Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 1 of 69 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION GREEN GROUP HOLDINGS, LLC, a Georgia limited liability company and HOWLING COYOTE, LLC, a Georgia limited liability company, ) ) ) ) ) PLAINTIFFS, ) ) VS. ) ) MARY B. SCHAEFFER, ELLIS B. LONG, ) BENJAMIN EATON AND ESTHER ) CALHOUN, individually and as members ) and officers of BLACK BELT CITIZENS ) FIGHTING FOR HEALTH AND ) JUSTICE, an unincorporated association, ) ) DEFENDANTS. ) CIVIL ACTION NO.: 2:16-cv-00145-CG-N AMENDED COMPLAINT This Amended Complaint is filed in compliance with the Court’s Order dated April 12, 2016. (Doc. 8). PARTIES 1. The Plaintiff Green Group Holdings, LLC, is a Georgia limited liability company having its principal place of business in Canton, Georgia. 2. The Plaintiff, Howling Coyote, LLC, is a Georgia limited liability company having its principal place of business in Canton, Georgia. 3. The Defendant Mary B. Schaeffer is a resident citizen of Perry County, Alabama, over the age of 19 years and of sound mind. Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 2 of 69 4. The Defendant Ellis B. Long is a resident citizen of Perry County, Alabama, over the age of 19 years and of sound mind. 5. The Defendant Benjamin Eaton is a resident citizen of Perry County, Alabama, over the age of 19 years and of sound mind. 6. The Defendant Esther Calhoun is a resident citizen of Perry County, Alabama, over the age of 19 years and of sound mind. JURISDICTION 7. This action is brought pursuant to 28 U.S.C. §1332, as a civil action between citizens of different states where the amount in controversy exceeds Seventy Five Thousand and no/100 DOLLARS ($75,000.00), exclusive of interest and costs. 8. The Plaintiff Green Group Holdings, LLC, (“Green Group”) is a Georgia limited liability company having its principal place of business in Canton, Georgia. The two owners of membership interests in Green Group, each owning a fifty per cent (50%) interest, are Herzog Contracting Corp., a Missouri corporation (“Herzog”), having its principal place of business in St. Joseph, Missouri, and Phillips Management and Services, LLC, a Tennessee limited liability company (“PMS”), having its principal place of business in Knoxville, Tennessee. Phillips Management and Services, LLC, is wholly owned by the W.T. Phillips, Sr. 2005 Irrevocable Family GSTT Trust, dated April 28, 2005 (the “Trust”). The Trustee of this Trust is W. T. Phillips, Sr., a resident citizen of Land O’ Lakes, Florida. The Trust is a “traditional family planning trust” created and governed Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 3 of 69 pursuant to the laws of the State of Florida1, which is to say it is not a distinct legal entity but serves to establish a fiduciary relationship between its Trustee and the beneficiaries of the Trust. Under the terms of the said trust agreement, the Trustee has the power to hold, manage, and dispose of assets for the benefit of the Trust’s beneficiaries. The Trust is not a "corporate trust" and thus does not have any owners nor are there any certificates or other legal documentation that might otherwise reflect trust certificates or any other factors that may classify this as a business trust, corporate trust or real estate trust.2 The citizenship of Herzog and the Trust are thus deemed to be the states of Missouri3 and Florida, respectively. 9. The Plaintiff Howling Coyote, LLC, (“Howling Coyote”) is a Georgia limited liability company having its principal place of business in Canton, Georgia, is the wholly owned subsidiary of Green Group Environmental Services, LLC, a Georgia limited liability company, a wholly owned subsidiary of Green Group, and is thus deemed to have the same citizenship as Green Group. 10. Complete diversity exists because all Defendants are citizens of the state of Alabama while the Plaintiffs are deemed to be citizens of the states of Missouri and Florida. FACTUAL ALLEGATIONS 11. Howling Coyote was established by Green Group to own and operate the Arrowhead Landfill which it purchased pursuant to the Second Amended Order Authorizing the Sale of The Sale Assets pursuant to 11 U.S.C. § 363(b), Free and Clear of 1 See F.S.A. § 736.0101, et seq. 2 See letter from Jamie Hargrove, the draftsman of the Trust, attached as Exhibit A and made a part hereof by this reference. 3 28 U.S.C. § 1332(c)(1) Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 4 of 69 All Liens, Claims and Encumbrances (Doc. 404) entered by the United States Bankruptcy Court for the Southern District of Alabama, Northern Division, on December 21, 20114. 12. The sale of Arrowhead Landfill was closed on December 21, 2011, and the deed to Howling Coyote from James M. Grady, as Liquidating Trustee, was recorded on December 21, 2011, in office of the Probate Judge for Perry County, Alabama, in Deed Book 614 at Pages 591, et seq. 13. On December 22, 2008, a dike failure released or spilled an estimated 5.4 million cubic yards of coal ash5 into the adjacent waters of the Emory River that covered about 300 acres, including most of Swan Pond Embayment, the lower Emory River, and reservoir shorelines. 14. On May 11, 2009, TVA and the U. S. Environmental Protection Agency (“EPA”) Region 4 entered into an Administrative Order and Agreement on Consent, Docket No.: CERCLA-04-2009-3766, Proceeding Under Sections 104(a), 106(a), and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (the “Administrative Order”),6 which provided in part as follows: “TVA shall not permanently dispose of any Waste Material at an off-Site facility, or in a new landfill on-Site, unless that facility or landfill is operating in compliance with RCRA Subtitle D permitting requirements for operation and disposal of industrial wastes which, at a minimum, shall include the use of a synthetic liner, leachate collection system, groundwater monitoring, financial assurance, and closure and post-closure care.” 4 See: In re Perry Uniontown Ventures I, LLC, and Perry County Associates, LLC, cases numbered 10-00276-MAM-11 and 10-277-MAM, Jointly Administered, in the United States Bankruptcy Court for the Southern District of Alabama, Northern Division. 5 Also known as “fly ash”, “bottom ash”, coal combustion residual (“CCR”) and/or coal combustion waste (“CCW”). 6 Attached hereto as Exhibit B (at pp. 18-19) and made a part hereof by this reference. Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 5 of 69 15. Pursuant to the Administrative Order, TVA solicited proposals and then submitted to EPA Region 4 for approval, its Offsite Ash Disposal Options Analysis recommending that Arrowhead Landfill be approved as the disposal site for the TimeCritical Removal Action, and on July 2, 2009, EPA Region 4, approved that plan.7 TVA found and EPA concurred that: “The Arrowhead Landfill is a state-of-the-art, Subtitle D Class I facility. The composite liner system consists of 2 feet of 1 x 10-7 cm/sec compacted clay, a 60 mil high density polyethylene geomembrane liner, and a 2 foot thick drainage layer with a leachate collection system and protective cover. The site geology consists of the Selma Group chalks which ranges from 500 to 570 feet thick across the site, with a permeability less than 1 x 10-8 cm/sec. The uppermost groundwater aquifer is located beneath this layer.” 16. Arrowhead Landfill, under its prior ownership, began acceptance of the time- critical waste material, consisting primarily of coal ash released from the Tennessee Valley Authority (“TVA”)’s Kingston Fossil Plant, on July 4, 2009. 17. The time-critical waste material was loaded into “burrito bag” lined gondola rail cars in Kingston and shipped to Arrowhead Landfill by rail, unloaded and transported by truck from the railhead to the disposal site. The waste material maintained a moisture content of approximately 25% while in the rail cars and a moisture content of approximately 23% while exposed in the disposal cell. The coal ash did not become airborne at anytime after it arrived at Arrowhead Landfill’s rail yard. 7 See Offsite Ash Disposal Options Plan and Approval attached hereto as Exhibit C (at p. 13) and made a part hereof by this reference. Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 6 of 69 18. The overwhelming majority of the waste material from Kingston was disposed of in disposal cells that have been closed in accord with the rules and regulations promulgated by the Alabama Department of Environmental Management (“ADEM”). 19. ADEM is primarily responsible for the issuance of the permits necessary to operate Arrowhead Landfill as well as the monitoring of Arrowhead’s compliance with the terms of those permits. The permits that have been issued, and in some cases revised and/or renewed by ADEM8 are: Solid Waste Disposal Facility Permit No. 53-03 General NPDES Permit No. ALG160167 (Landfill) General NPDES Permit No. ALG140902 (Trans-Load Station) State Indirect Discharge Permit No. IU395300144 20. Arrowhead Landfill opened on October 15, 2007. Since that date it has received no notices of violation of any of its permits from ADEM or EPA despite having been inspected numerous times by each. 21. Black Belt Citizens Fighting for Health and Justice (“Black Belt”) publishes and maintains a website at http://blackbeltcitizens.wix.com/blackbeltcitizens. That website is disseminated to a national and international market and states that one of Black Belt’s goals is to “Get rid of the Arrowhead Landfill”. 22. Black Belt’s website further states, under its “Projects” tab that: “Arrowhead Landfill, located on south Perry County Road 1 near Uniontown, Alabama, poses a serious health and environmental threat to our area. Built on an unsuitable site over our aquifer, it now contains almost 8 Perry County Associates, LLC, an Alabama limited liability company, is the holder of all permits issued by ADEM. Its principal place of business is in Canton, Georgia, and it is wholly owned by Central Alabama, LLC, a Georgia limited liability company, with its principal place of business in Canton, Georgia. Central Alabama, LLC, is the wholly owned subsidiary of Green Group. Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 7 of 69 4 million tons of toxic coal ash from the Kingston TN spill. Stormwater runoff and deliberate discharges from the landfill reveal high levels of arsenic which, along with toxic dust and noxious odors, are impacting residents, their livestock, and the garden produce on which they depend.” (Emphasis added.) 23. Black Belt publishes and maintains a Facebook page that is disseminated to a national and international market. That Facebook page has been used in a false and malicious manner to accomplish Black Belt’s stated goal of getting rid of Arrowhead Landfill. It may be found at https://www.facebook.com/Black-Belt-Citizens- 753236721412415/. 24. The posts to this Facebook page (which the Defendants allege were written and posted on their Facebook page without their prior knowledge or approval)9 include the following specific false and defamatory publications: October 23, 2015: Arrowhead Landfill and its owners, Green Group Holdings, neglects laws, peoples' rights, and our culture. First, corruption and unlawful actions get the landfill here. Then, 4 million tons of coal ash and garbage from 33 states. Now, Arrowhead landfill and Green Group Holdings are trespassing and desecrating a black cemetery. Black lives matter! Black ancestors matter! (Emphasis added.) November 2, 2015: Coal ash landfills, like Arrowhead Landfill, continue to leak toxins into rivers, streams, and groundwater, potentially affecting the quality of drinking water. This toxic waste effects everyone, please watch this short film about the problems at Arrowhead. (Emphasis added.) November 13, 2015: Black Belt Citizens demand no more coal ash in Uniontown! Black Belt Citizens demand ADEM and EPA enforce their laws to prevent further discrimination against the community. The landfill is poisoning our homes and destroying our Black cementery (sic). THIS IS ENVIRONMENTAL INJUSTICE! Where's our justice? (Emphasis added.) 9 Taking this allegation to be true, it forms the basis for the addition of fictitious party Defendants. Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 8 of 69 November 13, 2015: Uniontown residents continue to be upset over the actions of the Arrowhead Landfill, over the past 3 days there has been another unpermitted (illegal) discharge leaving Green Group Holdings toxic landfill. This has been occurring for years and ADEM has never enforced their permit limits to stop this problem. The majority of the residents around the landfill are worried about their water, air, property values, families' health, and the nearby sacred cemetery that is also being desecrated by the landfill. (Emphasis added.) November 18, 2015: Continued onslaught, pollution, exploitation, & crimes against our Black community; unpermitted discharges leaving from toxic Arrowhead Landfill & destroying property values; increasing health threats, stress, & violence; these oppressive actions cause poverty & discrimination. The Arrowhead Landfill is also desecrating the nearby Black cemetery. Esther Calhoun, President of Black Belt Citizens, says "I feel like I'm in prison, we're suffocated by toxic pollution & extreme poverty. Where are my freedoms? This is an environmental injustice & it's happening in Uniontown & everywhere" (Emphasis added.) 25. On November 19, 2015, Plaintiffs’ counsel sent a letter to Defendants by e- mail demanding that, given the nature of the posting via electronic media, that Defendants immediately delete these posts from their Facebook page and retract their prior posts as being false and misleading. Further demand was made that they immediately cease and desist from making false, erroneous statements about Green Group Holdings and Arrowhead Landfill. 26. There was no response to the November 19, 2015, and further posts to this Facebook page include the following specific false and defamatory publications: November 20, 2015: Pictures of the New Hope Cemetery, neighbor of Arrowhead Landfill. The photos are of possible trespass and recent bulldozing done by the landfill, some of the graves are unable to be located, family members are upset over their sacred space being violated, damaged, & desecrated. Arrowhead Landfill is on the site of an older plantation. The New Hope Cemetery is the final resting place of former workers, indentured servants, and slaves of the plantation. Recent actions by the landfill and improper enforcement from the state constantly remind Uniontown's Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 9 of 69 residents of their past life full of violence, hate, & oppression. (Emphasis added.) December 5, 2015: "We are tired of being taken advantage of in this community," said Uniontown resident Benjamin Eaton, who is a member of the group Black Belt Citizens Fighting for Health and Justice. "The living around here can't rest because of the toxic material from the coal ash leaking into creeks and contaminating the environment, and the deceased can't rest because of desecration of their resting place." (Emphasis added.) January 11, 2016: Multiple pollution sources impact residents including Arrowhead Landfill which stores over 4 million tons of toxic coal ash. This landfill is experiencing unpermitted amounts of water runoff leaving its site and entering neighboring property. Also, the landfill may have committed illegal trespass & desecration of an adjacent Black cemetery. The owners of this landfill, Green Group Holdings, own and operate many extreme landfills around the US. … This event is created to unite citizens across Perry County and Uniontown, Alabama's Black Belt, and the Southeast US to accomplish the following: … - Identify communities' needs against environmental injustices including illegal pollution, coal ash, corporate interests for toxic landfills, and "extreme energy waste sites" (Emphasis added.) January 14, 2016: Join us this Saturday in Uniontown for Building Bridges for Justice as we focus on the toxic, 4 million tons of coal ash sitting in the Arrowhead Landfill. The landfill's pollution problems are influencing the decrease of property values while increasing health concerns. This extremely large landfill owned by Green Group Holdings has been reportedly trespassing and desecrating a nearby Black Cemetery. These impacts are very discriminatory and we feel our civil rights are being violated by environmental racism at all levels. (Emphasis added.) February 25, 2016: "Its a landfill, its a tall mountain of coal ash and it has affected us. It affected our everyday life. It really has done a lot to our freedom. Its another impact of slavery. ...Cause we are in a black residence, things change? And you can't walk outside. And you can not breathe. I mean, you are in like prison. I mean, its like all your freedom is gone. As a black woman, our voices are not heard. EPA hasn't listened and ADEM has not listened. Whether you are white or black, rich or poor, it should still matter and we all should have the right to clean air and clean water. I want to see EPA do their job." Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 10 of 69 Powerful words from our President Esther Calhoun. (Emphasis added.) March 1, 2016: The toxic Arrowhead Landfill continues to hurt/violate/oppress the community with the desecration of the adjacent cemetery, the constant run-off of contaminated water, the bad odors and smells, and the depression of property value. Watch this small video by Black Belt Citizens member Timothy Black as he records run-off at toxic Arrowhead. Black Belt Citizens stand with all communities impacted by toxic coal ash and extreme energy wastes. We stand united with all communities suffering from oppressive and discriminatory policies and practices. We stand with all people who fight for health and justice. (Emphasis added.) 27. On March 10, 2016, Plaintiffs’ counsel sent a letter to Defendants by e-mail demanding that, given the nature of the posting via electronic media, Defendants immediately delete these posts from their Facebook page and retract their prior posts as being false and misleading. Further demand was made that they immediately cease and desist from making false, erroneous statements about Green Group Holdings and Arrowhead Landfill. 28. On the late afternoon of March 15, 2016, defendant Schaeffer sent an email on her behalf as well as on behalf of her sister, Defendant Long, acknowledging receipt of the March 10, 2016 letter and providing notice that the offending posts had been removed from the Black Belt Facebook page. She further alleged that the posts were written and posted without the knowledge or approval of the officers of Black Belt (the Defendants) and she stated that a further response to our “requests” would be forthcoming from the Defendants or their (unnamed) “attorneys”. 29. On the early morning of March 16, 2016, Plaintiffs’ counsel sent a letter to Defendants by e-mail which, inter alia, reminded Defendants of the demand for a Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 11 of 69 repudiation or retraction of their prior posts and extending the previously provided deadline for its publication to Friday March 18, 2016. Inquiry was also made as to whether Defendant Schaeffer was speaking for all four Defendants or just herself and her sister. Demand was also made for the disclosure of the identity and contact information for the person or persons who did write and post the libelous material that had been removed from Black Belt’s Facebook page. 30. On March 17, 2016, defendant Schaeffer sent an email on her behalf as well as on behalf of her sister, Defendant Long, again stating that a further response to our letter would be forthcoming from the Defendants or their (unnamed) “counsel”. 31. On March 18, 2016, a letter of representation as to all four Defendants was received promising a full response after meeting with those defendants “early next week”. 32. The promised “full response” was received March 28, 2016, and was little more than an argumentative letter which included no retraction or repudiation of any of the material specified above as false, defamatory and misleading and lacking in any factual support. 33. A final demand for a retraction was delivered on March 30, 2016, and the deadline given in that demand for making such retraction has passed without any response from Defendants or their counsel. COUNT I (LIBEL) 34. Plaintiffs aver that the Defendants published the above material knowing of its falsity and sensationalizing sting, with malice by intentional action or with reckless Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 12 of 69 disregard for the truth, with an intent to disparage and demonize Plaintiffs and Arrowhead Landfill in the hope of achieving their goal of getting rid of Arrowhead Landfill. 35. Plaintiffs aver that by portraying Arrowhead Landfill as a facility that is a corrupt, intentional polluter of the Uniontown community that also desecrates cemeteries and is intentionally preying on that community to the extent that it calls to mind slavery times and false imprisonment, the Defendants have through the national and international publication of such sensational and defamatory (though false) allegations permanently injured and damaged the business and reputation of Plaintiffs. 36. As a proximate consequence of the libel and defamation of Plaintiffs, they have been injured and permanently damaged as set forth herein. WHEREFORE, the Plaintiffs demand judgment against the Defendants, separately and severally, in the amount of Five Million and no/100 DOLLARS ($5,000,000.00) in compensatory damages and Ten Million and no/100 DOLLARS ($10,000,000.00) in punitive damages. COUNT II (SLANDER) 37. Plaintiffs further aver that the Defendants organized and publicized a “news conference” held on December 4, 2015, featuring the Alabama State Conference of the NAACP in Uniontown, Alabama, and during that press conference, Defendant Eaton told the press there assembled, including Dennis Pillion from al.com10, that: 10 Articles on al.com are available nationally and internationally through their on line presence at http://www.al.com. Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 13 of 69 "We are tired of being taken advantage of in this community," said Uniontown resident Benjamin Eaton, who is a member of the group Black Belt Citizens Fighting for Health and Justice. "The living around here can't rest because of the toxic material from the coal ash leaking into creeks and contaminating the environment, and the deceased can't rest because of desecration of their resting place." (Emphasis added.)11 38. Plaintiffs aver that the the Defendant Eaton knew or had reason to know of the lack of a truthful foundation for his statement and yet used the occasion to further hype the sensational and defamatory nature of the continuing campaign by Black Belt against Arrowhead Landfill in furtherance of its stated goal to “Get rid of the Arrowhead Landfill”. 39. Plaintiffs further aver that the Defendants obtained an appearance by Defendant Calhoun on the “Uprising with Sonali” radio show which originates in Southern California and is available nationally and internationally through that show’s website. During Defendant Calhoun’s appearance, she made statements on air that were false and defamatory, including: “Its a landfill, its a tall mountain of coal ash and it has affected us. It affected our everyday life. It really has done a lot to our freedom. Its another impact of slavery. ...Cause we are in a black residence, things change? And you can't walk outside. And you can not breathe. I mean, you are in like prison. I mean, its like all your freedom is gone.” “As a black woman, our voices are not heard. EPA hasn't listened and ADEM has not listened. Whether you are white or black, rich or poor, it should still matter and we all should have the right to clean air and clean water. I want to see EPA do their job." 11 See: Cemetery Dispute the Latest Conflict Between Arrowhead Landfill, Uniontown Residents, Dennis Pillion, December 5, 2015, http://www.al.com/news/index.ssf/2015/12/arrowhead_landfill_uniontown_r.html Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 14 of 69 40. The statements made by the Defendants Eaton and Calhoun were false and defamatory and were made with the malicious intent or reckless disregard to publish such false statements despite knowing or having reason to know of their falsity. 41. Plaintiffs aver the publication of such sensational and defamatory (though false) allegations have permanently injured and damaged the business and reputation of Plaintiffs. 42. As a proximate consequence of the slander of Plaintiffs, they have been injured and permanently damaged as set forth herein. WHEREFORE, the Plaintiffs demand judgment against the Defendants, separately and severally, in the amount of Five Million and no/100 DOLLARS ($5,000,000.00) in compensatory damages and Ten Million and no/100 DOLLARS ($10,000,000.00) in punitive damages. TRIAL BY JURY is demanded as to all counts. //s// Michael D. Smith______________ Michael D. Smith (ASB-0052-H66M) OF COUNSEL: SMITH & STAGGS, LLP 701 22nd Avenue, Suite 1 Tuscaloosa, AL 35401 Telephone: (205) 409-3140 Facsimile: (205) 409-3144 msmith@smithstaggs.com Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 15 of 69 //s// Kirkland E. Reid (with permission) Kirkland E. Reid (REIDK9451) OF COUNSEL: JONES WALKER, LLP 11 N. Water Street, Suite 1200 Mobile, Alabama 36602 Telephone: (251) 439-7513 Facsimile: (251) 439-7358 kreid@joneswalker.com CERTIFICATE OF SERVICE I certify that I have served a copy of the foregoing using the CM/ECF system, which will send a copy to all counsel of record //s// Michael D. Smith______________ Michael D. Smith (ASB-0052-H66M) Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 16 of 69 EXHIBIT A GOODWIN SQUARE, SUITE 201 444 EAST MAIN STREET LEXINGTON, KENTUCKY 40507 JAMIE HARGROVE DIRECT DIAL: (859) 475-1313 DIRECT FAX: (859) 554-0442 EMAIL: jhargrove@hargrovemadden.com Main: (859) 231-3700 Fax: (859) 475-1370 www.hargrovemadden.com April 19, 2016 Michael D. Smith Smith & Staggs, LLP 701 22nd Avenue, Suite 1 Tuscaloosa, Alabama 35401 Re: The W.T. Phillips, Sr. 2005 Irrevocable Family GSTT Trust, dated April 28, 2005 (the "Trust") Mr. Smith: You have requested information about the Trust referenced above. I am an estate planning attorney and was the primary drafting attorney of the Trust thus having full knowledge of its terms and purposes. A former law partner of mine, Ryland Mahathey, a Florida attorney, assisted me with the document. I have continued to provide estate planning counsel to Mr. Phillips and his family and his various family trusts, including this Trust. The Trust is the sole member of Phillips Management and Services LLC (“PM&S”). PMS is one of the members of Green Group Holdings, LLC. The trustee of the trust is William Ted Phillips, Sr. The address for Mr. Phillips and for the trust is: 22501 State Road 52 Land O’Lakes, Florida 34637. As trustee, Mr. Phillips has the power to “hold, manage, and dispose of assets for the benefit of the beneficiaries of the trust”. The Trust is created under Florida Law and is a traditional family planning trust. It is not a "corporate trust" and thus does not have any owners nor are there any certificates or other legal documentation that might otherwise reflect trust certificates or any other factors that may classify the Trust as a business trust, corporate trust or real estate trust. Please let me know if I can be of further assistance. Sincerely, Jamie Hargrove 00309225.DOCX Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 17 of 69 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 4 EXHIBIT B ____________________________________ ) ) ) ) ) TVA Kingston Fossil Fuel Plant ) Release Site ) Roane County, Tennessee ) ) ) Tennessee Valley Authority, ) ) Respondent. ) ) ____________________________________) IN THE MATTER OF Administrative Order and Agreement on Consent U.S. EPA Region 4 and Tennessee Valley Authority Docket No.: CERCLA-04-2009-3766 Proceeding Under Sections 104(a), 106(a), and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended ADMINISTRATIVE ORDER AND AGREEMENT ON CONSENT I. PURPOSE WHEREAS, on December 22, 2008, approximately 5.4 million cubic yards of ash material were released into the environment from the Tennessee Valley Authority (TVA) Kingston Fossil Fuel Plant in Roane County, Tennessee; and WHEREAS, TVA undertook immediate response actions and worked in close coordination with the United States Environmental Protection Agency (EPA), the Tennessee Department of Environment and Conservation (TDEC), and other agencies to provide for the safety of area residents, to contain released ash and minimize its downstream migration, and to monitor and assess air and water quality; and WHEREAS, on January 12, 2009, TDEC issued a Commissioner’s Order to TVA requiring, among other things, the comprehensive assessment, cleanup and restoration of areas impacted by the release; and WHEREAS, on February 4, 2009, EPA, pursuant to Executive Order 12088, and TDEC issued a joint letter to TVA wherein TVA was directed to provide all plans, reports, work proposals and other submittals being provided to TDEC, to EPA as well for review and approval by the agencies; and Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 18 of 69 WHEREAS, TVA is, and has been, responding to the release of ash from an impoundment at the TVA Kingston Fossil Fuel Plant in Roane County, Tennessee, pursuant to the January 12, 2009, Commissioner’s Order, and the February 4, 2009, letter, with the oversight of TDEC and EPA and under its authorities, including that delegated by Executive Order No. 12580; and WHEREAS, TVA is committed to cleaning up the release, protecting the health and safety of the public and workers, protecting and restoring environmentally sensitive areas, and keeping the public and stakeholders informed and involved in the formulation of response activities; and WHEREAS, TVA recognizes EPA’s specialized expertise in responding to largescale releases; and WHEREAS, TVA, EPA, and TDEC desire to work cooperatively in all aspects of the cleanup; and WHEREAS, TVA and EPA agree that in order to ensure that the environmental impacts associated with the release are thoroughly assessed and that appropriate response actions are taken as necessary to protect public health, welfare or the environment, and to ensure that the response actions satisfy all federal as well as state environmental requirements, it is advisable and beneficial for TVA and EPA to enter into this Administrative Order and Agreement on Consent (Order, or Order and Agreement) providing for cooperative implementation of the response actions at the Site pursuant to their authorities under the Comprehensive Environment Response, Compensation, and Liability Act (CERCLA), as amended, and the National Contingency Plan (NCP); NOW, THEREFORE, EPA hereby orders and TVA agrees as follows: II. JURISDICTION 1. This Order is issued by EPA pursuant to the authority vested in the President of the United States by Sections 106(a) and 107 of CERCLA, 42 U.S.C. §§ 9606(a) and 9607, and delegated to the Administrator of EPA by Executive Order 12580, 52 Fed. Reg. 2923 (Jan. 23, 1987), and within EPA further delegated to the Regional Administrators by EPA Delegation Nos. 14-14-A and 14-14-B, and re-delegated to the Region 4 Superfund Division Director by Regional Delegations 14-14-A and 14-14-B. 2. This Order and Agreement is entered into by TVA pursuant to the authority vested in the President of the United States by Section 104(a) of CERCLA, 42 U.S.C. § 9604(a), and delegated to TVA by Executive Order 12580, 52 Fed Reg. 2923 (Jan. 23, 1987), and pursuant to the authority of the Tennessee Valley Authority Act of 1933, as amended, 16 U.S.C. §§ 831-831ee (2006). 3. This Order pertains to the release of ash from the TVA Kingston Fossil Fuel Plant located in Roane County, Tennessee, to the surrounding environment, including 2 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 19 of 69 portions of the Watts Bar Reservoir. This Order requires TVA, and TVA agrees, to conduct response actions, described herein, to abate any imminent and substantial endangerment to public health, welfare or the environment that may be presented by the actual or threatened release of hazardous substances, pollutants or contaminants and to otherwise address the impacts of the release at or from the Site in accordance with CERCLA and the NCP. 4. EPA has notified the State of Tennessee of this action pursuant to Section 106(a) of CERCLA, 42 U.S.C. § 9606(a). 5. EPA and TVA agree that this Order and Agreement has been negotiated in good faith and that the actions undertaken by TVA in accordance with this Order do not constitute an admission of any liability. TVA retains the right to controvert in any proceedings, other than a proceeding solely to enforce this Order, the validity of any of the Findings of Fact or Conclusions of Law and Determinations in Sections V and VI of this Order. TVA agrees to comply with and be bound by the terms of this Order, and further agrees in any proceeding solely to implement or enforce this Order that it will not contest the validity of this Order, its terms, or the jurisdiction of EPA to issue it. III. PARTIES BOUND 6. This Order applies to and is binding upon EPA and upon TVA and TVA’s directors, officers, employees, agents, successor agencies or departments, and assigns. Any transfer of the assets or real property of the United States in TVA’s custody and control shall not alter TVA’s responsibilities under this Order. 7. TVA shall ensure that its employees, contractors, subcontractors and representatives receive a copy of this Order and comply with this Order. TVA shall be responsible for any noncompliance with this Order. IV. DEFINITIONS 8. Unless otherwise expressly provided herein, terms used in this Order which are defined in CERCLA, or in regulations promulgated under CERCLA, shall have the meaning assigned to them in CERCLA or in such regulations. Whenever terms listed below are used in this Order, the following definitions shall apply: a. “CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601 et seq. b. “Corrective Action Plan” or “CAP” shall mean the Corrective Action Plan, as required by the TDEC Commissioner’s Order. c. “Day” shall mean a calendar day unless expressly stated to be a working day. 3 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 20 of 69 d. “Department” or “TDEC” shall mean the Tennessee Department of Environment and Conservation. e. “Effective Date” shall be the effective date of this Order, as provided in Section XXXIX herein. f. “EPA” shall mean the United States Environmental Protection Agency and any successor departments or agencies of the United States. g. “Future Response Costs” shall mean all direct and indirect costs incurred at or in connection with the Site after the Effective Date of this Order, that are not inconsistent with the NCP, that EPA incurs in reviewing or developing plans, reports and other items pursuant to this Order, verifying the Work, providing technical assistance, or otherwise implementing, overseeing, or enforcing this Order, including, but not limited to, payroll costs, contractor costs, travel costs, and laboratory costs. h. “Interest” shall mean interest at the rate specified for interest on investments of the EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507, compounded annually on October 1 of each year, in accordance with 42 U.S.C. § 9607(a). The applicable rate of interest shall be the rate in effect at the time the interest accrues. The rate of interest is subject to change on October 1 of each year. i. “National Contingency Plan” or “NCP” shall mean the National Oil and Hazardous Substances Pollution Contingency Plan promulgated pursuant to 42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto. j. “NPDES Permit” shall mean the National Pollutant Discharge Elimination System Permit (#TN0005452), originally issued by EPA to TVA on April 30, 1976, and most recently re-issued by TDEC on September 1, 2003. k. “Order” or “Order and Agreement” shall mean this document and all documents incorporated by reference, or to be incorporated by reference, into this document. All such documents are integral and enforceable parts of this Order. l. “Paragraph” shall mean a portion of this Order identified by an Arabic numeral or a lower case letter. m. “Parties” shall mean EPA and TVA. n. “Past Response Costs” shall mean all costs incurred by EPA at or in connection with the Site between December 22, 2008, and the Effective Date hereof, that are not inconsistent with the NCP. o. “RCRA” shall mean the Solid Waste Disposal Act, as amended, 42 U.S.C. § 6901, et seq. (also known as the Resource Conservation and Recovery Act). 4 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 21 of 69 p. “Section” shall mean a portion of this Order identified by a Roman numeral. q. “Site” shall mean those areas of the TVA Kingston Fossil Fuel Plant, located in Roane County, Tennessee, where Waste Material from the December 22, 2008, release has been deposited, stored, disposed of, or placed, or has migrated or otherwise come to be located. r. “State” shall mean the State of Tennessee. s. “TVA” shall mean the Tennessee Valley Authority, and its officers, directors, employees, successors, assigns, contractors, agents and representatives, and any successor departments or agencies of the United States. t. “Waste Material” shall mean: 1) any “hazardous substance” under Section 101(14) of CERCLA, 42 U.S.C. § 9601(14); 2) any pollutant or contaminant under Section 101(33) of CERCLA, 42 U.S.C. § 9601(33); and 3) any “solid waste” under Section 1004(27) of RCRA, 42 U.S.C. § 6903(27), related to the December 22, 2008, release of ash at and from the Site, or generated in connection with response actions related thereto. u. “Work” shall mean all activities TVA is required to perform under this Order. V. EPA’S FINDINGS OF FACT 9. TVA operates the Kingston Fossil Fuel Plant located in Roane County, Tennessee, near the confluence of the Emory and Clinch Rivers. The plant was originally built in the early 1950s to provide power for the Department of Energy’s facility in Oak Ridge, Tennessee. In approximately 1958, the plant began use of a 244-acre wet settling pond for containment of the ash that remains after coal is burned. This settling pond covered the area where the current settling pond, stilling pond and landfill cells 1, 2, 3 and 4 now reside. 10. On June 29, 1999, TVA submitted an application to TDEC for a Class II landfill permit for the disposal of ash waste from the operation of the Kingston Fossil Fuel Plant. TDEC issued TVA the requested Class II landfill permit on September 26, 2000. 11. On September 1, 2003, TDEC issued TVA its most recent NPDES permit for the Kingston Fossil Fuel Plant. The permit authorizes discharge of water from the ash settling pond to the plant intake channel (the intake draws water from the Emory River) and discharge of cooling water to the Clinch River downstream from the mouth of the Emory River. The permit requires that a certain amount of free water volume be maintained in the settling pond to provide adequate treatment prior to discharge. This requirement necessitates periodic dredging of the ash settling pond. The NPDES permit further includes a general requirement that TVA properly operate and maintain all facilities and systems for collection and treatment, and expressly prohibits overflows of 5 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 22 of 69 wastes to land or water from any portion of the collection, transmission, or treatment system other than through permitted outfalls. 12. On December 22, 2008, containment structures surrounding portions of the Class II landfill failed resulting in a release of approximately 5.4 million cubic yards of wet ash which flowed into area waters, including the Emory River, adjacent tributaries and sloughs, and adjoining shorelines. The Emory River is a navigable-in-fact water of the United States. The release also extended to approximately 300 acres of land outside of the ash storage area, almost all of which was owned by the United States and in TVA’s custody and control. The Tennessee River is the source of drinking water for the City of Kingston, Tennessee, and the Watts Bar Reservoir is used by several municipalities as a source of drinking water. 13. EPA Region 4 was notified of the incident on December 22, 2008, and an EPA On-Scene Coordinator (OSC) mobilized to the Site that same day for the emergency phase of the cleanup, pursuant to Executive Order 12580. The OSC worked within the Unified Command/Incident Command to coordinate the response as required by the NCP. Subsequently, on January 10, 2009, EPA, in coordination with the Unified Command, declared the emergency phase of the cleanup complete, transferred the lead federal agency role to TVA in accordance with Executive Order 12580, and demobilized from the Site. 14. On January 12, 2009, TDEC issued TVA the Commissioner’s Order which directed TVA to undertake numerous response activities at the Site including, but not limited to: a. implement measures to prevent the movement of contaminated materials and minimize further down-stream migration of contaminated sediments; b. fully cooperate and support TDEC’s review of all TVA fly ash impoundments located in the State; c. submit all existing studies, reports and memoranda that are potentially relevant to explaining or analyzing the cause of the catastrophic failure of the containment structures; d. fully cooperate and provide support for TDEC’s initial assessment of the impact of the ash release on all waters of the State; e. prepare and submit a Corrective Action Plan (CAP) within 45 days after receipt of the Commissioner’s Order, to include: i. a plan for the assessment of soil, surface water and groundwater; remediation of impacted media; and restoration of all natural resources damaged as a result of the release; ii. a plan for monitoring the air and water in the area during the cleanup process; 6 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 23 of 69 iii. a plan to ensure that public and private water supplies are protected and that alternative water supplies are provided if contamination is detected; iv. a plan for addressing both the short-term and long-term management of fly ash at the Site, including remediation and stabilization of the failed ash waste cells, proper management of the recovered ash, and a revised closure plan for the Class II ash disposal facility; and v. a plan to address any health or safety hazards posed by the ash to workers and the public. 15. On January 21, 2009, TVA submitted written notification to the Tennessee Emergency Response Commission, pursuant to which TVA reported a discharge of 5.4 million cubic yards of ash containing the following constituents: arsenic, beryllium, chromium, copper, lead, mercury, nickel, zinc, antimony, cadmium, silver, selenium, thallium, and vanadium oxide. 16. On February 4, 2009, EPA, pursuant to Executive Order 12088, and TDEC issued a letter to TVA in which EPA provided notice to TVA that EPA considers the release to be an unpermitted discharge of a pollutant in contravention of the Clean Water Act. The letter directed that TVA provide all plans, reports, work proposals and other submittals being provided to TDEC, to EPA as well for agency review and approval. Subject to the reservations contained in Section XXX, by complying with this Order, TVA will be deemed by EPA to have addressed the unpermitted discharge. 17. Pursuant to the Commissioner’s Order, on March 2, 2009, TVA submitted a draft CAP to EPA and TDEC for agency review and approval. 18. Since the release, EPA, the State and TVA have conducted extensive sampling of air, water, sediment, and ash material. Sampling results have revealed levels of arsenic in the ash material that exceed Region 4’s residential removal action level of 39 mg/kg. In addition, shortly after the release, arsenic was detected in surface water samples at concentrations in excess of the Tennessee Water Quality Criteria (TWQC) for Domestic Water Supply and in excess of the human health aquatic organism consumption criteria. In the days immediately following the release, arsenic, as well as numerous other contaminants, including cadmium, chromium, copper, lead, mercury, nickel, selenium, and zinc, were also detected in surface water at concentrations which exceeded the National Recommended Ambient Water Quality Criteria (AWQC) for protection of aquatic life (based on both the Chronic Continuous Criterion and the Chronic Maximum Criterion). Other than one thallium exceedance in the raw water collected from the river at the intake of the Kingston public water supply system the day after the release, no contaminants have been detected above the Maximum Contaminant Levels (MCLs) in either the raw intake waters or finished water supplies of the Kingston, Cumberland, or Rockwood public water supply systems. 19. EPA has classified arsenic as a known human carcinogen; and long-term exposure of aquatic organisms to high levels of metals like arsenic, cadmium, chromium, copper, lead, mercury, nickel, selenium, and zinc may cause decreases in survival, 7 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 24 of 69 growth, or reproduction to those aquatic organisms. The levels of these metals detected in the most recent air and surface water sampling events do not indicate an immediate threat to human health or the environment from those metals. However, if the ash material is not properly managed and remediated, the direct impact of the ash material currently in the water on the riverine ecosystem, further suspension of the ash and its constituents within affected waters, and potential exposure from ash on the ground could present unacceptable impacts to human health and/or the environment. VI. EPA’S CONCLUSIONS OF LAW AND DETERMINATIONS 20. Based on the Findings of Fact set forth above and the Administrative Record supporting this Order, EPA has determined that: a. The TVA Kingston Fossil Fuel Site is a “facility” as defined by Section 101(9) of CERCLA, 42 U.S.C. § 9601(9). b. Ash at the Site contains constituents such as arsenic, cadmium, chromium, copper, lead, mercury, nickel, selenium and zinc which are “hazardous substances” as defined by Section 101(14) of CERCLA, 42 U.S.C. § 9601(14). Coal ash is not regulated as a hazardous waste under RCRA. c. TVA is a “person” as defined by Section 101(21) of CERCLA, 42 U.S.C. § 9601(21). d. TVA is an Executive agency and instrumentality of the United States and as such is charged with fulfilling the obligations of the owner/operator under CERCLA at this facility. TVA is liable under Section 107(a) of CERCLA as an “operator” of the facility as defined by Section 101(20) of CERCLA, 42 U.S.C. § 9601(20), and within the meaning of Section 107(a)(1) of CERCLA, 42 U.S.C. § 9607(a)(1). e. The conditions described in the Findings of Fact above constitute an actual or threatened “release” of hazardous substances from the facility as defined by Section 101(22) of CERCLA, 42 U.S.C. § 9601(22). f. The actual or threatened release of hazardous substances from the Site may present an imminent and substantial endangerment to the public health, welfare, or the environment within the meaning of Section 106(a) of CERCLA, 42 U.S.C. § 9606(a). g. The response actions required by this Order are necessary to protect the public health, welfare, or the environment and, if carried out in compliance with the terms of this Order, will be consistent with the NCP, as provided in 40 C.F.R. § 300.700(c)(3)(ii). VII. ORDER 21. Based upon the foregoing Findings of Fact, Conclusions of Law and Determinations, and the Administrative Record for this Site, it is hereby Ordered and 8 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 25 of 69 Agreed that TVA shall comply with the following provisions, including but not limited to all documents incorporated by reference into this Order, and all schedules and deadlines in this Order, developed pursuant to this Order, or incorporated by reference into this Order. VIII. DESIGNATION OF PROJECT COORDINATOR, ON-SCENE COORDINATOR, AND REMEDIAL PROJECT MANAGER 22. TVA hereby designates Anda Ray as its Project Coordinator who shall be responsible for administration of all TVA’s actions required by this Order. To the greatest extent possible, the Project Coordinator shall be present on Site or readily available during Site work. When the Project Coordinator is not able to be present on Site or readily available he/she may, upon notification to the OSC and RPM, designate another qualified TVA employee to temporarily act in the position of Project Coordinator. Receipt by TVA’s Project Coordinator of any written notice or communication from EPA relating to this Order shall constitute receipt by TVA. 23. TVA shall perform the response actions itself or retain a contractor(s) to perform the actions. TVA shall notify EPA of the identity and assigned tasks of each of its contractors performing Work under this Order upon their selection and contract award. TVA shall provide copies of this Order to all contractors performing any Work called for by this Order. TVA shall be responsible for ensuring that its contractors comply with the terms and conditions of this Order. Any contractor that will be performing tasks for which the following guidance has applicability, must demonstrate compliance with ANSI/ASOC E4-1994, “Specifications and Guidelines for Quality Systems for Environmental Data Collection and Environmental Technology Programs,” (American National Standard, January 5, 1995), by submitting a copy of the proposed contractor’s Quality Management Plan (QMP). The QMP should be prepared in accordance with “EPA Requirements for Quality Management Plans (QA/R-2),” (EPA/240/B-01-002, March 2001) or equivalent documentation as determined by EPA. 24. EPA has designated Leo Francendese of the Region 4 Emergency Response and Removal Branch as its On-Scene Coordinator (OSC) for purposes of the time-critical removal actions to be conducted under this Order and Craig Zeller of the Remedial and Site Evaluation Branch as its Remedial Project Manager (RPM) for all other response actions to be conducted under this Order. 25. EPA and TVA shall have the right to change their respective designated Project Coordinator and OSC/RPM. The Parties shall notify each other ten (10) days before such a change is made. IX. WORK TO BE PERFORMED 26. Statement of Objectives - The Parties acknowledge that, in order to expeditiously and efficiently prioritize and perform necessary response actions at the Site, it is important to have agreed upon short-term, mid-term and longer-term strategic 9 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 26 of 69 objectives. The Parties therefore agree that the short-term strategic objectives for the Site are to: prevent the coal ash release from negatively impacting public health and the environment; b. contain and remove coal ash from the Emory River and the area east of Dike 2 as appropriate to restore flow and minimize further downstream migration of the ash material; and c. ensure that coal ash material recovered during these efforts is properly managed pending ultimate disposal decisions or, to the extent required by limited storage capacity, properly disposed. a. The mid-term strategic objectives for the Site are to: remove any remaining coal ash from the Emory River and the area east of Dike 2, as well as the coal ash from embayments and tributaries west of Dike 2, to the maximum extent practicable, as determined by EPA in consultation with TDEC and TVA, pending further Site assessment; b. remove the coal ash from impacted surface soils to the maximum extent practicable, as determined by EPA in consultation with TDEC and TVA, pending further Site assessment; c. restore area waters impacted by the coal ash release in accordance with the required jurisdictional assessment; and d. ensure proper disposal of all coal ash material recovered during these efforts. a. The longer-term objectives for the Site are to: perform a comprehensive Site assessment to determine what actions may be necessary to address any residual contamination remaining after previous cleanup activities; b. implement any such actions; and c. ensure the proper disposal of all ash material recovered during these efforts. a. Response actions necessary to achieve short-term strategic Site objectives shall generally be identified as time-critical removal actions. Activities necessary to achieve mid-term strategic Site objectives shall generally be identified as non-time-critical removal actions. Activities necessary to achieve longer-term strategic Site objectives shall generally be identified as remedial actions. The specific actions to be taken to achieve these goals, and the schedules for those actions, shall be governed by the work plans developed and approved pursuant to the remaining paragraphs in this Section. The Parties recognize that, to the extent appropriate, time-critical response actions in furtherance of the shortterm Site objectives and non-time-critical response actions in furtherance of the mid-term Site objectives will be carried out simultaneously. 27. EPA acknowledges that TVA has already done considerable work to further the short-term strategic Site objectives set forth in Paragraph 26, above, including extensive work on air, surface water and drinking water monitoring; ash containment; 10 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 27 of 69 dust suppression; and initial dredging activities. Portions of that work have been conducted under the TDEC Commissioner's Order and TVA authorities and in accordance with work plans approved by TDEC and EPA pursuant to that Order and EPA’s February 4, 2009, letter. It is the intent of the Parties that work done and data generated prior to the Effective Date of this Order be retained and utilized to the maximum extent feasible during implementation of the Work required by this Order and, further, that the issuance of this Order not result in any unnecessary delay in the ongoing cleanup efforts. TVA shall continue to proceed with ongoing response work pursuant to the following deliverables, which have previously been approved by EPA and/or TDEC: a. Kingston Fossil Plant (KIF) Interim Drainage and Controls Plan (approved April 3, 2009) b. Phase 1 Emory River Dredging Plan (approved March 19, 2009) c. KIF Fly Ash Pond Incident Environmental Sampling Plan (February 2009) d. Request for Authorization to use Polymers to Enhance Treatment of Dredge Return Water (approved March 23, 2009) e. Request for Use of Wick Drains in Ash Processing Area (February 20, 2009) f. Long Term Cenosphere Recovery Plan (March 2009) g. Ash Processing Area Construction and Operation Plan (approved March 19, 2009) Each of the foregoing work plans is incorporated by reference into this Order and is enforceable under this Order. Each of these plans shall be subject to revision upon direction by EPA, at which time the plan(s) shall be subject to the approval provisions in Section X, hereto. 28. Time-Critical Removal Action Memoranda and Work Plans Within fourteen (14) days of the Effective Date of this Order, TVA shall submit an Action Memorandum for the time-critical removal action. Upon approval of the Action Memorandum by EPA, TVA shall submit, in accordance with the schedule below, the following plans, which may incorporate by reference, or otherwise build upon, plans previously submitted for TDEC and/or EPA review, along with any other work plans necessary to implement the actions selected in the Action Memorandum: Within five (5) days of Action Memorandum approval, TVA shall submit the following: a. Site Storm Water Management Plan b. Site Dust Control and Air Monitoring Plan c. Schedule for development of a Structural Integrity Evaluation, Recommendations and Maintenance Plan for Existing Site Dikes/Berms being used to contain spilled ash d. Schedule for development of a Dredging/Excavation Plan for East of Dike 2 (including Ash Processing Areas) Within fifteen (15) days of Action Memorandum approval, TVA shall submit the following: 11 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 28 of 69 e. Off-Site Ash Disposal Options Analysis f. Financial Expenditure Report (to be updated quarterly) g. Schedule for development of any other work plans necessary to implement the actions selected in the Action Memorandum. Within forty-five (45) days of Action Memorandum approval, TVA shall submit the following: h. Information/Data Management Plan i. Surface Water Monitoring Plan for the Emory, Clinch and Tennessee Rivers The approved Action Memorandum may be amended, subject to review and approval by EPA, should circumstances so warrant. 29. TVA shall publish a notice of the availability of the Administrative Record for the selected time-critical removal action(s), including the approved Action Memorandum and any approved work plans, within fourteen (14) days of the approval by EPA of the Action Memorandum. TVA shall update the Administrative Record when additional work plans are approved and if and when any amendments are made to the Action Memorandum. TVA shall provide a public comment period of not less than thirty (30) days beginning at the time the initial Administrative Record file is made available to the public, and upon any updates to the Administrative Record. The public comment period shall not delay initiation of selected time-critical removal actions. A written response to significant comments submitted during the public comment period shall be prepared by TVA and submitted to EPA for review and comment. TVA’s final response to comments shall be included in the Administrative Record. 30. Non-Time-Critical Removal Action EE/CAs, Action Memoranda and Work Plans - Within ninety (90) days after the effective date of this Order, TVA shall submit to EPA for approval a draft Work Plan for performing one or more Engineering Evaluation/Cost Analyses (EE/CAs) for non-time-critical removal actions to be taken at the Site. TVA shall conduct the EE/CA(s) consistent with 40 C.F.R. § 300.415(b)(4) of the NCP, and in accordance with OSWER Directive 9360.0-32, Guidance on Conducting Non-Time Critical Removal Actions Under CERCLA (EPA/540-R-93-057, August 1993). The EE/CA Work Plan shall be developed in conjunction with a Sampling and Analysis Plan, and Health and Safety Plan. A detailed schedule for completion of each major work item in the EE/CA process shall also be included in the EE/CA Work Plan. The EE/CA Work Plan shall include a comprehensive description of the work to be performed in developing the EE/CA, including the media to be investigated (e.g. air, ground water, surface water, surface and subsurface soils, and sediments), and the methodologies for human health and ecological risk assessments. The EE/CA Work Plan shall also include the Jurisdictional Assessment described in Section XII, Paragraph 34(b), below. The EE/CA investigations, human health/ecological risk assessments, and identified non-time-critical removal actions shall address: 12 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 29 of 69 Coal ash not yet removed from the Emory River and the area east of Dike 2; Coal ash in the embayments and tributaries west of Dike 2; Coal ash on upland areas and surface soils; Restoration of area waters impacted by the coal ash release per the Jurisdictional Assessment; and Proper disposal of all coal ash material recovered during these efforts. Following completion of the work in the approved EE/CA Work Plan, TVA shall submit the draft EE/CA Report for EPA’s review and approval. Upon issuance of a final EE/CA, as approved by EPA, TVA shall make the EE/CA and the Administrative Record supporting the EE/CA available for public comment in accordance with 40 C.F.R. § 300.415(n), and shall comply with the Administrative Record requirements of 40 C.F.R. § 300.820. Within thirty (30) days of the close of the public comment period on the EE/CA, TVA shall submit for EPA review and approval an Action Memorandum which responds to public comments and describes the selected response actions. Within sixty (60) days of EPA’s approval of the Action Memorandum, TVA shall submit to EPA for review and approval a Non-Time-Critical Removal Work Plan for the selected response actions. Upon approval, TVA shall implement the Non-Time-Critical Removal Work Plan in accordance with the schedule provided therein. Both the Action Memorandum and the Non-Time-Critical Removal Work Plan shall be added to the Administrative Record and an additional public comment period of not less than thirty (30) days shall be provided. This comment period shall not delay initiation of the selected non-time-critical removal actions. A written response to significant comments submitted during the public comment period shall be prepared by TVA and submitted to EPA for review and comment. TVA’s final response to comments shall be included in the Administrative Record. 31. Other Response Actions – Within thirty (30) days of the receipt of EPA’s approval of the Final OSC Report for the Non-Time-Critical Removal Action described in Paragraph 41, below, TVA shall submit to EPA for review and approval, a Remedial Site Work Plan (RSWP) to address the longer-term strategic Site objectives set forth in Paragraph 26, above, including the performance of a preliminary assessment as required by 42 U.S.C. § 9620(d)(1). Upon EPA approval of the RSWP, TVA shall perform the preliminary assessment and submit to EPA for review and approval a preliminary assessment report which documents whether additional assessment or remedial work is necessary to address any residual contamination remaining at the Site. To the extent that the report, as approved by EPA, indicates that additional Site response action is required, TVA shall revise the RSWP to include a plan and schedule for selecting and conducting such work. Such work shall be governed by the terms of this Order and Agreement on Consent, and shall be performed in accordance with CERCLA and the NCP, including all public participation and Administrative Record requirements. 13 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 30 of 69 X. EPA APPROVAL OF PLANS AND OTHER SUBMISSIONS 32. a) After review of any plan, report or other item which is required to be submitted for approval pursuant to this Order, EPA, after consultation with TDEC, shall: (i) approve, in whole or in part, the submission; (ii) approve the submission upon specified conditions; (iii) disapprove, in whole or in part, the submission, directing that TVA modify the submission; or (iv) any combination of the above. b) In the event of approval or approval upon conditions, pursuant to Paragraph 32(a)(i) or (ii), TVA shall proceed to take any action required by the plan, report, or other item, as approved by EPA, subject only to its right to invoke the Dispute Resolution procedures set forth in Section XXVI (Dispute Resolution) with respect to the conditions established by EPA. c) Upon receipt of a notice of disapproval pursuant to Paragraph 32(a)(iii), TVA shall, within fourteen (14) days, or such other time as agreed by EPA and TVA, correct the deficiencies and resubmit the plan, report, or other item for approval. Any stipulated penalties applicable to the submission, as provided in Section XXVIII, shall accrue during the 14-day period, or otherwise specified period, but shall not be assessed unless the resubmission is disapproved due to a material defect as provided in Paragraph 32(f). d) Notwithstanding the receipt of a notice of disapproval pursuant to Paragraph 32(a)(iii), TVA shall proceed, at the direction of EPA, to take any action required by any non-deficient portion of the submission. Implementation of any nondeficient portion of a submission shall not relieve TVA of any liability for stipulated penalties under Section XXVIII (Stipulated Penalties). e) In the event that a resubmitted plan, report or other item, or portion thereof, is disapproved by EPA, EPA may again require TVA to correct the deficiencies, in accordance with the preceding paragraphs. f) If upon resubmission, a plan, report, or item is disapproved by EPA due to a material defect, TVA shall be deemed to have failed to submit such plan, report, or item timely and adequately unless TVA invokes the dispute resolution procedures set forth in Section XXVI (Dispute Resolution) and EPA's action is not confirmed pursuant to that Section. The provisions of Section XXVI (Dispute Resolution) and Section XXVIII (Stipulated Penalties) shall govern the implementation of the Work and accrual and payment of any stipulated penalties during Dispute Resolution. If EPA's disapproval is confirmed, stipulated penalties shall accrue for such violation from the date of EPA’s initial disapproval. A material defect shall be any element of a submitted plan, report, or item that goes to the fundamental purpose for the plan, report, or item and does not include style or format. g) All plans, reports, and other items required to be submitted to EPA under this Order shall, upon approval by EPA, be incorporated by reference into and become enforceable under this Order. In the event EPA approves a portion of a plan, report, or 14 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 31 of 69 other item required to be submitted to EPA under this Order, the approved portion shall be incorporated into and become enforceable under this Order. XI. STRUCTURAL INTEGRITY ASSESSMENTS OF OTHER TVA FACILITIES 33. TVA is currently conducting assessments of all of its existing coal ash impoundments located at its eleven (11) coal-fired power plants, including analyses of the structural integrity of such impoundments. EPA is also undertaking its own national assessment of coal ash impoundments throughout the nation. TVA agrees to promptly provide any findings, reports, or other documentation produced as a result of its internal assessments to EPA. TVA has provided EPA its assessment methodologies and agrees to work with EPA with the goal of making the TVA and EPA assessment methodologies consistent. Upon EPA’s request, TVA shall make available appropriate TVA personnel and contractors, to work with EPA personnel and contractors, in refining their respective assessment methodologies. EPA will review any reports submitted under this Paragraph and advise TVA if additional structural assessment work is warranted. EPA may conduct its own independent structural integrity assessments of TVA facilities and TVA agrees to cooperate with such effort. Nothing in this Paragraph shall require TVA to delay its ongoing or planned assessments nor shall Sections XXVIII or XXV apply to activities under this Paragraph. XII. COMPLIANCE WITH OTHER LAWS 34. a) All Work performed under this Order shall be performed in a manner consistent with the National Contingency Plan, including, but not limited to, the public participation requirements of 40 C.F.R. § 300.415. All removal actions undertaken pursuant to this Order, shall, to the maximum extent practicable considering the exigencies of the situation, attain applicable or relevant and appropriate requirements (ARARs) under federal environmental or state environmental or facility siting laws. All remedial activities undertaken pursuant to this Order shall attain ARARs unless a waiver has been approved by EPA pursuant to 40 C.F.R. § 300.430(f)(1)(ii)(C). b) Although restoration of area waters impacted by the coal ash release has been identified as a mid-term strategic Site objective and a part of the non-time-critical removal actions under this Order, TVA agrees that such restoration will be considered as remedial activity for purposes of complying with ARARs. Therefore, ARARs pertaining to such restoration shall be attained unless a waiver has been approved by EPA. In particular, TVA agrees that it will so comply with Clean Water Act Section 404(b)(1) guidelines to restore waters of the United States to the functional level occurring prior to the ash release. In order to identify the full extent of response activities necessary to meet this ARAR, TVA shall conduct a jurisdictional assessment of the Site, to the extent not previously evaluated, which will identify all waters of the United States impacted by the release. Such assessment shall be performed by an independent environmental management professional or other expert deemed qualified by EPA. The assessment shall include mapping and physical inspection of affected banks, streambeds and 15 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 32 of 69 adjoining shorelines of all impacted areas. As part of the assessment, TVA shall identify the mechanisms of mobilization and deposition of the ash material in the surface water bodies and adjacent riparian areas affected by the release and identify locations and depths of the ash in these water areas and the changes in these parameters over an appropriate period of time, as determined by field measurements. This assessment shall also include an evaluation of the impacts to habitats due to the release, and prediction of future impacts to aquatic species upon re-suspension and deposition of ash. Based on the results of this assessment, TVA shall propose, as a part of the EE/CA process outlined in Paragraph 30, above, final cleanup criteria which address removal of ash from stream/slough/river beds, banks, floodplains, adjacent wetlands and the shorelines adjoining navigable waters, replanting of the riparian zone, and compensatory mitigation for any permanent loss to waters of the United States as approved by EPA in consultation with TDEC. XIII. HEALTH AND SAFETY PLAN 35. Within fourteen (14) days after the Effective Date of this Order, TVA shall submit for EPA review and approval, a plan that ensures the protection of the public health and safety during performance of on-Site Work under this Order. This plan shall be prepared in accordance with EPA’s Standard Operating Safety Guide (PUB 9285.103, PB 92-963414, June 1992). In addition, the plan shall be consistent with Occupational Safety and Health Administration (OSHA) provisions for response action worker safety and health found in 29 C.F.R. Part 1910. TVA shall incorporate all changes to the plan recommended by EPA, and implement the plan during the pendency of the response actions. The Plan shall also include contingency planning. XIV. QUALITY ASSURANCE AND SAMPLING 36. a) All sampling and analyses performed pursuant to this Order shall conform with EPA guidance regarding sampling, quality assurance/quality control (QA/QC), data validation, and chain of custody procedures. TVA shall ensure that the laboratories used to perform the analyses participate in a QA/QC program that complies with the appropriate EPA guidance. TVA shall follow “Quality Assurance/Quality Control Guidance for Removal Activities: Sampling QA/QC Plan and Data Validation Procedures” (OSWER Directive Number 9360.4-01, April 1, 1990), as guidance for QA/QC and sampling. TVA shall only use laboratories that have a documented Quality System that complies with ANSI/ASQC E-4 1994, “Specifications and Guidelines for Quality Systems for Environmental Data Collection and Environmental Technology Programs” (American National Standard, January 5, 1995), and “EPA Requirements for Quality Management Plans (QA/R-2) (EPA/240/B-01/002, March 2001),” or equivalent documentation as determined by EPA. EPA may consider laboratories accredited under the National Environmental Laboratory Accreditation Program (NELAP) as meeting the Quality System requirements. b) As a part of EPA’s oversight of QA/QC and data validation, EPA may request, and TVA shall then require, that any laboratory TVA is using analyze samples submitted 16 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 33 of 69 by EPA for QA monitoring. TVA shall provide to EPA the QA/QC procedures followed by all sampling teams and laboratories performing data collection and/or analysis. c) Upon request by EPA, TVA shall allow EPA or its authorized representatives to take split and/or duplicate samples. EPA shall have the right to take any additional samples that EPA deems necessary. Upon request, EPA shall allow TVA to take split or duplicate samples of any samples it takes as part of its oversight of TVA’s implementation of the Work. XV. POST-REMOVAL SITE CONTROL 37. In accordance with the EPA-approved schedule, TVA shall submit a proposal for post-removal site control consistent with Section 300.415(l) of the NCP and OSWER Directive No. 9360.2-.02. Upon EPA approval, TVA shall implement such controls and shall provide EPA with documentation of all post-removal site control arrangements. XVI. REPORTING 38. TVA shall submit written progress reports to EPA and TDEC on a weekly basis for all time-critical response actions and on a monthly basis for all non-time-critical response actions undertaken pursuant to this Order until termination of the Order, unless the EPA OSC or RPM and TDEC agree in writing that reports can be less frequent. These reports shall describe all significant developments during the preceding period, including the actions performed and any problems encountered, analytical data received during the reporting period, and the developments anticipated during the next reporting period, including a schedule of work to be performed, anticipated problems, and planned resolutions of past or anticipated problems. During the removal phases of the cleanup, these reports (i.e., Pollution Reports/Situation Reports) shall conform to EPA’s Guidance for Preparing POLREPs/SITREPs, OSWER Directive No. 9360.3-03 (Dec. 2007). At the conclusion of all time-critical removal actions, and at the conclusion of all non-timecritical removal actions, TVA shall submit Final Pollution Reports in accordance with the POLREP/SITREP Guidance. At the time they are submitted to EPA and TDEC, TVA shall make all progress reports available to the public by placing them in the local Site Repository and on the established TVA Kingston release website. 39. TVA shall utilize SCRIBE or SCRIBE.Net, as well as ArcMap 9.3, for data management and reporting purposes. 40. During the pendency of this Order, TVA and any successor(s) in title shall, at least thirty (30) days prior to the conveyance of any interest in real property at the Site, give written notice of this Order to the transferee and written notice to EPA and the State of the proposed conveyance, including the name and address of the transferee. The party conveying such an interest shall require that the transferee comply with Section XXII of this Order (Site Access). 17 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 34 of 69 41. Final OSC Reports. Within sixty (60) days after completion of all timecritical removal actions, and, again, within sixty (60) days after the completion of all nontime-critical removal actions required under this Order, TVA shall submit for EPA review and approval final reports summarizing the actions taken to comply with this Order. The final reports shall conform, at a minimum, with the requirements set forth in Section 300.165 of the NCP entitled “OSC Reports” and EPA’s “Superfund Removal Procedures: Removal Response Reporting,” OSWER Directive No. 9360.3-03, June 1, 1994. The final OSC reports shall include a listing of quantities and types of materials addressed, a discussion of response and disposal options considered for those materials, a listing of the ultimate destinations of those materials, and a presentation of the analytical results of all sampling and analyses performed. The final OSC reports shall also include the following certification signed by a person who supervised or directed the preparation of the reports: Under penalty of law, I certify that to the best of my knowledge, after appropriate inquiries of all relevant persons involved in the preparation of the report, the information submitted is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations. XVII. OFF-SITE SHIPMENTS AND OTHER DISPOSAL OF WASTE MATERIAL 42. TVA shall, prior to any off-Site shipment of Waste Material from the Site to an out-of-state waste management facility, provide written notification of such shipment of Waste Material to the appropriate state environmental official in the receiving facility’s state and to the EPA OSC/RPM. However, this notification requirement shall not apply to any off-Site shipments when the total volume of all such shipments will not exceed ten (10) cubic yards. 43. TVA shall include in the written notification the following information: 1) the name and location of the facility to which the Waste Material is to be shipped; 2) the type and quantity of the Waste Material to be shipped; 3) the expected schedule for the shipment of the Waste Material; and 4) the method of transportation. TVA shall notify the state in which the planned receiving facility is located of major changes in the shipment plan, such as a decision to ship the Waste Material to another facility within the same state, or to a facility in another state. 44. The identity of the receiving facility and state will be determined by TVA. TVA shall provide the information required by Paragraphs 42 and 43 as soon as practicable before the Waste Material is actually shipped. 45. TVA shall not permanently dispose of any Waste Material at an off-Site facility, or in a new landfill on-Site, unless that facility or landfill is operating in compliance with RCRA Subtitle D permitting requirements for operation and disposal of industrial wastes which, at a minimum, shall include the use of a synthetic liner, leachate 18 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 35 of 69 collection system, groundwater monitoring, financial assurance, and closure and postclosure care. If TVA proposes to permanently dispose of any Waste Material to an existing landfill on-Site, it must satisfy both TDEC and EPA that such disposal complies with all state permitting requirements and is otherwise protective of human health and the environment. EPA may disapprove such disposal if it is not so satisfied. Prior to any offSite shipment, TVA shall obtain EPA's determination that the proposed receiving facility is operating in compliance with the requirements of 40 C.F.R. § 300.440, as well as appropriate health and safety standards. XVIII. PERMITS 46. TVA shall be responsible for obtaining all required Federal, State and local permits which are necessary for the performance of all Work under this Order. 47. The Parties recognize that under Sections 121(d) and 121(e)(1) of CERCLA, 42 U.S.C. §§ 9621(d) and 9621(e)(1), and the NCP, portions of the response actions called for by this Order that are conducted entirely on-Site, where such response actions are selected and carried out in accordance with CERCLA, are exempt from the procedural requirement to obtain Federal, State, or local permits. Subject to Paragraph 34 above, all on-Site response actions must, however, comply with all the applicable or relevant and appropriate Federal and State standards, requirements, criteria, or limitations, which would have been included in any such permit unless justification exists for a waiver and EPA, in consultation with TDEC, approves such a waiver. XIX. EMERGENCY RESPONSE AND NOTIFICATION OF RELEASES 48. In the event of any action or occurrence during performance of the Work which causes or threatens a release of Waste Material from the Site that constitutes an emergency situation or may present an immediate threat to public health or welfare or the environment, TVA shall immediately take all appropriate action. TVA shall take these actions in accordance with all applicable provisions of this Order, including, but not limited to, the Health and Safety Plan, in order to prevent, abate or minimize such release or endangerment caused or threatened by the release. TVA shall also immediately notify the EPA OSC/RPM as appropriate, or, in the event of his unavailability, the Regional Duty Officer at 404-562-8700, of the incident or Site conditions. In the event that TVA fails to take appropriate response action as required by this Paragraph, and EPA takes such action instead, TVA shall reimburse EPA all costs of the response action not inconsistent with the NCP pursuant to Section XXV (Reimbursement of Costs). 49. In addition, in the event of any new release of a hazardous substance from the Site above applicable reportable quantities, TVA shall immediately notify the OSC/RPM as appropriate, the Regional Duty Officer at 404-562-8700, and the National Response Center at (800) 424-8802. TVA shall submit a written report to EPA within seven (7) days after each release, setting forth the events that occurred and the measures taken or to be taken to mitigate any release or endangerment caused or threatened by the release and to prevent the reoccurrence of such a release. This reporting requirement is in addition 19 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 36 of 69 to, and not in lieu of, reporting under Section 103(c) of CERCLA, 42 U.S.C. § 9603(c), and Section 304 of the Emergency Planning and Community Right-To-Know Act of 1986, 42 U.S.C. § 11004, et seq., as applicable. XX. AUTHORITY OF EPA ON-SCENE COORDINATOR/REMEDIAL PROJECT MANAGER 50. EPA and TVA agree that EPA’s OSC and/or RPM, shall be responsible for overseeing TVA’s implementation of this Order, in consultation with TDEC and TVA’s Project Coordinator. TVA and EPA further agree that the EPA OSC and/or RPM, in consultation with TDEC and the TVA Project Coordinator, shall have the authority to halt any Work required under this Order, or to conduct or direct other response action at the Site in an emergency or under circumstances that may present an immediate threat to public health, welfare or the environment. Absence of the EPA OSC or RPM from the Site shall not be cause for stoppage of work unless specifically directed by the EPA OSC or RPM after consultation with TDEC and the TVA Project Coordinator. XXI. PUBLIC REVIEW OF ADMINISTRATIVE RECORD 51. Upon issuance of this Order, the Administrative Record supporting the issuance of this Order, as well as the Order itself, shall be made available for public comment for a period of thirty (30) days. The Administrative Record will be available for public review during normal business hours at the U.S. EPA Region 4 Records Center, 61 Forsyth Street, SW, 11th Floor, Atlanta, Georgia 30303, and the local Site Repository that is established under the Order. Within thirty (30) days following close of the public comment period, EPA shall provide a written response to significant comments that were received. The public comment period shall not delay the initiation of the Work required by this Order. However, EPA may seek modifications to this Order if public comments received during the comment period disclose facts or considerations which indicate that this Order is inappropriate, improper, or inadequate. 52. Upon selection or proposal of response activities pursuant to this Order, an Administrative Record(s) for such response activities will be established and made available for public review and comment in accordance with Paragraphs 29, 30 and 31, above. XXII. SITE ACCESS 53. TVA shall use its best efforts to provide and/or obtain access to all areas to which access is necessary to implement this Order. Such access shall be provided to EPA and TDEC as well as their employees, contractors, agents, consultants, designees and representatives. Access provided and/or obtained by TVA shall permit these individuals to move freely on-Site and at appropriate off-Site areas in order to conduct actions which EPA, in consultation with TDEC, determines to be necessary. 20 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 37 of 69 54. Where action under this Order is to be performed in areas owned by or in possession of someone other than the United States, TVA shall use its best efforts to obtain all necessary access agreements in a timely fashion. TVA shall immediately notify EPA and TDEC if, after using its best efforts, it is unable to obtain such agreements. TVA shall describe in writing its efforts to obtain access. EPA or TDEC may then assist TVA in gaining access, to the extent necessary, to effectuate the response actions described herein, using such means as EPA or TDEC deems appropriate. TVA shall reimburse EPA and/or TDEC for all reasonable costs and attorneys’ fees, if any, incurred by them in obtaining such access. XXIII. ACCESS TO INFORMATION 55. TVA shall provide to EPA, upon request, copies of all documents and information within its possession or control or that of its contractors or agents relating to activities at the Site or to the implementation of this Order, including, but not limited to, sampling, analysis, chain of custody records, manifests, trucking logs, receipts, reports, sample traffic routing, correspondence, or other documents or information related to the Work. TVA shall also make available to EPA at reasonable times, for purposes of investigation, information gathering, or testimony, their employees, agents, or representatives with knowledge of relevant facts concerning the performance of the Work. 56. TVA may assert business confidentiality claims covering part or all of the documents or information submitted to EPA under this Order to the extent permitted by and in accordance with Section 104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R. § 2.203(b). Documents or information determined to be confidential by EPA will be afforded the protection specified in 40 C.F.R. Part 2, Subpart B. If no claim of confidentiality accompanies documents or information when they are submitted to EPA, or if EPA has notified TVA that the documents or information are not confidential under the standards of Section 104(e)(7) of CERCLA or 40 C.F.R. Part 2, Subpart B, the public may be given access to such documents or information without further notice to TVA. 57. TVA may assert that certain documents, records and other information are privileged under the attorney-client privilege or any other privilege recognized by federal law. If TVA asserts such a privilege in lieu of providing documents, it shall provide EPA with the following: 1) the title of the document, record, or information; 2) the date of the document, record, or information; 3) the name and title of the author of the document, record, or information; 4) the name and title of each addressee and recipient; 5) a description of the contents of the document, record, or information; and 6) the privilege asserted by TVA. However, no documents, reports or other information created or generated pursuant to the requirements of this Order shall be withheld on the grounds that they are privileged. 58. No claim of confidentiality shall be made with respect to any data, including, but not limited to, all sampling, analytical, monitoring, hydrogeologic, scientific, 21 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 38 of 69 chemical, or engineering data, or any other documents or information evidencing conditions at or around the Site. XXIV. RECORD RETENTION, DOCUMENTATION, AVAILABILTY OF INFORMATION 59. TVA shall preserve all documents and information relating to the Work performed under this Order, or relating to the release of fly ash from the Kingston Fossil Fuel Plant, in accordance with federal law and TVA’s established document retention policies, but in no event shall such records be preserved for less than ten (10) years. At the end of this document retention period, and thirty (30) days before any document or information is destroyed, TVA shall notify EPA that such documents and information are available to EPA for inspection and, upon request, shall provide the originals or copies of such documents and information to EPA to the extent that they are not subject to any privilege. In addition, TVA shall provide documents and information retained under this Paragraph at any time before expiration of its document retention timeframe at the written request of EPA to the extent that they are not subject to any privilege. TVA shall also instruct its contractors and agents to preserve all documents, records, and information of whatever kind, nature or description relating to performance of the Work. XXV. REIMBURSEMENT OF COSTS 60. Payment of Past Response Costs. TVA shall pay, within thirty (30) days after TVA's receipt from EPA of a demand for payment, EPA's Past Response Costs. EPA’s Past Costs demand will include a SCORPIOS Report, which summarizes direct and indirect costs incurred by EPA and its contractors. a) Payment shall be made by Electronic Funds Transfer and directed to the Federal Reserve Bank of New York as follows: Federal Reserve Bank of New York, ABA=021030004, Account =68010727, SWIFT address = FRNYUS33, 33 Liberty Street, New York, New York 10045, Field Tag 4200 of the Fedwire message should read "D68010727 Environmental Protection Agency," and shall be accompanied by a statement identifying the name and address of TVA, the Site name, the EPA Region, Site/Spill ID Number A4XP, and the EPA docket number for this action. b) At the time of payment, TVA shall send notice that such payment has been made to EPA individuals identified in Section XL (Notices and Submissions), with a copy to: Paula Painter Environmental Protection Specialist U.S. Environmental Protection Agency, Region 4 61 Forsyth St., SW Atlanta, Georgia 30303 and 22 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 39 of 69 EPA Cincinnati Finance Office 26 Martin Luther King Dr. Cincinnati, Ohio 45268 c) The total amount to be paid by TVA pursuant to this Paragraph shall be deposited in the TVA Kingston Fossil Fuel Plant Release Site Special Account within the EPA Hazardous Substance Superfund to be retained and used to conduct or finance response actions at or in connection with the Site, or to be transferred by EPA to the EPA Hazardous Substance Superfund. 61. Payment of Future Response Costs. TVA shall pay EPA all Future Response Costs not inconsistent with the NCP. On a periodic basis, EPA will send TVA a bill requiring payment that includes a SCORPIOS Report, which includes direct and indirect costs incurred by EPA and its contractors. TVA shall make all payments within thirty (30) days of receipt of each bill requiring payment, except as otherwise provided in Paragraph 63 of this Order. a) Payment shall be made by Electronic Funds Transfer and directed to the Federal Reserve Bank of New York as follows: Federal Reserve Bank of New York, ABA=021030004, Account =68010727, SWIFT address = FRNYUS33, 33 Liberty Street, New York, New York 10045, Field Tag 4200 of the Fedwire message should read "D68010727 Environmental Protection Agency," and shall be accompanied by a statement identifying the name and address of TVA, the Site name, the EPA Region, Site/Spill ID Number A4XP, and the EPA docket number for this action. b) At the time of payment, TVA shall send notice that such payment has been made to the EPA individuals identified in Section XL (Notices and Submissions), with a copy to: Paula Painter Environmental Protection Specialist U.S. Environmental Protection Agency, Region 4 61 Forsyth St., SW Atlanta, Georgia 30303 and EPA Cincinnati Finance Office 26 Martin Luther King Dr. Cincinnati, Ohio 45268 c) The total amount to be paid by TVA pursuant to this Paragraph shall be deposited in the TVA Kingston Fossil Fuel Plant Release Site Special Account within the EPA Hazardous Substance Superfund to be retained and used to conduct or finance 23 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 40 of 69 response actions at or in connection with the Site, or to be transferred by EPA to the EPA Hazardous Substance Superfund. 62. In the event that payment for Past Response Costs or Future Response Costs is not made within thirty (30) days of TVA's receipt of a bill, TVA shall pay Interest on the unpaid balance. The Interest on Past Response Costs and Future Response Costs shall begin to accrue on the date of the bill and shall continue to accrue until the date of payment. Payments of Interest made under this Paragraph shall be in addition to such other remedies or sanctions available to EPA by virtue of TVA's failure to make timely payments under this Section, including but not limited to, payment of stipulated penalties pursuant to Section XXVIII. 63. TVA may dispute all or part of a bill for Past Response Costs or Future Response Costs submitted under this Order, if TVA alleges that EPA has made an accounting error, or if TVA alleges that a cost item is inconsistent with the NCP. Upon request, EPA will make available to TVA detailed documentation of any costs it has billed. If any dispute over costs is resolved before payment is due, the amount due will be adjusted as necessary. If the dispute is not resolved before payment is due, TVA shall pay the full amount of the uncontested costs to EPA as specified in Paragraphs 60 or 61 on or before the due date. Within the same time period, TVA shall pay the full amount of the contested costs into an interest-bearing escrow account. TVA shall simultaneously transmit a copy of both payments to the EPA person(s) identified in Section XL (Notices and Submissions) and in Paragraphs 60(b) and 61(b) above. TVA shall ensure that the prevailing party in the dispute shall receive the amount upon which they prevailed from the escrow funds plus interest within fifteen (15) days after the dispute is resolved. XXVI. DISPUTE RESOLUTION 64. If a dispute arises under this Order, the procedures of this Section (Dispute Resolution) shall apply. The Parties, in consultation with TDEC, shall make reasonable efforts to informally resolve disputes at the OSC/RPM/Project Coordinator level. 65. If TVA objects to any EPA action or determination, including any EPA disapproval, modification, or other decision taken pursuant to this Order, TVA shall notify EPA in writing of its objections, and the basis thereof, within fifteen (15) days of such action. Such notice shall set forth the specific points of the dispute, the position which TVA asserts should be adopted as consistent with the requirements of this Order, the basis for TVA’s position, and any matters which it considers necessary for EPA’s determination. For purposes of this Order, EPA actions, orders or determinations will include those actions taken by or on behalf of EPA or any of its employees, agents or designees. 66. EPA and TVA shall have an additional fifteen (15) calendar days from receipt by EPA of the notification of objection (Negotiation Period), during which time representatives of EPA and TVA may confer in person or by telephone to resolve any disagreement. If an agreement is reached during the Negotiation Period, the resolution 24 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 41 of 69 shall be in writing, signed by an authorized representative of both Parties. Such agreement shall be incorporated into and become an enforceable part of this Order. The Negotiation Period may be extended at the sole discretion of EPA, although such extensions shall not be unreasonably withheld. EPA’s decision regarding an extension of the Negotiation Period shall not constitute an EPA action subject to dispute resolution. 67. If the Parties are unable to reach an agreement within the Negotiation Period, the dispute shall be elevated to the Superfund Division Director of EPA Region 4 and the Senior Vice President of TVA’s Office of Environment and Research. The Superfund Division Director and TVA’s Senior Vice President shall have an additional five (5) days to resolve the dispute and issue a written decision signed by both Parties. If the Superfund Division Director and TVA’s Senior Vice President cannot reach a mutual agreement within the five-day period, the Superfund Division Director will issue a written decision on the dispute to TVA that provides the basis for his or her decision. This decision shall be incorporated into and become an enforceable part of this Order. TVA’s obligations under this Order shall not be tolled by submission of any objections for dispute resolution under this Section. 68. Following resolution of the dispute, as provided by this Section, TVA shall fulfill the requirement that was the subject of the dispute in accordance with the agreement reached or in accordance with EPA’s decision, whichever occurs. XXVII. FORCE MAJEURE 69. TVA agrees to perform all requirements under this Order within the time limits established in any EPA-approved schedule or work plan unless the performance is delayed by a force majeure for which an extension of the schedule shall be provided. For purposes of this Order, force majeure is defined as any event arising from causes beyond the control of TVA, or of any entity controlled by TVA, including but not limited to its contractors and subcontractors, that delays or prevents performance of any obligation under this Order, despite TVA’s best efforts to fulfill the obligation. For purposes of this Order, force majeure includes, but is not limited to: Acts of God; fire; war; insurrection; civil disturbance; adverse weather conditions that could not have been reasonably anticipated; restraint by court order or order of public authority; or inability to obtain, after exercise of reasonable diligence, any necessary authorizations, approvals, permits or licenses due to action or inaction of any governmental agency or authority other than TVA. Force majeure does not include financial inability to complete the Work or increased cost of performance. 70. If any event occurs or has occurred that may delay the performance of any obligation under this Order, whether or not caused by a force majeure event, TVA shall verbally notify EPA within forty-eight (48) hours after TVA becomes or should have become aware that the event might cause a delay. Within five (5) days thereafter, TVA shall provide to EPA in writing an explanation of the event causing the delay or anticipated delay; the anticipated length of delay, including necessary demobilization and re-mobilization; the measures taken or to be taken to minimize the delay; the timetable 25 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 42 of 69 for implementation of the measures; TVA’s rationale for attributing such delay to a force majeure event if it intends to assert such a claim; and a statement as to whether, in TVA’s opinion, such event may cause or contribute to an endangerment to public health, welfare, or the environment. TVA shall take all reasonable measures to avoid and minimize the delay. Failure to comply with the notice provision of this Paragraph shall waive any claim of force majeure by TVA unless forgiven by EPA in its sole discretion. 71. If EPA determines that the delay in performance of a requirement under this Order is or was attributable to a force majeure event, the time period for performance of that requirement shall be extended as deemed necessary by EPA. Such an extension shall not alter TVA’s obligation to perform or complete other tasks required by the Order which are not directly affected by the force majeure event. XXVIII. STIPULATED PENALTIES 72. EPA may assess stipulated penalties against TVA for violations of this Order in the amounts set forth below, unless excused under Section XXVII (Force Majeure). Compliance by TVA shall include completion of the activities under this Order in accordance with all applicable requirements of law, this Order, and the time schedules and work plans established and approved under this Order. 73. Stipulated Penalty Amounts – Work. For each day TVA is in violation of an established schedule for the Work, EPA may assess a stipulated penalty for each violation up to the identified amounts shown below: Penalty Per Violation Per Day $1,500.00 $2,500.00 $5,000.00 Period of Noncompliance 1st through 14th day 15th through 30th day 31st day and beyond 74. Stipulated Penalty Amounts – Work Plans and Reports. For each day TVA fails to submit timely or adequate work plans, reports, or other written documents pursuant to this Order, EPA may assess a stipulated penalty for each violation up to the identified amounts shown below: Penalty Per Violation Per Day $500.00 $1000.00 $2000.00 Period of Noncompliance 1st through 14th day 15th through 30th day 31st day and beyond In no event shall this Paragraph give rise to a stipulated penalty in excess of the amount set forth in Section 109 of CERCLA, 42 U.S.C. § 9609. 75. Stipulated penalties under this Section shall begin to accrue on the day after performance is due or the day a violation occurs, whichever is applicable, and shall continue to accrue until performance is satisfactorily completed or until the violation 26 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 43 of 69 ceases. However, stipulated penalties shall not accrue with respect to an issue subject to the Dispute Resolution provisions hereof, during the period, if any, after the conclusion of the Negotiation Period until the date that EPA issues a final decision regarding such dispute. Nothing herein shall prevent the simultaneous accrual of separate penalties for separate violations of this Order. 76. Stipulated penalties accruing under this Section shall become due and payable to EPA within thirty (30) days after TVA’s receipt from EPA of a demand for payment of the penalties. Nothing in this Section is intended to create a debt or payment obligation to EPA unless EPA issues a written demand to TVA. All payments to EPA under this section shall be made by Electronic Funds Transfer as described in Section XXV. Stipulated penalties accruing during any dispute resolution period need not be paid until fifteen (15) days after the dispute is resolved by agreement, or by receipt of EPA’s final decision. Only those penalties determined in the agreement or decision to be owing shall be due. 77. The payment of penalties shall not alter in any way TVA’s obligations to complete performance of the Work required under this Order. Notwithstanding any other provision of this Section, EPA may, in its unreviewable discretion, waive any portion of stipulated penalties that have accrued pursuant to this Order. In exercising this discretion, EPA recognizes that TVA is an executive federal agency and instrumentality and that it conducts its activities on a not-for-profit basis in accordance with the TVA Act. XXIX. COVENANT NOT TO TAKE ADMINISTRATIVE ACTION BY EPA 78. Upon issuance of a Notice of Completion by EPA as set forth in Section XXXVIII, EPA covenants not to take administrative action against TVA pursuant to Section 106 and 107(a) of CERLCA, 42 U.S.C. §§ 9606 and 9607(a) for the Work, Past Response Costs and Future Response Costs. This covenant is conditioned upon the complete and satisfactory performance by TVA of its obligations under this Order. XXX. RESERVATION OF RIGHTS BY EPA 79. Nothing herein shall limit the available power and authority of EPA to take, direct, or order all actions necessary to protect public health, welfare or the environment or to prevent, abate, or minimize an actual or threatened release of hazardous substances, pollutants or contaminants, or hazardous or solid waste on, at, or from the Site. 80. The Covenant Not To Take Administrative Action set forth in Section XXIX does not pertain to any matters other than those expressly identified therein. EPA reserves, and this Order is without prejudice to, all rights against TVA with respect to all other matters, including, but not limited to: a. claims based on a failure by TVA to meet a requirement of this Order; 27 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 44 of 69 b. liability for costs not included within the definition of Past and Future Response Costs; c. liability for penalties other than for noncompliance with this Order; d. liability for performance of response actions other than the Work specifically performed under this Order; e. criminal liability; f. liability for damages for injury to, destruction of, or loss of natural resources, and for the cost of any natural resource damages assessments; and g. liability arising from the past, present, or future disposal, release or threat of a release of hazardous substances, pollutants or contaminants outside of the Site. XXXI. COVENANT NOT TO SUE BY TVA 81. TVA agrees not to assert any claims or causes of action against EPA, or its agents, contractors or employees, with respect to the Work, Past Response Costs, or Future Response Costs, or any other terms of this Order, including, but not limited to, any direct or indirect claim from or against EPA based on 42 U.S.C. §§ 9606(b)(2), 9607, 9611, 9612 or 9613, or any other provision of law, or any claims arising out of response activities at the Site. This does not prevent TVA from invoking Dispute Resolution pursuant to this Order. 82. Nothing in this Order shall be deemed to constitute approval or preauthorization of a claim within the meaning of 42 U.S.C. § 9611, or 40 C.F.R. § 300.700(d). XXXII. OTHER CLAIMS 83. By issuance of this Order, EPA assumes no liability for injuries or damages to persons or property resulting from any acts or omissions of TVA. EPA shall not be deemed a party to any contract entered into by TVA or its directors, officers, employees, agents, successors, representatives, assigns, contractors, or consultants in carrying out actions pursuant to this Order. TVA shall bear its own litigation costs and attorneys’ fees. 84. Except as expressly provided in Section XXIX (Covenant Not to Take Administrative Action by EPA), nothing in this Order constitutes a satisfaction of, or release by EPA from, any claim or cause of action against TVA or any person not a party to this Order, for any liability such person may have under CERCLA, the Clean Water Act, RCRA, other statutes, or the common law. 28 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 45 of 69 85. In any subsequent proceeding initiated by EPA for injunctive or other appropriate relief relating to the Site, TVA shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon any contention that the claims raised by EPA in the subsequent proceeding were or should have been raised in the present matter. 86. No action or decision by EPA or TVA pursuant to this Order shall give rise to any right to judicial review, except as set forth in Section 113(h) of CERCLA, 42 U.S.C. § 9613(h). XXXIII. CONTRIBUTION 87. The Parties agree that TVA is entitled, as of the Effective Date, to protection from contribution actions or claims as provided by 42 U.S.C. §§ 9613(f)(2) and 9622, for “matters addressed” in this Order. For purposes of this Paragraph, the “matters addressed” in this Order are the Work, Past Response Costs and Future Response Costs. Nothing in this Order precludes EPA or TVA from asserting any claims, causes of action, or demands against any persons not parties to this Order for indemnification, contribution, or cost recovery. XXXIV. INDEMNIFICATION 88. TVA shall indemnify, save and hold harmless EPA, its officials, agents, employees, contractors, subcontractors and representatives from any and all claims or causes of action arising from, or on account of, negligent acts of TVA, its officers, directors, employees, agents, contractors or subcontractors in carrying out actions pursuant to this Order. In addition, TVA agrees to pay EPA all costs incurred by EPA, including but not limited to attorneys’ fees and other expenses, arising from or on account of claims made against EPA based on negligent acts of TVA, its officers, directors, employees, agents, contractors, subcontractors and any persons acting on behalf of or under their control, in carrying out activities pursuant to this Order. EPA shall not be held out as a party to any contract entered into by or on behalf of TVA in carrying out activities under this Order. Neither TVA nor any of its contractors shall be considered an agent of EPA nor shall EPA or any of its contractors be considered an agent of TVA. 89. EPA shall give TVA notice of any claim for which EPA plans to seek indemnification pursuant to this Section and shall consult with TVA prior to settling such claim. 90. TVA waives all claims against EPA for damages or reimbursement or for setoff of any payments made or to be made to EPA, arising from or on account of any contract, agreement, or arrangement between TVA and any person for performance of Work on or relating to the Site, including, but not limited to, claims on account of construction delays. In addition, TVA shall indemnify and hold harmless EPA with respect to any claims for damages or reimbursement arising from or on account of any 29 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 46 of 69 contract, agreement, or arrangement between TVA and any person for performance of Work on or relating to the Site, including, but not limited to, claims on account of construction delays. XXXV. MODIFICATIONS 91. The EPA OSC or RPM, may, after notification to and consultation with TDEC and TVA, require modifications to any plan or schedule under this Order in writing or by oral direction. If EPA’s OSC or RPM makes an oral modification, it shall be memorialized in writing within three (3) days thereafter; provided, however, that the effective date of the modification shall be the date of EPA’s oral direction. Any other requirements of this Order may be modified in writing by mutual agreement of the Parties. 92. If TVA seeks permission to deviate from any approved plan or schedule, it shall submit a written request to EPA, and provide a copy to TDEC. TVA may not proceed with the requested deviation until receiving oral or written approval from EPA. TVA’s written request for modification shall specify: (1) the proposed modification; (2) the basis for the modification; and (3) any related schedule or deadline that would be affected if the modification were granted. . 93. No informal advice, guidance, suggestions, or comment by EPA regarding reports, plans, specifications, schedules or any other writing submitted by TVA shall relieve TVA of its obligation to obtain any formal approval as may be required by this Order, and to comply with all requirements of this Order, unless it is formally modified. XXXVI. ADDITIONAL ACTIONS 94. EPA may, after notification to and consultation with TDEC and TVA, determine that additional actions, not included in an approved plan, are necessary to protect public health, welfare, or the environment at the Site in connection with the December 22, 2008, ash release. Unless otherwise stated by EPA, within thirty (30) days of receipt of notice from EPA that additional actions are necessary to protect public health, welfare, or the environment, TVA shall submit for approval by EPA, a work plan for the additional Work. Upon approval of the plan by EPA, TVA shall implement the plan for additional Work in accordance with the provisions and schedule contained therein. This Paragraph does not diminish or alter the EPA OSC’s or RPM’s authority to make oral modifications to any plan or schedule pursuant to Section XXXV (Modifications). XXXVII. COMMUNITY RELATIONS 95. TVA agrees to comply with all applicable laws and regulations, including CERLCA and the NCP, as well as all EPA policy and guidance, concerning community relations programs and public participation requirements, including, but not limited to, 40 C.F.R. §§ 300.415(n), 300.430(c) and 300.155. 30 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 47 of 69 96. TVA has developed and is implementing a community outreach plan. This plan responds to the need for an interactive relationship with interested community elements regarding environmental response activities being conducted by TVA at the Site. Within ninety (90) days of the Effective Date of this Order, TVA shall submit a Community Involvement Plan that specifically addresses the requirements of §§ 300.415(n) and 300.430(c) of the NCP to EPA for review and approval and shall provide a copy of the plan to TDEC. Pending EPA approval of the plan, TVA shall continue its community outreach efforts. Any proposed revision or amendment to TVA’s Community Involvement Plan shall also be submitted to EPA for review and approval, and a copy of the revision or amendment shall be provided to TDEC. 97. Before issuance of any proposed press release regarding the selection or implementation of removal or remedial actions at the Site, TVA shall advise and consult with the EPA OSC/RPM and TDEC regarding the contents thereof. 98. In addition to any other relevant provisions of this Order, TVA agrees that Work conducted under this Order and any subsequent proposed response actions arising out of this Order shall comply with all the Administrative Record and public participation requirements of CERCLA, including Sections 113(k) and 117, 42 U.S.C. §§ 9613(k) and 9617, the NCP, and all applicable guidance. 99. TVA shall establish and maintain an Administrative Record File(s) at or near the Kingston Plant, in accordance with CERCLA Section 113(k), 42 U.S.C. § 9613(k), Subpart I of the NCP, and applicable EPA guidance. Within five (5) business days of the Effective Date of this Order, TVA shall establish a Site Repository at or near the Site and notify EPA of its location. The Site Repository developed by TVA shall be periodically updated and a copy of the Index to the Administrative Record File(s) will be provided to EPA. TVA will provide to EPA on request any document in the local Site Repository. 100. Within thirty (30) days of a request by EPA, TVA shall provide EPA with a Technical Assistance Plan (TAP) for providing and administering $50,000 of TVA’s funds to be used by a qualified community group to hire independent technical advisors during the response activities performed to address the mid-term and longer-term strategic Site objectives as identified in Paragraph 26 above. If EPA disapproves of or requires revisions to the TAP, in whole or in part, other than with respect to the amount of funding to be provided, TVA shall amend and submit to EPA a revised TAP that is responsive to EPA’s comments within fifteen (15) days of receiving EPA’s comments. XXXVIII. NOTICE OF COMPLETION 101. Following completion of all Work performed under this Order, TVA shall prepare and submit to EPA and TDEC a Completion Report to show that all required response actions have been completed. The information provided therein shall document compliance with the requirements of this Order and provide a consolidated record of all 31 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 48 of 69 response activities at the Site. In order for a Site to be eligible for completion, the following criteria must be met: a) Response Objectives specified have been met, and all cleanup actions and other measures identified have been successfully implemented; b) The Site is protective of human health and the environment; c) Land use controls are in place as appropriate; and d) The only remaining activities, if any, at the Site are long-term management activities (which may include long-term monitoring). Information provided for response action completion shall be signed by TVA’s signatory authority or designee, certifying that response activities have been completed in full satisfaction of the requirements of this Order and Agreement. When EPA determines, after EPA’s review of the Completion Report, that all Work has been fully performed in accordance with this Order, all monies owing pursuant to Sections XXV and XXVIII (if any) have been paid, and the Site meets the criteria for completion set forth in this Section, EPA will provide a written Notice of Completion to TVA. Upon issuance of the Notice of Completion by EPA, this Order shall terminate except for the continuing obligations set forth under Sections XV, XXIV, XXIX, XXX, XXXI, XXXIII, XXXIV, and long-term management activities identified in subparagraph “d” above. XXXIX. EFFECTIVE DATE 102. The Effective Date of this Order shall be the date on which it is signed by EPA. EPA shall provide TVA electronically a fully executed copy of this Order and Agreement in pdf. format as soon as possible after it has been signed by EPA and shall promptly mail to TVA a fully executed copy of the Order and Agreement. XL. NOTICES AND SUBMISSIONS 103. Whenever, under the terms of this Order, written notice is required to be given or a report or other document is required to be sent by one Party to another, its shall be directed to the individuals at the addresses specified below, unless those individuals or their successors give notice of a change to the other Party in writing. As to EPA: Mr. Leo Francendese U.S. EPA, Region 4 61 Forsyth Street, SW 32 Case Document 10 Atlanta, Georgia 30303 francendese.leo@epa. gov Mr. Craig Zeller US. EPA, Region 4 61 St., SW Atlanta, Georgia 30303 zeller.craig@epa.gov As to TVA: Anda Ray Filed 04/22/16 Page 49 of 69 Senior Vice President, Of?ce of Environment and Research Tennessee Valley Authority 400 West Summit Hill Drive WT 11 Knoxville, Tennessee 37902-1401 IT IS SO ORDERED AND AGREED: DATE: 1/104? 5/6/04 DATE: 33 BY: A. Stanley Meiburg Acting Regional Administrator Region 4 US. Environmental Protection Agency BWK Tom Eilgore Chief Executive Of? Tennessee Valley Authority Case Document 10 Filed 04/22/16 Page 50 of 69 Tennessee Valley Authority Regulatory Submittal for Kingston Fossil Plant EXHIBIT Documents submitted: Offsite Ash Disposal Options Plan (Revised) Date submitted 6! 29/ 2009 Submitted to whom Leo Francendese, EPA Coneurrenee Received Not Applicable TVA I: Anda Ray El El Mike Scott Copeland El Anderson El Dennis Yankee El David Stephenson El CI Cl El Received Not Applicable Jae-obs IE John Moe-hes Julie PfelTer 53 Jack Howard I: El Donna I: Paul Clay El Approvals .I 'Ih ?9 I TVA ?aw/5? Date 0? 7 a: If 107 75:22: 3: W. Case Document 10 Anda Ray, TVA Barbara Scott~ TDEC Leo EPA Mike Scott, TVA Dennis Yankee. TVA opeland, TVA Anderson, TVA John Moebes, aeobs EDM Julie Pt'effer, Jacobs David Stephensont TVA Michelle Ca gley. TVA Greg Signer, TVA KIF Incident Document Control Katie Kline, TVA Gretchen Wahl, aeobs Barbara Scott? TDEC Daimena Bowman? EPA Jel'TGary, Jacobs Filed 04/22/16 Page 51 of 69 Anda A Ray Case Document 10 Filed 04/22/16 Page 52 of 69 Tennessee Valley Authority, 4m W. Summit Hill Drive. Knoxville. Tennessee 3790.? ?nds A. Ray Senior Vice President Of?ce of Environment and Research June 301 2009 Mr. Leo Francendese U. 3. Environmental Protection Agency Region 4 61 Street Southwest Atlanta, Georgia 30303 By e-mail Dear Mr. Francendese: Please find enclosed the Off-Site Ash Disposal Options Analysis Work Plan. The enclosed work plan fulfills the requirements of Section IX, paragraph 281 item of the Administrative Order and Agreement on Consent. Please contact me if you have any questions. ibiu?iai? 7 Lira .2 Senior Vice President and Environmental Executive Office of Environment and Research WT 11A-K Sincerely, Enclosures Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 53 of 69 Offsite Ash Disposal Options Analysis 1. Introduction The Kingston Fossil Plant (KIF) is located at the confluence of the Emory and Clinch Rivers on Watts Bar Reservoir near Kingston, Tennessee. KIF is one of the Tennessee Valley Authority (TVA)’s larger fossil plants. It generates 10 billion kilowatt-hours of electricity a year, enough to supply the needs of about 670,000 homes in the Tennessee Valley. Plant construction began in 1951 and was completed in 1955. KIF has nine coal-fired generating units. The winter net dependable generating capacity is 1,456 megawatts. The plant consumes some 14,000 tons of coal a day. On Monday, December 22, 2008, just before 1 a.m., a coal fly ash spill occurred at TVA’s KIF, allowing a large amount of fly ash to escape into the adjacent waters of the Emory River. Ash, a by-product of a coal-fired power plant, is stored in containment areas. Failure of the dredge cell dike caused about 60 acres of ash in the 84-acre containment area to be displaced. At the time of the slide, the area contained about 9.4 million cubic yards (cy) of ash. The dike failure released about 5.4 million cy of coal ash that now covers about 300 acres, including most of Swan Pond Embayment, the lower Emory River, and reservoir shorelands. Fly ash filled the Swan Pond Embayment on the north side of the KIF property adjacent to the failed dredge cell. A dike has been constructed in the eastern portion of the Swan Pond Embayment to contain the fly ash to the west of the dike until further investigation and disposal options can be evaluated, approved by the regulators, and implemented. Fly ash also entered the channel and overbank areas of the riverine section of the Emory River. TVA is planning to recover the material outside of the Swan Pond Embayment by use of dredging operations. The fly ash that was released to the Emory River originates from the coal burned in boilers for power production at KIF. The coal, in its natural state, contains various metals that can be retained with the ash after burning. The ash itself is primarily composed of fine silica particles very similar to sand. Trace amounts of arsenic, selenium, cadmium, boron, thallium, and other metals which occur naturally in the coal remain in the ash after coal combustion. These metals are typically bound to the ash. Dredging is ongoing using hydraulic dredging with mechanical debris removal. The purpose of removing the ash from the river is to limit the potential for future ash migration and to prevent upstream flooding in the event of a large rainfall. The decision for dredging is documented in a Time-Critical Removal Action Memorandum. In general, dredged material is pumped into a Rim Ditch where solids settle out of the solution which is only about 5% solids initially. Further improvements in dredging efficiency will likely increase percent solids. The water continues flowing through a Sluice Ditch followed by the Ash Pond and then Ash Stilling Pond where further settlement occurs. Settled ash is removed from the ditches through mechanical excavation and windrowed to dry to between 70 and 80% solids. The ash processing area is sufficiently large to allow short-term staging of the ash awaiting transportation and disposal. Ash recovery and processing is discussed in more detail in the currently approved Ash Processing Area Construction and Operation Plan. A subsequent work plan for the time critical removal action will be generated presenting a revised approach to ash recovery and processing. Map 1 below shows the ash recovery areas. 1 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 54 of 69 Map 1 The decision to process, transport, and dispose of the ash recovered as part of the dredging is also documented in a Time-Critical Removal Action Memorandum. Two transportation methods were discussed in the action memorandum, trucking and rail. Under the Environmental Protection Agency (EPA) and TVA Administrative Order and Agreement on Consent, acceptable disposal locations are described as follows. “TVA shall not permanently dispose of any Waste Material at an off-Site facility, or in a new landfill on-Site, unless that facility or landfill is operating in compliance with RCRA Subtitle D permitting requirements for operation and disposal of industrial wastes which, at a minimum, shall include the use of a synthetic liner, leachate collection system, groundwater monitoring, financial assurance, and closure and post-closure care.” The purpose of this disposal evaluation is to consider acceptable offsite disposal locations and recommend one or more for the disposal of dredged ash material produced during the time critical removal phase of the cleanup along with processed ash. Some ash may remain onsite in the 2 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 55 of 69 short-term as part of the stockpile in the ash processing area or as part of a dredge cell embankment test. Because of the quantity of ash material that will be generated during the timecritical removal and the need for prompt action to address the spill, most of the ash generated during the time critical removal action will be transported and disposed of offsite. Other on-site and off-site disposal options will continue to be evaluated as work progresses. There is also ash generated during current plant operations that is being discharged to the same ash processing system as the dredged ash. Therefore, the ash generated during implementation of the time critical removal action, roughly a year’s worth, is being commingled with the recovered ash and will also be included in this disposal decision. This decision does not include ash that is currently in the failed dredge cell or in the embayment, west of Dike #2. Cleanup and disposal decisions regarding this material will be evaluated as part of the Engineering Evaluation/Cost Analysis performed during the non-time critical removal action. Table 1 illustrates the various sources of ash from KIF and what is included in this evaluation and recommendation for disposal. Table 1. Ash Quantities and Disposal Method Sources of Ash Estimated Ash Quantity Pre-Spill Disposal Method Post-Spill Handling /Disposal Method Dredged from main Ash Pond, pumped to upper dredge cells Bottom ash is retrieved in the bottom ash sluice channel and used to construct the raised dredge cell dikes, which are made of bottom ash, fly ash and clay. Wet sluiced from the plant to the processing area, dried and prepared for off-site disposal. Current Plant Operations Fly Ash ~ 390,000 dry tons/yr ~ 360,000 cy/year Bottom Ash ~ 95,000 dry tons/yr ~ 88,000 cy/year Released Ash – Emory River Released Ash – Swan Pond Embayment, East of Dike 2 Released Ash – Swan Pond Embayment, West of Dike 2 Ash Remaining in the Dredge Cell 2.5 M cy 0.5 M cy N/A N/A Wet sluiced from the plant to the processing area, dried and prepared for off-site disposal. Dredged and pumped to the drying area, dried and prepared for off-site disposal. Dry ash transported to processing area for offsite disposal or used in onsite tests. Wet ash dredge as above. 2.4 M cy N/A Part of a future decision 3.5 M cy Dredge Cell was the Disposal site Part of a future decision The total volume of ash that may be disposed of as part of this decision in the next year is approximately 3 million cy. TVA proposes to transfer about 9,000 cy or approximately 7500 tons of ash off-site each day for disposal. Sometimes the load may be higher as material is brought in from east of Dike #2. This amount of material would require about 85 to 90 rail cars or approximately 500 truck loads leaving the site each day. Material could be moved off-site 24 hours per day, 7 days per week. Expected improvements in dredging productivity could create a dredge production rate of up to 15,000 cy per day. A supplement to this workplan will be issued to address the higher production rate. 3 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 56 of 69 Ash samples, as well as a control sample of soil, were taken on December 29 and 30, 2008 in the Kingston area and analyzed for radioactivity. The results indicate the ash contains small amounts of naturally occurring radioactive material found in the earth and coal. Burning of the coal releases heat energy and reduces the amount of material in which the radioactive material remains. Though this does not increase the amount of radioactive material present, its relative concentration is greater than it is in the earth and coal. This material is not required to be managed as a low level radioactive waste. Moreover, the ash is not considered a Resource Conservation and Recovery Act (RCRA) hazardous waste. The U.S. Environmental Protection Agency (EPA) Toxicity Characteristic Leaching Procedure (TCLP) uses acid digestion (pH of less than 2) to provide a screening-level indication of the potential for leaching of metals. The TCLP test is performed to determine whether the material is hazardous or non-hazardous for the purpose of regulated landfill disposal (40 Code of Federal Regulation [CFR] 261.24). Based on screening, ash samples did not exceed hazardous waste concentrations for any of the metals in the TCLP test. Because one of the landfills being considered for offsite disposal is located in Alabama, TVA evaluated Alabama regulations governing the disposal of the material. Fly ash and bottom ash is specifically excluded as a solid waste and is called out as a special waste under ADEM Admin Code rules 335-13-4-.21(1)(c). To dispose of a special waste at a commercial solid waste disposal facility in Alabama a "Solid Waste Profile Sheet" is submitted with a hazardous waste determination in accordance with ADEM Admin Code 335-14-2. 2. Offsite Disposal Alternatives On February 23, 2009 TVA issued a request for proposals (RFP) to identify off-site disposal options for consideration. Options requested for proposal included appropriately permitted facilities immediately available to receive and dispose/store the Kingston ash material and that are accessible by barge, truck and/or rail. Responses to the RFP included options for disposal of the material in Subtitle D, Class I landfills or Class II industrial landfills and beneficial reuse/structural fill of the ash in mine or quarry reclamation projects. TVA received about 25 proposals that were screened based on cost and technical and operational criteria. As a result of the procurement process, three sites accessible by rail and four additional landfill sites accessible by truck were identified as being immediately available for ash disposal. The following alternatives were considered but determined not to be feasible at this time or they did not meet TVA’s purpose and need, or the AOC disposal requirements. Consequently, they were eliminated from further evaluation. • Use of Roane County Landfill as a monofill for coal ash. The Roane County landfill is a permitted Subtitle D, Class I Municipal Solid Waste facility consisting of two phases. Phase I is filled, closed and under post-closure care. Phase II was used as a soil borrow source in the development of Phase I, but has not been developed. Rather than develop Phase II, the county contracted with the landfill in Dayton, TN to receive its municipal waste. Standards of landfill design and permitting have changed since 1989 when this site was first permitted, and the county will have to resubmit their permit in order to develop Phase II as an ash monofill. The capacity of Phase II would be about 2.5 million cy and the haul distance is less than five miles. Because of the time frame required to resolve various technical issues and to complete permit requirement this site was eliminated from consideration as a site immediately available for the disposal of ash being dredged from the Emory River. 4 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 57 of 69 • Crab Orchard Quarry is a 17-18 acre active quarry located about 22 miles from KIF. Active mining is occurring on about 10 acres of the property with the rock being supplied to the Kingston Scrubber Project. This site could be permitted as a Class II ash monofill or as a Permit-by-Rule Solid Waste Facility for beneficial reuse. Because of the need for an approved site immediately available to receive ash, this site was eliminated from consideration. • Crossville Coal Mine was developed to provide coal to TVA. The coal seam that was feasible to mine played out in 2006. The property comprises about 1,200 acres with about 200 acres disturbed by mining operations involving mountain top removal/strip mining. The site is now being reclaimed under a permit with the Office of Surface Mining. The City of Crossville has adopted the provisions of the state of Tennessee’s Jackson Law that would require approval from the governing body of the municipality or city before applying for a permit. Because local approval is likely to be controversial and the time it would take for permitting and approval would likely be protracted, TVA does not consider this site to be immediately available for ash disposal. • Energy Solutions operates a landfill in Utah. This landfill has sufficient volume to accept all of the TVA ash. However, the landfill is 1700 miles from KIF by rail resulting in very high transportation costs and a greater chance for schedule impacts due to rail or weather issues along with a greater chance for accidents. The distance is nearly 5 times as far as the closer rail sites. This landfill was eliminated from further evaluation because of the long distance for rail travel. • Other alternative locations for Subtitle D, Class II landfills were considered, including use of existing TVA property. However, because of the time requirement to permit those facilities, TVA has eliminated them from consideration at this time. The landfill disposal sites being considered include state and local approved Subtitle Class I landfills. As part of the permitting process, Class I Landfills must be located, designed constructed, operated and maintained such that the fill areas meet minimum buffer zone standards relative to property lines, residences, down gradient wells, and water bodies. Additionally, Class I landfills must have state-approved management plans to address storm water and erosion control; leachate collection, disposal, and monitoring for those parameters listed in the TCLP; wastes screening; and monitoring including groundwater, surface water, and leachates. Other requirements include dust control, litter control, flood protection as needed, fire safety, and a landfill gas management system. The three sites with rail access which are immediately available to receive Kingston ash are described below and in Table 2. Table 2. Disposal Sites with Rail Access Operator Phillips and Jordan, Inc. Veolia Environmental Services Hazleton Creek Properties, LLC Facility Arrowhead Landfill Veolia-Taylor County Landfill Hazleton Mine Reclamation Project Type Class 1, Subtitle D Landfill Class 1, Subtitle D Landfill Beneficial Reuse/Structural fill, 5 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 58 of 69 abandoned coal mine State Alabama Georgia Pennsylvania Rail Distance 327 miles 340 miles 660 miles Total Ash Capacity (cy) 11,000,000 48,000,000 5,000,000 Max. Daily Capacity (cy) Currently 6,500; 13,800 by mid July, 2009 Unlimited 8,000 Arrowhead Landfill is located in Perry County, near Uniontown, AL. It is a Subtitle D, Class I landfill served directly by Norfolk Southern rail line. The distance by rail from KIF to the Arrowhead Landfill is 327 miles. The site has 11 million cy of storage capacity and has currently developed capacity to immediately receive 1.5 million cy of KIF material. The State of Alabama has approved the placement of KIF coal ash in the Arrowhead landfill. The site has more than sufficient capacity to accommodate the total volume of ash to be removed from the Emory River. It has existing rail spurs that can accommodate 200 to 250 rail cars. At the site, ash would be offloaded from the rail cars by hydraulic excavators and loaded into 40 ton trucks for transfer about 1.5 miles to the working landfill face where the TVA ash would be placed. Veolia-Taylor County Landfill is located near Mauk, GA. It is a Subtitle D, Class I landfill served directly by CSX rail line via Norfolk Southern rail line out of Kingston. The distance by rail from KIF to the site is about 340 miles. At the site, ash would be off-loaded from the rail cars by 30 ton excavators and loaded into 40 ton trucks for transport one half mile to the working face of the landfill. The Veolia landfill has 48 million cy of available storage capacity which could accommodate more than the maximum volume of ash from the KIF site. The facility has an existing rail spur which could accommodate 120 rail cars. Hazleton Mine Reclamation Site is located within the City of Hazleton, Luzerne County, PA. The site is served directly by Norfolk Southern rail line. The distance by rail from KIF to the Hazelton site is about 660 miles. The property covers about 330 acres and has been impacted by surface and deep mining and land filling. The site has a permit to receive 5 million cy of coal ash for beneficial reuse and has storage capacity to accommodate the total volume of ash from the KIF dredging operations. Currently, there is an existing rail spur on site which could accommodate 40 rail cars. Additional rail car storage is near the existing rail spur. At the site, ash would be off-loaded from the rail cars by a material handler with an elevated cab and hydraulic clam shell bucket into off- road trucks that would transfer the material to designated abandoned mine pits. TVA has eliminated the Hazleton Site from consideration, as they are unable to commit to installing a liner for placement of KIF material. Several Subtitle D Class I landfills had been identified for ash transport by truck for disposal. At the Class I landfills, material would be mixed with other waste material, except for Chestnut Ridge, or used as layering material. At Chestnut Ridge, the material would be managed separately. Nearby landfills include: • • Meadow Branch Landfill, Athens, Tennessee Chestnut Ridge Landfill, Heiskell, Anderson County, Tennessee 6 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 59 of 69 • • Volunteer Regional Landfill, Oneida, Tennessee Rhea County Landfill in Dayton, Tennessee Table 3 contains the characteristics of the local landfills with truck access. Table 3. Local Disposal Sites with Truck Access Operator Waste Connections Waste Management Waste Connections Santek Environmental Facility Meadow Branch Landfill Chestnut Ridge Landfill Volunteer Regional Landfill Rhea County Landfill Type Class 1, Subtitle D landfill Class 1, Subtitle D landfill Class 1, Subtitle D landfill Class 1, Subtitle D landfill State Tennessee Tennessee Tennessee Tennessee Road Distance 57 miles 50 miles 58 miles 37 miles Total Ash Capacity (cy) 2,000,000 Up to 5,000,000 with volume guarantee 5,000,000 7,125,000 Max. Daily Capacity (cy) 500 8500 tons 500 500 For most of these landfills, TVA would have to use two or more of landfills simultaneously because of limited storage capacity and to reduce the number of vehicles traveling a particular route, thus mitigating potential traffic congestion, noise and diesel emissions. Note that only the Chestnut Ridge Landfill can accept all the dredged ash at the necessary daily rate. If used, the Anderson County location (Chestnut Ridge Landfill) would be accessed by I-40 E to I-640 E/I-75 N to exit 117, State Highway 170, and right on Fleenor Mill Road. This route is approximately 50 miles in length one way and most of this is interstate highway. The Meadow Branch Landfill in Athens, TN would be accessed by I-40 E to I-75 S to exit 49, TN-30 (Decatur Pike), to right on TN 750, Piney Grove Road. This route is approximately 65 miles one way. The Rhea County Landfill in Dayton, TN would be accessed by I-40 W to exit 347, US 27 toward Harriman/Rockwood to Smyrna Road. This route is approximately 36 miles one way. The Volunteer Regional Landfill in Oneida, TN would be accessed by Ruitan Road, TN-29, to US 27 to Bear Creek Road. This route is approximately 62 miles one way. Based on most permit requirements for disposal at Subtitle D, Class I landfills, TVA is required to sample and characterize the ash based on waste acceptance criteria determined for each facility. The required tests include TCLP, total metals and paint filters. Following the tests, TVA would notify respective states of its intent to dispose of ash in their landfill(s) and request approval and a letter of certification that the material is acceptable as fill. The ash to be shipped 7 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 60 of 69 would be tested periodically to verify that the material continues to meet the waste acceptance criteria. To be transported to the sites, the material must also meet the Department of Transportation’s (DOT) standards for a solid waste with moisture content of less than 30 percent and packaging requirements. Additionally, for selected disposal site(s), TVA would submit an EPA identification number as well as the necessary contact information to acquire a Comprehensive Environment Response, Compensation, and Liability Act (CERCLA) off-site disposal clearance. Proper notifications would be made to the appropriate personnel at the EPA and the Tennessee Department of Environment and Conservation (TDEC) before removal of ash from KIF property. 3. Evaluation of Options This analysis evaluates the impacts of transporting ash material by trucks or rail cars. It is based on the proposed removal of approximately 9,000 cy of ash per day at an estimated 20 percent moisture content. The ash quantity estimate represents the amount of material being removed from the river each day operating 24 hours per day, 7 days per week. The concern with using entirely trucks is the increased traffic on local roads from sending over 500 trucks per day from KIF to one or several local landfills as well as an increased risk from accidents. There is known local community concern over the use of trucks. As ash trucks are moving, additional trucks will at times be entering the site carrying gravel and rock for other construction activities. When KIF was bringing nearly 500 trucks of rock onto the site earlier in the project, local roads were impacted and had to be resurfaced. Resurfacing would need to occur multiple times if trucks were used. In addition when comparing rail versus truck, Arizona State University sites that in terms of fuel efficiency, measured in ton miles per gallon, rail is 400 tonmiles per gallon and truck is 130 ton-miles per gallon. Therefore rail is approximately three times more fuel efficient which results in a smaller carbon footprint. Two spurs with approximately 3575 feet of track along with signalization and appurtenances have been designed and are currently being constructed to accommodate off-site disposal using rail. Currently served by Norfolk Southern Railroad, the rail spurs will meet Norfolk Southern standards and specifications and TVA requirements. The spurs will connect directly to the existing Norfolk Southern branch line coming into KIF. Each spur will hold about 24 rail cars. Each day a unit train consisting of 85 to 110 loaded cars would leave KIF. Upon returning to the KIF site, empty cars would be staged and moved into position for loading as needed. These trains would be in addition to coal, ammonia, and limestone trains entering the site each day. Train traffic and impact to traffic on Swan Pond Road would increase greatly over that seen in the last few months. Two primary public impacts to the use of rail transportation are 1) grade crossing delays to highway vehicles and 2) the comparative rail transportation rate to each location. Grade crossing delay can be separated into two categories; the movement between the plant and the mainline junction along the branch line and the movement along the mainline. It can be estimated that an 85 car train (5500 linear feet) moving on a branch line at 15 miles per hour requires 4.3 minutes for the train to pass the grade crossing. An examination of aerial 8 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 61 of 69 photographs of the branch line route between the mainline junction and the plant indicate that there are five independent grade crossings. The cumulative impact to all grade crossings for the inbound empty and outbound loaded trains would be 43 minutes per day. The mainline railroad grade crossing delay to motor vehicles is insignificant since the trains are moving under normal railroad operations at speeds exceeding 35 miles per hour. An economic evaluation of the total costs for the disposal options considered favors rail transportation sites. The rail sites are located in other states while the closer trucking sites are located in Tennessee. The total disposal costs for rail served sites plus fewer trucks on the local roads meant that a rail site is preferred for the majority of the material requiring disposal. 4. Results of Loading Test A series of pre-qualified loading vendors were invited to participate in a rail car loading test which began the week of May 4, 2009. Based on the concern over potential community opposition to trucks and the potential for accidents by trucks, only rail vendors were invited to participate in the test. Based on these evaluations, loading and disposal criteria have been established for the future loading, transportation, and disposal operations at the KIF Ash Recovery Project site. Trucks may be tested in the future. 4.1 Participating Contractors The following contractors were pre-qualified for the ash loading and disposal contract. Each of the participating contractors participated in some aspect of the loading test: Name Phillips & Jordan, Inc. MACTEC Veolia Environmental Services Norfolk Southern Role Loading & Disposal Loading Disposal Railcar Provision & Transport 4.2 Loading Process Each loading contractor performed their loading operations in the KIF Rail Yard along Track 16 just south of the contractor trailers. Each contractor was required to load a total of 15 railcars to near capacity (approximately 90 tons each) with pre-specified but varying lining systems. Both loaders had wet weather to handle. Heavy rains occurred during loading operations or shortly thereafter. Phillips and Jordan. Phillips and Jordan (P&J) elected to load all of its railcars with a hydraulic excavator equipped with a smooth-lipped bucket. Because of the excavator’s cab elevation, an aggregate ramp was constructed for the excavator to work atop. The loading area was fixed so Norfolk Southern provided a tug to move the cars in and out of position during loading. The working area was protected from ash spillage with the use of a plastic liner encompassing the entire loading area. The ash was brought to the loading area by tandem dump trucks and dumped into a large rock box for the excavator to remove material from. Each railcar took approximately 30 to 35 minutes to fill and position for the next load. 9 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 62 of 69 MACTEC. MACTEC elected to load its 15 railcars with the use of two front end loaders equipped with a 5 cubic yard bucket. The front end loaders removed material from a secondary stockpile in the Ash Storage Area and operated along Track 16 to their desired railcar. Ash containment was achieved by placing a plastic liner along the loading side and opposite side of the railcar. Each railcar was loaded in approximately 45 to 50 minutes. The longer loading time for each railcar can be attributed to the distance the loaders had to travel from stockpile to railcar (approximately 1/8 mile average) and the difficulty the larger loader bucket had in loading the narrow railcar opening. 4.3 Lining Systems Prior to loading operations, a breakdown of the desired lining type was given to each contractor. The breakdown is listed below: - (1 car) 6 mil thickness Flap Liner or “Burrito Liner” (2 cars) 10 mil thickness Flap Liner (1 car) 20 mil thickness Flap Liner (2 cars) 10 mil thickness zipper type liner (1 car) 13 mil thickness zipper type liner (8 cars) Soiltac© spray liner system Both the burrito and zipper liners were easily installed, reasonably easy to close, and kept out water well. The zipper liner was the more efficient of the two to close. The zipper liner could be quickly closed with the use of a single laborer. The burrito liners were more difficult to close and often required at least two laborers to do so. While installing and closing, the 6 mil liner tended to damage or tear too easily. The 20 mil liner was very cumbersome during placement into the railcar and also during closing. The lining process was most efficient with the use of the 10 and 13 mil liners. They also were sufficient in resisting tears and abrasions and were light enough to work with. The Soiltac© spray liner was the least effective of all three methods of containment. While Soiltac© maybe a very effective application for normal soil types, it did not develop a cohesive bond with the processed ash. The Soiltac© had a tendency to roll off the surface of the ash during application and settle in the corners of the railcar and in other craters or low spots. 4.4 Transportation Prior to leaving the site, all railcars were inspected for leaks and residual ash. Each railcar was placarded with the proper waste identifier (UN 3077). Phillips and Jordan (P&J) Railcars. Of the 15 P&J railcars destined for departure, there were only 7 that were approved to leave the site. All of the railcars with the Soiltac© application were rejected for transport by Norfolk Southern. Most of the Soiltac© cars were rejected due to visible water leakage, which appeared gray in color on two cars. The others were rejected because Norfolk Southern representatives did not have faith that the remaining Soiltac© cars would resist leaking in transit. 10 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 63 of 69 The Soiltac© mixture was not successful in coagulating with the processed ash and forming the protective seal it was intended to do. Because of this, water from storm events was able to seep into the ash and elevate its moisture content. An attempt was made to salvage these cars for transport by placing a protective 20-mil tarp over each car, but ultimately none of the P&J Soiltac© railcars were allowed to leave the site. All of the railcars utilizing the flap “burrito” liners and zipper liners were approved for departure by Norfolk Southern. Some of the railcars did show signs of water leakage, but none of the water appeared gray in color which indicated it was water purged during loading that was present in the car before loading (in between the liner and railcar surface). No moisture from the ash could have escaped the car since it was completely contained within the liner. MACTEC Railcars. Given lessons learned from the P&J loading procedures, Norfolk Southern provided railcars in better overall condition and an emphasis was made to more effectively seal the railcar joints with sealing compound. TVA/Jacobs directed that eight, instead of the planned seven, rail cars would be prepared and loaded utilizing burrito liners with the additional car liner being a 10-mil burrito liner. TVA/Jacobs directed five of the remaining seven cars to use Soiltac© would be lined with 6-mil polyethylene plastic in the bottom and sides of cars first. The two of the seven cars in the best condition were not lined. All seven cars that received the Soiltac© application were tarped immediately with 20-ml tarps after loading to prevent the intrusion of rainwater. Because of these precautions, all but one of the railcars were permitted to leave the site by Norfolk Southern. The lone railcar that did not leave the site was an unlined, Soiltac© railcar. It showed small traces of leakage of gray water in one of its corners. 4.5 Unloading and Disposal Prior to site disposal unloading operations, representatives from TVA, Jacobs, Norfolk Southern, liner vendors, loader contractors, and, in Georgia the state regulators were present to witness unloading operations and to inspect the landfills. Both landfills were capable of handling the processed ash and cleaning of the railcars for return to site. Each waste handler effectively unloaded the railcars and designated a disposal area separate from its other municipal waste so the ash could be easily located in the future with the use of a global positioning system. Perry County “Arrowhead” Landfill, Uniontown, Ala. (P&Jordan Loader). Unloading operations at the Perry County Landfill were performed with a clamshell specifically designed for railcar contents removal. The clamshell was able to remove about 98% of the ash and the remaining ash was removed by sweeping, shoveling, vacuum truck and pressure washer. Veolia-Taylor County Landfill, Mauk, Georgia (MACTEC Loader). Unloading operations at the Veolia-Taylor County Landfill were done with a hydraulic excavator with a one yard bucket being used for the test only. Residual ash was then removed by sweeping, shoveling, and using a vacuum truck and pressure washer. The unloading procedure at Veolia was effective, but was slower than the Perry County, due to the small bucket size of the unloading equipment bucket. Veolia plans to increase the size of their bucket in this operation, if they are awarded the contract. Pressure washing was discontinued after seven cars and cleaning was completed to the satisfaction of Norfolk Southern representatives with sweeping, shoveling, and vacuuming. The only time pressure washing will be utilized in the cleaning process is when cars will be returned to Norfolk Southern general service. 4.6 Recommendations 11 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 64 of 69 As a result of the loading test, the following recommendations have been developed for full scale application. • • • • • All rail cars will have some form of a liner material between the car and the ash material. Rail cars will be either lined and tarped or they will have a 10-mil burrito bag liner installed. Rail cars must be in good condition and capable of holding a minimum of 100-tons of ash material. Rail car dimensions must be known in order to acquire the correct tarps to prevent intrusion on car safety devices, allow installation efficiently and ensure multiple uses. Use of the burrito bag liners is preferred during rain events and tarps/lining can be used for dry weather loading operations Complete cleaning of used rail cars using pressure washing will only be needed when the cars are being returned to the rail company for general service. The lessons learned from this test were used by the various vendors to improve their bid estimates for TVA. 5 Summary of Preferred Option TVA proposes to use rail cars as the primary transportation means to transport ash being dredged from the Emory River and the ash settling ponds (as well as plant-produced ash in the interim) to a Subtitle D Class I landfill. Management and placement of the Kingston ash in the disposal sites would be in accordance with the facilities’ operating procedures and all applicable federal, state, and local permit requirements and regulations. TVA proposes to (1) design and construct two rail spurs adjacent to the processing area (underway); (2) load fly ash, bottom ash, and minor quantities of other small recovered debris into burrito lined gondola rail cars and/or tarped gondola rail cars with fitted liners; (3) move materials by rail to a selected permitted disposal site; (4) off-load material into trucks, as needed; and (5) transfer the material by truck and place it in a Subtitle D Class I landfill site. The empty rail cars would be cleaned inside and out to remove any residual ash before being returned to KIF for reuse. This alternative eliminates the traffic congestion and reduces air impacts, fugitive dust, cost and maintenance for road repair, and other public safety concerns related to trucking the majority of the material. The rail spurs were designed and are being constructed in accordance with Norfolk Southern Railroad standards and specifications and TVA requirements. The design would require three turnouts, approximately 3575 feet of track, and two switches and a cross-over all within the TVA plant area. A 6’ wide level surface would be constructed adjacent to each spur to accommodate load-out operations. Ballast for the rail spurs would be taken from a nearby rock quarry(ies). The rail spurs are designed and are being built so that runoff drains to the processing area. Signalization and appurtenances, including flashing lights and gates, are being constructed at the Swan Pond Road crossing. Norfolk Southern will construct one lead track turnout. Construction is expected to be complete by July 2009. Each spur will hold about 24 cars. Ash would be moved from the processing area to a load-out station adjacent to each of the rail spurs by heavy equipment. Rail cars would be lined and 12 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 65 of 69 covered using a burrito wrap to control fugitive dust and leakage during transport. Any ash present on the outside surfaces of the rail cars would be removed before the cars leave the site. The cars would be in a sift-proof condition to satisfy DOT packaging requirements (49 CFR 173.240) and would have a proper hazardous material waybill describing the commodity as: “RQ, Environmental Hazardous Substances, Solid, N.O.S., 9, UN3077, PG III (contains arsenic compounds)”. Emergency plans for managing issues occurring during transportation have been developed and fully coordinated with the railroad. As proposed, one unit train with 85 to 110 loaded rail cars would leave the KIF site each day and proceed to the selected disposal site. Both disposal facilities have existing rail spurs where the rail cars would be stationed for off-loading. One or two excavators will be used to off-load the ash into trucks for transport to the placement site. The excavators are expected to remove 95 to 98 percent of the ash. Any ash remaining in the rail cars would be removed by a vacuum truck. A vacuum truck would also be used to remove any water that accumulates due to settling of the material during transport. At the disposal facility, water would be pumped/vacuumed out prior to unloading the rail car and properly managed along with any water remaining after unloading in the leachate collection system. The rail cars would be cleaned inside and out to remove residual ash before returning to KIF. The receiving facility would place the ash in a designated area encased in a soil barrier, separated from other waste materials and identified using a global positioning system coordinates and elevations. All rail car lining systems would be considered waste and would be disposed of along with the ash at the disposal facility. The Arrowhead Landfill in Uniontown, AL was selected as the preferred disposal location. The total cost was notably less than the price for transport and disposal in the landfill in Mauk, GA. The Uniontown landfill is direct served by Norfolk Southern, while Mauk, GA landfill is served by CSX, which adds cost for dual service by both rail companies. Since both facilities were determined to be able to compliantly and safely handle the ash material in the quantity and frequency of delivery required, the final decision was based primarily on cost per ton to transport and dispose of the ash material. The Arrowhead Landfill is a state-of-the-art, Subtitle D Class I facility. The composite liner system consists of 2 feet of 1 x 10-7 cm/sec compacted clay, a 60 mil high density polyethylene geomembrane liner, and a 2 foot thick drainage layer with a leachate collection system and protective cover. The site geology consists of the Selma Group chalks which ranges from 500 to 570 feet thick across the site, with a permeability less than 1 x 10-8 cm/sec. The uppermost groundwater aquifer is located beneath this layer. Workers at the Arrowhead Landfill will receive various levels of safety and health training. All site workers will be trained in accordance with the their site safety and health plan and receive specific instruction regarding the Job Safety Analysis (JSAs). In accordance with the P&J health and safety plan, P&J will ensure workers are qualified to perform the assigned tasks prior to any work activity being performed. P&J will provide specific instruction as to the material that will be handled along with specific hazards and mitigation measures that will be instituted. A select group of workers, those who will be cleaning out the inside of the railcars, will receive HAZWOPER training. P&J will maintain an aggressive and thorough worker exposure monitoring program (air monitoring) and will continue to make adjustments to the levels of protection as information is obtained. All site workers will begin work in Level D protective equipment, except for those workers who will come in direct contact with the material routinely such as those cleaning out the inside of the rail cars. Those workers will wear protective coveralls (polypropylene or Tyvek) and respiratory protection (specifically designed to protect the worker from particulate matter). 13 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 66 of 69 Arrowhead landfill is located 4 to 5 miles from Uniontown, which is the nearest population center. The landfill is in an isolated area, surrounded by large tracts of property, farms, and ranches. The site has a 100 foot buffer that surrounds the entire landfill property. No waste is allowed to be placed in the buffer area. The nearest residence is approximately 250 to300 feet away from the site. The placement of KIF material at the Arrowhead Landfill will significantly economically benefit Perry County. The Arrowhead landfill is considered by local elected officials as an economic partner in the community, and is a potential major source of revenue both for Uniontown and Perry County. Arrowhead pays Perry County $1.05 for each ton of material disposed, of which 0.5 ¢ goes to roads and the remainder is divided among the police department, fire department, schools, and other county needs. Landfill operators project that local hiring of up to 50 positions will occur. In addition, leachate from the landfill is trucked to the City of Marion for disposal. Arrowhead pays $25.00 per 1000 gallons in leachate disposal fees to the city of Marion, which averages approximately $10,000 per month. TVA Executives have met with six local elected officials, including county commissioners, a Mayor, and a City Council member to discuss the potential use of the Arrowhead facility as a disposal site for the KIF material. These elected officials strongly support the disposal of KIF material at the Arrowhead facility. The common theme among the elected officials was the need for revenue and jobs to improve the economic condition of Perry County. No concerns were expressed about receiving KIF material. Appendix: [MAP OF DISPOSAL SITES] [PHOTO OF RAIL CAR LOADING] [PHOTO OF ALA LANDFILL SITE] [PHOTO OF UNLOADING] [PHOTO OF TRAIN SET] 14 Case Document 10 Filed 04/22/16 Page 67 of 69 Legend it Class I all TVA Fossil Plants 1., CoalMinel'Quarry I Cal Iant nl/ Iin Fossil Plant ii mun-m. I1- 51'? mm 9mm. El 15 Miles DRAFT II a *3 OF 5 (avg 'Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 68 of 69 Loading rail cars at Kingston. Active disposal cell at the Arrowhead Landfill in Uniontown, AL 16 Case 2:16-cv-00145-CG-N Document 10 Filed 04/22/16 Page 69 of 69 Loaded train. The gondola cars are much lower than standard bottom dump or rotary dump cars. Unloading cars at Arrowhead Landfill. A water truck was used to simulate unloading during a heavy rain. 17