United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
3EPA
DIRECTIVE NUMBER:
9834.7-1A
TITLE: Interim Model CERCLA Section 122(g)(4) De Minimis
Waste Contributor Consent Decree and Administrative
Order on Consent
APPROVAL DATE: October 19, 1987
EFFECTIVE DATE: October 19,1987
ORIGINATING OFFICE: OWE/OECM
® FINAL
D DRAFT
LEVEL OF DRAFT
O A — Signed by AA or DAA
0 B — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents): Document #9834.7
Interim Guidance on Settlements with De Minimis Waste
Contributors under Section 122(g) of SARA.
SWER OSWER OSWER
DIRECTIVE DIRECTIVE Dl
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45-EPA
United States Environmental Protection Agency
Washington. DC 20460
OSWER Directive Initiation Reguest
1. Directive Number
9834.7-1A
2. Originator Information
Mame of Contact Person
Bob Mason
Mail Code
WH-527
Office
OWPE/OECM
Telephone Code
382-4015
3. Title
Interim Model CERCLA Section 122(g)(4) De Minimis Waste Contributor Consent Decree and
Administrative Order on Consent
4. Summary of Directive (include brief statement of purpose)
The purpose of this memorandum is to provide interim model lanaguage to assist the
Regions in drafting de minimis waste contributor consent decrees and administrative
orders on consent under Section 122(g)(4) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Re-
authorization Act of 1986, Pub. L. No. 99-499, 42 U.S.C. 9622(g)(4) ("CERCLA").
5. Keywords
oa. uoes i rtis Directive auperseae previous uirective(s)'.
b. Does It Supplement Previous Directive(s)?
Yes
What directive (number, title)
Yes What directive (number, title) 9 8 3 4. 7
iterim Model CERCLA Section 122(g)(4)- De Minimis Wa&te Contributor Consent Decree and
.ministraEive Order on Consent ° •. —r- • -..-
Pratt Level
A - Signed by AA/DAA
8 - Signed by Office Director
C - For Review & Comment
D - In Development
8.
Document
to
be
distributed
to
States by Headquarters? 1 A Yea
No
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
& &L/&4JL' <•*£ // )c^€^^)
10. Name and Title of Approving OfficlaT
Date
So/2(,/$T?
Date
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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9834.7-M
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
OCT i 9 1987
MEMORANDUM
SUBJECT
FROM
TO:
Interim Model CERCLA Section 122(g)(4) De Minimis
Waste Contributor Consent Decree and Administrative
Order on Consent
Edward E. Reich
Associate Enforc
Gene A. Lucero
Director, Offic
:ent Counsel for Waste
A,
te'Programs Enforcement
Regional Counsels, Regions I- -.."X
Regional Waste Management Division Directors,
Regions I - X
I. PURPOSE
The purpose of this memorandum is to provide interim model
language to assist the Regions in drafting de minimis waste
contributor consent decrees and administrative orders on consent
under Section 122(g)(4) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, Pub. L.
No. 99-499, 42 U.S.C. 9622(g)(4) ("CERCLA"). The attached models
are designed to be usjed in conjunction with theQ|_Lnterim Guidance
on Settlements withtDe Minimis Waste Contributors(under Section
122(g) of SARA," whicF was issued on June 1.9, 198"7l and published
at 52 Fed. Reg. 24333 (June 30, 1987). The models do not percain
to settlements with de minimis landowners under Section 122(g)(1)(B)
of CERCLA, 42 U.S.C.^6Z2(g) (1) (B), which will be addressed by
separate guidance.
The attached models contain the basic legal and factual
provisions necessary for a de minimis contributor settlement.
While the specific language may be varied, consistent with che
interim guidance, to suit the facts of the case and the timing
of the settlement, use of the models will help the Agency to
achieve quick, standardized, and nationally consistent de minimis
contributor settlements without engaging in lengthy, resource-
intensive negotiations. The models may be revised after we have
gained experience in drafting de minimis settlements and have
completed our review of public comments received on the interim
guidance referenced above. I
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9834,7
•
II. DISCLAIMER
This memorandum and any internal procedures adopted for its
implementation are intended solely as guidance for employees of
the U.S. Environmental Protection Agency. They do not constitute
rulemaking by the Agency and may not be relied upon to create a.
right or a benefit, substantive or procedural, enforceable at law
or in equity by any person. The Agency may take action at variance
with this memorandum or its internal implementing procedures.
Attachments
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ATTACHMENT 1 7834. 7~
INTERIM MODEL SECTION 122(tQ(4) CONSENT DECREE
UNITED STATES OF AMERICA, )
)
Plaintiff, )
) Civil Action No.
v. )
) Judge
[INSERT NAME(S) OF DEFENDANT(S) ] )
' ' •' •.•:••••. ' )
Defendant(s) )
CONSENT DECREEy
[NOTE: If the complaint concerns causes of action which
are not resolved by this document or names defendants who are
not signatories to this document, the title should he "Partial
Consent Decree."]
WHEREAS, the United States of America, on behalf of the
Administrator of the United States Environmental Protection
Agency ("Plaintiff" or "United States") filed a complaint on
[insert date] against [insert defendants' names] ("Defendants")
pursuant to [insert causes of action and relief sought, e.g. ,
Sections 106 and 107(a) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended
by the Superfund Amendments and Reauthorization Act of 1986,
Pub. L. No. 99-499, 42 U.S.C. 9606 and 9607(a) ("CERCLA") , and
Section 7003 of Resource Conservation and Recovery Act, as
amended ("RCRA") , 42 U.S.C. 6973, seeking injunctive relief
regarding the cleanup of the [insert site name], ("Site") and
recovery of costs incurred and to be incurred in responding to
the release or threat of release of hazardous substances at or
in connection with the Site] ;
WHEREAS, the United States has incurred and continues to
incur response costs in responding to the release or threat of
release of hazardous substances at or in connection with the
Site;
WHEREAS, the Regional Administrator of the United States
Environmental Protection Agency, Region _^ ("Regional Admini-
strator") has determined that prompt settlement of this case is
practicable and in the public interest;
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9834.7-/A
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WHEREAS, this settlement involves only a minor portion of
the response costs at the Site with respect to each [insert
"Defendant" or "Settling Defendant" as appropriate];
WHEREAS, Finsert the amount and toxicity criteria used to
qualify for de minimis treatment under the particular settlement,
e.g., "information currently known to the United States indicates
that the amount of hazardous substances contributed to the Site
by each Settling Defendant does not exceed % of the hazardous
substances at the Site, and that the toxic or other hazardous
effects of the hazardous substances contributed to the Site
by each Settling Defendant do not contribute disproportionately
to the cumulative toxic or other hazardous effects of the
hazardous substances at the Site"];
WHEREAS, the Regional Administrator has, therefore, deter-
mined that the amount of hazardous substances contributed to the
Site by each Settling Defendant .and th'e--£o~xic or other hazardous
effects of the hazardous substances contributed to the Site by
each Settling Defendant are minimal in comparison to other hazar-
dous substances at the Site; and
WHEREAS, the United States and the Settling Defendants agree
that settlement of this case without further litigation and with-
out the admission or adjudication of any issue of fact or law is
the most appropriate means of resolving this action;
MOW, THEREFORE, it is ORDERED, ADJUDGED and DECREED as
follows:
I. JURISDICTION
This Court has jurisdiction over the subject matter and
the parties to this action. The parties agree to be bound by
the terras of this Consent Decree and not to contest its validity
in any subsequent proceeding to implement or enforce its terms.
II. PARTIES BOUND
This Consent Decree shall apply to and be binding upon the
United States and shall apply to and be binding upon the Settling
Defendants, their directors, officers, employees, agents, succes-
sors and assigns. Each signatory to this Consent Decree repre-
sents that he or she is fully authorized to enter into the terms
and conditions of this Consent Decree and to bind legally the
Party represented by him or her.
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; 9854. 7 -
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<
(NOTE: . It may be necessary to Include a Statement of
Purpose and/or a Definitions provision.] ^
!
III. PAYMENT .
1 . Each Settling Defendant shall pay to the Hazardous
Substance Superfund [insert as appropriate either: "the amount
set forth below" or "the amount set forth in Attachment _ to
this Consent Decree, which is incorporated herein by reference,"]
within _ days [insert small amount of time, e.g. , 10, 30 or 45]
of entry of this Consent Decree.
?.'. [^OTE: If a premium payment is included in the dollar
amount to be paid by each Settling Defendant, the Consent Decree
should explain what portion of the total payment compensates the
United States for past and proje'cted cpsts (Including possible
cost overruns) and what portion. of th-e total payment is the premium
amount. Lists may be attached and incorporated by reference as"
needed. A simple example follows:
Of the total payment of 330,000 to be made by each Settling
Defendant pursuant to Paragraph 1 of this Section, $10,000 repre-
sents each Settling Defendant's share of the response costs
incurred by the United States to date and the projected costs,
including possible cost overruns, of the remedial action consistent
with the Record of Decision ("ROD") for the Site (which currently
are estimated to be between $ _ and $ _ ), and $20,000 represents
each Settling Defendant's share of any costs which may be incurred
if EPA determines that the remedial action consistent with the
ROD is not protective of public health or the environment.]
[NOTE: This model assumes that there will be only one ROD at
the site. If multiple operable unit RODs will be issued at the
site, the decree must clearly identify which ROD is being refer-
enced and should be structured to take into account the additional
remedial action contemplated in, e.g. , the payment, covenant not
to sue, and reservation of rights provisions.]
3. Each payment shall be made by certified or cashier's
check made payable to "EPA-Hazardous Substance Superfund." Each
check shall reference the site name, the name and address of the
Settling Party, and the civil action number of this case, and
shall be sent to:
EPA Superfund
P.O. Box .371003M
Pittsburgh, Pennsylvania 15251
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9834 .7-
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i
^
4. Each Settling Defendant shall simultaneously send a copy
of its check to: \
\
[Insert name and address of Regional
Attorney or Remedial Project Manager]
IV. CIVIL PENALTIES
In addition to any other remedies or sanctions available
to the United States, any Settling Defendant who fails or refuses
to comply with any term or condition of this Consent Decree
shall be subject to a civil penalty of up to $25,000 per day of
such failure or refusal pursuant to Section 122(1) of CERCLA,
42 U.S.C. 9622(1).
V. CERTIFICATION OF SETTtHJG DEFENDANTS
ii
should
[MOTE: The following language regarding disclosure of
information concerning waste contributions to the site should
be used in cases in which the jde minim is settlement is concluded
prior to completion of PRP investigations, especially where
information requests or subpoenas have not been issued:
Each Settling Defendant certifies that, to the best of its
knowledge and belief, it has provided to the United States all
information currently in its possession, or in the possession
of its officers, directors, employees, contractors or agents
which relates in any way to the ownership, operation, generation,
treatment, transportation or disposal of hazardous substances at
or in connection with the Site.]
VI. COVENANT NOT TO SUE
1. Subject to the reservations of rights in Section VII,
Paragraphs 1 and 2, of this Consent Decree, upon payment of the
amounts specified In Section III, Paragraph 1, of this Consent
Decree, the United States covenants not to sue or to take any
other civil or administrative action against any of the Settling
Defendants for "Covered Matters." "Covered Matters" shall include
any and all civil liability for reimbursement of response costs
or for injunctive relief pursuant to Sections 106 or 107(a) of
CERCLA, 42 U.S.C. 9606 or 9607(a), and Section 7003 of RCRA,
42 U.S.C. 6973, with regard to the Site.
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9834.7-/A
2. In consideration of. the United States' covenant not
to sue in Paragraph 1 of this Section, the Settling Defendants
agree not to assert any claims or causes of action against the
United States or the Hazardous Substance Superfund arising out
of Covered Matters, or to seek any other costs, damages, or
attorney's fees from the United States arising out of response
activities at the Site.
VII. RESERVATION OF RIGHTS
1. Nothing in this Consent Decree is intended to be nor
shall it be construed as a release or covenant not to sue for
any claim or cause of action, administrative or judicial, civil
or criminal, past or future, in law or in equity, which the
United States may have against any of the Settling Defendants
for: .-. . - : ;.
- * " - "'.~\ ~
a) any liability as a result of failure to make the
payments required by Section III, Paragraph 1, of this Consent
Decree;-, or
b) any matters not expressly included in Covered
Matters, including, without limitation,.1 any liability for damages
to natural resources. [NOTE: This natural resource damages
reservation must be included unless the Federal natural resource
trustee has agreed to a covenant not to sue pursuant to Section
122(j)(2) of CERCLA.- In accordance with Section 122(J)(1) of
CERCLA, where the release or threatened release of any hazardous
substance at the site may have resulted in damages to natural
resources under the trusteeship of the United States, the Region
should notify the Federal natural resource trustee of the
negotiations and encourage the trustee to participate in the
negotiations.]
2. Nothing in this Consent Decree constitutes a covenant
not to sue or to take action or otherwise limits the ability of
the United States to seek or obtain further relief from any of
the Settling Defendants, and the covenant not to sue in Section
VI, Paragraph 1, of this Consent Decree is null and void, if:
a) information not currently known to the United
States is discovered which indicates that any Settling Defendant
contributed hazardous substances to the Site in such greater
amount or of such greater toxic or other hazardous effects that
the Settling Defendant no longer qualifies as a d_e minimis party
at the Site because [insert volume and toxicity criteria, e.g.,
"the Settling Defendant contributed greater than % of the
I
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9834.7-/A
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hazardous substances ac che Site or contributed disproportion-
ately to the cumulative toxic or other hazardous effects of the
hazardous substances at the Site"];
[NOTE: Unless a premium payment is being made under Section
til of this Consent Decree which compensates the United States
for taking the risk that the events noted in the reservations of
rights in Subparagraphs (b) and (c) below may occur, those reser-
vations should be included. A premium may be accepted in lieu of
one or both of the reservations of rights in Subparagraphs (b)
and (c) below:
b) costs incurred during the completion of the remedial
action [if ROD is completed, insert "consistent with the Record
of Decision"] at the Site exceed [insert dollar amount of cost
ceiling]; or
c) the United States -determines, based upon conditions
at the Site, previously unknown to the United States, or informa-
tion received, in whole or in part, after entry of this Consent
Decree, that the remedial action [if ROD is completed, insert
"consistent with the Record of Decision"] is not protective of
public health or the environment.]
3. Nothing in this Consent Decree is intended as a release
or covenant not to sue for any claim or cause of action, admini-
strative or judicial, civil or criminal, past or future, in law
or in equity, which the United States may have against any person,
fira, corporation or other entity not a signatory to this Consent
Decree.
4. The United States and the Settling Defendants agree that
the actions undertaken by the Settling Defendants in accordance
with this Consent Decree do not constitute an admission of any
liability by any Settling Defendant.
VIII. CONTRIBUTION PROTECTION
Subject to the reservations of rights in Section VII, Para-
graphs 1 and 2, of this Consent Decree, the United States agrees
that by entering into and carrying out the terms of the Consent
Decree, each Settling Defendant will have resolved its liability
to the United States for Covered Matters pursuant to Section
122(g)(5) of CERCLA, 42 U.S.C. 9622(g)(5), and shall not be
liable for claims for contribution for Covered Matters.
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9834,7-//V
j IX. PUBLIC COMMENT
This Consent Decree shall he subject to a thirty-day
public comment period. The United States may withdraw its
consent to this Consent Decree if comments received disclose
facts or considerations which indicate that this Consent Decree
is inappropriate, improper or inadequate.
X. EFFECTIVE DATE
The effective date of this Consent Decree shall be the
date of entry by this Court, following public comment pursuant
to Section IX of this Consent Decree.
The United States of America. - [-Th/e Settling Defendants]
"~.i '
Hv: By:
SO ORDERED this day of , 198_.
Unltea States District Judge
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9834.7-/4
ATTACHMENT 2
INTERIM MODEL SECTION I22(g)(4) ADMINISTRATIVE ORDER ON CONSENT
£M THE MATTER OF: )
) U.S. EPA Docket No.
[Insert Site Name and Location] )
• )
Proceeding under Section 122(g)(4) ) ADMINISTRATIVE ORDER
of the Comprehensive Environmental ) ON CONSENT
Response, Compensation, and Lia- )
bility Act of 1930, as amended, )
42 U.S.C. 9622(g)(4) )
I.
This Administrative Order on Consent ("Consent Order") is
issued pursuant to the authority veste.d in the President of the
United States by Section 122(g)(4) of the Comprehensive Environ-
mental Response, Compensation, and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of
1986 ("CERCLA"), Pub. L. No. 99-499, 42 U.S.C. 9622(g)(4), to
reach settlements in actions under Section 106 or 107(a) of
CERCLA, 42 U.S.C. 9606 or 9607(a). The authority vested in the
President has been delegated to the Administrator of the United
States Environmental Protection Agency ("EPA") by Executive Order
12580, 52 Fed. Reg. 2923 (Jan. 29, 1987) and further delegated
to the Regional Administrators of the EPA by EPA Delegation No.
14-14-E (Sept. 13, 1987).
This Administrative Order on Consent is issued to [insert
names or reference attached list of respondents] ("Respondents").
Each Respondent agrees to undertake all actions, required by the
terms and conditions of this Consent Order. Each Respondent
further consents to and will not contest EPA's jurisdiction to
issue this Consent Order or to implement or enforce its terns.
[NOTE: It may be necessary to include a Statement of
Purpose and/or a Definitions provision.]
II. STATEMENT OF FACTS
1. [In one or more paragraphs, insert site name, location,
description, NPL status and brief statement of historical hazar-
dous substance activity at the site.] g
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9834,7-
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2. Hazardous substances wi.chi.ri Che definicion of SecCion
101(14) of CERCLA, 42 U.S.C. 9601(14), have been or are chreacened
Co be released inco Che environmenC ac or from Che Sice. [NOTE:
Addicional information abouC specific hazardous subscances presenc
on- or off-sice may be included.]
3. As a result of Che release or Chreacened release of hazar-
dous subscances inco the environment, EPA has undertaken response
action at the Site under Section 104 of CERCLA, 42 U.S.C. 9604,
and will undertake response action in the future. [NOTE: A brief
recitation of the specific response action undertaken or planned
for the site, e.g., whether an RI/FS and ROD have been completed,
should be included.]
4. In performing this response action-, EPA has incurred and
will continue Co incur response costs at or in connection with the
Site. [NOTE: The dollar amount'of costs.;-incurred as of a specific
date should be included.] • • ' "- " -.-.-•-
5. [Identify each respondent and its relationship to the
site. If respondents are numerous, state generally that "Infor-
mation cxirrently known to EPA indicates that each Respondent
listed on Attachment to this .Consent Order, which is incor-
porated herein by reference, arranged for disposal or treatment,
or arranged with a transporter for disposal or treatment, of a
hazardous substance owned or possessed by such Respondent at the
Sice, or accepted a hazardous substance for transport to the Sice."]
6. [In one or more paragraphs, present in summary fashion
the factual basis for EPA s determination in Section III below
that the respondents are de minimis parties, i.e., that the
amount of hazardous substances contributed to the site by each
respondent and the toxic or other hazardous effects of the
substances contributed to the site by each respondent are minimal
in comparison to other hazardous substances at the site. The
language will vary depending upon the criteria established for
the particular settlement. An example follows:
Information currently known to EPA indicates that the anounc
of hazardous substances contributed to the Site by each Respondent
does not exceed % of the hazardous substances at the Sice,
and Chat the toxic or other hazardous effects of the subscances
contributed by each Respondent to the Site do not contribute
disproportionately to the cumulative toxic or other hazardous
effects of the hazardous substances at the Site. [NOTE: An
attachment listing the volume and general nature of the hazardous
substances contributed to the site by each respondent, to the
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9834, 7-/A-
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extent available, should be attached and incorporated by reference.
The total estimated volume of hazardous substances at the site
should be noted on the attachment.]]
7. In evaluating the settlement embodied in this Consent
Order, EPA has considered the potential costs of remediating
contamination at or in connection with the Site taking into
account possible cost overruns in completing the remedial action
fif ROD is completed, insert "consistent with the Record of
Decision for this Site"], and possible future costs if the
remedial action [if ROD is completed, insert "consistent with
the Record of Decision for this Site"] is not protective of
public health or the environment,
%
8. Payments required to be made by each Respondent pursuant
to this Consent Order are a minor portion of the total response
costs at the Site which EPA, based upo/n: currently available infor-
mation, estimates to be betwe'en-$ ah'd>:-$_ . [NOTE: The
dollar figure inserted should- include the total response costs
incurred to date as well as the Agency's projection of the total
response costs to be incurred during completion of the remedial
action at the site.]
9. EPA has identified persons other than the Respondents
who owned or operated the Site, or who arranged for disposal or
treatment, or arranged with a transporter for disposal or treatment,
of a hazardous substance owned or possessed by such person at the
Site, or who accepted a hazardous substance for transport to the
Site. EPA has considered the nature of its case against these
non-settling parties in evaluating the settlement embodied in
this Consent Order.
III. DETERMINATIONS
Based .upon the Findings of Fact set forth above and on the
administrative record for this Site, EPA has determined that:
1. The [insert site name] site is a "facility" as that term
is defined in Section 101(9) of CERCLA, 42 U.S.C. 9601(9).
2. Each Respondent is a "person" as that term is defined in
Section 101(21) of CERCLA, 42 U.S.C. 9601(21).
3. Each Respondent is a potentially responsible party within
the meaning of Section 107(a) and 122(g)(1) of CERCLA, 42 U.S.C.
9607(a) and 9622(g)(1).
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9834
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4. The past, present or future migration of hazardous
substances from the Site constitutes an actual or threatened
"release" as that term is defined in Se.ction 101(22) of CERCLA,
42 U.S.C. 9601(22).
5. Prompt settlement with the Respondents is practicable
and in the public interest within the meaning of Section 122
(*)(1) of CERCLA, 42 U.S.C. 9622(g)(1).
5. This Consent Order involves only a minor portion of the
response costs at the Site with respect to each Respondent
.pursuant to Section 122(g)(1) of CERCLA, 42 U.S.C. ,9.622(g) (1) .-
7. The amount of hazardous substances contributed to the
Site by each Respondent and the toxic or other hazardous effects
of the hazardous substances contributed to the Site by each
Respondent are minimal in comparison, to lo.ther hazardous substances
at the Site pursuant to Sect-ion-122(g5 O')'(A) of CERCLA, 42 U.S.C.
9622(g)(1)(A).
-IV. ORDER
Based upon the administrative record for this Site and the
Findings; of Fact and Determinations set forth above, and in
consideration of the promises and covenants set forth herein,
it is hereby AGREED TO AND ORDERED:
PAYMENT
1. Each Respondent shall pay to the Hazardous Substance
Superfund [insert as appropriate either: "the amount set forth
below" or "the amount set forth in Attachment to this
Consent Order, which is incorporated herein by reference,"]
within days [insert small amount of time, e.g., 10, 30 or
45] of the effective date of this Consent Order.
2. [NOTE: If a premium payment is included in the dollar
amount to be paid by each respondent, the Consent Order should
explain what portion of the total payment compensates EPA for
past and projected costs (including possible cost overruns)
and what portion of the total payment is the premium amount.
Lists may be attached and incorporated by reference as needed.
A simple example follows:
Of the total payment of 330,000 to be made by each Respondent
pursuant to Paragraph 1 of this Section, $10,000 represents each
I
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9834.7-M
- 5 -
Respondent's share of che response costs incurred hy EPA Co date
and the projected costs, including possible cost overruns, of the
remedial action consistent with the Record of Decision '("ROD")
for this Site (which currently are estimated by EPA to be between
S and S ), and 320,000 represents each Respondent's share of
any costs which may be incurred if EPA determines that the remedial
action consistent with the ROD is not protective of public health
or the environment.]
[MOTE: This model assumes that there will be only one ROD at the
site. If multiple operable unit RODs will be issued at the site,
the order must clearly identify which ROD is being referenced and
should be structured to tafce into account the additional remedial
action contemplated in, e.g., the payment, covenant not to sue,
and reservation of rights provisions.]
3. Each payment shall be- made -bjr certified or cashier's
check made payable to "EPA-Ha'zardous Substance Superfund." Each
check shall reference the site name, the name and address of the
Respondent, and the EPA docket number for this action, and shall
be sent to:
EPA Superfund-
.P.O. Box 371003M
Pittsburgh, Pennsylvania 15251
4. Each Respondent shall simultaneously send a copy of its
check to:
[Insert name and address of Regional
Attorney or Remedial Project Manager]
CIVIL PENALTIES
5. In addition to any other remedies or sanctions available
to EPA, any Respondent who fails or refuses to comply with any
terra or condition of this Consent Order shall be subject to a
civil penalty of up to $25,000 per day of such failure or refusal
pursuant Co Section 122(1) of CERCLA, 42 U.S.C. 9622(1).
CERTIFICATION OF RESPONDENTS
6. [MOTE: The following language regarding disclosure of
information concerning waste contributions to the site should be
used in cases in which the de minimis settlements is concluded
prior to completion of PRP investigations, especially where infor-
mation requests or subpoenas have not been issued: I
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Each Respondent certifies that, to the best of its knowledge
and belief, it has provided to EPA all information currently in
its possession, or in the possession of its officers, directors,
employees, contractors or agents, which relates in any way to the
ownership, operation, generation, treatment, transportation or
disposal of hazardous substances at or in connection with the Site.l
COVENANT NOT TO SUE
7. Subject to the reservations of rights in Section IV,
Paragraphs 9 and 10, of this Consent Order, upon payment of the
amounts specified in Section IV, Paragraph 1, of this Consent
Order, EPA. covenants not to sue or to take any other civil or
administrative action against any of the Respondents for "Covered
Matters." "Covered Matters" shall include any and all civil
liability for reimbursement of respohse--\,c:osts or for injunctive
relief pursuant to Sections 106 "or 107(a) of CERCLA, 42 U.S.C. '
9606 or 9607(a), or Section 7003 of the Resource Conservation
and Recovery Act, as amended, 42 U.S.C. 6973, with regard to the
Site.
8. In consideration of EPA1 s covenant not to sue in Section
IV, Paragraph 7, of this Consent Order, the Respondents agree
not to assert any claims or causes of action against the United
States or the Hazardous Substance Superfund arising out of Covered
Matters, or to seek any other costs, damages, or attorney's fees
from the United States arising out of response activities at the
Site.
RESERVATION OF RIGHTS
9. Nothing In this Consent Order is intended to be nor shall
it be construed as a release or covenant not to sue for any clain
or cause of- action, administrative or judicial, civil or criminal,
past or future, at law or in equity, which the United States,
including EPA, may have against any of the Respondents for:
a) any liability as a result of failure to make the
payments required by Section IV, Paragraph 1, of this Consent
Order; or
b) any matters not expressly included in Covered Matters,
including, without limitation, any liability for damages to natural
resources. [MOTE: This natural resource damage reservation must
be included unless the Federal natural resource trustee has agreed
to a covenant not to sue pursuant to Section 122(j)(2) of CERCLA.
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In accordance with Section 122(j)(1) of CERCLA, where the release
or threatened release of any hazardous substance at the site may
have resulted in damages to natural resources under the trustee-
ship of the United States, the Region should notify the Federal
natural resource trustee of the negotiations and encourage the
trustee to participate in the negotiations.!
in. Nothing in this Consent Order constitutes a covenant
not to sue or to take action or otherwise limits the ability of
the United States, including EPA, to seek or obtain further relief
from any of the Respondents, and the covenant not to sue in Section
IV, Paragraph 7, of this Consent Order is null and void, if:
a) information not currently known to EPA is discovered
which indicates that any Respondent contributed hazardous substances
to the Site in such greater amount or of such greater toxic or
other hazardous effects that the Res-pandeiyt no longer qualifies
as a de minimis party at the 'Si'ce becau'sT-e" [insert volume and
toxicity criteria from Paragraph 7 of the Findings of Fact, e.g.,
"the Respondent contributed greater than % of the hazardous
substances at the Site or contributed hazardous substances which
contributed disproportionately to the cumulative toxic or other
hazardous effects of the hazardous substances at the Site"];
[MOTE: Unless a premium payment is being made under Section
IV, Paragraph 1, which compensates EPA for the risk that the events
noted in the reservations of rights in Subparagraphs (b) and (c)
below may occur, those reservations should be included. A premium
•nay be accepted in lieu of one or both of the reservations in
Subparagraphs (b) and (c) below:
b) costs incurred during the completion of the remedial
action [if ROD is completed, insert "consistent with the Record
of Decision"] at the Site exceed [insert dollar amount of cost
ceiling]; or
c) EPA determines, based upon conditions at the Site,
previously unknown to EPA, or information received, in whole or
in part, after entry of this Consent Order, that the remedial
action [if ROD is completed, insert "consistent with the Record of
Decision"] is not protective of public health or the environment.
11. Nothing in this Consent Order is intended as a release
or covenant not to sue for any claim or cause of action, admini-
strative or judicial, civil or criminal, past or future, in law
or in equity, which the United States, including EPA, may have
against any person, firm, corporation or other entity not a
signatory to this Consent Order.
I
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12. EPA and the Respondents agree that the actions under-
taken by the Respondents in accordance with this Consent Order
do not constitute an admission of any liability by any Respondent.
The Respondents do not admit and retain the right to controvert
in any subsequent proceedings, other than proceedings to implement
or enforce this Consent Order, the validity of the Findings of
Fact or Determinations contained in this Consent Order.
CONTRIBUTION PROTECTION
13. Subject to the reservations of rights in Section IV,
Paragraphs 9 and 10, of this Consent Order, EPA agrees that by
entering into and carrying out the terms of this Consent Order,
each Respondent will have resolved its liability to the United
States for Covered Matters pursuant to Section 122(g)(5) of
CERCLA, 42 U.S.C. 9622(g) (5) ,-arid shall; that be liable for claims
for contribution for Covered"Matters." -V1
PARTIES BOUND
14. This Consent Order.shall apply to and be binding upon
the Respondents and their directors, officers, employees, agents,
successors and assigns. Each signatory to this Consent Order
represents that he or she is fully authorized to enter into the
terms and conditions of this Consent Order and to bind legally
the Respondent represented by him or her.
PUBLIC COMMENT
15. This Consent Order shall he subject to a thirty-day
public comment period pursuant to Section 122(i) of CERCLA, 42
U.S.C. 9622(1). In accordance with Section 122(1)(3) of CERCLA,
42 U.S.C. 9622(i)(3), EPA may withdraw consent to this Consent
Order if comments received disclose facts or considerations which
indicate that this Consent Order is inappropriate, improper or
inadequate.
ATTORNEY GENERAL APPROVAL
16. The Attorney General or his designee has issued prior
written approval of the settlement embodied in this Consent Order
in accordance with Section 122(g)(4) of SARA. [NOTE: Attorney
General approval usually will be required for de minimis consent
orders because the total past and projected response costs at the
site will exceed 3500,000, excluding interest. In the event that
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Attorney General approval is not required, the order should not
include this Paragraph 16, but should include the following as a
separate numbered paragraph in the Determinations section (Section
III) above: "The Regional Administrator of EPA, Region _ , has
determined that the total response costs incurred to date at or
in connection with the Site do not exceed S500.000, excluding
interest, and that, based upon information currently known to EPA,
total response costs at or in connection with the Site are not
anticipated to exceed 3500,000, excluding interest, in the future.
Use of this determination requires changes to the model Findings
of Fact in Section II above; specifically, Paragraph 3 of the
Findings should not state that further response action will be
underaken in the future, and Paragraph 4 of the Findings should
not state that SPA will incur response costs in the future.]
EFFECT' I'VE PATE .;-..
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17. The effective date of this Consent Order shall be the
date upon which EPA issues written notice to the Respondents that
the public comment period pursuant to Section IV, Paragraph 15,
of this Consent Order has closed and that comments received, if
any, do not require modification of or EPA withdrawal from this
Consent Order.
IT IS SO AGREED AND ORDERED:
[Respondent(s) ]
3y:
[Name] [Date]
U.S. Environmental Protection Agency
By:
[Name] [Date]
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