[Federal Register Volume 60, Number 234 (Wednesday, December 6, 1995)]
[Notices]
[Pages 62446-62456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29745]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5340-5]
Superfund Program; Final Model CERCLA Past Costs Consent Decree
and Administrative Agreement
AGENCY: Environmental Protection Agency.
ACTION: Notice.
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SUMMARY: The Agency is publishing today the final ``Model CERCLA
Section 107 Consent Decree for Recovery of Past Response Costs'' and
the final ``Model CERCLA Section 122(h)(1) Agreement for Recovery of
Past Response Costs.'' These models, developed by the Agency and the
U.S. Department of Justice, provide guidance for Agency and Department
staff when negotiating settlement of CERCLA Section 107 claims for
recovery of purely past response costs. The model consent decree is
designed for judicially-approved CERCLA Section 107 settlements, and
the model agreement is designed for administrative CERCLA Section
122(h)(1) settlements. The Agency is publishing the models in their
entirety, along with the September 29, 1995 joint memorandum of the EPA
and the U.S. Department of Justice announcing their issuance, to inform
affected members of the public of their existence and content.
FOR FURTHER INFORMATION CONTACT: Janice C. Linett, Mail Code 2272,
Office of Enforcement and Compliance Assurance, Regional Enforcement
Division, U.S. Environmental Protection Agency, 401 M Street SW.,
Washington, D.C. 20460, (202) 260-7116.
Dated: October 26, 1995.
Susan Brown,
Acting Director, Office of Site Remediation Enforcement.
Memorandum
Subject: Issuance of ``Model CERCLA Section 107 Consent Decree for
Recovery of Past Response Costs'' and ``Model CERCLA Section 122(h)(1)
Agreement for Recovery of Past Response Costs''
From:
Jerry Clifford, Director,
Office of Site Remediation Enforcement,
U.S. Environmental Protection Agency
Bruce S. Gelber, Acting Chief,
Environmental Enforcement Section,
Environment and Natural Resources Division,
U.S. Department of Justice
To:
Regional Counsel, Regions I--X
Regional Waste Management Division Directors, Regions I--X
Financial Management Officers, Regions I--X
Assistant Chiefs, Environmental Enforcement Section
September 29, 1995.
We are pleased to issue the final versions of two model CERCLA cost
recovery settlement documents: 1) ``Model CERCLA Section 107 Consent
Decree for Recovery of Past Response Costs'' (``Model CD''); and 2)
``Model CERCLA Section 122(h)(1) Agreement for Recovery of Past
Response Costs'' (``Model Agreement''). The Model CD is to be used as
guidance for EPA and DOJ staff when negotiating CERCLA Section 107
judicial consent decrees for recovery of past response costs. The Model
Agreement is to be used as guidance for EPA and DOJ staff when
negotiating CERCLA Section 122(h) administrative agreements for
recovery of past response costs. Both models are designed for
resolution of purely past cost claims and are not intended to be used
to resolve claims for future work or payment of future response costs
(``cashout'' settlements). Cashout settlement terms will be provided in
subsequent models.
We encourage our staffs to adhere as closely as possible to the
terms of these models, subject to modifications needed to reflect site-
specific circumstances. We believe use of these models will reduce
negotiation timeframes, achieve nationally consistent settlements,
promote compliance with current settlement practices and procedures,
and increase the speed of management review and approval. When seeking
approval of any settlement based upon one of these models, staff should
identify any significant deviation from the relevant model and the
basis for the departure. For DOJ staff, these models are available
electronically on the Section's work product directory, EESINDEX, as
N:/NET/SS52/UDD/EESINDEX/CERMODEL/PASTCOST.CD or PASTCOST.AOC.
We would like to thank all EPA and DOJ staff who assisted in the
development of these models. If you have any questions about these
models, please contact Janice Linett of the Regional Support Division
at (703) 978-3057 or Tom Mariani of the Environmental Enforcement
Section at (202) 514-4620.
Attachments
cc: Lawrence E. Starfield, Acting Associate General Counsel, Solid
Waste and Emergency Response Division,
Stephen D. Luftig, Director, Office of Emergency and Remedial Response
Jack L. Shipley, Director, Financial Management Division
Letitia Grishaw, Chief, Environmental Defense Section
Environmental Protection Agency and Department of Justice Model Cercla
Section 107 Consent Decree for Recovery of Past Response Costs
This model and any internal procedures adopted for its
implementation and use are intended as guidance for employees of the
U.S. Department of Justice and the U.S.
[[Page 62447]]
Environmental Protection Agency. They do not constitute rulemaking by
the Department or Agency and may not be relied upon to create a right
or a benefit, substantive or procedural, enforceable at law or in
equity, by any person. The Department or Agency may take action at
variance with this model or its internal implementing procedures.
Model Cercla Section 107 Consent Decree for Recovery of Past Response
Costs
Table of Contents
I. Background
II. Jurisdiction
III. Parties Bound
IV. Definitions
V. Reimbursement of Response Costs
VI. Failure To Comply with Requirements of Consent Decree
VII. Covenant Not To Sue by Plaintiff[S]
VIII. Covenant Not To Sue by Settling Defendants
IX. Effect of Settlement/Contribution Protection ____. [Site Access]
____. [Access to Information]
X. Retention of Records
XI. Notices and Submissions
XII. Retention of Jurisdiction
XIII. Integration[/Appendices]
XIV. Lodging and Opportunity for Public Comment
XV. Effective Date
XVI. Signatories/Service
In the United States District Court for the District of [__________]
[__________] Division1
\1\Follow local rules for caption format.
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Consent Decree
United States of America, [and the State of __________ ]
Plaintiff[s], v. [Defendants] Defendants.
Civil Action No.-------------------------------------------------------
Judge------------------------------------------------------------------
[Note: If the complaint includes causes of action which are not
resolved by this consent decree, or names defendants who are not
signatories to this consent decree, the title should be ``Partial
Consent Decree''.]
I. Background
A. The United States of America (``United States''), on behalf of
the Administrator of the United States Environmental Protection Agency
(``EPA''), filed a complaint in this matter pursuant to Section 107 of
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, 42 U.S.C. Sec. 9607, as amended (``CERCLA''), seeking
reimbursement of response costs incurred and to be incurred for
response actions taken at or in connection with the release or
threatened release of hazardous substances at the [insert Site Name] in
[insert City, County, State] (``the Site'').
[[.____ The State of __________ (the ``State'') also filed a
complaint against the defendants in this Court alleging that the
defendants are liable to the State under Section 107 of CERCLA, 42
U.S.C. Sec. 9607, and [list State laws cited in the State's complaint].
The State in its complaint seeks [insert relief sought].]]
B. The defendants that have entered into this Consent Decree
(``Settling Defendants'') do not admit any liability to Plaintiff[s]
arising out of the transactions or occurrences alleged in the
complaint[s].2
\2\ In situations where the court has entered summary judgment
as to liability, we normally should preserve that result in a
subsequent settlement by deleting this Paragraph B and replacing it
with one that describes the summary judgment decision.
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C. The United States and Settling Defendants agree, and this Court
by entering this Consent Decree finds, that this Consent Decree has
been negotiated by the Parties in good faith, that settlement of this
matter will avoid prolonged and complicated litigation between the
Parties, and that this Consent Decree is fair, reasonable, and in the
public interest.
Therefore, with the consent of the Parties to this Decree, it is
Ordered, Adjudged, and Decreed:
II. Jurisdiction
1. This Court has jurisdiction over the subject matter of this
action pursuant to 28 U.S.C. Secs. 1331 and 1345 and 42 U.S.C.
Secs. 9607 and 9613(b) and also has personal jurisdiction over Settling
Defendants. Settling Defendants consent to and shall not challenge
entry of this Consent Decree or this Court's jurisdiction to enter and
enforce this Consent Decree.
III. Parties Bound
2. This Consent Decree is binding upon the United States [and the
State], and upon Settling Defendants and their [heirs,] successors and
assigns. Any change in ownership or corporate or other legal status,
including but not limited to, any transfer of assets or real or
personal property, shall in no way alter the status or responsibilities
of Settling Defendants under this Consent Decree.
IV. Definitions
3. Unless otherwise expressly provided herein, terms used in this
Consent Decree which are defined in CERCLA or in regulations
promulgated under CERCLA shall have the meaning assigned to them in
CERCLA or in such regulations. Whenever terms listed below are used in
this Consent Decree or in any appendix attached hereto, the following
definitions shall apply:
a. ``CERCLA'' shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C.
Sec. 9601, et seq.
b. ``Consent Decree'' shall mean this Consent Decree and all
appendices attached hereto. In the event of conflict between this
Consent Decree and any appendix, the Consent Decree shall control.
c. ``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.
d. ``DOJ'' shall mean the United States Department of Justice and
any successor departments, agencies or instrumentalities of the United
States.
e. ``EPA'' shall mean the United States Environmental Protection
Agency and any successor departments, agencies or instrumentalities of
the United States.
f. ``EPA Hazardous Substance Superfund'' shall mean the Hazardous
Substance Superfund established by the Internal Revenue Code, 26 U.S.C.
Sec. 9507.
g. ``Interest'' shall mean interest at the current rate specified
for interest on investments of the Hazardous Substance Superfund
established by 26 U.S.C. Sec. 9507, compounded annually on October 1 of
each year, in accordance with 42 U.S.C. Sec. 9607(a).3
\3\ The Superfund currently is invested in 52-week MK bills. The
interest rate for these MK bills changes on October 1 of each year.
To obtain the current rate, contact Vince Velez, Office of
Administration and Resource Management, Financial Management
Division, Superfund Accounting Branch, at (202) 260-6465.
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[[____. ``Owner Settling Defendants'' shall mean [insert
names].]]4
\4\ This definition is needed if the optional paragraph on
Notice of Obligations to Successors-in-Title is used. See infra p.
14.
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h. ``Paragraph'' shall mean a portion of this Consent Decree
identified by an arabic numeral or an upper or lower case letter.
i. ``Parties'' shall mean the United States[, the State of
__________,] and the Settling Defendants.
j. ``Past Response Costs'' shall mean all costs, including but not
limited to direct and indirect costs, that EPA or DOJ on behalf of EPA
has paid at or in connection with the Site through [insert date], plus
accrued Interest on all such costs through such date.5
\5\ If the past costs settlement is partial, it may be necessary
to continue the definition with a brief description of the past
response action(s) which are being paid for or compromised, such as:
``. . . for the response action described in the Record of Decision
for the First Operable Unit at the Site dated __________'' or ``for
the removal action described in the action memorandum for the Site
dated __________.'' Exercise care in describing the activities
covered, as this description may affect the scope of the covenant
not to sue and contribution protection. For clarity, the description
of the past response action may need to indicate which response
actions are not included within the definition of Past Response
Costs. Check to be sure that the date used in the definition of Past
Response Costs does not inadvertently include costs that are outside
the scope of the definition. In some cases, it may be useful to
attach a standard, Regionally-prepared cost summary listing the
costs that are within the scope of the definition. This may be done:
1) to be sure that no confusion arises as to which costs are being
compromised; or 2) to indicate which outstanding past cost claims
are being resolved through the settlement, i.e., to indicate that
the recovered costs are to be applied to particular portions of the
debt.
[[Page 62448]]
[[____. ``Record of Decision'' or ``ROD'' shall mean the EPA Record
of Decision relating to the [Site or ____ operable Unit at the Site]
signed on [insert date] by the Regional Administrator, EPA Region ____,
or his/her delegatee, and all attachments thereto.]]
k. ``Plaintiff[s]'' shall mean the United States [and the State].
l. ``Section'' shall mean a portion of this Consent Decree
identified by a roman numeral.
m. ``Settling Defendants'' shall mean [insert names of settling
parties, or only if very numerous, ``those parties identified in
Appendix A.'']
n. ``Site'' shall mean the __________ Superfund site, encompassing
approximately ____ acres, located at [insert address or description of
location] in [insert City, County, State], and [insert either
``depicted more clearly on the map included in Appendix B'' or
``designated by the following property description: __________.'']
[____. ``State'' shall mean the State [or Commonwealth] of
____________.]
[[____. ``State Past Response Costs'' shall mean all costs,
including but not limited to direct and indirect costs, together with
accrued interest, that the State of __________ has paid through [insert
date] in response to the release or threatened release of hazardous
substances at or in connection with the Site, but not including amounts
reimbursed to the State by EPA.]]
o. ``United States'' shall mean the United States of America,
including its departments, agencies and instrumentalities.
V. Reimbursement of Response Costs
[Note: If the amount to be paid is $10,000 or greater, payment
should be made by electronic funds transfer using the following
Paragraph 4.]
4. Payment of Past Response Costs to the EPA Hazardous Substance
Superfund. Within 30 days of entry of this Consent Decree, Settling
Defendants shall pay to the EPA Hazardous Substance Superfund $________
in reimbursement of Past Response Costs, plus an additional sum for
Interest on that amount calculated from the date set forth in the
definition of Past Response Costs through the date of payment.6
Payment shall be made by FedWire Electronic Funds Transfer (``EFT'') to
the U.S. Department of Justice account in accordance with current EFT
procedures, referencing USAO File Number ________, the EPA Region and
Site Spill ID Number ________ [insert 4-digit number, first 2 numbers
represent the Region (01-10), second 2 numbers represent the Region's
Site/Spill Identification number], and DOJ Case Number ________.
Payment shall be made in accordance with instructions provided to
Settling Defendants by the Financial Litigation Unit of the U.S.
Attorney's Office in the District of ________ following lodging of the
Consent Decree. Any payments received by the Department of Justice
after 4:00 p.m. Eastern Time shall be credited on the next business
day. Settling Defendants shall send notice to EPA and DOJ that payment
has been made in accordance with Section XI (Notices and Submissions)
and to [insert names and mailing addresses of the Regional Financial
Management Officer and any other receiving officials at EPA].
\6\As an alternative to calculation and payment of interest from
the Past Response Costs date through the date of payment, settling
defendants may agree to place the amount agreed upon into an
interest-bearing escrow account to be disbursed to EPA upon entry of
the consent decree. If this method is used, accrued interest from
the Past Response Costs date through the date the escrow account is
created should be calculated and included in the escrow deposit.
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[Note: If the amount to be paid is less than $10,000, payment
should be made by check using the following alternative Paragraph
4.]
4. Payment of Past Response Costs to the EPA Hazardous Substance
Superfund. Within 30 days of entry of this Consent Decree, Settling
Defendants shall pay to the EPA Hazardous Substance Superfund $________
in reimbursement of Past Response Costs, plus an additional sum for
Interest on that amount calculated from the date set forth in the
definition of Past Response Costs through the date of payment. Payment
shall be made by certified check or checks or cashier's check or checks
made payable to ``U.S. Department of Justice,'' referencing the name
and address of the party making payment, the EPA Region and Site Spill
ID Number ________ [insert 4-digit number, first 2 numbers represent
the Region (01-10), second 2 numbers represent the Region's Site/Spill
Identification number], USAO File Number ________, and DOJ Case Number
________. Settling Defendants shall send the check[s] to:
[Insert address of Financial Litigation Unit of U.S. Attorney's
Office for the District in which the Consent Decree will be entered]
Settling Defendants shall send notice that such payment has been
made to EPA and DOJ in accordance with Section XI (Notices and
Submissions) and to [insert names and mailing addresses of the Regional
Financial Management Officer and any other receiving officials at EPA].
[Note: If payment is to be made to a State, insert the following
optional paragraph.]
[[____. Payment of Past Response Costs to the State. Within 30 days
of entry of this Consent Decree, Settling Defendants shall pay to the
State $________, in the form of a certified check or checks or
cashier's check or checks, in reimbursement of State Past Response
Costs. The check[s] shall be made payable to ______________ and shall
reference [insert name of case]. Settling Defendants shall send the
check[s] to: Insert address provided by State]]
VI. Failure to Comply With Requirements of Consent Decree
5. Interest on Late Payments. In the event that any payment[s]
required by Section V (Reimbursement of Response Costs) or Section VI,
Paragraph 6 (Stipulated Penalty), are not received when due, Interest
shall continue to accrue on the unpaid balance through the date of
payment.
6. Stipulated Penalty.
a. If any amounts due to EPA [or to the State] under this Consent
Decree are not paid by the required date, Settling Defendants shall pay
to EPA [, or to the State if the delayed payment is for State Past
Response Costs,] as a stipulated penalty, in addition to the Interest
required by Paragraph 5, $________ per violation per day that such
payment is late. [[____. If Settling Defendants do not comply with
Section ____ (Site Access), Section ____ (Access to Information), or
Section ____ [insert cross-reference to any other non-payment
requirements for which a stipulated penalty applies], Settling
Defendants shall pay to EPA, as a stipulated penalty, $________ per
violation per day of such noncompliance.]]
[Note: Escalating payment schedules may be used in Paragraph
6(a) and in the optional
[[Page 62449]]
paragraph immediately above concerning stipulated penalties for
violations of non-payment requirements of the consent decree.]
b. Stipulated penalties are due and payable within 30 days of the
date of the demand for payment of the penalties by EPA [or the State].
All payments to EPA under this Paragraph shall be made by certified or
cashier's check made payable to ``EPA Hazardous Substance Superfund''
and shall be sent to: [Insert Regional Lockbox number and address]
All payments shall indicate that the payment is for stipulated
penalties and shall reference the name and address of the party making
payment, the EPA Region and Site Spill ID Number ________ [insert 4-
digit number, first 2 numbers represent the Region (01-10), second 2
numbers represent the Region's Site/Spill Identification number], USAO
File Number ________, and DOJ Case Number ________. Copies of check[s]
paid pursuant to this Paragraph, and any accompanying transmittal
letter[s], shall be sent to EPA and DOJ as provided in Section XI
(Notices and Submissions) and to [insert title and address of Regional
Financial Management Officer and any other receiving official at EPA].
[Note: If applicable, insert State payment instructions for
stipulated penalties for failure to pay State Past Response Costs.]
c. Penalties shall accrue as provided in this Paragraph regardless
of whether EPA [or the State] has notified Settling Defendants of the
violation or made a demand for payment, but need only be paid upon
demand. All penalties shall begin to accrue on the day after complete
performance is due or the day a violation occurs, and shall continue to
accrue through the final day of correction of the noncompliance or
completion of the activity. Nothing herein shall prevent the
simultaneous accrual of separate penalties for separate violations of
this Consent Decree.
7. If the United States [or the State] brings an action to enforce
this Consent Decree, Settling Defendants shall reimburse the United
States [and the State] for all costs of such action, including but not
limited to costs of attorney time.
8. Payments made under Paragraphs 5-7 shall be in addition to any
other remedies or sanctions available to Plaintiff[s] by virtue of
Settling Defendants' failure to comply with the requirements of this
Consent Decree.
9. The obligations of Settling Defendants to pay amounts owed the
United States [and the State] under this Consent Decree are joint and
several. In the event of the failure of any one or more Settling
Defendants to make the payments required under this Consent Decree, the
remaining Settling Defendants shall be responsible for such payments.
10. Notwithstanding any other provision of this Section, the United
States may, in its unreviewable discretion, waive payment of any
portion of the stipulated penalties that have accrued pursuant to this
Consent Decree.
VII. Covenant Not to Sue By Plaintiff[S]
11. Covenant Not to Sue by United States. Except as specifically
provided in Paragraph 12 (Reservation of Rights by United States), the
United States covenants not to sue Settling Defendants pursuant to
Section 107(a) of CERCLA, 42 U.S.C. Sec. 9607(a), to recover Past
Response Costs. This covenant not to sue shall take effect upon receipt
by EPA of all payments required by Section V, Paragraph 4 (Payment of
Past Response Costs to the United States) and Section VI, Paragraphs 5
(Interest on Late Payments) and 6(a) (Stipulated Penalty for Late
Payment). This covenant not to sue is conditioned upon the satisfactory
performance by Settling Defendants of their obligations under this
Consent Decree. This covenant not to sue extends only to Settling
Defendants and does not extend to any other person.
12. Reservation of Rights by United States. The covenant not to sue
set forth in Paragraph 11 does not pertain to any matters other than
those expressly specified therein. The United States reserves, and this
Consent Decree is without prejudice to, all rights against Settling
Defendants with respect to all other matters, including but not limited
to:
a. liability for failure of Settling Defendants to meet a
requirement of this Consent Decree;
b. liability for damages for injury to, destruction of, or loss of
natural resources, and for the costs of any natural resource damage
assessments;
c. criminal liability;
d. liability for injunctive relief or administrative order
enforcement under Section 106 of CERCLA, 42 U.S.C. Sec. 6906; and
e. liability for costs incurred or to be incurred by the United
States that are not within the definition of Past Response Costs.
[Note: If the State is a co-plaintiff, insert separate
paragraphs for the State's covenant not to sue settling defendants
and reservation of rights.]
VIII. Covenant Not to Sue By Settling Defendants
13. Settling Defendants covenant not to sue and agree not to assert
any claims or causes of action against the United States [or the
State], or its [their] contractors or employees, with respect to Past
Response Costs [and State Response Costs] or this Consent Decree,
including but not limited to:
a. any direct or indirect claim for reimbursement from the
Hazardous Substance Superfund based on Sections 106(b)(2), 107, 111,
112, or 113 of CERCLA, 42 U.S.C. Secs. 9606(b)(2), 9607, 9611, 9612, or
9613, or any other provision of law;
b. any claim arising out of response actions at the Site for which
the Past Response Costs were incurred; and
c. any claim against the United States pursuant to Sections 107 and
113 of CERCLA, 42 U.S.C. Secs. 9607 and 9613, relating to Past Response
Costs.7
\7\ The settlement should, wherever possible, release or resolve
any claims by settling defendants against the United States related
to the site. Where a claim is asserted by a potentially responsible
party, or the Region has any information suggesting federal agency
liability, all information relating to potential federal liability
should be provided to the affected agency and DOJ as soon as
possible in order to resolve any such issues in the settlement.
Settlement of any federal liability will require additional
revisions to this document, and model language will be provided
separately. Only in exceptional circumstances where federal
liability cannot be resolved in a timely manner in the settlement
should this provision be deleted and private parties be allowed to
reserve their rights.
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14. Nothing in this Consent Decree shall be deemed to constitute
approval or preauthorization of a claim within the meaning of Section
111 of CERCLA, 42 U.S.C. Sec. 9611, or 40 C.F.R. 300.700(d).
IX. Effect of Settlement/Contribution Protection
15. Nothing in this Consent Decree shall be construed to create any
rights in, or grant any cause of action to, any person not a Party to
this Consent Decree. Each of the Parties expressly reserves any and all
rights (including, but not limited to, any right to contribution),
defenses, claims, demands, and causes of action which each Party may
have with respect to any matter, transaction, or occurrence relating in
any way to the Site against any person not a Party hereto.
16. The Parties agree, and by entering this Consent Decree this
Court finds, that Settling Defendants are entitled, as of the effective
date of this Consent Decree, to protection from contribution actions or
claims as provided by Section 113(f)(2) of CERCLA, 42 U.S.C.
Sec. 9613(f)(2), for ``matters addressed'' in
[[Page 62450]]
this Consent Decree. The ``matters addressed'' in this Consent Decree
are Past Response Costs.8
\8\In exceptional situations, different coverage may apply.
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17. Each Settling Defendant agrees that, with respect to any suit
or claim for contribution brought by it for matters related to this
Consent Decree, it will notify EPA and DOJ [and the State] in writing
no later than 60 days prior to the initiation of such suit or claim.
Each Settling Defendant also agrees that, with respect to any suit or
claim for contribution brought against it for matters related to this
Consent Decree, it will notify EPA and DOJ [and the State] in writing
within 10 days of service of the complaint or claim upon it. In
addition, each Settling Defendant shall notify EPA and DOJ [and the
State] within 10 days of service or receipt of any Motion for Summary
Judgment, and within 10 days of receipt of any order from a court
setting a case for trial, for matters related to this Consent Decree.
18. In any subsequent administrative or judicial proceeding
initiated by the United States [or the State] for injunctive relief,
recovery of response costs, or other relief relating to the Site,
Settling Defendants shall not assert, and may not maintain, any defense
or claim based upon the principles of waiver, res judicata, collateral
estoppel, issue preclusion, claim-splitting, or other defenses based
upon any contention that the claims raised by the United States [or the
State] in the subsequent proceeding were or should have been brought in
the instant case; provided, however, that nothing in this Paragraph
affects the enforceability of the Covenant Not to Sue by Plaintiff[s]
set forth in Section VII.
[____. Site Access]9
\9\Include this section if 1) access to the site is needed and
2) the site owner is a settling defendant or other settling
defendants control access to the site or to any other property to
which access is needed. Renumber sections and paragraphs as
necessary. If any of the settling defendants will need to provide
institutional controls as part of any response action, include such
a provision within this section and change the name of this section
to Site Access/Institutional Controls.
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[[____. Commencing upon the date of lodging of this Consent Decree,
Settling Defendants agree to provide the United States [, the State,]
and its [their] representatives, including EPA and its contractors,
access at all reasonable times to the Site and to any other property
owned or controlled by Settling Defendants to which access is
determined by EPA [or the State] to be required for the implementation
of this Consent Decree, or for the purpose of conducting any response
activity related to the Site, including but not limited to:
a. Monitoring of investigation, removal, remedial or other
activities at the Site;
b. Verifying any data or information submitted to the United States
[or the State];
c. Conducting investigations relating to contamination at or near
the Site;
d. Obtaining samples;
e. Assessing the need for, planning, or implementing response
actions at or near the Site; [and]
f. Inspecting and copying records, operating logs, contracts, or
other documents maintained or generated by Settling Defendants or their
agents, consistent with Section ____ (Access to Information).
[Note: If institutional controls or any other provisions
requiring monitoring are included in the decree, also include the
following subparagraph g.]
[g. Assessing Settling Defendants' compliance with this Consent
Decree.]
____. Notwithstanding any provision of this Consent Decree, the
United States [and the State] retain[s] all of its [their] access
authorities and rights, including enforcement authorities related
thereto, under CERCLA, the Resource Conservation and Recovery Act, 42
U.S.C. Sec. 6927, and any other applicable statutes or regulations.
____. Notice of Obligations to Successors-in-Title.
a. Within 15 days after entry of this Consent Decree, [Owner
Settling Defendants] shall record [insert either ``a certified copy of
this Consent Decree'' or ``a notice of the entry of this Consent
Decree''] with the Recorder's Office [or Registry of Deeds or other
appropriate office], __________ County, State of __________.10
Thereafter, each deed, title, or other instrument conveying an interest
in the property included in the Site shall contain a notice stating
that the property is subject to this Consent Decree [and any lien
retained by the United States] and shall reference the recorded
location of the Consent Decree and any restrictions applicable to the
property under this Consent Decree.
\10\ If an institutional controls provision is included in this
section, this paragraph should be amended to require the owner
settling defendants to record in the chain of title a restrictive
covenant that specifies the institutional controls. The
institutional controls to be implemented should be described in an
appendix to this decree.
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b. The obligations of each [Owner Settling Defendant] with respect
to the provision of access under Section ____ (Site Access) [and the
implementation of institutional controls under Paragraph ____] shall be
binding upon any and all Settling Defendants and upon any and all
persons who subsequently acquire any such interest or portion thereof
(hereinafter ``Successors-in-Title''). Within 15 days after the entry
of this Consent Decree, each [Owner Settling Defendant] shall record at
the Recorder's Office [or Registry of Deeds or other appropriate office
where land ownership and transfer records are maintained for the
property] a notice of obligation to provide access under Section ____
(Site Access) and related covenants, if any. Each subsequent instrument
conveying an interest to any such property included in the Site shall
reference the recorded location of such notice and covenants applicable
to the property.
c. Any [Owner Settling Defendant] and any Successor-in-Title shall,
at least 30 days prior to the conveyance of any such interest, give
written notice of this Consent Decree to the grantee and written notice
to EPA [and the State] of the proposed conveyance, including the name
and address of the grantee, and the date on which notice of the Consent
Decree was given to the grantee. In the event of any such conveyance,
the Settling Defendants' obligations under this Consent Decree,
including their obligation to provide or secure access pursuant to
Section ____ (Site Access), shall continue to be met by Settling
Defendants. In no event shall the conveyance of an interest in property
that includes, or is a portion of, the Site release or otherwise affect
the liability of Settling Defendants to comply with this Consent
Decree.]]
[____. Access to Information\11\]
\11\Include this section only if settling defendants have been
or will be involved in cleanup efforts at the site or if they may
possess information which may assist the Agency in its cleanup or
enforcement efforts.
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[____ . Settling Defendants shall provide to EPA [and the State],
upon request, copies of all documents and information within their
possession or control or that of their contractors or agents relating
to activities at the Site [or to the implementation of this Consent
Decree], including, but not limited to, sampling, analysis, chain of
custody records, manifests, trucking logs, receipts, reports, sample
traffic routing, correspondence, or other documents or information
related to the Site.
[____. Confidential Business Information and Privileged Documents.
a. Settling Defendants may assert business confidentiality claims
covering part or all of the documents or information submitted to
Plaintiff[s]
[[Page 62451]]
under this Consent Decree to the extent permitted by and in accordance
with Section 104(e)(7) of CERCLA, 42 U.S.C. Sec. 9604(e)(7), and 40
C.F.R. 2.203(b). Documents or information determined to be confidential
by EPA will be accorded the protection specified in 40 C.F.R. Part 2,
Subpart B. If no claim of confidentiality accompanies documents or
information when they are submitted to EPA [and the State], or if EPA
has notified Settling Defendants that the documents or information are
not confidential under the standards of Section 104(e)(7) of CERCLA,
the public may be given access to such documents or information without
further notice to Settling Defendants.
b. Settling Defendants may assert that certain documents, records
or other information are privileged under the attorney-client privilege
or any other privilege recognized by federal law. If Settling
Defendants assert such a privilege in lieu of providing documents, they
shall provide Plaintiff[s] with the following: 1) the title of the
document, record, or information; 2) the date of the document, record,
or information; 3) the name and title of the author of the document,
record, or information; 4) the name and title of each addressee and
recipient; 5) a description of the subject of the document, record, or
information; and 6) the privilege asserted. However, no documents,
reports or other information created or generated pursuant to the
requirements of this or any other consent decree with the United States
shall be withheld on the grounds that they are privileged. If a claim
of privilege applies only to a portion of a document, the document
shall be provided to Plaintiff[s] in redacted form to mask the
privileged information only. Settling Defendants shall retain all
records and documents that they claim to be privileged until the United
States has had a reasonable opportunity to dispute the privilege claim
and any such dispute has been resolved in the Settling Defendants'
favor.
____. No claim of confidentiality shall be made with respect to any
data, including but not limited to, all sampling, analytical,
monitoring, hydrogeologic, scientific, chemical, or engineering data,
or any other documents or information evidencing conditions at or
around the Site.]]
X. Retention of Records12
\12\ Renumber this section and all following section headings
and paragraph numbers if either of the optional sections on Site
Access or Access to Information is included.
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19. Until ____ years after the entry of this Consent Decree, each
Settling Defendant shall preserve and retain all records and documents
now in its possession or control, or which come into its possession or
control, that relate in any manner to response actions taken at the
Site or the liability of any person for response actions conducted and
to be conducted at the Site, regardless of any corporate retention
policy to the contrary.
20. After the conclusion of the document retention period in the
preceding paragraph, Settling Defendants shall notify EPA and DOJ [and
the State] at least 90 days prior to the destruction of any such
records or documents, and, upon request by EPA or DOJ [or the State],
Settling Defendants shall deliver any such records or documents to EPA
[or the State]. Settling Defendants may assert that certain documents,
records, or other information are privileged under the attorney-client
privilege or any other privilege recognized by federal law. If Settling
Defendants assert such a privilege, they shall provide Plaintiff[s]
with the following: 1) the title of the document, record, or
information; 2) the date of the document, record, or information; 3)
the name and title of the author of the document, record, or
information; 4) the name and title of each addressee and recipient; 5)
a description of the subject of the document, record, or information;
and 6) the privilege asserted. However, no documents, reports, or other
information created or generated pursuant to the requirements of this
or any other consent decree with the United States shall be withheld on
the grounds that they are privileged. If a claim of privilege applies
only to a portion of a document, the document shall be provided to
Plaintiff[s] in redacted form to mask the privileged information only.
Settling Defendants shall retain all records and documents that they
claim to be privileged until the United States has had a reasonable
opportunity to dispute the privilege claim and any such dispute has
been resolved in the Settling Defendants' favor.
21. By signing this Consent Decree, each Settling Defendant
certifies individually that, to the best of its knowledge and belief,
it has:
a. conducted a thorough, comprehensive, good faith search for
documents, and has fully and accurately disclosed to EPA, all
information currently in its possession, or in the possession of its
officers, directors, employees, contractors or agents, which relates in
any way to the ownership, operation or control of the Site, or to the
ownership, possession, generation, treatment, transportation, storage
or disposal of a hazardous substance, pollutant or contaminant at or in
connection with the Site;
b. not altered, mutilated, discarded, destroyed or otherwise
disposed of any records, documents or other information relating to its
potential liability regarding the Site, after notification of potential
liability or the filing of a suit against the Settling Defendant
regarding the Site; and
c. fully complied with any and all EPA requests for information
regarding the Site pursuant to Sections 104(e) and 122(e) of CERCLA, 42
U.S.C. Secs. 9604(e) and 9622(e) [insert, if applicable, ``, and
Section 3007 of RCRA, 42 U.S.C. Sec. 6927''].
XI. Notices and Submissions
22. Whenever, under the terms of this Consent Decree, notice is
required to be given or a document is required to be sent by one party
to another, it shall be directed to the individuals at the addresses
specified below, unless those individuals or their successors give
notice of a change to the other Parties in writing. Written notice as
specified herein shall constitute complete satisfaction of any written
notice requirement of the Consent Decree with respect to the United
States, EPA, DOJ, [the State,] and Settling Defendants, respectively.
As to the United States:
As to DOJ:
Chief, Environmental Enforcement Section, Environment and Natural
Resources Division, U.S. Department of Justice (DJ # ________), P.O.
Box 7611, Washington, D.C. 20044-7611
As to EPA:
[Insert names and addresses of EPA Regional contacts, usually the ORC
attorney and the RPM or Project Coordinator]
[As to the State:
Insert name and address of State contact if the State is a party to the
Consent Decree]
As to Settling Defendants:
[Insert name of one person who will serve as the contact for all
Settling Defendants]
XII. Retention of Jurisdiction
23. This Court shall retain jurisdiction over this matter for the
purpose of interpreting and enforcing the terms of this Consent Decree.
[[Page 62452]]
XIII. Integration[/Appendices]
24. This Consent Decree and its appendices constitute the final,
complete and exclusive agreement and understanding among the Parties
with respect to the settlement embodied in this Consent Decree. The
Parties acknowledge that there are no representations, agreements or
understandings relating to the settlement other than those expressly
contained in this Consent Decree. [The following appendices are
attached to and incorporated into this Consent Decree: ``Appendix A''
is the complete list of Settling Defendants; and ``Appendix B'' is the
map of the Site.]
XIV. Lodging and Opportunity for Public Comment
25. This Consent Decree shall be lodged with the Court for a period
of not less than 30 days for public notice and comment. The United
States reserves the right to withdraw or withhold its consent if the
comments regarding the Consent Decree disclose facts or considerations
which indicate that this Consent Decree is inappropriate, improper, or
inadequate. Settling Defendants consent to the entry of this Consent
Decree without further notice.
26. If for any reason this Court should decline to approve this
Consent Decree in the form presented, this agreement is voidable at the
sole discretion of any party and the terms of the agreement may not be
used as evidence in any litigation between the Parties.
XV. Effective Date
27. The effective date of this Consent Decree shall be the date
upon which it is entered by the Court.
XVI. Signatories/Service
28. Each undersigned representative of a Settling Defendant to this
Consent Decree and the [Assistant Attorney General for the Environment
and Natural Resources Division]13 of the United States Department
of Justice [insert State official] certifies that he or she is
authorized to enter into the terms and conditions of this Consent
Decree and to execute and bind legally such Party to this document.
\13\Substitute Chief, Environmental Enforcement Section, where
the case involves less than $1 million and at least $500,000 is
being recovered by settlement. Note also that Associate Attorney
General approval is required if the difference between the total
amount of the claim and the amount of the settlement exceeds $2
million or 15% of claim (whichever is greater). See 28 CFR 0.160.
---------------------------------------------------------------------------
29. Each Settling Defendant hereby agrees not to oppose entry of
this Consent Decree by this Court or to challenge any provision of this
Consent Decree, unless the United States has notified Settling
Defendants in writing that it no longer supports entry of the Consent
Decree.
30. Each Settling Defendant shall identify, on the attached
signature page, the name and address of an agent who is authorized to
accept service of process by mail on behalf of that Party with respect
to all matters arising under or relating to this Consent Decree.
Settling Defendants hereby agree to accept service in that manner and
to waive the formal service requirements set forth in Rule 4 of the
Federal Rules of Civil Procedure and any applicable local rules of this
Court, including but not limited to, service of a summons.
So ordered this ________ day of ______________, 19____.
----------------------------------------------------------------------
United States District Judge
The Undersigned parties enter into this Consent Decree in the
matter of [insert case name and civil action number], relating to the
____________ Superfund Site.
For the United States of America
Date:------------------------------------------------------------------
----------------------------------------------------------------------
[Name] Assistant Attorney General14 Environment and Natural
Resources Division, U.S. Department of Justice, Washington, D.C.
20530
\14\See supra n. 13.
---------------------------------------------------------------------------
[Name] United States Attorney [Address]
----------------------------------------------------------------------
[Name] Attorney, Environmental Enforcement Section, Environment and
Natural Resources Division, U.S. Department of Justice, P.O. Box
7611, Washington, DC 20044-7611
----------------------------------------------------------------------
[Name]15 Assistant Administrator for Enforcement and Compliance
Assurance, U.S. Environmental Protection Agency, 401 M Street S.W.,
Washington, D.C. 20460
\15\Include AA-OECA signature block only if he or she has a
concurrence role under Delegation No. 14-13-B.
---------------------------------------------------------------------------
----------------------------------------------------------------------
[Name] Regional Administrator, Region [ ], U.S. Environmental
Protection Agency, [Address]
----------------------------------------------------------------------
[Name] Assistant Regional Counsel, U.S. Environmental Protection
Agency, [Address]
[[The undersigned party enters into this Consent Decree in the
matter of [insert case name and civil action number], relating to
the ______ Superfund Site.
For the State of [ ]
Date:------------------------------------------------------------------
----------------------------------------------------------------------
[Names and addresses of State signatories]]
The undersigned party enters into this Consent Decree in the
matter of [insert case name and civil action number], relating to
the __________ Superfund Site.
For Defendant [ ]
Date:------------------------------------------------------------------
----------------------------------------------------------------------
[Names and address of Defendant's signatories]
Agent Authorized to Accept Service on Behalf of Above-signed
Party:
Name:------------------------------------------------------------------
Title:-----------------------------------------------------------------
Address:---------------------------------------------------------------
Environmental Protection Agency Model CERCLA Section 122(h)(1)
Agreement for Recovery of Past Response Costs
This model and any internal procedures adopted for its
implementation and use are intended as guidance for employees of the
U.S. Environmental Protection Agency. They do not constitute rulemaking
by the Agency and may not be relied upon to create a right or a
benefit, substantive or procedural, enforceable at law or in equity, by
any person. The Agency may take action at variance with this model or
its internal implementing procedures.
Model CERCLA Section 122(h)(1) Agreement for Recovery of Past Response
Costs
Table of Contents
I. Jurisdiction
II. Background
III. Parties Bound
IV. Definitions
V. Reimbursement of Response Costs
VI. Failure To Comply With Agreement
VII. Covenant Not To Sue by EPA
VIII. Reservations of Rights by EPA
IX. Covenant Not To Sue by Settling Parties
X. Effect of Settlement/Contribution Protection
XI. Retention of Records
XII. Notices and Submissions
XIII. Integration[/Appendices]
XIV. Public Comment
____. [Attorney General Approval]
XV. Effective Date
I. Jurisdiction
In the matter of: [Site Name] [City, County, State] [Names of
Settling Parties] Settling Parties
Agreement for Recovery of Past Response Costs
U.S. EPA Region ______
CERCLA Docket No. ______
Proceeding Under Section 122(h)(1) of CERCLA 42 U.S.C.
Sec. 9622(h)(1)
1. This Agreement is entered into pursuant to the authority vested
in the Administrator of the U.S. Environmental Protection Agency
(``EPA'') by Section 122(h)(1) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended
(``CERCLA''), 42 U.S.C. Sec. 6922(h)(1), which authority
[[Page 62453]]
has been delegated to the Regional Administrators of the EPA by EPA
Delegation No. 14-14-D.
[Note: Also reference any internal Regional redelegations of
authority under 14-14-D.]
2. This Agreement is made and entered into by EPA and the [insert
names or reference attached appendix listing settling parties]
(``Settling Parties''). Each Settling Party consents to and will not
contest EPA's jurisdiction to enter into this Agreement or to implement
or enforce its terms.
II. Background
3. This Agreement concerns the [insert Site name] (``Site'')
located in [insert Site location]. EPA alleges that the Site is a
``facility'' as defined by Section 101(9) of CERCLA, 42 U.S.C.
Sec. 9601(9).
4. In response to the release or threatened release of hazardous
substances at or from the Site, EPA undertook response actions at the
Site pursuant to Section 104 of CERCLA, 42 U.S.C. Sec. 9604.
[Note: A brief description of the release or threatened release
and of the response actions undertaken may be included.]
5. In performing this response action, EPA incurred response costs
at or in connection with the Site.
6. EPA alleges that Settling Parties are responsible parties
pursuant to Section 107(a) of CERCLA, 42 U.S.C. Sec. 9607(a), and are
jointly and severally liable for response costs incurred at or in
connection with the Site.
[Note: If Attorney General approval is not required for this
settlement because total past and projected response costs of the
United States at the site are not expected to exceed $500,000,
excluding interest, insert the following paragraph and renumber all
subsequent paragraphs.]
[______. The Regional Administrator of EPA Region ______, or his/
her delegatee, has determined that the total past and projected
response costs of the United States at or in connection with the Site
will not exceed $500,000, excluding interest.]
7. EPA and Settling Parties desire to resolve Settling Parties'
alleged civil liability for Past Response Costs without litigation and
without the admission or adjudication of any issue of fact or law.
III. Parties Bound
8. This Agreement shall be binding upon EPA and upon Settling
Parties and their [heirs], successors and assigns. Any change in
ownership or corporate or other legal status of a Settling Party,
including but not limited to, any transfer of assets or real or
personal property, shall in no way alter such Settling Party's
responsibilities under this Agreement. Each signatory to this Agreement
certifies that he or she is authorized to enter into the terms and
conditions of this Agreement and to bind legally the party represented
by him or her.
IV. Definitions
9. Unless otherwise expressly provided herein, terms used in this
Agreement which are defined in CERCLA or in regulations promulgated
under CERCLA shall have the meaning assigned to them in CERCLA or in
such regulations. Whenever terms listed below are used in this
Agreement or in any appendix attached hereto, the following definitions
shall apply:
a. ``CERCLA'' shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C.
Sec. 9601, et seq.
b. ``Agreement'' shall mean this Agreement and any attached
appendices. In the event of conflict between this Agreement and any
appendix, the Agreement shall control.
c. ``Day'' shall mean a calendar day. In computing any period of
time under this Agreement, 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.
d. ``EPA'' shall mean the United States Environmental Protection
Agency and any successor departments, agencies or instrumentalities of
the United States.
e. ``Interest'' shall mean interest at the current rate specified
for interest on investments of the Hazardous Substance Superfund
established by 26 U.S.C. Sec. 9507, compounded annually on October 1 of
each year, in accordance with 42 U.S.C. Sec. 9607(a).1
\1\ The Superfund currently is invested in 52-week MK bills. The
interest rate for these MK bills changes on October 1 of each year.
To obtain the current rate, contact Vince Velez, Office of
Administration and Resource Management, Financial Management
Division, Superfund Accounting Branch, at (202) 260-6465.
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f. ``Paragraph'' shall mean a portion of this Agreement identified
by an arabic numeral or a lower case letter.
g. ``Parties'' shall mean EPA and the Settling Parties.
h. ``Past Response Costs'' shall mean all costs, including but not
limited to direct and indirect costs, that EPA or the U.S. Department
of Justice on behalf of EPA has paid at or in connection with the Site
through [insert date], plus accrued Interest on all such costs through
such date.2
\2\ If the past costs settlement is partial, it may be necessary
to continue the definition with a brief description of the past
response action(s) which are being paid for or compromised, such as:
``. . . for the response action described in the Record of Decision
for the First Operable Unit at the Site dated ______'' or ``for the
removal action described in the action memorandum for the Site dated
______.'' Exercise care in describing the activities covered, as
this description may affect the scope of the covenant not to sue and
contribution protection. For clarity, the description of the past
response action may need to indicate which response actions are not
included within the definition of Past Response Costs. Check to be
sure that the date used in the definition of Past Response Costs
does not inadvertently include costs that are outside the scope of
the definition. In some cases, it may be useful to attach a
standard, Regionally-prepared cost summary listing the costs that
are within the scope of the definition. This may be done: 1) to be
sure that no confusion arises as to which costs are being
compromised; or 2) to indicate which outstanding past cost claims
are being resolved through the settlement, i.e., to indicate that
the recovered costs are to be applied to particular portions of the
debt.
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i. ``Section'' shall mean a portion of this Agreement identified by
a roman numeral.
j. ``Settling Parties'' shall mean [insert names of settling
parties, or if very numerous, ``those parties identified in Appendix
______.'']
k. ``Site'' shall mean the ______ Superfund site, encompassing
approximately ______ acres, located at [insert address or description
of location] in [insert City, County, State], and [insert either
``depicted more clearly on the map included in Appendix ______'' or
``designated by the following property description: ______.'']
l. ``United States'' shall mean the United States of America,
including it departments, agencies and instrumentalities.
V. Reimbursement of Response Costs
10. Within 30 days of the effective date of this Agreement, the
Settling Parties shall pay to the EPA Hazardous Substance Superfund
$______ in reimbursement of Past Response Costs, plus an additional sum
for Interest on that amount calculated from the date set forth in the
definition of Past Response Costs through the date of payment.3
\3\ As an alternative to calculation and payment of interest
from the Past Response Costs date through the date of payment,
settling parties may agree to place the amount agreed upon into an
interest-bearing escrow account to be disbursed to EPA upon the
effective date of the Agreement. If this method is used, accrued
interest from the Past Response Costs date through the date the
escrow account is created should be calculated and included in the
escrow deposit.
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11. Payments shall be made by certified or cashier's check made
payable to ``EPA Hazardous Substance Superfund.'' Each check shall
reference the name and address of the party making payment, the Site
name, the EPA Region and Site/Spill ID Number ______ [insert 4-digit
number, first 2
[[Page 62454]]
numbers represent the Region (01-10), second 2 numbers represent the
Region's Site/Spill Identification number], and the EPA docket number
for this action, and shall be sent to:
EPA Superfund
[Insert Regional Superfund lockbox number and address]
12. At the time of payment, each Settling Party shall send notice
that such payment has been made to:
[Insert name and address of Regional Attorney and/or Remedial Project
Manager]
VI. Failure to Comply With Agreement
13. In the event that any payment required by Paragraph 10 is not
made when due, Interest shall continue to accrue on the unpaid balance
through the date of payment.
14. If any amounts due to EPA under Paragraph 10 are not paid by
the required date, Settling Parties shall pay to EPA, as a stipulated
penalty, in addition to the Interest required by Paragraph 13, $______
per violation per day that such payment is late.
[[[Note: If the Agreement includes any non-payment obligations
for which a stipulated penalty is due, insert, ``If Settling Parties
do not comply with [reference sections containing non-payment
obligations], Settling Parties shall pay to EPA, as a stipulated
penalty, $______ per violation per day of such noncompliance.''
Escalating penalty payment schedules may be used for payment or non-
payment obligations.]]
15. Stipulated penalties are due and payable within 30 days of the
date of demand for payment of the penalties. All payments to EPA under
this Paragraph shall be identified as ``stipulated penalties'' and
shall made in accordance with Paragraphs 11 and 12.
16. Penalties shall accrue as provided above regardless of whether
EPA has notified the Settling Parties of the violation or made a demand
for payment, but need only be paid upon demand. All penalties shall
begin to accrue on the day after performance is due, or the day a
violation occurs, and shall continue to accrue through the final day of
correction of the noncompliance or completion of the activity. Nothing
herein shall prevent the simultaneous accrual of separate penalties for
separate violations of this Agreement.
17. In addition to the Interest and Stipulated Penalty payments
required by this Section and any other remedies or sanctions available
to EPA by virtue of Settling Parties' failure to comply with the
requirements of this Agreement, any Settling Party who fails or refuses
to comply with any term or condition of this Agreement shall be subject
to enforcement action pursuant to Section 122(h)(3) of CERCLA, 42
U.S.C. Sec. 9622(h)(3). If the United States, on behalf of EPA, brings
an action to enforce this Agreement, Settling Parties shall reimburse
the United States for all costs of such action, including but not
limited to costs of attorney time.
18. The obligations of Settling Parties to pay amounts owed to EPA
under this Agreement are joint and several. In the event of the failure
of any one or more Settling Parties to make the payments required under
this Agreement, the remaining Settling Parties shall be responsible for
such payments.
19. Notwithstanding any other provision of this Section, EPA may,
in its unreviewable discretion, waive payment of any portion of the
stipulated penalties that have accrued pursuant to this Agreement.
VII. Covenant Not To Sue By EPA
20. Except as specifically provided in Paragraph 21 (Reservations
of Rights by EPA), EPA covenants not to sue Settling Parties pursuant
to Section 107(a) of CERCLA, 42 U.S.C. Sec. 9607(a), to recover Past
Response Costs. This covenant shall take effect upon receipt by EPA of
all amounts required by Section V (Reimbursement of Response Costs) and
Section VI, Paragraphs 13 (Interest on Late Payments) and 14
(Stipulated Penalty for Late Payment). This covenant not to sue is
conditioned upon the satisfactory performance by Settling Parties of
their obligations under this Agreement. This covenant not to sue
extends only to Settling Parties and does not extend to any other
person.
VIII. Reservations of Rights By EPA
21. The covenant not to sue by EPA set forth in Paragraph 20 does
not pertain to any matters other than those expressly identified
therein. EPA reserves, and this Agreement is without prejudice to, all
rights against Settling Parties with respect to all other matters,
including but not limited to:
a. liability for failure of Settling Parties to meet a requirement
of this Agreement;
b. liability for costs incurred or to be incurred by the United
States that are not within the definition of Past Response Costs;
c. liability for injunctive relief or administrative order
enforcement under Section 106 of CERCLA, 42 U.S.C. Sec. 9606;
d. criminal liability; and
e. liability for damages for injury to, destruction of, or loss of
natural resources, and for the costs of any natural resource damage
assessments.
22. Nothing in this Agreement is intended to be nor shall it be
construed as a release, covenant not to sue, or compromise of any claim
or cause of action, administrative or judicial, civil or criminal, past
or future, in law or in equity, which the United States may have
against any person, firm, corporation or other entity not a signatory
to this Agreement.
IX. Covenant Not To Sue By Setting Parties
23. Settling Parties agree not to assert any claims or causes of
action against the United States, or its contractors or employees, with
respect to Past Response Costs or this Agreement, including but not
limited to:
a. any direct or indirect claim for reimbursement from the EPA
Hazardous Substance Superfund established by 26 U.S.C. Sec. 9507, based
on Sections 106(b)(2), 107, 111, 112, or 113 of CERCLA, 42 U.S.C.
Secs. 9606(b)(2), 9607, 9611, 9612, or 9613, or any other provision of
law;
b. any claims arising out of the response actions at the Site for
which the Past Response Costs were incurred; and
c. any claim against the United States pursuant to Sections 107 and
113 of CERCLA, 42 U.S.C. Secs. 9607 and 9613, relating to Past Response
Costs.4
\4\The settlement should, wherever possible, release or resolve
any claims by settling parties against the United States related to
the site. Where a claim is asserted by a potentially responsible
party, or the Region has any information suggesting federal agency
liability, all information relating to potential federal liability
should be provided to the affected agency and DOJ as soon as
possible in order to resolve any such issues in the settlement.
Settlement of any federal liability will require additional
revisions to this document, and model language will be provided
separately. Only in exceptional circumstances where federal
liability cannot be resolved in a timely manner in the settlement
should this provision be deleted and private parties be allowed to
reserve their rights.
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24. Nothing in this Agreement shall be deemed to constitute
approval or preauthorization of a claim within the meaning of Section
111 of CERCLA, 42 U.S.C. Sec. 9611, or 40 C.F.R. 300.700(d).
X. Effect of Settlement/Contribution Protection
25. Nothing in this Agreement shall be construed to create any
rights in, or grant any cause of action to, any person not a Party to
this Agreement. EPA and Settling Parties 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
[[Page 62455]]
relating in any way to the Site against any person not a Party hereto.
26. EPA and Settling Parties agree that the actions undertaken by
Settling Parties in accordance with this Agreement do not constitute an
admission of any liability by any Settling Party. Settling Parties do
not admit, and retain the right to controvert in any subsequent
proceedings other than proceedings to implement or enforce this
Agreement, the validity of the facts or allegations contained in
Section II of this Agreement.
27. The Parties agree that Settling Parties are entitled, as of the
effective date of this Agreement, to protection from contribution
actions or claims as provided by Sections 113(f)(2) and 122(h)(4) of
CERCLA, 42 U.S.C. Secs. 9613(f)(2) and 9622(h)(4), for ``matters
addressed'' in this Agreement. The ``matters addressed'' in this
Agreement are Past Response Costs.
28. Each Settling Party agrees that with respect to any suit or
claim for contribution brought by it for matters related to this
Agreement, it will notify EPA in writing no later than 60 days prior to
the initiation of such suit or claim. Each Settling Party also agrees
that, with respect to any suit or claim for contribution brought
against it for matters related to this Agreement, it will notify EPA in
writing within 10 days of service of the complaint or claim upon it. In
addition, each Settling Party shall notify EPA within 10 days of
service or receipt of any Motion for Summary Judgment and within 10
days of receipt of any order from a court setting a case for trial, for
matters related to this Agreement.
29. In any subsequent administrative or judicial proceeding
initiated by EPA, or by the United States on behalf of EPA, for
injunctive relief, recovery of response costs, or other appropriate
relief relating to the Site, Settling Parties shall not assert, and may
not maintain, any defense or claim based upon the principles of waiver,
res judicata, collateral estoppel, issue preclusion, claim-splitting,
or other defenses based upon any contention that the claims raised in
the subsequent proceeding were or should have been brought in the
instant case; provided, however, that nothing in this Paragraph affects
the enforceability of the covenant not to sue by EPA set forth in
Paragraph 20.
XI. Retention of Records
30. Until ____ years after the effective date of this Agreement,
each Settling Party shall preserve and retain all records and documents
now in its possession or control, or which come into its possession or
control, that relate in any manner to response actions taken at the
Site or to the liability of any person for response actions conducted
and to be conducted at the Site, regardless of any corporate retention
policy to the contrary.
31. After the conclusion of the document retention period in the
preceding paragraph, Settling Parties shall notify EPA at least 90 days
prior to the destruction of any such records or documents, and, upon
request by EPA, Settling Parties shall deliver any such records or
documents to EPA. Settling Parties may assert that certain documents,
records, or other information are privileged under the attorney-client
privilege or any other privilege recognized by federal law. If Settling
Parties assert such a privilege, they shall provide EPA with the
following: 1) the title of the document, record, or information; 2) the
date of the document, record, or information; 3) the name and title of
the author of the document, record, or information; 4) the name and
title of each addressee and recipient; 5) a description of the subject
of the document, record, or information; and 6) the privilege asserted.
However, no documents, reports, or other information created or
generated pursuant to the requirements of this or any other judicial or
administrative settlement with the United States shall be withheld on
the grounds that they are privileged. If a claim of privilege applies
only to a portion of a document, the document shall be provided to EPA
in redacted form to mask the privileged information only. Settling
Parties shall retain all records and documents that they claim to be
privileged until EPA has had a reasonable opportunity to dispute the
privilege claim and any such dispute has been resolved in Settling
Parties' favor.
32. By signing this Agreement, each Settling Party certifies
individually that, to the best of its knowledge and belief, it has:
a. conducted a thorough, comprehensive, good faith search for
documents, and has fully and accurately disclosed to EPA, all
information currently in its possession, or in the possession of its
officers, directors, employees, contractors or agents, which relates in
any way to the ownership, operation or control of the Site, or to the
ownership, possession, generation, treatment, transportation, storage
or disposal of a hazardous substance, pollutant or contaminant at or in
connection with the Site;
b. not altered, mutilated, discarded, destroyed or otherwise
disposed of any records, documents or other information relating to its
potential liability regarding the Site, after notification of potential
liability or the filing of a suit against the Settling Party regarding
the Site; and
c. fully complied with any and all EPA requests for information
regarding the Site pursuant to Sections 104(e) and 122(e) of CERCLA, 42
U.S.C. Secs. 9604(e) and 9622(e) [insert, if applicable, ``, and
Section 3007 of the Resource, Conservation and Recovery Act, 42 U.S.C.
Sec. 6927.'']
XII. Notices and Submissions
33. Whenever, under the terms of this Agreement, notice is required
to be given or a document is required to be sent by one Party to
another, it shall be directed to the individuals at the addresses
specified below, unless those individuals or their successors give
notice of a change to the other Parties in writing. Written notice as
specified herein shall constitute complete satisfaction of any written
notice requirement of this Agreement with respect to EPA and Settling
Parties.
As to EPA:
[Insert names and addresses of EPA Regional contacts, usually the ORC
attorney and the RPM or Project Coordinator]
As to Settling Parties:
[Insert name of one person who will serve as the contact for all
Settling Parties]
XIII. INTEGRATION[/APPENDICES]
34. This Agreement and its appendices constitute the final,
complete and exclusive agreement and understanding among the Parties
with respect to the settlement embodied in this Agreement. The Parties
acknowledge that there are no representations, agreements or
understandings relating to the settlement other than those expressly
contained in this Agreement. [The following appendices are attached to
and incorporated into this Agreement: ``Appendix A is ________; etc.'']
XIV. Public Comment
35. This Agreement shall be subject to a public comment period of
not less than 30 days pursuant to Section 122(i) of CERCLA, 42 U.S.C.
Sec. 9622(i). In accordance with Section 122(i)(3) of CERCLA, EPA may
modify or withdraw its consent to this Agreement if comments received
disclose facts or considerations which indicate that this Agreement is
inappropriate, improper or inadequate.
[[Page 62456]]
____. Attorney General Approval
[Note: This section should be used if Attorney General approval
is required for this settlement because total past and projected
response costs at the site will exceed $500,000, excluding interest,
and the agreement compromises a claim (i.e., recovers less than 100%
of past costs, including accrued interest). If Attorney General
approval is required, the Region should consult with DOJ during the
negotiations process and should obtain written DOJ approval of the
settlement before publishing notice of the proposed agreement in the
Federal Register pursuant to Section 122(i) of CERCLA. The Region
should discuss with DOJ any significant comments received during the
public comment period. If the Region believes that the agreement
should be modified based upon public comment, the Region should
discuss with the DOJ attorney assigned to the case whether the
proposed change will require formal re-approval by DOJ. If this
section is used, renumber the Effective Date section and paragraph.]
[[____. The Attorney General or [his/her] designee has approved the
settlement embodied in this Agreement in accordance with Section
122(h)(1) of CERCLA, 42 U.S.C. Sec. 9622(h)(1).]]
XV. Effective Date
36. The effective date of this Agreement shall be the date upon
which EPA issues written notice that the public comment period pursuant
to Paragraph 35 has closed and that comments received, if any, do not
require modification of or EPA withdrawal from this Agreement.
It is so agreed:
U.S. Environmental Protection Agency
By:--------------------------------------------------------------------
[Name]
Regional Administrator, Region ____
-----------------------------------------------------------------------
[Date]
[Note: If the Regional Administrator has redelegated authority
to enter into Section 122(h) settlements, insert name and title of
delegated official.]
The undersigned settling party enters into this Agreement in the
matter of [insert U.S. EPA docket number], relating to the [insert
site name and location]:
For Settling Party:
-----------------------------------------------------------------------
[Name]
-----------------------------------------------------------------------
[Address]
By:--------------------------------------------------------------------
[Name]
-----------------------------------------------------------------------
[Date]
[FR Doc. 95-29745 Filed 12-5-95; 8:45 am]
BILLING CODE 6560-50-P
