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ADMINISTRATIVE RECOR D

UNITED STATES CM C Dl AM ENVIRONMENTAL PROTECTION AGENCY PlL u rLMIM REGION VIII , -, -, I O^» / _______. ._

IN THE HATTER OF: )

ASARCO INCORPORATED, NEWMONT MINING ) DOCKET NO. CtrffC k (AXi< 1

CORPORATION, RES-ASARCO JOINT ) VENTURE , AND RESURRECTION MINING ) COMPANY, )) RESPONDENTS . )) PROCEEDING UNDER SECTION 106 ) OF THE COMPREHENSIVE ENVIRONMENTAL ) RESPONSE , COMPENSATION, AND ) LIABILITY ACT of 1980, 42 U.S.C . )

6 9606 (1982) , AS AMENDED. )

ADMINISTRATIVE ORDER

FOR: YAK TUNNEL OPERABLE UNIT REMEDIAL DESIGN/REMEDIAL ACTION

TABLE OF CONTENTS

I. JURISDICTION .................................

I I. PARTIES BOUND ....................................... 3

III. DEFINITIONS .............................

'IV. FINDING S OF FAC T .................................... 

V. CONCLUSIONS OF LAW .................................. 5

V I. DETERMINATIONS ...........................

VII. NOTIC E TO THE STATE ................................. 6

VIII. WORK TO BE PERFORMED ................................ 6

I X. IMPLEMENTATION REQUIREMENTS ..................

X. REPORTING REQUIREMENTS .............................. 8

X I. PROJECT MANAGERS ................................... 1

XII . SITE ACCESS AND SAMPLING ........................... 12

XIII . DOCUMENTATION, AVAILABILIT Y OF INFORMATION, AND RECORD RETENTION ................................... 
XIV . MODIFICATIONS TO ORDER ............................

X V. EFFECTIVE DATE AND CONFERENCE OPPORTUNITY .......... 

XVI . OTHER MATTERS ...................................... 17

XVII . ENFORCEMENT ........................................ 18
I . JURISDICTION

Thi s Administrative Order (Order) is issued pursuant to the

authority vested in the President of the United States by section

106(a ) of the Comprehensive Environmental Response, Compensation,

a nd 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, 100 Stat . 1613 (1986 ) (CERCLA) . Thi s authority

was delegated to the Administrator of the United States Environmental Protection Agency (EPA) on January 23, 1987, by Executive Order No. 12,580, 52 Fed. Reg. 2,923 (1987) , and has

been further delegated to the Director of the Hazardous Waste Management Division of EPA Region VIII.

I I . PARTIES BOUND

Thi s Order shall appl y to and be binding upon ASARCO Incorporated, Nevmont Minin g Corporation, Res-ASARCO Join t Venture, and Resurrection Mining Company, and upon all directors,

officers , principals , employees, agents, successors, and assigns

of the Respondents. The Respondents shall each be responsible

for carrying out all actions required of the Respondents by the

terms and conditions of this Order.

III . DEFINITION S

F or purposes of this Order, the followin g terms shall have

the meanings set forth below:

A. "Contractor" means any person, includin g the

contractors, subcontractors, or agents, retained or hired by the Respondents to undertake any Work under this Order.

B. "Day" means calendar day.

C. "Description of Work" or "DOWH means the document

entitled "Description of Work: Remedial Design/Remedial Action

f or the Yak Tunnel Operable Unit," dated March 29, 1989, attached

hereto as Exhibit 1.

D. "NCP" means the National Oil and Hazardous Substances Pollutio n Contingency Plan , 40 C.F.R . Part 300.

E. "Operations and Maintenance" means long-term operations

and maintenance of the remedial action, conduct of the monitoring

program, and implementation of the contingency pla n as set forth

in the ROD and detailed in the DOW. F. "Order" means this Order, the exhibits attached to this Order, the EPA-approved Work Plan , and all revisions to the Work Plan incorporated into this Order according to the procedures set

forth herein.
G. "Remedial action" means the Work described in Section IV

of the DOW. H. "Remedial design" means the Work described in Section I II of this DOW. I. "ROD" means the Record of Decision documenting the

selection of a remedial alternative for the Yak Tunnel attached

as Exhibit 2 and the modificatio n to the ROD attached as Exhibit

3.

H. "Task" means any action to be taken by the Respondents

pursuant to this Order.

I. "Work" means all tasks required by this Order, including

all activities related to the performance of such activities.

J. "Work Plan" means the document, including any modification s thereto, submitted by the Respondents which sets

forth the methods and schedule by which the Respondents vill

accomplish the Work. As defined in the DOW, this document shall

include the Work Plan itself , the Related Plans , and the Design Plan s and Reports. K. All other items, not otherwise defined herein, shall

have their ordinary meaning unless defined in CERCLA or the NCP,

in which case the CERCLA or NCP definitio n shall control.

I V. FINDINGS OF FACT

A. The California Gulch site (site ) is a CERCLA National Priorities List site located in and near Leadvilie, Colorado

(Figure 1). EPA has completed a Phase I remedial investigation

and a feasibilit y study evaluating alternative remedies for the Y ak Tunnel , the firs t remedial operable unit for the site. On March 29, 1988, EPA signed a Record of Decision (ROD) for the Yak Tunnel Operable Unit , California Gulch Site, Leadville, Colorado,

documenting the selection of a remedy for the Yak Tunnel Operable Unit . As a result of negotiations with the Respondents, EPA modified the ROD on March 23, 1989.

B. The Yak Tunnel , a tunnel connecting numerous underground

mine workings, discharges water containing various metals,

includin g cadmium, copper, lead, and zinc. These metals

contribute to contamination of surface water in California Gulch

and the Arkansas River, the shallow ground water zone associated

with California Gulch, and sediments along California Gulch and

the Arkansas River. Cadmium, copper, lead, and zinc are defined

as hazardous substances pursuant to section 101(14 ) of CERCLA, 42 U.S.C . § 9601(14) , because of their toxic effect s on humans

a nd aquatic life .
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C. The ROD, as modified, sets forth the remedy selected by E PA to abate the threats to public health and welfare and the

environment from the Yak Tunnel discharge. Thi s remedy includes

construction of a surge pond, pluggin g of the tunnel, measures to

minimize the inflo w of water into the tunnel system, a water

treatment facility , a monitoring program, operations and

maintenance, and a contingency plan. The surge pond has been

constructed by ASARCO Incorporated, Res-ASARCO Joint Venture, and Resurrection Minin g Company pursuant to Administrative Order Docket No. CERCLA VIII 88-11.

D. The Respondents are each owners or operators or past

owners or operators of the Yak Tunnel and/or related facilities . ASARCO Incorporated is a New Jersey Corporation with its

corporate headquarters in the State of New York. Newmont Minin g Corporation is a Delaware corporation with its corporate

headquarters in the State of Colorado. Res-ASARCO Joint Venture

is a join t venture of ASARCO Incorporated and Resurrection Minin g Company. Resurrection Mining Company is a Delaware corporation

with corporate headquarters in the State of New York.

V. CONCLUSIONS OF LAW

Based on the preceding Findings of Fact , the ROD, and the

administrative record for the Yak Tunnel Operable Unit , EPA has made the followin g Conclusions of Law:

1. The Yak Tunnel is a "facility " as defined in section

101(9 ) of CERCLA, 42 U.S.C . § 9601(9) ;

2. The Respondents are "owners or operators" as defined in

section 101(20 ) of CERCLA, 42 U.S.C . S 9601(20) ;

3. The Respondents are "persons" as defined in section

101(21 ) of CERCLA, 42 U.S.C . § 9601(21) ;

4. Cadmium, copper, lead, and zinc are "hazardous

substances" as defined in section 101(14 ) of CERCLA, 42 U.S.C . § 9601(14) ; and

5. The past, present, and potential future discharge of

hazardous substances from the Yak Tunnel constitutes an actual

and threatened "release" as defined in section 101(22 ) of CERCLA,

42 U.S.C . § 9601(22) .

V I . DETERMINATION S

Based on the preceding Findings of Fact and Conclusions of L aw and the administrative record for the Yak Tunnel Operable Unit , EPA has determined that:
1. The actual or threatened release of hazardous substances

from the Yak Tunnel may present an imminent and substantial

endangerment to the public health or welfare or the environment;

and

2. The actions required by this Order are necessary to

protect public health and welfare and the environment.

VII . NOTIC E T O THE STAT E

E PA has notified the State of Colorado (State ) of this

action pursuant to section 106(a ) of CERCLA, 42 U.S.C . i 9606(a) ,

and has provided notice to the State of and an opportunity to

participate in negotiations regarding the scope of this response

action pursuant to section 121(£ ) of CERCLA, 42 U.S.C . E 9621(f) .

VIII. WORK TO BE PERFORMED

A. It is hereby ORDERED that the Respondents shall plan ,

implement, perform, and complete all actions required by this Order in accordance with the standards, criteria, specifications ,

requirements, and schedule set forth herein.

B. The Respondents shall undertake the Work described in

the DOW, attached hereto as Exhibit 1. All Work under this Order

is subject to oversight by and the prior approval of EPA, in

consultation with the State. The Respondents shall obtain EPA

approval for all documents and reports described in the DOW and

all proposed modification s to documents or reports previously

approved by EPA. Commencing or undertaking any remedial action

without prior EFA approval is a violation of this Order.

C. The plans , documents, and reports required by the DOW shall be subject to review and modificatio n by EPA, in

consultation with the State . In the event of any disapproval , E PA shall specify , in writing, any deficiencies and required

modification s to such documents. Unles s otherwise specified in

the schedule, the Respondents shall , within 14 days of receipt of

any EPA disapproval , submit a revised document incorporating or

addressing all of EPA's modifications . At the time a revised

document is submitted, the Respondents shall submit a cover

letter describing their response to each EPA modificatio n and a certificatio n that no other changes were made other than those modification s required by EPA. Failure to incorporate or address

any EPA modificatio n in accordance with these procedures is a violation of this Order. EPA may unilaterally modif y any plan,

document, or report if the Respondents do not make the required

modifications .
I X . IMPLEMENTATIO N REQUIREMENTS———— — ———————— — A. All Work shall be conducted and completed in accordance

with CERCLA, the NCP, EPA guidance, and any amendments thereto

which become effectiv e prior to the date of completion of Work

under this Order. The Respondents shall be responsible for

identifyin g and using other guidelines , policies , procedures, and

information that may be appropriate for performin g the Work. B. All Work shall be consistent with the ROD, including the

requirements of all applicable or relevant and appropriate Federal and State lavs and regulations (ARARs) to the extent

required by Appendix C of the ROD.

C. Activities undertaken by Respondents shall be in

compliance with all other Federal , State , and local lavs and

regulations , includin g permit requirements, unless an exemption

from such permit requirement is provided by Section 121(e ) of CERCLA, 42 U.S.C . § 9621(e) . The Respondents shall identif y and

obtain all permits, licenses, and approval s required for

performance of the Work in sufficien t time to perform Work as

scheduled.

D. To ensure that implementation of the remedy does not

cause injur y to vested vater rights or decreed conditional vater

rights, the Respondents shall comply vith all applicable

provisions of Colorado lav before undertaking any remedial action

which involves the interception, withdrawal, diversion, storage,

capture, possession or control of any ground water or surface

water. Compliance with Colorado law may include, but is not

limited to, obtaining approval of a pla n of substitute suppl y

from the State Engineer and obtaining approval of a pla n for

augmentation of water from the Water Court for Water Division No.

2.

E. The remedy includes baseline measurements of the quality

of the Parkville Water District drinking water supply , an ongoing monitoring program to predict and detect any adverse hydrologic

changes, and a contingency pla n to address such changes. If the

quality of any Parkville Water District drinking water suppl y

source, as measured at current intake points , deteriorates as a result of the remedial action, the Respondents shall implement

appropriate contingency measures to restore the drinking water

suppl y to its baseline quality level through tasks including, but

not limited to, treating the water, augmenting the deteriorated

water suppl y or, subject to EPA approval in consultation with the State , modifyin g the remedial action to eliminate the source of

contamination.

F. In accordance with the schedule set forth in the DOW,

the Respondents shall complete a survey pursuant to 36 C.F.R . § 800.4(b ) to identif y historic properties which may be affected
by implementation of the Work. The Respondents shall assist EFA

in the consultation process described in 36 C.F.R . Part 800 to

develop ways to avoid or reduce adverse effect s on historic

resources and shall implement all mitigation measures Identified

through the consultation process.

G. The Respondents shall employ sound scientific,

engineering, and construction practices in performin g Work

pursuant to this Order. All tasks performed shall be under the

direction and supervision of qualified personnel or contractors

with experience in the types of tasks required for implementation

of the Work, e.g., tunnel plugging, water treatment, and

monitoring. The Respondents shall provide a copy of this Order

and any relevant modification s to this Order to any contractor

retained or hired to perform any Work and shall condition the

performance of Work on compliance with the relevant requirements

of this Order.

H. On or before the effective date of this Order, the Respondents shall notif y EPA and the State, in writing, of the

name, title , and qualification s of the personnel and contractors

to be used in carrying out the Work. The Respondents shall

demonstrate to EPA that each proposed contractor possesses the

qualifications , experience, technical capability , and management

capability necessary to perform work in a safe and timely manner,

consistent with the requirements of this Order. If EPA disapproves of any contractor, the Respondents shall within 14

days submit another contractor and the informatio n outlined

above. The Respondents shall amend this notice in writing not

later than seven days prior to any change in contractor.

I. The Respondents shall employ a full-time , onsite

inspector during construction. The onsite inspector shall verif y

compliance with all environmental and technical requirements;

review all daily reports and construction activities to verif y

that all work complies with the EPA-approved design; note and

resolve all discrepancies immediately; and review and initial the

daily , weekly, and monthly reports described below.

X. REPORTING REQUIREMENTS

A. During the course of Work under this Order, the Respondents shall submit the followin g reports to EPA and the State .

1. Monthly Progress Reports. The Respondents shall

submit monthly progress reports containing the followin g

information :

a. A description of the actions taken toward

achieving compliance with this Order, includin g

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plane and actions completed, during

t he reporting period;

b. A description and estimate of the percentage of

t he Work completed;

c. A description of any activities that deviated from

or vere carried out in addition to those provided

for in the Work Plan , which occurred during the

reporting period;

d. Summaries of significan t findings pertaining to

the remedial design or remedial action during the

reporting period;

e. Summaries of all changes made in the remedial

design or remedial action during the previous month;

f. A description of unresolved problems or potential

problems encountered during the reporting period

that may cause a performance delay and a description of effort s made to mitigate those

delays;

g. Change orders, nonconformance reports, claims made, and actions taken to rectif y problems;

h. Changes in personnel during the reporting period;

1. Projected vork for the next reporting period,

includin g a schedule by week of design and

construction activities for the next month; and

j. Except for data submitted in accordance with the Operations and Maintenance Reports described

belov, copies of inspection logs and results of

all sampling, tests, and other data (includin g

validated analytical data with supportin g

documentation on Contract Laboratory Program Form I ' s or i n a similar format ) received or produced

by the Respondents during the course of vork

during the previous month.

These reports shall be submitted to EPA and the State on or

before the 10th day of each month from the effective date of the Order and each month thereafter until EPA accepts the constructed

project as described in the DOW.

2. Daily and Weekly Construction Reports. During

construction, the Respondents shall prepare daily and veekly

reports on construction activities discussing, at a minimum, the
dail y activities, field adjustments , change orders, summaries of

problems and actions to rectif y problems, and such information as

is customary in the industry. The dail y reports and the weekly

report shall be compiled and delivered to EPA and the State each

week.

3. Operations and Maintenance (O&M) Reports. The Respondents shall prepare and submit ongoing O&M Reports to EPA

and the State . These reports shall include, at a minimum, the

followin g elements:

a. A description of O&M activities performed during

t he reporting period;

b. A description of the performance of each component

of the remedial action, including.a summary of the

monitoring data demonstrating the performance of

the surge pond, treatment facility , and any sludge

disposal facility , and their effectivenes s in

meeting the chemical-specific and action-specific ARARs identified in the ROD;

c. A description and summary of the results of all

monitoring performed in connection with the

remedy;

d. A statistical evaluation of the monitoring data

and a conclusion as to whether the results exceed

action triggers established in the Baseline Monitoring Report, necessitating the

implementation of contingency measures;

e. Identificatio n of any problems or potential

problems and a description of all steps taken or

to be taken to rectif y the problems;

f. An appendix containing all validated data and

supportin g documentation on Contract Laboratory Program Form I' s or i n a similar format collected

during the reporting period; and

g. Copies of any O&M training materials and a record

of employee attendance at training sessions.

The O&M Reports shall be submitted quarterly on or

before the 10th day of January , April , July , and October.

4. Five-Year Review Reports. The Respondents shall

prepare and submit the five-year review reports described in the DOW to EPA and the State . These Reports shall be due on September 7, 1993, and on the same date every five years

thereafter.

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B. All documents required to be submitted pursuant to this Order shall be hand delivered or sent by first-clas s mail to the

followin g persons or to such other persons as the parties

hereafter may designate in writing:

1. Documents submitted to EPA shall be sent in

quadruplicate to:

Remedial Project Manager California Gulch Site (8HHM-SR ) U.S . Environmental Protection Agency Region VII I

999 18th Street , Suite 500 Denver, Colorado 80202-2405

2. Documents submitted to EPA shall also be submitted

in triplicate to:

California Gulch Site Manager Colorado Department of Health Hazardous Material s and Waste Management Division

4210 East 11th Avenue Denver, Colorado 80220

and in duplicate to:

California Gulch Lead Attorney Department of Lav CERCLA Litigatio n Section One Civic Center Plaza

1560 Broadway, Suite 250 Denver, Colorado 80202

C. In the event of a significan t change in conditions or

emergency circumstances relatin g to public health or welfare or

the environment related to Work under this Order, the Respondents Project Manager shall immediately notif y the EPA Project Coordinator, or if unavailable, his or her supervisor.

D. The Construction Completion Report and the Remedial Action Report described in the DOW and the Five-Year Review Reports described in Section X(A)(4) of this Order shall contain

the followin g statement which shall be signed by a responsible

corporate office r of the Respondents: "I certif y that the Informatio n contained in or accompanying this (submission) is

true, accurate, and complete. As to (the ) (those ) identified

portion(s ) of this (submission) (document) for which I cannot

personall y verif y (its ) (their ) truth and accuracy, I certif y as

t he company official having supervisory responsibility for the

person(s ) who, acting under my direct instructions, made the

verificatio n that this information is true, accurate, and

11
complete." The term "responsible corporate officer" means (1) a president , secretary, treasurer or vice-president of the

corporation in charge of a principal business function , or any

other person who performs similar polic y or decisionmaking

function s for the corporation, or (2) the manager of one or more manufacturing, production, or operating facilities , if the

authority to sign documents has been assigned or delegated to the

manager in accordance with corporate procedures.

X I. PROJECT MANAGERS

A. On or before the effectiv e date of this Order, the Respondents shall designate a technical Project Manager and an Alternate Project Manager and shall notif y EPA and the State in

writing of their names, titles , affiliations , addresses, and

telephon e numbers. The Project Manager shall be responsible for

overseeing implementation of this Order. To the maximum extent

possible, all communications concerning technical aspects of this Order shal l be coordinated through the Project Manager for the Respondents and Project Managers designated by EPA and/or the State . The Respondents Alternate Project Manager shall receive

communications if the Project Manager is unavailable.

B. The Respondents may replace their Project Manager or Alternate Project Manager by notifyin g the other Project Managers

in writing of the replacement' s name, title, affiliation ,

address, and telephone number not later than five days prior to

t he effectiv e date of replacement.

C. EPA is the lead agency for implementation of Work under

this Order. The EPA Project Manager has the authority vested in

the On-Scene Manager and the Remedial Project Manager under the NCP. Thi s authority includes, but is not limited to, power to

halt , conduct, or direct work pursuant to this Order. The EPA Project Manager may halt work that is Inconsistent with CERCLA,

the NCP, or this Order, including any activity that has not been

approved by EPA in consultation with the State. The absence of

the EPA Project Manager from the Site shall not be a cause for

stoppage of Work.

D. The State through its Project Manager or any other

chosen representative shal l be entitled to ful l and meaningful

participatio n in any technical discussions regarding the

implementation of the Work prescribed by this Order.

XII . SIT E ACCES S AN D SAMPLIN G

A. The Respondents shall in no way hinder or impede access

of EPA, the State , or their authorized representatives to the

portion of the site where Work is being conducted under this Order. The Respondents shall not prohibit such persons from

being present on the site at any and all times and from observing

12
any and all activities conducted pursuant to this Order. All

persons who engage in activity under this Order shall be

available to and shall cooperate with EPA in its oversight of Work under this Order.

B. To the extent that access to or easements over property

other than property owned by the Respondents is required for the

proper and complete performance of Work under this Order

r

 the Respondents shall use their best effort s to obtain written access

agreements, rights-of-way , or easements for access to such

property. Access agreements are appropriate for short-term

entry; for long-term monitoring and operations and maintenance,

rights-of-way or easements shall be obtained. Such agreements

shal l ensure access for EPA, the State , and their authorized

representatives and any rights-of-way or easements shall run with

t he land. Respondents shall obtain access agreements, rights-ofway, or easements no later than 30 days prior to the time that

access to particular property is firs t needed. If the Respondents are unable within that time frame to obtain such

access for themselves, EPA, the State , and their authorized

representatives, they shall within three days thereafter notif y E PA in writing of their failure to obtain access and the effort s made to obtain it.

C. Nothin g herein shall limit or otherwise affec t EPA' s or

t he State' s right of entry pursuant to any applicable statute,

regulation, or permit.

D. The Respondents shall provide EPA and the State written

notice at least seven days prior to collectin g samples pursuant

to this Order. Upon request, the Respondents shall provide EPA,

the State , and their authorized representatives with spli t or

duplicate samples.

E. The Respondents shall ensure that EPA and State

personnel and their authorized representatives are allowed access

to any laboratory utilized by Respondents in implementing this Order. Such laboratories shall perform analyses according to EPA methods or other methods deemed satisfactor y to EPA. If a nonE PA method is proposed, the Respondents shall submit all

protocols to be used for analysis to EPA and the State at least

30 days prior to the commencement of analyses. The Respondents

shall also ensure that the laboratories participate in a quality

assurance/quality control (QA/QC) program equivalent to that

which is followed by EPA. In addition , upon request, the Respondents shall have such laboratory analyze samples submitted

by EPA for quality-assurance monitoring.

F. The Respondents shall:

1. Conduct periodicall y conduct an audit of any

laboratory that will analyze samples under this Order during the

13
time the laboratory is conducting such analyses. Such audit will

be conducted to verif y analytical capabilit y and QA/QC

procedures. Audit reports must be submitted to EPA and the State within 15 days of completion of the audit. Corrective actions

are to be taken immediately. The Respondents must also report

serious deficiencies to EPA and the State within 24 hours of the

time the Respondents learn of the deficiency . Laboratories

participatin g in the Superfun d Contract Laboratory Program need

not be audited.

2. Conduct at least one field audit per year during

samplin g activities to verif y that field samplers are correctly

followin g samplin g procedures described in the Samplin g and Analysi s Plan. Corrective actions are to be taken immediately to

correct any deficiencies . Respondents must also report serious

deficiencies to EPA and the State within 24 hours of the time Respondents learn of the deficiency .

3. Provide prompt data validation of analyses done by

a ny laboratory used. Thi s data validation shall determine data

utilit y and shall be performed in accordance with the Functional Guidelines for Data Review for data derived by Contract Laboratory Program methods. If another method is used, the data

validation shall be performed in accordance with the QA/QC data

validation criteria set forth in that method. For methods

lacking QA/QC data validation protocols, the Respondents must

establish validation criteria such as those in Section 8 of the

E PA Series Methods in 40 C.F.R . Part 136. The appropriate

quality assurance data validation summary reports shall be

submitted, along with sample data and summary sheets, to EPA and

the State at the time final sample result s are provided.

XIII . DOCUMENTATION , AVAILABILIT Y OF INFORMATION , A ND RECORD RETENTION

A. The Respondents shall maintain documentation pursuant to Section 300.69 of the NCP , 40 C.F.R . § 300.69, to support all

actions taken and to provide the basis for cost recovery. To

this end, the Respondents shall establish a document control

system with the followin g objectives:

1. Creation of a central fil e containing all

documents pertainin g to Work under this Order;

2. Organization of the documents to facilitate

retrieval of information ;

3. Segregatio n of documents containing informatio n

which the Respondents claim is privileged or

confidential; and

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4. Establishment of procedures to ensure that all

documents are routinely placed in the central

file .

B. In addition , the Respondents shall prepare and

periodicall y update an inventory of all documents contained in

t he central file . The inventory shall contain for each document

( 1) the document date, (2 ) the author(s ) including title an d

affiliation , (3 ) the recipient(s ) including titl e an d

affiliation , (4) the document title or subject , (5) a summary of

i ts contents, and (6) the number of pages. The Respondents shall

submit the document inventory or an update to EPA and the State

every quarter during the period of performance under this Order. T he Respondents shall provide EPA and the State with copies of

documents upon request.

C. The Respondents shall establish special procedures vith

respect to management of all data collected under this Order. T he Respondents shal l maintain, in an organized filin g system,

t he followin g documents, including:

1. All field measurements, logbooks, and notebooks;

2. Laboratory purge files , includin g but not limited

t o, sample tags, chain-of-custody records, copies

of sample tracking records, analysts logbook

pages, instrument logbook pages (includin g

instrument conditions) , bench sheets, instrument

readout records, computer printouts,

chromatographic charts, rav data summaries,

correspondence, memoranda, and document inventory;

3. Data validation reports; and

4. All test result s of construction testing.

D. The Respondents shall also use an automated data

management system to facilitat e standardization of reporting and

evaluation of data. Thi s system shall be designed to prevent the

introduction of errors or the loss or misinterpretation of data.

E. For the period during which this Order is in effect , the Respondents shall permit EPA, the State , and their authorized

representatives to inspect and copy all non-privileged records,

files , maps, and other documents, writings, or depictions

pertainin g to implementation of this Order. Any trade secret

material claimed by the Respondents as "confidential business

information" under 40 C.F.R . Part 2 shall be kept in a separate

file . If EPA, the State , or their authorized representatives

take notes or copy informatio n or documents from the confidential

file , the information or documents will be disclosed to the

15
public only in accordance with 40 C.F.R . Part 2 or Colo. Rev. Stat . S 24-72-204, respectively.

F. The Respondents shal l maintain a running log of

privileged documents on a document-by-document basis containing

t he date, author(s) , addressee(s) , the privilege claimed (e.g. ,

attorney work product, attorney-client), and the factual basis

f or the assertion of the privilege. The privilege log shall be

kept on fil e and available for inspection in the central fil e

described in Section XIII(A). EPA may at any time challenge

claims of privilege through negotiations or otherwise as provided

by law or the Federal Rules of Civil Procedure.

G. All records, data, factual information , and other

documents submitted by the Respondents to EPA and the State

pursuant to this Order shall be subject to public inspection

unless identified as confidential when submitted by the Respondents and determined by EPA or the State to be such, in

conformance with 40 C.F.R . Part 2 or applicable State law

respectively. The data, factual information , and documents so

identified as confidential will be disclosed only in accordance

with such EPA regulations or State law. The Respondents may

assert confidentialit y claims only in accordance with sections

104(e)(7)(E ) an d (F ) o f CERCLA, 42 U.S.C . § § 9604(e)(7)(E ) an d

(F) . H. The Respondents shall preserve during the pendency of

this Order and for a minimum of six years after the remedial

action has been completed, all records and documents in their

possession or in the possession of their divisions, employees,

agents, contractors, or attorneys which relate in any way to this Order or Work performed hereunder, notwithstanding any document

retention policy to the contrary. At the end of this six-year

period, the Respondents shall make such records available to EPA for inspection or shall provide the original or copies of such

documents to EPA. If EPA requests that some or all documents be

preserved beyond this six-year period, the Respondents shall

either comply with EPA's request or provide to EPA the original

or copies of the retained documents.

XIV . MODIFICATIONS TO ORDER

A. No oral advice, guidance, suggestions, assurances, or

comments by the United States , the State , or their authorized

representatives shal l modif y the terms or conditions

of this Order or relieve the Respondents of their obligations

under this Order.

B. If the Respondents seek to deviate from the approved Work Plan , the Respondents Project Manager shall submit a

written request to EPA outlinin g the proposed Work Plan modificatio n and the basis therefor. If EPA approves the Work

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Plan modificatio n in writing, such modificatio n shall be deemed

incorporated into this Order. Deviation from the Work Plan without EPA approval is a violation of this Order.

X V. EFFECTIVE DATE AND CONFERENCE OPPORTUNITY

A. Thi s Order shall be effective 30 days followin g the Respondents receipt of a copy this Order. The schedule for

performance of Work shall be calculated from the effective date

of this Order.

B. Withi n five days of receipt of this Order, the Respondents may request a conference vith EPA to discuss this Order, including its applicability , the appropriateness of

activities required to be undertaken, and other issues and

contentions relevant to issuance of this Order. Any request for

a conference shall be made to Elizabeth D. Mullin , Assistan t Regional Counsel, EPA Region VIII, 999 18th Street , Suite 500, Denver, Colorado 80202-2405, (303 ) 294-7188. At any such

conference, the Respondents may appear in person or through an

attorney or other designated representative. Such conference is

not, and shall not be deemed to be, an adversarial hearing or

part of a proceeding to challenge this Order, and no officia l

stenographic record of such proceeding shall be kept.

C. Withi n seven days of receipt of this Order, the Respondents shall inform EPA in writing as to whether they intend

to comply with the Order.

XVI . OTHER MATTER S

A. EPA shall make the final determination as to the

sufficienc y and/or acceptabilit y of all work conducted under this Order, includin g but not limited to each required submittal.

B. In the event that EPA determines that the activities

performed pursuant to this Order or any emergency circumstances

may pose a threat to public health or welfare or the environment,

E PA may direct the Respondents to stop further implementation of Work pursuant to this Order or may take or order further actions

to abate the threat. Thi s provision is not to be construed to

limit any powers EPA may have under CERCLA, the KCP, or any law

or regulation.

C. Nothin g herein shall preclude EPA from taking action to

enforce this Order, nor from taking any action pursuant to

sections 104, 106, 107, or 122 of CERCLA, 42 U.S.C . §§ 9604,

9606, 9607, or 9622, nor any and all actions pursuant to CERCLA

or any other available legal authority, includin g without

limitation seeking injunctive relief , monetary penalties, and

punitive damages. Nothin g herein shall preclude EPA from

undertaking any additional enforcement actions and/or other

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actions it may deem necessary for any purpose, includin g the

prevention or abatement of an imminent and substantial danger to

the public health or welfare or the environment arising from site

conditions.

D. Neither EPA nor the United States , by issuance of this Order, assumes any, liabilit y for any acts or omissions of the Respondents, nor employees, agents, contractors, or consultants

of the Respondents , in carrying out any action or activity

pursuant to this Order. Neither EPA nor the United State s shal l

be held a party to any contract entered into by the Respondent,

nor by their employees, agents, contractors, or consultants in

carrying out any action or activity pursuant to this Order.

E. Nothin g in this Order shall affec t any right, claim,

interest, defense , or cause of action of any party against any

entity not subject to this Order for any liabilit y it may have

arising from or relatin g in any way to the site. Nothin g in this Order shall be deemed to constitute a decision on

preauthorization under section 111(a)(2 ) of CERCLA, 42 U.S.C . § 961l(a)(2) . F. Nothin g in this Order shall constitute or be construed

as a satisfactio n or release from liabilit y for Respondents, nor

their agents, contractors, lessees, successors, or assigns vith

respect to any conditions or claims arising as a result of past ,

current, or future operations, ownership, or use or disposal of

hazardous substances at the site.

G. EPA reserves its rights to seek, pursuant to section 107

of CERCLA, 42 U.S.C . § 9607, recovery from the Respondents of the United States costs incurred in oversight, administration, and

enforcement of this Order, and any other past and future costs

incurred by the United States in connection with response

activities pursuant to CERCLA at the site.

H. Nothin g in this Order should be construed to release the Respondents from any liabilit y for failur e to perform the Work in

accordance with the Order, the DOW, or the EPA-approved Work Plan.

XVII . ENFORCEMENT

Any violation of this Order or any portion thereof by the Respondents shall be enforceable pursuant to sections 106(b ) and

113(b ) of CERCLA, 42 U.S.C . §§ 9606(b ) and 9613(b) . The Respondents may be subject to civil penalties of up to $25,000

p er day per violation of this Order, and/or punitive damages

(includin g treble damages) , as provided in sections 106(b ) and

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107(c)(3 ) o f CERCLA, 42 U.S.C . S i 9606(b ) an d 9607(c)(3) , fo r

failure to comply vith the terms of this Order.

IT IS SO ORDERED.

Robert L. Duprey, Earecl^pr Hazardous Waste Management Division Region VII I U.S . Environmental Protection Agency

Date of Issuance

Effectiv e Date:

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