UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
VW 30 1990
OSWER Directive Number 9833.0-2(b)
MEMORANDUM
SUBJECT:
Model Unilateral Administrative Order for Remedial
Design and Remedial Action Under Section 106 of CERCLA
FROM:
Bruce M. Diamond, Director
^Office of Waste Programs Enforcement
Glenn L. Unterberger, Associate Enforcement Counsel
for Hazardous Waste Enforcement
TO: Director, Waste Management Division
Regions I, IV, V, & VII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III, VI, VIII & IX
Director, Hazardous Waste Division
Region X
Regional Counsel, Regions I - X
Attached is the interim final model unilateral order for
remedial design and remedial action.
One purpose of this model order is to improve the quality of
remedial actions performed by private parties. The technical
deliverables in this document correspond to the requirements of
the "Interim Final Guidance on EPA Oversight of Remedial Designs
and Remedial Actions Performed by Potentially Responsible .
Parties," OSWER Directive 9355.5-01, February 14, 1990. The
model order should expedite the issuance of orders, in part by
saving time and resources in preparing unilateral orders. Please
use the model in conjunction with EPA's "Guidance on CERCLA
106 (a) Unilateral Administrative Orders for Remedial Designs and
Remedial Actions," OSWER Directive 9833.0-l(a), March 7, 1990.
The Regions have the discretion to tailor the model order to
the facts and technical needs of the site. However, it is not
appropriate to adopt an approach to preparing orders that is so
flexible that issued orders do not rely substantially on the
model. Orders that are presently in the final stages of drafting
should not be delayed to correspond to this model order.
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We are issuing this model order as an interim final document
because we recognize that the experience gained from using the
order may require modifications to the model. We developed this
order concurrently with the model consent decree for RD/RA and we
expect to issue the consent decree in the near future. If you
have suggestions for the model order please submit them to Paul
Connor, OWPE, FTS 475-9811, (OS-510) . In the near future we will
distribute the model order on a disk to assist you in using the
document. For more information about the Order please contact us
or have your staff contact Paul Connor of OWPE or Patricia L.
Winfrey of OECM, FTS 382-2860, (LE-134S).
We hope the model order will assist you in your efforts to
secure cleanups by private parties. Thank you for your
assistance in developing the order.
Attachment
cc: CERCLA~Enforcement Branch Chiefs, Regions I - X
Regional Counsel Waste Branch Chiefs, Regions I - X
Henry L. Longest, II, OERR
David T. Buente, DOJ
Lisa K. Friedman, OGC
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MODEL UNILATERAL ADMINISTRATIVE ORDER
FOR REMEDIAL DESIGN AND REMEDIAL ACTION
March 30, 1990
OSWER Directive Number 9833.0-2(b)
This model order and any internal procedures adopted for its
implementation and use are intended solely as guidance for
employees of the U.S. Environmental Protection Agency. This
order does not constitute a rulemai'.ing by the Agency and may not
be relied upon to create a right or benefit, substantive or
procedural, enforceable at law or in equity, by any person. The
Agency may take action at variance with this model order or its
internal implementing procedures.
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TABLE OF CONTENTS
I. INTRODUCTION AND JURISDICTION 1
II. FINDINGS OF FACT 2
III. CONCLUSIONS OF LAW AND DETERMINATIONS ........ 5
IV. NOTICE TO THE STATE 7
V. ORDER 7
VI. DEFINITIONS 7
VII. NOTICE OF INTENT TO COMPLY 10
VIII. PARTIES BOUND 11
IX. WORK TO BE PERFORMED 12
A. Remedial Design ...... 14
B. Remedial Action ................. 16
X. FAILURE TO ATTAIN PERFORMANCE STANDARDS . 22
XI. EPA PERIODIC REVIEW 22
XII. ADDITIONAL RESPONSE ACTIONS 22
XIII. ENDANGERMENT AND EMERGENCY RESPONSE ' 23
XIV. EPA REVIEW OF SUBMISSIONS 24
XV. PROGRESS REPORTS 25
XVI. QUALITY ASSURANCE, SAMPLING AND DATA ANALYSIS .... 26
XVII. COMPLIANCE WITH APPLICABLE LAWS 27
XVIII. REMEDIAL PROJECT MANAGER 28
XIX. ACCESS TO SITE NOT OWNED BY RESPONDENT(S) 29
XX. SITE ACCESS AND DATA/DOCUMENT AVAILABILITY 31
XXI. RECORD PRESERVATION 32
XXII. DELAY IN PERFORMANCE 34
XXIII. ASSURANCE OF ABILITY TO COMPLETE WORK 34
XXIV. REIMBURSEMENT OF RESPONSE COSTS 35
ii
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XXV. UNITED STATES NOT LIABLE 36
XXVI. ENFORCEMENT AND RESERVATIONS . 37
(XVII. ADMINISTRATIVE RECORD 39
CVIII. EFFECTIVE DATE AND COMPUTATION OF TIME 39
XXIX. OPPORTUNITY TO CONFER 39
111
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Region [I]
In The Matter Of: )
)
[Site Nans, operable Unit l_ ] )
)
[Respondent*•(•) name(a)] )
)
) U.S. EPA
) Docket No.
)
Proceeding Under Section 106(a) of the )
Comprehensive Environmental Response, }
Compensation, and Liability Act of 1980, )
as amended (42 U.S.C. 9606(a)) )
ADMINISTRATIVE ORDER
FOR REMEDIAL DESIGN AND REMEDIAL ACTION
I. INTRODUCTION AND JURISDICTION
1. This Order directs Respondent(s) to perform a remedial
design for the remedy described in the Record of Decision [cite
other relevant Records of Decision/ amendments to Records of
Decision/ and Explanations of Significant Differences/] for the
site, [operable unit No. ,] dated 199_, and
to implement the design by performing a remedial action. This
Order is issued to Respondent(s) by the United States
Environmental Protection Agency ("EPA") under the authority
vested in the President of the United States by section 106(a) of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980,
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Directive Number 9833 '. 0-2 (b)
March 30, 1990
Regional Administrators on September 13, 1987 by EPA Delegation
No. 14-14-B. [Not*: Under EPA Delegation Number 14-14-B, some
Regional Administrators re-delegated this authority. An
additional sentence explaining the authority of other regional
officials issuing this order may be necessary.]
II. FINDINGS OF FACT
2. [Give the name and geographic location of the Site
("facility"). Briefly describe the past uses and current
conditions at the Site. Refer to the RI and the ROD for more
detail.] _ •
3. [Insert one or more of A through D, as appropriate for each
named respondent. It may be necessary to include additional
findings for individuals, successors, parent/subsidiaries, etc.
If the recipient of this order is not a liable party under
section 107, the respondent should be identified here but the
findings in this paragraph should be modified.]
A. [Present owner/operator(s)] Respondent(s) [insert
name(3)] is now, and has been since on or about , 19 _
, the [owner] [operator] [owner and operator] of the
facility.
B. [Former owner/operator(s)] Respondent(s) [insert
name(s)] was, from on or about , 19 , until
, 19 , the [owner] [operator] [owner and operator] of
the facility. During that time hazardous substances,
including some or all of those described in this section,
were disposed of at the Site.
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Directive Number 9833.'0-2 (b)
March 30, 1990
C. [Person(s) who arranged for disposal or treatment
(e.g., Generator)] Respondent(s) [insert name(s)]
[arranged, by contract or agreement, or otherwise, for the
disposal or treatment of] or [arranged with a transporter
for transport for disposal or treatment of] hazardous
substances owned or possessed by Respondent(s). Hazardous
substances of the same kind as those owned or possessed by
Respondent(s) [insert name(s)] were present at the Site.
D. [Transporter] - Respondent(s) [insert name(s)] accepts
or accepted hazardous substances for transport to, and
disposal or treatment at the Site, and selected the Site for
disposal or treatment.
4. The respondents identified in paragraph 3 are collectively
referred to as "Respondents."
5. On , 19 , ( Fed. Reg. ) , pursuant to
section 105 of CERCLA, 42 U.S.C. 9605, EPA placed [proposed to
place] the Site on the National Priorities
List, set forth at 40 C.F.R. Part 300, Appendix B.
[Note: If the Bite is divided into operable units, include
the following paragraph.]
6. To study and undertake response activities in phases, EPA
divided the Site into operable units. The operable units for the
Site are ,. This Order addresses operable unit
7. From about , 19 , to about , 19 , EPA [or the
Respondent(s) or a number of PRPs under BPA's oversight]
undertook a Remedial Investigation and Feasibility Study
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Directive Number 9833.0-2(b)
March 30, 1990
("RI/FS") for the Site [operable unit ], pursuant to CERCLA
and the National Contingency Plan, 40 C.F.R. Part 300.
8. Pursuant to section 117 of CERCLA, 42 U.S.C. 9617, EPA
published notice of the completion of the FS and of the proposed
plan for remedial action on , 19 , and provided
opportunity for public comment on the proposed remedial action.
9. The decision by EPA on the remedial action to be implemented
at the Site [operable unit j is embodied in a
final Record^ of Decision ("ROD"), executed on , 19 , [cite
to any ROD amendments and ESDs] [on which the State had a
reasonable opportunity to review and comment/on which the State
has given its concurrence.] The Record of Decision is attached
to this Order as Attachment 1 and is incorporated by reference.1
The Record of Decision is supported by an administrative record
that contains the documents and information upon which EPA based
the selection of the response action.
10. [Identify the hazardous substances at the Site (see 40
C.F.R. 302.4). Consider both the primary chemicals in the risk
assessment and the chemicals sent by Respondent(s). State
whether the hazardous substances were/are co-mingled.]
11. [Summarize the data or information (e.g., HI sampling
results) supporting the conclusion that there is a release or
threatened release of hazardous substances].
1 While it is appropriate to include the ROD as an
attachment, for complex remedies the ROD should not be used as a
substitute for a Statement of Work.
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Directive Number 9833.0-2(b)
March 30, 1990
12. [Describe the release migration/ including present and
potential future pathways, and possible or known routes of
exposure of the hazardous substances.]
13. [Identify the populations at risk and the present and future
land uses. Describe the risk to human health, welfare or the
environment.]
14. [Describe any past response actions at the Site or other
orders or consent- agreements. ] •
15. [Describe in detail the remedy chosen and refer to the ROD
for a more complete statement.]
16. [Describe how each component of the remedy is designed to
address the endangerment posed by the release or threat of
release and how the remedy is designed to address the routes of
exposure.]
III. CONCLUSIONS OF LAW AND DETERMINATIONS
17. The [name of site] Site is a "facility1* as defined in
section 101 (-9) of CERCLA, 42 U.S.C. 9601(9).
18. Respondent(s). is [are] a "personfs]" as defined in section
101(21) of CERCLA, 42 U.S.C. 9601(21).
19. Respondent(s) is a "liable party" as defined in section
107(a) of CERCLA, 42 U.S.C. 9607(a), and is subject to this
Order under section 106(a) of CERCLA, 42 U.S.C. 9606(a).
[Note: If a party is subject to the Order but not liable under
section 107(a), modify this sentence.]
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Directive Number 9833.0-2(b)
March 30, 1990
20. The substances listed in paragraph 10 are found at the Site
and are "hazardous substances" as defined in section 101(14) of
CERCLA, 42 U.S.C. 9601(14).
21. These hazardous substances [have been] [are being] [threaten
to be] released from the Site into the [soil, groundwater,
surface water/ air/ etc.].
[Note: Dae either paragraph 22 or 23, or both/ as
appropriate]
22. The [past/ present/] disposal and migration of hazardous
substances from the Site are a "release" as defined in section
101(22) of CERCLA, 42 U.S.C. 9601(22).
23. The"potential for future migration of hazardous substances
from the Site poses a threat of a "release" as defined in section
101(22) of CERCLA, 42 U.S.C. 9601(22).
24. The [release] [threat of release] of one or more hazardous
substances from the facility may present an imminent and
substantial endangerxnent to the public health or welfare or the
environment.
25. The contamination and endangerment at this Site constitute
an indivisible injury. The actions required by this Order are
necessary to protect the public health, welfare, and the
environment.
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Directive Number 9833.'0-2 (b)
March 30, 1990
IV. NOTICE TO THE STATE
26. On , prior to issuing this Order, EPA notified the
State of Department of , that EPA would be
issuing this Order.
V. ORDER
27. Based on the foregoing, Respondent(s) ±» (are) hereby
ordered, [jointly and severally], to comply with the following
provisions, including but not limited to all attachments to this
Order, all documents incorporated by reference Into this Order,
and all schedules and deadlines in this Order, attached to this
Order, or incorporated by reference into this Order:
VI. DEFINITIONS
28. Unless otherwise expressly provided herein, terms used in
this Order which are defined in CERCLA or in regulations
promulgated under CERCLA shall have the meaning assigned to them
in the statute or its implementing regulations. Whenever terms
listed below are used in this Order or in the documents attached
to this Order or incorporated by reference into this Order, the
following definitions shall apply:
a. "CERCLA" shall mean the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42
U.S.C. 9601 et sea.
b. "Day" shall mean a calendar day unless expressly stated
to be a working day. "Working day" shall mean a day other than a
Saturday, Sunday, or Federal holiday. In computing any period of
time under this Order, where the last day would fall on a
Saturday, Sunday, or Federal holiday, the period shall run until
the end of the next working day.
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Directive Number 9833.0-2(b)
March 30, 1990
c. "EPA" shall mean the United States Environmental
Protection Agency.
[d. «hall mean th« (State Pollution
Control Agency or Environmental Protection Agency).]
e. "National Contingency Plan" or "NCP" shall mean the
National Contingency Plan promulgated pursuant to Section 105 of
CERCLA, 42 U.S.C. 9605, codified at 40 C.F.R. Part 300,
including any amendments thereto.
f. "Operation and Maintenance" or "O&M" shall mean all
activities required under the Operation and Maintenance Plan
developed by Respondent(s) pursuant to this Order and Section
of the Statement of Work,2 and approved by EPA.
g. "Paragraph" shall mean a portion of this Order
identified by an arabic numeral.
h. "Performance Standards" shall mean those cleanup
standards, standards of control, and other substantive
requirements, criteria or limitations, identified in the Record
of Decision and Statement of Work, that the Remedial Action and
Work required by this Order must attain and maintain.
A definition of O&M should be used only where O6M will
continue for the indefinite future. The SOW should make it clear
that the Operation and Maintenance Plan covers long-term
operation, maintenance, and monitoring activities after all
elements of the operable unit have been constructed or otherwise
put in place.
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Directive Number 9833.0-2(b)
March 30, 1990
i. "Record of Decision" or "ROD" shall mean the EPA Record
of Decision relating to the Site, Operable Unit , signed on
, 19 by the Regional Administrator, EPA Region ,
and all attachments thereto.
j. "Remedial Action" or "RA" shall mean those activities,
except for Operation and Maintenance, to be undertaken by
Respondent(s) to implement the final plans and specifications
submitted by Respondent(s) pursuant to the Remedial Design Work
Plan approved by £PA, including any additional activities
required under Sections X, XI, XII, XIII, and XIV of this Order.
k. "Remedial Design" or "RD" shall mean those activities to
be undertaken by Respondent (s) to develop the final plans and
specifications for the Remedial Action pursuant to the Remedial
Design Work Plan.
1. "Response Costs" shall mean all costs, including direct
costs, indirect costs, and accrued interest incurred by the
United States [and the State] to perform or support response
actions at the Site. Response costs include but are not limited
to the costs of overseeing the Work, such as the costs of
reviewing or developing plans, reports and other items pursuant •
to this Order and costs associated with verifying the Work.
m. "Statement of Work" or "SOW" shall mean the statement of
work for implementation of the Remedial Design, Remedial Action,
and Operation and Maintenance at the Site, as set forth in
Attachment 2 to this Order. The Statement of Work is
incorporated into this Order and is an enforceable part of this
Order.
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Directive Number 9833.0-2(b)
March 30, 1990
n. "Section" shall mean a portion of this Order identified
by a roman numeral and includes one or more paragraphs.
o. "Site" shall mean the Superfund site,
encompassing approximately acres, located at [address or
description of location] in [name of city], County,
[name of state], as described in the Record of Decision.
p. "State" [or "Commonwealth"] shall mean the State
[Commonwealth] of : .
g. "United States" shall mean the United States of America.
r. "Work" shall mean all activities Respondent(s) are
required to perform under this Order,.including Remedial Design,
Remedial Action, Operation and Maintenance, and any activities
required to be undertaken pursuant ~,o Sections VII through XXIV,
and XXVII of this Order.3
VII. NOTICE OF INTENT TO COMPLY
29. Respondent(s) shall provide, not later than five (5) days
after the effective date of this Order, written notice to EPA's
Remedial Project Manager (RPM) stating whether it (they) will
comply with the terms of this Order. If Respondent(s) does (do)
not unequivocally commit to perform the RD and RA as provided by
If the Order is for implementation of an operable unit
ROD, rather than a "final" remedy, the definition should
read: "Work" shall mean all activities Respondent(s) are
required to perform under this Order to implement the ROD
for the frame of OU1 , including Remedial Design,
Remedial Action and Operation and Maintenance for the
[name of OU1 and any activities required to be
undertaken pursuant to this Order.
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Directive Number 9833.0-2(b)
March 30, 1990
this Order, it (they) shall be deemed to have violated this Order
and to have failed or refused to comply with this Order.
Respondent's written notice shall describe, using facts that
exist on or prior to the effective date of this Order, any
"sufficient cause" defenses asserted by Respondent(6) under
sections 106(b) and 107(c) (3) of CERCLA. The absence of a
response, by EPA to the notice required by this paragraph shall
not be deemed to be acceptance of Respondent's assertions.
VIII. PARTIES BOUND
30. This Order shall apply to and be binding upon each
Respondent identified in paragraph 3, its (their) directors,
officers, employees, agents, successors, and assigns.
Respondent(s) are jointly and severally responsible for carrying
out all activities required by this Order. No change in the
ownership, corporate status, or other control of any
Respondent(s) shall alter any of the Respondent's
responsibilities under this Order.
31. Respondent (s) shall provide a copy of this Order to any
prospective owners or successors before a controlling interest in
Respondent's assets, property rights, or stock are transferred to
the prospective owner or successor. Respondent(s) shall provide
a copy of this Order to each contractor, sub-contractor,
laboratory, or consultant retained to perform any Work under this
Order, within five days after the effective date of this Order or
on the date such services are retained, whichever date occurs
later. Respondent (s) shall also provide a copy of this Order to
each person representing any Respondent(s) with respect to the
Site or the Work and shall condition all contracts and
subcontracts entered into hereunder upon performance of the Work
in conformity with the terms of this Order. With regard to the
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Directive Number 9833.0-2(b)
March 30, 1990
activities undertaken pursuant to this Order, each contractor and
subcontractor shall be deemed to be related by contract to the
Respondent(s) within the meaning of section 107(b)(3) of CERCLA,
42 U.S.C. 9607(b)(3). Notwithstanding the terms of any
contract, Respondent(s) is (are) responsible for compliance with
this Order and for ensuring that its (their) contractors,
subcontractors and agents comply with this Order, and perform any
Work in accordance with this Order.
32. Within five (*) days after the effective drte of this Order
each Respondent that owns real property comprising all or part of
the Site shall record a copy or copies of this Order in the
appropriate governmental office where land ownership and transfer
records are filed or recorded, [and shall ensure that the
recording of this Order is indexed to the titles of each and
every property at the Site so as to provide notice to third
parties of the issuance and terms of this Order with respect to
those properties]. Respondent(s) shall, within 15 days after the
effective date of this Order, send notice of such recording and
indexing to EPA.
33. Not later than sixty (60) days prior to any transfer of any
real property interest in any property included within the Site,
Respondent(s) shall submit a true and correct copy of the
transfer document(s) to EPA, and shall identify the transferee by
name, principal business address and effective date of the
transfer.
IX. WORK TO BE PERFORMED
34. Respondent(s) shall cooperate with EPA in providing
information regarding the Work to the public. As requested by
EPA, Respondent(s) shall participate in the preparation of such
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Directive Number 9833.0-2(b)
March 30, 1990
information for distribution to the public and in public meetings
which may be held or sponsored by EPA to explain activities at or
relating to the Site.
35. All aspects of the Work to be performed by Respondent (s)
pursuant to this Order shall be under the direction and
supervision of a qualified project manager the selection of which
shall be subject to approval by EPA. Within days after the
effective date of this Order, Respondent (s) shall notify EPA in
writing of the naira and qualifications of the project manager,
including pjrimary support entities and staff, proposed to be used
in carrying out Work under this Order. If at any time
P.espondent(s) proposes to use a different project, manager,
Respondent(s) shall notify EPA and shall obtain approval from EPA
before the new project manager performs any Work under this
Order.
36. EPA will review Respondent's selection of a project manager
according to the terms of this paragraph and Section XIV of this
Order. If EPA disapproves of the selection of the project
manager, Respondent(s) shall submit to EPA within 30 days after
receipt of ^PA's disapproval of the project manager previously
selected, a list of project managers, including primary support
entities and staff, that would be acceptable to Respondent(s).
EPA will thereafter provide written notice to Respondent(s) of
the names of the project managers that are acceptable to EPA.
Respondent(s) may then select any approved project manager from
t
that list and shall notify EPA of the name of the project manager
selected within twenty-one (21) days of EPA's designation of
approved project managers.
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Directive Number 9833.0-2(b)
March 30, 1990
[Mot*: The deliverables required by subsections A and B
below must appear in either the Order or in the Statement of
Work, unless the remedial design is complete. If the
remedial action is less complex than that contemplated by
this order, subsections A and B may be modified
accordingly.]
A. Remedial Design
37. Within thirty (30) days after Respondent(s) selects an
approved project manager, Respondent(s) shall submit a work plan
for the Remedial Design at the Site ("Remedial Design Work Plan"
or "RD Work Plan") to EPA for review and approval. The RD Work
Plan shall-include a step-by-step plan for completing the
remedial design for the remedy described in the ROD and for
attaining and maintaining all requirements, including Performance
Standards, identified in the ROD. The RD Work Plan must describe
in detail the tasks and deliverables Respondent(s) will complete
during the remedial design phase, and a schedule for completing
the tasks and deliverables in the RD Work Plan. The major tasks
and deliverables described in the RD Work Plan shall include, but
not be limited to, the following: (1) a preliminary design; (2)
an intermediate design; (3) a pre-final design; (4) a final
design; (5) a design sampling and analysis plan; (6) a
Contingency Plan; (7) a Construction Quality Assurance Plan
(CQAP); (8) treatability studies; [insert where needed, (9) a
plan for gathering additional data or information, or performing
additional feasibility studies; and (10) any other appropriate
components]. Respondent(s) shall also, within thirty (30) days
after Respondent(s) selects an approved project manager, prepare
and submit to EPA for review, a Site Health and Safety Plan for
field design activities. The Site Health and Safety Plan shall
conform to the applicable Occupational Safety and Health
Administration and EPA requirements, including but not limited to
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Directive Number 9833.0-2(b)
March 30, 1990
54 Fed. Reg. 9294. [Mote: Modify this paragraph if pre-dasign
studies are required at the site.]
38. The RD Work Plan shall be consistent with, and shall provide
for implementing the Statement of Work, and shall comport with
EPA's "Superfund Remedial Design and Remedial Action Guidance,
OSWER Directive 9355.0-4A" [cite more recent guidance when it
becomes available] . Upon approval by EPA, the RD Work Plan is
incorporated into this Order as a requirement of this Order and
shall be an enforceable part of this Order.
39. Upon approval of the RD Work Plan by EPA, Respondent(s)
shall implement the RD Work Plan according to the schedule in the
approved RD Work Plan. Any violation of the approved RD Workplan
shall be a violation of this Order. Unless otherwise directed by
EPA, Respondent(s) shall not perform further Work at the Site
prior to EPA's written approval of the RD Work Plan.
[Mote: Make sure the dates inserted in the following
paragraphs are consistent with the schedule in the SOW.]
40. Within days after EPA approves the RD Work Plan,
Respondent(s) shall submit a Preliminary Design to EPA for review.
and approval. The Preliminary Design submittal shall include, at
a minimum, the following: (1) design criteria; (2) results of
treatability studies; (3) results of additional field sampling;
(4) project delivery strategy; (5) preliminary plans, drawings
and sketches; (6) required specifications in outline form; and
(7) a preliminary construction schedule.
[Mote: If Respondent (s) performs a value engineering study
that results in a design change affecting the environmental
design criteria, then require Respondent(s) to submit the
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Directive Number 9833.0-2(b)
March 30, 1990
Intermediate Design for review fin^ approval, otherwise, use
the following language:]
41. Within days after EPA approves the Preliminary Design,
Respondent(s) shall submit an Intermediate Design to EPA. The
Intermediate Design submittal shall continue and expand on the
contents of the Preliminary Design.
[Note: Where appropriate/ insert a paragraph requiring a
pre-final design.]
42. Withirr days after EPA approves the Intermediate Design,
Respondent(s) shall submit a Final Design to EPA for review and
approval. The Final Design submittal shall include, at a
minimum, the following: (1) final plans and specifications; (2)
an Operation and Maintenance Plan; (3) the Construction Quality
Assurance Plan (CQAP); (4) the Field Sampling Plan (directed at
measuring progress towards meeting performance standards); and
(5) a Contingency Plan. The CQAP shall describe the approach to
quality assurance during construction activities at the Site and
shall specify a quality assurance official (QA Official),
independent of the construction contractor, to conduct a quality
assurance program during the construction phase of the project.
43. Upon EPA approval, the Final Design is incorporated into
this Order as a requirement of this Order and shall be an
enforceable part of this Order.
B. Remedial Action
44. Not later than days after EPA approves all deliverables
required as part of the Final Design, Respondent(s) shall submit
a Remedial Action Work Plan (RA Work Plan) to EPA for review and
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Directive Number 9833.'O-2(b)
March 30, 1990
approval. The RA Work Plan shall be developed in accordance with
the ROD, [any ESDs and any amendments to the ROD] , and the
attached Statement of Work, and shall be consistent with the
Final Design as approved by EPA. The RA Work Plan shall include
methodologies, plans and schedules for completion of at least the
following: (1) selection of the remedial action contractor; (2)
implementation of the CQAP; (3) development and submission of the
ground water monitoring plan; (4) identification of and
satisfactory compliance with applicable permitting requirements;
(5) implementation of the Operation and Maintenance Plan; (6)
implementation of the Contingency Plan; and (7) development and
submission of the Performance Standards assessment plan. The RA
Work Plan shall also include a schedule for implementing all
remedial action tasks identified in the Statement of Work and
shall identify the initial formulation of Respondent's Remedial
Action Project Team (including the Supervising Contractor).
Respondent(s) shall also submit to EPA for review, not later than
days after EPA approves all deliverables required as part of
the Final Design, a Health and Safety Plan for field activities
required by the RA Work Plan. The Health and Safety Plan for
field activities shall conform to applicable Occupational Safety
and Health'Administration and EPA requirements, including but not
limited to the regulations at 54 Fed. Reg. 9294.
45. Upon approval by EPA, the RA Work Plan is incorporated into
this Order as a requirement of this Order and shall be an •
enforceable part of this Order.
46. Upon approval of the RA Work Plan by EPA, Respondent (s)
shall implement the RA Work Plan according to the schedules in
the RA Work Plan. Unless otherwise directed by EPA,
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Directive Number 9833.0-2(b)
March 30, 1990
Respondent(s) shall not commence remedial action at the Site
prior to approval of the RA Work Plan.
47. If Respondent(s) seeks to retain a construction contractor
to assist in the performance of the Remedial Action, then
Respondent(s) shall submit a copy of the contractor solicitation
documents to EPA not later than five (5) days after publishing
the solicitation documents.
48. Within days after EPA approves the RA Work Plan
Respondent(s) shall notify EPA in writing of the name, title, and
qualifications of any construction contractor proposed to be used
in carrying out work under this Order. EPA shall thereafter
provide written notice of the name(s) of the contractor(s) it
approves, if any. Respondent(s) may select any approved
contractor from that list and shall notify EPA of the name of the
contractor selected within twenty one (21) days of EPA's
designation of approved contractors. If at any time
Respondent (s) proposes to change the construction contractor,
Respondent(s) shall notify EPA and shall obtain approval from EPA
as provided in this paragraph, before the new construction
contractor performs any work under this Order. If EPA
disapproves of the selection of any contractor as the
construction contractor, Respondent(s) shall submit a list of
contractors that would be acceptable to them to EPA within thirty
(30) days after receipt of EPA's disapproval of the contractor
previously selected.
49. The Work performed by Respondent(s) pursuant to this Order
shall, at a minimum, achieve the Performance Standards specified
in the Record of Decision and in paragraph of the Statement of
Work. [This section of the Order should also delineate
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Directive Number 9833.'0-2 (b)
March 30, 1990
acceptable methods, statistical and otherwise, to determine
compliance with the Performance Standards.]
50. Notwithstanding any action by EPA, Respondent(s) remain
fully responsible for achievement of the Performance Standards in
the Record of Decision and Statement of Work. Nothing in this
Order, or in EPA's approval of the Statement of Work, or in the
Remedial Design or Remedial Action Work Plans, or approval of any
other submission, shall be deemed to constitute a warranty or
representation of any kind by EPA that full performance of the
Remedial Design or Remedial Action will achieve the Performance
Standards set forth in the ROD and in Paragraph of the
Statement of Work. Respondent's compliance with such approved
documents does not foreclose EPA from seeking additional work to
achieve the applicable performance standards.
51. 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 RPM of such shipment of hazardous substances.
However, the notification of shipments shall not apply to any
off-Site shipments when the total volume of all shipments from
the Site to the State will not exceed ten (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
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Directive Number 9833.0-2(b)
March 30, 1990
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 Remedial Action construction. Respondent(s) shall
provide all relevant information, including information under the
categories noted in paragraph 51.a above, on the off-Site
shipments as soon ar practicable after the award of the contract
and before the hazardous substances are actually shipped.
52. Within thirty (30) days after Respondent(s) conclude that
the Remedial Action has been fully performed, Respondent(s) shall
so notify EPA and shall schedule and conduct a pre-certification
inspection to be attended by Respondent(s) and EPA. The pre-
certif ication inspection shall be followed by a written report
submitted within thirty (30) days of the inspection by a
registered professional engineer and Respondent's(') Project
Coordinator certifying that the Remedial Action has been
completed in full satisfaction of the requirements of this Order.
If, after completion of the pre-certification inspection and
receipt and review of the written report,- EPA determines that the
Remedial Action or any portion thereof has not been completed in
accordance with this Order, EPA shall notify Respondent(s) in
writing of the activities that must be undertaken to complete the
Remedial Action and shall set forth in the notice a schedule for
performance of such activities. Respondent(s) shall perform all
activities described in the notice in accordance with the
specifications and schedules established therein. If EPA
concludes, following the initial or any subsequent certification
of completion by Respondent(s) that the Remedial Action has been
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Directive Number 9833.0-2(b)
March 30, 1990
fully performed in accordance with this Order, EPA nay notify
Respondent(s) that the Remedial Action has been fully performed.
EPA's notification shall be based on present knowledge and
Respondent's certification to EPA, and shall not limit EPA's
right to perform periodic reviews pursuant to section 121(c) of
CERCLA, 42 U.S.C. 9621(c), or to take or require any action
that in the judgment of EPA is appropriate at the Site, in
accordance with 42 U.S.C. 9604, 9606, or 96O7.
53. Within thirty (30) days after Respondent(s) concludes that
all phases of the Work have been fully performed, that the
Performance Standards have been attained, and that all Operation
and Maintenance activities have been completed, Respondent (s)
shall submit to EPA a written report by a registered professional
engineer certifying that the Work has been completed in full
satisfaction of the requirements of this Order. EPA shall
require such additional activities as may be necessary to
complete the Work or EPA may, based upon present knowledge and
Respondent's certification to EPA, issue written notification to
Respondent (s) that the Work has been completed, as appropriate,
in accordance with the procedures set forth in Paragraph 52 for
Respondent's certification of completion of the Remedial Action.
EPA's notification shall not limit EPA's right to perform
periodic reviews pursuant to section 121(c) of CERCLA, 42 U.S.C.
9621 (c), or to take or require any action that in the judgment
of EPA is appropriate at the Site, in accordance with 42 U.S.C.
9604, 9606, or 9607.
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Directive Number 9833.0-2(b)
March 30, 1990
X. FAILURE TO ATTAIN PERFORMANCE STANDARDS
54. In the event that EPA determines that additional response
activities are necessary to meet applicable Performance
Standards, EPA may notify Respondent(s) that additional response
actions are necessary.
55. Unless otherwise stated by EPA, within thirty (30) days of
receipt of notice from EPA that additional response activities
are necessary to meet any applicable Performance Standards,
Respondent(s) shall submit for approval by EPA a work plan for
the additional response activities. The plan shall conform .to
the applicable requirements of sections IX, XVI, and XVII -of this
Order. Upon EPA's approval of the plan pursuant to Section XIV,
Respondent(s) shall implement the plan for additional response
activities in accordance with the provisions and schedule
contained therein.
XI. EPA PERIODIC REVIEW
56. Under section 121(c) of CERCLA, 42 U.S.C. 9621(c), and any
applicable regulations, EPA may review the Site to assure that
the Work performed pursuant to this Order adequately protects
human health and the environment. Until such time as EPA
certifies completion of the Work, Respondent(s) shall conduct the
requisite studies, investigations, or other response actions as
determined necessary by EPA in order to permit EPA to conduct the
review under section 121(c) of CERCLA. As a result of any 'review
performed under this paragraph, Respondent(s) may be required to
perform additional Work or to modify Work previously performed.
XII. ADDITIONAL RESPONSE ACTIONS
57. EPA may determine that in addition to the Work identified in
this Order and attachments to this Order, additional response
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Directive Number 9833.O-2(b)
March 30, 1990
activities may be necessary to protect human health and the
environment. If EPA determines that additional response
activities are necessary, EPA may require Respondent(s) to submit
a work plan for additional response activities. EPA nay also
require Respondent(s) to modify any plan, design, or other
deliverable required by this Order, including any approved
modifications.
58. Not later than thirty (30) days after receiving EPA's notice
that additional response activities are required pursuant to -this
Section, Respondent(s) shall submit a work plan for the response
activities to EPA for review and approval. Upon approval by EPA,
the work plan is incorporated into this Order as a requirement of
this Order and shall be an enforceable part of this Order. Upon
approval .of the work plan by EPA, Respondent (s) shall implement
the work plan according to the standards, specifications, and
schedule in the approved work plan. Respondent(s) shall notify
EPA of their intent to perform such additional response
activities within seven (7) days after receipt of EPA's request
for additional response activities.
~ XIII. ENOANGERMENT AND EMERGENCY RESPONSE
59. In the event of any action or occurrence during the
performance of the Work which causes or threatens to cause a
release of a hazardous substance or which may present an
immediate threat to public health or welfare or the environment,
Respondent (s) shall immediately take all appropriate action to
prevent, abate, or minimize the threat, and shall immediately
notify EPA's Remedial Project Manager (RPM) or, if the RPM is
unavailable, EPA's Alternate RPM. If neither of these persons is
available Respondent(s) shall notify the EPA [Emergency Response
Unit], Region . Respondent(s) shall take such action in
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Directive Number 9833.0-2(b)
March 30, 1990
consultation with EPA's RPM and in accordance with all applicable
provisions of this Order, including but not limited to the Health
and Safety Plan and the Contingency Plan. In the event that
Respondent(s) fails to take appropriate response action as
required by this Section, and EPA takes that action instead,
Respondent(s) shall reimburse EPA for all costs of the response
action not inconsistent with the NCP. Respondent(s) shall pay
the response costs in the manner described in Section XXIV of
this Order, within thirty (30) days of Respondent's receipt of
demand for payment and a [name of standard Regionally-prepared
cost summary, which includes all direct and indirect costs
incurred by EPA and the state and their contractors] of the costs
incurred.
60. Nothing in the preceding paragraph shall be deemed to limit
any authority of the United States to take, direct, or order all
appropriate action to protect human health and the environment or
to prevent, abate, or minimize an actual or threatened release of
hazardous substances on, at, or from the Site.
XIV. EPA REVIEW OF SUBMISSIONS
[Note: Zf the state reviews the deliverable*, add a
reference to review and comment by the state.]
61. After review of any deliverable, plan, report or other item
which is required to be submitted for review and approval
pursuant to this Order, EPA may: (a) approve the submission; (b)
approve the submission with modifications; (c) disapprove the
submission and direct Respondent(s) to re-submit the document
after incorporating EPA's comments; or (d) disapprove the
submission and assume responsibility for performing all or any
part of the response action. As used in this Order, the terms
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Directive Number 9833.'0-2 (b)
March 30, 1990
"approval by EPA," "EPA approval," or a similar tern means the
action described in paragraphs (a) or (b) of this paragraph.
62. In the event of approval or approval with modifications by
EPA, Respondent (s) shall proceed to take any action required by
the plan, report, or other item, as approved or modified by EPA.
63. Upon receipt of a notice of disapproval or a request for a
modification, Respondent (s) shall, within twenty-one (21) days or
such longer time as specified by EPA in its notice of disapproval
or request-for modification, correct the deficiencies and
resubmit the plan, report, or other item for approval.
Notwithstanding the notice of disapproval, or approval with
modifications, Respondent (s) shall proceed, at the direction of
EPA, to take any action required by any non-deficient portion of
the submission.
64. If any submission is not approved by EPA, Respondent (s)
shall be deemed to be in violation of this Order.
XV. PROGRESS REPORTS
65. In addition to the other deliverables set forth in this
Order, Respondent(s) shall provide monthly progress reports to
EPA with respect to actions and activities undertaken pursuant to
this Order. The progress reports shall be submitted on or before
the day of each month following the effective date of this
Order. Respondent's obligation to submit progress reports
continues until EPA gives Respondent(s) written notice under
paragraph 53. At a minimum these progress reports shall: (1)
describe the actions which have been taken to comply with this
Order during the prior month; (2) include all results of sampling
and tests and all other data received by Respondent (s) and not
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Directive Number 9833.0-2(b)
March 30, 1990
previously submitted to EPA; (3) describe all work planned for
the next [insert time frame] with schedules relating such work to
the overall project schedule for RD/RA 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.
XVI. QUALITY ASSURANCE, SAMPLING AND DATA ANALYSIS
66. Respondent(s) shall use the quality assurance, quality
control, and chain of custody procedures described in the "EPA
NEIC Policies and Procedures Manual," May 1978, revised May 1986,
EPA-330/9-78-001-R, EPA's "Guidelines and Specifications for
Preparing Quality Assurance Program Documentation," June 1, 1987,
EPA's "Data Quality Objective Guidance," (EPA/540/G87/003 and
004) [insert other guidance or manuals as appropriate], and any
amendments to .these documents, while conducting all sample
collection and analysis activities required here.in by any plan.
To provide quality assurance and maintain quality control,
Respondent(s) shall:
a. Use only laboratories which have a documented Quality
Assurance Program that complies with EPA guidance
document QAMS-005/80.
'» '
b. Ensure that the laboratory used by the Respondent(s)
for analyses, performs according to a method or methods
deemed satisfactory to EPA and submits all protocols to
be used for analyses to EPA at least days before
beginning analysis.
c. Ensure that EPA personnel and EPA's authorized
representatives are allowed access to the laboratory
and personnel utilized by the Respondent(s) for
analyses.
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Directive Number 9833..0-2 (b)
March 30, 1990
67. Respondent(s) shall notify EPA not less than fourteen (14)
days in advance of any sample collection activity. At the
request of EPA, Respondent (s) shall allow split or duplicate
samples to be taken by EPA or its authorized representatives, of
any samples collected by Respondent (s) with regard to the Site or
pursuant to the implementation of this Order. In addition, EPA
shall have the right to take any additional samples that EPA
deems necessary.
XVII. COMPLIANCE WITH APPLICABLE LAW*
68. All activities by Respondent (s) pursuant to this Order shall
be performed in accordance with the requirements of all Federal
and state laws and regulations. EPA has determined that the
activities contemplated by this Order are consistent with the
National Contingency Plan (NCP).
69. Except as provided in section 121 (e) of CERCLA and the NCP,
no permit shall be required for any portion of the Work conducted
entirely on-Site. Where any portion of the Work requires a
Federal or state permit or approval, Respondent(s) shall submit
timely applications and take all other actions necessary to
obtain and to comply with all such permits or approvals.
70. This Order is not, and shall not be construed to be, a
permit issued pursuant to any Federal or state statute or
regulation.
71. All materials removed from the Site shall be disposed of or
treated at a facility approved by EPA's RPM and in accordance
with section 121(d)(3) of CERCLA, 42 U.S.C. 9621(d)(3) ; with
the U.S. EPA "Revised Off-Site policy," OSWER Directive 9834.11,
November 13, 1987; and with all other applicable Federal, state,
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Directive Number 9833.0-2(b)
March 30, 1990
and local requirements. [Note: EPA proposed "off-site"
regulations on November 29, 1988, 53 red. Reg. 48218. Cite to
the final regulations when they are published.]
XVIII. REMEDIAL PROJECT MANAGER
72. All communications, whether written or oral, from
Respondent(s) to EPA shall be directed to EPA's Remedial Project
Manager or Alternate Remedial Project Manager. Respondent(s)
shall submit to EPA three copies of all documents, including
plans, reports, and ether correspondence, which ara developed
pursuant to this Order, and shall send these documents by
[specify certified mail, return receipt requested or overnight
mail].
EPA's Remedial Project Manager is:
[Insert name, address, and telephone number of the RPM.]
EPA's Alternate Remedial Project Manager is:
[Insert name, address, and telephone number of the alternate
RPM. ]
73. EPA has the unreviewable right to change its Remedial
Project Manager or Alternate Remedial Project Manager. If EPA
changes its Remedial Project Manager or Alternate Remedial
Project Manager, EPA will inform Respondent(s) in writing of the
name, address, and telephone number of the new Remedial Project
Manager or Alternate Remedial Project Manager.
74. EPA's RPM and Alternate RPM shall have the authority
lawfully vested in a Remedial Project Manager (RPM) and On-Scene
Coordinator (OSC) by the National Contingency Plan, 40 C.F.R.
Part 300. EPA's RPM or Alternate RPM shall have authority,
consistent with the National Contingency Plan, to halt any work
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Directive Number 9833-.0-2(b)
March 30, 1990
required by this Order, and to take any necessary response
action.
75. Within ten (10) days after the effective date of this Order,
Respondent(s) shall designate a Project Coordinator and shall
submit the name, address, and telephone number of the Project
Coordinator to EPA for review and approval. Respondent's(')
Project Coordinator shall be responsible for overseeing
Respondent' s (') implementation of this Order. If Respondent (s)
wishes to change his/her Project Coordinator, Respondent(s) shall
provide written notice to EPA, five (5) days prior to changing
the Project Coordinator, of the name and qualifications of the
new Project Coordinator. Respondent(s) selection of a Project
Coordinator shall be subject to EPA approval.
XIX. ACCESS TO SITE NOT OWNED BY RESPONDENT(S)
[Insert the following paragraph only if all current owners,
including those owners of property needed for staging, are
not Respondents to this Order].
76. If the Site, the off-Site area that is to be used for
access, property where documents required to be prepared or
maintained by this Order are located, or other property subject
to or affected by the clean up, is owned in whole or in part by
parties other than those bound by this Order, Respondent(s) will
obtain, or use its (their) best efforts to obtain, site access
agreements from the present owner(s) within days of the
effective date of this Order. Such agreements shall provide
access for EPA, its contractors and oversight officials, the
state and its contractors, and Respondent (s) or Respondent (s)
authorized representatives and contractors, and such agreements
shall specify that Respondent(s) is not EPA's representative with
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Directive Number 9833.0-2(b)
March 30, 1990
respect to liability associated with Site activities.
Respondent(s) shall save and hold harmless the United States and
its officials, agents, employees, contractors, subcontractors, or
representatives for or from any and all claims or causes of
action or other costs incurred by the United States including but
not limited to attorneys fees and other expenses of litigation
and settlement arising from or on account of acts or omissions of
Respondent(s), its (their) officers, directors, employees,
agents, contractors, subcontractors, and any persons acting on
their behalf or under their control, in carrying out activities
pursuant to this Order, including any claims arising from any
designation of Respondent(s) as EPA's authorized
representative(s) under section 104(e) of CERCLA. 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. Subject to the United States'
non-reviewable discretion, EPA may use its legal authorities to
obtain access for the Respondent(s), may perform those response
actions with EPA contractors at the property in question, or may
terminate the Order if Respondent(s) cannot obtain access
agreements. If EPA performs those tasks or activities with
contractors and does not terminate the Order, Respondent(s) shall
perform all other activities not requiring access to that •
property, and shall reimburse EPA, pursuant to Section XXIV of
this Order, for all costs incurred in performing such activities.
Respondent(s) shall integrate the results of any such tasks
undertaken by EPA into its reports and deliverables.
Respondent(s) shall reimburse EPA, pursuant to Section XXIV of
this Order, for all response costs (including attorney fees)
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Directive Number 9833.0-2(b)
March 30, 1990
incurred by the United States to obtain access for Respondent(s).
XX. SITE ACCESS AND DATA/DOCUMENT AVAILABILITY
[Note: us* paragraph 77 only for parti** tbat own or hav*
access to the Sit* or off-Bit* ar*a.]
77. Respondent(s) shall allow EPA and its authorized
representatives and contractors to enter and freely move about
all property at the Site and off-Site areas subject to or
affected by the work under this Order or where documents required
to be prepared or maintained by this Order are located, 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 representatives or contractors
pursuant to this Order; reviewing the progress of the
Respondent (s) in carrying out the terms of this Order; conducting
tests as EPA or its authorized representatives or contractors
deem necessary; using a camera, sound recording device or other
documentary type equipment; and verifying the data submitted to
EPA by Respondent(s). Respondent(s) shall allow EPA and its
authorized representatives to enter the Site, to inspect and copy
all records, files, photographs, documents, sampling and
monitoring data, and other writings related to work undertaken in
carrying out this Order. Nothing herein shall be interpreted as
limiting or affecting EPA's right of entry or inspection
authority under Federal law.
78. 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 Order under 40 C.F.R. 2.203, provided such
claim is not inconsistent with section 104 (e) (7) of CERCLA, 42
U.S.C. 9604(e)(7) or other provisions of law. This claim shall
be asserted in the manner described by 40 C.F.R. 2.203(b) and
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Directive Number 9833J0-2(b)
March 30, 1990
substantiated by Respondent(s) at the tine 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) shall not
assert confidentiality claims with respect to any data related to
Site conditions, sampling, or monitoring.
79. Respondent(s) si.all maintain for the period during which
this Order is in effect, an index of documents that Respondent(s)
claims contain confidential business information. The index
shall contain, for each document, the date, author, addressee,
and subject of the document. Upon written request from EPA,
Respondent (s) shall submit a copy of the index to EPA.
XXI. RECORD PRESERVATION
80. Respondent(s) shall provide to EPA upon request, copies of
all documents and information within their possession and/or
control or that of their contractors or agents relating to
activities at the Site or to the implementation of this Order,
including but not limited to sampling, analysis, chain of custody
records, manifests, trucking logs, receipts, reports, sample
traffic routing, correspondence, or other documents or
information related to the Work. Respondent(s) shall also make
available to EPA for purposes of investigation, information
gathering, or testimony, their employees, agents, or
representatives with knowledge of relevant facts concerning the
performance of the Work.
81. Until ten (10) years after EPA provides notice pursuant to
paragraph 53, each Respondent shall preserve and retain all
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Directive Number 9833.-0-2 (b)
March 30, 1990
records and documents in its possession or control, including the
documents in the possession or control of their contractors and
agents on and after the effective date of this Order that relate
in any manner to the Site. At the conclusion of this document
retention period, Respondent(s) shall notify the United States at
least ninety (90) calendar days prior to the destruction of any
such records or documents, and upon request by the United States,
Respondent(s) shall deliver any such records or documents to EPA.
82. Until ten (10) years after EPA provides notice pursuant to
paragraph 53 of this Order, Respondent(s) shall preserve, and
shall instruct their contractors and agents to preserve, all
documents, records, and information of whatever kind, nature or
description relating to the performance of the Work. Upon the
conclusion of this document retention period, Respondent(s) shall
notify the United States at least ninety (90) days prior to the
destruction of any such records, documents or information, and,
upon request of the United States, Respondent(s) shall deliver
all such documents, records and information to EPA.
83. Within days after the effective date of this Order,
Respondent(s) shall submit a written certification to EPA's RPM
that they have not altered, mutilated, discarded, destroyed or
otherwise disposed of any records, documents or other information
relating to their potential liability with regard to the Site
since notification of potential liability by the United States or
the State or the filing of suit against it regarding the Site.
Respondent(s) shall not dispose of any such documents without
prior approval by EPA. Respondent(s) shall, upon EPA's request
and at no cost to EPA, deliver the documents or copies of the
documents to EPA.
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Directive Number 9833.0-2(b)
March 30, 1990
XXII. DELAY IN PERFORMANCE
84. Any delay in performance of this Order that, in EPA's
judgment, is not properly justified by Respondent(s) under the
terms of this paragraph shall be considered a violation of this
Order. Any delay in performance of this Order shall not affect
Respondent(s) obligations to fully perform all obligations under
the terms and conditions of this Order.
85. Respondent(s) shall notify EPA of any delay or anticipated
delay in performing any requirement of this Order. Such
notification shall be made by telephone to EPA's RPM or Alternate
RPM within forty eight (48) hours after Respondent(s) first knew
or should have known that a delay might occur. Respondent(s)
shall adopt all reasonable measures to avoid or minimize any such
delay. Within five (5) business days after notifying EPA by
telephone, Respondent(s) shall provide written notification fully
describing the nature of the delay., any justification for delay,
any reason why Respondent(s) should not be held strictly
accountable for failing to comply with any relevant requirements
of this Order, the measures planned and taken to minimize the
delay, and a schedule for implementing the measures that will be
taken to mitigate the effect of the delay. Increased costs or
expenses associated with implementation of the activities called
for in this Order is not a justification for any delay in
performance. ;
XXIII. ASSURANCE OF ABILITY TO COMPLETE WORK
86. Respondent(s) shall demonstrate its (their) ability to
complete the Work required by this Order and to pay all claims
that arise from the performance of the Work by obtaining and
presenting to EPA within thirty (30) days after approval of the
RD Work Plan, one of the following: (1) a performance bond; (2) a
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Directive Number 9833.0-2(b)
March 30, 1990
letter of credit; (3) a guarantee by a third party; or (4)
internal financial information to allow EPA to determine that
Respondent(s) has (have) sufficient assets available to perform
the Work. Respondent(s) shall demonstrate financial assurance in
an amount no less than the estimate of cost for the remedial
design and remedial action contained in the Record of Decision
for the Site. If Respondent(s) seeks to demonstrate ability to
complete the remedial action by means of internal financial
information, or by guarantee of a third party, they shall re-
submit such information annually, on the anniversary of the
effective date of this Order. If EPA determines that such
financial information is inadequate, Respondent(s) shall, within
thirty (30) days after receipt of EPA's notice of determination,
obtain and present to EPA for approval one of the other three
forms of financial assurance listed above.
87. At least seven (7) days prior to commencing any work at the
Site pursuant to this Order, Respondent(s) shall submit to EPA a
certification that Respondent(s) or its (their) contractors and
subcontractors have adequate insurance coverage or have
indemnification for liabilities for injuries or damages to
persons or property which may result from the activities to be
conducted by or on behalf of Respondent (s) pursuant to this
Order. Respondent(s) shall ensure that such insurance or
indemnification is maintained for the duration of the Work
required by this Order.
XXIV. REIMBURSEMENT OF RESPONSE COSTS
88. Respondent(s) shall reimburse EPA, upon written demand, for
all response costs incurred by the United States in overseeing
Respondent's implementation of the requirements of this Order or
in performing any response action which Respondent(s) fails to
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Directive Number 9833.0-2(b)
March 30, 1990
perform in compliance with this Order. EPA may submit to
Respondent(s) on a periodic basis an accounting of all response
costs incurred by the United States with respect to this Order.
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.
89. Respondent(s) shall, within thirty (30) days of receipt of
each EPA accounting, remit a certified or cashier's check for the
amount of those costs. Interest shall accrue from the later of
the date that payment of a specified amount is demanded in
writing or "the date of the expenditure. The interest rate is the
rate established by the Department of the Treasury pursuant to 31
U.S.C. 3717 and 4 C.F.R. 102.13.
90. Checks shall be made payable to the Hazardous Substances
Superfund and shall include the name of the Site, the Site
identification number, the account number and the title of this
Order. Checks shall be forwarded to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
91. Respondent(s) shall send copies of each transmittal letter
and check to the EPA's RPM.
XXV. UNITED STATES NOT LIABLE
92. The United States, by issuance of this Order, assumes no
liability for any injuries or damages to persons or property
resulting from acts or omissions by Respondent(s), or its (their)
directors, officers, employees, agents, representatives,
successors, assigns, contractors, or consultants in carrying out
any action or activity pursuant to this Order. Neither EPA nor
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Directive Number 9833.a-2(b)
March 30, 1990
the United States may be deemed to be a party to any contract
entered into by Respondent(s) or its (their) directors, officers,
employees, agents, successors, assigns, contractors, or
consultants in carrying out any action or activity pursuant to
this Order.
XXVI. ENFORCEMENT AND RESERVATIONS
93. EPA reserves the right to bring an action against
Respondent(s) under section 107 of CERCLA, 42 U.S.C. 9607, for
recovery of any response costs incurred by the United States
related to this Order and not reimbursed by Respondent(s). This
reservation~shall include but not be limited to past costs,
direct costs, indirect costs, the costs of oversight, the costs
of compiling the cost documentation to support oversight cost
demand, as well as accrued interest as provided in section 107(a)
of CERCLA.
94. Notwithstanding any other provision of this Order, at any
time during the response action, EPA may perform its own studies,
complete the response action (or any portion of the response
action) as provided in CERCLA and the NCP, and seek reimbursement
from Respondent(s) for its costs, or seek any other appropriate
relief.
95. Nothing in this Order shall preclude EPA from taking any
additional enforcement actions, including modification of this
Order or issuance of additional Orders, and/or additional
remedial or removal actions as EPA may deem necessary, or from
requiring Respondent(s) in the future to perform additional
activities pursuant to CERCLA, 42 U.S.C. 9606(a), et seq.. or
any other applicable law. Respondent(s) shall be liable under
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Directive Number 9833.O-2(b)
March 30, 1990
CERCLA section 107(a), 42 U.S.C. 9607(a), for the costs of any
such additional actions.
96. Notwithstanding any provision of this Order, the United
States hereby retains all of its information gathering,
inspection and enforcement authorities and rights under CERCLA,
RCRA and any other applicable statutes or regulations.
97. Respondent(s) shall be subject to civil penalties under
section 106(b) of CERCLA, 42 U.S.C. 9606(b), of not more than
$25,000 for each day in which Respondent(s) willfully violates,
or fails or refuses to comply with this Order without sufficient
cause. In addition, failure to properly provide response action
under this Order, or any portion hereof, without sufficient
cause, may result in liability under section 107(c)(3) of CERCLA,
42 U.S.C. 9607(c)(3), for punitive damages in an amount at
least equal to, and not more than three times the amount of any
costs incurred by the Fund as a result of such failure to take
proper action.
98. 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 for any liability it may have arising
out of or relating in any way to the Site.
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Directive Number 9833.0-2(b)
March 30, 1990
99. If a court issues an order that invalidates any provision of
this Order or finds that Respondent(s) has sufficient cause not
to comply with one or more provisions of this Order,
Respondent(s) shall remain bound to comply with all provisions of
this Order not invalidated by the court's order.
XXVII. ADMINISTRATIVE RECORD
100. Upon request by EPA, Respondent (s) must submit to EPA all
documents related to the selection of the response action for
possible inclusion in the administrative record file.
XXVIII. EFFECTIVE DATE AND COMPUTATION OF TIME
101. This order shall toe effective [insert 30 or 45 days] after
the Order is signed by the [Regional Administrator or delegatee].
All times for performance of ordered activities shall be
calculated from this effective date.
XXIX. OPPORTUNITY TO CONFER
102. Respondent (s) may, within ten (10) days after the date this
Order is signed, request a conference with EPA's
to discuss this Order. If requested, the conference shall occur
on [insert date] at [insert address of the regional office].
103. The purpose and scope of the conference shall be limited to
issues involving the implementation of the response actions
required by this Order and the extent to which Respondent(s)
intends to comply with this Order. This conference is not an
evidentiary hearing, and does not constitute a proceeding to
challenge this Order. It does not give Respondent (s) a right to
seek review of this Order, or to seek resolution of potential
liability, and no official stenographic record of the conference
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Directive Number 9833.0-2(b)
March 30, 1990
will be made. At any conference held pursuant to Respondent's
request, Respondent(s) may appear in person or by an attorney or
other representative.
104. Requests for a conference must be by telephone followed by
written confirmation mailed that day to [insert name, title/
address,, and telephone number of the EPA Project Coordinator].
So Ordered, this day of , 199_.
BY:
Regional Administrator [or Delegatee]
U.S. Environmental Protection Agency
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