ATTACHMENT 1

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*STATE OF MINNESOTAPOLLUTION CONTROL AGENCYIn the Natter of: The FHC CorporationFrldey, Minnesota

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Proceedings UnderSectlois 17 RESPONSE ORDERand 18 of the Minnesota BY CONSENTEnvironmental Responseand Liability Act,Minn. Stat. Ch. 115B

Based on the Information available to the parties on the effective date of

this Response Order By Consent and without trial or adjudication of any Issues

of fact or law, the parties hereto agree and it is hereby ordered as follows:

I.

Jurisdiction

This RESPONSE ORDER BY CONSENT (Order) is issued pursuant to the authority

vested in the Minnesota Pollution Control Agency (MPCA) by the Environmental

Response and Liability Act of 1983 (ERLA), Minn. Stat. Chapter 115B, and by

Minn. Stat. Chapters 115 and 116.

On the basis of the results of the testing and analysis described In the*

Statement of Facts, infra, and the MPCA files and records, the MPCA has

determined that: (1) the property described as the "FMC Site," located in

Fridley, Minnesota constitutes a facility within the meaning of Minn. Stat. §

115B.02, Subd. 5; (2) hazardous substances within the meaning of Minn. Stat. 5

115B.02, Subd. 8. have been disposed of at the FMC Site; (3) there have been

releases and there continue to be threatened releases of hazardous substances,

within the meaning of Minn. Stat. § 115B.02, Subd. 15. at the FMC Site; (4)

with respect to those releases FMC Corp. (FMC) is a responsible person within

EPA Region 5 Records Ctr.

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the Mining of Minn. Stat. S115B.03; (5) the actions to be taken pursuant to

tWs Order are reasonable and necessary to further protect the public health or

welfare or the environment; (6) a reasonable time for beginning and completing

the actions retired by this Order has been provided for; and (7) FMC has agreed

to undertake the actions specified in this Order.

In sibling tWs Order, FMC Is settling a disputed matter between the MPCA

and FMC. FMC does not admit, and retains the right to contest 1n any

proceeding, other than a proceeding to Implement or enforce this Order, the

validity of any of the factual or legal determinations made herein by the MPCA;

provided however, that FMC specifically retains the right to challenge under

Part VII of this Order whether MPCA modifications and orders Issued under this

Order are reasonable and necessary to protect the public health or welfare or

the environment and to challenge under Part VII of this Order the refusal of

the MPCA Board or MPCA Director to grant an extension to a schedule requested by

FMC. FMC specifically agrees to undertake all actions required of 1t by the

terms and conditions of this Order within the timeframes specified herein.

II .

Parties

This Order shall apply to and/be binding upon the following parties:

1. The FMC Corporation; and

2. The Minnesota Pollut1 on Control Agency.

I I I .

Statement of Facts

For purposes of this Order, the following constitutes a summary of the facts

upon which this Order is oased. None of the fac ts related herein shall be

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cons1d»red admissions by either party in any proceeding other than a proceeding

to ImpToMnt or enforce this order.

1. The FMC Site 1s located south of the manufacturing facility at 4800 East

River Road, Frldley, Minnesota. A map of the FMC Site Is attached as Attachment

1.

2. From 1941 to 1964 the Northern Ordnance subsidiary of the Northern Pump

Company operated a naval ordnance manufacturing facility. The facility

generated a variety of Industrial wastes including plating sludge, paints and

solvents. Beginning in the mid-1940's, a tract of land south of the facility

was used by Northern Ordnance for burning and disposal of industrial wastes. In

1964, FMC acquired the Northern Ordnance property including portions of the

disposal site. FMC and others used the Site for waste disposal until 1969 when

the Site was closed to disposal and a portion of the FMC Site was sold to the

Burlington Northern Railroad Company.

3. In November 1980 the MPCA staff was informed through a "hotline"

complaint that solvents were disposed at the Site. At the request of the MPCA

staff, FMC began an investigation of the Site in December, 1980.

4. On June 8, 1983, FMC, the U.S. Environmental Protection Agency (EPA) and

MPCA executed an Adninistrative Order and Interim Response Order By Consent

(Order).

The Order required that FMC:

a. remove soil from the FMC disposal site and place the son into a . •

contaminent facility located and constructed on FMC property;

b. excavate, repackage and dispose of drinmed waste at an appropriate

licensed disposal faci l i ty;

c. construct, coer3:e, maintain, rrom'tor, close and maintain post-closure

care of the containing: facility,

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4. conduct further remedial Investigation (RI) to define the extent

and magnitude of any ground water contamination resulting from the disposal

sfte; and

e. conduct a feasibility study (FS) of the response action alternatives

available for any ground water contamination identified in the RI.

The Order did not address response actions for contaminated ground water

• associated with the Site. The Issue of these response actions was explicitly

reservtd for future agreements.

5. As of the date of this Order FMC is in compliance with the requirements

of the June 8, 1983 Order.

6. On August 31, 1984 FMC submitted to the EPA and MPCA a report (the

ground water RI Final Report) entitled "Final Report, Phase I and II

Investigation Programs, Northern Ordnance Division, FMC Corporation,

Minneapolis, Minnesota, "S.S. Papadopolous, August, 1984.

The RI Final Report determined the following:

a. ground water in the alluvial and the Prairie dU Chi en aquifers is

contaminated by hazardous substances including Die hi oromethane; 1,1-Dichloroe thane;

l,2-D1chl oroethane; 1,1,1-Trich! oroethane; 1,1,2-Trichl oroethane;

l,l-D1chlorethylene; l,2-D1chl oroethyl ene; Trichl oroethyl ene; Tetrachl oroethyl ene;

Benzene; Toluene and Xyl ene (contaminated ground water) re leased from the FMC

Site;

b. contaminated ground water at the FMC Site is highly concentrated in

defined areas of the alluvial aquifers;

c. contaminated ground water migrates f

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i. contaminated ground water discharges to the Mississippi River and is

detectable at the Minneapolis drinking water intake among other places.

7. On January 21', 1985 FMC submitted a FS Report which FMC believes fulfills

the requirements of the June 8, 1983 Order, but which the MPCA still considers

to be a partial ground water FS. At the request of the MPCA, FMC submitted addi-

tional Information to the MPCA and EPA on May 6, 1985. The MPCA staff considers

the January 21, 1985 FS Report combined with the additional Information to

constitute a complete FS. The FS was conducted following procedures outlined in

the National Contingency Plan (NCP), 40 CFR $ 300.68 (f-1). The additional

Information submitted by FMC on May 6, 1985 contained information and analysis

regarding the following ground water response action alternatives:

a. excavation and disposal;

b. capping;

c. physical containment;

d. hydraulic containment;

e. ground water treatment;

f. alternative water source supply; and,

g. in-situ biological treatment;

8. The ground water FS submitted by FMC combined with the additional

information submitted to the EPA and MPCA contained sufficient information and

analysis to allow the MPCA Director to review and approve, disapprove or modify

FMC's recommended ground response action al ternative(s) in accordance with the

NCP.40 CFR 5 300.68 {j ). The MPCA Director approved an alternative Involving

contaminated ground water hydraulic containment and treatment. This alternative

was approved in accordance wi th the NCP to provide for implementation of

reasonable and necessary response actions to minimize the migration of

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contwfntted ground water from the FMC Site to ensure adequate protection of

the existing Minneapolis drinking water Intake and to ensure protection of the

alluvial aoyifers which will allow for future use of these resources upon

completion of the response actions.

9. The FMC Site 1s included on the October, 1985 M?CA Permanent List of

Priorities (PLOP) under the Class B (long-term monitoring/ ope ration and

Maintenance) and Class D (remedial Investigation/feasibility study) categories

with a Hazard Ranking System (HIS) score of 66.

10. Pursuant to Section 105 (8(6)) of the Comprehensive Environmental

Response. Compensation, and Liability Act of 1980 (CERCLA), the FMC Site is

Included on the National Priority List (f*>L).

11. In October, 1986, the MPCA Director executed an Enforcement Decision

Document (EDO) which delineates the MPCA staff evaluation and selection of the

FMC Site ground water response action described in Part V and Exhibit A to this

Order. The EDD was sent to the EPA.

IV.

.Definitions

Unless otherwise explicitly stated, the definitions provided in Minn. Stat.

Chapter 115B shall control the meaning of the terms used in this Order.

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V.

Response Auction Plan and Response Action I mpl an en tat ion

FMC shall Implement the Response Action Plan (RAP) and Response Action(s)

(RA) for contaminated ground water associated with the FMC Site in accordance

with the requirements and time schedules set forth in Exhibit A to this Order.

Exhibit A is appended to and made an integral and enforceable part of this

Order. The purpose of the RAP is to establish procedures and provide detailed

plans and specifications for Imp!mentation of the approved RA. The purpose for

implementing the approved RA is to mitigate the releases of contaminated ground

water in the alluvial aquifers at and around the FMC Site and endeavor to

achievt compliance'with drinking water criteria at existing and potential

receptors.

VI.

Review and Approval of Submittal s

The review of each submittal , document, report, or schedule (collectively

referred to hereafter as "Submittal") which is required to be submitted to and

reviewed by the MPCA Director shall be as fo l lows:

A. The MPCA Director shall review each Submittal made by FMC as

required by this Order within twenty-one (21) calendar days of receipt and

notify FMC in writing by the twenty-first ca lendar day, or the first work ing day

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thereafter, of hfs approval, disapproval, or modification of the Submlttal. In

the event the Submlttal requires approval and 1s approved, it shall become an

integral and enforceable part of this Order. In the event the Submlttal

requires approval and is disapproved in whole or part, the MPCA Director shall

notify FHC of the specific inadequacies in writing and shall state the necessary

amendments or revisions and the reasons therefore.

In the event that the Submlttal requires approval and is modified,

the MPCA Director shall notify FMC in writing of the specific modification(s)

made to the Submlttal and the reason(s) therefore.

B. Within twenty-one (21) calendar days of receipt of any notice of

disapproval or modification, or on the first working day thereafter, FMC shall

(1) submit revisions to correct inadequacies, (2) respond to the modi fication(s),

or (3) state in writing the reasons why the Submittal , as originally submitted,

shoul d be approved.

C. If, within fourteen (14) calendar days from the date of FMC's

submission under paragraph B, above, or the first working day thereafter, the

parties have not reconciled all issues with respect to the Submittal, the MPCA

Director shall make final modifications of the Submlttal as he deems necessary.

Final modifications made by the MPCA Director shall , subject to the provisions

of Part VII. shall become integral and enforceable parts of this Order.

D. All Submittals or modi fi cat ions thereto shall be technologically

feasible, reasonable and necessary, and in accordance with sound engineering

practi ces.

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|j. Tht MPCA and FMC shall provl de the opportunity to consul t with

each other djrlng the review of Sutnlttals or modifications.

F. In reviewing all SuInitials, making any final modifications or

Issuing any order pursuant to Part VII., the MPCA Director shall comply

with the requirements of M1nn. Stat. S 116.07, Subd. 6 (1984).

V I I .

Resolution of Disputes

If a dispute arises as to any part of this Order, Including any final modi-

flcatlffi or disapproval of Submlttals, the procedures of tWs Part shall apply.

In addition, djrlng the pendency of any dispute, FMC shall continue to Implement

those portions of the RAP and RA which the MPCA Director determines can be

reasonably Implemented pending final resolution of the 1ssue(s) 1n dispute.

A. FMC shall, within twenty-one days of the date of the MPCA action which

lead to the dispute, provide the MPCA Director with a written statement setting

forth the information FMC is relying upon to support its position.

B. Following receipt of FMC's statement under paragraph A, the MPCA

Director shall issue an order with respect to the issue(s) In dispute.

C. FMC shall, wl tWn fourteen (14) days of the date of Issuance of the MPCA

Director's order, notify the MPCA 'Director whether FMC intends to comply with

the MPCA Director's order. In the event that FMC does not notify the MPCA

Director within fourteen (14) days of the date of issuance of the MPCA

Director's order, FMC's failure shall be construed as a waiver of its right to

challenge the order. In such an event, the MPCA Director's order shall become

an integral and enforceable part of this Order.

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D. If, within fourteen (14) days of the date of Issuance of the MPCA

Director's order, FMC notifies the MPCA Director that fs does not intend to

comply with the MPCA Director's order, the MPCA shall, w l tWn fourty-five (45)

days of the date that FMC1 s notice was received, notify FMC as to whether the

MPCA Intends to do any of the work which FMC has notified the MPCA it will not

undertake during the pendency of the dispute or which is in dispute.

E. If the MPCA elects to do any work pending resolution of the dispute, the

MPCA may seek to recover any reasonable and necessary expenses incurred by the

MPCA as provided in Minn. Stat. §115.17, subd. 6 (1984). If the MPCA elects to

do any work, there shall be no preenforcement review of the dispute and review

of the issue(s) in dispute shall be limited to any cost recovery action which may

be brought by the MPCA under Minn. Stat. §1158.17, subd. 6 (1984).

F. If the MPCA elects to not do any work required by this Order during the

pendency of a dispute, FMC may bring an action challenging the MPCA Director's

order. Any such action must be brought within thirty (30) days of receiving

notice that the MPCA does not intend to do the work required by this Order.

Review of the MPCA Director's order shall be a de novo proceeding, although it

is understood that FMC shall not challenge the contractual nature of this Order.

If FMC does not file an action challenging the MPCA Director's order within the

allotted time period, FMC's failure shall be construed as a waiver of its right

to seek de novo court review and the MPCA Director's order shall become an

integral and enforceable part of this Order.

G. Nothing in this Part precludes FMC from bringing a dispute before the

MPCA Board pursuant to MPCA Procedural Rules, Minn. Rules Part 7000.0100 et sep.

However, FMC's exercise of this right does not waive or extend the time

requirements of this Part.

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V I I I .

Permits

A. nothing in thi^s Order is Intended to alter the terms and conditions of

any existing state or federal permits covering activities at FMC's Fridley plant.

B. The implementation of this Order may require the issuance of

governmental permits, authorizations or orders (hereinafter referred to as

"permit") by theMPCA, other State agencies, or other governmental bodies. This

Order Is based upon the expectation that the terms and conditions of any

necessary permits will be Issued consistent with the response actions required

by this Order.

C. FMC shall notify the MPCA Director of all non-MPCA permits which are

needed to implement the requirements of this Order as soon as FMC becomes aware

of the need for the permit. FMC shall provide the MPCA Director with a copy of

all such permit applications at the time that the application is submitted to

the governmental body issuing the permit.

D. If a permit is not issued, or is issued or is renewed in a manner

which is materially inconsistent with the requirements of the approved RAP or

RA, FMC may notify the MPCA Director of its intention to propose modifications

to the RAP or RA. Notification by FMC of its intention to propose modifications

shall be submitted within seven (7) calendar days of receipt by FMC of

notification that (1) a permit will not be issued; (2) a permit has been issued

or reissued in a manner which is materially inconsistent with the requirements '

of the approved RAP or RA; or (3) a final judicial determination with respect to

Issuance of a permit has been entered. Within thirty (30) days from the date it

submits its notice of intention, FMC shall submit to the MPCA Director its

proposed modi fi cati ors to the RAP or RA with an explanation of its reasons in

support thereof.

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E. The MPCA Director stall review and approve, disapprove or modify FMC's

proposed modlfl cations to the RAP or RA 1n accordance with Part VI. of thist

Order. If FMC submits proposed modifications prior to a final judicial

determination of any appeal taken on a permit needed to Implement this Order,

the MPCA Director may elect to delay review of the proposed modifications until

after such final Judicial determination 1s entered. If the MPCA Director elects

to delay review, FMC shall continue; Implementation of tWs Order as provided 1n

Paragraph F. of this Part.

F. During any judicial review of any permit needed to Implement this

Order or during review of any of FMC's proposed modifications as provided 1n

Paragraph E. above, and during any subsequent judicial proceedings taken 1n

accordance with the provisions of Part VII., FMC shall continue to Implement

those portions of this Order which the MPCA Director determines can be

reasonably Implemented pending final resolution of the permit 1ssue(s).

such action by FMC shall be considered 1n compliance with this Order and no

payments, penalties, or other enforcement action shall result from delays

attributable to FMC's exercise of Its rights under this Part.

IX.

Creation of Danger

In the event the MPCA Director or FMC determines that activities undertaken

In implementing or in non-compliance with this Order, or any other circumstances

or activities related to this Order, are creating an iimmn'nent and substantial

danger to the heal th or welfare of the peopl e on the FMC Site or in the

surrounding area or to the environment, the MPCA Director may order FMC to stop,

or FMC may stop, further implementation of this Order for such period of time as

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needed to abate the danger or may petition a court of competent jurisdiction for

such an Order. During any stoppage of work under this Part, FMC's obligation

with respect to the work ordered to be stopped shall be suspended and the time

periods for performance of that work, as well as the time period for any other

work dependent upon the work which was stopped, shall be extended pursuant to

Part XXI of tMs Order, for such period of time as the MPCA Director determines

is reasonable under the circumstances.

X.

Reporting

FMC shall submit to the MPCA Director written progress reports which

describe the actions which FMC has taken during the previous three months

(quarter) to implement the requirements of this Order. Progress reports shall

also describe the activities scheduled to be taken during the upcoming quarter.

Progress reports shall be submitted by the tenth day of each third month

following the effective date of this Order and quarterly thereafter. The

progress reports shall include a detailed statement of the manner and extent to

which the requirements and time schedules set out in the Exhibits to this Order

are being met. FMC shall Indicate and propose in the quarterly reports any

additional activities it believes to be necessary which are not included in the

approved RAP and shall describe the impact of the additional activities on the

other activities conducted pursuant to this Order. The MPCA Director may, in

his discretion, direct that reports be submitted at extended intervals or that

no further reports be submitted.

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XI.

Moti f1 cati on

Unless otherwise specified, progress reports and any other Submittal made by

FMC pursuant to tWs Order shall be sent by certified mail, return receipt

requested and addressed or hand delivered to:

Davl d Rlchfleld, Project ManagerDivision of Solid and Hazardous WasteMinnesota Pollution Control Agency520 Lafayette RoadSt. Paul, Minnesota 55155

Documents sent to FMC shall be addressed as follows unless FMC specifies

otherwise:Judy Longflel dSenior Environmental EngineerFMC Corporation2000 Market StreetPhiladelphia, PA 19103

X I I .

Project Managers

The MPCA and FMC shall each designate a Project Manager and Alternate

(hereinafter jointly referred to as Project Manager) for the purposes of

overseeing the implementation of this Order. The FMC Project Manager is Judy

Lcngfleld. Within ten (10) days of the effective date of this Order, FMC shall

notify the MPCA Director of the name and address of its Alternate. The MPCA

Project Manager 1s Oavi d Rlchflel d; the MPCA Alternate is Lonna BeiUe. Either

party may change its designated Project Manager by notifying the other party, in

writing, of the change. To the maximum extent possible, communi cat ions between

FMC and the MPCA concerning the terms and conditions of this Order shall be

directed through the Project Managers. Each Project Manager shall be

responsible for assuring that all communi cati on from the ether Project Manager

are appropriately disseminated and processed.

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The Project Managers shall have the authority to (1) agree to minor changes

1n the location of monitoring facilities (2) take samples or direct that samples

be taken; (3) direct that work stop for a period not to exceed seventy-two (72)

hours whenever a Project Manager determines that activities at the FMC Site may

create a danger to public health or welfare or the environment; (4) observe,

take photographs and make such other reports on the progress of the work as the

Project Manager deems appropriate; (5) review records, files and documents

relevant to this Order; and (6) make or authorize minor flel d modifications

In the RAP or RA or 1n techniques, procedures or design utilized 1n carrying out

this Order which are necessary to the completion of the project. Any fiel d

modifications shall be approved orally by both Project Managers. Within

seventy-two (72) hours following the modification, the Project Manager who

requested the modification shall prepare a memorandum detailing the modification

and the reasons therefor and shall provide or mail a copy of the memorandum to

the other Project Manager.

The MPCA and FMC Project Managers shall either be on-site or available on

call during all hours of work. The absence of any Project Manager from the FMC

Site shall not be cause for stoppage of work.

The MPCA Director may direct .1n writing that reports be submitted at

less frequent Intervals or that no further reports need be submitted.

XIII.

Sampling and Data/Document A vail ability

Upon request, the MPCA Director and FMC shall make available to each other

the results of sampling, tests or other data generated by either party, or on

their behalf, with respect to the implementation of this Order. At the request

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of elthtr party, the other party shall allow split or duplicate samples to be

taken fro« ar\y sampling or testing conducted during the Implementation of this

Order. The party talcing the samples shall endeavor to notify the other party's

Project Manager not less than five (5) days 1n advance of any sample collection.

If 1t 1s not possible to provide five (5) days prior notification, the party

taking s as pies shall notify the other party's Project Manager as soon as

possible after becoming aware that samples will be collected.

X I V .

Retention of Records

PMC shall retain in its possession all records and documents which relate in

any way to the presence of hazardous substances, at and around the FMC Site and

all final reports, field notes and data related to the Implementation of this

Order. FMC shall preserve these records, documents, reports and data for a

minimum of three years after the termination of this Order despite any document

retention policy to the contrary.

In accordance with the requirements of Minn. Stat. §1158.17 (1984), the

MPCA shall maintain its records related to the release or threatened release of

hazardous substances, at and around the FMC Site.

XV.

Access

FMC shall use reasonable efforts to obtain access to property not owned by

FMC upon which FMC, its contractors, and the MPCA will be required to enter or

conduct work in order to carry out the terms of this Order. FMC shall not be

required to pay unreasonable access fees as part of its ef for ts to obtain

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access. FNC shall provide the MPCA with copies of access agreements. If FMC 1s

unable to obtain reasonable access to such property, the MPCA agrees to exercise

Its authority under Mlim. Stat. § 1158.17, Subd. 4, to obtain access. If the

MPCA 1s required to exercise Its authority to obtain access. FMC shall submit to

the MPCA, prior to commencement of work at the property, a Hst of the persons

who will be required to enter the property. The persons on the 11st shall be

considered agents of the MPCA for the sole purpose of obtaining access under

Minn. Stat. § 115B.17, Subd. 4, to take Investigative and response actions

necessary to Implement this Order. It Is understood that FMC, its officers,

employees, agents and contractors are not considered the agents or employees of

the MPCA for any other purposes.

The MPCA and it's authorized representatives shall have authority to enter

the FMC Site at all reasonable times for the purposes of inspecting records,

operating logs, contracts and other documents related to the FMC Site and the

implementation of this Order; reviewing the progress of FMC in carrying out this

Order; conducting such tests as the MPCA Director or the MPCA Project Manager

deems necessary; and verifying the data submitted to the MPCA by FMC. FMC shall

honor all reasonable requests for access conditioned only upon presentation of

proper credential s.

XVI.

Hoi d Harm! ess Agreement

FMC agrees to indemnify and save and hold the MPCA, its agents and employees

harmless from any and all claims or causes of action arising from or on account

of acts or omissions of FMC its officers, employees, agents, or contractors in

implementing the act ivi t ies pursuant to this Order; provided, however, that FMC

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shall not indemnify the MPCA nor save nor hold Us employees and agents harmless>

fro» any claims or causes of action arising out of the acts or omissions of the

MPCA, or Its employees and agents. Nothing herein Is Intended as a waiver of

the governmental 1«nunit1es provided by the Tort Claims Act, M1nn. Stat. §§

3.736 et seq. (1984), the doctrine of sovereign 1itmun1ty, the doctrine of

discretionary immunity, or any other law, legislative or judicial, limiting

governmental liability.

The MPCA Director shall notify FMC of any claim or cause of action which may

t>« covered by this Part within five (5) working days of receipt by the MPCA

Director and allow FMC the opportunity to participate in the defense of the

action. FMC and tne MPCA agree to cooperate in the defense of any such claim or

action.

XVII.

Other Claims

Nothing herein is intended to release any claims, causes of action or

demands 1n law or equity against any person, firm, partnership or corporation

not a signatory to this Order for any liability 1t may have arising out of or

relating in any way to the generation, storage, treatment, handling,

transportation, disposal or release of any hazardous substance, pollutants or

contaminants at, to, or from the FMC Site.

Neither party shall 5e bel 6 as a party to any contract entered into by the

other party 1n carrying out the activities pursuant to this Order.

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XVIII.

» Other Appl 1 cabl e Laws

All actions required to be taken pursuant to this Order shall be undertaken

In accordance with the requirements of all applicable state and federal laws and

regulations. In the event there 1s a conflict 1n the application of federal or

state laws or regulations, the More stringent of the conflicting provisions

shall apply. FMC shall also comply with local ordinances and laws, but

determlmtlon of compliance or enforcement is a matter between FMC and the local

governmental entity asserting jurisdiction. However, MPCA reserves Its right to

Intervene 1n a matter between FMC and a local entity, 1f compliance with State

and federal laws and regulations constitutes a violation of an applicable local

ordinance or law.

XIX.

Confidential Information

FMC may assert a business confidentiality claim coven ng all or part of the

Information required by this Order pursuant to Minn. Stat. §§ 13.03, 13.37 and

116.075, except that analytical data associated with the release of hazardous

substances at and around the FMC Site shall not be claimed as confidential by

FMC. Information determined to be confidential by the MPCA Director shall be

afforded protection as provided in Minn. Stat. Chapter 13 and § 116.075. If no

such claim accompanies the information when it is submitted to the MPCA

Director, it may be made available to the public by the MPCA without further

notice to FMC.

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XX.

Recovery of Expenses

Wlthfn thirty (30)'days of the effectfve date of this Order, FMC shall pay

Into the Environmental Response, Compensation and Compliance Fund of the

Treasury of the State of Minnesota, by check payable to the Minnesota Pollution

Control Agency, the sun of Nine Thousand Five Hindred Seventy Seven dollars and

eighty nine cents, ($9,577.89) as reimbursement of those expenses recoverable

pursuant to applicable law which are associated with the HPCA activities related

to this Order. Payment of this sun shall be in full and complete satisfaction

of all past monetary claims of the MPCA for expenses associated with the release

or threatened release to ground water of hazardous substances, pollutants or

contaminants at and'around the FMC Site prior to the effective date of this

Order.

FMC also agrees to reimburse the Environmental Response, Compensation and

Compliance Fund of the Treasury of the State of Minnesota for those expenses

recoverable pursuant to applicable law associated with future MPCA activities

related to the implementation of the Order. Within thirty (30) days of the end

of each calendar year, the MPCA will submit to FMC an itemized statement of MPCA

expenses for the previous year. Within sixty (60) days, following receipt of

this statement, FMC shall pay the required sun into the Environmental Response,

Compensation and Compliance Fund of the Treasury of the State of Minnesota by

check payable to the Minnesota Pollution Control Agency. Any dispute regarding

the recoverabil ity of the MPCA's expenses shall be resolved in accordance with

the provisions of Part VII of this Order. The expenses to be reimbursed under

this Order shall cease to accrue on the date this Order terminates.

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XXI.

Extensions of Schedules

Extensions shall be granted 1f requests for extensions are submitted 1n a

tiaely fashion and good cause exists for granting the extension. All extensions

Bust be requested by FMC 1n writing. The request shall specify the reason(s)

why the extension 1s needed. Extensions shall only be granted for such period

of tlm as the MPCA Director or MPCA Board determines 1s reasonable under the

circumstances. A requested extension shall not be effective until approved by

the MPCA Director or MPCA Board.

The MPCA Director may extend the time schedules contained In this Order for .

a period not to exceed ninety (90) days except that if an extension Is needed asi

a result of (1) delays 1n the Issuance of a necessary permit which was applied

for 1n a timely manner; (2) judicial review of the issuance, non-Issuance or

re-issuance of a necessary permit; or, (3) judicial review under Part VII. of

this Order, the MPCA Director shall have the authority to extend the time sche-

djl es for a longer period. Extensions of greater than ninety (90) days

requested for reasons other than t^e three specified above may be granted underi

this Order, but only 1f approved by the MPCA Board.

The burden shall be on FMC to .demonstrate to the satisfaction of the MPCA

Director or MPCA Board that the request for the extension has been submitted in

a timely fashion and that good cause exists for granting the extension. Good

cause Includes, but is not limited to the following and extensions shall be

granted where FMC demonstrates that the reason the extension is needed is due

to:

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1. CircuMtances beyond the reasonable control of FMC, including delays

caused by the MPCA or delays attributable to compliance with State or Federal

laws or regulations as required by tart XVIII of this Order;

2. Stoppage of work under Part IX. of this Order which work stoppage was

not the result of any nonconpl 1 ance by FMC with this Order or the Exhibit

thereto;

3. Review resulting from the good faith Invocation by FMC of the

resolution of disputes provisions of Part VII., of this Order, which reviewi

results In delays 1n Implementation1 of this Order making 1t not reasonable for

FMC to Met the required schedules; and,

4. Delays which are directly attributable to any changes 1n permit terms

or conditions or refusal to Issue a permit needed to Implement the requirements

of this Order, as contemplated under Part VIII. of this Order if FMC filed a

timely application for the necessary permit.

5. Delays in obtaining access which are beyond the reasonable control of

FMC.i

FMC may challenge pursuant to Part VII of this Order the reasonableness

of a decision by the MPCA Director to disallow a request for an extension.

XXII.

Failure to Hake Timely Submittals

A. For each week that FMC fails to make a Submittal to the MPCA Director

1n accordance with the time schedules contained in the Exhibits to this Order or

any other time schedule approved or modified by the MPCA Director, FMC shall be

obligated to pay into the Environmental Response, Compensation and Compliance

Fund of the Treasury of the State of Minnesota the sum of Five Hundred dollars

($500).

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B. FMC shall not be liable fof payment under this Part if it has submitted

to the MPCA Director a timely request for an extension of schedules under

Part XXI. of this Ordtr and such request has been granted.

C. Upon determination by the MPCA Director that FMC has failed to make a

Submlttal referenced herein, written notice of the failure specifying the

provision of the Order which has not been compiled with shall be given to FMC.

FMC shall pay the required sum within thirty (30) days of submission of the

Subnlttal which was the subject of the notice. FMC retains the right to dispute

under Part VII. the factual basis for the MPCA Director's determination that a

Subralttal has not been made in a timely fashion. However, FMC waives any rights

it may have to challenge, on legal grounds, the requirement that it make

payments under this Part.

D. Payments required by this Part shall accrue from the date on which the

Submittal was to have been made or from the date a final determination regarding

the extension request has been made under Part VII, provided that FMC has

made a timely request under Part XXI and that FMC has made and continues to

Invoke in good faith the resolution of disputes provisions of Part VII.

Payments required by this Part shall cease to accrue when FMC delivers the

required Submittal to the MPCA Director.

E. Nothing in this Part shall be construed as prohibiting or in any *ay

limiting the ability of the MPCA to seek civil penalties avai lable under Minn.

Stat. Ch. 115B or any other law for any noncompl iance with this Order except for

noncompliance with the schedules for making submittals.

X X I I I .

Remedies of the Parties

The terms of this Drrier shall be legally enforceable by either party in a

court of appropriate jurisdiction.

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MotWng in tWs Order shall waive the MPCA's right to enforce the Order, or

to take any action authorized by Hfnn. Stat. Chapter 115B or by any other law

should FNC fall to maintain compliance with this Order.

XXIV.

Conveyance of Title

No conveyance of title, easement, or other interest in the FMC Site shall be

consuMated by FMC without provision for FMC or the purchaser to carry out the

terns of this Order. At least sixty (60) days prior to any conveyance or as

soon thereafter as legally possible, FMC shall notify the MPCA by registered

mail of FMC's Intent to convey any interest in land which comprises the FMC Site

and of the provision made for continued implementation of this Order.

XXV.

Covenant Not to Sue

In consideration for FMC's performance of the terms and conditions of this

Order, and based on the data reviewed by and information known to the parties on

the effective date of this Order, the MPCA agrees that, compliance with this

Order shall stand in lieu of any administrative, legal and equitable remedies

available to the MPCA regarding (1) the devel opnent of a Remedial Action Plan

(RAP) and implementation of the Remedial Action (RA) regarding the release or

threatened release of hazardous substances, pollutants, or contaminants at and

around the FMC Site; and (2) the reimbursement of the MPCA 's past and future

expenses associated with MPCA action related to this Order. Provided that

nothing in this Order shall preclude the MPCA from exercising any

administrative, legal , and equitable remedies ava i lab le to

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requlregents of tnts Order are Insufficient to mitigate the release or

threatened release of hazardous substances, pollutants or contaminants. The

H>CA agrees that the here availability of a technically more effective remedy

or of nor* sensitive detection technologies shall not be the sole basis for

requiring additional actions, and that material facts must be present to

Indicate a release or threatened release giving rise to threatened or actual

daaage or Injury to the environment, public health or welfare not evident on

the effective date of this Order before requiring additional action.

X X V I .

Successors

This Order shall be binding upon PMC, its successors and assigns, and upon

the MPCA, Its successors and assigns.

X X V I I .

Amendment Of Order

This Order may only be amended by written agreement between FHC and the MPCA.

X X V I I I .

Termination

The provisions of this Order shall be deemed satisfied and terminated upon

FMC's receipt of written notice from the MPCA Director that FMC has demonstrated

to the satisfaction of the MPCA that all the terms of the Order have been

completed. Upon request of FMC, the MPCA Director shaVl certify that this Order

has terminated if, in the judgment of the MPCA Director, FMC has compreted all

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actions retired pursuant to this Order. The MPCA agrees that upon termination

of this Order, the MPCA will take steps to:

1. Rfliove the FMC Site fro* the Minnesota Permanent List of Priorities, and

2. Reasonably assist FMC In seeking removal of the FMC Site from the

National Priorities List.

If the Director determines that all terms of the Order have not been

satisfactorily completed and therefore refuses to terminate the Order, the

provisions of Part VII. shall apply.

X X I X .

Effective Date

This Order is effective upon the date the last required signature is aff ixed

hereto.

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BY THEIR SIGNATURES HEREIN, THE IWDERSIGNED REPRESENT THAT

THEY HAVE AWHORITY TO BIND THE PARTIES THEY REPRESENT,

THEIR AGENTS, CONTRACTORS AND SUBSIDIARIES.

IT IS SO AGREED:

FMC Corporation Date

FMC Corporation Date

IT IS SO ORDERED:

rperson, Minnesota PpTlutton ControlAgency

Irector, Minnesota'PollutionControl Agency

Date

?tobt»r 28 . 1986Qcj-.nber 2R^_Effecti ve Date