UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION VIII

UNITED STATES DEPARTMENT OF THE ARMY

UNITED STATES DEPARTMENT OF THE 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

OF THE ARMY

SHELL OIL COMPANY Docket No. CERCLA VIH-89-13

Federal Facility Agreement

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 FACILITY AGREEMENT

B8900038
TABLE OF CONTENTS

Page

1. JU RISDICTION ........................................ I

ii. PU RPO SE . ......................................... 3

Ill. EFFECTIVE DATE, PUBLIC COMMENT AND EFFECT

ON PRIOR AND OTHER AGREEMENTS ................. 6

(i) Effective Date of Agreement ......................... 6

(ii) Public Review of Agreement ......................... 7

(iii) Interpretation with Respect to Other Agreements .......... 7

(iv) Relation to Future Consent Decree .................... 7

IV. TH E SITE . ......................................... 8

V. STATEMENT OF FACTS ................................ 8

VT. CONCLUSIONS OF LAW ............................... 11

V11. DETERMINATIONS .................................. 12

Vill. ROLE OF DOI ....................................... 13

ix. ROLE OF ATSDR ..................................... 14

X. ROLE OF THE STATE ................................. 15

xi. LEAD AGENCIES ...................................... 15

X11. OPERABLE UNITS .................................... 15

xill. ROLE OF COUNSEL .................................. 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') .................... 28
Page

XIX. TECHNICAL REVIEW COMMITTEE ('TRC-) ................ )9

ADOPTION OF TECHNICAL PROGRAM PLAN ............. 30

(i) Purpose of Technical Program Plan .................... 30

(ii) Development of Drafts of Technical

Program Plan ................................... 31

(iii) Approval of Technical Program Plan .................. 32

(iv) Subsequent Extensions of Deadlines ................... 33

(v) Amendment of the Technical Program Plan ............. 33

XXI. EXCHANGE AND PRESERVATION OF INFORMATION ...... 33

1y_X 11. 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 M anagers ................................ 46

(iv) Interaction of Lead Agency and Lead Party ............. 46

(v) Designation of New,Products and Subproducts ........... 46

(vi) Effect of New Product or Subproduct

Designation .................................... 47

(vii) Revision of On-Going RI Products or

Subproducts, .................................... 47

(viii) Preparation of New Technical Plans ................... 47

(a) Applicability ............................... 47
Page

(b) Initial Effort to Reach Consensus on the

Scope of Work for New Technical Plans ......... 48

(c) Draft Technical Plans for New Products

and Subproducts ........................... 48

(d) Review and Comment on Draft Technical

Plans ................................... 48

(e) Draft Final Plans and Response to

Com ments ............................... 49

(f) Availability of Dispute Resolution ............... 49

(g) Finalization of New 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 of the RMA Committee on

the Development of Products and

Subproducts .............................. 53

(e) Identification and Determination of

Potential ARARs .......................... 53

(f) Review and Comment on Draft Product

and Subproduct Reports ..................... 55

(g) Availability of Dispute Resolution

for Draft Final Product Reports ................ 56

(h) Finalization of Product Reports ................. 56

(i) Subsequent Modifications of Product

Reports ................................. 57

Other Deliverables .......................... 58
Paoe

(k) Remedial Invest igati on/Feasibili ty Study

R eports ................................. 58

XXV. RECORDS OF DECISIONS ("RODs") ...................... 59

(i) Contents of Each ROD ............................ 59

(ii) Draft RODs .................................... 59

(iii) Review and Comment on Draft RODs ................. 59

(iv) Draft Final RODs ................................ 60

(v) Availability of Dispute Resolution .................... 60

(vi) Finalization of RODs .............................. 60

(vii) Publication and Judicial Review of RODs ............... 61

(viii) Modification of RODs ............................. 62

XXVI. DEADLINES AND SCHEDULES AND EXTENSIONS THEREOF 62

(i) Prior Procedure .................................. 62

(ii) Development of Deadlines .......................... 62

(iii) RI/FS Deadlines for the On-Post

Operable Unit ................................. 62

(iv) RI/FS Deadlines for the Off-Post

Operable Unit .................................. 63

(v) Extension of ERA 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 CIVIL PENALTIES ......................... 67

XXX. DISPUTE RESOLUTION ............................... 68

,XxX1. CONTENTS OF ADMINISTRATIVE RECORD FOR EACH

RI/FS ROD, CUSTODIAN AND JARDFC ................. 72

(i) Contents of Administrative Record for

On-Post ROD ................................. 72

(a) Pre-Plan RI/FS Activity ....................... 72

(b) Other Documents Governing the RI/FS Process ..... 72

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Pacea

(c) N PL Listings ............................... 72

(d) The RI/FS Plan ............................. 73

(e) IR As .................................... 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) JARDFC Activities .......................... 75

(1) TRC Activities ............................. 75

(m) Local Governments' Involvement ................ 75

(n) Interagency Agreements ....................... 75

(0) Executive Orders ............................ 75

(p) Deadlines ................................. 75

(q) RO D .................................... 75

(r) Other Documents ........................... 76

(s) Index .................................... 76

(ii) Contents of Administrative Records for

RODs for Other Operable Units and ERAs ............ 76

(iii) Supplementation of Administrative Record for

On-Post ROD ................................. 76

(iv) Custodian of Administrative 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

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Page

XXXIV. DESIGN AND IMPLEMENTATION OF FINAL AND

SUPPLEMENTAL RESPONSE ACTIONS .................. 80

(i) Responseý Actions Covered by the Section ............... 80

(ii) Design and Implementation Deadlines ................. * 80

(iii) Role of the RMA Committee and the RMA Council ....... 80

(iv) Shell's Right, to Participate as Lead Party .............. 82

(v) Design of Response Actions ......................... 82

(vi) Implementation of Response Actions .................. 83

(vii) Right to Judicial Review ........................... 84

(viii) Extensions of Deadlines ............................ 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

KYJ U X. JUDICIAL REVIEW .................................... 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 BY THE STATE TO BE BOUND BY DISPUTE

RESOLUTION

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION VIII

UNITED STATES DEPARTMENT OF THE ARMY

UNITED STATES DEPARTMENT OF THE 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

OF THE ARMY

SHELL OIL 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 of any issues of fact 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 of this Agreement that relate to the RI/FS

pursuant to Sections 104(b), 120(e)(1), 120(e)(6), 120(f) and 122(d)(3) of CERC1A

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) of CERCLA, 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 of this 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, 42 U.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. S 2701, et seQ.

(iv) The Army enters into those portions of this Agreement that relate 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) of CERCLA, 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 of this Agreement that relate to the

Natural Resource Damage Assessment pursuant to Section 107(f), 42 U.S.C. § 9607(f).

(vi) DOI enters into those portions of the Agreement that relate to its

responsibilities in the RI/FS pursuant to Sections 104(b)(2) and 120(e)(1) of CERCLA,

42 U.S.C. H 9604(b)(2) and 9620(e)(1), Executive Order 12580, the Endangered Species

Act, 16 U.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 into those portions of the Agreement that relate to the Natural

Resource Damage Assessment pursuant to Sections 107(f) and 1226)(2) of CERCLA,

42 U.S.C. § § 9607(f) and 96226)(2).

(viii) ATSDR enters into those portions of the Agreement that relate to its

responsibilities in the RI/FS pursuant to Section 104(i)(6) and 120(e)(1) of CERCLA,

42 U.S.C. § § 9604(i)(6) and 9620(e)(1), and Executive Order 12580.

(ix) Shell enters into those portions of this Agreement that relate to the RI/FS

pursuant to Sections 104(b), 104(i)(6), 120(e)(1), 120(e)(6) and 122(d)(3) of CERCLA,

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 of this Agreement 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) of CERCLA, 42 U.S.C.

§ § 9604(b)(2), 9620(e)(2), 9620(e)(6) and 9622(d)(3).

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(xi) Shell enters into those portions of this Agreement that relate to the

Natural Resource Damage Assessment pursuant to Section 107(f) of CERCLA,

42 U.S.C. § 9607(f).

(xii) If the State becomes a Signatory, it enters into those portions of this

Agreement that relate to the RI/FS pursuant to Sections 120(f) and 121(f) of CERC"

42 U.S.C s§ 9620(f) and 9621(f).

(xiii) If the State becomes a Signatory, it enters into those portions of this

Agreement that relate to IRAs, Final Response Actions and Supplemental Response

Actions pursuant to Sections 120(f) and 121(f) of CERCLA, 42 U.S.C. 9620(f) and

9621(f).

(xiv) If the State becomes a Signatory, it enters into those portions of this

Agreement that relate to the Natural Resource Damage Assessment pursuant to

Section 107(f) of CERCLA, 42 U.S.C. § 9607(f).

li. PURPOSE

2.1 Tlis Agreement is intended to establish a procedure by which the

Organizations will cooperate in the assessment, selection and implementation of

Response Actions resulting from the release or threat of release of hazardous

substances, pollutants or contaminants at or from the Arsenal. Prior to the effective

date of this Agreement, the Army's, EPA's, DOI's, ATSDR's and Shell's participation in

the RI/FS and the IRAs were governed by the February 1, 1988, and June 7, 1988,

proposed consent decrees. On the effective date of this Agreement, the Army's, EPA's,

DOI's ATSDR's and Shell's participation shall be in accordance with this Agreement.

2.2 The general purposes of this Agreement are to:

(a) Ensure that the environmental impacts at the Site associated with

past activities at the Arsenal are thoroughly investigated and appropriate remedial action

taken as necessary to protect the public health and the envirorunent.

(b) Establish a procedural framework and schedule for developing,

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 DOI which is not inconsistent with CERCLA and the NCP.

(c) Facilitate cooperation, exchange of information and participat ion of

the Organizations in such actions.

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Specifically, the purposes of this Agreement are to:

(a) Provide for IRAs which are appropriate for the Site prior to the

implementation of final remedial action(s) for the Site. 'Mis process is designed to

promote cooperation among the Organizations in identifying IRA alternatives prior to

selection of final IRAs.

(b) Establish requirements for performance of a RI to determine fully

the nature and extent of the threat to the public health or the environment caused by

the release or threatened release of hazardous substances, pollutants or contaminants at

or from the Arsenal and to establish requirements for the performance of a FS for the

Site and to identify, evaluate and select alternatives for the appropriate remedial

action(s) to prevent, mitigate or abate the release or threatened release of hazardous

substances, pollutants or contaminants 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 of cleanup 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 of Section 120(e) of CERCLA

42 U.S.C. § 9620(e), for an interagency agreement between EPA and the Army.

(e) Assure compliance, through this Agreement with all federal and

State laws pertinent to the CERCLA cleanup of the 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. It is the intent of the EPA, DOT and ATSDR that the Army's

compliance with the terms and conditions of this Agreement and the Settlement

Agreement shall constitute compliance with the Army's obligations under CERCLA, all

other environmental laws applicable through CERCLA and the NCP with respect to the

assessment and selection of Final Response Actions. It is the intent of the United

States that Shell's compliance with the terms and conditions of this 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 of Final Response Actions.

(f) Coordinate Response Actions at the Site with the mission and

support activities at the Arsenal.

(g) Expedite the cleanup process for the Arsenal to the extent

consistent with protection of human health and the environment.

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(h) Provide a process for the performance of ATSDR's Health

Assessment or Heath Effects Study.

(i) Provide for the performance of the Natural Resource Damage

Assessment for the Site.

.;..4 An important purpose of this Agreement is to ensure Shell's full

participation in recognition of the unique factual circumstances that gave rise to this

Agreement and of the important role that Shell has in the cleanup of the Site. Thus,

the United States has entered into this Agreement based on this determination of EPA,

in consultation with the Army, that certain aspects of the RI/FS or IRAs will be done

properly at the Site by Shell within the Deadlines and in a manner consistent with the

NCP. To ensure that Shell will meet the Deadlines and will perform RI/FS and IRA

activity in a manner consistent with the NCP, the Organizations agree that Shell's

obligations under 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) of CERCLA, 42 U.S.C. § § 9604(b), 9620(e)(6), 9622(a) and

96224d)(3). If it 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 of this Agreement is to ensure the

performance of EPA's responsibilities at this Site and under this Agreement in

accordance with Section 120 of CERCLA, 42 U.S.C. § 9620. To assist in the

performance of this EPA responsibility, the Army and Shell agree to pay EPA Costs as

defined in the Settlement Agreement payable and pursuant to Section XII of the

Settlement Agreement.

2.6 It is the goal of the Organizations that, following certification of

completion of the Final Response Action for the On-Post Operable Unit, significant

portions of the Arsenal will be available for open space for public benefit (including, but

not limited to, wildlife habitat(s) and park(s)) consistent with the terms of this

Agreement. Portions of the Arsenal will be made available for such use at the 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 that groundwater and surface water flowing beyond the Arsenal

boundaries will be of a quality that is protective of human health and the envirorunent

and that Response Actions will be sufficient to prevent the vertical and horizontal

migration of on-post contaminated groundwater and surface water so that off-post

surface water and groundwater may be used in areas outside of the Arsenal boundaries.

2.8 The Organizations intend by this Agreement to provide for substantial and

meaningful involvement of the 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 of the public to have a meaningful opportunity to participate in the planning and selection of remedial actions, including but not limited to the review of all

applicable data as they become available-and the development of studies, reports and

action plans.

2.9 It is the hope of the United States and Shell that this Agreement will

ultimately be incorporated, along with 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. It is the intent of the United States and Shell that upon entry of a

Consent Decree incorporating this Agreement, all of the terms of this Agreement shall

become part of the Consent Decree, and shall be fully enforceable pursuant to the terms

of that Decree.

2.10 It is the intent of the United States and Shell that this Agreement take

effect as soon as possible, notwithstanding the absence of a Consent Decree.

Accordingly, paragraph 3.1 provides that this Agreement shall become effective upon

execution by the Army, EPA, DOI, ATSDR and Shell. Unless and until this Agreement

is incorporated into a Consent Decree that has been entered by the Court, it shall be

enforceable.

2.11 Pursuant to Sections 120(f) and 121(f) of CERCLA, 42 U.S.C. §§ 9620(f)

and 9621(f), the State shall have an opportunity to participate in the assessment and

selection of Response Actions undertaken pursuant to CERCLA. Accordingly, this

Agreement provides that the State shall be afforded such an opportunity for all major

phases of the assessment and selection of Response Actions for the Site. _-

2.12 'ne United States and Shell recognize the importance of encouraging the

State to become a Signatory to this Agreement so as to promote an orderly and efficient

process for the State's participation in the selection of Response Actions for the Site.

Accordingly, the State will be given an opportunity to sign this Agreement regardless of

whether there is a settlement of the Arsenal-related litigation brought by the State

against the Army and Shell.

111. EFFECTIVE DATE. PUBLIC COMMENT AND EFFECT ON PRIOR AND

OTHER AGREEMENTS

(i) Effective Date of Agreement

3.1 Upon this Agreement being executed by the Anny, EPA, DOI, ATSDR

and Shell, it shall become effective, binding and enforceable, as of February 17, 1989.

This document shall become binding on the State as provided in paragraphs 10.1 and

10.2.

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3.2 When this Agreement becomes effective, it shall replace and supersede in

its entirety the document attached as Exhibit E to the Consent Decree lodged with the

Court on February 1, 1988, and Exhibit E. to the 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 of this 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 States v. Shell Oil Co., Civil Action No. 83-C-2379), and both

such proposed consent decrees governed the performance of the 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's recent guidance on CERCLA, the Army,

EPA and Shell, through their respective executions of this Agreement, do substitute by

majority vote this Agreement for any still operative provisions of the December 6, 1982,

Memorandum of Agreement.

(ii) Public Review of Agreement

3.5 On or about February 21, 1989, the United States shall publish notice in at

least one major Denver newspaper of general circulation that this Agreement is

available for a 30-day period of public 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 in harmony with the Settlement

Agreement to resolve any ambiguities herein so that, 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 of the 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 of the settlement of United States v.

Shell Oil Co., Civil Action No. 83-C-2329.

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3.10 Prior to the incorporation of this Agreement into a Consent Decree, it

may be amended pursuant to Section YCLV. Upon incorporation of this Agreement into

a Consent Decree, it may be amended ordy pursuant to the process by which the

Consent Decree may be modified, as set forth in such decree.

3.11 If this Agreement is incorporated into a Consent Decree entered by the

Court, in the event of a conflict between this Agreement and the Consent Decree, the

terms and conditions of the Consent Decree shall govern. It is the intent of the

Signatories that any ambiguities in this Agreement are to be interpreted so as to be

consistent with the terms and conditions of any Consent Decree in which this Agreement

may be incorporated.

3.12 '17his Agreement shall be binding on the Signatories irrespective of whether

it is incorporated into a Consent Decree.

IV. THE SITE

4.1 The Site for purposes of this Agreement includes:

(a) The land outlined on the plat attached hereto as Exhibit B,

consisting of the Arsenal and the Off-Post Area; and

(b) Such area in close proximity to the land described in 4.1(a) as is

necessary. for purposes of all Response Actions to remediate the release of hazardous

substances, pollutants or contarrdnants at or from the Arsenal.

V. STATEMENT OF FACTS

5.1 For purposes of this Agreement, the following constitute a summary of the

facts upon which the Agreement is based. None of the f6llowing statements shall be

considered admissions nor are they binding on any Organization other than for the

purposes of this Agreement.

5.2 1be Arsenal is a federal enclave and a former chemical warfare agent and

pesticide manufacturing facility located outside of Denver, Colorado.

5.3 Property for the facility was purchased by the U.S. Government in 1942

and the Arsenal was constructed with the designated mission of producing chemical

munitions for the Armed Forces. Chemicals manufactured by the Army at the Arsenal

have included both blister and nerve agents, incendiary chemicals, and intermediary

chemical compounds for the primary products. 717he Army also blended hydrazine, a

rocket fuel, for the Air Force and conducted a variety of demilitarization operations at

the Arsenal.

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5.4 In 1947, certain portions of the 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 DDT and

Hyman produced several pesticides. Shell Oil Company became a successor to the

interests of Hyman in May 19541. and subsequentially leased a portion of the

manufacturing facilities in the Arsenal South Plants Area for pesticide production.

5.5 As a result of operations by the Army and Shell at the Arsenal, hazardous

substances were spilled, leaked or released into the environment.

5.6 To contain the spread of contamination from the Arsenal, the Army

implemented a Contamination Control Program.

5.7 This program was revised in December 1982, with the adoption of the

Memorandum of Agreement by the Army, EPA, Shell and the State, to include steps for

remediation of contamination at the Arsenal.

5.8 The Army constructed the North Boundary System in 1978 and 1981 to

treat and to control the migration of groundwater contamination off-post beyond the

north boundary of the Arsenal.

5.9 In 1981, Shell constructed the Irondale Boundary System to treat and to

control the migration of groundwater 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 of groundwater contamination off-post beyond the

northwest boundary of the 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 to CERC" for response costs and

natural resource damages at the 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, for response costs and natural resource damages at the Arsenal.

5.12 In October 1984, the Army commenced its RI/FS with respect to on-post

and off-post contamination associated with the Arsenal. Until mid-1987, this activity

took the form of the Army conducting various RI/FS tasks in accordance with CERCLA

and the NCP, and then preparing various draft reports that were forwarded to EPA,

Shell and the State for review 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 by contract, agreement or otherwise arranged

for disposal or treatment, of hazardous substances owned or possessed by Shell, by

-9-
another party or entity at a facility owned or operated by another party or entity and

containing such hazardous substances, from which there is a release, or a threatened

release which caused the incurrence of response costs, of a hazardous substance."

(b) 'Ile United States is the owner of a facility from which there is a

release or a threatened release which caused the incurrence of response costs, of.a

hazardous substance."

5.14 On August 21, 1987, EPA listed most of the Arsenal, except for the

Basin F fenced area, on the NPI, 52 Fed. Reg. 27641 (July 22, 1987). Basin F also has

been proposed for listing on the NPI, 52 Fed. Reg. 27646 (July 22, 1987).

5.15 In January 1988, the Army commenced work, pursuant to CERCLA, on its

Basin F IRA. Since that time, response activity by the Army or Shell has been

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 A Neck Groundwater and

North Boundary System--System Improvements.

5.16 In February 1988, the United States lodged a proposed consent decree in

United States v. Shell Oil Co. and commenced a public comment period on the

proposed decree.

5.17 In March 1988, the Techr&al Program Plan for cleanup of the Arsenal,

pursuant to CERCLA, was adopted by the Organizations. Through. the adoption of the

Technical Program Plan, the Organizations:

(a) Set goals for the issuance of the Army's preferred remedial action

for the Off-Post Operable Unit and On-Post Operable Unit;

(b) Identified the Products or Subproducts to proceed without

substantial modification, those that are sufficiently completed as of this date, and those

that require such substantial modification as to be designated New Products or

Subproducts.

(c) Identified any new Products or Subproducts 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 for the completion of IRA Decision

Documents;

- 10-
(g) Identified RI/FS Deadlines;

(h) Identified Schedules; and

(i) Identified and resolved any previously identified or new issues which

solely relate to the general conduct of the RI/FS.

5.18 -On June 7, 1988, the United States and Shell moved for entry of a

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 longer was

an active military installation and that the sole mission of the Army at the Arsenal is the

cleanup of the Site pursuant to CERCLA.

5.20 In the absence the of entry of the consent decree, the Army, EPA, DOI,

ATSDR and Shell executed this Agreement in order to preserve the utility of the work

plans and schedules already adopted for the investigation and remediation of the

contamination at the Arsenal, and to preserve the related arrangements for the recovery

of Response Costs and Natural Resource Damages.

VI. CONCLUSIONS OF LAW

6.1 For purposes of this Agreement, the following constitute the conclusions of

law upon which this Agreement is based. None of the following conclusions shall be

considered admissions nor are they binding on any Organization other than for the

purposes of this Agreement.

6.2 Based on the preceding Statement of Facts, the Signatories make the

following conclusions of law for purposes of this Agreement:

(a) The Army is a "person" within the meaning of CERCLA Section

101(21), 42 U.S.C. § 9601(21);

(b) The Army is the "owner or operator" of the Arsenal for purposes of

CERCLA Section 101(20), 42 U.S.C. § 9601(20);

(c) Shell is a "person" within the meaning of CERCLA Section 101(21),

42 U.S.C. § 9601(21);

(d) The Arsenal constitutes a "facility' within the meaning of CERCLA

Section 101(9), 42 U.S.C. 9601(9);
(e) From 1944 to the present, "hazardous substances," as defined in

Section 101(14) of CERCLA, 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

to be a "release" of hazardous substances into the envirorument, within the meaning of

CERCLA Sections 101(22), 104 and 107, 42 U.S.C. 9601(22), 9604 and 9607, at the

Site-,

(g) The Army is the operator of the Arsenal facility from which there

was a release or a threatened release which caused the incurrence of costs for removal

or remedial action costs for any health assessment or health effects study and damages

for loss of natural resources, within the meaning of CERCLA Section 107(a)(1),

42 U.S.C. § 9607(a)(1);

(h) Shell is a person who by contract, agreement or otherwise arranged

for disposal or treatment, or arranged with a transporter for transport for disposal or

treatment, of hazardous substances owned or possessed by Shell at the Arsenal facility

from which there was a release or a threatened release which caused the incurrence of

costs for removal or remedial action, costs for any health assessment or health effects

study and damages for loss of natural resources, within the meaning of CERCLA

Section 107(a)(3), 42 U.S.C. § 9607(a)(3);

(i) Ile Arsenal is a "federal facilitywithin the meaning of CERCLA

Section 120, 42 U.S.C. § 9620;

0) The Arsenal is a facility which is substantially on t he NPIL with the

balance proposed for listing on the NPL;

(k) The Site is subject to the cleanup standards in Section 121 of

CERCLA, 42 U.S.C. § 9621 and the provisions of the NCP.

VIL DETERMINAIIONS

7.1 For purposes of this Agreement, the Mowing constitute the

determinations upon which this Agreement is based. None of the following

determinations shall be considered admissions nor are they binding on any Organization

other than for the purposes of this Agreement.

7.2 Based on the preceding statement of facts and conclusions of law, the

United States has determined and Shell does not contest for purposes of this Agreement

that:

(a) Tle Site is subject to the requirements of CERCLA

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 for EPA, DOI and ATSDR to enter

into this Agreement with the Army and Shell to establish the process for the

remediation of hazardous substances at the Site and the performance of any related

health assessment or health effects study.

(e) It is appropriate and desirable for DOI to enter into this Agreement

with the Army and Shell for the performance of a Natural Resource Damage

Assessment for the Site.

VIII. ROLE OF DOI

8.1 DOI shall continue to advise and assist the Lead Agency and Lead Party

with respect to Products, Subproducts or Other Deliverables relating to the biota portion

of the RI/FS and the IRAs for the On-Post and Off-Post Operable Units. DOI shall

also provide similar advice and assistance to the Lead Agency or Lead Party for other

Operable Units.

8.2 DOI shall receive from the Lead Agency or Lead Party:

(a) Timely advance notice of each meeting concerning biota Products,

Subproducts or Other Deliverables and IRAs;

(b) A copy of each document transmitted by the Lead Agency or Lead

Party to the Organizations concerning biota Products, Subproducts or Other Deliverables

and IRAs;

(c) An opportunity to participate in each meeting concerning biota

Products, Subproducts or Other Deliverables and IRAs; and

(d) An opportunity to comment in writing on any biota portion of an

IRA document or a draft Technical Plan, Product or Subproduct report, Other

Deliverable or ROD, and to review such comments submitted by the Organizations;

(e) Timely notice of all proposals or actions involving natural resources

under DOI Trusteeship.

13 -
8.3 DOI shall provide copies of its written comments concerning the biota

portion of the RI/FS for each Operable Unit to the Organizations.

8.4 In the event of a dispute concerning the biota portion of an IRA or

RI/FS, a representative of DOI may attend and participate (but shall not have a vote)

in any relevant meeting of the RNIA Committee or the RMA Council. A dispute

concerning any of these matters may be raised to Dispute Resolution by any

Organization or DOI. If DOI invokes Dispute Resolution, DOI shall make a timely

submission in writing of its views on the matter in dispute to the RMA Council, SAPC

or FRC. A representative of DOI may attend and participate (but shall not have a

vote) in any Dispute Resolution meeting of SAPC 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 of EA-related Products, Subproducts, and Other

Deliverables and particularly in connection with the exposure assessment, toxicity

assessment and risk characterization portion of the EA and the IRAs.

9.2 ATSDR shall receive from the Lead Agency or Lead Party:

(a) Timely advance notice of each meeting concerning an EA or IRA;

(b) A copy of each document transmitted by the Lead Agency or Lead

Party to the Organizations concerning an EA 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 of a 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 of its written comments concerning an IRA

or the EA for each Operable Unit to the Organizations.

9.4 In the event of a dispute concerning any relevant aspect of an IRA or EA,

ATSDR shall be afforded an opportunity, at its election, to submit in 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 any relevant meeting of the RMA Committee or the

RMA Council. If a dispute concerning any of these matters is raised pursuant to

Dispute Resolution, ATSDR shall be afforded an opportunity to update its earlier

14 -
statement of its views 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 or any

Health Effects Study. ATSDR's Health Assessment or HealthX-ffects Study shall be

governed by Section XLL

X. ROLE OF THE STATE

10.1 Prior to the effective date of this 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). On the effective date of this

Agreement, the State's participation is expected to be consistent with this Agreement.

Regardless of whether the State becomes a Signatory, the State shall have the rights of

an Organization under this Agreement subject to the following conditions:

(a) The State may attend meetings of the RMA Council, the SAPC and

the FRC only after it has agreed in writing 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 or to any extent not authorized or required by law, any

Confidential Information received by, or made available to it in connection with any

activities performed pursuant to this 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 of the

agreement attached hereto as Exhibit C. The form attached as Exhibit C shall be

replaced by an executed copy of that 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 it becomes a Signatory.

XI. LEAD AGENCIES

11.1 For purposes of this Agreement, the Army is the Lead Agency for the OnPost Operable Unit and the Off-Post Operable Unit.

11.2 For purposes of this Agreement, the Army or EPA may be the Lead

Agency for any other designated Operable Unit as provided in Executive Order 1.2580 or

any amendments or modifications thereof.

XII. OPERABLE UNM

12.1 it is the present intent of the Signatories that there shall be:

15
(a) The On-Post Operable Unit; and

(b) The Off-Post Operable Unit.

Nothing in this Agreement shall preclude the designation of one or more additional Operable Units upon unanimous agreement of the Organizations. At the request of any Organization, the question of whether a new Operable Unit will be designated shall be subject to Dispute Resolution. In Dispute Resolution on the issue of whether the designation of a new Operable Unit is appropriate, such designation shall not be considered appropriate if it will prevent or substantially delay the design or implementation of an IRA, the On-post Operable Unit or the Off-Post Operable Unit.

12.2 The selection of the Final Response Action for each Operable Unit shall be:

(a) Preceded by RI/FS;

(b) Set forth in a ROD, which may include more than one technology as part of the 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 with the terms of the Settlement Agreement or any Consent Decree in which this document may be incorporated.

XIII. ROLE OF COUNSEL

13.1 References in this Agreement to actions being taken in consultation with counsel, or to counsel attending certain meetings, shall not be deemed to preclude consultation with counsel, or counsel attendance at meetings, with respect to any other action taken pursuant to this Agreement.

XIV. DEFR4MONS

14.1 As used in this Agreement, certain terms shall have the meanings specified in paragraph 14.4. To the extent that these definitions are inconsistent with the

definitions which appear in any Consent Decree incorporating this Agreement, the

definitions in paragraph 14.4 shall control for purposes of this Agreement unless

expressly stated otherwise in such Consent Decree.

16-
14.2 The meaning of any term used in this Agreement which is not defined in

paragraph 14.4, but which is defined in Section 101 of CERCLA, 42 U.S.C. § 9601, shall

be as defined in CERCLA.

143 The term "day" as used in this Agreement shall mean "calendar day."

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 or 31.2.

(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

thereof or supplements thereto.)

(3) "ARAR" means a standard, requiremeni, criterioh br li'mitation as

defined in CERCLA Section 121(d)(2), 42 U.S.C. § 9621(d)(2).

(4) "Army" means the United States Department of the Army and any

successors or assigns, and any agency, command, office or other subdivision thereof; and

includes the officers, members, employees and agents of the Army when acting within

the scope of their authority.

(5) "Army-Only Response Costs" means a1l Response Costs for the

Response Actions listed as Army-Only Response Actions on Exhibit C to the Settlement

Agreement.

(6) "Arsenal" means all United States property known as the Rocky

Mountain Arsenal and which is described more particularly in Exhibit A to this

Agreement.

(7) "ATSDR" means the United States Agency for Toxic Substances and

Disease Registry and any successors or assigns, and any Region, Office or subdivision

thereof; and includes the officers, employees and agents of ATSDR when acting within

the scope of their authority.

(8) "Basin F MOU" means the "Memorandum of Understanding

between the Department of the Army and Shell Oil Company with respect to the

Basin F Interim Action," executed by Shell and the Army on September 26 and 27, 1986,

respectively (and any amendments or modifications thereof or supplements thereto).

(9) "CAR" means a contamination assessment report which is part of a

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 of approximately 30 percent of the design and engineering work for a

discrete portion of a Final or Supplemental Response Action and which sets out the

plans for completion of such 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) of CERCLA, 42 U.S.C.

S 9604(e)(7)(C), or marked or stamped by an Organization or a contractor with the

legend "Confidential Information" that concerns or relates to the trade secrets, processes,

operations, style of work, or apparatus; or to the confidential statistical data, amount or

source of any income, profits, losses, or expenditures of any person, firm, partnership,

corporation, or association; and all other records, reports, or information that an

Organization or a contractor is required by law or contract to maintain confidential.

(13) "Consent Decree" means any agreement approved and entered by

the Court which wholly or partially resolves litigation concerning the Arsenal and which

incorporates this Agreement and specifically makes this Agreement a part thereof.

(14) "Coordinator" means the Army employee designated to serve on the

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 by the Army pursuant to

paragraph 31.4.

(17) "Deadlines" means IRA Deadlines, RI/FS Deadlines, Supplemental

Response Action Deadlines, Design Deadlines and Implementation Deadlines.

(18) "Design Deadline" means any timetable or deadline for completion

of a scope of work or a final design document for an Operable Unit, as set forth in the

ROD for such Operable Unit.

(19) "Design Scope of Work" 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 of a Final or a Supplemental Response Action. Such a document may

provide the basis for, and be incorporated in, a contractual agreement between a design

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.

('2 1 ) "DOD" means the United States Department of Defense and any

successors or assigns, and any office or subdivision thereof; and includes the officers,

employees and agents of DOD when acting within the scope of their authority. .

. (22) "DOI" means the United States Department of the 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 of DOI when acting within the scope of their authority.

(23) "DOI Trusteeship" means natural resources under the management

and protection of DOI, 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 of a RI/FS and

includes:

(i) Contaminant identification (i.e., site characterization and

selection of target contaminants and identification of environmental transport and fate

mechanisms) for such contaminants;

(ii) Exposure assessment (i.e., identitication of exposure pathways

and extent of exposure of human and envirom-nental populations at actual or potential

risk);

(iii) Toxicity assessment (i.e., evaluation of the toxicological

properties of target contaminants); and

(iv) Risk characterization (i.e., determination of the likelihood

and extent of any harm).

(25) "Emergency Action" means an action conducted by the Army

pursuant to Section XXM of this 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 EPA when acting within the scope of their

authority.

19.
(27) "EPA Certification" means the certification by EPA of completion

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 of at least 95 percent of the design and engineering work for a discrete

portion of a Final or Supplemental Response Action and that includes the final drawings

and specifications and the final design analysis and cost estimate for the implementation

of that portion of the 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 of the ROD, and all changes, if any, required as a result of judicial review are

made. The process of Finalization is complete when either the time for judicial review

has passed or judicial 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 of their respective response

costs claims.

(32) "Force Majeure" means any event arising from causes beyond the

control of an Organization which causes a delay in or prevents the performance of any

obligation under this Agreement. "Force Majeure" includes but is not limited to: acts of

God; fire; war; insurrection; civil disturbance; explosion, unanticipated breakage or

accident to machinery, equipment or lines of pipe, . despite diligent maintenance; adverse

weather conditions which could not be reasonably anticipated; unusual delay in

transportation; earthquake; restraint by court order or order of public authority; inability

to obtain, at reasonable cost and after exercise of reasonable diligence, any necessary

authorizations, approvals, permits or licenses as a result of the action or inaction of any

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 of reasonable diligence; and insufficient availability of

appropriated funds, if the 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 of the Organization affected thereby, but shall not

include increased costs or expenses of Response 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 of the Army (Installations and

Logistics)(or other official of comparable authority and responsibility); the Administrator

-20-
of EPA (or other official of comparable authority and responsibility); the Governor of

Colorado; and the President of Shell.

(34) "FS" means a feasibility study, as defined in the NCP, which is

performed as part of an Operable Unit.

(35) "Health Assessment" means an evaluation by ATSDR of data and

information on the release of hazardous substances at or from the Site in order to:

assess any current or future impact on public health, develop health advisories or other

recommendations; and identify studies of actions 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 of hazardous substances released at

or from 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 on the Site with respect to a Response Action addressed in a

Final Decision Document.

(38) "IRA" means an interim response action which has been determined

by the Organizations to be necessary and appropriate for the Site.

(39) "IRA Decision Document" means the document issued by the Army

which reflects the objectives and rationale for an IRA.

(40) "IRA Deadline" means any date for issuance of a draft IRA

Decision Document, as reflected in the Technical Program Plan, or any timetable or

deadline for completion of an IRA, as reflected in the appropriate IRA Decision

Document or IRA Implementation Document.

(4 1) "JARDF' means the Joint 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) "Lead Agency" 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 or perform one or more IRAs (or portions

thereof).

(45) "Natural Resource Damages" means the amount of money to which

the United States is entitled as compensation for injury to, destruction of, or ioss of

natural resources resulting from a release of hazardous 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 of Natural Resource Damages developed in accordance with the

requirements and procedures of any applicable regulations promulgated by DOI

pursuant to Section 301(c) of CERCLA 42 U.S.C. § 9651(c), and the requirements and

procedures of Section 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 this Agreement.

(49) "New Product or Subproduct" means a Product or Subproduct 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 that portion of the Site that is within the

area bounded by 80th Avenue, the South Platte River, Second Creek and the northerly

and northwesterly boundaries of the Arsenal, together with the surface waters of Barr

Lake and the surface waters of the 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 any event, only the area where hazardous substances, pollutants or

contaminants from the Arsenal are found, and which is subject to remedial 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 for purposes of carrying out all Response Actions resulting from the

-22-
release or threat of release of hazardous substances, pollutants or contaminants at or

from the Arsenal.

(53) "Off-Post ROD" means the ROD for the Off-Post Operable Unit.

(54) "On-Going" or "On-Going Subproduct" 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 to respond to contamination within the Arsenal.

(56) "On-Post ROD" means the ROD for the On-Post Operable Unit.

(57) "Operable Unit" means a discrete portion of the 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) "Other Deliverable" means any document, other than a Product or

Subproduct report, which presents the results of any studies or reports prepared as part

of a RI/FS. Examples of "Other Deliverables" include Phase 2 CAR Data Addenda,

Modeling Reports, Shell's Biota Report(s), Pilot TreatabUity Test Plans, Shell's Sewers

Report(s), Reports conceming the presence of Bald Eagles at the 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 not reflected in

the Technical Program Plan.

(61) "Product" means one of the primary aspects of an Operable Unit for

which a Product report is prepared. The term includes an On-Going or New Product.

(62) "Product Manager" means the employee of the Lead Agency or

Lead Party who is designated in accordance with paragraph 24.5, to have day-to-day

responsibility for the development of a Product and the development of any related

Subproduct or Technical Plan.

(63) "QA!d/QC'd" means quality assured/quality controlled.

-23 -
(64) "Report of Assessment" means a report of the assessment of Natural

Resource Damages, consisting of the 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 of any

applicable regulations promulgated by DOI pursuant to Section 301(c) of CERCLA

42 U.S.C. § 9651(c), and the requirements and procedures of Section YCLIL

(65) "Representative" or "Committee Representative" means a

representative of an Organization on the RMA Committee.

(66) "Response" or "Response Action" has the same meaning as

"Respond" or "Response" as defined by Section 101(25) of CERC" 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/FS Deadlines" means the dates which are identified pursuant to

paragraphs 2.0.2(g), 26.6 and 26.7 and are appended hereto, and are enforceable

pursuant to paragraphs 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 to paragraphs 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 of Decision for an Operable Unit. The

term does not include an IRA Decision Document.

(75) "SAPC'means the Steering and Policy Committee which shall

consist of the following members: the Army Deputy for Envirortment, Safety and

Occupational Health (or other official of comparable authority and responsibility); the

Regional Administrator of EPA, Region 8 (or other official of comparable authority and

-24-
responsibility); the Director of the Colorado Department of Health (or other official of

comparable authority and responsibility); and a Vice President of Shell.

(76) "SAR" means a Study Area Report, i.e., a report 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 to this Agreement or the Technical Program Plan which governs

the conduct of portions of a RI/FS.

(78). "Settlement Agreement" 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 thereof and supplements thereto.)

(79) "Shell" means Shell Oil. Company and any successors or assigns, and

any office or subdivision thereof, and includes the subsidiaries of Shell and the officers,

employees and agents of Shell when acting within the scope of their authority.

(80) "Signatory" means any Organization that executes this Agreement.

(81) "Site" has the meaning set forth in paragraph 4.1.

(82) "State" means the government of Colorado and any successors or

assigns, and any department, division, agency, office or other subdivision thereof, and

includes the officers, employees and agents of the State when acting within the scope of

their authority.

(83) "Subproduct" means a secondary aspect of an Operable Unit for

which a Subproduct report is prepared and which is used in preparation of a Product.

The term includes On-Going and New Subproducts.

(84) "Supplemental Response Action" means a Response Action for the

Site selected after finalization of the On-Post ROD. The term does not include either

an Emergency Action, or a modification of a ROD in accordance with paragraph 25.16.

(85) "Supplemental Response Action Plan" means the plan that shall

govern development of a RJ/FS and ROD for a Supplemental Response Action, as

provided in Section XXXffl-

(86) "Supplemental Response Action Deadline" means any timetable or

deadline for completion of a RI/FS for a Supplemental Response Action or for

selection of a ROD for a Supplemental Response Action, as developed pursuant to

paragraph 33.4.

-25 -
(87) "Technical Plan" means a reasonably detailed plan for the

development of a Product or SubprodUCt.

(88) "Technical Program Plan" or "Plan" means the document that sets

forth RI/FS Deadlines, deadlines for completion of IRA 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 of the

United States when acting within the scope of 1heir authority.

XV. RNIA COMMITTEE

15. t Upon completion of the Technical Program Plan, the Army designated an

employee to serve on the RMA Committee as the Coordinator for the On-Post and OffPost Operable Units. The Coordinator shall be responsible on a daily basis for assuring

the Army's implementation of the 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 of this Agreement, the Technical Program Plan, and

the Settlement Agreement.

15.2 Upon the completion of the Technical Program Plan, the other

Organizations each designated an employee to serve on the RMA Committee as its

Committee Representative. Each Representative shall be responsible on a daily basis

for ensuring his or her entity's fulfillment of its responsibilities regarding a RI/FS, the

IRAs, Final Response Actions, Supplemental Response Actions and Emergency Actions

in accordance with the terms of this Agreement, the Technical Program Plan and the

Settlement Agreement. The RMA Committee shall consist of the Coordinator and the

Committee Representatives. A representative of DOI may attend and participate in any

meeting of the Committee (but shall not vote).

15.3 The Organizations shall transmit all written communications between each

other after the effective date of this Agreement with respect to a RI/FS, the IRAs, Final

Response Actions, Supplemental Response Actions and Emergency. Actions or related

matters concerning the Arsenal, through the Coordinator and Committee

Representatives, except for policy matters raised directly with SAPC, communications

between attorneys or documents excluded by paragraph 21.1(a).

15.4 The RMA Committee shall meet informally approximately once each

month. Although the Lead Agency and the Lead Party have ultimate responsibility for

meeting their respective Deadlines, the RMA Committee shall endeavor to assist in this

-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 of all environmental

monitoring at the Site overseeing the performance of the RI/FS, the IRAs, Final

Response Actions, Supplemental Response Actions or other Response Actions,

reviewing the progress of the Technical Program Plan and the status of Technical Plans,

Products, Subproducts, and Other Deliverables, attempting to resolve disputes .

informally, making necessary and appropriate adjustments to Schedules, advising the

RMA Council whenever a Deadline 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 of the Organizations.

15.6 Special meetings of the RMA Com-mittee shall be held upon majority

agreement of the Organizations.

XVI. RMA COUNCI

16.1 Within seven days of the completion of the T echnical Program Plan, the

Organizations each designated an employee to serve as a member of the RMA Council

for the On-Post and Off-Post Operable Units.

16.2 The designee of the Army shall serve as the chairman of the RMA

Council for the On-Post and Off-Post Operable Units.

16.3 The Coordinator and Committee Representatives may also serve as

members or alternate members of the RMA Council and may attend and participate in

any meeting of the RNLA Council. Counsel for the Organizations may, subject to

paragraph 13.1, also attend and participate in RNIA Council meetings. A representative

of DOI may attend and participate in meetings of the Council (but shall not vote).

16.4 'Me chairman shall schedule regular meetings of the RMA Council

approximately every three months, shall transmit a proposed agenda at least 20 days in

advdnce of such meeting and shall transmit a final agenda at least 10 days in advance of

such meeting which shall incorporate any additional matter that a member requests be

included. Regular meetings shall be for the purpose of reviewing and commenting on

the progress under the Technical Program Plan and on the status of all Technical Plans,

Product and Subproduct reports, and Other Deliverables, and overseeing the

performance of the RI/FS, the IRAs, Final Response Actions, Supplemental Response

Actions or other 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 on the agenda.

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16.5 Special meetings of the RMA Council shall be held at the request of any

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 of the Technical Program Plan, the Organizations each

designated an employee to serve as a member of the SAPC for the On-Post and OffPost Operable Units. Ile SAPC shall consist of the following members: for the United

States, the Army Deputy for Environment, Safety and Occupational Health (or other

official of comparable authority and responsibility) and the Regional Administrator of

EPA Region 8 (or other official of comparable authority and responsibility); for the

State, the Director of the Colorado Department of Health (or other official of

comparable authority and responsibility); and for Shell, a Vice President of Shell. A

representative of DOI may attend and participate (but shall not vote).

17.2 The function of the SAPC shall be (a) to decide significant policy issues as

they relate to assessment, selection, design and implementation of Response Actions at

or associated with the Site and (b) to resolve disputes relating to assessment, selection,

design, and implementation of Response Actions at or associated with the Site when

such disputes have not been resolved at the RMA Council level and which have been

elevated to the SAPC for resolution.

17.3 Unless otherwise agreed by all members of the SAPC, the SAPC shall

meet approximately quarterly at a time and location to be determined by the SAPC. At

the quarterly meetings, the SAPC shall address any policy issues or other matters placed

on the 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. If a

special meeting of the SAPC occurs near the time of a regularly scheduled quarterly

meeting, the SAPC may agree to cancel or postpone the quarterly meeting, as

appropriate.

17.4 The EPA member of the SAPC, or his or her designated representative,

shall chair all meetings of the SAPC. EPA shall prepare an agenda pursuant to the

recommendation of the 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 shall be fully authorized to

make conuratments and take positions on behalf of the Organization he or she

represents.

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XVIII. FINAL REVIEW COM?Vl1TTEE_("FRC'.)

18.1 On the completion of the Technical Program Plan, the Organizations each

designated an employee to serve as a member of the FRC for the On-Post and Off-Post

Operable Units. The FRC shall consist of the following members: for the United

States, the Assistant Secretary of the Army (Installations and Logistics) (or other official

of comparable authority and responsibility) and the Administrator of EPA (or other

official of comparable authority and responsibility) who shall chair meetings of the FRC;

for the State, the Governor of Colorado; and for Shell, the President of Shell. A

representative of DOI may attend and participate in meetings of the FRC (but shall not

vote). 1

18.21 FRC meetings shall occur only as needed ta resolve disputes or policy

issues. The Organizations may each bring leg4l and technical advisors of their choosing

to FRC meetings unless otherwise agreed by Shell, the State and the United States. A

FRC member who cannot attend a meeting may designate an alternate representative,

who shall be fully authorized to make commitments and take positions on behalf of the

Organization he or she represents.

XIX. TECHNICAL REVIEW COMMITTEE ('-MC-)

19.1 Within 21 days of the completion of the Technical Program Plan, the

Army, in consultation with the other Organizations, designated, pursuant to 10 U.S.C.

§ 2705(c) and paragraph 19.6 the following to serve as members of the TRC:

(a) The chairman of the RMA Council, who shall serve as the Army's

representative;

(b) A representative of EPA (as designated by EPA);

(c) A representative of the State (as designated by the State);

(d) A representative of Adams County;

(e) A representative of the City and County of Denver;

(f) A representative of Commerce City;

(g) A representative of the South Adams County Water and Sani -tation

District;

(h) A representative of the Tri-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 of the RMA Council shall serve as the chairman of all TRC

meetings. A representative of each of Colorado's United States Senators and Members

of the United States House of Representatives, Shell, and counsel for the United States,

Army, EPA, DOI, Shell and the State, may each attend and participate in any TRC

meeting as ex-officio members of the TRC.

19.3 The purpose of the TRC is to afford a forum for cooperation between the

Army and concerned local officials and citizens and provide a meaningful opportunity

for the members of TRC to become informed and to express their opinion about

significant aspects of the RI/FS.

19.4 'Me chairman shall schedule regular meetings of the TRC approximately

every three months. Regular meetings of the TRC shall be for the purpose of reviewing

progress under the RI/FS Plan and discussing other matters of interest to the TRC.

19.5 Special meetings of the TRC shall be held at the request of the Army or

EPA.

19.6 To avoid unnecessary delay and administrative procedures, the

Organizations intend that the appointment of the TRC and the performance of its

activities need not comply with 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 to the TRC every three months information

concerning the supplementation of the Administrative Records which occurred during

that period.

XX. ADOPTION OF TECHNICAL PROGRAM PLAN

(i) Purpose-of Technical Program Plan

20.1 The Organizations have developed a Technical Program Plan to govern the

completion of the RI/FS for the On-Post and Off-Post Operable Units.

20.2 The Technical Program Plan:

(a) Has goals for the issuance of the Army's preferred remedial action

for the Off-Post Operable Unit and for the issuance of the Army's preferred remedial

action for the 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 of the date of the Technical Program Plan

or (3) require such substantial modification as to be 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 of IRA Decision

Documents;

(g) Identifies RI/FS Deadlines for the milestones listed in

paragraph 26.7;

(h) Identifies Schedules; and

(i) Avoids addressing specific issues which can be better resolved in the

context of the specific Technical Plans, Products, Subproducts, Other Deliverables,

RI/FS Reports and RODs.

20.3 The Technical Program Plan also addresses and resolves previously

identified and new issues which solely relate to the general conduct of a R1./FS that

were clearly raised by an Organization during the course of drafting or commenting on

the draft Technical Program Plan.

(ii) Development of Drafts of Technical Program Plan

20.4 Representatives of the 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 Army prepared 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 and comment.

-31 -
20.7 Within 50 days of receiving the draft Technical Program Plan, the other

Organizations transn-Litted their written comments on the 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 of the close of the 50-day period specified in

paragraph *20.7, the Army transmitted to SAPC (and to the other Organýizations):

(a) A draft final Technical Program Plan;

(b) Copies of the written comments of the other Organizations;

(c) The Army's response to timely written comments received from the

other Organizations; and

(d) The Army's response to Shell's proposals to be Lead Party.

(iii) Approval of Technical Prop-ram Plan

20.9 Within approximately 15 days after receipt of the draft final Technical

Program Plan with the comments and responses, SAPC met to decide the unresolved

issues, to reconcile any inconsistencies and to direct the finalization of the 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 issues were placed on

the agenda for the SAPC meeting. In reviewing the'draft final Technical Program Plan

and in deciding the unresolved issues, SAPC considered the impact of each of its

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 of the SAPC review, it is deemed to have

approved the Technical Program Plan.

20.11 If within 20 days of its initial meeting SAPC could not have decided a

dispute concerning the Technical Program Plan, any of the Organizations could have

elevated the issue to the FRC by notifying the other Organizations in writing of such

intent within 5 days of the close of SAPC's 20-day review period. FRC would have had

20 days thereafter to resolve the dispute. The decision of FRC 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 Plan to

make it consistent with the decision of SAPC (or FRC, if FRC resolved a dispute

concerning the Plan). After revising the Technical Program Plan, the Army transmitted

a copy of the Technical Program Plan to SAPC, which approved the Technical Program

-32-
Plan upon its detern-lination that the Technical Program Plan is consistent with the

decision of SAPC (or FRC, if FRC had resolved a dispute concerning the Plan).

20.13 Following SAPC or FRC approval of the Technical Program Plan, copies

of the 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 of Deadlines

20.14 If subsequent to the approval of the Technical Program Plan, an

Organization determines that an extension of an RI/FS Deadline is warranted for any

reason, it may request such an extension in accordance with paragraphs 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 for review and approval.

(v) Amendment of the Technical Program Plan

20.16 Within 90 days of the adoption of this Agreement, an Organization may

seek to amend the Technical Program Plan as necessary to incorporate changes or

requirements that result from the adoption of this Agreement or the 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 of the Plan, pursuant to paragraph 20.16, any

Organization may invoke Dispute Resolution to determine if such amendment shall

occur.

20.18 The proponent of a proposed amendment of the Plan shall prepare the

text of the proposed amendment.

XXI. EXCHAN E AND PRESERVATION OF INFORMAMON

21.1 Prior to the effective date of this Agreement, Exhibit E to the February 1,

1988, and June 7, 1988, proposed consent decrees governed the exchange and

preservation of information by the Signatories. On the effective date of this Agreement,

this Section shall control the exchange and preservation of information by the

Signatories. On this Agreement becoming binding on a 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 of review 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 or test data

previously obtained or generated by that Signatory or its 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 of the Signatories,

which retain their privileged or work product status because of their occurrence in the

context of the joint or cooperative conduct of litigation;

(iii) Communications which are subject to the deliberative process

privilege among or between personnel of the Army, EPA or the State and their

respective managements, and communications of a similar nature between Shell

personnel and Shell management;

(iv) Post-contract award communications between the Army, EPA

or Shell and their respective contractors concerning the performance of work by such

contractors (but not contract change orders, modifications, amendments or similar

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 may prove 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 the Army or EPA to the extent that these are

confidential as provided by the 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 or any other person

submitting bids or proposals to Shell, except to the extent that disclosure is required by

law.

(vii) Communications between the Army or EPA with the staff,

members or committees of Congress, subject however, to the right of any Organization

to obtain information which is otherwise available by law;

(viii) Documents generated for purposes of settlement

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 of this

provision, "Confidential Information" means all records, reports, or information

designated in accordance with Section 104(e)(7)(C) of CERCLA, 42 U.S.C.

§ 9604(e)(7)(C), or marked or stamped by an Organization or a Contractor with the

legend "Confidential Information" that concems or relates to the trade secrets, processes,

operations, style of work, or apparatus, or to confidential statistical data, amount or

source of any income, profits, losses, or expenditures of any person, firm, partnership,

corporation, or association; and all other records, reports, or information that an

Organization or Contractor is required by law or contract to maintain confidential.

(i) Signatories shall treat as highly confidential, and not publish,

divulge, disclose, or make known in any manner or to any extent not authorized or

required by law, any Confidential Information received by, or made available to, them

pursuant to this Agreement. If the State is not a Signatory, no other Organization shall

be required to provide any Confidential Information to the State hereunder until the

State enters into a confidentiality agreement with the Organizations by which the State

agrees to maintain the confidentiality of such Confidential Information on the terms set

forth in this subparagraph 21.1(b).

(ii) Nothing herein shall prevent an Organization from using

Confidential Information of the others in connection with Dispute Resolution or judicial

review; provided that the Organization gives the others at least 10 days prior written

notice of its intent to use the Confidential Information for such purpose and takes all

reasonable steps to limit to the maximum extent practicable the disclosure of such

Confidential Information.

(iii) The provisions of this subparagraph 21.1(b) shall not limit

(A) any rights any Organization may otherwise have under the Consent Decree or

applicable law to obtain or use any Confidential Information, or (B) any remedies any

Organization may have under applicable law or contract for disclosure or use by the

others of any Confidential Information.

(c) Provide the others on a regular basis with at least seven daysadvance notice (by location and general description of the type of activity) of all

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" of all samples taken in connection with a RI/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'd data for such sampling or tes -results within 30 days of the completion of the quality assurance /quality control 'process; or

(ii) The "raw" sampling or testing data, if no QA'd/QC'd data

are transmitted to the others within 150 days of the date when the sample was taken or the test occurred, except where there is a showing of good cause and agreement by all of the Signatories that additional time shall be afforded for the transmittal of the

"QA'd/QC'd" data; and

(f) Preserve for at lease five years from the issuance of the final ROD, irrespective of any document retention policy to the 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) Any IRA or Final Response Action.

21.2 The documents described in subparagraph 21.1(f) shall be preserved at the

JARDF. The expense of operating the JARDF shall be accounted for by the Army and

Shell in accordance with the Financial Manual. After the conclusion of the 5-year period, Custodian shall notify the Signatories at least 60 days in advance of when it

intends to destroy such documents. If any 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 may order.

21.3 The disclosure of all or any of a discrete portion of an otherwise privileged document described in subparagraph 21.1(a), or the entirety of such document(s), shall

not constitute a subject matter waiver or a waiver of an otherwise valid privilege claim

for the undisclosed portion of that document or for any undisclosed documents of that

type.

21.4 Nothing in paragraph 21.1 shall be construed to deny any person access to

a document the disclosure of which would be required pursuant to the Freedom of

Information Act, 5 U.S.C. § 552, or the applicable provisions of Colorado Revised

Statutes, "Public Records," 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 of this Agreement, the February 1, 1988, and

June 7, 1988, proposed consent decrees governed the assessment and implementation of

IRAs. On the effective date of this Agreement, this Section shall control the assessment

and implementation of IRAs. The Organizations agree that the IRAs listed below are

necessary and appropriate:

(a) Groundwater Intercept and Treatment System North of the Arsenal:

This action consists of the construction of one or more pump and treat systems off-post

of the Arsenal following assessment and selection, as part of the IRA.

(b) Improvement of the North Boundary System and Evaluation of all

Existing Boundary Systems: This action consists of (i) assessment of the need for

improvements (such as expansion) to the North Boundary System and assessment,

selection, and implementation of any necessary improvements to the system, (ii)

assessment of the other two boundary systems (Irondale and Northwest) on the Arsenal

and assessment, selection and implementation of any appropriate improvements to these

systems as necessary, and (iii) implementation of the groundwater recharge trenches to

increase the rate of reinjection of treated groundwater in connection with the North

Boundary.

(c) Groundwater Intercept and Treatment System North of Basin F:

This action consists of assessment and selection of a groundwater intercept and

treatment system north of Basin F and implementation of such a system as necessary.

(d) Closure of Abandoned Wells on the Arsenal: This action consists

of sampling, plugging, and closing of wells 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 1987 by the United States, the State and

Shell.

(e) Groundwater Intercept an ' d Treatment System in the Basin A Neck

Area: This action consists of design and construction of an alluvial groundwater

intercept and treatment system in the Basin A Neck area on the Arsenal.

(f) Basin F Liquids, Sludges, and Soils Remediation: This action,

which is on-going and will continue, consists of remediation of contaminated liquids,

sludges, and soils from and under Basin F. Once liquids are removed to temporary

storage tanks (constructed by Shell pursuant to the Basin F MOU), the soils and sludges

remaining in the basin and those down to a specified depth beneath the basin liner will

be solidified as necessary and transported to a temporary holding area, where they will

be properly stored prior to treatment or disposal. Treatment or disposal of soils and

-37-
sludges shall be undertaken either as a subsequent phase of this IF-A or as part of the

Final Response Action for the On-Post Operable Unit.

(g) Building 1727 Sump Liquid: This action consists of remediating

contaminated liquid in the Building 1727 sump to mitigate any remaining threat of

release of liquids from this sump.

(h) Closure of the Hydrazine Facility: This action consists of (i)

treatment and disposal of pretreated liquids in tanks used for storage of waste products

from the blending of rocket fuels and (ii) dismantling and disposal of all remaining

above-gTound structures associated with the hydrazine facility.

(i) Fugitive Dust Control: This action consists of selection and

implementation of a dust suppressant program as expeditiously as possible.

6) Sewer Remediation: This action consists of remediation of certain

priorirv portions of the sanitary sewer to minimize this potential pathway of contaminant

flow. Iiie priority list of sewe'r system segments for this action will focus first upon

those segments located below the groundwater table.

(k) Asbestos Removal: Ibis action consists of the United States' ongoing survey of friable (i.e., flaking) asbestos on the Arsenal and the prompt removal

and disposal of it, if the survey indicates a potential for human exposure.

(1) Remediation of Other Contamination Sources: This action consists

of assessment and, a&necessary, the selection ald implementation of aqýTRA for the

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 of any material excavated from such locations in a properly constructed

temporary storage area or areas on the Arsenal. If any 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 of the report, the Army shall determine whether the source area should be

included in this IRA and notify Shell, EPA and the State of its 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 of a 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 of decontamination water prior

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

measures for the disposal or reuse of such water.

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2 2.2 The process set forth in paragraph 22.3 shall govern design and implementation of the Basin F Liquids, Sludges and Soils Remediation identified in paragraph 22.1(f). The process set forth in paragraph 22.4 shall govern implementation of the IRAs identified in subparagraphs 22.1(b)(iii) and 21.1(d). The process set forth in paragraph 22.5 shall govern implementation of the IRAs identified in subparagraphs 22.1(i) and 2-11(k). The process set forth in paragraphs 22.5-22.1.4 shall

govern assessment, design and implementation of the 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 of the nature and status of the IRA for Basin F, as identified in paragraph 22.1(f), the design and implementation of that 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 a proposed decision document for the final design of the IRA 71is design decision document shall be presented in draft to EPA, DOI, Shell, and the State and the public with a 30-day review and comment period.

(c) After close of the 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 of Dispute Resolution, if invoked. Any Organization (or DOI, subject to paragraph 30.2) may again invoke Dispute Resolution if it disagrees that the final decision document is consistent with the results of Dispute Resolution, if invoked.

(d) The final design decision document shall include IRA Deadlines for

implementation of this IRA (if not set forth in the Technical Program Plan) and shall be

supported by a publicly 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 of the action and the Army's

response to those comments.

(e) If any Organization or DOI believes that this IRA is not being

properly implemented, it may so advise the others and shall recommend how the action

should be properly implemented. The Organizations shall attempt to reach unanimous

agreement regarding such recommendation. Any Organization (or DOI, subject to

paragraph 30.2) may submýit the matter to Dispute Resolution to resolve the

disagreement.

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(f) Shell has the right to participate in the implementation of this IRA

pursuant to the conditions and provisions of this paragraph.

(g) This IRA is also subject to paragraph 22.5.

(h) If the Army determines that the Basin F liquids need to be removed

from temporary storage prior to implementation of the Final Response Action for the

On-post Operable Unit to avoid exceeding the service life of the tanks, it shall so notify

the other Organizations and DOI in writing. Such notification shall fully explain the

basis of the Army's dete rn-Li nation. The Army shall then prepare a proposed plan for

the treatment and disposal (and temporary storage, if appropriate) of the Basin F

liquids, and shall provide a draft of the plan to the other Organizations and DOI for a

30-day period of review and cornment. After considering the comments received, the

Army shall issue a final plan. Any Organization (or DOI, subject to paragraph 30.2)

may invoke Dispute Resolution with respect to the final plan not later than seven days

of receipt of the plan from the Army. Shell or the State may, upon completion of

Dispute Resolution, seek judicial review of the decision of the Administrator of EPA. If

Dispute Resolution is invoked, the final plan shall not be implemented by the Army

until the conclusion of Dispute Resolution or judicial review. 'Me final plan shall fully

reflect the results of Dispute Resolution or judicial review.

22.4 Because of the nature and status of the assessment of the feasibility of the

groundwater recharge trenches, as described in paragraph 22.1(b)(iii), and the closure of

abandoned wells on the Arsenal, as described in paragraph 22.1(d), these IRAs shall be

subject to all the requirements set forth in paragraphs 22.5-22.14, with the following

exceptions:

(a) The requirements of paragraph 22.6 shall not apply to the IRA

described in paragraph 22.1(b)(iii); however, that IRA shall be subject to notice and

comment when the draft IRA Decision Document is issued in accordance with

paragraph 22.9.

(b) Ile requirement in paragraph 22.6 that the assessment be subject

to notice 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 in paragraph 22.9 that the public be advised of

these IRAs at a public meeting shall not apply.

22.5 All IRAs identified in paragraph 22.1 shall, to the maximum extent

practicable, be consistent with and contribute to the efficient performance of Final

Response Actions. If an IRA wW not fully address the threat posed by a release and

further response is required, the Army shall ensure an orderly -transition from IRAs to

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Final Response Actions. Every effort shall be made to avoid duplication between IRAs

and Final Response Actions. At the time of implementation of Final Response Actions,

IRAs will either end or be incorporated as part of the Final Response Actions.

22. 6 The Lead Party shall prepare an assessment of each IRA subject to this

paragraph. The goal of the assessment shall be to evaluate appropriate alternatives and

to select the most cost-effective alternative for attaining the objective of the IRA. The

evaluation of alternatives may be based upon, but not limited to, such factors as

protection of human health and the environment, mitigation of the threat to human

health and the reasonableness of cost, and timeliness. Any studies or assessments that

have been initiated or completed as of the effective date of this Agreement may be

used, if appropriate, to satisfy the requirements of this paragraph. Each such assessment

shall be submitted in draft to the other Organizations and DOI for review and comment.

The other Organizations and DOI may submit comments to the Uad Party within 30

days after receipt of the draft assessment. Within 30 days after close of the comment

period, the Lead Party shall transmit a final 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 of ARARs 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. If the Army is not the Lead Party for an IRA

assessment, the Army shall provide its proposed ARAR determination to the Lead Party

prior to or promptly after the Lead Party begins preparation of the 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. If EPA,

DOI (subject to paragraph 30.2), Shell or the State disagrees with the Army's selection

of ARARs, such disagreement shall be subject to Dispute Resolution, as provided in

paragraph 22.10, or pursuant to such other process as the United States, Shell and the

State may agree in writing.

22.8 'Me Army shall issue a proposed IRA Decision Document for every IRA

subject to this paragraph promptly after issuance of the final assessment for that IRA, in

accordance with paragraph 22.6. The proposed IRA Decision Document shall be a

concise document that (a) indicates the objective of the IRA; (b) discusses alternatives,

if any, that were considered; (c) provides the rationale for the 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 IRA Deadline for completion of the IRA, if appropriate. If the Army is

not Lead Party for an IRA, the Army shall consult with the Lead Party prior to issuing

the proposed IRA Decision Document.

22.9 Each proposed IRA Decision Document shall be subject to a 30-day public

comment period (or such shorter comment period depending on the exigencies of the

-41 -
situation), during which the other Organizations, DOI and any other person may

comment on the proposed IRA Decision Document. The Army shall prepare a response

(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 of the

Arsenal of the IRAs subject to this 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 of these public meetings. Each IRA Decision Document

required for an IRA subject to this paragraph shall be supported by a publicly 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 of the comment period, the Army

shall transmit to the other Organizations and DOI a draft final IRA Decision Document.

The draft final IRA Decision Document shall address the issues noted in paragraph 22.8,

shall summarize the comments received on the proposed IRA Decision Document, and

shall include the Army's responses to those comments.

22.10 Within 20 days after issuance of a draft final IRA Decision Document for

any IRA subject to this paragraph, an Organization (or DOI, subject to paragraph 30.2)

may invoke Dispute Resolution to resolve disputes concerning the IRA proposed in the

draft final IRA Decision Document, including any dispute with respect to the Army's

ARAR decision. Shell or the State may seek judicial review in accordancewith

paragraph 39.2 of the decision that results from Dispute Resolution. The determination

that the IRAs listed in paragraph 22.1 are necessary and appropriate shall not be subject

to Dispute Resolution or judicial review.

12.11 After close of the period for invoking Dispute Resolution, if Dispute

Resolution is not invoked, or after completion of Dispute Resolution, if invoked, the

Army shall issue a final IRA Decision Document to the other Organizations and DOI.

Only preliminary design work for an IRA for which an IRA Decision Document is

required may be conducted prior to issuance of the final IRA Decision Document for

that IRA- The public shall be notified of the availability of the final IRA Decision

Document and the record supporting it.

22.12 Shell shall have the right to participate in the assessment, design and

implementation of IRAs pursuant to the conditions and provisions of this Agreement.

22.13 FoHowing completion of all 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 and the final design analysis and cost

estimate for implementation of that IRA and shall also include IRA Deadlines for

implementation of the MA

22.14 -fbe Lead Party responsible for designing or implementing an IRA shall

keep the other Organizations and DOI apprised of the progress of those activities.

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Documents relating to the design and implementation of the IRA shall be submitted in

draft to the other Organizations and DOI for review and comment. If any 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 being properly implemented, it may 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 with the

provisions of paragraphs 26.17-16.28.

22.16 At any time prior to the issuance of the 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 by the Organizations of the need for

additional action or modification of any IRA because of information that was not

available, or conditions that were unknown, at the time that the IRA Decision

Document was finalized. The statement shall be accompanied by a supporting technical

study and, if deemed appropriate by the proponent of the additional action or

modification, a legal memorandum. In the event that a unanimous 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 for Dispute

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 of significant assistance, prior to the issuance of the On-Post or the Off-Post

Operable Unit ROD, as appropriate, in assuring protection of human health and the

envirorunent.

XXIII. EMERGENCY ACTIONS

23.1 Notwithstanding any other provision of this Agreement, the Army retains

the right to conduct such Emergency Actions as may be necessary to alleviate immediate

threats to human health or the environment from the release or threat of release of

hazardous substances, pollutants or contaminants at or from the Arsenal. Such actions

may be conducted at any time, either before or after the issuance of a ROD.

Notwithstanding any other provision of this Agreement or the Settlement Agreement,

Shell shall not be liable for the cost of any Emergency Action taken solely in response

to a release or threat of release of a pollutant or contaminant.

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.

If the exigencies of the circumstances permit, the Army shall consult the other

Organizations and DOI before undertaking the Emergency Action. In addition, within

three days of initiating such an Emergency Action the Army shall provide written notice

to the other Organizations and DOI explaining why such Emergency 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 of an 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 of the action in the written notice provided pursuant to the third sentence of this paragraph.

23.3 If, following receipt of an 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, it may so notify the other Organizations in writing. Such notice must be provided within 30 days of the receipt of the Emergency Action notice and supporting documentation and shall fully explain the basis of Shell's

conclusion that the action was not necessary to alleviate an immediate threat to human

health or the environment from the release or threat of release of a hazardous

substance, pollutant or contaminant. If the Army disagrees with Shell's conclusion, Shell

may submit the issue to a special meeting of the SAPC, the Army, EPA and Shell

members of which shall make the final decision with respect to the disagreement.

23.4 If Shell concludes that any portion of an Emergency Action was not

conducted in accordance with the NCP or was conducted solely in response to a release

or threat of release of a pollutant or contaminant, Shell may so notify the other

Organizations in writing. Such notice must be provided within 30 days 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 the basis of Shell's conclusion. If

the Army disagrees with Shell's conclusion, Shell may submit the issue to a special meeting of the SAPC, the Army, EPA and Shell members of which shall make the final

decision with respect to the disagreement.

13.5 If the Army agrees, or it is determined by the Army, EPA and Shell

members of the SAPC or the Regional Administrator of the EPA (if the Army, EPA,

and Shell members fail to reach unanimity) that an action was not properly conducted as

an Emergency Action or was conducted solely in response to a release or threat of

release of a pollutant or contaminant, the costs of such action shall be an Army-Only

Response Costs. If the Army agrees, or the decision reached by the Army, EPA and

Shell members of the SAPC or the Regional Administrator of the EPA (if the Army,

EPA and SheU members fail to reach unanimity) is that an Emergency Action was not

implemented in whole or in part in accordance with the NCP, the costs of that portion

of the action so determined to be inconsistent with the NCP shall be an Army-Only

Response Cost.

23.6 In no event shafl Shell's notification to the Army pursuant to

paragraphs 23.3 or 23.4 above prevent the Army from implementing the Emergency

Action that is the subject of the notice.

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23.7 Time permitting, at the request of the Army, Shell may conduct, or may participate in conducting, all or any portion of an Emergency Action to the extent, and

pursuant to such terms as may be mutually agreeable to the 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 Prior to the effective date of this 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 of this Agreement, this Section shall control the

RI/FS for the On-Post Operable Unit. Shell's participation as Lead Party in the RI/FS

for the On-Post Operable Unit shall be in accordance with the terms of the Settlement

Agreement and the following:

(a) If, following completion of the Technical Program Plan, a New

Product or Subproduct proposed by an Organization is included in the RI/FS in

accordance with paragraph 24.7, or an Other Deliverable proposed by an Organization is

determined to be necessary in accordance with paragraph 24.59, Shell shall be afforded

a reasonable period of time to request in writing that it be designated Lead Party for

such New Product or Subproduct or Other Deliverable. The Army shall determine

whether it is more appropriate for Shell 'than the Army to be Lead Party for I the New

Product, Subproduct or Other Deliverable and shall notify Shell in writing of the Army's

determination within 15 days of receipt of Shell's request.

(b) If, pursuant to paragraphs 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 of the receipt of such 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 of such notice, the two members shall meet

and discuss Shell's request to be 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 to judicial review or Dispute Resolution.

(c) Once it has been determined that it is more appropriate for Shell to

be Lead Party for the New Product, Subproduct or Other Deliverable, the Army and

Shell shall, pursuant to the Memorandum of Understanding attached as Exhibit G to the

Settlement Agreement, develop and sign a scope of work by which the work for the 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 of the 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 to paragraphs 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 may provide technical

assistance or technical support or, at the request of the Army, prepare a Technical Plan

for a Product, Subproduct or Other Deliverable being developed by the Army for the

Off-Post Operable Unit. Prior to the effective date of this 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 of this Agreement, 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 of Lead Agency and Lead Party

24.6 If the Lead Party for a Product or Subproduct is other than the Lead

Agency, the Lead Party shall keep the Lead Agency apprised of its progress so that the

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 for all ARAR determinations for a

Product or Subproduct.

(v) Designation of New Products and Subproducts,

24.7 For purposes of this Agreement, New Products and Subproducts shall

include: (1) any Products or Subproducts, not listed in paragraphs 24.30, 24.32 and 24.34

which are determined necessary for an Operable Unit; and (2) any Products or

Subproducts listed in paragraphs 24.30, 24.32 and 24.34 which are determined to require

such substantial modification as to require the preparation of new Technical Plans.

24.8 'Mere shall be no New Products or Subproducts for the RI for the On-Post

Operable Unit. Subject to the previous sentence, any Organization may propose a New

Product or Subproduct for an Operable Unit (other than for the On-Post RI) at any

-46-
time after completion of the Technical Program Plan. Any such proposal during the development 

Dispute 

of the Plan may be subject to Dispute Resolution only in the context of

made 

Resolution on the Plan. After completion of the Plan, such a proposal may be

Organizations, 

at any time at the RMA Committee level. Upon unanimous agreement of the 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 of the Technical Program Plan.

(vi) Effect of New 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 or Subproducts shall be prepared pursuant to paragraphs 24.11 and 24.28. Technical Plans for New Products or Subproducts shall be the only Technical Plans subject to Dispute Resolution.

(vii) Revision of On-Going RI Products-or Subgroducts

24.10 After completion of the 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, pilot studies, computer modeling or other supporting technical work if the requested revision is determined necessary as a result of information that was not available, or conditions that were unknown, at the time the Technical Program Plan was completed. Such Organization shall submit a concise written statement to the RMA Committee which specifies the nature of the requested revision and how the requested revision arises from previously unavailable information

or unknown conditions. The statement shall be accompanied by a supporting technical study and, if appropriate, 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 of the Product or Subproduct only upon a showing that the requested revision could be of significant assistance in evaluating impacts on the public health or the envirorunent, or is otherwise necessary to assure the protection of human 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 or Subproducts designated pursuant to paragraphs 24.7-24.8.

-47 -
(b) Initial Effort to Reach Consensus on the Scope of Work 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

of the scope of work for the new Technical 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 of a New Product or Subproduct

which becomes part of a RI/FS in accordance with paragraphs 24.7-24.8 shall prepare

the draft Technical Plan for that Product of Subproduct, provided, however, that if EPA

is the proponent, it shall prepare the statement of work for the new Technical Plan and

the Army shall prepare the Technical Plan.

24.14 A draft Technical Plan shall provide, to the extent practicable, objectives

for the Technical Plan and adequate detail as to how these objectives are to be

achieved.

24.15 If the initial draft of the Technical Plan is prepared by a contractor, the

proponent of the New Product or Subproduct may revise the Technical Plan as deemed

necessary prior to transmittal of the draft to the other Organizations.

24.16 A draft Technical Plan which is prepared by a contractor shall not be

deemed to be an admission by any Organization.

24.17 Work shaU not commence under any Technical Plan for a New Product or

Subproduct prior to the completion of the review and comment period and the period

for invoking Dispute Resolution for such Technical Plan, or upon completion of Dispute

Resolution if invoked, except that work may proceed pursuant to a disputed Technical

Plan if such work is not materiafly and substantially related to that portion of the

Technical plan that is in dispute.

(d) Review and Comment on Draft Technical Plans

24.18 Draft Technical Plans for New Products or Subproducts shall be

transmitted by the preparer of the Technical Plans to the other Organizations for a 30-

day period of review and comment.

24.19 The recipients of a draft Technical Plan shall transmit their comments by

overnight mail to the other Organizations.

-48.
24.20 Representatives of the Organization that prepared the draft Technical Plan

shall make themselves readily available to the other Organizations during the comment

period for purposes of informally answering questions and conferring with respect to the

information and proposals provided in the draft Technical Plan. Oral comments made

at such meeting need not be the subject of a written response by the preparer of the

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 be pertinent to

the matters addressed in the Technical Plan.

(e) Draft Final Plans and Response to Comments

24.22 Following the close of the comment period, the Organization that prepared

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 of the resulting draft final Technical Plan shall. be the determination

of the preparer of the Technical Plan, the document shall be the product of unanimous

agreement to the extent practicable.

24.23 Within 30 days of the close of the conunent period, the Organization that

prepared the draft Technical Plan shall transmit to the other Organizations a draft 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 be jointly extended by the preparer and

Lead Agency for an additional 15 days. This period may be further extended in

accordance with paragraph 26.18 if additional field work, pilot studies, computer

modeling or other supporting technical work is necessary.

(f) Availability of Dispute Resolution

24.24 Within 15 days of receipt of the draft final Technical Plan for a New

Product or Subproduct, any Organization may raise any aspect of it to Dispute

Resolution. Prior to raising a matter for Dispute Resolution, the Organizations shall

endeavor to resolve it informally at the RMA Committee level. Work which the

disputing Organization does not identify as being in dispute or materially and

substantially affected by the issue in dispute shall proceed irrespective of informal efforts

to resolve the dispute or the invocation of Dispute Resolution.

(g) Finalization of New Technical Plans

24.25 To the extent that it is determined, either by the RMA Committee or as a

result of Dispute Resolution, that a modification of the draft final Technical Plan is

warranted, the preparer of the Technical Plan shall make such modification.

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1-4.26 Either upon the close of the time for invoking Dispute Resolution, or upon

the completion of Dispute Resolution if invoked and if the determination of the

Organization that prepared the Technical Plan is sustained, the preparer of the

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 of the 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 of the draft final version

of the Technical Plan which conforms to the result of Dispute Resolution. If any

Organization believes that the revision does not conform to the result of Dispute

Resolution, it may invoke Dispute Resolution to compel further revision. In such event,

the preparer of the Technical Plan shall promptly advise the other Organizations in

writing when the Technical Plan has been finalized as a result of Dispute Resolution

and, with such notice, shall submit a copy of the finalized Technical Plan to each of

them if it differs from the previously delivered draft.

24.27 The Final Technical Plan shall be the basis for all subsequent contractual

or staff work by the Lead Agency or Lead Party for the New Product or Subproduct

addressed in the Technical Plan. No field work addressed in the Technical Plan shall

begin until the close of the time for invoking Dispute Resolution or upon the completion

of Dispute Resolution, if invoked, urfless such field work is not affected by the matter in

dispute.

(ix) On-Going Technical Plans

24.28 This paragraph governs the preparation of Technical 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 for which they have responsibility to the other Organizations for a 30-

day period of review and comment. For any Technical Plan made available to the other

Organizations prior to issuance of the draft Technical Program Plan by the Army in

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 on a

draft Technical Plan shall be promptly addressed in a final Technical Plan, in a separate

document, or, if appropriate, in the Army's response to comments on the Technical

Program Plan.

(x) Draft and Final Reports for-Products and Subproducts

(a) Applicabi 1i

'24.29 As of the effective day of this Agreement, aH draft and final reports for

any Product or Subproduct shall be prepared in accordance with paragraphs 24.30-24.60.

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(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 of Arsenal-wide air investigations);

(ii) Buildings (results of Arsenal-wide buildings investigations);

(iii) Biota (results of Arsenal-wide biota investigations);

(iv) Water (results of Arsenal-wide surface water and

groundwater investigations);

(v) On-Post SARs (integration of the results of air, buildings,

biota, water and soils investigations);

(vi) RI (integration of all RI data presented in the RI Products).

EA Products

(vii) Contaminant identification, with proposed EA-related ARAR

Determination (site characterization, selection of target contaminants, and identification

of environmental transport and fate mechanisms and ARARs for target contaminants)

(viii) Exposure and Toxicity Assessment (identification and analysis

of exposure pathways and extent of exposure of human and environmental'populations

at actual and potential risk; evaluation of the toxicological properties of target

contaminants)

(ix) EA, with revised proposed EA-related ARAR Determination

(development of target cleanup level ranges based on risk characterization and revised

EA-related ARAR identification)

FS Products

(x) Development and Screening of Altematives, with proposed

ARAR Determination for Each Altemative (initial alternative screening process by

which certain altematives are selected for in-depth evaluation)

51 -
(xi) Evaluation of Alternatives, with revised proposed ARAR

Determination (in-depth evaluation of alternatives resulting from initial screening;

refinement of proposed ARA.R determination for each alternative evaluated)

(xii) FS with revised proposed ARAR Determination

(development of preferred alternative and final refinement of ARAR 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 of draft 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 of paragraphs 24.45-24.47, draft reports for

the following Subproducts for the On-Post Operable Unit:

RI Subproducts

(i) All Phase I CARs for the On-Post Operable Unit (to be used

in developing the RI Products presented in paragraph 24.30);

EA Subproducts

(ii) Risk Characterization (determination of the likelihood and

extent of any harm);

FS Subproduct

(iii) Technology Inventories (first step in Development and

Screening of Alternatives);

(iv) Tre atment/Incine ration Study (for incorporation into

Evaluation of Alternatives);

(v) Disposal Facility Study (for incorporation into Evaluation of

Alternatives);

(vi) Advanced Technologies and Pilot Treatment Studies (for

incorporation in Evaluation of Alternatives).

24.33 The Organizations may comment on the draft reports for the Subproducts

listed in the previous paragraphs and on any New Subproducts designated pursuant to

paragraphs 24.7-24.8, as provided in paragraphs 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 of draft 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 For the 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 of these 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 of the RMA Committer, on the Development of Products

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 of work being performed on the

Products or Subproducts under that Product Manager's purview. Prior to preparing a

draft report for a Product or Subproduct, the RMA Committee shall meet with each

appropriate Product Manager to discuss the Product and Subproduct results in an effort

to reach a common understanding, to the maximum extent practicable, with respect to

the results to be presented in the draft report. %

(e) Identification and Determination of Potential ARAV

24.38 For those Products or Subproducts that consist of or include proposed

ARAR determinations, prior to the issuance of a draft Product or Subproduct report,

the Army shall transmit a proposed ARAR determination to the other Organizations for

review and comment and, if requested by any Organization, counsel for the United

States (including counsel for EPA 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 such proposed ARAR determination. The other Organizations,

DOI and ATSDR at that time may also propose potential ARARs for consideration and

may participate in any related meeting. All potential proposed ARARs proposed by the

- 53 -
Organizations during the process shall be considered by the Lead Agency in its

preparation of the draft Product report.

24.39 In accordance with CERCLA, the NCP and any pertinent guidance issued

by EPA which is not inconsistent with CERCLA and the NCP, potential ARARs may

include, but are not limited to, the following:

(a) Ambient or chemical specific requirements which set health or riskbased concentration limits or ranges in various environmental media for specific

hazardous substances, pollutants or contaminants;

(b) Performance, design or other action-specific requirements which set

controls or restrictions on particular kinds of activities related to management of

hazardous substances, pollutants or contaminants; and

(c) Locational requirements which set restrictions on activities

depending on the characteristics of a 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 that ARARs depend on the

specific hazardous substances, pollutants and contaminants at a site, the particular

actions proposed as a remedy and the characteristics of a site. The Signatories

recognize that ARAR identification is necessarily an iterative process and that potential

ARARs must be re-examined throughout the RI/FS process until a ROD is issued.

24.41 * At the meeting identified in paragraph 24.38, each Organization shall

identify, to the best of its 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) of CERCLA, 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 of whether

another Organization is the Lead Party or the proponent of the Product or Subproduct

for which the ARAR determination is required. All ARAR determinations shall be

prepared in accordance with Section 121(d) of CERCLA, 42 U.S.C. § 9621(d), the NCP

and any pertinent guidance issued by EPA which is not inconsistent with CERCLA and

the NCP.

24.42 The Lead Agency shall be responsible for all proposed ARAR

determinations. Such proposed determinations shall be made by the Lead Agency as

early in the process of developing a Product or Subproduct as practicable. Where an

ARAR determination is part of a Product or Subproduct that is being developed by a

Lead Party other than the Lead Agency, the Lead Agency shall be responsible for the

ARAR portion of that Product. In such cases, the Lead Party shall assure to the

maximum extent possible that the technical portion of the draft Product report is

-54 -
consistent with the ARAR determination of the Lead Agency prior to transmitting the

draft report to the other Organizations for review and comment.

(f) Review and Comment on Draft Product and Subproduct Reports

24.43 If the initial draft of any Product or Subproduct report is prepared by a

contractor, the Product Manager may revise it as deemed necessary prior to transmittal

of the draft to the other Organizations. Draft Product or Subproduct reports which are

prepared by a contractor shall not be deemed to be admissions of the Lead Party or

Lead Agency.

24.44 When Dispute Resolution is invoked on a draft final Product report, work

shall not continue on any later sequential Product, prior to the completion of Dispute

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 for the issuance of such report

established pursuant to paragraph 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 of such

report established pursuant to paragraph 26.17.

24.47 All draft Product and Subproduct reports shall be subject to a 45-day

review and comment period concerning all aspects of the Product or Subproduct

(including completeness). On or before the close of the 45-day comment 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 of the Lead Party shall make themselves readily available

to the other Organizations (and DOI, as appropriate) during the comment period for

purposes of informally responding to questions and comments on draft Product or

Subproduct reports. Oral corturients made at such meetings need to be the subject of a

written response by the Lead Party on the close of the comment period, and such

comments may be raised during Dispute Resolution only if they were included in timely

written comments or bear a material and substantial relationship to timely written

comments or to other issues properly raised to Dispute Resolution.

24.49 In commenting on a draft Product or Subproduct report which consists of

or includes a proposed ARAR determination, the Organizations (and ATSDR and DOI,

as appropriate) shall include a reasoned statement of whether they object to any portion

of the proposed ARAR determination. To the extent that an Organization does object,

it shall explain all bases for its objection in detail and shall identify any ARARS which it

believes were not properly addressed in the proposed ARAR determination.

55 -
24.50 Following close of the 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 of the close of the comment period on a draft Subproduct report, the

Lead Party shall transmit to the other Organizations its written response to comments

received within the comment period and the Lead Agency shall transmit to the other

Organizations its response to comments on ARARs received during the comment

period. Within 30 days of the close of the comment period on a draft Product report,

the Lead Party shall transmit to the other Organizations a draft 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 .ty of the Lead Party (except

for ARAR determinations, which shall be the responsibility of the Lead Agency), it shall

be the product of unanimous agreement to the maximum extent possible.

24.51 The 30-day period for responding ýo comments on a draft Product or

Subproduct report may be jointly extended by the Lead Party and Lead Agency for an

additional 20 days. It may be further extended, in accordance with paragraphs 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 of Dispute Resolution for Draft Final Product Reports

24.52 With respect to Products, Subproducts and Other Deliverablei,- Dispute

Resolution shall only be available for draft final Product reports. Within 20 days of

receipt of such a draft final report, any Organization may raise any aspect of it to

Dispute Resolution. The resolution of disputes with respect to any ARAR

determination required for that Product shall be as provided in Section XXX of this

i\greement. Prior to raising 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 that report,

or on any later sequential Product, Subproduct or RI/FS Report, where (a) the

disputing Organization does not identify such work as being in dispute or materially and

substantiafly related to work which is in dispute; or (b) it is determined through Dispute

Resolution that such work may go forward pending the resolution of the dispute.

(h) Finalization of Product Reports

24.53 Either upon the close of the time for involdng Dispute Resolution or upon

the completion of Dispute Resolution if invoked and if the Lead Party's determination is

sustained, the Lead Party shall advise the other Organizations in writing within seven

days that the draft final Product report shall serve as the final Product report. In the

56 -
event that Dispute Resolution is invoked and the Lead Party's determination is not

sustained, the Lead Agency shall make any appropriate modifications of the ARAR

determination and the Lead Party shall then prepare, within not more than 35 days, a

revision of the draft final report that conforms to the results of the Dispute Resolution,

including any revision necessary as a result of a modification of an ARAR

determination. This revision period may be extended, in accordance with

paragraph 26.18, if additional field.work, pilot studies, computer modeling or other

supporting technical work is necessary. If a draft final Product report is revised as a

result of a dispute resolved by SAPC or FRC, the revision may be approved by the

RMA Committee unless an Organization requests that it be approved by SAPC. If a

draft final Product report is revised as a result of a dispute resolved by the RMA

Council, the revision may be approved by the RMA Committee unless an Organization

requests that it be approved by the RMA Council. The Lead Party shall promptly send

to each of the other Organizations a copy of the finalized Product report.

24.54 Subproduct reports shall be the basis for the relevant portions of draft

Product reports. Final Product reports and comments thereon shall be the basis for the

relevant portions of RI/FS Reports.

(i) Subseg.uent Modifications of Product Reports

24.55 Following the finalization of a Product 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 in the following paragraphs 24.56 and

24.57.

24.56 An Organization may seek to modify a Product after finalization of the

report for that Product, if it determines, based on new information that became

available or conditions that became known after the Product report was finalized, that

the requested modification would be of significant assistance in evaluating impacts on

the human health or the environment or in evaluating the selection of remedial

alternatives. The Organization may seek such a modification by submitting a concise

written request to the RMA Committee. The request shall specify the nature of the

requested modification and how the request is based on new information or previously

unknown conditions.

24.57 In the event that unanimous agreement is not reached by the RNIA

Committee on the need for a Product modification, any Organization may invoke

Dispute Resolution to determine if such modification shall be conducted. The RMA

Council, SAPC or FRC shall require the modification of a Product report only upon a

showing that: (1) the requested modification is based on new information that became

available, or conditions that became known, after the Product report was finalized, and

(2) the requested modification would be of significant assistance in evaluating impacts

- 57 -
on human health or the environment or in evaluating the selection of remedial

alternatives.

24.58 In the event that a modification of a Product report is found to be

warranted as a result of Dispute Resolution, the proponent of the modification shall

prepare and have adopted a draft, draft final and final Technical Plan and new draft,

draft final and final Product report as it would be required to do for a New Product

pursuant to this Agreement.

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 of the Technical Program Plan may be subject to Dispute Resolution only

in the context of Dispute Resolution on the Technical Program Plan. After completion

of the Technical Program Plan, such a proposal may be made at any time at the RNLA

Comn-dttee level. Upon unanimous agreement of the RMA Committee members that

the proposed Other Deliverable is necessary, that Other Deliverable shall be included in

the applicable RI/FS. If the RMA Committee members do not reach unanimous

agreement that the Other Deliverable is necessary, any Organization may invoke Dispute

Resolution with respect to a proposal. If, as a result of Dispute Resolution, the

proposed Other Deliverable is determined to be necessary, it shall be included in the

applicable RI/FS.

24.60 Other Deliverables that have not been issued in draft as of the effective

(late of this Agreement shall be submitted in draft to the other ý'Organizations for

comment promptly upon their preparation by the Lead Party. Any Organization may

submit written conunents on drafts of Other Deliverables. Failure to submit such

comments does not affect the right of an Organization to address such Other

Deliverables when commenting on a related 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 a related Product or

Subproduct Report.

(k) Remedial Invest i gation JFe asibil ily Study Rep,orts

24.62 Following the finalization of all Product reports required for an Operable

Unit, the Lead Agency shall prepare the RI/FS Report for that Operable 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 or NCP requirements or EPA guidance which is not

inconsistent with CERCLA and the NCP.

- 58 -
24.63 On or before the applicable deadline established pursuant to

paragraph 26.7(c), the Lead Agency shall have notice published in at least one major

Denver newspaper of general circulation, in accordance with CERCIA Section 117(a)

and (d), 42 U.S.C. § 9617(a) and (d), of the availability of the RI/FS Report and a brief

analysis of the 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 or a member of the TRC, may offer

comments on the RI/FS Report during the public comment period.

24.65 Upon the close of the public comment period, the Lead Agency shall

prepare a response to all significant comments received. A summary of such responses

shall be included in the applicable ROD, in accordance with the following paragraph.

XXV. RECORDS OF DECISION ("RODs")

(i) Contents of Each 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 on the RI/FS Report, provide Design Deadlines

for Response Actions addressed in the ROD, provide an appendix of ARARs and an

A.RAR certification (including State standards compliance), and comply with any other

CERCLA or NCP requirement or EPA guidance which is not inconsistent with

CERCLA and the NCP.

(ii) Draft RODs

12 5.2 Not more than 75 days after the conclusion of the public corriment period

on a RI/FS Report, the Lead Agency shall transmit the draft ROD to the other

Organizations for 30 days of review and comment. This period for transmittal of the

draft ROD may be extended, pursuant to paragraphs 26.8-26.15, because of the large

volume or complexity of the comments received by the Lead Agency or on any other

showing of good cause for such extension. Each Organization shall transmit its written

comments to the others.

(iii) Review and Comment on Draft RODs

25.3 Representatives of the Lead Agency shall make themselves readily

available to the other Organizations during the 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 of a written response by the Lead Agency on

the close of the comment period.

-59.
25.4 In each of their respective comments, the Organizations shall include a

reasoned statement of whether they object to any of the 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 of the 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 on proposed ARAR determinations) and shall make

appropriate modifications wherever warranted.

25.6 Within 30 days of the receipt of comments, the Lead Agency shall transmit

to the other Organizations a draft final ROD (including proposed ARAR

determinations). At that time, the Lead Agency shall also respond in writing to all

written comments with a reasoned technical or legal response which addresses the

commenters' concerns in appropriate detail. 77his period may be extended, in

accordance with paragraph 26.8-26.15, in the event that it is found necessary for the

Lead Agency or another Organization to perform additional field work, pilot studies,

computer modeling or other supporting technical work.

(v) Availability of Dispute Resolution

25.7 Within 15 days of the receipt of draft final ROD, any Organization may

raise any aspect of the ROD (including proposed ARAR determinations) to Dispute

Resolution. Otherwise, an Organization shall be deemed to have concuffed in the draft

final ROD.

(vi) Finalization of RODs

25.8 Within seven days of the deadline for invoking Dispute Resolution, or

within seven days of the completion of Dispute Resolution, if invoked and if the Lead

Agency's determination is sustained, the Lead Agency shall transmit by ovemight mail,

on behalf of the United States, a copy of the final ROD to the 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 of the draft final ROD which conforms to the results of Dispute

Resolution. This period may be extended in accordance with paragraph 26.8-26.15, on a

showing of good cause by the Lead Agency. Prior to transmitting the revised ROD to

tile other Organizations, the Lead Agency shall submit it to SAPC for review, and

approval. Within seven days of SAPC approval, the Lead Agency shall transmit a copy

of the final ROD, on behalf of the United States, to the other Organizations.

-60-
(vii) Publication and Judicial Revie%v-of RODs

.25.10 Upon transmittal of a final ROD to the other Organizations pursuant to

paragraph 25.8 or 25.9, the Lead Agency.shall notify the State in writing of its intent to

publicize, no sooner than 30 days from the date of such notice, the availability of the

final ROD. The notice to the §tate shall also request that the State, pursuant to

Section 121(f)(3)(A) of CERCLA, 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 of the Site pursuant to

CERCLA, the Lead Agency shall submit the final ROD, and a summary of the final

ROD, to the Court, together with the certified Adn-iinistrative Record for the ROD, or,

as appropriate, a suitable index to, or microfilm copy of, such certified Administrative

Record, if the actual Adn-dnistrative Record is to be maintained at a location other than

the courthouse.

25.12 If the State does not concur in the final ROD, it may bring an action in

the Court pursuant to Section 121(f)(3) of CERCLA, 42 U.S.C. § 9621(f)(3), within 30

days of the submittal of the ROD to the Court pursuant to the previous paragraph.

25.13 If Shell does not concur in the final ROD, it may bring an action in the

Court within 30 days of the submittal of the ROD to the Court pursuant to

paragraph 25.11 or may participate in an action brought by the State. Shell's judicial

challenge to a final ROD shall be subject to the provisions of paragraph 30.7.

25.14 If neither the State nor Shell brings a timely action pursuant to paragraphs

25.12 or 25.13, the Lead Agency shall publish notice of the availability of the ROD and

Administrative Record in at least one major Denver newspaper of general circulation.

After publication of such notice, the Lead Agency may proceed with the design and

implementation of the response actions addressed in the ROD. If the State or Shell

brings an action pursuant to paragraph 25.12 or 25.13, the Lead Agency may

nevertheless proceed with any design work that is unrelated to or not inconsistent with

the relief sought in such action, and may proceed with any other work as may be

determined by the Court.

25.15 Nothing in this Agreement shall be deemed to modify in any way the right

of the State or Shell to seek judicial review, in accordance with CERCLA

Section 113(a), 42 U.S.C. s 9613(a), in the United States Circuit Court of Appeals for

the District of Columbia of any provision of the NCP or any other regulation

promulgated under CERCLA.

-61 -
(viii) Modificationof ROD.s

25.16 An Organization may seek to modify a ROD if it determines, based on information that was not available, or conditions that were not known at the time notice of the Availability of the ROD was published, that good cause for such modification exists. Such Organization may seek such a modification by submitting to the RMA Committee a detailed statement demonstrating good cause for such modification together with a supporting technical study and, if appropriate, a legal memorandum. Upon receipt of such detailed statement, any Organization may invoke Dispute Resolution if it believes the modification is unwarranted or if it believes the modification is significant enough to require a Supplemental Response Action, rather than a modification of the ROD, and the proposing Organization disagrees. If all Organizations agree, or if Dispute Resolution resolves, that a modification of the 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 of this Agreement, the February 1, 1988, and June 7, 1988, proposed consent decrees governed the development, enforceability and extension of Deadlines and Schedules. On the effective date of this Agreement, this Section shall control the development, enforceability and extension of Deadlines and Schedules.

(ii) Development of Deadlines

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 civil penalty 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 of a draft Technical Plan for a New Product;

(b) Date for issuance of the draft reports for the RI, EA and FS

Products listed in paragraph 24.30;

(c) Date for publication of the notice of availability of the 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 to paragraphs 28.1-28.5, and subject to the stipulated civil penalty

provisions in paragraphs 29.1-29.5, are the dates established in the Technical Program

Plan for the following milestones:

(a) Date for issuance of a draft Technical Plan for a New Product;

(b) Date for issuance of the draft Product reports listed in

paragraph 24.34;

(c) Date for publication of the notice of availability of the RI/FS

Report pursuant to paragraph 24.63.

(v) Extension of IRA, RIJFS. Supplemental Response Action. Design and

Implementation Deadlines

26.8 A Deadline shall be extended upon receipt of a timely request for

extension pursuant to paragraph 26.9 and when good cause exists for such extension as

provided in paragraphs 26.10 and 26.11..

26.9 A request for extension of a Deadline shall be submitted to each

Organization in writing and shall specify:

(a) 'ne Deadline which is sought to be extended;

(b) Ile length of the extension sought;

(c) The good cause(s) for the extension; and

(d) Any related Deadline which would be affected if the extension were

granted.

63 -
26.10 Good cause exists for an extension of a Deadline where the extension is

sought because of:

(a) An event of Force 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 of Dispute Resolution or the

initiation of judicial action;

(d) A delay caused, or which is likely to be caused, by the grant of an

extension of another Deadline or the extension of a Schedule.

26.11 Any other event or series of events shall constitute good cause if all the

Organizations so agree or, absent such agreement, if the determination resulting from

Dispute Resolution is that good cause exists.

26.12 Within seven days of receipt of a request for extension of a Deadline in

accordance with paragraph 26.9, each Organization shall advise the others in writing of

their respective positions on the request for extension. The failure of any Organization

to respond within the seven-day period shall be deemed to constitute concurrence in the

request for extension. If an Organization does not concur in the requested extension, it

shall include in its statement of nonconcurrence a full explanation of all bases for its

position.

26.13 If ther e is unanimous agreement among the Organizations that the

requested extension is warranted, the Lead Agency shall extend the affected Deadline

accordingly. Each such extension of a Deadline shall be appended to the Technical

Program Plan.

26.14 If there is not unanimous agreement among the Organizations as to

whether all or a portion of the requested extension is warranted, the Deadline at issue

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 of the receipt of one or more statements of

nonconcurrence in the requested extension, an Organization which seeks the extension

of the Deadline may invoke Dispute Resolution. Upon the conclusion of Dispute

Resolution, the Lead Agency shall implement the decision resulting from Dispute

Resolution. Each such extension of a deadline shall be appended by the Lead Agency

to the Technical Program Plan.

26.16 A timely request for an extension of a Deadline shall toll any application

for judicial enforcement of the affected Deadline until a decision on whether to allow

-64-
the extension is reached bv unanimous agreement or through Dispute Resolution.

Following extension of a beadline, application for judicial 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 of Subproduct

reports, shall be as established in this Agreement and the Technical Program Plan.

26.18 The RMA Committee, upon unanimous agreement of the Organizations~

and while endeavoring to avoid any extensions which may impact RI/FS Deadlines--may

extend any Schedule at the request of an Organization. In the event that such request is

disputed by an Organization, the matter shall be resolved by Dispute Resolution.

XXVIL FORCE MAJEURE

27.1 If the Army or Shell is rendered unable, wholly or in part, by Force

Majeure to carry out its obligations under this Agreement or the Settlement Agreement,

then upon that Organization's giving written notice as provided in paragraph 27.3, the

obligations of that Organization, so far as they are affected by the event of Force

Majeure therein specified, shall be suspended during the continuance of such cause, but

for no longer period, and such cause shall be remedied so far as possible with all

reasonable dispatch.

27.2 The settlement of a strike or other labor dispute shall be entirely within

the discretion of the Orgarýzation involved with such strike or labor dispute and the

requirement that any event of Force Majeure shall be remedied with all reasonable

dispatch shall not require the settlement of a strike or labor dispute by acceding to the

demands of the opposing party when such course is inadvisable in the discretion of the

Organization involved with such strike or labor dispute.

27.3 When circumstances are occurring or have occurred that delay the

completion of any obligation, and the Army or Shefl believes such circumstances

constitute an event of Force 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 of the reason(s) for and anticipated duration of the delay, the measures

taken and to be taken to prevent or minimize the delay, and a schedule for

implementation of such measures. Failure to provide such notice in accordance with

this paragraph within the required 15-day period shall constitute a waiver of any claim of

Force Majeure with respect to any event of Force Majeure for which notice was not

timely given.

27.4 If the Organizations cannot agree whether a delay is or was attributable to'

an event of Force Majeure, any Organization may invoke Dispute Resolution.

65 -
XXVIII. ENFORCEABILITY

28.1 Upon the effective date of this Agreement: (a) Deadlines, including

Deadlines resulting from an extension granted in accordance with paragraphs

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 of CERCLA and any violation of

such Deadline or standard, regulation, condition, requirement or order will be subject to

civil penalities under 310(c) and 109 of CERCLA 42 U.S.C. SS 9659(c) and 9609;

rdie- -3ec-t.

(b) All terms and conditions of this 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 of CERCLA, and any violation of such 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 of a dispute pursuant to Section XXX of this

Agreement which estabiishes a term, condition or Deadline shall be enforceable by any

person to the extent permitted by Section 310 of CERCLA, and any violation of such

term, condition or Deadline will be subject to civil penalties under Sections 310(c) and

109 of CERCLA, 42 U.S.C. § § 9659(c) and 9609.

28.2 Any such action shall be subject to the requirements of Section 310(d) and

(e), 42 U.S.C. § 9659(d) and (e). All provisions of this Agreement may be enforced by

any Signatory without the need to comply with the notice requirements of Section 310 of

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 of such action consistent

with the terms and conditions of this Agreement. Shell further reserves all rights and

defenses that it may have to the enforcement of this Agreement pursuant to

paragraph 28. 1.

28.4 To the extent that a Lead Party other than the Lead Agency or the

proponent of a New Product or Subproduct, fails to meet a Deadline, that Lead Party or

proponent of a New Product or Subproduct shall be subject to stipulated civil penalties

as specified in Section XXIX

28.5 EPA's request for payment of a stipulated civil penalty, as provided in

paragraph 29.1, shall constitute commencement and diligent prosecution of an action

within the meaning of CERCLA Section 310(d)(2), 42, U.S.C. S 9659(d)(2).

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2 8. 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 of this 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

seek judicial review of any action of an Organization where such review is barred by any

provision of CERCLA, including Section 113(h) of CERCLA, 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. If the Deadline in question

is not already subject to Dispute Resolution at the time such notice is received, the

Organization shall have 10 days after receipt of the notice to invoke Dispute Resolution.

Failure of an Organization to invoke Dispute Resolution by the end of this 10-day

period shall forfeit that Organization's right to object to the payment of stipulated civil

penalties for failure to meet the Deadline in question. Following completion of Dispute

Resolution, Shell may seek judicial review of EPA's determination pursuant to

paragraph 30.7.

2 9.2) An Organization that fails to meet a Deadline shall pay EPA upon request

the following stipulated civil penalties for each failure:

(a) For a delay of one week or part thereof, a total of $5,000; and

(b) For a delay of more than one week, $10,000 for each additional

week or part thereof.

'79.3 EPA shall not request payment of stipulated penalties for failure to meet a

Deadline until the later of:

(a) The date of completion of the action that is subject to the

Deadline; or

(b) The date of completion of Dispute Resolution or judicial review

concerning the Deadline.

29.4 Except as otherwise determined through Dispute Resolution or judicial

review, the date on which stipulated civil penalties shall begin to accrue shall be the

date specified in the notice sent by EPA pursuant to paragraph 29.1, but in no event

earlier than the Deadline in question.

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29.5 Stipulated civil penalties shall be payable to the "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 of the transmittal shall be sent to EPA's designated RMA Committee

representative.

29.6 Subject to paragraph 28.4, the payment of a stipulated civil penalty in

accordance with this Agreement does not preclude invocation of any other remedy or

sanction available pursuant to CERCLA for noncompliance with a provision of this

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

if it 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 of the 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 of any Signatory personally liable for the payment of any 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 at the RMA Committee level. If the dispute cannot be resolved informally at

the RMA ConurLittee level, the decision of the Lead Agency shall be implemented

unless an Organization initiates Dispute Resolution pursuant to the following paragraph.

30.2 To initiate Dispute Resolution, an Organization (or DOI 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 RIMAý Committee members of its intent to invoke Dispute Resolution and

shall give written notice to the RNIA Council members of the dispute. The notice shall

include an identification of any activities that the Organization believes are affected by

tile dispute and therefore should not proceed during Dispute Resolution. If there 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 of such notice, the RMA

Council shall make best efforts to resolve the dispute within the following 14 days.

Promptly upon the conclusion of any RMA Council meeting at which a dispute is

resolved by unanimous agreement ýf the 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 If the RMA Council does not resolve the dispute by unanimous agreement,

the dispute shall be elevated to SAPC for resolution at the close of the RMA Council's

14-day period.

30.4 Within 30 days of a request 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 shall be considered resolved bythe SAPC only if all the Organizations

agree. If at the conclusion of the SAPC's 30-day resolution period the dispute has not

been resolved, the position of the EPA Regional Administrator shall be implemented,

unless the dispute is elevated to FRC pursuant to paragraph 30.5. Promptly upon the

conclusion of any SAPC meeting at which a dispute is resolved (either by the EPA

Regional Adrrdnistrator or through unanýimous agreement of the voting members), 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.

30.5 A dispute that is not resolved by SAPC may be elevated to FRC upon the

request of any Organization (or DOI 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 et se!Q., migratory birds or

actions that will significantly affect migratory birds at the Arsenal) 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 of the elevation to FRC of a dispute, FRC shall meet and

attempt to resolve the dispute. At the conclusion of the FRC's 30 day resolution period,

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if tile Army and EPA do not agree, then the position of the EPA Administrator shall be

the position of the United States. A matter shall be considered resolved by FRC only if

all the Orimnizations concur in the resolution. If the United States and all the

Oreanizations do not concur, the decision of the United States shall be implemented.

Promptly upon the conclusion of any FRC meeting at which a dispute is resolved (either

by the Administrator of EPA or through unanimous agreement of the votin 9 members), . 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 of the Administrator of

EPA in Dispute Resolution shall not be delegated.

330.7 In any judicial action brought pursuant to this Agreement, except for an

action to enforce a provision of this 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 such judicial proceeding, except for an action to

enforce any provision of this 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 a judicial challenge to the relevant ROD or IRA Decision

Document, with the following exceptions (the timing of which shall be governed by

paragraph 39.2): (a) a judicial proceeding that solely addresses Shell's obligations to pay

Tenalties; (b) a judicial proceeding to enforce this Agreement or a proceeding in which

other remedies or sanctions are sought against Shell for violating this Agreement; or (c)

a dispute relating to the design or implementation of a Response Action which arises

after the relevant ROD or IRA Decision Document has been finalized. Shell may

commence a judicial proceeding to challenge a determination by EPA 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 may commence such an

action not later than 10 days after completion of Dispute Resolution. Shell may seek

judicial review of any 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 of any dispute before the RMA Council, SAPC or FRC

shall not affect the responsibility of any Organization to continue its involvement in the

assessment and selection of Final 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 of Dispute Resolution or a meeting of the

RMA Council, the SAPC or the FRC and documents prepared solely for use in Dispute

Resolution, (excluding decision memoranda prepared by EPA, and concurred in by the

Organizations, upon the conclusion of Dispute Resolution meetings), shall be considered

statements made, and documents prepared, in furtherance of settlement and shall be

-70-
entitled it) the protection afforded such statements and documents by the Federal Rules

of Evidence and the Colorado Rules of Evidence. 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 of the RMA Council, the SAPC, and

tile FRC only after it has agreeý in writing (i) to be bound by the provisions of

Exhibit C to this Agreement; and (ii) to treat as highly confidential, and not to publish,

divulge, disclose, or make known in any manner or to any extent not authorized or

required by law, any Confidential Information received by or made available to it in

connection with any activities performed pursuant to this 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 of the

agreement attached hereto as Exhibit C. The form attached as Exhibit C shall be

replaced by an executed copy of that agreement, once it has 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 of the United States Fish and Wildlife Service, Region 6, shall

participate as a full voting member of the RMA Council;

(c) If the dispute is raised to the SAPC, the Director of the United

States Fish and Wildlife Service (in addition to the Army, EPA and Shell members of

tile SAPQ shall participate as a full voting member of the SAPC;

(d) If the dispute is raised to the FRC, the Assistant Secretary of the

Interior for Fish, Wildlife and Parks shall participate as a full voting member of the

FRC, and the Administrator of EPA and the Governor of Colorado shall not

participate; and

(e) If the dispute is not resolved by the FRC, it shall, within 45 days of

tile close of the FRC's Dispute Resolution period, be resolved by agreement of the

Secretary of the Army and the Secretary of the Interior.

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XXXT. CONTENTS OF ADMINISTRATIVE RECORD FOR EACH ROD,

CUSTODIAN AND JARDF

(i) Contents of the Administrative Record for the On-Post ROD

31.1 For the On-Post ROD, the Administrative Record shall consist at a

minimum of complete copies of the 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 of Technical Plans, draft Product or Subproduct reports, publications listed in the

bibliography of each Technical Plan or Product or Subproduct report which are not

available to the general public (including damage assessment reports), written comments

upon any drafts (including comments of DOI), minutes of meetings prepared by or

furnisheý to the Army, Army's written responses to comments, final Product or

Subproduct reports, final reports and any amendments of them, the December 6, 1982

Memorandum of Agreement with committee charters, summaries of any information in

these documents which is subject to the attorney-client privilege or work product

exemption, Other Deliverables, comments thereon, and other documents submitted

pursuant to paragraph 31.3.

(b) Other Documents Governing the RIIFS Process

(ii) This Agreement;

(iii) The Settlement Agreement;

(iv) The proposed consent decree filed with the Court on

February 1, 1988 (including the version of the RI/FS Process Document filed on that

date);

(v) The proposed modified consent decree filed with the

Court on June 7, 1988 (including the version of the 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 of the Arsenal, all written comments upon them with

-72-
EPA's responses and any other materials included by EPA in its record for NPL listings

of the 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 on final 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 of Understanding, 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 or Subproducts, including

written conununications concerning the development of each Technical Plan, draft

Technical Plans, written comments on them (including comments of ATSDR and DOI),

draft final Technical Plans for New 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 by SAPC or FRC on the

Technical Plans, final Technical Plans for New Products or Subproducts;

(xi) Publications or documents identified in the bibliography 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 to the general public shall be considered part

of the 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 of custody forms

shall be pan of the Administrative Record and shall be 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;

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(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 of ATSDR 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 of or addressing an Other

Deliverable-, and any document reflecting a modification of the Products:

(xv) Any documents transmitted by ATSDR or DOI to the

RMA Committee;

(xvi) Other documents submitted by or relating to the

involvement of ATSDR, 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 of RI/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 of each public meeting held for the purpose of

receiving comments on the RI/FS Report;

(xxi) Documentation of participation by the TRC, RMA

Committee and RMA Council;

(h) SAJ!C or FRC Activities

(xxii) Notices of SAPC 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 of RINIA 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 of RMA Council meetings, any written decision

issued by the RIMA Council, and any other documents generated by or for the RMA

Council-,

(k) JARQFC Activities

(xxvii) Notices of JARDFC meetings and any written document

issued by JARDFC;

(1) TRQ Activities

(xxiii) Notices of TRC meetings and documents distributed to

the TRC;

(m) Local Governments' Involvement

(xxix) Record of all communications with and information

provided to local govermment officials with respect to the RI/FS;,

(n) Interagency Agreements

(xxx) Any interagency agreements, including agreements with

Corps of Engineers, DOI, etc.

(o) Executive Orders

(xxxi) Executive Orders 12580 and 12316;

(p) Deadlines

(xxxii) Deadlines, each request for extension of Deadlines, -action

on these requests by the RMA Committee, the RMA Council, SAPC or FRC, any notice

of violation of a Deadline and any civil penalty assessment;

75 -
(q) ROD

(xxxiii) Draft ROD (with appendLx of proposed ARARs), written

written 

comments on draft ROD, Army's written response to comments, draft final ROD, any requests invoking Dispute Resolution, any documents requested by or submitted to SAPC, any documents issued by SAPC or FRC on the draft final ROD, with any amendments of the ROD required by SAPC or FRC;

(vWv) Final ROD;

(xxxv) Notice of United States to State of opportunity to concur or not concur in the selected Final Response Action for the On-Post Operable Unit;

(xxxvi) The State's written concurrence or nonconcurrence in the selected Final Response Action for the On-Post Operable Unit;

(xxxvii) All public notices of the issuance of the ROD (including fact sheets and other documents made available to the public which describe the1inal Response Action selected);

(xxxviii) Any subsequent modifications of the ROD; and

(r) Other Documents

(xxxix) Other documents transmitted to or from the Army or EPA concerning the RI/FS;

(s) Index

(xl) Index of contents of the Administrative Record.

(ii) Contents of Administrative Recordsjor ROM for Other Operable Units and IRAs

31.2 For ROM for other Operable Units, the Administrative Record shall consist of complete copies of such documents as the JARDFC may designate, as provided in paragraphs 31.5 and 31.6, not inconsistent with CERCLA and the NCP and pertinent guidance issued by EPA that is not inconsistent with CERCLA and the NCP. Prior to the effective date of this Agreement, the February 1, 1988, and June 7, 1988, proposed consent decrees governed the contents of the Administrative Records for IRA proposed Decision Documents. This Section shall control the contents of the Administrative Records for IRA proposed Decision Documents issued after the effective date of this Agreement.

76-
(iii) Supplementation of Administrative Record for On-Post ROD

31.3 For a period of 90 days after the effective date of this Agreement, any

Organization may submit a list identifying any documents prepared between January 1, 1983, and the effective date of this Agreement for inclusion in the Administrative

Record for the On-Post ROD. Promptly after receipt of notice 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 of such documents for inclusion in the Administrative Record.

During this period, the Army may decline to include in this Administrative Record

documents proffered by an Organization only on the grounds that such documents were

not previously received or generated by the Army, or are 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 of official channels, except where the documents were

not transmitted by or to individuals acting within the scope of their official employment.

(iv) Custodian of Administrative Records

31.4 Within 30 days of the effective date of this Agreement, the Army shall

designate a Custodian of the Administrative Records. Tle Custodian shall be

responsible for maintaining on a contemporaneous basis the Administrative Record for

each ROD and each IRA Decision Document and for preserving 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 on the JARDFC. The JARDFC shall be chaired by

the Custodian. The JARDFC shall meet periodically in an effort to reach a consensus

(to the maximum extent practicable) on the contents of the 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 of the United States, and are preserved at the

JARDF in a secure, cost-effective and space minimizing manner.

31.6 Disputes concerning the documents to be preserved pursuant to

paragraphs 21.1(0, 21.2 and 21.3 which cannot be resolved with 30 days by the JARDFC

shall be referred to the RMA Council for resolution. In the event that the dispute

cannot be resolved by the RMA Council in 45 days, the dispute shall be raised by any

Organization to Dispute Resolution or shall be deemed 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 any judicial 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 of the 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 of the process set forth in this Agreement.

Each Signatory shall inform the other Signatories of the terms of any 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 of the 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

of releases of hazardous substances, pollutants or contamýinants at or from the Arsenal.

If such a release or threat of release presents an immediate threat to human health or

the environment, it shaH be addressed pursuant to Section XMIL If such release or

threat of release 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 of the need for such Supplemental Response Action is based

on a Periodic Review conducted pursuant to Section XXXVI hereof or on some other

source of information.

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33.2 A Supplemental Response Action shall be undertaken only (a) if it is

determined that as a result of the release or threat of release of a hazardous substance,

pollutant or contaminant at or from the Arsenal an additional Response Action is

necessary and appropriate to assure the protection of human health and the environment

and (b) if either:

(i) For Supplemental Response Actions proposed after Finalization

of the 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 of the ROD or based on information received in whole or in part by EPA

following Finalization of the ROD; or

(ii) For Supplemental Response Actions proposed after EPA

Certification, the determination is based on conditions that were 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 of the RODs for the On-Post and Off-Post

Operable Units, any Organization or DOI concludes that a Supplemental Response

Action is necessary, based on the criteria set forth in paragraph 33.2, such Organization

or DOI may promptly notify the others of its conclusion in writing. The members of the

RMA Committee shall confer and attempt to reach consensus on the need for such an

action within 45 days of the receipt of such notice. If within 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 in writing that it intends

to invoke Dispute Resolution. If the RMA Committee is still unable to reach consensus

within 14 days of the issuance of such notice, the question of the need for the

Supplemental Response Action shall be resolved through Dispute Resolution.

33.4 If the RMA committee agrees or if it 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 within 30 days after close of the

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 Plan have been resolved, the Lead Agency shall submit the

Supplemental RI/FS Deadlines as an exhibit to the Technical Program Plan.

33.5 After any disputes with respect to a Supplemental Response Action

Plan have been resolved, the Lead Agency shall conduct a Supplemental RI/FS and

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issue a Supplemental ROD in accordance-with 

The provisions the Supplemental Response Action Plan.

of Supplemental 

in the RI/FS Process Document shall govern the planning and selection

selection Response Actions to the same extent they govern the Dianning and

Organizations 

of Final Response Actions, unless it is the unanimous agreemýnt of the that a particular provision does not apply. The Supplemental ROD shall

Supplemental 

include Design 

Response 

Deadlines that shall govern completion of the design work for the Action.

Supplemental 

33.6 Following issuance of the Supplemental Response Action ROD, the

XXXIV.

Response Action shall be implemented pursuant to that ROD and Section

33.7 Shell shall have the opportunity to participate in the assessment, selection, 

Section XYXVI.

design and implementation of a Supplemental Response Action as provided in

X,)CXIV. DESIGN AN-D--fMPLEMENTATION OF FINAL AND SUPPLEME T I RESPONSE ACTIONS

(i) Response Action .-Covered By This-S-mion

34.1 Paragraphs 34.2-34.24 shall govern design and implementation of the 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 of any ROD that was not the subject of judicial review, the United States shall append as an exhibit to the ROD and transmit to the other Organizations the Design Deadlines for that ROD. If a ROD is subject to judicial review, 45 days after submittal of the ROD to the Court in accordance with paragraph 25.11, the United States shall submit to the Court as an exhibit those Design Deadlines applicable to portions of the ROD, if any, that are not subject to judicial review. At the conclusion of the judicial review of any ROD, the United States shall submit to the Court as an exhibit to the ROD those Design Deadlines applicable to any portion of the ROD that was the subject of judicial review. Once Design Deadlines have been properly appended to the ROD or submitted to the Court pursuant to-this paragraph, they shall be subject to stipulated civil penalties pursuant to Section XXIX, and may be extended only pursuant to paragraph 34.22.

(b) Promptly upon issuance of a Final Design Document, the United States shall append as an exhibit to the ROD and transmit to the other Orgaruzations a list of the 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 of the RMA Committee and the RMA Council

34.3 The RMA Conunittee shall oversee the day-to-day progress of the

design and implementation of Final and Supplemental Response Actions. Promptly

upon issuance of a 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 of that Response Action. The Coordinator may be the

same person who served as the Coordinator for the development of the ROD. The

Coordinator shall be responsible on a daily basis for ensuring that the Lead Agency's

design and implementation of the Response Action is in accordance with the ROD and

the terms of this Agreement.

34.4 Promptly upon issuance of a ROD, the Organizations shall each

designate an employee to serve as its representative on the RMA Committee. Each

such representative shall be responsible on a daily basis for ensuring his or her

respective entity's fulfillment of its responsibilities regarding the design and

implementation of the Response Action in accordance with the terms of the ROD and

this Agreement. This representative may be the same person who served as the

representative on the RNIA Committee during development of the 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 other with respect to the design and

implementation of a 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 in this effort by setting completion dates for design

and implementation tasks, reviewing the progress of these tasks, attempting to resolve

disputes informally, making necessary and appropriate adjustments to schedules, advising

the SAPC whenever a Deadline cannot be attained, and recommending, if warranted,

that a Deadline be extended, as provided in paragraph 34.22.

34.7 Tle RMA Council shall oversee the design and im plementation of

Response Actions and review the work of the RMA Committee. Promptly upon

issuance of a ROD that addresses a Final or Supplemental Response Action, the

Organizations shall each designate an employee to serve on the RMA Council for the

purpose of overseeing the design and implementation of the Response Action addressed

in that ROD. Such employee may be the same person who served on the RMA Council

during development of the ROD. The designee of the Lead Agency for the Response

-81 -
Action shall serve as the chairman of the RMA Council for the purpose of overseeing

the design and implementation of that 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 of the RMA Council

approximately every 3 months, shall transmit to the other members and DOI a proposed

agenda at least 20 days in advance of each meeting and shall transmit a final agenda at

least 10 days in advance of the meeting which shall incorporate any additional matter

that an RMA Council member requests be included. Regular meetings shall be for the

purpose of reviewing and commenting on the progress being made in the design and

implementation of the Response Action.

34.9 Special meetings of the RMA Council shall be held at the request of

the chairman or any RMA Council member. As much notice for special meetings as is

feasible under the circumstances shall be provided by the chairman.

(iv) Shell's Right to Participate as Lead Par1y

34.10 Shell shall have the opportunity to participate as Lead Party in the

design or implementation, or both, of all or portions of Final or Supplemental Response

Actions pursuant to the terms of the Settlement Agreement, the terms of this Section

and the terms of any subsequent Consent Decree. When Shell assumes responsibility

for any portion of the design or implementation of a Response Actiom Shell shall keep

the Lead Agency apprised of its progress so that the Lead Agency may monitor 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 Party responsibility for design or

implementation, or both, of all or portions of a Response Action, it shall be subject to

the stipulated penalty provisions set forth in Section X)GX with respect to any Design

and Implementation Deadlines that apply to the portions of such 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 of Response Actions

34.12 The Lead Party responsible for desip of a Response Action identified

in a ROD shaU designate a Project Manager who shall be responsible for development

of the Design Scope of Work, the Conceptual Design Document, and the Final Design

Document for the Response Action.

34.13 Tle Project Manager shall submit a draft Desip Scope of Work to the

RMA Committee and DOI for review and comment. The RMA Committee members

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shall meet to discuss the draft and attempt to reach unanimous agreement on its

adequacy. At the request of any Organization (or DOI, subject to paragraph 30.2), a

dispute with respect to a draft Design Scope of Work shall be subject to Dispute

Resolution. The failure of an Organization to request Dispute Resolution with respect

to such draft within 30 days of the RMA Committee's receipt of the draft scope of work

shall constitute that Organization's concurrence in the Design Scope of Work.

34.14 Upon unanimous agreement of the RMA. Committee members, or

completion of Dispute Resolution if invoked, 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 of developing, 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 of the 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 for review and comment. The RMA

Committee members shall meet and discuss the draft and attempt to reach unanimous

agreement on the adequacy of the draft, including the Implementation Deadlines

proposed in the draft. At the request of any Organization (or DOI, subject to

paragraph 30.2), any dispute with respect to a draft Final Design Document may be

resolved pursuant to Dispute Resolution. The failure of an Organization to request

Dispute Resolution with respect to such draft within 30 days of the RMA. Committee's

receipt of the 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 of Work or a draft

Final Design Document, and either document is the subject of Dispute Resolution, the

Project Manager shall promptly modify the draft document as necessary to reflect the

outcome of Dispute Resolution and submit the modified document to the other

organizations. If the Organizations fail to agree unanimously that the modified

document accurately reflects the outcome of the Dispute Resolution, any Organization

may submit the issue to Dispute Resolution within ten days after receipt of the modified

document. After the Organizations reach unanimous agreement, or, absent such

agreement, after the time for invoking Dispute Resolution has passed, the Project

Manager shall issue the document in final form.

34.17 After the Final Design Document is issued in final form, the Project

Manager shall promptly begin implementation of the Response Action addressed in the

Final Design Document.

-83 -
(vi) Implementation of Response Actions

34.18 At the monthly meetings of the RMA Conunittee, Project Managers

shall report on their progress in implementing Response Actions. During such meetings,

it shall be the responsibility of each 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 in which a Response Action is being implemented or

whether extension of an 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 of a

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 of this Agreement and (d) whether good cause exists for extending an

Implementation Deadline. The failure of an Organization to invoke Dispute Resolution

with respect to implementation of a Response Action shall constitute such

Organýization's acknowledgement that the Response Action is being properly__

implemented.

34.10 Subject to the following paragraph, if Dispute Resolution is invoked

with respect to implementation of a Response Action, the implementation of the

Response Action sh" not continue until Dispute Resolution has been concluded.

(vii) Right to Judicial Revie

34.21 Following completion of Dispute Resolution regarding either design or

implementation of a Response Action, Shell and the State shall have the right to judicial

review of such issue in accordance with Section XXXIX Whether the design work or

implementation activity that is subject to judicial review may go forward pending such

review over the objection of Sbel] and the State shall be deternýdned by the Court in

accordance with traditional principles governing injunctive actions.

(viii) Extensions of Deadlines

34.22 Design Deadlines and Implementation DeadUnes may be extended for

good cause in accordance with the provisions of paragraphs 26.8-26.18.

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(Lx) EPA Certification

34.23 When the Army determines that any Final or Supplemental Response

Action for which it is the Lead Agency has been completed in accordance with the

requirements of this Agreement, it shall so advise Shell, EPA and the State in writing,

and shall request from EPA certification that the Response Action has been completed

in accordance with the requirements of this 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 in writing within 30 days after receipt of any such notice that the Army has

made such a determination, Shell or the State may submit the matter to Dispute

Resolution within 14 days after the end of the 30-day period. If it 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. If the Army's determination has not been subject to

Dispute Resolution, within 90 days of the receipt of a request from the Army for EPA

Certification, EPA shall advise the Army, Shell and the State in writing that:

(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 in full

the basis of its denial.

34.24 If EPA denies the Army's request for certification pursuant to

paragraph 34.23(b), any Organization may invoke Dispute Resolution to review EPA's

determination. If EPA's denial of certification is upheld in Dispute Resolution, EPA

shall describe the additional work needed to bring the Response Action into compliance

with the requirements of this 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 this paragraph and the previous

paragraph.

MON -AND MAINTENANCE OF RESPONSE ACTI

XXXV. OPERA -ON

STRUCT'URES AND MONITORING OF RESPQNSE ACTIONS

35.1 Prior to the effective date of this Agreement, the February 1, 1988, and

June 7, 1988, proposed consent decrees (and related exhibits) governed the operation

and maintenance of Response Action Structures and the monitoring of Response

Actions. On the effective date of this Agreement, this section shall control the

operation and maintenance of Response Action Structures and the monitoring of

Response Actions. The Organizations recognize tjhat operation and maintenance of

Response Action Structures, and monitoring the effectiveness of Response Actions, may

be necessary for a period of 30 years or more. Shell may participate in such operation,

maintenance and monitoring in accordance with the provisions this Section. Shell's

-85 -
obligation to pay its share of the cost of such 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 of determining if such

Response Action Structure is being properly operated and maintained or if such

Response Action Structure is performing as specified in the Final Design Document.

Such right of inspection shall include the right of free access to such Response Action

Structure at times convenient to the 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 prior written notice of such intent.

35.3 The Organizations recognize that eventually the operation and

maintenance of Response Action Structures at the Arsenal may no longer be necessary

for the protection of human health and environment. When an Organization believes

that operation and maintenance of a Response Action Structure may properly be

discontinued or substantially curtailed, that Organization may propose such cessation or

curtailment in a written notice to the other Organizations at least 45 days before the

date of proposed cessation or curtailment. The notice shall describe the proposed

cessation or curtailment and explain why continued operation or maintenance without

substantial curtailment is no longer necessary to protect human health and the

environment.

35.4 Operation and maintenance of the Response Action Structure may be

discontinued or substantially curtailed if all the Organizations so agree. If the

Organizations are unable to reach unanimous agreement on the proposed discontinuance

or curtailment within 45 days after receipt of the notice proposing discontinuance or

curtailment, any Organization may elevate the proposal to Dispute Resolution. When

there is a dispute with respect to a proposal to discontinue or substantially curtail the

operation and maintenance of a Response Action Structure, the operation and

maintenance of such Response Action Structure shall continue until the dispute is

resolved.

35.5 Notwithstanding any other provision of this Agreement, Shell's

obligation to operate or maintain a Response Action Structure, and its obligation to

monitor the effectiveness of Response Action Structures, shall be in accordance with this

Agreement and contingent on the Army's annual certification that funds will be available

to reimburse Shell for the cost of such 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 of any of Shell'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

of all groundwater pump-and-treat systems pursuant to paragraph 35.4 that further

operation of such Response Action Structures is no longer necessary to protect human

health and the environment.

XXXVI. PERIODIC REVIEW

36.1 Subject to the paragraph 36.2, the United States shall conduct a

Periodic Review of any Final and Supplemental Response Action taken at the Site to

determine whether and to what extent any additional remedial action is necessary. The

Periodic Review shall be conducted in accordance with Section 121(c) of CERCLA, 42

U.S.C. § 9621(c), any pertinent regulation or guidance 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 of the Final Response Action for that

Operable Unit, as long as hazardous substances, pollutants or contaminants remain

within the area covered by that Operable Unit.

36.3 The Periodic Review for the 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 of the Site shall be conducted by the

Lead Agency with responsibility for the Operable Unit. Prior to and during each

Periodic Review, the Organization conducting the Periodic Review shall consult with the

other Organizations concerning the proper scope and design of the review.

36.4 The assessment and selection of any additional Response Action

determined necessary in the course of a Periodic Review shall be in accordance with

Section XXXIII. Except for Emergency Actions, which shall be governed by

Section XXII, such Response Action shall be implemented as a Supplemental Response

Action in accordance with Section X)CIII.

XXXVII. NO11FICAJ1ON

37.1 Except for communications between counsel, all written notices or other

written commu rlicat ions contemplated in this Agreement shall be deemed to have been

duly given when personally delivered to the appropriate individuals indicated below or

when actually received if sent by telefax, 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-
If to the Army:

Program Manager

Office of the 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 of the Army

Office of the Judge Advocate General

Environmental Ia w Division

Attention: DAJA-EL

Washington, D.C. 20310

If to ATSDR:

Agency for Toxic 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 of Health Assessments

ATSDR

1600 Clifton Road

Atlanta, Georgia 30333

Attention: Mark Bashor

-88 -
If to DOI:

Regional Director

U.S. Fish and Wildlife Center

Region 6

P.O. Box 25486

Denver, Colorado 80225

If to DOI concerning Natural Resource Damage Assessment, a copy

should also go to:

United States Department of the Interior

Office of Environmental Project Review

Denver Federal Center, Building 56, Room 1018

Denver, Colorado 80225

Attention: Regional Environmental Officer

If to 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

If to Shell:

Shell Denver Site Project

c/o Holme Roberts & Owen

1700 Lincoln, Suite 4100

Denver, Colorado 80203

Attention: Manager of Denver Site Project

with a copy to:

Shell Oil Company

Legal Department

P.O. Box 2463

Houston, Texas 77252

Attention: General Attorney Environmental

-89-
If to the State:

Colorado Department of Health

4210 East I Ith Avenue

Denver, Colorado, 80-220

Attention: CDH Coordinator for RMA

with a copy to:

CERCLA Litigation Section

Colorado Department of Law

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 of the RMA Comn-Littee or to the Chairman or members of the RNIA

Council shall be sent in care of the addresses set forth in paragraph 37.1 for the

appropriate Organization, and it shall be the responsibility of the 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 of this 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 of the following events: (a) a determination by the President that such action is

of paramount importance, or (b) a determination by the United States Secretary of

Defense or by the United States Secretary of the Army that such action is necessary and

in the interest of national defense. The costs of any action, including any Response

Action, taken by the United States pursuant to or as a result 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 obtain judicial review only of issues 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 of a

Response Action (i.e., IRA, Final Response Action or Supplemental Response Action),

not later than 30 days after issuance of the final ROD or IRA 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 to judicial review, not later than 15 days after the end of the

FRC's 30-day resolution period; (d) for all disputes arising under the Financial Manual,

within the time period specified in the Financial Manual; (e) to enforce compliance with

any provision of this Agreement, not later than 15 days after the end of the period of

informal dispute resolution provided for in paragraph 30.1.

39.3 The standard and scope of review of any issue concerning the

assessment and selection of Response Actions shall be the standard and scope of review

applicable to actions brought pursuant to Section 107 of CERCLA, 42 U.S.C. S 9607, at

the time that such judicial review is sought. Ile scope of review shall be de novo, and

the standard of review shall be the preponderance of the evidence for a question of

whether and to what extent stipulated civil penalties are due. Whether the United

States may permit, the use of any portion of the Arsenal pursuant to Section XLIV over

Shell's objection pending judicial review shall be determined by the. Court in accordance

with traditional principles governing injunctive actions. For all other issues, including

issues concerning compliance with this Agreement and the design and implementation of

Response Actions and Natural Resource Damages, the standard and scope of judicial

review shall be as the Court determines to be appropriate.

39.4 Nothing in this Agreement shall be construed to authorize any person to

seek judicial review of any action of the Army, EPA, Shell or the State where such

review is barred by any provision of CERCLA, including Section 113(h) of CERC" 42

U.S.C. s 9613(h).

XL. FUNDINQ

40.1 Any requirement for the payment or obligation of funds by the United

States or any agency thereof, established by the terms of this Agreement shall be subject

to availability of appropriated funds, and no provision herein shall be interpreted to

require obligation or payment of funds in violation of the Anti-Deficiency Act, 31 U.S.C.

§ 1341. It is the expectation of the Organizations that all obligations of the 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 of the United States under this

Agreement. In cases where payment or obligation of funds would constitute a violation

of the Anti-Deficiency Act, the dates established for payment or obligation shall be

appropriately adjusted. Notwithstanding any such adjustment of tile date established for

payment, interest shall continue to accrue from and after the original due date in

accordance with the terms of the Settlement Agreement.

40.1 The Army shall submit an annual report to Congress which shall

include, at a minimum: (a) a description of the Army's progress in planning, 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 of this Agreement, Shell's

obligation to incur costs pursuant to an agreement with the head Agency shall be

contingent on the Army's certification that funds will be available to reimburse Shell for

the cost of such Response Actions to the extent that Shell will be entitled to

reimbursement pursuant to Section VI of the Settlement Agreement; except that nothing

in this Section shall be construed to relieve Shell of any Shell obligations under this

Agreement or the Settlement Agreement for the designated Shell-Only Response

Actions in Exhibit D to the Settlement Agreement.

XLL ATSDR HEALTH ASSESSMENT OR HEALTH EFFECTS STUDY

41.1 Prior to the effective date of this Agreement, the February 1, 1988, and

June 7, 1988, proposed consent decrees governed the performance by ATSDR of its

preliminary Health Assessment. On the effective date of this Agreement, this Section

shall control ATSDR's performance of any further Health Assessments or Health Effects

Studies. ATSDR shall perform one or more Health Assessments for the Site pursuant

to Section 104(i) of CERCLA 42 U.S.C. s 9604(i), and any applicable final Federal

regulations that are not inconsistent with CERCLA. The results of any Health

Assessment performed by ATSDR shall be set forth in a proposed report, which shall be

submitted to EPA for review and comment. EPA shall make copies of the 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 for public comment. ATSDR shall publish notice of the availability of the

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. After considering all

comments received on the draft-final report, ATSDR shall issue a final report, a copy 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 of a Health Assessment.

921 -
41.3 ATSDR may perform one or more Health Effects Studies for the Site

pursuant to Section 104(i) oi CERCLA, 42 U.S.C. § 9604(i). Prior to initiating a Health

Effects Study, ATSDR shall advise EPA that it has determined there to be a need fo'r

Such study. EPA, after consultation with the other Organizations, may provide

recommendations to ATSDR concerning the proper scope of the proposed Health

Effects Study and may provide, or advise ATSDR of the availability of any data or other

information which EPA believes would be pertinent to such study.

41.4 The results of a Health Effects Study shall be set forth in a draft firfla

report, which shall be made available for public comment. ATSDR shall publish noýce

of the availability of the 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 on the draft final report, ATSDR shall issue a final

report, a copy of which 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 a Health Effects Study.

41.6 At the request of ATSDR, the Organizations shall promptly make

appropriate representatives available to respond to questions from ATSDR, and shall

provide pertinent written information to ATSDR, for use in a Health Assessment or a

Health Effects Study. At the request of ATSDR, the Organizations shall meet with

ATSDR, either individually or in full Committee, for the purpose of providing such

information. Copies of any written communication from an Organization to ATSDR

shall be sent to the other Organizations at the time it is sent to ATSDR.

41.7 Whenever, during the course of, or as a result of a Health Assessment

or a Health Effects Study, ATSDR determines there to be an imminent danger to

human health as the result of the release or threatened release of a hazardous substance

at or from the Arsenal, ATSDR shall promptly advise the Organizations of such

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 of the Federal government, unless the Organizations and DOI agree otherwise.

'nie Army (or Shell, when it is acting as Lead Party), in planning and assessing, selecting

and implementing Response Actions shall, to the extent required by the NCP and in

consultation with DOI, undertake appropriate actions necessary to protect and to restore

natural resources under the United States' trusteeship that have been damaged by the

release of hazardous substances at or from the Arsenal.

93 -
42.2 Upon execution of this Agreement, the Army, in consultation with the

State, Shell and appropriate Federal agencies, shall designate the Chairman of the RMA

Council to be the lead authorized official, to act on behalf of all Federal government

agencies, which, pursuant to CERCLA, are trustees for public natural resources on or

off the Arsenal and within the Federal government's trusteeship authority that have been

injured, destroyed or lost as a result of the release of hazardous substances at or from

the Arsenal.

42.3 After Finalization of the ROD for the On-Post Operable Unit or

Finalization of the 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 of determining whether and to what extent

there is any residual injury to the natural resources arising from the release of hazardous

substances at or from the Arsenal. If the lead authorized official in consultation with

DOI determines that there is sufficient residual injury to proceed, 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 of baseline conditions and'baseline services and of

the reduction in services that may have resulted from the release of hazardous

substances at or from 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 of the public at large.

42.5 The lead authorized official shall consult and coordinate with Shell, the

State, and appropriate Federal agencies in the preparation of the preassessment screens,

Natural Resource Damage Assessment Plan, Natural Resource Damage Assessment, the

post-assessment phase, particularly with respect to the sharing of the data and the

development of the Natural Resource Damage Assessment Plan.

42.6 If the 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 in writing of that decision at least 30 days before

proceeding with development of the Natural Resource Damage Assessment Plan. Such

notice shall include a copy of the preassessment screens and shall provide Shell, the

State, and appropriate Federal agencies an opportunity to participate in the .

development of the Natural Resource Damage Assessment Plan. Shell and the Army

may participate in the development of any aspect of the 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 of the public for comment. Shell,

the State, appropriate Federal agencies, and interested members of the public shall have

-94-
30 days in which to comment. The lead authorized official shall have 30 days in which

to respond in Writing to those comments. After the lead authorized official's response,

Shell or DOI may invoke Dispute Resolution over any aspect of the draft Natural

Resource Damage Assessment Plan.

4,?.8 After the end of the comment and response periods and consistent with

the results of Dispute Resolution, if invoked, the lead authorized official shall issue the

final Natural Resource Damage Assessment Plan. If, in the opinion of the lead

authorized official, a change in the applicable statute or regulations requires

modifications of the final Natural Resources Damage Assessment Plan, such

modifications shall be subject to the notice, comment and Dispute Resolution

procedures set forth in paragraph 42.7.

42.9 At the option of the lead authorized official, Shell, the Army, or

another Federal natural resource trustee, under the direction, guidance and monitoring

of the lead authorized official, may conduct any part of the natural resource damage

assessment. The Natural Resource Damage Assessment shall be conducted as set out in

the Natural Resource Damage Assessment Plan and any modifications thereto.

42.10 Prior to issuance of a Report of Assessment, the lead authorized

official shall issue its draft Report of Assessment to Shell, the State, and appropriate

Federal agencies. If Shell disagrees with the draft Report of Assessment, Shell may

invoke Dispute Resolution.

XLIII. SHELL PARTICIPATION IN RESPONSE AMONS

43.1 Prior to the effective date of this Agreement, the February 1, 1988, and

June 7, 1988, proposed consent decrees governed Shell's participation in Response

Actions. On the effective date of this Agreement, 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 for the 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 of Response Action Structures~

Shell may participate 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 in paragraph 43.1, in

accordance with the terms and conditions of paragraphs 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 of time

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 of a Response Action Structure

constructed by Shell or the Lead Agency, that Shell wishes to conduct as Lead Party.

Within 30 days after receipt of such identification, the Lead Agency shall determine

whether it is more appropriate for Shell rather than the Lead Agency to conduct the

identified Response Action work, and shall notify Shell in writing of its determination.

If the Lead Agency determines that it is not more appropriate for Shell to conduct any

identified Response Action work, Shell may invoke Dispute Resolution. Only the Army,

EPA, and Shell shall participate in Dispute Resolution on this issue. The issue to be

addressed during Dispute Resolution is whether, considering all relevant circumstances,

it is more appropriate for Shell to conduct the Response Action work than the Lead

Agency. The result of Dispute Resolution of that issue shall not be subject to judicial

review.

43.5 Once it has been determined, either by the Lead Agency or through

Dispute Resolution, that it is 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 to the Settlement Agreement, develop and sign a

Scope of Work by which the Response Action work shall be conducted. If Shell or the

Lead Agency are unable to agree upon a Scope of Work, either may invoke Dispute

Resolution. Only the Army, EPA and Shell shall participate in Dispute Resolution on

this issue.

43.6 Payment of the costs incurred by Shell in conducting Response Actions

shall be governed by Sections VI and VII of the Settlement Agreement. Notwitlistanding any other provisions of this Agreement, or the Settlement Agreement, Shell's

obligation to incur costs pursuant to an agreement with the Lead Agency shall be

contingent on the Army's certification that funds will be available to reimburse Shell for

the cost of such Response Actions to the extent that Shell will be entitled to such

reimbursement pursuant to Section VI of the 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 of the United States upon acceptance of Shell's

work of construction or placement of that Response Action Structure; and (b) the

lrondale System shall become the property of the United States upon Finalization of the

ROD for the On-Post Operable Unit.

43.8 Notwithstanding any other provision of this Section, the Lead Agency

shall, subject to the Dispute Resolution and judicial review provisions of this Agreement,

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 -ON OWNERSHIP, USE. AND TRANSFER

44.1 The United States shall retain title to the Arsenal, subject to the

provisions of this Section.

44.2 Prior to the effective date of this 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 of the Arsenal. On the

effective date of this Agreement, this Section shall control the implementation and

application of restrictions on ownership, use and transfer of the Arsenal. The Parties

have agreed that certain existing restrictions on the use of resources on and under the

Arsenal should continue after the execution of this Agreement to assure continued

protection of human health and the environment and shall amend the Technical

Program Plan to include such restrictions. The United States intends that significant

portions of the Arsenal shall eventually be available for beneficial public uses that are

consistent with the following restrictions, which shall be maintained and enforced for all

property %vithin the boundary of the Arsenal, subject only to the provisions of

paragraph 44.6 and Section XLV.

(a) Residential development on the Arsenal shall be prohibited.

(b) The use of groundwater located under, or surface water located on,

tile Arsenal as a source of potable water shall be prohibited.

(c) Consumption of all fish and game taken on the Arsenal shall be

prohibited, although hunting and fishing on the Arsenal for non-consumptive use may

occur if subject to appropriate restrictions.

(d) Agricultural, including all farming activities such as the raising of

livestock, crops, or vegetables, 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 of wildlife to the extent required by the Endangered

Species Act, 16 U.S.C. §§ 1531 et seQ, migratory birds to the 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 of the Arsenal if such

alteration may likely have an adverse effect on the natural drainage of the Arsenal for

I'loodplain management, recharge of groundwater, operation and maintenance of

Response Action Structures, or protection of wildlife habitat(s).

44.3 The United States shall maintain security at the Arsenal adequate to

assure the proper construction, operation, and maintenance of Response Action

Structures, the proper implementation and monitoring of Response 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 of resources 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 of human health or the

environment; or (c) necessary to assure the proper construction, operation, and

maintenance of Response Action Structures or to assure the proper implementation and

monitoring of Response Actions at the Arsenal or; (d) required by the Endangered

Species Act, the Migratory Bird Treaty 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 of Response Actions for the Site, including the

identification and application of ARARs and the development and application of any

other standard, requirement, Criterion or limitation for a Response Action, shall be

based upon and consistent %vith the terms and conditions of this Agreement, including

without limitation the restrictions and requirements set forth in paragraphs 44.2 and

44.3, or developed pursuant to paragraph 44.4 and appended to the Technical Program

Plan. Each ARAR identified, or other standard, requirement, criterion or limitation

developed, for a Response Action conducted on or off the Arsenal and its application to

Response Actions for the Site (including the location on or off the Arsenal where the

ARAR or other standard, requirement, criterion or limitation must be met, and a target

date for meeting 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 of this Agreement, including

without limitation the restrictions and requirements set forth in paragraphs 44.2 and 44.3

or developed pursuant to paragraph 44.4, such Response Actions are conditional in

nature; that is, if any such restriction or requirement 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 of human health

and the environment. The assessment, selection, design and implementation of any such

Response Action shall be conducted in accordance with the terms of Sections XXIV and

XXV. When conducting a Periodic Review pursuant to Section XXXV1, the United

States shall assess the effectiveness of the 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 if any restriction or requirements may be removed or

modified. If the Army believes that, as a result of Response Actions previously taken,

any of the restrictions on ownership, use and transfer listed in paragraph 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 of resources on and

tinder the Arsenal by the United States or by persons entering on the Arsenal with the

consent of the United States, including licensees and lessees of the 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 of any

portion of the Arsenal by non-Federal parties shall require such parties to comply with

all such restrictions and requirements.

44.8 If, after the effective date of this Agreement, the United States decides

to lease, grant a license, or otherwise provide for the use by any non-Federal party of

the Arsenal, or any portion thereof, it shall first issue and deliver to Shell a proposed

Report of Availability, which shall include, at a minimum, the following information: (a)

a legal description of the land involved (together with a plat depicting such land); (b) a

description of the nature, scope, and extent of any hazardous substance, pollutant, or

contaminant located in, on, or under the land involved, as reflected by the On-post

Rl/FS (as affected by the implementation of Response Actions) or as otherwise known

to the United States; (c) the specific use(s) of the property to be allowed by the lease,

license, or other instrument and the means by which the non-Federal party will

implement those specific uses (including the extentof any 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 other instrument 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 30 days after receipt of any proposed

Report of Availability in which to provide 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 30 days

after receipt of those comments. After receipt of the United States' response, if any

Organization disagrees about the proposed Report of Availability, then any Organiiation

may invoke Dispute Resolution by notifying the RMA Council of the dispute within 14

days after receipt of the United States' response. The United States shall not take any

action with respect to the lease, license, or other instrument until the period for invoking

Dispute Resolution has expired. If Shell or the State invokes Dispute Resolution, the

United States shall not take any action with respect to the lease, license, or other

instrument until completion of Dispute Resolution. Ile only issue to be addressed

during Dispute Resolution or judicial 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 of human health and the

environment. If the proposed action is determined to be consistent with the protection

of human health and the environment, it may proceed. If Dispute Resolution is invoked

pursuant to this paragraph, and at that time a Federal agency other than the Army has

management authority over the property involved in the dispute, appropriate officials of

that Federal agency shall participate in Dispute Resolution in lieu of Army officials.

Following Dispute Resolution, Shell shall have the right to seek judicial review of the

FRC's decision by filing a motion with the Court within 30 days of that decision. The

Report of Availability shall be revised to reflect the outcome of Dispute Resolution or

judicial review.

44.10 The United States shall incorporate into the lease, license, or other

instrument all restrictions and requirements identified in the Report of Availability and

any restrictions and requirements resulting from Dispute Resolution or judicial review.

A copy of the lease, license, or other agreement shall be provided to Shell 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 of Availability issued pursuant

to paragraph 44.8, (b) the comments of Shell and the State on the Report of

Availability, (c) the United States' response, and (d) a statement of whether Dispute

Resolution was invoked and the results of that process. The United States shall then

record the lease, license, or other instrument and the attachments listed in the previous

sentence in the real property records of Adams 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 of the Arsenal, or of any portion thereof, or for any amendment,

modification, or other change to any such lease, license, or other instrument.

44. I'd'. Any person having actual or constructive notice of any 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 of a

Signatory upon unanimous agreement of the Signatories.

45.2 Upon incorporation of this Agreement into a Consent Decree that has

been entered by the Court, the terms of this Agreement may be amended only by

modifying the Consent Decree pursuant to the terms and conditions of that Decree.

45.3 Notwithstanding the preceding paragraph, if the United States Supreme

Court declares any provision(s) in CERCLA unconstitutional, or if the United States

elects not to appeal such a declaration by a lower Federal court, any Party without the

approval of the other, may petition the Court to modify such Consent Decree in light of

anv such declaration. Any modification to such Consent Decree shall be 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 of the Army:

Date LEWIS D. WALKER

Deputy for Enviroament

Safety & Occupational Health

.102-
By the United States Environmenia-I Protection Agency*

Ua-t e J. 4WINSTON PORTER

Assistant Administrator 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 -
Bv the United States Department-of Interior

I - 4 V -e'? - Date GALEN BUTERBAUOH

Regional Direcltor

Region 6

U.S. Fish and Wildlife Service

105 -
By- the United States Department of Interior:

J"&' ý / ? ý I /,", L-4-Au,

Date I K-CVY NORTON-DUNLOF

Assistant Secretary for Fish,

Wildlife and Parks

U.S. Department of Interior

106 -
By the Agena fo Toxic Substances and Disease Registry. United Sta DeDartment of Health and Human Services:

Date HARRY JOHNSON

Associate Administrator

Agency for Toxic Substances

and Disease Registry

Department of Health and

Human Services

1 C"tý C4-. Xcc-Aý

PAULA L. KOCHER

Senior Attorney

Office of the General Counsel

Agency for Toxic Substances

and Disease Registry

Department of Health and

Human Services

107-
By the United States Department of Justice:

Date MYLIU E * rLM I

Deputy Assistant

Attorney General

108-
FOR SHELL OIL COMPANY:

Date

Vice President

Date HOLME ROBLTRT3 & OWEN

A. EDGAR BENTON

DANIEL S. HOFFMAN

EDWARD J. McGRATH

Attorneys for Shell Oil Company

1700 Lincoln, Suite 41W

Denver, Colorado 80203

-109-
EXHIBIT A

TO FEDERAL FACILITY AGREEMENT

THE ARSENA
THE 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-1
The 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-2
EXHIBIT B

TO FEDERAL FACILITY AGREEMENT

THE SITE
EXHIBIT 6

THE SITE

LEGEND BRIGHTON

.f-00*SITE BOUNDARY

OFF-POST AREA

F-I THE ARSENAL

-A

SC A L E

2 W ES

Q,

C, 2 KM 15

HEND SON

36

1 6

(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-)

CLQ
EXHIBIT C

TO

FEDERAL FACILLITY AGREEMENT

SUPPLEMENTAL AGREEMENT BY THE STATE TO

BE BOUND BY THE DISPUTE RESOLUTION PROCESS---_

ESTABLISHED PURSUANT TO THE PROVISIONS OF THE

FEDERAL FACILITY AGREEMENT
EXHIBIT 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 of the Interior ("DOI") and

Shell Oil Company ("Shell") have established a process for resolving disputes ("Dispute

Resolution") that arise concerning the planning, selection and implementation of

response actions resulting from the release or threatened release of hazardous

substances, pollutants or contaminants at or from Rocky Mountain Arsenal.

B. The Dispute Resolution Process is set forth in the accompanying

Federal Facility Agreement ("Agreement").

C. Ile State of Colorado (the "State") has not yet signed the Agreement.

D. The State, the Army, EPA and Shell believe that it is desirable for the

State to participate in Dispute Resolution, even though the State is -not yet a signatory

to the Agreement.

E. Paragraph 30.2 of the Agreement requires that before the State may

participate in Dispute Resolution, the State must agree to comply 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 of paragraph 30.1 of the

Agreement that the State agree to comply with the procedures for the Dispute

Resolution process.

C1
Supplemental 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 of the Agreement.

2. After execution of this Supplemental Agreement by all the parties, the Army, EPA, DOI and Shell shall not modify any provision of the Agreement that relate's directly to the State's right to participate in the Dispute Resolution process under the Agreement, without the consent of the State.

3. Ile State agrees to comply with all applicable provisions of the

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, if no 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 to resolve 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, if any, 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 seek judicial review of an issue in dispute while the

Dispute Resolution process is under way.

(f) Tle State may only seek judicial review of an issue if the iss ' ue is

subject to judicial review under the Agreement and the State first attempted to resolve

the matter through Dispute Resolution.

W The State shall comply with applicable provisions of paragraph 39.2 of

the Agreement concerning timing of judicial review.

(h) The applicable provisions of the Agreement setting forth how, and by

whom, a dispute is to be resolved at any given level in the Dispute Resolution process
shall be binding upon the State subject to judicial review as set forth in of the

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 or to any extent not authorized by law, any

Confidential Information (as defined in the Agreement) received by, or made available

to the State, in coanection with any activities performed pursuant to the Consent

Decree.

(k) Oral statements made in the course of Dispute 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 of settlement and entitled to the protection afforded such statements and

documents by the Federal Rules of Evidence and the Colorado Rules of Evidence.

Persons who participate 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 of the 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 of Justice

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 the Department of Health

Date THOMA9 M. VERNON

Executive Director

By the Department of Law

Date DUANE WOODARD

Attorney General

C6 -