Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Notices 62849

Janet Sapadin (2-OPM-PPI), US EPA

Region 2, 290 Broadway, 26th floor,

New York, NY 10007-1866, (212) 637-

3584 (NJ, NY, PR, VI)

Jeff Burke (3ES43), US EPA Region 3,

841 Chestnut Bldg., Philadelphia PA

19107, (215) 597-8327 (DC, DE, MD,

PA, VA, WV)

Carol Monell, US EPA Region 4, 345

Courtland St., NE, Atlanta, GA 30365,

(404) 347-3555, x6894 (AL, FL, GA,

KY, MS, NC, SC, TN)

Phil Kaplan (HRP-8J), US EPA Region 5,

77 West Jackson Blvd., Chicago, IL

60604-3590, (312) 353-4669 (IL, IN,

MI, MN, OH, WI)

Linda Thompson (6EN-XP), US EPA

Region 6, 1445 Ross Ave., Suite 1200,

Dallas, TX 75202, (214) 665-6568 (AR,

LA, NM, OK, TX)

Steve Wurtz, US EPA Region 7, 726

Minnesota Ave., Kansas City, KS

66101, (913) 551-7315 (IA, KS, MO,

NE)

Linda Walters (8PM-SIPO), US EPA

Region 8, 999 18th St., Suite 500,

Denver, CO 80202-2405, (303) 312-

6392 (CO, MT, ND, SD, UT, WY)

Eileen Sheehan/Bill Wilson (H-I-B), US

EPA Region 9, 75 Hawthorne St., San

Francisco, CA 94105, (415) 744-2190/

2192 (AZ, CA, GU, HI, CNMI, RP, AS)

Carolyn Gangmark, US EPA Region 10,

1200 Sixth Ave., Seattle, WA 98101,

(206) 553-4072 (AK, ID, OR, WA)

Dated: November 27, 1995.

William H. Sanders III,

Director, Office of Pollution Prevention and

Toxics.

[FR Doc. 95–29832 Filed 12–6–95; 8:45 am]

BILLING CODE 6560–50–F

[FRL–5340–6]

Superfund Program; Revised Model De

Minimis Contributor Consent Decree

and Administrative Order on Consent

AGENCY: Environmental Protection

Agency.

ACTION: Notice.

SUMMARY: The Agency is publishing

today the revised ‘‘Model CERCLA

Section 122(g)(4) De Minimis

Contributor Consent Decree’’ and the

revised ‘‘Model CERCLA Section

122(g)(4) De Minimis Contributor

Administrative Order on Consent.’’

These models, developed by the Agency

and the U.S. Department of Justice,

supersede the ‘‘Interim Model CERCLA

Section 122(g)(4) De Minimis Waste

Contributor Consent Decree and

Administrative Order on Consent’’

issued on October 19, 1987, and

published at 52 FR 43,393 (November

12, 1987). They are designed as

guidance for Agency and Department

staff when negotiating CERCLA Section

122(g)(1)(A) de minimis contributor

settlements. The Agency is publishing

the models in their entirety, along with

the September 29, 1995 joint

memorandum of the EPA and the U.S.

Department of Justice announcing their

issuance, to inform affected members of

the public of their existence and

content.

FOR FURTHER INFORMATION CONTACT:

Janice C. Linett, Mail Code 2272, Office

of Enforcement and Compliance

Assurance, Regional Enforcement

Division, U.S. Environmental Protection

Agency, 401 M Street, S.W.,

Washington, D.C. 20460, (202) 260–

7116.

Dated: October 26, 1995.

Susan Brown,

Acting Director, Office of Site Remediation

Enforcement.

September 29, 1995.

MEMORANDUM

SUBJECT: Issuance of Revised ‘‘Model

CERCLA Section 122(g)(4) De Minimis

Contributor Consent Decree and

Administrative Order on Consent’’

FROM: Jerry Clifford, Director, Office of

Site Remediation Enforcement, U.S.

Environmental Protection Agency,

Bruce S. Gelber, Acting Chief,

Environmental Enforcement Section,

Environment and Natural Resources

Division, U.S. Department of Justice

TO: Regional Counsel, Regions I–X,

Regional Waste Management Division

Directors, Regions I–X, Financial

Management Officers, Regions I–X,

Assistant Chiefs, Environmental

Enforcement Section

We are pleased to issue the revised

‘‘Model CERCLA Section 122(g)(4) De

Minimis Contributor Consent Decree’’

and the revised ‘‘Model CERCLA

Section 122(g)(4) De Minimis

Contributor Administrative Order on

Consent.’’ These models supersede the

‘‘Interim Model CERCLA Section

122(g)(4) De Minimis Waste Contributor

Consent Decree and Administrative

Order on Consent’’ issued on October

19, 1987, and published at 52 Fed. Reg.

43,393 (1987). They represent the latest

thinking on CERCLA Section

122(g)(1)(A) de minimis contributor

settlements and are the product of years

of experience gained in administering

the de minimis settlement provisions of

CERCLA. These revised models are

needed to implement the early de

minimis expedited settlement pilots that

are part of the Superfund

Administrative Reforms initiative and

will provide valuable tools in fostering

de minimis settlements in general.

These models are to be used as

guidance by EPA and DOJ staff when

negotiating de minimis contributor

settlements. We encourage our staffs to

adhere to them as closely as possible so

as to conform with current settlement

practices and procedures. We believe

use of the models will help expedite

negotiation of de minimis settlements,

increase fairness and national

consistency, and streamline review and

approval of de minimis consent decrees

and consent orders. When seeking

approval of any settlement based upon

one of these models, staff should

identify any significant deviation from

the relevant model and the basis for the

departure. For DOJ staff, these models

are available electronically on the

Section’s work product directory,

EESINDEX, as N: \ NET\ SS52\ UDD\

EESINDEX\ CERMODEL\ 122G4.CD or

122G4.AOC.

We would like to thank all EPA and

DOJ staff who assisted in the

development of these models. If you

have any questions about the models,

please contact Janice Linett of the

Regional Support Division (RSD) at

(703) 978–3057 or Tom Mariani of the

Environmental Enforcement Section

(EES) at (202) 514–4620. The EPA

Regions may address questions about

case-specific matters to the RSD

attorney assigned to the case. DOJ staff

should direct questions about casespecific matters to their senior attorneys

or Assistant Chief or to Tom Mariani,

Joe Hurley, or Mike Goodstein, EES’ de

minimis settlement coordinators.

Attachments

cc: Lawrence E. Starfield, Acting

Associate General Counsel, Solid

Waste and Emergency Response

Division

Stephen D. Luftig, Director, Office of

Emergency and Remedial Response

Jack L. Shipley, Director, Financial

Management Division

Letitia Grishaw, Chief, Environmental

Defense Section

United States Environmental Protection

Agency and United States Department

of Justice Model Cercla Section

122(g)(4) De Minimis Contributor

Consent Decree and Administrative

Order on Consent

These models and any internal

procedures adopted for their

implementation and use are intended as

guidance for employees of the U.S.

Department of Justice and U.S.

Environmental Protection Agency. They

do not constitute rulemaking by the

Department or Agency and may not be

relied upon to create a right or a benefit,

substantive or procedural, enforceable at

law or in equity, by any person. The
62850 Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Notices

1Follow local rules for caption format.

Department or Agency may take action

at variance with these models or their

internal implementing procedures.

Model Cercla Section 122(g)(4) De

MinimisContributor Consent Decree

Table of Contents

I. Background

II. Jurisdiction

III. Parties Bound

IV. Statement of Purpose

V. Definitions

VI. Payment

VII. Failure to Make Payment

VIII. Certification of Settling Defendant

IX. Covenant Not To Sue By United States

X. Reservations of Rights by United States

XI. Covenant Not to Sue by Settling Parties

XII. Effect of Settlement/Contribution

Protection

XIII. Retention of Jurisdiction

XIV. Integration/Appendices

XV. Public Comment

XVI. Effective Date

XVII. Signatories/Service

Model Cercla Section 122(G)(4) De

Minimis Contributor Consent Decree

In the United States District Court for the

District of [llllll] [llllll]

Division 1

United States of America, Plaintiff, v.

[Defendants] Defendants.

[Civil Action No. llll]

Judge llllllllllllllllll

Consent Decree

[Note: If the complaint includes causes of

action which are not resolved by this consent

decree or names defendants who are not

signatories to this consent decree, the title

should be ‘‘Partial Consent Decree.’’]

I. Background

A. The United States of America

(‘‘United States’’), on behalf of the

Administrator of the United States

Environmental Protection Agency

(‘‘EPA’’), filed a complaint in this matter

pursuant to [[insert causes of action and

relief sought, e.g., ‘‘Sections 106 and

107 of the Comprehensive

Environmental Response,

Compensation, and Liability Act of

1980, as amended (‘‘CERCLA’’), 42

U.S.C. §§ 9606 and 9607, seeking

injunctive relief regarding the cleanup

of the [insert site name] in [insert City,

County, State] (‘‘Site’’), and recovery of

costs incurred and to be incurred in

responding to the release or threat of

release of hazardous substances at or in

connection with the Site’’]].

B. As a result of the release or

threatened release of hazardous

substances, EPA has undertaken

response actions at or in connection

with the Site under Section 104 of

CERCLA, 42 U.S.C. 9604, and will

undertake response actions in the

future. In performing these response

actions, EPA has incurred and will

continue to incur response costs at or in

connection with the Site.

[Note: Insert brief description of response

actions undertaken at the site to date by EPA

or private parties, noting whether a removal,

RI/FS or ROD(s) have been completed.

Describe briefly any previous settlements for

performance of work or recovery of costs.

Note whether further response action is

planned.]

C. The Regional Administrator of

EPA, Region lll, or his/her

delegatee, has determined the following:

1. prompt settlement with each

Settling Defendant is practicable and in

the public interest within the meaning

of Section 122(g)(1) of CERCLA, 42

U.S.C. 9622(g)(1);

2. the payment to be made by each

Settling Defendant under this Consent

Decree involves only a minor portion of

the response costs at the Site within the

meaning of Section 122(g)(1) of

CERCLA, 42 U.S.C. 9622(g)(1), based

upon EPA’s estimate that the total

response costs incurred and to be

incurred at or in connection with the

Site by the EPA Hazardous Substance

Superfund and by private parties is

[insert either ‘‘$lll’’ or ‘‘between

$lll and $lll’’]; and

3. the amount of hazardous

substances contributed to the Site by

each Settling Defendant and the toxic or

other hazardous effects of the hazardous

substances contributed to the Site by

each Settling Defendant are minimal in

comparison to other hazardous

substances at the Site within the

meaning of Section 122(g)(1)(A) of

CERCLA, 42 U.S.C. 9622(g)(1)(A). This

is because [[insert volume and toxicity

criteria used to qualify as a de minimis

party under this consent decree, e.g.:

‘‘the amount of hazardous substances

contributed to the Site by each Settling

Defendant does not exceed [insert either

‘‘lll% of the hazardous substances

at the Site,’’ or ‘‘lll pounds/gallons

of materials containing hazardous

substances,’’] and the hazardous

substances contributed by each Settling

Defendant to the Site are not

significantly more toxic or of

significantly greater hazardous effect

than other hazardous substances at the

Site.’’]]

[Note: Where practicable, an attachment

listing the volume and general nature of the

hazardous substances contributed to the site

by each settling defendant, to the extent

available, may be included as an appendix.

The total estimated volume of hazardous

substances at the site should be noted on the

attachment, if one is used.]

D. The Settling Defendants do not

admit any liability to Plaintiff arising

out of the transactions or occurrences

alleged in the complaint.

E. The United States and Settling

Defendants agree that settlement

without further litigation and without

the admission or adjudication of any

issue of fact or law is the most

appropriate means of resolving this

action with respect to Settling

Defendants.

Therefore, with the consent of the

Parties to this Consent Decree, it is

ordered, adjudged, and decreed:

II. Jurisdiction

1. This Court has jurisdiction over the

subject matter of this action pursuant to

28 U.S.C. 1331 and 1345 and 42 U.S.C.

9613(b), and also has personal

jurisdiction over Settling Defendants.

Settling Defendants consent to and shall

not challenge the terms of this Consent

Decree or this Court’s jurisdiction to

enter and enforce this Consent Decree.

III. Parties Bound

2. This Consent Decree is binding

upon the United States and upon

Settling Defendants and their [heirs,]

successors and assigns. Any change in

ownership or corporate or other legal

status of a Settling Defendant, including

but not limited to, any transfer of assets

or real or personal property shall in no

way alter such Settling Defendant’s

responsibilities under this Consent

Decree.

IV. Statement of Purpose

[Note: As drafted, this Statement of Purpose

assumes that all settling defendants are

making a cash payment, which includes a

premium amount, in exchange for a full and

final settlement with the United States for all

civil liability under CERCLA Sections 106

and 107 with respect to the site as a whole.

This Statement of Purpose will need to be

amended if the settlement is of narrower

scope with respect to some or all settling

defendants because, e.g., it relates to only one

operable unit, or it includes a reservation of

rights for cost overruns. When using this or

any other Statement of Purpose, be sure that

it is consistent with the Covenant Not to Sue,

the Reservations of Rights, and the definition

of ‘‘matters addressed’’ in the Contribution

Protection provision.]

3. By entering into this Consent

Decree, the mutual objectives of the

Parties are:

a. to reach a final settlement among

the Parties with respect to the Site

pursuant to Section 122(g) of CERCLA,

42 U.S.C. 9622(g), that allows Settling

Defendants to make a cash payment,

including a premium, to resolve their

alleged civil liability under Sections 106

and 107 of CERCLA, 42 U.S.C. §§ 9606
Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Notices 62851

2The Superfund currently is invested in 52-week

MK bills. The interest rate for these MK bills

changes on October 1 of each year. To obtain the

current rate, contact Vince Velez, Office of

Administration and Resource Management,

Financial Management Division, Superfund

Accounting Branch, at (202) 260–6465.

and 9607, for injunctive relief with

regard to the Site and for response costs

incurred and to be incurred at or in

connection with the Site, thereby

reducing litigation relating to the Site;

b. to simplify any remaining

administrative and judicial enforcement

activities concerning the Site by

eliminating a [substantial] number of

potentially responsible parties from

further involvement at the Site; and

c. to obtain settlement with Settling

Defendants for their fair share of

response costs incurred and to be

incurred at or in connection with the

Site by the EPA Hazardous Substance

Superfund, and by private parties, to

provide for full and complete

contribution protection for Settling

Defendants with regard to the Site

pursuant to Sections 113(f)(2) and

122(g)(5) of CERCLA, 42 U.S.C.

9613(f)(2) and 9622(g)(5).

V. Definitions

4. Unless otherwise expressly

provided herein, terms used in this

Consent Decree that are defined in

CERCLA or in regulations promulgated

under CERCLA shall have the meaning

assigned to them in the statute or

regulations. Whenever the terms listed

below are used in this Consent Decree,

the following definitions shall apply:

a. ‘‘CERCLA’’ shall mean the

Comprehensive Environmental

Response, Compensation, and Liability

Act of 1980, as amended, 42 U.S.C.

9601, et seq.

b. ‘‘Consent Decree’’ or ‘‘Decree’’ shall

mean this Consent Decree and all

appendices attached hereto. In the event

of conflict between this Consent Decree

and any appendix, the Consent Decree

shall control.

c. ‘‘Day’’ shall mean a calendar day.

In computing any period of time under

this Consent Decree, where the last day

would fall on a Saturday, Sunday, or

federal holiday, the period shall run

until the close of business of the next

working day.

d. ‘‘EPA’’ shall mean the United

States Environmental Protection Agency

and any successor departments,

agencies or instrumentalities.

e. ‘‘EPA Hazardous Substance

Superfund’’ shall mean the Hazardous

Substance Superfund established by the

Internal Revenue Code, 26 U.S.C. 9507.

f. ‘‘Interest’’ shall mean interest at the

current rate specified for interest on

investments of the EPA Hazardous

Substance Superfund established by 26

U.S.C. 9507, compounded annually on

October 1 of each year, in accordance

with 42 U.S.C. 9607(a).2

g. ‘‘Paragraph’’ shall mean a portion of

this Consent Decree identified by an

arabic numeral or an upper or lower

case letter.

h. ‘‘Parties’’ shall mean the United

States and the Settling Defendants.

i. ‘‘Response costs’’ shall mean all

costs of ‘‘response’’ as that term is

defined by Section 101(25) of CERCLA,

42 U.S.C. 9601(25).

j. ‘‘Section’’ shall mean a portion of

this Consent Decree identified by a

roman numeral.

k. ‘‘Settling Defendants’’ shall mean

those persons, corporations or other

entities listed in Appendix A.

l. ‘‘Site’’ shall mean the llll

Superfund Site, encompassing

approximately llll acres, located at

[insert address or description of

location] in [insert City, County, State]

and [insert either ‘‘depicted more

clearly on the map attached as

Appendix B’’ or ‘‘designated by the

following property description:

llll.’’]

m. ‘‘United States’’ shall mean the

United States of America, including its

departments, agencies and

instrumentalities.

VI. Payment

5. Within 30 days of entry of this

Consent Decree, each Settling Defendant

shall pay to the EPA Hazardous

Substance Superfund [insert either ‘‘the

amount set forth below’’ or ‘‘the amount

set forth in Appendix C to this Consent

Decree’’].

6. Each Settling Defendant’s payment

includes an amount for: (a) Past

response costs incurred at or in

connection with the Site; (b) projected

future response costs to be incurred at

or in connection with the Site; and

[insert, if a premium is included in the

settlement, ‘‘(c) a premium to cover the

risks and uncertainties associated with

this settlement, including but not

limited to, the risk that total response

costs incurred or to be incurred at or in

connection with the Site by the EPA

Hazardous Substance Superfund, or by

any private party, will exceed the

estimated total response costs upon

which Settling Defendants’ payments

are based.’’]

[Note: If some settling defendants are paying

a premium and some are not, Paragraph 6

will need to be redrafted to indicate that

there are both premium and non-premium

settling defendants.]

7. Each payment shall be made by

certified or cashier’s check made

payable to ‘‘EPA Hazardous Substance

Superfund.’’ Each check shall reference

the name and address of the party

making payment, the Site name, the

EPA Region and Site Spill ID Number

llll [insert 4-digit number, first 2

numbers represent the Region (01–10),

second 2 numbers represent the

Region’s Site/Spill Identification

number], and DOJ Case Number

llll and shall be sent to: EPA

Superfund.

[Insert Regional Superfund lockbox

number and address]

8. At the time of payment, each

Settling Defendant shall send notice that

such payment has been made to: Chief,

Environmental Enforcement Section,

United States Department of Justice, DJ

No. llll, P.O. Box 7611,

Washington, D.C. 20044–7611.

[Insert name and address of Regional

Financial Management Officer and any

other receiving officials at EPA or DOJ]

[Note on Requiring one Collective Payment:

If the settlement involves a large number of

settling defendants, it may be appropriate to

include alternative instructions under which

the settling defendants are to establish a

short-term trust or escrow account to receive

their individual payments and to make one

collective payment to the Superfund at the

address noted in Paragraph 7. In such event,

the cost of the trust or escrow account may

be funded from interest earned by the

account or through other appropriate means.]

[Note on use of Special Account payments:

Payments made under Paragraph 7 may be

placed in the Hazardous Substance

Superfund to offset the United States’ past

response costs at the site, or may be placed

in a site-specific special account within the

Hazardous Substance Superfund (more

accurately referred to as a ‘‘reimbursable

account’’) to be retained and used for future

response action at the site. If the negotiating

team believes that a site-specific special

account is appropriate, the consent decree

should include clear instructions indicating

which portion of the payment is to be placed

in the Hazardous Substance Superfund to

defray the United States’ past costs and

which portion of the payment is to be

retained in a special account for future

response action at the site. The instructions

must include that any funds remaining in the

special account after completion of the

response action will be transferred to the

Hazardous Substance Superfund. Sample

instructions to be included at the end of

Paragraph 7 are as follows (the address for

payment stated in Paragraph 7 is correct for

both Trust Fund and special account

payments and should not be amended):

‘‘Of the total amount to be paid pursuant

to this Consent Decree, [‘$llll’ or

‘llll%’] shall be deposited in the EPA

Hazardous Substance Superfund as
62852 Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Notices

3 If any agency other than EPA or DOJ, such as

Coast Guard or Federal Emergency Management

Agency, has or may incur response costs at the site,

such costs must either be addressed in the

settlement or must be excluded from the scope of

the covenant not to sue.

4Note that when a RCRA Section 7003 covenant

is included, Section 7003(d) of RCRA requires EPA

to provide an opportunity for a public meeting in

the affected area.

5 The natural resource damages reservation in

Paragraph 12(c) must be included unless the

Federal Natural Resource Trustee[s] has/have

agreed to a covenant not to sue pursuant to Section

122(j)(2) of CERCLA. In accordance with Section

122(j)(1) of CERCLA, where the release or

threatened release of any hazardous substance at

the site may have resulted in damages to natural

resources under the trusteeship of the United

States, the Region should notify the Federal Natural

Resource Trustee[s] of the negotiations and

encourage the Trustee[s] to participate in the

negotiations.

reimbursement for response costs incurred at

or in connection with the Site as of [insert

date] by the EPA Hazardous Substance

Superfund, and [‘$llll’ or ‘llll%’

or ‘the remainder’] shall be deposited in the

[Insert Site Name] Special Account within

the EPA Hazardous Substance Superfund to

be retained and used to conduct or finance

the response action at or in connection with

the Site. Any balance remaining in the [Insert

Site Name] Special Account shall be

transferred by EPA to the EPA Hazardous

Substance Superfund.’’]]

VII. Failure To Make Payment

9. If any Settling Defendant fails to

make full payment within the time

required by Paragraph 5, that Settling

Defendant shall pay Interest on the

unpaid balance. In addition, if any

Settling Defendant fails to make full

payment as required by Paragraph 5, the

United States may, in addition to any

other available remedies or sanctions,

bring an action against that Settling

Defendant seeking injunctive relief to

compel payment and/or seeking civil

penalties under Section 122(l) of

CERCLA, 42 U.S.C. 9622(l), for failure to

make timely payment.

VIII. Certification of Settling Defendant

10. By signing this Consent Decree,

each Settling Defendant certifies,

individually, that, to the best of its

knowledge and belief, it has:

a. conducted a thorough,

comprehensive, good faith search for

documents, and has fully and accurately

disclosed to EPA, all information

currently in its possession, or in the

possession of its officers, directors,

employees, contractors or agents, which

relates in any way to the ownership,

operation, or control of the Site, or to

the ownership, possession, generation,

treatment, transportation, storage or

disposal of a hazardous substance,

pollutant, or contaminant at or in

connection with the Site;

b. not altered, mutilated, discarded,

destroyed or otherwise disposed of any

records, documents, or other

information relating to its potential

liability regarding the Site after

notification of potential liability or the

filing of a suit against it regarding the

Site; and

c. fully complied with any and all

EPA requests for information regarding

the Site pursuant to Sections 104(e) and

122(e) of CERCLA, 42 U.S.C. 9604(e)

and 9622(e) [insert, if applicable, ‘‘and

Section 3007 of the Resource

Conservation and Recovery Act, 42

U.S.C. 6927’’].

IX. Covenant Not To Sue by United

States

11. In consideration of the payments

that will be made by Settling Defendants

under the terms of this Consent Decree,

and except as specifically provided in

Section X (Reservations of Rights by

United States), the United States 3

covenants not to sue or take

administrative action against any of the

Settling Defendants pursuant to

Sections 106 or 107 of CERCLA, 42

U.S.C. 9606 or 9607, [and Section 7003

of the Resource Conservation and

Recovery Act, 42 U.S.C. 6973,] 4 relating

to the Site. With respect to present and

future liability, this covenant not to sue

shall take effect for each Settling

Defendant upon receipt of that Settling

Defendant’s payment as required by

Section VI of this Consent Decree. With

respect to each Settling Defendant,

individually, this covenant not to sue is

conditioned upon: (a) The satisfactory

performance by Settling Defendant of all

obligations under this Consent Decree;

and (b) the veracity of the information

provided to EPA by Settling Defendant

relating to Settling Defendant’s

involvement with the Site. This

covenant not to sue extends only to

Settling Defendants and does not extend

to any other person.

X. Reservations of Rights by United

States

12. The covenant not to sue by the

United States set forth in Paragraph 11

does not pertain to any matters other

than those expressly specified in

Paragraph 11. The United States

reserves, and this Consent Decree is

without prejudice to, all rights against

Settling Defendants with respect to all

other matters including, but not limited

to, the following:

a. Liability for failure to meet a

requirement of this Consent Decree;

b. Criminal liability;

c. Liability for damages for injury to,

destruction of, or loss of natural

resources, and for the costs of any

natural resource damage assessments; 5

or

d. liability arising from the future

arrangement for disposal or treatment of

a hazardous substance, pollutant or

contaminant at the Site after the date of

lodging of this Consent Decree.

13. Notwithstanding any other

provision in this Consent Decree, the

United States reserves, and this Consent

Decree is without prejudice to, the right

to institute proceedings against any

individual Settling Defendant in this

action or in a new action or to issue an

administrative order to any individual

Settling Defendant seeking to compel

that Settling Defendant to perform

response actions relating to the Site,

and/or to reimburse the United States

for additional costs of response, if:

a. information is discovered which

indicates that such Settling Defendant

contributed hazardous substances to the

Site in such greater amount or of such

greater toxic or other hazardous effects

that such Settling Defendant no longer

qualifies as a de minimis party at the

Site because [insert volume and toxicity

criteria from Section I, Paragraph C(3),

e.g., ‘‘Settling Defendant contributed

greater than llll% of the hazardous

substances at the Site, or contributed

hazardous substances which are

significantly more toxic or are of

significantly greater hazardous effect

than other hazardous substances at the

Site’’]; or

[Note: The cost overrun reopener in

Paragraph 13(b) below should only be

included with respect to any settling

defendant who is not paying a premium in

lieu of this reopener.]

[[b. total response costs at or in

connection with the Site exceed

$llll [insert dollar amount of cost

ceiling]].

[[Note: If some settling defendants are paying

a premium in lieu of the cost overrun

reopener and some are not, insert: ‘‘This

Paragraph 13(b) shall not apply to those

Settling Defendants identified [insert ‘‘in

Paragraph llll’’ or ‘‘in Appendix

llll’’] who have elected to pay a

premium amount pursuant to Paragraphs 5

and 6.]]

XI. Covenant not to Sue by Settling

Defendants

14. Settling Defendants covenant not

to sue and agree not to assert any claims

or causes of action against the United

States or its contractors or employees

with respect to the Site or this Consent

Decree including, but not limited to:

a. Any direct or indirect claim for

reimbursement from the EPA Hazardous

Substance Superfund based on Sections

106(b)(2), 107, 111, 112, or 113 of
Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Notices 62853

6 If the consent decree does not resolve settling

defendants’ liability for the site as a whole, the

scope of Paragraph 14(b) and (c) may be narrowed

to conform to the scope of the United States’

covenant not to sue. For example, if the consent

decree resolves settling defendants’ liability for

defined ‘‘Past Response Costs’’ and for a defined

‘‘Operable Unit I,’’ Paragraph 14(b) and (c) could be

limited to ‘‘any claim arising out of response

actions at the Site for which the Past Response

Costs were incurred and any claim arising out of

Operable Unit I.’’

7The settlement should, wherever possible,

release or resolve any claims by settling defendants

against the United States related to the site. Where

a claim is asserted by a potentially responsible

party, or the Region has any information suggesting

federal agency liability, all information relating to

potential federal liability should be provided to the

affected agency and DOJ as soon as possible in

order to resolve any such issues in the settlement.

Settlement of any federal liability will require

additional revisions to this document, and model

language will be provided separately. Only in

exceptional circumstances where federal liability

cannot be resolved in a timely manner in the

settlement should this provision be deleted and

private parties be allowed to reserve their rights.

8 If the consent decree does not resolve settling

defendants’ liability for the site as a whole, the

scope of settling defendants’ covenant not to sue

each other may be narrowed so as to conform to the

scope of the United States’ covenant.

9 This definition of ‘‘matters addressed’’ assumes

that this consent decree is designed to resolve fully

settling defendants’ liability at the site. If the

intended resolution of liability is narrower in scope,

then the definition of ‘‘matters addressed’’ will

need to be narrowed.

CERCLA, 42 U.S.C. 9606(b)(2), 9607,

9611, 9612, or 9613, or any other

provision of law;

b. Any claim arising out of response

activities at the Site; 6 and

c. Any claim against the United States

pursuant to Sections 107 and 113 of

CERCLA, 42 U.S.C. 9607 and 9613,

relating to the Site.7

15. Nothing in this Consent Decree

shall be deemed to constitute approval

or preauthorization of a claim within

the meaning of Section 111 of CERCLA,

42 U.S.C. 9611, or 40 CFR 300.700(d).

16. Settling Defendants covenant not

to sue and agree not to assert any claims

or causes of action against each other

with regard to the Site 8 pursuant to

Sections 107 or 113 of CERCLA, 42

U.S.C. 9607 and 9613.

XII. Effect of Settlement/Contribution

Protection

17. Nothing in this Consent Decree

shall be construed to create any rights

in, or grant any cause of action to, any

person not a Party to this Consent

Decree. The United States and Settling

Defendants each reserve any and all

rights (including, but not limited to, any

right to contribution), defenses, claims,

demands, and causes of action which

each Party may have with respect to any

matter, transaction, or occurrence

relating in any way to the Site against

any person not a Party hereto.

18. In any subsequent administrative

or judicial proceeding initiated by the

United States for injunctive relief,

recovery of response costs, or other

relief relating to the Site, Settling

Defendants shall not assert, and may not

maintain, any defense or claim based

upon the principles of waiver, res

judicata, collateral estoppel, issue

preclusion, claim-splitting, or other

defenses based upon any contention

that the claims raised in the subsequent

proceeding were or should have been

brought in the instant action; provided,

however, that nothing in this Paragraph

affects the enforceability of the covenant

not to sue included in Paragraph 11.

19. The Parties agree, and by entering

this Consent Decree this Court finds,

that each Settling Defendant is entitled,

as of the date of entry of this Consent

Decree, to protection from contribution

actions or claims as provided by

Sections 113(f)(2) and 122(g)(5) of

CERCLA, 42 U.S.C. 9613(f)(2) and

9622(g)(5), for ‘‘matters addressed’’ in

this Consent Decree. The ‘‘matters

addressed’’ in this Consent Decree are

[all response actions taken and to be

taken by the United States and by

private parties, and all response costs

incurred and to be incurred by the

United States and by private parties, at

or in connection with the Site.] 9

XIII. Retention of Jurisdiction

20. This Court shall retain jurisdiction

over this matter for the purpose of

interpreting and enforcing the terms of

this Consent Decree.

XIV. Integration/Appendices

21. This Consent Decree and its

appendices constitute the final,

complete and exclusive agreement and

understanding among the Parties with

respect to the settlement embodied in

this Consent Decree. The Parties

acknowledge that there are no

representations, agreements or

understandings relating to the

settlement other than those expressly

contained in this Consent Decree. The

following appendices are attached and

incorporated into this Consent Decree:

‘‘Appendix A’’ is [the list of Settling

Defendants].

‘‘Appendix B’’ is [the map of the Site].

‘‘Appendix C’’ is [the payment

schedule].

[Note: List any additional appendices.]

XV. Public Comment

22. This Consent Decree shall be

lodged with the Court for a period of not

less than 30 days for public notice and

comment. The United States shall file

with the Court any written comments

received and the United States’ response

thereto. The United States reserves the

right to withdraw or withhold its

consent if comments regarding the

Consent Decree disclose facts or

considerations which indicate that this

Consent Decree is inappropriate,

improper or inadequate. Settling

Defendants consent to entry of this

Consent Decree without further notice,

and the United States reserves the right

to oppose an attempt by any person to

intervene in this civil action.

XVI. Effective Date

23. The effective date of this Consent

Decree shall be the date of entry by this

Court, following public comment

pursuant to Paragraph 22.

XVII. Signatories/Service

24. Each undersigned representative

of a Settling Defendant to this Consent

Decree and the Assistant Attorney

General for the Environment and

Natural Resources Division of the

United States Department of Justice, or

[his/her] delegatee, certifies that he or

she is fully authorized to enter into the

terms and conditions of this Consent

Decree and to execute and bind legally

such party to this document.

25. Each Settling Defendant hereby

agrees not to oppose entry of this

Consent Decree by this Court or to

challenge any provision of this Consent

Decree, unless the United States has

notified Settling Defendants in writing

that it no longer supports entry of the

Consent Decree.

26. Each Settling Defendant shall

identify, on the attached signature page,

the name and address of an agent who

is authorized to accept service of

process by mail on behalf of that Party

with respect to all matters arising under

or relating to this Consent Decree.

Settling Defendants hereby agree to

accept service including, but not limited

to, service of a summons, in that manner

and to waive the formal service

requirements set forth in Rule 4 of the

Federal Rules of Civil Procedure and

any applicable local rules of this Court.

27. Contemporaneous with the filing

of the complaint in this action, the

United States shall file a stipulation or

motion for an extension of time to

answer the complaint in favor of each

Settling Defendant, which extension

shall run until 30 days after the United

States withdraws or withholds its

consent pursuant to Section XV (Public

Comment) or the Court declines to enter

this Consent Decree.

So order this llll day of llll,

19llll.

lllllllllllllllllllll

United States District Judge
62854 Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Notices

The Undersigned Parties enter into

this Consent Decree in the matter of

[insert case name and civil action

number], relating to the [insert site

name and location]:

For the United States of America

Date: llllllllllllllllll

lllllllllllllllllllll

[Name]

Assistant Attorney General, Environment and

Natural Resources Division, U.S. Department

of Justice, Washington, D.C. 20530

lllllllllllllllllllll

[Name]

United States Attorney, [Address]

lllllllllllllllllllll

[Name]

Attorney, Environmental Enforcement

Section, Environment and Natural Resources

Division, U.S. Department of Justice, P.O. Box

7611, Washington, DC 20044–7611

lllllllllllllllllllll

[Name]

Regional Administrator, Region [ ], U.S.

Environmental Protection Agency.

[Address]

lllllllllllllllllllll

[Name]

Assistant Regional Counsel, U.S.

Environmental Protection Agency.

[Address]

The Undersigned Party enters into

this Consent Decree in the matter of

[insert case name and civil action

number], relating to the llll

Superfund Site.

FOR DEFENDANT [ ]

Date: llllllllllllllllll

lllllllllllllllllllll

[Names and address of Defendant’s

signatories]

Agent Authorized to Accept Service

on Behalf of Above-signed Party:

Name: lllllllllllllllll

Title: llllllllllllllllll

Address: llllllllllllllll

Model CERCLA Section 122(g)(4) De

Minimis Contributor, Administrative

Order on Consent

Table of Contents

I. Jurisdiction

II. Statement of Purpose

III. Definitions

IV. Statement of Facts

V. Determinations

VI. Order

VII. Payment

VIII. Failure To Make Payment

IX. Certification of Respondent

X. Covenant Not to Sue by United States

XI. Reservations of Rights by United States

XII. Convenant Not to Sue by Respondents

XIII. Effect of Settlement/Contribution

Protection

XIV. Parties Bound

XV. Integration/Appendices

XVI. Public Comment

XVII. Attorney General Approval

XVIII. Effective Date

Model CERCLA Section 122(g)(4) De

Minimis Contributor, Administrative

Order on Consent

[U.S. EPA Docket No. llll]

In the Matter of: [Insert Site Name and

Location], Proceeding under Section

122(g)(4) of the Comprehensive

Environmental Response, Compensation, and

Liability Act of 1980, as amended, 42 U.S.C.

9622(g)(4).

I. Jurisdiction

1. This Administrative Order on

Consent (‘‘Consent Order’’ or ‘‘Order’’)

is issued pursuant to the authority

vested in the President of the United

States by Section 122(g)(4) of the

Comprehensive Environmental

Response, Compensation, and Liability

Act of 1980, as amended (‘‘CERCLA’’),

42 U.S.C. 9622(g)(4), to reach

settlements in actions under Section 106

or 107 of CERCLA, 42 U.S.C. 9606 or

9607. The authority vested in the

President has been delegated to the

Administrator of the United States

Environmental Protection Agency

(‘‘EPA’’) by Executive Order 12580, 52

FR 2923 (Jan. 29, 1987), and further

delegated to the Regional

Administrators of the EPA by EPA

Delegation No. 14–14–E [insert

reference to Regional redelegation, if

any].

2. This Administrative Order on

Consent is issued to the persons,

corporations, or other entities identified

in Appendix A (‘‘Respondents’’). Each

Respondent agrees to undertake all

actions required by this Consent Order.

Each Respondent further consents to

and will not contest EPA’s jurisdiction

to issue this Consent Order or to

implement or enforce its terms.

3. EPA and Respondents agree that

the actions undertaken by Respondents

in accordance with this Consent Order

do not constitute an admission of any

liability by any Respondent.

Respondents do not admit, and retain

the right to controvert in any subsequent

proceedings other than proceedings to

implement or enforce this Consent

Order, the validity of the Statement of

Facts or Determinations contained in

Sections IV and V, respectively, of this

Consent Order.

II. Statement of Purpose

[Note: As drafted, this Statement of Purpose

assumes that all respondents are making a

cash payment, which includes a premium

amount, in exchange for a full and final

settlement with EPA for all civil liability

under CERCLA Sections 106 and 107 with

respect to the site as a whole. This Statement

of Purpose will need to be amended if the

settlement is of narrower scope with respect

to some or all respondents because, e.g., it

relates to only one operable unit, or it

includes a reservation of rights for cost

overruns. When using this or any other

Statement of Purpose, be sure that the

provision is consistent with the Covenant

Not to Sue, the Reservations of Rights, and

the definition of ‘‘matters addressed’’ in the

Contribution Protection provision.]

4. By entering into this Consent

Order, the mutual objectives of the

Parties are:

a. to reach a final settlement among

the Parties with respect to the Site

pursuant to Section 122(g) of CERCLA,

42 U.S.C. 6922(g), that allows

Respondents to make a cash payment,

including a premium, to resolve their

alleged civil liability under Sections 106

and 107 of CERCLA, 42 U.S.C. 9606 and

9607, for injunctive relief with regard to

the Site and for response costs incurred

and to be incurred at or in connection

with the Site, thereby reducing litigation

relating to the Site;

b. to simplify any remaining

administrative and judicial enforcement

activities concerning the Site by

eliminating a [substantial] number of

potentially responsible parties from

further involvement at the Site; and

c. to obtain settlement with

Respondents for their fair share of

response costs incurred and to be

incurred at or in connection with the

Site by the EPA Hazardous Substance

Superfund, and by private parties, to

provide for full and complete

contribution protection for Respondents

with regard to the Site pursuant to

Sections 113(f)(2) and 122(g)(5) of

CERCLA, 42 U.S.C. 9613(f)(2) and

9622(g)(5).

III. Definitions

5. Unless otherwise expressly

provided herein, terms used in this

Consent Order that are defined in

CERCLA or in regulations promulgated

under CERCLA shall have the meaning

assigned to them in the statute or

regulations. Whenever the terms listed

below are used in this Consent Order,

the following definitions shall apply:

a. ‘‘CERCLA’’ shall mean the

Comprehensive Environmental

Response, Compensation, and Liability

Act of 1980, as amended, 42 U.S.C.

9601, et seq.

b. ‘‘Consent Order’’ or ‘‘Order’’ shall

mean this Administrative Order on

Consent and all appendices attached

hereto. In the event of conflict between

this Order and any appendix, the Order

shall control.

c. ‘‘Day’’ shall mean a calendar day.

In computing any period of time under

this Consent Decree, where the last day
Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Notices 62855

1The Superfund currently is invested in 52-week

MK bills. The interest rate for these MK bills

changes on October 1 of each year. To obtain the

current rate, contact Vince Velez, Office of

Administration and Resource Management,

Financial Management Division, Superfund

Accounting Branch, at (202) 260–6465.

would fall on a Saturday, Sunday, or

federal holiday, the period shall run

until the close of business of the next

working day.

d. ‘‘EPA’’ shall mean the United

States Environmental Protection Agency

and any successor departments,

agencies or instrumentalities.

e. ‘‘EPA Hazardous Substance

Superfund’’ shall mean the Hazardous

Substance Superfund established by the

Internal Revenue Code, 26 U.S.C. 9507.

f. ‘‘Interest’’ shall mean interest at the

current rate specified for interest on

investments of the EPA Hazardous

Substance Superfund established by 26

U.S.C. 9507, compounded annually on

October 1 of each year, in accordance

with 42 U.S.C. § 9607(a).1

g. ‘‘Paragraph’’ shall mean a portion of

this Consent Order identified by an

arabic numeral.

h. ‘‘Parties’’ shall mean EPA and the

Respondents.

i. ‘‘Respondents’’ shall mean those

persons, corporations, or other entities

listed in Appendix A.

j. ‘‘Response costs’’ shall mean all

costs of ‘‘response’’ as that term is

defined by Section 101(25) of CERCLA,

42 U.S.C. 9601(25).

k. ‘‘Section’’ shall mean a portion of

this Consent Order identified by a

roman numeral.

l. ‘‘Site’’ shall mean the llll

Superfund Site, encompassing

approximately llll acres, located

[insert address or description of

location] in [insert City, County, State]

and [insert either ‘‘depicted more

clearly on the map attached as

Appendix B’’ or ‘‘designated by the

following property description:

llll.’’]

m. ‘‘United States’’ shall mean the

United States of America, including its

departments, agencies and

instrumentalities.

IV. Statement of Facts

6. [In one or more paragraphs, insert

site name, location, description, NPL

status and brief statement of historical

hazardous substance activity at the site.]

7. Hazardous substances have been or

are threatened to be released at or from

the Site.

[Note: Additional information about specific

hazardous substances present on- or off-site

may be included.]

8. As a result of the release or

threatened release of hazardous

substances, EPA has undertaken

response actions at or in connection

with the Site under Section 104 of

CERCLA, 42 U.S.C. 9604, and will

undertake response actions in the

future.

[Note: Insert brief description of response

actions undertaken at the site to date by EPA

or private parties, noting whether a removal,

RI/FS or ROD(s) have been completed.

Describe briefly any prior settlements for

performance of work at the site. Note

whether further response action is planned.]

9. In performing these response

actions, EPA has incurred and will

continue to incur response costs at or in

connection with the Site.

[Note: The dollar amount of costs incurred as

of a specific date should be included.

Describe briefly any previous cost recovery

settlements under which any of these costs

have been reimbursed to EPA by site PRPs.]

10. [Identify each respondent and its

relationship to the site. If respondents

are numerous, state generally that ‘‘Each

Respondent listed on Appendix A

arranged for disposal or treatment, or

arranged with a transporter for transport

for disposal or treatment, of a hazardous

substance owned or possessed by such

Respondent, by any other person or

entity, at the Site, or accepted a

hazardous substance for transport to the

Site which was selected by such

Respondent.’’]

11. [[In one or more paragraphs,

present in summary fashion the factual

basis for EPA’s determination in Section

V below that the amount of hazardous

substances contributed to the site by

each respondent and the toxic or other

hazardous effects of the substances

contributed to the site by each

respondent are minimal in comparison

to other hazardous substances at the

site. The language will vary depending

upon the criteria established for the

particular settlement. An example

follows:

‘‘The amount of hazardous substances

contributed to the Site by each

Respondent does not exceed [insert

either ‘‘llll% of the hazardous

substances at the Site,’’ or ‘‘llll

pounds/gallons of materials containing

hazardous substances,’’] and the

hazardous substances contributed by

each Respondent to the Site are not

significantly more toxic or of

significantly greater hazardous effect

than other hazardous substances at the

Site.’’]]

[Note: Where practicable, an attachment

listing the volume and general nature of the

hazardous substances contributed to the site

by each respondent, to the extent available,

may be included as an appendix. The total

estimated volume of hazardous substances at

the site should be noted on the attachment,

if one is used.]

12. EPA estimates that the total

response costs incurred and to be

incurred at or in connection with the

Site by the EPA Hazardous Substance

Superfund and by private parties is

[insert either ‘‘$llll’’ or ‘‘between

$llll and $llll’’]. The

payment required to be made by each

Respondent pursuant to this Consent

Order is a minor portion of this total

amount.

[Note: The dollar figure inserted should

include the total response costs incurred to

date as well as the Agency’s projection of the

total response costs to be incurred during

completion of the remedial action at the site.

The response cost estimate should include

United States and private party costs.]

V. Determinations

13. Based upon the Statement of Facts

set forth above and on the

administrative record for this Site, EPA

has determined that:

a. The [insert site name] site is a

‘‘facility’’ as that term is defined in

Section 101(9) of CERCLA, 42 U.S.C.

9601(9).

b. Each Respondent is a ‘‘person’’ as

that term is defined in Section 101(21)

of CERCLA, 42 U.S.C. 9601(21).

c. Each Respondent is a ‘‘potentially

responsible party’’ within the meaning

of Section 122(g)(1) of CERCLA, 42

U.S.C. 9622(g)(1).

d. There has been an actual or

threatened ‘‘release’’ of a ‘‘hazardous

substance’’ from the Site as those terms

are defined in Section 101(22) and (14)

of CERCLA, 42 U.S.C. 9601(22) and (14).

e. The actual or threatened ‘‘release’’

caused the incurrence of response costs.

f. Prompt settlement with each

Respondent is practicable and in the

public interest within the meaning of

Section 122(g)(1) of CERCLA, 42 U.S.C.

9622(g)(1).

g. As to each Respondent, this

Consent Order involves only a minor

portion of the response costs at the Site

within the meaning of Section 122(g)(1)

of CERCLA, 42 U.S.C. 9622(g)(1).

h. The amount of hazardous

substances contributed to the Site by

each Respondent and the toxic or other

hazardous effects of the hazardous

substances contributed to the Site by

each Respondent are minimal in

comparison to other hazardous

substances at the Site within the

meaning of Section 122(g)(1)(A) of

CERCLA, 42 U.S.C. 9622(g)(1)(A).

[Note: If Attorney General approval is not

required for this settlement because total past

and projected response costs of the United

States at the site are not expected to exceed

$500,000, insert the following Paragraph

13(i).]
62856 Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Notices

2 If any agency other than EPA or DOJ, such as

Coast Guard or Federal Emergency Management

Agency, has or may incur response costs at the site,

such costs must either be addressed in the

settlement or must be excluded from the scope of

the covenant not to sue.

3Note that when a RCRA Section 7003 covenant

is included, Section 7003(d) of RCRA requires EPA

to provide an opportunity for a public meeting in

the affected area.

[i. The total past and projected

response costs of the United States at or

in connection with the Site will not

exceed $500,000, excluding interest.]

VI. Order

14. Based upon the administrative

record for the Site and the Statement of

Facts and Determinations set forth

above, and in consideration of the

promises and covenants set forth herein,

the following is hereby agreed to and

ordered:

VII. Payment

15. Within 30 days of the effective

date of this Consent Order, each

Respondent shall pay to the EPA

Hazardous Substance Superfund [insert

either: ‘‘the amount set forth below’’ or

‘‘the amount set forth in Appendix C to

this Consent Order’’].

16. Each Respondent’s payment

includes an amount for: (a) past

response costs incurred at or in

connection with the Site; (b) projected

future response costs to be incurred at

or in connection with the Site; and

[insert, if a premium is included in the

settlement, ‘‘(c) a premium to cover the

risks and uncertainties associated with

this settlement, including but not

limited to, the risk that total response

costs incurred or to be incurred at or in

connection with the Site by the EPA

Hazardous Substance Superfund, or by

any private party, will exceed the

estimated total response costs upon

which Respondents’ payments are

based.’’]

[Note: If some respondents are paying a

premium and some are not, Paragraph 16 will

need to be redrafted to indicate that there are

both premium and non-premium settling

respondents.]

17. Each payment shall be made by

certified or cashier’s check made

payable to ‘‘EPA Hazardous Substance

Superfund.’’ Each check shall reference

the name and address of the party

making payment, the Site name, the

EPA Region and Site Spill ID Number

llll [insert 4-digit number, first 2

numbers represent the Region (01–10),

second 2 numbers represent the

Region’s Site/Spill Identification

number], and the EPA docket number

for this action, and shall be sent to:

EPA Superfund

[Insert Regional Superfund lockbox

number and address]

18. At the time of payment, each

Respondent shall send notice that such

payment has been made to:

[Insert name and address of Regional

Attorney and/or Remedial Project

Manager]

[Note on Requiring One Collective Payment:

If the settlement involves a large number of

respondents, it may be appropriate to include

alternative instructions under which the

respondents are to establish a short-term trust

or escrow account to receive their individual

payments and to make one collective

payment to the Superfund at the address

noted in Paragraph 17. In such event, the cost

or the trust or escrow account may be funded

from interest earned by the account or

through other appropriate means.]

[Note on Use of Special Account Payments:

Payments made under Paragraph 17 may be

placed in the Hazardous Substance

Superfund to offset the United States’ past

response costs at the site, or may be placed

in a site-specific special account within the

Hazardous Substance Superfund (more

accurately referred to as a ‘‘reimbursable

account’’) to be retained and used for future

response action at the site. If the negotiating

team believes that a site-specific special

account is appropriate, the consent order

should include clear instructions indicating

which portion of the payment is to be placed

in the Hazardous Substance Superfund to

defray the United States’ past costs and

which portion of the payment is to be

retained in a special account for future

response action at the site. The instructions

must include that any funds remaining in the

special account after completion of the

response action will be transferred to the

Hazardous Substance Superfund. Sample

instructions to be included at the end of

Paragraph 17 are as follows (the address for

payment stated in Paragraph 17 is correct for

both Hazardous Substance Superfund and

special account payments and should not be

amended):

‘‘Of the total amount to be paid pursuant

to this Consent Order, [‘$llll’ or

‘llll%’] shall be deposited in the EPA

Hazardous Substance Superfund as

reimbursement for response costs incurred at

or in connection with the Site as of [insert

date] by the EPA Hazardous Substance

Superfund, and [‘$llll’ or ‘llll%’

or ‘the remainder’] shall be deposited in the

[Insert Site Name] Special Account within

the EPA Hazardous Substance Superfund to

be retained and used to conduct or finance

the response action at or in connection with

the Site. Any balance remaining in the [Insert

Site Name] Special Account shall be

transferred by EPA to the EPA Hazardous

Substance Superfund.’’

VIII. Failure to Make Payment

19. If any Respondent fails to make

full payment within the time required

by Paragraph 15, that Respondent shall

pay Interest on the unpaid balance. In

addition, if any Respondent fails to

make full payment as required by

Paragraph 15, the United States may, in

addition to any other available remedies

or sanctions, bring an action against that

Respondent seeking injunctive relief to

compel payment and/or seeking civil

penalties under Section 122(l) of

CERCLA, 42 U.S.C. 9622(l), for failure to

make timely payment.

IX. Certification of Respondent

20. By signing this Consent Order,

each Respondent certifies, individually,

that, to the best of its knowledge and

belief, it has:

a. conducted a thorough,

comprehensive, good faith search for

documents, and has fully and accurately

disclosed to EPA all information

currently in its possession, or in the

possession of its officers, directors,

employees, contractors or agents, which

relates in any way to the ownership,

operation, or control of the Site, or to

the ownership, possession, generation,

treatment, transportation, storage or

disposal of a hazardous substance,

pollutant, or contaminant at or in

connection with the Site;

b. not altered, mutilated, discarded,

destroyed or otherwise disposed of any

records, documents, or other

information relating to its potential

liability regarding the Site after

notification of potential liability or the

filing of a suit against it regarding the

Site; and

c. fully complied with any and all

EPA requests for information regarding

the Site pursuant to Sections 104(e) and

122(e) of CERCLA, 42 U.S.C. 9604(e)

and 9622(e) [insert, if applicable ‘‘, and

Section 3007 of the Resource

Conservation and Recovery Act, 42

U.S.C. 6927’’].

X. Covenant Not to Sue by United States

21. In consideration of the payments

that will be made by Respondents under

the terms of this Consent Order, and

except as specifically provided in

Section XI (Reservations of Rights by

United States), the United States 2

covenants not to sue or take

administrative action against any of the

Respondents pursuant to Sections 106

or 107 of CERCLA, 42 U.S.C. 9606 or

9607, [and Section 7003 of the Resource

Conservation and Recovery Act, 42

U.S.C. 6973,] 3 relating to the Site. With

respect to present and future liability,

this covenant not to sue shall take effect

for each Respondent upon receipt of

that Respondent’s payment as required

by Section VII. With respect to each

Respondent, individually, this covenant

not to sue is conditioned upon: (a) the

satisfactory performance by Respondent

of all obligations under this Consent
Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Notices 62857

4This natural resource damage reservation must

be included unless the Federal Natural Resource

Trustee[s] has/have agreed to a covenant not to sue

pursuant to Section 122(j)(2) of CERCLA. In

accordance with Section 122(j)(1) of CERCLA,

where the release or threatened release of any

hazardous substances at the site may have resulted

in damages to natural resources under the

trusteeship of the United States, the Region should

notify the Federal Natural Resource Trustee[s] of

the negotiations and encourage the Trustee[s] to

participate in the negotiations.

5 If the consent order does not resolve

respondents’ liability for the site as a whole, the

scope of Paragraph 24 (b) and (c) may be narrowed

to conform to the scope of EPA’s covenant not to

sue. For example, if the consent order resolves

respondents’ liability for defined ‘‘Past Response

Costs’’ and for a defined ‘‘Operable Unit I,’’

Paragraph 24 (b) and (c) could be limited to ‘‘any

claim arising out of response actions at the Site for

which the Past Response Costs were incurred and

any claim arising out of Operable Unit I.’’

6The settlement should, wherever possible,

release or resolve any claims by respondents against

the United States related to the site. Where a claim

is asserted by a potentially responsible party, or the

Region has any information suggesting federal

agency liability, all information relating to potential

federal liability should be provided to the affected

agency and DOJ as soon as possible in order to

resolve any such issues in the settlement.

Settlement of any federal liability will require

additional revisions to this document, and model

language will be provided separately. Only in

exceptional circumstances where federal liability

cannot be resolved in a timely manner in the

settlement should this provision be deleted and

private parties be allowed to reserve their rights.

7 If the consent order does not resolve

respondents’ liability for the site as a whole, the

scope of respondents’ covenant not to sue each

other may be narrowed so as to conform to the

scope of the United States’ covenant.

8This definition of ‘‘matters addressed’’ assumes

that this consent order is designed to resolve fully

respondents’ liability at the site. If the intended

resolution of liability is narrower in scope, then the

definition of ‘‘matters addressed’’ will need to be

narrowed.

Order; and (b) the veracity of the

information provided to EPA by

Respondent relating to Respondent’s

involvement with the Site. This

covenant not to sue extends only to

Respondents and does not extend to any

other person.

XI. Reservations of Rights by United

States

22. The covenant not to sue by the

United States set forth in Paragraph 21

does not pertain to any matters other

than those expressly specified in

Paragraph 21. The United States

reserves, and this Consent Order is

without prejudice to, all rights against

Respondents with respect to all other

matters including, but not limited to:

a. liability for failure to meet a

requirement of this Consent Order;

b. criminal liability;

c. liability for damages for injury to,

destruction of, or loss of natural

resources, and for the costs of any

natural resource damage assessments; 4

or

d. liability arising from any future

arrangement for disposal or treatment of

a hazardous substance, pollutant or

contaminant at the Site after the

effective date of this Consent Order.

23. Notwithstanding any other

provision in this Consent Order, the

United States reserves, and this Consent

Order is without prejudice to, the right

to institute judicial or administrative

proceedings against any individual

Respondent seeking to compel that

Respondent to perform response actions

relating to the Site, and/or to reimburse

the United States for additional costs of

response, if:

a. information is discovered which

indicates that such Respondent

contributed hazardous substances to the

Site in such greater amount or of such

greater toxic or other hazardous effects

that such Respondent no longer

qualifies as a de minimis party at the

Site because [insert volume and toxicity

criteria from Paragraph 11 of the

Statement of Facts, e.g., ‘‘such

Respondent contributed greater than

llll% of the hazardous substances

at the Site, or contributed hazardous

substances which are significantly more

toxic or are of significantly greater

hazardous effect than other hazardous

substances at the Site’’]; or

[Note: The cost overrun reopener in

Paragraph 23(b) below should only be

included with respect to any respondent who

is not paying a premium in lieu of this

reopener.]

[b. total response costs at or in connection

with the Site exceed $llll [insert dollar

amount of cost ceiling].

[Note: If some respondents are paying a

premium in lieu of the cost overrun reopener

and some are not, insert: ‘‘This Paragraph

23(b) shall not apply to those Respondents

identified [insert ‘‘in Paragraph llll’’ or

‘‘in Appendix llll’’] who have elected to

pay a premium pursuant to Paragraphs 15

and 16.’’]

XII. Covenant not to Sue by

Respondents

24. Respondents covenant not to sue

and agree not to assert any claims or

causes of action against the United

States or its contractors or employees

with respect to the Site or this Consent

Order including, but not limited to:

a. any direct or indirect claim for

reimbursement from the EPA Hazardous

Substance Superfund based on Sections

106(b)(2), 107, 111, 112, or 113 of

CERCLA, 42 U.S.C. 9606(b)(2), 9607,

9611, 9612, or 9613, or any other

provision of law;

b. any claims arising out of response

activities at the Site; 5 and

c. any claim against the United States

pursuant to Sections 107 and 113 of

CERCLA, 42 U.S.C. 9607 and 9613,

relating to the Site.6

25. Nothing in this Consent Order

shall be deemed to constitute

preauthorization or approval of a claim

within the meaning of Section 111 of

CERCLA, 42 U.S.C. 9611, or 40 CFR

300.700(d).

26. Respondents covenant not to sue

and agree not to assert any claims or

causes of action against each other with

regard to the Site 7 pursuant to Sections

107 and 113 of CERCLA, 42 U.S.C. 9607

and 9613.

XIII. Effect of Settlement/Contribution

Protection

27. Nothing in this Consent Order

shall be construed to create any rights

in, or grant any cause of action to, any

person not a Party to this Consent

Order. The United States and

Respondents each reserve any and all

rights (including, but not limited to, any

right to contribution), defenses, claims,

demands, and causes of action which

each Party may have with respect to any

matter, transaction, or occurrence

relating in any way to the Site against

any person not a Party hereto.

28. In any subsequent administrative

or judicial proceeding initiated by the

United States for injunctive relief,

recovery of response costs, or other

relief relating to the Site, Respondents

shall not assert, and may not maintain,

any defense or claim based upon the

principles of waiver, res judicata,

collateral estoppel, issue preclusion,

claim-splitting, or other defenses based

upon any contention that the claims

raised in the subsequent proceeding

were or should have been brought in the

instant action; provided, however, that

nothing in this Paragraph affects the

enforceability of the covenant not to sue

included in Paragraph 21.

29. The Parties agree that each

Respondent is entitled, as of the

effective date of this Consent Order, to

protection from contribution actions or

claims as provided by Sections 113(f)(2)

and 122(g)(5) of CERCLA, 42 U.S.C.

9613(f)(2) and 9622(g)(5), for ‘‘matters

addressed’’ in this Consent Order. The

‘‘matters addressed’’ in this Consent

Order are [all response actions taken by

the United States and by private parties,

and all response costs incurred and to

be incurred by the United States and by

private parties, at or in connection with

the Site.] 8

XIV. Parties Bound

30. This Consent Order shall apply to

and be binding upon EPA and upon

Respondents and their [heirs,]
62858 Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 / Notices

successors and assigns. Any change in

ownership or corporate or other legal

status of a Respondent, including but

not limited to, any transfer of assets or

real or personal property, shall in no

way alter such Respondent’s

responsibilities under this Consent

Order. Each signatory to this Consent

Order certifies that he or she is

authorized to enter into the terms and

conditions of this Consent Order and to

execute and bind legally the party

represented by him or her.

XV. Integration/Appendices

31. This Consent Order and its

appendices constitute the final,

complete and exclusive agreement and

understanding among the Parties with

respect to the settlement embodied in

this Consent Order. The Parties

acknowledge that there are no

representations, agreements or

understandings relating to the

settlement other than those expressly

contained in this Consent Order. The

following appendices are attached to

and incorporated into this Consent

Order:

‘‘Appendix A’’ is [the list of Respondents].

‘‘Appendix B’’ is [the map of the Site].

‘‘Appendix C’’ is [the payment schedule].

[Note: List any additional appendices.]

XVI. Public Comment

32. This Consent Order shall be

subject to a public comment period of

not less than 30 days pursuant to

Section 122(i) of CERCLA, 42 U.S.C.

9622(i). In accordance with Section

122(i)(3) of CERCLA, 42 U.S.C.

9622(i)(3), EPA may withdraw or

withhold its consent to this Consent

Order if comments received disclose

facts or considerations which indicate

that this Consent Order is inappropriate,

improper, or inadequate.

XVII. Attorney General Approval

[Note: This Section should be used if

Attorney General approval is required for this

settlement because total past and projected

response costs at the site will exceed

$500,000, excluding interest. The Region

should consult with DOJ during the

negotiations process and should obtain

written DOJ approval of the settlement before

publishing notice of the proposed consent

order in the Federal Register pursuant to

Section 122(i) of CERCLA. The Region

should discuss with DOJ any significant

comments received during the public

comment period. If the Region believes that

the consent order should be modified based

upon public comment, the Region should

discuss with the DOJ attorney assigned to the

case whether the proposed change will

require formal re-approval by DOJ.]

33. The Attorney General or [his/her]

designee has approved the settlement

embodied in this Consent Order in

accordance with Section 122(g)(4) of

CERCLA, 42 U.S.C. 9622(g)(4).

XVIII. Effective Date

34. The effective date of this Consent

Order shall be the date upon which EPA

issues written notice to Respondents

that the public comment period

pursuant to Paragraph 32 has closed and

that comments received, if any, do not

require modification of or EPA

withdrawal from this Consent Order.

It is so agreed and ordered:

U.S. Environmental Protection Agency

By: lllllllllllllllllll

[Name] lllllllllllllllll

[Date] llllllllllllllllll

Regional Administrator, Region llll l

[Note: If the Regional Administrator has

redelegated authority to enter into de

minimis settlements, insert name and title of

delegated official.]

THE UNDERSIGNED RESPONDENT enters

into this Consent Order in the matter of

[insert U.S. EPA docket number], relating to

the [insert site name and location]:

For Respondent:

[Name] lllllllllllllllll

[Address] llllllllllllllll

By: lllllllllllllllllll

[Name] lllllllllllllllll

[Date] llllllllllllllllll

[FR Doc. 95–29746 Filed 12–6–95; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL RESERVE SYSTEM

The Mitsubishi Bank, Limited;

Formation of, Acquisition by, or

Merger of Bank Holding Companies;

and Acquisition of Nonbanking

Company

The company listed in this notice has

applied under § 225.14 of the Board’s

Regulation Y (12 CFR 225.14) for the

Board’s approval under section 3 of the

Bank Holding Company Act (12 U.S.C.

1842) to become a bank holding

company or to acquire voting securities

of a bank or bank holding company. The

listed company also has given notice

under § 225.23(a)(2) of Regulation Y (12

CFR 225.23(a)(2)) for the under section

4(c)(8) of the Bank Holding Company

Act (12 U.S.C. 1843(c)(8)) and §

225.21(a) of Regulation Y (12 CFR

225.21(a)) to acquire or control voting

securities or assets of a company

engaged in a nonbanking activity that is

listed in § 225.25 of Regulation Y as

closely related to banking and

permissible for bank holding

companies, or to engage in such an

activity. Unless otherwise noted, these

activities will be conducted throughout

the United States.

The application is available for

immediate inspection at the Federal

Reserve Bank indicated. Once the

application has been accepted for

processing, it will also be available for

inspection at the offices of the Board of

Governors. Interested persons may

express their views in writing on the

question whether consummation of the

proposal to acquire the non-banking

subsidiaries can ‘‘reasonably be

expected to produce benefits to the

public, such as greater convenience,

increased competition, or gains in

efficiency, that outweigh possible

adverse effects, such as undue

concentration of resources, decreased or

unfair competition, conflicts of

interests, or unsound banking

practices.’’ Any request for a hearing on

this question must be accompanied by

a statement of the reasons a written

presentation would not suffice in lieu of

a hearing, identifying specifically any

questions of fact that are in dispute,

summarizing the evidence that would

be presented at a hearing, and indicating

how the party commenting would be

aggrieved by approval of the proposal.

Comments regarding the application

must be received at the Reserve Bank

indicated or the offices of the Board of

Governors not later than January 4,

1996.

A. Federal Reserve Bank of San

Francisco (Kenneth R. Binning,

Director, Bank Holding Company) 101

Market Street, San Francisco, California

94105:

1. The Mitsubishi Bank, Limited,

Tokyo, Japan; to merge with The Bank

of Tokyo, Ltd., Tokyo, Japan, and

thereby indirectly acquire The Bank of

Tokyo Trust Company, New York, New

York, The Chicago-Tokyo Bank,

Chicago, Illinois, and Union Bank, San

Francisco, California.

In connection with this application,

Applicant also has applied to acquire

BOT Securities, Inc., New York, New

York, and thereby engage in making,

acquiring or servicing loans, pursuant to

§ 225.25(b)(1), providing investment or

financial advice, pursuant to §

225.25(b)(4),providing brokerage

services separately and in combination

with investment advisory services,

pursuant to § 225.25(b)(15),

underwriting and dealing in bankeligible securities, pursuant to §

225.25(b)(16), providing general

information and statistical forecasting

with respect to foreign exchange

markets, pursuant to § 225.25(b)(17),

acting as a futures commission

merchant, pursuant to § 225.25(b)(18),

and trading for its own account in