UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460

O FFICE O F E NFORCEMENT AND C OMPLIANCE A SSURANCE Novem b er 1, 2005 MEMORANDUM SUBJECT: Model RCRA § 7003 Adm i nistrative Order on Consent FROM: S usan E. Brom m , Director /s/ Office of Site Rem e diation Enforcem ent TO: R egional Counsel, Regions 1-10 RCRA Program Managers, Regions 1-10

The Office of Site Rem e diation Enforcem ent (OSRE) is pleased to issue the attached Model RCRA § 7003 Administrative Order on Consent (AOC) for use in requiring cleanup of sites or facilities where past disposal of solid or hazardous waste may present an imminent and substantial endangerment to health or the environment. This model order is intended for long term cleanups, but includes optional provisions that may be substituted to address sites with less complex cleanup needs. With this model order we are providing a list of frequently asked questions (FAQS). The FAQS are designed to assist you in drafting and negotiating RCRA §7003 administrative orders on consent. This model order on consent is part of the Office of Enforcement and Compliance Assurance’s (OECA) broader initiative to improve financial assurance to ensure the cleanup of hazardous waste sites and contains language requiring the respondent to provide financial assurance for a corrective action. For information on OECA’s financial assurance initiative please see http://www.epa.gov/oeca/data/planning/priorities/index.html. Regions are strongly encouraged to consider incorporating financial assurance language in RCRA § 7003 administrative orders on consent. Pursuant to RCRA §7003, financial assurance may be required for corrective action if EPA makes a finding that such assurance is necessary to protect human health or the environment. This may be the case, for example, when the estimated costs of the remedy are expected to be significant and implementation of the remedy will take more than a few weeks. A trust fund is one mechanism that can be used for financial assurance, to satisfy RCRA § 7003 AOCs, if the trust agreement is carefully drafted so as not to name EPA as the beneficiary. To promote the use of financial assurance when using this model RCRA § 7003 order, OSRE is also developing and plans to issue in the near future a sample trust agreement, as well as a “tip sheet,” that explain how a trust agreement operates. For additional information concerning the timing of when to seek financial assurance for corrective action theRegions should consult OSRE’s “Interim Guidance on Financial Responsibility for Facilities Subject to RCRA Corrective Action" issued Septem ber 30, 2003. If a Region is considering whether to issue a RCRA § 7003 order versus a RCRA § 3008(h) order, they should consult OECA’s “Guidance on the Use of Section 7003 of RCRA,” issued October 1997. This guidance discusses when it is appropriate to use RCRA § 7003 instead of RCRA § 3008(h) or other EPA enforcem ent authorities to require cleanup up of solid or hazardous waste. OSRE also plans to issue m odel financial assurance language for RCRA 3008(h) adm i nistrative orders on consent in the near future. If a Region determ ines that it is appropriate to issue a joint RCRA §7003/CERCLA § 106 adm i nistrative order on consent, they should consult with OSRE regarding the m o st current CERCLA agreem ent language or go to http://intranet.epa.gov/oeca/osre/project/aviall.htm l

. The m odel RCRA §7003 adm i nistrative order will be available in approxim a tely 30 days on the following internet and intranet addresses: http://www.epa.gov/comp liance/resources/policies/cleanup/rcra/7003-aoc-05-m od.pdf http://intranet.epa.gov/oeca/osre/docum ents/m odels/7003-aoc-05-m od.wpd I would like to express m y appreciation to the Regional offices, the Office of Solid W a ste, the Office of General Counsel and the Departm e nt of Justice for their assistance in developing this docum ent. This m odel order is intended solely as guidance for employees of the U.S. Environm ental Protection Agency. If you have questions concerning the m odel RCRA §7003 consent order, or the FAQs, please contact Am y Legare, OSRE at 202-564-4256. If you have specific questions concerning the RCRA financia l assurance provisions please contact Tracy Gipson, OSRE, at 202-564-4236. Enclosures

cc: Matt Hale, OSW Scott Sherm a n, OGC Kathy Kelly, Lead RCRA Regional Coordinator, Region 10____________________________________ RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

IN THE MATTER OF: ) ) [Insert name of site or facility ) and name(s) of respondents & EPA ) ID No., if applicable] ) ) ) E PA DOCKET NO. ) RCRA 7003 - [insert docket number] ) RESPONDENT ) ) Proceeding under Section 7003 of ) the Resource Conservation and ) Recovery Act, 42 U.S.C. Section ) 6900, et seq., as am ended. ) ____________________________________)

MODEL RCRA § 7003 ADMINISTRATIVE ORDER ON CONSENT

This m odel is intended solely as guidance for em ploy ees of the U.S. Environm ental Protection Agency. Any statutory provisions and EPA regulations described in th is docum ent contain legally binding requirem e nts. But this docum ent itself does not im pose any legally bi nding requirem e nts on EPA, States, or the regulated com m unity, and m a y not be relied upon to create a right or be nefit, substantive or procedural, enforceable at law or in equity, by any person. EPA decisionm akers have the discretion to take action at variance with this m odel on a case-by-case basis, for exam ple in connection with th e RCRA reform for stream lined corrective action orders. This guidance is a living docum ent and m a y be revised periodically without public notice. This m odel is designed to assist in the preparation of ad m i nistrative orders on consent that require cleanup of sites or facilities where past or present ha ndling, storage, treatm e nt, transporta tion or disposal of solid or hazardous waste m a y present an im m i nent and substantial endangerm en t to health or the environm ent. This m odel order is intended prim arily to assist in the preparation of consent orders for long term cleanups, but includes som e alternative provisions that m a y be of assistance in prepar ing orders for sites with less com p lex cleanup needs. It is not designed for use as a unilateral order or as a consent order for injunctive relief in a court action. Before issuing a joint RCRA § 7003/CERCLA § 106 adm i nistrative order on consent Regions should consult with the Office of Site Rem e diation Enforcem ent re garding the m o st current CERCLA agreem ent language.RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product TABLE OF CONTENTS [NOTE: Pagination in blue indicates hyp erlink to the section w i thin the document.] I. INTRODUCTION

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- I I

. J U R I S D I C T I O N

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- III. PARTIES BOUND

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- I V

. D E F I N I T I O N S

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- V

. F I N D I N G S O F F A C T

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- VI. CONCLUSIONS OF LAWAND DETERMINATIONS

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- V I I

. O R D E R O N C O N S E N T

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- VIII. W O RK TO BE PERFORMED

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- IX. EPA APPROVAL OF DELIVERABLES

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. M O D I F I C A T I O N O F T H E W O R K P L A N

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- XI. QUALITY ASSURANCE

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- X I I

. A D M I N I S T R A T I V E D O C U M E N T A T I O N

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- XIII. DOCUMENT CERTIFICATION

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- XIV. SAMPLING, ACCESS AND DATA AVAILABILITY

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- X V

. C O M P L I A N C E W I T H O T H E R L A W S

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- XVI. RECORD RETENTION

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- X V I I

. R E I M B U R S E M E N T O F O V E R S I G H T C O S T S

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- XVIII. DISPUTE RESOLUTION

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- X I X

. P E N A L T I E S

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-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product X X

. F O R C E M A J E U R E

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- X X I

. R E S E R V A T I O N O F R I G H T S

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- X X I I

. O T H E R C L A I M S

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- XXIII. INSURANCE

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- XXIV. COST ESTIMATES AND FINANCIAL ASSURANCE

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- XXV. INDEMNIFICATION

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- XXVI. MODIFICATION OF THIS AOC

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- XXVII. ADDITIONAL W O RK

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- XXVIII. TERMINATION AND SATISFACTION

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- X X I X

. P U B L I C C O M M E N T O N T H I S A O C

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- XXX. SEVERABILITY

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- XXXI. EFFECTIVE DATE

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ATTACHMENTRCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product I. INTRODUCTION 1. This Adm i nistrative Order on Consent (AOC) is entered into voluntarily by the United States Environm ental Protection Agency (EPA) and Respondent [insert name]

. This AOC provides for the perform a nce of [insert a brief, general description of activities that w ill be included in the Scope of Work (SOW) and/or Section VIII (Work to be Performed)] , including any Additional W o rk that m a y be required by Section XXVII (Additional W o rk) of this AOC, by Respondent in connection with the property located at [insert address]

. In entering into this AOC, the mu tual objectives of EPA and Respondent are to identify, investigate, rem e dy, and/or prevent the potential endangerm ent to hum an health and/or the environm ent from activities involving [insert as appropriate either “solid w a ste,” “haz ardous w a ste,” “solid w a ste and haz a rdous w a ste,” or constituents of such w a stes] , and to insure that the W o rk ordered by EPA be designed and implem ented to protect hum an health and/or the environm ent. These mu tual objectives are described in Attachm e nt A, the SOW , which is hereby incorporated into this AOC by ref e rence. [NOTE: If the description of the Work to be performed is short then it may be included in Section VIII (Work to be Performed) instead of in a SOW.] Respondent shall finance and perform the W o rk in accordance with this AOC, plans, standards, specifications and sche dules set forth in this AOC or developed by Respondent and approved by EPA pursuant to this AOC. 2. EPA has determ ined that Respondent has contributed or is contributing to the past or present handling, storage, treatm e nt, transportation or disposal of [insert as appropriate either “solid w a ste”, “haz ardous w a ste”, “solid w a ste and haz a rdous w a ste”or constituents of such w a stes] that m a y present an im m i nent and substantial endangerm ent to health or the environm ent. 3. EPA has notified the State of

_____ of this action pursuant to Section 7003(a) of RCRA, 42 U.S.C. § 6973(a), on [insert date of notice]

. [NOTE: For actions in Indian country, substi tute the name of the affected tribe for the state. The January 17, 2001 “Guidance on th e Enforcement Principles Outlined in the 1984 Indian Policy” calls for government-to-government consultation w i th the affected tribe. If the state is also affected by the ac tion and the tribe agrees that it is appropriate, then the AOC should note that both the tribe and the state w ere notified.] 4. [OPTIONAL: Respondent may be w illing to sign the AOC w i thout this paragraph.] Respondent’s participation in this AOC shall not constitute or be construed as an adm i ssion of liability. Respondent neither adm its nor denies the factual allegations and legal conclusions set forth in this AOC (Sections V and VI, Findings of Fact and

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-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product Conclusions of Law). 5. EPA and Respondent acknowledge that this AOC has been negotiated by the parties in good faith and that this AOC is fair, reasonable, and in the public interest. II. JURISDICTION 6. This AOC is issued under the authority vested in the Adm i nistrator of EPA by Section 7003 of RCRA, which authority has been delegated to the Regional Adm i nistrators of EPA by Delegations 8-22-A and 8-22-C (April 20, 1994), and redelegated to [insert Regional delegated manager title] of EPA Region [insert number of Region] by Delegation [insert regional delegation number]

. 7. Respondent agrees to undertake and comp lete all actions required by the term s and conditions of this AOC. In any action by EPA or the United States to enforce the term s of this AOC, Respondent consents to and agrees not to contest the authority or jurisdiction of the [insert Regional delegated manager title] to issue or enf o rce this AOC, and agrees not to contest the validity of this AOC or its term s or conditions. III. PARTIES BOUND 8. This AOC shall apply to and be binding upon EPA, and on Respondent and Respondent’s officers, directors, employees, agents, successors, assigns, heirs, trustees, receivers, and upon all persons, including but not lim ited to contractors and consultants, acting on behalf of Respondent, as well as upon subsequent purchasers of the Site. [Optional: insert if more than one Respondent: Respondents are jointly and severally responsible for carrying out all actions required of them by this AOC.] Any change in the ownership or corporate status of Respondent including, but not lim ited to, any transfer of assets or real or personal property shall not alter Respondent’s responsibilities under this AOC. 9. Respondent shall provide a copy of this AOC to any subsequent owners or successors before a controlling interest in ownership rights, stock, assets or the Site is transferred. Respondent shall be responsible for and liable for comp leting all of the activities required pursuant to this AOC, regardless of whether there has been a transfer of ownership or control of the Site or whether said activities are to be perf orm e d by employees, agents, contractors, subcontractors, laboratories, orconsultants of Respondent. Respondent shall provide a copy of this AOC within seven (7) days of the Effective Date of this AOC, or the date that such services are retained, to all contractors, subcontractors, laboratories, and consultants that are retained to conduct or m onitor any portion of the W o rk perform e d pursuant to this AOC. Respondent shall condition all contracts or agreem ents -2

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product with contractors, subcontractors, laboratorie s and/or consultants in connection with this AOC, on comp liance with the term s of this AOC. Respondent shall ensure that its contractors, subcontractors, laboratories, and consultants com p ly with this AOC. 10. Not later than 60 days prior to any voluntary transfer by Respondent of any interest in the Site or the operation of the facility, Respondent shall notify EPA of the proposed transfer. In the case of a voluntary transfer through a bankruptcy, Respondent shall notify EPA within 24 hours of the decision to transfer property. Respondent shall notify EPA of any involuntary transfers im m e diately upon Responde nt’s initial receipt of notice of any involuntary transfer. Not later than 3 days after any transfer, Respondent shall subm it copies of the transfer docum ents to EPA. IV. DEFINITIONS 11. Unless otherwise expressly provided herein, term s used in this AOC that are defined in the RCRA statute shall have the m eaning assigned to them in that statute. W h enever the term s listed below are used in this AOC the following definitions apply: [insert terms and definitions specific to this AOC, e.g.,] “CERCLA” shall m ean the Comp rehensive Environm ental Response, Comp ensation, and Liability Act of 1980, as am ended, 42 U.S.C. §§ 9601, et seq. “Data Quality Objectives” shall m ean those qualitative and quantitative statem ents derived from the outputs of a scientific and legally defensible data collection planning process. “Day” shall m ean a calendar day unless expressly stated otherwise. “Ef f

ective Date” shall be the date on which EPA signs this AOC f o llowing the public com m e nt period which is held pursuant to Section XXVIII (Public Com m e nt on this AOC). “AOC” shall m ean this Adm i nistrative Order on Consent, any am endm ents thereto, and any docum ents incorporated by reference into this AOC. “RCRA” shall m ean the Resource Conservation and Recovery Act (also known as the Solid W a ste Disposal Act), as am ended, 42 U.S.C. § 6901, et seq. “Site” shall m ean [describe the actual physical area to be addressed under this AOC, e.g. includes the 1 1/4 mile radius area in all directions from the Washington Monument] , encomp assing approxim a tely __ acres, located at -3

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product [address or description of location] in [nam e of city], __________County, [nam e of state]. “SOW ” shall m ean Scope of W o rk that m a y be attached to this AOC. “W ork” shall m ean all the activities and requirem e nts specif i ed in this AOC including, but not lim ited to [OPTIONAL: the SOW provided as Attachment A to this AOC and in] Section VIII (W ork To Be Perform e d) of this AOC. V. FINDINGS OF FACT 12. [NOTE: This section should include facts necessary to substantiate that the past or present handling, storage, treatment, transportation or disposal of material, w h ich is a solid w a ste, and if relevant, a haz a rdous w a ste, may present an imminent and substantial endangerment, and that Respondent is a person w h o has contributed or w h o is contributing to such handling, storage, treatment, transportation, or disposal, and that the actions required under this AOC by EPA are necessary to protect public health, the environment or both. The October 1997 “Guidance on the Use of Section 7003 of RCRA” is recommended for assistance in preparing this section. Information should be included on the contamination, description of the Site and its surroundings, description of contaminated media, discussion of exposure pathw ays, w o rk in progress at the Site, enforcement history (e.g., prior orders, consent decrees or permits), cleanup activity, description of w a ste material of concern, Respondent’s business status (e.g., operational or bankrupt) and nature of the business. A finding of fact should be included for each of the follow i ng: 1) Conditions may present an imminent and substantial endangerment to health or the environment. Element 1 should include a show ing of “endangerment” w h ich is an actual, threatened, or potential harm to health or the environment. Neither certainty nor proof of actual, present harm is necessary, only a risk of harm. An endangerment is “imminent” if present conditions indicate that there may be future risk to health or the environment, even though the harm may not be realiz ed for years. An endangerment is “substantial” if there is reasonable cause for concern that health or the environment may be seriously harmed. 2) This potential endangerment stems from the past or present handling, storage, treatment, transportation, or disposal of any solid or haz a rdous

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-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product

wa s t e . Element 2 should include facts show ing: a) the type of handling, storage, treatment, transportation and/or disposal that has occurred in the past or is occurring in the present; b) the material of concern is a solid w a ste as defined in RCRA § 1004(27) because it is discarded; c) if applicable, the material of concern is a haz a rdous w a ste as defined in RCRA § 1004(5); and, d) the potential endangerment is caused by that past/present handling, storage, treatment, transportation or disposal of a solid [and if applicable, haz a rdous] w a ste. 3) Respondent is a person w h o has contributed or is contributing to such handling, storage, treatment, transportation, or disposal. Element 3 should include facts show ing: a) Respondent is or has had a role/share in the past/present handling, storage, treatment, transportation, and/or disposal that caused the potential endangerment; and, b) Respondent is a person as defined by RCRA § 1004(15). 4) This AOC may be necessary to protect public health and the environment.]

VI. CONCLUSIONS OF LAW AND DETERMINATIONS [NOTE: This section should refer to the facts presented in Section V (Findings of Fact) and support the determinations and conclusions being made. ] 13. Based on the Findings of Fact set forth above, and an adm i nistrative record supporting this AOC, EPA has determ ined that:

a. Respondent is a “person” as defined in Section 1004(15) of RCRA, 42 U.S.C. § 6903(15). [OPTIONAL: If Respondent is a past or present generator, transporter, or ow ner or operator of a treatment, storage, or disposal facility, add that

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-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product determination and supporting information here.] b. [Insert w a ste material(s) of concern] is discarded m a terial, and thus a “solid waste” as defined in Section 1004(27) of RCRA, 42 U.S.C. § 6903(27). [OPTIONAL: “Such solid w a ste is also a “haz ardous w a ste” as defined in Section 1004(5) of RCRA, 42 U.S.C. § 6903(5) because [insert appropriate language from Section 1004(5)]. If the w a ste material of concern is a listed or characteristic haz a rdous w a ste or haz a rdous constituent under 40 C.F.R. Part 261, then insert that statement as w e ll.]

c. Im m i nent and Substantial Endangerm ent. The [insert “past” and/or “present” as appropriate ] [insert, as appropriate, one or more of the follow i ng terms that describe the activity causing the potential endangerment: “handling,” “storage,” “treatment,” “transportation,” or “disposal”] of [insert w a ste material of concern] m a y present an im m i nent and substantial endangerm ent to hum an health and/or the environm ent within the m eaning of Section 7003(a) of RCRA, 42 U.S.C. § 6973(a). [Insert a basic explanation of w h y the selected activities may cause the potential endangerment.] d. Respondent [insert “has contributed” and/or “ is contributing” ] to the [insert, as appropriate, one or more of the follow i ng activties identified in Paragraph 13.c. - handling, storage, treatment, transportation, or disposal] by [insert explanation of how Respondent contributed to the handling, storage, treatment, transportation, or disposal causing the potential endangerment]

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e. The actions required by this AOC m a y be necessary to protect [insert “human health” and/or “the environment” as appropriate ] because [insert explanation of w h y this AOC is necessary]

. VII. ORDER ON CONSENT 14. Based upon the adm i nistrative record for the Site and the Findings of Fact (Section V) and Conclusions of Law and Determ inations (Section VI) set forth above, and in consideration of the prom ises set forth herein, the following is hereby agreed to and ordered. Respondent shall comp ly with all provisions of this AOC, including, but not lim ited to, all appendices to this AOC and all docum ents incorporated by reference into this AOC. 15. Respondent shall finance and perform the W o rk in accordance with this AOC, plans, standards, specifications and schedules set forth in this AOC or developed by Respondent and approved by EPA pursuant to this AOC.

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-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product VIII. WORK TO BE PERFORMED 16. Project Coordinator. On or before the Effective Date of this AOC, Respondent shall designate its Project Coordinator. Respondent shall notify EPA in writing within five (5) days of the Effective Date of this AOC of the nam e , address, phone num ber, electronic m a il address and qualifications of its Project Coordinator. The EPA Project Coordinator will be [insert name, address, phone number, and electronic mail address]

. EPA m a y also designate an Alternate Project Coordinator. Each Project Coordinator shall be responsible for overseeing the im plem entation of this AOC. EPA and Respondent have the right to change their respective Project Coordinators. The other party mu st be notified in writing at least 10 days prior to the change. 17. EPA will approve/disapprove of Responde nt’s Project Coordinator (original or replacem ent) based upon the person’s qualifications and ability to effectively perform this role. The qualifications of the persons undertaking the W o rk for Respondent shall be subject to EPA’s review, for verification that such persons m eet m i nimu m technical background and experience requirem e nts of the EPA. All persons under the direction and supervision of Respondent’s Project Coordinator mu st possess all necessary professional licenses required by federal and state law. 18. The EPA Project Coordinator shall be EPA’s designated representative for the Site. Unless otherwise provided in this AOC, all reports, correspondence, notices, or other subm ittals relating to or required under this AOC shall be in writing and shall be sent to the EPA Project Coordinator at the address specified in Paragraph 16, unless notice is given in writing to Respondent of a change in address. Reports, correspondence, notices or other subm ittals shall be delivered by U.S. Postal Service, private courier service or electronic m a il. All correspondence shall include a reference to the case caption EPA Docket No. RCRA 7003 - [insert the docket number of this AOC]. 19. Respondent shall undertake and comp lete all of the W o rk to the satisfaction of EPA, pursuant to RCRA § 7003, 42 U.S.C. § 6973. All of the W o rk perform e d under this AOC shall be under the direction and supervision of Respondent’s Project Coordinator and shall be in accordance with the term s of this AOC. [OPTIONAL: Within 25 days of the Effective Date of this AOC, Respondent shall notify EPA in w r iting of the names, titles and qualifications of the personnel, including agents, contractors, subcontractors, consultants and laboratories, to be used in carrying out theWork.] 20. Respondent’s obligation to perform the W o rk will begin on the Effective Date of this AOC. [NOTE: If the description of the Work to be performed is short then it may be included -7

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product here instead of developing a SOW.] 21. The W o rk undertaken pursuant to this AOC shall be conducted in comp liance with all applicable EPA guidances, policies and procedures, and with this AOC, and is subject to EPA approval. 22. The W o rk Plan shall include a schedule of the W o rk to be perform e d. The W o rk Plan shall be subm itted to EPA f o r approval. Following EPA’s approval or m odif i cation of the W o rk Plan pursuant to Paragraph 25, Respondent shall im plem ent the W o rk Plan in accordance with the schedule and provisions approved by EPA. [NOTE: If a SOW is not necessary because th e Work to be performed is incorporated into this AOC, then a schedule of the Work to be performed should be presented as an appendix and incorporated into this AOC by reference.] 23. Health and Safety Plan. Respondent shall develop a Health and Safety Plan and it shall be implem ented during the W o rk perform e d under this AOC. The Health and Safety plan shall comp ly with applicable Occupational Saf e ty and Health Adm i nistration (OSHA) regulations. IX. EPA APPROVAL OF DELIVERABLES [NOTE: Regions may opt to include langu age requiring Respondent to provide the state/tribe w i th copies of all submittals. This Section may not be applicable if the Work to be performed does not include deliverables.] 24. Deliverables required by this AOC shall be subm itted to EPA f o r approval or m odification pursuant to Paragraph 25. All deliverables mu st be received at EPA by the due date specified in this AOC or by schedules developed pursuant to this AOC. 25. Af ter review of any deliverable that is required pursuant to this AOC, EPA will: (a) approve, in whole or in part, the subm ission; (b) approve the subm ission upon specified conditions; (c) m odify the subm ission to cure the deficiencies; (d) disapprove, in whole or in part, the subm ission, directing that Re spondent m odify the subm ission; or (e) any com b ination of the above. However, EPA will not m odify a subm ission without first providing Respondent at least one notice of deficiency and an opportunity to cure within 10 days, except where EPA determ ines that to do so would cause serious disruption to the W o rk or where EPA has disapproved previous subm ission(s) due to m a terial defects and EPA determ ines that the deficiencies in the subm ission under consideration indicate a bad faith lack of effort to subm it an acceptable deliverable.

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-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product 26. In the event of approval, approval upon conditions, or m odification by EPA, pursuant to Paragraph 25(a), (b), or (c), Respondent shall proceed to take any action required by the deliverable, as approved or m odified by EPA subject only to Respondent’s right to invoke the Dispute Resolution procedures set forth in Section XVIII (Dispute Resolution) with respect to the m odifications or conditions m a de by EPA. In the event that EPA m odifies the subm ission to cure the deficiencies pursuant to Paragraph 25(c) and EPA determ ines the subm ission has a m a terial defect, EPA retains its right to seek stipulated penalties, as provided in Section XIX (Penalties). 27. Resubm ission of Deliverable

. Upon receipt of a notice of disapproval, in whole or in part, pursuant to Paragraph 25(d), Respondent shall, within 10 days or such longer tim e as specified by EPA in such notice, correct the deficiencies and resubm it the deliverable for approval. Any stipulated penalties applicable to the subm ission, as provided in Section XIX (Penalties), shall accrue during the 10-day opportunity to cure period or otherwise specified period but shall not be payable unless the resubm ission is disapproved or m odified due to a m a terial defect as provided in Paragraphs 25 and 26. 28. Notwithstanding the receipt of a notice of disapproval pursuant to Paragraph 25(d), Respondent shall proceed, at the direction of EPA, to take any action required by any non-deficient portion of the subm ission. Im plem entation of any non-deficient portion of a subm ission shall not relieve Respondent of any liability for stipulated penalties for the deficient portion of the deliverable under Section XIX (Penalties). 29. In the event that a resubm itted deliverable, or portion thereof, is disapproved by EPA, EPA m a y again require Respondent to correct the deficiencies, in accordance with the preceding Paragraphs. EPA also retains the ri ght to m odify or develop the plan, report or other item

. Respondent shall implem ent any action as required in a deliverable which has been m odified or developed by EPA, subj ect only to Respondent’s right to invoke the procedures set forth in Section XVIII (Dispute Resolution). 30. If upon resubm ission, a deliverable is disapproved or m odified by EPA due to a m a terial defect, Respondent shall be deem ed to have failed to subm it such deliverable tim ely and adequately unless Respondent invokes the dispute resolution procedures set forth in Section XVIII (Dispute Resolution) and EPA' s action to disapprove or m odify a deliverable is overturned pursuant to that Section. The provisions of Section XVIII (Dispute Resolution) and Section XIX (Penalties) shall govern the im plem entation of the W o rk and accrual and paym ent of any stipulated penalties during Dispute Resolution. If EPA' s disapproval or m odification is upheld, stipulated penalties shall accrue for such violation f r om the date on which the initial subm ission was originally required, as provided in Section XIX (Penalties).

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-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product 31. All deliverables required to be subm itted to EPA under this AOC, shall, upon approval or m odification by EPA, be incorporated into and be enforceable under this AOC. In the event EPA approves or m odif i es a portion of a deliverable required to be subm itted to EPA under this AOC, the approved or m odified portion shall be enforceable under this AOC. X. MODIFICATION OF THE WORK PLAN [NOTE: This section may not be necessary if a SOW is not needed because the Work to be performed is incorporated into Section VIII (Work To Be Performed) of this AOC.] 32. If at any tim e during the implem entation of the W o rk, Respondent identifies a need for a comp liance date m odification or revision of the W o rk Plan, Respondent shall subm it a m e m o randum docum enting the need for the m odification or revision to the EPA Project Coordinator. EPA in its discretion will determ ine if the m odif i cation or revision is warranted and m a y provide written approval or disapproval. Any approved m odif i ed comp liance date or W o rk Plan m odification is incorporated by reference into this AOC. 33. Em ergency Response. In the event of any action or occurrence during the perform a nce of

the W o rk that constitutes an em ergency situation or m a y present an im m e diate threat to hum an health and the environm ent, Respondent shall im m e diately take all appropriate action to m i nim i ze such em ergency or threat, and shall im m e diately notify the EPA' s Project Coordinator. Respondent shall take such im m e diate and appropriate actions in consultation with EPA' s Project Coordinator. Respondent shall then subm it to EPA written notif ication of such em ergency or threat at the Site within three (3) calendar days of such discovery. Respondent shall thereafter subm it to EPA for approval, within 20 days, a plan to m itigate this threat. EPA will approve or m odif y this plan, and Respondent shall implem ent this plan as approved or m odified by EPA. In the case of an extrem e em ergency, Respondent m a y act as it deem s appropriate, at its own risk, to protect hum an health or the environm ent. 34. [OPTIONAL: Imminent and Substantial Endangerment due to Haz a rdous Waste , not required if material of concern is only a Solid Waste: Upon receipt of information that there is haz a rdous w a ste at the Site w h ich has presented an imminent and substantial endangerment to human health or the environment, Respondent shall immediately provide noti ce to EPA and [insert appropriate local government agency]. Respondent shall al so immediately post a notice of the endangerment at the Site.]

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-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product XI. QUALITY ASSURANCE [NOTE: This section may not be applicable for all AOCs.] 35. As part of the W o rk Plan, Respondent shall include a Quality Assurance Project Plan (QAPP), f o r EPA review and approval. The QAPP shall address quality assurance, quality control, and chain of custody procedures for all samp ling, m onitoring and analytical activities. Respondent shall follow “EPA Requirem e nts for Quality Assurance Project Plans” (QA/R5)” (EPA/240/ B-01/003, March 2001), “Guidance for Quality Assurance Project Plans (QA/G-5)” (E PA/600/R-98/018, February 1998), and “EPA Requirem e nts for Quality Managem e nt Plans (QA/R-2)” (EPA/240/b-01/002, March 2001) as well as other applicable docum ents identified by EPA. The QAPP shall be incorporated into this AOC by reference. 36. As part of the W o rk Plan, Respondent shall include Data Quality Objectives for any data collection activity to ensure that data of known and appropriate quality are obtained and that data are sufficient to support their intended use as required by this AOC. 37. Respondent shall ensure that laboratories used by Respondent for analysis perform such analysis according to the latest approved edition of "Test Methods for Evaluating Solid W a ste (SW

- 846)" or other m e thods approved by EPA. If m e thods other than EPA m e thods are to be used, Respondent shall specify all such protocols in the applicable W o rk Plan. EPA m a y reject any data that does not m eet the requirem e nts of the approved W o rk Plan and EPA analytical m e thods and m a y require resamp ling and additional analysis. 38. Respondent shall ensure that all laboratories it uses for analyses participate in a quality assurance/quality control (QA/QC) program equivalent to the program that EPA f o llows. Respondent shall, upon EPA’s request, m a ke arrangem e nts for EPA to conduct a perform a nce and QA/QC audit of the laboratories chosen by Respondent, whether before, during, or after samp le analyses. Upon EPA’s request, Respondent shall have its laboratories perform analyses of samp les provided by EPA to dem onstrate laboratory QA/QC and perform a nce. If the audit reveal s deficiencies in a laboratory' s perform a nce or QA/QC, Respondent shall subm it a plan to address the deficiencies and EPA m a y require resamp ling and additional analysis. 39. EPA reserves the right to require a change in laboratories for reasons which m a y include, but shall not be lim ited to, QA/QC, perform a n ce, conflict of interest, or confidential agency audit inform ation. In the event EPA requires a laboratory change, Respondent shall propose two alternative laboratories within 30 calendar days. Once EPA approves of the laboratory change, Respondent shall ensure that laboratory service shall be m a de -11

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product available within 15 calendar days. XII. ADMINISTRATIVE DOCUMENTATION [NOTE: The compilation of administrative documentation (an administrative record) is not statutorily required but is recommended by headquarters.] 40. EPA retains the responsibility for the issuance of any decision docum ents related to the Site. 41. EPA will provide Respondent with copies of all decision docum ents for the Site. 42. Subm ission of Docum e ntation. EPA will determ ine the contents of the adm i nistrative record file for selection of the rem e dial action. Respondents shall subm it to EPA docum ents developed during the course of perform i ng the W O RK upon which selection of the response action m a y be based. EPA will m a intain an adm i nistrative record file. The adm i nistrative record supporting this AOC and the W o rk to be perform e d shall be available for public review at [insert the address of one or more locations w i th times and days that the record w ill be available. Locations may be near the regional office and/or near the site.] XIII. DOCUMENT CERTIFICATION 43. Any report or other docum ent subm itted by Respondent pursuant to this AOC which m a kes recom m e ndations as to whether or not further actions are necessary, or m a kes any representation concerning Respondent' s comp liance or noncompliance with any requirem e nt of this AOC shall be certified by a responsible corporate officer of Respondent. A responsible corporate officer m eans: a president, secretary, treasurer, or vice-president in charge of a principal business function, or any other person who perform s sim ilar policy or decision-m a king functions. 44. The certification required by Paragraph 43 above, shall be in the following form : I certify under penalty of law that this docum ent and all attachm e nts were prepared under m y direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the inform ation subm itted. Based on m y inquiry of the person or persons who m a nage the system , or those persons directly responsible for gathering the inform ation, the inform ation subm itted is, to be the best of m y knowledge and belief, true, accurate, and comp lete. I am aware that there are significant penalties for subm itting false inform ation, including the possibility of fine and imprisonm ent -12

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product for knowing violations. Signature:________________________ Nam e :
________________________ Title:

_________________________ Date:

_________________________

XIV. SAMPLING, ACCESS AND DATA AVAILABILITY 45. All results of samp ling, testing, m odeling or other data generated (including raw data if requested) by Respondent, or on Respondent’s behalf, during im plem entation of this AOC shall be validated by Respondent and subm itted to EPA within 30 days of Respondent’s receipt of the data. Respondent shall tabulate data chronologically by m e dia. EPA will m a ke available to Respondent data generated by EPA for the purposes of oversight of the W o rk unless it is exempt from disclosure by any federal or state law or regulation. [NOTE: EPA has the discretion to validate data prior to making it available to Respondent.] 46. Respondent shall orally notify EPA at least 20 days prior to conducting field sam p ling. At EPA’s request, Respondent shall allow split or duplicate sam p les to be taken by EPA or EPA’s representative. 47. Site Access. Pursuant to RCRA § 3007(a), 42 U.S.C. § 6927(a), Respondent shall provide access to the Site at reasonable tim es to EPA, EPA’s contractors and oversight officials. Respondent shall also provide access at reasonable tim es to EPA, EPA’s contractors and oversight officials to all records and docum entation in its possession or control, including those records and docum ents in the possession or control of Respondent’s contractors and employees, related to the conditions at the Site and the actions conducted pursuant to this AOC. Respondent shall use its best efforts to gain access to areas owned by or in the possession of som e one other than Respondent, as necessary to implem ent this AOC, as described in Paragraph 49. Such access shall be provided to EPA, its contractors and oversi ght officials. These individuals shall be perm itted to m ove freely about the Site and appropriate off-site areas in order to conduct actions that EPA determ ines to be necessary. [NOTE: Regions may opt to include language providing states/tribes access to the Site.] EPA, its contractors and oversight officials shall notify Respondent of their presence on the Site by presenting their credentials. All parties with access to the Site under this paragraph shall comp ly with all -13

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product approved health and safety plans and regulations. 48. Pursuant to this Section, any denial of access at reasonable tim es to any portion of the Site property where a request for access was m a de for the purposes of enforcing the requirem e nts of RCRA or this AOC shall be construed as a violation of the term s of this AOC subject to the penalty provisions outlined in Section XIX (Penalties) of this AOC. 49. Access Agreem ents. W h ere action under this AOC is to be perform e d in areas owned by, or in possession of, som e one other than Respondent, Respondent shall use its best efforts to obtain all necessary access agreem ents within 45 days of approval of any W o rk Plan for which access is necessary or as otherwise specified, in writing, by the EPA Project Coordinator. Any such access agreem ent shall provide for access by EPA and its representatives to m ove freely in order to conduct actions that EPA determ ines to be necessary. The access agreem ent shall specify that Respondent is not EPA’s representative with respect to any liabilities associated with activities to be perf orm e d. Respondent shall provide EPA’s Project C oordinator with copies of any access agreem ents. Respondent shall im m e diately notify EPA if after using Respondent’s best efforts it is unable to obtain such agreem ents within the tim e required. Best efforts as used in this paragraph shall include, at a m i nimu m , a certified letter from Respondent to the present owner of such property requesting access agreem ents to perm it Respondent, EPA, and EPA’s authorized representatives to enter such property, and the offer of paym ent of reasonable sum s of m oney in consideration of granting access. Respondent shall, within 10 days of its receipt of a denial of access, subm it in writing, a description of its efforts to obtain access. EPA m a y, at its discretion, assist Respondent in obtaining access. In the event EPA obtains access, Respondent shall undertake the W o rk on such property and Respondent shall reim burse EPA for all costs and attorney fees incurred by the United States in obtaining such access. 50. Confidential Business Inform ation. Respondent m a y assert a claim of business conf identiality covering part or all of the inf o rm ation subm itted to EPA pursuant to the term s of this AOC under 40 CFR § 2.203 in the m a nner described at 40 CFR § 2.203(b) and substantiated with the inform ation described at 40 CFR 2.204(e)(4). Inform ation EPA determ ines is conf idential will be given the protection specif ied in 40 CFR Part 2. If no such claim or substantiation accomp anies the inform ation when it is subm itted to EPA, it m a y be m a de available to the public by EPA or the state without further notice to Respondent. Respondent agrees not to assert confidentiality claim s with respect to any data related to Site conditions, samp ling, m onitoring or the W o rk perform e d pursuant to this AOC. 51. Privileged Docum e nts. Respondent m a y assert that certain docum ents, records and other inform ation are privileged under the attorney-client privilege or any other privilege -14

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product recognized by federal law. If Respondent asserts such a privilege in lieu of providing docum ents, Respondent shall provide EPA with the following: (1) the title of the docum ent, record, or inform ation; (2) the date of the docum ent, record, or inform ation; (3) the author’s nam e and title; (4) the nam e and title of each addressee and recipient; (5) a description of the contents; and (6) the privilege asserted by Respondent. However, no docum ents, reports or other inform ation created or generated pursuant to the requirem e nts of this AOC shall be withheld on the grounds that they are privileged. 52. All data, inform ation, and records created or m a intained relating to any Solid or Hazardous W a ste found at the Site shall be m a de available to EPA upon request unless Respondent asserts a claim that such docum ents are legally privileged from disclosure. Respondent shall have the burden of dem onstrating to EPA by clear and convincing evidence that such privilege exists. 53. No claim of confidentiality shall be m a de with respect to any data, including, but not lim ited to, all samp ling, analytical, m onitoring, hydrogeologic, scientific, chem ical, or engineering data, or any other docum ents or inform ation evidencing conditions at or around the Site. 54. Nothing in this AOC shall be construed to lim it EPA’s right of access, entry, inspection, and inform ation gathering pursuant to applicable law, including but not lim ited to RCRA and CERCLA. XV. COMPLIANCE WITH OTHER LAWS 55. Respondent shall perform all actions required pursuant to this AOC in accordance with all applicable local, state, and federal laws and regulations. Respondent shall obtain or cause its representatives to obtain all perm its and approvals necessary under such laws and regulations in a tim ely m a nner so as not to delay the W o rk required by this AOC. [NOTE: RCRA § 7003(a) allow s for a w a iver of otherw ise applicable RCRA requirements. Any RCRA requirements so waived should be specified in this section.] XVI. RECORD RETENTION 56. Respondent shall preserve all docum ents and inform ation, including raw data, relating to the W o rk perform e d under this AOC, or relating to any solid waste or hazardous waste found at the Site, for 10 years following comp letion of the W o rk required by this AOC. 57. Respondent shall acquire and retain copies of all docum ents that relate to the Site that are in the possession of its employees, agents, accountants, contractors or attorneys. -15

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product

58. Respondent shall m a ke available to EPA all employees and persons, including contractors, who engage in activities under this AOC and ensure their cooperation with EPA with respect to this AOC. 59. After the 10 year retention period and 90 days before any docum ent or inform ation is destroyed, Respondent shall notify EPA that such docum ents and inform ation are available to EPA for inspection, and upon request, shall provide the originals or copies (at no extra cost) of such docum ents and inform ation to EPA. Notification shall be in writing and shall reference the effective date, caption, and docket num ber of this AOC and shall be addressed to the [insert appropriate regional manager title]

. In addition, Respondent shall provide docum ents and inform ation retained under this Section at any tim e bef o re expiration of the 10 year retention period at the written request of EPA. 60. All docum ents pertaining to this AOC shall be stored by Respondent in a centralized location at the Site, or an alternative location mu tually approved by Respondent and EPA, to prom ote easy access by EPA or its representatives. XVII. REIMBURSEMENT OF OVERSIGHT COSTS [NOTE: This section is optional depe nding on regional practices. Headquarters recommends oversight cost provisions be include d in the AOC if a significant accrual of oversight costs is expected.] 61. EPA reserves the right to bring an action against Respondent under any applicable law for recovery of all response costs, including oversight costs, and past costs incurred by EPA with respect to the Site that have not been reim bursed by Respondent; any costs incurred in the event that EPA perform s the SOWor any part thereof; and any costs incurred by EPA in connection with any other response activities conducted at this Site. Oversight costs shall m ean costs that EPA incurs in m onitoring and supervising Respondent’s perform a nce of the W o rk to determ ine whether such perform a nce is consistent with the requirem e nts of this AOC, including costs incurred in reviewing plans, reports and other docum ents subm itted pursuant to this AOC, as well as costs incurred in overseeing implem entation of the W o rk. 62. Respondent agrees to pay EPA for oversight costs associated with the implem entation and execution of this AOC, in the following m a nner: A. Upon EPA’s written request, Respondent shall pay such costs. On a periodic basis, EPA will send Respondents a bill requiring paym ent that includes a [insert the name of a standard Regionally-prepared cost summary]. -16

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product [NOTE: The cost summary should include direct and indirect costs incurred by EPA and its contractors.] B. Paym ents for all EPA oversight costs shall be m a de by m oney order, certified check, comp any check, electronic funds transfer, or cashier' s check payable to the Treasurer of the United States within thirty (30) days of Respondent' s receipt of EPA' s request, and shall be subm itted to the f o llowing address: Regional Hearing Clerk (#C) U.S. EPA, Region # P.O. Box XXXXXXM Pittsburgh, PA 15251 C. Docket No. [insert this AOC docket number] should be clearly typed on the check to ensure proper credit. Respondent shall send simu ltaneous notices of such paym ents, including copies of the m oney order, certified check, comp any check, electronic funds transfer, or cashier' s check to the following: [insert regional manager title(s) and office(s)] U.S. EPA, Region [insert region] [insert regional address] D. If EPA does not receive paym ent within th irty (30) days of Respondent' s receipt of EPA' s request for oversight costs, interest shall accrue at the Current Value of Funds Rate established by the Secretary of the Treasury. An additional penalty of six percent (6 %) per annum on any unpaid principal shall be assessed for any oversight cost paym ent which is overdue for ninety (90) days or m o re [pursuant to 31 U.S.C. § 3717]. XVIII. DISPUTE RESOLUTION 63. Respondent shall raise any disputes concerning the W o rk required under this AOC to EPA (excluding any decision docum ent(s) issued by EPA), in writing, within 15 days after receiving written notice from EPA regarding any aspect of the W o rk required under this AOC that Respondent disputes. EPA and Respondent shall expeditiously and inform ally attemp t to resolve any disagreem ents. EPA and Respondent Project Coordinators shall first confer in an effort to resolve the dispute. If the Project Coordinators are unable to inform ally resolve the dispute within 3 days of the first conference, Respondent shall notify EPA, within 5 days, in writing of its objections. W r itten objections shall identify Respondent’s objections, state the basis for those objections, and provide all data, analyses and inform ation relied upon by Respondent. EPA and Respondent then have an additional 14 days from EPA’s receipt of the objections to reach agreem ent. If an agreem ent is not reached within the 14 days, Respondent m a y request in writing, within 5 days, a determ ination resolving the dispute -17

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product by EPA’s Division Director of [insert appropriate regional title]

. The request should provide all inform ation that Respondent believes is relevant to the dispute. If such request is subm itted within 5 days, the Division Director shall issue a determ ination in writing. EPA’s final decision shall be incorporated into and becom e an enforceable part of this AOC and shall no longer be subject to dispute pursuant to this AOC. Respondent shall proceed in accordance with the Division Director’s decision regarding the m a tter in dispute, regardless of whether Respondent agrees with the decision. If Respondent does not agree to perform or does not actually perform the W o rk in accordance with EPA’s decision, EPA reserves the right in its sole discretion to conduct the W o rk itself, seek reim bursem e nt from Respondent, seek enforcem ent of this AOC, seek stipulated penalties, and/or any other appropriate relief. Any disputes arising under this AOC are not subject to judicial review until such tim e as EPA seeks to enf o rce this AOC. 64. If EPA and Respondent reach agreem ent on the dispute at any stage, the agreem ent shall be set forth in writing and shall, upon signature of both parties, be incorporated into and becom e an enforceable part of this AOC. 65. The existence of a dispute and EPA’s consideration of m a tters placed in dispute shall not excuse, toll, or suspend any comp liance obligation or deadline required pursuant to this AOC during the pendency of the dispute resolution process except as agreed by EPA in writing. The invocation of dispute resolution does not stay the accrual of stipulated penalties under this AOC. XIX. PENALTIES 66. Stipulated Penalties. Any tim e Respondent fails to comp ly with any requirem e nt of this AOC, Respondent shall be liable for stipulated penalties in the am ounts set forth in this section unless a Force Majeure event has occurred as defined in Section XX (Force Majeure) and EPA has approved the extension of a deadline as required by Section XX (Force Majeure). Comp liance with this AOC by Respondent shall include comp letion of an activity or any m a tter under this AOC in accordance with this AOC, and within the specified tim e schedules approved under this AOC. [Insert specific stipulated penalty inform ation based on deliverables required by this AOC.] 67. Penalties shall begin to accrue on the day after the com p lete perform a nce is due or the day a violation occurs, and shall continue to accrue through the final day of correction of the violation or comp letion of the activity. Paym ent shall be due within 30 days of receipt of a dem a nd letter from EPA. Nothing herein shall prevent the simu ltaneous accrual of separate stipulated penalties for separate violations of this AOC, even where -18

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product those violations concern the sam e event (e.g., subm ission of a W o rk Plan that is late and is of unacceptable quality). 68. If paym ent is not m a de within 30 days of the date of Respondent’s receipt from EPA of a written dem a nd f o r paym ent of the penalties or of the date of agreem ent or decision resolving the dispute, interest shall begin to accrue on any unpaid stipulated penalty balance beginning on the first day after Respondent’s receipt of EPA’s dem a nd letter, or the date of the agreem ent or decision resolving the dispute, and will accrue until such penalties and interest have been paid in full. Interest shall accrue at the Current Value of Funds Rate established by the Secretary of the Treasury. An additional penalty of six percent (6 %) per annum on any unpaid principal shall be assessed for any stipulated penalty paym ent which is overdue for ninety (90) days or m o re. The applicable rate of interest shall be the rate in effect at the tim e the interest accrues [pursuant to 31 U.S.C. § 3717]. 69. Respondent shall m a ke paym ents by m oney order, certified check, comp any check, electronic funds transfer, or cashier' s check payable to the Treasurer of the United States within thirty (30) days of Respondent' s receipt of EPA' s request, and shall be subm itted to the f o llowing address: Regional Hearing Clerk (#C) U.S. EPA, Region # P.O. Box XXXXXXM Pittsburgh, PA 15251 70. Docket No. [insert this AOC docket number] should be clearly typed on the check to ensure proper credit. Respondent shall send simu ltaneous notices of such paym ents, including copies of the m oney order, certified check, comp any check, electronic funds transfer, or cashier' s check to the following: [insert regional manager title(s) and office(s)] U.S. EPA, Region [insert region] [insert regional address] 71. Respondent m a y dispute an EPA determ ination that it failed to comp ly with this AOC by invoking the dispute resolution procedures under Section XVIII (Dispute Resolution) unless the m a tter has already been in or is the subject of dispute resolution. Penalties shall accrue but need not be paid during the dispute resolution period. If Respondent does not prevail upon resolution, all penalties shall be due to EPA within 30 days of resolution of the dispute. If Respondent prevails upon resolution, no penalties shall be paid. In the event that Respondent prevails in part, penalties shall be due on those m a tters in which Respondent did not prevail.

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-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product 72. Neither the invocation of dispute resolution nor the paym ent of penalties shall alter in any way Respondent' s obligation to comp ly with the term s and conditions of this AOC. The stipulated penalties set f o rth in this Secti on do not preclude EPA f r om pursuing any other rem e dies or sanctions which m a y be available to EPA by reason of Respondent' s failure to comp ly with any of the term s and conditions of this AOC. 73. No paym ents under this Section shall be deducted for federal tax purposes. 74. Notwithstanding any other provision of this section, EPA m a y, in its unreviewable discretion, waive any portion of stipulated penalties that have accrued pursuant to this AOC. 75. Civil Penalties. Violation of this AOC m a y subject Respondent to civil penalties of at least six thousand five hundred dollars ($ 6,500.00) per violation per day. The assessm ent of penalties are provided for in Section 7003(b) of RCRA, 42 U.S.C. § 6973(b), as adjusted pursuant to the Federal Civil Penalties Inflation Adjustm e nt Act of 1990, as am ended by the Debt Collection Improvem e nt Act of 1996, 28 U.S.C. § 2461 note. Should Respondent violate this AOC orany portion hereof, EPA m a y carry out the required actions unilaterally, pursuant to any applicable authorities, and/or m a y seek judicial enforcem ent of this AOC. XX. FORCE MAJEURE 76. Respondent agrees to perform all requirem e nts under this AOC within the tim e lim its established under this AOC, unless the perform a nce is delayed by a force m a jeure. For purposes of this AOC, a force m a jeure is defined as any event arising from causes beyond the control of Respondent, or any entity controlled by Respondent or Respondent’s contractors, which delays or prevents perform a nce of any obligation under this AOC despite Respondent' s best efforts to fulfill the obligation. The requirem e nt that the Respondent exercise “best efforts to fulfill the obligation” includes using best efforts to anticipate any potential force m a jeure event and best efforts to address the effects of any potential force m a jeure event: (1) as it is occurring, and (2) following the potential force m a jeure event, such that the delay is m i nim i zed to the greatest extent possible. Force m a jeure does not include f i nancial inability to comp lete the W o rk, increased cost of perform a nce, changes in Respondent’s business or econom ic circum stances, or inability to attain m e dia cleanup standards. 77. If any event occurs or has occurred that m a y delay the perform a nce of any obligation under this AOC, whether or not caused by a force m a jeure event, Respondent shall orally notify EPA within 48 hours of when Respondent knew or should have known that the event m i ght cause a delay. Such notice shall: (1) identif y the event causing the delay, or -20

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product anticipated to cause delay, and the anticipated duration of the delay; (2) provide Respondent’s rationale for attributing such delay to a force m a jeure event; (3)state the m easures taken or to be taken to prevent or m i nim i ze the delay; (4) estim ate the tim etable for implem entation of those m easures; and (5) state whether, in the opinion of Respondent, such event m a y cause or contribute to an endangerm ent to public health or the environm ent. Respondent shall undertake best efforts to avoid and m i nim i ze the delay. Failure to comp ly with the notice provision of this paragraph and to undertake best efforts to avoid and m i nim i ze the delay shall waive any claim of force m a jeure by Respondent. Respondent shall be deem ed to have notice of any circum stances of which its contractors had or should have had notice. 78. If EPA determ ines that a delay in perf orm a nce or anticipated delay in f u llf illing a requirem e nt of this AOC is or was attributable to a force m a jeure, then the tim e period f

o r perf orm a nce of that requirem e nt will be extended as deem ed necessary by EPA. If EPA determ ines that the delay or anticipated delay has been or will be caused by a f o rce m a jeure, then EPA will notify Respondent, in writing, of the length of the extension, if any, for perform a nce of such obligations affected by the force m a jeure. Any such extensions shall not alter Respondent' s obligation to perform or comp lete other tasks required by this AOC which are not directly affected by the force m a jeure. 79. If EPA disagrees with Respondent’s asserti on of a force m a jeure, then Respondent m a y elect to invoke the dispute resolution provision, and shall follow the procedures set forth in Section XVIII (Dispute Resolution). In any such proceeding, Respondent shall have the burden of dem onstrating by a preponderance of the evidence that the delay or anticipated delay has been or will be caused by a f o rce m a jeure, that the duration of the delay or the extension sought was or will be warranted under the circum stances, that Respondent’s best efforts were exercised to avoid and m itigate the effects of the delay, and that Respondent comp lied with the requirem e nts of this section. If Respondent satisf i es this burden, then EPA will extend the tim e f o r perf orm a nce as EPA determ ines is necessary. XXI. RESERVATION OF RIGHTS 80. Notwithstanding any other provisions of this AOC, the United States retains all of its authority to take, direct, or order any and all actions necessary to protect public health or the environm ent or to prevent, abate, or m i nim i ze an actual or threatened release of hazardous substances, pollutants, or contam inants, or hazardous or solid waste or constituents of such wastes, on, at, or from the Site, including but not lim ited to the right to bring enforcem ent actions under RCRA, CE RCLA, and any other applicable statutes or regulations.

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-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product 81. EPA reserves all of its statutory and regulat ory powers, authorities, rights, and rem e dies, both legal and equitable, which m a y pertain to Respondent' s failure to comp ly with any of the requirem e nts of this AOC, including without lim itation the assessm ent of penalties under Section 7003 of RCRA, 42 U.S.C. § 6973. 82. This AOC shall not be construed as a covenant not to sue, release, waiver, or lim itation of

any rights, rem e dies, powers, claim s , and/ or authorities, civil or crim inal, which EPA has under RCRA, CERCLA, or any other statutory, regulatory, or com m on law authority of the United States. 83. This AOC is not intended to be nor shall it be construed to be a perm it. Respondent acknowledges and agrees that EPA' s approval of the W o rk and/or W o rk Plan does not constitute a warranty or representation that the W o rk and/or W o rk Plans will achieve the required cleanup or perform a nce standards. Comp liance by Respondent with the term s of this AOC shall not relieve Respondent of its obligations to comp ly with RCRA or any other applicable local, state, or federal laws and regulations. 84. Notwithstanding any other provision of this AOC, no action or decision by EPA pursuant to this AOC, including without lim itation, decisions of the Regional Adm i nistrator, the Director [insert proper regional title] , or any authorized representative of EPA, shall constitute f i nal agency action giving rise to any right of judicial review prior to EPA' s initiation of a judicial action to enf o rce this AOC, including an action f o r penalties or an action to comp el Respondent' s comp liance with the term s and conditions of this AOC. XXII. OTHER CLAIMS 85. By issuance of this AOC, the United States and EPA assum e no liability f o r injuries or dam a ges to persons or property resulting from any acts or om issions of Respondent. The United States or EPA will not be deem ed a party to any contract, agreem ent or other arrangem e nt entered into by Respondent or its officers, directors, employees, agents, successors, assigns, heirs, trustees, receivers, contractors, or consultants in carrying out actions pursuant to this AOC. 86. Respondent waives all claim s against the United States relating to or arising out of conduct of this AOC, including, but not lim ited to, contribution and counterclaim s . 87. Respondent shall bear their own litigation costs and attorney fees. 88. In any subsequent adm i nistrative or judicial proceeding initiated by the United States for injunctive or other appropriate relief relating to the Site, Respondent shall not assert, and m a y not m a intain, any defense or claim based upon the principles of waiver, res judicata , -22

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product collateral estoppel, issue preclusion, claim

- splitting, or other defenses based upon any contention that the claim s raised by the United States in the subsequent proceeding were or should have been raised in the present m a tter. XXIII. INSURANCE 89. Prior to com m e ncing the on-site W o rk under this AOC, Respondent shall secure, and shall m a intain in f o rce f o r the duration of this AOC and f o r 2 years af ter the comp letion of

all activities required by this AOC, comp rehensive general liability insurance and autom obile insurance with lim its of $__ m illion dollars, com b ined single lim it, nam i ng EPA as an additional insured. Prior to com m e ncem ent of the W o rk under this AOC, and annually thereafter on the anniversary of the Effective Date of this AOC, Respondent shall provide EPA with certificates of su ch insurance and a copy of each insurance policy. If Respondent dem onstrates by evidence satisfactory to EPA that its contractors and subcontractors m a intain insurance equivalent to that described above, or insurance covering som e or all of the sam e risks but in an equal or lesser am ount, then Respondent need provide only that portion of the insurance described above which is not m a intained by the contractors and subcontractors. 90. For the duration of this AOC, Respondent shall satisfy, or shall ensure that their contractors or subcontractors satisfy, all applicable laws and regulations regarding the provision of employer’s liability insurance and worker’s comp ensation insurance f o r all persons perform i ng the W o rk on behalf of Respondent, in furtherance of this AOC. 91. At least 7 days prior to com m e ncing the W o rk under this AOC, Respondent shall certify to EPA that their contractors and subcontr actors have obtained the required insurance. XXIV. COST ESTIMATES AND FINANCIAL ASSURANCE [NOTE: EPA should consider including a fi nancial assurance provision in the order if EPA expects that the costs of the remedy w ill be significant. How e ver, financial assurance may be required for corrective action under a RCRA § 7003 AOC only if EPA finds that financial assurance is necessary to protect human health or the environment. Such a finding should be included in Section V (Fi ndings of Fact) and the administrative record should provide facts to support such a conclusion. EPA needs a good cost estimate in order to know how much financial assurance to require.] 92. Cost Estim ates. W ithin thirty (30) days after the Effective Date of this AOC Respondent shall subm it to EPA a detailed written initial estim ate, in current dollars, of the cost of hiring a third party to perform the W o rk described in Section VIII (W ork to be Perform e d) and the attached SOW

. A third party is a party who: (i) is neither a parent -23

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product nor a subsidiary of Respondent and (ii) does not share a com m on parent or subsidiary with Respondent. The initial cost estim ate mu st account for the total costs of the work activities described in Section VIII (W ork to be Perf orm e d) and the SOWf o r the entire period of this AOC, including any necessary long term costs, such as operation and m a intenance costs, m onitoring costs, and institutional controls. The cost estim ate mu st not incorporate any salvage value that m a y be realized f r om the sale of wastes, f acility structures or equipm ent, land or other assets associated with the Site. [NOTE: (1) Where EPA has a good estimate of the costs of the Work prior to signing this AOC, EPA may choose not to require an initial cost estimate. (2) Where the AOC covers several phases of w o rk, and total extent of needed corrective action cannot be know n until investigation phases are complete, EPA may require cost estimates to be done in phases.] 93. Concurrent with the subm ission of any W o rk Plan(s) for additional work required under Section XXVII (Additional W o rk), Respondent shall subm it revised detailed written estim ate(s), in current dollars, of the cost of hiring a third party to perform the W o rk. 94. Respondent mu st annually adjust the cost estim ate(s) for inflation within thirty (30) days after the close of Respondent’s fiscal year until the W o rk required by this AOC is comp leted. In addition, Respondent mu st adjust the cost estim ate if EPA determ ines that any additional work is required, pursuant to Section XXVII (Additional W o rk), or if any other conditions increase the cost of the W o rk to be perform e d under this Consent Order.

95. Respondent shall subm it each cost estim ate to EPA for review, pursuant to Section IX (EPA Approval of Deliverables). [NOTE: The financial assurance mechanism used under RCRA § 7003 may not name EPA as a beneficiary. A trust fund is one mechanism that can be used if the trust agreement is carefully drafted. EPA staff should cons ult w i th OSRE about appropriate trust fund language, w h o may be a named beneficiary for such a trust fund, and w h o may be able to ensure that the trustee administers the fund in accordance w i th the trust agreement. These determinations w ill need to be made based on the specific circumstance of each case. OSRE continues to w o rk w i th OGC/SWE RLO and OGC/FOLO to determine w h ether additional financial assurance mechanisms might be used, and if so, under w h at circumstances. If you have questions about this section, please call Tracy Gipson at 202 - 564-4236.]

96. Assurances of Financial Responsibility for Comp leting the W o rk. In order to secure the -24

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product

comp letion of the W o rk in accordance with this AOC, Respondent shall establish financial assurance in the form of a trust fund adm i nistered by a trustee who has the authority to act as a trustee under federal or state law and whose trust operations are regulated and exam ined by a U.S. federal or state agency and that is acceptable in all respects to the EPA. The trust agreem ent shall provide that the trustee shall m a ke paym ents from the fund only for the costs of perform i ng the W o rk required under this AOC, and only after EPA has advised the trustee that the W o rk has been perform e d in accordance with the requirem e nts of the approved W o rk Plans. The trust agreem ent shall further provide that the trustee shall not refund to the grantor any am ounts from the fund unless and until EPA has advised the trustee that the W o rk under this AOC has been successf ully comp leted. 97. Respondent shall subm it a draft trust agreem ent to EPA for review pursuant to Section IX (EPA Approval of Deliverables) within thirty (30) days af ter the Ef f

ective Date of this AOC, concurrently with Respondent’s subm ission of the initial cost estim ate required by Paragraph 92. The trust agreem ent shall be in form and substance satisfactory to EPA, determ ined in EPA’s sole discretion. 98. W ithin thirty (30) days af ter EPA’s approval of both the initial cost estim ate and the draf t trust agreem ent, whichever date is later, Respondent shall establish a trust fund in an am ount at least equal to the initial cost estim ate approved by EPA. [NOTE: Where EPA has a good estimate of the costs of the Work prior to signing the AOC, the financial assurance should be required to be effective w h en the AOC is effective.] 99. Respondent shall subm it an original copy of the trust agreem ent to [insert name and address of regional financial assurance specialist or coordinator or other person designated to be the custodian of such documents, i.e. attorney]. 100. W h enever the annually adjusted estim ate for the cost of comp leting the rem a ining W o rk exceeds the am ount of financial assurance already provided pursuant to this Section, Respondent shall, within thirty (30) days th ereafter, increase the am ount of the trust fund to cover such cost increase. In addition, in the event that EPA determ ines at any tim e that the financial assurances provided pursuant to this AOC are inadequate (including, without lim itation, the trust agreem ent or the trustee), Respondent shall, within thirty (30) days after receipt of notice of EPA' s determ ination, correct the inadequacy. Furtherm ore, if at any tim e EPA notifies Respondent that the anticipated cost of comp leting the W o rk has increased, then, within thirty (30) days after receipt of such notification, Respondent shall increase the am ount of the trust fund to cover such cost increase. 101. Respondent’s inability to post financial assurance for com p letion of the W o rk shall in no -25

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product way excuse perform a nce of any other requirem e nts of this AOC, including, without lim itation, Respondent’s obligation to comp lete the W o rk in strict accordance with the term s of this AOC. 102. Reduction of Am ount of Financial Assurance

. If Respondent believes that the estim ated cost to comp lete the rem a ining W o rk has dim i nished below the am ount covered by the existing financial assurance provided under this AOC, Respondent m a y, on any anniversary date of the Effective Date of this AOC, or at any other tim e agreed to by EPA and Respondent, subm it a written proposal to EPA to reduce the am ount of the financial assurance provided under this Section to the estim ated cost of the rem a ining W o rk to be perform e d. The written proposal shall specify, at a m i nimu m , the cost of the rem a ining W o rk to be perform e d and the basis upon which such cost was calculated. The decision whether to approve a proposal to reduce the am ount of financial assurance shall be within EPA' s sole discretion and EPA shall notify Respondent of its decision regarding such a proposal in writing. Respondent m a y reduce the am ount of the financial assurance only after receiving EPA’s written decision and only in accordance with and to the extent perm itted by such written decision. In the event of a dispute, Respondent m a y reduce the am ount of the financial assurance required by this Section only in accordance with a final adm i nistrative decision resolving such dispute under Section XVIII (Dispute Resolution) of this AOC. 103. Release of Financial Assurance

. Respondent m a y subm it a written request to the Director, [ insert title ], EPA Region ___, that EPA release Respondent from the requirem e nt to m a intain financial assurance under this Section at such tim e as EPA has provided written notice, pursuant to Section XXVIII (Term i nation and Satisfaction) that Respondent has dem onstrated that all the term s of this Order have been addressed to the satisfaction of EPA. The Director, [ insert title ], shall notify both Respondent and the Trustee in writing that Respondent is released from all financial assurance obligations under this AOC. XXV. INDEMNIFICATION 104. Respondent agrees to indem n ify, save and hold harm less the United States, its officials, agents, contractors, employees, and representatives from any and all claim s or causes of action: (a) arising from , or on account of, acts or om issions of Respondent, Respondent' s directors, officers, employees, agents, successors, assigns, heirs, trustees, receivers, contractors, or consultants in carrying out actions pursuant to this AOC; and (b) for dam a ges or reim bursem e nt arising from or on account of any contract, agreem ent, or arrangem e nt between Respondent and any persons for perform a nce of the W o rk on or relating to the Site, including claim s on account of construction delays. In addition, Respondent agrees to pay the United States all costs incurred by the United States, -26

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product including litigation costs arising from or on account of claim s m a de against the United States based on any of the acts or om issions referred to in the preceding sentence. XXVI. MODIFICATION OF THIS AOC 105. Except for Modification of the W o rk Plan as provided in Section X, this AOC m a y only be m odified by the mu tual agreem ent of EP A and Respondent. Any agreed m odifications shall: be in writing; be signed by both parties; have as their ef f

ective date the date on which they are signed by EPA; and be incorporated into this AOC. 106. No inform al advice, guidance, suggestion, or com m e nt by EPA regarding reports, plans, specifications, schedules, or any other writing subm itted by Respondent shall relieve Respondent of its obligation to obtain such form al approval as m a y be required by this AOC, and to comp ly with all requirem e nts of this AOC unless it is form ally m odified. Any deliverables, plans, technical m e m o randa, reports, specifications, schedules and attachm e nts required by this AOC are, upon approval by EPA, incorporated into and enforceable under this AOC. XXVII. ADDITIONAL WORK 107. EPA m a y determ ine or Respondent m a y propose that certain tasks are necessary in addition to or in lieu of the tasks included in any EPA-approved W o rk Plan when such additional work is necessary to m eet the objectives set forth in Section I (Introduction). EPA m a y determ ine that Respondent shall perform any additional work and EPA will specify, in writing, the basis for its determ ination that any additional work is necessary. W ithin 5 days after the receipt of such determ ination, Respondent shall have the opportunity to m eet or confer with EPA to discuss any additional work. Respondent shall subm it for EPA approval a W o rk Plan for any additional work. Such W o rk Plan shall be subm itted within 10 days of Respondent’s receipt of EPA’s determ ination that any additional work is necessary, or according to an alternative schedule established by EPA. Upon approval of a W o rk Plan for any additional work, Respondent shall implem ent the W o rk Plan for any additional work in accordance with the schedule and provisions contained therein. The W o rk Plan for any additional work shall be incorporated by reference into this AOC. XXVIII. TERMINATION AND SATISFACTION 108. The provisions of this AOC shall be deem ed term inated and satisfied by Respondent upon written notice from EPA that Respondent has dem onstrated that all of the term s of this AOC, including any additional work as m a y be perform e d pursuant to Section XXVII (Additional W o rk) and any stipulated penalties dem a nded by EPA under Section -27

-RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product XIX (Penalties), have been addressed to the satisf action of EPA. Term ination of this AOC shall not term inate Respondent' s obligation to comp ly with: Sections XIV (Sampling, Access and Data Availability); XVI (Record Retention); XXI (Reservation of Rights); and XXV (Indem n ification) of this AOC, [OPTIONAL: and to maintain institutional and engineering controls]. XXIX. PUBLIC COMMENT ON THIS AOC [NOTE: Regions should provide public notice and opportunity to comment. Public notice and opportunity to comment is required by RCRA § 7003(d) if the agreement provides a covenant not to sue.] 109. EPA shall provide public notice, opportunity for a public m eeting and a reasonable opportunity for public com m e nt on the proposed settlem e nt. After consideration of any com m e nts subm itted during a public com m e nt period of not less than 30 days (which EPA m a y extend), EPA m a y withhold consent or seek to am end all or part of this AOC if EPA determ ines that com m e nts received disclose facts or considerations which indicate that this AOC is inappropriate, improper, or inadequate. XXX. SEVERABILITY 110. If a court issues an order that invalidates any provision of this AOC or finds that Respondent has sufficient cause not to comp ly with one or m o re provisions of this AOC, Respondent shall rem a in bound to comp ly with all provisions of this AOC not invalidated or determ ined to be subject to a sufficient cause defense by the court' s order. XXXI. EFFECTIVE DATE 111. This AOC shall be effective when EPA signs this AOC after the public com m e nt period as specified in Section XXIX (Public Com m e nt on This AOC) above. W ithin 2 business days of signing this AOC, EPA will provide Respondent with a copy of the signature page of this AOC signed by the Director [insert appropriate regional title]

. The undersigned representative of Respondent certifies that it is fully authorized to enter into the term s and conditions of this AOC and to bind the party it represents to this docum ent. Respondent agrees not to contest the validity or term s of this AOC, or the procedures underlying or relating to it in any action brought by the United States, including EPA, to enforce its term s orseek penalties for its violation. Respondent retains its right to assert claim s against any third parties with respect to this Site.

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-________________________________

________________________________

________________________________ RCRA Section 7003 Model AOC October 28, 2005 Internal Deliberative - W o rk Product Agreed this ____ day of ____________, 200_.
By:

________________________________ Signature

Print Nam e

Title

Comp any Address It is so ORDERED and Agreed this ____ day of ______________, 200_. By:

________________________________ Date: ___________ [insert name] Director, [insert title] Region __, U.S. Environm ental Protection Agency EFFECTIVE DATE: ___________________

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## RCRA § 7003 AOC FAQs 1. What should be included in the Findings of Fact section?
Answer: Respondent m a y request that certain m a terial facts not be presented in the Findings of Fact Section. In that situation, it m a y be appropriate to present those facts in the Conclusions of Law Section or in an adm i nistrative record. The facts in this section should show that the actions that m a y be required under this AOC are “necessary to protect public health and the environm ent.” This section is the keystone of the AOC and mu st fully and clearly elucidate the situation at the site while providing the three legal elem ents for initiating action under RCRA § 7003. The language presented below is an example of what could be used in the Findings of Fact section. 1. Respondent [individual, trust, firm , join t stock comp any, corporation (including a governm e nt corporation), partnership, a ssociation, State, Municipality, com m i ssion, political subdivision of a State, or any interstate body] [specify type of "person"] is doing business in the State of [State]. Respondent is a corporation incorporated under the laws of the State of [State] and is a "person" as defined in § 1004(15) of RCRA, 42 U.S.C. § 6903(15). 2. Respondent owns/operates a property com m only known as “ ”, consisting of approxim a tely acres, located approxim a tely [give mileage & directions to site or legal la nd descr iption or intersection or street address] in County/Parish/Township [select one] , near the City of , [insert state]

. 3. On or about [insert date(s)] , EPA conducted an inspection at Respondent’s Site. The inspection found and excavated a total of 25 drum s from the Excavation Site. Samp les collected from the liquid in five (5) of the buried drum s exhibited the hazardous waste characteristic of ignitability and toxicity characteristic f o r benzene, identif ied at 40 CFR §§ 261.21 and 261.24. Liquid wastes samp led from two (2) drum s contained hazardous constituents as specified in 40 CFR § 261 Appendix VIII, as sum m a rized below:

a. W a ste liquid samp les exhibited the hazardous waste characteristic of ignitability and toxicity characteristic f o r benzene as f o llows:

DRUM TCLP RESULTS (ppm benzene 1 ) IGNITABILITY L8 604.00 Positive L14 189.00 Positive

1Novem b er 2005

DRUM TCLP RESULTS (ppm benzene 1 ) IGNITABILITY L15 50.40 Positive L16 1.77 Positive L17 8.45 Positive 1 TCLP Regulatory Level for benzene: 0.5 m g /L (0.5 ppm ) b. The waste liquid samp le L005 from Drum L12 contained the following hazardous constituents:

CONSTITUENT C ONCENTRATION (ppm ) 2,4-dim e thylphenol 633.000 2-butanone 1.080 benzene 0.341 butylbenzylphthalate 7.000

m e thylene chloride 1420.000 naphthalene 21.000 phenol 82.000 tetrachloroethene 0.078 toluene 0.830

c. The waste liquid samp le L006 from Drum L13 contained the following hazardous constituents:

CONSTITUENT C ONCENTRA (ppm ) TION

benzene 37.40 toluene 27.50 naphthalene 23.00

2Novem b er 2005

4. According to field notes and photographs from the EPA inspection conducted on or about [insert date(s)] , a m a jority of the buried drum s were found to be crushed, open, and/or corroded, and leaking fluids into the surrounding soil, as follows:

DRUM CONDITION OF DRUM L1 Ruptured L2 Crushed and bung open L3 Began leaking when m oved L7 Leaking and deteriorated L11 C rushed L12 B eginning to deteriorate, rotting through on top L13 R otten on top L14 D rum leaking from pin holes L16 P artially crushed drum , sm all leak L18 M ostly crushed drum L19 P artially crushed drum , bottom collapsed & leaking L20 P artially crushed drum with bung off L22 C rushed and ruptured L23 B ung off, several holes L24 N um erous leaks L25 M ostly crushed, partially rusted out

5. [OPTIONAL: An endangerment assessment may be developed to support the issuance of the AOC. A brief description of the conditions that may present an endangerment may also be acceptable. See the October 1997 “Guidance on the Use of Section 7003 of RCRA.”] The constituents identified at Respondent’s Site include known and suspected carcinogens and mu tagens, which can affect the central nervous system and dam a ge internal organs at low levels. These constituents, under certain conditions of dose, duration, or extent of exposure, constitute a threat to hum an health by ingestion and/or absorption. The following inform ation was comp iled from "Chem i cal,
3Novem b er 2005

Physical, and Biological Properties of Co mpounds Present at Hazardous W a ste Sites", prepared by Clem ent Associates, Inc., dated Septem ber 27, 1985, publications of the Agency for Toxic Substances and Disease Registry (ATSDR), and the Report on Carcinogens, 8th Sum m a ry 1998 Edition (RoC) published by the National Institute of Environm ental Health Science (NIEHS), EPA' s Integrated Risk Inform ation System (IRIS), and 40 C.F.R. Part 141: A. Arsenic is a potent poison and large doses can produce death. Ingestion of 200 m g m a y be fatal to adults. Lower levels m a y cause system ic injury to the body. W h en ingested it causes irritation to the digestive tract, pain, vom iting, and diarrhea. Other effects include decreased production of red and white blood cells, blood vessel dam a ge, liver and kidney injury, impaired nerve function, and liver tum o rs. Oral exposure to arsenic contam inated drinking water has shown significantly elevated standard m o rtality ratios for cancer of the bladder, lung, liver, kidney, skin, and colon. The m a ximu m contam inant lim it (MCL) for arsenic in drinking water is 0.05m g/L. IRIS lists arsenic as a Group A (known hum an) carcinogen. B. Asbestos refers to a group of naturally occurring fibrous silicate m i nerals rather than one specific m a terial. Generally, asbestos refers to the six (6) silicate m i nerals am osite, chrysotile, trem olite, actinolite, anthophyllite, and crocidolite. These m i nerals vary considerably in their physical and chem ical properties with the m o st com m on m i nerals types being chrysotile (white color), crocidolite (blue color), anthophyllte (gray color), and am osite (brown color). C. Benzene: Benzene is a volatile, arom atic hydrocarbon and a component of gasoline. EPA claim s that half of the U.S. population is exposed to benzene in gasoline. IRIS and the RoC lists benzene as a Group A (known hum an) carcinogen, causing leukem i a in exposed individuals. Benzene exposure is associated with chrom o som a l dam a ge in both hum ans and anim als, although it is not mu tagenic in m i croorganism s. Benzene has been shown to be f e to-toxic and to cause em bryo-lethality in experim e ntal anim als. Exposure to benzene has resulted in leukem i a in hum ans. It also adversely affects the hem a topoietic system

. Very high concentrations in air (about 20,000 ppm ) can cause death in m i nutes, with central nervous system depression and convulsions, and cardiovascular collapse. Vertigo, dizziness, drowsiness, headache, nausea, confusion, trem ors, tachycardia, and eventual unconsciousness result from m ilder exposures. Derm al adsorption of liquid benzene can result in erythem a , blistering, and scaly derm atitis. Benzene contam ination of drinking and surface waters, fruits, vegetables, dairy products, nuts, and eggs all add to the hum an body burden of benzene. Long-term benzene exposures affect 4Novem b er 2005

bone m a rrow thereby dim i nishing erythrocyte production and causing anem ia. Excessive bleeding and deleterious effects on the im mune system m a y also occur. Drinking fluids or eating food contam inated with high concentrations can result in vom iting, gastritis, vertigo, convulsions, tachycardia, and death. The m a ximu m contam inant level (MCL) for benzene in drinking water is 0.005 m g /l. D. Chrom i um is a heavy m e tal generally existing in either a trivalent or hexavalent oxidation state. Hexavalent chrom e compounds are carcinogenic in rats and an excess of lung cancer has been observed am ong workers in the chrom a te producing industry. Hexavalent chrom e can also cause DNA and chrom o som e dam a ge in anim als and hum ans. Short term high-level exposure to hexavalent chrom e can cause adverse effects at the point of contact. Trivalent chrom e is less toxic than hexavalent chrom i um ; its m a in ef f

ect is contact derm atitis in sensitive individuals. Chrom i um has been shown to dam a ge the kidney, nervous system , and the circulatory system of laboratory anim als such as rats and m i ce when the anim als are exposed at high levels. Som e hum ans who were exposed to high levels of chrom i um suffered liver and kidney dam a ge, derm atitis, and respiratory problem s. The MCL f o r total chrom i um in drinking water is 0.1 m g /L. IRIS lists chrom i um VI as a Group A (known hum an) carcinogen. E. DDT is a probable hum an carcinogen. DDT is an organochlorine pesticide, which together with its m e tabolites, is very persistent in the environm ent. DDT, DDE, and DDD have been shown to be carcinogenic in m i ce. They prim arily cause liver tum o rs, but they also increase the incidence of lung tum o rs and lymphom as. In addition, DDT is a reproductive toxin. Chronic exposure can dam a ge the central nervous system and liver. DDT and other organochlorine pesticides are highly toxic to aquatic organism s and are responsible for the decreased reproductive success of m a ny bird species. F. Lead is a heavy m e tal that is indestructible. It is stored m a inly in the bone. It has induced kidney tum o rs in m i ce and rats. Lead is also a reproductive hazard, and it can adversely affect the brain and central nervous system by causing encephalopathy and peripheral neuropathy. Chronic exposure to low levels of lead can cause subtle learning disabilities in children. Exposure to lead can also cause kidney dam a ge, retard physical growth, and anem ia. The action level for lead in drinking water, as noted in 40 CFR 141, Subpart I, is 0.015 m g /l. IRIS lists lead as a Group B2 (probable hum an) carcinogen.

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G. Methylene Chloride (dichlorom ethane): Methylene chloride increased the incidence of lung and liver tum o rs, and sarcom as in rats and m i ce. It was found to be mu tagenic in bacterial test system s. In hum ans, m e thylene chloride irritates the eyes, mu cous m e m b ranes, and skin. Exposure to high levels adversely affects the central and peripheral nervous system s and the heart. In experim e ntal anim als, m e thylene chloride is reported to cause kidney and liver dam a ge, convulsions, and paresis. The MCL for m e thylene chloride in drinking water is 0.005 m g /l. IRIS lists m e thylene chloride as a Group B2 (probable) hum an carcinogen. H. Naphthalene: Naphthalene has retarded cranial ossification and heart developm ent in the offspring of exposed pregnant rats. Inhalation exposure has caused nausea, headache, and optic and kidney dam a ge in hum ans and experim e ntal anim als. Oral adm i nistration has produced cataracts in rabbits and induced changes in m o tor activity in rats and m i ce. Exposure to high doses causes severe hem o lytic effects. A drinking water MCL has not been established for naphthalene. IRIS lists naphthalene as a Group D (not classifiable as to hum an carcinogenicity) carcinogen. I. Polychlorinated Biphenyls (PCB’s) have been classified as probable hum an carcinogens. PCBs are very persistent in the natural environm ent and are readily bio-accumu lated. In hum ans, exposure to PCBs has been associated with chloracne, impairm e nt of liver function, a variety of neuro-behavioral symp tom s , m e nstrual disorders, m i nor birth abnorm a lities, and an increased incidence of cancer. Experim e ntal anim als exposed to PCBs experienced an increased incidence of cancer; reproductive problem s; neuro-behavi oral degradation; pathological changes in the liver, stom ach, skin, and other organs; and suppression of im munological function. PCBs have induced hepatocellular carcinom as in three strains of rats and two strains of m i ce. There is inadequate, yet suggestive, evidence of excess risk of liver cancer in hum ans via ingestion, inhalation, or derm al contact. PCB is a probable hum an carcinogen. PCBs have an MCL in drinking water of 0.0005 m g /L. J. Tetrachloroethene: Tetrachloroethene (PCE) produces liver cancer in m i ce when adm i nistered orally by gavage. Renal and hepatotoxicities have been reported following inhalation exposure of rats to fairly high concentrations. The MCL in drinking water is 0.005 m g /l. A final decision on whether PCE should be classi fied as a Class B2 (probable) or Class C (possible) carcinogen has not yet been m a de. K. Toluene: Acute exposure to toluene at concentrations of 375-1,500 m g /kg produces central nervous system depression and narcosis in hum ans. 6Novem b er 2005

Toluene has been shown to be em bryo-toxic in experim e ntal anim als, and the incidence of cleft palate increased in the offspring of dosed m i ce. Chronic inhalation exposure to relatively high levels of toluene caused cerebellar degeneration and an irreversible encephalopathy in m a m m a ls. In hum ans, acute exposure depressed the central nervous system and caused narcosis. The MCL for toluene in drinking water is 1 m g /l. IRIS lists toluene as a Group D (not classifiable as to hum an carcinogenicity) carcinogen. 6. Respondent’s site is located [describe residences, aquifers, dom estic water supplies, river/lake used for recreational purposes, wells (including num ber and type of use), fragile environm ent, etc. and their distance and location with respect to the site]. 7. Hazardous wastes, hazardous constituents, and/or solid waste identified in Paragraph 5 have m i grated or m a y m i grate from Respondent’s Site into the environm ent through the following pathways: A. Soils: Hazardous wastes and constituents have been released to the soil as a result of spills and leaks f r om the buried drum s. The soils at Respondent’s Site include Crockett and Mabank Loam s, which consist of 0" to 8" of surface loam underlain by clays. B. Ground W a ter: The hazardous wastes and constituents spills and/or leakage from the buried drum s m a y enter the ground water as leachate from the contam inated soil. Respondent’s Site is located in the outcrop area of the [insert name] Aquifer, which is recharged chiefly by precipitation on the outcrop areas. The [insert name] Aquifer is the principal source of ground water in County for public supply, industrial, irrigation, and dom estic uses. C. Surface W a ter and Sedim e nt: The hazardous wastes and constituents spills and/or leakage from the buried drum s m a y enter the surface water as a result of water runoff from the contam inated soils, and from discharge of contam inated ground water. The Excavation Site is located approxim a tely 20 yards north of an unnam e d creek, which drains Respondent’s Site and f l ows to the east into a residential area approxim a tely one-quarter m ile downstream from the Excavation Site at Respondent’s Site. The unnam e d creek is a tributary of [insert name] , which flows [insert direction] into the [insert name]

. D. Ground water recharge and surface water runoff result from approxim a tely 39 inches per year of average precipitation in [insert name] County, which has a m o ist, subhum id clim ate. 7Novem b er 2005

8. The handling, storage, treatm e nt, transpor tation or disposal of hazardous wastes, hazardous constituents, and/or solid waste from Respondent’s Site, if not addressed by implem enting the W o rk required by this AOC, m a y present an im m i nent and substantial endangerm ent to hum an health and/or the environm ent.


### 2. What should stipulated penalty language look like?
Answer: The following language could be used: Stipulated Penalty Am ounts - W o rk

. The following stipulated penalties shall accrue per violation per day for any noncompliance identified in Paragraph ______: Penalty Per Violation Per Day Period of Noncompliance $__________ 1st through 14th day $__________ 15th through 30th day $__________ 31st day and beyond Comp liance Milestones

. [List violations or comp liance m ilestones including due dates for paym ents] Stipulated Penalty Am ounts - Reports

. The following stipulated penalties shall accrue per violation per day for failure to subm it tim ely or adequate reports [or other written docum ents] pursuant to Paragraphs ____________ : Penalty Per Violation Per Day Period of Noncompliance $__________ 1st through 14th day $__________ 15th through 30th day $__________ 31st day and beyond 

### 3. Does Headquarters have to approve a RCRA § 7003 AOC for cleanup?
Answer: OECA’s Federal Facilities Enf o rcem ent Of f i ce retains a consultation role in all actions in which a federal agency is a Respondent. Regions mu st consult with the Director of OECA’s Office of Site Rem e diation Enforcem ent for ad m i nistrative orders which significantly deviate from written Agency policy or which break new ground in an im portant sensitive area. 

### 4. What constitutes an imminent and substantial endangerment?
Answer: Refer to EPA “Guidance on the Use of Section 7003 of RCRA”, October 1997, for a description of “im m i nent and substantial endangerm ent.”

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### 5. Can mediation be used in dispute resolution?
Answer: The dispute resolution procedures m a y be supplem ented to provide for use of m e diation in appropriate cases. Mediation provisions in an AOC should contain tim e lim its to ensure that m e diation does not cause delays in dispute resolution that could delay the work required under the AOC. 

### 6. How do you know if the penalty interest and method of payment information are correct?
Answer: Regions should consult their finance office who will be responsible for preparing the bill and tracing paym ent as an account receivable. 

### 7. How do you know when work under a RCRA § 7003 AOC is complete?
Answer: Regions should craft their AOCs base d on the desired endpoint. A RCRA § 7003 AOC m a y or m a y not require corrective action through a comp letion stage. The AOC m a y require that only hum an exposures be controlled. Regions should refer to the “Final Guidance on Comp letion of Corrective Action Activities at RCRA Facilities” issued February 13, 2003. The Guidance describes two types of corrective action com p letion (with and without controls). 

### 8. What is a “material defect” in a deliverable?
Answer: A m a terial defect in a deliverable is an error that is not typographical or editorial in nature. 

### 9. What are data quality objectives?
Answer: Regions should refer to the “Data Quality Objectives Process for Superfund” Fact Sheet, Interim Final Guidance, and W o rkbook issued in Septem ber 1993. 

### 10. Why are comprehensive general liability insurance and automobile insurance required by the AOC?
Answer: Respondents are required by the AOC to have com p rehensive general liability insurance and autom obile insurance for protection from third party injury law suits that m a y arise during and after the perform a nce of the W o rk required by the AOC. This insurance is not a financial assurance m echanism nor is it for reim bursem e nt of response/oversight costs incurred by EPA.

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