042358

IN TH E UNITE D STATE S DISTRICT COURT F OR THE DISTRICT OF COLORADO

Civil Actio n No. 83-C-2388 STATE OF COLORADO, ADMINISTRATIVE RECORD

Plaintiff ,

vs.

ASARCO INCORPORATED et al. ,

Defendant s an d Third-Part y Plaintiffs .

vs.

LEADVILL E CORPORATION , et al. ,

Third-Part y

Civil Action No. 86-C-1675

UNITED STATES OF AMERICA , Plaintiff ,

vs.

APACHE ENERGY AND MINERALS COMPANY , et al.

Defendants .

CONSENT DECREE WITH ASARCO INCORPORATED , RESURRECTION MININ G COMPANY , NEWMON T MININ G CORPORATION, AND THE RES-ASARCO JOINT VENTURE
TABLE OF CONTENTS

I . BACKGROUN D .................... 

I I . JURISDICTIO N ................... 

III . PARTIE S BOUND .................. . 8

I V . DEFINITION S ................... 

V. GENERAL PROVISIONS ................ . 2

V I. PERFORMANCE OF THE WORK ............. . 31

VII . ADDITIONA L RESPONS E ACTION S ...........  

VIII . EPA PERIODI C REVIEW ............... . 45

I X . QUALIT Y ASSURANCE . SAMPLING , an d DATA ANALYSI 

X. ACCES S ...................... . 49

X I . REPORTING REQUIREMENT S .............. . 52

XII . SUBMISSION S REQUIRIN G AGENCY APPROVAL ...... . 

XIII . PROJECT COORDINATOR S ............... . 57

XIV . ASSURANCE OF ABILITY TO COMPLETE WORK ...... . 59

X V. CERTIFICATION OF COMPLETION ........... . 6

XVI . EMERGENCY RESPONS E ................ . 71

XVII. REIMBURSEMENT OF RESPONS E COST S ......... . 72

XVIII . PAYMENT S B Y THE UNITED STATES AND THE STAT E ... . 78

XIX . INDEMNIFICATION AN D INSURANC E ........

X X. FORCE MAJEURE .................. . 83

XXI . DISPUT E RESOLUTION ................ . 86

XXII . STIPULATE D PENALTIE S ..............

XXIII. COVENANTS NOT TO SU E BY PLAINTIFFS ........ . 103

XXIV . COVENANTS BY SETTLING DEFENDANTS .......

XXV . EFFECT OF SETTLEMENT; CONTRIBUTION PROTEC

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XXVI . ACCES S T O INFORMATION .............. . 118

XXVII. RETENTION OF RECORDS ............... . 120

XXVIII . NOTICE S AN D SUBMISSION S ............

XXIX . EFFECTIV E DAT E .................. . 124

XXX . RETENTION OF JURISDICTION ............ 

XXXI . APPENDICES .................... . 124

XXXII . COMMUNIT Y RELATION S ............

XXXIII . MODIFICATIO N ................

XXXIV . LODGING AND OPPORTUNITY FOR PUBLI C COMMENT .... . 126

XXXV . SIGNATORIES/SERVIC E .............

i ll
I . BACKGROUND v^

 ————— A. On August 6, 1986, the United State s of America

("United States") , at the request of the Administrator of the

United State s Environmental Protection Agency ("EPA") , filed a

complaint against , among others, defendant s ASARCO Incorporated

("Asarco") , Resurrection Mining Company and Newmont Mining

Corporation ("Resurrection"), and the Res-ASARCO Joint Venture

("Res-Asarco") (collectivel y the "Settlin g Defendants" ) pursuant

to Sections 106 and 107 of the Comprehensive Environmental

Response, Compensation , and Liabilit y Act ("CERCLA") , 42 U.S.C .

§§ 9606 and 9607, seeking injunctive relief for performance of

response actions consistent with the National Contingency Plan ,

40 C.F.R . Part 300 (as amended) ("NCP"), and for reimbursement of

., costs incurred and to be incurred by the United State s in

response to the release or threat of release of hazardous

substances at the California Gulch Superfun d Sit e located in and

around Leadville , Colorado.

B. On December 9, 1983, the Stat e of Colorado ("the

State" ) filed a complaint against defendant s Asarco,

Resurrection, and Res-Asarco under Sectio n 107 of CERCLA 42

U.S.C . § 9607, for injury , destruction, or loss of natural

resources associated with the release of hazardous substances and

the cost of assessment of such injury from the Yak Tunnel and

associated mine workings. The State amended its complaint on

Apri l 8, 1985, to include additional claims under Sectio n 107 of

CERCLA, 42 U.S.C . § 9607, for reimbursement of costs incurred and
to be incurred in response to the release or threat of release of

hazardous substances at the Yak Tunnel , associated mine workings,

California Gulch, and portion s of the Arkansas River.

C. The federal and state actions were consolidated into

one proceeding on February 3, 1987.

D. The Settlin g Defendant s have asserted counter-claims

f or contribution against both the United State s and the Stat e in

this consolidated action. For the purpose of this Consent

Decree, the counter-claims of the Settlin g Defendant s against the

Stat e include, inter alia, the claims set forth in the original

counter-claims against the Stat e under Sectio n 107(a ) of CERCLA ,

42 U.S.C . § 9607(a) , and Sectio n 113 of CERCLA, 42 U.S.C . § 9S13,

and the proposed amended counter-claims against the Stat e under

Sectio n 107{a ) of CERCLA, 42 U.S.C . § 9607(a) , and Section 113 of

CERCLA, 42 U.S.C . § 9613, based upon the use of mine waste, slag,

and tailings in connection with road base, road sanding, road

maintenance and other such activities at the Sit e by or on behalf

of the Colorado Department of Transportation , formerly known as

the Colorado Department of Highways , or other agencies or

departments of the State .

E. Pursuant to Sectio n 105 of CERCLA, 42 U.S.C . § 9605,

E PA placed the California Gulch Superfun d Sit e on the National

Priorities List set forth at 40 C.F. R part 300, Appendix B, by

publication in the Federal Register on September 8, 1983 (48 Fed.

Reg. 40,658, 40,670) .

2
F. On March 29, 1988, EPA issued a Record of Decision

("ROD" ) selectin g the remedial action for the Yak Tunnel Operable

Unit ("Yak Tunnel OU" ) . The Yak Tunnel OU ROD was subsequently

changed by a Record of Decision Modificatio n issued March 23,

1989, and an Explanatio n of Significan t Difference s issued by EPA

on October 22, 1991. EPA issued the followin g Unilateral

Administrative Orders ("UAOs" ) to the Settlin g Defendant s to

perform work at the Yak Tunnel OU: UAO No. CERCLA VIII 88-11,

Jul y 25, 1988; and UAO No. CERCLA VIII 89-20, March 19, 1989.

Pursuant to these UAOs , the Settlin g Defendant s constructed a

surge pond (UAO 88-11) and water treatment plant (UAO 89-20 ) near

t he portal of the Yak Tunnel to treat all tunnel effluen t before

i ts release into California Gulch. The water treatment plant

. went into operation in February, 1992. On Apri l 29, 1993, EPA

issued the Firs t Amendment to UAO 89-20 for the Yak Tunnel OU

requiring the Settlin g Defendant s to, among other things,

rehabilitate approximately 1,500 fee t of the Yak Tunnel in order

to construct the flo w control bulkhead, and establish and

implement a surface and groundwater monitoring program as part of

the operation and maintenance of the Yak Tunnel OU remedial

action. A Second Amendment to UAO 89-20 was issued on June 15,

1993, requiring the Settlin g Defendant s to divert spring or

stormwater run-of f from Upper California Gulch to the Yak Tunnel

treatment plant . Thi s action was implemented for the purpose of

gathering additional data regarding the capacity of the plant and

the effect s of sediment from the run-of f on plant equipment and
sludge characteristics. The Settlin g Defendant s have completed

the work required by UAO 88-11 and the original 89-20. The

Settlin g Defendant s are currently undertaking the work required

by the Firs t and Second Amendments to UAO 89-20.

G. In response to a release or a substantial threat of a

release of a hazardous substance(s ) at or from the California

Gulch Superfun d Site , EPA commenced or administratively ordered

various parties to commence various remedial investigations

("RIs" ) and feasibilit y studies or other work consistent with the

NCP :

1. On September 28, 1990, EPA and the Settlin g Defendant s entered into an Administrative Order on Consent

("AOC") , EPA Docket No. CERCLA-VIII-90-27 , for the

performance of soils samplin g and air monitoring. Asarco

submitted a draf t Air Quality Monitoring Report to EPA in December, 1991. The results of these remedial

investigations were also incorporated into the Preliminary Human Health Risk Assessment , issued by EPA in December,

1991.

2. On December 14, 1990, EPA and the Settlin g Defendant s entered into an AOC, EPA Docket No. CERCLA-VIII-

,91-02, for performance of site improvement activities at the Garibaldi Workings , the North Mike Workings, the Oregon Gulch Tailings Pond, and the Starr Ditch. Work required by

this AOC was completed by June 1, 1992 and a Final Summary Construction Report for Sit e Improvements was submitted to

E PA on Jul y 27, 1992.

3. On August 29, 1991, EPA issued a UAO, EPA Docket N o. CERCLA-VIII-91-19 , which required Asarco to conduct

studies and complete RIs related to the following: Demographics Work Plan , Final Samplin g Plan for Samplin g and Analysi s of Lead Occurrence Withi n and Immediatel y Adjacen t

to Residences, Soi l Investigatio n Work Plan, Mine Waste Pile Remedial Investigation , Tailin g Disposal Area Remedial Investigatio n Work Plan and Surfac e Water, Bed Material and Aquatic Ecosystem Data Collectio n Program Work Plan. A Firs t Amendment to this UAO, issued on October 8, 1991,

required Asarco to conduct and complete the Hydrogeologic Work Plan. A Second Amendment to this UAO, issued on November 21, 1991, required Asarco to conduct and complete
t he Smelter Sit e Investigatio n Work Plan . A Third Amendment

to this UAO, issued September 8, 1992, required Asarco to

conduct and complete the Work Plan for Terrestrial Ecosystem

Evaluation. A Fourth Amendment to this UAO, issued on March

9, 1993, required Asarco to conduct and complete the Work Plans for Background Groundwater Quality Assessment and Pre- mining Soil s Geochemistry. The remaining work to be

performed by Asarco under UAO 91-19, as amended, is the

final Rl report for each of the above activities (except the

demographics work pla n and analysis of lead, both of which

have been completed) .

4. To date, Asarco has submitted draf t RI reports for Mine Waste (submitted February, 1993) , Tailin g Disposal

(submitted February, 1993) , Surfac e Water (submitted March,

1993) , Terrestrial Ecosystem Evaluation (submitted April ,

1993) , Smelter Sit e Remedial Investigatio n (submitted May,

1993) , Hydrogeologic Remedial Investigatio n Report

(submitted May , 1993) , Aquatic Ecosystem Characterization

(submitted June , 1993) , Soi l Inventory an d Geology (May , 1992) with Data Amendments (May , August , and September,

1992) , Demographics Data Report (November, 1993) , and Data Report for Lead Occurrence In/Adjacen t to Residences

(November, 1993) .

5. On September 10, 1991, EPA issued a UAO, EPA Docket No. CERCLA-VIII-91-2 2 which required Resurrection to

conduct and complete the final Soil s Investigatio n Work Plan. Field work under this UAO was completed in Summer,

1992. Resurrection submitted a draf t RI report to EPA

pursuant to this UAO on April 30, 1993.

6. On September 12, 1991, EPA and the Hecla Mining Company ("Hecla" ) entered into an AOC, EPA Docket No. CERCLA-VIII-91-24 , for preparation of an Engineering

Evaluation/Cos t Analysi s ("EE/CA" ) for the Stringtown/Malta Gulch Tailings portion of the California Gulch Superfun d Site . Pursuant to this AOC, Hecla was also required to

determine the nature and extent of any releases of the Malta Gulch Tailings and any appropriate response activities to

address such releases. On January 6, 1993, a Partial Consent Decree between the United State s and Hecla was

entered by this Court. A final EE/CA was issued on August

2, 1993 for public review and comment.

7. On December 3, 1992, EPA and The Denver & Rio Grande Western Railroad Company ("D&RG" ) entered into an AOC, EPA Docket No. CERCLA-VIII-92-06 , for the performance

of a remedial investigation/feasibilit y study on lead slag

piles and performance of specified studies on one zinc pile

at the California Gulch Superfun d Site . Thi s AOC is

identified as EPA Docket No. CERCLA-VIII-92-06 . DtRG
submitted the "Final RI Report for Lead Sla g Pil e Remedial Investigation " to EPA on December 4, 1993 and submitted a "Final Zinc Sla g Pil e Remedial Investigation " to EPA on December 11, 1993.

8. On September 24, 1992, EPA entered into an AOC, E PA Docket No. CERCLA-VIII-92-30 , with Asarco and Resurrection for performance of a metals speciation program. A data report is currently in progress.

9. A consent decree between the United State s and D&RG was lodged with this Court on September 15, 1993, and

entered on December 15, 1993. Pursuant to the terms of this

decree, DiRG paid a portion of the United States response

costs and agreed to conduct the remedial actions at the slag

piles and railroad yard and easement shown as OU3 (D&RG Slag Piles/Railroad Easement/Railroad Yard ) on the map attached

as Appendix A.

10. A proposed consent decree between the United State s and Hecla addressing the Malta Gulch Tailings , and Hecla' s claims against the United States , was lodged with

this Court in April , 1994.

H. EPA issued The Final Screening Feasibilit y Stud y for

Remedial Alternatives at the California Gulch NPL Sit e dated

September, 1993 (the "SFS") . The SFS initiated the CERCLA

Feasibilit y Stud y process for the California Gulch Superfun d Sit e

pursuant to Sectio n 300.430(e)(7 ) of the NCP by developin g and

screening remedial alternatives applicable to sources of

contamination within the area designated by EPA as the Remedial

Investigation/Feasibilit y Stud y ("RI/FS" ) Area i n EPA' s Ma y 10,

1991 RI/FS Stud y Area map. Before finalizin g the SFS, EPA

provided notice and copies of the draf t SFS to the public and

accepted comments on the draf t report. These comments and EPA's

response to them are contained in the administrative record for

t he Site .

I. A partial Consent Decree among the United States , the
State , an d the Settlin g Defendant s settlin g the United States

a n d the State' s claims for their past response costs incurred

prior to February 1, 1991, and February 1, 1992, respectively ,

was entered by the Court on September 4, 1993.

J . I n accordance with Sectio n 122 (j) (1 ) of CERCLA, 42

U.S.C . § 9622(j)(l) , EPA has notified the Department of the

Interior of negotiations with potentiall y 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. The State natural resource

trustees have also been notified of the negotiation of this

Consent Decree.

. K. The Parties do not admit liabilit y to one another by

entering into this Consent Decree.

L. Based on the information presently available to EPA and

t he Colorado Department of Health ("CDH"), EPA and CDH believe

that the Work will be properl y and promptl y conducted by Settlin g

Defendant s if conducted in accordance with the requirements of

this Consent Decree and its appendices.

M. Solel y for the purposes of Section 113(j ) of CERCLA, 42

U.S.C . § 9613(j) , the Work to be performed by Settlin g Defendants

pursuant to this Consent Decree shall constitute response actions

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 implementatio n of

this Consent Decree wil l expedite the cleanup of the Sit e and

will avoid prolonged and complicated litigatio n between the

Parties , and that this Consent Decree is fair , reasonable, and in

t he public interest.

NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:

I I . JURISDICTIO N

1. Thi s Court has jurisdictio n over the subject matter of

this action and over proceedings pursuant to this Consent Decree

pursuant to 28 U.S.C . §§ 1331 and 1345, and 42 U.S.C . §§ 9606,

9607, and 9613. Thi s Court also has personal jurisdictio n over

t he Parties. Solel y for the purposes of this Consent Decree and

the underlying complaints , the Parties waive all objection s and

defenses they may have to jurisdictio n of the Court or to venue

in this District . The Parties shall not challenge the terms of

this Consent Decree or this Court' s jurisdiction to enter and

enforce this Consent Decree. Thi s Consent Decree is entered into

by the United State s under the authority of, inter alia. Sectio n

1 22 of CERCLA, 42 U.S.C . § 9622.

III . PARTIE S BOUND

2. Thi s Consent Decree applies to and is binding upon the

United States , the State , and upon the Settlin g Defendant s and

their successors and assigns. Any change in ownership or

corporate status of Settlin g Defendants , including, but not

limited to any transfer of assets or real or personal property ,

shall in no way alter their responsibilities under this Consent

8
Decree.

3. Each Responsible Settlin g Defendan t shall provide a

copy of this Consent Decree to its contractors hired to perform

the Work required by this Consent Decree and to each person

representing the Responsible Settlin g Defendan t with respect to

the Sit e 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. Each Responsible Settlin g

Defendan t or its contractors shall provide written notice of the

Consent Decree to all subcontractors it hires to perform any

portion of the Work required by this Consent Decree. Each

Responsible Settlin g Defendan t shall nonetheless be responsible

for ensuring that its 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 Responsible Settlin g

Defendant hiring it within the meaning of Section 107(b) ( 3 ) of

CERCLA, 42 U.S.C . § 9607(b)(3) .

I V . DEFINITION S

4. Unless otherwise expressly provided herein, any term

used in this Consent Decree which is defined in CERCLA or in

regulations promulgated under CERCLA. shall have the meaning

assigned to it 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 followin g
definition s shall apply .

"Action Memorandum" shall mean the decision document,

includin g any changes or amendments thereto, issued by EPA

selectin g a removal action under this Consent Decree pursuant to

CERCLA and the NCP.

"Asarco" shall mean defendan t ASARCO Incorporated, a

N ew Jerse y corporation.

"Asarco Work Area" shall mean those portions of the

Sit e shown on the map attached as Appendix A as the Asarco Work

Area, including the areas depicted as OU5 (Asarco

Smelters/Slag/Mil l Sites ) , OU7 (Apache Tailings Impoundments) ,

and OU9 (Residential Populated Areas) , all as more precisely

defined in the attached Asarco WAMP; provided that OU9

(Residential Populated Areas ) shall not include soils within the

followin g described area for purposes of any response action

which addresses a risk only to terrestrial ecosystems: the area

north of the Leadville Cit y limit s along Highways 24 and 91 and

which is zoned Highway Business as depicted on Appendix A, and

that portion of the area zoned Industrial Mining as depicted

Appendix A which is (a) north of the Leadville City limit s and

east of OU3 (D&RG Slag Piles/Railroad Easement/Railroad Yard) ,

and (b) east of the Leadville City limit s and north of Lake

County Road No. 2A (the California Gulch Road)(referred

collectivel y as the "north/eastern portion of OU9" in Paragraph

92.a. of this Consent Decree).

"Aaarco Work Area Management Plan" or "Asarco WAMP"

10
shall mean the Statemen t of Work under which Asarco shall

commence Work within the Asarco Work Area under this Consent

Decree. The Asarco WAMP is attached as Appendix B.

"CERCLA" shall mean the Comprehensive Environmental

Response, Compensation , and Liabilit y Act of 1980, as amended, 42

U.S.C . §§ 9601 et sea.

"CDH" shall mean the Colorado Department of Health and

any successor department s or agencies of the State .

"Consent Decree" shall mean this Decree and all

appendices attached hereto (listed i n Sectio n XXXI) . In the

event of conflic t 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 state or federal holiday. In computing any

period of time under this Consent Decree, where the last day

would fal l on a Saturday , Sunday, or Stat e or Federal holiday,

the period shall run until the close of business of the next

working day.

"Deep Ground Waters« shall mean all ground waters

within the Sit e other than those included within the definitio n

of Site-wide Surfac e and Ground Waters .

"Engineering Evaluation/Cost Analysis11 or "EE/CA" shall

mean an analysis of removal alternatives according to 40 C.F.R . §

300.415(b)(4 ) .

"EPA" shall mean the United State s Environmental

11
Protectio n Agency and any successor department s or agencies of

t he United States .

"Feasibilit y Study " or "FS " shall mean the process of

developin g and evaluatin g option s for remedial action for any

release or threat of release of Waste Material at or from the

Site . Thi s term also refers to a report that describes the

result of the study.

"Future Response Costs" shall mean all costs,

including, but not limited to, direct and indirect costs incurred

not inconsistent with the NCP and paid by the United State s or

t he Stat e after Jul y 31, 1993: (a) in connection with the

preparation and entry of this Consent Decree; (b) in reviewing or

developin g plans , reports and other items prepared pursuant to

this Consent Decree, verifyin g the Work, or otherwise overseeing

or enforcing this Consent Decree, including, but not limited to,

payroll costs, contractor costs, travel costs, laboratory costs,

t he costs incurred pursuant to Section s VII (Additional Response

Actions) , VII I (EPA Periodic Review) , X (Access) , XV I (Emergency

Response) , and Paragraph 92 of Sectio n XXIII (Covenants Not to

Sue by Plaintiffs) , and which are not required to be reimbursed

by D&RG, Hecla, or any other person under those AOCs referred to

in Paragraph I.G . or any other consent decree; and (c) in

performin g Work pursuant to Paragraph 99. "Future Response

Costs" shall not include: (a) any costs included within the

definitio n of "Past Response Costs" under this Consent Decree;

(b) any costs incurred and paid by the United States or the State

12
with respect to any matters not being settled by this Consent

v> Decree; and (c) any costs incurred and paid with respect to areas

or media not included within a Responsible Settlin g Defendant' s

Work Area, subject to an equitable allocatio n of general, Sitewide costs as identified in Paragraph 59.

"National Contingency Plan" or "NCP" shall mean the

National Oil and Hazardous Substances Pollutio n Contingency Plan

promulgated pursuant to Sectio n 105 of CERCLA, 42 U.S.C . § 9605,

codified at 40 C.F.R . Part 300, including, but not limited to,

any amendments thereto.

"Operable Unit" or "OU" shall mean any discrete

geographical area, media, or type of contamination, as designated

by EPA, that lends itsel f to efficien t study or clean-up of

, separate other geographical areas, media, or types of

contamination. The OUs at the Site as currently defined by EPA

are depicted on the map attached as Appendix A, and are listed in

the attached Asarco and Resurrection WAMPs.

"Operation and Maintenance" or "O & M" shall mean all

activities required to maintain the effectivenes s of a Remedial

Action as required under the Operation and Maintenance Plan

approved or developed by EPA pursuant to this Consent Decree and

a ny relevant Statement of Work (SOW).

"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 Stat e of

Colorado, Asarco, Resurrection, and the Res-Asarco Join t Venture.

^ 13
"Past Response Costs" shall mean all costs, including

but not limited to direct and indirect costs, that the United

State s paid between February 1, 1991 and Jul y 31, 1993 or that

t he Stat e paid between February 1, 1992 and Jul y 31, 1993, both

with regard to the entire California Gulch Superfun d Site . "Past

Response Costs" shall also include any contractor costs billed to

or paid by the United State s or the Stat e before August 31, 1993.

F or purposes of contractor costs of the United States , any

contractors of the U.S . Department of Justic e paid in September,

1993 shall be deemed to have billed the United State s prior

August 31, 1993.

"Performance Standards" shall mean the cleanup

standards, standards of control, and other substantive

requirements, criteria or limitation s set forth in a ROD, Action

Memorandum, or Statemen t of Work developed in accordance with a

ROD or Action Memorandum issued by EPA under this Consent Decree.

"Plaintiffs" shall mean the United State s of America

a nd the Stat e of Colorado.

"Record of Decision" or "ROD" shall mean the primary

decision document, including any changes or amendments thereto,

issued by EPA pursuant to CERCLA and the NCP that substantiates

t he need for a Remedial Actio n within a Responsible Settlin g

Defendant' s Work Area, selects a Remedial Action , and explains

t he rationale for such Remedial Action . For purposes of Section

X XI of this Consent Decree (Dispute Resolution) , the term "ROD"

shall also include any Action Memorandum issued by EPA that

14
O substantiates the need for and selects a removal action within a

Responsible Settlin g Defendant' s Work Area (except an Action

Memorandum which may be issued by EPA to address an emergency

situation under Sectio n XVI of this Consent Decree).

"Remedial Action" shall mean those activities , except

for Operation and Maintenance, to be undertaken by a Responsible

Settlin g Defendan t to implement the final plans and

specification s submitted by that Responsible Settlin g Defendant

pursuant to the Remedial Design Work Plan and approved by EPA.

"Remedial Actio n Work Plan(s) 1 1 shall mean the

document(s) submitted by a Responsible Settlin g Defendant to EPA

pursuant to Paragraph 14.a. and described more full y in Paragraph

14.b..

, "Remedial Design" shall mean those activities to be

undertaken by a Responsible Settlin g Defendant to develop the

final plans and specification s for the Remedial Action pursuant

to the Remedial Design Work Plan.

"Remedial Design Work Plan<s) n shall mean the

document(s) submitted by a Responsible Settlin g Defendant

pursuant to Paragraph 13.a. and described more full y in Paragraph

13.b..

"Remedial Investigation" or "RI" shall mean the process

undertaken to determine the nature and extent of any threat to

public health, welfare , or the environment presented by any

release or threat of release of Waste Material at the Site .

I S
"Res-Asarco" shal l mean the Join t Venture between

Resurrection and Asarco formed under the laws of the Stat e of

Colorado pursuant to a join t venture agreement dated June 1, 1956

(such join t venture agreement, together with all amendments and

supplements , referred to as the Joint Venture Agreement) .

"Responsible Settlin g Defendant" shall mean Asarco when

a provision of this Consent Decree applie s to the Asarco Work

Area or to any obligatio n related to the Asarco Work Area and

shall mean Resurrection when a provision of this Consent Decree

applie s to the Resurrection Work Area or to any obligation

related to the Resurrection Work Area.

"Resurrection" shall mean Resurrection Mining Company,

a Delaware corporation, its parent corporation, Newmont Mining

Corporation, a Delaware corporation, and solely with respect to

any liabilities at the Sit e derived from Resurrection Mining

Company and/or Newmont Minin g Corporation, any successor to those

companies which is bound by the terms of this Consent Decree.

"Resurrection Work Area" shall mean those portions of

the Sit e shown on the map attached as Appendix A as the

Resurrection Work Area, including the areas depicted as OU4

(Upper California Gulch) , OU8 (Lower California Gulch) , and OU10

(Oregon Gulch) , all as more precisel y defined in the attached

Resurrection WAMP.

"Resurrection Work Area Management Plan" or

"Resurrection WAMP" shall mean the Statemen t of Work under which

Resurrection shall commence work within the Resurrection Work

16
Area under this Consent Decree. The Resurrection WAMP is

attached as Appendix D.

"Screening Feasibilit y Study " or "SFS " shall mean the

Final Screening Feasibilit y Stud y for Remediation Alternatives at

t he California Gulch NPL Site , Leadville , Colorado, dated

September, 1993.

"Section" shall mean a portion of this Consent Decree

identified by a roman numeral.

"Settlin g Defendants" shall mean Asarco, Resurrection

(includin g Newmont Minin g Corporation) , and Res-Asarco.

"Settlin g Federal Agencies" shall mean the United

State s Department of Commerce, the United State s Department of

the Interior, and other agencies of the United State s which may

> have liabilit y at the Site .

"Settlin g State Agency" shall mean the Colorado

Department of Transportatio n ("CDOT") , formerly known as the

Colorado Department of Highways , or other agencies and

departments of the Stat e based upon the use of mine waste, slag

and tailings in connection with road base, road sanding, road

maintenance and such activities at the Site .

"Site" shall mean the California Gulch NPL Site

currently defined as the Remedial Investigation/Feasibilit y Study

area of approximately 16 1/2 square miles located within Lake

County, Colorado, and depicted on the map attached as Appendix A.

F or purposes of this Consent Decree "Site" shall exclude: (1) the

Yak Tunnel Operable Unit (shown as GUI on the map attached as

0

 17
Appendix A) ; (2) that portio n of the Arkansas River floociplai n

between the confluenc e of the Arkansas River and California Gulch

and the confluence of the Arkansas River and Lake Fork (shown as

OU11 o n the map attached as Appendix A) ; an d (3) "Site-wide

Surfac e and Ground Waters" as defined herein.

"Site-wide Surfac e and Ground Waters" shall mean

surface waters and/or the shallow alluvial aquifer not to exceed

a depth of 250 fee t or contact with bedrock, whichever is the

lesser depth below the ground surface.

"Source Remediation" shall mean response actions

designed to prevent or control the release or threatened release

of Waste Material from sources of contamination such as tailings

impoundments, fluvial tailings , waste rock piles and soils into

all pathways of migration , but shall not include any treatment of

Site-wide Surfac e and Ground Waters .

"State" shall mean the Stat e of Colorado.

"Statement of Work" or "SOW" shall mean a statement of

work for implementatio n of Work within the Work Areas under this

Consent Decree including, but not limited to, Feasibilit y

Studies , Removal Actions , Remedial Designs, Remedial Actions , and

O&M, and any modification s made to any of the foregoin g in

accordance with this Consent Decree.

"Supervising Contractor" shall mean the principal

contractor retained by Asarco or Resurrection to supervise and

direct the implementatio n of the Work under this Consent Decree.

18
. "United States" shall mean the United State s of

America.

"WAMP" shal l mean either the Asarco WAMP and/or the

Resurrection WAMP.

"Waste Material" shall mean any of the followin g which

resulted from or was used in connection with the extraction,

beneficiation , and processing of ores or minerals: (1) any

"hazardous substance" under Sectio n 101(14 ) of CERCLA, 42 U.S.C .

§ 9601(14) ; (2) any pollutan t or contaminant under Sectio n

101(33) , 42 U.S.C . § 9601(33) ; an d (3) an y solid waste under

Sectio n 104(27 ) of RCRA, 42 U.S.C . § 6903(27) .

"Work" shall mean all activities Responsible Settlin g

Defendant s are required to perform under this Consent Decree,

i except those required by Sectio n XXVII (Retention of Records).

"Work Areas" shall mean the "Asarco Work Area" and the

"Resurrection Work Area."

"Yak Tunnel OU" shall mean the work that addresses the

discharge of acid mine drainage from the Yak Tunnel into

California Gulch. The facilit y addressed by this remedy includes

t he entire length of the Yak Tunnel; the Yak Tunnel portal; the

bulkhead to be constructed within the Yak Tunnel; external Yak

Tunnel flo w conveyance channels, ditches, and pipelines; existing

and future monitoring wells; and the surge pond and water

treatment plant constructed pursuant to UAO No. CERCLA 88-11 and

U AO No. CERCLA 89-20 as amended.

19
V . GENERAL PROVISION S

5. Objectives of the Parties

T he objective s of the Parties in entering into this

Consent Decree are: (a) to protect public health, welfare , an d

the environment from releases or threatened releases of Waste

Material at or from the Site ; (b) to divide the Sit e into areas

of responsibilit y among the Parties; (c) to improve the quality

of Site-wide Surfac e and Ground Waters through Source

Remediation; (d) to reimburse the Past and Future Response Costs

of the Plaintiffs ; (e) to resolve the liabilitie s of the Settlin g

Defendant s at the Sit e subject to the specifi c terms and

limitation s set forth in this Consent Decree; and (f) to resolve

t he claims of the Settlin g Defendant s against the United State s

and the Stat e at the Sit e subject to the specifi c terms and

limitation s set forth in this Consent Decree.

6. Commitments by the Parties

a. Subjec t to the terms of this Consent Decree,

Asarco: (i) shall perform an d pa y for response actions selected

by EPA to effec t Source Remediation within the Asarco Work Area

in accordance with all plans , standards, specifications , and

schedules set forth in or developed and approved by EPA pursuant

to Sectio n VI of this Consent Decree; (ii) waives any challenge

or defenses it may have to perform such response actions in the

Asarco Work Area on the basis that it is not a liable party under

Sectio n 107(a ) of CERCLA, 42 U.S.C . § 9607(a) , or Sectio n 7003 of

RCRA, 42 U.S.C . § 6793; and (iii) shall reimburse the United

20
State s and the Stat e for Future Response Costs . Except with

regard to the movement of Waste Material as described in

Paragraph 6.d. , Asarco shall have no responsibilit y pursuant to

this Consent Decree to perform or pay for any response actions at

t he Sit e outside the Asarco Work Area.

b. Subjec t to the terms of this Consent Decree

Resurrection: (i) shall perform and pay for response actions

selected by EPA to effec t Source Remediation within the

Resurrection Work Area in accordance with all plans , standards,

specifications , and schedules set forth in or developed and

approved by EPA pursuant to Section VI of this Consent Decree;

(ii ) waives any challenge or defenses it may have to perform

such response actions in the Resurrection Work Area on the basis

, that it is not a liable party under Section 107 (a) of CERCLA, 42

U.S.C . § 9607(a) ; and (iii ) shall reimburse the United State s and

the Stat e for Future Response Costs. Except with regard to the

movement of Waste Material as described in Paragraph 6.d. ,

Resurrection shall have no responsibility pursuant to this

Consent Decree to perform or pay for any response actions at the

Sit e outside the Resurrection Work Area.

c. Site-wide Surfac e and Ground Waters shall be

considered as pathways of migration of Waste Material for

purposes of evaluating alternative response actions and

establishing Performance Standards for Source Remediation under

the terms of this Consent Decree. Subjec t to the provisions of

Section XVI, RODs selecting response actions to effec t Source

^ 21
Remediation under the terms of this Consent Decree will be

implemented before a ROD is issued for OU12 (Site-wide Surfac e

a n d Ground Waters) . The ROD(s) for OU12 wil l address remediation

of Site-wide Surfac e and Ground Waters and shall be selected in

accordance with CERCLA and the NCP.

i. If a ROD addressing Site-wide Surfac e and

Ground Waters select s additional Source Remediation, the

Responsible Settlin g Defendan t in whose Work Area such Source

Remediation is required shall be responsible (perform and pay

for) such additional Source Remediation.

i i. If a ROD addressing Site-wide Surfac e and

Ground Waters select s any further response actions other than

additional Source Remediation, any liabilit y for such further

response actions, irrespective of where such further response

actions are implemented, is reserved from this Consent Decree,

provided that in any subsequent proceedings regarding Site-wide

Surfac e and Ground Waters:

( A) Asarco waives any defense that it is not a liable part y under Sectio n 107(a ) of CERCLA,

42 U.S.C . § 9607(a) , or Section 7003 of RCRA,

42 U.S.C . § 6793, for such further response

actions needed to address Waste Material in Site-wide Surfac e and Ground Waters within or

which flo w from those areas currently

depicted on the map attached as Appendix A

and described in the attached Asarco WAMP as O U5 (Asarco Smelters/Slag/Mil l Sites) , OU7 (Apache Tailings Impoundments) , and the 39

mine waste pile s located within OU9

(Residential Populated Areas) which are

identified in the Asarco WAMP;

( B) Resurrection waives any defense that it is

n ot a liable party under Section 107(a ) of

CERCLA, 42 U.S.C . § 9607(a) , or Sectio n 7003

22
of RCRA, 42 U.S.C . § 6?93, for such further

response actions needed to address Waste Material in Site-wide Surfac e and Ground Waters within or which flo w from those areas

currently depicted on the map attached as Appendix A and described in the attached Resurrection WAMP as OU4 (Upper California Gulch ) and OU10 (Oregon Gulch) ; and

( C) The Settlin g Defendant s shall not be liable

f or such further response actions to the

extent that such further response actions

address Waste Material in Site-wide Surfac e

and Ground Waters within or which flo w from

those areas currently depicted on the map

attached as Appendix A and described in the

attached WAMPs as OU2 (Malta Gulch) or OU6

(Star r Ditch/Penrose Dump/Stra y Horse Gulch/Evan s Gulch.

d. Thi s Paragraph 6.d. governs movement of Waste

Material from outside a Responsible Settlin g Defendant' s Work

Area into such Responsible Settlin g Defendant' s Work Area after

entry of this Consent Decree.

i. If, as a result of the continuing releases

which seasonally occur in the various pathways of migration at

the Site , there is a release of Waste Material into such

Responsible Settlin g Defendant' s Work Area prior to the issuance

of a Certificatio n of Completio n of Remedial Action for the OU in

which the Waste Material came to be located, the Responsible

Settlin g Defendant in whose Work Area such Waste Material came to

be located shall perform and pay for the response actions

associated with such Waste Material .

ii. If there is an extraordinary release of Waste

Material from outside a Responsible Settlin g Defendant' s Work

Area into an OU within such Responsible Settlin g Defendant' s Work
Area prior to the issuance of a Certificatio n of Completio n of

the Remedial Actio n for the OU within such Work Area, and if the

response to such extraordinary release would cause a material and

substantial increase in the cost of performin g Work in such

receiving OU, then the Responsible Settlin g Defendan t in whose

Work Area such Waste Material has come to be located wil l not be

obligated to perform or pay for the additional Work necessary to

address such extraordinary release. If such Waste Material has

moved from another Responsible Settlin g Defendant' s Work Area,

then such other Responsible Settlin g Defendan t shall be obligated

to perform or pay for the additional Work necessary to address

such extraordinary release.

iii. If there is a release of Waste Material from

outside a Responsible Settlin g Defendant' s Work Area into such

Responsible Settlin g Defendant' s Work Area afte r the issuance of

a Certificatio n of Completio n of Remedial Action for the OU in

which such Waste Material came to be located, and if the response

to such release would cause the incurrence of substantial

additional response costs pursuant to Sectio n VII , Section VIII ,

Sectio n XVI, Paragraphs 94 or 95 (pre- and post-certificatio n

reservations), then the Responsible Settlin g Defendant in whose

Work Area such Waste Material has come to be located will not be

obligated to perform or pay for response actions necessary to

address such release. If such Waste Material has moved from

another Responsible Settlin g Defendant' s Work Area, then such

other Responsible Settlin g Defendan t shall be obligated to

24
perform or pay for the response actions necessary to address such

release.

e. Asarco and Resurrection will full y and in good

faith cooperate with each other and with the United State s and

t he Stat e in evaluating, as part of the final Feasibilit y Stud y

process, the need for a site repository, the capacity and design

criteria for a site repository, and improvements necessary for

the use of a site repository, associated costs, and related

matters. The sole obligatio n of a Responsible Settlin g Defendant

with regard to a repository at the Site , however, is to arrange

f or the placement of Waste Material from its Work Area, including

any Waste Material which may be removed from its Work Area or

released from its Work Area to other areas of the Sit e after a

Certificatio n of Completio n of Remedial Action has been issued

for the OU from which the release occurs, into a repository

located in the Responsible Settlin g Defendant' s Work Area.

f. Res-Asarco shall pay Plaintiff s the Past Response

Costs provided for in this Consent Decree. Res-Asarco shall have

no obligation to perform or pay for any part of the Work required

by this Consent Decree or to pay Future Response Costs of the

United State s or the State .

g. The obligations of Asarco and Resurrection under

this Consent Decree, including the obligations to perform and pay

for response actions within their respective Work Areas and their

obligations to pay the United State s and the Stat e Future

Response Costs , are several and separate, and are not joint .

^ 25
h. In order to conduct response actions for Source

Remediation in those areas currently depicted on the map attached

as Appendix A and listed in the attached WAMPs as OU2 (Malta

Gulch ) and OU6 (Stra y Horse Gulch/Star r Ditch) , EPA and CDH will

seek performance of response actions and/or reimbursement of the

costs of such response actions from parties who are not

signatories to this Consent Decree or will seek funds to perform

such response actions from the Hazardous Substance Superfund, the

Stat e Hazardous Substance Response Fund as provided by CERCLA and

t he NCP, or any combination thereof which the United State s and

t he Stat e in their discretio n deem appropriate. Nothin g in this

Consent Decree, however, shall be interpreted as an affirmative

commitment by EPA or CDH to perform or obligate funds for any

response actions in contravention of any federal or state

statute, regulation , or administrative ruling or policy ,

including but not limited to , CERCLA, the NCP, or the AntiDeficienc y Act , 31 U.S.C . § 1341.

i. The United State s and the Stat e shall pay Asarco

t he amounts set forth in Sectio n XVIII of this Consent Decree.

j. The map attached as Appendix A depicts , and the

attached Asarco and Resurrection WAMPs list , OUs at the Sit e as

they have now been defined. Nothin g in this Consent Decree shall

prevent or prohibit EPA, afte r review and comment by CDH, from

redesignating or further dividin g the OUs at the Site . In the

event EPA redesignates or further divides OUs at the Site , Asarco

and Resurrection shall only be obligated to perform and pay for

26
Work in their respective Work Areas as originall y shown on the

map attached as Appendix A and as further described in the

attached WAMPs .

k. Nothin g in this Consent Decree addressing a

Responsible Settlin g Defendant' s commitment or obligation to

perform and pay for Work or to reimburse Future Response Costs

shall modif y the rights of such Responsible Settlin g Defendant as

set forth in Paragraph 77.

7. Compliance Wit h Applicabl e Law

A ll activities undertaken by a Responsible Settlin g

Defendan t pursuant to this Consent Decree shall be performed in

accordance with the requirements of all applicable federal and

state laws and regulations. The Responsible Settlin g Defendant

, must also comply with all applicable or relevant and appropriate

requirements of all Federal and State environmental laws as set

forth in the attached WAMP(s) and the ROD(s ) and/or their

respective SOWs issued in connection with the Work under this

Consent Decree. 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, 42 U.S.C .

§ 9621{e) , and Sectio n 300.5 of the NCP, 40 C.F.R . Section 300.5,

no permit shall be required for any portion of the Work conducted

entirely on-site. Where any portion of the Work requires a

federal or state permit or approval , the Responsible Settlin g

^ 27
Defendan t shall submit timel y and complete application s and take

all other actions necessary to obtain all such permit s or

approvals .

b. The Responsible Settlin g Defendan t may seek relief

under the provisions of Sectio n XX {Forc e Majeure ) of this

Consent Decree for any dela y in the performance of its Work

resulting from a failur e to obtain, or a delay in obtaining, any

permit required for its Work.

c. Thi s Consent Decree is not, and shall not be

construed to be, a permit issued pursuant to any federal or state

statute or regulation.

9. Notic e of Obligation s to Successors-in-Titl e

a. Withi n 15 days afte r the entry of this Consent

Decree, Asarco and Resurrection, individuall y and on behal f of

Res-Asarco, shall record with the Lake County Clerk and Recorder,

Lake County, Colorado, a Memorandum of this Consent Decree in the

form attached as Appendix J . Thi s Memorandum will: (i ) identif y

a ll properties owned by the Settlin g Defendant s within the Site ;

(ii ) briefl y describe the access obligations under this Consent

Decree; (iii ) reference other obligation s of the Parties under

this Consent Decree; and (iv ) reference the caption and docket

number of this action and where a copy of this Consent Decree may

be obtained. Thereafter , subject to the release of properties

from the encumbrances created by this Consent Decree, each deed,

title , or other instrument conveying an interest in propert y

within the Sit e owned by Asarco, Resurrection, and/or Res-Asarco,

28
W as appropriate, shall contain a notice statin g that such property

is subject to this Consent Decree and shall reference the

location of the recorded Memorandum of this Consent Decree and

any restrictions applicabl e to the property under this Consent

Decree.

b. If institutional controls are selected by EPA as

part of the response actions for an OU within the Site , within

thirty days after an Actio n Memorandum or ROD is issued selecting

such institutional controls, or within thirty days after the

conclusion of any formal dispute resolution proceedings with

respect to such Action Memorandum or ROD, whichever is later, the

Responsible Settlin g Defendant shall record a Notice or

Memorandum with the Lake County Clerk and Recorder, Lake County,

. Colorado, describing the properties or the specifi c portions

thereof that are affected by such institutional controls in a

form acceptable to EPA and CDH in sufficien t detail to give

notice of the terms of the institutional controls. Thereafter,

subject to the release of such properties from the encumbrances

created by this Consent Decree, each deed, title , or other

instrument conveying an interest in property owned by Asarco,

Resurrection, and/or Res-Asarco, as appropriate, shall contain a

notice stating that such properties are is subject to

institutional controls and shall reference the recorded location

of the Notic e or Memorandum.

c. The obligations of each Settlin g Defendant with

respect to (i) access under Section X (Access) and (ii )

^ 29
institutional controls , if applicable , shall be binding upon such

Settlin g Defendant , and on all persons who subsequently acquire

any interest in the propert y which is subject to such obligation s

or portion thereof (hereinafte r "Successors-in-Title") . Settlin g

Defendant: (s) and any Successors-in-Titl e shall , at least 30 days

prior to the conveyance of any interest in properties or portions

of properties subject to such obligations , give written notice of

this Consent Decree to the grantee and written notice to EPA and

t he Stat e of the proposed conveyance. The written notice shall

include 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 obligations of the Settlin g

Defendant(s ) under the Consent Decree, including their

obligations to provide or secure access pursuant to Sectio n X,

shall continue to be met by the Settlin g Defendant(s) . In

addition , if the United State s and the Stat e approve, 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 Sit e release or otherwise affec t

t he liabilit y of Settlin g Defendant s to comply with this Consent

Decree.

d. At any time after a ROD is issued for an OU within

a Responsible Settlin g Defendant' s Work Area, the properties or

specified portions of properties within such OU may be released,

in whole or in part , from the encumbrances that are created by

this Consent Decree if such properties are not and will not be

30
, needed for access, institutional controls , or implementatio n of

this Consent Decree. The release may be in a stipulatio n to be

file d with the Court or in such other form as may be agreed to by

the Parties or approved by the Court. The release shall be in a

form sufficien t to give constructive notice of its terms when

recorded in the real propert y records of Lake County, Colorado.

If either EPA or CDH does not agree that such properties should

be so released, the matter wil l be subject to dispute resolution

pursuant to Sectio n XXI of this Consent Decree. The United

State s and the Stat e reserve, notwithstanding such a release, all

authorities they may have under law to obtain access to, or to

restrict the use of, any property released from the obligations

imposed by this Consent Decree.

^ VI. PERFORMANCE OF THE WORK

10. Selectio n of Supervisin g Contractor.

a. All aspects of the Work to be performed by a

Responsible Settlin g Defendan t pursuant to Sections VI

(Performance of the Work) , VII (Additional Response Actions) ,

VIII (EPA Periodic Review) , and IX (Qualit y Assurance, Samplin g

and Data Analysis ) of this Consent Decree shall be under the

direction and supervision of its Supervising Contractor, the

selection of which shall be subject to disapproval by EPA after a

reasonable opportunit y for review and comment by CDH. Withi n 10

days after the lodging of this Consent Decree, each Responsible

Settlin g Defendan t shall notif y EPA and CDH in writing of the

name, title , and qualification s of any contractor proposed to be

^ 31
i ts Supervisin g Contractor. EPA wil l issue a notice of

disapproval or an authorizatio n to proceed. If at any time

thereafter a Responsible Settlin g Defendan t proposes to change

its Supervisin g Contractor, it shall give such notice to EPA and

C DH and must obtain an authorizatio n to proceed from EPA, afte r a

reasonable opportunit y for review and comment by CDH, before the

new Supervisin g Contractor performs , directs , or supervises any

Work under this Consent Decree.

b. If EPA disapproves a proposed Supervisin g

Contractor, EPA wil l notif y the Responsible Settlin g Defendan t in

writing. The Responsible Settlin g Defendan t shall submit to EPA

and CDH a list of contractors, includin g the qualification s of

each contractor, that would be acceptable to it 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. The Responsible

Settlin g Defendan t may select any contractor from that list that

is not disapproved and shall notif y EPA and CDH of the name of

t he contractor selected within 21 days of receipt of EPA's

authorization to proceed.

c. If EPA fail s to provide written notice of its

authorization to proceed or disapproval as provided in this

Paragraph and this failure prevents the Responsible Settlin g

Defendan t from meeting one or more deadlines in a pla n approved

by the EPA pursuant to this Consent Decree, the Responsible

32
Settlin g Defendan t may seek relief under the provisions of

Sectio n XX (Forc e Majeure ) hereof .

11. Performance of Response Action s in the Asarco Work

Area.

a. Subjec t to the terms of this Consent Decree,

Asarco shall undertake actions to respond to releases or

threatened releases of Waste Material within the Asarco Work Area

through a coordinated process in accordance with the attached

Asarco WAMP, CERCLA, and the NCP. The public will be afforded

all opportunities for public comment at the appropriate steps in

this process as required by CERCLA and the NCP. In accordance

with the Asarco WAMP, Asarco agrees to undertake certain portions

of these response actions upon its execution of this Consent

Decree.

b. Asarco shall complete the RIs pursuant to UAO, EPA

Docket No. CERCLA-VIII-91-19 , as amended. Asarco shall design,

conduct, an d complete the associated EE/CA(s ) and/or FS(s) i n

accordance with the attached Asarco WAMP, CERCLA, and the NCP.

The Lead Risk Reduction Program ("LRRP") , as described in the

attached Asarco WAMP, will be one of the remedial alternatives

which will be evaluated for OU9 (Residential Populated Areas) . Asarco shall identify , screen, and propose Performance Standards ,

including any applicable or relevant and appropriate requirements

as required by Sectio n 121(d ) of CERCLA, 42 U.S.C . § 9621(d) , and

in accordance with the requirements and schedule established in

t he Asarco WAMP. Afte r approving the relevant RI(s) , EE/CAs , an d

33
FS(s) , an d an y related reports , EPA , afte r providin g CDH a

reasonable opportunit y for review and comment on these documents,

wil l select the response action(s ) and Performance Standards and

issue Actio n Memorandum!a ) or ROD(s ) for OUs within the Asarco

Work Area.

c. Asarco shal l perform the Removal Action(s ) EPA

selects to implement the "Kids Firs t Program" as set forth in the

attached Asarco WAMP pursuant to Actio n Memoranda to be issued by

EPA. If the Removal Action(s ) completed as part of the Kids

Firs t Program is determined by EPA to be a final response

action(s) , a ROD or close-out report shall reflec t EPA's

determination that no further response action (excluding, if

applicable , any long-term maintenance) is necessary for the Work

performed.

d. If EPA selects the LRRP as the Remedial Actio n for

O U9 (Residential Populated Areas) , Asarco shall implement the

LRRP subject to the following:

i. The LRRP will be exclusively funded through

the trust fun d established pursuant to Paragraph 11.e.; and

ii. The amount of the trust fund to be used to

implement the LRRP shall in no event exceed the sum of (A) the

amount deposited pursuant to Paragraph ll.e.ii. , (B) any interest

or income thereon in accordance with the trust agreement

established pursuant to Paragraph ll.e.i. , and (C) any

modificatio n determined to be required pursuant to Paragraph

ll.e.iii. .

34
e. Asarco shall establish a trust fun d for the

purpose of fundin g the LRRP if it is selected as the Remedial

Actio n for OU9 (Residential Populated Areas) . If EPA does not

select the LRRP as the Remedial Action for OU9 (Residential

Populated Areas) , the trust fun d which exists at the time EPA

issues a ROD for OU9 (Residential Populated Areas) will be used

as a form of financial assurance under Section XIV (Assurance of

Abilit y to Complete Work) of this Consent Decree to finance such

Work.

i. The trust fund will be administered pursuant

to a trust agreement which addresses those terms outlined in

Appendix C and shall be in a form mutually acceptable to Asarco

and EPA.

ii. The trust fund will be funded as follows:

( A) Asarco shall deposit a lump-sum payment of

$8.6 million into an interest bearing escrow

account on June 1, 1994;

( B) Such escrow account shall be transferred into

the trust fund after execution of the trust

agreement referred to in Paragraph ll.e.i .

above; and

( C) Withi n thirty days after the issuance of a R OD for OU9 (Residential Populated Areas) , Asarco shall deposit such additional amount,

if any, as may be necessary to fund the LRRP

using the final 95% Power map referred to in Appendix C applyin g the procedures set forth

in Section 5 of Appendix C and the $15,000

per unit cost for soil remediation of any

remaining residences not addressed as part of

t he "Kids First Program."

iii. The amount of the trust fund is calculated

based on the assumptions set forth in Section 3 of Appendix C.

35
E PA reserves the right to require Asarco to deposi t additional

sums into the trust fun d if EPA determines that the trust fund is

inadequate to implemen t the LRRP due to the invalidit y of the

assumptions , taken together, set forth in Sectio n 3 of Appendix

C; provided, however, that in no event shall the amount expended

to implement the LRRP exceed the actual cost of removal and

replacement of residential soils in OU9 (Residential Populated

Areas) , excluding those residences addressed as part of the "Kids

Firs t Program," to a depth of 12 inches based on an action level

f or lead equal to or greater than 2,000 part s per millio n based

on the 0"-6" composite value and the final 95% Power map as set

forth in Appendix C.

iv. Asarco reserves the right to contest any

determination by EPA with respect to the trust fund pursuant to

Sectio n XXI (Dispute Resolution) of this Consent Decree.

f . Subjec t to the terms of Paragraph 77, Asarco: (i)

waives any challenge to any portion of an Action Memorandum or a

R OD which selects a response action within the Asarco Work Area

listed on Appendix E,- (ii ) Asarco reserves the right to challenge

any portion of an Action Memorandum or a ROD which selects a

response action within the Asarco Work Area which is not listed

on Appendix E; and (iii ) waives any challenge to those interim

response actions listed on Appendix I.

12. Performance of Response Action s in the Resurrection

Work Area.

a. Subjec t to the terms of this Consent Decree,

36
Resurrection shall undertake actions to respond to releases or

threatened releases of Waste Material from impounded tailings ,

waste rock, and alluvial channels within the Resurrection Work

Area through a coordinated process in accordance with the

attached Resurrection WAMP, CERCLA, an d the NCP. The public will

be afforded all opportunities for public comment at the

appropriate steps in thi s process as required by CERCLA and the

NCP. In accordance with the Resurrection WAMP, Resurrection

agrees to undertake portion s of these response actions upon its

execution of this Consent Decree.

b. Resurrection shall design, conduct, and complete

t he EE/CA(s ) and/or FS(s ) i n accordance with the attached

Resurrection WAMP, CERCLA, and the NCP. Resurrection shall

identify , screen, and propose the Performance Standards ,

including any applicable or relevant and appropriate requirements

as required by Sectio n 121(d ) of CERCLA, 42 U.S.C . § 9621(d) , and

in accordance with the requirements and schedule established in

t he Resurrection WAMP. Afte r approving the relevant EE/CA(s) , FS(s), and any related reports, EPA, after providing CDH a

reasonable opportunity for review and comment on these documents,

will select the response actions and Performance Standards , and

issue Action Memorandum (a) or ROD(s ) for OU(s) within the

Resurrection Work Area.

c. Subjec t to the terms of Paragraph 77,

Resurrection: (i) waives any challenge to any portion of an

Action Memorandum or a ROD which selects a response action within
t he Resurrection Work Area listed o n Appendix F; (ii )

Resurrection reserves the right to challenge any portion of an

Actio n Memorandum or a ROD which select s a response action within

t he Resurrection Work Area which is not listed on Appendix F; and

(iii ) waives any challenge to those interim response actions

listed o n Appendix I .

13. Remedial Design.

a. Each Responsible Settlin g Defendan t shall submit to

E PA and CDH work plan s for the design of Remedial Actions in its

Work Area in accordance with the schedules developed in

accordance with the attached WAMPs. The Remedial Design Work

Plan s shall provide for design of the remedies set forth in the

ROD(s ) in accordance with the relevant WAMP and, upon their

approval by EPA, shall be incorporated into and become

enforceable under this Consent Decree or administrative order

issued by EPA, as appropriate. The Remedial Design Work Plans

will include a Health an d Safet y Plan for field design activities

which conforms to the applicabl e Occupational Safet y and Health

Administratio n and EPA requirements including, but not limited

t o, 29 C.F.R . § 1910.120.

b. The Remedial Design Work Plans shall include plans

and schedules for implementatio n of all remedial design and predesign tasks identified in the relevant WAMP. In addition , each

Remedial Design Work Pla n shall include a schedule for completion

of the Remedial Actio n Work Plan .

c. Upon approval of a Remedial Design Work Plan by

38
SPA, after a reasonable opportunit y for review and comment by

CDH, and submittal of the Health and Safet y Plan for all field

activities to EPA and CDH, the Responsible Settlin g Defendant

shall implement the Remedial Design Work Plan. The Responsible

Settlin g Defendan t shall submit to EPA and CDH all plans ,

submittals and other deliverables required under that approved

Remedial Design Work Plan in accordance with the approved

schedule for review and approval pursuant to Section XII

(Submissions Requiring Agency Approval) . Unless otherwise

directed by EPA, the Responsible Settlin g Defendant shall not

commence further Remedial Design activities at the Work Area

prior to approval of the Remedial Design Work Plan governing

those activities.

d. The preliminary design submittal(s ) shall include,

at a minimum, the following: (1) design criteria; (2) results of

treatability studies; (3) results of additional field sampling

a n d pre-design work; (4) project delivery strategy; (5)

preliminary plans , drawings and sketches; (6) required

specification s in outline form; and (7) preliminary construction

schedule.

e. The intermediate design submittal(s) , if required

by EPA or if independently submitted by a Responsible Settlin g

Defendant , shall be a continuation and expansion of the

preliminary design. Any value engineering proposal s must be

identified and evaluated during this review.

f . The pre-final/final design submittal(s ) shall

39
include, at a minimum, the following : (1) final plan s and

specifications; ;2 ) Operatio n an d Maintenance Plan ; (3 )

Construction Qualit y Assurance Projec t Pla n (CQAPP) ; (4 ) Field

Samplin g Pla n (directed at measuring progress towards meeting

Performance Standards ) ,- an d (5) Contingency Plan . The CQAPP ,

which shall detai l the approach to qualit y assurance during

construction activities at the site, shall specif y a quality

assurance officia l ("QA Official") , independent of the respective

Supervisin g Contractors , to conduct a quality assurance program

during the construction phase of the project .

14. Remedial Action .

a. Withi n 60 days afte r the approval of each final

relevant design submittal , the Responsible Settlin g Defendan t

shall submit to EPA and CDH a work pla n for the performance of

the Remedial Action at the relevant OU within the Work Area.

Thi s Remedial Actio n Work Plan shall provide for construction of

the remedy, in accordance with the relevant WAMP, as set forth in

the design plan s and specification s in the approved final design

submittal. Upon its approval by EPA, afte r a reasonable

opportunit y for review and comment by CDH, the Remedial Action

Work Plan shall be incorporated into and become enforceable under

this Consent Decree or administrative order issued by EPA, as

appropriate. At the same time as the Responsible Settlin g

Defendan t submits the Remedial Action Work Plan , it shall submit

to EPA and CDH a Health and Safet y Plan for field activities

required by the Remedial Action Work Pla n which conforms to the

40
. applicabl e Occupational Safet y and Health Administratio n and EPA

requirements including, but not limited to, 29 C.F.R . § 1910.120.

b. Each Remedial Action Work Plan shall , at a

minimum, address the requirements in each relevant WAMP and/or

S OW and 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 as appropriate for the relevant OU(s) ; (6) methods for

satisfyin g permittin g requirements; (7) methodology for

implementation of the Operation and Maintenance Plan ; (8)

methodology for implementatio n of the Contingency Plan ;

^ (9) tentative formulatio n 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. Each Remedial Action Work

Plan also shall include a schedule for implementation of all

Remedial Action tasks identified in the final design submittal

and shall identif y the initial formulation of the Responsible

Settlin g Defendant' s Remedial Action Project Team (including, but

not limited to, the Supervising Contractors).

c. Upon approval of the Remedial Action Work Plan by

EPA, after a reasonable opportunity for review and comment by

CDH, the Responsible Settlin g Defendant shall implement the

activities required under the Remedial Action Work Plan. The

^ 41
Responsible Settlin g Defendan t shall submit to EPA and CDH all

plans , submittals , or other deliverables required under the

approved Remedial Actio n Work Pla n in accordance with the

approved schedule for review an d approval pursuant to Sectio n XII

(Submission s Requiring Agency Approval) . Unless otherwise

directed by EPA, no Responsible Settlin g Defendan t shall commence

physical on-site activities within the Work Area prior to

approval of the relevant Remedial Actio n Work Plans .

1 5. The Work performed by a Responsible Settlin g Defendan t

pursuant to this Consent Decree shall include the obligation to

achieve the relevant Performance Standards , as defined by and

pursuant to the applicabl e ROD, Actio n Memorandum, and relevant

WAMP or SOW .

1 6. The Responsible Settlin g Defendant s acknowledge and

agree that nothing in this Consent Decree, the WAMPs, any SOW , or

the Remedial Design or Remedial Action Work Plan(s ) constitutes a

warranty or representation of any kind by Plaintiff s that

compliance with the Work requirements set forth in either the

WAMPs or the Work Plans wil l achieve the Performance Standards .

Except as provided herein, a Responsible Settlin g Defendant' s

compliance with the Work requirements shall not foreclose

Plaintiff s from seeking compliance with all terms and conditions

of this Consent Decree, including, but not limited to, the

applicabl e Performance Standards .

1 7. Prior to any off-Sit e shipment of Waste Material from

the Sit e to an out-of-stat e waste management facility , a

42
Responsible Settlin g Defendan t shall provide written notificatio n

to the appropriate state environmental officia l in the receiving

facility' s state and to the EPA and CDH Projec t Coordinator of

such shipment of Waste Material . However, this notificatio n

requirement shall not appl y to any off-Sit e shipments when the

total volume of all such shipments will not exceed 10 cubic

yards.

a. The Responsible Settlin g Defendant shall include

in the written notificatio n the followin g information, where

available: (1) the name and location of the facilit y to which the

Waste Material is 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 Responsible Settlin g Defendant shall notif y

the state in which the planned receiving facilit y is located of

major changes in the shipment plan , such as a decision to ship

the Waste Material to another facilit y within the same state, or

to a facilit y in another state.

b. The identit y of the receiving facilit y and state

will be determined by the Responsible Settlin g Defendant

followin g the award of the contract for Remedial Action

construction. The Responsible Settlin g Defendant shall provide

the information required by Paragraph 17.a. as soon as

practicable after the award of the contract and before the Waste

Material is actuall y shipped.
18. Operation and Maintenance.

a. Asarco shal l perform or provide for Operation and

Maintenance to maintain the effectivenes s of all response actions

undertaken by Asarco pursuant to this Consent Decree in

accordance with CERCLA , the NCP, the Asarco WAMP, an d an y

relevant SOW.

b. Resurrection shall perform or provide for

Operation and Maintenance to maintain the effectivenes s of all

response actions undertaken by Resurrection pursuant to this

Consent Decree in accordance with CERCLA, the NCP, the

Resurrection WAMP, and any relevant SOW.

VII . ADDITIONA L RESPONS E ACTION S

19. In the event that EPA determines, or the Responsible

Settlin g Defendan t proposes , that additional response actions are

necessary to meet the Performance Standards or to carry out a

remedy selected in any ROD being implemented pursuant to this

Consent Decree for the Asarco Work Area or the Resurrection Work

Area, notificatio n of such additional response actions shall be

provided to the Projec t Coordinator(s ) for the other party(ies )

and to the State .

20. Withi n 30 days of receipt by a Responsible Settlin g

Defendan t of notice from EPA to a pursuant to Paragraph 19 that

additional response actions are necessary (or such longer time as

m ay be specified by EPA), such Responsible Settlin g Defendan t

shall submit a work pla n for the additional response actions for

approval by EPA, afte r reasonable opportunit y for review and

44
comment by CDH. The pla n shall conform to the applicable

requirements of Paragraphs 13 and 14. Upon approval of the plan

pursuant to Sectio n XII (Submission s Requiring Agency Approval) ,

t he Responsible Settlin g Defendan t shall implement the pla n for

additional response actions in accordance with the schedule

contained therein.

21. Any additional response actions that a Responsible

Settlin g Defendant proposes are necessary to meet the Performance

Standards or to carry out the remedy selected in the ROD shall be

subject to approval by EPA, after reasonable opportunity for

review and comment by CDH. If authorized by EPA, the Responsible

Settlin g Defendant shall complete such additional response

actions in accordance with plans , specifications , and schedules

, approved or established by EPA pursuant to Section XII

{Submissions Requiring Agency Approval) .

22. The Responsible Settlin g Defendant may invoke the

procedures set forth in Sectio n XXI {Dispute Resolution) to

dispute EPA' s determination that additional response actions are

necessary to meet the Performance Standards or to carry out the

relevant remedy selected in the ROD(s) . Such a dispute shall be

resolved pursuant to Paragraphs 74, 75, and 76.

VIII . EPA PERIODI C REVIEW

23. Each Responsible Settlin g Defendant shall conduct any

studies and investigations in its Work Area requested by EPA in

order to permit EPA to conduct reviews at least every five years

as required by Section 121{c ) of CERCLA, 42 U.S.C . § 9621(c) , and

^ 45
a ny applicabl e regulations .

2 4. If required by Section s 113(k)(2 ) or 117 of CERCLA, 42

U.S.C . § § 9613 (k ) (2 ) o r 9617, the State , Settlin g Defendant s an d

the public wil l be provided with an opportunit y to comment on any

further response actions proposed by EPA as a result of the

review conducted pursuant to Sectio n 121(c ) of CERCLA, 42 U.S.C .

§ 9621(c) , and to submit written comments for the record during

t he public comment period. Afte r the period for submission of

written comments is closed, the Regional Administrator, EPA

Region VIII, or his/her delegate will determine i n writing

whether further response actions are appropriate.

2 5. If the Regional Administrator, EPA Region VIII, or

his/her delegate determines that information received, in whole

or in part , during the review conducted pursuant to Sectio n

121(c ) of CERCLA, 42 U.S.C . § 9621{c) , indicates that an y

Remedial Action for a Responsible Settlin g Defendant' s Work Area

is not protective of human health and the environment, the

Responsible Settlin g Defendan t shall undertake any further

response actions EPA has determined, afte r reasonable opportunity

for review and comment by CDH, are appropriate for such Work Area

unless the Responsible Settlin g Defendant' s liabilit y for such

further response actions is barred by the Covenant Not to Sue set

forth i n Sectio n XXIII. The Responsible Settlin g Defendant shall

submit a pla n for such work to EPA for approval in accordance

with the procedures set forth in Sectio n VI (Performance of the

Work) and shall implement the plan approved by EPA. The

46
Responsible Settlin g Defendant may invoke the procedures set

forth i n Sectio n XXI (Dispute Resolution) to dispute: (1 ) EPA' s

determination that the Remedial Action is not protective of human

health an d the environment; (2) EPA' s selection of the further

response actions as arbitrary and capricious or otherwise not in

accordance with law; or (3) EPA' s determination that the

Responsible Settlin g Defendant' s liabilit y for the further

response actions requested is reserved from or otherwise not

barred by the Covenant Not to Sue set forth in Section XXIII.

I X . QUALIT Y ASSURANCE . SAMPLING , an d DATA ANALYSI S

2 6. The Responsible Settlin g Defendan t 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 Operator" {EPA QA/R5) ; "Preparing

Perfect Project Plans" (EPA/600/9-88-087) ; and amendments to such

guidelines upon notificatio n by EPA to the Responsible Settlin g

Defendant of such amendment(s) . Amended guidelines shall appl y

only to procedures conducted after such notification . Prior to

the commencement of any monitoring project under this Consent

Decree, the Responsible Settlin g Defendant shall submit to EPA

for approval, after a reasonable opportunity for review and

comment CDH, a Quality Assurance Project Plan ("QAPP" ) that is

consistent with the relevant WAMP, 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

Consent Decree. The Responsible Settlin g Defendan t shall ensure

that EPA and Stat e personnel and their authorized representatives

are allowed access at reasonable times to all laboratories

utilized by the Responsible Settlin g Defendant in implementing

this Consent Decree. In addition , each Responsible Settlin g

Defendan t shall ensure that such laboratories shall analyze all

samples submitted by EPA pursuant to the QAPP for quality

assurance monitoring. Each Responsible Settlin g Defendant shall

ensure that the laboratories they utilize for the analysis of

samples taken pursuant to this Consent Decree perform all

analyses according to accepted EPA methods. Accepted EPA methods

consist of those methods which are documented in the "Contract

L ab Program Statemen t of Work for Inorganic Analysis" and the

"Contract Lab Program Statemen t of Work for Organic Analysis,"

dated February 1988, and any amendments made thereto during the

course of the implementation of this Consent Decree. Each

Responsible Settlin g Defendan t shall ensure that all laboratories

it uses for analysis of samples taken pursuant to this Consent

Decree participate in an EPA or EPA-equivalent QA/QC program.

27. Upon request, the Responsible Settlin g Defendant shall

allow spli t or duplicate samples to be taken by EPA and CDH or -

their authorized representatives. Each Responsible Settlin g

Defendant shall notif y EPA and CDH not less than 28 days in

advance of any sample collection activity unless shorter notice

48
is agreed to by EPA. In addition , EPA and CDH shall have the

right to take any additional samples that EPA or CDH deems

necessary. Upon request, EPA and CDH shall allow the Responsible

Settlin g Defendant to take spli t or duplicate samples of any

samples it takes as part of the Plaintiffs oversight of the

Responsible Settlin g Defendant' s implementation of the Work.

2 8. The Responsible Settlin g Defendant shall submit to both

E PA and CDH two copies of the results of all sampling and/or

tests or other data obtained or generated by or on its behalf

with respect to the Sit e and/or the implementation of this

Consent Decree unless EPA and CDH agree otherwise.

29. Notwithstandin g any provision of this Consent Decree,

the United State s and the Stat e retain all of their information

gathering and inspection authorities and rights, including

enforcement actions related thereto, under CERCLA, and any other

applicable statutes or regulations.

X . ACCESS

30. Commencing upon the date of lodgin g of this Consent

Decree, Asarco and Resurrection, for themselves and for ResAsarco, agree to provide the United States , the State , and their

representatives, including EPA and its contractors, access at all

reasonable times to the Work Areas 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

those Settlin g Defendant s or any of them, for the purposes of

49
conducting any activit y related to this Consent Decree including,

but not limited to:

a. Monitorin g the Work;

b. Verifyin g any data or informatio n submitted to the

United States ;

c. Conducting investigations relatin g to

contamination at or near the Site ;

d. Obtaining samples;

e. Assessin g the need for , planning, or implementin g

additional response actions at or near the Site ;

f . Inspectin g an d copying records, operating logs ,

contracts, or other documents maintained or generated by the

Responsible Settlin g Defendan t or its agents, consistent with

Sectio n XXVI; an d

g. Assessin g a Responsible Settlin g Defendant' s

compliance with this Consent Decree.

31. To the extent that the property to which access is

required for the implementation of this Consent Decree is owned

or controlled by persons other than Settlin g Defendants , the

Responsible Settlin g Defendant shall use its best effort s to

secure from such persons access for the Responsible Settlin g

Defendant , as well as for the United State s and the State and

their representatives, including, but not limited to, their

contractors, as necessary to effectuat e this Consent Decree. For

purposes of this Paragraph, "best efforts " shall include payment

of reasonable sums of money to obtain access to any property

50
within the Sit e in the event that (i) rights-of-way , easements,

or other uses such as staging or storage areas are required with

respect to any propert y owned or controlled by persons other than

the Settlin g Defendant s for which access is necessary to perform

response actions, or (ii ) incidental or consequential damages are

incurred by third parties as a result of access; provided,

however, that in no event shall "best efforts " include payment of

money solely to obtain access to any residential property at the

Sit e for purposes of performin g response actions on such

property. If any access required to complete the Work is not

obtained 90 days prior to the date that any activity under the

relevant WAMPs, SOWs , or Remedial Action Work Plans is required,

or within 45 days of the date EPA notifies the Responsible

Settlin g Defendant in writing that additional access beyond that

previously secured is necessary, the Responsible Settlin g

Defendant shall promptl y notif y the United States , and shall

include in that notificatio n a summary of the steps it has taken

to attempt to obtain access. The United State s or the Stat e may,

as they deem appropriate, assist the Responsible Settlin g

Defendant in obtaining access. The Responsible Settlin g

Defendant shall reimburse the United States or the State , in

accordance with the procedures in Section XVII (Reimbursement of

Response Costs) , for all costs incurred by the United State s

and/or the State in obtaining access. The Responsible Settlin g

Defendant may seek relief under the provisions of Section XX

(Force Majeure) for any delay in the performance of the Work

51
resulting from a denial of access by a third party over which the

Responsible Settlin g Defendan t has no control.

3 2. Notwithstandin g any provision of this Consent Decree,

t he United State s and the Stat e retain all of their access

authorities and rights , includin g enforcement authorities related

thereto, under CERCLA, RCRA and any other applicable statute or

regulations.

X I . REPORTIN G REQUIREMENT S

33. In additio n to any other requirement of this Consent

Decree, the Responsible Settlin g Defendan t shall submit to EPA

and CDH two copies of writte n quarterly progress reports of

activities pursuant to thi s Consent Decree that: (a) describe the

actions which have been taken toward achieving compliance with

this Consent Decree during the previous quarter; (b) include a

summary of all results of sampling and tests and all other data

received or generated by the Responsible Settlin g Defendant or•

its contractors or agents in the previous quarter; (c) identif y

all work plans , plans and other deliverables required by this

Consent Decree completed and submitted during the previous

quarter; (d) describe all actions, including, but not limited to,

data collection and implementation of work plans , which are

scheduled for the next quarter 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 affec t the

52
future schedule for implementation of the Work, and a description

of effort s made to mitigate those delays or anticipated delays;

( f) include any modification s to the work plan s or other

schedules that the Responsible Settlin g Defendant has proposed to

E PA or that have been approved by EPA; and (g) describe all

activities undertaken in support of the Community Relations Plan

during the previous quarter and those to be undertaken in the

next quarter. The Responsible Settlin g Defendant shall submit

these quarterly progress reports to EPA and CDH by the 28th of

April , July , October, and January of every year followin g the

lodging of this Consent Decree until EPA notifie s it pursuant to

Paragraph 51.b. of Sectio n XV (Certificatio n of Completion) . If

requested by EPA or the State , the Responsible Settlin g Defendant

shall also provide briefings for EPA and CDK to discuss the

progress of the Work.

3 4. The Responsible Settlin g Defendant shall notif y EPA of

any change in the schedule described in the quarterly 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.

35. Upon the occurrence of any event during performance of

the Work that the Responsible Settlin g Defendant is required to

report pursuant to Section 103 of CERCLA, 42 U.S.C . § 9603, orSection 304 of the Emergency Planning and Community Right-to-Know

A ct (EPCRA), 42 U.S.C . § 11004, the Responsible Settlin g

Defendant shall within 24 hours of the onset of such event orally
notif y the EPA and CDH Projec t Coordinators or the Alternate EPA

and CDH Project Coordinator(s ) in the event of the unavailabilit y

of the EPA or CDH Projec t Coordinator(s) . If neither the EPA

Projec t Coordinator nor the Alternat e EPA Projec t Coordinator is

available, the Responsible Settlin g Defendan t shall notif y the

Emergency Response Section , EPA Region VIII. If neither the CDH

Projec t Coordinator nor the Alternate CDH Project Coordinator is

available, the Responsible Settlin g Defendan t shall notif y the

C DH Hotline . These reportin g requirements are in additio n to the

reporting required by CERCLA Sectio n 103, 42 U.S.C . § 9603, or

EPCRA Sectio n 304, 42 U.S.C . § 11004.

36. Withi n 20 days of the onset of such an event, the

Responsible Settlin g Defendan t shall furnish to EPA and CDH a

written report, signed by its Project Coordinator, settin g forth

the events which occurred and the measures taken, and to be

taken, in response thereto. Withi n 30 days of the conclusion of

such an event, the Responsible Settlin g Defendant shall submit a

report setting forth all actions taken in response thereto.

3 7. The Responsible Settlin g Defendant shall submit two

copies of all plans , reports, and data required by its WAMP,

Remedial Design Work Plan , Remedial Action Work Plan , or any

other approved plans or SOW, to EPA and CDH in accordance with

the schedules set forth in such plans.

54
38. All reports and other documents submitted by the

V — Responsible Settlin g Defendan t to EPA (other than the quarterly

progress reports referred to above) which purport to document

compliance with the terms of this Consent Decree shall be signed

by an authorized representative of the Responsible Settlin g

Defendant .

XII . SUBMISSION S REQUIRING AGENCY APPROVAL

39. 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 Responsible Settlin g Defendant modify the submission; or (e)

any combination of the above.

40. In the event of approval, approval upon conditions, or

modificatio n by EPA, pursuant to Paragraph 39(a) , 39(b) , or

39(c) , the Responsible Settlin g Defendant shall proceed to take

any action required by the plan , report, or other item, as

approved or modified by EPA subject only to the right to invoke

the Dispute Resolution procedures set forth in Section XXI

(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 39(c )

and the submission has a material defect , EPA retains its right

55
to seek stipulated penalties , as provided in Sectio n XXII.

a. Upon receipt of a notice of disapproval pursuant

to Paragraph 39(d) , the Responsible Settlin g Defendan t shall ,

within 15 days or such other time as specified by EPA in such

notice, correct the deficiencie s and resubmit the plan , report,

or other item for approval to EPA and CDH. Any stipulated

penalties applicable to the submission, as provided in Sectio n

XXII, shall not accrue unless and until the resubmission is

disapproved or modified due to a material defec t as provided in

Paragraph 42.

b. Notwithstandin g the receipt of a notice of

disapproval pursuant to Paragraph 39(d) , the Responsible Settlin g

Defendan t shall proceed, at the direction of EPA, to take any

action required by any non-deficient portion of the submission.

Implementatio n of any non-deficien t portion of a submission shall

not relieve the Responsible Settlin g Defendant of any liabilit y

f or stipulated penalties under Section XXII (Stipulated

Penalties) .

41. In the event that a resubmitted plan , report or other

item, or portion thereof , is disapproved by EPA, after reasonable

opportunity for review and comment by CDH, EPA may again require

the Responsible Settlin g Defendant to correct the deficiencies ,

in accordance with the preceding Paragraphs. EPA also retains

the right to amend or develop the plan , report or other item.

T he Responsible Settlin g Defendant shall implement any such plan,

report, or item as amended or developed by EPA, subject only to

56
the right to invoke the procedures set forth in Sectio n XXI

(Dispute Resolution).

42. If upon resubmission, a plan , report, or item is

disapproved or modified by EPA due to a material defect , the

Responsible Settlin g Defendan t shall be deemed to have failed to

submit such plan , report, or item timely and adequately unless it

invokes the dispute resolution procedures set forth in Section

X XI (Dispute Resolution) and EPA's action is overturned pursuant

to that Section. The provisions of Section XXI (Dispute

Resolution) an d Sectio n XXII (Stipulated Penalties ) shall govern

the implementation of the Work and accrual and payment of any

stipulated penalties during Dispute Resolution. I f EPA' s

disapproval or modificatio n is upheld, stipulated penalties shall

accrue for such violation from the date that the resubmission was

disapproved or modified.

43. All plans , reports, and other items required to be

submitted to EPA under this Consent Decree shall , upon approval

or modification by EPA, after reasonable opportunity for review

and comment by CDH, 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.

XIII . PROJECT COORDINATORS

44. Within 20 days of lodging this Consent Decree, Asarco,

Resurrection, CDH, and EPA will notif y each other, in writing, of

"
the name, address and telephon e number of their respective

designated Projec t Coordinators and Alternat e Projec t

Coordinators. If a Projec t Coordinator or Alternate Projec t

Coordinator initiall y designated is changed, the identit y of the

successor will be given to the other Parties at least five

working days before the changes occur, unless impracticable, but

in no event later than the actual day the change is made. A

Responsible Settlin g Defendant' s Project Coordinator shall be

subject to disapproval by EPA and shall have the technical

expertise sufficien t to adequately oversee all aspects of the

Work. A Responsible Settlin g Defendant' s Projec t Coordinator

shall not be an attorney for the Responsible Settlin g Defendant

in this matter. A Projec t Coordinator may assign other

representatives, including other contractors, to serve as Sit e

representatives for oversight of performance of daily operations

during remedial activities.

45. Plaintiff s may designate other representatives,

including, but not limited to, EPA and CDH employees, and federal

and Stat e contractors and consultants, to observe and monitor the

progress of any activity undertaken pursuant to this Consent

Decree. EPA' s Project Coordinator an d Alternate Project

Coordinator shall have the authority lawfull y vested in a

Remedial Project Manager (RPM ) or an On-Scene Coordinator (OSC )

by the National Contingency Plan, 40 C.F.R . Part 300. In

addition, EPA' s Project Coordinator or Alternate Projec t

Coordinator shall have authority, consistent with the National

53
Contingency Plan , to halt any Work required by this Consent

Decree and to take any necessary response action when they

determine that conditions at the Sit e 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 .

46. The EPA and CDH Project Coordinators will meet with

each Responsible Settlin g Defendant' s Project Coordinator, at a

minimum, on a monthly basis.

XIV. ASSURANCE OF ABILITY TO COMPLETE WORK

47. Prior to the entry of this Consent Decree, and annually

within 30 days of the notificatio n provided by EPA pursuant to

Paragraph 49, Asarco shall establish and maintain financial

security in an amount sufficien t to complete the Work under this

Consent Decree within the Asarco Work Area plus an additional

amount equal to any self-insured retention by Asarco pursuant to

Paragraph 66 in one or a combination of the followin g forms:

a. A surety bond guaranteeing performance of the

Work;

b. One or more irrevocable letters of credit;

c. A trust fund;

d. A guarantee to perform such Work by one or more

parent corporations or subsidiaries, or by one or more unrelated

corporations that have a substantial business relationship with

Asarco; or

e. A demonstration that Asarco satisfies the
requirements of 40 C.F.R . Part 264.143(f ) or any three of the

four followin g numbered requirements:

i. Either of the followin g two alternatives:

( A) (1 ) total liabilities/ne t worth equal to

1.5 or less (provided that the liabilities

shall include al l of Asarco' s environmental

liabilitie s for which assurance is given

using a financial test) , or (2) net income

plus depreciation, depletion , and

amortization minus $10 million/total

liabilities equal to or greater than 0.10; or

( B) a current bond rating for the company' s

most recent bond issue of AAA, AA, A, or BBB

as issued by Moody's .

ii. A ratio of current assets to current

liabilitie s equal to 1.25 or greater.

iii. Tangibl e net worth greater than the sum of

the response cost estimate and other

obligation s covered by a financial test plus

$10 million .

iv. Asset s located in the United State s amounting

to at least 90 percent of total assets or.at

least six times the sum of the response cost

estimate and any obligations covered by a financial test.

48. Prior to the entry of this Consent Decree, and annually

within 30 days of the notificatio n provided by EPA pursuant to

Paragraph 49, Resurrection shall establish and maintain financial

security in an amount sufficien t to complete the Work within the

Resurrection Work Area plus an additional amount equal to any

self-insured retention by Resurrection pursuant to Paragraph 63

in one or a combination of the followin g forms:

a. A surety bond guaranteeing performance of the

Work;

b. One or more irrevocable letters of credit;

c. A trust fund;

60
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

Resurrection; or

e. A demonstration that Resurrection satisfie s the

requirements of 40 C.F.R . Part 264.143(f ) or any three of the

four followin g numbered requirements:

i. Either of the followin g two alternatives:

( A) (1) total liabilities/ne t worth equal to

1.5 or less (provided that the liabilities

shall include all of Resurrection' s

environmental liabilities for which assurance

is given using a financial test) , or (ii) net

income plus depreciation, depletion , and

amortization minus $10 million/total

liabilities equal to or greater than 0.10; or

( B) a current bond rating for the company' s

most recent bond issue of AAA, AA, A, or BBB

as issued by Moody's .

ii. A ratio of current assets to current

liabilities equal to 1.25 or greater.

iii. Tangible net worth greater than the sum of

the response cost estimate and other

obligations covered by a financial test plus

$10 million.

iv. Asset s located in the United State s amounting

to at least 90 percent of total assets or at

least six times the sum of the response cost

estimate and any obligations covered by a financial test.

49. The amount of financial assurance to be provided by

each Responsible Settlin g Defendant shall be determined by EPA,

after a reasonable opportunity for notice and comment by CDH,

prior to the entry of this Consent Decree and thereafter on an

annual basis. EPA shall notif y the Responsible Settlin g

Defendant in writing of the amount of financial assurance
r •

required. Such amount shall include the total estimated cost of

a l l uncompleted Work within the Responsible Settlin g Defendant' s

Work Area, includin g an appropriate contingency. Asarco shall

not be obligated to provide separate financial assurances for

Work to be funded from the trust fun d established pursuant to

Paragraph ll.e. .

5 0. If a Responsible Settlin g Defendan t seeks to

demonstrate the abilit y to complete the Work through a guarantee

by a third party pursuant to Paragraph 47.d. or 48.d., it shall

demonstrate that the guarantor satisfie s the requirements of 40

C.F.R . Part 264.143(f) . I f a Responsible Settlin g Defendan t

seeks to demonstrate its abilit y to complete the Work by means of

the financial test or the corporate guarantee pursuant to

Paragraphs 47.d., 47.e., 48.d., or48.e., the Responsible

Settlin g Defendan t shall submit the information required by 40

C.F.R . Part 254.143(f ) annually, within 30 days of the

notificatio n by EPA pursuant to Paragraph 49. 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, the Responsible

Settlin g Defendan t shall , within 30 days of receipt of notice of

EPA's determination, obtain and present to EPA for approval one

of the other forms of financial assurance listed in Paragraphs

47.a., 47.b., or 47.c. (for Asarco) , and 48.a., 48.b., or 48.c.

(for Resurrection). A Responsible Settlin g Defendant' s inability

62
•» -

to demonstrate financial abilit y to complete the Work shall not

excuse its performance of any activities required under this

Consent Decree.

X V. CERTIFICATION OF COMPLETION

A. Withi n Asarco Work Area

5 1. Completio n of the Remedial Action

a. Withi n 90 days after Asarco concludes that all

Performance Standards for the Remedial Action for an OU within

its Work Area have been attained and the Remedial Action has been

full y performed, Asarco shall schedule and conduct a precertificatio n inspection to be attended by Asarco, EPA, and CDH.

I f , after the pre-certificatio n inspection, Asarco stil l believes

that the Remedial Action for such OU has been full y performed and

the Performance Standards for such OU have been attained, Asarco

shall submit a written report requesting certification to EPA for

approval, with a copy to CDH, pursuant to Section XII

(Submissions Requiring Agency Approval) within 30 days of the

inspection. In the report, a registered professional engineer

a nd Asarco' s Project Coordinator shall state that the Remedial

Action for the OU has been completed in ful l satisfactio n of the

requirements of the work plan(s ) approved pursuant to this

Consent Decree. The written report shall include as-built

drawings signed and stamped by a professional engineer. The

report shall contain the followin g statement, signed by a

responsible corporate official of Asarco or Asarco' s Project

Coordinator:

63
" To the best of my knowledge, afte r thorough

investigation , I certif y that the informatio n contained

in or accompanying this submission is true, accurate

and complete. I am aware that there are significan t

penalties for submittin g fals e information , including

t he possibilit y of fin e and imprisonment for knowing

violations."

I f , afte r completio n of the pre-certificatio n inspection an d

receipt and review of the written report, EPA, after reasonable

opportunit y to review and comment by CDH, determines that the

Remedial Action , or any portion thereof , required for the OU has

not been completed in accordance with this Consent Decree or that

the Performance Standards of the ROD for such OU have not been

achieved, EPA will notif y Asarco in writing of the activities

that must be undertaken to complete the Remedial Action and

achieve the Performance Standards for the OU. EPA will set forth

in the notice a schedule for performance of such activities

consistent with the Consent Decree and the Asarco WAMP or require

Asarco to submit a schedule to EPA for approval pursuant to

Sectio n XII (Submission s Requiring Agency Approval) . Asarco

shall perform all activities described in the notice in

accordance with the specification s and schedules established

pursuant to this Paragraph, subject to its right to invoke the

dispute resolution procedures set forth in Section XXI (Dispute

Resolution).

b. If EPA concludes, based on the initial or any

subsequent report requesting Certificatio n of Completio n and

after a reasonable opportunity for review and comment by CDH,

that the Remedial Action for the OU has been full y performed in

64
accordance with this Consent Decree and that the Performance

Standards have been achieved, EPA will so certif y in writing to

Asarco. This certificatio n shall constitute the Certificatio n of

Completion of the Remedial Action for the OU for purposes of this

Consent Decree, including, but not limited to, Sectio n XXIII

(Covenants Not to Sue by Plaintiffs) . The Certificatio n of

Completion of Remedial Action for the OU shall not affec t

Asarco' s other obligations under this Consent Decree, including

Section VII, VIII, or XVI , i f any, or relieve Asarco from an y

future liability , if any, for matters reserved from this Consent

Decree.

5 2. Completio n of the Work

a. Within 90 days after Asarco concludes that all

phases of Work for all OUs within the Asarco Work Area (including

O t M) have been full y performed, Asarco shall schedule and

conduct a pre-certification inspection to be attended by Asarco,

EPA, an d CDH. If , after the pre-certification inspection, Asarco

stil l believes that such Work has been full y performed, Asarco

shall submit a written report by a registered professional

engineer stating that such Work has been completed in ful l

satisfaction of the requirements of work plan(s ) approved

pursuant to this Consent Decree. The report shall contain the

followin g statement, signed by a responsible corporate official

of a Asarco or Asarco' s Project Coordinator:
" To the best of my knowledge, afte r thorough

investigation , I certif y that the informatio n contained

in or accompanying this submission is true, accurate

and complete. I am aware that there are significan t

penalties for submittin g fals e information , including

t he possibilit y of fin e and imprisonment for knowing

violations."

I f , afte r review of the written report , EPA, afte r reasonable

opportunit y for review and comment by CDH , determines that any

portion of such Work has not been completed in accordance with

this Consent Decree, EPA will notif y Asarco in writing of the

activities that must be undertaken to complete such Work. EPA

will set forth in the notice a schedule for performance of such

activities consistent with the Consent Decree and the Asarco WAMP

or require Asarco to submit a schedule to EPA for approval

pursuant to Sectio n XII (Submission s Requiring Agency Approval) . Asarco shall perform all activities described in the notice in

accordance with the specification s and schedules established

pursuant to this Paragraph, subject to its right to invoke the

dispute resolution procedures set forth in Sectio n XXI (Dispute

Resolution).

b. If EPA concludes, based on the initial or any

subsequent request for Certificatio n of Completio n of Work by

Asarco, and after a reasonable opportunity for review and comment

by CDH , that such Work has been full y performed in accordance

with this Consent Decree, EPA will so notif y Asarco in writing.

c. For purposes of Certificatio n of Completio n of

Work under this Paragraph 52, the O & M component of such Work

shall be considered full y performed upon the initiation of and

66
provision for O & M. Nothin g in this Paragraph shall affec t the

obligation of Asarco to perform or provide for 0 & M in

accordance with Paragraph 18.a..

B. Withi n Resurrection Work Area

5 3. Completio n of the Remedial Action

a. Withi n 90 days after Resurrection concludes that

all Performance Standards for the Remedial Action for an OU

within its Work Area have been attained and the Remedial Action

has been full y performed, Resurrection shall schedule and conduct

a pre-certificatio n inspection to be attended by Resurrection,

EPA, an d CDH. If , afte r the pre-certificatio n inspection,

Resurrection stil l believes that the Remedial Action for such OU

has been full y performed and the Performance Standards for such

OU have been attained, Resurrection shall submit a written report

requesting certificatio n to EPA for approval, with a copy to CDH,

pursuant to Section XII (Submissions Requiring Agency Approval)

within 30 days of the inspection. In the report, a registered

professional engineer and Resurrection' s Project Coordinator

shall state that the Remedial Action for the OU has been

completed in ful l satisfactio n of the requirements of the work

plan(s ) approved pursuant to this Consent Decree. The written

report shall include as-built drawings signed and stamped by a

professional engineer. The report shall contain the followin g

statement, signed by a responsible corporate official of

Resurrection or Resurrection' s Project Coordinator:
" To the best of my knowledge, afte r thorough

investigation , I certif y that the informatio n contained

in or accompanying this submission is true, accurate

and complete. I am aware that there are significan t

penalties for submittin g fals e information , including

t he possibilit y of fin e and imprisonment for knowing

violations."

I f , afte r completio n of the pre-certificatio n inspection an d

receipt and review of the written report , EPA, after reasonable

opportunit y to review and comment by CDH , determines that the

Remedial Action , or any portion thereof , required for the OU has

not been completed in accordance with this Consent Decree or that

the Performance Standards of the ROD for such OU have not been

achieved, EPA will notif y Resurrection in writing of the

activities that must be undertaken to complete the Remedial

Action and achieve the Performance Standards the OU. EPA will

set forth in the notice a schedule for performance of such

activities consistent with the Consent Decree and the

Resurrection WAMP or require Resurrection to submit a schedule to

E PA for approval pursuant to Sectio n XII (Submission s Requiring

Agency Approval) . Resurrection shall perform all activities

described in the notice in accordance with the specification s and

schedules established pursuant to this Paragraph, subject to its

right to invoke the dispute resolution procedures set forth in

Section XXI (Dispute Resolution).

b. If EPA concludes, based on the initial or any

subsequent report requesting Certificatio n of Completio n and

after a reasonable opportunity for review and comment by CDH ,

that the Remedial Action for the OU has been full y performed in

63
accordance with this Consent Decree and that the Performance

Standards have been achieved, EPA will so certif y in writing to

Resurrection. Thi s certificatio n shall constitute the

Certificatio n of Completio n of the Remedial Action for the OU for

purposes of this Consent Decree, including, but not limited to.

Section XXIII (Covenants Not to Sue by Plaintiffs) . The

Certificatio n of Completio n of the Remedial Action for the OU

shall not affec t Resurrection' s other obligations under this

Consent Decree, including Sectio n VII, VIII, or XVI, i f any, or

relieve Resurrection from any future liability , if any, for

matters reserved from this Consent Decree.

54. Completio n of the Work

a. Withi n 90 days after Resurrection concludes that

all phases of Work for all OUs within the Resurrection Work Area

(including O & M) have been full y performed, Resurrection shall

schedule and conduct a pre-certification inspection to be

attended by Resurrection, EPA, and CDH. If, after the precertificatio n inspection, Resurrection stil l believes that such

Work has been full y performed, Resurrection shall submit a

written report by a registered professional engineer stating that

such Work has been completed in ful l satisfaction of the

requirements of work plan(s ) approved pursuant to this Consent

Decree. The report shall contain the followin g statement, signed

by a responsible corporate official of a Resurrection or

Resurrection' s Project Coordinator:
" To the best of my knowledge, afte r thorough

investigation , I certif y that the informatio n contained

in or accompanying this submission is true, accurate

and complete. I am aware that there are significan t

penalties for submittin g fals e information , including

t he possibilit y of fin e and imprisonment for knowing

violations."

I f , afte r review of the written report, EPA, afte r reasonable

opportunit y for review and comment by CDH , determines that any

portion of such Work has not been completed in accordance with

this Consent Decree, EPA will notif y Resurrection in writing of

the activities that must be undertaken to complete the Work. EPA

wil l set forth in the notice a schedule for performance of such

activities consistent with the Consent Decree and the

Resurrection WAMP or require Resurrection to submit a schedule to

E PA for approval pursuant to Sectio n XII {Submission s Requiring

Agency Approval) . Resurrection shall perform all activities

described in the notice in accordance with the specification s and

schedules established pursuant to this Paragraph subject to its

right to invoke the dispute resolution procedures set forth in

Sectio n XXI (Dispute Resolution) .

b. If EPA concludes, based on the initial or any

subsequent request for Certificatio n of Completion of the Work by

Resurrection and after a reasonable opportunity for review and

comment by CDH, that such Work has been full y performed in

accordance with this Consent Decree, EPA will so notif y

Resurrection in writing.

c. For purposes of Certificatio n of Completio n of the

Work under this Paragraph 54, the O & M component of such Work

70
shall be considered full y performed upon the initiation of and

provision for 0 & M. Nothin g in this Paragraph shall affec t the

obligation of Resurrection to perform or provide for O t M in

accordance with Paragraph 18.b..

XVI . EMERGENCY RESPONS E

55. In the event of any action or occurrence during the

performance of the Work which causes or threatens a release of

Waste Material from a Work Area that constitutes an emergency

situation or may present an immediate threat to public health or

welfare or the environment, the Responsible Settlin g Defendant

shall , subject to this Paragraph 55, immediately take all

appropriate action to prevent, abate, or minimize such release or

threat of release, and shall immediately notif y the EPA and CDH

Project Coordinators, and, if either the EPA or CDH Project

Coordinators is unavailable, the EPA or CDH Alternate Project

Coordinator(s) . if neither a Project Coordinator nor Alternate

Project Coordinator is available, the Responsible Settlin g

Defendant shall notif y the EPA' s Emergency Response Unit , Region

VIII, or the CDH Emergency Hotline . The Responsible Settlin g

Defendant shall take such actions in consultation with EPA and

CDH Project Coordinators or other available authorized EPA and

C DH officers and in accordance with all applicable provisions of:

the Health and Safet y Plans, the Contingency Plans, and any other

applicable plans or documents developed pursuant to its WAMP or

a ny applicable SOW. In the event a Responsible Settlin g

Defendant fail s to take appropriate response action as required
by this Section , and EPA or CDH takes such action instead, the

Responsible Settlin g Defendan t shall reimburse EPA or CDH all

costs of the response action not inconsistent with the NCP

pursuant to Sectio n XVII (Reimbursement of Response Costs) .

56. Nothin g in the preceding Paragraph shall be deemed to

limit any authority of the United State s or the Stat e to take,

direct , or order all appropriate action or to 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 .

XVII . REIMBURSEMEN T OF RESPONS E COST S

57. Res-Asarco shall pay $7.4 millio n to the United State s

in reimbursement of Past Response Cost s as follows: $4.9 million

within thirty (30 ) days after the effective date of this Consent

Decree; and $2.5 millio n on or before January 31, 1995. Payment

shall be made by Electronic Funds Transfer ("EFT" or wire

transfer ) to the U.S . Department of Justic e lockbox bank,

referencing the CERCLA Number 08-29 and the U.S.A.O . fil e number

8530422, and in accordance with instructions provided by the

United State s to Res-Asarco upon execution of the Consent Decree.

Payments by EFT must be received at the U.S . D.O.J . lockbox bank

by 11:00 A.M. {Eastern Time ) to be credited on that day.

58. Res-Asarco shall pay $200,000.00 to the Stat e of

Colorado in reimbursement of the State' s Past Response Costs as

follows: $100,000.00 within thirty (30 ) days after the effective

date of this Consent Decree; and $100,000.00 on or before January

72
31, 1995. Payment shall be made in the form of a certified check

referencing the California Gulch Superfun d Site , Civil Action No.

83-C-2388 (D. Colo.) , Case No. LW-HW-HXEQ, payable to the

"Treasurer, Stat e of Colorado." Res-Asarco shall forward the

check(s ) to:

Offic e of the Attorney General CERCLA Litigatio n Unit Natural Resources Section

1525 Sherman Street , 5th Floor Denver, CO 80203 ATTN: Joe Montoya, Administrative Program Specialist .

Pursuant to Colo. Rev. Stat . §25-16-104.6, Past Response Costs

shall be credited to the General Fund of the State .

59. Neither Asarco nor Resurrection has any obligation to

pay the United State s or the State any Past Response Costs

separate from the obligation of Res-Asarco to pay Past Response

Costs pursuant to Paragraphs 57 and 58. Each Responsible

Settlin g Defendant will severally reimburse the United States and

t he State their Future Response Costs relating to: (i) such

Responsible Settlin g Defendant' s Work Area; (ii ) such Responsible

Settlin g Defendant' s obligation to perform Work under this

Consent Decree; and (iii ) such Responsible Settlin g Defendant' s

equitable share of costs which are of a general. Site-wide nature

and not solely allocable to an area or areas outside such

Responsible Settlin g Defendant' s Work Area. At the conclusion of

each calendar year, the United States will separately bill each

Responsible Settlin g Defendant for Future Response Costs incurred

and paid by the United States with regard to the Responsible
Settlin g Defendant' s Work Area in the preceding calendar year.

T he bil l will include a standard EPA Region cost summary, known

as a SCORES report , or its equivalent, and routine periodic

progress reports of EPA' s contractors. For general costs not

solel y allocable to a Responsible Settlin g Defendant' s Work Area,

the bil l will also include a worksheet indicating how such

general costs were allocated. The Stat e will separatel y bill

each Responsible Settlin g Defendan t at the conclusion of the

State' s fiscal year for Future Response Costs an d will include a

Stat e cost summary package equivalent to EPA's SCORES report and

monthly progress reports of any Stat e contractors. Each cost

summary shall include a summary of direct and indirect costs

incurred by the United State s and the Stat e and their contractors

on an annual basis. The Responsible Settlin g Defendant shall

make all payments within 30 days of its receipt of each bill

requiring payment, except as otherwise provided in Paragraph 60.

a. The Responsible Settlin g Defendan t shall make all

payments to the United State s required by this Paragraph in the

form of a certified check or checks made payable to "EPA

Hazardous Substance Superfund" and referencing CERCLA Number 08-

29 and DOJ Case Number 90-11-3-138. The Responsible Settlin g

Defendant shall forward the certified check(s ) to

Mellon Bank

E PA Region VII I Attn : Superfun d Accounting P.O. Box 360859M Pittsburgh, PA 15251

and shall send copies of the check(s ) to the United State s as

74
specified in Sectio n XXVII (Notice s and Submissions) and to:

^-/ Cost Recovery Program Manager, 8HWR-SR U.S. Environmental Protection Agency

9 99 18th Street , Suite 500 Denver, CO 80202.

b. The Responsible Settlin g Defendant shall make all

payments to the Stat e required by this Paragraph in the form of a

certified check or check(s ) made payable to the "Treasurer, State

of Colorado" and referencing the California Gulch Superfun d Site ,

Civil Action No. 83-C-2388 (D. Colo.) , Case No. LW-HW-HXEQ . The

Responsible Settlin g Defendan t shall forward the certified

check(s) to

Offic e of the Attorney General CERCLA Litigation Unit Natural Resources Section

1525 Sherman Street , 5th Floor Denver, CO 80203 Attn : Joe Montoya, Administrative Program

, Specialist .

Pursuant to Colo. Rev. Stat . § 25-16.104.6, Future Response Costs

shall be credited to the "Hazardous Substance Response Fund" of

t he State .

c. Payments of Future Response Costs pursuant to this

Paragraph 59, and any contest of such payments under Paragraph

60, shall be without prejudice to the Responsible Settlin g

Defendant' s right to seek recovery of such Future Response Costs

pursuant to Paragraph 77.e..

60. Res-Asarco may not contest the payment of Past Response

Costs. A Responsible Settlin g Defendant may contest the payment

of Future Response Costs only if such Responsible Settlin g

Defendant asserts: (a) that the United State s or the State has
made an accounting error; (b) that a cost item that is included

represents costs that were incurred inconsistent with the NCP;

( c) that a cost item is not a "Future Response Cost" as defined

in this Consent Decree, or (d) that EPA inequitably allocated a

share of general, Site-wide costs to such Responsible Settlin g

Defendant . Such objectio n shall be made in writing within 30

days of receipt of the bil l and must be sent to the United State s

( if the United States accounting is being disputed ) or the Stat e

( i f the State' s accounting i s being disputed ) pursuant to Section

XXVIII (Notice s an d Submissions) . An y such objectio n shall

specificall y identif y the contested response costs and the basis

f or objection . In the event of an objection , the Responsible

Settlin g Defendan t shall within the 30 day period pay all

uncontested Future Response Costs to the United State s or the

Stat e in the manner described in this Paragraph 60.

Simultaneously , the Responsible Settlin g Defendant shall

establish an interest bearing escrow account in a federally -

insured bank duly chartered in the Stat e of Colorado and remit to

that escrow account funds equivalent to the amount of the

contested Future Response Costs. The Responsible Settlin g

Defendan t shall send to the United State s or the State , as

provided in Section XXVIII (Notice s and Submissions) , 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 identit y of the bank and bank account

76
under which the escrow account is established as well as a bank

statement showing the initial balance of the escrow account.

Simultaneousl y with establishment of the escrow account, the

Responsible Settlin g Defendan t shall initiate the Dispute

Resolution procedures in Sectio n XXI (Dispute Resolution). If

the United State s or the Stat e prevails in the dispute, within 5

days of the resolution of the dispute, the Responsible Settlin g

Defendant shall pay the sums due (with accrued interest in the

escrow account) to the United State s or the State , as

appropriate, in the manner described in this Paragraph 60. If

t he Responsible Settlin g Defendan t prevails concerning any aspect

of the contested costs, the Responsible Settlin g Defendant shall

pay that portion of the costs for which it did not prevail (plus

associated accrued interest in the escrow account) to the United

States , or as appropriate the State , and any balance of the

escrow account shall be disbursed to the Responsible Settlin g

Defendant. The dispute resolution procedures set forth in this

Paragraph in conjunction with the procedures set forth in Section

X XI (Dispute Resolution) shall be the exclusive mechanisms for

resolving disputes regarding Settlin g Defendants obligation to

reimburse the United State s and the State for their Future

Response Costs under this Paragraph 60.

61. In the event that the payments required by Paragraph 59

are not made within 30 days of a Responsible Settlin g Defendant' s

receipt of the bill , the Responsible Settlin g Defendant shall pay

interest on the unpaid balance at the rate established pursuant

"
to Sectio n 107 (a) of CERCLA, 42 U.S.C . § 9607(a) , which shall

begin to accrue on the date of the Responsible Settlin g

Defendant' s receipt of the bill . Interes t shall accrue at the

rate specified through the date of the Responsible Settlin g

Defendant' s payment. Payments of interest made under this

Paragraph shall be in additio n to such other remedies, sanctions

or stipulated penaltie s available to Plaintiff s by virtue of a

Responsible Settlin g Defendant' s failure to make timel y payments

under this Section .

XVIII . PAYMENT S B Y TH E UNITED STATES AND TH E STAT E

6 2. The United State s on behal f of the Settlin g Federal

Agencies shall make the followin g payments:

a. Withi n thirt y (30 ) days of the effective date of

this Consent Decree, the United State s shall pay $6.1 million to

Asarco.

b. In addition to the payment made pursuant to

subparagraph (a) above, to the extent expenditures made by Asarco

to perform and/or implement the Work with respect to OU9

(Residential Populated Areas) , including without limitatio n any

amounts expended by the trust fund established by Asarco, and

Future Response Costs incurred with respect to OU9 (Residential

Populated Areas) exceed, in the aggregate, $23 million, the

United State s shall pay to Asarco fiftee n percent (15% ) of any

such expenditures and Future Response Costs between $23 Millio n

and $50 million.

63. All payments made pursuant to Paragraph 62 shall be in

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the form of a United State s Treasury check payable to Asarco or

by wire transfer to Asarco. Payments made pursuant to Paragraph

62.b. shall be made as follows: (i) with respect to expenditures

made by Asarco, periodicall y within thirty (30 ) days of demand by

Asarco; (ii ) with respect to Future Response Costs , annually

within thirty (30 ) days of the receipt by Asarco of each bill for

Future Response Costs submitted by the United State s with respect

to OU9 (Residential Populated Areas) pursuant to Section XVII

(Reimbursement of Response Costs ) of this Consent Decree.

64. No provision of this Consent Decree shall be

interpreted as or constitute a commitment or requirement that the

United States on behalf of the Settlin g Federal Agencies obligate

or pay funds in contravention of the Anti-Deficiency Act , 31

U.S.C . § 1341. Payments by the United State s are subject to the

availability of appropriated funds .

6 5. The State on behalf of the Settlin g State Agency shall

pay Asarco the sum of $271,250.00 within thirty (30 ) days of the

effective date of this Consent Decree. All payments made

pursuant to this Paragraph 65 shall be in the form of a check

drawn on the Treasury of the State of Colorado payable to Asarco

or by wire transfer to Asarco.

XIX . INDEMNIFICATION AN D INSURANC E

66. The United State s and the State do not assume any

liability by entering into this Consent Decree or by virtue of:

a n y designation of Responsible Settlin g Defendants as EPA' s

authorized representatives under Section 104(e ) of CERCLA, 42

79
U.S.C . § 9604 (e) . Each Responsible Settlin g Defendan t shall

indemnify , save and hold harmless the United States , the State ,

a n d 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, acts or

omissions of the Responsible Settlin g Defendant , it s officers ,

directors, employees , agents, contractors, subcontractors, and

any persons acting on its behal f or under its control, in

carrying out activities pursuant to this Consent Decree,

including, but not limited to, any claims arising from any

designation of the Responsible Settlin g Defendan t as EPA' s

authorized representatives under Sectio n 104(e ) of CERCLA, 42

U.S.C . § 9604(e) . Further, each Responsible Settlin g Defendan t

agrees to pay the United State s and the Stat e all costs they

incur including, but not limited to, attorneys fee s and other

expenses of litigatio n and settlement arising from, or on account

o f, claims made against the United State s based on acts or

omissions of the Responsible Settlin g Defendant , its officers ,

directors, employees, agents, contractors, subcontractors, and

any persons acting on its behalf or under its control, in

carrying out activities pursuant to this Consent Decree. Neither

the United State s nor the Stat e shall be held out as a party to

any contract entered into by or on behal f of a Responsible

Settlin g Defendan t in carrying out activities pursuant to this

Consent Decree. Neither the Responsible Settlin g Defendant nor

80
any such contractor shall be considered an agent of the United

State s or the State .

6 7. Each Responsible Settlin g Defendan t waives all claims

against the United State s and the State for damages or

reimbursement or for set-of f of any payments made or to be made

to the United State s or the State , arising from or on account of

any contract, agreement, or arrangement between such Responsible

Settlin g Defendant and any person for performance of Work on or

relating to its Work Area, including, but not limited to, claims

on account of construction delays. In addition, each Responsible

Settlin g Defendant shall indemnify and hold harmless the United

State s 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 such Responsible

Settlin g Defendant and any person for performance of Work on or

relating to its Work Area, including, but not limited to, claims

on account of construction delays.

6 8. Withi n thirty (30) days of signing this Consent Decree,

each Responsible Settlin g Defendan t shall secure, and shall

maintain until the firs t anniversary of EPA' s Certificatio n of

Completion of the Remedial Action pursuant to Paragraphs 51 (fo r

Asarco) or 53 (fo r Resurrection) of Section XV (Certificatio n of

Completion) comprehensive general liabilit y insurance and

automobile liabilit y insurance. The comprehensive general

liabilit y coverage shall have a minimum annual aggregate limit of

not less than ten million dollars , with up to the firs t two

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millio n self-insured b y the Responsible Settlin g Defendant . The

automobile insurance shall have minimum limit s of: Bodil y injury

liabilit y -- five hundred thousand for each person, one millio n

dollars each occurrence; property damage liabilit y -- five

hundred thousand dollars each occurrence. All insurance policies

shall name the United State s and the Stat e as additional

insureds. In addition , for the duration of this Consent Decree,

each Responsible Settlin g Defendan t shall satisfy , or shall

ensure that its contractors or subcontractors satisfy , all

applicable laws and regulation s regarding the provision of

worker' s compensation insurance for al l persons performin g the

Work on behalf of such Responsible Settlin g Defendant in

furtherance of this Consent Decree. Withi n thirty (30 ) days of

signing this Consent Decree, such Responsible Settlin g Defendan t

shall separatel y provide to EPA and the Stat e certificate s of

such insurance and a copy of each insurance policy . The

Responsible Settlin g Defendan t shall resubmit such certificates

and copies of policies each year on the anniversary of the

effectiv e date of this Consent Decree. If a Responsible Settlin g

Defendan t demonstrates by evidence satisfactor y to EPA and the

Stat e 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, the Responsible Settlin g Defendan t

need provide only that portion of the insurance described above

which is not maintained by the contractor or subcontractor.

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X X. FORCE MAJEURE

6 9. "Force majeure," for purposes of this Consent Decree,

is defined as any event arising from causes beyond the control of

a Responsible Settlin g Defendan t or of any entity controlled by a

Responsible Settlin g Defendant , including, but not limited to,

its contractors and subcontractors, that delays or prevents the

performance of any obligation under this Consent Decree despite

i ts best effort s to fulfil l the obligation. The requirement that

each Responsible Settlin g Defendant exercise "best effort s to

fulfil l the obligation" includes using best effort s to anticipate

any potential force majeure event and best effort s to address the

effect s of any potential force.majeure event (1) as it is

occurring and (2) followin g 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.

70. 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 Responsible Settlin g

Defendant shall notif y orally EPA' s Project Coordinator or, i n

his or her absence, EPA's Alternate Project Coordinator or, in

t he event both of EPA's designated representatives are

unavailable, the Director of the Hazardous Waste Management

Division, EPA Region VIII, within 48 hours of when the

Responsible Settlin g Defendant firs t knows or has reason to know

that the event might cause a delay. Within five days thereafter,

83
t he Responsible Settlin g Defendan t shall provide in writing to

E PA and CDH an explanatio n and descriptio n 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

implementatio n of any measures to be taken to prevent or mitigate

t he delay or the effec t of the delay ; the rationale of the

Responsible Settlin g Defendan t for attributin g such delay to a

force majeure event if it intends to assert such a claim; and a

statement as to whether, in the opinion of the Responsible

Settlin g Defendant , such event may cause or contribute to an

endangerment to public health, welfare or the environment. The

Responsible Settlin g Defendan t shall include with any such notice

a ll available documentation supportin g its claim that the delay

was attributable to a force majeure. Failure to comply with the

above requirements shall preclude the Responsible Settlin g

Defendant from asserting any claim of force majeure for that

event. The Responsible Settlin g Defendan t shall be deemed to

have notice of any circumstance of which its contractors or

subcontractors had or should have had notice.

7 1. If EPA, afte r a reasonable opportunity for review and

comment by CDH, 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 opportunit y for review and comment by CDH, for such

time as is necessary to complete those obligations. An extension

84
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 CDH, does not agree that

the delay or anticipated delay has been or will be caused by a

force majeure event, EPA will notif y the Responsible Settlin g

Defendant in writing of its decision. If EPA, after a reasonable

opportunity for review and comment by CDH, agrees that the delay

is attributable to a force majeure event, EPA will notif y the

Responsible Settlin g Defendan t in writing of the length of the

extension, if any, for performance of the obligations affected by

the force majeure event.

7 2. If the Responsible Settlin g Defendant elects to invoke

the dispute resolution procedures set forth in Section XXI

\^/ (Dispute Resolution) with respect to a force majeure decision, it

shall do so no later than 15 days after receipt of EPA's notice

pursuant to Paragraph 71. In any such proceeding, the

Responsible Settlin g Defendant 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 effort s were exercised to avoid and mitigate the effect s of

the delay, and that the Responsible Settlin g Defendant complied

with the requirements of Paragraphs 69 and 70, above. If the

Responsible Settlin g Defendant carries this burden, the delay at

W 85
issue shall be deemed not to be a violatio n by the Responsible

Settlin g Defendan t of the affecte d obligatio n of this Consent

Decree identified to EPA and the Court.

XXI . DISPUT E RESOLUTION

7 3. Unles s otherwise expressl y provided for in this Consent

Decree, the dispute resolution procedures of this Sectio n shall

be the exclusive mechanism to resolve disputes arising under or

with respect to this Consent Decree. However, the procedures set

forth in this Sectio n shall not appl y to actions by the United

States , or as applicabl e the State , to enforce the obligations of

a Settlin g Defendan t that have not been disputed in accordance

with this Section .

74. Any dispute which arises under or with respect to this

Consent Decree shall in the firs t 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 such period 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

party(ies ) a written notice entitled Notic e of Dispute.

75. 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 10 days afte r the conclusion of the informal

negotiation period, the Settlin g Defendant that is involved in

the dispute invokes the formal dispute resolution procedures of

86
this Sectio n by serving on the United States , with a copy to the

State , a written Statemen t of Position on the matter in dispute,

including, but not limited to, any factual data, analysis or

opinion supportin g that positio n and any supporting documentation

i t relies upon. The Settlin g Defendant' s Statement of Position

shall include a statement as to whether formal dispute resolution

should proceed under Paragraph 76 or 78.

b. Withi n fourteen (14 ) days after receipt of

Settlin g Defendant' s Statemen t of Position , EPA will serve on the

Settlin g Defendant , with a copy to the State , its Statemen t of

Position including, but not limited to, any factual data,

analysis, or opinion supportin g 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 76 or 78.

c. If there is disagreement between EPA and the

Settlin g Defendant which is involved in the dispute as to whether

dispute resolution should proceed under Paragraph 76 or 78, the

parties to the dispute shall follo w the procedures set forth in

the paragraph determined by EPA to be applicable. However, if

the Settlin g Defendant which is involved in the dispute

ultimately appeal s to the Court to resolve the dispute, the Court

shall determine which paragraph is applicable in accordance with

the standards of applicabilit y set forth in Paragraphs 76 and 78.

76. Formal dispute resolution for disputes between EPA and

a Responsible Settlin g Defendant pertaining to the adequacy of

87
any response action and all other dispute s that are accorded

review on the administrative record under applicabl e 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 appropriatenes s of plans ,

procedures to implement plans , or any other submissions requiring

approval by EPA under Sectio n XII this Consent Decree; an d (2)

the adequacy of the performance of response actions taken

pursuant to this Consent Decree. Except as specificall y

incorporated by reference in Paragraph 77, the procedures of this

Paragraph 76 shall not appl y to disputes concerning EPA' s

selection of a response action as set forth in a ROD.

a. An administrative record of the dispute shall be

maintained by EPA and shall contain all statements of position ,

including supportin g documentation, submitted pursuant to this

Section . Where appropriate , EPA may allow submission of

supplemental statements of positio n by the parties to the

dispute.

b. For the disputes between a Settlin g Defendant and

EPA, the Director of the Waste Management Division, EPA Region

VIII will issue a final administrative decision resolving the

dispute based on the administrative record described in Paragraph

76.a. Thi s decision shall be binding upon the Settlin g

Defendant , subject only to the right to seek judicial review

pursuant to Paragraph 76.c. and 76.d.

83
c. Any administrative decision made by EPA pursuant to

Paragraph 76.b. shall be reviewable by this Court, except as

otherwise provided by this Paragraph 76, provided that a notice

of judicial appeal is filed by the Settlin g Defendan t involved in

the dispute with the Court and served on EPA, CDH, and any other

party involved in the dispute within 10 days of receipt of EPA's

decision. The notice of judicial appeal shall include a

description of the matter in dispute, the effort s 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 State s may

fil e a response to the Settlin g Defendant' s notice of judicial

appeal .

d. In proceedings on any dispute between a Settlin g

Defendant and EPA governed by this Paragraph, the Settlin g

Defendant shall have the burden of demonstrating that the

decision of the Hazardous 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 76.a.

7 7. Disputes concerning EPA's selection of a response

action as set forth in a ROD shall be resolved in the

administrative and judicial review proceedings conducted pursuant

to the procedures set forth in this Paragraph 77. Nothing in

this Paragraph modifie s the waiver of liabilit y under Section

107(a ) of CERCLA, 42 U.S.C . § 107(a) , as set forth in Paragraph

89
6.a. (fo r Asarco ) or 6.b. (fo r Resurrection) .

a. The procedures of Paragraphs 74, 75, 76 (a), and

76(b ) shall appl y i n the firs t instance to dispute s concerning

a ny portion of a ROD. For purposes of Paragraph 74, a dispute

shall be considered to arise as of the date the Responsible

Settlin g Defendan t receives a copy of the ROD from EPA pursuant

to Paragraph 115.

b. If the Responsible Settlin g Defendan t prevails in

t he final administrative decision rendered pursuant to Paragraph

76.b. ( EPA wil l issue a new or amended ROD in accordance with

CERCLA and the NCP. EPA wil l send the Responsible Settlin g

Defendan t a copy of the new or amended ROD. The Responsible

Settlin g Defendan t may invoke the procedures of this Paragraph 77

with regard to the new or amended ROD.

c. If EPA prevails in the final administrative

decision rendered pursuant to Paragraph 76.b., the procedures set

forth in Paragraph 77.d. or Paragraph 77.e., whichever is

applicable , and Paragraph 76.d. , shall govern any subsequent

proceedings.

d. Thi s Paragraph 77.d. establishes the procedures

for judicial review of any portion of a ROD which selects a

response action listed on Appendix G (fo r Asarco) or Appendix H

{fo r Resurrection).

( i) The United State s and/or the Responsible

Settlin g Defendan t may seek judicial review of any portion of a

R OD disputed pursuant to the terms of this Paragraph 77.d.

90
immediately after the final administrative decision concerning

such a ROD is rendered pursuant to Paragraph 76.b. The Parties

agree not to contest the jurisdictio n of this Court in a

proceeding under this Paragraph 77.d.

(ii ) In order to commence such judicial review

proceedings, the party(ies ) shall fil e a notice of judicial

appeal with this Court within 20 days after service of EPA's

final administrative decision upon the Responsible Settlin g

Defendant . The notice of judicial appeal shall contain the

information described in Paragraph 76.c. If a join t notice of

judicial appeal is not filed , the party which file s the notice of

judicial appeal shall serve a copy of the notice of judicial

appeal on the other party to the dispute, with a copy to CDH. The party to the dispute not joinin g in the notice of judicial

o appeal may fil e a response within thirty days after receiving a

copy of the notice of judicial appeal.

(iii ) Unless the Court directs otherwise, within

forty-five days after the filin g of a notice of judicial appeal a

scheduling conference shall be held before a Special Master at

which time the issues in the proceedings will be identified and a

proposed schedule for the judicial review proceeding will be set.

(iv) Until a final judicial decision on the merits

of the disputed portion of the ROD is issued, the Responsible

Settlin g Defendant shall not be required to perform the disputed

response action and shall not be subject to stipulated penalties,

statutory penalties , liquidated damages, or treble damages for

91
failin g to perform such disputed response action.

( v) During the pendency of the judicial review

proceeding:

( A) The Responsible Settlin g Defendant ma y elect

to perform the disputed response action

without prejudic e to the Responsible Settlin g Defendant' s position in the judicial review

proceeding. I f the Responsible Settlin g Defendan t so elects , the Responsible Settlin g Defendan t shall state such election in the

notice of judicial appeal and shall then be

obligated to perform such disputed response

action during the pendency of the judicial

review proceeding under the terms of this

Consent Decree;

( B) EPA reserves the right to perform the

disputed response action and to seek to

recover the costs of performin g the disputed

response action under Section 107(a ) of

CERCLA, 42 U.S.C . § 9607(a) ; and

( C) Unless the disputed response action is being

performed pursuant to subparagraphs (A) or

( B) above, the Responsible Settlin g Defendant

shall perform, without challenge, those

interim response actions which address the

release or threatened release of Waste Material from the area(s) addressed by the

disputed response action and (i) which are

listed on Appendix I and (ii ) which EPA determines in an Action Memorandum or other

appropriate decision document under CERCLA or

the NCP to be necessary pending the

resolution of such dispute to address either

an imminent and substantial endangerment to

human health or the environment or to avoid

delaying other time critical response actions

at the Site . Such a decision by EPA shall

not be subject to dispute resolution

proceedings under this Sectio n XXI .

(vi ) For purposes of this Paragraph 77.d., a

judicial review proceeding shall include any subsequent appellate

court proceedings.

92
e. Thi s Paragraph 77. e. establishes the procedures for

judicial review of any portion of a ROD which selects a response

action not listed on Appendix E or G (for Asarco) , or which

selects a response action not listed on Appendix F or H (fo r

Resurrection) .

( i) Withi n twenty days after service of EPA' s

final administrative decision pursuant to Paragraph 76. b., the

Responsible Settlin g Defendan t shall notif y EPA in writing, with

a copy to CDH, whether the Responsible Settlin g Defendant will

comply with the final administrative decision and waive any

further challenge to the disputed portion of such ROD. If the

Responsible Settlin g Defendant notifies EPA that it will comply

with the final administrative decision and waives any further

challenge to the disputed portion of the ROD, the Responsible O '

 :

Settlin g Defendant shall then be obligated to perform the

response action which is the subject of the dispute under the

terms of this Consent Decree.

(ii) Unless the Responsible Settlin g Defendant

notifies EPA that it will comply with the final administrative

decision and waives any further challenge to the disputed portion

of such ROD within twenty days after service of EPA's final

administrative decision, EPA may exercise such authorities as the

United States may have under CERCLA, including:

( A) Seeking an order from this Court as provided

by Section 106 (a) of CERCLA, 42 U.S. C. §

9606 (a) , directing the Responsible Settlin g Defendant to implement the ROD;

93
( B) Issuin g the Responsible Settlin g Defendan t a unilateral administrative order as provided

by Sectio n 106(a ) of CERCLA, 42 U.S.C § 9606(a) , and, in the event the Responsible Settlin g Defendan t fail s or refuses to comply

with such administrative order, seeking any

penaltie s or damages as provided by Section s

106<b ) an d 107(c)(3 ) of CERCLA, 42 U.S.C . § §

9606(b ) an d 9607 (c ) (3) ; and/or

( C) Undertakin g the response action, either

before or afte r issuing the Responsible Settlin g Defendan t a unilateral

administrative order as provided by Sectio n

106(a ) of CERCLA, 42 U.S.C . § 9606(a) , an d

seeking cost recovery as provided by Sectio n

107(a ) of CERCLA, 42 U.S.C . § 9607(a) .

(iii ) The Responsible Settlin g Defendan t shall

have such rights and defense s as it may have under CERCLA in

response to the authority exercised by EPA or the United State s

described in the preceding Paragraph 77.e.(ii) , including:

( A) In a proceeding described in Paragraph

77.e.(ii)(A) , obtaining judicial review of

the selection or adequacy of the disputed

portion of the ROD as provided by Sectio n

113(h)(5 ) of CERCLA, 42 U.S.C . § 9613(h)(5) ;

( B) Determining whether to comply with a unilateral administrative unilateral order

described i n Paragraph 77.e.(ii ) (B), an d

either (l) obtaining judicial review of the

disputed portion of the ROD as provided by Sectio n 113(h)(2 } of CERCLA, 42 U.S.C . § 9613(h)(2 ) if and when the United State s

seeks to enforce such order, or (2)

submitting a petitio n for reimbursement as

provided by the requirements of Sectio n

106(b)(2 ) of CERCLA, 42 U.S.C . § 9606(b)(2) ,

to recover its costs of complying with such

order with judicial review of the disputed

portion of the ROD as provided by Sections

106(b)(2 ) an d 113(h)(3 ) of CERCLA, 42 U.S.C .

§ § 9606(b)(2 ) an d 9613(h){3) ; and/or

( C) In a proceeding described in Paragraph

77.e.(ii)(C) , obtaining judicial review of

the disputed portion of the ROD as provided

94
by Sectio n 113(h)(l ) of CERCLA, 42 U.S.C . § 9613(h)(1) .

(iv) A petitio n for reimbursement of costs of

complying with a unilateral administrative order referred to in

Paragraphs 77.e.(ii)(B ) and 77.e.(iii)(B ) shall not be denied on

the bases that: (A) the Parties have entered into this Consent

Decree; (B) this Consent Decree specificall y authorizes EPA to

exercise its statutory authorities in those circumstances

described above; or (C) the Responsible Settlin g Defendant has

consented to the issuance of such order and/or the performance of

any response actions by having entered into this Consent Decree.

EPA waives any defenses that it may have that such a petitio n for

reimbursement is barred on such bases.

78. Formal dispute resolution for disputes between a

Settlin g Defendant and EPA that do not pertain to the selection

or adequacy of any response action, or a ROD, and are not

otherwise accorded review on the administrative record under

applicable principles of administrative law shall be governed by

this Paragraph.

a. Followin g receipt of the Settlin g Defendant' s

Statement of Position submitted pursuant to Paragraph 75, the

Director of the Hazardous Waste Management Division, EPA Region

VIII, will issue a final decision resolving the dispute.

b. The Hazardous Waste Management Division Director' s

decision shall be binding on the Settlin g Defendant unless,

within 10 days of receipt of the decision, the Settlin g Defendant

file s with the Court and serve on the parties a notice of

95
judicial appeal settin g forth the matter i n dispute , the effort s

made by the parties to resolve it, the relie f requested, and the

schedule, if any, within which the dispute must be resolved to

ensure orderly implementatio n of the Consent Decree.

c. The United State s may fil e a response to the

Settlin g Defendants' s notice o f judicial appeal .

d. Judicial review of any dispute governed by this

Paragraph shall be governed by applicabl e provisions of law.

7 9. The invocation of formal dispute resolution procedures

under this Sectio n shal l not extend, postpone, or affec t in any

w ay any obligatio n of the Settlin g Defendant s under this Consent

Decree not directl y 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 89.

N ot withstanding the stay of payment, stipulated penalties shall

accrue from the firs t day of noncompliance with any applicable

provision of the Consent Decree. In the event that the Settlin g

Defendan t involved in the dispute does not prevail on the

disputed issue, stipulated penalties shall be assessed and paid

as provided in Sectio n XXII (Stipulated Penalties) .

8 0. The time periods for filin g a notice of judicial appeal

under this Sectio n XXI may be modified by the written agreement

of the parties to the dispute to accommodate a mutually agreed

upon form of alternative dispute resolution.

81. Any dispute between the United State s and the Stat e

96
shall be resolved in accordance wich the Dispute Resolution

provisions in the November 26, 1990, Superfun d Memorandum of

Agreement between EPA and the State .

XXII . STIPULATE D PENALTIE S

82. A Responsible Settlin g Defendan t shall be liable to the

United State s for stipulated penalties in the amounts set forth

in Paragraphs 83 and 84 for failure to comply with the

requirements of this Consent Decree as specified in Paragraphs

83.b. and 84.b., unless excused under Sectio n XX (Forc e Majeure) .

"Compliance" by the Responsible Settlin g Defendan t shall include

completion of the activities under this Consent Decree or any

work plan or other plan approved under this Consent Decree, the

Asarco WAMP, the Resurrection WAMP, 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.

8 3. The followin g Tier I stipulated penalties shall be

payable per violation per day to the United State s for any

noncompliance identified in Paragraph 83.b.:

a. Tier I Amounts

Penalt y Per Violatio n Per Day Period of Noneompliance

$ 1,000 1st through 15th day

$ 5,000 16th through 30th day

$10,000 31st day and beyond

b. Tier I Violation s

i. Failure to begin or complete feasibilit y

97
study activities on the dates specified in

t he Feasibilit y Stud y Work Plan ;

i i. Failur e to begin or complete remedial design

activitie s on the dates specified in the Remedial Design Work Plan ;

iii. Failur e to begin or complete remedial

activities on the dates specified in the Remedial Actio n Work Plan ;

iv. Failur e to pay response costs as described in Sectio n XVII (Reimbursement of Response

Costs) ;

v. Failur e to follo w the approved Standard Operatin g Procedures (SOP) in samplin g or

reportin g samplin g data;

vi. Failur e to perform additional or further work

as provided in Sectio n VII (Additional Response Actions ) or Sectio n VIII (EPA Periodic Review);

viii. Failure to provide access to the United States , the State , or their authorized

representatives to property owned or

controlled by a Settlin g Defendant; and

ix. Failure to begin or complete interim response

activities on the dates specified in the

EE/CA Work Plan or Kids Firs t Interim Response Actio n Work Plan (Asarco only) .

8 4. The followin g Tie r II stipulated penalties shall be

payable per violatio n per day to the United State s for any

noncompliance identified in Paragraph 84.b.:

a. Tier II Amounts

Penalty Per Violatio n Per Day Period of Noncomoliance

$ 500 1st through 15th day

$ 1,000 16th through 30th day

$ 5,000 31st day and beyond

98
V^ b. Tier II Violation s

i. Failure to submit a timel y or adequate Feasibilit y Stud y Work Plan or Feasibilit y Study ;

ii. Failure to submit a timel y or adequate Remedial Design Work Plan or Remedial Action Work Plan ;

iii. Failur e to submit timely or adequate

deliverables as specified in the Remedial Design Work Plan and the Remedial Action Plan ;

iv. Failure to submit a timely or adequate Health

a n d Safet y Plan ;

v. Failur e to submit timel y or adequate EE/CA Work Plan s or Kids Firs t Interim Response Action Work Plan (Asarco only) ;

vi. Failure to submit or maintain timely or

adequate notificatio n of Financial Assurance

as provided in Section XIV (Assurance of Abilit y to Complete Work) ; and

vii. Failure to maintain insurance or worker' s

compensation coverage as provided in Section XVII I (Indemnificatio n an d Insurance).

85. All penaltie s 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.

Nothin g herein shall prevent the simultaneous accrual of separate

penalties for separate violation s of this Consent Decree

specified in Paragraph 83.b. and 84.b.. In the event EPA assumes

performance of all or any portion of the Work pursuant to

Paragraph 99, the Responsible Settlin g Defendan t shall pay a lump

sum stipulated penalt y in the amount of $500,000.00, or three

times the cost of the work performed by EPA, whichever is less.

^

99
8 6. Followin g EPA' s determination that a Responsible

Settlin g Defendan t has failed to comply with a requirement of

this Consent Decree specified in Paragraphs 83.b. or 84.b., EPA

m ay give the Responsible Settlin g Defendan t written notificatio n

of the same and describe the noncompliance. EPA may send the

Responsible Settlin g Defendan t 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

t he Responsible Settlin g Defendan t of a violation.

87. All penaltie s owed to the United State s under this

Sectio n shall be due and payable within 30 days of the

Responsible Settlin g Defendant' s receipt from EPA of a demand for

payment of the penalties , unless the Responsible Settlin g

Defendan t invokes the Dispute Resolution procedures under Section

X XI (Dispute Resolution).

a. All payments under this Sectio n for Tier I violations

shall be paid by certified check made payable to "EPA Hazardous

Substances Superfund, " shall be mailed to:

Mello n Bank E PA Region VIII Attn : Superfun d Accounting P.O. Box 360859M Pittsburgh, PA 15251

and shall reference CERCLA Number 08-29 and DOJ Case Number 90-

11-3-138. Copies of check(s ) paid pursuant to this Section , and

any accompanying transmittal letter(s) , shall be sent to the

United State s as provided in Sectio n XXVIII (Notice s and

Submissions).

100
b. All payments under this Sectio n for the followin g Tier

II violations shal l be made in accordance with Paragraph 87.a.:

failure to submit a timel y or adequate Feasibilit y Stud y Work

Plan , Remedial Design Work Plan , Remedial Action Work Plan , or

EE/CA Work Plan . Al l other payments under this Sectio n for Tier

II violations shall be paid to an interest-bearing escrow

account. The balance the escrow account shall be returned to the

Responsible Settlin g Defendan t i f timely final compliance with

the ROD, SOW or other governing document is achieved.

88. The payment of penalties shall not alter in any way the

Responsible Settlin g Defendant' s obligation to complete the

performance of the Work required under this Consent Decree.

89. Penalties shall continue to accrue as provided in

Paragraph 85 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 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 State s prevails in whole or in part , the Responsible

Settlin g Defendan t involved in the dispute shall pay all accrued

penalties determined by the Court to be owed to EPA within 60

days of receipt of the Court' s decision or order, except as

provided in Paragraph 89.c.;

c. If the District Court' s decision is appealed by any

101
Party, the Responsible Settlin g Defendan t involved in the dispute

shall pay all accrued penalties determined by the District Court

to be owing to the United State s 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. Withi n 15 days of

receipt of the final appellat e court decision, the escrow agent

shall pay the balance of the account to EPA or to the Responsible

Settlin g Defendan t to the extent that each prevails.

9 0. a. If the Responsible Settlin g Defendant involved in

the dispute fail s to pay stipulated penalties when due, the

United State s may institute proceedings to collect the penalties ,

as well as interest. The Responsible Settlin g Defendant shall

pay interest on the unpaid balance, which shall begin to accrue

on the date of demand made pursuant to Paragraph 86 at the rate

established pursuant to Section 107(a ) of CERCLA, 42 U.S.C .

§ 9607.

b. Nothin g in this Consent Decree shall be construed

as prohibiting, altering, or in any way limiting the ability of

the United State s to seek any other remedies or sanctions

available by virtue of a Responsible Settlin g Defendant' s

violation of this Consent Decree or of the statutes and

regulations upon which it is based, including, but not limited

t o, penalties pursuant to Sectio n 122(1 ) of CERCLA, 42 U.S.C . §

9622(1 ) .

91. EPA may in its unreviewable discretion impose a lesser

102
penalt y or no penalt y at all for violation s subject to stipulated

penalties under this Section . Payments made under this Sectio n

shall be tax deductibl e for federal or state tax purposes to the

extent allowed by the relevant tax laws.

XXIII . COVENANT S NOT T O SU E B Y PLAINTIFF S

9 2. Covenants to the Settlin g Defendants . In consideration

of the Work that wil l be performed by Asarco and Resurrection and

the payments that wil l be made by Settlin g Defendant s under the

terms of this Consent Decree, and except as specificall y provided

in Paragraphs 94, 95, 56 and 98, the United State s and the Stat e

covenant not to sue, and EPA covenants not to take administrative

action against, Settlin g Defendants , pursuant to Section s 106 and

107(a ) of CERCLA, 42 U.S.C . §§ 9606 and 9607(a) , and Section 7003

of RCRA, 42 U.S.C . § 6973 for the Site , and the Stat e covenants

not to sue Settlin g Defendant s under Sectio n 7002 of RCRA, 42

U.S.C . § 6972, to take effec t as follows:

a. As to Asarco, these covenants shall take effec t

f or all portions of the Sit e outside the Asarco Work Area and for

Deep Ground Waters upon the receipt by the United State s of the

firs t payment required by Paragraph 57 and upon the receipt by

the Stat e of the firs t payment required by Paragraph 58.

b. As to Resurrection, these covenants shall take

effec t for all portions of the Sit e not within the Resurrection

Work Area and for Deep Ground Waters upon the receipt by the

United State s of the firs t payment required by Paragraph 57 and

upon the receipt by the Stat e of the firs t payment required by

103
Paragraph 58.

c. As to Res-Asarco, these covenants shall take

effec t upon the receipt by the United State s of the firs t payment

required by Paragraph 57 and upon the receipt by the Stat e of the

firs t payment required by Paragraph 58.

d. With respect to (i) Asarco' s liabilit y to perform

or pay for response actions for each OU within the Asarco Work

Area, and (ii ) Resurrection' s liabilit y to perform or pay

response actions for each OU within the Resurrection Work Area,

t he covenants shall take effec t Aipon Certificatio n of Completio n

of Remedial Action for each relevant OU.

e. These covenants extend only to Settlin g

Defendants , and do not extend to any other person or entity.

93. Covenants to the Settlin g Federal Agencies and the

Settlin g Stat e Agency. _

a. In consideration of th& payment that will be made

by the Settlin g Stat e Agency under the terms of this Consent

Decree, and except as specificall y provided in Paragraphs 96 and

98, the United State s covenants not to sue, and EPA covenants not

to take administrative action against, the Settlin g State Agency

f or all portions of the Sit e pursuant to Sections 106 and 107(a )

of CERCLA, 42 U.S.C . §§ 9^606 and 9607(a) , and Sectio n 7003 of

RCRA, 42 U.S.C . § 6973, to take effec t upon the receipt by Asarco

of the payment required by Paragraph 65.

b. In consideration of the payment that will be made

by the Settlin g Federal Agencies under the terms of this Consent

104
Decree, and except as specificall y provided in Paragraphs 96 and

98, the Stat e covenants not to sue, and EPA covenants not to take

administrative action against, the Settlin g Federal Agencies for

a ll portions of the Sit e except OU2 (Malta Gulch ) pursuant to

Section s 106 and 107(a ) of CERCLA, 42 U.S.C . §§ 9606 and 9607{a) ,

a nd Sectio n 7003 of RCRA, 42 U.S.C . § 6973, to take effec t upon

the receipt by Asarco of the payments required by Paragraph 62.

c. These covenants extend only to the Settlin g Stat e

Agency and the Settlin g Federal Agencies, and do not extend to

any other person or entity .

9 4. United States Pre-certificatio n reservations. The

United State s 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 a Responsible Settlin g Defendant (1) to perform further

response actions to effec t Source Remediation within an OU in its

respective Work Areas or (2) to reimburse the United State s for

additional costs of response action(s ) to effec t Source

Remediation within such OU, if, prior to Certificatio n of

Completio n of the Remedial Action for the such OU:

( i) conditions within such OU 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

105
f ,

Action for such OU is not protective of human health or the

environment.

9 5. United States Post-certificatio n reservations. The

United State s reserves, and this Consent Decree is without

prejudic e to, the right to institute proceedings in this action

or in a new action, or to issue an administrative order seeking

to compel a Responsible Settlin g Defendant' s Work Area (1) to

perform further response actions to effec t Source Remediation

within an OU in its Work Area or (2) to reimburse the United

State s for additional costs of response action(s ) to effec t

Source Remediation within such OU, if, after Certificatio n of

Completion of the Remedial Action for such OU:

( i) conditions within such OU, 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 within such OU is not protective of human health

or the environment.

96. Reservation for Deep Ground Waters

a. The United State s and the Stat e reserve the right

to institute proceedings in this action or in a new action

against, and EPA reserves the right to issue an administrative

order seeking to compel , Settlin g Defendants , the Settlin g

Federal Agencies, or the Settlin g State Agency to: (1) perform

106
response actions related to Deep Ground Waters , or (2) to

reimburse the United State s for additional costs of response

actions relatin g to the Deep Ground Waters , if , afte r the entry

of this Consent Decree,

( i) conditions 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 informatio n indicates that response

actions must be performed for Deep Ground Waters to protect human

health or the environment.

b. Settlin g Defendants , the Settlin g Federal

Agencies, and the Settlin g Stat e Agency each reserve all defenses

they may have to any such proceedings or administrative order,

including the defense of nonliability .

c. The division of the Sit e into Work Areas as shown

on Appendix A, and any allocatio n of liabilit y as set forth in

this Consent Decree, shall not appl y to any future proceedings or

administrative order, if any, relating to Deep Ground Waters .

97. For purposes of Paragraph 94, the information and the

conditions known to EPA shall include only that information and

those conditions set forth in the ROD(s ) for the OUs within the

respective Work Areas and the administrative record supportin g

t he ROD(s) . For purposes of Paragraph 95, the informatio n and

the conditions known to EPA shall include only that information

107
and those conditions set forth in the ROD(s ) for the OUs within

t he respective Work Areas , the administrative record supporting

the ROD(s) , and any informatio n received by EPA pursuant to the

requirements of thi s Consent Decree prior to Certificatio n of

Completio n of Remedial Actio n for the OUs within the respective

Work Areas. For purposes of Paragraph 95, "conditions within

such OU, previously unknown to EPA" or "information previously

unknown to EPA," does not include a change in land use or zoning

which occurs after the Certificatio n of Completion of Remedial

Action for an OU within the respective Work Areas. For purposes

of Paragraph 96, the information and conditions known to EPA

shall include only that information and those conditions set

forth in EPA' s administrative record for the Sit e as of Jul y 15,

1993.

98. General reservations of rights.

a. Reservations Against Asarco and Resurrection. The

covenants not to sue set forth above do not pertain to any

matters other than those expressly specified in Paragraph 92.

T he United State s and the Stat e reserve, and this Consent Decree

is without prejudice to, all rights against Asarco and

Resurrection with respect to all other matters, including but not

limited to, the following:

( 1) claims based on the failure to meet a

requirement of this Consent Decree;

( 2) liabilit y arising from the past , present, or

future disposal , release, or threat of release of Waste

108
Material outside of the Site ;

' 3 ) liabilit y fo r damages fo r injur y to ,

destructio n of, or los s of natural resources, or the costs

of assessment thereof ;

( 4 ) criminal liability ;

( 5) liabilit y for violations of federal or state

law which occur during or after implementation of the Work;

( 6) liabilit y for response actions addressing

geographic areas excluded from the Sit e under this Consent

Decree;

( 7) liabilit y for the Yak Tunnel OU and for

response actions addressing releases from the Yak Tunnel

including releases to Deep Ground Waters;

( 8) liabilit y for response actions addressing

Site-wide Surfac e and Ground Waters subject to the terms of

Paragraph e.c.ii. of this Consent Decree; and

( 9) liabilit y for response actions addressing the

movement of Wast e Material in those circumstances referred

to in Paragraph 6.d. of this Consent Decree.

b. Reservations Agains t Res-Asarco. The covenants

not to sue Res-Asarco set forth above do not pertain to any

matters other than those expressl y specified in Paragraph 92.

T he United State s and the Stat e reserve, and this Consent Decree

is without prejudic e to, all rights against Res-Asarco with

respect to all other matters , including, but not limited to, the

following:

109
( 1) liabilit y arising from the past , present, or

future disposal , release, or threat of release of Waste

Material outside of the Site ;

( 2) liabilit y fo r damages fo r injur y to ,

destruction of, or loss of natural resources, or the costs

of assessment thereof ,-

( 3 ) criminal liability ;

( 4) liabilit y for response actions addressing

geographic areas excluded from the Sit e under this Consent

Decree;

( 5) liabilit y for response actions addressing

Site-wide Surfac e and Ground Waters subject to the terms of

Paragraph 6.c.ii.; and

( 6) liabilit y for the Yak Tunnel OU and for

response actions addressing releases from the Yak Tunnel

including releases to Deep Ground Waters.

c. Reservations Against the Settlin g Federal Agencies.

The covenants not to sue set forth above do not pertain to any

matters other than those expressly specified in Paragraph 93.

The Stat e and EPA reserve, and this Consent Decree is without

prejudice to, all rights against the Settlin g Federal Agencies

with respect to all other matters, including but not limited to,

t he following:

( 1) claims based upon their failure to meet a

requirement of this Consent Decree;

( 2) liabilit y arising from the past , present, or

110
future disposal , release, or threat of release of Waste

Material outside of the Site ;

( 3) liabilit y fo r damages fo r injury to ,

destruction of, or loss of natural resources, or the costs

of assessment thereof;

( 4 ) criminal liability ;

( 5) liabilit y for response actions addressing

geographic areas excluded from the Sit e under this Consent

Decree;

( 6) liabilit y for the Yak Tunnel OU an d for

response actions addressing releases from the Yak Tunnel

including releases to Deep Ground Waters;

( 7) liabilit y for that portion of Malta Gulch

below the Malta Gulch Tailings Impoundments as defined in

the Partial Consent Decree with Hecla Mining Company; and

( 8) liabilit y for response actions addressing

Site-wide Surfac e and Ground Waters subject to the terms of

Paragraph e.c.ii. of this Consent Decree.

d. Reservations Against the Settlin g State Agency.

The covenants not to sue set forth above do not pertain to any

matters other than those expressly specified in Paragraph 92.

T he United State s reserves, and this Consent Decree is without

prejudice to, all rights against the Settlin g State Agency with

respect to all other matters , including but not limited to, the

following:

( 1) claims based on its failure to meet a

111
requirement of this Consent Decree;

( 2} liabilit y arising from the past , present, or

future disposal , release, or threat of release of Waste

Material outside of the Site ;

( 3) liabilit y fo r damages fo r injury to ,

destruction of, or loss of natural resources, or the costs

of assessment thereof;

( 4) criminal liability ;

( 5) liabilit y for response actions addressing

geographic areas excluded from the Sit e under this Consent

Decree;

( 6) liabilit y for the Yak Tunnel OU and for

response actions addressing releases from the Yak Tunnel

including releases to Deep Ground Waters; and

( 7) liabilit y for response actions addressing

Site-wide Surfac e and Ground Waters subject to the terms of

Paragraph 6.c.ii..

99. In the event EPA determines that a Responsible Settlin g

Defendant has failed to implement any provisions of the Work in

an adequate and timely manner, EPA may perform any and all

portions of the Work as EPA determines necessary. The

Responsible Settlin g Defendan t may invoke the procedures set

forth i n Section XXI (Dispute Resolution) to dispute EPA' s

determination that the Responsible Settlin g Defendant failed to

implement a provision of the Work in an adequate or timely manner

as arbitrary and capricious or otherwise not in accordance with

112
law. Coses incurred by the United State s in performin g the Work

pursuant to this Paragraph snail be considered Future Response

Cost s that the Responsible Settlin g Defendan t shall pay pursuant

to Sectio n XVII (Reimbursement of Response Costs) .

100. Notwithstandin g any other provision of this Consent

Decree, the United State s and the Stat e retain all authority and

reserve all rights to take any and all response actions

authorized by law.

XXIV . COVENANT S B Y SETTLING DEFENDANT S

101. Except as provided in Paragraph 102, Settlin g

Defendant s hereby covenant not to sue and agree not to assert any

claims or causes of action against the United State s or the State

with respect to the Sit e or this Consent Decree, including but

not limited to, any direct or indirect claims for reimbursement

from the Hazardous Substance Superfun d (established pursuant to

t he Internal Revenue Code, 26 U.S.C . § 9507) , under Section s

106(b)(2) , 111, 112, 113, of CERCLA, 42 U.S.C . § § 9606<b)(2) ,

9611, 9612, 9613, or any other provision of law. Nothin g in this

Consent Decree shall be deemed to constitute preauthorization of

a claim within the meaning of Sectio n 111 of CERCLA, 42 U.S.C . §

9611, or 40 C.F.R . § 300.700(d) . These covenants shall take

effec t upon entry of this Consent Decree except that these

covenants shall take effec t as against the United State s on

behal f of the Settlin g Federal Agencies and the Settlin g Stat e

Agency upon receipt by Asarco of the payments required by

Paragraphs 62.a. an d 65, respectively , of Section XVIII (Payments

113
by the United State s and the State) .

102. General reservations of rights . Settlin g Defendant s

reserve, and this Consent Decree is without prejudic e to, all

rights they may have against the United State s or the Stat e with

respect to the following:

a. Tortious actions taken directl y by the United

State s or the Stat e (not including oversight or approval of plans

or activities) that 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;

b. Movement of Waste Material into a Responsible

Settlin g Defendant' s Work Area from outside its Work Area in

those circumstances referred to in Paragraph 6.d.;

c. The placement of Waste Material in a site

repository within a Responsible Settlin g Defendant' s Work Area

from areas outside such Responsible Settlin g Defendant' s Work

Area in those circumstances referred to in Paragraph 6.e.;

d. Response actions addressing geographic areas

excluded from the Sit e under this Consent Decree;

e. The Yak Tunnel OU and for response actions

addressing releases from the Yak Tunnel including releases to

Deep Ground Waters;

f. Response actions addressing Site-wide Surfac e and

Ground Waters excluded from the Site under this Consent Decree;

g. Costs of performin g a response action pursuant to

a unilateral administrative order in those circumstances referred

114
to i n Paragraphs 77.e.(ii ) (B) an d Paragraph 77.e.(ill ) (B) ;

h. Proceedings in this or in a new action, or

administrative proceedings , relatin g to Deep Ground Waters as set

forth in Paragraph 96;

i. Liabilit y for damages for injury to, destruction

or, or loss of natural resource damages, or the cost of

assessment thereof;

j. Failure of the United State s or the Stat e to make

a ny payment required pursuant to Sectio n XVIII of this Consent

Decree;

k. Claims against the United State s (against the

Settlin g Federal Agencies ) or against the Settlin g Stat e Agency

based on an action by a person or entity not a party to this

Consent Decree against one or more of the Settlin g Defendant s

relating to the Sit e or to any claim for personal injury and/or

property damage at or from the Site ; and

1. Contribution claims against the United State s

(against the Settlin g Federal Agencies ) or the Settlin g Stat e

Agency to the same extent as any claim asserted by the United

State s or the Stat e against the Settlin g Defendant s under

Paragraphs 94, 95, 96, or 98.

XXV . EFFEC T OF SETTLEMENT : CONTRIBUTION PROTECTION

103. Nothin g 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 nullif y any rights that any person

115
not a signatory to this Consent Decree may have under applicable

law. Each of the Partie s expressl y 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

relatin g in any way to the Sit e against any person not a party

hereto.

104. The Settlin g Defendants , the Settlin g Federal Agencies,

a nd the Settlin g Stat e Agency, the Settlin g Defendants , the

Settlin g Federal Agencies , and the Settlin g Stat e Agency are

entitled to such protectio n from contribution actions or claims

as is provided by CERCLA Sectio n 113(f)(2) , 42 U.S.C .

§ 9613(f)(2) , for matters addressed in this Consent Decree. Aa

s et forth in Sectio n XXIII (Covenants Not to Sue by Plaintiffs) ,

the matters addressed in this Consent Decree include the

liabilit y of the Settlin g Defendants , the Settlin g Federal

Agencies, and the Settlin g Stat e Agency at the Sit e under

Section s 104, 106, or 107 of CERCLA, 42 U.S.C . §§ 9604, 9606, or

9607, and Section s 7002 and 7003 of RCRA, 42 U.S.C . §i 6972 and

6973, but does not include:

a. The Yak Tunnel OU;

b. Response actions, if any, which address Site-wide

Surfac e and Ground Waters other than response actions to effec t

Source Remediation;

c. Any geographic area excluded from the Sit e for

purposes of this Consent Decree; and

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d. Natural resource damages, including any costs of

assessing such damages , if any, and

e. That portio n of Malta Gulch below the Malta Gulch

Tailings Impoundmen t (applicabl e only to the Settlin g Federal

Agencies) .

105. Settlin g Defendant s and the Settlin g Stat e Agency agree

that with respect to any suit or claim for contribution brought

by them for matters related to this Consent Decree they will

notif y the United State s and the Stat e in writing no later than

50 days prior to the initiatio n of such suit or claim.

106. Settlin g Defendant s and the Settlin g Stat e Agency also

agree that with respect to any suit or claim for contribution

brought against them for matters related to this Consent Decree

they will notif y in writing the United State s and the Stat e

within 10 days of service of the complaint on them. In addition.

Settlin g Defendant s and the Settlin g Stat e Agency shall notif y

the United State s and the Stat e within 10 days of service or

receipt of any Motion for Summary Judgmen t and within 10 days of

receipt of any order from a court settin g a case for trial.

107. In any subsequent administrative or judicial proceeding

initiated by one or more of the Parties for injunctive relief ,

recovery of response costs, or other appropriate relief relating

to the Site , the other Parties shall not assert, and may not

maintain, any defense or claim based upon the principles of

waiver, res -judicata. collateral estoppel , issue preclusion,

claim-splitting, or other defenses based upon any contention that

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the claims raised by one or more of such Parties in the

subsequent proceedin g were or should have been brought in the

instant case; provided, however, that nothing in this Paragraph

affect s the enforceabilit y of the covenants not to sue set forth

i n Section s XXII I o r XXIV .

108. As between the United State s and the State , this

Consent Decree shall not affec t or impair the November 26, 1990

Superfun d Memorandum of Agreement between EPA and the State , or

t he rights of the Stat e under Sectio n 121 of CERCLA, 42 U.S.C . §

9621.3

XXVI . ACCES S T O INFORMATION

109. Settlin g Defendant s shall provide to EPA and CDH, 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 Sit e 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 traffi c routing, correspondence, or

other documents or information related to the Work. Settlin g

Defendant s shall also make available to EPA and CDH, for purposes

of investigation, informatio n gathering, or testimony, their

employees, agents, or representatives with knowledge of relevant

fact s concerning the performance of the Work.

110. a. Settlin g Defendant s may assert business

confidentialit y claims covering part or all of the documents or

information submitted to Plaintiff s under this Consent Decree to

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t he extent permitted by and in accordance with Sectio n 104 (e) (7)

of CERCLA, 42 U.S.C . 5 9604(e ) (7) , an d 40 C.F.R . § 2.203(b) .

Documents or informatio n determined to be confidential by EPA

wil l be afforded the protectio n specified in 40 C.F.R . Part 2,

Subpart B. If no claim of confidentialit y accompanies documents

or information when they are submitted to EPA and CDH, or if EPA

has notified Settlin g Defendant s that the documents or

information are not confidential under the standards of Section

104(e ) (7) of CERCLA, 42 U.S.C . § 9604(e ) (7) , the public ma y be

given access to such documents or informatio n without further

notice to Settlin g Defendants .

b. Settlin g Defendant s 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 a Settlin g Defendant asserts such a privilege in

lieu of providing documents, it shall provide the Plaintiff s with

t he following: (1) the titl e of the document, record, or

information ; {2) the date of the document, record, or

information ; (3) the name and titl e of the author of the

document, record, or information ; (4) the name and titl e of each

addressee and recipient; (5) a description of the contents of the

document, record, or information : and (6) the privilege asserted.

However, no documents, reports or other informatio n created or

generated pursuant to the requirements of the Consent Decree

shall be withheld on the grounds that they are privileged.

111. No claim of confidentialit y shall be made with respect

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to any data, including, but not limited to, all sampling,

analytical , monitoring, hydrogeoiogic, scientific , chemical, or

engineering data, or any other documents or information

evidencing conditions at or within the Site .

XXVII . RETENTION OF RECORDS

112. Until 10 years after a Responsible Settlin g Defendant

receives EPA' s notificatio n pursuant to Paragraphs 53.b. (i n the

case of Asarco) or 54.b. (in the case of Resurrection) under

Sectio n XV (Certificatio n of Completio n of the Work) , the

Responsible Settlin g Defendan t 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 liabilit y of any person for

response actions conducted and to be conducted at the Work Areas,

regardless of any corporate retention policy to the contrary.

Until 10 years after a Responsible Settlin g Defendant' s receipt

of EPA' s notificatio n pursuant to Paragraphs 52.b. (i n the case

of Asarco) or 54.b. (in the case of Resurrection) of Sectio n XV

(Certificatio n of Completion ) , the Responsible Settlin g Defendant

shall also instruct its contractors and agents to preserve all

documents, records, and information of whatever kind, nature or

description relating to the performance of the Work.

113. At the conclusion of this document retention period,

t he Responsible Settlin g Defendan t shall notif y the United State s

and the Stat e at least 90 days prior to the destruction of any

such records or documents, and, upon request by the United State s

120
or the State , the Responsible Settlin g Defendan t shall deliver

any such records or documents to EPA or CDH. The Responsible

Settlin g Defendan t may assert that certain documents, records and

other informatio n are privileged under the attorney-client

privilege or any other privilege recognized by federal law. If

the Responsible Settlin g Defendan t asserts such a privilege, it

shall provide the Plaintiff s with the following: (1) the titl e

of the document, record, or information ; (2) the date of the

document, record, or information ; (3) the name and titl e of the

author of the document, record, or information ; (4) the name and

titl e of each addressee and recipient; {5} a description of the

subject of the document, record, or information : and (6) the

privilege they assert. 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.

114. Each Settlin g Defendan t hereby certifie s that it has

not altered, mutilated, discarded, destroyed or otherwise

disposed of any records, documents or other information relating

to its potential liabilit y regarding the Sit e since notificatio n

of potential liabilit y by the United State s or the Stat e or the

filin g of suit against it regarding the Sit e and that it has

full y complied with any and all EPA requests for information

pursuant to Section s 104(e ) an d 122(e ) of CERCLA, 42 U.S.C . §§

9604(e ) an d 9622(e ) .

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XXVIII . NOTICE S AN D SUBMISSION S

115. 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 individual s at the addresses specified below,

unless those individual s 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. Writte n notice as specified herein shall

constitute complete satisfactio n of any written notice

requirement of the Consent Decree with respect to the United

States , EPA, the State , an d Settlin g Defendants , respectively.

Aa to the United States:

Chief , Environmental Enforcement Section

Environment and Natural Resources Division U.S. Department of Justic e P.O. Box 7611 B en Frankli n Statio n Washington , D.C. 20044 Re: DJ # 90-11-3-138

and

Director, Hazardous Waste Management Division United State s Environmental Protection Agency Region VII I

9 99 18th Street , Suite 500 Denver, CO 80202-2405

A3 to EPA:

E PA Remedial Projec t Manager California Gulch Superfun d Sit e United State s Environmental Protection Agency Region VII I

9 99 18th Street , Suite 500 Denver, CO 80202-2405

and

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E PA Assistan t Regional Counsel California Gulch Superfun d Sit e United State s Environmental Protectio n Agency Region VII I

9 99 18th Street , Suit e 500 Denver, CO 80202-2405

As to the State :

Stat e Projec t Office r California Gulch Superfun d Sit e Hazardous Material s and Waste Division

Colorado Department of Health

4300 Cherry Creek Drive South Denver, CO 80222-1530

and

Counsel of Record California Gulch Superfun d Sit e Stat e of Colorado Department of Law Natural Resources Sectio n

1525 Sherman Street , 5th Floor Denver, CO 80203

As to Asarco:

Environmental Manager ASARCO Incorporated Globe Plant

495 East 51st Avenue Denver, CO 80216-2098

and

General Counsel ASARCO Incorporated

180 Maiden Lane N ew York, New York 10038-4991

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As to Resurrection:

Vice President

Environmental Affair s Newmont Minin g Corporation

1700 Lincol n Stree t Denver, CO 30203

and

General Counsel Newmont Mining Corporation

1700 Lincoln Street Denver, CO 80203

XXIX . EFFECTIV E DATE

116. The effectiv e date of this Consent Decree shall be the

date upon which this Consent Decree is entered by the Court,

except as otherwise provided herein.

XXX . RETENTION OF JURISDICTION

117. Thi s Court retains jurisdictio n over both the subject

matter of this Consent Decree and the Parties 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 appl y to

the Court at any time for such further order, direction, and

relief as may be necessary or appropriate for the construction or

modificatio n of this Consent Decree, or to effectuat e or enforce

compliance with its terms, or to resolve disputes in accordance

with Sectio n XXI (Dispute Resolution) hereof .

XXXI . APPENDICES

118. The followin g appendices are attached to and

incorporated into this Consent Decree:

"Appendix A" is the map of the Site , the Work Areas, and

EPA' s current designation of OUs.

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* fc

"Appendix E" is the Asarco WAMP.

"Appendix C" is the Statemen t of Assumption s for the LRRP.

"Appendix D" is the Resurrection WAMP.

"Appendix E" is the Asarco Work Area Response Actio n No

Challenge List .

"Appendix F" is the Resurrection Work Area Response Action

No Challenge List .

"Appendix G" is the Asarco Work Area Response Action

Immediate Judicial Review List .

"Appendix H" is the Resurrection Work Area Response Action

Immediate Judicial Review List .

"Appendix I" is the Interim Action No Challenge List .

"Appendix J" is the Memorandum of this Consent Decree.

XXXII . COMMUNIT Y RELATION S

119. Each Responsible Settlin g Defendan t shall participate

in community relations activities under plans consistent with

their respective WAMPs . Each Responsible Settlin g Defendan t

shall propose to EPA and CDH their participatio n in the community

relations pla n to be developed by EPA. EPA, in consultation with

CDH, will determine the appropriate role for each Responsible

Settlin g Defendan t under the Plan. Each Responsible Settlin g

Defendant shall also cooperate with EPA and CDH in providing

information regarding the Work to the public. As requested by

E PA or CDH, each Responsible Settlin g Defendan t shall participate

in the preparation of such information for dissemination to the

public and in public meetings which may be held or sponsored by

125
EPA or CDH to explai n activities at or relatin g to their

respective Work Areas.

XXXIII . MODIFICATIO N

120. Schedules specified in documents prepared pursuant to

this Consent Decree for completio n of the Work may be modified by

agreement of EPA and the Responsible Settlin g Defendant . All

such modification s shal l be made in writing.

121. No material modification s shall be made to either the

Asarco WAMP or the Resurrection WAMP or any relevant SOW without

written notificatio n to and written approval of the United

States , the Responsible Settlin g Defendant , and the Court. Prior

to providing its approval to any such modification , the United

State s will provide the Stat e with a reasonable opportunity to

review and comment on the proposed modification. Modification s

to the Asarco WAMP, the Resurrection WAMP, or any relevant SOW

that do not materially alter these documents may be made by

written agreement between EPA, after providing CDH with a

reasonable opportunity to review and comment on the proposed

modifications , and the Responsible Settlin g Defendant .

122. Nothing in this Decree shall be deemed to alter the

Court' s power to enforce, supervise or approve modification s to

this Consent Decree.

XXXIV . LODGING AND OPPORTUNIT Y FOR PUBLIC COMMENT

123. Thi s 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 .

126
§ 9622(d)(2) , an d 28 C.F.R . 5 50.7. The United State s reserves

the right to withdraw or withhold its consent if the comments

regarding the Consent Decree disclose fact s or considerations

which indicate that the Consent Decree is inappropriate,

improper, or inadequate. Settlin g Defendant s hereby consent to

t he entry of this Consent Decree without further notice.

124. If for any reason the Court should decline to approve

this Consent Decree in the form presented, this agreement is

voidable at the sole discretio n of any party and the terms of the

agreement may not be used as evidence in any litigatio n between

t he Parties.

XXXV . SIGNATORIES/SERVIC E

125. Thi s Consent Decree may be executed in counterparts,

each of which when executed shall be deemed to be an original,

but such counterparts shall together constitute one and the same

document.

126. Each undersigned representative of the Settlin g

Defendants , the Assistan t Attorne y General for Environment and

Natural Resources of the Department of Justice , and the Attorney

General for the Stat e of Colorado, certifie s that he or she is

full y authorized to enter into the terms and conditions of this

Consent Decree and to execute and legall y bind such party to this

document.

127. Each Settlin g Defendan t 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 State s has

127
notified Settlin g Defendant s in writing that it no longer

support s entry of the Consent Decree.

SO ORDERED THIS _______ DAY OF ____________, 19

J IM R . CARRIGAN United State s District Judge

128
. 4

T HE UNDERSIGNED PARTIES enter into this Consent Decree in the

matter of United State s v. Apache Energy & Mineral s Co. . et al

relatin g to the California Gulch NPL Superfun d Site .

F OR THE UNITED STATES OF AMERICA

Date:

Date:

Date;

LOIS J . SCHIFFE R Actin g Assistan t Attorney General

Environment and Natural Resources Division U.S. Department of Justic e

10th and Pennsylvania Avenue, N.W. Washington , D.C . 20530

JEREL L. ELLINGTON, Attorney J . JARED SNYDER , Attorney

Environment and Natural Resources Division

Environmental Enforcement Section

9 99 Eighteenth Street , Suite 945N Denver, CO 80202-2405

GARY RUBIN, Attorney REBECCA A. LLOYD, Attorney U.S. Department of Justic e

Environment and Natural Resources Division

Environmental Defense Sectio n

10th and Pennsylvania Ave. , NW Washington , D.C. 20044

129
Date

Date

Date

Date:

Date:

JAMES R. ALLISON United State s Attorne

y District of Colorado

WILLIAM J . PHARO Chief , Civil Divisio

n Assistan t United State

s Attorney

1961 Stout Street , Suite 1100 Denver, CO 80294-3608

WILLIAM P . YELLOWTAI L Regional Administrator United State s Environmenta

l Protection Agency -- Region VIII

9 99 Eighteenth Street , Suite 500 Denver, CO 80202-2405

THOMAS A. SPEICHER Regional Counsel United State s Environmenta

l Protection Agency -- Regio

n VIII

9 99 Eighteenth Street , Suite 500 Denver, CO 80202-2405

NANCY A. MANGONE Senior Attorney United State s Environmenta

l Protection Agency -- Region VIII

9 99 Eighteenth Street , Suite 500 Denver, CO 80202-2405

STEVEN A. HERMAN Assistan t Administrato

r Offic e of Enforcement United State s Environmenta

l Protection Agency

4 01 M. Street , S.W. Washington , D.C. 2046

0

130
F O

R THE STATE OF COLORADO:

Date:

Date

Date:

Date:

GALE A. NORTON Attorney Genera

l

STEPHEN K . ERKENBRACK Chief Deputy Attorney Genera

l

TIMOTH Y M. TYMKOVICH Solicitor General

PATRICIA S . BANGERT Deputy Attorney Genera

l Natural Resources Sectio

n

CASEY A. SHPAL L Firs t Assistan t Attorne

y General CERCLA Litigatio n Unit

GARY HERBERT Assistant Attorne

y General CERCLA Litigation Unit Natural Resources Section

1525 Sherman Street , 5th Floor Denver, CO 80203

PATRICI A NOLAN , MD , M.P.H . Executive Director Colorado Department of Healt

h

RONALD W. CATTANY Deputy Director Colorado Departmen

t of Natural Resources

ROBERT L. CLEVENGER Chief Engineer Colorado Department of Transportation

131
Date

PENFIEL D TAT E II I

Chairman, Stat e Claims Board State of Colorado

132
Date

Date;

F OR ASARCO INCORPORATED :

MICHAEL 0. VARNER Vice President , Environmental Operations ASARCO Incorporated

180 Maiden Lane N ew York, New York 10038-4991

F OR RES-ASARCO JOINT VENTURE :

MICHAEL 0. VARNER Vice President, Environmental Operations ASARCO Incorporated

180 Maiden Lane N ew York, New York 10038-4991

133
F OR RESURRECTION MINING COMPANY AND NEWMON T MININ G CORPORATION:

Date:

GRAHAM M. CLARK Senior Vice-President One United Bank Center

1700 Lincoln Street , Suite 2600 Denver, CO 80203

134