Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Notices 62595

paragraph (m) of 40 CFR 52.2454 to EPA

Region III at the same time the notice is

being forwarded for publication in the

newspaper.

c. The VADEQ will forward to EPA

Region III copies of the final PSD permit

and any future permit modifications at

the time of issuance.

7. The VADEQ will obtain prior EPA

concurrence on any matter involving the

interpretation of sections 160–169 of the

Clean Air Act or 40 CFR 52.2454 to the

extent that implementation, review,

administration or enforcement of these

sections have not been covered by

determinations or guidance sent by EPA

to the VADEQ.

8. This delegation of authority should

not be construed as a transfer of PSD

responsibility under section 110(a)(2)(J)

of the Clean Air Act, since such a

transfer would involve different

procedures and considerations.

Delegation: Pursuant to the authority

delegated to him by the Administrator,

the Regional Administrator is formally

notifying the Director of the VADEQ

that the Commonwealth is hereby

delegated the authority to implement

and enforce the site-specific PSD rule

for the Merck Stonewall Plant, 40 CFR

52.2454, as of the publication date of

this notice.

ADDITIONAL INFORMATION:

A. Effective Date

Pursuant to 5 U.S.C. 553(d)(3) and 42

U.S.C. 6930(b)(3), the Regional

Administrator finds good cause for

making this delegation of authority

effective immediately because it is an

administrative change and not one of

substantive content. Further, the Merck

& Co., Inc. Stonewall Plant is the only

regulated entity affected by this

delegation. Merck has full notice of this

delegation and is prepared to comply

immediately with the permit to be

issued expeditiously under the rule that

is being delegated to the Commonwealth

of Virginia.

B. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from E.O. 12866 review.

C. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000. This delegation would

not have a significant impact on a

substantial number of small entities

because it only affects one source, the

Merck Stonewall Plant, which is not a

small entity. Therefore, EPA certifies

that this action will not have a

significant economic impact on a

substantial number of small entities.

D. Paperwork Reduction Act

This action applies only to one

company, and therefore requires no

information collection activities subject

to the Paperwork Reduction Act, and

therefore no information collection

request (ICR) will be submitted to the

Office of Management and Budget

(OMB) for review in compliance with

the Paperwork Reduction Act, 44 U.S.C.

3501 et seq.

E. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), P.L. 104–

4, establishes requirements for Federal

agencies to assess the effects of their

regulatory actions on State, local, and

tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year. Before EPA

establishes any regulatory requirements

that may significantly or uniquely affect

small governments, including tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan.

As noted above, this delegation is

limited to Merck’s facility in Elkton,

Virginia. EPA has determined that this

delegation contains no regulatory

requirements that might significantly or

uniquely affect small governments. EPA

has also determined that this delegation

does not contain a Federal mandate that

may result in expenditures of $100

million or more for State, local, and

tribal governments, in the aggregate, or

the private sector in any one year. Thus,

today’s delegation is not subject to the

requirements of sections 202 and 205 of

the UMRA.

Dated: November 17, 1997.

W. Michael McCabe,

Regional Administrator.

[FR Doc. 97–30811 Filed 11–21–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

[FRL–5926–5]

Notice of Availability of and Initiation

of a 30 Day Public Comment Period for

Two Administrative Orders on Consent

for de minimis Waste Contributors and

One Administrative Order on Consent

for a de micromis Waste Contributor

Pursuant to the Comprehensive

Environmental Response

Compensation and Liability Act

(CERCLA)

Notice is hereby given that on October

15, 1997, 3 administrative orders on

consent (‘‘Orders’’) between the United

States Environmental Protection

Agency, Region VIII and various parties

potentially responsible for costs

incurred by the United States for

cleaning up the Summitville Mine

Superfund Site (collectively, ‘‘the

Settling Parties’’) were approved by the

Assistant Attorney General of the

Department of Justice, Environment and

Natural Resources Division, on behalf of

the Attorney General of the United

States.

Because of the minimal nature, by

volume and toxicity, of the hazardous

substances allegedly contributed by the

Settling Parties to the Site, EPA

determined that the Settling Parties are

eligible for either a de minimis or de

micromis settlement in accordance with

Section 122(g) of CERCLA.

The first settlement is a de micromis

Order with Newmont Exploration

Limited, Newmont Mining Corporation,

and Newmont Gold Company

(collectively, ‘‘Newmont’’). It settles

Newmont’s potential liabilities under

CERCLA Sections 106 and 107 and

RCRA Section 7003 for extremely

limited historic exploration activities

Newmont undertook at the Site. Because

of the minuscule nature of Newmont’s

contribution of waste at the Site, and in

accordance with EPA guidance, EPA is

entering into this without requiring the

payment of a settlement amount.

EPA is also entering into 2 de minimis

Orders—one with ASARCO, Inc. and

one with ARCO Environmental

Remediation, L.L.C. These Orders settle

ARCO and ASARCO’s potential

liabilities under CERCLA Sections 106

and 107 and RCRA Section 7003 for the

limited historic exploration activities

they undertook at the Site. ASARCO

and ARCO are paying the United States

settlement amounts of $86,052.73 and

$95,000, respectively. All 3 Orders are

based on the respective applicable EPA

model Orders.

EPA Region VIII will receive

comments relating to the proposed
62596 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Notices

Orders for a period of thirty days from

the date of publication of this notice.

Comments should be addressed to

Nancy Mangone, Enforcement Attorney

(8ENF–L), U.S. EPA Region VIII, 999

18th Street, Denver, Colorado 80202 and

should refer to the Summitville Mine

Superfund Site, EPA Docket Nos.

CERCLA–VIII–98–02, CERCLA–VIII–98–

03, and CERCLA–VIII–98–04. In

accordance with Section 7003(d) of

RCRA, 42 U.S.C. 6973(d), commenters

may request a public meeting in the

affected areas.

The proposed Orders may be

examined in person at the Superfund

Records Center, EPA Region VIII, 999

18th Street, Suite 500, Denver, Colorado

80202, (303) 312–6489. A copy of each

Order may also be obtained by mail

from the EPA Region VIII Superfund

Records Center (8EPR–PS) at the

address listed above. In requesting a

copy, please refer to the referenced case

and number. There is no cost for

requesting this document.

Carol Rushin,

Assistant Regional Administrator, Office of

Enforcement, Compliance and Environmental

Justice, U.S. EPA Region VIII.

CERCLA Section 122(g)(4) De Micromis

Administrative Order on Consent

In the Matter of: Summitville Mine

Superfund Site, Site No. Y3; Newmont

Exploration Limited, Newmont Gold

Company, and Newmont Mining

Corporation; Respondents.

Proceeding under section 122(g)(4) of the

Comprehensive Environmental Response,

Compensation, and Liability Act, as amended

(42 U.S.C. § 9622(g)(4)). EPA Docket Number

CERCLA–VIII–98–02.

I. Jurisdiction

1. This Administrative Order on

Consent (‘‘Consent Order’’ or ‘‘Order’’)

is issued pursuant to the authority

vested in the President of the United

States by Section 122(g)(4) of the

Comprehensive Environmental

Response, Compensation, and Liability

Act of 1980, as amended (CERCLA), 42

U.S.C. 9622(g)(4), to reach settlements

in actions under section 106 or 107 of

CERCLA, 42 U.S.C. 9606 or 9607. The

authority vested in the President has

been delegated to the Administrator of

the United States Environmental

Protection Agency (EPA) by Executive

Order 12580, 52 FR 2923 (Jan. 29, 1987),

and further delegated to the Regional

Administrators of the EPA by EPA

Delegation No. 14–14–E. This authority

has been redelegated to the Assistant

Regional Administrator for

Enforcement, Compliance and

Environmental Justice.

2. This Order is issued to Newmont

Exploration Limited, Newmont Mining

Corporation, and Newmont Gold

Company (Respondents). The

Respondents consent to and will not

contest EPA’s jurisdiction to issue this

Consent Order or to implement or

enforce its terms.

II. Statement of Purpose

3. By entering into this Consent

Order, the mutual objectives of the

Parties are:

a. to reach a final de micromis

settlement between the Parties with

respect to the Site pursuant to Section

122(g) of CERCLA, 42 U.S.C. 9622(g),

which resolves Respondents potential

civil liability under Sections 106 and

107 of CERCLA, 42 U.S.C. 9606 and

9607 and Section 7003 of the Resource

Conservation and Recovery Act, as

amended, 42 U.S.C. 6973, for injunctive

relief with regard to the Site, and for

response costs incurred and to be

incurred at or in connection with the

Site, thereby reducing litigation relating

to the Site;

b. to simplify any remaining

administrative and judicial enforcement

activities concerning the Site by

eliminating the potentially responsible

parties covered by this Order from

further involvement at the Site; and

c. to protect Respondents, and to the

extent provided herein, their affliates,

successors and assigns, from any

lawsuit a potentially responsible party

could bring against them for response

costs incurred and to be incurred at or

in connection with the Site and to

provide full and complete contribution

protection for Respondents, and to the

extent provided herein, their affliates,

successors and assigns, with regard to

the Site pursuant to Sections 122(f)(2)

and 122(g)(5) of CERCLA, 42 U.S.C.

9622(f)(2) and 9622(g)(5).

III. Definitions

Unless otherwise expressly provided

herein, terms used in this Consent Order

that are defined in CERCLA or in

regulations promulgated under CERCLA

shall have the meaning assigned to them

in the statute or regulations. Whenever

the terms listed below are used in this

Consent Order, the following definitions

shall apply:

CERCLA shall mean the

Comprehensive Environmental

Response, Compensation, and Liability

Act of 1980, as amended, 42 U.S.C.

9601, et seq.

Consent Order or Order shall mean

this Administrative Order on Consent

and all appendices attached hereto. In

the event of conflict between this Order

and any appendix, the Order shall

control.

Day shall mean a calendar day. In

computing any period of time under this

Consent Decree, where the last day

would fall on a Saturday, Sunday or

federal holiday, the period shall run

until the close of business of the next

working day.

EPA shall mean the United States

Environmental Protection Agency and

any successor departments or agencies.

EPA Hazardous Substance Superfund

shall mean the Hazardous Substance

Superfund established by the Internal

Revenue Code, 26 U.S.C. 9507.

Information currently known to the

United States shall mean that

information and those documents

contained in the Administrative Record

and Site File for the Site as of the

effective date of this Order.

New Information shall mean

information not contained in the

Administrative Record or Site File for

the Site as of the effective date of this

Order.

Paragraph shall mean a portion of this

Consent Order identified by an Arabic

numeral.

Parties shall mean EPA and the

Respondents.

Respondents shall mean Newmont

Exploration Limited, Newmont Mining

Corporation, and Newmont Gold

Company.

Response Costs shall mean all costs of

‘‘response’’ as that term is defined by

Section 101(25) of CERCLA.

Section shall mean a portion of this

Consent Order identified by a Roman

numeral.

Site shall mean the Summitville Mine

Superfund Site Remedial Investigation/

Feasibility Study Area within Rio

Grande County, Colorado.

Approximately 550 acres of the Site,

known as the Summitville Minesite,

have been disturbed by mining activities

and are currently undergoing remedial

action. As depicted on the map attached

as Appendix A, the Site consists of

portions of the Alamosa River

Watershed EPA believes may have been

impacted by releases of hazardous

substances from the Summitville

Minesite. More specifically, the Site

includes the following areas: Area 1—

Summitville Mine Site—The area within

the mine permit boundaries; Area 2—

Wightman Fork-The Wightman Fork and

associated wetlands between the down

stream mine permit boundary to the

confluence with the Alamosa River;

Area 3—Alamosa River-The Alamosa

River and associated wetlands from the

confluence with the Wightman Fork

downstream to the inlet of the Terrace

Reservoir; Area 4—Terrace ReservoirThe area which contains the Terrace

Reservoir; and Area 5—Below Terrace
Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Notices 62597

Reservoir-The area below the Terrace

Reservoir which has been impacted by

contamination transported by the

Alamosa River and irrigation canals.

United States shall mean the United

States of America, including its

departments, agencies and

instrumentalities.

IV. Statement of Facts

4. The United States Environmental

Protection Agency (EPA) initiated

removal response actions at the Site on

December 18, 1992 to address releases

or threatened releases of hazardous

substances into the Alamosa River and

surrounding environment pursuant to

the President’s authority under Sections

104 and 106 of the Comprehensive

Environmental Response,

Compensation, and Liability Act of

1980, as amended by the Superfund

Amendments and Reauthorization Act

of 1986, Pub. L. 99–499, 42 U.S.C. 9604

and 9606 (CERCLA).

5. On May 31, 1994, EPA listed the

Site on the National Priorities List as a

result of releases or threatened releases

of hazardous substances at or from the

Site.

6. On December 15, 1994, EPA issued

four Interim Records of Decision

selecting the interim remedial actions to

be implemented for the following

activities and/or areas at the

Summitville Mine Site: Water

Treatment (WT IROD), Reclamation, the

Heap Leach Pad (HLP IROD) and the

Cropsy Waste Pile, Beaver Mud Dump/

Summitville Dam Impoundment, and

Mine Pits (CWP IROD).

7. As of March 31, 1997, the United

States incurred approximately $109

million in response costs responding to

the release or threatened release of

hazardous substances at or in

connection with the Site. The United

States continues to incur response costs

in responding to the release or threat of

release of hazardous substances at or in

connection with the Site.

8. Newmont Exploration Limited

(NEL) conducted extremely limited

exploration activities at the Site. NEL

was previously a wholly owned

subsidiary of Newmont Mining

Corporation and is currently a wholly

owned subsidiary of Newmont Gold

Company.

9. Newmont Exploration Limited

leased some property within the Site for

approximately seven months from June

1953 to January 1954. Pursuant to the

lease, limited exploratory activities were

conducted, including conducting

nonintrusive geophysical surveys of the

area, collecting small surface soil and

rock samples for assaying, drilling

approximately nine small diameter

exploratory holes and conducting

limited reconnaissance examinations of

portions of the underground mine

workings. Exploratory drilling activities

such as those conducted at the Site are

designed to collect core samples to

evaluate the geology of the area.

Respondents assert that such

exploratory activities did not generate

mine wastes.

10. The total volume of waste rock,

tailings and other mine waste (including

the Heap Leach Pad) requiring

remediation at the Site is approximately

11 million cubic yards. According to the

WT IROD, approximately 321,000

pounds of copper per year, if left

untreated, would contaminate the

receiving waters surrounding the Site,

including the Wightman Fork and

Alamosa River. EPA has determined

parties are eligible for a de minimis

settlement if their contribution of mine

waste and metals loading is equal to or

less than 3% of the total volume of

hazardous substances contributed to

each of these media. The Respondents’

contribution of hazardous substances to

these media is below the 3% de minimis

cut-off established by EPA for the Site.

De micromis parties are parties that

have generated less than .0001% of the

hazardous substances found at the Site.

Respondents’ alleged contribution is

less than .0001% of the hazardous

substances found at the Site.

11. Based on information currently

known to the United States, EPA has

calculated the Respondents’ de

micromis eligibility as follows:

Respondents assert that the activities of

NEL did not contribute any mine wastes

to the Site. Even assuming a worst case

scenario where all of the materials

generated by NEL’s exploration activity

were deposited at the Site, EPA has

estimated that the amount of hazardous

substances allegedly contributed to the

Site by Respondents constitutes

substantially less than .0001% of the

total volume of waste rock, tailings or

mine waste requiring remediation at the

Site. EPA has also determined that the

Respondents’ activities have not

contributed any copper loading to the

waters at or emanating from the Site.

12. The material allegedly generated

and disposed of by the Respondents

therefore involves only a minuscule

portion of the total hazardous

substances generated or disposed of at

the Site. EPA has also concluded that

the hazardous substances allegedly

contributed to the Site by Respondents

are not significantly more toxic or of

significantly greater hazardous effect

than other hazardous substances at the

Site.

13. EPA estimates that the total

response costs incurred and to be

incurred at or in connection with the

Site by the EPA Hazardous Substance

Superfund will be $152 million. EPA

has determined that the amount of

waste which may have been contributed

to the Site by the Respondents is so

minor that it would be inequitable to

require them to help finance or perform

cleanup at the Site.

V. Determination

14. Based upon the Statement of Facts

set forth above and on the information

currently known to the United States,

EPA has determined that:

(1) The Site is a ‘‘facility’’ as that term

is defined in Section 101(9) of CERCLA,

42 U.S.C. 9601(9).

(2) Each of the Respondents is a

‘‘person’’ as that term is defined in

Section 101(21) of CERCLA, 42 U.S.C.

9601(21).

(3) Each of the Respondents may be a

‘‘potentially responsible party’’ within

the meaning of Section 122(g)(1) of

CERCLA, 42 U.S.C. 9622(g)(1).

(4) There has been an actual or

threatened ‘‘release’’ of a ‘‘hazardous

substance’’ from the Site as those terms

are defined in Sections 101 (22) and (14)

of CERCLA, 42 U.S.C. 9601 (22) and

(14).

(5) The amount of hazardous

substances contributed to the Site by the

Respondents and the toxic or other

hazardous effects of the hazardous

substances contributed to the Site by the

Respondents are minuscule in

comparison to other hazardous

substances at the Site within the

meaning of Section 122(g)(1)(A) of

CERCLA, 42 U.S.C. 9622(g)(1)(A).

(6) Respondents are eligible for a de

micromis settlement because they have

contributed no more than a minuscule

amount of hazardous substance, if any,

to the Site.

(7) The terms of this Consent Order

are consistent with EPA policy and

guidance for settlements with de

micromis waste contributors, including

but not limited to, ‘‘Revised Guidance

on CERCLA Settlements with De

Micromis Waste Contribution,’’ OSWER

Directive #9834.17 (June 3, 1996).

(8) Prompt final settlement with the

Respondents is practicable and in the

public interest within the meaning of

Section 122(g)(1) of CERCLA, 42 U.S.C.

9622(g)(1).

(9) The settlement of this case without

litigation and without the admission or

adjudication of any issue of fact or law

is the most appropriate means of

resolving any liability that the

Respondents may have for response

actions and response costs with respect
62598 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Notices

to all releases or threatened releases at

or in connection with the Site.

VI. Order

15. Based upon the Information

currently known to the United States

and the Statement of Facts and

Determinations set forth above, and in

consideration of the promises and

covenants set forth herein, the following

is hereby Agreed to and Ordered;

VII. Parties Bound

16. This Consent Order shall apply to

and be binding upon EPA and upon

Respondents and their successors and

assigns. Any change in ownership or

corporate or other legal status of the

Respondents including, but not limited

to, any transfer of assets or real or

personal property, shall in no way alter

such Respondents’ responsibilities

under this Consent Order. Each

signatory to this Consent Order certifies

that he or she is authorized to enter into

the terms and conditions of this Consent

Order and to execute and bind legally

the party represented by him or her.

VIII. Certification of Respondents

17. By signing this Consent Order, the

Respondents certify that, to the best of

their knowledge and belief, they have:

i. conducted a thorough,

comprehensive, good faith search for

documents, and have fully and

accurately disclosed to EPA, all nonprivileged documents currently in their

possession, or in the possession of their

officers, directors, employees,

contractors or agents, which relate in

any way to their liabilities under

CERCLA and RCRA for ownership,

operation, exploration activities or

control of the Site;

ii. not altered, mutilated, discarded,

destroyed, or otherwise disposed of any

records, documents, or other

information relating to their potential

CERCLA and RCRA liabilities regarding

the Site after notification of such

potential liabilities; and

iii. fully complied to EPA’s

satisfaction with any and all EPA

requests for information pursuant to

Sections 104(e) and 122(e) of CERCLA,

42 U.S.C. 9604(e) and 9622(e).

IX. Covenants Not To Sue

18. a. Except as provided in Section

X (Reservation of Rights) of this Order,

the United States covenants not to sue

or take any other civil or administrative

action against the Respondents for

reimbursement of response costs or for

injunctive relief pursuant to Section 106

or 107(a) of CERCLA, 42 U.S.C. 9606 or

9607(a) or Section 7003 of the Resource

Conservation and Recovery Act, as

amended, 42 U.S.C. 6973, relating to the

Site.

b. The United States’ covenant not to

sue extends to Respondents and to their

affiliates, successors and assigns, but

only to the extent that the liability of

such affiliates, successors and assigns is

derivative of Respondents’ liability for

those acts set forth in Paragraph 9,

Section IV of this Order. The United

States’ covenant not to sue does not

extend to any other person.

X. Reservation of Rights

19. The covenant not to sue by the

United States set forth in Paragraph 18

of this Order does not pertain to any

matters other than those expressly

specified in Paragraph 18. The United

States reserves, and this Order is

without prejudice to, all rights against

the Respondents with respect to all

other matters, including but not limited

to the following:

(a) criminal liability;

(b) any liability against Respondents

that results from their future

disposal activities at the Site; or

(c) liability for damages for injury to,

destruction of, or loss of natural

resources, including any cost of

assessing the injury to, destruction

of, or loss of such natural resources.

20. Notwithstanding any other

provision in this Consent Order, the

United States reserves, and this Consent

Order is without prejudice to, the right

to institute judicial or administrative

proceedings against the Respondents

seeking to compel Respondents to

perform response actions at the Site

and/or to reimburse the United States

for response costs if New Information is

discovered that the Respondents no

longer qualify for a de micromis

settlement under the criteria stated in

Paragraphs 10–12 of this Order.

21. For purposes of Paragraph 20,

‘‘New Information’’ shall not include

any recalculation of the total volume of

waste rock, tailings or mine waste

containing hazardous substances

requiring remediation at the Site based

solely on Information currently known

to the United States.

XI. Covenant Not To Sue By

Respondents

22. The Respondents covenant not to

sue and agree not to assert any claims

or causes of action against the United

States, or its contractors or employees

with respect to the Site or this Order,

including, but not limited to:

i. any direct or indirect claim for

reimbursement from the Hazardous

Substance Superfund (established

pursuant to the Internal Revenue Code,

26 U.S.C. 9507) through Sections

106(b)(2) , 111, 112 or 113 of CERCLA,

42 U.S.C. 9606(b)(2) , 9611, 9612 or

9613;

ii. any claim arising out of response

activities at the Site; and

iii. any claim against the United

States pursuant to Sections 107 or 113

of CERCLA, 42 U.S.C. 9607 or 9613,

relating to the Site.

23. Nothing in this Order shall be

deemed to constitute preauthorization

of a claim within the meaning of Section

111 of CERCLA, 42 U.S.C. 9611, or 40

CFR 300.700(d).

24. The Respondents also waive any

challenge they may have to any

response action selected in any Action

Memorandum, Interim Record of

Decision or final Record of Decision for

the Site.

XII. Effect of Settlement; Contribution

Protection

25. Nothing 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 nullify any rights that any person not

a signatory to this Order may have

under applicable law. The United States

and the Respondents each reserve any

and all rights (including, but not limited

to, 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 Site against

any person not a party hereto.

26. Respondents consent and agree to

comply with and be bound by the term

of this Order. The United States and the

Respondents agree that this Order,

Respondents’ consent to this Order and

actions in accordance with this Order

shall not in any way constitute or be

construed as an admission of any

liability by Respondents or of any legal

or factual matters set forth in this Order.

Further, neither this Order,

Respondents’ consent to this Order, nor

Respondents’ actions in accordance

with this Order shall be admissible in

evidence against Respondents without

their consent, except in a proceeding to

enforce this Order. Respondents do not

admit, and retain the right to controvert

in any subsequent proceedings other

than proceedings to implement or

enforce this Consent Order, the validity

of the Statement of Facts and

Determinations contained in this

Consent Order.

27. With regard to claims for

contribution against Respondents and

their affiliates, successors and assigns

for matters addressed by this Order, the

Parties hereto agree that Respondents
Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Notices 62599

and their affiliates, successors and

assigns are entitled, as of the effective

date this Order, to such protection from

contribution actions or claims as is

provided by Sections 113(f)(2) and

122(g)(5) of CERCLA, 42 U.S.C.

9613(f)(2) and 9622(g)(5) for ‘‘matters

addressed’’ in this Consent Order.

‘‘Matters addressed’’ by this Order shall

include all claims the United States has

taken or brought or could bring or any

other civil or administrative action the

United States could take against

Respondents, or their affiliates,

successors and assigns only to the

extent that their liability is derivative of

Respondents’ liability for those acts set

forth in Paragraph 9, Section IV of this

Order, for injunctive relief or for

reimbursement of response costs

pursuant to Section 106 or 107(a) of

CERCLA, 42 U.S.C. 9606 or 9607(a) or

Section 7003 of the Resource

Conservation and Recovery Act, as

amended, 42 U.S.C. 6973, related to the

Site.

XIII. Public Comment

28. This Order shall be subject to a

thirty-day public comment period in

accordance with Section 122(i) of

CERCLA, 42 U.S.C. 9622(i). In

accordance with Section 122(i)(3), 42

U.S.C. 9622(i)(3), EPA may withdraw or

modify its consent to this order if

comments received disclose any facts or

considerations which indicate that this

Order is inappropriate, improper, or

inadequate.

XIV. Attorney General Approval

29. The Attorney General or her

designee has approved the settlement

embodied in this order in accordance

with Section 122(g)(4) of CERCLA, 42

U.S.C. 9622(g)(4).

XV. Effective Date

30. The effective date of this Order

shall be the date upon which the

Assistant Regional Administrator, EPA

Region VIII notifies the Respondents

that the public comment period

undertaken pursuant to Paragraph 28 of

this Order has closed and that

comments received, if any, do not

require EPA’s withdrawal from or the

modification of any terms of this Order.

It is so agreed:

Newmont Mining Corporation, Newmont

Exploration Limited and Newmont Gold

Company.

Dated: July 28, 1997.

Joy E. Hansen,

Vice President.

It is so ordered and agreed:

Environmental Protection Agency, Region

VIII.

Dated: September 2, 1997.

Martin Hestmark, for Carol Rushin,

Assistant Regional Administrator, Office of

Enforcement, Compliance and Environmental

Justice.

CERCLA Section 122(g)(4) De Minimis

Waste Contributor Administrative

Order

In The Matter Of: Summitville Mine

Superfund Site, Site No. 08–Y3; ARCO

Environmental Remediation, L.L.C.;

Respondent.

Proceeding Under Section 122(g)(4) Of The

Comprehensive Environmental Response,

Compensation, And Liability Act, As

Amended (42 U.S.C. 9622(g)(4)). EPA Docket

Number CERCLA–VIII–98–03.

I. Jurisdiction

1. This Administrative Order on

Consent (Consent Order or Order) is

issued pursuant to the authority vested

in the President of the United States by

Section 122(g)(4) of the Comprehensive

Environmental Response,

Compensation, and Liability Act of

1980, as amended (CERCLA), 42 U.S.C.

9622(g)(4), to reach settlements in

actions under Section 106 or 107 of

CERCLA, 42 U.S.C. 9606 or 9607. The

authority vested in the President has

been delegated to the Administrator of

the United States Environmental

Protection Agency (EPA) by Executive

Order 12580, 52 FR 2923 (Jan. 29, 1987),

and further delegated to the Regional

Administrators of the EPA by EPA

Delegation No. 14–14–E. This authority

has been redelegated to the Assistant

Regional Administrator for Ecosystems

Protection and Remediation.

2. This Order is issued to ARCO

Environmental Remediation, L.L.C.

(Respondent). The Respondent agrees to

undertake all actions required by this

Consent Order. The Respondent further

consents to and will not contest EPA’s

jurisdiction to issue this Consent Order

or to implement or enforce its terms.

II. Statement of Purpose

3. By entering into this Consent

Order, the mutual objectives of the

Parties are:

a. to reach a final settlement between

the Parties with respect to the Site

pursuant to Section 122(g) of CERCLA,

42 U.S.C. 9622(g), that allows

Respondent to make a cash payment,

including a premium, to resolve its

alleged civil liability under Sections 106

and 107 of CERCLA, 42 U.S.C. 9606 and

9607 and Section 7003 of the Resource

Conservation and Recovery Act, as

amended, 42 U.S.C. 6973, for injunctive

relief with regard to the Site, and for

response costs incurred and to be

incurred at or in connection with the

Site, thereby reducing litigation relating

to the Site;

b. to simplify any remaining

administrative and judicial enforcement

activities concerning the Site by

eliminating one of the potentially

responsible parties from further

involvement at the Site; and

c. to obtain settlement with

Respondent for its fair share, as

determined by EPA, of response costs

incurred and to be incurred at or in

connection with the Site by the EPA

Hazardous Substance Superfund, and to

provide full and complete contribution

protection for Respondent with regard

to the Site pursuant to Sections 122(f)(2)

and 122(g)(5) of CERCLA, 42 U.S.C.

9622(f)(2) and 9622(g)(5).

III. Definitions

Unless otherwise expressly provided

herein, terms used in this Consent Order

that are defined in CERCLA or in

regulations promulgated under CERCLA

shall have the meaning assigned to them

in the statute or regulations. Whenever

the terms listed below are used in this

Consent Order, the following definitions

shall apply:

CERCLA shall mean the

Comprehensive Environmental

Response, Compensation, and Liability

Act of 1980, as amended, 42 U.S.C.

9601, et seq.

Consent Order or Order shall mean

this Administrative Order on Consent

and all appendices attached hereto. In

the event of conflict between this Order

and any appendix, the Order shall

control.

Day shall mean a calendar day. In

computing any period of time under this

Consent Decree, where the last day

would fall on a Saturday, Sunday, or

federal holiday, the period shall run

until the close of business of the next

working day.

EPA shall mean the United States

Environmental Protection Agency and

any successor departments or agencies.

EPA Hazardous Substance Superfund

shall mean the Hazardous Substance

Superfund established by the Internal

Revenue Code, 26 U.S.C. 9507.

Information currently known to the

United States shall mean that

information and those documents

contained in the Administrative Record

and Site File for the Site as of the

effective date of this Order.

Interest shall mean interest at the rate

specified for interest on investments of

the EPA Hazardous Substance

Superfund established by 26 U.S.C.

9507, compounded on October 1 of each

year, in accordance with 42 U.S.C.

9607(a).
62600 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Notices

New Information shall mean

information not contained in the

Administrative Record or Site File for

the Site as of the effective date of this

Order.

Paragraph shall mean a portion of this

Consent Order identified by an Arabic

numeral.

Parties shall mean EPA and the

Respondent.

Respondent shall mean ARCO

Environmental Remediation, L.L.C.

Response Costs shall mean all costs of

‘‘response’’ as that term is defined by

Section 101(25) of CERCLA.

Section shall mean a portion of this

Consent Order identified by a roman

numeral.

Site shall mean the Summitville Mine

Superfund Site Remedial Investigation/

Feasibility Study Area within Rio

Grande County, Colorado.

Approximately 550 acres of the Site,

known as the Summitville Minesite,

have been disturbed by mining activities

and is currently undergoing remedial

action. As depicted on the map attached

as Appendix A, the Site consists of

portions of the Alamosa River

Watershed EPA believes may have been

impacted by releases of hazardous

substances from the Summitville

Minesite. More specifically, the Site

includes the following areas: Area 1-

Summitville Mine Site—The area within

the mine permit boundaries; Area 2-

Wightman Fork—The Wightman Fork

and associated wetlands between the

down stream mine permit boundary to

the confluence with the Alamosa River;

Area 3-Alamosa River—The Alamosa

River and associated wetlands from the

confluence with the Wightman Fork

downstream to the inlet of the Terrace

Reservoir; Area 4-Terrace Reservoir—

The area which contains the Terrace

Reservoir; and Area 5-Below Terrace

Reservoir—The area below the Terrace

Reservoir which has been impacted by

contamination transported by the

Alamosa River and irrigation canals.

United States shall mean the United

States of America, including its

departments, agencies and

instrumentalities.

IV. Statement of Facts

EPA’s Response Actions and Costs

4. The United States Environmental

Protection Agency (EPA) initiated

removal response actions at the Site on

December 18, 1992 to address releases

or threatened releases of hazardous

substances into the Alamosa River and

surrounding environment pursuant to

the President’s authority under Sections

104 and 106 of the Comprehensive

Environmental Response,

Compensation, and Liability Act of

1980, as amended by the Superfund

Amendments and Reauthorization Act

of 1986, Pub. L. 99–499, 42 U.S.C. 9604

and 9606(a) (CERCLA).

5. On May 31, 1994, EPA listed the

Site on the National Priorities List as a

result of releases or threatened releases

of hazardous substances at or from the

Site.

6. On December 15, 1994, EPA issued

4 Interim Records of Decision selecting

the interim remedial actions to be

implemented for the following activities

and/or areas at the Summitville Mine

Site: Water Treatment (WT IROD),

Reclamation, the Heap Leach Pad (HLP

IROD) and the Cropsy Waste Pile,

Beaver Mud Dump/Summitville Dam

Impoundment, and Mine Pits (CWP

IROD).

7. As of March 31, 1997, the United

States had incurred approximately $109

million in response costs responding to

the release or threatened release of

hazardous substances at or in

connection with the Site. The United

States continues to incur response costs

in responding to the release or threat of

release of hazardous substances at or in

connection with the Site.

Respondent’s Activities and Potential

Liability

8. EPA alleges that the Respondent is

liable for reimbursement of the United

States’ response costs pursuant to

Section 107 of CERCLA, 42 U.S.C. 9607.

9. From mid-1979 until the latter part

of 1983, Respondent’s predecessor-ininterest, Anaconda Minerals Company

(Anaconda), conducted exploration and

related activities at the Site. Due to Site

access limitations, severe weather and

other adverse Site conditions,

Anaconda’s actual on-Site exploration

activities were conducted for an

aggregate period of approximately 17

months, with this period generally

coinciding with the summer season of

each of the years of 1979 through 1983.

10. Anaconda’s exploration and

related activities at the Site, as referred

to in Paragraph 9 above, consisted of: (1)

a core drilling program, consisting of the

development of 380 drill holes. In

accordance with the Colorado Mined

Land Reclamation Division regulations

applicable at the time, these surface

drill holes were properly plugged with

cement and abandoned; (2) limited

access to and exploration of certain

underground mine workings, including

the Science Mine, Copper Hill Mine,

Dexter Mine, Esmond Mine and

Chandler Mine, for the purpose of

mapping and sampling these workings

only; (3) related on-Site activities such

as access road maintenance and road

construction; and (4) implementation of

a hazard elimination program at the

Site, including tailings dam stabilization

work.

11. Based on Anaconda’s findings

from these limited exploration and

related activities, Anaconda determined

it would not be profitable to initiate

mining operations at the Site.

Accordingly, Anaconda terminated or

assigned its leasehold interest in the

Site in early 1984, without conducting

any ore extraction or physical mine

development activities.

12. Anaconda’s surface drilling

activities resulted in the generation of,

at most, 363 cubic yards of waste rock,

which may have remained on-Site.

Waste rock extracted at the Site was

mixed with cement and used to

properly plug and close the drill holes,

accordance with the Colorado Mined

Land Reclamation Division regulations

applicable at the time. Summitville

Consolidated Mining Company Inc.

subsequently mined, milled, processed

or otherwise disturbed this same waste

rock as a result of its unrelated mining

operations.

De Minimis Eligibility

13. The total volume of waste rock,

tailings and other mine waste (including

the Heap Leach Pad) requiring

remediation at the Site is approximately

11 million yds.3 Four million, five

hundred thousand cubic yards of this

material is being remediated pursuant to

the CWP IROD; 6.5 million cubic yards

are being remediated pursuant to the

HLP IROD.

14. According to the WT IROD,

approximately 321,000 pounds of

copper per year, if left untreated, would

contaminate the receiving waters

surrounding the Site, including the

Wightman Fork and Alamosa River.

15. EPA has determined parties are

eligible for a de minimis settlement if

their contribution of mine waste and

metals loading is equal to or less than

3% of the total volume of hazardous

substances contributed to each of these

media.

16. EPA has determined that the

Respondent’s contribution of hazardous

substances to each of these media is

below the 3% de minimis cut-off

established by EPA for the Site.

17. Based on Information currently

known to the United States, EPA has

calculated the Respondent’s de minimis

eligibility as follows: (1) assuming all

waste rock, approximately 363 cubic

yards, generated by Anaconda during its

drilling program remained on-Site, EPA

has estimated that the amount of

hazardous substances allegedly

contributed to the Site by Respondent
Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Notices 62601

constitutes approximately .0033% of the

total volume of waste rock, tailings or

mine waste requiring remediation at the

Site; and (2) because Anaconda’s drill

holes were properly plugged and it did

not rehabilitate or otherwise undertake

mining operations in adits, tunnels or

mine workings hydraulically connected

to the Reynolds Adit, the Respondent’s

activities have not contributed any

copper loading to the waters at or

emanating from the Site.

18. As required by Section 122(g)(1) of

CERCLA, 42 U.S.C. 9622(g)(1), EPA has

therefore determined that: (A) the

amount of material allegedly

contributed by the Respondent is

minimal in comparison to the total

hazardous substances generated or

disposed of at the Site; and (B) the toxic

or hazardous effect of the hazardous

substances allegedly contributed to the

Site by Respondent are minimal in

comparison to the other hazardous

substances at the Site.

19. Section 122(g)(1) of CERCLA, 42

U.S.C. 9622(g)(1), further authorizes

EPA to enter into expedited settlements

under Sections 106 and 107 of CERCLA

if such settlements involve only a minor

portion of the response costs at the

facility concerned. EPA estimates that

the total response costs incurred and to

be incurred at or in connection with the

Site by the EPA Hazardous Substance

Superfund will be $152 million. EPA

calculated the settlement amount to be

paid by Respondent as follows: EPA and

Respondent agree that the material

generated and disposed of by

Respondent came to be located in the

areas to be remediated pursuant to CWP

and HLP IRODs. EPA and Respondent

estimated that of the 363 cubic yards of

material generated and disposed of by

Respondent on the Site, 123 cubic yards

came to be located in the area to be

remediated by the CWP and 240 cubic

yards came to be located in the HLP.

EPA then calculated the appropriate

settlement amount by: (a) taking the

amount it cost to remediate

Respondent’s volumetric share of the

CWP; (b) calculating the cost EPA will

incur to remediate Respondent’s

volumetric share of the HLP; (c) adding

a percentage for Respondent’s share of

Sitewide costs; (d) estimating the

enforcement costs associated with

negotiating and finalizing this AOC; and

(e) applying a 100% ‘‘premium’’

payment to Respondent’s share of those

estimated costs not yet incurred by EPA.

In accordance with applicable EPA

guidance, this 100% ‘‘premium’’

payment on estimated costs to be

incurred provides consideration for

EPA’s granting the Respondent a

covenant not to sue without the normal

remedy cost overrun reopener.

20. Based on the factors identified in

Paragraph 19 above, EPA determined

that the appropriate amount to settle

Respondent’s potential CERCLA Section

106 and 107 and RCRA Section 7003

liabilities is $95,000. The settlement

amount required to be paid by the

Respondent pursuant to this Order

therefore represents only a minor

portion of the response costs to be

recovered for the cleanup of the Site.

V. Determinations

21. Based upon the Statement of Facts

set forth above and on the Information

currently known to the United States,

EPA has determined that:

(1) The Site is a ‘‘facility’’ as that term

is defined in Section 101(9) of CERCLA,

42 U.S.C. 9601(9).

(2) The Respondent is a ‘‘person’’ as

that term is defined in Section 101(21)

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

(3) The Respondent is a ‘‘potentially

responsible party’’ within the meaning

of Section 122(g)(1) of CERCLA, 42

U.S.C. 9622(g)(1).

(4) There has been an actual or

threatened ‘‘release’’ of a ‘‘hazardous

substance’’ from the Site as those terms

are defined in Sections 101 (22) and (14)

of CERCLA, 42 U.S.C. 9601 (22) and

(14).

(5) The amount of hazardous

substances contributed to the Site by the

Respondent and the toxic or other

hazardous effects of the hazardous

substances contributed to the Site by the

Respondent are minimal in comparison

to other hazardous substances at the Site

within the meaning of Section

122(g)(1)(A) of CERCLA, 42 U.S.C.

9622(g)(1)(A).

(6) As to the Respondent, this Consent

Order involves only a minor portion of

the response costs at the Site within the

meaning of Section 122(g)(1) of

CERCLA, 42 U.S.C. 9622(g)(1).

(7) The terms of this Consent Order

are consistent with EPA policy and

guidance for settlements with de

minimis waste contributors, including

but not limited to, ‘‘Standardizing the

De Minimis Premium,’’ (July 7, 1995),

‘‘Streamlined Approach for Settling

with De Minimis Waste Contributors

under CERCLA Section 122(g)(1)(A),’’

OSWER Directive No. 9834.7–1D (July

30, 1993), and ‘‘Methodology for Early

De Minimis Waste Contributor

Settlements under CERCLA Section

122(g)(1)(A),’’ OSWER Directive No.

9834.7–1C (June 2, 1992).

(8) Prompt settlement with the

Respondent is practicable and in the

public interest within the meaning of

Section 122(g)(1) of CERCLA, 42 U.S.C.

9622(g)(1).

(9) The settlement of this case without

litigation and without the admission or

adjudication of any issue of fact or law

is the most appropriate means of

resolving any liability that the

Respondent may have for response

actions and response costs with respect

to all releases or threatened releases at

or in connection with the Site.

VI. Order

22. Based upon the Information

currently known to the United States

and the Statement of Facts and

Determinations set forth above, and in

consideration of the promises and

covenants set forth herein, the following

is hereby Agreed to and Ordered:

VII. Parties Bound

23. This Consent Order shall apply to

and be binding upon EPA and upon

Respondent and its successors and

assigns. Any change in ownership or

corporate or other legal status of the

Respondent including, but not limited

to, any transfer of assets or real or

personal property, shall in no way alter

such Respondent’s responsibilities

under this Consent Order. Each

signatory to this Consent Order certifies

that he or she is authorized to enter into

the terms and conditions of this Consent

Order and to execute and bind legally

the party represented by him or her.

VIII. Payment

24. Within 10 days of the effective

date of this Order, Respondents shall

pay a total of $95,000 to the Hazardous

Substance Superfund as provided

below.

25. Payment shall be made by

cashier’s check made payable to ‘‘EPA

Hazardous Substance Superfund.’’ The

check shall reference the Site name, the

name and address of the Respondent,

EPA CERCLA Number 08–Y3 and DOJ

Case No. 90–11–3–1133A and shall be

sent to: Mellon Bank, EPA Region VIII,

Attn: Superfund Accounting, P.O. Box

360859M, Pittsburgh, PA 15251.

26. If the Respondent fails to make

full payment within the time required

by Paragraph 25, Respondent shall pay

Interest on the unpaid balance. In

addition, if Respondent fails to make

full payment as required by Paragraph

25, the United States may, in addition

to any other available remedies or

sanctions, bring an action against the

Respondent seeking injunctive relief to

compel payment and/or seeking civil

penalties under Section 122(l) of

CERCLA, 42 U.S.C. 9622(l), for failure to

make timely payment.
62602 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Notices

27. The Respondents’ payment

includes an amount representing the

Respondent’s fair share of: (a) past

response costs incurred at or in

connection with the Site; (b) projected

future response costs to be incurred at

or in connection with the Site; and (c)

a significant premium to cover the risks

associated with this settlement,

including but not limited to, the risk

that total response costs incurred or to

be incurred at or in connection with the

Site by the EPA Hazardous Substance

Superfund, or by any private party, will

exceed the estimated total response

costs upon which Respondent’s

payment is based.

28. Payments made under this Section

may be placed in a site-specific

‘‘special’’ or ‘‘reimbursable’’ account by

EPA. This site-specific reimbursable

account within the EPA Hazardous

Substance Superfund shall be known as

the Summitville Mine Superfund Site

Special Account and shall be retained

and used by EPA to conduct or finance

the response actions at or in connection

with the Site. Upon completion of the

final remedial action for the Site, any

balance remaining in the Summitville

Mine Superfund Site Special Account

shall be transferred by EPA to the

general EPA Hazardous Substance

Superfund.

IX. Certification of Respondents

29. By signing this Consent Order, the

Respondent certifies, that, to the best of

its knowledge and belief, it has:

(1) conducted a thorough,

comprehensive, good faith search for

documents, and has fully and accurately

disclosed to EPA, all non-privileged

documents currently in its possession,

or in the possession of its officers,

directors, employees, contractors or

agents, which relate in any way to its

liability under CERCLA and RCRA for

ownership, operation, exploration

activities or control of the Site;

(2) not altered, mutilated, discarded,

destroyed or otherwise disposed of any

records, documents, or other

information relating to its potential

CERCLA and RCRA liability regarding

the Site after notification of such

potential liability; and

(3) fully complied to EPA’s

satisfaction with any and all EPA

requests for information pursuant to

Sections 104(e) and 122(e) of CERCLA,

42 U.S.C. 9604(e) and 9622(e).

X. Covenants Not To Sue

30. a. Except as provided in Section

XI (Reservation of Rights) of this Order,

the United States covenants not to sue

or take any other civil or administrative

action against the Respondent for

reimbursement of response costs or for

injunctive relief pursuant to Section 106

or 107(a) of CERCLA, 42 U.S.C. 9606 or

9607(a) or Section 7003 of the Resource

Conservation and Recovery Act, as

amended, 42 U.S.C. 6973, relating to the

Site. With respect to present and future

liability, this covenant not to sue shall

take effect upon full payment of the

amount specified in Section VII

(Payment) of this Order.

b. The United States’ covenant not to

sue extends to Respondent, and to its

predecessors-in-interest, affiliates,

successors and assigns, including the

Anaconda Minerals Company and the

Atlantic Richfield Company, only to the

extent that the liability of such

predecessors-in-interest, affiliates,

successors and assigns is derivative of

Respondent’s liability for those acts of

Anaconda Minerals Company as set

forth in Paragraph 9–12, Section IV of

this Order. The United States’ covenant

not to sue does not extend to any other

person.

XI. Reservation of Rights

31. The covenants not to sue by the

United States set forth in Paragraph 30

of this Order do not pertain to any

matters other than those expressly

specified in Paragraph 30. The United

States reserves, and this Order is

without prejudice to, all rights against

the Respondent with respect to all other

matters, including but not limited to the

following:

(a) claims based on a failure to make

the payments required by Section VII

(Payment) of this Order;

(b) criminal liability;

(c) any liability against Respondent

that results from its future disposal

activities at the Site; or

(d) liability for damages for injury to,

destruction of, or loss of natural

resources, including any cost of

assessing the injury to, destruction of, or

loss of such natural resources.

32. Notwithstanding any other

provision in this Consent Order, the

United States reserves, and this Consent

Order is without prejudice to, the right

to institute judicial or administrative

proceedings against the Respondent

seeking to compel Respondent to

perform response actions at the Site

and/or to reimburse the United States

for additional costs of response if New

Information is discovered that the

Respondent contributed: (a) hazardous

substances in an amount greater than

1% of the total volume of waste rock,

tailings or mine waste containing

hazardous substances requiring

remediation at the Site; or (b) hazardous

substances that contributed to the total

copper loading to the waters at or

emanating from the Site; or (c)

hazardous substances at the Site which

are significantly more toxic or are of

significantly greater hazardous effect

that other hazardous substances at the

Site.

33. For purposes of Paragraph 32,

‘‘New Information’’ shall not include:

(1) any recalculation of the total volume

of waste rock, tailings or mine waste

containing hazardous substances

requiring remediation at the Site based

solely on Information currently known

to the United States; (2) any

recalculation of the Respondent’s

contribution of waste rock, tailings or

mine waste containing hazardous

substances requiring remediation at the

Site based solely on Information

currently known to the United States; or

(3) a calculation of Anaconda’s activities

giving rise to a contribution to the total

copper loading to the waters at or

emanating from the Site based solely on

Information currently known to the

United States.

34. In the event the United States

institutes judicial or administrative

proceedings against the Respondent

pursuant to Paragraph 32 above, the

Respondent shall:

(i) be credited, in any subsequent

settlement or administrative or judicial

proceeding relating to the Site, with the

$95,000 payment made pursuant to

Paragraph 24 of this Order;

(ii) retain any defense it may have to

liability and any claim it may have

under any applicable statute or the

common law with regard to any

additional amount demanded by the

United States in any subsequent

administrative or judicial proceeding

relating to the Site; and

(iii) continue to grant any waiver or

covenant previously granted to the

United States under Section XI of this

Order for the amount credited to the

Respondent, but such waiver or

covenant shall be null and void as to

any additional amount demanded by the

United States in any subsequent

administrative or judicial proceeding

relating to the Site.

XII. Covenant Not To Sue By

Respondent

35. The Respondent covenants not to

sue and agrees not to assert any claims

or causes of action against the United

States, or its contractors or employees

with respect to the Site or this Order,

including, but not limited to:

(1) any direct or indirect claim for

reimbursement from the Hazardous

Substance Superfund (established

pursuant to the Internal Revenue Code,

26 U.S.C. 9507) through Sections

106(b)(2), 111, 112 or 113 of CERCLA,
Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Notices 62603

42 U.S.C. 9606(b)(2), 9611, 9612 or

9613;

(2) any claim arising out of response

activities at the Site; and

(3) any claim against the United States

pursuant to Sections 107 or 113 of

CERCLA, 42 U.S.C. 9607 or 9613,

relating to the Site.

36. Nothing in this Order shall be

deemed to constitute preauthorization

of a claim within the meaning of Section

111 of CERCLA, 42 U.S.C. 9611, or 40

CFR 300.700(d).

37. The Respondent also waives any

challenge it may have to any response

action selected in any Action

Memorandum, Interim Record of

Decision or final Record of Decision for

the Site.

XIII. Effect of Settlement; Contribution

Protection

38. Nothing 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 nullify any rights that any person not

a signatory to this Order may have

under applicable law. The United States

and the Respondent each reserve any

and all rights (including, but not limited

to, 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 Site against

any person not a party hereto.

39. Respondent consents and agrees to

comply with and be bound by the terms

of this Order. The United States and the

Respondent agree that this Order,

Respondent’s consent to this Order and

actions in accordance with this Order

shall not in any way constitute or be

construed as an admission of any

liability by Respondent or of any legal

or factual matters set forth in this Order.

Further, neither this Order,

Respondent’s consent to this Order, nor

Respondent’s actions in accordance

with this Order shall be admissible in

evidence against Respondent without its

consent, except in a proceeding to

enforce this Order. Respondent does not

admit, and retains the right to controvert

in any subsequent proceedings other

than proceedings to implement or

enforce this Consent Order, the validity

of the Statement of Facts and

Determinations contained in this

Consent Order.

40. With regard to claims for

contribution against the Respondent, the

Parties hereto agree that, as of the

effective date of this Order, the

Respondent and its predecessors-ininterest, affiliates, successors and

assigns, including the Anaconda

Minerals Company and the Atlantic

Richfield Company, is entitled to such

protection from contribution actions or

claims as is provided by Sections

113(f)(2) and 122(g)(5) of CERCLA, 42

U.S.C. 9613(f)(2) and 9622(g)(5) for

‘‘matters addressed’’ in this Consent

Order. ‘‘Matters addressed’’ by this

Order shall include all claims the

United States could bring or any other

civil or administrative action the United

States could take against the

Respondent or its predecessors-ininterest, affiliates, successors and

assigns, including the Anaconda

Minerals Company and the Atlantic

Richfield Company, for injunctive relief

or for reimbursement of response costs

pursuant to Section 106 or 107(a) of

CERCLA, 42 U.S.C. 9606 or 9607(a) or

Section 7003 of the Resource

Conservation and Recovery Act, as

amended, 42 U.S.C. 6973, related to the

Site.

XIV. Public Comment

41. This Order shall be subject to a

thirty-day public comment period in

accordance with Section 122(i) of

CERCLA, 42 U.S.C. 9622(i). In

accordance with Section 122(i)(3), 42

U.S.C. 9622(i)(3), EPA may withdraw or

modify its consent to this Order if

comments received disclose any facts or

considerations which indicate that this

Order is inappropriate, improper, or

inadequate.

XV. Attorney General Approval

42. The Attorney General or her

designee has approved the settlement

embodied in this Order in accordance

with Section 122(g)(4) of CERCLA, 42

U.S.C. 9622(g)(4).

XVI. Effective Date

43. The effective date of this Order

shall be the date upon which the

Assistant Regional Administrator, EPA

Region VIII notifies the Respondent that

the public comment period undertaken

pursuant to Paragraph 41 of this Order

has closed and that comments received,

if any, do not require EPA’s withdrawal

from or the modification of any terms of

this Order.

It Is So Agreed:

ARCO Environmental Remediation, L.L.C.

Dated: July 2, 1997.

C. Richard Knowles,

President.

It Is So Ordered and Agreed:

Environmental Protection Agency, Region

VIII.

Dated: September 2, 1997.

Carol Rushin,

Assistant Regional Administrator, Office of

Enforcement, Compliance and Environmental

Justice.

In The Matter Of: Summitville Mine

Superfund Site, Site No. 08–Y3; ASARCO

Incorporated; Respondent.

Proceeding Under Section 122(g)(4) Of The

Comprehensive Environmental Response,

Compensation, And Liability Act, As

Amended (42 U.S.C. 9622(g)(4)). EPA Docket

Number CERCLA–VIII–98–04.

CERCLA Section 122(g)(4) De Minimis

Waste Contributor Administrative

Order

I. Jurisdiction

1. This Administrative Order on

Consent (Consent Order or Order) is

issued pursuant to the authority vested

in the President of the United States by

Section 122(g)(4) of the Comprehensive

Environmental Response,

Compensation, and Liability Act of

1980, as amended (CERCLA), 42 U.S.C.

9622(g)(4), to reach settlements in

actions under Section 106 or 107 of

CERCLA, 42 U.S.C. 9606 or 9607. The

authority vested in the President has

been delegated to the Administrator of

the United States Environmental

Protection Agency (EPA) by Executive

Order 12580, 52 FR 2923 (Jan. 29, 1987),

and further delegated to the Regional

Administrators of the EPA by EPA

Delegation No. 14–14–E. This authority

has been redelegated to the Assistant

Regional Administrator for Ecosystem

Protection and Remediation.

2. This Order is issued to ASARCO

Incorporated (Respondent). The

Respondent agrees to undertake all

actions required by this Consent Order.

The Respondent further consents to and

will not contest EPA’s jurisdiction to

issue this Consent Order or to

implement or enforce its terms.

II. Statement of Purpose

3. By entering into this Consent

Order, the mutual objectives of the

Parties are:

a. to reach a final settlement between

the Parties with respect to the Site

pursuant to Section 122(g) of CERCLA,

42 U.S.C. 9622(g), that allows

Respondent to make a cash payment,

including a premium, to resolve its

alleged civil liability under Sections 106

and 107 of CERCLA, 42 U.S.C. 9606 and

9607 and Section 7003 of the Resource

Conservation and Recovery Act, as

amended, 42 U.S.C. 6973, for injunctive

relief with regard to the Site, and for

response costs incurred and to be

incurred at or in connection with the

Site, thereby reducing litigation relating

to the Site;
62604 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Notices

b. to simplify any remaining

administrative and judicial enforcement

activities concerning the Site by

eliminating one of the potentially

responsible parties from further

involvement at the Site; and

c. to obtain settlement with

Respondent for its fair share, as

determined by EPA, of response costs

incurred and to be incurred at or in

connection with the Site by the EPA

Hazardous Substance Superfund, and to

provide full and complete contribution

protection for Respondent with regard

to the Site pursuant to Sections 122(f)(2)

and 122(g)(5) of CERCLA, 42 U.S.C.

9622(f)(2) and 9622(g)(5).

III. Definitions

Unless otherwise expressly provided

herein, terms used in this Consent Order

that are defined in CERCLA or in

regulations promulgated under CERCLA

shall have the meaning assigned to them

in the statute or regulations. Whenever

the terms listed below are used in this

Consent Order, the following definitions

shall apply:

CERCLA shall mean the

Comprehensive Environmental

Response, Compensation, and Liability

Act of 1980, as amended, 42 U.S.C.

9601, et seq.

Consent Order or Order shall mean

this Administrative Order on Consent

and all appendices attached hereto. In

the event of conflict between this Order

and any appendix, the Order shall

control.

Day shall mean a calendar day. In

computing any period of time under this

Consent Decree, where the last day

would fall on a Saturday, Sunday, or

federal holiday, the period shall run

until the close of business of the next

working day.

EPA shall mean the United States

Environmental Protection Agency and

any successor departments or agencies.

EPA Hazardous Substance Superfund

shall mean the Hazardous Substance

Superfund established by the Internal

Revenue Code, 26 U.S.C. 9507.

Information currently known to the

United States shall mean that

information and those documents

contained in the Administrative Record

and Site File for the Site as of the

effective date of this Order.

Interest shall mean interest at the rate

specified for interest on investments of

the EPA Hazardous Substance

Superfund established by 26 U.S.C.

9507, compounded on October 1 of each

year, in accordance with 42 U.S.C.

9607(a).

New Information shall mean

information not contained in the

Administrative Record or Site File for

the Site as of the effective date of this

Order.

Paragraph shall mean a portion of this

Consent Order identified by an Arabic

numeral.

Parties shall mean EPA and the

Respondent.

Respondent shall mean ASARCO

Incorporated.

Response Costs shall mean all costs of

‘‘response’’ as that term is defined by

Section 101(25) of CERCLA.

Section shall mean a portion of this

Consent Order identified by a roman

numeral.

Site shall mean the Summitville Mine

Superfund Site Remedial Investigation/

Feasibility Study Area within Rio

Grande County, Colorado.

Approximately 550 acres of the Site,

known as the Summitville Minesite,

have been disturbed by mining activities

and is currently undergoing remedial

action. As depicted on the map attached

as Appendix A, the Site consists of

portions of the Alamosa River

Watershed EPA believes may have been

impacted by releases of hazardous

substances from the Summitville

Minesite. More specifically, the Site

includes the following areas: Area 1-

Summitville Mine Site—The area within

the mine permit boundaries; Area 2-

Wightman Fork—The Wightman Fork

and associated wetlands between the

down stream mine permit boundary to

the confluence with the Alamosa River;

Area 3-Alamosa River—The Alamosa

River and associated wetlands from the

confluence with the Wightman Fork

downstream to the inlet of the Terrace

Reservoir; Area 4-Terrace Reservoir—

The area which contains the Terrace

Reservoir; and Area 5-Below Terrace

Reservoir—The area below the Terrace

Reservoir which has been impacted by

contamination transported by the

Alamosa River and irrigation canals.

United States shall mean the United

States of America, including its

departments, agencies and

instrumentalities.

IV. Statement of Facts

4. The United States Environmental

Protection Agency (EPA) initiated

removal response actions at the Site on

December 18, 1992 to address releases

or threatened releases of hazardous

substances into the Alamosa River and

surrounding environment pursuant to

the President’s authority under Sections

104 and 106 of the Comprehensive

Environmental Response, Compensation

and Liability Act of 1980, as amended

by the Superfund Amendments and

Reauthorization Act of 1986, Pub. L. 99–

499, 42 U.S.C. 9604 and 9606(a)

(CERCLA).

5. On May 31, 1994, EPA listed the

Site on the National Priorities List as a

result of releases or threatened releases

of hazardous substances at or from the

Site.

6. On December 15, 1994, EPA issued

4 Interim Records of Decision selecting

the interim remedial actions to be

implemented for the following activities

and/or areas at the Summitville Mine

Site: Water Treatment (WT IROD),

Reclamation, the Heap Leach Pad (HLP

IROD) and the Cropsy Waste Pile,

Beaver Mud Dump/Summitville Dam

Impoundment, and Mine Pits (CWP

IROD).

7. As of March 31, 1997, the United

States incurred approximately $109

million in response costs responding to

the release or threatened release of

hazardous substances at or in

connection with the Site. The United

States continues to incur response costs

in responding to the release or threat of

release of hazardous substances at or in

connection with the Site.

8. EPA alleges that the Respondent is

liable for reimbursement of the United

States’ response costs pursuant to

Section 107 of CERCLA, 42 U.S.C. 9607.

9. Respondent conducted sporadic

exploration and related activities from

1974 through 1980 under a lease that

expired in 1981. ASARCO’s exploration

program consisted of a systematic

program of percussion and diamond

core drilling, aimed at determining the

ore reserves and the viability of

conducting mining operations at the

Site. First, ASARCO drilled 2 deep

holes, to depths of 3,000 and 4,700 feet,

respectively, to test its theory that a

large porphyry-type copper deposit was

present at the Site. In 1975, ASARCO

drilled 396 shallow holes and 14 deep

holes as part of this drilling program.

ASARCO also conducted backhoe

trenching as part of its exploration

program to generally define the

boundaries of outcrops and

underground mineral deposits. It is

estimated that approximately 31 tons of

material was generated from ASARCO’s

drilling program, some or all of which

is believed to have been removed from

the Site for sampling and analysis.

10. ASARCO dug 49 trenches

amounting to 15,213 linear feet, with an

average depth of 6 feet. The procedure

for sampling these trenches was to

collect approximately 1⁄2 pound per

linear foot of trench. This sampling

effort would have amounted in 2.9 tons

of waste material disturbed by ASARCO

remaining on-site. The trenches were

backfilled and revegetated in

accordance with contemporary mining

practices and Colorado Mined Land

Reclamation Board requirements.
Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Notices 62605

11. ASARCO also evaluated several

adits, including the Copper Hill, Del

Norte, Upper Highland Mary, Esmond,

Science, Narrow Gauge, Aztec, Old

Pickens, Chandler, Iowa and French

adits. A total of 3,915 feet was cleared

of ice and mapped and 2,110 feet of

these adits was sampled and assayed by

ASARCO. The adit rehabilitation

program was abandoned, without

ASARCO either retimbering or

otherwise conducting any rehabilitation

activities.

12. As of August 1976, ASARCO also

abandoned its plan to dewater and

rehabilitate the Missionary Shaft or its

underworkings. ASARCO did not

conduct any rehabilitation or mining

activities at the Missionary Shaft or its

associated underworkings.

13. Based on the data available to the

Parties, EPA and Respondent estimate

that the amount of material generated as

a result of ASARCO’s limited

exploration activities amounts to

approximately 31 tons or 25 yds.3 EPA

and ASARCO also agree that its limited

diamond drilling program may have

disturbed approximately 0.14 acre of the

surface of the Site. EPA and ASARCO

also agree that the actual amount of time

ASARCO conducted its exploration

activities lasted a total of approximately

16 months.

14. On July 1, 1987, Hydrometrics,

Inc. became a wholly-owned subsidiary

of ASARCO. As documented in

ASARCO’s CERCLA Section 104(e)

information request response,

Hydrometrics, Inc. performed certain

testing, sampling and data compilation

functions as a contractor or consultant

to Galactic Resources, Ltd. or its whollyowned subsidiaries, including Galactic

Resources, Inc., Galactic Services, Inc.

or Summitville Consolidated Mining

Company, Inc. There is no indication,

however, that any of Hydrometrics’

activities resulted in the generation or

disposal of any waste materials on-site.

15. The total volume of waste rock,

tailings and other mine waste (including

the Heap Leach Pad) requiring

remediation at the Site is approximately

11 million yds.3 According to the WT

IROD, approximately 321,000 pounds of

copper per year, if left untreated, would

contaminate the receiving waters

surrounding the Site, including the

Wightman Fork and Alamosa River.

EPA has determined parties are eligible

for a de minimis settlement if their

contribution of mine waste and metals

loading is equal to or less than 3% of

the total volume of hazardous

substances contributed to each of these

media. The Respondent’s contribution

of hazardous substances to these media

are below the 3% de minimis cut-off

established by EPA for the Site.

16. Based on Information currently

known to the United States, EPA has

calculated the Respondent’s de minimis

eligibility as follows: EPA has estimated

that the amount of hazardous substances

allegedly contributed to the Site by

Respondents constitutes substantially

less than 1% of the total volume of

waste rock, tailings or mine waste

requiring remediation at the Site. EPA

has also determined that the

Respondent’s activities have not

contributed any copper loading to the

waters at or emanating from the Site.

17. The material allegedly generated

and disposed of by the Respondent

therefore involves only a minor portion

of the total hazardous substances

generated or disposed of at the Site. EPA

has also concluded that the hazardous

substances allegedly contributed to the

Site by Respondent are not significantly

more toxic or of significantly greater

hazardous effect than other hazardous

substances at the Site.

18. EPA estimates that the total

response costs incurred and to be

incurred at or in connection with the

Site by the EPA Hazardous Substance

Superfund will be $152 million. The

payment required to be made by the

Respondent pursuant to this Order

represents only a minor portion of the

response costs to be recovered for the

cleanup of the Site.

V. Determinations

19. Based upon the Statement of Facts

set forth above and on the Information

currently known to the United States,

EPA has determined that:

(1) The Site is a ‘‘facility’’ as that term

is defined in Section 101(9) of CERCLA,

42 U.S.C. 9601(9).

(2) The Respondent is a ‘‘person’’ as

that term is defined in Section 101(21)

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

(3) The Respondent is a ‘‘potentially

responsible party’’ within the meaning

of Section 122(g)(1) of CERCLA, 42

U.S.C. 9622(g)(1).

(4) There has been an actual or

threatened ‘‘release’’ of a ‘‘hazardous

substance’’ from the Site as those terms

are defined in Sections 101 (22) and (14)

of CERCLA, 42 U.S.C. 9601 (22) and

(14).

(5) The amount of hazardous

substances contributed to the Site by the

Respondent and the toxic or other

hazardous effects of the hazardous

substances contributed to the Site by the

Respondent are minimal in comparison

to other hazardous substances at the Site

within the meaning of Section

122(g)(1)(A) of CERCLA, 42 U.S.C.

9622(g)(1)(A).

(6) As to the Respondent, this Consent

Order involves only a minor portion of

the response costs at the Site within the

meaning of Section 122(g)(1) of

CERCLA, 42 U.S.C. 9622(g)(1).

(7) The terms of this Consent Order

are consistent with EPA policy and

guidance for settlements with de

minimis waste contributors, including

but not limited to, ‘‘Standardizing the

De Minimis Premium,’’ (July 7, 1995),

‘‘Streamlined Approach for Settling

with De Minimis Waste Contributors

under CERCLA Section 122(g)(1)(A),’’

OSWER Directive No. 9834.7–1D (July

30, 1993), and ‘‘Methodology for Early

De Minimis Waste Contributor

Settlements under CERCLA Section

122(g)(1)(A),’’ OSWER Directive No.

9834.7–1C (June 2, 1992).

(8) Prompt settlement with the

Respondent is practicable and in the

public interest within the meaning of

Section 122(g)(1) of CERCLA, 42 U.S.C.

9622(g)(1).

(9) The settlement of this case without

litigation and without the admission or

adjudication of any issue of fact or law

is the most appropriate means of

resolving any liability that the

Respondent may have for response

actions and response costs with respect

to all releases or threatened releases at

or in connection with the Site.

VI. Order

20. Based upon the Information

currently known to the United States

and the Statement of Facts and

Determinations set forth above, and in

consideration of the promises and

covenants set forth herein, the following

is hereby Agreed to and ordered:

VII. Parties Bound

21. This Consent Order shall apply to

and be binding upon EPA and upon

Respondent and its successors and

assigns. Any change in ownership or

corporate or other legal status of the

Respondent including, but not limited

to, any transfer of assets or real or

personal property, shall in no way alter

such Respondent’s responsibilities

under this Consent Order. Each

signatory to this Consent Order certifies

that he or she is authorized to enter into

the terms and conditions of this Consent

Order and to execute and bind legally

the party represented by him or her.

VIII. Payment

22. Within 10 days of the effective

date of this Order, Respondents shall

pay a total of $86,052.73 to the

Hazardous Substance Superfund as

provided below.

23. Payment shall be made by

cashier’s check made payable to ‘‘EPA
62606 Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Notices

Hazardous Substance Superfund.’’ The

check shall reference the Site name, the

name and address of the Respondent,

EPA CERCLA Number 08–Y3 and DOJ

Case No. 90–11–3–1133A and shall be

sent to: Mellon Bank, PA Region VIII,

Attn: Superfund Accounting, P.O. Box

360859M, Pittsburgh, PA 15251.

24. If the Respondent fails to make

full payment within the time required

by Paragraph 22, Respondent shall pay

Interest on the unpaid balance. In

addition, if Respondent fails to make

full payment as required by Paragraph

22, the United States may, in addition

to any other available remedies or

sanctions, bring an action against the

Respondent seeking injunctive relief to

compel payment and/or seeking civil

penalties under Section 122(l) of

CERCLA, 42 U.S.C. 9622(l), for failure to

make timely payment.

25. The Respondent’s payment

includes an amount representing the

Respondent’s fair share of: (a) past

response costs incurred at or in

connection with the Site; (b) projected

future response costs to be incurred at

or in connection with the Site; and (c)

a premium to cover the risks associated

with this settlement, including but not

limited to, the risk that total response

costs incurred or to be incurred at or in

connection with the Site by the EPA

Hazardous Substance Superfund, or by

any private party, will exceed the

estimated total response costs upon

which Respondent’s payment is based.

26. Payments made under this Section

may be placed in a site-specific

‘‘special’’ or ‘‘reimbursable’’ account by

EPA. This site-specific reimbursable

account within the EPA Hazardous

Substance Superfund shall be known as

the Summitville Mine Superfund Site

Special Account and shall be retained

and used by EPA to conduct or finance

the response actions at or in connection

with the Site. Upon completion of the

final remedial action for the Site, any

balance remaining in the Summitville

Mine Superfund Site Special Account

shall be transferred by EPA to the

general EPA Hazardous Substance

Superfund.

IX. Certification of Respondents

27. By signing this Consent Order, the

Respondent certifies, that, to the best of

its knowledge and belief, it has:

(1) conducted a thorough,

comprehensive, good faith search for

documents, and has fully and accurately

disclosed to EPA, all non-privileged

documents currently in its possession,

or in the possession of its officers,

directors, employees, contractors or

agents, which relates in any way to its

liability under CERCLA and RCRA for

ownership, operation, exploration

activities or control of the Site;

(2) not altered, mutilated, discarded,

destroyed or otherwise disposed of any

records, documents, or other

information relating to its potential

CERCLA and RCRA liability regarding

the Site after notification of such

potential liability; and

(3) fully complied to EPA’s

satisfaction with any and all EPA

requests for information pursuant to

Sections 104(e) and 122(e) of CERCLA,

42 U.S.C. 9604(e) and 9622(e).

X. Covenants Not To Sue

28. a. Except as provided in Section

XI (Reservation of Rights) of this Order,

the United States covenants not to sue

or take any other civil or administrative

action against the Respondent for

reimbursement of response costs or for

injunctive relief pursuant to Section 106

or 107(a) of CERCLA, 42 U.S.C. 9606 or

9607(a) or Section 7003 of the Resource

Conservation and Recovery Act, as

amended, 42 U.S.C. 6973, relating to the

Site. With respect to present and future

liability, this covenant not to sue shall

take effect upon full payment of the

amount specified in Section VII

(Payment) of this Order.

b. The United States’ covenant not to

sue extends to Respondent, and to its

predecessors-in-interest, affiliates,

successors and assigns, including

Hydrometrics, Inc., only to the extent

that the liability of such predecessorsin-interest, affiliates, successors and

assigns is derivative of Respondent’s

liability for those acts set forth in

Paragraph 9–14, Section IV of this

Order. The United States’ covenant not

to sue does not extend to any other

person.

XI. Reservation of Rights

29. The covenants not to sue by the

United States set forth in Paragraph 28

of this Order do not pertain to any

matters other than those expressly

specified in Paragraph 28. The United

States reserves, and this Order is

without prejudice to, all rights against

the Respondent with respect to all other

matters, including but not limited to the

following:

(a) claims based on a failure to make

the payments required by Section VII

(Payment) of this Order;

(b) criminal liability;

(c) any liability against Respondent

that results from its future disposal

activities at the Site; or

(d) liability for damages for injury to,

destruction of, or loss of natural

resources, including any cost of

assessing the injury to, destruction of, or

loss of such natural resources.

30. Notwithstanding any other

provision in this Consent Order, the

United States reserves, and this Consent

Order is without prejudice to, the right

to institute judicial or administrative

proceedings against the Respondent

seeking to compel Respondent to

perform response actions at the Site

and/or to reimburse the United States

for additional costs of response if New

Information is discovered that the

Respondent contributed: (a) hazardous

substances in an amount greater than

1% of the total volume of waste rock,

tailings or mine waste containing

hazardous substances requiring

remediation at the Site; or (b) hazardous

substances that contributed to the total

copper loading to the waters at or

emanating from the Site; or (c)

hazardous substances at the Site which

are significantly more toxic or are of

significantly greater hazardous effect

that other hazardous substances at the

Site.

31. For purposes of Paragraph 30,

‘‘New Information’’ shall not include

any recalculation of the total volume of

waste rock, tailings or mine waste

containing hazardous substances

requiring remediation at the Site based

solely on Information currently known

to the United States.

32. In the event the United States

institutes judicial or administrative

proceedings against the Respondent

pursuant to Paragraph 30 above, the

Respondent shall:

(i) be credited, in any subsequent

settlement or administrative or judicial

proceeding relating to the Site, with the

$86,052.73 payment made pursuant to

Paragraph 22 of this Order;

(ii) retain any defense it may have to

liability and any claim it may have

under any applicable statute or the

common law with regard to any

additional amount demanded by the

United States in any subsequent

administrative or judicial proceeding

relating to the Site; and

(iii) continue to grant any waiver or

covenant previously granted to the

United States under Section XI of this

Order for the amount credited to the

Respondent, but such waiver or

covenant shall be null and void as to

any additional amount demanded by the

United States in any subsequent

administrative or judicial proceeding

relating to the Site.

XII. Covenant Not To Sue By

Respondent

33. The Respondent covenants not to

sue and agrees not to assert any claims

or causes of action against the United

States, or its contractors or employees
Federal Register / Vol. 62, No. 226 / Monday, November 24, 1997 / Notices 62607

with respect to the Site or this Order,

including, but not limited to:

(1) any direct or indirect claim for

reimbursement from the Hazardous

Substance Superfund (established

pursuant to the Internal Revenue Code,

26 U.S.C. 9507) through Sections

106(b)(2), 111, 112 or 113 of CERCLA,

42 U.S.C. 9606(b)(2), 9611, 9612 or

9613;

(2) any claim arising out of response

activities at the Site; and

(3) any claim against the United States

pursuant to Sections 107 or 113 of

CERCLA, 42 U.S.C. 9607 or 9613,

relating to the Site.

34. Nothing in this Order shall be

deemed to constitute preauthorization

of a claim within the meaning of Section

111 of CERCLA, 42 U.S.C. 9611, or 40

CFR § 300.700(d).

35. The Respondent also waives any

challenge it may have to any response

action selected in any Action

Memorandum, Interim Record of

Decision or final Record of Decision for

the Site.

XIII. Effect of Settlement; Contribution

Protection

36. Nothing 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 nullify any rights that any person not

a signatory to this Order may have

under applicable law. The United States

and the Respondents each reserve any

and all rights (including, but not limited

to, 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 Site against

any person not a party hereto.

37. Respondent consents and agrees to

comply with and be bound by the terms

of this Order. The United States and the

Respondent agree that this Order,

Respondent’s consent to this Order and

actions in accordance with this Order

shall not in any way constitute or be

construed as an admission of any

liability by Respondents or of any legal

or factual matters set forth in this Order.

Further, neither this Order,

Respondent’s consent to this Order, nor

Respondent’s actions in accordance

with this Order shall be admissible in

evidence against Respondent without its

consent, except in a proceeding to

enforce this Order. Respondent does not

admit, and retains the right to controvert

in any subsequent proceedings other

than proceedings to implement or

enforce this Consent Order, the validity

of the Statement of Facts and

Determinations contained in this

Consent Order.

38. With regard to claims for

contribution against the Respondent, the

Parties hereto agree that, as of the

effective date this Order, the

Respondent and its predecessors-ininterest, affiliates, successors and

assigns, including Hydrometrics, Inc., is

entitled to such protection from

contribution actions or claims as is

provided by Sections 113(f)(2) and

122(g)(5) of CERCLA, 42 U.S.C.

9613(f)(2) and 9622(g)(5) for ‘‘matters

addressed’’ in this Consent Order.

‘‘Matters addressed’’ by this Order shall

include all claims the United States

could bring or any other civil or

administrative action the United States

could take against the Respondent or its

predecessors-in-interest, affiliates,

successors and assigns, including

Hydrometrics, Inc., for injunctive relief

or for reimbursement of response costs

pursuant to Section 106 or 107(a) of

CERCLA, 42 U.S.C. 9606 or 9607(a) or

Section 7003 of the Resource

Conservation and Recovery Act, as

amended, 42 U.S.C. 6973, related to the

Site.

XIV. Public Comment

39. This Order shall be subject to a

thirty-day public comment period in

accordance with Section 122(i) of

CERCLA, 42 U.S.C. 9622(i). In

accordance with Section 122(i)(3), 42

U.S.C. 9622(i)(3), EPA may withdraw or

modify its consent to this Order if

comments received disclose any facts or

considerations which indicate that this

Order is inappropriate, improper, or

inadequate.

XV. Attorney General Approval

40. The Attorney General or her

designee has approved the settlement

embodied in this Order in accordance

with Section 122(g)(4) of CERCLA, 42

U.S.C. 9622(g)(4).

XVI. Effective Date

41. The effective date of this Order

shall be the date upon which the

Assistant Regional Administrator, EPA

Region VIII notifies the Respondent that

the public comment period undertaken

pursuant to Paragraph 39 of this Order

has closed and that comments received,

if any, do not require EPA’s withdrawal

from or the modification of any terms of

this Order.

It is so agreed:

ASARCO Incorporated

Dated: February 2, 1997.

Michael O. Varner,

Vice President, Environmental Operations.

It is so ordered and agreed:

Environmental Protection Agency, Region

VIII.

Dated: September 2, 1997.

Martin Hestmark for Carol Rushin,

Assistant Regional Administrator, Office of

Enforcement, Compliance and Environmental

Justice.

[FR Doc. 97–30822 Filed 11–21–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

[FRL–5926–9]

Clean Water Act Class II: Proposed

Administrative Penalty Assessment

and Opportunity To Comment

Regarding Glacier Petroleum, Inc.,

Emporia, KS

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice of proposed

administrative penalty assessment and

opportunity to comment regarding

Glacier Petroleum, Inc., Emporia,

Kansas.

SUMMARY: EPA is providing notice of

opportunity to comment on the

proposed assessment.

Under 33 U.S.C. 1321(b)(6), EPA is

authorized to issue orders assessing

civil penalties for various violations of

the Act. EPA may issue such orders after

filing a Complaint commencing either a

Class I or Class II penalty proceeding.

EPA provides public notice of the

proposed assessment pursuant to 33

U.S.C. 1321(b)(6)(C).

Class II proceedings are conducted

under EPA’s Consolidated Rules of

Practice Governing the Administrative

Assessment of Civil Penalties and the

Revocation or Suspension of Permits, 40

CFR part 22. The procedures by which

the public may submit written comment

on a proposed Class II order or

participate in a Class II proceeding, and

the procedures by which a respondent

may request a hearing, are set forth in

the Consolidated Rules. The deadline

for submitting public comment on a

proposed Class II order is thirty (30)

days after issuance of public notice.

On September 26, 1997, EPA

commenced the following Class II

proceeding for the assessment of

penalties by filing with the Regional

Hearing Clerk, U.S. Environmental

Protection Agency, Region VII, 726

Minnesota Avenue, Kansas City, Kansas

66101, (913) 551–7630, the following

Complaint:

In the Matter of, Glacier Petroleum, Inc.

Emporia, Kansas; CWA Docket No. VII–97–

W–0053.