[Federal Register Volume 60, Number 235 (Thursday, December 7, 1995)]
[Notices]
[Pages 62849-62858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29746]



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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5340-6]


Superfund Program; Revised Model De Minimis Contributor Consent 
Decree and Administrative Order on Consent

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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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 case-specific 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 

[[Page 62850]]
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 [____________] 
[____________] Division<SUP>1

    \1\Follow local rules for caption format.
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    United States of America, Plaintiff, v. [Defendants] Defendants.

[Civil Action No. ________]

Judge------------------------------------------------------------------

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. Secs. 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 ______, 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 ``$______'' or ``between $______ and $______'']; 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 ``______% of the 
hazardous substances at the Site,'' or ``______ 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. Secs. 9606 

[[Page 62851]]
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).<SUP>2

    \2\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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    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 ________ 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 attached as Appendix B'' or 
``designated by the following property description: ________.'']
    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 ________ [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 ________ 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. 
________, 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, [`$________' or `________%'] shall be deposited in the EPA 
Hazardous Substance Superfund as 

[[Page 62852]]
reimbursement for response costs incurred at or in connection with the 
Site as of [insert date] by the EPA Hazardous Substance Superfund, 
and [`$________' or `________%' 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<SUP>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,]<SUP>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.

    \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.
    \4\Note 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.
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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;<SUP>5 or

    \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.
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    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 
________% 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 
$________ [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 ________'' or ``in Appendix ________''] 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 

[[Page 62853]]
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;<SUP>6 
and

    \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.''
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    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.<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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    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<SUP>8 pursuant to Sections 107 or 113 of CERCLA, 42 U.S.C. 9607 
and 9613.

    \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.
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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.]<SUP>9

    \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.
---------------------------------------------------------------------------

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 ________ day of ________, 19________.
----------------------------------------------------------------------
United States District Judge

[[Page 62854]]

    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:------------------------------------------------------------------

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

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

    Agent Authorized to Accept Service on Behalf of Above-signed Party:
Name:-----------------------------------------------------------------
Title:----------------------------------------------------------------
Address:---------------------------------------------------------------

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. ________]

    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 

[[Page 62855]]
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. Sec. 9607(a).\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.
---------------------------------------------------------------------------

    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 ________ Superfund Site, encompassing 
approximately ________ 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: ________.'']
    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 ``________% of the 
hazardous substances at the Site,'' or ``________ 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 
``$________'' or ``between $________ and $________'']. 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).]


[[Page 62856]]

    [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 ________ [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, 
[`$________' or `________%'] shall be deposited in the EPA Hazardous 
Substance Superfund as reimbursement for response costs incurred at 
or in connection with the Site as of [insert date] by the EPA 
Hazardous Substance Superfund, and [`$________' or `________%' 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 

[[Page 62857]]
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.

    \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.
    \3\Note 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.
---------------------------------------------------------------------------

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;<SUP>4 or

    \4\This 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.
---------------------------------------------------------------------------

    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 ________% 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 $________ [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 ________'' or ``in Appendix ________''] 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

    \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.''
---------------------------------------------------------------------------

    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\

    \6\The 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.
---------------------------------------------------------------------------

    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.

    \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.
---------------------------------------------------------------------------

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\

    \8\This 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.
---------------------------------------------------------------------------

XIV. Parties Bound

    30. This Consent Order shall apply to and be binding upon EPA and 
upon Respondents and their [heirs,] 

[[Page 62858]]
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:--------------------------------------------------------------------

[Name]-----------------------------------------------------------------

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

Regional Administrator, Region ________--------------------------------

[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]-----------------------------------------------------------------

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

[Name]-----------------------------------------------------------------

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

[FR Doc. 95-29746 Filed 12-6-95; 8:45 am]
BILLING CODE 6560-50-P