UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAR i 6 ib93
OSWER Directive Number 9833.06
MEMORANDUM
SUBJECT: Model Administrative Order on Consent for Removal
Actions
FROM: Bruce M. Diamond, Director ^
Office of Waste Programs Enforcement
William A. White, ISnTorcement Counsel Superfund
Office of Enforcement
To: Addressees
Attached is EPA's final model administrative order on consent
(AOC) for removal actions. This model order embodies the language
that EPA regional offices should use when issuing removal AOCs.
The Regions and the various Headquarters offices provided
extensive input during the development of this model AOC. The
workgroup reviewed all drafts and' submitted and reviewed all
comments for possible inclusion in the order. Ihe workgroup gave
particular attention to creating a streamlined order which
includes language from other model documents.
Although regional use of the model AOC is not mandatory, we
believe the model order should form the core of any removal AOC
because -the order represents a unified Agency position for removal
actions. We encourage all Regions to make good use of the model
order.
Finally, we thank you for your participation in helping to
develop this order and hope that you find this order useful.
Attachment
Addressees: Director, Waste Management Division
Regions I, IV, V, and VII
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Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III, VI, VIII, and IX
Director, Hazardous Waste Division, Region X
Director, Environmental Services Division,
Regions I, VI, VII
Regional Counsel, Regions I-X
Henry L. Longest, II, Director, Office of Emergency
and Remedial Response
Earl Salo, Assistant General Counsel, Office of
General Counsel
Bruce Gelber, Deputy Chief, Environmental
Enforcement Section - Lands Division
cc: Regional Superfund Branch Chiefs
Model Removal Order Workgroup
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OSWER Directive Number 9833.06
Model Administrative Order On Consent for
Removal Action*
DATE: March 16, 1993
««- x?-11* document is solely intended as guidance. It does not
establish a bznding norm and is not finally determinative of the
issues addressed. This document is not intended to be a synopsis
of principles of law. The policies and procedures in this
guidance do not constitute rulemaking by the Agency, and may not
Pe rf..?;ed °n to create a substantive or procedural right or
oenetit enforceable at law any person. The Agency may take
action at variance with this guidance.
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DIRECTIONS
Information/sections/language that is optional is contained
within the brackets t]- Notes, annotations and language which
require Ragional specific or Site-specific variation or
information are identified in italics, parentheses (), and
underlined.
Optional: The Regions may identify the various sections with
either letters or numbers.
Office of Waste Programs Enforcement Contact: Fred Zimmerman,
Telephone Number: (703) 603-9063
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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION Nut
IN THE MATTER OF:
(Title of Site}
(Citv or Town. County, State)
(Name of Respondentfs)).
(If there are many
Respondents, reference an
attached list.)
Respondent(s)
TTABLB OP
ADMINISTRATIVE ORDER ON
CONSENT FOR REMOVAL ACTION
U.S. EPA Region
CERCLA
Docket No.
Proceeding Under Sections 104,
106(a), 107 and 122 of the
Comprehensive Environmental
Response, Compensation, and
Liability Act, as amended, 42
U.S.C. SS 9604, 9606(a), 9607
and 9622
[The Table of Contents section is optional.]
I. JURISDICTION AND GENERAL PROVISIONS
This Order is entered into voluntarily by the EPA and (tfafflfi) of
the Respondent (s) (" Respondent ( s) "). This Order provides for the
performance of the removal action by Respondent (s) and the
reimbursement of response costs incurred by the United States in
connection with the property located at (address or descriptive
location of Site) in (City or Town. County. State, ) the " (Name}
Site" or the "Site11. This Order requires the Respondent (s) to
conduct the removal action described herein to abate an imminent
and substantial endangerment to the public health, welfare or the
environment that may be presented by the actual or threatened
release of hazardous substances, [pollutant, or contaminant] at or
from the Site.
This Administrative Order on Consent ("Order") is issued pursuant
to the authority vested in the President of the United States by
sections 104, 106 (a), 107 and 122 of the Comprehensive
Enviroi. nental Response, Compensation, and Liability Act of 1980,
42 U.S.C. SS 9604, 9606(a), 9607 and 9622, as amended ("CERCLA"),
and delegated to the Administrator of the United States
Environmental Protection Agency ("EPA") by Executive Order No.
12580, January 23, 1987, 52 Federal Register 2923, and further
delegated to the EPA Regional Administrators by EPA Delegation
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Nos. 14-14-A and 14-14-C (and 14-14-D: Cost Recovery) [and to the
(Insert Regional delegation information if applicable.)]
EPA has notified the J State or Commonwealth of ( State} ) of this
action pursuant to sect.iou lO6(a) of CERCLA, 42 U.S.C. S 9606(a).
Respondent ( ') (s) (') participation in this Order shall not
constitute or be construed as an admission of liability or of
EPA's findings or determinations contained in this Order except in
a proceeding to enforce the terms of this Order. Respondent (s)
agree (s) to comply with and be bound by the terms of this Order.
Respondent (s) further agree (s) that (it/they) will not contest the
basis or validity of this Order or its terms.
II. PARTIES BOUND
This Order applies to and is binding upon EPA, and upon
Respondent (s) ( and Respondent (' ) (s ) < ' ) heirs, successors and
assigns) . Any change in ownership or corporate status of
Respondent (s) including, but not limited to, any transfer of
assets or real or personal property shall not alter
Respondent (') s (') responsibilities under this Order. (If the
Order is issued to more than one Respondent, add tb* fallowing:
"Respondents are jointly and severally liable for carrying out all
activities required by this Order. Compliance or noncympi vance bv
one or more Respondent with any provision of this Order shall not
excuse or Justify noncompliance Jby any other Respondent (s ) .*)
Respondent (s) shall ensure that (its/ their) contractors,
subcontractors, and representatives receive a copy of this Order
and comply with this Order. Respondent (s) shall be responsible
for any noncompliance with this order.
III. DEFINITIONS
[This section is optional. Regions should use the definitions
included in the Model CERCLA RD/RA Consent Decree (OSWER Directive
9835.17), or the National Oil and Hazardous Substances Pollution
Contingency Plan, as amended, 40 CFR P-rt 300. Regions that do
not include definitions should identify terms as necessary, e_tg. ,
business days and calendar days.]
IV. FINDINGS OF PACT
(Because Findings of Fact are site-speci/ic. no pindel Ian oil acre is
provided. Facts should be presented concisely, accurately, and
logically. They should support the finding of epdancrerment aJK*
outline the basis for naming Respondent fs) . _ Rftffjpng gfiPUJ^
include a discussion of the following points: identification 01
Respondent fs ). site location and description, sif? ^jstorv and
operations, site ownership, enforcement history, general
categories of Respondent (s) liability, past EPA and for StQte
activities and investigations, conditions and data shoving
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hazardous substances are present and releases or threats pf
releases exist, data showing that £he releag^g nr threats of
releases may present an imminent and substantial endanqerment,
-.cr.. exposure routes, risk as^^ssment,. affected populations,.
environmental harm, potential for >ir«» nr fevplosion. and other
dangers. fNote: Dnder limited circumstafuces. EPA may issue an
order to persons who may not be liable g party} - Regions shoiua
maJte this information consistent wit^ information required in the
Action Memorandum, as set forth in the Action Memorandum Guidance,
OSffER Directive Number 936" ?-?M psaions should qatfter the
evidence necessary to support the finding into an administrative
record. Regions should provide a brief description of the removal
action being ordered and vhv it is nec^fisarv to prptect tfre ~"
health, welfare, and the environment.)
V. CONCLUSIONS OP LAW MTO DETERMIHATION?
Based on the Findings of Fact set forth above, and the
Administrative Record supporting this removal action, EPA has
determined that:
1. The (nflfljfi) Site is a "facility" as defined by section 101(9) of
CERCLA, 42 U.S.C. § 9601(9).
2. The contaminants found at the Site, as identified in the
Findings of Fact above, include "hazardous substance(s)" as
defined by section 101(14) of CERCLA, 42 U.S.C. S 9601(14).
(Regions may list each chemical compound.}
3. Each Respondent is a "person" as defined by section 101(21) of
CERCLA, 42 U.S.C. S 9601(21).
4. Each Respondent may be liable under section 107(a) of CERCLA,
42 U.S.C. S 9607(a). [Optional: Regions may specify each category
of liability under section 107. For example:
A. Respondent (s) (Name/s» is (are) (the) "owner (s)" and/or
"operator(s)" of the facility, as defined by section
101(20) of CERCLA, 42 U.S.C. S 9601(20), and within the
meaning of section I07(a)(1) of CERCLA, 42 U.S.C. S
9607(a)(1).
B. Respondent(s) (Namefs)} was f*rerel a (£&e) "owner(s)"
and/or "operator(s)" of the facility at the time of
disposal of hazardous substances at the facility, as
defined by section 101(20) of CERCLA, 42 U.S.C. S
9601(20), and within the meaning of section 107(a)(2) or
CERCLA, 42 U.S.C. S 9607(a)(2).
C. Respondent(s) (Harness)) arranged for disposal or
treatment, or arranged with a transporter for transport
for disposal or treatment of hazardous substances at the
facility, within the meaning of section 107(a)(3) of
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CERCLA, 42 U.S.C. S 9607(a)(3).
D. Respondent(s) (Naioe(s)) accepts or accepted hazardous
substances for transport to the facility, within the
meaning of section 107(a)(4) of CERCLA, 42 U.S.C. §
9607(a)(4).]
5. The conditions described in the Findings of Fact above
constitute an actual or threatened "release" of a hazardous
substance from the facility as defined by sections 101(22) of
CERCLA, 42 U.S.C.S 9601(22). (Regions may specify which paragraphs
in the Findings of Fact apply.)
6. The conditions present at the facility constitute an imminent
and substantial endangerment to public health, welfare, or the
environment. Factors that may be considered are set forth in
section 300.415(b)(2) of the National Oil and Hazardous Substances
Pollution Contingency Plan, as amended, 40 CFR Part 300 ("NCP").
[Optional: These factors include, but are not limited to, the
following: (Include only those which apply)
a. actual or potential exposure to nearby human populations,
animals, or the food chain from hazardous substances or
pollutants or contaminants; this factor is present at the
Site due to the existence of (identify);
b. actual or potential contamination of drinking water
supplies or sensitive ecosystems; this factor is present at
the Site due to the existence of (identify):
c. hazardous substances or pollutants or contaminants in
drums, barrels, tanks, or other bulk storage containers, that
may pose a threat of release; this factor is present at the
Site due to the existence of (identify!;
d. high levels of hazardous substances or pollutants or
contaminants in soils largely at or near the surface, that
may migrate; this factor is present at the Site due to the
existence of (identify);
e. weather conditions that may cause hazardous substances or
pollutants or contaminants to migrate or be released; this
factor is present at the Site due to the existence of
(identify) ;
f. threat of fire or explosion; this factor is present at the
Site due to the existence of (identify!;
g. the unavailability of other appropriate federal or state
response mechanisms tc respond to the release; this factor
supports the actions required by this Order at the Site
because (describe];
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b. other situations or factors that may pose threats to
public health or welfare or the environment; this factor is
present at the Site due to the existence of (identify) J]•
7. The actual or threatened release of hazardous substances from
'•he bite may present an immlnenc and substantial endangerment to
the public health, wel-fare, or the environment within the meaning
of section 106(a) of CERCLA, 42 U.S.C. § 9606(a).
3. The removal actions required by this Order are necessary to
protect the public health, welfare, or the environment, and are
not inconsistent with the NCP or CERCLA.
VI. ORDER
Effective Date: (Insert data)1 (This date needs to be consistent
with the effective date in Section XXIV. Effective Date.}
(The removal action ordered here should be consistent with the
Action Memorandum/Decision Document).
Based upon the foregoing Findings of Fact, Conclusions of Law,
Determinations, and the Administrative Record for this Site, it is
hereby ordered and agreed that Respondent(s) shall comply with the
following provisions, including but not limited to all attachments
to this Order, and all documents incorporated by reference into
this Order, and perform the following actions:
[Regions may insert early site security requirements.1
1. Designation of Contractor. Project Coordinator, and On-Scene
Coord i nator
Respondent(s) shall perform the removal action required by this
Order itself (themselves) or retain (a) contractor(s) to perform
the removal action. Respondent(s) shall notify EPA of
Respondent(')(s)(') qualifications or the name(s) and
qualification(s) of such contractor(s) within (20 business days of
the effective date of this Order. Respondent(s) shall also notify
EPA of the name(s) and qualification(s) of any other contractor(s)
or subcontractor(s) retained to perform the removal action under
this Order at least (20 days prior to commencement of such removal
action. EPA retains the right to disapprove of any, or all, of
the contractors and/or subcontractors retained by the
Respondent(s), or of Respondent(')(s)(•) choice of itself
(thems*Ives) to do the removal action. If EPA disapproves of a
selected contractor or the Respondent(s), Respondent(s) shall
retain a different contractor or notify EPA that it will perform
the removal action itself within (20 business days following EPA's
1 Note: All time frames in the Order are expressed in
calendar days except where noted.
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disapproval and shall notify EPA of that contractor's name or
Respondent (s) and qualifications within (X) business days of EPA's
disapproval.
Within (X) days after the effective date of this Order, the
Respondent ( s ) shall designate a Project Coordinator who shall be
responsible for administration cf all the Respondent ( ' ) (s) ( ' )
actions required by the Order. Respondent (s) shall submit the
designated coordinator's name, address, telephone number, and
qualifications to EPA. To the greatest extent possible, the
Project Coordinator shall be present on site or readily available
during site work. EPA retains the right to disapprove of any
Project Coordinator named by the Respondent ( s) . If EPA
disapproves of a selected Project Coordinator, Respondent (s) shall
retain a different Project Coordinator and shall notify EPA of
that person's name, address, telephone number , and qualifications
within (20 business days following EPA's disapproval. Receipt by
Respondent (') s (') Project Coordinator of any notice or
communication from EPA relating to this Order shall constitute
receipt by (all) Respondent ( s) .
EPA has designated _ of the (Regional Office Name ^
e.g.. Emergency and Enforcement Response Branch) , as its On-Scene
Coordinator (OSC) . Respondent (s) shall direct all submissions
required by this Order to the OSC at (OSC's address) [Regions may
specify method of delivery, e.g. . by certified mail, express mail,
or other delivery methods]. EPA and Respondent (s) shall have the
right, subject to the immediately proceeding paragraph, to change
its/their designated OSC or Project Coordinator. Respondent (s)
shall notify EPA, (X.) business days before such a change is made.
The initial notification may be orally made but it shall be
promptly followed by a written notice.
2. Work to Be Performed
Respondent (s) shall perform, at a minimum, the following removal
action:
(This section should provide a brief description Consistent
with the Action Memo /Decision Document and s^™?Td provide
sufficient detail to permit Respondent (?) to dry ft a Work
Plan. Regions should ensure that the description is
sufficiently broad and does not unintentionally limit removal.
actions in terms of hazardous substances to p? ^Qressed or
to site boundaries if hazardous substances ar* present or
migrate beyond boundaries to be addressed. Regions may
append their own Statement of Work or Work Plan: if th*s
situation occurs, modify sections 2.1-2.3 as Appropriate.)
(The dates of the referenced regulations *"^ guidance
documents may change depending on future Agency actions.)
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2.1 Work Plan and Implementation
Within (£) days after the effective date of this Order, the
Respondent(s) shall submit to EPA for approval a draft Work Plan
for performing the removal action set forth above. The draft Work
Plan shall provide a description of, and an expeditious schedule
for, the actions required K" this Order.
EPA may approve, disapprove, require revisions to, or modify the
draft Work Plan, if EPA requires revisions, Respondent(s) shall
submit a revised draft Work Plan within (£) days of receipt of
EPA's notification of the required revisions. Respondent(s) shall
implement the Work Plan as finally approved in writing by EPA in
accordance with the schedule approved by EPA. Once approved, or
approved with modifications, the Work Plan, the schedule, and any
subsequent modifications shall be fully enforceable under this
Order. Respondent(s; shall notify EPA at least 48 hours prior to
performing any on-site work pursuant to the EPA-approved Work
Plan. Respondent(s) shall not commence or undertake any removal
action on-the site without prior EPA approval.
(Instruction: If a planning period of 6 months exists. EPA shall
require the performance of an Engineering Evaluation/Cost. Analysis
fEE/CA) as required by the NCP at 40 CFR 300.415(b)(4).")
[Optional: Regions may specify formal standards for work quality
and quality of deliverables.]
2.2 Health and Safety Plan
Within (X) days after the effective date of this Order, the
Respondent (s) she; 11 submit for EPA review and comment a plan that
ensures the protection of the public health and safety during
performance of on-site work under this Order. This plan shall be
prepared in accordance with EPA's current Standard Operating
Safety Guide, dated November 1984, and currently updated July 1988
but see latest version if different. In addition, the plan shall
comply with all current applicable Occupational Safety and Health
Administration (OSHA) regulations found at 29 CFR Part 1910.
[Optional: If EPA determines that it is appropriate, the plan
shall also include contingency planning. Regions may provide mere
detail, e.g.. SPCC, evacuation plans, etc.]. Respondent(s) shall
incorporate all changes to the plan recommended by EPA, and
implement the plan during the pendency of the removal action.
2.3 Quality Assurance and Sampling
All sampling and analyses performed pursuant to this Order shall
conform to EPA direction, approval, and guidance regarding
sampling, quality assurance/quality control (QA/QC), data
validation, and chain of custody procedures. Respondent(s) shall
ensure that the laboratory used to perform the analyses
participates in a QA/QC program that complies with the appropriate
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EPA guidance. Respondent(s) shall follow the following documents,
as appropriate, as guidance for QA/QC and sampling: "Quality
Assurance/Quality Control Guidance for Removal Activities:
Sampling QA/QC Plan and Data Validation Procedures," OSWER
Directive Number 9360.4-01; "Environmental Response Team Standard
Operating Procedures," OSWER Directive Numbers 9360.4-02 through
9360.-4-08; [and the representative Sampling Guidance for soil,
air, ecology, waste, and water as this information becomes
finalized and available.] (Check with Regional OA Officers for
availability and location of these documents.)
Upon request by EPA, Respondent(s) shall have such a laboratory
analyze samples submitted by EPA for quality-assurance monitoring.
Respondent(s) shall provide to EPA the quality assurance/quality
control procedures followed by all sampling teams and laboratories
performing data collection and/or analysis.
Upon request by EPA, Respondent(s) shall allow EPA or its
authorized representatives to take split and/or duplicate samples
of any samples collected by Respondent(s) while performing work
under this Order. Respondent(s) shall notify EPA not less than
(20 days in advance of any sample collection activity. EPA shall
have the right to take any additional samples that it deems
necessary.
2.4 Post-Removal Site Control
In accordance with the Work Plan schedule, or as otherwise
directed by EPA, Respondent(s) shall submit a proposal for post-
removal site control within (X) days consistent with section
300.415(k) of the NCP and OSWER Directive 9360.2-02. Upon EPA
approval, Respondent(s) shall implement such controls and shall
provide EPA with documentation of all post-removal site control
arrangements.
2.5 Reporting
Respondent(s) shall submit a written progress report to EPA
concerning actions undertaken pursuant to this Order every (Xth)
day after the date of receipt of EPA's approval of the Work Plan
until termination of this Order, unless otherwise directed by the
OSC (in writ inert. These reports shall describe all significant
developments during the preceding period, including the actions
performed and any problems encountered, analytical data received
during the reporting period, and the developments anticipated
during the next reporting period, including a schedule of actions
to be performed, anticipated problems, and planned resolutions of
past or anticipated problems.
(The frequency and content of these reports may be determined on.<
site-specific basis.)
Any Respondent(s) that own(s) any portion of the Site shall, at
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least 20 days prior to'the conveyance of any interest in real
property at the Site, give written notice that the property is
subject to this Order to the transferee and written notice to EPA
[and the State] of the proposed conveyance, including the name and
address of the transferee. Respondent(s) agrees to require that
its successor comply with ^v -> immediately proceeding sentence and
Section Three - Access to iPropert.y and Information.
2.6 Final Report
Within (£) days after completion of all removal actions required
under this Order, the Respondent(s) shall submit for EPA review
[and approval] a final report summarizing the actions taken to
comply with this Order. The final report shall conform, at a
minimum, with the requirements set forth in section 300.165 of the
NCP entitled "OSC Reports" (For removals that are more extensive
Regions may require compliance with OSWER Directive No. 9360.3-
03 - ".Removal Response Reporting* ). The final report shall
include a good faith estimate of total costs or a statement of
actual costs incurred in complying with the Order, a listing of
quantities and types of materials removed off-site or handled on- ,
site, a discussion of removal and disposal options considered for
those materials, a listing of the ultimate destination of those
materials, a presentation of the analytical results of all
sampling and analyses performed, and accompanying appendices
containing all relevant documentation generated during the removal
action (e.g.. manifests, invoices, bills, contracts, and permits).
The final report shall also include the following certification
signed by a person who supervised or directed the preparation of .
that report:
Under penalty of law, I certify that to the best of my
knowledge, after appropriate inquiries of all relevant
persons involved in the preparation of th<» report, the
information submitted is true, accurate, and complete. I
am aware that there are significant penalties for submitting
false information, including the possibility of fine and
imprisonment for knowing violations.
3. Access to Property and Information
Respondent(s) shall provide, and/or obtain access to the Site and
off-site areas to which access is necessary to implement this
Order, and provide access to all records and documentation related
to the conditions at the Site and the actions conducted pursuant
to this Order. Such access shall be provided to EPA employees,
contractors, agents, consultants, designees, representatives, and
State of (name) representatives. These individuals shall be
permitted to move frsaly at the Site and appropriate off-site
areas in order to conduct actions which EPA determines to be
necessary. Respondent(s) shall submit to EPA, (upon reg^fpt/ upon
request), the results of all sampling or teets and all other data
generated by Respondent(s) or their contractor(s), or on the
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Respondent(')s(') behalf during implementation of this Order.
Where action under this Order is to be performed in areas owned bf
or in possession of someone other than Respondent(s),
Respondent(s) shall use (its/their) best, efforts to obtain all
necessary access agreements within (X) clays after the effective
date of this Ordar, or otherwise specified in writing by the
OSC. Respondent(s) shall immediately notify EPA if after using
(its/their) best efforts
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5. Off-Site Shipments
All hazardous substances,, pollutants or contaminants removed off-
site pursuant to this Order for treatment, storage, or disposal
shall be treated, stored,
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from the Site, Respondent(s) shall immedlately notify EPA's OSC
(Insert Regional spill phone number) and the National Response
Center at telephone number (800) 424-8802. Respondent(s) shall
submit a written report to EPA within (seven (7)1 days after each
release, setting forth the events that occurred and the measures
taken or to be taken to mitigduo any release or endangerment
caused or threatened by the release and to prevent the
reoccurrence of such a release. This reporting requirement is in
addition to, not in lieu of, reporting under CERCLA section 103(c)
and section 304 of the Emergency Planning and Community Right-To-
Know Act of 1986, 42 U.S.C. Sections 11001 et sea.
VII. AUTHORITY OF THE EPA ON-SCEKB COORDINATOR
The OSC shall be responsible for overseeing the
Respondent(')(s)(') implementation of this Order. The OSC shall
have the authority vested in an OSC by the NCP, including the
authority to halt, conduct, or direct any work required by this
Order, or to direct any other removal action undertaken at the
Site. Absence of the OSC from the Site shall not be cause for
stoppage of work unless specifically directed by the OSC.
VIII. REIMBURSEMENT OP COSTS
rWote: Regions may modify this section to incorporate Regional
accounting procedures and/or to define reimbursable costs more
specifically.1
Within thirty (30) days after the effective date of the Order,
Respondent(s) shall pay , in the manner detailed below,
for reimbursement of past response costs paid by the United
States. Past response costs are all costs, including, but not
limited to, direct and indirect costs and interest, that the
United States, its employees, agents, contractors, consultants,
and other authorized representatives incurred and paid with regard
to the Site prior to (cost summary date). In addition,
Respondent(s) shall reimburse EPA for all future response costs,
not inconsistent with the NCP, incurred by the United States.
Future response costs are all costs, including, but not limited
to, indirect and indirect costs, that the United States incurs in
reviewing or developing plans, reports and other items pursuant to
this AOC, verifying the Work, or otherwise implementing,
overseeing, or enforcing this AOC. Future response costs shall
also include all costs, including direct and indirect costs, paid
by the United States in connection with the Site between (insert
the date identified in the Past Response Costs definition in the
above paragraph) and the effective date of this AOC and all
interest on the Past Response Costs from (insert the date
identified in the Past Response Costs definition in the above
paragraph) to (the date of payment of the Past p&sponse Costs).
On a periodic basis, EPA shall submit to Respondent(s) a bill foi
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future response costs that includes a (name of regional cost
summary.) . Respondent(s) shall, within (X) days of receipt of the
bill, remit a cashier's or certified check for the amount of the
bill made payable to the *Ha2ardous Substance Superfund," to the
following address:
(RerA""al lock Box)
(Appropriate address)
Respondent (s) shall simultaneously transmit a copy of the check to
EPA Regional Address)„ Payments shall be designated as
" (Response_Costs) -(site Name) Site11 and shall reference the
payer's name and address, the EPA site identification number
(number), and the docket number of this Order.
In the event that the payment for past response costs is not made
within 30 days of the effective date of this AOC or the payments
for future response costs are not made within (£) days of the
Respondent(')(s)(') receipt of the bill, Respondent(s) shall pay
interest on the unpaid balance.
Interest is established at the rate specified in section 107(a) of
CERCLA. The interest to be paid on Past Response Costs shall
begin to accrue on the effective date of the Order. The interest
on Future Response costs shall begin to accrue on the date of the
Respondent's receipt of the bill. Interest shall accrue at the
rate specified through the date of the payment. Payments of
interest made under this paragraph shall be in addition to such
other remedies or sanctions available to the United States by
virtue of Respondent(')(s)(') failure to make timely payments
under this Section.
Respondent(s) may dispute all or part of a bill for Future
Response Costs submitted under this Order, if Respondent(s)
allege(s) that EPA has made an accounting error, or if
Respondent(s) allege(s) that a cost item is inconsistent with the
NPP
NCP
If any dispute over costs is resolved before payment is due, the
amount due will be adjusted as necess-ry. If the dispute is not
resolved before payment is due, Respondent(s) shall pay the full
amount of the uncontested costs into the Hazardous Substance Fund
as specified above on or before the due date. Within the same
time period, Respondent(s) shall pay the full amount of the
contested costs into an interest-bearing escrow account.
Respondent(s) shall simultaneously transmit a copy of both checks
to the OSC. Respondent(s) shall ensure that the prevailing party
or partips in the dispute shall receive the amount upon which they
prevailed from the escrow funds plus interest within (X) days
after the dispute is resolved.
IX. DISPUTE RESOLUTION
(Note: The Regions should develop a record for the dispute and its
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resolution.)
The parties to this Order shall attempt to resolve, expeditiously
and informally, any disagreements concerning this Order.
If the Respondent(s) object(s) ^o any EPA action taken pursuant to
this Order, including billings for future response costs, the
Respondent(s) shall notify EPA in writing of (its/their)
objection(s) within (X) days of such action, unless the
objection(s) (has/have) been informally resolved. Regions may
specify the particular details required in the notifications and
any internal procedures for response.)
[Option One: EPA and Respondent(s) shall (X) days from EPA's
receipt of the Respondent(•)(s)(') written objections attempt to
resolve the dispute through formal negotiations (Negotiation
Period). The negotiation period may be extended at the sole
discretion of EPA. EPA's decision regarding an extension of the
Negotiation Period shall not constitute an EPA action subject to
dispute resolution or a final agency action giving rise to
judicial review.]
[Option Two: The Respondent(s) may request that an alternative
dispute resolution technique, including but not limited to
mediation or factfinding, be utilized by the parties to facilitate
formal negotiations. Such request must be in writing submitted as
part of Respondent (')(s)(') written objections. Within 5 days of
EPA's receipt of Respondent(')(s)(') request for alternative
dispute resolution (ADR), EPA will notify the Respondent(s) of
whether EPA agrees to utilize the requested ADR techniques. If
EPA agrees with Respondent(')(s)(') request for use of ADR, the
parties agree to follow the procedures outlined below. EPA's
decision regarding participation in ADR shall not constitute an
EPA action subject to dispute resolution or a final agency action
giving rise to judicial review.
The parties agree to select an ADR professional(s) in accordance
with the following procedures:
(a) Upon (X) days of the Respondent(')(s)(') request for use
of ADR, the EPA Project Coordinator shall forward to
Respondent(s) a list of ADR professionals (ADR Selection
List) available through the Dispute Resolution Support
Services Contract managed by EPA.
(b) Within 5 days of Respondent(•)(s)(') receipt of the ADR
Selection List, the parties shall provide each other in
writing the names of 5 persons from the ADR Selection List
proposed to serve as ADR professionals for the matter in
dispute. The ADR professionals proposed by each Party shall
not have any past, present, or planned futures business
relationships with the parties, other than for ADR
activities. All persons nominated shall be provided, by
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the nominating party, with a copy of this Order.
(c) Within 2 days of the receipt of the list of proposed ADR
professionals, each party shall advise the other in writing
of acceptable professionals. The parties shall select an ADR
professional from the list of acceptable professionals and
enter a contract for ADR services with such person within 20
days of the receipt or the list of proposed ADR
professionals.
EPA agrees to extend the Negotiation Period as appropriate to
allow for selection and contracting with ADR professionals, and
use of ADR as agreed upon by the parties. The parties inability
to select an ADR professional, or execute a contract for ADR
services shall not extend the Negotiation Period beyond that
specified by EPA.
Meetings or conferences with the ADR professional shall be treated
as confidential. Statements made by any person during any such
meetings or conferences shall be deemed to have been made in
compromise negotiations within the meaning of Rule 408 of the
Federal Rules of Evidence and applicable state rules of evidence,
and shall not be offered in evidence in any proceeding by any
person. The ADR professional shall be disqualified as a witness,
consultant, or expert in any impeding or future legal action
relating to the subject matter of the remediation, including those
between persons not a party to the mediation. If the selected ADR
professional fails to comply with the confidentiality requirements
of this section, his/her contract will be terminated and he/she
will be excluded from any future mediation under this Order. If
the Respondent(s) fails to comply with the confidentiality
requirements of this section, then it will forfeit its rights, if
any remain, under this Order to request future use oaf ADR and may
be responsible for stipulated penalties for such breach as
provided in Section XI - Stipulated and Statutory Penalties.]
Any agreement reached by the parties pursuant to this section
shall be in writing, signed by both parties, and shall upon the
signature by both parties be incorporated into and become an
enforceable element of this Order. If the parties are unable to
reach an agreement within the Negotiation Period, an EPA
management official at the (Region specific) level or higher will
issue a written decision on the dispute to the Respondent(s). The
decision of EPA shall be incorporated into and become and
enforceable element of this Order upon Respondent(')(s)(') receipt
of the EPA decision regarding the dispute. Respondent(')(s)(')
obligations under this Order shall not be tolled by submission of
any objection for dispute resolution under this section.
Following resolution of the dispute, as provided by this section,
Respondent(s) shall fulfill the requirement that was the subject
of the dispute in accordance with the agreement reached or with
EPA's decision, whichever occurs. No EPA decision made pursuant
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to this section shall constitute a final agency action giving rise
to judicial review.
X. PORCH KAJEURB
Respondent(s) agree(s) to perform all requirements under this
order within the tinfe lim*..., : cablished under this Order, unless
the performance is delayed by a force majeure.. For purposes of
this Order, a force majeure is defined as any event arising from
causes beyond the control of Respondent(s) or of any entity
controlled by Respondent(s), including but not limited to
(its/their) contractors and subcontractors, that delays or
prevents performance of any obligation under this Order despite
Respondent(')(s)(') best efforts to fulfill the obligation. Force
roajeure does not include financial inability to complete the work
or increased cost of performance.
Respondent(s) shall notify EPA orally within (£) hours after the
event, and in writing within (X) days after Respondent(s)
become(s) or should have become aware of events which constitute a
force maieure. Such notice shall: identify the event causing the
delay or anticipated delay; estimate the anticipated length of
delay, including necessary demobilization and re-mobilization;
state the measures taken or to be taken to minimize the delay; and
estimate the timetable for implementation of the measures.
Respondent(s) shall take all reasonable measures to avoid and
minimize the delaye Failure to comply with the notice provision
of this section shall waive any claim of force majeure by the
Respondent(s).
If EPA determines a delay in performance of a requirement under
this Order is or was attributable to a force pajeure, the time
period for performance of that requirement shall be extended as
deemed necessary by EPA. Such an extension shall not alter
Respondent(s)(•)(s) obligation to perform or complete other tasks
required by the Order which are not directly affected by the force
maieure.
XI. STIPULATED AMP STATUTORY PENALTIES
For each day, or portion thereof, that Respondent(s) fail(s) to
perform, fully, any requirement of this Order in accordance with
the schedule established pursuant to this Order, Respondent(s)
shall be liable as follows: (insert penalty provisions/ penalties
may vary depending on the type of deliverable, the mt"»fr^r pf days
and weeks late, and other* acts of noncompllance) .
Upon receipt of written demand by EPA, Respondent(s) shall make
payment to EPA within (X) days. Interest shall accrue on late
payments as of the date the payment is due which is the date of
the violation or act of non-compliance triggering the stipulated
penalties.
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Even if violations are simultaneous, separate penalties shall
accrue for separate violations of this Order. Penalties accrue
and are assessed per violation per day. Penalties shall accrue
regardless of whether EPA has notified Respondent (s) of a
violation or act of noncompliance. The payment of penalties shall
not alter in any way Respondent (') (s) (') obligation (s) to complete
the performance of the work required under this Order.
Violation of any provision of this Order may subject Respondent vo/
to civil penalties of up to twenty-five thousand dollars ($25,000)
per violation per day, as provided in section 106 (b) (1) of CERCLA,
42 U.S.C. section 9606(b)(l). Respondent(s) may also be subject
to punitive damages in an amount up to three times the amount of
any cost incurred by the United States as a result of such
violation< as provided in section 107(c)(3) of CERCLA, 42 U.S.C.
Section 9607 (c) (3). Should Respondent (s) violate this Order or
any portion hereof, EPA may carry out the required actions
unilaterally, pursuant to section 104 of CERCLA, 42 U.S.C. Section
9604, and/or may seek judicial enforcement of this Order pursuant
to section 106 of CERCLA, 42 U.S.C. Section 9606.
? The Nortel RD/p/ft Consent Decree contains
could be used as *n alternative to this paragraph.)
XII. RESERVATION OF RIGHTS
Except as specifically provided in this Order, nothing herein
shall limit the power and authority of EPA or the United States to
take, direct, or order all actions necessary to protect public
health, welfare, or the environment or to prevent, abate, or
minimize an actual or threatened release of hazardous substances,
pollutants or contaminants, or hazardous or solid waste on, at, or
from the Site. Further, nothing herein shall prevent EPA from
seeking legal or equitable relief to enforce the terms of this
Order, from taking other legal or equitable action as it deems
appropriate and necessary, or from requiring the Respondent (s) in
the future to perform additional activities pursuant to CERCLA or
any other applicable law. EPA reserves the right to bring an
action against Respondent (s) under section 107 of CERCLA, 42
U.S.C. section 9607, for recovery of any response costs incurred
by the United States related to this Order or the Site and not
reimbursed by Respondent (s) . [Optional: Regions may add more
specific language.] (Note: Only a Natural Resource Tf?j«t?? has the
flUtftpritV to waive a claim for natural resource damage.)
XIII. OTHER CLAIMS
By issuance of this Order, the United States and EPA assume no
liability for injuries or damages to persons or property resulting
from any acts or omissions of Respondent (s) . The United States or
EPA shall not be deened a party to any contract entered into by
the Respondent (s) or (its/their) directors, officers, employees,
agents, successors, representatives, assigns, contractors, or
consultants in carrying out actions pursuant to this Order.
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Except as expressly provided in Section XIV - Covenant Not To Sue,
nothing in this Order constitutes a satisfaction of or release
from any claim or cause of action against the Respondent(s) or any
person not a party to this Order, for any liability such person
may have under CERCLA, other statutes, or the common law,
including but not limited «-•-• any claims of the United States for
costs, damages and interest under sections 106(a) and 107(a) of
CERCLA, 42 U.S.C. Sections 9606(a) and 9607(a).
This Order does not constitute a preauthorization of funds under
section lll(a)(2) of CERCLA, 42 U.S.C. S 9611(a)(2). The
Respondent(s) waive(s) any claim to payment under sections 106(b),
111, and 112 of CERCLA, 42 U.S.C. §S 9606(b), 9611, and 9612,
against the United States or the Hazardous Substance Superfund
arising out of any action performed under this Order.
No action or decision by EPA pursuant to this Order shall give
rise to any right to judicial review except as set forth in
section 113(h) of CERCLA, 42 U.S.C. § 9613(h).
XIV. COVENANT NOT TO SUE
(Note: The scope of this covenant must be tailored to the type of
settlement.)
Except as otherwise specifically provided in this Order, upon
issuance of the EPA notice referred to in Section XX - Notice of
Completion, EPA covenants not to sue Respondent(s) for judicial
imposition of damages or civil penalties or to take administrative
action against Respondent(s) for any failure to perform removal
actions agreed to in this Order except as otherwise reserved
herein.
(Note: Regions may vary the scope of this paragraph in light of
case-specific circumstances) Except as otherwise specifically
provided in this Order, in consideration and upon
Respondent(')(s)(') payment of the response costs specified in
Section VIII of this Order, EPA covenants not to sue or to take
administrative action against Respcndent(s) under section 107(a)
of CERCLA for recovery of past and future response costs incurred
by the United States in connection with this removal action or
this Order. This covenant not to sue shall take effect upon the
receipt by EPA of the payments required by Section VIII -
Reimbursement of Costs.
These covenants not to sue are conditioned upon the complete and
satisfactory performance by Respondent(s) of(its)(their)
obligations under this Order. These covenants not to sue extend
only to the Respondent(s) and do not extend to any other person.
XV. CONTRIBUTION PROTECTION
With regard to claims for contribution against Respondent(s) for
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matters addressed in this Order, the Parties hereto agree that the
Respondent(s) is (are) entitled to protection from contribution
actions or claims to the extent provided by section 113(f)(2) and
122(h)(4) of CERCLA, 42 O.S»C. Sections 9613(f)(2) and 9622(h)(4).
Nothing in this Order precludes the United States or the
Respondent(s) from asserting any claims, causes of action or
demands against any -persons no*- parties to this Order for
indemnification, contribution, o*. cost recovery.
XVI. INDEMNIFICATION
Respondent(s) agree(a) to indemnify, save and hold harmless the
United States, its officials, agents, contractors, subcontractors,
employees and representatives from any and all claims or causes of
action: (A) arising from, or on account of, acts or omissions of
Respondent(s), Respondent(')(s)(') officers, heirs, directors,
employees, agents, contractors, subcontractors, receivers,
trustees, successors or assigns, in carrying out actions pursuant
to this Order; and (B) for damages or reimbursement arising from
or on account of any contract, agreement, or arrangement between
(any one or more of) Respondent(s), and any persons for
performance of work on or relating to the Site, including claims
on account of construction delays. In addition, Respondent(s)
agree(s) to pay the United States all costs incurred by the United
States, including litigation costs arising from or on account of
claims made against the United States based on any of the acts or
omissions referred to in the preceding paragraph. (Note: Regions *
may add the following where appropriate: )
[Optional: Respondent(s) waive(s) all claims against the United
States for damages or reimbursement or for set-off of any payments
made or to be made to the United States, arising from or on
account of any contract, agreement, or arrangement between (any
one or more of) Respondent(s) and any person for performance of
Work on or relating to the Site, including, but not limited to,
claims on account of construction delays.]
XVII. INSURANCE
(Note: Regions are encouraged to include the last paragraph on
Insurance set out below. It requires Respondentfs) to carry the
standard form business liability Insurance policy ("Comprehensive
General Liability* policy). or to supplement the coverage already
maintained by .Respondent (s). or Respondent (') fs} (') contractors or
subcontractors. This policy provides coverage for liability
claims made bv third parties who are injured by PRP response
activities required by EPA at the Site. The coverage ensures that
third parties are compensated for such injuries: ihat the PRP
bears the cost of such protection: and that the United States runs
less risk of bearing litigation costs arising front liability suits
against it.) (Note: This policy typically does not cover liability
caused by releases of pollutants: such coverage typically has
proved unavailable or prohibitively expensive.)
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(Note; Jh cases where Respondent(s) demonstrate(s) that they do
not have funds sufficient both to fund the removal and obtain the
optimal insurance policy; or in cases where EPA is confident that
insuraJble risks are minimal; or if Respondent(s) (has/have) the
financial capacity to self-insure, and agree to do so. Regions may
consider amending the Order to reduce policy limits or to waive
the insurance requirement or omit this section from the Order.)
At least seven (7) days prior to commencing any on-site work under
this Order, the Respondent(s) shall secure, and shall maintain for
the duration of this Order, comprehensive geiweral liability
insurance and automobile insurance with limits of (XXXX) million
dollars, combined single limit. Within the same time period, the
Respondent(s) shall provide EPA with certificates of such
insurance and a copy of each insurance policy. If the
Respondent(s) demonstrates by evidence satisfactory to EPA that
any contractor or subcontractor maintains insurance equivalent to
that described above, or insurance covering some or all of the
same risks but in an equal or lesser amount, then the
Respondent(s) need provide only that portion of the- insurance
described above which is not maintained by such contractor or
subcontractor.
XVIII. FINANCIAL ASSURANCE
[Optional: Within thirty (30) days after the effective date of
this Order and every (time period) thereafter until notice of
completion of work under Section XX, (one (1) or more of) the
Respondent(s) shall demonstrate to EPA that (it/they) meet(s) one
of the financial assurance mechanisms specified in 40 CFR section
264.143 for the sufficient estimated costs of work to be performed
by the Respondent(s) under this Order.]
XIX. MODIFICATIONS
Modifications to any plan or schedule (or Statement of Work) may
be made in writing by the OSC or at the OSC's oral direction. If
the OSC makes an oral modification, ?t will be memorialized in
writing within (X) days; provided, however, that the effective
date of the modification shall be the date of the OSC's oral
direction. Any other requirements of the Order may be modified in
writing by mutual agreement of the parties.
If Respondent(s) seek(s) permission to deviate from any approved
Work Plan or schedule for Statement of Work). Respondent(')s(')
Project Coordinator shall submit a written request to EPA for
approval outlining the proposed Work Plan modification and its
basis.
No informal advice, guidance, suggestion, or comment by EPA
regarding reports, plans, specifications, schedules, or any other
writing submitted by the Respondent(s) shall relieve the
Respondent(s) of (its/their) obligation(s) to obtain such formal
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approval as may be required by this Order, and to comply with
all requirements of this Order unless it is formally modified.
XX. ADDITIONAL REMOVAL ACTION
'mhi.3 section is optional. If uiis section is used, then you
should change the numbering of the subsequent sections]
[Optional: If EPA determines that additional removal actions not
included in an approved plan are necessary to protect public
health, welfare, or the environment, EPA will notify Respondent (s)
of that determination. Unless otherwise stated by EPA, within
thirty days of receipt of notice from EPA that additional removal
actions are necessary to protect public health, welfare, or the
environment, Respondent (s) shall submit for approval by EPA a Work
Plan for the additional removal actions. The plan shall conform
to the applicable requirements of sections (QUffi£e£S) of this
Order. Upon EPA's approval of the plan pursuant to Section 2.1 -
Work Plan and Implementation, Respondent (s) shall implement the
plan for additional removal actions in accordance with the
provisions and schedule contained therein. This section does not
alter or diminish the OSC's authority to make oral modifications
to any plan or schedule pursuant to Section XIX - Modifications.]
XXI. NOTICE OF COMPLETION
When EPA determines, after EPA's review of the Final Report, that •
all removal actions have been fully performed in accordance with
this Order, with the exception of any continuing obligations
required by this Order, including (Rea±ons should provide * 1±st
Of such obligations, e.g.. post-removal site controls or record
retention \ r EPA will provide notice to the Respondent ( s) . If EPA
determines that any removal actions have not been completed in
accordance with this Order, EPA will notify the Respondent ( s) ,
provide a list of the deficiencies, and require that Respondent (s)
modify the Work Plan if appropriate in order to correct such
deficiencies. The Respondent(s) shall implement the modified and
approved Work Plan and shall submit a modified Final Report in
accordance with the EPA notice. Failure by Respondent (s) to
implement the approved modified Work Plan shall be a violation of
this Order.
XXII. PUBLIC COMMENT
(Site-specific.- Final acceptance Jby EPA cf Section VTJJ
-tent of Costsi of this Order shall be subject to Section
122 fi) of CERCI.A, 42 U.S.C. Section 9622 fi) r vhich r<*wtre*s EPA to
publish notice of the proposed settlement in the federal Register,
to Provide persons who are not parties to the propose^ settlement
an opportunity fco comment, solely- on the cost recovery component
of the settleyeyt. and to consider comments filed in determining
whether to consent to the proposed settlement. After
consideration of fnv ^mments submitted during the thirty (30} day
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public comment period held pursuant to Section 122(1) of CEJRCLA,
EPA may withhold consent to all or part of Seccion VIII of this
Order if comments received disclose facts or considerations which
.indicate that Section VJJT of this Order is Inappropriate,
improper or inadequate. Otherwise. Section VIII shall become
effective when EPA issues notice to /Site specific: Name of
Jtespo.-^a/it(s) t that the fo^.^r is not withdrawing from this
section of the Order.)
XXIII. 8EVERABILIT?
If a court issues an order that invalidates any provision of this
Order or finds that Respondent(s) (has/have) sufficient cause not
to comply with one or more provisions of this Order, Respondent (s)
shall remain bound to comply with all provisions of this Order not
invalidated or determined to be subject to a sufficient caus*
defense by the court's order.
XXIV. EFFECTIVE DATE
[Optional: This Order may be executed in any number of
counterparts, each of which when executed and delivered to EPA
shall be deemed to be an original, but such counterparts shall
together constitute one and the same document.]
(Note: Regions may insert specific practice and language.) This
Order shall be effective (X) days after the Order is signed by the
Regional Administrator.
(Note! Signature page)
The undersigned representative(s) of Respondent(s) certify(ies)
that it (they) is (are) fully authorized to enter into the terms
and conditions of this Order and to bind the party(ies) it (they)
represent(s) to this document.
Agreed this day of , 199 .
By
Title
(Note: Separate page for the following signature.)
(Note: If a public comment period is held (see Section XXI -
Public Comment (above)). then the Regions should take into account
the public comment period when determining the effective date.)
It is so ORDERED and Agreed this day of ,
199 .
BY: DATE:
Name
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Regional Administrator for desicrnee)
Region (Number)
U.S. Environmental Protection Agency EFFECTIVE DATE:
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