[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Notices]
[Pages 38817-38837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18482]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5265-1]
Superfund Program; Revised Model CERCLA RD/RA Consent Decree
AGENCY: Environmental Protection Agency.
ACTION: Notice.
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SUMMARY: The Agency is today publishing a revised version of the Model
CERCLA RD/RA Consent Decree. The revised Model, which will supersede
the 1991 interim Model, has been jointly modified by EPA and the
Department of Justice on the basis of experience to date. The principal
impetus behind the important substantive changes contained in the
revised Model has been a desire to enhance the fairness and increase
the number of settlements in which potentially responsible parties
agree to implement government-selected remedies at Superfund sites. By
publishing the revised Model EPA seeks to broadly inform affected
members of the public of changes in the federal government's policy
with respect to settlements for the performance of remedial design/
remedial action (RD/RA).
FOR FURTHER INFORMATION CONTACT: Steve Botts, Mail Code 2272, Office of
Enforcement and Compliance Assurance, U.S. Environmental Protection
Agency, 401 M Street, SW., Washington, DC 20460, (202) 260-5787.
Steven A. Herman,
Assistant Administrator, Office of Enforcement and Compliance
Assurance.
Memorandum
Subject: Final Revised Model CERCLA RD/RA Consent Decree
From:
Steven A. Herman, Assistant Administrator for Enforcement, and
Compliance Assurance
Lois Schiffer, Assistant Attorney General for Environment and
Natural Resources, U.S. Department of Justice
To: Regional Administrators, Regions I-X
Attached is the final version of the revised Model CERCLA RD/RA
Consent Decree. This document supplants the Interim Model CERCLA RD/RA
Consent Decree published in the July 8, 1991 Federal Register (56 FR
30996).
Summary
The Model has been successful in achieving, as one of its main
goals, a reduction in the amount of time spent on drafting and
negotiating individual consent decrees, allowing settlements to be
reached more quickly and with fewer transaction costs. The Model also
has been effective in ensuring that consent decrees for remedial
design/remedial action protect the interests of the public and assure
the accomplishment of the important cleanup objectives of the Superfund
program.
However, there have been persistent complaints from potentially
responsible
[[Page 38818]]
parties (``PRPs'') that the Model is overly stringent in certain
respects. At a number of sites PRPs have indicated that the Model was
an impediment to settlement, contributing to an increase in the need to
use unilateral orders to accomplish cleanup. Since settlement requires
agreement by both sides, we have taken seriously comments by PRPs
regarding provisions that they claim create serious obstacles to
settlement.
The revised Model represents a major effort to respond to PRP
concerns and to protect the interests of the people of the United
States. The revised Model also clarifies provisions whose meaning was
unclear and brings the Model RD/RA Consent Decree into conformity with
other model settlement documents being developed by EPA and the
Department of Justice. The new Model decree reflects the sustained
efforts of a Headquarters/Region/ DOJ workgroup and considerable input
from numerous regional personnel.
Specific Revisions From Old Model
Additional Response Actions
The ``Additional Response Actions'' section in the old Model has
been the subject of by far the most frequent and vociferous criticism
by PRPs. This provision required the settling defendants to undertake
any additional response actions that EPA may later determine to be
necessary in the event that the original remedial action fails to meet
the ``performance standards'' specified in the Decree. PRPs
characterized this obligation as a ``blank check'' that unfairly
subjected them to potentially large and unknown costs. Some PRPs
indicated that, although they recognize the need for EPA to reserve its
rights to seek additional work in the event of remedy failure, it is
unfair and unduly burdensome to require PRPs to accept the obligation
to perform such unknown work as an affirmative obligation under the
Decree.
We are addressing this concern by deleting the ``Additional
Response Actions'' section of the Interim Model, in favor of two new
provisions addressing the questions of remedy failure and modifications
of the remedial action plan that may be needed as the remedy is
implemented.
Modification of the Statement of Work
First, a new paragraph entitled ``Modification of the Statement of
Work or Related Work Plans'' has been added to Section VI of the Model
(``Performance of the Work by settling defendants''). This provision
will enable EPA to require the settling defendants to implement
modifications to the Statement of Work or ``SOW'' (usually attached to
the consent decree), or to work plans submitted under the decree, if
such modifications become necessary as the remedy is implemented. Such
modifications, however, may be required only to the extent they are
``consistent with the scope of the remedy selected in the ROD'' (Record
of Decision) that the settling defendants have agreed to implement. In
order to assure that there is clarity and a common understanding about
the scope of the settling defendants' obligations under this provision,
the revised Model calls for a site-specific definition of ``the scope
of the remedy selected in the ROD'' to be drafted and negotiated in
each decree. This definition should be crafted in terms of the remedial
approach stated in the ROD, and not in terms of performance standards
or other general remedial goals.
Reservation of Rights
Second, the revised Model contains a new provision in the ``General
Reservations of Rights'' paragraph in Section XXI (Covenants Not To Sue
by Plaintiffs), that allows the government to seek, in new litigation,
additional response actions necessary to achieve performance standards
that are beyond the scope of the remedy selected in the ROD. This
reservation is significantly different from the ``Additional Response
Actions'' provision of the current model, in that it does not impose
the obligation to perform such response actions as an affirmative
obligation under the Decree. This new reservation is accompanied by a
footnote stating that it may be omitted in appropriate circumstances,
such as in exchange for a premium or other consent decree provision(s),
taking into account the risk (of remedy failure) being assumed by EPA.
These revisions represent a significant departure from the approach
of the ``Additional Response Actions'' Section of the old Model. We
believe they strike a careful balance between the public's interest in
achieving successful remediation of Superfund sites through consent
decrees, and the settling defendants' interest in obtaining reasonable
certainty regarding the scope of the affirmative obligations they are
accepting in entering into a settlement. The revisions address the
``blank check'' objection to the old Model by limiting the
modifications to the work that EPA can require under the Decree to
modifications that are consistent with the scope of the remedy set
forth in the ROD. By focusing negotiations on the site-specific
definition of this term, the revised Model is intended to afford
settling defendants certainty regarding the breadth of their
affirmative obligations.
Where the new reservation of rights provision is used, settling
defendants retain all defenses to liability, as well as their ability
to challenge EPA's remedial determinations. Thus, instead of requiring
settling defendants to perform additional, unknown response actions,
this provision simply reserves the rights and arguments of both sides
with respect to liability for additional response actions, beyond the
scope of the ROD, that are necessary to achieve performance standards.
Moreover, the Regions will have substantial discretion to omit this
reservation in appropriate circumstances, taking into account the risk
being assumed by the agency. The magnitude of this risk depends on such
factors as the nature and extent of the contamination, physical site
conditions, and the reliability of the selected remedial technology. In
many cases, this risk may not be substantial, and the considerations
(such as a premium or other consent decree provisions) that the
government should obtain in consideration for its deletion should
reflect this circumstance. Conversely, in those cases where the risk is
particularly acute, it may be necessary to retain the reservation or to
require a more substantial premium or other consideration in return for
its deletion.
In EPA's experience, there have been few situations in which it has
been necessary to seek further response actions that go beyond the
scope of the remedy selected in the ROD. As the agency's experience
with various site conditions, contaminants, and remedial technologies
increases, we expect these situations to become even more rare. The
ultimate consideration in omitting the new reservation will be whether
the final decree, taken as a whole, represents an appropriate
settlement in light of all relevant factors, including the risk being
accepted by the government on behalf of the American public.
Other Revisions
As required by Section 122(f)(6) of CERCLA, the standard
reservations of liability contained in paragraphs 80 and 81 of the old
Model (the ``reopeners'' for ``unknown conditions'' and ``new
information'') are retained. In addition, the revised Model retains the
provision of Paragraph 22 of the old Model (in the ``Periodic Review''
provision),1 pursuant to which Settling defendants can be
[[Page 38819]]
required to perform further response actions under the Decree if these
reopener conditions develop. However, in recognition that the main
purpose of this provision is to avoid disputes over liability in
``reopener litigation'' (which are likely to be complicated by loss of
evidence over time), the revised Model recognizes that there may be
cases in which this provision is not necessary or the problem it
addresses can be resolved by an alternative provision.
\1\ This section is renumbered as Section VII of the revised
Model, titled ``Remedy Review.''
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A number of other important revisions to the Model have also been
adopted relating to such issues as stipulated penalties, EPA review of
submissions, indemnification, force majeure, and a waiver of
contribution claims against very small (``de micromis'') contributors.
Additional modifications have been made to clarify certain provisions
and to correct technical errors.
Consultation Procedures
A memorandum accompanying the 1991 version of the Model required
Regional offices to consult with EPA Headquarters before offering to
PRPs consent decree language significantly at variance with language
contained in 10 identified provisions of the Model. In light of
Regional experience with the Model to date and in an effort to further
streamline the process of finalizing and entering RD/RA consent
decrees, OECA has decided to waive this advance consultation
requirement.
In lieu of consulting with the Regions in advance of adopting a
variant provision, OECA will perform a periodic review of selected
provisions from final RD/RA consent decrees to ensure that such
provisions remain protective of the interests of the public.
Notwithstanding the elimination of the advance consultation
requirement, the Regions should continue to comply with the pre-
existing delegations (as modified by a recent memorandum entitled
``Office of Enforcement and Compliance Assurance and Regional Roles in
Civil Judicial and Administrative Site Remediation Enforcement Cases''
(May 19, 1995). Those delegations require Headquarters' concurrence in
settlements which significantly deviate from written EPA policy.
Headquarters also expects Regions to engage in timely and effective
communication concerning issues that arise in use of the revised Model,
and to refrain from development of regional models that can have the
effect of producing inconsistency across the country.
In addition, Regions must continue to consult and work with the
Department of Justice in drafting and negotiating all consent decrees.
Effective Date
The revised Model is effective immediately on the date of this
memorandum. It should be used as the basis for all consent decrees
which accompany special notice letters sent to the PRPs after that
date. In cases where a special notice letter for the site or an initial
version of the consent decree has been conveyed to the PRPs prior to
the date of this memorandum, but settling defendants have not signed a
consent decree as of that date, the government negotiation team will
have discretion as to whether to employ the old Model or the revised
Model as guidance. In cases where the old Model is used, the United
States generally will entertain proposals from PRPs for inclusion of
language from the revised Model only to the extent that such proposals
do not upset the balance struck in the negotiations between the parties
up to that point and do not unduly extend or delay negotiation of the
final settlement.
The United States will not renegotiate any RD/RA consent decree
which has been signed by settling defendants as of the date of this
memorandum.
If you have any questions regarding the revised Model Consent
Decree, please contact Steve Botts of OECA's Regional Support Division
((202) 260-5787) or Susan Boushell of OECA's Policy and Program
Evaluation Division ((703) 603-9063).
cc:
Jean C. Nelson, General Counsel
Kathryn S. Schmoll, Comptroller
Stephen D. Luftig, Director, Office of Emergency and Remedial
Response
Regional Counsel, Regions I-X
Waste Management Division Directors, Regions I-X
United States Environmental Protection Agency Model CERCLA RD/RA
Consent--Decree July, 1995
This model and any internal procedures adopted for its
implementation and use are intended solely as guidance for employees of
the U.S. Environmental Protection Agency. They do not constitute
rulemaking by the Agency and may not be relied upon to create a right
or benefit, substantive or procedural, enforceable at law or in equity,
by any person. The Agency may take action at variance with this model
or its internal implementing procedures.
Table of Contents--Model CERCLA RD/RA Consent Decree
I. Background
II. Jurisdiction
III. Parties Bound
IV. Definitions
V. General Provisions
VI. Performance of the Work by Settling Defendants
VII. Remedy Review
VIII. Quality Assurance, Sampling, and Data Analysis
IX. Access [and Institutional Controls]
X. Reporting Requirements
XI. EPA Approval of Plans and Other Submissions
XII. Project Coordinators
XIII. Assurance of Ability to Complete Work
XIV. Certification of Completion
XV. Emergency Response
XVI. Reimbursement of Response Costs
XVII. Indemnification and Insurance
XVIII. Force Majeure
XIX. Dispute Resolution
XX. Stipulated Penalties
XXI. Covenants Not to Sue by Plaintiff[s]
XXII. Covenants by Settling Defendants
XXIII. Effect of Settlement; Contribution Protection
XXIV. Access to Information
XXV. Retention of Records
XXVI. Notices and Submissions
XXVII. Effective Date
XXVIII. Retention of Jurisdiction
XXIX. Appendices
XXX. Community Relations
XXXI. Modification
XXXII. Lodging and Opportunity for Public Comment
XXXIII. Signatories/Service
In the United States District Court for the District of
____________ Division
United States of America [and State of ____________] Plaintiffs,
v. ______________, Inc., Defendants. Civil Action No.
Consent Decree
I. Background
A. The United States of America (``United States''), on behalf of
the Administrator of the United States Environmental Protection Agency
(``EPA''), filed a complaint in this matter pursuant to Sections 106
and 107 of the Comprehensive Environmental Response, Compensation, and
Liability Act (``CERCLA''), 42 U.S.C. 9606, 9607.
B. The United States in its complaint seeks, inter alia: (1)
reimbursement of costs incurred by EPA and the Department of Justice
for response actions at the ________ Superfund Site in ________,
________, together with accrued interest; and (2) performance of
studies and response work by the defendants at the Site consistent with
the National Contingency Plan, 40 CFR Part 300 (as amended) (``NCP'').
C. In accordance with the NCP and Section 121(f)(1)(F) of CERCLA,
42 U.S.C. 9621(f)(1)(F), EPA notified the State of ________ (the
``State'') on ________, 19__ of negotiations with potentially
responsible parties regarding the implementation of the remedial design
and remedial action for the Site, and EPA has provided the State with
an opportunity to participate in such
[[Page 38820]]
negotiations and be a party to this Consent Decree.
[D. The State of ________ (the ``State'') has also filed a
complaint against the defendants in this Court alleging that the
defendants are liable to the State under Section 107 of CERCLA, 42
U.S.C. 9607, and [list state laws cited in the State's complaint], for:
________.]
E. In accordance with Section 122(j)(1) of CERCLA, 42 U.S.C.
9622(j)(1), EPA notified the [insert the relevant Federal natural
resource trustee(s)] on ________, 19__ of negotiations with potentially
responsible parties regarding the release of hazardous substances that
may have resulted in injury to the natural resources under Federal
trusteeship and encouraged the trustee(s) to participate in the
negotiation of this Consent Decree.
F. The defendants that have entered into this Consent Decree
(``Settling Defendants'') do not admit any liability to the
Plaintiff[s] arising out of the transactions or occurrences alleged in
the complaint[s], nor do they acknowledge that the release or
threatened release of hazardous substance(s) at or from the Site
constitutes an imminent or substantial endangerment to the public
health or welfare or the environment.
G. Pursuant to Section 105 of CERCLA, 42 U.S.C. 9605, EPA placed
the Site on the National Priorities List, set forth at 40 CFR Part 300,
Appendix B, by publication in the Federal Register on ________, 19__,
________ Fed. Reg. ____.
H. In response to a release or a substantial threat of a release of
a hazardous substance(s) at or from the Site, EPA [or the Settling
Defendants, other PRPs at the Site, or the State] commenced on
________, 19__, a Remedial Investigation and Feasibility Study (``RI/
FS'') for the Site pursuant to 40 CFR 300.430.
I. EPA [or the Settling Defendants, other PRPs at the Site, or the
State] completed a Remedial Investigation (``RI'') Report on ________,
__, 19__, and EPA [or the Settling Defendants, other PRPs at the Site,
or the State] completed [issued] a Feasibility Study (``FS'') Report on
________, 19__.
J. Pursuant to Section 117 of CERCLA, 42 U.S.C. 9617, EPA published
notice of the completion of the FS and of the proposed plan for
remedial action on ________, 19__, in a major local newspaper of
general circulation. EPA provided an opportunity for written and oral
comments from the public on the proposed plan for remedial action. A
copy of the transcript of the public meeting is available to the public
as part of the administrative record upon which the Regional
Administrator based the selection of the response action.
K. The decision by EPA on the remedial action to be implemented at
the Site is embodied in a final Record of Decision (``ROD''), executed
on ________, 19__, [on which the State had a reasonable opportunity to
review and comment/on which the State has given its concurrence.] The
ROD includes [EPA's explanation for any significant differences between
the final plan and the proposed plan as well as ]a responsiveness
summary to the public comments. Notice of the final plan was published
in accordance with Section 117(b) of CERCLA.
L. Based on the information presently available to EPA [and the
State], EPA [and the State] believe[s] that the Work will be properly
and promptly conducted by the Settling Defendants if conducted in
accordance with the requirements of this Consent Decree and its
appendices.
M. Solely for the purposes of Section 113(j) of CERCLA, the
Remedial Action selected by the ROD and the Work to be performed by the
Settling Defendants shall constitute a response action taken or ordered
by the President.
N. The Parties recognize, and the Court by entering this Consent
Decree finds, that this Consent Decree has been negotiated by the
Parties in good faith and implementation of this Consent Decree will
expedite the cleanup of the Site and will avoid prolonged and
complicated litigation between the Parties, and that this Consent
Decree is fair, reasonable, and in the public interest.
Now, Therefore, it is hereby Ordered, Adjudged, and Decreed:
II. Jurisdiction
1. This Court has jurisdiction over the subject matter of this
action pursuant to 28 U.S.C. 1331 and 1345, and 42 U.S.C. 9606, 9607,
and 9613(b). This Court also has personal jurisdiction over the
Settling Defendants. Solely for the purposes of this Consent Decree and
the underlying complaint[s], Settling Defendants waive all objections
and defenses that they may have to jurisdiction of the Court or to
venue in this District. Settling Defendants shall not challenge the
terms of this Consent Decree or this Court's jurisdiction to enter and
enforce this Consent Decree.
III. Parties Bound
2. This Consent Decree applies to and is binding upon the United
States [and the State] and upon Settling Defendants and their [heirs,]
successors and assigns. Any change in ownership or corporate status of
a Settling Defendant including, but not limited to, any transfer of
assets or real or personal property, shall in no way alter such
Settling Defendant's responsibilities under this Consent Decree.
3. Settling Defendants shall provide a copy of this Consent Decree
to each contractor hired to perform the Work (as defined below)
required by this Consent Decree and to each person representing any
Settling Defendant with respect to the Site or the Work and shall
condition all contracts entered into hereunder upon performance of the
Work in conformity with the terms of this Consent Decree. Settling
Defendants or their contractors shall provide written notice of the
Consent Decree to all subcontractors hired to perform any portion of
the Work required by this Consent Decree. Settling Defendants shall
nonetheless be responsible for ensuring that their contractors and
subcontractors perform the Work contemplated herein in accordance with
this Consent Decree. With regard to the activities undertaken pursuant
to this Consent Decree, each contractor and subcontractor shall be
deemed to be in a contractual relationship with the Settling Defendants
within the meaning of Section 107(b)(3) of CERCLA, 42 U.S.C.
9607(b)(3).
IV. Definitions
4. Unless otherwise expressly provided herein, 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 the appendices attached hereto and
incorporated hereunder, the following definitions shall apply:
``CERCLA'' shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601 et
seq.
``Consent Decree'' shall mean this Decree and all appendices
attached hereto (listed in Section XXIX). In the event of conflict
between this Decree and any appendix, this Decree shall control.
``Day'' shall mean a calendar day unless expressly stated to be a
working day. ``Working day'' shall mean a day other than a Saturday,
Sunday, or Federal holiday. In computing any period of time under this
Consent Decree, where the last day would fall on a Saturday, Sunday, or
Federal holiday, the period shall run until the close of business of
the next working day.
[[Page 38821]]
``EPA'' shall mean the United States Environmental Protection
Agency and any successor departments or agencies of the United States.
``____________'' shall mean the [Insert name of State pollution
control agency or environmental protection agency] and any successor
departments or agencies of the State. ``Future Response Costs'' shall
mean all costs, including, but not limited to, direct and indirect
costs, that the United States incur[s] in reviewing or developing
plans, reports and other items pursuant to this Consent Decree,
verifying the Work, or otherwise implementing, overseeing, or enforcing
this Consent Decree, including, but not limited to, payroll costs,
contractor costs, travel costs, laboratory costs, the costs incurred
pursuant to Sections VII, IX (including, but not limited to, attorneys
fees and any monies paid to secure access and/or to secure
institutional controls, including the amount of just compensation), XV,
and Paragraph 85 of Section XXI. Future Response Costs shall also
include all Interim Response Costs and all Interest on the Past
Response Costs that has accrued pursuant to 42 U.S.C. 9607(a) during
the period from [insert the date identified in the Past Response Costs
definition] to the date of entry of this Consent Decree.
``Interim Response Costs'' shall mean all costs, including direct
and indirect costs, (a) paid by the United States in connection with
the Site between [insert the date identified in the Past Response Costs
definition] and the effective date of this Consent Decree, or (b)
incurred prior to the effective date of this Consent Decree but paid
after that date.
``Interest,'' shall mean interest at the rate specified for
interest on investments of the Hazardous Substance Superfund
established under Subchapter A of Chapter 98 of Title 26 of the U.S.
Code, compounded on October 1 of each year, in accordance with 42
U.S.C. 9607(a).
[Note: The following definition should be used where the Decree
contains a waiver of contribution rights against de micromis parties
as provided in the final Paragraph of Section XXII (Covenants by
Settling Defendants)].
[``Municipal Solid Waste'' shall mean all waste materials generated
by households, including single and multi-family residences, and hotels
and motels. The term also includes waste materials generated by
commercial, institutional, and industrial sources, to the extent such
wastes (A) are essentially the same as waste normally generated by
households, or (B) are collected and disposed of with other municipal
solid waste or sewage sludge as part of normal municipal solid waste
collection services and, regardless of when generated, would be
considered conditionally exempt small quantity generator waste under
regulations issued pursuant to Section 3001(d)(4) of the Solid Waste
Disposal Act (42 U.S.C. 6921(d)(4)). Examples of Municipal Solid Waste
include food and yard waste, paper, clothing, appliances, consumer
product packaging, disposable diapers, office supplies, cosmetics,
glass and metal food containers, elementary or secondary school science
laboratory waste, and household hazardous waste. The term does not
include combustion ash generated by resource recovery facilities or
municipal incinerators, or waste from manufacturing or processing
(including pollution control) operations not essentially the same as
waste normally generated by households.]
``National Contingency Plan'' or ``NCP'' shall mean the National
Oil and Hazardous Substances Pollution Contingency Plan promulgated
pursuant to Section 105 of CERCLA, 42 U.S.C. 9605, codified at 40
C.F.R. Part 300, and any amendments thereto.
``Operation and Maintenance'' or ``O & M'' shall mean all
activities required to maintain the effectiveness of the Remedial
Action as required under the Operation and Maintenance Plan approved or
developed by EPA pursuant to this Consent Decree and the Statement of
Work (SOW).
[Note: The following definition should be used where the Decree
contains a waiver of contribution rights against de micromis parties
as provided in the final Paragraph of Section XXII (Covenants by
Settling Defendants)].
[``Owner, Operator, or Lessee of Residential Property'' shall mean
a person who owns, operates, manages, or leases Residential Property
and who uses or allows the use of the Residential Property exclusively
for residential purposes.]
``Owner Settling Defendants'' shall mean the Settling Defendants
listed in Appendix E.
``Paragraph'' shall mean a portion of this Consent Decree
identified by an arabic numeral or an upper case letter.
``Parties'' shall mean the United States [, the State of ________,]
and the Settling Defendants.
``Past Response Costs'' shall mean all costs, including, but not
limited to, direct and indirect costs, that the United States paid at
or in connection with the Site through [insert the date of the most
recent cost update], plus Interest on all such costs which has accrued
pursuant to 42 U.S.C. 9607(a) through such date.
``Performance Standards'' shall mean the cleanup standards and
other measures of achievement of the goals of the Remedial Action, set
forth in Section __ of the ROD and Section __ of the SOW [and any
modified standards established by EPA pursuant to the ``technical
impracticability'' provision of Paragraph 13].
``Plaintiff[s]'' shall mean the United States [and the State of
________].
``RCRA'' shall mean the Solid Waste Disposal Act, as amended, 42
U.S.C. 6901 et seq. (also known as the Resource Conservation and
Recovery Act).
``Record of Decision'' or ``ROD'' shall mean the EPA Record of
Decision relating to the [Site or __ Operable Unit at the Site] signed
on ________, 19__, by the Regional Administrator, EPA Region __, or
his/her delegate, and all attachments thereto. The ROD is attached as
Appendix A.
``Remedial Action'' shall mean those activities, except for
Operation and Maintenance, to be undertaken by the Settling Defendants
to implement the ROD, in accordance with the SOW and the final Remedial
Design and Remedial Action Work Plans and other plans approved by EPA.
``Remedial Action Work Plan'' shall mean the document developed
pursuant to Paragraph 12 of this Consent Decree and approved by EPA,
and any amendments thereto.
``Remedial Design'' shall mean those activities to be undertaken by
the Settling Defendants to develop the final plans and specifications
for the Remedial Action pursuant to the Remedial Design Work Plan.
``Remedial Design Work Plan'' shall mean the document developed
pursuant to Paragraph 11 of this Consent Decree and approved by EPA,
and any amendments thereto.
[Note: The following definition should be used where the Decree
contains a waiver of contribution rights against de micromis parties
as provided in the final Paragraph of Section XXII (Covenants by
Settling Defendants)]
[''Residential Property'' shall mean single or multi-family
residences, including accessory land, buildings, or improvements
incidental to such dwellings, which are exclusively for residential
use.]
``Section'' shall mean a portion of this Consent Decree identified
by a roman numeral.
``Settling Defendants'' shall mean those Parties identified in
Appendices D (Non-Owner Settling Defendants) and E (Owner Settling
Defendants).
[Note: The following definition should be used where the Decree
contains a waiver of
[[Page 38822]]
contribution rights against de micromis parties as provided in the
final Paragraph of Section XXII (Covenants by Settling Defendants)]
[''Sewage Sludge'' means solid, semisolid, or liquid residue
removed during the treatment of municipal waste water, domestic sewage,
or other waste water at or by publicly owned or federally owned
treatment works.]
``Site'' shall mean the ________ Superfund Site, [encompassing
approximately __ acres, located at [address or description of location]
in [name of city], ____ County, [name of state] and depicted generally
on the map attached as Appendix C.]
[Note: The definition of ``Site'' affects the scope of the covenants
not to sue. The definition used should conform with the intended
scope of the covenants and the general reservations provided in
Section XXI (Covenants Not to Sue by Plaintiff[s].]
[Note: The following two definitions should be used where the
Decree contains a waiver of contribution rights against de micromis
parties as provided in the final Paragraph of Section XXII
(Covenants by Settling Defendants)]
[''Small Business'' shall mean any business entity that employs no
more than 100 individuals and is a ``small business concern'' as
defined under the Small Business Act (15 U.S.C. 631 et seq.).
``Small Nonprofit Organization'' shall mean any organization that
does not distribute any part of its income or profit to its members,
directors, or officers, employs no more than 100 paid individuals at
the involved chapter, office, or department, and was recognized as a
nonprofit organization under Section 501(c)(3) of the Internal Revenue
Code of 1986.]
``State'' [or ``Commonwealth''] shall mean the State [or
Commonwealth] of ______________________________.
[Note: Where the state is a party to the consent decree,
definitions of ``State Past Response Costs'' and ``State Future
Response Costs'' will need to be added to this section as
appropriate.]
``Statement of Work'' or ``SOW'' shall mean the statement of work
for implementation of the Remedial Design, Remedial Action, and
Operation and Maintenance at the Site, as set forth in Appendix B to
this Consent Decree and any modifications made in accordance with this
Consent Decree.
``Supervising Contractor'' shall mean the principal contractor
retained by the Settling Defendants to supervise and direct the
implementation of the Work under this Consent Decree.
``United States'' shall mean the United States of America.
``Waste Material'' shall mean (1) any ``hazardous substance'' under
Section 101(14) of CERCLA, 42 U.S.C. 9601(14); (2) any pollutant or
contaminant under Section 101(33), 42 U.S.C. 9601(33); [(3) any ``solid
waste'' under Section 1004(27) of RCRA, 42 U.S.C. 6903(27); and (4) any
``hazardous material'' under [insert appropriate State statutory
citation].
``Work'' shall mean all activities Settling Defendants are required
to perform under this Consent Decree, except those required by Section
XXV (Retention of Records).
V. General Provisions
5. Objectives of the Parties
The objectives of the Parties in entering into this Consent Decree
are to protect public health or welfare or the environment at the Site
by the design and implementation of response actions at the Site by the
Settling Defendants, to reimburse response costs of the Plaintiff[s],
and to resolve the claims of Plaintiff[s] against Settling Defendants
as provided in this Consent Decree.
6. Commitments by Settling Defendants
a. Settling Defendants shall finance and perform the Work in
accordance with this Consent Decree, the ROD, the SOW, and all work
plans and other plans, standards, specifications, and schedules set
forth herein or developed by Settling Defendants and approved by EPA
pursuant to this Consent Decree. Settling Defendants shall also
reimburse the United States [and the State] for Past Response Costs and
Future Response Costs as provided in this Consent Decree.
b. The obligations of Settling Defendants to finance and perform
the Work and to pay amounts owed the United States [and the State]
under this Consent Decree are joint and several. In the event of the
insolvency or other failure of any one or more Settling Defendants to
implement the requirements of this Consent Decree, the remaining
Settling Defendants shall complete all such requirements.
7. Compliance With Applicable Law
All activities undertaken by Settling Defendants pursuant to this
Consent Decree shall be performed in accordance with the requirements
of all applicable federal and state laws and regulations. Settling
Defendants must also comply with all applicable or relevant and
appropriate requirements of all Federal and state environmental laws as
set forth in the ROD and the SOW. The activities conducted pursuant to
this Consent Decree, if approved by EPA, shall be considered to be
consistent with the NCP.
8. Permits
a. As provided in Section 121(e) of CERCLA and Section 300.400(e)
of the NCP, no permit shall be required for any portion of the Work
conducted entirely on-site (i.e., within the areal extent of
contamination or in very close proximity to the contamination and
necessary for implementation of the Work). Where any portion of the
Work that is not on-site requires a federal or state permit or
approval, Settling Defendants shall submit timely and complete
applications and take all other actions necessary to obtain all such
permits or approvals.
b. The Settling Defendants may seek relief under the provisions of
Section XVIII (Force Majeure) of this Consent Decree for any delay in
the performance of the Work resulting from a failure to obtain, or a
delay in obtaining, any permit required for the Work.
c. This Consent Decree is not, and shall not be construed to be, a
permit issued pursuant to any federal or state statute or regulation.
[Note: For Consent Decrees in which there is an Owner Settling
Defendant, add Paragraph 9, below.]
9. Notice of Obligations to Successors-in-Title
a. Within 15 days after the entry of this Consent Decree, the Owner
Settling Defendant(s) shall record [a certified copy of this Consent
Decree] [notice of the entry of this Consent Decree] with the
Recorder's Office [or Registry of Deeds or other appropriate office],
____________________________ County, State of ________________________.
Thereafter, each deed, title, or other 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.
b. The obligations of each Owner Settling Defendant with respect to
the provision of access under Section IX (Access) [and the
implementation of institutional controls under Section ____] shall be
binding upon any and all such Settling Defendants and any and all
persons who 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
[[Page 38823]]
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 IX (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 obligations to provide or secure access pursuant to
Section IX, shall continue to be met by the Settling Defendants. In
addition, if the United States [and the State] approve[s], the grantee
may perform some or all of the Work under this Consent Decree. In no
event shall the conveyance of an interest in property that includes, or
is a portion of, the Site release or otherwise affect the liability of
the Settling Defendants to comply with the Consent Decree.
VI. Performance of the Work by Settling Defendants
[Note: Paragraphs 10-12, below, may be modified on a site-by-site
basis to reflect site needs and Regional practice.]
10. Selection of Supervising Contractor
a. All aspects of the Work to be performed by Settling Defendants
pursuant to Sections VI (Performance of the Work by Settling
Defendants), VII (Remedy Review), VIII (Quality Assurance, Sampling and
Data Analysis), and XV (Emergency Response) of this Consent Decree
shall be under the direction and supervision of the Supervising
Contractor, the selection of which shall be subject to disapproval by
EPA [after a reasonable opportunity for review and comment by the
State.] Within 10 days after the lodging of this Consent Decree,
Settling Defendants shall notify EPA [and the State] in writing of the
name, title, and qualifications of any contractor proposed to be the
Supervising Contractor. EPA will issue a notice of disapproval or an
authorization to proceed. If at any time thereafter, Settling
Defendants propose to change a Supervising Contractor, Settling
Defendants shall give such notice to EPA [and the State] and must
obtain an authorization to proceed from EPA[, after a reasonable
opportunity for review and comment by the State,] before the new
Supervising Contractor performs, directs, or supervises any Work under
this Consent Decree.
b. If EPA disapproves a proposed Supervising Contractor, EPA will
notify Settling Defendants in writing. Settling Defendants shall submit
to EPA [and the State] a list of contractors, including the
qualifications of each contractor, that would be acceptable to them
within 30 days of receipt of EPA's disapproval of the contractor
previously proposed. EPA will provide written notice of the names of
any contractor(s) that it disapproves and an authorization to proceed
with respect to any of the other contractors. Settling Defendants may
select any contractor from that list that is not disapproved and shall
notify EPA [and the State] of the name of the contractor selected
within 21 days of EPA's authorization to proceed.
c. If EPA fails to provide written notice of its authorization to
proceed or disapproval as provided in this Paragraph and this failure
prevents the Settling Defendants from meeting one or more deadlines in
a plan approved by the EPA pursuant to this Consent Decree, Settling
Defendants may seek relief under the provisions of Section XVIII (Force
Majeure) hereof.]
11. Remedial Design
a. Within ____ days after EPA's issuance of an authorization to
proceed pursuant to Paragraph 10, Settling Defendants shall submit to
EPA and the State a work plan for the design of the Remedial Action at
the Site (``Remedial Design Work Plan'' or ``RD Work Plan''). The
Remedial Design Work Plan shall provide for design of the remedy set
forth in the ROD, in accordance with the SOW and for achievement of the
Performance Standards and other requirements set forth in the ROD, this
Consent Decree and/or the SOW. Upon its approval by EPA, the Remedial
Design Work Plan shall be incorporated into and become enforceable
under this Consent Decree. Within ____ days after EPA's issuance of an
authorization to proceed, the Settling Defendants shall submit to EPA
and the State a Health and Safety Plan for field design activities
which conforms to the applicable Occupational Safety and Health
Administration and EPA requirements including, but not limited to, 29
C.F.R. 1910.120.
b. The Remedial Design Work Plan shall include plans and schedules
for implementation of all remedial design and pre-design tasks
identified in the SOW, including, but not limited to, plans and
schedules for the completion of: [List all items which should be
included in the Remedial Design Work Plan. This list will be based on
site-specific factors and may include the following items: (1) Design
sampling and analysis plan (including, but not limited to, a Remedial
Design Quality Assurance Project Plan (RD QAPP) in accordance with
Section VIII (Quality Assurance, Sampling and Data Analysis)); (2) a
treatability study; (3) a Pre-design Work Plan; (4) a preliminary
design submittal; (5) an intermediate design submittal; (6) a pre-
final/final design submittal; and (7) a Construction Quality Assurance
Plan.] In addition, the Remedial Design Work Plan shall include a
schedule for completion of the Remedial Action Work Plan.
c. Upon approval of the Remedial Design Work Plan by EPA, after a
reasonable opportunity for review and comment by the State, and
submittal of the Health and Safety Plan for all field activities to EPA
and the State, Settling Defendants shall implement the Remedial Design
Work Plan. The Settling Defendants shall submit to EPA and the State
all plans, submittals and other deliverables required under the
approved Remedial Design Work Plan in accordance with the approved
schedule for review and approval pursuant to Section XI (EPA Approval
of Plans and Other Submissions). Unless otherwise directed by EPA,
Settling Defendants shall not commence further Remedial Design
activities at the Site prior to approval of the Remedial Design Work
Plan.
d. The preliminary design submittal shall include, at a minimum,
the following: (1) Design criteria; (2) results of treatability
studies; (3) results of additional field sampling and pre-design work;
(4) project delivery strategy; (5) preliminary plans, drawings and
sketches; (6) required specifications in outline form; and (7)
preliminary construction schedule.
e. The intermediate design submittal, if required by EPA or if
independently submitted by the Settling Defendants, shall be a
continuation and expansion of the preliminary design. Any value
engineering proposals must be identified and evaluated during this
review.
f. The pre-final/final design submittal shall include, at a
minimum, the following: (1) Final plans and specifications; (2)
Operation and Maintenance Plan; (3) Construction Quality Assurance
Project Plan (CQAPP); (4) Field Sampling Plan (directed at measuring
progress towards
[[Page 38824]]
meeting Performance Standards); and (5) Contingency Plan. The CQAPP,
which shall detail the approach to quality assurance during
construction activities at the Site, shall specify a quality assurance
official (``QA Official''), independent of the Supervising Contractor,
to conduct a quality assurance program during the construction phase of
the project.]
12. Remedial Action
a. Within ____ days after the approval of the final design
submittal, Settling Defendants shall submit to EPA and the State, a
work plan for the performance of the Remedial Action at the Site
(``Remedial Action Work Plan''). The Remedial Action Work Plan shall
provide for construction and implementation of the remedy set forth in
the ROD and achievement of the Performance Standards, in accordance
with this Consent Decree, the ROD, the SOW, and the design plans and
specifications developed in accordance with the Remedial Design Work
Plan and approved by EPA. Upon its approval by EPA, the Remedial Action
Work Plan shall be incorporated into and become enforceable under this
Consent Decree. At the same time as they submit the Remedial Action
Work Plan, Settling Defendants shall submit to EPA and the State a
Health and Safety Plan for field activities required by the Remedial
Action Work Plan which conforms to the applicable Occupational Safety
and Health Administration and EPA requirements including, but not
limited to, 29 C.F.R. 1910.120.
b. The Remedial Action Work Plan shall include the following: [List
all activities for which methodologies, plans and schedules should be
included in the Remedial Action Work Plan. This list will be based on
site specific factors and may include the following: (1) The schedule
for completion of the Remedial Action; (2) method for selection of the
contractor; (3) schedule for developing and submitting other required
Remedial Action plans; (4) methodology for implementation of the
Construction Quality Assurance Plan; (5) a groundwater monitoring plan;
(6) methods for satisfying permitting requirements; (7) methodology for
implementation of the Operation and Maintenance Plan; (8) methodology
for implementation of the Contingency Plan; (9) tentative formulation
of the Remedial Action team; (10) construction quality control plan (by
constructor); and (11) procedures and plans for the decontamination of
equipment and the disposal of contaminated materials.] The Remedial
Action Work Plan also shall include a schedule for implementation of
all Remedial Action tasks identified in the final design submittal and
shall identify the initial formulation of the Settling Defendants'
Remedial Action Project Team (including, but not limited to, the
Supervising Contractor).
c. Upon approval of the Remedial Action Work Plan by EPA, after a
reasonable opportunity for review and comment by the State, Settling
Defendants shall implement the activities required under the Remedial
Action Work Plan. The Settling Defendants shall submit to EPA and the
State all plans, submittals, or other deliverables required under the
approved Remedial Action Work Plan in accordance with the approved
schedule for review and approval pursuant to Section XI (EPA Approval
of Plans and Other Submissions). Unless otherwise directed by EPA,
Settling Defendants shall not commence physical Remedial Action
activities at the Site prior to approval of the Remedial Action Work
Plan.
13. The Settling Defendants shall continue to implement the
Remedial Action and O&M until the Performance Standards are achieved
and for so long thereafter as is otherwise required under this Consent
Decree.
[Note: A ``technical impracticability'' provision may be inserted
here in appropriate cases. If a technical impracticability provision
is included, the definition of Performance Standards should be
modified to incorporate any modified Performance Standards that may
be issued by EPA pursuant to a technical impracticability
provision.]
14. Modification of the SOW or Related Work Plans
a. If EPA determines that modification to the work specified in the
SOW and/or in work plans developed pursuant to the SOW is necessary to
achieve and maintain the Performance Standards or to carry out and
maintain the effectiveness of the remedy set forth in the ROD, EPA may
require that such modification be incorporated in the SOW and/or such
work plans. Provided, however, that a modification may only be required
pursuant to this Paragraph to the extent that it is consistent with the
scope of the remedy selected in the ROD.
b. For the purposes of this Paragraph 14 and Paragraphs 48 and 49
only, the ``scope of the remedy selected in the ROD'' is: [site-
specific definition to be inserted here]
c. If Settling Defendants object to any modification determined by
EPA to be necessary pursuant to this Paragraph, they may seek dispute
resolution pursuant to Section XIX (Dispute Resolution), Paragraph 66
(record review). The SOW and/or related work plans shall be modified in
accordance with final resolution of the dispute.
d. Settling Defendants shall implement any work required by any
modifications incorporated in the SOW and/or in work plans developed
pursuant to the SOW in accordance with this Paragraph.
e. Nothing in this Paragraph shall be construed to limit EPA's
authority to require performance of further response actions as
otherwise provided in this Consent Decree.
15. Settling Defendants acknowledge and agree that nothing in this
Consent Decree, the SOW, or the Remedial Design or Remedial Action Work
Plans constitutes a warranty or representation of any kind by
Plaintiff[s] that compliance with the work requirements set forth in
the SOW and the Work Plans will achieve the Performance Standards.
16. Settling Defendants shall, prior to any off-Site shipment of
Waste Material from the Site to an out-of-state waste management
facility, provide written notification to the appropriate state
environmental official in the receiving facility's state and to the EPA
Project Coordinator of such shipment of Waste Material. However, this
notification requirement shall not apply to any off-Site shipments when
the total volume of all such shipments will not exceed 10 cubic yards.
a. The Settling Defendants shall include in the written
notification the following information, where available: (1) The name
and location of the facility to which the Waste Material are to be
shipped; (2) the type and quantity of the Waste Material to be shipped;
(3) the expected schedule for the shipment of the Waste Material; and
(4) the method of transportation. The Settling Defendants shall notify
the state in which the planned receiving facility is located of major
changes in the shipment plan, such as a decision to ship the Waste
Material to another facility within the same state, or to a facility in
another state.
b. The identity of the receiving facility and state will be
determined by the Settling Defendants following the award of the
contract for Remedial Action construction. The Settling Defendants
shall provide the information required by Paragraph 16.a as soon as
practicable after the award of the contract and before the Waste
Material is actually shipped.
VII. Remedy Review
[Note: This Section may need to be modified or omitted in consent
decrees where the
[[Page 38825]]
United States is not giving a full covenant not to sue subject to pre
and post certification reservations (e.g., non-final operable unit
consent decrees). This Section may also be omitted where no
hazardous substances, pollutants or contaminants will remain at the
site after completion of the remedial action.]
17. Periodic Review. Settling Defendants shall conduct any studies
and investigations as requested by EPA, in order to permit EPA to
conduct reviews of whether the Remedial Action is protective of human
health and the environment at least every five years as required by
Section 121(c) of CERCLA and any applicable regulations.
18. EPA Selection of Further Response Actions. If EPA determines,
at any time, that the Remedial Action is not protective of human health
and the environment, EPA may select further response actions for the
Site in accordance with the requirements of CERCLA and the NCP.
19. Opportunity To Comment. Settling Defendants and, if required by
Sections 113(k)(2) or 117 of CERCLA, the public, will be provided with
an opportunity to comment on any further response actions proposed by
EPA as a result of the review conducted pursuant to Section 121(c) of
CERCLA and to submit written comments for the record during the comment
period.
20. Settling Defendants' Obligation To Perform Further Response
Actions. If EPA selects further response actions for the Site, the
Settling Defendants shall undertake such further response actions to
the extent that the reopener conditions in Paragraph 81 or Paragraph 82
(United States' reservations of liability based on unknown conditions
or new information) are satisfied. Settling Defendants may invoke the
procedures set forth in Section XIX (Dispute Resolution) to dispute (1)
EPA's determination that the reopener conditions of Paragraph 81 or
Paragraph 82 of Section XXI (Covenants Not To Sue by Plaintiff[s]) are
satisfied, (2) EPA's determination that the Remedial Action is not
protective of human health and the environment, or (3) EPA's selection
of the further response actions. Disputes pertaining to whether the
Remedial Action is protective or to EPA's selection of further response
actions shall be resolved pursuant to Paragraph 65 (record review).
21. Submissions of Plans. If Settling Defendants are required to
perform the further response actions pursuant to Paragraph 20, they
shall submit a plan for such work to EPA for approval in accordance
with the procedures set forth in Section VI (Performance of the Work by
Settling Defendants) and shall implement the plan approved by EPA in
accordance with the provisions of this Decree.
[Alternative: The preceding two Paragraphs (20 & 21.) may be omitted
(1) for Settling Defendants whose liability has been established by
court order or judgment; (2) for Settling Defendants who agree to
admit or not to contest liability in the event that the United
States institutes an action for further relief based on the
reservations set forth in Paragraphs 81 or 82 of the Covenant Not To
Sue; or (3) in other appropriate cases.]
VIII. Quality Assurance, Sampling, and Data Analysis
22. Settling Defendants shall use quality assurance, quality
control, and chain of custody procedures for all [treatability, design,
compliance and monitoring] samples in accordance with ``EPA
Requirements for Quality Assurance Project Plans for Environmental Data
Operation,'' (EPA QA/R5; ``Preparing Perfect Project Plans,'' (EPA /
600/9-88/087), and subsequent amendments to such guidelines upon
notification by EPA to Settling Defendants of such amendment. Amended
guidelines shall apply only to procedures conducted after such
notification. Prior to the commencement of any monitoring project under
this Consent Decree, Settling Defendants shall submit to EPA for
approval, after a reasonable opportunity for review and comment by the
State, a Quality Assurance Project Plan (``QAPP'') that is consistent
with the SOW, the NCP and [applicable guidance documents.] If relevant
to the proceeding, the Parties agree that validated sampling data
generated in accordance with the QAPP(s) and reviewed and approved by
EPA shall be admissible as evidence, without objection, in any
proceeding under this Decree. Settling Defendants shall ensure that EPA
[and State] personnel and its [their] authorized representatives are
allowed access at reasonable times to all laboratories utilized by
Settling Defendants in implementing this Consent Decree. In addition,
Settling Defendants shall ensure that such laboratories shall analyze
all samples submitted by EPA pursuant to the QAPP for quality assurance
monitoring. Settling Defendants shall ensure that the laboratories they
utilize for the analysis of samples taken pursuant to this Decree
perform all analyses according to accepted EPA methods. Accepted EPA
methods consist of those methods which are documented in the
[``Contract Lab Program Statement of Work for Inorganic Analysis'' and
the ``Contract Lab Program Statement of Work for Organic Analysis,''
dated February 1988], and any amendments made thereto during the course
of the implementation of this Decree. Settling Defendants shall ensure
that all laboratories they use for analysis of samples taken pursuant
to this Consent Decree participate in an EPA or EPA-equivalent QA/QC
program. Settling Defendants shall ensure that all field methodologies
utilized in collecting samples for subsequent analysis pursuant to this
Decree will be conducted in accordance with the procedures set forth in
the QAPP approved by EPA.
23. Upon request, the Settling Defendants shall allow split or
duplicate samples to be taken by EPA [and the State] or their
authorized representatives. Settling Defendants shall notify EPA [and
the State] not less than [28] days in advance of any sample collection
activity unless shorter notice is agreed to by EPA. In addition, EPA
[and the State] shall have the right to take any additional samples
that EPA [or the State] deem necessary. Upon request, EPA [and the
State] shall allow the Settling Defendants to take split or duplicate
samples of any samples it [they] take[s] as part of the Plaintiff's[']
oversight of the Settling Defendants' implementation of the Work.
24. Settling Defendants shall submit to EPA [and the State] ____
copies of the results of all sampling and/or tests or other data
obtained or generated by or on behalf of Settling Defendants with
respect to the Site and/or the implementation of this Consent Decree
unless EPA agrees otherwise.
25. Notwithstanding any provision of this Consent Decree, the
United States [and the State] hereby retain[s] all of its [their]
information gathering and inspection authorities and rights, including
enforcement actions related thereto, under CERCLA, RCRA and any other
applicable statutes or regulations.
IX. Access [and Institutional Controls]
26. Commencing upon the date of lodging of this Consent Decree, the
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 any other property to
which access is required for the implementation of this Consent Decree,
to the extent access to the property is controlled by Settling
Defendants, for the purposes of conducting any activity related to this
Consent Decree including, but not limited to:
a. Monitoring the Work;
b. Verifying any data or information submitted to the United States
[or the State];
[[Page 38826]]
c. Conducting investigations relating to contamination at or near
the Site;
d. Obtaining samples;
e. Assessing the need for, planning, or implementing additional
response actions at or near the Site;
f. Inspecting and copying records, operating logs, contracts, or
other documents maintained or generated by Settling Defendants or their
agents, consistent with Section XXIV; and
g. Assessing Settling Defendants' compliance with this Consent
Decree.
27. To the extent that the Site or any other property to which
access is required for the implementation of this Consent Decree is
owned or controlled by persons other than Settling Defendants, Settling
Defendants shall use best efforts to secure from such persons access
for Settling Defendants, as well as for the United States [and the
State] and its [their] representatives, including, but not limited to,
their contractors, as necessary to effectuate this Consent Decree. For
purposes of this Paragraph ``best efforts'' includes the payment of
reasonable sums of money in consideration of access. [NOTE: It may be
appropriate to delete the preceding sentence where the property to
which access is needed is owned by a non-settling party who is a PRP.
(See guidance entitled ``Model RD/RA Consent Decree: Acceptable
Modifications to Model Language (Directive No. 2),'' March 25, 1992)]
If any access required to complete the Work is not obtained within 45
days of the date of lodging of this Consent Decree, or within 45 days
of the date EPA notifies the Settling Defendants in writing that
additional access beyond that previously secured is necessary, Settling
Defendants shall promptly notify the United States in writing, and
shall include in that notification a summary of the steps Settling
Defendants have taken to attempt to obtain access. The United States
[or the State] may, as it deems appropriate, assist Settling Defendants
in obtaining access. Settling Defendants shall reimburse the United
States [or the State], in accordance with the procedures in Section XVI
(Reimbursement of Response Costs), for all costs incurred by the United
States in obtaining access.
28. Notwithstanding any provision of this Consent Decree, the
United States [and the State] retain[s] all of its access authorities
and rights, including enforcement authorities related thereto, under
CERCLA, RCRA and any other applicable statute or regulations.
[Add institutional controls provisions as appropriate]
X. Reporting Requirements
29. In addition to any other requirement of this Consent Decree,
Settling Defendants shall submit to EPA and the State ____ copies of
written [monthly] progress reports that: (a) Describe the actions which
have been taken toward achieving compliance with this Consent Decree
during the previous [month]; (b) include a summary of all results of
sampling and tests and all other data received or generated by Settling
Defendants or their contractors or agents in the previous [month]; (c)
identify all work plans, plans and other deliverables required by this
Consent Decree completed and submitted during the previous [month]; (d)
describe all actions, including, but not limited to, data collection
and implementation of work plans, which are scheduled for the next [six
weeks] and provide other information relating to the progress of
construction, including, but not limited to, critical path diagrams,
Gantt charts and Pert charts; (e) include information regarding
percentage of completion, unresolved delays encountered or anticipated
that may affect the future schedule for implementation of the Work, and
a description of efforts made to mitigate those delays or anticipated
delays; (f) include any modifications to the work plans or other
schedules that Settling Defendants have proposed to EPA or that have
been approved by EPA; and (g) describe all activities undertaken in
support of the Community Relations Plan during the previous [month] and
those to be undertaken in the next [six weeks]. Settling Defendants
shall submit these progress reports to EPA and the State by the [tenth
day of every month] following the lodging of this Consent Decree until
[EPA notifies the Settling Defendants pursuant to Paragraph 49.b of
Section XIV (Certification of Completion).] If requested by EPA [or the
State], Settling Defendants shall also provide briefings for EPA [and
the State] to discuss the progress of the Work.
30. The Settling Defendants shall notify EPA of any change in the
schedule described in the monthly progress report for the performance
of any activity, including, but not limited to, data collection and
implementation of work plans, no later than seven days prior to the
performance of the activity.
31. Upon the occurrence of any event during performance of the Work
that Settling Defendants are required to report pursuant to Section 103
of CERCLA or Section 304 of the Emergency Planning and Community Right-
to-know Act (EPCRA), Settling Defendants shall within 24 hours of the
onset of such event orally notify the EPA Project Coordinator or the
Alternate EPA Project Coordinator (in the event of the unavailability
of the EPA Project Coordinator), or, in the event that neither the EPA
Project Coordinator or Alternate EPA Project Coordinator is available,
the Emergency Response Section, Region ____, United States
Environmental Protection Agency. These reporting requirements are in
addition to the reporting required by CERCLA Section 103 or EPCRA
Section 304.
32. Within 20 days of the onset of such an event, Settling
Defendants shall furnish to Plaintiff[s] a written report, signed by
the Settling Defendants' Project Coordinator, setting forth the events
which occurred and the measures taken, and to be taken, in response
thereto. Within 30 days of the conclusion of such an event, Settling
Defendants shall submit a report setting forth all actions taken in
response thereto.
33. Settling Defendants shall submit ____ copies of all plans,
reports, and data required by the SOW, the Remedial Design Work Plan,
the Remedial Action Work Plan, or any other approved plans to EPA in
accordance with the schedules set forth in such plans. Settling
Defendants shall simultaneously submit ____ copies of all such plans,
reports and data to the State.
34. All reports and other documents submitted by Settling
Defendants to EPA (other than the [monthly] progress reports referred
to above) which purport to document Settling Defendants' compliance
with the terms of this Consent Decree shall be signed by an authorized
representative of the Settling Defendants.
XI. EPA Approval of Plans and Other Submissions
35. After review of any plan, report or other item which is
required to be submitted for approval pursuant to this Consent Decree,
EPA, after reasonable opportunity for review and comment by the State,
shall: (a) Approve, in whole or in part, the submission; (b) approve
the submission upon specified conditions; (c) modify the submission to
cure the deficiencies; (d) disapprove, in whole or in part, the
submission, directing that the Settling Defendants modify the
submission; or (e) any combination of the above. However, EPA shall not
modify a submission without first providing Settling Defendants at
least one notice of deficiency and an opportunity to cure within ____
days, except where to do so would cause serious disruption to the
[[Page 38827]]
Work or where previous submission(s) have been disapproved due to
material defects and the deficiencies in the submission under
consideration indicate a bad faith lack of effort to submit an
acceptable deliverable.
36. In the event of approval, approval upon conditions, or
modification by EPA, pursuant to Paragraph 35 (a), (b), or (c),
Settling Defendants shall proceed to take any action required by the
plan, report, or other item, as approved or modified by EPA subject
only to their right to invoke the Dispute Resolution procedures set
forth in Section XIX (Dispute Resolution) with respect to the
modifications or conditions made by EPA. In the event that EPA modifies
the submission to cure the deficiencies pursuant to Paragraph 35(c) and
the submission has a material defect, EPA retains its right to seek
stipulated penalties, as provided in Section XX (Stipulated Penalties).
37. a. Upon receipt of a notice of disapproval pursuant to
Paragraph 35(d), Settling Defendants shall, within ____ days or such
longer time as specified by EPA in such notice, correct the
deficiencies and resubmit the plan, report, or other item for approval.
Any stipulated penalties applicable to the submission, as provided in
Section XX, shall accrue during the ____-day period or otherwise
specified period but shall not be payable unless the resubmission is
disapproved or modified due to a material defect as provided in
Paragraphs 38 and 39.
b. Notwithstanding the receipt of a notice of disapproval pursuant
to Paragraph 35(d), Settling Defendants shall proceed, at the direction
of EPA, to take any action required by any non-deficient portion of the
submission. Implementation of any non-deficient portion of a submission
shall not relieve Settling Defendants of any liability for stipulated
penalties under Section XX (Stipulated Penalties).
38. In the event that a resubmitted plan, report or other item, or
portion thereof, is disapproved by EPA, EPA may again require the
Settling Defendants to correct the deficiencies, in accordance with the
preceding Paragraphs. EPA also retains the right to modify or develop
the plan, report or other item. Settling Defendants shall implement any
such plan, report, or item as modified or developed by EPA, subject
only to their right to invoke the procedures set forth in Section XIX
(Dispute Resolution).
39. If upon resubmission, a plan, report, or item is disapproved or
modified by EPA due to a material defect, Settling Defendants shall be
deemed to have failed to submit such plan, report, or item timely and
adequately unless the Settling Defendants invoke the dispute resolution
procedures set forth in Section XIX (Dispute Resolution) and EPA's
action is overturned pursuant to that Section. The provisions of
Section XIX (Dispute Resolution) and Section XX (Stipulated Penalties)
shall govern the implementation of the Work and accrual and payment of
any stipulated penalties during Dispute Resolution. If EPA's
disapproval or modification is upheld, stipulated penalties shall
accrue for such violation from the date on which the initial submission
was originally required, as provided in Section XX.
40. All plans, reports, and other items required to be submitted to
EPA under this Consent Decree shall, upon approval or modification by
EPA, be enforceable under this Consent Decree. In the event EPA
approves or modifies a portion of a plan, report, or other item
required to be submitted to EPA under this Consent Decree, the approved
or modified portion shall be enforceable under this Consent Decree.
XII. Project Coordinators
41. Within 20 days of lodging this Consent Decree, Settling
Defendants[, the State] and EPA will notify each other, in writing, of
the name, address and telephone number of their respective designated
Project Coordinators and Alternate Project Coordinators. If a Project
Coordinator or Alternate Project Coordinator initially designated is
changed, the identity of the successor will be given to the other
Parties at least 5 working days before the changes occur, unless
impracticable, but in no event later than the actual day the change is
made. The Settling Defendants' Project Coordinator shall be subject to
disapproval by EPA and shall have the technical expertise sufficient to
adequately oversee all aspects of the Work. The Settling Defendants'
Project Coordinator shall not be an attorney for any of the Settling
Defendants in this matter. He or she may assign other representatives,
including other contractors, to serve as a Site representative for
oversight of performance of daily operations during remedial
activities.
42. Plaintiff[s] may designate other representatives, including,
but not limited to, EPA [and State] employees, and federal [and State]
contractors and consultants, to observe and monitor the progress of any
activity undertaken pursuant to this Consent Decree. EPA's Project
Coordinator and Alternate Project Coordinator shall have the authority
lawfully vested in a Remedial Project Manager (RPM) and an On-Scene
Coordinator (OSC) by the National Contingency Plan, 40 C.F.R. Part 300.
In addition, EPA's Project Coordinator or Alternate Project Coordinator
shall have authority, consistent with the National Contingency Plan, to
halt any Work required by this Consent Decree and to take any necessary
response action when s/he determines that conditions at the Site
constitute an emergency situation or may present an immediate threat to
public health or welfare or the environment due to release or
threatened release of Waste Material.
[43. EPA's Project Coordinator and the Settling Defendants' Project
Coordinator will meet, at a minimum, on a monthly basis.]
XIII. Assurance of Ability to Complete Work
44. Within 30 days of entry of this Consent Decree, Settling
Defendants shall establish and maintain financial security in the
amount of $ [insert estimated cost of Work] in one or more of the
following forms:
(a) A surety bond guaranteeing performance of the Work;
(b) One or more irrevocable letters of credit equalling the total
estimated cost of the Work;
(c) A trust fund;
(d) A guarantee to perform the Work by one or more parent
corporations or subsidiaries, or by one or more unrelated corporations
that have a substantial business relationship with at least one of the
Settling Defendants;
(e) A demonstration that one or more of the Settling Defendants
satisfy the requirements of 40 C.F.R. Part 264.143(f); or
(f) [Insert any other method(s) appropriate to the particular
case.].
45. If the Settling Defendants seek to demonstrate the ability to
complete the Work through a guarantee by a third party pursuant to
Paragraph 44 (d) of this Consent Decree, Settling Defendants shall
demonstrate that the guarantor satisfies the requirements of 40 C.F.R.
Part 264.143(f). If Settling Defendants seek to demonstrate their
ability to complete the Work by means of the financial test or the
corporate guarantee pursuant to Paragraph 44 (d) or (e), they shall
resubmit sworn statements conveying the information required by 40
C.F.R. Part 264.143(f) annually, on the anniversary of the effective
date of this Consent Decree. In the event that EPA[, after a reasonable
opportunity for review and comment by the State,] determines at any
time that the financial assurances provided pursuant to this Section
are inadequate, Settling Defendants shall, within 30 days of
[[Page 38828]]
receipt of notice of EPA's determination, obtain and present to EPA for
approval one of the other forms of financial assurance listed in
Paragraph 44 of this Consent Decree. Settling Defendants' inability to
demonstrate financial ability to complete the Work shall not excuse
performance of any activities required under this Consent Decree.
46. If Settling Defendants can show that the estimated cost to
complete the remaining Work has diminished below the amount set forth
in Paragraph 44 above after entry of this Consent Decree, Settling
Defendants may, on any anniversary date of entry of this Consent
Decree, or at any other time agreed to by the Parties, reduce the
amount of the financial security provided under this Section to the
estimated cost of the remaining work to be performed. Settling
Defendants shall submit a proposal for such reduction to EPA, in
accordance with the requirements of this Section, and may reduce the
amount of the security upon approval by EPA. In the event of a dispute,
Settling Defendants may reduce the amount of the security in accordance
with the final administrative or judicial decision resolving the
dispute.
47. Settling Defendants may change the form of financial assurance
provided under this Section at any time, upon notice to and approval by
EPA, provided that the new form of assurance meets the requirements of
this Section. In the event of a dispute, Settling Defendants may change
the form of the financial assurance only in accordance with the final
administrative or judicial decision resolving the dispute.
XIV. Certification of Completion
[Note: Paragraph 48, below, (Completion of the Remedial Action),
is only required for Site-wide or Final Operable Unit Consent
Decrees, in which the United States has decided to grant a full
covenant not to sue (i.e., where Certification of Completion of the
Remedial Action is necessary to trigger a full covenant not to sue
under Sections 106 and 107 of CERCLA).]
48. Completion of the Remedial Action
a. Within 90 days after Settling Defendants conclude that the
Remedial Action has been fully performed and the Performance Standards
have been attained, Settling Defendants shall schedule and conduct a
pre-certification inspection to be attended by Settling Defendants[,]
[and] EPA [,and the State]. If, after the pre-certification inspection,
the Settling Defendants still believe that the Remedial Action has been
fully performed and the Performance Standards have been attained, they
shall submit a written report requesting certification to EPA for
approval, with a copy to the State, pursuant to Section XI (EPA
Approval of Plans and Other Submissions) within 30 days of the
inspection. In the report, a registered professional engineer and the
Settling Defendants' Project Coordinator shall state that the Remedial
Action has been completed in full satisfaction of the requirements of
this Consent Decree. The written report shall include as-built drawings
signed and stamped by a professional engineer. The report shall contain
the following statement, signed by a responsible corporate official of
a Settling Defendant or the Settling Defendants' Project Coordinator:
``To the best of my knowledge, after thorough investigation, I
certify that the information contained in or accompanying this
submission is true, accurate and complete. I am aware that there are
significant penalties for submitting false information, including
the possibility of fine and imprisonment for knowing violations.''
If, after completion of the pre-certification inspection and receipt
and review of the written report, EPA, after reasonable opportunity to
review and comment by the State, determines that the Remedial Action or
any portion thereof has not been completed in accordance with this
Consent Decree or that the Performance Standards have not been
achieved, EPA will notify Settling Defendants in writing of the
activities that must be undertaken by Settling Defendants pursuant to
this Consent Decree to complete the Remedial Action and achieve the
Performance Standards. Provided, however, that EPA may only require
Settling Defendants to perform such activities pursuant to this
Paragraph to the extent that such activities are consistent with the
``scope of the remedy selected in the ROD,'' as that term is defined in
Paragraph 14.b. EPA will set forth in the notice a schedule for
performance of such activities consistent with the Consent Decree and
the SOW or require the Settling Defendants to submit a schedule to EPA
for approval pursuant to Section XI (EPA Approval of Plans and Other
Submissions). Settling Defendants shall perform all activities
described in the notice in accordance with the specifications and
schedules established pursuant to this Paragraph, subject to their
right to invoke the dispute resolution procedures set forth in Section
XIX (Dispute Resolution).
b. If EPA concludes, based on the initial or any subsequent report
requesting Certification of Completion and after a reasonable
opportunity for review and comment by the State, that the Remedial
Action has been performed in accordance with this Consent Decree and
that the Performance Standards have been achieved, EPA will so certify
in writing to Settling Defendants. This certification shall constitute
the Certification of Completion of the Remedial Action for purposes of
this Consent Decree, including, but not limited to, Section XXI
(Covenants Not to Sue by Plaintiff[s]). Certification of Completion of
the Remedial Action shall not affect Settling Defendants' obligations
under this Consent Decree.
49. Completion of the Work
a. Within 90 days after Settling Defendants conclude that all
phases of the Work (including O & M), have been fully performed,
Settling Defendants shall schedule and conduct a pre-certification
inspection to be attended by Settling Defendants[,] [and] EPA [and the
State]. If, after the pre-certification inspection, the Settling
Defendants still believe that the Work has been fully performed,
Settling Defendants shall submit a written report by a registered
professional engineer stating that the Work has been completed in full
satisfaction of the requirements of this Consent Decree. The report
shall contain the following statement, signed by a responsible
corporate official of a Settling Defendant or the Settling Defendants'
Project Coordinator:
To the best of my knowledge, after thorough investigation, I
certify that the information contained in or accompanying this
submission is true, accurate and complete. I am aware that there are
significant penalties for submitting false information, including
the possibility of fine and imprisonment for knowing violations.
If, after review of the written report, EPA, after reasonable
opportunity to review and comment by the State, determines that any
portion of the Work has not been completed in accordance with this
Consent Decree, EPA will notify Settling Defendants in writing of the
activities that must be undertaken by Settling Defendants pursuant to
this Consent Decree to complete the Work. Provided, however, that EPA
may only require Settling Defendants to perform such activities
pursuant to this Paragraph to the extent that such activities are
consistent with the ``scope of the remedy selected in the ROD,'' as
that term is defined in Paragraph 14.b. EPA will set forth in the
notice a schedule for performance of such activities consistent with
the Consent Decree and the SOW or require the Settling Defendants to
submit a schedule to EPA for approval pursuant to Section XI (EPA
Approval of Plans and Other Submissions). Settling Defendants shall
perform all activities described in the notice in accordance
[[Page 38829]]
with the specifications and schedules established therein, subject to
their right to invoke the dispute resolution procedures set forth in
Section XIX (Dispute Resolution).
b. If EPA concludes, based on the initial or any subsequent request
for Certification of Completion by Settling Defendants and after a
reasonable opportunity for review and comment by the State, that the
Work has been performed in accordance with this Consent Decree, EPA
will so notify the Settling Defendants in writing.
XV. Emergency Response
50. In the event of any action or occurrence during the performance
of the Work which causes or threatens a release of Waste Material from
the Site that constitutes an emergency situation or may present an
immediate threat to public health or welfare or the environment,
Settling Defendants shall, subject to Paragraph 51, immediately take
all appropriate action to prevent, abate, or minimize such release or
threat of release, and shall immediately notify the EPA's Project
Coordinator, or, if the Project Coordinator is unavailable, EPA's
Alternate Project Coordinator. If neither of these persons is
available, the Settling Defendants shall notify the EPA [Emergency
Response Unit], Region ____. Settling Defendants shall take such
actions in consultation with EPA's Project Coordinator or other
available authorized EPA officer and in accordance with all applicable
provisions of the Health and Safety Plans, the Contingency Plans, and
any other applicable plans or documents developed pursuant to the SOW.
In the event that Settling Defendants fail to take appropriate response
action as required by this Section, and EPA [or, as appropriate, the
State] take[s] such action instead, Settling Defendants shall reimburse
EPA [and the State] all costs of the response action not inconsistent
with the NCP pursuant to Section XVI (Reimbursement of Response Costs).
51. Nothing in the preceding Paragraph or in this Consent Decree
shall be deemed to limit any authority of the United States[, or the
State,] a) to take all appropriate action to protect human health and
the environment or to prevent, abate, respond to, or minimize an actual
or threatened release of Waste Material on, at, or from the Site, or b)
to direct or order such action, or seek an order from the Court, to
protect human health and the environment or to prevent, abate, respond
to, or minimize an actual or threatened release of Waste Material on,
at, or from the Site, subject to Section XXI (Covenants Not to Sue by
Plaintiff[s]).
XVI. Reimbursement of Response Costs
52. Within 30 days of the effective date of this Consent Decree,
Settling Defendants shall:
[a. ] Pay to the EPA Hazardous Substance Superfund $__________, in
reimbursement of Past Response Costs, by FedWire Electronic Funds
Transfer (``EFT'' or wire transfer) to the U.S. Department of Justice
account in accordance with current electronic funds transfer
procedures, referencing U.S.A.O. file number __________, the EPA Region
and Site/Spill ID #____ [Insert 4-digit no.; first 2 numbers represent
the Region (01-10), second 2 numbers are Region's Site/Spill Identifier
number], and DOJ case number __________. Payment shall be made in
accordance with instructions provided to the Settling Defendants by the
Financial Litigation Unit of the United States Attorney's Office for
the District of __________ following lodging of the Consent Decree. Any
payments received by the Department of Justice after 4:00 p.m. (Eastern
Time) will be credited on the next business day. Settling Defendants
shall send notice that such payment has been made to the United States
as specified in Section XXVI (Notices and Submissions) and [names and
mailing addresses of the Regional Financial Management Officer and any
other receiving officials at EPA].
[Note: If the amount owed is less than $10,000, the Settling
Defendants should be directed to pay by check instead of EFT. In
this event, use the following language for Paragraph 52.a:
[a. ] Pay $__________, in reimbursement of Past Response Costs, by
a certified or cashier's check or checks made payable to ``U.S.
Department of Justice.'' The Settling Defendants shall forward the
check(s) to [Insert the address of the Financial Litigation Unit of the
U.S. Attorney's Office for the District of __________], referencing
U.S.A.O. file number __________, the EPA Region and Site/Spill ID
#__________ [Insert 4-digit no.; first 2 numbers represent the Region
(01-10), second 2 numbers are the Region's Site/Spill ID no.], the DOJ
case number __________, and the name and address of the party making
payment, and shall send copies of the check(s) to the United States as
specified in Section XXVI (Notices and Submissions) and [Insert the
names and mailing addresses of the Regional Financial Management
Officer and any other receiving officials at EPA].]
[b. Pay to the State $__________ in the form of a certified check
or checks made payable to __________, in reimbursement of State Past
Response Costs. The Settling Defendants shall send the certified
check(s) to __________.]
53. [a. ] Settling Defendants shall reimburse the EPA Hazardous
Substance Superfund for all Future Response Costs not inconsistent with
the National Contingency Plan. The United States will send Settling
Defendants a bill requiring payment that includes a [Insert name of
standard Regionally-prepared cost summary, which includes direct and
indirect costs incurred by EPA and its contractors. Also insert name of
DOJ-prepared cost summary which would reflect costs incurred by DOJ and
its contractors, if any.] on a [periodic] basis. Settling Defendants
shall make all payments within 30 days of Settling Defendants' receipt
of each bill requiring payment, except as otherwise provided in
Paragraph 54. The Settling Defendants shall make all payments required
by this Paragraph in the form of a certified or cashier's check or
checks made payable to ``EPA Hazardous Substance Superfund'' and
referencing the EPA Region and Site/Spill ID #__________ [Insert 4-
digit no.; first 2 numbers represent the Region (01-10), second 2
numbers are the Region's Site/Spill Identifier number], the DOJ case
number __________, and the name and address of the party making
payment. The Settling Defendants shall send the check(s) to [Insert
appropriate Regional Superfund Lockbox number and address] and shall
send copies of the check(s) to the United States as specified in
Section XXVI (Notices and Submissions) and [Insert the names and
mailing addresses of any other receiving officials at EPA].
[b. Settling Defendants shall reimburse the State for all State
Future Response Costs not inconsistent with the National Contingency
Plan. The State will send Settling Defendants a bill requiring payment
that includes a [Insert name of standard State-prepared cost summary,
which includes direct and indirect costs incurred by the State and its
contractors] on a [periodic] basis. Settling Defendants shall make all
payments within 30 days of Settling Defendants' receipt of each bill
requiring payment, except as otherwise provided in Paragraph 54. The
Settling Defendants shall make all payments to the State required by
this Paragraph in the manner described in Paragraph 52.b.]
54. Settling Defendants may contest payment of any Future Response
Costs under Paragraph 53 if they determine that the United States [or
the State] has made an accounting error or if they
[[Page 38830]]
allege that a cost item that is included represents costs that are
inconsistent with the NCP. Such objection shall be made in writing
within 30 days of receipt of the bill and must be sent to the United
States [(if the United States' accounting is being disputed) or the
State (if the State's accounting is being disputed)] pursuant to
Section XXVI (Notices and Submissions). Any such objection shall
specifically identify the contested Future Response Costs and the basis
for objection. In the event of an objection, the Settling Defendants
shall within the 30 day period pay all uncontested Future Response
Costs to the United States [or the State] in the manner described in
Paragraph 53. Simultaneously, the Settling Defendants shall establish
an interest-bearing escrow account in a federally-insured bank duly
chartered in the State of __________ and remit to that escrow account
funds equivalent to the amount of the contested Future Response Costs.
The Settling Defendants shall send to the United States, as provided in
Section XXVI (Notices and Submissions), [and the State] a copy of the
transmittal letter and check paying the uncontested Future Response
Costs, and a copy of the correspondence that establishes and funds the
escrow account, including, but not limited to, information containing
the identity of the bank and bank account under which the escrow
account is established as well as a bank statement showing the initial
balance of the escrow account. Simultaneously with establishment of the
escrow account, the Settling Defendants shall initiate the Dispute
Resolution procedures in Section XIX (Dispute Resolution). If the
United States [or the State] prevails in the dispute, within 5 days of
the resolution of the dispute, the Settling Defendants shall pay the
sums due (with accrued interest) to the United States [or the State, if
State costs are disputed,] in the manner described in Paragraph 53. If
the Settling Defendants prevail concerning any aspect of the contested
costs, the Settling Defendants shall pay that portion of the costs
(plus associated accrued interest) for which they did not prevail to
the United States [or the State, if State costs are disputed] in the
manner described in Paragraph 53; Settling Defendants shall be
disbursed any balance of the escrow account. The dispute resolution
procedures set forth in this Paragraph in conjunction with the
procedures set forth in Section XIX (Dispute Resolution) shall be the
exclusive mechanisms for resolving disputes regarding the Settling
Defendants' obligation to reimburse the United States [and the State]
for its [their] Future Response Costs.
55. In the event that the payments required by Paragraph 52 are not
made within 30 days of the effective date of this Consent Decree or the
payments required by Paragraph 53 are not made within 30 days of the
Settling Defendants' receipt of the bill, Settling Defendants shall pay
Interest on the unpaid balance. The Interest to be paid on Past
Response Costs [and State Past Response Costs] under this Paragraph
shall begin to accrue 30 days after the effective date of this Consent
Decree. The Interest on Future Response Costs shall begin to accrue on
the date of the bill. The Interest shall accrue through the date of the
Settling Defendant's payment. Payments of Interest made under this
Paragraph shall be in addition to such other remedies or sanctions
available to Plaintiffs by virtue of Settling Defendants' failure to
make timely payments under this Section. The Settling Defendants shall
make all payments required by this Paragraph in the manner described in
Paragraph 53.
XVII. Indemnification and Insurance
56. a. The United States [and the State] do[es] not assume any
liability by entering into this agreement or by virtue of any
designation of Settling Defendants as EPA's authorized representatives
under Section 104(e) of CERCLA. Settling Defendants shall indemnify,
save and hold harmless the United States[, the State,] and its [their]
officials, agents, employees, contractors, subcontractors, or
representatives for or from any and all claims or causes of action
arising from, or on account of, negligent or other wrongful acts or
omissions of Settling Defendants, their officers, directors, employees,
agents, contractors, subcontractors, and any persons acting on their
behalf or under their control, in carrying out activities pursuant to
this Consent Decree, including, but not limited to, any claims arising
from any designation of Settling Defendants as EPA's authorized
representatives under Section 104(e) of CERCLA. Further, the Settling
Defendants agree to pay the United States [and the State] all costs it
[they] incur[s] including, but not limited to, attorneys fees and other
expenses of litigation and settlement arising from, or on account of,
claims made against the United States [or the State] based on negligent
or other wrongful acts or omissions of Settling Defendants, their
officers, directors, employees, agents, contractors, subcontractors,
and any persons acting on their behalf or under their control, in
carrying out activities pursuant to this Consent Decree. [Neither] the
United States [nor the State] shall [not] be held out as a party to any
contract entered into by or on behalf of Settling Defendants in
carrying out activities pursuant to this Consent Decree. Neither the
Settling Defendants nor any such contractor shall be considered an
agent of the United States [or the State].
b. The United States [and the State] shall give Settling Defendants
notice of any claim for which the United States [or the State] plans to
seek indemnification pursuant to Paragraph 56.a., and shall consult
with Settling Defendants prior to settling such claim.
57. Settling Defendants waive all claims against the United States
[and the State] for damages or reimbursement or for set-off of any
payments made or to be made to the United States [or the State],
arising from or on account of any contract, agreement, or arrangement
between any one or more of Settling Defendants and any person for
performance of Work on or relating to the Site, including, but not
limited to, claims on account of construction delays. In addition,
Settling Defendants shall indemnify and hold harmless the United States
[and the State] with respect to any and all claims for damages or
reimbursement arising from or on account of any contract, agreement, or
arrangement between any one or more of Settling Defendants and any
person for performance of Work on or relating to the Site, including,
but not limited to, claims on account of construction delays.
58. No later than 15 days before commencing any on-site Work,
Settling Defendants shall secure, and shall maintain [until the first
anniversary of EPA's Certification of Completion of the Remedial Action
pursuant to Paragraph 48.b. of Section XIV (Certification of
Completion)] comprehensive general liability insurance with limits of
____ million dollars, combined single limit, and automobile liability
insurance with limits of ____ million dollars, combined single limit,
naming the United States [and the State] as [an] additional insured[s].
In addition, for the duration of this Consent Decree, Settling
Defendants shall satisfy, or shall ensure that their contractors or
subcontractors satisfy, all applicable laws and regulations regarding
the provision of worker's compensation insurance for all persons
performing the Work on behalf of Settling Defendants in furtherance of
this Consent Decree. Prior to commencement of the Work under this
Consent Decree, Settling Defendants shall provide to EPA [and the
State] certificates of such insurance and a copy
[[Page 38831]]
of each insurance policy. Settling Defendants shall resubmit such
certificates and copies of policies each year on the anniversary of the
effective date of this Consent Decree. If Settling Defendants
demonstrate by evidence satisfactory to EPA [and the State] that any
contractor or subcontractor maintains insurance equivalent to that
described above, or insurance covering the same risks but in a lesser
amount, then, with respect to that contractor or subcontractor,
Settling Defendants need provide only that portion of the insurance
described above which is not maintained by the contractor or
subcontractor.
XVIII. Force Majeure
59. ``Force majeure,'' for purposes of this Consent Decree, is
defined as any event arising from causes beyond the control of the
Settling Defendants, of any entity controlled by Settling Defendants,
or of Settling Defendants' contractors, that delays or prevents the
performance of any obligation under this Consent Decree despite
Settling Defendants' best efforts to fulfill the obligation. The
requirement that the Settling Defendants exercise ``best efforts to
fulfill the obligation'' includes using best efforts to anticipate any
potential force majeure event and best efforts to address the effects
of any potential force majeure event (1) as it is occurring and (2)
following the potential force majeure event, such that the delay is
minimized to the greatest extent possible. ``Force Majeure'' does not
include financial inability to complete the Work or a failure to attain
the Performance Standards.
60. If any event occurs or has occurred that may delay the
performance of any obligation under this Consent Decree, whether or not
caused by a force majeure event, the Settling Defendants shall notify
orally EPA's Project Coordinator or, in his or her absence, EPA's
Alternate Project Coordinator or, in the event both of EPA's designated
representatives are unavailable, [the Director of the Hazardous Waste
Management Division, EPA Region ____], within [insert period of time]
of when Settling Defendants first knew that the event might cause a
delay. Within [____] days thereafter, Settling Defendants shall provide
in writing to EPA [and the State] an explanation and description of the
reasons for the delay; the anticipated duration of the delay; all
actions taken or to be taken to prevent or minimize the delay; a
schedule for implementation of any measures to be taken to prevent or
mitigate the delay or the effect of the delay; the Settling Defendants'
rationale for attributing such delay to a force majeure event if they
intend to assert such a claim; and a statement as to whether, in the
opinion of the Settling Defendants, such event may cause or contribute
to an endangerment to public health, welfare or the environment. The
Settling Defendants shall include with any notice all available
documentation supporting their claim that the delay was attributable to
a force majeure. Failure to comply with the above requirements shall
preclude Settling Defendants from asserting any claim of force majeure
for that event for the period of time of such failure to comply, and
for any additional delay caused by such failure. Settling Defendants
shall be deemed to know of any circumstance of which Settling
Defendants, any entity controlled by Settling Defendants, or Settling
Defendants' contractors knew or should have known.
61. If EPA[, after a reasonable opportunity for review and comment
by the State,] agrees that the delay or anticipated delay is
attributable to a force majeure event, the time for performance of the
obligations under this Consent Decree that are affected by the force
majeure event will be extended by EPA[, after a reasonable opportunity
for review and comment by the State,] for such time as is necessary to
complete those obligations. An extension of the time for performance of
the obligations affected by the force majeure event shall not, of
itself, extend the time for performance of any other obligation. If
EPA[, after a reasonable opportunity for review and comment by the
State,] does not agree that the delay or anticipated delay has been or
will be caused by a force majeure event, EPA will notify the Settling
Defendants in writing of its decision. If EPA[, after a reasonable
opportunity for review and comment by the State,] agrees that the delay
is attributable to a force majeure event, EPA will notify the Settling
Defendants in writing of the length of the extension, if any, for
performance of the obligations affected by the force majeure event.
62. If the Settling Defendants elect to invoke the dispute
resolution procedures set forth in Section XIX (Dispute Resolution),
they shall do so no later than 15 days after receipt of EPA's notice.
In any such proceeding, Settling Defendants shall have the burden of
demonstrating by a preponderance of the evidence that the delay or
anticipated delay has been or will be caused by a force majeure event,
that the duration of the delay or the extension sought was or will be
warranted under the circumstances, that best efforts were exercised to
avoid and mitigate the effects of the delay, and that Settling
Defendants complied with the requirements of Paragraphs 59 and 60,
above. If Settling Defendants carry this burden, the delay at issue
shall be deemed not to be a violation by Settling Defendants of the
affected obligation of this Consent Decree identified to EPA and the
Court.
XIX. Dispute Resolution
[Note: The dispute resolution procedures set forth in this
Section may be supplemented to provide for use of mediation in
appropriate cases. Mediation provisions should contain time limits
to ensure that mediation does not cause delays in dispute resolution
that could delay the remedial action.]
63. Unless otherwise expressly provided for in this Consent Decree,
the dispute resolution procedures of this Section shall be the
exclusive mechanism to resolve disputes arising under or with respect
to this Consent Decree. However, the procedures set forth in this
Section shall not apply to actions by the United States to enforce
obligations of the Settling Defendants that have not been disputed in
accordance with this Section.
64. Any dispute which arises under or with respect to this Consent
Decree shall in the first instance be the subject of informal
negotiations between the parties to the dispute. The period for
informal negotiations shall not exceed 20 days from the time the
dispute arises, unless it is modified by written agreement of the
parties to the dispute. The dispute shall be considered to have arisen
when one party sends the other parties a written Notice of Dispute.
65. a. In the event that the parties cannot resolve a dispute by
informal negotiations under the preceding Paragraph, then the position
advanced by EPA shall be considered binding unless, within ____ days
after the conclusion of the informal negotiation period, Settling
Defendants invoke the formal dispute resolution procedures of this
Section by serving on the United States [and the State] a written
Statement of Position on the matter in dispute, including, but not
limited to, any factual data, analysis or opinion supporting that
position and any supporting documentation relied upon by the Settling
Defendants.
The Statement of Position shall specify the Settling Defendants'
position as to whether formal dispute resolution should proceed under
Paragraph 66 or Paragraph 67.
b. Within ____ days after receipt of Settling Defendants' Statement
of Position, EPA will serve on Settling
[[Page 38832]]
Defendants its Statement of Position, including, but not limited to,
any factual data, analysis, or opinion supporting that position and all
supporting documentation relied upon by EPA. EPA's Statement of
Position shall include a statement as to whether formal dispute
resolution should proceed under Paragraph 66 or 67. Within ---- days
after receipt of EPA's Statement of Position, Settling Defendants may
submit a Reply.
c. If there is disagreement between EPA and the Settling Defendants
as to whether dispute resolution should proceed under Paragraph 66 or
67, the parties to the dispute shall follow the procedures set forth in
the paragraph determined by EPA to be applicable. However, if the
Settling Defendants ultimately appeal to the Court to resolve the
dispute, the Court shall determine which paragraph is applicable in
accordance with the standards of applicability set forth in Paragraphs
66 and 67.
66. Formal dispute resolution for disputes pertaining to the
selection or adequacy of any response action and all other disputes
that are accorded review on the administrative record under applicable
principles of administrative law shall be conducted pursuant to the
procedures set forth in this Paragraph. For purposes of this Paragraph,
the adequacy of any response action includes, without limitation: (1)
The adequacy or appropriateness of plans, procedures to implement
plans, or any other items requiring approval by EPA under this Consent
Decree; and (2) the adequacy of the performance of response actions
taken pursuant to this Consent Decree. Nothing in this Consent Decree
shall be construed to allow any dispute by Settling Defendants
regarding the validity of the ROD's provisions.
a. An administrative record of the dispute shall be maintained by
EPA and shall contain all statements of position, including supporting
documentation, submitted pursuant to this Section. Where appropriate,
EPA may allow submission of supplemental statements of position by the
parties to the dispute.
b. The Director of the Waste Management Division, EPA Region ____,
will issue a final administrative decision resolving the dispute based
on the administrative record described in Paragraph 66.a. This decision
shall be binding upon the Settling Defendants, subject only to the
right to seek judicial review pursuant to Paragraph 66.c. and d.
c. Any administrative decision made by EPA pursuant to Paragraph
66.b. shall be reviewable by this Court, provided that a motion for
judicial review of the decision is filed by the Settling Defendants
with the Court and served on all Parties within 10 days of receipt of
EPA's decision. The motion shall include a description of the matter in
dispute, the efforts made by the parties to resolve it, the relief
requested, and the schedule, if any, within which the dispute must be
resolved to ensure orderly implementation of this Consent Decree. The
United States may file a response to Settling Defendants' motion.
d. In proceedings on any dispute governed by this Paragraph,
Settling Defendants shall have the burden of demonstrating that the
decision of the Waste Management Division Director is arbitrary and
capricious or otherwise not in accordance with law. Judicial review of
EPA's decision shall be on the administrative record compiled pursuant
to Paragraph 66.a.
67. Formal dispute resolution for disputes that neither pertain to
the selection or adequacy of any response action nor are otherwise
accorded review on the administrative record under applicable
principles of administrative law, shall be governed by this Paragraph.
a. Following receipt of Settling Defendants' Statement of Position
submitted pursuant to Paragraph 65, the Director of the Waste
Management Division, EPA Region ____, will issue a final decision
resolving the dispute. The Waste Management Division Director's
decision shall be binding on the Settling Defendants unless, within 10
days of receipt of the decision, the Settling Defendants file with the
Court and serve on the parties a motion for judicial review of the
decision setting forth the matter in dispute, the efforts made by the
parties to resolve it, the relief requested, and the schedule, if any,
within which the dispute must be resolved to ensure orderly
implementation of the Consent Decree. The United States may file a
response to Settling Defendants' motion.
b. Notwithstanding Paragraph M of Section I (Background) of this
Consent Decree, judicial review of any dispute governed by this
Paragraph shall be governed by applicable principles of law.
68. The invocation of formal dispute resolution procedures under
this Section shall not extend, postpone or affect in any way any
obligation of the Settling Defendants under this Consent Decree, not
directly in dispute, unless EPA or the Court agrees otherwise.
Stipulated penalties with respect to the disputed matter shall continue
to accrue but payment shall be stayed pending resolution of the dispute
as provided in Paragraph 77. Notwithstanding the stay of payment,
stipulated penalties shall accrue from the first day of noncompliance
with any applicable provision of this Consent Decree. In the event that
the Settling Defendants do not prevail on the disputed issue,
stipulated penalties shall be assessed and paid as provided in Section
XX (Stipulated Penalties).
XX. Stipulated Penalties
69. Settling Defendants shall be liable for stipulated penalties in
the amounts set forth in Paragraphs 70 and 71 to the United States [and
the State--specify percentage split] for failure to comply with the
requirements of this Consent Decree specified below, unless excused
under Section XVIII (Force Majeure). ``Compliance'' by Settling
Defendants shall include completion of the activities under this
Consent Decree or any work plan or other plan approved under this
Consent Decree identified below in accordance with all applicable
requirements of law, this Consent Decree, the SOW, and any plans or
other documents approved by EPA pursuant to this Consent Decree and
within the specified time schedules established by and approved under
this Consent Decree.
[70. a. The following stipulated penalties shall accrue per
violation per day for any noncompliance identified in Subparagraph b:
Penalty Per Violation Per Day Period of Noncompliance
b. [List violations or compliance milestones] The following
stipulated penalties shall accrue per violation per day for failure to
submit timely or adequate reports [or other written documents] pursuant
to Paragraphs __________:
Penalty Per Violation Per Day Period of Noncompliance
72. In the event that EPA assumes performance of a portion or all
of the Work pursuant to Paragraph 85 of Section XXI (Covenants Not to
Sue by Plaintiff[s]), Settling Defendants shall be liable for a
stipulated penalty in the amount of __________.]
73. All penalties shall begin to accrue on the day after the
complete performance is due or the day a violation occurs, and shall
continue to accrue through the final day of the correction of the
noncompliance or completion of the activity. However, stipulated
penalties shall not accrue: (1)
[[Page 38833]]
With respect to a deficient submission under Section XI (EPA Approval
of Plans and Other Submissions), during the period, if any, beginning
on the 31st day after EPA's receipt of such submission until the date
that EPA notifies Settling Defendants of any deficiency; (2) with
respect to a decision by the Director of the Waste Management Division,
EPA Region ____, under Paragraph 66.b. or 67.a. of Section XIX (Dispute
Resolution), during the period, if any, beginning on the 21st day after
the date that Settling Defendants' reply to EPA's Statement of Position
is received until the date that the Director issues a final decision
regarding such dispute; or (3) with respect to judicial review by this
Court of any dispute under Section XIX (Dispute Resolution), during the
period, if any, beginning on the 31st day after the Court's receipt of
the final submission regarding the dispute until the date that the
Court issues a final decision regarding such dispute. Nothing herein
shall prevent the simultaneous accrual of separate penalties for
separate violations of this Consent Decree.
74. Following EPA's determination that Settling Defendants have
failed to comply with a requirement of this Consent Decree, EPA may
give Settling Defendants written notification of the same and describe
the noncompliance. EPA [and the State] may send the Settling Defendants
a written demand for the payment of the penalties. However, penalties
shall accrue as provided in the preceding Paragraph regardless of
whether EPA has notified the Settling Defendants of a violation.
75. All penalties accruing under this Section shall be due and
payable to the United States [and the State] within 30 days of the
Settling Defendants' receipt from EPA of a demand for payment of the
penalties, unless Settling Defendants invoke the Dispute Resolution
procedures under Section XIX (Dispute Resolution). All payments to the
United States under this Section shall be paid by certified or
cashier's check(s) made payable to ``EPA Hazardous Substances
Superfund,'' shall be mailed to [Insert the Regional Lockbox number and
address], shall indicate that the payment is for stipulated penalties,
and shall reference the EPA Region and Site/Spill ID #________ [Insert
4-digit no; first 2 numbers represent the Region (01-10), second 2
numbers are the Region's Site/Spill Identifier number], the DOJ Case
Number __________, and the name and address of the party making
payment. Copies of check(s) paid pursuant to this Section, and any
accompanying transmittal letter(s), shall be sent to the United States
as provided in Section XXVI (Notices and Submissions), and to [Insert
the names and mailing addresses of any other receiving officials at
EPA.]. [Where a State is entitled to a portion of the stipulated
penalties, insert procedures for payment to State.]
76. The payment of penalties shall not alter in any way Settling
Defendants' obligation to complete the performance of the Work required
under this Consent Decree.
77. Penalties shall continue to accrue as provided in Paragraph 73
during any dispute resolution period, but need not be paid until the
following:
a. If the dispute is resolved by agreement or by a decision of EPA
that is not appealed to this Court, accrued penalties determined to be
owing shall be paid to EPA [and the State] within 15 days of the
agreement or the receipt of EPA's decision or order;
b. If the dispute is appealed to this Court and the United States
prevails in whole or in part, Settling Defendants shall pay all accrued
penalties determined by the Court to be owed to EPA [and the State]
within 60 days of receipt of the Court's decision or order, except as
provided in Subparagraph c below;
c. If the District Court's decision is appealed by any Party,
Settling Defendants shall pay all accrued penalties determined by the
District Court to be owing to the United States [or the State] into an
interest-bearing escrow account within 60 days of receipt of the
Court's decision or order. Penalties shall be paid into this account as
they continue to accrue, at least every 60 days. Within 15 days of
receipt of the final appellate court decision, the escrow agent shall
pay the balance of the account to EPA [and the State] or to Settling
Defendants to the extent that they prevail.
78. a. If Settling Defendants fail to pay stipulated penalties when
due, the United States [or the State] may institute proceedings to
collect the penalties, as well as interest. Settling Defendants shall
pay Interest on the unpaid balance, which shall begin to accrue on the
date of demand made pursuant to Paragraph 75.
b. Nothing in this Consent Decree shall be construed as
prohibiting, altering, or in any way limiting the ability of the United
States [or the State] to seek any other remedies or sanctions available
by virtue of Settling Defendants' violation of this Decree or of the
statutes and regulations upon which it is based, including, but not
limited to, penalties pursuant to Section 122(l) of CERCLA. Provided,
however, that the United States shall not seek civil penalties pursuant
to Section 122(l) of CERCLA for any violation for which a stipulated
penalty is provided herein, except in the case of a willful violation
of the Consent Decree.1
\1\ A provision requiring EPA to elect between seeking
stipulated and statutory penalties for a particular consent decree
violation may be substituted here in appropriate cases.
---------------------------------------------------------------------------
79. Notwithstanding any other provision of this Section, the United
States may, in its unreviewable discretion, waive any portion of
stipulated penalties that have accrued pursuant to this Consent Decree.
XXI. Covenants Not to Sue By Plaintiff[s]
[Note: The first version of Paragraph 80, below, is only used for
situations in which the United States has decided not to grant a
full covenant not to sue, such as non-final Operable Unit consent
decrees. In such cases, Paragraphs 81-83 generally should not be
used in the consent decree.]
80. In consideration of the actions that will be performed and the
payments that will be made by the Settling Defendants under the terms
of the Consent Decree, and except as specifically provided in Paragraph
84 of this Section, the United States covenants not to sue or to take
administrative action against Settling Defendants pursuant to Sections
106 and 107(a) of CERCLA [and Section 7003 of RCRA 2] for
performance of the Work [and for recovery of Past Response Costs and
Future Response Costs]. These covenants not to sue shall take effect
upon the receipt by EPA of the payments required by Paragraph 52 of
Section XVI (Reimbursement of Response Costs). These covenants not to
sue are conditioned upon the satisfactory performance by Settling
Defendants of their obligations under this Consent Decree. These
covenants not to sue extend only to the Settling Defendants and do not
extend to any other person.
\2\ Note that when a 7003 covenant is included, Section 7003(d)
of RCRA requires that an opportunity for a public meeting in the
affected area be provided.
[Note: Paragraphs 80-83, below, should only be used in Consent
Decrees in which the United States has decided to grant a full
---------------------------------------------------------------------------
covenant not to sue.]
80. In consideration of the actions that will be performed and the
payments that will be made by the Settling Defendants under the terms
of the Consent Decree, and except as specifically provided in
Paragraphs 81, 82, and 84 of this Section, the United States covenants
not to sue or to take administrative action against Settling Defendants
pursuant to Sections 106 and 107(a) of CERCLA [and Section
[[Page 38834]]
7003 of RCRA 3] relating to the Site. Except with respect to
future liability, these covenants not to sue shall take effect upon the
receipt by EPA of the payments required by Paragraph 52 of Section XVI
(Reimbursement of Response Costs). With respect to future liability,
these covenants not to sue shall take effect upon Certification of
Completion of Remedial Action by EPA pursuant to Paragraph 48.b of
Section XIV (Certification of Completion). These covenants not to sue
are conditioned upon the satisfactory performance by Settling
Defendants of their obligations under this Consent Decree. These
covenants not to sue extend only to the Settling Defendants and do not
extend to any other person.
\3\ See footnote #1, supra.
---------------------------------------------------------------------------
81. United States' Pre-certification reservations. Notwithstanding
any other provision of this Consent Decree, the United States reserves,
and this Consent Decree is without prejudice to, the right to institute
proceedings in this action or in a new action, or to issue an
administrative order seeking to compel Settling Defendants (1) to
perform further response actions relating to the Site or (2) to
reimburse the United States for additional costs of response if, prior
to Certification of Completion of the Remedial Action:
(i) conditions at the Site, previously unknown to EPA, are
discovered, or
(ii) information, previously unknown to EPA, is received, in whole
or in part,
and these previously unknown conditions or information together with
any other relevant information indicates that the Remedial Action is
not protective of human health or the environment.
82. United States' Post-certification reservations. Notwithstanding
any other provision of this Consent Decree, the United States reserves,
and this Consent Decree is without prejudice to, the right to institute
proceedings in this action or in a new action, or to issue an
administrative order seeking to compel Settling Defendants (1) to
perform further response actions relating to the Site or (2) to
reimburse the United States for additional costs of response if,
subsequent to Certification of Completion of the Remedial Action:
(i) Conditions at the Site, previously unknown to EPA, are
discovered, or
(ii) Information, previously unknown to EPA, is received, in whole
or in part,
and these previously unknown conditions or this information together
with other relevant information indicate that the Remedial Action is
not protective of human health or the environment.
83. For purposes of Paragraph 81, the information and the
conditions known to EPA shall include only that information and those
conditions known to EPA as of the date the ROD was signed and set forth
in the Record of Decision for the Site and the administrative record
supporting the Record of Decision. For purposes of Paragraph 82, the
information and the conditions known to EPA shall include only that
information and those conditions known to EPA as of the date of
Certification of Completion of the Remedial Action and set forth in the
Record of Decision, the administrative record supporting the Record of
Decision, the post-ROD administrative record, or in any information
received by EPA pursuant to the requirements of this Consent Decree
prior to Certification of Completion of the Remedial Action.
[Note: Include Paragraph 84 in all Consent Decrees.]
84. General reservations of rights. The covenants not to sue set
forth above do not pertain to any matters other than those expressly
specified in Paragraph 80. The United States [and the State]
reserve[s], and this Consent Decree is without prejudice to, all rights
against Settling Defendants with respect to all other matters,
including but not limited to, the following:
(1) Claims based on a failure by Settling Defendants to meet a
requirement of this Consent Decree;
(2) Liability arising from the past, present, or future disposal,
release, or threat of release of Waste Materials outside of the Site;
(3) Liability for future disposal of Waste Material at the Site,
other than as provided in the ROD, the Work, or otherwise ordered by
EPA;
(4) Liability for damages for injury to, destruction of, or loss of
natural resources, and for the costs of any natural resource damage
assessments;
(5) Criminal liability;
(6) Liability for violations of federal or state law which occur
during or after implementation of the Remedial Action; and
[(7) Liability, prior to Certification of Completion of the
Remedial Action, for additional response actions that EPA determines
are necessary to achieve Performance Standards, but that cannot be
required pursuant to Paragraph 14 (Modification of the SOW or Related
Work Plans);] 4
\4\ The Regions may omit this reservation in appropriate
circumstances, such as in exchange for a premium or other consent
decree provision(s), taking into account the risk being assumed by
the Agency.
[Note: Subparagraphs 8 through 10, below, should be used only where
---------------------------------------------------------------------------
appropriate.]
[(8) Previously incurred costs of response above the amounts
reimbursed pursuant to Paragraph 52;]
[(9) Liability for additional operable units at the Site or the
final response action;]
[(10) Liability for costs that the United States will incur related
to the Site but are not within the definition of Future Response
Costs.]
85. Work Takeover. In the event EPA determines that Settling
Defendants have ceased implementation of any portion of the Work, are
seriously or repeatedly deficient or late in their performance of the
Work, or are implementing the Work in a manner which may cause an
endangerment to human health or the environment, EPA may assume the
performance of all or any portions of the Work as EPA determines
necessary. Settling Defendants may invoke the procedures set forth in
Section XIX (Dispute Resolution), Paragraph 66, to dispute EPA's
determination that takeover of the Work is warranted under this
Paragraph. Costs incurred by the United States in performing the Work
pursuant to this Paragraph shall be considered Future Response Costs
that Settling Defendants shall pay pursuant to Section XVI
(Reimbursement of Response Costs).
86. Notwithstanding any other provision of this Consent Decree, the
United States [and the State] retain[s] all authority and reserve[s]
all rights to take any and all response actions authorized by law.
[Note: If the State is a Co-plaintiff, insert the State's Covenant
Not to Sue the Settling Defendants and Reservation of Rights.]
XXII. Covenants By Settling Defendants
87. Covenant Not to Sue. Subject to the reservations in Paragraph
88, Settling Defendants hereby covenant not to sue and agree not to
assert any claims or causes of action against the United States [or the
State] with respect to [FOR FINAL CONSENT DECREES: the Site] [FOR OU
DECREES: the Work, past response actions, and [IF ADDRESSED] Past and
Future Response Costs as defined herein] or this Consent Decree,
including, but not limited to:,
a. 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 CERCLA Sections 106(b)(2), 107,
111, 112, 113 or any other provision of law;
[b. Any claims against the United States, including any department,
agency or instrumentality of the United
[[Page 38835]]
States under CERCLA Sections 107 or 113 related to the Site,] or
c. Any claims arising out of response activities at the Site,
including claims based on EPA's [and the State's] selection of response
actions, oversight of response activities or approval of plans for such
activities.
88. The Settling Defendants reserve, and this Consent Decree is
without prejudice to, claims against the United States, subject to the
provisions of Chapter 171 of Title 28 of the United States Code, for
money damages for injury or loss of property or personal injury or
death caused by the negligent or wrongful act or omission of any
employee of the United States while acting within the scope of his
office or employment under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred. However, any such
claim shall not include a claim for any damages caused, in whole or in
part, by the act or omission of any person, including any contractor,
who is not a federal employee as that term is defined in 28 U.S.C.
2671; nor shall any such claim include a claim based on EPA's selection
of response actions, or the oversight or approval of the Settling
Defendants' plans or activities. The foregoing applies only to claims
which are brought pursuant to any statute other than CERCLA and for
which the waiver of sovereign immunity is found in a statute other than
CERCLA;
89. Nothing in this Consent Decree shall be deemed to constitute
preauthorization of a claim within the meaning of Section 111 of
CERCLA, 42 U.S.C. 9611, or 40 C.F.R. 300.700(d).
[90. Settling Defendants agree to waive all claims or causes of
action that they may have for all matters relating to the Site,
including for contribution, against the following persons:
a. Any person (i) whose liability to Settling Defendants with
respect to the Site is based solely on CERCLA Section 107(a) (3) or
(4), (ii) who arranged for the disposal, treatment, or transport for
disposal or treatment, or accepted for transport for disposal or
treatment, of only Municipal Solid Waste or Sewage Sludge owned by such
person, and (iii) who is a Small Business, a Small Non-profit
Organization, or the Owner, Operator, or Lessee of Residential
Property; and
b. Any person (i) whose liability to Settling Defendants with
respect to the Site is based solely on CERCLA Sec. 107(a) (3) or (4),
and (ii) who arranged for the disposal, treatment, or transport for
disposal or treatment, or accepted for transport for disposal or
treatment, of 55 gallons or less of liquid materials containing
hazardous substances, or 100 pounds or less of solid materials
containing hazardous substances, except where EPA has determined that
such material contributed or could contribute significantly to the
costs of response at the Site.
[Note: provision relating to de minimis parties, if appropriate, may
be inserted here.]
XXIII. Effect of Settlement; Contribution Protection
91. Nothing in this Consent Decree shall be construed to create any
rights in, or grant any cause of action to, any person not a Party to
this Consent Decree. The preceding sentence shall not be construed to
waive or nullify any rights that any person not a signatory to this
decree may have under applicable law. Each of the Parties expressly
reserves any and all rights (including, but not limited to, any right
to contribution), defenses, claims, demands, and causes of action which
each Party may have with respect to any matter, transaction, or
occurrence relating in any way to the Site against any person not a
Party hereto.
92. The Parties agree, and by entering this Consent Decree this
Court finds, that the Settling Defendants are entitled, as of the
effective date of this Consent Decree, to protection from contribution
actions or claims as provided by CERCLA Section 113(f)(2), 42 U.S.C.
9613(f)(2) for matters addressed in this Consent Decree. [``Matters
addressed'' should be defined explicitly in appropriate cases, e.g.,
where the scope of contribution protection may otherwise be unclear
under the circumstances of the case.]
93. The Settling Defendants agree that with respect to any suit or
claim for contribution brought by them for matters related to this
Consent Decree they will notify the United States [and the State] in
writing no later than 60 days prior to the initiation of such suit or
claim.
94. The Settling Defendants also agree that with respect to any
suit or claim for contribution brought against them for matters related
to this Consent Decree they will notify in writing the United States
[and the State] within 10 days of service of the complaint on them. In
addition, Settling Defendants shall notify the United States [and the
State] within 10 days of service or receipt of any Motion for Summary
Judgment and within 10 days of receipt of any order from a court
setting a case for trial.
95. In any subsequent administrative or judicial proceeding
initiated by the United States [or the State] for injunctive relief,
recovery of response costs, or other appropriate relief relating to the
Site, Settling 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 covenants not to sue
set forth in Section XXI (Covenants Not to Sue by Plaintiff[s]).
XXIV. Access to Information
96. 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 Work. Settling Defendants shall also make available to
EPA [and the State], for purposes of investigation, information
gathering, or testimony, their employees, agents, or representatives
with knowledge of relevant facts concerning the performance of the
Work.
97. a. Settling Defendants may assert business confidentiality
claims covering part or all of the documents or information submitted
to Plaintiff[s] under this Consent Decree to the extent permitted by
and in accordance with Section 104(e)(7) of CERCLA, 42 U.S.C.
9604(e)(7), and 40 CFR 2.203(b). Documents or information determined to
be confidential by EPA will be afforded the protection specified in 40
CFR Part 2, Subpart B. If no claim of confidentiality accompanies
documents or information when they are submitted to EPA [and the
State], or if EPA has notified Settling Defendants that the documents
or information are not confidential under the standards of Section
104(e)(7) of CERCLA, the public may be given access to such documents
or information without further notice to Settling Defendants.
b. The Settling Defendants may assert that certain documents,
records and other information are privileged under the attorney-client
privilege or any other privilege recognized by federal law. If the
Settling Defendants assert such a privilege in lieu of providing
documents, they shall provide the
[[Page 38836]]
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 contents of the document, record, or
information: and (6) the privilege asserted by Settling Defendants.
However, no documents, reports or other information created or
generated pursuant to the requirements of the Consent Decree shall be
withheld on the grounds that they are privileged.
98. 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.
XXV. Retention of Records
99. Until 10 years after the Settling Defendants' receipt of EPA's
notification pursuant to Paragraph 49.b of Section XIV (Certification
of Completion of the Work), each Settling Defendant shall preserve and
retain all records and documents now in its possession or control or
which come into its possession or control that relate in any manner to
the performance of the Work or liability of any person for response
actions conducted and to be conducted at the Site, regardless of any
corporate retention policy to the contrary. Until 10 years after the
Settling Defendants' receipt of EPA's notification pursuant to
Paragraph 49.b of Section XIV (Certification of Completion), Settling
Defendants shall also instruct their contractors and agents to preserve
all documents, records, and information of whatever kind, nature or
description relating to the performance of the Work.
100. At the conclusion of this document retention period, Settling
Defendants shall notify the United States [and the State] at least 90
days prior to the destruction of any such records or documents, and,
upon request by the United States [or the State], Settling Defendants
shall deliver any such records or documents to EPA [or the State]. The
Settling Defendants may assert that certain documents, records and
other information are privileged under the attorney-client privilege or
any other privilege recognized by federal law. If the Settling
Defendants assert such a privilege, they shall provide the Plaintiffs
with the following: (1) The title of the document, record, or
information; (2) the date of the document, record, or information; (3)
the name and title of the author of the document, record, or
information; (4) the name and title of each addressee and recipient;
(5) a description of the subject of the document, record, or
information; and (6) the privilege asserted by Settling Defendants.
However, no documents, reports or other information created or
generated pursuant to the requirements of the Consent Decree shall be
withheld on the grounds that they are privileged.
101. Each Settling Defendant hereby certifies individually that, to
the best of its knowledge and belief, after thorough inquiry, it has
not altered, mutilated, discarded, destroyed or otherwise disposed of
any records, documents or other information relating to its potential
liability regarding the Site since notification of potential liability
by the United States or the State or the filing of suit against it
regarding the Site and that it has fully complied with any and all EPA
requests for information pursuant to Section 104(e) and 122(e) of
CERCLA, 42 U.S.C. 9604(e) and 9622(e), and Section 3007 of RCRA, 42
U.S.C. 6927.
XXVI. Notices and Submissions
102. Whenever, under the terms of this Consent Decree, written
notice is required to be given or a report or other document is
required to be sent by one Party to another, it shall be directed to
the individuals at the addresses specified below, unless those
individuals or their successors give notice of a change to the other
Parties in writing. All notices and submissions shall be considered
effective upon receipt, unless otherwise provided. Written notice as
specified herein shall constitute complete satisfaction of any written
notice requirement of the Consent Decree with respect to the United
States, EPA, [the State,] and the Settling Defendants, respectively.
As to the United States:
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
Re: DJ # __________
and
Director, Waste Management Division
United States Environmental Protection Agency
Region ____
----------------------------------------------------------------------
As to EPA:
[Name]
EPA Project Coordinator
United States Environmental Protection Agency
Region ____
----------------------------------------------------------------------
[As to the State:
[Name]
State Project Coordinator
[Address]]
As to the Settling Defendants:
[Name]
Settling Defendants' Project Coordinator
[Address]
XXVII. Effective Date
103. The effective date of this Consent Decree shall be the date
upon which this Consent Decree is entered by the Court, except as
otherwise provided herein.
XXVIII. Retention of Jurisdiction
104. This Court retains jurisdiction over both the subject matter
of this Consent Decree and the Settling Defendants for the duration of
the performance of the terms and provisions of this Consent Decree for
the purpose of enabling any of the Parties to apply to the Court at any
time for such further order, direction, and relief as may be necessary
or appropriate for the construction or modification of this Consent
Decree, or to effectuate or enforce compliance with its terms, or to
resolve disputes in accordance with Section XIX (Dispute Resolution)
hereof.
XXIX. Appendices
105. The following appendices are attached to and incorporated into
this Consent Decree:
``Appendix A'' is the ROD.
``Appendix B'' is the SOW.
``Appendix C'' is the description and/or map of the Site.
``Appendix D'' is the complete list of the Settling Defendants.
[``Appendix E'' is the complete list of the Owner Settling
Defendants.]
XXX. Community Relations
106. Settling Defendants shall propose to EPA [and the State] their
participation in the community relations plan to be developed by EPA.
EPA will determine the appropriate role for the Settling Defendants
under the Plan. Settling Defendants shall also cooperate with EPA [and
the State] in providing information regarding the Work to the public.
As requested by EPA [or the State], Settling Defendants shall
participate in the preparation of such information for dissemination to
the public and in public meetings which may be held or sponsored by EPA
[or the State] to explain activities at or relating to the Site.
[[Page 38837]]
XXXI. Modification
107. Schedules specified in this Consent Decree for completion of
the Work may be modified by agreement of EPA and the Settling
Defendants. All such modifications shall be made in writing.
108. Except as provided in Paragraph 14 (``Modification of the SOW
or related Work Plans''), no material modifications shall be made to
the SOW without written notification to and written approval of the
United States, Settling Defendants, and the Court. Prior to providing
its approval to any modification, the United States will provide the
State with a reasonable opportunity to review and comment on the
proposed modification. Modifications to the SOW that do not materially
alter that document may be made by written agreement between EPA, after
providing the State with a reasonable opportunity to review and comment
on the proposed modification, and the Settling Defendants.
109. Nothing in this Decree shall be deemed to alter the Court's
power to enforce, supervise or approve modifications to this Consent
Decree.
XXXII. Lodging and Opportunity for Public Comment
110. This Consent Decree shall be lodged with the Court for a
period of not less than thirty (30) days for public notice and comment
in accordance with Section 122(d)(2) of CERCLA, 42 U.S.C. 9622(d)(2),
and 28 CFR 50.7. The United States reserves the right to withdraw or
withhold its consent if the comments regarding the Consent Decree
disclose facts or considerations which indicate that the Consent Decree
is inappropriate, improper, or inadequate. Settling Defendants consent
to the entry of this Consent Decree without further notice.
111. If for any reason the Court should decline to approve this
Consent Decree in the form presented, this agreement is voidable at the
sole discretion of any Party and the terms of the agreement may not be
used as evidence in any litigation between the Parties.
XXXIII. Signatories/Service
112. Each undersigned representative of a Settling Defendant to
this Consent Decree and the Assistant Attorney General for Environment
and Natural Resources of the Department of Justice certifies that he or
she is fully authorized to enter into the terms and conditions of this
Consent Decree and to execute and legally bind such Party to this
document.
113. Each Settling Defendant hereby agrees not to oppose entry of
this Consent Decree by this Court or to challenge any provision of this
Consent Decree unless the United States has notified the Settling
Defendants in writing that it no longer supports entry of the Consent
Decree.
114. Each Settling Defendant shall identify, on the attached
signature page, the name, address and telephone number of an agent who
is authorized to accept service of process by mail on behalf of that
Party with respect to all matters arising under or relating to this
Consent Decree. Settling Defendants hereby agree to accept service in
that manner and to waive the formal service requirements set forth in
Rule 4 of the Federal Rules of Civil Procedure and any applicable local
rules of this Court, including, but not limited to, service of a
summons.
SO ORDERED THIS ____ DAY OF __________, 19____ .
----------------------------------------------------------------------
United States District Judge
THE UNDERSIGNED PARTIES enter into this Consent Decree in the
matter of United States v. __________, relating to the __________
Superfund Site.
FOR THE UNITED STATES OF AMERICA
Date: __________
----------------------------------------------------------------------
[Name]
Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
----------------------------------------------------------------------
[Name]
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
----------------------------------------------------------------------
[Name]
Assistant United States Attorney
________District of ________
U.S. Department of Justice
[Address]
[____________________]-------------------------------------------------
[Name]
Assistant Administrator for Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
[WHERE OECA CONCURRENCE REQUIRED]
[____________________]-------------------------------------------------
[Name]
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
[WHERE OECA CONCURRENCE REQUIRED OR OECA ATTORNEY IS PART OF
NEGOTIATION TEAM]
----------------------------------------------------------------------
[Name]
Regional Administrator, Region ____
U.S. Environmental Protection Agency
[Address]
----------------------------------------------------------------------
[Name]
Assistant Regional Counsel
U.S. Environmental Protection Agency
Region ____
[Address]
United States v. __________
Consent Decree Signature Page
FOR THE STATE OF __________
Date:__________--------------------------------------------------------
----------------------------------------------------------------------
[Name]
[Title]
[Address]
THE UNDERSIGNED PARTY enters into this Consent Decree in the matter
of United States v. __________, relating to the __________ Superfund
Site.
FOR __________ COMPANY, INC. *
*A separate signature page must be signed by each corporation,
individual or other legal entity that is settling with the United
States.
---------------------------------------------------------------------------
Date: __________
----------------------------------------------------------------------
[Name--Please Type]
[Title--Please Type]
[Address--Please Type]
Agent Authorized to Accept Service on Behalf of Above-signed
Party:
Name: [Please Type]----------------------------------------------------
Title:-----------------------------------------------------------------
Address:---------------------------------------------------------------
Tel. Number:-----------------------------------------------------------
[FR Doc. 95-18482 Filed 7-27-95; 8:45 am]
BILLING CODE 6560-50-P
