UNITEDSTATES ENVIRONMENTALPROTECTIONAGENCY REGION VIII Jllllllllllllll/111111111111111111111111 276315 999 18th STREET

- SUITE 500 DENVER, COLORADO 80202-2466

Ref: SHWM-SR GlennAnderson ASARCO 1019 8th Street, Suite 304 Golden, Colorado 80401 DavidA.Baker April 30, 1993

Vice President, Environmental Affairs Newrnont Gold Company 1700 Lincoln Street Denver, Colorado 80203 

### ADMINISTRATIVERECORD

TRANSMITTAL OF FIRSTAMENDMENT TO ADMINISTRATIVE ORDER FOR YAK TtmNEL OPERABLE UNIT REMEDIAL

**DESIGN/RE~~DIAL** ACTION Reference: Unilateral Administrative Order (UAO 89-20)

EPA and the Respondents have been discussing the Yak settlement-formanymonths in order to expedite effective remedial action and to defuse the potential for litigation. Our negotiations have foundered recently over the demonstration of financial assurance for Operation &Maintenance of the long-term water treatment action, as ·well as, a few other issues. In the interest of expediting resumption of remedial design and action for the remainder of the YakTunnel remedy without losing another construction season, EPA has decided to issue an amendment to the referenced order to Respondents to resume the work. This amendment orders continuedperformance of the remedy and authorizes certain changes from the Record of Decision (ROD) pursuant to the Explanation of Significant Differences (ESD)

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-· !Future actions which the Respondents must take to implement the ESD include, but may not be limited, to the following: (1) Continued operation andmaintenance of the water treatment system to treat all contaminatedwater from the Yak Operable Unit; 0 &Mis not to preclude integration of the facility with treatment needs for additional remedial actions for the Site. (2) Operation andmaintenance of a surface and ground water monitoring program to establishbaseline water quality and to evaluate hydrologic changes. (3) Astatement of intention to conduct the remaining remedial work consistent with the ESD under this UAO The Statement of Work attached to this amew.l.ment defines the remaining work consistently with the ESD to assure that the implemented remedy remains protective of human health and the environment, complies withARARs, is cost-effective, andyet at the same time; gives the Respondents their desired

**flexibili~y** in achieving the remedial action objectives and intent of the changed remedy. An indication of EPA's willingness to accommodate a degree of flexibility wouldbe the stipulationbybothparties that the nature and extent of remaining remedial activities wouldbe determined after a considerationby EPA of tributary flows and rock stability conditions encountered during a joint YakTunnel inspection.



# fyH~~ Remedial ProjectManager Attachments: First Amendment toUAO 89-20

2' I

IN THE MATTER OF: CALIFORNIA GULCH SUPERFUND SITE, ASARCO INCORPORATED, NEWMONT MINING CORPORATION, RES-ASARCO JOINT VENTURE, AND RESURRECTION MINING COMPANY,

RESPONDENTS. PROCEEDING UNDER SECTION 106(a) OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITYACT, AS AMENDED, 42 U.S.C. 9606(a) First Amendment to Order EPA Docket No. CERCLA-VIII-89-20

FIRST AMENDMENT TO ADMINISTRATIVE ORDER FOR YAK TUNNEL OPERABLE UNIT REMEDIAL DESIGN/REMEDIAL ACTION Administrative Order Docket No. CERCLA-VIII-89-20, as provided at SectionXIV, page 16, is hereby amended as follows: III. DEFINITIONS For purposes of the Order and this Order Amendment, the following terms shall have the meanings set forth below. 1. In replacement of the definition set forth at page 3 of the Administrative Order, "Description of Work" or "DOW" will now mean the Statement of Work, Revision 2, attached to the Order Amendment as Appendix B. 2. In replacement of the definition set forth at page 4 of the Administrative Order, "Work" means construction of a flow control bulkhead at a place to be determinedupon tunnel inspection and/or rockmass sampling; implementation of the ground water and surface watermonitoringprogram in accordance with the approved Routine Monitoring Plan; continued0 &Mof the permanent water treatment system; and development and implementation of a Contingency Plan responding to any adverse hydrologic change occurring as a result of the remedy. 3. To supplement the-definition set forth at page 4 of the Administrative Order, "ROD" shall alsomean the Explanation of Significant Differences attached to the OrderAdmendment as Exhibit 1.

1IV. FINQINGS OF FACT EPA has made the following Findings of Fact concerning the CaliforniaGulch Superfund Site, YakTunnel Operable Unit: 1. The findings of fact enteredunder the original Unilateral Administrative Order, Section IV., are incorporatedby reference into this Order Admendment. 2. In 1990, Respondents submitted to EPA a proposal for altering the remedy as originally selected and described jn the proposedplan, ROD, and ROD modification. See, Selected R'

**~** Component Change Proposal, (Res-ASAACO Joint Venture, March 1990). EPA considered these public comments and determined there was a need to modify the pre-existing Record of Decision. 3. Alteration of the remedy for the YakTunnel Operable Unit as described in OrderDocket No. CERCLA VIII-89-20 and its attachments is warranted as more fully set forth in the Explanation of Significant Differences (ESP) attached hereto a8 Exhibit 1. V. CONCLUSIONS OF LAW Based on the Findings of Fact and the Administrative Record for the CaliforniaGulch Superfund Site, YakTunnel

### ou #1, EPA makes the following Conclusions of Law: 1. The Conclusions of Law enteredunder the Order, Section V, are hereby incorporatedby reference. VI. DETERMINATIONS Based on the Findings of Fact and the Conclusions of Law set forth above, and the entireAdministrative Record, EPA has determined as follows: 1. The actions requiredby this OrderAmendment are necessry to protect the public health or welfare or the environment, are in the public interest, are consistent with CERCLA and the NCP, and will expedite effective remedial action andminimize litigation. 2. Respondents are qualified to performthe actions set forth in this OrderAmendment promptlyandproperly.

2VIII. WORK TO BE PERFORMED 1. Respondents shall conduct theWork in accordance with the attachedStatement of Work (SOW), Attachment 1. In the event of any inconsistencybetween this Administrative OrderAmendment, including provisions of the original Order, and the SOW, and associated schedules, attachments, or exhivits, or other documents incorporatedherein, the terms and conditions of this Order Amendment shall take precedence. IT IS SO ORDERED: ENVIRONMENTAL PROTECTION AGENCY, REGION VIII

DATE:

3

### UNITED STATES ENVIRONMENTAL PROTECTIONAGENCY REGIONVIII 

## MAR



# 29~9~w EPARegionVIII RegionalHearingClerk 

### INTHEMATTER OF: ) ) 

### ASARCO INCORPORATED, NEWMONTMINING ) DOCKETNO. CERCLA-VIII-89-20 

### CORPORATION, RES-ASARCO JOINT ) VENTURE, AND RESURRECTIONMINING ) COMPANYI ) ) 

### RESPONDENTS. ) ) 

### PROCEEDING UNDER SECTION 106 ) OFTHE COMPREHENSIVEENVIRONMENTAL ) RESPONSE, COMPENSATION, AND ) LIABILITYACT of 

### 1980, 42 U.S.C. ) § 

### 9606 (1982), AS AMENDED. )
ADMINISTRATIVE ORDER FOR: YAKTUNNEL OPERABLE UNITREMEDIAL DESIGN/REMEDIALACTION TABLE OFCONTENTS I. JURISDICTION •••••..••.••••..•.. .•••.••••.••••••.••.. 3 II. PARTIES BOUND ••••••.•.••••••••••.. .•••••••..•••••••• 3 III. DEFINITIONS

.•••••.••••.. . .••••••••.••••••••••.•••••• 3 

### IV. FINDINGS OFFACT •.•••.••••..•••••••••.•••••••••••..• 4 V. CONCLUSIONS OFLAW •••.•••••••••••••••••••••••••••••• 5 VI. DETERMINATIONS •••••••.•••••••••••••••••••.•••••••••• 5 

### VII. VIII. IX. X. 

### XI. XII. XIII. NOTICETOTHE STATE ••••••••••••••••••••••••••••••••• 6 

### WORKTO BEPERFORMED ••••••••••••••••••••••••••.••••• 6 

### IMPLEMENTATIONREQUIREMENTS ••••••••••••••••••••••••• 7 

### REPORTINGREQUIREMENTS •••••••••••••••••••.••••••.••• 8 

### PROJECTMANAGERS ••••••••••••••••••••••••••••••••••. 1 2 

### SITEACCESS AND SAMPLING •••••••••••.••••••••.•••••• 12 DOCUMENTATION, AVAILABILITY OF INFORMATION, AND RECORD RETENTION •••••••••..•••••••••.•.•••••••.•••• 14

### XIV. XV. XVI. XVII. MODIFICATIONS TO ORDER ••••••••••••••••••••••••••••• 16 EFFECTIVEDATEAND CONFERENCE OPPORTUNITY •••••••••. 17 OTHER MATTERS •••••••••••••••••••••••••••••••••••••• 1 7 ENFORCEMENT •••••••••••••••••••••••••••••••••••••••• 18

2

### I. JURISDICTION This Administrative Order (Order) is issued pursuant tothe authority vested in the President of the United States by section 106(a) of the Comprehensive Environmental Response, Compensation, and LiabilityAct of 1980, 42

## u.s.c. § 9606(a) (1982), as amended by the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613 (1986) (CERCLA). This authority was delegated to the Administrator of the United States Environmental Protection Agency (EPA) on January 23, 1987, by Executive Order No. 12,580, 52 Fed. Reg. 2,923 (1987), and has been further delegatedto the Director of the Hazardous Waste Management Division of EPA Region VIII. 

### II. PARTIES BOUND This Order shall apply to and be binding upon ASARCO Incorporated, Newmont Mining Corporation, Res-ASARCO Joint Venture, and Resurrection Mining Company, and upon all directors, officers, principals, employees, agents, successors, and assigns of the Respondents. The Respondents shall each be responsible for carrying out all actions required of the Respondents by the terms and conditions of this Order. 

### III. DEFINITIONS For purposes of this Order, the following terms shall have the meanings set forth below: A. "Contractor" means anyperson, including the contractors, subcontractors, or agents, retained or hired by the Respondents to undertake any Work under this Order. B. "Day" means calendar day. 

## c. "Description of Work" or "DOW" means the document entitled "Description of Work: Remedial Design/Remedial Action for the Yak Tunnel Operable Unit," dated March 29, 1989, attached hereto as Exhibit 1. D. "NCP" means the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. Part 300. E. "Operations andMaintenance" means long-termoperations and maintenance of the remedial action, conduct of the monitoring program, and implementation of the contingencyplan as set forth in the ROD anddetailed in the DOW. F. "Order" means this Order, the exhibits attached to this Order, the EPA-approved Work Plan, and all revisions to the Work Plan incorporated into this Order according tothe procedures set forth herein. 3G. "Remedial action" means the Work described in Section IV of the DOW. H. "Remedialdesign" means the Work described in Section III of this DOW. I. "ROD" means the Record of Decision documentingthe selection of a remedial alternative for the Yak Tunnel attached as Exhibit 2 and the modification tothe ROD attached as Exhibit 3. H. "Task" means any action to be taken by the Respondents pursuant to this Order. I. "Work" means all tasks required by this Order, including all activities relatedto the performance of such activities. 

### J. "Work Plan" means the document, including any modifications thereto, submitted by the Respondents which sets forth the methods and schedule by which the Respondents will accomplish the Work. As defined in the DOW, this document shall include the Work Plan itself, the Related Plans, and the Design Plans and Reports. K. All other items, not otherwise defined herein, shall have their ordinary meaning unless defined in CERCLA or the NCP, in which case the CERCLA or NCP definition shall control. 

### IV. FINDINGS OF FACT A. The California Gulch site (site) is a CERCLA National Priorities List site located in and near Leadville, Colorado (Figure 1). EPA has completed a Phase I remedial investigation and a feasibility study evaluating alternative remedies for the Yak Tunnel, the first remedial operable unit for the site. On March 29, 1988, EPA signed a Record of Decision (ROD) for the Yak Tunnel Operable Unit, California Gulch Site, Leadville, Colorado, documenting the selection of a remedy for the Yak Tunnel Operable Unit. As a result of negotiations with the Respondents, EPA modified the ROD on March 23, 1989. B. The Yak Tunnel, a tunnel connecting numerous underground mine workings, discharges water containing various metals, including cadmium, copper, lead, and zinc. These metals contribute to contamination of surface water in California Gulch and the Arkansas River, the shallowground water zone associated with California Gulch, and sediments along California Gulch and the Arkansas River. Cadmium, copper, lead, and zinc are defined as hazardous substances pursuant to section 101(14) of CERCLA, 42

## u.s.c. § 9601(14), because of their toxic effects on humans and aquatic life.

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l-- ® u'C. The ROD, as modified, sets forth the remedy selected by EPA to abate the threats to public health and welfare and the environment from the Yak Tunnel discharge. This remedy includes construction of a surge pond, plugging of the tunnel, measures to minimize the inflowof water into the tunnel system, a water treatment facility, a monitoringprogram, operations and maintenance, and a contingencyplan. The surge pond has been constructed by ASARCO Incorporated, Res-ASARCO Joint Venture, and Resurrection Mining Company pursuant to Administrative Order Docket No. CERCLA VIII 88-11. D. The Respondents are each owners or operators or past owners or operators of the Yak Tunnel and/or related facilities. ASARCO Incorporated is a New Jersey Corporation with its corporate headquarters in the State of New York. Newmont Mining Corporation is a Delaware corporation with its corporate headquarters in the State of Colorado. Res-ASARCO Joint Venture is a joint venture of ASARCO Incorporated and Resurrection Mining Company. Resurrection Mining Company is a Delaware corporation with corporate headquarters in the State of New York. V. CONCLUSIONS OF LAW Based on the precedingFindings of Fact, the ROD, and the administrative record for the Yak Tunnel Operable Unit, EPA has made the following Conclusions of Law: 1. The Yak Tunnel is a "facility" as defined in section 101(9) of CERCLA, 42 U.S.C. § 9601(9); 2. The Respondents are "owners or operators" as defined in section 101(20) of CERCLA, 42

## u.s.c. § 9601(20); 3. The Respondents are "persons" as defined in section 101(21) of CERCLA, 42 U.S.C. § 9601(21); 4. Cadmium, copper, lead, and zinc are "hazardous substances" as defined in section 101(14) of CERCLA, 42

## u.s.c. § 9601(14); and 5. The past, present, and potential future discharge of hazardous substances from the Yak Tunnel constitutes an actual and threatened "release'' as defined in section 101(22) of CERCLA, 42

## u.s.c. § 9601(22). VI. DETERMINATIONS Based on the preceding Findings of Fact and Conclusions of Law and the administrative record for the Yak Tunnel Operable Unit, EPA has determined that:

51 . The actual or threatened release of hazardous substances fromthe Yak Tunnel may present an imminent and substantial endangerment to the public health or welfare or the environment; and 2. The actions requiredbythis Order are necessaryto protect public health and welfare and the environment. VII. NOTICE TO THE STATE EPA has notified the State of Colorado (State) of this action pursuant to section 106(a) of CERCLA, 42

## u.s.c. § 9606(a), and has provided notice to the State of and an opportunityto participate in negotiations regardingthe scope of this response actionpursuant to section 121(f) of CERCLA, 42

## u.s.c. § 9621(f). VIII. WORK TO BE PERFORMED A. It is hereby ORDERED that the Respondents shallplan, implement, perform, and complete all actions required by this Order in accordance with the standards, criteria, specifications, requirements, and schedule set forth herein. B. The Respondents shall undertake the Work described in the DOW, attached hereto as Exhibit 1. All Work under this Order is subject to oversight by and the prior approval of EPA, in consultationwith the State. The Respondents shall obtain EPA approval for all documents and reports described in the DOW and all proposed modifications to documents or reports previously approved by EPA. Commencing or undertaking any remedial action without prior EPA approval is a violation of this Order. C. The plans, documents, and reports required bythe DOW shall be subject to review and modification by EPA, in consultation with the State. Inthe event of any disapproval, EPA shall specify, in writing, anydeficiencies and required modifications to such documents. Unless otherwise specified in the schedule, the Respondents shall, within 14 days of receipt of any EPA disapproval, submit a reviseddocument incorporating or addressing all of EPA's modifications. At the time a revised document is submitted, the Respondents shall submit a cover letterdescribing their response to each EPA modification and a certificationthat no other changes were made other than those modifications requiredby EPA. Failure to incorporate or address any EPA modification in accordance with theseprocedures is a violation of this Order. EPA may unilaterallymodify any plan, document, or report if the Respondents do not make the required modifications.

6

### IX. IMPLEMENTATION REQUIREMENTS A. All Work shall be conducted and completed in accordance with CERCLA, the NCP, EPA guidance, and any amendments thereto which become effectivepriortothe date of completion of Work under this Order. TheRespondents shall be responsible for identifying and using other guidelines, policies, procedures, and information that may be appropriate for performing the Work. B. All Work shall be consistent with the ROD, includingthe requirements of all applicable or relevant and appropriate Federal and State laws and regulations (ARARs) to the extent required byAppendix Cof the ROD. C. Activities undertaken byRespondents shall be in compliance with all other Federal, State, and local laws and regulations, includingpermit requirements, unless an exemption from such permit requirement isprovided by Section 12l(e) of CERCLA, 42

## u.s.c. § 9621(e). The Respondents shall identify and obtain all permits, licenses, and approvals required for performance of the Work in sufficient time toperformWork as scheduled. D. To ensure that implementation of the remedy does not cause injury to vested water rights or decreed conditional water rights, the Respondents shall comply with all applicable provisions of Colorado law before undertaking any remedial action which involves the interception, withdrawal, diversion, storage, capture, possession or control of any ground water or surface water. Compliance with Colorado lawmay include, but is not limitedto, obtaining approval of a plan of substitute supply from the State Engineer and obtaining approval of a plan for augmentation of water fromthe Water Court for Water Division No. 2• E. The remedy includes baseline measurements of the quality of the Parkville Water Districtdrinking water supply, an ongoing monitoring programto predict and detect any adverse hydrologic changes, and a contingencyplan to address such changes. If the quality of any ParkvilleWater District drinking water supply source, as measured at current intakepoints, deteriorates as a result of the remedial action, the Respondents shall implement appropriate contingency measures to restore the drinking water supplyto its baseline quality level through tasks including, but not limitedto, treatingthe water, augmentingthe deteriorated water supply or, subject to EPA approval in consultation with the State, modifying the remedial action to eliminate the source of contamination. F. In accordance with the schedule set forth in the DOW, the Respondents shall complete a survey pursuant to 36 C.F.R. § 800.4(b) to identify historicproperties which may be affected 7by implementation of the Work. The Respondents shall assist EPA in the consultationprocess described in 36 C.F.R. Part 800 to develop ways to avoid or reduce adverse effects on historic resources and shall implement all mitigation measures identified through the consultation process. G. The Respondents shall employ sound scientific, engineering, and construction practices in performingWork pursuant to this Order. All tasks performed shall be under the direction and supervision of qualifiedpersonnel or contractors with experience in the types of tasks required for implementation of the Work, e.g., tunnel plugging, water treatment, and monitoring. The Respondents shall provide a copy of this Order and any relevant modifications to this Order to any contractor retained or hiredtoperform any Work and shall condition the performance of Work on compliance with the relevant requirements of this Order. H. On or beforethe effectivedate of this Order, the Respondents shall notifyEPA and the State, in writing, of the name, title, and qualifications of the personnel and contractors to be used in carrying out the Work. The Respondents shall demonstrate to EPA that each proposed contractor possesses the qualifications, experience, technical capability, and management capability necessaryto performwork in a safe and timely manner, consistent with the requirements of this Order. If EPA disapproves of any contractor, the Respondents shall within 14 days submit another contractor and the information outlined above. The Respondents shall amend this notice in writing not later than seven days prior to any change in contractor. I. The Respondents shall employ a full-time, onsite inspector during construction. The onsite inspector shall verify compliance with all environmental and technical requirements; review all dailyreports and construction activitiesto verify that all work complies with the EPA-approveddesign; note and resolve all discrepancies immediately; and review and initial the daily, weekly, and monthly reports described below. 

### X. REPORTING REQUIREMENTS A. Duringthe course of Work under this Order, the Respondents shall submit the following reports to EPA and the State. 1. MonthlyProgressReports. The Respondents shall submit monthlyprogress reports containingthe following information:

a. Adescription of the actions taken toward achieving compliance with this Order, including

8plans and actions completed, during the reportingperiod; b. Adescription and estimate of the percentage of the Work completed;

c. Adescription of any activities that deviated from or were carried out in addition to those provided for in the Work Plan, which occurredduring the reporting period; d. Summaries of significant findings pertainingto the remedial design or remedial action during the reporting period;

e. Summaries of all changes made in the remedial design or remedial action during the previous month; f. Adescription of unresolved problems or potential problems encounteredduring the reportingperiod that may cause a performancedelay and a description of efforts made to mitigate those delays; g. Change orders, nonconformance reports, claims made, and actions taken to rectifyproblems; h. Changes in personnel during the reporting period; i. Projected work for the next reportingperiod, including a schedule by week of design and construction activities for the next month; and j. Except for data submitted in accordance with the Operations and Maintenance Reports described below, copies of inspection logs and results of all sampling, tests, and other data (including validated analytical data with supporting documentation on Contract Laboratory ProgramForm I's or in a similar format) received or produced by the Respondents during the course of work during the previous month. These reports shall be submittedto EPA and the State on or before the 10thday of each month from the effective date of the Order and each month thereafter until EPA accepts the constructed project as described in the DOW. 2. Daily andWeekly ConstructionReports. During construction, the Respondents shall prepare daily and weekly reports on construction activities discussing, at a minimum, the 9daily activities, field adjustments, change orders, summaries of problems and actions to rectifyproblems, and such information as is customary in the industry. The daily reports and the weekly report shall be compiled anddelivered to EPA and the State each week. 3. Operations andMaintenance (O&M) Reports. The Respondents shall prepare and submit ongoing O&M Reports to EPA and the State. These reports shall include, at a minimum, the following elements:

a. Adescription of O&M activities performedduring the reporting period; b. Adescription of the performance of each component of the remedial action, including_a summary of the monitoring data demonstrating the performance of the surge pond, treatment facility, and any sludge disposal facility, and their effectiveness in meeting the chemical-specific and action-specific ARARs identified in the ROD;

c. Adescription and summary of the results of all monitoringperformed in connection with the remedy; d. A statistical evaluation of the monitoring data and a conclusion as to whether the results exceed action triggers established in the Baseline MonitoringReport, necessitatingthe implementation of contingency measures;

e. Identification of anyproblems or potential problems and a description of all steps taken or to be taken to rectifythe problems; f. An appendix containing all validateddata and supportingdocumentation on Contract Laboratory ProgramForm I's or in a similar format collected during the reportingperiod; and g. Copies of any O&M training materials and a record of employee attendance at training sessions. The O&M Reports shall be submitted quarterly on or before the 10th day of January, April, July, and October. 4. Five-Year ReviewReports. The Respondents shall prepare and submit the five-year reviewreports described in the DOW to EPA and the State. TheseReports shall be due on September 7, 1993, and on the same date every five years thereafter. 10B. All documents requiredto be submittedpursuant to this Order shall be hand delivered or sent by first-class mail tothe following persons or to such other persons as the parties hereafter may designate in writing: 1. Documents submittedto EPA shall be sent in quadruplicate to: Remedial Project Manager California Gulch Site (8HWM-SR) U.S. Environmental Protection Agency Region VIII 999 18th Street, Suite 500 Denver, Colorado 80202-2405 2. Documents submittedto EPA shall also be submitted in triplicate to: California Gulch Site Manager Colorado Department of Health Hazardous Materials andWaste Management Division 4210 East 11th Avenue Denver, Colorado 80220 and induplicate to: California Gulch Lead Attorney Department of Law CERCLA Litigation Section One Civic Center Plaza 1560 Broadway, Suite 250 Denver, Colorado 80202 C. In the event of a significant change in conditions or emergency circumstances relatingtopublic health or welfare or the environment relatedto Work under this Order, the Respondents' Project Manager shall immediately notify the EPA Project Coordinator, or if unavailable, his or her supervisor. D. The Construction Completion Report and the Remedial Action Report described in the DOW and the Five-Year Review Reports described in Section X(A)(4) of this Order shall contain the following statement which shall be signed by a responsible corporate officer of the Respondents: "I certifythat the information contained in or accompanying this (submission) is true, accurate, and complete. As to (the) (those) identified portion(s) of this (submission) (document) for which I cannot personally verify (its) (their) truth and accuracy, I certify as the company official having supervisoryresponsibility for the person(s) who, acting under my direct instructions, made the verification that this information is true, accurate, and 1 1complete." The term "responsible corporate officer" means (1) a president, secretary, treasurer or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decisionmaking functions for the corporation, or (2) the manager of one or more manufacturing, production, or operating facilities, if the authority to sign documents has been assigned or delegated to the manager in accordance with corporateprocedures. 

### XI. PROJECT MANAGERS A. On or before the effective date of this Order, the Respondents shall designate a technical Project Manager and an Alternate Project Manager and shall notify EPA and the State in writing of their names, titles, affiliations, addresses, and telephone numbers. The Project Manager shall be responsible for overseeing implementation of this Order. To the maximum extent possible, all communications concerning technical aspects of this Order shall be coordinated through the Project Manager for the Respondents and Project Managers designated by EPA and/or the State. The Respondents' Alternate Project Manager shall receive communications if the Project Manager is unavailable. B. The Respondents may replace their Project Manager or Alternate Project Manager by notifying the other Project Managers in writing of the replacement's name, title, affiliation, address, andtelephone number not later than five days prior to the effective date of replacement. C. EPA is the lead agency for implementation of Work under this Order. The EPA Project Manager has the authority vested in the On-Scene Manager and the Remedial Project Manager under the NCP. This authority includes, but is not limited to, power to halt, conduct, or direct work pursuant to this Order. The EPA Project Manager may halt work that is inconsistent with CERCLA, the NCP, or this Order, including any activity that has not been approved by EPA in consultation with the State. The absence of the EPA Project Manager fromthe Site shall not be a cause for stoppage of Work. D. The State through its Project Manager or any other chosen representative shall be entitledto full and meaningful participation in any technical discussions regardingthe implementation of the Work prescribed by this Order. 

### XII. SITEACCESS AND SAMPLING A. The Respondents shall in no way hinder or impede access of EPA, the State, or their authorized representatives to the portion of the site where Work is being conducted under this Order. The Respondents shall not prohibit such persons from beingpresent on the site at any and all times and from observing 1 2any and all activities conductedpursuant to this Order. All persons who engage in activity under this Order shall be available to and shall cooperate with EPA in its oversight of Work under this Order. B. To the extent that access to or easements over property other than property owned bythe Respondents is required for the proper and completeperformance of Work under this Order, the Respondents shall use their best efforts to obtain written access agreements, rights-of-way, or easements for access to such property. Access agreements are appropriate for short-term entry; for long-termmonitoring and operations and maintenance, rights-of-way or easements shall be obtained. Such agreements shall ensure access for EPA, the State, and their authorized representatives and any rights-of-way or easements shall run with the land. Respondents shall obtain access agreements, rights-ofway, or easements no later than 30 days prior to the time that access to particular property is first needed. If the Respondents are unable within that time frame to obtain such access for themselves, EPA, the State, and their authorized representatives, they shall within three days thereafter notify EPA in writing of their failure to obtain access and the efforts made to obtain it. C. Nothing herein shall limit or otherwise affect EPA's or the State's right of entrypursuant to any applicable statute, regulation, or permit. D. The Respondents shall provide EPA and the State written notice at least seven days prior to collecting samples pursuant to this Order. Upon request, the Respondents shall provide EPA, the State, and their authorized representatives with split or duplicate samples. E. The Respondents shall ensure that EPA and State personnel and their authorized representatives are allowed access to any laboratory utilizedbyRespondents in implementingthis Order. Such laboratories shall perform analyses accordingto EPA methods or other methods deemed satisfactoryto EPA. If a nonEPA method is proposed, the Respondents shall submit all protocols to be used for analysis to EPA and the State at least 30 days prior to the commencement of analyses. The Respondents shall also ensure that the laboratories participate in a quality assurance/quality control (QA/QC) programequivalent to that which is followed byEPA. In addition, upon request, the Respondents shall have such laboratory analyze samples submitted by EPA for quality-assurance monitoring. F. The Respondents shall: 1. Conduct periodicallyconduct an audit of any laboratory that will analyze samples under this Order during the 1 3time the laboratory is conducting such analyses. Such audit will be conducted to verify analytical capability and QA/QC procedures. Audit reports must be submitted to EPA and the State within 15 days of completion of the audit. Corrective actions are to be taken immediately. The Respondents must also report serious deficiencies to EPA and the State within 24 hours of the time the Respondents learn of the deficiency. Laboratories participating in the Superfund Contract Laboratory Programneed not be audited. 2. Conduct at least one field audit per year during sampling activities to verify that field samplers are correctly following samplingprocedures described in the Sampling and Analysis Plan. Corrective actions are to be taken immediatelyto correct any deficiencies. Respondents must also report serious deficiencies to EPA and the Statewithin 24 hours of the time Respondents learn of the deficiency. 3. Provide prompt data validation of analyses done by any laboratory used. This data validation shall determine data utility and shall be performed in accordance with the Functional Guidelines for Data Review for data derived by Contract Laboratory Programmethods. If another method is used, the data validation shall be performed in accordance with the QA/QC data validation criteria set forth in that method. For methods lacking QA/QC data validation protocols, the Respondents must establish validation criteria such as those in Section 8 of the EPA Series Methods in 40 C.F.R. Part 136. The appropriate quality assurance data validation summary reports shall be submitted, along with sample data and summary sheets, to EPA and the State at the time final sample results are provided. XIII. DOCUMENTATION, AVAILABILITY OF INFORMATION, AND RECORD RETENTION A. The Respondents shall maintain documentation pursuant to Section 300.69 of the NCP, 40 C.F.R. § 300.69, to support all actions taken and to provide the basis for cost recovery. To this end, the Respondents shall establish a document control systemwith the following objectives: 1 . Creation of a central file containing all documents pertainingto Work under this Order; 2. Organization of the documents to facilitate retrieval of information; 3. Segregation of documents containing information which the Respondents claim is privileged or confidential; and

1 44. Establishment of procedures to ensure that all documents are routinelyplaced in the central file. B. In addition, the Respondents shall prepare and periodically update an inventory of all documents contained in the central file. The inventory shall contain for each document (1) the document date, (2) the author(s) includingtitle and affiliation, (3) the recipient(s) including title and affiliation, (4) the document title or subject, (5) a summary of its contents, and (6) the number of pages. The Respondents shall submit the document inventory or an update to EPA and the State every quarter during the periodof performance under this Order. The Respondents shall provide EPA and the State with copies of documents upon request. C. The Respondents shall establish special procedures with respect to management of all data collectedunder this Order. The Respondents shall maintain, in an organized filing system, the following documents, including: 1. All field measurements, logbooks, and notebooks; 2. Laboratory purge files, including but not limited to, sample tags, chain-of-custody records, copies of sample tracking records, analysts' logbook pages, instrument logbook pages (including instrument conditions), bench sheets, instrument readout records, computer printouts, chromatographic charts, rawdata summaries, correspondence, memoranda, and document inventory; 3. Data validation reports; and 4. All test results of construction testing. D. The Respondents shall also use an automated data management systemto facilitate standardization of reporting and evaluation of data. This system shall be designedto prevent the introduction of errors or the loss or misinterpretation of data. E. For the periodduring which this Order is in effect, the Respondents shall permit EPA, the State, and their authorized representatives to inspect and copy all non-privileged records, files, maps, and other documents, writings, or depictions pertainingto implementation of this Order. Any trade secret material claimed by the Respondents as "confidential business information" under 40 C.P.R. Part 2 shall be kept in a separate file. If EPA, the State, or their authorized representatives take notes or copy information or documents fromthe confidential file, the information or documents will be disclosedto the

1 5public only in accordance with 40 C.F.R. Part 2 or Colo. Rev. Stat. § 24-72-204, respectively. F. The Respondents shall maintain a running log of privilegeddocuments on a document-by-document basis containing the date, author(s), addressee(s), the privilege claimed (e.g., attorney work product, attorney-client), and the factual basis for the assertion of the privilege. The privilege log shall be kept on file and available for inspection in the central file described in Section XIII(A). EPA may at any time challenge claims of privilege through negotiations or otherwise as provided by law or the Federal Rules of Civil Procedure. G. All records, data, factual information, and other documents submitted by the Respondents to EPA and the State pursuant to this Order shall be subject topublic inspection unless identified as confidential when submitted by the Respondents and determined by EPA or the Stateto be such, in conformance with 40 C.F.R. Part 2 or applicable State law respectively. The data, factual information, and documents so identified as confidential will be disclosed only in accordance with such EPA regulations or State law. The Respondents may assert confidentiality claims only in accordance with sections 104(e)(7)(E) and (F) of CERCLA, 42 U.S.C. §§ 9604(e)(7)(E) and (F)• H. The Respondents shall preserve during the pendency of this Order and for a minimum of sixyears after the remedial action has been completed, all records and documents in their possession or in the possession of their divisions, employees, agents, contractors, or attorneys which relate in any way tothis Order or Work performed hereunder, notwithstanding any document retention policyto the contrary. At the end of this six-year period, the Respondents shall make such records available to EPA for inspection or shall provide the original or copies of such documents to EPA. If EPA requests that some or all documents be preserved beyondthis six-year period, the Respondents shall either comply with EPA's request or provide to EPA the original or copies of the retained documents. XIV. MODIFICATIONS TO ORDER A. No oral advice, guidance, suggestions, assurances, or comments by the United States, the State, or their authorized representatives shall modify the terms or conditions of this Order or relieve the Respondents of their obligations under this Order. B. If the Respondents seek to deviate from the approved Work Plan, the Respondents' Project Manager shall submit a written request to EPA outliningthe proposed Work Plan modification and the basis therefor. If EPA approves the Work 1 6Plan modification in writing, such modification shall be deemed incorporated into this Order. Deviation from the Work Plan without EPA approval is a violation of this Order. XV. EFFECTIVE DATE AND CONFERENCE OPPORTUNITY A. This Order shall be effective 30 days following the Respondents' receipt of a copythis Order. The schedule for performance of Work shall be calculated from the effective date of this Order. B. Within five days of receipt of this Order, the Respondents may request a conference with EPA to discuss this Order, including its applicability, the appropriateness of activities required to be undertaken, and other issues and contentions relevant to issuance of this Order. Any request for a conference shall be made to Elizabeth D. Mullin, Assistant Regional Counsel, EPA Region VIII, 999 18th Street, Suite 500, Denver, Colorado 80202-2405, (303) 294-7188. At any such conference, the Respondents may appear inperson or through an attorney or other designated representative. Such conference is not, and shall not be deemed to be, an adversarial hearing or part of a proceedingto challenge this Order, and no official stenographic record of such proceeding shall be kept. C. Within seven days of receipt of this Order, the Respondents shall informEPA in writing as to whether they intend to comply with the Order. XVI. OTHER MATTERS A. EPA shall make the final determination as to the sufficiency and/or acceptability of all work conducted under this Order, includingbut not limitedto each required submittal. B. In the event that EPA determines that the activities performed pursuant to this Order or any emergency circumstances may pose a threat to public health or welfare or the environment, EPA may direct the Respondents to stop further implementation of Work pursuant to this Order or may take or order further actions to abate the threat. This provision is not to be construed to limit anypowers EPA may have under CERCLA, the NCP, or any law or regulation. C. Nothing herein shall preclude EPA from taking action to enforce this Order, nor from taking any action pursuant to sections 104, 106, 107, or 122 of CERCLA, 42

## u.s.c. §§ 9604, 9606, 9607, or 9622, nor any and all actions pursuant to CERCLA or any other available legal authority, includingwithout limitation seeking injunctive relief, monetary penalties, and punitive damages. Nothing herein shall preclude EPA from undertaking any additional enforcement actions and/or other 1 7actions itmay deem necessary for any purpose, including the prevention or abatement of an imminent and substantial danger to the public health or welfare or the environment arising from site conditions. D. Neither EPA nor the United States, by issuance of this Order, assumes any, liability for any acts or omissions of the Respondents, nor employees, agents, contractors, or consultants of the Respondents, in carrying out any action or activity pursuant to this Order. Neither EPA nor the United States shall be held a partyto any contract entered into by the Respondent, nor by their employees, agents, contractors, or consultants in carrying out any action or activitypursuant to this Order. E. Nothing in this Order shall affect any right, claim, interest, defense, or cause of action of any party against any entity not subject to this Order for any liability itmay have arising from or relating in any way to the site. Nothing in this Order shall be deemed to constitute a decision on preauthorization under section 111(a)(2) of CERCLA, 42

## u.s.c. § 9611(a)(2). F. Nothing in this Order shall constitute or be construed as a satisfaction or release from liability for Respondents, nor their agents, contractors, lessees, successors, or assigns with respect to any conditions or claims arising as a result of past, current, or future operations, ownership, or use or disposal of hazardous substances at the site. G. EPA reserves its rights to seek, pursuant to section 107 of CERCLA, 42

## u.s.c. § 9607, recovery from the Respondents of the United States' costs incurred in oversight, administration, and enforcement of this Order, and any other past and future costs incurredby the United States in connection with response activities pursuant to CERCLA at the site. H. Nothing in this Order should be construed to release the Respondents from any liability for failure to performthe Work in accordance with the Order, the DOW, or the EPA-approved Work Plan. XVII. ENFORCEMENT Any violation of this Order or any portion thereof by the Respondents shall be enforceablepursuant to sections 106(b) and 113(b) of CERCLA, 42 U.S.C. §§ 9606(b) and 9613(b). The Respondents may be subject to civilpenalties of up to $25,000 per day per violation of this Order, and/or punitive damages (includingtreble damages), as provided in sections 106(b) and

18107(c)(3) of CERCLA, 42

## u.s.c. §§ 9606(b) and 9607(c)(3), for failure to comply with the terms of this Order. IT IS SO ORDERED.

Robert L. Duprey, rec r Hazardous Waste Management Division Region VIII U.S. Environmental ProtectionAgency

Effective Date:

1 9 Date of Issuance