205-18 Exhibit to Resolution Authorizing Administrative Consent Order.pdf

determine Respondent’s compliance with the requirements of this ACO and the applicability of stipulated penalties and any other remedies available to the Department. 10. Unless otherwise directed in writing by the Department, Respondent shall submit two (2) copies of all documents required by this ACO to the individual identified below, who shall be the Department’s contact for all matters concerning this ACO:: Department of Environmental Protection Bureau of Solid Waste Compliance and Enforcement 9 Ewing Street, Mail Code 09-01 P.O. Box 420 Trenton NJ 08625-0420 Attention: Supervisor, Northern Region E. STIPULATED PENALTIES 11. Respondent shall pay stipulated penalties to the Department, as set forth below, for failure to comply with the provisions of this ACO, unless the Department has notified Respondent in writing that a stipulated penalty will not be assessed for violations of the compliance schedule pursuant to the force majeure provisions of this ACO. Calendar Days After Due Date Per Calendar Day 1–7 $100 8 – 14 $200 15 – over $500 12. Within 45 calendar days after Respondent’s receipt of a written demand from the Department for stipulated penalties, Respondent shall submit payment to the Department as outlined therein. 13. If Respondent fails to pay stipulated penalties pursuant to the preceding paragraphs, the Department may take action to collect same, including, but not limited to, instituting civil proceedings to collect such penalties pursuant to R. 4:67 and R. 4:70, or assess civil administrative penalties for violations of this ACO. 14. The payment of stipulated penalties does not alter Respondent’s responsibility to complete all requirements of this ACO. F. FORCE MAJEURE 15. If any event occurs which is beyond the control of Respondent and which Respondent believes will or may cause delay in the achievement of the compliance schedule provisions of this ACO, Respondent shall notify the Department

ond the control of Respondent and which Respondent believes will or may cause delay in the achievement of the compliance schedule provisions of this ACO, Respondent shall notify the Department in writing within 7 calendar days of becoming aware of the delay or anticipated delay, as appropriate. In the notification, Respondent shall reference

this paragraph, describe the anticipated length of the delay, the precise cause or causes of the delay, and any measures taken or to be taken to minimize the delay. Respondent shall take all necessary action to prevent or minimize any such delay. 16. The Department may adjust the deadlines in the compliance schedule of this ACO for a period no longer than the delay if the Department finds that: i. Respondent has complied with the notice requirements of the above paragraph; ii. Any delay or anticipated delay has been or will be caused by fire, flood, riot, strike, or other circumstances beyond the control of Respondent, and; iii. Respondent has taken all reasonable actions to prevent or minimize the delay. 17. If the Department denies Respondent’s force majeure request, Respondent may be subject to stipulated penalties. The burden of proving that any delay is caused by circumstances beyond the control of Respondent, and the length of any such delay attributable to those circumstances, shall rest with Respondent. Increases in the cost or expenses incurred by Respondent in fulfilling the requirements of this ACO shall not be a basis for an extension of time. Delay in an interim requirement shall not automatically justify or excuse delay in the attainment of subsequent requirements. Contractor's breach shall not automatically constitute force majeure. G. RESERVATION OF RIGHTS 18. The Department reserves the right to unilaterally terminate this ACO in the event Respondent violates any term. However, before the Department terminates this ACO pursuant to this paragraph, the Department will notify Respondent in writing of their obligations, and Respondent shall have reasonable time under the circumstances, not to exceed thirty (30) calendar days, to perform said obligations. 19. The Department reserves the right to seek reimbursement for past costs incurred in the oversight of this ACO. 20. This ACO shall not be construed to affect or waive claims of federal or state natural resources trustees against any party for damages or injury to natural resources. 21. The Department reserves the right to require Respondent to take any and all additional measures should the Department determine that such measures are necessary to protect human health

s. 21. The Department reserves the right to require Respondent to take any and all additional measures should the Department determine that such measures are necessary to protect human health and/or the environment. Nothing in this ACO constitutes a waiver of any statutory right or enforcement powers of the Department to require Respondent to undertake such additional measures should the Department determine that they are necessary. H. GENERAL PROVISIONS 22. Nothing contained in this ACO restricts the ability of the Department to raise the above Findings in any other proceeding, specifically including, but not limited to, proceedings pursuant to N.J.S.A. 13:1E-126 et seq., (commonly referred to as A-901).

23. This ACO shall be binding on Respondent, their respective agents, successors, assigns, and any trustee in bankruptcy or receiver appointed pursuant to a proceeding in law or equity. 24. This ACO shall be fully enforceable as a final Administrative Order in the New Jersey Superior Court. 25. Respondent agrees not to contest the terms or conditions of this ACO except that Respondent may contest the Department's interpretation or application of such terms or conditions in any action brought by the Department to enforce this ACO's provisions. 26. This ACO shall not relieve Respondent from obtaining and complying with all applicable federal, state and local permits as well as all applicable statutes, codes, rule, regulations and orders, including but not limited to the statutes and regulations cited herein. 27. Nothing in this ACO shall preclude the Department from taking immediate action or seeking injunctive relief to protect the public health, safety, welfare and/or environment. 28. No modification or waiver of this ACO shall be valid except by written amendment duly executed by Respondent and the Department or by the Department’s written modification pursuant to the force majeure provisions herein. 29. Unless otherwise specifically provided herein, Respondent shall submit all documents required by this ACO, except penalty payments, to the Department by certified mail, return receipt requested or by hand delivery with an acknowledgment of receipt form for the Department’s signature to: Department of Environmental Protection Bureau of Solid Waste Compliance and Enforcement 9 Ewing Street, Mail Code 09-01 P.O. Box 420 Trenton NJ 08625-0420 Attention: Supervisor, Northern Region The date the Department receives the certified mail or executes the acknowledgment will be the date the Department uses to determine Respondent’s compliance with this ACO. 30. Respondent shall not construe any unwritten or informal advice, guidance, suggestions, or comments by the Department, or by persons acting on behalf of the Department, as relieving Respondent of their obligations under applicable Department permit(s) and

, guidance, suggestions, or comments by the Department, or by persons acting on behalf of the Department, as relieving Respondent of their obligations under applicable Department permit(s) and approvals, this ACO, and or any applicable statutes or regulations promulgated thereunder. 31. In addition to the Department’s statutory and regulatory rights to enter and inspect, Respondent shall allow the Department and its authorized representatives access to the site at

all times for the purpose of determining compliance with this ACO. 32. Nothing in this ACO shall preclude the Department from taking enforcement action against Respondent for matters not set forth in the findings of this ACO. 33. No obligations or penalties imposed by this ACO are intended to constitute debt(s) which may be limited or discharged in a bankruptcy proceeding. All obligations and penalties are imposed pursuant to the police powers of the State of New Jersey for the enforcement of the law and the protection of public health, safety, welfare and the environment. 34. Respondent shall give written notice of this ACO to any successor in interest thirty (30) calendar days prior to transfer of ownership or control of the Former Selecto Flash Property which is the subject of this ACO and shall simultaneously notify the Department that such notice has been given. This requirement shall be in addition to any other statutory or regulatory requirements arising from the transfer of ownership or control of the Former Selecto Flash Property. In addition, the parties agree that any contract, lease, deed or any other agreement that Respondent enters into to convey any permit, approval, property, or operational control of same that is the subject of this ACO shall include a provision which states that the successor, assignee, tenant or purchaser has agreed to assume the obligations imposed by this ACO. 35. The Department reserves all statutory and common law rights to require Respondent to take additional action(s) if the Department determines that such actions are necessary to protect public health, safety, welfare and the environment. Nothing in this ACO shall constitute a waiver of any statutory or common law right of the Department to require such additional measures should the Department determine that such measures are necessary. 36. This ACO shall be governed and interpreted under the laws of the State of New Jersey. 37. If any provision of this ACO is found invalid or unenforceable, the remainder of this ACO shall not be affected thereby and each provision shall be valid and enforced to the fullest extent permitted by law. The Department does, however, retain the right to terminate the remainder of this ACO if, after such finding, it determines that the remaining ACO

orced to the fullest extent permitted by law. The Department does, however, retain the right to terminate the remainder of this ACO if, after such finding, it determines that the remaining ACO does not serve the purpose for which it was intended. 38. This ACO represents the complete and integrated agreement of, and shall be binding upon, and/or inure to the benefit of, the State of New Jersey, the Department, and their divisions, agencies, and respective successors, and Respondent and their respective responsible corporate officials, agents, successors, assignees, and any trustee in bankruptcy or receiver appointed pursuant to a proceeding in law or equity. 39. The Department reserves the right to unilaterally terminate this ACO in the event Respondent violates its terms and to take any additional enforcement action it deems necessary. 40. This ACO shall terminate upon receipt by Respondent of written notice from the Department that all the requirements of this ACO have been satisfied.

41. Respondent hereby agrees to comply with this ACO, which shall be fully enforceable as a final agency order in the Superior Court of New Jersey, including under N.J. Court Rules 4:67 and 4:70. Respondent agrees not to contest the terms or conditions of this Settlement Agreement in any action brought by the Department to enforce its provisions. 42. This ACO shall become effective upon the execution hereof by all parties, subject to completion of any required public participation process. 43. The below-named warrant that they are authorized to act as Signatories in this ACO, and bind themselves, their successors, assignees, and/or trustees to comply with the terms and provisions of this ACO. DATED: _________________ BY: ____________________________________ NAME: Leonard Lepore TITLE: West Orange Township Engineer By this signature, I certify that I have full authority to execute this document on behalf of the Township of West Orange (Respondent to this ACO) NEW JERSEY DEPT. OF ENVIRONMENTAL PROTECTION DATED: _________________ BY: ____________________________________ NAME:___________________________________ TITLE:___________________________________ By this signature, I certify that I have full authority to execute this document on behalf of NJDEP.

ATTACHMENT 1 Site Map Depicting Location of The Subject Material