62446 Federal Register / Vol. 60, No. 234 / Wednesday, December 6, 1995 / Notices

announces a proposed administrative

settlement pursuant to Section 122(h)(1)

of CERCLA, 42 U.S.C. § 9622(h)(1),

relating to the Slattery Gas Stove Site

(‘‘Site’’) in Brooklyn, Kings County,

New York. This Site is not on the

National Priorities List established

pursuant to Section 105(a) of CERCLA.

This notice is being published to inform

the public of the proposed settlement

and of the opportunity to comment.

The settlement, memorialized in an

Administrative Cost Recovery

Agreement (‘‘Agreement’’), is being

entered into by EPA and Datsun Realty

Corp.; J.B. Slattery & Bros., Inc.;

Abraham Leser; and Solomon Obstfeld

(collectively, the ‘‘Respondents’’).

Under the Agreement, the Respondents

shall pay EPA the sum of $95,000.00, in

partial reimbursement of EPA’s claim

for response costs incurred with respect

to the Site on or prior to November 3,

1994.

DATES: EPA will accept written

comments relating to the proposed

settlement on or before January 5, 1996.

ADDRESSES: Comments should be sent

to: Eric Schaaf, Chief, New York/

Caribbean Superfund Branch, Office of

Regional Counsel, U.S. Environmental

Protection Agency, 290 Broadway, 17th

Floor, New York, N.Y. 10007–1866.

Comments should reference the Slattery

Gas Stove Site and EPA Index No. II–

CERCLA–95–0208. For a copy of the

Agreement, contact the individual listed

below.

FOR FURTHER INFORMATION CONTACT: Juan

M. Fajardo, Assistant Regional Counsel,

New York/Caribbean Superfund Branch,

Office of Regional Counsel, U.S.

Environmental Protection Agency, 290

Broadway, 17th Floor, New York, New

York, 10007–1866, telephone: (212)

637–3179.

Dated: October 30, 1995.

William Muszynski,

Acting Regional Administrator.

[FR Doc. 95–29741 Filed 12–5–95; 8:45 am]

BILLING CODE 6560–50–P

[FRL–5340–5]

Superfund Program; Final Model

CERCLA Past Costs Consent Decree

and Administrative Agreement

AGENCY: Environmental Protection

Agency.

ACTION: Notice.

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 judiciallyapproved 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.
Federal Register / Vol. 60, No. 234 / Wednesday, December 6, 1995 / Notices 62447

1Follow local rules for caption format.

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.

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.

4 This definition is needed if the optional

paragraph on Notice of Obligations to Successorsin-Title is used. See infra p. 14.

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

Continued

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 ll. [Site Access] ll.

[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 [lllll] [lllll]

Division 1

Consent Decree

United States of America, [and the State of

lllll ] Plaintiff[s], v. [Defendants]

Defendants.

Civil Action No. lllllllllllll

Judge llllllllllllllllll

[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. § 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’’).

[[.ll The State of lllll (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. § 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].2

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. §§ 1331 and 1345 and 42

U.S.C. §§ 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.

§ 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.

§ 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.

§ 9507, compounded annually on

October 1 of each year, in accordance

with 42 U.S.C. § 9607(a).3

[[ll. ‘‘Owner Settling Defendants’’

shall mean [insert names].]] 4

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 lllll,] 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.5
62448 Federal Register / Vol. 60, No. 234 / Wednesday, December 6, 1995 / Notices

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 lllll’’ or ‘‘for the removal action

described in the action memorandum for the Site

dated lllll.’’ 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, Regionallyprepared 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.

6As 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 interestbearing 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.

[[ll. ‘‘Record of Decision’’ or

‘‘ROD’’ shall mean the EPA Record of

Decision relating to the [Site or ll

operable Unit at the Site] signed on

[insert date] by the Regional

Administrator, EPA Region ll, 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 lllll

Superfund site, encompassing

approximately ll 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:

lllll.’’]

[ll. ‘‘State’’ shall mean the State [or

Commonwealth] of llllll.]

[[ll. ‘‘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 lllll 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 $llll 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.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 llll, the EPA Region and

Site Spill ID Number llll [insert 4-

digit number, first 2 numbers represent

the Region (01–10), second 2 numbers

represent the Region’s Site/Spill

Identification number], and DOJ Case

Number llll. 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

llll 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].

[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 $llll 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 llll [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 llll, and DOJ Case

Number llll. 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.]

[[ll. Payment of Past Response

Costs to the State. Within 30 days of

entry of this Consent Decree, Settling

Defendants shall pay to the State

$llll, 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 lllllll 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, $llll per

violation per day that such payment is

late. [[ll. If Settling Defendants do not

comply with Section ll (Site Access),

Section ll (Access to Information), or

Section ll [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, $llll per

violation per day of such

noncompliance.]]

[Note: Escalating payment schedules may

be used in Paragraph 6(a) and in the optional
Federal Register / Vol. 60, No. 234 / Wednesday, December 6, 1995 / Notices 62449

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.

paragraph immediately above concerning

stipulated penalties for violations of nonpayment 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

llll [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 llll,

and DOJ Case Number llll. 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. § 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.

§ 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. §§ 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. §§ 9607 and 9613,

relating to Past Response Costs.7

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. § 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.

§ 9613(f)(2), for ‘‘matters addressed’’ in
62450 Federal Register / Vol. 60, No. 234 / Wednesday, December 6, 1995 / Notices

8 In exceptional situations, different coverage may

apply.

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.

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.

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.

this Consent Decree. The ‘‘matters

addressed’’ in this Consent Decree are

Past Response Costs.8

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.

[ll. Site Access] 9

[[ll. 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 ll (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.]

ll. 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. § 6927, and any other

applicable statutes or regulations.

ll. 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], lllll County,

State of lllll.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.

b. The obligations of each [Owner

Settling Defendant] with respect to the

provision of access under Section ll

(Site Access) [and the implementation

of institutional controls under

Paragraph ll] 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 ll (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 ll (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.]]

[ll. Access to Information 11]

[ll . 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.

[ll. 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]
Federal Register / Vol. 60, No. 234 / Wednesday, December 6, 1995 / Notices 62451

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.

under this Consent Decree to the extent

permitted by and in accordance with

Section 104(e)(7) of CERCLA, 42 U.S.C.

§ 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.

ll. 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 12

19. Until ll 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. §§ 9604(e)

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

Section 3007 of RCRA, 42 U.S.C.

§ 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 # llll), 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.
62452 Federal Register / Vol. 60, No. 234 / Wednesday, December 6, 1995 / Notices

13Substitute 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.

14See supra n. 13.

15 Include AA–OECA signature block only if he or

she has a concurrence role under Delegation No.

14–13–B.

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] 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.

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 llll day of

lllllll, 19ll.

lllllllllllllllllllll

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 llllll

Superfund Site.

For the United States of America

Date: llllllllllllllllll

lllllllllllllllllllll

[Name] Assistant Attorney General 14

Environment and Natural Resources

Division, U.S. Department of Justice,

Washington, D.C. 20530

[Name] United States Attorney [Address]

lllllllllllllllllllll

[Name] Attorney, Environmental

Enforcement Section, Environment and

Natural Resources Division, U.S.

Department of Justice, P.O. Box 7611,

Washington, DC 20044–7611

lllllllllllllllllllll

[Name] 15 Assistant Administrator for

Enforcement and Compliance Assurance,

U.S. Environmental Protection Agency,

401 M Street S.W., Washington, D.C.

20460

lllllllllllllllllllll

[Name] Regional Administrator, Region [

], U.S. Environmental Protection Agency,

[Address]

lllllllllllllllllllll

[Name] Assistant Regional Counsel, U.S.

Environmental Protection Agency,

[Address]

[[The undersigned party enters into this

Consent Decree in the matter of [insert case

name and civil action number], relating to

the lll Superfund Site.

For the State of [ ]

Date: llllllllllllllllll

lllllllllllllllllllll

[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 lllll Superfund Site.

For Defendant [ ]

Date: llllllllllllllllll

lllllllllllllllllllll

[Names and address of Defendant’s

signatories]

Agent Authorized to Accept Service on

Behalf of Above-signed Party:

Name: lllllllllllllllll

Title: llllllllllllllllll

Address: llllllllllllllll

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

ll. [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 lll

CERCLA Docket No. lll

Proceeding Under Section 122(h)(1) of

CERCLA 42 U.S.C. § 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. § 6922(h)(1), which authority
Federal Register / Vol. 60, No. 234 / Wednesday, December 6, 1995 / Notices 62453

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.

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 lll’’ or ‘‘for the removal action described

in the action memorandum for the Site dated

lll.’’ 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.

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 interestbearing 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.

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.

§ 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. § 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. § 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.]

[lll. The Regional Administrator

of EPA Region lll, 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.

§ 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.

§ 9507, compounded annually on

October 1 of each year, in accordance

with 42 U.S.C. § 9607(a).1

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.2

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 lll.’’]

k. ‘‘Site’’ shall mean the lll

Superfund site, encompassing

approximately lll 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 lll’’ or ‘‘designated by the

following property description:

lll.’’]

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 $lll 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.3

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

lll [insert 4-digit number, first 2
62454 Federal Register / Vol. 60, No. 234 / Wednesday, December 6, 1995 / Notices

4The 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.

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, $lll per violation per

day that such payment is late.

[[[Note: If the Agreement includes any nonpayment 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, $lll 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. § 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. § 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.

§ 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. § 9507, 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 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. §§ 9607 and 9613,

relating to Past Response Costs.4

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. § 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
Federal Register / Vol. 60, No. 234 / Wednesday, December 6, 1995 / Notices 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.

§§ 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 ll 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. §§ 9604(e)

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

Section 3007 of the Resource,

Conservation and Recovery Act, 42

U.S.C. § 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 llll; 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. § 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.
62456 Federal Register / Vol. 60, No. 234 / Wednesday, December 6, 1995 / Notices

ll. 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.]

[[ll. 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. § 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: lllllllllllllllllll

[Name]

Regional Administrator, Region ll

[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: lllllllllllllllllll

[Name]

[Date]

[FR Doc. 95–29745 Filed 12–5–95; 8:45 am]

BILLING CODE 6560–50–P

[FRL–5340–4]

National Pollutant Discharge

Elimination System (NPDES);

Preparation of Draft General Permit for

the States of Maine, Massachusetts,

and New Hampshire

AGENCY: Environmental Protection

Agency.

ACTION: Notice; Preparation of Draft

NPDES General Permits—MAG070000,

MEG070000, and NHG070000.

SUMMARY: The Regional Administrator

of the six states of New England is

issuing Notice of a Draft National

Pollutant Discharge Elimination System

(NPDES) General Permit for

construction dewatering facilities in

certain waters of the States of Maine,

Massachusetts, and New Hampshire.

This draft general NPDES Permit

establishes notice of intent (NOI)

requirements, effluent limitations,

standards, prohibitions and

management practices for the

construction dewatering discharges.

Owners and/or operators of facilities

discharging effluent from construction

dewatering facilities will be required to

submit to EPA, Region I, a notice of

intent (NOI) to be covered by the

appropriate general permit and will

receive a written notification from EPA

of permit coverage and authorization to

discharge under the general permit.

The draft permit is based on an

administrative record available for

public review at Environmental

Protection Agency, Region I, John F.

Kennedy Federal Building, CMA.

Boston, Massachusetts 02203.

The following FACT SHEET AND

SUPPLEMENTARY INFORMATION section sets

forth principal facts and the significant

factual, legal, and policy questions

considered in the development of the

draft permits.

DATES: For comment period: Interested

persons may submit comments on the

draft general permits as part of the

administrative record to the Regional

Administrator of the six states of New

England at the address given in the

proceeding SUMMARY section no later

than 30 days after the date of

publication of the draft general permit

in the Federal Register.

This general permit shall be effective

when issued and will expire five years

from the effective date.

For Further Information And Copies

of Draft General NPDES Permit:

Additional information concerning the

draft permit may be obtained between

the hours of 9:00 a.m. and 4:00 p.m.

Monday through Friday excluding

holidays from: Suprokash Sarker, Office

of Ecosystem Protection Massachusetts

State Program, Environmental

Protection Agency, J.F.Kennedy Federal

Building. Boston, Massachusetts 02203,

Telephone (617) 565–3573.

FACT SHEET AND SUPPLEMENTARY

INFORMATION

I. Introduction

The Regional Administrator of the six

states of New England is issuing draft

general permit for effluent discharges

from construction dewatering facilities

to certain waters of the States of Maine,

Massachusetts, and New Hampshire.

Appendix A contains the draft general

NPDES permit including Part II,

Standard Conditions.

II. Coverage of General Permits

Section 301(a) of the Clean Water Act

(the Act) provides that the discharge of

pollutants is unlawful except in

accordance with a National Pollutant

Discharge Elimination System (NPDES)

permit. Although such permits to date

have generally been issued to individual

discharges, EPA’s regulations authorize

the issuance of ‘‘general permits’’ to

categories of discharges. (See 40 CFR

§ 122.28 48 FR 14146, April 1, l983).

EPA may issue a single, general permit

to a category of point sources located

within the same geographic area whose

permits warrant similar pollutant

control measures.

The Director of an NPDES permit

program is authorized to issue a general

permit if there are a number of point

sources operating in a geographic area

that:

1. Involve the same or substantially

similar types of operations;

2. Discharge the same types of wastes;

3. Require the same effluent

limitations or operating conditions;

4. Require the same or similar

monitoring requirements; and

5. In the opinion of the Regional

Administrator, are more appropriately

controlled under a general permit than

under individual permits.

Violations of a condition of a general

permit constitutes a violation of the

Clean Water Act and subjects the

discharger to the penalties in Section

309 of the Act.

Any owner or operator authorized by

a general permit may be excluded from

coverage of a general permit by applying

for an individual permit. This request

may be made by submitting a NPDES

permit application together with reasons

supporting the request. The Director

may require any person authorized by a

general permit to apply for and obtain

an individual permit. Any interested

person may petition the Director to take