Reach D

XXX. EFFECTIVE DATE

80. This Settlement Agreement shall be effective upon receipt by Respondent of a copy
of this Settlement Agreement signed hy the Regi.onal Admi nis trHor, U.S. EPA Re.gion 5.

The undersigned representative of Respondent certifies hclsh~ is fully authorized to enter into the
terms and conditions of this Scttlement Agreement and to bind the Respondent to this document.

Agreed this 12 t h _ day of _ _

.-.=.J.~lY.... ....... 2007.

For Respondent: The Dow Chemical Company

/1 {J r7 /J
By:
e~;~~¥tflit--.k'==""'=='-----~~~
Environment. Health, & Safety and Sustainability
 25

days of receipt of each bill requiring payment, except as otherwise provided in Paragraph 41 of
this Settlement Agreement according to the following procedures.

(i) If the payment amount demanded in the bill is for $10,000 or greater,
payment shall be made to U.S. EPA by Electronics Funds Transfer ("EFT") in accordance with
current EFT procedures to be provided to Respondent by U.S. EPA Region 5. Payment shall be
accompanied by a statement identifying the name and address ofthe party(ies) making payment,
the Site name, U.S. EPA Region 5, and the Site/Spill ID Number B5KF.

(ii) lithe amount demanded in the bill is $ I0,000 or less, the Settling
Respondent may in lieu of the procedures in subparagraph 39(a)(i) make all payments required
by this Paragraph by a certified or cashier's check or checks made payable to "EPA Hazardous
Substance Superfund," referencing the name and address of the party making the payment, and
the EPA Site/Spill ID Number B5KF. Settling Respondent shall send the check(s) to:

U.S. EPA, Region 5

P.O. Box 371531
Pittsburgh, PA 15251-7531

b. At the time of payment, Respondent shall send notice that payment has been
made to the Director, Superfund Division, U.S. EPA Region 5,77 West Jackson Blvd., Chicago,
Illinois, 60604-3590 and to Jeffrey A. Cabn, Associate Regional Counsel, 77 West Jackson .
Boulevard, C-14J, Chicago, Illinois, 60604-3590. ,JJ J
\R '!P (/\\\
c. The total amount paid by Respondent pursuant to Paragraph 39(a) shall be .J) . f-"Jr-\=
de osited b U.S. EPA in the Tittabawassee River Dioxm SpIll SIte S eClal Account Within the tfJ IJ:!' ~d
EPA Hazardous u stance Su erfun to e retame an use to conduct or finance r onse ~ J
actions at or in connection with the Site, or to be trans erre y .S. EPA to the EPA Hazardous ~
Substance Superfund. ' vJ'vU ~
1 ~

~¥ ~?
40. In the event that the payments for Future Response Costs are not made within 45
days of Respondents' receipt of a bill, Respondent shall pay Interest on the unpaid balance. The ~vYr
Interest on Future Response Costs shall begin to accrue on the date of the bill and shall continue
to accrue until the date of payment. Payments ofInterest made under this Paragraph shall be in
addition to such other remedies or sanctions available to the United States by virtue of
Respondent's failure to make timely payments under this Section, including but not limited to,
payment of stipulated penalties pursuant to Section XVIII.

41. Respondent ma dis ute all or part of a bill for Future Response Costs submitted
under this Settl greement, only I Respondent alleges t a as rna
accounting error, or if Respondent alleges that a cost item is inconsistent with the NCP or
outside the scope ofthis Settlement Agreement. If any dispute over costs is resolved before
payment is due, the amount due will b~ adjusted as necessary. If the dispute is not resolved
before payment is due, Respondent shall pay the full amount ofthe uncontested costs to U.S.
 24

requirements ("ARARs") under federal environmental or state environmental or facility siting

laws. Respondents shall identify ARARs in the Removal Work Plan subject to U.S. EPA
approval.
XIII.' EMERGENCY RESPONSE AND NOTIFICATION OF RELEASES

36. 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,
Respondent shall immediately take all appropriate action. Respondent shall take these actions in
accordance with all applicable provisions of this Settlement Agreement, 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. Respondent shall also immediately notify the
OSC or, in the event of his/her unavailability, the Regional Duty Officer, Emergency Response
Branch, Region 5 at (312) 353-2318, of the incident or Site conditions. In the event that
Respondent fails to take appropriate respoQse action as required by this Paragraph, and U.S. EPA
takes such action instead, Respondent shall reimburse U.S. EPA all costs of the response action
not inconsistent with the NCP pursuant to Section XV (Payment of Response Costs).

37. In addition, in the event of any release of a hazardous substance from the Site, other
than deminimis amounts incidental to normal dredging activities undertaken pursuant to this
Settlement Agreement, Respondent shall immediately notify the OSC at (312) 353-2318 and the
National Response Center at (800) 424-8802. Respondent shall submit a written report to U.S.
EPA within 7 business days after each release, setting forth the events that occurred and the
measures taken or to be taken to mitigate any release or endangerment caused or threatened by
the release and to prevent the reoccurrence of such a release. This reporting requirement is in
addition to, and not in lieu of, reporting under Section 103(c) ofCERCLA, 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.

XIV. AUTHORITY OF ON-SCENE COORDINATOR

38. The OSC shall be responsible for overseeing Respondent's implementation of this
Settlement Agreement. The OSC shall have the authority vested in an OSC by the NCP,
including the authority to halt, conduct, or direct any Work required by this Settlement
Agreement, or to direct any other removal action undertaken at the Site. Absence of the OSC
from the Site shall not be cause for stoppage of work unless specifically directed by the OSc.

XV. PAYMENT OF RESPONSE COSTS

39. Payments for Future Response Costs.

a. Respondent shall pay U.S. EPA all Future Response Costs not inconsistent
with the NCP. On a periodic basis, U.S. EPA will send Respondent a: bill req~ that
co~ Itemized Cost Summary. Respondent shall make all payments within 45 calendar
 23

XI. RECORD RETENTION

32. Until 6 years after Respondent's receipt of U.S. EPA's notification pursuant to

Section XXVI (Notice of Completion of Work), Respondent shall preserve and retain all non­

identical copies of records and documents (including records or documents in electronic form)

now in its possession or control or which come into its possession or control that relate in any

manner to the performance of the Work or the liability of any person under CERCLA with

respect to the Site, regardless of any corporate retention policy to the ~ontrary. Until 6 years

after Respondent's receipt of U.S. EPA's notification pursuant to Section XXVI (Notice of

Completion of Work), Respondent 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.

33. At the conclusion of this document retention period, Respondent shall notify U.S.
EPA at least 60 days prior to the destruction of any such records or documents, and, upon
request by U.S. EPA, Respondent shall deliver any such records or documents to U.S. EPA.
Respondent may assert that certain documents, records and other information are privileged
under the attorney-client privilege or any other privilege recognized by federaLJaw. If
Respondent asserts such a privilege, it shall provide U.S. EPA with the following: 1) the title of
the document, record, or information; 2) the date of the document, record, or information; 3) the
name and title of the author ofthe document, record, or information; 4) the name and title of
each addressee and recipient; 5) a description of the subject of the document, record, or
information; and 6) the privilege asserted by Respondents. However, no documents, reports or
other information created or generated pursuant to the requirements ofthis Settlement
Agreement shall be withheld on the grounds that they are privileged.

34. Respondent hereby certifies individually that to the best of its knowledge and belief,
after thorough inquiry, it has not altered, mutilated, discarded, destroyed or otherwise disposed
of any records, documents or other information (other than identical copies) relating to its
potential liability regarding the Site since notification of potential liability by U.S. EPA or the
State or the filing of suit against it regarding the Site and that it has fully complied and will fully
comply with any and all U.S. EPA requests for information pursuant to Sections 104(e) and
122(e) ofCERCLA, 42 U.S.C. §§ 9604(e) and 9622(e), and Section 3007 of RCRA, 42 U.S.C. §
6927.

XII. COMPLIANCE WITH OTHER LAWS

35. Respondent shall perform all actions required pursuant to this Settlement Agreement
in accordance with all applicable local, state, and federal laws and regulations except as provided
in Section 121(e) ofCERCLA, 42 U.S.C. § 692 I(e), and 40 C.F.R. §§ 300.400(e) and
300.4150). In accordance with 40 C.F.R. § 300.4150), all on-Site actions required pursuant to
this Settlement Agreement shall, to the extent practicable, as determined by U.S. EPA,
considering the exigencies of the situation, attain applicable or relevant and appropriate
 22

26. Notwithstanding any provision of this Settlement Agreement, U.S. EPA and the State
retain all oftheir access authorities and rights, including enforcement authorities related thereto,
under CERCLA, RCRA, and any other applicable statutes or regulations.
. X. ACCESS TO INFORMATION

27. Respondent shall provide to' U.S. EPA and to the State, upon request, copies of all
documents, recoros and informatIon wIthin Its possessIon or control or that of its contractors or
agents relating to activities at the Site or to the implementation ofth' ~ement,
inclu ~ng. u not Imite to, sampling, analysis, chain of custody records, manifestsJrucking
logs, rece' am Ie traffic routin corces ondence or other documents or information
related to the Work. Respondent shall also make available to U.S. EPA and to the tate or
purposes of investigation, information gathering, or testimony, its employees, agents, or
representatives with knowledge of relevant facts concerning the performance ofthe Work.

28. Respondent may assert business confidentiality claims covering part or all of the
documents or information submitted to U.S. EPA or to the State under this Settlement
Agreement to the extent permitted by and in accordance with Section 104(e)(7) of CERCLA,
42 U.S.C. § 9604(e)(7), and 40 C.F.R. § 2.203(b). Documents or information determined to be
confidential by U.S. EPA will be afforded the protection specified in 40 C.F.R. Part 2, Subpart
B. If no claim of confidentiality accompanies documents or information when they are
submitted to U.S. EPA, or if U.S. EPA has notified Respondent that the documents or
information are not confidential under the standards of Section 104(e)(7) ofCERCLA or 40
C.F.R. Part 2, Subpart B, the public may be given access to such documents or information
without further notice to Respondent

29. Respondent 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
the Respondent asserts such a privilege in lieu of providing documents, it shall provide U.S. EPA
and the State with the following: 1) the title ofthe document, record, or information; 2) the date
ofthe 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
Respondent. However, no documents, reports or other information created or generated pursuant
to the requirements of this Settlement Agreement shall be withheld on the grounds that they are
privileged. .

30. No claim of privilege or confidentiality shall be made with respect to any data,
including, but not limited to, all sampling, analytical, monitoring, hydrogeologic, scientific,
chemical, or engineering data, or any other documents or information evidencing conditions at or
around the·Site.

31. Notwithstanding any provision of this Settlement Agreement, U.S. EPA retains all of
its information gathering authorities and rights, including enforcement authorities related thereto,
under CERCLA, RCRA and any other applicable statutes or regulations.
 21

and of any contemplated additional shipments of Waste Material to the appropriate state
environmental official in the receivingfacility's state and to the eSc. However, this notification
requirement shall not apply to any off-Site shipments when the total volume of all such
shipments will not exceed 10 cubic yards.

b. Respondent shall include in the written notification the following information:

1) the name and location ofthe 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 oftransportation. Respondent 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.

c. Before shipping any hazardous substances, pollutants, or contaminants from

the Site to an off-Site location, Respondent shall obtain U.S. EPA's certification that the
proposed receiving facility is operating in compliance with the requirements ofCERCLA
Section 12 I(d)(3), 42 U.S.c. § 9621 (d)(3), and 40 C.F.R. § 300.440. Respondent shall only send
hazardous substances, pollutants, or contaminants from the Site to an off-Site facility that
complies with the requirements of the statutory provision and regulation cited in the preceding
sentence.

IX. SITE ACCESS

24. Respondent shall provide access to those areas of the Site that it owns or is in
possession of, which access is necessary to implement this Settlement Agreement. Such access 7
shall be provided to j;PA employees, contractors, agents, cORsu1taftt~epresen~
and S~esentatiyes These individuals shall be permitted to move freely at those areas of A. J~-c.e I
th~that Respondent owns or is in possession of in order to conduct actions which EPA ( - c. 7
determines to be necessary. ~ f-.J '

25. Where any action under this Settlement Agreement is to be performed in areas
owned by or in possession of someone other than Respondent, Respondent shall use its best
efforts to obtain all necessary access agreements within 10 business days after the Effective
Date, or as otherwise specified in writing by the esc. Respondent shall immediately notify U.S.
EPA ifafter using its best efforts it is unable to obtain such agreements. For purposes of this
Paragraph, "best efforts" includes the payment of reasonable sums of money in consideration of
access. Respondent shall describe in writing its efforts to obtain access. U.S. EPA may then
assist Respondent in gaining access, to the extent necessary to effectuate the response actions
described herein, using such means as U.S. EPA deems appropriate. Respondent shall reimburse
U.S. EPA for all "costs and attorney's fees incurred by the United States in obtaining such access,
in accordance with the procedures in Section XV (Payment of Response Costs).
 20

b. Respondent shall submit to U.S. EPA and to the State three copies of all plans,
reports or other submissions required by this Settlement Agreement or the approved Removal

Work Plan. Upon written request by U.S. EPA or the State, Respondent shall submit such

documents in electronic form. '

c. If the Respondent owns real property at the Site where Work related to this
Settlement Agreement will be performed, such Respondent shall, at least 30 days prior to the
conveyance of any interest in such property, give written notice to the transferee that the
property is subject to this Settlement Agreement, and written notice to U.S. EPA and the State of
the proposed conveyance, including the name and address of the transferee. Respondent also
agrees to require that its successors provide the same notice to U.S. EPA, the State, and to any
subsequent transferee that is required of Respondent in the immediately preceding sentence.
Respondent further agrees to require its successors to comply with Sections IX (Site Access) and
X (Access to Information).

22. Final Report. Within 90 calendar days after receipt of all manifests, validated final
analytical and QAIQC data and completion of all Work required by Section VIII ofthis
Settlement Agreement, except for any continuing obligations required by this Settlement
Agreement (e.g., monitoring, record retention and payment of Future Response Costs),
Respondent shall submit for U.S. EPA review and approval, in consultation with the State, a
final report summarizing the actions taken to comply with this Settlement Agreement. The final
report shall conform, at a minimum, with the requirements set forth in Section 300.165 ofthe
NCP, 40 C.F.R. § 300.165 entitled "OSC Reports" and with the guidance set forth in "Superfund
Removal Procedures: Removal Response Reporting - POLREPS and OSC Reports" (OSWER
Directive No. 9360.3-03, June 1, 1994). The final report shall include: 1) a good faith estimate
of total costs or a statement of actual costs incurred in complying with this Settlement
Agreement; 2) a listing of quantities and types of materials removed off-Site or handled on-Site;
3) a listing ofthe ultimate destination(s) of those materials; 4) a presentation of the final
validated analytical results of all sampling and analyses performed; 5) and accompanying
appendices containing all relevant documentation generated during the removal action (e.g.,
manifests, invoices, bills, contracts, and permits). The final report shall also include the.
following certification signed by a person who supervised or directed the preparation of the final
report:

"Under penalty oflaw, I certify thatto the best of my knowledge, after appropriate
inquiries of all relevant persons involved in the preparation ofthe report, the information
submitted is true, accurate, and complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fine and, imprisonment for knowing
violations."

23. Off-Site Shipments.

a. Respondent shall, prior to any off-Site shipment of Waste Material from the
Site to an out-of-state waste' management..facil-ityn3HWide writtennotifrcatiun-ofsuclr shipment
 19

(OSWER Directive No. 9360.4-01, April I, 1990), as guidance for QAJQC and sampling.

Respondent shall only use laboratories that have a documented Quality System that complies

with ANSIIASQC E-4 1994, "Specifications and Guidelines for Quality Systems for

Environmental Data Collection and Environmental Technology Programs" (American National

Standard, January 5, 1995), and "EPA Requirements for Quality Management Plans (QAIR-2)

(EP A/2401B-0 1/002,. March 2001)," or equivalent documentation as determined by U.S. EPA.

U.S. EPA may consider laboratories accredited under the National Environmental Laboratory
~

or-~
Accreditation Program ("NELAP") as meeting the Quality System requirements.

b. Upon request by U.S. EPA or the State, Respondent shall have such a
laboratory analyze samples submitted by U.S. EPA or the State for QA monitoring. Respondent
shall provide to U.S. EPA and the State the QAJQC procedures followed by all sampling teams
and laboratories performing data collection andlor analysis.

c. Upon request by U.S. EPA or the State, Respondent shall allow U.S. EPA, the

State or their authorized representatives to take sP~t a~~r d~les ofan..ysamples

collected by Respondent or its contractors or agen s w I e per ornungteWork. Respondent

shall notify U.S. EPA and the State not less than 3 business days in advance of any sample

collection activity, unless shorter notice is agreed to by U.S. EPA and the State. U.S. EPA and

the State shall have the right to take any additional samples that U.S. EPA or the State deems

necessary. Upon request, U.S. EPA and the State shall allow Respondent or its contractors to

take split or duplicate samples of any samples taken as part of their oversight of Respondent's

implementation of the Work.

20. Post-Removal Site Control. In accordance with the Removal Work Plan schedule, or

as otherwise directed by U.S. EPA after consultation with the State, Respondent shall submit a

proposal for post-removal site control consistent w' . 0.415 1 ofllie NCP and

o R DIrective ~Q, 9360.2-02, Upon approval by U,S. EPA, after a reasonable opportunity

for review and comment by the State, of the proposal for post-removal site control, Respondent

shall implement such controls and shall provide U.S. EPA and the State with annual

documentation of all post-removal site control arrangements.

21, Reporting.

a, Respondent shall submit a m

the State concerning action~ undertaken pursua

days a er e ec Ive ate untl EPA' 'nal Repert under Section XXVI,

unless ot erwise directed in writing_bytbe OSC. These reports shall thereafter be due by the

15th day of each succeeding month and shall describe all significant developments during the

preceding month, including the Work performed and any problems encountered, validated final

.analytical data received during .the reporting period and 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.
 18

modifications shall be incorporated into and become fully enforceable under this Settlement

Agreement.

. c. Except as previously authorized and/or directed by MDEQ, or as provided by

this Settlement Agreement or as directed by U.S. EPA's letter to Respondent dated June 27,
2007, Respondent shall not commence any Work except in conformance with the terms of this
Settlement Agreement, or commence implementation of the Removal Work Plan developed
hereunder until receiving written U.S. EPA approval pursuant to Paragraph 17(b). U.S. EPA
acknowledges that Respondent has commenced mobilization, site preparation, sheet pile work,
and related activities prior to the Effective Date of this Settlement Agreement.

18. Health and Safety Plan. Within 7 calendar days after the Effective Date, Respondent
shall submit for U.S. EPA review and comment a plan that ensures the protection of the public
health and safety during performance of on-Site work under this Settlement Agreement. This
plan shall be prepared consistent with U.S. EPA's Standard Operating Safety Guide (pUB
9285.1-03, PB 92-963414, June 1992). In addition, the plan shall comply with all currently
applicable Occupational Safety and Health Administration ("OSHA") regulations found at 29
C.F.R. Part 1910. IfU.S. EPA determines that it is appropriate, the plan shall also include

contingency planning. Respondent shall incorporate all changes to the plan recommended by

U.S. EPA and shall implement the plan during the pendency of the removal action.

19. Quality Assurance and Sampling.

a. Within 7 calendar days of the Effective Date, Respondent shall submit to U.S.
EPA for approval, a Quality Assurance Project Plan ("QAPP"). Respondent shall use quality
assurance, quality control, and chain of custody procedures for all treatability, design,
compliance and monitoring samples in accordance with "EPA Requirements for Quality
Assurance Project Plans for Environmental Data Operation," (EPA QA/R5) (EPAl240/B-0 1/003,
March 2001); "Guidance for Quality Assurance Project Plans (QAlG5)" (EPAl6001R-98/018,
February 1998), and subsequent amendments to such guidelines upon notification by u.s. EPA
to Respondent of such amendment. Amended guidelines shall apply only to procedures
conducted after such notification. All sampling and analyses performed pursuant to this
Settlement Agreement shall conform to U.S. EPA direction, approval, and guidance regarding
sampling, quality assurance/quality control ("QAlQC"), data validation, and chain of custody
procedures. Consistent with the foregoing, the methods and procedures contained in
Respondent's existing QAPP covering the RCRA corrective actions associated with the Midland
Plant shall be used as much as possible. Respondent shall ensure that the laboratory used to
perform the analyses participates in a QAlQC program t~at complies with the appropriate U.S.
EPA guidance. Respondent shall follow, as appropriate, "EPA Guidance for Quality Assurance
Project Plans," EPAlQA/G-5, EPA/6001R·02/009 (December 2002), "EPA Requirements for
Quality Assurance Project Plans," EPA/QA/R-5, EPAl240/B-01/003 (March 2001) and
"Instructions on the Preparation of a Superfund Division Quality Assurance Project Plan," EPA
Region 5, based on EPA QAIR-5, Revision 0 (June 2000),"Quality AsStlrance/Quality Control
Guidance for Removal Activities: Sampling QAlQC Plan and Data Validation Procedures"
 17

Subpart C. Based upon the results, treatment may: be required prior to disposal and disposal

options will be based upon the analYtical results as provided at 40 C.F.R. Part 268;

(2) Sediments removed from the Site contaminate ;tIl be

transported off-Site for proper disposa at a landfill a roved to a in remediation waste.
W spose 0 10 comp lance with the EPA Off Site Disposal Rule (Section 300.440
of the NCP and 58 Fed. Reg. 49200). Air monitoring for contaminants af concern must be
conducted during the removal action required under this Settlement Agreement in accordance
with the approved Removal Work Plan.

f. All contaminated water generated as part of the removal action under this.
Settlement Agreement must be characterized, treated and disposed of i;;a wastewater treatment
planlt.....WTP") or Temporary WTP as authorlzed~ the State and or as otherwise approved by
U.S. EPA. For purposes of this removal action only, and fur purposes of treating and
discharging waste water generated as part ofthe contaminated sediment de-watering process
only, Respondents existing Midland Plant WTP is determined to be on-Site and, accordingly,
modification of Respondent's Midland Plant WTP National Pollution Discharge Elimination
System permit to allow treatment and discharge of waste water generated as part ofthe
contaminated sediment de-watering process is not necessary;

g. Stabilization of the area within which the Performance Based removal action
Work is conducted, which may include backfilling/grading and erosion control;

h. In no event shall field work begin later than August 15,2007. All
Performance Based removal action Work shall be completed by December 15,2007.

17. Work Plan and Implementation.

a. Within 7 calendar days after the Effective Date, Respondent shall submit to
U.s. EPA for approval a draft Removal Work Plan for performing the removal action 'generally
described in Paragraph 16.a. through 16.h., above. The draft Removal Work Plan shall provide a
description of, and an expeditious schedule for, the actions required by the Work described in
Paragraph 16.a. through 16.h., above, and in this Settlement Agreement.

b. U.S. EPA may approve, disapprove, require revisions to, or modify the draft
Removal Work Plan in whole or in part. To the extent practicable, and only to the extent
consistent with the NCP, EPA shall first provide Respondent one request for modification and an
opportunity to submit the requested modification(s) within 5 calendar days before EPA modifies
the draft Removal Work Plan. If U.S. EPA requires revisions, Respondent shall submit a revised
draft Removal Work Plan within 5 calendar days of receipt of U.S. EPA's notification of the
required revisions. Respondent shall implement the Removal Work Plan as approved in writing
by U.S. EPA in accordance with the schedule approved by U.S. EPA. Once approved, or
approved with modifications, the Removal Work Plan, the schedule, and any subsequent
 16

VIII. WORK TO BE PERFORMED

16. Respondent shall perform, at a minimum, all actions necessary to implement the

approved Removal Work Plan. The actions to be implemented generally include, but are not

limited to, the following:

a. Develop for review and approval by U.S. EPA a Removal Work Plan
describing in detail the Performance Based removal activities to be taiten at the Site. Upon
apP.mYillmplement the Removal Work Plan. The Removal Work Plan shalnnclude a
comprehensive description of the project tasks, procedures to accomplish them, quality
assurance/quality control systems, project documentation, and project schedule. The removal
activities described in the Removal Work Plan shall be performed in accordance with the criteria
in Paragraphs 16.b. through 16.h.A site specific Health and Safety Plan shall be prepared
pursuant to Paragraph 18;

b. The Removal Work Plan shall include, for review and approval by U.S. EPA, a
I;ield Sampling Plan describing the sampling and data collection methods. The Field Sampling
Plan shill take into consideration the sampling needed to determine disposal requirements for
dredged or excavated bottom deposits and sediments, and post-Performance Based removal
action Work sampling to delineate contamination remaining at the Site after the completion of
the Performance Based removal action Work within the area of the Performance Based Work;

c. Post-Performance Based removal action Work sampling and chemical analysis

shall take place within the area ofthe Performance Based work as the Performance Based
removal Work action progresses. Samples shall be collected in accordance with the sampling
and statistical analysis plans contained in the Removal Work Plan. A record of sample locations
and results must be maintained and submitted to U.S. EPA. All sampling shall be completed in
accordance with the deadlines established in the Field Sampling Plan;

d. Excavation and/or dredging of bottom de . and s in the

Tirtabawassee River Witllm eac in accor ance with the Performance Based removal action
workana at the locatIOns specified in the Removal Work Plan;

~l.Q~~~~~~~!laJted...bDl1tGllH1eposits and sediments specified jn

(1) Contaminated sediments removed from the work areas at the Site must
be properly char~~ for disposal as authorized by this Settlement Agreement or as .
otherwise al~e~r aEPllsable la;: Characteristic waste and contaminants may be present
in the borto . . ents and samotm 15e conducted-to_determine the_presell.ce
/ of other contammants. epending on t e manner 0 disposal, along with testing for dioxin and
~azardous wastes, the excavated bottom deposits and sediments shall be tested using the .
Toxic Characteristic Leaching Procedure ("TCLP") to determine if the excavated bottom
deposits and sediments are characteristic of hazardous waste as ro,vided at 40 CF.R. Part 261,
 15

VII. DESIGNATION OF CONTRACTOR, PROJECT COORDINATOR,

AND ON-SCENE COORDINATOR

12. Res'pondent shall retain one or more contractors to perform the Work and shall notify
U.S. EPA of the name(s) and qualifications of such contractor(s) within 5 business days of the
Effective Date. Respondent shall also notify U.S. EPA of the name(s) and qualification(s) of any
other contractor(s) or subcontractor(s) retained to perform the Work at least 5 business days prior
to commencement of such Work. U.S. EPA retains the right to disapprove of any or all ofthe
contractors and/or subcontractors retained by Respondent. If U.S. EPA disapproves of a selected
contractor, Respondent shall retain a different contractor and shall notify U.S. EPA of that
contractor's name and qualifications within 3 business days of U.S. EPA's disapproval. The
contractor must demonstrate compliance with ANSI!ASQC E-4-1994, "Specifications and
Guidelines for Quality Systems for Environmental Data Collection and Environmental
Technology Programs" (American National Standard, January 5, 1995), by submitting a copy of
the proposed contractor's Quality Management Plan ("QMP"). The QMP should be prepared
consistent with "EPA Requirements for Quality Management Plans (QAIR-2)" (EPA/240/BO­
11002), or equivalent documentation as required by U.S. EPA.

13. Respondent has designated, and U.S. EPA has approved, Steven Lucas as the Project
Coordinator who shall be responsible for administration of all actions by Respondent required by J;~9
this Settlement Agreement. To the greatest extent possible, the Project Coordinator shall be ~vt' j

present on Site or readily available during Site work. U.S. EPA retains the right to disapprove of , ..,Q~

the designated Project Coordinator. If U.S. EPA disapproves of the designated Project '7 fr"\

Coordinator, Respondent shall retain a different Project Coordinator and shall notify U.S. EPA ~ (I.

of that person's name, address, telephone number, and qualifications within 4 business days

following U.S. EPA's disapproval. Receipt by Respondent's Project Coordinator of any notice

or communication from U.S. EPA relating to this Settlement Agreement shall constitute receipt

by Respondent.

14. U.S. EPA has designated James Augustyn ofthe Emer ency Res onse Branch,
Regioq,2, as its On-Scene Coordinator xcept as otherwise provided In =ts-­
Settlement Agreement, Respon-dents shall direct all submissions required by this Settlement
Agreement to the OSC at: James Augustyn, On Scene Coordinator, U.S. EPA, 25089 Center
Ridge Road, Westlake, OH 44145. Responde~ encouraged to make its submissions to 7
u.s. EPA on recycled paper (which includes significant post consumer waste paper content I
where possible) and using two-sided ~ies.

15. U.S. EPA and Respondent shall have the right, subject to Paragraph 13, to change
their respective designated OSC or Project Coordinator. U.S. EPA shall notify the Respondent,
and Respondent shall notify U.S. EPA, as early as possible before such a change is made, but in
no case less than 24 hours before such a change. The initial notification may be made orally but
it shall be promptly followed by a written notice.
 14

attachments to this Settlement Agreement and all documents incorporated by reference into this
Settlement Agreement.
 13

consumption offish taken from the river and contaminated with

dioxin from the Site may pose an additional exposure route to
humans.

ii. High levels of hazardous substances or pollutants or contaminants

in bottom deposits and sediments lar ely at or near the surface:­
that a i rate; this factor is present at t e l e u
eXlste 0 loxm-contaminated bottom deposits and sediments at
or near the surface, as well as at depth exist at the Site. The Site is
subject to periodic flooding and erosion. This may result in the
spread of dioxin contamination to other locations within the flood
plain, as well as to downstream locations.

iii. Actual or potential contamination of sensitive ecosystems; this

factor is present at the Site due to theexistence of diOXin­
contaminated bottom deposits and sediments at or near the surface,
as well as at depth exist at the Site. The Site is subject to periodic
flooding and erosion. This may result in the spread of dioxin
contamination to downstream locations and the contamination of
the water in the Tittabawassee River, the Saginaw River, and
ultimately Lake Huron.

iv. The Tittabawassee River is often subjected to extreme weather

conditions in the winter and spring, which enhance the threat of a
release of dioxins and furans. The breakup of ice in the late ~
winter, and the movement of ice floes downstream, causes
scouring of the banks and river bottom. Likewise, heavy spring
rains and/or summer storms increase stream volume and current
velocity, which lead to increased scouring of the river bottom and
banks. All of these forces cause an increase in the volume and
extent of dioxin and furan contamination in the Tittabawassee
River and the Saginaw River.

g. The removal action required by this Settlement Agreement'is necessary to

protect the public health, welfare, or the environment,and, if carried out in compliance with the
terms of this Settlement Agreement, will be considered consistent with the NCP, as provided in
Section 300.700(c)(3)(ii) of the NCP.

VI. SETTLEMENT AGREEMENT AND ORDER

11. Based upon the foregoing Findings of Fact, Conclusions ofLaw, Determinations,
and the Administrative Record for this Site, it is hereby Ordered and Agreed that Respondent
shall comply with all provisions of this Settlement Agreement, including, but not limited to, all
 12

c. Respondent is a "person" as defined by Section 101(21) ofCERCLA, 42

U.S.C. § 9601~21).

d. Respondent is a responsible party under Section 107(a) of CERCLA, 42

U.S.C. § 9607(a), and is liable for performance of response action and for response costs

incurred and to be incurred at the Site.

i. Respondent is the "owner" and/or "operator" of11 facility, as

defined by Section 101(20) ofCERCLA, 42 U.S.C. § 9601(20),
and within the meaning of Section 107(a)(1) ofCERCLA, 42
U.S.C. § 9607(a)(I).

H. Respondent is the "owner" and/or "operator" of a facility at the

time of disposal of hazardous substances at the facility, as defined
by Section 101(20) ofCERCLA, 42 U.S.C. § 9601(20), and within
the meaning of Section 107(a)(2) ofCERCLA, 42 U.S.C. §
9607(a)(2).

e. The conditions described in the Findings of Fact above constitute an actual or

threatened "release" of a hazardous substance from the facility into the "environment" as defined
by Sections 101(22) and 101(8) ofCERCLA, 42 U.S.C.§§ 9601(22) and 9601(8).

f. The conditions present at the Site constitute a threat to public health, welfare,
or the environment based upon the factors set forth in Section 300.415(b)(2) ofthe National Oil
and Hazardous Substances Pollution Contingency Plan, as amended (ltNCP"), 40 CFR
§300.415(b)(2). These factors include, but are not limited to, the following:

i. Actual or otential ex osure to nearb human populations,

animals, orthe food cham f~m h~ar ous su stance llutants or
contamman s; this factor the
of dio
the s e, as we as at ept , eXist at the Site.. Although the Site
is wIthin the Midland Plant property boundary, access to the Site is
unrestricted to pe Ie approachin the site .
River. a ave direct contact with dioxin-contaminated
nd se lmen s· r near the Site's sur ace.
Wildlife 10 the area. alSo as unrestrlcte access. e lte is
subject to periodic floodin~ and erosion. This may result in the
spread of dioxin contamination to othe;}Qcations within the flood
plain, as well as to downstream locations where hUmanS and
wildlife may come into direct contact with the dioxin
contaminatiilll. This may also result in further contamination of
fishand invertebrates within the river. Finally, human
 11

mammalian, and avian prey from the floodplain ofthe Tittabawassee River downriver of
Midland were evaluated using a screening level ecological risk assessment. This analysis was
based on empirical soil PCDDIPCDF concentrations and bioaccumulation, toxicological, and
ecological data from the scientific literature. The question addressed by this ecological risk
assessment was whether an unacceptable risk to ecological receptors in the llftabawassee River
~- .....'" _~~r~as..ariibl}iiliscounted:-·
floodplain could --­

w. The main conclusion ofth

Ecological Risk Assessment" is that the
1~ffc»A5ontaiiilriiiffoiil5VOtmxtrD?cmimi~naoivo

x. In the "(1) Health Risk Analysis ofTittabawassee Fish with Dioxin and (2)
Recommendations for Risk Evaluation," U.S. EPA evaluated the risks to humans from
consuming fish from the Tittabawassee River. Tittabawassee River Fish data collected by DEQ
in 2003 and made available to U.S. EP . _une 2004, was analyzed to assess risks to fish
consumers. The conclusion was that ioxin in rive Ish esent unacceptable risks to public
gS ~
-
health.

Sit'

- z. Dioxins, furans, and chlorobenzenes are listed as hazardous constituents in the

Resource Conservation and Recovery Act (RCRA) Appendix VIII to 40 CFR 261; and Part III ,
Hazardous Waste Management, of Michigan's Natural Resources and Environmental Protection
Act, 1994 PA 451, as amended, Michigan Compiled Laws ("MCL") 324.101 et seq. ("NREPA").

V. CONCLUSIONS OF LAW AND DETERMINATIONS

10. Based on the Findings of Fact set forth above, and the Administrative Record
supporting this removal action, U.S. EPA has detennined that

/~-~-~--~Th;R~achDof the Tittabawasse~--;~ve;~i;is~ ';facility';a~ defined by- ~--~

c:/ / Section 101(2) ofCERCLA,-4llJ-.S,G,§-%O-l(9). -­ u

b. The contamination found at the Site, as identified in the Findings of Fact

above, includes a "hazardous substance" as defined by Section 101(14) of CERCLA, 42 U.S.c. §
9601(14).
 10

the VTR Pilot Site Characterization Report with conditions and removed pilot site status from
the GeoMorph process. Once approved and implemented, the RIWP will meetthe requirements
of Michigan's Natural Resources and Environmental Protection Act ("NREPA"), 1994 PA 451
[Act 451], as amended, Parts III (Hazardous Waste Management) and 201 (Environmental
Remediation), and RCRA regulations and standards of practice.

p. Sampling was conducted under the pilot GeoMorph VTR SAP as part of the
remedial investigation process. The sampling was conducted to identify areas contaminated with
dioxins and [urans, and other contaminants of concern, including chlorobenzene.

r. Sampling conducted as part of the RIWP stron I u est hat the

dioxi!!£furan contamination at the Site and in the Tittabawassc;:e River a ~acent to and
downstream of Dow is associated with the Dow Midland lant. Soil samples collected upstream
of 1 an 1 no contam e evated levels of dioxins or furans. Dioxin and furan concentrations
from these sample locations are consistent with statewide background concentrations. Sampling
CO
within tributaries to the Tittabawassee River have failed to identify any significant sources of
~ dioxins or furans. No significant sources of dioxins or furans are known within the City of
~ Midland other than Dow. Dioxin/furan congener profile charts for Tittabawassee River
l

V\ sediments and floodplain soils downstream of the Dow Midland facility are similar amongst
themselves and very different from sample locations upstream of the Dow Midland facility.

s. In October 2003, MDEQ completed its "TittabawaSsee River Aquatic

Ecological Risk Assessment," and Dow responded to that document on December 19,2003. In
April 2004, MDEQ completed its "Tittabawassee River Floodplain Screening-level Ecological
Risk Assessment." On July 30,2004, V.S. EPA issued its "(1) Health Risk Analysis of
Tittabawassee Fish with Dioxin and (2) Recommendations for Risk Evaluation."

1. In the "Tittabawassee River Aquatic Ecological Risk Assessment," risks to

birds and mammals from consuming fish from the Tittabawassee River below Midland were
evaluated using a streamlined approach that included site-specific contaminant data and
modeling related to TCDD (fish tissue and bird egg concentrations) and data from the scientific
literature.
• 1, V
u. The IS_
Asse~sment" is that the o ece tors, as well as avian . ~
ue tQ..S~ination --S

~
v. In the "Tittabawassee River Floodplain Screening-level Ecological Risk
Assessment" risks to six species of birds and mammals from consuming soils and invertebrate,
 9

discharges to the Tittabawassee River of stored brines and untreated or partially treated process
wastewaters. The primary source of furans and dioxins from the Midland Plant to the
Tittabawassee River is believed to be historic releases of aqueous wastes. The chlorine
manufacturing process was the likely source of comparatively high furan TEQ readings in and
along the Tittabawassee River. Dioxins and furans would have been discharged directly to the
Tittabawassee River. Dioxins and furans found in more recent sediments are also believed to be
related to chlorophenol production that began in the mid-1930s.
m. The historic water discharge flume was, at one time, connected to an outfall at
the Midland Plant.

n. Pursuant to Section 3006 of the Resource Conservation and Recovery Act

("RCRA"), 42 U.S.c. § 6926, the Administrator ofU.S. EPA may authorize a State to administer
the RCRA hazardous waste program in lieu of the federal program when the Administrator finds
that the State program meets certain conditions. Any violation of regulations promulgated
pursuant to Subtitle C (Sections 3001-3023 ofRCRA, 42 U.S.C. §§ 692l-693ge) or of any state
provision authorized pursuant to Section 3006 ofRCRA, constitutes a violation ofRCRA,
subject to the assessment of civil penalties and issuance of compliance orders as provided in
Section 3008 of RCRA, 42 U.S.C. § 6928. Pursuant to Section 3006(b) ofRCRA, 42 U.S.c. §
6926(b), the Administrator of U.S. EPA granted the State of Michigan final authorization to
administer a state hazardous waste program in lieu of the federal government's base RCRA
program effective October 30, 1986. 51 Fed. Reg. 36804 (October 16,1986). The U.S. EPA
granted Michigan fi~ation to administer certain HSWA and additional RCRA
requirements effective January 23, 1990, 54 Fed. Reg. 48608 (November 24, 1989); June 24,
1991,56 Fed. Reg. 18517 (April 23, 1991); November 30,1993,58 Fed. Reg. 51244 (October 1,
1993); April 8, 1996,61 Fed. Reg. 4742 (February 8, 1996); December 28, 1998,63 FR 57912
(October 29, 1998)(stayed and corrected effective June 1, 1999,64 Fed. Reg. 10111 (March 2,
1999»; and, July 31, 2002,67 FR 49617 (July 31,2002). The U.S. EPA authorized Michigan
regulations are codified at Michigan Part III Administrative Rules 299.9101 et seq. See also 40
C.F.R. § 272.1151 et seq.

o. The Michigan Department of Environmental Quality ("MDEQ") issued to

Respondent its current RCRA Hazardous Waste Management Facility Operating license for the
Midland Plant, with an eff~ctive date onune 12, 2003, and an expiration date of June 12, 2013
(the "License"). Under its License, RespoilcIent has been conducting corrective action work. As
part ofthe RCRA corrective action work, Respondent prepared and submitted on December 29,
2005, a Remedial Investigation ("RI" W " WP") for the a'reaconsisti 'v;r---­
cnanne s and floodplains of the Tittabawassee River. On Marc 2, 2006, the MDEQ notified
Respondent that the IDWP was sul:5stantively deficient andDow was requiredtO' submit a
compaery revised RIWP. On July 7, 2006, Respondent submitted a GeoMorph Sampling and
Analysis Plan for the Upper Tittabawassee River ("UTR SAP"). On December 1,2007,
Res on .. com letely revised RIWP to the MDEQ for ~s under
active review by the MDEQ. On Ju y 12,2006, the M EQ approved on a pilot basis, the UTR
SAP for the upper 6.5 miles of the Tittabawassee River. On February 1,2007, Respondent
submitted the UTR Pilot Site Characterization Report. On May 3, 2007, the MDEQ approved
 8

and the Shiawassee River just south of Saginaw, Michigan. The river itself is relatively short,
with only 22.3 miles of length. Most of the Saginaw River flow originates in its major tributaries
with 39 percent of flow contributed by the Tittabawassee River, 11 percent of flow contributed
by the Shiawassee River, 20 percent of flow contributed by the Flint River, 14 percent of flow
contributed by the Cass River and 16 percent of flow contributed by other sources. Most of the
rivers in the watershed, including the Cass and Flint Rivers, indirectly discharge into the
Saginaw River. The Flint River discharges into the Shiawassee River approximately six miles
upstream of the confluence of the Tittabawassee and Shiawassee Rivers. The Cass River also
discharges into the Shiawassee River, approximately five miles downstream of the Flint River
and about one mile upstream of the Tittabawassee/Shiawassee/Saginaw confluence.

'. h. The Saginaw River flows through Saginaw, Michigan and from there to Bay

City, where the river discharges into Saginaw Bay. Saginaw Bay water surface elevations and

seiche effects (oscillations in water surface elevations caused by meteorological events) can

affect Saginaw River water levels and flow rates for its entire length. The Saginaw River

discharges into Lake Huron.

i. Sheet pilin has been used to stabilize the banks 'ofthe Tittabawassee River
along numerous stretc es within the Midland Plant area and in several downstream ocations.
Tnls tYpe of bank stabIlIzatIon increases channel velocity in the immediate area duringilood
stage by restricting the cross-sectional area of the river and, depending on the local cross-section,
may increase downstream flood elevations and erosive forces by increasing the flows and
velocities of water that can no longer be stored on the overbank above the stabilized banks.

j. Initially, the Midland Plant operations involved extracting brine from

groundwater pumped from production wells ranging in depth from 1,300 to 5,000 feet below
groundwater surface. Over the time of its operation, the Midland Plant has produced over 1,000
different organic and inorganic chemicals. These chemicals include the manufacture of24
chlorophenolic compounds since the 1930s.

k. In the very early history of the Midland Plant, wastes were discharged di~ectly
into the Tittabawassee River and, sometime later wastes were srored and treated in onds. lher
wastes were Ispose 0 at t e MI land Plant either 0 ·ng. Over time, changes
in was e management practIces included installation and operation of a modem wastewater
treatment plant as well as use of incinerators instead of open burning. Changes in the waste
water treatment plant and subsequent incorporation of pollution controls into both the operations
of and emissions from the incinerator~ have reduced or eliminated releases and emissions from
the Midland Plant.

l. Elevated dioxin and furan levels in and along the Tittabawassee River appear
to be primarily attributable to brine electrolysis for chlorine manufacturing, and associated waste
management practices for the period at the Midland Plant. Prior to the construction of
wastewater storage ponds in the 1920s, waste from manufacturing processes were discharged
directly to the Tittabawassee River. Flooding of the Midland Plant property resulted in
 7

pollutants, or contaminants. The Site is depicted generally on the map attached as Attachment
A.
b. The Dow Chemical Company is a Delaware corporation and its registered
agent is The Corporation Trust Company with an address of Corporation Trust Center, 1209
Orange Street, Wilmington, Delaware.

c. The Midland Plant began operations in 1897. The Midland Plant covers
approximately 1,900 acres. The majority of the Midland Plant is located on the east side of the
Tittabawassee River and Southof the City of Midland.

d. The Tittabawassee River is a tributary to the Saginaw River, draining 2,600

square miles of land in the Saginaw River watershed. The Tittabawassee River flows south and
east for a distance of approximately 80 miles to its confluence with the Shiawassee River
approximately 22 miles southeast ofMidland. Upstream of the Midland Plant, the Tittabawassee
River flow is regulated by the Secord, Smallwood, Edenville, and Sanford dams. The current
operation of the hydroelectric station at Sanford results in water releases from Sanford Dam
during peak electricity usage periods to provide peaking power to Consumer's Energy. Sanford
Lake has limited flood storage capacity due to a narrow range of permitted lake levels. The Dow
Dam is located adjacent to the Dow Plant. Below the Dow Dam, the river flow is free flowing to
its confluence with the Shiawassee and Saginaw Rivers. Tittabawassee River flow and water
level fluctuate daily in response to releases from the Sanford Dam. The average and 100-year
flood discharge for the Tittabawassee River based on data from 1937 to 1984 are approximately
1,700 cubic feet per second ("cfs") and 45,000 cfs, respectively. The relatively large ratio
between the 1OO-year flood discharge and the long-term average discharge (26.5) indicates that
the river is "flashy,"or has a flow regime that is characterized by highly variable flows with a
rapid rate ofchange.

e. The average monthly discharge from 1937 to 2003 for the Tittabawassee River
2,000 feet downstream' ofthe Dow Dam ranged from approximately 600 cfs (in August) to 3,900
cfs (in March), with an average of 1,700 cfs. Discharge is typically highest in March and April
during spring snowmelt and runoff. The maximum recorded historical crest of the Tittabawassee
River occurred in 1986. A large storm in September 1986 produced up to 14 inches ofrain in 12
hours. The discharge ofthe river near the Dow Dam reached nearly 40,000 cfs, and the river
stage was 10 feet above flood stage at its crest (Deedler, Undated). Flows greater than 20,000
cfs have occurred in 22 of the 95 years between 1910 and 2004, with flows greater than 30,000
cfs occurring in 1912,1916,1946,1948, and 1986. In March 2004, the river discharge reached
approximately 24,000 efs.

f. Portions of the Tittabawassee River floodplain are periodically inundated by

floodwaters.

g. The Saginaw River is located within the Saginaw Bay and River watershed
and drains 6,300 square miles ofland. It is formed by the confluence of the Tittabawassee River
 6

k. "Respondent" shall mean The Dow Chemical Company, a Delaware

corporation.

I. "Site" shall mean Reach D of the Tittabawassee River, located in the vicinity
of an historic, 1,200'foot-Iong, water aiSCfiarge flume containing approximately 14,000 cubic
yards of dioxin-contamInated bottom deposits and sediments to ether with an area in roximity
to ReacJ1Dt1ral is ne~essar for implementing t e removal action, including, for purposes ofthe
Reach D removal actIon only, Respondent's sediment dewatering area (and the 9,000-foot
dredge slurry pipe t the de-watering area). The area ofthe Site where the PerformaRc~d
sediment removal W k will occur is generally bOUnded by the Dow revetment groundwater
interception system ("RGIS") sheet piling along the northeast bank of the Tittabawassee River
and a line of old sheet piling constructed in the 1930s-19405 and varying from 5 to 40 feet
distant from the east bank, as well as contamination that may have migrated immediately beyond
the historic sheet piling along the upstream and downstream portions of Reach D, and all located
within The Dow Chemical Company Midland Plant property with an address of 1000 East Main
Street, 1790 Building, Midland Michigan, 48667 (the "Midland Plant"), and depicted generally
on the map attached as Attachment A.

m. "State" shall mean the State of Michigan.

n. "U.S. EPA" shall mean the United States Environmental Protection Agency
and any of its successor departments or agencies.

o. "Waste Material" shall mean I) any "hazardous substance" under Section

101(14) ofCERCLA, 42 U.S.c. § 9601(14); 2) any pollutant or contaminant under Section
101(33) ofCERCLA, 42 U.S.C. § 9601(33); 3) any "solid waste" under Section 1004(27) of
RCRA, 42 U.S.C. § 6903(27); and 4) any "hazardous material" under Michigan Administrative
Code R 299.9203.

p. "Work" shall mean all activities Respondent is required to perform under this
Settlement Agreement, except those activities required by Section XI (Retention of Records).

IV. FINDINGS OF FACT

9. Based on available information, including the Administrative Record in this matter,

U.S. EPA hereby finds that:

a. The Site includes an area commonly referred to as Reach D of the

Tittabawassee River. Reach D is located at, and in the vicinity of, an historic, 1,200 foot-long,
water discharge flume and contains approximately 14,000 cubic yards of dioxin-contaminated
bottom deposits and sediments. The Site is located within the Midland Plant. The Site is the
~ .­
location where Respondent owns and-operates (and has owned and operated) a cpemical
~

manufacturing plant and is the location where Respondent has disposed ofhazardous substances,
~~--------~~--~-~---
 5

1,2,3,4,7,8-Hexachlorodibenzofuran 1,4-HxCDF 70648-26-9

1,2,3,6,7,8- Hexachlorodibenzofuran 1,6-HxCDF 57117-44-9
1,2,3,7,8,9-.Hexachlorodibenzofuran 1,9-HxCDF 72918-21-9
2,3,4,6,7,8- Hexachlorodibenzofuran 4,6-HxCDF 60851-34-5
1,2,3,4,6,7,8~ Heptachlorodibenzofuran 1,4,6-HpCDF 67562-39-4
1,2,3,4,7,8,9- Heptachlorodibenzofuran 1,4,9-HpCDF 55673-89-7
1,2,3,4,6,7,8,9-0ctachlorodibenzofuran OCDF 39001-02-0

--
Individual dioxins are assessed using a toxic equivalency factor ("TEF"), which is an estimate of
the relative toxicity ofthe compounds to 2,3;7,8-tetrachlorodibenzo-p-dioxin ("TCDD"). These
converted concentrations are then added together to determine the "toxic e9uivalence
concentration" ("TEQ") ofthe dioxin compounds as a whole. ..
=
d. "Future Response Costs" shall mean ~ts, inCluding direct and indirect
costs, that the United States incurs in reviewing or developing plans, reports and other items
pursuant to this Settlement Agreement, verifying the Work, or otherwise implementing,
overseeing, or enforcing this Settlement Agreement on or after the Effective Date.

e. "Interest" shall mean interest at the rate specified for interest on investments of
the U.S. 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 I of each year.

f."National Contingency Plan" or "NCP" shall mean the National Oil and
Hazardous Substances Pollution Contingency Plan promulgated pursuant to Section 105 of
CERCLA, 42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto.

g. "Settlement Agreement" shall mean this Administrative Settlement Agreement

and Order on Consent and all appendices attached hereto (listed in Section XXIX). In the event·
of conflict between this Settlement Agreement and any appendix, this Settlement Agreement
shall control.

h. "Parties" shall mean U.S. EPA and Respondent.

i. "Performance Based" means the method for implementing this interim

response action removal work, based, not on numerical clean" criteria but n a 1 ns,
v~lumes, boundanes, or specific ac ions within the Reach, as described in the Work Plan

j. "RCRA" shall mean the Solid Waste Disposal Act, as amended, 42 U.s.c. §§
6901, et seq. (also known as the Resource Conservation and Recovery Act).
 4

7. Respondent shall ensure that its contractors, subcontractors, and representatives

comply with this Settlement Agreement. Respondent shall be responsible for any
noncomplianc~ with this Settlement Agreement.

III. DEFINITIONS

8. Unless otherwise expressly provided herein, terms used in this Settlement Agreement
which are defined in CERCLA or in regulations promulgated under CERCLA shall have the
meaning assigned to them in CERCLA or in such regulations. Whenever terms listed below are
used in this Settlement Agreement or in the appendices attached hereto and incorporated
hereunder, the following definitions shall apply:

a. "CERCLA" shall mean the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601, et seq.

b. "Effective Date" shall be the effective date of this Settlement Agreement as

provided in Section XXX.

c. "Dioxin" or "dioxin" shall mean the seventeen chlorinated dibenzo-p-dioxins

and chlorinated dibenzofurans identified by the World Health Organization in The 2005 World
Health Organization Re-evaluation ofHuman and Mammalian Toxic Equivalency Factors for
Dioxins and Dioxin-like Compounds, expressed as toxic equivalence concentrations, as set forth
below.

Congener (Full-Name) Congener CAS No

(Abreviation)

Dioxins
2,3,7,8-Tetrachlorodibenzo-p-dioxin 2,3,7,8-TCDD 1746-01-6
1,2,3,7,8-Pentachlorodibenzo-p-dioxin 1,2,3,7,8-PCDD 40321-76-4
1,2,3,4,7,8- Hexachlorodibenzo-p-dioxin l,4-HxCDD 39227-28-6
1,2,3,6,7,8- Hexachlorodibenzo-p-dioxin 1,6-HxCDD 57653-85-7
1,2,3,7,8,9- Hexachlorodibenzo-p-dioxin 1,9-HxCDD 19408-74-3
1,2,3,4,6,7,8- Heptachlorodibenzo-p- 1,4~8-HpCDD 35822-39-4
dioxin
1,2,3,4,6,7,8,9-0ctachlorodibenzo-p- OCDD 3268-87-9
dioxin

Furans
2,3,7,8-Tetrachlorodibenzofuran 2,3,7,8-TCDF 51207-31-9
1,2,3,7,8-Pentachlorodibenzofuran 1,2,3,7,8-PCDF 57117-41-6
2,3,4,7,8-Pentachlorodibenzofuran 2,3,4,7,8-PCDF 57117-31-4
 3

I. JURISDICTION AND GENERAL PROVISIONS

1. This Administrative Settlement Agreement and Order on Consent ("Settlement

Agreement") is'entered into voluntarily by the United States Environmental Protection Agency
("U.S. EPA") and The Dow Chemical Company ("Respondent"). This Settlement Agreement
provides for the performance ofre,moval actions by Respondent and the reimbursement of
certain response costs incurred by th~ United States at or in connection with the area known as
Reach D, which is located at and in the vicinity of an historic flume situated along the northeast
bank of the Tittabawassee River, within The Dow Chemical Company Midland Plant property
with an address of 1000 East Main Street, 1790 Building, Midland Michigan, 48667.

2. This Settlement Agreement is issued under the authority vested in the President ofthe
United States by Sections 104, 106(a), 107 and 122 of the Comprehensive Environmental
Response, Compensation, 'and Liability Actof 1980, 42 U.S.C. §§ 9604, 9606(a), 9607 and
9622, as amended ("CERCLA"). This authority has been delegated to the Administrator of the
U.S. EPA by Executive Order No. 12~80, January 23, 1987,52 Federal Register 2923, and
further delegated to the Regional Administrators by U.S. EPA Delegation Nos. 14-14-A. 14-14-
,!;; and 14-14-D, and to the Director, Superfund Division, Region 5, by Regionai'Delegation Nos:
14-14-A;14-14-C and 14-14-D.

3. U.S. EPA has notified the State ofMichigan (the "State") of this action pursuant to
Section 106(a) ofCERCLA, 42 U.S.C. § 9606(a).

4. U.S. EPA and Respondent recognize that this Settlement Agreement has been
negotiated in good faith and that the actions undertaken by Respondent in accordance with this
Settlement Agreement do not constitute an admission ofany issue of fact, or law, or liability.
Respondent does not admit, and retains the right to controvert in any subsequent proceedings
other than proceedings to implement or enforce this Settlement Agreement, the validity of the
findings of facts, conclusions oflaw, and determinations in Sections IV and V ofthis Settlement
Agreement. Respondent agrees to comply with and be bound by the terms of this Settlement
Agreement and further agre,es that it will not contest the jurisdictional basis or the validity of this
Settlement Agreement or its terms.

II. PARTIES BOUND

5. This Settlement Agreement applies to and is binding upon U.S. EPA and upon
Respondent and its successors and assigns. Any change in ownership or corporate status of
Respondent including, but not limited to, any transfer of assets or real or personal property shall
not alter Respondent's responsibilities under this Settlement Agreement.

6. Respondent is required to carry out all activities required by this Settlement

Agreement.
 2

TABLE OF CONTENTS

I. JURISDICTION AND GENERAL PROVISIONS

II. PARTIES BOUND
III. DEFINITIONS
IV. FINDINGS OF FACT
V. CONCLUSIONS OF LAW AND DETERMINATIONS
VI. ORDER
VII. DESIGNATION OF CONTRACTOR, PROJECT COORDINATOR, AND ON-SCENE
COORDINATOR
VIII. WORK TO BE PERFORMED
IX. SITE ACCESS
X. ACCESS TO INFORMATION
XI. RECORD RETENTION
XII. COMPLIANCE WITH OTHER LAWS
XIII. EMERGENCY RESPONSE AND NOTIFICATION OF RELEASES
XIV. AUTHORITY OF ON-SCENE COORDINATOR
XV. PAYMENT OF RESPONSE COSTS
XVI. DISPUTE RESOLUTION
XVII. FORCE MAJEURE
XVIII. STIPULATED PENALTIES
XIX. COVENANT NOT TO SUE BY U.S. EPA
XX. RESERVATIONS OF RIGHTS BY U.S. EPA
XXI. COVENANT NOT TO SUE BY RESPONDENTS
XXII. OTHER CLAIMS
XXIII. CONTRIBUTION
XXIV. INDEMNIFICATION
XXV. MODIFICATIONS
XXVI. NOTICE OF COMPLETION OF WORK
XXVII FINANCIAL ASSURANCE
XXVIII. INSURANCE
XXIX. SEVERABILITY!INTEGRATIONIApPENDICES
XXx. EFFECTIVE DATE
 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 5

IN THE MATTER OF: ADMINISTRATIVE SETTLEMENT

AGREEMENT AND ORDER ON
The Dow Chemical Company CONSENT FOR REMOVAL ACTION
Midland, Michigan, 48667,
Reach D

Respondent. Docket No.

Proceeding Under Sections 104, 106(a\ 107

and 122 of the Comprehensive
Environmental Response. Compensation,
and Liability Act, as amended, 42 C.S.c. §§
9604, 9606(a). 9607, and 9622 .