SDMS Document ID

1020621

DOCKET NUMBER:

RESPONDENT:

EPA ATTORNEY:

ADMINISTRATIVE LAW JUDGE:

OR

PRESIDING OFFICER:

CERCLA-VIII-92-06

CALIFORNIA GULCH SUPERFUND SITE, DENVER AND RIO

GRANDE WESTERN RAILROAD

DATE OF

DOCUMENT

DESCRIPTION OF

DOCUMENT

DATE

FILED

11/21/91 ' ADMINISTRATIVE ORDER ON CONSENT FOR REMEDIAL INVESTIGATION/

FEASIBILITY STUDY 12/03/91
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION VIII

IN THE MATTER OF:

CALIFORNIA GULCH SUPERFUND SITE,

DENVER AND RIO GRANDE WESTERN

RAILROAD;

RESPONDENT.

PROCEEDING UNDER SECTIONS 104,

122 (a), AND 122 (d) (3) OF THE

COMPREHENSIVE ENVIRONMENTAL

RESPONSE, COMPENSATION AND

LIABILITY ACT, AS AMENDED

(42 U.S.C. §§ 9604, 9622 (a) ,

AND 9622(d) (3)) .

/

^' * "

CERCLA-VIII-^i-?-?

ADMINISTRATIVE ORDER ON CONSENT

FOR REMEDIAL INVESTIGATION/FEASIBILITY STUDY

[Operable Unit for Slag]
TABLE OF CONTENTS

Page

I. INTRODUCTION 1

II. JURISDICTION 1

III. PARTIES BOUND 2

IV. DEFINITIONS 3

V. STATEMENT OF PURPOSE 5

VI. FINDINGS OF FACT 5

VII. CONCLUSIONS OF LAW 10

VIII. NOTICE TO STATE 11

IX. WORK TO BE PERFORMED 12

X. MODIFICATION OF THE WORK PLAN 16

XI. QUALITY ASSURANCE 18

XII. FINAL RI/FS, PROPOSED PLAN, PUBLIC COMMENT,

RECORD OF DECISION, ADMINISTRATIVE RECORD 18

XIII. PROGRESS REPORTS AND MEETINGS 19

XIV. ACCESS, SAMPLING, AND AVAILABILITY OF

INFORMATION 21

XV. PROJECT COORDINATORS 26

XVI. OTHER APPLICABLE LAWS 28

XVII. RECORD PRESERVATION 28

XVIII. DISPUTE RESOLUTION 29

XIX. STIPULATED PENALITIES 31

XX. FORCE MAJEURE 34
XXI. REIMBURSEMENT OF RESPONSE COSTS 3(5

XXII. RESERVATION OF RIGHTS 40

XXIII. DISCLAIMERS 40

XXIV. OTHER CLAIMS 41

XXV. FINANCIAL ASSURANCE, INSURANCE, AND

INDEMNIFICATION 42

XXVI. EFFECTIVE DATE AND SUBSEQUENT MODIFICATION 44

XXVII. TERMINATION AND SATISFACTION 45

XXVIII. RELEASE AND CONTRIBUTION PROTECTION 46

XXIX. SIGNATORIES 46
I. INTRODUCTION

1. This Administrative Order on Consent (Order) is

entered into voluntarily by the United States Environmental

Protection Agency (EPA) and Denver and Rio Grande Western

Railroad Company (Respondent). This Order concerns the

performance of a remedial investigation/feasibility study

(RI/FS) on lead slag piles in the California Gulch Superfund

site (Site), and performance of specified studies on one zinc

slag pile, in Leadville by Respondent.

II. JURISDICTION

2. This Order is issued under the authority vested

in the President of the United States by sections 104, 122(a),

and 122(d)(3) of the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9604,

9622(a), and 9622(d)(3) (1982), as amended by the Superfund

Amendments and Reauthorization Act of 1986, Pub. L.

No. 99-499, 100 Stat. 1613 (1986) (CERCLA). This authority

was delegated to the Administrator of EPA on January 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 No. 14-14-C. This authority has been

further delegated to the Director of the Hazardous Waste

Management Division.

3. Respondent agrees to undertake all actions

required by this Order. In any action by EPA or the United
States to enforce terms of this Order, Respondent consents to

and agrees not to contest the authority or jurisdiction of EPA

to issue or enforce this Order, and agrees not to contest the

validity of this Order or its terms.

III. PARTIES BOUND

4. This Order shall apply to and be binding upon

EPA and shall be binding upon Respondent and its agents,

successors and assigns. Respondent is responsible for

carrying out all actions required by this Order. No change in

the ownership or corporate or other legal status of Respondent

or of the facility or site, including but not limited to, any

transfer of assets or real or personal property shall alter

Respondent's responsibilities under this Order.

5. Respondent shall provide a copy of this Order to

all contractors, subcontractors, laboratories, and consultants

retained to conduct any Work under this Order, within 14 days

after the effective date of this Order or at least 7 days

before retaining their services, whichever is later.

Respondent shall condition any such contracts upon

satisfactory compliance with this Order. Notwithstanding the

terms of any contract, Respondent is responsible for

compliance with this Order and for ensuring that its

subsidiaries, employees, contractors, consultants,

subcontractors, and agents comply with this Order.
IV. DEFINITIONS

6. Unless otherwise expressly provided herein,

terms used in this Order which are defined in CERCLA or in

regulations promulgated under CERCLA shall have the meaning

assigned to them in CERCLA or such regulations. For purposes

of this Order, the following terms shall have the meanings set

forth below.

"Contractor" means any person, including the

contractors, subcontractors, or agents, retained or

hired by Respondent to undertake any Work under this

Order.

"Day" means calendar day, unless otherwise specified.

In computing any period of time under this Order,

where the last day would fall on a Saturday, Sunday

or Federal holiday, the period shall 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 Respondent is required to submit

under the terms of this Order.

"NCP" means the National Oil and Hazardous Substances

Pollution Contingency Plan promulgated under

section 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 or modifications to

documents incorporated into this Order according to

the procedures set forth herein.

"Site" means the California Gulch Superfund site,

including the areal extent of contamination and all

suitable areas in very close proximity of the

contamination necessary for implementation of the

response action.

"Work" means all tasks Respondent is required to

perform under this Order.

"Work Plan" means the detailed work plan implementing

the requirements of this Order. The Work Plan

includes the Work Plan itself, which is attached

hereto as Exhibit 1, the sampling and analysis plan,

and any other plans or modifications thereto approved

by EPA pursuant to this Order.

"Slag" means slag from the primary processing of lead

ore.

"Zinc Slag" means slag from the primary processing of

zinc ore.

All other terms not otherwise defined herein shall have been

ordinary meaning unless defined in CERCLA or the NCP, in which

case CERCLA or NCP definitions shall control.
V. STATEMENT OF PURPOSE

7. This Order is intended to be the first step of a

three-step settlement process to settle completely all

liability of Respondent to the United States. This step

involves the conduct, with EPA oversight, of an RI/FS

consistent with CERCLA and the NCP to assess Slag piles at the

Site and evaluate alternatives to the extent necessary to

select a remedy, if appropriate. Respondent will also conduct

specified studies on one Zinc Slag pile. The parties intend

for the second step to be a partial consent decree for payment

of Denver and Rio Grande's share of past response costs

incurred by the United States. The third step will be a final

consent decree setting forth a complete settlement of the case

between the United States and Respondent.

8. The activities conducted under this Order are

subject to approval by EPA and must be sufficient to provide

(a) all necessary information for the RI/FS for Slag piles and

a record of decision for the Slag piles that is consistent

with CERCLA and the NCP, and (b) the information required for

the Zinc Slag pile. The Work under this Order shall be

conducted in compliance with CERCLA, the NCP, and all

applicable EPA guidance, policies, and procedures.

VI. FINDINGS OF FACT

Site Description and History

9. Pursuant to section 105 of CERCLA, 42 U.S.C.

§ 9605, EPA placed the site on the National Priorities List
set forth at 40 C.F.R. Part 300, Appendix B, by publication in

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

40,658, 40,670).

10. Denver and Rio Grande Western Railroad Company

(Respondent) is a Delaware Corporation with its principal

place of business in Denver, Colorado. The Site contains Slag

piles, composed primarily of calcium, magnesium, iron, and

silica, with residual heavy metals. Slag is a mineralized

byproduct resulting from the refinement of ores in blast or

reverbatory furnaces for the recovery of non-ferrous metals.

Respondent owns three slag piles at the Site. The Site also

contains at least one Zinc Slag pile.

Release or Threatened Release

11. EPA has conducted two studies of Slag. First,

CHM Hill conducted sampling and analyses of Slag in 1986.

Those activities were described in the Phase II California

Gulch Remedial Investigation, dated 1989, which stated that,

while mine waste piles typically contain the highest

concentrations of arsenic, cadmium, copper, manganese, and

lead, Slag typically contains the highest levels of iron and

zinc. Slag was also shown to contain other metals, such as

manganese, lead, copper and arsenic. The report notes that

because Slags were generally a solid mass with a low surface

area to volume ratio, they would have more limited solubility

than other mine wastes. Three types of leaching tests were
conducted on the Slag: ASTM-modified acid shake extraction,

ASTM water shake extraction, and EP toxicity. Leaching tests

showed that lead exceeded the RCRA criterion of 100 times the

drinking water standard for two of the three piles.

Second, Jacobs Engineering performed a round of

sampling and analysis in May 1989. It analyzed one Slag pile

using the three leaching tests. Those tests performed under

the sampling and analysis plan showed that none of the

contaminants of concern leached from Slag in concentrations

exceeding the RCRA criterion of 100 times the drinking water

standard. Jacobs also performed an acid-base accounting

showing that some samples have the potential to generate acid,

although others do not have this potential. Data from split

samples showed that none of the samples had this potential.

12. EPA has determined that the Site releases or has

the potential to release various metals, including arsenic,

cadmium, copper, lead and zinc as follows:

Soils in the area are predominantly of the Bross,

Leadville, Pierian, and Troutville series. Based on aerial

photograph reviews, approximately five percent of these soils

have been covered by mining or processing wastes. In and

along the California Gulch, placer mining, hydraulic mining,

and early milling practices resulted in significant alteration

of the surface materials and structure. Little is known about

the geochemistry of site soils prior to these types of mining

activities.
Surface water. The site is drained by several

gulches tributary to the Arkansas River, including: Evans,

Stray Horse, Pawnee, Airport, Georgia, Oregon, and Malta.

These gulches flow mostly in response to precipitation events

and snowmelt, and in some the flow is intermittent. Perennial

discharge is also received from the Yak Tunnel and the

Leadville Sewage Treatment Plant. Surface water acts as the

primary transport mechanism for both soluble metals and metalladen sediments from the site, which eventually reach the

Arkansas River. Water chemistry from various points within

the site is similar in major cation and anion concentration

except below the sewage treatment plant. Maximum

concentration limits (MCLs) for cadmium, lead, manganese,

sulfate and total dissolved solids (TDS) are routinely

exceeded in numerous locations. Mass loading analysis of

various stream segments shows that lead loads are not

influenced by the Yak Tunnel, but are influenced by Stray

Horse Gulch and areas of the middle California Gulch.

Cadmimum, sulfate, zinc, and manganese loads are primarily

from the Yak Tunnel, with lesser quantities from Stray Horse

Gulch and upper and middle California Gulch.

Ground Water is found in both bedrock and alluvial

systems at the California Gulch site, and recharge is

principally from infiltration, precipitation, and surface

water drainage. Ground water in upper California Gulch occurs

8
primarily in the bedrock formations including granite,

limestone, porphyry, and sandstones. Variations in ground

water quality show a strong correlation between surface waters

and shallow ground water adjacent to California Gulch. Some

impact has also been downgradient of certain mine waste piles,

though quality is affected more by depth than by location.

Ground water from many wells in the site has been shown to

exceed the MCL for cadmium, and from some wells has exceeded

the MCLs for arsenic, zinc, and other metals.

Stream sediment. Uncontrolled mine wastes from early

milling operations in upper California Gulch probably added

sediments to the lower Gulch. The sediments have been shown

to contain oxy-hydrides of iron, aluminum, and manganese that

"i

precipitate out of the surface water during low flows. These

sediments can be re-entrained during snowmelt and higher

stream velocities. One sediment sample collected during EPA's

Phase I RI exceeded the criterion for lead in an EP Toxicity

test.

Air quality data from the State has shown that the

lowest concentrations of total suspended particulates (TSP)

occur in the summer months. The secondary annual TSP standard

was exceeded in Leadville during 1981, 1984, and 1985;

however, the primary standard was not exceeded during the

period of monitoring (1981-1988). The Federal primary ambient

air standard for lead was not exceeded during the five-year

period for which lead analysis was performed.
Flora and fauna. Little is known about the

terrestrial fauna within the site boundaries, but studies have

shown that the California Gulch supports no fish and only

limited species of aquatic invertebrates. Those

macroinvertebrate species that are sensitive to lower water

quality are not found just downstream of the confluence of the

California Gulch and the Arkansas River. Diversity of

invertebrates and vertebrates is also decreased immediately

downstream of the confluence. Plant cover and forage

production has been reduced in the Arkansas River valley near

the confluence of the California Gulch and the Arkansas River.

Previous studies have shown toxic metal concentrations in

plant tissues.

The Slag piles at the Site need to be studied to

evaluate whether metals can be released to nearby surface and

vadose soils, groundwater or surface water. Transport

pathways that need to be assessed include wind dispersion,

infiltration, surface water runoff and reworking of the

surfaces.

VII. CONCLUSIONS OF LAW AND DETERMINATIONS

13. The site is a "facility" as defined in

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

14. Various metals found at the Site are "hazardous

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

§ 9601(14), or constitute "any pollutant or contaminant" that

10
may present an imminent and substantial danger to public

health or welfare under section 104(a)(l) of CERCLA, 42 U.S.C.

§ 9604(a)(1).

15. EPA has determined that the past, present, or

potential future migration of hazardous substances described

in this Order constitutes an actual and/or threatened

"release" as defined in section 101(22) of CERCLA, 42 U.S.C.

§ 9601(22).

16. Respondent is a person as defined in

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

17. EPA has determined that Respondent is a

responsible party under sections 104, 107, and 122 of CERCLA,

42 U.S.C. §§ 9604, 9607, and 9622.

18. EPA has determined that the actions required by

this Order are necessary to protect the public health or

welfare or the environment and are consistent with CERCLA and

the NCP.

VIII. NOTICE TO STATE

19. By providing a copy of this Order to the State

of Colorado, EPA has notified the State that this Order is

being issued and that EPA is the lead agency for coordinating,

overseeing, and enforcing the response action required by the

Order. EPA will provide for state involvement with

development of the RI/FS in accordance with section 121(f) of

CERCLA, 42 U.S.C. § 9621(f).

11
20. Any document, notice, material, or deliverable

which Respondent is required under this Order to submit to

EPA, shall also be submitted by Respondent to the State.

21. The State and its authorized representatives

shall be provided the same rights of access to areas to which

this Order applies as is provided for EPA in Section XIV.

IX. WORK TO BE PERFORMED

22. Respondent shall conduct activities and submit

deliverables as provided by this Order and the attached Work

Plan, which is incorporated by reference. All Work performed

is to be conducted in accordance with the schedules,

standards, specifications, and other requirements of this

Order, and Work Plan prepared hereunder, as initially approved

or modified by EPA, and as may be amended or modified by EPA

from time to time in accordance with this Order.

23. All Work performed under this Order shall be

done under the direction and supervision of qualified

personnel. Respondent has provided the name of the

contractor, Morrison-Knudsen Corporation, which shall be used

to carry out the Work. EPA approves the use of this

contractor. Within 30 days of the effective date of this

Order, and before work begins, Respondent shall notify EPA in

writing of the names, titles, and qualifications of other

personnel, including contractors, subcontractors, consultants

and laboratories, to be used in carrying out such work.

12
During the course of the Work, Respondent shall notify EPA in

writing 7 days in advance of any changes or additions in the

personnel used to carry out such Work, providing their names,

titles, and qualifications. EPA shall have the same right to

approve changes and additions to personnel as it has hereunder

regarding the initial notification.

24. While awaiting EPA approval for any deliverable

Respondent shall proceed with all other tasks and activities

which may be conducted independently of such deliverable, in

accordance with the schedule set forth in this Order. EPA

reserves the right to stop Respondent from proceeding further,

subject to dispute resolution, either temporarily or

permanently, on any task, activity, or deliverable at any

point during the RI/FS.

25. EPA reserves the right to comment on, modify,

and direct changes consistent with the Work Plan for all

deliverables, subject to dispute resolution. When EPA

comments on or directs changes to deliverables, the following

procedures shall apply:

(a) Respondent must fully correct all

deficiencies and incorporate and integrate all information and

comments, as directed by EPA, within fourteen (14) days of

receipt of EPA comments, unless otherwise specified in any

schedule in the Work Plan approved hereunder, otherwise agreed

to by the parties, or as specified in paragraph (b).

13
(b) Respondent may request, and EPA shall

grant, a meeting to discuss any comments or instructions from

EPA, prior to resubmitting the deliverable. If EPA, in

consultation with the State of Colorado, agrees that its

comments or instructions are incorrect or should be modified,

Respondent may resubmit the deliverable in accordance with

EPA's decision within 14 days after receipt of the decision.

(c) At the time any revised deliverable is

submitted, Respondent shall submit a cover letter describing

how each substantive EPA comment was addressed, and a

description of any additional substantive changes or additions

in the resubmittal along with a justification for those

changes or additions. The cover letter shall also include a

certification that no substantive changes other than those

identified in the cover letter were made. Failure to address

EPA comments or directions as described in this paragraph, or

failure to identify additional substantive changes or

additions is a violation of this Order.

(d) If Respondent disagrees with the

substantive changes required by EPA, Respondent may include a

disclaimer in the cover letter identifying the portion(s) of

such documents with which the Respondent disagrees and the

reasons for the disagreement. Whenever and to whomever the

document is disseminated, EPA will include such cover letter

with the deliverable. Such cover letter shall be included in

14
the Administrative Record for the Site as provided under

Section XII.

26. If Respondent fails to comply with the preceding

paragraph, EPA retains the right, subject to dispute

resolution, to seek stipulated or statutory penalties, perform

its own studies, or complete or modify the deliverable or any

portion thereof and seek reimbursement from Respondent for its

costs. To the extent that EPA conducts or takes over some of

the Work, Respondent shall incorporate and integrate

information supplied by EPA into any report on such Work.

27. Neither failure of EPA to expressly approve or

disapprove of Respondent's submissions within the specified

time periods, nor the absence of comments, shall be construed

as approval by EPA. Whether or not EPA gives express approval

for Respondent's deliverables, Respondent is responsible for

preparing deliverables acceptable to EPA.

28. In the event EPA determines that Respondent has

failed to implement any provisions of the Work in an adequate

or timely manner, EPA may perform any and all portions of the

Work as EPA determines necessary. Respondent may invoke the

procedures set forth in Section XVIII (Dispute Resolution) to

dispute EPA's determination that the Respondent failed to

implement a provision of the Work in an adequate or timely

manner as arbitrary and capricious or otherwise not in

accordance with law. Such dispute shall be resolved on the

15
administrative record. Costs incurred by the United States in

performing the Work pursuant to this Paragraph shall be

considered Future Response Costs that Respondent shall pay

pursuant to Section XXI (Reimbursement of Response Costs).

X. MODIFICATION OF THE WORK PLAN

29. If, at any time during the RI/FS process,

Respondent identifies a need for additional data, Respondent

shall submit a memorandum documenting the need for additional

data to the EPA Project Coordinator within 21 days of such

identification. EPA, in its discretion, will determine

whether the additional data will be incorporated into

deliverables. In any event, Respondent retains the right to

collect such data and submit it for inclusion in the

administrative record.

30. In the event of unanticipated or changed

circumstances at the site, Respondent shall notify the EPA

Project Coordinator by telephone at 293-1649 of the

unanticipated or changed circumstances by the end of the next

business day after the discovery. If the unanticipated or

changed circumstances pose an immediate threat to human health

or welfare or the environment, Respondent shall call the EPA

Project Coordinator at 293-1649 or, if on a weekend, and the

Project Coordinator is not in his office, at the Project

Coordinator's home at 766-0935 immediately. If EPA determines

that the immediate threat or the unanticipated changed

16
circumstances warrant changes in the Work to be performed, EPA

may modify or amend the work plan consistent with the purpose

of this Order accordingly or take other actions authorized by

CERCLA or the NCP. Respondent shall perform the work as

modified or amended. This paragraph is subject to dispute

resolution.

31. EPA may determine that work in addition to tasks

identified in the approved work plan may be necessary to

accomplish the purposes of the RI/FS for Slag piles as set

forth in Section V of this Order. EPA may request that the

Respondent perform such a complete RI/FS for Slag, by setting

forth in writing the basis and reasons for EPA's determination

that additional work is necessary. EPA will not request or

require that additional work be performed for the Zinc Slag

pile or any other Zinc Slag piles. Respondent shall have the

opportunity to meet with EPA within five (5) business days of

Respondent's receipt of EPA's request for additional work to

discuss the additional work EPA has requested and to propose

alternatives. Respondent shall either confirm its willingness

to perform the additional work in writing to EPA within

10 days of receipt of the EPA request or invoke dispute

resolution.

32. A refusal by Respondent to undertake the

additional work not within the scope of the Work Plan shall

not constitute a violation of this Order. The decision as to

17
whether additional work is within the scope of the Work Plan

is subject to dispute resolution.

33. If the additional work is within the scope of

the work plan, subject to dispute resolution, Respondent shall

implement the additional tasks which EPA determines are

necessary. The additional work shall be completed according

to the standards, specifications, and schedule set forth or

approved by EPA in a written modification to the work plan or

written work plan supplement. EPA reserves the right, subject

to dispute resolution, to conduct the work itself at any

point, and to seek reimbursement from Respondent.

XI. QUALITY ASSURANCE

34. Respondent shall use quality assurance, quality

control, and chain-of-custody procedures as required by the

Work Plan.

XII. FINAL RI/F8. PROPOSED PLAN. PUBLIC COMMENT,

RECORD OF DECISION. ADMINISTRATIVE RECORD

35. EPA is responsible for the release to the public

of the RI/FS report for Slag and the preparation and release

to the public of the proposed plan and record of decision for

Slag in accordance with CERCLA and the NCP. Respondent shall

prepare a draft RI report, and a draft FS report for lead

Slag. The schedule for these drafts and EPA comments on the

drafts shall be included in the Work Plan.

18
36. EPA shall provide Respondent with a copy of the

final RI/FS report, proposed plan and record of decision for

Slag.

37. EPA will determine the contents of the

administrative record file for selection of the remedial

action for Slag. Upon EPA request or at its option,

Respondent shall submit to EPA nonprivileged documents

developed during the course of the RI/FS upon which selection

of the response action may be based. Upon EPA request or at

its option, Respondent shall provide copies of plans, task

memoranda (including documentation of field modifications),

recommendations for further action, quality assurance

memoranda and audits, raw data, field notes, laboratory

analytical reports and other nonprivileged reports.

XIII. PROGRESS REPORTS AND MEETINGS

38. During the course of work under this Order,

Respondent shall submit the following reports to EPA:

(a) Monthly Progress Reports. Respondent shall

prepare monthly progress reports containing the following

information:

1. Actions taken to comply with this

Order, including plans and actions completed during the

preceding month;

2. Activities during the preceding month

that deviated from or were carried out in addition to those

planned;

19
3. All problems encountered and any

anticipated problems, any actual or anticipated delays, and

solutions developed and implemented to address any actual or

anticipated problems or delays;

4. Work planned for the next two months

with schedules relating such work to the overall project; and

5. All results of sampling and tests and

all other data collected or received by Respondent.

Respondent shall submit these reports to EPA on or before the

7th day of each month during which this Order is in effect.

(b) Final Report. Respondent shall submit a

final report documenting the work performed under this Order

within 30 days of completion of the RI/FS.

39. Respondent shall make presentations at and

participate in meetings at the request and after reasonable

notice of EPA during the initiation, conduct and completion of

the RI/FS. In addition to discussion of the technical aspects

of the RI/FS, topics may include anticipated problems or new

issues. Meetings will be scheduled at EPA's discretion during

normal business hours.

40. EPA is responsible for conducting community

relations with respect to the site. Respondent shall

cooperate with EPA in providing information regarding

implementation of this Order to the public. If requested by

EPA, Respondent shall participate in the preparation of such

20
information for dissemination to the public and in public

meetings which may be held or sponsored by EPA to explain

activities at or relating to the site.

XIV. ACCESS. SAMPLING, AND AVAILABILITY OF INFORMATION

41. Upon reasonable notice to Respondent, EPA and

its authorized representatives may enter and freely move about

all property at the site and off-site areas where Work, if

any, is being performed, for the purposes of inspecting

conditions, activities, the results of activities, records,

operating logs, and contracts related to the Site or

Respondent and its contractor(s) pursuant to this Order;

reviewing the progress of Respondent in carrying out the terms

of this Order; conducting tests as EPA or its authorized

representatives deem necessary; using a camera, sound

recording device, or other recording equipment; and verifying

the data submitted to EPA by Respondent. If EPA and its

authorized representatives conduct any tests, including

sampling, they must provide at least 48 hours notice to

Respondent. Respondent shall allow these persons to inspect

and copy all non-privileged records, files, photographs,

documents, sampling and monitoring data, and other writings

related to work undertaken in carrying out this Order.

Nothing herein shall be interpreted as limiting or affecting

any EPA representative's right of entry or inspection

authority under federal law.

21
42. If for proper performance of the Work, it is

necessary to enter property owned in whole or in part by

parties other than those bound by this Order, Respondent will

obtain, or use its best efforts to obtain, site access

agreements from the owner 15 days prior to the time such

access is needed. Such agreements shall provide access for

EPA, its contractors, and oversight officials, the State of

Colorado and its contractors, and the Respondent or its

authorized representatives. Such agreements shall specify

that Respondent is not EPA's representatives with respect to

liability associated with site activities. Copies of such

agreements shall be provided to EPA prior to Respondent's

initiation of field activities. The requests for site access

dated August 2, 1991, are deemed acceptable to EPA under this

paragraph.

43. If access agreements are not obtained within the

time referenced above, Respondent shall promptly notify EPA of

its failure to obtain access. EPA may obtain access for the

Respondent, perform those tasks or activities with EPA

contractors, or terminate the Order in the event that

Respondent cannot obtain access agreements. In the event that

EPA performs those tasks or activities with EPA contractors

and does not terminate the Order, Respondent shall perform all

other activities not requiring access to that site, and shall

reimburse EPA for all costs incurred that are not inconsistent

22
with the NCP in performing such activities. Respondent

additionally shall integrate the results of any such tasks

undertaken by EPA into its reports and deliverables.

Respondent shall reimburse EPA for all costs and attorneys

fees not inconsistent with the NCP incurred by the United

States in obtaining access for the Respondent in accordance

with Section XXI of this Order.

44. All results of sampling, or other data

(including raw data) generated by Respondent, or on

Respondent's behalf, during implementation of this Order,

shall be submitted to EPA in the monthly progress report as

described in Section XIII of this Order. The status of

modelling and ongoing tests will also be described in this

report. EPA will make available to the Respondent validated

data generated by EPA unless it is exempt from disclosure by

any federal or state law or regulation.

45. Respondent will notify EPA in writing at least

7 days prior to mobilizing or conducting significant field

events. At the verbal or written request of EPA or its

authorized representatives, Respondent shall allow split or

duplicate samples to be taken by EPA or its authorized

representatives of any samples collected by the Respondent in

implementing this Order.

46. By entering into this Order, Respondent waives

any evidentiary objections to data gathered and generated by

23
Respondent in the performance of the work that has been

verified according to EPA approved qualify assurance/quality

control procedures. If Respondent objects to any other data,

relating to the RI/FS, Respondent shall submit to EPA a report

that identifies and explains its objections, describes the

acceptable uses of the data, if any, and identifies any

limitations to the use of the data. The report must be

submitted to EPA within 30 days of the monthly progress report

containing the data or within 30 days of receipt of the data

from EPA, whichever is applicable.

47. Respondent shall provide to EPA, upon request,

copies of all nonprivileged documents and information within

its possession or control or that of its contractors or agents

relating to the implementation of this Order, including, but

not limited to, sampling, analysis, chain-of-custody records,

manifests, trucking logs, receipts, reports, correspondence,

official field logs of Respondent's on-site representatives,

or other documents or information related to the Work.

Respondent shall also make available to EPA, for purposes of

investigation or information gathering, its employees, agents,

or representatives with knowledge of relevant facts concerning

the performance of the Work.

48. Respondent may assert business confidentiality

claims covering part or all of the documents or information

submitted to EPA under this Order to the extent permitted by

24
section 104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7). Such

claims shall 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 information determined to be confidential by EPA

will be afforded the protection specified in 40 C.F.R. Part 2,

Subpart B. If no claim of confidentiality accompanies

documents or information when they are submitted to EPA, or if

EPA has notified Respondent that the documents or information

are not confidential under the standards of section 104(e)(7)

of CERCLA, 42 U.S.C. § 9604(e)(7), the public may be given

access to such documents or information without further notice

to Respondent.

49. No claim of confidentiality shall be made with

respect to any data, including, but not limited to, all

sampling, analytical, monitoring, hydrogeologic, scientific,

chemical, or engineering data and materials or information

submitted pursuant to this Order, or any other documents or

information evidencing conditions at or around the Site.

50. During the course of the Work, other responsible

parties, conducting separate but related RI/FS work, will be

generating data, drafts and reports that must be coordinated

with Respondent's Work. In order to facilitate this

coordination, all such responsible parties will be ordered to

provide copies of their respective workplans (including

schedules) to one another within five days of the effective

25
date of their respective orders, and to cooperate with one

another in providing access to data and reports that are

relevant to one another's work. Accordingly, Respondent D&RG

will provide to Respondents Newmont/Resurrection, Asarco, and

Hecla within five days of the effective date of this Order at

least one copy of Respondent D&RG's workplan and schedule for

performance of the RI/FS Work. Respondent D&RG will cooperate

with Respondents Newmont/Resurrection, Asarco, and Hecla in

its performance of the Work, including providing reasonable

access to data and reports generated by Respondent D&RG in the

course of the Work.

XV. PROJECT COORDINATORS

51. EPA and Respondent shall each designate their

own Project Coordinator.

a. The EPA Project Coordinator is:

Jim Hanley (8HWM-SR)

Remedial Project Manager

EPA Region VIII

999 18th Street, Suite 500

Denver, CO 80202-2405

293-1649

b. The Respondent's Project Coordinator is:

Anne P. Veigel

Morrison-Knudsen Corp.

7100 East Belleview, Suite 300

Englewood, Colorado 80111

793-5000

The Respondent's Project Coordinator shall be responsible for

overseeing the implementation of this Order. EPA and

26
Respondent each has the right to change their respective

Project Coordinator. The other party must be notified in

writing of the name, title, address and telephone number of

the new Project Coordinator at least 7 days prior to the

change.

52. To the maximum extent possible, communications

between EPA and Respondent shall 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 this Order. Documents

including reports, approvals, disapprovals, and other

correspondence which must be submitted under this Order shall

be hand-delivered or sent by certified mail, return receipt

requested, to the Project Coordinators or to any other persons

which EPA or Respondents designate in writing. Documents to

be submitted to EPA shall be sent in triplicate.

53. The EPA Project Coordinator shall have the

authority vested in the Remedial Project Manager and the

On-Scene Coordinator by the NCP. In addition, the EPA Project

Coordinator shall have the authority, consistent with the NCP,

to halt any work required by this Order and to take any

response action s/he determines is necessary under CERCLA and

the NCP. The absence of the EPA Project Coordinator from the

area under study pursuant to this Order shall not be cause for

the stoppage or delay or work.

27
54. EPA may arrange for assistance in its oversight

and review of the conduct of the RI/FS, as required by

section 104(a) of CERCLA, 42 U.S.C. § 9604(a). EPA's

authorized representative may observe work and make inquiries

in the absence of EPA, but is not authorized to modify the

requirements of this Order.

XVI. OTHER APPLICABLE LAWS

55. All activities undertaken by Respondent shall be

in compliance with all Federal, State and local laws and

regulations, including permit requirements, unless an

exemption is provided by section 121(e) of CERCLA, 42 U.S.C.

§ 9621(e). Respondent shall identify and obtain all permits,

licenses, and approvals required for performance of Work in

sufficient time to perform Work as scheduled.

XVII. RECORD PRESERVATION

56. All records and documents in Respondent's

possession that relate in any way to the Site shall be

preserved while this Order is in eff.ect and for a minimum of

10 years after commencement of termination of this Order.

Respondent shall acquire and retain copies of all documents

that relate to the Site and are in the possession of its

employees, agents, accountants, contractors or attorneys.

After this 10-year period, Respondent shall notify EPA at

least 90 days before the documents are scheduled to be

destroyed. If EPA requests that the documents be saved,

28
Respondent shall, at no cost to EPA, provide EPA with nonprivileged documents or copies of the documents.

57. The Respondent may assert that certain

documents, records and other information are privileged under

the attorney-client privilege or any other privilege

recognized by federal law. If the Respondent asserts such a

privilege, it shall provide EPA with the following: (1) the

title of the document, record or information; (2) the date of

the document, record or information; (3) the name and title of

the author of the document, record or information; (4) the

name and title of each addressee and recipient; (5) a

description of the subject of the document, record or

information; and (6) the privilege asserted by Respondent.

XVIII. DISPUTE RESOLUTION

58. Any disputes concerning activities or

deliverables required under this Order, for which dispute

resolution has been expressly provided, shall be resolved as

follows: If Respondent objects to any EPA notice of

disapproval or requirement made pursuant to this Order,

Respondent shall notify the EPA Project Coordinator in writing

of its objections within 14 days of receipt of the disapproval

notice or requirement. Respondent's written objections shall

define the dispute, state the basis of Respondent's objections

and be sent certified mail, return receipt requested, to the

EPA Project Coordinator. EPA and the Respondent then shall

29
have an additional 14 days to reach agreement unless mutually

extended by the parties. If requested, Mediator Richard Dana

can act as a conciliator and can make recommendations to EPA

within this 14-day period. If EPA concurs with the position

of Respondent, Respondent shall be so notified in writing, and

this Order shall be modified to include any necessary

extensions of time or modifications of work. If EPA does not

concur with the position of Respondent, Respondent may request

a conference with the Director of the Hazardous Waste

Management Division, Region VIII, within five business days of

the decision. EPA's decisions shall be in writing and shall

be based upon, and not inconsistent with the terms of the

Order, the Work Plan, the NCP, and CERCLA. Within five

business days after meeting, EPA shall make a final agency

decision and shall provide written notification of such

resolution to Respondent.

59. Respondent shall proceed in accordance with

EPA's final decision regarding the matter in dispute,

regardless of whether Respondent agrees with the decision. If

Respondent does not agree to perform or does not actually

perform the work in accordance with EPA's final decision, EPA

reserves the right in its sole discretion to conduct the work

itself, to seek reimbursement from Respondent, to seek

enforcement of this Order, to seek stipulated penalties and/or

to seek any other appropriate relief.

30
60. Respondent is not relieved of its obligations to

perform and conduct activities and submit deliverables on the

schedule set forth in Work Plan while a matter is pending in

dispute resolution, except as to work which is affected by the

dispute and except as otherwise agreed by the parties. The

invocation of dispute resolution does not stay the accrual of

stipulated penalties under this Order.

XIX. STIPULATED PENALTIES

61. For each day that Respondent fails to comply

with the tasks identified in Paragraph 62, Respondent shall be

liable for those stipulated penalties set forth in that

paragraph. EPA shall provide written notice of the violation

or failure to perform. Penalties begin to accrue on the day

when performance is due and extend through the period of

correction. Penalties shall not accrue until after the

provisions of Paragraphs 25(a) and (b) are exhausted. For the

period of time between the occurrence of a violation and

Respondent's receipt of written notice that a violation has

occurred, penalties will accrue at one/half the amount

specified in Paragraph 62.

62. For those activities described in the

subparagraphs to this paragraph, Respondent shall pay the sums

set forth below as stipulated penalties.

(a) Tier 1 tasks are the following:

- failure to submit monthly progress reports pursuant

to Paragraph 38 (a);

31
- failure to use subcontractors approved by EPA

pursuant to Paragraph 23;

- failure to provide for EPA access pursuant to

Paragraph 41;

- failure to provide for third party duplication

or split sampling pursuant to Paragraph 45;

- failure to submit documents upon request pursuant

to Paragraph 47;

1st through 14th days $ 250 per day

15th through 30th days $ 500 per day

31st day and beyond $ 750 per day

(b) Tier 2 tasks are the following:

- failure to complete all deliverables in a timely

manner pursuant to the schedule approved in the

workplan;

- failure to provide data to EPA pursuant to

Paragraph 44;

1st through 14th day $1,000 per day

15th through 30th day $2,500 per day

31st day and beyond $5,000 per day

(c) EPA has the discretion to reduce or

eliminate stipulated penalties.

63. Respondent shall make all payments by forwarding

a certified or cashiers check payable to the "Hazardous

Substance Superfund" to:

Mellon Bank

EPA Region VIII

Attn: Superfund Accounting

P.O. BOX 360859M

Pittsburgh, PA 15251

Checks shall identify the name of the site, the site

identification number and the EPA docket number of this Order,

and shall identify the payment as "Stipulated Penalties." A

copy of the check and transmittal letter, if any, shall be

sent simultaneously to the EPA Project Coordinator.

32
64. Respondent shall pay interest on any unpaid

balance, which shall begin to accrue at the end of the 30-day

period, at the rate established by the Department of Treasury

pursuant to 30 U.S.C. § 3717. Respondent shall further pay a

handling charge of 1 percent, to be assessed at the end of

each 31-day period and a 6 percent per annum penalty charge,

to be assessed if the penalty is not paid in full within 90

days after it is due.

65. Respondent may dispute EPA's right to the amount

of penalties assessed by invoking the dispute resolution

procedures under Section XVIII herein. Penalties shall accrue

but need not be paid during the dispute resolution period. If

Respondent does not prevail upon resolution, all penalties

shall be due to EPA within 30 days of resolution of the

dispute. If Respondent prevails upon resolution, no penalties

shall be paid.

66. In the event that EPA provides for corrections

to be reflected in the next deliverable and does not require

resubmission of that deliverable, stipulated penalties for

that interim deliverable shall cease to accrue on the date of

such decision by EPA.

67. EPA agrees that if stipulated penalties are

collected for a violation, EPA shall not seek statutory

penalties for the identical violation, and vice versa.

Collection of stipulated penalties, however, does not preclude

33
EPA from conducting all or part of the removal action or does

not alter Respondent's obligation to complete performance

under this Order.

XX. FORCE MAJEURE

68. "Force majeure," for purposes of this Order, is

defined as any event arising from causes beyond the control of

Respondent and of any entity controlled by Respondent,

including its contractors and subcontractors, that delays the

timely performance of any obligation under this Order,

notwithstanding Respondent's best efforts to avoid the delay.

The requirement that Respondent exercise "best efforts to

avoid the delay" includes using best efforts to anticipate any

potential force majeure event and best efforts to address the

effects of any potential force majeure event (a) as it is

occurring, and (b) following the potential force majeure

event, such that the delay is minimized to the greatest extent

practicable. Examples of events that are not force majeure

events include, but are not limited to, increased costs or

expenses of any work to be performed under this Order or the

financial difficulties of Respondent. Examples of events that

are force majeure include, but are not limited to, the

inability to obtain data from other responsible parties that

are conducting RI/FS work or from EPA that are integral to and

necessary to complete work being performed.

34
69. If any event occurs or has occurred that may

delay the performance of any obligation under this Order,

whether or not caused by a force majeure event, Respondent

shall notify by telephone the EPA Project Coordinator at

293-1649, or in his or her absence, the Director of the

Hazardous Waste Management Division, EPA Region VIII, at

293-1720 within five days of when the Respondent knows that

the event might cause a delay. Within seven days after

Respondent knows that the event might cause a delay,

Respondent shall provide in writing (a) the reasons for the

delay; (b) the anticipated duration of the delay; (c) all

actions taken or to be taken to prevent or minimize the delay;

(d) a schedule for implementation of any measures to be taken

to mitigate the effect of the delay; and (e) a statement as to

whether, in the opinion of Respondent, such event may cause or

contribute to an endangerment to public health, welfare or the

environment. Respondent shall exercise best efforts to avoid

or minimize any delay and any effects of a delay. Failure to

comply with the above requirements shall preclude Respondent

from asserting any claim of force majeure.

70. If EPA agrees that the delay or anticipated

delay is attributable to force majeure, the time for

performance of the obligations under this Order that are

directly affected by the force majeure event shall be extended

by agreement of the parties for at least the number of days

35
attributable to the force majsure. An extension of the time

for performance of the obligation directly affected by the

force majeure event shall not, of itself, extend the time for

performance of any subsequent obligation, unless agreed to by

the parties.

71. If EPA does not agree that the delay or

anticipated delay has been or will be caused by a force

majeure event, or does not agree with Respondent on the length

of the extension, the issue shall be subject to the dispute

resolution procedures set forth in Section XVIII of this

Order. In any such proceeding, to qualify for a force majeure

defense, Respondent shall have the burden of demonstrating by

a preponderance of the evidence that the delay or anticipated

delay has been or will be caused by a force majeure event,

that the duration of the delay was or will be warranted under

the circumstances, that Respondent did exercise or is

exercising due diligence by using its best efforts to avoid

and mitigate the effects of the delay and that Respondent

complied with the requirements of this section.

72. Should Respondent carry the burden set forth in

the previous paragraph, the delay at issue shall be deemed not

to be a violation of the affected obligation of this Order.

XXI. REIMBURSEMENT OF RESPONSE COSTS

73. After the end of each calendar year in which

this Order is in effect, EPA shall submit to Respondent an

36
accounting of response costs incurred by the United States in

connection with this Order. Such costs shall include, but not

be limited to, all direct and indirect response costs incurred

by the United States. Within 30 days of receipt of each

accounting, Respondents shall reimburse the United States for

all uncontested response costs.

74. The accounting described in the previous

paragraph shall consist of a cost summary. If Respondent

desires additional information, Respondent may request a copy

of the CDMS report (or its equivalent). The pendency of any

such request shall not excuse Respondent from making any

required payment at the time such payment is due.

75. Respondent may contest payment of any cost under

Paragraph 73 if it determines that the United States has made

an accounting error or has included a cost item that is

inconsistent with CERCLA or the NCP by initiating dispute

resolution under Section XVIII of this Order before payment is

due. The written request for dispute resolution shall

specifically identify the contested costs and provide a

detailed explanation of the basis for the objection. In the

dispute resolution process, Respondent bears the burden of

proving that an accounting error has been made or that the

costs are inconsistent with CERCLA or the NCP.

76. If any dispute over costs is resolved before

payment is due, the amount due will be adjusted as necessary.

37
If the dispute is not resolved before payment is due,

Respondent, on or before the due date, shall pay the full

amount of the contested costs into an escrow account in a bank

duly chartered in the state. Respondent shall simultaneously

transmit a copy of the check to the EPA Cost Recovery Program

Manager. If Respondent subsequently prevails in all or part

of the dispute, Respondent may withdraw from the escrow

account the amount upon which it prevailed in the dispute plus

interest accrued on such amount. If Respondent does not

prevail in all or part of the dispute, the full amount owed to

EPA shall be withdrawn from the escrow account and this

amount, plus interest calculated in accordance with

Paragraph 78 of this section, shall be transmitted to EPA

within three days after the completion of dispute resolution.

77. For all payments under this section, Respondents

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

the "Hazardous Substance Superfund," to the following address:

Mellon Bank

EPA Region VIII

Attn: Superfund Accounting

Post Office BOX 360859M

Pittsburgh, Pennsylvania 15251

or other such address as EPA may designate in writing.

Payments must be designated as "Response Costs—California

Gulch Superfund Site" and shall reference the payer's name and

address, the EPA site identification number (Site No. 29), and

the docket number of this Order. Copies of the transmittal

38
letter and check shall be sent to the EPA Cost Recovery

Program Manager, at the same address as the EPA Project

Coordinator, at the time of payment.

78. If payment is not received by EPA when payment

is due, interest shall accrue from the date of transmittal of

the accounting, for the costs specified in Paragraph 73.

Interest shall accrue on the unpaid balance until such costs

and accrued interest have been paid in full. The interest

rate shall be the rate specified for interest on investments

of the Hazardous Substances Superfund in section 107(a) of

CERCLA, 42 U.S.C. § 9607(a). Interest will be compounded

annually. On October 1 of each subsequent fiscal year, any

unpaid balance will begin accruing interest at a new rate to

be determined by the Secretary of the Treasury.

79. The United States reserves its rights to bring

an action against Respondent to enforce the cost reimbursement

provisions of this Order, to seek penalties pursuant to

section 109 of CERCLA, 42 U..S.C. § 9607, and to recoup

response costs set forth in the accounting not reimbursed by

Respondent. EPA also reserves its rights to recover

Respondent's share of any past or future costs which are not

(a) reimbursed under this Order or (b) addressed as settlement

of past response costs under a partial consent decree, which

will be the second step of settlement as described in

Paragraph 7 of this Order.

39
XXII. RESERVATION OF RIGHTS

80. Except as expressly provided in this Order, each

party reserves all rights and defenses it may have. Nothing

in this Order shall affect EPA's removal authority or EPA's

response or enforcement authorities including, but not limited

to, the right to seek injunctive relief, stipulated penalties,

statutory penalties and/or punitive damages, nor shall

preclude the United States from taking action to enforce this

Order, nor from taking any action pursuant to CERCLA or any

other available legal authority.

XXIII. DISCLAIMERS

81. The execution and implementation of this Order

by Respondent does not necessarily indicate agreement with

EPA's Findings of Fact and Conclusions of Law. Furthermore,

the participation of Respondent in this Order shall not be

considered an admission of liability or a waiver of any

defense and is not admissible in evidence against Respondent

in any judicial or administrative proceeding other than a

proceeding by the United States, including EPA, to enforce

this Order or a judgment relating to it. Respondent retains

its right to assert claims including claims of contribution,

against other potentially responsible parties at the site.

82. Nothing in this Order is intended to release any

claims, causes of action or demands in law or equity of any

party against any entity not subject to this Order for any

liability arising out of or in any way relating to the site.

40
XXIV. OTHER CLAIMS

83. In entering into this Order, Respondent waives

any right to seek reimbursement under section 106(b) of

CERCLA, 42 U.S.C. § 9606(b). Respondent also waives any right

to present a claim under section 111 or 112 of CERCLA,

42 U.S.C. § 9611 or 9612. This Order does not constitute any

decision on preauthorization of funds under section 111(a)(2)

of CERCLA, 42 U.S.C. § 9611(a)(2). Respondent further waives

all other statutory or common law claims against the United

States including, but not limited to, contribution and

counterclaims, relating to or arising out of conduct of this

action, other than claims against the United States as a PRP

or against the Superfund for orphan shares.

84. Except as expressly provided in this Order,

nothing in this Order shall 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 any liability it may have arising out of or

relating in any way to the generation, storage, treatment,

handling, transportation, release or disposal of any hazardous

substances, pollutants or contaminants found at, taken to or

taken from the site.

85. Respondent shall bear its own costs and

attorneys' fees.

86. If a court issues an order that invalidates any

provision of this Order or finds that Respondent has

41
sufficient cause not to comply with one or more provisions of

this Order, Respondent shall remain bound to comply with all

provisions of this Order not invalidated by the court's order.

87. In the event of any inconsistency between the

terms and conditions of this Order or those contained in the

Work Plan approved hereunder, and any schedules, attachments,

exhibits or other documents incorporated herein, the terms and

conditions of this Order shall take precedence.

XXV. FINANCIAL ASSURANCE. INSURANCE. AND INDEMNIFICATION

88. Within 30 days of the effective date of this

Order, Respondent shall establish and maintain financial

security in the amount of $350,000 in one of the following

forms:

(a) A surety bond guaranteeing performance of

the Work;

(b) One or. more letters of credit equalling the

total estimated cost of the Work;

(c) A trust fund;

(d) A guarantee to perform the Work by one or

more parent corporations or subsidiaries, or by one or more

unrelated corporations that have a substantial business

relationship with Respondent; or

(e) A demonstration that the Respondent

satisfies the requirements of 40 C.F.R. Part 264.143(f).

42
89. If the Respondent seeks to demonstrate the

ability to complete the Work through a guarantee by a third

party pursuant to Paragraph 89(d) of this Order, Respondent

shall demonstrate that the guarantor satisfies the

requirements of 40 C.F.R. Part 264.143(f). If Respondent

seeks to demonstrate its ability to complete the Work by means

of the financial test or the corporate guarantee, it shall

resubmit sworn statements conveying the information required

by 40 C.F.R. Part 264.143(f) annually, on the anniversary of

the effective date of this Order. In the event that EPA

determines at any time that the financial assurances provided

to this Paragraph are inadequate, Respondent shall, within

30 days of receipt of notice of EPA's determination, obtain

and present to EPA for approval one of the other forms of

financial assurance listed in Paragraph 88 of this Order.

Respondent's inability to demonstrate financial ability to

complete the Work shall not excuse performance of any

activities required under this Order.

90. No later than 15 days after the effective date

of this Order, Respondent shall secure, and shall maintain

until acceptance of Respondent's Notice of Completion,

pursuant to Paragraph 94, comprehensive general liability and

automobile insurance within limits of one million dollars,

combined single limit, naming as an additional insured the

United States. Respondent can satisfy this requirement

43
through self-insurance. In addition, for the duration of this

Order, Respondent shall satisfy, or shall ensure that its

contractors or subcontractors satisfy, all applicable laws and

regulations regarding the provision of worker's compensation

insurance for all persons performing the Work on behalf of

Respondent in furtherance of this Order. Prior to

commencement of the Work under this Order, Respondent shall

provide to EPA certificates of such insurance, or evidence of

self-insurance. Respondent shall resubmit such certificates

each year on the anniversary of the effective date of this

Order. If Respondent demonstrates by evidence satisfactory to

EPA that any contractor or subcontractor maintains insurance

equivalent to that described above, or insurance covering the

same risks but in a lesser amount, then, with respect to that

contractor or subcontractor, Respondent need provide only that

portion of the insurance described above which is not

maintained by the contractor or subcontractor.

XXVI. EFFECTIVE DATE AND SUBSEQUENT MODIFICATION

91. The effective date of this Order shall be the

date it is signed by EPA.

92. This Order may be amended by mutual agreement of

EPA and Respondent. Amendments shall be in writing and shall

be effective when signed by EPA. EPA Project Coordinators do

not have the authority to sign amendments to the Order.

93. No informal advice, guidance, suggestions,

assurances or comments by EPA or its authorized

44
representatives shall modify the terms and conditions of this

Order or relieve Respondent of its obligations under this

Order, including its obligations to obtain formal approvals.

Any deliverables, plans, technical memoranda, reports (other

than progress reports), specifications, schedules and work

required by this Order are, upon written approval by EPA,

incorporated into this Order. Any non-compliance with such

EPA-approved documents shall be considered a violation of this

Order.

XXVII. TERMINATION AND SATISFACTION

94. This Order shall terminate when Respondent

demonstrates in writing and certifies to the satisfaction of

EPA in a Notice of Completion that all activities required

under this Order, including any additional work, are complete.

EPA shall either accept or reject Respondents Notice of

Completion within thirty (30) calendar days of receipt by

issuing a written notice. If EPA rejects Respondent's Notice

of Completion, EPA shall include in its written notice of

rejection a detailed statement identifying the terms of this

Order which EPA considers incomplete and EPA shall provide

Respondent reasonable opportunity to correct any such

deficiencies and to resubmit to EPA the Notice of Completion.

95. The certification shall be signed by a

responsible official representing the Respondent. The

representative shall make the following attestation: "I

45
certify that the information contained in or accompanying this

certification is true, accurate, and complete." For purposes

of this Order, a responsible official is a corporate official

who is in charge of a principal business function.

XXVIII. RELEASE AND CONTRIBUTION PROTECTION

96. EPA hereby releases Respondent from any further

liability for conducting or paying for the 1991-1992 Remedial

Investigation and any Feasibility Study associated with this

Remedial Investigation as depicted in the RI/FS study area

map, dated May 10, 1991.

97. The limitations in this Order regarding further

work on the Zinc Slag piles are based on the United States'

understanding that Respondent does not own the Zinc Slag pile

that will be studied under this Order.

98. With regard to claims for contribution against

Respondent for matters addressed in this Order, the parties

agree that Respondent is entitled, as of the effective date of

this Order, to such protection from contribution actions on

claims as is provided in CERCLA § 113(f)(2), 42 U.S.C.

§ 9613(f) (2).

XXIX. SIGNATORIES

99. The undersigned representatives of Respondent

certify that they are fully authorized to enter into the terms

and conditions of this Order and to execute and legally bind

such party to this document.

46
IT IS SO ORDERED AND AGREED:

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

BY.

Dated /£ -

DENVER AND RIO GRANDE WESTERN

RAILROAD COMPANY

By

Dated

CLNP/AP2 47