04&77& ADMINISTRATIV E RECOftD

UNITE D STATE S ENVIRONMENTA L PROTECTION AGENC Y REGIO N VII I r"l-.£i

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IN THE MATTER OF : )) , CALIFORNIA GULCH SUPERFUN D SITE , ) / ASARCO INCORPORATED, RESURRECTION ) C MINING COMPANY , RES-ASARCO JOINT ) EPA Docket VENTURE, ) RESPONDENTS . ) ) _ /- xj ^ ,_

PROCEEDING UNDER SECTION 106(A) , ) *" ^^ OF THE COMPREHENSIV E ENVIRONMENTAL ) pjljl l RESPONSE , COMPENSATION, AND ) "— — — ——— — LIABILIT Y ACT , A S AMENDED ) KEYWORD S ——— —

( 42 U.S.C . § 9606(A) ) ) ~~ )

ADMINISTRATIVE ORDER ON CONSENT

TABLE OF CONTENTS

I . Introduction . ..................

I I . Jurisdictio n ..................

III . Parties Bound ..................

I V . Definition s ...................

V. Statemen t of Purpose. ..............

V I . Findings of Fact ................

VII. Conclusion s of Lav an d Determinations ......

VIII . Notic e t o Stat e .................

IX. Work to be Performed ..............

X. Modificatio n of the Work Pla n ..........

X I. Qualit y Assurance ................

XII. Progress Reports and Meetings ..........

XIII. Access , Sampling, and Availabilit y of Informatio n

XIV. Desicmated Proiect Coordinators .........

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X V. Other Applicabl e Lavs ............... 13

XVI. Record Preservation ................ 13

XVII. Dispute Resolution ................ 14

XVIII . Stipulated Penalties ............... 14

XIX. Force Kajeur e ................... 16

X X. Reimbursement of Response Costs .......... 17

XXI. Reservations of Right s .............. 18

XXII. Disclaimers ................... 18

XXIII . Other Claims ................... 19

XXIV. Indemnificatio n .................. 19

XXV. Effectiv e Date and Subsequent Modificatio n .... 20

XXVI. Termination an d Satisfactio n ........... 20

XXVII. Signatories .................... 20

Attachment s

Exhibi t 1 - Work Pla n

Exhibi t 2 - Schedul e
I . INTRODUCTION

1. Thi s Administrative Order on Consent (Order ) is entered

into voluntaril y by the United State s Environmental Protection Agency (EPA) an d Respondents. Thi s Order concerns (1 ) the

performance by Respondent s of a work, pla n for soils samplin g and

air monitoring, the result s of vhich wil l be incorporated into a baseline risk assessment to be prepared by EPA, and

( 2) reimbursement of response costs incurred by the United State s

in connection vith that work at the California Gulch Superfun d Sit e near Leadville , Colorado.

I I . JURISDICTIO N

2. Thi s Order is issued under the authority vested in the President of the United State s by § 106(a ) of the Comprehensive

Environmental Response, Compensation , and Liabilit y Act of 1980,

42 U.S.C . § 9606(a ) (1982) , as amended by the Superfun d Amendments and Reauthorization Act of 1986; Pub. L. No. 99-499,

1 00 Stat . 1613 (1986 ) (CERCLA) . Thi s authority was delegated to

the Administrator of EPA on Januar y 23, 1987, by Executive Order

12,580, 52 Fed. Reg. 2,923 (1987) , and further delegated to Regional Administrators on September 13, 1987, by EPA Delegation N o. 14-14-C. Thi s authority has been further delegated to the Director of the Hazardous Waste Management Division.

3. .Respondents agree to undertake all actions required by

this Order. In any action by the United State s to enforce terms

of this Order, Respondents consent to and agree not to contest

the authority or jurisdictio n of EPA to issue or enforce this Order, and agree not to contest the validit y of this Order or its

terms.

III . PARTIE S BOUND

4. Thi s Order shal l appl y to and be bindin g upon EPA and

shal l be bindin g upon Respondent s and their agents , successors,

a nd assigns. Respondent s are jointl y and severall y responsible

f or carrying out all actions required of them by thi s Order. No

change in the ownership or corporate or other legal status of Respondent s or of the facilit y or Sit e shal l alter Respondents responsibilitie s under thi s Order.

5. Respondent s shal l provide a copy of thi s Order to any

subsequent owners or successors so lon g as thi s Order remains in

effect . Respondent s shal l provide a copy of thi s Order to al l

contractors, subcontractors, laboratories , and consultant s

retained to conduct any work under thi s Order. Respondent s shal l

conditio n an y such contract s upon satisfactor y complianc e with

thi s Order. Notwithstandin g the terms of an y contract , Respondent s are responsible for compliance with thi s Order an d

f or requirin g that their employees , contractors , consultants ,

subcontractors, and agents , compl y with thi s Order.
I V . DEFINITION S

6. Unles s otherwise expressl y provided herein, terms used in

this Order which are defined in CERCLA or in regulation s

promulgated under CERCLA shal l have the meaning assigned to them

in CERCLA or such regulations . For purposes of this Order, the

followin g terms shall have the meanings set forth below:

"Contractor" means any person, includin g the contractors,

subcontractors, or agents , retained or hired by Respondent s to

undertake any work under this Order.

"Day" means calendar day , unles s otherwise specified. In

computing any period of time under this Order, where the last

d ay would fal l on a Saturday , Sunday , or Federal holiday , the

period shal l run until the close of business on the next

working day.

"Deliverable" means any written product , including, but not

limited to, technical reports , data reports, technical

memoranda, progress reports , or other documents describing the Work performed or to be performed, that Respondents are

required to submit under the terms of thi s Order.

"NCF " means the National Oil and Hazardous Substances Pollutio n Contingency Plan promulgated under § 105 of CERCLA, 42 U.S.C .

9605, and codified at 40 C.F..R. Part 300, including, but not

limited to, any amendments thereto.

"Order" means this Order, the exhibits attached to this Order,

and all documents incorporated into this Order according to the

procedures set forth herein. If there is a conflic t between

this Order and any documents incorporated into thi s Order, the

terms of the Order shall control.

"Site" means the Californi a Gulch Superfun d Sit e as described

in the Complaint , as amended, and the consolidated proceedings

therein. Civi l Actio n No. 83-C-2388 (consolidated with 86-C1675) .

"State" means the Stat e of Colorado, by and through the Colorado Departmen t of Health .

"United States" for purpose s of thi s Order means the United State s of America and/o r the Environmental Protectio n Agenc y

(EPA) .

"Work" means all tasks Respondent s are required to perfor m in

t he work areas described in the Work Plan .

"Work Plan" means the detailed Work Pla n attached hereto as

Exhibi t 1, and any other plan s or modification s thereto

described in the Work Pla n or approved by EPA pursuan t to thi s Order.
V. STATEMENT OF PURPOSE

7. The objectives of EPA and Respondent s are for Respondent s

( a) to perform , vith EPA oversight, certain tasks consistent with CERCLA and the NCP, includin g collectio n of data that EPA wil l

incorporate in a Baseline Risk Assessment , and (b) to reimburse

t he United State s for. response costs incurred by the United State s in accordance vith this Order.

8. The activities to be conducted under thi s Order are those

set forth in the Work Plan , which has been approved by EPA.

V I . FINDING S OF FACT

9. The Sit e is listed on the National Priorities List and is

located near Leadville , Colorado.

1 0. ASARCO Incorporated is a New Jerse y corporation vith its

corporate headquarters in the state of Nev York. Resurrection Minin g Compan y is a Delaware corporation vith its corporate

headquarters in the state of Colorado. The Res-ASARCO Join t Venture is a join t venture of ASARCO and Resurrection. Respondent s ovn or operate or have ovned or operated propert y

vithin the Site .

1 1. The Respondent s enter into this Administrative Order on Consent to perform vork identified by EPA vhich vill partiall y

characterize the release or threat of release of hazardous

substances at the Sit e in order to protect the public health or

velfar e or the environment.

1 2. Mil l tailin g pile s and vaste rock pile s are foun d vithi n

t he Site . Mil l tailin g is the rock debris remaining afte r millin g and separatio n has removed the metal as concentrates fro m

t he ore. Tailin g i s generall y fine-grained particles . Min e

vaste rock consists of mine developmen t rock and low grade ore

removed to gain access to an ore body and ofte n deposited near

adit s and shaf t openings . Some of the constituents , also known

as heavy metals , foun d in mil l tailin g and waste rock are

hazardous substances.

1 3. Smelte r operation s previousl y operated at the Sit e are

another potential source of heavy metal contamination .

14. Fugitiv e dust may be generated by wind erosion , earth

movement durin g construction , off-roa d vehicles , an d vehicular

traffi c o n dirt an d gravel roads.

1 5. Data collected pursuan t to the Work Pla n i s intended for

u se in evaluatin g the potential for migratio n of metal s through

various environmental media and potential associated risks to

publi c health or welfar e or the environment.
VII . CONCLUSIONS OF LAW AND DETERMINATIONS

1 6. Based on the precedin g Finding s of Fact and the

administrative record for the California Gulch Superfun d Site , E PA has made the followin g conclusions of lav and determinations:

a. The work areas described in the Work Pla n meet the

definitio n of "facility " i n CERCLA, 42 U.S.C . § 9601(9) ;

b. Some of the constituent s in mine tailin g and vaste

rock foun d at the Sit e are "hazardous substances" as defined in

§ 101(14 ) of CERCLA, 42 U.S.C . § 9601(14) , or constitute "any

pollutan t or contaminant" that may present an imminent and

substantial danger to public health or welfar e under

§ 104(a)(l ) o f CERCLA , 4 2 U.S.C. S 9604(a)(l) ;

c. The presence of hazardous substances at the Sit e or

t he past , present , or threat of potential future release of

hazardous substances described in Articl e VI of thi s Order

constitutes an actual and/or threatened "release" as defined in

§ 101(22 ) of CERCLA, 42 U.S.C . § 9601(22) ;

d. Respondents are "persons" as defined in § 101(21 ) of CERCLA, 42 U.S.C . § 9601(21) ;

e. Respondent s have been identified by EPA as Potentiall y Responsible Parties at the Sit e under sections 104,

107, and 122 of CERCLA, 42 U.S.C . S 9604, 9607 and 9622.

f. The actual or threatened release of hazardous

substances may present an imminent and substantial endangerment

to public health or welfar e or the environment;

g. The actions required by thi s Order are protective of

the publi c health or welfar e or the environment, are in the

public interest , and are consistent with CERCLA and the NCP.

VIII . NOTIC E T O STAT E

1 7. By providin g a copy of thi s Order to the Stat e of Colorado, EPA has notified the Stat e that thi s Order is being

issued and that EPA is the lead agency for coordinating,

overseeing, and enforcin g the response action required by the Order.

1 8. An y document , notice, material , or deliverabl e which Respondent s are required under thi s Order to submit to EPA, shal l

also be submitted by Respondent s to the State . However, thi s

requirement , as it pertain s to the State , is not subjec t to

stipulated penaltie s as contained i n Articl e XVII I herein.

1 9. The Stat e and its authorized representative s shal l be

provided the same right s of access to areas listed in the Work Pla n as i s provided for the EPA i n paragraph 31, infra . In
addition . Respondent s shal l provide the Stat e an d it s authorized

representatives the opportunit y to take spli t or duplicat e

samples of any samples collected by the Respondent s pursuant to

t he implementatio n of thi s Order.

I X. WORK TO BE PERFORMED

2 0. Respondent shal l perfor m the Work set forth in Exhibit 1. Respondent s shal l conduct activities and submit deliverables as

provided by this Order and approved by EPA. All of the Work is

to be conducted in accordance vith the schedule set forth in

Exhibit 2 of this Order and the Work Plan , as initiall y approved

or modified pursuant to the provisions of Articl e X, herein.

2 1. All of the Work performed under thi s Order shal l be under

t he direction and supervision of qualified personnel. Respondent s shal l notif y EPA in vriting of the names, titles , and

qualification s of the personnel , includin g contractors,

subcontractors, consultants , and laboratories to be used in

carrying out such vork. The qualification s of the persons to

properl y perform the vork for Respondent s shal l be subject to

EPA' s review for verificatio n that such persons meet minimum

reasonable technical background and experience requirements. If

E PA disapproves in vriting of any person(s) technical

qualifications , Respondents shal l notif y EPA of the identit y and

qualification s of the replacements ) vithin seven days of the

vritten notice. During the course of vork. Respondent s shal l

notif y EPA as much in advance as practicable of any changes or

addition s in the personnel used to carry out such vork, providin g

their names, titles , and qualifications . EPA shal l have the same

right to approve changes and addition s to personnel as it has

hereunder regardin g the initial notification .

22. EPA reserves the right to comment on, modify , and direct

changes fo r al l deliverables . A t EPA' s discretion , Respondent s

must full y correct al l substantive deficiencie s an d incorporate

a nd integrate all informatio n and comments supplied by EPA in

either subsequent or resubmitted deliverables vithi n seven days

of receipt of EPA comments. At the time the revised document is

submitted. Respondent s shal l submit a cover letter describin g how

each EPA comment was addressed and a certificatio n that no other

changes were made. Failur e to incorporate or addres s such EPA

comment or modificatio n or to identif y any other changes made is

a violatio n of thi s Order.

2 3. If afte r receivin g EPA comments. Respondent s do not i n

good fait h amend or revise a report , pla n or other submittal to

full y reflec t EPA' s substantive direction s fo r changes , EP A

retain s the right to seek stipulated or statutor y penalties ;

perfor m its own studie s or cleanup and seek reimbursement fro m Respondent s for it s costs, and/or seek other relief .

2 4. Neithe r failur e of EPA to expressl y approve or disapprove Respondents submissions vithi n a specified time period, nor the
absence of comments, shal l be construed as approval by EPA.

X. MODIFICATION OF THE WORK PLAN

2 5. If at any time before termination of this Order, Respondent s identif y a need for additional data under the Work Plan , Respondent s shal l submit a memorandum documenting the need

f or additional data to the EPA Projec t Coordinator. Withi n seven

days of receipt of such memorandum, EPA shal l notif y Respondent s

whether it has approved or disapproved such additional data

collection . Upon agreement of the parties , such additional data

collection shall become part of the Work Plan .

26. In the event of unanticipated or changed circumstances at

t he Site , Respondent s shal l notif y the EPA Projec t Coordinator by

telephon e within 24 hours of discovery of the unanticipated or

changed circumstances. If the unanticipated or changed

circumstances pose an immediate threat to human health or welfar e

or the environment, Respondent s shal l notif y EPA and the Stat e

immediately. If EPA determines that the immediate threat or the

unanticipated or changes circumstances warrant changes in the Work Plan , the Work Plan may be modified as provided for herein.

27. EPA may determine that additional activities are necessary

to accomplish the tasks identified in the Scope of Work in the Work Plan.* In such event, EPA shall request in writin g that Respondents agree to perform such additional activities. Respondents shall have seven days from receipt of the EPA request

to meet with EPA and to confirm their willingnes s to perform the

additional activities or invoke disput e resolution Articl e XVII. In the event the parties agree that the additional activities are

to be performed by Respondents , such activities shal l be

completed according; to the standards , specifications , and

schedule set forth by the parties in a written modificatio n to

t he Work Plan .

X I . QUALIT Y ASSURANC E

2 8. Respondent s shal l assure that work performed, samples

taken , and analyses conducted conform to the requirements of thi s Order. Respondent s wil l assure that their fiel d personnel are

properl y trained in the use of fiel d equipmen t and chain-ofcustod y procedures.

2 9. To provide qualit y assurance an d maintai n qualit y control , Respondent s shall :

a. Use a laborator y which has a documented qualit y

assurance program that complie s with EPA guidance;

b. Ensure that such laborator y perform s analyses

accordin g to EPA-approved methods or methods deemed

satisfactor y by EPA (if a non-approved method is proposed. Respondent s shal l submit all protocol s to be used for analyse s

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to EPA at least seven days before beginnin g analyses) ;

c. Ensure that EPA and Stat e personnel or their

authorized representatives are allowed access to such

laboratory and personnel; and

d. Upon EPA request, have such laboratory analyze

samples submitted by EPA for quality-assurance monitoring.

In the event that the Respondents fai l to use the qualit y

assurance/qualit y control practices and procedures as outlined in

t he approved samplin g and analysi s plan , EPA reserves the right

to conduct the Work or any portion thereof pursuant to its

authorit y under CERCLA , to seek reimbursement from Respondents ,

and/or seek any other appropriat e relief .

XII . PROGRESS REPORTS AN D MEETING S

30. During the course of the Work under this Order, Respondent s shal l submit the followin g reports to EPA:

a. In the event EPA determines that a weekly progress

briefin g would be necessary or appropriate, EPA may request

such a meeting in any work week in the schedule set forth in

Exhibit 2 by supplyin g notice of such requested meeting to Respondents at least three working days prior to the requested

date for such meeting. In the absence of such request, weekly meetings shal l not be required under thi s Order.

b. Monthl y Progress Reports. The Respondent s shal l also

prepare monthl y progres s reports containin g the followin g

information :

( 1) Action s taken t o compl y with thi s Order,

includin g plan s and actions completed durin g the

precedin g month;

( 2) Activitie s durin g the precedin g month that

deviated fro m or were carried out in additio n to

those provided for in the Work Plan ;

( 3 ) Al l problems encountered an d an y anticipated

problems , any actual or anticipated delays , and

solution s developed an d implemented to addres s

a ny actual or anticipated problems or delays ;

( 4) Work planned fo r the next month with schedules

relatin g such work to the overal l project ; and

( 5) Al l result s of samplin g an d tests an d al l other

data collected or received by Respondents .

Respondent s shal l submit these report s to EPA on or before

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the 10th day of each month durin g which thi s Order is in

effect .

c. Final Report. Respondents shall submit a detailed

report documenting the Work performed under this Order vithin

60 days of completio n of the activities required by the Work Plan .

XIII . ACCESS , SAMPLING , AN D AVAILABILIT Y O F INFORMATION

31. EPA and its authorized representatives may enter and

freel y move about all property at the Site and off-Sit e areas

where the Work is being performed, for the purposes of inspectin g

conditions , activities , the result s of activities , non-privileged

records, operatin g logs , and contracts related to the Sit e or Respondent s and its contractors ) pursuant to thi s Order;

reviewing the progress of Respondent s in carrying out the terms

of this Order; conductin g tests as EPA or its authorized

representatives deem necessary; using a camera, sound recording

device, or other documentary type equipment; and verifyin g the

data submitted to EPA by Respondents. Respondent s shal l allo w

these persons to inspect and copy all non-privileged records,

files , photographs , documents, samplin g and monitoring data, and

other writings related to the Work undertaken in carrying out

this Order. Nothin g herein shal l be interpreted as limitin g or

affectin g EPA' s right of entry or inspection authorit y under

federal law.

32. If a wdrk area needed for conduct of the Work is owned in

whole or in part by parties other than those bound by this Order, Respondent s wil l obtain, or use their best effort s to obtain,

written access agreements from the owner seven days prior to the

time such access is needed. Such agreements shal l provide

reasonable access for EPA, the State , and its contractors and

oversight official s and the Respondent s or their authorized

representatives . Such agreements shal l specif y that Respondent s

a re not EPA' s representative with respect to liabilit y associated

with such activities . Copies of such agreements shal l be

provided to EPA prior to Respondents initiatio n of fiel d

activities . Respondents best effort s shal l include providin g

reasonable compensatio n to any such propert y owner.

3 3. If access agreement s are not obtained withi n the time

referenced above, Respondent s shal l promptl y notif y EPA of their

failur e to obtain access. EPA may obtain access for the Respondent s in the event that Respondent s cannot obtai n such

access agreements . Respondent s agree to indemnif y EPA as

specified i n Articl e XXIV of thi s Order an d shal l reimburse EPA f or all costs and attorne y fee s incurred by EPA to obtai n access

f or the Respondent s i n accordance with Articl e XX of thi s Order. In the event any propert y owner should expressl y prohibi t access

f or samplin g purposes to Respondents , but should grant such

access to EPA , EPA may then either conduct such samplin g and

deliver such sample s to Respondent s for analysi s pursuan t to the

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Work Plan , or select an alternative sample location from vhich Respondent s can obtain access.

3 4. All result s of sampling, tests , modeling, or other data

(includin g rav data ) generated by Respondents , or on Respondents behalf , pursuant to implementatio n of this Order, shal l be

submitted to EPA in the monthly progress report as described in Articl e XII of this Order. EPA wil l make available to the Respondent s validated data generated by EPA unless it is exempt

from disclosure by any federal or state lav or regulation.

3 5. Respondent s vil l notif y EPA in vritln g at least seven days

prior to commencement of the Work under the Work Plan. At EPA's

or the State' s verbal or written request, or at the request of

EPA' s oversight assistant , Respondent s shal l allo w spli t or

duplicate samples to be taken by EPA or the State of any samples

collected by the Respondent s in implementin g thi s Order.

36. In entering into this Order, Respondents waive any

evidentiary objection s to any data gathered or generated by the Respondent s in the performance of the Work under the Work Pla n

that has been verified according to EPA-approved quality

assurance/ quality control procedures.

37. Respondents shall provide to EPA upon request, copies of

a ll non-privileged documents and informatio n within their

possession or control or that of their contractors or agents

relatin g to the implementation of this Order, including, but not

limited to, sampling, analysis , chain-of-custody records,

manifests , trucking logs , receipts , sample traffi c routing, nonprivileged correspondence, reports , or other documents or

informatio n related to the Work.

38. Respondent s may assert business confidentialit y claims

covering part or all of the documents or informatio n submitted to

E PA under thi s Order to the extent permitted by § 104(e)(7 ) of CERCLA , 42 U.S.C . S 9604(e)(7) . Such claims shal l be asserted in

the manner described by 40 C.F.R . § 2.203(b ) and substantiated at

the time the claim is made. Documents or informatio n determined

to be confidential by EPA wil l be afforde d the protectio n

specified in 40 C.F.R . Part 2, Subpar t B. If n o claim of

confidentialit y accompanies document s or informatio n when they

a re submitted to EPA, or if EPA has notifie d Responden t that the

documents or informatio n are not confidentia l under the standards

of § 104(e)(7 ) of CERCLA , 42 U.S.C . § 960-He)(7) , the publi c ma y

be given access to such document s or informatio n without furthe r

notice to Respondents .

3 9. No claim of confidentialit y shal l be made with respect to

a n y data, including, but not limited to, al l sampling,

analytical , monitoring, hydrogeologic, scientific , chemical, or

engineerin g data and material s or informatio n submitted pursuan t

to'thi s Order.

1 1
4 0. Respondent s shal l cooperate i n EPA' s community relation s

activities as appropriat e and necessary for the Site , Includin g

t he making of presentation s concerning the Work done under the Order.

4 1. Respondent s shal l also make available to EPA, for purposes

of investigation , Informatio n gathering, or testimony , its

employees , agents, or representatives with knowledge of relevant

fact s concerning the performance of the Work.

4 2. The contents of the Administrative Record concerning this Order shal l be compiled in accordance vith applicabl e lav.

XIV . DESIGNATE D PROJECT COORDINATOR S

4 3. Documents includin g reports, approvals , disapprovals , and

other correspondence which must be submitted under this Order,

shal l be hand-delivered, or sent by overnight courier, or sent by

certified mail , return receipt requested, to the followin g

addressees or to any other addressees which EPA or Respondent s

designate in writing:

a. Documents to be submitted to EPA shal l be sent in

triplicat e to:

K e n Wangerud (8HWM-SR ) Remedial Project Manager E PA Region VII I

9 99 18th Street , Suite 500 Denver, CO 80202-2405

b. Documents to be submitted to Respondent s shal l be

sent to:

Michael G. Lee Project Manager Res-ASARCO Join t Venture P. 0. Box 936 Leadville , CO 80461

Marcel DeGuire Presiden t Resurrectio n Minin g Compan y O ne United Bank Center

1700 Lincol n Stree t Denver, CO 80202

c. Documents to be submitted to the State :

R on Abel Stat e Projec t Office r Colorado Departmen t of Healt h Hazardous Material s Wast e Managemen t Divisio n

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4210 East 11th Avenue Denver, CO 80220

(Deliver y by first-clas s mail only , three copies )

(Tim e critical documents vil l continue to be

delivered by courier)

44. On or before the effectiv e date of this Order, EPA and,

collectively , Respondent s shal l each designate their own Project Coordinator. Each Project Coordinator shall be responsible for

overseeing the implementatio n of this Order. To the maximum

extent possible, communications between EPA and Respondent s shal l

be directed to the Project Coordinator by mail , with copies to

such other persons as EPA may designate. Communications include,

but are not limited to, all documents, reports , approvals , and

other correspondence submitted under thi s Order.

45. EPA and Respondent s each have the right to change their

respective Projec t Coordinator. The other part y must be notified

in writin g at least seven days prior to the change.

4 6. EPA' s Project Coordinator(s ) shal l have the authority

vested in the Remedial Project Manager and the On-Scene Coordinator b y the NCP. EPA' s Project Coordinator or it s

oversight assistant may be present during the performance by Respondents of the activities described in the attached Work Plan . The responsibilities of the EPA Project Coordinator or its

oversight assistant will include recording the status of the Work, verifyin g that the Work performed is consistent with the Work Plan , and working directl y with the Res-ASARCO Project Coordinator in implementin g the attached Work Plan.

47. EPA may arrange for assistance in its oversight and review

of the conduct of the Work. The oversight assistant may observe

the Work and make inquiries in the absence of the EPA Projec t Coordinator.

X V . OTHER APPLICABL E LAW S

48. All activities undertaken by Respondent s shal l be in

compliance with al l Federal , Stat e an d local laws an d

regulations , includin g permit requirements, unles s an exemptio n

i s provided by § 121(e ) of CERCLA , 42 U.S.C . § 9621. Respondent s

shal l identif y an d obtain al l permits , licenses , an d approval s

required for performanc e of work i n sufficien t time to perfor m

t he Work as scheduled.

XVI . RECORD PRESERVATIOK

4 9. Al l records an d document s in Respondents possessio n that

relat e in any way to the Sit e shal l be preserved whil e thi s Order

is in effec t and for a minimum of six years afte r commencement of

terminatio n of thi s Decree. Respondent s shal l acquire and retain

copies of all documents that relate to the Sit e and are in the

possessio n of their employees , agents , accountants , contractors ,

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or attorneys . Afte r thi s six-year period. Respondent s shal l

notif y EPA at least 90 days before the documents are scheduled to

be destroyed. If EPA requests that the documents be saved. Respondent s shal l give EPA the documents or copies of the

documents at no cost to EPA.

XVII . DISPUT E RESOLUTION

50. Any dispute s concerning activities or deliverables

required under thi s Order, for which disput e resolutio n has been

expressl y provided, shal l be resolved as follows : If Respondent s

object to any EPA notice of disapproval or requirement made

pursuant to this Order, Respondent s shal l notif y EPA' s Project Coordinator in writin g of their objection s within seven days of

receipt of the disapproval notice or requirement. Respondents written objection s shall defin e the dispute , state the basis of Respondents objections , and be sent certified mail , return

receipt requested, to the EPA Projec t Coordinator. EPA and the Respondent s then have an additional seven days to reach

agreement. Respondents shal l proceed i n accordance with EPA' s

final decision regardin g the matter in dispute , unless , within

seven days after EPA' s final decision i s served upon Respondents , Respondent s petitio n the Court appointed Special Master, Mr. Richard L. Dana or his designated alternate, to hear the

dispute and issue a final determination of the issue(s ) in

dispute. The parties shal l abide by the final decision of the Special Master.

51. Respondent s are not relieved of their obligation s to

perform and conduct activities and submit deliverables on the

schedule set forth in the Work Plan , while a matter is pendin g in

disput e resolution. The invocation of dispute resolutio n does

n ot stay stipulated penaltie s under thi s Order.

XVIII . STIPULATE D PENALTIE S

5 2. For each day Respondent s fai l to complete the actions

required by thi s Order, as set'fort h in the schedule, Exhibi t 2,

or fai l to timel y submit monthl y reports required i n Articl e XII,

paragraph 29b, above, Respondent s shal l be liable for stipulated

penalties , subject to the provision s of Articl e XIX , Force Majeure , in the discretio n of EPA based on the fact s and

circumstances involved.

5 3. Stipulate d penaltie s for the delay s specifie d i n

paragraph 52 above shal l accrue on the firs t day of such failure ,

even in the event Respondent s in good fait h contest any such

failur e through invocation of disput e resolution , unles s Respondent s receive a favorabl e decisio n fro m the Specia l Master .

14
a. Monthl y Reports.

Period of Failur e to Complet e Penalt y per Violation/Da y

1st through 5th day $ 1,000

6th through 10th day $ 2,000

11th day and beyond $ 3,000 ••»

b. Violation s of Exhibit 2.

Period of Schedule Failur e Penalt y per Violation/Da y

1st through 14th day $ 5,000

15th through 30th day $ 10,000

31st day and beyond $ 15,000

c. Delay by EPA. In the event Respondent s receive no

notice of deficienc y withi n 10 days of the date of alleged

deficien t conduct, then stipulated penalties shal l not accrue

prior to the date, if any, that EPA shall suppl y vritten notice

to the Respondent s of the asserted deficienc y as set forth in

this paragraph.

5 4. In event of Respondents obligation s to pay stipulated

penalties , Respondent s shal l make payment by cashier or certified

check payable to "Hazardous Substance Superfund" to:

Mello n Bank E PA Region VII I Attn : Superfun d Accountin g P. 0. Box 360859M Pittsburgh, PA 15251

Checks shal l identif y the name of the Site , the Sit e

identificatio n number, and the EPA docket number of this Order

a nd shal l identif y the payment as "Stipulated Penalties." A copy

of the check and transmittal letter, if any, shal l be sent

simultaneousl y to the EPA Projec t Coordinator.

5 5. Respondent s shal l pay interest on any unpaid balance,

which shal l begin to accrue at the end of the 30-day period, at

t he rate established by the Departmen t of Treasur y pursuan t to 30 U.S.C . § 3717. Respondent s shal l furthe r pa y a handlin g charcr<?

of one percent , to be assessed at the end of each 31-da y period,

a nd a six percent per annum penalt y charge, to be assessed if the

penalt y is not paid in ful l withi n 90 day s afte r it is due.

5 6. The stipulated penaltie s provision s do not preclude EPA fro m pursuin g any other remedies or sanction s which are availabl e

to EPA because of the Respondents failur e to compl y with thi s Order. Payment of stipulated penaltie s does not alter Respondents obligatio n to complet e performanc e under thi s Order.

15
XIX . FORCE HAJEUR E

5 7. "Force majeure," for purposes of this Order, is defined as

any event arising from causes beyond the control of Respondents

or of any entit y controlled by Respondents , includin g their

contractors and subcontractors, that delay s the timel y

performance of any obligatio n under this Order notwithstandin g Respondents best effort s to avoid the delay . The requirement

that Respondent s exercise "best effort s to avoid the delay"

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 (a) as it is occurring and (b)

followin g the potential force majeure event, such that the dela y

is minimized to the greatest extent practicable. Example s of

events that are not force majeure events include, but are not

limited to, increased costs or expenses of any of the Work to be

performed under thi s Order, the financial difficult y of Respondent s to perfor m such work, or failur e of a contractor or

subcontractor to perfor m Respondents obligation s under this Order. In the specifi c circumstances of the date and schedule of

t he Work under this Order for the Leadville , Colorado area, force

majeure may include adverse weather conditions which

significantl y prevent conduct of any of the Work as set forth in

t he schedule and Work Plan .

58. If any event occurs or has occurred that may dela y the

performance of any obligatio n under this Order, whether or not

caused by a force majeure event. Respondents shall notif y by

telephon e the Project Coordinator, or in his or her absence, the Director of the Hazardous Waste Management Division, EPA, Region VIII, within 24 hours of when the Respondent s knew that the event

might cause a delay . Withi n 5 days afte r Respondent s knew that

the event might cause a delay . Respondent s shal l provide in

writin g (a ) the reasons for the delay ; (b ) the anticipated

duratio n of the delay ; (c) all actions taken or to be taken to

prevent or minimize the delay ; (d) a schedule for implementatio n

of any measures to be taken to mitigate the effec t of the delay ;

a nd (e) a statement as to whether, in the opinio n of Respondents ,

such event may cause or contribute to an endangerment to public

health, welfare , or the environment. Respondent s shal l exercise

best effort s to avoid or minimize any dela y and any effect s of a delay . Failur e to compl y with the above requirements shal l

preclude Respondent s fro m assertin g an y claim of forc e majeure .

5 9. If EPA agrees that the dela y or anticipated dela y i s

attributabl e to forc e majeure , the time for performanc e of the

obligation s under thi s Order that are directl y affecte d by the

forc e majeure event shal l be extended by agreement of the

parties , pursuan t to Articl e XXV of thi s Order, for a period of

time not to exceed the actual duratio n of the dela y caused by the

forc e majeure event. An extensio n of the time for performanc e of

t he obligatio n directl y affecte d b y the forc e majeure event shal l

not, of itself , extend the time for performance of any subsequent

obligation .

16
6 0. If EPA does not agree in good fait h that the dela y or

anticipated dela y has been or wil l be caused by a force majeure

event or does not agree with Respondents on the length of the

extension, EPA wil l reject Respondents force majeure claim or

claim for extension, as the case may be.

X X. REIMBURSEMENT OF RESPONS E COSTS

61. Afte r the end of each calendar year in which this Order is

in effect , EPA shal l submit to Respondent s an accounting of

response costs incurred by the United State s in connection with

this Order. Such costs shal l include .only those costs properl y

documented which are recoverable under CERCLA and the KCP . Withi n 60 days of the receipt of each accounting. Respondent s

shal l reimburse the United State s for al l uncontested response

costs.

)

62. Respondent s may contest payment of any cost which they

believe to be not recoverable by the United State s or the EPA under CERCLA and/or the NCP . The written request for such

dispute resolution shall specificall y identif y the contested

costs and provide a detailed explanatio n of the basis for the

objection . Respondents in such event shal l bear their burdens of

proof or in going forward as governed by applicabl e law.

63. If any dispute over costs is resolved before payment is

due, the amount due will be adjusted as necessary. If the

disput e is not resolved before payment is due, Respondent shal l

proceed pursuant to the dispute resolution process to resolve the

matter. If Respondents do not prevail in all or part of the

dispute, Respondents shal l pay the response costs plus interest

determined through the dispute resolution process. Respondent s

shal l transmit such amounts to EPA within 60 days afte r the

completio n of disput e resolution.

6 4. For all payment s under thi s article. Respondent s shal l

remit a certified or cashier' s check, made payable to the

"Hazardous Substance Superfund, " to the followin g address:

Mello n Bank E PA Region VII I Attn : Superfun d Accountin g P. 0. Box 360859M Pittsburgh, PA 15251

or other such addres s as EPA may designat e in writing. Payment s

must be designated as "Response Costs—Californi a Gulch Site" and

shal l reference the payer' s name an d address , the EPA site

identificatio n number (Sit e No. 29) , an d the docket number of

thi s Order. Copie s of the transmittal letter and check shal l be

sent to the EPA Projec t Coordinator at the time of payment .

6 5. If payment is.not received by EPA when payment is due,

interest shal l accrue from the date of the transmittal of the

17
accounting by EPA for the costs specified. Interes t shal l accrue

on the unpaid balance unti l such costs and accrued interest have

been paid in full . The interest rate shall be the rate specified

f or interest on investments of the Hazardous Substances Superfun d

in § 107(a ) of CERCLA, 42 U.S.C . § 9607(a) . Interest vill be

compounded annually . On October 1 of each subsequent fiscal

year, any unpaid balance vill begin accruing interest at a nev

rate to be determined by the Secretar y of the Treasury .

6 6. The United State s reserves its right s to bring an action

against the Respondents to enforce the cost reimbursement

provisions of thi s Order and to seek penaltie s pursuant to § 109

of CERCLA , 42 U.S.C . § 9609. EPA also reserves its right s to

recover any past or futur e costs not reimbursed or accrued under

this Order.

XXI. RESERVATIONS OF RIGHT S

67. Except as expressl y provided in this Order, each party

reserves all rights and defense s it may have. Nothin g in this Order shal l affec t EPA' s right to seek injunctive relief ,

stipulated penalties , statutor y penalties , and/or punitive

damages, nor preclude the United State s from takin g action to

enforce this Order, nor from taking any action pursuant to CERCLA

or any other available legal authority.

68. Nothin g in this Order shall waive or otherwise affec t any

right s or defense s Respondents have under CERCLA to contest any

liability , includin g but not limited to defense s under 42 U.S.C . § 9607(b) , inclusive of all subparagraphs . Further, nothing in

this Order waives or otherwise affect s the right s of Respondent s

to seek contribution from any other person who is liable or

potentiall y liable under CERCLA , 42 U.S.C . § 9607(a) , as is also

s et forth in the Act at 42 U.S.C . § 96l3(f ) an d (g), inclusive of

a l l subparagraphs .

6 9. Upo n terminatio n of thi s Order, Respondent s shal l have

resolved their liabilit y to EPA for the Work performed by Respondent s pursuant to thi s Order. Respondent s are not released

from liability , if any, for any actions taken beyond the scope of

thi s Order regardin g removals , other response actions , includin g

but not limited to any remedial action, activities arisin g

pursuant to § 121(c ) of CERCLA, 42 U.S.C . § 962i(c) , or paymen t

of response costs properl y recoverable but not reimbursed under

thi s Order.

XXII . DISCLAIMER S

7 0. The execution and implementatio n of thi s Order by Respondent s does no t necessaril y indicat e agreement with EPA' s Finding s of Fact and Conclusion s of Law, nor with factual

statement s contained in the Work Plan , includin g but not limited

18
to the narrative sections of the said Pla n (Section s t.O through

1.4, inclusive). Furthermore, the participatio n of Respondents

in thi s Order shal l not be considered an admission of liabilit y

and is not admissible in evidence against Respondent s in any

judicial or administrative proceeding other than a proceedin g by

t he United States , includin g EPA , to enforce this Order or a judgmen t relatin g to it. Respondent s retain their right s to

assert claims against other potentiall y responsible parties

concerning the Work performed pursuant to this Order.

71. Nothin g in thi s Order is intended to release any claims ,

causes of action, or demands in lav or equity of any part y to the Order against any person not subject to thi s Order for any

liabilit y arising out of or in any way relatin g to the site.

XXIII . OTHER CLAIM S

7 2. In entering into thi s Order, Respondent s waive any right

to seek reimbursement under § 106(b ) of CERCLA , 42 U.S.C . § 9606(b ) for the Work. Respondent s also waive any right to

present a claim under § 111 or § 112 of CERCLA , 42 U.S.C . § 9611

or £ 9612 for the Work. Thi s Order does not constitute any

decision o n preauthorizatio n of funds under § I11(a)(2> of CERCLA , 42 U.S.C . § 9611(a)(2) . Respondent s further waive an y

statutory and common law claim against the United State s

including, but not limited to, contribution and counterclaims,

relatin g to or arising out of performance of the Work.

73. Except as provided in this Order, nothing in this Order

shal l constitute or be construed as a release from any claim,

cause of action, or demand in law or equity against any person,

firm , partnership, subsidiary , or corporation for an y liabilit y

it may have arisin g out of or relatin g in any way to the

generation, storage, treatment , handling, transportation ,

release, or disposal of any hazardous substances, pollutants , or

contaminants foun d at, taken to, or taken from the site.

7 4. Respondent s shal l bear their own costs and attorney s fees .

XXIV . INDEMNIFICATIO N

7 5. The United State s shal l not be liabl e for an y injur y or

damages to persons or propert y resultin g fro m acts or omissions

of the Respondent s or their contractors in implementin g the

requirements of thi s Order.

7 6. Respondent s agree to indemnif y an d hold the United State s Government , it s agencies, departments , agents , an d employee s

harmles s fro m an y an d al l claims or causes of actio n arisin g fro m

or on account of negligen t acts or omissions of Respondents ,

their employees , agents , servants , receivers, successors, or •

assigns , or any persons including, but not limited to, firms ,

corporations , subsidiaries , and contractors , in carryin g out

activitie s under thi s Order. The United 'States Government or an y

19
agency or authorized representative thereof shal l not be asserted

as a party to any contract entered into by Respondents in

carrying out activities under thi s Order.

XXV . EFFECTIV E DAT E AN D SUBSEQUEN T MODIFICATION

77. The effectiv e date of this Order shal l be the date it is

signed by EPA.

-v.

78. Thi s Order may be amended by mutual agreement of EPA and Respondents. Amendments shal l be in writing and shal l be

effectiv e vhen signed by EPA. EPA Project Coordinators do not

have the authority to sign amendments to the Order.

79. No informal advice, guidance, suggestions, assurances, or

comments by EPA or its authorized representatives shal l modif y

the terms and conditions of this Order or relieve Respondent s of

their obligation s under thi s Order, includin g their obligation s

to obtain formal approvals . An y deliverables , plans , technical

memoranda, reports (other than progress reports) , specifications ,

schedules , and the Work required by this Order are, upon vritten

approval by EPA, incorporated into this Order. Any noncompliance with such EPA-approved documents shal l be considered a violation of this Order.

XXVI . TERMINATION AN D SATISFACTION

80. Respondents shall submit the final report to EPA documentin g the performance of the Work required by the Work Pla n

a nd this Order as provided in Article XII. EPA shal l notif y Respondent s of its decision acceptin g or rejectin g such final

report. EPA' s acceptance of the final report shal l terminate

thi s Order. The provision s of this Articl e XXVI shal l not be

subject t o Articl e XVI I an d XVII I herein. EPA' s acceptance o f

t he fina l report shal l not, however, terminate Respondents obligatio n t o compl y with Article s II , XVI , XX , XXIII , an d XXI V

of this Order.

--*

8 1. EPA' s decision i n approvin g or disapprovin g Respondents fina l report due under thi s Order shal l be issued promptl y but in

no event later than six months from the date of receipt of the

report .

XXVII . SIGNATORIE S

8 2. The undersigned representative s of Respondent s certif y

that they are full y authorized to enter into the terms and

condition s of thi s Order and to execute and legall y bind such

part y to thi s document.

83. Thi s Order may be executed in any counterparts , each of

which when executed and delivered to EPA shal l be deemed to be an

20
original , but such counterpart s shal l together constitute one and

the same document.

IT IS SO ORDERED AND AGREED:

UNITE D STATE S ENVIRONMENTA L PROTECTION AGENC Y

Da ted

RESURRECTION MININ G COMPAN Y By___________________ Dated___ ____ ___

ASARCO INCORPORATE D

By. Dated

RES-ASARC O JOIN T VENTUR E

By__ Dated

21
original , but such counterpart s shal l together constitute one and

the same document.

IT I S S O ORDERED AND AGREED :

UNITE D STATE S ENVIRONMENTA L PROTECTION AGENC Y

BY. Dated

RESURRECTION MININ G COMPAN Y

By_ Dated_______________ Marcel DeGuire, President

ASARC O INCORPORATE D

By___________________ Dated_______________

RES-ASARC O JOIN T VENTUR E

By__ Dated

21
original , but such counterpart s shal l together constitute one and

the same document.

IT I S S O ORDERED AND AGREED :

UNITE D STATE S ENVIRONMENTA L PROTECTION AGENC Y

By. Dated

RESURRECTION MININ G COMPAN Y

By. Dated

ASARCO INCORPORATE D

Dated

RES-ASARC O JOIN T VENTUR E

Dated •* R. J. Kupstfff f l/ice-I^resi'den t Asarco, Inc.

21
Exhibit 2

SCHEDUL E

SOILS , SAMPLING , AN D AI R MONITORIN G ACTIVITIE S

CALIFORNI A GULC H SIT E LEADVILL E COLORADO

RESIDENTIA L SOIL S SAMPLIN G

Sept . 28, 1990

Oct. 05, 1990

Oct. 12, 1990

Oct. 19, 1990

Dec. 01, 1990

A ir Monitorin g

251 soil samples collected

5 0% soil s samples collected

7 5% soil samples collected

Soi l samplin g activities

completed

Complete analytical data package

delivered to EPA

Sept . 29, 1990

Oct. 11, 1990

Oct. 29, 1990

Dec. 31, 1991

Access to station locations

obtained

Obtain all air monitoring

equipment and commence air

monitorin g statio n installatio n

Completio n of statio n

installatio n and commencement of

a ir monitorin g activities

Summar y Analysi s Report

(Se e page 2-9 o f Exhibi t 1 )