[Federal Register Volume 62, Number 226 (Monday, November 24, 1997)]
[Notices]
[Pages 62595-62607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30822]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5926-5]
Notice of Availability of and Initiation of a 30 Day Public
Comment Period for Two Administrative Orders on Consent for de minimis
Waste Contributors and One Administrative Order on Consent for a de
micromis Waste Contributor Pursuant to the Comprehensive Environmental
Response Compensation and Liability Act (CERCLA)
Notice is hereby given that on October 15, 1997, 3 administrative
orders on consent (``Orders'') between the United States Environmental
Protection Agency, Region VIII and various parties potentially
responsible for costs incurred by the United States for cleaning up the
Summitville Mine Superfund Site (collectively, ``the Settling
Parties'') were approved by the Assistant Attorney General of the
Department of Justice, Environment and Natural Resources Division, on
behalf of the Attorney General of the United States.
Because of the minimal nature, by volume and toxicity, of the
hazardous substances allegedly contributed by the Settling Parties to
the Site, EPA determined that the Settling Parties are eligible for
either a de minimis or de micromis settlement in accordance with
Section 122(g) of CERCLA.
The first settlement is a de micromis Order with Newmont
Exploration Limited, Newmont Mining Corporation, and Newmont Gold
Company (collectively, ``Newmont''). It settles Newmont's potential
liabilities under CERCLA Sections 106 and 107 and RCRA Section 7003 for
extremely limited historic exploration activities Newmont undertook at
the Site. Because of the minuscule nature of Newmont's contribution of
waste at the Site, and in accordance with EPA guidance, EPA is entering
into this without requiring the payment of a settlement amount.
EPA is also entering into 2 de minimis Orders--one with ASARCO,
Inc. and one with ARCO Environmental Remediation, L.L.C. These Orders
settle ARCO and ASARCO's potential liabilities under CERCLA Sections
106 and 107 and RCRA Section 7003 for the limited historic exploration
activities they undertook at the Site. ASARCO and ARCO are paying the
United States settlement amounts of $86,052.73 and $95,000,
respectively. All 3 Orders are based on the respective applicable EPA
model Orders.
EPA Region VIII will receive comments relating to the proposed
[[Page 62596]]
Orders for a period of thirty days from the date of publication of this
notice. Comments should be addressed to Nancy Mangone, Enforcement
Attorney (8ENF-L), U.S. EPA Region VIII, 999 18th Street, Denver,
Colorado 80202 and should refer to the Summitville Mine Superfund Site,
EPA Docket Nos. CERCLA-VIII-98-02, CERCLA-VIII-98-03, and CERCLA-VIII-
98-04. In accordance with Section 7003(d) of RCRA, 42 U.S.C. 6973(d),
commenters may request a public meeting in the affected areas.
The proposed Orders may be examined in person at the Superfund
Records Center, EPA Region VIII, 999 18th Street, Suite 500, Denver,
Colorado 80202, (303) 312-6489. A copy of each Order may also be
obtained by mail from the EPA Region VIII Superfund Records Center
(8EPR-PS) at the address listed above. In requesting a copy, please
refer to the referenced case and number. There is no cost for
requesting this document.
Carol Rushin,
Assistant Regional Administrator, Office of Enforcement, Compliance and
Environmental Justice, U.S. EPA Region VIII.
CERCLA Section 122(g)(4) De Micromis Administrative Order on Consent
In the Matter of: Summitville Mine Superfund Site, Site No. Y3;
Newmont Exploration Limited, Newmont Gold Company, and Newmont
Mining Corporation; Respondents.
Proceeding under section 122(g)(4) of the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended
(42 U.S.C. Sec. 9622(g)(4)). EPA Docket Number CERCLA-VIII-98-02.
I. Jurisdiction
1. This Administrative Order on Consent (``Consent Order'' or
``Order'') is issued pursuant to the authority vested in the President
of the United States by Section 122(g)(4) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended (CERCLA), 42 U.S.C. 9622(g)(4), to reach settlements in actions
under section 106 or 107 of CERCLA, 42 U.S.C. 9606 or 9607. The
authority vested in the President has been delegated to the
Administrator of the United States Environmental Protection Agency
(EPA) by Executive Order 12580, 52 FR 2923 (Jan. 29, 1987), and further
delegated to the Regional Administrators of the EPA by EPA Delegation
No. 14-14-E. This authority has been redelegated to the Assistant
Regional Administrator for Enforcement, Compliance and Environmental
Justice.
2. This Order is issued to Newmont Exploration Limited, Newmont
Mining Corporation, and Newmont Gold Company (Respondents). The
Respondents consent to and will not contest EPA's jurisdiction to issue
this Consent Order or to implement or enforce its terms.
II. Statement of Purpose
3. By entering into this Consent Order, the mutual objectives of
the Parties are:
a. to reach a final de micromis settlement between the Parties with
respect to the Site pursuant to Section 122(g) of CERCLA, 42 U.S.C.
9622(g), which resolves Respondents potential civil liability under
Sections 106 and 107 of CERCLA, 42 U.S.C. 9606 and 9607 and Section
7003 of the Resource Conservation and Recovery Act, as amended, 42
U.S.C. 6973, for injunctive relief with regard to the Site, and for
response costs incurred and to be incurred at or in connection with the
Site, thereby reducing litigation relating to the Site;
b. to simplify any remaining administrative and judicial
enforcement activities concerning the Site by eliminating the
potentially responsible parties covered by this Order from further
involvement at the Site; and
c. to protect Respondents, and to the extent provided herein, their
affliates, successors and assigns, from any lawsuit a potentially
responsible party could bring against them for response costs incurred
and to be incurred at or in connection with the Site and to provide
full and complete contribution protection for Respondents, and to the
extent provided herein, their affliates, successors and assigns, with
regard to the Site pursuant to Sections 122(f)(2) and 122(g)(5) of
CERCLA, 42 U.S.C. 9622(f)(2) and 9622(g)(5).
III. Definitions
Unless otherwise expressly provided herein, terms used in this
Consent Order that are defined in CERCLA or in regulations promulgated
under CERCLA shall have the meaning assigned to them in the statute or
regulations. Whenever the terms listed below are used in this Consent
Order, the following definitions shall apply:
CERCLA shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601, et
seq.
Consent Order or Order shall mean this Administrative Order on
Consent and all appendices attached hereto. In the event of conflict
between this Order and any appendix, the Order shall control.
Day shall mean a calendar day. 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.
EPA Hazardous Substance Superfund shall mean the Hazardous
Substance Superfund established by the Internal Revenue Code, 26 U.S.C.
9507.
Information currently known to the United States shall mean that
information and those documents contained in the Administrative Record
and Site File for the Site as of the effective date of this Order.
New Information shall mean information not contained in the
Administrative Record or Site File for the Site as of the effective
date of this Order.
Paragraph shall mean a portion of this Consent Order identified by
an Arabic numeral.
Parties shall mean EPA and the Respondents.
Respondents shall mean Newmont Exploration Limited, Newmont Mining
Corporation, and Newmont Gold Company.
Response Costs shall mean all costs of ``response'' as that term is
defined by Section 101(25) of CERCLA.
Section shall mean a portion of this Consent Order identified by a
Roman numeral.
Site shall mean the Summitville Mine Superfund Site Remedial
Investigation/Feasibility Study Area within Rio Grande County,
Colorado. Approximately 550 acres of the Site, known as the Summitville
Minesite, have been disturbed by mining activities and are currently
undergoing remedial action. As depicted on the map attached as Appendix
A, the Site consists of portions of the Alamosa River Watershed EPA
believes may have been impacted by releases of hazardous substances
from the Summitville Minesite. More specifically, the Site includes the
following areas: Area 1--Summitville Mine Site--The area within the
mine permit boundaries; Area 2--Wightman Fork-The Wightman Fork and
associated wetlands between the down stream mine permit boundary to the
confluence with the Alamosa River; Area 3--Alamosa River-The Alamosa
River and associated wetlands from the confluence with the Wightman
Fork downstream to the inlet of the Terrace Reservoir; Area 4--Terrace
Reservoir-The area which contains the Terrace Reservoir; and Area 5--
Below Terrace
[[Page 62597]]
Reservoir-The area below the Terrace Reservoir which has been impacted
by contamination transported by the Alamosa River and irrigation
canals.
United States shall mean the United States of America, including
its departments, agencies and instrumentalities.
IV. Statement of Facts
4. The United States Environmental Protection Agency (EPA)
initiated removal response actions at the Site on December 18, 1992 to
address releases or threatened releases of hazardous substances into
the Alamosa River and surrounding environment pursuant to the
President's authority under Sections 104 and 106 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986,
Pub. L. 99-499, 42 U.S.C. 9604 and 9606 (CERCLA).
5. On May 31, 1994, EPA listed the Site on the National Priorities
List as a result of releases or threatened releases of hazardous
substances at or from the Site.
6. On December 15, 1994, EPA issued four Interim Records of
Decision selecting the interim remedial actions to be implemented for
the following activities and/or areas at the Summitville Mine Site:
Water Treatment (WT IROD), Reclamation, the Heap Leach Pad (HLP IROD)
and the Cropsy Waste Pile, Beaver Mud Dump/Summitville Dam Impoundment,
and Mine Pits (CWP IROD).
7. As of March 31, 1997, the United States incurred approximately
$109 million in response costs responding to the release or threatened
release of hazardous substances at or in connection with the Site. The
United States continues to incur response costs in responding to the
release or threat of release of hazardous substances at or in
connection with the Site.
8. Newmont Exploration Limited (NEL) conducted extremely limited
exploration activities at the Site. NEL was previously a wholly owned
subsidiary of Newmont Mining Corporation and is currently a wholly
owned subsidiary of Newmont Gold Company.
9. Newmont Exploration Limited leased some property within the Site
for approximately seven months from June 1953 to January 1954. Pursuant
to the lease, limited exploratory activities were conducted, including
conducting nonintrusive geophysical surveys of the area, collecting
small surface soil and rock samples for assaying, drilling
approximately nine small diameter exploratory holes and conducting
limited reconnaissance examinations of portions of the underground mine
workings. Exploratory drilling activities such as those conducted at
the Site are designed to collect core samples to evaluate the geology
of the area. Respondents assert that such exploratory activities did
not generate mine wastes.
10. The total volume of waste rock, tailings and other mine waste
(including the Heap Leach Pad) requiring remediation at the Site is
approximately 11 million cubic yards. According to the WT IROD,
approximately 321,000 pounds of copper per year, if left untreated,
would contaminate the receiving waters surrounding the Site, including
the Wightman Fork and Alamosa River. EPA has determined parties are
eligible for a de minimis settlement if their contribution of mine
waste and metals loading is equal to or less than 3% of the total
volume of hazardous substances contributed to each of these media. The
Respondents' contribution of hazardous substances to these media is
below the 3% de minimis cut-off established by EPA for the Site. De
micromis parties are parties that have generated less than .0001% of
the hazardous substances found at the Site. Respondents' alleged
contribution is less than .0001% of the hazardous substances found at
the Site.
11. Based on information currently known to the United States, EPA
has calculated the Respondents' de micromis eligibility as follows:
Respondents assert that the activities of NEL did not contribute any
mine wastes to the Site. Even assuming a worst case scenario where all
of the materials generated by NEL's exploration activity were deposited
at the Site, EPA has estimated that the amount of hazardous substances
allegedly contributed to the Site by Respondents constitutes
substantially less than .0001% of the total volume of waste rock,
tailings or mine waste requiring remediation at the Site. EPA has also
determined that the Respondents' activities have not contributed any
copper loading to the waters at or emanating from the Site.
12. The material allegedly generated and disposed of by the
Respondents therefore involves only a minuscule portion of the total
hazardous substances generated or disposed of at the Site. EPA has also
concluded that the hazardous substances allegedly contributed to the
Site by Respondents are not significantly more toxic or of
significantly greater hazardous effect than other hazardous substances
at the Site.
13. EPA estimates that the total response costs incurred and to be
incurred at or in connection with the Site by the EPA Hazardous
Substance Superfund will be $152 million. EPA has determined that the
amount of waste which may have been contributed to the Site by the
Respondents is so minor that it would be inequitable to require them to
help finance or perform cleanup at the Site.
V. Determination
14. Based upon the Statement of Facts set forth above and on the
information currently known to the United States, EPA has determined
that:
(1) The Site is a ``facility'' as that term is defined in Section
101(9) of CERCLA, 42 U.S.C. 9601(9).
(2) Each of the Respondents is a ``person'' as that term is defined
in Section 101(21) of CERCLA, 42 U.S.C. 9601(21).
(3) Each of the Respondents may be a ``potentially responsible
party'' within the meaning of Section 122(g)(1) of CERCLA, 42 U.S.C.
9622(g)(1).
(4) There has been an actual or threatened ``release'' of a
``hazardous substance'' from the Site as those terms are defined in
Sections 101 (22) and (14) of CERCLA, 42 U.S.C. 9601 (22) and (14).
(5) The amount of hazardous substances contributed to the Site by
the Respondents and the toxic or other hazardous effects of the
hazardous substances contributed to the Site by the Respondents are
minuscule in comparison to other hazardous substances at the Site
within the meaning of Section 122(g)(1)(A) of CERCLA, 42 U.S.C.
9622(g)(1)(A).
(6) Respondents are eligible for a de micromis settlement because
they have contributed no more than a minuscule amount of hazardous
substance, if any, to the Site.
(7) The terms of this Consent Order are consistent with EPA policy
and guidance for settlements with de micromis waste contributors,
including but not limited to, ``Revised Guidance on CERCLA Settlements
with De Micromis Waste Contribution,'' OSWER Directive #9834.17 (June
3, 1996).
(8) Prompt final settlement with the Respondents is practicable and
in the public interest within the meaning of Section 122(g)(1) of
CERCLA, 42 U.S.C. 9622(g)(1).
(9) The settlement of this case without litigation and without the
admission or adjudication of any issue of fact or law is the most
appropriate means of resolving any liability that the Respondents may
have for response actions and response costs with respect
[[Page 62598]]
to all releases or threatened releases at or in connection with the
Site.
VI. Order
15. Based upon the Information currently known to the United States
and the Statement of Facts and Determinations set forth above, and in
consideration of the promises and covenants set forth herein, the
following is hereby Agreed to and Ordered;
VII. Parties Bound
16. This Consent Order shall apply to and be binding upon EPA and
upon Respondents and their successors and assigns. Any change in
ownership or corporate or other legal status of the Respondents
including, but not limited to, any transfer of assets or real or
personal property, shall in no way alter such Respondents'
responsibilities under this Consent Order. Each signatory to this
Consent Order certifies that he or she is authorized to enter into the
terms and conditions of this Consent Order and to execute and bind
legally the party represented by him or her.
VIII. Certification of Respondents
17. By signing this Consent Order, the Respondents certify that, to
the best of their knowledge and belief, they have:
i. conducted a thorough, comprehensive, good faith search for
documents, and have fully and accurately disclosed to EPA, all non-
privileged documents currently in their possession, or in the
possession of their officers, directors, employees, contractors or
agents, which relate in any way to their liabilities under CERCLA and
RCRA for ownership, operation, exploration activities or control of the
Site;
ii. not altered, mutilated, discarded, destroyed, or otherwise
disposed of any records, documents, or other information relating to
their potential CERCLA and RCRA liabilities regarding the Site after
notification of such potential liabilities; and
iii. fully complied to EPA's satisfaction with any and all EPA
requests for information pursuant to Sections 104(e) and 122(e) of
CERCLA, 42 U.S.C. 9604(e) and 9622(e).
IX. Covenants Not To Sue
18. a. Except as provided in Section X (Reservation of Rights) of
this Order, the United States covenants not to sue or take any other
civil or administrative action against the Respondents for
reimbursement of response costs or for injunctive relief pursuant to
Section 106 or 107(a) of CERCLA, 42 U.S.C. 9606 or 9607(a) or Section
7003 of the Resource Conservation and Recovery Act, as amended, 42
U.S.C. 6973, relating to the Site.
b. The United States' covenant not to sue extends to Respondents
and to their affiliates, successors and assigns, but only to the extent
that the liability of such affiliates, successors and assigns is
derivative of Respondents' liability for those acts set forth in
Paragraph 9, Section IV of this Order. The United States' covenant not
to sue does not extend to any other person.
X. Reservation of Rights
19. The covenant not to sue by the United States set forth in
Paragraph 18 of this Order does not pertain to any matters other than
those expressly specified in Paragraph 18. The United States reserves,
and this Order is without prejudice to, all rights against the
Respondents with respect to all other matters, including but not
limited to the following:
(a) criminal liability;
(b) any liability against Respondents that results from their future
disposal activities at the Site; or
(c) liability for damages for injury to, destruction of, or loss of
natural resources, including any cost of assessing the injury to,
destruction of, or loss of such natural resources.
20. Notwithstanding any other provision in this Consent Order, the
United States reserves, and this Consent Order is without prejudice to,
the right to institute judicial or administrative proceedings against
the Respondents seeking to compel Respondents to perform response
actions at the Site and/or to reimburse the United States for response
costs if New Information is discovered that the Respondents no longer
qualify for a de micromis settlement under the criteria stated in
Paragraphs 10-12 of this Order.
21. For purposes of Paragraph 20, ``New Information'' shall not
include any recalculation of the total volume of waste rock, tailings
or mine waste containing hazardous substances requiring remediation at
the Site based solely on Information currently known to the United
States.
XI. Covenant Not To Sue By Respondents
22. The Respondents covenant not to sue and agree not to assert any
claims or causes of action against the United States, or its
contractors or employees with respect to the Site or this Order,
including, but not limited to:
i. any direct or indirect claim for reimbursement from the
Hazardous Substance Superfund (established pursuant to the Internal
Revenue Code, 26 U.S.C. 9507) through Sections 106(b)(2) , 111, 112 or
113 of CERCLA, 42 U.S.C. 9606(b)(2) , 9611, 9612 or 9613;
ii. any claim arising out of response activities at the Site; and
iii. any claim against the United States pursuant to Sections 107
or 113 of CERCLA, 42 U.S.C. 9607 or 9613, relating to the Site.
23. Nothing in this Order shall be deemed to constitute
preauthorization of a claim within the meaning of Section 111 of
CERCLA, 42 U.S.C. 9611, or 40 CFR 300.700(d).
24. The Respondents also waive any challenge they may have to any
response action selected in any Action Memorandum, Interim Record of
Decision or final Record of Decision for the Site.
XII. Effect of Settlement; Contribution Protection
25. Nothing in this Order shall be construed to create any rights
in, or grant any cause of action to, any person not a party to this
Order. The preceding sentence shall not be construed to waive or
nullify any rights that any person not a signatory to this Order may
have under applicable law. The United States and the Respondents each
reserve 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.
26. Respondents consent and agree to comply with and be bound by
the term of this Order. The United States and the Respondents agree
that this Order, Respondents' consent to this Order and actions in
accordance with this Order shall not in any way constitute or be
construed as an admission of any liability by Respondents or of any
legal or factual matters set forth in this Order. Further, neither this
Order, Respondents' consent to this Order, nor Respondents' actions in
accordance with this Order shall be admissible in evidence against
Respondents without their consent, except in a proceeding to enforce
this Order. Respondents do not admit, and retain the right to
controvert in any subsequent proceedings other than proceedings to
implement or enforce this Consent Order, the validity of the Statement
of Facts and Determinations contained in this Consent Order.
27. With regard to claims for contribution against Respondents and
their affiliates, successors and assigns for matters addressed by this
Order, the Parties hereto agree that Respondents
[[Page 62599]]
and their affiliates, successors and assigns are entitled, as of the
effective date this Order, to such protection from contribution actions
or claims as is provided by Sections 113(f)(2) and 122(g)(5) of CERCLA,
42 U.S.C. 9613(f)(2) and 9622(g)(5) for ``matters addressed'' in this
Consent Order. ``Matters addressed'' by this Order shall include all
claims the United States has taken or brought or could bring or any
other civil or administrative action the United States could take
against Respondents, or their affiliates, successors and assigns only
to the extent that their liability is derivative of Respondents'
liability for those acts set forth in Paragraph 9, Section IV of this
Order, for injunctive relief or for reimbursement of response costs
pursuant to Section 106 or 107(a) of CERCLA, 42 U.S.C. 9606 or 9607(a)
or Section 7003 of the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. 6973, related to the Site.
XIII. Public Comment
28. This Order shall be subject to a thirty-day public comment
period in accordance with Section 122(i) of CERCLA, 42 U.S.C. 9622(i).
In accordance with Section 122(i)(3), 42 U.S.C. 9622(i)(3), EPA may
withdraw or modify its consent to this order if comments received
disclose any facts or considerations which indicate that this Order is
inappropriate, improper, or inadequate.
XIV. Attorney General Approval
29. The Attorney General or her designee has approved the
settlement embodied in this order in accordance with Section 122(g)(4)
of CERCLA, 42 U.S.C. 9622(g)(4).
XV. Effective Date
30. The effective date of this Order shall be the date upon which
the Assistant Regional Administrator, EPA Region VIII notifies the
Respondents that the public comment period undertaken pursuant to
Paragraph 28 of this Order has closed and that comments received, if
any, do not require EPA's withdrawal from or the modification of any
terms of this Order.
It is so agreed:
Newmont Mining Corporation, Newmont Exploration Limited and Newmont
Gold Company.
Dated: July 28, 1997.
Joy E. Hansen,
Vice President.
It is so ordered and agreed:
Environmental Protection Agency, Region VIII.
Dated: September 2, 1997.
Martin Hestmark, for Carol Rushin,
Assistant Regional Administrator, Office of Enforcement, Compliance and
Environmental Justice.
CERCLA Section 122(g)(4) De Minimis Waste Contributor Administrative
Order
In The Matter Of: Summitville Mine Superfund Site, Site No. 08-
Y3; ARCO Environmental Remediation, L.L.C.; Respondent.
Proceeding Under Section 122(g)(4) Of The Comprehensive
Environmental Response, Compensation, And Liability Act, As Amended
(42 U.S.C. 9622(g)(4)). EPA Docket Number CERCLA-VIII-98-03.
I. Jurisdiction
1. This Administrative Order on Consent (Consent Order or Order) is
issued pursuant to the authority vested in the President of the United
States by Section 122(g)(4) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (CERCLA),
42 U.S.C. 9622(g)(4), to reach settlements in actions under Section 106
or 107 of CERCLA, 42 U.S.C. 9606 or 9607. The authority vested in the
President has been delegated to the Administrator of the United States
Environmental Protection Agency (EPA) by Executive Order 12580, 52 FR
2923 (Jan. 29, 1987), and further delegated to the Regional
Administrators of the EPA by EPA Delegation No. 14-14-E. This authority
has been redelegated to the Assistant Regional Administrator for
Ecosystems Protection and Remediation.
2. This Order is issued to ARCO Environmental Remediation, L.L.C.
(Respondent). The Respondent agrees to undertake all actions required
by this Consent Order. The Respondent further consents to and will not
contest EPA's jurisdiction to issue this Consent Order or to implement
or enforce its terms.
II. Statement of Purpose
3. By entering into this Consent Order, the mutual objectives of
the Parties are:
a. to reach a final settlement between the Parties with respect to
the Site pursuant to Section 122(g) of CERCLA, 42 U.S.C. 9622(g), that
allows Respondent to make a cash payment, including a premium, to
resolve its alleged civil liability under Sections 106 and 107 of
CERCLA, 42 U.S.C. 9606 and 9607 and Section 7003 of the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. 6973, for
injunctive relief with regard to the Site, and for response costs
incurred and to be incurred at or in connection with the Site, thereby
reducing litigation relating to the Site;
b. to simplify any remaining administrative and judicial
enforcement activities concerning the Site by eliminating one of the
potentially responsible parties from further involvement at the Site;
and
c. to obtain settlement with Respondent for its fair share, as
determined by EPA, of response costs incurred and to be incurred at or
in connection with the Site by the EPA Hazardous Substance Superfund,
and to provide full and complete contribution protection for Respondent
with regard to the Site pursuant to Sections 122(f)(2) and 122(g)(5) of
CERCLA, 42 U.S.C. 9622(f)(2) and 9622(g)(5).
III. Definitions
Unless otherwise expressly provided herein, terms used in this
Consent Order that are defined in CERCLA or in regulations promulgated
under CERCLA shall have the meaning assigned to them in the statute or
regulations. Whenever the terms listed below are used in this Consent
Order, the following definitions shall apply:
CERCLA shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601, et
seq.
Consent Order or Order shall mean this Administrative Order on
Consent and all appendices attached hereto. In the event of conflict
between this Order and any appendix, the Order shall control.
Day shall mean a calendar day. 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.
EPA Hazardous Substance Superfund shall mean the Hazardous
Substance Superfund established by the Internal Revenue Code, 26 U.S.C.
9507.
Information currently known to the United States shall mean that
information and those documents contained in the Administrative Record
and Site File for the Site as of the effective date of this Order.
Interest shall mean interest at the rate specified for interest on
investments of the EPA Hazardous Substance Superfund established by 26
U.S.C. 9507, compounded on October 1 of each year, in accordance with
42 U.S.C. 9607(a).
[[Page 62600]]
New Information shall mean information not contained in the
Administrative Record or Site File for the Site as of the effective
date of this Order.
Paragraph shall mean a portion of this Consent Order identified by
an Arabic numeral.
Parties shall mean EPA and the Respondent.
Respondent shall mean ARCO Environmental Remediation, L.L.C.
Response Costs shall mean all costs of ``response'' as that term is
defined by Section 101(25) of CERCLA.
Section shall mean a portion of this Consent Order identified by a
roman numeral.
Site shall mean the Summitville Mine Superfund Site Remedial
Investigation/Feasibility Study Area within Rio Grande County,
Colorado. Approximately 550 acres of the Site, known as the Summitville
Minesite, have been disturbed by mining activities and is currently
undergoing remedial action. As depicted on the map attached as Appendix
A, the Site consists of portions of the Alamosa River Watershed EPA
believes may have been impacted by releases of hazardous substances
from the Summitville Minesite. More specifically, the Site includes the
following areas: Area 1-Summitville Mine Site--The area within the mine
permit boundaries; Area 2-Wightman Fork--The Wightman Fork and
associated wetlands between the down stream mine permit boundary to the
confluence with the Alamosa River; Area 3-Alamosa River--The Alamosa
River and associated wetlands from the confluence with the Wightman
Fork downstream to the inlet of the Terrace Reservoir; Area 4-Terrace
Reservoir--The area which contains the Terrace Reservoir; and Area 5-
Below Terrace Reservoir--The area below the Terrace Reservoir which has
been impacted by contamination transported by the Alamosa River and
irrigation canals.
United States shall mean the United States of America, including
its departments, agencies and instrumentalities.
IV. Statement of Facts
EPA's Response Actions and Costs
4. The United States Environmental Protection Agency (EPA)
initiated removal response actions at the Site on December 18, 1992 to
address releases or threatened releases of hazardous substances into
the Alamosa River and surrounding environment pursuant to the
President's authority under Sections 104 and 106 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986,
Pub. L. 99-499, 42 U.S.C. 9604 and 9606(a) (CERCLA).
5. On May 31, 1994, EPA listed the Site on the National Priorities
List as a result of releases or threatened releases of hazardous
substances at or from the Site.
6. On December 15, 1994, EPA issued 4 Interim Records of Decision
selecting the interim remedial actions to be implemented for the
following activities and/or areas at the Summitville Mine Site: Water
Treatment (WT IROD), Reclamation, the Heap Leach Pad (HLP IROD) and the
Cropsy Waste Pile, Beaver Mud Dump/Summitville Dam Impoundment, and
Mine Pits (CWP IROD).
7. As of March 31, 1997, the United States had incurred
approximately $109 million in response costs responding to the release
or threatened release of hazardous substances at or in connection with
the Site. The United States continues to incur response costs in
responding to the release or threat of release of hazardous substances
at or in connection with the Site.
Respondent's Activities and Potential Liability
8. EPA alleges that the Respondent is liable for reimbursement of
the United States' response costs pursuant to Section 107 of CERCLA, 42
U.S.C. 9607.
9. From mid-1979 until the latter part of 1983, Respondent's
predecessor-in-interest, Anaconda Minerals Company (Anaconda),
conducted exploration and related activities at the Site. Due to Site
access limitations, severe weather and other adverse Site conditions,
Anaconda's actual on-Site exploration activities were conducted for an
aggregate period of approximately 17 months, with this period generally
coinciding with the summer season of each of the years of 1979 through
1983.
10. Anaconda's exploration and related activities at the Site, as
referred to in Paragraph 9 above, consisted of: (1) a core drilling
program, consisting of the development of 380 drill holes. In
accordance with the Colorado Mined Land Reclamation Division
regulations applicable at the time, these surface drill holes were
properly plugged with cement and abandoned; (2) limited access to and
exploration of certain underground mine workings, including the Science
Mine, Copper Hill Mine, Dexter Mine, Esmond Mine and Chandler Mine, for
the purpose of mapping and sampling these workings only; (3) related
on-Site activities such as access road maintenance and road
construction; and (4) implementation of a hazard elimination program at
the Site, including tailings dam stabilization work.
11. Based on Anaconda's findings from these limited exploration and
related activities, Anaconda determined it would not be profitable to
initiate mining operations at the Site. Accordingly, Anaconda
terminated or assigned its leasehold interest in the Site in early
1984, without conducting any ore extraction or physical mine
development activities.
12. Anaconda's surface drilling activities resulted in the
generation of, at most, 363 cubic yards of waste rock, which may have
remained on-Site. Waste rock extracted at the Site was mixed with
cement and used to properly plug and close the drill holes, accordance
with the Colorado Mined Land Reclamation Division regulations
applicable at the time. Summitville Consolidated Mining Company Inc.
subsequently mined, milled, processed or otherwise disturbed this same
waste rock as a result of its unrelated mining operations.
De Minimis Eligibility
13. The total volume of waste rock, tailings and other mine waste
(including the Heap Leach Pad) requiring remediation at the Site is
approximately 11 million yds.\3\ Four million, five hundred thousand
cubic yards of this material is being remediated pursuant to the CWP
IROD; 6.5 million cubic yards are being remediated pursuant to the HLP
IROD.
14. According to the WT IROD, approximately 321,000 pounds of
copper per year, if left untreated, would contaminate the receiving
waters surrounding the Site, including the Wightman Fork and Alamosa
River.
15. EPA has determined parties are eligible for a de minimis
settlement if their contribution of mine waste and metals loading is
equal to or less than 3% of the total volume of hazardous substances
contributed to each of these media.
16. EPA has determined that the Respondent's contribution of
hazardous substances to each of these media is below the 3% de minimis
cut-off established by EPA for the Site.
17. Based on Information currently known to the United States, EPA
has calculated the Respondent's de minimis eligibility as follows: (1)
assuming all waste rock, approximately 363 cubic yards, generated by
Anaconda during its drilling program remained on-Site, EPA has
estimated that the amount of hazardous substances allegedly contributed
to the Site by Respondent
[[Page 62601]]
constitutes approximately .0033% of the total volume of waste rock,
tailings or mine waste requiring remediation at the Site; and (2)
because Anaconda's drill holes were properly plugged and it did not
rehabilitate or otherwise undertake mining operations in adits, tunnels
or mine workings hydraulically connected to the Reynolds Adit, the
Respondent's activities have not contributed any copper loading to the
waters at or emanating from the Site.
18. As required by Section 122(g)(1) of CERCLA, 42 U.S.C.
9622(g)(1), EPA has therefore determined that: (A) the amount of
material allegedly contributed by the Respondent is minimal in
comparison to the total hazardous substances generated or disposed of
at the Site; and (B) the toxic or hazardous effect of the hazardous
substances allegedly contributed to the Site by Respondent are minimal
in comparison to the other hazardous substances at the Site.
19. Section 122(g)(1) of CERCLA, 42 U.S.C. 9622(g)(1), further
authorizes EPA to enter into expedited settlements under Sections 106
and 107 of CERCLA if such settlements involve only a minor portion of
the response costs at the facility concerned. EPA estimates that the
total response costs incurred and to be incurred at or in connection
with the Site by the EPA Hazardous Substance Superfund will be $152
million. EPA calculated the settlement amount to be paid by Respondent
as follows: EPA and Respondent agree that the material generated and
disposed of by Respondent came to be located in the areas to be
remediated pursuant to CWP and HLP IRODs. EPA and Respondent estimated
that of the 363 cubic yards of material generated and disposed of by
Respondent on the Site, 123 cubic yards came to be located in the area
to be remediated by the CWP and 240 cubic yards came to be located in
the HLP. EPA then calculated the appropriate settlement amount by: (a)
taking the amount it cost to remediate Respondent's volumetric share of
the CWP; (b) calculating the cost EPA will incur to remediate
Respondent's volumetric share of the HLP; (c) adding a percentage for
Respondent's share of Sitewide costs; (d) estimating the enforcement
costs associated with negotiating and finalizing this AOC; and (e)
applying a 100% ``premium'' payment to Respondent's share of those
estimated costs not yet incurred by EPA. In accordance with applicable
EPA guidance, this 100% ``premium'' payment on estimated costs to be
incurred provides consideration for EPA's granting the Respondent a
covenant not to sue without the normal remedy cost overrun reopener.
20. Based on the factors identified in Paragraph 19 above, EPA
determined that the appropriate amount to settle Respondent's potential
CERCLA Section 106 and 107 and RCRA Section 7003 liabilities is
$95,000. The settlement amount required to be paid by the Respondent
pursuant to this Order therefore represents only a minor portion of the
response costs to be recovered for the cleanup of the Site.
V. Determinations
21. Based upon the Statement of Facts set forth above and on the
Information currently known to the United States, EPA has determined
that:
(1) The Site is a ``facility'' as that term is defined in Section
101(9) of CERCLA, 42 U.S.C. 9601(9).
(2) The Respondent is a ``person'' as that term is defined in
Section 101(21) of CERCLA, 42 U.S.C. 9601(21).
(3) The Respondent is a ``potentially responsible party'' within
the meaning of Section 122(g)(1) of CERCLA, 42 U.S.C. 9622(g)(1).
(4) There has been an actual or threatened ``release'' of a
``hazardous substance'' from the Site as those terms are defined in
Sections 101 (22) and (14) of CERCLA, 42 U.S.C. 9601 (22) and (14).
(5) The amount of hazardous substances contributed to the Site by
the Respondent and the toxic or other hazardous effects of the
hazardous substances contributed to the Site by the Respondent are
minimal in comparison to other hazardous substances at the Site within
the meaning of Section 122(g)(1)(A) of CERCLA, 42 U.S.C. 9622(g)(1)(A).
(6) As to the Respondent, this Consent Order involves only a minor
portion of the response costs at the Site within the meaning of Section
122(g)(1) of CERCLA, 42 U.S.C. 9622(g)(1).
(7) The terms of this Consent Order are consistent with EPA policy
and guidance for settlements with de minimis waste contributors,
including but not limited to, ``Standardizing the De Minimis Premium,''
(July 7, 1995), ``Streamlined Approach for Settling with De Minimis
Waste Contributors under CERCLA Section 122(g)(1)(A),'' OSWER Directive
No. 9834.7-1D (July 30, 1993), and ``Methodology for Early De Minimis
Waste Contributor Settlements under CERCLA Section 122(g)(1)(A),''
OSWER Directive No. 9834.7-1C (June 2, 1992).
(8) Prompt settlement with the Respondent is practicable and in the
public interest within the meaning of Section 122(g)(1) of CERCLA, 42
U.S.C. 9622(g)(1).
(9) The settlement of this case without litigation and without the
admission or adjudication of any issue of fact or law is the most
appropriate means of resolving any liability that the Respondent may
have for response actions and response costs with respect to all
releases or threatened releases at or in connection with the Site.
VI. Order
22. Based upon the Information currently known to the United States
and the Statement of Facts and Determinations set forth above, and in
consideration of the promises and covenants set forth herein, the
following is hereby Agreed to and Ordered:
VII. Parties Bound
23. This Consent Order shall apply to and be binding upon EPA and
upon Respondent and its successors and assigns. Any change in ownership
or corporate or other legal status of the Respondent including, but not
limited to, any transfer of assets or real or personal property, shall
in no way alter such Respondent's responsibilities under this Consent
Order. Each signatory to this Consent Order certifies that he or she is
authorized to enter into the terms and conditions of this Consent Order
and to execute and bind legally the party represented by him or her.
VIII. Payment
24. Within 10 days of the effective date of this Order, Respondents
shall pay a total of $95,000 to the Hazardous Substance Superfund as
provided below.
25. Payment shall be made by cashier's check made payable to ``EPA
Hazardous Substance Superfund.'' The check shall reference the Site
name, the name and address of the Respondent, EPA CERCLA Number 08-Y3
and DOJ Case No. 90-11-3-1133A and shall be sent to: Mellon Bank, EPA
Region VIII, Attn: Superfund Accounting, P.O. Box 360859M, Pittsburgh,
PA 15251.
26. If the Respondent fails to make full payment within the time
required by Paragraph 25, Respondent shall pay Interest on the unpaid
balance. In addition, if Respondent fails to make full payment as
required by Paragraph 25, the United States may, in addition to any
other available remedies or sanctions, bring an action against the
Respondent seeking injunctive relief to compel payment and/or seeking
civil penalties under Section 122(l) of CERCLA, 42 U.S.C. 9622(l), for
failure to make timely payment.
[[Page 62602]]
27. The Respondents' payment includes an amount representing the
Respondent's fair share of: (a) past response costs incurred at or in
connection with the Site; (b) projected future response costs to be
incurred at or in connection with the Site; and (c) a significant
premium to cover the risks associated with this settlement, including
but not limited to, the risk that total response costs incurred or to
be incurred at or in connection with the Site by the EPA Hazardous
Substance Superfund, or by any private party, will exceed the estimated
total response costs upon which Respondent's payment is based.
28. Payments made under this Section may be placed in a site-
specific ``special'' or ``reimbursable'' account by EPA. This site-
specific reimbursable account within the EPA Hazardous Substance
Superfund shall be known as the Summitville Mine Superfund Site Special
Account and shall be retained and used by EPA to conduct or finance the
response actions at or in connection with the Site. Upon completion of
the final remedial action for the Site, any balance remaining in the
Summitville Mine Superfund Site Special Account shall be transferred by
EPA to the general EPA Hazardous Substance Superfund.
IX. Certification of Respondents
29. By signing this Consent Order, the Respondent certifies, that,
to the best of its knowledge and belief, it has:
(1) conducted a thorough, comprehensive, good faith search for
documents, and has fully and accurately disclosed to EPA, all non-
privileged documents currently in its possession, or in the possession
of its officers, directors, employees, contractors or agents, which
relate in any way to its liability under CERCLA and RCRA for ownership,
operation, exploration activities or control of the Site;
(2) not altered, mutilated, discarded, destroyed or otherwise
disposed of any records, documents, or other information relating to
its potential CERCLA and RCRA liability regarding the Site after
notification of such potential liability; and
(3) fully complied to EPA's satisfaction with any and all EPA
requests for information pursuant to Sections 104(e) and 122(e) of
CERCLA, 42 U.S.C. 9604(e) and 9622(e).
X. Covenants Not To Sue
30. a. Except as provided in Section XI (Reservation of Rights) of
this Order, the United States covenants not to sue or take any other
civil or administrative action against the Respondent for reimbursement
of response costs or for injunctive relief pursuant to Section 106 or
107(a) of CERCLA, 42 U.S.C. 9606 or 9607(a) or Section 7003 of the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6973,
relating to the Site. With respect to present and future liability,
this covenant not to sue shall take effect upon full payment of the
amount specified in Section VII (Payment) of this Order.
b. The United States' covenant not to sue extends to Respondent,
and to its predecessors-in-interest, affiliates, successors and
assigns, including the Anaconda Minerals Company and the Atlantic
Richfield Company, only to the extent that the liability of such
predecessors-in-interest, affiliates, successors and assigns is
derivative of Respondent's liability for those acts of Anaconda
Minerals Company as set forth in Paragraph 9-12, Section IV of this
Order. The United States' covenant not to sue does not extend to any
other person.
XI. Reservation of Rights
31. The covenants not to sue by the United States set forth in
Paragraph 30 of this Order do not pertain to any matters other than
those expressly specified in Paragraph 30. The United States reserves,
and this Order is without prejudice to, all rights against the
Respondent with respect to all other matters, including but not limited
to the following:
(a) claims based on a failure to make the payments required by
Section VII (Payment) of this Order;
(b) criminal liability;
(c) any liability against Respondent that results from its future
disposal activities at the Site; or
(d) liability for damages for injury to, destruction of, or loss of
natural resources, including any cost of assessing the injury to,
destruction of, or loss of such natural resources.
32. Notwithstanding any other provision in this Consent Order, the
United States reserves, and this Consent Order is without prejudice to,
the right to institute judicial or administrative proceedings against
the Respondent seeking to compel Respondent to perform response actions
at the Site and/or to reimburse the United States for additional costs
of response if New Information is discovered that the Respondent
contributed: (a) hazardous substances in an amount greater than 1% of
the total volume of waste rock, tailings or mine waste containing
hazardous substances requiring remediation at the Site; or (b)
hazardous substances that contributed to the total copper loading to
the waters at or emanating from the Site; or (c) hazardous substances
at the Site which are significantly more toxic or are of significantly
greater hazardous effect that other hazardous substances at the Site.
33. For purposes of Paragraph 32, ``New Information'' shall not
include: (1) any recalculation of the total volume of waste rock,
tailings or mine waste containing hazardous substances requiring
remediation at the Site based solely on Information currently known to
the United States; (2) any recalculation of the Respondent's
contribution of waste rock, tailings or mine waste containing hazardous
substances requiring remediation at the Site based solely on
Information currently known to the United States; or (3) a calculation
of Anaconda's activities giving rise to a contribution to the total
copper loading to the waters at or emanating from the Site based solely
on Information currently known to the United States.
34. In the event the United States institutes judicial or
administrative proceedings against the Respondent pursuant to Paragraph
32 above, the Respondent shall:
(i) be credited, in any subsequent settlement or administrative or
judicial proceeding relating to the Site, with the $95,000 payment made
pursuant to Paragraph 24 of this Order;
(ii) retain any defense it may have to liability and any claim it
may have under any applicable statute or the common law with regard to
any additional amount demanded by the United States in any subsequent
administrative or judicial proceeding relating to the Site; and
(iii) continue to grant any waiver or covenant previously granted
to the United States under Section XI of this Order for the amount
credited to the Respondent, but such waiver or covenant shall be null
and void as to any additional amount demanded by the United States in
any subsequent administrative or judicial proceeding relating to the
Site.
XII. Covenant Not To Sue By Respondent
35. The Respondent covenants not to sue and agrees not to assert
any claims or causes of action against the United States, or its
contractors or employees with respect to the Site or this Order,
including, but not limited to:
(1) any direct or indirect claim for reimbursement from the
Hazardous Substance Superfund (established pursuant to the Internal
Revenue Code, 26 U.S.C. 9507) through Sections 106(b)(2), 111, 112 or
113 of CERCLA,
[[Page 62603]]
42 U.S.C. 9606(b)(2), 9611, 9612 or 9613;
(2) any claim arising out of response activities at the Site; and
(3) any claim against the United States pursuant to Sections 107 or
113 of CERCLA, 42 U.S.C. 9607 or 9613, relating to the Site.
36. Nothing in this Order shall be deemed to constitute
preauthorization of a claim within the meaning of Section 111 of
CERCLA, 42 U.S.C. 9611, or 40 CFR 300.700(d).
37. The Respondent also waives any challenge it may have to any
response action selected in any Action Memorandum, Interim Record of
Decision or final Record of Decision for the Site.
XIII. Effect of Settlement; Contribution Protection
38. Nothing in this Order shall be construed to create any rights
in, or grant any cause of action to, any person not a party to this
Order. The preceding sentence shall not be construed to waive or
nullify any rights that any person not a signatory to this Order may
have under applicable law. The United States and the Respondent each
reserve 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.
39. Respondent consents and agrees to comply with and be bound by
the terms of this Order. The United States and the Respondent agree
that this Order, Respondent's consent to this Order and actions in
accordance with this Order shall not in any way constitute or be
construed as an admission of any liability by Respondent or of any
legal or factual matters set forth in this Order. Further, neither this
Order, Respondent's consent to this Order, nor Respondent's actions in
accordance with this Order shall be admissible in evidence against
Respondent without its consent, except in a proceeding to enforce this
Order. Respondent does not admit, and retains the right to controvert
in any subsequent proceedings other than proceedings to implement or
enforce this Consent Order, the validity of the Statement of Facts and
Determinations contained in this Consent Order.
40. With regard to claims for contribution against the Respondent,
the Parties hereto agree that, as of the effective date of this Order,
the Respondent and its predecessors-in-interest, affiliates, successors
and assigns, including the Anaconda Minerals Company and the Atlantic
Richfield Company, is entitled to such protection from contribution
actions or claims as is provided by Sections 113(f)(2) and 122(g)(5) of
CERCLA, 42 U.S.C. 9613(f)(2) and 9622(g)(5) for ``matters addressed''
in this Consent Order. ``Matters addressed'' by this Order shall
include all claims the United States could bring or any other civil or
administrative action the United States could take against the
Respondent or its predecessors-in-interest, affiliates, successors and
assigns, including the Anaconda Minerals Company and the Atlantic
Richfield Company, for injunctive relief or for reimbursement of
response costs pursuant to Section 106 or 107(a) of CERCLA, 42 U.S.C.
9606 or 9607(a) or Section 7003 of the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. 6973, related to the Site.
XIV. Public Comment
41. This Order shall be subject to a thirty-day public comment
period in accordance with Section 122(i) of CERCLA, 42 U.S.C. 9622(i).
In accordance with Section 122(i)(3), 42 U.S.C. 9622(i)(3), EPA may
withdraw or modify its consent to this Order if comments received
disclose any facts or considerations which indicate that this Order is
inappropriate, improper, or inadequate.
XV. Attorney General Approval
42. The Attorney General or her designee has approved the
settlement embodied in this Order in accordance with Section 122(g)(4)
of CERCLA, 42 U.S.C. 9622(g)(4).
XVI. Effective Date
43. The effective date of this Order shall be the date upon which
the Assistant Regional Administrator, EPA Region VIII notifies the
Respondent that the public comment period undertaken pursuant to
Paragraph 41 of this Order has closed and that comments received, if
any, do not require EPA's withdrawal from or the modification of any
terms of this Order.
It Is So Agreed:
ARCO Environmental Remediation, L.L.C.
Dated: July 2, 1997.
C. Richard Knowles,
President.
It Is So Ordered and Agreed:
Environmental Protection Agency, Region VIII.
Dated: September 2, 1997.
Carol Rushin,
Assistant Regional Administrator, Office of Enforcement, Compliance and
Environmental Justice.
In The Matter Of: Summitville Mine Superfund Site, Site No. 08-
Y3; ASARCO Incorporated; Respondent.
Proceeding Under Section 122(g)(4) Of The Comprehensive
Environmental Response, Compensation, And Liability Act, As Amended
(42 U.S.C. 9622(g)(4)). EPA Docket Number CERCLA-VIII-98-04.
CERCLA Section 122(g)(4) De Minimis Waste Contributor
Administrative Order
I. Jurisdiction
1. This Administrative Order on Consent (Consent Order or Order) is
issued pursuant to the authority vested in the President of the United
States by Section 122(g)(4) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (CERCLA),
42 U.S.C. 9622(g)(4), to reach settlements in actions under Section 106
or 107 of CERCLA, 42 U.S.C. 9606 or 9607. The authority vested in the
President has been delegated to the Administrator of the United States
Environmental Protection Agency (EPA) by Executive Order 12580, 52 FR
2923 (Jan. 29, 1987), and further delegated to the Regional
Administrators of the EPA by EPA Delegation No. 14-14-E. This authority
has been redelegated to the Assistant Regional Administrator for
Ecosystem Protection and Remediation.
2. This Order is issued to ASARCO Incorporated (Respondent). The
Respondent agrees to undertake all actions required by this Consent
Order. The Respondent further consents to and will not contest EPA's
jurisdiction to issue this Consent Order or to implement or enforce its
terms.
II. Statement of Purpose
3. By entering into this Consent Order, the mutual objectives of
the Parties are:
a. to reach a final settlement between the Parties with respect to
the Site pursuant to Section 122(g) of CERCLA, 42 U.S.C. 9622(g), that
allows Respondent to make a cash payment, including a premium, to
resolve its alleged civil liability under Sections 106 and 107 of
CERCLA, 42 U.S.C. 9606 and 9607 and Section 7003 of the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. 6973, for
injunctive relief with regard to the Site, and for response costs
incurred and to be incurred at or in connection with the Site, thereby
reducing litigation relating to the Site;
[[Page 62604]]
b. to simplify any remaining administrative and judicial
enforcement activities concerning the Site by eliminating one of the
potentially responsible parties from further involvement at the Site;
and
c. to obtain settlement with Respondent for its fair share, as
determined by EPA, of response costs incurred and to be incurred at or
in connection with the Site by the EPA Hazardous Substance Superfund,
and to provide full and complete contribution protection for Respondent
with regard to the Site pursuant to Sections 122(f)(2) and 122(g)(5) of
CERCLA, 42 U.S.C. 9622(f)(2) and 9622(g)(5).
III. Definitions
Unless otherwise expressly provided herein, terms used in this
Consent Order that are defined in CERCLA or in regulations promulgated
under CERCLA shall have the meaning assigned to them in the statute or
regulations. Whenever the terms listed below are used in this Consent
Order, the following definitions shall apply:
CERCLA shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601, et
seq.
Consent Order or Order shall mean this Administrative Order on
Consent and all appendices attached hereto. In the event of conflict
between this Order and any appendix, the Order shall control.
Day shall mean a calendar day. 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.
EPA Hazardous Substance Superfund shall mean the Hazardous
Substance Superfund established by the Internal Revenue Code, 26 U.S.C.
9507.
Information currently known to the United States shall mean that
information and those documents contained in the Administrative Record
and Site File for the Site as of the effective date of this Order.
Interest shall mean interest at the rate specified for interest on
investments of the EPA Hazardous Substance Superfund established by 26
U.S.C. 9507, compounded on October 1 of each year, in accordance with
42 U.S.C. 9607(a).
New Information shall mean information not contained in the
Administrative Record or Site File for the Site as of the effective
date of this Order.
Paragraph shall mean a portion of this Consent Order identified by
an Arabic numeral.
Parties shall mean EPA and the Respondent.
Respondent shall mean ASARCO Incorporated.
Response Costs shall mean all costs of ``response'' as that term is
defined by Section 101(25) of CERCLA.
Section shall mean a portion of this Consent Order identified by a
roman numeral.
Site shall mean the Summitville Mine Superfund Site Remedial
Investigation/Feasibility Study Area within Rio Grande County,
Colorado. Approximately 550 acres of the Site, known as the Summitville
Minesite, have been disturbed by mining activities and is currently
undergoing remedial action. As depicted on the map attached as Appendix
A, the Site consists of portions of the Alamosa River Watershed EPA
believes may have been impacted by releases of hazardous substances
from the Summitville Minesite. More specifically, the Site includes the
following areas: Area 1-Summitville Mine Site--The area within the mine
permit boundaries; Area 2-Wightman Fork--The Wightman Fork and
associated wetlands between the down stream mine permit boundary to the
confluence with the Alamosa River; Area 3-Alamosa River--The Alamosa
River and associated wetlands from the confluence with the Wightman
Fork downstream to the inlet of the Terrace Reservoir; Area 4-Terrace
Reservoir--The area which contains the Terrace Reservoir; and Area 5-
Below Terrace Reservoir--The area below the Terrace Reservoir which has
been impacted by contamination transported by the Alamosa River and
irrigation canals.
United States shall mean the United States of America, including
its departments, agencies and instrumentalities.
IV. Statement of Facts
4. The United States Environmental Protection Agency (EPA)
initiated removal response actions at the Site on December 18, 1992 to
address releases or threatened releases of hazardous substances into
the Alamosa River and surrounding environment pursuant to the
President's authority under Sections 104 and 106 of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986,
Pub. L. 99-499, 42 U.S.C. 9604 and 9606(a) (CERCLA).
5. On May 31, 1994, EPA listed the Site on the National Priorities
List as a result of releases or threatened releases of hazardous
substances at or from the Site.
6. On December 15, 1994, EPA issued 4 Interim Records of Decision
selecting the interim remedial actions to be implemented for the
following activities and/or areas at the Summitville Mine Site: Water
Treatment (WT IROD), Reclamation, the Heap Leach Pad (HLP IROD) and the
Cropsy Waste Pile, Beaver Mud Dump/Summitville Dam Impoundment, and
Mine Pits (CWP IROD).
7. As of March 31, 1997, the United States incurred approximately
$109 million in response costs responding to the release or threatened
release of hazardous substances at or in connection with the Site. The
United States continues to incur response costs in responding to the
release or threat of release of hazardous substances at or in
connection with the Site.
8. EPA alleges that the Respondent is liable for reimbursement of
the United States' response costs pursuant to Section 107 of CERCLA, 42
U.S.C. 9607.
9. Respondent conducted sporadic exploration and related activities
from 1974 through 1980 under a lease that expired in 1981. ASARCO's
exploration program consisted of a systematic program of percussion and
diamond core drilling, aimed at determining the ore reserves and the
viability of conducting mining operations at the Site. First, ASARCO
drilled 2 deep holes, to depths of 3,000 and 4,700 feet, respectively,
to test its theory that a large porphyry-type copper deposit was
present at the Site. In 1975, ASARCO drilled 396 shallow holes and 14
deep holes as part of this drilling program. ASARCO also conducted
backhoe trenching as part of its exploration program to generally
define the boundaries of outcrops and underground mineral deposits. It
is estimated that approximately 31 tons of material was generated from
ASARCO's drilling program, some or all of which is believed to have
been removed from the Site for sampling and analysis.
10. ASARCO dug 49 trenches amounting to 15,213 linear feet, with an
average depth of 6 feet. The procedure for sampling these trenches was
to collect approximately \1/2\ pound per linear foot of trench. This
sampling effort would have amounted in 2.9 tons of waste material
disturbed by ASARCO remaining on-site. The trenches were backfilled and
revegetated in accordance with contemporary mining practices and
Colorado Mined Land Reclamation Board requirements.
[[Page 62605]]
11. ASARCO also evaluated several adits, including the Copper Hill,
Del Norte, Upper Highland Mary, Esmond, Science, Narrow Gauge, Aztec,
Old Pickens, Chandler, Iowa and French adits. A total of 3,915 feet was
cleared of ice and mapped and 2,110 feet of these adits was sampled and
assayed by ASARCO. The adit rehabilitation program was abandoned,
without ASARCO either retimbering or otherwise conducting any
rehabilitation activities.
12. As of August 1976, ASARCO also abandoned its plan to dewater
and rehabilitate the Missionary Shaft or its underworkings. ASARCO did
not conduct any rehabilitation or mining activities at the Missionary
Shaft or its associated underworkings.
13. Based on the data available to the Parties, EPA and Respondent
estimate that the amount of material generated as a result of ASARCO's
limited exploration activities amounts to approximately 31 tons or 25
yds.\3\ EPA and ASARCO also agree that its limited diamond drilling
program may have disturbed approximately 0.14 acre of the surface of
the Site. EPA and ASARCO also agree that the actual amount of time
ASARCO conducted its exploration activities lasted a total of
approximately 16 months.
14. On July 1, 1987, Hydrometrics, Inc. became a wholly-owned
subsidiary of ASARCO. As documented in ASARCO's CERCLA Section 104(e)
information request response, Hydrometrics, Inc. performed certain
testing, sampling and data compilation functions as a contractor or
consultant to Galactic Resources, Ltd. or its wholly-owned
subsidiaries, including Galactic Resources, Inc., Galactic Services,
Inc. or Summitville Consolidated Mining Company, Inc. There is no
indication, however, that any of Hydrometrics' activities resulted in
the generation or disposal of any waste materials on-site.
15. The total volume of waste rock, tailings and other mine waste
(including the Heap Leach Pad) requiring remediation at the Site is
approximately 11 million yds.\3\ According to the WT IROD,
approximately 321,000 pounds of copper per year, if left untreated,
would contaminate the receiving waters surrounding the Site, including
the Wightman Fork and Alamosa River. EPA has determined parties are
eligible for a de minimis settlement if their contribution of mine
waste and metals loading is equal to or less than 3% of the total
volume of hazardous substances contributed to each of these media. The
Respondent's contribution of hazardous substances to these media are
below the 3% de minimis cut-off established by EPA for the Site.
16. Based on Information currently known to the United States, EPA
has calculated the Respondent's de minimis eligibility as follows: EPA
has estimated that the amount of hazardous substances allegedly
contributed to the Site by Respondents constitutes substantially less
than 1% of the total volume of waste rock, tailings or mine waste
requiring remediation at the Site. EPA has also determined that the
Respondent's activities have not contributed any copper loading to the
waters at or emanating from the Site.
17. The material allegedly generated and disposed of by the
Respondent therefore involves only a minor portion of the total
hazardous substances generated or disposed of at the Site. EPA has also
concluded that the hazardous substances allegedly contributed to the
Site by Respondent are not significantly more toxic or of significantly
greater hazardous effect than other hazardous substances at the Site.
18. EPA estimates that the total response costs incurred and to be
incurred at or in connection with the Site by the EPA Hazardous
Substance Superfund will be $152 million. The payment required to be
made by the Respondent pursuant to this Order represents only a minor
portion of the response costs to be recovered for the cleanup of the
Site.
V. Determinations
19. Based upon the Statement of Facts set forth above and on the
Information currently known to the United States, EPA has determined
that:
(1) The Site is a ``facility'' as that term is defined in Section
101(9) of CERCLA, 42 U.S.C. 9601(9).
(2) The Respondent is a ``person'' as that term is defined in
Section 101(21) of CERCLA, 42 U.S.C. 9601(21).
(3) The Respondent is a ``potentially responsible party'' within
the meaning of Section 122(g)(1) of CERCLA, 42 U.S.C. 9622(g)(1).
(4) There has been an actual or threatened ``release'' of a
``hazardous substance'' from the Site as those terms are defined in
Sections 101 (22) and (14) of CERCLA, 42 U.S.C. 9601 (22) and (14).
(5) The amount of hazardous substances contributed to the Site by
the Respondent and the toxic or other hazardous effects of the
hazardous substances contributed to the Site by the Respondent are
minimal in comparison to other hazardous substances at the Site within
the meaning of Section 122(g)(1)(A) of CERCLA, 42 U.S.C. 9622(g)(1)(A).
(6) As to the Respondent, this Consent Order involves only a minor
portion of the response costs at the Site within the meaning of Section
122(g)(1) of CERCLA, 42 U.S.C. 9622(g)(1).
(7) The terms of this Consent Order are consistent with EPA policy
and guidance for settlements with de minimis waste contributors,
including but not limited to, ``Standardizing the De Minimis Premium,''
(July 7, 1995), ``Streamlined Approach for Settling with De Minimis
Waste Contributors under CERCLA Section 122(g)(1)(A),'' OSWER Directive
No. 9834.7-1D (July 30, 1993), and ``Methodology for Early De Minimis
Waste Contributor Settlements under CERCLA Section 122(g)(1)(A),''
OSWER Directive No. 9834.7-1C (June 2, 1992).
(8) Prompt settlement with the Respondent is practicable and in the
public interest within the meaning of Section 122(g)(1) of CERCLA, 42
U.S.C. 9622(g)(1).
(9) The settlement of this case without litigation and without the
admission or adjudication of any issue of fact or law is the most
appropriate means of resolving any liability that the Respondent may
have for response actions and response costs with respect to all
releases or threatened releases at or in connection with the Site.
VI. Order
20. Based upon the Information currently known to the United States
and the Statement of Facts and Determinations set forth above, and in
consideration of the promises and covenants set forth herein, the
following is hereby Agreed to and ordered:
VII. Parties Bound
21. This Consent Order shall apply to and be binding upon EPA and
upon Respondent and its successors and assigns. Any change in ownership
or corporate or other legal status of the Respondent including, but not
limited to, any transfer of assets or real or personal property, shall
in no way alter such Respondent's responsibilities under this Consent
Order. Each signatory to this Consent Order certifies that he or she is
authorized to enter into the terms and conditions of this Consent Order
and to execute and bind legally the party represented by him or her.
VIII. Payment
22. Within 10 days of the effective date of this Order, Respondents
shall pay a total of $86,052.73 to the Hazardous Substance Superfund as
provided below.
23. Payment shall be made by cashier's check made payable to ``EPA
[[Page 62606]]
Hazardous Substance Superfund.'' The check shall reference the Site
name, the name and address of the Respondent, EPA CERCLA Number 08-Y3
and DOJ Case No. 90-11-3-1133A and shall be sent to: Mellon Bank, PA
Region VIII, Attn: Superfund Accounting, P.O. Box 360859M, Pittsburgh,
PA 15251.
24. If the Respondent fails to make full payment within the time
required by Paragraph 22, Respondent shall pay Interest on the unpaid
balance. In addition, if Respondent fails to make full payment as
required by Paragraph 22, the United States may, in addition to any
other available remedies or sanctions, bring an action against the
Respondent seeking injunctive relief to compel payment and/or seeking
civil penalties under Section 122(l) of CERCLA, 42 U.S.C. 9622(l), for
failure to make timely payment.
25. The Respondent's payment includes an amount representing the
Respondent's fair share of: (a) past response costs incurred at or in
connection with the Site; (b) projected future response costs to be
incurred at or in connection with the Site; and (c) a premium to cover
the risks associated with this settlement, including but not limited
to, the risk that total response costs incurred or to be incurred at or
in connection with the Site by the EPA Hazardous Substance Superfund,
or by any private party, will exceed the estimated total response costs
upon which Respondent's payment is based.
26. Payments made under this Section may be placed in a site-
specific ``special'' or ``reimbursable'' account by EPA. This site-
specific reimbursable account within the EPA Hazardous Substance
Superfund shall be known as the Summitville Mine Superfund Site Special
Account and shall be retained and used by EPA to conduct or finance the
response actions at or in connection with the Site. Upon completion of
the final remedial action for the Site, any balance remaining in the
Summitville Mine Superfund Site Special Account shall be transferred by
EPA to the general EPA Hazardous Substance Superfund.
IX. Certification of Respondents
27. By signing this Consent Order, the Respondent certifies, that,
to the best of its knowledge and belief, it has:
(1) conducted a thorough, comprehensive, good faith search for
documents, and has fully and accurately disclosed to EPA, all non-
privileged documents currently in its possession, or in the possession
of its officers, directors, employees, contractors or agents, which
relates in any way to its liability under CERCLA and RCRA for
ownership, operation, exploration activities or control of the Site;
(2) not altered, mutilated, discarded, destroyed or otherwise
disposed of any records, documents, or other information relating to
its potential CERCLA and RCRA liability regarding the Site after
notification of such potential liability; and
(3) fully complied to EPA's satisfaction with any and all EPA
requests for information pursuant to Sections 104(e) and 122(e) of
CERCLA, 42 U.S.C. 9604(e) and 9622(e).
X. Covenants Not To Sue
28. a. Except as provided in Section XI (Reservation of Rights) of
this Order, the United States covenants not to sue or take any other
civil or administrative action against the Respondent for reimbursement
of response costs or for injunctive relief pursuant to Section 106 or
107(a) of CERCLA, 42 U.S.C. 9606 or 9607(a) or Section 7003 of the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6973,
relating to the Site. With respect to present and future liability,
this covenant not to sue shall take effect upon full payment of the
amount specified in Section VII (Payment) of this Order.
b. The United States' covenant not to sue extends to Respondent,
and to its predecessors-in-interest, affiliates, successors and
assigns, including Hydrometrics, Inc., only to the extent that the
liability of such predecessors-in-interest, affiliates, successors and
assigns is derivative of Respondent's liability for those acts set
forth in Paragraph 9-14, Section IV of this Order. The United States'
covenant not to sue does not extend to any other person.
XI. Reservation of Rights
29. The covenants not to sue by the United States set forth in
Paragraph 28 of this Order do not pertain to any matters other than
those expressly specified in Paragraph 28. The United States reserves,
and this Order is without prejudice to, all rights against the
Respondent with respect to all other matters, including but not limited
to the following:
(a) claims based on a failure to make the payments required by
Section VII (Payment) of this Order;
(b) criminal liability;
(c) any liability against Respondent that results from its future
disposal activities at the Site; or
(d) liability for damages for injury to, destruction of, or loss of
natural resources, including any cost of assessing the injury to,
destruction of, or loss of such natural resources.
30. Notwithstanding any other provision in this Consent Order, the
United States reserves, and this Consent Order is without prejudice to,
the right to institute judicial or administrative proceedings against
the Respondent seeking to compel Respondent to perform response actions
at the Site and/or to reimburse the United States for additional costs
of response if New Information is discovered that the Respondent
contributed: (a) hazardous substances in an amount greater than 1% of
the total volume of waste rock, tailings or mine waste containing
hazardous substances requiring remediation at the Site; or (b)
hazardous substances that contributed to the total copper loading to
the waters at or emanating from the Site; or (c) hazardous substances
at the Site which are significantly more toxic or are of significantly
greater hazardous effect that other hazardous substances at the Site.
31. For purposes of Paragraph 30, ``New Information'' shall not
include any recalculation of the total volume of waste rock, tailings
or mine waste containing hazardous substances requiring remediation at
the Site based solely on Information currently known to the United
States.
32. In the event the United States institutes judicial or
administrative proceedings against the Respondent pursuant to Paragraph
30 above, the Respondent shall:
(i) be credited, in any subsequent settlement or administrative or
judicial proceeding relating to the Site, with the $86,052.73 payment
made pursuant to Paragraph 22 of this Order;
(ii) retain any defense it may have to liability and any claim it
may have under any applicable statute or the common law with regard to
any additional amount demanded by the United States in any subsequent
administrative or judicial proceeding relating to the Site; and
(iii) continue to grant any waiver or covenant previously granted
to the United States under Section XI of this Order for the amount
credited to the Respondent, but such waiver or covenant shall be null
and void as to any additional amount demanded by the United States in
any subsequent administrative or judicial proceeding relating to the
Site.
XII. Covenant Not To Sue By Respondent
33. The Respondent covenants not to sue and agrees not to assert
any claims or causes of action against the United States, or its
contractors or employees
[[Page 62607]]
with respect to the Site or this Order, including, but not limited to:
(1) any direct or indirect claim for reimbursement from the
Hazardous Substance Superfund (established pursuant to the Internal
Revenue Code, 26 U.S.C. 9507) through Sections 106(b)(2), 111, 112 or
113 of CERCLA, 42 U.S.C. 9606(b)(2), 9611, 9612 or 9613;
(2) any claim arising out of response activities at the Site; and
(3) any claim against the United States pursuant to Sections 107 or
113 of CERCLA, 42 U.S.C. 9607 or 9613, relating to the Site.
34. Nothing in this Order shall be deemed to constitute
preauthorization of a claim within the meaning of Section 111 of
CERCLA, 42 U.S.C. 9611, or 40 CFR Sec. 300.700(d).
35. The Respondent also waives any challenge it may have to any
response action selected in any Action Memorandum, Interim Record of
Decision or final Record of Decision for the Site.
XIII. Effect of Settlement; Contribution Protection
36. Nothing in this Order shall be construed to create any rights
in, or grant any cause of action to, any person not a party to this
Order. The preceding sentence shall not be construed to waive or
nullify any rights that any person not a signatory to this Order may
have under applicable law. The United States and the Respondents each
reserve 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.
37. Respondent consents and agrees to comply with and be bound by
the terms of this Order. The United States and the Respondent agree
that this Order, Respondent's consent to this Order and actions in
accordance with this Order shall not in any way constitute or be
construed as an admission of any liability by Respondents or of any
legal or factual matters set forth in this Order. Further, neither this
Order, Respondent's consent to this Order, nor Respondent's actions in
accordance with this Order shall be admissible in evidence against
Respondent without its consent, except in a proceeding to enforce this
Order. Respondent does not admit, and retains the right to controvert
in any subsequent proceedings other than proceedings to implement or
enforce this Consent Order, the validity of the Statement of Facts and
Determinations contained in this Consent Order.
38. With regard to claims for contribution against the Respondent,
the Parties hereto agree that, as of the effective date this Order, the
Respondent and its predecessors-in-interest, affiliates, successors and
assigns, including Hydrometrics, Inc., is entitled to such protection
from contribution actions or claims as is provided by Sections
113(f)(2) and 122(g)(5) of CERCLA, 42 U.S.C. 9613(f)(2) and 9622(g)(5)
for ``matters addressed'' in this Consent Order. ``Matters addressed''
by this Order shall include all claims the United States could bring or
any other civil or administrative action the United States could take
against the Respondent or its predecessors-in-interest, affiliates,
successors and assigns, including Hydrometrics, Inc., for injunctive
relief or for reimbursement of response costs pursuant to Section 106
or 107(a) of CERCLA, 42 U.S.C. 9606 or 9607(a) or Section 7003 of the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6973,
related to the Site.
XIV. Public Comment
39. This Order shall be subject to a thirty-day public comment
period in accordance with Section 122(i) of CERCLA, 42 U.S.C. 9622(i).
In accordance with Section 122(i)(3), 42 U.S.C. 9622(i)(3), EPA may
withdraw or modify its consent to this Order if comments received
disclose any facts or considerations which indicate that this Order is
inappropriate, improper, or inadequate.
XV. Attorney General Approval
40. The Attorney General or her designee has approved the
settlement embodied in this Order in accordance with Section 122(g)(4)
of CERCLA, 42 U.S.C. 9622(g)(4).
XVI. Effective Date
41. The effective date of this Order shall be the date upon which
the Assistant Regional Administrator, EPA Region VIII notifies the
Respondent that the public comment period undertaken pursuant to
Paragraph 39 of this Order has closed and that comments received, if
any, do not require EPA's withdrawal from or the modification of any
terms of this Order.
It is so agreed:
ASARCO Incorporated
Dated: February 2, 1997.
Michael O. Varner,
Vice President, Environmental Operations.
It is so ordered and agreed:
Environmental Protection Agency, Region VIII.
Dated: September 2, 1997.
Martin Hestmark for Carol Rushin,
Assistant Regional Administrator, Office of Enforcement, Compliance and
Environmental Justice.
[FR Doc. 97-30822 Filed 11-21-97; 8:45 am]
BILLING CODE 6560-50-P
