O42B8O

UNITE D STATE S ENVIRONMENTA L PROTECTIO N AGENC Y REGION VII I ' ADMINISTRATIVEREGOR D ._'•• -•' ~ 3 «I' T 5

:

 '« 3

IN TH E MATTE R OF :

CALIFORNI A GULC H SUPERFUN D SITE , ASARC O INCORPORATED , RESPONDENT. .

PROCEEDING UNDE R SECTION 106(a ) OF THE COMPREHENSIVE

ENVIRONMENTA L RESPONSE , COMPENSATION , AN D LIABILIT Y ACT , AS AMENDED , 42 U.S.C . § 9606(a )

Firs t Amendment t

- Order EPA Docket No.

FIL E PLAN

3,5, 9. ft

PBIV

FIRST AMENDMEN T T O ADMINISTRATIV E ORDER FOR CERTAIN REMEDIA L INVESTIGATIO N STUDIE S

As provided under Paragraph 84, Sectio n XXVIII, page 20, of

the above referenced Administrative Order, the Order is hereby

amended as follows: • . -.

1. Paragraph 12 is amended to read as follows : Afte r the

firs t sentence add "Work plan" also means the "Hydrogeologic Work Plan , California Gulch Site , Leadvilie, Colorado, August 1991,"

affixed to the Firs t Amendment to this Order and hereafter to be

referred to as Exhibit 7 to this Order.

2. Appendix A to the above referenced Order is amended by

addin g the followin g new section:

E. Changes to Hydrogeologic Work Plan , California Gulch Site , Leadville , Colorado, August 1991. Exhibit 7.

1) Section 3.1.3.3, Page 3-3: The sixth sentence is

changed to specif y that the maximum screen length

for background monitoring well s will be 10 feet as

described in the EPA Technical Enforcement Guidance Document (TEGD) 1991.

2) Section 3.1.3.5, Page 3-5, Para. 3: The maximum

screen length for the piezometer will be 10 feet

as described in the Technical Enforcement Guidance

. • ;. Document (TEGD) 1991.

3) Section 3.1.3.6, Page 3-6> Para. It The sixth

sentence is changed to specif y that the maximum
screen length for bedrock monitoring veils wil l be

no longer than 15 feet .

IT IS SO ORDERED:

ENVIRONMENTA L PROTECTION AGENCY , REGION VII I

Robert

- - Hazardous Waste M Division
UNITED STATES ENVIRONMENTA L PROTECTION AGENCY

REGION VII I

Denver, Colorado

IN THE MATTER OF: )

) HECLA MINING COMPANY )

)

Proceedings under Section 106(a ) )

of the Comprehensive Environmental) Response, Compensation, and ) Liability Act of 1980, as amended ) by the Superfun d Amendments and ) Reauthorization Act of 1986, )

42 U.S.C. . Section 9606fal_______)

E PA DOCKET NO. CALIFORNIA GULCH SUPERFUND SIT E ADMINISTRATIV E ORDER ON CONSENT: STRINGTOWN AND MALTA GULCH TAILING S EE/CA
TABLE OF CONTENTS

Page

I. INTRODUCTION ................

I I. JURISDICTION .... 1 .........

III. PARTIES BOUND ................... 

I V. STATEMENT OF PURPOSE ............... 3

V. FINDINGS OF FACT ................. 

V I. CONCLUSIONS OF LAW . ^ .............

VII. NOTICE T O THE STAT E ................ 

VIII. WORK TO BE PERFORMED ............... 9

IX. EPA APPROVAL OR DISAPPROVAL OF THE WORK ...... 9

X. ADDITIONAL WORK OUTSID E SCOPE OF WORK PLAN ... 10

X I. QUALITY ASSURANCE ..............

XII. REPORTING ..................... 12

XIII . ACCESS , SAMPLING AND AVAILABILIT Y OF INFORMATION ...............

XIV . COMMUNITY RELATIONS AND COORDINATION OF ACTIVITIES ..................

X V. ADMINISTRATIVE RECORD .............

XVI . DELIVERY OF DOCUMENTS Jt .............. 16

XVII . DESIGNATION OF PROJECT COORDINATORS ........ 17

XVIII. OTHER APPLICABLE LAWS ............... 19

XIX . RECORD PRESERVATION ................ 

X X. DISPUTE RESOLUTION " . J|. ............. 20

XXI . STIPULATED PENALTIES ...........

XXII. FORCE MAJEURE ................... 23

D29.A(EN ) i 08/20/9 1
Page

XXIII. REIMBURSEMENT OF OVERSIGHT COSTS ......... 25

XXIV . RESERVATION OF RIGHTS AND OTHER CLAIMS AND RELIEF ...................... 27

XXV . DISCLAIMER S .................... 29

XXVI . EFFECT OF ORDER .................. 30

XXVII. INDEMNIFICATION .........

XXVIII. EFFECTIV E DATE AND SUBSEQUENT MODIFICATION .... 

XXIX . NOTICES ...................... 3

XXX . TERMINATION AND SATISFACTION .....

XXXI . SIGNATORIES ..................

D29.A(EN ) i i 08/20/9 1
I . INTRODUCTION

1. Thi s Administrative Order on Consent ("Consent

Order" or "Order") is entered into voluntarily by the United

States Environmental Protection Agency ("EPA") and Hecla Mining

Company ("Hecla") . Thi s Order concerns the preparation by Hecla

of an Engineering Evaluation/Cost Analysis ("EE/CA" ) for what are

known as the Malta Gulch tailings within the California Gulch

Superfun d Site near Leadville, Colorado (the "California Gulch

Site" or the "Site") , to determine the nature and extent of any

releases and any appropriate response activities at the Malta

Gulch tailings. Thi s Consent Order is the firs t step of a plan ,

more specificall y described herein and agreed to in concept by

EPA, the U. S. Department of Justice and Hecla which, recognizing

Hecla' s very limited role at the California Gulch Site , will •

allow the United States and Hecla to resolve all of Hecla's

liability at the Site in a fair and expeditious fashion.

I I . JURISDICTIO N

2. Thi s Order is issued under the authority vested in

the President of the United States by Section 106(a ) of the

Comprehensive Environmental Response, Compensation, and Liabilit y

A ct of 1980, 42 U.S.C . § 9606(a) , as amended ("CERCLA") ;

delegated to the Administrator of the EPA by Executive Order

12580, dated January 23, 1987, 52 Fed. Rea. 2923 (Jan . 29, 1987) ;

and further delegated to the EPA Regional Administrators and the

E PA Assistant Administrator for the Solid Waste and Emergency

D29.A(EN ) 1 08/20/9 1
Response by the EPA Delegations Manual Sections 14-14, 14-14-A,

and 14-14-C. Thi s authority is conferred on the EPA Region VIII

Director, Hazardous Waste Division, by Regional Redelegation

Order signed by the Regional Administrator.

III . PARTIES BOUND

3. Thi s Order applies to and is binding upon the

United States and upon Hecla and their respective agents,

successors and assigns. Any change in ownership or corporate

status of Hecla, including, but not limited to, any transfer of

assets of real or personal property, shall in no way alter

Hecla' s responsibilities under this Consent Order.

4. Hecla shall provide a copy of the Order to any

corporate successor so long as this Order remains in effect .

Hecla shall provide a copy of this Order to all contractors,

subcontractors, laboratories and consultants retained to conduct

any work under this Order. Hecla shall condition all contracts

for performance of the Work upon satisfactory compliance with

this Order. Notwithstandin g the terms of any contract, Hecla is

responsible for compliance with this Order and for requiring that

its employees, contractors, subcontractors, consultants and

agents comply with this Order.

D29.A(EN ) • 2 08/20/9 1
I V. STATEMENT OF PURPOSE

5. In entering into this Consent Order, the mutual

objectives of EPA and Hecla are to enter into a ful l and complete

settlement of all claims against Hecla relating to the California

Gulch Site in a three-prong process, to be completed by Summer

1992. The end'resul t would be this Order and two Consent Decrees

with the United States resolving Hecla' s entire liabilit y at the

Site on the basis of Hecla' s limited involvement at the Site , and

which would grant Hecla covenants not to sue, contribution

protection, and other appropriate relief .

6. The three steps are as follows . The firs t step is

*

for Hecla to undertake and complete the EE/CA pursuant to this

Consent Order. A fundamental purpose of the EE/CA is to

characterize the Malta Gulch tailings (as described and set forth

in the attached Work Plan) , and any releases and impacts

associated therewith, and to evaluate appropriate remedial

alternatives for these releases and impacts. In the second step,

taking into account Hecla' s limited involvement at the site and

its entry into this Order to perform the EE/CA , Hecla would agree

to pay the United States an appropriate sum to settle all of the

United States claims against Hecla associated with the Site ,

except as to the Malta Gulch tailings. More specifically , this

second step settlement will be embodied in a Partial Consent

Decree to be lodged with the Court in the pending action and will

provide Hecla a ful l covenant not to sue and contribution

protection as to: any and all liabilities related to the Site ,

D29.A(EN ) 3 08/20/91
except as to the Malta Gulch tailings; past response costs

incurred by the United States up to the date of the decree; and,

as necessary, the matters addressed in this Order. Hecla and the

United States currently plan to enter into a Partial Consent

Decree effectin g this settlement by the end of September 1991,

pursuant to which all federal claims in the consolidated action

State of Colorado v. ASARCOf Inc. . et al.. Civil Action

N o. 83-C-2388 (consolidated with 86-C-1675) (the "pending

action") against Hecla and covered by the decree would be

dismissed, subject to standard reopeners. In the third step,

Hecla would resolve any remaining liabilit y by agreeing to

implement and/or pay an appropriate share of the cost of EPA's

chosen or likely response action for the Malta Gulch tailings

based on matters investigated and conclusions drawn in the EE/CA ,

taking into account: (1) Hecla's limited involvement at the

Site; (2) prior activities and payments in this settlement

process; and (3) the available data on the airborne contribution

and impact, if any, of metals from the Malta Gulch tailings to

soils in the Town of Leadville. Thi s third step settlement will

be incorporated into a Consent Decree to be lodged with the

Court, which will provide for dismissal with prejudice of all

then outstanding claims against Hecla in the pending action and

provide Hecla a covenant not to sue and contribution protection

for all matters addressed in the Consent Decree and, as

necessary, all matters previously addressed in the AOC and the

Partial Consent Decree.

D29.A(EN ) 4 OB/20/91
7. In addition, the United States and Hecla have had

initial conversations with the State of Colorado about settlin g

all of the State' s claims as part of the third step, including

natural resource damages. Furthermore, EPA will coordinate with

federal natural resource trustees concerning the possible

settlement of claims, if any, to be asserted by the federal

trustees with regard to natural resource damages under their

trusteeship. The United States , Colorado, and Hecla will pursue

settlements of such claims as they may agree.

8. The activities required by this Consent Order are

to be •accomplished in a manner consistent with CERCLA, as

amended, and the National Oil and Hazardous Substances Pollution

Contingency Plan ("NCP") , 40 C.F.R . Part 300, et sea.. as amended

by 55 Fed. Reg. 8666.

9. Under this Order, Hecla is to be released from

liability , and provided contribution protection for: (1) the

work performed pursuant to this Consent Order; and (2) the work

performed as part of and in connection with the 1991 Summer

Remedial Investigation, as more specificall y delineated in

Exhibit B, attached hereto and incorporated herein by reference,

within the geographic area depicted in the RI/FS Study Map dated

Hay 10, 1991, which is attached hereto as Exhibit C and

incorporated by reference, and any response costs, including but

not limited to oversight costs, incurred in connection therewith.

D29.A(EN ) 5 08/20/91
V. FINDINGS OF FACT

10. The California Gulch Site is listed on the

National Priorities List and is located near Leadville, Colorado.

11. Hecla is a Delaware corporation with its corporate

X

headquarters located in the State of Idaho. Hecla acquired Day

Mines, Inc. , by statutory merger in 1981. Hecla's involvement at

the California Gulch Site of concern to the United States stems

from that acquisition and is limited to: (1) the lease of mining

claims and property from approximately 1974 to 1983, but without

ever mining or otherwise undertaking activities at these claims

or properties; and (2) the lease of property from approximately •

1974 through 1987 and operation of an ore concentrating mill from

approximately 1974 through 1984, operating intermittently in the

last few years, located within the California Gulch Site at

Stringtown.

12. Hil l tailing piles are found at various locations

within the California Gulch Site , including the Halta Gulch

tailings. Hil l tailings are the residual material remaining

after milling and separation has removed the metal as

concentrates from .the ore. Tailings generally consist of finegrained particles. Some of the constituents, also known as heavy

metals, found in mill tailings are considered CERCLA "hazardous

substances." Hil l tailings discharge or have the potential to

discharge heavy metals to soils, groundwater and/or surface

water.

D29.A(EN ) 6 . OB/20/91
13. The Malta Gulch tailings are the result of millin g

operations conducted by Hecla and other potentiall y responsible

parties ("PRPs"). Hecla did not generate or dispose of other

tailings material at the Site , including but not limited to what

are known as the "Stringtown tailings" (or "Stringtown slimes"),

or of any smelter-related materials during its tenure at

r Stringtown.

14. The purposes of the EE/CA required by this Order

are to characterize the Malta gulch tailings , to study the

potential contribution of the Malta Gulch tailings to releases at

the Site and to evaluate reasonable response alternatives, as

identified in the Work Plan, with the Malta Gulch tailings, as

^

well as to develop and evaluate any other reasonable response

alternatives.

V I. CONCLUSIONS OF LAW

Based upon the preceding Findings of Fact and the

administrative record for the California Gulch Site , EPA has made

the followin g Conclusions of Law:

•

15. Some of the constituents in the Malta Gulch

tailings are "hazardous substances" as defined in § 101(14) of

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

contaminant" that may present an imminent and substantial danger

to public health or welfare under § 104(a)(1 ) of CERCLA, 42

U.S.C . § 9604(a)(1) ;

D29.A(EN ) • 7 08/20/91
16. The actual or potential migration of hazardous

substances found in the Malta Gulch tailings constitutes an

actual or threatened "release" into the "environment," as defined

in Section 101(22 ) and 101(8) , respectively, of CERCLA, 42 U.S.C .

§§ 9601(22 ) and 9601(8) ;

17. Hecla is a "person" as defined in Section 101(21)

Of CERCLA, 42 U.S.C . § 9601(21) ;

18. Hecla has been identified by EPA as a PRP at the

California Gulch Site under Sections 104, 107 and 122 of CERCLA,

42 U.S.C . §§ 9604, 9607 and 9622;

19. The actual or threatened release of hazardous

substances from the Malta Gulch tailings may present an imminent

and substantial endangerment to public health or welfare or the

environment; and

20. The actions required by this Order are protective

of the public health or welfare or the environment, are in the

public interest, and, upon performance, shall be considered

consistent with CERCLA and the NCP .

( VII . NOTIC E T O TH E STAT E

21. 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 has also requested that the State review the Work

D29.A(EN ) 8 OS/20/91
Plan in anticipation of step three in the settlement process

delineated in paragraph 6, above.

22. The State may be involved in the initiation,

development and selection of any response actions as provided

under Section 121 of CERCLA, 42 U.S.C . S 9621.

VIII. WORK TO BE PERFORMED

2 3. Pursuant to Section 106(a ) of CERCLA, 42 U.S.C .

§ 9606(a) , Hecla shall carry out the actions described in and

within the scope of the approved Work Plan (the "Work"), which is

attached hereto as Exhibit A and incorporated by reference. Upon

their approval by EPA, the Quality Assurance/Quality Control

Plan, the Samplin g and Analysis Plan, the Operation and

Maintenance Plan, the Health and Safet y Plan, and all other

engineering plans and specification s required by the Work Plan

shall be considered integral parts of the Work Plan and shall be

incorporated by reference into this Order.

I X. EPA APPROVAL OR DISAPPROVAL OF THE WORK

24. EPA shall review and approve or disapprove all

deliverables required by the Work Plan in a timely fashion,

recognizing the mutual desire of the parties hereto to complete

the activities required by this Order and finalize by the summer

of 1992, the final step of the settlement among Hecla, the United

States and the State for the California Gulch Site.

D29.A(EN ) 9 08/20/9 1
25. In the event EPA determines that Hecla has failed

to implement the Work or any portion thereof in accordance with

the Work Plan, EPA shall provide timely notice of such

deficiency. The notice of deficienc y shall set forth in

reasonable detail EPA' s claimed basis for allegin g deficien t

performance and the steps required to correct said deficiency.

Unless the Dispute Resolution provisions of this Order are

invoked, Hecla shall then implement such corrective steps as set

forth in the notice of deficiency.

X. ADDITIONAL WORK OUTSID E SCOPE OF WORK PLAN

26. EPA may, as it deems necessary and consistent with

federal lavs and regulations, determine that additional

activities, other than those set forth within the scope of the

Work Plan, are necessary. EPA shall afford Recla the opportunity

to perform such tasks except in those areas where, in the

judgment of EPA, Hecla is not qualified to conduct the tasks, or

when the need to take immediate action precludes such

opportunity. However, this Order shall not provide a basis for

E PA to require Hecla to perform the subject tasks. If Hecla

declines to conduct the additional work requested, EPA reserves

the right to conduct said work or any portion thereof pursuant to

its authority under CERCLA, to exercise its rights under § 106 or

to seek reimbursement from Hecla and/or seek any other

appropriate relief .

D29.A(EN ) 10 08/20/9 1
X I . QUALIT Y ASSURANC E

27. Hecla shall assure that work performed, samples

taken, and analyses conducted pursuant to this Order conform to

the requirements of this Order. Hecla shall assure that its

field personnel are properly trained in the use of field

equipment and chain-of-custody procedures.

28. To provide quality assurance and maintain quality

control, Hecla shall:

a) use a laboratory which has a documented

quality assurance program that complies with EPA guidance;

b) ensure that such laboratory performs analyses

according to the approved Samplin g and Analysis Plan or methods

deemed satisfactory by EPA (if a non-approved method is proposed,

Hecla shall submit all protocols to be used for analysis to EPA

at least seven (7) days before beginning the analysis);

c) ensure that EPA and State personnel or their

authorized representatives are allowed access to such laboratory

and personnel; and

d) upon EPA request, have such laboratory

analyze samples submitted by EPA for quality-assurance

monitoring.

In the event that Hecla fail s to use the quality

assurance/quality control practices and procedures as outlined in

the approved Samplin g and Analysis Plan, EPA reserves the right

to conduct the Work or any portion thereof pursuant to its

D29.A(EN ) 11 08/20/91
authority under CERCLA, to seek reimbursement from Hecla and/or

seek any other appropriate relief .

•

XII . REPORTING

29. Hecla shall deliver to EPA and the State monthly

written progress reports concerning the activities implemented

under this Order. At a minimum, progress reports shall describe

in reasonable detail: (1) all of Hecla's actions undertaken at

the Site during the previous month pursuant to this Order;

( 2) all actions scheduled for the next month; and (3) any

problems or other relevant nonprivileged information related to

Hecla' s implementation of this Order and what steps Hecla has

^

taken or intends to take to correct any such problems. Hecla

shall submit the monthly progress reports (for the previous

month) to EPA and the State every month by the tenth (10th) day

of each month followin g the effective date of this Order, except

that Hecla shall have no less than twenty (20 ) days after the

effective date of this Order to submit the first monthly progress

report.

XIII . ACCESS . SAMPLIN G AN D AVAILABILIT Y OF INFORMATION

30. Hecla does not currently own or lease any of the

property on which the Work will be performed. Hecla will use its

best effort s to obtain a written access agreement from the owner

of any property to which access is required for performance of

the Work at least fourteen (14) days prior to the time such

D29.A(EN ) • 12 OB/20/91
access is needed. Such agreements shall provide reasonable

access for EPA, the State , and Hecla and their respective

contractors and other authorized representatives. Such

agreements shall specif y that'Hecl a i s not EPA' s representative

with respect to liabilit y associated with the activities at issue

and that EPA is not Hecla' s representative with respect to

liabilit y associated with such activities. Copies of such

•

agreements shall be provided to EPA prior to Hecla' s initiation

of field activities.

31. As provided by the access agreement(s) referenced

in Paragraph 30, EPA, the State and their respective authorized

representatives may enter and freel y move about all property

where the Work is being performed, for the purposes of inspecting

conditions, activities, the results of activities, non-privileged

records, operating logs and contracts related to the Work or to

Hecla and its>contractor(s) pursuant to the Order. Hecla shall

allow these persons to inspect and copy all non-privileged

records, files , photographs, documents, sampling and monitoring

data, and other writings related to the Work. ' Nothin g herein

shall be interpreted as limiting or affectin g EPA's right of

entry or inspection authority under federal law.

32. If access agreements are not obtained within the

time referenced above, Hecla shall promptly notif y EPA of its

failure to obtain access. EPA will obtain access for conduct of

the Work in the event that Hecla cannot obtain such access

agreements. Hecla agrees to indemnify EPA as specified in

D29.A(EN ) 13 08/20/91
Section XXIII of this Order and shall reimburse EPA for all

reasonable court costs and attorney fees incurred by EPA to

obtain access for conduct of the Work in accordance with this

paragraph. In the event any property owner expressly prohibits

access for sampling purposes to Hecla, but grants such access to

EPA, EPA may then either conduct such sampling and deliver such

samples to Hecla for analysis pursuant to the Work Plan or select

an alternative sample location where Hecla can obtain access.

33. All results of sampling, tests, modeling, or other

«

data (including raw data) generated by Hecla, or on Hecla's

behalf , pursuant to this Order, shall be submitted to EPA in

accordance with the Work Plan. EPA will make available to Hecla

validated data generated by EPA, unless it is exempt from

disclosure by any federal law or regulation.

3 4. At EPA's request, Hecla shall allow split or

duplicate samples to be taTcen by EPA, at EPA's expense, of any

samples collected by Hecla in implementing this Order.

35. In entering this Order, Hecla waives any

evidentiary objections, excluding evidentiary objections relating

to relevance, to any data gathered or generated by Hecla in the

performance of the Work that has been verified according to EPAapproved quality assurance/quality control procedures.

36. Hecla may assert business confidentialit y claims

covering part or all of the documents or information submitted to

E PA under this Order to the extent permitted by Section 104(e)(7 )

of CERCLA, 42 U.S.C . S 9604(e)(7) . Such claims shall be asserted

D29.A(EN ) 14 08/20/9 1
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 II, Subpart B. If no

claim of confidentiality accompanies information or documents

when they are submitted to EPA, or if EPA has notified Hecla that

the information or documents are not confidential under the

standards of Section 104(e)(7 ) of CERCLA, the public may be given

access to such documents or information without further notice to

Hecla.

37. No claim of confidentialit y 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.

XIV . COMMUNIT Y RELATIONS AND COORDINATION OF ACTIVITIES

3 8. Hecla shall cooperate in EPA's California Gulch

Site community relations activities as they relate to the Work as

necessary and reasonable, including the making of presentations

concerning the Work done under the Order.

39. During the course of the Work, other potentiall y

responsible parties, conducting separate but related RI/FS work,

will be generating data, draft s and reports that must be

coordinated with Hecla' s Work. In order to facilitate this

coordination, all such potentiall y responsible parties will be

D29.A(EN ) ' 15 OB/20/91
ordered to provide copies of their respective workplans

(including schedules) to one another within five days- of the

effective 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,.Hecla will provide

to Newmont Mining Corporation/Resurrection Mining Company, Asarco, Inc. , and Denver & Rio Grande Western Railroad Company

within five days of the effective date of this order at least one

copy of Hecla's workplan and schedule for performance of the

EE/CA Work. Hecla will cooperate with Newmont/Resurrection,

Asarco and D&RGW in its performance of the Work, including

providing reasonable access to data and reports generated by

Hecla in the course of the Work. Hecla shall also allow the

parties referenced in this paragraph to take split samples of

EE/CA-related samples, upon reasonable and timely request, at the

requesting party' s expense.

X V. ADMINISTRATIVE RECORD

40. The contents of the Administrative Record as it

relates to this Order shall be compiled in accordance with

applicable law.

XVI . DELIVERY OF DOCUMENTS

41. Documents, including reports, approvals,

disapprovals, and other correspondence which must be submitted

under this Order, shall be hand-delivered, sent by overnight

D29.A(EN ) 16 08/20/9 1
courier or sent by certified mail, return receipt requested, to

the followin g addresses or to any other address which EPA, the

State or Hecla designates in writing:

a) Documents to be submitted to EPA shall be

sent in triplicate to:

Denise Link (8 HWH-SR) Remedial Project Manager EPA, Region VIII

999 - 18th, Suite #500 Denver, CO 80202-2405

b) Documents to be submitted to Hecla shall be

sent to:

Larry A. Drew Manager, Environmental Affair s Hecla Mining Company

6500 Mineral Drive Box C-8000 Coeur d'Alene , ID 83814-1931

a nd to, Elizabeth H. Temkin Ballard Spahr Andrews & Ingersol l

1225 17th Street, #2300 Denver, CO 80202

c) Documents to be submitted to the State shall

be sent to:

Russ Alien State Project Officer California Gulch, CERCLA Site Colorado Department of Health Hazardous Materials Waste Management Division

4210 E. llth Avenue, Room #351 Denver, CO 80220

XVII . DESIGNATION OF PROJECT COORDINATORS

4 2. The project coordinators for Hecla and EPA,

respectively, shall be:

D29.A(EN ) • 17 OB/20/91
a) For Hecla:

John Callendar Adrian Brown Consultants Inc.

155 S. Madison, Suite 302 Denver, CO 80209

303/399-9630

b) For EPA:

Denise Link EPA, Region VIII

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

303/294-7146

Each project coordinator shall be responsible for overseeing

their respective principal' s obligations in connection with the

implementation of this Order. All written communication, between

EPA and Hecla concerning the Work shall be directed to the

respective Project Coordinators, with copies of all written

communications to those additional individuals designated in

Paragraph 41 and 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.

43. EPA and Hecla each have a right to change their

respective Project Coordinator. The other party must be notified

at least seven (7) days prior to the effective date of such

change.

4 4. EPA's Project Coordinator shall have the authority

vested in the remedial project manager and the on-scene

coordinator by the NCP. The Work will continue in the absence of

D29.A(EN ) 18 OS/20/91
the EPA Project Coordinator from the Work area(s) unless

otherwise directed by EPA.

•

XVIII . OTHER APPLICABL E LAW S

45. All activities undertaken by Hecla pursuant to

this Order shall be in compliance with all federal , state and

local lavs and regulations, including permit regulations, unless

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

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

and approvals required for performance of the Work in sufficien t

•

time to perform the Work as scheduled.

XIX. RECORD PRESERVATION

4 6. All records and documents in Hecla' s possession,

custody or control that relate in any way to the Work or this

Order shall be preserved while this Order is in effec t and for a

minimum of six (6) years after termination of this Order.

4 7. After this six (6) year period, Hecla shall notif y

EPA at least ninety (90) days before the documents are scheduled

to be destroyed. If EPA so requests, Hecla shall give to EPA all

non-privileged documents or copies of the same requested by EPA,

at no cost to EPA.

48. Hecla 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

Hecla asserts such a privilege, it shall provide EPA with the

D29.A(EN ) 19 ' 08/20/91
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 Hecla. However,

except for draf t documents or reports, no documents, reports or

other information created or generated pursuant to the

requirements of the Order shall be withheld on the grounds that

they are privileged.

X X . DISPUT E RESOLUTION

49. Any and all disputes arising under this Order

shall be resolved as follows: Hecla shall notif y EPA's Project

Coordinator, in writing, of the dispute within seven (7) days of

receipt of EPA's written decision, deficiency notice or

objection. Hecla' s written objection shall defin e the'dispute ,

state the basis of Hecla' s objection and be sent by certified

mail, return receipt requested, to the EPA Project Coordinator.

EPA and Hecla then have an additional ten (10) days from receipt

of this objection to attempt in good faith to resolve the

dispute. If the dispute cannot be resolved, Hecla may petition

the court-appointed Settlement Master, Mr. Richard L. Dana, to

hear the dispute and function as an initial conciliator. In the

event Hecla petitions Settlement Master Dana, EPA shall

participate in any discussions concerning Hecla' s objections with

D29.A(EN ) - 20 08/20/9 1
Settlement Master Dana and Hecla, as scheduled by the parties.

In the event the dispute cannot be resolved in this fashion , the

Director, Hazardous Waste Division, EPA Region VIII, shall render

a final administrative determination on the disputed issue. To

the extent applicable, judicial review of any dispute shall be

subject to the strictures of 42 U.S.C . § 9613(j) .

50. Hecla is not relieved of its obligations to

perform and conduct activities and submit deliverables on the

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

dispute resolution, unless an agreement is reached or a decision

is made otherwise in the course of resolving the dispute. The

invocation of dispute resolution does not stay stipulated

penalties under this Order; provided, however, that Hecla shall

not be liable for accrued stipulated penalties if it prevails in

the dispute or if the parties agree or a decision is made

otherwise in the course of or as part of resolution of the

dispute that Hecla shall not be liable for some or all of the

accrued stipulated penalties.

XXI . STIPULATE D PENALTIE S

5 1. Subject to the provisions of Article XXII, for

each day Kecla fail s to complete the activities delineated in

Paragraph 53, Hecla may be liable for stipulated penalties, in

the discretion of EPA based on the facts and circumstances

involved.

D29.A(EN ) 21 08/20/91
5 2. Stipulated penalties for the delays specified in

Paragraph 53 shall only accrue at 50% of the dollar amounts

listed in Paragraph 53 until the day Hecla receives notice from

E PA of Hecla's alleged failure to satisf y the requirement of this

Order at issue, at which point the dollar amounts set out in

Paragraph 53 shall apply .

53. Stipulated penalties shall accrue for the events

designated in this paragraph as follows:

a) Failure to submit monthly reports or other

deliverables, except the Engineering Evaluation/Cost Analysis

("EE/CA") , when required by this Order; failure to provide for

E PA access as set out in Section XIII; failure to submit

^

documents as required by this Order; failure to allow for spli t

samples as set out in Paragraph 39; or failure to satisf y the

requirements of Paragraph 28: $250/da y for the 1st through 7th

day of violation; $750/da y for the 8th through 14th day of

violation; $l,000/da y for the 15th day of violation and each day

thereafter; and

b) Failure to submit the EE/CA when required by

this Order: $500/da y for the 1st through 7th day of violation;

$ l /000/da y for the"8th through 14th day of violation; $l,500/da y

for the 15th day of violation and each day thereafter.

54. Within thirty (30) days of receipt of an invoice

for the same, Hecla shall make payment- of undisputed stipulated

penalties due under this Order by cashier' s or certified check,

payable to "Hazardous Substance Superfund" to:

D29.A(EN ) • 22 08/20/91
Helio n Bank

.EPA Region VIII Attn: Superfun d Accounting P.O. Box 360859M Pittsburgh, PA 15251

Checks shall identif y the name of the Site , the Site

Identificatio n 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.

55. The stipulated penalties provisions of this

Section XXI do not preclude EPA from pursuing any alternative

remedies or -sanctions which are available to EPA because of

Hecla's failure to comply with this Order. Payment of stipulated

penalties does not alter Hecla' s obligation to complete

performance of the Work under this Order.

XXII . FORCE MAJEURE

56. "Force Hajeure," for purposes of this Order, is

defined as any event arising from causes beyond the control of

Hecla or any entity controlled by Hecla, including, but not

limited to, Hecla's contractors and subcontractors, that delays

or prevents the performance of any obligation under this Order

despite Hecla' s best effort s to fulfil l the obligation. The

requirement that Hecla exercise "best effort s to fulfil l the

obligation" includes using best effort s to anticipate any

potential force majeure event and best effort s to address the

effect s of any potential force majeure event (1) as it is

*

D29.A(EN ) 23 08/20/91
occuxxing and (2) followin g the potential force majeure event,

such that the delay is minimized to the greatest extent possible.

"Force Majeure" does not include financial inability to complete

the work or a failure to attain the performance standards.

"Force majeure" does, however, include the inability of Hecla to

acquire access pursuant to Paragraph 30 or to obtain permits,

licenses or approvals pursuant to Paragraph 45.

•

57. If any event occurs that may delay the performance

of any obligation under this Order, whether or not caused by a

force majeure event, Kecla shall notif y by telephone the Project

Coordinator, or in his or her absence, the Director of the

Hazardous Waste Management Division, EPA, Region VIII, within

one (1) working day of when Hecla knew that the event might cause

,f

a delay. Within five (5) days after Hecla knew that the event

might cause a delay, Hecla 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 effec t of the delay; and (e) a statement as

to whether, in the opinion of Hecla, such event may cause or

contribute to an endangerment to public health, welfare or the

environment. Hecla shall exercise best effort s to avoid or

minimize any delay and any effect s of a delay. Failure to comply

with the above requirements may preclude Hecla from asserting any

claim of Force Majeure.

D29.A(EN ) 24 08/20/9 1
58. 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 for a period of time not to

exceed the actual duration of the delay caused by the Force

Majeure event. 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

or other obligation.

59. If EPA does not in good faith agree that the delay

or anticipated delay has been or will be caused by a Force

Majeure event or does not agree with Hecla on the length of the

extension, EPA may reject Hecla' s Force Majeure claim or claim

for extension, as the case may be.

•

XXIII . REIMBURSEMENT OF OVERSIGHT COST S

6 0. Within sixty (60 ) days of receipt of Hecla' s

termination certification required by Paragraph 80 of this Order,

EPA will submit to Hecla a detailed accounting of all response

costs, including both direct and indirect response costs,

incurred by the United States after the effective date of this

Order in overseeing the implementation of the Work. To the

extent these costs are not disputed, Hecla shall , within thirty

>-

(30 ) days of receipt, remit a certified check or money order for

the amount of all uncontested costs made payable to the "EPA

D29.A(EN ) 25 08/20/9 1
Hazardous Substance Superfund." Remittances should specificall y

reference the identity of the site and be addressed to:

Mellon Bank E PA Region VIII Attn : Superfun d Accounting P.O. BOX 360859M Pittsburgh, PA 15251

61. Hecla may contest payment of any cost under

Paragraph 60, 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 XX of this Order before payment is due. The written

request for dispute resolution shall specificall y identify the

contested costs and provide a detailed explanation of the basis

f or the objection. In the dispute resolution process, Hecla

bears the burden of proving that an accounting error has been

made or that the costs are inconsistent with CERCLA or the NCP.

62. If payment is not received by EPA when payment is

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

the accounting by EPA for the costs specified. 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 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.

D29.A(EN ) 26 08/20/91
63. The United States reserves its rights to bring an

action against Hecla to enforce the cost reimbursement provisions

of this Order and to seek penalties pursuant to Section 109 of

CERCLA, 42 U.S.C . § 9609.

XXIV . RESERVATION OF RIGHTS AND OTHER CLAIMS AND RELIEF

64. Subject only to the express terms of this Order,

each party reserves all rights and defenses it may have related

to the Site and the Consent Order. Subject only to the express

terms of this Order, EPA reserves all rights and defenses ,

pursuant to any available legal authority, that it may have

against Hecla or any other person or entity related to the

^

California Gulch site, including, but not limited to, the right

to take any action pursuant to CERCLA or any other legal

authority for injunctive relief , stipulated penalties, statutory

penalties and/or punitive damages or to undertake any further

removal, remedial, response, investigation or other activities at

the California Gulch Site otherwise authorized by law.

65. Except as expressly provided in this Order,

nothing in this Order shall waive or otherwise affec t any rights

or defenses Hecla has under CERCLA to contest any liabilit y to

the United States or any other person or entity, including, but

not limited to, defenses under Section 107(b) 42 U.S.C .

§ 9607(b) , inclusive of all paragraphs. Further, except as

expressly provided herein, nothing in this Order waives or

otherwise affect s the rights of Hecla to maintain any common law

D29.A(EN ) ' 27 08/20/9 1
or statutory suit or claim or to seek contribution from any other

person or entity who is liable or potentiall y liable, under

Section 107(a) 42 U.S.C . § 9607(a) , as is also set forth in

Section 113(f ) and (g) of CERCLA 42 U.S.C . §S 96l3(f ) and (g) ,

inclusive of all paragraphs.

66. In entering into this Order, Hecla waives any

right to seek reimbursement under Section 106(b ) of CERCLA,

42 U.S.C . S 9606(b) , for the Work. Hecla also waives any right

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

42 U.S.C . SS 9611, 9612, for the Work. Thi s Order does not

constitute any decision on preauthorization of funds under

Section lll(a)(2 ) of CERCLA, 42 U.S.C . § 9611(a)(2) . Hecla

further waives any statutory and common law claim against the

United States, including, but not limited to, contribution and

counterclaims, relating to, or arising out of, performance of the

Work.

67. Except as 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

liabilit y 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, pollutant s or

contaminants found at, taken to or taken from the Site.

68. Hecla shall bear its own costs and attorneys fees

incurred in connection with this Order.

D29.A(EN ) 28 08/20/9 1
69. Upon completion of the Work, Hecla shall not be

liable to EPA for: (1) the Work performed by Hecla pursuant to

this Order; and (2) the work performed as part of and in

connection with the 1991 Summer Remedial Investigation (see

Exhibit B), within the geographic area depicted in the RI/FS

Study Hap dated Hay 10, 1991 (see Exhibit C), and any costs,

including but not limited to oversight costs, incurred in

•

connection therewith. Pursuant to 42 U.S.C. , § 9613(f)(2) , Hecla

shall also be entitled to contribution protection for all matters

covered by this settlement. So long as Hecla is in compliance

with this Order and Hecla and EPA are in "good faith"

negotiations "step two" as described in Paragraph 6, EPA also

agrees, on behalf of the United States , not to sue or pursue

claims in the pending action against Hecla prior to completion of

the Work for any past response costs.

XXV . DISCLAIMER S

70. Thi s Consent Order shall not be used in any other

legal or administrative proceeding as evidence of a violation of

l aw or as an admission against Hecla' s or EPA's interests. The

Parties agree that the resolution of this matter by this Consent

Order shall not constitute a precedent in any future matter

between the Parties. The only judicial or administrative

proceeding in which EPA may use this Order is one brought by EPA •

to enforce Hecla' s obligations under this Consent Order. Hecla

expressly denies the Conclusions of Law contained herein.

D29.A(EN ) 29 08/20/9 1
V• '>

XXVI . EFFEC T OF ORDER

71. Nothin g in this Order shall be construed to create

any rights in, or grant any cause of action to, any person not a

party to this Order. The preceding sentence shall not be

construed to waive or nullif y any rights that any person not a

•

signatory to this Order may have under applicable law. Each of

the Parties expressly reserves any and all rights (includin g any •

right to contribution), defenses , claims, demands and causes of

action which each party may have with respect to any matter,

transaction or occurrence relating in any way to the California

Gulch Site against any person not a party hereto.

72. Hecla agrees to notif y the United States in

writing of any suit or claim by it for contribution for matters

related to this Order, providing the United States with a copy

of the initial pleadin g at the time of initiation of such suit or

claim. Hecla also agrees that with respect to any suit or claim

for contribution brought against it for matters related to this

Order that Hecla will notif y in writing the United States within

thirty (30 ) days of service of the complaint on them.

73. In any subsequent administrative or judicial

proceeding initiated by the United States against Hecla for

injunctive relief , recovery of response costs or other

appropriate relief relating to the California Gulch Site , Hecla

shall not assert, and may not maintain, any defense or claim

based upon the principles of waiver, res judicata. collateral

estoppel , issue preclusion, claim-splittin g or other defenses

t D29.A(EN ) 30 08/20/9 1
based upon any contention that the claims raised by the United

States in the subsequent proceeding were or should have been

brought in the instant case.

XXVII . INDEMNIFICATIO N •

74. The United States shall not be liable for any

injury or damage to persons or property resulting from acts or

omissions of Hecla, or its contractors, in implementing the

requirements of this Order.

75. Hecla agrees to indemnify and hold the United

. States Government, its agencies, departments, agents and

employees harmless from any and all claims or causes of action

arising from or on account of acts or omissions by Hecla, its

employees, agents, servants, receivers, successors or assigns, or

any person, including, but not limited to, firms , corporations,

subsidiaries and contractors, in carrying out activities under

this Order. The United States Government or any agency or

authorized representations thereof shall not be asserted as a

party to any contract entered into by Hecla in carrying out

activities under this Order.

XXVIII . EFFECTIV E DATE AN D SUBSEQUENT MODIFICATION

76. The effective date of this Order shall be, after

it is signed by Hecla, on the date it is signed by EPA.

77. Thi s Order may be amended by mutual agreement of

EPA and Hecla. Amendments shall be in writing and shall be

D29.A(EN ) 31 08/20/9 1
effective when signed by both Hecla and- EPA. EPA Project

Coordinators do not have the authority to sign amendments to the

Order.

78. No informal advice, guidance suggestions,

assurances, or comments by EPA or its authorized representatives

shall modif y the terms and conditions of this Order or relieve

Hecla of its obligations under this Order, including its

obligations to obtain approvals pursuant to this Order. Any

deliverables, plans , technical memoranda, reports (other than

progress reports), specifications, schedules and the'wor k

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

incorporated into this Order. Any noncompliance with such EPA-

^

approved documents shall be considered a violation of this Order.

XXIX . NOTICE S

79. Except as otherwise provided herein, all notices

required or otherwise provided pursuant to this Order shall be in

writing.

XXX . TERMINATION AN D SATISFACTION

80. Except for the obligations set out in

Sections XIX , XXIII and XXIV which shall survive in accordance

with the terms of those paragraphs, this Order shall terminate

when: (1) Hecla demonstrates in writing and certifies to the

satisfaction of EPA that all activities required under this Order

have been performed; and (2) EPA has approved the certification .

D29.A(EN ) ' 32 OB/20/91
f T

Such certification approval shall be provided in a timely

fashion , recognizing the mutual objectives of the parties in

entering into this Order.

81. The certificatio n shall be signed by a responsible

official representing Hecla. The representative shall make the

followin g attestation: "I certif y 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.

XXXI . SIGNATORIE S

8 2. The undersigned representatives of Hecla certif y

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

conditions of this Order and to execute and legall y bind such

• «. " .

party to this document.

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

each of which when executed and delivered to EPA shall be deemed

to be an original, but such counterparts shall together

constitute one and the same document.

IT IS SO ORDERED AND AGREED:

UNITE D STATES ENVIRONMENTA L PROTECTION AGENCY

Dated

D29.A(EN ) 33 08/20/9 1
HECLA MININ G COMPAN Y

BY. Titl e Senior Vice President

Dated

D29.A(EN ) 34 08/20/9 1
EXHIBIT B

1991 SUMMER REMEDIAL INVESTIGATION

1. Demographics Work Plan.

2. Work Plan for Samplin g and Analysi s of Lead Occurrence

in and Immediatel y Adjacen t to Residential Areas.

 /

3. Soi l Investigation Work Plan (this is being executed by Walsh fo r ASARCO) .

4. Mine Waste Pile Remedial Investigation Work Plan.

5. Tailin g Disposal Area Remedial Investigation Work Plan.

6. Surfac e Water, Bed Material and Aquatic Ecosystem Data Collectio n Program Work Plan.

7. Metal Speciatio n and Source Characterization Draf t Work Plan.

8. Hydrogeologic Work Plan.

9. Smelter Site Investigation Work Plan.

1 0. Soil s Investigatio n Work Plan (in draf t by Camp, Dresser & McGee for Resurrection).

1 1. Sla g Pile Remedial Investigation.