IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

___________________________________
                                   )
     UNITED STATES OF AMERICA,     )
     Plaintiff,                    )
     and                           )
     THE STATE OP INDIANA and      )
     THE ENVIRONMENTAL MANAGEMENT  )
     BOARD OF THE STATE OF INDIANA,)
                                   )
     Intervening Plaintiffs,       )Civil Action No. IP 83-9-C
                                   )
          v.                       ) JUDGE WILLIAM E. STECKLER
                                   )                              
                                   )
     WESTINGHOUSE ELECTRIC         )
     CORPORATION,                  )
     Defendant and Third           )
     Party Plaintiff,              )
                                   )
     v.                            )
                                   )
     MONSANTO COMPANY,             )
                                   )
            Third Party Defendant, )
                                   )
                   and             )
                                   )
     THE CITY OF BLOOMINGTON,      ) Civil Action No. IP 81-448-C
     INDIANA, THE UTILITIES        )
     SERVICE BOARD OF BLOOMINGTON, )   JUDGE S. HUGH DILLIN
     INDIANA,                      )    
     and MONROE COUNTY, INDIANA,   )
     Plaintiffs,                   )
     v.                            )
     WESTINGHOUSE ELECTRIC         )
     CORPORATION and MONSANTO      )
     COMPANY,                      )
               Defendants.         )
     ______________________________)

                              CONSENT DECREE

_________________________________________________________________

This document was scanned from the best available copy - an
unsigned original. Although it was checked carefully, some
typographical errors may remain.  Please report any corrections
to:  COPA, P.O. Box 665, Bloomington, Indiana, 47408-0665
     phone: (812) 333-4552    fax: (812) 332-8511 
_________________________________________________________________
                           TABLE OF CONTENTS                                     
                                                                                Page

I.        JURISDICTION   1
II.       BINDING EFFECT 1
III.      DEFINITIONS    2    
IV.       PURPOSE AND SUMMARY OF ACTIVITIES  6
V.        INCINERATOR OBLIGATIONS  7
VI.       SOLID WASTE SUPPLIED BY THE CITY AND COUNTY  17
VII.      ASH DISPOSAL   22
VIII.     REMOVAL MEASURES    24
IX.       CLOSURE   36
X.        POST-CLOSURE ACTIVITIES  39
XI.       INTERIM REMOVAL AND REMEDIAL MEASURES   40
XII.      INTERIM STORAGE OF MATERIALS CONTAINING PCBs 49   
XIII.     GROUNDWATER MONITORING PROTOCOL    53
XIV.      REPORTING 66
XV.       PARTIES TO BE NOTIFIED   67
XVI.      ACCESS AND RECORDS  68
XVII.     ON SCENE COORDINATOR     70
XVIII.    APPROVAL AUTHORITY  74
XIX.      FINANCIAL      75
XX.       INSURANCE      76
XXI.      COMPLIANCE WITH APPLICABLE LAWS    78
XXII.     PERMITS AND CONSTRUCTION SCHEDULE  79
XXIII     COVENANT NOT TO SUE      82
XXIV.     DISPUTE RESOLUTION  86
                                                                  
                                  Page

XXV.      WAIVER OF CLAIMS    87
XXVI.     REIMBURSEMENT OF    91
XXVII.    DELAY OR PREVENTION OF PERFORMANCE      92
XXIII.    CONSISTENCY WITH THE NATIONAL CONTINGENCY 
          PLAN      95
XXIX.     INFORMATION AVAILABILITY      95
XXX.      INDEMNITY      96
XXXI.     GENERAL PROVISIONS  99
XXXII.    RETENTION OF JURISDICTION     103
XXXIII.   TERMINATION    103


                            EXHIBITS 

Exhibit 1:     The Anderson Road Landfill - Metes and Bounds     
                for the Horizontal Limits of the site

Exhibit 2:     Bennett's Dump (South Area) - Metes and Bounds         
                for the Horizontal Limits of the site

Exhibit 3:     Bennett's Dump (North Area) - Metes and Bounds         
                for the Horizontal Limits of the site

Exhibit 4:     General Location Map - Bennett's Dump, the        
                Winston-Thomas Facility, Lemon Lane Landfill, 
                Stout's Creek and Clear Creek
                
Exhibit 5:     General Location Map - The Winston-Thomas
               Facility, Clear Creek and Salt Creek

Exhibit 6:     General Location Map - Neal's Landfill, Richland
               Creek and Conard's Branch

Exhibit 7:     Lemon Lane Landfill - Metes and Bounds for the
               horizontal Limits of the site

Exhibit 8:     Neal's Dump - Metes and Bounds for the Horizontal
               Limits of the site
     
Exhibit 9:     Neal's Landfill - Metes and Bounds for the
               Horizontal Limits of the site

Exhibit 10:    The Winston-Thomas Facility - Metes and Bounds for
               the Horizontal Limits of the site

Exhibit 11:    Lemon Lane Landfill - 1958 Topographic Surface 

Exhibit 12:    Dillman Road North Tract Legal Description 

Exhibit 13:    Groundwater Monitoring Protocol: Tables 1, 2 and 3



     The parties herein, the United States of America, for
the Administrator of the United States Environmental Protection
Agency (collectively "the United States"), as plaintiffs; the
State of Indiana and its Environmental Management Board
(collectively the "State"), as intervening plaintiffs; the City
of Bloomington, Indiana (the "City"), and the Utilities Service
Board of Bloomington ("USB"), as plaintiffs; and Monroe County,
Indiana ("County"), as plaintiff; and Westinghouse Electric
Corporation ("Westinghouse"), as defendant; by their respective
attorneys, having consented to the entry of this Consent Decree;
     NOW, THEREFORE, before the taking of any testimony,
upon the pleadings, and without the admission or adjudication
of any issue of fact or law herein, and upon the consent of
the parties hereto, it is ORDERED, ADJUDGED AND DECREED as
follows:

                                 I
                           JURISDICTION

     1. This Court has jurisdiction over the parties and
the subject matter of this action.

                                II

                          BINDING EFFECT

     2. This Consent Decree shall bind and inure to the
benefit of all parties hereto and their respective successors
and assigns, whether elected or appointed.


                               III
                           DEFINITIONS

     3. Whenever the following terms are used in this
Consent Decree, the definitions specified herein shall apply:
     (a) Anderson Road Landfill - means that site
located in Monroe County, Indiana, in the NW 1/4 of Section 25
and the NE 1/4 of Section 25, T.10N., R.1W.. A map of the land-
fill site including metes and bounds of the horizontal extent of
the area to be addressed by this Consent Decree is included in
Exhibit 1 to this Consent Decree.
     (b) Bennett's Dump - means that site located in
Monroe County, Indiana, in the NE 1/4 of Section 30, T.9N.,
R.1W.. A map of the dump site including metes and bounds of the
horizontal extent of the Dump is included in Exhibits 2 and 3 to
this Consent Decree.
     (c) City - means the City of Bloomington, Indiana,
and all of its respective agencies and boards, including the
Utilities Service Board ("USB").
     (d) Clear Creek - means that surface stream which
flows generally in a southerly direction past the Winston-Thomas
Facility and is located as designated in Exhibit 4 to this
Consent Decree.
     (e) Conard's Branch -means that surface stream
which originates near the northwestern side of Neal's Landfill,
flows primarily north to Richland Creek and is located as
designated in Exhibit 6 to this Consent Decree.



     (f) Hazardous waste - means those materials
meeting the definition contained in 42 U.S.C. S 6903(5) and the
regulations promulgated at 40 C.F.R. Part 261.
     (g) Hazardous substance - means those materials
meeting the definition contained in the Comprehensive Environ-
mental Response, Compensation, and Liability Act ("CERCLA"), 42
U.S.C. SS 9601 et sea., S 9601(14).
     (h} Lemon Lane Landfill - means that site located
within the City of Bloomington, Indiana, in the NE 1/4 of Section
31, T.9N., R.1W.. A map of the landfill site including metes and
bounds of the horizontal extent of the landfill is included in
Exhibit 7 to this Consent Decree.
     {I) Material - means any and all matter which
exists in a solid, semi-solid or liquid physical state.
     (j) Neal's Dump - means that site located in Owen
County, Indiana, in the NE 1/4 of Section 12, T.9N., R.4W.. A
map of the dump site including metes and bounds of the horizontal
extent of the Dump is included in Exhibit 8 to this Consent
Decree.
     (k) Neal's Landfill - means that site located in
Monroe County, Indiana, in the SW 1/4 of Section 33 and the SE
1/4 of Section 33, T.9N., R.2W.. A map of the landfill site
including metes and bounds of the horizontal extent of the land-
fill is included in Exhibit 9 to this Consent Decree.
     (l) North Spring - means the water discharge
intermittently emanating from the ground, northwest of Neal's


Landfill site, and located as designated on the map of Neal's
Landfill included in Exhibit 9 to this Consent Decree.
     (m) Polychlorinated Biphenyls ("PCBs") - means any
chemical substance that contains the biphenyl molecule and has
been chlorinated to any degree, or any combination of substances
which contain such substance.
     (n) Richland Creek - means that surface stream
which flows generally in a southwesterly direction and intersects
with Conard's Branch downstream from Neal's Landfill, as
designated on the map included in Exhibit 6 to this Consent
Decree.
     (o) Rock - means any material other than soil or
solid waste which requires blasting, ripping, barring, or wedging
for removal from its original bed, including all pieces of ledge,
bedrock, boulders, or masonry larger than one-half cubic yard in
volume. In addition, at the Bennett's Dump site, rock shall
include any limestone rubble created during the quarrying opera-
tions which was subsequently deposited within the limits of the
Dump.
     (p) Salt Creek - means that surface stream which
flows generally in a southerly direction, into which Clear Creek
flows and located as designated in Exhibit 5 to this Consent
Decree.
     (q) Solid waste - means any garbage, refuse,
sludge from a waste treatment plant, sludge from a water supply
treatment plant, sludge from an air pollution control facility,


and other discarded material, including solid, liquid,
semi-solid, or contained gaseous material and embedded 
soils not naturally placed, resulting from industrial,
commercial, mining, residential and agricultural 
operations, or from community activities;
however, the term "solid waste" does not include:
     (1) Solid or dissolved materials in domestic
sewage, or solid or dissolved materials in irrigation return
flows or industrial discharges, which are point sources 
subject to permits under Section 402 of the Clean Water Act, 
33 U.S.C. S 1342;
     (2) Source, special nuclear, or by-product
material as defined by the Atomic Energy Act of 1954, 42 U.S.C.
55 2011-2296, or natural and accelerator-produced material as
defined by the State;
     (3) Manures or crop residues, returned to the
soil at the point of generation as fertilizers or soil
conditioners as part of a total farm operation;
     (4) Rock; and
     (5) Soil, except as provided herein.
      (r)   Soil - means any materials other than rock or
solid waste including sand, gravel, silt, clay, muck, soft or
disintegrated rock not requiring blasting, barring, or wedging
from their original beds. Soil classification shall be performed
using the Field Identification Procedures of the Unified Soil
Classification System (ASTM D2488-69).
      (s)   South Spring - means the water discharge
intermittently emanating from the ground northwest of Neal's


Landfill site as designated on the map of Neal's Landfill 
included in Exhibit 9 to this Consent Decree.
      (t)   Southwest Seep - means the water discharge
intermittently emanating southwest of Neal's Landfill site as
designated on the map of Neal's Landfill included in Exhibit 9
to this Consent Decree.
     (u)  Stout's Creek - means that surface stream
which flows in a northerly direction past Bennett's Dump as
designated in Exhibit 4 to this Consent Decree.
     (v)  Winston-Thomas Facility - means the inactive
sewage treatment plant owned by the City of Bloomington, Indiana,
and located in the City of Bloomington in the SW 1/4 of Section
16, T.8N., R.1W.. A map of the Winston-Thomas Facility including
metes and bounds of the horizontal extent of the area addressed
by this Consent Decree is included in Exhibit 10 to this Consent
Decree.

                                IV                                      
                PURPOSE AND SUMMARY OF ACTIVITIES
     
     4. The general purpose of the activities to be per-
formed pursuant to this Consent Decree is to excavate and remove
quantities of soils, solid waste and other materials contaminated
with polychlorinated biphenyls ("PCBs") and other associated
materials from six sites in the Bloomington, Indiana area, to
construct an incinerator pursuant to the schedule described in

Section XXII below, and to incinerate said materials in an incin-
erator in order to prevent and mitigate alleged threats to the
public health, welfare and the environment The six sites are
Neal's Landfill, Neal's Dump, Lemon Lane Landfill, Bennett's
Dump, the Winston-Thomas Facility and the Anderson Road Landfill
The duties that Westinghouse shall perform pursuant to this
Consent Decree include the following 
(a)  excavation and removal of materials contaminated with PCBs
     and other materials from the six sites; 
(b)  sediment removal from streams or stream banks  identified in
     paragraph 51; 
(c)  construction of a federal, state and City approved high
     temperature incinerator to incinerate PCBs, associated
     hazardous wastes and solid waste in accordance with the
     requirements of federal, state and local law; 
(d)  transportation to the incinerator and incineration of the
     materials contaminated with PCBs and other materials
     excavated and removed from the six sites; 
(e)  disposal of the ash and other by-products of incineration in
     accordance with the requirements of laws 
(f)  performance of interim remedial measures, including
     monitoring at each of the sites prior to excavation and
     removal;  
(g)  proper closure and maintenance of each site once removal of
     materials contaminated with PCBs and other materials has
     been accomplished; and 
(h)  post-closure monitoring at each of the sites.

                              V
                     INCINERATOR OBLIGATIONS

     5.  Westinghouse acknowledges that incineration of
materials contaminated with PCBs is technically feasible and that
a properly designed, constructed and operated incinerator will
destroy PCBs in the materials to be incinerated under this
Consent Decree to the destruction efficiency required by 40
C. F. R. Part 761 and the requirements of this Consent Decree
           6.  At its expense and as expeditiously as possible,
Westinghouse shall cause to be designed, constructed and
operated a high temperature incinerator to incinerate PCBs
and materials contaminated with PCBs and any hazardous wastes or
hazardous substances associated with those materials.  The
incinerator shall be designed, constructed and operated in
accordance with all applicable requirements of federal, state
and local law {as defined in Section XXI), including but not
limited to the requirements of this Consent Decree and the Toxic
Substances Control Act ("TSCA"), 15 U S C SS 2601 et seq ,
the Resource, Conservation and Recovery Act {"RCRA"), 42
U S C SS 6901 et seq , the Clean Air Act, 42 U S C SS 740l
et seq , the Clean Water Act, 33 U S C SS 1251 et seq , and
regulations thereunder Westinghouse guarantees the performance
of this incinerator in compliance with all applicable federal,
state and local law, including guaranteeing expeditiously to
undertake all redesign, repair or rebuilding which might be
necessary to achieve that performance
     7. (a) At the time of the submission of the permit
applications for the construction and/or design of the incinera-
tor facility pursuant to Section XXII, Westinghouse shall prepare
and submit technical plans for the design and performance
of the incinerator and for ash disposal to the United States,
State and City for their approval. The City shall provide its
initial comments as to the City's assessment of the adequacy of
the technical plans within ninety days of submission of those
plans. In consideration of the mutual promises and obligations
undertaken in this Consent Decree, including but not limited to
the City's provision of solid waste and the City's provision of
real estate, the City may impose additional, more stringent
requirements than contained in the plans if the City determines
that they are necessary to mitigate or prevent an unreasonable
risk of injury to human health or the environment from the design
or performance of the incinerator. The City may impose such
additional requirements provided those requirements are not in
conflict with any state or federal regulation or permit require-
ment. As used here, the term conflict means that it would be
impossible for Westinghouse to comply with both the City and
state or federal regulation or permit. If a conflict exists, the
state or federal regulation or permit shall be controlling.
Westinghouse and the City shall use their best efforts to resolve
as expeditiously as possible any disputes and to minimize any
delays attendant on obtaining City approval of the technical
plans.
     (b) If Westinghouse and the City are unable to
resolve informally any dispute as to the imposition of additional
requirements in a timely manner, Westinghouse shall have the
right to a hearing before the City prior to the imposition of
such additional requirements. The City shall initiate such
hearing within ninety days of receiving Westinghouse's request
for a hearing. The hearing before the City, or a hearing panel
appointed by the City, shall be conducted in accordance with the
adjudicative proceedings of the Model State Administrative
Procedure Act of 1981 of the National Commissioners on Uniform
State Laws. At the conclusion of the hearing, the City or the
hearing panel shall render its decision to impose or not impose
additional requirements. In any event, the City shall render its
decision as to imposition of additional requirements (I) for the
solid waste incinerator, no later than sixty days after the
published proposal of the last state construction permit or
approval necessary for construction of a solid waste incinerator,
and (ii) for the hazardous waste and PCB incinerator, no later
than sixty days after the published proposal of the last federal
or state permit or approval Westinghouse is required to obtain in
order to operate a hazardous waste and PCB incinerator.
     (c) If Westinghouse or any party wishes to
challenge the City's decision, any party to this Decree may seek
judicial review of the City's decision in this Court within
thirty
days of the City's decision. Judicial review shall not be de-
novo and the Court shall not overturn the City's decision unless
it finds that the City's findings of fact are not supported by
substantial evidence in the record before the City.
     (d) Neither the participation of the State or the
United States, nor the lack thereof, in any proceeding before the


City or any judicial review by this Court of the City's decisions
as to additional requirements under this paragraph shall affect
the rights or procedures of the State or the United States in
their respective permit or approval processes.
     8. In addition to monitoring required and authorized
under state and federal law, the performance of the incinerator,
both during test burns and operations, shall be audited and moni-
tored by an independent testing organization. This testing organ-
ization shall be retained by the City, shall be acceptable to
Westinghouse and the City as to technical competence and shall be
paid for by Westinghouse.
     9. The City may require Westinghouse to perform con-
tinuous monitoring of operating conditions at the incinerator,
including but not limited to continuous monitoring of temperature
and dwell time. In addition to any monitoring devices required
and authorized under state and federal law, Westinghouse shall
install and maintain, at its sole cost and expense, devices
external to the incinerator facility for continuous display of
operating conditions determined by the City to be related to
health and safety. The number and types of such external devices
shall be established as determined by the City to be reasonably
necessary and feasible to display operating conditions relevant
to health and safety.
     10. The high temperature incinerator shall consist
of two units, each having a capacity to handle consistently
150 tons per day of mixed solid waste and excavated material
throughput. With these units Westinghouse shall use its

 

best efforts to incinerate all the materials excavated and
transported to the incinerator pursuant to Sections VIII and XI
(estimated at 650,000 cubic yards) within eleven years of
the date that Westinghouse receives all required permits or
approvals to begin incinerating materials contaminated with PCBs.
In no event shall Westinghouse fail to incinerate all of these
materials within fifteen years from the date Westinghouse
receives all required permits or approvals to begin incinerating
materials contaminated with PCBs.
     11. The incinerator shall be designed and operated
to experience a minimum of down time and shall be fully opera-
tional a minimum of 300 days per year. During this minimum
300-day per year period, Westinghouse shall accept solid waste
generated within the City and County of up to 220 tons per day,
regardless of whether the incinerator is operating, and shall
have full responsibility for all further proper handling and
disposal of such solid waste.
     12. When the incinerator is inoperative during the
remaining sixty-five days or less per year {which need not be
continuous), Westinghouse shall maintain storage facilities to
accept up to 600 tons of solid waste prior to refusing to accept
solid waste from the City and County. Thereafter, during these
sixty-five days, the City and County, as the case may be, shall
have the responsibility to dispose properly of such solid waste.
     13. As part of the design, construction and opera-
tion of the high temperature incinerator, Westinghouse shall
design, construct and operate necessary associated facilities
and processes at the incinerator site, including but not limited
to separate storage facilities for solid waste and materials
excavated pursuant to Sections VIII and XI of this Decree,
pollution control devices, site drainage devices, ash collection,
storage and handling equipment, buildings, roadways, parking and
landscaping, so as to ensure safe and efficient operation of the
high temperature incinerator. Westinghouse shall include the
details of these associated facilities and processes in the tech-
nical plans submitted to the United States, State and City for
their approval pursuant to paragraph 7 above and as part of its
permit applications.
     14. As part of its obligations to operate the incinerator,
Westinghouse shall handle, store and dispose of all by-products
of the incinerator operation in accordance with all applicable
local, state, and federal laws and regulations, including but not
limited to the requirements of RCRA and regulations promulgated
thereunder. Westinghouse shall include provisions for handling,
storing and disposing of such solid, liquid or gaseous by-
products, including but not limited to incinerator ash and
pollution control equipment residues in its permit applications
and in the incinerator technical plans submitted to the United
States, State and City for their approval pursuant to paragraph
7 above. To the extent Westinghouse wishes to use facilities in
the City or County to dispose of these solid, liquid or gaseous



incinerator by-products, Westinghouse must meet the requirements
of Section VII of this Decree.
     15. Pursuant to and subject to the terms of Section VI
below: The City and County shall each, through ordinance, direct
that solid waste generated within the City and County, respec-
tively, be delivered to the incinerator site for use as fuel
for the incinerator. If the solid waste supplied by either
the City or County is not usable as fuel, or if either the City
or County is unable to deliver an adequate supply of solid waste
for fuel, Westinghouse shall use as a supplementary fuel supply
gas, oil, coal or other conventional fuels to operate the high
temperature incinerator in accordance with all permits and plan
approvals. Neither the nondelivery of solid waste by the City or
County nor Westinghouse's inability to use the solid waste as
fuel shall relieve Westinghouse of its obligations under this
Consent Decree, including but not limited to the obligation to
incinerate the materials excavated pursuant to Sections VIII and
XI.
     16. The City and County shall each use its best efforts
to assist Westinghouse in the sale of any excess energy (steam or
electricity) which may be generated through operation of the high
temperature incinerator. Failure to obtain customers for such
excess energy or failure of the incinerator to produce such
excess energy shall not relieve Westinghouse of its obligations
under this Consent Decree. To the extent permitted by law, the
City and County shall each purchase steam or electricity produced
by the incinerator if:

 

          (a) the City or County determine in its sole
judgment that it needs such energy: and
          (b) the price charged by Westinghouse is no greater
than the least cost alternative.
     17. Other than materials removed from the sites and
areas identified in Sections VIII and XI and Exhibits 1 through
11 inclusive of this Consent Decree, no hazardous wastes, hazard-
ous substances or materials contaminated with PCBs may be pro-
cessed in the incinerator. This prohibition may be modified with
the express written approval of the United States, State, City
and County to address any future discoveries of materials con-
taminated with PCBs in and around Monroe County.
     18. The transportation of materials excavated from the
sites and areas set forth in Sections VIII and XI and Exhibits 1
through 11 inclusive within the City limits of Bloomington shall
be along routes and at times approved by the City pursuant to a
transportation plan submitted to the City in accordance with
paragraph 45.
     19. In consideration for the undertakings of Westinghouse
under this Consent Decree, and subject to the conditions and
rights set forth herein, the City shall convey in fee simple or
lease to Westinghouse a site of approximately sixteen acres
exclusively for construction and operation of the incinerator and
related activities approved by the City. The legal description of
the site is attached hereto as Exhibit 12. The terms of any lease
shall not be inconsistent with the terms of this Consent Decree,
and any consideration and obligations required under the lease
shall not be  
greater than the consideration and obligations contained in this
Consent Decree.

     20. When all of the materials contaminated with PCBs
and associated hazardous wastes and hazardous substances from
the sites and areas identified in Sections VIII and XI and
Exhibits I through 11 inclusive are incinerated, or at the end of
fifteen years from the date Westinghouse receives all required
permits or approvals to begin incinerating materials contaminated
with PCBs, whichever is first to occur, the City shall have
the following options:
          (a) To purchase the incinerator and all of the
fixtures and personal property associated with the operation of
the incinerator for the fair market value of an incinerator of
nonhazardous solid waste. In such event, Westinghouse shall con-
vey the land described in paragraph 19 to the City at no cost,
or, if the land has been leased, Westinghouse shall return
possession of the land to the City; or;
          (b) To direct Westinghouse to remove from Monroe
County the incinerator and all associated fixtures and personal
property, remove the debris, and convey the land described in
paragraph 19 to the City at no cost, or, if the land has been
leased, to return possession of the land to the City. The land
shall be returned to the City by Westinghouse in a condition
suitable for the same uses that were available at the time
the land was conveyed or leased by the City to Westinghouse.
Westinghouse shall, however, remain responsible for all closure
and post-closure requirements, if any, for the site. In the



event the City directs Westinghouse to remove the incinerator
from Monroe County, Westinghouse shall continue to operate the
incinerator for disposal of nonhazardous solid waste, pursuant to
Sections V, VI and VII of this Consent Decree, for a period of
three years from the time notice is given, to allow the City to
develop and construct alternative disposal facilities.
     21. The City and Westinghouse may reach a mutual
agreement for the disposition and/or operation of the solid
waste incinerator other than as specified above, provided that
such mutual agreement is formally approved by the City after
public hearing.
     22. Except as provided in paragraphs 20 and 21, West-
inghouse shall not transfer or assign ownership, leasehold or
permit rights in the incinerator or the incinerator property, in
whole or in part.

                                VI

           SOLID WASTE SUPPLIED BY THE CITY AND COUNTY

     23. The City and County each have determined that land-
filling of solid waste represents a less desirable environmental
and public health alternative to high temperature incineration.
The City and County enter into this Consent Decree separately,
independent of the obligations and the rights of the other.
     24. Recognizing the public health need for Westinghouse
to dispose of existing areas of PCB contamination and the need
for the City and County each to dispose properly of solid waste,
the City and County, with the authorization and approval of the

 

State, have entered separately into this Consent Decree to
dispose of solid waste generated within their respective bound-
aries primarily through incineration and to provide an adequate
fuel supply for PCB incineration.
     25. To effectuate this Consent Decree and under the
authority of the State, and pursuant to Indiana Code 36-9-30-5,
the City and County shall each through appropriate ordinances,
regulations and all other necessary actions, direct that all
solid waste generated in the City and County, respectively, that
I
capable of incineration shall be delivered to the incinerator
constructed pursuant to Section XXII. In addition, the City and
County shall each bear the responsibility to adopt policies and
regulations to ensure implementation of Sections V, VI and VII of
this Consent Decree.
     26. Commencing no later than thirty days after issuance
of the final operating permit required for the incineration of
solid waste at the Westinghouse incinerator facility, the City
and County shall each deliver and Westinghouse shall accept,
incinerate and/or dispose of solid waste as provided in
paragraph:
27, 28, 29 and 30. However, the City and County have no obliga-
tion to deliver a minimum quantity of solid waste.
     27. The City and County shall each cause to be delivered
all solid waste generated in the City and County, respectively,
that
is capable of incineration except:
          (a) car bodies;
          (b) white goods including refrigerators, stoves,



freezers, water heaters and similar noncombustible domestic
appliances; and
     (c) other metal goods of equivalent size.

The County shall maintain an ancillary landfill for disposal of
nonhazardous waste inappropriate for incineration and for white
goods, as provided for in paragraph 31 below. In the event the
City or County inadvertently delivers materials described in sub-
paragraphs (a-c) above to the incinerator site, the City or
County, as the case may be, shall pick up and dispose of such
materials at its expense. Westinghouse is free to return to the
generator, in accordance with all applicable statutes and regula-
tions and at the generator's expense, any specific waste material
contained in the solid waste which Westinghouse identifies as
hazardous under state or federal law.
     28. Westinghouse shall, at its sole cost and expense,
sort all solid waste it accepts pursuant to paragraph 26 above,
and shall determine whether such solid waste is appropriate for
incineration.
     29. Westinghouse shall utilize all appropriate solid
waste as fuel for the incineration of PCBs, materials
contaminated with PCBs and associated hazardous substances in the
Westinghouse incinerator facility.
     30. Except as provided in paragraph 27, any solid waste
that meets the requirements of paragraph 25 and is subsequently
determined by Westinghouse not to be appropriate for incineration
shall be properly transported and disposed of or recycled by

 

Westinghouse, at its sole cost and expense, in accordance with
all applicable laws and regulations and requirements of the City
and County.
     31. Recognizing that there will be a period of time
before the incinerator can be constructed, that there may be non-
hazardous solid waste that is not suitable for incineration, and
that there will be minimum periods pursuant to paragraph 12 when
the incinerator is not available because of maintenance needs,
the County shall develop and operate, prior to commencement of
operation of the incinerator, ancillary licensed solid waste
landfill facilities to dispose of nonhazardous solid waste as
approved by the State. These ancillary facilities will be
operated solely to dispose of nonhazardous solid waste. The site
for the new landfill facilities may include, but shall not be
limited to, expansion of the existing Anderson Road Landfill or
any other suitable area within the County. The County shall take
all steps necessary, including exercise of eminent domain, to
acquire and develop the site for new landfill facilities.
     32. Recognizing that the solid waste of the City and
County provides a valuable fuel supply for the purpose of
destroying PCBs, and at the same time, that incineration provides
a valuable, environmentally sound disposal service for the solid
waste of the City and County, Westinghouse shall receive a
tipping fee from the City and County which shall consist of the
following:
          (a) For each ton of solid waste that is accepted
at the incinerator site, a fee established by Westinghouse which

 

shall be no more than the tipping fee charged by the County for
disposal at its licensed solid waste disposal facilities. The
tipping fee charged by the County at its facilities shall reflect
recovery of capital and operating costs and shall be reviewed
annually. The current tipping fee charged by the County for
disposal at its licensed solid waste disposal facilities is
seven dollars per ton plus a one dollar entry fee.
          (b) For each ton of solid waste that is disposed
of by incineration, an additional charge of fifty cents per ton,
for Westinghouse to produce an ash which meets the requirements
for nonhazardous ash established by the EPA under RCRA and any
additional requirements to render the ash nonhazardous estab-
lished by the City pursuant to paragraphs 7 and 39(c).
     33. Westinghouse agrees to pay reasonable user charges
for the administration of activities under this Section and
Sections V and VII by the County or City. The user charges shall
be established by the City or County, as the case may be, only
after providing notice to Westinghouse and an opportunity to be
heard.
     34. The local approval functions under this Consent
Decree, including those set forth in paragraphs 7 and 39(c),
shall be performed by the City as provided in paragraph 136.
The City shall provide administrative and technical coordination
and support, to the extent necessary, for City and County perfor-
mance under Sections V, VI and VII of this Consent Decree.


                               VII
                           ASH DISPOSAL

     35. Subject to the written approval of the United
States and State, and at Westinghouse's option, the City shall
make available to Westinghouse for disposal of nonhazardous ash
from the incinerator the City's licensed sludge drying beds and
landfill at its Dillman Road Treatment Facility up to the present
capacity of said Facility. The City and Westinghouse may reach a
mutual written agreement on expansion of the sludge drying beds
and landfill at the Dillman Road Treatment Facility subject to
state and federal approval. If Westinghouse uses the sludge
drying beds and landfill, Westinghouse shall pay the City all
operating and administrative costs associated with permitting and
operating ash disposal activities at those sites. In any event,
Westinghouse shall incinerate at no cost to the City all of the
sludge generated by the Dillman Road Treatment Facility for as
long as Westinghouse operates the incinerator under this Consent
Decree. In addition, Westinghouse shall, at its own cost and
expense, incinerate all of the sludge which had been deposited in
the licensed sludge disposal site prior to commencement of incin-
eration.
     36. In the event that Westinghouse does not use the
sludge drying beds and landfill at the Dillman Road Treatment
Facility for disposal of nonhazardous ash from the incinerator
and in accordance with all applicable statutes and regulations,
            
the City and/or County, as the case may be, shall provide
Westinghouse, at Westinghouse's option, with a licensed solid
waste disposal facility in Monroe County for disposal of non-
hazardous incinerator ash.
     37. Westinghouse shall pay the City and/or County,
as the case may be, the full capital, operating, and admin-
istrative costs associated with licensing, constructing and
operating the facility referenced in paragraph 36.
     38. Notwithstanding paragraphs 35 and 36, Westinghouse
has the option, at its expense, to construct and operate a
licensed solid waste disposal facility in Monroe County for
disposal of nonhazardous incinerator ash generated by the
incinerator. Westinghouse shall exercise its option in a timely
fashion. In such event, the provisions of paragraphs 36 and 37
shall not apply.
     39. Westinghouse may dispose of nonhazardous incinerator
ash from the incinerator pursuant to paragraphs 35, 36 and 38
provided said ash meets the following requirements:
          (a) the ash is tested and determined to be non-
hazardous as determined by federal and state requirements for
classifying nonhazardous waste;
        (b) the concentration of PCBs in the ash is less
than one part per million ("ppm"); and
          (c) the ash meets any additional requirements
imposed by the City as part of the City's review of Westing-
house's technical plans for ash disposal in accordance with
paragraph 7 above.



     40. The failure of the City and/or County to provide
Westinghouse with a nonhazardous ash disposal facility pursuant
to this Section shall not relieve Westinghouse of its obligation
to dispose of the ash generated by the incinerator in accordance
with all applicable requirements of local, federal and state
laws and regulations.
     41. In the event that any of the incinerator ash cannot
be rendered nonhazardous by Westinghouse, Westinghouse shall not
dispose of such ash in the facilities provided by the City and
County pursuant to paragraphs 35 and 36 above. Westinghouse
shall, at its sole cost and expense, properly dispose of such
hazardous ash in any other facility that is licensed by state
and federal authorities to accept such wastes. Such hazardous
ash shall not be disposed of on the incinerator site.

                               VIII

                         REMOVAL MEASURES

     42. As more fully set out in this Section, Westinghouse
shall excavate or otherwise remove and transport for incinera-
tion, in accordance with a removal plan to be proposed by
Westinghouse and approved by the United States, State and City
pursuant to paragraph 45 below, all materials as defined in
Section III above within the horizontal limits described in
Exhibits 2, 3 and 7 through 11 inclusive and to the vertical
limits described in this Section from Neal's Landfill, Neal's
Dump, Bennett's Dump, Lemon Lane landfill, and the Winston-Thomas
Facility. The horizontal and vertical dimensions of the sites

 

described herein may be increased or decreased by agreement of
the United States, State, City and Westinghouse and with approval
of the Court. In addition, Westinghouse shall excavate and
transport for incineration sediments from Conard's Branch,
Richland Creek, Stout's Creek, Clear Creek and Salt Creek as set
forth in paragraph 51 below. Westinghouse shall take measures at
the Anderson Road Landfill as described more fully in paragraph
59(e).
     43. All of the materials excavated or otherwise removed
pursuant to this Section shall be incinerated in the high temper-
ature incinerator constructed and operated in accordance with
Sections V and XXII of this Consent Decree. Any materials not
suitable for incineration (e.g., free water, engine blocks, car
bodies, and other similar materials) shall be disposed of in a
manner approved by the United States, State and City in their
approval of the excavation plan submitted pursuant to paragraph
45. Incineration of excavated materials shall commence within
ninety days of the date of issuance of the last permit or
approval
necessary to allow the incinerator to incinerate materials con-
taminated with PCBs.
     44. Westinghouse shall remove and incinerate materials
from the locations referred to in paragraph 42 in the following
order: the materials stored at the Winston-Thomas Facility pur-
suant to Section XII; Neal's Landfill; Lemon Lane Landfill;
Bennetts Dump; Neal's Dump; and the remainder of the materials
to be removed from the Winston-Thomas Facility. The materials
from the Anderson Road Landfill and the sediments from the
streams listed in paragraph 51 shall be removed pursuant to 
the schedules set
forth in paragraphs 59(e) and 51, respectively. Consistent with
this order of priority, Westinghouse may incinerate materials
from more than one of these sites at one time to improve the
burning efficiency of the incinerator.
     45. No later than sixty days prior to the initiation of
the first trial burn of the incinerator for state or federal PCB
permitting requirements, Westinghouse shall submit to the United
States, State and City for their approval a detailed plan for
excavation of all materials identified in this Section from
Neal's Landfill, Neal's Dump, Bennett's Dump, Lemon Lane
Landfill, and the Winston-Thomas Facility. This plan shall
include excavation procedures, transportation plans, safety
plans, decontamination protocols and implementation schedules.
The United States, State and City shall review the submitted plan
and notify Westinghouse within ninety days of their approval,
objections or comments. Within forty-five days of receipt of any
objections or comments, Westinghouse shall submit for approval a
modified plan, if required, to the United States, State and City,
incorporating or reflecting the objections or comments. Upon
receipt of the notification of approval of the original or
modified plan and all necessary permits from the United States,
State and City, Westinghouse shall immediately begin
implementation of the removal measures in accordance with the
schedule included in the approved plan.
46. Neal s Landfill
     (a) Westinghouse shall excavate and transport for
incineration all materials within the horizontal dimensions iden-
tified in Exhibit 9 and to the vertical dimensions described in
subparagraph (b) below.
     (b) Westinghouse shall excavate and transport for
incineration all solid waste plus an additional two feet of soil
perpendicular to the surface remaining after all solid waste has
been removed, as a "buffer zone." In those areas where there is
less than two feet of soil underlying the solid waste deposit,
Westinghouse shall excavate and transport for incineration all
soil to the bedrock.
     (c) Westinghouse shall conduct sampling or analy-
sis at Neal s Landfill after excavation is completed as specified
in the monitoring program described in Section XIII below and
shall not conduct any further sampling or analysis.
     (d) The parties' present best estimate of the
volume of materials to be excavated fromNeal's Landfill is
320,000 cubic yards.
     (e) Westinghouse shall excavate and transport for
incineration materials from the five sinkholes identified in
Exhibit 9 up to a maximum volume of 2000 cubic yards. In the
event the volume of the five sinkholes is projected to exceed
2000 cubic yards, Westinghouse may, with the consent of the
United States, State and City, under take an alternative reme-
dial plan for the sinkholes.

     (f) Westinghouse shall excavate and transport for
incineration all materials within the horizontal dimensions
identified in Exhibit 9 as Surface Eroded Sediments, to a
depth of three feet. In addition, any solid waste found within
the horizontal dimension beyond the three-foot depth shall be
removed. Westinghouse also shall excavate an additional two feet
of soil perpendicular to the surface remaining after excavation
as a "buffer zone." In those areas where there is less than two
feet of soil remaining between the surface of the excavation and
bedrock, Westinghouse shall excavate to bedrock.
     47. Lemon Lane Landfill
     (a) Westinghouse shall first excavate and
transport for incineration all materials within the horizontal
and vertical dimensions identified in Exhibits 7 and 11.

     (b) Following the completion of excavation de-
scribed in subparagraph (a), Westinghouse shall conduct a
sampling program approved by the United States, State and City as
part of the excavation plan to identify materials contaminated
with PCBs, if any, in concentrations equal to or greater than
fifty ppm in the remaining solid waste and soil. The parties
agree that the protocols currently in "Test Methods for
Evaluating Solid Waste: Physical/Chemical Methods" (EPA SW-846,
2d ed., July 1982) for establishing the extent of contamination
are not applicable to this subparagraph. Westinghouse shall then
excavate and transport for incineration all such materials
identified pursuant to the sampling program.
 

     (c) Upon completion of the sampling program and
any resulting excavation described in subparagraph (b) above,
Westinghouse shall excavate an additional three feet of material,
or to bedrock if less than three feet of material remains between
the excavated surface and bedrock after excavation required in
subparagraphs (a) and (b), as a "buffer zone." Thereafter,
Westinghouse shall conduct sampling or analysis as specified in
the monitoring program described in Section XIII below and shall
not conduct any further sampling or analysis.
     (d) Based on the requirements of subparagraphs (a)
and (c), the parties' present best estimate of the minimum volume
of materials to be excavated from Lemon Lane Landfill is at least
176,000 cubic yards.
48. Bennett's Dump
     (a) Westinghouse shall excavate and transport for
incineration all materials within the horizontal dimensions iden-
tified in Exhibits 2 and 3 and to the vertical dimensions
described in subparagraph (b) below.
     (b) Westinghouse shall excavate and transport for
incineration all solid waste plus an additional two feet of soil
perpendicular to the surface remaining after all solid waste has
been removed, or to bedrock if less than two feet of material
remains between the excavated surface and bedrock, as a "buffer
zone." Westinghouse shall not be required to excavate and remove

 

for incineration any large quarried limestone blocks within the
horizontal dimensions of the site.
     (c) Westinghouse shall conduct sampling or analysis
after excavation is completed as specified in the monitoring
program described in Section XIII below and shall not conduct any
further sampling or analysis.
     (d) The parties' present best estimate of the
volume of materials to be excavated from Bennett's Dump is 55,000
cubic yards.
     49. The Winston-Thomas Facility
     (a) Westinghouse shall remove the water and all
materials in the tertiary lagoon identified in Exhibit 10. Any
water removed shall be treated to a concentration established by
the State and City pursuant to their authority under state and
federal law prior to discharge to the Dillman Road Treatment
Facility.

     (b) After removal of the contents of the tertiary
lagoon, Westinghouse shall remove and transport for incineration
an additional six inches of material fro- the structural surface
(bottom and sides) of the tertiary lagoon as a "buffer zone,"
except within a fifty-foot radius of Boring Hole 14 identified
in Exhibit 10, where Westinghouse shall remove an additional ten
inches of material as a "buffer zone."
     (c) Westinghouse shall excavate and remove all
solid waste (i.e., sludge) and the entire sludge drying beds
within the horizontal dimensions identified in Exhibit 10 and
shall transport these materials for incineration. Westinghouse
 

also shall excavate and transport for incineration an additional
two feet of soil perpendicular to the surface remaining after
all materials have been removed, as a "buffer zone."
     (d) Westinghouse shall remove and transport for
incineration the loose organic material from the trickling filter
media identified in Exhibit 10 by means of a mechanical sieve.
After removal of the organic material, the trickling filter media
shall be redeposited and covered as described in paragraph 56.
     (e) Westinghouse shall excavate and transport for
incineration the contents of the abandoned lagoons within the
horizontal dimensions identified in Exhibit 10 down to the clay
layer beneath the lagoons. Westinghouse also shall excavate and
transport for incineration an additional two feet of soil perpen-
dicular to the surface remaining after the contents of the
lagoons have been removed, as a "buffer zone."
     (f) Westinghouse shall remove and transport for
incineration the solid waste (i.e., sludge} in the digester tanks
and shall flush with water using high pressure sewer cleaning
equipment any sediments remaining in the facility piping system.
All flushings shall be transported to the tertiary lagoon or
other appropriate facility for processing and removal pursuant to
state permits. After the pipes are flushed, Westinghouse shall
plug the pipes except to the extent that such plugging causes
drainage problems.
     (g) Westinghouse shall conduct sampling or analyi-
sis upon completion of the activities described in subparagraphs
(a) through (f) above as specified in the monitoring program

 

described in Section XIII below and shall conduct no further
sampling or analysis.
     (h) The parties' best estimate of the volume of
materials from the Winston-Thomas Facility to be removed and
incinerated is 50,000 cubic yards.
     50. Neal's Dump
     (a) Westinghouse shall excavate and transport
for incineration all materials within the horizontal dimensions
identified in Exhibit 8 down to the till layer, including sandy
materials, if any.
     (b) Westinghouse shall excavate and transport
for incineration an additional two feet of soil perpendicular to
the vertical surface remaining after removal of all materials
pursuant to subparagraph (a) above, as a "buffer zone."
     (c) Westinghouse shall conduct sampling or analysis
after excavation is completed as specified in the monitoring
program described in Section XIII below and shall conduct no
further sampling or analysis.
     (d) The parties' present best estimate of the
volume of materials to be excavated from Neal's Dump is 14,000
cubic yards.
     51. Westinghouse shall remove stream sediments as follows:
     (a) Westinghouse shall excavate those soils and
sediments contaminated with PCBs from the immediate banks of
Conard's Branch for the entire length of the stream as determined
by the United States and State. The total quantity of soils
and sediments which Westinghouse shall be required to remove from

 

the immediate banks of Conard's Branch under this subparagraph
shall not exceed 1,500 cubic yards. The United States and State
shall notify Westinghouse of the areas to be excavated within
sixty days after entry of the Consent Decree. Westinghouse shall
submit an excavation plan for approval of the United States and
State no later than thirty days after receipt of notification
from the United States and State. Westinghouse shall commence
excavation no later than thirty days after receipt of approval of
the excavation plan from the United States and State, weather
permitting, or as soon thereafter as is practicable, but in any
case prior to the removal required under subparagraph (b) of this
paragraph.
     (b) Westinghouse shall remove all sediments within
the banks of the following streams through use of a hydrovacuum:
     (1) for Conard's Branch, the entire length
of the stream from its beginning within Neal's Landfill to its
confluence with Richland Creek (estimated overall length of 4,525
feet);
     (2) for Richland Creek, from twenty-five feet
upstream of its confluence with Conard's Branch to a point 200
feet downstream from said confluence (estimated overall length
of 233 feet);
     (3) for Stout's Creek, from a point twenty-five
feet upstream of the southern boundary of Bennett's Dump as
described in Exhibit 2 to this Consent Decree to a point 500 feet
downstream.

 

of the northern boundary of said Dump (estimated overall length
of 1,455 feet); and
     (4) for Clear Creek, from a point twenty-five
feet upstream of the northern boundary of the Winston-Thomas
Facility to a point 500 feet downstream of the southern boundary
of said Facility (estimated overall length of 2,695 feet).
      (c) In addition to the sediment removal described
above, Westinghouse shall remove those sediments removable
through the use of a hydrovacuum in Richland Creek, Stout's
Creek, Clear Creek and Salt Creek which are identified by the
State, prior to April following entry of the Consent Decree, as
contaminated with PCBs. The total volume of sediments which
Westinghouse shall be required to remove from all streams under
this subparagraph shall not exceed a maximum of 1,100 cubic
yards (excluding stream waters incidentally removed with the
sediments).
     (d) The sediment removal described in subparagraph (b) of
this paragraph shall be performed during the period May through
September following entry of the Consent Decree.
     (e) Westinghouse shall commence and complete
sediment removal for each of the streams specified in
subparagraph (c) of this paragraph during the period May through
September after receipt of their identification by the State as
described in that subparagraph.
     (f)  As soon as practicable following the sediment removal
described in subparagraphs (a), (b) and (c), Westinghouse shall
sample and analyze the stream sediments for PCBs in order to
provide the baseline data upon which the determination under
subparagraph (g) below will be made.  The baseline data shall
consist of the following: For each of the streams, the State
shall identify two representative areas of sedimentation located
downstream from the respective sites such that the selected areas
would be expected to be affected by any significant release of
materials contaminated with PCBs from the site during removal
operations.  Ten samples shall be taken from each of these
indicator sediment areas.
     (g)  After closure of each site pursuant to Section IX of
this Consent Decree, Westinghouse shall remove sediments from one
or more of the streams listed in subparagraph (c) which are
associated with said site under the following conditions:
          (1)  Westinghouse shall sample the same (or comparable)
indicator sediment locations as determined by the State in each
stream after completion of removal and closure procedures at each
site.  At each indicator sediment area, ten samples shall be
taken and analyzed in accordance with subparagraph (f).  If, for
any of the indicator sediment areas for a particular stream, more
than ten percent of the samples taken under this subparagraph
exceed the mean plus two standard deviations of the baseline
sample results for said indicator areas, sediment removal shall
be required for said stream.          
        (2)  If the condition of subparagraph (g)(1) is met for
any stream, Westinghouse shall remove from said stream those
sediments removable through the use of a hydrovacuum which are
identified by the State as contaminated with PCBs.
          (3)  The total amount of sediments required to be
removed by Westinghouse pursuant to this subparagraph shall not
exceed: (i) with respect to Richland Creek, Stout's Creek, Clear
Creek, and Salt Creek, 1,100 cubic yards (excluding stream waters
incidentally removed with sediments); and (ii) with respect to
Conard's Branch, 900 cubic yards (excluding stream waters
incidentally removed with sediments).
     (h)  Sediments removed by Westinghouse under this paragraph
shall be stored prior to incineration pursuant to Section XII.


                         IX

                       CLOSURE     

     52.  Westinghouse shall conduct closure activities at Neal's
Landfill, Neal's Dump, Bennett's Dump, Lemon Lane Landfill and
the Winston-Thomas Facility in accordance with the requirements
set forth below.  No later than six months prior to completion of
excavation at each site, Westinghouse shall submit to the United
States, State and City for their review and approval plans for
the site detailing closure activities, post-closure activities
and schedules of implementation.  The closure and post-closure
plans shall identify how closure and post-closure activities will
be coordinated. These plans shall also include a
program or programs for Quality Assurance and Quality Control.
The Decontamination Protocol, operative during removal activi-
ties, shall be implemented during closure where appropriate.
Westinghouse shall conduct monitoring in accordance with the
requirements of the monitoring provisions set forth in Section
XIII of this Consent Decree. Within sixty days after completion
of closure activities at a site, Westinghouse shall certify by a
principal executive officer of at least the level of vice presi-
dent with responsibility for environmental and regulatory affairs
that closure has been implemented at that site according to the
approved closure plan.
     53. During the closure period, Westinghouse shall per-
form the activities outlined in its closure plan including the
following:
          (a) Close all excavated areas to a grade having a
minimum slope of two percent and a maximum slope of twenty-five
percent without depressions which would cause ponding of water.
To achieve this, Westinghouse shall: first, backfill excavated
areas as necessary with suitable fill materials placed in a
structurally stable manner to maintain the grades required;
second, place over the excavated areas a soil cover capable of
vegetative support to effect a two-foot minimum thickness com-
pacted to a modified proctor density of eighty-five percent.
Suitable fill materials shall be defined as any materials such
as rock, stone, or earth which are not a hazardous waste, a solid
waste or contaminated with PCBs. Westinghouse may petition the
     
 

State for permission to use other suitable fill materials in
accordance with 330 IAC 4-9-1 or its equivalent.
     (b) Implement a surface water, drainage and sedi-
ment control program to prevent or minimize surface water and
sediment run-on and run-off from the site.
     (c) Establish a vegetative cover in all disturbed
areas to provide erosion control. The root growth of the vegeta-
tive cover shall be deep enough to prevent erosion but not
penetrate the clay cap where it exists. If any areas of cover
are left exposed for more than thirty days, they shall be mulched
prior to planting the vegetative cover.
     (d) Maintain the integrity of the fence and signs.

     54. In addition to the requirements set forth in
paragraph 53, at Lemon Lane Landfill, Westinghouse shall install
a compacted clay cover of two-foot minimum thickness in lieu of
the soil cover described in paragraph 53(a) above, with a hy-
draulic conductivity of equal to or less than 1 x 10 -6 cm/second
and a minimum six-inch soil cover sufficient to support shallow-
rooted vegetation.
     55. In addition to the requirements set forth in para-
graph 53, at Neal's Landfill, Westinghouse shall construct a
four-foot thick cap with a hydraulic conductivity of equal to or
less than 1 x 10 -6 cm/second, capable of vegetative support over
those excavated area where residual soils (as opposed to bedrock)
remain. At all other locations at Neal's Landfill requiring cover
Westinghouse shall follow the requirements of paragraph 53.

     56. In addition to the requirements set forth in
paragraph 53, at the Winston-Thomas Facility, Westinghouse shall
install a compacted clay cover only on the trickling filter media
bed. This clay cover shall have a minimum thickness of two feet
and replace the soil cover described in paragraph 53 above. The
clay cover shall have a hydraulic conductivity of equal to or
less than 1 x 10 -6 cn/second and be covered with a minimum six-
inch soil cover sufficient to support shallow-rooted vegetation.
     57. After removal of the contents and "buffer zone"
from the Winston-Thomas Facility tertiary lagoon as described in
paragraph 49(a) and (b} above, Westinghouse shall cover exposed
bedrock, if any, and materials so that there is at least six
inches of materials covering such bedrock. The materials used
for the cover should be equivalent to the materials presently
being used for the lagoon liner and may be obtained locally.

                                X

                     POST-CLOSURE ACTIVITIES

     58. Unless otherwise specified, Westinghouse shall per-
form post-closure activities, other than groundwater monitoring,
until such time as this Decree is terminated. Groundwater moni-
toring shall be conducted in accordance with the requirements of
Section XIII. Westinghouse shall perform the following activities
outlined in its post-closure plan, including the following:
     (a) Maintain the soil cover and vegetation to pre-
vent erosion, and correct the effects of settling and subsidence

 

to maintain proper slope. Westinghouse shall reseed as necessary
and, where there is a clay cap, prevent brush and scrub trees
from taking root. The root growth of the vegetative cover shall
be deep enough to prevent erosion but not penetrate the clay cap
where it exists.
     (b) Continue to prevent surface water run-on and
run-off from eroding or otherwise damaging the soil cover and/or
the soil cover and clay cap, whichever applies.
     (c} Submit an annual post-closure status report
to the United States, State and City detailing those activities
taken during the previous twelve months to comply with this
Section.
     (d) Maintain the integrity of fences and warning
signs until the end of the post-closure period at which time
security fencing and warning signs shall be removed.

                                XI

              INTERIM REMOVAL AND REMEDIAL MEASURES

     59. Unless otherwise specified herein, Westinghouse
shall implement the following interim- removal and remedial
measures in the period prior to the removal of materials con-
taminated with PCBs from each of the sites and areas designated
below and closure of those sites in accordance with Section IX
of this Consent Decree. The interim measures set forth below are
in addition to the measures that Westinghouse has been ordered
to perform at Neal's Landfill and Neal's Dump pursuant to the

 

Stipulation and Order in United States, et al. v. Westinghouse
Electric Corporation, et al., No. IP 83-9-C, and nothing in
this Consent Decree is intended to affect Westinghouse's obliga-
tion to comply with said Stipulation and Order. Westinghouse
shall conduct a monitoring program at each site during the period
prior to removal of materials contaminated with PCBs in accor-
dance with the provisions of the monitoring program set forth at
Section XIII. As part of its obligation under this Section,
Westinghouse shall inspect and maintain each of the interim
measures undertaken at any site, including those measures imple-
mented pursuant to the Stipulation and Order, until such measure
is no longer required under this Consent Decree. Westinghouse
shall submit a general site safety plan for review and approval
by the United States, State and City ten days prior to commence-
ment of any of the interim removal and remedial measures required
under this Section.
     (a) Neal's Landfill 
          (1)(A) Westinghouse shall capture and treat the
combined flows from the South Spring, North Spring and Southwest
Seep up to 1.0 cubic feet per second in accordance with this
Section. Treatment shall be either by a "Lamella"-type sediment
collection system or by activated carbon filtration (or such
other system approved by the United States and State that would
provide treatment equivalent to activated carbon filtration) as
provided below.

 

          (B) Westinghouse shall submit approvable
applications for construction and NPDES permits for the treatment
facility required by this Section within 120 days after entry
of this Decree. Within five months from the issuance by the
State of a construction permit for the treatment facility,
Westinghouse shall construct and place in operation a
"Lamella"-type sediment collection system.
          (C) The "Lamella"-type sediment collection
system shall be operated for the following period of time and
as long as the following conditions are met:
                    (I) The "Lamella"-type sediment collec-
tion system shall be operated for a test period ending on the
date of the initial test burn of the high temperature incinera-
tor. During this test period Westinghouse shall test the
influent and effluent from the facility and shall test the PCB
content of the fish in Conard's Branch. Westinghouse shall sub-
mit a plan for sampling and analysis of the influent, effluent
and fish for the review and approval of the United States and
State within sixty days after issuance of the construction permit
for this facility.
               (ii) After said test period Westinghouse
may operate the "Lamella"-type sediment collection system in lieu
of an activated carbon filter system if test results demonstrate
either of the following conditions:
                    (a) the effluent from the "Lamella"-
type sediment collection system contains PCB concentrations of
less than one part per billion ("ppb"); or
 

          (b) the PCB content of the fish in Conard's Branch is
less than the recommended level of the United States Food and
Drug Administration ("FDA") as determined by sampling consistent
with the approved plan established in sub paragraph (a} (l)
(C}{I).
     (D) If at any time following the test period
and during and after excavation and closure of Neal's Landfill,
the following conditions are found to exist, Westinghouse shall
install an activated carbon filter system (or such other system
approved by the United States and State that would provide treat-
ment equivalent to activated carbon filtration) to treat the com-
bined flows from the South Spring, North Spring and Southwest
Seep up to a flow of 1.0 cubic feet per second:
          (I) the effluent from the "Lamella"-type
sediment collection system contains PCB concentrations exceeding
one ppb for four consecutive sampling periods; and
          (ii) the PCB levels in the fish exceed
the FDA recommended level as determined by sampling consistent
with the approved plan established in subparagraph (a)(l)(C)(I).
     (E) If at any time following the test period
the influent to either the "Lamella"-type sediment collection
system or the activated carbon filter system, as the case may be,
contains PCB concentrations of less than one ppb, based on four
consecutive samples, either treatment system may be shut down
during the period of time that the influent contains PCB con-
centrations of one ppb or less. In any event, the treatment


 

system shall be operated during the first eight weeks of excava-
tion and thereafter, unless Westinghouse demonstrates compliance
with the requirements of this subparagraph.
     {F) Westinghouse shall take samples of
the influent and effluent from the treatment system every
other week up to the start of excavation, weekly during excava-
tion and every other week thereafter until termination pursuant
to subparagraph (H).
     (G)  All sediments collected in the "Lamella"-
type sediment collection system shall be removed as necessary and
shall be transported to the Winston-Thomas Facility for storage
in accordance with Section XII of this Decree until they are
transported to the incinerator for disposal. Any carbon
exhausted in the activated carbon filter system installed pur-
suant to subparagraph {D) shall be stored at the Winston-Thomas
Facility in accordance with Section XII until transported to the
incinerator for disposal or shall be handled in any other manner
consistent with local, state and federal law.
     (H) After closure of the site, monitoring and
treat ent for PCBs in Conard's Branch pursuant to this
subparagraph
may be permanently terminated (I) if the influent to the
treatment
system contains PCB concentrations of less than one ppb, or (ii)
if the PCB concentration in the fish in Conard's Branch is less
than the recommended FDA action level for fish samples taken
during one complete annual hydrologic cycle, or (iii) at the
expiration of five years, whichever is earlier.

 

     (2) Westinghouse shall install erosion control
fencing to enclose the Surface Eroded Sediments area at Neal's
Landfill identified in paragraph 46(f) and shown in Exhibit 9.
     (3) Within forty-five days of the entry of
the Consent Decree, Westinghouse shall post warning signs
reading "Keep Out - Stream May Be Contaminated with PCBs" along
those lengths of Conard's Branch and Richland Creek which are
bordered by pasture land currently owned by Mr. Dale Conard.
Signs
shall be readable from a distance of twenty feet.
(b) Bennett's Dump- 
     (1) Within forty-five days of the entry of
this Consent Decree, Westinghouse shall post warning signs every
200 feet along that length of Stout's Creek bordering Bennett's
Farm and cattle pasture land. The signs shall read "Keep Out -
Stream May Be Contaminated with PCBs" and be readable from a
distance of twenty feet.
     (2) Westinghouse shall remove any PCB capacitors
exposed on the surface of the site and shall store the- pursuant
to Section XII until they are transported to the incinerator for
disposal.
           (3) Westinghouse shall maintain the clay cap
installed by the United States as follows:
               (A) Westinghouse shall fill and vegetate
the eroded portions of the cap along the western edge of the
dump identified in Exhibits 2 and 3; and

 

               (B) Westinghouse shall treat the current
vegetated cap surface to minimize the proliferation of turnips.
     (4) Westinghouse shall install a clay cap along
the western edge of the dump between the currently capped area
and the security fence, as identified in Exhibits 2 and 3, to
dis-
place the currently existing ponded area. This cap shall be
designed to be equivalent to the existing cap installed by the
United States at the site. Prior to the installation of
this cap, the area identified in Exhibits 2 and 3 shall be
cleared of trees and brush. This area shall also be graded
consistent with the contours of the existing clay cap. After
installation of the cap, the area identified in Exhibits 2 and 3
shall be vegetated.
   (c)   Lemon Lane Landfill- 
     (1) Westinghouse shall remove any PCB capac-
itors exposed on the surface of the landfill and shall store
them pursuant to Section XII until they are transported to the
incinerator for disposal.
     (2) Westinghouse shall stabilize the southern
slope of the site identified in Exhibit 7 by grading and covering
in accordance with a plan to be submitted to the United States,
State and City for their review and approval within thirty days
of the entry of the Consent Decree.
     (3) Upon removal and storage of any exposed
PCB capacitors as described in subparagraph (c)(l), Westinghouse
shall add cover to those portions of the landfill with existing
cover depth less than two feet to yield a minimum two-foot soil

 

cover depth. Westinghouse, by agreement with the United States,
State and City, may propose, implement and maintain an alter-
native cover system that provides protection from water infiltra-
tion equivalent to two feet of soil cover.
     {4) Westinghouse shall grade the landfill to
prevent the ponding of water and the severe erosion of soils in
accordance with a plan to be submitted to the United States,
State and City for their review and approval within thirty days
of the entry of the Consent Decree.
      (d) The Winston-Thomas Facility- 
     (1} Within forty-five days of the entry
of this Consent Decree, Westinghouse shall provide the additional
pumping necessary to allow the City to maintain a freeboard of
twenty-four inches in the tertiary lagoon to prevent overflow
in the event of a storm event. The City shall continue to pump
the lagoon daily to the Dillman Road Treatment Facility at an
average rate of up to fifty gallons per minute. Any discharge to
the Dillman Road Treatment Facility shall meet applicable state
and local pretreatment requirements. Westinghouse shall pay for
any additional pumping in excess of an average rate of fifty
gallons per minute that may be necessary. This Section does not
address draw down of liquid in the tertiary lagoon as provided in
Section VIII of the Consent Decree.
     12) Westinghouse shall continue to maintain
existing warning signs and security fencing at the site.

 

  (e) The Anderson Road Landfill

     (1) During the period May to September
following entry of the Consent Decree, Westinghouse shall exca-
vate all materials to the clay layer, a depth of approximately
4.2 feet, from the area identified as "A" in Exhibit 1.
Westinghouse shall excavate an additional two feet of soil or
three feet of solid waste perpendicular to the surface remaining
after all of the material has been removed from area "A,' as a
"buffer zone."
     (2) Westinghouse shall transport any water from
the pond identified in Exhibit 1 to the Winston-Thomas Facility
tertiary lagoon for processing with the lagoon water. After
removal of the water from the pond, Westinghouse shall remove up
to three feet of silt, or as much silt as exists in the pond,
whichever is less, from the bottom of the pond.
     (3} Westinghouse shall remove two feet of
soil beneath the berm and throughout the area identified as "U"
in Exhibit 1, except for the pond in area B which is addressed in
subparagraph (e)(2).
     (4) Westinghouse shall remove three feet of
soil beneath the berm and throughout the area identified as "C"
in Exhibit 1.
            (5) Following excavation, Westinghouse shall:
               (A) Regrade or backfill all excavated
areas, including the pond, to a grade having a minimum slope of
two percent and a maximum slope of twenty-five percent using
 

suitable fill materials. Suitable fill materials shall be
defined as any materials such as rock, stone, or earth which are
not a hazardous waste, a solid waste or contaminated with PCBs
placed in a structurally stable manner to maintain the minimum
grades required. Westinghouse may petition the State for per-
mission to use other suitable fill materials in accordance with
330 IAC 4-9-1 or its equivalent; and
     (B) Following installation of the final clay
cap by the County, Westinghouse shall place over these same areas
a soil cover of two-foot minimum thickness compacted to a
modified
proctor density of eighty-five percent capable of vegetative sup-
port, and seed the areas to enhance surface water drainage and to
minimize erosion.
     (6) The excavated materials shall be stored at
the Winston-Thomas Facility in accordance with Section XII until
they can be transported to the incinerator for disposal.

                               XII
          INTERIM STORAGE OF MATERIALS CONTAINING PCBs

     60. Westinghouse shall comply with the requirements
of 40 C.F.R. 5 761.65(b) and 320 IAC 7 with respect to interim
storage of materials containing PCBs from Neal's Landfill, Neal's
Dump, Bennett's Dump, Lemon Lane Landfill, the Anderson Road
Landfill, the Winston-Thomas Facility and streams identified in
paragraph 51 prior to incineration. Sixty days prior to the
commencement of storage, Westinghouse shall submit a plan for




the design and locations of any PCB storage facilities to the
United States, State and City for approval. The plan shall be
consistent with the provisions of this Section. The United
States, State and City shall return comments to Westinghouse
within thirty days of receipt of the plan, and Westinghouse shall
implement the plan as amended by comments within thirty days
thereafter.
     61. Specifically, Westinghouse may store capacitors at
the incinerator building or other structures at the Winston-
Thomas Facility that meet the following requirements:
     (a) the floor shall have a continuous minimum
six-inch high curbing and shall be large enough to contain
twenty-five percent of the total volume of the stored capacitors;
     (b)  the floor shall contain no drain valves, floor
drains, expansion joints, sewer lines, or other openings that
would permit liquids to flow from the curbed area described in
subparagraph (a);
     (c) the roof and walls shall be adequate to pre-
vent rainwater from reaching the stored capacitors;
     (d) the floor and curbing shall be continuous,
smooth and impervious;
     (e) the facility shall be located above the one
hundred-year floodwater elevation; and
     (f) Westinghouse shall inspect the storage facil-
ity and the stored capacitors every thirty days, in accordance
with 40 C.F.R. S 761.65(c)(5) and 320 IAC 7, and shall report the


 

results of the inspection to the United States, State and City
within thirty days of completion of the inspection.
     62. Westinghouse also may store materials containing
PCBs removed from the sites and streams covered by this Decree
other than capacitors dealt with in paragraph 61 above, at the
Winston-Thomas Facility as follows:
     (a} materials shall be stored at a location above
the one hundred-year floodwater elevation;
     (b) materials shall be stored in a facility
designed in a manner consistent with the requirements of 40
C.F.R. S 761.65(b) and 320 IAC 7 including: an adequate roof and
walls to prevent rainwater from reaching the stored materials
containing PCBs, a floor constructed of impervious materials with
continuous curbing sufficient to contain twenty-five percent of
the total volume of materials stored therein and containing no
drain valves, floor drains, expansion joints, sewer lines, or
other openings that would permit liquids to flow. Nothing herein
shall preclude Westinghouse from submitting a plan for a
facility; that is an air support building or building with canvas
walls for; the approval of the United States, State and City
pursuant to this paragraph.
     63. In the event Westinghouse chooses to remove the
sludge from the Winston-Thomas Facility tertiary lagoon before
the commencement of incineration, Westinghouse shall submit a
plan for the removal of such sludge to the United States, State
and City for approval. Westinghouse also shall submit a separate
plan for the interim storage of such sludge to the United States




and State for approval. Said interim storage plan shall comply
with the requirements of 40 C.F.R. S 761.65(b) and 320 IAC 7 or
provide environmental protection equivalent to those requirements
and may include the storage of the sludge on the Winston-Thomas
Facility sludge drying beds. If the interim storage plan is not
approved by the United States or State, the sludge shall remain
in the tertiary lagoon for the interim storage period.
     64. With respect to materials described in paragraphs
62 and 63 of this Section, Westinghouse shall inspect stored
materials containing PCBs every thirty days and shall report
the results of the inspection to the United States, State and
City within thirty days of completion of the inspection.
     65. Westinghouse may store the materials described
herein until one year after Westinghouse begins incineration of
excavated materials pursuant to Sections VIII and XI of this
Consent Decree. In consideration for the use of the Winston-
Thomas Facility, including the incinerator building and other
structures, Westinghouse shall pay rental to the City in the
amount of $900,000, $225,000 payable thirty days after entry
of the Consent Decree and $225,000 annually thereafter for three
years. In addition, costs necessary to comply with the require-
ments of this Section shall be borne by Westinghouse.
     66. Westinghouse shall preserve and maintain all
records related to its performance pursuant to this Section in
accordance with 40 C.F.R. S 761.180 and 320 IAC 7 for a period of
five years after all materials containing PCBs have been removed
from storage.



     67. The United States and State have determined that
the obligations and procedures required of Westinghouse under
this Section are consistent with the authority of the United
States and State under applicable law to establish appropriate
remedial measures for the sites and areas covered by this Consent
Decree.
     68. Westinghouse shall undertake all required closure
and post-closure activities with respect to the facilities
described in this Section and pay the expenses thereof.

                               XIII
               GROUNDWATER MONITORING PROTOCOL

     69. The purpose of the groundwater monitor protocol is
to:
     (a) refine knowledge of the hydrogeologic conditions
at those sites where it is needed;
     (b) monitor the sites before remediation to
determine PCB baseline data for each site; and
     (c) confirm the adequacy of the remediation and
demonstrate the acceptability of the final conditions at each of
the sites such that active controls are no longer needed.
      70. The following sites are covered by this protocol:
     (a) Neal's Landfill;
     (b) Neal's Dump;
     (c) Lemon Lane Landfill;
     (d) The Winston-Thomas Facility; and
     (e) Bennett's Dump.

The protocol shall apply during the period of time commencing 120
days following entry of the Consent Decree and terminating as
described in paragraphs 79, 80 and 81.
     71. During each well monitoring event as scheduled in
Table 1 in Exhibit 13, Westinghouse shall perform the following
activities:
     (a) Westinghouse shall collect a water sample in
accordance with procedures approved by the United States, State
and City and shall analyze such sample for PCBs to a detection
level of 0.1 ppb in accordance with the requirements of "Test
Methods for Evaluating Solid Waste: Physical/Chemical Methods"
(EPA SW-846, 2d ed., July 1982) analytical method 8080, or any
lower detection level established by a method promulgated by EPA
{collectively referred to as "detection level").
     (b) Westinghouse shall measure and record the
following field data at each well location:
          (1) water level;
          (2) water temperature;
          (3) pH; and
          (4) specific conductance.
          (5) Unless otherwise specified, all raw data,
data compilations and water table maps from well sampling shall
be submitted to the United States, State and City within sixty
days from the date of the particular field activity.
     72. Westinghouse shall conduct a well water user survey
within 120 days of the entry of this Consent Decree to identify
the location (street address and owner) of private wells
currently
used for commercial or residential purposes within a 5000-foot
radius from the boundary of each of the following sites: Neal's
Landfill, Lemon Lane Landfill, the Winston-Thomas Facility and
Bennett's Dump. Westinghouse may make use of any well user infor-
sation compiled by other parties to the Decree. The results of
the survey shall be submitted to United States, State and City.
     73. Within thirty days of receipt of Westinghouse's
well survey conducted pursuant to paragraph 72 above, the City
shall notify the well owners identified therein of the provisions
of this Decree relating to an alternative potable water supply
source. At Westinghouse's expense, and with the consent of each
well owner, the City shall sample each well identified pursuant
to the survey described in paragraph 72 above according to the
protocol described in paragraph 71(a). If PCBs are found in any
of the surveyed wells at the detection level, Westinghouse shall
immediately implement the requirements of paragraph 78 below.
     74. Westinghouse shall select or install monitoring
wells in accordance with the following:
          (a) Onsite Wells
               (1) Neal's Landfill, Neal's Dump, and Lemon  
                     Lane Landfill
                         Within sixty days of entry of the
Consent Decree, Westinghouse shall submit a plan for approval of
the United States, State and City designating onsite monitoring
wells at the above sites. The number of onsite wells for each
of these sites is shown on Table 2 in Exhibit 13. The United
States, State and City may require Westinghouse to increase the
number of onsite wells for these sites up to forty percent of the
number shown on Table 2 in Exhibit 13.
     (2)  Bennett's Dump and the Winston-Thomas Facility
          Within sixty days of the entry of this
Consent Decree, Westinghouse shall submit a plan for approval by
the United States, State and City describing the proposed
supplemental groundwater investigation at these sites. The pro-
posal shall include well locations and depths, drilling methods,
procedures for detailed lithologic descriptions of rock and soil
units penetrated, well completion details and sampling schedules.
consistent with the number and frequency of sampling events
designated in Table 3 in Exhibit 13. The results of this
investigation shall be used in the selection and installation of
onsite monitoring wells for these sites. Within ninety days of
completion of the investigation, Westinghouse shall submit a plan
for approval by the United States, State and City designating the
location of onsite wells for monitoring at these sites. The
number of onsite wells at these sites are designated in Table 2
in Exhibit 13. The United States, State and City may require
Westinghouse to increase the number of monitoring wells for these
sites up to forty percent of the number shown on Table 2 in
Exhibit 13.
     (b) Offsite Wells 
     Westinghouse shall install offsite wells
around each site other than Neal's Dump. The total number of


offsite wells (Tiers 1, 2 and 3) for each site is designated
in Table 2 in Exhibit 13. These offsite wells shall be located
within a 5000-foot radius from the boundary of each site. The
United States, State and City may require Westinghouse to
increase the number of offsite wells for each site up to forty
percent of the number designated in Table 2 in Exhibit 13. The
locations of all offsite wells shall be selected based on the
preferential flow of groundwater from each site, the lithologies
representative of the groundwater system at each site, results of
the private well user survey and monitoring completed to date at
each site.

          (1) Tier 1 Wells
     Within 150 days of entry of the Consent
Decree, Westinghouse shall submit a plan for approval by the
United States, State and City describing the proposed locations,
bases for locations and the hydrologic zones of influence of the
Tier 1 offsite wells for Neal's Landfill and Lemon Lane Landfill.
Tier 1 wells are those adjacent to and within a 1000-foot radius
from the boundary of each site. Within thirty days of completion
of the supplemental groundwater investigation at the Winston-
Thomas Facility and Bennett's Dump described above, Westinghouse
shall submit a plan for approval by the United States, State and
City describing the proposed locations, bases for locations and
the hydrologic zones of influence of the Tier 1 offsite wells at
each of these sites. Within 120 days of receipt of approval of
each of the well location plans described above, Westinghouse



shall construct and develop the Tier 1 wells and initiate four
consecutive weekly readings of water levels in each onsite and
Tier 1 well. This water level data shall be used in siting the
Tier 2 wells.
          (2) Tier 2 Wells
              Within forty-five days of completion of
the sampling described in subparagraph (b)(l) above, Westinghouse
shall submit a plan of proposed well locations, bases for loca-
tions and the hydrologic zones of influence for the Tier 2
offsite
wells, to be installed or located within a radius of 1000 to 2500
feet from the boundary of each site. Within sixty days of
receipt of approval from the United States, State and City,
Westinghouse shall construct and develop the Tier 2 wells and
initiate four consecutive weekly readings of water levels in
each onsite, Tier 1 and Tier 2 well. This water level data shall
be used in siting the Tier 3 wells.
          (3) Tier 3 Wells
              Within forty-five days of completion of
the sampling described in subparagraph (b)(2) above, Westinghouse
shall submit a plan of proposed well locations, bases for loca-
tions and the hydrologic zones of influence for Tier 3 offsite
wells to be installed or located within a radius of 2500 to 5000
feet from the boundary of each site. Within sixty days of
receipt of approval from the United States, State and City,
Westinghouse shall construct and develop the Tier 3 wells and
shall take a set of samples in accordance with paragraph 71.

 
        75. Westinghouse shall monitor the onsite and offsite
wells in accordance with the frequency described in Table 1 in
Exhibit 13. However, to establish a baseline for the purpose of
demonstrating termination of monitoring pursuant to paragraph 79
and increased monitoring pursuant to paragraph 76, Westinghouse
shall, prior to commencement of removal activities at each site,
take a minimum of fifteen groundwater samples at each onsite well
pursuant to paragraph 71 and at the frequency specified in Table
1 in Exhibit 13 or at a greater frequency selected by Westing-
house (but not more than once per month) and analyze each sample
for PCBs (hereinafter "baseline").
     76. Increased Monitoring At Onsite Wells
          (a) Prior to removal activities pursuant to
Section VIII at a site, there will be no increased monitoring at
onsite wells at that site. Monitoring shall be conducted as
described in Table 1 in Exhibit 13.
          (b) During the removal, closure and post-closure
periods , Westinghouse shall complete its analysis of samples of
onsite wells within fourteen days of the taking of the sample.
If the PCB concentration at a particular onsite well exceeds the
mean of the baseline samples as described in paragraph 75 above
plus one standard deviation for that well ("action level"),
Westinghouse shall immediately take a second sample and complete
the analysis within seven days of receipt of the results of the
first sample. If the PCB concentration of the second sample
exceeds the action level, Westinghouse shall increase its

 

sampling frequency at that particular well and at any Tier I off-
site well within the preferential flow path of the onsite well
as proposed by Westinghouse and approved by the United States,
State and City to once per week. If at any time subsequent to
triggering the increased monitoring, the concentration of PCBs
detected in the onsite well decreases to at or below the action
level, Westinghouse shall take two additional weekly samples from
the onsite well and the Tier 1 offsite wells in the preferential
flow path. If those sample results also indicate concentrations
below the action level, Westinghouse shall reinstitute the
sampling frequency described in Table 1 in Exhibit 13. If the
sample results indicate PCB concentrations above the action
level, weekly sampling shall continue.
     (c) If the sampling results at an onsite well
indicate PCB concentrations in excess of the mean of the
baseline: sample plus two standard deviations, Westinghouse shall
not take a second sample but shall immediately commence weekly
sampling of that onsite well and any Tier 1 wells at that site.
     77. Increased Monitoring at Offsite Wells
     (a) Westinghouse shall complete its analyses of
samples of offsite wells within fourteen days of the taking of
the samples. If during the interim measures, removal, closure or
post-closure periods, the analysis at a Tier 1 offsite well indi-
cates a PCB level equal to or greater than the detection level
established pursuant to paragraph 71(a), Westinghouse shall imme-
diately take two follow-up samples from that well. Westinghouse

 

shall analyze the second sample for PCBs within five days of
receipt of the results of the first sample. If that analysis
indicates a PCB concentration level equal to or greater than the
detection level described in paragraph 71(a), Westinghouse shall
within ten days identify for approval by the United States, State
and City the Tier 1 (other than the indicator well) and Tier 2
offsite wells that are along the preferential flow path of the
indicator well. Upon receipt of approval, Westinghouse shall
immediately initiate weekly sampling of those wells until two
consecutive sets of samples from each of the wells indicate PCB
concentration levels below the detection level. At that time,
the monitoring frequency specified in Table 1 in Exhibit 13 shall
be reinstituted at the wells. If the analysis at a Tier 2 off-
site well indicates a PCB level equal to or greater than the
detection level, Westinghouse shall implement the procedures for
identifying and conducting increased monitoring described in this
paragraph for each of the Tier 3 offsite wells that are along the
preferential flow path of the indicator well.
     (b) If the analysis of the second sample does not
indicate a PCB concentration equal to or greater than the detec-
tion level, Westinghouse shall analyze the third sample for PCBs
within five days of receipt of the results of the second sample.
If the analysis of the third sample does indicate a PCB con-
centration equal to or greater than the detection level,
Westinghouse shall implement the procedures for identifying and
conducting the increased monitoring described in this paragraph

 

until two consecutive sets of samples from each of the offsite
wells within the preferential flow path of the indicator well ,
indicate PCB levels below the detection level. At that time, the
monitoring frequency specified in Table 1 in Exhibit 13 shall be
reinstituted. If neither the second nor third samples indicate a
PCB concentration equal to or greater than the detection level,
Westinghouse shall continue monitoring in accordance with the
frequency specified in Table 1 in Exhibit 13. The obligations
of Westinghouse under this paragraph shall terninate within the
hydrologic zone of influence around a particular offsite moni-
toring well once Westinghouse has provided a temporary alter-
native potable water supply source in accordance with provisions
of paragraph 78 below.
      78. Alternative Potable Water Supply Source
     (a) If the concentration of PCBs in any offsite
well is equal to or greater than the detection level as defined
in paragraph 71(a) above, Westinghouse shall immediately take a
follow-up sample. This sample shall be analyzed foe PCBs within
five days of receipt of the results of the first sample. If the
analysis of this sample indicates a PCB concentration equal to or
greater than the detection level, Westinghouse shall initiate the
action described in this paragraph. If this sample does not
indicate a PCB concentration level equal to or greater than the
detection level, Westinghouse shall collect and analyze a third
sample within five days of receipt of the results of the previous
sample. If the concentration of the third sample is equal to or

greater than the detection level, Westinghouse shall undertake
the action described in this paragraph. If neither follow-up
sample indicates PCB concentrations equal to or greater than the
detection level, no further action will be required by 
Westinghouse under this paragraph.
     (b} Within ninety days of confirmation by means
of the second and/or third sample that the PCB concentration at
the Tier 1, 2 or 3 monitoring wells is equal to or greater than
the detection level, Westinghouse, with the consent of the pri-
vate well owner, shall provide a permanent alternative potable
water supply source to all private well users within a hydrologic
zone of influence of the affected well or wells identified by
Westinghouse and approved by the United States, State and City.
If Westinghouse provides a connection to a public water supply
system it shall only pay the cost of the connection to the sys-
tem. If Westinghouse provides a carbon or equivalent treatment
system at the user's residence or establishment, it shall pay
both the cost of installation and the cost of ongoing maintenance
of the treatment system. Westinghouse shall notify in writing
the owner and/or user of the wells within five days of confir-
mation of the analytical results that a permanent alternative
potable water supply source shall be provided in accordance with
the provisions of this paragraph. During the ninety-day interim
period prior to provision by Westinghouse of the permanent alter-
native potable water supply source, Westinghouse shall provide,
at its expense, a temporary potable water supply to all well
 

users who have consented to receive a permanent alternative
potable water supply source.
     {c) If, prior to the termination of this Consent
Decree, a new proposed private well user locates within the
hydrologic zone of influence of an affected well described above
and proposes to or is required to use a legally sited water well,
Westinghouse shall provide, with the consent of the well owner, a
permanent alternative potable water supply source for domestic
use and/or human consumption to that new residence or commercial
establishment within ninety days of receipt of notice by the City
of the existence of the new well user.

     {d) Once Westinghouse has supplied an approved
permanent alternative potable water supply source pursuant to
this paragraph, Westinghouse may terminate monitoring at the
affected offsite monitoring wells and any other offsite
monitoring wells within the hydrologic zone of influence of the
affected offsite monitoring wells. Westinghouse shall continue to
monitor the remaining offsite monitoring wells within the
preferential flow path of the affected offsite monitoring wells
weekly until two consecutive sets of samples from each of these
offsite monitoring wells indicate PCB levels below the detection
level at which time the monitoring described in Table 1 in
Exhibit 13 shall be reinstituted.
     79. If after five years following closure of each site,
Westinghouse can demonstrate that the following conditions have
been met at a particular onsite well, Westinghouse shall be

 

entitled to terminate the monitoring program at such well. The
conditions for termination are as follows:   
     (a) Westinghouse shall compute the mean con-
centration of PCBs for each onsite well based on the baseline
samples described above in paragraph 75. This mean PCB con-
centration shall be used as the "monitoring termination
criterion"
to assess whether monitoring may be terminated.
     (b) After the first five years of closure, if as
a result of scheduled monitoring, Westinghouse can demonstrate
that (1) the mean concentration for PCBs at each onsite well
during the five-year period following closure is less than or
equal to the monitoring termination criterion, (2) the mean con-
centration for PCBs of the last ten samples at each onsite well
is equal to or less than the mean of the monitoring termination
criterion, and (3) the concentration for PCBs for each of the
last two samples at each onsite well is equal to or less than the
monitoring termination criterion, Westinghouse shall be entitled
to terminate monitoring at that well. During this five-year
period, Westinghouse at its sole option may increase the minimal
frequency of sampling to no greater than once a month. If
Westinghouse cannot make the demonstration, Westinghouse shall
continue the scheduled monitoring and shall review the results
annually until it can demonstrate compliance with the criteria
described in this subparagraph.
     80. Five years after the closure of each site,
Westinghouse may terminate monitoring of any Tier 1, 2 or 3

 

offsite well (other than those offsite wells at which monitoring
has previously terminated because Westinghouse has provided an
approved permanent alternative potable water supply source) if
the results of PCB analyses of each well are below the detection
level defined in paragraph 71(a). If Westinghouse cannot meet
these criteria for any offsite well, it shall continue to monitor
said well in accordance with Table 1 in Exhibit 13 until
Westinghouse can demonstrate compliance with these criteria.
     81. Monitoring at a given site shall terminate no later
than thirty years after closure of that site.
     82. Subject to the Covenant Not to Sue (Section XXIII
herein), provision by Westinghouse of a permanent alternative
potable water supply source in compliance with the requirements
of this Section shall be the exclusive civil or administrative
remedy available to the United States, State, City and County
against Westinghouse to remedy the problem of PCB-contaminated
groundwater for domestic use and human consumption within the
5000-foot radius of the boundaries of Neal's Landfill, Lemon Lane
Landfill, the Winston-Thomas Facility and Bennett's Dump.

                               XIV

                            REPORTING

     83. Westinghouse shall submit written progress reports
to the persons designated in Section XV of this Consent Decree,
other than the Department of Justice, concerning the actions
undertaken by Westinghouse pursuant to this Consent Decree

 

within ten days after the first day of each calendar quarter
during which such activities are in progress. Upon the comple-
tion of any activities required under this Consent Decree,
Westinghouse shall submit a final written report to the persons
designated in Section XV certifying that such activities have
been completed in full satisfaction of the requirements of this
Consent Decree.

                                XV

                      PARTIES TO BE NOTIFIED

     84. Whenever, under the terms of this Consent Decree,
a report, notice, approval, or other document is required to be
forwarded by one party to another, it shall be sent to the per-
sons at the addresses specified below, unless those persons or
their successors give notice in writing to the other parties of
another person designated to receive such communications or
another address or unless it is otherwise specifically stated in
this Consent Decree.
     (a) As to EPA:                Director, 
                                   Waste Management Division 
                                   United States Environmental
                                   Protection Agency, Region V
                                   230 South Dearborn Street
                                   Chicago, Illinois 60604
     
     (b) As to the U.S.            Assistant Attorney General
         Department of Justice:    Land and Natural Resources
                                   Division
                                   U.S. Department of Justice
                                   Washington, D.C. 20530
     
     (c) As to Indiana:            Technical Secretary
                                   Environmental Management Board
                                   State Hoard of Health Building
                                   1330 West Michigan
                                   Indianapolis, Indiana 46204
     


     (d) As to the City:           Director
                                   Utilities Service board
                                   City of Bloomington
                                   P.O. Box 1216
                                   Bloomington, Indiana 47402
     
     (e) As to the County:         Monroe County Board of Health
                                   119 West Seventh Street
                                   Bloomington, Indiana 47401
     
     (f) As to Westinghouse:       Bloomington Project Manager
                                   Waste Technology Services
                                   Division
                                   Westinghouse Electric Corp.
                                   P.O. Box 286
                                   Madison, Pennsylvania 15663

                               XVI
                        ACCESS AND RECORDS

     85. The United States, its employees, contractors,
consultants and other authorized representatives, and authorized
representatives of the State, City and County shall have the
authority to enter Neal's Landfill, Neal's Dump, Bennett's Dump,
Lemon Lane Landfill, the Winston-Thomas Facility, the Anderson
Road Landfill and the incinerator site for the following
purposes:
(1) inspecting and copying (at the requesting party's expense}
records, operating logs, drawings, plans or other documents in
any way relating to any activity undertaken pursuant to this
Consent Decree; (2} monitoring the progress of Westinghouse in
designing, constructing or otherwise implementing plans and
carrying out any activities pursuant to this Consent Decree; (3)
collecting samples from any of the designated sites or surround-
ing areas; (4} verifying any data or information submitted by
Westinghouse pursuant to this Consent Decree; and (5) for any
other purpose related to assuring compliance by Westinghouse with
the requirements of this Consent Decree. Westinghouse shall
honor all reasonable and timely requests for such entry and
inspection by the United States, State, City and County con-
ditioned only upon presentation of proper credentials. The
United States, State, City and County shall use their best
efforts to coordinate arrangements for any entry or inspection
with Westinghouse.
     86. All records, logs, drawings or other documents
concerning the design, construction or operation of the high
temperature incinerator or the implementation of any related
activities and all other documents related to Westinghouse's
performance pursuant to this Consent Decree shall be maintained
and preserved by Westinghouse for a period of at least five
years after completion of the incineration of all PCBs, materials
contaminated with PCBs and associated hazardous substances and
disposal of all incineration by-products from such materials pur-
suant to this Consent Decree, except that all records pertaining
to groundwater monitoring shall be maintained and preserved
throughout the post-closure period. Westinghouse shall provide
duly authorized representatives of the United States, State, City
and County with access to all design, construction and operation
records, logs, drawings or other documents concerning the high
temperature incinerator or the implementation of any related
activities and all other documents related to Westinghouse's per-
formance under this Consent Decree, at all reasonable times

 
upon oral or written request by the authorized representative,
subject to the provisions of Section XXIX.
     87. The City shall provide unrestricted access, to the
extent of its ability, to Lemon Lane Landfill, to those portions
of the Dillman Road Treatment Facility used for activities under
this Consent Decree and to the Winston-Thomas Facility to
Westinghouse, its employees, contractors and consultants, and
authorized representatives of the United States and State,
including contractors and consultants. The County shall provide
unrestricted access, to the extent of its ability, to the
Anderson Road Landfill to Westinghouse, its employees, contrac-
tors and consultants, and authorized representatives of the
United States and State, including contractors and consultants.
     88. All parties to this Consent Decree undertake to use
their best efforts to secure access for Westinghouse to all sites
and areas set forth in this Consent Decree.
     89. Nothing in this Consent Decree shall be construed
so as to limit any entry or inspection authority the United
States or State may otherwise have pursuant to any federal or
state laws or regulations.
                                 

                               XVII

                       ON SCENE COORDINATOR

     90. The United States may designate an On Scene Coor-
dinator ("OSC") for the sites and areas (other than the incinera-
tor site) which are the subject of this Consent Decree, and may
designate other representatives, including EPA employees, or



federal contractors or consultants, to observe and monitor the
progress of any activity on any of the said sites and areas 
undertaken pursuant to this Consent Decree. The OSC shall have
the authority to direct Westinghouse to cease performance of any
activity or any portion of any activity which in the opinion of
the OSC may or does present an endangerment to public health,
welfare, or the environment, or which may create a release
(actual or threatened) as that term is defined in CERCLA, of a
hazardous substance to the environment. In the event the OSC
does direct a cessation or suspension of any activity, the OSC
then shall have the authority to direct Westinghouse to implement
or perform in accordance with the OSC's instructions such correc-
tive measures as may be necessary to avoid or mitigate the
endangerment or release (actual or threatened) which he believes
is occurring or may occur. Any direction or other request by the
OSC, and the reasons therefor, shall be communicated in writing
to all parties to this Consent Decree within a reasonable time of
issuance of such direction. Nothing in this Section shall be
construed to limit the authority of the OSC under the National
Contingency Plan, 40 C.F.R. Part 300.
     91. Westinghouse shall immediately cease any activity
or portion thereof which the OSC directs orally or otherwise to
be stopped and shall immediately perform any corrective measures
directed by the OSC, subject to the following. If Westinghouse
objects to any direction by the OSC on the ground that the same
is not necessary to avoid or mitigate an endangerment or a
release
 
(actual or threatened) or that it involves significant activities
not contemplated by this Consent Decree, Westinghouse (after
first seeking to consult with the OSC and with the United States
to attempt to resolve the matter) may immediately seek from this
Court appropriate relief from the direction of the OSC. The
Court shall sustain the direction of the OSC unless the Court
determines that the direction is unnecessary to avoid or mitigate
an endangerment or a release (actual or threatened) or that it
involves significant activities not contemplated by this Consent
Decree. Absent relief from the Court, Westinghouse shall comply
with the OSC's direction during the pendency of any judicial
challenge.
     92. In the event that any party to the Consent Decree
other than Westinghouse objects to any direction imposed by the
OSC which requires work claimed by that party not to be included
in the activities required by this Consent Decree or objects to
the failure of the OSC to direct the performance or cessation of
activity, the objecting party shall first consult with the OSC,
the United States and Westinghouse to attempt to resolve their
differences. In the event the objecting party, the United States
and Westinghouse are unable to resolve their differences, the
objecting party shall have the right to seek immediately relief
fro this Court directing the OSC to perform an act or directing
that an action directed by the OSC not be undertaken or
continued.
Any such party challenging the OSC's direction shall have the
burden of proof that the OSC's direction is unnecessary to avoid

or mitigate an endangerment or a release (actual or threatened).
Any such party seeking to require direction by the OSC shall have
the burden of proof that direction by the OSC is necessary to
avoid or mitigate an endangerment or a release (actual or
threatened). In any proceeding brought before the Court by any
party other than Westinghouse to challenge an OSC direction or
failure of the OSC to direct action, Westinghouse shall be given
notice of the proceeding and shall be permitted to support or
oppose the relief sought in that proceeding. In the event of a
challenge by any party other than Westinghouse to a direction of
the OSC, the Court shall sustain the direction of the OSC unless
the Court determines (a) that the direction is unnecessary
to avoid or mitigate an endangerment or a release (actual or
threatened) or (b) if Westinghouse also challenges the direction,
that the direction involves significant activities not con-
templated by the Consent Decree. In the event of a challenge by
any party other than Westinghouse to the failure of the OSC to
direct specific action, the Court shall sustain the decision of
the OSC unless the Court determines that the specific action pro-
posed is necessary to avoid or mitigate an endangerment or
a release (actual or threatened) and that it does not involve
significant activities not contemplated by this Consent Decree.
Absent injunctive relief from this Court, there shall be no stay
of the OSC's direction during the pendency of any judicial
challenge.

 

                              XVIII
                        APPROVAL AUTHORITY

     93. Whenever the City is provided with plan approval
authority pursuant to this Consent Decree, that authority shall
extend to plans concerning Lemon Lane Landfill, the Winston-
Thomas Facility, Neal's Landfill, Neal's Dump, Bennett's Dump,
the Anderson Road Landfill and the high temperature incinerator
project. The City shall not have approval authority over state
or federal permitting procedures or activities. The United
States and State shall not have approval authority over City
decision- making processes in approving plans.
     94. Whenever the State is provided with plan approval
authority pursuant to this Consent Decree, that authority shall
extend to plans concerning Neal's Landfill, Neal's Dump,
Bennett's Dump, Lemon Lane Landfill, the Winston-Thomas Facility,
the Anderson Road Landfill and those aspects of the high
temperature incinerator site and related activities for which the
State has sole or joint regulatory authority. The State shall not
have approval authority over federal permitting procedures or
activities.
     95. Whenever the United States is provided with plan
approval authority pursuant to this Consent Decree, that
authority shall extend to plans concerning Neal's Landfill,
Neal's Dump, Bennett's Dump, Lemon Lane Landfill, the Winston-
Thomas Facility, the Anderson Road Landfill and those aspects of
the high temperature incinerator site and related activites for

 

which the United States has sole or joint regulatory authority.
The United States shall not have approval authority over State
permitting procedures or activities except insofar as such
authority is provided in federal statutes, regulations and
Memoranda of Understanding entered into by the United States and
the State.

                               XIX
                        FINANCIAL SECURITY

     96. If at any time prior to the completion of activities
required of Westinghouse under this Consent Decree, the con-
solidated net worth of Westinghouse at the time of entry of the
Consent Decree declines by fifty percent, Westinghouse shall
immediately notify the United States, State and City and promptly
provide security in an amount equal to 125 percent of the esti-
mated net cost to complete such activities. Such security shall
take the form of a performance bond, a surety bond, a letter of
credit or a cash bond, at Westinghouse's option, provided that
such security shall be furnished through an entity not owned in
whole or in part by Westinghouse. The parties may hereafter
agree upon other forms of similar security. Throughout the dura-
tion of the Consent Decree, Westinghouse shall promptly provide
the United States, State and City with copies of the 10-Q quar-
terly reports it files with the Securities and Exchange
Commission.

 

                                XX
                            INSURANCE

     97. Upon entry of this Consent Decree and thereafter
until termination of this Consent Decree, Westinghouse shall
maintain such coverage as shall reasonably provide for the treat-
ment of its insurable risks in connection with its activities
under this Consent Decree. As used in this Section, "coverage"
means (1) purchased insurance, or (2) self-insurance utilized in
lieu of or in combination with purchased insurance consistent
with Westinghouse's normal business practice in the financing of
insurable risk. Westinghouse shall maintain the following
coverage, including but not limited to:
     (a) Workers' Compensation coverage adequate to meet
the statutory requirements of all jurisdictions having authority
over such claims, including but not limited to the State of
Indiana, and employers' liability coverage with a minimum limit
of $1,000,000.
     (b} Third-party liability coverage in the amount
of $50,000,000  personal injury and property damage liability
combined. Such coverage shall apply to risks typically insured
under Comprehensive General Liability, Automobile Liability, and
Environmental Impairment Liability policies (including coverage
for both gradual, sudden and accidental pollution occurrences).
Contractual Liability coverage applicable to the indemnity con-
tained in Section XXX of this Consent Decree shall be included.

 

     (c) Property coverage against physical losa or damage
to the incinerator and related ancillary facilities and improve-
ments on the incinerator site. Such coverage shall be sufficient
to rebuild and restore the incinerator and such ancillary facili-
ties and improvements, and shall include Extra Expense coverage,
applicable to Westinghouse's additional operating expenses
incurred during the time the damaged property is being repaired
or replaced.
     98. (a) Within sixty days of the entry of this Consent
Decree, and annually thereafter, Westinghouse shall provide to
the United States, State and City certification of coverage main-
tained in compliance with this Section. In addition, Westinghouse
shall furnish the United States, State and City with copies of
those policies purchased specifically for activities under this
Consent Decree.
     (b) Insurance policies maintained in compliance
with this Section shall include a waiver of the insurers' rights
of subrogation against the plaintiffs. To the extent coverage
required of Westinghouse by this Section is achieved through
self-insurance, Westinghouse waives its right to recover such
self-insured losses from the plaintiffs.
     (c) Westinghouse shall require of its contractors
doing work under this Consent Decree such insurance as it deems
appropriate considering the contractor's scope of work, attendant
risks, and cost and availability of insurance.

 
     99. Anything to the contrary herein notwithstanding, in
no event shall Westinghouse be relieved of its ultimate respon-
sibility to excavate, remove and incinerate all materials con-
taminated with PCBs and associated hazardous substances under
this Consent Decree by reason of any inability to obtain or
failure to maintain in force any insurance policies required
under this Consent Decree, or by reason of any dispute between
Westinghouse and any of its insurers pertaining to any claim
arising out of the design, construction or operation of the inci-
nerator and use of the property for the incinerator, or arising
out of any of the other activities required under this Consent
Decree.

                               XXI

                 COMPLIANCE WITH APPLICABLE LAWS

     100. All activities undertaken by Westinghouse pursuant
to this Consent Decree shall be undertaken in accordance with the
requirements of all applicable local, state and federal laws,
regulations and permits, including but not limited to the
Occupational Safety and Health Act, 29 U.S.C. SS 651 et seq.,
CERCLA, RCRA, TSCA and the regulations promulgated under each of
those statutes, as well as all applicable Department of
Transportation regulations. The United States and State have
determined that the obligations and procedures authorized under
this Consent Decree and specifically Sections XII and XXII are
consistent with the authority of the United States and State

 

under applicable law to establish appropriate remedial measures
for the sites and areas covered by this Decree.


                              XXII 
                PERMITS AND CONSTRUCTION SCHE W LE

     101. Westinghouse shall submit a complete application
and required plans for approval for construction of a solid waste
incinerator within 180 days of entry of this Consent Decree.
Westinghouse further agrees to submit applications for all other
permits or authorizations as they become complete but in no event
later than 510 days after entry of the Consent Decree and in
compliance with regulations applicable at the time of the appli-
cation; and to submit promptly any additional materials requested
by the United States, State and City consistent with their per-
mitting authority. In addition, promptly upon receipt of the
applications, the United States, State and City shall establish a
Joint Permitting Committee to coordinate the permitting activi-
ties among the various agencies, to serve as liaison with
Westinghouse, and to consolidate the permit process to the extent
possible. The Joint Permitting Committee also shall submit
monthly progress reports to Westinghouse on the status of per-
mitting.
     102. Westinghouse shall apply for and obtain all permits
and approvals necessary for the implementation and completion of
its activities contemplated under this Consent Decree. In addi-
tion to those permits or approvals expressly stated elsewhere in
this Consent Decree, the parties have determined to the best of

 

their knowledge that the following permits or approvals or their
equivalent are those required:
(a)  TSCA approval for the incinerator and for interim storage of
     materials contaminated with PCBs;
(b)  RCRA Treatment Facility Permit;
(c)  Indiana Solid Waste Facility Site Approval Authority
     Certificate of Environmental Compatibility;
(d)  Indiana Hazardous Waste Facility Permits;
(e)  Approval pursuant to 320 IAC 7;
(f)  Indiana Solid Waste Facility Permits;
(g)  Indiana Air Pollution Control Board-applicable Permits or
     Registration;
(h)  Monroe County Planning Commission Building Permit;
(I)  Monroe County Health Department Municipal Solid Waste
     Facility Permit; and
(j)  City of Bloomington Wastewater Pretreatment        
     Discharge Permit.

     103. In any challenge, appeal, or review of any approv-
al action or permit decision of the United States, State, City or
County, Westinghouse shall not challenge the jurisdiction of the
United States, State, City or County to issue said permit or take
such approval action.


     104. Westinghouse shall commence construction of the
solid waste incinerator within sixty days of receipt of the final
permit, registration or plan approval necessary to authorize
construction.
     105. No later than 730 days after commencement of con-
struction, Westinghouse shall complete construction of the
solid waste incinerator.
     106. No later than sixty days after issuance of the
final RCRA construction permit from EPA, hazardous waste con-
struction permit or certificate from the State or plan approval,
whichever is later, and subject to the provisions of applicable
laws and regulations, including 40 C.F.R. 5 124.16, Westinghouse
shall commence construction of the hazardous waste and PCB
incinerator.
     107. No later than 210 days after commencement of
construction of the hazardous waste and PCB incinerator,
Westinghouse shall complete construction of the hazardous waste
and PCB incinerator.
     108. No later than ninety days after issuance of the
TSCA approval or approval by the State under 320 IAC 7, whichever
is later, for operation of the hazardous waste and PCB incinera-
tor, Westinghouse shall commence the incineration of PCBs,
materials contaminated with PCBs, and associated hazardous wastes
and hazardous substances in the incinerator.
     109. With regard to draw down of the liquid in the
tertiary lagoon at the Winston-Thomas Facility, Westinghouse
agrees to apply for and obtain a City of Bloomington Wastewater




Pretreatment Discharge permit and State approval prior to com-
mencement of any pumping of any liquids.
     110. The United States and State have determined that
the obligations and procedures authorized under this Section are
consistent with the authority of the United States and State
under applicable law to establish appropriate remedial measures
for the sites and areas covered by this Decree.

                              XXIII

                       COVENANT NOT TO SUE

     111. (a) Effective upon entry of this Consent Decree,
and conditioned only upon compliance by Westinghouse with the
provisions of this Decree and subject to the reservation of
rights set forth in subparagraph (e) below, the United States,
State, City and County hereby covenant not to assert against
Westinghouse in any civil or administrative action or proceeding
(i) any claim alleged in the complaints and amended complaints in
these actions or (ii) any claim arising under federal, state or
local law, including common law, intended to protect the
environment, in either case resulting from or relating to:
                (1) The past disposal or discharge of PCBs
or materials contaminated with PCBs at the sites and areas iden-
tified in Sections VIII and XI and Exhibits 7 through 11 inclu-
sive or to be identified pursuant to paragraphs 47 and 51
including discharges to the Winston-Thomas Facility from
Westinghouse's Bloomington Plant. This subparagraph shall not
apply to the Anderson Road Landfill and Bennett's Dump sites.

               (2) The release or threatened release of
PCBs or materials contaminated with PCBs from the sites and areas
identified in Sections VIII and XI and Exhibits 7 through 11
inclusive or to be identified pursuant to paragraphs 47 and 51.
This subparagraph shall not apply to the Anderson Road Landfill
and Bennett's Dump sites.
               (3) The past disposal, discharge or release
of PCBs or materials contaminated with PCBs at or from those spe-
cific areas of the Anderson Road Landfill and Bennett's Dump
sites identified pursuant to Sections VIII and XI and Exhibits
1, 2 and 3 inclusive, but excluding disposal, discharge, release
or threatened release of PCBs or materials contaminated with PCBs
at or from portions of the Anderson Road Landfill or Bennett's
Dump sites not covered by this Decree.
               (4) The release or threatened release of
hazardous substances other than PCBs from the portions of the
sites and areas identified in Sections VIII and XI and Exhibits 1
through 11 inclusive or to be identified pursuant to paragraphs
47 and 51 excavated pursuant to this Consent Decree, but
excluding hazardous substances or releases or threatened releases
thereof which are discovered after the effective date of this
Consent Decree in the portions of these sites not excavated
pursuant to this Decree.
               (5) Activities which Westinghouse performs in
compliance with this Consent Decree, including compliance with
Section XXI but excluding the performance of activities in a
manner which violates standards of care required by applicable
federal, state or local law, including common law.

 

     (b) Nothing in this Section shall be construed to
relieve Westinghouse from any liability at law or equity for (1}
failure to perform in accordance with this Consent Decree or (2)
any acts, omissions or events not expressly referred to in this
Covenant. Subject to the provisions of Section XXVII below, in
the event that this Court determines that Westinghouse has failed
to perform its obligations under Sections V through XIII inclu-
sive and Section XXII of this Consent Decree, the Covenant in
favor of Westinghouse shall become null and void and of no  
further force or effect except with respect to those sites and
areas as to which Westinghouse has performed its obligations
under this Decree; and the United States, State, City and County,
or each of them, may seek relief at law or in equity for any mat-
ters except to the ex