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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
MAY 27 1988
OFFICE OF
SOLID WASTE AND EMERGENCY "ESPC"
MEMORANDUM
SUBJECT: Agreement with the Department of Energy-
Model Provisions for CERCLA Federal Facility
Agreements,
FROM: J.^inston Porter
Assistant Administrator
TO: Regional Administrators
Regions I-X
I am pleased to transmit to you model language for key
provisions of CERCLA Federal Facility Agreements with the
Department of Energy (DOE). This language has been mutually
agreed to by EPA and DOE Headquarters..
The attached provisions deal primarily with policy issues
which required agreement between the two Agencies before site-
specific agreements could be finalized. The attached language
should be incorporated into the agreements you are now
negotiating, and into future agreements, to insure national
consistency in dealing with DOE facilities which involve CERCLA
activities. Language in brackets indicates those areas which can
be adjusted depending on site-specific considerations.
Please note that there are many other important parts of the
agreements which the Region must negotiate, notably those
sections dealing with the actual work that needs to be performed
at each specific DOB site and the schedules to be met. Attached,
therefore, is a generic table of contents which lists other
important sections which are normally included in the agreements,
but which do not require model language. Also, individual State
concerns should be factored into each agreement, as it is highly
desirable that States participate in Federal facility cleanups.
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-2-
I hope these model provisions will help you in quickly
concluding the negotiations you are currently conducting with
DOE, and that such negotiations will now become more routine. If
you have any questions about these provisions or their
implementation, please contact Christopher Grundler, Director of
the Federal Facilities Compliance Task Force, OWPE, at 475-9801.
Task Force staff is available to support your negotiations, or
to answer questions which may come up relating to the model
provisions.
I look forward to working with you as we continue to work
toward making Federal facility environmental compliance a model
for others.
Attachments
cc: Lee Thomas, EPA
Jim Barnes, EPA
Ernest Baynard, DOE
Roger Marzulla, OOJ
Tom Adams, OECM
Lawrence Jensen, OGC
Jennifer Joy Wilson, OEA
Waste Management Division Directors
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION
AND THE
UNITED STATES DEPARTMENT OF ENERGY
IN THE MATTER OF: )
)
The U.S. Department ) FEDERAL FACILITY
of Energy's ) AGREEMENT UNDER
) CERCLA SECTION 120
[NAME OF FACILITY] )
) Administrative
) Docket Number:
Based on the information available to the Parties on the
effective date of this FEDERAL FACILITY AGREEMENT (Agreement),
and without trial or adjudication of any issues of fact or law,
the Parties agree as follows:
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JURISDICTION
Each Party is entering into this Agreement pursuant to
the following authorities:
(i) The U.S. Environmental Protection Agency (U.S. EPA),
Region , enters into those portions of this Agreement that
relate to the remedial investigation/feasibility study (RI/FS)
pursuant to Section 120(e)(1) of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA),
42 U.S.C. § 9620(e)(l), as amended by the Superfund Amendments
and Reauthorization Act of 1986 (SARA), Pub. L. 99-499
(hereinafter jointly referred to as CERCLA/SARA or CERCLA) and
[Sections 6001, 3008(h) and 3004(u) and (v) of] the Resource
Conservation and Recovery Act (RCRA), 42 U.S.C. [58 6961,
6928(h), 6924(u) and (v),] as amended by the Hazardous and Solid
Waste Amendments of 1984 (HSWA)(hereinafter jointly referred to
as RCRA/HSWA or RCRA) and Executive Order 12580;
(ii) U.S. EPA, Region , enters into those portions of
this Agreement that relate to interim remedial actions and final
remedial actions pursuant to Section 120(e)(2) of CERCLA/SARA,
[Sections 6001, 3008(h) and 3004(u) and (v) of] RCRA and
Executive Order 12580;
(iii) the DOE enters into those portions of this Agreement
that relate to the RI/FS pursuant to Section 120(e)(l) of CERCLA,
[Sections 6001, 3008(h) and 3004(u) and(v) of] RCRA, Executive
Order 12580, the National Environmental Policy Act, 42 U.S.C.
§4321, and the Atomic Energy Act of 1954 (AEA), as amended, 42
U.S.C. §2201;
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(iv) the DOE enters into those portions of this Agreement
that relate to interim remedial actions and final remedial
actions pursuant to Section 120(e)(2) of CERCLA/SARA, [Sections
6001, 3004(u) and 3008(h) of] RCRA, Executive Order 12580 and the
AEA.
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PURPOSE
A. The general purposes of this Agreement are to:
(1) ensure that the environmental impacts associated
with past and present activities at the Site are thoroughly
investigated and appropriate remedial action taken as necessary
to protect the public health/ welfare and the environment;
(2) establish a procedural framework and schedule for
developing, implementing and monitoring appropriate response
actions at the Site in accordance with CERCLA/SARA/ the NCP,
Superfund guidance and policy/ RCRA/ RCRA guidance and policy;
and/
(3) facilitate cooperation/ exchange of information and
participation of the Parties in such actions. -
B. Specifically/ the purposes of this Agreement are to:
(1) Identify Interim Remedial Action (IRA)
alternatives which are appropriate at the Site prior to the
implementation of final remedial action(s) for the Site. IRA
alternatives shall be identified and proposed to the Parties as
early as possible prior to formal proposal of IRAs to U.S. EPA
pursuant to CERCIA/ SARA. This process is designed to promote
cooperation among the Parties in identifying IRA alternatives
prior to selection of final IRAs.
(2) Establish requirements for the performance of a RI
to determine fully the nature and extent of the threat to the
public health or welfare or the environment caused by the
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release and threatened release of hazardous substances,
pollutants or contaminants at the Site and to establish
requirements for the performance of a FS for the Site to
identify/ evaluate, and select alternatives for the appropriate
remedial action(s) to prevent, mitigate, or abate the release or
threatened release of hazardous substances, pollutants or
contaminants at the Site in accordance with CERCLA/SARA.
(3) Identify the nature, objective and schedule of
response actions to be taken at the Site. Response actions at
the site shall attain that degree of cleanup of hazardous
substances, pollutants or contaminants mandated by CERCLA/SARA.
(4) Implement the selected interim and final remedial
action(s) in accordance with CERCLA/SARA.
(5) Assure compliance with- federal and state hazardous
waste laws and regulations for matters covered by this Agreement.
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STATUTORY COMPLIANCE/RCRA-CERCLA INTEGRATION
A. The Parties intend to integrate the DOE's CERCLA
response obligations and RCRA corrective action obligations which
relate to the release(s) of hazardous substances, hazardous
wastes, pollutants, or contaminants covered by this Agreement into
this comprehensive Agreement. Therefore, the Parties intend that
activities covered by this Agreement will be deemed to achieve
compliance with CERCLA, 42 U.S.C. §9601 &£ ssfl.; to satisfy the
corrective action requirements of Sections 3004(u) and (v) of
RCRA, 42 U.S.C. §6924(u) and (v), for a RCRA permit, and Section
3"08(h), 42 U.S.C. §6928(h), for interim status facilities; and
to meet or exceed all applicable or relevant and appropriate
Federal and state laws and regulations, to the extent required by
Section 121 of CERCLA, 42 U.S.C. §9621.
B. Based upon the foregoing, the Parties intend that any
remedial action selected, implemented and completed under this
Agreement shall be deemed by the Parties to be protective of
human health and the environment such that remediation of
releases covered by this Agreement shall obviate the need for
further corrective action under RCRA. The Parties agree that
with respect to releases of hazardous waste covered by this
Agreement, RCRA shall be considered an applicable or relevant and
appropriate requirement pursuant to Section 121 of CERCLA.
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C. If a permit is issued to the DOE for on-going hazardous
waste management activities at the Site, U.S. EPA shall
reference and incorporate any appropriate provisions, including
appropriate schedules (and the provision for extension of such
schedules), of this Agreement into such permit. The Parties
intend that the judicial review of any permit conditions which
reference this Agreement shall, to the extent authorized by law,
only be reviewed under the provisions of CERCLA.
0. Nothing in this Agreement shall altar the DOE's
authority with respect to removal actions conducted pursuant to
Section 104 Of CERCLA, 42 U.S.C. §9604.
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CONSULTATION WITH U.S. EPA
Review and Comment Process for Draft and Final Documents
A. Applicability;
The provisions of this Part establish the procedures that
shall be used by the DOE and U.S. EPA to provide the Parties with
appropriate notice, review, comment, and response to comments
regarding RI/FS and RD/RA documents, specified herein as either
primary or secondary documents. In accordance with Section 120
of CERCLA and 10 U.S.C. §2705, the DOE will normally be
responsible for issuing primary and secondary documents to U.S.
EPA. As of the effective date of this Agreement, all draft and
final reports for any deliverable document identified herein
shall be prepared, distributed and subject to dispute in
accordance with Paragraphs B through J below.
The designation of a document as "draft" or "final" is
solely for purposes of consultation with U.S. EPA in accordance
with this Part. Such designation does not.affect the obligation
of the Parties to issue documents, which may be referred to
herein as "final1*, to the public for review and comment as
appropriate and as required by law.
B. General Process for RI/FS and RD/RA documents:
1. Primary documents include those reports that are major,
discrete portions of RI/FS or RD/RA activities. Primary
documents are initially issued by the DOE in draft subject to
review and comment by U.S. EPA. Following receipt of comments on
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a particular draft primary document, the DOE will respond to the
comments received and issue a draft final primary document
subject to dispute resolution. The draft final primary document
will become the final primary document either 30 days after the
period established for review of a draft final document if
dispute resolution is not invoked or as modified by decision of
the dispute resolution process.
2. Secondary documents include those reports that are
discrete portions of the primary documents and are typically
input or feeder documents. Secondary documents are issued by the
DOE in draft subject to review and comment by U.S. EPA. Although
the DOE will respond to comments received, the draft secondary
documents may be finalized in the context of the corresponding
primary documents. A secondary document may be disputed at the
time the corresponding draft final primary document is issued.
C. Primary Reports;
1. The DOE shall complete and transmit draft reports for
the following primary documents to J.S. EPA for review and
comment in accordance with the provisions of this Part:
[Note: The list set forth below represents potential
primary documents and the type of information that typically
would be generated during a CERCLA cleanup at an NPL site. This
list, and the list below of secondary documents, includes
discrete portions of the RI/FS or RD/RA and are subject to change
in accordance with the NCP, DOE and U.S. EPA guidance, and site
specific requirements. In practice, the documents- will also
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vary with scope and nature of the project, and may either be
combined or broken out into separate volumes.]
1. [Scope of Work]
2. [RI/FS Work Plan, including Sampling and
Analysis Plan and QAPP]
3. [Risk Assessment]
4. [RI Report]
5. [Initial Screening of Alternatives]
6. [FS Report] x
7. [Proposed Plan]
8. [Record of Decision]
9. [Remedial Design]
10. [Remedial Action Work Plan]
2. only the draft final reports 'for the primary documents
identified above shall be subject to dispute resolution. The
DOE shall complete and transmit draft primary documents in
accordance with the timetable and deadlines established in Part
of this agreement.
D. Secondary Documents!
1. The DOE shall complete and transmit draft reports for
the following secondary documents to U.S. EPA for review and
comment in accordance with the provisions of this Part:
1. [Initial Remedial Action / Data Quality
Objectives]
2. [Site Characterization Summary]
3. [Detailed Analysis of Alternatives]
4. [Post-screening Investigation Work Plan]
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5. [Treatability Studies]
6. [Sampling and Data Results]
2. Although U.S. EPA may comment on the draft reports for
the secondary documents listed above, such documents shall not be
subject to dispute resolution except as provided by Paragraph B
hereof. Target dates shall be established for the completion and
transmission of draft secondary reports pursuant to Part
of this Agreement.
E. Meetings of the Project Managers on Development of
Reports:
The Project Managers shall meet approximately every [30]
days, except as otherwise agreed by the Parties, to review and
discuss the progress of work being performed at the site on the
primary and secondary documents. Prior to preparing any draft
report specified in Paragraphs C and D above, the Project
Managers shall meet to discuss the report results in an effort to
reach a common understanding, to the maximum extent practicable,
with respect to the results to be presented in the draft report.
F. Identification and Determination of Potential ARARs;
1. For those primary reports or secondary documents that
consist of or include ARAB determinations, prior to the issuance
of a draft report, the Project Managers shall meet to identify
and propose, to the best of their ability, all potential ARARs
pertinent to the report being addressed. Draft ARAR
determinations shall be prepared by the DOE in accordance with
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Section 121(d)(2) of CERCLA, the NCP and pertinent guidance
issued by U.S. EPA, which is not inconsistent with CERCLA and the
NCP.
2. In identifying potential ARARs, the Parties recognize
that actual ARARs can be identified only on a site-specific basis
and that ARARs depend on the specific hazardous substances,
pollutants and contaminants at a site, the particular actions
proposed as a remedy and the characteristics of a site. The
Parties recognize that ARAR identification is necessarily an
iterative process and that potential ARARs must be re-examined
throughout the RI/FS process until a ROD is issued.
G. Review and•Comment on Draft Reports;
1. The DOE shall complete and transmit each draft primary
report to U.S. EPA on or before the corresponding deadline
established for the issuance of the report. The DOE shall
complete and transmit the draft secondary document in accordance
with the target dates established for the issuance of such
reports established pursuant to Part of this Agreement.
2.• Unless the Parties mutually agree to another time
period, all draft reports shall be subject to a 30-day period for
review and comment. Review of any document by the U.S. EPA may
concern all aspects of the report (including completeness) and
should include, but is not limited to, technical evaluation of
any aspect of the document, and consistency with CERCLA, the NCP
and any pertinent guidance or policy promulgated by the U.S. EPA.
Comments by the U.S. EPA shall be provided with adequate
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specificity so that the DOE may respond to the comment and, if
appropriate, make changes to the draft report. Comments shall
refer to any pertinent sources of authority or references upon
which the comments are based, and, upon request of the DOE, the
U.S. EPA shall provide a copy of the cited authority or
reference. In cases involving complex or unusually lengthy
reports, U.S. EPA may extend the 30-day comment period for an
additional 20 days by written notice to the DOE prior to the end
of the 30-day period. On or before the close of the comment
period, U.S. EPA shall transmit by next day mail their written
comments to the DOE.
3. Representatives of the DOE shall make themselves readily
available to U.S. EPA during the comment period for purposes of
informally responding to questions and comments on draft reports.
Oral comments made during such discussions need not be the
subject of a written response by the DOE on the close of the
comment period.
4. In commenting on a draft report which contains a
proposed ARAR determination, U.S. EPA shall include a reasoned
statement of whether they object to any portion of the proposed
ARAR determination. To the extent that U.S. EPA does object, it
shall explain the bases for its objection in detail and shall
identify any ARARs which it believes were not properly addressed
in the proposed ARAR determination.
5. Following the close of the comment period for a draft
report, the DOE shall give full consideration to all written
comments on the draft report submitted during the comment
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period. Within 30 days of the close of the comment period on a
draft secondary report, the DOE shall transmit to U.S. EPA its
written response to comments received within the comment period.
Within 30 days of the close of the comment period on a draft
primary report, the DOE shall transmit to U.S. EPA a draft final
primary report, which shall include the DOE's response to all
written comments, received within the comment period. While the
resulting draft final report shall be the responsibility of the
DOE, it shall be the product of consensus to the maximum extent
possible.
6. The DOE may extend the 30-day period for either
responding to comments on a draft report or for issuing the draft
final primary report for an additional 20 days by providing
notice to U.S. EPA. In appropriate circumstances, this time
period may be further extended in accordance with Part
hereof. .
H. Availability of Dispute Resolution for Draft Final
Primary Documents;
1. Dispute resolution shall be available to the Parties for
draft final primary reports as set forth in Part .
2. Whan dispute resolution is invoked on a draft primary
report, work may be stopped in accordance with the procedures set
forth in Part regarding dispute resolution.
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I. Finalization of Reports;
The draft final primary report shall serve as the final
primary report if no party invokes dispute resolution regarding
the document or, if invoked/ at completion of the dispute
resolution process should the DOE's position be sustained. If
the DOE's determination is not sustained in the dispute
resolution process, the DOE shall prepare, within not more than
35 days, a revision of the draft final report which conforms to
the results of dispute resolution. In appropriate circumstances,
the time period for this revision period may be extended in
accordance with Part hereof.
J. Subsequent Modifications of Final Reports;
Following finalization of any primary report pursuant to
Paragraph I above, U.S. EPA or the DOE may seek to modify the
report, including seeking additional field work, pilot studies,
computer modeling or other supporting technical work, only as
provided in Paragraphs 1 and 2 below.
1. U.S. EPA or the DOE may seek to modify a report after
finalization if it determines, based on new information (i.e.,
information that became available, or conditions that became
known, after the report was finalized) that the requested
modification is necessary. U.S. EPA or the DOE may seek such a
modification by submitting a concise written request to the
Project Manager of the other Party. The request shall specify
the nature of the requested modification and how the request is
based on new information.
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2. In the event that a consensus is not reached by the
Project Managers on the need for a modification, either U.S. EPA
or the DOE may invoke dispute resolution to determine if such
modification shall be conducted. Modification of a report shall
be required only upon a showing that: (1) the requested
modification is based on significant new information, and (2) the
requested modification could be of significant assistance in
evaluating impacts on the public health or the environment, in
evaluating the selection of remedial alternatives, or in
protecting human health and the environment. '
3. Nothing in this Subpart shall alter U.S. EPA's ability
to request the performance of additional work pursuant to Part
of this Agreement (Additional Work) which does not constitute
modification of a final document.
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RESOLUTION OF DISPUTES
Except as specifically set forth elsewhere in this
Agreement, if a dispute arises under this Agreement, the
procedures of this Part shall apply.
All Parties to this Agreement shall make reasonable efforts
to informally resolve disputes at the Project Manager or
immediate supervisor level. If resolution cannot be achieved
informally, the procedures of this Part shall be implemented to
resolve a dispute.
A. Within thirty (30) days after: (1) the period
established for review of a draft final primary document pursuant
to Part (Review of Submittals) of this Agreement, or (2) any
action which leads to or generates a dispute, the disputing
Party shall submit to the other Party a written statement of
dispute setting forth the nature of the dispute, the work
affected by the dispute, the disputing Party's position with
respect to the dispute and the information the disputing Party is
relying upon to support its position.
B. Prior to any Party's issuance of a written statement of
dispute, the disputing Party shall engage the other Party in
informal dispute resolution among the Project Managers and/or
their immediate supervisors. During this informal dispute
resolution period the Parties shall meet as many times as are
necessary to discuss and attempt resolution of the dispute.
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C. If agreement cannot be reached on any issue within the
informal dispute resolution period, the disputing Party shall
forward the written statement of dispute to the Dispute
Resolution Committee (DRC) thereby elevating the dispute to the
ORC for resolution.
D. The DRC will serve as a forum for resolution of disputes
for which agreement has not been reached through informal dispute
resolution. The Parties shall each designate one individual and
an alternate to serve on the DRC. The individuals designated to
serve on the DRC shall be employed at the policy level (SES or
equivalent) or be delegated the authority to participate on the
DRC for the purposes of dispute resolution under this Agreement.
The U.S. EPA representative on the DRC is the Waste Management
Division Director of U.S. EPA's Region . The DOE'S
designated member is the [DOE equivalent]. Written notice of any
delegation of authority from a Party's designated representative
on the DRC shall be provided to all other Parties pursuant to the
procedures of Part (Notices).
E. Following elevation of a dispute to the DRC, the DRC
shall have twenty-one (21) days to unanimously resolve the
dispute and issue a written decision. If the DRC is unable to
unanimously resolve the dispute within this twenty-one (21) day
period the written statement of dispute shall be forwarded to the
Senior Executive Committee (SEC) for resolution.
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F. The SEC will serve as the forum for resolution of
disputes for which agreement has not been reached by the ORC.
The U.S. EPA representative on the SEC is the Regional
Administrator of U.S. EPA's Region . The DOE's
representative on the SEC is the DOE Operations Manager. The
SEC members shall, as appropriate, confer, meet and exert their
best efforts to resolve the dispute and issue a written decision.
If unanimous resolution of the dispute is not reached within
twenty-one (21) days, U.S. EPA's Regional Administrator shall
issue a written position on the dispute. The DOE may, within
twenty-one (21) days of the Regional Administrator's issuance of
U.S. EPA's position, issue a written notice elevating the dispute
to the Administrator of U.S. EPA for resolution in accordance
with all applicable laws and procedures. In the event that the
OOE elects not to elevate the dispute to the Administrator within
the designated twenty-one (21) day escalation period, the OOE
shall be deemed to have agreed with Regional Administrator's
written position with respect to the dispute.
G. Upon escalation of a dispute to the Administrator of
U.S. EPA pursuant to Subpart F, the Administrator will review and
resolve the dispute within twenty-one (21) days. Upon request,
and prior to resolving the dispute, the U.S. EPA Administrator
shall meet and confer with the Secretary of the OOE to discuss
the issue(s) under dispute. Upon resolution, the Administrator
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shall provide the DOE with a written final decision setting forth
resolution of the dispute.
H. The pendency of any dispute under this Part shall not
affect the DOE's responsibility for timely performance of the
work required by this Agreement, except that the time period for
completion of work affected by such dispute shall be extended for
a period of time usually not to exceed the actual time taken to
resolve any good faith dispute in accordance with the procedures
specified herein. All elements of the work required by this
Agreement which are not affected by the dispute shall continue
and be completed in accordance with the applicable schedule.
I. When dispute resolution is in progress, work affected
by the dispute will immediately be discontinued if the Hazardous
Waste Division Director for U.S. EPA's Region requests, in
writing, that work related to the dispute be stopped because, in
U.S. EPA's opinion, such work is inadequate or defective, and
such inadequacy or defect is likely to yield an adverse effect on
human health or the environment, or is likely to have a
substantial adverse effect on the remedy selection or
implementation process. To the extent possible, U.S. EPA shall
give the DOE prior notification that a work stoppage request is
forthcoming. After stoppage of work, if the DOE believes that
the work stoppage is inappropriate or may have potential
significant adverse impacts, the DOE may meet with the Division
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Director to discuss the work stoppage. Following this meeting,
and further consideration of the issues, the Division Director
will issue, in writing, a final decision with respect to the work
stoppage. The final written decision of the Division Director
may immediately be subjected to formal dispute resolution. Such
dispute may be brought directly to the either the DRC or the SEC,
at the discretion of the DOE.
c
J. within twenty-one (21) days of resolution of a dispute
pursuant to the procedures specified in this Part, the DOE shall
incorporate the resolution and final determination into the
appropriate plan, schedule or procedures and proceed to implement
this Agreement according to the amended plan, schedule or
procedures.
«•
K. Resolution of a dispute pursuant to this Part of the
Agreement constitutes a final resolution of any dispute arising
under this Agreement. The DOE shall abide by all terms and
conditions of any final resolution of dispute obtained pursuant
to this Part of this Agreement.
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ENFORCEABILITY
A. The Parties agree that:
(1) Upon the effective date of this Agreement, any
standard, regulation, condition, requirement or order which
has become effective under CERCLA and is incorporated into
this Agreement is enforceable by any person pursuant to
Section 310 of CERCLA, and any violation of such standard,
regulation, condition, requirement or order will be subject
to civil penalties under Sections 310(c) and 109 of CERCLA;
and
(2) all timetables or deadlines associated with the
development, implementation and completion of the RZ/FS
shall be enforceable by any person pursuant to Section 310
of CERCLA, and any violation of such timetables or deadlines
will be subject to civil penalties under Sections 310(c) and
109 of CERCLA;
(3) all terms and conditions of this Agreement which
relate to interim or final remedial actions, including
corresponding timetables, deadlines or schedules, and all
work associated with the interim or final remedial actions,
shall be enforceable by any person pursuant to Section
310(c) of CERCLA, and any violation of such terms or
conditions will be subject to civil penalties under
Sections 310(c) and 109 of CERCLA; and
(4) any final resolution of a dispute pursuant to Part
of this Agreement which establishes a tern, condition,
timetable, deadline or schedule shall be enforceable by any
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person pursuant to Section 310(c) of CERCLA, and any
violation of such term, condition, timetable, deadline or
schedule will be subject to civil penalties under Sections
310(c) and 109 of CERCLA.
B. Nothing in this Agreement shall be construed as
authorizing any person to seek judicial review of any action or
work where review is barred by any provision of CERCLA, including
Section 113(h) of CERCLA.
C. The Parties agree that all Parties shall have the right
to enforce the terms of this Agreement.
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STIPULATED PENALTIES
A. In the event that the DOE fails to submit a primary
document (i.e., Scope of Work, RI/FS Work Plan, Risk Assessment,
RI Report, Initial Screening of Alternatives, FS Report,
Proposed Plan, Record of Decision, Remedial Design, Remedial
Action Work Plan) to U.S. EPA pursuant to the appropriate
timetable or deadline in accordance with the requirements of this
Agreement, or fails to comply with a term or condition of this
Agreement which relates to an interim or final remedial action,
U.S. EPA may assess a stipulated penalty against the DOE. A
stipulated penalty may be assessed in an amount not to exceed
$5,000 for the first week (or part thereof), and $10,000 for each
additional week (or part thereof) for which a failure set forth
in this Paragraph occurs.
B. Upon determining that the DOE has failed in a manner set
forth in Paragraph A, U.S. EPA shall so notify the DOE in
writing. If the failure in question is not already subject to
dispute resolution at the time such notice is received, the DOE
shall have fifteen (15) days after receipt of the notice to
invoke dispute resolution on the question of whether the failure
did in fact occur. The DOE shall not be liable for the
stipulated penalty assessed by U.S. EPA if the failure is
determined, through the dispute resolution process, not to have
occurred. No assessment of a stipulated penalty shall be final
until the conclusion of dispute resolution procedures related to
the assessment of the stipulated penalty.
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C. The annual reports required by Section 120(e)(5) of
CERCLA shall include, with respect to each final assessment of a
stipulated penalty against the DOE under this Agreement, each of
the following:
1. The facility responsible for the failure;
2. A statement of the facts and circumstances giving rise
to the failure;
3. A statement of any administrative or other corrective
action taken at the relevant facility, or a statement of
why such measures were determined to be inappropriate;
4. A statement of any additional action taken by or at the
facility to prevent recurrence of the same type of
failure; and • •*"—
5. The total dollar amount of the stipulated penalty
,assessed for the particular failure.
D. Stipulated penalties assessed pursuant to this Part
shall be payable to the Hazardous Substances Response Trust Fund
from funds authorized and appropriated for that specific purpose.
E. In no event shall this Part give rise to a stipulated
penalty in excess of the amount set forth in Section 109 of
CERCLA.
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F. This Part shall not affect the DOE's ability to obtain
an extension of a timetable, deadline or schedule pursuant to
Part of this Agreement.
G. Nothing in this Agreement shall be construed to render
i
any officer or employee of the DOE personally liable for the
payment of any stipulated penalty assessed pursuant to this
Part.
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EXTENSIONS
A. Either a timetable and deadline or a schedule shall be
extended upon receipt of a timely request for extension and when
good cause exists for the requested extension. Any request for
extension by the DOE shall be submitted in writing and shall
specify: -
1. The timetable and deadline or the schedule that is
sought to be extended;
2. The length of the extension sought;
3. The good cause (s) for the extension; and
4. Any related timetable and deadline or schedule
that would be affected if the extension were
granted .
B. Good cause exists for an extension when sought in regard
to:
1. An event of force majeure;
2. A delay caused by another party's failure to meet
any requirement of this agreement;
3. A delay caused by the good faith invocation of
dispute resolution or the initiation of judicial
action;
4. A delay caused, or which is likely to be caused,
by the grant of an extension in regard to another
timetable and deadline or schedule; and
5. Any other event or series of events mutually
agreed to by the Parties as constituting good
cause.
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C. Absent agreement of the Parties with respect to the
existence of good cause, the DOE may seek and obtain a
determination through the dispute resolution process that good
cause exists.
D. Within seven days of receipt of a request for an
"•a
extension of a timetable and deadline or a schedule, U.S. EPA
shall advise the DOE in writing of its respective position on the
request. Any failure by U.S. EPA to respond within the 7-day
period shall be deemed to constitute concurrence in the request
for extension. If U.S. EPA does not concur in the requested
extension, it shall include in its statement of nonconcurrence an
explanation.of the basis for its position.
E. If there is consensus among the Parties that the
requested extension is warranted, the DOE shall extend the
affected timetable and deadline or schedule accordingly. If
there is no consensus among the Parties as to whether all or part
of the requested extension is warranted, the timetable and
deadline or schedule shall not be extended except in accordance
with determination resulting from the dispute resolution process.
F. Within seven days of receipt of a statement of
nonconcurrence with the requested extension, the DOE may invoke
dispute resolution.
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G. A timely and good faith request for an extension shall
toll any assessment of stipulated penalties or application for
judicial enforcement of the affected timetable and deadline or
schedule until a decision is reached on whether the requested
extension will be approved. If dispute resolution is invoked and
the requested extension is denied, stipulated penalties may be
assessed and may accrue from the date of the original timetable,
deadline or schedule. Following the grant of an extension, an
assessment of stipulated penalties or an application for judicial
enforcement may be sought only to compel compliance with the
timetable and deadline or schedule as most recently extended.
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FORCE MAJEURE
A Force Majeure shall mean any event arising from causes
beyond the control of a Party that causes a delay in or prevents
the performance of any obligation under this Agreement,
including, but not limited to, acts of God; fire; war;
insurrection; civil disturbance; explosion; unanticipated
breakage or accident to machinery, equipment or lines of pipe
despite reasonably diligent maintenance; adverse weather
conditions that could not be reasonably anticipated; unusual
delay in transportation; restraint by court order or order of
public authority; inability to obtain, at reasonable cost and
after exercise of reasonable diligence, any necessary
authorizations, approvals, permits or licenses due to action or
«
inaction of any governmental agency or authority other than the
DOE; delays caused by compliance with applicable statutes or
regulations governing contracting, procurement or acquisition
procedures, despite the exercise of reasonable diligence; and
insufficient availability of appropriated funds, if the DOE
shall have made timely request for such funds as part of the
budgetary process as set forth in Part (Funding) of his
Agreement. A Force Majeure shall also include any strike or
other labor dispute, whether or not within the control of the
Parties affected thereby. Force Majeure shall not include
increased costs or expenses of Response Actions, whether or not
anticipated at the time such Response Actions were initiated.
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FUNDING
It is the expectation of the Parties to this Agreement that
all obligations of the DOE arising under this Agreement will be
fully funded. The DOE shall take all necessary steps and make
efforts to obtain timely funding to meet its obligations under
this Agreement.
In accordance with Section 120(e)(5)(B) of CERCLA, 42 U.S.C.
§9620(e)(5)(B), the DOE .shall include in its annual report to
Congress the specific cost estimates and budgetary proposals
associated with the implementation of this Agreement.
Any requirement for the payment or obligation of funds,
including stipulated penalties, by the DOE established by the
terms of this Agreement shall be subject to the availability of
appropriated funds, and no provision'herein shall be interpreted
to require obligation or payment of funds in violation of the
Anti-Deficiency Act, 31 U.S.C. §1341. In cases where payment or
obligation of funds would constitute a violation of the Anti-
Deficiency Act, the dates established requiring the payment or
obligation of such funds shall be appropriately adjusted.
If appropriated funds are not available to fulfill the DOE's
obligations under this Agreement, U.S. EPA and the State reserve
the right to initiate any other action which would be appropriate
absent this Agreement.
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GENERIC TABLE OF CONTENTS FOR
FEDERAL FACILITY AGREEMENTS
UNDER CERCLA SECTION 120
Determinations...
Parties
Definitions
Site Description
Findings of Fact
Scope of Agreement
Remedial Investigation
Feasibility Study
Interim Remedial Actions
Remedial Action
RCRA Closure
Permits
Creation of Danger
Reporting
Notification
Project Managers
Sampling and Data/Document Availability,
Retention of Records
Site Access
Five Year Review
Other Claims
Confidential Information
Transfer of Property
Public Participation
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-2-
Public Comment.
Termination....
Effective Date.
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