United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
xvEPA
DIRECTIVE NUMBER: 9992.2
TITLE: Agreement with the Department of Defense
Model Provisions for CERCLA Federal Facilities
Agreements
APPROVAL DATE: June 17, 1988
EFFECTIVE DATE: J^e i?» 1988
ORIGINATING OFFICE: OWPE
SPINAL
a DRAFT
LEVEL OF DRAFT
B A Signed by AA or OAA
D B Signed by Office Director
DC Review & Comment
REFERENCE (other documents):
SWER OSWER OSWER
DIRECTIVE DIRECTIVE Dl
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^_^_ _ - United States Environmental Protection Agency
JELCPA Washington. DC 20460
**crM OSWER Directive Initiation Reauest
1. Directive Number
9992.2
/ 2. Originator Information
Name of Contact Parson
Bernard (Chip) Landman
Mail Code
WH-527
Office Fed. Fac. Haz.
Waste Compl. Office
Telephone Code
382-2035
3. Title
Agreement with the Department of Defense
Model Provisions for CERCLA Federal Facilities Agreements
4. Summary of Directive (include brief statement of purpose)
Provides model language for inclusion in CERLCA Section 120 Agreements with the
Department of Defense. CERCLA Section 120 Agreements should be utilized for NPL
sites where CERCLA is selected as the lead remedial authority.
5. Keywords
Department of Defense; POD; CERCLA Section 120; Federal Facility Agreement
oa. Does mis Directive auperseae rrevious uirecuveisj.'
b. Does It Supplement Previous Directive(s)?
No
I I Yes What directive (number, title)
X | No I } Yes What directive (number, title)
7. Draft Level
j [ A-SignedbyAA/DAA | j B - Signed by Office Director [ [ C - For Review A Comment [ [ D - (n Development
8. Document to be distributed to States by Headquarters? [Jj YM I U°
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
1 0. Name and Title of Approving Official
Date
Date
EPA Form 1315-17 (Rev. 5-67) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
JJN 17 :;:
MEMORANDUM
SUBJECT: Agreement with the Department of Defense
Model Provisions for CERCLA Federal Facility
Ag r ee-men t s
FROM: J. wins toll 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 Defense (DOD) , including its three service
components (Army, Navy and Air F;>rce). This language has been
mutually agreed to by EPA and DOD. Similar language was agreed
to by the Department of Energy on May 27, 1988.
The attached provisions deal primarily with policy issues
which required agreement between EPA and DOD 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 DOD facilities which involve CERCLA
activities. Language in brackets indicates either those areas
which can be adjusted depending on site-specific considerations
or editorial comments for the benefit of site-specific
negotiators.
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 DOD 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, as noted on page
one of the model language, 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 win hoi n w^,, ,
concluding the negotiations you are currents ^nn ?ulcJclY
DOD and that such negotiations wiu'now Secome more
more ruMn T,
you have any questions about these provisions ?heir If
implementation, please contact Christooher rrnnnio? «
Attachment
cc: Lee Thomas, EPA
Jim Barnes, EPA
William H. Parker, in, DOD
Ernest Baynard, DOE
Roger Marzulla, DOJ
Tom Adams , OECM
Lawrence Jensen, OGC
Jenni'fer Joy Wilson, OEA
Waste Management Division Directors
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION
AND THE
[STATE/COMMONWEALTH OF *]
AND THE
UNITED STATES [DOD COMPONENT]
IN THE MATTER OF:
The U.S. [DOD Component's]
[NAME OF FACILITY]
FEDERAL FACILITY
AGREEMENT UNDER
CERCLA SECTION 120
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 foi.ows:- - - . - -
[* DOD and U.S. EPA agree that it is extremely important
that states participate in Federal facility cleanups by joining
as a Party to these agreements. DOD and U.S. EPA have not
attempted to negotiate on behalf of the states in developing
these model provisions. DOD and U.S. EPA recognize that state
concerns and issues must be addressed at site-specific
negotiations and factored into this agreement as appropriate.]
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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)(l) 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. [§§ 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 [000 Component] enters into those portions of this
Agreement that relate to the RI/FS pursuant to Section 120(e)(1)
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 Defense Environmental Restoration Program
(DERP), 10 U.S.C. §2701 fi£ sea.;
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(iv) the [DOD Component] 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 DERP.
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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 CERCLA/ 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 o:«hazardous
substances, pollutants or contaminants mandated by CERCLA/SARA.
(4) Implement the selected interim and final remedial
action(s) in accordance with CERCLA and meet the requirements of
Section ~i20(e)(2) of CERCLA for an interagency agreement between
U.S. EPA and the [DOO Component].
(5) Assure compliance, through this Agreement, with
RCRA and other federal and state hazardous waste laws and
regulations for matters covered herein.
(6) Coordinate response actions at the Site with the
mission and support activities at [installation].
(7) Expedite the cleanup process [including, at site-
specific negotiations, shortening the time frames specified in
these model provisions] to the extent consistent with protection
of human health and the environment.
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STATUTORY COMPLIANCE/RCRA-CERCLA INTEGRATION
A. The Parties intend to integrate the [DOD Component]'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 et
sea.; 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 3008(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 (i.e., no further corrective
action shall be required). 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. The Partie- recognize that the requirement to obtain
permits for response actions undertaken pursuant to this
Agreement shall be as provided for in CERCLA and the NCP. The
Parties further recognize that on-going hazardous waste
management activities at the [installation] ma/ require the
issuance of permits under Federal and State laws. This Agreement
does not affect the requirements, if any, to obtain such permits.
However, if a permit is issued to the [DOD Component] 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 alter the [DOO
Component]'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 [DOD Component] 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 [DOD Component]
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 "final", 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 [DOD Component] in draft
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subject to review and comment by U.S. EPA. Following receipt of
comments on a particular draft primary document, the [DOD
Component] 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
[DOD Component] in draft subject to review and comment by U.S.
EPA. Although the [DOD Component] 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 [DOD Component] shall complete and transmit draft
reports for the following primary documents to U.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
o
would be generated during a CERCLA cleanup at an NPL site. This
list, and the list below of secondary documents, includes
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discrete portions of the RI/FS or RD/RA and are subject to changA
in accordance with the NCP, [DOD Component] and U.S. EPA
guidance, and site specific requirements. In practice, the
documents will also 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]
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
[DOD Component] 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 [DOD Component] shall complete and transmit draft
reports for the following secondary documents to U.S. EPA for
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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]
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 Pairt __
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.
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F. Identification ard Determination of Potential ARARsi
1. For those primary reports or secondary documents that
consist of or include ARAR 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 [DOD Component] in
accordance with 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 -e 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 Reportst
1. The [DOD Component] 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 [DOD
Component] 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.
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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
specificity so that the [DOD Component] 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 [DOD Component], 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 [DOD
Component] 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 [DOD Component].
3. Representatives of the [DOD Component] 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
[DOD Component] 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
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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 [DOD Component] shall give full consideration to all
written comments on the draft report submitted during the comment
period. Within 30 days of the close of the comment period on a
draft secondary report, the [DOD Component] shdil 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 [DOD Component] shall
tr-insmit to U.S. EPA a draft final primary report, which shall
include the [DOD Component]'s response to all written comments,
received within the comment period. While the resulting draft
final report shall be the responsibility of the [DOD Component],
it shall be the product of consensus to the maximum extent
possible.
6.. The [DOD Component] 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.
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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. When 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.
I. Finalization of Reeorts;
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 [DOD Component]'s position be
sustained. If -the ^DOD Component]'s determination is not
sustained in the dispute resolution process, the [DOD Component]
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 [DOD Component] 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.
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1. U.S. EPA or the [DOD Component] 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
[DOO Component] 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.
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 [000 Component] 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 which was not
contemplated by this Agreement. The [DOO Component]'s obligation
to perform such work must be established by either a modification
of a report or document or by amendment to this Agreement.
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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) cf this Agreement, or (2) any
action which leads to or generates a dispute, the disputing
Party shall submit to the DRC 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 technical, legal or factual 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. 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 ORC 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 [DOD Component]'s designated member is the [DOD
Component 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).
Do 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 th« written statement of dispute snail be forwarded.to the
Senior Executive Committee (SEC) for resolution, within seven (7)
days after the close of the twenty-pne (21) day resolution
period.
E. The SEC will serve as the forum for resolution of
disputes for which agreement has not been reached by the DRC.
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The U.S. EPA representative on the SEC is the Regional
Administrator of U.S. EPA's Region . The [DOD Component]'s
representative on the SEC is the [DOD Component equivalent]. 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 [DOD Component]
may, within fourteen (14) 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 [DOD Component] elects not to elevate the dispute to the
Administrator within the designated fourteen (14) day escalation
period, the [DOD Component] shall be deemed to have agreed with
Regional Administrator's written position with respect to the
dispute.
F. Upon escalation of a dispute to the Administrator of
U.S. EPA pursuant to Subpart E, 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 [DOD Component]'s Secretariat
Representative to discuss the issue(s) under dispute. Upon
resolution, the Administrator shall provide the [DOD Component]
with a written final decision setting forth resolution of the
dispute. The duties of the Administrator set forth in this Part
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shall not be delegated.
G. The pendency of any dispute under this Part shall not
affect the [DOD Component]'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 affect'-d by the dispute
shall continue and be completed in accordance with the applicable
schedule.
H. 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
consult with the [DOD Component] prior to initiating a work
stoppage request. After stoppage of work, if the [DOD Component]
believes that the work stoppage is inappropriate or may have
potential significant adverse impacts, the [DOD Component] may
meet with the Division Director to discuss the work stoppage.
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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 [DOD
Component].
I. within twenty-one (21) days of resolution of a dispute
pursuant to the procedures specified in this Part, the [DOD
Component] 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.
J. Resolution of a dispute pursuant to this Part of the
Agreement constitutes a final resolution of any dispute arising
under this Agreement. All Parties 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
RI/FS shall be enforceable by any person pursuant to Section
310 of CEPCLA, and any violation of such timetables or
deadlines will be subject to civil penalties under Sections
310(c) and 109 of CERCLA;
(3) all terns 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
person pursuant to Section 310(c) of CERCLA, and any
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violation of such term, condition, timetable, deadline or
schedule will be subject to civil penalties under Sections
310(c) and 109 of JERCIA.
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 sh,ll have the right
to enforce the terms of this Agreement.
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STIPULATED PENALTIES
A. In the event that the [DOD Component] 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 terra" or
condition of this Agreement which relates to an interim or final
remedial action, U.S. EPA may assess a stipulated penalty against
the [DOD Component]. A stipulated penalty may be assessed in an
amount not to exceed $5,000 for the first week (or part thereof),
an $TO~, 000 for each additional week (or part thereof) for which
a failure set forth in this Paragraph occurs.
B. Upon determining that the [DOD Component] has failed in
a manner set forth in Paragraph A, U.S. EPA shall so notify the
[DOD Component] in writing. If the failure in question is not
already subject to dispute resolution at the time such notice is
received, the [DOD Component] 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 [DOD
Component] 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
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9992
dispute resolution procedures related to the assessment of the
stipulated penalty.
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 [000 Component] 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.
i
D. Stipulated penalties assessed pursuant to this Part
shall be payable to the Hazardous Substances Response Trust Fund
only in the manner and to the extent expressly provided for in
Acts authorizing funds for, and appropriations to, the DOD.
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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9992
F. This Part shall not affect the [DOD Component]'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
any officer or employee of the [OOD Component] personally liable
for the payment of any stipulated penalty assessed pursuant to
this Part.
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DEADLINES
[This model provision assumes no investigatory work is in
progress at the site and no schedules have been previously
established for study work. The degree of specificity and
completeness of the deadlines contained herein shall be based
upon information possessed at the time of development of the
site-specific agreement.]
A. The following deadlines have been established, in
conjunction with the State, for the submittal of draft primary
documents pursuant to this Agreement:
1. [Scope of Work]
B. Within twenty-one (21) days of the effective date of
this Agreement, the [DOD Component] shall propose deadlines for
completion of the following draft primary documents:
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]
7. [Proposed Plan]
8. [Record of Decision]
within fifteen (15) days of receipt, EPA, in conjunction
with the State, shall review and provide comments to the [DOD
Component] regarding the proposed deadlines. Within fifteen (15)
days following receipt of the comments the [DOD Component] shall,
as appropriate, make revisions and reissue the proposal. The
Parties shall meet as necessary to discuss and finalize the
proposed deadlines. If the Parties agree on proposed deadlines,
the finalized deadlines shall be incorporated into the
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appropriate Work Plans. If the Parties fail to agree within
~uirty (30) days on the proposed deadlines, the matter shall
..^mediately be submitted for dispute resolution pursuant to Part
of this Agreement.
The final deadlines established pursuant to this Paragraph
shall be publishes by U.S. EPA, in conjunction with the State.
C. Within twenty-one (21) days of issuance of the Record
of Decision, the [000 Component] shall propose deadlines for
completion of the following draft primary documents:
9. [Remedial Design]
10. [Remedial Action Work Plan] '
These deadlines shall be proposed, finalized and published
utilizing the same procedures set forth in Paragraph B. above.
0. The deadlines set forth in this Part, or to be
established as set forth in this Part, may be extended pursuant
to Part of this Agreement. The Parties recognize that one
possible basis for extension of the deadlines for completion of
the Remedial Investigation and Feasibility Study Reports is the
identification of significant new Site conditions during the
performance of the remedial investigation.
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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 [DOD Component] 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 [DOD Component] 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
extension of a timetable and deadline or a schedule, U.S. EPA
shall advise the [DOD Component] 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 [DOD Component] 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.
Fo Within seven days of receipt of a statement of
nonconcurrence with the requested extension, the [DOD Component]
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 grar 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
[DOD Component]; 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 [DOD Component] 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 [DOD Component] arising under this
Agreement will be fully funded. The [OOD Component] agrees to
seek sufficient funding through the DOD budgetary process to
fulfill its obligations under this Agreement.
In accordance with Section 120(e)(5)(B) of CERCLA, 42 U.S.C.
§9620(e)(5)(B), the [DOD Component] 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 [DOD Component]
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 [DOD
Component]'« obligations under this Agreement, U.S. EPA reserves
the right to initiate an action against any other person, or to
take any -esponse action, which would be appropriate absent this
Agreement.
Funds authorized and appropriated annually by Congress under
the "Environmental Restoration, Defense" appropriation in the
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Department of Defense Appropriation Act and allocated by the
DASD(E) to the [DOD Component] will be the source of funds for
activities required by this Agreement consistent with Section 211
of SARA, 10 U.S.C. Chapter 160. However, should the
Environmental Restoration, Defense appropriation be inadequate in
any year to meet the total [DOD Component] CERCLA implementation
requirements, the DOD shall employ and the [DOD Component] shall
follow a standardized DOD prioritization process which allocates
that year's appropriations in a manner which maximizes the
protection of human health and the environment. A standardized
DOD prioritization model shall be developed and utilized with the
assistance of U.S. EPA and the states.
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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
Creation of Danger/Emergency Actions
Reporting
Notification .
Proj ect Managers
Sampling and Data/Document Availability..
Retention of Records
Site Access
Five Year Review
Other Claims
Confidential Information
Transfer of Property
Public Participation/Community Relations,
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Public Comment.
Amendment
Termination....
Effective Date.
9952
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