&Wi«¥Wii«nti) Protection
Office of
Solid Waste »ra
WERA I DIRECTIVE NUMBER: 9835.3
TITLE: Model CERCLA §106 Consent Order for an RI/FS
APPROVAL DATE: January 31, 1985
EFFECTIVE DATE: January 31, 1985
ORIGINATING OFFICE: OWFE
Q FINAL
D DRAFT
LEVEL OF DRAFT
DA — Signed by AA or OAA
® 8 — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
SWER OSWER OSWER
DIRECTIVE DIRECTIVE Dl
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SERA
United States Environmental P'=t«cion Agency
- Washington, DC 20460
OSWER Directive Initiation Request
Nairn of Contact Person
Brad Wright
3. Title
2. Originator Information
1 Directive S
9835.3
! Mail Code
I WH-527
!0ffic«
j OWPE
Model CERCLA §106 Consent Order for an RI/FS
4. Summary of Directive (include oref statement of purcoseiThis memorandum is co dlStFlBULU a uiudel "gglUJtili1'
consent order for a privately conducted remedial investigation and feasibility study
(RI/FS) so that consistent and comprehensive agreements'can be achieved expeditiously.
An explanation of the situations where such an order could be located in the March 20,
1984 guidance document titled: " Participation of Potentially Responsbile Parties in
The Development of RI/FS under CERCLA.
I, Keywords
Consent Order. RI/FS
5a. Does This Directive Supersede Previous Directive^)?
No
b. Oo«* It Supplement Previous DirecttveW
No
Yes What directive (number, title)
Vet What directive (number. Me)
7. Draff Level
A-signedbyAA/DAA
B - signed &y Office Director
D«-
For Review A Comment
[ j D -
8. Document to b« distributed to States by Headquarters? I I Y«
No
Tnla Request M«
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ft/i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
'.V ASH ING TON O.C 20460
V
*'«: i«C"*
JN 31 1985
MEMORANDUM
SUBJECT: Model CERCLA §106 Consent Order for an RI/FS
FROM: Gene A. Lucero, Director
Office of Waste Programs
TO: Regional Administrators, Regions I-X
Directors, Waste Management Divisions
Regions I-X
Directors, Environmental Services Divisions
Regions I-X
Regional Counsels, Regions I-X
This memorandum is to distribute a model "generic"
consent order for a privately conducted retnedial investigation
and feasibility study (RI/FS) so that consistent and
comprehensive agreements can be achieved expeditiously. An
explanation of the situations where such an Border could be
used, including a description of necessary conditions, is
located in the March 20, 1984 guidance document titled:
"Participation of Potentially Responsible Parties in the
Development of Remedial Investigations and Feasibility Studies
under CERCLA".
This model order represents an ideal order which includes
almost all of the provisions which are desired by EPA and
should serve as a pattern for future orders. The model
order is designed for general purposes, however, and should
be viewed as a flexible document which each case management
team will modify on a case-by-case basis. In this regard,
some of the provisions of the order may not be appropriate
or necessary, while additional provisions may need to be
added for a certain situation.
Please note the additional provisions located separately
in the Appendix. These provisions are not necessarily desirable
from the Agency's standpoint, but may be appropriate in some
circumstances and are commonly requested by potentially
responsible parties. Model language is included in the Appendix
to assist the Regions in developing these provisions, where
they are appropriate.
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Th« nodal order was developed by the Work Group on
Compliance Monitoring and received extensive review at
Headquarters prior to distribution for comment throughout
the Agency on October 18, 1984. Comments in excess of thirty
pages were received and as a result* substantial modification
was made in the draft model order. The nature and volume of
the comments received indicate to me that a major effort was
expended in reviewing the draft model order for which I would
like to express my appreciation. Several comments prompted
some discussion, but did not result in any change to the draft
model order. If you have any questions regarding the model
order or comments which were not incorporated into the final
version. Brad Wright of my staff will be glad to discuss them
with you. Brad can be contacted at FTS 382-4837.
Attachment
cc: Work Group on Compliance Monitoring
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JAN
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION [*]
9835-3
IN THE MATTER OP:
[SITE NAME]
[COMPANY NAME
Address]
RESPONDENT.
Proceeding Under Section 106{a
of the Comprehensive Environ-
mental Response, Compensation,
and Liability Act of 1980
(42 U.S.C. S9606U) )
U.S. EPA Docket No.
ADMINISTRATIVE ORDER
ON CONSENT
I. JURISDICTION
This Consent Order is issued pursuant to the authority
vested in the President of the United States by Section 106(a)
of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), 42 U.S.C. $9606{a), and
delegated to the Administrator of the United States
Environmental Protection Agency (EPA) on August 14, 1981, by
Executive Order 12316, 46 Fed. Reg. 42237, and further
delegated to the Assistant Administrator for Solid Waste and
Emergency Response and the Regional Administrators by EPA
Delegation Nos. 14-14 and 14-14-A, the latter of which was
signed on April 16, 1984. [Note that further delegation to
the Division Director level is authorized.]
The Respondent agrees to undertake all actions required
by the terms and conditions of this Consent Order. The*
Respondent consents to and will not contest EPA jurisdiction
regarding this Consent Order.
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II. STATEMENT OF PURPOSE
9835.3
In entering into this Consent Order, the mutual objectives
of EPA and [Name of Company] (Company) are: (1) to determine
fully the nature and extent of the threat to.the public health
or welfare or the environment caused by the release or
threatened release of hazardous substances, pollutants or
contaminants from [the site] (Remedial Investigation), and
(2) to evaluate alternatives for the appropriate extent of
remedial action to prevent or mitigate the migration or the
release or threatened release of hazardous substances,
pollutants, or contaminants from (the site] (Feasibility
Study). The activities conducted pursuant to this Consent
Order are subject to approval by EPA and shall be consistent
with the National Contingency Plan, 40 CFR Part 300.68 (a)-{j)
(47 Federal Register 31180 (July 16, 1982), revised at 48
Federal Register 40658 (September 8, 1983)).
III. FINDINGS OF FACT
The following constitutes an outline of the facts upon
which this Consent Order is based:
A. [Identify the site with name, address, and description
including geography and brief site history (hereinafter
"Site")]
B. [Identify the respondent; i.e., name/business.]
C. [State a link between the respondent and the site;
e.g., owner, operator, transporter, generator.]
D. [State that the site is on the National Priorities List,
if applicable, and reference Section 105 of CERCLA]
E. [Identify hazardous substances which are associated with
the Respondent and the nature of the association.]
F. [State specific knowledge of the presence of hazardous
substances associated with the site, including sample
results, if available.]
G. [Describe the hazardous properties of the hazardous
substances associated with site.]
H. [Describe the geology and hydrology of the site and
surrounding area; including soil type, depth to grpund
water, ground water flow, surface water, etc.]
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9835.3
I. [Describe .the release process,, migration pathways, and
possible or known routes of exposure of the hazardous
substances.]
J. [Identify the populations at risk; both human and non-human.
K. (Describe the consequences of any release or threatened
release of hazardous substances from the site and include
any past incidents involving such a release of hazardous
substances.]
IV. CONCLUSIONS OF LAW
A. [State that the site is a facility as defined in Section
101(9) of CERCLA, 42 U.S.C. $9601(9).J
B. [State that the Respondent is a person as defined in
Section 101(21) of CERCLA, 42 U.S.C. §9601(21).]
C. Wastes and constituents thereof [at the Site, sent to
the Site, disposed of at the Site, and/or transported to
the Site] are "hazardous substances" as defined in
Section 101(14) of CERCLA, 42 U.S.C. §9601(14).
D. The [past, present, and/or potential] migration of
hazardous substances from the Site constitutes an actual
and/or threatened "release" as defined in Section 101(22)
Of CERCLA, 42 U.S.C. of §9601(22).
E. The Respondent is a responsible party pursuant to Section
107(a) of CERCLA, 42 U.S.C. §9607(a).
V. DETERMINATIONS
Based on the Findings of Fact and Conclusions of Law
set out above, EPA has determined that:
A. The actual and/or threatened release of hazardous substances
from the Site may present an imminent and substantial
endangerment to the public health or welfare or the
environment.
B. The actions required by this Consent Order are necessary to
protect the public health and welfare and the environment.
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9835.3
VI. WORK TO BE PERFORMED
All work performed pursuant to this Consent Order shall
be under the direction and supervision of a (qualified
[professional engineer, certified geologist, etc.] with
expertise in (hazardous waste site cleanup]. Prior to the
initiation of site work, the Respondent shall notify EPA in
writing regarding the name, title, and qualifications of
such [engineer, geologist, etc.] and of any contractors
and/or subcontractors to be used in carrying out the terms
of this Consent Order.
Based on the foregoing, it is hereby AGREED TO AND ORDERED
that the following work shall be performed: (Note that if an
EPA approved work plan exists; A, B, and C should be omitted.]
A. Within (unit of time; e.g. 60 calendar days] of the
effective date of this Consent Order, the Respondent shall
submit to EPA a plan for a complete Remedial Investigation
and Feasibility Study (RI/FS Work Plan). This plan shall
be developed in accordance with the EPA Remedial
Investigation and Feasibility Study guidance documents
entitled [Title] which [have been or will be provided
within calendar days] to the Respondent by EPA. As
described in this guidance, the RI/FS Work Plan must
include: (1) a sampling plan, (2) a health and safety plan
(3) a community relations plan, (4) a plan for satisfaction
of permitting requirements, (5) a description of chain of
custody procedures, and (6) a description of quality control
and quality assurance procedures. [Note that this assumes
the availability of final Remedial Investigation and
Feasibility Study guidance documents which are currently
undergoing revision. An outline of the elements to be
included in the RI/FS work plan, including deliverables,
is attached to this model Consent Order. These elements
are more completely described by the model statement of
work for an RI/FS which is part of the EPA Remedial
Investigation and Feasibility Study guidance documents.)
Th« RI/PS Work Plan shall be subject to review,
modification, and approval by EPA.
B. After receipt of the RI/FS Work Plan by EPA, EPA shall
notify the Respondent in writing of EPA's approval or
disapproval of the RI/FS Work Plan or any part thereof.
In the event of any disapproval, EPA shall specify in
writing both the deficiencies and any EPA recommended
modifications regarding the RI/FS Work Plan.
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9835.3
C. Within {unit of time; e.g. 30 calendar days] of the
receipt of EPA notification of RI/FS Work Plan disapproval,
the Respondent shall amend and submit to EPA a revised
RI/PS Work Plan. In the event of subsequent disapproval
of the RI/FS Work Plan, EPA retains the .right to conduct
a complete RI/FS pursuant to its authority under CERCLA.
D. The Respondent shall implement the tasks detailed in the
Remedial investigation and Feasibility Study Work Plan
(RI/FS Work Plan) which [has been or will be] approved
by EPA and [is or will be] attached to and incorporated
in this Consent Order (Attachment 1). This work shall.
be conducted in accordance with the EPA Remedial
Investigation and Feasibility Study guidance documents
and with the standards, specifications, and schedule
contained in the RI/FS Work Plan.
E. Within [a unit of time; e.g., seven calendar days] of
[the effective date of this Consent Order or approval of
the RI/FS Work Plan by EPA], the Respondent shall commenc^
[work; e.g., Task 1 of the RI/FS Work Plan.]
F. The Respondent shall provide [unit of time; e.g., monthly]
written progress reports to EPA according to the schedule
contained in the RI/FS Work Plan. At a minimum these
progress reports shall: (1) describe "he actions which
have been taken toward achieving compliance with this
Consent Order, (2) include all results of sampling and
tests and all other data received by the Respondent, and
(3) include all plans and procedures completed subsequent
to EPA approval of the RI/FS Work Plan, during the past
[unit of time; e.g., month] as well as such actions,
data, and plans which are scheduled for [the next unit
of time; e.g., month]. These reports are to be submitted
to EPA by [a certain time; e.g., the tenth day of each
month] following the effective date of this Consent Order.
G. The Respondent shall provide preliminary and final reports
to EPA according to the schedule contained in the RI/FS
Work Plan.
H. EPA Shall review the preliminary and final reports and
within [unit of time; e.g., 30 calendar days] of receipt
by EPA of such reports, EPA shall notify the Respondent
in writing of EPA's approval or disapproval of these
reports or any part thereof. In the event of any
disapproval, EPA shall specify in writing both the
deficiencies and the reasons for such disapproval...
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9835.3
I. Within [unit of time? e.g., 30 calendar daysj of receipt
of BPA notification of preliminary or final report
disapproval, the Respondent shall amend and submit to
EPA such revised reports. In the event of disapproval,
EPA retains the right to amend such reports, to perform
additional studies, and to conduct a complete Remedial
Investigation and Feasibility Study pursuant to its
authority under CERCLA.
J. Documents, including reports, approvals, disapprovals,
and other correspondence, to be submitted pursuant to
this Consent Order, shall be sent by [certified mail] to
the following addresses or to such other addresses as
the Respondent or EPA hereafter may designate in writing:
1) Documents to be submitted to EPA should be sent to
[indicate number of copies]:
[EPA Project Coordinator,
CERCLA Enforcement Branch] k
US EPA, Region [#J,
[Street, City, State, Zip Code].
2) Documents to be submitted to the Respondent should be
sent to [include number of copies]:
[Name, title,
Organization,
Street, City, State, Zip Code]
K. EPA may determine that tasks, including remedial
investigatory work and/or engineering evaluation, are
necessary as part of a Remedial Investigation and
Feasibility Study in addition to EPA-approved tasks and
deliverables, including reports, which have been completed
pursuant to this Consent Order. Subject to the "Dispute
Resolution" Section (Section XII) of this Consent Order,
the Respondent shall implement any additional tasks
which EPA determines are necessary as part of a Remedial
Investigation and Feasibility Study and which are in
addition to the tasks detailed in the RI/FS Work Plan.
Th« additional work shall be completed in accordance
with the standards, specifications, and schedule determine:
or approved by EPA. [If the Respondent does not agree
to this provision, Sections XIV, XV, and XXIII of this
Consent Order must specifically reserve EPA's right to
perform additional tasks and to seek reimbursement for
such tasks from the Respondent.]
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VII. DESIGNATED PROJECT COORDINATORS
On or before the effective date of this Consent Order,
EPA and the Respondent shall each designate -a Project
Coordinator. Each Project Coordinator shall be responsible
for overseeing the implementation of this Consent Order.
The EPA Project Coordinator will be EPA's designated
representative at the Site. To the maximum extent possible,
communications between the Respondent and EPA and all documents,
including reports, approvals, and other correspondence
concerning the activities performed pursuant to the terms
and conditions of this Consent Order, shall be directed
through the Project Coordinators.
EPA and the Respondent each have the right to change their
respective Project Coordinator. Such a change shall be
accomplished by notifying the other party in writing at least
[unit of time; e.g., five calendar days] prior to the change.
*
The EPA designated "On-Scene-Coordinator", who may be
the EPA Project Coordinator, shall have the authority vested
in the On-Scene-Coordinator by the National Contingency
Plan; 40 C.F.R. Part 300 et seq., 47 Federal Register 31180
July 16, 1982. This includes the authority to halt, conduct,
or direct any tasks required by this Consent Order and/or
any response actions or portions thereof when conditions
present an immediate risk to public health or welfare or the
environment.
The absence of the EPA Project Coordinator from the Site
shall not be cause for the stoppage of work.
VIII. QUALITY ASSURANCE
The Respondent shall use quality assurance, quality
control, and chain of custody procedures in accordance with
[reference document; e.g., EPA Region [#] Environmental
ServicM Division Standard Operating Procedures Manual]
throughout all sample collection and analysis activities.
This manual shall be provided to the Respondent by EPA. The
Respondent shall consult with EPA in planning for, and prior
to, all sampling and analysis as detailed in the RI/FS Work
Plan. In order to provide quality assurance and maintain
quality control regarding all samples collected pursuant to
this Consent Order, the Respondent shall:
A. Ensure that EPA personnel and/or EPA authorized
representatives are allowed access to the laboratory(s1
and personnel utilized by the Respondent for analyses.
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9835.3
B. Ensure that the laboratory(si utilized by the Respondent
for analyses perform such analyses according to EPA
methods or methods deemed satisfactory to EPA and submit
all protocols to be used for analyses to EPA at least
[unit of time; e.g., 14 calendar days] prior to [the
commencement of analysis].
C. Ensure that laboratory(s) utilized by the Respondent for
analyses participate in an EPA quality assurance/qual-ity
control program equivalent to that which is followed by EPA
and which is consistent with (reference document; e.g.,
EPA document QAMS-005/80], As part of such a program, and
upon request by EPA, such laboratory(s) shall perform
analyses of samples provided by EPA to demonstrate the
quality of each laboratory's analytical data. A maximum
annual number of [Number, recommended: four per analytical
combination; e.g., four aqueous samples by Gas
Chromatography/Mass Spectrometry, four soil/sediment
samples by Gas Chromatography/Mass Spectrometry, etc.] v
samples may be provided to each laboratory for analysis.
IX. SITE ACCESS
To the extent that the Site is presently owned by parties
other than those bound by this Consent Order, the Respondent
has obtained or will use their best efforts to obtain site
access agreements from the present owners within [unit or
time; e.g. 30 calendar days] of the effective date of this
Consent Order. Such agreements shall provide reasonable
access to EPA and/or its authorized representatives. . In the
event that site access agreements are not obtained within
the time referenced above, the Respondent shall notify EPA
regarding both the lack of, and efforts to obtain, such
agreements within [same unit of time as above] of the
effective date of this Consent Order.
X. SAMPLING, ACCESS, AND DATA/DOCUMENT AVAILABILITY
The Respondent shall make the results of all sampling
and/or testa or other data generated by the Respondent,
or on the Respondent's behalf, with respect to the
implementation of this Consent Order, available to EPA and
shall submit these results in [regular; e.g., monthly] progress
reports as described in Section VI of this Consent Order.
EPA will make available to the Respondent the results of
sampling and/or tests or other data similarly generated by
EPA.
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9835.3
At the request of EPA, the Respondent shall allow split
or duplicate* samples to be taken by EPA and/or its authorized
representatives, of any samples collected by the Respondent
pursuant to the implementation of this Consent Order. The
Respondent shall notify EPA not less than [unit of time; e.g.,
48 hours] in advance of any sample collection activity.
EPA and/or any EPA authorized representative shall at
least have the authority to enter and freely move about all
property at the Site at all reasonable times for the purposes
of, inter a1ia; inspecting records, operating logs, and
contracts related to the Site; reviewing the progress of the
Respondent in carrying out the terms of this Consent Order;
conducting such tests as EPA or the Project Coordinator deem
necessary; using a camera, sound recording, or other documentaVy
type equipment; and verifying the data submitted to EPA by
the Respondent. The Respondent shall permit such persons to
inspect and copy all records, files, photographs, documents,
and other writings, including all sampling and monitoring
data, in any way pertaining to work undertaken pursuant to v
this Consent Order. All parties with access to the Site
pursuant to this paragraph shall comply with all approved
health and safety plans.
The Respondent may assert a confidentiality claim, if
appropriate, covering part or all of the information requested
by this Consent Order pursuant to 40 C.F.R. $2.203(b). Such
an assertion shall be adequately substantiated when the
assertion is made. Analytical data shall not be claimed as
confidential by the Respondent. Information determined to
be confidential by EPA will be afforded the protection specified
in 40 C.P.R. Part 2, Subpart B. If no such claim accompanies
the information when it is submitted to EPA, it may be made
available to the public by EPA without further notice to the
Respondent.
XI. RECORD PRESERVATION
EPA and the Respondent agree that each shall preserve,
during the pendency of this Consent Order and for a minimum
of six (6) years after its termination, all records and
documents in their possession or in the possession of their
divisions, employees, agents, accountants, contractors, or
attorneys which relate in any way to the Site, despite any
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9835.3
document retention policy to the contrary. After this six
year period* the Respondent shall notify EPA within [unit of
time; e.g. 30 calendar days] prior to the destruction of any
such documents. Upon request by EPA, the Respondent shall
make available to EPA such records or copies of any such
records. Additionally, if EPA requests that some or all
documents be preserved for a longer period of time, the
Respondent shall comply with that request.
XII. DISPUTE RESOLUTION
If the Respondent objects to any EPA notice of disapproval
or decision made pursuant to this Consent Order, the Respondent
shall notify EPA in writing of its objections within fourteen
(14) days of receipt of the decision. EPA and the Respondent
then have an additional fourteen (14) days from the receipt by
EPA of the notification of objection to reach agreement. If
agreement cannot be reached on any issue within this fourteen
(14) day period, EPA shall provide a written statement of *
its decision to the Respondent.
XIII. DELAY IS PERFORMANCE/STIPULATED PENALTIES
[See the Appendix for additional "Force Majeure" language"]
For each week that the Respondent fails to submit a
report or document or otherwise fails to achieve the
requirements of this Consent Order, the Respondent shall pay
into the United States Treasury, the suns set forth below
as stipulated penalties. Checks should be addressed to
[address].
Stipulated penalties shall accrue in the amount of [List
failure category, time of delay, and penalty; e.g., $1,000.00
for the first week and 32,000.00 for each week thereafter for
failure to submit a deliverable or comply with a schedule
as required by this Consent Order.)
The stipulated penalties set forth in this Section do
not preclude EPA from electing to pursue any other remedies
or sanctions which may be available to EPA by reason of the
Respondent's failure to comply with any of the requirements
of this Consent Order. Such remedies and sanctions include
a suit for statutory penalties as authorized by Section 106
of CERCLA, a federally-funded response action, and a suit for
reimbursement of costs incurred by the United States and the
State of [State]. (Note: It is OSWER policy that statutory
penalties cannot be waived.]
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9835.3
XIV. RESERVATION OF RIGHTS
Notwithstanding compliance with the terms of this Consent
Order, including the completion of an EPA approved Remedial
Investigation and Feasibility Study, the Respondent is not
released from liability, if any, for any actions beyond the
terms of this Consent Order taken by EPA respecting the
Site. EPA reserves the right to take any enforcement action
pursuant to CERCLA and/or any available legal authority,
including the right to seek injunctive relief, monetary
penalties, and punitive damages for any violation of law or
this Consent Order.
[Except as expressly provided in the "Covenant Not to Sue"
Section (Section XXIII) of this Consent Order,] the Respondent,
and EPA expressly reserve all rights and defenses that they
may have, including EPA's right both to disapprove of work
performed by the Respondent and to request that the Respondent
perform tasks in addition to those detailed in the RI/FS \
Work Plan, as provided in this Consent Order. In the event
that the Respondent declines to perform any additional and/or
modified tasks, EPA will have the right to undertake any
remedial investigation and/or feasibility study work. In
addition, EPA reserves the right to undertake removal actions
and/or remedial actions at any time. In either event, EPA
reserves the right to seek reimbursement from the Respondent
thereafter for such costs incurred by the United States or
the State of [State].
XV. REIMBURSEMENT OF COSTS
At the end of each year, EPA shall submit to the
Respondents an accounting of all response and oversight
costs incurred by the U.S. Government with respect to this
Consent Order. The Respondent shall, within 30 calendar
days of receipt of that accounting, remit a check for the
amount of those costs made payable to the Hazardous Substance
Respons* Trust Fund. Checks should specifically reference
the identity of the site and be addressed to:
U.S. Environmental Protection Agency
Superfund Accounting
P.O. Box 371003M
Pittsburgh, PA 15251
Attention: [Collection Officer for Superfund]
[A copy of the transmittal letter should be sent to the
Project Coordinator.]
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_12_ 9835.3
EPA reserves the right to bring an action against the
Respondent pursuant to Section 107 of CERCLA for recovery of
all response and oversight costs incurred by the United States
and the State of [State] related to this Consent Order and
not reimbursed by the Respondents, as well as any other past
and future costs incurred by the United States and the State
of (State] in connection with response activities conducted
pursuant to CERCLA at this site.
XVI. OTHER CLAIMS
Nothing in this Consent Order shall constitute or be
construed as a release from any claim, cause of action or
demand in law or equity against any person, firm, partnership,
or corporation not a signatory to this Consent Order for
any liability it may have arising out of or relating in
any way to the generation, storage, treatment, handling,
transportation, release, or disposal of any hazardous i
substances, hazardous wastes, pollutants, or contaminants
found at, taken to, or taken from the Site.
This Consent Order does not constitute any decision on
preauthorization of funds under Section lll(a)(2) of CERCLA.
XVII. OTHER APPLICABLE LAWS
All actions required to be taken pursuant to this Consent
Order shall be undertaken in accordance with the requirements
of all applicable local, state, and federal laws and regulations
unless an exemption from such requirements is specifically
provided in this Consent Order.
XVIII. INDEMNIFICATION OF THE UNITED STATES GOVERNMENT
Th« Respondent agrees to indemnify and save and hold the
United States Government, its agencies, departments, agents,
and employees, harmless from any and all claims or causes of
action arising from or on account of acts or omissions of
the Respondent, its officers, employees, receivers, trustees,
agents, or assigns, in carrying out the activities pursuant
to this Consent Order. EPA is not a party in any contract
involving the Respondent at the Site.
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XIX. PUBLIC COMMENT
9835.3
Upon submittal to EPA of an approved Feasibility Study
Final Report, EPA shall make both the Remedial Investigation
Final Report and the Feasibility Study Final Report available
to the public for review and comment forf at a minimum, a
twenty-one (21) day period, pursuant to EPA's Community
Relations Policy. Following the public review and comment
period, EPA shall notify the Respondent which remedial action
alternative is approved for the site.
XX. EFFECTIVE DATE AND SUBSEQUENT MODIFICATION
In consideration of the communications between the
Respondent amd EPA prior to the issuance of this Consent
Order concerning its terms, the Respondent agrees that there
is no need for a settlement conference prior to the effective
date of this Consent Order. Therefore, the effective date
of this Consent Order shall be the date on which it is signed
by EPA.
This Consent Order may be amended by mutual agreement of
EPA and the Respondent. Such amendments shall be in writing
and shall have as the effective date, that late on which
such amendments are signed by EPA.
Any reports, plans, specifications, schedules, and
attachments required by this Consent Order are, upon
approval by EPA, incorporated into this Consent Order. Any
non-compliance with such EPA approved reports, plans,
specifications, schedules, and attachments shall be considered
a failure to achieve the requirements of this Consent Order "
and will subject the Respondent to the provisions included
in the "Delay in Performance/ Stipulated Penalties" Section
(Section XIII) of this Consent Order.
No informal advice, guidance, suggestions, or comments
by EPA regarding reports, plans, specifications, schedules,
and any other writing submitted by the Respondent will be
construed as relieving the Respondent of its obligation to
obtain such formal approval as may be required by this Consent
Order. -.
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XXI. PARTIES BOUND
9835,3
This Consent Order shall apply to and be^binding upon
the Respondent and EPA, their agents, successors, and assigns
and upon all persons, contractors, and consultants acting
under or for either the Respondent or EPA or 'both.
No change in ownership or corporate or partnership
status relating to the Site will in any way alter the status
of the Respondent or in any way alter the Respondent's
responsibility under this Consent Order. The Respondent
will remain the Respondent under this Consent Order and will
be responsible for carrying out all activities required of
the Respondent under this Consent Order.
The Respondent shall provide a copy of this Consent Order
to all contractors, sub-contractors, laboratories, and
consultants retained to conduct any portion of the work
performed pursuant t-> this Consent Order within [unit of
time; e.g., 14 calendar days) of the (effective date of this v
Consent Order or date of such retention].
XXII
NOTICE TO THE STATE
EPA has
requirements
notified the State of [State! pursuant to the
of Section 106{a) of CERCLA.
XXIII. COVENANT NOT TO Sl-E
[This Section depends on the provisions of Sections VI.
XIV, and XV. If those Sections are limited, this provision
must be more restricted. See the Appendix for suggested
language.]
XXIV. TERMINATION AND SATISFACTION
Th« provisions of this Consent Order shall be deemed
satisfied upon the Respondent's receipt of written notice
from EPA that the Respondent has demonstrated, to the
satisfaction of EPA, that all of the terms of this Consent
Order, including any additional tasks which EPA has
determined to be necessary, have been completed.
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9835.3
IT IS SO AGREED AND ORDERED:
BY:
[The Respondent] Title
Date
BY:
U.S. Environtnetal Protection Agency
Date
Effective Date:
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Appendix * 9835 .3
Additional Language for FINDINGS OF FACT Sectiont
Th« Respondent does not admit to any of the factual or
legal determinations made by EPA and reserves the rights and
defenses which the Respondent may have regarding liability
or responsibility in any subseauent proceedinas reaardina
the Site, other than proceedings to enforce.this Consent Order.
Additional Language for DELAY IN PERFORMANCE Section;
If any event occurs which causes delay in the achievement
of the requirements of this Consent Order* the Respondent shall
have the burden of proving that the delay was caused bv
circumstances beyond the reasonable control of the Respondent
which could not have been overcome by due diligence. The
Respondent shall promptly notify EPA's Project Coordinator
orally and shall, within [unit of time; e.g., seven (?)
calendar days) of oral notification to E°A, notify R°A in
writing of the anticipated length and cause of the delay,
the measures taken and/or to be taken to prevent or minimize
the delay, and the timetable by which the Respondent intends
to implement these measures. If the parties can agree that *
the delay or anticipated delay has been or will be caused bv
circumstances beyond the reasonable control of the Resoondent,
the time for performance hereunder shall be extended for a
period ecjual to the delay resulting from such circumstances.
The Respondent shall adopt all reasonable measures to avoid
or minimize delay. Failure of the Respondent to complv with
the notice reguirements of this paragraph shall render this
paragraph void and constitute a waiver of the Respondent's
right to request a waiver of the requirements of this Consent
Order. Increased costs of performance of the terms of this
Consent Order or changed economic circumstances shall not be
considered circumstances beyond the control of the Respondent.
In the event that EPA and the Respondent cannot aaree that
any delay in the achievement of the requirements of. this Cor;*-?--
Order, including the failure to submit any report or document,
has been or will be caused by circumstances beyond the reasonar'.-?
control of the Respondent, the dispute shall be resolved in
accordance with the provisions of the "Dispute Resolution"
Section (Section XII) of this Consent Order.
Language for COVENANT NOT TO SUE Section;
Upon termination of this Consent Order pursuant to
Section XXII of this Consent Order, and reimbursement to FP*
as provided in Section XV, EPA covenants not to sue the
Respondent for costs incurred by EP^ associated with the
conduct and completion of the Remedial Investigation a*nd
Feasibility Study except as otherwise reserved herein.
* Note: these provisions are commonly reauested by potentiallv
responsible parties and should not be included in the EPA
first draft.
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Outline of Attachment 1 *
9835.3
I- REMEDIAL INVESTIGATION
Purpose: Determine the nature and extent of the problem and
gather data necessary to support the feasibility study
A. Description of Site and Current Situation
B. Plans and Management
C. Site Investigation
1) waste Characterization
2) Hydrogeologic Investigation
3) Soil and Sediment Investigation
4) Surface Water Investigation
5) Air Investigation
D. Site Investigation Analysis
E. Laboratory and Pilot Scale Studies
F. Reports
G. Additional Requirements
1) Reporting Requirements v
2) Community Relations Support
3) Schedule For Activities
a) Remedial Investigation Activity
b) Meetings
c) Briefings
4) Schedule For Deliverable^ [Incl.:e number of copies]
a> Remedial Investigation Plan
b) Sampling Plan
c) Health and Safety Plan
d) Community Relations Plan
e) Permitting Requirements and Procedures
f) Chain of Custody Procedures
g) Quality Assurance/Duality Control Procedures
h) Regular [unit of time; e.g., monthly) Progress
Reports
i) Draft Report
j ) Final Report
II. FEASIBILITY STUDY
Purpose: Develop and evaluate remedial alternatives
A. Description of Current Situation and Proposed Response
* Note that this is an outlineofa model statement of work
i for an RI/FS which is part of the SPA Remedial
Investigation and "Feasibility Study guidance documents.
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~2" 9835.3
B. List and Screen Potential Remedial Technologies
C. D«v«lop Limited Number of Remedial Alternatives
1) Establish Remedial Response Objective
2) Identify Alternatives
D. Screen Alternatives based on environmental protection,
environmental effects and cost
E. Evaluate Remaining Alternatives
1) Detailed Development
2) Environmental, Public Health, Institutional, and
Cost Analysis
F. Preliminary Report
G. Final Report
K. Additional Requirements
1) Schedule for Activities
a) Feasibility Study Activity
b) Meetings
c) Briefings
2) Schedule for Deliverables
a) Feasibility Study Plan
b) List and Screen Potential Remedial Technologies
and Identify Remedial Alternatives v
c) Screen and Evaluate Alternatives
d) Preliminary Report
e) Final Report
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