree.

Edison shall provide a copy of this Consent Decree to each contractor and agent that it retains to execute any work required to be performed under this Consent Decree, and shall condition any contract for such work on compliance with this Consent Decree. Notwithstanding any retention of contractors or agents to perform any work hereunder, Edison shall remain responsible for compliance with all terms, conditions, and requirements of this Consent Decree.

IV. OBJECTIVE AND SCOPE

A. The objective of the parties through entry of this Consent Decree is to protect public health and the environment from risks posed by releases of PCBs from Edison's PCB capacitors. ++EP++

Page 6

In order to eliminate a major source of such releases in the future, this Consent Decree provides for the expeditious removal from service and proper disposal of all PCB capacitors presently mounted on poles used in Edison's overhead electric power distribution system. In addition, this Consent Decree provides for decontamination of sites of releases, both past and future, from Edison's PCB capacitors. In all cases, the goal of Edison's decontamination efforts pursuant to this Consent Decree shall be to remove all PCB contamination from all Affected Areas and from all Initial Cleanup Zones established pursuant to Part VIII.C.2, below. This goal shall be deemed achieved at individual sites upon Edison's attainment of the applicable standards of decontamination set forth in Part VI of this Consent Decree and upon satisfactory implementation of all measures set forth

in Parts VII through IX of this Consent Decree.

B. This Consent Decree shall apply to the following sites affected by releases from Edison's PCB capacitors: (1) all sites affected by releases occurring subsequent to entry of this Consent Decree, (2) all sites affected by releases that Edison has reported to the National Emergency Spill Response Center prior to entry of this Consent Decree; (3) all sites affected by releases or suspected releases discovered during the capacitor removal operations conducted pursuant to Part V of this Consent Decree; (4) all sites affected by releases or suspected releases identified by Edison based on a review of all available reports, work orders, purchase orders and other documents and records which relate to Edison PCB capacitor failures, releases or ++EP++

response actions since April 18, 1978; and (5) each site identified by U.S. EPA as a potential site of contamination from Edison's PCB capacitors, unless Edison confirms that it never used PCB capacitors at such site.

Page 7 V. ELIMINATION OF PCB CAPACITORS OUTSIDE

RESTRICTED ACCESS ELECTRICAL GENERATING

PLANTS AND SUBSTATIONS

Except for capacitors located in restricted access electrical generating plants and substations, Edison shall cease all further use and operation of PCB capacitors by July 1, 1986. Edison represents that it has not used or operated any PCB capacitors outside restricted access electrical generating plants and substations since May 1, 1986.

Edison shall physically remove all PCB capacitors from its electric power distribution system, other than capacitors located in restricted access electrical generating plants and substations, by January 1, 1987. Edison shall store, handle and dispose of all capacitors removed from service pursuant to this Consent Decree in full compliance with all applicable federal, state and local laws and regulations, including the requirements of 40 C.F.R. Part 761 et seq.

During the capacitor removal operations conducted pursuant to this Part, Edison personnel shall examine all PCB capacitors and the areas in the immediate vicinity of such capacitors for any indications of prior PCB electrical equipment failures or releases at each such location. All indications of PCB electrical equipment failures or releases shall be promptly reported to Edison's Environmental Affairs Department. ++EP++

Page 8 VI. STANDARDS OF DECONTAMINATION

At each site governed by the provisions of this Consent Decree, Edison shall sample, clean up and remove released PCBs in accordance with the applicable requirements set forth below in Parts VII or VIII of this Consent Decree, until PCB concentrations are less than or equal to the applicable standards of decontamination set forth below in this Part. In addition, independently of Edison's attainment of applicable standards of decontamination established herein, Edison shall limit the maximum PCB concentration of individual samples at each site governed by this Consent Decree, as specified below in Parts VII.B.6(b), VII.C. 3, VIII.C.6 and VIII.D, below.

A. Potential High Contact Areas

At all residential properties, work areas, playgrounds, areas where human food or animal feed products or materials are produced, prepared, stored or cultivated, and areas where there is a significant probability for surface water contamination or for recurring human exposure or frequent human use, Edison shall achieve the following standards of decontamination:

1. On hard surfaces such as asphalt, metal, concrete, wood and other surfaces where wipe samples are authorized under Exhibit 2 attached hereto, Edison shall reduce the mean PCB concentration of wipe samples to 20 ug per 100 cm2 in both the Affected Area and the Initial Cleanup Zone at each site.

2. In soil, sand, sediments, vegetation and other media where core, scrape or liquid samples are authorized under Exhibit 2, Edison shall reduce the mean PCB concentration of nonwipe samples to 5 ppm in both the Affected Area and the Initial Cleanup Zone at each site. ++EP++

Page 9

The standard of decontamination set forth in section 1, above, shall not govern or apply to items such as contaminated household or garden furniture, playground equipment and other articles designed for intimate human contact, or frequent, sustained and continuous human use. Edison shall remove and properly dispose of all such items, rather than cleaning such items in accordance with the foregoing standards of decontamination. In the event that a release of PCBs contaminates the interior of any house or vehicle, Edison shall not be required automatically to remove and dispose of such items, provided that Edison reduces the level of contamination to 1 ug per 100 cm2 or demonstrates that it is not feasible to attain this standard of decontamination and that any remaining contamination presents no endangerment to health, welfare or the environment.

B. Reduced Contact Areas

In all areas not governed by the requirements set forth in subpart A of this Part, Edison shall achieve the following standards of decontamination:

1. On hard surfaces such as asphalt, metal, concrete, wood and other surfaces where wipe samples are authorized under Exhibit 2 attached hereto, Edison shall reduce the mean PCB concentration of wipe samples to 50 ug per 100 cm2 in both the Affected Area and the Initial Cleanup Zone at each site.

2. In soil, sand, sediments, vegetation and other media where core, scrape or liquid samples are authorized under Exhibit 2, Edison shall reduce the mean PCB concentration of non-wipe samples to 10 ppm in both the Affected Area and the Initial Cleanup Zone at the subject site. ++EP++

Page 10

The limit of quantitation used in analyzing all samples collected pursuant to this Consent Decree shall not exceed 1 ppm or, in the case of wipe samples, 1 ug per 100 cm2. For purposes of computing mean PCB concentrations within any Affected Area, or within any Initial Cleanup Zone established pursuant to Part VIII.C.2, below, Edison shall assign a value of .5 ppm or, in the case of wipe samples, .5 ug per 100 cm2, to each sample having a PCB concentration less than the applicable limit of quantitation.

PCB concentrations of individual samples collected pursuant to this Consent Decree shall be reported to the nearest 1.0 ppm, or in the case of wipe samples, to the nearest 1.0 ug per 100 cm2. Mean PCB concentrations within the Affected Area and within the Initial Cleanup Zone at each site governed by this Consent Decree shall be reported to the nearest .01 ppm, or in the case of wipe samples, to the nearest .01 ug per 100 cm2.

VII. RESPONSE TO FUTURE RELEASES

FROM EDISON'S PCB CAPACITORS

This Part identifies response measures which Edison shall implement in order to detect, contain, clean up and otherwise address any contamination in areas other than restricted access electrical generating plants and substations, as a result of releases or suspected releases from Edison's PCB capacitors subsequent to the signing of this Consent Decree. At all sites governed by this Part, Edison shall undertake and implement, at its expense, all applicable response measures set forth below and shall achieve all applicable standards of decontamination, in accordance with the schedules and deadlines set forth in this ++EP++ Part.

Page 11

Edison shall assume any and all liability arising from or relating to its acts or omissions in the performance of the work, or in its failure fully to perform or complete the work, required for the full execution and implementation of all response measures prescribed by

this Consent Decree.

A. Initial Site Inspection. At each site of a release or suspected release from Edison's PCB capacitors governed by this Part VII, Edison shall perform an initial site inspection in accordance with this subpart before initiating any other response measures specified in subparts B and C of this Part. Edison shall complete the initial site inspection within forty-eight (48) hours after discovering or receiving notice or information concerning the release or suspected release.

As part of each initial site inspection, Edison shall identify all areas where visible contamination may be present and prepare an Area Contamination Analysis Map, which shall accurately depict the location and extent of such areas. In conducting initial site inspections pursuant to this subpart, Edison shall follow the guidance set forth in Part I of Exhibit 1, attached hereto, unless site conditions or other circumstances render such guidelines inappropriate, in which event Edison shall employ equivalent procedures to identify visibly contamiated areas and to minimize tracking of PCBs into clean areas.

B. Response Measures At Sites With Visible Contamination. At each site where visible contamination is found during the initial site inspection conducted pursuant to subpart A, above, Edison shall implement all measures set forth in sections 1 through 7, below. ++EP++

Page 12

1. Restricting Access Pending Decontamination. Upon completion of each initial site inspection, Edison shall immediately restrict access to an area of potential contamination surrounding the failed capacitor unit and encompassing all visibly contaminated areas. Except where obstructions or other site conditions would make it infeasible, the restricted access area shall extend at least fifteen (15) feet in all directions from the utility pole or other location of the failed capacitor unit and at least five (5) feet in all directions beyond all visibly contaminated areas.

In meeting the aforementioned requirements of this section, Edison shall comply with the provisions set forth in Part II of Exhibit 1 or implement alternate measures which shall be equally effective in preventing or minimizing human and animal contact with contamination and in preventing the spreading of contamination.

2. Notice. As soon as possible after confirming that a release has occurred from its PCB capacitors, Edison shall notify the owners or occupants of all properties affected by the release, and shall inform such persons that Edison will assume full responsibility for site decontamination. Edison shall provide the notification required by this section in the manner specified in Part III of ++EP++

Exhibit 1 or in some other manner which provides equivalent assurances that such owners or occupants will receive actual notice of the release.

Page 13

3. Initial Cleanup Measures. At each site governed by subpart B of this part, Edison shall perform all initial cleanup measures specified below in this section. Edison shall commence such initial cleanup measures within forty-eight (48) hours after discovering or receiving notice or information concerning such release or suspected release. After commencing initial cleanup measures at any site, Edison shall complete all requirements of this section at the subject site as expeditiously as practicable.

As part of the initial cleanup measures, Edison shall, at a minimum:

(a) remove all failed PCB capacitor units at the site;

(b) clean the utility pole and all equipment and parts mounted thereon;

(c) implement measures to assure that any runoff from visibly contaminated areas will not enter sewers, catch basins and waterways, and collect such runoff for proper offsite disposal;

(d) remove all visibly contaminated vegetation, debris and other visibly contaminated objects, including but not limited to, household or garden furniture, playground equipment and other articles designed for intimate human contact, continuous human exposure or frequent, sustained and recurring human use, except for ++EP++

articles which may be cleaned pursuant to Part VI.A, above;

Page 14

(e) clean all areas of visible contamination on hard surfaces, such as concrete, asphalt, siding, and fences;

(f) remove all visibly contaminated sod or grass and all sod or grass located within five (5) feet of any area that is visibly contaminated;

(g) excavate and remove an additional one (1) to two (2) inch layer of soil from all areas where sod or grass is removed during the initial cleanup measures; and

(h) excavate and remove all soils from visibly contaminated areas, to a depth of eight (8) inches below the deepest visible signs of oil or contamination, and excavate and remove, to the same depth, all soils from adjacent areas located within five (5) feet of any contaminated area.

In implementing the initial cleanup measures required by this section, Edison shall follow the protocols set forth in Parts IV through XII of Exhibit 1, attached hereto, at each site, unless site conditions or other circumstances render such guidelines inappropriate, in which event Edison shall implement alternate measures with equivalent effectiveness in cleaning and removing PCB contamination and in reducing the spread of PCB contamination pending completion of all response measures at such site.

4. Initial Sampling And Analysis. Unless EPA approves a longer time period, within forty-eight (48) hours after completing all initial ++EP++

cleanup measures set forth in the preceding section, Edison shall conduct a sampling program in accordance with the requirements of this section at each site governed by subpart B of this Part, in order to determine the extent and degree of any residual contamination at the site.

Prior to any sampling pursuant to this section, Edison Environmental Affairs Department ("EAD") personnel shall establish the boundaries of an initial sampling area which shall extend at least twenty (20) feet in all directions from the failed capacitor unit and at least ten (10) feet in all directions beyond each area cleaned pursuant to the preceding section. EAD personnel shall determine sampling locations within the initial sampling area by establishing a right-angle sampling grid throughout such sampling area, with sampling points spaced at five-foot intervals in each direction on the grid. See Appendix A, Illustration 1. Where an obstruction makes it impracticable to collect a sample at a designated grid point, EAD personnel may adjust the sampling location to the extent necessary to avoid the obstruction.

In addition to collecting samples at the grid sampling points established pursuant to the preceding paragraph, Edison shall collect ++EP++

samples at the following locations and intervals: (i) on all walls, fences and other vertical surfaces located within the initial sampling area, at intervals not to exceed five (5) feet in each direction; (ii) along all drainage channels located within the initial sampling area, at intervals not to exceed five (5) feet; (iii) at least one sample at all sensitive locations, such as vegetable gardens, pools, outdoor furniture, doors and windows within the initial sampling area; (iv) at least one sample in front of all storm sewer openings and other drains which receive surface runoff from the initial sampling area; and (vi) one or more samples from an area located within a two-foot radius of the base of the pole, as specified below.

Page 16

Edison shall collect all samples in the manner specified in the Sampling Protocols attached as Exhibit 2 to the Consent Decree or in some other manner which assures that the samples are representative of conditions at each site.

If the area within a two foot radius of the base of the pole consists of hard surfaces where wipe samples are authorized under Exhibit 2, Edison shall collect wipe samples from four (4) six-inch-by-six-inch areas located as close to the pole as possible and in all four directions from ++EP++ the pole and composite such samples in one sample jar.

Page 17

If the area within a two foot radius of the base of the pole consists of soil, grass or other media where scrape samples or other types of samples are authorized under Exhibit 2, Edison shall collect material from 3 or 4 points spaced evenly throughout the subject area.

EAD personnel shall revise the Area Contamination Analysis Map referred to in subpart A above, to depict both the boundaries of the sampling area and the location of each sampling point. In addition, Edison shall assign a unique site-specific sample number to each sample required pursuant to this subsection, and Edison shall indicate on the Area Contamination Analysis Map, or on an attachment thereto, the sample number which corresponds to each sample location shown on such Map.

Edison shall promptly analyze all samples collected pursuant to this section in the manner specified in Exhibit 3 or in accordance with other laboratory procedures approved by EPA.

5. Expansion Of Initial Sampling Grid. At each site governed by the provisions of Part VII of this Consent Decree, Edison shall expand the initial sampling grid established pursuant to the preceding section and shall collect and analyze samples from the expanded sampling grid, ++EP++

until PCB concentrations do not exceed 5 ppm, or in the case of wipe samples, 20 ug per 100 cm2, at two successive sample stations in all directions outward from any sample station where PCB concentrations exceed 5 ppm or, in the case of wipe samples, 20 ug per 100 cm2.

Page 18

See Appendix A, Illustration 1.

At each site governed by subpart B of this Part, EAD personnel shall determine the boundaries of the Affected Area and the mean concentration of PCBs on hard surfaces and in other media within such Affected Area, promptly upon completion of all required sampling and analysis relating to the subject site.

EAD personnel shall revise the Area Contamination Analysis Map of each site to show the location of all sampling points on the expanded sampling grid and to identify the boundaries of the Affected Area at the subject site. In addition, Edison shall assign a unique sample number to each sample collected from the expanded sampling grid and shall indicate on the Area Contamination Analysis Map, or on an attachment thereto, the sample number which corresponds to each sample location shown on such Map.

Nothing in this section shall prohibit Edison from performing intermediate cleanups ++EP++

following the initial removal of visible material pursuant to section 3 of this subpart and prior to completing expansion of the sampling grid, provided that all such intermediate cleanups are confined to areas that have previously been sampled.

Page 19 6. Additional Response Measures. (a) Attaining Applicable Standards Of Decontamination.

After obtaining any analytical results indicating that mean PCB concentrations exceed any applicable standard of decontamination at any site governed by subpart B of this Part, Edison shall return to the subject site and initiate additional response measures in accordance with the requirements of this section within fourteen (14) days or such longer period as U.S. EPA approves for the subject site. Edison shall clean hard surfaces and remove soil, vegetative cover, including grass and sod, and other materials throughout the Affected Area at each such site until the mean PCB concentrations within the Affected Area at the subject site are less than or equal to any applicable standard of decontamination set forth in Part VI, above.

Whenever mean PCB concentrations within the Affected Area at any site exceed ++EP++

any applicable standard of decontamination set forth in Part VI.A.2 or VI.B.2, above, Edison shall, at a minimum:

Page 20

(i) excavate and remove soil or other material, to a depth of at least four (4) inches, in all parts of the Affected Area where grass, sod or other vegetative cover is not present;

(ii) remove all sod, grass and other vegetative cover throughout the entire Affected Area;

(iii) excavate and remove an additional one (1) to two (2) inch layer of soil or other material in all areas where sod, grass or other vegetative cover is removed pursuant to this subsection;

(iv) after completing all excavation and removal requirements specified in (i) through (iii), above, collect additional samples throughout the Affected Area, at intervals not to exceed five (5) feet in any direction, at locations specified by EAD personnel; and

(v) after completing all excavation, removal and sampling requirements specified in subparagraphs (i) through (iv), above, analyze all such samples in the manner specified in Exhibit 3, attached hereto, or in accordance with other laboratory procedures approved by EPA.

If mean PCB concentrations within the Affected Area at any site continue to exceed any applicable standard of decontamination set forth in Part VI.A.2 or VI.B.2, above, upon completion of the foregoing ++EP++

additional response measures at such site, Edison shall remove an additional one (1) to two (2) inch layer of soil or

other material throughout the Affected Area at such site.

Page 21

Thereafter, Edison shall perform additional sampling and analysis in accordance with the provisions set forth in subparagraphs (iv) and (v) of the preceding paragraph in order to document PCB concentrations within the Affected Area. Edison shall repeat the removal, sampling and analysis measures set forth in this paragraph until mean PCB concentrations within the Affected Area do not exceed any applicable standard of decontamination set forth in Part VI.A.2 or VI.B.2.

Whenever mean PCB concentrations within the Affected Area at any site exceed any applicable standard of decontamination set forth in Part VI.A.1 or VI.B.1, above, Edison shall clean or reclean all hard surfaces throughout the Affected Area at each such site, in accordance with the protocols set forth in Part XII of Exhibit 1, attached hereto, or following alternate measures having equivalent effectiveness in removing PCB contamination from the site. Thereafter, Edison shall collect additional samples from all hard surfaces throughout the Affected Area at the subject site, at intervals not to exceed five (5) feet in any direction, at locations specified by EAD personnel.

Page 22

Edison shall collect all samples required pursuant to this subsection in accordance with the Sampling Protocols attached as Exhibit 2 to the Consent Decree or in some other manner which assures that the samples are representative of conditions at this subject site. Edison shall analyze all such samples in the manner specified in Exhibit 3, attached hereto, or in accordance with other laboratory procedures approved by EPA. Edison shall repeat the cleaning, sampling and analysis measures set forth in this paragraph until mean PCB concentrations within the Affected Area do not exceed any applicable standard of decontamination set forth in Part VI.A.1 or Part VI.B.1.

EAD personnel shall revise the Area Contamination Analysis Map of each site governed by this subsection to show the location of all samples collected at such site pursuant to this subsection. Edison shall assign a unique site-specific sample number to each sample required pursuant to this ++EP++

subsection and Edison shall indicate on the Area Contamination Analysis Map, or an attachment thereto, the sample number which corresponds to each location shown on the Map.

Page 23

(b) Responding To Peak PCB Concentrations At Individual Sample Locations. Notwithstanding Edison's attainment of all applicable standards of decontamination at any site governed by subpart B of this Part, Edison shall perform additional cleaning of hard surfaces and removal of soil, vegetative cover and other materials at each site, as necessary to meet the requirements specified below in paragraphs (1) and (2).

(1) Potential High Contact Areas.

In all locations designated as Potential High Contact Areas in Part VI.A., above, Edison shall:

(i) reclean all hard surfaces within a five (5) foot radius of each point where PCBs are detected in concentrations exceeding 50 ug per 100 cm2 during the final round of sampling; and

(ii) remove an additional one (1) to two (2) inch layer of soil or other materials within a five (5) foot radius of each point where PCBs are detected in concentrations exceeding 15 ppm during the final round of sampling. ++EP++

Page 24

(2) Reduced Contact Areas. In all locations designated as Reduced Contact Areas in Part VI.B., above, Edison shall.

(i) reclean all hard surfaces within a five (5) foot radius of each point where PCBs are detected in concentrations exceeding 100 ug per 100 cm2 during the final round of sampling; and

(ii) remove an additional one (1) to two (2) inch layer of soil or other material within a five (5) foot radius of each point where PCBs are detected at concentrations exceeding 15 ppm during the final round of sampling.

At each site, Edison shall initiate the response measures required by paragraphs (1) and (2), above, within fourteen (14) days after obtaining analytical results pertaining to the final set of samples collected within the Affected Area at the subject site pursuant to subsection (a) of this section.

(c) Restoration. At each site where Edison has completed the removal of soil or vegetation, or both, in accordance with Part VII.B. 3, 5 or 6, above, Edison shall promptly restore the original grade of the property by placing soil containing less than one (1) ppm of PCBs in all excavated areas and place uncontaminated sod containing less than one (1) ppm of PCBs in all areas where sod or grass was removed. ++EP++

Page 25

7. Schedule For Completing Response

Actions. Edison shall reclean each site and place uncontaminated soil and sod at such sites pursuant to Part VII.B.6, above, on a commercially reasonable schedule, which shall not extend more than sixty (60) days after Edison first discovers or receives notice or information concerning the release or suspected release at such site.

C. Response Measures At Sites With No Visible

Contamination. At each site where visible contamination is not present during the initial site inspection conducted pursuant to Part VII.A. of this Consent Decree, Edison shall implement all applicable response measures set forth below in this subpart.

1. Edison shall comply with all notice requirements set forth in Part VII.B.2;

2. After discovering or receiving notice or information concerning any release or suspected release governed by this subpart, Edison shall initiate a sampling program in accordance with the requirements of Part VII.B.4, above, within forty-eight (48) hours, or within such longer period as U.S. EPA approves for the subject site, in order to determine the extent and degree of any contamination at such site; and

3. Edison shall comply with all requirements set forth in sections (5) through (7) of Part VII.B. ++EP++

Page 26 VIII. RESPONSE TO RELEASES OCCURRING PRIOR TO ENTRY

OF CONSENT DECREE.

This Part identifies response measures which Edison shall implement in order to detect, contain, clean up and otherwise address any contamination in areas other than restricted access electrical generating plants and substations, as a result of releases or suspected releases from Edison's PCB capacitors which occurred prior to the signing of this Consent Decree. At all sites governed by this Part, Edison shall undertake and implement, at its expense, all applicable response measures set forth below and shall achieve all applicable standards of decontamination, in accordance with the schedules and deadlines set forth in this Part. Edison shall assume any and all liability arising from or relating to its acts or omissions in the performance of the work, or in its failure fully to perform or complete the work, required for the full execution and implementation of all response measures prescribed by this Consent Decree.

A. Initial Site Inspection. At each site of a release or suspected release from Edison's PCB capacitors governed by this Part VIII, Edison shall perform an initial site inspection in accordance with this subpart. As part of each such initial site inspection, Edison shall identify all areas where visible contamination may be present and prepare an Area Contamination Analysis Map, which shall accurately depict the location and extent of such areas. In conducting initial site inspections pursuant to this subpart, Edison shall follow the guidance set forth in Part I of Exhibit 1, attached hereto, unless site conditions or other circumstances render such guidelines ++EP++ inappropriate, in which event Edison shall employ equivalent procedures to identify visibly contaminated areas and to minimize tracking of PCBs into clean areas.

Page 27

Except at sites where Edison has performed sampling in accordance with Part VIII.C.1, below, prior to entry of this Consent Decree, Edison shall complete the initial inspection required by this subpart prior to completing any other requirements set forth in this Part.

B. Removal Of Failed PCB Capacitors. At each site governed by this Part, Edison shall examine all PCB capacitors and remove any failed units. Except where Edison has completed sampling in accordance with Part VIII.C.1, below, prior to the signing of this Consent Decree, Edison shall complete the requirements of this subpart prior to performing any of the other response measures set forth below in this Part.

C. Response Measures At Sites With No Visible Contamination. At each site where visible contamination is not present during the initial site inspection conducted pursuant to Part VIII.A. of this Consent Decree, Edison shall implement all applicable response measures set forth below in sections 1 through 8 of this subpart.

1. Initial Sampling And Analysis. In order to determine the extent and degree of any contamination at each site governed by this subpart, Edison shall conduct an initial sampling program in accordance with the requirements set forth below. ++EP++

Page 28

At each site governed by this subpart, EAD personnel shall establish an initial sampling area which shall extend at least fifteen (15) feet in each direction from the utility pole or other location of any failed PCB capacitor at the site. Within the initial sampling area at each site, EAD personnel shall establish sampling locations using a Nine Point Sampling Grid which shall conform to Appendix A, Illustration 2. Where an obstruction makes it impracticable to collect a sample at a particular point on the Nine Point Sampling Grid, EAD personnel may adjust the sampling location to the extent necessary to avoid the obstruction. Edison shall collect samples at all sampling points established pursuant to this paragraph.

In addition, at sites which have not been sampled in accordance with the preceding paragraph prior to entry of this Consent Decree, and sites which, based upon sampling data collected prior to entry of this Consent Decree, exhibit contamination in excess of 5 ppm (or, in the case of wipe samples, 20 ug per 100 cm2) at any sample point on the Nine Point Sampling Grid, EAD personnel shall establish sampling points within the initial sampling area at each of the following locations ++EP++

and intervals:

Page 29

(a) on all walls, fences and other vertical surfaces in the initial sampling area, at intervals not to exceed five (5) feet;

(b) along all drainage channels located within the initial sampling area, at intervals not to exceed five (5) feet; and

(c) at least one sample at all sensitive locations, such as vegetable gardens, sandboxes, pools, doors and windows within the initial sampling area.

At all sampling locations established pursuant to this section, Edison shall collect samples in accordance with the sampling protocols attached as Exhibit 2 to the Consent Decree or in some other manner which assures that the samples are representative of conditions at the site. Edison shall promptly analyze all such samples in the manner specified in the Analytical Protocols attached as Exhibit 3 to this Consent Decree or in accordance with other laboratory procedures approved by EPA.

For each site governed by this subpart, EAD personnel shall prepare an Area Contamination Analysis Map which shall accurately depict both the boundaries of the initial sampling area and the location of each sampling point established pursuant to this section. Edison shall assign a unique site-specific sample number to each ++EP++

sample required pursuant to this section, and Edison shall indicate on the Area Contamination Analysis Map, or on an attachment thereto, the sample number which corresponds to each sample location shown on such Map.

Page 30

2. Initial Cleaning Measures. If PCB concentrations in excess of five (5) ppm or, in the case of wipe samples, 20 ug per 100 cm2 are detected at any sampling point on the Nine Point Sampling Grid, Edison shall clean all hard surfaces and remove soil, sod and other materials throughout an Initial Cleanup Zone, as specified below. The Initial Cleanup Zone at each site shall be composed of one or more nineteen-feet-by-nineteen-feet (19' x 19') square areas centered around each "interior sampling point" (as designated in Appendix A, Illustration 2) where PCB concentrations exceed the values set forth above in this paragraph and one or more nine-feet-by-nine-feet (9' x 9') square areas centered around each "exterior sampling point" (as designated in Appendix A, Illustration 2) where PCB concentrations exceed said values. See Appendix A, Illustrations 3 - 5.

At a minimum, Edison shall perform the following response measures within the Initial ++EP++ Cleanup Zone at each site governed by this section:

Page 31

(a) excavate and remove soil or other material, to a depth of at least four (4) inches, in all parts of the Initial Cleanup Zone where grass, sod or other vegetative cover is not present;

(b) remove all sod, grass and other vegetative cover throughout the entire Initial Cleanup Zone;

(c) excavate and remove an additional one (1) to two (2) inch layer of soil or other material in all areas where sod, grass or other vegetative cover is removed pursuant to this section; and

(d) clean all hard surfaces in the Initial Cleanup Zone.

In implementing the foregoing response measures within the Initial Cleanup Zone at each site, Edison shall follow the protocols set forth in Parts IV through XII of Exhibit 1, or alternate measures with equivalent effectiveness in removing PCBs and in reducing the spread of PCB contamination pending completion of all response measures at such site.

3. Further Sampling And Analysis. At each site subject to the requirements set forth in the preceding section, Edison shall perform the additional sampling specified below as expeditiously as practicable after completing initial response measures within the Initial Cleanup Zone at the subject site. ++EP++

Page 32

(a) Cleanup Zone Samples. Edison shall collect samples throughout the Initial Cleanup Zone, at intervals not to exceed five (5) feet in each direction, within three (3) working days after completing Initial Cleanup Measures pursuant to the preceding section, unless U.S. EPA approves a later deadline for completion of such sampling. Sampling points within the Initial Cleanup Zone shall be located on an extension of the same five-foot right angle sampling grid which incorporates the sample points from the Nine Point Sampling Grid. See Appendix A, Illustration 5 with Overlay A. Where an obstruction makes it impracticable to collect a sample at any designated grid point within the Initial Cleanup Zone, EAD personnel may adjust the sampling location to the extent necessary to avoid the obstruction.

(b) Initial Perimeter Samples. At each site subject to the requirements of section 2 of this subpart, Edison shall collect initial perimeter samples outside all Initial Cleanup Zones at such site, as specified below in this subsection, within three (3) working days after completing Initial Cleanup ++EP++ Measures at a site pursuant to Part VIII.

Page 33

C.2, above, unless U.S. EPA approves a later deadline for the

collection of such perimeter samples.

Around each exterior sampling point on the Nine Point Sampling Grid where PCBs are detected in concentrations in excess of five (5) ppm or, in the case of wipe samples, 20 ug per 100 cm2, Edison shall collect perimeter samples outside the Initial Cleanup Zone, following the sampling pattern shown in Appendix A, Illustration 4 with Overlay A. Nothing in the preceding sentence shall require Edison to collect any samples within the Initial Cleanup Zone.

In addition to the samples required above in the preceding paragraph, Edison shall collect perimeter samples one foot beyond the boundaries of the Initial Cleanup Zone, at intervals not to exceed ten (10) feet. See Appendix A, Illustration 5 with Overlay A. To the extent that samples from the Nine Point Sampling Grid satisfy the criteria of the preceding sentence, such samples may be used as perimeter samples.

To the maximum extent practicable, all samples required pursuant to subsections (a) ++EP++

and (b) of this section shall be located on an extension of the same five (5) foot right angle sampling grid which incorporates the sample points from the Nine Point Sampling Grid.

Page 34

Where an obstruction makes it impracticable to collect a sample at any designated perimeter sample point on the five (5) foot right angle sampling grid, EAD personnel may adjust the sampling location to the extent necessary to avoid the obstruction.

Edison shall collect all samples required pursuant to subsections (a) and (b) of this section in the manner specified in the Sampling Protocols attached as Exhibit 2 to the Consent Decree or in some other manner which assures that the samples are representative of conditions at the subject site. Edison shall promptly analyze all such samples in the manner specified in Exhibit 3 or in accordance with other laboratory procedures approved by EPA.

(c) Additional Perimeter Sampling. If PCB concentrations in excess of five (5) ppm or, in the case of wipe samples, 20 ug per 100 cm2, are detected at any perimeter sampling points established pursuant to the preceding subsection, Edison shall ++EP++

collect additional perimeter samples around each such contaminated perimeter sampling point, following the sampling pattern shown in Appendix A, Illustration 5 with Overlay B.

Page 35

Nothing in the preceding sentence shall require Edison to collect more than one sample at the same perimeter sample location. Edison shall continue to expand the sampling grid as provided herein until all new perimeter samples collected during a particular round of sampling contain PCBs in concentrations less than or equal to five (5) ppm or, in the case of wipe samples, 20 ug per 100 cm2. See Appendix A, Illustration 5 with Overlay C.

EAD personnel shall revise the Area Contamination Analysis Map of each site governed by this subpart VIII.C to show the location of all samples collected at such site pursuant to subsections (a) - (c) of this section. Edison shall assign a unique site-specific sample number to each sample required pursuant to this section, and Edison shall indicate on the Area Contamination Analysis Map, or on an attachment thereto, the sample number which corresponds to each sample location shown on such Map. ++EP++

Page 36

At each site governed by this subpart, EAD personnel shall determine the boundaries of the Affected Area promptly upon completion of all required sampling and analysis relating to the subject site.

4. Determining Mean PCB Concentrations Within The Initial Cleanup Zone And The Affected Area. At each site governed by this subpart, after completing sampling within the Initial Cleanup Zone in accordance with the provisions of Part VIII.C.3 (a), above, EAD personnel shall promptly determine mean PCB concentrations of the samples collected from hard surfaces and the samples collected from other media within the Initial Cleanup Zone at the subject site.

In addition, at each site governed by this subpart, after determining the boundary of the Affected Area in accordance with Part VIII.C.3(c), above, EAD personnel shall determine mean PCB concentrations of the samples collected from hard surfaces and the samples collected from other media within the Affected Area at the subject site.

5. Attaining Applicable Standards Of Decontamination.

(a) Initial Cleanup Zone. If mean PCB concentrations within the Initial Cleanup Zone at any site governed by this subpart exceed ++EP++

any applicable standard of decontamination set forth in Part VI, above, Edison shall reclean all hard surfaces and remove additional material throughout the Initial Cleanup Zone at the subject site, until mean PCB concentrations within the Initial Cleanup Zone are less than or equal to any applicable standard of decontamination.

Page 37

Whenever the mean concentration of PCBs in the Initial Cleanup Zone at any site governed by this subpart exceeds any applicable standard of decontamination set forth in Part VI.A.2 or VI.B.2, above, Edison shall, at a minimum, excavate and remove an additional one (1) to two (2) inch layer of soil or other material throughout the Initial Cleanup Zone at the subject site.

After removing additional soil or recleaning hard surfaces throughout the Initial Cleanup Zone pursuant to the preceding paragraphs of this subsection, Edison shall collect additional samples throughout the Initial Cleanup Zone, at intervals not to exceed five (5) feet in any direction, at locations specified by EAD personnel. Edison shall collect all such samples in the manner specified in Exhibit 2, attached hereto, or in some other ++EP++ other manner which assures that the samples are representative of conditions at the subject site.

Page 38

Edison shall analyze all such samples in the manner specified in Exhibit 3 or in accordance with other laboratory procedures approved by EPA. Edison shall repeat the cleaning, sampling and analysis requirements set forth in this subsection until mean PCB concentrations on hard surfaces and in soil or other material within the Initial Cleanup Zone do not exceed any applicable standard of decontamination set forth in Part VI, above.

(b) Affected Area. Whenever mean PCB concentrations within the Affected Area at any site exceed any applicable standard of decontamination set forth in Part VI.A.2 or VI.B.2, above, Edison shall:

(i) excavate and remove soil or other material, to a depth of at least four (4) inches, in all parts of the Affected Area where grass, sod or other vegetative cover is not present;

(ii) remove all sod, grass and other vegetative cover throughout the entire Affected Area;

(iii) excavate and remove an additional one (1) to two (2) inch layer of soil or other material in all areas where sod, grass or other vegetative cover is removed pursuant to paragraph (ii), above;

(iv) after completing all excavation and removal requirements specified in (i) through (iii), above, collect additional ++EP++

samples throughout the Affected Area, at intervals not to exceed five (5) feet in any direction, at locations specified by EAD personnel; and

Page 39

(v) after completing all excavation, removal and sampling requirements specified in paragraphs (i) through (iv), above, analyze all such samples in the manner specified in Exhibit 3, attached hereto, or in accordance with other laboratory procedures approved by EPA.

If mean PCB concentrations within the Affected Area at any site continue to exceed any applicable standard of decontamination set forth in Part VI.A.2 or VI.B.2, above, upon completion of the foregoing additional response measures at such site, Edison shall remove an additional one (1) to two (2) inch layer of soil or other material throughout the Affected Area at such site. Thereafter, Edison shall perform additional sampling and analysis in accordance with the provisions set forth in paragraphs (iv) and (v) of this subsection in order to document PCB concentrations within the Affected Area. Edison shall repeat the removal, sampling and analysis measures set forth in this paragraph until mean PCB concentrations within the Affected Area do not exceed any applicable standard of decontamination set forth in Part VI.A.2 or VI.B.2.

Whenever mean PCB concentrations within the Affected Area at any site governed ++EP++

by this subpart exceed any applicable standard of decontamination set forth in Part VI.A.1 or VI.B.1, above, Edison shall clean or reclean all hard surfaces throughout the Affected Area at each such site, in accordance with the protocols set forth in Part XII of Exhibit 1, attached hereto, or following alternate measures having equivalent effectiveness in removing PCB contamination from the site.

Page 40

Thereafter, Edison shall collect additional wipe samples from all hard surfaces throughout the Affected Area at the subject site, at intervals not to exceed five (5) feet in any direction, at locations specified by EAD personnel. Edison shall collect all such samples in the manner specified in Exhibit 2, attached hereto, or in some other manner which assures that the samples are representative of conditions at the subject site. Edison shall analyze all such samples in the manner specified in Exhibit 3 or in accordance with other laboratory procedures approved by EPA. Edison shall repeat the cleaning, sampling and analysis requirements set forth in this subsection until mean PCB concentrations on hard surfaces within the Affected Area do not exceed any applicable standard of

decontamination set forth in Part VI.A.1 or VI.B.1, above. ++EP++

Page 41

6. Responding To Peak PCB Concentrations At Individual Sample Locations. Notwithstanding Edison's attainment of all applicable standards of decontamination at any site governed by this subpart, Edison shall perform additional cleaning of hard surfaces and removal of soil, vegetative cover and other materials within the Initial Cleanup Zone and the Affected Area at each site, as specified in Part VII.B.6.(b), above.

7. Restoration. At each site where Edison has completed the removal of soil or vegetation, or both, in accordance with sections 2, 5, and 6 of this subpart, Edison shall promptly restore the original grade of the subject property by placing soil containing less than one (1) ppm of PCBs in all excavated areas and placing uncontaminated sod containing less than one (1) ppm of PCBs in all areas where sod or grass was removed.

8. Cleanup Schedule. Edison may complete recleaning and replacement of soil and sod at each site on a commercially reasonable schedule, which shall not extend more than ninety (90) days after initiation of the Initial Cleanup Measures pursuant to section 2 of this subpart. Beginning four (4) months following entry of this Consent Decree, Edison shall initiate decontamination of at least sixty (60) sites per twelve (12) month period, ++EP++

until Edison has completed decontamination of all sites governed by this Part.

Page 42

D. Response Measures At Sites With Visible Contamination. If visible contamination is found at any site during the initial site inspection conducted pursuant to subpart A of this Part, Edison shall implement all measures set forth in sections (1) through (6) of Part VII.B, above at each such site. At each site governed by this subpart, Edison shall complete all required response measures within ninety (90) days after the removal of visibly contaminated material.

IX. STORAGE AND DISPOSAL OF REMOVED MATERIALS.

All capacitor units and parts which Edison is required to remove and dispose of pursuant to this Consent Decree shall be placed directly into containers that meet the specifications for storage of PCBs set forth in 40 C.F.R. Section 761.65(c)(6). Edison shall store such containers and their contents in accordance with 40 C.F.R. Section 761.65 and shall dispose of such containers and their contents in compliance with 40 C.F.R. Section 761.70. All soil, sod, vegetation and debris removed pursuant to this Consent Decree, including but not limited to absorbent pads, plastic sheeting, PCB contaminated weights, rags, disposable protective boots and gloves used by Edison in the course of implementing the requirements of this Consent Decree, shall be stored in accordance with 40 C.F.R. Section 761.65 and disposed of in a manner specified in 40 C.F.R. Section 761.60(a)(4). ++EP++

Page 43 X. SPILL AND CLEANUP REPORTING REQUIREMENTS

A. Upon completion of all inspection, sampling, analysis, cleanup, and response measures required at each release site decontaminated pursuant to this Consent Decree, Edison shall promptly submit to U.S. EPA, Region V, at the address listed below in subpart C of this Part, a signed Certification of Completion of Work which shall include, at a minimum, the date of the release, location of the release site, the date of completion of Edison's response activities, a statement of the mean PCB concentration of all wipe samples and all non-wipe samples in the Affected Area, and a list indicating the levels of PCBs remaining at each sample location after cleanup, expressed in parts per million PCBs, or, in the case of wipe samples, in ug per 100 cm2. Along with the Certification of Completion of Work, Edison shall submit all Area Contamination Analysis Maps for each site to U.S. EPA.

B. Edison shall promptly notify U.S. EPA upon completion of all applicable requirements at all sites governed by this Consent Decree.

C. Beginning immediately upon the entry of this Consent Decree, Edison shall report all releases of PCBs from PCB electrical equipment in amounts greater than one (1) pound, no later than twenty-four (24) hours after Edison learns or is notified of such releases, to:

1. The National Spill Response Center, (800) 424-8802; and

2. U.S. EPA, Region V, Toxic Materials, Branch, 230 South Dearborn Street, Chicago, Illinois 60604 (312) 353-2318. ++EP++

Page 44

Such reports shall indicate, at a minimum, the location and date of each Edison PCB electrical equipment release, and estimated volume of material released.

D. By July 1 of each calendar year during the pendency of this Consent Decree, Edison shall submit to U.S. EPA, at the address listed above, a copy of Edison's annual PCB report and supporting documents as required to be maintained by 40 C.F.R. Section 761.180(a).

XI. SPECIAL REQUIREMENTS

A. Right of Entry. U.S. EPA may exercise all rights of entry, access and inspection provided by any applicable law, any provision of this Consent Decree to the contrary notwithstanding. In addition, Edison shall allow U.S. EPA and its authorized representatives, upon the presentation of their credentials:

1. To enter upon any premises where Edison maintains any records required to be kept under this Consent Decree, for the purpose of reviewing, inspecting and copying such records;

2. To enter upon any Edison premises for the purpose of inspecting any PCB capacitors or sampling any release of PCBs from such capacitors. Upon request, Edison shall provide USEPA with an opportunity to split-sample at any site of a release from any of Edison's PCB capacitors.

Edison shall not in any way obstruct or interfere with efforts by USEPA to obtain access to any property affected by a release from Edison's PCB capacitors; nor shall Edison in ++EP++ any way encourage any person to withhold, deny, limit or delay access by USEPA or its authorized representatives to any such property, in accordance with this Decree.

Page 45

B. Operation and Maintenance of PCB Capacitors

All PCB capacitors shall be operated and maintained in a manner consistent with the objectives of this Consent Decree.

XII. STIPULATED PENALTIES

A. For each instance in which Edison fails to attain any applicable standard of decontamination set forth in Part VI of this Consent Decree in accordance with the applicable schedule set forth in Part VII.B.7, VII.C.3., VIII.C.8 or VIII.D, above, Edison shall pay a stipulated penalty in the following amounts for each day that the violation continues:

PERIOD OF NONCOMPLIANCE PENALTY PER DAY 1st day to 30th day $2,500 31st day to 60th day $5,000 Each day beyond 60th day $10,000

No penalty shall be due pursuant to this subpart in any instance in which the Court determines, in Dispute Resolution proceedings pursuant to Part XIII, below, that the violation resulted from a good faith, reasonable misclassification of a Potential High Contact Area site as a Reduced Contact Area site, provided that Edison thereafter attains the appropriate standard of decontamination within sixty (60) days after the decision of the Court in such Dispute Resolution proceeding. ++EP++

Page 46

Furthermore, no penalty shall be due in any instance in which the Court determines in dispute resolution proceedings pursuant to Part XIII below, that the violation resulted from U.S. EPA's determining an applicable standard of decontamination has not been met, provided that:

1. Edison has followed all cleanup and sampling protocols specified in Parts VI through VIII of this Decree;

2. Edison has analyzed all samples pursuant to Exhibit 3 of this Decree;

3. Edison has determined, in good faith, based upon its own analytical results, that all applicable standards of decontamination have, in fact, been met; and

4. Edison agrees to take remedial action based upon U.S. EPA's sampling results to verify and correct the violation.

B. For each instance in which Edison fails to comply with any requirement set forth in Parts VII.B.6.(b), VII.C.3, VIII.C.6 or VIII. D, above, relating to peak PCB concentrations at individual sample locations, Edison shall pay a stipulated penalty in the following amounts for each day that the violation continues:

PERIOD OF NONCOMPLIANCE PENALTY PER DAY 1st day to 30th day $1,000 31st day to 60th day $2,500 Each day beyond 60th day $5,000

C. If Edison fails to complete decontamination of at least 60 sites per twelve (12) month period in accordance with Part VIII.C.8, above, Edison shall pay a stipulated penalty ++EP++

which shall accrue at a rate of $10,000 per month until Edison attains compliance with Part VIII.C.8.

Page 47

D. For each instance in which Edison fails to comply with any requirement of Part IX of this Consent Decree relating to storage and disposal of removed materials, Edison shall pay a stipulated penalty of $2,500 per day for each day that the violation continues.

E. For each instance in which Edison fails to physically remove any PCB capacitor installation from Edison's overhead power distribution system by January 1, 1987, as specified in Part V, above, Edison shall pay a stipulated penalty in the following amounts for each day that the violation continues:

PERIOD OF NONCOMPLIANCE PENALTY PER DAY 1st day to 30th day $500 31st day to 60th day $1,000 61st day to 120th day $2,500 Each day beyond 120th day $5,000

F. For each instance in which Edison fails to comply with any other requirement of this Consent Decree, Edison shall pay a stipulated penalty of $250 per day for each day of violation.

G. Notwithstanding any of the provisions in this Part XII, Edison shall not be liable for any stipulated penalties for its failure to perform any response actions at any site for which sampling is required by subpart VIII.C.1, provided that:

1. Edison has sampled such site in accordance with the requirements of Part VIII.C.1; ++EP++

Page 48

2. Edison has determined, in good faith, based on its own analytical results, that the subject site does not require further decontamination pursuant to Part VIII; and

3. Edison undertakes additional remedial action and completes decontamination of the site in accordance with Part VIII, above, within ninety (90) days after receiving U.S. EPA's analytical data showing that the site requires further decontamination pursuant to Part VIII.

H. Penalties incurred pursuant to Part XII of this Consent Decree shall be paid by certified check, payable to the "Treasurer, United States of America," tendered to the:

Regional Hearing Clerk (5C-16)

U.S. Environmental Protection Agency

230 South Dearborn Street

Chicago, Illinois 60604

H. Penalties paid pursuant to Part XII of this Consent Decree shall be in addition to, and shall not preclude the use of, any other remedies or sanctions which may be available to the United States by reason of any noncompliance by Edison with the provisions of this Consent Decree or with applicable law.

XIII. DISPUTE RESOLUTION

If any dispute arises between the parties with respect to the meaning, application, and interpretation of or compliance with this Consent Decree, including any attachments or appendices hereto, or any plan, list, certification or report required hereunder, the parties shall attempt to resolve such dispute through informal negotiation in the first instance. This provision shall apply to and govern all disputes concerning the extent to which ++EP++

site specific conditions or other circumstances render inappropriate any of the sampling or cleanup procedures set forth in the Exhibits attached to this Consent Decree, as well as any disagreements concerning the equivalency, effectiveness and representativeness of any alternative procedures adopted by Edison in such circumstances.

Page 49

In addition, the filing of a Certification of Completed Work by Edison pursuant to Part X.A, above, which indicates that Edison has not achieved any applicable standard of decontamination set forth in Part VI, above, at any site shall constitute a dispute within the meaning of this paragraph.

If the parties cannot resolve a dispute within thirty (30) days after receiving notice of the existence of the dispute, either party may, upon written notice to the opposing party, present the disputed issues to the Court for resolution. In any such dispute resolution proceeding, Edison shall bear the burden of proof, including, without limitation, the burden of proving (i) that site specific conditions or other circumstances warranted any variation from the procedures set forth in the Exhibits attached to this Consent Decree, (ii) that any alternative cleanup procedures employed by Edison are equivalent to and as effective as the procedures set forth in the attached Exhibits, (iii) that any alternative sampling procedures employed by Edison are representative of conditions at the subject site, and (iv) that any failure to attain any applicable standard of decontamination was the result of a reasonable, good faith misclassification of a Potential High Contact Area site as a Reduced Access site. ++EP++

Page 50

Nothing in this Consent Decree shall preclude the United States or U.S. EPA from initiating or taking any judicial or administrative action, after the expiration of the negotiating period prescribed above, to obtain any remedies available under law, including contempt, civil penalties and fines, to redress any noncompliance with this Consent Decree or with any applicable law.

In any proceeding in which U.S. EPA contends that Edison has failed to comply with any applicable standard of decontamination provided by this Consent Decree, U.S. EPA's sampling shall have been performed using sampling protocols that are substantially equivalent to those established in Parts VII and VIII above.

XIV. COMPLIANCE WITH OTHER LAW

Nothing herein shall be construed as relieving Edison of the duty to comply with all applicable federal, state, and local laws and regulations.

XV. COVENANT NOT TO SUE AND

RESERVATION OF RIGHTS

A. Provided that Edison complies with all requirements of this Consent Decree, and subject to the reservations of rights set forth below in this Part, the United States hereby covenants not to initiate or maintain any civil proceeding against Edison seeking further relief under TSCA to compel additional cleanup of PCBs at sites identified in Part IV.B of this Consent Decree. This covenant not to sue shall not apply to or affect any liability of Edison arising from or relating to any offsite storage or disposal of contaminated materials from any of the sites governed by this Consent Decree. ++EP++

Page 51

B. Notwithstanding any other provision of this Consent Decree, the United States hereby reserves the right to initiate and maintain proceedings against Edison seeking injunctive relief and penalties under TSCA relating to releases of PCBs from any substation capacitors or any transformers owned or operated by Edison. In addition, the United States reserves the right to initiate and maintain any proceeding against Edison relating to releases of polychlorinated dibenzofurans (PCDFs) from any electrical equipment owned or operated by Edison. The parties intend that all claims pertaining to substation releases, transformer releases and PCDF releases shall be preserved for subsequent proceedings, and THE COURT HEREBY DETERMINES THAT entry of this Consent Decree shall not operate to bar any future proceedings pertaining to such matters.

C. Nothing in this Consent Decree shall be construed to limit the ability of the United States to initiate and maintain any proceeding against Edison or to take any action authorized under applicable law to abate, prevent, or order the abatement of any condition which may present an imminent or substantial endangerment to health, welfare or the environment, or to expend and thereafter recover from any person or entity any monies in responding to any release of any hazardous substance.

XVI. PUBLIC NOTICE

The parties agree and acknowledge that final approval and entry of this proposed Consent Decree is subject to the requirements of 28 C.F. R. Section 50.7, which provides that notice of the proposed Consent Decree shall be given to the public and the public shall have at least thirty (30) days to submit any ++EP++ comments.

Page 52

Compliance with 28 C.F.R. Section 50.7 and the requirement for notice shall be by publication in the Federal Register by the Department of

Justice.

XVII. RETENTION OF JURISDICTION

The Court shall retain jurisdiction of this matter to enforce compliance with or modify the provisions of this Consent Decree.

XVIII. TERMINATION

The provisions of this Consent Decree shall terminate one hundred and eighty (180) days after the date that Edison meets all Cleanup Reporting Requirements set forth in Part X of this Decree, unless a dispute governed by Part XIII exists at that time, in which case the provisions of this Consent Decree shall terminate at the time the dispute is resolved. IN ACCORDANCE WITH THE CONSENT OF THE UNDERSIGNED PARTIES AND THEIR REPRESENTATIVES, IT IS SO ORDERED.

/s/ James B. Moran

JUDGE MORAN

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Date: 11/12/86

FOR DEFENDANT:

FOR PLAINTIFF:

/s/ Byron Lee Jr.

BYRON LEE, JR.

Executive Vice President

Commonwealth Edison Company

/s/ F Henry Habicht

F. HENRY HABICHT II

Assistant Attorney General

Land and Natural Resources Division

U.S. Department of Justice

10th and Pennsylvania Ave., N.W.

Washington, D.C. 20530 ++EP++

Page 53

/s/ A. Daniel Feldman/ABB

A. DANIEL FELDMAN, ESQ.

Isham, Lincoln & Beale

Three First National Plaza

Chicago, Illinois 60602

/s/ Steven J. Willey

STEVEN J. WILLEY, Attorney

Land and Natural Resources Division

U.S. Department of Justice

10th and Pennsylvania Ave., N.W.

Washington, D.C. 20530

/s/ (ILLEGIBLE)

ALAN P. BIELAWSKI, ESQ.

Isham, Lincoln & Beale

Three First National Plaza

Chicago, Illinois 60602

ANTON R. VALUKAS

United States Attorney

/s/ James P. White

JAMES P. WHITE

Assistant U.S. Attorney

Northern District of Illinois

219 South Dearborn Street

Chicago, Illinois 60604

/s/ Thomas L. Adams, Jr.

THOMAS L. ADAMS (ILLEGIBLE)

Assistant Administrator for Enforcement and

Compliance Monitoring

U.S. Environmental Protection Agency

401 M Street, S.W. Washington,

D.C. 20460

/s/ Michael J. Walker

MICHAEL J. WALKER

Attorney, Special Litigation Division

Office of Enforcement and Compliance Monitoring

U.S. Environmental Protection Agency

401 M Street, S.W. Washington,

D.C. 20460 ++EP++

Page 54

/s/ Valdas V. Adamkus

VALDAS V. ADAMKUS

Regional Administrator

U.S. Environmental Protection Agency, Region V

230 South Dearborn Street

Chicago, Illinois 60604

/s/ Sebastian J. Patti

SEBASTIAN PATTI

Assistant Regional Counsel

U.S. Environmental Protection Agency, Region V

230 South Dearborn Street

Chicago, Illinois 60604 ++EP++

COMMONWEALTH EDISON CO.

DOC 01 OF 02

COMPLAINT

05-86-C022

TSCA

ELECT

19861112

19840224

ILD006929509

COMMONWEALTH EDISON CO.

CHICAGO, IL

84 c 1597

05

ORIGINAL COMPLAINT IN U.S. v. COMMONWEALTH

EDISON CO.

Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Civil Action No.

Judge

UNITED STATES OF AMERICA, Plaintiff,

v.

THE COMMONWEALTH EDISON COMPANY, Defendant.

COMPLAINT

The United States of America, at the request of and on behalf of the Administrator of the United States Environmental Protection Agency (hereinafter referred to as "EPA"), alleges that:

1. This is a civil action for injunctive and declaratory relief against The Commonwealth Edison Company ("Edison" or "Commonwealth Edison") pursuant to Sections 7 and 17 of the Toxic Substances Control Act ("TSCA"), 15 U.S.C. Sub-Section 2606 and 2616, and pursuant to 28 U.S.C. Sub-Section 2201 and 2202. The United States seeks a judgment and order compelling Edison to clean up promptly and to dispose properly of all polychlorinated biphenyls ("PCBs") and any polychlorinated dibenzofurans ("PCDFs") that have been or are hereafter discharged from Edison's pole-mounted electrical equipment at numerous locations throughout northern Illinois, including the seven PCB spill sites identified below in this complaint.

JURISDICTION

2. This Court has jurisdiction over the subject matter ++EP++

of this action pursuant to 15 U.S.C. Sub-Section 2606 and 2616 and 28 U.S.C. Sub-Section 1331 (a), 1345 and 2201.

Page 2 VENUE

3. Venue is proper pursuant to 15 U.S.C. Sub-Section 2606(c) and 2616(a)(2)(A), and 28 U.S.C. Section 1319(b) and (c) because Commonwealth Edison is found, resides and transacts business in the Northern District of Illinois and because many of the acts, omissions or transactions constituting TSCA violations occurred within said district.

DEFENDANT

4. Defendant Commonwealth Edison Company is a for-profit investor-owned utility incorporated under the laws of Illinois and having its headquarters located at One First National Plaza, Chicago, Illinois.

GENERAL ALLEGATIONS

5. At all times relevant hereto, Edison has owned tens of thousands of capacitors which are situated on utility poles throughout northern Illinois. Over 40,000 of these capacitors have contained, and continue to contain, dielectric fluids having PCB concentrations in excess of 500 parts per million ("ppm"). Such capacitors are hereinafter sometimes referred to as "PCB capacitors."

6. At all times relevant hereto, Edison has owned an unknown number of transformers which are situated on utility poles throughout northern Illinois. Many of these transformers have contained, and continue to contain, dielectric fluids having ++EP++ PCB concentrations in excess of 500 ppm.

Page 3

Such transformers are hereinafter sometimes referred to as "PCB

transformers."

7. PCBs are toxic chemicals which are extremely stable and persistent in the environment. PCBs have been demonstrated to cause cancer, suppression of the immune system, liver damage, birth defects, impairment of reproductive capacity and other illnesses and injuries in laboratory animals. PCBs are also toxic to aquatic organisms, causing death, reduced growth, and impairment of reproductive capacity and other biological functions. PCBs are also toxic to humans, causing liver damage, adverse skin effects, and changes in other biological functions. PCBs are suspected of causing cancer in humans. PCBs bioaccumulate in humans and other organisms, which means that PCBs accumulate over time in living tissues in concentrations much higher than the concentrations to which the organisms are exposed in the environment.

8. PCDFs occur as contaminants of dielectric fluid in PCB capacitors, transformers and other electrical equipment. Experiments have shown that various PCDFs are produced when PCBs are heated in the presence of oxygen. PCDFs are highly toxic chemicals with toxic effects similar to polychlorinated dibenzo-p-dioxin ("dioxin"). In humans, PCDF exposure has been associated with low birth weight, retarded growth, abnormal lipid metabolism, liver disturbances, acneform eruptions, skin pigmentation and lesions in skin and mucuous membrane tissue. PCDFs are suspected carcinogens and teratogens and may alter the body's immune system. ++EP++

Page 4

9. Edison's PCB capacitors and PCB transformers are located, among other places, in residential neighborhoods, agricultural lands, along roadways and alleys and near lakes and streams throughout northern Illinois.

10. Based on information and belief, between sixty (60) and one hundred (100) of Edison's PCB capacitors routinely rupture or otherwise fail every year. When such ruptures or failures occur, dielectric fluids containing PCBs, and in some cases PCDFs, are discharged in an uncontrolled fashion into the environment. Rupturing capacitors can spray or disperse dielectric fluids containing PCBs and PCDFs in the environment.

11. An unknown number of Edison's PCB transformers rupture or otherwise fail every year. When such ruptures or failures occur, dielectric fluids containing PCBs, and in some cases PCDFs, are discharged in an uncontrolled fashion into the environment. Rupturing transformers can spray or disperse dielectric fluids containing PCBs and PCDFs in the environment.

12. Until sometime during the spring of 1983, Edison routinely used a "visible oil" standard in cleaning up discharges from its pole-mounted PCB capacitors and transformers. The objective of this standard was to affect removal of whatever PCB oil or fluid stains were in plain view. To date, Edison routinely has failed to sample and analyze soil or other materials from PCB spill sites in order to determine the effectiveness of whatever cleanup actions Edison had undertaken. ++EP++

Page 5

13. On numerous occasions Edison has failed promptly to conduct adequate cleanup operations in response to PCB discharges from its ruptured or damaged PCB electrical equipment. In several known instances, Edison has allowed PCB contamination levels of hundreds or even thousands of parts per million to remain on residential property for many months after discharges from PCB capacitors. In addition, Edison's cleanup practices routinely have failed to remove all PCB contamination resulting from such discharges.

14. In many instances cleanup operations conducted by Edison in response to discharges of PCBs and PCDFs from its PCB electrical equipment have been inadequate to eliminate unreasonable risks to health or the environment presented by such discharges.

FIRST CLAIM FOR RELIEF

15. The allegations contained in paragraphs 1 - 7 and 9 - 13 above are incorporated herein by reference as if set out in full in this claim for relief.

16. At all relevant times, Edison owned or operated a PCB capacitor which was situated on a utility pole in an alley behind two properties where the Benjamin Santori and Judith Weston families resided. Those properties are located at 17619 and 17625 Bernadine Street, Lansing, Illinois, respectively (hereinafter referred to as "the Santori and Weston properties").

17. During 1979, the capacitor referred to in the preceding paragraph ruptured, discharging PCBs in concentrations ++EP++

over 500 ppm into the environment and onto the Santori and Weston properties and the alley behind those properties.

Page 6

The areas contaminated by said PCB discharge were and are accessible to adults and children, as well as animals.

18. Edison employees, agents, contractors or representatives visited the Santori and Weston properties within one week after the discharge referred to in the preceding paragraph. However, Edison failed to remove any PCBs or PCB contaminated material at that time and for many months thereafter.

19. At all relevant times, Edison owned or operated a PCB capacitor which was situated on a utility pole in the alley behind the Santori and Weston properties. During the summer of 1981, said Edison PCB capacitor ruptured, discharging PCBs in concentrations over 50 ppm onto the Santori and Weston properties and the alley behind those properties.

20. After the discharge referred to in the preceding paragraph, Edison removed some PCB-contaminated material from the Santori and Weston properties and the alley behind the properties. However, Edison did not at that time remove all PCB contamination resulting from the discharges described in paragraphs 17 and 19 above.

21. During the summer of 1981 Mr. Ben Santori came into direct contact with PCBs while cleaning his garage. Mrs. Filomena Santori came into direct contact with PCBs while working in the Santori's contaminated yard. Within one week after the discharge of PCBs referred to in paragraph 19 above, Mrs. ++EP++ Santori developed, inter alia, a rash on her scalp and stomach.

Page 7

22. At all relevant times, Edison owned or operated a PCB capacitor which was situated on a utility pole in the alley behind the Santori and Weston properties. On or about September 1, 1982, said Edison PCB capacitor ruptured, discharging PCBs in concentrations over 50 ppm onto the Santori and Weston properties and the alley behind those properties.

23. Within one week after the discharge referred to in the preceding paragraph, Edison removed some PCB-contaminated materials from the Santori and Weston properties and the alley behind those properties. However, Edison did not at that time remove all PCB contamination which resulted from the discharges referred to in paragraphs 17, 19 and 22 above.

24. On or about October 20, 1982, a representative of EPA collected numerous samples of soil and sod from the Santori and Weston properties and alley behind those properties.

25. Laboratory analyses of the samples referred to in the preceding paragraph revealed that PCB contamination ranging between 38 ppm and 13,000 ppm remained on the Santori and Weston properties and in the alley behind those properties.

26. Laboratory analyses by Commonwealth Edison of split samples taken with EPA personnel on February 22, 1983, confirmed the continued presence of PCBs in concentrations ranging between 27 ppm and 246 ppm on the Weston property and the alley behind the Santori residence.

27. On or about May 12, 1983, representatives of Edison removed a PCB capacitor owned or operated by Edison from ++EP++

a utility pole located in an alley behind the Santori and Weston properties.

Page 8

28. During removal of the capacitor referred to in the preceding paragraph, PCBs in concentrations over 50 ppm spilled onto soil, grass, and new sod beneath the utility pole and onto the side of the Santori's garage.

29. At the time of the spill referred to in the preceding paragraph, none of Edison's representatives attempted to clean up any of the released PCBs.

30. Samples of visibly contaminated soil, grass, and fluid on or near the Santori's property were collected by an EPA inspector on about May 18, 1983. Laboratory analyses of these samples revealed that the presence of PCBs in concentrations ranging between 16 ppm and 5,600 ppm on the Santori and Weston properties and the alley behind those properties.

31. EPA promptly provided the results of the laboratory analyses referred to in the preceding paragraph to Edison attorneys.

32. Commonwealth Edison's spills, leaks or discharges of PCBs in regulated concentrations into the environment and onto the Santori and Weston properties and the alley behind the properties, as described in paragraphs 17, 19, 22 and 28 above, constitute improper disposal of PCBs in violation of Section 15 of TSCA, 26 U.S.C. Section 2614, and 40 C.F.R. Part 761 et seq.

33. Based on information and belief, Commonwealth Edison has not to date removed from the Santori and Weston properties and the alley behind those properties all of the PCB contamination ++EP++

resulting from the spills, leaks or discharges referred to in paragraphs 17, 19, 22 and 28 above.

Page 9

The PCB concentrations presently found on the Santori and Weston properties and the alley behind those properties are the diluted remains of the spills, leaks or discharges referred to in paragraphs 17, 19, 22 and 28.

34. Unless restrained by this Court pursuant to TSCA Section 17, 15 U.S.C. Section 2616, Commonwealth Edison will continue to violate TSCA Section 15, 15 U.S.C. Section 2614, and regulations promulgated pursuant to TSCA Section 6, 15 U.S.C. Section2605, by failing to remove from the Santori and Weston properties and the alley behind those properties all PCB contamination resulting from the spills, leaks or discharges referred to in paragraphs 17, 19, 22 and 28 above.

SECOND CLAIM FOR RELIEF

35. The allegations of paragraphs 1 - 14 and 16 - 31 and 33 above are incorporated herein by reference as if fully set out in this claim for relief.

36. Dielectric fluids from Edison's PCB capacitors constitute an "imminently hazardous chemical substance or mixture" within the meaning of Section 7 of TSCA, 15 U.S.C. Section 2606.

37. Discharges of dielectric fluids from Edison's PCB capacitors, transformers and other electrical equipment into the environment constitute disposal of PCBs, and in some cases, PCDFs. ++EP++

Page 10

38. The PCB contamination present on the Santori and Weston properties and the alley behind the properties as a result of Edison's discharges presents an unreasonable risk to health or the environment.

39. As the entity which disposed of dielectric fluids from its PCB capacitor on the Santori and Weston properties and the alley behind the properties, Commonwealth Edison is liable, pursuant to TSCA Section 7, 15 U.S.C. Section 2606, for taking such actions as may be necessary to protect health or the environment from the unreasonable risk associated with such disposal. Unless ordered to do so by this Court, Edison will not take further action necessary to protect health or the environment from such risk.

THIRD CLAIM FOR RELIEF

40. The allegations of paragraphs 1 - 7 and 9 - 13 above are incorporated herein by reference as if fully set out in this claim for relief.

41. At all relevant times, Edison owned or operated a PCB capacitor which was situated on a utility pole on or near premises at 6937 West 167th Street in Tinley Park, Illinois, where the Anna Schumacher family resided (hereinafter referred to as the "Schumacher property"). On or about June 10, 1978, said Edison PCB capacitor ruptured, discharging PCBs in concentrations over 500 ppm onto the the Schumacher property and members of the Schumacher family as described in paragraphs 42 - 47 below. The areas contaminated by said PCB discharge were and are accessible ++EP++

to adults and children, as well as animals.

Page 11

42. Dielectric fluid containing PCBs from the capacitor referred to in the preceding paragraph discharged directly onto Mrs. Anna Schumacher, covering her hair, neck and body. In the course of attempting to clean up dielectric fluid that discharged onto the Schumacher home from the Edison PCB capacitor referred to in the preceding paragraph, Mrs. Schumacher had additional direct dermal contact with PCBs. After said discharge of PCBs, Mrs. Schumacher developed, inter alia, a rash on her back and a recurring rash on her neck and scalp. Laboratory analysis of a blood sample taken from Anna Schumacher revealed the presence of PCBs in a concentration of 22.8 parts per billion ("ppb").

43. Mr. Herbert Schumacher and Daniel Schumacher had direct skin contact with PCBs which discharged from the capacitor referred to in paragraph 41 above. Laboratory analysis of a blood sample taken from Herbert Schumacher revealed the presence of PCBs in a concentration of 23.8 ppb.

44. PCBs from the Edison PCB capacitor referred to in paragraph 41 above discharged onto the side of the Schumacher's house. PCBs from said capacitor entered the Schumacher house through an open screen window, and contaminated the family television room, including a carpet, chair and couch located therein.

45. PCBs from the Edison capacitor referred to in paragraph 41 above discharged onto a truck, car and house trailer located on the Schumacher property.

46. A dog owned by the Schumachers came in direct contact with PCBs that had discharged onto the Schumacher property ++EP++ from the Edison PCB capacitor referred to in paragraph 41 above.

Page 12

Subsequently, the dog developed skin problems and cancer.

47. On October 20, 1982, EPA inspected the Schumacher property and took samples of materials found both indoors and out.

48. Laboratory analyses of certain of the samples referred to in the preceding paragraph revealed that PCB concentrations ranging from 2.1 ppm to 14 ppm remained in the Schumacher's television room, on the family's chair, couch and rug. Laboratory analyses also revealed PCB concentrations ranging from 10 to 11 ppm outside the Schumacher home. Laboratory analysis of the Schumacher's window screen detected the presence PCBs in a concentration of 18 ppm.

49. Commonwealth Edison made no effort to remove any PCB contaminated materials from the interior of the Schumacher home until February of 1983. To date, Edison has not removed all PCBs and PCB contaminated material from the Schumacher property.

50. The PCBs presently found on the Schumacher property are the diluted remains of the discharge referred to in paragraph 41 above.

51. The PCB discharge referred to in paragraph 41 above constitutes improper disposal of PCBs in violation of TSCA Section 15, 15 U.S.C. Section 2614, and 40 C.F.R. Part 761 et seq.

52. Unless restrained by this Court pursuant to TSCA Section 17, 15 U.S.C. Section 2616, Commonwealth Edison will continue to violate TSCA Section 15, 15 U.S.C. Section 2614, and regulations ++EP++ promulgated pursuant to TSCA Section 6, 15 U.S.C. Section 2605, by failing to remove from the Schumacher property all PCB contamination resulting from the discharge referred to in paragraph 41 above.

Page 13 FOURTH CLAIM FOR RELIEF

53. The allegations of paragraphs 1 - 14, 36 - 37 and 41 - 50 above are incorporated herein by reference as if set out in full in this claim for relief.

54. The PCB contamination present on the Schumacher property as a result of Edison's capacitor discharges presents an unreasonable risk to health or the environment.

55. As the entity which disposed of dielectric fluids from its PCB capacitor on the Schumacher property, Commonwealth Edison is liable, pursuant to TSCA Section 7, 15 U.S.C. Section 2606, for taking such actions as may be necessary to protect health and the environment from the unreasonable risk associated with such disposal. Unless ordered to do so by this Court, Edison will not take further actions necessary to protect health or the environment from such risk.

FIFTH CLAIM FOR RELIEF

56. The allegations of paragraphs 1 - 7 and 9 - 13 above are incorporated herein by reference as if fully set out in this claim for relief.

57. At all relevant times, Edison owned or operated a PCB capacitor which was situated on a utility pole in the alley behind the residence of Mrs. Helen Finney at 2537 Bernard Street, Chicago, Illinois (hereinafter referred to as the "Finney ++EP++ property").

Page 14

On or about March 21, 1983, said PCB capacitor ruptured, discharging PCBs in concentrations over 50 ppm onto the Finney property, including Mrs. Finney's garden, fruit tree, lawn, garage and fencing, as well as onto the alley behind the Finney property. The areas contaminated with PCBs from said discharge were and are accessible to

adults and children, as well as animals.

58. Shortly after the discharge referred to in the preceding paragraph, Mrs. Finney had direct contact with PCBs from such discharge and with contaminated soil on the Finney property.

59. Shortly after the discharge referred to in paragraph 57 above, Edison removed some PCB-contaminated materials from the Finney property and the alley behind the property. However, Edison did not at that time remove all PCB contamination which resulted from said discharge.

60. Except for the removal of a small pile of brush, Commonwealth Edison had completed its cleanup of PCB-contaminated materials on the Finney property and the alley behind the property prior to April 7, 1983.

61. On April 7, 1983, EPA took ten samples of soil, debris, tree branches, fencing and other materials from the Finney property and the alley behind the property.

62. Laboratory analyses revealed PCB concentrations ranging from 8.2 ppm to 33,520 ppm in nine of the samples referred to in the preceding paragraph. Said PCB concentrations are the ++EP++

diluted remains of the discharge referred to in paragraph 57 above.

Page 15

63. EPA promptly provided the results of the laboratory analyses referred to in the preceding paragraph to Edison.

64. Based on information and belief, Edison has not to date removed all PCB contamination which resulted from the capacitor rupture referred to in paragraph 57 above.

65. The discharge of PCBs referred to in paragraph 57 above constitutes improper disposal of PCBs in violation of TSCA Section 15, 15 U.S.C. Section 2614, and 40 C.F.R. Part 761 et seq.

66. Unless restrained by this Court pursuant to TSCA Section 17, 15 U.S.C. Section 2616, Commonwealth Edison will continue to violate TSCA Section 15, 15 U.S.C. Section 2614, and regulations promulgated pursuant to TSCA Section 6, 15 U.S.C. Section 2605, by failing to remove from the Finney property and the alley behind the property all PCB contamination resulting from the discharge referred to in paragraph 57 above.

SIXTH CLAIM FOR RELIEF

67. The allegations of paragraphs 1 - 14, 36 - 37 and 57 - 64 above are incorporated herein by reference as if set out in full in this claim for relief.

68. Laboratory analysis of a sample of PCB contaminated soil from the Finney property revealed the presence of PCDFs in concentrations ranging from 1.7 to 8.1 parts per billion (ppb).

69. The PCB and PCDF contamination present on the ++EP++

Finney property as a result of Edison's capacitor discharges presents an unreasonable risk to health or the environment.

Page 16

70. As the entity which disposed of dielectric fluids from its PCB capacitor on the Finney property and the alley behind the property, Commonwealth Edison is liable, pursuant to TSCA Section 7, 15 U.S.C. Section 2606, for taking such actions as may be necessary to protect health or the environment from the unreasonable risk associated with such disposal. Unless ordered to do so by this Court, Edison will not take further action necessary to protect health or the environment from such risk.

SEVENTH CLAIM FOR RELIEF

71. The allegations of paragraphs 1 - 7 and 9 - 13 above are incorporated herein by reference as if fully set out in this claim for relief.

72. At all relevant times, Edison owned or operated a PCB capacitor which was situated on a utility pole on or near properties where the Pelino and Schemper families resided. Those properties are located at 1119 and 1125 East 166th Street, South Holland, Illinois respectively (hereinafter referred to as the "Pelino and Schemper properties").

73. During February, 1983, pieces from inside the Edison PCB capacitor referred to in the preceding paragraph fell to the ground, discharging PCBs in concentrations over 50 ppm onto the Pelino and Schemper properties as well as onto the street. The areas contaminated by said discharge were, and are, accessible to adults and children, as well as animals. ++EP++

Page 17

74. Mrs. Pelino notified Commonwealth Edison by telephone call of the presence of the dislodged capacitor pieces on the Pelino property. During this phone call, an Edison representative asked Mrs. Pelino to describe the dislodged material. Commonwealth Edison's representative then suggested that Mrs. Pelino remove and dispose of the material herself by depositing it in her trash. Mrs. Pelino rejected this suggestion and asked Edison to remove the capacitor material.

75. No Commonwealth Edison representative ever removed the fallen PCB capacitor material from the Pelino property. Approximately two weeks after pieces from the PCB capacitor referred to in paragraph 72 above fell on the Pelino property, the capacitor pieces were removed by persons unknown. None of the visible contamination or PCB fluid soaked shreddings was removed from the Pelino property, adjacent properties or the street at that time.

76. In response to a request by Mrs. Pelino, Edison sent a representative out to examine the Pelino property on or about April 22, 1983. Edison's representative failed to perform any cleanup of PCBs or PCB-contaminated material on the Pelino property at that time.

77. In response to a phone call from Mr. Pelino, Edison again sent a representative to examine the Pelino property on or about April 25, 1983. On this occasion Edison's representatives initiated a cleanup of some of contaminated material At some time between April 25 and May 4, 1983, Edison terminated its cleanup of the Pelino property and began to relandscape the ++EP++

area.

Page 18

78. On May 5, 1983, EPA personnel inspected the Pelino and Schemper properties and collected numerous samples of soil and other materials from the properties.

79. Laboratory analyses of the samples referred to in the preceding paragraph revealed the continued presence of PCBs in concentrations ranging between 35 ppm and 1960 ppm on the Pelino and Schemper properties.

80. EPA promptly informed Edison representatives of the continued presence of PCBs on the Pelino and Schemper properties. EPA provided Edison with specific details regarding the locations and concentrations of such PCB contamination. EPA personnel requested that Edison remove from the Pelino, Schemper and adjacent properties all PCB contamination resulting from the discharge referred to in paragraph 73 above.

81. Based on information and belief, Commonwealth Edison has not to date removed from the Pelino and Schemper properties all of the PCB contamination resulting from the discharge referred to in paragraph 73 above.

82. The discharge of PCBs referred to in paragraph 73 above constitutes an improper disposal of PCBs by Edison in violation of TSCA Section 15, 15 U.S.C. Section 2614, and 40 C.F.R. Part 761 et seq.

83. Unless restrained by this Court pursuant to TSCA Section 17, 15 U.S.C. Section 2616, Commonwealth Edison will continue to violate TSCA Section 15, 15 U.S.C. Section 2614, and regulations promulgated pursuant to TSCA Section 6, 15 U.S.C. Section 2605, by failing to remove from ++EP++ the Pelino and Schemper properties all PCB contamination resulting from the discharge referred to in paragraph 73 above.

Page 19 EIGHTH CLAIM FOR RELIEF

84. The allegations of paragraphs 1 - 14, 36 - 37 and 72 - 81 above are incorporated herein by reference as if fully set out in this claim for relief.

85. The PCB contamination present on the Pelino and Schemper properties as a result of Edison's discharge referred to in paragraph 73 above presents an unreasonable risk to health or the environment.

86. As the entity which disposed of dielectric fluids from its PCB capacitor on the Pelino and Schemper properties, Commonwealth Edison is liable, pursuant to TSCA Section 7, 15 U.S.C. Section 2606, for taking such actions as may be necessary to protect health and the environment from the unreasonable risk associated with such disposal. Unless ordered to do so by this Court, Commonwealth Edison will not take further actions necessary to protect health or the environment from such risk.

NINTH CLAIM FOR RELIEF

87. The allegations of paragraphs 1 - 7 and 9 - 13 above are incorporated herein by reference as if fully set out in this claim for relief.

88. At all relevant times, Edison owned or operated a PCB capacitor which was situated on a utility pole on or near residential premises at 159 North Main Street, Glen Ellyn, Illinois (hereinafter referred to as "the Glen Ellyn site"). On or about ++EP++

May 12, 1983, said PCB capacitor ruptured, discharging PCBs in concentrations over 50 ppm into the environment.

Page 20

89. At some time prior to July 27, 1983, Edison removed from the Glen Ellyn site some PCB contamination caused by the capacitor discharge referred to in the preceding paragraph. However, Edison did not at that time remove all of the PCB contamination which resulted from said discharge.

90. On July 26, 1983, an EPA representative took samples of soil and wood from the Glen Ellyn site.

91. Laboratory analyses of the samples referred to in the preceding paragraph revealed the presence of PCBs at the Glen Ellyn site in concentrations ranging from 2,910 ppm to 25,000 ppm.

92. The discharge of PCBs referred to in paragraph 88 above constitutes improper disposal of PCBs in violation of TSCA Section 15, 15 U.S.C. Section 2614, and 40 C.F.R. Part 761 et seq.

93. Based on information and belief, Commonwealth Edison has not to date removed from the Glen Ellyn site all of the PCB contamination resulting from the discharge referred to in paragraph 88 above.

94. Unless restrained by this Court pursuant to TSCA Section 17, 15 U.S.C. Section 2616, Commonwealth Edison will continue to violate TSCA Section 15, 15 U.S.C. Section 2614, and regulations promulgated pursuant to TSCA Section 6, 15 U.S.C. Section 2605, by failing to remove from the Glen Ellyn site all PCB contamination resulting from the discharge referred to in paragraph 88 above. ++EP++

Page 21 TENTH CLAIM FOR RELIEF

95. The allegations of paragraphs 1 - 14, 36 - 37, 88 - 91 and 93 above are incorporated herein by reference as if fully set out in this claim for relief.

96. The PCB contamination present on the Glen Ellyn site as a result of Edison's capacitor discharge referred to in paragraph 88 above presents an unreasonable risk to health or the environment.

97. As the entity which disposed of dielectric fluids from its PCB capacitor on the Glen Ellyn site, Commonwealth Edison is liable, pursuant to TSCA Section 7, 15 U.S.C. Section 2606, for taking such actions as may be necessary to protect health or the environment from the unreasonable risk associated with such disposal. Unless ordered to do so by this Court, Edison will not take further actions necessary to protect health or the environment from such risk.

ELEVENTH CLAIM FOR RELIEF

98. The allegations of paragraphs 1 - 7 and 9 - 13 above are incorporated herein by reference as if fully set out in this claim for relief.

99. At all relevant times, Edison owned or operated a PCB capacitor which was situated on a utility pole adjacent to a cornfield on the north side of Black Road between Madison and Ann Streets, Joliet, Illinois (hereinafter referred to as "the Joliet site"). On or about July 5, 1983, said PCB capacitor ruptured, discharging PCBs in concentrations over 50 ppm into the environment ++EP++

and onto soil at the Joliet site.

Page 22

100. At some time prior to September 9, 1983, Edison removed some PCB-contaminated soil from the Joliet site. However, Edison did not at that time remove all PCB contamination resulting from the discharge referred to in the preceeding paragraph.

101. On September 9, 1983, EPA took samples of soil, grass and wood from the Joliet site.

102. Laboratory analyses of the samples described in the preceeding paragraph revealed the presence of PCBs in a concentration of 4,520 ppm at the Joliet site.

103. Based on information and belief, Edison has not to date removed from the Joliet site all of the PCB contamination resulting from the discharge referred to in paragraph 99 above.

104. The discharge of PCBs referred to in paragraph 99 above constitutes improper disposal of PCBs in violation of TSCA Section 15, 15 U.S.C. Section 2614, and 40 C.F.R. Part 761 et seq.

105. Unless restrained by this Court pursuant to TSCA Section 17, 15 U.S.C. Section 2616, Commonwealth Edison will continue to violate TSCA Section 15, 15 U.S.C. Section 2614, and regulations promulgated pursuant to TSCA Section 6, 15 U.S.C. Section 2605, by failing to remove from the Joliet site all PCB contamination resulting from the discharge referred to in paragraph 99 above.

TWELFTH CLAIM FOR RELIEF

106. The allegations of paragraphs 1 - 14, 36 - 37 and 99 - 103 above are incorporated herein by reference as if fully ++EP++

set out in this claim for relief.

Page 23

107. The PCB contamination present on the Joliet site as a result of the capacitor discharge referred to in paragraph 99 above presents an unreasonable risk to health or the environment.

108. As the entity which disposed of dielectric fluids from its PCB capacitors on the Joliet site, Commonwealth Edison is liable, pursuant to TSCA Section 7, 15 U.S.C. Section 2606, for taking such actions as may be necessary to protect health and the environment from the unreasonable risk associated with such disposal. Unless ordered to do so by this Court, Edison will not take further actions necessary to protect health or the environment from such risk.

THIRTEENTH CLAIM FOR RELIEF

109. The allegations of paragraphs 1 - 7 and 9 - 13 above are incorporated herein by reference as if fully set forth in this claim for relief.

110. At all relevant times, Edison owned or operated a PCB capacitor which was situated on a utility pole on or near residential premises at 826 East Benton Street, Aurora, Illinois (hereinafter referred to as the Aurora site"). On or about July 12, 1983, said Edison PCB capacitor ruptured, discharging PCBs in concentrations over 50 ppm into the environment and onto soil at the Aurora site.

111. At some time prior to September 8, 1983, Edison removed some of the PCB contamination resulting from the discharge referred to in the preceding paragraph. However, Edison failed ++EP++

at that time to remove all PCB contamination resulting from said discharge.

Page 24

112. On September 8, 1983, EPA took samples of soil and wood from the Aurora site.

113. Laboratory analyses of the samples referred to in the preceding paragraph revealed the presence of PCBs in concentrations ranging from 27 to 470 ppm at the Aurora site.

114. The discharge of PCBs referred to in paragraph 110 above constitutes improper disposal of PCBs in violation of TSCA Section 15, 15 U.S.C. Section 2614, and 40 C.F.R. Part 761 et seq.

115. Based on information and belief, Edison has not to date removed from the Aurora site the PCB contamination resulting from the discharge referred to in paragraph 110 above.

116. Unless restrained by this Court pursuant to TSCA Section 17, 15 U.S.C. Section 2616, Commonwealth Edison will continue to violate TSCA Section 15, 15 U.S.C. Section 2614, and regulations promulgated pursuant to TSCA Section 6, 15 U.S.C. Section 2605, by failing to remove from the Aurora site all PCB contamination resulting from the discharge referred to in paragraph 110 above.

FOURTEENTH CLAIM FOR RELIEF

117. The allegations of paragraphs 1 - 14, 36 - 37, 110 - 113 and 115 above are incorporated herein by reference as if fully set out in this claim for relief.

118. The PCB contamination present on the Aurora site as a result of the capacitor discharge referred to in paragraph 110 ++EP++ above presents an unreasonable risk to health or the environment.

Page 25

119. As the entity which disposed of dielectric fluids from its PCB capacitor on the Aurora site, Commonwealth Edison is liable, pursuant to TSCA Section 7, 15 U.S.C. Section 2606, for taking such actions as may be necessary to protect health and the environment from the unreasonable risk associated with such disposal. Unless ordered to do so by this Court, Edison will not take further actions necessary to protect health or the environment from such risk.

WHEREFORE, Plaintiff, United States of America, prays that this Court -

(A) Order Commonwealth Edison to:

1. Submit promptly to EPA a list describing all known or suspected discharges of dielectric fluids from Edison's PCB capacitors, transformers and other electrical equipment;

2. Initiate a program of representative sampling and laboratory analysis approved by EPA to evaluate the extent of PCB and PCDF contamination resulting from each discharge described in claims 1 - 14 of this complaint and each dischage listed pursuant to paragraph 1 of this prayer;

3. Provide written results of each analysis conducted pursuant to the preceding paragraph to EPA and to the owner and occupant of any affected property, together with a map correlating the location, depth and analytical results of each sample; ++EP++

Page 26

4. Implement the following cleanup and remedial measures at each location referred to in claims for relief 1 - 14 of this complaint and at each location affected by any discharge listed pursuant to paragraph 1 of this prayer, whenever any laboratory analysis indicates the presence of PCBs and/or PCDFs:

(a) take all steps necessary to prevent or minimize exposure of humans (including cleanup and removal workers) and animals to PCBs and/or PCDFs;

(b) implement any measures necessary to prevent transport of PCBs or PCDFs into streams, other surface water bodies, or sewers, or into uncontaminated soil areas or layers,

(c) promptly complete removal of PCBs, PCB contaminated material and/or PCDFs to the satisfaction of EPA; and

(d) relandscape all areas where cleanup and removal efforts have been undertaken pursuant to this paragraph, as necessary to return such areas to substantially the same conditions that prevailed prior to such cleanup and removal efforts;

5. Allow EPA representatives access to each location affected by any discharge listed pursuant to paragraph 1 of this prayer;

6. Pay all costs of this action;

(B) Declare that Commonwealth Edison has a duty to remove all PCB and PCDF contamination resulting from any future discharges of dielectric fluids from Edison PCB capacitors, transformers and other PCB electrical equipment in accordance with the requirements set forth in part A of this prayer; and ++EP++

Page 27

(C) Provide such other relief as justice may require.

Respectfully submitted,

/s/ F. Henry Habicht

F. HENRY HABICHT, II

Assistant Attorney General

Land and Natural Resources Division

GREGORY C. JONES

First Assistant

United States Attorney for the Northern District

of Illinois

/s/ Elizabeth Stein

ELIZABETH STEIN

Assistant United States Attorney

219 S. Dearborn St.

Chicago, Illinois 60091

(312) 353-1414

OF COUNSEL:

SEBASTIAN PATTI

Assistant Regional Counsel

/s/ Steven J. Willey

STEVEN J. WILLEY

Attorney, Environmental Enforcement Section

Land and Natural Resources Division

U.S. Department of Justice

10th Street & Pennsylvania Ave., N.W.

Room 1257

Washington, D.C. 20530

(202) 633-5415

ROBERT M. ANDERSEN

Chief, Water, Toxics & General Law Branch

U.S. EPA, Region V

JOEL C. MANDELMAN

Acting Assistant Enforcement Counsel for Toxic

Substances ++EP++

HYMAN FRIEDMAN (KIMRO)

DOC 01 OF 01

CONSENT DECREE

05-85-C003

TSCA

OTHER

19850416

19850416

MND980904585

KIMRO INC.

ST. LOUIS PARK, MN

3-84-453

05

CONSENT DECREE FOR U.S. v. HYMAN FRIEDMAN, AAA

FUEL OIL CO., KIMRO, INC., ZENITH OIL CO.

Page 1 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Civil No. 3-84-453

UNITED STATES OF AMERICA, Plaintiff,

v.

HYMAN FRIEDMAN, AAA FUEL OIL COMPANY, KIMRO, INC., ZENITH OIL COMPANY, Defendants.

CONSENT ORDER

Pursuant to the joint motion of Plaintiff, United States of America and Defendants, Hyman Friedman, AAA Fuel Oil Company, Kimro, Inc., and Zenith Oil Company, (hereinafter "Kimro"), and before the taking of any testimony, and without any admission or denial of the violations alleged in the complaint filed in April 6, 1984, it is hereby ORDERED, ADJUDGED, and DECREED:

I. JURISDICTION

This Court has jurisdiction of the subject matter herein and of the parties consenting hereto for the purpose of entering this Decree pursuant to 15 U.S.C. Sub-Section 2606 and 2616; 28 U.S.C. Section 1331; and 28 U.S.C. Sub-Section 2201 and 2202. The Complaint states a claim upon which relief can be granted. Venue is proper pursuant to 28 U.S.C. Section 1391(b) because the claims herein arose in this District. ++EP++

Page 2 II APPLICABILITY

The provisions of this Consent Order shall apply to and be binding upon the parties to this action, their officers, directors, employees, truck drivers, successors in interest and agents. Defendants shall give written notice of this Consent Order to any successors in interest prior to transfer of interest in companies or assets, and shall simultaneously verify to the United States Environmental Protection Agency (U.S. EPA), Region V, Office of Regional Counsel, and the United States Attorney for the District of Minnesota that such notice has been given. The Defendants shall not raise, as a defense to any enforcement action taken pursuant to this Order, the failure by any of their agents, servants or employees to take such action as shall be required to comply with the provisions of this Order.

Defendants further agree to immediately provide all employees, servants, agents, truck drivers, and independent contractors, a full and complete copy of this Order. This requirement of disclosure shall apply to all new employees, servants, agents, drivers, and independent contractors as well for the duration of this Order. Defendants shall certify in writing that this requirement has been met on a continuing basis, indicating the persons to whom notice has been given.

For the purpose of this Consent Order, "agents" shall be defined as any person acting in any capacity in the interest of defendants or at the behest or direction of Defendants. ++EP++

Page 3

In recognition that Defendant's drivers might act as independent contractors some of the time, and at other times, as agents under Defendant's direction, the definition of "agent" is intended to address those times, if any, which the independent contractors act under Defendant's direction.

III. PUBLIC INTEREST

The parties agree and the Court finds that settlement of these matters without further litigation is in the public interest and that the entry of this Consent Order is the most appropriate means of resolving these matters.

IV. AGREED FINDINGS OF FACT

A. Defendant Hyman Friedman owns and operates, contracts, leases equipment to or with the following company names: AAA Fuel Oil Company; Kimro, Inc.; and Zenith Oil Company. The equipment and products owned by Defendants include:

Contents on Date of Description Capacity Inspection Gulf Trailer (ST82466) 6,700 2700 gal. crankcase oil Butler Trailer (MDR1701) 8,600 2,700 gal. industrial oil 3 compartments 1,100 gal. drain oil Pup Trailer (ST82467) 7,700 3,800 gal. drain oil 3 compartments AAA Oil Co. (MDR) 2,200 gal. fuel oil Empty Fuel Truck (ST84477) fuel oil ++EP++ Page 4

Contents on

Date of Description Capacity Inspection Red Tanker (MDR1464) fuel oil insulated Tanker (MDR1595) fuel oil insulated Empty Fuel Truck (ST81086) fuel oil 2 Waste Oil Drums 55 gal. water and oil mix

B. Defendant Hyman Friedman operates one or more businesses which buy waste and pure fuel oil and at times, blends together the two types of oil for resale.

C. On February 28, 1984, Richard Kable, Leader of the Emergency Response Team in the Division of Water Quality, Minnesota Pollution Control Agency, took two samples of oil from one of Defendants' trucks, license number YM69812. The samples were analyzed by the Minnesota Department of Health.

D. On March 30, 1984, Sheldon Simon telephoned Hyman Friedman, and informed him of the results of the samples taken on February 28, 1984, and requested that records be sent to the U.S. EPA.

E. On April 3, 1984, a copy of the Notice of Noncompliance was hand delivered to Hyman Friedman.

F. On April 4, 1984, the Notice of Non-compliance was mailed to Hyman Friedman informing him of the results of the February 28, 1984, samples taken by Richard Kable.

G. A Complaint for Injunctive Relief and an Application for Temporary Restraining Order were filed on April 6, 1984, by the United States Attorney to require PCB analyses and U.S. EPA clearance of all oil sold by Defendants. ++EP++

Page 5

H. In a hearing for a Temporary Restraining Order, on April 6, 1984, Defendants' Counsel represented to the Court that the truck load of oil referenced in IV.C. above was still within the custody and control of Hyman Friedman.

I. On April 6, 1984, a Temporary Restraining Order was entered requiring Defendants to sample and test for PCB content each truckload of oil received for delivery to its customers, to handle any truckload found to contain PCBs in accordance with 15 U.S.C. Section 2605(e), and to permit inspection and copying of relevant records.

J. The oil contained in tanker truck license number YM 69812 referenced in paragraph IV.C. is no longer within Defendants custody and control

K. The truck referred to in paragraph IV.C was not marked with the PCB mark ML, at the time of the aforementioned sampling on February 28, 1984.

L. On April 20, 1984, a Stipulated Interim Court Order was entered by Judge Paul Magnuson requiring compliance with Toxic Substances Control Act (TSCA), 15 U.S.C. Section 2601 et seq. In addition, the Interim Order required: sampling to be done for every oil delivery by Defendant; recordkeeping of purchases and sales of oil and regular reporting; proper disposal and cleanup of PCBs; a submission to Defendants of an analysis of every load of waste oil accepted from 4 particular distributors; allowing U.S. EPA and Minnesota Pollution Control Agency (MPCA) to inspect and sample Defendants trucks and oil. ++EP++

Page 6

M. Defendants agreed to implement a program of compliance with TSCA upon receiving PCB laden oil, and to recordkeeping, reporting and testing of certain oil prior to accepting delivery.

V. COMPLIANCE

A. Defendants shall maintain compliance with TSCA, 15 U.S.C. Section 2601, et seq., and the requirements of 40 C.F.R. Part 761.

B. In order to ensure compliance with TSCA, and with this Consent Order, Defendants shall not accept, purchase, store, sell or resell oil which contain any detectable concentration of PCB.

C. To ensure compliance with TSCA and its regulations, defendants commit to the following compliance program:

1. INSPECTIONS

a. The Defendants shall permit the United States Environmental Protection Agency, its authorized repesentatives and the Minnesota Pollution Control Agency either separately or jointly to inspect any property or premises of the Defendants' including equipment, trucks, records, soil, truck tanks, storage tanks, or trailers for the purpose of carrying out any inspections, reviewing and/or copying any records, observing tests and the taking of samples, and conducting tests and taking samples in order to ensure that the purposes of this Consent Order are effectuated.

b. Said inspections, observations, sampling, and review may be performed at any time either on or off Defendants' premises and with or without notice. ++EP++

Page 7

2. PCB DISPOSAL AND CLEANUP OF Defendants' TRUCKS AND EQUIPMENT

a. Defendants shall mark, and dispose of any PCB oil or other PCB material in accordance with 40 C.F.R. Part 761. Defendants shall decontaminate trucks or storage tanks containing any PCBs according to EPA procedures set forth at 40 C.F.R. Part 761 at the Defendants' expense within the time period to be specified by EPA upon discovery of contamination. Defendants do not waive the right to contest the findings of EPA regarding PCB content of Defendants' oil products before this Court. Until resolution of any question raised, the Defendants shall store, mark, and maintain records of the shipment or shipments in question in accordance with the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq. and the requirements of 40 C.F.R. Section 761 et seq.

3. PRE-DELIVERY TESTING

a. Prior to accepting loads of waste or drain oil from any person, company, entity, or independant contractor, with the exception of gasoline stations, an analysis for total PCB content must be performed for each load received.

b. Should Defendants inadvertantly accept an oil load which contains PCBs, and upon receiving an analysis showing detectable PCB concentrations, Defendants shall immediately and properly mark, and dispose of the PCB oil and PCB contaminated items in accordance with TSCA, 15 U.S.C. Section 2610 et seq. Defendants shall notify U.S. EPA immediately of the receipt of any shipment of oil containing any PCB's to Defendants or the receipt of any oil analysis indicating the presence of PCB.

4. RECORDKEEPING AND REPORTING

Beginning with the date of entry of this Consent Order, Defendants shall submit to the ++EP++ PCB Coordinator, Toxics Substances Branch U. S. EPA, Mail Code 5HT-16, 230 South Dearborn Street, Chicago, Illinois 60604 by U.S. Mail the following information for every 2 month period:

Page 8

a. A copy of all PCB analyses performed as required in Section V.C. (3)(a) above.

b. A log of each and every purchase of waste, drain, and fuel oil, or any combination thereof, obtained by Defendants including the following information:

(1) Date of purchase or receipt of oil product;

(2) Persons, company or entity and their address from whom purchased or received (this is intended to require Defendants to provide the name of the person, company, or entity from whom Defendants, their employees, or agents purchased or received the above-described oil products);

(3) Agent or driver purchasing or receiving the above-described oil products for the Defendants;

(4) Serial numbers of the truck and tank, if any, selling or delivering oil to Defendants;

(5)Serial number of the truck and tank accepting the oil; and

(6) Amount of oil products purchased or received.

c. A log of each and every delivery of waste, drain and fuel oil, or any combination thereof, including the following information:

(1) Date of delivery;

(2) Persons, company or entity and the address to whom the delivery was made;

(3) Agent or driver making the delivery; ++EP++

Page 9

(4) Serial number of the truck and tank making the delivery;

(5) Amount delivered; and

(6) Copy of any receipts for delivery.

d. The records required at V.C. (4)(b) and (c) are to be organized by dates of purchase and delivery.

e. The records required at V.C.(4)(a)-(d) shall be submitted to U.S. EPA not later than five days after the close of each 2 month reporting period.

VI. STIPULATED PENALTY

a. Upon the failure to comply with Sections V.B., V.C.2.a., or V.C.3.a. of this Order, a penalty of $3000.00 shall be paid by Defendants.

a. Upon failure to comply with the remaining requirements of this Order, Defendants shall pay the sum of $1,000.00 per day per violation until each violation is remedied.

b. Defendants' liability for, and payment of stipulated penalties shall not be construed to limit any other remedies available to the United States for violation of this Order or any other applicable laws or regulations.

c. Penalties due the United States shall be paid by mailing a certified check by certified mail to the Regional Hearing Clerk, Office of Regional Counsel, U.S. Environmental Protection Agency, 230 South Dearborn Street, Chicago, Illinois 60604. The check shall be made out to the order of "Treasurer of the United States of America" and sent within thirty (30) days after written demand is made by the U.S. Environmental Protection Agency.

d. Any attorneys fees incurred by the Plaintiff to enforce the terms of this Order shall be paid by the Defendants. ++EP++

Page 10 VII. COMPLIANCE WITH OTHER LAWS AND REGULATIONS

A. Compliance with the terms of this Consent Order does not affect Defendants' obligation to comply with all applicable requirements of TSCA and regulations promulgated thereunder for all Defendants' facilities including any not addressed by this Judgment Order. Defendants are required to comply with the requirements of other applicable Federal, State or local laws, regulations and ordinances including the Resource Conservation Recovery Act.

VIII. DISPUTE RESOLUTION

Any dispute which arises with respect to the meaning, application, and interpretation of, or compliance with, this Order and its terms, or any report required thereunder, shall in the first instance be the subject of informal negotiation in good faith between the parties hereto. Neither of the parties hereto shall take any action to formally enforce this Order in regard to such dispute until at least seven (7) calendar days from the date of receipt of written notice to the party against or in regard to whom such action is sought regarding the nature of and proposed resolution of the dispute. Both parties hereto agree to promptly negotiate in good faith with the other party in regard to any dispute following receipt of written notice of such dispute. In the absence of such an agreement, either party may submit the matter to the Court for resolution. ++EP++

Page 11

Nothing in this section of the Order shall preclude the United States or the U.S. EPA from seeking contempt action, penalties, or from taking any other appropriate and reasonable judicial or administrative action after the informal negotiation in good faith described above in any dispute involving alleged non-compliance with this Order.

Nothing in this section of the Order shall preclude the United States or the U.S. EPA from seeking injunctive relief in the form of a Temporary Restraining Order upon a finding by the U.S. EPA of an unreasonable risk of injury to health or the environment or pursuant to Section 17 of TSCA, 15 U.S.C. 2616.

IX. MODIFICATION

It is the intent of the parties that this Consent Order shall be modified in writing only by application to the Court and subsequent approval by the Court. U.S. EPA reserves the right to impose more stringent requirements on Defendants by reason of any revised State or federal law, statute or regulation. Defendants reserve the right to move for modification of this Order before the Court in the event that less stringent requirements come into effect by reason of any revised State of federal law, statute or regulation.

X. SEVERABILITY

It is the intent of the parties hereto that the provisions of this Consent Order shall be severable, and should any provisions be declared by a Court of competent jurisdiction to ++EP++

be inconsistent with State and Federal law, and therefore unenforceable, the remaining clauses shall remain in full force and effect.

Page 12 XI. PUBLIC COMMENT

The parties agree and acknowledge that final approval and entry of this proposed Consent Order is subject to the requirements of 28 C.F.R. Section 50.7. That regulation provides that notice of the proposed Order be given to the public and that the public shall have at least thirty (30) days to make any comments. Compliance with 28 C.F.R. Section 50.7 and the requirement for notice shall be by publication in the Federal Register by the Department of Justice.

XII. CONTINUING JURISDICTION

This Court retains jurisdiction over this matter for the purpose of enforcing the rights and obligations created under this Consent Order.

XIII. CONVENANT NOT TO SUE

Provided that Defendants have complied with the terms and conditions of this Consent Order, Plaintiff agrees not to seek additional civil injunctive relief for any actions or violations cited in Paragraph IV above, Agreed Findings of Fact. ++EP++

Page 13 XIV. TERMINATION

This Consent Order shall terminate following certification by U.S. EPA that Defendant has maintained compliance continuously for three years following the date of entry of this Consent Order. IT IS SO ORDERED.

Date: April 16, 1985

/s/ (ILLEGIBLE)

Honorable Paul A Magnuson

United States District Court

/s/

Byron E Starns

BYRON STARNS

Leonard Street & Deinard

1200 National City Bank Bldg.

510 Marquette Avenue

Minneapolis, MN 55402

Plaintiff

United States of America

/s/ Hyman Friedman

HYMAN FRIEDMAN for himself and for AAA Fuel Oil Company,

Kimro, Inc., and Zenith Oil Co.

/s/ Henry Habicht

F. Henry Habicht, II

Assistant Attorney General

Land & Natural Resources Division

United States Department of

Justice

By: /s/ (ILLEGIBLE)

Steven Willey, Attorney

Land & Natural Resource Division

U.S. Department of Justice

JAMES M. ROSENBAUM

United States Attorney

By: /s/ James lackner

James E. Lackner

Assistant U.S. Attorney

110 South Fourth Street

Minneapolis, MN 55401 ++EP++

Page 14

/s/ Courtney Price

Courtney Price

Assistant Administrator,

Office of Enforcement and

Complaince Monitoring

United States Environmental

Protection Agency

/s/ (ILLEGIBLE)

Valdas V. Adamkus

Regional Administrator

United States Environmental

Protection Agency,

Region V

/s/ Linda J. Szamprush

Linda J. Szamprush, Attorney

United States Environmental

Protection Agency,

Office of Regional Counsel

Region V ++EP++

Page 15 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA THIRD DIVISION

Clerk's Notice under

Rule 77(d), Federal

Rules of Civil Procedure

CIVIL CASE NO: 3-84-453

DATE NOTICE MAILED: 4-17-85

UNITED STATES OF AMERICA Plaintiff

vs.

HYMAN FRIEDMAN ET AL Defendant

You are hereby notified that on this date, April 17, 1985, the following was filed in the above-entitled action:

4-17-85 18 CONSENT ORDER (MAGNUSON-J)THAT: This Consent Order shall terminate following certification by U.S. EPA that Deft has maintained compliance continuously for three years following the date of entry of this Consent Order.

FRANCIS E. DOSAL, CLERK

BY Debra K Forscken

Deputy Clerk

JAMES E. LACKNER

Assistant U.S. Attorney

234 United States Courthouse

110 South Fourth Street

Minneapolis, MN 55401

STEVE WILLEY

U.S. Dept. of Justice

Lands/Natural Resources Div.

10th & Pennsylvania Ave., NW

Washington, D.C. 20530

ROBERT B. SCHAFFER/LINDA J. SZEMPRUCH

230 South Dearborn Street

Chicago, Illinois 60604

BRYON STARNS

Leonard, Street and Deinard

1200 National City Bank Building

510 Marquette Avenue

Minneapolis, Minnesota 55402 ++EP++

ILADA ENERGY CO.

DOC 03 OF 03

CONSENT DECREE

05-83-C002

TSCA

OTHER

19830118

19830118

ILD980996789

(NO FACILITY NAME)

EAST CAPE GIRARDEA, IL

83-4006

05

CONSENT DECREE FOR U.S. ILADA ENERGY CO.

Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

Civil Action No. 83-4006

Chief Judge James L. Foreman

UNITED STATES OF AMERICA, Plaintiff,

v.

ILADA ENERGY COMPANY, THOMAS WILSON, LARRY WILSON RUBY CARSON, LINDA WILSON, TENARK OIL COMPANY, DONALD PRATT, Defendants.

CONSENT DECREE AND ORDER

This cause came on for hearing upon the application of the Plaintiff, United States of America, for a preliminary and permanent injunction on January 17, 1983. The Court, having considered the filings of all the parties to this case, and having been advised of the agreements reached by the parties to this action, and being fully advised in the premises, hereby finds as follows:

1. The Defendant Ilada Energy Company owns and operates an oil tank farm (site) located on Route 3, East Cape Girardeau, Alexander County, Illinois.

2. Mr. William Meehan and Mr. David Antognoli have appeared before the Court as the attorneys for Ilada Energy Company, its officers, directors and stockholders. ++EP++

Page 2

3. That the Defendants acknowledge waste oil, laden with polychlorinated biphenyls (PCBs), a toxic substance harmful to health and the environment, is currently present at the site.

4. That storage tank number 7 and other tanks at the site contain a large volume of PCB contaminated waste oil which may escape to the environment.

5. That other storage tanks on the site contain large volumes of PCB contaminated waste oil and other hazardous waste.

6. That flooding has, and is continuing to occur on the site, which may create an imminent hazard constituting an unreasonable risk of harm to health or the environment by dispersing PCB contaminated waste oil to the environment.

7. That the site is in such a condition as to constitute an imminent hazard posing an unreasonable risk of harm to health or the environment by the improper storage, use and disposal, by burning and other means, of PCBs at the site.

Moreover the Court concludes, based on the foregoing findings of facts, that:

1. Defendants have violated in the past, and have agreed not to violate in the future, the Toxic Substances Control Act ++EP++

(TSCA), 15 U.S.C. Sub-Section 2601, 2606, 2614, and 2616 and regulations promulgated thereunder.

Page 3

2. Defendants have violated in the past, and agree not to violate section 15 of TSCA, 15 U.S.C. Section 2614, and regulations promulgated pursuant to section 6 of TSCA.

WHEREFORE, based upon the foregoing findings of fact, conclusions of law, and the agreements of the parties, it is hereby ORDERED, ADJUDGED AND DECREED that the Defendants, Ilada Energy Company, itsofficers, agents, servants, employees and attorneys, and all persons in active concert or participation with them be and hereby are enjoined, during the pendency of this action and until further order of the Court, as follows:

1. Defendants shall immediatedly cease all activities relating to the receipt, transportation, storage, handling use and disposal of PCBs, chemicals, wastes or other substances at the bulk storage farm and waste oil reclamation operation at Route 3, East Cape Girardeau, Alexander County, Illinois, (site) until and unless such activities are approved and authorized by the U.S. EPA prior to being performed, and are designated as being in full compliance with all federal environmental laws including, but not limited to, the requirements of TSCA, 15 U.S.C. Section 2601 et seq. and the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. subject to the provisions of paragraph six of this ++EP++

Order and Decree below.

Page 4

2. Defendants have advised the Court that they have sealed storage tank number 7 located at the site and will take all further action necessary to immediately, forthwith and without delay seal and close storage tank number 7 to prevent any further dispersalof PCB contaminated substances to the environment.

3. Under the guidance and direction of the U.S. EPA, Defendants shall forthwith and without delay remove the PCB contaminated material in the bulk storage tanks and any other container at the site in accordance with the requirements of TSCA and all other applicable federal and state statutes and regulations, including but not limited to:

a. placing the PCB contaminated oil in Department of Transportation approved containers; and

b. storing the PCB contaminated oil at a storage site which complies with the regulations promulgated under TSCA and/or disposing of the PCB contaminated oil in a U.S. EPA approved incinerator facility or by other approved methods, subject to the provisions of paragraph six (6) of the Order and Decree below.

4. Defendants shall promptly conduct soil sampling by U.S. EPA approved methods in and around the site to determine the extent to which such soils have been contaminated by PCBs and/or hazardous waste. Thereafter, upon receipt of any analysis which shows that the soil is contaminated with PCBs or hazardous waste, Defendants shall take all necessary actions to remedy the contamination at the site. If the parties ++EP++

agree on a contractor or other entity to perform the preliminary sampling and analysis required by this paragraph of the Order, and the sampling and analysis are conducted in accordance with all requirements of law and U.S. EPA regulations and guidance, the results of said preliminary analysis shall be conclusive as to those preliminary samples, subject to the further testing and analysis as may be required pursuant to paragraphs six (6) and seven (7) of this Order.

Page 5

5. The Defendants shall forthwith and without delay permit U.S. EPA and the State of Illinois personnel and contractors immediate access to the Ilada site at all reasonable times to inspect the performance of the Defendants during the course of this Order.

6. The Court authorizes U.S. EPA and the State of Illinois officals and contractors to forthwith enter, inspect, take samples and to review and copy records related to the receipt, use, transport or disposal of chemicals at the site at Route 3, East Cape Girardeau, Alexander County, Illinois, or in any building or structure thereon at all reasonable times. U.S. EPA and the State of Illinois officals are authorized to take all actions necessary to prevent the further contamination, through discharges to the environment or otherwise, of any toxic or hazardous chemical at the site. The U.S. Marshall is hereby authorized and directed to take all actions necessary ++EP++

to aid U.S. EPA and the State of Illinois officials in the performance of all aspects of this Order.

Page 6

The federal inspections contemplated by this Order will be conducted within the first two weeksof the month of February, between February 1, and February 14, 1983, with U.S. EPA notifying Ilada Energy Company through its attorney of the exact date of such inspections no later than seven days prior to the actual performance of said inspections under this Order. After the inspections conducted in accordance with paragraph six (6) of this Order are completed, U.S. EPA will advise Defendants of all further remedial actions which must be taken by Defendants in order to bring the site into full compliance with all applicable environmental laws. U.S. EPA will provide all possible assistance to Defendants, consistent with the requirements of law, in submitting any necessary applications for operating permits under TSCA and RCRA.

It is further Ordered that the Court herein retains jurisdiction over this action until all remedial measures have been fully accomplished and until further Order of this Court.

It is so Ordered, Adjudged and Decreed, and Agreed to by the undersigned parties to this action, on this 18th day of January, 1983. ++EP++

Page 7

/s/ William F. Meehan

For the Defendants: Ilada

Energy Company, Thomas Wilson

Larry Wilson, Ruby Carson,

Linda Wison, and Donald Pratt;

By William F. Meehan, 229

Twelfth Street, Cairo, Illinois

For the United States of America,

Plaintiff

FREDRICK J. HESS

UNITED STATES ATTORNEY

SOUTHERN DISTRICT OF ILLINOIS

/s/ Michael C. Carr

Assistant United States Attorney

/s/ Robert M. Andersen

Robert M. Andersen, Chief

Water, Toxics and General Administration

United States Environmental Protection Agency,

Regional Counsel

230 So. Dearborn Street

Chicago, Illinois 60604

/s/ Craig A. Benedict

raig A. Benedict

Assistant Regional Counsel

United States Environmental Protection Agency

/s/ James L. Foreman

Chief Judge

eod January 18, 1983 KBM ++EP++

ILADA ENERGY CO.

DOC 02 OF 03

ORDER

05-83-C002

TSCA

OTHER

19830118

19830107

ILD980996789

(NO FACILITY NAME)

EAST CAPE GIRARDEA, IL

83-4006

05

ORDER IN U.S. v. ILADA ENERGY CO.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

Civil Action No. 83-4006

UNITED STATES OF AMERICA, Plaintiff,

v.

ILADA ENERGY COMPANY, Defendant.

ORDER

The Court hereby grants Plaintiff's motion for a Temporary Restraining Order against the Defendant. The Court finds that the Defendant has violated the Toxic Substances Control Act (TSCA) 15 U.S. C. Section 2601 et seq. Specifically the Court finds that the Defendant has violated Sections 15 U.S.C.2606 and 2616.

The Defendant has created or caused to be created an imminent hazard creating an unreasonable risk of harm to health or the environment and has violated regulations promulgated pursuant to Section 6 of TSCA including the improper disposal, storage, use, marking and recordkeeping of polychlorinated biphenyls (PCBs).

The imminent hazard posing an unreasonable risk of harm to health or the environment has been created by the improper disposal by burning, and other means,of PCB into the environment. The Defendant has further violated regulations promulgated pursuant to Section 6 of TSCA by the aforementioned improper disposal, storage, use, marking and recordkeeping of PCBs.

The aforementioned violations create an irreparable injury to the United States by allowing PCBs to enter into the environment. Unless enjoined as set out below Defendant will continue to allow the illegal disposal and other violations of TSCA and its regulations.

Wherefore, I hereby order the Ilada Energy Company is temporarily enjoined from taking any of the following actions:

1. a. Accepting delivery of any substance containing PCBs

at the site;

b. storing, mixing, handling, or disposing, by any means, any substance contining PCBs at the site;

c. transporting from the site any substance containing PCBs;

2. Ilada is further temporarily restrained from taking the following actions at the site, unless authorized and approved by the State of Illinois or the U.S. EPA:

a. accepting delivery to the site of any waste oils associated with defendant's waste oil reclamation operation;

b. storing, moving, or disposing, by burning or other means, the waste oils associated with defendant's wasteoil reclamation operation;

c. transporting from the site any waste oils associated with defendant's waste oil reclamation operation.

3. Illada is ordered to allow State and Federal officials access to thesite.

4. Ilada is ordered to take all actions necessary to prevent the unauthorized and illegal discharge of PCBs into the environment, including, but not limited to, the sealing of any open tanks or other storage device containing PCBs.

The Court hereby orders the defendant to show cause at 9:30 o'clock a.m. on Monday, January 17, 1983, at the Federal Courthouse, Benton, Illinois, why a preliminary injunction should not issue as prayed for in the complaint herein.

This order is entered this 7th day of January, 1983 at 5:20 o'clock p.m.

CHIEF JUDGE

ILADA ENERGY CO.

DOC 01 OF 03

COMPLAINT

05-83-C002

TSCA

OTHER

19830118

19830117

ILD980996789

(NO FACILITY NAME)

EAST CAPE GIRARDEA, IL

83-4006

05

COMPLAINT IN U.S. ILADA ENERGY CO.

Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DSTRICT OF ILLINOIS

Civil Action No.

UNITED STATES of AMERICA, Plaintiff,

v.

ILADA ENERGY COMPANY, Defendant,

COMPLAINT AND APPLICATION FOR PRELIMINARY AND PERMANENT INJUNCTION

As its Complaint herein, the United States of America, for the Administrator of the United States Environmental Protection Agency, alleges that:

STATEMENT OF THE ACTION

1. This is a civil action instituted pursuant to Sections 7 and 17 of the Toxic Substances Control Act ("TSCA"), 15 U.S.C. Sub-Section 2606 and 2616, for declaratory and injunctive relief to abate and remedy violations of TSCA and regulations promulgated pursuant to TSCA, 40 CFR Part 761, and for costs incurred by Plaintiff.

JURISDICTION

2. This Court has jurisdiction over the subject matter of this action pursuant to 15 U.S.C. Sub-Section 2606 and 2616; 28 U.S.C. Section 1331; and 28 U.S.C. Sub-Section 2201; 2202. Venue is proper pursuant to 28 U.S.C. Section 1391(b) because the claims herein arose in this district. ++EP++

Page 2 DEFENDANT

3. Defendant Ilada Energy Company (Ilada) is a for-profit Nevada Corporation registered to do business in the State of Illinois. Ilada Energy Company owns and operates a bulk storage tank farm and waste oil reclamation operation ("site") at Route 3, East Cape Girardeau, Alexander County, Illinois.

GENERAL ALLEGATIONS

4. The site is located in the Northwest Quarter, Section 32, Township 14S, Range 3W, 3rd P.M., Alexander County, Illinois.

5. The site consists of, among other things, bulk storage tanks, miscellaneous storage buildings, offices, a pumphouse, a boiler house, a boiler, and a deep water well. The storage capacity at the site is in excess of 10 million gallons.

6. For the period March, 1981, to the present, Ilada has caused polychlorinated biphenyls ("PCBs") to be transported to, stored at, used, mixed, and disposed of at the site in violation of 15 U.S.C. 2601 et seq., and regulations promulgated thereunder.

7. On April 27, 1982, field inspectors for the Illinois Environmental Protection Agency inspected the site, sampled materials in bulk storage tanks present there, and determined that the site was being used to store, among other substances, PCB laden waste oil in concentrations of 150 parts per million (ppm). ++EP++

Page 3

8. On November 16, 1982, field inspectors for the Illinois Environmental Protection Agency inspected the site, sampled materials in the site's bulk storage tanks, and determined that the site was being used to store, among other substances, PCB laden waste oil in concentrations ranging from 110-220 ppm.

9. One of the bulk storage tanks, tank #7, contained over one hundred thousand gallons of PCB laden waste oil. That same tank has an open porthole, approximately two and one-half (2 1/2) feet in diameter, located only eighteen inches from the bottom of the tank.

10. On November 16, 1982, field inspectors for the Illinois Environmental Protection Agency inspected the site and determined that Ilada employees had caused and were causing the improper disposal of waste oil contaminated with PCB's in concentrations of 110-200 ppm by combusting the waste oil in the site's boiler. Said waste oil was being burned in Ilada's boiler during waste oil reclamation operations.

11. PCBs are heat resistent and can not be rendered fully harmless unless burned at exceptionally high temperatures.

12. PCBs not rendered harmless by proper combustion methods will vaporize into the ambient air.

13. Partially burnt PCBs are capable of molecular transformations which ultimately result in the production of dioxin, or byproducts thereof, an extremely hazardous chemical group which can also vaporize into the air. ++EP++

Page 4

14. On December 16th and 28th, 1982 a field inspector for the Illinois Environmental Protection Agency observed the site without entering it.

15. On both occasions, extensive flooding existed at the site. Substantial amounts of flood waters were entering and leaving the site.

16. On December 28, 1982, the waters were observed by said inspector at levels sufficient to enter the porthole opening located eighteen inches from the ground on tank #7. Tank #7 was previously determined to contain over one hundred thousand gallons of PCB laden waste oil.

17. A variety of chemicals, identified and unidentified, are present at the site in bulk storage tanks. Included among those chemicals which have been identified at the site are the following which are hazardous to human health and safety, and to the environment, due either to the possibility of discharge or fire and explosion:

a. PCBs

PCBs are a group of highly toxic chemicals which are have been demonstrated to cause cancer in animals and are suspect human carcinogen. PCBs cause liver damage, changes in skin pigmentation, and chloracne. PCBs can be transported, by way of the placenta, to an unborn fetus and can concentrate in the milk of exposed mothers. PCBs may decrease fertility. PCBs can increase the amount of certain enzymes which are found in the liver, lungs, and skin; the increased level of these enzymes may increase the toxicological hazard of other chemicals. PCBs bioaccumalate, which means that they are retained in human and animal tissues at concentrations in excess of exposure levels. PCBs are very stable and persistent in the environment. ++EP++

Page 5

PCBs have been identified in the bulk storage tanks on the site in concentrations of 110-200 ppm.

b. Naphthalene

Naphthalene is combustible and will react vigorously with chemical oxidizers. Human exposure to naphthalene has resulted in changes in blood chemistry including anemia. Exposure to naphthalene has also produced cataracts in experimental animals.

Naphthalene has been identified in the bulk storage tanks on the site.

c. Xylene

Xylenes have a closed cup flash point of 81 degrees to 90 degrees fahrenheit. They pose a dangerous fire hazard when exposed to heat or flame and can react vigorously with oxidizing materials.

Xylenes has been identified in the bulk storage tanks on the site.

d. Toluene

Toluene has a closed cup flash point of 40 degrees fahrenheit. Toluene can affect the central nervous system (causing lack of coordination) and can cause nausea. Toluene may be an animal teratogen (a substance which causes birth defects).

Toluene has been identified in the bulk storage tanks on the site.

18. The site is accessible to people and animals. Ilada Energy Company employees have worked at the site and continue to work at the site. The site is adjacent to agricultural land and to the Mississippi River, a navigable waterway used for commerce and recreation. ++EP++

Page 6

19. The conditions existing at the site constitute an imminent and continuing unreasonable risk to human health and the environment. The flooding conditions at the site could allow rain water to enter into bulk storage tank #7 and thus become contaminated. If sufficient quantities of water enter the tank, the PCB contaminated oil layer will rise in the tank and eventually escape to the environment unless the porthole in tank #7 is closed.

20. Inspections by State of Illinois officials discovered the presence of other hazardous chemicals is the bulk storage tanks with flash points as low as forty (40) degrees Fahrenheit. Should combustion occur, hundreds of thousands of gallons of PCB laden oil could be discharged to the ambient air, ground, and surface waters on and near the site. This creates an imminent risk of unreasonable harm to human health and the environment.

21. The partial burning of PCB laden waste oils at the site constitutes a an imminent and continuing unreasonable risk to human health and the environment.

FIRST CLAIM FOR RELIEF

22. The allegations of paragraphs 1 through 21 of this complaint are hereby incorporated by reference and made a part hereof.

23. Ilada's past and continued improper and illegal disposal, use, storage and recordkeeping of PCB laden waste oil on the site constitutes serious violations of TSCA which are actionable under section 17 of the Act, 15 U.S.C. Section 2616, and the regulations promulgated thereunder.

SECOND CLAIM FOR RELIEF

24. The allegations of paragraphs 1 through 23 of this complaint are hereby incorporated by reference and made a part hereof. ++EP++

Page 7

25. Ilada's past and continued improper and illegal storage, handling, and disposal of PCB laden waste oil on the site constitutes serious violations of TSCA and an imminent unreasonable risk of harm to human health and the environment which are actionable under section 7 of the Act, 15 U.S.C. Section 2606, and the regulations promulgated thereunder.

THIRD CLAIM FOR RELIEF

26. The allegations of paragraphs 1 through 25 are hereby incorporated by reference and made a part hereof.

27. Section 6(e) of TSCA, 15 U.S.C. 2605, authorizes the United States Environmental Protection Agency to promulgate regulation governing PCBs. Pursuant to this section, regulations were promulgated on February 17, 1978 (42 Fed. Reg. 7150) and May 31, 1979 (44 Fed. Reg. 31514). Section 15 of TSCA, 15 U.S.C. 2614, makes unlawful the failure or refusal to comply with any requirement prescribed by Section 6 or any rule or order issued under Section 6. Section 17 of TSCA, 15 U.S.C. 2616, provides for specific enforcement.

28. There has been uncontrolled discharges of PCBs through the burning of PCBs in a boiler not meeting the requirements of 40 CFR Section 761.60(a). Said discharges have been entering the environment since March, 1981. Such discharges are prohibited by TSCA and regulations at 40 CFR 761.60(a).

29. PCBs contaminated waste oil from the Ilada site is being disposed of in an incinerator which has not been approved by the State or U.S. EPA. The method of disposal utilized at the Ilada site is in violation TSCA and regulations promulgated thereunder, 40 CFR 761.60( a). ++EP++

Page 8

30. Liquid PCBs are required by TSCA and 40 CFR 761.65(b)(1) to be stored in a container which can prevent contact with rain water. The PCBs stored in the bulk storage tanks at the Ilada site are not in such containers.

31. Containers and areas holding PCBs are required to be marked in accordance with the requirements of TSCA and 40 CFR 761.40(a)(1) and 40 CFR 761.40(a)(10). The Ilada site is not marked in accordance with those requirements.

32. Owners and operators of PCB storage facilities are required by TSCA and 40 CFR 761.181(a) and (b) to develop and maintain records on the disposition of PCBs in service, stored or projected for disposal or disposed of. No such records have been developed or maintained for the Ilada site.

33. Defendant Ilada Energy Company has violated Section 15 of TSCA, 15 U.S.C. 2614, by its failure to comply with the regulations referenced in paragraphs 1 through 32 of this complaint, and is thus subject to enforcement pursuant 15 U.S.C. Section 2616. Unless the violations of TSCA at the site are enjoined, plaintiff, United States of America will suffer an unreasonable risk of injury to the public health or the environment for which there is no adequate remedy at law.

RELIEF REQUESTED

WHEREFORE, Plaintiff United States of America prays:

A. That this Court issue a mandatory injunction requiring defendant Ilada Energy Company to: ++EP++

Page 9

1. Cease all activities relating to the transportation, storage, handling of PCBs, chemicals, wastes or other substances at the Ilada site unless such activities are in compliance with all federal environmental laws including, but not limited to, the requirements TSCA, 15 U.S.C. 2601 et seq. and the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et. seq.

2. Under the guidance and direction of the State of Illinois and U. S. EPA, remove the PCB-contaminated material in the bulk storage tanks and any other container at the Ilada site in accordance with the requirements of TSCA and all other applicable federal and state statutes and regulations, including but not limited to:

a. placing the PCB-contaminated oil in Department of Transportation approved containers; and

b. storing the PCB-contaminated oil at a storage site which complies with the regulations promulgated under TSCA and/or disposing of the PCB-contaminated oil in an EPA approved incinerator facility.

3. Install and maintain groundwater monitoring wells at the Ilada site. Samples shall be taken by Ilada monthly and analyzed for the presence of PCBs and hazardous waste by EPA-approved methods. The analytical results shall be forwarded promptly to USEPA.

4. Promptly conduct soil sampling by EPA-approved methods in and around the Ilada site to determine the extent to which such soils have been contaminated by PCBs and/or hazardous waste. Thereafter, upon receipt of analyses which shows that such soil is contaminated, take all necessary remedial action required to return the site to conditions prior to such contamination. ++EP++

Page 10

5. Promptly post a bond in the amount of one million dollars to insure compliance with the terms of the injunction in the event of insolvency.

B. That the Court order the defendant Ilada Energy Company to permit USEPA and State of Illinois personnel and contractors access to the Ilada site at all reasonable times to inspect the performance of defendant during the course of the injunctive relief.

D. That the Court retain jurisdiction of this action until all remedial measures have been accomplished at the Ilada site.

E. That the Court award plaintiff the costs of this suit, attorney's fees, and any other relief which the Court finds just and appropriate.

Date:

Respectfully submitted,

FREDERICK J. HESS

UNITED STATES ATTORNEY for the SOUTHERN DISTRICT of ILLINOIS

750 Missouri Avenue

East St. Louis, Illinois 62201

ROBERT SIMPKINS

ASSISTANT UNITED STATES ATTORNEY

750 Missouri Avenue

East St. Louis, Illinois 62202

ROBERT M. ANDERSEN

Chief, Water, Toxics, and General Administration

Branch

Office of Regional Counsel

U.S. Environmental Protection Agency

230 South Dearborn Street

Chicago, Illinois 60604

CRAIG BENEDICT, Assistant Regional Counsel

Office of Regional Counsel

U.S. ENVIRONMENTAL PROTECTION AGENCY

230 South Dearborn

Chicago, Illinois 60604 ++EP++

Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

Civil Action No.

UNITED STATES OF AMERICA, Plaintiff,

v.

ILADA ENERGY COMPANY, Defendant.

MOTION FOR TEMPORARY RESTRAINING ORDER

The United States of America, at the request and on behalf of the Administrator of the United States Environmental Protection Agency ("USEPA"), by and through its undersigned attorneys, moves this Court, pursuant to Rule 65 of the Federal Rules of Civil Procedure, to enter an order to prevent immediate and irreparable injury to the environment and citizens of the United States:

1. Temporarily restraining defendant Ilada Energy Company ("Ilada"), identified in the complaint filed concurrently with this Motion, from taking any of the following actions at defendant's bulk storage tank farm located at Route 3, East Cape Girardeau, Alexander County, Illinois (hereinafter "the site"), unless such actions are approved and authorized by the State of Illinois and USEPA.

a. accepting delivery of any substance containing polychlorinated biphenyls (PCBs) at the site;

b. storing, mixing, handling, or disposing, by any means, any substance containing PCBs at the site; ++EP++

Page 2

c. transporting from the site any substance containing PCBs.

2. Temporarily restraining defendant Ilada Energy Company from taking the following actions at the site, unless authorized and approved by the State of Illinois or USEPA:

a. accepting delivery to the site of any waste oils associated with defendant's waste oil reclamation operation;

b. storing, moving, or disposing, by burning or other means, the waste oils associated with defendant's waste oil reclamation operation;

c. transporting from the site any waste oils associated with defendant's waste oil reclamation operation.

3. Requiring Ilada Energy Company to allow State and Federal officials access to the site.

4. Requiring Ilada Energy to take all actions necessary to prevent the unauthorized and illegal discharge of PCB's to the environment, including, but not limited to, the sealing of any open tanks or other storage devices containing PCB's.

5. Any and all other additional relief which the Court deems just and appropriate.

Notice of this Motion has been given to the defendant. Plaintiff asserts that this Motion should be granted pending this Court's resolution of the Complaint. The Motion is supported by a Memorandum and Affidavits attached hereto.

Respectfully submitted,

FREDERICK J. HESS

United States Attorney for the

Southern District of Illinois ++EP++

Page 3

By:

ROBERT SIMPKINS

Assistant United States Attorney

/s/ Robert M. Andersen

ROBERT M. ANDERSEN, Chief

Water, Toxics, and General Administration

Branch, Office of Regional Counsel

United States Environmental Protection Agency,

Region V

230 South Dearborn Street, 16th Floor Chicago,

Illinois 60604

CRAIG BENEDICT

Assistant Regional Counsel

United States Environmental Protection Agency

230 South Dearborn Street

Chicago, Illinois 60604 ++EP++

Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

Civil Action No.

UNITED STATES of AMERICA Plaintiff,

v.

ILADA ENERGY COMPANY, Defendant.

MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND APPLICATION FOR PRELIMINARY AND PERMANENT INJUNCTION INTRODUCTION

The United States of America, at the request and on behalf of the Administrator of the United States Environmental Protection Agency ("USEPA"), submits this Memorandum, and respectfully directs this Court's attention to the Complaint and Application for Preliminary and Permanent Injunction, Plaintiff's Motion for Temporary Restraining Order filed in this action, and to the exhibits and affidavits annexed thereto.

This is an action seeking immediate injunctive and other relief to require defendant Ilada Energy Company ("Ilada") to take all steps necessary to abate an imminent hazard presenting an unreasonable risk to health or the environment and to remedy violations of the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., and the regulations promulgated thereunder, 40 C.F.R. Part 761 et seq., caused by Ilada's improper storage, mixing, handling, treatment, and ++EP++

disposal of polychlorinated biphenyls ("PCBs") at the Company's bulk storage tank farm and waste oil reclamation operation located at Route 3, East Cape Girardeau, Alexander County, Illinois ("site").

Page 2

Such relief is authorized by Sections 7 and 17 of TSCA, 15 U.S.C. Sub-Section 2606 and 2616. In this case, plaintiff also seeks a temporary restraining order and a preliminary and permanent injunction to prevent defendant from, inter alia, transporting waste oil containing PCBs to or from the site, and from disposing of such substances at the site without the prior approval of the State of Illinois and U.S. EPA.

I. STATEMENT OF FACTS A. Ownership and the Site.

The site is owned by Ilada Energy Company, a for-profit Nevada Corporation licensed to do business in the State of Illinois. The site is 20.3 acres and is described as that portion of the Northwest Quarter, Section 32, Township 14 5. Range 3 W, 3rd P.M. The site contains approximately 17 bulk storage tanks with a storage capacity in excess of 10 million gallons. The site also houses miscellaneous storage buildings, offices, a boiler house, a boiler, piping and a deep water well, all associated with the operation of a waste oil reclamation process.

The site is adjacent to the Mississippi River and is separated from the River only by a levee, and is easily accessible to people and animals. Ilada employees conduct daily tasks in and around the bulk storage tanks and equipment associated with the site's waste oil reclamation operation. ++EP++

Page 3 B. Nature of the Hazard

Recently the Illinois Environmental Protection Agency (IEPA) performed site inspections and sampled of materials transported to, stored, handled, mixed, and disposed of at Ilada. Laboratory analysis revealed widespread polychlorinated biphenyl (PCB) contamination in hundreds of thousands of gallons of waste oils stored at Ilada. A porthole 2 1/2 feet in diameter in one tank, confirmed as holding over one hundred thousand gallons of PCB oils, is at levels which may allow flood waters to enter. In addition, oil burned in an unapproved boiler at the site is also contaminated with PCBs. (Mensing affidavit). Such combustion poses serious health concerns because PCBs are heat resistent and anything but extremely high temperatures will merely vaporize and spread the chemical into the ambient air. Further, PCB can be converted in ultra-hazardous dioxin under conditions which may be present at the site. (Simon Affidavit, Attachment B).

TSCA, and the regulations promulgated thereunder, 40 C.F.R. Part 761 et seq. govern the proper disposal, storage, use, labeling and recordkeeping of PCBs. The laboratory analysis performed by the State of Illinois confirmed the presence of PCBs and established large scale violations of TSCA and the regulations at the Ilada site.

C. Background

On April 27, 1982, Ken Mensing, an IEPA field inspector, inspected and sampled at the site. Subsequent laboratory analysis confirmed that the bulk storage tanks were being used to contain hazardous waste, some with flash points as low as 75 degrees F, and PCB laden waste oils. During the inspection, Mensing informed Mr. Larry Wilson, the general manager of Ilada, that Ilada's ++EP++

handling of such hazardous waste was not permitted by the State of Illinois.

Page 4

(Mensing Affidavit; Attachment A). On October 8, 1982, Inspector Mensing again inspected the Ilada site. Inspector Mensing was informed by Mr. Wilson that the site "was not dealing in hazardous waste anymore." When asked by Inspector Mensing to sample at the site, Mr. Wilson refused permission. During this inspection, however, Inspector Mensing determined through Ilada employee interviews that waste oils were currently stored and reclaimed at the site. (Mensing Affidavit).

On November 16, 1982, Inspector Mensing, accompanied by representatives of the Illinois Attorney General's Office, the Illinois Department of Law Enforcement, and the East Cape Griardeau Police Department conducted a warrant search of the site. Inspector Mensing obtained samples from the site's bulk storage tanks used in the facilities waste oil reclamation process. Subsequent analyses confirmed that the bulk storage tanks contained hazardous waste, and waste oils laden with PCBs in concentrations of 110-220 ppm. No PCB records required under 40 C.F.R. Part 761 were discovered. Inspector Mensing also interviewed site employees and determined that Ilada routinely burns the PCB laden waste oil in the waste oil reclamation boiler. (Mensing Affidavit and Simon Affidavit). As is described in the Simon Affadavit, imporperly burned PCBs vaporize into the air and can alter molecularily to ultimately form dioxin, one of the most hazardous chemicals known to man.

On December 16, 1982, Inspector Mensing approached the site but was unable to gain access due to flooding conditions in and around the largest bulk storage tanks. The conditions at the site were such that the bulk storage tank containing the largest quantity of PCB laden waste oil, which is not an approved container ++EP++

for such purposes and which is open to the environment, creates a substantial likelihood of a release of PCBs and other hazardous chemicals to the environment.

Page 6

Specifically, the storage tank has a porthole opening approximately 18 inches from the tank's bottom and the flooding conditions existing at the site create the substantial likelihood that the waste will flush out of the tank thereby creating an imminent hazard by discharging hazardous wastes and PCBs into the environment. (Mensing Affidavit; Attachment A).

The Complaint filed herein summarizes the toxic nature of PCBs transported to, stored, handled mixed and disposed of at the Ilada site. PCB laden waste oils presently at the site are likely to be discharged to the environment. Such a release threatens the health of the Ilada employees on-site, other people and animals which have easy access to the site, and commercial and recreational traffic on the Mississippi River. The immediate dangers posed by the site are (1) PCB and hazardous waste contamination of the groundwater around and underlying the bulk storage tanks and waste oil reclamation operations, and (2) the release of PCBs and hazardous waste to the Mississippi River, (3) the release of PCBs into the air and the possible formation of dioxin which could expose persons within range of boiler vapors and extreme health hazard.

ARGUMENT

1. THE CONDITIONS EXISTING AT THE ILADA SITE JUSTIFY THE IMPOSITION OF A TEMPORARY RESTRAINING ORDER.

Traditionally, the trial court may, in the exercise of its discretion, properly grant a temporary restraining order or other injunctive relief after properly weighing several factors, including: (1) the possibility of irreparable injury to the moving party in the absence of relief, (2) the possibility of ++EP++

harm to the non-moving party if relief is granted, (3) the likelihood of success on the merits; and (4) the public interest.

Page 6

United States v. Price, 688 F.2d 204, 211 (3rd Cir. 1982) citing, Goldhaber v. Foley, 519 F. Supp 466, 473 (E.D.Pa. 1981). F.E.L. Publications, Ltd. v. National Confrence of Catholic Bishops, 466 F. Supp. 1034 (N.D.IL. 1978). And, when the public interest is involved, courts may go much further to give relief in furtherance of the public interest than they customarily do when only private interests are involved. Yakus v. United States, 321 U.S. 414, 440 (1944)

In this case it is absolutely clear that irreparable harm to the United States, its citizens and the environment, will continue to occur unless the requested order is granted. Without fully restating the substantial evidence produced in support of this Motion by way of affidavits, it should be noted that the following unreasonable risks to humans, animals, and the environment exist at the site:

(1) The potential for over a hundred thousand gallons of PCB laden waste oil being discharged to the environment if tank #7 is not sealed;

(2) The continued discharge of partially combusted PCB laden waste oil to the ambient air, and the probable concomitant production of ultra-hazardous dioxin;

(3) the continued contact of humans and animals with objects and water on the site without protection from PCB contaminated substances. ++EP++

Page 7

Thus, not only will harm result if the order is not granted, but the order is also clearly in the public interest under such circumstances.

Moreover, there can be no question that Plaintiff will prevail on the merits of this case filed to enjoin open and notorious violations of important environmental Acts designed to protect public health and the environment. The Toxic Substances Control Act was enacted as a result of congressional findings that there are various chemical substances which, if not regulated, may present an unreasonable risk of injury to health or the environment. 15 U.S.C. Section 2601. Polychlorinated biphenyls were specifically singled out by Congress as a chemical substance within the scope of TSCA. 15 U.S.C. 2605(e). Accordingly, the Administrator promulgated regulations on February 17, 1978 (42 Fed. Reg. 7150) and May 31, 1979 (44 Fed. Reg. 31514) which establish the regulatory frame work for controlling the use, transport, storage and disposal of PCBs. 40 CFR 761 et seq. As has been demonstrated, Ilada has violated most of these provisions.

40 CFR 761 et seq. applies to all persons who manufacture, process, distribute in commerce, use, or dispose of PCBs. 40 CFR 761.1. Unless specifically provided otherwise in 40 CFR 761 et seq. the provisions of the regulations refer to any chemical substances and combination of substances that contain PCBs in concentrations of 50 parts per million (ppm), or greater. 40 CFR 761.1(b).

As the evidence shows, defendant Ilada uses, stores, and disposes of PCBs at its site in East Cape Girardeau, Illinois. (Mensing Affidavit) The nature and toxic effects of PCBs are set forth in the Complaint filed herein. Without question, Defendant Ilada has violated and continues to violate specific requirements ++EP++ for the proper handling and disposal of PCBs.

Page 8

There have been uncontrolled discharges of PCBs concentrations of greater than 50 ppm at the Ilada site in violation of 40 CFR 761.60(a). The PCBs in the waste oil used in the boiler on the Ilada site are not being disposed of in an incinerator which is approved by the USEPA or by any other approved method. (See Simon Affadavit) This means of disposal violates 40 CFR 761.60(a). Liquid PCBs are required by 40 CFR 761.65(b)(1) to be stored in containers which do not allow access to rainwater. The PCBs stored at the Ilada site are not in such containers. Over a hundred thousand gallons of PCB laden waste oil is stored in tank #7 which is open to the environment. Containers and areas where PCBs are stored are required to be marked in accordance with the requirements of 40 CFR 761.40 (a)(1) and (10). The Ilada site is not marked in accordance with these requirements. Owners and operators of PCB storage facilities are required by 40 CFR 761.181(a) and (b) to prepare and retain records on the disposition of PCBs in service, stored, projected for disposal, or disposed of. No such records have been developed or maintained for the Ilada site.

(Mensing affidavit).

The evidence clearly demonstrates that Defendant Ilada Energy Company has caused an imminent hazard under Section 7 of TSCA 15 U.S.C. Section 2606 and has violated Section 15 of TSCA, 15 U.S.C. 2614, by its failure to comply with the regulations contained in Appendix A to this Memorandum and is thus subject to proceedings for a Temporary Restraining Order. ++EP++

Page 9

In this case, the preliminary and permanent relief prayed for is straight forward. Plaintiff has requested this Court to order Ilada Energy Company to comply with all applicable federal, state, and local environmental regulations which apply to the operation of Ilada's East Cape Girardeau, Illinois bulk storage tank farm and waste oil reclaim operation and to take steps to abate all imminent hazards. The burden on defendant is only that which is imposed by operation of law and is no greater than the burden placed on persons similarly situated. The evidence shows that defendant has operated this site in violation of existing federal and state laws and will likely continue to do so unless restrained by a order of this Court. As documented in the Complaint, the harm that may result to the health of persons and the environment as a result of Ilada's continued unlawful operation if the site outweights any alleged inconvenience or possible financial injury to defendant. Accordingly, Plaintiff respectfully submits that its Motion for Temporary Restraining Order and the Application for Preliminary and Permanent Injunction be granted.

Respectfully submitted,

FREDERICK J. HESS

United States Attorney for the Southern District

of Illinois

By:

ROBERT SIMPKINS

Assistant United States Attorney

/s/ Robert M. Andersen

ROBERT M. ANDERSEN, Chief

Water, Toxics and General Administration

Branch, Office of Regional Counsel

U.S. Environmental Protection Agency,

230 South Dearborn Street, 16th Floor

Chic