UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY

 

REGION 4

IN THE MATTER OF Administrative Order and
Agreement on Consent

US. EPA Region 4 and
TVA Kingston Fossil Fuel Plant Tennessee Valley Authority
Release Site 
Roane County, Tennessee Docket No.: 
Proceeding Under Sections 104(a),
106(a), and 107 of the
Tennessee Valley Authority, Comprehensive Environmental
Response, Compensation,
Respondent. 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
migration, and to monitor and assess air and water quality; and

WHEREAS, on January 12, 2009, TDEC issued 3 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

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 specialized expertise in responding to large?
scale 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 bene?cial 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 

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 125 80, 52 Fed.
Reg. 2923 (Jan. 23, 1987), and within EPA further delegated to the Regional
Administrators by EPA Delegation Nos. 14-14-A and and re?delegated to the
Region 4 Superfund Division Director by Regional Delegations 14u14-A and 

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

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 noti?ed 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 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.

PARTIES BOUND

6. This Order applies to and is binding upon EPA and upon TVA and 
directors, of?cers, employees, agents, successor agencies or departments, and assigns.
Any transfer of the assets or real property of the United States in custody and
control shall not alter 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
de?ned 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 de?nitions shall apply:

a. 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 shall mean the Corrective Action Plan, as
required by the TDEC Commissioner?s Order.

0. ?Day? shall mean a calendar day unless expressly stated to be a working day.

d. ?Department? or shall mean the Tennessee Department of
Environment and Conservation.

e. ?Effective Date? shall be the effective date of this Order, as provided in
Section herein.

f. 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 shall mean the National Oil and
Hazardous Substances Pollution Contingency Plan promulgated pursuant to 42 U.S.C. 
9605, codi?ed at 40 C.F.R. Part 300, and any amendments thereto.

j. Permit? shall mean the National Pollutant Discharge Elimination
System Permit 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.

1. ?Paragraph? shall mean a portion of this Order identi?ed by an Arabic numeral
or a lower case letter.

m. ?Parties? shall mean EPA and TVA.

11. ?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. 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).

p. ?Section? shall mean a portion of this Order identi?ed 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. shall mean the Tennessee Valley Authority, and its of?cers, 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.

it. ?Work? shall mean all activities TVA is required to perform under this Order.
V. FINDINGS OF FACT

9. TVA operates the Kingston Fossil Fuel Plant located in Roane County,
Tennessee, near the con?uence of the Emory and Clinch Rivers. The plant was originally
built in the early 19503 to provide power for the Department of Energy?s facility in Oak
Ridge, Tennessee. In approximately 195 8, 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 land?ll cells 1, 2, 3
and 4 now reside.

10. On June 29, 1999, TVA submitted an application to TDEC for a Class 
land?ll permit for the disposal of ash waste from the Operation of the Kingston Fossil
Fuel Plant. TDEC issued TVA the requested Class II land?ll 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 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 over?ows of

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 land?ll failed resulting in a release of approximately 5.4 million cubic yards of
wet ash which ?owed 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 
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 noti?ed 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
Uni?ed Command/Incident Command to coordinate the response as required by the NCP.
Subsequently, on January 10, 2009, EPA, in coordination with the Uni?ed 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 review of all TVA ?y 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 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;

 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 ?y
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 noti?cation 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 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 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 ?nished 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,

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. 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 de?ned 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
de?ned 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 de?ned 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 ful?lling 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 de?ned 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 de?ned 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
enviromnent within the meaning of Section 106(3) 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. 

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

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.

DESIGNATION OF PROJECT COORDINATOR, ON-SCENE
COORDINATOR, AND REMEDIAL PROJECT MANAGER

22. TVA hereby designates Michael Scott as its Project Coordinator who shall be
responsible for administration of all 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 noti?cation to the OSC and RPM, designate
another quali?ed TVA employee to temporarily act in the position of Project
Coordinator. Receipt by 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
E44994, ?Speci?cations 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
Requirements for Quality Management Plans 
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 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 ef?ciently prioritize and perform necessary response actions at the Site,
it is important to have agreed upon short?term, mid-term and longer?term strategic

objectives. The Parties therefore agree that the short?term strategic objectives for the
Site are to:

a. 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 ?ow and minimize further migration of the ash
material; and

(3. 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.

The mid-term strategic objectives for the Site are to:

21. 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.

The longer-term objectives for the Site are to:

a. 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
ensure the proper diSposal of all ash material recovered during these efforts.

Response actions necessary to achieve short-term strategic Site objectives shall generally
be identi?ed as time-critical removal actions. Activities necessary to achieve mid~term
strategic Site objectives shall generally be identi?ed as non?time~critical removal actions.
Activities necessary to achieve longer?term strategic Site objectives shall generally be
identi?ed as remedial actions. The speci?c 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 short?
term Site objectives and non?time?critical response actions in ?irtherance 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?temi strategic Site objectives set forth in Paragraph 26, above, including
extensive work on air, surface water and drinking water monitoring; ash containment;

10

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
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)

(1. Request for Authorization to use Polymers to Enhance Treatment of Dredge
Return Water (approved March 23, 2009)

6. Request for Use of Wick Drains in Ash Processing Area (February 20, 2009)

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
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

(1. Schedule for development of a Dredging/Excavation Plan for East of Dike 2
(including Ash Processing Areas)

Within ?fteen (15) days of Action Memorandum approval, TVA shall submit the
following:

11

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??ve (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 ?le 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. ?nal response
to comments shall be included in the Administrative Record.

30. Non-Time-Critical Removal Action Action Memoranda and
Work Plans - Within ninety (90) days after the effective date of this Order, TVA shall
submit to EPA for approval a dra? Work Plan for performng one or more Engineering
Evaluation/Cost Analyses for non?time?critical removal actions to be taken at
the Site. TVA shall conduct the consistent with 40 CPR. of
the NCP, and in accordance with OSWER Directive 9360.0?32, Guidance on Conducting
Non?Time Critical Removal Actions Under CERCLA August
1993). The 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 process shall also be included in the Work Plan.

The Work Plan shall include a comprehensive description of the work to be
performed in developing the including the media to be investigated g. air,
ground water, surface water, surface and subsurface soils, and sediments), and the
methodologies for human health and ecological risk assessments. The Work Plan
shall also include the Jurisdictional Assessment described in Section XII, Paragraph
34(b), below. The investigations, human health/ecological risk assessments, and
identi?ed non?time?critical removal actions shall address:

12

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

0 Proper disposal of all coal ash material recovered during these efforts.

Following completion of the work in the approved Work Plan, TVA shall submit
the draft Report for review and approval. Upon issuance of a ?nal
as approved by EPA, TVA shall make the and the Administrative Record
supporting the available for public comment in accordance with 40 C.F.R. 
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
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 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
actlons.

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 signi?cant comments submitted during the public
comment period shall be prepared by TVA and submitted to EPA for review and
comment. ?nal response to comments shall be included in the Administrative
Record.

31. Other Response Actions Within thirty (30) days of the receipt of 
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

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:
approve, in whole or in part, the submission; (ii) approve the submission upon
speci?ed conditions; 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 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.

0) Upon receipt of a notice of disapproval pursuant to Paragraph TVA
shall, within fourteen (14) days, or such other time as agreed by EPA and TVA, correct
the de?ciencies and resubmit the plan, report, or other item for approval. Any stipulated
penalties applicable to the submission, as provided in Section shall accrue
during the 14?day period, or otherwise Speci?ed 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 TVA shall proceed, at the direction of EPA, to take any action
required by any non?de?cient portion of the submission. Implementation of any non-
de?cient portion of a submission shall not relieve TVA of any liability for stipulated
penalties under Section (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 de?ciencies, 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 con?rmed pursuant to that
Section. The provisions of Section XXVI (Dispute Resolution) and Section 
(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 
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

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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 (1 1) coal??red 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 
provide any ?ndings, 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 request, TVA shall make available appropriate TVA personnel
and contractors, to work with EPA personnel and contractors, in re?ning 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 XXVIH 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 CPR. 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 CPR. 

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)(l)
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 quali?ed by EPA. The assessment
shall include mapping and physical inspection of affected banks, streambeds and

15

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 ?eld 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 process outlined in
Paragraph 30, above, ?nal cleanup criteria which address removal of ash from
stream/slough/river beds, banks, ?oodplains, 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.

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 Standard Operating Safety Guide (PUB 9285.1-
03, 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 data
validation, and chain of custody procedures. TVA shall ensure that the laboratories used
to perform the analyses participate in a program that complies with the
appropriate EPA guidance. TVA shall follow ?Quality Assurance/Quality Control
Guidance for Removal Activities: Sampling Plan and Data Validation
Procedures? (OSWER Directive Number 9360.4-01, April 1, 1990), as guidance for
and sampling. TVA shall only use laboratories that have a documented Quality
System that complies with E4 1994, ?Specifications and Guidelines for
Quality Systems for Environmental Data Collection and Environmental Technology
Programs? (American National Standard, January 5, 1995), and Requirements for
Quality Management Plans 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 oversight of and data validation, EPA may request,
and TVA shall then require, that any laboratory TVA is using analyze samples submitted

16

by EPA for QA monitoring. TVA shall provide to EPA the 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 
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(1) of the NCP and OSWER
Directive No. 93602?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 basis for all non?timencritical
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 Pollution Reports/Situation Reports) shall conform to Guidance
for Preparing OSWER Directive No. 9360.3?03 (Dec. 2007). At the
conclusion of all time-critical removal actions, and at the conclusion of all non?time~
critical removal actions, TVA shall submit Final Pollution Reports in accordance with the
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 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).

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41. Final OSC Reports. Within sixty (60) days after completion of all time?
critical removal actions, and, again, within sixty (60) days after the completion of all non?
time?critical removal actions required under this Order, TVA shall submit for EPA
review and approval ?nal reports summarizing the actions taken to comply with this
Order. The ?nal reports shall conform, at a minimum, with the requirements set forth in
Section 300.165 of the NCP entitled Reports? and ?Superfund Removal
Procedures: Removal Response Reporting,? OSWER Directive No. 9360.3?03, June 1,
1994. The ?nal 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 ?nal OSC reports shall also include
the following certi?cation 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
signi?cant penalties for submitting false information, including the possibility of
?ne and imprisonment for knowing violations.

XVII. 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 noti?cation of such shipment
of Waste Material to the appropriate state environmental of?cial in the receiving
facility?s state and to the EPA However, this noti?cation 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 noti?cation 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 land?ll on-Site, unless that facility or land?ll is operating in
compliance with RCRA Subtitle permitting requirements for operation and disposal of
industrial wastes which, at a minimum, shall include the use of a liner, leachate

18

collection system, groundwater monitoring, ?nancial assurance, and closure and post-
closure care. If TVA proposes to permanently dispose of any Waste Material to an
existing land?ll 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 satis?ed. Prior to any off?
Site shipment, TVA shall obtain 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.

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(c)(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 justi?cation 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 as appropriate, or, in the event of his unavailability, the Regional
Duty Of?cer 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 
as appropriate, the Regional Duty Of?cer 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 reportng requirement is in addition

19

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 
PROJECT MANAGER

50. EPA and TVA agree that OSC and/or RPM, shall be responsible for
overseeing implementation of this Order, in consultation with TDEC and 
Project Coordinator. TVA and EPA ?irther 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 speci?cally 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 US. EPA Region 4 Records
Center, 61 Street, SW, 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 signi?cant comments
that were received. The public comment period shall not delay the initiation of the Work
required by this Order. However, EPA may seek modi?cations 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

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.

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 traf?c 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 con?dentiality 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(c)(7) of CERCLA, 42 U.S.C. 9604(e)(7), and 40
C.F.R. Documents or information determined to be con?dential by EPA will
be afforded the protection speci?ed in 40 OER. Part 2, Subpart B. If no claim of
con?dentiality accompanies documents or information when they are submitted to EPA,
or if EPA has notified TVA that the documents or information are not con?dential under
the standards of Section lO4(e)(7) of CERCLA or 40 CPR. 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: I) 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, scienti?c,

21

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 ?y ash from the Kingston Fossil
Fuel Plant, in accordance with federal law and 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 cepies 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, Past Response Costs. 
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,
Account =68010727, SWIFT address FRNYUS33, 33 Liberty
Street, New York, New York 10045, Field Tag 4200 of the Fedwire message should read
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 identi?ed in Section XL (Notices and Submissions), with a
copy to:

Paula Painter

Environmental Protection Specialist

US. Environmental Protection Agency, Region 4
61 St, SW

Atlanta, Georgia 30303

and

22

EPA Cincinnati Finance Of?ce
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 ?nance
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,
ABA2021030004, Account =68010727, SWIFT address FRNYUS33, 33 Liberty
Street, New York, New York 10045, Field Tag 4200 of the edwire message should read
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 identi?ed in Section XL (Notices and Submissions), with a
copy to:

Paula Painter

Environmental Protection Specialist

US. Environmental Protection Agency, Region 4
61 St, SW

Atlanta, Georgia 30303

and
EPA Cincinnati Finance Of?ce
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 ?nance

23

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 

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 speci?ed 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) identi?ed 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 ?fteen (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 Coordinator level.

65. If TVA objects to any EPA action or determination, including any EPA
disapproval, modi?cation, or other decision taken pursuant to this Order, TVA shall
notify EPA in writing of its objections, and the basis thereof, Within ?fteen (15) days of
such action. Such notice shall set forth the speci?c points of the dispute, the position
which TVA asserts should be adopted as consistent with the requirements of this Order,
the basis for position, and any matters which it considers necessary for 
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 ?fteen (15) calendar days from
receipt by EPA of the noti?cation 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

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. 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 Of?ce of Environment and Research. The Superfund
Division Director and Senior Vice President shall have an additional ?ve (5) days
to resolve the dispute and issue a written decision signed by both Parties. If the
Superfund Division Director and Senior Vice President cannot reach a mutual
agreement within the ?ve-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.
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
ful?ll the requirement that was the subject of the dispute in accordance with the
agreement reached or in accordance with 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 de?ned 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 best efforts to ful?ll the obligation. For purposes of this
Order, force majeure includes, but is not limited to: Acts of God; ?re; 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 ?nancial 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 ?ve (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

for impiementation of the measures; 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 
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 obligation to perform or complete other tasks required by the Order
which are not directly affected by the force majeure event.

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 identi?ed amounts shown below:

 

 

Penalty Per Violation Per Day Period of Noncompliance
$1,500.00 ist through 14th day
$2,500.00 15th through 30th day
$5,000.00 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 Period of Noncompliance
$500.00 15? through 14th day
$1000.00 15th through 30th day
$2000.00 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

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 ?nal 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 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 ?fteen (15) days after the dispute is resolved by agreement, or by receipt of
?nal 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 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?pro?t 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
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.

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 identi?ed 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

b. liability for costs not included within the de?nition 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 speci?cally
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.

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 .F .R. 


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, of?cers, employees,
agents, successors, representatives, assigns, contractors, or consultants in carrying out
actions pursuant to this Order. TVA shall bear its own litigation costs and attomeys?
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

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, rg 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).

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 indemni?cation,
contribution, or cost recovery.

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 of?cers,
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 of?cers,
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 set?
off 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

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.

MODIFICATIONS

91. The EPA OSC or RPM, may, after noti?cation to and consultation with
TDEC and TVA, require modi?cations to any plan or schedule under this Order in
writing or by oral direction. If OSC or RPM makes an oral modi?cation, it shall
be memorialized in writing within three (3) days thereafter; provided, however, that the
effective date of the modi?cation shall be the date of oral direction. Any other
requirements of this Order may be modi?ed 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 cepy to TDEC. TVA may not
proceed with the requested deviation until receiving oral or written approval from EPA.
written request for modi?cation shall specify: (1) the proposed modi?cation; (2)
the basis for the modi?cation; and (3) any related schedule or deadline that would be
affected if the modi?cation were granted.

93. No informal advice, guidance, suggestions, or comment by EPA regarding
reports, plans, speci?cations, 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 modi?ed.

ADDITIONAL ACTIONS

94. EPA may, after noti?cation 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 or authority to
make oral modi?cations to any plan or schedule pursuant to Section 
(Modifications).

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. 30041501), 300.430(c) and 300.155.

30

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 
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 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 ?ve (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 
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 comments within ?fteen (15) days of receiving comments.

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

response activities at the Site. In order for a Site to be eligible for completion, the
following criteria must be met:

a) Response Objectives speci?ed have been met, and all cleanup actions and
other measures identi?ed 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 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 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 (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, 
and long~term management activities identified in subparagraph
above.

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 ?illy executed copy of this Order and
Agreement in pdf. format as soon as possible after it has been signed by EPA and shall
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 rancendese

US. EPA, Region 4
61 Street, SW

32

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

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



A. Stanley Meiburg?

Acting Regional Administrator
Region 4

US. Environmental Protection
Agency

BWK

 

Tom Eilgore  
Chief Executive Of?
Tennessee Valley Authority