Notice of Availability of and Initiation of a 30 Day Public Comment Period for Two Administrative Orders on Consent for de minimis Waste Contributors and One Administrative Order on Consent for a de micromis Waste Contributor Pursuant to the Comprehensive Environmental Response Compensation and Liability Act (CERCLA)

Federal RegisterNov 24, 1997

Ask Donna

What actually matters in this document.

Text

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5926-5]

Notice of Availability of and Initiation of a 30 Day Public

Comment Period for Two Administrative Orders on Consent for de minimis

Waste Contributors and One Administrative Order on Consent for a de

micromis Waste Contributor Pursuant to the Comprehensive Environmental

Response Compensation and Liability Act (CERCLA)

Notice is hereby given that on October 15, 1997, 3 administrative

orders on consent (``Orders'') between the United States Environmental

Protection Agency, Region VIII and various parties potentially

responsible for costs incurred by the United States for cleaning up the

Summitville Mine Superfund Site (collectively, ``the Settling

Parties'') were approved by the Assistant Attorney General of the

Department of Justice, Environment and Natural Resources Division, on

behalf of the Attorney General of the United States.

Because of the minimal nature, by volume and toxicity, of the

hazardous substances allegedly contributed by the Settling Parties to

the Site, EPA determined that the Settling Parties are eligible for

either a de minimis or de micromis settlement in accordance with

Section 122(g) of CERCLA.

The first settlement is a de micromis Order with Newmont

Exploration Limited, Newmont Mining Corporation, and Newmont Gold

Company (collectively, ``Newmont''). It settles Newmont's potential

liabilities under CERCLA Sections 106 and 107 and RCRA Section 7003 for

extremely limited historic exploration activities Newmont undertook at

the Site. Because of the minuscule nature of Newmont's contribution of

waste at the Site, and in accordance with EPA guidance, EPA is entering

into this without requiring the payment of a settlement amount.

EPA is also entering into 2 de minimis Orders--one with ASARCO,

Inc. and one with ARCO Environmental Remediation, L.L.C. These Orders

settle ARCO and ASARCO's potential liabilities under CERCLA Sections

106 and 107 and RCRA Section 7003 for the limited historic exploration

activities they undertook at the Site. ASARCO and ARCO are paying the

United States settlement amounts of $86,052.73 and $95,000,

respectively. All 3 Orders are based on the respective applicable EPA

model Orders.

EPA Region VIII will receive comments relating to the proposed

[[Page 62596]]

Orders for a period of thirty days from the date of publication of this

notice. Comments should be addressed to Nancy Mangone, Enforcement

Attorney (8ENF-L), U.S. EPA Region VIII, 999 18th Street, Denver,

Colorado 80202 and should refer to the Summitville Mine Superfund Site,

EPA Docket Nos. CERCLA-VIII-98-02, CERCLA-VIII-98-03, and CERCLA-VIII-

98-04. In accordance with Section 7003(d) of RCRA, 42 U.S.C. 6973(d),

commenters may request a public meeting in the affected areas.

The proposed Orders may be examined in person at the Superfund

Records Center, EPA Region VIII, 999 18th Street, Suite 500, Denver,

Colorado 80202, (303) 312-6489. A copy of each Order may also be

obtained by mail from the EPA Region VIII Superfund Records Center

(8EPR-PS) at the address listed above. In requesting a copy, please

refer to the referenced case and number. There is no cost for

requesting this document.

Carol Rushin,

Assistant Regional Administrator, Office of Enforcement, Compliance and

Environmental Justice, U.S. EPA Region VIII.

CERCLA Section 122(g)(4) De Micromis Administrative Order on Consent

In the Matter of: Summitville Mine Superfund Site, Site No. Y3;

Newmont Exploration Limited, Newmont Gold Company, and Newmont

Mining Corporation; Respondents.

Proceeding under section 122(g)(4) of the Comprehensive

Environmental Response, Compensation, and Liability Act, as amended

(42 U.S.C. Sec. 9622(g)(4)). EPA Docket Number CERCLA-VIII-98-02.

I. Jurisdiction

1. This Administrative Order on Consent (``Consent Order'' or

``Order'') is issued pursuant to the authority vested in the President

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

Environmental Response, Compensation, and Liability Act of 1980, as

amended (CERCLA), 42 U.S.C. 9622(g)(4), to reach settlements in actions

under section 106 or 107 of CERCLA, 42 U.S.C. 9606 or 9607. The

authority vested in the President has been delegated to the

Administrator of the United States Environmental Protection Agency

(EPA) by Executive Order 12580, 52 FR 2923 (Jan. 29, 1987), and further

delegated to the Regional Administrators of the EPA by EPA Delegation

No. 14-14-E. This authority has been redelegated to the Assistant

Regional Administrator for Enforcement, Compliance and Environmental

Justice.

2. This Order is issued to Newmont Exploration Limited, Newmont

Mining Corporation, and Newmont Gold Company (Respondents). The

Respondents consent to and will not contest EPA's jurisdiction to issue

this Consent Order or to implement or enforce its terms.

II. Statement of Purpose

3. By entering into this Consent Order, the mutual objectives of

the Parties are:

a. to reach a final de micromis settlement between the Parties with

respect to the Site pursuant to Section 122(g) of CERCLA, 42 U.S.C.

9622(g), which resolves Respondents potential civil liability under

Sections 106 and 107 of CERCLA, 42 U.S.C. 9606 and 9607 and Section

7003 of the Resource Conservation and Recovery Act, as amended, 42

U.S.C. 6973, for injunctive relief with regard to the Site, and for

response costs incurred and to be incurred at or in connection with the

Site, thereby reducing litigation relating to the Site;

b. to simplify any remaining administrative and judicial

enforcement activities concerning the Site by eliminating the

potentially responsible parties covered by this Order from further

involvement at the Site; and

c. to protect Respondents, and to the extent provided herein, their

affliates, successors and assigns, from any lawsuit a potentially

responsible party could bring against them for response costs incurred

and to be incurred at or in connection with the Site and to provide

full and complete contribution protection for Respondents, and to the

extent provided herein, their affliates, successors and assigns, with

regard to the Site pursuant to Sections 122(f)(2) and 122(g)(5) of

CERCLA, 42 U.S.C. 9622(f)(2) and 9622(g)(5).

III. Definitions

Unless otherwise expressly provided herein, terms used in this

Consent Order that are defined in CERCLA or in regulations promulgated

under CERCLA shall have the meaning assigned to them in the statute or

regulations. Whenever the terms listed below are used in this Consent

Order, the following definitions shall apply:

CERCLA shall mean the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601, et

seq.

Consent Order or Order shall mean this Administrative Order on

Consent and all appendices attached hereto. In the event of conflict

between this Order and any appendix, the Order shall control.

Day shall mean a calendar day. In computing any period of time

under this Consent Decree, where the last day would fall on a Saturday,

Sunday or federal holiday, the period shall run until the close of

business of the next working day.

EPA shall mean the United States Environmental Protection Agency

and any successor departments or agencies.

EPA Hazardous Substance Superfund shall mean the Hazardous

Substance Superfund established by the Internal Revenue Code, 26 U.S.C.

9507.

Information currently known to the United States shall mean that

information and those documents contained in the Administrative Record

and Site File for the Site as of the effective date of this Order.

New Information shall mean information not contained in the

Administrative Record or Site File for the Site as of the effective

date of this Order.

Paragraph shall mean a portion of this Consent Order identified by

an Arabic numeral.

Parties shall mean EPA and the Respondents.

Respondents shall mean Newmont Exploration Limited, Newmont Mining

Corporation, and Newmont Gold Company.

Response Costs shall mean all costs of ``response'' as that term is

defined by Section 101(25) of CERCLA.

Section shall mean a portion of this Consent Order identified by a

Roman numeral.

Site shall mean the Summitville Mine Superfund Site Remedial

Investigation/Feasibility Study Area within Rio Grande County,

Colorado. Approximately 550 acres of the Site, known as the Summitville

Minesite, have been disturbed by mining activities and are currently

undergoing remedial action. As depicted on the map attached as Appendix

A, the Site consists of portions of the Alamosa River Watershed EPA

believes may have been impacted by releases of hazardous substances

from the Summitville Minesite. More specifically, the Site includes the

following areas: Area 1--Summitville Mine Site--The area within the

mine permit boundaries; Area 2--Wightman Fork-The Wightman Fork and

associated wetlands between the down stream mine permit boundary to the

confluence with the Alamosa River; Area 3--Alamosa River-The Alamosa

River and associated wetlands from the confluence with the Wightman

Fork downstream to the inlet of the Terrace Reservoir; Area 4--Terrace

Reservoir-The area which contains the Terrace Reservoir; and Area 5--

Below Terrace

[[Page 62597]]

Reservoir-The area below the Terrace Reservoir which has been impacted

by contamination transported by the Alamosa River and irrigation

canals.

United States shall mean the United States of America, including

its departments, agencies and instrumentalities.

IV. Statement of Facts

4. The United States Environmental Protection Agency (EPA)

initiated removal response actions at the Site on December 18, 1992 to

address releases or threatened releases of hazardous substances into

the Alamosa River and surrounding environment pursuant to the

President's authority under Sections 104 and 106 of the Comprehensive

Environmental Response, Compensation, and Liability Act of 1980, as

amended by the Superfund Amendments and Reauthorization Act of 1986,

Pub. L. 99-499, 42 U.S.C. 9604 and 9606 (CERCLA).

5. On May 31, 1994, EPA listed the Site on the National Priorities

List as a result of releases or threatened releases of hazardous

substances at or from the Site.

6. On December 15, 1994, EPA issued four Interim Records of

Decision selecting the interim remedial actions to be implemented for

the following activities and/or areas at the Summitville Mine Site:

Water Treatment (WT IROD), Reclamation, the Heap Leach Pad (HLP IROD)

and the Cropsy Waste Pile, Beaver Mud Dump/Summitville Dam Impoundment,

and Mine Pits (CWP IROD).

7. As of March 31, 1997, the United States incurred approximately

$109 million in response costs responding to the release or threatened

release of hazardous substances at or in connection with the Site. The

United States continues to incur response costs in responding to the

release or threat of release of hazardous substances at or in

connection with the Site.

8. Newmont Exploration Limited (NEL) conducted extremely limited

exploration activities at the Site. NEL was previously a wholly owned

subsidiary of Newmont Mining Corporation and is currently a wholly

owned subsidiary of Newmont Gold Company.

9. Newmont Exploration Limited leased some property within the Site

for approximately seven months from June 1953 to January 1954. Pursuant

to the lease, limited exploratory activities were conducted, including

conducting nonintrusive geophysical surveys of the area, collecting

small surface soil and rock samples for assaying, drilling

approximately nine small diameter exploratory holes and conducting

limited reconnaissance examinations of portions of the underground mine

workings. Exploratory drilling activities such as those conducted at

the Site are designed to collect core samples to evaluate the geology

of the area. Respondents assert that such exploratory activities did

not generate mine wastes.

10. The total volume of waste rock, tailings and other mine waste

(including the Heap Leach Pad) requiring remediation at the Site is

approximately 11 million cubic yards. According to the WT IROD,

approximately 321,000 pounds of copper per year, if left untreated,

would contaminate the receiving waters surrounding the Site, including

the Wightman Fork and Alamosa River. EPA has determined parties are

eligible for a de minimis settlement if their contribution of mine

waste and metals loading is equal to or less than 3% of the total

volume of hazardous substances contributed to each of these media. The

Respondents' contribution of hazardous substances to these media is

below the 3% de minimis cut-off established by EPA for the Site. De

micromis parties are parties that have generated less than .0001% of

the hazardous substances found at the Site. Respondents' alleged

contribution is less than .0001% of the hazardous substances found at

the Site.

11. Based on information currently known to the United States, EPA

has calculated the Respondents' de micromis eligibility as follows:

Respondents assert that the activities of NEL did not contribute any

mine wastes to the Site. Even assuming a worst case scenario where all

of the materials generated by NEL's exploration activity were deposited

at the Site, EPA has estimated that the amount of hazardous substances

allegedly contributed to the Site by Respondents constitutes

substantially less than .0001% of the total volume of waste rock,

tailings or mine waste requiring remediation at the Site. EPA has also

determined that the Respondents' activities have not contributed any

copper loading to the waters at or emanating from the Site.

12. The material allegedly generated and disposed of by the

Respondents therefore involves only a minuscule portion of the total

hazardous substances generated or disposed of at the Site. EPA has also

concluded that the hazardous substances allegedly contributed to the

Site by Respondents are not significantly more toxic or of

significantly greater hazardous effect than other hazardous substances

at the Site.

13. EPA estimates that the total response costs incurred and to be

incurred at or in connection with the Site by the EPA Hazardous

Substance Superfund will be $152 million. EPA has determined that the

amount of waste which may have been contributed to the Site by the

Respondents is so minor that it would be inequitable to require them to

help finance or perform cleanup at the Site.

V. Determination

14. Based upon the Statement of Facts set forth above and on the

information currently known to the United States, EPA has determined

that:

(1) The Site is a ``facility'' as that term is defined in Section

101(9) of CERCLA, 42 U.S.C. 9601(9).

(2) Each of the Respondents is a ``person'' as that term is defined

in Section 101(21) of CERCLA, 42 U.S.C. 9601(21).

(3) Each of the Respondents may be a ``potentially responsible

party'' within the meaning of Section 122(g)(1) of CERCLA, 42 U.S.C.

9622(g)(1).

(4) There has been an actual or threatened ``release'' of a

``hazardous substance'' from the Site as those terms are defined in

Sections 101 (22) and (14) of CERCLA, 42 U.S.C. 9601 (22) and (14).

(5) The amount of hazardous substances contributed to the Site by

the Respondents and the toxic or other hazardous effects of the

hazardous substances contributed to the Site by the Respondents are

minuscule in comparison to other hazardous substances at the Site

within the meaning of Section 122(g)(1)(A) of CERCLA, 42 U.S.C.

9622(g)(1)(A).

(6) Respondents are eligible for a de micromis settlement because

they have contributed no more than a minuscule amount of hazardous

substance, if any, to the Site.

(7) The terms of this Consent Order are consistent with EPA policy

and guidance for settlements with de micromis waste contributors,

including but not limited to, ``Revised Guidance on CERCLA Settlements

with De Micromis Waste Contribution,'' OSWER Directive #9834.17 (June

3, 1996).

(8) Prompt final settlement with the Respondents is practicable and

in the public interest within the meaning of Section 122(g)(1) of

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

(9) The settlement of this case without litigation and without the

admission or adjudication of any issue of fact or law is the most

appropriate means of resolving any liability that the Respondents may

have for response actions and response costs with respect

[[Page 62598]]

to all releases or threatened releases at or in connection with the

Site.

VI. Order

15. Based upon the Information currently known to the United States

and the Statement of Facts and Determinations set forth above, and in

consideration of the promises and covenants set forth herein, the

following is hereby Agreed to and Ordered;

VII. Parties Bound

16. This Consent Order shall apply to and be binding upon EPA and

upon Respondents and their successors and assigns. Any change in

ownership or corporate or other legal status of the Respondents

including, but not limited to, any transfer of assets or real or

personal property, shall in no way alter such Respondents'

responsibilities under this Consent Order. Each signatory to this

Consent Order certifies that he or she is authorized to enter into the

terms and conditions of this Consent Order and to execute and bind

legally the party represented by him or her.

VIII. Certification of Respondents

17. By signing this Consent Order, the Respondents certify that, to

the best of their knowledge and belief, they have:

i. conducted a thorough, comprehensive, good faith search for

documents, and have fully and accurately disclosed to EPA, all non-

privileged documents currently in their possession, or in the

possession of their officers, directors, employees, contractors or

agents, which relate in any way to their liabilities under CERCLA and

RCRA for ownership, operation, exploration activities or control of the

Site;

ii. not altered, mutilated, discarded, destroyed, or otherwise

disposed of any records, documents, or other information relating to

their potential CERCLA and RCRA liabilities regarding the Site after

notification of such potential liabilities; and

iii. fully complied to EPA's satisfaction with any and all EPA

requests for information pursuant to Sections 104(e) and 122(e) of

CERCLA, 42 U.S.C. 9604(e) and 9622(e).

IX. Covenants Not To Sue

18. a. Except as provided in Section X (Reservation of Rights) of

this Order, the United States covenants not to sue or take any other

civil or administrative action against the Respondents for

reimbursement of response costs or for injunctive relief pursuant to

Section 106 or 107(a) of CERCLA, 42 U.S.C. 9606 or 9607(a) or Section

7003 of the Resource Conservation and Recovery Act, as amended, 42

U.S.C. 6973, relating to the Site.

b. The United States' covenant not to sue extends to Respondents

and to their affiliates, successors and assigns, but only to the extent

that the liability of such affiliates, successors and assigns is

derivative of Respondents' liability for those acts set forth in

Paragraph 9, Section IV of this Order. The United States' covenant not

to sue does not extend to any other person.

X. Reservation of Rights

19. The covenant not to sue by the United States set forth in

Paragraph 18 of this Order does not pertain to any matters other than

those expressly specified in Paragraph 18. The United States reserves,

and this Order is without prejudice to, all rights against the

Respondents with respect to all other matters, including but not

limited to the following:

(a) criminal liability;

(b) any liability against Respondents that results from their future

disposal activities at the Site; or

natural resources, including any cost of assessing the injury to,

destruction of, or loss of such natural resources.

20. Notwithstanding any other provision in this Consent Order, the

United States reserves, and this Consent Order is without prejudice to,

the right to institute judicial or administrative proceedings against

the Respondents seeking to compel Respondents to perform response

actions at the Site and/or to reimburse the United States for response

costs if New Information is discovered that the Respondents no longer

qualify for a de micromis settlement under the criteria stated in

Paragraphs 10-12 of this Order.

21. For purposes of Paragraph 20, ``New Information'' shall not

include any recalculation of the total volume of waste rock, tailings

or mine waste containing hazardous substances requiring remediation at

the Site based solely on Information currently known to the United

States.

XI. Covenant Not To Sue By Respondents

22. The Respondents covenant not to sue and agree not to assert any

claims or causes of action against the United States, or its

contractors or employees with respect to the Site or this Order,

including, but not limited to:

i. any direct or indirect claim for reimbursement from the

Hazardous Substance Superfund (established pursuant to the Internal

Revenue Code, 26 U.S.C. 9507) through Sections 106(b)(2) , 111, 112 or

113 of CERCLA, 42 U.S.C. 9606(b)(2) , 9611, 9612 or 9613;

ii. any claim arising out of response activities at the Site; and

iii. any claim against the United States pursuant to Sections 107

or 113 of CERCLA, 42 U.S.C. 9607 or 9613, relating to the Site.

23. Nothing in this Order shall be deemed to constitute

preauthorization of a claim within the meaning of Section 111 of

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

24. The Respondents also waive any challenge they may have to any

response action selected in any Action Memorandum, Interim Record of

Decision or final Record of Decision for the Site.

XII. Effect of Settlement; Contribution Protection

25. Nothing in this Order shall be construed to create any rights

in, or grant any cause of action to, any person not a party to this

Order. The preceding sentence shall not be construed to waive or

nullify any rights that any person not a signatory to this Order may

have under applicable law. The United States and the Respondents each

reserve any and all rights (including, but not limited to, any right to

contribution), defenses, claims, demands and causes of action which

each party may have with respect to any matter, transaction, or

occurrence relating in any way to the Site against any person not a

party hereto.

26. Respondents consent and agree to comply with and be bound by

the term of this Order. The United States and the Respondents agree

that this Order, Respondents' consent to this Order and actions in

accordance with this Order shall not in any way constitute or be

construed as an admission of any liability by Respondents or of any

legal or factual matters set forth in this Order. Further, neither this

Order, Respondents' consent to this Order, nor Respondents' actions in

accordance with this Order shall be admissible in evidence against

Respondents without their consent, except in a proceeding to enforce

this Order. Respondents do not admit, and retain the right to

controvert in any subsequent proceedings other than proceedings to

implement or enforce this Consent Order, the validity of the Statement

of Facts and Determinations contained in this Consent Order.

27. With regard to claims for contribution against Respondents and

their affiliates, successors and assigns for matters addressed by this

Order, the Parties hereto agree that Respondents

[[Page 62599]]

and their affiliates, successors and assigns are entitled, as of the

effective date this Order, to such protection from contribution actions

or claims as is provided by Sections 113(f)(2) and 122(g)(5) of CERCLA,

42 U.S.C. 9613(f)(2) and 9622(g)(5) for ``matters addressed'' in this

Consent Order. ``Matters addressed'' by this Order shall include all

claims the United States has taken or brought or could bring or any

other civil or administrative action the United States could take

against Respondents, or their affiliates, successors and assigns only

to the extent that their liability is derivative of Respondents'

liability for those acts set forth in Paragraph 9, Section IV of this

Order, for injunctive relief or for reimbursement of response costs

pursuant to Section 106 or 107(a) of CERCLA, 42 U.S.C. 9606 or 9607(a)

or Section 7003 of the Resource Conservation and Recovery Act, as

amended, 42 U.S.C. 6973, related to the Site.

XIII. Public Comment

28. This Order shall be subject to a thirty-day public comment

period in accordance with Section 122(i) of CERCLA, 42 U.S.C. 9622(i).

In accordance with Section 122(i)(3), 42 U.S.C. 9622(i)(3), EPA may

withdraw or modify its consent to this order if comments received

disclose any facts or considerations which indicate that this Order is

inappropriate, improper, or inadequate.

XIV. Attorney General Approval

29. The Attorney General or her designee has approved the

settlement embodied in this order in accordance with Section 122(g)(4)

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

XV. Effective Date

30. The effective date of this Order shall be the date upon which

the Assistant Regional Administrator, EPA Region VIII notifies the

Respondents that the public comment period undertaken pursuant to

Paragraph 28 of this Order has closed and that comments received, if

any, do not require EPA's withdrawal from or the modification of any

terms of this Order.

It is so agreed:

Newmont Mining Corporation, Newmont Exploration Limited and Newmont

Gold Company.

Dated: July 28, 1997.

Joy E. Hansen,

Vice President.

It is so ordered and agreed:

Environmental Protection Agency, Region VIII.

Dated: September 2, 1997.

Martin Hestmark, for Carol Rushin,

Assistant Regional Administrator, Office of Enforcement, Compliance and

Environmental Justice.

CERCLA Section 122(g)(4) De Minimis Waste Contributor Administrative

Order

In The Matter Of: Summitville Mine Superfund Site, Site No. 08-

Y3; ARCO Environmental Remediation, L.L.C.; Respondent.

Proceeding Under Section 122(g)(4) Of The Comprehensive

Environmental Response, Compensation, And Liability Act, As Amended

(42 U.S.C. 9622(g)(4)). EPA Docket Number CERCLA-VIII-98-03.

I. Jurisdiction

1. This Administrative Order on Consent (Consent Order or Order) is

issued pursuant to the authority vested in the President of the United

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

Response, Compensation, and Liability Act of 1980, as amended (CERCLA),

42 U.S.C. 9622(g)(4), to reach settlements in actions under Section 106

or 107 of CERCLA, 42 U.S.C. 9606 or 9607. The authority vested in the

President has been delegated to the Administrator of the United States

Environmental Protection Agency (EPA) by Executive Order 12580, 52 FR

2923 (Jan. 29, 1987), and further delegated to the Regional

Administrators of the EPA by EPA Delegation No. 14-14-E. This authority

has been redelegated to the Assistant Regional Administrator for

Ecosystems Protection and Remediation.

2. This Order is issued to ARCO Environmental Remediation, L.L.C.

(Respondent). The Respondent agrees to undertake all actions required

by this Consent Order. The Respondent further consents to and will not

contest EPA's jurisdiction to issue this Consent Order or to implement

or enforce its terms.

II. Statement of Purpose

3. By entering into this Consent Order, the mutual objectives of

the Parties are:

a. to reach a final settlement between the Parties with respect to

the Site pursuant to Section 122(g) of CERCLA, 42 U.S.C. 9622(g), that

allows Respondent to make a cash payment, including a premium, to

resolve its alleged civil liability under Sections 106 and 107 of

CERCLA, 42 U.S.C. 9606 and 9607 and Section 7003 of the Resource

Conservation and Recovery Act, as amended, 42 U.S.C. 6973, for

injunctive relief with regard to the Site, and for response costs

incurred and to be incurred at or in connection with the Site, thereby

reducing litigation relating to the Site;

b. to simplify any remaining administrative and judicial

enforcement activities concerning the Site by eliminating one of the

potentially responsible parties from further involvement at the Site;

and

c. to obtain settlement with Respondent for its fair share, as

determined by EPA, of response costs incurred and to be incurred at or

in connection with the Site by the EPA Hazardous Substance Superfund,

and to provide full and complete contribution protection for Respondent

with regard to the Site pursuant to Sections 122(f)(2) and 122(g)(5) of

CERCLA, 42 U.S.C. 9622(f)(2) and 9622(g)(5).

III. Definitions

Unless otherwise expressly provided herein, terms used in this

Consent Order that are defined in CERCLA or in regulations promulgated

under CERCLA shall have the meaning assigned to them in the statute or

regulations. Whenever the terms listed below are used in this Consent

Order, the following definitions shall apply:

CERCLA shall mean the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601, et

seq.

Consent Order or Order shall mean this Administrative Order on

Consent and all appendices attached hereto. In the event of conflict

between this Order and any appendix, the Order shall control.

Day shall mean a calendar day. In computing any period of time

under this Consent Decree, where the last day would fall on a Saturday,

Sunday, or federal holiday, the period shall run until the close of

business of the next working day.

EPA shall mean the United States Environmental Protection Agency

and any successor departments or agencies.

EPA Hazardous Substance Superfund shall mean the Hazardous

Substance Superfund established by the Internal Revenue Code, 26 U.S.C.

9507.

Information currently known to the United States shall mean that

information and those documents contained in the Administrative Record

and Site File for the Site as of the effective date of this Order.

Interest shall mean interest at the rate specified for interest on

investments of the EPA Hazardous Substance Superfund established by 26

U.S.C. 9507, compounded on October 1 of each year, in accordance with

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

[[Page 62600]]

New Information shall mean information not contained in the

Administrative Record or Site File for the Site as of the effective

date of this Order.

Paragraph shall mean a portion of this Consent Order identified by

an Arabic numeral.

Parties shall mean EPA and the Respondent.

Respondent shall mean ARCO Environmental Remediation, L.L.C.

Response Costs shall mean all costs of ``response'' as that term is

defined by Section 101(25) of CERCLA.

Section shall mean a portion of this Consent Order identified by a

roman numeral.

Site shall mean the Summitville Mine Superfund Site Remedial

Investigation/Feasibility Study Area within Rio Grande County,

Colorado. Approximately 550 acres of the Site, known as the Summitville

Minesite, have been disturbed by mining activities and is currently

undergoing remedial action. As depicted on the map attached as Appendix

A, the Site consists of portions of the Alamosa River Watershed EPA

believes may have been impacted by releases of hazardous substances

from the Summitville Minesite. More specifically, the Site includes the

following areas: Area 1-Summitville Mine Site--The area within the mine

permit boundaries; Area 2-Wightman Fork--The Wightman Fork and

associated wetlands between the down stream mine permit boundary to the

confluence with the Alamosa River; Area 3-Alamosa River--The Alamosa

River and associated wetlands from the confluence with the Wightman

Fork downstream to the inlet of the Terrace Reservoir; Area 4-Terrace

Reservoir--The area which contains the Terrace Reservoir; and Area 5-

Below Terrace Reservoir--The area below the Terrace Reservoir which has

been impacted by contamination transported by the Alamosa River and

irrigation canals.

United States shall mean the United States of America, including

its departments, agencies and instrumentalities.

IV. Statement of Facts

EPA's Response Actions and Costs

4. The United States Environmental Protection Agency (EPA)

initiated removal response actions at the Site on December 18, 1992 to

address releases or threatened releases of hazardous substances into

the Alamosa River and surrounding environment pursuant to the

President's authority under Sections 104 and 106 of the Comprehensive

Environmental Response, Compensation, and Liability Act of 1980, as

amended by the Superfund Amendments and Reauthorization Act of 1986,

Pub. L. 99-499, 42 U.S.C. 9604 and 9606(a) (CERCLA).

5. On May 31, 1994, EPA listed the Site on the National Priorities

List as a result of releases or threatened releases of hazardous

substances at or from the Site.

6. On December 15, 1994, EPA issued 4 Interim Records of Decision

selecting the interim remedial actions to be implemented for the

following activities and/or areas at the Summitville Mine Site: Water

Treatment (WT IROD), Reclamation, the Heap Leach Pad (HLP IROD) and the

Cropsy Waste Pile, Beaver Mud Dump/Summitville Dam Impoundment, and

Mine Pits (CWP IROD).

7. As of March 31, 1997, the United States had incurred

approximately $109 million in response costs responding to the release

or threatened release of hazardous substances at or in connection with

the Site. The United States continues to incur response costs in

responding to the release or threat of release of hazardous substances

at or in connection with the Site.

Respondent's Activities and Potential Liability

8. EPA alleges that the Respondent is liable for reimbursement of

the United States' response costs pursuant to Section 107 of CERCLA, 42

U.S.C. 9607.

9. From mid-1979 until the latter part of 1983, Respondent's

predecessor-in-interest, Anaconda Minerals Company (Anaconda),

conducted exploration and related activities at the Site. Due to Site

access limitations, severe weather and other adverse Site conditions,

Anaconda's actual on-Site exploration activities were conducted for an

aggregate period of approximately 17 months, with this period generally

coinciding with the summer season of each of the years of 1979 through

1983.

10. Anaconda's exploration and related activities at the Site, as

referred to in Paragraph 9 above, consisted of: (1) a core drilling

program, consisting of the development of 380 drill holes. In

accordance with the Colorado Mined Land Reclamation Division

regulations applicable at the time, these surface drill holes were

properly plugged with cement and abandoned; (2) limited access to and

exploration of certain underground mine workings, including the Science

Mine, Copper Hill Mine, Dexter Mine, Esmond Mine and Chandler Mine, for

the purpose of mapping and sampling these workings only; (3) related

on-Site activities such as access road maintenance and road

construction; and (4) implementation of a hazard elimination program at

the Site, including tailings dam stabilization work.

11. Based on Anaconda's findings from these limited exploration and

related activities, Anaconda determined it would not be profitable to

initiate mining operations at the Site. Accordingly, Anaconda

terminated or assigned its leasehold interest in the Site in early

1984, without conducting any ore extraction or physical mine

development activities.

12. Anaconda's surface drilling activities resulted in the

generation of, at most, 363 cubic yards of waste rock, which may have

remained on-Site. Waste rock extracted at the Site was mixed with

cement and used to properly plug and close the drill holes, accordance

with the Colorado Mined Land Reclamation Division regulations

applicable at the time. Summitville Consolidated Mining Company Inc.

subsequently mined, milled, processed or otherwise disturbed this same

waste rock as a result of its unrelated mining operations.

De Minimis Eligibility

13. The total volume of waste rock, tailings and other mine waste

(including the Heap Leach Pad) requiring remediation at the Site is

approximately 11 million yds.\3\ Four million, five hundred thousand

cubic yards of this material is being remediated pursuant to the CWP

IROD; 6.5 million cubic yards are being remediated pursuant to the HLP

IROD.

14. According to the WT IROD, approximately 321,000 pounds of

copper per year, if left untreated, would contaminate the receiving

waters surrounding the Site, including the Wightman Fork and Alamosa

River.

15. EPA has determined parties are eligible for a de minimis

settlement if their contribution of mine waste and metals loading is

equal to or less than 3% of the total volume of hazardous substances

contributed to each of these media.

16. EPA has determined that the Respondent's contribution of

hazardous substances to each of these media is below the 3% de minimis

cut-off established by EPA for the Site.

17. Based on Information currently known to the United States, EPA

has calculated the Respondent's de minimis eligibility as follows: (1)

assuming all waste rock, approximately 363 cubic yards, generated by

Anaconda during its drilling program remained on-Site, EPA has

estimated that the amount of hazardous substances allegedly contributed

to the Site by Respondent

[[Page 62601]]

constitutes approximately .0033% of the total volume of waste rock,

tailings or mine waste requiring remediation at the Site; and (2)

because Anaconda's drill holes were properly plugged and it did not

rehabilitate or otherwise undertake mining operations in adits, tunnels

or mine workings hydraulically connected to the Reynolds Adit, the

Respondent's activities have not contributed any copper loading to the

waters at or emanating from the Site.

18. As required by Section 122(g)(1) of CERCLA, 42 U.S.C.

9622(g)(1), EPA has therefore determined that: (A) the amount of

material allegedly contributed by the Respondent is minimal in

comparison to the total hazardous substances generated or disposed of

at the Site; and (B) the toxic or hazardous effect of the hazardous

substances allegedly contributed to the Site by Respondent are minimal

in comparison to the other hazardous substances at the Site.

19. Section 122(g)(1) of CERCLA, 42 U.S.C. 9622(g)(1), further

authorizes EPA to enter into expedited settlements under Sections 106

and 107 of CERCLA if such settlements involve only a minor portion of

the response costs at the facility concerned. EPA estimates that the

total response costs incurred and to be incurred at or in connection

with the Site by the EPA Hazardous Substance Superfund will be $152

million. EPA calculated the settlement amount to be paid by Respondent

as follows: EPA and Respondent agree that the material generated and

disposed of by Respondent came to be located in the areas to be

remediated pursuant to CWP and HLP IRODs. EPA and Respondent estimated

that of the 363 cubic yards of material generated and disposed of by

Respondent on the Site, 123 cubic yards came to be located in the area

to be remediated by the CWP and 240 cubic yards came to be located in

the HLP. EPA then calculated the appropriate settlement amount by: (a)

taking the amount it cost to remediate Respondent's volumetric share of

the CWP; (b) calculating the cost EPA will incur to remediate

Respondent's volumetric share of the HLP; (c) adding a percentage for

Respondent's share of Sitewide costs; (d) estimating the enforcement

costs associated with negotiating and finalizing this AOC; and (e)

applying a 100% ``premium'' payment to Respondent's share of those

estimated costs not yet incurred by EPA. In accordance with applicable

EPA guidance, this 100% ``premium'' payment on estimated costs to be

incurred provides consideration for EPA's granting the Respondent a

covenant not to sue without the normal remedy cost overrun reopener.

20. Based on the factors identified in Paragraph 19 above, EPA

determined that the appropriate amount to settle Respondent's potential

CERCLA Section 106 and 107 and RCRA Section 7003 liabilities is

$95,000. The settlement amount required to be paid by the Respondent

pursuant to this Order therefore represents only a minor portion of the

response costs to be recovered for the cleanup of the Site.

V. Determinations

21. Based upon the Statement of Facts set forth above and on the

Information currently known to the United States, EPA has determined

that:

(1) The Site is a ``facility'' as that term is defined in Section

101(9) of CERCLA, 42 U.S.C. 9601(9).

(2) The Respondent is a ``person'' as that term is defined in

Section 101(21) of CERCLA, 42 U.S.C. 9601(21).

(3) The Respondent is a ``potentially responsible party'' within

the meaning of Section 122(g)(1) of CERCLA, 42 U.S.C. 9622(g)(1).

(4) There has been an actual or threatened ``release'' of a

``hazardous substance'' from the Site as those terms are defined in

Sections 101 (22) and (14) of CERCLA, 42 U.S.C. 9601 (22) and (14).

(5) The amount of hazardous substances contributed to the Site by

the Respondent and the toxic or other hazardous effects of the

hazardous substances contributed to the Site by the Respondent are

minimal in comparison to other hazardous substances at the Site within

the meaning of Section 122(g)(1)(A) of CERCLA, 42 U.S.C. 9622(g)(1)(A).

(6) As to the Respondent, this Consent Order involves only a minor

portion of the response costs at the Site within the meaning of Section

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

(7) The terms of this Consent Order are consistent with EPA policy

and guidance for settlements with de minimis waste contributors,

including but not limited to, ``Standardizing the De Minimis Premium,''

(July 7, 1995), ``Streamlined Approach for Settling with De Minimis

Waste Contributors under CERCLA Section 122(g)(1)(A),'' OSWER Directive

No. 9834.7-1D (July 30, 1993), and ``Methodology for Early De Minimis

Waste Contributor Settlements under CERCLA Section 122(g)(1)(A),''

OSWER Directive No. 9834.7-1C (June 2, 1992).

(8) Prompt settlement with the Respondent is practicable and in the

public interest within the meaning of Section 122(g)(1) of CERCLA, 42

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

(9) The settlement of this case without litigation and without the

admission or adjudication of any issue of fact or law is the most

appropriate means of resolving any liability that the Respondent may

have for response actions and response costs with respect to all

releases or threatened releases at or in connection with the Site.

VI. Order

22. Based upon the Information currently known to the United States

and the Statement of Facts and Determinations set forth above, and in

consideration of the promises and covenants set forth herein, the

following is hereby Agreed to and Ordered:

VII. Parties Bound

23. This Consent Order shall apply to and be binding upon EPA and

upon Respondent and its successors and assigns. Any change in ownership

or corporate or other legal status of the Respondent including, but not

limited to, any transfer of assets or real or personal property, shall

in no way alter such Respondent's responsibilities under this Consent

Order. Each signatory to this Consent Order certifies that he or she is

authorized to enter into the terms and conditions of this Consent Order

and to execute and bind legally the party represented by him or her.

VIII. Payment

24. Within 10 days of the effective date of this Order, Respondents

shall pay a total of $95,000 to the Hazardous Substance Superfund as

provided below.

25. Payment shall be made by cashier's check made payable to ``EPA

Hazardous Substance Superfund.'' The check shall reference the Site

name, the name and address of the Respondent, EPA CERCLA Number 08-Y3

and DOJ Case No. 90-11-3-1133A and shall be sent to: Mellon Bank, EPA

Region VIII, Attn: Superfund Accounting, P.O. Box 360859M, Pittsburgh,

PA 15251.

26. If the Respondent fails to make full payment within the time

required by Paragraph 25, Respondent shall pay Interest on the unpaid

balance. In addition, if Respondent fails to make full payment as

required by Paragraph 25, the United States may, in addition to any

other available remedies or sanctions, bring an action against the

Respondent seeking injunctive relief to compel payment and/or seeking

civil penalties under Section 122(l) of CERCLA, 42 U.S.C. 9622(l), for

failure to make timely payment.

[[Page 62602]]

27. The Respondents' payment includes an amount representing the

Respondent's fair share of: (a) past response costs incurred at or in

connection with the Site; (b) projected future response costs to be

incurred at or in connection with the Site; and (c) a significant

premium to cover the risks associated with this settlement, including

but not limited to, the risk that total response costs incurred or to

be incurred at or in connection with the Site by the EPA Hazardous

Substance Superfund, or by any private party, will exceed the estimated

total response costs upon which Respondent's payment is based.

28. Payments made under this Section may be placed in a site-

specific ``special'' or ``reimbursable'' account by EPA. This site-

specific reimbursable account within the EPA Hazardous Substance

Superfund shall be known as the Summitville Mine Superfund Site Special

Account and shall be retained and used by EPA to conduct or finance the

response actions at or in connection with the Site. Upon completion of

the final remedial action for the Site, any balance remaining in the

Summitville Mine Superfund Site Special Account shall be transferred by

EPA to the general EPA Hazardous Substance Superfund.

IX. Certification of Respondents

29. By signing this Consent Order, the Respondent certifies, that,

to the best of its knowledge and belief, it has:

(1) conducted a thorough, comprehensive, good faith search for

documents, and has fully and accurately disclosed to EPA, all non-

privileged documents currently in its possession, or in the possession

of its officers, directors, employees, contractors or agents, which

relate in any way to its liability under CERCLA and RCRA for ownership,

operation, exploration activities or control of the Site;

(2) not altered, mutilated, discarded, destroyed or otherwise

disposed of any records, documents, or other information relating to

its potential CERCLA and RCRA liability regarding the Site after

notification of such potential liability; and

(3) fully complied to EPA's satisfaction with any and all EPA

requests for information pursuant to Sections 104(e) and 122(e) of

CERCLA, 42 U.S.C. 9604(e) and 9622(e).

X. Covenants Not To Sue

30. a. Except as provided in Section XI (Reservation of Rights) of

this Order, the United States covenants not to sue or take any other

civil or administrative action against the Respondent for reimbursement

of response costs or for injunctive relief pursuant to Section 106 or

107(a) of CERCLA, 42 U.S.C. 9606 or 9607(a) or Section 7003 of the

Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6973,

relating to the Site. With respect to present and future liability,

this covenant not to sue shall take effect upon full payment of the

amount specified in Section VII (Payment) of this Order.

b. The United States' covenant not to sue extends to Respondent,

and to its predecessors-in-interest, affiliates, successors and

assigns, including the Anaconda Minerals Company and the Atlantic

Richfield Company, only to the extent that the liability of such

predecessors-in-interest, affiliates, successors and assigns is

derivative of Respondent's liability for those acts of Anaconda

Minerals Company as set forth in Paragraph 9-12, Section IV of this

Order. The United States' covenant not to sue does not extend to any

other person.

XI. Reservation of Rights

31. The covenants not to sue by the United States set forth in

Paragraph 30 of this Order do not pertain to any matters other than

those expressly specified in Paragraph 30. The United States reserves,

and this Order is without prejudice to, all rights against the

Respondent with respect to all other matters, including but not limited

to the following:

(a) claims based on a failure to make the payments required by

Section VII (Payment) of this Order;

(b) criminal liability;

disposal activities at the Site; or

(d) liability for damages for injury to, destruction of, or loss of

natural resources, including any cost of assessing the injury to,

destruction of, or loss of such natural resources.

32. Notwithstanding any other provision in this Consent Order, the

United States reserves, and this Consent Order is without prejudice to,

the right to institute judicial or administrative proceedings against

the Respondent seeking to compel Respondent to perform response actions

at the Site and/or to reimburse the United States for additional costs

of response if New Information is discovered that the Respondent

contributed: (a) hazardous substances in an amount greater than 1% of

the total volume of waste rock, tailings or mine waste containing

hazardous substances requiring remediation at the Site; or (b)

hazardous substances that contributed to the total copper loading to

the waters at or emanating from the Site; or (c) hazardous substances

at the Site which are significantly more toxic or are of significantly

greater hazardous effect that other hazardous substances at the Site.

33. For purposes of Paragraph 32, ``New Information'' shall not

include: (1) any recalculation of the total volume of waste rock,

tailings or mine waste containing hazardous substances requiring

remediation at the Site based solely on Information currently known to

the United States; (2) any recalculation of the Respondent's

contribution of waste rock, tailings or mine waste containing hazardous

substances requiring remediation at the Site based solely on

Information currently known to the United States; or (3) a calculation

of Anaconda's activities giving rise to a contribution to the total

copper loading to the waters at or emanating from the Site based solely

on Information currently known to the United States.

34. In the event the United States institutes judicial or

administrative proceedings against the Respondent pursuant to Paragraph

32 above, the Respondent shall:

(i) be credited, in any subsequent settlement or administrative or

judicial proceeding relating to the Site, with the $95,000 payment made

pursuant to Paragraph 24 of this Order;

(ii) retain any defense it may have to liability and any claim it

may have under any applicable statute or the common law with regard to

any additional amount demanded by the United States in any subsequent

administrative or judicial proceeding relating to the Site; and

(iii) continue to grant any waiver or covenant previously granted

to the United States under Section XI of this Order for the amount

credited to the Respondent, but such waiver or covenant shall be null

and void as to any additional amount demanded by the United States in

any subsequent administrative or judicial proceeding relating to the

Site.

XII. Covenant Not To Sue By Respondent

35. The Respondent covenants not to sue and agrees not to assert

any claims or causes of action against the United States, or its

contractors or employees with respect to the Site or this Order,

including, but not limited to:

(1) any direct or indirect claim for reimbursement from the

Hazardous Substance Superfund (established pursuant to the Internal

Revenue Code, 26 U.S.C. 9507) through Sections 106(b)(2), 111, 112 or

113 of CERCLA,

[[Page 62603]]

42 U.S.C. 9606(b)(2), 9611, 9612 or 9613;

(2) any claim arising out of response activities at the Site; and

(3) any claim against the United States pursuant to Sections 107 or

113 of CERCLA, 42 U.S.C. 9607 or 9613, relating to the Site.

36. Nothing in this Order shall be deemed to constitute

preauthorization of a claim within the meaning of Section 111 of

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

37. The Respondent also waives any challenge it may have to any

response action selected in any Action Memorandum, Interim Record of

Decision or final Record of Decision for the Site.

XIII. Effect of Settlement; Contribution Protection

38. Nothing in this Order shall be construed to create any rights

in, or grant any cause of action to, any person not a party to this

Order. The preceding sentence shall not be construed to waive or

nullify any rights that any person not a signatory to this Order may

have under applicable law. The United States and the Respondent each

reserve any and all rights (including, but not limited to, any right to

contribution), defenses, claims, demands and causes of action which

each party may have with respect to any matter, transaction, or

occurrence relating in any way to the Site against any person not a

party hereto.

39. Respondent consents and agrees to comply with and be bound by

the terms of this Order. The United States and the Respondent agree

that this Order, Respondent's consent to this Order and actions in

accordance with this Order shall not in any way constitute or be

construed as an admission of any liability by Respondent or of any

legal or factual matters set forth in this Order. Further, neither this

Order, Respondent's consent to this Order, nor Respondent's actions in

accordance with this Order shall be admissible in evidence against

Respondent without its consent, except in a proceeding to enforce this

Order. Respondent does not admit, and retains the right to controvert

in any subsequent proceedings other than proceedings to implement or

enforce this Consent Order, the validity of the Statement of Facts and

Determinations contained in this Consent Order.

40. With regard to claims for contribution against the Respondent,

the Parties hereto agree that, as of the effective date of this Order,

the Respondent and its predecessors-in-interest, affiliates, successors

and assigns, including the Anaconda Minerals Company and the Atlantic

Richfield Company, is entitled to such protection from contribution

actions or claims as is provided by Sections 113(f)(2) and 122(g)(5) of

CERCLA, 42 U.S.C. 9613(f)(2) and 9622(g)(5) for ``matters addressed''

in this Consent Order. ``Matters addressed'' by this Order shall

include all claims the United States could bring or any other civil or

administrative action the United States could take against the

Respondent or its predecessors-in-interest, affiliates, successors and

assigns, including the Anaconda Minerals Company and the Atlantic

Richfield Company, for injunctive relief or for reimbursement of

response costs pursuant to Section 106 or 107(a) of CERCLA, 42 U.S.C.

9606 or 9607(a) or Section 7003 of the Resource Conservation and

Recovery Act, as amended, 42 U.S.C. 6973, related to the Site.

XIV. Public Comment

41. This Order shall be subject to a thirty-day public comment

period in accordance with Section 122(i) of CERCLA, 42 U.S.C. 9622(i).

In accordance with Section 122(i)(3), 42 U.S.C. 9622(i)(3), EPA may

withdraw or modify its consent to this Order if comments received

disclose any facts or considerations which indicate that this Order is

inappropriate, improper, or inadequate.

XV. Attorney General Approval

42. The Attorney General or her designee has approved the

settlement embodied in this Order in accordance with Section 122(g)(4)

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

XVI. Effective Date

43. The effective date of this Order shall be the date upon which

the Assistant Regional Administrator, EPA Region VIII notifies the

Respondent that the public comment period undertaken pursuant to

Paragraph 41 of this Order has closed and that comments received, if

any, do not require EPA's withdrawal from or the modification of any

terms of this Order.

It Is So Agreed:

ARCO Environmental Remediation, L.L.C.

Dated: July 2, 1997.

C. Richard Knowles,

President.

It Is So Ordered and Agreed:

Environmental Protection Agency, Region VIII.

Dated: September 2, 1997.

Carol Rushin,

Assistant Regional Administrator, Office of Enforcement, Compliance and

Environmental Justice.

In The Matter Of: Summitville Mine Superfund Site, Site No. 08-

Y3; ASARCO Incorporated; Respondent.

Proceeding Under Section 122(g)(4) Of The Comprehensive

Environmental Response, Compensation, And Liability Act, As Amended

(42 U.S.C. 9622(g)(4)). EPA Docket Number CERCLA-VIII-98-04.

CERCLA Section 122(g)(4) De Minimis Waste Contributor

Administrative Order