[Federal Register Volume 60, Number 234 (Wednesday, December 6, 1995)]
[Notices]
[Pages 62446-62456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29745]



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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5340-5]


Superfund Program; Final Model CERCLA Past Costs Consent Decree 
and Administrative Agreement

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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SUMMARY: The Agency is publishing today the final ``Model CERCLA 
Section 107 Consent Decree for Recovery of Past Response Costs'' and 
the final ``Model CERCLA Section 122(h)(1) Agreement for Recovery of 
Past Response Costs.'' These models, developed by the Agency and the 
U.S. Department of Justice, provide guidance for Agency and Department 
staff when negotiating settlement of CERCLA Section 107 claims for 
recovery of purely past response costs. The model consent decree is 
designed for judicially-approved CERCLA Section 107 settlements, and 
the model agreement is designed for administrative CERCLA Section 
122(h)(1) 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 SW., 
Washington, D.C. 20460, (202) 260-7116.

    Dated: October 26, 1995.

Susan Brown,
Acting Director, Office of Site Remediation Enforcement.

Memorandum

Subject: Issuance of ``Model CERCLA Section 107 Consent Decree for 
Recovery of Past Response Costs'' and ``Model CERCLA Section 122(h)(1) 
Agreement for Recovery of Past Response Costs''
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

September 29, 1995.

    We are pleased to issue the final versions of two model CERCLA cost 
recovery settlement documents: 1) ``Model CERCLA Section 107 Consent 
Decree for Recovery of Past Response Costs'' (``Model CD''); and 2) 
``Model CERCLA Section 122(h)(1) Agreement for Recovery of Past 
Response Costs'' (``Model Agreement''). The Model CD is to be used as 
guidance for EPA and DOJ staff when negotiating CERCLA Section 107 
judicial consent decrees for recovery of past response costs. The Model 
Agreement is to be used as guidance for EPA and DOJ staff when 
negotiating CERCLA Section 122(h) administrative agreements for 
recovery of past response costs. Both models are designed for 
resolution of purely past cost claims and are not intended to be used 
to resolve claims for future work or payment of future response costs 
(``cashout'' settlements). Cashout settlement terms will be provided in 
subsequent models.
    We encourage our staffs to adhere as closely as possible to the 
terms of these models, subject to modifications needed to reflect site-
specific circumstances. We believe use of these models will reduce 
negotiation timeframes, achieve nationally consistent settlements, 
promote compliance with current settlement practices and procedures, 
and increase the speed of management review and approval. 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/PASTCOST.CD or PASTCOST.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 these 
models, please contact Janice Linett of the Regional Support Division 
at (703) 978-3057 or Tom Mariani of the Environmental Enforcement 
Section at (202) 514-4620.
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

Environmental Protection Agency and Department of Justice Model Cercla 
Section 107 Consent Decree for Recovery of Past Response Costs

    This model and any internal procedures adopted for its 
implementation and use are intended as guidance for employees of the 
U.S. Department of Justice and the U.S. 

[[Page 62447]]
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 Department or Agency may take action at 
variance with this model or its internal implementing procedures.

Model Cercla Section 107 Consent Decree for Recovery of Past Response 
Costs

Table of Contents

I. Background
II. Jurisdiction
III. Parties Bound
IV. Definitions
V. Reimbursement of Response Costs
VI. Failure To Comply with Requirements of Consent Decree
VII. Covenant Not To Sue by Plaintiff[S]
VIII. Covenant Not To Sue by Settling Defendants
IX. Effect of Settlement/Contribution Protection ____. [Site Access] 
____. [Access to Information]
X. Retention of Records
XI. Notices and Submissions
XII. Retention of Jurisdiction
XIII. Integration[/Appendices]
XIV. Lodging and Opportunity for Public Comment
XV. Effective Date
XVI. Signatories/Service

In the United States District Court for the District of [__________] 
[__________] Division<SUP>1

    \1\Follow local rules for caption format.
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Consent Decree

    United States of America, [and the State of __________ ] 
Plaintiff[s], v. [Defendants] Defendants.
Civil Action No.-------------------------------------------------------

Judge------------------------------------------------------------------
    [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 Section 107 of 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980, 42 U.S.C. Sec. 9607, as amended (``CERCLA''), seeking 
reimbursement of response costs incurred and to be incurred for 
response actions taken at or in connection with the release or 
threatened release of hazardous substances at the [insert Site Name] in 
[insert City, County, State] (``the Site'').
    [[.____ The State of __________ (the ``State'') also filed a 
complaint against the defendants in this Court alleging that the 
defendants are liable to the State under Section 107 of CERCLA, 42 
U.S.C. Sec. 9607, and [list State laws cited in the State's complaint]. 
The State in its complaint seeks [insert relief sought].]]
    B. The defendants that have entered into this Consent Decree 
(``Settling Defendants'') do not admit any liability to Plaintiff[s] 
arising out of the transactions or occurrences alleged in the 
complaint[s].<SUP>2

    \2\ In situations where the court has entered summary judgment 
as to liability, we normally should preserve that result in a 
subsequent settlement by deleting this Paragraph B and replacing it 
with one that describes the summary judgment decision.
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    C. The United States and Settling Defendants agree, and this Court 
by entering this Consent Decree finds, that this Consent Decree has 
been negotiated by the Parties in good faith, that settlement of this 
matter will avoid prolonged and complicated litigation between the 
Parties, and that this Consent Decree is fair, reasonable, and in the 
public interest.
    Therefore, with the consent of the Parties to this 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. Secs. 1331 and 1345 and 42 U.S.C. 
Secs. 9607 and 9613(b) and also has personal jurisdiction over Settling 
Defendants. Settling Defendants consent to and shall not challenge 
entry 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 the 
State], and upon Settling Defendants and their [heirs,] successors and 
assigns. Any change in ownership or corporate or other legal status, 
including but not limited to, any transfer of assets or real or 
personal property, shall in no way alter the status or responsibilities 
of Settling Defendants under this Consent Decree.

IV. Definitions

    3. Unless otherwise expressly provided herein, terms used in this 
Consent Decree which are defined in CERCLA or in regulations 
promulgated under CERCLA shall have the meaning assigned to them in 
CERCLA or in such regulations. Whenever terms listed below are used in 
this Consent Decree or in any appendix attached hereto, 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. 
Sec. 9601, et seq.
    b. ``Consent 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. ``DOJ'' shall mean the United States Department of Justice and 
any successor departments, agencies or instrumentalities of the United 
States.
    e. ``EPA'' shall mean the United States Environmental Protection 
Agency and any successor departments, agencies or instrumentalities of 
the United States.
    f. ``EPA Hazardous Substance Superfund'' shall mean the Hazardous 
Substance Superfund established by the Internal Revenue Code, 26 U.S.C. 
Sec. 9507.
    g. ``Interest'' shall mean interest at the current rate specified 
for interest on investments of the Hazardous Substance Superfund 
established by 26 U.S.C. Sec. 9507, compounded annually on October 1 of 
each year, in accordance with 42 U.S.C. Sec. 9607(a).<SUP>3

    \3\ The 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.
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    [[____. ``Owner Settling Defendants'' shall mean [insert 
names].]]<SUP>4

    \4\ This definition is needed if the optional paragraph on 
Notice of Obligations to Successors-in-Title is used. See infra p. 
14.
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    h. ``Paragraph'' shall mean a portion of this Consent Decree 
identified by an arabic numeral or an upper or lower case letter.
    i. ``Parties'' shall mean the United States[, the State of 
__________,] and the Settling Defendants.
    j. ``Past Response Costs'' shall mean all costs, including but not 
limited to direct and indirect costs, that EPA or DOJ on behalf of EPA 
has paid at or in connection with the Site through [insert date], plus 
accrued Interest on all such costs through such date.<SUP>5

    \5\ If the past costs settlement is partial, it may be necessary 
to continue the definition with a brief description of the past 
response action(s) which are being paid for or compromised, such as: 
``. . . for the response action described in the Record of Decision 
for the First Operable Unit at the Site dated __________'' or ``for 
the removal action described in the action memorandum for the Site 
dated __________.'' Exercise care in describing the activities 
covered, as this description may affect the scope of the covenant 
not to sue and contribution protection. For clarity, the description 
of the past response action may need to indicate which response 
actions are not included within the definition of Past Response 
Costs. Check to be sure that the date used in the definition of Past 
Response Costs does not inadvertently include costs that are outside 
the scope of the definition. In some cases, it may be useful to 
attach a standard, Regionally-prepared cost summary listing the 
costs that are within the scope of the definition. This may be done: 
1) to be sure that no confusion arises as to which costs are being 
compromised; or 2) to indicate which outstanding past cost claims 
are being resolved through the settlement, i.e., to indicate that 
the recovered costs are to be applied to particular portions of the 
debt.

[[Page 62448]]

    [[____. ``Record of Decision'' or ``ROD'' shall mean the EPA Record 
of Decision relating to the [Site or ____ operable Unit at the Site] 
signed on [insert date] by the Regional Administrator, EPA Region ____, 
or his/her delegatee, and all attachments thereto.]]
    k. ``Plaintiff[s]'' shall mean the United States [and the State].
    l. ``Section'' shall mean a portion of this Consent Decree 
identified by a roman numeral.
    m. ``Settling Defendants'' shall mean [insert names of settling 
parties, or only if very numerous, ``those parties identified in 
Appendix A.'']
    n. ``Site'' shall mean the __________ Superfund site, encompassing 
approximately ____ acres, located at [insert address or description of 
location] in [insert City, County, State], and [insert either 
``depicted more clearly on the map included in Appendix B'' or 
``designated by the following property description: __________.'']
    [____. ``State'' shall mean the State [or Commonwealth] of 
____________.]
    [[____. ``State Past Response Costs'' shall mean all costs, 
including but not limited to direct and indirect costs, together with 
accrued interest, that the State of __________ has paid through [insert 
date] in response to the release or threatened release of hazardous 
substances at or in connection with the Site, but not including amounts 
reimbursed to the State by EPA.]]
    o. ``United States'' shall mean the United States of America, 
including its departments, agencies and instrumentalities.

V. Reimbursement of Response Costs

    [Note: If the amount to be paid is $10,000 or greater, payment 
should be made by electronic funds transfer using the following 
Paragraph 4.]

    4. Payment of Past Response Costs to the EPA Hazardous Substance 
Superfund. Within 30 days of entry of this Consent Decree, Settling 
Defendants shall pay to the EPA Hazardous Substance Superfund $________ 
in reimbursement of Past Response Costs, plus an additional sum for 
Interest on that amount calculated from the date set forth in the 
definition of Past Response Costs through the date of payment.<SUP>6 
Payment shall be made by FedWire Electronic Funds Transfer (``EFT'') to 
the U.S. Department of Justice account in accordance with current EFT 
procedures, referencing USAO File Number ________, the EPA Region and 
Site Spill ID Number ________ [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 ________. 
Payment shall be made in accordance with instructions provided to 
Settling Defendants by the Financial Litigation Unit of the U.S. 
Attorney's Office in the District of ________ following lodging of the 
Consent Decree. Any payments received by the Department of Justice 
after 4:00 p.m. Eastern Time shall be credited on the next business 
day. Settling Defendants shall send notice to EPA and DOJ that payment 
has been made in accordance with Section XI (Notices and Submissions) 
and to [insert names and mailing addresses of the Regional Financial 
Management Officer and any other receiving officials at EPA].

    \6\As an alternative to calculation and payment of interest from 
the Past Response Costs date through the date of payment, settling 
defendants may agree to place the amount agreed upon into an 
interest-bearing escrow account to be disbursed to EPA upon entry of 
the consent decree. If this method is used, accrued interest from 
the Past Response Costs date through the date the escrow account is 
created should be calculated and included in the escrow deposit.
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    [Note: If the amount to be paid is less than $10,000, payment 
should be made by check using the following alternative Paragraph 
4.]

    4. Payment of Past Response Costs to the EPA Hazardous Substance 
Superfund. Within 30 days of entry of this Consent Decree, Settling 
Defendants shall pay to the EPA Hazardous Substance Superfund $________ 
in reimbursement of Past Response Costs, plus an additional sum for 
Interest on that amount calculated from the date set forth in the 
definition of Past Response Costs through the date of payment. Payment 
shall be made by certified check or checks or cashier's check or checks 
made payable to ``U.S. Department of Justice,'' referencing the name 
and address of the party making payment, the EPA Region and Site Spill 
ID Number ________ [insert 4-digit number, first 2 numbers represent 
the Region (01-10), second 2 numbers represent the Region's Site/Spill 
Identification number], USAO File Number ________, and DOJ Case Number 
________. Settling Defendants shall send the check[s] to:
    [Insert address of Financial Litigation Unit of U.S. Attorney's 
Office for the District in which the Consent Decree will be entered]
    Settling Defendants shall send notice that such payment has been 
made to EPA and DOJ in accordance with Section XI (Notices and 
Submissions) and to [insert names and mailing addresses of the Regional 
Financial Management Officer and any other receiving officials at EPA].

    [Note: If payment is to be made to a State, insert the following 
optional paragraph.]

    [[____. Payment of Past Response Costs to the State. Within 30 days 
of entry of this Consent Decree, Settling Defendants shall pay to the 
State $________, in the form of a certified check or checks or 
cashier's check or checks, in reimbursement of State Past Response 
Costs. The check[s] shall be made payable to ______________ and shall 
reference [insert name of case]. Settling Defendants shall send the 
check[s] to: Insert address provided by State]]

VI. Failure to Comply With Requirements of Consent Decree

    5. Interest on Late Payments. In the event that any payment[s] 
required by Section V (Reimbursement of Response Costs) or Section VI, 
Paragraph 6 (Stipulated Penalty), are not received when due, Interest 
shall continue to accrue on the unpaid balance through the date of 
payment.
    6. Stipulated Penalty.
    a. If any amounts due to EPA [or to the State] under this Consent 
Decree are not paid by the required date, Settling Defendants shall pay 
to EPA [, or to the State if the delayed payment is for State Past 
Response Costs,] as a stipulated penalty, in addition to the Interest 
required by Paragraph 5, $________ per violation per day that such 
payment is late. [[____. If Settling Defendants do not comply with 
Section ____ (Site Access), Section ____ (Access to Information), or 
Section ____ [insert cross-reference to any other non-payment 
requirements for which a stipulated penalty applies], Settling 
Defendants shall pay to EPA, as a stipulated penalty, $________ per 
violation per day of such noncompliance.]]

    [Note: Escalating payment schedules may be used in Paragraph 
6(a) and in the optional 

[[Page 62449]]
paragraph immediately above concerning stipulated penalties for 
violations of non-payment requirements of the consent decree.]

    b. Stipulated penalties are due and payable within 30 days of the 
date of the demand for payment of the penalties by EPA [or the State]. 
All payments to EPA under this Paragraph shall be made by certified or 
cashier's check made payable to ``EPA Hazardous Substance Superfund'' 
and shall be sent to: [Insert Regional Lockbox number and address]
    All payments shall indicate that the payment is for stipulated 
penalties and shall reference the name and address of the party making 
payment, the EPA Region and Site Spill ID Number ________ [insert 4-
digit number, first 2 numbers represent the Region (01-10), second 2 
numbers represent the Region's Site/Spill Identification number], USAO 
File Number ________, and DOJ Case Number ________. Copies of check[s] 
paid pursuant to this Paragraph, and any accompanying transmittal 
letter[s], shall be sent to EPA and DOJ as provided in Section XI 
(Notices and Submissions) and to [insert title and address of Regional 
Financial Management Officer and any other receiving official at EPA].

    [Note: If applicable, insert State payment instructions for 
stipulated penalties for failure to pay State Past Response Costs.]

    c. Penalties shall accrue as provided in this Paragraph regardless 
of whether EPA [or the State] has notified Settling Defendants of the 
violation or made a demand for payment, but need only be paid upon 
demand. All penalties shall begin to accrue on the day after complete 
performance is due or the day a violation occurs, and shall continue to 
accrue through the final day of correction of the noncompliance or 
completion of the activity. Nothing herein shall prevent the 
simultaneous accrual of separate penalties for separate violations of 
this Consent Decree.
    7. If the United States [or the State] brings an action to enforce 
this Consent Decree, Settling Defendants shall reimburse the United 
States [and the State] for all costs of such action, including but not 
limited to costs of attorney time.
    8. Payments made under Paragraphs 5-7 shall be in addition to any 
other remedies or sanctions available to Plaintiff[s] by virtue of 
Settling Defendants' failure to comply with the requirements of this 
Consent Decree.
    9. The obligations of Settling Defendants to pay amounts owed the 
United States [and the State] under this Consent Decree are joint and 
several. In the event of the failure of any one or more Settling 
Defendants to make the payments required under this Consent Decree, the 
remaining Settling Defendants shall be responsible for such payments.
    10. Notwithstanding any other provision of this Section, the United 
States may, in its unreviewable discretion, waive payment of any 
portion of the stipulated penalties that have accrued pursuant to this 
Consent Decree.

VII. Covenant Not to Sue By Plaintiff[S]

    11. Covenant Not to Sue by United States. Except as specifically 
provided in Paragraph 12 (Reservation of Rights by United States), the 
United States covenants not to sue Settling Defendants pursuant to 
Section 107(a) of CERCLA, 42 U.S.C. Sec. 9607(a), to recover Past 
Response Costs. This covenant not to sue shall take effect upon receipt 
by EPA of all payments required by Section V, Paragraph 4 (Payment of 
Past Response Costs to the United States) and Section VI, Paragraphs 5 
(Interest on Late Payments) and 6(a) (Stipulated Penalty for Late 
Payment). This covenant not to sue is conditioned upon the satisfactory 
performance by Settling Defendants of their obligations under this 
Consent Decree. This covenant not to sue extends only to Settling 
Defendants and does not extend to any other person.
    12. Reservation of Rights by United States. The covenant not to sue 
set forth in Paragraph 11 does not pertain to any matters other than 
those expressly specified therein. 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:
    a. liability for failure of Settling Defendants to meet a 
requirement of this Consent Decree;
    b. liability for damages for injury to, destruction of, or loss of 
natural resources, and for the costs of any natural resource damage 
assessments;
    c. criminal liability;
    d. liability for injunctive relief or administrative order 
enforcement under Section 106 of CERCLA, 42 U.S.C. Sec. 6906; and
    e. liability for costs incurred or to be incurred by the United 
States that are not within the definition of Past Response Costs.

    [Note: If the State is a co-plaintiff, insert separate 
paragraphs for the State's covenant not to sue settling defendants 
and reservation of rights.]

VIII. Covenant Not to Sue By Settling Defendants

    13. Settling Defendants covenant not to sue and agree not to assert 
any claims or causes of action against the United States [or the 
State], or its [their] contractors or employees, with respect to Past 
Response Costs [and State Response Costs] or this Consent Decree, 
including but not limited to:
    a. any direct or indirect claim for reimbursement from the 
Hazardous Substance Superfund based on Sections 106(b)(2), 107, 111, 
112, or 113 of CERCLA, 42 U.S.C. Secs. 9606(b)(2), 9607, 9611, 9612, or 
9613, or any other provision of law;
    b. any claim arising out of response actions at the Site for which 
the Past Response Costs were incurred; and
    c. any claim against the United States pursuant to Sections 107 and 
113 of CERCLA, 42 U.S.C. Secs. 9607 and 9613, relating to Past Response 
Costs.<SUP>7

    \7\ The 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.
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    14. 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. Sec. 9611, or 40 C.F.R. 300.700(d).

IX. Effect of Settlement/Contribution Protection

    15. 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. Each of the Parties expressly reserves 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.
    16. The Parties agree, and by entering this Consent Decree this 
Court finds, that Settling Defendants are entitled, as of the effective 
date of this Consent Decree, to protection from contribution actions or 
claims as provided by Section 113(f)(2) of CERCLA, 42 U.S.C. 
Sec. 9613(f)(2), for ``matters addressed'' in 

[[Page 62450]]
this Consent Decree. The ``matters addressed'' in this Consent Decree 
are Past Response Costs.<SUP>8

    \8\In exceptional situations, different coverage may apply.
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    17. Each Settling Defendant agrees that, with respect to any suit 
or claim for contribution brought by it for matters related to this 
Consent Decree, it will notify EPA and DOJ [and the State] in writing 
no later than 60 days prior to the initiation of such suit or claim. 
Each Settling Defendant also agrees that, with respect to any suit or 
claim for contribution brought against it for matters related to this 
Consent Decree, it will notify EPA and DOJ [and the State] in writing 
within 10 days of service of the complaint or claim upon it. In 
addition, each Settling Defendant shall notify EPA and DOJ [and the 
State] within 10 days of service or receipt of any Motion for Summary 
Judgment, and within 10 days of receipt of any order from a court 
setting a case for trial, for matters related to this Consent Decree.
    18. In any subsequent administrative or judicial proceeding 
initiated by the United States [or the State] 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 by the United States [or the 
State] in the subsequent proceeding were or should have been brought in 
the instant case; provided, however, that nothing in this Paragraph 
affects the enforceability of the Covenant Not to Sue by Plaintiff[s] 
set forth in Section VII.
[____. Site Access]<SUP>9

    \9\Include this section if 1) access to the site is needed and 
2) the site owner is a settling defendant or other settling 
defendants control access to the site or to any other property to 
which access is needed. Renumber sections and paragraphs as 
necessary. If any of the settling defendants will need to provide 
institutional controls as part of any response action, include such 
a provision within this section and change the name of this section 
to Site Access/Institutional Controls.
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    [[____. Commencing upon the date of lodging of this Consent Decree, 
Settling Defendants agree to provide the United States [, the State,] 
and its [their] representatives, including EPA and its contractors, 
access at all reasonable times to the Site and to any other property 
owned or controlled by Settling Defendants to which access is 
determined by EPA [or the State] to be required for the implementation 
of this Consent Decree, or for the purpose of conducting any response 
activity related to the Site, including but not limited to:
    a. Monitoring of investigation, removal, remedial or other 
activities at the Site;
    b. Verifying any data or information submitted to the United States 
[or the State];
    c. Conducting investigations relating to contamination at or near 
the Site;
    d. Obtaining samples;
    e. Assessing the need for, planning, or implementing response 
actions at or near the Site; [and]
    f. Inspecting and copying records, operating logs, contracts, or 
other documents maintained or generated by Settling Defendants or their 
agents, consistent with Section ____ (Access to Information).
    [Note: If institutional controls or any other provisions 
requiring monitoring are included in the decree, also include the 
following subparagraph g.]
    [g. Assessing Settling Defendants' compliance with this Consent 
Decree.]
    ____. Notwithstanding any provision of this Consent Decree, the 
United States [and the State] retain[s] all of its [their] access 
authorities and rights, including enforcement authorities related 
thereto, under CERCLA, the Resource Conservation and Recovery Act, 42 
U.S.C. Sec. 6927, and any other applicable statutes or regulations.
    ____. Notice of Obligations to Successors-in-Title.
    a. Within 15 days after entry of this Consent Decree, [Owner 
Settling Defendants] shall record [insert either ``a certified copy of 
this Consent Decree'' or ``a notice of the entry of this Consent 
Decree''] with the Recorder's Office [or Registry of Deeds or other 
appropriate office], __________ County, State of __________.<SUP>10 
Thereafter, each deed, title, or other instrument conveying an interest 
in the property included in the Site shall contain a notice stating 
that the property is subject to this Consent Decree [and any lien 
retained by the United States] and shall reference the recorded 
location of the Consent Decree and any restrictions applicable to the 
property under this Consent Decree.

    \10\ If an institutional controls provision is included in this 
section, this paragraph should be amended to require the owner 
settling defendants to record in the chain of title a restrictive 
covenant that specifies the institutional controls. The 
institutional controls to be implemented should be described in an 
appendix to this decree.
---------------------------------------------------------------------------

    b. The obligations of each [Owner Settling Defendant] with respect 
to the provision of access under Section ____ (Site Access) [and the 
implementation of institutional controls under Paragraph ____] shall be 
binding upon any and all Settling Defendants and upon any and all 
persons who subsequently acquire any such interest or portion thereof 
(hereinafter ``Successors-in-Title''). Within 15 days after the entry 
of this Consent Decree, each [Owner Settling Defendant] shall record at 
the Recorder's Office [or Registry of Deeds or other appropriate office 
where land ownership and transfer records are maintained for the 
property] a notice of obligation to provide access under Section ____ 
(Site Access) and related covenants, if any. Each subsequent instrument 
conveying an interest to any such property included in the Site shall 
reference the recorded location of such notice and covenants applicable 
to the property.
    c. Any [Owner Settling Defendant] and any Successor-in-Title shall, 
at least 30 days prior to the conveyance of any such interest, give 
written notice of this Consent Decree to the grantee and written notice 
to EPA [and the State] of the proposed conveyance, including the name 
and address of the grantee, and the date on which notice of the Consent 
Decree was given to the grantee. In the event of any such conveyance, 
the Settling Defendants' obligations under this Consent Decree, 
including their obligation to provide or secure access pursuant to 
Section ____ (Site Access), shall continue to be met by Settling 
Defendants. In no event shall the conveyance of an interest in property 
that includes, or is a portion of, the Site release or otherwise affect 
the liability of Settling Defendants to comply with this Consent 
Decree.]]
[____. Access to Information\11\]

    \11\Include this section only if settling defendants have been 
or will be involved in cleanup efforts at the site or if they may 
possess information which may assist the Agency in its cleanup or 
enforcement efforts.
---------------------------------------------------------------------------

    [____ . Settling Defendants shall provide to EPA [and the State], 
upon request, copies of all documents and information within their 
possession or control or that of their contractors or agents relating 
to activities at the Site [or to the implementation of this Consent 
Decree], including, but not limited to, sampling, analysis, chain of 
custody records, manifests, trucking logs, receipts, reports, sample 
traffic routing, correspondence, or other documents or information 
related to the Site.
[____. Confidential Business Information and Privileged Documents.
    a. Settling Defendants may assert business confidentiality claims 
covering part or all of the documents or information submitted to 
Plaintiff[s] 

[[Page 62451]]
under this Consent Decree to the extent permitted by and in accordance 
with Section 104(e)(7) of CERCLA, 42 U.S.C. Sec. 9604(e)(7), and 40 
C.F.R. 2.203(b). Documents or information determined to be confidential 
by EPA will be accorded the protection specified in 40 C.F.R. Part 2, 
Subpart B. If no claim of confidentiality accompanies documents or 
information when they are submitted to EPA [and the State], or if EPA 
has notified Settling Defendants that the documents or information are 
not confidential under the standards of Section 104(e)(7) of CERCLA, 
the public may be given access to such documents or information without 
further notice to Settling Defendants.
    b. Settling Defendants may assert that certain documents, records 
or other information are privileged under the attorney-client privilege 
or any other privilege recognized by federal law. If Settling 
Defendants assert such a privilege in lieu of providing documents, they 
shall provide Plaintiff[s] with the following: 1) the title of the 
document, record, or information; 2) the date of the document, record, 
or information; 3) the name and title of the author of the document, 
record, or information; 4) the name and title of each addressee and 
recipient; 5) a description of the subject of the document, record, or 
information; and 6) the privilege asserted. However, no documents, 
reports or other information created or generated pursuant to the 
requirements of this or any other consent decree with the United States 
shall be withheld on the grounds that they are privileged. If a claim 
of privilege applies only to a portion of a document, the document 
shall be provided to Plaintiff[s] in redacted form to mask the 
privileged information only. Settling Defendants shall retain all 
records and documents that they claim to be privileged until the United 
States has had a reasonable opportunity to dispute the privilege claim 
and any such dispute has been resolved in the Settling Defendants' 
favor.
    ____. No claim of confidentiality shall be made with respect to any 
data, including but not limited to, all sampling, analytical, 
monitoring, hydrogeologic, scientific, chemical, or engineering data, 
or any other documents or information evidencing conditions at or 
around the Site.]]

X. Retention of Records<SUP>12

    \12\ Renumber this section and all following section headings 
and paragraph numbers if either of the optional sections on Site 
Access or Access to Information is included.
---------------------------------------------------------------------------

    19. Until ____ years after the entry of this Consent Decree, each 
Settling Defendant shall preserve and retain all records and documents 
now in its possession or control, or which come into its possession or 
control, that relate in any manner to response actions taken at the 
Site or the liability of any person for response actions conducted and 
to be conducted at the Site, regardless of any corporate retention 
policy to the contrary.
    20. After the conclusion of the document retention period in the 
preceding paragraph, Settling Defendants shall notify EPA and DOJ [and 
the State] at least 90 days prior to the destruction of any such 
records or documents, and, upon request by EPA or DOJ [or the State], 
Settling Defendants shall deliver any such records or documents to EPA 
[or the State]. Settling Defendants may assert that certain documents, 
records, or other information are privileged under the attorney-client 
privilege or any other privilege recognized by federal law. If Settling 
Defendants assert such a privilege, they shall provide Plaintiff[s] 
with the following: 1) the title of the document, record, or 
information; 2) the date of the document, record, or information; 3) 
the name and title of the author of the document, record, or 
information; 4) the name and title of each addressee and recipient; 5) 
a description of the subject of the document, record, or information; 
and 6) the privilege asserted. However, no documents, reports, or other 
information created or generated pursuant to the requirements of this 
or any other consent decree with the United States shall be withheld on 
the grounds that they are privileged. If a claim of privilege applies 
only to a portion of a document, the document shall be provided to 
Plaintiff[s] in redacted form to mask the privileged information only. 
Settling Defendants shall retain all records and documents that they 
claim to be privileged until the United States has had a reasonable 
opportunity to dispute the privilege claim and any such dispute has 
been resolved in the Settling Defendants' favor.
    21. 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 the Settling Defendant 
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. Secs. 9604(e) and 9622(e) [insert, if applicable, ``, and 
Section 3007 of RCRA, 42 U.S.C. Sec. 6927''].

XI. Notices and Submissions

    22. Whenever, under the terms of this Consent Decree, notice is 
required to be given or a document is required to be sent by one party 
to another, it shall be directed to the individuals at the addresses 
specified below, unless those individuals or their successors give 
notice of a change to the other Parties in writing. Written notice as 
specified herein shall constitute complete satisfaction of any written 
notice requirement of the Consent Decree with respect to the United 
States, EPA, DOJ, [the State,] and Settling Defendants, respectively.

As to the United States:

As to DOJ:

Chief, Environmental Enforcement Section, Environment and Natural 
Resources Division, U.S. Department of Justice (DJ # ________), P.O. 
Box 7611, Washington, D.C. 20044-7611

As to EPA:

[Insert names and addresses of EPA Regional contacts, usually the ORC 
attorney and the RPM or Project Coordinator]

[As to the State:

Insert name and address of State contact if the State is a party to the 
Consent Decree]

As to Settling Defendants:

[Insert name of one person who will serve as the contact for all 
Settling Defendants]

XII. Retention of Jurisdiction

    23. This Court shall retain jurisdiction over this matter for the 
purpose of interpreting and enforcing the terms of this Consent Decree. 


[[Page 62452]]


XIII. Integration[/Appendices]

    24. 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 to and incorporated into this Consent Decree: ``Appendix A'' 
is the complete list of Settling Defendants; and ``Appendix B'' is the 
map of the Site.]

XIV. Lodging and Opportunity for Public Comment

    25. 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 reserves the right to withdraw or withhold its consent if the 
comments regarding the Consent Decree disclose facts or considerations 
which indicate that this Consent Decree is inappropriate, improper, or 
inadequate. Settling Defendants consent to the entry of this Consent 
Decree without further notice.
    26. If for any reason this Court should decline to approve this 
Consent Decree in the form presented, this agreement is voidable at the 
sole discretion of any party and the terms of the agreement may not be 
used as evidence in any litigation between the Parties.

XV. Effective Date

    27. The effective date of this Consent Decree shall be the date 
upon which it is entered by the Court.

XVI. Signatories/Service

    28. Each undersigned representative of a Settling Defendant to this 
Consent Decree and the [Assistant Attorney General for the Environment 
and Natural Resources Division]<SUP>13 of the United States Department 
of Justice [insert State official] certifies that he or she is 
authorized to enter into the terms and conditions of this Consent 
Decree and to execute and bind legally such Party to this document.

    \13\Substitute Chief, Environmental Enforcement Section, where 
the case involves less than $1 million and at least $500,000 is 
being recovered by settlement. Note also that Associate Attorney 
General approval is required if the difference between the total 
amount of the claim and the amount of the settlement exceeds $2 
million or 15% of claim (whichever is greater). See 28 CFR 0.160.
---------------------------------------------------------------------------

    29. 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.
    30. 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 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, including but not limited to, service of a summons.
    So ordered this ________ day of ______________, 19____.
----------------------------------------------------------------------
United States District Judge

    The Undersigned parties enter into this Consent Decree in the 
matter of [insert case name and civil action number], relating to the 
____________ Superfund Site.

For the United States of America

Date:------------------------------------------------------------------
----------------------------------------------------------------------
[Name] Assistant Attorney General<SUP>14 Environment and Natural 
Resources Division, U.S. Department of Justice, Washington, D.C. 
20530

    \14\See supra n. 13.
---------------------------------------------------------------------------

[Name] United States Attorney [Address]

----------------------------------------------------------------------

[Name] Attorney, Environmental Enforcement Section, Environment and 
Natural Resources Division, U.S. Department of Justice, P.O. Box 
7611, Washington, DC 20044-7611

----------------------------------------------------------------------
[Name]<SUP>15 Assistant Administrator for Enforcement and Compliance 
Assurance, U.S. Environmental Protection Agency, 401 M Street S.W., 
Washington, D.C. 20460

    \15\Include AA-OECA signature block only if he or she has a 
concurrence role under Delegation No. 14-13-B.
---------------------------------------------------------------------------

----------------------------------------------------------------------
[Name] Regional Administrator, Region [    ], U.S. Environmental 
Protection Agency, [Address]

----------------------------------------------------------------------
[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 ______ Superfund Site.

For the State of [          ]

Date:------------------------------------------------------------------

----------------------------------------------------------------------
[Names and addresses of State signatories]]
    The undersigned party enters into this Consent Decree in the 
matter of [insert case name and civil action number], relating to 
the __________ Superfund Site.

For Defendant [            ]

Date:------------------------------------------------------------------

----------------------------------------------------------------------
[Names and address of Defendant's signatories]

    Agent Authorized to Accept Service on Behalf of Above-signed 
Party:

Name:------------------------------------------------------------------
Title:-----------------------------------------------------------------
Address:---------------------------------------------------------------

Environmental Protection Agency Model CERCLA Section 122(h)(1) 
Agreement for Recovery of Past Response Costs

    This model and any internal procedures adopted for its 
implementation and use are intended as guidance for employees of the 
U.S. Environmental Protection Agency. They do not constitute rulemaking 
by the 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 Agency may take action at variance with this model or 
its internal implementing procedures.

Model CERCLA Section 122(h)(1) Agreement for Recovery of Past Response 
Costs

Table of Contents

I. Jurisdiction
II. Background
III. Parties Bound
IV. Definitions
V. Reimbursement of Response Costs
VI. Failure To Comply With Agreement
VII. Covenant Not To Sue by EPA
VIII. Reservations of Rights by EPA
IX. Covenant Not To Sue by Settling Parties
X. Effect of Settlement/Contribution Protection
XI. Retention of Records
XII. Notices and Submissions
XIII. Integration[/Appendices]
XIV. Public Comment
____. [Attorney General Approval]
XV. Effective Date

I. Jurisdiction

    In the matter of: [Site Name] [City, County, State] [Names of 
Settling Parties] Settling Parties

Agreement for Recovery of Past Response Costs

U.S. EPA Region ______
CERCLA Docket No. ______
Proceeding Under Section 122(h)(1) of CERCLA 42 U.S.C. 
Sec. 9622(h)(1)

    1. This Agreement is entered into pursuant to the authority vested 
in the Administrator of the U.S. Environmental Protection Agency 
(``EPA'') by Section 122(h)(1) of the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980, as amended 
(``CERCLA''), 42 U.S.C. Sec. 6922(h)(1), which authority 

[[Page 62453]]
has been delegated to the Regional Administrators of the EPA by EPA 
Delegation No. 14-14-D.

    [Note: Also reference any internal Regional redelegations of 
authority under 14-14-D.]

    2. This Agreement is made and entered into by EPA and the [insert 
names or reference attached appendix listing settling parties] 
(``Settling Parties''). Each Settling Party consents to and will not 
contest EPA's jurisdiction to enter into this Agreement or to implement 
or enforce its terms.

II. Background

    3. This Agreement concerns the [insert Site name] (``Site'') 
located in [insert Site location]. EPA alleges that the Site is a 
``facility'' as defined by Section 101(9) of CERCLA, 42 U.S.C. 
Sec. 9601(9).
    4. In response to the release or threatened release of hazardous 
substances at or from the Site, EPA undertook response actions at the 
Site pursuant to Section 104 of CERCLA, 42 U.S.C. Sec. 9604.

    [Note: A brief description of the release or threatened release 
and of the response actions undertaken may be included.]

    5. In performing this response action, EPA incurred response costs 
at or in connection with the Site.
    6. EPA alleges that Settling Parties are responsible parties 
pursuant to Section 107(a) of CERCLA, 42 U.S.C. Sec. 9607(a), and are 
jointly and severally liable for response costs incurred at or in 
connection with the Site.

    [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, 
excluding interest, insert the following paragraph and renumber all 
subsequent paragraphs.]

    [______. The Regional Administrator of EPA Region ______, or his/
her delegatee, has determined that 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.]
    7. EPA and Settling Parties desire to resolve Settling Parties' 
alleged civil liability for Past Response Costs without litigation and 
without the admission or adjudication of any issue of fact or law.

III. Parties Bound

    8. This Agreement shall be binding upon EPA and upon Settling 
Parties and their [heirs], successors and assigns. Any change in 
ownership or corporate or other legal status of a Settling Party, 
including but not limited to, any transfer of assets or real or 
personal property, shall in no way alter such Settling Party's 
responsibilities under this Agreement. Each signatory to this Agreement 
certifies that he or she is authorized to enter into the terms and 
conditions of this Agreement and to bind legally the party represented 
by him or her.

IV. Definitions

    9. Unless otherwise expressly provided herein, terms used in this 
Agreement which are defined in CERCLA or in regulations promulgated 
under CERCLA shall have the meaning assigned to them in CERCLA or in 
such regulations. Whenever terms listed below are used in this 
Agreement or in any appendix attached hereto, 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. 
Sec. 9601, et seq.
    b. ``Agreement'' shall mean this Agreement and any attached 
appendices. In the event of conflict between this Agreement and any 
appendix, the Agreement shall control.
    c. ``Day'' shall mean a calendar day. In computing any period of 
time under this Agreement, 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 of 
the United States.
    e. ``Interest'' shall mean interest at the current rate specified 
for interest on investments of the Hazardous Substance Superfund 
established by 26 U.S.C. Sec. 9507, compounded annually on October 1 of 
each year, in accordance with 42 U.S.C. Sec. 9607(a).<SUP>1

    \1\ The 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.
---------------------------------------------------------------------------

    f. ``Paragraph'' shall mean a portion of this Agreement identified 
by an arabic numeral or a lower case letter.
    g. ``Parties'' shall mean EPA and the Settling Parties.
    h. ``Past Response Costs'' shall mean all costs, including but not 
limited to direct and indirect costs, that EPA or the U.S. Department 
of Justice on behalf of EPA has paid at or in connection with the Site 
through [insert date], plus accrued Interest on all such costs through 
such date.<SUP>2

    \2\ If the past costs settlement is partial, it may be necessary 
to continue the definition with a brief description of the past 
response action(s) which are being paid for or compromised, such as: 
``. . . for the response action described in the Record of Decision 
for the First Operable Unit at the Site dated ______'' or ``for the 
removal action described in the action memorandum for the Site dated 
______.'' Exercise care in describing the activities covered, as 
this description may affect the scope of the covenant not to sue and 
contribution protection. For clarity, the description of the past 
response action may need to indicate which response actions are not 
included within the definition of Past Response Costs. Check to be 
sure that the date used in the definition of Past Response Costs 
does not inadvertently include costs that are outside the scope of 
the definition. In some cases, it may be useful to attach a 
standard, Regionally-prepared cost summary listing the costs that 
are within the scope of the definition. This may be done: 1) to be 
sure that no confusion arises as to which costs are being 
compromised; or 2) to indicate which outstanding past cost claims 
are being resolved through the settlement, i.e., to indicate that 
the recovered costs are to be applied to particular portions of the 
debt.
---------------------------------------------------------------------------

    i. ``Section'' shall mean a portion of this Agreement identified by 
a roman numeral.
    j. ``Settling Parties'' shall mean [insert names of settling 
parties, or if very numerous, ``those parties identified in Appendix 
______.'']
    k. ``Site'' shall mean the ______ Superfund site, encompassing 
approximately ______ acres, located at [insert address or description 
of location] in [insert City, County, State], and [insert either 
``depicted more clearly on the map included in Appendix ______'' or 
``designated by the following property description: ______.'']
    l. ``United States'' shall mean the United States of America, 
including it departments, agencies and instrumentalities.

V. Reimbursement of Response Costs

    10. Within 30 days of the effective date of this Agreement, the 
Settling Parties shall pay to the EPA Hazardous Substance Superfund 
$______ in reimbursement of Past Response Costs, plus an additional sum 
for Interest on that amount calculated from the date set forth in the 
definition of Past Response Costs through the date of payment.<SUP>3

    \3\ As an alternative to calculation and payment of interest 
from the Past Response Costs date through the date of payment, 
settling parties may agree to place the amount agreed upon into an 
interest-bearing escrow account to be disbursed to EPA upon the 
effective date of the Agreement. If this method is used, accrued 
interest from the Past Response Costs date through the date the 
escrow account is created should be calculated and included in the 
escrow deposit.
---------------------------------------------------------------------------

    11. Payments 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 ______ [insert 4-digit 
number, first 2 

[[Page 62454]]
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]
    12. At the time of payment, each Settling Party shall send notice 
that such payment has been made to:
[Insert name and address of Regional Attorney and/or Remedial Project 
Manager]

VI. Failure to Comply With Agreement

    13. In the event that any payment required by Paragraph 10 is not 
made when due, Interest shall continue to accrue on the unpaid balance 
through the date of payment.
    14. If any amounts due to EPA under Paragraph 10 are not paid by 
the required date, Settling Parties shall pay to EPA, as a stipulated 
penalty, in addition to the Interest required by Paragraph 13, $______ 
per violation per day that such payment is late.

    [[[Note: If the Agreement includes any non-payment obligations 
for which a stipulated penalty is due, insert, ``If Settling Parties 
do not comply with [reference sections containing non-payment 
obligations], Settling Parties shall pay to EPA, as a stipulated 
penalty, $______ per violation per day of such noncompliance.'' 
Escalating penalty payment schedules may be used for payment or non-
payment obligations.]]

    15. Stipulated penalties are due and payable within 30 days of the 
date of demand for payment of the penalties. All payments to EPA under 
this Paragraph shall be identified as ``stipulated penalties'' and 
shall made in accordance with Paragraphs 11 and 12.
    16. Penalties shall accrue as provided above regardless of whether 
EPA has notified the Settling Parties of the violation or made a demand 
for payment, but need only be paid upon demand. All penalties shall 
begin to accrue on the day after performance is due, or the day a 
violation occurs, and shall continue to accrue through the final day of 
correction of the noncompliance or completion of the activity. Nothing 
herein shall prevent the simultaneous accrual of separate penalties for 
separate violations of this Agreement.
    17. In addition to the Interest and Stipulated Penalty payments 
required by this Section and any other remedies or sanctions available 
to EPA by virtue of Settling Parties' failure to comply with the 
requirements of this Agreement, any Settling Party who fails or refuses 
to comply with any term or condition of this Agreement shall be subject 
to enforcement action pursuant to Section 122(h)(3) of CERCLA, 42 
U.S.C. Sec. 9622(h)(3). If the United States, on behalf of EPA, brings 
an action to enforce this Agreement, Settling Parties shall reimburse 
the United States for all costs of such action, including but not 
limited to costs of attorney time.
    18. The obligations of Settling Parties to pay amounts owed to EPA 
under this Agreement are joint and several. In the event of the failure 
of any one or more Settling Parties to make the payments required under 
this Agreement, the remaining Settling Parties shall be responsible for 
such payments.
    19. Notwithstanding any other provision of this Section, EPA may, 
in its unreviewable discretion, waive payment of any portion of the 
stipulated penalties that have accrued pursuant to this Agreement.

VII. Covenant Not To Sue By EPA

    20. Except as specifically provided in Paragraph 21 (Reservations 
of Rights by EPA), EPA covenants not to sue Settling Parties pursuant 
to Section 107(a) of CERCLA, 42 U.S.C. Sec. 9607(a), to recover Past 
Response Costs. This covenant shall take effect upon receipt by EPA of 
all amounts required by Section V (Reimbursement of Response Costs) and 
Section VI, Paragraphs 13 (Interest on Late Payments) and 14 
(Stipulated Penalty for Late Payment). This covenant not to sue is 
conditioned upon the satisfactory performance by Settling Parties of 
their obligations under this Agreement. This covenant not to sue 
extends only to Settling Parties and does not extend to any other 
person.

VIII. Reservations of Rights By EPA

    21. The covenant not to sue by EPA set forth in Paragraph 20 does 
not pertain to any matters other than those expressly identified 
therein. EPA reserves, and this Agreement is without prejudice to, all 
rights against Settling Parties with respect to all other matters, 
including but not limited to:
    a. liability for failure of Settling Parties to meet a requirement 
of this Agreement;
    b. liability for costs incurred or to be incurred by the United 
States that are not within the definition of Past Response Costs;
    c. liability for injunctive relief or administrative order 
enforcement under Section 106 of CERCLA, 42 U.S.C. Sec. 9606;
    d. criminal liability; and
    e. liability for damages for injury to, destruction of, or loss of 
natural resources, and for the costs of any natural resource damage 
assessments.
    22. Nothing in this Agreement is intended to be nor shall it be 
construed as a release, covenant not to sue, or compromise of any claim 
or cause of action, administrative or judicial, civil or criminal, past 
or future, in law or in equity, which the United States may have 
against any person, firm, corporation or other entity not a signatory 
to this Agreement.

IX. Covenant Not To Sue By Setting Parties

    23. Settling Parties agree not to assert any claims or causes of 
action against the United States, or its contractors or employees, with 
respect to Past Response Costs or this Agreement, including but not 
limited to:
    a. any direct or indirect claim for reimbursement from the EPA 
Hazardous Substance Superfund established by 26 U.S.C. Sec. 9507, based 
on Sections 106(b)(2), 107, 111, 112, or 113 of CERCLA, 42 U.S.C. 
Secs. 9606(b)(2), 9607, 9611, 9612, or 9613, or any other provision of 
law;
    b. any claims arising out of the response actions at the Site for 
which the Past Response Costs were incurred; and
    c. any claim against the United States pursuant to Sections 107 and 
113 of CERCLA, 42 U.S.C. Secs. 9607 and 9613, relating to Past Response 
Costs.<SUP>4

    \4\The settlement should, wherever possible, release or resolve 
any claims by settling parties 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.
---------------------------------------------------------------------------

    24. Nothing in this Agreement shall be deemed to constitute 
approval or preauthorization of a claim within the meaning of Section 
111 of CERCLA, 42 U.S.C. Sec. 9611, or 40 C.F.R. 300.700(d).

X. Effect of Settlement/Contribution Protection

    25. Nothing in this Agreement shall be construed to create any 
rights in, or grant any cause of action to, any person not a Party to 
this Agreement. EPA and Settling Parties 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 

[[Page 62455]]
relating in any way to the Site against any person not a Party hereto.
    26. EPA and Settling Parties agree that the actions undertaken by 
Settling Parties in accordance with this Agreement do not constitute an 
admission of any liability by any Settling Party. Settling Parties do 
not admit, and retain the right to controvert in any subsequent 
proceedings other than proceedings to implement or enforce this 
Agreement, the validity of the facts or allegations contained in 
Section II of this Agreement.
    27. The Parties agree that Settling Parties are entitled, as of the 
effective date of this Agreement, to protection from contribution 
actions or claims as provided by Sections 113(f)(2) and 122(h)(4) of 
CERCLA, 42 U.S.C. Secs. 9613(f)(2) and 9622(h)(4), for ``matters 
addressed'' in this Agreement. The ``matters addressed'' in this 
Agreement are Past Response Costs.
    28. Each Settling Party agrees that with respect to any suit or 
claim for contribution brought by it for matters related to this 
Agreement, it will notify EPA in writing no later than 60 days prior to 
the initiation of such suit or claim. Each Settling Party also agrees 
that, with respect to any suit or claim for contribution brought 
against it for matters related to this Agreement, it will notify EPA in 
writing within 10 days of service of the complaint or claim upon it. In 
addition, each Settling Party shall notify EPA within 10 days of 
service or receipt of any Motion for Summary Judgment and within 10 
days of receipt of any order from a court setting a case for trial, for 
matters related to this Agreement.
    29. In any subsequent administrative or judicial proceeding 
initiated by EPA, or by the United States on behalf of EPA, for 
injunctive relief, recovery of response costs, or other appropriate 
relief relating to the Site, Settling Parties 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 case; provided, however, that nothing in this Paragraph affects 
the enforceability of the covenant not to sue by EPA set forth in 
Paragraph 20.

XI. Retention of Records

    30. Until ____ years after the effective date of this Agreement, 
each Settling Party shall preserve and retain all records and documents 
now in its possession or control, or which come into its possession or 
control, that relate in any manner to response actions taken at the 
Site or to the liability of any person for response actions conducted 
and to be conducted at the Site, regardless of any corporate retention 
policy to the contrary.
    31. After the conclusion of the document retention period in the 
preceding paragraph, Settling Parties shall notify EPA at least 90 days 
prior to the destruction of any such records or documents, and, upon 
request by EPA, Settling Parties shall deliver any such records or 
documents to EPA. Settling Parties may assert that certain documents, 
records, or other information are privileged under the attorney-client 
privilege or any other privilege recognized by federal law. If Settling 
Parties assert such a privilege, they shall provide EPA with the 
following: 1) the title of the document, record, or information; 2) the 
date of the document, record, or information; 3) the name and title of 
the author of the document, record, or information; 4) the name and 
title of each addressee and recipient; 5) a description of the subject 
of the document, record, or information; and 6) the privilege asserted. 
However, no documents, reports, or other information created or 
generated pursuant to the requirements of this or any other judicial or 
administrative settlement with the United States shall be withheld on 
the grounds that they are privileged. If a claim of privilege applies 
only to a portion of a document, the document shall be provided to EPA 
in redacted form to mask the privileged information only. Settling 
Parties shall retain all records and documents that they claim to be 
privileged until EPA has had a reasonable opportunity to dispute the 
privilege claim and any such dispute has been resolved in Settling 
Parties' favor.
    32. By signing this Agreement, each Settling Party 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 the Settling Party 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. Secs. 9604(e) and 9622(e) [insert, if applicable, ``, and 
Section 3007 of the Resource, Conservation and Recovery Act, 42 U.S.C. 
Sec. 6927.'']

XII. Notices and Submissions

    33. Whenever, under the terms of this Agreement, notice is required 
to be given or a document is required to be sent by one Party to 
another, it shall be directed to the individuals at the addresses 
specified below, unless those individuals or their successors give 
notice of a change to the other Parties in writing. Written notice as 
specified herein shall constitute complete satisfaction of any written 
notice requirement of this Agreement with respect to EPA and Settling 
Parties.

As to EPA:

[Insert names and addresses of EPA Regional contacts, usually the ORC 
attorney and the RPM or Project Coordinator]

As to Settling Parties:

[Insert name of one person who will serve as the contact for all 
Settling Parties]

XIII. INTEGRATION[/APPENDICES]

    34. This Agreement and its appendices constitute the final, 
complete and exclusive agreement and understanding among the Parties 
with respect to the settlement embodied in this Agreement. The Parties 
acknowledge that there are no representations, agreements or 
understandings relating to the settlement other than those expressly 
contained in this Agreement. [The following appendices are attached to 
and incorporated into this Agreement: ``Appendix A is ________; etc.'']

XIV. Public Comment

    35. This Agreement 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. 
Sec. 9622(i). In accordance with Section 122(i)(3) of CERCLA, EPA may 
modify or withdraw its consent to this Agreement if comments received 
disclose facts or considerations which indicate that this Agreement is 
inappropriate, improper or inadequate. 

[[Page 62456]]


____. 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, 
and the agreement compromises a claim (i.e., recovers less than 100% 
of past costs, including accrued interest). If Attorney General 
approval is required, 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 agreement 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 agreement 
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. If this 
section is used, renumber the Effective Date section and paragraph.]

    [[____. The Attorney General or [his/her] designee has approved the 
settlement embodied in this Agreement in accordance with Section 
122(h)(1) of CERCLA, 42 U.S.C. Sec. 9622(h)(1).]]

XV. Effective Date

    36. The effective date of this Agreement shall be the date upon 
which EPA issues written notice that the public comment period pursuant 
to Paragraph 35 has closed and that comments received, if any, do not 
require modification of or EPA withdrawal from this Agreement.

    It is so agreed:
U.S. Environmental Protection Agency

By:--------------------------------------------------------------------
[Name]
Regional Administrator, Region ____

-----------------------------------------------------------------------
[Date]

    [Note: If the Regional Administrator has redelegated authority 
to enter into Section 122(h) settlements, insert name and title of 
delegated official.]

    The undersigned settling party enters into this Agreement in the 
matter of [insert U.S. EPA docket number], relating to the [insert 
site name and location]:

For Settling Party:
-----------------------------------------------------------------------
[Name]

-----------------------------------------------------------------------
[Address] 
By:--------------------------------------------------------------------
[Name]

-----------------------------------------------------------------------
[Date]
[FR Doc. 95-29745 Filed 12-5-95; 8:45 am]
BILLING CODE 6560-50-P