United States
Environmental Protection
Agency
0/fice of
Solid Wast* and
Ernergency Response
&EPA
DIRECTIVE NUMBER: 9835.3-2A
TITLEl Model Administrative .Order on Consent for
Remedial Investigation/Feasibility Study
APPROVAL DATE:-
EFFECTIVE DATE:
ORIGINATING OFFICE: OWPE
Q FINAL
D DRAFT
LEVEL OF DRAFT
— Signed by AA or OAA
Da — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
SWER OSWER OSWER
DIRECTIVE DIRECTIVE Dl
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&EPA oswER DirectTvelnifiation Request ^
Name of Contact Person
Stephen El 1 *
Mail Code Office Teiepnone Code
OS-S10 OWPE 475-9803
3. Title
Model Administrative Order on Consent for Remedial Investigation/Feasibility Study
4. Summary of Directive imcuce one! statement of purpose)
Revise previous version of Feb. 5, 1990 to reflect changes concerning new policy
that EPA will perform all rsik assessments at PRP-lead sites.
5. Keywords
6a. Does This Directive Supersede Previous
b. Does It Supplement Previous Directive(s)
7. Draft Level
x A - Signed by AA/OAA
Directive^!? ~ 1 11
No X Yes What directive (number, title)
9835. 3-1A, Same Title
X NO yes What directive (number, title)
8 - Signed by Office Director C - For Review & Comment 0 - in Devefopmen'
'——* _ /
8. Document to be distributed to States bv Headauarters? Yes v No
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
IvJ. O>^V/S^*^VA._ \A) vXA^s-o-os^
10. Name and Title of Approving Official
Date
7/<*/T
Date
EPA Form 1315-17 (Rev. 5-«7> Previous editions are obsolete.
OSWER Of'VER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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SEPA
U.S. Environmental Protection Agency
OWPE Directive Initiation Slip
Namo of Program Contact Person:
Stephen Ells
Mall Coda:
OS-510
Offica:
OWPE
Telephone:
475-9803
Document Number:
9835.3-2A
Does document supersede a previous one? Q No Q Yes Doc. No. 9835.3-1A
Does document supplement a previous one? a No Q Yes Doc. No.
Title: Model Administrative Order on Consent for Remedial Investigation/Feasibility Study
Document Abstract:
Revises previous Model Order which Regions use in preparing site-specific RI/FS
Consent Orders. This version reflects the change in EPA policy whereby EPA will not
enter into any Consent Orders with PRPs where the PRPs perfrom the risk assessment
portion of the RI/FS. .
Keywords:
Number of document pages (excluding OSWER
Initiation Request sheets):
28
Target audience(s):
RPMs, ORCs
Special requirements:
Planned issue date:
Document Number Assigned (date):
Document Status:
Signed
Date on Title Page:
July 2, 1991
Transmittal Memo signed by:
AA, Don Clay
Final distribution to:
Q Waste Mgt. Div. Dirs. Regs. I-X
19 Superfund Branch Chiefs
Q EDRS: Q Hard copy Q Diskette
9 OSWER Directive Coordinator
Q Other
Q RCRA Branch Chiefs
@ RAs. Regions I-X
Q Depository libraries
Q Regional paralegals
12NTIS
QGPO
Q EPA Library
G States by HQ
Will final document be releasable to the public? OEYes Q No
If not, cite appropriate FOIA exemption(s):
Will document be publicly available at a later date? QYes QNo
If yes, enter approximate time frame:
Comments:
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INSTRUCTIONS
In the top half of this form, you will describe the document itself. In the bottom half, you will give informa-^
tion on the document's review and distribution.
Some of the items requested are self-explanatory. Those that are not are explained below. If you need
assistance, see the OWPE Directives Coordinator (Dariene Williams, mail code OS-505).
Document Number.
Document Abstract.
Keywords.
Number of Document Pages.
Target Audience(s).
Special Requirements.
Planned Issue Date.
Document Number Assigned.
Document Status.
Date on Title Page.
Reusability to the Public.
Comments.
This will be assigned by the OWPE Directives Coordinator.
This should describe the content of the document. It will be used by
the National Technical Information Service and the OERR
Superfund Publications Catalog. The abstract may be revised as
the document progresses from draft to final.
Select keywords from the attached list.
Count all pages; exclude the OSWER Initiation Request sheet. This
number may change as the document progresses from draft to final.
Enter the group or groups who are the intended recipients of the
information, e.g.. Regional counsels, RPMs, the general public, etc.
Note any production requirements that may require extra attention.
These could include cut tabs, colors, special bindings, diskettes,
etc. SPECIAL PRODUCTION REQUIREMENTS ARE DISCOUR-
AGED UNLESS THEY ARE ABSOLUTELY NECESSARY.
This is the date on which you want to release the final document.
Please note if there is a firm requirement, such as a statutory or
court-ordered deadline.
The OWPE Directives Coordinator will give you the date to enter
here.
Note the current version of the document, such as Working Draft,
Regional Review Copy, Final, etc. This information will allow the
OWPE Directives Coordinator to track your document through the
various stages of production.
Enter the date on the title page of the document referred to in the
"Document Status" entry in the first column.
If you are not sure whether your document is (or will be) releasable
to the public, contact the OWPE Directives Coordinator.
Note any other information that will help the OWPE Directives
Coordinator review, issue, and distribute your document.
Send twenty copies of each Directive to the OWPE Directives Coordinator (Dariene Williams, mail code
OS-505) within 5 working days of initial signoff by OWPE's Office Director or the AA/OSWER.
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OSWER Directive Number 9835.3-2A
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION [#]
IN THE MATTER OF: )
)
[SITE NAME] [SITE NUMBER] )
)
[COMPANY NAME )
Address] )
)
RESPONDENT[S] )
)
)
Proceeding Under Sections 104, 122(a), ) U.S. EPA Docket No.
and 122(d)(3) of the Comprehensive )
Environmental Response, Compensation, )
and Liability Act as amended )
(42 U.S.C SS 9604, 9622(a), )
9622(d)(3)). )
ADMINISTRATIVE ORDER ON CONSENT
FOR REMEDIAL INVESTIGATION/FEASIBILITY STUDY
Operable Unit No.
I. INTRODUCTION
1. This Administrative Order on Consent (Consent Order) is
entered into voluntarily by the United States Environmental
Protection Agency (EPA) and [name of Respondent(s)]
(Respondent(s)'). The Consent Order concerns the preparation of,
performance of, and reimbursement for all costs incurred by EPA
in connection with a remedial investigation and feasibility study
(RI/FS) for the [operable unit consisting of] at the [site name]
located in [site location] ("site") [as well as past response
costs].
II. JURISDICTION
2. This Consent Order is issued under the authority vested
in the President of the United States by sections 104, 122(a) and
122(d)(3) of the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended, 42 U.S.C. §§ 9604,
•9.62.2(a)-, 9622(d)(3) (CERCLA) . This authority was delegated to
the Administrator of EPA on January 23, 1987, by Executive Order
12580, 52 Fed. Reg. 2926 (1987), and further delegated to
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OSWER Directive Number 9835.3-2A
Regional Administrators on September 13, 1987, by EPA Delegation
No. 14-14-C. [This authority has been redelegated by the
Regional Administrator to .]
3. The Respondent(s) agrees to undertake all actions
required by the terms and conditions of this Consent Order. In
any action by EPA or the United States to enforce the terms of
this Consent Order, Respondent(s) consents to and agrees not to
contest the authority or jurisdiction of the Regional
Administrator to issue or enforce this Consent Order, and agrees
not to contest the validity of this Order or its terms.
III. PARTIES BOUND
4. This Consent Order shall apply to and be binding upon
EPA and shall be binding upon the Respondent(s) , its agents,
successors, assigns, officers, directors and principals.
Respondent(s) is jointly and severally responsible for carrying
out all actions required of it by this Consent Order. The
signatories to this Consent Order certify that they are
authorized to execute and legally bind the parties they represent
to this Consent Order. No change in the ownership or corporate
status of the Respondent(s) or of the facility or site shall
alter Respondent(s)' responsibilities under this Consent Order.
5. The' Respondent(s) shall provide a copy of this Consent
Order to any subsequent owners or successors before ownership
rights or stock or assets in a corporate acquisition are
transferred. Respondent(s) shall provide a copy of this Consent
Order to all contractors, subcontractors, laboratories, and
consultants which are retained to conduct any work performed
under this Consent Order, within 14 days after the effective date
of this Consent Order or the date of retaining their services,
whichever is later. Respondent(s) shall condition any such
contracts upon satisfactory compliance with this Consent Order.
Notwithstanding the terms of any contract, Respondent(s) is
responsible for compliance with this Consent Order and for
ensuring that its subsidiaries, employees, contractors,
consultants, subcontractors, agents and attorneys comply with
this Consent Order.
IV. STATEMENT OF PURPOSE
6. In entering into this Consent Order, the objectives of
EPA and the Respondent(s) are: (a) to determine the nature and
extent of contamination and any threat to the public health,
welfare, or the environment caused by the release or threatened
release of hazardous substances, pollutants or contaminants at or
from the site or facility, by conducting a remedial
investigation; (b) to determine and evaluate alternatives for
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OSWER Directive Number 9835. 3-2A
remedial action (if any) to prevent, mitigate or otherwise
respond to or remedy any release or threatened release of
hazardous substances, pollutants, or contaminants at or from the
site or facility, by conducting a feasibility study; and (c) to
recover response and oversight costs incurred by EPA with respect
to this Consent Order.
7. The activities conducted under this Consent Order are
subject to approval by EPA and shall provide all appropriate
necessary information for the RI/FS, with the exception of the
baseline risk assessment performed by EPA, and for a record of
decision that is consistent with CERCLA and the National
Contingency Plan (NCP), 40 C.F.R. Part 300. The activities
conducted under this Consent Order shall be conducted in
compliance with all applicable EPA guidances, policies, and
procedures.
V. FINDINGS OF FACT
[Note: Provide enough information in this section for the
Order to stand on its own. The findings of fact need to
establish and justify the conclusions of law set forth in
the Order.]
8. [Identify the site with the name, location, and
description, including geography, description of aquatic and
terrestrial communities, and brief site history.]
9. [Provide information that there are hazardous
substances at the site by listing the specific chemicals found at
the site, and their locations, concentrations and quantities
where known, including description of studies conducted to find
the hazardous substances.]
10. [Describe actual and/or potential release and
contaminant migration pathways, making clear that these are not
exclusive.]
11. [Briefly note some health/environmental effects of some
major contaminants.]
12. [State that the site is on the [proposed] National
Priorities List. Reference section 105 of CERCLA and Federal
Register in which notice of listing appeared.]
13. [Identify each Respondent, i.e., name/business.]
14. [For each Respondent, state the connection between the
Respondent and the site, e.g., owner or operator of a hazardous
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OSWER Directive Number 9835.3-2A
waste site, or person who arranged for disposal or treatment of,
or transporter of hazardous substances found at the site.]
15. [Identify prior response and enforcement actions, if
any, taken at the site.]
VI. CONCLUSIONS OF LAW AND DETERMINATIONS
16. The site is a "facility" as defined in section 101(9)
Of CERCLA, 42 U.S.C. §9601(9).
17. Wastes and constituents thereof [at the site, sent to
the site, disposed of at the site, and/or transported to the
site] identified in paragraph 9 are "hazardous substances" as
defined in section 101(14) of CERCLA, 42 U.S.C. §9601(14), or
constitute "any pollutant or contaminant" that may present an
imminent and substantial danger to public health or welfare under
section 104(a)(1) of CERCLA.
18. The presence of hazardous substances at the site or the
past, present or potential migration of hazardous substances
currently located at or emanating from the site, constitute
actual and/or threatened "releases" as defined in section 101(22)
of CERCLA, 42 U.S.C. §9601(22).
19. Respondent(s) is a "person" as defined in section
101(21) of CERCLA, 42 U.S.C. §9601(21).
20. Respondent(s) is a responsible party under sections
104, 107 and 122 Of CERCLA, 42 U.S.C. §§ 9604, 9607 and 9622.
21. The actions required by this Consent Order are
necessary to protect the public health or welfare or the
environment, are in the public interest, 42 U.S.C. §9622(a), are
consistent with CERCLA and the NCP, 42 U.S.C. §§ 9604(a)(l),
9622(a), and will expedite effective remedial action and minimize
litigation, 42 U.S.C. §9622(a).
VII.; NOTICE -
22. By providing a copy of this Consent Order to the state,
EPA is notifying the state of [name of state] that this Order is
being issued and that EPA is the lead agency for coordinating,
overseeing, and enforcing the response action required by the
Order.
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OSWER Directive Number 9835. 3-2A
VIII. WORK TO BE PERFORMED
23. All work performed under this Consent Order shall be
under the direction and supervision of qualified personnel.
Within 30 days of the effective date of this Order, and before
the work outlined below begins, the Respondent(s) shall notify
EPA in writing of the names, titles, and qualifications of the
personnel, including contractors, subcontractors, consultants and
laboratories to be used in carrying out such work. The
qualifications of the persons undertaking the work for
Respondent(s) shall be subject to EPA's review, for verification
that such persons meet minimum technical background and
experience requirements. This Order is contingent on
Respondent(s)' demonstration to EPA's satisfaction that
Respondent(s) is qualified to perform properly and promptly the
actions set forth in this Consent Order. If EPA disapproves in
writing of any person(s)• technical qualifications, Respondent(s)
shall notify EPA of the identity and qualifications of the
replacement(s) within 30 days of the written notice. If EPA
subsequently disapproves of the replacement(s), EPA reserves the
right to terminate this Order and to conduct a complete RI/FS,
and to seek reimbursement for costs and penalties from
Respondent(s). During the course of the RI/FS, Respondent(s)
shall notify EPA in writing of any changes or additions in the
personnel used to carry out such work, providing their names,
titles, and qualifications. EPA shall have the same right to
approve changes and additions to personnel as it has hereunder
regarding the initial notification.
24. Respondent(s) shall conduct activities and submit
deliverables as provided by the attached RI/FS Statement of Work,
which is incorporated by reference, for the development of the
RI/FS. All such work shall be conducted in accordance with
CERCLA, the NCP, and EPA guidance including, but not limited to,
the "Interim Final Guidance for Conducting Remedial
Investigations and Feasibility Studies under CERCLA" (OSWER
Directive # 9355.3-01), "Guidance for Data Useability in Risk
Assessment" (OSWER Directive #9285.7-05) and guidances referenced
therein, and guidances referenced in the Statement of Work, as
may be amended or modified by EPA. The general activities that
Respondent(s) is required to perform are identified below,
followed by a list of deliverables. The tasks that Respondent(s)
must perform are described more fully in the Statement of Work
and guidances. The activities and deliverables identified below
shall be developed as provisions in the work plan and sampling
and analysis plan, and shall be submitted to EPA as provided.
All work performed under this Consent Order shall be in
accordance with the schedules herein, and in full accordance with
the standards, specifications, and other requirements of the work
plan and sampling and analysis plan, as initially approved or
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OSWER Directive Number 9835.3-2A
modified by EPA, and as may be amended or modified by EPA from
time to time. For the purposes of this Order, day means calendar
day unless otherwise noted in the Order.
A. Task I; Scoping. EPA determines the site-specific objectives
of the RI/FS and devises a general management approach for the
site, as stated in the attached Statement of Work. Respondent(s)
shall conduct the remainder of scoping activities as described in
the attached Statement of Work and referenced guidances. At the
conclusion of the project planning phase, Respondent(s) shall
provide EPA with the following deliverables:
1. RI/FS Work Plan. Within days of the effective date
of this Order, Respondent(s) shall submit to EPA a complete
RI/FS work plan. If EPA disapproves of or requires
revisions to the RI/FS work plan, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised work
plan which is responsive to the directions in all EPA
comments, within days of receiving EPA's comments.
2. Sampling and Analysis Plan. Within days of the
effective date of this Order, Respondent(s) shall submit to
EPA the sampling and analysis plan. This plan shall consist
of a field sampling plan (FSP) and a quality assurance
project plan (QAPjP), as described in the Statement of Work
and guidances. If EPA disapproves of or requires revisions
to the sampling and analysis plan, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised
sampling and analysis plan which is responsive to the
directions in all EPA comments, within days of receiving
EPA's comments.
3. Site Health and Safety Plan. Within days of the
effective date of this Order, Respondent(s) shall submit to
EPA the site health and safety plan.
Following approval or modification by EPA, the RI/FS work
plan and the sampling and analysis plan are incorporated by
reference herein.
B. Task II; Community Relations Plan. EPA will prepare a
community relations plan, in accordance with EPA guidance and the
NCP. Respondent(s) shall provide information supporting EPA's
community relations programs.
C. Task III; Site Characterization. Following EPA approval or
modification of the work plan and sampling and analysis plan,
Respondent(s) shall implement the provisions of these plans to
characterize the site. Respondent(s) shall complete site
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OSWER Directive Number 9835.3-2A
characterization within months of EPA approval or
modification of the work plan and sampling and analysis plan.
Respondent(s) shall provide EPA with analytical data within
days of each sampling activity, in a electronic format (i.e.,
computer disk) showing the location, medium and results. Within
7 days of completion of field activities, Respondent(s) shall
notify EPA in writing. During site characterization,
Respondent(»> shall provide EPA with the following deliverables,
as described in the Statement of Work and work plan:
1. Technical Memorandum on Modeling of Site
Characteristics. Where Respondent(s) proposes that
modeling is appropriate, within days of the
initiation of site characterization, Respondent(s)
shall submit a technical memorandum on modeling of site
characteristics, as described in the Statement of Work.
If EPA disapproves of or requires revisions to the
technical memorandum on modeling of site
characteristics, in whole or in part, Respondent(s)
shall amend and submit to EPA a revised technical
memorandum on modeling of site characteristics which is
responsive to the directions in all EPA comments,
within days of receiving EPA's comments.
2.; Preliminary Site Characterization Summary. Within
days of completion of the field sampling and
analysis, as specified in the work plan, Respondent(s)
shall submit a site characterization summary to EPA.
D. Draft Remedial Investigation Report [See Task III of the
attached Statement of Work.] Within days of receipt,
respondent(s) shall submit a draft remedial investigation report
consistent with the Statement of Work, work plan, sampling and
analysis plan. If EPA disapproves of or requires revisions to
the remedial investigation report, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised remedial
investigation report which is responsive to the directions in all
EPA comments, within days of receiving EPA's comments.
E. Task IV; Treatability Studies. Respondent(s) shall conduct
treatability studies, except where Respondent(s) can demonstrate
to EPA's satisfaction that they are not needed. Major components
of the treatability studies include determination of the need for
and scope of studies, the design of the studies, and the
completion of the studies, as described in the Statement of Work.
During treatability studies, Respondent(s) shall provide
EPA with the following deliverables:
1. Identification of Candidate Technologies Memorandum.
This memorandum shall be submitted within days of
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OSWER Directive Number 9835.3-2A
the effective date of this Order. If EPA disapproves
of or requires revisions to the technical memorandum
identifying candidate technologies, in whole or in
part, Respondent(s) shall amend and submit to EPA a
revised technical memorandum identifying candidate
technologies which is responsive to the directions in
all EPA comments, within days of receiving EPA's
comments.
2. Treatabilitv Testing Statement of Work. If EPA
determines that treatability testing is required,
within days thereafter [or as specified by EPA],
Respondent(s) shall submit a treatability testing
statement of work.
3. Treatabilitv Testing Work Plan. Within days
of submission of the treatability testing statement of
work, Respondent(s) shall submit a treatability testing
work plan, including a schedule. If EPA disapproves of
or requires revisions to the treatability testing work
plan, in whole or in part, Respondent(s) shall amend
and submit to EPA a revised treatability testing work
plan which is responsive to the directions in all EPA
comments, within days of receiving EPA's comments.
4. Treatabilitv Study Sampling and Analysis Plan.
Within days of the identification of the need for a
separate or revised QAPP or FSP, Respondent(s) shall
submit a treatability study sampling and analysis plan.
If EPA disapproves of or requires revisions to the
treatability study sampling and analysis plan, in whole
or in part, Respondent(s) shall amend and submit to EPA
a revised treatability study sampling and analysis plan
which is responsive to the directions in all EPA
comments, within days of receiving EPA's comments.
5. Treatabilitv Study Site Health and Safety Plan.
Within days of the identification of the need for a
revised health and safety plan, Respondent(s) shall
submit a treatability study site health and safety
plan.
6. Treatability Study Evaluation Report. Within
days of completion of any treatability testing,
Respondent(s) shall submit a treatability study
evaluation report as provided in the Statement of Work
and work plan. If EPA disapproves of or requires
revisions to the treatability study report, in whole or
in part, Respondent(s) shall amend and submit to EPA a
revised treatability study report which is responsive
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OSWER Directive Number 9835.3-2A
to the directions in all EPA comments, within days
of receiving EPA's comments.
F. Task V; Development and Screening of Alternatives.
Respondent(s) shall develop an appropriate range of waste
management options that will be evaluated through the development
and screening of alternatives, as provided in the Statement of
Work and work plan. During the development and screening of
alternatives,'Respondent(s) shall provide EPA with the following
deliverables:
...J.. Memorandum on Remedial Action Objectives. Within
days of receipt of EPA's baseline risk assessment,
Respondent(s) shall submit a memorandum on remedial action
objectives.
2. Memorandum on Development and Preliminary Screening of
Alternatives. Assembled Alternatives Screening Results and
Final Screening. Within days of submittal of the
memorandum on remedial action objectives, Respondent(s)
shall submit a memorandum summarizing the development and
screening of remedial alternatives, including an
alternatives array document as described in the Statement of
Work.
i
-G. Task VI; Detailed Analysis of Alternatives. Respondent(s)
shall conduct a detailed analysis of remedial alternatives, as
described in the Statement of Work and work plan. During the
detailed analysis of alternatives, Respondent(s) shall provide ..
_EPA with the following deliverables and presentation:
1. Report on Comparative Analysis and Presentation to EPA.
Within days of submission of a memorandum on the
development and screening of remedial alternatives,
Respondent(s) shall submit a report on comparative analysis
to EPA summarizing the results of the comparative analysis
performed between the remedial alternatives. If EPA
disapproves of or requires revisions to the report on
comparative analysis, Respondent(s) shall amend and submit
to EPA a revised report on comparative analysis which is
responsive to the directions in all EPA comments, within
days of receiving EPA's comments. Within two weeks of
submitting the original report on comparative analysis,
Respondent(s) shall make a presentation to EPA during which
Respondent(s) shall summarize the findings of the remedial
investigation and remedial action objectives, and present
the results of the nine criteria evaluation and comparative
analysis, as described in the Statement of Work.
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OSWER Directive Number 9835.3-2A
2. Draft Feasibility Study Report. Within days of
the presentation to EPA, Respondent(s) shall submit a
draft feasibility study report which reflects the
findings in EPA's baseline risk assessment.
Respondent(s) shall refer to Table 6-5 of the RI/FS
Guidance for report content and format. If EPA
disapproves of or requires revisions to the draft
feasibility study report in whole or in part,
Respondent(s) shall amend and submit to EPA a revised
feasibility study report which is responsive to the
directions in all EPA comments, within days of
receiving EPA's comments. The report as amended, and
the administrative record, shall provide the basis for
the proposed plan under CERCLA §§ 113(k) and 117(a) by
EPA, and shall document the development and analysis of
remedial alternatives.
25. EPA reserves the right to comment on, modify and direct
changes for all deliverables. At EPA's discretion, Respondent(s)
must fully correct all deficiencies and incorporate and integrate
all information and comments supplied by EPA either in subsequent
or resubmitted deliverables.
26. Respondent(s) shall not proceed further with any
subsequent activities or tasks until receiving EPA approval for
the following deliverables: RI/FS work plan and sampling and
analysis plan, draft remedial investigation report, treatability
testing work plan and sampling and analysis plan, [delete any of
the foregoing not required as a deliverable] and draft
feasibility study report. While awaiting EPA approval on these
deliverables, Respondent(s) shall proceed with all other tasks
and activities which may be conducted independently of these
deliverables, in accordance with the schedule set forth in this.
Consent Order.
27. Upon" receipt of the draft FS report, EPA will evaluate,
as necessary, the estimates of the risk to the public and
environment that are expected to remain after a particular
remedial alternative has been completed.
28. For all remaining deliverables not enumerated above in
paragraph 26, Respondent(s) shall proceed with all subsequent
tasks, activities and deliverables without awaiting EPA approval
on the submitted deliverable. EPA reserves the right to stop
Respondent(s) from proceeding further, either temporarily or
permanently, on any task, activity or deliverable at any point
during the RI/FS.
29. In the event that Respondent(s) amends or revises a
report, plan or other submittal upon receipt of EPA comments, if
10
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OSWER Directive Number 9835.3-2A
EPA subsequently disapproves of the revised submittal, or if
subsequent submittals do not fully reflect EPA's directions for
changes, EPA retains the right to seek stipulated or statutory
penalties; perform its own studies, complete the RI/FS (or any
portion of the RI/FS) under CERCLA and the NCP, and seek
reimbursement from the Respondent(s) for its costs; and/or seek
any other appropriate relief.
30. In the event that EPA takes over some of the tasks, but
not the preparation of the RI/FS, Respondent(s) shall incorporate
and integrate information supplied by EPA into the final RI/FS
report.
31. Neither failure of EPA to expressly approve or
disapprove of Respondent(s)' submissions within a specified time
period(s), nor the absence of comments, shall be construed as
approval by EPA. Whether or not EPA gives express approval for
Respondent(s)' deliverables, Respondent(s) is responsible for
preparing deliverables acceptable to EPA.
32. Respondent(s) shall, prior to any off-site shipment of
hazardous substances from the site to an out-of-state waste
management facility, provide written notification to the
appropriate state environmental official in the receiving state
and to EPA's Designated Project Coordinator of such shipment of
hazardous substances. However, the notification of shipments
shall not apply to any such off-site shipments when the total
volume of such shipments will not exceed 10 cubic yards.
(a) The notification shall be in writing, and shall include
the following information, where available: (1) the name and
location of the facility to which the hazardous substances are to
be shipped; (2) the type and quantity of the hazardous substances
to be shipped; (3) the expected schedule for the shipment of the
hazardous substances; and (4) the method of transportation.
Respondent(s) shall notify the receiving state of major changes
in the shipment plan, such as a decision to ship the hazardous
substances to another facility within the same state, or to a
facility in another state.
(b) The identity of the receiving facility and state will
be determined by Respondent(s) following the award of the
contract for the remedial investigation and feasibility study.
Respondent(s) shall provide all relevant information, including
information under the categories noted in paragraph 31(a) above,
on the off-site shipments, as soon as practical after the award
of the contract and before the hazardous substances are actually
shipped.
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OSWER Directive Number 9835. 3-2A
IX. EPA'S BASELINE RISK ASSESSMENT
33. EPA will perform the baseline risk assessment.
Respondent(s) shall support EPA in the effort by providing
various information to EPA as outlined above. The major
components of the baseline risk assessment include contaminant
identification, exposure assessment, toxicity assessment, and
human health and ecological risk characterization.
EPA will provide, after review of the respondent's site char-
acterization summary, sufficient information concerning the
baseline risks such that the respondent(s) can begin drafting the
feasibility study report and the Memorandum on Remedial Action
Objectives. This information will normally be in the form of two
or more baseline risk assessment memoranda prepared by EPA. One .
memorandum will generally include a list of the chemicals of
concern for human health and ecological effects and the
corresponding toxicity values. Another should list the current
and potential future exposure scenarios, exposure assumptions,
and exposure point concentrations that EPA plans to use in the
baseline risk assessment. The public, including the
Respondent(s), may comment on these memoranda. However, the
Agency is obligated to respond only to significant comments that
are submitted during the formal public comment period.
After considering any significant comments received, EPA will
prepare a baseline risk assessment report based on the data
collected by the respondents during the site character-
ization. EPA will release this report to the public at the same
time it releases the final RI report. Both reports will be put
into the administrative record for the site.
EPA will respond to all significant comments on the memoranda or
the baseline risk assessment that are resubmitted during the
formal comment period in the Responsiveness Summary of the Record
of Decision.
X. MODIFICATION OF THE WORK PLAN
34. If at any time during the RI/FS process, Respondent(s)
identifies a need for additional data, a memorandum documenting
the need for additional data shall be submitted to the EPA
Project Coordinator within 20 days of identification. EPA in its
discretion will determine whether the additional data will be
collected by Respondent(s) and whether it will be incorporated
into reports and deliverables.
35. In the event of conditions posing an immediate threat
to human health or welfare or the environment, Respondent(s)
shall notify EPA and the state immediately. In the event of
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OSWER Directive Number 9835.3-2A
unanticipated or changed circumstances at the site, Respondent(s)
shall notify the EPA Project Coordinator by telephone within 24
hours of discovery of the unanticipated or changed circumstances.
In addition to the authorities in the NCP, in the event that EPA
determines that the immediate threat or the unanticipated or
changed circumstances warrant changes in the work plan, EPA shall
modify or amend the work plan in writing, accordingly.
Respondent(ar> .shall perform the work plan as modified or amended.
36. EPA may determine that in addition to tasks defined in
the initially approved work plan, other additional work nay be
necessary to accomplish the objectives of the RI/FS as set forth
in the Statement of Work for this RI/FS. EPA may require that
the Respondent(s) perform these response actions in addition to
those required by the initially approved work plan, including any
approved modifications, if it determines that such actions are
necessary for a complete RI/FS. Respondent(s) shall confirm its
willingness to perform the additional work in writing to EPA
within 7 days of receipt of the EPA request or Respondent(s)
shall invoke dispute resolution. Subject to EPA resolution of
any dispute, Respondent(s) shall implement the additional tasks
which EPA determines are necessary. The additional work shall be
completed according to the standards, specifications, and
schedule set forth or approved by EPA in a written modification
to the work plan or written work plan supplement. EPA reserves
the right to conduct the work itself at any point, to seek
reimbursement from Respondent(s), and/or to seek any other
appropriate relief.
XI. QUALITY ASSURANCE
37. Respondent(s) shall assure that work performed, samples
"taken and analyses conducted conform to the requirements of the
Statement of Work, the QAPP and guidances identified therein.
Respondent(s) will assure that field personnel used by
Respondent(s) are properly trained in the use of field equipment
and in chain of custody procedures.
XII. FINAL RI/FS. PROPOSED PLAN. PUBLIC COMMENT.
RECORD OF DECISION. ADMINISTRATIVE RECORD
38. EPA retains the responsibility for the release to the
public of the RI/FS report. EPA retains responsibility for the
preparation and release to the public of the proposed plan and
record of decision in accordance with CERCLA and the NCP.
39. EPA shall provide Respondent(s) with the final RI/FS
report, proposed plan and record of decision.
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OSWER Directive Number 9835.3-2A
40. EPA will determine the contents of the administrative
record file for selection of the remedial action. Respondent(s)
must submit to EPA documents developed during the course of the
RI/FS upon which selection of the response action may be based.
Respondent(s) shall provide copies of plans, task memoranda
including documentation of field modifications, recommendations
for further action, quality assurance memoranda and audits, raw
data, field notes, laboratory analytical reports and other
reports. Respondent(s) must additionally submit any previous
studies conducted under state, local or other federal authorities
relating to selection of the response action, and all
communications between Respondent(s) and state, local or other
federal authorities concerning selection of the response action.
At EPA's discretion, Respondent(s) may establish a community
information repository at or near the site, to house one copy of
the administrative record.
XIII. PROGRESS REPORTS AND MEETINGS
41. Respondent(s) shall make presentations at, and
participate in, meetings at the request of EPA during the
initiation, conduct, and completion of the RI/FS. In addition to
discussion of the technical aspects of the RI/FS, topics will
include anticipated problems or new issues. Meetings will be
scheduled at'EPA's discretion.
42. In addition to the deliverables set forth in this
Order, Respondent(s) shall provide to EPA monthly progress
reports by the 10th day of the following month. At a minimum,
with respect to the preceding month, these progress reports shall
(1) describe the actions which have been taken to comply with
this Consent Order during that month, (2) include all results of
sampling and tests and all other data received by the
Respondent(s), (3) describe work planned for the next two months
with schedules relating such work to the overall project schedule
for RI/FS completion and (4) describe all problems encountered
and any anticipated problems, any actual or anticipated delays,
and solutions developed and implemented to address any actual or
anticipated problems or delays.
XIV. SAMPLING. ACCESS. AND DATA AVAILABILITY/ADMISSIBILITY
43. All results of sampling, tests, modeling or other data
(including raw data) generated by Respondent(s), or on
Respondent(s)' behalf, during implementation of this Consent
Order, shall be submitted to EPA in the subsequent monthly
progress report as described in Section XII of this Order. EPA
will make available to the Respondent(s) validated data generated
by EPA unless it is exempt from disclosure by any federal or
state law or regulation.
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OSWER Directive Number 9835. 3-2A
44. Respondent(s) will verbally notify EPA- at least 15 days
prior to conducting significant field events as described in the
Statement of Work, work plan or sampling and analysis plan. At
EPA's verbal or written request, or the request of EPA's
oversight assistant, Respondent(s) shall allow split or duplicate
samples to be taken by EPA (and its authorized representatives)
of any samples collected by the Respondent(s) in implementing
this Consent-Order. All split samples of Respondent(s) shall be
analyzed by the methods identified in the QAPP.
45. At all reasonable times, EPA and its authorized
representatives shall have the authority to enter and freely move
about all property at the site and off-site areas where work, if
any, is being performed, for the purposes of inspecting
conditions, activities, the results of activities, records,
operating logs, and contracts related to the site or
Respondent(s) and its contractor pursuant to this Order;
reviewing the progress of the Respondent(s) in carrying out the
terms of this Consent Order; conducting tests as EPA or its
authorized representatives deem necessary; using a camera, sound
recording device or other documentary type equipment; and
verifying the data submitted to EPA by the Respondent(s). The
Respondent(s) shall allow these persons to inspect and copy all
records, files, photographs, documents, sampling and monitoring
data, and other writings related to work undertaken in carrying
out this Consent Order. Nothing herein shall be interpreted as
limiting or affecting EPA's right of entry or inspection
authority under federal law. All parties with access to the site
under this paragraph shall comply with all approved health and
safety plans.
46. The Respondent(s) may assert a claim of business
confidentiality covering part or all of the information submitted
to EPA pursuant to the terms of this Consent Order under 40
C.F.R. §2.203, provided such claim is allowed by section
104(e)(7) of CERCLA, 42 U.S.C. S9604(e)(7). This claim shall be
asserted in the manner described by 40 C.F.R. $2.203(b) and
substantiated at the time the claim is made. Information
determined to be confidential by EPA will be given the protection
specified in 40 C.F.R. Part 2. If no such claim accompanies the
information when it is submitted to EPA, it may be made available
to the public by EPA or the state without further notice to the
Respondent(s). Respondent(s) agrees not to assert
confidentiality claims with respect to any data related to site
conditions, sampling, or monitoring.
47. In entering into this Order, Respondent(s) waives any
objections to any data gathered, generated, or evaluated by EPA,
the state or Respondent(s) in the performance or oversight of the
work that has been verified according to the quality
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OSWER Directive Number 9835. 3-2A
assurance/quality control (QA/QC) procedures required by the
Consent Order or any EPA-approved work plans or sampling and
analysis plans. If Respondent(s) objects to any other data
relating to the RI/FS, Respondent(s) shall submit to EPA a report
that identifies and explains its objections, describes the
acceptable uses of the data, if any, and identifies any
limitations to the use of the data. The report must be submitted
to EPA within 15 days of the monthly progress report containing
the data.
48. If the site, or the off-site area that is to be used
for access or is within the scope of the RI/FS, is owned in whole
or in part by parties other than those bound by this Consent
Order, Respondent(s) will obtain, or use its best efforts to
obtain, site access agreements from the present owner(s) within
days of the effective date of this Consent Order. Such
agreements shall provide access for EPA, its contractors and
oversight officials, the state and its contractors, and the
Respondent(s) or its authorized representatives, and such
agreements shall specify that Respondent(s) is not EPA's
representative with respect to liability associated with site
activities. Copies of such agreements shall be provided to EPA
prior to Respondent(s)' initiation of field activities.
Respondent(s)• best efforts shall include providing reasonable
compensation to any off-site property owner. If access
agreements are not obtained within the time referenced above,
Respondent(s) shall immediately notify EPA of its failure to
obtain access. EPA may obtain access for the Respondent(s),
perform those tasks or activities with EPA contractors, or
terminate the Consent Order in the event that Respondent(s)
cannot obtain access agreements. In the event that EPA performs
those tasks or activities with EPA contractors and does not
terminate the Consent Order, Respondent(s) shall perform all
other activities not requiring access to that site, and shall
reimburse EPA for all costs incurred in performing such
activities. Respondent(s) additionally shall integrate the
results of any such tasks undertaken by EPA into its reports and
deliverables. Furthermore, the Respondent(s) agrees to indemnify
the U.S. Government as specified in Section XXV of this Order.
Respondent(s) also shall reimburse EPA for all costs and attorney
fees incurred by the United States to obtain access for the
Respondent(s) pursuant to paragraph 70.
XV. DESIGNATED PROJECT COORDINATORS
49. Documents including reports, approvals, disapprovals,
and other correspondence which must be submitted under this
Consent Order, shall be sent by certified mail, return receipt
requested, to the following addressees or to any other addressees
which the Respondent(s) and EPA designate in writing:
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OSWER Directive Number 9835.3-2A
(a) Documents to be submitted to EPA should be sent to
[indicate number of copies]:
[EPA Project Coordinatorf
CERCLA Branch]
US EPA, Region [#],
[Street, City, State, Zip Code].
(b) Documents to be submitted to the Respondent(s) should
be sent to [include number of copies]:
[Name, Title,
Organization,
Street; City, State, Zip Code].
50. On or before the effective date of this Consent Order,
EPA and the Respondent(s) shall.each designate their own Project
Coordinator. EachsProject Coordinator shall be responsible for
overseeing the implementation of this Consent Order. To the
maximum extent possible, communications between the Respondent(s)
and EPA shall be directed to the Project Coordinator by mail,
with copies to such other persons as EPA, the state, and
Respondent(s) may respectively designate. Communications
include, but are not limited: to, all documents, reports,
approvals, and other correspondence submitted under this Consent
Order. :
51. EPA and the Respondent(s) each have the right to change
their respective Project.Coordinator. The other party must be
notified in writing at least 10 days prior to the change.
52. EPA's Project.-Coordinator shall have the authority
lawfully vested in a Remedial Project Manager (RPM) and On-Scene
Coordinator (OSC) by the NCP. In addition, EPA's Project
Coordinator shall have the authority consistent with the National
Contingency Plan, to bait any work required by this Consent
Order, and to take any necessary response action when s/he
determines that conditions at the site may present an immediate
endangerment to public health or welfare or the environment. The
absence of the EPA Project Coordinator from the area under study
pursuant to this Consent Order shall not be cause for the
stoppage or delay,of work.
53. EPA shall arrange for a qualified person to assist in
its oversight and review of the conduct of the RI/FS, as required
by section 104(a) of CERCLA, 42 U.S.C. S9604(a). The oversight
assistant may observe work and make inquiries in the absence of
EPA, but is not authorized to modify the work plan.
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OSWER Directive Number 9835.3-2A
XVI. OTHER APPLICABLE LAWS
54. Respondent(s) shall comply with all laws that are
applicable when performing the RI/FS. No local, state, or
federal permit shall be required for any portion of any action
conducted entirely on-site, including studies, where such action
is selected and carried out in compliance with section 121 of
CERCLA.
XVII. RECORD PRESERVATION
55. All records and documents in EPA's and Respondent's
possession that relate in any way to the site shall be preserved
during the conduct of this Consent Order and for a minimum of 10
years after commencement of construction of any remedial action.
The Respondent(s) shall acquire and retain copies of all
documents that relate to the site and are in the possession of
its employees, agents, accountants, contractors, or attorneys.
After this 10 year period, the Respondent(s) shall notify EPA at
least 90 days before the documents are scheduled to be destroyed.
If EPA requests that the documents be saved, the Respondent(s)
shall, at no cost to EPA, give EPA the documents or copies of the
documents.
XVIII. DISPUTE RESOLUTION
56. Any disputes concerning activities or deliverables
required under this Order, excluding the baseline risk
assessment, for which dispute resolution has been expressly
provided for, shall be resolved as follows: If the Respondent(s)
objects to any EPA notice of disapproval or requirement made
pursuant to this Consent Order, Respondent(s) shall notify EPA's
Project Coordinator in writing of its objections within 14 days
of receipt of the disapproval notice or requirement.
Respondent(s)' written objections shall define the dispute, state
the basis of Respondent(s)' objections, and be sent certified
mail, return receipt requested. EPA and the Respondent(s) then
have an additional 14 days to reach agreement. If an agreement
is not reached within 14 days, Respondent may request a
determination by EPA's [Branch Chief/Division Director]. The
[Branch Chief's/Division Director's] determination is EPA's final
decision. Respondent(s) shall proceed in accordance with EPA's
final decision regarding the matter in dispute, regardless of
whether Respondent(s) agrees with the decision. If the
Respondent(s) does not agree to perform or does not actually
perform the work in accordance with EPA's final decision, EPA
reserves the right in its sole discretion to conduct the work
itself, to seek reimbursement from the Respondent(s), to seek
enforcement of the decision, to seek stipulated penalties, and/or
to seek any other appropriate relief.
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OSWER Directive Number 9835. 3-2A
57. Respondent(s) is not relieved of its obligations to
perform and conduct activities and submit deliverables on the
schedule set forth in the work plan, while a matter is pending in
dispute resolution. The invocation of dispute resolution does
not stay stipulated penalties under this Order.
XIX. DELAY IN PERFORMANCE/STIPULATED PENALTIES
58. For each day that the Respondent(s) fails to complete a
deliverable in a timely manner or fails to produce a deliverable
of acceptable quality, or otherwise fails to perform in
accordance with the requirements of this Order, Respondent(s)
shall be liable for stipulated penalties. Penalties begin to
accrue on the day that performance is due or a violation occurs,
and extend through the period of correction. Where a revised
submission by Respondent(s) is required, stipulated penalties
shall continue to accrue until a satisfactory deliverable is
produced. EPA will provide written notice for violations that
are not based on timeliness; nevertheless, penalties shall accrue
from the day a violation commences. Payment shall be due within
30 days of receipt of a demand letter from EPA.
59. Respondents shall pay interest on the unpaid balance,
which shall begin to accrue at the end of the 30-day period, at
the rate established by the Department of Treasury pursuant to 30
U.S.C. S3717. Respondents shall further pay a handling charge of
1 percent, to be assessed at the end of each 31 day period, and a
6 percent per annum penalty charge, to be assessed if the penalty
is not paid in full within 90 days after it is due.
60. Respondent(s) shall make all payments by forwarding a
check to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
Checks should identify the name of the site, the site
identification number, the account number, and the title of this
Order. A copy of the check and/or transmittal letter shall be
forwarded to the EPA Project Coordinator.
61. For the following major deliverables, stipulated
penalties shall accrue in the amount of per day, per
violation, for the first seven days of noncompliance; per
day, per violation, for the 8th through 14th day of
noncompliance; per day, per violation, for the 15th day
through the 30th day; and per day per violation for all
violations lasting beyond 30 days.
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OSWER Directive Number 9835.3-2A
1) An original and any revised work plan.
2) An original and any revised sampling and analysis plan.
3) An original and any revised remedial investigation
report.
4) An original and any revised treatability testing work
plan.
5) An original and any revised treatability study sampling
and analysis plan.
6) An original and any revised feasibility study report.
62. For the following interim deliverables, stipulated
penalties shall accrue in the amount of per day, per
violation, for the first week of noncompliance; r per day, per
violation, for the 8th through 14th day of noncompliance;
per day, per violation, for the 15th day through the 30th day of
noncompliance; and per day per violation for all violations
lasting beyond 30 days.
1) Technical memorandum on modeling of site
characteristics.
2) Preliminary site characterization summary.
3) Summary of RI data,
4) Identification of candidate technologies memorandum.
5) Treatability testing statement of work.
6) Treatability study evaluation report.
7) Memorandum on remedial action objectives.
8) Memoranda on development and preliminary screening of
alternatives, assembled alternatives screening
results, and final screening.
9) Comparative analysis report.
63. For the monthly progress reports, stipulated penalties
shall accrue in the amount of per day, per violation, for
the first week of noncompliance; per day, per violation, for
the 8th through 14th day of noncompliance; ' per day, per
violation, for the 15th day through the 30th day; and per
day, per violation, for all violations lasting beyond 30 days.
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OSWER Directive Number 9835.3-2A
64. Respondent(s) may dispute EPA's right to the stated
amount of penalties by invoking the dispute resolution procedures
under Section XVII herein. Penalties shall accrue but need not
be paid during the dispute resolution period. If Respondent(s)
do not prevail upon resolution, all penalties shall be due to EPA
within 30 days of resolution of the dispute. If Respondent(s)
prevails upon resolution, no penalties shall be paid.
65. In the event that EPA provides for corrections to be
reflected in the next deliverable and does not require
resubmission of that deliverable, stipulated penalties for that
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OSWER Directive Number 9835.3-2A
the delay; all actions taken or to be taken to prevent or
minimize the delay; a schedule for implementation of any measures
to be taken to mitigate the effect of the delay; and a statement
as to whether, in the opinion of Respondent(s), such event may
cause or contribute to an endangerment to public health, welfare
or the environment. Respondent(s) shall exercise best efforts to
avoid or minimize any delay and any effects of a delay. Failure
to comply with the above requirements shall preclude
Respondent(s) from asserting any claim of force majeure.
69. If EPA agrees that the delay or anticipated delay is
attributable to force majeure, the time for performance of the
obligations under this Order that are directly affected by the
force majeure event shall be extended by agreement of the
parties, pursuant to section XXVI of this Order, for a period of
time not to exceed the actual duration of the delay caused by the
force majeure event. An extension of the time for performance of
the obligation directly affected by the force majeure event shall
not/ of itself, extend the time for performance of any subsequent
obligation.
70. If EPA does not agree that the delay or anticipated
delay has been or will be caused by a force majeure event, or
does not agree with Respondent(s) on the length of the extension,
the issue shall be subject to the dispute resolution procedures
set forth in section XVII of this Order. In any such proceeding,
to qualify for a force majeure defense, Respondent(s) shall have
the burden of demonstrating by a preponderance of the evidence
that the delay or anticipated delay has been or will be caused by
a force majeure event, that the duration of the delay was or will
be warranted under the circumstances, that Respondent(s) did
exercise or is exercising due diligence by using its best efforts
to avoid and mitigate the effects of the delay, and that
Respondent(s) complied with the requirements of paragraph 66.
71. Should Respondent(s) carry the burden set forth in
paragraph 65, the delay at issue shall be deemed not to be a
violation of the affected obligation of this Consent Order.
XXI. REIMBURSEMENT OF PAST COSTS
[Note that the Agency cannot compromise past costs unless the
consent order is also issued under $122(h)(l), and the
requirements of S122(h)(l) are also met, i.e., prior written
approval of the Attorney General is obtained if the total past
and projected response costs exceed $500,000, excluding
interest.]
72. Within 15 days of the effective date of this Order,
Respondent(s) shall remit a certified or cashiers check to EPA in
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the amount of $ , as previously demanded in the RI/FS Special
Notice Letter dated , together with interest that has
accrued thereon at the rate of interest specified for the
Hazardous Substances Superfund under CERCLA section 107(a), for
all past response costs incurred by the United States in its
[e.g., conduct of the removal action] at the site from
[date] to [date].
73. Checks should be made payable to the Hazardous
Substances Superfund and should include the name of the site, the
site identification number, the operable unit, if any, the
Regional Lock Box Number account number and the title of this
Order. Checks should be forwarded to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
74. A copy of the check should be sent simultaneously to
the EPA Project Coordinator.
XXII. REIMBURSEMENT OF RESPONSE AND OVERSIGHT COSTS
75. Following the issuance of this Consent Order, EPA shall
submit to the Respondent(s) on a periodic basis an accounting of
all response costs including oversight costs incurred by the U.S.
Government with respect to this RI/FS. Response costs may
include, but are not limited to, costs incurred by the U.S.
Government in overseeing Respondent(s)' implementation of the
requirements of this Order .and activities performed by the
government as part of the RI/FS and community relations,
including any costs incurred while obtaining access. Costs shall
include all direct and indirect costs, including, but not limited
to, time and travel costs of EPA personnel and associated
indirect costs,.contractor costs, cooperative agreement costs,
compliance monitoring, including the collection and analysis of
split samples, inspection of RI/FS activities, site visits,
discussions regarding disputes that may arise as a result of this
Consent Order, review and approval or disapproval of reports,
costs of performing the baseline risk assessment, and costs of
redoing any of Respondent(s)' tasks. Any necessary summaries,
including, but not limited to EPA's certified Agency Financial
Management System summary data (SPUR Reports), or such other
summary as certified by EPA, shall serve as basis for payment
demands.
76. Respondent(s) shall, within 30 days of receipt of each
accounting, remit a certified or cashier's check for the amount
of those costs. Interest shall accrue from the later of: the
date payment of a specified amount is demanded in writing; or the
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OSWER Directive Number 9835.3-2A
date of the expenditure. The interest rate is the rate of
interest on investments for the Hazardous Substances Superfund in
section 107(a) of CERCLA.
77. Checks should be made payable to the Hazardous
Substances Superfund and should include the name of the site, the
site identification number, the account number and the title of
this Order. Checks should be forwarded to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
78. Copies of the transmittal letter and check should be
sent simultaneously to the EPA Project Coordinator.
79.. Respondent(s) agrees to limit any disputes concerning
costs to accounting errors and the inclusion of costs outside the
scope of this Consent Order. Respondent(s) shall identify any
contested costs and the basis of its objection. All undisputed
costs shall be remitted by Respondent (s) in accordance with the
schedule set forth above. Disputed costs shall be paid by
Respondent(s) into an escrow account while the dispute is
pending. Respondent(s) bears the burden of establishing an EPA
accounting error or the inclusion of costs outside the scope of
this Consent Order.
XXIII. RESERVATIONS OF RIGHTS AND REIMBURSEMENT OF OTHER COSTS
80. EPA reserves the right to bring an action against the
Respondent(s) under section 107 of CERCLA for recovery of all
response costs including oversight costs, incurred by the United
States at the site that are not reimbursed by the Respondent(s),
any costs incurred in the event that EPA performs the RI/FS or
any part thereof, and any future costs incurred by the United
States in connection with response activities conducted under
CERCLA at this site.
81. EPA reserves the right to bring an action against
Respondent(s) to enforce the past costs and response and
oversight cost reimbursement requirements of this Consent Order,
to collect stipulated penalties assessed pursuant to section
XVIII of this Consent Order, and to seek penalties pursuant to
section 109 Of CERCLA, 42 U.S.C. §9609.
82. Except as expressly provided in this Order, each party
reserves all rights and defenses it may have. Nothing in this
Consent Order shall affect EPA's removal authority or EPA's
response or enforcement authorities including, but not limited
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OSWER Directive Number 9835.3-2A
to, the right to seek injunctive relief, stipulated penalties,
statutory penalties, and/or punitive damages.
83. Following satisfaction of the requirements of this
Consent Order, Respondent(s) shall have resolved its liability to
EPA for the work performed by Respondent (s) pursuant to this
Consent Order. Respondent(s) is not released from liability, if
any, for any'response actions taken beyond the scope of this
Order regarding removals, other operable units, remedial
design/remedial action of this operable unit, or activities
arising pursuant to section 121(c) of CERCLA.
XXIV. DISCLAIMER
84. By signing this Consent Order and taking actions under
this Order, the Respondent(s) does not necessarily agree with
EPA's Findings of Fact and Conclusions of Law. Furthermore, the
participation of the Respondent(s) in this Order shall not be
considered an admission of liability and is not admissible in
evidence against the Respondent(s) in any judicial or
administrative proceeding other than a proceeding by the United
States, including EPA, to enforce this Consent Order or a
judgment relating to it. Respondent(s) retains its rights to
assert claims against other potentially responsible parties at
the site. However, the Respondent (s) agrees not to contest the
validity or terms of this Order, or the procedures underlying or
relating to it in any action brought by the United States,
including EPA, to enforce its terms.
XXV. OTHER CLAIMS
85. In entering into this Order, Respondent(s) waives any
right to seek reimbursement under section 106(b) of CERCLA.
Respondent also waives any right to present a claim under section
111 or 112 of CERCLA. This Order does not constitute any
decision on preauthorization of funds under section 111(a)(2) of
CERCLA. Respondent(s) further waives all other statutory and
common law claims against EPA, including, but not limited to,
contribution and counterclaims, relating to or arising out of
conduct of the RI/FS.
86. Nothing in this Order shall constitute or be construed
as a release from any claim, cause of action or demand in law or
equity against any person, firm, partnership, subsidiary or
corporation not a signatory to this Consent Order for any
liability it may have arising out of or relating in any way to
the generation, storage, treatment, handling, transportation,
release, or disposal of any hazardous substances, pollutants, or
contaminants found at, taken to, or taken from the site.
25
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OSWER Directive Number 9835. 3-2A
87. Respondent(s) shall bear its own costs and attorneys
fees.
XXVI. FINANCIAL ASSURANCE. INSURANCE. AND INDEMNIFICATION
88. Respondent(s) shall establish and maintain a financial
instrument or trust account or other financial mechanism
acceptable to EPA, funded sufficiently to perform the work and
any other obligations required under this Consent Order,
including a margin for cost overruns. Within 15 days after the
effective date of this Consent Order, Respondent(s) shall fund
the .financial instrument or trust account sufficiently to perform
the work required under this Consent Order projected for the
period beginning with the effective date of the Order through
. Beginning _, and on or before the 15th calendar
day of each calendar year quarter thereafter, Respondent(s) shall
fund the financial instrument or trust account sufficiently to
perform the work and other activities required under this Order
projected for the succeeding calendar year quarter.
89. If at any time the net worth of the financial
instrument or trust account is insufficient to perform the work
and other obligations under the Order for the upcoming quarter,
Respondent(s) shall provide written notice to EPA within 7 days
after the net worth of the financial instrument or trust account
becomes insufficient. The written notice shall describe why the
financial instrument or trust account is funded insufficiently
and explain what actions have been or will be taken to fund the
financial instrument or trust account adequately.
90. (a) Prior to commencement of any work under this
Order, Respondent(s) shall secure, and shall maintain in force
for the duration of this Order, and for two years after the
completion of all activities required by this Consent Order,
Comprehensive General Liability ("CGL") and automobile insurance,
with limits of $ million dollars, combined single limit,
naming as insured the United States. The CGL insurance shall
include Contractual Liability Insurance in the amount of $
per occurrence, and Umbrella Liability Insurance in the amount of
$2 million per occurrence.
(b) Respondent(s) shall also secure, and maintain in
force for the duration of this Order and for two years after the
completion of all activities required by this Consent Order the
following:
i. Professional Errors and Omissions Insurance in
the amount of $1,000,000.00 per occurrence.
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OSWER Directive Number 9835.3-2A
ii. Pollution Liability Insurance in the amount of
$1,000,000.00 per occurrence, covering as
appropriate both general liability and
professional liability arising from pollution
conditions.
(c}. For the duration of this Order, Respondent(s)
shall satisfy,- or shall ensure that their contractors or
subcontractors satisfy, all applicable laws and regulations
regarding the provision of employer's liability insurance and
workmen's compensation insurance for all persons performing work
on behalf of the Respondent(s), in furtherance of this Order.
(d) If Respondent(s) demonstrates by evidence
satisfactory to EPA that any contractor or subcontractor
maintains insurance equivalent to that described above, or
insurance covering the same risks but in a lesser amount, then
with respect to that contractor or subcontractor Respondent(s)
need provide only that portion of the insurance described above
which is not maintained by the contractor or subcontractor.
(e) Prior to commencement of any work under this
Order, and annually thereafter on the anniversary of the
effective date of this Order, Respondent(s) shall provide to EPA
certificated of such insurance and a copy of each insurance
policy.
91. At least 7 days prior to commencing any work under this
Consent Order, Respondent(s) shall certify to EPA that the
required insurance has been obtained by that contractor.
92. The Respondent(s) agrees to indemnify and hold the
United States Government, its agencies, departments, agents, and
employees harmless from any and all claims or causes of action
arising from or on account of acts or omissions of Respondent(s),
its employees, agents, servants, receivers, successors, or
assignees, or any persons including, but not limited to, firms,
corporations, subsidiaries and contractors, in carrying out
activities under this Consent Order. The United States
Government or any agency or authorized representative thereof
shall not b« held as a party to any contract entered into by
Respondent(s) in carrying out activities under this Consent
Order.
XXVII. EFFECTIVE DATE AND SUBSEQUENT MODIFICATION
93. The effective date of this Consent Order shall be the
date it is signed by EPA.
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OSWER Directive Number 9835.3-2A
94. This Consent Order may be amended by mutual agreement
of EPA and Respondent(s). Amendments shall be in writing and
shall be effective when signed by EPA. EPA Project Coordinators
do not have the authority to sign amendments to the Consent
Order.
95. No informal advice, guidance, suggestions, or comments
by EPA regarding reports, plans, specifications, schedules, and
any other writing submitted by the Respondent (s) will be
construed as relieving the Respondent(s) of its obligation to
obtain such formal approval as may be required by this Order.
Any deliverables, plans, technical memoranda, reports (other than
progress reports), specifications, schedules and attachments
required by this Consent Order are, upon approval by EPA,
incorporated into this Order.
XXVIII. TERMINATION AND SATISFACTION
96. This Consent Order shall terminate when the
Respondent(s) demonstrates in writing and certifies to the
satisfaction of EPA that all activities required under this
Consent Order, including any additional work, payment of past
costs, response and oversight costs, and any stipulated penalties
demanded by EPA, have been performed and EPA has approved the
certification. This notice shall not, however, terminate
Respondent(s)' obligation to comply with Sections XVI, XXI, and
XXII of this Consent Order.
97. The certification shall be signed by a responsible
official representing each Respondent. Each representative shall
make the following attestation: "I certify that the information
contained in or accompanying this certification is true,
accurate, and complete." For purposes of this Consent Order, a
responsible official is a corporate official who is in charge of
a principal business function.
BY: DATE:
(Respondent(s))Title
*
BY: DATE:
Regional Administrator [or Delegatee]
U.S. Environmental Protection Agency
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Annotated OSWER Directive Number 9835.3-2A
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION [#]
IN THE MATTER OF: )
)
[SITE NAME] [SITE NUMBER] )
)
[COMPANY NAME )
Address] )
)
RESPONDENTS] )
)
)
Proceeding Under Sections 104, 122(a), ) U.S. EPA Docket No.
and 122(d)(3) of the Comprehensive )
Environmental Response, Compensation, )
and Liability Act as amended " )
(42 U.S.C §§ 9604, 9622(a), )
9622(d)(3)). )
ADMINISTRATIVE ORDER ON CONSENT
FOR REMEDIAL INVESTIGATION/FEASIBILITY STUDY
Operable Unit No.
I. INTRODUCTION
1. This Administrative Order on Consent (Consent Order) is
entered into voluntarily by the United States Environmental
Protection Agency (EPA) and [name of Respondent(s)]
(Respondent(s)). The Consent Order concerns the preparation of,
performance of, and reimbursement for all costs incurred by EPA
in connection with a remedial investigation and feasibility study
(RI/FS) for the [operable unit consisting of] at the [site name]
located in [site location] ("site") [as well as past response
costs].
II. JURISDICTION
2. This Consent Order is issued under the authority vested
in the President of the United States by sections 104, 122(a) and
122(d)(3) of the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended, 42 U.S.C. S§ 9604,
9622(a), 9622(d)(3) (CERCLA). This authority was delegated to
the Administrator of EPA on January 23, 1987, by Executive Order
12580, 52 Fed. Reg. 2926 (1987), and further delegated to
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Annotated OSWER Directive Number 9835.3-2A
Regional Administrators on September 13, 1987, by EPA Delegation
No. 14-14-C. [This authority has been redelegated by the
Regional Administrator to . ]
3. The Respondent(s) agrees to undertake all actions
required by the terms and conditions of this Consent Order. In
any action by EPA or the United States to enforce the terms of
this Consent Order, Respondent(s) consents to and agrees not to
contest the authority or jurisdiction of the Regional
Administrator to issue or enforce this Consent Order, and agrees
not to contest the validity of this Order or its terms.
III. PARTIES BOUND
4. This Consent Order shall apply to and be binding upon
EPA and shall be binding upon the Respondent(s), its agents,
successors, assigns, officers, directors and principals.
Respondent(s) is jointly and severally responsible for carrying
out all actions required of it by this Consent Order. The
signatories to this Consent Order certify that they are
authorized to execute and legally bind the parties they represent
to this Consent Order. No change in the ownership or corporate
status of the Respondent(s) or of the facility or site shall
alter Respondent(s)' responsibilities under this Consent Order.
5. The Respondent(s) shall provide a copy of this Consent
Order to any subsequent owners or successors before ownership
rights or stock or assets in a corporate acquisition are
transferred. Respondent(s) shall provide a copy of this Consent
Order, to all contractors, subcontractors, laboratories, and
consultants which are retained to conduct any work performed
under this Consent Order, within 14 days after the effective date
of this Consent Order or the date of retaining their services,
whichever is later. Respondent(s) shall condition any such
contracts upon satisfactory compliance with this Consent Order.
Notwithstanding the terms of any contract, Respondent(s) is
responsible for compliance with this Consent Order and for
ensuring that its subsidiaries, employees, contractors,
consultants, subcontractors, agents and attorneys comply with
this Consent Order.
IV. STATEMENT OF PURPOSE
6. In entering into this Consent Order, the objectives of
EPA and the Respondent(s) are: (a) to determine the nature and
extent of contamination and any threat to the public health,
welfare, or the environment caused by the release or threatened
release of hazardous substances, pollutants or contaminants at or
from the site or facility, by conducting a remedial
investigation; (b) to determine and evaluate alternatives for
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Annotated OSWER Directive Number 9835.3-2A
remedial action (if any) to prevent, mitigate or otherwise
respond to or remedy any release or threatened release of
hazardous substances, pollutants, or contaminants at or from the
site or facility, by conducting a feasibility study; and (c) to
recover response and oversight costs incurred by EPA with respect
to this Consent Order.
7. The activities conducted under this Consent Order are
subject to approval by EPA and shall provide all appropriate
necessary information for the RI/FS, with the exception of the
baseline risk assessment performed by EPA, and for a record of
decision that is consistent with CERCLA and the National
Contingency Plan (NCP), 40 C.F.R. Part 300. The activities
conducted under this Consent Order shall be conducted in
compliance with all applicable EPA guidances, policies, and
procedures.
V. FINDINGS OF FACT
[Note: Provide enough information in this section for the
Order to stand on its own. The findings of fact need to
establish and justify the conclusions of law set forth in
the Order.]
8. [Identify the site with the name, location, and
description, including geography, description of aquatic and
terrestrial communities, and brief site history.]
9. [Provide information that there are hazardous
substances at the site by listing the specific chemicals found at
the site, and their locations, concentrations and quantities
where known, including description of studies conducted to find
the hazardous substances.]
10. [Describe actual and/or potential release and
contaminant migration pathways, making clear that these are not
exclusive.]
11. [Briefly note some health/environmental effects of some
major contaminants.]
12. [State that the site is on the [proposed] National
Priorities List. Reference section 105 of CERCLA and Federal
Register in which notice of listing appeared.]
13. [Identify each Respondent, i.e., name/business.]
14. [For each Respondent, state the connection between the
Respondent and the site, e.g., owner or operator of a hazardous
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Annotated OSWER Directive Number 9835.3-2A
waste site, or person who arranged for disposal or treatment of,
or transporter of hazardous substances found at the site.]
15. [Identify prior response and enforcement actions, if
any, taken at the site.]
VI. CONCLUSIONS OF LAW AND DETERMINATIONS
16. The site is a "facility** as defined in section 101(9)
of CERCLA, 42 U.S.C. 59601(9).
17. Wastes and constituents thereof [at the site,, sent to
the site, disposed of at the site, and/or transported to the
site] identified in paragraph 9 are "hazardous substances'1 as
defined in section 101(14) of CERCLA, 42 U.S.C. §9601(14), or
constitute "any pollutant or contaminant" that may present an
imminent and substantial danger to public health or welfare under
section 104(a)(1) of CERCLA.
18. The presence of hazardous substances at the site or the
past, present or potential migration of hazardous substances
currently located at or emanating from the site, constitute
actual and/or threatened "releases" as defined in section 101(22)
of CERCLA, 42 U.S.C. §9601(22).
19. Respondent(s) is a "person" as defined in section
101(21) Of CERCLA, 42 U.S.C. §9601(21).
20. Respondent(s) is a responsible party under sections
104, 107 and 122 of CERCLA, 42 U.S.C. §§ 9604, 9607 and 9622.
«
21. The actions required by this Consent Order are
necessary to protect the public health or welfare or the
environment, are in the public interest, 42 U.S.C. §9622(a), are
consistent with CERCLA and the NCP, 42 U.S.C. §§ 9604(a)(l),
9622(a), and will expedite effective remedial action and minimize
litigation, 42 U.S.C. §9622(a).
VII. NOTICE
22. By providing a copy of this Consent Order to the state,
EPA is notifying the state of [name of state] that this Order is
being issued and that EPA is the lead agency for coordinating,
overseeing, and enforcing the response action required by the
Order.
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Annotated OSWER Directive Number 9835.3-2A
VIZI. WORK TO BE PERFORMED
23. All work performed under this Consent Order shall be
under the direction and supervision of qualified personnel.
Within 30 days of the effective date of this Order, and before
the work outlined below begins, the Respondent(s) shall notify
EPA in writing of the names, titles, and qualifications of the
personnel, including contractors, subcontractors, consultants and
laboratories to be used in carrying out such work. The
qualifications of the persons undertaking the work for
Respondent(s) shall be subject to EPA's review, for verification
that such persons meet minimum technical background and
experience requirements. This Order is contingent on
Respondent(s)' demonstration to EPA's satisfaction that
Respondent(s) is qualified to perform properly and promptly the
actions set forth in this Consent Order. If EPA disapproves in
writing of any person(s)' technical qualifications, Respondent(s)
shall notify EPA of the identity and qualifications of the
replacement(s) within 30 days of the written notice. If EPA
subsequently disapproves of the replacement(s), EPA reserves the
right to terminate this Order and to conduct a complete RI/FS,
and to seek reimbursement for costs and penalties from
Respondent(s). During the course of the RI/FS, Respondent(s)
shall notify EPA in writing of any changes or additions in the
personnel used to carry out such work, providing their names,
titles, and qualifications. EPA shall have the same right to
approve changes and additions to personnel as it has hereunder
regarding the initial notification.
24. Respondent(s) shall conduct activities and submit
deliverables as provided by the attached RI/FS Statement of Work,
which is incorporated by reference, for the development of the
RI/FS. All such work shall be conducted in accordance with
CERCLA, the NCP, and EPA guidance including, but not limited to,
the "Interim Final Guidance for Conducting Remedial
Investigations and Feasibility Studies under CERCLA" (OSWER
Directive # 9355.3-01), "Guidance for Data Useability in Risk
Assessment" (OSWER Directive #9285.7-05) and guidances referenced
therein, and guidances referenced in the Statement of Work, as
may be amended or modified by EPA. The general activities that
Respondent(s) is required to perform are identified below,
followed by a list of deliverables. The tasks that Respondent(s)
must perform are described more fully in the Statement of Work
and guidances. The activities and deliverables identified below
shall be developed as provisions in the work plan and sampling
and analysis plan, and shall be submitted to EPA as provided.
All work performed under this Consent Order shall be in
accordance with the schedules herein, and in full accordance with
the standards, specifications, and other requirements of the work
plan and sampling and analysis plan, as initially approved or
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Annotated OSWER Directive Number 9835.3-2A
modified by EPA, and as nay be amended or modified by EPA from
time to time. For the purposes of this Order, day means calendar
day unless otherwise noted in the Order.
A. Task Ii Scoping. EPA determines the site-specific objectives
of the RI/FS and devises a general management approach for the
site, as stated in the attached Statement of Work. Respondent(s)
shall conduct the remainder of scoping activities as described in
the attached Statement of Work and referenced guidances. At the
conclusion of the project planning phase, Respondent(s) shall
provide EPA with the following deliverables:
1. RI/FS Work Plan. Within •- days of the effective date
,of this Order, Respondent(s) shall submit to EPA a complete
'RI/FS work plan. If EPA disapproves of or requires
revisions to the RI/FS work plan, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised work
plan which is responsive to the directions in all EPA
comments, within days of receiving EPA's comments.
2. Sampling and Analysis Plan. Within days of the
effective date of this Order, Respondent(s) shall submit to
EPA the sampling and analysis plan. This plan shall consist
of a field sampling plan (FSP) and a quality assurance
project plan (QAPjP), as described in the Statement of Work
and guidances. If EPA disapproves of or requires revisions
to the sampling and analysis plan, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised
sampling and analysis plan which is responsive to the
directions in all EPA comments, within days of receiving
EPA's comments.
3. Site Health and Safety Plan. Within days of the
effective date of this Order, Respondent(s) shall submit to
EPA the site health and safety plan.
Following approval or modification by EPA, the RI/FS work
plan and the sampling and analysis plan are incorporated by
reference herein.
B. Task II; Community Relations Plan. EPA will prepare a
community relations plan, in accordance with EPA guidance and the
NCP. Respondent(s) shall provide information supporting EPA's
community relations programs.
C. Task III; Site Characterization. Following EPA approval or
modification of the work plan and sampling and analysis plan.
Respondent(s) shall implement the provisions of these plans to
characterize the site. Respondent(s) shall complete site
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Annotated OSWER Directive Number 9835.3-2A
characterization within months of EPA approval or
modification of the work plan and sampling and analysis plan.
Respondent(s) shall provide EPA with analytical data within
days of each sampling activity, in a electronic format (i.e.,
computer disk) showing the location, medium and results. Within
7 days of completion of field activities, Respondent(s) shall
notify EPA in writing. During site characterization,
Respondent(s) shall provide EPA with the following deliverables,
as described in the Statement of Work and work plan:
1. Technical Memorandum on Modeling of Site
Characteristics. Where Respondent(s) proposes that
modeling is appropriate, within days of the
initiation of site characterization, Respondent(s)
shall submit a technical memorandum on modeling of site
characteristics, as described in the Statement of Work.
If EPA disapproves of or requires revisions to the
technical memorandum on modeling of site
characteristics, in whole or in part, Respondent(s)
shall amend and submit to EPA a revised technical
memorandum on modeling of site characteristics which is
responsive to the directions in all EPA comments,
within days of receiving EPA's comments.
2. Preliminary Site Characterization Summary. Within
days of completion of the field sampling and
analysis, as specified in the work plan, Respondent(s)
shall submit a site characterization summary to EPA.
•D. Draft Remedial Investigation Report [See Task III of the
attached Statement of Work.] Within days of receipt,
respondent(s) shall submit a draft remedial investigation report
consistent with the Statement of Work, work plan, sampling and
analysis plan. If EPA disapproves of or requires revisions to
the remedial investigation report, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised remedial
investigation report which is responsive to the directions in all
EPA comments, within days of receiving EPA's comments.
E. Task IVi Treatability Studies. Respondent(s) shall conduct
treatability studies, except where Respondent(s) can demonstrate
Jto EPA's satisfaction that they are not needed. Major components
of the treatability studies include determination of the need for
and scope of studies, the design of the studies, and the
completion of the studies, as described in the Statement of Work.
During treatability studies, Respondent(s) shall provide
EPA with the following deliverables:
1.Identification of Candidate Technologies Memorandum.
This memorandum shall be submitted within days of
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Annotated OSWER Directive Number 9835.3-2A
the effective date of this Order. If EPA disapproves
of or requires revisions to the technical memorandum
identifying candidate technologies, in whole or in
part, Respondent(s) shall amend and submit to EPA a
revised technical memorandum identifying candidate
technologies which is responsive to the directions in
all EPA comments, within days of receiving EPA's
comments.
2. Treatability Testing Statement of Work. If EPA
determines that treatability testing is required,
within days thereafter [or as specified by EPA],
Respondent(s) shall submit a treatability testing
statement of work.
3. Treatability Testing Work Plan. Within days
of submission of the treatability testing statement of
work, Respondent(s) shall submit a treatability testing
work plan, including a schedule. If EPA disapproves of
or requires revisions to the treatability testing work
plan, in whole or in part, Respondent(s) shall amend
and submit to EPA a revised treatability testing work
plan which is responsive to the directions in all EPA
comments, within days of receiving EPA's comments.
4. Treatability Study Sampling and Analysis Plan.
Within days of the identification of the need for a
separate or revised QAPP or FSP, Respondent(s) shall
submit a treatability study sampling and analysis plan.
If EPA disapproves of or requires revisions to the
treatability study sampling and analysis plan, in whole
or in part, Respondent(s) shall amend and submit to EPA
a revised treatability study sampling and analysis plan
which is responsive to the directions in all EPA
comments, within days of receiving EPA's comments.
5. Treatabilitv Study Site Health and Safety Plan.
Within days of the identification of the need for a
revised health and safety plan, Respondent(s) shall
submit a treatability study site health and safety
plan.
6. Treatabilitv Study Evaluation Report. Within
days of completion of any treatability testing,
Respondent(s) shall submit a treatability study
evaluation report as provided in the Statement of Work
and work plan. If EPA disapproves of or requires
revisions to the treatability study report, in whole or
in part, Respondent(s) shall amend and submit to EPA a
revised treatability study report which is responsive
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Annotated OSWER Directive Number 9835.3-2A
to the directions in all EPA comments, within days
of receiving EPA's comments.
P. Task V; Development and Screening of Alternatives.
Respondent(s) shall develop an appropriate range of waste
management options that will be evaluated through the development
and screening of alternatives, as provided in the Statement of
Work and work plan. During the development and screening of
alternatives, Respondent(s) shall provide EPA with the following
deliverables:
1. Memorandum on Remedial Action Objectives. Within
days of receipt of EPA's baseline risk assessment,
Respondent(s) shall submit a memorandum on remedial action
objectives.
2. Memorandum on Development and Preliminary Screening of
Alternatives. Assembled Alternatives Screening Results and
Final Screening. Within _^__ days of submittal of the
memorandum on remedial action objectives, Respondent(s)
shall submit a memorandum summarizing the development and
screening of remedial alternatives, including an
alternatives array document as described in the Statement of
Work.
G. Task VI: Detailed Analysis of Alternatives. Respondent(s)
shall conduct a detailed analysis of remedial alternatives, as
described in the Statement of Work and work plan. During the
detailed analysis of alternatives, Respondent(s) shall provide
EPA with the following deliverables and presentation:
1. Report on Comparative Analysis and Presentation to EPA.
Within days of submission of a memorandum on the
development and screening of remedial alternatives,
Respondent(s) shall submit a report on comparative analysis
to EPA summarizing the results of the comparative analysis
performed between the remedial alternatives. If EPA
disapproves of or requires revisions to the report on
comparative analysis, Respondent(s) shall amend and submit
- to EPA a revised report on comparative analysis which is
responsive to the directions in all EPA comments, within
days of receiving EPA's comments. Within two weeks of
submitting the original report on comparative analysis,
Respondent(s) shall make a presentation to EPA during which
Respondent(s) shall summarize the findings of the remedial
investigation and remedial action objectives, and present
the results of the nine criteria evaluation and comparative
analysis, as described in the Statement of Work.
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Annotated OSWER Directive Number 9835.3-2A
2. Draft Feasibility Study Report. Within days of
the presentation to EPA, Respondent(s) shall submit a
draft feasibility study report which reflects the
findings in EPA's baseline risk assessment.
Respondent(s) shall refer to Table 6-5 of the RI/FS
Guidance for report content and format. If EPA
disapproves of or requires revisions to the draft
feasibility study report in whole or in part,
Respondent(s) shall amend and submit to EPA a revised
feasibility study report which is responsive to the
directions in all EPA comments, within days of
receiving EPA's comments. The report as amended, and
the administrative record, shall provide the basis for
the proposed plan under CERCLA §§ 113(k) and 117(a) by .
EPA, and shall document the development and analysis of
remedial alternatives.
25. EPA reserves the right to comment on, modify and direct
changes for all deliverables. At EPA's discretion, Respondent(s)
must fully correct all deficiencies and incorporate and integrate
all information and comments supplied by EPA either in subsequent
or resubmitted deliverables.
j
26. Respondent(s) shall not proceed further with any
subsequent activities or tasks until receiving EPA approval for
the following deliverables: RI/FS work plan and sampling and
analysis plan, draft remedial investigation report, treatability
testing work plan and sampling and analysis plan, [delete any of
the foregoing not required as a deliverable] and draft
feasibility study report. While awaiting EPA approval on these
deliverables, Respondent(s) shall proceed with all other tasks
and activities which may be conducted independently of these
deliverables, in accordance with the schedule set forth in this
Consent Order.
27. Dpon receipt of the draft F6 report, EPA will evaluate,
as necessary, the estimates of the risk to the public and
environment that are expected to remain after a particular
remedial alternative has been completed.
28. For all remaining deliverables not enumerated above in
paragraph 26, Respondent(s) shall proceed with all subsequent
tasks, activities and deliverables without awaiting EPA approval
on the submitted deliverable. EPA reserves the right to stop
Respondent(s) from proceeding further, either temporarily or
permanently, on any task, activity or deliverable at any point
during the RI/FS.
29. In the event that Respondent(s) amends or revises a
report, plan or other submittal upon receipt of EPA comments, if
10
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Annotated OSWER Directive Number 9835.3-2A
EPA subsequently disapproves of the revised submittal, or if
subsequent submittals do not fully reflect EPA's directions for
changes, EPA retains the right to seek stipulated or statutory
penalties; perform its own studies, complete the RI/FS (or any
portion of the RI/FS) under CERCLA and the NCP, and seek
reimbursement from the Respondent(s) for its costs; and/or seek
any other appropriate relief.
30. In the event that EPA takes over some of the tasks, but
not the preparation of the RI/FS, Respondent(s) shall incorporate
and integrate information supplied by EPA into the final RI/FS
report.
31. Neither failure of EPA to expressly approve or
disapprove of Respondent(s)' submissions within a specified time
period(s), nor the absence of comments, shall be construed as
approval by EPA. Whether or not EPA gives express approval for
Respondent(s)• deliverables, Respondent(s) is responsible for
preparing deliverables acceptable to EPA.
32. Respondent(s) shall, prior to any off-site shipment of
hazardous substances from the site to an out-of-state waste
management facility, provide written notification to the
appropriate state environmental official in the receiving state
and to EPA's Designated Project Coordinator of such shipment of
hazardous substances. However, the notification of shipments
shall not apply to any such off-site shipments when the total
volume of such shipments will not exceed 10 cubic yards.
(a) The notification shall be in writing, and shall include
the following information, where available: (1) the name and
location of the facility to which the hazardous substances are to
be shipped; (2) the type and quantity of the hazardous substances
to be shipped; (3) the expected schedule for the shipment of the
hazardous substances; and (4) the method of transportation.
Respondent(s) shall notify the receiving state of major changes
in the shipment plan, such as a decision to ship the hazardous
substances to another facility within the same state, or to a
facility in another state.
(b) The identity of the receiving facility and state will
be determined by Respondent(s) following the award of the
contract for the remedial investigation and feasibility study.
Respondent(s) shall provide all relevant information, including
information under the categories noted in paragraph 31(a) above,
on the off-site shipments, as soon as practical after the award
of the contract and before the hazardous substances are actually
shipped.
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Annotated OSWER Directive Number 9835.3-2A
IX. EPA'S BASELINE RISK ASSESSMENT
33. EPA will perform the baseline risk assessment.
Respondent shall support EPA in the effort by providing various
information to EPA as outlined above. The major components of
the baseline risk assessment include contaminant identification,
exposure assessment, toxicity assessment, and human health and
ecological risk characterization.
EPA will provide, after review of the respondent's site char-
acterization summary, sufficient information concerning the
baseline risks such that the respondents can begin drafting the
feasibility study report and the Memorandum on Remedial Action
Objectives. This information will normally be in the form of two
or more baseline risk assessment memoranda prepared by EPA. One
memorandum will generally include a list of the chemicals of
concern for human health and ecological effects and the
corresponding toxicity values. Another should list the current
and potential future exposure scenarios, exposure assumptions,
and exposure point concentrations that EPA plans to use in the
baseline risk assessment. The public, including the potentially
responsible parties, may comment on these memoranda. However,
the Agency is obligated to respond only to significant comments
that are submitted during the formal public comment period.
After considering any significant comments received, EPA will
prepare a baseline risk assessment report based on the data
collected by the respondents during the site character-
ization. EPA will release this report to the public at the same
time it releases the final RI report. Both reports will be put
into the Administrative Record for the site.
EPA will respond to all significant comments on the memoranda or
the baseline risk assessment that are resubmitted during the
formal comment period in the Responsiveness Summary of the Record
of Decision.
X. MODIFICATION OF THE WORK PLAN
34. If at any time during the RI/FS process, Respondent(s)
identifies a need for additional data, a memorandum documenting
the need for additional data shall be submitted to the EPA
Project Coordinator within 20 days of identification. EPA in its
discretion will determine whether the additional data will be
collected by Respondent(s) and whether it will be incorporated
into reports and deliverables. .-
35. In the event of conditions posing an immediate threat
to human health or welfare or the environment, Respondent(s)
shall notify EPA and the state immediately. In the event of
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Annotated OSWER Directive Number 9835.3-2A
unanticipated or changed circumstances at the site, Respondent(s)
shall notify the EPA Project Coordinator by telephone within 24
hours of discovery of the unanticipated or changed circumstances.
In addition to the authorities in the NCP, in the event that EPA
determines that the immediate threat or the unanticipated or
changed circumstances warrant changes in the work plan, EPA shall
modify or amend the work plan in writing accordingly.
Respondent(s) shall perform the work plan as modified or amended.
36. EPA may determine that in addition to tasks defined in
the initially approved work plan, other additional work may be
necessary to accomplish the objectives of the RI/FS as set forth
in the Statement of Work for this RI/FS. EPA may require that
the Respondent(s) perform these response actions in addition to
those required by the initially approved work plan, including any
approved modifications, if it determines that such actions are
necessary for a complete RI/FS. Respondent(s) shall confirm its
willingness to perform the additional work in writing to EPA
within 7 days of receipt of the EPA request or Respondent(s)
shall invoke dispute resolution. Subject to EPA resolution of
any dispute, Respondent(s) shall implement the additional tasks
which EPA determines are necessary. The additional work shall be
completed according to the standards, specifications, and
schedule set forth or approved by EPA in a written modification
to the work plan or written work plan supplement. EPA reserves
the right to conduct the work itself at any point, to seek
reimbursement from Respondent(s), and/or to seek any other
appropriate relief.
XI. QUALITY ASSURANCE
37. Respondent(s) shall assure that work performed, samples
taken and analyses conducted conform to the requirements of the
Statement of Work, the QAPP and guidances identified therein.
Respondent(s) will assure that field personnel used by
Respondent(s) are properly trained in the use of field equipment
and in chain of custody procedures.
XII. FINAL RI/FS. PROPOSED PLAN. PUBLIC COMMENT.
RECORD OF DECISION. ADMINISTRATIVE RECORD
38. EPA retains the responsibility for the release to the
public of the RI/FS report. EPA retains responsibility for the
preparation and release to the public of the proposed plan and
record of decision in accordance with CERCLA and the NCP.
39. EPA shall provide Respondent(s) with the final RI/FS
report, proposed plan and record of decision.
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Annotated OSWER Directive Number 9835.3-2A
40. EPA will determine the contents of the administrative
record file for selection of the remedial action. Respondent(s)
must submit to EPA documents developed during the course of the
RI/FS upon which selection of the response action may be based.
Respondent(s) shall provide copies of plans, task memoranda
including documentation of field modifications, recommendations
for further action, quality assurance memoranda and audits, raw
data, field notes, laboratory analytical reports and other
reports. Respondent(s) must additionally submit any previous
studies conducted under state, local or other federal authorities
relating to selection of the response action, and all
communications between Respondent(s) and state, local or other
federal authorities concerning selection of the response action.
At EPA's discretion, Respondent(s) may establish a community
information repository at or hear the site, to house one copy of
the administrative record.
XIII. PROGRESS REPORTS AND MEETINGS
41. Respondent(s) shall make presentations at, and
participate in, meetings at the request of EPA during the
initiation, conduct, and completion of the RI/FS. In addition to
discussion of the technical aspects of the RI/FS, topics will
include anticipated problems or new issues. Meetings will be
scheduled at EPA's discretion.
42. In addition to the deliverables set forth in this
Order, Respondent(s) shall provide to EPA monthly progress
reports by the 10th day of the following month. At a minimum,
with respect to the preceding month, these progress reports shall
(1) describe the actions which have been taken to comply with
this Consent Order during that month, (2) include all results of
sampling and tests and all other data received by the
Respondent(s), (3) describe work planned for the next two months
with schedules relating such work to the overall project schedule
for RI/FS completion and (4) describe all problems encountered
and any anticipated problems, any actual or anticipated delays,
and solutions developed and implemented to address any actual or
anticipated problems or delays.
XIV. SAMPLING. ACCESS. AND DATA AVAILABILITY/ADMISSIBILITY
43. All results of sampling, tests, modeling or other data
(including raw data) generated by Respondent(s), or on
Respondent(s)' behalf, during implementation of this Consent
Order, shall be submitted to EPA in the subsequent monthly
progress report as described in Section XII of this Order. EPA
will make available to the Respondent(s) validated data generated
by EPA unless it is exempt from disclosure by any federal or
state law or regulation.
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Annotated OSWER Directive Number 9835.3-2A
44. Respondent(s) will verbally notify EPA at least 15 days
prior to conducting significant field events as described in the
Statement of Work, work plan or sampling and analysis plan. At
EPA's verbal or written request, or the request of EPA's
oversight assistant, Respondent(s) shall allow split or duplicate
samples to be taken by EPA (and its authorized representatives)
of any samples collected by the Respondent(s) in implementing
this Consent Order. All split samples of Respondent(s) shall be
analyzed by the methods identified in the QAPP.
45. At all reasonable times, EPA and its authorized
representatives shall have the authority to enter and freely move
about all property at the site and off-site areas where work, if
any, is being performed, for the purposes of inspecting
conditions, activities, the results of activities, records,
operating logs, and contracts related to the site or
Respondent(s) and its contractor pursuant to this Order;
reviewing the progress of the Respondent(s) in carrying out the
terms of this Consent Order; conducting tests as EPA or its
authorized representatives deem necessary; using a camera, sound
recording device or other documentary type equipment; and
verifying the data submitted to EPA by the Respondent(s). The
Respondent(s)' shall allow these persons to inspect and copy all
records, files, photographs, documents, sampling and monitoring
data, and other writings related to work undertaken in carrying
out this Consent Order. Nothing herein shall be interpreted as
limiting or affecting EPA's right of entry or inspection
authority under federal law. All parties with access to the site
under this paragraph shall comply with all approved health and
safety plans.
46. The Respondent(s) may assert a claim of business
confidentiality covering part or all of the information submitted
to EPA pursuant to the terms of this Consent Order under 40
C.F.R. §2.203, provided such claim is allowed by section
104(e)(7) of CERCLA, 42 U.S.C. §9604(e)(7). This claim shall be
asserted in the manner described by 40 C.F.R. $2.203(b) and
substantiated at the time the claim is made. Information
determined to be confidential by EPA will be given the protection
specified in 40 C.F.R. Part 2. If no such claim accompanies the
information when it is submitted to EPA, it may be made available
to the public by EPA or the state without further notice to the
Respondent(s). Respondent(s) agrees not to assert
confidentiality claims with respect to any data related to site
conditions, sampling, or monitoring.
47. In entering into this Order, Respondent(s) waives any
objections to any data gathered, generated, or evaluated by EPA,
the state or Respondent(s) in the performance or oversight of the
work that has been verified according to the quality
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Annotated OSWER Directive Number 9835.3-2A
assurance/quality control (QA/QC) procedures required by the
Consent Order or any EPA-approved work plans or sampling and
analysis plans. If Respondent(s) objects to any other data
relating to the RI/FS, Respondent(s) shall submit to EPA a report
that identifies and explains its objections, describes the
acceptable uses of the data, if any, and identifies any
limitations to the use of the data. The report must be submitted
to EPA within 15 days of the monthly progress report containing
the data.
48. if the site, or the off-site area that is to be used
for access or is within the scope of the RI/FS, is owned in whole
or in part by parties other than those bound by this Consent
Order, Respondent(s) will obtain, or use its best efforts to
obtain, site access agreements from the present owner(s) within
days of the effective date of this Consent Order. Such
agreements shall provide access for EPA, its contractors and
oversight officials, the state and its contractors, and the
Respondent(s) or its authorized representatives, and such
agreements shall specify that Respondent(s) is not EPA's
representative with respect to liability associated with site
activities. Copies of such agreements shall be provided to EPA
prior to Respondent(s)' initiation of field activities.
Respondent(s)' best efforts shall include providing reasonable
compensation to any off-site property owner. If access
agreements are not obtained within the time referenced above,
Respondent(s) shall immediately notify EPA of its failure to
obtain access. EPA may obtain access for the Respondent(s),
perform those tasks or activities with EPA contractors, or
terminate the Consent Order in the event that Respondent(s)
cannot obtain access agreements. In the event that EPA performs
those tasks or activities with EPA contractors and does not
terminate the Consent Order, Respondent(s) shall perform all
other activities not requiring access to that site, and shall
reimburse EPA for all costs incurred in performing such
activities. Respondent(s) additionally shall integrate the
results of any such tasks undertaken by EPA into its reports and
deliverables. Furthermore, the Respondent(s) agrees to indemnify
the U.S. Government as specified in Section XXV of this Order.
Respondent(s) also shall reimburse EPA for all costs and attorney
fees incurred by the United States to obtain access for the
Respondent(s) pursuant to paragraph 70.
XV. DESIGNATED PROJECT COORDINATORS
49. Documents including reports, approvals, disapprovals,
and other correspondence which must be submitted under this
Consent Order, shall be sent by certified mail, return receipt
requested, to the following addressees or to any other addressees
which the Respondent(s) and EPA designate in writing:
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Annotated OSWER Directive Number 9835.3-2A
(a) Documents to be submitted to EPA should be sent to
[indicate number of copies]:
[EPA Project Coordinator,
CERCLA Branch]
US EPA, Region [#],
[Street, City, State, Zip Code].
_(b) Documents to be submitted to the Respondent(s) should
be sent to [include number of copies]:
[Name, Title,
Organization,
Street, City, State, Zip Code].
50. On or before the effective date of this Consent Order,
EPA and the Respondent(s) shall each designate their own Project
Coordinator. Each Project Coordinator shall be responsible for
overseeing the implementation of this Consent Order. To the
maximum extent possible, communications between the Respondent(s)
and EPA shall be directed to the Project Coordinator by mail,
with copies to such other persons as EPA, the state, and
Respondent(s) may respectively designate. Communications
include, but are not limited to, all documents, reports,
approvals, and other correspondence submitted under this Consent
Order.
51. EPA and the Respondent(s) each have the right to change
their respective Project Coordinator. The other party must be
notified in writing at least 10 days prior to the change.
52. EPA's Project Coordinator shall have the authority
lawfully vested in a Remedial Project Manager (RPM) and On-Scene
Coordinator (OSC) by the NCP. In addition, EPA's Project
Coordinator shall have the authority consistent with the National
Contingency Plan, to halt any work required by this Consent
Order, and to take any necessary response action when s/he
determines that conditions at the site may present an immediate
endangerment to public health or welfare or the environment. The
absence of the EPA Project Coordinator from the area under study
pursuant to this Consent Order shall not be cause for the
stoppage or delay of work.
53. EPA shall arrange for a qualified person to assist in
its oversight and review of the conduct of the RI/FS, as required
by section 104(a) of CERCLA, 42 U.S.C. $9604(a). The oversight
assistant may observe work and make inquiries in the absence of
EPA, but is not authorized to modify the work plan.
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Annotated OSWER Directive Number 9835.3-2A
XVI. OTHER APPLICABLE LAWS
54. Respondent(s) shall comply with all laws that are
applicable when performing the RI/FS. No local, state, or
federal permit shall be required for any portion of any action
conducted entirely on-site, including studies, where such action
is selected and carried out in compliance with section 121 of
CERCLA.
XVII. RECORD PRESERVATION
55. All records and documents in EPA's and Respondent's
possession that relate in any way to the site shall be preserved
during the conduct of this Consent Order and for a minimum of 10
years after commencement of construction of any remedial action.
The Respondent(s) shall acquire and retain copies of all
documents that relate to the site and are in the possession of
its employees, agents, accountants, contractors, or attorneys.
After this 10 year period, the Respondent(s) shall notify EPA at
least 90 days before the documents are scheduled to be destroyed.
If EPA requests that the documents be saved, the Respondent(s)
shall, at no cost to EPA, give EPA the documents or copies of the
documents. ' '
XVIII. DISPUTE RESOLUTION
56. Any disputes concerning activities or deliverables
required under this Order, excluding the baseline risk
assessment, for which dispute resolution has been expressly
provided for, shall be resolved as follows: If the Respondent(s)
objects to any EPA notice of disapproval or requirement made
pursuant to this Consent Order, Respondent(s) shall notify EPA's
Project Coordinator in writing of its objections within 14 days
of receipt of the disapproval notice or requirement.
Respondent(s)' written objections shall define the dispute, state
the basis of Respondent(s)' objections, and be sent certified
mail, return receipt requested. EPA and the Respondent(s) then
have an additional 14 days to reach agreement. If an agreement
is not reached within 14 days, Respondent may request a
determination by EPA's [Branch Chief/Division Director]. The
[Branch Chief's/Division Director's] determination is EPA's final
decision. Respondent(s) shall proceed in accordance with EPA's
final decision regarding the matter in dispute, regardless of
whether Respondent(s) agrees with the decision. If the
Respondent(s) does not agree to perform or does not actually
perform the work in accordance with EPA's final decision, EPA
reserves the right in its sole discretion to conduct the work
itself, to seek reimbursement from the Respondent(s), to seek
enforcement of the decision, to seek stipulated penalties, and/or
to-seek any other appropriate relief.
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Annotated OSWER Directive Number 9835.3-2A
57. Respondent(s) is not relieved of its obligations to
perform and conduct activities and submit deliverables on the
schedule set forth in the work plan, while a matter is pending in
dispute resolution. The invocation of dispute resolution does
not stay stipulated penalties under this Order.
XIX. DELAY IN PERFORMANCE/STIPULATED PENALTIES
58. For each day that the Respondent(s) fails to complete a
deliverable in a timely manner or fails to produce a deliverable
of acceptable quality, or otherwise fails to perform in
accordance with the requirements of this Order, Respondent(s)
shall be liable for stipulated penalties. Penalties begin to
accrue on the day that performance is due or a violation occurs,
and extend through the period of correction. Where a revised
submission by Respondent(s) is required, stipulated penalties
shall continue to accrue until a satisfactory deliverable is
produced. EPA will provide written notice for violations that
are not based on timeliness; nevertheless, penalties shall accrue
from the day a violation commences. Payment shall be due within
30 days of receipt of a demand letter from EPA.
59. Respondents shall pay interest on the unpaid balance,
which shall begin to accrue at the end of the 30-day period, at
the rate established by the Department of Treasury pursuant to 30
U.S.C. §3717. Respondents shall further pay a handling charge of
1 percent, to be assessed at the end of each 31 day period, and a
6 percent per annum penalty charge, to be assessed if the penalty
is not paid in full within 90 days after it is due.
60. Respondent(s) shall make all payments by forwarding a
check to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
Checks should identify the name of the site, the site
identification number, the account number, and the title of this
Order. A copy of the check and/or transmittal letter shall be
forwarded to the EPA Project Coordinator.
61. For the following major deliverables, stipulated
penalties shall accrue in the amount of per day, per
violation, for the first seven days of noncompliance; per
day, per violation, for the 8th through 14th day of
noncompliance; per day, per violation, for the 15th day
through the 30th day; and per day per violation for all
violations lasting beyond 30 days.
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Annotated OSWER Directive Number 9835.3-2A
1) An original and any revised work plan.
2) An original and any revised sampling and analysis plan.
3) An original and any revised remedial investigation
report.
4) An original and any revised treatability testing work
plan.
5) An original and any revised treatability study sampling
and analysis plan.
6) An original and any revised feasibility study report.
62. For the following interim deliverables, stipulated
penalties shall accrue in the amount of per day, per
violation, for the first week of noncompliance; per day, per
violation, for the 8th through 14th day of noncompliance;
per day, per violation, for the 15th day through the 30th day of
noncompliance; and per day per violation for all violations
lasting beyond 30 days.
1) Technical memorandum on modeling of site
characteristics.
2) Preliminary site characterization summary.
3) Summary of RI data (electronically formatted),
4) Identification of candidate technologies memorandum.
5) Treatability testing statement of work.
6) Treatability study evaluation report.
7) Memorandum on remedial action objectives.
8) Memoranda on development and preliminary screening of
alternatives, assembled alternatives screening
results, and final screening.
9) Comparative analysis report.
63. For the monthly progress reports, stipulated penalties
shall accrue in the amount of per day, per violation, for
the first week of noncompliance; per day, per violation, for
the 8th through 14th day of noncompliance; • per day, per
violation, for the 15th day through the 30th day; and per
day, per violation, ,for all violations lasting beyond 30 days.
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Annotated OSWER Directive Number 9835.3-2A
64. Respondent(s) nay dispute EPA's right to the stated
amount of penalties by invoking the dispute resolution procedures
under Section XVII herein. Penalties shall accrue but need not
be paid during the dispute resolution period. If Respondent(s)
do not prevail upon resolution, all penalties shall be due to EPA
within 30 days of resolution of the dispute. If Respondent(s)
prevails upon resolution, no penalties shall be paid.
65. In the event that EPA provides for corrections to be
reflected in the next deliverable and does not require
resubmission of that deliverable, stipulated penalties for that
interim deliverable shall cease to accrue on the date of such
decision by EPA.
66. The stipulated penalties provisions do not preclude EPA
from pursuing any other remedies or sanctions which are available
to EPA because of the Respondent(s)• failure to comply with this
Consent Order, including but not limited to conduct of all or
part of the RI/FS by EPA. Payment of stipulated penalties does
not alter Respondent(s)' obligation to complete performance under
this Consent Order.
XX. FORCE MAJEURE
67. "Force majeure", for purposes of this Consent Order, is
defined as any event arising from causes entirely beyond the
control of the Respondent(s) and of any entity controlled by
Respondent(s), including their contractors and subcontractors,
that delays the timely performance of any obligation under this
Consent Order notwithstanding Respondent(s)• best efforts to
avoid the delay. The requirement that the Respondent(s) exercise
"best efforts to avoid the delay" includes using best efforts to
anticipate any potential force majeure event and best efforts to
address the effects of any potential force majeure event (1) as
it is occurring and (2) following the potential force majeure
event, such that the delay is minimized to the greatest extent
practicable. Examples of events that are not force majeure
events include, but are not limited to, increased costs or
expenses of any work to be performed under this Order or the
financial difficulty of Respondent(s) to perform such work.
68. If any event occurs or has occurred that nay delay the
performance of any obligation under this Order, whether or not
caused by a force majeure event, Respondent(s) shall notify by
telephone the Remedial Project Manager or, in his or her absence,
the Director of the Hazardous Waste Management Division, EPA
Region , within 48 hours of when the Respondent(s) knew or
should have known that the event night cause a delay. Within
five business days thereafter, Respondent(s) shall provide in
writing the reasons for the delay; the anticipated duration of
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Annotated OSWER Directive Number 9835.3-2A
the delay; all actions taken or to be taken to prevent or
minimize the delay; a schedule for implementation of any measures
to be taken to mitigate the effect of the delay; and a statement
as to whether, in the opinion of Respondent(s), such event may
cause or contribute to an endangerment to public health, welfare
or the environment. Respondent(s) shall exercise best efforts to
avoid or minimize any delay and any effects of a delay. Failure
to comply with the above requirements shall preclude
Respondent(s) from asserting any claim of force majeure.
** * *
69. if EPA agrees that the delay or anticipated delay is
attributable to force majeure, the time for performance of the
obligations under this Order that are directly affected by the
force majeure event shall be extended by agreement of the
parties, pursuant to section XXVI of this Order, for a period of
time not to exceed the actual duration of the delay caused by the
force majeure event. An extension of the time for performance of
the obligation directly affected by the force majeure event shall
not, of itself, extend the time for performance of any subsequent
obligation.
70. If EPA does not agree that the delay or anticipated
delay has beeh or will be caused by a force majeure event, or
does not agree with Respondent(s) on the length of the extension,
the issue shall be subject to the dispute resolution procedures
set forth in section XVII of this Order. In any such proceeding,
to qualify for a force majeure defense, Respondent(s) shall have
the burden of demonstrating by a preponderance of the evidence
that the delay or anticipated delay has been or will be caused by
a force majeure.event, that the duration of the delay was or will
be warranted under the circumstances, that Respondent(s) did
exercise or is exercising due diligence by using its best efforts
to avoid and mitigate the effects of the delay, and that
Respondent(s) complied with the requirements of paragraph 66.
71. Should Respondent(s) carry the burden set forth in
paragraph 65, the delay at issue shall be deemed not to be a
violation of the affected obligation of this Consent Order.
XXI. REIMBURSEMENT OF PAST COSTS
[Note that the Agency cannot compromise past costs unless the
consent order is also issued under $122(h)(l), and the
requirements of $122(h)(l) are also met, i.e., prior written
approval of the Attorney General is obtained if the total past
and projected response costs exceed $500,000, excluding
interest.]
72. Within 15 days of the effective date of this Order,
Respondent(s) shall remit a certified or cashiers check to EPA in
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Annotated OSWER Directive Number 9835.3-2A
the amount of $ , as previously demanded in the RI/FS Special
Notice Letter dated , together with interest that has
accrued thereon at the rate of interest specified for the
Hazardous Substances Superfund under CERCLA section 107(a), for
all past response costs incurred by the United States in its
[e.g., conduct of the removal action] at the site from
[date] to [date].
73. Checks should be made payable to the Hazardous
Substances Superfund and should include the name of the site, the
site identification number, the operable unit, if any, the
Regional Lock Box Number account number and the title of this
Order. Checks should be forwarded to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
74. A copy of the check should be sent simultaneously to
the EPA Project Coordinator.-
XXII. REIMBURSEMENT OF RESPONSE AND OVERSIGHT COSTS
75. Following the issuance of this Consent Order, EPA shall
submit to the Respondent(s) on a periodic basis an accounting of
all response costs including oversight costs incurred by the U.S.
Government with respect to this RI/FS. Response costs may
include, but are not limited to, costs incurred by the U.S.
Government in overseeing Respondent(s)' implementation of the
requirements of this Order and activities performed by the
government as part of the RI/FS and community relations,
including any costs incurred while obtaining access. Costs shall
include all direct and indirect costs, including, but not limited
to, time and travel costs of EPA personnel and associated
indirect costs, contractor costs, cooperative agreement costs,
compliance monitoring, including the collection and analysis of
split samples, inspection of RI/FS activities, site visits,
discussions regarding disputes that may arise as a result of this
Consent Order, review and approval or disapproval of reports,
costs of performing the baseline risk assessment, and costs of
redoing any of Respondent(s)• tasks. Any necessary summaries,
including, but not limited to EPA's certified Agency Financial
Management System summary data (SPUR Reports), or such other
summary as certified by EPA, shall serve as basis for payment
demands.
76. Respondent(s) shall, within 30 days of receipt of each
accounting, remit a certified or cashier's check for the amount
of those costs. Interest shall accrue from the later of: the
date payment of a specified amount is demanded in writing; or the
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Annotated OSWER Directive Number 9835.3-2A
date of the expenditure. The interest rate is the rate of
interest on investments for the Hazardous Substances Superfund in
section 107(a) of CERCLA.
77. Checks should be made payable to the Hazardous
Substances Superfund and should include the name of the site, the
site identification number, the account number and the title of
this Order. Checks should be forwarded to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
78. Copies of the transmittal letter and check should be
sent simultaneously to the EPA Project Coordinator.
79. Respondent(s) agrees to limit any disputes concerning
costs to accounting errors and the inclusion of costs outside the
scope of this Consent Order. Respondent(s) shall identify any
contested costs and the basis of its objection. All undisputed
costs shall be remitted by Respondent(s) in accordance with the
schedule set forth above. Disputed costs shall be paid by
Respondent(s) into an escrow account while the dispute is
pending. Respondent(s) bears the burden of establishing an EPA
accounting error or the inclusion of costs outside the scope of -
this Consent Order.
XXIII. RESERVATIONS OF RIGHTS AND REIMBURSEMENT OF OTHER COSTS
80. EPA reserves the right to bring an action against the
Respondent(s) under section 107 of CERCLA for recovery of all
response costs including oversight costs, incurred by the United
States at the site that are not reimbursed by the Respondent(s),
any costs incurred in the event that EPA performs the RI/FS or
any part thereof, and any future costs incurred by the United
States in connection with response activities conducted under
CERCLA at this site.
81. EPA reserves the right to bring an action against
Respondent(s) to enforce the past costs and response and
oversight cost reimbursement requirements of this Consent Order,
to collect stipulated penalties assessed pursuant to section
XVIII of this Consent Order, and to seek penalties pursuant to
section 109 of CERCLA, 42 U.S.C. S9609.
82. Except as expressly provided in this Order, each party
reserves all rights and defenses it may have. Nothing in this
Consent Order shall affect EPA's removal authority or EPA's
response or enforcement authorities including, but not limited
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Annotated OSWER Directive Number 9835.3-2A
to, the right to seek injunctive relief, stipulated penalties,
statutory penalties, and/or punitive damages.
83. Following satisfaction of the requirements of this
Consent Order, Respondent(s) shall have resolved its liability to
EPA for the work performed by Respondent(s) pursuant to this
Consent Order. Respondent(s) is not released from liability, if
any, for any response actions taken beyond the scope of this
Order regarding removals, other operable units, remedial
design/remedial action of this operable unit, or activities
arising pursuant to section 121(c) of CERCLA.
XXIV. DISCLAIMER
84. By signing this Consent Order and taking actions under
this Order, the Respondent(s) does not necessarily agree with
EPA's Findings of Fact and Conclusions of Law. Furthermore, the
participation of the Respondent(s) in this Order shall not be
considered an admission of liability and is not admissible in
evidence against the Respondent(s) in any judicial or
administrative proceeding other than a proceeding by the United
States, including EPA, to enforce this Consent Order or a
judgment relating to it. Respondent(s) retains its rights to
assert claims against other potentially responsible parties at
the site. However, the Respondent(s) agrees not to contest the
validity or terms of this Order, or the procedures underlying or
relating to it in any action brought by the United States,
including EPA, to enforce its terms.
XXV. OTHER CLAIMS
85. In entering into this Order, Respondent(s) waives any
right to seek reimbursement under section 106(b) of CERCLA.
Respondent also waives any right to present a claim under section
111 or 112 of CERCLA. This Order does not constitute any
decision on preauthorization of funds under section lll(a)(2) of
CERCLA. Respondent(s) further waives all other statutory and
common law claims against EPA, including, but not limited to,
contribution and counterclaims, relating to or arising out of
conduct of the RI/FS.
86. Nothing in this Order shall constitute or be construed
as a release from any claim, cause of action or demand in law or
equity against any person, firm, partnership, subsidiary or
corporation not a signatory to this Consent Order for any
liability it may have arising out of or relating in any way to
the generation, storage, treatment, handling, transportation,
release, or disposal of any hazardous substances, pollutants, or
contaminants found at, taken to, or taken from the site.
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Annotated OSWER Directive Number 9835.3-2A
87. Respondent(s) shall bear its own costs and attorneys
fees.
XXVI. FINANCIAL ASSURANCE. INSURANCE. AND INDEMNIFICATION
88. Respondent(s) shall establish and maintain a financial
instrument or trust account or other financial mechanism
acceptable to EPA, funded sufficiently to perform the work and
any other obligations required under this Consent Order,
including a margin for cost overruns. Within 15 days after the
effective date of this Consent Order, Respondent(s) shall fund
the financial instrument or trust account sufficiently to perform
the work required under this Consent Order projected for the
period beginning with the effective date of the Order through
. Beginning , and on or before the 15th calendar
day of each calendar year quarter thereafter, Respondent(s) shall
fund the financial instrument or trust account sufficiently to
perform the work and other activities required under this Order
projected for the succeeding calendar year quarter.
89. If at any time the net worth of the financial
instrument or trust account is insufficient to perform the work
and other obligations under the Order for the upcoming quarter,
Respondent(s) shall provide written notice to EPA within 7 days
after the net worth of the financial instrument or trust account
becomes insufficient. The written notice shall describe why the
financial instrument or trust account is funded insufficiently
and explain what actions have been or will be taken to fund the
financial instrument or trust account adequately.
90. (a) Prior to commencement of any work under this
Order, Respondent(s) shall secure, and shall maintain in force
for the duration of this Order, and for two years after the
completion of all activities required by this Consent Order,
Comprehensive General Liability ("CGL") and automobile insurance,
with limits of $ million dollars, combined single limit,
naming as insured the United States. The CGL insurance shall
include Contractual Liability Insurance in the amount of $
per occurrence, and Umbrella Liability Insurance in the amount of
$2 million per occurrence.
(b) Respondent(s) shall also secure, and maintain in
force for the duration of this Order and for two years after the
completion of all activities required by this Consent Order the
following:
i. Professional Errors and Omissions Insurance in
the amount of $1,000,000.00 per occurrence.
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Annotated OSWER Directive Number 9835.3-2A
ii. Pollution Liability Insurance in the amount of
$1,000,000.00 per occurrence, covering as
appropriate both general liability and
professional liability arising from pollution
conditions.
(c) For the duration of this Order, Respondent(s)
shall satisfy, or shall ensure that their contractors or
subcontractors satisfy, all applicable laws and regulations
regarding the provision of employer's liability insurance and
workmen's compensation insurance for all persons performing work
on behalf of the Respondent(s), in furtherance of this Order.
(d) If Respondent(s) demonstrates by evidence
satisfactory to EPA that any contractor or subcontractor
maintains insurance equivalent to that described above, or
insurance covering the same risks but in a lesser amount, then
with respect to that contractor or subcontractor Respondent(s)
need provide only that portion of the insurance described above
which is not maintained by the contractor or subcontractor.
(e) Prior to commencement of any work under this
Order, and annually thereafter on the anniversary of the
effective date of this Order, Respondent(s) shall provide to EPA
certificates of such insurance and a copy of each insurance
policy.
91. At least 7 days prior to commencing any work under this
Consent Order, Respondent(s) shall certify to EPA that the
required insurance has been obtained by that contractor.
92. The Respondent(s) agrees to indemnify and hold the
United States Government, its agencies, departments, agents, and
employees harmless from any and all claims or causes of action
arising from or on account of acts or omissions of Respondent(s),
its employees, agents, servants, receivers, successors, or
assignees, or any persons including, but not limited to, firms,
corporations, subsidiaries and contractors, in carrying out
activities under this Consent Order. The United States
Government or any agency or authorized representative thereof
shall not be held as a party to any contract entered into by
Respondent(s) in carrying out activities under this Consent
Order.
XXVII. EFFECTIVE DATE AND SUBSEQUENT MODIFICATION
93. The effective date of this Consent Order shall be the
date it is signed by EPA.
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Annotated OSWER Directive Number 9835.3-2A
94. This Consent Order nay be amended by mutual agreement
of EPA and Respondent(s). Amendments shall be in writing and
shall be effective when signed by EPA. EPA Project Coordinators
do not have the authority to sign amendments to the Consent
Order.
95. No informal advice, guidance, suggestions, or comments
by EPA regarding reports, plans, specifications, schedules, and
any other writing submitted by the Respondent(s) will be
construed as relieving the Respondent(s) of its obligation to
obtain such formal approval as may be required by this Order.
Any deliverables, plans, technical memoranda, reports (other than
progress reports), specifications, schedules and attachments
required by this Consent Order are, upon approval by EPA,
incorporated into this Order.
XXVIII. TERMINATION AND SATISFACTION
96. This Consent Order shall terminate when the
Respondent(s) demonstrates in writing and certifies to the
satisfaction of EPA that all activities required under this.
Consent Order, including any additional work, payment of past
costs, response and oversight costs, and any stipulated penalties
demanded by EPA, have been performed and EPA has approved the
certification. This notice shall not, however, terminate
Respondent(s)' obligation to comply with Sections XVI, XXI, and
XXII of this Consent Order.
97. The certification shall be signed by a responsible
official representing each Respondent. Each representative shall
make the following attestation: "I certify that the information
contained in or accompanying this certification is true,
accurate, and complete." For purposes of this Consent Order, a
responsible official is a corporate official who is in charge of
a principal business function.
BY: DATE:
(Respondent(s))Title
BY: DATE:
Regional Administrator [or Delegatee]
U.S. Environmental Protection Agency
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