6-2000- 005
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OSWERJDirective
No. 9834.14
MEMORANDUM
SUBJECT:
FROM:
Transtnittal of Model Consent Decree for CERCLA
Section 104(e) Information Request Enforcement Actions
. V
David B. Van
Acting Associate Enforcement Counsel fo^ Superfund, OE
ruce M. Diamond, Directort
Office of Waste Programs Enforcement, osv
TO;
Regional Counsel, Regions I-X
Waste Division Directors, Regions I-X
Please find attached a Model consent Decree developed to
further support the CERCLA § 104(e) Initiative. We appreciate
your assistance in providing comments on the draft Model Consent
Decree and hope that you and your staff will find this Model
Consent Decree useful in the implementation of the Agency's §
104(e) enforcement initiative.
The attached document is intended solely as guidance to
employees of EPA. Such guidance does 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 guidance and its internal implementing procedures.
If you have any questions regarding the attached model,
please contact Sally Mozley, Office of Enforcement, Superfund
Division, at 382-3070.
Attachment
cc: James M. Strock, Assistant Administrator for Enforcement
Don Clay, Assistant Administrator for Solid Haste and
Emergency Response
Edward E. Reich, Deputy Assistant Administrator, OE
Scott C. Fulton, Senior Counsel-Civil, OE
Regional Counsel Hazardous Waste Branch Chiefs
Regional Section I04(e) contacts
David Buente, Chief, Environmental Enforcement Section,
Environment and Natural Resources Division, DOJ
Received
JAN 2 8 2000
Eriforcsmint & Compliance Docket
& Information Center
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MODEL SECTION 104(el CONSENT DECREE Date: 6/1/90
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT O^
DIVISION
UNITED STATES OF AMERICA
Plaintiff, .) ,
) CIVIL ACTION NO
v. )
Defendant.
CONSENT'DECREE
I.
BACKGROUND
A. On [DATE], based on the United states Environmental
Protection Agency's ("EPA's") reasonable belief that there may be
a release or a threat of a release of a hazardous substance,
pollutant or contaminant from the Site, [NAME], a duly
authorized representative of the President, mailed an information
request {hereinafter "information Request"), certified
mail/return receipt requested, pursuant to Section 104(e) of the
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comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended, ("CERCLA"), 42 U.S.C. $ 9604
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B. EPA issued the Information Request to determine the
need for a response or choosing or taking any response action
under CERCLA, or otherwise enforcing the provisions of CERCLA,
C. The Information Request required the Settling Defendant
to furnish relevant information, upon reasonable notice, relating
to one or more of the following categories:
(1) the identification, nature, and quantity of
materials which have been or are generated, treated, stored, or
disposed of at a facility;
(2) the nature or extent of a release or threatened
release of a hazardous substance or pollutant or contaminant at
or from a facility;
(3) information relating to the ability of a person to
pay for or perform a cleanup;
[(4) information relating to the generation, treatment
storage, or disposal of a hazardous waste.]
D. On [DATE], the united States of America ("United
States"), on behalf of the Administrator of EPA, filed a
Complaint in this matter pursuant to Section 104Ce} of CERCLA
[and Section 3007 of the Resource Conservation and Recovery Act
("RCRA")f 42 U.S.C. S 6927] to enforce the Information Request
alleging that Settling Defendant has failed to comply with the
requirements of the Information Request.
E. In its Complaint, the United States asks:
(l) that the Court issue an order, pursuant to Section I04(e)(5)
of CERCLA, 42 U.S.C. $ 9604(e) [and Section 3p08(a) of RCRA, 42
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U.s.C. S 6928(aH, directing the defendant to fully comply with
the" Information Request; (2) that the Court award the United
States civil penalties pursuant to Section 104{e)(5) of CERCLA,
42 U.S.C-. .$. 9604{BH5) (and Section 3008(g) of RCRA, 42 U.S.C. §
6928(gH not-to exceed $ 25,000 for each day of noncompliance;
(3) that the Court award the United States its costs, including
response costs (if this is averred) under Sections l04Ct>Mi) and
104(e) of CERCLA, 42 U.S.C. SS 9604(23X1) and 9604(e>; and (4)
such other relief as the court finds appropriate.
F. The United States and settling Defendant recognize, and
the Court by entering this Consent Decree finds, that
implementation of this Consent Decree will avoid prolonged and
complicated litigation between the Parties, and that entry of
t
this Consent Decree is in the public interest.
NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:
, . II.
» JURISDICTION
This Court has jurisdiction over the subject matter of this
action pursuant to 28 U.S.C. SS 1331, 1345,' 42 U.S.C. SS 9604,
96l3(b>. This Court also has personal jurisdiction over the
Settling Defendant, which, solely for the purposes of this
Consent Decree and the underlying Complaint, waives all
objections and defenses that it may have to jurisdiction of the
Court or to venue in this District. The Complaint states claims
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against the Settling Defendant upon which relief may be granted,
III.
P&RTIES BOUM3
This Consent Decree applies to and is binding upon the
United States and upon the Settling Defendant, its employees,
agents, successors and assigns. No change in the Settling
Defendant's corporate or ownership status shall change the
Settling Defendant's responsibility to comply with the terms and
conditions of this Consent Decree, Settling Defendant hereby
waives the defenses of res judicata. collateral estoppel, and
claim splitting by the United states, with respect to any future
action that may be filed by the United States regarding the site.
IV.
DEFINITIONS
Unless otherwise expressly provided herein, terms used in
this Consent Decree which are defined in CERCLA shall have the
meaning assigned to them in the statute or its implementing
regulations. Whenever the terms listed below are used in this
Consent Decree or in the Exhibits or Appendices attached hereto
or incorporated hereunder, the following definitions shall apply;
A. "CERCLA11 shall mean the Comprehensive Environmental
Response, compensation, and Liability Act of 1980, as
amended, 42 U.S.C. SS 9601 fit Sfifl.
B. Days shall mean calendar days.
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5.
C. "EPA" shall mean the United States Environmental
Protection Agency, ' " ' * ' '
D. "Parties" shall mean the United states and the
Settling Defendant,
E. "Plaintiff" shall mean the United states.
[F." "RCRA'" shall mean the Solid Waste Disposal Act, as
amended, >:42 U.S.C. §§: 6901 et S£fl- » -(also known as the Resource
Conservation and Recovery Act).] ' *
G." "Response Costs" shall mean those costs incurred by
the United states" with regard to this Information Request
including but not limited to those*costs incurred by the united
States in 'drafting/ producing, sending, overseeing and enforcing
the Information Request. - - "
-i:-: 5 j H-r- "Settling Defendant" shall mean ___, J "
I. "United States" shall mean the United States of
America.
V.
- ' " COMPLIANCE KITH THE INFORMATION REQUEST
'''* [ALTERNATIVE AJ '' ' "'!r'-1
A, Settling Defendant hereby certifies that it has provided
to EPA copies of all documents-and information available to it as
requested in the Information Request.
. ' - .."':'-' ' OR
' ' - [ALTERNATIVE B]
A. Settling Defendant shall, vithin thirty (30) days of the
effective date of this consent Decree, provide to EPA all of the
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information and copies of all documents available to it as
requested in the Information Request.
B. Settling Defendant may assert a claim of business
confidentiality covering all or part of the information or
documentation developed in connection with this Consent Decree in
the manner described in 40 C.F.R, § 2.203(b). Such claims shall
be supported by documentation when the assertion is made by the
Settling Defendant, in accordance with the requirements of 40
C.F.R. § 2.204(e)(4). Sampling, analytical data or any other
information specified in Section 104(e)(7)(F) of CERCLA, 42
U.S.C. s 9604(e)(7)(F), shall not be claimed confidential by the
Settling Defendant. Information determined to be confidential by
EPA will be made available to the public only in accordance with
the procedures set forth in 40 C.F.R. Part 2, Subpart B. If no
claim of business confidentiality accompanies the information
when it is submitted to EPA, it may be made available to the
public by EPA without further notice to the Settling Defendant.
C. within ten (10) days of compliance with paragraph V.A.,
Defendant shall send to EPA an affidavit certifying that it has
provided EPA witti all information available to it in accordance
with the Information Request and Consent Decree.
D. Settling Defendant shall be liable for stipulated
penalties in the amounts set forth in this section for failure to
provide the requested information in compliance with this Consent
Decree. All penalties begin to accrue on the day that complete
performance is due, and continue to accrue through the final day
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of noncompliance.
E. All penalties owed to the United States under this
section.shall be.payable within thirty (30) days of receipt of
notice that the United states has not received the information in
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accordance with the requirements of the Consent Decree, Such
payment shall -be in the form of a certified check made payable to
the ;"EPA Hazardous Substances Superfund,11 and reference CERCLA
Number f §iteLSpJ. 13, Numfaer 1 and DOJ Case Number . Settling
Defendant-shall send the certified check by certified mail,
return receipt requested,, to [Insert appropriate Regional
Superfund Lockbox number and address].
F. If Settling Defendant fails to pay the stipulated
penalties, the United States may institute proceedings to collect
the penalties, as well as late charges and interest. However,
nothing in this section shall be construed as prohibiting, or
altering, or in anyway limiting the ability of the united states
to seek any other remedies or sanctions available by virtue of
Settling Defendant's violation of this Decree,
G. The following stipulated penalties shall be payable per
day to the United States for failure to provide the information
in accordance with the consent Decrees
Penalty Per violation
Per Day
$
$
$
Pejripd of Noncompliance
1st thru 14th Day
15th thru 30th Day
31st and beyond
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VI.
PENALTIES
A. settling Defendant shall pay a civil penalty of $
within thirty (30) days of the effective date of this consent
Decree. This payment shall be in the form of a certified check
made payable to "EPA Hazardous Substances Superfund," and
referencing CERCLA Number fSjteySpill Number 1 and DOJ case
Number , settling Defendant shall send the certified check by
certified mail, return receipt requested, to [insert appropriate
Regional Superfund Loclcbox number and address].
B. Copies of check(s) sent pursuant to this Section and any
accompanying transmittal letter(s), snail be sent simultaneously
to the United states as provided in Paragraph IX (Notices and
Submissions).
C. In the event that the payments required by this Section
are not timely made, the Settling Defendant shall pay interest on
the unpaid balance at the rate established by the Department of
Treasury pursuant to 31 U.S.C. S 3717 and 4 c,F,R. s 101.13.
Settling Defendant shall further pay (I) a handling charge of one
(1) percent at the end of each thirty-day late period, and (2) a
six (6) percent per annum penalty charge, to be assessed if
Settling Defendant has not paid in full within ninety (90) days
after the payment is due. Payments made under this paragraph
shall be in addition to such other remedies or sanctions
available to Plaintiff by virtue of Settling Defendant's failure
to make timely payments under this section.
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VII.
REIMBURSEMENT OF RESPONSE COSTS
A. Within thirty (30) days of the entry of this Consent
Decree, the Settling Defendantshall: '
a. Pay to EPA $ -_ in the form of a certified
check or checks" made payable to "EPA Hazardous substances
Super fund,1'" and referencing'CERCLA Number LSite/Spill ID Number!
and DOJ Case Number / in reimbursement of response costs
incurred by EPA regarding this matter. The certified check(s)
shall be sent by certffied mail, return receipt requested to
[Insert appropriate Regional Superfund Lockbox number and
address],' - " '.-... -..'..
B. Copies of check(s) paid pursuant to Section VII and any
accompanying transmittal letter(s), shall be sent simultaneously
to the United states as'provided in Paragraph IX (Notices and
Submissions). " -'
c. In the event that the payments required by this Section
are not timely made, the Settling Defendant shall pay interest on
the unpaid balance from the date such payment(s) is/are due at
the rate specified for interest on investments of the Hazardous
"»
Substances Superfund, Payments made under this paragraph shall
be in addition to such other remedies or sanctions available to
Plaintiff by virtue of any failure of settling Defendant to make
timely payments under this section. .
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VIII.
EFFECT OF SETTLEMENT
A. The United States and the settling Defendant agree to
entry of the Consent Decree to settle the claims made by the
United States against Settling Defendant in the complaint filed
in this action on [DATE],
B. The United States shall have the right to reopen this
Consent Decree or, if it deems it appropriate, to institute a new
and separate action to recover additional Response Costs for the
claims made in the complaint in this matter if the United States
obtains evidence that the information or representations of the
Settling Defendant as described in said affidavit is false or, in
any material respect, inaccurate. The right shall be in addition
to all other rights and causes of action, civil or criminal, the
United States may have under law or equity in such event.
IX.
NOTICES AMD SUBMISSIONS
Whenever, under the terms of this consent Decree, written
notice is required to be given or a submission is required, the
notice or submission shall be directed to the individuals at the
addresses specified below, unless those individuals or their
successors five written notice of a change to the other parties
by certified mail, return receipt requested. Written notice to
the individuals at the addresses specified below shall constitute
complete satisfaction of any written notice requirement of the
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Consent Decree with respect to the United States, EPA, and the
Settling Pendant.
As.to the United States;
Chief, Environmental* Enforcement Section
Environment and Natural Resources Division
Department of Justice
10th & Pennsylvania Avenue, N.w.
Washington, D.C. 20530 '- . .
Re: DOJ t ,
t Name]
Assistant Regional Counsel
United states Environmental Protection Agency
Region :
Asto EPA;
Director, Waste Management Division
United states Environmental Protection Agency
Region
[Name]
EPA Project Coordinator
United States Environmental Protection Agency
Region
- the Sett 1 in
[Name]
Settling Defendant's Project Coordinator
[Address]
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X.
EFFECTIVE DATE
The effective date of this consent Decree shall be the
date upon which this consent Decree is entered by the court. The
provisions of this Consent Decree shall terminate and be deemed
satisfied upon the Settling Defendant's receipt of written notice
from the United States that the Settling Defendant has
demonstrated to the satisfaction of the United States that all
the terms of this Consent Decree have been completed and response
costs and penalties have been paid.
XI.
RETENTION Of JURISDICTION
This Court will retain jurisdiction 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.
XII.
MODIFICATION
No modification shall be made to this Consent Decree
without written agreement of the Parties and approval of the
court. No oral modification of this Consent Decree shall be
effective. Nothing in this paragraph shall be deemed to alter
the court's power to supervise this consent Decree.
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XIII.
SIGNATORIES'
The undersigned representative of the Settling Defendant
and the Assistant Attorney General for the Environment and
Natural Resources:Division 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
the Settling Defendant and the United States, respectively, to
this document.
FOR THE UNITED STATES OF AMERICA
Date s
[Name]
Assistant Attorney General
Environment and Natural Resources
Division
U.S. Department, of Justice
Washington, B.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]
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[Name]
Regional Administrator, Region
U.S. Environmental Protection
Agency
[Address]
[Name]
Assistant Regional counsel
U.S. Environmental Protection
Agency
Region
[Address]
FOR COMPANY, INC.
[Name, Position, Address)
SO ORDERED THIS DAY OF 19 ,
United States District Judge
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