TABLE OF CONTENTS
Pennsylvania Brownfields redevelopment received a major jump-start with the passage of the Land Recycling and Environmental Remediation Standards Act (often referred to as Act 2) in 1995. Act 2 provides for numerical and risk based clean-up standards as well as an administrative process for receiving formal clean-up approval from Pennsylvania Department of Environmental Protection (PADEP). Act 2 approval constitutes a statutory release from legal liability without having to enter a consent order with the state.
PADEP's 1997 regulations set forth prescribed risk assessment methodologies, as well as the presumptive media specific clean-up standards for soil and groundwater (referred to by PADEP as state-wide health standards). Important implementation details reside in PADEP's December 1997 Technical Guidance Manual.
The Act 2 clean-up approval process greatly facilitates completion of clean-ups for both ongoing operations and for facilities where a corporate or real estate sale are anticipated. The process is typically initiated by the filing of a Notice of Intent (NIR). Subsequently one is required to file a final report demonstrating attainment with Act 2 standards. Release from liability is automatic, upon DEP acceptance and approval of the demonstration of attainment, including any necessary quarterly monitoring.
In a real estate transaction, the time frames of the Act 2 program do not provide the legal finality usually required by the parties in a timely manner. Thus, there is an additional and often critical program component known as the "Buyer/Seller" Agreement. This Agreement is essentially a consent order between PADEP and all parties to the transaction. The agreement typically grants a covenant not to sue to the Buyer, pending resolution, by the seller, of remedial issues via Act 2. This interim legal protection will often satisfy a nervous lender as well as reducing pressure to seek unquantified contractual remediation commitments from the Seller, backed by escrowed funds or a letter of credit.
The Buyer/Seller Agreement typically has three major substantive components:
1) It establishes a baseline administrative record, based on existing investigative data [the scope of protection is a function of data comprehensiveness];
2) It grants a covenant not to sue the Buyer for conditions described in the record [the covenant runs with the land and is transferable];
3) It obligates the Seller to achieve compliance with Act 2 clean-up standards by either demonstrating that current conditions are compliant, or by undertaking and obtaining approval for necessary remedial action. [See Appendix A] Act 2 approval applications often include statewide health standards for one medium (e.g. soil) and site specific standards for another (e.g. groundwater).
Where compliance will be demonstrated via site specific risk assessment, the Agreement usually sets froth the deed restrictions which PADEP requires Seller to record.
Where a site is located in an Enterprise Zone, or is recognized by DEP to be an "orphan" site (no available party liable for cleanup) Act 2 provides streamlined procedures and standards aimed at minimizing site hazards for specific plans of use. This approach is known as "Special Industrial Area" or SIA. It is possible to incorporate the SIA approach into a Buyer/Seller-type agreement, in order to facilitate the acquisition of title by a redeveloping party, prior to final Act 2 clearance. [See Appendix B]
While providing liability limitation for the Buyer, Buyer/Seller Agreements can also create risks for the Seller. Specifically, commitments are required with respect to Act 2 compliance, without necessarily knowing what the requisite clean-up will cost. The best strategy for minimizing Seller risk is to prepare a clean-up plan in advance and discuss it with PADEP before negotiating an agreement. This strategy essentially creates an informal pre-application review, which would usually be refused in a non-Brownfields context. This also creates an important opportunity to involve and "sell" the project to interested local players such as an industrial development agency or municipality.
Experience thus far has shown that selling Brownfields redevelopment to local stake-holders greatly increases negotiating leverage with the State and the ability to seek expedited approval where real estate deadlines dictate. As with most environmental problem-solving, doing the necessary homework up front, building stake-holder consensus, and applying gentle-but-firm pressure to the state, pays dividends in the final result. With respect to the Buyer/Seller Agreement program, the dividends received include risk minimization for an otherwise reluctant Buyer and if normal pre-Act 2 application review of remedial plans for the Seller.
1999 FORM
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF ENVIRONMENTAL PROTECTION
In the Matter of:
[Name of Seller]: Buyer-Seller Agreement
: re: [Site address]
:
[Name of Buyer]:
CONSENT ORDER AND AGREEMENT
This Consent Order and Agreement is entered into this day of _____, 199_, by and among the Commonwealth of Pennsylvania, Department of Environmental Protection ("Department"), [Seller's name] ("Seller") and [Buyer's name] ("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 of May 19, 1995, P.L. 4, No. 1995-2, 35 P.S. Sects. 6026. 101 et seq. ("Act 2"); the Hazardous Sites Cleanup Act, Act of October 18, 1988, P.L. 756, No. 108, as amended, 35 P.S. ' 6020.101 et seq. ("HSCA"); the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (Public Law 96-510), 42 U.S.C. ' 9601 et seq. ("CERCLA"); 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, 1929, P.L. 177, as amended, 71 P.S. Sect. 510-17 ("Administrative Code"); and the rules and regulations promulgated thereunder.
B. [Name of seller] ("Seller") is a [name of state] corporation with a principal place of business located at [specific address and location]. Seller is in the business of [describe nature of business].
C. [Name of buyer] ("Buyer") is a [name of state] corporation with a principal place of business located at [specific address and location]. Buyer is in the business of [describe nature of business].
The Property
D. The property, owned by the Seller, consists of a lot of acres and all improvements thereon, located at [exact address], Tax Parcel Number (the "Property"). [Here, give a somewhat detailed description of what other properties are at its boundaries.]
E. The Property was used for [describe all major previous uses and owners if possible, going back several decades, and including whatever activities may have caused the contamination].
F. The facilities, structures and other improvements currently located on the Property include the following: [describe].
Contamination of the Property
G. The location and horizontal and vertical extent of environmental contamination of the Property has been assessed in the following environmental investigation reports ("Reports"):
- [Name and date of report, name and address of consultant that prepared it]
- [Same for every report]
H. The Reports are incorporated herein by reference. They have been provided to the Department and are maintained as public documents by the Department in accordance with its standard document retention practices. Buyer accepts the Reports as a comprehensive evaluation of the environmental contamination on the Property.
I. The Reports contain the analytical results of soil samplings and groundwater investigation, including the installation, sampling and analysis for [name groups of compounds, e.g. metals, VOCS, PAHs, BTEX, etc.] in [number] on-site monitoring wells, the determination of the direction of groundwater flow and the sampling and analysis for [name groups of compounds] in the soil. [Summarize any other environmental investigation and assessment done.]
J. The Reports describe all contamination currently known by the parties to exist on the Property ("identified contamination"). The identified contamination is listed in the Tables attached hereto as Exhibit A [Tables, which may be extracted from an existing report or created for this purpose, should include the nature, levels and extent of the contamination, with its location described by reference to the Map], and the location of the identified contamination is shown on a Map attached hereto as Exhibit B. Exhibits A and B are incorporated herein by reference.
K. [Describe any notable discrete areas or contaminants of concern including where they are/were by reference to the Map in Exhibit B, and what was found there at what concentrations.]
The Proposed Sale
L. Seller intends to sell the Property to Buyer, who intends to buy the Property and [describe generally as much as we know about what the Buyer is going to do with the Property, e.g. "operate offices, warehousing and light manufacturing", "construct a truck depot and repair facility", etc.]
M. 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.
The Remediation Plan
N. Seller [or Buyer] intends to remediate the identified contamination. The proposed Remediation Plan ("Plan") is contained in the [give name of document submitted and name of consultant] submitted to the Department on [date]. The Plan proposes remediation of the Property to meet a [Site-Specific] [Statewide Health] [Background] Standard based on nonresidential use of the Property, as those terms are used in Act 2. The Plan is attached hereto as Exhibit C and is incorporated herein by reference. 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:
- Findings. Seller and Buyer agree that the findings in Paragraphs A through 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.
- Seller's Obligations. Seller shall
a. Attain and demonstrate compliance with the [Site-Specific] [Statewide Health] [Background] Standard in accordance with the Plan and Act 2, by [a very generous estimate of the likely date of completion of the remediation].
(1). Submit a Notice of Intent to Remediate and send the municipal and public notices of the NIR pursuant to Act 2 no later than (date).
(2) [Here, insert any intermediate deadlines, such as dates for submission of remedial investigation report, risk assessment report and cleanup plan if desired when remediating to a Site-Specific Standard.]
(3) 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 (date).
* * * *
OPTION for use when the remediation is being performed using the Corrective Action Process regulations under the Storage Tank Act, should contain subparagraphs to 2a which give the remediator deadlines for complying with the major steps required in those regulations.
* * * *
b. Notify the Department by telephone and in writing at least working days before beginning the remediation described in the Plan.
* * * *
OPTION:
c. Notify the Department by telephone and in writing at least working days before taking any of the following major steps in the Plan: [Insert whichever steps the ECP program would like to know about in advance, then renumber the following subparagraphs in 2.]
* * * *
d. [If a Site-Specific Standard, or a non-residential Statewide Health Standard, is to be achieved:] 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 [the following only if appropriate:] and (2) requiring the maintenance of any engineering controls on the Property, as covenants running with the land.
e. Record this CO&A and its Exhibits with the deed to the Property, in the Recorder of Deeds Office for [county in which the Property is located], and index the Deed, listing it under Seller as Grantor and Buyer as Grantee.
3. Buyer's Obligations. Buyer shall
a. [If achieving a Site-Specific Standard or a non-residential Statewide Health Standard:] Use the Property only for commercial or industrial activity, excluding schools, nursing homes and other residential-style facilities and recreational areas.
b. [If appropriate: Maintain any engineering controls on the Property.]
c. The agreements by Buyer in Paragraphs 3.a. and b. above are covenants running with the land and Buyer shall include these covenants in all deeds, leases and other instruments of conveyance of the Property.
d. [If meeting a Site-Specific Standard, or a Background Standard where the "background" is subsurface contamination which migrated onto the Property and remains there:
Avoid disturbing subsurface strata and soils 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 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 all subsurface strata and soils consistent with the Work Plan as approved by the Department.]
* * * *
OPTIONS to be used if ECP believes they are necessary:
e. Prepare, submit to the Department and implement a Health and Safety Plan for protecting construction workers and all persons employed and/or present at the Site from any contaminants that could be encountered in the course of on-site pre-construction and construction activities. (Specify here, if desired, the regulations to which the plan should conform.)
f. If Seller fails to complete the remediation by the date specified in Paragraph 2a above, Buyer shall submit to the Department a report evaluating the exposure risks created by the unfinished remediation and whether such risks are unacceptable to Buyer's employees and the public. If the Department determines that such risks are unacceptable, Buyer shall cease its activities at the Property until the exposure risks have been decreased to acceptable levels.
* * * *
g. 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 N above, and take steps to assure that an Act 2 standard continues to be met.
h. 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 2d and 3a and b above.
4. [Use Option I or Option 2 as appropriate:]
OPTION 1: Covenant Not To Sue. Provided Buyer complies with the obligations in Paragraph 3 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.
OPTION 2: Covenant Not to Sue. Provided that Seller complies with its obligations set forth in Paragraph 2 above, [continue with the entire Option 1 paragraph above].
5. Reservation of Rights. With respect to any contamination on the Property 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. The Seller and the Department will use their best efforts to minimize interference with Buyer's 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.
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.
* * * *
OPTION for use where hazardous substances and/or hazardous wastes remain on the property after remediation to a Site-Specific Standard:
10. 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, 35 P.S. Sect. 6020.101 et seq.
* * * *
11. Non-Release 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.
* * * *
OPTION for use where hazardous substances are present or[ the site before remediation:
13. Hazardous Sites Cleanup Act. Seller and Buyer agree that failure to comply with the provisions of Paragraph(s) 2 and 3 of this CO&A constitutes a failure to comply with an "enforcement action" as provided in Section 1301 of the Hazardous Sites Cleanup Act, the Act of October 18, 1988, P.L. 657, No. 1988-108, 35 P.S. Section 6020.1301.
* * * *
14. Liability of Parties. The 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 and 7 [and 10, if used] 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 the Seller. The Buyer shall be liable for violations of Paragraphs 3, 6, 7, and 8 [and 10, if used] 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 the Buyer.
15. Correspondence With Department. All correspondence with the Department concerning this CO&A shall be addressed to:
Environmental Cleanup Program Manager
Department of Environmental Protection
[Regional Office address]
16. Correspondence With Seller and Buyer. All correspondence with Seller concerning this CO&A shall be addressed to:
[Name or title, and address]
All correspondence with Buyer concerning this CO&A shall be addressed to:
[Name or title, and address]
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.
17. 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 force and effect between the parties.
18. 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.
19. 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.
20. 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.
21. Execution of Agreement. This agreement may be executed in counterparts.
22. 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.
23. Effective Date. This CO&A shall become effective upon execution provided that the Buyer buys the Property within days of execution of this CO&A.
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 the Seller and the Buyer certify under penalty of law, as provided by 18 Pa. C.S. Section 4904, that they are authorized to execute this CO&A on behalf of the Seller and the Buyer, respectively; that the Seller and the Buyer consent to the entry of this CO&A as a final Order of the Department; and that the Seller and the 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 Act, the Act of July 13, 1988, P.L. 530, No. 1988-94, 35 P.S. Sect. 7514; the Administrative Agency Law, 2 Pa. C.S. Sect. 103(a) and Chapters 5A and 7A thereof; or any other provision of law. (Signature by attorneys for Seller and Buyer certifies only that the agreement has been signed after consulting with counsel.)
FOR THE SELLER: FOR THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
ENVIRONMENTAL PROTECTION:
Name:
Title:
[Name]
Environmental Program Manager
Environmental Cleanup Program
Name:
Title:
[Name]
FOR THE BUYER: [Regional Counsel or
Assistant Counsel]
Name:
Title:
Name:
Title:
JURAT Page
COMMONWEALTH OF PENNSYLVANIA :
: SS.
COUNTY OF (COUNTY) :
On this day of 199_, before me, a Notary Public, the undersigned officer personally appeared, (Name), who acknowledged (him)(her)self to be the (Title) of (Company Name), a (corporation) (partnership), and that (s)he as such (Title), being authorized to do so, executed the Consent Order and Agreement for the purpose therein contained by signing the name of the (corporation) (partnership) by (him)(her)self as (Title).
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
[NOT AN OFFICIAL FORM]
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
In the Matter of :
: Remediation/Reuse of a
: Special Industrial Area Site
CONSENT ORDER AND AGREEMENT
This Consent Order and Agreement is entered into this ____ day of __________, 1999, by and between the Commonwealth of Pennsylvania, Department of Environmental Protection (hereinafter "Department"), and ______________________________ (hereinafter "__________").
Findings
The Department has found and determined the following findings.
A. The Department is the agency with the duty and authority to implement the Land Recycling and Environmental Remediation Standards Act, the act of May 19, 1995, P.L. 4, No. 2, 35 P.S. ' 6026.101 et seq. ("Land Recycling Act"). The Department is the agency with the duty and authority to administer and enforce the Solid Waste Management Act, the act of July 7, 1980, P.L. 380, No. 97 as amended, 35 P.S. ' 6018.101 et seq. (the "Solid Waste Management Act"); The Clean Streams Law, the act of June 22, 1937, P.L. 1987, No. 394, as amended, 35 P.S. ' 691.1 et seq. (the "Clean Streams Law "); the Storage Tank and Spill Prevention Act, the act of July 6, 1989, P.L. 169, No. 32 as amended, 35 P.S. ' 6021.101 et seq. (the "Storage Tank Act"); the Hazardous Sites Cleanup Act, the act of October 18, 1988, P.L. 756, No. 108, 35 P.S. ' 6020.101 et seq. ("HSCA"); and the rules and regulations promulgated thereunder.
B. __________ is a person who desires to undertake the reuse of a special industrial area site pursuant to the provisions of the Land Recycling Act. ___________ is a __________ corporation with an address of _________________________________.
C. This special industrial area site is called the ____________________ Site and is located at _____________________________________________ (hereinafter "Site"). The Site consists of a __________ square foot warehouse and other buildings located on a _____ acre parcel. The property appears to have been [site history]. Further detail regarding the history, use and ownership of the Site can be found in Sections _______________ of the attached Baseline Environmental Report ("Exhibit A"), which is incorporated into this Consent Order and Agreement by reference.
D. This Consent order and Agreement is the agreement required by Sections 305 and 502 of the Land Recycling Act between the Department and any person seeking a release of liability in connection with undertaking the reuse of a special industrial area site.
E. As of the date of this Consent Order and Agreement, __________ including its officers, directors, subsidiaries and affiliates, has not caused or contributed to contamination located on the Site.
F. As of the date of this Consent Order and Agreement, the Site is located in an Enterprise Zone designated as such by the Pennsylvania Department of Community and Economic Development or its successor agency in implementing the program.
G. On ____________, __________ submitted a Notice of Intent to Remediate (the "NIR") the Site to the Department.
H. On __________, __________ delivered a copy of this NIR to the __________ Township municipality.
I. On __________, __________ published a summary of the NIR in the ____________________. __________ provided proof of publication and notification to __________ Township to the Department on _______________. The public comment period ended _______________.
J. ___________ Township did not request to be involved in the development of the remediation and reuse plans for the Site.
K. __________ Township did not request that __________ develop and implement a public involvement program plan which met the requirements of section 304(o) of the Land Recycling Act.
L. On __________, __________ submitted and on __________, the Department approved the work plan required to be prepared for the Site by section 305(b) of the Land Recycling Act.
M. On __________, __________ submitted and on _______________, the Department approved the baseline environmental report required to be prepared for the Site by section 305(b) of the Land Recycling Act. This baseline environmental report is attached hereto and incorporated by reference and deemed to be a part hereof as Exhibit A.
N. The intended purpose of the Site is use, after upgrade and renovation, as a regional distribution facility for commercial businesses and industrial facilities in the mid-Atlantic states. These activities will include warehouse storage and loading and unloading of truck and railcars. The facility will eventually employ approximately _____ people in administrative, managerial, clerical and material handling jobs. The Site will not be used for any residential purpose and the groundwater beneath the Site will not be used for drinking or any other purpose. ("Intended Purpose").
O. Pursuant to section 502 of the Land Recycling Act, the cleanup liability for __________ includes the remediation of immediate, direct or imminent threats to public health or the environment which would prevent the Site from being occupied for its Intended Purpose (hereinafter referred to as "Remedial Obligations").
P. __________'s Remedial Obligations include the following, more fully described in Exhibit B:
Q. Pursuant to Section 502, the cleanup liability for __________ does not include Identified Contamination located on the Site that is not an immediate, direct or imminent threat to public health or the environment which would prevent the Site from being occupied for its Intended Purpose.
R. Identified Contamination includes the following and is more fully described in Exhibit A:
The parties desire to enter into an agreement pursuant to section 305 of the Land Recycling Act to outline the cleanup liability for the Site and to satisfy the requirements of sections 305 and 502 of the Land Recycling Act.
Order
After full and complete negotiation of all matters set forth in this Consent Order and Agreement and upon mutual (exchange of covenants contained herein, the parties intending to be legally bound, it is hereby ORDERED by the Department and AGREED to by __________ as follows:
1. This Consent Order and Agreement is an Order of the Department authorized and issued pursuant to:
a. Section 5 of the Clean Streams Law, 35 P.S. ' 691.5;
b. Section 602 of the Solid Waste Management Act, 35 P.S. ' 6018.602;
c. Section 1309 of the Storage Tank Act, 35 P.S. ' 6021.1309;
d. Sections 305 and 502 of the Land Recycling Act, 35 P.S. ' 6026.305 and 6026.502;
and Section 1917-A of the Administrative Code, supra.
2. Cleanup Liability of .
a.__________ shall remediate all immediate, direct or imminent threats to public health or the environment presently located on the Site which would prevent the Site from being occupied for its Intended Purpose. Based on the results of Baseline Study, __________'s obligations are enumerated in paragraph ___ above and are more fully described in Exhibit B.
b. __________ shall not be responsible for the remediation of Identified Contamination described in paragraph ___ of the findings and more fully described in Exhibit A so long as the Identified Contamination does not prevent the occupation of the property for its Intended Purpose.
c. Nothing in this agreement relieves __________ from any cleanup liability for 1) contamination caused by __________ on the Site on or after the date of this Consent Order and Agreement: or 2) contamination presently located on the Site the nature, concentration and location of which is not identified in Exhibit A.
d. If __________ complies with the terms and conditions of this Consent Order and Agreement, __________ shall have the liability protection established by Section 502(a) of the Land Recycling Act.
e. __________ shall provide the Department with prior written notice of any change in the Intended Purpose of the Site from that described in paragraph ___ of the findings. __________ has a continuing obligation to remediate all immediate, direct or imminent threats to public health or the environment located on the site that would prevent the site from being occupied for its Intended Purpose. If __________ changes the Intended Purpose of the property from that set forth in paragraph ___, then __________ must remediate any contamination described in paragraph ___ which would prevent the occupation of the property for its new Intended Purpose.
f. The liability protection provided by this Consent Order and Agreement is subject to the reopeners set forth in Section 505 of the Land Recycling Act.
3. Notice of Commencement of Remediation. [Redeveloper] shall notify the Department in writing [ ] working days prior to commencing the remediation measures enumerated in paragraph 2 and more fully described in Exhibit A.
4. Site Access. __________ grants to the Department and those acting with the Department's approval the right to enter onto the Site at reasonable times and with reasonable notice to further investigate contamination at the site. In the event the Department elects to conduct remediation of Identified Contamination, __________ further grants to the Department and those acting with the Department's approval the right to enter onto the Site to conduct remediation upon reasonable notice, provided the Department and those acting with the Department's approval do not unreasonably disrupt __________'s use of the property and provided that those acting with the Department's approval Indemnify __________ from and against any damage or injury to persons or property resulting from their activities on the Site and otherwise agree to follow appropriate health and safety guidelines.
5. Notice of Completion of Remediation. [Redeveloper] shall notify the Department in writing when it has completed the remediation activities enumerated in paragraph 2 and more fully described in Exhibit A.
6. Day Verification Period. The Department shall have [ ] days after the receipt of the [Redeveloper]'s notice of completion of remediation to verify that the remediation activities enumerated in paragraph 2 and more fully described in Exhibit A have been successfully completed by [Redeveloper].
7. Transfer of Site. __________ shall provide the Department with prior written notice of any transfer of ownership of the Site including the identity of the purchaser and the purchaser's Intended Purpose for the Site. Prior to transfer, __________ shall give the purchaser a copy of this Consent Order and Agreement including a copy of Exhibit A. __________ shall satisfy any applicable deed acknowledgment requirements of the Solid Waste Management Act and the Hazardous Sites Cleanup Act.
8. Correspondence with Department. All correspondence with the Department concerning this Consent Order and Agreement shall be addressed to:
With a copy to :
The Department agrees to notify __________ whenever there is a change in the contact person's name or address.
9. Correspondence with . All correspondence with __________ concerning this Consent Order and Agreement shall be addressed to:
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
with a copy to:
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
__________ agrees to notify the Department whenever there is a change in the contact person's name or address.
10. Entire Agreement. This Consent Order and Agreement 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.
11. Modifications. No changes, additions, modifications, or amendments of this Consent Order and Agreement shall be effective unless they are set out in writing and signed by the parties hereto.
12. 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 Consent Order and Agreement.
13. Titles. A title used at the beginning of any paragraph of this Consent Order and Agreement is provided solely f or the purpose of identification and shall not be used to interpret that paragraph.
14. Resolution. [Intentionally deleted.]
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 __________ certify under penalty of law, as provided by 18 Pa.C.S. ' 4904., that they are authorized to execute this Consent Order and Agreement on behalf of __________; that __________ consents to the entry of this Consent Order and Agreement as an ORDER of the Department; and that __________ hereby knowingly waives its rights to appeal this Consent Order and Agreement, which rights may be available under Section 4 of the Environmental Hearing Board Act, the Act of July 13, 1988, P.L. 530, No. 1988-94,35 P.S. ' 7514; the Administrative Agency Law, 2 Pa.C.S. ' 103(a), and Chapters 5A and 7A; or any other provision of law.
| FOR _____________ COMPANY: ________________________________ | FOR THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION: Manager Environmental Cleanup Program |
________________________________ | Assistant Counsel, PADEP |