UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
P«01
JUN 2 I I99J
MEMORANDUM
SUBJECT: Model CERCLA RD/RA Consent Decr.ee
FROM:
Raymond B. Ludwiszewski^
Acting Assistant Administrator f
Don R. Clay
Assistant Administra
Response
Enforcement
r Solid Waste and Emergency
TO:
Richard B. Stewart
Assistant Attorney General for the Environment and
Natural Resources, U.S. Department of Justice
Regional Administrators
Regions I-X
Attached is the interim final Model CERCLA RD/RA Consent
Decree. As discussed below, this document should be used as the
basis for fashioning remedial design/remedial action settlements
with potentially responsible parties under Sections 106, 107 and
122 of the Comprehensive Environmental Response, Compensation, and
Liability Act,.as amended. The Model Consent Decree provides
boiler-plate language for most provisions in order to standardize
CERCLA consent decrees as much as possible and expedite
settlements. The United States will commence negotiations with a
document which, for most provisions, is the same document the
government will insist on in a settlement because it reflects legal
and procedural terms that have been found acceptable to both the
Agency and the PRPs in a large number of situations.
The philosophy underlying the Model Consent Decree is
consistent with that espoused in the CERCLA Timeline prepared as a
result of the Superfund Management Review and in the Pre-Referral
Negotiations Procedures for Superfund Enforcement Cases. That
philosophy is to initiate and conclude RD/RA settlement
negotiations as expeditiously as possible and, ideally, within the
statutory 120-day special notice moratorium. See CERCLA Section
122(e)(2). The goal is to achieve a greater.number of settlements
in a more expeditious manner, on terms acceptable to the United
States and consistent with the intent of CERCLA, thereby permitting
more remedial work to proceed. Use of the Model Consent Decree is
designed to reduce the time and resources consumed during extensive
RD/RA settlement discussions by reducing across the board the
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number of issues the United States will negotiate with the PRPs.
In addition, use of the Model will reduce the amount of time spent
on internal government reviews of the documenr and will promote
national consistency.
In future RD/RA negotiations, EPA Regional Offices should
provide the PRPs with .a proposed consent decree, based on the
Model, that reflects site-specific considerations.1 The Office of '
Enforcement (OE) and the Office of Solid Waste and Emergency
Response (OSWER) will supporr efforts by Regional Offices and the
Department of Justice (DOJ) to draft and negotiate settlement terms
that go beyond the Model's provisions in terms of protecting the
interests of the United States. The Regions should work with the
Department of Justice and, as appropriate, EPA Headquarters to
craft site-specific language before sending the draft to the PRPs.2
When the United States sends the consent decree to the PRPs, the
negotiation team should inform the PRPs that many provisions of the
consent decree are nationally consistent boiler-plate provisions
that the United States does not plan to negotiate.
The Model Consent Decree does not include those provisions
that may be necessary to handle the wide-range of special
situations which may arise in the context of structuring CERCLA
settlements. For example, some settlements may require the
inclusion of a covenant not to sue by the United States to de
minimis defendants. In addition, a trust fund or other PRP funding
mechanism may be appropriate in cases involving large numbers of
PRPs. The negotiation team members should work with their
respective managements to develop language for such provisions. If
the provision raises issues of national or precedential
significance or if the settlement would otherwise require
concurrence by EPA Headquarters, the Region should consult with OE
before offering it to or agreeing to it with the PRPs.
1 For examples of provisions that must be modified in each
case, we direct your attention to the definition of "Site" and
Section VI (Performance of the Work by the Settling Defendants).
The term "Site" must be carefully defined not only to take into
account the work to be performed at the Site but the scope of the
covenant not to sue that the United States typically provides the
Settling Defendants. In addition, the section of the decree
detailing the "Work" must be tailored to take into account the type
of remedy that will be implemented at the Site.
2 If the state will be a party to the consent decree, it is
critical for the United States' negotiation team to coordinate with
the state's representatives prior to commencement of negotiations
with the PRPs.
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In addition, as previously .noted, while the presumptions are
that the Regions will use the Model as the basis for fashioning
settlements and that much of the document is considered to be
boiler-plate, Regions have the flexibility to adopt a baseline
approach to certain provisions that is more stringent than the
Model. Moreover, except as provided below and consistent with
current Agency delegations, the Regions may, in conjunction with
the Department of Justice, modify provisions of the Model in
developing the proposed consent decree in a particular case.
With respect to those provisions of the Model Consent Decree
that embody issues of national significance, the Regions must
consult with Headquarters before offering or agreeing to any
changes that would result in a significant deviation from national
policy. The following provisions fall into this category: Access,
Contribution Protection, Covenants, Dispute Resolution, Force
Majeure, Additional Response Actions (Section VII of the Model
Consent Decree), Certification of Completion, Stipulated Penalties
(structure of the provision, not the amount of penalties) , and
Indemnification. The Department of Justice and EPA Headquarters
will respond to the Region as expeditiously as possible in order to
insure that negotiations are not delayed.
The U.S. EPA Periodic Review provision also involves issues of
national significance. However, in recognition of the case-
specific evaluation that must be performed with respect to the role
and importance of this provision in a given settlement, the Regions
are not required to consult with Headquarters with respect to
changes in this provision. Among the factors to be considered in
determining whether to include this provision are the completeness
and reliability of the remedy, the strengths and weaknesses of the
liability case against the defendants, and the scope of the
covenant not to sue that is given to the defendants in the
settlement. The Regions should work closely with the Department of
Justice in evaluating these factors and determining the
government's final position in this provision in a given
settlement.
The attached Model Consent Decree does not include a paragraph
identifying the performance standards for the remedy. However,
these standards must be identified in the ROD and the SOW and those
documents will be attached to the consent decree and incorporated
therein. The attorneys and technical staff on the negotiation team
both must focus on those documents to ensure that the standards are
clearly stated and enforceable.
Of course, processing of any final settlements shall be in
accordance with current Agency delegations. Nothing in this
memorandum should be interpreted as modifying the existing waivers
of Headquarters' settlement concurrence authorities that are
embodied in the June 17, 1988 memorandum from .the Assistant
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Administrators for the Office of Enforcement and Compliance
Monitoring and the Office of Solid Waste and Emergency Response.
Moreover, EPA Headquarters will continue its general policy of
referring any inquiries to Headquarters from PRPs or their counsel
regarding site-specific issues or negotiations back to the
appropriate Regional Office or the Department of Justice.
The attached Model Consent Decree and the procedures for its
use outlined in this memo shall be applicable to all sites for
which special notice letters are issued or a proposed consent
decree is sent to the PRPs beginning 60 days after the date of this
memorandum. For all other sites, the attached Model Consent Decree
is not applicable, and current negotiation positions and schedules
will not be affected by this Model. In particular, the Agency will
not re-negotiate provisions in on-going or concluded negotiations
which were previously agreed to with PRPs or in decrees lodged but
not yet entered.
If you have any questions regarding the Model Consent Decree,
please contact Sandra Connors in OE (382-3110) or Paul Connor in
OWPE (245-3656).
Attachment
cc: Donald Elliot, General Counsel
David Ryan, Comptroller
Henry Longest, Director, Office of Emergency and Remedial
Response
Bruce M. Diamond, Director, Office of Waste Programs
Enforcement
Regional Counsel, Regions I-X
Waste Management Division Directors, Regions I-X
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OSWER Directive Number 9835.17
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MODEL CERCLA RD/RA CONSENT DECREE
This model and any internal procedures adopted for its implementation
and use are intended solely as guidance for employees of the U.S.
Environmental Protection Agency. They do not constitute rulemaking
by the Agency and may not be relied upon to create a right or
benefit, substantive or procedural, enforceable at law or in equity,
by any person. The Agency may take action at variance with this
model or its internal implementing procedures.
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I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
XIII.
XIV.
XV.
XVI.
XVII.
XVIII.
XIX.
XX.
XXI.
XXII.
XXIII.
XXIV.
i OSWER Directive Number 9835.17
TABLE OF CONTENTS
MODEL CERCLA RD/RA CONSENT DECREE
BACKGROUND
JURISDICTION
PARTIES BOUND ,
DEFINITIONS ,
GENERAL PROVISIONS ,
PERFORMANCE OF THE WORK BY SETTLING DEFENDANTS . . ,
ADDITIONAL RESPONSE ACTIONS . . i ,
EP; ^ERIODIC REVIEW
QU. .TY ASSURANCE. SAMPLING, and DATA ANALYSIS . . .
REPORTING REQUIREMENTS
SUBMISSIONS REQUIRING AGENCY APPROVAL
PROJECT COORDINATORS
ASSURANCE OF ABILITY TO COMPLETE WORK
CERTIFICATION OF COMPLETION
EMERGENCY RESPONSE
REIMBURSEMENT OF RESPONSE COSTS . . .
INDEMNIFICATION AND INSURANCE
FORCE MAJEURE ...
DISPUTE RESOLUTION
STIPULATED PENALTIES
COVENANTS NOT TO SUE BY PLAINTIFFS
COVENANTS BY SETTLING DEFENDANTS
EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION .
1
4
5
6
11
14
21
23
24
26
28
31
33
35
36
39
41
44
47
50
54
58
63
64
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ii OSWER Directive Number 9835.17
XXV. ACCESS TO INFORMATION . . . 65
XXVI. RETENTION OF RECORDS 67
XXVII. NOTICES AND SUBMISSIONS 69
XXVIII. EFFECTIVE DATE 70
XXIX. RETENTION OF JURISDICTION 70
XXX. APPENDICES 71
XXXI. COMMUNITY RELATIONS 71
XXXII. MODIFICATION 71
XXXIII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT 72
XXXIV. SIGNATORIES/SERVICE 73
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MODEL CERCLA RD/RA CONSENT DECREE OSWER Directive Number 9835.17
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF
DIVISION
UNITED STATES OF AMERICA [and )
STATE OF _ ] )
)
Plaintiffs, )
) CIVIL ACTION NO.
v. )
)
_ , INC., )
Defendants. )
CONSENT DECREE
I. BACKGROUND
A. The United States of America ("United States"), on behalf
of the Administrator of the United States Environmental Protection
Agency ("EPA"), filed a complaint in this matter pursuant to
Sections 106 and 107 of the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA"), 42 U.S.C. S§ 9606,
9607.
B. The United States in its complaint seeks, inter alia:
(1) reimbursement of costs incurred by EPA and the Department of
Justice for response actions at the Superfund Site in
, , together with accrued interest;
and (2) performance of studies and response work by the Defendants
at the Site consistent with the National Contingency Plan, 40
C.F.R. Part 300 (as amended) ("NCP").
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C. In accordance with the NCP and Section 121(f)(i)(F) of
CERCLA, 42 U.S.C. S 9621(f)(1)(F), EPA notified the State of
(the "State") on , 19 of
negotiations with potentially responsible parties regarding the
implementation of the remedial design and remedial action for the
Site, and EPA has provided the State with an opportunity to
participate in such negotiations and be a party to this Consent
Decree.
[D. The State of (the "State") has also
filed a complaint against the defendants in this Court alleging
that the defendants are liable to the State under Section 107 of
CERCLA, 42 U.S.C. S 9607, and [list state laws cited in the State's
complaint], for: .]
E. In accordance with Section 122(j)(l) of CERCLA, 42 U.S.C.
§ - 9622(j)(1), EPA notified the [relevant Federal natural resource
trustee(s)] on , 19 of negotiations with potentially
responsible parties regarding the release of hazardous.substances
that may have resulted in injury to the natural resources under
Federal trusteeship and encouraged the trustee(s) to participate in
the negotiation of this Consent Decree.
F. The Defendants that have entered into this Consent Decree
("Settling Defendants") do not admit any liability to the
Plaintiff[s] arising out of the transactions or occurrences alleged
in the complaint[s].
G. Pursuant to Section 105 of CERCLA, 42 U.S.C. S 9605, EPA
placed the Site on the National Priorities List, set forth at 40
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C.FiR. Part 300, Appendix B, by publication in the Federal Register
on , 19 , Fed. Reg. •
H. In response to a release or a substantial threat of a
release of a hazardous substance(s) at or from the Site, EPA [or
the Settling Defendants, other PRPs at the Site, or the State]
commenced on , 19 , a Remedial Investigation and
Feasibility Study ("RI/FS") for the Site pursuant to 40 C.F.R.
S 300.430;
I. EPA [or the Settling Defendants, other PRPs at the Site,
or the State] completed a Remedial Investigation ("RI") Report on
, , 19 , and EPA [or the Settling Defendants, other
PRPs at the Site, or the State] completed [issued] a Feasibility
Study ("FS") Report on , 19 ;
J. Pursuant to Section 117 of CERCLA, 42 U.S.C. S 9617, EPA
published notice of the completion of the FS and of the proposed
plan for remedial action on , 19 , in a major
local newspaper of general circulation. EPA provided an
opportunity for written and oral comments from the public on the
proposed plan for remedial action. A copy of the transcript of the
public meeting is available to the public as part of the
administrative record upon which the Regional Administrator based
the selection of the response action.
K. The decision by EPA on the remedial action to be
implemented at the Site is embodied in a final Record of Decision
("ROD"), executed on . , 19 , [on which the State had a
reasonable opportunity to review and comment/on which the State has
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given its concurrence.] The ROD includes [EPA's explanation for
any significant differences between the final plan and the proposed
plan as well as ]a responsiveness summary to the public comments.
Notice of the final plan was published in accordance with Section
117(b) of CERCLA.
L. Based on the information presently available to EPA [and
the State], EPA [and the State] believe[s] that the Work will be
properly and promptly conducted by the Settling Defendants if
conducted in accordance with the requirements of this Consent
Decree and its appendices.
M. Solely for the purposes of Section 113 (j) of CERCLA, the
Remedial Action selected by the ROD and the Work to be performed by
the Settling Defendants shall constitute a response action taken or
ordered by the President.
N. The Parties recognize, and the Court by entering this
Consent Decree finds, that this Consent Decree has been negotiated
by the Parties in good faith and implementation of this Consent
Decree will expedite the cleanup of the Site and will avoid
prolonged and complicated litigation between the Parties, and that
this Consent Decree is fair, reasonable, and in the public
interest.
NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:
II. JURISDICTION
1. This Court has jurisdiction over the subject matter of
this action pursuant to 28 U.S.C. SS 1331 and 1345, and 42 U.S.C.
SS 9606, 9607, and 9613(b). This Court also has personal
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jurisdiction over the Settling Defendants. Solely for the purposes
of this Consent Decree and the underlying complaint[s], Settling
Defendants waive all objections and defenses that they nay have to
jurisdiction of the Court or to venue in this District. Settling
Defendants shall not challenge the terns of this Consent Decree or
this Court's jurisdiction to enter and enforce this Consent Decree.
III. PARTIES BOUND
2. This Consent Decree applies to and is binding upon the
United States [and the State] and upon Settling Defendants and
their [heirs,] successors and assigns. Any change in ownership or
corporate status of a Settling Defendant including, but not linited
to, any transfer of assets or real or personal property shall in no
way alter such Settling Defendant's responsibilities under this
Consent Decree.
3. Settling Defendants shall provide a copy of this Consent
Decree to each contractor hired to perforn the Work (as defined
below) required by this Consent Decree and to each person
representing any Settling Defendant with respect to the Site or the
Work and shall condition all contracts entered into hereunder upon
perfornance of the Work in confornity with the terns of this
Consent Decree. Settling Defendants or their contractors shall
provide written notice of the Consent Decree to all subcontractors
hired to perform any portion of the Work required by this Consent
Decree. Settling Defendants shall nonetheless be responsible for
ensuring that their contractors and subcontractors perforn the Work
contenplated herein in accordance with this Consent Decree. With
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regard to the activities undertaken pursuant to this Consent
Decree/ each contractor and subcontractor shall be deemed to be in
a contractual relationship with the Settling Defendants within the
meaning of Section 107(b)(3) of CERCLA, 42 U.S.C. $ 9607(b)(3).
IV. DEFINITIONS
4. Unless otherwise expressly provided herein, terns used in
this Consent Decree which are defined in CERCLA or in regulations
promulgated under CERCLA shall have the meaning assigned to them in
CERCLA or in such regulations. Whenever terms listed below are
used in this Consent Decree or in the appendices attached hereto
and incorporated hereunder, the following definitions shall apply:
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C.
SS 9601 Łt sea.
"Consent Decree" shall mean this Decree and all appendices
attached hereto (listed in Section XXX). In the event of conflict
between this Decree and any appendix, this Decree shall control.
"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 Consent Decree, where the last day would fall on a
Saturday, Sunday, or Federal holiday, the period shall run until
the close of business of the next working day.
"EPA" shall mean the United States Environmental Protection
Agency and any successor departments or agencies of the United
States.
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." shall mean the (State Pollution Control
Agency or Environmental Protection Agency) and any successor
departments or agencies of the State.
"Future Response Costs'1 shall mean all costs, including, but
not limited to, direct and indirect costs, that the United States
[and the State] incur(s) in reviewing or developing plans, reports
and other items pursuant to this Consent Decree, verifying the
Work, or otherwise implementing, overseeing, or enforcing this
Consent Decree, including, but not limited to, payroll costs,
contractor costs, travel costs, laboratory costs, the costs
incurred pursuant to Sections VII, VIII, X (including, but not
limited to, attorneys fees and the amount of just compensation),
XVI, and Paragraph 84 of Section XXII. Future Response Costs shall
also include all costs, including direct and indirect costs, paid
by the United States [and the State] in connection with the Site
between [insert the date identified in the Past Response Costs
definition] and the effective date of this Consent Decree and all
interest on the Past Response Costs from [insert the date
identified in the Past Response Costs definition] to [the date of
payment of the Past Response Costs].
"National Contingency Plan" or "NCP" shall mean the National
Oil and Hazardous Substances Pollution Contingency Plan promulgated
pursuant to Section 105 of CERCLA, 42 U.S.C. S 9605, codified at 40
r
i
C.F.R. Part 300, including, but not limited to, any amendments
thereto.
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"Operation and Maintenance" or "0 & M" shall mean all
activities required to maintain the effectiveness of the Remedial
Action as required under the Operation and Maintenance Plan
approved or developed by EPA pursuant to this Consent Decree and
the Statement of Work (SOW).
"Owner Settling Defendants" shall mean the Settling Defendants
listed in Appendix E.
"Paragraph" shall mean a portion of this Consent Decree
identified by an arabic numeral or an upper case letter.
"Parties" shall mean the United States [, the State of
. _ ,] and the Settling Defendants.
"Past Response Costs" shall mean all costs, including, but not
limited to, direct and indirect costs and interest, that the United
States [and the State] incurred and paid with regard to the Site
prior to [the date of the most recent cost update].
"Performance Standards" shall mean those cleanup standards,
standards of control, and other substantive requirements, criteria
or limitations set forth in the ROD or Section _ of the SOW.
"Plaintiff [s]" shall mean the United States [and the State of
"RCRA" shall mean the Solid Waste Disposal Act, as amended, 42
U.S.C. SS 6901 et seq. (also known as the Resource Conservation and
Recovery Act) .
"Record of Decision" or "ROD" shall mean the EPA Record of
Decision relating to the [Site or _ Operable Unit at the Site]
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signed on , 19 , by the Regional Administrator,
EPA Region , and all attachments thereto.
"Remedial Action" shall mean those activities, except for
Operation and Maintenance, to be undertaken by the Settling
Defendants to implement the final plans and specifications
submitted by the Settling Defendants pursuant to the Remedial
Design Work Plan and approved by EPA.
"Remedial Action Work Plan" shall mean the document submitted
by the Settling Defendants pursuant to Paragraph 12.a of this
Consent Decree and described more fully in Paragraph 12.b.
"Remedial Design" shall mean those activities to be undertaken
by the Settling Defendants to develop the final plans and
specifications for the Remedial Action pursuant to the Remedial
Design Work Plan.
"Remedial Design Work Plan" shall mean the document submitted
by the Settling Defendants pursuant to Paragraph 11.a of this
Consent Decree and described more fully in Paragraph 11.b.
"Section" shall mean a portion of this Consent Decree
identified by a roman numeral.
"Settling Defendants" shall mean those Parties identified in
Appendices D (Non-Owner Settling Defendants) and E (Owner Settling
Defendants) .
["Site" shall mean the Superfund site,
encompassing approximately acres, located at [address or
description of location] in fname of cityl. County,
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Fna-me of state! and depicted generally on the map attached as
Appendix C. ]
"State" [or "Commonwealth"] shall mean the State
[Coaunonwealthj of .
"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 Appendix B
to this Consent Decree anc any modifications made in accordance
with this Consent Decree.
"Supervising Contractor" shall mean the principal contractor
retained by the Settling Defendants to supervise and direct the
implementation of the Work under this Consent Decree.
"United States" shall mean the United States of America.
"Waste Material" shall mean (1) any "hazardous substance"
under Section 101(14) of CERCLA, 42 U.S.C. $ 9601(14); (2) any
pollutant or contaminant under Section 101(33), 42 U.S.C.
5 9601(33); [(3) any "solid waste" under Section 1004(27) of RCRA,
42 U.S.C. S 6903(27); and (4) any "hazardous material" under [State
statutory citation]].
"Work" shall mean all activities Settling Defendants are
required to perform under this Consent Decree, except those
required by Section XXVI (Retention of Records).
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V. GENERAL PROVISIONS
5. Objectives of the Parties
The objectives of the Parties in entering into this Consent
Decree are to protect public health or welfare or the environment
at the Site by the design and implementation of response actions at
the Site by the Settling Defendants and to reimburse response costs
of the Plaintiffs.
6. Commitments by Settling Defendants
a. Settling Defendants shall finance and perform the
Work in accordance with this Consent Decree and all plans,
standards, specifications, and schedules set forth in or developed
and approved by EPA pursuant to this Consent Decree. Settling
Defendants shall also reimburse the United States [and the State]
for Past Response Costs and Future Response Costs as provided in
this Consent Decree.
b. The obligations of Settling Defendants to finance and
perform the Work and to pay amounts owed the United States [and the
State] under this Consent Decree are joint and several. In the
event of the insolvency or other failure of any one or more
Settling Defendants to implement the requirements of this Consent
Decree, the remaining Settling Defendants shall complete all such
requirements.
7. Compliance With Applicable Law
All activities undertaken by Settling Defendants pursuant to
this Consent Decree shall be performed in"accordance with the
requirements of all applicable federal and state laws and
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regulations. Settling Defendants must also comply with all
applicable or relevant and appropriate requirements of all Federal
and state environmental laws as set forth in the ROD and the SOW.
The activities conducted pursuant to this Consent Decree, if
approved by EPA, shall be considered to be consistent with the NCP.
8. Permits
a. As provided in Section 121(e) of CERCLA and 5300.5 of
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, Settling Defendants shall
submit timely and complete applications and take all other actions
necessary to obtain all such permits or approvals.
b. The Settling Defendants may seek relief under the
provisions of Section XIX (Force Majeure) of this Consent Decree
for any delay in the performance of the Work resulting from a
failure to obtain, or a delay in obtaining, any permit required for
the Work.
c. This Consent Decree is not, and shall not be
construed to be, a permit issued pursuant to any federal or state
statute or regulation.
[9. Notice of Obligations to Successors-in-Title
a. Within 15 days after the entry of this Consent
Decree, the Owner Settling Defendant(s) shall record a certified
copy of this Consent Decree with the Recorder's Office [or Registry
of Deeds or other appropriate office], _ County,
State of . Thereafter, each deed, title, or other
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instrument conveying an interest in the property included in the
Site shall contain a notice stating that the property is subject to
this Consent Decree [and any lien retained by th^ United States]
and shall reference the recorded location of the Consent Decree and
any restrictions applicable to the property under this Consent
Decree.
b. The obligations of each Owner Settling Defendant with
respect to the provision of access under Section X (Access) [and
the implementation of institutional controls under Section ]
shall be binding upon any and all such Settling Defendants and any
and all persons who subseguently acquire any such interest or
portion thereof (hereinafter "Successors-in-Title"). Within 15
days after the entry of this consent Decree, each Owner Settling
Defendant shall record at the Recorder's Office [or Registry of
Deeds or other appropriate office where land ownership and transfer
records are maintained for the property] a notice of obligation to
provide access under Section X (Access) and related covenants.
Each subsequent instrument conveying an interest to any such
property included in the Site shall reference the recorded location
of such notice and covenants applicable to the property.
c. Any Owner Settling Defendant and any Successor-in-
Title shall, at least 30 days prior to the conveyance of any such
interest, give written notice of this Consent Decree to the grantee
and written notice to EPA [and the State] of the proposed
conveyance, including the name and address of the grantee, and the
date on which notice of the Consent Decree was given to the
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grantee. In the event of any such conveyance, the Settling
o
Defendants' obligations under this Consent Decree, including their
obligations to provide or secure access pursuant to Section X,
shall continue to be net by the Settling Defendants. In addition,
if the United States [and the State] approve[s], the grantee nay
perform sone or all of the Work under this Consent Decree. In no
event shall the conveyance of an interest in property that
includes, or is a portion of, the Site release or otherwise affect
the liability of the Settling Defendants to conply with the Consent
Decree.]
VI. PERFORMANCE OF THE WORK BY SETTLING DEFENDANTS
[10. Selection of Supervising Contractor.
a. All aspects of the Work to be perforned by Settling
Defendants pursuant to Sections VI (Performance of the Work by
Settling Defendants), VII (Additional Response Actions), VIII
(U.S. EPA Periodic Review), and IX (Quality Assurance, Sanpling and
Data Analysis) of this Consent Decree shall be under the direction
and supervision of the Supervising Contractor, the selection of
which shall be subject to disapproval by EPA[ after a reasonable
opportunity for review and comment by the State.] within 10 days
after the lodging of this Consent Decree, Settling Defendants shall
notify EPA [and the State] in writing of the nane, title, and
qualifications of any contractor proposed to be the Supervising
Contractor. EPA will issue a notice of disapproval or an
authorization to proceed. If at any tine thereafter, Settling
Defendants propose to change a Supervising Contractor, Settling
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Defendants shall give such notice to EPA [and the State] and must
obtain an authorization to proceed from EPA[, after a reasonable
opportunity for review and comment by the State,] before the new
Supervising Contractor performs, directs, or supervises any Work
under this Consent Decree.
b. If EPA disapproves a proposed Supervising Contractor,
EPA will notify Settling Defendants in writing. Settling
Defendants shall submit to EPA [and the State] a list of
contractors, including the qualifications of each contractor, that
would be acceptable to them within 30 days of receipt of EPA's
disapproval of the contractor previously proposed. EPA will
provide written notice of the names of any contractor(s) that it
disapproves and an authorization to proceed with respect to any of
the other contractors. Settling Defendants may select any
contractor from that list that is not disapproved and shall notify
EPA [and the State] of the name of the contractor selected within
21 days of EPA's authorization to proceed.
c. If EPA fails to provide written notice of its
authorization to proceed or disapproval as provided in this
Paragraph and this failure prevents the Settling Defendants from
meeting one or more deadlines in a plan approved by the EPA
pursuant to this Consent Decree, Settling Defendants may seek
relief under the provisions of Section XIX (Force Majeure) hereof.]
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[11. Remedial Design.
a. Within days after EPA's issuance of an
authorization to proceed pursuant to Paragraph 10, Settling
Defendants shall submit to EPA and the State a work plan for the
design of the Remedial Action at the Site ("Remedial Design Work
Plan"). The Remedial Design Work Plan shall provide for design of
the remedy set forth in the XOD in accordance with the SOW and,
upon its approval by EPA, shall be incorporated into and become
enforceable under this Consent Decree. Within days after EPA's
issuance of an authorization to proceed, the Settling Defendants
shall submit to EPA and the State a Health and Safety Plan for
field design activities which conforms to the applicable
Occupational Safety and Health Administration and EPA requirements
including, but not limited to, 29 C.F.R. S 1910.120.
b. The Remedial Design Work Plan shall include plans and
schedules for implementation of all remedial design and pre-design
tasks identified in the SOW, including, but not limited to, plans
and schedules for the completion of: [List all items which should
be included in*the Remedial Design Work Plan. This list will be
based on site specific factors and may include the following items:
(1) design sampling and analysis plan (including, but not limited
to, a Remedial Design Quality Assurance Project Plan (RD QAPP) in
accordance with Section IX (Quality Assurance, Sampling and Data
Analysis)); (2) a treatability study; (3) a Pre-design Work Plan;
(4) a preliminary design submittal; (5) an intermediate design
submittal; (6) a pre-final/final design submittal; and (7) a
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Construction Quality Assurance Plan.] In addition, the Remedial
Design Work Plan shall include a schedule for completion of the
Remedial Action Work Plan.
c. Upon approval of the Remedial Design Work Plan by
EPA, after a reasonable opportunity for review and comment by the
State, and submittal of the Health and Safety Plan for all field
activities to EPA and the State, Settling Defendants shall
implement the Remedial Design Work Plan. The Settling Defendants
shall submit to EPA and the State all plans, submittals and other
deliverables required under the approved Remedial Design Work Plan
in accordance with the approved schedule for review and approval
pursuant to Section XII (Submissions Requiring Agency Approval).
Unless otherwise directed by EPA, Settling Defendants shall not
commence further Remedial Design activities at the Site prior to
approval of the Remedial Design Work Plan.
d. The preliminary design submittal shall include, at a
minimum, the following: (l) design criteria; (2) results of
treatability studies; (3) results of additional field sampling and
pre-design work; (4) project delivery strategy; (5) preliminary
plans, drawings and sketches; (6) required specifications in
outline form; and (7) preliminary construction schedule.
e. The intermediate design submittal, if required by EPA
or if independently submitted by the Settling Defendants, shall be
a continuation and expansion of the preliminary design. Any value
engineering proposals must be identified and evaluated during this
review.
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f. The pre-final/final design submittal shall include,
at a minimum, the following: (1) final plans and specifications;
(2) Operation and Maintenance Plan; (3) Construction Quality
Assurance Project Plan (CQAPP) ; (4) Field Sampling Plan (directed
at measuring progress towards meeting Performance Standards); and
(5) Contingency Plan. The CQAPP, which shall detail the approach
to quality assurance during construction activities at the site,
shall specify a quality assurance official ("QA Official") ,
independent of the Supervising Contractor, to conduct a quality
assurance program during the construction phase of the project.]
[12. Remedial Action.
a. Within days after the approval of the final design
submittal, Settling Defendants shall submit to EPA and the State, a
work plan for the performance of the Remedial Action at the Site
("Remedial Action Work Plan"). The Remedial Action Work Plan shall
provide for construction of the remedy, in accordance with the SOW,
as set forth in the design plans and specifications in the approved
final design submittal. Upon its approval by EPA, the Remedial
Action Work Plan shall be incorporated into and become enforceable
under this Consent Decree. At the same time as they submit the
Remedial Action Work Plan, Settling Defendants shall submit to EPA
and the State a Health and Safety Plan for field activities
required by the Remedial Action Work Plan which conforms to the
applicable Occupational Safety and Health Administration and EPA
requirements including, but not limited to, 29 C.F.R. S 1910.120.
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b. The Remedial Action Work Plan shall include the
following: [List all activities for which methodologies, plans and
schedules should be included in the Remedial Action Work Plan.
This list will be based on site specific factors and .may include
the following: (1) the schedule for completion of the Remedial
Action; (2) method for selection of the contractor; (3) schedule
for developing and submitting other required Remedial Action plans;
(4) methodology for implementation of the Construction Quality
Assurance Plan; (5) a groundwater monitoring plan; (6) methods for
satisfying permitting requirements; (7) methodology for
implementation of the Operation and Maintenance Plan; (8)
methodology for implementation of the Contingency Plan;
(9) tentative formulation of the Remedial Action team; (10)
construction quality control plan (by constructor); and (11)
procedures and plans for the decontamination of equipment and the
disposal of contaminated materials.] The Remedial Action Work Plan
also shall include a schedule for implementation of all Remedial
Action tasks identified in the final design submittal and shall
identify the initial formulation of the Settling.Defendants'
Remedial Action Project Team (including, but not limited to, the
^Supervising Contractor).
c. Upon approval of the Remedial Action Work° Plan by
EPA, after a reasonable opportunity for review and comment by the
State, Settling Defendants shall implement the activities required
under the Remedial Action Work Plan. The Settling Defendants shall
submit to EPA and the State all plans, submittals, or other
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deliverables required under the approved Remedial Action Work Plan
in accordance with the approved schedule for review and approval
pursuant to Section XII (Submissions Requiring Agency Approval).
Unless otherwise directed by EPA, Settling Defendants shall not
'commence physical on-site activities at the Site prior to approval
of the Remedial Action Work Plan.]
-13. The Work performed by the Settling Defendants pursuant to
this Consent Decree shall include the obligation to achieve the
Performance Standards.
14. Settling Defendants acknowledge and agree that nothing in
this Consent Decree, the SOW, or the Remedial Design or Remedial
Action Work Plans constitutes a warranty or representation of any
kind by Plaintiff[s] that compliance with the work requirements set
forth in the SOW and the Work Plans will achieve the Performance
Standards. Settling Defendants' compliance with the work
requirements shall not foreclose Plaintiff[s] from seeking
compliance with all terms and conditions of this Consent Decree,
including, but not limited to, the applicable Performance
Standards.
15. Settling Defendants shall, prior to any off-Site
shipment of Waste Material from the Site to an out-of-state waste
management facility, provide written notification to the
appropriate state environmental official in the receiving
facility's state and to the EPA Project Coordinator of such
shipment of Waste Material. However, this notification requirement
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shall not apply to any off-Site shipments when the total volume of
all such shipments will not exceed 10 cubic yards.
a. The Settling Defendants shall include in the written
notification che following information, where available: (1) the
name and location of the facility to which the Waste Material are
to be shipped; (2) the type and quantity of the Waste Material to
be shipped; (3) the expected schedule for the shipment of the Waste
Material; and (4) the method of transportation. The Settling
Defendants shall notify the state in which the planned receiving
facility is located of major changes in the shipment plan, such as
a decision to ship the Waste Material 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 the Settling Defendants following the award of the
contract for Remedial Action construction. The Settling Defendants
shall provide the information required by Paragraph 15.a as soon as
practicable after the award of the contract and before the Waste
Material is actually shipped.
VII. ADDITIONAL RESPONSE ACTIONS
16. In the event that EPA determines or the Settling
Defendants propose that additional response actions are necessary
to meet the Performance Standards or to carry out the remedy
selected in the ROD, notification of such additional response
actions shall be provided to the Project Coordinator for the other
party(ies).
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17. Within 30 days of receipt of notice from EPA or Settling
Defendants pursuant to Paragraph 16 that additional response
actions are necessary (or such longer time as may be specified by
EPA), Settling Defendants shall submit for approval by EPA, after
reasonable opportunity for review and comment by the State, a work
plan for the additional response actions. The plan shall conform
to the applicable requirements of Paragraphs 11 and 12. Upon
approval of the plan pursuant to Section XII (Submissions Requiring
Agency Approval) , Settling Defendants shall implement the plan for
additional response actions in accordance with the schedule
contained therein.
18. Any additional response actions that Settling Defendants
propose are necessary to meet the Performance Standards or to carry
out the remedy selected in the ROD shall be subject to approval by
EPA, after reasonable opportunity for review and comment by the
State, and, if authorized by EPA, shall be completed by Settling
Defendants in accordance with plans, specifications, and schedules
approved or established by EPA pursuant to Section XII (Submissions
Requiring Agency Approval).
19. Settling Defendants may invoke the procedures set forth
in Section XX (Dispute Resolution) to dispute EPA's determination
that additional response actions are necessary to meet the
Performance Standards or to carry out the remedy selected in the
ROD. Such a dispute shall be resolved pursuant to Paragraphs 62-
65 of this Consent Decree.
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VIII. EPA PERIODIC REVIEW
20. Settling Defendants shall conduct any studies and
investigations.as requested by EPA in order to permit EPA to
conduct reviews at least every five years as required by Section
121(c) of CERCLA and any applicable regulations.
21. If required by Sections 113(k)(2) or 117 of CERCLA,
Settling Defendants and the public will be provided with an
opportunity to comment on any further response actions proposed by
EPA as a result of the review conducted pursuant to Section 121 (c).
of CERCLA and to submit written comments for the record during the
public comment period. After the period for submission of written
comments is closed, the Regional Administrator, EPA Region , or
his/her delegate will determine in writing whether further response
actions are appropriate.
22. If the Regional Administrator, EPA Region , or his/her
delegate determines that information received, in whole or in part,
during the review conducted pursuant to Section 121(c) of CERCLA,
indicates that the Remedial Action is not protective of human
health and the environment, the Settling Defendants shall undertake
any further response actions EPA has determined are appropriate,
unless their liability for such further response actions is barred
by the Covenant Not to Sue set forth in Section XXII. Settling
Defendants shall submit a plan for such work to EPA for approval in
accordance with the procedures set forth in Section VI (Performance
of the Work by Settling Defendants) and shall implement the plan
approved by EPA. The Settling Defendants may invoke the procedures
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set forth in Section XX (Dispute Resolution) to dispute (l) EPA's
determination that the remedial action is not protective of human
health and the environment, (2) EPA's selection of the further
response actions ordered as arbitrary and capricious or otherwise
not in accordance with law, or (3) EPA's determination that the
Settling Defendant's liability for the further response actions
requested is reserved in Paragraphs 80, 81, or 83 or otherwise not
barred by the Covenant Not to Sue set forth in Section XXII.
. IX. QUALITY ASSURANCE. SAMPLING, and DATA ANALYSIS
23. Settling Defendants shall use quality^assurance, quality
control, and chain of custody procedures for all [treatability,
design, compliance and monitoring] samples in accordance with EPA's
"Interim Guidelines and Specifications For Preparing Quality
Assurance Project Plans," December 1980, (QAMS-005/80) ; "Data
Quality Objective Guidance," (EPA/540/G87/003 and 004); "EPA NEIC
Policies and Procedures Manual," May 1978, revised November 1984,
(EPA 330/9-78-001-R); and subsequent amendments to such guidelines
upon notification by EPA to Settling Defendants of such amendment.
Amended guidelines shall apply only to procedures conducted after
such notification. Prior to the commencement of any monitoring
project under this Consent Decree, Settling Defendants shall submit
to EPA for approval, after a reasonable opportunity for review and
comment by the State, a Quality Assurance Project Plan ("QAPP") to
EPA and the State that is consistent with the SOW, the NCP and
[applicable guidance documents.] If relevant to the proceeding,
the Parties agree that validated sampling data generated in
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- 25 - OSWER DIRECTIVE NO. 9835.17
accordance with the QAPP(s) and reviewed and approved by EPA shall
be admissible as evidence, without objection, in any proceeding
under this Decree. Settling Defendants shall ensure that EPA [and
State] personnel and its [their] authorized representatives are
allowed access at reasonable tines to all laboratories utilized by
Settling Defendants in implementing this Consent Decree. In
addition, Settling Defendants shall ensure that such laboratories
shall analyze all samples submitted by EPA pursuant to the QAPP for
quality assurance monitoring. Settling Defendants shall ensure
that the laboratories they utilize for the analysis of samples
taken pursuant to this Decree perform all analyses according to
accepted EPA methods. Accepted EPA methods consist of those
methods which are documented in the ["Contract Lab Program
Statement of Work for Inorganic Analysis" and the "Contract Lab
Program Statement of Work for Organic Analysis," dated February
1988], and any amendments made thereto during the course of the
implementation of this Decree. Settling Defendants shall ensure
that all laboratories they use for analysis of samples taken
pursuant to this Consent Decree participate in an EPA or EPA-
equivalent QA/QC program.
24. Upon request, the Settling Defendants shall allow split
or duplicate samples to be taken by EPA [and the State] or their
authorized representatives. Settling Defendants shall notify EPA
[and the State] not less than [28] days in advance of any sample
collection activity unless shorter notice is agreed to by EPA. In
addition, EPA [and the State] shall have the right to take any
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- 26 - OSWER DIRECTIVE NO. 9835.17
additional samples that EPA [or the State] deem necessary. Upon
request, EPA [and the State] shall allow the Settling Defendants to
take split or duplicate samples of any samples it takes as part of
the Plaintiff «'s['] oversight of the Settling Defendant's
implementation of the Work.
25. Settling Defendants shall submit to EPA [and the State]
copies of the results of all sampling and/or tests or other data
obtained or generated by or on behalf of Settling Defendants with
respect to the Site and/or the implementation of this Consent
Decree unless EPA agrees otherwise.
26. Notwithstanding any provision of this Consent Decree, the
United States [and the State] hereby retains all of its information
gathering and inspection authorities and rights, including
enforcement actions related thereto, under CERCLA, RCRA and any
other applicable statutes or regulations.
X. ACCESS
27. Commencing upon the date of lodging of this Consent
Decree, the Settling Defendants agree to provide the United
States[, the State,] and their representatives, including EPA and
its contractors, access at all reasonable times to the Site and any
other property to which access is required for the implementation
of this Consent Decree, to the extent access to the property is
controlled by Settling Defendants, for the purposes of conducting
any activity related to this Consent Decree including, but not
limited to:
a. Monitoring the Work;
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b. Verifying any data or information submitted to the
United States;
c. Conducting investigations relating to contamination
at or near the Site;
d. Obtaining samples;
e. Assessing the need for, planning, or implementing
additional response actions at or near the Site;
f. Inspecting and copying records, operating logs,
contracts, or other documents maintained or generated by Settling
Defendants or their agents, consistent with Section XXV; and
g. Assessing Settling Defendants' compliance with this
Consent Decree.
28. To the extent that the Site or any other property to
which access is required for the implementation of this Consent
Decree is owned or controlled by persons other than Settling
Defendants, Settling Defendants shall use best efforts to secure
from such persons access for Settling Defendants, as well as for
the United States and the State and their representatives,
including, but not limited to, their contractors, as necessary to
effectuate this Consent Decree. For purposes of this Paragraph
"best efforts" includes the payment of reasonable sums of money in
consideration of access. If any access required to complete the
Work is not obtained within 45 days of the date of lodging of this
Consent Decree, or within 45 days of the date EPA notifies the
Settling Defendants in writing that additional access beyond that
previously secured is necessary, Settling Defendants shall promptly
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notify the United States, and shall include in that notification a
summary of the steps Settling Defendants have taken to attempt to
obtain access. The United States [or the State] may, as it deems
appropriate, assist Settling Defendants in obtaining access.
Settling Defendants shall reimburse the United States [or the
State], in accordance with the procedures in Section XVII
(Reimbursement of Response Costs), for all costs incurred by the
United States in obtaining access.
29. Notwithstanding any provision of this Consent Decree, the
United States [and the State] retain[s] all of its access
authorities and rights, including enforcement authorities related
thereto, under CERCLA, RCRA and any other applicable statute or
regulations.
XI. REPORTING REQUIREMENTS
30. In addition to any other requirement of this Consent
Decree, Settling Defendants shall submit to EPA and the State
copies of written [monthly] progress reports that: (a) describe
the actions which have been taken toward achieving compliance with
this Consent Decree during the previous [month]; (b) include a
summary of all results of sampling and tests and all other data
received or generated by Settling Defendants or their contractors
or agents in the previous [month]; (c) identify all work plans,
plans and other deliverables required by this Consent Decree
completed and submitted during the previous [month]; (d) describe
all actions, including, but not limited to, data collection and
implementation of work plans, which are scheduled for the next [six
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weeks] and provide other information relating to the progress of
construction, including, but not limited to, critical path
diagrams, Gantt charts and Pert charts; (e) include information
regarding percentage of completion, unresolved delays encountered
or anticipated that may affect the future schedule for
implementation of the Work, and a description of efforts made to
mitigate those delays or anticipated delays; (f) include any
modifications to the work plans or other schedules that Settling
Defendants have proposed to EPA or that have been approved by EPA;
and (g) describe all activities undertaken in support of the
Community Relations Plan during the previous [month] and those to
be undertaken in the next [six weeks]. Settling Defendants shall
submit these progress reports to EPA and- the State by the [tenth
day of every month] following the lodging of this Consent Decree
until [EPA notifies the Settling Defendants pursuant to Paragraph
48.b of Section XV (Certification of Completion).] If requested by
EPA [or the State], Settling Defendants shall also provide
briefings for EPA [and the State] to discuss the progress of the
Work.
31. The Settling Defendants shall notify EPA of any change in
the schedule described in the monthly progress report for the
performance of any activity, including; but not limited to, data
collection and implementation of work plans, no later than seven
days prior to the performance of the activity.
32. Upon the occurrence of any event during performance of
the Work that Settling Defendants are required to report pursuant
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to Section 103 of CERCLA or Section 304 of the Emergency Planning
and Community Right-to-know Act (EPCRA), Settling Defendants shall.
within 24 hours of the on-set of such event orally notify the EPA
Project Coordinator or the Alternate EPA Project Coordinator (in
the event of the unavailability of the EPA Project Coordinator) ,
or, in the event that neither the EPA Project Coordinator or
Alternate EPA Project Coordinator is available, the Emergency
Response Section, Region , United States Environmental Protection
Agency. These reporting requirements are in addition to the
reporting required by CERCLA Section 103 or EPCRA Section 304.
33. Within 20 days of the onset of such an event, Settling
Defendants shall furnish to Plaintiffs a written report, signed by
the Settling Defendant's Project Coordinator, setting forth the
events which occurred and the measures taken, and to be taken, in
response thereto. Within 30 days of the conclusion of such an
event, Settling Defendants shall submit a report setting forth all
actions taken in response thereto.
34. Settling Defendants shall submit copies of all plans,
reports, and data required by the SOW, the Remedial Design Work
Plan, the Remedial Action Work Plan, or any other approved plans to
EPA in accordance with the schedules set forth in such plans.
Settling Defendants shall simultaneously submit copies of all
such plans, reports and data to the State.
35. All reports and other documents submitted by Settling
Defendants to EPA (other than the [monthly] progress reports
referred to above) which purport to document Settling Defendants'
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compliance with the terms of this Consent Decree shall be signed by
an authorized representative of the Settling Defendants.
XII.. SUBMISSIONS REQUIRING AGENCY APPROVAL
36. After review of any plan, report or other item which is
required to be submitted for approval pursuant to this Consent
Decree, EPA, after reasonable opportunity for review and comment by
the State, shall: (a) approve, in whole or in part, the submission;
(b) approve the submission upon specified conditions; (c) modify
the submission to cure the deficiencies; (d) disapprove, in whole
or in part, the submission, directing that the Settling Defendants
modify the submission; or (e) any combination of the above.
37. In the event of approval, approval upon conditions, or
modification by EPA, pursuant to Paragraph 36(a), (b), or (c),
Settling Defendants shall proceed to take any action required by
the plan, report, or other item, as approved or modified by EPA
subject only to their right to invoke the Dispute Resolution
procedures set forth in Section XX (Dispute Resolution) with
respect to the modifications or conditions made by EPA. In the
event that EPA modifies the submission to cure the deficiencies
pursuant to Paragraph 36(c) and the submission has a material
defect, EPA retains its right to seek stipulated penalties, as
provided in Section XXI.
38. a. Upon receipt of a notice of disapproval pursuant to
Paragraph 36(d), Settling Defendants shall, within 14 days or such
other time as specified by EPA in such notice, correct the
deficiencies and resubmit the plan, report, or other item for
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approval. Any stipulated penalties applicable to the submission,
as provided in Section XXI, shall accrue during the 14-day period
or otherwise specified period but shall not be payable unless the
resubmission is disapproved or modified due to a material defect as
provided in Paragraph 39.
-b. Notwithstanding the receipt of a notice of disapproval
pursuant to Paragraph 36(d), Settling Defendants shall proceed, at
the direction of EPA, to take any action required by any non-
deficient portion of the submission. Implementation of any non-
deficient portion of a submission shall not relieve Settling
Defendants of any liability for stipulated penalties under Section
XXI (Stipulated Penalties).
39. In the event that a resubmitted plan, report or other
item, or portion thereof, is disapproved by EPA, EPA may again
require the Settling Defendants to correct the deficiencies, in
accordance with the preceding Paragraphs. EPA also retains the
right to amend or develop the plan, report or other item. Settling
Defendants shall implement any such plan, report, or item as
amended or developed by EPA, subject only to their right to invoke
the procedures set forth in Section XX (Dispute Resolution) .
40. If upon resubmission, a plan, report, or item is
disapproved or modified by EPA due to a material defect, Settling
Defendants shall be deemed to have failed to submit such plan,
report, or item timely and adequately unless the Settling
Defendants invoke the dispute resolution procedures set forth in
Section XX (Dispute Resolution) and EPA's action is overturned
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pursuant to that Section. The provisions of Section XX (Dispute
Resolution) and Section XXI (Stipulated Penalties) shall govern the
implementation of the Work and accrual and payment of any
stipulated penalties during Dispute Resolution. If EPA's
disapproval or modification is upheld, stipulated penalties shall
accrue for such violation from the date on which the initial
submission was originally required, as provided in Section XXI.
41. All plans, reports, and other items required to be
submitted to EPA under this Consent Decree shall, upon approval or
modification by EPA, be enforceable under this Consent Decree. In
the event EPA approves or modifies a portion of a plan, report, or
other item required to be submitted to EPA under this Consent
Decree, the approved or modified portion shall be enforceable under
this Consent Decree.
XIII. PROJECT COORDINATORS
42. Within 20 days of lodging this Consent Decree, Settling
Defendants[, the State] and EPA will notify each other, in writing,
of the name, address and telephone number of their respective
designated Project Coordinators and Alternate Project Coordinators.
If a Project Coordinator or Alternate Project Coordinator initially
designated is changed, the identity of the successor will be given
to the other parties at least 5 working days before the changes
occur, unless impracticable, but in no event later than the actual
day the change is made. The Settling Defendants' Project
Coordinator shall be subject to disapproval by EPA and shall have
the technical expertise sufficient to adequately oversee all
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aspects of the Work. The Settling Defendants' Project Coordinator
shall not be an attorney for any of the Settling Defendants in this
matter. He or sh-3 may assign other representatives, including
other contractors, to serve as a Site representative for oversight
of performance of daily operations during remedial activities.
43. Plaintiff[s] may designate other representatives,
including, but not limited to, EPA [and State] employees, and
federal [and State] contractors and consultants, to observe and
monitor the progress of any activity undertaken pursuant to this
Consent Decree. EPA's Project Coordinator and Alternate Project
Coordinator shall have the authority lawfully vested in a Remedial
Project Manager (RPM) and an On-Scene Coordinator (OSC) by the
National Contingency Plan, 40 C.F.R. Part 300. In addition, EPA's
Project Coordinator or Alternate Project Coordinator shall have
authority, consistent with the National Contingency Plan, to halt
any Work required by this Consent Decree and to take any necessary
response action when s/he determines that conditions at the Site
constitute an emergency situation or may present an immediate
threat to public health or welfare or the environment due to
release or threatened release of Waste Material.
[44. EPA's Project Coordinator and the Settling Defendants'
Project Coordinator will meet, at a minimum, on a monthly basis.]
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XIV. ASSURANCE OF ABILITY TO COMPLETE WORK
45. Within 30 days of entry of this Consent Decree, Settling
Defendants shall establish and maintain financial security in the
amount of $ in one of the following forms:
(a) A surety bond guaranteeing performance of the Work;
(b) One or more irrevocable letters of credit equalling
the total estimated cost of the Work;
(c) A trust fund;
(d) A guarantee to perform the Work by one or more parent
corporations or subsidiaries, or by one or more unrelated
corporations that have a substantial business relationship with at
least one of the Settling Defendants; or
(e) A demonstration that one or more of the Settling
Defendants satisfy the requirements of 40 C.F.R. Part 264.143(f).
46. If the Settling Defendants seek to demonstrate the
ability to complete the Work through a guarantee by a third party
pursuant to Paragraph 45(d) of this Consent Decree, Settling
Defendants shall demonstrate that the guarantor satisfies the
requirements of 40 C.F.R. Part 264.143(f). If Settling Defendants
seek to demonstrate their ability to complete the Work by means of
the financial test or the corporate guarantee pursuant to Paragraph
45 (d) or (e), they shall resubmit sworn statements conveying the
information required by 40 C.F.R. Part 264.143 (f) annually, on the
anniversary cf the effective date of this Consent Decree. In the
event that EPA[, after a reasonable opportunity for review and
comment by the State,] determines at any time that the financial
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assurances provided pursuant to this Section are inadequate,
Settling Defendants shall, within 30 days of receipt of notice of
EPA's determination, obtain and present to EPA for approval one of
the other forms of financial assurance listed in Paragraph 45 of
this Consent Decree. Settling Defendants' inability to demonstrate
financial ability to complete the Work shall not excuse performance
of any activities required under this Consent Decree.
XV. CERTIFICATION OF COMPLETION
47. Completion of the Remedial Action
a. Within 90 days after Settling Defendants conclude
that the Remedial Action has been fully performed and the
Performance Standards have been attained, Settling Defendants shall
schedule and conduct a pre-certification inspection to be attended
by Settling Defendants[,] [and] EPA [and the State], If, after the
pre-certification inspection, the Settling Defendants still believe
that the Remedial Action has been fully performed and the
Performance Standards have been attained, they shall submit a
written report requesting certification to EPA for approval, with a
copy to the State, pursuant to Section XII (Submissions Requiring
Agency Approval) within 30 days of the inspection. In the report,
a registered professional engineer and the Settling Defendants'
Project Coordinator shall state that the Remedial Action has been
completed in full satisfaction of the requirements of this Consent
Decree. The written report shall include as-built drawings signed
and stamped by a professional engineer. The report shall contain
the following statement, signed by a responsible corporate official
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of a Settling Defendant or the Settling Defendants' Project
Coordinator:
"To the best of my knowledge, after thorough
investigation, I certify that the information contained
in or accompanying this submission is true, accurate and
complete. I am aware that there are significant
penalties for submitting false information, including the
possibility of fine and imprisonment for knowing
violations."
If, after completion of the pre-certification inspection and
receipt and review of the written report, EPA, after reasonable
opportunity to review and comment by the State, determines that the
Remedial Action or any portion thereof has not been completed in
accordance with this Consent Decree or that the Performance
Standards have not been achieved, EPA will notify Settling
Defendants in writing of the activities that must be undertaken to
complete the Remedial Action and achieve the Performance Standards.
EPA will set forth in the notice a schedule for performance of such
activities consistent with the Consent Decree and the SOW or
require the Settling Defendants to submit a schedule to EPA for
approval pursuant to Section XII (Submissions Requiring Agency
Approval). Settling Defendants shall perform all activities
described in the notice in accordance with the specifications and
schedules established pursuant to this Paragraph, subject to their
right to invoke the dispute resolution procedures set forth in
Section XX (Dispute Resolution).
b. If EPA concludes, based on the initial or any
subsequent report requesting Certification of Completion and after
a reasonable opportunity for review and comment by the State, that
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the Remedial Action has been fully performed in accordance with
this Consent Decree and that the Performance standards have been
achieved, EPA will so certify in writing to Settling Defendants.
This certification shall constitute the Certification of Completion
of the Remedial Action for purposes of this Consent Decree,
including, but not limited to, Section XXII (Covenants Not to Sue
by Plaintiffs). Certification of Completion of the Remedial Action
shall not affect Settling Defendants' obligations under this
Consent Decree.
48. Completion of the Work
a. Within 90 days after Settling Defendants conclude that
all phases of the Work (including 0 & M), have been fully
performed, Settling Defendants shall schedule and conduct a pre-
certification inspection to be attended by Settling Defendants[,]
[and] EPA [and the State]. If, after the pre-certification
inspection, the Settling Defendants still believe that the Work has
been fully performed, Settling Defendants shall submit a written
report by a registered professional engineer stating that the Work
has been completed in full satisfaction of the requirements of this
Consent Decree. The report shall contain the following statement,
signed by a responsible corporate official of a Settling Defendant
or the Settling Defendants' Project Coordinator:
"To the best of my knowledge, after thorough
investigation, I certify that the information contained
in or accompanying this submission is true, accurate and
complete. I am aware that there are significant
penalties for submitting false information, including the
possibility of fine and imprisonment for knowing
violations."
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If, after review of the written report, EPA, after reasonable
opportunity to review and comment by the State, determines that any
portion of the Work has not been completed in accordance with this
Consent Decree, EPA will notify Settling Defendants in writing of
the activities that must be undertaken to complete the Work. EPA
will set forth in the notice a schedule for performance of such
activities consistent with the Consent Decree and the SOW or
require the Settling Defendants to submit a schedule to EPA for
approval pursuant to Section XII (Submissions Requiring Agency
Approval). Settling Defendants shall perform all activities
described in the notice in accordance with the specifications and
schedules established therein, subject to their right to invoke the
dispute resolution procedures set forth in Section XX (Dispute
Resolution).
b. If EPA concludes, based on the initial or any
subsequent request for Certification of Completion by Settling
Defendants and after a reasonable opportunity for review and
comment by the State, that the Work has been fully performed in
accordance with this Consent Decree, EPA will so notify the
Settling Defendants in writing.
XVI. EMERGENCY RESPONSE
49. In the event of any action or occurrence during the
performance of the Work which causes or threatens a release of
Waste Material from the Site that constitutes an emergency
situation or may present an immediate threat to public health or
welfare or the environment, Settling Defendants shall, subject to
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Paragraph 50, immediately take all appropriate action to prevent,
abate, or minimize such release or threat of release, and shall
immediately notify the EPA's Project Coordinator, or, if the
Project Coordinator is unavailable, EPA's Alternate Project
Coordinator. If neither of these persons is available, the
Settling Defendants shall notify the EPA [Emergency Response Unit],
Region . Settling Defendants shall take such actions in
consultation with EPA's Project Coordinator or other available
authorized EPA officer and in accordance with all applicable
provisions of the Health and Safety Plans, the Contingency Plans,
and any other applicable plans or documents developed pursuant to
the SOW. In the event that Settling Defendants fail to take
appropriate response action as required by this Section, and EPA
[or, as appropriate, the State] take[s] such action instead,
Settling Defendants shall reimburse EPA [and the State] all costs
of the response action not inconsistent with the NCP pursuant to
Section XVII (Reimbursement of Response Costs).
50. Nothing in the preceding Paragraph or in this Consent
Decree shall be deemed to limit any authority of the United
States[, or the State,] to take, direct, or order all appropriate
action or to seek an order from the Court to protect human health
and the environment or to prevent, abate, respond to, or minimize
an actual or threatened release of Waste Material on, at, or from
the Site.
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XVII. REIMBURSEMENT OF RESPONSE COSTS
51. Within 30 days of the effective date of this Consent
Decree, Settling Defendants shall:
a. Pay to the United States $_ _ , in the form of
a certified check or checks made payable to "EPA Hazardous
Substance Superfund," and referencing CERCLA Number FSite/Spill ID
Number 1 and DOJ Case Number _ in reimbursement of Past
Response Costs. The Settling Defendants shall forward the
certified check (s) to. [Insert appropriate Regional Superfund
Lockbox number and address] and shall send copies of the check to
the United States as specified in Section XXVII (Notices and
Submissions) and [names of any other receiving officials at EPA and
their mailing addresses].
[b. Pay to the State $ _ in the form of a
certified check or checks made payable to __ , in
reimbursement of Past Response Costs incurred by the State. The
Settling Defendants shall send the certified check (s) to
52. Settling Defendants shall reimburse the United States
[and the State] for all Future Response Costs not inconsistent with
the National Contingency Plan incurred by the United States [and
the State]. The United States [and the State] will [each] .send
Settling Defendants a bill requiring payment that includes a [name
standard Regionally-prepared cost summary, which includes direct
and indirect costs incurred by EPA, DOJ and the State and their
contractors] on a [periodic] basis. Settling Defendants shall make
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all payments within 30 days of Settling Defendants' receipt of each
bill requiring payment, except as otherwise provided in Paragraph
53. The Settling Defendants shall make all payments required by
this Paragraph in the manner described in Paragraph 51.
53. Settling Defendants may contest payment of any Future
Response Costs under Paragraph 52 if they determine that the United
States [or the State] has made an accounting error or if they
allege that a cost item that is included represents costs that are
inconsistent with the NCP. Such objection shall be made in writing
within 30 days of receipt of the bill and must be sent to the
United States [(if the United States' accounting is being disputed)
or the State (if the State's accounting is being disputed)]
pursuant to Section XXVII (Notices and Submissions). Any such
objection shall specifically identify the contested Future Response
Costs and the basis for objection. In the event of an objection,
the Settling Defendants shall within the 30 day period pay all
uncontested Future Response Costs to the United States [or the
State] in the manner described in Paragraph 51. Simultaneously,
the Settling Defendants shall establish an interest bearing escrow
account in a federally-insured bank duly chartered in the State of
and remit to that escrow account funds equivalent to the
amount of- the contested Future Response Costs. The Settling
Defendants shall send to the United States, as provided in Section
XXVII (Notices and Submissions), [and the State] a copy of the
transmittal letter and check paying the uncontested Future Response
Costs, and a copy of the correspondence that establishes and funds
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the escrow account, including, but not limited to, information
containing the identity of the bank and bank account under which
the escrow account is established as well as a bank statement
showing the initial balance of the escrow account'. Simultaneously
'with establishment of the escrow account, the Settling Defendants
shall initiate the Dispute Resolution procedures in Section XX
(Dispute Resolution). If tne United States [or the State] prevails
in the dispute, within 5 days of the resolution of the dispute, the
Settling Defendants shall pay the sums due (with accrued interest)
to the United States [or the State, if State costs are disputed,]
in the manner described in Paragraph 51. If the Settling
Defendants prevail concerning any aspect of the contested costs,
the Settling Defendants shall pay that portion of the costs (plus
associated accrued interest) for which they did not prevail to the
United States [or the State, if State costs are disputed] in the
manner described in Paragraph 51; Settling Defendants shall be
disbursed any balance of the escrow account. The dispute
resolution procedures set forth in this Paragraph in conjunction
with the procedures set forth in Section XX (Dispute Resolution)
shall be the exclusive mechanisms for resolving disputes regarding
the Settling Defendants1 obligation to reimburse the United States
[and the State] for its [their] Future Response Costs.
54. In the event that the payments required by Paragraph 51
are not made within 30 days of the effective date of this Consent
Decree or the payments required by Paragraph 52 are not made within
30 days of the Settling Defendants' receipt of the bill, Settling
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Defendants shall pay interest on the unpaid balance at the rate
established pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607.
The interest to be paid on Past Response Costs shall begin to
accrue on the effective date of the Consent Decree. The interest
on Future Response Costs shall begin to accrue on the date of the
Settling Defendants' receipt of the bill. Interest shall accrue at
the rate specified through the date of the Settling Defendant's
payment. Payments of interest made under this Paragraph shall be
in addition to such other remedies or sanctions available to
Plaintiffs by virtue of Settling Defendants' failure to make timely
payments under this Section.
XVIII. INDEMNIFICATION AND INSURANCE
55. The United States [and the State] do[es] not assume any
liability by entering into this agreement or by virtue of any
designation of Settling Defendants as EPA's authorized
representatives under Section 104(e) of CERCLA. Settling
Defendants shall indemnify, save and hold harmless the United
States[, the State,] and its [their] officials, agents, employees,
contractors, subcontractors, or representatives for or from any and
all claims or causes of action arising from, or on account of, acts
or omissions of Settling Defendants, 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 Consent Decree, including, but not
limited to, any claims arising from any designation of Settling
Defendants as EPA's authorized representatives under Section 104(e)
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of CERCLA. Further, the Settling Defendants agree to pay the
United States [and the State] all costs it [they] incurs including,
but not limited to, attorneys fees and other expenses of litigation
and settlement arising from, or on account of, claims made against
the United States based on acts or omissions of Settling
Defendants, 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
Consent Decree. [Neither] the United States [nor the State] shall
[not] be held out as a party to any contract entered into by or on
behalf of Settling Defendants in carrying out activities pursuant
to this Consent Decree. Neither the Settling Defendants nor any
such contractor shall be considered an agent of the United States
[or the State].
56. Settling Defendants waive all claims against the United
States[ and the State] for damages or reimbursement or for set-off
of any payments made or to be made to the United States [or the
State], arising from or on account of any contract, agreement, or
arrangement between any one or more of Settling Defendants and any
person for performance of Work on or relating to the Site,
including, but not limited to, claims on account of construction
delays. In addition, Settling Defendants shall indemnify and hold
harmless the United States [and the State] with respect to any and
all claims for damages or reimbursement arising from or on account
of any contract, agreement, or arrangement between any one or more
of Settling Defendants and any person for performance of Work on or
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relating to the Site, including, but not limited to, claims on
account of construction delays.
57. No later than 15 days before commencing any on-site Work,
Settling Defendants shall secure, and shall maintain [until the
first anniversary of EPA's Certification of Completion of the
Remedial Action pursuant to Paragraph 47.b. of Section XV
(Certification of Completion)] comprehensive general liability
insurance and automobile insurance with limits of million
dollars, combined single limit naming as additional insured the
United States [and the state]. In addition, for the duration of
this Consent Decree, Settling Defendants shall satisfy, or shall
ensure that their contractors or subcontractors satisfy, all
applicable laws and regulations regarding the provision of worker's
compensation insurance for all persons performing the Work on
behalf of Settling Defendants in furtherance of this Consent
Decree. Prior to commencement of the Work under this Consent
Decree, Settling Defendants shall provide to EPA [and the State]
certificates of such insurance and a copy of each insurance policy.
Settling Defendants shall resubmit such certificates and copies of
policies each year on the anniversary of the effective date of this
Consent Decree. If Settling Defendants demonstrate by evidence
satisfactory to EPA [and the State] that any contractor or
subcontractor maintains insurance equivalent to that described
above, or insurance covering the same risks but in a lesser amount,
then, with respect to that contractor or subcontractor, Settling
Defendants need provide only that portion of the insurance
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described above which is not maintained by the contractor or
subcontractor.
XIX. FORCE MAJEURE
58. "Force majeure," for purposes of this Consent Decree, is
defined as any event arising from causes beyond the control of the
Settling Defendants or of any entity controlled by Settling
Defendants, including, but not limited to, their contractors and
subcontractors, that delays or prevents the performance of any
obligation under this Consent Decree despite Settling Defendants'
best efforts to fulfill the obligation. The requirement that the
Settling Defendants exercise "best efforts to fulfill the
obligation" includes using best efforts to anticipate any potential
force majeure event and best efforts to address the effects of any
potential force majeure event (1) as it is occurring and (2)
following the potential force majeure event, such that the delay is
minimized to the greatest extent possible. "Force Majeure" does
not include financial inability to complete the Work or a failure
to attain the Performance Standards.
59. If any event occurs or has occurred that may delay the
performance of any obligation under this Consent Decree, whether or
not caused by a force majeure event, the Settling Defendants shall
notify orally EPA's Project Coordinator or, in his or her absence,
EPA's Alternate Project Coordinator or, in the event both of EPA's
designated representatives are unavailable, [the Director of the
Hazardous Waste Management Division, EPA Region ], within [48]
hours of when Settling Defendants first knew or should have known
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that the event might cause a delay, within [5] days thereafter,
Settling Defendants shall provide in writing to EPA [and the State]"
an explanation and description of the reasons for the delay; the
anticipated duration of the delay; all actions taken or to be taken
to prevent or minimize the delay; a schedule for implementation of
any measures to be taken to prevent or mitigate the delay or the
effect of the delay; the Settling Defendants' rationale for
attributing such delay to a force majeure event if they intend to
assert such a claim; and a statement as to whether, in the opinion
of the Settling Defendants, such event may cause or contribute to
an endangerment to public health, welfare or the environment. The
Settling Defendants shall include with any notice all available
documentation supporting their claim that the delay was
attributable to a force majeure. Failure to comply with the above
requirements shall preclude Settling Defendants from asserting any
claim of force majeure for that event. Settling Defendants shall
be deemed to have notice of any circumstance of which their
contractors or subcontractors had or should have had notice.
60. If EPA[, after a reasonable opportunity for review and
comment by the State,] agrees that the delay or anticipated delay
is attributable to a force ma jeure event, the time for performance
of the obligations under this Consent Decree that are affected by
the force majeure event will be extended by EPA[, after a
reasonable opportunity for review and comment by the State,] for
such time as is necessary to complete those obligations. An
extension of the time for performance of the obligations affected
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by the force majeure event shall not, of itself, extend the time
for performance of any other obligation, if EPA[, after a
reasonable opportunity for review and comment by the State,] does
not agree that the delay or anticipated delay has been or will be
caused by a force majeure event, EPA will notify the Settling
Defendants in writing of its decision. If EPA[, after a reasonable
opportunity for review and comment by the State,] agrees that the
delay is attributable to a force majeure event, EPA will notify the
Settling Defendants in writing of the length of the extension, if
any, for performance of the obligations affected by the force
majeure event.
61. If the Settling Defendants elect to invoke the dispute
resolution procedures set forth in Section XX (Dispute Resolution),
they shall do so no later than 15 days after receipt of EPA's
notice. In any such proceeding, Settling Defendants shall have the
burden of demonstrating by a preponderance of the evidence that the
delay or anticipated delay has been or will be caused by a force
majeure event, that the duration of the delay or the extension
sought was or will be warranted under the circumstances, that best
efforts were exercised to avoid and mitigate the effects of the
delay, and that Settling Defendants complied with the requirements
of Paragraphs 58 and 59, above. If Settling Defendants carry this
burden, the delay at issue shall be deemed not to be a violation by
Settling Defendants of the affected obligation of this Consent
Decree identified to EPA and the Court.
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XX. DISPUTE RESOLUTION
62. Unless otherwise expressly provided for in this Consent
Decree, the dispute resolution procedures of this Section shall be
the exclusive mechanism to resolve disputes arising under or with
respect to this Consent Decree. However, the procedures set forth
in this Section shall not apply to actions by the United States to
enforce obligations of the Settling Defendants that have not been
disputed in accordance with this Section.
63. Any dispute which arises under or with respect to this
Consent Decree shall in the first instance be the subject of
informal negotiations between the parties to the dispute. The
period for informal negotiations shall not exceed 20 days from the
time the dispute arises, unless it is modified by written agreement
of the parties to the dispute. The dispute shall be considered to
have arisen when one party sends the other parties a written Notice
of Dispute.
64. a. In the event that the parties cannot resolve a
dispute by informal negotiations under the preceding Paragraph,
then the position advanced by EPA shall be considered binding
unless, within 10 days after the conclusion of the informal
negotiation period, Settling Defendants invoke the formal dispute
resolution procedures of this Section by serving on the United
States [and the State] a written Statement of Position on the
matter in dispute, including, but not limited to, any factual data,
analysis or opinion supporting that position and any supporting
documentation relied upon by the Settling Defendants. The
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Statement of Position shall specify the Settling Defendants'
position as to whether formal dispute resolution should proceed
under paragraph 65 or 66.
b. Within fourteen (14) days after receipt of Settling
Defendants' Statement of Position, EPA will serve on Settling
Defendants its Statement of Position, including, but not limited
to, any factual data, analysis, or opinion supporting that position
and all supporting documentation relied upon by EPA. EPA's
Statement of Position shall include a statement as to whether
formal dispute resolution should proceed under Paragraph 65 or 66.
c. If there is disagreement between EPA and the Settling
Defendants as to whether dispute resolution should proceed under
Paragraph 65 or 66, the parties to the dispute shall follow the
procedures set forth in the paragraph determined by EPA to be
applicable. However, if the Settling Defendants ultimately appeal
to the court to resolve the dispute, the Court shall determine
which paragraph is applicable in accordance with the standards of
applicability set forth in Paragraphs 65 and 66.
65. Formal dispute resolution for disputes pertaining to the
selection or adequacy of any response action and all other disputes
that are accorded review on the administrative record under
applicable principles of administrative law shall be conducted
pursuant to the procedures set forth in this Paragraph. For
purposes of this Paragraph, the adequacy of any response action
includes, without limitation: (1) the adequacy or appropriateness
of plans, procedures to implement plans, or any other items
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requiring approval by EPA under this Consent Decree; and (2) the
adequacy of the performance of response actions taken pursuant to
this Consent Decree. Nothing in this Consent Decree shall be
construed to allow any dispute by Settling Defendants regarding the
validity of the ROD'S provisions.
a. An administrative record of the dispute shall be
maintained by EPA and shall contain all statements of position,
including supporting documentation, submitted pursuant to this
Paragraph. Where appropriate, EPA may allow submission of
supplemental statements of position by the parties to the dispute.
b. The Director of the Waste Management Division, EPA
Region , will issue a final administrative decision resolving the
dispute based on the administrative record described in Paragraph
65.a. This decision shall be binding upon the Settling Defendants,
subject only to the right to seek judicial review pursuant to
Paragraph 65.c. and d.
c. Any administrative decision made by EPA pursuant to
Paragraph 65.b. shall be reviewable by this Court, provided that a
notice of judicial appeal is filed by the Settling Defendants with
the Court and served on all Parties within 10 days of receipt of
EPA's decision. The notice of judicial appeal shall include a
description of the matter in dispute, the efforts made by the
parties to resolve it, the relief requested, and the schedule, if
any, within which the dispute must be resolved to ensure orderly
implementation of this Consent Decree. The United States may f le
a response to Settling Defendants' notice of judicial appeal.
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d. In proceedings on any dispute governed by this
Paragraph, Settling Defendants shall have the burden of
demonstrating that the decision of the Waste Management Division
Director is arbitrary and capricious or otherwise not in accordance
with law. Judicial review of EPA's decision shall be on the
administrative record compiled pursuant to Paragraphs 65.a.
66. Formal dispute resolution for disputes that neither
pertain to the selection or adequacy of any response action nor are
otherwise accorded review on the administrative record under
applicable principles of administrative law, shall be governed by
this Paragraph.
a. Following receipt of Settling Defendants' Statement
of Position submitted pursuant to Paragraph 64, the Director of the
Waste Management Division, EPA Region , will issue a final
decision resolving the dispute. The Waste Management Division
Director's decision shall be binding on the Settling Defendants
unless, within 10 days of receipt of the decision, the Settling
Defendants file with the Court and serve on the parties a notice of
judicial appeal setting forth the matter in dispute, the efforts
made by the parties to resolve it, the relief requested, and the
schedule, if any, within which the dispute must be resolved to
ensure orderly implementation of the Consent Decree. The United
States may file a response to Settling Defendants' notice of
judicial appeal.
b. Notwithstanding Paragraph M of Section I
(Background) of this Consent Decree, judicial review of any dispute
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governed by this Paragraph shall be governed by applicable
provisions of law.
67. The invocation of formal dispute resolution procedures
under this Section shall not extend, postpone or affect in any way
any obligation of the Settling Defendants under this Consent Decree
not directly in dispute, unless EPA or the Court agrees otherwise.
Stipulated penalties with respect to the disputed matter shall
continue to accrue but payment shall be stayed pending resolution
of the dispute as provided in Paragraph 76. Notwithstanding the
stay of payment, stipulated penalties shall accrue from the first
day of noncompliance with any applicable provision of this Consent
Decree. In the event that the Settling Defendant does not prevail
on the disputed issue, stipulated penalties shall be assessed and
paid as provided in Section XXI (Stipulated Penalties).
XXI. STIPULATED PENALTIES
68. Settling Defendants shall be liable for stipulated
penalties in the amounts set forth in Paragraphs 69 and 70 to the
United States [and the State] for failure to comply with the
requirements of this Consent Decree specified below, unless excused
under Section XIX (Force Majeure). "Compliance" by Settling
Defendants shall include completion of the activities under this
Consent Decree or any work plan or other plan approved under this
Consent Decree identified below in accordance with all applicable
requirements of law, this Consent Decree, the SOW, and any plans or
other documents approved by EPA pursuant to this Consent Decree and
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within the specified time schedules established by and approved
under this Consent Decree.
[69. a. The following stipulated penalties shall be payable
per violation per day to the United States [and the State] for any
noncompliance identified in Subparagraph b:
Penalty Per Violation Period of Noncompliance
Per Day
b. [List violations or compliance milestones]
70. The following stipulated penalties shall be payable per
violation per day to the United States [and the State] for failure
to submit timely or adequate reports [or other written documents]
pursuant to Paragraphs :
Penalty Per Violation Period of Noncompliance
Per Day
71. In the event that EPA assumes performance of a portion or
all of the Work pursuant to Paragraph 84 of Section XXII (Covenants
Not to Sue by Plaintiffs), Settling Defendants shall be liable for
a stipulated penalty in the amount of .]
72. All penalties shall begin to accrue on the day after the
complete performance is due or the day a violation occurs, and
shall continue to accrue through the final day of the correction of
the noncompliance or completion'of the activity. Nothing herein
shall prevent the simultaneous accrual of separate penalties for
separate violations of this Consent Decree.
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73. Following EPA's determination that Settling Defendants
have failed to comply with a requirement of this Consent Decree,
EPA may give Settling Defendants written notification of the same
and describe the noncompliance. EPA [and the State] may send the
Settling Defendants a written demand for the payment of the
penalties. However, penalties shall accrue as provided in the
prece'ding Paragraph regardless of whether EPA has notified the
Settling Defendants of a violation.
74. All penalties owed to the United States [and the State]
under this section shall be due and payable within 30 days of the
Settling Defendants' receipt from EPA of a demand for payment of
the penalties, unless Settling Defendants invoke the Dispute
Resolution procedures under Section XX (Dispute Resolution). All
payments under this Section shall be paid by certified check made
payable to "EPA Hazardous Substances Superfund," shall be mailed to
[Regional Lockbox number and address], and shall reference CERCLA
Number [Site/Spill ID Number] and DOJ Case Number .
Copies of check(s) paid pursuant to this Section, and any
accompanying transmittal letter(s), shall be sent to the United
States as provided in Section XXVII (Notices and Submissions) .
75. The payment of penalties shall not alter in any way
Settling Defendants' obligation to complete the performance of the
Work required under this Consent Decree.
76. Penalties shall continue to accrue as provided in
Paragraph 72 during any dispute resolution period, but need not be
paid until the following:
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a. If the dispute is resolved by agreement or by a
decision of EPA that is not appealed to this Court, accrued
penalties determined to be owing shall be paid.to EPA [and the
State] within 15 days of the agreement or the receipt of EPA's
decision or order;
b. If the dispute is appealed to this Court and the
United States prevails in whole or in part, Settling Defendants
shall pay all accrued penalties determined by the Court to be owed
to EPA [and the State] within 60 days of receipt of the Court's
decision or order, except as provided in Subparagraph c below;
c. If the District Court's decision is appealed by any
Party, Settling Defendants shall pay all accrued penalties
determined by the District Court to be owing to the United States
[or the State] into an interest-bearing escrow account within 60
days of receipt of the Court's decision or order. Penalties shall
be paid into this account as they continue to accrue, at least
every 60 days. Within 15 days of receipt of the final appellate
court decision, the escrow agent shall pay the balance of the
account to EPA [and the State] or to Settling Defendants to the
extent that they prevail.
77. a. If Settling Defendants fail to pay stipulated
penalties when due, the United States [or the State] may institute
proceedings to collect the penalties, as well as interest.
Settling Defendants shall pay interest on the unpaid balance, which
shall begin to accrue on the date of demand made pursuant to
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Paragraph 74 at the rate established pursuant to Section 107(a) of
CERCLA, 42 U.S.C. $ 9607.
b. Nothing in this Consent Decree shall be construed as
prohibiting, altering, or in any way limiting the ability of the
United States [or the State] to seek any other remedies or
sanctions available by virtue of Settling Defendants' violation of
this Decree or of the statutes and regulations upon which it is
based, including, but not limited to, penalties pursuant to Section
122(1) of CERCLA.
78. No payments made under this Section shall be tax
deductible for Federal [or State] tax purposes.
XXII. COVENANTS NOT TO SUE BY PLAINTIFFS
[FOR OPERABLE UNIT CONSENT DECREES OR OTHER SITUATIONS IN WHICH THE
UNITED STATES HAS DECIDED NOT TO GRANT A FULL COVENANT NOT TO SUE:]
79. In consideration of the actions that will be performed
and the payments that will be made by the Settling Defendants under
the terms of the Consent Decree, and except as specifically
provided in Paragraphs 80, 81, and 83 of this Section, the United
States covenants not to sue or to take administrative action
against Settling Defendants pursuant to Sections 106 and 107(a) of
CERCLA [and Section 7003 of RCRA] for performance of the Work [and
for recovery of Past Response Costs and Future Response Costs] .
These covenants not to sue shall take effect upon the receipt by
EPA of the payments required by Paragraph 51 of Section XVII
(Reimbursement of Response Costs). These covenants not to sue are
conditioned upon the complete and satisfactory performance by
Settling Defendants of their obligations under this Consent Decree.
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These covenants not to sue extend only to the Settling Defendants
and do not extend to any other person.
[FOR CONSENT DECREES IN WHICH THE UNITED STATES HAS DECIDED TO
GRANT A FULL COVENANT NOT TO SUE: ]
79. In consideration of the actions that will be performed
and the payments that will be made by the Settling Defendants under
the terms of the Consent Decree, and except as specifically
provided in Paragraphs 80, 8.'., and 83 of this Section, the United
States covenants not to sue or to take administrative action
against Settling Defendants pursuant to Sections 106 and 107(a) of
CERCLA [and Section 7003 of RCRAJ relating to the Site. Except
with respect to future liability, these covenants not to sue shall
take effect upon the receipt by EPA of the payments required by
Paragraph 51 of Section XVII (Reimbursement of Response Costs).
With respect to future liability, these covenants not to sue shall
take effect upon Certification of Completion of Remedial Action by
EPA pursuant to Paragraph 47.b of Section XV (Certification of
Completion) . These covenants not to sue are conditioned upon the
complete and satisfactory performance by Settling Defendants of
their obligations under this Consent Decree. These covenants not
to sue extend only to the Settling Defendants and do not extend to
any other person.
80. United States* Pre-certification reservations.
Notwithstanding any other provision of this Consent Decree, the
United States reserves, and this Consent Decree is without
prejudice to, the right to institute proceedings in this action or
in a new action, or to issue an administrative order seeking to
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compel Settling Defendants (1) to perform further response actions
relating to the Site or (2) to reimburse the United States for
additional costs of response if, prior to certification of
completion of the Remedial Action:
(i) conditions at the Site, previously unknown to EPA,
are discovered, or
(ii) information, previously unknown to EPA, is received,
in whole or in part,
and these previously unknown conditions or information together
with any other relevant information indicates that the Remedial
Action is not protective of human health or the environment.
81. United States' Post-certification reservations.
Notwithstanding any other provision of this Consent Decree, the
United States reserves, and this Consent Decree is without
prejudice to, the right to institute proceedings in this action or
in a new action, or to issue an administrative order seeking to
compel Settling Defendants (1) to perform further response actions
relating to the Site or (2) to reimburse the United States for
additional costs of response if, subsequent to certification of
completion of the Remedial Action:
(i) conditions at the site, previously unknown to EPA,
are discovered, or
(ii) information, previously unknown to EPA, is received,
In whole or in part,
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and these previously unknown conditions or this information
together with other relevant information indicate that the Remedial '
Action is not protective of human health or the environment.
82. For purposes of Paragraph 80, the. information and the
conditions known to EPA shall include only that information and
those conditions set forth in the Record of Decision for the Site
and the administrative record supporting the Record of Decision.
For purposes of Paragraph 81, the information and the conditions
known to EPA shall include only that information and those
conditions set forth in the Record of Decision, the administrative
record supporting the Record of Decision, and any information
received by EPA pursuant to the requirements of this Consent Decree
prior to Certification of Completion of the Remedial Action.
83. General reservations of rights. The covenants not to sue
set forth above do not pertain to any matters other than those
expressly specified in Paragraph 79. The United States [and the
State] reserve[s], and this Consent Decree is without prejudice to,
all rights against Settling Defendants with respect to all other
matters, including but not limited to, the following:
(1) claims based on a failure by Settling Defendants
to meet a requirement of this Consent Decree;
(2) liability arising from the past, present, or future
disposal, release, or threat of release of Waste Materials
outside of the Site;
(3) liability for damages for injury to, destruction
of, or loss of natural resources;
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(4) liability for response costs that have been or may
be incurred by [insert the name of all federal agencies which
are trustees for natural resources and which have, or may in
the future, spend funds relating to the Site];
(5) criminal liability;
(6) liability for violations of federal or state law
which occur during or after implementation of the Remedial
Action; and
[(7) previously incurred costs of response above the
amounts reimbursed pursuant to Paragraph 51;]
[(8) liability for additional operable units at the Site
or the final response action;]
[(9) liability for costs that the United States will
incur related to the Site but are not within the definition of
Future Response Costs.]
84. In the event EPA determines that Settling Defendants have
failed to implement any provisions of the Work in an adequate or
timely manner, EPA may perform any and all portions of the Work as
EPA determines necessary. Settling Defendants may invoke the
procedures set forth in Section XX (Dispute Resolution) to dispute
EPA's determination that the Settling Defendants failed to
implement a provision of the Work in an adequate or timely manner
as arbitrary and capricious or otherwise not in accordance with
law. Such dispute shall be resolved on the administrative record.
Costs incurred by the United States in performing the Work pursuant.
to this Paragraph shall be considered Future Response Costs that
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Settling Defendants shall pay pursuant to Section XVII
(Reimbursement of Response Costs).
85. Notwithstanding any other provision of this Consent
Decree, the United States [and the State] retain[s] all authority
and reserve[s] all rights to take any and all response actions
authorized by lav.
[If the State is a Co-plairtiff, insert the State's Covenant not to
Sue the Settling Defendants and reservation of rights.]
XXIII. COVENANTS BY SETTLING DEFENDANTS
86. Settling Defendants hereby covenant not to sue and agree
not to assert any claims or causes of action against the United
States [or the State] with respect to the Site or this Consent
Decree, including, but not limited to, any direct or indirect claim
for reimbursement from the Hazardous Substance Superfund
(established pursuant to the Internal Revenue Code, 26 U.S.C.
5 9507) through CERCLA Sections 106(b)(2), 111, 112, 113 or any
other provision of law, [any claim against the United States,
including any department, agency or instrumentality of the United
States under CERCLA Sections 107 or 113 related to the Site,] or
any claims arising out of response activities at the Site.
However, the Settling Defendants reserve, and this Consent Decree
is without prejudice to, actions against the United States based on
negligent actions taken directly by the United States (not
including oversight or approval of the Settling Defendants plans or
activities) that are brought pursuant to any statute other than
CERCLA and for which the waiver of sovereign immunity is found in a
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statute other than CERCLA. Nothing in this Consent Decree shall
be deemed to constitute preauthorization of a claim within the
meaning of Section 111 of CERCLA, 42 U.S.C. § 9611, or 40 C.F.R.
S 300.700(d).
XXIV. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION
87. Nothing in this Consent Decree shall be construed to
create any rights in, or grant any cause of action to, any person
not a party to this Consent Decree. The preceding sentence shall
not be construed to waive or nullify any rights that any person not
a signatory to this decree may have under applicable law. Each of
the Parties expressly reserves any and all rights (including, but
not limited to, any right to contribution), defenses, claims,
demands, and causes of action which each party may have with
respect to any matter, transaction, or occurrence relating in any
way to the Site against any person not a party hereto.
[88. With regard to claims for contribution against Settling
Defendants for matters addressed in this Consent Decree, the
Parties hereto agree that the Settling Defendants are entitled to
such protection from contribution actions or claims as is provided
by CERCLA Section 113(f) (2), 42 U.S.C. $ 9613(f)(2).J
89. Th« Settling Defendants agree that with respect to any
suit or claim for contribution brought by them for matters related
to this Consent Decree they will notify the United States [and the
State] in writing no later than 60 days prior to the initiation of
such suit or claim.
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90. The Settling Defendants also agree that with respect to
any suit or claim for contribution brought against them for matters
related to this Consent Decree they will notify in writing the
United States [and the State] within 10 days of service of the
complaint on them. In addition, Settling Defendants shall notify
the United States [and the State] within 10 days of service or
receipt of any Motion for Summary Judgment and within 10 days of
receipt of any order from a court setting a case for trial.
91. In any subsequent administrative or judicial proceeding
initiated by the United States [or the State] for injunctive
relief, recovery of response costs, or other appropriate relief
relating to the Site, Settling Defendant[s] shall not assert, and
may not maintain, any defense or claim based upon the principles of
waiver, res •iudicata. collateral estoppel, issue preclusion, claim-
splitting, or other defenses based upon any contention that the
claims raised by the United States [or the State] in the subsequent
proceeding were or should have been brought in the instant case;
provided, however, that nothing in this Paragraph affects the
enforceability of the covenants not to sue set forth in Section
XXII (Covenants Not to Sue by Plaintiffs).
XXV. ACCESS TO INFORMATION
92. Settling Defendants shall provide to EPA [and the State],
upon request, copies of all documents and information within their
possession or control or tha,t of their contractors or agents
relating to activities at the Site or to the implementation of this
Consent Decree, including, but not limited to, sampling, analysis,
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chain of custody records, manifests, trucking logs, receipts,
reports, sample traffic routing, correspondence, or other documents
or information related to the Work. Settling Defendants shall also
make available to EPA [and the State], for purposes of
investigation, information gathering, or testimony, their
employees, agents, or representatives with knowledge of relevant
facts concerning the performance of the Work.
93. a. Settling Defendants may assert business
confidentiality claims covering part or all of the documents or
information submitted to Plaintiffs under this Consent Decree to
the extent permitted by and in accordance with Section 104(e) (7) of
CERCLA, 42 U.S.C. S 9604(e)(7), and 40 C.F.R. § 2.203(b).
Documents or information determined to be confidential by EPA will
be afforded the protection specified in 40 C.F.R. Part 2, Subpart
B. If no claim of confidentiality accompanies documents or
information when they are submitted to EPA [and the State], or if
EPA has notified Settling Defendants that the documents or
information are not confidential under the standards of Section
104(e)(7) of CERCLA, the public may be given access to such
documents or information without further notice to Settling
Defendants.
b. The Settling Defendants may assert that certain documents,
records and other information are privileged under the attorney-
client privilege or any other privilege recognized by federal law.
If the Settling Defendants assert such a privilege in lieu of
providing documents, they shall provide the Plaintiffs with the
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following: (1) the title of the document, record, or information;
(2) the date of the document, record, or information; (3) the name
and title of the author of the document, record, or information;
(4) the name and title of each addressee and recipient; (5) a
description of the contents of the document, record, or
information: and (6) the privilege asserted by Settling Defendants.
However, no documents, reports or other information created or
generated pursuant to the requirements of the Consent Decree shall
be withheld on the grounds that they are privileged.
94. No claim of confidentiality shall be made with respect to
any data, including, but not limited to, all sampling, analytical,
monitoring, hydrogeologic, scientific, chemical, or engineering
data, or any other documents or information evidencing conditions
at or around the Site.
XXVI. RETENTION OF RECORDS
95. Until 10 years after the Settling Defendants' receipt of
EPA's notification pursuant to Paragraph 48.b of Section XV
(Certification of Completion of the Work), each Settling Defendant
shall preserve and retain all records and documents now in its
possession or control or which come into its possession or control
that relate in any manner to the performance of the Work or
liability of any person for response actions conducted and to be
conducted at the Site, regardless of any corporate retention policy
to the contrary. Until 10 years after the Settling Defendants'
receipt of EPA's notification pursuant to Paragraph 48.b of Section
XV (Certification of Completion), Settling Defendants shall also
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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.
96. At the conclusion of this document retention period,
Settling Defendants shall notify the United States [and the State]
at least 90 days prior to the destruction of any such records or
documents, and, upon request by the United States [or the State],
Settling Defendants shall deliver any such records or documents to
EPA [or the State]. The Settling Defendants may assert that
certain documents, records and other information are privileged
under the attorney-client privilege or any other privilege
recognized by federal law. If the Settling Defendants assert such
a privilege, they shall provide the Plaintiffs with the following:
(1) the title of the document, record, or information; (2) the date
of the document, record, or information; (3) the name and title of
the author of the document, record, or information; (4) the name
and title of each addressee and recipient; (5) a description of the
subject of the document, record, or information: and (6) the
privilege asserted by Settling Defendants. However, no documents,
reports or other information created or generated pursuant to the
requirements of the Consent Decree shall be withheld on the grounds
that they ar« privileged.
97. Each Settling Defendant hereby certifies, individually,
that it has not altered, mutilated, discarded, destroyed or
otherwise disposed of any records, documents or other information
relating to its potential liability regarding the Site since
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notification of potential liability by the United States or the
State or the filing of suit against it regarding the Site and that
it has fully complied with any and all EPA requests for information
pursuant to Section 104(e) and 122(e) of CERCLA and Section 3007 of
RCRA.
XXVII. NOTICES AND SUBMISSIONS
98. Whenever, under the terms of this Consent Decree, written
notice is required to be given or a report or other document is.
required to be sent by one party to another, it shall be directed
to the individuals at the addresses specified below, unless those
individuals or their successors give notice of a change to the
other parties in writing. All notices and submissions shall be
considered effective upon receipt, unless otherwise provided.
Written notice as specified herein shall constitute complete
satisfaction of any written notice requirement of the Consent
Decree with respect to the United States, EPA, [the State,] and the
Settling Defendants, respectively.
As to the United States;
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
Re: DJ #
and
Director, Waste Management Division
United States Environmental Protection Agency
Region __
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AS to_EPA_L
[Name]
EPA Project Coordinator
United States Environmental Protection Agency
Region
fAs to the State:
[Name]
State Project Coordinator
[Address]
As to the Settling Defendants:
[Name]
Settling Defendants' Project Coordinator
[Address]
XXVIII. EFFECTIVE DATE
99. The effective date of this Consent Decree shall be the
date upon which this Consent Decree is entered by the Court, except
as otherwise provided herein.
XXIX. RETENTION OF JURISDICTION
100. This Court retains jurisdiction over both the subject
matter of this Consent Decree and the Settling Defendants for the
duration of the performance of the terms and provisions of this
Consent Decree for the purpose of enabling any of the Parties to
apply to the Court at any time for such further order, direction,
and relief as may be necessary or appropriate for the construction
or modification of this Consent Decree, or to effectuate or enforce
compliance with its terms, or to resolve disputes in accordance
with Section XX (Dispute Resolution) hereof.
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XXX. APPENDICES
101. The following appendices are attached to and
incorporated into this Consent Decree:
"Appendix A" is the ROD.
"Appendix B" is the SOW.
"Appendix C" is the description and/or map of the Site.
"Appendix D" is the complete list of the Settling Defendants.
["Appendix E" is the complete list of the Owner Settling
Defendants.]
XXXI. COMMUNITY RELATIONS
102. Settling Defendants shall propose to EPA [and the State]
their participation in the community relations plan to be developed
by EPA. EPA will determine the appropriate role for the Settling
Defendants under the Plan. Settling Defendants shall also
cooperate with EPA [and the State] in providing information
regarding the Work to the public. As requested by EPA [or the
State], Settling Defendants shall participate in the preparation of
such information for dissemination to the public and in public
meetings which may be held or sponsored by EPA [or the State] to
explain activities at or relating to the Site.
XXXII. MODIFICATION
103. Schedules specified in this Consent Decree for
completion of the Work may be modified by agreement of EPA and the
Settling Defendants. All such modifications shall be made in
writing.
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104. No material modifications shall be made to the SOW
without written notification to and written approval of the United
States, Settling Defendants, and the Court. Prior to providing its
approval to any modification, the United States will provide the
State with a reasonable opportunity to review and comment on the
proposed modification. Modifications to the SOW that do not
materially alter that document may be made by written agreement
between EPA, after providing the State with a reasonable
opportunity to review and comment on the proposed modification, and
the Settling Defendants.
105. Nothing in this Decree shall be deemed to alter the
Court's power to enforce, supervise or approve modifications to
this Consent Decree.
XXXIII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
106. This Consent Decree shall be lodged with the Court for a
period of not less than thirty (30) days for public notice and
comment in accordance with Section 122(d)(2) of CERCLA, 42 U.S.C.
S 9622(d)(2), and 28 C.F.R. S 50.7. The United States reserves the
right to withdraw or withhold its consent if the comments regarding
the Consent Decree disclose facts or considerations which indicate
that the Consent Decree is inappropriate, improper, or inadequate.
Settling Defendants consent to the entry of this Consent Decree
without further notice.
107. If for any reason the Court should decline to approve
this Consent Decree in the form presented, this agreement is
voidable at the sole discretion of any party and the terms of the
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agreement may not be used as evidence in any litigation between the
Parties.
XXXIV. SIGNATORIES/SERVICE
108. Each undersigned representative of a Settling Defendant
to this Consent Decree and the Assistant Attorney General for
Environment and Natural Resources of the Department of Justice
certifies that he or she is fully authorized to enter into the
terms and conditions of this Consent Decree and to execute and
legally bind such party to this document.
109. Each Settling Defendant hereby agrees not to oppose
entry of this Consent Decree by this Court or to challenge any
provision of this Consent Decree unless the United States has
notified the Settling Defendants in writing that it no longer
supports entry of the Consent Decree.
110. Each Settling Defendant shall identify, on the attached
signature page, the name, address and telephone number of an agent
who is authorized to accept service of process by mail on behalf of
that party with respect to all matters arising under or relating to
this Consent Decree. Settling Defendants hereby agree to accept
service in that manner and to waive the formal service requirements
set forth in Rule 4 of the Federal Rules of Civil Procedure and any
applicable local rules of this Court, including, but not limited
to, service of a summons.
SO ORDERED THIS DAY OF , 19 .
United States District Judge
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THE UNDERSIGNED PARTIES enter into this Consent Decree in the
matter of United States v. , relating
to the Superfund Site.
FOR THE UNITED STATES OF AMERICA
Date:
[Name]
Assistant Attorney General
Environment and Natural Resources
Division
U.S. Department of Justice
Washington, D.C. 20530
[Name]
Environmental Enforcement Section
Environment and Natural Resources
Division
U.S. Department of Justice
Washington, D.C. 20530
[Name]
Assistant United States Attorney
District of
U.S. Department of Justice
[Address]
[Name]
Assistant Administrator for
Enforcement
U.S. Environmental Protection
Agency
401 M Street, S.W.
Washington, D.C. 20460
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[Name]
Office of Enforcement
U.S. Environmental Protection
Agency
401 M Street, S.W.
Washington, D.C. 20460
[Name]
Regional Administrator, Region
U.S. Environmental Protection
Agency
[Address]
[Name]
Assistant Regional Counsel
U.S. Environmental Protection
Agency
Region
[Address]
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United States v.
Consent Decree Signature Page
FOR THE STATE OF
Date:
[Name]
[Title]
[Address]
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THE UNDERSIGNED PARTY enters into this Consent Decree in the
matter of United States v. . relating
to the Superfund Site.
FOR COMPANY, INC. *./
Date:
[Name — Please Type]
[Title — Please Type]
[Address — Please Type]
Agent Authorized to Accept Service on Behalf of Above-signed
Party:
Name: rPlease Tvpel
Title:
Address:
Tel. Number:
I/ A separate signature page must be signed by each corporation,
individual or other legal entity that is settling with the
United States.
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