HomeMy WebLinkAbout1989 Resolution No. 053RESOLUTION NO. S3
SER IES OF 1989
RESOLUTION APPROVING SECOND AMENDED AND RESTATED ADMINISTRATIVE
ORDER ON CONSENT RELATING TO LOWRY LANDFILL SH~LLOW GROUNDWATER
AND SUBSURFACE LIQUIDS AND DEEP GROUNDWATER R.'::MEDIAL
INVESTIGATION/FEASIBILITY STUDY.
WHEREAS, the Environmental Protection Agency (EPA)
estimates that 71 mi llion gallons of liquid industrial wastes
containing hazardous substances, pollutants, or contaminants were
sent to Lowry Landfill for disposal; and
WHEREAS, all entities having dumped any wastes at Lowry
r.andf.ill were cited for cleanup costs of the hazardous wastes
regardless of what was dumped; and
WHEREAS, the Bi-City Wastewater Treatment Plant, along with
other Respondents, has been in negotiations with the EPA on a
feasibility study for such cleanup;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS :
Section 1 . ThP. Director of the Bi-City Wastewater
Tr eatment Plant is h,•reby authorized to enter into the SECOND
AMCND ED A1l0 RESTATED ,.DMINISTRATIVE ORDER ON CON SENT with
Environmental Protective Agency (EPA) agreeing that the Bi-City
Waste1·1ater Treatr.tent Plant, with other Respondents, wil 1 conduct
a Remedial Investigation (RI) and Feasibility Study (FS) for the
Lowry Landfill Shallow Ground-I-later and D~e p Ground-Water
Operable Units for the purpose o f evaluating the nature and
e xtent of the threat, if any, presented by the rel e ase or
t hreate~cd release cf hazardous substances or pollutants or
contar.tina nts from the waste media in these OUs and to evaluate
remedial alternatives in accordance with CERCLA and :.,:e subject
to a pprova l by EPA after consultation with the State of Colorado.
A co9y cf said Order on Cons ent is attached hereto. The original
agreement is hereby aff irmed as are the addition of members to
the op~rating group .
ADO PTED A!iD APPROVED the 16th day of October, 1989,
Patricia H. Crow, City Clerk
I, Patricia H. Crow, City Clerk for the City of Englewood,
Colorado, hereby certify the forego~ true copy ofc
Resolution No • ...53 ' Series of 1989. . YI . r
C<'. 4--, -I cf1.
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION VIII
IN THE MATTER OF:
LOWRY LhNDFILL SHALLOW GROUND-
WATER ANO SUBSURFACE LIQUIDS ANO
DEEP GROUNO-WA1 ZR
OPERABLE UNIT REMEDIAL
INVESTIGATION/FEASIBILITY
STUDY( IES)
Adolph Coors Co mpany;
Amax Research & Oevelopm~nt, In~.,
F/K/A Amax Extractive Research
& Dev e lopment, Inc.;
Asamera 011 (U.S.) Inc.;
Conoco Inc.;
Hewlett Packard Co mpany;
H0 ne yw e 11 Inc. ;
I nt ernational Busine ss Mac h ines
Corporat ion ;
Ci ty of LAkew ood ;
Little o n -Eng lewood Bi-Ci ty
Wastt~a ter Tr e atment Plant;
Metropoli tan UPnver Se wag e Disposa l
Oi,;t rict No. I;
Sundstrand Corporation ;
SynteY Chemicals, I nc .;
The Ga tes Rubber Co mp a ny; and
The S . W. Shat tuck Ch~mical Company,
Inc.;
Respondents.
PRO CEEDING UNDER SE CTIO NS 104(b) AND
12 2 (d)(J ) OF T~E CO MPREHENSI V~
ENVIRONMENTAL RESPQNSE , CO MPENSATI ON, AND
LIABILITY ACT OF 198 0, AS AMEND ED BY THE
SUPERFU ND A~EN OMENTS ANO REAUTHORIZ AT ION
ACT OF 1986, 42 U.S.C . §5 9604(b), 9622(d)( 3)
SECOND AMENDED
AND RESTATED
ADMINISTRATIVE ORDER
ON CONSENT
D0~ket No. CERCLA
VIII-8B-18
TABLE OF CONTENTS
I. JURISDICTION
n .
Ill;
IV.
v.
VI.
VII.
VIII.
IX.
x.
XI.
XII.
XIV.
xv.
XVI.
XVII.
XVIII.
XIX.
xx.
XXI.
XXII.
XXIII.
XXIV.
DEFINITIONS 2
NOTICE OF ACTION 6
STATEMENT OF PURPOSE 7
FINDINGS OF FACT . 8
CONCLUSIONS OF LAW 11
DETERMINATIONS 12
WORK TO BE PERFORMED 12
ADDITIONAL WORK 16
RESPONDENTS' CONTRACTOR 18
PROJECT COORDINATORS . 19
REPORTING ANO EXCHANGE OF DOCUMENTS 21
ACCESS AND SAMPLING 24
ADMISSIBILITY OF DATA 26
REIMBURSEMENT OF RESPONSE COSTS 27
FINANCIAL ASSUR ANCE, INSURANCE, AND INDEMNIFICATION 30
DELAYS IN PERFORMANCE /STIPULATED PENALTIES 33
FORCE MA.JEURE 39
DISPUTE RESOLUTION 40
OTHER CLAIMS 46
RESERVATION OF RIGHTS BY UNITED ST ATES AND STATE
OF COLORADO 47
RESERVATION OF RIGHTS AND DENIAL OF LIABILITY BY
RESPONDENTS 48
CONTRIBUTION PROTECTION
COVENANT NOT TO SUE
50
50
. '
XXV. COMPL I ANCE WITH OT~ER LAWS 51
XXVI. PUBLIC COMMENT 51
XXVII. EFFECTIVE DATE AND SUBSEQUENT MODIFICATION 53
XXVIII. TERMINATION AND SATISFACTIOH 54
xxr.x. PARTIES BOUND 55
XXX. MUNICIPALITY AND SPECIAL DISTRICT RESPONDENTS 56
XXXI. COUNTERPARTS 57
ADMINISTRATIVE ORDER ON CONSENT
I.
JURISDICTION
· 1. This Second Amended and Restated Administrative Order
on Consent (the "Order•) is issued pursuant to the authority
vested in the President of the United States by sections 104(b),
122(a), and 122(d)(3) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986
("CERCLA"), 42 U.S.C. §§ 9604(b), 9622(a), and 9622(d)(J). This
authority vas delegated to the Administrator of the United States
Environmental Protection Agency ("EPA") on January 23, 1987, by
Executive OrJer No. 12,580, 52 Fed. Reg. 2,923 ( 1987), and
further delegated to the Regional Administrators by EPA
Delegation No. 14-14-C on February 26, 1987.
2. Adolph Coors Compan,, a Colorado corporation; Am~x
Research & Development, Inc., a Delaware corporation, F/K/A Amax
Extractive Research & Development, Inc.; Asam e ra Oil (U.S.) Inc.,
a Montana cor poration; Conoco Inc., a Delaware corporation;
Hevlett Packard Company, a California corporation; Honeywell
Inc., a Minnesota corporation; International Business Machines
Corporation, a Nev York corporation; City of Lakevood , a
political subdivision of the State of Colorado; Littleton-
Englevood Bi-City Wastewater Treatment Plant, a joint venture of
the Cities of Littleton and Englewood, which are political
subdivisions of the State of r.olorado; Metropolitan Denver Sewage
Disposal Dietrict No, 1, a political subdivision of the State of
Colorado; Sundstrand Corporation, a Delaware corporation; Syntex
Chemicals, Inc., a Delaware corporation; The Gates Rubber
Company, a Colorado corporation; and The S. W. Shattuck Chemical
Company, Inc., a Colorado corporation, ( the "Respondents") agree
to undertake all actions required by the terms and conditions of
this Order. The Respondents consent to and agree not to contest
EPA jurisdiction to issue or enforce this Order.
3, Respondents reserve their rights and deny liability as
set forth in Se ction XXII (Reservation of Rights and Denial of
Liability by Respondents) of this Order.
II.
DEFINITIONS
For purposes of this Order, the following terms shall have
the meanings set forth below.
1. The term "Contractor" means an y person, including
contractors o r subcontractors, retained by the Resp o ndents to
perform any obligations required under this Order .
2 . The term "Fund" shall refer to the Hazardou~ Substances
Superfund established in sections 221-223 of CERCLA, 42 U.S .C .
§§ 9631-96 :::3.
3 . The term "Non-Signatory Participant" means any third
party who Respondents c ertify as having contributed to the costs
of the Work or other activi tie s to be performed under this Ord~r.
4 . The terms "Party" and "Parties" refers to the
Respond~nts ftnd the United States Environmental Protection ~~ency
("EPA") individually or collectively.
S. The term "Shallow Ground-Water OU" means the Shallow
Ground-Water and Subsurface Liquids Operable Unit. The Shallow
Ground-Water OU includes all subsurface liquids in the upper
(weathered) Dawson aquifer and the alluvium . The areal extent
includes the ent i re area where contaminated shallow ground water
may have or could migrate within the shallow ground-water
aquifer. The Shallow Ground-Water OU addresses the following
media:
a. Shallow Ground Water -The shallow ground water is
defined to be all ground water within the alluvium and weathered
bedrock in the upper Dawson formation . The weathered bedrock is
that portion of the Daw s on Fo r ma tion, nearest to the ground
surface, that has had an incr ease in its ability to transmit
ground water du e to the a ct ion of physical and chemical
processes. This portion of the Daw son Formation is more similar
to the overlying allu vial aquifer than the underlying unweathered
Dawson with respect to it s ability to transmit ground water .
b . Waste Pit Liquids --The waste pit liquids are
defined to be liquid s that are within the wa s te pits .
c. Subsurface Leachate and Intiltratio n -Subsurface
leachate is defined to be all liquids that emanate fr om the waste
pits, waste pit solids, and waste pit re f use that ar e s ubsurface .
Infiltration is water that enters into the ground through th e
soil surface.
d. Saturated Subsurface Solids -saturated subsurface
solids include soils below the water table, saturated waste pit
solids, saturated soils adjacent to waste pits, and saturated
rel ~se below the shallow ground water table.
6 . The term "Deep Ground-Water OU" means the Deep Grou11j-
Water Operable Unit. The Deep Ground-Water OU . includes all
ground water below the Shallow Ground-Water, as defined in
paragraph S.a ., above, to the top of the Pierre Shale underlying
the Laramie Fox-Hills Formation. The areal extent includes the
entire area where contaminated Deep Ground-Water may have or
could migrate within the deep ground-water aquifers.
7. The term "Site" means the Lowry Landfill site, which
was listed on the CERCLA National Priorities Li5t ("NPL") on
September 21,. 1984, 49 Fed. Reg. 37,070 (198 ,:).
8. The term "State" means the State of Colorado, by and
through the Colorado Department of Health.
9. The term "Work" means the activities required by the
Con c eptual Work Plan dated September 22, 1989 ("CWP"I attached as
Exhibit A and any EPA-approved work plans or planning documents
submitted pursuant to the CWP. The Work includes the following
items:
a . Performance of all activities required to complete
the Shallow Ground-Water OU and Deep Ground-Water OU Remedial
Investigation ("RI") and Feasibility Study(iesl ("FS(s)") in
accordance with CERCLA, the National Contingency Plan, 40 C.F.R.
!i!i 300.1-300.84, as hereinafter amended or modified (the "NCP"I,
and all appropriate EPA guidelines, policies, and procedures.
b. Construction and maintenance of a command post at
the Site.
c. Management of specified wastes generated at the
Site.
d. Collection of Phase II RI data in accordance with
the CWP.
The term "Work" does not include additional work as described in
Section IX (Additional Work).
10. The term "Additional Work Within the Scope of the OUs"
means any of the following activities:
a. additional site characterization in the Shalla•,
Ground-Water OU determined by EPA to be necessary followi 11g
completion of Phase II or Phase III of the FS or the
Comprehensive Data Evaluation; or
b. Stage 3 treatability testing determined by EPA to
be necessary that is in addition to one Stage 3 Pilot-Sr.a l e
Treatability Test.
11. The term "Additional Work Within the Scope of the Deep
Ground-Water OU" means any of the following activities :
a. any site-specific field work in the Den v er
formation below th<> uppermost 200 .teet of the formation; or
b. any additional site-specific field work in the
unweathered portion of the Dawson formation or the uppermost 200
feet of the Denver formation determined under the CWP to be
necessary subsequent to completion of Phase II or Phase III of
the FS or the Compreh~nsive Data Evaluation.
III .
NOTICE OF ACTION
1. On June 24, 1988, EPA notified Respondents pursuant to
section 122(e) of CERCLA, 42 u.s.c. § 9622(e), and offered them
the opport unity to perform the Shallow Ground Water OU RI/FS
Work. The moratorium provided for in section 122(e) of CERCLA,
42 u.s.c. § 9622(E), applied only to the commencement ot the
Shallow Ground-Water OU RI/FS. The moratorium did not apply to
command post construction, waste management, collection ot Phase
II RI data, or any other studies or investigations authorized
under section 104(b) of CERCLA, 42 U.S.C. § 9604(b). With
respe~t to the Deep Ground Water OU RI/FS, EPA has determined
that use of the notice procedur es set forth in section 122(e) of
CERCLA, 42 U.S.C. § 9622(e) is no t practicable, is not in the
public interest, will not expedite completion of the RI/FS at the
Site, and will not mi nimiz e litigation. The Respondents waive
the use of tne notice procedures as set forth in section 122(e),
42 U.S.C. § 9622(e) with respect to the Deep Ground Water OU
RI/FS .
2. EPA has notified the State o f this action pursuant to
the requirements of section 121(f) of CERCLA, 42 U.S.C.
§ 9212(f). The State is partic ipati ng in the negotiation,
execution, and implementaticn of t ~is Order in a consultative
capacity in acr •rdance with sections 104(cl(2l, I04(dl( I l (State
6
11anag4m~nt A8si~tance Cooperative A9r~~ment), and 121(t) ot
CERCLA, 42 U.S.C. II 9604(c)(2), 9604(d)(1 ), 9621(t). EPA is the
lead agency tor coordinating, overseeing, and enforcing the
response action required by this Order.
IV.
STATEMENT OF PURPOSE
1. This Order and CWP replaces the Amended and Restated
Administrative Order dated Oecember 7, 1988, and the Conceptual
Work Plan dated September 28, 1988, Yith errata as modified
effective December 7, 1988, as of the effective date of this
.Order. The Amended and Restated Administrative Order ddted
December 7, 1988, and the Conceptual Work lar, dated September
28, 1988, Yith errata as modified effective December 7, 1988,
remain in effect Yith respect to the Work or other activities
performed or required to be performed during the period from
December 7, 1988, until the effective date of this Order, except
that the time period alloYed for any Tier I or Tier II
deliverable shall be tolled ftom the date this order is initially
signed by Respondents to the effective date of th i s Order or the
date the Order is rescinded Yithout becoming effect i ve.
2. In entering into this Order, the Respondents and EPA
agree that the Respondents Yill conduct an RI and FS(s) for the
LoYry Landfill ShalloY Ground-Water and Deep Ground-Water OUs for
the purpose of evaluatin9 the nature an~ extent of the threat, if
any, presented by the relea s e or threatened release of hazardous
e
e
substances or pollutants or r.ontaminants from the vaste media in
these OUs and to evaluate remedial alternatives in accordance
vith CERCLA . The Respondents also agree to construct and
maintain a comman~ pc~t at the Site, to m~nage specified vaAtes
generated at the Site, and to collect Phase II data in accordance
vith the CWP.
3. The activities conducted pursuant to this Order,
including any Additional Work, are subjoct to approval by EPA
after consultation vith the State, shall employ sound scientific,
engineering, and construction practices, and shall be consistent
vith CERCLA, the NCP, and all appropriate EPA guidelines,
_pol i cies, and procedures, and, to the extent not inconsistent
with CERCLA and the NCP, State law.
V.
FINDINGS OF FACT
For purposes of this Order, EPA has made the f o llowing
fa ctual determinations.
I . Description of th e Facility
a. The facility which i s the subject of this Consent
Order is the Low ry Landfill, loc ated at Section 6, T4S, R65W,
6th P.M., at the intersectio n of East Quincy Avenue and Gun Club
Road in Arapahoe County, Colorado.
b. In 1964, the United States conditionally deeded
the property upon vhich the Lowry Landfill is located to the City
and County of Denver ("Denver") for us e as a municipal sanitary
8
landfill. Denver has owned Lowry Landfill from 1964 until the
present.
c. From 1967 thr~ugh 1980, Denver operated the Lowry
Landfill as an industrial &nd muricipal waste landfill . During
this period, EPA eetimates that 71 million gallons of liquid
indust rial wastes containing hazardous substances, pollutants, or
contaminants were sent to L~wry Landfill for disposal. These
mate r ials were placed in approximately 65 unlined pits which were
subsequently covered with municipal refuse, SLil, and tires.
From 1967 through the present, most of the metropolitan Denver
area's municipal refuse has been deposited at the .Site. Denver
operated the site from 1967 through 1980 , Waste Management of
Colorado, Inc. has operated the Site from 1980 until the present
under contract with Den ver. In addition to the liquid and
municipal wastes and tires, the Lowry Landfill also received
significant quantities of solid and hazardous wastes containing
hazardous substances, pollutants, or contaminants . EPA asserts
the Respondents, amono others, sent hazardous substance s ,
pollutants, or contami nan ts to Lowry Landfill for disposal .
d . Dep t h to ground water varies dramatically
throughout the Site because of the accumulation of 25 to 60 feet
of municipal refuse on top of the original lann surface . From
mid-Section 6 to the confluence of the unnamed creek with Murphy
Creek approximately 1 mile to the north, the dept h to ground
water is approximately 1 to 3 feet . EFA has determined that the
shallow ground water is directly connected both with the surface
9
tlovs above it and vit.h th,;, veathered bedrock aqu lfer ( Dav Bon
Format !.on) beneath it. The ground vater in the weathered Dawson
Format1on has been found to be conta~inated. Investigations in
t~~ unweathered Dawson Formation and the Denver Formation, which
is below -the Dawson Formation, are ongoing to determine the
presence or absence of contamination and the potential for future
contamination.
e . Results of the Phases I and II RI/FS show t~at the
hydraulic gradient between the shallow and deep ground water is
dovnward indicatinc the potential for the migration of shallow
ground water to deep ground water.
2. Description c~ Release or Substantial Threat of Release
into the Environment
a. The wastes disposed at the Lowry Landfill
contained numerous hazardous substances, pollutants, or
contaminants . To date, many of the hazardous substances disposed
at Lowry Landfill have been detected in the shallow ground water
and subsurface liquids .
b . EPA has d ete rm ined pr eli minarily based on its
investigation at the Lowry Landfill that the waste pits are a
major source of contaminated ground water at the Site.
c. Due to the pot e ntial interconnection between
shallow and deep ground water, contaminants in the shallow ground
wat e r may enter the deep ground water.
3. Qualifications of Respondents
a . Respondents have provided EPA with information
concerning their technical, managerial, and financial
10
capRht lJ.ti,.,. t .o P"rform the Shl\llov Ground-Water and De"p Ground-
water oua.
b. EPA has arranged tor a qualified person to assist
in overseeing and reviewing the activities required by this
Order. The Respondents have agreed to reimburse thl! Fund tor
response costs incurred in connection vith this Consent Order as
provided in Section XV (Reimbursement of Response Costs).
VI.
CONCLUSIONS OF LAW
For purposes of this Order and based on the preceding
.Findings of Fact, EPA ha3 made the following Conclusions of Lav.
1. The Lovry Landfill is a "facility• as defined in
section 101(9) of CERCLA, 42 u.s.c. § 9601(9).
2. "Hazardous substances• as defined in section 101(14)(Dl
of CERCLA, 42 U.S .C § 9601(14l(Dl, ha ve been deposited, s'tored,
disposed of, placed, or located at the Lovry Landfill Site .
3. Respondent a re "per s ons" as def i ned in sectio n 101(21)
of tERCLA, 42 U.S .C. § 9601(21 ).
4. The Respondents arranged for dis posal or treatment, or
arranged vith a transporter f or transport for disposal or
treatment of hazarrtous substanc~s ovned or possessed by
Respondents at Lowry Landfill within the meaning of section
107(a)(3) of CERCLA, 42 U.S .C. § 9607(al(3).
5. EPA has determined that the presence at, and t h~ past,
present, and potential future migration from the Lowry Landfill
11
-ot h~zardous substances or pollutants or contaminants constitute
an actual or a substantial threat of a "release• as defined in
section 101(22) o f CERCLA, 42 u.s.c. § 9601(22).
6. The Respondents are "responsible parties• within the
meaning of sections 104 and 122 of CERCLA, 42 u.s.c. 88 9604,
9622.
7. No Respondent or Contractor shall be subject to a
lesser standard of liability, receive preferential treatment, or
in any other way, direct or indirect, benefit from their
relationship as a response action contractor with respect to
Lowry Landfill,
VII.
DETERMINATIONS
Based on the Findings of Fact and Conclusions of Law set
forth above, EPA has determined that:
1. The actions required by this Order are n~cessary to
protect the public health or welfare or the environment, are in
the public interest, are consistent with CERCLA and the NCP, will
expedite effective remedial action, and will minimize litigation.
2. The Respondents are qualified to perform properly and
promptly the actions set forth in this Order.
VIII.
WORK TO BE PERFORMED
1. Based on the foregoing Findings of Fact and Con •;lusions
12
ot Lav, the Respondents are ordered and agree to conduct the
Work, the Additional Work Within the Scope of the OUs, and the
Additional Work Within the Scope of the Deep Ground-Water OU, as
set forth in Section IX (Additional Work), in accordance ~ith the
CWP attached as Exhibit A and any EPA-approved, after
consultation with the State, work plans and planning documents
submitted pursuant to the CWP. The CWP and any EPA-approved work
plans and planning documents submitted pursuant to the CWP are
hereby incorporated into this Order. The Work, Additional Work
Within the Scope of the OUs, and Additional Work Within the Scope
of the Deep Ground-Water OU that Respondents agree to ccnduct
. under this Order includes without limitation performance of all
activities determined by EPA to be necessary to prepare an RI and
FS(s) and Record(s) of Decision for the Shallow Ground-Water and
Deep Ground-Water OUs, consistent with this Order, the CWP, and
any EPA-approved work plans o r planning documents submitted
pursuant to the CWP, except for Additional Work Within the Scope
of the OUs in excess of an aggregate amount of $800,000.00 and
except for Additional Work Within the Scope of the Deep Ground-
Water OU in excess of an aggregate amount of $300,000.00.
2. In performing the Work, Additional Work Within th~
Scope of the OUs, or Addition~! Work Within the Scope of the Deep
Ground-Water OU the Respond e nts are not required to perform the
following activities:
a . locate definit iv~ly each and every waste pit or
isolated pe r ched ground-water body at the Site;
1 3
b, perform significant investigations more properly
included in the Landfill Solids OU or other OUs;
c. remove, manage, or dispose of tires located at the
3ite or relocate significant numbers of tires located at the
Site;
d . characterize, investigate, manage, treat, or
dispose of 1) wastes generated by others at the Site, 2)
contaminated surface water, 3) landfill solids, 4) surfac~ soils,
5) sediments, 6) air, or 7) landfill gases, except as explicitly
required in this Order, the CWP, or any EPA-approved work plan or
planning document submitted pursuant to the CWP; and
e. perform site-specific field investigations below
the base of the Denver formation.
3 . EPA in consultation with the State shall prepare all
necessary community relations p lans, the endangerment assessment
("EA"), Remed ial Action Objectives ("RAOs"), and Proposed Plan s
required for the Shallow Gr ound-Water and Deep Ground-Water OU RI
and FS(s). EPA's EA and RAOs shall be released with the RI
report for public comment. Respo ndents and EPA, in consultation
with the State, shall confer and exchange comments regarding the
content of the EA, RAOs , and Proposed Plans prior to their
relea s e for pu bli c comment in an att~m pt to resol ve any
differences. Respondents shall i nc0 rporate the requirement s of
t he EA and RAOs into the FS analysis and reports. The
Respondents s hall not engage in detailed comment on EPA's EA,
RAOs, or Proposed Plans in the RI and FS(s) reports. Re s pondents
14
may provide their c~mments to EPA separately or submit them
during the public comment period provided for the RI and FS(s)
reports. EPA's decisions concerning the EA , RAOa, and Proposed
Plan~ are not subject to the formal Dispute Resolution provisions
of this Order (Section XIX).
4 . Upon discovery of the occurre nce of any event that may
constitute an emergency situat ion or an immediate endangerment to
public health, welfare, or the environment, Respondents shall
within 24 hours notify EPA's and the State's Project Coordinator
verbally. The Respondents shall thereafter provide written
notice to EPA within 7 calendar days of occ urrence or discovery
of the event. The written notic e shall include a detailed
description of the e vent, including the time a nd the location at
which the event occurred or was d iscovered , any known causes of
the event, and any actions taken, or to be t aken, to stop or
mit i gate the event.
5. Nothing in this Section shall limit EPA's authority to
order a halt to the Work or other act i vitie s required by this
OrdP.r, or to limit any authority of EPA o r the State t o conduct
respons~ actions concerning thP Work or other acti v ities required
by this Order, and to seek r e imbursement for any response actions
conducted when EPA determines in con s ultation with th e State that
an imm i nP.nt and substan t ial e ndangermen t to public health ,
welfare, or the en v ironment may exis t. The State reserv~s its
right to respond under applicable state or fed e ral law t o a ny
threat to the publ i c health, safet y, o r the e nv ironmen t.
15
6. For purposes of this Order, time shall be computed in
accordance with Rule 6 of the Federal Rules of Civil Procedure.
IX.
ADDITIONAL WORK
1 . If EPA after consultation with the State determines
that Additional Work Within the Scope of the OUs must be
performed, EPA shall request in writing that the Respondents
perform the Additional Work Within the Scope of the OUs and shall
specify the basis and reasons for EPA's determination that the
Additional Work Within the Scope of the OUs is necessary. Within
14 calendar days after receipt of EPA's written determination
that Additional Work Within the Scope of the OUs is necessary,
the Respondents shall notify EPA in writing whether or not they
i ntend to undertake such Additional Work . Additional Work Within
the Scope of the OUs that Respond e nts object to performing shall
be performed by Respond e nts up to an aggregate amount of
$800 ,0 00 .00. Fa i lure to per form Ad d it ional Wo r k Within the Scope
o f the OUs up to a n aggregate amount of $800,000.00 shall
constitute a v iolat i o n of this Order. Resp o ndents may elect not
to perform Additional Work Within the Scope of the OUs t hat
exceeds an aggregate amount of $800,000.00 with o ut violating this
Order .
2. If EPA after consulta tion with th e State d e termines
that Additional Work Within th e Scope of t he Deep Ground-Water OU
must be performed , EP A shal l make a r equest to Respondeots usiog
16
the •~me procedures as set forth in paragraph 1, sentences 1 and
2, of this Section IX for Additional Work Within the Scopa of the
oua. Additional Work Within the Scope of the Deep Ground-Water
OU that Respondents object to performing shall be pertormed by
Respondents up to an aggregate amount of $300,000,00 , Failure to
perform Additional Work Within the Scope of the Deep Ground-
water OU up to an aggregate amount of $300,000 .00 shall
constitute a violation of this Order. Respondents may elect not
to perform Additional Work Within the Scope of the Deep Ground-
Water OU that exceeds an aggregate amount of $300,000.00 without
violating this Order .
3, If Respondents determine that additional work is
necessary to accomplish the objectives of the Shallow Ground-
water and Deep Ground-Water OU RI and FS(s) and EPA determines
after consultation with the State that the work is not necessary,
EPA shall allow Respondents to perform such activities if these
activities do not present an environmental or human health
threat, or interfere with facility operations to such a degree as
to terminate facility acce ss , or c au se a significant delay in
completion of EPA's selection o f a remedy for the Shallow Ground-
water and Deep Ground-Water OU RI and FS(s ). The cost of any
additional work performed voluntarily by Respondents shall not be
included in the $800,000.00 aggregate amount of Additional Work
Within the Scope of the OUs or the $300,000 .00 aggregate amount
of Additional Work Within the Sc o pe of the Deep Ground-Water OU
that Respondents may be required to perform under this Order.
1 7
4, If EPA dP.terminP.s after consultation vith the State
that additional vork is required at the Site that is not
necessary to accomplish the objectives of the Shallov Ground-
Water or Deep Ground-Water OUs, EPA may after consultation vith
the State, in its discretion, provide an opportunity for the
Respondents to perform the additional vork. A refusal by t~e
Respondents to undertake additional vork that is not necessary to
accomplish the objectives of the Shallov Ground-Water or Deep
Ground-Water OUs shall not constitute a violation of this Order .
The cost of any additional vork performed voluntarily by
Respondents that is not necessary to accomplish the objec tives of
the Shallov Ground-Water or Deep Ground-Water OUs shall not be
included in the $800,000.00 aggregate amount of Additio~al Work
Within the Scope of the OUs or the $300,000.00 aggregate amount
of Additional Work Within the Scope of the Deep Ground-Water OU
that Responden ts may be requir e d to · perform under this Order.
5. Any Additional Work Within the Scope of the OUs or any
other additional work performed by the Respondents shall be
performed in a manner consistent with this Order, the CWP , and
any EPA -a pproved work plans and planning documents submitt~d
pursuant to the CWP.
x.
RESPONDENTS' CONTRACTOR
1. The Respondents shall provide a copy of this Order to
each Contractor. The Respondents shall be responsible for
18
ensuring that any Contractor complies with the terms of this
Order.
2, The Contractor shall be deemed to have a contractual
relationship with the Respondents within the meaning of section
107(b)(J) of CERCLA, 42 U.S .C. 8 9607(b)(J). Therefore, the
Respondents shall not assert any defense based on section
107(b)(J) of CERCLA, 42 U.S.C, S 9607(b)(J), with respect to any
nonperformance or any costs or damages caused by an act or
omission of any Contractor.
XI ,
PROJECT COORDINATORS
1. On or before the effective date of this Order, EPA, the
State, and the Respondents shall each designate a Project
Coordinator and an Alternate Project Coordinator, and shall
notify each other in writing of the name, title, affiliation,
address, and telephone number of the Project Coordinators and
Alternates. Each Pro ject Co ordinator shall be re sponsible for
oversee ing the implementation of this Order. To the maximum
extent possible, commun icati o ns among the Respondents, the State,
and EPA, and all documents, reports, approvals, and other
correspondencP. concerning the Work or other activities performed
pursuant to the terms and conditions of th is Order, shall be
directed through the Project Coordinators . If the Pr oject
Coordinator is unavailabl e , such inf ormation shall bP. directed
through the Alternate ProjP.ct Coordinator. During implementation
19
of the Work an~ the rP.quirP.ments of this OrdP.r, the Project
Coordinators shall, whenever possible, attempt in good faith to
resolve disputes informally through discussion of the issues.
2. EPA, the State, and the Respondents shall each have the
right to change their respective Pro j ect Coordinators and
Alt~rnates. Such a change shall be accomplished by notifying the
other Party in writing at least 14 calendar days prior to the
effective date of the replacement.
3. Respondents' Project Coordinator shall be responsible
for directing the day-to -day activities of t he Respondents and
Respondents' Contractor in performance of the Work and other
. activities required by this Order.
4. The EPA Project Coordinator shall have the authority
vested in the Remedial Project Manager and On-Scene Coord i nator
under the NCP. This authority includes, but is not limited to,
the power to initiate action not inconsist e nt wi th the NCP, to
terminate actions inconsistent with the NCP, to c omplete response
activities required by t his Order wh i ch a re not inc on si s t ent with
the NCP, and to c onduct any r~s ponne ac tion nP.ces s ary in rP.sponse
to an imminent and s ubst a nti a l en d ang e rment t o pu bl i c heal t h,
welfare, o r the en v ir o nment .
S. The abs e nc e o f t he EPA o r St at~ Proj~ct Cco rdina to rs
from the Si te shall nc . be c a u s e for s toppa ge o f th e Wo rk o r
o ther activities to be performed purs uan t to th i s Or de r.
20
XII.
REPORTING AND EXCHANGE OF DOCUMENTS
1. All documents, including but not limited to, plans,
reports, specifications, correspondence, and notices, submitted
pursuant to or required by the terms of this Order, the CWP, or
any EPA-approved work plans or planning documents submitted
pursuant to the CWP shall be sent by Respondents by hand delivery
or by certified mail, return receipt req uested, to the following
listed pers ~n s, or such other address as the Parties or the State
may hereinafter designate in writing.
a. Documents to be sent to EPA shall be sent in
. triplicate to:
EPA Proj e ct Coordinator
Lowry Landfill RPM
Superfund Enforcement Section (BHWM-SR)
U.S. En v ironmP.ntal Protection Agency
999 18th Street, Suite 500
Denver, Co lorado 80202-2405
with an additional copy to be sent to EPA's contractor, to be
designated by EPA .
to:
b . Documents t o be s e nt t o Resp o ndents sh a ll be sent
Lowry Landfill Project Manager
Harding Lawson Associates
1301 Pennsylvan i a Avenue
Denv ~r, Co l o rad o 8020 2
and
21
to :
Lowry Coa 11 tion
Technical Subcommittee
c/o Jam~s C. Thompson
Director of Environmental Affairs
Denver Refinery
North American Refining
Conoco Inc.
5801 Brighton Boulevard
Commerce City , Colorado 80022
c. Documents to be sent to the State s hall be sent
Lowry Landfill Stat e Project Officer
Colorado Department of Health
Hazardous Materials and
Waste Management Di ision
4210 East 11th Avenue
Denver, Colorado 80220
2. The Respondents may, if they desire, assert a business
confidentiality claim covering part or all of any information
submitted to EPA o r the State pursuant to the terms of this
Order, the CWP, or any EP A-approved work plans or planning
documents submitted pursuant to the CWP, provided such claim is
allowed by section 104(e)(7) of CERCLA, 42 U.S .C . § 9604(eH7)
and State law, Colo. Rev. St t. §§ 24-72-201 to 206 ( 1982 & Supp.
1987). A confidential business i n formation ("CBI") claim may be
asserted in the mann er described by 40 C.F.R. § 2.203(b).
Informat ion covered by a confidentiality claim will be disclos ed
by EPA only to the extent and by means of th e procedur~s set
forth at 40 C.F .R. Part 2 , 41 Fed. Reg. 36,902 ( 1976) (amended at
43 Feel. Reg . 40,000 (1978), 50 Fed. RE?g. 51,~54 (1985)) and by
the State only as authorized by State law, Colo. Rev. Stat. ~~
24-72-201 to 206 ( 1982 & Supp . 1987 l . If no such claim
22
accnmpanif!s the inf-,rm .. ~,,,,, when it is received by EPA, EFA or
the State may make it ava l ,a ble to the public without further
notice to the Respondents. ~ny assertion of a CBI claim shall be
substantiated at the ti~e the ~laim is made . The Respondents
specifically agree not to assert con~identi~lity claims with
respect to any data related to site conditions, sampling, or
monitoring .
3. The Respondents agree that they shall preserve, during
the pendency of this Order and for a period of 6 years from the
date of termination of this Order, all records, documents, or
information of whatever kind relating to the performance of the
. Wor~, other activ ities required by this Order, or to compliance
with the terms of this Order, in its possession or in the
possession of its employees, agents, accountants, Contractors, or
attorneys, notwithstanding any document retention policy. After
this 6-year period expires the Respondents shall notify EPA and
the State at lea st 30 cal enda r days prior to destruction of such
records, documents, and in f o rm ation. Upon reque st by EPA at any
time prior to the destruction of such records, doc uments, and
information, Respondents shall provide to EPA original o r legible
copies of all non-pri vileged records, documents, or information
requested. Nothing in this Section XII shall constitute a waiver
by Respondents of attorney-client or a t torney wo rk product
privileges.
23
XIII.
ACCESS AND SAMPLING
1, To the extent access to or easements over property
owned or possessed by third parties is required to perform the
Work or other activities required by this Order, Respondents
shall obtain or use their best efforts to obtain a reasonable
written right of access or easement not later than 15 calendar
days after the effective date of this Order. In the event
easements are obtained, such easements shall be recorded with the
Arapahoe County Recorder.
2. Within 15 calendar days following the effective date of
. this Order, Respondents shall inform EPA in writing of the status
of its efforts to obtain access and easements (the "Access Status
Report"). Copies of all access and easement agreements shall be
attached to the Access Status Report . If Respondents have been
unable to obtain all necessary access or easements, Respondents
shall explain in the Access Report all efforts they have taken to
obtain access or easements. In the event Respondents are unable
to obtain access or easements or if access or easements are
revoked, EPA may take any action it deems necessary to obtain
access or easements . Fai lure of Respondents to obtain access
after use of best efforts shall r esult in the Work schedule, f o r
Work that cannot be performed with out access, be i ng ext ended by a
number of days equal to the additional day s required ta obtain
access.
3. The Respondents hereby consent to ove rsight by EPA and
24
the St~tg r~presentatives of the Work or any other obligations
under this Order at any reasonable time during the performance of
the Work or any other obligations under this Order. Oversight
activities may include, but are not limited to, inspecting non-
privileged records, operating logs, and contracts, reviewing
conduct of Respondents in carrying out the terms of the Order,
conducting tests, inspections, and sampling as EPA deems
necessary, using a cam~ra, sound recording equipment, or other
documentary-type equipment, and verifying the data and
information collected by Respondents . The Respondents will
provide EPA or the State with split samples at any timg upon
. request by EPA or the State.
4. If Respondents obtain any samples from property owned
by a third party, Respondents shall provide the third party with
a receipt describing the samples obtained, and an opportunity to
request and obtain split samples . The Respondents shall also
promptly provide such third party with a copy of the results o f
any analysis made. Respondents shall submit written evidence t o
EPA demonstrating that receipts were provided, split samples were
offered and provided as requested, and that a copy of recu!ts of
analysis were furnished promptly .
5. Nothing herein limits or affects EPA's or the State's
right of entry pursuant to othe r a g reements or applicable law,
regulation, or permit .
25
ADMISSIBILITY OF DATA
1. Respondents shall review all data gathered, generated,
or evaluated by EPA during Phase I or Phase II of the RI/FS to
determine whether the Respondents have any objections to the
authenticity of the data. Respondents shall submit to EPA
simultaneously with the Initial Data Evaluation Report, which is
identified in the CWP, a report that identifies any objections to
the authenticity of any Phase I or Phase II data . If any
objections to authenticity of any data are identified, the
Respondents shall explain their objections, desr.ribe the
. acceptable uses of the data, if any, and identify any limitations
to the use of the data. After such report is pr~pared and
submitted to EPA, EPA may request Respondents to stipulate to the
authenticity of the Phase I and Fhase II data to be relied on for
decision making in the Shallow Ground-Water and Deep Ground-Water
OUs and wai ve any objection to the introduction of such data
based on hearsay . The Respondents shall negotiate in good faith
with EF~ for a period of time not to exceed 30 calendar days and
if an ~gr~ement is reach ed, enter into a written stipulation and
waiver . If after 30 calendar days EPA and Respondents do not
agree to a written stipulation and waiver covering the data,
Respondents waive their rights to object to any effort on th~
part of EPA to collect or require the collection o f data to
replace the data that was not stipulated to or fo r which hearsay
objections were not waived.
26
2. Respond~nts hereby waive any evidenti~ry objection, to
the authenticity of any data gathered, generated, or evaluated by
EPA, the State, or Respondents in the performance or oversight of
the Work that has been verified according to the quality
assurance/quality control ("QA/QC") procedures required by the
Order, the CWP, or any EPA-approved work plans or planning
documents submitted pursuant to the CWP. The Respondents alsn
waive any objection, including in any proceeding initiated by the
State, to the introduction of such data based on hearsay.
3. For purposes of this Section, the phrase "evidentiary
objections to authenticity" includes, without limitation,
. objection based on the failure to offer testimony or evidence
concerning collection and sampling procedures, chemical or
physical analyses, chain of custody, field and laboratory QA/QC
procedures, and object ion based on the f a ilure to offer any
sponsoring witnesses, including samp lers , chemists, and their
assistants, and other persons in the c hain of custody .
xv.
REIMBURSEMENT OF RESPONSE COSTS
The Respondents agr e co r e imbur s e th P Fund for any
response costs no t in~,ns is tent with CERCLA and the NCP incurred
after the effective date of this Order by the United States in
connection with this Order.
2. On a fiscal year basis, EPA shall submit an accounting
to the Respondents of all respon s e co st s inc urred by the Unit ed
27
·-,.
States in connection with this Order. Within 60 calendar days
after receipt of each such accounting, th e Respondents shall
remit to EPA a certified or cashier's check for the full amount
of all uncontested costs. EPA's accounting of response costs
will consist of EPA's standard cost documentation pack~ge.
3. Payment for all response costs incurred in connection
with this Order shall be made payable to the order of the
"Hazardous Substances Superfund" and transmitted to the following
address:
EPA Region 8
Attn: Superfund Accounting
P.O. Box 360859M
Pittsburgh, Pennsylvania 15251
or such other address as EPA may hereinafter designate in
writing. Payments should be identified a s "Reimbursement Cos ts--
Lowry Landfill Shallow Ground-Water and Deep Ground-Water OUs,
CERCLA VIII-88-18, (Colorado)." A copy of the transmittal letter
and the reimbursement check shall be provided concurrently to the
EPA Project Coordinator.
Alternati vely, payments to EPA may be made by wire tran ~fer
to EPA Account Number 910-9088 at the Mellon Bank in Pittsburgh,
Pennsylvania. All such payments shall include the
wire transfer number ("ABA Number") of the Mellon Bank on the
wire transfer form as follows:
ABA I: 04 3000261 /Mellon Bank Pittsburgh
EPA-Super fund
The transferor shall include the transferring bank 's nam~, ABA
Number, date of transfer, and amount transferred on the wire
28
transfer fo :·111. This information, along with a transmittal letter
specifically identifying the payment as "Reimbursement of Costs--
Lovry Landfill Sha.llov Ground-Water and Deep Ground-Water ous,
CERCLA VIII-88-18, (Colorado)•, shall be forwarded to the EPA
Project Coordinator and to Frank MacFadden, Financial Management
Officer, U.S. Environmental Protection Agency, Region VIII,
Office of Po licy ~nd Management, 999 18th Street, Suite 500,
Denver, Colorado 80202-2405.
4, If Respondents conclude that EPA has made an accounting
error or has included response costs that are inconsistent with
CERCLA or the NCP, they may contest payment of such cost s set
. forth in the accounting by providing written notice to EPA. The
written notice of contested costs must specifically identify each
contested cost and explain the basis tor Resp ondents objection .
EPA and the Respco1de nts shall then ha ve 14 calendar days to
resolve their differences. This dispute resolution procedure
shall be in lieu of the formal Dispute Resolution (Section XIX)
provisions of this Order. Respondents bear the burden of pr oving
that an accounting error has be e n made o r the costs are
inconsistent with CE RCL A or the NCP. I f agrP.ement cannot be
reached within the 14-day period, EPA reserves its rights to
bring an action agains t Respondents pursuant to section 107 of
CERCLA, 42 u .s.c. § 9607, to recoup all re sponse costs as set
forth in the accounting, not reimbursed by the Respondents,
including interest or treble damages, or to obta i n pe nalti es
pursuant to section 109 of CERCLA, 42 u .s.c . § 9609 . EPA a lso
29
r~serves its rights to recover any other past and future response
costs under section 107 of CERCLA, 42 u.s.c. 8 9607, incurred by
the United State s in connection with response activities
conducted pursuant to CERCLA ill connection with the facility.
5. If payment is not received within 60 days of receipt of
an accounting, interest shall accrue on the declining princi pal
balance at the 52-week U.S. Treasury MK Bill rate at which
Superfund monies are invested. Interest shall be compounded at
the beginning of each fiscal year .
6. Notwithslanding the fiscal year accounting provided
above, EPA shall, to the extent possible, cooperate in providing
_R espondents more frequent information concerning the response
costs incurred or to be incurred under this Order.
XVI.
FINANCIAL ASSURANCE, INSURANCE, AN D INDEMNIFICATION
1. The Respondents shall establish and maintain a
financial instrument or trust account fund ed sufficiently to
perform the Work and any other obligations required under this
Order, including a margin for cost overruns.
2. The Respondents shall prepare and submit to EPA
quarterly beginning January 15, 199 0 and thereafter on or before
the 15th calendar day of each successive calendar year quarter, a
budget report that identifies expenditures and cost overruns that
occurred during the prior quarter ~nd expenditur es and cost
overruns projected for the upcoming quarter. Budget reports must
30
demonstrate the relationship between funds available and the Work
and other obligations required under this Order for the upcoming
quarter.
3. Within 15 calendar days after the effective date of
this Order, the Respondents shall fund the financial instrument
or trust account t1 uf !:iciently to perform the Work and other
activities required ~nder this Order projected for the period
beginning with the effective date of t~.,. Order through March 31,
1990. Beginning January 15, 1990, and on or .before the 15th
calendar day of each calendar year quarter thereafter, the
Respondents shall fund the financ .'.a l instrument or trust account
sufficiently to pe :form the Work and other activities required
under this Order projected for the succeeding calendar year
quarter.
4. The Respondents shall r eview the financial instrument
or trust account periodically to determine whether it is funded
sufficiently to perform the Work and other obligations under this
Order for the upr.oming qu u rter. If at any time the net worth of
the financial in,trument or trust account is insufficient to
perform the Work and other obligations under the Order for the
upcoming quarter, Respondents shall prov ide written notice to EPA
within 7 calendar days after the net worth of the financial
instrument or trust account b~come • insufficient. The written
notice shall describe why the financial instrument or trust
account is funded insufficiently and explain what actions ha ve
been -,r will be taken to fund the financial instrument c · trust
31
account adequately.
5. Respondents shall require any Contractor to obtain and
maintain in force during the pendency of this Order an
occurrence-form policy or policies of insurance providing
coverage for all liability arising out of the acts or omission~
of the Contractor in amounts not less than those listej belo•,:
a. Workers' Compensation and Employer's LJability
Insurance in accordance with the State law.
b. Automobile Liability Insurance f _or bodily injury
and property damage liability in an amount cf $1,000,000.00 per
OCCU l r t.:. '.1C "
c . Comprehensive General Liability Insurance,
with ltmits of not less than $2 million per claim/aggregate.
6. Respondents sha ~l require any Contractor to provide
Respondents with copies of c he policy or policies evidencing the
coverage obtained by each Contractor. At least 7 calendar days
prior to any Work, Additional W~rk, o r other obligations under
t his Order being conducted by each Contractor, Respondents shall
certify to EPA that the requir ed insurance has been obtained by
that Contractor, and provide EPA with copies of the policy or
policies evidencing the coverage obtained by each Contractor.
7 . Neither EPA nor the State shall be l ia ble for any
injurv or damages to persons or property resulting from acts or
omissions of the Respondent s or the ir Contractor in implementing
the requirements of this Order , the CWP, or any EPA-approved work
plans or planning documents submitt~d pursuant lo this Order,
~xcept aR EPA m~y be liable under the FPderal Tort Cl~ims Act
("FTCA"). Neither EPA nor the State shall be considered a party
to any contract entered into by Respondents for purpose6 of
imp~ementing this Or der.
8. The Re 6pondents agree to indemnify and save ar,d hold
harmless the UnJted St at es, the State of Colorado, and their
agencies, departme 11 :.s, agents, and t!mployees from any and all
claims or causes of action arising from or on account of acts or
omissions of the Respondents, their contractors, agents,
successors, or assigns, in carrying out activities pursuant to
this Order, ~xcept for claims in contribution against the United
. States, tne State of Colorado, and their ~epartments, agencies,
agents, and employees based :,pon thsir '.liability as owners,
operators, transporters, or generators under section 107 of
CERCLA, 42 u.s .c. § 9607, and exc e pt as EPA may be liable under
the FTCA.
XVII .
DELAYS IN PERFORMANCE/STIPULATED PENALTIES
1. The Responden t s shall be liable for and shall pay the
sums s et forth below as stipulated penalties for each calendar
day during which they fail to complete in an adequate and timely
manner the Work or other activities required by this Order that
are speclfied below, exc,•pt a s provided in Section XVIII ( Forc e
Majeure). As used in this Section, "adequate" means substantial
compliance with the terms of this Order, the CWP, and any EPA-
))
FS(s) Phase I and Phase II Raport~. and the ARAR's Evaluation(s)
Numbers 2 and J. Due to the interactions of the various steps in
the RI/FS process, minor delays in submission of these non-
critical path documents are not anticipated to result in delay of
any critical path deliverable or the Final DU FS Report(s).
Therefore, the Parties have agreed, that although the project
schedules may indicate that certain documents are due at an
earli r date, stipulated penalties will not begin to accrue on
Tier II deliverables until d e lays in submission of these
d~~ments result in these documents falling on the critical path
such that the overall schedu,e is d elayed in any respect .
7. Compliance with the terms and condition s of this Order
shall include completion of any activity or compliance with any
requirement under this Order in an adequate manner within the
time frames established under this Order, the CWP, and any EPA-
approved work plans or planning documents submitted pursuant to
the CWP. EPA may, in its discretion, impose a lesser or no
penalty ~or minor violations . Any reduction in the stipulated
penalty imposed s hall be solely a t EPA's discretion and shall not
be subject to dispute ~esolution.
8. Stipulated penalties begi n to accrue, without notice
from EPA, on the day aft e r performanr.e is due if Responde11ts fail
to submit any tier of delive rables when due. For any tier of
deliverables determined by EPA to be inadequate under th is Order,
stipulated penalties shall begin to accrue upon receipt by
Respondents of written noti ce of inadequacy of the deli ve rable
36
the terms of this Order shall be defined as the failure to submit -
to EPA timely or adequate drAft or final versions of each of t he
following deliverables or to perform timely or adequately each of
the following activities:
a. Monthly Status Reports,
b. Field Work Memoranda,
c. Transmittal of Validated Data,
d. Administrativ~ Record Documents,
e. Performance of Waste Management Acti v i ti~s
According to Approved Site Mana s ement Plan,
f. Performance o f Additional Work Within the Sc ope of
the OUs or of Additional Work Within the Scope of
the Deep Ground-Water OU (Section IX),
g. Quarterly Budget Reports (Section XVI).
5. Stipulated penalties shall be calcu lated according t ~
the schedule listed below.
Calendar Days After Adequate
and Timely Compliance Required Amount/Day
TIER I NONCOMPLIANCE PENALTY SCllEDULE
1-10 days
11-20 days
21 or more days
$3,000.00
$6,000.00
$12,000.00
TIER II NONCOMPLIANCE PENALTY SCHEDULE
1-10 days
11-20 days
21 or more days
$1,000 .00
$2,500.00
$5,000.00
TIER III NONCOMP LIANCE PENALTY SCHEDU LE
1-10 days
11-20 days
2 1 or more days
$500.00
$1,000.00
$2,50 0.00
6. Based on t he schedule evaluations performed during t he
development of this Order, some of the Ti?r II deliverables are
not curren t ly envisioned l o be on the critical pa th for the
project. Specifically, these include the OU RI Report, the OU
35
approved work plans or planning documents submitted pursuant to
the CWP. The schedules for performance of activities required by
this Order or for submission of deliverables is set t orth in this
Order or the CWP.
2. For purposes of this Order, Tier I Noncompliance with
the terms of this Order shall be defined a, the failure to submit
to EPA timely or adequate draft or final versions of each of the
following l~sted deliverables:
a. Media Interaction Report,
b. Fate and Transport Mechanisms (Deep a .d Shallow
Ground Water),
c . Additional Site Characterization Summary,
d. NaturP. and Extent of Contamination in Waste Pits
Liquids, Shallow Ground Water and Subsurface
Liquids Outside the Wa ste r t s, a nd Deep Ground
Water,
e. General <:haracteri 1:t i r :r, c,{ t :\e Study Area,
f. Ground-Water Char~cterist,c s and Interactions
Between the Shallow and D~ep Ground Water,
g. Well Inventory and Groun d -W ater Use Evaluations,
h. OU FS Report(s).
3. For purpo ses o f this Orde :, Tier II Noncompliance with
the terms of this Ord e r shall be defined as the failure to submit
to EPA timely or adequate draft o r final versions of each of the
following deliverable s:
4.
a . OU RI R~port,
b. OU FS(s) Phase I,
c . OU FS(s) Phase 2 ,
d. ARAR's Evaluation Number 1,
e. ARAR's Evaluation(s) Number 2 ,
f . ARAR's Evaluationls) Number 3,
g. Init i al Data Evaluation Report,
h . Treatability Data Needs Report,
1. Stage 1 Treatability Report,
j. St age 2 Treatability Re port,
k. Stage 3 Treatability Report.
For purposes of this Order, Tier III Noncompliance with
34
from EPA. Penalties will continue to accrue t~rough the final
day ot the correction of the noncompliance. Nothing herein shall
preclude the simult aneous accrual of separate penalties tor
separate violations of this Order . Payment of stipulated
penalties shall be due to EPA within 30 calendar days of demand.
9, Sti pulated penalties shall be made payable to the order
of the "Hazardous Substances Superfund" and transmitted to the
following address:
EPA Region 8
Superfund Accounting
P.O . Box 360859 M
Pittsburgh, Pennsylvania 1525 I
or such other address as EPA may hereinafter designate in
writing. Payment must be made by certified or cashier's check
and identified as "Stipulated Penalties --Lowry Landfill Shallow
Ground-Water and Deep Ground -Water OUs, CERCLA VIII-88-18,
(Colorado)". A copy of the transmittal letter and stipulated
penalties check shall be sent concurrently to the EPA Proj e ct
Coordinator.
Alternativel y , pa ym e nt s t o EPA ma y be mad e by wi re transfer
~o EPA A~count Number 910 -9088 at th ~ Me llon Bank in P~t tsbu r gh,
Pennsyl vania. All su c h payments shall include the wire transfer
number ("ABA Number") of th e Me ll on Ban k on th e wire transfer
form as follows :
ABA I: 043 0002 6 1/~ellon Bank Pittsburgh
EPA-Superfunu
The transferor shall include the transferring bank's name, ABA
Number, date of transfer, and amount transferred on the wir~
37
tra"~f-r form. Thin inform~tion, along with a tr~nsmittal lPttar
specifically identifying the payment as "Stipulated Penalties--
Lowry Landfill Shallow Ground-Water and Deep Ground -Water OUs,
CERCLA VIII-88-18, (Colorado)•, shal.\ be forwarded to the EP .~
Project Coordinator and to Frank MacFadden, Financial Management
Ot t l c e,, U.S. Environmental Protection Agency, Region VIII,
Office ot Policy and Management, 99 9 18t h Street, Suite 500,
Den ver , Colorado 80202-2405.
10 . I f payment of stipulated penalties is not received
v1 \hin 30 calendar days of receipt of demand, interest shall
accru e on the declining principal balance a t the 52-week u.s .
. Treasury MK Bill rate at vhich Superfund monies are invested.
Interest shall be compounded at the beginning of each fi sca l
year.
1 I. Payment of stipulated penalties does not alter the
Respondents' obligation to complete performance under this Order.
The stipulated penalties set forth in th is Section XVII shall not
preclude EPA or the State from pursuing any other remedies or
sanctions that may be available.
12. A failure of a Contractor or any other agent of the
Respondents to perform the Work o r an y other obligations under
this Order shall not excuse the Respondents fr om meeting t he
r equi rements of this Order.
38
XVIII.
FORCE HAJEURE
1. The Respondents shall perform all Work and activities
required by this Order, unless performance is delayed by an event
or occurrence that constitutes a "Force Hajeure".
2. For purposes of this Order, a "Force Hajeure" is an
event or occurrence, which delays or prevents performance ~f the
Work or a ny ot:-ligat!on under this Order, that is beyond the
control of the Respondents.
3. Force Hajeure events shall not include increased cost
of p~rformance, changed econom~c circumstances, normal
. precipitation events, the failure of a Contractor to perform tne
Work or any activities required under this Order, or delays
caused by the Dispute Resolution procedures of this Order.
4. When circumsta rc es arise that may constitute a Force
Majeure event that may delay the completion of any phase of the
Work or any activities required under this Order, the Respondents
shall promptly noti fy EPA's and the State 's Project Coordinators
n~al ly within 48 hours after the Respondents discover that a
Force Majeure event has occurred or is likely to occur.
Thereafter, Respondents shall, within 7 calendar days of oral
notification to EFA, notify EPA in writing of the cause of delay,
the anticipated length o f the delay, th e measures taken and to be
taken to prevent or minimize the delay, a proposed timetable by
which the Respondents intend to implement those measures, and a
proposed project schedule mod i fication, if nece ssa ry . Failure to
39
notify EPA in accordance with this Section either orally or in
writing of any event for which Force Majeure is claimed shall
constitute a waiver of any claim of Force Maj e ure.
s. The Respondents shall be r r t he burden of prov ing that
any failure to perform the Won ; or t o con,p ly u ith the
requiremen.G o f this Ord r Li; ,·,~ t o Force Majeure . The
Respondents shall also have h•' uJrden of proving that the
proposed corrective action tir,,etabl.-, and schedule modifications
are appropriate. If EPA, after consultation with the State ,
agrees that a delay or failure of performance is or was
attributable to a Force Maje~re the project schedules may be
modified . Any schedule modification due to a Force Majeure shall
be written and shall be incorpora ted into this Order. Any such
extension does not alter the schedule for performance or
completion of other t a sk s re~uired by this Order, the CWP, or any
EPA-approved work plans or planning documents submitted pursuant
to the CWP, unl e ss su c h schedules are specifically modified and
incorporated into th is Order .
XIX.
DISPUTE RESOLUTI ON
1. Except as otherwise s pecifically provided in this
Order, these Dispute Resolution proc edu r es shall apply to all
disputes between the ~espondents and EP~ w!th respect t o this
Order. If Responden l o bject to any EPA decision subject t o the
formal Dispute Resolution provisions of this Section XIX,
40
Respondents shall not later than 7 ca · .nda r days following
rece i pt of EfA'• decision notify EPA ' t ractor of the Region
VIII Hazardous Waste Management Divi~ion (the "Director") of its
objections. Respondents' notice of objections shall be written,
shall define the dispute, shall state t~~ basis o f Respondents'
objections, and shall be sent by cert ~f d mail, return receipt
requested, to all Parties and the Sta t.e . EPA, the State, and the
Respondents shall meet promptly and wo rk in good faith for a
period of 7 calendar days in an effort to reach a mutually
agreeable resolution of the dispute. If agreement is not reached
within the 7-day pe riod, EPA after consultation with the State
shall provide a wr itten statement of its d e cision signed by the
Direct or. If the Director does not render a decision within
5 calendar days foll owing the co nclusion of the 7-day nego tiation
period, the accrual of s t ipulated penalties related t o the
dispute shall be tolled until the Director's deci sion is
rendered .
2. Due to the p otential f or c ommunicat i on problems, the
large number of Parties wit h potentially conflict i ng interests,
and the complex technical issues associated with the additional
data needs provided for in the CWP , the Additional Work Within
the Scope of the OUs, and Additional Wo rk Within the Scope of
the Deep Ground-Water OU (Section IX), EP A has determined that
mediat i on may be helpful to r e solve such potential dispute s . The
use of mediation in this Order is justified only because of t he
special circumstance of this Order. If Respondents object to any
41
EPA decision concerning additional data needs provided tor in the
CWP, concerning Additional Work Within the Scope of the OUs, or
Additional Work Within the Scopa of the Deep Ground-Water OU
(Section IX), Respondents shall not later than 7 calendar days
following receipt of the EPA's decision signed by the Director
notify EPA and the State of its intent to request the appointment
of a neutral mediator to aid in resolution of the dispute.
Additionally, Respondents may invoke mediation not more than 2
times for any other decision, subject to dispute resolution, to
which Respondents object.
3. Selection and conduct of the mediator shall be governed
. by the following protocols :
a. Mediators have bee n selected by the Resp o ndents
and EPA, in consultation with the State. A mediat o r may be
replaced at any time at the request of Respondents or EPA in
consultation with the State upon notice to the other part y .Within
60 calendar days foll o wing such notice, Respondents and EPA in
consultation with the State shall submit to each other lists of
at least three neutral persons nominated to serve as mediators .
All listed persons not rejected within 7 calendar days following
recP.ipt of such list shall be deemed to be acceptable mediators.
If all nominated persons are rejec ~ed or if an existing mediator
must be replaced, the nomination process shall be repeated until
at least two med i ators acce~table to the Respondents and EPA in
consultation with the State are identified. Mediation nomination
lists shall set forth the name, business, affiliation, address,
42
tel•phone number, and a short statement of qualifications.
b. Non -binding neutral mediation may extend for up to
14 calendar days. EP A s hall pay its fair share of the costs of
mediation. Age11 tl as an d procedures shall be as EPA and the
Respondents agree, but sugge stions by the mediator shall be given
'full consideration in g ud faith . The mediator may meet or talk
vith EPA or the aespond e nt s separately, in the mediator's sole
discretion . It ls the i!l tent of EPA, the State, and the
Respondents that me d i ation be flexible and informal, in ord er to
facilitate the con s ensual resolution of any dispute to the
greatest extent possible. The State may attend and participate
i n any joint mediation sessions.
c. EPA or the Respondents may vithdrav from mediation
at any time, but only after partic ipating in at least one meeting
or conference convened by the mediator . The right to withdraw
from mediation shall be con s ide r ed a last resort and should be
pvercised nnly on a good faith belief that mediation will serve
r,o useful purpose. Withdrawing Parties remain bound by protocol
provisions on confidentiality .
d. Meetings or con f erencP.s with the medi3tor shall be
treated as confidential. State ments made by any person during
any such meet i ngs .or conference~ shall be deemed to ha ve been
made in compromise negotiations within the meaning of Rule ~08 of
the Federal Rules of Evidence and applicable state rules o f
evidence, and shall not be offered i u evidence in any proceeding
by any person. The mediator will be disqualified a n a witness,
43
conBultant, or expert in any pending or future action relating to
the subject matter of the mediation, including those between
persons not party to the mediation. Failure to comply with the
mediation confidentiality requirement is a basis for termination
ot or exclusion from mediation .
e. The mediator shall make no written findings or
recommendations. Mediation sessions shall not be recorded
verbatim and no formal minutes or transcripts of sessions shall
be maintaineci.
f. lf agreement is not reached within the mediation
period the Responu~nts may raise the dispute to the Region VIII
. Regional Administrator ( the "RA").
4. Not later than 7 calendar days following completion of
mediation, it the dispute is not resolved, or receipt o! the
Director's decision, which ever is later, the Respondents shall
notify the RA and the State of their objections to EPA's
decision . Respondents' notice of objections shAll be written,
shall define the dispute, shall state the basis of Respondents'
objections, and shal! be sent by certified mail, return receipt
rP.quested, to all Parties and the State . The RA shall review the
objections submitted and shall render a written decision in
consultation with the State Director of the Office of Health and
Environmental Pr otection as expeditiously as possible . The RA
may request an informal, private consultation w~th the mediator
prior t c rendering a written decision. The RA's decision shall
be final. If the RA c,es not render a decision within 5 calendar
44
days following receipt of Respondents notice of objections, the
accrual of stipulated penalties related to the dispute shall be
tolled until the RA's decision is rendered .
S. Implementation of these Dispute Resolution procedures
shall not provide a basis for delay ot any schedule tor
activities required in this Order unless EPA agrees in writing to
a schedule exten ~•on. If Respondents do not prevail in the
Dispute Resolution process, Stipulated Penalties, as provided tor
in this Order, shall accrue throughout the term of the dispute
resolution procedures. If the Respondents prevail or if an
agreement is reached in the Dispute Resolution process, no
. stipulated penalties shall apply to any delays caused solely by
the Dispute Resolution process.
6, Pre-enforcement review of the Work, Additional Work
Within the Scope of the OUs, Additional Wor k Within the Scope of
the Deep Ground-Water OU, or a ny part of this Order shall be
prec luded as provided under CERCLA.
7. The RA shall have authority to suspend these Dispute
Resolution procedures during any period i n which immediate action
is required to prevent an e mergency.
8. Any agreemen t resol v ing any dispute s hall be in
writing, signed and dat ed by the rartJes, and shall be
incorporated , as appropriat~. into this Order, the CWP, and any
EPA-approved work plans and planning documents .
45
xx.
OTHER CLAIMS
1. Nothing herein is intended to release any claims,
cause 5 ot action, or dema nds in law or equity against any person,
partnership, corporation, federal or state agency or de~artment,
or municipality not a signatory to this Order for any li ~bility
it may have arising out of or relating in any way to the
generation, storage, treatment, handling, transportation,
disposal, or release of any hazardous waste , so_id waste,
pollutant, contaminant, or hazardous substanc e found at, taken
to, or taken from the Lowry Landfill Site. Nothing contained in
this Order shall attect any right, claim, inte~est, or cause of
action of any Party he r eto or the State with respect to third
parties .
2. The Respondents waive all claims or demands, direct or
indirect, for compensa tion or payment under sections 106(b)(2),
111 , and 112 of CERCLA, 42 U.S.C. !i!i 9606(b)(2i, 9611, 9612,
against the Fund, or for any past costs or for any cost arising
out of any activity performed or expenses incurred in complying
with this Order.
3, This Order does not c on s titute any decision on
preauthorizati~n of funds un~er se~tion 11 l(a)(2) of CERCLA,
42 u.s.c. !i 9611(a)(2),
46
XXI .
RESERVATION OF RIGHTS BY THE
UNITED STATES AND THE STATE OF COLORADO
1. Notwithstanding compliance with the terms of this
Order, Respondents are not released from any administrative,
civil, or criminal, cause of action, ox demand in law or equity,
including without limitation any natural resource damage claim,
or any liability Respondents may have arising out of or relating
in any way to the generation, storage, treatment, recycling,
handling, transportation, release, or disposal of any hazardous
substance, hazardou~ waste, solid waste, pollutant, or
contaminant found at, taken to, or taken from the Lowry Landfill
. Site.
2. EPA retains the right and nothing herein shall affect
the right of the State, to conduct other inve stigations and
activities at t he Lowry Landfill Site.
3 . EPA reserves the right to take any and all enforcement
or response actions pursuant to CE RCLA or other available legal
authority, including without l imitation the right to seek
mon et ary penalties pursuant to section 109 of CERCLA, 42 u.s.c .
§ 9609, for any willful vi olation, or fa i lure , or refusal to
comply with this Order or to seek i njunctive relief pursuant to
section 106(a), 42 u.s.c. § 9606(a). In addition, if the
Respondents f a il to remedy nonc omp l iance with this Order in a
timely manner, EPA may, after consultation with the State and
notif ication to the R~spo nden ts , ini t iate federally fund ed
response actions and pursue CO$t recovery, including treble
47
damages, under section 107(a ) and (c)(J) o f CERCLA, 42 u.s.c .
§ 9607(a) and (c)(J).
4. Except as provided in Section XXIV (Covenant Not to
Sue), nothing herein shall be construed to release the
Respondents from any liability for failure of the Respondents to
perform the Work or other obligations under this Order in
accordance with the Order, the CWP, and any EPA-approved work
plans or planning documents . The Parties further expre3sly
recognize that this Order and the successful completion and
approval of the Work or any other obligations under this Order
does not represent satisfaction, waiver, reJease, or covenant not
. to sue o~ any claim of the United States or the State against
the Re npondents relating to the Lowry Landfill Site, except as
specifical :y provi ded i n Sect i on XXI V (Covenant No t to Sue) of
this Order .
5. The Parties agree that the State by signi ng this Order
or by participating in accordance with this Order has not waived
any legal or equita ble claims under state, federal, o r common
law , including bu t not l i mited to sections 107 and 310 of CERCLA,
42 U.S.C. §§ 9607, 9659, and the rig ht of the State t 0 assert
such claims shall not be affected by t he State's part i cipatio n
pursuant to or by signature on this Order .
1.
XXII .
RESERVATION Of RIGHTS AND
DENIAL OF LIABlLI"rY BY RESP OND ENTS
Respondents deny ary and all legal or equitable
48
liability under any federal or state statute, regulation,
ordinance, or common la w for any response costs, damages, or
other liability caused by or arising out of conditions at or
arising from the Site . Notwithstanding Respondents c onsent to
jurisdiction (Sect ion I), Respondents do not admit the Findings
of Fact (Section V), Co nc lusions of Lav (Section VI),
Determinations (Section VII ), or any other allegations contained
in this Order.
2. Respondents expressly reserve any l e gal and equitable
rights and defenses that they may have raised to the e n1 ,y of
this Order or vh i ch might be ra ised in any other proceedi ng
brought by EPA or any other person, except as specifically waived
in this Order.
3. Respondents expressly reser ve any r ight s of
contribution and indemnity that they ha ve against any person ,
except as specifically waived in this Order. Nothing in th is
Order is intended to create any private causes of action in favor
of any person not a Respondent.
4 . Nu payment made by Respondents to plan for and
implement the Work or a ny other acti vities requ ired under this
Order, other than paymen t of stipulated penalties (Section XVII),
shall be deemed to be a fin~, penalty, or monetary sanction.
S. Heither this Order nor any jud·.l·> n t e nte red to enforce
this Order shall be used in any judici~l or administrative
proceeding in any manner against Respondents for a ny purpose,
including but not l imi ted to any attempt to preclude litigat ion
49
of an issue by assertion of the doctrine of collateral estoppal,
except in a proceeding to enforce the terms of this Order or any
judgment. Nothing in ttis Order shall preclude, however, any
Respondent from u sing this Order or the fact of its entry against
any person for contribution or for recovery of costs expended in
complying with this Order, except as specifically waived in this
Order.
XXIII.
CONTRIBUTION PROTECTION
Pursuant to section 11 ~1fl(2) of CERCLA, 42 u.s.c.
§ 9613(f)(2), Respondents ard Non-Signatory Participants shall
not be liable to other pe i •n ns or entities for contribution
claims regarding the Work or other activiti e, required by this
Order.
XXIV.
COVENANT NOT TO SUE
1. EPA covenants not to s ue, issue any or ~e r, or take any
other ad•inistrative action against, or assert any claim against
Respondents or Non-Signatory Participants for the Work or other
activities pP.rformed by Respondents pursuant to this Order. This
covenant shall become eff e ctive for each Respondent and Non-
Signatory Part i cipant upon com p letion of each of the following
evP.nts:
a. terminat l on of this Order, in full compliance
so
pursuant to ~ection XXVIII (Termination and Satisfaction), and
b. certification by the Respondents that such
Respondent and Non-Signatory Participant has paid its share of
the costs of the Work and other activities to be performed under
this Order in accordance with the funding agreement among the
Respondents and the Non-Signatory Participants.
XXV.
COMPLIANCE WITh OTH ER LAWS
All actions carried out by the Resp o ndents pursuant to this
Order shall be done in compliance with all applicable federal,
state, and local laws and regulations. The Respondents shall Je
responsible for o btaining all federal, state, or local
permits which are necessary for the performance of the Work, but
shall not be required to obtain federal, s t ate, or local pP.rmits
for the portion of the Work o r other activities conducted under
this Order that ar e conducted enti rely on-site as providP.d in
section 121(e) of CERCLA, 42 u.s.c . § 9621(e).
XXVI.
PUBLIC COMMEN T
I. EPA provided for publ ic comment o n the AdministrativP.
Order on Consent and Conceptual Work Plan dated September 28,
1988. EPA, in consultation with the State , revi eved nd
responded to the comments received, and r ep laced the
Administrative Ord er and Conceptua l Wor~ Plan d ted September 28,
51
1908, with the Amended and ReEtated Administrative Order and
Conc~ptual Work Plan dated September 28, 1988, with errata,
effective as of December 7, 1988 .
2. Following execution of this Order, EPA will provide for
a 30-day public comment period on the amended portions of the
Order and CWP. Copies of any of the comments received by EPA
shall be provided to Respondents within 14 calendar days after
the close of the comment period. Following review of the public
comments received, EPA, in consultation with the State, shall
either:
a. determine that t~is Order should be made effective
in its present form and notify the Respondents and the State in
writing that the Order is immediately effective; or
b . determine that modification of this Order is
necessa ry and notify the Respondents in writing as to the nature
of all changes deemed to be necessary by EPA.
3. If modifications are required, Respondents shall decide
not later than 14 calendar days followi~g receipt of the notice
of modifications whether to agree to the modifications. If the
Respondents agree to the modifications, the Ord~r shall be so
modified . In the event that the Responde nts do not agree to
modifications required by EPA as a result of public comment, EPA,
after consultation with the State, may rescind this Order. In
such an event, EPA a nd the State reserve all rights to tak e such
actions as they deem necessary including, but not limited to, the
right to conduct the Work, or any portion thereof, or any other
52
obligation under this Order, and to seek reimbursement pursuant
to section 107 of CERCLA, 42 U.S .C. § 9607, from the Respondents
for the costs thereof.
4. EPA's decision to make the Order effective or require
modifications is not subject to the Dispute Resolution (Section
XIX) procedures provided in this Order.
XXVII.
EFFECTIVE DATE AND SUBSEQUENT MODIFICATION
I , In the event that EPA, after consultation with the
State, determines that this Order should be made effecti ve in its
present form following Public Comment, the effective date of this
Order shall be the date on which the Respondents receive written
no tice from EPA that this Order is effective. In the event that
modification of this Order is necessary following Public Comment,
the effective date of such modified Order s hall be the date on
which it is signed by EPA. EPA shall promptly notify Respondents
of its signing of the modified Order .
2. This Order may be amended by mu t ual a greement of EPA,
in consultation with the State, and t he Respondents . Such
amendments shall be in writing and shall be effective as of the
date the amendment is signed by EPA. This Order, the CWP, and
any EPA-approved work plans or planning docum e nts s ubmitted
pu,,uant to the CWP constitute the e ntire agreement between EP A
and the Respondents concerning the Shallow Ground-Water and Deep
Ground-Water OUs for the Lowry Landfill Si te. No informal
53
advice, guidanc~, sugge~tions, or comments by EPA or the State
shall be construed as relieving the Responden ts of their
obligations under this Order.
3 . Any work plans or planning documents required to be
submitted by Respondents are upon approval by EPA incorporated
into this Order and CWP. Any noncompliance with such EPA-
approved work plans and planning documents may be considered to
be a violation of this Order .
4. If the State does not agree to any modifications agreed
to by EPA and the Respondents, the State may withdraw its
signature and its participatio n in implementation of this Order,
and the Order will be modified to reflect this withdrawal .
xxvi r I .
TERMIN AT ION AND SATISFACTION
This Order shall terminat e when th e Respondents
demonstrat e in writing to the satisfaction of EPA, in
cons u ltation with the State, and certify that all activities
required under this Order, including any additional work, ha ve
been performed (the "Certifica t ion"), and EPA, after con s ultat i on
with the State, has approved the Certification.
2 . The Certification sha l l be signed by a r e sponsible
54
official representing each ReRpondent and shall conform
substantially to the following attestation:
I certify t.hat the information contained in or
accompanying this Certification is true, accurate, and
complete. As to the identified portion(s) of this
Certification for which I cannot personally verify its
truth and accuracy, I certify as the company offici al
having supervisory responsibility for the per Ron(s)
who, acting under my direct instructions, made the
verif lcati on, that this information is true, accurate,
and complete.
For purposes of this Orde r , a responsible official is a corporate
officer who is in charge of a principal business function.
XXIX.
PARTIES BOUND
1. Each of the Parties to t his Order states that he or she
is fully authorized to enter into the terms and condi t ions of
this Order and to bind legally the party represented by him or
her to the Order.
2 . This Order applies to and binds the EPA, the
Respondents, and the Respondents' respective officers, dire ctors,
principals, employees, agents, servants, successors, and assigns.
3 . No change in ownership or corporate or partnership
status shall in any way alter the responsibility of the
ReApondents under this Order. The Respondents shall be
responsible for carrying out all actions requi red by t he terms
and conditions of this Or der.
55
XXX .
MUNICIPALITY AND SPECIAL DISTRICT RESPONDENTS
1. The Metropolitan Denver Sewage Disposal District No. I,
the Littleton-Englewood Bi-City Wastewater Treatment Plant, and
the City of Lakewood ("Municipalities/Special District s") are
political subdivisions of .the State of Colorado and are subject
to constitutional, statutory, and home-rule restrictions,
including limitations on incursion of debt. Notwithstanding
anything to the contrary contained in this Order, EPA
acknowledges t hat the Municipality/Special Districts are not
agreeing to assume responsib \lity tor obligations under this
. Order in excess of the following amounts :
Metropolitan Denver Sewage
Disposal Distr J.ct No . I
Littleton-Engl~wood Bi-City
Wastewater Treatment Plant
City of Lakewood
$885,500
$253,000
$126,500
In addition, the Municipalities/Special Di stricts are not
agreeing to indemnify and save and hold harmless the United
States or the State of Colorado as set forth in Section XVI
( Financial Assurance, I r.su .rance, and Ind e mnifi c ation). In th"
event Respondents are required to perform Additional Work
(Section IX) or are subjecL to stipulated penalties in exces s of
their amount contributed, the Municipalities/Special Distr icts
shall in good faith consider contributing additional funds toward
performance of the work or payment of stipulated penalties.
56
2.
Hothing in this Order is intended to or shall waive the
defense of sovereign immunity or any other protection granted to
the Municipalities/Special Districts under state or federal
constitutions and law.
XXXI.
COUHTERPARTS
Th i s Order may be executed and delivered in any number of
counterparts, each of which when executed and delivered shall be
deemed to be an original, but such counterparts s hall together
constitute one and the same document .
IT IS SO AGREED:
57
ADOLPH COORS COMPANY
BY:
TITLE :
RICHARD D. ZILLMAN
VICE PRESIDENT, TRE ~5URER
58
AMAX RESEARCH & DEVELOPMENT, INC ., F/K/A / AMAX EXTRACTIVE
RESEARt:11 & DEVELOPMENT, INC.
8'(:
TITLE: DR. A. KUHAR BHASIN
PRESIDENT DATE
59
ASAHERA OIL (U.S .) INC.
BY: A, R. SELLO DATE
TITLE: PRESIDENT
BY : G. S. THOMS DATE
TITLE: ASSISTANT SECRETARY
60
CONOCO INC .
BY: D. F. HYERS OATE
TITLE : MANAGER OF DENVER REFINERY
61
HEWLETT PACKARD COMPANY
BY: HAROLD E. EDMONDSON DATE
TITLE: VICE PRESIDENT, MANUFACTURING
62
HONEYWELL INC .
BY: DATE:
TITLE:
63
INTERNATIONAL BUSINESS MACHINES CORPORATION
BY : JOHN F . SERINO, JR . DATE
TI!LE: DIRECTOR
ENVIRONMENTAL PROGRAMS
64
CITY OF LAKEWOOO
BY:
TITLE:
ATTEST:
BY:
TITLE:
APPROVED:
BY :
TITLE:
NANCY FREED
ACTING CITY MANAGER
KAREN GOLDMAN
CITY CLERK
RICHARD ,T . PLASTINO
DIRECTOR OF PUBLIC WORKS
APPROVED AS TO FORM:
BY :
TITLE :
ROGER NOONAN
CITY ATTORNEY
65
DATE
DATE
DATE
DATE
LITTLETON-ENGLEWOOD BI-CITY WASTEWATER TREATMENT PLANT
BY :
. TITLE :
STEWART H. FONDA
DIRECTOR
DATE
66
METROPOLITAN DENVER SEWAGE DISPOSAL DISTRICT NO . 1
BY :
. TITLE:
ROllERT W. HITE
MANAGER
DATE
67
SUNDSTRAND CORPORATION
BY: WILLIAM R. COOLE DATE
. TITLE: ASSISTANT SECRETARY
68
SYNTEX CHEMICALS, INC.
BY: G. L. HOERIG
TITLE : VICE PRES IDENT ANO
GENERAL MANAGER
DATE
69
THE GATES RUBBER COMPANY
BY:
. TITLE:
T . ,T. GIBSON
SENIOR VICE PRESIDENT
AND SECRETARY
DATE
70
THE S . W. SHATTUCK CHEMICAL COMPANY, INC .
BY : HENRY F . BARRY DATE
. TITLE : VICE PRESIDENT OF TECHNOLOGY
71
IT IS SO ORDERED:
U.S. ENVIRONMENTAL PROTECTION AGENCY
BY:
TITLE:
JAMES J. SCHERER
REGIONAL ADMINISTRATOR
72
DATE
APPROVED AS TO FORM :
STATE OF COLORADO
. BY:
TITLE :
THOMAS P. LOOBY
DIRECTOR, OFFICE OF
HEALTH AND ENVIRONMENTAL
PROTECTION
73
DATE
CERTIFICATE OF SERVICE
The undersigned hAreby certifies that the original and one
copy of the attached SECOND AMENDED AND RESTATED ADMINISTRATIVE
ORDER ON CONSENT, Docket No. CERCLA-VIII-88-18, and the
Conceptual Work Plan dated September 22, 1989, were hand carried
to the Regional Hearing Clerk, EPA Region VIII, 999 18th Street,
Suite 500, OAnver, Colorado, and one copy of the SF.COHO AHENL>ED
AND RESTATED ADMINISTRATIVE ORDER ON CONSENT and the Conceptual
Work Plan dated September 22, 1989, was sent via certified mail,
return receipt requested, to each ot the following persons:
Adolph Coors Company
c/o John R, Jacus, Esq.
Bradley, Campbell & Carney, P.C.
Counsel for Adolph Coors Company, Inc.
1717 Washington Avenue
Golden, Colorado 8040 1
Amax Research & De velopment, Inc.
F'K /A Amax Extractive Research & Deve lopment, Inc.
c/o Louis Harucheau, Esq .
AMAX Western Area Law Department
1707 Cole Boulevard
Golden, Colorado 80401
Asamera Oil (U.S . l, Inc.
c/o William Bruce Thompson, Esq .
Shaw, Spangler & Roth
Counsel for Asamera Oil (U.S.), In c .
1700 Broadway, Suite 1400
Denver, Colorado 80290
Conoco Inc .
c/o D.F . Myers
Manager of Denver Refinery
5801 Brighton Boulevard
Denver, Colorado 80022
Hewlett Packard Company
c/o J. Kemper Will, Esq .
Counsel for Hewlett Packard Company
1441 I St ~ Street, Suite 50
Denver, Colorado 80202
Honeywell Inc.
c/o Gary E. Parish
Popham, Haik, Schnobrich & Kaufman, Ltd .
1200 17th Street
Denver, Colorado 80202
International Business Machines Corporation
c/o Michael L. Hurray, Esq.
208 Harbor Drive
Stamford, Connecticut 06904
City of Lakewood
c/o Howard Kenison, Esq.
Gorsuch, Ki rgis, c~mpbell, Walker & Grover
Counsel for City of Lakewoud
1401 Seventeenth Street, Suite 1100
Denver, Colorado 80217-0180
Littleton-Englewood Bi-City Wastewater Treatment
Plant
c/o David w. Robbins, Esq.
Hill & Robbins, P.C.
Counsel to the Littleton-Englewood Bi-City
Wa stewater Treatment Plant
1441 18th Street, Mo. 100
Denver , Colorado 80202
~e t ropolitan Denver Sewage Disposal Di s trict Mo . 1
c/o Robert W. Hite, Manager
6450 York StrP.e t
Denver, Co l o rado 80229
Sundstrand Corporation
c/o Charlotte Meitzel, Esq.
HolmP., Roberts & Owen
Counsel for Sundstrand Corporation
Suite 4100
1700 Lincoln Street
Den ver, Color a do 80203
Syntex Chem :cals, Inc .
c/o Anne Wi l liams, Esq .
Environmental & Administrati ve Law
Syntex (U.S .A.) Inc.
3401 Hillview Avenue
Palo Alto, California 94303
DATE
The Gates Rubber Cnmpany
c/o HP.rry Ann Vernon, Esq .
Gates Corporation
900 South Broadway
Denver, Colorado 80209
The s . W. Shattuck Chemical Company, Inc.
c/o John o. Faught, Esq .
John o. Faught, P.C .
Counsel for S . W. Shattuck Chemical
Company, Inc .
Boettcher OTC Building, Suite 1040
8400 East Prentice Avenue
Englewood, Colorado 80111
Colorado Department of Health
c/o Thomas P. Looby, Director
Office of Health & Environmental Protection
4210 East Eleventh Avenue
Denver, Colorado 80220
BY :
DATE
October 16, 1989
INITIATED BY
STAFF SOURCE
ISSUE/ACTION PROPOSED
.&OUNCIL COIIIUNICATIOII
AGEll>A ITEM
11 (c)
SUBJECT Lowry Landfill
Superfund Site Deep
Groundwater Operable Unit .
Bi-City Supervisory Conmittee
Stewart Fonda
The action proposed is to approve by resolution an agreement to perform a remedial
investigation/feasibility study (RI/FS) for the Deep Groundwater Op erable Un i t at
the Lowry Landfill, in conjunction with the RI/FS for the Shallow Groundwater and
Subsurface Liquids Operable Unit (Shallow Groundwater 0 .U.) and authorize the
Director of the Littleton/Englewood Bi ·City Wastewater Treatmen t Plant to sign the
agreement.
PREVIOUS COUNCIL ACTION
On September 19, 1988, Resolution 62 was passed approving the appropriation of
$200 ,000 from the Bi-City WWTP fund to participate in the RI/FS .
STAFF ANALYSIS
The cities have been named as potentially responsible parties for the Shallow
Groundwater O.U . at the Lowry Landfill . This O.U. is one of six established by the
EPA to organize the cleanup of the landfill. Another operable unit, De ep
Groundwater, is closely connected to the Shallow Groundwater O.U. from a pr oximity
and geologic standpoint. Performing the RI /FS for the De.ep Groundwater O.U. in
conjunction with Sha 11 ow Groundwater O. U. wi 11 establish the extent of any
contamination that may have occurred at the site for which the cit ies could be
designated responsible parties . These two operable units are th e onl y ones the
cities should be involved in.
Performing the RI/FS for both the operable units will reduce the overall cost of
th i s portion of the project by maximizing the use of existing agreements and
procedures, by minimizing the number of contractors performing the work, by
performing s imi 1 ar types of work at the same time and by minimizing mobilization and
project administration costs . As with the Shallow Groundwater O.U ., performing the
RI/FS will allow the cities some control in the clea•,up process .
~WV.ill
Attached Is I copy of the l 1ttl eton/EngleWuod Bi -City Wastewater Treatment Plant Background Paper on Lowry landfil 1.
~
The cost of performing the Deep Groundwater 0.U . RJ/FS will not exceed $53 ,000 ,
bringing the total financial c011111it111ent to the RI/FS to $253,000 . The cost of Lowry
landfill services 1s split 50/50 between the respective sewer funds of Englewood and Littleton .
[,ITTLETON/ENGLEWOOD Bl-CITY WASTEWATER
TREATMENT PLANT BACKGROUND PAPER
ON LOWRY LANDFILL
The following explains the background and positions of
the Littleton/Englewood Di-City Wastewater Treatment Plant
("Di-City Plant") on the Lowry Landfill.
I. Factual Background
The Lowry Landfill is located at Section G, T4S, R65W,
6th P.M., approximately 15 miles southeast of downtown
Denver at the intersection of East Quincy Avenue and Gun
Club Road in Arapahoe County. The Lowry Landfill site was
formerly used by the United States ~Ir Force as a bombing
range. In 1964, the federal government deeded the property
on which the landfill is located to the City and County of
Denver ("Denver") for use as a munic I pal sanitary land f I 11.
Denver continues to own the landfill site.
in 1967, Denver began operating an industrial and
municipal waste landfill at the site. The Environmental
Protection Agency ("EPA ") estimates that from 1957 through
1980, 71 million gallons of liquid industrial wastes con-
taining hazardous substances, pollutants or contaminants
were placed in approximately 65 unlined pits at the site,
which were then covered with municipal refuse, soil and
approximately 8 million tires.
The Bl-City Plant hauled some or all of the sewage
sludge produced at the Plant from mid-1977 to mjd-1980 to
the Lowry facility . In all, approximately 3,557 ton s of
sludge were hauled. Of that amount, the greatest bulk was
water, amounting to approximately 2,850 tons, followed by
organic material, amounting to approximately 700 tons.
The sludge was produced by the Plant as the product of
the digestion of the sewage ; the other primary product
produced was clean water. The sludge was separated from the
liquid using a vacuum belt filter, which reduced the sludge
to a consistency of moist peat. This dried sludge was
hauled to the landfill in dump trucks and deposited on the
face of the sanitary landfill. We do nut currently believe
that the sludge was pl a ced in the waste pits.
Denver stop~ed accepting industrial hazardous waste
for disposal at the site in 1900, and Waste Management of
Colorado, Inc. ("WMC") be9:,n operating thc site under
contract with Denver. :iunicipal wastcs continue, to be
disposed of at Lowry Landfill.
In 1984, Lowry Landfill was placed on the National
Priorities List ("NPL ") of waste sites posing the most
sign\flcant public health or environmental rls 1:. Some 200
person and entities, including the Bl-City Plant, were
identified as potentially responsible parties ("PRPs") for
the cleanup of Lowry Landfill pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"l, as amended by the Superfund Amendments and
Reauthorization !\ct of 1986 ("SIIRA"), commonly known as
•super fund."
II. SUPERFUND
Once a Superfund site is established, Superfund
requires EPII to select a remedial action "that is protective
of human health and the environment, that is cost effective,
and that utilizes permanent solutions and alternative treat-
ment technologies or resourne recovery technologies to the
maximum extent practicable." Section 12l(b) (1) .1/ Super fund
·further provides for two means of remedial actions, which
are usually used in combination : 1) tran Gfer o f hazardous
substances, pollutants and contaminants from the site to an
approved disposal facility, Section 12l(d) (3) and 2) on-site
cleanup that meets all applicable or relevant and
appropriate requirements ("AMRs") mandated by state or
federal law for those hazardous substances, pollutants and
contaminants at the site. Section 12l(d) (A).'!._/
1/ "Remedial actions" a re di s tinguishable from "removal
actions" in that remedial a ctions are those actions consis-
tent with a perman e nt reme dy , s uc h a s storage, clay cover,
cleanup, etc. n~moval ac ti on s are l es s permanent, such as
fencing to lim it access to a s ite, provision of alternate
water supplies, temporar y evacuation, etc. Section
101(23), (24).
2/ Attainment of 1\MR s may be waived wh ere :
1) the remedial act ion is only part of a total
remed i al act ion that will ultima te ly attain
compliance with AM Rs;
2) attainme n t will re s ul t i n gr eater human health and
environmental ris k;
3) attainment is techn ical ly impracti cab le from an
engineering standpoint;
4) the remedial action will attain a standard of
performance equivalent to that required under the
ARAR through us e of another method or approach;
5) with respect to 3 state AMR, the s tate has not
consistently applied the 1\RAR in similar
2
Remedial actions which permanently and slgniflca,tly
reduce the volume, toxicity or mobility of hazardous
substances, pollutants and contaminants are preferred, and
EPA must conduct an asseasment of permanent solution• and
alternative treatment technologies or resource recovery
technologies to determine which will result, In whole or In
part, in a permanent and signifi c ant decrease in the
toxicity, mobility or volume of tne hazardous substance,
pollutant or contaminant. Section 12l(b) (1). Remedial
action usually Involves a combination of treatment or
resource recovery technologies. EPI\ must address the long-
term effectiveness of those alternatives and must take into
account:
1) The long-term uncertainties associated with land
disposal;
2) The goals, objectives and requirements of the
Solid Waste Disposal l\ct;
3) The persistence, toxicity, mobility, and
propensity to bioaccumulate of such hazardous su~stances;
4) Short-and long-term potential for adverse health
effects from human exposure;
5) Long-term maintenance costs;
6) The potential for future remedial action costs if
the alternative remedial action in question wera to fail;
and
7) The potential threat to human health and the
environment associated with excavation, transoortation and
redisposal or containment. Section 12l(b) (1)
0
(1\-G).
In determ i ning which remedial action to employ, EPA
must build an administrative record as the basis for and the
selection of remedial action. EPI\ can t.hen implement that
remedial action itself through the expenditure of Superfund
monies and then seek to recoup the cost of that implementa-
circumstances; or
6) in the case of remedial actions using Superfund
monies, the remedial action will not provide a
balance between health and environmental protec-
tion at the site and the availability of funds to
res~ond to other sites that present health and
environmental threats.
Section 12l(d) (~) (A-F)
tion from one or more PRPs, or It can order one or more PRPs
to carry out the remedial action themselves. Sections 104,
1.06 and 107.
Liability ls generally considered to be joint and
several under Section 107. That Is, EPA may pursue the
total cost of its selected remedial action from ani• group of
PRPa or from a s.lngle PRP. Liability Is also strict. That
Is, once a PRP Is shown to have disposed of ha z ardous sub-
stances at a Superfund site, liability is automatic unless
the PRP can show one or more of the following defenses:
that the release of the hazardous substance was caus~d
solely 1) by an act of God, 2) an act of war, or 3) the acts
of independent third parti es with whom the PRP had no
employment or contractual relationship, and the PRP
exercised due care with respect to the hazardous substance
and took precautions against foreseeable acts of third
par U es. Section 107 (bl.
The selection of a remedial action begins with a
remedial lnvestlgat lon/feasibi 11 ty study (" RI/FS '' l. This
process consists of the following s tep s:
1) Scoping of the RI/F S . This ste p Involves the
identification of ARAll s , data quality objectives
for the RI and possible operable units.
2) Site Char acte0_~~ (Ph ase I of RI). This step
involves e va l uating t~c n atu r e a nd extent of con-
tamination, r ~f ining da t a quality objectives and
determin ing t :1e need fo r pilot or be nch scale
treatabili ty studie s.
)) Development of Altern a t i ves (l?hase I of FS). This
step involv e s 1uent1fy1ng ?Otential treatment,
contaminant and disposal t e chnologies and
developin g alte rnat i ve remedies.
4) Screening of Alt e rn a ti ~~ (Phas e II of FS ). This
step involv es sc r eeni ng alte rnative remedi s based
on reli a bility, fea s ibility and cost.
5) Field Inves t i gation (Phas e II o f !ll l. Th i 5 s tep
involv es conIT(ffiI"ng' t h e na tur ~ ;:in d 0 :-ctcnt of con-
tamin ation and pe rform ing p il o t and/o r bench scale
treata bility t e~t s .
6) Evaluation o f Altern atives (Pha se III of FS). This
step involves evaluating remedial alternatives
based on compliance with AI\ARs; protection of
human health and the environ~ent; reduction of
toxicity, mobility or volume; short-term and
tong-term effectiveness; feasibility; cost and
community and state acceptance.
7) Selectlon of Remedy, Thls step lnvolvos selectlng
a remedy that protects human health and tho envlr-
onmenti that attain ARARs: that ls cost effective,
and that utilizes permanent solutions and alter-
native treatment technologies or resource recovery
technologies to the maximum extent practicable.
The EPA has designated six operable units for Lowry
Landf i 11:
l. surface water
2, Landfill solids
3. Landfill gas
4. Solls
5. Deep groundwater
6. Shallow groundwater and subsurface liquids
These operable units were designated to allow for a closer
focus and analysis on specific potential problems at the
site.
On June 20, 1908, the EPA issued spe~ial notice
letters to 28 PRPs, includ !,,g the ni-City Plan t, directing
them to negotiate an Admini st rative Order on Consent
("Adminlstrative Order") to perform or finance an RI/FS for
the Shallow Groundwater and Subsurface Liquids Operable Unit
("Shallow Groundwater OU"). 1'he letter was backed by the
threat that EPA would order those PRPs to perform the
Shallow Groundwater OU under Section 104 or EPA wnuld
conduct the work itself and seek reimbursement of the cost
of that work from those PRPs under Section 106 . On Decem e r
6, 1988, ten of those PRPs, including the 9i-City Plant,
entered i nto an Admini st rative Order with EPA and agreed to
evaluate the nature and extent of the threat, if any,
presented by the release or threatened release of hazardous
substances, pollutants or contaminants from the waste media
in the Shallow Ground Water OU and to ev3luate remedial
alternatives. The PRPs, known as the Lowry Coalition, also
agreed to conmtruct and maintain a comma nd post at the Lowry
Landfill si te, to manage wastes generated at the site and to
collect Phase I X RI data. The Shallow Groundwater OU is
expected to cost $7 million and take three years to
complete. Three additional PRPs joined the Coalit ion in
December 1988.
III. FUTURE PLANS AND POSITIONS
While the avoidance of liability under Super fund
remains an ultimate goal, it is generally regarded as
prudent to cooperate in the remedial action selection
pcocess to reduce potential liability because of the limited
number of defenses available to PRPs under Superfund and
because o f the possibil i ty t~~t the EPA may seek all
remedial action costs against only one or a relatively
limited number of PRPs. Good fa i th cooperation may also be
considered as a defense or mitigating factor in an action
for treble damages or pe nalties.
A. Participation In The Superfund Process
A PRP may take advantage of se ttlement mechanisms
within Superfund, such as de minimis settlements, mixed
funding and Nonblndlng PreITmTnary Alloc at ions of
Responsibility ("NBA Rs");3/ and to seek to influence the
manner by which liability-may ultimately he apportioned and
to influence the selec t ion ot th e Jlt t •a •• :emedi al
actlon.4/ In addition , ?a s t e xperience ha s demonstrated
that it-ls more c ost -e f f ective fo r PRPs to conduct the RI/FS
process than to let EPA conrtuc t th a t proce ss and recoup its
cost from the PRP s .
~o the e xte nt t he Di-C i ty Pl ant ha s agreed to
participate in the !hallow Groundwater OU, t he Bl-City Plant
has elected to parti c i pate in t l1e Supc r f l1ncl process in a
limited fashion. The Bi -Ci ty Plan t s h o ulrt cont i nue to
participate i n the ~up0r f u n d l'I ocesr; u~ se t f o rt h Uel ow.
l. Apportionme nt of Lia!,~
Although lia bi lity under Su pe r [un<l ~e ner~Jl y ls
considered join t and se ve r a ], one or r11 o;r• !-H P!.. who a re sued
by EP ,\ to pay for rcmc d iu l a c t i o : ,,, , ··,,1 ~er:'-: c o ntribu -
tion fr om other PHPs fo r the c osts at lri bu t ctb le t o t he waste
disposed of by those othe r PR Ps. Se ct lon 113 ( f). In deter-
mining how to allocate remedia l ac t i o n costs among other
PRPs in an action for co n t ribution , Su pe r f und directs courts
to use "such eq uita ble factor s a s t h e court de termines are
appropri a te." Se c t i o n ll)(f ) (l l . Some equ i t ab le factors
taken into consid e rat i on include t he t ype and vol ume of
waste deposited, the deg r ee o f coope r a t ion by the PRPs in
the remedial ac tion select i on proc ess a nd the s teps taken by
3; NllARs are also known as "NPARs."
4; EPA has estimated th3t cleanup of Lowry Landfill may
cost ~etween $151 million to $~.5 billion, depending on the
remedial action ult imately selected.
the PRPs to address the environmental threat posed by theit'
waste. (/\s a practical matter, these factors moy also be
used by a court to allocate initial liability as well.)
While actions for contribution are advantageous in
that they allow one or more PRPs who have been sued for
remedial action costs to spread those costs to other PRPs,
the transactional costs (attorneys' fees, engineering
costs, employees' time, consultants' time, etc.) in pursuing
such actions are high. Moreover, there is no guarantee as to
which equitable factors a court will cunsider in allocating
costs. As a result, most PRPs who participate in the super-
fund process try to a g r ee on an allocation scheme among
themselves. (The Lowry Coalition has provided for an
Allocations Subcommittee to try to develop such an
allocation scheme.)
The Bi-City Plant should pursue and participate in
efforts to develop a scheme to allocate ultimate remedial
action costs among PRPs, while a t the same time retaining
all rights to seek contribution f rcm other PRPs. In no case
should volume of ffiaterials depos i ted at the sit~ be the sole
basis for allocation of remedial action costs; persistency,
special or extraordinary environmental threats posed by
particular wastes volume of hazardouos substances, to,icity,
mobility, etc., should be considered as well inasmuch as
each of these factors bears on the ultimate remedial action
selected.
2. NB/\Rs
Superfund provides that the EP/\, if requested by PRPs,
may issue nonbinding preliminary allocation s of responsi-
bility at the time o f the completion of the RI/FS. Section
122(e) (3). NO/\Rs are designed to p rovide a basis for
allocating remedial action costs among PRPs where PRPs are
unable to agree among themselves to an allocation scheme.
NOARs are not admissi b le a s evidence in any proceeding.
Section 122(e) (3) (c). PRP s may offer to pay their respec-
tive NDAR allocations in settlement to EPA.
Superfund provides that EPI\ may consider a number of
factors in develop i ng NO/\Rs, such as volume, toxicity,
mobility, strength of evidence, ability to pay, litigative
risks, public interest considerations, preceoential values,
inequities and aggravating factors. Section 122(e) (3) (/\).
However, EPA's approach in developing !IBI\Rs has been to
emphasize volume as a primary factor. This approach is the
result of the cost involved in considering other factors
such as tuxicity, mobility, etc. OP.cause volumetric alloca-
tion conflicts with the allocation scheme sought by the
Bi-City Pl•nt, the Bi-City Plant must be very cautious in
advocating &ny support for an NBAR under current EPA
practices. If EPA practicea change and EP/\ begins to
consider facl:ors other than volume in developing an NBAR,
7
and if PRPs are not assessed the cost of conslderlng those
factors, the Bl-City Plant should cor,slder supporting an
NBAR, Support for an NBI\R should also depend on 1~hether
enough information regarding wastes has been gathered to
develop a meaningful NBAR.
3, De Minlmis Settlement
Superfund provides that EPA shall, whenever
•practicable and in the public interest," enter lnto a
settlement with a PRP lf the settlement involves only a
minor portion of the response costs at a superfund site and
the amount and toxicity of the hazardous sub stances
contributedoy the PR~ to th e site are mi nimal ln comparison
to other hazardous substances at the site. 5ectlon
122(9) (1). Such a sett l e men t ls s ub j ect to public comment
and may be accompanied by a covenant not to sue, unless such
a covenant would be Inconsistent with the publf.c Interest.
Section 122 (g) (2), ( i).
The de t e rminat ion of who qual i fies for de mlnlmis
treatment is made by EPA o n a si te-by -: i e 1:il1s is:--oiice EPA
determines who quali fies for s uc h treatment, those PRPs are
encouraged to draft a nd present mul t i-party settlement
offers to EPA so that a single , comprehe n sive settlement can
be reached with de minim~ PRP s . 52 Ped.Reg. 24333 (1987),
The advantc1 ge!S o f de min~~.!3.. set tle ment a re numerous:
a) de min i mi s se ttlement may c ost le ss than the legal
fees and transa c t lO!la l cos t s inc utr !'d in neqot iatlng and
litigating with E?A a nd in pur s uinq a nd def e nding claims for
contribut ion with other PRPs , eve n if the de minimis PRP is
ultimately successfu l ;
b) de min i mi s PRPs r,ay o btain prote ct ion from claims
for contributionfro:n o t he r Pill's fo r matt n rs r.nv e red by the
settlement;
c) de mlni mis PRP s may negotiate a release or
covenant 11ul t o su e from £P.l\; an cl
d) settleme nt wo u ld r em ove de mi ni mis PRPs from the
scope of EPA's policy of vi gorou s l ysee ktng-all re maining
relief, includ i ng costs, penalties and treble damaqes where
appropriate, from PRP s who s e recalcitranc e made a comple te
set-tlement impo ssible.
For the foregoing reason s, the Bi-City Plant should
pursue de minimis s ettlement o,, the basis that the volume of
hazardous suosi:ances deposited by it at Lowry LaiiiJTill 1s
small 1n comparison ~o the total volume of hazardous su5=
iitaiices deoosi ted at the s l te, and the tox lei ty of the waste
is minimal:
4. Mixed Funding
Super!und provides that EPA may use a combination of
superfund monies and PRP funds to clean up Superfund sites
by agreeing with PRPs to reimburse them from Superfund
monies, with Interest, for certain costs of actions the PRPS
agree to perform. Section 122 (b) (1). t-(lxed funding is
designed to aid In expediting cleanup of sites where one ·or
more major PRPs are blocking a settlem~nt. Instead of
delaying cleanup until settlement Is reac~ed or until liti-
gation against them is completed, mixed funding would allow
the other PRPs to undectake cleanup and obtain reimbursement
from EPA when It is completed. ~PA would then pursue those
costs from the recalcitrant PRPs . Mixed fundi ng would also
be used where a number of PRPs cannot be found a nd It would
be inequitable for the other PRPs to bear the responsibility
for those "orphan • shares. EPA might provide mixed funding
to cover those claims.
The Di-City Plant should pur s ue mixed funding if
circumstances present them s elves fo r the a pplication of such
funding.
5. Remedial Action
As indicated above, the selection of a remedy requir~s
choosing a remedy that protects human health and the envir-
onment, that attains ARARs, that is cost effective, and that
utilizes permanent sol utions and altcr ~a tive treatment tech-
nologies or cesouc ce recovery technologies to the maximum
extent pcacticable. Sect i on 121. (The weight given to each
of these factocs may va cy, howe ver.) The RI/PS pcocess is
designed to address each of the s e consideration s and provide
a basis for the rdection of remedial action.
EPA has c on :;idecable disccetion in detecmining what
remedies meet th ese guidelines, s uch as what state and
federal statutes are relevant and a ppropriate to a
particular site, wh a t c emedies are protective of human
health and the environment, and what remedies are cost
effective. Remedial action ma y range from no action at all
to on-site incineration o f all contaminated so il s . Indeed,
EPA has estimated that clean up of Lowry Landfill may cost
between $151 million and $4.5 billion, depending on the
remedial action ultimately selected.
PRPs ma y i nfluence the u l timate selection of a
remedial action through participation in the RI/PS process.
For instance, PR?s who participate ln the process can com-
ment on and suggest changes to documents in the RI/FS
process that form the basis for remedial action selection.
9
The Bl ·Cl t r Plant should take an active role in any
aspect ~f the ~ha llow Groundwater OU that may influence the
ultimate sele ·U on of remedial action.
6. Participa t on_in Other ous
As i~dicat~ above, the EPA h•s designated five
operable units !r. addition to the Shallow Groundwater OU.
They are: surface water, landfill solids , landfill gas,
soils and deep groundwater . EPh has indicated that it
Intends to send out special notices to PRPs to participate
in or pay for addition al operable units in May and June of
1989. EPA has not indicated which PRP s will receive such
notices. Bi-City should seek to avoid being Included In any
special notice group for the additional OU's.
Depending on the 3i-City Plant's progress In achieving
a de mlnimis settle me nt, the ai-r.ity Plant will want to
monitor the other ope r abl e un its closely. In particular, we
will wa nt to watch t h e La ndfi 11 S ol i d s Oil , give n t he nature
and locat i on of tlt e munJ c ipal sludqe we d Lpo~i tc<l , t o ensure
that the nature o r ex t ent of p roblems a s soc iated with those
wastes ar e not ml ach a r act e ri zcd or un f a irly attributed to
the Bi-City Plan t by othe r PRP s .
3. Activitie s Outs i de 1~e _sueerfund _Process
In addition tn pa r t ici p ation in th e remedial action
selection proces s, PnPs c an see k t o li mi t o r avoid liability
in thr ee wa ys : 1) li I. i g .1 Le the i~s1J ,• :,f whether any ha z ard-
ous waste s .at Su pc t f.uncl !'jl t c ~:-c aLL--i t,u ta blc to th e PRP;
2) se ek legis l at i ve re d rl.!S~l; i-• 1 ) sh ift: re :3po nsibility to
an insuran c e carr i er .
Th e Di -City P l i~.1t hc:c-, i!l r1;,1t'.J~1 tr. (J11 11i n ce EPl\
that th e wa stc !:i it dcposlter! c1t I.ht'• r,n wry La11 df.ill were not
haza rdou s a nd th at the Di -City Plant s ho ul d n ot he consi-
dered a PR P . 'l'o ate , EP/\ h.:ts nol: h~cn l:l:s pon sivc to those
efforts.
Supe r fu n d desig n ates those sub9 t a nces con s idered
hazardous a nd est abli s t,es the amount of those s ubstance s
that tr i ggec r epor t i n') rt?qu i r e mc 1:t:n un de r Supe r f und .
Section s l 0 l (H), l0 ?.. Se vera l c o,ir ts h av e i n t e r pre t ed
S uperfund to impo se l iability fo r an y am o unt of hazardous
substances depo s ited a t a Superfund s ite. See United States
v. Car~lawn C<>"'!.'.a'!l'.. ~:. S Chem. & Rad . Waste CTt. Rptr.
ntrm.S:-C-:-7'<nr4T; iJn1t ~d States v. Wa d ,•, 577 F .Supp. 1236
(E.D.P a 1983).
10
As discussed above, the Bi-City Plant's response to
information requested by EPA indicates the presence of trace
concentrations of several heavy metals in the Plant's
sludge. Of those metals, some have been characteri,ed as
hazardous substances in other contexts. While the concen-
trations of those metals are small, they provide an arguable
basis for EPA continuing to pursue the Bl-City Plant as a
PRP.
2. Legislative Lobbyini
The two Cities have participated in lobbying efforts
in several regards. First, representatives of the two
Cities have met with Congressional representatives to dis-
cuss the Plants's position with respect to Superfund issues.
Second, representatives have participated in EPA's Municipal
Settlement Discussion Group. That Group has met several
times to discuss issues with respect to how municipalities
should fit into the Superfund settlement process. An EPA
municipal settlement policy based on those discussions is
expected !n mid-19B9. Finally, representatives of the two
Cities have supported recommendations that the National
League of Cities establish a policy addressing the concerns
of municipalities involved in the Superfund process. The
two Cities continue to pursue their Congressional and
National League of Cities lobbying efforts.
3. Insurance
The Cities have notified their insurance carriers of
potential claims under their policies with respect to
liability arising out of the Plant's involvement in Lowry
Landfill. The Cities are complying with insurance carriers'
requests to keep them informed about the status of the
matter.
The Cities should consider additional action to force
those carriers to indemnify and defend the ?lant as
additional information becomes available. Initially, the
Cities' insurance policies need to be reviewed and a
decision made concerning the scope of their coverage. A
decision then needs to be made concerning when and how to
s~ek to require the carriers to participate in the Cities'
defense.
lFncr/cp
11
DAYIDW,.0981M•
•oe••TP, lflLL
DIIMNla M , NONTOON•lfT
•OMM.D L . _,LOOX
MAIIN J , WAON .. I
W■MD't" ■. aLOON
DA'IIDII. rlMI
HILL & ROBBINS, P.C.
AffOIINCYS AT U.W
100 BUJ<I 9THIT BUILDINO
1441 IIO"TIINTII STfllllT
DINV&II , COLORADO eoto•
October 2, 1989
TSUPIIOl'II
IOI ·••·••OO
TILIOOPlllf ,o,,, ......
Mr. Stewart Fonda, Director
Bi-city Wastewater Treatment Plant
2900 South Platte River Drive
Englewood, CO 80110
Dear Stu :
Re: Second Amended and Restated
Administrative Order on Consent for the
Lowry Landfill Shallow Groundwater and
Subsurface Liquids and Deep Groundwater
Operable Units Remedial Investigation
and Feasibility Study ( "Second Amended
AO")
Enclosed please find the Second Amen de d AO and s ignature
page for your execution. '!'he enclosed has been circulated to
Rick DeWitt and Larry Berkowitz for their approval and
presentation to the city council s of t he Cit.ies o(
Littleton/Englewood. It is our under s tand ing that th e c ity
councils will act upon the encl oscn by o~t o be r 16 , 19 89 .
The Second Amended AO incorporates the Deep Groundwater
Operable Unit. As previously rec unnnend e d to the Cities, approval
of participation in the Deep Groundwate r Operable Unit has
significant advantages in terms of allowing the Cities to
participate in directing whatever remediation will be required at
Lowry Landfill and enabling the Citie~ to achieve significant
contribution protection in relation co the amount of contribution
to be expended by the Cities for the Deep Groundwater Operable
Unit ($53,000 for both Ci ties).
Mr. Stewart Fonda, Dir~ctor
October 2, 1989
Page 2
EPA had requested execution of the enclosed by Se ptember 2 9 ,
1989. EPA has agreed to an extension of that date to enable the
cities to formally approve the enclosed at their council
meetings. However, to ensure that an executed version of the
enclosed is provided to EPA as quickly as possible after the c i ty
councils formally approve the Second Amended AO, I would
appreciate it if you would execute the enclosed signature page
and return it to this office, where we will hold it unt i l we h~ve
received formal approval from both city councils to forward i t to
EPA.
RLW:cp
Enclosure
(2322)
Sincerely,
;! tM A/ d). . w .,:Leo;(
Ronald L. Wilcox
e
RESOLUTION NO. !2:/
SERIES OF 1989
A RESOLU~'!ON COMMENDING CHRIS MARES AND JOE MAURO FOR SAVING THE
LIFE OP A HAN BY USE OF CARDIO-PULHONARY RESUSCITATION.
WHEREAS, on September 29, 1989 at 11:28 a.m., Frank Mauro
suffered cardio -pulmonary arrest at 3480 South Broadway; and
WHEREAS, co-workers Chris Mares and Joe Mauro (son of Frank
Mauro) did perform cardio-pulmonary resusritation (CPR) on Fr a nk
Mauro; and
WHEREAS, the responding paramedics believe the act of CPR
by Chris Hares and Joe Mauro saved the life of Frank Mauro;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ENGLEWOOD, COLORADO;
That Chris Hares and Joe Mauro be and hereby are commended
for saving the life of Frank Mauro.
ADOPTED AND APPROVED this 6th day of November, 1989.
Atte_~t:
~1et a. t,#f✓t t-r:r'
Pa~ric a H. Crow, City Clerk
I, Patricia H. Crow, City Clerk for the City of Englewood,
Colorado, hereby certify th&t the foregoing is a true co py o f
Resolution No, .fl..:i., __ ies of 1989. ~ _ r1 (;;
I '/4 . J, I v d/rtui v ~h2t: Patricia H. Crow
DATE
Nov&llber 6, 1989
INITIATm IV
STAFF SOURCE
ISSUE/ACTION PROPOSm
COIIICIL COIIIJNICATION
MEIIIA ITEN
11 (cl
SUIJECT
Lieutenant Ji11 Ulrich, Fire Division
Citizen Con111end1tion
Al Stanley, Director of Safety Services
Council resolution conmendlng Chris Mares and Joe Mauro for performing CPR on Frank
Mauro , who had suffered c1rdlo-puh1on1ry arrest .
PREVIOUS COUNCIL ACTION
None
STAFF ANALYSIS
N/A
BACKGROUIII
See attached.
FINANCIAL
N/A