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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
JAN 3 0 1990
OSWER Directive Number 9835.3 - 1A
MEMORANDUM
SUBJECT: Model Administrative Order on Consent for CERCLA
Remedial Investigation/Feasibility Study
FROM: Bruce M. Diamond, Director^
Office of Waste Programs Enforcement
Glenn L. Unterberger ..^ "n.
Associate Enforcement Counsel for Waste
Office of Enforcement and Compliance Monitoring
TO: Addressees
Attached is a model Administrative Order on Consent to be
used for Remedial Investigations and Feasibility Studies (RI/FSs)
conducted by potentially responsible parties under CERCLA. This
model should be used in conjunction with a document transmitted
to the Regions on June 2, 1989, entitled "Model Statement of Work
for a Remedial Investigation and Feasibility Study Conducted by
Potentially Responsible Parties" (from Bruce Diamond, OWPE, OSWER
Directive #9835.8) .
The purpose of this model order is to improve the quality of
RI/FSs conducted by potentially responsible parties by laying out
in detail exactly what is expected during the RI/FS process for a
quality project. It should also promote consistency among
Regions aaA cut down on the time involved in preparing for
settlement ^negotiations. It is consistent with the "Guidance for
Conducting Remedial Investigations and Feasibility Studies Under
CERCLA" (October 1988, OSWER Directive 19355.3-01), and other
relevant guidance documents and regulations.
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Any questions or additional insights you have should be
directed to Deborah Hartman of OWPE at 382-2034. Helen Kennedy
of OECM is also available to provide further advice at 382-3082,
Attachment
Addressees:
Waste Management Division Directors, Regions I-X
Regional Counsels, Regions I-X
CERCLA Enforcement Branch Chiefs, Regions I-X
Regional Counsel, CERCLA Branch Chiefs, Regions I-X
Henry L. Longest, OERR
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OSWER Directive Number 9835.3-1A
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION [#]
IN THE MATTER OF: )
)
[SITE NAME] [SITE NUMBER] )
)
[COMPANY NAME )
Address] )
)
RESPONDENTS] )
)
)
Proceeding Under Sections 104, 122(a), ) U.S. EPA Docket No.
and 122(d)(3) of the Comprehensive )
Environmental Response, Compensation, )
and Liability Act as amended )
(42 U.S.C §§ 9604, 9622(a), )
9622(d)(3)). )
ADMINISTRATIVE ORDER ON CONSENT
FOR REMEDIAL INVESTIGATION/FEASIBILITY STUDY
Operable Unit No.
I. INTRODUCTION
1. This Administrative Order on Consent (Consent Order) is
entered into voluntarily by the United States Environmental
Protection Agency (EPA) and [name of Respondent(s)]
(Respondent(s)). The Consent Order concerns the preparation of,
performance of, and reimbursement for all costs incurred by EPA
in connection with a remedial investigation and feasibility study
(RI/FS) for the [operable unit consisting of] at the [site name]
located in [site location] ("site") [as well as past response
costs].
II. JURISDICTION
2. This Consent Order is issued under the authority vested
in the President of the United States by sections 104, 122(a) and
122(d)(3) of the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended, 42 U.S.C. §§ 9604,
9622(a), 9622(d)(3) (CERCLA). This authority was delegated to
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OSWER Directive Number 9835.3-1A
the Administrator of EPA on January 23, 1987, by Executive Order
12580, 52 Fed. Reg. 2926 (1987), and further delegated to
Regional Administrators on September 13, 1987, by EPA Delegation
No. 14-14-C. [This authority has been redelegated by the
Regional Administrator to .]
3. The Respondent(s) agrees to undertake all actions
required by the terms and conditions of this Consent Order. In
any action by EPA or the United States to enforce the terms of
this Consent Order, Respondent(s) consents to and agrees not to
contest the authority or jurisdiction of the Regional
Administrator to issue or enforce this Consent Order, and agrees
not to contest the validity of this Order or its terms.
III. PARTIES BOUND
4. This Consent Order shall apply to and be binding upon
EPA and shall be binding upon the Respondent(s), its agents,
successors, assigns, officers, directors and principals.
Respondent(s) is jointly and severally responsible for carrying
out all actions required of it by this Consent Order. The
signatories to this Consent Order certify that they are
authorized to execute and legally bind the parties they represent
to this Consent Order. No change in the ownership or corporate
status of the Respondent(s) or of the facility or site shall
alter Respondent(s)' responsibilities under this Consent Order.
5. The Respondent(s) shall provide a copy of this Consent
Order to any subsequent owners or successors before ownership
rights or stock or assets in a corporate acquisition are
transferred. Respondent(s) shall provide a copy of this Consent
Order to all contractors, subcontractors, laboratories, and
consultants which are retained to conduct any work performed
under this Consent Order, within 14 days after the effective date
of this Consent Order or the date of retaining their services,
whichever is later. Respondent(s) shall condition any such
contracts upon satisfactory compliance with this Consent Order.
Notwithstanding the terms of any contract, Respondent(s) is
responsible for compliance with this Consent Order and for
ensuring that its subsidiaries, employees, contractors,
consultant*, subcontractors, agents and attorneys comply with
this Consent Order.
IV. STATEMENT OF PURPOSE
6. In entering into this Consent Order, the objectives of
EPA and the Respondent(s) are: (a) to determine the nature and
extent of contamination and any threat to the public health,
welfare, or the environment caused by the release or threatened
release of hazardous substances, pollutants or contaminants at or
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OSWER Directive Number 9835.3-lA
from the site or facility, by conducting a remedial
investigation; (b) to determine and evaluate alternatives for
remedial action (if any) to prevent, mitigate or otherwise
respond to or remedy any release or threatened release of
hazardous substances, pollutants, or contaminants at or from the
site or facility, by conducting a feasibility study; and (c) to
recover response and oversight costs incurred by EPA with respect
to this Consent Order.
7. The activities conducted under this Consent Order are
subject to approval by EPA and shall provide all appropriate
necessary information for the RI/FS, and for a record of decision
that is consistent with CERCLA and the National Contingency Plan
(NCP), 40 C.F.R. Part 300. The activities conducted under this
Consent Order shall be conducted in compliance with all
applicable EPA guidances, policies, and procedures.
V. FINDINGS OF FACT
[Note: Provide enough information in this section for the
Order to stand on its own. The findings of fact need to
establish and justify the conclusions of law set forth in
the Order.]
8. [Identify the site with the name, location, and
description, including geography and brief site history.]
9. [Provide information that there are hazardous
substances at the site by listing the specific chemicals found at
the site, and their locations, concentrations and quantities
where known, including description of studies conducted to find
the hazardous substances.]
10. [Describe actual and/or potential release and
contaminant migration pathways, making clear that these are not
exclusive.]
11. [Briefly note some health/environmental effects of some
maj or contaminants.]
12. [State that the site is on the [proposed] National
Priorities List. Reference section 105 of CERCLA and Federal
Register in which notice of listing appeared.]
13. [Identify each Respondent, i.e., name/business.]
14. [For each Respondent, state the connection between the
Respondent and the site, e.g., owner or operator of a hazardous
waste site, or person who arranged for disposal or treatment of,
or transporter of hazardous substances found at the site.]
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OSWER Directive Number 9835.3-1A
15. [Identify prior response and enforcement actions, if
any, taken at the site.]
VI. CONCLUSIONS OF LAW AND DETERMINATIONS
16. The site is a "facility" as defined in section 101(9)
of CERCLA, 42 U.S.C. §9601(9).
17. Wastes and constituents thereof [at the site, sent to
the site, disposed of at the site, and/or transported to the
site] identified in paragraph 9 are "hazardous substances" as
defined in section 101(14) of CERCLA, 42 U.S.C. §9601(14), or
constitute "any pollutant or contaminant" that may present an
imminent and substantial danger to public health or welfare under
section 104(a)(1) of CERCLA.
18. The presence of hazardous substances at the site or the
past, present or potential migration of hazardous substances
currently located at or emanating from the site, constitute
actual and/or threatened "releases" as defined in section 101(22)'
of CERCLA, 42 U.S.C. §9601(22).
19. Respondent(s) is a "person" as defined in section
101(21) Of CERCLA, 42 U.S.C. §9601(21).
20. Respondent(s) is a responsible party under sections
104, 107 and 122 of CERCLA, 42 U.S.C. §§ 9604, 9607 and 9622.
21. The actions required by this Consent Order are
necessary to protect the public health or welfare or the
environment, are in the public interest, 42 U.S.C. §9622(a), are
consistent with CERCLA and the NCP, 42 U.S.C. §§ 9604(a)(lj,
9622(a), and will expedite effective remedial action and minimize
litigation, 42 U.S.C. §9622(a).
VII. NOTICE
22. By providing a copy of this Consent Order to the state,
EPA is notifying the state of [name of state] that this Order is
being issued and that EPA is the lead agency for coordinating,
overseeing,, and enforcing the response action required by the
Order.
VIII. WORK TO BE PERFORMED
23. All work performed under this Consent Order shall be
under the direction and supervision of qualified personnel.
Within 30 days of the effective date of this Order, and before
the work outlined below begins, the Respondent(s) shall notify
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OSWER Directive Number 9835.3-1A
EPA in writing of the names, titles, and qualifications of the
personnel, including contractors, subcontractors, consultants and
laboratories to be used in carrying out such work. The
qualifications of the persons undertaking the work for
Respondent(s) shall be subject to EPA's review, for verification
that such persons meet minimum technical background and
experience requirements. This Order is contingent on
Respondent(s)' demonstration to EPA's satisfaction that
Respondent(s) is qualified to perform properly and promptly the
actions set forth in this Consent Order. If EPA disapproves in
writing of any person(s)' technical qualifications, Respondent(s)
shall notify EPA of the identity and qualifications of the
replacement(s) within 30 days of the written notice. If EPA
subsequently disapproves of the replacement(s), EPA reserves the
right to terminate this Order and to conduct a complete RI/FS,
and to seek reimbursement for costs and penalties from
Respondent(s). During the course of the RI/FS, Respondent(s)
shall notify EPA in writing of any changes or additions in the
personnel used to carry out such work, providing their names,
titles, and qualifications. EPA shall have the same right to
approve changes and additions to personnel as it has hereunder
regarding the initial notification.
24. Respondent(s) shall conduct activities and submit
deliverables as provided by the attached RI/FS Statement of Work,
which is incorporated by reference, for the development of the
RI/FS. All such work shall be conducted in accordance with
CERCLA, the NCP, and EPA guidance including, but not limited to,
the "Interim Final Guidance for Conducting Remedial
Investigations and Feasibility Studies under CERCLA" (OSWER
Directive # 9355.3-01), guidances referenced therein, and
guidances referenced in the Statement of Work, as may be amended
or modified by EPA. The general activities that Respondent(s) is
required to perform are identified below, followed by a list of
deliverables. The tasks that Respondent(s) must perform are
described more fully in the Statement of Work and guidances. The
activities and deliverables identified below shall be developed
as provisions in the work plan and sampling and analysis plan,
and shall be submitted to EPA as provided. All work performed
under this Consent Order shall be in accordance with the
schedules herein, and in full accordance with the standards,
specifications, and other requirements of the work plan and
sampling and analysis plan, as initially approved or modified by
EPA, and as may be amended or modified by EPA from time to time.
For the purposes of this Order, day means calendar day unless
otherwise noted in the Order.
A. Task I; Scoping. EPA determines the site-specific objectives
of the RI/FS and devises a general management approach for the
site, as stated in the attached Statement of Work. Respondent(s)
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OSWER Directive Number 9835.3-1A
shall conduct the remainder of scoping activities as described in
the attached Statement of Work and referenced guidances. At the
conclusion of the project planning phase, Respondent(s) shall
provide EPA with the following deliverables:
1. RI/FS Work Plan. Within days of the effective date
of this Order, Respondent(s) shall submit to EPA a complete
RI/FS work plan. If EPA disapproves of or requires
revisions to the RI/FS work plan, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised work
plan which is responsive to the directions in all EPA
comments, within days of receiving EPA's comments.
2. Sampling and Analysis Plan. Within days of the
effective date of this Order, Respondent(s) shall submit to
EPA the sampling and analysis plan. This plan shall consist
of a field sampling plan (FSP) and a quality assurance
project plan (QAPP), as described in the Statement of Work
and guidances. If EPA disapproves of or requires revisions
to the sampling and analysis plan, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised
sampling and analysis plan which is responsive to the
directions in all EPA comments, within days of receiving
EPA's comments.
3. Site Health and Safety Plan. Within days of the
effective date of this Order, Respondent(s) shall submit to
EPA the site health and safety plan.
Following approval or modification by EPA, the RI/FS work
plan and the sampling and analysis plan are incorporated by
reference herein.
B. Task II; Community Relations Plan. EPA will prepare a
community relations plan, in accordance with EPA guidance and the
NCP. Respondent(s) shall provide information supporting EPA's
community relations programs.
C. Task IIIi Site Characterization. Following EPA approval or
modification of the work plan and sampling and analysis plan,
Respondent(•) shall implement the provisions of these plans to
characterize the site. Respondent(s) shall complete site
characterization within months of EPA approval or
modification of the work plan and sampling and analysis plan.
Respondent(s) shall provide EPA with analytical data within
days of each sampling activity, in a form showing the location,
medium and results. Within 7 days of completion of field
activities, Respondent(s) shall notify EPA in writing. During
site characterization, Respondent(s) shall provide EPA with the
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OSWER Directive Number 9835.3-1A
following deliverables, as described in the Statement of Work and
work plan:
1. Technical Memorandum on Modeling of Site Characteristics.
Where Respondent(s) proposes that modeling is appropriate,
within days of the initiation of site characterization,
Respondent(s) shall submit a technical memorandum on
modeling of site characteristics, as described in the
Statement of Work. If EPA disapproves of or requires
revisions to the technical memorandum on modeling of site
characteristics, in whole or in part, Respondent(s) shall
amend and submit to EPA a revised technical memorandum on
modeling of site characteristics which is responsive to the
directions in all EPA comments, within days of receiving
EPA's comments.
2. Preliminary Site Characterization Summary. Within
days of completion of the field sampling and analysis, as
specified in the work plan, Respondent(s) shall submit a
site characterization summary to EPA.
D. Task IV; Risk Assessment. Actual and potential risks for
human health and the environment shall be identified and
characterized in accordance with the attached Statement of Work
and the definitions and provisions of EPA's "Risk Assessment
Guidance for Superfund" consisting of the following two volumes:
the "Human Health Evaluation Manual," (October 1989)(OSWER
Directive number 9285.7-Ola), and the "Environmental Evaluation
Manual," March 1989 (OSWER Directive number 9285.7-02),
[EPA/540-1-89/001]. During the risk assessment, Respondent(s)
shall provide EPA with the following deliverables, which are
further described in the Statement of Work and work plan:
1. Summary Identifying Contaminants and List of Proposed
Indicator Chemicals. Within ^ days of completion of the
preliminary site characterization summary, Respondent(s)
shall submit a memorandum listing hazardous substances
present at the site and the indicator chemicals (i.e.
chemicals of potential concern, as described in the Risk
Assessment Guidance for Superfund.)
If EPA disapproves of or requires revisions to the memorandum
identifying contaminants and proposed indicator chemicals, in
whole or in part, Respondent(s) shall amend and submit to EPA a
revised memorandum identifying contaminants and proposed
indicator chemicals which is responsive to the directions in all
EPA comments, within days of receiving EPA's comments.
2. Memoranda on Exposure Scenarios and Fate and Transport
Models, within days of submitting the list of proposed
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OSWER Directive Number 9835.3-1A
indicator chemicals, Respondent(s) shall submit memorandum
describing the exposure scenarios, assumptions, fate and
transport models and data. If EPA disapproves of or
requires revisions to the memorandum on exposure scenarios
and fate and transport models, in whole or in part,
Respondent(s) shall amend and submit to EPA a, revised
memorandum on exposure scenarios and fate and transport
models which is responsive to the directions in all EPA
comments, within days of receiving EPA's comments.
3. Toxicolocrical and Epidemiological Studies Memorandum.
Within days of submitting the list of proposed indicator
chemicals, Respondent(s) shall submit a list of the
toxicological and epidemiological studies that will be used
to perform the toxicity assessment for chemicals lacking an
EPA toxicity value. If EPA disapproves of or requires
revisions to the toxicological and epidemiological studies
memorandum, in whole or in part, Respondent(s) shall amend
and submit to EPA a revised toxicological and
epidemiological studies memorandum which is responsive to
the directions in all EPA comments, within days of
receiving EPA's comments.
4. Baseline Human Health Risk Assessment Chapter of the RI
Report. Within days of submitting the memoranda on
exposure scenarios and models, and toxicological and
epidemiological studies, Respondent(s) shall submit to EPA a
baseline human health risk assessment report. If EPA
disapproves of or requires revisions to the baseline human
health risk assessment report, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised
baseline human health risk assessment report which is
responsive to the directions in all EPA comments, within
days of receiving EPA's comments. The approved baseline
report shall be incorporated into the RI report.
5. Environmental Evaluation Plan. Within days of the
effective date of this Order, Respondent(s) shall submit to
EPA an environmental evaluation plan. If EPA disapproves of
or requires revisions to the environmental evaluation plan,
in whole or in part, Respondent(s) shall amend and submit to
EPA a revised environmental evaluation plan which is
responsive to the directions in all EPA comments, within
days of receiving EPA's comments.
6. Environmental Evaluation Report* On the date that the
baseline human health risk assessment is due. Respondent(s)
shall submit to EPA an environmental evaluation report. If
EPA disapproves of or requires revisions to the
environmental evaluation report, in whole or in part,
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OSWER Directive Number 9835.3-1A
Respondent(s) shall amend and submit to EPA a revised
environmental evaluation report which is responsive to the
directions in all EPA comments, within days of receiving
EPA's comments.
E. Draft Remedial Investigation Report [See Task III of the
attached Statement of Work.] Within days of completion of
the human health risk assessment and environmental evaluation
report, Respondent(s) shall submit a draft remedial investigation
report consistent with the Statement of Work, work plan and
sampling and analysis plan. If EPA disapproves of or requires
revisions to the remedial investigation report, in whole or in
part, Respondent(s) shall amend and submit to EPA a revised
remedial investigation report which is responsive to the
directions in all EPA comments, within days of receiving
EPA's comments.
F. Task V; Treatability Studies. Respondent(s) shall conduct
treatability studies, except where Respondent(s) can demonstrate
to EPA's satisfaction that they are not needed. Major components
of the treatability studies include determination of the need for1
and scope of studies, the design of the studies, and the
completion of the studies, as described in the Statement of Work.
During treatability studies, Respondent(s) shall provide EPA with
the following deliverables:
1. Identification of Candidate Technologies Memorandum.
This memorandum shall be submitted within days of the
effective date of this Order. If EPA disapproves of or
requires revisions to the technical memorandum identifying
candidate technologies, in whole or in part, Respondent(s)
shall amend and submit to EPA a revised technical memorandum
identifying candidate technologies which is responsive to
the directions in all EPA comments, within days of
receiving EPA's comments.
2. Treatability Testing Statement of Work. If EPA
determines that treatability testing is required, within
days thereafter [or as specified by EPA], Respondent(s)
shall submit a treatability testing statement of work.
3. Traatability Testing Work Plan. Within days of
submission of the treatability testing statement of work,
Respondent(s) shall submit a treatability testing work plan,
including a schedule. If EPA disapproves of or requires
revisions to the treatability testing work plan, in whole or
in part, Respondent(s) shall amend and submit to EPA a
revised treatability testing work plan which is responsive
to the directions in all EPA comments, within days of
receiving EPA's comments.
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OSWER Directive Number 9835.3-1A
4. Treatabilitv Study Sampling and Analysis Plan. Within
days of the identification of the need for a separate or
revised QAPP or FSP, Respondent(s) shall submit a
treatability study sampling and analysis plan. If EPA
disapproves of or requires revisions to the treatability
study sampling and analysis plan, in whole or in part,
Respondent(s) shall amend and submit to EPA a revised
treatability study sampling and analysis plan which is
responsive to the directions in all EPA comments, within
days of receiving EPA's comments.
5. Treatability Study Site Health and Safety Plan, within
days of the identification of the need for a revised
health and safety plan, Respondent(s) shall submit a
treatability study site health and safety plan.
6. Treatability Study Evaluation Report. Within days of
completion of any treatability testing, Respondent(s) shall
submit a treatability study evaluation report as provided in
the Statement of Work and work plan. If EPA disapproves of >
or requires revisions to the treatability study report, in
whole or in part, Respondent(s) shall amend and submit to
EPA a revised treatability study report which is responsive
to the directions in all EPA comments, within days of
receiving EPA's comments.
G. Task VI; Development and Screening of Alternatives.
Respondent(s) shall develop an appropriate range of waste
management options that will be evaluated through the development
and screening of alternatives, as provided in the Statement of
Work and work plan. During the development and screening of
alternatives, Respondent(s) shall provide EPA with the following
deliverables:
1. Memorandum on Remedial Action Objectives. Within
days of completion of the risk assessment, Respondent(s)
shall submit a memorandum on remedial action objectives.
2. Memorandum on Development and Preliminary Screening of
Alternatives. Assembled Alternatives Screening Results and
Final Screening. Within days of submittal of the
memorandum on remedial action objectives, Respondent(s)
shall submit a memorandum summarizing the development and
screening of remedial alternatives, including an
alternatives array document as described in the Statement of
Work.
H. Task VIIt Detailed Analysis of Alternatives. Respondent(s)
shall conduct a detailed analysis of remedial alternatives, as
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described in the Statement of Work and work plan. During the
detailed analysis of alternatives, Respondent(s) shall provide
EPA with the following deliverables and presentation:
1. Report on Comparative Analysis and Presentation to EPA.
within days of submission of a memorandum on the
development and screening of remedial alternatives,
Respondent(s) shall submit a report on comparative analysis
to EPA summarizing the results of the comparative analysis
performed between the remedial alternatives. If EPA
disapproves of or requires revisions to the report on
comparative analysis, Respondent(s) shall amend and submit
to EPA a revised report on comparative analysis which is
responsive to the directions in all EPA comments, within
days of receiving EPA's comments. Within two weeks of
submitting the original report on comparative analysis,
Respondent(s) shall make a presentation to EPA during which
Respondent(s) shall summarize the findings of the remedial
investigation and remedial action objectives, and present
the results of the nine criteria evaluation and comparative
analysis, as described in the Statement of Work.
2. Draft Feasibility Study Report. Within days of the
presentation to EPA, Respondent(s) shall submit a draft
feasibility study report. Respondent(s) shall refer to
Table 6-5 of the RI/FS Guidance for report content and
format. If EPA disapproves of or requires revisions to the
draft feasibility study report in whole or in part,
Respondent(s) shall amend and submit to EPA a revised
feasibility study report which is responsive to the
directions in all EPA comments, within days of receiving
EPA's comments. The report as amended, and the
administrative record, shall provide the basis for the
proposed plan under CERCLA §§ 113(k) and 117(a) by EPA, and
shall document the development and analysis of remedial
alternatives.
25. EPA reserves the right to comment on, modify and direct
changes for all deliverables. At EPA's discretion, Respondent(s)
must fully correct all deficiencies and incorporate and integrate
all information and comments supplied by EPA either in subsequent
or resubmitted deliverables.
26. Respondent(s) shall not proceed further with any
subsequent activities or tasks until receiving EPA approval for
the following deliverables: RI/FS work plan and sampling and
analysis plan, baseline risk assessment chapter of the remedial
investigation report, draft remedial investigation report,
treatability testing work plan and sampling and analysis plan,
[delete any of the foregoing not required as a deliverable] and
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OSWER Directive Number 9835.3-lA
draft feasibility study report. While awaiting EPA approval on
these deliverables, Respondent(s) shall proceed with all other
tasks and activities which may be conducted independently of
these deliverables, in accordance with the schedule set forth in
this Consent Order.
27. For all remaining deliverables not enumerated above in
paragraph 26, Respondent(s) shall proceed with all subsequent
tasks, activities and deliverables without awaiting EPA approval
on the submitted deliverable. EPA reserves the right to stop
Respondent(s) from proceeding further, either temporarily or
permanently, on any task, activity or deliverable at any point
during the RI/FS.
28. In the event that Respondent(s) amends or revises a
report, plan or other submittal upon receipt of EPA comments, if
EPA subsequently disapproves of the revised submittal, or if
subsequent submittals do not fully reflect EPA's directions for
changes, EPA retains the right to seek stipulated or statutory
penalties; perform its own studies, complete the RI/FS (or any
portion of the RI/FS) under CERCLA and the NCP, and seek
reimbursement from the Respondent(s) for its costs; and/or seek
any other appropriate relief.
29. In the event that EPA takes over some of the tasks, but
not the preparation of the RI/FS, Respondent(s) shall incorporate
and integrate information supplied by EPA into the final RI/FS
report.
30. Neither failure of EPA to expressly approve or
disapprove of Respondent(s)' submissions within a specified time
period(s), nor the absence of comments, shall be construed as
approval by EPA. Whether or not EPA gives express approval for
Respondent(s)' deliverables, Respondent(s) is responsible for
preparing deliverables acceptable to EPA.
31. Respondent(s) shall, prior to any off-site shipment of
hazardous substances from the site to an out-of-state waste
management facility, provide written notification to the
appropriate state environmental official in the receiving state
and to EPA'» Designated Project Coordinator of such shipment of
hazardous substances. However, the notification of shipments
shall not apply to any such off-site shipments when the total
volume of such shipments will not exceed 10 cubic yards.
(a) The notification shall be in writing, and shall include
the following information, where available: (1) the name and
location of the facility to which the hazardous substances are to
be shipped; (2) the type and quantity of the hazardous substances
to be shipped; (3) the expected schedule for the shipment of the
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OSWER Directive Number 9835.3-1A
hazardous substances; and (4) the method of transportation.
Respondent(s) shall notify the receiving state of major changes
in the shipment plan, such as a decision to ship the hazardous
substances to another facility within the same state, or to a
facility in another state.
(b) The identity of the receiving facility and state will
be determined by Respondent(s) following the award of the
contract for the remedial investigation and feasibility study.
Respondent(s) shall provide all relevant information, including
information under the categories noted in paragraph 31(a) above,
on the off-site shipments, as soon as practical after the award
of the contract and before the hazardous substances are actually
shipped.
IX. MODIFICATION OF THE WORK PLAN
32. If at any time during the RI/FS process, Respondent(s)
identifies a need for additional data, a memorandum documenting
the need for additional data shall be submitted to the EPA
Project Coordinator within 20 days of identification. EPA in its^
discretion will determine whether the additional data will be
collected by Respondent(s) and whether it will be incorporated
into reports and deliverables.
33. In the event of conditions posing an immediate threat
to human health or welfare or the environment, Respondent(s)
shall notify EPA and the state immediately. In the event of
unanticipated or changed circumstances at the site, Respondent(s)
shall notify the EPA Project Coordinator by telephone within 24
hours of discovery of the unanticipated or changed circumstances.
In addition to the authorities in the NCP, in the event that EPA
determines that the immediate threat or the unanticipated or
changed circumstances warrant changes in the work plan, EPA shall
modify or amend the work plan in writing accordingly.
Respondent(s) shall perform the work plan as modified or amended.
34. EPA may determine that in addition to tasks defined in
the initially approved work plan, other additional work may be
necessary to accomplish the objectives of the RI/FS as set forth
in the Statement of Work for this RI/FS. EPA may require that
the Respondent(s) perform these response actions in addition to
those required by the initially approved work plan, including any
approved modifications, if it determines that such actions are
necessary for a complete RI/FS. Respondent(s) shall confirm its
willingness to perform the additional work in writing to EPA
within 7 days of receipt of the EPA request or Respondent(s)
shall invoke dispute resolution. Subject to EPA resolution of
any dispute, Respondent(s) shall implement the additional tasks
which EPA determines are necessary. The additional work shall be
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completed according to the standards, specifications, and
schedule set forth or approved by EPA in a written modification
to the work plan or written work plan supplement. EPA reserves
the right to conduct the work itself at any point, to seek
reimbursement from Respondent(s), and/or to seek any other
appropriate relief.
X. QUALITY ASSURANCE
35. Respondent(s) shall assure that work performed, samples
taken and analyses conducted conform to the requirements of the
Statement of Work, the QAPP and guidances identified therein.
Respondent(s) will assure that field personnel used by
Respondent(s) are properly trained in the use of field equipment
and in chain of custody procedures.
XI. FINAL RI/FS. PROPOSED PLAN. PUBLIC COMMENT.
RECORD OF DECISION. ADMINISTRATIVE RECORD
36. EPA retains the responsibility for the release to the
public of the RI/FS report. EPA retains responsibility for the
preparation and release to the public of the proposed plan and
record of decision in accordance with CERCLA and the NCP.
37. EPA shall provide Respondent(s) with the final RI/FS
report, proposed plan and record of decision.
38. EPA will determine the contents of the administrative
record file for selection of the remedial action. Respondent(s)
must submit to EPA documents developed during the course of the
RI/FS upon which selection of the response action may be based.
Respondent(s) shall provide copies of plans, task memoranda
including documentation of field modifications, recommendations
for further action, quality assurance memoranda and audits, raw
data, field notes, laboratory analytical reports and other
reports. Respondent(s) must additionally submit any previous
studies conducted under state, local or other federal authorities
relating to selection of the response action, and all
communications between Respondent(s) and state, local or other
federal authorities concerning selection of the response action.
At EPA's discretion, Respondent(s) may establish a community
information repository at or near the site, to house one copy of
the administrative record.
XII. PROGRESS REPORTS AND MEETINGS
39. Respondent(s) shall make presentations at, and
participate in, meetings at the request of EPA during the
initiation, conduct, and completion of the RI/FS. In addition to
discussion of the technical aspects of the RI/FS, topics will
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OSWER Directive Number 9835.3-lA
include anticipated problems or new issues. Meetings will be
scheduled at EPA's discretion.
40. In addition to the deliverables set forth in this
Order, Respondent(s) shall provide to EPA monthly progress
reports by the 10th day of the following month. At a minimum,
with respect to the preceding month, these progress reports shall
(1) describe the actions which have been taken to comply with
this Consent Order during that month, (2) include all results of
sampling and tests and all other data received by the
Respondent(s), (3) describe work planned for the next two months
with schedules relating such work to the overall project schedule
for RI/FS completion and (4) describe all problems encountered
and any anticipated problems, any actual or anticipated delays,
and solutions developed and implemented to address any actual or
anticipated problems or delays.
XIII. SAMPLING. ACCESS. AND DATA AVAILABILITY/ADMISSIBILITY
41. All results of sampling, tests, modeling or other data
(including raw data) generated by Respondent(s), or on *
Respondent(s)' behalf, during implementation of this Consent
Order, shall be submitted to EPA in the subsequent monthly
progress report as described in Section XII of this Order. EPA
will make available to the Respondent(s) validated data generated
by EPA unless it is exempt from disclosure by any federal or
state law or regulation.
42. Respondent(s) will verbally notify EPA at least 15 days
prior to conducting significant field events as described in the
Statement of Work, work plan or sampling and analysis plan. At
EPA's verbal or written request, or the request of EPA's
oversight assistant, Respondent(s) shall allow split or duplicate
samples to be taken by EPA (and its authorized representatives)
of any samples collected by the Respondent(s) in implementing
this Consent Order. All split samples of Respondent(s) shall be
analyzed by the methods identified in the QAPP.
43. At all reasonable times, EPA and its authorized
representatives shall have the authority to enter and freely move
about all property at the site and off-site areas where work, if
any, is being performed, for the purposes of inspecting
conditions, activities, the results of activities, records,
operating logs, and contracts related to the site or
Respondent(s) and its contractor pursuant to this Order;
reviewing the progress of the Respondent(s) in carrying out the
terms of this Consent Order; conducting tests as EPA or its
authorized representatives deem necessary; using a camera, sound
recording device or other documentary type equipment; and
verifying the data submitted to EPA by the Respondent(s). The
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Respondent(s) shall allow these persons to inspect and copy all
records, files, photographs, documents, sampling and monitoring
data, and other writings related to work undertaken in carrying
out this Consent Order. Nothing herein shall be interpreted as
limiting or affecting EPA's right of entry or inspection
authority under federal law. All parties with access to the site
under this paragraph shall comply with all approved health and
safety plans.
44. The Respondent(s) may assert a claim of business
confidentiality covering part or all of the information submitted
to EPA pursuant to the terms of this Consent Order under 40
C.F.R. §2.203, provided such claim is allowed by section
104(e)(7) of CERCLA, 42 U.S.C. §9604(e)(7). This claim shall be
asserted in the manner described by 40 C.F.R. §2.203(b) and
substantiated at the time the claim is made. Information
determined to be confidential by EPA will be given the protection
specified in 40 C.F.R. Part 2. If no such claim accompanies the
information when it is submitted to EPA, it may be made available
to the public by EPA or the state without further notice to the
Respondent(s). Respondent(s) agrees not to assert
confidentiality claims with respect to any data related to site
conditions, sampling, or monitoring.
45. In entering into this Order, Respondent(s) waives any
objections to any data gathered, generated, or evaluated by EPA,
the state or Respondent(s) in the performance or oversight of the
work that has been verified according to the quality
assurance/quality control (QA/QC) procedures required by the
Consent Order or any EPA-approved work plans or sampling and
analysis plans. If Respondent(s) objects to any other data
relating to the RI/FS, Respondent(s) shall submit to EPA a report
that identifies and explains its objections, describes the
acceptable uses of the data, if any, and identifies any
limitations to the use of the data. The report must be submitted
to EPA within 15 days of the monthly progress report containing
the data.
46. If the site, or the off-site area that is to be used
for access or is within the scope of the RI/FS, is owned in whole
or in part by parties other than those bound by this Consent
Order, Respondent(s) will obtain, or use its best efforts to
obtain, site access agreements from the present owner(s) within
days of the effective date of this Consent Order. Such
agreements shall provide access for EPA, its contractors and
oversight officials, the state and its contractors, and the
Respondent(s) or its authorized representatives, and such
agreements shall specify that Respondent(s) is not EPA's
representative with respect to liability associated with site
activities. Copies of such agreements shall be provided to EPA
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prior to Respondent(s)' initiation of field activities.
Respondent(s)' best efforts shall include providing reasonable
compensation to any off-site property owner. If access
agreements are not obtained within the time referenced above,
Respondent(s) shall immediately notify EPA of its failure to
obtain access. EPA may obtain access for the Respondent(s),
perform those tasks or activities with EPA contractors, or
terminate the Consent Order in the event that Respondent(s)
cannot obtain access agreements. In the event that EPA performs
those tasks or activities with EPA contractors and does not
terminate the Consent Order, Respondent(s) shall perform all
other activities not requiring access to that site, and shall
reimburse EPA for all costs incurred in performing such
activities. Respondent(s) additionally shall integrate the
results of any such tasks undertaken by EPA into its reports and
deliverables. Furthermore, the Respondent(s) agrees to indemnify
the U.S. Government as specified in Section XXV of this Order.
Respondent(s) also shall reimburse EPA for all costs and attorney
fees incurred by the United States to obtain access for the
Respondent(s) pursuant to paragraph 70.
',
XIV. DESIGNATED PROJECT COORDINATORS
47. Documents including reports, approvals, disapprovals,
and other correspondence which must be submitted under this
Consent Order, shall be sent by certified mail, return receipt
requested, to the following addressees or to any other addressees
which the Respondent(s) and EPA designate in writing:
(a) Documents to be submitted to EPA should be sent to
[indicate number of copies]:
[EPA Project Coordinator,
CERCLA Branch]
US EPA, Region [#],
[Street, City, State, Zip Code].
(b) Documents to be submitted to the Respondent(s) should
be sent to [include number of copies]:
[Name, Title,
Organization,
Street, City, State, Zip Code].
48. On or before the effective date of this Consent Order,
EPA and the Respondent(s) shall each designate their own Project
Coordinator. Each Project Coordinator shall be responsible for
overseeing the implementation of this Consent Order. To the
maximum extent possible, communications between the Respondent(s)
and EPA shall be directed to the Project Coordinator by mail,
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with copies to such other persons as EPA, the state, and
Respondent(s) may respectively designate. Communications
include, but are not limited to, all documents, reports,
approvals, and other correspondence submitted under this Consent
Order.
49. EPA and the Respondent(s) each have the right to change
their respective Project Coordinator. The other party must be
notified in writing at least 10 days prior to the change.
50. EPA's Project Coordinator shall have the authority
lawfully vested in a Remedial Project Manager (RPM) and On-Scene
Coordinator (OSC) by the NCP. In addition, EPA's Project
Coordinator shall have the authority consistent with the National
Contingency Plan, to halt any work required by this Consent
Order, and to take any necessary response action when s/he
determines that conditions at the site may present an immediate
endangerment to public health or welfare or the environment. The
absence of the EPA Project Coordinator from the area under study
pursuant to this Consent Order shall not be cause for the
stoppage or delay of work.
51. EPA shall arrange for a qualified person to assist in
its oversight and review of the conduct of the RI/FS, as required
by section 104(a) of CERCLA, 42 U.S.C. §9604(a). The oversight
assistant may observe work and make inquiries in the absence of
EPA, but is not authorized to modify the work plan.
xv. OTHER APPLICABLE LAWS
52. Respondent(s) shall comply with all laws that are
applicable when performing the RI/FS. No local, state, or
federal permit shall be required for any portion of any action
conducted entirely on-site, including studies, where such action
is selected and carried out in compliance with section 121 of
CERCLA.
XVI. RECORD PRESERVATION
53. All records and documents in EPA's and Respondent's
possession that relate in any way to the site shall be preserved
during the conduct of this Consent Order and for a minimum of 10
years after commencement of construction of any remedial action.
The Respondent(s) shall acquire and retain copies of all
documents that relate to the site and are in the possession of
its employees, agents, accountants, contractors, or attorneys.
After this 10 year period, the Respondent(s) shall notify EPA at
least 90 days before the documents are scheduled to be destroyed.
If EPA requests that the documents be saved, the Respondent(s)
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shall, at no cost to EPA, give EPA the documents or copies of the
documents.
XVII. DISPUTE RESOLUTION
54. Any disputes concerning activities or deliverables
required under this Order, for which dispute resolution has been
expressly provided for, shall be resolved as follows: If the
Respondent(s) objects to any EPA notice of disapproval or
requirement made pursuant to this Consent Order, Respondent(s)
shall notify EPA's Project Coordinator in writing of its
objections within 14 days of receipt of the disapproval notice or
requirement. Respondent(s)' written objections shall define the
dispute, state the basis of Respondent(s)' objections, and be
sent certified mail, return receipt requested. EPA and the
Respondent(s) then have an additional 14 days to reach agreement.
If an agreement is not reached within 14 days, Respondent may
request a determination by EPA's [Branch Chief/Division
Director]. The [Branch Chief's/Division Director's]
determination is EPA's final decision. Respondent(s) shall
proceed in accordance with EPA's final decision regarding the
matter in dispute, regardless of whether Respondent(s) agrees
with the decision. If the Respondent(s) does not agree to
perform or does not actually perform the work in accordance with
EPA's final decision, EPA reserves the right in its sole
discretion to conduct the work itself, to seek reimbursement from
the Respondent(s), to seek enforcement of the decision, to seek
stipulated penalties, and/or to seek any other appropriate
relief.
55. Respondent(s) is not relieved of its obligations to
perform and conduct activities and submit deliverables on the
schedule set forth in the work plan, while a matter is pending in
dispute resolution. The invocation of dispute resolution does
not stay stipulated penalties under this Order.
XVIII. DELAY IN PERFORMANCE/STIPULATED PENALTIES
56. For each day that the Respondent(s) fails to complete a
deliverable in a timely manner or fails to produce a deliverable
of acceptable quality, or otherwise fails to perform in
accordance with the requirements of this Order, Respondent(s)
shall be liable for stipulated penalties. Penalties begin to
accrue on the day that performance is due or a violation occurs,
and extend through the period of correction. Where a revised
submission by Respondent(s) is required, stipulated penalties
shall continue to accrue until a satisfactory deliverable is
produced. EPA will provide written notice for violations that
are not based on timeliness; nevertheless, penalties shall accrue
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from the day a violation commences. Payment shall be due within
30 days of receipt of a demand letter from EPA.
57. Respondents shall pay interest on the unpaid balance,
which shall begin to accrue at the end of the 30-day period, at
the rate established by the Department of Treasury pursuant to 30
U.S.C. §3717. Respondents shall further pay a handling charge of
1 percent, to be assessed at the end of each 31 day period, and a
6 percent per annum penalty charge, to be assessed if the penalty
is not paid in full within 90 days after it is due.
58. Respondent(s) shall make all payments by forwarding a
check to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
Checks should identify the name of the site, the site
identification number, the account number, and the title of this
Order. A copy of the check and/or transmittal letter shall be
forwarded to the EPA Project Coordinator.
59. For the following major deliverables, stipulated
penalties shall accrue in the amount of per day, per
violation, for the first seven days of noncompliance; per
day, per violation, for the 8th through 14th day of
noncompliance; per day, per violation, for the 15th day
through the 30th day; and per day per violation for all
violations lasting beyond 30 days.
1) An original and any revised work plan.
2) An original and any revised sampling and analysis plan.
3) An original and any revised baseline risk assessment
chapter of the remedial investigation report.
4) An original and any revised remedial investigation
report.
5) An original and any revised treatability testing work
plan.
6) An original and any revised treatability study sampling
and analysis plan.
7) An original and any revised feasibility study report.
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60. For the following interim deliverables, stipulated
penalties shall accrue in the amount of per day, per
violation, for the first week of noncompliance; per day, per
violation, for the 8th through 14th day of noncompliance;
per day, per violation, for the 15th day through the 30th day of
noncompliance; and per day per violation for all violations
lasting beyond 30 days.
1) Technical memorandum on modeling of site
characteristics.
2) Preliminary site characterization summary.
3) Summary identifying contaminants and list of proposed
indicator chemicals.
4) Memoranda on exposure scenarios and fate and transport
models.
5) Toxicological and epidemiological studies memorandum.
6) Environmental evaluation plan.
7) Identification of candidate technologies memorandum.
8) Treatability testing statement of work.
9) Treatability study evaluation report.
10) Memorandum on remedial action objectives.
11) Memoranda on development and preliminary screening of
alternatives, assembled alternatives screening
results, and final screening.
12) Comparative analysis report.
61. For the monthly progress reports, stipulated penalties
shall accrue in the amount of per day, per violation, for
the first week of noncompliance; per day, per violation, for
the 8th through 14th day of noncompTTance; per day, per
violation, for the 15th day through the 30th day; and per
day, per violation, for all violations lasting beyond 30 days.
62. Respondent(s) may dispute EPA's right to the stated
amount of penalties by invoking the dispute resolution procedures
under Section XVII herein. Penalties shall accrue but need not
be paid during the dispute resolution period. If Respondent(s)
do not prevail upon resolution, all penalties shall be due to EPA
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within 30 days of resolution of the dispute. If Respondent(s)
prevails upon resolution, no penalties shall be paid.
63. In the event that EPA provides for corrections to be
reflected in the next deliverable and does not require
resubmission of that deliverable, stipulated penalties for that
interim deliverable shall cease to accrue on the date of such
decision by EPA.
64. The stipulated penalties provisions do not preclude EPA
from pursuing any other remedies or sanctions which are available
to EPA because of the Respondent(s)' failure to comply with this
Consent Order, including but not limited to conduct of all or
part of the RI/FS by EPA. Payment of stipulated penalties does
not alter Respondent(s)' obligation to complete performance under
this Consent Order.
XIX. FORCE MAJEURE
65. "Force majeure", for purposes of this Consent Order, is
defined as any event arising from causes entirely beyond the
control of the Respondent(s) and of any entity controlled by
Respondent(s), including their contractors and subcontractors,
that delays the timely performance of any obligation under this
Consent Order notwithstanding Respondent(s)' best efforts to
avoid the delay. The requirement that the Respondent(s) exercise
"best efforts to avoid the delay" includes using best efforts to
anticipate any potential force majeure event and best efforts to
address the effects of any potential force majeure event (1) as
it is occurring and (2) following the potential force majeure
event, such that the delay is minimized to the greatest extent
practicable. Examples of events that are not force majeure
events include, but are not limited to, increased costs or
expenses of any work to be performed under this Order or the
financial difficulty of Respondent(s) to perform such work.
66. If any event occurs or has occurred that may delay the
performance of any obligation under this Order, whether or not
caused by a force majeure event, Respondent(s) shall notify by
telephone the Remedial Project Manager or, in his or her absence,
the Director of the Hazardous Waste Management Division, EPA
Region , within 48 hours of when the Respondent(s) knew or
should have known that the event might cause a delay. Within
five business days thereafter, Respondent(s) shall provide in
writing 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 mitigate the effect of the delay; and a statement
as to whether, in the opinion of Respondent(s), such event may
cause or contribute to an endangerment to public health, welfare
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or the environment. Respondent(s) shall exercise best efforts to
avoid or minimize any delay and any effects of a delay. Failure
to comply with the above requirements shall preclude
Respondent(s) from asserting any claim of force majeure.
67. If EPA agrees that the delay or anticipated delay is
attributable to force majeure, the time for performance of the
obligations under this Order that are directly affected by the
force majeure event shall be extended by agreement of the
parties, pursuant to section XXVI of this Order, for a period of
time not to exceed the actual duration of the delay caused by the
force majeure event. An extension of the time for performance of
the obligation directly affected by the force majeure event shall
not, of itself, extend the time for performance of any subsequent
obligation.
68. If EPA does not agree that the delay or anticipated
delay has been or will be caused by a force majeure event, or
does not agree with Respondent(s) on the length of the extension,
the issue shall be subject to the dispute resolution procedures
set forth in section XVII of this Order. In any such proceeding,
to qualify for a force majeure defense, Respondent(s) shall have
the burden of demonstrating by a preponderance of the evidence
that the delay or anticipated delay has been or will be caused by
a force majeure event, that the duration of the delay was or will
be warranted under the circumstances, that Respondent(s) did
exercise or is exercising due diligence by using its best efforts
to avoid and mitigate the effects of the delay, and that
Respondent(s) complied with the requirements of paragraph 66.
69. Should Respondent(s) carry the burden set forth in
paragraph 65, the delay at issue shall be deemed not to be a
violation of the affected obligation of this Consent Order.
XX. REIMBURSEMENT OF PAST COSTS
[Note that the Agency cannot compromise past costs unless the
consent order is also issued under §122(h)(l), and the
requirements of §122(h)(l) are also met, i.e., prior written
approval of the Attorney General is obtained if the total past
and projected response costs exceed $500,000, excluding
interest.]
70. Within 15 days of the effective date of this Order,
Respondent(s) shall remit a certified or cashiers check to EPA in
the amount of $ , as previously demanded in the RI/FS Special
Notice Letter dated , together with interest that has
accrued thereon at the rate of interest specified for the
Hazardous Substances Superfund under CERCLA section 107(a), for
all past response costs incurred by the United States in its
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[e.g., conduct of the removal action] at the site from
[date] to [date].
71. Checks should be made payable to the Hazardous
Substances Superfund and should include the name of the site, the
site identification number, the operable unit, if any, the
Regional Lock Box Number account number and the title of this
Order. Checks should be forwarded to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
72. A copy of the check should be sent simultaneously to
the EPA Project Coordinator.
XXI. REIMBURSEMENT OF RESPONSE AND OVERSIGHT COSTS
73. Following the issuance of this Consent Order, EPA shall
submit to the Respondent(s) on a periodic basis an accounting of
all response costs including oversight costs incurred by the U.S.
Government with respect to this RI/FS. Response costs may
include, but are not limited to, costs incurred by the U.S.
Government in overseeing Respondent(s)' implementation of the
requirements of this Order and activities performed by the
government as part of the RI/FS and community relations,
including any costs incurred while obtaining access. Costs shall
include all direct and indirect costs, including, but not limited
to, time and travel costs of EPA personnel and associated
indirect costs, contractor costs, cooperative agreement costs,
compliance monitoring, including the collection and analysis of
split samples, inspection of RI/FS activities, site visits,
discussions regarding disputes that may arise as a result of this
Consent Order, review and approval or disapproval of reports, and
costs of redoing any of Respondent(s)' tasks. Any necessary
summaries, including, but not limited to EPA's certified Agency
Financial Management System summary data (SPUR Reports), or such
other summary as certified by EPA, shall serve as basis for
payment demands.
74. Respondent(s) shall, within 30 days of receipt of each
accounting, remit a certified or cashier's check for the amount
of those costs. Interest shall accrue from the later of: the
date payment of a specified amount is demanded in writing; or the
date of the expenditure. The interest rate is the rate of
interest on investments for the Hazardous Substances Superfund in
section 107(a) of CERCIA.
75. Checks should be made payable to the Hazardous
Substances Superfund and should include the name of the site, the
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site identification number, the account number and the title of
this Order. Checks should be forwarded to:
U.S. Environmental Protection Agency
Superfund Accounting
[insert Regional Lock Box]
76. Copies of the transmittal letter and check should be
sent simultaneously to the EPA Project Coordinator.
77. Respondent(s) agrees to limit any disputes concerning
costs to accounting errors and the inclusion of costs outside the
scope of this Consent Order. Respondent(s) shall identify any
contested costs and the basis of its objection. All undisputed
costs shall be remitted by Respondent(s) in accordance with the
schedule set forth above. Disputed costs shall be paid by
Respondent(s) into an escrow account while the dispute is
pending. Respondent(s) bears the burden of establishing an EPA
accounting error or the inclusion of costs outside the scope of
this Consent Order.
XXII. RESERVATIONS OF RIGHTS AND REIMBURSEMENT OF OTHER COSTS
78. EPA reserves the right to bring an action against the
Respondent(s) under section 107 of CERCLA for recovery of all
response costs including oversight costs, incurred by the United
States at the site that are not reimbursed by the Respondent(s),
any costs incurred in the event that EPA performs the RI/FS or
any part thereof, and any future costs incurred by the United
States in connection with response activities conducted under
CERCLA at this site.
79. EPA reserves the right to bring an action against
Respondent(s) to enforce the past costs and response and
oversight cost reimbursement requirements of this Consent Order,
to collect stipulated penalties assessed pursuant to section
XVIII of this Consent Order, and to seek penalties pursuant to
section 109 of CERCLA, 42 U.S.C. §9609.
80. Except as expressly provided in this Order, each party
reserves all, rights and defenses it may have. Nothing in this
Consent Order shall affect EPA's removal authority or EPA's
response or enforcement authorities including, but not limited
to, the right to seek injunctive relief, stipulated penalties,
statutory penalties, and/or punitive damages.
81. Following satisfaction of the requirements of this
Consent Order, Respondent(s) shall have resolved its liability to
EPA for the work performed by Respondent(s) pursuant to this
Consent Order. Respondent(s) is not released from liability, if
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any, for any response actions taken beyond the scope of this
Order regarding removals, other operable units, remedial
design/remedial action of this operable unit, or activities
arising pursuant to section 121(c) of CERCLA.
XXIII. DISCLAIMER
82. By signing this Consent Order and taking actions under
this Order, the Respondent(s) does not necessarily agree with
EPA's Findings of Fact and Conclusions of Law. Furthermore, the
participation of the Respondent(s) in this Order shall not be
considered an admission of liability and is not admissible in
evidence against the Respondent(s) in any judicial or
administrative proceeding other than a proceeding by the United
States, including EPA, to enforce this Consent Order or a
judgment relating to it. Respondent(s) retains its rights to
assert claims against other potentially responsible parties at
the site. However, the Respondent(s) agrees not to contest the
validity or terms of this Order, or the procedures underlying or
relating to it in any action brought by the United States,
including EPA, to enforce its terms.
XXIV. OTHER CLAIMS
83. In entering into this Order, Respondent(s) waives any
right to seek reimbursement under section 106(b) of CERCLA.
Respondent also waives any right to present a claim under section
111 or 112 of CERCLA. This Order does not constitute any
decision on preauthorization of funds under section 111(a)(2) of
CERCLA. Respondent(s) further waives all other statutory and
common law claims against EPA, including, but not limited to,
contribution and counterclaims, relating to or arising out of
conduct of the RI/FS.
84. Nothing in this Order shall constitute or be construed
as a release from any claim, cause of action or demand in law or
equity against any person, firm, partnership, subsidiary or
corporation not a signatory to this Consent Order for any
liability it may have arising out of or relating in any way to
the generation, storage, treatment, handling, transportation,
release, or disposal of any hazardous substances, pollutants, or
contaminant* found at, taken to, or taken from the site.
85. Respondent(s) shall bear its own costs and attorneys
fees.
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XXV. FINANCIAL ASSURANCE. INSURANCE. AND INDEMNIFICATION
86. Respondent(s) shall establish and maintain a financial
instrument or trust account or other financial mechanism
acceptable to EPA, funded sufficiently to perform the work and
any other obligations required under this Consent Order,
including a margin for cost overruns. Within 15 days after the
effective date of this Consent Order, Respondent(s) shall fund
the financial instrument or trust account sufficiently to perform
the work required under this Consent Order projected for the
period beginning with the effective date of the Order through
. Beginning , and on or before the 15th calendar
day of each calendar year quarter thereafter, Respondent(s) shall
fund the financial instrument or trust account sufficiently to
perform the work and other activities required under this Order
projected for the succeeding calendar year quarter.
87. If at any time the net worth of the financial
instrument or trust account is insufficient to perform the work
and other obligations under the Order for the upcoming quarter,
Respondent(s) shall provide written notice to EPA within 7 days '
after the net worth of the financial instrument or trust account
becomes insufficient. The written notice shall describe why the
financial instrument or trust account is funded insufficiently
and explain what actions have been or will be taken to fund the
financial instrument or trust account adequately.
88. (a) Prior to commencement of any work under this
Order, Respondent(s) shall secure, and shall maintain in force
for the duration of this Order, and for two years after the
completion of all activities required by this Consent Order,
Comprehensive General Liability ("CGL") and automobile insurance,
with limits of $ million dollars, combined single limit,
naming as insured the United States. The CGL insurance shall
include Contractual Liability Insurance in the amount of $
per occurrence, and Umbrella Liability Insurance in the amount of
$2 million per occurrence.
(b) Respondent(s) shall also secure, and maintain in
force for the duration of this Order and for two years after the
completion of all activities required by this Consent Order the
following:
i. Professional Errors and Omissions Insurance in
the amount of $1,000,000.00 per occurrence.
ii. Pollution Liability Insurance in the amount of
$1,000,000.00 per occurrence, covering as
appropriate both general liability and
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OSWER Directive Number 9835.3-1A
professional liability arising from pollution
conditions.
(c) For the duration of this Order, Respondent(s)
shall satisfy, or shall ensure that their contractors or
subcontractors satisfy, all applicable laws and regulations
regarding the provision of employer's liability insurance and
workmen's compensation insurance for all persons performing work
on behalf of the Respondent(s), in furtherance of this Order.
(d) If Respondent(s) demonstrates by evidence
satisfactory to EPA that any contractor or subcontractor
maintains insurance equivalent to that described above, or
insurance covering the same risks but in a lesser amount, then
with respect to that contractor or subcontractor Respondent(s)
need provide only that portion of the insurance described above
which is not maintained by the contractor or subcontractor.
(e) Prior to commencement of any work under this
Order, and annually thereafter on the anniversary of the
effective date of this Order, Respondent(s) shall provide to EPA
certificates of such insurance and a copy of each insurance
policy.
89. At least 7 days prior to commencing any work under this
Consent Order, Respondent(s) shall certify to EPA that the
required insurance has been obtained by that contractor.
90. The Respondent(s) agrees to indemnify and hold the
United States Government, its agencies, departments, agents, and
employees harmless from any and all claims or causes of action
arising from or on account of acts or omissions of Respondent(s),
its employees, agents, servants, receivers, successors, or
assignees, or any persons including, but not limited to, firms,
corporations, subsidiaries and contractors, in carrying out
activities under this Consent Order. The United States
Government or any agency or authorized representative thereof
shall not be held as a party to any contract entered into by
Respondent(s) in carrying out activities under this Consent
Order.
XXVI. EFFECTIVE DATE AND SUBSEQUENT MODIFICATION
91. The effective date of this Consent Order shall be the
date it is signed by EPA.
92. This Consent Order may be amended by mutual agreement
of EPA and Respondent(s). Amendments shall be in writing and
shall be effective when signed by EPA. EPA Project Coordinators
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OSWER Directive Number 9835.3-1A
do not have the authority to sign amendments to the Consent
Order.
93. No informal advice, guidance, suggestions, or comments
by EPA regarding reports, plans, specifications, schedules, and
any other writing submitted by the Respondent(s) will be
construed as relieving the Respondent(s) of its obligation to
obtain such formal approval as may be required by this Order.
Any deliverables, plans, technical memoranda, reports (other than
progress reports), specifications, schedules and attachments
required by this Consent Order are, upon approval by EPA,
incorporated into this Order.
XXVII. TERMINATION AND SATISFACTION
94. This Consent Order shall terminate when the
Respondent(s) demonstrates in writing and certifies to the
satisfaction of EPA that all activities required under this
Consent Order, including any additional work, payment of past
costs, response and oversight costs, and any stipulated penalties
demanded by EPA, have been performed and EPA has approved the v
certification. This notice shall not, however, terminate
Respondent(s)• obligation to comply with Sections XVI, XXI, and
XXII of this Consent Order.
95. The certification shall be signed by a responsible
official representing each Respondent. Each representative shall
make the following attestation: "I certify that the information
contained in or accompanying this certification is true,
accurate, and complete." For purposes of this Consent Order , a
responsible official is a corporate official who is in charge of
a principal business function.
BY: DATE:
(Respondent(s))Title
BY: DATE:
Regional Administrator [or Delegates]
U.S. Environmental Protection Agency
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