ADMINISTRATIV E RECORD

IN TH E UNITED STATES DISTRICT COURT F OR THE DISTRICT OF COLORADO

Civil Action No. 83-C-2388

STATE OF COLORADO

Plaintiff ,

'VS . ASARCO, INC . e t al.,

Defendant s an d Third-Party Plaintiffs .

vs.

LEADVILL E CORPORATION, et al. ,

Third-Part y Defendant s

D EC

348260

3 /7

b-ll

T

Civil Action No. 86-C-1675

UNITED STATES OF AMERICA , Plaintiff ,

vs.

APACHE ENERGY AND MINERALS COMPANY, et al .

Defendant s .

CONSENT DECREE WITH DENVER AND RI O GRAND E WESTERN RAILROAD
TABLE OF CONTENTS

I. BACKGROUND .................... 1

I I . JURISDICTIO N .................. 

III . PARTIE S BOUND ................... 5

I V . DEFINITIONS ................... . 

V. GENERAL PROVISION S ................ 11

VI. PERFORMANCE OF THE WORK BY D&RG .......... 15

VII . ADDITIONAL RESPONSE ACTIONS ............ 

VIII. EPA PERIODIC REVIEW ................ 24

I X. QUALIT Y ASSURANCE . SAMPLING, an d DATA ANALYSI

X. ACCES S ..................... . 27

X I. REPORTING REQUIREMENTS .............. 29

XII . SUBMISSIONS REQUIRING AGENCY APPROVAL ....... 31

XIII. PROJECT COORDINATORS ............... 34

XIV . ASSURANC E OF ABILITY TO COMPLETE WORK ....... 35

X V. CERTIFICATION OF COMPLETION ............ 36

XVI . EMERGENCY RESPONS E ................ 40

XVII. REIMBURSEMENT OF RESPONS E COSTS .......... 41

XVIII . INDEMNIFICATION AND INSURANC E .....

XIX . FORCE MAJEURE ................... 47

X X. DISPUT E RESOLUTION ................ 49

XXI . STIPULATE D PENALTIE S ............

XXII. COVENANTS NOT TO SUE BY PLAINTIFF ......... 58

XXIII. COVENANTS BY D&RG ................. 63

XXIV . EFFEC T OF SETTLEMENT: CONTRIBUTION PROTECTION .. . 6

XXV . ACCES S TO INFORMATION ............... 65
ii

XXVI . RETENTION OF RECORDS ............... 67

XXVII . NOTICE S AND SUBMISSIONS ............

XXVIII. EFFECTIV E DATE .................. 70

XXIX . RETENTION OF JURISDICTION ............. 70

XXX . APPENDICE S .................... 70

XXXI . COMMUNIT Y RELATION S ................ 71

XXXII . MODIFICATION ..............

XXXIII. LODGIN G AND OPPORTUNIT Y FOR PUBLI C COMMENT .... 72

XXXIV . SIGNATORIES/SERVIC E ............
I . BACKGROUND

A. On August 6, 1986, the United States of America

("United States" ) , on behal f of the Administrator of the United

States Environmental Protection Agency ("EPA") , filed a complaint

against, among others, defendan t Denver and Rio Grande Western

Railroad Company ("D&RG" ) in this matter pursuant to Sections 106

and 107 of the Comprehensive Environmental Response,

Compensation, and Liabilit y Act ("CERCLA") , 42 U.S.C . §§ 9606 and

9607, seeking injunctive relief for performance of response

actions consistent with the National Contingency Plan , 40 C.F.R .

Part 300 (as amended) ("NCP") , and for reimbursement of costs

incurred and to be incurred by the United States in response to

the release or threat of release of hazardous substances at the

California Gulch Superfun d Sit e located in and around Leadville,

Colorado. On February 3, 1987, the federal action was

consolidated with the December 9, 1983 action filed by the State

of Colorado.

B. Certain defendants , including D&RG , ASARCO , Inc. , ResASARCO Join t Venture ("Res-ASARCO") , Resurrection Minin g Company

("Resurrection"), Newmont Minin g Company ("Newmont") , and

Leadville Corporation ("LC") , filed cross-claims against each

other, and certain defendant s filed counterclaims against the

United States and the State of Colorado. In addition , D&RG

submitted a motion for leave to fil e a third party complaint

against the Department of Transportation , State of Colorado,

which claim has been settled.
2 ;

C. Pursuant to Section 105 of CERCLA, 42 U.S.C . § 9605,

E PA placed the California Gulch Superfun d Sit e on the National

Priorities List set forth at 40 C.F. R part 300, Appendix B, by

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

Reg. 40,658, 40,670) .

D. In response to a release or a substantial threat of a

release of a hazardous substance(s) at or from the California

Gulch Superfun d Site , EPA commenced or administratively ordered

various parties to commence specific remedial investigations and

feasibilit y studies consistent with the National Contingency

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

E. On December 3, 1991, EPA and D&RG entered into an

administrative order on consent ("AOC" ) for the performance of a

Remedial Investigation/Feasibilit y Stud y ("RI/FS") on lead slag

piles and performance of specified studies on one zinc pile at

t he Site . Thi s AOC is identified as EPA Docket No. CERCLA-VTII -

92-06. D&RG submitted the "Final RI Report for Lead Sla g Pile

Remedial Investigation" to EPA on December 4, 1992 and submitted

a "Final Zinc Slag Pile Remedial Investigation" to EPA on

December 11, 1992. To the extent that the AOC is inconsistent

with the terms of this Decree, this Decree will control.

F. In May 1993, EPA issued a Screening Feasibilit y Study

("SFS") for Remedial Alternatives at the California Gulch NPL

Site. A draf t of the SFS was prepared at EPA's request by

ASARCO, Inc. , Denver & Rio Grande Western Railroad, and

Resurrection Mining Company. The SFS initiated the overall
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CERCLA Feasibilit y Study process for the California Gulch

Superfun d Sit e by developin g and screening remedial alternatives

applicable to sources of contamination within the area designated

by EPA as the Remedial Investigation/Feasibilit y Stud y Area.

Before finalizin g the SFS, EPA provided notice and copies of the

draf t SFS to the Leadvilie community, and accepted comments on

t he draf t report.

G. Thi s Consent Decree provides a process under which

final response actions will be completed at a portion of the

California Gulch Superfun d Site , defined below as the "Work

Area." Thi s Consent Decree resolves the liabilit y of D&RG

within the Work Area, and for the remainder of the "Site",

except: (1) any contamination to groundwater both underlaying and

resulting from the three slag piles owned by D&RG , the easement

owned by D&RG , and the railyard owned by D&RG; (2) claims by the

United States for natural resource damages, including any costs

of assessment of such damages. Claims regarding these matters

are expressly reserved by the United States .

H. By entering into this Consent Decree D&RG does not

admit any allegatio n or liabilit y to the Plaintif f arising out of

the transactions or occurrences alleged in the complaint.

I. Based on the information presently available to EPA,

E PA believes that the Work will be properl y and promptly

conducted by D&RG if conducted in accordance with the

requirements of this Consent Decree and its appendices.
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J . Solel y for the purposes of Section 113 (j) of CERCLA,

42 U.S.C . § 9613(j) , the Work to be performed by D&RG pursuant to

this Consent Decree shall constitute a response action taken or

ordered by the President.

K. In accordance with the NCP an d Section 121(f)(l)(F) of

CERCLA, 42 U.S.C . § 9621(f)(l)(F) , EPA notified the State of

Colorado (the "State") of settlement negotiations with D&RG and

EPA has provided the state with an opportunity to participate in

such negotiations and be a party to this settlement. The State

has informed EPA that it does not intend to be a signatory to

this Consent Decree.

L. In accordance with Section 122(j)(l ) of CERCLA, 42

U.S.C . § 9622(j)(l) , EPA has notified the Department of Interior

of negotiations with potentiall y responsible parties regarding

the release of hazardous substances that may have resulted in

injury to the natural resources under Federal trusteeship and

encouraged the trustee(s ) to participate in the negotiation of

this Consent Decree. The State natural resource trustees have

also been notified of this Consent Decree.

M. The Parties recognize, and the Court by entering this

Consent Decree finds , that this Consent Decree has been

negotiated by the Parties in good faith and implementation of

this Consent Decree will expedite the cleanup of the Site and

will avoid prolonged and complicated litigatio n between the

Parties, and that this Consent Decree is fair, reasonable, and in

the public interest.
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NOW, THEREFORE, it is hereby Ordered, Adjudged, and

Decreed:

I I . JURISDICTIO N

1. Thi s Court has jurisdictio n over the subject matter and

the parties to this Consent Decree pursuant to 28 U.S.C . §§ 1331

a nd 1345, and 42 U.S.C . §§ 9606, 9607, and 9613(b) . The parties

agree to be bound by the terms of this Decree and not to contest

its validit y in any subsequent proceeding to implement or enforce

its terms.

2. Venue is proper in this Court pursuant to 28 U.S.C . §

1391 (b) and Section 113(b ) of CERCLA, 42 U.S.C . § 9613(b) .

III . PARTIE S BOUND

3. Thi s Consent Decree applie s to and is binding upon D&RG

and its successors and assigns, and the United States . Any

change in ownership or corporate status of D&RG including, but

not limited to, any transfer of assets or real or personal

property shall in no way alter the responsibilities of D&RG under

this Consent Decree.

4. D&RG shall provide a copy of this Consent Decree to

each contractor hired to perform the Work (as defined below)

required by this Consent Decree and to each person representing

D&RG with respect to the Sit e or the Work and shall condition all

contracts entered into hereunder upon performance of the Work in

conformity with the terms of this Consent Decree. D&RG or its

contractors shall provide written notice of the Consent Decree to

all subcontractors hired to perform any portion of the Work
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required by this Consent Decree. D&RG shall nonetheless be

responsible for ensuring that its contractors and subcontractors

perform the Work contemplated herein in accordance with this

Consent Decree. With regard to the activities undertaken

pursuant to this Consent Decree, each contractor and

subcontractor shall be deemed to be in a contractual relationship

with D&RG within the meaning of Section 107(b)(3 ) of CERCLA, 42

U.S.C . § 9607(b)(3) .

I V . DEFINITION S

5. Unles s otherwise expressl y provided herein, terms used

in this Consent Decree which are defined in CERCLA or in

regulations promulgated under CERCLA shall have the meaning

assigned to them in CERCLA or in such regulations. Whenever

terms listed below are used in this Consent Decree or in the

appendices attached hereto and incorporated hereunder, the

followin g definition s shall apply :

"Arkansas Valle y tailings" shall mean the fluvial tailings

located along the Arkansas River from its confluence with the

California Gulch downstream to its confluence with Lake Fork.

"CERCLA" shall mean the Comprehensive Environmental

Response, Compensation, and Liabilit y Act of 1980, as amended, 42

U.S.C . §§ 9601 et seg.

"CDH" shall mean the Colorado Department of Health and any

successor departments or agencies of the State.

"Consent Decree" shall mean this Decree and all appendices

attached hereto (listed in Section XXX). In the event of
7

conflic t between this Decree and any appendix, this Decree shall

control.

"Day" shall mean a calendar day unless expressl y stated to

be a working day. "Working day" shall mean a day other than a

Saturday , Sunday , or State or Federal holiday . In computing any

period of time under this Consent Decree, where the last day

would fal l on a Saturday , Sunday , or State or Federal holiday ,

the period shall run until the close of business of the next

working day.

"D&RG" shall mean defendan t Denver & Rio Grande Western

Railroad.

"EPA" shall mean the United States Environmental Protection

Agency and any successor departments or agencies of the United

States.

"Feasibilit y Study" or "FS 1 1 shall mean the process of

developin g and evaluating options for Remedial Action for any

release or threat of release of Waste Material at or from the

Site. Thi s term also refers to a report that describes the

result of the study.

"Future Response Costs" shall mean all costs, including,

but not limited to, direct and indirect costs, that the United

States incurs from Jul y 16, 1993 onwards in reviewing or

developin g plans , reports and other items pursuant to this

Consent Decree, verifying the Work, or otherwise implementing,

overseeing, or enforcing this Consent Decree, including, but not

limited to, payroll costs, contractor costs, travel costs,
8

laboratory costs, the costs incurred pursuant to Sections VII

(Additional Response Actions) , VIII (EPA Periodic Review), X

(Access) (including, but not limited to, attorneys fees and the

amount of jus t compensation), XVI (Emergency Response) , and

Paragraph 87 of Section XXII (Covenants Not To Sue by Plaintiff) .

"National Contingency Plan" or "NCP" shall mean the

National Oil and Hazardous Substances Pollutio n Contingency Plan

promulgated pursuant to Sectio n 105 of CERCLA, 42 U.S.C . § 9605,

codified at 40 C.F.R . Part 300, including, but not limited to,

any amendments thereto.

"Operable Unit" or "OU" shall mean any discrete action that

comprises an incremental step toward comprehensively addressing

contamination at the Site . An OU may address a particular

geographic area, media, type of contamination, phase of study or

clean-up that lends itsel f to efficien t study or clean-up.

"Operation and Maintenance" or "0 & M" shall mean all

activities required to maintain the effectivenes s of the Remedial

Action as required under the Operation and Maintenance Plan

approved or developed by EPA pursuant to this Consent Decree and

a ny relevant Statement of Work ("SOW") .

"Paragraph" shall mean a portion of this Consent Decree

identified by an arabic numeral or an upper case letter.

"Parties" shall mean the United States , and D&RG .

"Past Response Costs" shall mean all costs, including, but

not limited to, direct and indirect costs and interest, that the
9

United States incurred and paid with regard to the Site prior to

Jul y 15, 1993.

"Performance Standards" shall mean the cleanup standards,

standards of control, and other substantive requirements,

criteria or limitations set forth in the ROD or the Statement of

Work.

"Plaintiff" shall mean the United States .

"Railroad easement" shall mean the approximatel y fift y (50 )

foot wide railroad easement owned by D&RG that traverses the town

of Leadville , Colorado, from the end of the track sign to the

railroad yard.

"Record of Decision" or "ROD" shall mean the primary

decision document issued by EPA and all attachments thereof ,

substantiating the need for and authorizing any Remedial Action

for an OU within the Sit e pursuant to CERCLA and the NCP.

"Remedial Action" shall mean those activities, except for

Operation and Maintenance, to be undertaken by D&RG , if

determined necessary by EPA, to implement the final plan s and

specification s submitted by D&RG pursuant to the Remedial Design

Work Plan and approved by EPA.

"Remedial Action Work Plan" shall mean the document

submitted by D&RG pursuant to Paragraph 14. a of this Consent

Decree, if determined necessary by EPA, and described more full y

in Paragraph 14.b.

"Remedial Design" shall mean those activities to be

undertaken by D&RG , if determined necessary by EPA, to develop
10

the final plans and specification s for the Remedial Action

pursuant to the Remedial Design Work Plan .

"Remedial Design Work Plan" shall mean the document

submitted by D&RG pursuant to Paragraph 13. a of this Consent

Decree, if determined necessary by EPA, and described more full y

in Paragraph 13.b.

"Removal Action" shall mean those actions required by an

Action Memorandum issued by EPA that may be necessary to prevent,

minimize, or mitigate damage to the public health, welfare , or

the environment presented by a release or threat of release of

Waste Materials at the Site.

"Section" shall mean a portion of this Consent Decree

identified by a roman numeral.

"Site" shall mean that portion of the Remedial

Investigation/Feasibilit y Stud y area of the California Gulch

Superfun d Site , encompassing approximately 16 square miles,

located in Lake County, Colorado and depicted generally on the

map attached as Appendix B. For purposes of this decree only,

t he "Site" also includes the Arkansas Valle y tailings , surface

water, and groundwater, except the groundwater underlaying the

three slag piles owned by D&RG , the easement owned by D&RG , and

the railyard owned by D&RG .

"State" shall mean the State of Colorado.

"Statement of Work" or "SOW" shall mean the statement of

work for implementation of Work within the Work Area under this

Consent Decree. The Statement of Work is attached as Appendix A.
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"Supervising Contractor" shall mean the principal

contractor retained by D&RG to supervise and direct the

implementation of the Work under this Consent Decree.

"United States" shall mean the United States of America.

"Waste Material" shall mean (1) any "hazardous substance"

under Section 101(14) of CERCLA, 42 U.S.C . § 9601(14) ; (2) any

pollutan t or contaminant under Section 101(33) , 42 U.S.C .

§ 9601(33) ; and (3) any "solid waste" under Section 1004(27 ) of

RCRA, 42 U.S.C . § 6903(27) .

"Work" shall mean all activities D&RG is required to

perform under this Consent Decree, except those required by

Section XXVI (Retention of Records).

"Work Area" shall mean those portions of the Sit e on which

D&RG is required to perform Work under the Statemen t of Work.

V . GENERAL PROVISIONS

6. Objectives of the Parties

T he objectives of the Parties in entering into this Consent

Decree are: (a) to protect public health, welfare , and the

environment from releases or threatened releases of Waste

Material at or from the Site by expeditin g the conclusion of a

coordinated RI/FS process and the design and implementation of

response actions within the Work Area by D&RG ; (b) to reimburse

the United States Past Response Costs, and Future Response Costs

of the Plaintif f associated with the Work Area; and (c) to

resolve D&RG' s Site-wide liabilit y subject to the specifi c

exclusions set forth in this Consent Decree.
12

7. Commitments by D&RG

D&RG shall finance and perform all response actions

selected by EPA within the Work Area in accordance with this

Consent Decree and all plans , standards, specifications , and

schedules set forth in or developed and approved by EPA pursuant

to Section VI of this Consent Decree. D&RG shall reimburse the

United States for D&RG's share of its Past Response Costs and for

all of its Future Response Costs as provided in this Consent

Decree. The United States agrees that from the payment of

$1,125,293.52 by D&RG for Past Response Costs and resolution of

its alleged site wide liability , including residential soils,

$860,293.52 will be credited to reduce the potential liabilit y of

ASARCO to the United States .

8. Compliance With Applicabl e Law

A ll activities undertaken by D&RG pursuant to this Consent

Decree shall be performed in accordance with the requirements of

all applicabl e Federal and State laws and regulations. D&RG must

also comply with all applicable or relevant and appropriate

requirements of all Federal and State environmental laws as set

forth in the attached Statement of Work, and/or other Action

Memoranda, or ROD(s) , issued pursuant to this Consent Decree.

T he activities conducted pursuant to this Consent Decree, if

approved by EPA, shall be considered to be consistent with the

NCP .
13

9. Permits

a. As provided in Section 121(e ) of CERCLA, 42 U.S.C .

§ 9621(e) , and Sections 300.5 and 300.400(e) of the NCP, 40

C.F.R . Section s 300.5 and 300.400(e) , no permit shall be required

for any portion of the Work conducted entirely on-site. Where

any portion of the Work requires a Federal or State permit or

approval , D&RG shall submit timely and complete application s and

take all other actions necessary to obtain all such permits or

approvals.

b. D&RG may seek relief under the provisions of

Section XIX (Forc e Majeure ) of this Consent Decree for any delay

in the performance of the Work resultin g from a failure to

obtain, or a delay in obtaining, any permit required for the

Work.

c. Thi s Consent Decree is not, and shall not be

construed to be, a permit issued pursuant to any Federal or State

statute or regulation.

10. Notic e of Obligation s to Successors-in~Title

a. Withi n 15 days after the entry of this Consent

Decree, D&RG shall record a certified copy of this Consent Decree

with the Lake County Clerk and Recorder, Lake County, Colorado.

Thereafter, each deed, title , or other instrument conveying an

interest in D&RG owned property that is both part of the Work

Area and included in the Site shall contain a notice stating that

the property is subject to this Consent Decree and shall

reference the recorded location of the Consent Decree and any
14

restrictions applicable to the property under this Consent

Decree.

b. The obligations of D&RG with respect to (i) the

provision of access under Section X (Access) and, if applicable ,

(ii ) the implementation of institutional controls, shall be

binding upon D&RG and any and all persons who subsequently

acquire any such interest or portion thereof (hereinafter

"Successors-in-Title"). Withi n 15 days after the entry of this

Consent Decree, D&RG shall record at the Lake County Clerk and

Recorder' s Office , Lake County, Colorado, a notice of obligation

to provide access under Section X (Access ) and related covenants.

Each subsequent instrument conveying an interest to any such

property included in the Sit e shall reference the recorded

location of such notice and covenants applicabl e to the property.

c. D&RG and any Successor-in-Title shall , at least 30

days prior to the conveyance of any such interest, give written

notice of this Consent Decree to the grantee and written notice

to EPA of the proposed conveyance, includin g the name and address

of the grantee, and the date on which notice of the Consent

Decree was given to the grantee. In the event of any such

conveyance, D&RG' s obligations under this Consent Decree,

includin g its obligations to provide or secure access pursuant to

Section X, shall continue to be met by D&RG . In addition, if the

United States approves, the grantee may perform some or all of

the Work under this Consent Decree. In no event shall the

conveyance of an interest in property that includes, or is a
15

portion of, the Site , release or otherwise affec t the liabilit y

of D&RG to comply with the Consent Decree.

V I. PERFORMANCE OF THE WORK BY D&RG

11. Selectio n of Supervisin g Contractor.

a. All aspects of the Work to be performed by D&RG

pursuant to Sections VI (Performance of the Work) , VII

(Additional Response Actions) , VIII (EPA Periodic Review), an d IX

(Qualit y Assurance, Samplin g and Data Analysis ) of this Consent

Decree shall be under the direction and supervision of the

Supervisin g Contractor, the selection of which shal l be subject

to disapproval by EPA. Withi n 10 days after the lodgin g of this

Consent Decree, D&RG shall notif y EPA in writing of the name,

title , and qualification s of any contractor proposed to be the

Supervising Contractor. EPA will issue a notice of disapproval

or an authorization to proceed. If at any time thereafter, D&RG

proposes to change a Supervisin g Contractor, D&RG shall give such

notice to EPA and must obtain an authorization to proceed from

EPA, after a reasonable opportunity for review and comment by the

State, before the new Supervising Contractor performs , directs,

or supervises any Work under this Consent Decree.

b. If EPA disapproves a proposed Supervising

Contractor, EPA will notif y D&RG in writing. D&RG shall submit

to EPA a list of contractors, includin g the qualification s of

each contractor, that would be acceptable to D&RG within 30 days

of receipt of EPA' s disapproval of the contractor previously

proposed. EPA wil l provide written notice of the name(s) of any
16

contractor(s) that it disapproves and an authorization to proceed

with respect to any of the other contractors. D&RG may select

any contractor from that list that is not disapproved and shall

notif y EPA of the name of the contractor selected within 21 days

of EPA' s authorization to proceed.

c. If EPA fail s to provide written notice of its

authorization to proceed or disapproval as provided in this

Paragraph and this failure prevents D&RG from meeting one or more

deadlines in a pla n approved by the EPA pursuant to this Consent

Decree, D&RG may seek relief under the provisions of Section XIX

(Force Majeure ) hereof.

1 2. Selectio n and Initiatio n of Response Actions.

a. Pursuant to the terms of this Consent Decree, D&RG

shall undertake actions to respond to releases or threatened

releases of Waste Material within the Work Area through a

coordinated process in accordance with CERCLA and the NCP . These

actions, processes, and a schedule for completion of the Work,

are set forth in the attached Statement of Work. The public will

be afforded all opportunities for public comment at the

appropriate steps in this process as provided by CERCLA and the

NCP .

b. D&RG shall design and conduct the Feasibilit y

Study(ies ) pursuant to the attached SOW. D&RG shall identif y the

Performance Standards , includin g any applicabl e or relevant and

appropriate requirements as required by Section 121(d ) of CERCLA,

42 U.S.C . § 9621(d) . After accepting the FS(s) and any related
17 ,

reports, EPA, after consultation with the State , will select the

response actions, and issue ROO(s ) describing the response

actions to be performed in the Work Area.

13. Remedial Design.

a. In accordance with the schedules developed in the

attached SOW , D&RG shall submit to EPA a work plan , if determined

to be necessary by EPA, for the design of the Remedial Action at

t he relevant OU. The Remedial Design Work Plan shall provide for

design of the remedy set forth in the ROD(s ) in accordance with

the relevant SOW and, upon its approval by EPA , shall be

incorporated into and become enforceable under this Consent

Decree. Withi n 30 days after EPA's issuance of an authorization

to proceed, D&RG shall submit to EPA a Health and Safet y Plan for

field design activities which conforms to the applicabl e

Occupational Safet y and Health Administratio n and EPA

requirements including, but not limited to, 29 C.F.R . § 1910.120.

b. The Remedial Design Work Plan shall include plan s

and schedules for implementation of all remedial design and predesign tasks identified in the relevant SOW . In addition , the

Remedial Design Work Plan shall include a schedule for completion

of the Remedial Action Work Plan .

c. Upon approval of the Remedial Design Work Plan by

EPA, after a reasonable opportunity for review and comment by the

State , and submittal of the Health and Safet y Plan for all field

activities to EPA, D&RG shall implement the Remedial Design Work

Plan. D&RG shall submit to EPA all plans , submittals and other
18

deliverables required under the approved Remedial Design Work

Plan in accordance with the approved schedule for review and

approval pursuant to Section XII (Submission s Requiring Agency

Approval) . Unless otherwise directed by EPA, D&RG shall not

commence further Remedial Design activities at the Work Area

prior to approval of the Remedial Design Work Plan .

d. The preliminary design submittal will include some

or all of the followin g elements: (1) design criteria; (2)

results of treatabilit y studies, if determined necessary by EPA;

( 3) results of additional field samplin g an d pre-design work; (4)

project delivery strategy; (5) preliminary plans , drawings and

sketches; (6) required specification s in outline form; an d (7)

preliminary construction schedule.

e. The intermediate design submittal , if required by

EPA or if independently submitted by D&RG , shall be a

continuation and expansion of the preliminary design. Any value

engineering proposal s must be identified and evaluated during

this review.

f . The pre-final/final design submittal will include

some or all of the followin g elements: (1) final plan s and

specifications; (2 ) Operation an d Maintenance Plan ; (3 )

Construction Quality Assurance Project Plan (CQAPP) ; (4 ) Field

Samplin g Plan (directed at measuring progress towards meeting

Performance Standards) , if determined necessary by EPA; and (5)

Contingency Plan. The CQAPP, which shall detail the approach to

quality assurance during construction activities at the site,
19

shall specif y a quality assurance officia l ("QA Official") , who

is a person independent of the person designated as the Project

Coordinator, to conduct a quality assurance program during the

construction phase of the project . The QA Officia l can work for

the same Supervisin g Contractor, as long as he or she meets the

criterion of being independent from other involvement with the

Work.

14. Remedial Action.

a. Within 30 days after the approval of the final

relevant design submittal , D&RG shall submit to EPA a work pla n

f or the performance of the Remedial Action , if determined

necessary by EPA, at the relevant OU within the Work Area

("Remedial Action Work Plan") . Thi s Remedial Action Work Plan

shall provide for construction of the remedy, in accordance with

the relevant SOW , as set forth in the design plan s and

specification s in the approved final design submittal. Upon its

approval by EPA, the Remedial Actio n Work Plan shall be

incorporated into and become enforceable under this Consent

Decree. At the same time as D&RG submits the Remedial Action

Work Plan , it shall submit to EPA a Health and Safet y Plan for

field activities required by the Remedial Action Work Plan which

conforms to the applicable Occupational Safet y and Health

Administration and EPA requirements including, but not limited

to, 29 C.F.R . § 1910.120.

b. Each Remedial Action Work Plan shall , at a

minimum, address the requirements in each relevant SOW and shall
20

contain the following: (I) the schedule for completion of the

Remedial Action; (2) method for selection of the contractor; (3)

schedule for developing and submitting other required Remedial

Action plans; (4) methodology for implementatio n of the

Construction Quality Assurance Plan ; (5) a groundwater monitoring

plan , i f determined necessary by EPA; (6) methods for satisfyin g

permittin g requirements; (7) methodology for implementation of

t he Operation and Maintenance Plan ; (8) methodology for

implementation of the Contingency Plan ; (9) tentative formulatio n

of the Remedial Action team; (10 ) construction quality control

pla n (by constructor); and (11 ) procedures and plan s for the

decontamination of equipment and the disposal of contaminated

materials, if determined necessary by EPA. Each Remedial Action

Work Plan also shall include a schedule for implementation of all

Remedial Action tasks identified in the final design submittal

a nd shall identif y the initial formulatio n of D&RG/ s Remedial

Action Project Team (including, but not limited to, the

Supervisin g Contractor).

c. Upon approval of the Remedial Action Work Plan by

EPA, after a reasonable opportunit y for review and comment by the

State, D&RG shall implement the activities required under the

Remedial Action Work Plan . D&RG shall submit to EPA all plans ,

submittals, or other deliverables required under the approved

Remedial Action Work Plan in accordance with the approved

schedule for review and approval pursuant to Section XII

(Submission s Requiring Agency Approval) . Unless otherwise
21

directed by EPA, D&RG shall not commence physical on-site

activities at the Site prior to approval of the Remedial Action

Work Plan . Thi s paragraph shall not preclude D&RG from

commencing ballas t operations as long as an operations pla n is

submitted in advance to, and approved by, EPA.

15. The Work performed by D&RG pursuant to this Consent

Decree shall include the obligatio n to achieve the relevant

Performance Standards , as defined by the applicabl e ROD or RODs

and relevant SOW.

16. D&RG acknowledges and agrees that nothing in this

Consent Decree, any SOW , or the Remedial Design or Remedial

Action Work Plan constitutes a warranty or representation of any

kind by Plaintif f that compliance with the Work requirements set

forth in the SOW and the Work Plan s wil l achieve the Performance

Standards . D&RG' s compliance with the Work requirements shall

n ot foreclose Plaintif f from seeking compliance with all terms

and conditions of this Consent Decree, including, but not limited

t o, the applicable Performance Standards .

1 7. D&RG shall , prior to any off-Sit e shipment of Waste

Material from the Sit e to an out-of-state RCRA waste management

facility , provide written notificatio n to the appropriate state

environmental officia l in the receiving facility' s state and to

t he EPA Project Coordinator of such shipment of Waste Material .

However, this notificatio n requirement shall not appl y to any

off-Sit e shipments when the total volume of all such shipments

will not exceed 10 cubic yards.
22

a. D&RG shall include in the written notificatio n the

followin g information , where available: (1) the name and location

of the facilit y to which the Waste Material is to be shipped; (2)

the type and quantity of the Waste Material to be shipped; (3)

the expected schedule for the shipment of the Waste Material; and

( 4) the method of transportation. D&RG shall notif y the state in

which the planned receiving facilit y is located of major changes

in the shipment plan , such as a decision to ship the Waste

Material to another facilit y within the same state, or to a

facilit y in another state.

b. The identity of the receiving facilit y and state

will be determined by D&RG followin g the award of the contract

f or Remedial Action construction. D&RG shall provide the

information required by Paragraph 17.a as soon as practicable

after the award of the contract and before the Waste Material is

actuall y shipped.

18. Operation and Maintenance.

F or all response actions within the Work Area and

covered by this Consent Decree, D&RG shall perform Operation and

Maintenance to maintain the effectivenes s of the response action

in accordance with the NCP and the relevant SOW.

VII . ADDITIONA L RESPONS E ACTION S

19. In the event that EPA determines or D&RG

proposes that additional response actions are necessary to meet

the Performance Standards or to carry out the remedy selected in

the relevant ROD, notificatio n of such additional response
23 ,

actions shall be provided to the parties respective project

Coordinator.

20. Withi n 30 days of receipt of notice from EPA or D&RG

pursuant to Paragraph 19 that additional response actions are

necessary (or such longer time as may be specified by EPA) , D&RG

shall submit for approval by EPA, after reasonable opportunity

for review and comment by the State , a work pla n for the

additional response actions. The pla n shall conform to the

applicable requirements of Paragraphs 13 and 14. Upon approval

of the pla n pursuant to Section XII (Submission s Requiring Agency

Approval) , D&RG shall implement the pla n for additional response

actions in accordance with the schedule contained therein.

21. Any additional response actions that D&RG proposes are

necessary to meet the Performance Standards or to carry out the

remedy selected in the ROD shall be subject to approval by EPA,

after reasonable opportunity for review and comment by the State ,

and, if authorized by EPA, shall be completed by D&RG in

accordance with plans , specifications , and schedules approved or

established by EPA pursuant to Sectio n XII (Submission s Requiring

Agency Approval) .

22. D&RG may invoke the procedures set forth in Section XX

(Dispute Resolution) to dispute EPA' s determination that

additional response actions are necessary to meet the Performance

Standards or to carry out the remedy selected in the ROD. Such a

dispute shall be resolved pursuant to Paragraphs 65-68 of this

Consent Decree.
24

VIII . EPA PERIODI C REVIEW

23. D&RG shall conduct any studies and investigations as

requested by EPA in order to permit EPA to conduct reviews at

least every five years as required by Sectio n 121(c ) of CERCLA,

42 U.S.C . § 9621 (c) , and any applicabl e regulations.

2 4. If required by Section s 113(k)(2 ) or 117 of CERCLA, 42

U.S.C . §§ 9613 (k) (2) or 9617, D&RG and the public will be

provided with an opportunity to comment on any further response

actions proposed by EPA as a result of the review conducted

pursuant to Section 121(c ) of CERCLA and to submit written

comments for the record during the public comment period. After

the period for submission of written comments is closed, the

Regional Administrator, EPA Region VIII or his/her delegate will

determine in writing whether further response actions are

appropriate.

2 5. If the Regional Administrator, EPA Region VIII, or

his/her delegate determines that informatio n received, in whole

or in part , during the review conducted pursuant to Section

121(c ) of CERCLA, indicates that the Remedial Action is not

protective of human health and the environment, D&RG shall

undertake any further response actions EPA has determined are

appropriate, unless its liabilit y for such further response

actions is barred by the Covenant Not to Sue set forth in Section

XXII. D&RG shall submit a pla n for such work to EPA for approval

in accordance with the procedures set forth in Section VI

(Performance of the Work by D&RG) and shall implement the pla n
25 , .

approved by EPA. D&RG may invoke the procedures set forth in

Section X X (Dispute Resolution) to dispute (1 ) EPA' s

determination that the remedial action is not protective of human

health an d the environment, (2) EPA' s selection of the further

response actions ordered as arbitrary and capricious or otherwise

n ot in accordance with law, or (3) EPA's determination that

D&RG' s liabilit y for the further response actions requested i s

reserved in Paragraphs 83, 84, or 86 or otherwise not barred by

t he Covenant Not to Sue set forth in Sectio n XXII.

I X . QUALIT Y ASSURANCE . SAMPLING , an d DAT A ANALYSI S

26. D&RG shall use qualit y assurance, quality control, and

chain of custody procedures for any treatability , design ,

compliance an d monitoring samples in accordance with EPA' s

"Interim Guidelines and Specification s For Preparing Quality

Assurance Project Plans," December 1980, (QAMS-005/80) ; "Data

Quality Objective Guidance," (EPA/540/G87/00 3 an d 004) ; "EPA NEIC

Policies and Procedures Manual," May 1978, revised November 1984,

(EPA 330/9-78-001-R); and subsequent amendments to such

guidelines upon notificatio n by EPA to D&RG of such amendment.

Amended guidelines shall appl y only to procedures conducted after

such notification . Prior to the commencement of any monitoring

project under this Consent Decree, D&RG shall submit to EPA for

approval , after a reasonable opportunit y for review and comment

by the State , a Quality Assurance Project Plan ("QAPP" ) to EPA

that is consistent with the SOW, the NCP and applicabl e guidance

documents. If relevant to the proceeding, the Parties agree that
26

validated samplin g data generated in accordance with the QAPP(s )

and reviewed and approved by EPA shall be admissible as evidence,

without objection , in any proceeding under this Decree. D&RG

shall ensure that EPA personnel and its authorized

representatives are allowed access at reasonable times to all

laboratories utilized by D&RG in implementin g this Consent

Decree. In addition , D&RG shall ensure that such laboratories

shall analyze all samples submitted by EPA pursuant to the QAPP

f or quality assurance monitoring. D&RG shal l ensure that the

laboratories it utilizes for the analysis of samples taken

pursuant to this Decree perform all analyses according to

accepted EPA methods. Accepted EPA methods consist of those

methods which are documented in the "Contract Lab Program

Statement of Work for Inorganic Analysis" and the "Contract Lab

Program Statement of Work for Organic Analysis," dated February

1990, and any amendments made thereto during the course of the

implementation of this Decree. D&RG shall ensure that all

laboratories it uses for analysis of samples taken pursuant to

this Consent Decree participate in an EPA or EPA-equivalent QA/Q C

program.

2 7. Upon request, D&RG shall allow spli t or duplicate

samples to be taken by EPA or its authorized representatives.

D&RG shall notif y EPA not less than 14 days in advance of any

sample collection activity unless shorter notice is agreed to by

EPA. In addition , EPA shall have the right to take any

additional samples that EPA deems necessary. Upon request, EPA
27

shall allow D&RG to take spli t or duplicate samples of any

samples i t takes as part of the Plaintiff' s oversight of D&RG' s

implementation of the Work.

28. D&RG shall submit to EPA two copies of the results of

all samplin g and/or tests or other data obtained or generated by

or on behalf of D&RG with respect to the Sit e and/or the

implementation of this Consent Decree unless EPA agrees

otherwise.

29. Notwithstandin g any provision of this Consent Decree,

the United States hereby retains all of its information gathering

and inspection authorities and rights, including enforcement

actions related thereto, under CERCLA, RCRA and any other

applicable statutes or regulations.

X . ACCESS

30. Commencing upon the date of entry of this Consent

Decree, D&RG agrees to provide the United States , its

representatives, including EPA and its contractors, access at all

reasonable times to those areas owned by D&RG in the Work Area

and any other property to which access is required for the

implementation of this Consent Decree, to the extent access to

the property is controlled by D&RG, for the purposes of

conducting any activity related to this Consent Decree including,

but not limited to:

a. Monitoring the Work;

b. Verifyin g any data or information submitted to the

United States;
28

c. Conducting investigations relatin g to

contamination at or near the Site;

d. Obtaining samples;

e. Assessing the need for, planning, or implementing

additional response actions at or near the Site;

f. Inspectin g and copying records, operating logs ,

contracts, or other documents maintained or

generated by D&RG or their agents, consistent with

Section XXV; an d

g. Assessing D&RG' s compliance with this Consent

Decree.

31. To the extent that the property to which access is

required for the implementation of this Consent Decree and

performance of the Work is owned or controlled by persons other

than D&RG , D&RG shall use best effort s to secure from such

persons access for D&RG , as well as for the United States and its

representatives, including, but not limited to, its contractors,

as necessary to effectuat e this Consent Decree. For purposes of

this Paragraph, "best efforts" includes the payment of reasonable

sums of money in consideration of access. If any access required

to complete the Work is not obtained within 45 days of the date

of lodgin g of this Consent Decree, or within 45 days of the date

EPA notifies D&RG in writing that additional access beyond that

previously secured is necessary, D&RG shall promptl y notif y the

United States , and shall include in that notificatio n a summary

of the steps D&RG has taken to attempt to obtain access. The
29

United States may, as it deems appropriate , assist D&RG in

obtaining access. D&RG shall reimburse the United States , in

accordance with the procedures in Sectio n XVII (Reimbursement of

Response Costs) , for all costs incurred by the United States in

obtaining access.

32. Notwithstandin g any provision of this Consent Decree,

the United States retains all of its access authorities and

rights, including enforcement authorities related thereto, under

CERCLA, RCRA and any other applicabl e statute or regulations.

X I . REPORTIN G REQUIREMENT S

33. In addition to any other requirement of this Consent

Decree, D&RG shall submit to EPA two copies of written quarterly

progress reports that: (a) describe the actions which have been

taken toward achieving compliance with this Consent Decree during

the previous quarter; (b) include a summary of all results of

sampling and tests and all other data received or generated by

D&RG or its contractors or agents in the previous quarter; (c)

identif y all work plans , plan s and other deliverables required by

this Consent Decree completed and submitted during the previous

quarter; (d) describe all actions, including, but not limited to,

data collection and implementation of work plans , which are

scheduled for the next quarter and provide other information

relating to the progress of construction, including, but not

limited to, critical path diagrams, Gantt charts and Pert charts;

( e) include information regarding percentage of completion,

unresolved delays encountered or anticipated that may affec t the
30

future schedule for implementation of the Work, and a description

of effort s made to mitigate those delays or anticipated delays;

( f) include any modification s to the work plan s or other

schedules that O&RG has proposed to EPA or that have been

approved by EPA; and (g) describe all activities undertaken in

support of the Community Relations Pla n during the previous

quarter and those to be undertaken in the next quarter. D&RG

shall submit these quarterly progress reports to EPA by the 28th

of April , July , October, and Januar y of every year followin g the

entry of this Consent Decree until EPA notifie s D&RG pursuant to

Paragraph 50.b of Section XV (Certificatio n of Completion) . If

requested by EPA, D&RG shall also provide briefings for EPA to

discuss the progress of the Work.

34. D&RG shall notif y EPA of any change in the schedule

described in the quarterly progress report for the performance of

any activity, including, but not limited to, data collection and

implementation of work plans , no later than seven days prior to

the performance of the activity.

35. Upon the occurrence of any event during performance of

the Work that D&RG is required to report pursuant to Section 103

of CERCLA or Section 304 of the Emergency Planning and Community

Right-to-Know Act (EPCRA), D&RG shall within 24 hours of the onset of such event orally notif y the EPA Project Coordinator

(Denise Link, (303)293-1529 ) or the Alternate EPA Project

Coordinator (Marc Alston , (303)293-1520 ) (in the event of the

unavailability of the EPA Project Coordinator) , or, in the event
31

that neither the EPA Project Coordinator or Alternate EPA Project

Coordinator is available, the Emergency Response Section , Region

VIII, United States Environmental Protection Agency (303)293-

1788. These reporting requirements are in addition to the

reporting required by CERCLA Section 103 or EPCRA Section 304.

36. Withi n 20 days of the onset of such an event, D&RG

shall furnish to Plaintif f a written report, signed by D&RG' s

Project Coordinator, setting forth the events which occurred and

the measures taken, and to be taken, in response thereto. Withi n

30 days of the conclusion of such an event, D&RG shall submit a

report setting forth all actions taken in response thereto.

37. D&RG shall submit two copies of all plans , reports,

and data required by the SOW , the Remedial Design Work Plan , the

Remedial Action Work Plan , or any other approved plan s to EPA in

accordance with the schedules set forth in such plans.

38. All reports and other documents submitted by D&RG to

E PA (other than the quarterly progress reports referred to above)

which purport to document D&RG's compliance with the terms of

this Consent Decree shall be signed by an authorized

representative of D&RG .

XII . SUBMISSION S REQUIRIN G AGENC Y APPROVAL

39. After review of any plan , report or other item which

is required to be submitted for approval pursuant to this Consent

Decree, EPA, after reasonable opportunit y for review and comment

by the State , shall: (a) approve, in whole or in part, the

submission; (b) approve the submission upon specified conditions;
32

( c) modif y the submission to cure the deficiencies; (d)

disapprove, in whole or in part , the submission, directing that

D&RG modif y the submission; or (e) any combination of the above.

40. In the event of approval , approval upon conditions, or

modificatio n b y EPA, pursuant to Paragraph 39(a) , (b) , or (c) , D&RG shall proceed to take any action required by the plan ,

report, or other item, as approved or modified by EPA subject

only to its right to invoke the Dispute Resolution procedures set

forth in Section XX (Dispute Resolution) with respect to the

modification s or conditions made by EPA. In the event that EPA

modifie s the submission to cure the deficiencie s pursuant to

Paragraph 38(c ) and the submission has a material defect , EPA

retains its right to seek stipulated penalties , as provided in

Sectio n XXI .

41. a. Upon receipt of a notice of disapproval pursuant

to Paragraph 39(d) , D&RG shall , within 15 days or such other time

as specified by EPA in such notice, correct the deficiencies and

resubmit the plan , report, or other item for approval . Any

stipulated penalties applicabl e to the submission, as provided in

Section XXI, shall accrue during the 15-day period or otherwise

specified period but shall not be payable unless the resubmission

is disapproved or modified due to a material defec t as provided

in Paragraph 43.

b. Notwithstandin g the receipt of a notice of disapproval

pursuant to Paragraph 39(d) , D&RG shall proceed, at the direction

of EPA, to take any action required by any non-deficient portion
33

of the submission. Implementatio n of any non-deficient portion

of a submission shall not relieve D&RG of any liabilit y for

stipulated penalties under Section XXI (Stipulated Penalties) .

42. In the event that a resubmitted plan , report or other

item, or portion thereof , is disapproved by EPA, EPA may again

require D&RG to correct the deficiencies , in accordance with the

preceding Paragraphs. EPA also retains the right to amend or

develop the plan , report or other item. D&RG shall implement any

such plan , report, or item as amended or developed by EPA,

subject only to its right to invoke the procedures set forth in

Section XX (Dispute Resolution) .

43. If upon resubmission, a plan , report, or item is

disapproved or modified by EPA due to a material defect , D&RG

shall be deemed to have failed to submit such plan , report, or

item timel y and adequately unless D&RG invokes the dispute

resolution procedures set forth in Sectio n XX (Dispute

Resolution) and EPA's action is overturned pursuant to that

Section. The provisions of Sectio n XX (Disput e Resolution) and

Sectio n XXI (Stipulated Penalties ) shal l govern the

implementation of the Work and accrual and payment of any

stipulated penalties during Dispute Resolution. I f EPA' s

disapproval or modificatio n is upheld, stipulated penalties shall

accrue for such violation from the date on which the initial

submission was originall y required, as provided in Section XXI .

44. All plans , reports, and other items required to be

submitted to EPA under this Consent Decree shall , upon approval
34

or modificatio n by EPA, be enforceable under this Consent Decree.

In the event EPA approves or modifie s a portion of a plan ,

report, or other item required to be submitted to EPA under this

Consent Decree, the approved or modified portion shal l be

enforceable under this Consent Decree.

XIII . PROJECT COORDINATOR S

4 5. Withi n 20 days of lodgin g this Consent Decree, D&RG

and EPA will notif y each other, in writing, of the name, address

and telephon e number of their respective designated Project

Coordinators and Alternate Projec t Coordinators. If a Project

Coordinator or Alternate Project Coordinator initiall y designated

is changed, the identity of the successor wil l be given to the

other party at least five working days before the changes occur,

unless impracticable, but in no event later than the actual day

t he change is made. D&RG's Project Coordinator shall be subject

to disapproval by EPA and shall have the technical expertise

sufficien t to adequately oversee al l aspects of the Work. D&RG' s

Project Coordinator shall not be an attorney for D&RG in this

matter. He or she may assign other representatives, including

other contractors, to serve as a Sit e representative for

oversight of performance of dail y operations during remedial

activities.

46. Plaintif f may designate other representatives,

including, but not limited to, EPA employees , and federal

contractors and consultants, to observe and monitor the progress

of any activity undertaken pursuant to this Consent Decree.
35 ,

EPA' s Project Coordinator an d Alternate Project Coordinator shall

have the authority lawfull y vested in a Remedial Project Manager

(RPM) and an On-Scene Coordinator (OSC) by the National

Contingency Plan , 40 C.F.R . Part 300. In addition , EPA' s Project

Coordinator or Alternate Project Coordinator shall have

authority, consistent with the National Contingency Plan , to halt

any Work required by this Consent Decree and to take any

necessary response action when he/she determines that conditions

at the Sit e constitute an emergency situation or may present an

immediate threat to public health or welfare or the environment

due to release or threatened release of Waste Material .

4 7. The EPA Project Coordinator and D&RG's Project

Coordinator wil l meet as necessary, but at a minimum, at least

every 2 months.

XIV. ASSURANCE OF ABILIT Y T O COMPLET E WORK

48. Withi n 30 days of entry of this Consent Decree, D&RG

shall establish and maintain financial security in the amount of

$300,000 in one of the followin g forms:

( a) A surety bond guaranteeing performance of the

Work;

(b) One or more irrevocable letters of credit

equalling the total estimated cost of the Work;

(c) A trust fund; or

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

parent corporations or subsidiaries, or by one or
36

more unrelated corporations that have a substantial

business relationship with D&RG .

4 9. If D&RG seeks to demonstrate the abilit y to complete

the Work through a guarantee by a third party pursuant to

Paragraph 48(d ) of this Consent Decree, D&RG shall demonstrate

that the guarantor satisfie s the requirements of 40 C.F.R . Part

264.143(f) . If D&RG seeks to demonstrate its abilit y to complete

the Work by means of the financial test or the corporate

guarantee pursuant to Paragraph 47(d ) or (e) , it shall resubmit

sworn statements conveying the informatio n required by 40 C.F.R .

Part 264.143(f ) annually , on the anniversary of the effective

date of this Consent Decree. In the event that EPA, after a

reasonable opportunity for review and comment by the State ,

determines at any time that the financial assurances provided

pursuant to this Section are inadequate, D&RG shall , within 30

days of receipt of notice of EPA' s determination , obtain an d

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

assurance listed in Paragraph 47 of this Consent Decree. D&RG's

inability to demonstrate financial abilit y to complete the Work

shall not excuse performance of any activities required under

this Consent Decree.

X V . CERTIFICATION OF COMPLETION

50. Completion of the Remedial Action

a. Withi n 90 days after D&RG concludes that

Performance Standards have been attained, and the Work for that

OU has been full y performed, D&RG shall schedule and conduct a
37

pre-certificatio n inspection to be attended by D&RG and EPA. If,

after the pre-certificatio n inspection, D&RG stil l believes that

the Remedial Action has been full y performed and the Performance

Standards have been attained, it shall submit a written report

requesting certificatio n to EPA for approval , pursuant to Section

X II (Submission s Requiring Agency Approval ) within 30 days of the

inspection. In the report, a registered professional engineer

a nd D&RG's Project Coordinator shall state that such Work for an

OU has been completed in ful l satisfactio n of the requirements of

this Consent Decree pertaining to that OU. The written report

shall include as-built drawings signed and stamped by a

professional engineer. The report shall contain the followin g

statement, signed by a responsible corporate officia l of D&RG or

D&RG' s Project Coordinator:

"To the best of my knowledge, after thorough

investigation, I certif y that the informatio n

contained in or accompanying this submission is true,

accurate and complete. I am aware that there are

significan t penalties for submitting fals e

information , includin g the possibilit y of fin e and

imprisonment for knowing violations."

I f , after completion of the pre-certificatio n inspection an d

receipt and review of the written report, EPA, after reasonable

opportunit y to review and comment by the State , determines that

the action required for the OU, or any portion thereof , has not

been completed in accordance with this Consent Decree or that the

Performance Standards have not been achieved, EPA will notif y

D&RG in writing of the activities that must be undertaken to

complete the Remedial Action and achieve the Performance
38

Standards . EPA will set forth in the notice a schedule for

performance of such activities consistent with the Consent Decree

and the SOW or require D&RG to submit a schedule to EPA for

approval pursuant to Section XII (Submission s Requiring Agency

Approval) . D&RG shall perform all activities described in the

notice in accordance with the specification s and schedules

established pursuant to this Paragraph, subject to their right to

invoke the dispute resolution procedures set forth in Section XX

(Dispute Resolution).

b. If EPA concludes, based on the initial or any

subsequent report requesting Certificatio n of Completio n and

after a reasonable opportunit y for review and comment by the

State , that the response action for the OU has been full y

performed in accordance with this Consent Decree and that the

Performance Standards have been achieved, EPA wil l so certif y in

writing to D&RG . Thi s certificatio n shall constitute the

Certificatio n of Completio n for the relevant OU, including, but

n ot limited to, Section XXII (Covenants Not to Sue by Plaintiff) .

T he Certificatio n of Completio n for the relevant OU shall not

affec t D&RG' s obligations , under Sectio n VII I (EPA Periodic

Review), if any.

51. Completio n of the Work

a. Withi n 90 days after D&RG concludes that all phases

of the Work (includin g O & M), have been full y performed, D&RG

shall schedule and conduct a pre-certificatio n inspection to be

attended by D&RG an d EPA. If , after the pre-certification
39

inspection, D&RG stil l believes that the Work has been full y

performed, D&R6 shall submit a written report by a registered

professional engineer stating that the Work has been completed in

ful l satisfactio n of the requirements of this Consent Decree.

T he report shall contain the followin g statement, signed by a

responsible corporate officia l of D&RG or D&RG' s Project

Coordinator:

" To the best of my knowledge, after thorough

investigation, I certif y that the informatio n

contained in or accompanying this submission is true,

accurate and complete. I am aware that there are

significan t penalties for submitting fals e

information , includin g the possibilit y of fin e and

imprisonment for knowing violations."

I f , after review of the written report, EPA , after reasonable

opportunity to review and comment by the State , determines that

any portion of the Work has not been completed in accordance with

this Consent Decree, EPA wil l notif y D&RG in writing of the

activities that must be undertaken to complete the Work. EPA

will set forth in the notice a schedule for performance of such

activities consistent with the Consent Decree and the SOW or

require D&RG to submit a schedule to EPA for approval pursuant to

Section XII (Submissions Requiring Agency Approval) . D&RG shall

perform all activities described in the notice in accordance with

the specification s and schedules established therein, subject to

its right to invoke the dispute resolution procedures set forth

in Section XX (Dispute Resolution) .

b. If EPA concludes, based on the initial or any

subsequent request for Certificatio n of Completio n by D&RG and
40

after a reasonable opportunity for review and comment by the

State , that the Work has been full y performed in accordance with

this Consent Decree, EPA will so notif y D&RG in writing.

XVI . EMERGENCY RESPONS E

52. In the event of any action or occurrence during the

performance of the Work which causes or threatens a release of

Waste Material from the Work Area that constitutes an emergency

situation or may present an immediate threat to public health or

welfare or the environment, D&RG shall , subject to Paragraph 52,

immediately take all appropriate action to prevent, abate, or

minimize such release or threat of release, and shall immediately

notif y th e EPA' s Project Coordinator, and, i f EPA' s Project

Coordinator i s unavailable, EPA' s Alternate Project Coordinator.

If neither of these persons is available, D&RG shall notif y the

EPA' s Emergency Response Unit , Region VIII (303)293-1788 an d the

C DH Emergency Hotlin e (303)331-8330 . D&RG shall take such

actions in consultation with EPA's Project Coordinator or other

available authorized EPA office r and in accordance with all

applicabl e provisions of the Health and Safet y Plans , the

Contingency Plans , and any other applicabl e plan s or documents

developed pursuant to the SOW. In the event that D&RG fail s to

take appropriate response action as required by this Section , and

E PA takes such action instead, D&RG shall reimburse EPA all costs

of the response action not inconsistent with the NCP pursuant to

Section XVII (Reimbursement of Response Costs) .
41 ,

53. Nothin g in the precedin g Paragraph or in this Consent

Decree shall be deemed to limit any authority of the United

States to take, direct, or order all appropriate action or to

seek an order from the Court to protect human health and the

environment or to prevent, abate, respond to, or minimize an

actual or threatened release of Waste Material on, at, or from

the Work Area.

XVII . REIMBURSEMEN T OF RESPONS E COST S

54. D&RG shall pay to the United State s $1,125,293.52 in

reimbursement of Past Response Costs , by Electronic Funds

Transfer ("EFT " or wire transfer ) to the U.S . Department of

Justice lockbox bank, referencin g the CERCLA Number 08-29 and the

U.S.A.O . fil e number 8530422, within 30 days of the effective

date of this Consent Decree. Payment shal l be made in accordance

with instructions provided by the Plaintif f to D&RG upon

execution of the Consent Decree. Payments by EFT must be

received at the U.S . D.O.J . lockbox bank by 11:00 A.M . (Eastern

Time ) to be credited on that day.

5 5. D&RG shall reimburse the United States for all Future

Response Costs not inconsistent with the National Contingency

Plan incurred by the United States . The United States will send

D&RG a bil l requiring payment that includes an EPA Region cost

summary, known as a SCORE$ report, for United States costs. The

cost summary shall include a summary of direct and indirect costs

incurred by the United States and its contractors on an annual

basis. D&RG may request that EPA provide its cost documentation
42

for any amount demanded. D&RG shall make all payments within 45

days of D&RG's receipt of each bil l requiring payment, except as

otherwise provided in Paragraph 56.

a. D&RG shall make all payments to the United States

required by this Paragraph in the form of a certified check or

checks made payable to "EPA Hazardous Substance Superfund" and

referencing CERCLA Number 08-29 and DOJ Case Number 90-11-3-138.

D&RG shall forward the certified check(s ) to

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

and shall send copies of the check(s ) to the United States as

specified in Section XXVII (Notice s and Submissions ) and to:

Remedial Cost Recovery Program Manager, 8HMR-SR U.S. Environmental Protection Agency

999 18th Street , Suite 500 Denver, CO 80202

56. D&RG may contest payment of any Future Response Costs

under Paragraph 55 if it determines that the United States has

made an accounting error or if it allege s that a cost item that

is included represents costs that are inconsistent with the NCP .

Such objectio n shall be made in writing within 30 days of receipt

of the bill and must be sent to the United State s (if the United

States accounting is being disputed ) pursuant to Section XXVII

(Notice s and Submissions). Any such objectio n shall specificall y

identif y the contested Future Response Costs and the basis for

objection. In the event of an objection , D&RG shall within the

45 day period pay all uncontested Future Response Costs to the
43

United States in the manner described in Paragraph 55.

Simultaneously, D&RG shall establish an interest bearing escrow

account in a federally-insured bank dul y chartered in the State

of Colorado and remit to that escrow account funds equivalent to

the amount of the contested Future Response Costs. D&RG shall

send to the United States , as provided in Sectio n XXVII (Notice s

and Submissions) , a copy of the transmittal letter and check

paying the uncontested Future Response Costs, and a copy of the

correspondence that establishes and funds the escrow account,

including, but not limited to, informatio n containing the

identity of the bank and bank account under which the escrow

account is established as well as a bank statement showing the

initial balance of the escrow account. Simultaneousl y with

establishment of the escrow account, D&RG shall initiate the

Dispute Resolution procedures in Sectio n XX (Dispute Resolution).

If the United States prevails in the dispute, within 14 days of

the resolution of the dispute, D&RG shall pay the sums due (with

accrued interest) to the United State s in the manner described in

Paragraph 55. If D&RG prevails concerning any aspect of the

contested costs, D&RG shall pay that portion of the costs (plus

associated accrued interest) for which it did not prevail to the

United States in the manner described in Paragraph 54; D&RG shall

be disbursed any balance of the escrow account. The dispute

resolution procedures set forth in this Paragraph in conjunction

with the procedures set forth in Section XX (Dispute Resolution)

shall be the exclusive mechanisms for resolving disputes
44

regarding D&RG' s obligation to reimburse the United States for

its Future Response Costs.

57. In the event that the payment required by Paragraph 54

is not made within 30 days of the effective date of this Consent

Decree or the payments required by Paragraph 55 are not made

within 45 days of D&RG's receipt of the bill , D&RG shall pay

interest on the unpaid balance at the rate established pursuant

to Section 107(a ) of CERCLA, 42 U.S.C . § 9607. The interest to

be paid on Past Response Costs, required to be paid pursuant to

paragraph 54 only, shall begin to accrue 31 days after the

effective date of the Consent Decree. The interest on Future

Response Costs shall begin to accrue on the 46th day after the

date of D&RG's receipt of the bill . Interest shall accrue at the

rate specified through the date of D&RG's payment. Payments of

interest made under this Paragraph shall be in addition to such

other remedies or sanctions available to Plaintif f by virtue of

D&RG' s failure to make timely payments under this Section.

XVIII . INDEMNIFICATIO N AN D INSURANC E

58. The United States does not assume any liabilit y by

entering into this agreement or by virtue of any designation of

D&RG as EPA's authorized representative under Section 104(e) of

CERCLA, 42 U.S.C . § 9604 (e) . D&RG shall indemnify , save and

hold harmless the United States and its officials , agents,

employees, contractors, subcontractors, or representatives for or

from any and all claims or causes of action arising from, or on

account of, acts or omissions of D&RG , its officers , directors,
45

employees, agents, contractors, subcontractors, and any persons

acting on its behal f or under its control, in carrying out

activities pursuant to this Consent Decree, including, but not

limited to, any claims arising from any designatio n of D&RG as

EPA' s authorized representative under Section 104(e ) of CERCLA. Further, D&RG agrees to pay the United State s all costs it incurs

including, but not limited to, attorneys fees and other expenses

of litigatio n and settlement arising from, or on account of,

claims made against the United State s based on acts or omissions

of D&RG , it s officers , directors, employees , agents , contractors,

subcontractors, and any persons acting on its behal f or under its

control, in carrying out activities pursuant to this Consent

Decree. The United States shall not be held out as a party to

any contract entered into by or on behal f of D&RG in carrying out

activities pursuant to this Consent Decree. Neither D&RG nor any

such contractor shall be considered an agent of the United

States .

5 9. D&RG waives all claims against the United States for

damages or reimbursement or for set-of f of any payments made or

to be made to the United State s arising from or on account of any

contract, agreement, or arrangement between D&RG and any person

for performance of Work on or relatin g to the Work Area,

including, but not limited to, claims on account of construction

delays. In addition , D&RG shall indemnif y and hold harmless the

United States with respect to any and all claims for damages or

reimbursement arising from or on account of any contract,
46

agreement, or arrangement between D&RG and any person for

performance of Work on or relatin g to the Work Area, including,

but not limited to, claims on account of construction delays.

60. No later than 15 days before commencing any on-site

Work, D&RG shall secure, and shall maintain until the firs t

anniversary of EPA' s Certificatio n of Completio n of the Remedial

Action pursuant to Paragraph 50.b. of Sectio n XV (Certificatio n

of Completion ) comprehensive general liabilit y insurance and

automobile insurance with limit s of $2,000,000.00 (two millio n

dollars) , combined single limit naming as additional insured the

United States. In addition , for the duration of this Consent

Decree, D&RG shall satisfy , or shal l ensure that its contractors

or subcontractors satisfy , all applicabl e laws and regulations

regarding the provision of worker' s compensation insurance for

all persons performin g the Work on behal f of D&RG in furtherance

of this Consent Decree. Prior to commencement of the Work under

this Consent Decree, D&RG shall provide to EPA certificates of

such insurance and a copy of each insurance policy . D&RG shall

resubmit such certificates and copies of policies each year on

t he anniversary of the effective date of this Consent Decree. If

D&RG demonstrates by evidence satisfactor y to EPA that any

contractor or subcontractor maintains insurance equivalent to

that described above, or insurance covering the same risks but in

a lesser amount, then, with respect to that contractor or

subcontractor, D&RG need provide only that portion of the
47

insurance described above which is not maintained by the

contractor or subcontractor.

XIX . FORCE MAJEUR E

61. "Force majeure," for purposes of this Consent Decree,

is defined as any event arising from causes beyond the control of

D&RG or of any entity controlled by D&RG, including, but not

limited to, its contractors and subcontractors, that delays or

prevents the performance of any obligatio n under this Consent

Decree despite D&RG' s best effort s to fulfil l the obligation .

T he requirement that D&RG exercise "best effort s to fulfil l the

obligation" includes using best effort s to anticipate any

potential force majeure event and best effort s to address the

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

occurring and (2) followin g the potential force majeure event,

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

"Force Majeure" does not include financial inabilit y to complete

the Work or a failure to attain the Performance Standards .

62. If any event occurs or has occurred that may delay the

performance of any obligation under this Consent Decree, whether

or not caused by a force majeure event, D&RG shall notif y orally

EPA' s Project Coordinator or, i n hi s or her absence, EPA' s

Alternate Project Coordinator or, in the event both of EPA's

designated representatives are unavailable, the Director of the

Hazardous Waste Management Division, EPA Region VIII, within 48

hours of when D&RG firs t knew or should have known that the event

might cause a delay. Withi n five days thereafter, D&RG shall
48

provide in writing to EPA an explanatio n and description of the

reasons for the delay ; the anticipated duration of the delay ; all

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

schedule for implementation of any measures to be taken to

prevent or mitigate the dela y or the effec t of the delay ; D&RG's

rationale for attributing such dela y to a force majeure event if

it intends to assert such a claim; and a statement as to whether,

in the opinion of D&RG , such event may cause or contribute to an

endangerment to public health, welfare or the environment. D&RG

shall include with any notice all available documentation

supporting its claim that the delay was attributable to a force

majeure. Failure to comply with the above requirements shall

preclude D&RG from asserting any claim of force majeure for that

event. D&RG shall be deemed to have notice of any circumstance

of which its contractors or subcontractors had or should have had

notice.

63. If EPA agrees that the dela y or anticipated delay is

attributable to a force majeure event, the time for performance

of the obligations under this Consent Decree that are affected by

the force majeure event will be extended by EPA for such time as

is necessary to complete those obligations . An extension of the

time for performance of the obligation s affected by the force

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

performance of any other obligation . If EPA does not agree that

the delay or anticipated dela y has been or wil l be caused by a

force majeure event, EPA will notif y D&RG in writing of its
49

decision. If EPA agrees that the delay is attributable to a

force majeure event, EPA will notif y D&RG in writing of the

length of the extension, if any, for performance of the

obligations affected by the force majeure event.

6 4. If D&RG elects to invoke the dispute resolution

procedures set forth in Section XX (Disput e Resolution) , it shall

do so no later than 15 days after receipt of EPA's notice. In

any such proceeding, D&RG shall have the burden of demonstrating

by a preponderance of the evidence that the dela y or anticipated

dela y has been or wil l be caused by a force majeure event, that

the duration of the delay or the extension sought was or will be

warranted under the circumstances, that best effort s were

exercised to avoid and mitigate the effect s of the delay , and

that D&RG complied with the requirements of Paragraphs 61 and 62,

above. If D&RG carries this burden, the dela y at issue shall be

deemed not to be a violation by D&RG of the affected obligation

of this Consent Decree identified to EPA and the Court.

X X . DISPUT E RESOLUTION

6 5. Unles s otherwise expressly provided for in this

Consent Decree, the dispute resolution procedures of this Section

shall be the exclusive mechanism to resolve disputes arising from

or with respect to any EPA decision under this Consent Decree.

However, the procedures set forth in this Section shall not appl y

t o: (1) EPA' s selection of the ROD(s ) for the Work Area, an d (2)

actions by the United States to enforce obligation s of D&RG that

have not been disputed in accordance with this Section.
50

66. Any dispute which arises under or with respect to this

Consent Decree shall in the firs t instance be the subject of

informal negotiations between the parties to the dispute. The

period for informal negotiations shall not exceed 20 days from

the time the dispute arises, unless it is modified by written

agreement of the parties to the dispute. The dispute shall be

considered to have arisen when one party sends the other party a

written Notice of Dispute.

67. a. In the event that the parties cannot resolve a

dispute by informal negotiations under the precedin g Paragraph,

then the positio n advanced by EPA shall be considered binding

unless, within 10 days after the conclusion of the informal

negotiation period, D&RG invokes the formal dispute resolution

procedures of this Section by serving on the United States a

written Statement of Position on the matter in dispute,

including, but not limited to, any factual data, analysis or

opinion supportin g that positio n and any supportin g documentation

relied upon by D&RG . The Statemen t of Position shall specif y

D&RG' s position as to whether formal dispute resolution should

proceed under Paragraph 68 or 69.

b. Withi n fourteen (14 ) days after receipt of D&RG' s

Statement of Position, EPA wil l serve on D&RG its Statement of

Position , including, but not limited to, any factual data,

analysis, or opinion supporting that position and all supporting

documentation relied upon b y EPA. EPA' s Statement of Position
51

shall include a statement as to whether formal dispute resolution

should proceed under Paragraph 68 or 69.

c. If there is disagreement between EPA and D&RG as to

whether dispute resolution should proceed under Paragraph 68 or

6 9, the parties to the dispute shall follo w the procedures set

forth in the paragraph determined by EPA to be applicable .

However, if D&RG ultimatel y appeal s to the Court to resolve the

dispute, the Court shall determine which paragraph is applicabl e

in accordance with the standards of applicabilit y set forth in

Paragraphs 68 and 69.

6 8. Formal dispute resolution for disputes pertainin g to

the selection or adequacy of any response action and all other

disputes that are accorded review on the administrative record

under applicabl e principles of administrative law shall be

conducted pursuant to the procedures set forth in this paragraph.

F or purposes of this paragraph, the adequacy of any response

action includes, without limitation : (1) the adequacy or

appropriatenes s of plans , procedures to implement plans , or any

other items requiring approval by EPA under this Consent Decree;

a nd (2) the adequacy of the performance of response actions taken

pursuant to this Consent Decree. Nothin g in this Consent Decree

shall be construed to allow any dispute by D&RG regarding the

validit y of the ROD'S provisions.

a. An administrative record of the dispute shall be

maintained by EPA and shall contain all statements of position,

including supportin g documentation, submitted pursuant to this
52 t

paragraph. Where appropriate, EPA may allow submission of

supplemental statements of positio n by the parties to the

dispute.

b. The Director of the Waste Management Division, EPA

Region VIII wil l issue a final administrative decision resolving

the dispute based on the administrative record described in

Paragraph 68.a. Thi s decision shall be binding upon D&RG,

subject only to the right to seek judicial review pursuant to

Paragraph 68.c. and d.

c. Any administrative decision made by EPA pursuant

to Paragraph 68.b. shall be reviewable by this Court, provided

that a notice of judicial appeal is filed by D&RG with the Court

and served on all Parties within 20 days of receipt of EPA's

decision. The notice of judicial appeal shall include a

descriptio n of the matter in dispute , the effort s made by the

parties to resolve it, the relief requested, and the schedule, if

any, within which the dispute must be resolved to ensure orderly

implementation of this Consent Decree. The United State s may

fil e a response to D&RG' s notice of judicial appeal .

d. In proceedings on any dispute governed by this

Paragraph, D&RG shall have the burden of demonstrating that the

decision of the Waste Management Division Director is arbitrary

and capricious or otherwise not in accordance with law. Judicial

review of EPA's decision shall be on the administrative record

compiled pursuant to Paragraph 68.a.
53

6 9. Formal dispute resolution for disputes that neither

pertain to the selection or adequacy of any response action nor

are otherwise accorded review on the administrative record under

applicabl e principles of administrative law, shall be governed by

this paragraph.

I. Followin g receipt of D&RG' s Statement of Position

submitted pursuant to Paragraph 67, the Director of the Waste

Management Division, EPA Region VIII, wil l issue a final decision

resolving the dispute. The Waste Management Division Director' s

decision shall be binding on D&R G unless, within 20 days of

receipt of the decision, D&RG file s with the Court and serve on

t he parties a notice of judicial appeal settin g forth the matter

in dispute, the effort s made by the parties to resolve it, the

relief requested, and the schedule, if any, within which the

dispute must be resolved to ensure orderly implementation of the

Consent Decree. The United States may fil e a response to D&RG's

notice of judicial appeal .

I I. Judicial review of any dispute governed by this

paragraph shall be governed by applicabl e provisions of law.

7 0. The invocation of formal dispute resolution procedures

under this Section shall not extend, postpon e or affec t in any

way any obligatio n of D&RG under this Consent Decree not directly

in dispute, unless EPA or the Court agrees otherwise. Stipulated

penalties with respect to the disputed matter shall continue to

accrue but payment shall be stayed pendin g resolution of the

dispute as provided in Paragraph 79. Notwithstandin g the stay of
54

payment, stipulated penalties shal l accrue from the firs t day of

noncompliance with any applicabl e provision of this Consent

Decree. In the event that the D&RG does not prevail on the

disputed issue, stipulated penalties shall be assessed and paid

as provided in Section XXI (Stipulated Penalties) .

XXI . STIPULATE D PENALTIE S

71. D&RG shall be liable for stipulated penalties in the

amounts set forth in Paragraphs 72 and 73 to the United States

f or failure to comply with the requirements of this Consent

Decree specified below, unless excused under Sectio n XIX (Force

Majeure) . "Compliance" by D&RG shall include completion of the

activities under this Consent Decree or any work pla n or other

pla n approved under this Consent Decree identified below in

accordance with all applicabl e requirements of law, this Consent

Decree, the SOW , and any plan s or other documents approved by EPA

pursuant to this Consent Decree and within the specified time

schedules established by and approved under this Consent Decree.

72. a. The followin g stipulated penalties shall be

payable per violation per day to the United State s for any

noncompliance identified in Paragraph 72.b:

Penalty Per Violatio n Period of Noncompliance Per Day___________

$1,000 1st through 15th day

$2,000 16th day and beyond

b. Violation s

i. Failure to begin or complete remedial design

activities on the dates specified in the Remedial Design Work Plan.
55

ii. Failure to begin or complete remedial activities on

t he dates specified in the Remedial Actio n Work Plan .

iii. Failure to pay response costs as described in Section XVII (Reimbursement of Past Response Costs) .

i v. Failure to follo w the approved Standard Operating Procedures (SOP ) in samplin g and reportin g samplin g data.

v. Failure to perform additional or further work as

provided in Section VII (Additional Response Actions ) or Section VIII (EPA Periodic Review).

vi. Failure to maintain insurance, or to carry worker' s

compensation coverage as provided in Sectio n XVIII (Indemnificatio n and Insurance) .

vii. Failure to provide access to the United State s and its

authorized representatives to propert y owned or controlled

by D&RG .

7 3. The followin g Tier II stipulated penalties shall be

payable per violation per day to the United States:

Penalty Per Violatio n Period of Noncompliance Per Day___________

$ 750.00 1st through 15th day

$ 1,000 16th day and beyond

b. Violation s

i. Failure to submit a timel y or adequate Feasibilit y Stud y Work Plan or Feasibilit y Stud y

ii. Failure to submit a timel y or adequate Remedial Design Work Plan or Remedial Action Work Plan

iii. Failure to submit timel y or adequate deliverables as

specified in the Remedial Design Work Plan and Remedial Action Work Plan.

iv. Failure to maintain financial security as provided in Section XIV (Assurance of Abilit y to Complete Work) .

74. In the event that EPA assumes performance of a portion

or all of the Work pursuant to Paragraph 87 of Section XXII

(Covenants Not to Sue by Plaintiff) , D&RG shall be liable for a

stipulated penalt y in the amount of $125,000.
56

75. All penalties shall begin to accrue on the day after

the complete performance is due or the day a violatio n occurs,

and shall continue to accrue through the final day of the

correction of the noncompliance or completion of the activity.

Nothin g herein shall prevent the simultaneous accrual of separate

penalties for separate violations of this Consent Decree.

7 6. Followin g EPA' s determination that D&RG has failed to

comply with a requirement of this Consent Decree, EPA may give

D&RG written notificatio n of the same and describe the

noncompliance. EPA may send D&RG a written demand for the

payment of the penalties . However, penalties shall accrue as

provided in the preceding paragraph regardless of whether EPA has

notified D&RG of a violation.

77. All penalties owed to the United States under this

section shall be due and payable within 30 days of D&RG's receipt

from EPA of a demand for payment of the penalties , unless D&RG

invokes the Dispute Resolution procedures under Sectio n XX

(Dispute Resolution). All payments under this Sectio n shall be

paid by certified check made payable to "EPA Hazardous Substances

Superfund," shall be mailed to:

Mello n Bank E PA Region VIII Attn : Superfun d Accountin g P.O. BOX 360859M Pittsburgh, PA 15251

and shall reference CERCLA Number 08-29 and DOJ Case Number 90-

11-3-138. Copies of check(s) paid pursuant to this Section , and

any accompanying transmittal letter(s) , shall be sent to the
57

United States as provided in Sectio n XXVII (Notice s and

Submissions) .

78. The payment of penalties shall not alter in any way

D&RG' s obligatio n to complete the performance of the Work

required under this Consent Decree.

79. Penalties shall continue to accrue as provided in

Paragraph 75 during any dispute resolution period, but need not

be paid until the following:

a. If the dispute is resolved by agreement or by a

decision of EPA that is not appealed to this Court, accrued

penalties determined to be owing shall be paid to EPA within 30

days of the agreement or the receipt of EPA's decision or order;

b. If the dispute is appealed to this Court and the

United State s prevails in whole or in part , D&RG shall pay all

accrued penalties determined by the Court to be owed to EPA

within 60 days of receipt of the Court' s decision or order,

except as provided in Subparagraph c below;

c. If the District Court' s decision is appealed by

any Party, D&RG shall pay all accrued penalties determined by the

District Court to be owing to the United State s into an interestbearing escrow account within 60 days of receipt of the Court' s

decision or order. Penalties shal l be paid into this account as

they continue to accrue, at least every 60 days. Withi n 30 days

of receipt of the final appellat e court decision, the escrow

agent shall pay the balance of the account to EPA or to D&RG to

the extent that it prevails.
58 *•

8 0. a. If D&RG fail s to pay stipulated penalties when

due, the United States may institute proceedings to collect the

penalties, as well as interest. D&RG shall pay interest on the

unpaid balance, which shall begin to accrue on the date of demand

made pursuant to Paragraph 77 at the rate established pursuant to

Section 107(a ) Of CERCLA, 42 U.S.C . § 9607.

b. Nothin g in this Consent Decree shall be construed

as prohibiting, altering, or in any way limitin g the abilit y of

the United State s to seek any other remedies or sanctions

available by virtue of D&RG's violatio n of this Decree or of the

statutes and regulations upon which it is based, including, but

n ot limited to, penalties pursuant to Sectio n 122(1 ) of CERCLA.

42 U.S.C . § 9622 (1) .

81. No payments made under this Sectio n shall be tax

deductible for Federal or Stat e tax purposes.

XXII . COVENANT S NOT T O SU E BY PLAINTIF F

82. In consideration of the Work that wil l be performed

and the payments that will be made by D&RG under the terms of

this Consent Decree, and except as provided in Paragraphs 83, 84,

and 86 of this Section , the United States covenants not to sue or

to take administrative action against D&RG pursuant to Sections

1 06 and 107(a ) Of CERCLA, 42 U.S.C . §§ 9606 and 9607(a) , and

Section 7003 Of RCRA, 42 U.S.C . § 6973, as follows:

a. For all costs related to the Site , except the

Future Response Costs that D&RG is obligated to pay pursuant to

Paragraph 55, subject to the exclusions pursuant to Paragraphs
59

83, 84, and 86 of this Section , and for all areas of the Sit e not

included in the Work Area, these covenants shall take effec t upon

satisfactio n of the D&RG payment required by Paragraph 54 of

Section XVII. (Reimbursement of Response Costs. )

b. For D&RG's liabilit y to perform response actions

within the Work Area, and/or reimburse the United States for the

costs of overseeing and/or performin g such response actions,

these covenants not to sue shal l take effect , subject to the

exclusions pursuant to Paragraphs 83, 84, and 86 of this Section ,

upon Certificatio n of Completio n for the relevant OU by EPA

pursuant to Sectio n XV (Certificatio n of Completion) .

8 3. United States 7 Pre-certificatio n reservations.

Notwithstandin g any other provision of this Consent Decree, the

United State s reserves, and this Consent Decree is without

prejudice to, the right to institute proceedings in this action

or in a new action, or to issue an administrative order seeking

to compel D&RG (1) to perform further response actions relating

to the relevant OU or (2) to reimburse the United States for

additional costs of response action(s ) relating to the relevant

OU if, prior to certificatio n of completio n of the OU within

which such response action(s ) occurred or response costs were

incurred:

( i) conditions at the relevant OU, previously unknown

to EPA, are discovered, or

(ii ) information, previously unknown to EPA, is

received, in whole 'or in part ,
60

and these previously unknown conditions or informatio n together

with any other relevant informatio n indicates that the Remedial

Action at the OU is not protective of human health or the

environment.

84. United States Post-certificatio n reservations.

Notwithstandin g any other provision of this Consent Decree, the

United States reserves, and this Consent Decree is without

prejudice to, the right to institute proceedings in this action

or in a new action, or to issue an administrative order seeking

to compel D&RG (1) to perform further response actions relatin g

to the relevant OU or (2) to reimburse the United States for

additional costs of response action(s ) relatin g to the relevant

OU if, subsequent to certificatio n of completio n of the OU within

which such response action(s ) occurred or response costs were

incurred:

( i) conditions at the relevant OU, previously unknown

to EPA, are discovered, or

(ii) information , previousl y unknown to EPA, is

received, in whole or in part ,

and these previously unknown conditions or this information

together with other relevant informatio n indicate that the

Remedial Action at the relevant OU is not protective of human

health or the environment.

85. For purposes of Paragraph 83, the informatio n and the

conditions known to EPA shall include only that information and

those conditions set forth in the Record of Decision (s) for the
61

relevant OU and the administrative record supportin g the Record

of Decision(s) . For purposes of Paragraph 84, the informatio n

and the conditions known to EPA shal l include only that

information and those conditions set forth in the Record of

Decision(s) , the administrative record supportin g the Record of

Decision(s) , and any informatio n received by EPA pursuant to the

requirements of this Consent Decree prior to Certificatio n of

Completion of the relevant OU.

86. General reservations of rights.

a. The covenants not to sue set forth above do not

pertain to any matters other than those expressl y specified in

Paragraph 82. Notwithstandin g any other provisions of this

Consent Decree, the United State s reserves, and this Consent

Decree is without prejudic e to, all right s against D&RG with

respect to all other matters, includin g but not limited to, the

following:

( 1) claims based on a failur e by D&RG to meet a

requirement of this Consent Decree;

( 2) liabilit y arising from the past , present, or

future disposal , release, or threat of release of Waste

Material s outside of the Site:

( 3) liabilit y for damages for injur y to, destruction

of, or loss of natural resources, or the costs of

assessment thereof;

( 4) criminal liability ;
62

( 5) liabilit y for violations of federal or state law

which occur during or after implementatio n of the Work;

( 6) liabilit y for response actions, i f any, to

address contamination of groundwater both underlyin g and

resultin g from the three slag pile s owned by D&RG , the

Railroad easement owned by D&RG, and the railyard owned by

D&RG within the Site; and,

( 7) liabilit y at the Sit e resultin g from the release

of Waste Material from the Work Area afte r the effective

date of this decree.

8 7. In the event EPA determines that D&RG failed to

implement any provisions of the Work in an adequate or timely

manner, EPA may perform any and all portions of the Work as EPA

determines necessary. D&RG may invoke the procedures set forth

i n Sectio n XX (Dispute Resolution) to dispute EPA' s determination

that D&RG failed to implement a provision of the Work in an

adequate or timely manner as arbitrary and capricious or

otherwise not in accordance with law. Such dispute shall be

resolved on the administrative record. Costs not inconsistent

with the NCP , incurred by the United State s in performin g the

Work pursuant to this paragraph shall be considered Future

Response Costs that D&RG shal l pay pursuant to Sectio n XVII

(Reimbursement of Response Costs) .

88. Notwithstandin g any other provision of this Consent

Decree, the United States shall retain all authority and reserve
63

all rights to take any and all response actions authorized by

law.

XXIII . COVENANT S B Y D&RG

89. D&RG hereby covenants not to sue and agrees not to

assert any claims or causes of action against the United States

with respect to the Sit e or this Consent Decree, including, but

not limited to, any direct or indirect claim for reimbursement

from the Hazardous Substance Superfun d (established pursuant to

t he Internal Revenue Code, 26 U.S.C . § 9507 ) through CERCLA

Sections 106(b)(2) , 111, 112, 113 42 U.S.C . § § 9606 (b) (2) ,

9611, 9612, or 9613, or any other provision of law, any claim

against the United States , includin g any department , agency or

instrumentality of the United State s under CERCLA Sections 107 or

113, 42 U.S.C . § 9607 or 9613 related to the Site , or any claims

arising out of response activities at the Site . However, D&RG

reserves, and this Consent Decree is without prejudic e to,

actions against the United State s based on negligent actions

taken directl y by the United State s (not includin g oversight or

approval of D&RG plan s or activities) that are brought pursuant

to any statute other than CERCLA and for which the waiver of

sovereign immunity is found in a statute other than CERCLA. Nothin g in this Consent Decree shall be deemed to constitute

preauthorization of a claim within the meaning of Section 111 of

CERCLA, 42 U.S.C . § 9611, or 40 C.F.R . § 300.700(d) .

XXIV . EFFEC T O F SETTLEMENT ; CONTRIBUTION PROTECTION
64

90. Nothin g in this Consent Decree shal l be construed to

create any rights in, or grant any cause of action to, any person

not a party to this Consent Decree. The precedin g sentence shall

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

not a signatory to this decree may have under applicabl e law.

Each of the Parties expressl y reserves 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 Sit e against any person not a party

hereto.

9 1. With regard to claims for contribution against D&RG

for matters addressed in this Consent Decree, the Parties hereto

agree that D&RG is entitled to such protection from contribution

actions or claims as is provided by CERCLA Sectio n 113(f)(2) , 42

U.S.C . § 9613(f)(2) .

92. D&RG agrees that with respect to any suit or claim for

contribution brought by it for matters related to this Consent

Decree it will notif y the United State s in writing no later than

60 days prior to the initiation of such suit or claim.

93. D&RG also agrees that with respect to any suit or

claim for contribution brought against it for matters related to

this Consent Decree it wil l notif y in writing the United States

within 10 days of service of the complain t on D&RG . In addition ,

D&RG shall notif y the United State s within 10 days of service or
65

receipt of any Motion for Summary Judgment and within 10 days of

receipt of any order from a court setting a case for trial.

94. In any subsequent administrative or judicial

proceeding initiated by the United State s for injunctive relief ,

recovery of response costs, or other appropriate relief relatin g

to the Site , D&RG shall not assert, and may not maintain, any

defense or claim based upon the principle s of waiver, res

judicata. collateral estoppel , issue preclusion , claim-splitting,

or other defense s based upon any contention that the claims

raised by the United State s in the subsequent proceedin g were or

should have been brought in the instant case; provided, however,

that nothing in this paragraph affect s the enforceabilit y of the

covenants not to sue set forth in Sectio n XXII (Covenants Not to

S ue by Plaintiff) .

XXV . ACCES S T O INFORMATION

9 5. Subjec t to Paragraph 96.b. of this Section , D&RG shall

provide to EPA, upon request, copies of all documents and

information within its possession or control or that of its

contractors or agents relatin g to activities at the Sit e or to

the implementation of this Consent Decree, including, but not

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

manifests , trucking logs , receipts , reports, sample traffi c

routing, correspondence, or other documents or information

related to the Work. D&RG shall also make available to EPA, for

purposes of investigation, informatio n gathering, or testimony,
66

its employees, agents, or representatives with knowledge of

relevant fact s concerning the performance of the Work.

96. a. D&RG may assert business confidentialit y claims

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

Plaintif f under this Consent Decree to the extent permitted by

a nd in accordance with Section 104(e)(7 ) of CERCLA, 42 U.S.C . §

9604(e)(7) , and 40 C.F.R . § 2.203(b) . Documents or information

determined to be confidential by EPA wil l be afforded the

protection specified in 40 C.F.R . Part 2, Subpart B. If no claim

of confidentialit y accompanies documents or informatio n when they

are submitted to EPA, or if EPA has notified D&RG that the

documents or informatio n are not confidential under the standards

of Section 104(e)(7 ) of CERCLA , 42 U.S.C . § 9604 (c ) (7) , the

public may be given access to such documents or informatio n

without further notice to D&RG .

b. D&RG may assert that certain documents, records

• and other informatio n are privileged under the attorney-client

privilege or any other privilege recognized by federal law. If

D&RG asserts such a privilege in lieu of providin g documents, it

shall provide Plaintif f with the following: (1) the titl e of the

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

record, or information ; (3) the name and titl e of the author of

the document, record, or information ; (4) the name and title of

each addressee and recipient; (5) a descriptio n of the contents

of the document, record, or information : and (6) the privilege

asserted by D&RG . However, no documents, reports or other
67

information created or generated pursuant to the requirements of

the Consent Decree shall be withheld on the grounds that they are

privileged.

97. No claim of confidentialit y shal l be made with respect

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

analytical , monitoring, hydrogeologic, scientific , chemical, or

engineering data, or any other documents or informatio n

evidencing conditions at or around the Site .

XXVI . RETENTION OF RECORDS

9 8. Unti l 10 years after D&RG' s receipt o f EPA' s

notificatio n pursuant to Paragraph 50.b of Sectio n XV

(Certificatio n of Completion) , D&RG shall preserve and retain all

records and documents now in its possession or control or which

come into its possession or control that relate in any manner to

the performance of the Work or liabilit y of any person for

response actions conducted and to be conducted at the Work Area,

regardless of any corporate retention polic y to the contrary.

Until 10 years after D&RG' s receipt of EPA' s notificatio n

pursuant to Paragraph 50.b of Sectio n XV (Certificatio n of

Completion) , D&RG shall also instruct its contractors and agents

to preserve all documents, records, and informatio n of whatever

kind, nature or description relatin g to the performance of the

Work.

99. At the conclusion of this document retention period,

D&RG shall notif y the United State s at least 90 days prior to the

destruction of any such records or documents, and, upon request
68 r

by the United States , D&RG shall deliver any such records or

documents to EPA. D&RG may assert that certain documents,

records and other information are privileged under the attorneyclient privilege or any other privilege recognized by federal

law. If D&RG asserts such a privilege, it shall provide

Plaintif f with the following: (1) the title of the document,

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

information ; (3) the name and titl e of the author of the

document, record, or information ; (4) the name and titl e of each

addressee and recipient; (5) a descriptio n of the subject of the

document, record, or information : and (6) the privilege asserted

by D&RG . However, no documents, reports or other informatio n

created or generated pursuant to the requirements of the Consent

Decree shall be withheld on the grounds that they are privileged.

100. D&RG hereby certifie s that it has not altered,

mutilated, discarded, destroyed or otherwise disposed of any

records, documents or other informatio n relatin g to its potential

liabilit y regarding the Sit e since notificatio n of potential

liabilit y by the United States , or the filin g of suit against it

regarding the Sit e and that it has full y complied with any and

a ll EPA requests for informatio n pursuant to Section s 104(e ) and

122(e ) of CERCLA, 42 U.S.C . §§ 9604 (e) and 9622 (e) , and Section

3007 Of RCRA, U.S.C . § 6927.
69

XXVII . NOTICE S AN D SUBMISSION S

101. Whenever, under the terms of this Consent Decree,

written notice is required to be given or a report or other

document is required to be sent by one party to another, it shall

be directed to the individual s at the addresses specified below,

unless those individual s or their successors give notice of a

change to the other parties in writing. All notices and

submissions shall be considered effective upon receipt, unless

otherwise provided. Written notice as specified herein shall

constitute complete satisfactio n of any written notice

requirement of the Consent Decree with respect to the United

States , EPA, an d D&RG , respectively .

As to the United States:

Chief , Environmental Enforcement Section

Environment and Natural Resources Division U.S. Department of Justic e P.O. Box 7611 B en Frankli n Statio n Washington , D.C. 20044 Re: DJ # 90-11-3-138

and

Director, Waste Management Division United States Environmental Protection Agency Region VII I

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

As to EPA:

E PA Remedial Project Manager California Gulch Superfun d Sit e United State s Environmental Protection Agency Region VII I

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

and
70

E PA Assistant Regional Counsel California Gulch Superfun d Site United States Environmental Protection Agency Region VII I

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

As to D&RG ;

D&RG Project Coordinator Kathlee n Snead Law Department P.O. Box 5482 Denver, CO 80217

XXVIII . EFFECTIV E DAT E

102. The effective date of this Consent Decree shall be

the date upon which this Consent Decree is entered by the Court,

except as otherwise provided herein.

XXIX . RETENTION O F JURISDICTION

103. Thi s Court retains jurisdictio n over both the subject

matter of this Consent Decree and D&RG for the duration of the

performance of the terms and provisions of this Consent Decree

for the purpose of enabling any of the Parties to appl y to the

Court at any time for such further order, direction, and relief

as may be necessary or appropriate for the construction or

modificatio n of this Consent Decree, or to effectuat e or enforce

compliance with its terms, or to resolve disputes in accordance

with Section XX (Dispute Resolution) hereof.

XXX . APPENDICE S

104. The followin g appendices are attached to and

incorporated into this Consent Decree:

"Appendix A" is the SOW.

"Appendix B" is the Sit e map.
71 ,

XXXI . COMMUNIT Y RELATION S

105. D&RG shall propose to EPA its participatio n in the

community relations pla n to be developed by EPA. EPA wil l

determine the appropriate role for D&RG under the Plan . D&RG

shall also cooperate with EPA in providin g informatio n regarding

t he Work to the public. As requested by EPA, D&RG shal l

participate in the preparatio n of such informatio n for

dissemination to the public and in public meetings which may be

held or sponsored by EPA to explai n activities at or relatin g to

t he Work Area.

XXXII . MODIFICATIO N

106. Schedules specified in this Consent Decree for

completion of the Work may be modified by agreement of EPA and

D&RG . All such modification s shall be made in writing.

107. No material modification s shall be made to the SOW

without written notificatio n to and written approval of the

United States , D&RG , and the Court. Prior to providin g its

approval to any modification , the United State s wil l provide the

State with a reasonable opportunit y to review and comment on the

proposed modification . Modification s to the SOW that do not

materiall y alter that document may be made by written agreement

between EPA, after providin g the State with a reasonable

opportunity to review and comment on the proposed modification ,

a nd D&RG .
72

108. Nothin g in this Decree shall be deemed to alter the

Court' s power to enforce, supervise or approve modification s to

this Consent Decree.

XXXIII . LODGIN G AN D OPPORTUNIT Y FO R PUBLI C COMMENT

109. Thi s Consent Decree shall be lodged with the Court

f or a period of not less than thirty (30 ) days for public notice

a nd comment in accordance with Sectio n 122(d)(2 ) of CERCLA, 42

U.S.C . § 9622(d)(2) , an d 28 C.F.R . § 50.7. The United States

reserves the right to withdraw or withhold its consent if the

comments regarding the Consent Decree disclose fact s or

considerations which indicate that the Consent Decree is

inappropriate, improper, or inadequate. D&RG hereby consents to

the entry of this Consent Decree without further notice.

110. If for any reason the Court should declin e to approve

this Consent Decree in the form presented, this agreement is

voidable at the sole discretion of any party and the terms of the

agreement may not be used as evidence in any litigatio n between

the Parties.

XXXIV . SIGNATORIES/SERVIC E

111. Each undersigned representative of D&RG , the United

States and the Attorney General for Environment and Natural

Resources of the Department of Justic e certifie s that he or she

is full y authorized to enter into the terms and conditions of

this Consent Decree and to execute and legall y bind such party to

this document.
73

112. D&RG hereby agrees not to oppose entry of this

Consent Decree by this Court or to challenge any provision of

this Consent Decree unless the United State s has notified D&RG in

writing that it no longer support s entry of the Consent Decree.

113. D&RG shall identify , on the attached signature page,

the name, address and telephon e number of an agent who is

authorized to accept service of process by mail on behal f of that

party with respect to all matters arising under or relatin g to

this Consent Decree. D&RG hereby agrees to accept service in

that manner and to waive the formal service requirements set

forth in Rule 4 of the Federal Rules of Civi l Procedure and any

applicabl e local rules of this Court, including, but not limited

to, service of a summons.

SO ORDERED THIS / V DAY OF

Lted Stares Distri
74

T HE UNDERSIGNED PARTIES enter into this Consent Decree in the

matter of United State s v.

 Apache

 ***& & ttoerals °°-*H California Gulch

to the _______ Superfun d Site

F OR TH E UNITED ST OF AMERICA

Actin g ssistarf t Attorney General Environment and Natural Resources Division U.S . Department of Justice P.O. Box 7611 Washington , D.C. 20044

JEREL L. ELLINGTON LESLI E A . HULS E TRIA L ATTORNEY S

Environmental Enforcement Section

Environment and Natural Resources Division Department of Justice Box 7611

20044

U.S . P.O. Washington, D.C.

JAMES R. ALLISON Interim United States Attorney District of Colorado

By: •// WILLIAM G . PHAR O Assistant United States Attorney District of Colorado U.S . Department of Justice

1961 Stout Street , llth Floor Denver, CO 80294
STEyEN A. HERMAN Assistan t Administrator for Enforcement U.S. Environmental Protection Agency

4 01 M Street , S.W . Washington , D.C. 20460

OF COUNSEL :

JOANNE E. LOERCHER Offic e of Enforcement U.S. Environmental Protection Agency

4 01 M Street , S.W . Washington , D.C. 20460
76

JACK.tf . MCGRA W Actin g Regional Administrator U.S./Environmental Protection Agency Region VII I

999 18th Street Suite Denver/,/CO 80202

THOMA S A . SP I Regional Cound _ U.S . Environmental Protection Agency Region VII I

999 18th Street Suite 500 Denver, CO 80202

JOANNE E. LOERCHER Actin g Assistan t Regional Counsel U.S . Environmental Protection Agency Region VII I

999 18th Street Suite 500 Denver, CO 80202
76

JACK W. MCGRAW Actin g Regional Administrator U.S . Environmental Protection Agency Region VII I

999 18th Street Suite 500 Denver, CO 80202

THOMA S A . SPEICHE R Regional Counsel U.S . Environmental Protection Agency Region VII I

999 18th Street Suite 500 Denver, CO 80202

/fOANNE E. tOERCHER Acting Assistant Regional Counsel U.S . Environmental Protection Agency Region VII I

999 18th Street Suite 500 Denver, CO 80202
77

OF COUNSEL :

CHARLOTT E L. NEITZEL, Esq. Holme Robert & Owen LLC

1700 Lincoln , Suite 4100 Denver, CO 80203

F OR DENVER AND RIO GRANDE WESTERN RAILROAD, COMPANY,^JNC .

>ert F. Starzel Vice Chairman

Agent Authorized to Accept Service on Behal f of Abovesigned Party:

Name Kathlee n M. Snead :

Title :

Address:

General Attorney

1515 Arapahoe, Suit e 986 Denver, CO 80202

Tel . Number: (303 ) 634-2332
IN TH E UNITED STATES DISTRICT COURT

F OR THE DISTRICT OF COLORADO JUDG E JIM R. CARRIGAN

CERTIFICAT E OF MAILING

I certif y that I mailed a true and correct copy of the Order

signed by Judge Carrigan to:

Jerel Ellington , Esq. Assistan t Attorney General U.S . Department of Justic e

9 99 18th St. #501 Denver, CO 80202

Thomas Nichols , Esq.

370 17th St. #4700 Denver, CO 80202

Elizabeth Temkin , Esq.

1225 17th St. #2300 Denver, CO 80202

Suzanne Bohan Richard Greengard, Esq. US Environmental Protection Agency 400 S. Colorado Blvd. #700

999 18th St. #500 Denver, CO 80222 Denver, CO 80202-2413

Nanc y Mangone, Esq.

EPA

401 M Street SW Washington , DC 20460

Margaret Harrington , Esq.

P.O. Box 23986 Washington , DC 20026-3986

Glen n Tiedt , Esq.

Solicitor' s Offic e P.O. Box 25007 Denver, CO 80225

Stanle y Thompso n Registered Agen t for Apache

13131 W. Cedar Dr. Lakewood, CO 80228

Peter Cosgriff , Esq.

P.O. Box 11 Leadville , CO 80461

Emil Gimeno Agen t for C&H Development

8295 Ralsto n Rd.#221 Arvada, CO 80002
Casey Sphall , Esq. Ass' t Attorney General CERCLA Litigatio n Section

1525 Sherman St . 5th Fl Denver, CO 80203

Earl Madsen , Esq.

1717 Washingto n Ave. Golden , CO 80401

Christopher Lane, Esq.

6 33 17th St. #2900 Denver, CO 80202

Charlotte Neitzel , Esq. Holm e Roberts & Owen

1700 Lincol n #4100 Denver, CO 80203

Keith Crouch, Esq.

303 E. Seventeenth Ave. Denver, CO 80203

Joh n Shepherd, Esq. Hollan d & Hart P.O. Box 8749 Denver, CO 80201

Matthew Skeen , Esq.

1700 Lincol n St. #3050 Denver, CO 80203

Richard Dana, Esq.

1601 Blake St. #400 Denver, CO 80202-1328

Richard J. Bernick, Esq.

6 00 17th St. Suite 1700N Denver, CO 80202

J.Nichola s McKeever, Esq.

5251 DTC Parkway

Englewood, CO 80111

Robert Murray, Esq. P.O. Box 756 Golden , CO 80402-0756

Nei l Reynolds , Esq.

P.O. Box 574 Leadville , CO 80461

Thomas D. Smart , Esq.

1700 Broadway #1920 Denver, CO 80290-1901

Willia m Pharo, Esq. Assistan t U.S . Attorne y

James Engelking, Esq.

6 21 Seventeenth St. #2300 Denver, CO 80293

Deput y Clerk

Dated: December 15, 1993

Re: 83-C-2388
APPENDI X A
APPENDIX A

STATEMENT OF WORK CALIFORNIA GULCH SUPERFUN D SIT E IMPLEMENTATION BY THE DENVER AND RIO GRANDE WESTERN RAILROAD

1.0 Introduction

T he California Gulch Superfun d Site ("the Site"), located near Leadville, Colorado, is impacted by historical mining operations. Mill tailings (the fine-grained

rock debris remaining after millin g and separation has removed the metal as

concentrates from the ore), slag (mineralized by-product of smelting) and waste

rock piles (mine development rock and low grade ore removed to gain access to an

ore body and often deposited near adits and shaf t openings) are found within the Site. Some of the constituents, also known as heavy metals, found in mill tailings ,

slag and waste rock are hazardous substances. In addition, smelters which

previously operated at the Site are a source of heavy metal contamination from

dusts and stack emissions.

T he State of Colorado, EPA and Potentially Responsible Parties (PRPs) have

conducted various studies and investigations to determine the nature and extent of

contamination within the Site. In 1991, a Remedial Investigation/Feasibilit y Stud y (RI/FS) commenced for several areas within the Site includin g mine waste piles ,

tailings disposal areas, surface water, smelter sites, residential area soils and slag

piles. Under previous agreements, D&RG conducted a Remedial Investigation (Rl)

of slag piles , while other parties conducted RIs of sources of contamination at

other areas within the Site. The Draft Rl reports for mine waste piles, tailings

disposal areas, surface water, aquatic ecosystem, terrestrial biology, hydrogeology,

air monitoring, and residential area soils have been submitted to the EPA. Final Zinc and Lead Slag Pile Rl Reports have been submitted by D&RG. EPA conducted

a Screenin g Feasibility Stud y ("SFS") for the site to initiate the process of

determining the remedial actions that could occur at the Site. The Final SFS

provides the range of remedial alternatives that will undergo detailed examination

in the Feasibilit y Studies.

2.0 PURPOSE

T he Consent Decree ("the CD") entered into by the United States of America

on behalf of the Administrator of the United States Environmental Protection Agency ("EPA") and the Denver and Rio Grande Western Railroad ("D&RG")

provides for the environmental cleanup of hazardous substances by D&RG in the
Operable Unit (OU) covered by the CD. Thi s Statement of Work ("SOW") sets

forth the processes and parameters under which D&RG will implement the work as

set forth in the CD. Under the CD, D&RG has committed to address certain

potential sources of contamination in specific areas within the Site. Specifically , D&RG shall complete the remedial work necessary for final remedial action

decisions to be made by EPA in a Record of Decision ("ROD") for OU3. D&RG is

responsible for completing remedial activities pertaining to OU3. Pursuant to other CDs or orders, D&RG may be obligated to perform certain remedial actions relating

to that portion of ground water that is specificall y reserved under the CD. During

t he development of the FS for the OUs outlined above, D&RG shall coordinate

effort s with all appropriate federal , state, local officials , and other PRPs at the Site

to ensure that all considerations necessary for a thorough analysis of the RA alternatives are addressed.

3.0 DESCRIPTION OF WORK TO BE PERFORMED

Potential sources of contamination that will by addressed by D&RG in Operable Unit 3 (OU3) consist of three slag piles owned by D&RG (Arkansas Valley , LaPlata and Harrison Street) ; the D&RG railroad easement from the sign

that indicates "end of the track" to the raiiyard, the D&RG-owned portion of the

railyard; and the property adjacent to the Harrison Street slag pile on which the Harrison Street Reduction Works was formerly located as described below in Section 3.1. In addition to these potential sources of contamination, D&RG will

conduct a feasibility study on the fine fraction of slag for certain slag piles that are

not owned by D&RG . Any remedial activities required beyond the feasibilit y study

phase for the pile s not owned by D&RG will not be performed by D&RG. Followin g

is a description of each area of D&RG's responsibility and the extent of work to be

performed.

3 .1 SLAG PILES

D&RG will perform a feasibilit y study for remediation of the followin g slag

piles within OU3: the Arkansas Valle y Slag Piles, LaPlata Pile, Harrison Street Pile,

t he Evans Gulch Piles (excluding the Elgin Smelter Piles), and the Georgia Gulch Pile. EPA's primary concern is the fin e fraction of stockpiled slag, i.e., less than

1/4 inch particle size, as a human health exposure pathway. Therefore, the work

needed is a feasibilit y study which is focused on eliminating potential exposure

from the stockpiled fines at the Arkansas Valley (AV), LaPlata, Harrison Street, Evans Gulch, and Georgia Gulch slag pile s through the transport pathway indicated

as viable in the Rl Report. Remedial alternatives for evaluation in the FS for the

fines (i.e, fine fraction of slag) shall be the alternatives retained in the Final Site- wide Screening Feasibility Study (SFS) and evaluation will involve the results of EPA' s baseline risk assessments. EPA' s fate an d transport model for surface water

and sediment and other pertinent Rl reports may be considered if necessary in the
evaluation of alternatives. EPA will prepare the ROD for OU3 addressing all

sources of potential contamination within the OU, however D&RG shall only

implement the remedial action selected in the ROD for the three D&RG owned slag

piles.

If desired, D&RG may commence ballast operations within the site prior to

completion of the feasibility study. D&RG is required to submit to EPA an

operations pla n which wil l be subject to EPA approval prior to initiation of

operations.

D&RG shall conduct a reconnaissance of property adjacent to the Harrison Street slag pile. Thi s property is bounded on the west by the Harrison Street slag

pile, on the east by Starr Ditch, on the south by the slag pile and Starr Ditch, and

on the north by D&RG's property boundary. The reconnaissance shall include a walk-through of the property; an inventory of the materials observed; and a determination of whether children come on to and/or use the property. The results

of the reconnaissance shall be submitted to EPA in a report. If the walk-through

indicates that children come on to and/or use the area, then D&RG may be required

to undertake limited response action to prevent such access. If there is no

evidence that children come on to and/or use the area, no action shall be required

while the property is zoned industrial.

3 .2 RAILROAD EASEMENT

D&RG may, if appropriate and as set forth below, conduct a feasibilit y study

on the portion of fifty foot wide railroad easement owned by D&RG as described

below and that traverses the town of Leadville from the end of track sign, located

on the west side of McWethy Drive, to the railroad yard. A potential pathway of

exposure to human health may exist in this area and must be evaluated. For

purposes of this SOW , the term "easement soils" will refer to the area beginning

twelve feet beyond the center line through the tracks and extending to the edge of

the easement. Therefore, the width of the easement soils is approximately twenty

six feet, including thirteen feet on either side of the initial twelve feet from the

center line. Currently, D&RG represents that the railroad easement is being or has

potential to be used by Leadville , Colorado and Southern and is considered an

active rail line for purposes of this CD. An FS may be developed for the easement

soils, however remedial action will be implemented only after the easement has

been actually or constructively abandoned by D&RG or the LC&S . Since the

easement soils are currently a potential human health exposure pathway for lead

and other heavy metals, further investigation of the easement soils must be

completed in order to address this portion of OU3. A Samplin g and Analysis Plan (SAP) shall be submitted to EPA which

includes a field reconnaissance and either an evaluation of existing data and/or
collection and analysis of soil samples on the easement soils. The field

reconnaissance should identify : 1) areas of access and use by nearby children, and

2) areas of potential exposure, i.e, non-vegetated or bare areas. The SAP may

include the collection and analysis of samples to identif y levels of lead, arsenic,

cadmium, and zinc in these bare areas. The samples if collected should be

collected at a depth of 0 - 6 inches. EPA will use this data to prepare a human

health risk assessment focusin g on the easement soils.

If the risk assessment indicates that remedial action is required to interrupt a human health exposure pathway, D&RG will proceed with a FS as outlined in Section 4 of this SOW. The Final Sitewide Screening Feasibilit y Stud y may be

considered in selecting remedial alternatives for evaluation in the FS. EPA will use

the results of the FS and the baseline human health risk assessment to prepare a ROD for OU3. The ROD will address clean up or control of the contamination

within the easement soils. As long as the right-of-way has not been actually or

constructively abandoned, the ROD will adhere to EPA Region Vlll's policy of not

requiring remediation of active railroad lines and will not require remediation of the

easement. Once actual or constructive abandonment occurs, an appropriate

remedial action will be selected for the easement.

In the event that the risk assessment indicates that access needs to be

limited on paths where any exposure occurs prior to a remedy being implemented, EPA may require an interim action that limits access to these paths which may be

required to occur, to the extent necessary, as soon as possible after the risk is

determined.

3 .3 RAILROAD YARD

T he railroad yard, owned by D&RG in the Poverty Flats area, is currently

zoned as an industrial use area. However, fin e particles of slag may exist on the

property and may pose a risk to human health. Therefore, a field reconnaissance

shall be performed to make an assessment of the railroad yard and prepare an

inventory of the materials present on the site.

In the event that no areas of fin e sized slag, i.e., less than one quarter inch,

fraction of slag, are identified on the railroad yard, further action on the part of D&RG shall not be required to address the yard while it is zoned industrial. If areas

of fin e sized slag are identified, D&RG shall submit a plan to EPA which addresses

consolidation and control or removal and control of these areas. The ROD for OU3

will then include a remedy for the fin e sized slag areas on this portion of the work OU.
4.0 Superfun d Administrative Process

F or purposes of this Site, EPA has established the followin g process since D&RG is settlin g prior to the issuance of a ROD, and agrees as part of this

settlement to investigate and to perform response actions. The limited work that D&RG will perform pursuant to Section 3.0 is unlikely to involve, or require

compliance with, the entirety of this process. For example, while treatability

studies and construction-related documents and requirements are described below,

they are not contemplated in the work that D&RG will be performing. Nevertheless, the Superfun d administrative process is set forth below to achieve

consistency with other pre-ROD settlements at this Site.

4 .1 Feasibilit y Stud y (FS)

D&RG will perform a FS for potential sources of contamination located

within OU3 that adheres to the conditions set forth and described in section 3.0

a nd in this Section of the SOW. The Final Screening Feasibilit y Stud y and EPA's Sitewide Baseline Risk Assessments will provide the basis for the FS. Pertinent Rl

reports, as well as EPA's fate and transport model for surface water and sediment

within the Site will be considered, if necessary, during the development of the FS. T he FS is a detailed analysis of remedial alternatives which will provide EPA with

t he information needed for selection of remedial actions within an OU. The FS

consists of an analysis of each option against nine evaluation criteria of the NCP

and a comparative analysis of all options using the same evaluation criteria as a basis for comparison. The evaluation criteria are: (1) overall protection of human

health and the environment; (2) compliance with remedial action objectives and ARARs; (3) long-term effectiveness and permanence; (4) reduction of toxicity, mobility, or volume; (5) short-term effectiveness; (6) implementability ; (7) cost; (8)

state acceptance; and (9) community acceptance. The analysis of each remedial

alternative shall describe the necessary O&M requirements of each, includin g any

necessary institutional controls.

F or each alternative, the FS should provide: (1) a description of the

alternative that outlines the waste management strategy involved and identifies the ARARs and remedial action objectives associated with each alternative, and (2) a discussion of the individual criterion assessment. D&RG will perform a

comparative analysis between the remedial alternatives. That is, each alternative

will be compared against the others using the evaluation criteria as a basis of

comparison. Identificatio n and selection of the preferred alternative are reserved

by EPA. D&RG will prepare a technical memorandum summarizing the results of

the comparative analysis.

Prior to beginning the FS for D&RG's work area, D&RG will develop and

obtain approval from EPA of an FS work plan. The work plan will document the
decisions and evaluations to be completed during the FS. The work plan will

include a comprehensive description of the work to be performed, including the methodologies to be utilized, as well as a corresponding schedule for completion. T he plan will also contain a Site background summary with a description of the

operable unit for which D&RG will be completin g remedial actions. The work plan will discuss the incorporation of the cultural resource survey and evaluation into

t he FS.D&RG will furnish all necessary personnel, materials, and services needed, or

incidental to, performin g the FS. As specified in CERCLA Section 104(a)(1) , EPA will provide oversight of D&RG's activities throughout completion of the FS. D&RG will support EPA's initiation and performance of oversight activities.

After completion of the FS, D&RG will prepare a draft FS report for EPA' s

review and comment. D&RG will refer to the RI/FS Guidance for an outline of the

report format and the required report content. D&RG will prepare a final FS report

which satisfactorily addresses EPA' s comments.

T he final Rl and FS reports, as approved by EPA, EPA's baseline risk

assessments and the administrative record will form the basis for the selection of a remedial action(s) for the OU and will provide the information necessary to support

the issuance of the proposed plan. Upon conclusion of a Proposed Plan comment

period, EPA will be responsible for the selection of a remedy for OU3 and will

document this selection in a Record of Decision (ROD). The proposed plan shall be

available for public review and comment pursuant to Section 117(b ) of CERCLA. T he remedial action alternative selected by EPA (the Proposed Plan) will meet the

cleanup standards specified in CERCLA Section 121.

4.1.1 Data Quality Objectives

When designin g a data collection program or evaluation of data, D&RG shall

adhere to EPA guidance for these activities. If necessary, D&RG shall incorporate

the Data Quality Objective (DQO) process into the design of a sample collection

program. In summary the DQO approach identifies the appropriate decisions and

subsequently the sampling and analysis program is designed to provide information

needed to make such decisions. The data required to support these decisions are

identified by the data users. Existing data is evaluated to determine their quality

and useability to support identified decisions. The end result of the process is to

create DQOs, which are qualitative and quantitative statements developed so that

data of known and appropriate quality are obtained in support of Agency decisions.
4.1.2 Technical Advisory Committee (TAG)

Communication among all parties is a key consideration for conducting the

proposed work. Since details of the work that is to be performed pursuant to the CD and SOW have not been addressed, all parties need the opportunity to present

and discuss technical opinions in a manner which allows free exchange of

information. The TAC is currently organized to conduct technical discussions for

the majority of the work at the California Gulch Site and consists of EPA, the State

of Colorado, all PRPs at the Site, and Lake County health officials . The TAC may

be used in a similar manner for the completion of Site work within OU3. The TAC

allows technical issues to be discussed openly and objectively in order to efficientl y

and effectivel y evaluate information, debate technical issues, reach agreements,

and support Site decisions based on technical merit.

When necessary* TAC meetings may be convened to decide on technical

issues regarding the remediation of areas within OU3. EPA does not anticipate a frequent need for the TAC to address issues pertaining to OU3, however the

process is established and can be used when technical issues arise that require

debate and development of consensus between EPA and D&RG and coordination

with other PRPs at the Site.

Guidelines and responsibilities for conducting the TAC are described below:

1. Meetings

Representatives of EPA and D&RG agree to meet with other invited TAC

parties and confer in good faith at agreed-upon time periods to address project milestones and the nature and findings of various deliverables. Resolution of any

and all technical issues will be discussed before and during the proceedings.

A ny member of the TAC parties may propose the agenda for a TAC meeting. Agendas , prepared by the party who requested and scheduled the TAC meeting,

will be sent to all TAC parties to confirm the topics to be discussed and identify

the technical people who may need to attend. The requestor and scheduler will be

responsible for preparing and distributin g minutes of that meeting. The minutes

will be sent out in draf t form within the first week after the TAC meeting, and

comments must be submitted by participants within one week. Final minutes of

the meeting will be submitted to all parties within three weeks of the TAC and will

be filed in the Administrative Record for the Site.

2. TAC Representatives and Work Group Activities

T he TAC parties and their representatives, technical consultants,

contractors, or other designated representatives, may participate full y in TAC
discussions to resolve technical issues relating to the conduct of the Site Rl/FS and

the baseline human health and ecological risk assessments. Representatives of the City of Leadville, the Lake County Environmental Task Force and the public

generally may attend regularly scheduled TAC meetings. TAC parties may also

schedule ad hoc work group meetings from among its representatives to discuss

specific issues or problems affectin g the timely conduct of Site activities. Work

group meetings are not required to be open to the public. It is recognized that tho

nature of the issues/problems that may be discussed at ad hoc work group meetings may not permit advance notice and public participation. Any party to

this agreement may request a work group meeting to discuss and resolve issues to

avoid undue delay in the conduct of Site activities. Site activities include

development, planning, scheduling, and coordinating work on all deliverables and

activities.

3. Data and Documents

When undertaking samplin g under an approved work plan , D&RG will notify E PA in accordance with paragraph 27 of the CD. Any party desiring spli t samples

will be required to suppl y all necessary materials and personnel at the scheduled

time of sampling, in order to split such samples with the party collecting the

samples. It is understood that data and document exchanges which may concern

privileged matters, includin g internal preliminary draft s of analytical reports,

attorney-client communications, work products, deliberative process matters, or

enforcement documents, shall be addressed pursuant to the procedures set forth in C D.

4. Dispute Resolution

The direction and focus of the TAC will be to conduct technical and

scientific discussions in order to identif y areas of agreement where there may be

disagreement with regard to technical positions among parties. If technical

disputes cannot be resolved through the TAC process, the issues will be resolved

as outlined below:

1. The TAC will identify a technical work group, which in essence is an

extension of the TAC. The technical issue will be

presented to the TAC work group. Each party will be

allowed to select up to two experts to participate in the

work group discussions;

2. The findings and recommendations of the work group will be

presented to the TAC;

3. The TAC will attempt to reach a consensus on the issue in question;

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4. If consensus on the technical issue cannot be reached by the TAG, EPA shall decide on the outcome of the problem;

5. Subsequent dispute resolution may be invoked to address EPA's

decision pursuant to Section XX of the CD.

4.1.3 Cultural Resources

The Leadville area has been classified as a National Historic Landmark. Therefore the identification and evaluation of historic properties must be conducted

in the initial stages of the FS. There are two documents that govern the requirements that must be met

pertaining to Historic Preservation, Section 1 06 requirements. They are: 1 ) the Programmatic Agreement between EPA, State Historic Preservation Officer (SHPO)

a nd the Advisory Council; and, 2) the identification and Evaluation Plan (ID&E Plan) . T he Programmatic Agreement (PA) requires that remedial actions be

conducted in accordance with stipulation s for EPA to satisfy Section 106 of the HP Act. The stipulations provide for: an identification & evaluation process, assessing

effect s on and managing historic properties; development of a plan for

management of historic properties; discovery of historic properties during actions,

involvement of interested persons (i.e. public) ; adherence to standards and

guidance; and professional qualification s for this work.

T he ID&E Plan is currently being developed by a consultant for ASARCO and

should be complete during Fall of 1 993. All parties conducting identification and

evaluations of historic properties will be required to follo w this plan for all work

performed at the Site. "All work" includes any additional sampling, or other

investigative activities as well as any remedial activities. D&RG will be provided a draf t of the ID&E plan for comment. Once the document is final , D&RG must

adhere to the requirements and procedures in the plan when conducting remedial

activities at the Site.

4.2 Remedial Design

In the event that the ROD for OU3 selects a remedy other than "no action "

for any portion of OU3, D&RG will commence the remedial design process by

preparin g a Remedial Design Work Plan. The Work Plan will establish schedules for

the activities to be undertaken by D&RG in order to develop the final plans,

drawings, specifications, general provisions, and special requirements necessary to

implement the remedy or remedies selected in the Record of Decisions (RODs). T he Remedial Design shall include, if appropriate, pre-design activities requiring the
preparation of plannin g documents to guide field and laboratory activities, Remedial Design sampling and analysis, the refinement and evaluation of Remedial Design

options, design considerations for ecological habitats, and an evaluation of final O &M requirements. The Remedial Design Work Plan shall also address the

preparation of an Operation and Maintenance Plan during the Remedial Design. The final product of the RD is a technical package (or packages) that contains, or

addresses all the elements necessary to accomplish the Remedial Action. This

includes all design support activities, permitting and access requirements, historic

preservation (if during the FS it is determined to be necessary). Operation and Maintenance, and institutional controls, as well as technical elements. A portion of

the Site is designated as a historic mining district. Thus the RD must address

impacts the remedy will have on historic preservation.

4.2.1 Remedial Design Work Plan

D&RG shall submit a Remedial Design Work Plan to EPA within 30 days of EPA's issuance of an authorization to proceed. The Remedial Design Work Plan

shall be subject to approval by EPA, after reasonable opportunity for review and

comment by the State. The Remedial Design Work Plan will describe the plan for

implementation of the Remedial Design. It will contain some or all of the followin g

elements as determined necessary by EPA:

1. Proposed composition of the design team;

2. A Health and Safet y Plan ;

3. Requirements for additional field data collection, if necessary;

4. A Quality Assurance Plan for field data collection;

5. A remedial management strategy to address proposed procurement

schemes;

6. Requirements for Treatability Studies , if necessary; The Treatability Studies will be conducted early in the RD process to

obtain information on the performance and cost for treatment

technologies being evaluated. Treatability Studies will be conducted

by the PRP, qualified vendors, or laboratories. The quantities to be

tested will be addressed to establish the level of treatability required. Quality Control and Quality Assurance procedures will be developed to

ensure compliance with applicable guidance, regulations, and plans;

7. A proposed Remedial Design Schedule for completion of the design

with dates for intermediate deliverables;

8. Treatment technologies not specificall y stated in the ROD proposed to

meet all Performance Standards;

9. A Permitting Requirements Plan. D&RG must meet the substantive

requirements of all Applicabl e or Relevant and Appropriate Requirements (ARARs) pertaining to permits for onsite activities, as

well as obtaining all required permits for off-site activities.

10
E PA after review and comment shall: (a) approve, in whole or-in part,

t he submission; (b) approve the submission upon specified conditions;

( c) modif y the submission to cure the deficiencies; (d) disapprove, in

whole or in part, the submission, directing that D&RG modif y the

submission; (e) disapprove, in whole or in part, the submission,

notifyin g D&RG of deficiencies and EPA's decision to amend or

develop the submission; or (f) any combination of the above.

10. Operation and Maintenance Plan.

4.2.2 Design Reviews

Upon receipt of EPA's acceptance of the Remedial Design Work Plan, D&RG will implement the Work Plan. Up to three design submittals may be required for EPA review. The purpose of the design reviews is to permit EPA to assess the

design's feasibilit y to achieve the Remedial Action goals in accordance with the ROD and Consent Decree. Design reviews will consist of three stages, described

in Paragraphs 1, 2, and 3, below. At EPA's option, after consultation with the State, EPA may elect to waive the requirement for the Intermediate Design Submittal or to elect only to meet with D&RG to review progress on design work. Thi s determination will be made by EPA after reviewing the Preliminary Design Submittal . in the event that the cultural resources survey indicates that remedial

action may have impacts to cultural resources, the remedial design must be

coordinated and reviewed by the SHPO.

1. Preliminary Design Submittal

Preliminary Design begins with initial design and ends with the

completion of the conceptual design. Standard tasks, including data

gathering, treatability studies (if necessary), the Design Criteria Report, management strategy, and value engineering screening are required before

commencing the design. These tasks are closely related to the actual

design, and are typicall y performed by the designer. The Preliminary Design Submittal will include some or all of the followin g elements:

a. Design criteria. During the preliminary design phase, concepts

supportin g the technical aspects of the design are defined in detail

and presented in a "Design Criteria Report" prepared by the designer. T he Design Criteria Report shall document that the design meets the

technical requirements of the ROD includin g compliance with all ARARs , acceptance of environmental protection measures and

technologies, feasibility of all components of the selected remedy, and

meets standard professional engineering practices.

b. Project Delivery Strategy. Thi s shall describe the designers strategy

f or timely project delivery and should expand upon the management

strategy. It shall focus on the management necessary to carry out the

11
design and implement the Remedial Action. Elements to be addressed

include procurement method and contracting strategy, phasing

alternatives, health and safety considerations, review requirements,

and contractor and equipment availability concerns.

c. Results of treatability studies and additional field sampling.

d. Preliminary plans, drawings, and sketches.

e. Outline of required specifications.

f. Historic Preservation Contingency Plan

2. Intermediate Design Submittal

D&RG will submit to EPA an Intermediate Design at the midpoint of

t he detailed design effort . The Intermediate Design Submittal will consist of a continuation and expansion of the Preliminary Design Submittal . It shall include a draf t Remedial Action Samplin g and Analysi s Plan , draf t Health and Safet y Plan , draf t Operation and Maintenance Plan , and preliminary construction schedule. It will

clearly show any modificatio n of the design as a result of

incorporation of comments furnished on the preliminary Remedial Design submittal.

3. Pre-Final/Final Design Review

In accordance with the schedule established in the approved Remedial Design Work Plan , D&RG wil l submit a Pre-Final/Final Design which will

include some or all of the followin g elements as determined necessary by

EPA:

a. A Final Design Analysi s Report detailin g design compliance with Performance Standards , and addressing all issues and comments

which arose during the design process. It will clearly address any modification of the design as a result of incorporation of comments

furnished during the preliminary and intermediate design submittal

review or as a result of any value engineering recommendations by

the Supervising Contractor or others;

b. Final plans and specifications;

c. Proposed construction schedule;

d. Operation and Maintenance (O&M) Plan ;

e. Field Samplin g Plan (FSP); Thi s plan shall defin e in detail the samplin g

and data gathering methods to be used during construction of a

project. It shall be the basis for ascertaining whether the Performance Standards have been achieved by the Remedial Action. The plan shall

describe the statistical approach to be used during sampling, the

procedures for resampling for false positive sample results, and a

12
schedule for sampling during the remedial action activities;

f. Construction Quality Assurance Plan (CQAP). Thi s plan shall describe

the site specific components of the quality assurance program which

will ensure, with a reasonable degree of certainty, that the completed

project meets or exceeds all design criteria, plans, and specifications. T he Construction Quality Assurance Plan will contain, at a minimum,

t he followin g elements:

i. Responsibilities and authorities of all organizations and key

personnel involved in the design and construction of the site

remediation.

i i. Qualification s of the Quality Assurance Official to demonstrate

he possesses the training and experience necessary to fulfill his

identified responsibilities.

iii. Testin g and samplin g protocols used to monitor construction.

i v. Samplin g activities, sample size, sample locations, frequency of

testing, acceptance and rejection data sheets, problem

identificatio n and corrective measures reports, evaluation

reports, acceptance reports, and final documentation. Describe

t he provisions for final storage of all records consistent with

requirements of the Consent Decree,

g. Contingency Plan. Thi s shall be written for the local affected

population in the event of an accident or emergency at the site. It will

incorporate an Air Monitorin g Plan and a Spill Prevention, Control and Countermeasures Plan (SPCC) (i f applicable) . The Contingency Plan

will , at a minimum, include the following:

i. Name of the person responsible for responding in the event of

an emergency incident.

i i. Plan and date for meeting with the local community, includin g

local. State and Federal agencies involved in the cleanup, as

well as local emergency squads and hospitals.

iii. First aid and medical information includin g names of personnel

trained in firs t aid, clearly marked map with the locations of medical facilities , all necessary emergency phone numbers, fire,

rescue, local hazardous material teams, and National Emergency Response Team.

i v. Air Monitoring Plan (if applicable) . Air monitoring will be

necessary at any site when the site specific risk assessment

indicates short term or long term risk via the inhalation/air

transport pathway. Thi s pla n will detail the minimum

requirements for air monitoring both on-site and at the

perimeter of the site. The chemical constituents identified at

the site as part of the risk assessment will be the basis for

pollutan t samplin g and measurement of pollutant s in the

atmosphere. Air monitoring will include personnel monitoring,

13
on-site and off-site area monitoring, and perimeter monitoring. Trigger concentrations to implement the Contingency Plan will

be specified.

v. Spill Prevention, Control and Countermeasures (SPCC) Plan (if applicable ) as specified in 40 CFR Part 109 will prevent and

provide contingency measures for potential spill s and

discharges from material handlin g and transportation. The SPCC Plan shall describe methods, means, and facilities

required to prevent contamination of soil, water, atmosphere,

uncontaminated structures, equipment or material from the

discharge of wastes due to spills . It shall provide for equipment

and personnel to perform emergency measures required to

contain any spillage and to remove and properly dispose of any media that becomes contaminated due to spillage . The SPCC Plan will also provide for equipment and personnel to perform

decontamination measures that may be required to remove

spillage from previously uncontaminated structures, equipment,

or material.

h. A Final Permitting Plan to demonstrate compliance with the permitting

requirements identified in the RD Work Plan Permitting Requirements Plan .

i. Requirements for a Health and Safet y Plan. The draf t Health and Safet y Plan shall meet or exceed requirements of CERCLA and the Occupational Safet y an d Health Administration (OSHA). The draf t Health and Safet y Plan shall identif y specific monitoring and

management activities for minimizing risks to human health and the

environment and for maximizing the safety of all operations associated

with remedial design sampling. The draf t Health and Safet y Plan shall

include at a minimum the followin g elements: an assessment of

chemical and physical hazards at all relevant samplin g locations;

identificatio n of site control measures; identification of required levels

of protection and safety equipment; field monitoring requirements;

equipment and personnel decontamination and residual management;

training and medical monitoring requirements; and emergency plannin g

and emergency contacts. At a minimum, the draf t Health and Safet y Plan shall also document specific procedures, criteria, or protocols,

including: material safety data sheets for selected contaminants;

safety instructions for special equipment; use and maintenance of

special equipment; status of training and medical examinations for

field personnel and health and safety officers; and copies of reports

and other health and safety documentation,

j. Site access will be provided for the RPM, State Officials , EPA Oversight Officials , and other agencies with jurisdictional interest.

14
4.3. Remedial Action

T he Remedial Action ("RA") process begins with the preparation of the RA Work Plan which sets forth plans and schedules for the actual implementation of

the remedy.

4.3.1 Remedial Action Work Plan

D&RG wil l submit within 30 days after receipt of EPA's final response to the Final Remedial Design submittal, the Remedial Action Work Plan for review by EPA. T he Remedial Action Work Plan will describe the pla n for implementation of the Remedial Action within the terms and conditions of the Consent Decree and the SOW, and as set forth in the final design submittal. It will contain those elements

indicated in the Consent Decree, as well as the followin g items as determined to

be necessary by EPA:

1. Description of the work and field operations.

2. Schedule of Remedial Action activities.

3. Identificatio n of the Remedial Action Team for construction

management, includin g the key personnel, descriptions of duties, and

lines of authority.

4. Identification of the process for selecting the Remedial Action Constructor, whether the construction is to be accomplished by D&RG's "in-house" resources or through a construction contract.

5. A clear and concise description of the roles, relationships, and

assignment of responsibilities among D&RG' s Project Coordinator, Remedial Action Quality Assurance Official , Supervisin g Contractor, Remedial Design Team, and the Remedial Action Constructor.

6. Arrangements for the Remedial Design Team to provide assistance

through the Remedial Action.

7. A procedure to include EPA review of construction changes that may

impact the implementation of the ROD.

8. A Transport and Disposal Plan in accordance with the Off-site Rule for

contaminated material that is to be removed, transported and

disposed of at a RCRA facility . D&RG shall provide written notice

prior to any out-of-state shipment of waste material for disposal as set

forth in Section VI, Paragraph 17 of the Consent Decree.

9. Strategies for implementin g the followin g plans , prepared previously:

a. Operation and Maintenance Plan. - b. Field Samplin g Plan ,

c. Construction Quality Assurance Plan (CQAP), includin g

experience and qualification s of the Quality Assurance Official

described in Section XI above,

d. Contingency Plan, includin g Air Monitoring Plan, and Spill Prevention, Control, and Countermeasures Plan.

15
e. Permitting Requirements Plan.

1 0. A Health and Safet y Plan for field construction activities.

4.3.2 Review of the Construction Quality Control Plan

Within 30 days of selection of the Remedial Action Constructor, D&RG will

submit to EPA for review the Construction Quality Control Plan. The Remedial Action Contractor is responsible for all activities necessary to manage, control, and

document work so as to ensure compliance with the project requirements, plan s

and specifications. The Construction Quality Control Plan will be prepared by the Remedial Action Constructor and it will indicate the scope and complexity of the

work as well as the project requirements. It will be the Remedial Action Constructor' s management tool and will include some or all of the followin g

elements as determined necessary by EPA:

1. A description of organization providing quality control, includin g lines

of authority.

2. The name, qualifications , duties, responsibilities , and authorities of

each person who is assigned a quality control function.

3. A copy of a letter signed by the Remedial Action Constructor which

describes the responsibilities and delegates the authorities of the

quality control manager.

4. Methods of performin g the quality control inspections, includin g

inspection times and subjects.

5. Control testing procedures for each specific test. Thi s includes

information which authenticates that personnel and laboratories

performin g the tests are qualified, and that the equipment and

procedures to be used comply with applicable standards.

6. Procedures for schedulin g and managing submittal, including those of

subcontractors, off-site fabricators, suppliers , and purchasing acts.

7. Reporting procedures, includin g frequency of reports and report

formats as required in Section XI of the Consent Decree.

8. Reporting requirements and information to be provided to the Quality Assurance Official .

4.3.3 Preconstruction Conference

Prior to the start of construction and if requested by EPA, D&RG will

schedule and initiate a pre-construction conference. The participants will include

a ll parties involved in the Remedial Action. Participants also will include as

applicable: the Project Coordinator, the EPA Remedial Project Manager and any

designated EPA Oversight Officials , the Supervising Contractor, the Quality Assurance Official, the Remedial Action Constructor, a representative of the Remedial Design Team, and all selected subcontractors.

16
The purpose of the pre-construction conference will be to establish , relationships among all parties involved in the Remedial Action, including lines of

communication and authority, and to describe Remedial Action activities.

4.3.4 Construction Oversight

During implementation of the Remedial Action, D&RG will be responsible for

assuring access for the RPM, and Oversight Official s to the site, all land and

facilities required for monitoring compliance with the Consent Decree. D&RG will

provide personal protective equipment for the RPM and Oversight Official s who

have received the necessary training under 29 CFR Part 1910.120 to access all

portions of the site in order to accomplish their oversight duties.

4.3.5 Attainment of Performance Standards

D&RG shall continue remediation activities until the Performance Standards

are attained. Attainment shall be defined as D&RG's ability to demonstrate that

the Performance Standards have been met. D&RG shall consider and address the

potential impact of seasonal variations in meeting the Performance Standards.

T he followin g guidance documents shall be used as necessary for

statistically determining the attainment of Performance Standards: Test Methods for Evaluating Solid Waste: Physical/Chemical Methods: Third Edition (OSW: SW-846). Guidance Manual on Hazardous Waste Land Treatment Closure/Post- Closure: 40 CFR Part 265 (NTS: PB87-183 195). Methods for Evaluating the Attainment of Cleanup Standards Vol. II: Pepe Lecayo, PM-223). Toxicity Characteristic (Final Rule) (EPA/OSW-FR-99-026) .

4.3.6 Certification of Completion of Remedial Actions

Within 90 days after D&RG concludes that the Remedial Action has been

completed and that all Performance Standards have been met, D&RG shall request

the scheduling of a pre-certification inspection. Pre-certification and certification

inspection participants may include the EPA Remedial Project Manager and

designated EPA Oversight Officials . The purpose of the inspection is to determine

whether all aspects of the plans and specification s have been implemented at the Site, and whether the remedy is operational and capable of meeting Performance Standards. The final Operation and Maintenance Plan will be presented for review

prior to scheduling of the pre-certification inspection to allow comments on the

plan simultaneously with inspection comments. If any items have not been

completed, D&RG will develop a punch list specifyin g the outstanding items which

require completion or correction before acceptance of work.

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A written certification report shall be submitted to EPA for review and

comment after completion of the pre-certification inspection. EPA will notify D&RG of any corrective actions necessary to satisfactorily complete the Remedial Action and achieve Performance Standards if deficiencies are found to exist.

A certification inspection shall be conducted when all the corrective action

items have been completed. All items specified to require correction shall be

reinspected, and all tests that were originally unsatisfactory shall be conducted

again. If EPA concludes after reasonable opportunity for review and comment by

the State that the Remedial Action has been fully performed in accordance with

the Consent Decree and that Performance Standards have been attained in

accordance with this SOW, certification will be granted in writing by EPA.

4.3.7 Remedial Action Report

Upon certification of the completion of the Remedial Action, D&RG shall

prepare a Remedial Action Report which certifies that all items contained in the Consent Decree and any incorporated documents (e.g., plan s and specifications)

have been completed. The report shall include, as EPA determines to be

necessary, the following: a construction chronology, a list of construction

modifications, pre-certification and certification inspection corrections,

documentation substantiating that Performance Standards (e.g., test results) have

been met, and As-Built Drawings of the project.

4.3.8 Certification of Completion of Work

D&RG's work shall be considered complete when D&RG has fully satisfied

the requirements in Section XV of the CD.

I f, after review of the remedial action report by EPA and after reasonable

opportunity for review and comment by the State, EPA determines that any portion

of the work is not complete, EPA will inform the D&RG in writing of the activities

required to complete the work. EPA will provide a schedule for the performance of

the activities consistent with the Consent Decree and this SOW or require D&RG to

submit a schedule to EPA for approval.

If EPA concludes, based on the initial or subsequent request for Certification

of Completion of Work by D&RG, that work has been full y performed in

accordance with the Consent Decree, EPA will so notify D&RG in writing.

4.4 Operation and Maintenance

O &M begins after the remedy has achieved the Remedial Action objectives

and remediation goals in the ROD and this SOW, and when the Remedial Action is

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determined to be operational and functional by EPA. Pursuant to 40 CFR Part

300.435, a remedy is considered "operational and functional" one year after

completion of Remedial Action Construction, or when it is determined by EPA to be

performin g properl y and as designed, whichever is earlier.

T he O&M process shall begin upon completion of the RA, and shall include

all activities described in the O&M Plan , the scope of which is to describe activities

required to maintain the effectivenes s of the Remedial Action. These O&M

activities may include but are not limited to the imposition of land use controls and

restrictions that are necessary to ensure the continued protection of the remedy(s).

4.5 Community Relations

T he development and implementation of community relations activities are

the responsibility of EPA. Implementation will be based on the plans laid out in the

1993 EPA California Gulch Community Relations Plan. Although implementation of

t he community relations plan is the responsibility of EPA, D&RG will develop,

jointl y with EPA, comprehensive strategies for communication with the community

during the FS, remedial design and implementation of the work conducted pursuant

to this SOW and CD. Activities for implementin g these communication strategies

m ay include such items as providing information regarding the site's history,

preparing fact sheets, participatin g in public meetings, consulting with and

informin g the community on a regular basis in cooperation with EPA, CDH and Lake County and City officials . D&RG will assure coordination between the

community and those performin g work at the site prior to and during the actual

implementation of work. All PRP-conducted community relations activities will be

subject to direction and oversight by EPA.

4.6 Schedule of Deliverables

DELIVERABLE DATE

FS Work Plan 30 Days After Signin g of CD

Draft FS Report 30 Days After Completion of FS

Final FS Report 30 Days After EPA Approval of Draft FS Report

Remedial Design Work Plan 30 Days After EPA issues Notice to Proceed with design

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Remedial Design Submittal s

Remedial Action Work Plan

Construction Quality Control Plan

Pre-Certification Inspection

Remedial Action Report

Certificatio n of Completion

of Work

First submittal to be delivered one month

after EPA approval of work plan (number of

submittals shall be determined in work plan )

30 days after receipt of EPA's approval of Final Remedial Design

30 days after selection of remedial action

contractor

At least 90 days after completion of Remedial Action

60 days after certification of Completion of Remedial Action

30 days after completion of all phases of

work

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REFERENCES FOR CITATION

T he followin g list, although not comprehensive, comprises many of the

regulations and guidance documents that appl y to the RI/FS process:

T he (revised) National Contingency Plan

"Guidance for Conducting Remedial Investigations and Feasibility Studies Under CERCLA," U.S. ERA, Offic e of Emergency and Remedial Response, October 1988, OSWER Directive No. 9355.3-01.

"Interim Guidance on Potentially Responsible Party Participation in Remedial Investigation and Feasibility Studies," U.S. EPA, Offic e of Waste Programs Enforcement, Appendix A to OSWER Directive No. 9355.3-01.

"Guidance on Oversight of Potentially Responsible Party Remedial Investigations

a nd Feasibilit y Studies," U.S. EPA, Offic e of Waste Programs Enforcement, OSWER Directive No. 9835.3

"A Compendium of Superfun d Field Operations Methods," Two Volumes, U.S. EPA,.Offic e of Emergency and Remedial Response, EPA/540/P-87/001a, August

1987, OSWER Directive No. 9355.0-14.

"EPA NEIC Policies and Procedures Manual," May 1978, revised November 1984,

EPA-330/9-78-001-R.

1

"Data Quality Objectives for Remedial Response Activities," U.S. EPA, Offic e of Emergency and Remedial Response and Offic e of Waste Programs Enforcement,

1EPA/540/G-87/003, March 1987, OSWER Directive No. 9335.0-7B.

"Guidelines and Specification s for Preparing Quality Assurance Project Plans," U.S. EPA, Offic e of Research and Development, Cincinnati, OH, QAMS-004/80, December 29, 1980.

"Interim Guidelines and Specification s for Preparing Quality Assurance Project Plans," U.S. EPA, Offic e of Emergency and Remedial Response, QAMS-005/80, December 1980.

"Users Guide to the EPA Contract Laboratory Program," U.S. EPA, Sample Management Office , August 1982.

"Interim Guidance on Compliance with Applicable or Relevant and Appropriate

21
Requirements," U.S. EPA, Offic e of Emergency and Remedial Response, July 9,

1987, OSWER Directive No. 9234.0-05.

"CERCLA Compliance with Other Laws Manual," Two Volumes, U.S. EPA, Offic e

of Emergency and Remedial Response, August 1988 (draft), OSWER Directive No.

9234.1-01 and-02.

"Guidance on Remedial Actions for Contaminated Ground Water at Superfun d Sites," U.S. EPA, Offic e of Emergency and Remedial Response, (draft), OSWER Directive No. 9283.1-2.

"Draft Guidance on Preparing Superfun d Decision Documents," U.S. EPA, Offic e

of Emergency and Remedial Response, March 1988, OSWER Directive No. 9355.3-

02

"Risk Assessment Guidance for Superfun d - Volume I Human Health Evaluation Manual (Part A)," December 1989, EPA/540/1-89/002

"Risk Assessment Guidance for Superfun d - Volume II Environmental Evaluation Manual," March 1989, EPA/540/1-89/001

"Guidance for Data Useability in Risk Assessment," October, 1990, EPA/540/G90/008

"Performance of Risk Assessments in Remedial Investigation /Feasibilit y Studies (RI/Fss) Conducted by Potentially Responsible Parties (PRPs)," August 28, 1990, OSWER Directive No. 9835.15.

"Role of the Baseline Risk Assessment in Superfun d Remedy Selection Decisions,"

Apri l 22, 1991, OSWER Directive No. 9355.0-30.

"Health and Safety Requirements of Employees Employed in Field Activities," U.S. EPA, Offic e of Emergency and Remedial Response, July 12, 1981, EPA Order No.

1440.2.

OSHA Regulations in 29 CFR 1910.120 (Federal Register 45654, December 19,

1986).

"Interim Guidance on Administrative Records for Selection of CERCLA Response Actions," U.S. EPA, Offic e of Waste Programs Enforcement, March 1, 1989, OSWER Directive No. 9833.3A.

"Community Relations in Superfund: A Handbook," U.S. EPA, Offic e of Emergency and Remedial Response, Jun e 1988, OSWER Directive No. 9230.0#3B.

22
"Community Relations During Enforcement Activities And Development of the Administrative Record," U.S. ERA, Offic e of Programs Enforcement, November

1988, OSWER Directive No.

9836.0-1 A.

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APPENDI X B