Jack Oman 4 Centerpointe Drive 

Project Manager LaPalma, CA. 90623-1066 

(714) 228-6774 office 

(714) 670-5195 fax 

jack.oman@bp.com 

March 21, 2011 

VIA EMAIL AND U.S. MAIL

Erna Waterman, RPM 

US EPA, Region 8 

(8ERP-SR) 

1595 Wynkoop Street 

Denver, CO 80202-1129 

Re: International Smelting and Refining Site 

Administrative Order for Operations and Maintenance of a Remedial Action 

EPA Docket No. CERCLA 08-2011-0004 

Dear Ms. Waterman: 

I write to provide Atlantic Richfield Company’s (“AR”) written Notice of Intent to Comply with 

the above-referenced Administrative Order (the “Order”). This letter also sets forth AR’s 

comments on the provisions of the Order. AR submits these comments to become part of the 

administrative record for the International Smelting and Refining Site (the “Site”). Given the 

short timeframe in which AR has been required to prepare this letter and its comments, AR 

expressly reserves its rights to submit additional comments at a later date. AR intends to comply 

fully with the lawful requirements of the Order, to work closely with EPA to implement the work 

required by the Order (“Work”) in a timely manner, and to sustain its good working relationship 

with EPA. 

SPECIFIC COMMENTS ON THE ORDER

1. Jurisdiction, Findings of Fact, Conclusions of Law and Determinations

AR does not admit and reserves its right to contest EPA’s statements regarding 

jurisdiction, findings of fact, conclusions of law and determinations set forth in Sections I, II and 

III of the Order. This includes, without limitation, any findings, conclusions and determinations 

pertaining to an “imminent and substantial endangerment” or threat to public health or the 

environment from alleged releases of lead, arsenic or other materials, or pertaining to “hazardous 

substances.” This Notice of Intent to Comply shall not under any circumstances constitute an 

admission of the terms or conditions of the Order or of any liability associated with the Site, and 

AR expressly reserves its right to contest the same. 
Erna Waterman, RPM 

March 21, 2011 

Page 2 

2. The Order Should Not Be Binding Upon Directors, Officers, Employees and Agents of 

the Respondent

EPA has not made any determinations, findings or conclusions that would provide a basis for 

binding individuals such as directors, officers, employees and agents, as provided in Section 

VIII, paragraph 23 of the Order. No factual basis exists for binding such individuals in this 

instance. EPA attempts in the Order to disregard the corporate entity and bind individuals under 

the Order without regard to traditional notions of corporate law limiting individual liability. 

Moreover, there is no evidence that the individuals EPA attempts to bind under the Order have 

exercised or will exercise the requisite degree of control necessary to impose liability as 

described in those CERCLA cases where the courts have disregarded the corporate form in order 

to impose individual liability. 

3. Institutional Controls

Based upon the March 17, 2011 telephone conversation between AR’s outside counsel Rich 

Curley and EPA’s counsel Lorraine Ross, AR understands that EPA agrees that AR need not 

record the Order in the Tooele County public records for real property within the Site (as 

required by Paragraph 25 of the Order) given that AR has already recorded in the public records 

the Environmental Covenant approved by EPA and UDEQ. Please let me know if AR’s 

understanding is incorrect in any material respect. 

4. Notification of Personnel and contractors

Section IX, paragraphs 28 and 29 and Section XVII, paragraph 52 require notification to EPA of 

AR’s project manager and contractors and provide that EPA may disapprove such personnel. 

EPA has no authority under CERCLA to require notification or to approve or disapprove of 

project managers or contractors selected by AR. Notwithstanding this lack of authority, AR 

agrees to notify EPA of the personnel it intends to use to carry out the Work under the Order. 

AR confirms that Jack Oman will remain its project coordinator and Anderson Engineering will 

remain its primary contractor for implementing the Work. 

5. Additional Response Actions

Section XI, paragraphs 34 and 35 of the Order require unspecified additional response actions at 

the Site. AR reserves its right to object to any such additional response actions at such time, if 

ever, that EPA directs AR to perform them. 

6. Site Access – Written Right of Access

Section XVIII, paragraph 53 requires AR to obtain, or use its best efforts to obtain, access to 

property owned by third parties that is necessary for implementation of Work under the Order. 

Access agreements, which must be obtained within 30 days after the Effective Date of the Order, 

are required to provide access for EPA, AR and their respective representatives. 
Erna Waterman, RPM 

March 21, 2011 

Page 3 

As an initial matter, EPA does not have statutory authority to order AR to obtain access to 

property controlled by third parties. Additionally, the Order does not acknowledge that AR 

already has obtained access to perform the Work. 

7. AR’s Right to Attorney-Client Privilege and Work Product Protection

Section XIX, paragraph 54 of the Order requires AR to allow EPA to inspect all documents and 

other writings relating to the Work. The Order fails to recognize that in addition to the business 

confidentiality EPA acknowledges, AR has a right to the attorney-client privilege and work 

product protection of a portion of its documents relating to the Site and the Work. If EPA ever 

seeks to review any of AR’s records relating to the Site, AR will insist upon observance of those 

rights by EPA. AR hereby confirms as required by Paragraph 60 of the Order that it continues to 

retain all documents relating to its alleged liability with respect to the Site. 

8. Reimbursement of Response Costs

Section XXII, paragraph 63 of the Order purports to require AR to reimburse EPA for 

unspecified amounts of response costs incurred by EPA for overseeing AR’s implementation of 

the Work required under the Order. This provision of the Order clearly exceeds EPA’s authority 

under CERCLA. AR remains willing to enter into negotiations with EPA of an administrative 

order on consent (“AOC”) to provide for payment of both EPA’s currently unreimbursed past 

costs and EPA’s future oversight costs. Such an AOC is one of the lawful mechanisms for AR’s 

payment of such costs. Based upon Rich Curley’s March 17, 2011 telephone conversation with 

Lorraine Ross, AR understands that EPA is amenable to that approach and will soon provide a 

draft AOC to AR. 

9. Enforcement

AR notes that the penalty provisions for failure to comply with the Order set forth in Section 

XXIV, paragraph 70 do not apply if sufficient cause exists for failure or refusal to comply. See, 

Sections 106(b)(1) and 107(c)(3) of CERCLA. 
Erna Waterman, RPM 

March 21, 2011 

Page 4 

CONCLUSION

AR appreciates EPA’s consideration of these comments. Please include these comments in the 

administrative record for the Site. If you have any questions or concerns about these comments 

please feel free to contact me or AR’s outside counsel, Rich Curley. 

Sincerely, 

Jack Oman 

Project Manager 

cc: Lorraine Ross (via email and US mail) 

Ron Halsey (via email) 

Marc Ferries (via email) 

Roy Thun (via email) 

Nathan Block (via email) 

Rich Curley (via email)