UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION VIII UNITED STATES DEPARTMENT OFTHE ARMY UNITED STATES DEPARTMENT OFTHE INTERIOR ROCKY MOUNTAIN REGION AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY IN THE MATTER OF: ROCKY MOUNTAIN ARSENAL, FEDERAL FACILITY

COLORADO AGREEMENT PURSUANT TO CERCLA SEC`nON 120 UNITED STATES DEPARTMENT

OFTHE ARMY SHELLOIL COMPANY Docket No. CERCLA VIH-89-13

Federal FacilityAgreement Pursuant to Section 120 of the Comprehensive Envirom-nental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. S§ 9601-9675

FEDERAL FACILITYAGREEMENT



## B8900038TABLE OF CONTENTS Page 1. JURISDICTION ........................................ I ii. PURPOSE . ......................................... 3 Ill. EFFECTIVE DATE, PUBLIC COMMENT AND EFFECT ON PRIOR AND OTHER AGREEMENTS ................. 6 (i) Effective Date ofAgreement ......................... 6 (ii) Public Review ofAgreement ......................... 7 (iii) Interpretation with Respect to Other Agreements .......... 7 (iv) Relation to Future Consent Decree .................... 7 IV. THE SITE . ......................................... 8 V. STATEMENT OF FACTS ................................ 8 VT. CONCLUSIONS OF LAW ............................... 11 V11. DETERMINATIONS .................................. 12 Vill. ROLE OF DOI ....................................... 13 ix. ROLE OFATSDR ..................................... 14 X. ROLE OFTHE STATE ................................. 15 xi. LEAD AGENCIES ...................................... 15 X11. OPERABLE UNITS .................................... 15 xill. ROLE OFCOUNSEL .................................. 16 XIV. DEFINITIONS ......................................... 16

xv. RMA COMMITTEE .........................I...........26 XV1. RMA COLTNCIL ...................................... 27
XVII. STEERING AND POLICY COMMITTEE ('SAPC') ............ 28
XVIII. FINAL REVIEW COMMITTEE ("FRC') .................... 28Page XIX. TECHNICAL REVIEW COMMITTEE ('TRC-) ................)9 ADOPTION OFTECHNICAL PROGRAM PLAN ............. 30 (i) Purpose ofTechnical Program Plan ....................30 (ii) Development ofDrafts ofTechnical Program Plan ................................... 31 (iii) Approval ofTechnical Program Plan .................. 32 (iv) Subsequent Extensions ofDeadlines ................... 33 (v) Amendment ofthe Technical Program Plan ............. 33
XXI. EXCHANGE AND PRESERVATION OF INFORMATION ...... 33 1y_X11. ASSESSMENT AND IMPLEMENTATION OF INTERIM RESPONSE ACTIONS ........................ 37
XXITI. EMERGENCY ACTIONS ............................... 43
XXIV. REMEDLAJ_ INVESnGATION/FEASIBILITY STUDIES ........ 45 (i) Responsibilities for On-Post Operable Unit .............. 45 (ii) Responsibilities for Off-Post Operable Unit ............. 46 (iii) Product Managers ................................ 46 (iv) Interaction ofLead Agency and Lead Party ............. 46 (v) Designation ofNew,Products and Subproducts ........... 46 (vi) Effect ofNew Product or Subproduct Designation .................................... 47 (vii) Revision ofOn-Going RI Products or Subproducts, .................................... 47 (viii) Preparation ofNewTechnical Plans ................... 47 (a) Applicability ............................... 47Page (b) Initial Effort to Reach Consensus onthe Scope ofWork for New Technical Plans ......... 48 (c) Draft Technical Plans for New Products and Subproducts ........................... 48 (d) Review and Comment on DraftTechnical Plans ................................... 48 (e) Draft Final Plans and Response to Comments ............................... 49 (f) Availability ofDispute Resolution ............... 49 (g) Finalization ofNew Technical Plans .............. 49 (ix) On-Going Technical Plans .......................... 50 (x) Draft and Final Reports for Products and Subproducts ................................ 50 (a) Applicability ............................... 50 (b) Product and Subproduct Reports for On-Post Operable Unit ...................... 51 (c) Product and Subproduct Reports for Off-Post Operable Unit ....................... 53 (d) Meetings ofthe RMA Committee on the Development ofProducts and Subproducts .............................. 53 (e) Identification and Determination of Potential ARARs .......................... 53 (f) Review and Comment onDraft Product and Subproduct Reports ..................... 55 (g) Availability ofDispute Resolution for Draft Final Product Reports ................ 56 (h) Finalization ofProduct Reports ................. 56 (i) Subsequent Modifications ofProduct Reports ................................. 57 Other Deliverables .......................... 58Paoe (k) Remedial Investigation/Feasibility Study Reports ................................. 58 XXV. RECORDS OF DECISIONS ("RODs") ...................... 59 (i) Contents ofEach ROD ............................ 59 (ii) Draft RODs .................................... 59 (iii) Review and Comment on Draft RODs ................. 59 (iv) Draft Final RODs ................................ 60 (v) Availability ofDispute Resolution .................... 60 (vi) Finalization ofRODs .............................. 60 (vii) Publication and Judicial Review ofRODs ............... 61 (viii) Modification ofRODs ............................. 62 XXVI. DEADLINES AND SCHEDULES AND EXTENSIONS THEREOF 62 (i) Prior Procedure .................................. 62 (ii) Development ofDeadlines .......................... 62 (iii) RI/FS Deadlines for the On-Post Operable Unit ................................. 62 (iv) RI/FS Deadlines forthe Off-Post Operable Unit ..................................63 (v) Extension ofERA RI/FS, Supplemental Response Action, Design and Implementation Deadlines .......... 63 (vi) Schedules and Extensions Thereof .................... 65 XXVH. FORCE MAJEURE .................................... 65 XXVIH. ENFORCEAB= ........ ........................... 66 XXIX. STIPULATED CIVILPENALTIES ......................... 67 XXX. DISPUTE RESOLUTION ............................... 68 ,XxX1. CONTENTS OF ADMINISTRATIVE RECORD FOR EACH RI/FS ROD, CUSTODIAN AND JARDFC ................. 72 (i) Contents ofAdministrative Record for On-Post ROD ................................. 72 (a) Pre-Plan RI/FS Activity ....................... 72 (b) Other Documents Governing the RI/FS Process ..... 72

iv -Pacea (c) NPLListings ............................... 72 (d) The RI/FS Plan ............................. 73 (e) IRAs .................................... 73 (f) Products, Subproducts and Other Deliverables ...... 73 (g) RI/FS Report for Each ROD .................. 74 (h) SAPC or FRC Activities ...................... 74 (i) RMA Corrunittee Activities .................... 74 RNIA Council Activities ....................... 75 (k) JARDFCActivities .......................... 75 (1) TRC Activities ............................. 75 (m) Local Governments' Involvement ................ 75 (n) Interagency Agreements ....................... 75 (0) Executive Orders ............................ 75 (p) Deadlines ................................. 75 (q) ROD .................................... 75 (r) Other Documents ........................... 76 (s) Index .................................... 76 (ii) Contents ofAdministrative Records for RODs for Other Operable Units and ERAs ............ 76 (iii) Supplementation ofAdministrative Record for On-Post ROD ................................. 76 (iv) Custodian ofAdministrative Records .................. 77 (v) Joint Administrative Record and Document Facility Committee .............................. 77 (vi) Challenges to Administrative Record .................. 77 (vii) Joint Administrative Record and Document Facility ("JARDF') .................... : 78 XXXH. COMMUNTTY RELATIONS ............................. 78 XXXIIII. ASSESSMENT AND SELEC717ION OF SUPPLEMENTAL RESPONSE ACTIONS ................................ 78

v -Page XXXIV. DESIGN AND IMPLEMENTATION OF FINAL AND SUPPLEMENTAL RESPONSE ACTIONS .................. 80 (i) ResponseýActions Covered by the Section ............... 80 (ii) Design and Implementation Deadlines ................. * 80 (iii) Role ofthe RMA Committee and theRMA Council ....... 80 (iv) Shell's Right,to Participate as Lead Party .............. 82 (v) Design ofResponse Actions ......................... 82 (vi) Implementation ofResponse Actions .................. 83 (vii) Right toJudicial Review ........................... 84 (viii) Extensions ofDeadlines ............................ 84 (ix) EPA Certification ................................ 84 XX,XV. OPERA11ON AND MAINTENANCE OF RESPONSE ACTION STRUCTURES AND MONITORING OF RESPONSE ACTIONS. 85 XXXVI. PERIODIC REVIEW ................................... 87 X)LXVII. NOInFICATION ...................................... 87 XXXVIII. SPECIAL EXEMPTIONS ................................ 90 KYJUX. JUDICIALREVIEW .................................... 90 XL. FUNDING ........................................ 91 1XLI. ATSDR HEALTH ASSESSMENT OR HEALTH EFFECTS STUDY 92 XLII. NATIJRAL RESOURCE DAMAGE ASSESSMENT ............ 93 1XLIII. SHELL PARTICIPATION IN RESPONSE ACT71ONS ........... 95 XLIV. RESTRICIIONS ON OWNERSHIP, USE AND TRANSFER ..... 97 XLV. AMENDMENT ...................................... 100

EXHIBIT A THE ARSENAL EXHIBIT B THE SITE EXHIBIT C AGREEMENT BYTHE STATE TO BE BOUND BY DISPUTE RESOLUTION

vi -UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION VIII UNITED STATES DEPARTMENT OFTHE ARMY UNITED STATES DEPARTMENT OFTHE INTERIOR ROCKY MOUNTAIN REGION AGENCY FOR TO)UC SUBSTANCES AND DISEASE REGISTRY IN THE MATTER OF: ROCKY MOUNTAIN ARSENAL, FEDERAL FACILITY

COLORADO AGREEMENT PURSUANT TO CERCLA SECTION 120 UNITED STATES DEPARTMENT

OFTHE ARMY SHELLOIL COMPANY Docket No. CERCLA VIII-89-13
Federal Facility Agreement Pursuant to Section 120 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. S§ 9601-9675

FEDERAL FACILITY AGREEMENT

Based on the information available to the Organizations on the effective date of this Agreement and without trial or adjudication ofany issues offact or law; the Organizations agree as follows: 1. JLJRISQIC`TION Each Organization is entering into this Agreement pursuant to the following authorities: (i) EPA enters into those portions ofthis Agreement that relate to the RI/FS pursuant to Sections 104(b), 120(e)(1), 120(e)(6), 120(f) and 122(d)(3) ofCERC1A 42 U.S.C. §§9604(b), 9620(e)(1), 9620(e)(6), 9620(f) and 9622(d)(3), and Executive Order 12580;(ii) EPA enters into those portions of this Agreement that relate to IRAs. Final Response Actions and Supplemental Response Actions pursuant to Sections 120(e)(2), 120(e)(6), 120(f) and 122(d)(3) ofCERCLA, 42 U.S.C. §§ 9620(e)(2), 9620(e)(6), 9620(f) and 9622(d)(3), and Executive Order 12580; (iii) Ile Army enters into those portions ofthis Agreement that relate to the RI/FS pursuant to Seciions 104(b), 120(e)(1), 120(e)(6), 120(f) and 122(d)(3) of CERCLA, 42U.S.C. §§9604(b), 9620(e)(1), 9620(e)(6), 9620(f) and 9622(d)(3), Executive Order 12580,the National Environmental Policy Act, 42 U.S.C. §4321, and the Defense Envirorunental Restoration Program, 10 U.S.C. S2701, et seQ. (iv) The Army enters into those portions ofthis Agreement thatrelate to IRAs, Final Response Actions and Supplemental Response Actions pursuant to Sections 104(b)(2), 120(e)(2), 120(e)(6), 120(f) and 122(d)(3) ofCERCLA, 42 U.S.C. §§9604(b)(2), 9620(e)(2), 9620(e)(6), 9620(f) and 9622(d)(3), and Executive Order 12580. (v) The Army enters into those portions ofthis Agreement that relate tothe Natural Resource Damage Assessment pursuant to Section 107(f), 42 U.S.C. § 9607(f). (vi) DOI enters into those portions ofthe Agreement that relate toits responsibilities in the RI/FS pursuant to Sections 104(b)(2) and 120(e)(1) ofCERCLA, 42 U.S.C. H 9604(b)(2) and 9620(e)(1), Executive Order 12580,the Endangered Species Act, 16U.S.C. S 1531 et seQ., the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seQ. and the Eagle Protection Act, 16 U.S.C. §668; (vii) DOI enters intothose portions ofthe Agreement thatrelate to the Natural Resource Damage Assessment pursuant to Sections 107(f) and 1226)(2) ofCERCLA, 42 U.S.C. §§ 9607(f) and 96226)(2). (viii) ATSDR enters into those portions ofthe Agreement that relate to its responsibilities in the RI/FS pursuant to Section 104(i)(6) and 120(e)(1) ofCERCLA, 42 U.S.C. §§ 9604(i)(6) and 9620(e)(1), and Executive Order 12580. (ix) Shell enters into those portions ofthisAgreement that relate to the RI/FS pursuant to Sections 104(b), 104(i)(6), 120(e)(1), 120(e)(6) and 122(d)(3) ofCERCLA, 42 U.S.C. §§ 9604(b), 9604(i)(6), 9620(e)(1), 9620(e)(6) and 9622(d)(3). (x) Shell enters into those portions ofthisAgreement that relate to IRAs, Final Response Actions and Supplemental Response Actions pursuant to Sections 104(b)(2), 120(e)(2), 120(e)(6) and 122(d)(3) ofCERCLA, 42 U.S.C. §§9604(b)(2), 9620(e)(2), 9620(e)(6) and 9622(d)(3).

-2-(xi) Shell enters into those portions of this Agreement that relate to the Natural Resource Damage Assessment pursuant to Section 107(f) ofCERCLA, 42 U.S.C. § 9607(f). (xii) Ifthe State becomes a Signatory, it enters into thoseportions ofthis Agreement that relate to the RI/FS pursuant to Sections 120(f) and 121(f) ofCERC" 42 U.S.C s§ 9620(f) and 9621(f). (xiii) Ifthe State becomes a Signatory, it enters into those portions ofthis Agreement thatrelate to IRAs, Final Response Actions and Supplemental Response Actions pursuant to Sections 120(f) and 121(f) ofCERCLA, 42 U.S.C. 9620(f) and 9621(f). (xiv) Ifthe State becomes a Signatory, itenters into those portions ofthis Agreement that relate to the Natural Resource Damage Assessment pursuant to Section 107(f) ofCERCLA, 42 U.S.C. § 9607(f).

li. PURPOSE 2.1 Tlis Agreement is intended to establish aprocedure bywhich the Organizations will cooperate in the assessment, selection and implementation of Response Actions resulting from the release or threat ofrelease ofhazardous substances, pollutants or contaminants at orfrom the Arsenal. Prior to the effective date ofthisAgreement, the Army's, EPA's, DOI's, ATSDR's and Shell's participation in the RI/FS and the IRAs were governed bythe February 1, 1988, and June 7, 1988, proposed consent decrees. On the effective date ofthis Agreement, the Army's, EPA's, DOI'sATSDR's and Shell's participation shall be in accordance with this Agreement. 2.2 The general purposes ofthis Agreement are to: (a) Ensure thatthe environmental impacts atthe Site associated with past activities at theArsenal are thoroughly investigated and appropriate remedial action taken as necessary to protect the public health and the envirorunent. (b) Establish aprocedural framework and schedule fordeveloping, implementing and monitoring appropriate Response Actions at the Site in accordance with CERCLA and the NCP and any pertinent guidance issued by ATSDR, EPA, DOD
or DOIwhich is notinconsistent with CERCLA and the NCP. (c) Facilitate cooperation, exchange ofinformation and participation of the Organizations in such actions.

-3-Specifically, the purposes ofthis Agreement are to: (a) Provide for IRAs which are appropriate for the Site prior tothe implementation offinal remedial action(s) for the Site. 'Mis process is designed to promote cooperation among the Organizations in identifying IRAalternatives prior to selection offinal IRAs. (b) Establish requirements forperformance ofaRI to determine fully the nature and extent ofthe threat to the public health or the environment caused by the release or threatened release ofhazardous substances, pollutants or contaminants at orfrom the Arsenal and to establish requirements forthe performance ofa FS for the Site and toidentify, evaluate and select alternatives forthe appropriate remedial action(s) toprevent, mitigate orabate the release orthreatened release ofhazardous substances, pollutants orcontaminants at or from the Arsenal in accordance with CERCLA. (c) Identify the nature, objective and time for Response Actions to be taken at the Site. Response Actions at the Site shall attain that degree ofcleanup of hazardous substances, pollutants or contaminants mandated by CERCLA. (d) Implement the selected interim and final remedial action(s) in accordance with CERCLA and satisfy the requirements ofSection 120(e) ofCERCLA 42 U.S.C. § 9620(e), for an interagency agreement between EPA and the Army. (e) Assure compliance, through thisAgreement with all federal and State laws pertinent to the CERCLA cleanup ofthe Site. Assure compliance through this Agreement, with the Resource Conservation and Recovery Act of 1.976, as amended, and other federal and State hazardous waste laws and regulations for the matters covered herein. Itis the intent ofthe EPA, DOT and ATSDR thatthe Army's compliance with the terms and conditions ofthis Agreement and the Settlement Agreement shall constitute compliance with the Army's obligationsunder CERCLA, all other environmental laws applicable through CERCLA and the NCP with respect to the assessment and selection ofFinal Response Actions. It isthe intentofthe United States that Shell's compliance with the terms and conditions ofthis Agreement and the Settlement Agreement shall constitute compliance with Shell's obligations under CERCLA, all other environmental laws applicable through CERCLA and the NCP with respect to the assessment and selection ofFinal Response Actions. (f) Coordinate Response Actions at the Site with the mission and support activities atthe Arsenal. (g) Expedite the cleanup process forthe Arsenal to the extent consistent with protection ofhuman health and the environment.

-4-(h) Provide a process for the performance ofATSDR's Health Assessment or Heath Effects Study. (i) Provide for the performance ofthe Natural Resource Damage Assessment for the Site. .;..4 An important purpose ofthis Agreement is to ensure Shell's full participation in recognition ofthe unique factual circumstances that gave rise to this Agreement and ofthe important role that Shell has inthe cleanup ofthe Site. Thus, the United States has entered into this Agreement based on thisdetermination ofEPA, in consultation with the Army, that certain aspects ofthe RI/FS or IRAs will be done properly at the Site by Shell within the Deadlines and in amanner consistent with the NCP. To ensure that Shellwill meet the Deadlines and willperform RI/FS and IRA activity in a manner consistent with the NCP, the Organizations agree that Shell's obligationsunder this Agreement shall be enforceable directly against Shell to the same extent as under an administrative order entered pursuant to Sections 104(b), 120(e)(6), 1212(a) and 122(d)(3) ofCERCLA, 42 U.S.C. §§9604(b), 9620(e)(6), 9622(a) and 96224d)(3). Ifit is subsequently determined that SheU shall perform any Final Response Action or Supplemental Response Action at the Site, such a determination shall be set forth in a Consent Decree between the United States and Shell that is entered by the Court. 15 Another important purpose ofthis Agreement is to ensure the performance ofEPA's responsibilities at this Site and under thisAgreement in accordance with Section 120ofCERCLA, 42 U.S.C. §9620. To assist inthe performance ofthis EPA responsibility, the Army and Shell agree topay EPA Costs as defined in the Settlement Agreement payable and pursuant to Section XII ofthe Settlement Agreement. 2.6 Itis the goal ofthe Organizations that, following certification of completion ofthe Final Response Action for the On-Post Operable Unit, significant portions ofthe Arsenal will be available for open space forpublic benefit (including, but not limited to,wildlife habitat(s) and park(s)) consistent withthe terms ofthis Agreement. Portions ofthe Arsenal will be made available for such use atthe earliest practicable date consistent with any necessary Response Actions. 2.7 Ile Organizations intend that Response Actions at the Arsenal will be sufficient to assure thatgroundwater and surface water flowing beyond the Arsenal boundaries will be ofaquality thatis protective ofhuman health andthe envirorunent and that Response Actions willbe sufficient to prevent the vertical and horizontal migration ofon-post contaminated groundwater and surface water so thatoff-post surface water and groundwater may be used in areas outside ofthe Arsenal boundaries.
2.8 The Organizations intend bythisAgreement to provide for substantial and meaningful involvement ofthe State in the initiation, development and selection of

5 -Response Actions to be undertaken under this Agreement, and to establish a public participation process that allows local government representatives and interested members ofthe public to have a meaningful opportunity to participate in the planning and selection ofremedial actions, including but not limited to the review ofall applicable data as they become available-and the development ofstudies, reports and action plans. 2.9 It is the hope ofthe United States and Shell thatthis Agreement will ultimately be incorporated, alongwith terms from the Settlement Agreement, into a Consent Decree. Paragraphs 3.9-3.12 indicate how this Agreement would relate to such a Consent Decree. Itis the intent ofthe United States and Shell that upon entry ofa Consent Decree incorporating this Agreement, all ofthe terms ofthisAgreement shall become part ofthe Consent Decree, and shall be fully enforceable pursuant to the terms ofthat Decree. 2.10 It is the intent ofthe United States and Shell that this Agreement take effect as soon as possible, notwithstanding the absence ofaConsent Decree. Accordingly, paragraph 3.1 provides that this Agreement shall become effective upon execution bythe Army, EPA, DOI,ATSDR and Shell. Unless and until thisAgreement is incorporated into a Consent Decree thathas been entered by the Court, it shall be enforceable. 2.11 Pursuant to Sections 120(f) and 121(f) ofCERCLA, 42 U.S.C. §§ 9620(f) and 9621(f), the State shall have an opportunity toparticipate inthe assessment and selection ofResponse Actions undertaken pursuant to CERCLA. Accordingly, this Agreement provides that the State shall be afforded such an opportunity for all major phases ofthe assessment and selection ofResponse Actions forthe Site. _- 2.12 'ne United States and Shell recognize the importance ofencouraging the State to become a Signatory to thisAgreement so as to promote an orderly and efficient process for the State'sparticipation in the selection ofResponse Actions for the Site. Accordingly, the State will be given an opportunity to sign this Agreement regardless of whether there is a settlement ofthe Arsenal-related litigationbrought by the State against the Army and Shell.

111. EFFECTIVEDATE. PUBLIC COMMENT AND EFFECTON PRIOR AND OTHER AGREEMENTS (i) Effective Date ofAgreement 3.1 Upon thisAgreement beingexecuted by theAnny, EPA, DOI, ATSDR and Shell, it shallbecome effective, binding and enforceable, as ofFebruary 17, 1989. This document shall become binding on the State asprovided inparagraphs 10.1 and 10.2.

-6-3.2 When this Agreement becomes effective, it shall replace and supersede in its entirety the document attached as Exhibit Eto the Consent Decree lodged with the Court on February 1, 1988, and Exhibit E.tothe modified Consent Decree filed with the Court on June 7, 1988, in United States v. Shell Oil Co., Civil Action No. 83-C-2379. 3.3 Prior to the effective date ofthis Agreement, the document referred to as the RI/FS Process Document (attached as Exhibit E to the consent decree lodged with the Court on February 1,1988, and the modified consent decree filed with the Court on June 7, 1988, in United Statesv. Shell Oil Co., Civil Action No. 83-C-2379), and both such proposed consent decrees governed the performance ofthe RI/FS and IRAs for the Site. 3.4 In view of the changes in CERCLA and the NCP that have taken effect since February 1986, and EPA's and DOD'srecent guidance on CERCLA, the Army, EPA and Shell, through their respective executions ofthisAgreement, do substitute by majorityvote this Agreement for any still operative provisions ofthe December 6, 1982, Memorandum ofAgreement. (ii) Public Review ofAgreement 3.5 On or about February 21, 1989, the United States shall publish notice in at least one major Denver newspaper ofgeneral circulation that thisAgreement is available for a 30-day period ofpublic review and comment.

[PARAGRAPHS 3.6 AND 3.7 ARE RESERVED)

(iii) Inter2retation with Respect to Other Agreements 3.8 This Agreement shall be construed inharmony with the Settlement Agreement to resolve any ambiguities herein sothat, to the maximum extent possible, these documents are interpreted to be consistent. (iv) Relation to a Future Consent Decree 3.9 It is the hope ofthe United States and Shell that this Agreement (along with the Settlement Agreement) will be incorporated into, and specifically be made a part of, a Consent Decree that is entered as part ofthe settlement ofUnited States v. Shell Oil Co., Civil Action No. 83-C-2329.

7 -3.10 Prior to the incorporation ofthis Agreement into a Consent Decree, it may be amended pursuant to Section YCLV. Upon incorporation ofthisAgreement into a Consent Decree, it maybe amended ordy pursuant tothe process by which the Consent Decree may be modified, as set forth in such decree. 3.11 Ifthis Agreement is incorporated into a Consent Decree entered by the Court, in the event ofaconflict between thisAgreement and the Consent Decree, the terms and conditions ofthe Consent Decree shall govern. It is the intent ofthe Signatories that any ambiguities in this Agreement are to be interpreted so as tobe consistent with the terms and conditions ofany Consent Decree inwhich this Agreement may be incorporated. 3.12 '17his Agreement shall be binding onthe Signatories irrespective ofwhether itis incorporated into a Consent Decree. IV. THE SITE 4.1 The Site forpurposes ofthis Agreement includes: (a) The land outlined onthe plat attached hereto as ExhibitB, consisting ofthe Arsenal and the Off-Post Area; and (b) Such area in close proximity tothe land described in 4.1(a) as is necessary.for purposes of all Response Actions to remediate the release ofhazardous substances, pollutants or contarrdnants at orfrom the Arsenal.

V. STATEMENT OF FACTS 5.1 For purposes ofthisAgreement, the following constitute a summary ofthe facts upon which the Agreement is based. None ofthe f6llowing statements shall be considered admissions nor are they binding on any Organization other than forthe purposes ofthis Agreement. 5.2 1be Arsenal is a federal enclave and aformer chemical warfare agent and pesticide manufacturing facility located outside ofDenver, Colorado. 5.3 Property forthe facility was purchased bythe U.S. Government in 1942 and the Arsenal was constructed with the designated mission ofproducing chemical munitions for theArmed Forces. Chemicals manufactured bythe Army at the Arsenal have included both blister and nerve agents, incendiary chemicals, and intermediary chemical compounds forthe primary products. 717heArmy also blended hydrazine, a rocket fuel, forthe Air Force and conducted avariety ofdemilitarization operations at the Arsenal.

-8 -5.4 In 1947, certain portions ofthe Arsenal were leased to the Colorado Fuel and Iron Corporation (CF&I) and Julius Hyman & Company (Hyman) for chemical - manufacturing. At the Arsenal, CF&I manufactured chlorinated benzenes and DDTand Hyman produced several pesticides. Shell Oil Company became a successor tothe interests ofHyman in May 19541.and subsequentially leased aportion ofthe manufacturing facilities in the Arsenal South Plants Area for pesticide production. 5.5 As aresult ofoperations by the Army and Shell at the Arsenal, hazardous substances were spilled, leaked orreleased into the environment. 5.6 Tocontain the spread ofcontamination from the Arsenal, the Army implemented a Contamination Control Program. 5.7 This program was revised in December 1982, with the adoption ofthe Memorandum ofAgreement by the Army,EPA, Shell and the State, to include steps for remediation ofcontamination at the Arsenal. 5.8 The Army constructed the North Boundary System in 1978 and 1981 to treat and to control the migration ofgroundwater contamination off-post beyond the north boundary ofthe Arsenal. 5.9 In 1981, Shell constructed the Irondale Boundary System to treat and to control the migration ofgroundwater contamination off-post to the Irondale area. 5.10 The Army constructed the Northwest Boundary System in 1983 to treat and to control the migration ofgroundwater contamination off-post beyond the northwest boundary ofthe Arsenal. 5.11 In December 1983, the United States filed United States v. Shell Oil Co., Civil Action No. 83-C-2379 (D.Colo.) pursuant toCERC" for response costs and natural resource damages atthe Arsenal. Also, in December 1983, the State filed Colorado v. United States and Shell, Civil Action No. 83-C-2386 (D.Colo.), pursuant to CERCLA, forresponse costs and natural resource damages at theArsenal. 5.12 In October 1984, the Army commenced its RI/FS with respect toon-post and off-post contamination associated with the Arsenal. Until mid-1987, this activity tookthe form ofthe Armyconducting various RI/FS tasks in accordance with CERCLA and the NCP, and then preparing various draft reports thatwere forwarded to EPA, Shell and the State forreview and comment. 5.13 On November 18, 1985, the United States, Shell and the State stipulated in United States v. Shell Oil Co.that: (a) "Shell is a person who bycontract, agreement or otherwise arranged for disposal ortreatment, ofhazardous substances owned orpossessed by Shell, by

-9-another party orentity at a facility owned or operated by another party orentity and containing such hazardous substances, fromwhich there is a release, or a threatened release which caused the incurrence ofresponse costs, ofa hazardous substance." (b) 'Ile United States is the owner ofafacility from which there is a release or a threatened release which caused the incurrence ofresponse costs, of.a hazardous substance." 5.14 On August 21, 1987, EPA listed most ofthe Arsenal, except for the Basin Ffenced area, on the NPI, 52Fed. Reg. 27641 (July 22, 1987). Basin F also has been proposed for listing onthe NPI, 52 Fed. Reg. 27646 (July 22, 1987). 5.15 In January 1988, the Army commenced work,pursuant to CERCLA, on its Basin FIRA. Since that time, response activity bythe Army orShell hasbeen commenced in the following IRAs: Fugitive Dust, Asbestos Removal, Closure of Abandoned Wells, North Boundary System--Trenching Improvements, Hydrazine Facility, Building 1727 Sump, Basin F Groundwater, Basin ANeck Groundwater and North Boundary System--System Improvements. 5.16 In February 1988, the United States lodged aproposed consent decree in United States v. Shell Oil Co. and commenced apublic comment period on the proposed decree. 5.17 In March 1988, the Techr&al Program Plan forcleanup ofthe Arsenal, pursuant to CERCLA, was adopted by the Organizations. Through.the adoption ofthe Technical Program Plan,the Organizations: (a) Set goals for the issuance ofthe Army's preferred remedial action for the Off-Post Operable Unit and On-Post Operable Unit; (b) Identified the Products or Subproducts toproceed without substantial modification, those that are sufficiently completed as ofthis date, and those that require such substantial modification as to be designated New Products or Subproducts. (c) Identified any new Products orSubproducts to be added to the RI/FS for the On-Post and Off-Post Operable Units; (d) Identified any new Products or Subproducts that require ARAR determinations; (e) Identified Other Deliverables to the extent known; (f) Established Deadlines forthe completion ofIRA Decision Documents;

- 10-(g) Identified RI/FS Deadlines; (h) Identified Schedules; and (i) Identified and resolved any previously identified ornew issues which solely relate to the general conduct ofthe RI/FS. 5.18 -OnJune 7, 1988, the United States and Shell moved forentry ofa modified consent decree in United States v. Shell Oil Co. To date, the Court has not acted on that motion. 5.19 In November 1988, the Army announced that the Arsenal no longerwas an active military installation and that the sole mission ofthe Army atthe Arsenal is the cleanup ofthe Site pursuant to CERCLA. 5.20 In the absence the ofentry ofthe consent decree, the Army, EPA, DOI, ATSDR and Shell executed thisAgreement in order topreserve the utility ofthe work plans and schedules already adopted for the investigation and remediation ofthe contamination at the Arsenal, and to preserve the related arrangements for the recovery ofResponse Costs and Natural Resource Damages. VI. CONCLUSIONS OF LAW 6.1 For purposes ofthisAgreement, the following constitute the conclusions of lawupon which thisAgreement isbased. None ofthe following conclusions shall be considered admissions nor are they binding on any Organization other than forthe purposes ofthis Agreement. 6.2 Based on thepreceding Statement ofFacts, the Signatories make the following conclusions oflaw for purposes ofthisAgreement: (a) TheArmy is a "person"within the meaning ofCERCLA Section 101(21), 42 U.S.C. § 9601(21); (b) The Army is the "owneror operator" ofthe Arsenal forpurposes of CERCLA Section 101(20), 42 U.S.C. §9601(20); (c) Shell is a "person"within the meaning ofCERCLA Section 101(21), 42 U.S.C. § 9601(21); (d) TheArsenal constitutes a "facility'within the meaning ofCERCLA Section 101(9), 42 U.S.C. 9601(9);(e) From 1944 to the present, "hazardous substances," asdefined in Section 101(14) ofCERCLA, 42 U.S.C. §9601(14), were deposited, stored, disposed of, placed, located or released at the Site; (f) There has been a "release"and there continues to be or threatens tobe a "release"ofhazardous substances into the envirorument, within the meaning of CERCLA Sections 101(22), 104 and 107, 42U.S.C. 9601(22), 9604 and 9607, at the Site-, (g) The Army is the operator ofthe Arsenal facility from which there was a release or a threatened release which caused the incurrence ofcosts for removal orremedial action costs for any health assessment orhealth effects study and damages for loss ofnatural resources, within the meaning ofCERCLA Section 107(a)(1), 42 U.S.C. §9607(a)(1); (h) Shell is aperson who by contract, agreement or otherwise arranged for disposal ortreatment, or arranged with atransporter fortransport for disposal or treatment, ofhazardous substances owned orpossessed by Shell at the Arsenal facility from which there was a release or a threatened release which caused the incurrence of costs forremoval orremedial action, costs for any health assessment or health effects study anddamages for loss ofnatural resources, within the meaning ofCERCLA Section 107(a)(3), 42 U.S.C. § 9607(a)(3); (i) Ile Arsenal is a "federal facilitywithin the meaning ofCERCLA Section 120, 42U.S.C. §9620; 0) The Arsenal is afacility which is substantially on the NPILwith the balance proposed forlisting onthe NPL; (k) The Site is subject to the cleanup standards in Section 121 of CERCLA, 42 U.S.C. §9621 and the provisions ofthe NCP.

VIL DETERMINAIIONS 7.1 Forpurposes ofthis Agreement, the Mowing constitute the determinations uponwhich this Agreement isbased. None ofthe following determinations shallbe considered admissions nor are theybinding onany Organization other than forthe purposes ofthis Agreement. 7.2 Based on the preceding statement offacts andconclusions oflaw, the United States has determined and Shell does not contest forpurposes ofthisAgreement that: (a) Tle Site is subject to the requirements ofCERCLA

12-(b) The Army is a responsible party with respect to at least one release at the Site, and Shell is a responsible party with respect to at one release at the Site. (c) The actions to be taken pursuant to this Agreement are reasonable and necessary to protect the public health and the environment. (d) It is appropriate and desirable forEPA, DOI andATSDR to enter into thisAgreement with theArmy and Shell to establish theprocess for the remediation ofhazardous substances at the Site and the performance ofany related health assessment or health effects study. (e) It is appropriate and desirable forDOI toenter into thisAgreement with the Army and Shell for the performance ofa Natural Resource Damage Assessment for the Site.

VIII. ROLE OFDOI 8.1 DOI shall continue to advise and assistthe Lead Agency and Lead Party with respect to Products, Subproducts or Other Deliverables relating to the biotaportion ofthe RI/FS and the IRAs for the On-Post and Off-Post Operable Units. DOI shall alsoprovide similar advice and assistance to the Lead Agency or Lead Party forother Operable Units. 8.2 DOI shall receive from the Lead Agency or Lead Party: (a) Timely advance notice ofeach meeting concerning biota Products, Subproducts or Other Deliverables and IRAs; (b) A copy ofeach document transmitted bythe Lead Agency orLead Party to the Organizations concerning biota Products, Subproducts orOther Deliverables and IRAs; (c) An opportunity toparticipate in each meeting concerningbiota Products, Subproducts or Other Deliverables and IRAs; and (d) An opportunity tocomment inwriting on anybiota portion ofan IRA document or adraft Technical Plan, Product orSubproduct report, Other Deliverable or ROD, and to review such comments submitted bythe Organizations; (e) Timely notice ofall proposals oractions involving natural resources under DOITrusteeship.

13 -

### 8.3 DOI shall provide copies ofitswritten comments concerning the biota portion ofthe RI/FS for each Operable Unit to the Organizations. 8.4 In the event ofa dispute concerning the biota portion ofan IRA or RI/FS, arepresentative ofDOI may attend and participate (but shall not have a vote) in any relevant meeting ofthe RNIACommittee orthe RMA Council. A dispute concerning any ofthese matters maybe raised to Dispute Resolution by any Organization orDOI. IfDOI invokes Dispute Resolution, DOI shall make atimely submission inwriting ofits views on the matter in dispute tothe RMA Council, SAPC or FRC. Arepresentative ofDOI may attend and participate (but shall not have a vote) in any Dispute Resolution meeting ofSAPC or FRC. 8.5 Paragraphs 8.1-8.4.shall not control DOI's participation in a Natural Resource Damage Assessment for the Site. DOI's participation in the Natural Resource Damage Assessment for the Site shall be governed by Section XLIL IX ROLE OF ATSDR 9.1 When appropriate, ATSDR shall advise and assist the Lead Agency for an Operable Unit in the development ofEA-related Products, Subproducts,and Other Deliverables and particularly in connection with the exposure assessment, toxicity assessment and risk characterization portion ofthe EAand the IRAs. 9.2 ATSDR shall receive from the Lead Agency or Lead Party: (a) Timely advance notice ofeach meeting concerning an EA or IRA; (b) A copy ofeach document transmitted bytheLead Agency or Lead Party to the Organizations concerning anEA or IRA; (c) An opportunity to participate in each EA or IRA meeting; and (d) An opportunity to comment in writing on an IRA or any EA portion ofa draft Technical Plan,Product or Subproduct report,Other Deliverable or ROD, and to review such comments submitted by the Organizations. 9.3 ASTIM shall provide copies ofitswritten comments concerning an IRA orthe EAfor each Operable Unit tothe Organizations. 9.4 Inthe event ofa dispute concerning anyrelevant aspect ofan IRA orEA, ATSDR shallbe afforded an opportunity, at its election, to submitin writing its views on the matter in dispute to the RMA Committee or the RMA Council. ATSDR may, at its option, attend and participate in anyrelevant meeting oftheRMA Committee or the RMA Council. Ifadispute concerning any ofthese matters israisedpursuant to Dispute Resolution, ATSDR shall be afforded an opportunity to update its earlier

14 -statement of itsviews through an additional written submission to the RMA Council, SAPC or FRC. 9.5 Paragraphs 9.1-9.4 shall not control ATSDR's Health Assessment orany Health Effects Study. ATSDR's Health Assessment or HealthX-ffects Study shall be governed by Section XLL X. ROLE OFTHE STATE 10.1 Prior to the effective date ofthis Agreement, the State's participation in the RI/FS and the IRAs was subject to the February 1,1988, and June 7, 1988, proposed consent decrees (and the related exhibits). Onthe effective date ofthis Agreement, the State's participation is expected tobe consistent with thisAgreement. Regardless ofwhether the State becomes a Signatory, the State shall have the rightsof an Organization under this Agreement subject to the following conditions: (a) The State may attend meetings ofthe RMA Council, the SAPC and the FRC only after ithas agreed inwriting to be bound by the provisions of paragraph 30.10 and to treat as highly confidential, and not to publish, divulge, disclose or make known in any manner orto any extent not authorized orrequired by law, any Confidential Information received by, or made available toit in connection with any activities performed pursuant to thisAgreement; and (b) The State may invoke Dispute Resolution only after it has agreed to be bound by the Dispute Resolution process, as evidenced by its execution ofthe agreement attached hereto as Exhibit C. The form attached as Exhibit C shall be replaced by an executed copy ofthat agreement, once it has been executed by all parties thereto. 10.2 This Agreement shall become binding and effective upon the State at the time itbecomes a Signatory. XI. LEAD AGENCIES 11.1 For purposes ofthis Agreement, the Armyis theLead Agency for the OnPost Operable Unit and the Off-Post Operable Unit. 11.2 For purposes ofthisAgreement, the Army or EPA maybe the Lead Agency forany other designated Operable Unit asprovided inExecutive Order 1.2580 or any amendments or modifications thereof. XII. OPERABLE UNM 12.1 it is the present intent ofthe Signatories thatthere shall be:

15(a) The On-Post Operable Unit; and (b) The Off-Post Operable Unit. Nothing in this Agreement shall preclude the designation ofone or more additional Operable Units upon unanimous agreement ofthe Organizations. At the request ofany Organization, the question ofwhether a new Operable Unitwill be designated shall be subject to Dispute Resolution. In Dispute Resolution on theissue ofwhether the designation ofanew Operable Unit is appropriate, such designation shall not be considered appropriate ifit will prevent or substantially delay the design or implementation ofan IRA, the On-post Operable Unit or the Off-Post Operable Unit. 12.2 The selection ofthe Final Response Action foreach Operable Unit shall be: (a) Preceded by RI/FS; (b) Set forth in a ROD, which may include more than one technology as part ofthe selected remedy; (c) In accordance with CERCLA and in a manner not inconsistent with the NCP and any pertinent guidance issued by ATSDR. EPA, DOD or DOI which is not inconsistent with CERCLA and the NCP; (d) Supported by the relevant Administrative Record; ari'd (e) Consistent withthe terms ofthe Settlement Agreement or any Consent Decree in which thisdocument may be incorporated. XIII. ROLE OF COUNSEL 13.1 References inthis Agreement toactions being taken in consultation with counsel, or to counsel attending certain meetings, shall not be deemed topreclude consultation with counsel, or counsel attendance at meetings, with respect to any other action taken pursuant to this Agreement.

XIV. DEFR4MONS 14.1 Asused in thisAgreement, certain terms shall have the meanings specified inparagraph 14.4. To the extent that these definitions are inconsistent withthe definitions which appear in any Consent Decree incorporating this Agreement, the definitions in paragraph 14.4 shall control forpurposes ofthis Agreement unless expressly stated otherwise in such Consent Decree.

16-14.2 The meaning ofany term used in this Agreement which is notdefined in paragraph 14.4, but which is defined in Section 101 ofCERCLA, 42U.S.C. § 9601, shall be as defined in CERCLA.

143 The term "day"as used in thisAgreement shall mean "calendarday." 14.4 The following terms used in this Agreement are defined as follows: (1) "Administrative Record" means the documents designated pursuant to paragraph _31.1 or31.2. (2) "Agreement"or "Federal Facility Agreement" means this document, the executed "Federal Facility Agreement for the Rocky Mountain Arsenal," effective February 17, 1989, including all exhibits thereto (and any amendments or modifications thereofor supplements thereto.) (3) "ARAR"means a standard, requiremeni, criteriohbr li'mitation as defined in CERCLA Section 121(d)(2), 42 U.S.C. § 9621(d)(2). (4) "Army"means the United States Department ofthe Army and any successors orassigns, and any agency, command, office orother subdivision thereof; and includes the officers, members, employees and agents ofthe Army when acting within the scope oftheir authority. (5) "Army-Only Response Costs"means a1l Response Costs for the Response Actions listed as Army-Only Response Actions onExhibit Cto the Settlement Agreement. (6) "Arsenal"means all United States property known as the Rocky Mountain Arsenal and which is described more particularly inExhibit A tothis Agreement. (7) "ATSDR"means the United States Agency forToxic Substances and Disease Registry and any successors or assigns, and any Region,Office or subdivision thereof; and includes the officers, employees and agents ofATSDR when acting within the scope oftheir authority. (8) "BasinF MOU"means the "Memorandum ofUnderstanding between the Department ofthe Army and Shell Oil Companywith respect to the Basin F Interim Action," executed by Shell and theArmy on September 26 and 27, 1986, respectively (and any amendments or modifications thereofor supplements thereto).
(9) "CAR"means a contamination assessment report which ispart ofa RI/FS.

17 -(10) TERCLA"means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986. (11) "Conceptual Design Document" means a document prepared after completion ofapproximately 30 percent ofthe design and engineering work for a discrete portion ofa Final or Supplemental Response Action and which sets out the plans for completion ofsuch design and engineering work,with reference to appropriate drawings, specifications, data and documentation. (12) "Confidential Information"means all records, reports, or information designated in accordance with Section 104(e)(7)(C) ofCERCLA, 42 U.S.C. S9604(e)(7)(C), or marked or stamped by an Organization or acontractor with the legend "Confidential Information" that concerns orrelates to the trade secrets, processes, operations, style ofwork, or apparatus; or to the confidential statistical data, amount or source ofany income, profits, losses, or expenditures ofany person, firm, partnership, corporation, or association; and all other records, reports, orinformation that an Organization or a contractor is required by lawor contract tomaintain confidential. (13) "Consent Decree" means any agreement approved and entered by the Court which wholly orpartially resolves litigation concerning the Arsenal and which incorporates thisAgreement and specifically makes thisAgreement apart thereof. (14) "Coordinator"means the Army employee designated to serve onthe RMA Committee pursuant to paragraph 15.1. (15) "Court"means the United States District Court for the District of Colorado. (16) "Custodian"means the person designated bythe Army pursuant to paragraph 31.4. (17) "Deadlines"means IRA Deadlines, RI/FS Deadlines, Supplemental Response Action Deadlines, Design Deadlines and Implementation Deadlines. (18) "DesignDeadline" means any timetable ordeadline for completion ofa scope ofwork or afinal design document for anOperable Unit, as set forth in the ROD for such Operable Unit. (19) "DesignScope ofWork"means a document that outlines the work plan for, and major elements of,the design and engineering work to be conducted for a discrete portion ofaFinal or a Supplemental Response Action. Such a document may provide the basis for,and be incorporated in, acontractual agreement between adesign contractor and the Lead Agency or Lead Party responsible for such work.

18(20) "Dispute Resolution" means the process for resolving disputes that is set forth in Section XXX of this Agreement. ('21 ) "DOD"means the United States Department ofDefense and any successors or assigns, and any office or subdivision thereof; and includes the officers, employees and agents ofDOD when acting within the scope oftheir authority. .

. (22) "DOI"means the United States Department ofthe Interior and any successors or assigns, and any Region, office or subdivision thereof (including but not limited to the United States Fish and Wildlife Service); and includes the officers, employees and agents ofDOI when acting within the scope oftheir authority.
(23) "DOITrusteeship" means natural resources under the management and protection ofDOI, including, but not limited to, species designated as threatened or endangered pursuant to the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., and migratory birds. (24) "EA"means the endangerment assessment portion ofa RI/FS and includes: (i) Contaminant identification (i.e., site characterization and selection oftarget contaminants and identification ofenvironmental transport and fate mechanisms) for such contaminants; (ii) Exposure assessment (i.e., identitication ofexposure pathways and extent ofexposure ofhuman and envirom-nental populations at actual or potential risk); (iii) Toxicity assessment (i.e., evaluation ofthe toxicological properties oftarget contaminants); and (iv) Risk characterization (i.e., determination ofthe likelihood and extent of any harm). (25) "Emergency Action" means an action conducted by the Army pursuant to Section XXM ofthis Agreement.

1 (26) "EPA I'means the Urdted States Environmental Protection Agency and any successors or assigns, and any Region, Office or subdivision thereof; and. includes the officers, employees and agents of EPAwhen acting within the scope of their authority.

19.(27) "EPACertification"means the certification by EPA ofcompletion of a Final Response Action or Supplemental Response Action pursuant to paragraphs 34.23-34.24. (28) "Final Design Document" means a document prepared after completion ofat least 95 percent ofthe design and engineering work for a discrete portion ofa Final or Supplemental Response Action and that includes the final drawings and specifications and the final design analysis and cost estimate for the implementation ofthat portion ofthe Remedial Action. (29) "Finalization," with respect to a ROD, means the process by which the ROD is submitted to the Court, together with a certified Administrative Record in support ofthe ROD, and all changes, if any, required as a result ofjudicial review are made. The process ofFinalization is complete when either the time forjudicial review has passed orjudicial review has been completed. (30) "Final Response Action means any remedial action for an Operable Unit as set forth in the ROD for such Operable Unit. (31) "Financial Manual" means the document developed by Shell and the Army to govern the payment, reimbursement and auditing oftheir respective response costs claims. (32) "ForceMajeure" means any event arising from causes beyond the control ofan Organization which causes a delay in or prevents the performance ofany obligation under this Agreement. "ForceMajeure" includes but is not limited to: acts of God; fire; war; insurrection; civil disturbance; explosion, unanticipated breakage or accident to machinery, equipment or lines ofpipe, .despite diligent maintenance; adverse weather conditions which could not be reasonably anticipated; unusual delay in transportation; earthquake; restraint by court order or order ofpublic authority; inability to obtain, at reasonable cost and after exercise ofreasonable diligence, any necessary authorizations, approvals, permits or licenses as aresult ofthe action or inaction ofany governmental agency or authority other than the Army; delays caused by compliance with applicable statutes or regulations governing contracting, procurement or acquisition procedures, despite the exercise ofreasonable diligence; and insufficient availability of appropriated funds, ifthe Army shall have made timely request for such funds as part of the budgetary process. "Force Majeure" also includes any strike or labor dispute, whether or not within the control ofthe Organization affected thereby, but shall not include increased costs or expenses ofResponse Actions, whether or not anticipated at the time such Response Actions were initiated. (33) TRC'means the Final Review Committee, which shall consist of the following members: the Assistant Secretary ofthe Army (Installations and Logistics)(or other official ofcomparable authority and responsibility); the Administrator

-20-ofEPA (or other official ofcomparable authority and responsibility); the Governor of Colorado; and the President ofShell. (34) "FS"means a feasibility study, as defined in the NCP, which is performed as part ofan Operable Unit. (35) "HealthAssessment" means anevaluation by ATSDR ofdata and information on the release ofhazardous substances at orfrom the Site in order to: assess any current or future impact on public health, develop health advisories orother recommendations; and identify studies ofactions needed to evaluate, and mitigate or prevent, human health effects. (36) "Health Effects Study" means research, investigation, or study performed by ATSDR to evaluate the health effects ofhazardous substances released at orfrom the Site. This terms includes, but is not limited to,epidemiological studies, exposure and disease registries, and health surveillance programs. (37) "Implementation Deadline" means any date for initiating or completing physical activity onthe Site with respect to aResponse Action addressed in a Final Decision Document. (38) "IRA"means an interim response actionwhich has been determined by the Organizations to be necessary and appropriate for the Site. (39) "IRADecision Document" means the document issued by the Army which reflects the objectives and rationale for an IRA. (40) "IRADeadline" means any date for issuance ofa draft IRA Decision Document, as reflected in the Technical Program Plan,or any timetable or deadline for completion ofan IRA, as reflected inthe appropriate IRA Decision Document or IRA Implementation Document. (41) "JARDF'means theJoint Administrative Record and Document Facility described in paragraph 31.8. (42) "JARDFC' means the Joint Administrative Record and Document Facility Comn-dttee described in paragraphs 31.5. (43) "LeadAgency"means the Federal agency that is a Signatory and has primary authority and responsibility under CERCLA, the NCP and Executive Order 12580 for coordinating an Operable Unit.

-21 -(44) "Lead Party" means the Organization that is designated with responsibility, in accordance with paragraphs 24.1, 24.3 and 24.4, to develop one or more Products, Subproducts, or Other Deliverables orperform one or more IRAs (or portions thereof). (45) "Natural Resource Damages" means the amount ofmoney to which the United States is entitled as compensation for injury to, destruction of,orioss of natural resources resulting from a release ofhazardous substances at or from the Arsenal determined in accordance with Section XLIL (46) "Natural Resource Damage Assessment" means the assessment of Natural Resource Damages pursuant to the Natural Resource Damage Assessment Plan. (47) "Natural Resource Damage Assessment Plan"means a plan for the assessment ofNatural Resource Damages developed in accordance with the requirements and procedures ofany applicable regulations promulgated by DOI pursuant to Section 301(c) ofCERCLA 42 U.S.C. §9651(c), and the requirements and procedures ofSection XLIL (48) "NCP"means the National Oil and Hazardous Substances Pollution Contingency Plan as set forth in 50 Fed. Reg. 47912 (1985), effective February 18, 1986, and all amendments thereto which are not inconsistent with CERCLA and which are effective and applicable to any activity undertaken pursuant to thisAgreement. (49) "NewProduct or Subproduct"means aProduct orSubproduct so designated in accordance with paragraphs 24.7 and 24.8. (50) "NPL:'means the National Priorities Ust,as defined by CERCLA and the NCP.(51) "Off-Post Area"means thatportion ofthe Site that is within the area bounded by 80th Avenue, the South Platte River, Second Creek and the northerly and northwesterly boundaries ofthe Arsenal, together with the surface waters ofBarr Lake and the surface waters ofthe O'Brian Canal and the Burlington Ditch from their confluence with Second Creek to Barr Lake. The Off-Post Area is the shaded area shown on Exhibit B. (52) "Off-Post Operable Unit"means the remedial action for the Site necessary to respond to hazardous substances, pollutants or contaminants within (a) the Off-Post Area, but in anyevent, only the area where hazardous substances, pollutants or contaminants from the Arsenal are found, and which is subject toremedial action by the Army as Lead Agency, in accordance with Executive Order 12580 and any amendments
or modifications thereto, and the NCP; and (b) such area immediately adjacent thereto
as is necessary forpurposes ofcarrying out all Response Actions resulting from the

-22-release or threat ofrelease ofhazardous substances, pollutants orcontaminants at or from the Arsenal. (53) "Off-Post ROD"means the ROD for the Off-Post Operable Unit. (54) "On-Going"or "On-GoingSubproduct" means a Product or Subproduct for the On-Post and Off-Post Operable Units listed in paragraphs 24.30, 24.32 and 24.34. (55) "On-Post Operable Unit"means the remedial action for the Site necessary torespond to contamination within the Arsenal. (56) "On-PostROD" means the ROD for the On-Post Operable Unit. (57) "Operable Unit"means a discrete portion ofthe remedial action for the Site, as determined pursuant to paragraph 12.1. (58) "Organization" means the Army, EPA,Shell or, subject to paragraph 10.1, the State; "Organizations"means the Army,EPA, Shell and, subject to paragraph 10.1, the State. (59) "OtherDeliverable" means any document, other than aProduct or Subproduct report, which presents the results ofany studies or reports prepared as part ofa RI/FS. Examples of"OtherDeliverables" include Phase 2 CAR Data Addenda, Modeling Reports, Shell'sBiota Report(s), Pilot TreatabUity Test Plans, Shell's Sewers Report(s), Reports conceming the presence ofBald Eagles atthe Arsenal, Boundary Systems Evaluation Report, PPLV Methodology,Toxicity Assessment, Composite Well Program Report, Shell's Hydrological and Geological Reports, the Soil Gas Study and Partition Coefficient Studies. (60) "Proposal for Other Deliverable" means a concise document that outlines the work plan for, and major elements of,an Other Deliverable notreflected in the Technical Program Plan. (61) "Product"means one ofthe primary aspects ofan Operable Unit for which a Product report isprepared. The term includes an On-Going or New Product. (62) "Product Manager" means the employee ofthe Lead Agency or Lead Partywhois designated in accordance with paragraph 24.5, to have day-to-day responsibility for the development ofaProduct and the development ofany related Subproduct orTechnical Plan. (63) "QA!d/QC'd"means quality assured/quality controlled.

-23 -(64) "Report ofAssessment" means a report ofthe assessment ofNatural Resource Damages, consisting ofthe preassessment screen determination, the Natural Resource Damage Assessment Plan, and all documentation supporting the determination required in the injury determination phase, the qualification phase and the damage determination phase, all in accordance with the requirements and procedures ofany applicable regulations promulgated by DOI pursuant to Section 301(c) ofCERCLA 42 U.S.C. §9651(c), and the requirements and procedures ofSection YCLIL (65) "Representative" or "Committee Representative" means a representative ofan Organization on the RMA Committee. (66) "Response" or "Response Action" has the same meaning as "Respond"or "Response"as defined by Section 101(25) ofCERC" 42 U.S.C. 9601(25). (67) "Response Action Structure" means any building, equipment, or improvement constructed or placed at the Site in connection with a Response Action. (68) "RI"means a remedial investigation, as defined in the NCP,which is performed for an Operable Unit. (69) "RI/FS"means the remedial investigation/ feasibility study, as defined in the NCP, which is performed for an Operable Unit. (70) "RI/FSDeadlines" means the dateswhich are identified pursuant to paragraphs 2.0.2(g), 26.6 and 26.7 and are appended hereto, and are enforceable pursuant toparagraphs 28.1-28.5. (71) "RI/FS Report"means a document prepared pursuant to paragraph 24.62. (72) "RMA Committee" or "Committee"means the entity established pursuant toparagraphs 15.1 and 15.2. (73) "RNIA Council"or "Council"means the management body established pursuant to paragraphs 16.1-16.3. (74) "ROD"means the Record ofDecision for an Operable Unit. The term does not include an IRA Decision Document. (75) "SAPC'means the Steering and Policy Committee which shall consist ofthe following members: the Army Deputy forEnvirortment, Safety and Occupational Health (or other official ofcomparable authority and responsibility); the Regional Administrator ofEPA, Region 8 (or other official ofcomparable authority and

-24-responsibility); the Director ofthe Colorado Department ofHealth (or other official of comparable authority and responsibility); and a Vice President ofShell. (76) "SAR"means a StudyArea Report, i.e., areport which summarizes the data in the CARs on a geographic or contamination flow basis. (77) "Schedule"means any time limit, other than a RI/FS Deadline, established pursuant tothis Agreement or the Technical Program Plan which governs the conduct ofportions ofa RI/FS. (78). "SettlementAgreement" means the executed "Settlement Agreement between the United States and Shell Oil Company concerning the Rocky Mountain Arsenal,"effective February 17, 1989, including all exhibits thereto (and any amendments or modifications thereofand supplements thereto.) (79) "Shell"means Shell Oil.Company and any successors or assigns, and any office or subdivision thereof, and includes the subsidiaries ofShell and the officers, employees and agents ofShell when actingwithin the scope oftheir authority. (80) "Signatory"means any Organization that executes this Agreement. (81) "Site" hasthe meaning set forth inparagraph 4.1. (82) "State"means the government ofColorado and any successors or assigns, and any department, division, agency, office orother subdivision thereof,and includes the officers, employees and agents ofthe State when acting within the scope of their authority. (83) "Subproduct"means a secondary aspect ofan Operable Unit for which a Subproduct report is prepared and which isused in preparation ofa Product. The term includes On-Going and New Subproducts. (84) "Supplemental Response Action" means a Response Action for the Site selected after finalization ofthe On-Post ROD. The term does not include either
an Emergency Action, or a modification ofa ROD in accordance with paragraph 25.16. (85) "Supplemental Response Action Plan"means the plan that shall govern development ofa RJ/FSand ROD for a Supplemental Response Action, as provided in Section XXXffl- (86) "Supplemental Response Action Deadline"means anytimetable or deadline for completion ofa RI/FS for a Supplemental Response Action orfor selection ofa ROD for a Supplemental Response Action, asdeveloped pursuant to paragraph 33.4.

-25 -(87) "Technical Plan"means areasonably detailed plan for the development ofa Product or SubprodUCt. (88) "Technical Program Plan"or "Plan"means the document that sets forth RI/FS Deadlines, deadlines for completion ofIRA Decision Documents, Schedules, and other provisions prepared and adopted in accordance with Section,XX (89) "TRC"means the Technical Review Committee described in paragraphs 19.1-19.6. (90) "United States"means the Federal government, any department, agency, Region, office or subdivision thereof (including but not lirruted to the Army, ATSDR, DOD, EPA and DOI); and includes the officers, employees and agents ofthe United States when acting within the scope of1heir authority. XV. RNIA COMMITTEE 15.t Upon completion ofthe Technical Program Plan, theArmy designated an employee to serve onthe RMA Committee as the Coordinator for the On-Post and OffPost Operable Units. The Coordinator shall be responsible on a daily basis forassuring the Army's implementation ofthe RI/FS,the IRAs, Final Response Actions,Emergency Actions and Supplemental Response Actions for the On-Post and Off-Post Operable Units in accordance with the terms ofthisAgreement, theTechnical Program Plan, and the Settlement Agreement. 15.2 Upon the completion ofthe Technical Program Plan,the other Organizations each designated an employee to serve on theRMA Committee as its Committee Representative. Each Representative shallbe responsible on a daily basis forensuring his or her entity's fulfillment ofits responsibilities regarding a RI/FS,the IRAs, Final Response Actions, Supplemental Response Actions and Emergency Actions in accordance with the terms ofthisAgreement, the Technical Program Plan and the Settlement Agreement. The RMA Committee shall consist ofthe Coordinator and the Committee Representatives. A representative ofDOI may attend and participate in any meeting ofthe Committee (but shall not vote). 15.3 The Organizations shall transmit all written communications between each other after the effective date ofthis Agreement with respect to aRI/FS, the IRAs, Final Response Actions, Supplemental Response Actions and Emergency.Actions orrelated matters concerning the Arsenal, through the Coordinator and Committee Representatives, except forpolicy matters raised directly with SAPC, communications between attorneys ordocuments excluded byparagraph 21.1(a).
15.4 The RMA Committee shall meet informally approximately once each month. Although the Lead Agency and theLead Party have ultimate responsibility for meeting their respective Deadlines, the RMA Committee shall endeavor to assist inthis

-26-effort by scheduling meetings to address Products, Subproducts or Other Deliverables, setting and reviewing completion dates for Technical Plans, Other Deliverables, and reports for Products and Subproducts, overseeing the performance ofall environmental monitoring at the Site overseeing the performance ofthe RI/FS, the IRAs, Final Response Actions, Supplemental Response Actions or other Response Actions, reviewing the progress ofthe Technical Program Plan and the status ofTechnical Plans, Products, Subproducts, and Other Deliverables, attempting to resolve disputes . informally, making necessary and appropriate adjustments to Schedules, advising the RMA Council whenever aDeadline cannot be attained and recommending, where warranted, that a Deadline be extended in accordance with paragraphs 26.8-26.18.- 15.5 The RMA Committee may create such subcommittees as it approves by majority vote ofthe Organizations. 15.6 Special meetings ofthe RMA Com-mittee shall be held upon majority agreement ofthe Organizations. XVI. RMA COUNCI 16.1 Within seven days ofthe completion ofthe Technical Program Plan, the Organizations each designated an employee to serve as a member ofthe RMA Council for the On-Post and Off-Post Operable Units. 16.2 The designee ofthe Army shall serve as thechairman ofthe RMA Council for the On-Post and Off-Post Operable Units. 16.3 The Coordinator and Committee Representatives may alsoserve as members or alternate members ofthe RMA Council and may attend and participate in any meeting ofthe RNLA Council. Counsel for the Organizations may, subject to paragraph 13.1, also attend and participate in RNIA Council meetings. A representative ofDOI may attend and participate in meetings ofthe Council (but shall notvote).
16.4 'Me chairman shall schedule regular meetings ofthe RMA Council approximately every three months, shall transmit aproposed agenda at least 20 days in advdnce ofsuch meeting and shall transmit a final agenda at least 10 days in advance of such meeting which shall incorporate any additional matterthat a member requests be included. Regular meetings shall be for the purpose ofreviewing and commenting on the progress under the Technical Program Plan and on the status ofall Technical Plans, Product and Subproduct reports, and Other Deliverables, and overseeing the performance ofthe RI/FS,the IRAs, Final Response Actions, Supplemental Response Actions orother Response Actions. The RMA Council shall attempt to resolve differences between the Organizations and shall address any other matter which a member timely seeks to have placed onthe agenda.

-27-16.5 Special meetings ofthe RMA Council shall be held at the request ofany Organization. As much notice for special meetings as is feasible under the circumstances shall be provided by the chairman. XVIL STEERING AND POLICY COMMITTEE ("SAPC') 17.1 On the completion ofthe Technical Program Plan, the Organizations each designated an employee to serve as a member ofthe SAPC for the On-Post and OffPost Operable Units. Ile SAPC shall consist ofthe following members: for the United States, the Army Deputy for Environment, Safety and Occupational Health (or other official ofcomparable authority and responsibility) and the Regional Administrator of EPA Region 8 (or other official ofcomparable authority and responsibility); for the State, the Director ofthe Colorado Department ofHealth (or other official of comparable authority and responsibility); and for Shell, aVice President ofShell. A representative ofDOI may attend and participate (but shall not vote).
17.2 The function ofthe SAPC shall be (a) to decide significant policy issues as they relate to assessment, selection, design and implementation ofResponse Actions at or associated with the Site and (b) toresolve disputes relating to assessment, selection, design, and implementation ofResponse Actions at or associated with the Sitewhen such disputes have not beenresolved at the RMA Council level and which have been elevated to the SAPC for resolution. 17.3 Unless otherwise agreed by all members ofthe SAPC,the SAPC shall meet approximately quarterly at a time and location tobe determined bythe SAPC. At the quarterly meetings, the SAPC shall address any policy issues or other matters placed
onthe agenda. In addition to its regular quarterly meetings, the SAPC may hold special meetings as necessary to resolve disputes or address policy issues or other matters. Ifa special meeting ofthe SAPC occurs near the time ofa regularly scheduled quarterly meeting, the SAPC may agree to cancel orpostpone the quarterly meeting, as appropriate. 17.4 The EPA member ofthe SAPC, orhis or herdesignated representative, shall chair all meetings ofthe SAPC. EPA shall prepare an agenda pursuant to the recommendation ofthe RMA Council and distribute the agenda prior to each SAPC meeting. EPA shall include on the agenda any policy issues or other matters raised by the other SAPC members. 17.5 During SAPC meetings, Shell, the State and the United States may each be accompanied by legal and technical advisors. A SAPC member who cannot attend a meeting may designate an alternate representative, who shallbe fully authorized to make conuratments and take positions onbehalfofthe Organization he or she represents.

-28-XVIII. FINAL REVIEW COM?Vl1TTEE_("FRC'.) 18.1 On the completion ofthe Technical Program Plan, the Organizations each designated an employee to serve as a member ofthe FRC for the On-Post and Off-Post Operable Units. The FRC shall consist ofthe following members: for the United States, the Assistant Secretary ofthe Army (Installations and Logistics) (or other official ofcomparable authority and responsibility) and the Administrator ofEPA (orother official ofcomparable authority and responsibility) who shall chair meetings ofthe FRC; for the State, the Governor ofColorado; and for Shell, thePresident ofShell. A representative ofDOI may attend and participate in meetings ofthe FRC (but shall not vote). 1 18.21 FRCmeetings shall occur only as needed taresolve disputes or policy issues. The Organizations may each bring leg4l and technical advisors oftheirchoosing to FRC meetings unless otherwise agreed by Shell, the State and the United States. A FRC member who cannot attend a meeting may designate analternate representative, who shall be fully authorized to make commitments and take positions onbehalfofthe Organization he or she represents.

XIX. TECHNICAL REVIEW COMMITTEE ('-MC-) 19.1 Within 21 days ofthe completion oftheTechnical Program Plan,the Army, in consultation with the other Organizations, designated, pursuant to 10 U.S.C. §2705(c) and paragraph 19.6 thefollowing to serve as members oftheTRC: (a) The chairman ofthe RMA Council, who shall serve as the Army's representative; (b) A representative ofEPA (as designated byEPA); (c) A representative ofthe State (as designated by the State); (d) A representative ofAdams County; (e) A representative ofthe City and CountyofDenver; (f) A representative ofCommerce City; (g) A representative ofthe South Adams County Water and Sani- tation District; (h) A representative oftheTri-County Health Authority; and

-29-(i) Three public representatives who shall represent a cross section of civic, educational and other such groups from the local community. 19.2 The chairman ofthe RMA Council shall serve as the chairman ofallTRC meetings. A representative ofeach ofColorado's United States Senators and Members ofthe United States House ofRepresentatives, Shell, and counsel for the United States, Army, EPA, DOI, Shell and the State, may each attend and participate inany TRC meeting as ex-officio members ofthe TRC. 19.3 The purpose ofthe TRC is to afford aforum forcooperation between the Army and concerned local officials and citizens and provide a meaningful opportunity for the members ofTRC tobecome informed and to express their opinion about significant aspects ofthe RI/FS. 19.4 'Me chairman shall schedule regular meetings ofthe TRCapproximately every three months. Regular meetings ofthe TRC shall be for the purpose ofreviewing progress under the RI/FS Plan and discussing other matters ofinterest to theTRC.
19.5 Special meetings ofthe TRC shall be held atthe request ofthe Army or EPA. 19.6 To avoid unnecessary delay and administrative procedures, the Organizations intend that the appointment ofthe TRC and the performance ofits activities need not complywith the Federal Advisory Committee Act, 5 U.S.C. App., 86 Stat. 770, and the Federal Advisory Committee Management Regulations,41 C.F.R. 101-6.1001--101-6.1035. 19.7 'Me Custodian shall distribute tothe TRCevery three months information concerning the supplementation ofthe Administrative Records which occurred during that period. XX. ADOPTION OFTECHNICAL PROGRAM PLAN (i) Purpose-ofTechnical Program Plan 20.1 The Organizations have developed aTechnical Program Plan togovern the completion ofthe RI/FS for the On-Post and Off-Post Operable Units.
20.2 The Technical Program Plan: (a) Has goals forthe issuance ofthe Army's preferred remedial action for the Off-Post Operable Unit and for the issuance ofthe Army's preferred remedial action forthe On-Post Operable Unit;

30-(b) Identifies, without specifies, the Products and Subproducts listed in paragraphs 24.30, 24.32 and 24.34 which (1) shall proceed without substantial modification, (2) are sufficiently completed as ofthe date ofthe Technical Program Plan or (3) require such substantial modification as tobe designated New Products or Subproducts in accordance with paragraphs 24.7-24.8; (c) Identifies any New Products or Subproducts not identified in paragraphs 24.30, 24.32 and 24.34 which shall be added to the RI/FS for the On-Post and Off-Post Operable Unit; (d) Identifies any New Products or Subproducts that require ARAR determinations; (e) Identifies Other Deliverables, to the extent they are known; (f) Establishes Deadlines for the completion ofIRA Decision Documents; (g) Identifies RI/FS Deadlines for the milestones listed in paragraph 26.7; (h) Identifies Schedules; and (i) Avoids addressing specific issueswhich canbe better resolved inthe context ofthe specific Technical Plans, Products, Subproducts, Other Deliverables, RI/FS Reports andRODs. 20.3 The Technical Program Plan also addresses and resolves previously identified and new issues which solely relate to the general conduct ofaR1./FS that were clearly raised by an Organization during the course ofdrafting or commenting on the draft Technical Program Plan. (ii) Development ofDrafts ofTechnical Program Plan
20.4 Representatives ofthe Organizations and their respective counsel conferred with each others' counsel in an effort to develop a draft Technical Program Plan by consensus to the maximum extent practicable. 20.5 After conferring with the Organizations, the Armyprepared a draft Technical Program Plan. 20.6 On or about December 4, 1987, the Army transmitted the draft Technical Program Plan to the other Organizations for review andcomment.

-31 -20.7 Within 50 days ofreceiving the draft Technical Program Plan, the other Organizations transn-Litted their written comments onthe draft to the Army, and Shell identified the Products, Subproducts and Other Deliverables for which Shell proposed to be Lead Parry. 20.8 Within 30 days ofthe close ofthe 50-day period specified in paragraph *20.7,the Army transmitted to SAPC (and tothe other Organýizations): (a) A draft final Technical Program Plan; (b) Copies ofthe written comments ofthe other Organizations; (c) The Army's response to timelywritten comments received from the other Organizations; and (d) The Army's response to Shell's proposals to be Lead Party. (iii) Approval ofTechnical Prop-ram Plan 20.9 Within approximately 15 days after receipt ofthe draft final Technical Program Plan with the comments and responses, SAPC met to decide the unresolved issues, toreconcile any inconsistencies and todirect the finalization ofthe Technical Program Plan in accordance with its decisions. During the week prior to the SAPC meeting, the Organizations met and attempted to reconcile as many differences as possible concerning the Technical Program Plan. All unresolved issueswere placed on the agenda for the SAPC meeting. Inreviewing the'draft final Technical Program Plan and in deciding the unresolved issues, SAPC considered theimpact ofeach ofits decisions on the goals set forth in paragraph 20.2(a). 20.10 To the extent that an Organization did not object to the draft final Technical Program Plan during the course ofthe SAPC review, it is deemed to have approved the Technical Program Plan. 20.11 Ifwithin 20 days ofits initial meeting SAPC could not have decided a dispute concerning the Technical Program Plan, any oftheOrganizations could have elevated the issue to the FRC bynotifying the other Organizations in writing ofsuch intent within 5 days ofthe close ofSAPC's 20-day review period. FRCwould have had 20 days thereafter to resolve the dispute. The decision ofFRC with respect to such dispute would have been reflected in the final Technical Program Plan.
20.12 Ile Army had 15 days to revise the draft final Technical Program Planto make it consistent with the decision ofSAPC (or FRC,ifFRC resolved a dispute concerning the Plan). After revising the Technical Program Plan,the Army transmitted
a copy ofthe Technical Program Plan to SAPC, which approved the Technical Program

-32-Plan upon its detern-lination that the Technical Program Plan is consistent withthe decision ofSAPC (or FRC, ifFRC had resolved a dispute concerning the Plan). 20.13 Following SAPC or FRC approval ofthe Technical Program Plan, copies ofthe Plan were issued by the Army to the other Organizations. The RI/FS Deadlines established by and appended to the Plan thereafter shall apply to the RI/FS for the OnPost and Off-Post Operable Units. (iv) SubseQ.uent Extensions ofDeadlines 20.14 Ifsubsequent tothe approval ofthe Technical Program Plan, an Organization determines that an extension ofan RI/FS Deadline is warranted for any reason, it may request such an extension in accordance withparagraphs 26.17-26.18. All extensions of RI/FS Deadlines shall be appended to the Plan and shall thereafter apply to the appropriate RI/FS. 20.15 The Technical Program Plan shall be amended to include a current list of all use restrictions applicable for the Arsenal. Ile Army shall submit such restrictions, and any revisions thereof,to the SAPC forreview and approval. (v) Amendment ofthe Technical Program Plan 20.16 Within 90days ofthe adoption ofthis Agreement, an Organization may seek to amend theTechnical Program Plan as necessary toincorporate changes or requirements that result from the adoption ofthis Agreement orthe Settlement Agreement. An Organization may seek such an amendment by submitting a-concise written request to the RMA Council. 20.17 In the event that unanimous agreement is not reached by the RMA Council on the need for an amendment ofthe Plan, pursuant to paragraph 20.16, any Organization may invoke Dispute Resolution to determine ifsuch amendment shall
occur. 20.18 The proponent ofa proposed amendment ofthe Plan shall prepare the text ofthe proposed amendment.

XXI. EXCHAN E AND PRESERVATION OF INFORMAMON
21.1 Prior to the effective date ofthisAgreement, Exhibit Eto the February 1, 1988, and June 7, 1988, proposed consent decrees governed the exchange and preservation ofinformation by the Signatories. On the effective date ofthis Agreement, this Section shallcontrol the exchange and preservation ofinformation by the Signatories. On thisAgreement becoming binding ona Signatory, the Signatory shall:

-33 -(a) Provide on request, subject to the provisions of subparagraph 21.1(e)(1) and (2), the other Signatories access, for purposes ofreview and copying, and without the need to make any formal request under the Freedom of In6mation Act or similar state law, to all technical information or sampling ortest data previously obtained orgenerated by that Signatory orits agents relating to the RI/FS or contamination at the Site, except for: (i) Privileged attorney-client communications and attorney work product-, (ii) Communications between two or more ofthe Signatories, which retain their privileged orwork product status because oftheir occurrence in the context ofthejointor cooperative conduct oflitigation; (iii) Communications which are subject to the deliberative process privilege among orbetween personnel ofthe Army,EPA or the State and their respective managements, and communications ofa similar nature between Shell personnel and Shell management; (iv) Post-contract award communications between the Army, EPA or Shell and their respective contractors concerning theperformance ofwork by such contractors (but not contract change orders, modifications, amendments orsimilar communications); however, factual or technical information which is found only in such communications shall be promptly provided to SAPC, at SAPC's request, by the appropriate Signatory where these mayprove relevant to a matter submitted to Dispute Resolution; (v) Pre-award conununications or information received from or exchanged with prospective bidders potential goverrunent contractors or any other person submitting bids or proposals to theArmy or EPAto the extent that these are confidential as provided bythe applicable statutes or regulations governing Federal contracting, procurement or acquisition procedures; (vi) Pre-award communications or information received from or exchanged with prospective bidders, potential Shell contractors orany other person submitting bids or proposals to Shell, except to the extent thatdisclosure isrequired by law. (vii) Communications between the Armyor EPAwith the staff, members orcommittees ofCongress, subject however, to the right ofany Organization toobtain information which is otherwise available bylaw; (viii) Documents generated forpurposes ofsettlement negotiations; and

_34-(ix) DOCLIments prohibited from disclosure in accordance with Protective Orders Nos. 1,2, 3, and 4 in United States v. Shell Oil Co., Civil Action No. 83-C-2379 (consolidated with No. 83-C-2386)(D. Colo.), or pursuant to the terms of the Settlement Agreement. (b) Hold all Confidential Informational delivered pursuant to subparagraph 21.1(a) subject to subparagraphs 21.1(b)(l)-(3); for purposes ofthis provision, "Confidential Information"means all records, reports, orinformation designated in accordance with Section 104(e)(7)(C) ofCERCLA, 42 U.S.C. § 9604(e)(7)(C), or marked or stamped by an Organization ora Contractor with the legend "ConfidentialInformation" that concems or relates tothe trade secrets, processes, operations, style ofwork, or apparatus, orto confidential statistical data, amount or source ofany income, profits, losses, orexpenditures ofany person, firm, partnership, corporation, orassociation; and all other records, reports, orinformation that an Organization orContractor is required by law orcontract to maintain confidential. (i) Signatories shall treat as highly confidential, and not publish, divulge, disclose, or make known in any manner orto anyextent not authorized or required by law, any Confidential Information received by, ormade available to, them pursuant tothis Agreement. Ifthe State is not a Signatory,no other Organization shall be required toprovide any Confidential Information to the Statehereunder until the State enters into a confidentiality agreement with the Organizations by which the State agrees to maintain the confidentiality ofsuch Confidential Information onthe terms set forth in this subparagraph 21.1(b). (ii) Nothing herein shall prevent anOrganization from using Confidential Information ofthe others in connection with Dispute Resolution orjudicial review; provided that the Organization gives the others at least 10 days prior written notice ofits intent to use the Confidential Information for suchpurpose and takes all reasonable steps tolimit to the maximum extent practicable the disclosure ofsuch Confidential Information. (iii) The provisions ofthis subparagraph 21.1(b) shall not limit (A) any rights any Organization may otherwise have under the Consent Decree or applicable law toobtain oruse any Confidential Information, or (B) any remedies any Organization may have under applicable law or contract fordisclosure oruse bythe others ofany Confidential Information. (c) Provide the others on aregular basis withat least seven daysadvance notice (by location and general description ofthe type ofactivity) ofall sampling and other field activity to occur in an identified geographic area in connection with a RI/FS;(d) Provide the others, on request and to the maximum extent practicable, with "splits"ofall samples taken in connection with aRI/FS;

-35 -(e) For all sampling and test data collected in connection with a RI/FS, transmit to the others automatically: (i) QA'd/QC'ddata for such sampling or tes -resultswithin 30 days ofthe completion ofthe quality assurance/quality control 'process;or (ii) The "raw"sampling or testingdata, ifno QA'd/QC'ddata are transmitted tothe others within 150 days ofthe date when the sample was taken or the test occurred, except where there is a showing ofgood cause and agreement by all of the Signatories that additional time shall be afforded for the transmittal ofthe "QA'd/QC'd" data; and (f) Preserve for at lease five years from theissuance ofthe final ROD, irrespective ofany document retention policy tothe contrary, all documents or information not excluded by subparagraph 21.1(a) concerning: (i) Any RI/FS for an Operable Unit; (ii) Contamination at the Arsenal or released from the Arsenal; (iii) AnyIRA or Final Response Action. 21.2 The documents described in subparagraph 21.1(f) shall be preserved at the JARDF. The expense ofoperating the JARDF shall be accounted for bythe Army and Shell in accordance with the Financial Manual. After the conclusion ofthe 5-year period, Custodian shall notify the Signatories at least 60days in advance ofwhen it intends to destroy such documents. Ifany Signatory requests that the Custodian retain the documents for a longer period, the documents shall be retained for such additional time as all Signatories may agree or the Court mayorder. 21.3 The disclosure ofall or any ofa discrete portion ofan otherwise privileged document described in subparagraph 21.1(a), orthe entirety ofsuchdocument(s), shall not constitute a subject matter waiver or awaiver ofan otherwise valid privilege claim for the undisclosed portion ofthat document or for anyundisclosed documents ofthat type. 21.4 Nothing in paragraph 21.1 shall be construed todeny any person access to a document the disclosure ofwhich would be required pursuant to the Freedom of Information Act, 5 U.S.C. § 552, orthe applicable provisions ofColorado Revised Statutes, "PublicRecords," Colo. Rev.Stat. S§ 24-72-201
-24-72-205.

36 -XXII. ASSESSMENT AND IMPLEMENTATION OF INTERIM RESPONSE ACTIONS (IR-5s)

22.1 Prior to the effective date ofthis Agreement, the February 1,1988, and June 7, 1988, proposed consent decrees governed the assessment and implementation of IRAs. On the effective date ofthisAgreement, this Section shall control the assessment and implementation ofIRAs. The Organizations agree that the IRAs listed below are necessary and appropriate: (a) Groundwater Intercept and Treatment System North ofthe Arsenal: This action consists ofthe construction ofone or more pump and treat systems off-post ofthe Arsenal following assessment and selection, aspart ofthe IRA. (b) Improvement ofthe North Boundary System and Evaluation ofall Existing Boundary Systems: This actionconsists of(i) assessment ofthe need for improvements (such as expansion) to the North Boundary System and assessment, selection, and implementation ofany necessary improvements to the system, (ii) assessment ofthe other two boundary systems (Irondale and Northwest) onthe Arsenal and assessment, selection and implementation ofany appropriate improvements to these systems as necessary, and (iii) implementation ofthe groundwater recharge trenches to increase the rate ofreinjection oftreated groundwater in connection with the North Boundary. (c) Groundwater Intercept and Treatment System North ofBasin F: This action consists ofassessment and selection ofa groundwater intercept and treatment system north ofBasin F and implementation ofsuch a system as necessary. (d) Closure ofAbandoned Wells on the Arsenal: This action consists ofsampling, plugging, and closing ofwells on the Arsenal that are not currently part of the on-going groundwater monitoring program or that are not suitable for inclusion in the future monitoring program. The plugging and closure shall be performed in accordance with the criteria developed in July 1987by the United States,the State and Shell. (e) Groundwater Intercept an' dTreatment System in the Basin ANeck Area: This action consists ofdesign and construction ofan alluvial groundwater intercept and treatment system in the Basin ANeck area onthe Arsenal. (f) Basin F Liquids, Sludges, and Soils Remediation: This action, which is on-going and will continue, consists ofremediation ofcontaminated liquids, sludges, and soils from and under BasinF. Once liquids are removed totemporary storage tanks (constructed by Shell pursuant to the Basin F MOU), the soils and sludges remaining in thebasin and those down to a specified depth beneath the basin linerwill be solidified as necessary and transported to atemporary holding area, where they will be properly stored prior to treatment ordisposal. Treatment or disposal ofsoils and

-37-sludges shall be undertaken either as a subsequent phase ofthis IF-A or as part ofthe Final Response Action for the On-Post Operable Unit. (g) Building 1727 Sump Liquid: This action consists ofremediating contaminated liquid in the Building 1727 sump tomitigate any remaining threat of release of liquids from this sump. (h) Closure ofthe Hydrazine Facility: This action consists of(i) treatment and disposal ofpretreated liquids in tanks used for storage ofwaste products from the blending ofrocket fuels and (ii) dismantling and disposal ofall remaining above-gTound structures associated with the hydrazine facility. (i) Fugitive Dust Control: This action consists ofselection and implementation ofadust suppressant program as expeditiously as possible. 6) Sewer Remediation: This action consists ofremediation ofcertain priorirv portions ofthe sanitary sewer to minimize thispotential pathway ofcontaminant flow. Iiie priority list ofsewe'r system segments for this action will focus firstupon those segments located below the groundwater table. (k) Asbestos Removal: Ibis action consists ofthe United States' ongoing survey offriable (i.e., flaking) asbestos on the Arsenal and the prompt removal and disposal ofit, ifthe survey indicates a potential for human exposure. (1) Remediation ofOther Contamination Sources: This action consists ofassessment and, a&necessary, the selection ald implementation ofaqýTRA forthe Sectio, 6 Trenches, khe Section 36 Lime Pits, the M-1 Settling Basins,'Ihe Motorpool Area, tý Railroad Holding Track in the Rail Classification Yard and, when appropriate, the placement ofany material excavated from such locations in a properly constructed temporary storage area or areas on the Arsenal. Ifany Organization identifies any additional source area for inclusion in this IRA, the Organization may submit to the others a written report identifying the source area proposed for inclusion and setting forth the factual, technical, and scientific basis for the proposal. Within 30 days after submission ofthe report, the Army shall determine whether the source area should be included in this IRA and notify Shell, EPA and the State ofits determination. If Shell

or EPA disagrees with the Army's determination, SheU or EPA may invoke Dispute Resolution. (m) Pretreatment of CERCLA Liquid Waste: This action consists of development and implementation ofa program to treat wastewater resulting from the

assessment and implementation of Response Actions for the Site (e.g., treatment of wastewater) from the Arsenal laboratory and treatment ofdecontamination water prior

to their discharge into the Arsenal sanitary sewer, or development of other appropriate

measures for the disposal or reuse ofsuch water.

-38-22.2 The process set forth in paragraph 22.3 shall govern design and implementation ofthe Basin F Liquids, Sludges and Soils Remediation identified in paragraph 22.1(f). The process set forth in paragraph 22.4 shall govern implementation ofthe IRAs identified in subparagraphs 22.1(b)(iii) and 21.1(d). The process setforth in paragraph 22.5 shall govern implementation ofthe IRAs identified in subparagraphs 22.1(i) and 2-11(k). The process set forth inparagraphs 22.5-22.1.4 shall govern assessment, design and implementation ofthe IRAs identified in subparagraphs 22.1(a), 22.1(b)(i) and (ii) 22.1(c), 22.1(e), 22.1(g), 22.1(h), 22.10), 22.1(1) and 22.1 (m). 22.3 Because ofthe nature and status ofthe IRA forBasin F,as identified in paragraph 22.1(f), the design and implementation ofthat IRA shall be as follows: (a) This IRA shall attain ARARs to the maximum extent practicable. The Army shall provide to EPA, DOI, Shell and the State a draft ARAR selection document, which they may review and comment on within 7 days after receiving the document. (b) After EPA, DOI, Shell and the State have an opportunity to comment on the draft ARAR selection document, the Army shall prepare aproposed decision document for the final design ofthe IRA 71is design decision document shall be presented in draft to EPA, DOI, Shell, and the State and the public witha 30-day review and comment period. (c) After close ofthe 30-day comment period, the Army shall prepare a proposed final design decision document, which any Organization (or DOI, subject to paragraph 30.2) may raise to Dispute Resolution. The Army shall thereafter finalize the decision document consistent with the results ofDispute Resolution, ifinvoked. Any Organization (or DOI, subject toparagraph 30.2) may again invoke Dispute Resolution ifit disagrees that the final decision document is consistent with the results ofDispute Resolution, ifinvoked. (d) The final design decision document shall include IRA Deadlines for implementation ofthis IRA (ifnot set forth in theTechnical Program Plan) and shall be supported by apublicly available administrative record, which shall include, but not be limited to, significant facts and studies supporting the initial decision to conduct this IRA, all comments received conceming the final design ofthe action and the Army's response tothose comments. (e) Ifany Organization or DOI believes that this IRAis not being properly implemented, it may so advise the others and shall recommend how the action should be properly implemented. The Organizations shall attemptto reach unanimous agreement regarding such recommendation. AnyOrganization (or DOI, subject to paragraph 30.2) maysubmýit thematter toDispute Resolution to resolve the disagreement.

-39-(f) Shell has the right to participate in the implementation ofthis IRA pursuant to the conditions and provisions ofthis paragraph. (g) This IRA is also subject toparagraph 22.5. (h) Ifthe Army determines that the Basin F liquids need tobe removed from temporary storage prior to implementation ofthe Final Response Action for the On-post Operable Unit to avoid exceeding the service life ofthe tanks,it shall so notify the other Organizations and DOI inwriting. Such notification shall fullyexplain the basis ofthe Army's detern-Lination. The Army shall then prepare a proposed plan for the treatment and disposal (and temporary storage, ifappropriate) ofthe Basin F liquids, and shall provide a draft ofthe plan to the other Organizations and DOIfor a 30-day period ofreview and cornment. After considering the comments received, the Army shall issue afinal plan. Any Organization (or DOI, subject toparagraph 30.2) may invoke Dispute Resolution with respect to the finalplan not later than seven days ofreceipt ofthe plan from the Army. Shell orthe State may,upon completion of Dispute Resolution, seekjudicial review ofthe decision ofthe Administrator ofEPA. If Dispute Resolution is invoked, the final plan shall notbe implemented bythe Army until the conclusion ofDispute Resolution orjudicial review. 'Me final plan shall fully reflect the results ofDispute Resolution orjudicial review. 22.4 Because ofthe nature and status ofthe assessment ofthe feasibility ofthe groundwater recharge trenches, as described inparagraph 22.1(b)(iii), and the closure of abandoned wells on the Arsenal, as described inparagraph 22.1(d), these IRAs shall be subject to all the requirements set forth inparagraphs 22.5-22.14, with thefollowing exceptions: (a) The requirements ofparagraph 22.6 shall not apply to the IRA described in paragraph 22.1(b)(iii); however, thatIRA shall be subject to notice and comment when the draft IRA Decision Document isissued in accordance with paragraph 22.9. (b) Ile requirement inparagraph 22.6that the assessment be subject tonotice and cornment shall not apply to the EPA described in paragraph 22.1(d); however, that UZA shall be subject to notice and comment when the draft IRA Decision Document is issued in accordance with paragraph 22.9. (c) The requirement inparagraph 22.9 that the public be advised of these IRAs at a publicmeeting shall not apply. 22.5 All IRAs identified inparagraph 22.1 shall, to the maximum extent practicable, be consistent with and contribute to the efficientperformance ofFinal Response Actions. Ifan IRA wW not fully address the threatposed by arelease and further response isrequired, theArmy shall ensure an orderly -transitionfrom IRAs to

-40-Final Response Actions. Every effort shall be made to avoid duplication between IRAs and Final Response Actions. At the time ofimplementation ofFinal Response Actions, IRAs will either end orbe incorporated as part ofthe Final Response Actions. 22.6 The Lead Party shall prepare an assessment ofeach IRA subject to this paragraph. The goal ofthe assessment shall be to evaluate appropriate alternatives and to select the most cost-effective alternative for attaining the objective ofthe IRA. The evaluation ofalternatives may be based upon, but not limited to,such factors as protection ofhuman health and the environment, mitigation ofthe threat to human health and the reasonableness ofcost, and timeliness. Any studies orassessments that have been initiated or completed asofthe effective date ofthis Agreement may be used, ifappropriate, to satisfy the requirements ofthis paragraph. Each such assessment shall be submitted in draft tothe other Organizations and DOI for review and comment. The other Organizations and DOI may submit comments to the Uad Partywithin 30 days after receipt ofthe draft assessment. Within 30 days afterclose ofthe comment period, the Lead Party shall transmit afinal assessment to the other Organizations and DOI. -)-).7 IRAs shall, to the maximum extent practicable, attain ARARs. The Organizations and DOI shall have the opportunity to participate, at the RMA Committee level, in the identification and selection ofARARs that may be applicable to IRAs. The Army shall initially present its proposed decision on the draft assessment issued in accordance with paragraph 22.6. Ifthe Army is not the Lead Party for an IRA assessment, the Army shall provide its proposed ARAR determination to the Lead Party prior toor promptly after the Lead Party begins preparation ofthe draft assessment. The Lead Party shall assure to the maximum extent possible that the draft assessment is consistent with and based upon the Army's proposed ARAR determination. IfEPA, DOI (subject to paragraph 30.2), Shell or the State disagrees with theArmy's selection ofARARs, such disagreement shall be subject to Dispute Resolution, as provided in paragraph 22.10, orpursuant to such other process as the United States, Shell and the State may agree inwriting. 22.8 'Me Army shall issue aproposed IRA Decision Document forevery IRA subject to this paragraph promptly after issuance ofthe final assessment for that IRA, in accordance with paragraph 22.6. The proposed IRADecision Document shall be a concise document that (a) indicates the objective ofthe IRA; (b) discusses alternatives, ifany, that were considered; (c) provides the rationale forthe alternative selected; (d) presents the Army's final ARAR decision; (e) summarizes the significant comments received regarding the IRA and the Army's responses to those comrnents; and (f) establishes an IRADeadline for completion ofthe IRA, ifappropriate. IftheArmy is not Lead Party for an IRA, the Army shall consult with the Lead Partyprior to issuing the proposed IRA Decision Document. 22.9 Each proposed IRA Decision Document shall be subject to a30-day public comment period (or such shorter comment period depending on the exigencies ofthe

-41 -situation), during which the other Organizations, DOI and any other person may comment on the proposed IRA Decision Document. The Army shall prepare aresponse (0 all significant comments received in written and oral presentations during tile comment period. Time permitting, the Army shall hold at least one public meeting during the public comment period to inform the community in the vicinity ofthe Arsenal ofthe IRAs subject tothis paragraph. The Army may address more than one IRA at a public meeting. The Army shall widely publicize in the Denver metropolitan area the time and place ofthese public meetings. Each IRA Decision Document required for an IRA subject tothis paragraph shall be supported by apublicly available record. This record shall incorporate significant facts, documents and decisions concerning the IRA, as well as all public comments received and the Army's response to significant public conunents. Promptly after close ofthe comment period, the Army shall transmit tothe other Organizations and DOI a draft final IRA Decision Document. The draft final IRA Decision Document shall address the issues noted inparagraph 22.8, shall summarize the comments received onthe proposed IRA Decision Document, and shall include theArmy's responses tothose comments. 22.10 Within 20 days after issuance ofa draft finalIRA Decision Document for any IRA subject to thisparagraph, an Organization (orDOI, subject toparagraph 30.2) may invoke Dispute Resolution to resolve disputes concerning the IRAproposed in the draft final IRA Decision Document, including any dispute with respect tothe Army's ARAR decision. Shell or the State may seekjudicial review in accordancewith paragraph 39.2 ofthe decision thatresults from Dispute Resolution. The determination that the IRAs listed inparagraph 22.1 are necessary and appropriate shall not be subject to Dispute Resolution orjudicial review. 12.11 After close ofthe period forinvoking Dispute Resolution, ifDispute Resolution isnot invoked, or after completion ofDispute Resolution, ifinvoked, the Army shall issue a final IRA Decision Document tothe other Organizations and DOI. Only preliminary design work for an IRA forwhich an IRA Decision Document is required may be conducted prior toissuance ofthe final IRA Decision Document for that IRA- The public shall be notified ofthe availability ofthe final IRA Decision Document and the record supporting it. 22.12 Shell shall have the right to participate inthe assessment, design and implementation ofIRAs pursuant to the conditions andprovisions ofthis Agreement.
22.13 FoHowing completion ofall design work specified in an IRA Decision Document, the Lead Party shall issue an IRA Implementation Document that shall include the final drawings and specifications andthe final design analysis and cost estimate forimplementation ofthat IRA and shall also include IRADeadlines for implementation ofthe MA 22.14 -fbeLead Party responsible for designing or implementing an IRA shall keep the other Organizations and DOI apprised oftheprogress ofthose activities.

-42-Documents relating tothe design and implementation ofthe IRA shall be submitted in draft to the other Organizations and DOI for review and comment. Ifany Organization or DOI believes that any IRA is being designed or implemented in a way that will not meet the objectives for the IRA set forth in the final IRA Decision Document or IRA Implementation Document or is otherwise not beingproperly implemented, itmay so advise the others and shall recommend how the IRA should be properly designed or implemented. Any Organization (or DOI, subject to paragraph 30.2) may invoke Dispute Resolution to resolve the disagreement. T1.15 IRA Deadlines may be extended for good cause in accordance withthe provisions ofparagraphs 26.17-16.28. 22.16 At any time prior to the issuance ofthe On-Post or the Off-Post Operable Unit ROD, as appropriate, any Organization may submit a concise written statement to the RMA Committee which requests consideration bythe Organizations oftheneed for additional action or modification ofany IRA because ofinformation thatwas not available, orconditions that were unknown, atthe time that the IRA Decision Document was finalized. The statement shall be accompanied by a supporting technical study and, ifdeemed appropriate bythe proponent oftheadditional action or modification, alegal memorandum. In the event that aunanimous agreement is not reached by the RMA Committee on the need for additional action or modification, the additional action or modification may be raised by any Organization forDispute Resolution. The RMA Council, SAPC or FRC shall require the additional action or modification only upon a showing that the requested additional action or modification would be ofsignificant assistance, prior to the issuance ofthe On-Post or the Off-Post Operable Unit ROD, as appropriate, in assuring protection ofhuman health and the envirorunent. XXIII. EMERGENCY ACTIONS 23.1 Notwithstanding any otherprovision ofthisAgreement, the Army retains the right toconduct such Emergency Actions as maybe necessary to alleviate immediate threats to human health orthe environment from the release or threat ofrelease of hazardous substances, pollutants or contaminants at orfrom the Arsenal. Such actions may be conducted at anytime, either before or afterthe issuance ofaROD. Notwithstanding any otherprovision ofthis Agreement or the Settlement Agreement, Shell shall not be liable for the cost ofany Emergency Action taken solely inresponse to a release or threat ofrelease ofapollutant orcontaminant.
23.2 The Army shall provide the other Organizations and DOI with oral notice

as soon as possible after the Army determines that an Emergency Action is necessary. Ifthe exigencies ofthe circumstances permit, theArmy shall consult the other Organizations and DOIbefore undertaking the Emergency Action. In addition, within three days ofinitiating such an Emergency Action the Army shall provide written notice tothe other Organizations and DOI explaining why suchEmergency Action is or was

-43-necessary. Promptly thereafter the Axmy shall provide the other Organizations and DOI with the written bases (factual, technical, and scientific) for such Emergency Action and any available documents supporting such action. Upon completion ofan Emergency Action, the Army shall notify the other Organizations and DOI in writing that the Emergency Action has been implemented. Such notice shall state whether, and to what extent, the Emergency Action varied from the description ofthe action in the written notice provided pursuant to the third sentence ofthis paragraph. 23.3 If, following receipt ofan Emergency Action notice and the supporting documentation referred to in paragraph '23.2, Shell concludes that the action need not have been conducted as an Emergency Action, itmay so notify the other Organizations in writing. Such notice must beprovided within 30days ofthe receipt ofthe Emergency Action notice and supporting documentation and shall fully explain the basis ofShell's conclusion that the action was not necessary to alleviate an immediate threat tohuman health or the environment from the release orthreat ofrelease ofahazardous substance, pollutant orcontaminant. Ifthe Army disagrees with Shell's conclusion, Shell may submit the issue to a special meeting of the SAPC, the Army, EPA and Shell members ofwhich shall make the final decision with respect to the disagreement. 23.4 IfShell concludes that any portion ofan Emergency Action was not conducted in accordance with the NCP orwas conducted solely inresponse to a release or threat ofrelease ofapollutant orcontaminant, Shell may so notifythe other Organizations in writing. Such notice must beprovided within 30days after Shell has been notified, pursuant to paragraph 23.2, that an Emergency Action conducted by the Army has been implemented and shall fully explain thebasis ofShell's conclusion. If the Armydisagrees with Shell's conclusion, Shell maysubmit the issue to a special meeting ofthe SAPC, the Army,EPA and Shell members ofwhich shall make the final decision with respect to the disagreement. 13.5 Ifthe Army agrees, or itis determined bytheArmy, EPA and Shell members ofthe SAPC or the Regional Administrator ofthe EPA (ifthe Army,EPA, and Shell members fail to reach unanimity) that an actionwas notproperly conducted as an Emergency Action orwas conducted solely in response toa release or threat of release ofapollutant orcontaminant, the costs ofsuch action shallbe an Army-Only Response Costs. IftheArmy agrees, or the decision reached by the Army,EPA and Shell members ofthe SAPC or the Regional Administrator ofthe EPA (iftheArmy, EPA and SheU members fail to reach unanimity) is that an Emergency Action was not implemented in whole orinpart in accordance with the NCP, the costs ofthat portion ofthe action so determined tobe inconsistent with the NCP shall be anArmy-Only Response Cost. 23.6 In no event shafl Shell's notification to theArmy pursuant to paragraphs 23.3 or23.4 above prevent the Armyfrom implementing the Emergency Action that is the subject ofthe notice.

-44-23.7 Time permitting, at the request ofthe Army, Shell may conduct, or may participate in conducting, all or any portion ofan Emergency Action to the extent, and pursuant to such terms as may be mutually agreeable tothe Army and Shell. As soon as practicable after Shell agrees to participate in an Emergency Action, Shell and the Armv shall enter into a written agreement that sets forth the terms and conditions of ShelPs participation. Thereafter, Shell's participation shall be in accordance with that agreement. XXIV. REMEDLAL-INVES-nGATIONIFEASIBUTY STUDIES (i) Responsibilities for On-Post Operable Unit 24.1 Priorto the effective date ofthis Agreement, Exhibit E to the February 1, 1988, and June 7, 1988,proposed consent decrees governed the RI/FS for the On-Post Operable Unit. On the effective date ofthis Agreement, this Section shall control the RI/FS for the On-Post Operable Unit. Shell'sparticipation as Lead Party in the RI/FS for the On-Post Operable Unit shall be in accordance with the terms ofthe Settlement Agreement and the following: (a) If, following completion ofthe Technical Program Plan, a New Product or Subproduct proposed by anOrganization isincluded in the RI/FS in accordance with paragraph 24.7, or an Other Deliverable proposed by an Organization is determined tobe necessary in accordance with paragraph 24.59, Shell shall be afforded a reasonable period oftime to request in writing that itbe designated Lead Party for such New Product or Subproduct or Other Deliverable. The Army shall determine whether it is more appropriate for Shell 'thanthe Army tobe Lead Party for Ithe New Product, Subproduct or Other Deliverable and shall notify Shell in writing ofthe Army's determination within 15 days ofreceipt ofShell's request. (b) If,pursuant toparagraphs 20.8(d) or 24.1(a), the Army denies Shell's request to be Lead Party for any Product, Subproduct or Other Deliverable, Shell may request, within seven days ofthe receipt ofsuch denial, by written notice to the SAPC, a meeting between the Army's SAPC member and Shell's SAPC member to review the denial. Promptly after receipt ofsuch notice, the two members shall meet and discuss Shell's request tobe Lead Party. Following such meeting, the decision of the Army's SAPC member shall confirm or reverse the denial. Such decision shall be final and not subject tojudicial review orDispute Resolution. (c) Once it has been determined that it is more appropriate for Shell to be Lead Party forthe New Product, Subproduct orOther Deliverable, the Army and Shell shall,pursuant to the Memorandum ofUnderstanding attached as Exhibit G tothe Settlement Agreement, develop and sign a scope ofwork by which thework forthe New Product, Subproduct or Other Deliverable shall be done.

45
-24.2 In addition to the Lead Party responsibilities listed in the previous paragraph, Shell may provide technical assistance or technical support to the Army with respect to any aspect ofthe On-Post Operable Unit. 24.3 The Army shall develop, as Lead Party, all Products, Subproducts, Technical Plans and Other Deliverables for the On-Post Operable Unit not developed by Shell pursuant toparagraphs 24.1 and 24.2. (ii) Responsibilities for Off-Post Operable Unit 24.4 The Army shall develop, as Lead Party, all Products, Subproducts and Other Deliverables for the Off-Post Operable Unit. Shell mayprovide technical assistance or technical support or, at the request ofthe Army, prepare a Technical Plan for a Product, Subproduct or Other Deliverable being developed bythe Army for the Off-Post Operable Unit. Prior tothe effective date ofthis Agreement, Exhibit E to the February 1,1988, and June 7, 1988, proposed consent decrees governed the RI/FS for the Off-Post Operable Unit. On the effective date ofthisAgreement, this Section shall control the RI/FS for the Off-Post Operable Unit. (iii) Product Managers 24.5 For each Product identified for an Operable Unit, the Lead Party shall designate a Product Manager. The Product Manager shall also be responsible for overseeing all Subproducts associated with that Product. (iv) Interaction ofLead Agency and Lead Party 24.6 Ifthe Lead Party for aProduct or Subproduct is other than the Lead Agency, the Lead Party shall keep the Lead Agency apprised ofitsprogress so thatthe Lead Agency may monitor the Lead Party's progress. The Lead Party shall consult with the Lead Agency before taking any significant action with respect to such Product or Subproduct. Ile Lead Agency shall be responsible forall ARAR determinations for a Product or Subproduct. (v) Designation ofNew Products and Subproducts, 24.7 For purposes ofthis Agreement, New Products and Subproducts shall include: (1) any Products or Subproducts,not listed inparagraphs 24.30, 24.32 and 24.34 which are determined necessary foran Operable Unit; and (2) anyProducts or Subproducts listed inparagraphs 24.30,24.32 and 24.34 which are determined torequire such substantial modification as to require the preparation ofnew Technical Plans.
24.8 'Mere shall be noNew Products or Subproducts forthe RI for the On-Post Operable Unit. Subject to the previous sentence, any Organization may propose aNew Product or Subproduct for an Operable Unit (other than for the On-Post RI) at any

-46-time after completion ofthe Technical Program Plan. Any such proposal during the development ofthe Plan may be subject to Dispute Resolution only in the context of Dispute Resolution on the Plan. After completion ofthe Plan, such aproposal may be made at any time at the RMA Committee level. Upon unanimous agreement of the Organizations, the proposed New Product or Subproduct shall be included in the applicable RJ/FS. Any Organization may invoke Dispute Resolution with respect to a proposal for a New Product or Subproduct made after completion ofthe Technical Program Plan. (vi) Effect ofNew Product or ubproduct-Designation 24.9 New Technical Plans shall be required for all New Products and Subproducts designated pursuant to paragraphs 24.7 and 24.8. Technical Plans for such New Products orSubproducts shall be prepared pursuant toparagraphs 24.11 and 24.28. Technical Plans for New Products or Subproducts shall be the only Technical Plans subject to Dispute Resolution. (vii) Revision ofOn-Going RI Products-or Subgroducts 24.10 After completion ofthe Technical Program Plan,any Organization may seek to revise any Product or Subproduct for the RI for the On-Post Operable Unit, including seeking any additional field work, pilotstudies, computer modeling or other supporting technical work ifthe requested revision isdetermined necessary as aresult of information that was not available, or conditions that were unknown, at the time the Technical Program Plan was completed. Such Organization shall submit aconcise written statement to the RMA Committee which specifies the nature ofthe requested revision and how the requested revision arises from previously unavailable information orunknown conditions. The statement shall be accompanied by a supporting technical study and, ifappropriate, a legal memorandum. In the event that unanimous agreement is not reached by the RMA Coffunittee on the need for the requested revision, the revision may be raised to Dispute Resolution by any Organization. The RMA Council, SAPC and FRC shall require the revision ofthe Product or Subproduct onlyupon a showing that the requested revision could be ofsignificant assistance in evaluating impacts onthe public health or the envirorunent, or is otherwise necessary to assure the protection ofhuman health or the environment. (viii) Preparation-of New Technical Plans (a) Applicability 24.11 The f6flowing paragraphs 24.12-24.28 shafl govern the preparation of Technical Plans for New Products orSubproducts designated pursuant toparagraphs 24.7-24.8.

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-(b) Initial Effort to Reach Consensus on the Scope ofWork for New Technical Plans 24.12) Promptly after a Product Manager is designated for a New Product, he or she shall meet with the RMA Committee and attempt to reach unanimous agreement (to the maximum extent practicable) on the development, refinement and specification ofthe scope ofwork for the newTechnical Plan for that Product. Counsel for the United States, Army, Shell and the State may attend and participate in such meetings. (c) Draft Technical Plans for New Products and Subprodlicts 24.13 Any Organization that is the proponent ofaNew Product or Subproduct which becomes part ofa RI/FS in accordance with paragraphs 24.7-24.8 shall prepare the draft Technical Plan for that Product ofSubproduct, provided, however, that ifEPA is the proponent, it shall prepare the statement ofwork forthe new Technical Plan and the Army shall prepare the Technical Plan. 24.14 Adraft Technical Plan shall provide, to the extent practicable, objectives for the Technical Plan and adequate detail as to how these objectives are tobe achieved. 24.15 Ifthe initial draft ofthe Technical Planisprepared by acontractor, the proponent ofthe New Product or Subproduct may revise theTechnical Plan asdeemed necessary prior to transmittal ofthe draft to the other Organizations.
24.16 A draft Technical Plan which isprepared by acontractor shall not be deemed to be an admission by any Organization. 24.17 Work shaU not commence under anyTechnical Plan for a New Product or Subproduct prior to the completion ofthe review and comment period and the period for invoking Dispute Resolution for such Technical Plan,or uponcompletion ofDispute Resolution ifinvoked, except that work may proceed pursuant to a disputed Technical Plan ifsuch work is notmateriafly and substantially related to that portion ofthe Technical plan that is indispute. (d) Review and Comment onDraft Technical Plans
24.18 Draft Technical Plans for NewProducts or Subproducts shall be transmitted by the preparer oftheTechnical Plans to the other Organizations for a30- dayperiod ofreview and comment. 24.19 The recipients ofa draft Technical Plan shalltransmit their comments by overnight mail tothe other Organizations.

-48.24.20 Representatives ofthe Organization that prepared the draft Technical Plan shall make themselves readily available to the other Organizations during the comment period for purposes ofinformally answering questions and conferring with respect tothe information and proposals provided in the draftTechnical Plan. Oral comments made at such meeting need not be the subject ofawritten response by the preparer ofthe draft Technical Plan. 24.21 The other Organizations may include in their comments on a draft Technical Plan a statement identifying any ARARs which they believe to bepertinent to the matters addressed in the Technical Plan. (e) Draft Final Plans and Response to Comments 24.22 Following the close ofthe comment period, the Organization thatprepared the draft Techrýcal Plan shall give full consideration to all written comments submitted on the draft (and the Lead Agency shall give full consideration to all comments on potential ARARs) and each shall make appropriate modifications where warranted. While the contents ofthe resulting draft final Technical Plan shall.be the determination ofthe preparer ofthe Technical Plan, the document shall be the product ofunanimous agreement to the extent practicable. 24.23 Within 30 days ofthe close ofthe conunent period, the Organization that prepared the draft Technical Plan shall transmit to the other Organizations adraft final Technical Plan. At that time, the preparer shall also respond in writing to all written comments with a reasoned technical or legal response which addresses the commenters' concerns in appropriate detail. This period may bejointly extended by thepreparer and Lead Agency for an additional 15 days. This period may be further extended in accordance with paragraph 26.18 ifadditional field work, pilot studies, computer modeling orother supporting technical work isnecessary. (f) Availability ofDispute Resolution 24.24 Within 15 days ofreceipt ofthe draft final Technical Plan for aNew Product or Subproduct, any Organization may raise any aspectofitto Dispute Resolution. Prior to raising a matter for Dispute Resolution, the Organizations shall endeavor toresolve it informally atthe RMA Committee level. Workwhich the disputing Organization does not identify as being in dispute or materially and substantially affected bythe issue in dispute shall proceed irrespective ofinformal efforts to resolve the dispute or the invocation ofDispute Resolution. (g) Finalization ofNewTechnical Plans 24.25 To the extent that it isdetermined, either by theRMA Committee oras a result ofDispute Resolution, that a modification ofthe draft finalTechnical Plan is warranted, thepreparer ofthe Technical Plan shall make such modification.

-49-1-4.26 Either upon the close ofthe time for invoking Dispute Resolution, or upon the completion of Dispute Resolution ifinvoked and ifthe determination ofthe Organization that prepared the Technical Plan is sustained, the preparer ofthe Technical Plan shall advise the other Organizations in writing within seven days that the draft final Technical Plan shall serve as the final version. In the event that Dispute Resolution is invoked and the determination ofthe Organization that prepared the Technical Plan is not sustained, such Organization shall-then prepare and submit to the other Organizations, within not more than 35 days, a revision ofthe draft final version ofthe Technical Plan which conforms to the result ofDispute Resolution. Ifany Organization believes that the revision does not conform to the result ofDispute Resolution, it mayinvoke Dispute Resolution to compel further revision. In such event, the preparer ofthe Technical Plan shall promptly advise the other Organizations in writing when the Technical Plan has been finalized as aresult ofDispute Resolution and, with such notice, shall submit a copy ofthe finalized Technical Plan to each of them ifit differs from the previously delivered draft. 24.27 The Final Technical Plan shall be thebasis for all subsequent contractual or staffwork by the Lead Agency or Lead Party for the NewProduct orSubproduct addressed in the Technical Plan. No field work addressed in the Technical Plan shall begin until the close ofthe time for invoking Dispute Resolution or upon the completion ofDispute Resolution, ifinvoked, urfless such field work is not affected bythe matterin dispute. (ix) On-Going Technical Plans 24.28 This paragraph governs the preparation ofTechnical Plans for all Products and Subproducts other than those designated as New Products or Subproducts in accordance with paragraphs 24.7-24.8. The Product Managers shafl transmit the draft Technical Plans forwhich they have responsibility to the other Organizations for a30- day period ofreview and comment. For any Technical Plan made available tothe other Organizations prior to issuance ofthe draft Technical Program Plan bythe Armyin accordance with paragraph 20.6, the comment period shaU be extended until the close of the comment period on the draft Technical Program Plan. Comments received ona draft Technical Plan shall be promptly addressed in a final Technical Plan,in a separate document, or, ifappropriate, in the Army's response tocomments on the Technical Program Plan. (x) Draft and Final Reports for-Products and Subproducts (a) Applicabi1i '24.29 As ofthe effective day ofthis Agreement, aH draft and final reports for any Product or Subproduct shall be prepared in accordance with paragraphs 24.30-24.60.

-50-(b) Product and Subproduct Reports for the On-Post Operable Unit 14.30 Products: The Lead Agency shall make available for review and comment, in accordance with paragraphs 24.45 and 24.47, draft reports for the following Products for the On-Post Operable Unit: RI Products (i) Air (results ofArsenal-wide air investigations); (ii) Buildings (results ofArsenal-wide buildings investigations); (iii) Biota (results ofArsenal-wide biota investigations); (iv) Water (results ofArsenal-wide surface water and groundwater investigations); (v) On-Post SARs (integration ofthe results ofair,buildings, biota, water and soils investigations); (vi) RI (integration ofall RI data presented in the RI Products). EA Products (vii) Contaminant identification, with proposed EA-related ARAR Determination (site characterization, selection oftarget contaminants, and identification ofenvironmental transport and fate mechanisms and ARARs for target contaminants) (viii) Exposure and Toxicity Assessment (identification and analysis ofexposure pathways and extent ofexposure ofhuman and environmental'populations at actual and potential risk; evaluation ofthe toxicological properties oftarget contaminants) (ix) EA, with revised proposed EA-related ARAR Determination (development oftarget cleanup level ranges based on risk characterization and revised EA-related ARAR identification) FS Products (x) Development and Screening ofAltematives, with proposed ARAR Determination for EachAltemative (initial alternative screening process by which certain altematives are selected for in-depth evaluation)

51 -(xi) Evaluation ofAlternatives, with revised proposed ARAR Determination (in-depth evaluation ofalternatives resulting from initial screening; refinement ofproposed ARA.R determination for each alternative evaluated) (xii) FS with revised proposed ARAR Determination (development ofpreferred alternative and final refinement ofARAR determination for that alternative) 24.31 For the On-Post Operable Unit, only the draft final Product Reports identified in the previous paragraph shall be subject to Dispute Resolution. RI/FS Deadlines for issuance ofdraft Product Reports shall be established pursuant to paragraph 26.5. 74.32 Subproducts: The Lead Agency shall make available for review and comment, in accordance with the provisions ofparagraphs 24.45-24.47, draft reports for the following Subproducts for the On-Post Operable Unit: RI Subproducts (i) All Phase ICARs for the On-Post Operable Unit (tobe used in developing the RI Products presented in paragraph 24.30); EA Subproducts (ii) Risk Characterization (determination ofthe likelihood and extent ofany harm);

FS Subproduct (iii) Technology Inventories (first step in Development and Screening ofAlternatives); (iv) Treatment/Incineration Study (for incorporation into Evaluation ofAlternatives); (v) Disposal Facility Study (for incorporation into Evaluation of Alternatives); (vi) Advanced Technologies and PilotTreatment Studies (for incorporation inEvaluation ofAlternatives). 24.33 The Organizations maycomment on the draftreports forthe Subproducts listed inthe previous paragraphs and on any New Subproducts designated pursuant to paragraphs 24.7-24.8, as provided inparagraphs 24.7-24.48. Such Subproducts shall not be subject to Dispute Resolution. The Organizations shaH not be deemed to waive their

-52-right to comment subsequently on any issue which arose in connection with draft Subproduct reports. Schedules shall be established for the issuance ofdraft Subproduct reports pursuant to paragraphs 26.16 and 26.17. (c) Product and Subproduct Reports for the Off-Post Operable Unit
24.34 Product : The Lead Agency shall make available for review and comment, in accordance with paragraphs 24.45 and 24.47, draft reports for the following Products for the Off-Post Operable Unit: (i) Proposed Rl- and EA-related ARAR Determination (ii) EA and FS,with proposed FS-related ARAR Determination
'414.35 Forthe Off-Post Operable Unit, oaly the draft final Product reports identified in the previous paragraph shall be subject to Dispute Resolution. RI/FS Deadlines for the issuance ofthese draft Product reports shall be established pursuant to paragraph '416.7. 24.36 Subproducts: The Technology Inventories Subproduct for the On-Post Operable Unit shall also be used in developing the FS for the Off-Post Operable Unit. (d) Meetings ofthe RMA Committer,onthe Development ofProducts and Subproduct 24.37 Each Product Manager for New or Ongoing Products shall meet with the RMA Conunýittee approximately every 60 days, except as otherwise agreed by all Organizations, to review and discuss the progress ofworkbeing performed on the Products or Subproducts under that Product Manager's purview. Prior to preparing a draft report for a Product or Subproduct, the RMACommittee shall meet witheach appropriate Product Manager to discuss the Product and Subproduct results in an effort to reach a common understanding, tothe maximum extent practicable, with respect to the results to be presented in the draft report. %
(e) Identification and Determination ofPotential ARAV
24.38 For those Products orSubproducts thatconsist ofor include proposed ARAR determinations, prior to the issuance ofa draft Product or Subproduct report, the Army shall transmit aproposed ARAR determination tothe other Organizations for review and comment and, ifrequested by any Organization, counsel for the United States (including counsel forEPA and for the Army), counsel for Shell and counsel for the State shall meet and confer with the RMA Committee and appropriate Product Mangers concerning suchproposed ARAR determination. The other Organizations, DOI and ATSDR at that time mayalso propose potential ARARs for consideration and may participate in any related meeting. All potential proposed ARARs proposed bythe

- 53 -Organizations during the process shall be considered by the Lead Agency in its preparation ofthe draft Product report. 24.39 In accordance with CERCLA, the NCP and any pertinent guidance issued by EPAwhich is not inconsistent with CERCLA and the NCP, potential ARARs may include, but are not limited to, the following: (a) Ambient orchemical specific requirements which set health or riskbased concentration limits orranges invarious environmental media for specific hazardous substances, pollutants or contaminants; (b) Performance, design or other action-specific requirements which set controls orrestrictions on particular kinds ofactivities related to management of hazardous substances, pollutants or contaminants; and (c) Locational requirements which set restrictions on activities depending on the characteristics ofa site or its immediate environment. '11.4.40 In identifying potential ARARs, the Signatories recognize that actual ARARs can be identified only on a site-specific basis and thatARARs depend on the specific hazardous substances, pollutants and contaminants at a site, the particular actions proposed as a remedy and the characteristics ofa site. The Signatories recognize that ARAR identification is necessarily an iterative process and thatpotential ARARs must be re-examined throughout the RI/FS process until aROD is issued.
24.41*At the meeting identified in paragraph 24.38, each Organization shall identify, tothe best ofits ability, all ARARs pertinent to the Product being addressed. At that meeting the State shall identify all State ARARs referenced in Section 121(d)(216)(A)(ii) ofCERCLA, 42 U.S.C. § 9621(d)(2)(A)(ii), which are pertinent to the Product or Subproduct,being addressed. Draft ARAR determinations shall be prepared by the Lead Agency (in consultation with counsel) irrespective ofwhether another Organization is the Lead Party orthe proponent ofthe Product or Subproduct for which the ARAR determination is required. All ARAR determinations shall be prepared in accordance with Section 121(d) ofCERCLA, 42 U.S.C. § 9621(d), the NCP and any pertinent guidance issued by EPA which is not inconsistent withCERCLA and the NCP. 24.42 The Lead Agency shall be responsible forall proposed ARAR determinations. Such proposed determinations shallbe made by the LeadAgency as early inthe process ofdeveloping a Product or Subproduct as practicable. Where an ARAR determination ispart of aProduct or Subproduct that isbeing developed by a Lead Party other than the Lead Agency, the Lead Agency shall be responsible forthe ARAR portionofthat Product. In such cases, the Lead Party shall assure to the maximum extent possible that the technical portion ofthe draft Product report is

-54 -consistent with the ARAR determination ofthe Lead Agency prior to transmitting the draft report to the other Organizations forreview and comment. (f) Review and Comment on Draft Product and Subproduct Reports 24.43 Ifthe initial draft ofany Product orSubproduct report isprepared by a contractor, the Product Manager may revise it as deemed necessary prior totransmittal ofthe draft to the other Organizations. Draft Product orSubproduct reportswhich are prepared by a contractor shall not be deemed tobe admissions ofthe Lead Party or Lead Agency. 24.44 When Dispute Resolution is invoked on adraft final Product report, work shall not continue on any later sequential Product, prior to the completion ofDispute Resolution except for work which is not in dispute and is not materially and substantially related to the work which is in dispute. 24.45 The Lead Party for a Product shall transmit the draft Product report to the other Organizations on or before the RI/FS Deadline forthe issuance ofsuch report established pursuant toparagraph 26.6-26.7. 24.46 'Me Lead Party for a Subproduct shall transmit the draft Subproduct report to the other Organizations on or before the Schedule for the issuance ofsuch report established pursuant to paragraph 26.17. 24.47 All draft Product and Subproduct reports shall be subject to a45-day review and comment period concerning all aspects ofthe Product or Subproduct (including completeness). On orbefore the close ofthe 45-daycomment period, the other Organizations (and ATSDR and DOI,as appropriate) shall transn-dt by overnight mail their written comments to the Lead Party and the other Organizations. 24.48 Representatives ofthe Lead Party shall make themselves readily available to the other Organizations (and DOI, as appropriate) during the comment period for purposes ofinformally responding to questions and comments ondraft Product or Subproduct reports. Oral corturients made at such meetings need tobe the subject ofa written response bythe Lead Party onthe close ofthe comment period, and such comments may be raised during Dispute Resolution only ifthey were included intimely written comments or bear amaterial and substantial relationship to timelywritten comments or to other issues properly raised to Dispute Resolution. 24.49 In commenting ona draft Product or Subproduct report which consists of
or includes aproposed ARAR determination, the Organizations (and ATSDR and DOI, as appropriate) shall include a reasoned statement ofwhether they object to anyportion ofthe proposed ARAR determination. To the extent that an Organization does object, it shall explain all basesfor its objection in detail and shallidentify any ARARS which it believes were not properly addressed in the proposed ARAR determination.

55 -24.50 Following close ofthe comment period for a draft Product or Subproduct report, the Lead Party shall give full consideration to all written comments on the draft report submitted during the comment period (and the Lead Agency shall give full consideration to all such comments concerning a proposed ARAR determination). Within 30 days ofthe close ofthe comment period on a draft Subproduct report, the Lead Party shall transmit to the other Organizations its written response tocomments received within the comment period and the Lead Agency shall transmit tothe other Organizations its response to comments on ARARs received during the comment period. Within 30 daysof the close ofthe comment period on a draft Product report, the Lead Party shall transmit to the other Organizations adraft final Product report, which shall include the Lead Party's response to all written conunents, including the Lead Agency's response to comments on ARARs, received within the comment period. While the resulting draft final report shall be the responsibili. tyofthe Lead Party (except for ARAR determinations, which shall be the responsibility ofthe Lead Agency), it shall be the product ofunanimous agreement to the maximum extent possible. 24.51 The 30-day period for responding ýo comments on a draft Product or Subproduct report may bejointly extended by the Lead Party and Lead Agency for an additional 20 days. It maybe further extended, in accordance withparagraphs 26.8- 26.18, in the event that it is found necessary for the Lead Party or another Organization to perform additional field work, pilot studies, computer modeling or other supporting technical work. (g) Availability ofDispute Resolution forDraft Final Product Reports
24.52 With respect to Products, Subproducts and Other Deliverablei,-Dispute Resolution shall only be available for draft final Product reports. Within20 days of receipt ofsuch a draft final report, any Organization may raise any aspect ofit to Dispute Resolution. The resolution ofdisputes with respect to any ARAR determination required for that Product shall be as provided in Section XXX ofthis i\greement. Prior toraising a matter to Dispute Resolution, the Organizations shall attempt to resolve it informally at the RMA Committee level. During Dispute Resolution on a draft final Product report, work may go forward pursuant to thatreport, oron any later sequential Product, Subproduct or RI/FS Report, where (a) the disputing Organization does not identify such work as being indispute or materially and substantiafly related toworkwhich is in dispute; or (b) it is determined through Dispute Resolution that such work maygo forward pending the resolution ofthe dispute. (h) Finalization ofProduct Reports 24.53 Either upon the close ofthe time for involdng Dispute Resolution orupon the completion ofDispute Resolution ifinvoked andifthe Lead Party's determination is sustained, the Lead Party shall advise the other Organizations in writingwithin seven days that the draft final Product report shall serve as the final Product report. Inthe

56 -event that Dispute Resolution is invoked and the Lead Party's determination is not sustained, the Lead Agency shall make any appropriate modifications ofthe ARAR determination and the Lead Party shall then prepare, within not more than 35 days, a revision ofthe draft final report that conforms to the results ofthe Dispute Resolution, including any revision necessary as a result ofa modification ofan ARAR determination. This revision period may be extended, in accordance with paragraph 26.18, ifadditional field.work, pilot studies, computer modeling orother supporting technical work is necessary. Ifa draft final Product report is revised as a result ofa dispute resolved by SAPC or FRC,the revision maybe approved by the RMA Committee unless an Organization requests that itbe approved by SAPC. Ifa draft final Product report is revised as a result ofa dispute resolved by the RMA Council, the revision may be approved by the RMA Committee unless an Organization requests that itbe approved by the RMA Council. The Lead Party shall promptly send to each ofthe other Organizations a copy ofthe finalized Product report. 24.54 Subproduct reports shall be thebasis for the relevant portions ofdraft Product reports. Final Product reports and comments thereon shall be thebasis for the relevant portions ofRI/FS Reports. (i) Subseg.uent Modifications ofProduct Reports 24.55 Following the finalization ofaProduct report pursuant to paragraphs 24.53-25.59, any Organization may seek to modify the Product addressed in that report, including seeking additional field work, pilot studies, computer modeling or other supporting technical work, only as provided inthe following paragraphs 24.56 and 24.57. 24.56 An Organization may seek to modify aProduct after finalization ofthe report for that Product, ifit determines, based on new information that became available orconditions that became known after theProduct reportwas finalized, that the requested modification would be ofsignificant assistance inevaluating impacts on the human health or the environment or in evaluating theselection ofremedial alternatives. The Organization may seek such amodification by submitting aconcise written request to the RMA Committee. The request shall specifythe nature ofthe requested modification and how the request isbased onnew information orpreviously unknown conditions. 24.57 In the event that unanimous agreement is not reached bythe RNIA Committee on the need for a Product modification, any Organization may invoke Dispute Resolution to determine ifsuch modification shallbe conducted. The RMA Council, SAPC or FRC shall require the modification ofa Product report onlyupon a showing that: (1) the requested modification is based onnew information thatbecame available, or conditions that became known, after the Product reportwas finalized, and (2) the requested modification would be ofsignificant assistance in evaluating impacts

- 57 -on human health or the environment or in evaluating the selection ofremedial alternatives. 24.58 In the event that a modification ofa Product report is found tobe warranted as a result ofDispute Resolution, the proponent ofthe modification shall prepare and have adopted a draft, draft final and final Technical Plan and new draft, draft final and final Product report as itwould be required todo for a New Product pursuant to thisAgreement. 0) Other DeliVeTables 24.59 Any Organization may propose a new Other Deliverable that has not been proposed by the Army in the Technical Program Plan. Any such proposal during the development ofthe Technical Program Plan maybe subject toDispute Resolution only in the context ofDispute Resolution on the Technical Program Plan. After completion ofthe Technical Program Plan, such a proposal maybe made at any time at the RNLA Comn-dttee level. Upon unanimous agreement ofthe RMA Committee members that the proposed Other Deliverable is necessary, that Other Deliverable shall be included in the applicable RI/FS. Ifthe RMA Committee members do not reach unanimous agreement that the Other Deliverable is necessary, any Organization may invoke Dispute Resolution with respect to aproposal. If,as a result ofDispute Resolution, the proposed Other Deliverable is determined tobe necessary, itshall be included inthe applicable RI/FS. 24.60 Other Deliverables that have not been issued in draft as ofthe effective (late ofthis Agreement shall be submitted in draft to the otherý'Organizations for comment promptly upon theirpreparation bythe Lead Party. Any Organization may submit written conunents on drafts ofOther Deliverables. Failure to submit such comments does not affect the right ofan Organization to address such Other Deliverables when commenting on arelated Product or Subproduct. 24.61 The Lead Party for an Other Deliverable shall respond to comments received on such Other Deliverable in a separate document-or in arelated Product or Subproduct Report. (k) Remedial InvestigationJFeasibilily Study Rep,orts 24.62 Following the finalization ofall Product reports required for an Operable Unit, the Lead Agency shall prepare the RI/FS Report for thatOperable Unit. Each RI/FS Report shall identify the Lead Agency's preferred alternative, shall include the information and methodology used for site characterization, shall have an appendix that summarizes all proposed ARAR determinations applicable to the RI/FS and presents any necessary ARAR certification (including State standards compliance), and shall comply with any other CERCLA orNCP requirements or EPA guidance which is not inconsistent with CERCLA and the NCP.

- 58 -24.63 On orbefore the applicable deadline established pursuant to paragraph 26.7(c), the Lead Agency shall have notice published in at least one major Denver newspaper ofgeneral circulation, in accordance with CERCIA Section 117(a) and (d), 42 U.S.C. §9617(a) and (d), ofthe availability ofthe RI/FS Report and abrief analysis ofthe RI/FS Report, invite public comment for at least a 60-day period, and conduct one or more transcribed public meetings at a location near the Arsenal. 24.64 Any person, including an Organization ora member ofthe TRC,may offer comments on the RI/FS Report during the public comment period. 24.65 Upon the close ofthe public comment period, the Lead Agency shall prepare a response to all significant comments received. A summary ofsuchresponses shall be included in the applicable ROD, in accordance with the following paragraph.
XXV. RECORDS OF DECISION ("RODs") (i) Contents ofEach ROD 25.1 Each ROD shall identify the remedial action selected for the Operable Unit addressed in the ROD, describe all bases for the selection, summarize and respond to significant public comments received onthe RI/FS Report,provide Design Deadlines for Response Actions addressed in the ROD, provide an appendix ofARARs and an A.RAR certification (including State standards compliance), and comply with any other CERCLA or NCP requirement or EPA guidance which isnot inconsistent with CERCLA and the NCP. (ii) Draft RODs 125.2 Not more than 75 days after the conclusion ofthepublic corriment period
on a RI/FS Report, the Lead Agency shall transmit the draft ROD tothe other Organizations for 30 days of review and comment. Thisperiod for transmittal ofthe draft ROD may be extended, pursuant to paragraphs 26.8-26.15, because ofthe large volume or complexity ofthe comments received bythe Lead Agency oron any other showing ofgood cause for such extension. Each Organization shall transmit its written comments to the others. (iii) Review and Comment on Draft RODs 25.3 Representatives ofthe Lead Agency shall make themselves readily available to the other Organizations duringthe comment period on the draft ROD to respond informally to comments and questions on the draft ROD. Oral comments made at such meetings need not be the subject ofawritten response by the Lead Agency on the close ofthe comment period.

-59.25.4 In each oftheir respective comments, the Organizations shall include a reasoned statement ofwhether they object to any ofthe proposed ARAR determinations in the draft ROD and, to the extent that they do, shall explain all bases for their objections. (iv) Draft Final RODs 1-5.5 Following the close ofthe comment period provided by paragraph 25.2 the Lead Agency shall give full consideration to all written comments submitted on the draft ROD (including comments onproposed ARAR determinations) and shall make appropriate modifications wherever warranted. 25.6 Within 30 days ofthe receipt ofcomments, the Lead Agency shall transmit tothe other Organizations a draft final ROD (including proposed ARAR determinations). At that time, the Lead Agency shall also respond inwriting to all written comments with areasoned technical or legal response which addresses the commenters' concerns in appropriate detail. 77hisperiod may be extended, in accordance with paragraph 26.8-26.15, in the event that itis found necessary for the Lead Agency oranother Organization to perform additional field work, pilot studies, computer modeling or other supporting technical work. (v) Availability ofDispute Resolution 25.7 Within 15 days ofthe receipt ofdraft final ROD, any Organization may raise any aspect ofthe ROD (including proposed ARAR determinations) to Dispute Resolution. Otherwise, an Organization shall be deemed to have concuffed in the draft final ROD. (vi) Finalization ofRODs 25.8 Within seven days ofthe deadline for invoking Dispute Resolution, or within seven days ofthe completion ofDispute Resolution, ifinvoked and ifthe Lead Agency's determination is sustained, the Lead Agency shall transmit by ovemight mail,
on behalfofthe United States, acopy ofthe final ROD tothe other Organizations.
25.9 In the event that Dispute Resolution is invoked and the Lead Agency's determination is not sustained, the Lead Agency shall prepare, within not more than 45 days, a revision ofthe draft final ROD which conforms to the results ofDispute Resolution. This period maybe extended in accordance withparagraph 26.8-26.15, on a showing ofgood cause bythe Lead Agency. Prior to transmitting the revised ROD to tile other Organizations, the Lead Agency shall submitit to SAPC for review, and approval. Within seven days ofSAPC approval, the Lead Agency shall transmit a copy ofthe final ROD, on behalfofthe United States, to the other Organizations.

-60-(vii) Publication and Judicial Revie%v-ofRODs .25.10 Upon transmittal ofa final ROD to the other Organizations pursuant to paragraph 25.8 or 25.9, the Lead Agency.shall notify the State inwriting ofits intent to publicize, no sooner than 30days from the date ofsuch notice, the availability ofthe final ROD. The notice to the §tate shall also request that the State, pursuant to Section 121(f)(3)(A) ofCERCLA, 42 U.S.C. § 9621(f)(3)(A), concur in the selection of the Final Response Action reflected in the ROD. 25.11 If,at the time notice is sent to the State pursuant to the previous paragraph there is pending litigation concerning remediation ofthe Site pursuant to CERCLA, the Lead Agency shall submit the final ROD, and a summary ofthe final ROD, to the Court, together with the certified Adn-iinistrative Record forthe ROD, or, as appropriate, a suitable index to, ormicrofilm copy of,such certified Administrative Record, ifthe actual Adn-dnistrative Record is tobe maintained at a location other than the courthouse. 25.12 Ifthe State does not concur in the final ROD, it maybring an action in the Court pursuant to Section 121(f)(3) ofCERCLA, 42U.S.C. § 9621(f)(3), within 30 days ofthe submittal ofthe ROD to the Court pursuant to the previous paragraph. 25.13 If Shell does not concur in the final ROD, it maybring an action in the Court within 30days ofthe submittal ofthe ROD to the Court pursuant to paragraph 25.11 or may participate in an action broughtby the State. Shell'sjudicial challenge to a final ROD shall be subject to the provisions ofparagraph 30.7. 25.14 Ifneither the State nor Shell brings a timely action pursuant to paragraphs 25.12 or25.13, the Lead Agency shall publish notice ofthe availability ofthe ROD and Administrative Record in at least one major Denver newspaper ofgeneral circulation. After publication ofsuch notice, the Lead Agency may proceed with the design and implementation ofthe response actions addressed in theROD. Ifthe State or Shell brings an action pursuant toparagraph 25.12 or 25.13, the Lead Agency may nevertheless proceed with any design work that isunrelated to or not inconsistent with the reliefsought in such action, and mayproceed with any other work as maybe determined by the Court. 25.15 Nothing in thisAgreement shall be deemed to modify in any waythe right ofthe State or Shell to seekjudicial review, in accordance with CERCLA Section 113(a), 42 U.S.C. s 9613(a), in the United States Circuit Court ofAppeals for the District ofColumbia of any provision ofthe NCP or any other regulation promulgated under CERCLA.

-61 -(viii) Modificationof ROD.s 25.16 An Organization may seek to modify a ROD ifitdetermines, based on information that was not available, or conditions that were not known at the time notice ofthe Availability ofthe ROD was published, that good cause for such modification exists. Such Organization may seek such a modification bysubmitting to the RMA Committee a detailed statement demonstrating good cause for such modification together with a supporting technical study and, ifappropriate, a legal memorandum. Upon receipt ofsuch detailed statement, any Organization may invoke Dispute Resolution ifit believes the modification is unwarranted or ifit believes the modification is significant enough to require a Supplemental Response Action, rather than a modification ofthe ROD, and the proposing Organization disagrees. Ifall Organizations agree, or ifDispute Resolution resolves, that amodification ofthe ROD is appropriate, the ROD shall thereafter be modified in accordance with paragraphs 25.5-25.9 and CERCLA Section 117,42 U.S.C. § 9617.

XXVI. DEADLINES AND SCHEDULES AND EXTENSIONS THEREOF (i) Prior Procedure 26.1 Prior to the effective date ofthis Agreement, the February 1,1988, and June 7, 1988, proposed consent decrees governed the development, enforceability and extension ofDeadlines and Schedules. On the effective date ofthis Agreement, this Section shall control the development, enforceability and extension ofDeadlines and Schedules. (ii) Development ofDeadlines 16.7-1 RI/FS Deadlines shall be developed in accordance with paragraphs 20.22(g), 26.6 and 26.7. 26.3 IRA Deadlines shall be developed in accordance with paragraphs 22.13. 26.4 Supplemental Response Action Deadlines shall be developed in accordance with paragraph 33.4. 26.5 Design Deadlines and Implementation Deadlines shall'be developed in accordance with paragraphs 25.1 and 34.2. (iii) RIJFS Deadlines for the On-Post Operable Unit 26.6 For the On-Post Operable Unit, RI/FS Deadlines that shall be enforceable pursuant to paragraphs 28.1-28.5, and subject to the stipulated civilpenalty provisions in

-,62 -paragraphs 29.1-29.5, are the dates established in the Technical Program Plan for the following milestones: (a) Date for issuance ofa draft Technical Plan for a New Product; (b) Date for issuance ofthe draft reports for the RI, EA and FS Products listed in paragraph 24.30; (c) Date for publication ofthe notice ofavailability ofthe RI/FS Report, pursuant to paragraph 24.63. (iv) RI-IFS Deadlines for the Off-Po-st Operable Unit 26.7 For the Off-Post Operable Unit, the RI/FS Deadlines that shall be enforceable pursuant toparagraphs 28.1-28.5, and subject tothe stipulated civilpenalty provisions in paragraphs 29.1-29.5, are the dates established in theTechnical Program Plan for the following milestones: (a) Date for issuance ofa draft Technical Plan for aNew Product; (b) Date for issuance ofthe draft Product reports listed in paragraph 24.34; (c) Date for publication ofthe notice ofavailability ofthe RI/FS Report pursuant to paragraph 24.63. (v) Extension ofIRA, RIJFS. Supplemental Response Action. Design and Implementation Deadlines 26.8 A Deadline shall be extended uponreceipt ofatimely request for extension pursuant to paragraph 26.9 and whengood cause exists for such extension as provided in paragraphs 26.10 and 26.11.. 26.9 A request for extension ofaDeadline shallbe submitted to each Organization inwriting and shall specify: (a) 'neDeadline which is sought tobe extended; (b) Ile length ofthe extension sought; (c) The good cause(s) for the extension; and (d) Any related Deadline which would be affected ifthe extension were granted.

63 -26.10 Good cause exists for an extension ofaDeadline where the extension is sought because of: (a) An event ofForce Majeure-, (b) A delay caused by any Organization other than the Organization seeking the extension to meet any Schedule or any other Deadline; (c) A delay caused by the invocation ofDispute Resolution or the initiation ofjudicial action; (d) A delay caused, or which is likely to be caused, by the grant ofan extension ofanother Deadline or the extension ofa Schedule. 26.11 Any other event or series ofevents shall constitute good cause ifall the Organizations so agree or, absent such agreement, ifthe determination resulting from Dispute Resolution is that good cause exists. 26.12 Within seven days ofreceipt ofarequest for extension ofa Deadline in accordance with paragraph 26.9, each Organization shall advise the others inwriting of theirrespective positions on the request for extension. The failure ofany Organization to respond within the seven-day period shall be deemed to constitute concurrence in the request for extension. Ifan Organization does not concur in the requested extension, it shall include in its statement ofnonconcurrence a full explanation ofall bases for its position. 26.13 Ifthere isunanimous agreement among the Organizations that the requested extension is warranted, the Lead Agency shall extend the affected Deadline accordingly. Each such extension ofa Deadline shall be appended to the Technical Program Plan. 26.14 Ifthere is not unanimous agreement among the Organizations as to whether all or a portion ofthe requested extension iswarranted, theDeadline atissue shall not be extended except in accordance with a determination resulting from Dispute Resolution. Any Organization may raise such a dispute to Dispute Resolution. 26.15 Within seven days ofthereceipt ofone or more statements of
nonconcurrence in the requested extension, an Organization which seeks the extension ofthe Deadline may invoke Dispute Resolution. Upon the conclusion ofDispute Resolution, the Lead Agency shall implement the decision resulting from Dispute Resolution. Each such extension ofa deadline shall be appended by the Lead Agency tothe Technical Program Plan. 26.16 A timely request for an extension ofaDeadline shall toll any application forjudicial enforcement ofthe affected Deadline until a decision onwhether to allow

-64-the extension is reached bv unanimous agreement or through Dispute Resolution. Following extension ofa beadline, application forjudicial enforcement may only be sought to compel compliance with the Deadline as most recently extended. (v) Schedules and Extensions Thereo 26.17 Schedules, including timetables and deadlines for issuance ofSubproduct reports, shall be as established in this Agreement and the Technical Program Plan. 26.18 The RMA Committee, upon unanimous agreement ofthe Organizations~ and while endeavoring to avoid any extensions which may impact RI/FS Deadlines--may extend any Schedule at the request ofan Organization. In the event that such request is disputed by an Organization, the matter shall be resolved byDispute Resolution.
XXVIL FORCE MAJEURE 27.1 Ifthe Army or Shell is rendered unable, wholly or in part, by Force Majeure to carry out its obligations under this Agreement orthe Settlement Agreement, then upon that Organization's giving written notice asprovided in paragraph 27.3, the obligations ofthat Organization, so far as they are affected by the event ofForce Majeure therein specified, shall be suspended during the continuance ofsuch cause, but for no longer period, and such cause shall be remedied so far as possible with all reasonable dispatch. 27.2 The settlement ofa strike or other labor dispute shall be entirely within the discretion ofthe Orgarýzation involved with such strike or labor dispute and the requirement that any event ofForce Majeure shallbe remedied with all reasonable dispatch shall not require the settlement ofa strike orlabor dispute by acceding tothe demands ofthe opposing partywhen such course is inadvisable inthe discretion ofthe Organization involved with such strike or labor dispute. 27.3 When circumstances are occurring orhave occurred thatdelay the completion ofany obligation, and the Army or Shefl believes such circumstances constitute an event ofForce Majeure, such Organization shall notify the other Organizations in writing within 15 days after the notifying Organization obtains information indicating that a delay will occur. Such notice shall include a detailed explanation ofthe reason(s) for and anticipated duration ofthe delay, the measures taken and to be taken toprevent or minimize the delay, and a schedule for implementation ofsuch measures. Failure to provide such notice in accordance with this paragraph within therequired 15-day period shall constitute awaiver ofany claim of Force Majeure with respect to any event ofForce Majeure forwhich notice was not timely given. 27.4 Ifthe Organizations cannot agree whether a delay is orwas attributable to'
an event ofForce Majeure, any Organization may invoke Dispute Resolution.

65 -XXVIII. ENFORCEABILITY 28.1 Upon the effective date ofthis Agreement: (a) Deadlines, including Deadlines resulting from an extension granted in accordance withparagraphs 26.17-26.18, and any standard, regulation, condition, requirement or order which has become effective under CERCLA and is incorporated into this Agreement are enforceable by any person pursuant to Section 310 ofCERCLA and any violation of such Deadline or standard, regulation, condition, requirement or orderwill be subject to civil penalities under 310(c) and 109 ofCERCLA 42 U.S.C. SS 9659(c) and 9609; rdie- -3ec-t. (b) All terms and conditions ofthis Agreement which relate to remedial actions and all work associated with remedial actions shall be enforceable by any person to the extent permitted under Section 310 ofCERCLA, and any violation ofsuch terms and conditions will be subject to civil penalties under Sections 310(c) and 109 of CERCLA, 42 U.S.C. §§ 9659(c) and 9609; (c) Any final resolution ofa disputepursuant to Section XXX ofthis Agreement which estabiishes a term, condition or Deadline shall be enforceable by any person tothe extent permitted by Section 310of CERCLA, and any violation ofsuch term, condition or Deadline will be subject tocivil penalties under Sections 310(c) and 109 ofCERCLA, 42 U.S.C. §§ 9659(c) and 9609. 28.2 Any such action shall be subject to therequirements ofSection 310(d) and (e), 42 U.S.C. § 9659(d) and (e). All provisions ofthisAgreement may be enforced by any Signatory without the need to comply with the notice requirements ofSection 310of CERCL.A. Deadlines are subject to stipulated civil penalties, in accordance with CERCLA Section 109, 42 U.S.C. § 9609, in the amounts specified in paragraph 29.2.
28.3 In any enforcement action brought against Shell pursuant to paragraph 28.1, Shell reserves the right to challenge the legality ofsuch action consistent with the terms and conditions ofthis Agreement. Shellfurther reserves all rights and defenses that it may have to the enforcement ofthis Agreement pursuant to paragraph 28.1. 28.4 To the extent that a Lead Party other than the Lead Agency or the proponent ofaNew Product or Subproduct, fails to meet aDeadline, that Lead Party or proponent ofa New Product or Subproduct shall be subject tostipulated civil penalties
as specified in Section XXIX 28.5 EPA's request for payment ofa stipulated civil penalty, as provided in paragraph 29.1, shall constitute commencement and diligent prosecution ofan action within the meaning ofCERCLA Section 310(d)(2), 42, U.S.C. S9659(d)(2).

-66 -28.6 With the exception of EPA's right to request stipulated penalties from Shell or the Army pursuant to paragraph 29.1, the Organizations may only enforce the terms and conditions ofthis Agreement by bringing an appropriate action before the Court in accordance with Section XXXIX. 28.7 Nothing in this Agreement shall be construed to authorize any person to seekjudicial review ofany action ofan Organization where such review is barred by any provision ofCERCLA, including Section 113(h) ofCERCLA, 42 U.S.C. § 9613(h). XXIX. STIPULATED CIVIL PENALTIES Promptly upon determining that an Organization has failed to meet an Deadline, EPA shall so notify that Organization in writing. Ifthe Deadline in question is not already subject to Dispute Resolution at the time such notice isreceived, the Organization shall have 10 days after receipt ofthe notice toinvoke Dispute Resolution. Failure ofan Organization to invoke Dispute Resolution by the end ofthis 10-day period shall forfeit that Organization's right to object to thepayment ofstipulated civil penalties for failure to meet the Deadline in question. Following completion ofDispute Resolution, Shell may seekjudicial review ofEPA's determination pursuant to paragraph 30.7. 29.2) An Organization that fails to meet a Deadline shall pay EPAupon request the following stipulated civil penalties for each failure: (a) For adelay ofone week orpart thereof, atotal of$5,000; and (b) For adelay ofmore than one week, $10,000 for each additional week orpart thereof. '79.3 EPA shall not request payment ofstipulated penalties for failure to meet a Deadline until the later of: (a) The date ofcompletion ofthe action thatis subject to the Deadline; or (b) The date ofcompletion ofDispute Resolution orjudicial review concerning theDeadline. 29.4 Except as otherwise determined through Dispute Resolution orjudicial review, the date onwhich stipulated civil penalties shall begin to accrue shall be the date specified in the notice sentby EPApursuant to paragraph 29.1, but in no event earlier than the Deadline in question.

-67-29.5 Stipulated civil penalties shall be payable tothe "Hazardous Substance Response Trust Fund" and transmitted to: U.S. Environmental Protection Agency Superfund Accounting P.O. Box 317003M Pittsburgh, Pennsylvania 15251 Attn: Collection Officer for Superfund Accounting A copy ofthe transmittal shall be sent toEPA's designated RMA Committee representative. 29.6 Subject to paragraph 28.4, the payment ofa stipulated civil penalty in accordance with this Agreement does not preclude invocation ofany other remedy or sanction available pursuant to CERCLA for noncompliance with aprovision ofthis Agreement. 29.7 'Me Lead Agency or Lead Party shall not be liable for any stipulated civil penalties, or be subject to any other penalty or sanction available pursuant to CERCLA ifit can demonstrate that: (a) It in fact met the Deadline in question; (b) It in fact met the Deadline in question, as extended pursuant to paragraphs 26.8-26.18; or (c) Good cause existed for an extension ofthe Deadline in question and application for such extension was timely made. '2

9.8 Nothing in this Agreement shall be construed to render any officer, agent, employee, or servant ofany Signatorypersonally liable for the payment ofany stipulated civil penalty hereunder. XXX DISPUTE-RESOLUTION 30.1 For any dispute that is subject to Dispute Resolution pursuant to this Agreement, the Organizations shall make a good faith effort to resolve the dispute informally atthe RMA Committee level. Ifthe dispute cannot be resolved informally at the RMA ConurLittee level, the decision ofthe Lead Agency shall be implemented unless an Organization initiates Dispute Resolution pursuant tothe following paragraph. 30.2 To initiate Dispute Resolution, an Organization (orDOI for matters addressed in paragraph 8.4 and matters, including without limitation, species designated as threatened or endangered pursuant to the Endangered Species Act, 16 U.S.C. § 1531

-68-et se!Q., migratory birds or actions that will significantly affect biota at the Arsenal) shall advise the RIMAýCommittee members ofits intent to invoke Dispute Resolution and shall give written notice to the RNIA Council members ofthe dispute. The notice shall include an identification ofany activities that the Organization believes are affected by tile dispute and therefore should not proceed during Dispute Resolution. Ifthere is disagreement over which activities should or should not proceed during Dispute Resolution, that question shall also be subject to Dispute Resolution and shall be the first issue addressed during Dispute Resolution. Upon receipt ofsuch notice, the RMA Council shall make best efforts to resolve the dispute within the following 14 days. Promptly upon the conclusion ofany RMA Council meeting at which a dispute is resolved by unanimous agreement ýfthe voting members, EPA shall prepare and submit to the Organizations for their concurrence a written decision memorandum setting forth the decision and briefly explaining tile basis for the decision. The decision memorandum shall be included in the Adm=inistrative Record when all the Organizations have concurred that the decision memorandum accurately sets forth the decision and the basis for the decision. 30.3 Ifthe RMA Council does not resolve the dispute byunanimous agreement, the dispute shall be elevated to SAPC for resolution at the close ofthe RMACouncil's 14-day period. 30.4 Within 30 days ofarequest pursuant to the previous paragraph for SAPC to resolve a dispute, SAP(f shall meet and attempt to resolve the dispute. A dispute or policy issue shallbe considered resolved bythe SAPC only ifall the Organizations agree. Ifat the conclusion ofthe SAPC's 30-day resolution period the dispute has not been resolved, the position ofthe EPA Regional Administrator shall be implemented, unless the dispute is elevated toFRC pursuant to paragraph 30.5. Promptly upon the conclusion ofany SAPC meeting at which a dispute is resolved (eitherby the EPA Regional Adrrdnistrator or through unanýimous agreement ofthe voting members), EPA shall prepare and submit to the Organizations for their concurrence awritten decision memorandum setting forth the decision and briefly explaining the basis for the decision. The decision memorandum shall be included in the Administrative Record when all the Organizations have concurred that the decision memorandum accurately sets forth the decision and the basis for the decision. 30.5 A dispute that is not resolved by SAPC may be elevated to FRCupon the request ofany Organization (or DOI for matters addressed inparagraph 8.4 and matters, including without limitation, species designated as threatened orendangered pursuant to the Endangered Species Act, 16 U.S.C. § 1531 et se!Q., migratory birds or actions that will significantly affect migratory birds at theArsenal) by so notifying the other Organizations and the FRC members in writing within 5 days after the close of SAPC's 30-day resolution period. 30.6 Within 30 days ofthe elevation to FRCofa dispute, FRC shall meet and attempt to resolve the dispute. At the conclusion ofthe FRC's 30 day resolution period,

-69-iftile Army and EPA do not agree, then the position ofthe EPAAdministrator shall be the position ofthe United States. A matter shall be considered resolved by FRC only if all the Orimnizations concur in the resolution. Ifthe United States and all the Oreanizations do not concur, the decision ofthe United States shall be implemented. Promptly upon the conclusion ofany FRC meeting at which a dispute is resolved (either by the Administrator ofEPA or through unanimous agreement ofthe votin members), 9

. EPA shall prepare and submit to the Organizations for their concurrence a written decision memorandum setting forth the decision and briefly explaining the basis for the decision. The decision memorandum shall be included in the Administrative Record when all the Organizations have concurred that the decision memorandum accurately sets forth the decision and the basis for the decision. The duties ofthe Administrator of EPA in Dispute Resolution shall not be delegated. 330.7 In anyjudicial action brought pursuant to this Agreement, except for an action to enforce a provision ofthis Agreement, Shell and the State may only raise issues that had been previously addressed by FRC, or issues that bear a substantial and material relation to such issues. In any suchjudicial proceeding, except for an action to enforce any provision ofthis Agreement, Shell and the State may only raise issues that had been previously addressed by the FRC, or issues that bear a material and substantial relation to such issues. Shell and the State may only raise an issue referred to in the previous sentence in ajudicial challenge to therelevant ROD or IRA Decision Document, with the following exceptions (the timing ofwhich shall be governed by paragraph 39.2): (a) ajudicial proceeding that solely addresses Shell'sobligations topay Tenalties; (b) ajudicial proceeding to enforce thisAgreement or aproceeding inwhich

other remedies or sanctions are sought against Shell forviolating this Agreement; or (c) a dispute relating tothe design or implementation ofa Response Action which arises after the relevant ROD or IRA Decision Document has been finalized. Shell may commence ajudicial proceeding to challenge a determination byEPA pursuant to paragraph 29.1 that Shell failed to meet a Deadline, provided that Shell had invoked Dispute Resolution with respect to such determination. Shell maycommence such an action not later than 10days after completion ofDispute Resolution. Shell may seek judicial review ofany other remedy or sanction sought by any person for noncompliance with this Agreement not later than 15 days after the date such remedy or sanction is sought. 30.8 The pendency ofany dispute before the RMA Council, SAPC orFRC shall not affect the responsibility ofany Organization to continue its involvement in the assessment and selection ofFinal Response Actions that are not subject to such dispute or are not materially and substantially related to such dispute. 30.9 Statements made in the course ofDispute Resolution or a meeting ofthe RMA Council, the SAPC or the FRCand documents prepared solely foruse in Dispute Resolution, (excluding decision memoranda prepared byEPA, and concurred in bythe Organizations, upon the conclusion ofDispute Resolution meetings), shall be considered statements made, and documents prepared, in furtherance ofsettlement and shall be

-70-entitled it) the protection afforded such statements and documents by the Federal Rules ofEvidence and the Colorado Rules ofEvidence. Persons who participate in Dispute Resolution meetings shall not be subject to deposition or to other discovery concerning statements made during, in preparation for, and in connection with such meetings. 30.10 The State's right to participate as an Organization in Dispute Resolution is subject to the following conditions: (a) The State may attend meetings ofthe RMA Council, the SAPC, and tile FRC only after it has agreeý in writing (i) to be bound by the provisions of Exhibit C tothis Agreement; and (ii) to treat as highly confidential, and not topublish, divulge, disclose, or make known in any manner orto any extent not authorized or required by law, any Confidential Information received by ormade available to it in connection with any activities performed pursuant tothis Agreement; and (b) The State may invoke Dispute Resolution only after it has agreed to be bound by the Dispute.Resolution process, as evidenced by its execution ofthe agreement attached hereto as Exhibit C. The form attached as Exhibit C shall be replaced by anexecuted copy ofthat agreement, once ithas been executed by all parties thereto. 30.11 If, pursuant to paragraph 42.7, Dispute Resolution is invoked with respect to the draft Natural Resource Damage Assessment Plan, such dispute shall be resolved in accordance with the Dispute Resolution provisions in paragraphs 30.1-30.7, with the following exceptions: (a) '17he State shall not participate in Dispute Resolution on this issue at any level; (b) In addition to the Army,EPA and Shell RMA Council members, tile Regional Director ofthe United States Fish and Wildlife Service, Region 6, shall participate as a full voting member ofthe RMA Council; (c) Ifthe dispute is raised to the SAPC, the Director ofthe United States Fish and Wildlife Service (in addition to the Army, EPA and Shell members of tile SAPQ shall participate as afull voting member ofthe SAPC; (d) Ifthe dispute is raised to the FRC,the Assistant Secretary ofthe Interior forFish, Wildlife and Parks shall participate as a full voting member ofthe FRC, and the Administrator ofEPA and the Governor ofColorado shall not participate; and (e) Ifthe dispute is not resolved bythe FRC, it shall,within 45 days of tile close ofthe FRC's Dispute Resolution period, be resolved by agreement ofthe Secretary ofthe Army and the Secretary ofthe Interior.

-71 -XXXT. CONTENTS OF ADMINISTRATIVE RECORD FOR EACH ROD, CUSTODIAN AND JARDF (i) Contents ofthe Administrative Record for the On-Post ROD 31.1 Forthe On-Post ROD, the Administrative Record shall consist at a minimum ofcomplete copies ofthe following as well as any other relevant documents: (a) Pre-Plan RlIFS Activi1y (i) RI/FS documents from January 1983 until the issuance of the Technical Program Plan, including reports for On-Going Products or Subproducts which are designated in the Technical Program Plan as being substantially completed, drafts ofTechnical Plans, draft Product or Subproduct reports, publications listed in the bibliography ofeach Technical Plan or Product orSubproduct report which are not available to the general public (including damage assessment reports), written comments upon any drafts (including comments ofDOI), minutes ofmeetings prepared by or furnisheý to the Army, Army's written responses to comments, final Product or Subproduct reports, final reports and any amendments ofthem, the December 6, 1982 Memorandum ofAgreement with committee charters, summaries ofany information in these documents which is subject to the attorney-client privilege orworkproduct exemption, Other Deliverables, comments thereon, and other documents submitted pursuant toparagraph 31.3. (b) Other Documents Governing the RIIFS Process (ii) This Agreement; (iii) The Settlement Agreement; (iv) The proposed consent decree filedwith the Court on February 1, 1988 (including the version ofthe RI/FS Process Document filed onthat date); (v) The proposed modified consent decree filed withthe Court onJune 7, 1988 (including the version ofthe RI/FS Process Document filed on that date); (c) NTL Lis (vi) Each proposed and final notice published in the Federal Register concerning NPL listings ofthe Arsenal, all written comments upon them with

-72-EPA's responses and any other materials included by EPA in its record for NPL listings ofthe Arsenal; (d) The RIJFS Plan (vii) The meeting agendas for the RI/FS Review Study Group, draft Technical Program Plan, comments on draft Technical Program Plan, Army's responses to comments, draft final Technical Program Plan submitted to SAPC, any approvals or other documents issued by SAPC or FRC onfinal Technical Program Plan; (viii) Directives issued with respect to the implementation of the Technical Program Plan; (e) IRAs (Lx) Relevant documents concerning IRAs, including the Basin F Memorandum ofUnderstanding, IRA assessments, IRA Decision Documents, IRA Implementation Documents, any written requests invoking Dispute Resolution, any documents requested by or submitted to SAPC, and documents issued by SAPC or FRC
on the IRAs. (f) Products. Subproducts and Other Deliverables (x) Technical Plans for Products orSubproducts, including written conununications concerning the development ofeach Technical Plan,draft Technical Plans, written comments onthem (including comments ofATSDR and DOI), draft final Technical Plans forNew Products or Subproducm Army's written responses to the comments, any written requests invoking Dispute Resolution, any documents requested by or submitted to SAPC, any documents issued bySAPC or FRC onthe Technical Plans, final Technical Plans for New Products or Subproducts; (xi) Publications or documents identified in thebibliography of each final Product or Subproduct report or Other Deliverable that are not available to the general public (i.e., guidance documents and technical sources)(documents identified in report bibliographies that are available tothe general public shallbe considered part ofthe Administrative Record, but need not be physically located in the JARDF); (xii) QA'd/QCd sampling and test data or "raw"data, where provided in accordance with subparagraph 21.1(e)(ii)(related chain ofcustody forms shall be pan ofthe Administrative Record and shallbe made available upon request, but need not be physically located at the JARDF); I(xiii) Quality Assurance Program Plan,with audit reports, written comments and written responses to comments;

-73-(xiv) Reports for Products and Subproducts, including written submissions of the United States, Army, EPA, Shell and the State identifying potential ARARs for consideration; written comments on draft reports for Products or Subproducts (including comments ofATSDR and DOI); draft final reports for Products, Army's written responses to the comments; any written requests invoking Dispute Resolution; anv documents requested by or subn-dtted to SAPC; any documents issued by SAPC or FkC on the Products; final Product reports; any written request to modify any Products; any document reflecting action by the RMA Committee, SAPC or FRC on the request for modification; any document consisting ofor addressing an Other Deliverable-,and any document reflecting a modification ofthe Products: (xv) Any documents transmitted by ATSDR or DOI to the RMA Committee; (xvi) Other documents submitted by or relating to the involvement ofATSDR, DOI, EPA, Shell and State in the RI/FS process; (g) RI.JFS Report for Each ROD (xvii) Draft RI/FS Report, with preferred alternative; (xviii) Public notice of availability ofRI/FS Report with brief analysis (including all fact sheets and other documents made available to the public which summarize the various feasibility study alternatives and the preferred alternative); (xLx) Written public comments received on the RI/FS Report (including comments from EPA, Shell and the State); (xx) Transcript ofeach public meeting held for the purpose of receiving comments on the RI/FS Report; (xxi) Documentation ofparticipation by the TRC,RMA Committee and RMA Council; (h) SAJ!C or FRC Activities (xxii) Notices ofSAPC and FRC meetings; (xxiii) Written decisions issued by SAPC or FRC; (xxiv) Other documents generated by or for SAPC or FRC;

-74 -(i) RMA Committee Activities (xxv) Notices ofRINIA Committee meetings, any written decision oenerated bv or for the RNIA Com-mittee and any other documents generated by the RMA Committee or any subcommittee thereof-, RMA Council Activities (xxvi) Notices ofRMA Council meetings, anywritten decision issued by the RIMA Council, and any other documents generated by or for the RMA Council-, (k) JARQFCActivities (xxvii) Notices ofJARDFC meetings and any written document issued by JARDFC; (1) TRQ Activities (xxiii) Notices ofTRC meetings and documents distributed to the TRC; 

### (m) Local Governments' Involvement (xxix) Record ofallcommunications with and information provided to local govermment officialswith respect tothe RI/FS;, (n) Interagency Agreements (xxx) Any interagency agreements, including agreements with Corps ofEngineers, DOI, etc. (o) Executive Orders (xxxi) Executive Orders 12580 and 12316; (p) Deadlines (xxxii) Deadlines, each request for extension ofDeadlines,-action 

### on these requests by the RMA Committee, the RMACouncil, SAPC or FRC,any notice ofviolationofa Deadline andany civilpenalty assessment;

75 -

### (q) ROD (xxxiii) Draft ROD (with appendLx ofproposed ARARs), written comments ondraft ROD, Army's written response tocomments, draft final ROD, any written requests invoking Dispute Resolution, any documents requested by orsubmitted to SAPC,any documents issued by SAPCor FRCon the draft final ROD,with any amendments ofthe ROD required by SAPCor FRC; (vWv) Final ROD; (xxxv) Notice ofUnited States to Stateofopportunity toconcur or not concur in the selected Final Response Action for the On-Post Operable Unit; (xxxvi) The State'swritten concurrence or nonconcurrence in the selected Final Response Action forthe On-Post Operable Unit; (xxxvii) All public notices oftheissuance ofthe ROD (including fact sheets and other documents made available to thepublicwhich describe the1inal Response Action selected); (xxxviii) Any subsequent modifications oftheROD; and (r) Other Documents (xxxix) Other documents transmitted to orfromthe Armyor EPA concerning the RI/FS; (s) Index (xl) Index ofcontents oftheAdministrative Record. (ii) Contents ofAdministrative Recordsjor ROM for Other Operable Units and IRAs 31.2 ForROM forother Operable Units, theAdministrative Record shall consist ofcomplete copies ofsuch documents astheJARDFC maydesignate, as providedin paragraphs 31.5 and31.6, not inconsistent with CERCLA and the NCPand pertinent guidance issued byEPA thatis notinconsistent withCERCLA and theNCP. Prior to the effective dateofthisAgreement, the February 1,1988,and June7, 1988, proposed consent decrees governed the contentsofthe Administrative Records forIRA proposed Decision Documents. This Section shall control the contents ofthe Administrative Records for IRAproposed Decision Documents issued after the effective date ofthis Agreement.

76-(iii) Supplementation ofAdministrative Record for On-Post ROD 31.3 For aperiod of90 days after the effective date ofthis Agreement, any Organization may submit a list identifying any documents prepared between January 1, 1983, and the effective date ofthis Agreement for inclusion in the Administrative Record for the On-Post ROD. Promptly afterreceipt ofnotice from the Army identifying those listed documents that would not otherwise be included in the Administrative Record, the Organization that submitted the list shall promptly transmit to the Army copies ofsuch documents for inclusion in the Administrative Record. During this period, the Army may decline to include inthis Administrative Record documents proffered by anOrganization onlyon the grounds that such documents were not previously received orgenerated by the Army, orare irrelevant to the Administrative Record for the ROD. The Army may not refuse to include in the Administrative Record during the 90-day period any documents which are otherwise appropriate for inclusion in the Adn-dnistrative Record on the grounds that they were improperly transmitted outside ofofficial channels, except where the documents were not transmitted by or toindividuals acting within the scope oftheir official employment. (iv) Custodian ofAdministrative Records 31.4 Within 30 days ofthe effective date ofthis Agreement, the Army shall designate a Custodian ofthe Administrative Records. Tle Custodian shall be responsible for maintaining on a contemporaneous basis theAdministrative Record for each ROD and each IRA Decision Document and forpreserving in a separate area of the JARDF all documents designated in accordance with Paragraphs 21.1(f), 21.2 and 21.3. (v) Joint Administrative Record and DocuMent Facilily Committee 31.5 Promptly after signing this Agreement, the Organizations.shall each designate a representative to serve onthe JARDFC. The JARDFC shall be chaired by the Custodian. The JARDFC shall meet periodically in an effort to reach aconsensus (to the maximum extent practicable) on the contents ofthe Administrative Record for each ROD and each IRA Decision Document. Tle JARDFC shall take steps to ensure that documents preserved in accordance with paragraphs 21.1(f), 21.2 and 21.3 are kept to the rninimum necessary in the opinion oftheUnited States, and are preserved at the JARDF in a secure, cost-effective and space minimizing manner. 31.6 Disputes concerning the documents tobe preserved pursuant to paragraphs 21.1(0, 21.2 and 21.3 which cannot be resolved with30 days bythe JARDFC shall be referred to the RMA Council for resolution. In the event that the dispute cannot be resolved bythe RMA Council in45 days, the dispute shallbe raised by any Organization to Dispute Resolution or shall bedeemed to be waived.

.77-(vi) Challenges to Administrative Record 31.7 Any Organization may Support or oppose a proposal by another Oreanization to include any document in the Administrative Record. The only challenge whTch a Signatory may make in anyjudicial proceeding with respect to the contents of an Adn-iinistrative Record is that one or more documents which was clearly submitted and identified in writing to the Army and which belongs in that Administrative Record, was improperly rejected for inclusion in that Administrative Record. (vii) Joint Administrative Record and Document Facilily ("JARDF')
31.8 The Administrative Records for the RODs and IRA Decision Documents, and all documents preserved in accordance with paragraphs 21.1(f), 21.2 and 21.3, shall be maintained at a records facility to be known as the JARDF, which shall be located at or near the Arsenal and shall be open for inspection and copying by representatives ofthe Organizations, the TRC and the public during reasonable office hours.
XXXII. COMMUNITY RELATIONS
32.1 The Signatories shall coordinate any statements to the press with respect to this Agreement or any aspect ofthe process set forth in this Agreement. Each Signatory shall inform the other Signatories ofthe terms ofany such press release prior to issuance. 32.2 Ile Signatories agree to comply with all relevant EPA policy and guidance on community relations programs which are in accordance with CERCLA and consistent with the NCP.
XXXIII. ASSESSMENT AND SELEC-nON OF SUPPLEMENTAL RESPONSE ACTIONS 33.1 The Parties recognize that subsequent to Finalization ofthe RODs for the On-Post and Off-Post Operable Units, a need may arise for one or more Supplemental Response Actions to remedy continuing or additional releases or threats ofreleases ofhazardous substances, pollutants or contamýinants at or from the Arsenal. Ifsuch a release or threat ofrelease presents an immediate threat to human health or the environment, it shaH be addressed pursuant to Section XMIL Ifsuch release or threat ofrelease does not present an inunediate threat to human health or the envirorunent, it shall be addressed pursuant to paragraphs 33.2-33.7, regardless of whether the determination ofthe need for such Supplemental Response Action is based
on a Periodic Review conducted pursuant to Section XXXVI hereofor on some other
source ofinformation.

-78-33.2 A Supplemental Response Action shall be undertaken only (a) ifit is determined that as a result ofthe release or threat ofrelease ofahazardous substance, pollutant or contaminant at or from the Arsenal an additional Response Action is necessary and appropriate to assure the protection ofhuman health and the environment and (b) ifeither:(i) For Supplemental Response Actions proposed after Finalization ofthe ROM for the On-Post and Off-Post Operable Unýits, but prior to EPA Certification, the determination is based on conditions that were unknown at the time of Finalization ofthe ROD or based oninformation received inwhole or in part by EPA following Finalization ofthe ROD; or (ii) For Supplemental Response Actions proposed after EPA Certification, the determination is based on conditions thatwere unknown at the time of EPA Certification or based on information received in whole or in part by EPA following EPA Certification. 33.3 If, after Finalization ofthe RODs for the On-Post and Off-Post Operable Units, any Organization orDOI concludes thata Supplemental Response Action is necessary, based on the criteria setforth in paragraph 33.2, such Organization or DOI may promptly notify the others ofits conclusion inwriting. The members ofthe RMA Committee shall confer and attempt to reach consensus on the need for such an action within 45 days ofthe receipt ofsuch notice. Ifwithin that 45-day period the RMA Committee has failed to reach unanimous agreement, any Organization (or DOI, subject to paragraph 30.2) may notify the other Organizations inwriting that itintends to invoke Dispute Resolution. Ifthe RMA Committee is still unable to reach consensus within 14 days ofthe issuance ofsuch notice, the question oftheneed for the Supplemental Response Action shall be resolved through Dispute Resolution. 33.4 Ifthe RMA committee agrees or ifit is determined through Dispute Resolution that a Supplemental Response Action is needed based on the criteria set forth in paragraph 33.2, the Lead Agency shall prepare a draft Supplemental Response Action Plan that shall include Supplemental Response Action Deadlines. Supplemental RI/FS Deadlines may be extended only pursuant to Section XXVI. The Lead Agency shall provide the draft Supplemental Response Action Plan to the other Organizations and DOI. Ile other Organizations and DOI shall have 30 days in which to comment. The Lead Agency shall respond to those comments within30 days after close ofthe comment period. Any Organization (or DOI, subject to paragraph 30.2) may then invoke Dispute Resolution to resolve a dispute with respect to the Supplemental. Response Action Plan. After any disagreements with respect to the Supplemental Response Action Planhave been resolved, the Lead Agency shall submit the Supplemental RI/FS Deadlines as an exhibit to theTechnical Program Plan.
33.5 After any disputes with respect to aSupplemental Response Action Plan have been resolved, the Lead Agency shall conduct a Supplemental RI/FS and

-79-issue a Supplemental ROD in accordance-with the Supplemental Response Action Plan. The provisions in the RI/FS Process Document shall govern the planning and selection ofSupplemental Response Actions to the same extent they govern the Dianning and selection ofFinal Response Actions, unless it is the unanimous agreemýnt ofthe Organizations that aparticular provision does not apply. The Supplemental ROD shall include Design Deadlines that shall govern completion ofthe design work for the Supplemental Response Action. 33.6 Following issuance ofthe Supplemental Response Action ROD, the Supplemental Response Action shall be implemented pursuant to that ROD and Section XXXIV. 33.7 Shell shall have the opportunity to participate in the assessment, selection, design and implementation ofa Supplemental Response Action as provided in Section XYXVI. X,)CXIV. DESIGN AN-D--fMPLEMENTATION OF FINAL AND SUPPLEME T I RESPONSE ACTIONS (i) Response Action .- Covered ByThis-S-mion 34.1 Paragraphs 34.2-34.24 shall govern design andimplementation ofthe following Response Actions: the Final Response Action for the On-Post Operable Unit' the Final Response Action for the Off-Post Operable Unit, the Final Response Action for any other Operable Unit that may be designated for the Site, and any Supplemental Response Actions selected pursuant to Section XXXIII. (ii) Design and-Imple entation Deadlines 34.2 (a) Promptly upon Finalization ofany ROD that was not the subject ofjudicial review, the United States shall append as anexhibit to the ROD and transmit to the other Organizations the Design Deadlines for that ROD. IfaROD is subject to judicial review, 45 days after submittal ofthe ROD tothe Court in accordance with paragraph 25.11, the United States shall submit tothe Court as an exhibit those Design Deadlines applicable to portions ofthe ROD, ifany,that are not subject tojudicial review. At the conclusion ofthejudicial review ofany ROD, the United States shall submit to the Court as an exhibit to the ROD those Design Deadlines applicable to any portion ofthe ROD thatwas the subject ofjudicial review. Once Design Deadlines have been properly appended to the ROD or submitted to the Court pursuant to-this paragraph, theyshall be subject to stipulated civil penalties pursuant to Section XXIX, and may be extended onlypursuant toparagraph 34.22. (b) Promptly upon issuance ofaFinal Design Document, the United States shall append as an exhibit to the ROD and transmit to the other Orgaruzations a list ofthe Implementation Deadlines that are set forth in the Final Design Document.

-80-Implementation Deadlines shall be subject to stipulated penalties pursuant to Section XXIX and may be extended only pursuant to paragraph 34.22. (iii) Role ofthe RMA Committee and the RMA Council 34.3 The RMA Conunittee shall oversee the day-to-day progress ofthe design and implementation ofFinal and Supplemental Response Actions. Promptly upon issuance ofa ROD that addresses such a Response Action, the Lead Agency for the Response Action shall designate an employee who shall serve as the Coordinator for the design and implementation ofthat Response Action. The Coordinator may be the same person who served as the Coordinator for the development ofthe ROD. The Coordinator shall be responsible on a dailybasis for ensuring that the Lead Agency's design and implementation ofthe Response Action is in accordance with the ROD and the terms ofthis Agreement. 34.4 Promptly upon issuance ofa ROD,the Organizations shall each designate an employee to serve as its representative on the RMA Committee. Each such representative shall be responsible on adaily basis forensuring his or her respective entity's fulfillment ofits responsibilities regarding the design and implementation ofthe Response Action in accordance with the terms ofthe ROD and this Agreement. This representative may be the same person who served as the representative on the RNIA Committee duringdevelopment ofthe ROD. DOI may attend and participate in RMA Committee meetings. 34.5 Except for communications between counsel, the Organizations shall transmit all written communications between each otherwith respect to the design and implementation ofa Final or Supplemental Response Action as provided in Section XXXVIL 34.6 The RMA Committee shall meet approximately once each month. Although the Lead Party for a Response Action shall have primary responsibility for meeting applicable Design Deadlines and Implementation Deadlines, the RMA Committee shall endeavor to assist inthis effort by setting completion dates fordesign and implementation tasks, reviewing the progress ofthese tasks, attempting to resolve disputes informally, making necessary and appropriate adjustments to schedules, advising the SAPCwhenever aDeadline cannot be attained, andrecommending, ifwarranted, that a Deadline be extended, asprovided in paragraph 34.22. 34.7 Tle RMA Council shall oversee the design and implementation of Response Actions and review the work oftheRMA Committee. Promptly upon issuance ofaROD that addresses a Final or Supplemental Response Action, the Organizations shall each designate an employee to serve on the RMA Council forthe purpose ofoverseeing the design and implementation ofthe Response Action addressed in that ROD. Such employee may be the same person who served on the RMA Council during development ofthe ROD. The designee ofthe Lead Agency for the Response

-81 -Action shall serve as the chairman ofthe RMA Council for the purpose ofoverseeing the design and implementation ofthat Response Action. DOI may attend and participate in RMA Council meetings at which matters concerning biota at the Arsenal are addressed. 34.8 The chairman shall schedule regular meetings ofthe RMA Council approximately every 3 months, shall transmit to the other members and DOI a proposed agenda at least 20 days in advance ofeach meeting and shall transmit afinal agenda at least 10days in advance ofthe meeting which shall incorporate any additional matter that an RMA Council member requests be included. Regular meetings shall be for the purpose ofreviewing and commenting on the progress being made in the design and implementation ofthe Response Action. 34.9 Special meetings of the RMA Council shall be held atthe request of the chairman or any RMA Council member. As much notice for special meetings as is feasible under the circumstances shall be provided bythe chairman. (iv) Shell's Right to Participate as Lead Par1y 34.10 Shell shall have the opportunity toparticipate as Lead Party in the design or implementation, or both, ofall or portions ofFinal or Supplemental Response Actions pursuant to the terms ofthe Settlement Agreement, the terms ofthis Section and the terms ofany subsequent Consent Decree. When Shell assumes responsibility for any portion ofthe design or implementation ofa Response Actiom Shell shall keep the Lead Agency apprised ofits progress so thatthe Lead Agency maymonitor Shell's progress. Shell shall consult with the Lead Agency prior to taldng any significant action
over which Shell has assumed Lead Party responsibility.
34.11 When SheU has assumed Lead Partyresponsibility fordesign or implementation, orboth, ofall orportions ofaResponse Action, it shallbe subject to the stipulated penalty provisions set forth in Section X)GXwith respect to any Design and Implementation Deadlines that apply to the portions ofsuch Response Action for which Shell is responsible as Lead Party. Ile Lead Agency shall remain responsible for assuring that such Response Action otherwise comports with the ROD and this Agreement. (v) Design ofResponse Actions 34.12 The Lead Party responsible for desip ofa Response Action identified in aROD shaU designate a Project Manager who shall be responsible for development ofthe Design Scope ofWork, the Conceptual Design Document, and the Final Design Document for the Response Action.
34.13 Tle Project Manager shall submit a draft Desip Scope ofWork tothe RMA Committee and DOI for review and comment. The RMA Committee members

-82-shall meet to discuss the draft and attempt to reach unanimous agreement onits adequacy. At the request ofany Organization (or DOI, subject toparagraph 30.2), a dispute with respect to a draft Design Scope ofWork shall be subject to Dispute Resolution. The failure ofan Organization torequest Dispute Resolution with respect to such draft within 30 days ofthe RMA Committee's receipt ofthe draft scope ofwork shall constitute that Organization's concurrence in the Design Scope ofWork. 34.14 Upon unanimous agreement ofthe RMA.Committee members,or completion ofDispute Resolution ifinvoked, with respect to a draft Design Scope of Work, the Project Manager shall issue the document in final form and shall promptly begin the process ofdeveloping, or having developed under contract, the Conceptual Design Document. The Lead Party shall submit the Conceptual Design Document to the RMA Cortunittee for review and comment. The Project Manager shall be available to discuss with the other RMA Committee members the adequacy ofthe Conceptual Design Document. The Conceptual Design Document shall not be subject to Dispute Resolution. 34.15 The Final Design Document shall include Implementation Deadlines pursuant to which the Response Action addressed in the Final Design Document shall be conducted. The Project Manager shall submit the Final Design Document to the RMA Committee and DOI in draft form forreview and comment. The RMA Committee members shall meet and discuss the draft and attempt to reach unanimous agreement on the adequacy ofthe draft, including the Implementation Deadlines proposed in the draft. At the request ofany Organization (or DOI, subject to paragraph 30.2), any dispute withrespect to a draftFinal Design Document may be resolved pursuant to Dispute Resolution. The failure ofan Organization to request Dispute Resolution with respect to such draft within30 days ofthe RMA.Committee's receipt ofthe Final Design Document shall constitute that Organization's concurrence in the Final Design Document. 34.16 If,following RMA Committee review, the Organizations are unable to reach unanimous agreement with respect to a draft Design Scope ofWork or a draft Final Design Document, and either document isthe subject ofDispute Resolution, the Project Manager shall promptly modify the draft document asnecessary to reflect the outcome ofDispute Resolution and submit the modified document to the other organizations. Ifthe Organizations fail to agree unanimously that the modified document accurately reflects the outcome ofthe Dispute Resolution, any Organization may submit the issue to Dispute Resolution within ten days after receipt ofthe modified document. After the Organizations reach unanimous agreement, or, absent such agreement, after the time forinvoking Dispute Resolution has passed, theProject Manager shall issue the document in final form. 34.17 After the Final Design Document isissued in final form, theProject Manager shall promptly begin implementation oftheResponse Action addressed inthe Final Design Document.

-83 -(vi) Implementation ofResponse Actions 34.18 At the monthly meetings ofthe RMA Conunittee, Project Managers shall report on their progress in implementing Response Actions. During such meetings, it shall be the responsibility ofeach RMA Committee member to raise any objections he
or she may have %vith respect to the manner in which a Response Action is being implemented. In raising such an objection, an RMA Committee member shall indicate whether, and to what extent, he or she believes the activity is not being implemented in accordance with the applicable ROD, the Final Design Document, or this Agreement. The Project Manager shall be available to respond to such objections.
34.19 The RMA Committee shall attempt to resolve informally any dispute with respect to the manner inwhich a Response Action is being implemented or whether extension ofan Implementation Deadline should be granted. Any Organization (or DOT, subject to paragraph 30.2) may invoke Dispute Resolution to resolve a disagreement %vith respect to the implementation of a Response Action that cannot be resolved at the RMA Committee level. The only issues relating to implementation ofa Response Action that may be raised to Dispute Resolution are: (a) whether the Response Action is being implemented in accordance with the ROD, (b) whether the Response Action is being implemented in accordance with the applicable Final Design Document, (c) whether the Response Action is being implemented in accordance with the terms ofthis Agreement and (d) whether good cause exists for extending an Implementation Deadline. The failure ofan Organization toinvoke Dispute Resolution with respect to implementation ofa Response Action shall constitute such Organýization's acknowledgement that the Response Action is being properly__ implemented. 34.10 Subject to the following paragraph, ifDispute Resolution is invoked with respect to implementation ofa Response Action, the implementation ofthe Response Action sh" not continue until Dispute Resolution has been concluded. (vii) Right to Judicial Revie
34.21 Following completion ofDispute Resolution regarding either design or implementation ofa Response Action, Shell and the State shall have the right tojudicial review ofsuch issue in accordance with Section XXXIX Whether the design work or implementation activity that is subject tojudicial review maygo forward pending such review over the objection ofSbel] and the State shall be deternýdned by the Court in accordance with traditional principles governing injunctive actions. (viii) Extensions ofDeadlines
34.22 Design Deadlines and Implementation DeadUnes may be extended for good cause in accordance with the provisions ofparagraphs 26.8-26.18.

-84-(Lx) EPA Certification 34.23 When the Army determines that any Final or Supplemental Response Action forwhich it is the Lead Agency has been completed in accordance with the requirements ofthis Agreement, it shall so advise Shell, EPA and the State inwriting, and shall request from EPA certification that the Response Action has been completed in accordance with the requirements ofthis Agreement. Shell or the State may request in writing that the Army make such a determination and, unless the Army notifies Shell or the State inwriting within 30 days after receipt ofany such notice that the Army has made such a determination, Shell orthe State may submit the matter to Dispute Resolution within 14 days after the end ofthe 30-day period. Ifit is determined by Dispute Resolution that the Final or Supplemental Response Action has been completed in accordance with this Agreement, EPA shall promptly make such certification with respect to such Response Action. Ifthe Army's determination has not been subject to Dispute Resolution, within 90 days ofthe receipt ofarequest from the Army for EPA Certification, EPA shall advise the Army, Shell and the State in writingthat: (a) EPA certifies that the Response Action has been completed in accordance with this Agreement; or (b) EPA denies the Army's request for certification, stating infull the basis ofits denial. 34.24 IfEPA denies the Army's request for certification pursuant to paragraph 34.23(b), any Organization may invoke Dispute Resolution to review EPA's determination. IfEPA's denial ofcertification isupheld in Dispute Resolution, EPA shall describe the additional work needed to bringthe Response Action into compliance with the requirements ofthis Agreement. After performing such additional work, the Army shall resubmit a request for certification to EPA. EPA shall then grant or deny certification pursuant to the process set forth in thisparagraph and the previous paragraph. MON-AND MAINTENANCE OF RESPONSE ACTI XXXV. OPERA -ON STRUCT'URES AND MONITORING OF RESPQNSE ACTIONS
35.1 Priorto the effective date ofthis Agreement, the February 1,1988, and June 7, 1988,proposed consent decrees (and related exhibits) governed the operation and maintenance ofResponse Action Structures and the monitoring ofResponse Actions. On the effective date ofthis Agreement, this section shall control the operation and maintenance ofResponse Action Structures and the monitoring of Response Actions. The Organizations recognize tjhatoperation and maintenance of Response Action Structures, and monitoring the effectiveness ofResponse Actions, may be necessary for a period of30years or more. Shell mayparticipate in such operation, maintenance and monitoring in accordance with theprovisions this Section. Shell's

-85 -obligation to pay its share ofthe cost ofsuch activities shall be as set forth in the Settlement Agreement. 35.2 Any Organization shall have the right to inspect any Response Action Structure operated by another Organization for the purpose ofdetermining ifsuch Response Action Structure is being properly operated and maintained or ifsuch Response Action Structure is performing as specified in the Final Design Document. Such right ofinspection shall include the right offree access to such Response Action Structure at times convenient tothe Organization operating and maintaining the Response Action Structure. An Organization that intends to inspect a Response Action Structure operated and maintained by another Organization shall provide the other Organization with at least one-week priorwritten notice ofsuch intent.
35.3 The Organizations recognize that eventually the operation and maintenance ofResponse Action Structures atthe Arsenal may no longer be necessary for the protection ofhuman health and environment. When an Organization believes that operation and maintenance ofa Response Action Structure mayproperly be discontinued or substantially curtailed, that Organization may propose such cessation or curtailment in awritten notice tothe other Organizations at least 45 days before the date ofproposed cessation or curtailment. The notice shall describe the proposed cessation orcurtailment and explain why continued operation ormaintenance without substantial curtailment is no longer necessary to protect human health and the environment. 35.4 Operation and maintenance ofthe Response Action Structure may be discontinued or substantially curtailed ifall the Organizations so agree. Ifthe Organizations are unable to reach unanimous agreement on the proposed discontinuance

or curtailment within 45 days after receipt ofthe notice proposing discontinuance or curtailment, any Organization may elevate the proposal to Dispute Resolution. When there is a dispute with respect to aproposal to discontinue or substantially curtail the operation and maintenance ofa Response Action Structure, the operation and maintenance ofsuch Response Action Structure shall continue until the dispute is resolved. 35.5 Notwithstanding any other provision ofthis Agreement, Shell's obligation to operate or maintain a Response Action Structure, and its obligation to monitor the effectiveness ofResponse Action Structures, shallbe in accordance with this Agreement and contingent onthe Army's annual certification that funds will be available to reimburse Shell for the cost ofsuch activities to the extent that Shell will be entitled to such reimbursement pursuant to the Settlement Agreement. However, nothing in this paragraph shall be construed to relieve Shell ofany ofShell's obligations under this Agreement or the Settlement Agreement for the designated Shell-Only Response Actions in Exhibit D to the Settlement Agreement.

86 -35.6 It is the United States' long-term goal eventually to discontinue the use ofall groundwater pump-and-treat systems pursuant toparagraph 35.4 that further operation ofsuch Response Action Structures is no longer necessary toprotect human health and the environment. XXXVI. PERIODIC REVIEW 36.1 Subject to the paragraph 36.2, the United States shall conduct a Periodic Review ofany Final and Supplemental Response Action taken at the Site to determine whether and towhat extent any additional remedial action is necessary. The Periodic Review shall be conducted inaccordance with Section 121(c) ofCERCLA, 42 U.S.C. §9621(c), any pertinent regulation orguidance issued by EPA that is not inconsistent with CERCLA and the NCP. 36.2 The Periodic Review for each Operable Unit shall be conducted not less often than every five years after initiation ofthe Final Response Action for that Operable Unit, as long as hazardous substances, pollutants orcontaminants remain within the area covered by that Operable Unit. 36.3 The Periodic Review forthe On-Post Operable Unit and the Off-Post Operable Unit shall be conducted by the Army. The Periodic Review for any other Operable Unit included within the boundaries ofthe Site shall be conducted by the Lead Agency with responsibility for the Operable Unit. Priorto and during each Periodic Review, the Organization conducting the Periodic Review shall consult with the other Organizations concerning the proper scope and design ofthe review.
36.4 The assessment and selection ofany additional Response Action determined necessary in the course ofa Periodic Review shallbe in accordance with Section XXXIII. Except for Emergency Actions, which shall be governed by Section XXII, such Response Action shallbe implemented as a Supplemental Response Action in accordance with Section X)CIII. XXXVII. NO11FICAJ1ON 37.1 Except for communications between counsel, allwritten notices or other written commurlications contemplated in this Agreement shall be deemed tohave been duly givenwhen personally delivered to the appropriate individuals indicated below or when actually received ifsent bytelefax, express delivery service with charges prepaid,
or the United States Postal Service with postage prepaid to the address and individual indicated below for the Organization intended:

.87-Ifto the Army: Program Manager Office ofthe Program Manager,

RMA Contamination Cleanup Aberdeen Proving Ground,

Maryland 21010-5401 Attention: AMXRM-PM with copies to: Deputy Program Manager RNLA Contamination Cleanup Rocky Mountain Arsenal Building Ill Commerce City, Colorado 800222-0116 Department ofthe Army Office ofthe Judge Advocate General Environmental Iaw Division Attention: DAJA-EL Washington, D.C.20310 Ifto ATSDR: Agency forToxic Substances and Disease Registry c/o Environmental Protection Agency, Region V111 One Denver Place 999 18th Street Denver, Colorado 80202-2413 Attention: Michael McGeehan with a copy to: Director, Office ofHealth Assessments ATSDR 1600 Clifton Road Atlanta,Georgia 30333 Attention: Mark Bashor

-88 -

### IftoDOI: Regional Director U.S. Fish and Wildlife Center Region 6 P.O. Box 25486 Denver, Colorado 80225 IftoDOI concerning Natural Resource Damage Assessment, a copy should alsogo to: United States Department ofthe Interior Office ofEnvironmental Project Review Denver Federal Center, Building 56, Room 1018 Denver, Colorado 80225 Attention: Regional Environmental Officer Ifto EPA: EPA's Coordinator for RMA (8HWM-SR) U.S. Environmental Protection Agency Region VIII One Denver Place 999 18th Street, Suite 1300 Denver, Colorado 80202-2413 Ifto Shell: Shell Denver Site Project c/o Holme Roberts & Owen 1700 Lincoln, Suite 4100 Denver, Colorado 80203 Attention: Manager ofDenver Site Project with a copy to: Shell Oil Company Legal Department P.O. Box 2463 Houston,Texas 77252 Attention: General Attorney Environmental

-89-Ifto the State: Colorado Department ofHealth 4210 East IIth Avenue Denver, Colorado, 80-220 Attention: CDH Coordinator for RMA with a copy to: CERCLA Litigation Section Colorado Department ofLaw One Civic Center Plaza 1560 Broadway, Suite 250 Denver, Colorado 80202 Attention: First Assistant Attorney General
37.2 All written notices or communications directed to the Coordinator or representative ofthe RMA Comn-Littee or to the Chairman or members ofthe RNIA Council shall be sent in care ofthe addresses setforth in paragraph 37.1 for the appropriate Organization, and it shall be the responsibility ofthe recipient to forward the notice or communication to the appropriate individuals within the Organization.
37.3 By written notice pursuant to paragraph 37.1, any Organization may change the address, telefax number, or individual to which written notices.or communications shall thereafter be directed.

XXXVIII. SPECIAL EXEMMONS
38.1 Notwithstanding any other provisions ofthis Agreement, the United States reserves the right to take action affecting the Arsenal that is not consistent with this Agreement, including use of the Arsenal for any purpose upon the occurrence of either ofthe following events: (a) a determination by the President that such action is ofparamount importance, or (b) a determination by the United States Secretary of Defense or by the United States Secretary ofthe Army that such action is necessary and in the interest ofnational defense. The costs ofany action, including any Response Action, taken by the United States pursuant to or as aresult of a detern-dnation made in accordance with the previous sentence, shall be borne entirely by the United States.

XX)GX. JUDICIAL REVIEW
39.1 Except for issues concerning disputes involving compliance with this Agreement, an Organization may obtainjudicial review only ofissues which an

-90-Organization previously sought to resolve through Dispute Resolution or issues that bear a substantial and material relationship to such issues. 39.2 Judicial review may be obtained by any Organization that is accorded the right to do so pursuant to this Agreement by motion filed in the Court within the following time periods: (a) for issues concerning assessment and selection ofa Response Action (i.e., IRA, Final Response Action orSupplemental Response Action), not later than 30 days after issuance ofthe final ROD orIRA Decision Document for that Response Action; (b) for issues concerning Shell's obligation to pay penalties or any other remedy or sanction sought against Shell, within the appropriate period set forth in paragraph 30.7; (c) for all other issues that may be submitted to Dispute Resolution, and are otherwise subject tojudicial review, not later than 15 days after the end ofthe FRC's 30-day resolution period; (d) for all disputes arising underthe Financial Manual, within the time period specified in the Financial Manual; (e) to enforce compliance with any provision ofthisAgreement, not later than 15 days after the end ofthe period of informal dispute resolution provided for in paragraph 30.1. 39.3 The standard and scope ofreview ofany issue concerning the assessment and selection ofResponse Actions shall be the standard and scope ofreview applicable to actions brought pursuant to Section 107 ofCERCLA, 42 U.S.C. S9607, at the time that suchjudicial review is sought. Ile scope ofreview shall be de novo, and the standard ofreview shall be the preponderance ofthe evidence for a question of whether and towhat extent stipulated civil penalties are due. Whether the United States may permit,the use ofany portion ofthe Arsenal pursuant to Section XLIV over Shell's objection pendingjudicial review shall be determined by the.Court in accordance with traditional principles governing injunctive actions. For all other issues, including issues concerning compliance with thisAgreement and the design and implementation of Response Actions and Natural Resource Damages, the standard and scope ofjudicial review shall be as the Court determines to be appropriate. 39.4 Nothing in this Agreement shall be construed to authorize any person to seekjudicial review ofany action ofthe Army, EPA, Shell or the State where such review isbarred by any provision ofCERCLA, including Section 113(h) ofCERC" 42 U.S.C. s 9613(h).

XL. FUNDINQ 40.1 Anyrequirement for the payment or obligation offunds by the United States or any agency thereof,established bythe terms ofthis Agreement shall be subject to availability ofappropriated funds, and no provision herein shall be interpreted to require obligation or payment offunds in violation oftheAnti-Deficiency Act, 31 U.S.C. § 1341. It is the expectation ofthe Organizations thatall obligations ofthe United States under this Agreement will be fully funded. The United States, or any agency thereof, shall take all necessary steps and make every effort within its authority to assure

91 -that timely funding is available to meet all obligations ofthe United States under this Agreement. In cases where payment or obligation offunds would constitute aviolation ofthe Anti-Deficiency Act, the dates established for payment or obligation shall be appropriately adjusted. Notwithstanding any such adjustment oftile date established for payment, interest shall continue to accrue from and after the original due date in accordance with the terms ofthe Settlement Agreement. 40.1 The Army shall submit an annual report to Congress which shall include, at a minimum: (a) a description ofthe Army's progress inplanning, selecting, and implementing Response Actions at the Arsenal; and (b) the specific cost estimates and budgetary proposals anticipated by the Army over the following three-year period.
40.3 Notwithstanding any other provisions ofthis Agreement, Shell's obligation to incur costs pursuant to an agreement with thehead Agency shallbe contingent on the Army's certification that funds will be available to reimburse Shell for the cost ofsuch Response Actions to the extent that Shell will be entitled to reimbursement pursuant to Section VI ofthe Settlement Agreement; except that nothing in this Section shall be construed to relieve Shell ofany Shell obligations underthis Agreement orthe Settlement Agreement for the designated Shell-Only Response Actions in Exhibit D to the Settlement Agreement.

XLL ATSDR HEALTH ASSESSMENT OR HEALTH EFFECTSSTUDY
41.1 Prior to the effective date ofthis Agreement, the February 1, 1988, and June 7, 1988, proposed consent decrees governed the performance byATSDR ofits preliminary Health Assessment. Onthe effective date ofthisAgreement, this Section shall control ATSDR's performance ofany further Health Assessments or Health Effects Studies. ATSDR shall perform one or more Health Assessments for the Site pursuant to Section 104(i) ofCERCLA 42 U.S.C. s 9604(i), and any applicable final Federal regulations that are not inconsistent with CERCLA. The results ofany Health Assessment performed by ATSDR shall be set forth in aproposed report,which shall be submitted to EPA for review and comment. EPA shall make copies ofthe proposed report available upon request to the other Federal agencies and shall consult with other Organizations with respect to the proposed report. After considering any comments received from EPA, ATSDR shall prepare a draft final report, which shall be made available forpublic comment. ATSDR shall publish notice ofthe availability ofthe draft final report in at least one major daily newspaper inthe Denver, Colorado metropolitan area. The public shall have 30days to comment on the draft final report,
or such longer period as determined appropriate byATSDR. After considering all comments received on the draft-final report, ATSDR shall issue a final report, acopy of which shall be sent to each Organization. 41.2 Upon reasonable prior written request, any Organization shall be given

access to ATSDR's administrative record ofa Health Assessment.

921 -41.3 ATSDR may perform one or more Health Effects Studies for the Site pursuant to Section 104(i) oiCERCLA, 42 U.S.C. § 9604(i). Prior to initiating a Health Effects Study, ATSDR shall advise EPA that it has determined there to be aneed fo'r Such study. EPA, after consultation with the other Organizations, may provide recommendations to ATSDR concerning the proper scope ofthe proposed Health Effects Study and may provide, or advise ATSDR ofthe availability ofany data orother information which EPA believes would be pertinent to such study.
41.4 The results ofa Health Effects Study shall be set forth in a draft firfla report, which shall be made available for public comment. ATSDR shall publish noýce ofthe availability ofthe draft final report in at least one major daily newspaper in the Denver, Colorado metropolitan area. The public shall have 30 days to comment on the draft final report, or such longer period as determined appropriate by ATSDR. Aftet considering all comments received onthe draft final report, ATSDR shall issue a final report, a copy ofwhich shall be sent to each Organization. 41.5 Upon reasonable prior written request, any Organization shall be gi%ien
access to ATSDR's administrative record for aHealth Effects Study.
41.6 At the request ofATSDR, the Organizations shall promptly make appropriate representatives available to respond toquestions from ATSDR, and shall provide pertinent written information to ATSDR, foruse in a Health Assessment or a Health Effects Study. At the request ofATSDR, the Organizations shall meetwith ATSDR, either individually or in full Committee, for the purpose ofproviding such information. Copies ofany written communication from an Organization to ATSDR shall be sent to the other Organizations at the time itis sent to ATSDR.
41.7 Whenever, during the course of,or as aresult ofa Health Assessment
or a Health Effects Study, ATSDR determines there tobe an imminent danger to human health as the result ofthe release or threatened release ofa hazardous substance at or from the Arsenal, ATSDR shall promptly advise the Organizations ofsuch determination. XLIL NATURAL RESOURCE DAMAGE -ASSESSME
42.1 The DOI Natural Resource Damage Assessment regulations and this Section shall govern the Natural Resource Damage Assessment within the trusteeship authority ofthe Federal government, unless the Organizations and DOI agree otherwise. 'nie Army (or Shell, when it is acting as Lead Party), inplanning and assessing, selecting and implementing Response Actions shall, tothe extent required by the NCP and in consultation with DOI, undertake appropriate actions necessary toprotect and to restore natural resources under the United States' trusteeship that have been damaged bythe release ofhazardous substances at orfrom the Arsenal.

93 -42.2 Upon execution ofthis Agreement, the Army, in consultation with the State, Shell and appropriate Federal agencies, shall designate the Chairman ofthe RMA Council to be the lead authorized official, to act on behalfofall Federal government agencies, which, pursuant to CERCLA, are trustees for public natural resources on or offthe Arsenal and within the Federal government's trusteeship authority that have been injured, destroyed or lost as aresult ofthe release ofhazardous substances at or from the Arsenal. 42.3 After Finalization ofthe ROD for the On-Post Operable Unit or Finalization ofthe ROD for the Off-Post Operable Unit, whichever is later, and pursuant to CERCLA and applicable regulations promulgated under Section 301(c) of CERCLA,42 U.S.C. §9659(c), the lead authorized official shall conduct a preassessment screening for the purpose ofdetermining whether and towhat extent there is any residual injury to the natural resources arising from the release ofhazardous substances at orfrom the Arsenal. Ifthe lead authorized official in consultation with DOI determines that there issufficient residual injury toproceed, then the lead authorized official shall develop a Natural Resource Damage Assessment Plan,conduct
a damage assessment, and conduct the activities required for the post-assessment phase.
42.4 In the determination ofbaseline conditions and'baseline services and of the reduction in services that may have resulted from the release ofhazardous substances at orfrom the Arsenal, the United States shall take into account, among other things, the uses of natural resources at the Arsenal by the United States and members ofthe public at large. 42.5 The lead authorized official shall consult and coordinate with Shell, the State, and appropriate Federal agencies in thepreparation ofthepreassessment screens, Natural Resource Damage Assessment Plan, Natural Resource Damage Assessment, the post-assessment phase, particularly withrespect tothe sharing ofthe data and the development ofthe Natural Resource Damage Assessment Plan.
42.6 Ifthe lead authorized official in consultation with DOI decides to develop a Natural Resource Damage Assessment Plan, he or she shall notify Shell, the State and appropriate Federal agencies inwriting ofthatdecision at least 30 days before proceeding with development ofthe Natural Resource Damage Assessment Plan. Such notice shall include a copy ofthe preassessment screens and shall provide Shell, the State, and appropriate Federal agencies an opportunity to participate inthe 

### . development ofthe Natural Resource Damage Assessment Plan. Shell and the Army may participate in the development ofany aspect ofthe Natural Resource Damage ,Assessment Plan. 42.7 The lead authorized official shall provide the draft Natural Resources Damage Assessment Plan, including the methodologies to be used,to Shell, the State, appropriate Federal agencies and interested members ofthe publicfor comment. Shell, the State, appropriate Federal agencies, and interested members ofthe public shall have

-94-30 days in which to comment. The lead authorized official shall have 30days inwhich to respond in Writing tothose comments. After the lead authorized official's response, Shell or DOI may invoke Dispute Resolution over any aspect ofthe draft Natural Resource Damage Assessment Plan. 4,?.8 After the end ofthe comment and response periods and consistent with the results ofDispute Resolution, ifinvoked, the lead authorized official shall issue the final Natural Resource Damage Assessment Plan. If,inthe opinion ofthe lead authorized official, a change in the applicable statute or regulations requires modifications ofthe final Natural Resources Damage Assessment Plan, such modifications shall be subject to the notice, comment and Dispute Resolution procedures set forth inparagraph 42.7. 42.9 At the option ofthe lead authorized official, Shell, theArmy, or another Federal natural resource trustee, under the direction, guidance and monitoring ofthe lead authorized official, may conduct any part ofthe natural resource damage assessment. The Natural Resource Damage Assessment shallbe conducted as set out in the Natural Resource Damage Assessment Plan and any modifications thereto.
42.10 Priorto issuance ofa Report ofAssessment, the lead authorized official shall issue its draft Report ofAssessment to Shell, the State, and appropriate Federal agencies. If Shell disagrees with the draft Report ofAssessment, Shell may invoke Dispute Resolution. XLIII. SHELLPARTICIPATION IN RESPONSE AMONS
43.1 Prior to the effective date ofthis Agreement, the February 1, 1988, and June 7, 1988, proposed consent decrees governed Shell's participation in Response Actions. On the effective date ofthisAgreement, this Section shaU control Shell's participation in Response Actions. Shell's right to participate as Lead Party for Response Actions for the On-Post and Off-Post Operable Units shall be as follows: (a) RI/FS forthe On-Post Operable Unit--Shell may participate as Lead Party as provided.in Section =V; (b) IRAs for the On-Post and Off-Post Operable Units--Shell may participate as Lead Party as provided in Section XNJI; (c) Operation and Maintenance ofResponse Action Structures~ Shell mayparticipate as Lead Party as provided in Section XXXV; (d) Emergency Actions--Shell may participate as Lead Party as provided in Section XXIII; and

-95 -(e) Final and Supplemental Response Actions--Shell may participate as Lead Party for Final or Supplemental Response Actions as provided in paragraphs 34.10-34.11 hereof. 4').2 Shell may participate as Lead Party for Response Actions for the OnPost and Off-Post Operable Units other than those identified inparagraph 43.1, in accordance with the terms and conditions ofparagraphs 43.3-43.8. 43.3 Prior to initiating any other Response Action work in which Shell has the right to participate hereunder as Lead Party other than the work identified in paragraph 43.1, the Lead Agency shall provide Shell with reasonable periods oftime within which Shell may propose to conduct such work in accordance with this Agreement. 43.4 Within the time periods provided pursuant to paragraph 43.3, Shell shall identify in writing any Response Action work subject to this Section, including the design, implementation, operation, and maintenance ofa Response Action Structure constructed by Shell or the Lead Agency, that Shellwishes to conduct as Lead Party. Within 30 days after receipt ofsuch identification, the Lead Agency shall determine whether itis more appropriate for Shell rather than the Lead Agency to conduct the identified Response Action work, and shall notify Shell in writing ofits determination. Ifthe Lead Agency determines that itis not more appropriate for Shell toconduct any identified Response Action work, Shell may invoke Dispute Resolution. Only theArmy, EPA, and Shell shall participate in Dispute Resolution onthis issue. The issue to be addressed during Dispute Resolution is whether, considering all relevant circumstances, it is more appropriate for Shell toconduct the Response Action work than the Lead Agency. The result ofDispute Resolution ofthat issue shall notbe subject tojudicial review.43.5 Once ithas been determined, eitherby the Lead Agency or through Dispute Resolution, that itis more appropriate for Shell to conduct any Response Action work, Shell and the Lead Agency shall, pursuant to the Memorandum of Understanding attached as Exhibit G tothe Settlement Agreement, develop and sign a Scope ofWork by which the Response Action work shall be conducted. IfShell orthe Lead Agency are unable to agree upon a Scope ofWork, either may invoke Dispute Resolution. Onlythe Army, EPA and Shell shall participate in Dispute Resolution on this issue. 43.6 Payment ofthe costs incurred by Shell in conducting Response Actions shall be governed by Sections VI and VII ofthe Settlement Agreement. Notwitlistanding any other provisions ofthis Agreement, orthe Settlement Agreement, Shell's obligation to incur costs pursuant to an agreement with the Lead Agency shall be contingent onthe Army's certification that funds will be available to reimburse Shell for the cost ofsuch Response Actions to the extent that Shell will be entitled to such reimbursement pursuant to Section VI ofthe Settlement Agreement.

-96 -43.7 Unless the United States and Shell otherwise agree in writing: (a) each Response Action Structure constructed or placed on the Arsenal by Shell pursuant to this Section shall become the property ofthe United States upon acceptance ofShell's work ofconstruction orplacement ofthat Response Action Structure; and (b) the lrondale System shall become the property ofthe United States upon Finalization ofthe ROD for the On-Post Operable Unit. 43.8 Notwithstanding anyother provision ofthis Section, the Lead Agency shall, subject tothe Dispute Resolution andjudicial review provisions ofthisAgreement, make all ARAR determinations, issue all IRA Decision Documents and all RODs for Final or Supplemental Response Actions, conduct all public meetings, and respond to public comments on all IRA Decision Documents and all RODs.
XLIV.RESTRICTIONS -ONOWNERSHIP, USE. AND TRANSFER 44.1 The United States shall retain title to the Arsenal, subject to the provisions ofthis Section. 44.2 Prior to the effective date ofthis Agreement, the February 1,1988, and June 7, 1988, proposed consent decrees governed the implementation and application of certain existing restrictions on ownership, use and transfer ofthe Arsenal. Onthe effective date ofthis Agreement, this Section shall control the implementation and application of restrictions on ownership, use and transfer ofthe Arsenal. The Parties have agreed that certain existing restrictions on the use ofresources on and underthe Arsenal should continue after the execution ofthis Agreement to assure continued protection ofhuman health and the environment and shall amend the Technical Program Plan to include such restrictions. The United States intends that significant portions ofthe Arsenal shall eventually be available forbeneficial public uses that are consistent with the following restrictions, which shall be maintained and enforced for all property %vithin the boundary ofthe Arsenal, subject only to the provisions of paragraph 44.6 and Section XLV. (a) Residential development onthe Arsenal shall be prohibited. (b) The use ofgroundwater located under, or surface water located on, tile Arsenal as a source ofpotable water shall be prohibited. (c) Consumption ofall fish and game taken on the Arsenal shall be prohibited, although hunting and fishing on the Arsenal for non-consumptive use may occur ifsubject to appropriate restrictions. (d) Agricultural, including all farming activities such as the raisingof livestock, crops, orvegetables, shall be prohibited. Agricultural practices used in Response Action or used for erosion control, however, shall be permitted.

-97-(e) Wildlife habitat(s) shall be preserved and managed as necessary to protect endangered species ofwildlife to the extent required by the Endangered Species Act, 16 U.S.C. §§ 1531 et seQ, migratory birds tothe extent required by the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 ei seq., and bald eagles to the extent required by the Bald Eagle Protection Act, 16 U.S.C. §§ 668 et seQ, (f) Other than as may be necessary in connection with a Response Action or as necessary to construct or operate a Response Action Structure, no major alteration shall be permitted in the geophysical characteristics oftheArsenal ifsuch alteration may likely have an adverse effect on the natural drainage ofthe Arsenal for I'loodplain management, recharge ofgroundwater, operation and maintenance of Response Action Structures, orprotection ofwildlife habitat(s).
44.3 The United States shall maintain security at the Arsenal adequate to
assure the proper construction, operation, and maintenance ofResponse Action Structures, the proper implementation and monitoring ofResponse Actions and compliance with the restrictions listed'in paragraph 44.2 and the Techr&al Program Plan. The United States shall take reasonable precautions to assure that only Federally authorized access to the Arsenal shall occur. 44.4 The United States shall impose and enforce, either on a temporary or permanent basis, additional restrictions on the use ofresources on and under the Arsenal not enumerated in paragraphs 44.2 and 44.3 if,at any time, the U' nited States determines that such restrictions are: (a) required by CERCLA or regulations promulgated thereunder; (b) necessary to assure protection ofhuman health or the environment; or (c) necessary to assure the proper construction, operation, and maintenance ofResponse Action Structures or to assure theproper implementation and monitoring ofResponse Actions at the Arsenal or; (d) required by the Endangered Species Act, the Migratory BirdTreaty Act and the Bald Eagle Protection Act. The additional restrictions shall be appended to the Technical Program Plan.
44.5 The United States shall assure that the assessment, selection, design, construction and implementation ofResponse Actions for the Site, including the identification and application ofARARs and the development and application ofany other standard, requirement, Criterion orlimitation for a Response Action, shallbe based upon and consistent %vith the terms and conditions ofthis Agreement, including without limitation the restrictions and requirements set forth inparagraphs 44.2 and 44.3, or developed pursuant toparagraph 44.4 and appended to the Technical Program Plan. Each ARAR identified, or other standard, requirement, criterion or limitation developed, fora Response Action conducted on or offthe Arsenal and its application to Response Actions for the Site (including the location on or offthe Arsenal where the ARAR or other standard, requirement, criterion or limitation mustbe met, and a target date formeeting such ARAR or other standard) shall be specified in the applicable decision document for such Response Action (i.e., ROD, Supplemental ROD or IRA

-98 -Decision Document) and shall be fully enforceable by any Party in accordance with Section XXVIII. 44.6 It is understood that because the Response Actions for the Site are to be based on and consistent with the terms and conditions ofthis Agreement, including without limitation the restrictions and requirements set forth in paragraphs 44.2 and 44.3 or developed pursuant toparagraph 44.4, such Response Actions are conditional in nature; that is, if any such restriction orrequirement is removed for any reason, the United States shall ýromptly evaluate the need for, and as necessary implement, any additional Response Action as may be necessary to assure protection ofhuman health and the environment. The assessment, selection, design and implementation ofany such Response Action shall be conducted in accordance with the terms ofSections XXIV and XXV. When conducting a Periodic Review pursuant to Section XXXV1, the United States shall assess the effectiveness ofthe restrictions in paragraphs 44.2 and 44.3 or developed pursuant to paragraph 44.4 in protecting human health and the environment. The United States shall also evaluate the continuing need for such restrictions or requirements to determine ifany restriction or requirements maybe removed or modified. Ifthe Army believes that, as a result ofResponse Actions previously taken, any ofthe restrictions on ownership, use and transfer listed inparagraph 44.2 and 44.3
or developed pursuant to paragraph 44.4 are no longer necessary to assure protection of human health and the environment, the Army may seek to modify this Agreement pursuant to Section XLV and the Technical Program Plan to remove or modify such, restriction. 44.7 The United States shall assure that the future use ofresources on and tinder the Arsenal by the United States or by persons entering on the Arsenal with the consent ofthe United States, including licensees and lessees ofthe United States, shall be in compliance with the restrictions and requirements set forth in paragraphs 44.2 and 44.3 or determýined necessary by the United States pursuant to paragraph 44.4. Any lease, license, or other instrument by which the United States provides for the use ofany portion ofthe Arsenal by non-Federal parties shall require such parties to comply with all such restrictions and requirements. 44.8 If, after the effective date ofthis Agreement, the United States decides to lease, grant a license, or otherwise provide forthe use by any non-Federal party of the Arsenal, or any portion thereof,it shall first issue and deliver to Shell aproposed Report ofAvailability, which shall include, at a minimum, the following information: (a)
a legal description ofthe land involved (together with aplatdepicting such land); (b) a description ofthe nature, scope, and extent ofany hazardous substance, pollutant, or contaminant located in, on,or underthe land involved, as reflected by the On-post Rl/FS (as affected bythe implementation ofResponse Actions) oras otherwise known to the United States; (c) the specific use(s) ofthe property tobe allowed by the lease, license, orother instrument and the means bywhich the non-Federal party will implement those specific uses (including the extentofany excavation or other subsurface disturbance); (d) the restrictions and requirements identified in paragraphs 44.2-44.4 and

_99-the Technical Program Plan as applied to the specific use(s) reflected in the Report of Availabilitv; and (e) any additional restrictions and requirements to be included in the lease, license, or other instrument. The United States shall issue and deliver to Shell and the State the proposed lease, license, or otherinstrument by which the United States intends to provide for use by any non-Federal party of the Arsenal, or any portion thereof. 49 Shell and the State shall have 30days afterreceipt ofany proposed Report ofAvailability in which toprovide written comments to the United States. This period shall be extended by the United States for an additional 30 days at the request of Shell or the State. Tle United States shall respond to the comments within 30days after receipt ofthose comments. Afterreceipt ofthe United States' response, ifany Organization disagrees about the proposed Report ofAvailability, then any Organiiation may invoke Dispute Resolution bynotifying the RMA Council ofthe dispute within 14 days after receipt ofthe United States' response. The United States shall not take any action with respect tothe lease, license, or other instrument until the period for invoking Dispute Resolution has expired. IfShell orthe State invokes Dispute Resolution, the United States shall not take any actionwith respect to the lease, license, or other instrument until completion ofDispute Resolution. Ile only issue to be addressed during Dispute Resolution orjudicial review concerning the United States' proposed lease, license or other instrument shall be whether the action proposed by such instrument would be consistent with the protection ofhuman health and the environment. Ifthe proposed action is determined to be consistent with the protection ofhuman health and the environment, itmay proceed. IfDispute Resolution is invoked pursuant to thisparagraph, and at that time a Federal agency other than the Army has management authority over the property involved inthe dispute, appropriate officials of that Federal agency shall participate in Dispute Resolution in lieu ofArmy officials. Following Dispute Resolution, Shell shall have the right to seekjudicial review ofthe FRC's decision by filing a motion with the Courtwithin30 days ofthat decision. The Report ofAvailability shall berevised toreflect the outcome ofDispute Resolution or judicial review. 44.10 The United States shall incorporate into the lease, license, or other instrument all restrictions and requirements identified inthe Report ofAvailability and any restrictions and requirements resulting from Dispute Resolution orjudicial review. A copy ofthe lease, license, or other agreement shallbe provided toShell at least 30 days prior to its effective date. Tle United States shall attach to the lease, license, or other instrument the following documents: (a) the Report ofAvailability issued pursuant toparagraph 44.8, (b) the comments of Shell and the State onthe Report of Availability, (c) theUnited States' response, and (d) a statement ofwhether Dispute Resolution was invoked and the resultsofthat process. The United States shall then record the lease, license, or other instrument and the attachments listed inthe previous sentence inthe real property records ofAdams County, Colorado.

100-44.11 The United States shall follow all the procedures set forth in paragraphs 44.8-44.10 for any lease, license, or instrument that provides for use by a non-Federal party ofthe Arsenal, or ofany portion thereof,orfor any amendment, modification, or other change to any such lease, license, or other instrument. 44.I'd'. Any person having actual or constructive notice ofany filing made pursuant to paragraph 44.10 shall be bound by such filing.
XLV. AMENDMEN 45.1 Unless and until this Agreement is incorporated into a Consent Decree that has been entered by the Court, this Agreement may be amended at the request ofa Signatory upon unanimous agreement ofthe Signatories. 45.2 Upon incorporation ofthis Agreement into a Consent Decree thathas been entered by the Court, the terms ofthis Agreement maybe amended only by modifying the Consent Decree pursuant to the terms and conditions ofthat Decree.
45.3 Notwithstanding the preceding paragraph, ifthe United States Supreme Court declares any provision(s) in CERCLA unconstitutional, orifthe United States elects not to appeal such a declaration by a lower Federal court, any Party without the approval ofthe other, may petition the Court to modifysuch Consent Decree in lightof
anv such declaration. Any modification to such Consent Decree shallbe subject to public comment pursuant to paragraph 3.5-3.7.

EFFECTIVE: February 17, 1989

101 -FOR THE UNITED STATES OF AMERICA B_Yýe Department ofthe Army:

Date LEWIS D. WALKER Deputy for Enviroament Safety &Occupational Health

.102-

### Bythe United States Environmenia-I Protection Agency*

Ua-te J.4WINSTON PORTER AssistantAdministrator for Solid

Waste and Emergency Response

103 -By the United States Environmental Protection Agengy. Region VITT: (JAI)4ES EACHERER

Date 'JAI 'RL"gional Administrator Region VIII

- 104 -

### Bvthe United States Department-of Interior

I
-4V-e'?

- Date GALEN BUTERBAUOH Regional Direcltor Region 6 U.S. Fish and Wildlife Service

105 -By-the United States Department ofInterior:

J"&' ý / ?ý I /,", L-4-Au, Date I K-CVY NORTON-DUNLOF Assistant Secretary for Fish,

Wildlife and Parks U.S. Department ofInterior

106 -

### By the Agena fo Toxic Substances and Disease Registry. United Sta DeDartment ofHealth and Human Services:

Date HARRY JOHNSON Associate Administrator Agency forToxic Substances and Disease Registry Department ofHealth and Human Services



## 1 C"tý C4-. 

## Xcc-Aý PAULA L.KOCHER Senior Attorney Office oftheGeneral Counsel Agency forToxic Substances and Disease Registry Department ofHealth and Human Services

107-By the United States Department ofJustice:

Date MYLIU E*rLMI Deputy Assistant Attorney General

108-

### FOR SHELLOIL COMPANY:

Date Vice President

Date HOLME ROBLTRT3 &OWEN A.EDGAR BENTON DANIEL S.HOFFMAN EDWARDJ.McGRATH Attorneys for Shell Oil Company 1700 Lincoln, Suite 41W Denver, Colorado 80203

-109-EXHIBIT A TO FEDERAL FACILITYAGREEMENT THE ARSENATHE ARSEVALL

The Rocky Mountain Arsenal consists of the followinq described land in Adams County, Colorado: 1. In Township 2 South, Range 66 West of the Sixth Principal Meridian:
All of Sections 19, 20, 29, 30, 31 and 32; 2. In Township 2 South, Range 67 West of the Sixth Principal Meridian:

a. All of Sections 24, 25, 26, 34, 35 and 36; and b. That portion of Sections 22; 23, 27, 28 and 33 lying Southeasterly of the Southeasterly Right-of-Way line of U.S. Highway No. 6;
3. In Township 3 South, Range 66 West of the Sixth Principal Meridian:
All of Sections 5, 6, 7 and 8; 4. In Township 3 South, Range 67 West of the Sixth Principal Meridian:

a. All of Sections 1, 2, 3, 4 and 11f b. All of Section 9, excepting therefrom the East 660.00 feet of the West 1260.00 feet of the South 660.00 feet of the SW/4 of Section 9:

co The East 50 feet, the North 50 feet, and the West 50 feet of Section 10; and d. All of Section 12.*

The following described tract of land in Section 12, T. 3 S., R. 67 W., 6th P.M. in owned by the United States and operated by the United States Army but was removed from the area officially designated as the Rocky Mountain Arsenal for other purposes in 1982: beginning at a point on the West line of said Section 12 which bears North 00*060070 West, 155.00 feet from the Southwest corner thereof; thence North 00*061070 East, 480.00 feet; thence South 89*491340 East, 900.00 feet; thence South 00*061070 Footnote continued on next page.

A-1The above described land contains 17,073-70 acres, more or less.

Footnote continued from previous page. West, 480.00 feet; thence North 89*490340 West, 900.00 feet to the Point of Beginning.

A-2EXHIBIT B TO FEDERAL FACILITY AGREEMENT THE SITEEXHIBIT 6 THE SITE

LEGEND BRIGHTON

.f-00*SITE BOUNDARY

OFF-POST AREA 

# F-I THE ARSENAL

-A SCALE

2 W ES Q, C, 2 KM 15 HEND SON 36 16 (b HAZELTINE 0 HAZELTINE //HEIGHTS A

Res. F IR

LIE 80th Ave. /I Ci DUPONT

Q Ladora La e LakeMary COMMERCE Derby CiTY Lake 

# Is, MCNTBEL_ý-) 

# CLQEXHIBIT C

TO FEDERAL FACILLITY AGREEMENT SUPPLEMENTAL AGREEMENT BYTHE STATE TO BE BOUND BY THE DISPUTE RESOLUTION PROCESS---_

ESTABLISHED PURSUANT TO THE PROVISIONS OF THE FEDERAL FACILITY AGREEMENTEXHIBIT C

SUPPLEMENTAL AGREEMENT BY THE STATE OF COLORADO TO BE BOUND BY THE DISPUTE RESOLUTION PROCESS ESTABLISHING PURSUANT TO THE PROVISIONS OF THE FEDERAL FACILITY AGREEMENT

Recitals A. The United States Army ("Army"), the United States Environmental Protection Agency ("EPA") the United States Department ofthe Interior ("DOI") and Shell Oil Company ("Shell") have established aprocess for resolving disputes ("Dispute Resolution") that arise concerning the planning, selection and implementation of response actions resulting from the release or threatened release ofhazardous substances, pollutants or contaminants at or from Rocky Mountain Arsenal. B. The Dispute Resolution Process is set forth in the accompanying Federal FacilityAgreement ("Agreement"). C. Ile State ofColorado (the "State") has not yet signed theAgreement. D. The State, the Army, EPA and Shell believe thatit isdesirable for the State to participate in Dispute Resolution,even though the State is -notyet a signatory to the Agreement. E. Paragraph 30.2 oftheAgreement requires that before the State may participate in Dispute Resolution, the State must agree tocomply with the procedures for that process. F. Ile State, the Army, EPA and Shell desire to enter into this Supplemental Agreement to satisfy the requirements ofparagraph 30.1 ofthe Agreement that the State agree to comply with the procedures for the Dispute Resolution process.

C1Supplemental Agreement In consideration of the foregoing, the State, the Army, EPA and Shell (collectively, the "parties") hereby agree as follows: 1. This Supplemental Agreement shall be attached to and become a part ofthe Agreement. 2. After execution ofthis Supplemental Agreement by all the parties, the Army, EPA, DOI and Shell shall not modify any provision ofthe Agreement that relate's directly to the State's right to participate in the Dispute Resolution process under the Agreement, without the consent ofthe State. 3. Ile State agrees to comply with all applicable provisions ofthe Agreement concerning the Dispute Resolution process, including without limitation the following: (a) Ile State must commence Dispute Resolution within the applicable time period specified by the Agreement or, ifno time is specified, within a reasonable time after the State concludes that a dispute exists. (b) The State shall comply with all other applicable time periods specified for the Dispute Resolution process. (c) The State shall make a good-faith effort toresolve any dispute at each Dispute Resolution level before requesting that it be elevated to the next higher level for resolution. (d) The State shall prepare a concise statement of the issue in dispute and identify the activities, ifany, that it believes are affected by the dispute in such a way that they should not proceed during Dispute Resolution. (e) The State shall not seekjudicial review ofan issue in dispute while the Dispute Resolution process is under way. (f) Tle State may only seekjudicial review ofan issue ifthe iss' ue is subject tojudicial review under the Agreement and the State first attempted to resolve the matter through Dispute Resolution.
W The State shall comply with applicable provisions ofparagraph 39.2 of the Agreement concerning timing ofjudicial review. (h) The applicable provisions ofthe Agreement setting forth how, and by whom, a dispute is to be resolved at any given level in the Dispute Resolution processshall be binding upon the State subject tojudicial review as set forth in ofthe Supplemental Agreement. W Ordy those issues identified in the Agreement as subject to Dispute Resolution by the State or all the Organizations may be raised to Dispute Resolution by the State. The State shall treat as highly confidential and not publish, divulge, disclose or make known in any manner orto any extent not authorized by law, any Confidential Information (as defined in the Agreement) received by, ormade available to the State, in coanection with any activities performed pursuant to the Consent Decree. (k) Oral statements made in the course ofDispute Resolution, and documents prepared solely for use in Dispute Resolution, shall be kept confidential and shall not be disclosed to any non-party, and shall be considered statements made in furtherance ofsettlement and entitled tothe protection afforded such statements and documents bythe Federal Rules ofEvidence and the Colorado Rules ofEvidence. Persons whoparticipate in the Dispute Resolution process shall not be subject to deposition or other discovery concerning statements made during, in preparation for, or in connection with Dispute Resolution.

C3 -FOR THE UNITED STATES OF AMERICA By the Department ofthe A=

Date LEWIS D. WALIMR Deputy for Enviromment, Safety &Occupational Health
By the United States Environmental Protection Age=

Date JAMES J. SCHERER Regional Administrator Region VIII
By the Department ofJustice

Date MYLES E.FLINT Deputy Assistant Attorney General

C4 -FOR SHELL OIL COMPANY

Date R. G. DILLARD Vice President

Date HOLME ROBERTS &OWEN A. EDGAR BENTON DANIEL S.HOFFMAN EDWARD J. McGRATH Attorneys for Shell Oil Company 1700 Lincoln, Suite 4100 Denver, Colorado 80203

C5 -

### FOR THE STATE OF COLORADO By theDepartment ofHealth

Date THOMA9 M. VERNON Executive Director By the Department ofLaw

Date DUANE WOODARD Attorney General

C6 -