Here is the draft consent order with the City’s comments. Jim, | will call you in about 20 minutes. You should focus on
Sections 1-3.
xxxEND_PAGE:deq04_b577_6019_6376_117
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. {t is provided solely for the consideration and use of the intended recipient(s), their
principals, and thelr legal counsel. it should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
STATE OF MICHIGAN
DEPARTMENT OF ENVIRONMENTAL QUALITY
OFFICE OF WASTE MANAGAEMENT AND RADIOLOGICAL PROTECTION
In the matter of the OWMRP Order No. 115-__ -__.
administrative proceedings against
City of Flint, doing business at
5200 Bray Road, Genesee Township, A
or
Genesee County, Michigan
CONSENT ORDER Vu ile
This proceeding results from unresolved allegations specified in the Letters of Warning,
(LOWs) issued on April 9, 2001, and February 14, 2002, and |
dated April 15, 1997, April 19, 2002, September 8, 2003, October 28, 2003 and January 18, |
2011, by the Department of Environmental Quality (‘DEQ’). (Attachment 1). The DEQ, Office
of Waste Management and Radiological Protection “(OWMRP)’ alleges thai\the city of Flint
(“Respondent”) at 5200 Bray Road, Genesee Township, Genesee County, Michigan (the
“Site”), placed or allowed the placement of solid waste in an Open Dump at the Site,
5 he.disposal.of solid waste-at-the Site in-violation.of Parf115/Solid- Waste.
Management, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as
amended, Michigan Compiled Laws ("MCL") 324.101 ef seq. (“NREPA"), and the administrative
rules promulgated under Part 115. The Respondent and the DEQ agree to resolve the alleged
violations set forth in the above-referenced LOWs and Compliance Communications by entry of
this Consent Order. aA BI, peed a CHEe
Cortaaut OAMZ,
get. waste in place of other disposal in an Open Dump at the Site, or otherwise _ awd 6
eng
STATEMENT OF PURPOSE
In entering into this Consent Order, the mutual objectives of the Respondent and the DEQ are
to address the Open Dump created at the Site, eliminate the surface water discharge from the
Site to the Cornwell Drain, aad allow the Respondent to reconstruct the system used to manage
drinking water treatment plant (WTP) residuals at the Site, aud T cout lo
Marty bisa posrhutl, fronth That the SE ,
xxxEND_PAGE:deq04_b577_6019_6376_118
pone
shh
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. It should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
To accomplish these objectives, the Respondent agrees to determine the horizontal and vertical
extent and character of any solid waste historically disposed of at the Site, including, but not
limited to, the WTP residuals and any solid wastes identified as being disposed of in the above-
referenced LOWs and Compliance Communications. Consistent with the waste
characterization and other investigation data, the Respondent agrees to either remove and
“dispose ofthe solid waste at a disposal area that is licensed by the DEQ, or leave the solid
waste in place and place final cover over it in accordance with the requirements of Part 115 and
this Consent Order. In addition, the Respondent agrees to determine, by conducting a-remedial-
investigation, whether any response activities must be taken to address contamination caused
by the unauthorized disposal of solid waste at the Site. The Respondent also agrees to
manage the historically accumulated lime sludge at the Site it in—
foruse-en-farmiand applied-at
~apprepriate-agronomic rates.or some-other beneficial reuse. _The-Respondent-agrees to
of the-_historically accumulated lime sludge-atthe-Site asa
vontditionetthisOrder~ 2 aeco1Mauce rth MIRE PA,
Finally, if the Respondent proposes to reconstruct the system for the hotmbeotertedl /
dewatering of WTP residuals at the Site, then the Respondent agrees to submit plans and
specifications and secure from the DEQ, Office of Drinking Water and Municipal Assistance
(‘ODWMA"), a public water supply construction permit issued under Section 4 of the Safe
Drinking Water Act, 1976 PA 399, as amended (Act 399), MCL 325.1001 ef seq., and the
administrative rules under Act 399 prior to initiating any construction, alteration, addition, or
improvement to such system. In lieu of disposal, a dol dst residuals management plan for
the historical disposal of lime sludge and other WTP residuals, as well as lime sludge and any
other WTP residuals generated in the future, must also be included as part of the construction
permit application. The Respondent plans to participate in the Karegnondi Water Authority
(KWA) to receive source water from Lake Huron for its drinking water supply and the use of its
WTP to meet treatment requirements under Act 399. It will be approximately four years before
the. KWA infrastructure is built and water is available to the Respondent from KWA. The
Respondent plans to use the Flint River as its {é 1 source water supply for its WTP until
KWA water is fully availabley Public improvement projects under Act 399 are required to be
God prety donne wae mt Mare, eter, an-
a bei, CB Akapond la emergent ie
xxxEND_PAGE:deq04_b577_6019_6376_119
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. !t should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
completed for Respondent to receive water from the KWA. The Respondent must undertake
the KWA public improvement project or undertake other public improvement projects to es °
continue to use the Flint River, such as additional WTP public improvements, source water 1
protection public improvements, and public improvements to obtain a back-up water supply, in apa
order to comply with Act 399.
A ¢
|. DEFINTIONS
1.4 "Act 399” means the Safe Drinking Water Act, 1976 PA 399, as amended, Wa
MCL 325.1001 ef seq. pon
1.2 “FAM” means the financial assurance mechanism acceptable to the DEQ to’pay for
monitoring, operation and maintenance, oversight, and other costs Aalerfiinéby tne,
DELS UE ngbefsarl to-chsuré{the effectiveness and integrity af the remedial action.
The FAM is a component of the Remedial Action Plan.
4.3. “"NREPA’ means the Natural Resources and Environmental Protection Act, 1994
PA 451, as amended, MCL 324.101 et seq.
1.4 “Open Dump” means any area, place, or property where solid waste has been illegally
disposed of or abandoned in place of other disposal. For the purposes of this Consent
Order, the Open Dump includes any solid waste historically disposed of at the Site,
<inelading; aut notlimited to} the WIP vesiduals\and-arylsolid wabtes idéntified ad being
dispeséd of inthe abovélreferefibed LOWS
1.5 “Part 115” means Part 115, Solid Waste Management, of the NREPA, MCL 324.11501
et seq., and the Part 115 Administrative Rules.
1.6 “Part 115 Rules” means the administrative rules promulgated under Part 115.
4.7 “Part 201” means Part 201, Environmental Remediation, of the NREPA, MCL 324.20101
et seq., and the Part 201 Administrative Rules.
<3
xxxEND_PAGE:deq04_b577_6019_6376_120
Privileged and Confidential Settiement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. It should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
1.8
1.10
The Respondent and the DEQ stipulate as follows:
2:4
22
2.3
2.4
a
“Residuals Management Plan” means a DEQ-approved plan torerbdve both historical
and future accumulations of lime sludge and other WTP residuals Egos Site,
“Site” means the property located at 5200 Bray Road, Genesee Township, Genesee
County, Michigan. The Site occupies approximately 76 acres of land adjacent to the
Cornwell Drain on its northern boundary. The Cornwell Drain is a tributary to the Flint
River.
“Solid Waste” as used in this Consent Order means “solid waste” as defined in Part 115
of the NREPA, MCL 324.11506(1), including any solid waste that has been disposed of
at the Site dnd there sfudgetlom wr loperatidas condlicted bi the Respondent.
ll. STIPULATIONS
es
Pursuant to its authority under ra hing DEQ promulgated administrative rules
necessary to implement Patt 1 15. These-rules-are-set forthinthe2005-Annuat—
(AACS), R-299-4161-etseq-{'Part 115 Rules} —
Pursuant to its authority under Act 399, the DEQ promulgated administrative rules
necessary to implement Act 399. These rules set are set forth in the 2009 AACS,
R 325.10101 et seq. (“Act 399 Rules”). tN
Pursuant to the NREPA and Executive Order No. O 1-1, the Director of the DEQ
(‘Director’) is the state official and the Bea e state agency charged with the
administration and enforcement of Part 115 and Act 399. This Consent Order Is
authorized under MCL 324.11519(2) and MCL 325.1022.
The Respondent is a “person” as defined by MCL 324.301(g) and MCL 325.1002(m).
-4-
xxxEND_PAGE:deq04_b577_6019_6376_121
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. it is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. It should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
2.5 The Respondent owns and operates the Site. The Respondent is a municipality in the
state of Michigan.
2.6 The Site consists of a WTP residuals area and contains various water level control
structures and discharge points to the Cornwell Drain, and an area where solid waste
has been disposed of in the Open Dump. Attachment 2 is an aerial schematic of the
Site and shows the approximate boundaries of the WTP residuals area and the Open
od pha 628, AD
2.7 The Respondent stipulates that the issuance and entry of this Consent Order is proper
and acceptable. This Consent Order shall be considered a final order of the DEQ and
shall become effective on the date it is signed by the Chief of the OWMRP -C@ffice-
Ghief),-designee-of the Director-pursuantte- MGCL -324.301(b)-ef the NREPA—.
Dump.
Ca
wi bl
2.8 The Respondent agrees to fully and strictly comply with all provisions of Part 115 and
Act 399, the Part 115 Rules, the Act 399 Rules, and all other applicable state and
He Caw Orken .
federal statutes.
2.9 The Respondent and the DEQ agree that the signing of this Consent Order is for .
seiieienlD lipase only as does not constitute an admission by ag Respondent f Blo < by
the allegations contained in the above-referenced LOWs and Compliance of
Communications or that the law has been violated.
2.10 The Respondent, all Respondent's successors and assigns, and the DEQ agree to and
shall be bound by the requirements of this Consent Order.
abe
xxxEND_PAGE:deq04_b577_6019_6376_122
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations, It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel, {t should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
Ill COMPLIANCE PROGRAM .
In order to resolve the violations alleged in the above-referenced LOWs and Compliance |
Communications, the Respondent shall achieve and maintain compliance with the requirements
3.1 On and after the effective date of this Consent Order, the Respondent shall ensurg that |
the Site is secure and that, pursuant to R 299.4128(1), illegal dumping does not occur at
the Site.
specified below in accordance with the following schedule:
3.2 wait after the effective date of this Consent Order, the Respondent
shall plug or cap the outlet tower identified in Attachment 2 and take all necessary
actions to terminate any surface water discharge to the Cornwell Drain. Respondent will
not place the outlet tower back into service unless proper permits are acquired.
' puny (7e) .
3.3 writer after the effective date of this Consent Order, the Respondent
shall submit to the ODWMA for review and approval, an administratively complete
Act 399 construction permit application for the reconstruction of the portméchénical_7
dewatering system for WTP residuals at the Site, including provisions and a schedule
for the construction of a physical barrier that will separate the area proposed for the
reconstructed dewatering system from the area where the other solid waste is located
on the Site. The permit application will clearly identify any areas that will not be used as
part of the reconstructed ponémechaniGél dewatering system and identify any slurry inlet
points located outside the system footprint so such inlet points can be permanently
capped by the Respondent. The permit application will also include a basis of design for
the management of WTP residuals within the system.
2)
3.4 ee ae after the effective date of this Consent Order, the Respondent
shall submit to the OWMRP for review and approval, any portion of the dewatering
system residuals management plan submitted to the ODWMA that is required to comply
with Part 115.
-6-
xxxEND_PAGE:deq04_b577_6019_6376_123
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. {It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. It should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
3.5
3.6
Within two hundred and forty (240) days of the effective date of this Consent Order, the
Respondent shall submit to the DEQ for review and approval, a report that summarizes
the current conditions at the Site (“Site Conditions Summary Report") " or “SCSR"), The
SCSR shall include, at a minimum, the following:
(a) \dentification of the horizontal and vertical extent of solid waste at the Site;
(b) Estimates, in cubic yards, of the volumes of un-impacted concrete, lime, and
other solid waste at the Site;
(c) Characterization of the solid wastes at the Site including data to support the
characterizations; - 4 ,
~ 4
(d) Identification, characterization, and delineation of Syy-environmentalimpacté at
(e) Identification of the general geologic and hydrogeologic conditions at the Site;
and a tho
(f) Copies of any DEQ-approved inertnessdesignations and/or DEQ-approved
“other beneficial reuse” authorizations obtained by Respondent.
If the Site Conditions Summary Report fails to delineate the horizontal and vertical
extent of solid waste, or fails to delineate any contamination identified at the Site, or fails
to support conclusions identified in the report, bis asa roved for otter specified
JBiICentieg, the Respondent shall develop and implement a remedial investigation. A
complete and technically adequate work plan for a remedial investigation (“Remedial
Investigation Work Plan”) shall be submitted to the DEQ within sixty (60) days of the
DEQ’s notification that the Remedial Investigation Work Plan is necessary. Upon
approval by the DEQ, the Respondent shall implement the Remedial Investigation Work
Plan in accordance with the schedule contained therein. The Respondent shall submit,
for review and approval by DEQ, final results and conclusions of the remedial
cy a
xxxEND_PAGE:deq04_b577_6019_6376_124
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. It should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
investigation in the form of a written report ("Remedial Investigation Report”) within thirty
(30) days of completion of the remedial investigation.
3.7 4 If the DEQ-approved SCSR or Remedial Investigation Report identifies 97 ch hae
cp ese gucrmmatinoste the Site and the only issue to address is theSolid waste
ab Lae identified at the Site, the Respondent may elect to remove and properly dispose of the ele
; ” solid waste identified at the Site by completing the following requirements:
(a) Within thirty (30) days of receipt of written approval of the SCSR or Remedial
Investigation Report by the DEQ, the Respondent shall submit to the DEQ for review
and approval, a Solid Waste Removal Plan “(SWRP)” for the Site. This plan will provide
details regarding the proposed removal and legal disposal of the solid waste identified at
the Site. In addition, the plan shall include a proposed schedule for the waste removal
and disposal, ahd’b proposéd wast@ removalleontimmation sampling plan.
(b) Within sixty (60) days of completion of the SWRP, the Respondent shall submit
to the DEQ for review and approval, a Solid Waste Removal Report for the Site. This
ye report will contain summaries of waste volumes, final disposition of wastes, copies of
ao
° landfill receipts, copies of paperwork required by “other beneficial reuse” authorizations J
ans-ifaste remolal confirmation sampling results.
3.8 If the Respondent idehtiffesfenvironmehtal thhpécts ahd/or elects to leave the solid waste any
wt . ) —» in place at the Site, then the Respondent shall complete the requirements of Paragraphs
es potl 3.9 through 3.12, as follows:
3.9 | The Respondent shall submit to the DEQ for review and approval, an Assessment of
Corrective Measures (“ACM'’) that is in accordance with R 299.4443 of the Part 115
Rules within ninety (90) days of written approval by the DEQ of the RI Report. The ACM
shall include an analysis of each potential remedy considered, identify the final remedial
action proposed by the Respondent, and provide an explanation of how that proposed
remedial action will meet applicable cleanup criteria of Part 201 and be in compliance
with Part 115 and the Part 115 Rules.
gis
xxxEND_PAGE:deq04_b577_6019_6376_125
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. It Is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. it should not be disclosed to any other person without the express consent of the
Department of Environmental Quality. rosbad
ASG Resp SAG,
3.10 The Respondent shall submit to the DEQ for review and approval, a complete and <*~* AM
technically adequate Remedial Action Plan ("RAP”) for the Open Dunjp that is in ,
compliance with the requirements of R 299.4444 of the Part 115 Rulgs within one
hundred twenty (120) days of receipt of written approval by the DEQ pf the ACM. The
RAP shall include a detailed schedule for implementation and a FAM. The RAP shall be |
consistent with the results of the remedial investigation and any other monitoring data
collected, reports submitted, and/or investigations conducted prior to submittal of the
RAP. The RAP, when implemented, shall comply with the applicable cleanup criteria of
Part 201 and, upon approval of the plan by the DEQ, the Respondent shall implement
the approved RAP in accordance with the schedule contained therein.
aud. wT. Oe
3.11 If, in accordance with the approved ACM, the Respondent elects to cap and close in-
place the solid waste identified at the Site, the Respondent shall, as part of the RAP,
submit to the DEQ for review and approval, a Capping and Closure Plan and schedule
for implementation (“CCP”) and a Post Closure Plan and schedule for implementation Ce he,
("PCP”) for the Site that are in compliance with the requirements of R roses, Fd ,
R 299.4447, respectively, of the Part 115 Rules and Part 115<Upon DEQ approval of
the CCP and the PCP, the Respondent shall implement the plans in accordance with the
schedules contained therein. !f the Respondent lacks the expertise and/or manpower to
conduct the work in accordance with the DEQ-approved CCP, the PCP, and the
Part 115 Rules, the Respondent shall contract the work to be performed by a,contractor |
Sxp@iiepced inflandill-cdpstriktion, ae
ial outed wo) procrbaly og ehiffeid)
3.12 If, in accordance with an’approved ACM, the Respondent elects to cap and close in-
place the solid waste‘identified at the Site, the Respondent shall, as part of the RAP,
submit to the DEQ for review and approval, a Hydrogeologic Monitoring Plan and
monitoring schedule (“HMP") for the Site that complies with R 299.4904, R 299.4905,
R 299.4906, R 299.4907, and R 299.4908 of the Part 115 Rules. Upon approval by the
DEQ, the Respondent shall implement the HMP in accordanc¢ with the schedule
contained therein. In-addition- provide appropriate
podied
-9-
xxxEND_PAGE:deq04_b577_6019_6376_126
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. {t is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. tt should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
44
4.2
4.3
44
4.5
lV. DEQ APPROVAL OF SUBMITTALS
For any work plan, proposal, or other document, excluding applications for permits or
licenses, that are required by this Consent Order to be submitted to the DEQ by the
Respondent, the following process and terms of approval shall apply.
To be approved by the DEQ, any work plan, proposal, or other document required to be
submitted by this Consent Order shall include all of the information required by the
applicable statute and/or rule and ail of the information required by the applicable
paragraph(s) of this Consent Order.
Upon DEQ approval, or approval with modifications, of a work plan, proposal, or other
document, such work plan, proposal, or other document shall be incorporated by
reference into this Consent Order and shall be enforceable in accordance with the
provisions of this Consent Order.
In the event the DEQ disapproves a work plan, proposal, or other document, it shall
notify the Respondent, in nee cific reasons for such disapproval. The
Respondent shall submit, within thirty(80) days of receipt of such disapproval, a revised
work plan, proposal, or other document that adequately addresses the reasons for the
DEQ's disapproval. DRE PH,
In the event the DEQ approves with specific modifications, a work plan, proposal, or
other document, it shall notify the Respondent, in writing, of the specific modifications
tequired to be made to such work plan, proposal, or other document prior to its
implementation and the specific reasons for such modifications, DEQ may require
the Respondent to submit, prior to implementation and ete of receipt
of such approval with specific modifications, a revised work plan, proposal, or other
document that adequately addresses such modifications Ke
pepursd De NRE PAR
-10-
xxxEND_PAGE:deq04_b577_6019_6376_127
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settiement negotiations.
principals, and their legal counsel. It should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
4.6
4.7
4.8
4.9
5.1
5.2
A finding of approval or approval with modification of a submission shall not be
construed to mean that the DEQ concurs with any of the conclusions, methods, or
statements in the submission or warrants that the submission comports with law.
Failure by the Respondent to submit an approvable work plan, proposal, or other
document within the applicable time period specified above shall subject the
Respondent to the enforcement provisions of this Consent Order including, but not
limited to, the stipulated penalty provisions commencing on the date the revised work
plan, proposal, or other document was due and accumulating until an approvable work
plan, proposal, or other document is submitted.
Any delays caused by the Respondent’s failure to submit an approvable work plan,
proposal, or other document when due shall in no way affect or alter the Respondent's
responsibility to comply with any other deadline(s) specified in this Consent Order.
No informal advice, guidance, suggestions, or comments by staff of the DEQ regarding
reports, work plans, proposals, plans, specifications, schedules, or any other writing
submitted by the Respondent will be construed as relieving the Respondent of its
obligation to obtain written approval of the DEQ if and when required by this Consent
Order.
V. MODIFICATIONS AND EXTENSIONS
At the request of the Respondent, a work plan, proposal, or other document approved or
approved with specific modifications by the DEQ, with the exclusion of the specified
deadlines set forth in Section Ill, Compliance Program, of this Consent Order, may be
modified by the OWMRP Lansing District Supervisor. Any modifications or extensions
In regard to the Act 399 construction permit must be approved by the ODWMA Lansing
District Supervisor
The Respondent and the DEQ agree that the Office Chief may, but in no circumstances
is obligated to, grant the Respondent an extension of the specified deadlines set forth in
-11-
It is provided solely for the consideration and use of the intended recipient(s), their
xxxEND_PAGE:deq04_b577_6019_6376_128
Privileged and Confidential Settlement Communication
This document Is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. It should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
5.3
5.4
6.1
this Consent Order. Any extension shall be preceded by a timely written request,
received by the DEQ no later than ten (10) business days prior to the pertinent deadline,
which shall include:
(a) An identification of the specific deadline(s) of this Consent Order that will not be
met.
(b) A detailed description of what will prevent the Respondent from meeting the
deadline(s),
(c) Adescription of the measures the Respondent has taken and/or intends to take to
meet the required deadline(s).
(d) The length of the extension requested and the specific date(s) on which the
obligation(s) will be met.
The Office Chief shall respond promptly to such requests and shall not unreasonably
withhold approval for such requests.
Any extension of the specified deadlines or other modifications and amendments of this
Consent Order shall require a formal written amendment of this Consent Order, shall be
signed by the Respondent and the DEQ (“Parties”), shall have as their effective date the
date on which they are signed by the Office Chief, and shall be incorporated into and
become an enforceable part of this Consent Order.
VI. REPORTING
With the exception of the Act 399 construction permit application required by
Paragraph 3.3 of this Consent Order, the Respondent shall submit all items required in
Section Ill, Compliance Program, to the Lansing District Supervisor, OWMRP, DEQ,
P.O. Box 30242, Lansing, Michigan 48909-7742, unless specifically directed otherwise
within this Consent Order. The Respondent shall submit the Act 399 construction permit
-42-
xxxEND_PAGE:deq04_b577_6019_6376_129
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their tegal counsel. It should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
6.2
7.4
application required by Paragraph 3.3 of this Consent Order and any documents that
pertain to, or are required by, the Act 339 application or permit, to the Lansing District
Supervisor, ODWMA, DEQ, P.O. Box 30242, Lansing, Michigan 48909-7742. The cover
letter with each submittal shall identify the specific paragraph and requirement of this
Consent Order that the submittal is intended to satisfy. If the address of a District
Supervisor changes, the Respondent will be notified and shall make all subsequent
submittals to any new address of which they are notified. ae
Beg Pot
The Respondent shall verbally report any violation(s) of the terms and conditions of this
Consent Order to the OWMRP District Supervisor wy later than the close of the next
business day following detection of such violation(s) and shall follow such notification
with a written report within five (5) business days following detection of such violation(s).
The written report shall include a detailed description of the violation(s), the precise
cause or causes of the violation(s), a detailed description of any action(s) taken or
proposed to correct the violation(s), and a schedule for the implementation of any
proposed corrective action(s), The Respondent shall report any anticipated violation(s)
of this Consent Order to the OWMRP District Supervisor in advance of the relevant
deadlines, whenever possible.
Vil. RETENTION OF RECORDS
Upon request by an authorized representative of the DEQ, the Respondent shall make
available to the DEQ all records, plans, logs, and other documents required to be
maintained under this Consent Order, or pursuant to Part 115, the Part 115 Rules,
Act 399, or the Act 399 Rules. Within 30 days of the effective date of this Consent
Order, Respondent shall designate, in writing in accordance with Section VI of this
Consent Order, a location for retention of all such documents that is accessible to DEQ
staff within normal business hours. All such documents shall be retained at the
designated location for at least a period of three (3) years from the date of generation of
the record unless a longer period of record retention is required by Part 115, the
Part 115 Rules, Act 399, or the Act 399 Rules. If the designated location changes, the
Ag
xxxEND_PAGE:deq04_b577_6019_6376_130
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. It should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
Respondent shall provide written notice of such to the DEQ in writing in accordance with
Section VI of this Consent Order.
Vill. RIGHT OF ENTRY
8.2 | The Respondent shall allow any authorized representative or contractor of the DEQ,
upon presentation of proper credentials, to enter upon the premises of the Site at all
reasonable times for the purpose of monitoring compliance with the provisions of this
Consent Order. This paragraph in no way limits the authority of the DEQ to conduct
tests and inspections pursuant to the NREPA and its rules or any other applicable
statutory provision.
IX. FINES, COSTS, AND PENALTIES
, the naps
nin settlement ofthe > Q's
in the wes LOWs
9.2 For each failure to comply with the provisions of Section Ill, Compliance Program, of this
Consent Oger, tha, Respondent shall pay to the State of Michigan stipulated penalties in
an amount of $260 per violation per day for one (1) through seven (7) days of Violation 4)
$500.per violation per day for eight (8) through fourteen (14) days of violation; and $750
per violation per day for each day of violation thereafter. Stipulated penalties shall be
paid within thirty (30) days after receiving a written demand made by the DEQ.
9.3. To ensure timely payment of ant pp bolsenanes, and costs due under this Consent
Order, the Respondent shall pay an interest penalty to the State of Michigan each time
the Respondent fails to make a complete or timely payment. This interest penalty shall
be based on the rate set forth at Section 6013(6) of the Revised Judicature Act,
1961 PA 236, as amended, MCL 600.6013(6), using the full increment of amount due as
principal, and calculated from the due date for the payment until the delinquent payment
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xxxEND_PAGE:deq04_b577_6019_6376_131
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. it should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
is finally made in full.
9.4 The Respondent shall make all payments due under this Consent Order by certified or |
cashier's check made payable to the “State of Michigan” and mailed to the DEQ,
Revenue Control Unit, P.O. Box 30657, Lansing, Michigan 48909-8157, or hand
delivered to the DEQ, Revenue Control Unit, 1" Floor, Van Wagoner Building, 425 West
Ottawa Street, Lansing, Michigan 48933. To ensure proper credit, all payments made
pursuant to this Consent Order must include Payment Identification Number
OWMRP. on the front of the check and/or in the cover letter with the
payment.
9.5 a ee
surveillance this-section: The Respondent titipet
agrees not to contest the legality of any stipulated penalties or interest penalties
assessed pursuant to this section but reserves the right to dispute the factual basis upon
which a demand by the DEQ for stipulated penalties or interest penalties is made.
9.6 Liability for or payment of stipulated penalties pursuant to this Consent Order shall not
preclude the State of Michigan from seeking injunctive relief or other relief for the
Respondent's failure to comply with the requirements of this Consent Order and/or any
permit(s) or license(s) required to comply with this Consent Order.
X. DISPUTE RESOLUTION
10.1 Unless otherwise provided in this Consent Order, the dispute resolution procedures of
this section shall be the exclusive mechanism to resolve disputes arising under, or with
respect to, this Consent Order and shall apply to all provisions of this Consent Order.
However, the procedures set forth in this section shall not apply to actions by the State of
Michigan to enforce obligations of the Respondent that have not been disputed in
accordance with this section. Engagement of a dispute resolution between the Parties
shall not be cause for the Respondent to delay the performance of any compliance
requirements or response activity. Any dispute that arises under this Consent Order shall
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xxxEND_PAGE:deq04_b577_6019_6376_132
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settiement negotiations. It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. {It should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
10.3
Privileged and Confidential Settlement Communication
in the first instance be the subject of informal negotiations between the Parties. The
period of negotiations shall not exceed twenty (20) days from the date of written notice by
any Party that a dispute has arisen, unless the time period for negotiations is modified by
written agreement between the Parties. The dispute shall be considered to have arisen
when one Party sends the other Party a written notice of dispute. If agreement cannot be :
reached on any issue within this twenty- (20-) day period, the DEQ shall provide a written
statement of its decision to the Respondent and, in the absence of initiation of formal
dispute resolution by the Respondent under Paragraph 10.2, the DEQ position, as
outlined in its written statement of decision, shall be binding on the Parties.
[If the Respondent and DEQ cannot informally resolve a dispute under Paragraph 10.1,
the Respondent may initiate formal dispute resolution by requesting a review of the
disputed issues by the Office Chief. This written request must be filed with the Office
Chief within fifteen (15) days of the Respondent's receipt of the DEQ’s statement of
decision that is issued at the conclusion of the informal dispute resolution procedure set
forth in Paragraph 10,1. The Respondent's request shall state the issues in dispute; the
relevant facts upon which the dispute is based; any factual data, analysis, or opinion
supporting its position; and all supporting documentation upon which the Respondent
bases its position. Within fourteen (14) days of the Office Chief's receipt of the
Respondent's request for a review of disputed issues, the Office Chief will provide a
written statement of decision to the Respondent, which will include a statement of his/her
understanding of the issues in dispute; the relevant facts upon which the dispute is
based; any factual data, analysis, or opinion supporting her/his position; and all
supporting documentation relied upon by the Office Chief's review of the disputed issues.
The Office Chief's review of the disputed issues may be extended by written agreement
of the Parties,
The written statement of the Office Chief issued under Paragraph 10.2 shall be binding
on the Parties unless, within fifteen (15) days after receipt of the DEQ’s written statement
of decision, the Respondent files a petition for judicial review in a court of competent
jurisdiction that shall set forth a description of the matter in dispute, the efforts made by
the Parties to resolve it, the relief requested, and the schedule, if any, within which the
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xxxEND_PAGE:deq04_b577_6019_6376_133
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their egal counsel. {1 should not be disclosed to any other person without the express consent of the
Department of Environmentat Quality.
dispute must be resolved to ensure orderly implementation of this Consent Order.
Nothing Mode nok ects the lipnitations of the timing {of sone vi wat
DEQ decision tegardin the, election, extent\or adequacy of any kesponse &ctivitys :
10.4 An administrative record of the dispute shall be maintained by the DEQ. The
administrative record shall include all of the information provided by the Respondent
pursuant to Paragraph 10,1, as well as any other documents relied upon by the DEQ in
making its final decision pursuant to Paragraph 10.2. Where appropriate, the DEQ shall
allow submission of supplemental statements of position by the Parties to the dispute.
judicial, gyubers0.2 ful Oy fospondtnd,
10.5 In froceeding on any dispute“the Respondent shall have the burden of demonstrating éby
pheladhrinitrative teoded that the position of the DEQ is arbitrary and capricious or
otherwise not in accordance with law. Inroceedings on any dispute initiated by the
Respondent, the Respondent shall bear the burden of persuasion on factual issues.
10.6 Notwithstanding the invocation of dispute resolution proceedings, stipulated penalties
shall accrue from the first day of any failure or refusal to comply with any term or
condition of this Consent Order, but payment shall be stayed pending resolution of the
dispute. Stipulated penalties shall be paid within thirty (30) days after the resolution of
the dispute. The Respondent shall pay that portion of a demand for payment of
stipulated penalties that is not subject to dispute resolution procedures in accordance
with and in the manner provided in Section IX, Fines, Costs, and Penalties, of this
Consent Order.
Xi. FORCE MAJEURE
11.1. The Respondent shall perform the requirements of this Consent Order within the time
limits established herein unless performance is prevented or delayed by events that
constitute a "Force Majeure.” Any delay in the performance attributable to a "Force
Majeure" shall not be deemed a violation of the Respondent’s obligations under this
Consent Order in accordance with this section.
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xxxEND_PAGE:deq04_b577_6019_6376_134
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. {t is provided solely for the consideration and use of the intended recipients), their
principals, and their legal counsel. it should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
11.2 For the purpose of this Consent Order, “Force Majeure” means an occurrence or
nonoccurrence arising from causes not foreseeable, beyond the control of, and without
the fault of the Respondent, such as: an Act of God, untimely review of permit
applications or submissions by the DEQ or other applicable authority, and acts or
omissions of third parties that could not have been avoided or overcome by the
Respondent's diligence and that delay the performance of an obligation under this
Consent Order. “Force Majeure” does not include, among other things, unanticipated or
increased costs, or failure to obtain a permit or leone
as a result of the Respondent's actions or omissions. “Porte WagZeeud a
CO A Ae (0 th ce aacagen ; ;
11.3. The Respondent shall notify the DEQ, by teléphone, within forty-eight (48) hours of
discovering any event that causes a delay in its compliance with any provision of this
Consent Order. Verbal notice shall be followed by written notice within ten (10) calendar
days and shall describe, in detail, the anticipated length of delay, the precise cause or
causes of delay, the measures taken by the Respondent to prevent or minimize the
delay, and the timetable by which those measures shall be implemented. The
Respondent shail adopt all reasonable measures to avoid or minimize any such delay.
11.4 Failure of the Respondent to comply with the notice requirements of Paragraph 11.3,
above, shall render this section void and of no force and effect as to the particular
incident involved. The DEQ may, at its sole discretion and in appropriate circumstances,
waive the notice requirements of Paragraph 11.3.
a,
11.5 Ifthe Parties to this Consent Order agree that the delay or anticipated delay was beyond
the-ee! ‘ol-ef the-Respondent this may be so stipulated and the parties to this Consent
Order may agree upon an appropriate modification of this Consent Order. If the Parties
to this Consent Order are unable to reach such agreement, the dispute shall be resolved
in accordance with Section X, Dispute Resolution,. The burden of proving that any delay
aw Foce esther .
was spondent, and that all the requirements of
this section have been met by the Respondent, is on the Respondent.
11.6 An extension of any given compliance date based upon a particular incident does not
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xxxEND_PAGE:deq04_b577_6019_6376_135
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. {t is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. It should not be disclosed to any other person without the express consent of the
Department of Environmental! Quality.
12.1
12.4
necessarily mean that the Respondent qualifies for an extension of a subsequent
compliance date without providing proof regarding each incremental step or other
requirement for which an extension is sought.
Xll. GENERAL PROVISIONS
With respect to any violations not specifically addressed and resolved by this Consent
Order, the DEQ reserves the right to pursue any other remedies to which it is entitled for
any failure on the part of the Respondent to comply with the requirements of any state or
federal law, including the NREPA and its rules.
Execution of the schedule contained in this Consent Order shall not be construed to
waive, estop, or otherwise diminish the DEQ’s right to seek or impose civil liability upon,
and seek appropriate relief from, the Respondent for degradation of waters of the State
and the designated uses thereof arising out of the failure of the Respondent to aekieve-a
re epley ced this Consent Order.
This Consent Order does not constitute a warranty or representation of any kind by the
DEQ that the response activities performed in accordance with this Consent Order or
DEQ-approved work plans will result in the achievement of the remedial criteria
established by law, or that the response activities will ensure protection of public health,
safety, or the environment.
This Consent Order in no way affects the Respondent's responsibility to comply with any
other applicable state, federal, or local laws or regulations
applicable-to-th He pursuantto te
NREPA anditstules, oe ALLE a - Canton Order,
Nothing in this Consent Order is or shall be considered to affect any liability the
Respondent may have for natural resources damages caused by the Respondent's
ownership and/or operation of the Site. The State of Michigan does not waive any rights
to bring an appropriate action to recover such damages to the natural resources.
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xxxEND_PAGE:deq04_b577_6019_6376_136
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. It should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
12.6
12.8
13.1
The Parties agree that the terms and conditions of this Consent Order will be enforceable
Weirouit court. The Parties further agree that the appropriate venue for the enforcement
of this Consent Order shall be the Circuit Court for Genesee County or the Circuit Court
for Ingham County, State of Michigan, which courts shall also be appropriate for dispute
resolution.
If any provision or authority of this Consent Order or the application of this Consent Order
to any Party or circumstances is held by any judicial or administrative authority to be
invalid, the application of such provisions to other Parties or circumstances and the
remainder of the Consent Order shall remain in force and shall not be affected thereby.
The provisions of this Consent Order shall be binding on the Respondent, the DEQ, and
their successors and assigns. The Respondent shall give notice of this Consent Order to
any prospective successor in interest prior to transfer of ownership of the Site property or
any portion thereof and shall notify the DEQ of such proposed sale or transfer.
XIll. TERMINATION
This Consent Order shall remain in full force and effect until expressly terminated by a
written Notice of Termination issued by the Office Chief. The Respondent may request
that the Office Chief issue a written Notice of Termination at any time after achieving full
compliance with this Consent Order. Such a request shall consist of a written certification
that the Respondent has fully complied with all of the requirements of this Consent Order
and has made payment of any Ag, penalties, and costs required under this Consent
Order. Specifically, this certification shall include:
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xxxEND_PAGE:deq04_b577_6019_6376_137
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel. It should not be disclosed to any other person without the express consent of the '
Department of Environmental Quality. |
(a) The date of compliance with each provision of the compliance program in
Section Il of this Consent Order and the date any bres, penalties,or costs were paid;
(b) a statement that all required information has been reported to the District |
Supervisor; '
(c) confirmation that all records required to be maintained pursuant to this Consent
Order are being maintained by the City at the location designated pursuant to Cra mel,
Paragraph 7.1 pf this Consent Order; and fg oo Biipareining Se BABE
aban vote EO
(d) additional relevant information’tequested by the Office Chief.
13.2 The Office Chief shall issue a written Notice of Termination unless ie/DHQ dbterdings,
Liat the Respondent has not submitted the certification required under this section, has
failed to er ae specifically requested by the Office Chief, or has failed to
comply with, or complete, all of the requirements of this Consent Order.
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xxxEND_PAGE:deq04_b577_6019_6376_138
Privileged and Confidential Settlement Communication
This document is for the purpose of settlement and is subject to the privilege that applies to communications made in
settlement negotiations. It is provided solely for the consideration and use of the intended recipient(s), their
principals, and their legal counsel, It should not be disclosed to any other person without the express consent of the
Department of Environmental Quality.
XIV. SIGNATORIES
The undersigned CERTIFY they are fully authorized by the party they represent to enter into
this Consent Order to comply by consent and to EXECUTE and LEGALLY BIND that party to it.
CITY OF FLINT DEPARTMENT OF ENVIRONMENTAL i
QUALITY
t
: Dan Wyant |
By: Director
Title:
By:
, Bryce Feighner, Chief
Date: Office of Waste Management and
Radiological Protection
Date:
APPROVED AS TO FORM:
Bill Schuette
Attorney General
[NAME] (P )
Assistant Attorney General
Environment, Natural Resources, and
Agriculture Division
Department of Attorney General
Constitution Hall, 5" Floor, South Tower
525 West Allegan Street
Lansing, Michigan 48933
Date:
-22-
xxxEND_PAGE:deq04_b577_6019_6376_139
Rennaker, Joanne (DEQ)