Notice of Lodging of Consent Decree Pursuant to the Comprehensive Environmental Response, Compensation and Liability Act

In accordance with 28 CFR 50.7 and section 122 of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. 9622, the Department of Justice gives notice that a proposed First Amendment to the Consent Decree, in United States v. The Upjohn Co. et al. v. ABF Freight System, Inc., et al. Civil No. 1:92-CV-659 (W.D. Mich.), was lodged with the United States District Court for the Western District of Michigan on September 10, 2004, pertaining to the West KL Avenue Landfill Superfund Site (the “Site”), located on West KL Avenue, Oshtemo Township, Kalamazoo County, Michigan. The proposed First Amendment to the Consent Decree amends a Consent Decree entered by the Court in 1992 that resolved the United States' civil claims under sections 106 and 107 of CERCLA, 42 U.S.C. 9606 and 9607, against Pharmacia Corp., successor to The Upjohn Company; Kalamazoo County; Charter Township of Oshtemo; the City of Kalmazoo (collectively, the “Performing Settling Defendants”); and 219 additional Third-Party Defendant generators at the Site (all defendants, collectively, the “Settling Defendants”).

Under the proposed First Amendment to the Consent Decree, the Performing Settling Defendants are obligated to implement a Record of Decision (“ROD”) Amendment, issued by the U.S. Environmental Protection Agency (“EPA”) on February 27, 2003, of a 1990 ROD for the Site. The ROD Amendment requires the establishment of a new municipal water service zone or alternative institutional controls around a newly discovered area of groundwater contamination and a buffer zone within a determined area extending beyond the contamination, in which every property in the zone will be hooked up to the City of Kalmazoo's municipal water system, and in which groundwater use will be restricted. The ROD Amendment revises the groundwater cleanup standards established in the original 1990 ROD, replacing the Michigan Act 307 type B standards with the current residential standards established under Part 201 of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended (formerly known as Michigan Act 307). The ROD Amendment also provides for the continuation of natural attenuation studies and calls for the preparation of the landfill cap design to continue while those studies are underway.

Under the proposed First Amendment to Consent Decree, Plaintiff and the Performing Settling Defendants agree to modify the terms of the Consent Decree, as provided by Paragraph 85 of the Consent Decree, to require the Performing Settling Defendants to implement the provisions of the February 27, 2003 ROD Amendment. The Settling Defendants other than the Performing Settling Defendants are not signatories to the proposed First Amendment to the Consent Decree. However, the First Amendment to the Consent Decree does not add to or change any of the settlement obligations of the Settling Defendants other than the Performing Settling Defendants, and none of the settling Third-Party Defendants will have any obligations to implement the provisions of the February 27, 2003 ROD Amendment.

To facilitate future modifications to the Consent Decree regarding implementation of the Work, if any, the First Amendment to the Consent Decree also effectively modifies the provisions of Paragraph 85 in the Consent Decree so that notification to the Settling Defendants other than the Performing Settling Defendants for any future material modifications to the Work under the Consent Decree will not be required.

The Department of Justice will receive, for a period of thirty (30) days from the date of this publication, comments relating to the proposed First Amendment to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, United States Department of Justice, PO Box 7611, Washington, DC 20044-7611, and should refer to United States v. The Upjohn Co. et. a., v. ABF Freight System, Inc., et al., Civil No. 1:92-CV-659 (W.D. Mich.), and DOJ Reference No. 90-11-2-561.

The proposed First Amendment to the Consent Decree may be examined at: (1) the Office of the United States Attorney for the Western District of Michigan, 330 Ionia Ave. NW., Suite 501, Grand Rapids, MI 49503, (616-456-2404); and (2) the United States Environmental Protection Agency (Region 5), 77 West Jackson Blvd., Chicago, IL 60604-3507 (contact: Stuart Hersh (312-886-6235)).

During the public comment period, the proposed First Amendment to the Consent Decree may also be examined on the following U.S. Department of Justice Web site, http://usdoj.gov/enrd/open.html. A copy of the proposed First Amendment to the Consent Decree may also be obtained by mail from the Consent Decree Library, U.S. Department of Justice, PO Box 7611, Washington, DC 20044-7611 or by faxing or e-mailing a request to Tonia Fleetwood (tonia.fleetwood@usdoj.gov), fax no (202) 514-0097, phone confirmation no. (202) 514-1547. In requesting a copy, please refer to the referenced case and DOJ Reference Number and enclose a check in the amount of $2.50 for the First Amendment to the Consent Decree only (10 pages, at 25 cents per page reproduction costs), or $13.25 for the First Amendment to the Consent Decree and all appendices (53 pages), made payable to the Consent Decree Library.