UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION VIII 

Jllllllllllllll/111111111111111111111111 

276315 

999 18th STREET - SUITE 500 

DENVER, COLORADO 80202-2466 

Ref: SHWM-SR 

Glenn Anderson 

ASARCO 

1019 8th Street, Suite 304 

Golden, Colorado 80401 

David A. Baker 

April 30, 1993 

Vice President, Environmental Affairs 

Newrnont Gold Company 

1700 Lincoln Street 

Denver, Colorado 80203 

ADMINISTRATIVE RECORD 

TRANSMITTAL OF FIRST AMENDMENT 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-for many months 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 Yak Tunnel 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 continued performance of the remedy 

and authorizes certain changes from the Record of Decision (ROD) 

pursuant to the Explanation of Significant Differences (ESD) . 

r;:R·) 

~--------- KEY WORDS 

I r;. 7. I 

Printed on Rocyc/ed Psper 

-· 
Future actions which the Respondents must take to implement 

the ESD include, but may not be limited, to the following: 

(1) Continued operation and maintenance of the water 

treatment system to treat all contaminated water from 

the Yak Operable Unit; 0 & M is not to preclude 

integration of the facility with treatment needs for 

additional remedial actions for the Site. 

(2) Operation and maintenance of a surface and ground water 

monitoring program to establish baseline water quality 

and to evaluate hydrologic changes. 

(3) A statement 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 with ARARs, is cost-effective, and yet 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 would be the stipulation by both parties that the 

nature and extent of remaining remedial activities would be 

determined after a consideration by EPA of tributary flows and 

rock stability conditions encountered during a joint Yak Tunnel 

inspection. 

fyH~~ Remedial Project Manager 

Attachments: 

First Amendment to UAO 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 LIABILITY ACT, 

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 Section XIV, 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 determined upon tunnel 

inspection and/or rock mass sampling; implementation of the 

ground water and surface water monitoring program in accordance 

with the approved Routine Monitoring Plan; continued 0 & M of 

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 also mean the Explanation of 

Significant Differences attached to the Order Admendment as Exhibit 1. 

1 
IV. FINQINGS OF FACT 

EPA has made the following Findings of Fact concerning the 

California Gulch Superfund Site, Yak Tunnel Operable Unit: 

1. The findings of fact entered under the original 

Unilateral Administrative Order, Section IV., are incorporated by 

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 

proposed plan, 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 Yak Tunnel Operable 

Unit as described in Order Docket 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 California Gulch Superfund Site, Yak Tunnel ou #1, EPA 

makes the following Conclusions of Law: 

1. The Conclusions of Law entered under the Order, Section 

V, are hereby incorporated by reference. 

VI. DETERMINATIONS 

Based on the Findings of Fact and the Conclusions of Law set 

forth above, and the entire Administrative Record, EPA has 

determined as follows: 

1. The actions required by this Order Amendment 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 

and minimize litigation. 

2. Respondents are qualified to perform the actions set 

forth in this Order Amendment promptly and properly. 

2 
VIII. WORK TO BE PERFORMED 

1. Respondents shall conduct the Work in accordance with 

the attached Statement of Work (SOW), Attachment 1. In the event 

of any inconsistency between this Administrative Order Amendment, 

including provisions of the original Order, and the SOW, and 

associated schedules, attachments, or exhivits, or other 

documents incorporated herein, 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 PROTECTION AGENCY 

REGION VIII 

MAR 29~9~w EPA Region VIII 

Regional Hearing Clerk 

IN THE MATTER OF: ) 

) 

ASARCO INCORPORATED, NEWMONT MINING ) DOCKET NO. CERCLA-VIII-89-20 

CORPORATION, RES-ASARCO JOINT ) 

VENTURE, AND RESURRECTION MINING ) COMPANY I ) 

) 

RESPONDENTS. ) 

) 

PROCEEDING UNDER SECTION 106 ) 

OF THE COMPREHENSIVE ENVIRONMENTAL ) RESPONSE, COMPENSATION, AND ) 

LIABILITY ACT of 1980, 42 U.S.C. ) 

§ 9606 (1982), AS AMENDED. ) 

ADMINISTRATIVE ORDER 

FOR: YAK TUNNEL OPERABLE UNIT REMEDIAL DESIGN/REMEDIAL ACTION 

TABLE OF CONTENTS 

I. JURISDICTION • • • • • . . • • . • • • • . . • . . . • • • . • • • • . • • • • • • . • • . . 3 

II. PARTIES BOUND • • • • • • . • . • • • • • • • • • • . . . • • • • • • • . . • • • • • • • • 3 

III. DEFINITIONS . • • • • • . • • • • . . . . • • • • • • • • . • • • • • • • • • • . • • • • • • 3 

IV. FINDINGS OF FACT • . • • • . • • • • . . • • • • • • • • • . • • • • • • • • • • • . . • 4 

V. CONCLUSIONS OF LAW •••.•••••••••••••••••••••••••••••• 5 

VI. DETERMINATIONS • • • • • • • . • • • • • • • • • • • • • • • • • • • . • • • • • • • • • • 5 

VII. 

VIII. 

IX. 

X. 

XI. 

XII. 

XIII. 

NOTICE TO THE STATE ••••••••••••••••••••••••••••••••• 6 

WORK TO BE PERFORMED ••••••••••••••••••••••••••.••••• 6 

IMPLEMENTATION REQUIREMENTS ••••••••••••••••••••••••• 7 

REPORTING REQUIREMENTS •••••••••••••••••••.••••••.••• 8 

PROJECT MANAGERS • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • . 1 2 

SITE ACCESS AND SAMPLING •••••••••••.••••••••.•••••• 12 

DOCUMENTATION, AVAILABILITY OF INFORMATION, AND 

RECORD RETENTION • • • • • • • • • . . • • • • • • • • • . • . • • • • • • • . • • • • 1 4 
XIV. 

XV. 

XVI. 

XVII. 

MODIFICATIONS TO ORDER ••••••••••••••••••••••••••••• 16 

EFFECTIVE DATE AND CONFERENCE OPPORTUNITY •••••••••. 17 

OTHER MATTERS • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 1 7 

ENFORCEMENT • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 1 8 

2 
I. JURISDICTION 

This Administrative Order (Order) is issued pursuant to the 

authority vested in the President of the United States by section 

106(a) of the Comprehensive Environmental Response, Compensation, 

and Liability Act 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 delegated to 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 any person, 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 and Maintenance" means long-term operations 

and maintenance of the remedial action, conduct of the monitoring 

program, and implementation of the contingency plan as set forth 

in the ROD and detailed 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 to the procedures set 

forth herein. 

3 
G. "Remedial action" means the Work described in Section IV 

of the DOW. 

H. "Remedial design" means the Work described in Section 

III of this DOW. 

I. "ROD" means the Record of Decision documenting the 

selection of a remedial alternative for the Yak Tunnel attached 

as Exhibit 2 and the modification to the 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 related to 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 shallow ground 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. 

4 
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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 inflow of water into the tunnel system, a water 

treatment facility, a monitoring program, operations and 

maintenance, and a contingency plan. 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 preceding Findings 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: 

5 
1 . The actual or threatened release of hazardous substances 

from the Yak Tunnel may present an imminent and substantial 

endangerment to the public health or welfare or the environment; 

and 

2. The actions required by this Order are necessary to 

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 opportunity to 

participate in negotiations regarding the scope of this response 

action pursuant 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 shall plan, 

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 

consultation with 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 by the DOW 

shall be subject to review and modification by EPA, in 

consultation with the State. In the event of any disapproval, 

EPA shall specify, in writing, any deficiencies 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 revised document incorporating or 

addressing all of EPA's modifications. At the time a revised 

document is submitted, the Respondents shall submit a cover 

letter describing their response to each EPA modification and a 

certification that no other changes were made other than those 

modifications required by EPA. Failure to incorporate or address 

any EPA modification in accordance with these procedures is a 

violation of this Order. EPA may unilaterally modify 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 effective prior to the date of completion of Work 

under this Order. The Respondents 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, including the 

requirements of all applicable or relevant and appropriate 

Federal and State laws and regulations (ARARs) to the extent 

required by Appendix C of the ROD. 

C. Activities undertaken by Respondents shall be in 

compliance with all other Federal, State, and local laws and 

regulations, including permit requirements, unless an exemption 

from such permit requirement is provided 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 to perform Work 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 law may include, but is not 

limited to, obtaining approval of a plan of substitute supply 

from the State Engineer and obtaining approval of a plan for 

augmentation of water from the Water Court for Water Division No. 

2 • 

E. The remedy includes baseline measurements of the quality 

of the Parkville Water District drinking water supply, an ongoing 

monitoring program to predict and detect any adverse hydrologic 

changes, and a contingency plan to address such changes. If the 

quality of any Parkville Water District drinking water supply 

source, as measured at current intake points, deteriorates as a 

result of the remedial action, the Respondents shall implement 

appropriate contingency measures to restore the drinking water 

supply to its baseline quality level through tasks including, but 

not limited to, treating the water, augmenting the 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 historic properties which may be affected 

7 
by implementation of the Work. The Respondents shall assist EPA 

in the consultation process 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 performing Work 

pursuant to this Order. All tasks performed shall be under the 

direction and supervision of qualified personnel 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 hired to perform any Work and shall condition the 

performance of Work on compliance with the relevant requirements 

of this Order. 

H. On or before the effective date of this Order, the 

Respondents shall notify EPA 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 necessary to perform work 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 daily reports and construction activities to verify 

that all work complies with the EPA-approved design; note and 

resolve all discrepancies immediately; and review and initial the 

daily, weekly, and monthly reports described below. 

X. REPORTING REQUIREMENTS 

A. During the course of Work under this Order, the 

Respondents shall submit the following reports to EPA and the 

State. 

1. Monthly Progress Reports. The Respondents shall 

submit monthly progress reports containing the following 

information: 

a. A description of the actions taken toward 

achieving compliance with this Order, including 

8 
plans and actions completed, during 

the reporting period; 

b. A description and estimate of the percentage of 

the Work completed; 

c. A description of any activities that deviated from 

or were carried out in addition to those provided 

for in the Work Plan, which occurred during the 

reporting period; 

d. Summaries of significant findings pertaining to 

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. A description of unresolved problems or potential 

problems encountered during the reporting period 

that may cause a performance delay and a 

description of efforts made to mitigate those 

delays; 

g. Change orders, nonconformance reports, claims 

made, and actions taken to rectify problems; 

h. Changes in personnel during the reporting period; 

i. Projected work for the next reporting period, 

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 Program Form 

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 submitted to EPA and the State on or 

before the 10th day 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 and Weekly Construction Reports. During 

construction, the Respondents shall prepare daily and weekly 

reports on construction activities discussing, at a minimum, the 

9 
daily activities, field adjustments, change orders, summaries of 

problems and actions to rectify problems, and such information as 

is customary in the industry. The daily reports and the weekly 

report shall be compiled and delivered to EPA and the State each 

week. 

3. Operations and Maintenance (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. A description of O&M activities performed during 

the reporting period; 

b. A description 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. A description and summary of the results of all 

monitoring performed 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 

Monitoring Report, necessitating the 

implementation of contingency measures; 

e. Identification of any problems or potential 

problems and a description of all steps taken or 

to be taken to rectify the problems; 

f. An appendix containing all validated data and 

supporting documentation on Contract Laboratory 

Program Form I's or in a similar format collected 

during the reporting period; 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 Review Reports. The Respondents shall 

prepare and submit the five-year review reports described in the 

DOW to EPA and the State. These Reports shall be due on 

September 7, 1993, and on the same date every five years 

thereafter. 

1 0 
B. All documents required to be submitted pursuant to this 

Order shall be hand delivered or sent by first-class mail to the 

following persons or to such other persons as the parties 

hereafter may designate in writing: 

1. Documents submitted to 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 submitted to EPA shall also be submitted 

in triplicate to: 

California Gulch Site Manager 

Colorado Department of Health 

Hazardous Materials and Waste 

Management Division 

4210 East 11th Avenue 

Denver, Colorado 80220 

and in duplicate 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 relating to public health or welfare or 

the environment related to 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 certify that 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 supervisory responsibility for the 

person(s) who, acting under my direct instructions, made the 

verification that this information is true, accurate, and 

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complete." 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 corporate procedures. 

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, and telephone 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 from the Site shall not be a cause for 

stoppage of Work. 

D. The State through its Project Manager or any other 

chosen representative shall be entitled to full and meaningful 

participation in any technical discussions regarding the 

implementation of the Work prescribed by this Order. 

XII. SITE ACCESS 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 

being present on the site at any and all times and from observing 

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any and all activities conducted pursuant 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 by the Respondents is required for the 

proper and complete performance 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-term monitoring 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 entry pursuant 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 utilized by Respondents in implementing this 

Order. Such laboratories shall perform analyses according to EPA 

methods or other methods deemed satisfactory to 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) program equivalent to that 

which is followed by EPA. 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 periodically conduct an audit of any 

laboratory that will analyze samples under this Order during the 

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time 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 Program need 

not be audited. 

2. Conduct at least one field audit per year during 

sampling activities to verify that field samplers are correctly 

following sampling procedures described in the Sampling and 

Analysis Plan. Corrective actions are to be taken immediately to 

correct any deficiencies. Respondents must also report serious 

deficiencies to EPA and the State within 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 Program methods. 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 

system with the following objectives: 

1 . Creation of a central file containing all 

documents pertaining to 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 

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4. Establishment of procedures to ensure that all 

documents are routinely placed 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) including title 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 period of 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 collected under 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, raw data 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 system to facilitate standardization of reporting and 

evaluation of data. This system shall be designed to prevent the 

introduction of errors or the loss or misinterpretation of data. 

E. For the period during 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 

pertaining to 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 from the confidential 

file, the information or documents will be disclosed to the 

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public 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 

privileged documents 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 to public inspection 

unless identified as confidential when submitted by the 

Respondents and determined by EPA or the State to 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 six years 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 to this 

Order or Work performed hereunder, notwithstanding any document 

retention policy to 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 beyond this 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 outlining the proposed Work Plan 

modification and the basis therefor. If EPA approves the Work 

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Plan 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 copy this 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 in person 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 proceeding to 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 inform EPA 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, including but not limited to 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 any powers 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, including without 

limitation seeking injunctive relief, monetary penalties, and 

punitive damages. Nothing herein shall preclude EPA from 

undertaking any additional enforcement actions and/or other 

1 7 
actions it may 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 party to any contract entered into by the Respondent, 

nor by their employees, agents, contractors, or consultants in 

carrying out any action or activity pursuant 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 it may 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 

incurred by 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 perform the 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 enforceable pursuant to sections 106(b) and 

113(b) of CERCLA, 42 U.S.C. §§ 9606(b) and 9613(b). The 

Respondents may be subject to civil penalties of up to $25,000 

per day per violation of this Order, and/or punitive damages 

(including treble damages), as provided in sections 106(b) and 

18 
107(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 Protection Agency 

Effective Date: 

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Date of Issuance