State of New Jersey
Department of Environmental Protection
Xxxxxxxxx Xxxx Xxxxxxx Xxxxxx X. Xxxxx, Xx.
Governor Commissioner
IN THE MATTER OF : REMEDIATION
Ajax Manufacturing Company : AGREEMENT
ISRA CASE # 97382 :
The following FINDINGS are made and AGREEMENT is issued pursuant to the
authority vested in the Commissioner of the New Jersey Department of
Environmental Protection (hereinafter "NJDEP"), N.J.S.A. 13:1D-1 et seq. and the
Industrial Site Recovery Act (ISRA), N.J.S.A. 13:1K-6 et seq. and duly delegated
to the Assistant Director within the Division of Responsible Party Site
Remediation pursuant to N.J.S.A. 13:1B-4. Any references below, to the
Environmental Cleanup Responsibility Act (ECRA) or its successor legislation,
the Industrial Site Recovery Act (ISRA) P.L. 1993 c.139 shall be construed as
ECRA, N.J.S.A. 13:1K-6 et seq. and N.J.A.C. 7:26B, as amended by ISRA.
FINDINGS
1. On December 6, 1997, Ajax Manufacturing Company submitted to NJDEP an
application for a Remediation Agreement. This application is incorporated
herein by reference and includes the following information:
A. Industrial Establishment
ISRA Case #: 97382 SIC #: 3715
Facility Name: Ajax Manufacturing Company
Facility Location: 000 Xxxxxx Xxxx
Xxxxxxxxxxxx, X.X. (Hillsborough facility)
Block: 143 Lot: 7
Owner/Operator: Xxxx Xxxxxxx
B. Transaction.
Seller: Standard Automotive Corporation
Buyer: Ajax Manufacturing Company
Description: Sale and redemption of 100% of shares of Ajax
Manufacturing Company to Standard Automotive Corporation.
2. The Transaction described in Paragraph 1.B above is the sale, transfer,
and/or closing of an Industrial Establishment as defined by ISRA. NJDEP and
Ajax Manufacturing Company expressly agree that the Transaction is subject
to ISRA. Ajax Manufacturing Company has requested that NJDEP prepare a
Remediation Agreement which, when effective, will allow the Transaction to
be consummated prior to the completion of all administrative requirements.
3. The Remediation Agreement specifies a time schedule for completion of ISRA
requirements by Ajax Manufacturing Company and provides for a remediation
funding source in a form and amount acceptable to NJDEP prior to
consummation of any transactions subject to ISRA. Failure to fully comply
with all the terms and conditions of the Remediation Agreement shall
subject Ajax Manufacturing Company to the full range of penalties and
remedies prescribed in ISRA, the implementing regulations, specifically
N.J.A.C. 7:26B-9.3 and the Remediation Agreement.
AGREEMENT
NOW, THEREFORE, IT IS AGREED THAT:
4. Ajax Manufacturing Company agrees to remediate the Hillsborough facility
and submit the following documents as established below.
A. Within one hundred and eighty (180) calendar days after receipt of the
General Information Notice (GIN) or such additional time as NJDEP
shall approve, in its sole discretion, Ajax Manufacturing Company
shall submit a Preliminary Assessment Report (PA Report), Site
Investigation Report (SI Report), and/or Remedial Investigation
Workplan (RI Workplan) as applicable, prepared in accordance with
N.J.A.C. 7:26E.
B. Within three hundred (300) calendar days after the effective date of
this Remediation Agreement or within one hundred and twenty (120)
calendar days of receipt of NJDEP's written approval of the RI
Workplan, or such additional time as NJDEP shall approve, in its sole
discretion, Ajax Manufacturing Company shall submit a Remedial
Investigation Report (RI Report) prepared pursuant to N.J.A.C. 7:26E.
C. Within four hundred and twenty (420) days after the effective date of
this Remediation Agreement or within one hundred and twenty (120)
calendar days after receipt of NJDEP's written approval of RI Report,
or such additional time as NJDEP shall approve, in its sole
discretion, Ajax Manufacturing Company shall submit a Remedial Action
Workplan prepared pursuant to N.J.A.C. 7:26E.
D. Ajax Manufacturing Company shall implement any NJDEP approved Remedial
Action Workplan in accordance with the approved time schedule or defer
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implementation of all or part of the Remedial Action Workplan subject
to NJDEP approval.
E. Should NJDEP determine that any submittal made under Paragraph 4 of
this Remediation Agreement is inadequate or incomplete, then NJDEP
shall provide Ajax Manufacturing Company with written notification of
the deficiency(ies), and Ajax Manufacturing Company shall revise and
resubmit the required information within a reasonable period of time
not to exceed thirty (30) calendar days from receipt of such
notification or such additional time NJDEP shall approve, in its sole
discretion.
5. Conditions for Remediation Funding Sources:
A. Ajax Manufacturing Company shall establish and maintain a remediation
funding source in a form acceptable to NJDEP in the amount of $25,000.
The remediation funding source must conform with the requirements of
N.J.S.A. 58:10B-1 et seq. and this Remediation Agreement. The
remediation funding source shall be submitted to NJDEP within fourteen
(14) calendar days from full execution of this Remediation Agreement.
B. Upon submission of the remediation funding source and annually
thereafter, Ajax Manufacturing Company shall submit a remediation
funding source surcharge payment in the amount equal to 1% of the
amount of the remediation funding source required by NJDEP to be
maintained. This surcharge in the amount of $250.00 should be made
payable to the "New Jersey Economic Development Authority
("NJEDA")-Hazardous Discharge Site Remediation Fund." The surcharge is
not imposed on the amount of the remediation funding source met by
self-guarantee or the amount of the remediation funding source met by
a loan or grant from the Hazardous Discharge-Site Remediation Fund.
C. Whenever the remediation cost increases, Ajax Manufacturing Company
shall cause the amount of the remediation funding source to be
increased to an amount at least equal to the new estimate within
thirty (30) calendar days.
D. Whenever the remediation cost decreases, Ajax Manufacturing Company
may submit a written request to NJDEP to decrease the amount in the
remediation funding source. If approved by NJDEP, the remediation
funding source may be decreased upon receipt of written approval by
NJDEP to be delivered to the person who established the remediation
funding source and to the person or institution providing the
remediation funding source.
E. In accordance with N.J.S.A. 58:10B-3, Ajax Manufacturing Company may
use the remediation funding source to pay for the actual cost of the
remediation at the Hillsborough facility.
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X. XXXXX shall return the remediation funding source established upon
Ajax Manufacturing Company's submission of a substitute remediation
funding source or upon NJDEP's approval of a Negative Declaration and
issuance of a no further action letter for the Hillsborough facility.
G. In the event that NJDEP determines that Ajax Manufacturing Company has
failed to perform any of its obligations under this Remediation
Agreement or ISRA, NJDEP may perform the remediation in place of Ajax
Manufacturing Company making disbursements from the remediation
funding source or may pursue any additional rights and remedies in
accordance with N.J.S.A. 58:10B-3(g). NJDEP shall notify Ajax
Manufacturing Company in writing of the obligation(s) with which it
has not complied. Nothing in this paragraph shall prevent NJDEP from
seeking civil or civil administrative penalties, costs, and damages or
any other legal or equitable relief against Ajax Manufacturing
Company.
6. Additional Conditions of Consent:
A. Ajax Manufacturing Company shall allow NJDEP access to the subject
Industrial Establishment pursuant to N.J.A.C. 7:26B-1.12 for the
purpose of undertaking all necessary monitoring and environmental
cleanup activities. Ajax Manufacturing Company has provided NJDEP with
appropriate documentation that Standard Automotive Corporation shall
allow the NJDEP access required herein.
B. Compliance with the terms of this Remediation Agreement shall not
excuse Ajax Manufacturing Company from obtaining and complying with
any applicable federal, state or local permits, statutes, regulations
and/or orders while carrying out the obligations imposed by ISRA
through this Remediation Agreement. The execution of this Remediation
Agreement shall not excuse Ajax Manufacturing Company from compliance
with all other applicable environmental permits, statutes, regulations
and orders and shall not preclude NJDEP from requiring that Ajax
Manufacturing Company obtain and comply with any permits, and/or
orders, issued by NJDEP under the authority of the Water Pollution
Control Act, N.J.S.A. 58:10A-1 et seq., the Solid Waste Management
Act, N.J.S.A. 13:1E-1 et seq., and the Spill Compensation and Control
Act N.J.S.A. 58:10-23.11 et seq., for the matters covered herein. The
terms and conditions of any such permit shall not be preempted by the
terms and conditions of this Remediation Agreement if the terms and
conditions of any such permit are more stringent than the terms and
conditions of this Remediation Agreement. Should any of these measures
be taken by Ajax Manufacturing Company during the remediation of any
ground water and surface water pollution result in a new or modified
discharge as defined in the New Jersey Pollutant Discharge Elimination
System ("NJPDES") regulations, N.J.A.C. 7:14A-1 et seq., then Ajax
Manufacturing
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Company shall obtain a NJPDES permit or permit modification from NJDEP
prior to commencement of said activity.
C. NJDEP reserves the right to stop any construction, improvement(s), or
change(s) at the Industrial Establishment(s) subject to this
Remediation Agreement, due to the presence of hazardous substances,
the disturbance of which, prior to implementation of NJDEP approved
Remedial Action Workplan, has the potential to cause harm to public
health, safety, and welfare as determined by the NJDEP.
X. Xx obligations imposed by this Remediation Agreement (other than by
Paragraph 6.E below) are intended to constitute a debt, claim, penalty
or other civil action which could be limited or discharged in a
bankruptcy proceeding. All obligations imposed by this Remediation
Agreement shall constitute continuing regulatory obligations imposed
pursuant to the police power of the State of New Jersey, intended to
protect the public health safety, and welfare.
E. The provisions of this Remediation Agreement shall be binding upon
Ajax Manufacturing Company and its successors in interest, assigns and
any trustee in bankruptcy or receiver appointed pursuant to a
proceeding in law or equity. Any officer or management official of
Ajax Manufacturing Company who knowingly directs or authorizes the
violation of any provision of ISRA or the Regulations shall be
personally liable for the penalty established pursuant to N.J.S.A.
13:1K- 13 and N.J.A.C. 7:26B-9.3.
F. Any signatory to this Remediation Agreement, who is executing this
Remediation Agreement on behalf of an entity other than that
individual, shall provide NJDEP appropriate documentary evidence as
specified in N.J.A.C. 7:26B-1.13 and N.J.A.C. 7:26B-7.5 authorizing
the signatory to bind the entity to the provisions of this Remediation
Agreement. This documentary evidence shall be submitted to NJDEP along
with a fully executed Remediation Agreement pursuant to Paragraph 11
of this Remediation Agreement.
G. Any signatory to this Remediation Agreement shall provide NJDEP at
least thirty (30) calendar days prior written notice of the
dissolution of its corporate identity or liquidation of its assets,
and shall provide immediate written notice to NJDEP of filing of a
petition for bankruptcy no later than the day after filing. Upon
receipt of notice of dissolution of corporate identity, liquidation of
assets or filing of a petition for bankruptcy, NJDEP may request and,
within fourteen (14) days of NJDEP's written request, Ajax
Manufacturing Company shall obtain and submit to NJDEP additional
remediation funding source pursuant to this Remediation Agreement.
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H. Unless otherwise instructed, any submission to be made to NJDEP in
accordance with this Remediation Agreement shall be directed to:
Xxxxx X. Xxxxxx, Assistant Director
Industrial Site Evaluation Element
Division of Responsible Party Site Remediation
P.O. Box 432
Trenton, NJ 08625-0432
7. Force Majeure
A. If any fire, flood, storm, riot, strike, or other circumstances
determined by NJDEP to be beyond the control of Ajax Manufacturing
Company occurs which causes or may cause delays in the achievement of
any deadline contained in this Remediation Agreement, Ajax
Manufacturing Company shall notify NJDEP in writing within ten (10)
calendar days of the delay or anticipated delay, as appropriate,
referencing this Paragraph and describing the anticipated length,
precise cause or causes, measures taken or to be taken, and the time
required to minimize the delay. If any delay or anticipated delay has
been or will be caused by fire, flood, storm, riot, strike or other
circumstances determined by NJDEP to be beyond the control of Ajax
Manufacturing Company, then the time for performance hereunder shall
be extended by NJDEP for a period no longer than the delay resulting
from such circumstances, provided that the NJDEP may grant additional
extensions for good cause. If the events causing such delay are not
found by NJDEP to be beyond the control of Ajax Manufacturing Company,
failure to comply with the provisions of the Remediation Agreement
shall constitute a breach of the Remediation Agreement's requirement.
The burden of proving that any delay is caused by circumstances beyond
Ajax Manufacturing Company's control and the length of such delay
attributable to those circumstances shall rest with Ajax Manufacturing
Company. Increases in the costs or expenses incurred in fulfilling the
requirements contained herein shall not be a basis for an extension of
time. Similarly, delay in completing an interim requirement shall not
automatically justify or excuse delay in the attainment of subsequent
requirements.
8. This Remediation Agreement shall be fully enforceable in the New Jersey
Superior Court having jurisdiction over the subject matter and signatory
parties upon the filing of a summary action for compliance pursuant to
ISRA. This Remediation Agreement may be enforced in the same manner as an
Administrative Order issued by NJDEP pursuant to other statutory authority
and shall not preclude NJDEP from taking whatever action it deems
appropriate to enforce the environmental protection laws of the State of
New Jersey. It is expressly recognized by NJDEP and Ajax Manufacturing
Company that nothing in this Remediation Agreement shall be construed as a
waiver by NJDEP of its rights with respect to enforcement of ISRA on bases
other than those set forth in the
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ISRA Program Requirements sections of this Remediation Agreement. Furthermore,
nothing in this Remediation Agreement shall constitute a waiver of any statutory
right of the NJDEP to require Ajax Manufacturing Company to implement additional
remedial measures should NJDEP determine that such measures are necessary to
protect the public health, safety and welfare.
9. Ajax Manufacturing Company agrees not to contest the authority or
jurisdiction of the Department to issue this Remediation. Ajax
Manufacturing Company further agrees not to contest the terms or conditions
of this Remediation Agreement except as to interpretation or application of
such terms and conditions in any action brought by the NJDEP to enforce the
provisions of this Remediation Agreement.
10. Except as otherwise set forth herein, by the execution of this Remediation
Agreement the Department does not release any person from any liabilities
or obligations such person may have pursuant to ISRA and the Regulations,
or any other applicable authority, nor does the NJDEP waive any of its'
rights or remedies pursuant thereto.
11. A. This Remediation Agreement shall be effective upon the execution of this
Remediation Agreement by NJDEP and Ajax Manufacturing Company. Ajax
Manufacturing Company shall return a fully executed Remediation Agreement
to NJDEP together with the signature authorization required by Paragraph 6
above within five (5) business days from the effective date.
B. This Remediation Agreement shall be null and void unless executed by
the Party(ies) within thirty (30) days of NJDEP signing.
C. Upon the effective date of this Remediation Agreement, Ajax
Manufacturing Company may complete the Transaction described in
Paragraph 1.B above subject to the conditions of this Remediation
Agreement.
D. Any issues which may arise in the future regarding this Remediation
Agreement will be interpreted under relevant provisions of ISRA.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION
Date: December 9, 1997 By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx, Assistant Director
Responsible Party Cleanup Element
Ajax Manufacturing Company
Date: December 10, 1997 By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: President
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