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Notice of Availability of and Initiation of a 30 Day Public: Federal Register: EPA

 

[Federal Register: August 7, 1996 (Volume 61, Number 153)]
[Notices]               

[Page 41156-41161]

>From the Federal Register Online via GPO Access [wais.access.gpo.gov]






ENVIRONMENTAL PROTECTION AGENCY

[FRL-5548-7]

 


Notice of Availability of and Initiation of a 30 Day Public 
Comment Period for an Administrative Order on Consent for De Minimis 
Waste Contributors Pursuant to the Comprehensive Environmental Response 
Compensation and Liability Act (CERCLA)



    Notice is hereby given that on July 24, 1996, an administrative 
order on consent (``Order'') between the United States Environmental 
Protection Agency, Region VIII and The Cleveland-Cliffs Iron Company, 
Union Pacific Resources Company and Union Pacific Resources Group, Inc. 
(collectively, ``the Settling Parties'') was approved by the Department 
of Justice, Environmental and Natural Resources Division, on behalf of 
the Attorney General of the United States, for the Summitville Mine 
Superfund Site (``Site'').

    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 a 
de minimis settlement in accordance with Section 122(g) of CERCLA. 
According to the terms of the Order, in exchange for a cash payment of 
$700,000, including a premium, the Settling Parties have resolved their 
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



[[Page 41157]]



Act, as amended, 42 U.S.C. 6973 for the Site.
    EPA Region VIII will receive comments relating to the proposed 
Order 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 No. CERCLA-VIII-96-23, Administrative Order an Consent 
between U.S. EPA Region VIII and The Cleveland-Cliffs Iron Company, 
Union Pacific Resources Group, Inc. and Union Pacific Resources 
Company. 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 Order may be examined in person at the Superfund 
Records Center, EPA Region VIII, 999 18th Street, Suite 500, Denver, 
Colorado 80202, (303) 312-6111. A copy of the Order may also be 
obtained by mail from Mr. James Worden of 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.

Max H. Dodson,

Assistant Regional Administrator, Office of Ecosystems Protection and 
Remediation, U.S. EPA Region VIII.



    In the Matter of: Summitville Mine Superfund Site, Site No. Y3; 
The Cleveland-Cliffs Iron Company, Union Pacific Resources Group, 
Inc. and Union Pacific Resources Company, 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 No. CERCLA-VIII-96-23.



CERCLA Section 122(G)(4) De Minimis Waste Contributor Administrative 
Order



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. Sec. 9622(g)(4), to reach settlements 
in actions under Section 106 or 107 of CERCLA, 42 U.S.C. Secs. 9606 or 

  2.  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 Fed. Reg. 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 Ecosystem Protection and 
Remediation.
    

  3.  This Order is issued to The Cleveland-Cliffs Iron Company, Union 
Pacific Resources Company and Union Pacific Resources Group, Inc. Each 
Respondent agrees to undertake all actions required by this Consent 
Order. Each Respondent further consents to and will not contest EPA's 
jurisdiction to issue this Consent Order or the 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 among the Parties with respect to 
the Site pursuant to Section 122(g) of CERCLA, 42 U.S.C. 9622(g), that 
allows Respondents to make a cash payment, including a premium, to 
resolve their alleged civil liability under Sections 106 and 107 of 
CERCLA, 42 U.S.C. 9606 and 9607 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 three of the 
potentially responsible parties from further involvement at the Site; 
and
    
    c. to obtain settlement with Respondents for their 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 
Respondents 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


    
    4. 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).
    
    ``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 The Cleveland-Cliffs Iron Company (CC), 
Union Pacific Resources Company and Union Pacific Resources Group, Inc. 
(together, UP).
    
    ``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 a 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


    
[[Page 41158]]


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


    
    5. 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).
    6. 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.
    
    7. 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).
    
    8. As of September 30, 1995, the United States incurred $77 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.
    
    9. EPA alleges that the Respondents are liable for reimbursement of 
the United States' response costs pursuant to Section 107 of CERCLA, 42 
U.S.C. 9607.
    
    10. Between April 1, 1996 and December 31, 1969, CC, UP and the 
W.S. Moore Co. participated in exploration and related activities at 
the Site. These activities initially were conducted by only W.S. Moore 
and UP. On October 1, 1967, CC acquired a working interest in the 
exploration and related activities at the Site pursuant to an Interim 
Management Agreement. In August 1, 1968, the Interim Management 
Agreement was replaced by the Management Agreement. On December 31, 
1969, the three participants ceased these exploration and related 
activities by terminating the Management Agreement.
    11. The exploration and related activities at the Site referred to 
in Paragraph 10 above included: (1) Sinking of one exploratory shaft, 
referred to herein as the Missionary Shaft, approximately 400 ft. to 
provide access to the Missionary Vein; (2) underground drifting from 
the Missionary Shaft to explore the extent of the Missionary Vein; (3) 
construction of a dam for the future impoundment of tailings; (4) 
partial construction of an ore crusher and mill facility ( the ore 
crusher was shipped and uncrated, but never installed or used); (5) 
implementation of an exploratory sampling program that included core 
and channel sampling; and (6) rehabilitation and renovation of 2200 ft. 
of the Reynolds tunnel. CC and UP did not, however, complete or operate 
the crusher and mill facility and did not generate or dispose of 
tailings at the Site.
    
    12. These activities caused the generation or disposal of 
approximately 12,000 cubic yards (yds.3) of waste rock and other 
mine waste material. Based on Information currently known to the United 
States, EPA and the Respondents agree that not more than 7,500 
yds.3 of this material was waste rock containing hazardous 
substances. The Parties agree that the remainder of this material was 
inert, non-hazardous substance-bearing andesite. EPA alleges that the 
waste rock generated during the Respondents' activities at the Site is 
a source of hazardous substances that have been released into the 
disturbed surface area of the Site and have adversely impacted the 
quality of water at or emanating from the Site.
    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\ 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 312f the total 
volume of hazardous substances contributed to each of these media. The 
Respondents' contributions of hazardous substances to these media are 
below the 3 10e minimis cut-off established by EPA for the Site.
    14. Based on Information currently known to the United States, EPA 
calculated the Respondents de minimis eligibility as follows: EPA has 
estimated that the amount of hazardous substances allegedly contributed 
to the Site by Respondents constitutes .000712f the total volume of 
waste rock, tailings or mine waste requiring remediation at the Site 
and .6512f the copper loading to the waters at or emanating from the 
Site.
    
    15. The material allegedly generated and disposed of by the 
Respondents therefore involves only a minor 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.
    
    16. EPA calculated the settlement amount to be paid by the 
Respondents based on the volume and toxicity of the Respondents' 
contribution of hazardous substances at the Site, the cost to remediate 
that contribution, a percentage of sitewide costs and an appropriate 
``premium'' payment. EPA believes that the 7,500 yds.\3\ of waste rock 
containing hazardous substances generated by the Respondents was 
disposed of in the general area between the Beaver Mud Dump and the 
Summitville Dam Impoundment. The amount of waste rock, tailings, and 
other mine waste being remediated pursuant to the CWP IROD is estimated 
to have a volume of 4,500,000 yds.\3\ The Respondents' alleged 
contribution of hazardous substances to be remediated pursuant to the 
CWP IROD is .16The cost to remediate the Respondents' contribution 
of mine waste was therefore calculated based on its fair share of the 
actual cost of performing the CWP removal action and the estimated 
future cost of performing the CWP IROD remedy. The cost to remediate 
the Respondents' contribution of copper loading to waters at and 
emanating from the Site was calculated based on its fair share of past


    
[[Page 41159]]


    
and estimated future costs of performing water treatment.
    17. 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 $120 million. The payment required to be 
made by the Respondents pursuant to this Order represents only a minor 
portion of the response costs to be recovered for the cleanup of the 
Site.


    
V. Determinations


    
    18. Based upon the Statement of Facts set forth above and on the 
Information currently known to the United States, EPA has determined 
that:
    
    a. The Site is a ``facility'' as that term is defined in Section 
101(9) of CERCLA, 42 U.S.C. 9601(9).
    
    b. Each Respondent is a ``person'' as that term is defined in 
Section 101(21) of CERCLA, 42 U.S.C. 9601(21).
    c. Each Respondent is a ``potentially responsible party'' within 
the meaning of Section 122(g)(1) of CERCLA, 42 U.S.C. 9622(g)(1).
    d. There has been an actual or threatened ``release'' of a 
``hazardous substance'' from the Site as those terms are defined in 
Sections 101(22) and (14) of CERCLA, 42 U.S.C. 9601(22) and (14).
    e. The amount of hazardous substances contributed to the Site by 
each Respondent and the toxic or other hazardous effects of the 
hazardous substances contributed to the Site by each Respondent are 
minimal in comparison to other hazardous substances at the Site within 
the meaning of Section 122(g)(1)(A) of CERCLA, 42 U.S.C. 9622(g)(1)(A).
    f. As to each Respondent, this Consent Order involves only a minor 
portion of the response costs at the Site within the meaning of Section 
122(g)(1) of CERCLA, 42 U.S.C. 9622(g)(1).
    g. 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).
    h. Prompt settlement with each Respondent is practicable and in the 
public interest within the meaning of Section 122(g)(1) of CERCLA, 42 
U.S.C. Sec. 9622(g)(1).
    
    i. 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 to all 
releases or threatened releases at or in connection with the Site.


    
V. Order


    
    19. 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:


    
VI. Parties Bound


    
    20. 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 a Respondent including, 
but not limited to, any transfer of assets or real or personal 
property, shall in no way alter such Respondent's responsibilities 
under this Consent Order. Each signatory to this Consent Order 
certifies that he or she is authorized to enter into the terms and 
conditions of this Consent Order and to execute and bind legally the 
party represented by him or her.


    
VII. Payment


    
    21. Within 10 days of the effective date of this Order, Respondents 
shall pay a total of $700,000 to the Hazardous Substance Superfund as 
provided below. The obligation to pay the United States this amount is 
joint and several among the Respondents.
    22. Payment shall be made by cashier's check(s) made payable to 
``EPA Hazardous Substance Superfund.'' Each check shall reference the 
Site name, the name and address of the Respondent, EPA CERCLA Number 
08-Y3 and DOJ Case No. 90-11-1133A and shall be sent to: Mellon Bank, 
EPA Region VIII, Attn: Superfund Accounting, P.O. Box 360859M, 
Pittsburgh, PA 15251.
    
    23. If the Respondents fail to make full payment within the time 
required by Paragraph 21. Respondents shall pay Interest on the unpaid 
balance. In addition, if Respondents fail to make full payment as 
required by Paragraph 21, the United States may, in addition to any 
other available remedies or sanctions, bring an action against the 
Respondents 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.
    
    24. The Respondents' payment includes an amount representing the 
Respondents' 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 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 Respondents' payment is based.
    25. Payments made under this Section shall be placed in a sitespecific 
``special'' or ``reimbursable'' account by EPA. This sitespecific 
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.


    
VIII. Certification of Respondents


    
    26. By signing this Consent Order, each Respondent certifies, 
individually, that, to the best of its knowledge and belief, it has:
    a. conducted a thorough, comprehensive, good faith search for 
documents, and has fully and accurately disclosed to EPA, all nonprivileged 
documents currently in its possession, or in the possession 
of its officers, directors, employees, contractors or agents, which 
relates in any way to its liability under CERCLA and RCRA for 
ownership, operation, exploration activities or control of the Site;
    b. 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
    c. 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 Yo Sue


    
    27. 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 each Respondent for


    
[[Page 41160]]


    
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 Respondents, 
and to their predecessors-it-interest, affiliates, successors and 
assigns only to the extent that the liability of such predecessors-ininterest, 
affiliates, successors and assigns is derivative of 
Respondents' liability for those acts set forth in Paragraph 11, 
Section IV of this Order. The United States' covenant not to sue does 
not extend to any other person.


    
X. Reservation of Rights


    
    28. The covenants not to sue by the United States set forth in 
Paragraph 27 of this Order do not pertain to any matters other than 
those expressly specified in Paragraph 27. The United States reserves, 
and this Order is without prejudice to, all rights against any 
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;
    
    (c) Any liability against a Respondent that results from its future 
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.
    29. a. Notwithstanding any other provision in this Consent Order, 
the United States reserves, and this Consent Order is without prejudice 
to, the right to institute judicial or administrative proceedings 
against any Respondent seeking to compel that 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 such 
Respondent contributed: (a) hazardous substances in an amount greater 
than 112f the total volume of waste rock, tailings or mine waste 
containing hazardous substances requiring remediation at the Site; or 
(b) hazardous substances in an amount greater than 1.312f 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 than other hazardous 
substances at the Site.
    
    b. For purposes of Paragraph 29.a., ``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 copper loading to the waters at or emanating from the 
Site based solely on Information currently known to the United States; 
or (3) any recalculation of the Respondent's contribution to copper 
loading to the waters at or emanating from the Site that relies upon 
the reduction, elimination or remediation of sources of copper loading 
other than the Missionary Vein.
    
    c. In the event the United States institutes judicial or 
administrative proceedings against any Respondent pursuant to Paragraph 
29.a. above, CC an UP shall each:
    
    (i) be credited, in any subsequent settlement or administrative or 
judicial proceeding relating to the Site, $350,000 of the $700,000 
payment made pursuant to Paragraph 21 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 each 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.


    
XI. Covenant Not To Sue by Respondents


    
    30. Each 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:
    
    a. 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;
    b. any claim arising out of response activities at the Site; and
    c. 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.
    31. 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 Sec. 300.700(d).
    32. 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


    
    33. 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.
    
    34. Respondents consent and agree to comply with and be bound by 
the terms 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.
    35. With regard to claims for contribution against each Respondent 
and their predecessors-in-interest, affiliates, successors and assigns 
for matters addressed by this Order, the Parties hereto agree that each 
Respondent and their predecessors-in-interest, affiliates, successors 
and assigns is entitled, as of the effective date this Order, to such 
protection from contribution actions or claims as is


    
[[Page 41161]]


    
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 each Respondent, or their 
predecessors-in-interest, affiliates, successors and assigns only to 
the extent that their liability is derivative of Respondents' liability 
for those acts set forth in Paragraphs 11, 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


    
    36. 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


    
    37. The Attorney General or her designee has approved the 
settlement embodied in this Order in accordance with Section 112(g)(4) 
of CERCLA, 42 U.S.C. 9622(g)(4).


    
XV. Effective Date


    
    38. 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 36 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


    
The Cleveland-Cliffs Iron Company


    
By:--------------------------------------------------------------------
Thomas J. O'Neil, President.


    
Date:------------------------------------------------------------------
Union Pacific Resources Company


    
By:--------------------------------------------------------------------
V. Richard Eales, Executive Vice President and Chief Financial 
Officer.


    
Date:------------------------------------------------------------------
Union Pacific Resources Group, Inc.


    
By:--------------------------------------------------------------------
V. Richard Eales, Executive Vice President and Chief Financial 
Officer.


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


    
It is so Ordered and Agreed


    
Environmental Protection Agency, Region VIII


    
By:--------------------------------------------------------------------
Max H. Dodson, Assistant Regional Administrator, Officer of 
Ecosystems Protection and Remediation.


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


    
[FR Doc. 96-20112 Filed 8-6-96; 8:45 am]
BILLING CODE 6560-50-M

 
 

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