UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION III
FINAL DECISION AND RESPONSE TO COMMENTS
FORMER ELCO CORPORATION
HUNTINGDON, PENNSYLVANIA
EPA ID# PAD 003009461
-------
I. PURPOSE
The United States Environmental Protection Agency (EPA) is issuing this Final Decision
and Response to Comments (FDRTC) selecting the final remedy for soil and groundwater
contamination (Final Remedy) at the Former ELCO Corporation Facility (Facility)
located in Huntingdon, Pennsylvania. EPA is issuing this FDRTC under the authority of
the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery
Act of 1976, and the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C.
Section 6901, et seq. (RCRA).
II. PUBLIC COMMENT PERIOD
On August 24, 2022, EPA proposed a remedy of the establishment of a technical
impracticability zone for groundwater within the Facility property boundary; natural
attenuation for contaminated groundwater migrating beyond the Facility property
boundary, and activity and use limitations for land, groundwater, and surface water.
Consistent with public participation provisions under the RCRA, EPA requested
comments from the public on the proposed remedy as described in the Statement of Basis
(SB). The commencement of a thirty (30)-day public comment period was announced in
the Huntingdon Daily News newspaper and on the EPA Region III website. The public
comment period ended on September 23, 2022.
EPA received three comments from KYOCERA AVX Components Corporation on the
proposed remedy during the public comment period. See Attachment A. The comments
and EPA's responses are provided in Section IV, below.
EPA has determined that the public comments do not substantially change, or cause
reason to change, the proposed remedy in the SB and therefore, the Final Remedy is
unchanged from the proposed remedy. The SB is incorporated by reference into this
FDRTC as Attachment B.
III. FINAL REMEDY
EPA's Final Remedy for Facility consists of the following components:
1. For the groundwater within the Facility property boundary: A Technical
Impracticability (TI) zone will be established and mapped in accordance with
EPA's Mapping of Institutional and Engineering Controls in EPA Cleanup
Programs document;
2. For the groundwater at and beyond the Facility property boundary: natural
attenuation until trichloroethylene levels attain the applicable Maximum
Contaminant Level at the Facility boundary and beyond; and
3. The following activity and use limitations:
Final Decision and Response to Comments
ELCO Corporation
September 2022
Page 1
-------
a. Use of the Facility property shall be restricted to commercial or industrial
activity, which shall exclude schools, nursing homes and other residential
uses or residential-style facilities and recreational uses.
b. The surface water and groundwater at the Facility property shall not be
used for any purpose, including, but not limited to use as a potable or non-
potable source, other than to conduct maintenance and monitoring
activities required by PADEP and/or EPA.
c. The subsurface strata and soils in the designated affected areas at the
Facility property shall not be disturbed, except as approved in advance by
PADEP and EPA, and provided that appropriate health and safety
precautions shall be implemented for the protection of workers and any
other persons who may be subject to exposure in the event of such
PADEP and EPA-authorized disturbance.
d. Prior to further development or redevelopment of the Facility property
which could disturb subsurface strata and soils in the designated affected
areas, the owner of the Facility shall, no less than thirty (30) days before
the beginning of the disturbance, submit to the PADEP/EPA, or its then
successor agency, a work plan for management and disposal of disturbed
subsurface strata and soils consistent with the regulations of PADEP and
shall thereafter properly manage and dispose of all subsurface strata and
soils consistent with the work plan approved by PADEP.
e. Any new construction of buildings intended for human occupation will
include mitigation measures designed to prevent vapor intrusion-related
exposures unless PADEP and EPA determine these
unnecessary. Mitigation measures incorporated into new building
construction will be designed by a licensed professional engineer. EPA
and PADEP will be provided with a description of the mitigation
measures prior to building construction.
f. Ensure the existing asphalt/building foundation slab remains in place and
maintained in good condition.
EPA's preferred instrument to implement the activity and use limitations and ensure that
the current and any future landowners comply with the restrictions is an Environmental
Covenant prepared under Pennsylvania's Uniform Environmental Covenants Act, 27 Pa.
C.S. §§ 6501 et seq. (UECA). These restrictions may also be implemented via a permit
or order.
Final Decision and Response to Comments
ELCO Corporation
September 2022
Page 2
-------
In addition, groundwater protection beyond the Facility Property boundary shall continue
through the existing Smithfield Township Municipal Ordinance No. 2001-4, enacted on
July 9, 2001, which prohibits a person whose property is served by public water supply to
drill, or use for any purpose, a water well that is or is likely to be contaminated or where
the pumping of such well may induce the migration or spread of such contaminants.
IV. RESPONSE TO COMMENTS
EPA received three comments on the proposed remedy during the public comment
period. Below are the comments and EPA's responses:
Comment 1
Comment: In prior discussions with the USEPA, KAVX's representatives have
raised questions regarding the USEPA's purported jurisdiction in this matter.
PADEP has jurisdiction over this matter, and USEPA has oversight over certain
of PADEP's environmental programs. KAVX believes that the administrative
record is incomplete regarding the USEPA's purported basis for the sentence
above that the Facility is subject to the USEPA's Corrective Action Program. For
this reason, among others, KAVX reserves and does not waive the right to
challenge USEPA's jurisdiction in this matter.
EPA's response: EPA disagrees with this comment and maintains its position that the
Facility is subject to the Corrective Action Program.
Comment 2
Comment: First, on Page 1 in Section 2 ("Facility Background"), the USEPA
indicates that "The Facility property consists of approximately 21 acres..Based on
information in the Huntingdon County Mapping Department's "Tax Parcel Viewer",
and based on the 2008 deed for the Facility property (see attached deed), the property
is approximately 17 acres rather than the 21 acres referenced in the Statement of
Basis.
EPA's response: Upon review of the deed included as part of the submitted
comments, EPA agrees that the correct acreage for the Facility is approximately 17
acres. EPA's reference for the Facility acreage was taken from ELCO's Remedial
Investigation and Final Reports included as part of the Administrative Record. The
correct acreage is hereby incorporated into the FDRTC.
Final Decision and Response to Comments
ELCO Corporation
September 2022
Page 3
-------
Comment 3
Comment: Second, on Page 2 in Section 2, the USEPA indicates that "The Facility is
currently occupied by Seven D. Industries, LP, which manufactures vinyl window
and patio door products." Arcadis understands that D. Real Estate sold the Facility
property (Tax Parcel 44-02-25.3) to Flat Top Enterprises, LLC (Flat Top) on
December 11, 2008 (see attached deed), and that Flat Top currently owns the Facility
property and uses the building and property for warehousing.
EPA's response: EPA appreciates the update and clarification to the current
ownership of the Facility. The FDRTC hereby incorporates that D. Real Estate sold
the Facility to Flat Top Enterprises, LLC (Flat Top) on December 11, 2008, and Flat
Top currently owns the Facility and uses it for warehousing.
V. DECLARATION
Based on the Administrative Record compiled for the Corrective Action at the Former
ELCO Corporation Facility, EPA has determined that the Final Remedy selected in this
Final Decision and Response to Comments is protective of human health and the
environment.
DANA
AUNKST
Digitally signed by
DANA AUNKST
Date: 2022.09.29
08:49:33 -04'00'
09/29/2022
Dana Aunkst, Director
Land, Chemicals & Redevelopment Division
U S EPA Region III
Date
Final Decision and Response to Comments
ELCO Corporation
September 2022
Page 4
-------
Attachment A
-------
A ARCADIS
Mr. Kevin Bilash
Remedial Project Manager
Land and Chemicals Division
United States Environmental Protection Agency, Region 3
1650 Arch Street
Philadelphia, Pennsylvania 19103-2029
Date: September 23, 2022
Arcadis U.S., Inc.
6041 Wallace Road Extension
Suite 300
Wexford, Pennsylvania 15090
Phone: 724 742 9180
Fax: 724 742 9189
www.arcadis.com
OurRef: 30009106
Subject: Comments to USEPA's July 2022 Proposed Plan
Former Elco Corporation Facility
Huntingdon, Pennsylvania
USEPA ID No. PAD003009461
Dear Mr. Bilash,
On August 24, 2022, the United States Environmental Protection Agency (USEPA) provided a notice to the public
(public notice) announcing the USEPA's proposed remedy for the above-referenced former Elco Corporation
facility (Facility). The USEPA indicated in the public notice that it welcomed comments on the USEPA's July 2022
Statement of Basis. On behalf of KYOCERA AVX Components Corporation (KAVX), Arcadis U.S., Inc. (Arcadis)
respectfully submits the following comments to the USEPA regarding the Statement of Basis.
General Comment
KAVX and Arcadis agree, based on the extensive investigations that have been conducted at the Facility, in
response to requests initially by the Pennsylvania Department of Environmental Protection (PADEP) and later by
the USEPA, that no further action is required at the Facility and the proposed remedy is appropriate.
Comment to Section 1: Introduction; first sentence of second paragraph on Page 1
The first sentence of the second paragraph on Page 1 of the Introduction reads:
"The Facility is subject to EPA's Corrective Action Program underthe Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act (RCRA) of 1976, and the Hazardous
and Solid Waste Amendments (HSWA) of 1984, 42 U.S.C. § 6901 et seq. (Corrective Action
Program)."
In prior discussions with the USEPA, KAVX's representatives have raised questions regarding the USEPA's
purported jurisdiction in this matter. PADEP has jurisdiction over this matter, and USEPA has oversight over
certain of PADEP's environmental programs. KAVX believes that the administrative record is incomplete
regarding the USEPA's purported basis for the sentence above that the Facility is subject to the USEPA's
Corrective Action Program. For this reason, among others, KAVX reserves and does not waive the right to
challenge USEPA's jurisdiction in this matter.
2022-09 KAVX Elco Comments on EPA Statement of Basis final
1/2
-------
Mr. Kevin Bilash
United States Environmental Protection Agency
September 23, 2022
Additionally, KAVX notes two factual inaccuracies in the Statement of Basis1. First, on Page 1 in Section 2
("Facility Background"), the USEPA indicates that"The Facility property consists of approximately 21 acres...".
Based on information in the Huntingdon County Mapping Department's "Tax Parcel Viewer", and based on the
2008 deed for the Facility property (see attached deed), the property is approximately 17 acres rather than the 21
acres referenced in the Statement of Basis. Second, on Page 2 in Section 2, the USEPA indicates that"The
Facility is currently occupied by Seven D. Industries, LP, which manufactures vinyl window and patio door
products." Arcadis understands that D. Real Estate sold the Facility property (Tax Parcel 44-02-25.3) to Flat Top
Enterprises, LLC (Flat Top) on December 11, 2008 (see attached deed), and that Flat Top currently owns the
Facility property and uses the building and property for warehousing.
If you have any questions, please do not hesitate to call me at 724.934.9518.
Sincerely,
Arcadis U.S., Inc.
/ ") ^ // / "
Mark B. Hanish
Project Manager
Email: mark.hanish@arcadis.com
Direct Line: 724.934.9518
Attachment
CC. Jim Zemak, KAVX
William Popham, Arcadis
1 By commenting on these factual inaccuracies, KAVX does not concede that EPA possesses the requisite jurisdiction in this matter.
www.arcaclis.com
2022-09 KAVX Elco Comments on EPA Statement of Basis final
2/2
-------
SSL 9221:0 09 15
T-H-I-S D-E-E-P
MAPE THE '' day of December, in the year of our Lord two thousand eight (2008).
BETWEEN D REAL ESTATE, INC., a Pennsylvania Corporation with its principal place of
business at 3229 Pleasant Valley Boulevard, Altoona, Pennsylvania, GRANTOR,
A-N-D
FLATTOP ENTERPRISES LLC, a Pennsylvania limited liability company, of Huntingdon
County, Pennsylvania, GRANTEE.
WITNESSETH, that in consideration of ONE MILLION FIVE HUNDRED THOUSAND
AND 00/100 ($1,500,000.00) DOLLARS in hand paid, the receipt whereof is hereby acknowledged,
the said grantor does hereby grant and convey to the said grantee, its successors and assigns:
ALL that certain tract or parcel of land and premises, situate, lying and being in the Township
of Smithfield, in the County of Huntingdon, and Commonwealth of Pennsylvania, more particularly
described as follows:
BEGINNING at a point, said point being located immediately north of Legislative Route
31034 as more fully set forth in a Plan of Survey hereinafter described and being the southeastern
corner of the parcel hereinafter described; thence along the line of lands now or formerly of
Huntingdon Business & Industry, Inc., South 58 degrees, 58 minutes West, 1100 feet to a point;
thence along the line of lands now or formerly of the Pennsylvania Electric Company North 31
degrees, 02 minutes West, 670 feet to a point; thenee along the line of lands now or formerly of
Huntingdon Business & Industry, Inc., North 58 degrees, 58 minutes, East 1100 feet to a point;
thence along the line of lands now or formerly of Huntingdon County Industrial Development
Authority, South thirty one (31) degrees, two (02) minutes East, 670 feet to a point, the place of
BEGINNING. CONTAINING 16.92 Acres as more fully set forth in a plan of Survey for Elco
Corporation prepared by Africa Engineering Associates, Inc. dated May 23,1983 and being Drawing
No. 9784 and having thereon erected a manufacturing facility.
TOGETHER WITH all the right, title and interest of the Grantor in and to the easements for
ingress and egress and rights attendant thereto as set forth in Huntingdon County Misc. Book 72, at
Page 491.
TOGETHER WITH all the right, title and interest of the Grantor in and to the sewer line
easement and rights attendant thereto as set forth in Huntingdon County Misc. Book 72, Page 482.
UNDER AND SUBJECT to and together with the benefits of the restrictions and provisions
in Declaration of Protective Restrictions recorded in Huntingdon County Misc. Book 60, Page 499.
-------
&K 9 2 2 PG 0 9 I 6
under AND SUBJECT to information and restrictions set forth in the Deed
Acknowledgment attached to deed recorded in Huntingdon County Record Book 554, Page 0651.
BEING the same premises title to which vested in the grantor herein by deed of ELCO
U.S.A. Inc. dated December 5,2000, and recorded in Huntingdon County Record Book 554, Page
0651,
BEING TAX PARCEL NO, 44-02-25.3
UNDER AND SUBJECT, nevertheless, to the express condition and restriction that the use
of the Premises conveyed herein shall be restricted to the construction of new or expanding facilities
to be used for manufacturing, product assembly, light industrial, distribution and/or warehousing,
research and development and other commercial or retail uses compatible with the industrial nature
of the Premises. The usage restrictions herein set forth shall be a covenant running with the land and
shall not be altered or eliminated without the concurrence of the United States Department of
Commerce, Economic Development Administration, or a successor agency. The Grantee, for itself,
its successors and assigns by acceptance of this indenture, agrees with the grantor, its successors and
assigns, that the said condition and restriction shall be a covenant running with the land, and that in
any deed of conveyance of said premises or any part thereof fo any person or persons, or entity or
entities, said condition and restriction shall be incorporated by reference to this indenture and the
record hereof or as fully as the same are contained herein.
UNDER AND SUBJECT to Consent Order and Decree entered into between ELCO, U.S.A.
Inc., D Real Estate, Inc. and the Commonwealth of Pennsylvania, Department of Environmental
Protection, attached hereto as Exhibit "A", the entire contents of which are incorporated herein by
reference.
GRANTOR ACKNOWLEDGES THAT HAZARDOUS SUBSTANCES AND HAZARDOUS
WASTES HAVE BEEN DISPOSED OF ON THE HEREIN DESCRIBED PROPERTY; FOR A
DESCRIPTION OF SUCH MATERIALS AND LOCATION THEREOF SEE DEED
ACKNOWLEDGMENT DATED DECEMBER 5,2000, ATTACHED AS EXHIBIT "A' TO DEED
RECORDED IN HUNTINGDON COUNTY RECORD BOOK 554, PAGE 0651.
-------
9 2 2 P6 0 9 I 7
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
In the Matter of:
ELCO U.S.A. INC. Buyer/Seller Agreement
Re: Former Elco U.S.A. Facility
P REAL ESTATE, INC. State Highway 303 5 (Fairgrounds Road)
Huntingdon Industrial Park
Huntingdon, Pennsylvania
CONSENT ORDER AND AGREEMENT
This Consent Order and Agreement ("CO&A") is entered into this k day of
November, 2000, by and among the Commonwealth of Pennsylvania, Department of
Environmental Protection {the "Department"), ELCO U.S.A. Inc., a wholly owned subsidiary of
AVX Corporation, ("Seller") and D Real Estate, Inc. ("Buyer").
The Department has found and determined the following;
The Parties
A. The Department is the agency with the duty and authority to administer and
enforce the Land Recycling and Environmental Remediation Standards Act, Act 2
ofMay 19,1995, P.L, 4, No. 1995-2,35 P.S. Sects, 6026.101 et seq. ("Act 2M);
the Solid Waste Management Act, Act of July 7, 1980, P ,L. 380, No. 97, as
amended, 35 P.S. Sects. 6018.101 et seq. ("Solid Waste Act"); the Clean Streams
Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. Sects. 691.1 et seq.
("Clean Streams Law"); the Storage Tank and Spill Prevention Act, Act of July 6,
1989, P.L. 169, as amended, 35 P.S. Sects. 6021,101 et seq. ("Storage Tank
Act"); Section 1917-A of the Administrative Code of 1929, Act of April 9,1989,
P.L. 177, as amended, 71 P.S. Sect. 510.17 ("Administrative Code"); and the
rules and regulations promulgated thereunder,
B. Seller is a Delaware corporation with a principal place of business located at 801
17th Avenue South, Myrtle Beach, South Carolina 29578-0867. Seller is in the
business of producing and distributing a broad line of electronic connector
products.
C. Buyer is a Pennsylvania corporation with a principal place of business located at
3229 Pleasant Valley Boulevard, Altoona, Pennsylvania 16602. Buyer is in the
business of manufacturing and distributing windows, window components, roof
trusses and vinyl fencing.
EXHIBIT
IMflTlMi
-------
bk 9 2 2 f'G 0918
The Property
D. The property, owned by the Seller, consists of a single parcel containing J 6.92
acres and all improvements thereon, located at the Huntingdon Industrial Park,
State Highway 3035 (Fairgrounds Road), Huntingdon, Pennsylvania, being
identified as Tax Parcel 25,3 shown on Map 44, Block 2 (the "Property"), A
description of the Property is attached hereto as Exhibit A, The Property is
situated in an area called the Huntingdon Industrial Park, which consists of the
Property and two other industrial/commercial facilities located to the northeast of
the Property along State Highway 3035 (Fairgrounds Road). Southwest of the
Property, also along Stale Highway 3035, are utilities (OPU Energy and Verizon
[Bell Atlantic]) and other commercial establishments, To the north of the
Property is a hillside which is undeveloped. To the south of the Property (across
State Highway 3035) are residences and commercial establishments,
E. The building on the Property was originally constructed in the 1962/1963
timeframe by Blco U.S.A. as the result of a U.S. Government grant in order to
construct components needed by the Government. The acceptance of the grant
was contingent upon the manufacturing site being situated in an underdeveloped
area in order to create job opportunities for the unemployed. Major modifications
were made in the 1966 timeframe, including a factory addition to the western side
of the existing building and paving, Prior to this 1996 addition, a loading dock
had been located in the area that is currently the western part of the plating
department, A row of storage and maintenance rooms were added to the back of
the building sometime before the early 1970's. In 1982, a row of offices was
added to the front of the building.
The former Blco U.S.A. facility shut down on June 30,1996. Currently, the
building is vacant, except for a custodial office and the remedial vacuum
enhanced recovery (VER) system which is located in a room on the north side of
the building.
The principal sources of contamination are as follows:
• Releases in the area of the former loading dock in the northeast area of the western
portion of former plating department and also in the former "orange team" room/
maintenance room. The releases in the area of the former loading dock appear to date
back approximately 35 years to the early years of operation (1962-1966), since they pre-
date the construction of the 1966 building addition.
• Releases in the former drum storage area and adjacent alleyway behind (north of) the
building.
-------
3K 9 2 2 P G o 9 1 9
• Releases resulting from the application of sludge from the former
plating department to the so-called "effluent application area" located
on a small slope just north of the building.
• Releases relating to construction and demolition debris disposed of in
the "debris deposition area" located on the undeveloped area of the
Property situated easterly of the building.
F. The facilities, structures and other improvements currently located on the Property
include the following: a manufacturing building having approximately 110,665
square feet of floor area, including manufacturing space and office area, and an
accessory storage shed and paved parking lot.
Contamination of the Property
G. The location and horizontal and vertical extent of environmental contamination on
the Property has been assessed in the following environmental investigation report
("Report"):
1. Remedial Investigation Report, Former Elco U.S.A Facility, Huntingdon,
Pennsylvania dated September, 2000, as prepared by Vincent Uhl
Associates, Inc.
H. The Report is incorporated herein by reference. It has been provided to the
Department and is maintained as a public document by the Department in
accordance with its standard document retention practices.
The Proposed Sale
L Seller intends to sell the Property to Buyer, who intends to buy the Property and
to utilize it for the manufacture, storage and distribution of windows, window
components, roof trusses and vinyl fencing.
J. Buyer represents to the Department that it did not cause or contribute to, and is
not otherwise liable or responsible under environmental law for, the identified
contamination of the Property. The Department is not aware of any information to
the contrary that would indicate such liability or responsibility.
-------
a: 9?i?PG0920
The Remediation Plan
K, Seller intends to remediate the identified contamination. The proposed
Remediation Plan ("Plan") is contained in the Cleanup Plan, Former Elco U.S.A.
Facility, Huntingdon, Pennsylvania dated September, 2000, as prepared by Vincent
Uhl Associates, Inc. and submitted to the Department on September 20,2000,
The Plan proposes remediation of the Property to meet a Site-Specific and
Statewide Health Standard based on nonresidential use of the Property, as those
terms are used in Act 2, The Plan may be changed in the future, with the approval
of the Department. Because the remedial standard is based on nonresidential use
of the Property, any other use, or any change in the exposure patterns on which
the Plan is based, may require additional remediation of contamination remaining
on the Property.
After full and complete negotiation of all matters set forth in this CO&A, and upon mutual
exchange of the covenants contained herein, the parties intending to be legally bound, it is hereby
ORDERED by the Department and AGREED TO by Seller and Buyer as follows:
1. Bindings. Seller and Buyer agree that th$ findings in Paragraphs A through L are
true and correct and, in any matter or proceeding involving either or both of them
and the Department, Seller and/or Buyer shall not challenge the accuracy or
validity of these findings.
2. Seller's Obligations, Seller shall;
a. Attain and demonstrate compliance with the Site-Specific and Statewide
Health Standard, as the case may be, in accordance with the Plan and Act
2, by December 31, 2001.
i. The Notice of Intent to Remediate ("NIR") and the municipal and
public notices of the NIR pursuant to Act 2 were sent out on
September 24, 1997.
ii. Upon completion of remediation in accordance with the Plan and
Act 2, submit the final report to the Department, and send the
municipal and public notices of the final report by December 31,
2001.
b. Include restrictions in its deed to Buyer (1) limiting the use of the Property
to commercial or industrial activity, excluding schools, nursing homes and
other residential-style facilities and recreational areas and (2) requiring the
maintenance of any engineering controls on the Property, as covenants
running with the land.
c. Record this CO&A and its Exhibit with the Deed to the Property, in the
Recorder of Deeds Office for Huntingdon County, and index the Deed,
listing it under Seller, as Grantor, and Buyer, as Grantee.
A
-------
bk 9 2 2 PG o 9 2 I
3. Buyer's Obligations. Buyer shall:
a. Use the Property only for commercial or industrial activity, excluding
schools, nursing homes and other residential-style facilities and recreational
areas.
b. The agreement by Buyer in Paragraph 3.a. above is a covenant running
with the land, and Buyer shall include this covenant in all deeds, leases and
other instruments of conveyance of the Property.
c. Avoid disturbing subsurface strata and soils in the restricted areas
designated in the Cleanup Plan, except as may be necessary to install
adequate foundation bearing support features. If such disturbance is
proposed as part of Buyer's development of the Property, Buyer shall no
less than thirty (30) days before beginning the disturbance, submit to the
Department a Work Plan for management and disposal of disturbed
subsurface strata and soils consistent with the regulations of the
Department. Thereafter, Buyer shall properly manage and dispose of all
subsurface strata and soils consistent with the Work Plan as approved by
the Department.
d. Notify the Department if the Buyer or any successor to the Buyer proposes
to change the exposure patterns on which the remediation standard was
based, as summarized in Paragraph K above, and take steps to assure that
an Act 2 standard continues to be met.
e. Notify the Department when the Property has been purchased and provide
to the Department, within ten (10) days of the transfer of title, a copy of
the instrument used to transfer title, containing the covenants described in
Paragraphs 2.b. and 3.a. above.
£ Notwithstanding the provisions of this Paragraph 3 to the contrary, Buyer
and each of Buyer's successors and assigns, including Buyer's successors
in title to the Property, shall only be obligated to comply with the
provisions of Paragraph 3 during their period of ownership and/ or
operation of the Property, and shall not be liable for such compliance after
they have ceased to own or operate the Property.
-------
R 922P60922
4. Covenant Not To Sue. Provided Seller complies with the obligations in
Paragraph 2 above, and subject to the limitations set forth in Paragraphs 5 and 12
below, the Department hereby covenants not to sue or take administrative action
against Buyer under the environmental laws of the Commonwealth listed in
Paragraph A above because of Buyer's ownership interest in the Property, for
remediation of the identified contamination. This covenant not to sue is null and
void if the Department determines that the Buyer, its agents, employees or
representatives caused or contributed to the identified contamination or submitted
false information to the Department. When the final report has received the
Department's approval, the liability protection conferred on Seller by Section 501
of Act 2 shall pass automatically to Buyer pursuant to Section 501 (a)(3), and this
Covenant Not to Sue shall become null and void.
5. Reservation of Rights. With respect to any contamination on the Properly not
part of the identified contamination, or any contamination caused or contributed to
by Buyer after Buyer assumes ownership of the Property, the Department
expressly reserves the right to require Buyer to remediate, to the extent required
by law.
6. Non-interference. Neither Seller nor Buyer shall interfere with the performance
of the remedial obligations under this CO&A
7. Non-Exacerbation, Neither Seller nor Buyer shall, by act or omission, exacerbate
any contamination of the Property.
8. Access. Buyer shall allow Seller, the Department and their representatives
reasonable access to the Property during and after implementation of the Plan for
purposes of remediation and monitoring the progress and results thereof. Seller
and the Department will use their best efforts to minimize interference with
Buyer'8 use of the Property. However, nothing in this CO&A shall limit the
Department's statutory rights regarding access to the Property.
9. Transferability,
a. This CO&A shall be transferable by Buyer to any subsequent owner of the
Property ("Transferee") who did not cause or contribute to and is not
otherwise liable for contamination of the Property, provided that the
subsequent owner or anyone who intends to take title to the Property
agrees in writing to the obligations of this CO&A. Buyer, or anyone who
intends to transfer title to the Property, shall provide a copy of this CO&A
to anyone who intends to take title to the Property.
b. Within five (5) days of transferring any part of the Property to a
Transferee, Buyer or anyone who intends to transfer title to any part of the
Property shall notify the Department in writing of the date that legal title to
the Property was transferred and the name and address of the Transferee.
, iMfim
-------
ni: 922 P6 0923
c. In the event of such transfer in accordance with the terms of this CO&A,
the Transferee shall be entitled to the benefits of the covenant not to sue
provided in Paragraph 4 above,
10. Deed Notification. Seller or Buyer, as appropriate, shall include in any Deed for
the Property an acknowledgment of hazardous substances and/or hazardous
wastes on the Property in accordance with Sec. 405 of the Solid Waste Act and
Sect. 512 of the Hazardous Sites Cleanup Act, Act of October 18,1988, P.L. 756,
No. 108,35P.S. Sect. 6020.101 et seq.
11. Non-Reiease of Other Parties. Nothing in this CO&A is intended, nor shall be
construed, to diminish or modify in any way the obligations with respect to the
Property of any person or entity, other than those persons set forth in Paragraph 4
above, to the extent set forth in Paragraph 4 above.
12. Remedies.
a. in the event Seller or Buyer fails to comply with any provision of this
CO&A, the Department may, in addition to the remedies prescribed herein,
pursue any remedy available for a violation of an order of the Department,
including an action to enforce this CO&A.
b. The remedies provided by this paragraph are cumulative and the exercise of
one does not preclude the exercise of any other. The failure of the
Department to pursue any remedy shall not be deemed to be a waiver of
that remedy.
13. Liability of Parties. Seller and Buyer shall inform all persons necessary for the
implementation of this CO&A of the terms and conditions of this CO&A. The
Seller shall be liable for violations of Paragraphs 2,6, 7 and 10 above, including
those violations caused by, contributed to or allowed by its directors, officers,
agents, managers, servants and privies and any persons, contractors and
consultants acting under or for Seller. Buyer shall be liable for violations of
Paragraphs 3,6,7,8 and 10 above, including those violations caused by,
contributed to, or allowed by its directors, officers, agents, managers, servants and
privies and any persons, contractors and consultants acting under or for Buyer.
-------
bk 922PG0921}
] 4. Correspondence With Department. All correspondence with the Department
concerning this CO&A shall be addressed to;
Ms. Patricia J. Romano
Environmental Cleanup Program
Department ofEnvironmental Protection
Southeentral Region
909 Elmerton Avenue
Harrisburg, PA 17110-8200
15, Correspondence With Seller and Buyer, All correspondence with Seller
concerning this CO&A shall be addressed to:
Mr. Larry Blue
Sr. Corporate Environmental Engineer
801 17 Avenue South
Myrtle Beach, South Carolina 29578-0867
All correspondence with Buyer concerning this CO&A shall be addressed to:
Mr. Bruno DeGol, Jr.
D Real Estate, Inc.
3229 Pleasant Valley Boulevard
Altoona, VA 16602
Seller and Buyer shall notify the Department whenever there is a change in the
¦ contact person's name, title or address. Service of any notice or any legal process
for any purpose under this CO&A, including its enforcement, may be made by
mailing a copy by first class mail to the above addresses, respectively.
16 Provisions Not Severable, The provisions of this CO&A are not severable. If
any provision or part hereof is declared invalid or unenforceable, or is set aside for
any other reason, then the entire CO&A shall be void and of no continue in Ml
force and effect between the parties.
17. Entire Agreement. This CO&A shall constitute the entire integrated agreement
of the parties. No prior or contemporaneous communications or prior drafts shall
be relevant or admissible for purposes of determining the meaning or extent of any
provisions herein in any litigation or any other proceeding.
18. Modifications. No changes, additions, modifications or amendments of this
CO&A shall be effective unless they are set out in writing and signed by the parties
hereto.
-------
8K 9 ?. 2 pg 0925
19. Attorney Fees. The parties agree to bear their respective attorney fees, expenses
and other costs in the prosecution or defense of this matter or any related matters,
arising prior to execution of this CO&A.
20. Execution of Agreement. This CO&A may be executed in counterparts.
21. Titles. A title used at the beginning of any paragraph of this CO&A may be used
to aid in the construction of that paragraph, but shall not be treated as controlling,
22. Effective Date. This CO&A shall become effective upon execution provided that
the Buyer buys the Property within sixty (60) days of execution of this CO&A.
I3T
ITU
T
-------
bk 922P60926
IN WITNESS WHEREOF, the parties hereto have caused this Consent Order and
Agreement to be executed by their duly authorized representatives. The undersigned
representatives of Seller and Buyer certify under penalty of law, as provided by 18 V* C.S.
Section 4904, that they are authorized to execute this CO&A on behalf of Seller and Buyer,
respectively; that Seller and Buyer consent to the entry of this CO&A as a final Order of the
Department: and that Seller and Buyer hereby knowingly waive any rights to appeal this CO&A
and to challenge its content or validity, which rights may be available under Section 4 of the
Environmental Hearing Board Aet, the Act of July 13,1988, P.L 530, No. :198S-H 35 P.S
Sect 7514; the Administrative Agency Law, 2 Pa. C.S, Sect. 103(a) and Chapters 5A and 7A
thereof; Of any other provisions of law. (Signature by attorneys for Seller and Buyer certifies only
that the agreement has been signed after consulting with counsel.)
FOR SELLER
ELCO U.S.A. INC.
By; -
Name- ALLAN H. cole
Titfe VICE PRESIDENT OF SALES
FOR BUYER:
FOR THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
ENVIRONMENTAL PROTECTION:
[,—... i
'tJLL
aj!
fame} Tflm f- w(fi
irwronmental Program Manager
Environmental Cleanup Program
[Name] MAdTiN fi- $/?(>£ t
[Regional-Counsel or
Assistant Counsel]
D Real Estate, Inc.
rui
n
T
1A
-------
EK 92?pg0927
JURAT Page
STATE OF SOUTH CAROLINA, SS,
COUNTY OF HORRY
On this 2nd day of November, 2000, before me, a Notary Public, the undersigned
officer personally appeared, Allan b. COLE who acknowledged (him)(her) self to be the
yp of sales of ELCO U.S.A. Inc., a corporation, and that (s)he as such Allan h . COLE
. , being authorized to do so, executed the Consent Order and Agreement for the purpose
therein contained by signing the name of ELCO U.S.A. Inc. by (him)(her)self as vp of sales
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
fflMT
-------
sic 9 2 2 re 0928
STATE OF PENNSYLVANIA
COUNTY OF DAUPHIN
On this the 15°' day of November, 2000, before mo, a Notary Public, tho undersigned
officer, personally appeared James T. Flesher, who acknowledged himself to be the
Environmental Program Manager, Environmental Cleanup Program, for the Commonwealth of
Pennsylvania, PepRrtment of Environmental Protection, and that he m such Program Manager,
being authorized to do bo, executed the Consent Order and Agreement for the purpose therein
contained by signing the name of the Commonwealth of Pennsylvania, Department of
Environmental Protection, by himself as Environmental Program Manager,
IN WITNESS WHEREOF, J have hereunto set my hand and official seal
Notary Public
-------
Attachment B
------- |