United Nuclear Corporation et al v. United States of America

Filing 45

CONSENT DECREE by District Judge Kenneth J. Gonzales. (tah)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
)
UNITED NUCLEAR CORP.,
)
EL PASO
)
NATURAL GAS CO., L.L.C., AND
)
HOMESTAKE MINING CO. OF
)
CALIFORNIA
)
)
Plaintiffs/Counterdefendants
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant/Counterplaintiff.
)
____________________________________)

Civil Action No. 15-CV-411 KG/WPL

CONSENT DECREE

TABLE OF CONTENTS
I. 
II. 
III. 
IV. 
V. 
VI. 
VII. 
VIII. 
IX. 
X. 

BACKGROUND ................................................................................................................ 1 
JURISDICTION ................................................................................................................. 4 
PARTIES BOUND ............................................................................................................. 4 
DEFINITIONS.................................................................................................................... 4 
STATEMENT OF PURPOSE ............................................................................................ 8 
PAYMENT OF RESPONSE COSTS................................................................................. 8 
FAILURE TO COMPLY WITH CONSENT DECREE .................................................. 11 
COVENANTS BY THE UNITED STATES ................................................................... 13 
RESERVATION OF RIGHTS BY UNITED STATES ................................................... 13 
COVENANTS BY PLAINTIFFS/COUNTERDEFENDANTS AND SETTLING
FEDERAL AGENCIES .................................................................................................... 15 
XI.  EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION .................................. 17 
XII.  ACCESS TO INFORMATION ........................................................................................ 19 
XIII.  RETENTION OF RECORDS........................................................................................... 21 
XIV.  NOTICES AND SUBMISSIONS..................................................................................... 23 
XV.  RETENTION OF JURISDICTION .................................................................................. 25 
XVI.  INTEGRATION/APPENDICES ...................................................................................... 25 
XVII.  LODGING AND OPPORTUNITY FOR PUBLIC COMMENT .................................... 25 
XVIII.  SIGNATORIES/SERVICE............................................................................................... 26 
XIX.  FINAL JUDGMENT ........................................................................................................ 26 

ii

I.
A.

BACKGROUND

United Nuclear Corporation (“United Nuclear”), El Paso Natural Gas Company,

L.L.C. (“EPNG”), and Homestake Mining Company of California (“Homestake”) (collectively,
the “Plaintiffs/Counterdefendants”) filed a complaint in this matter against the United States of
America pursuant to Section 107 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. § 9607 (“CERCLA”) and federal common law,
seeking reimbursement of Plaintiffs’/Counterdefendants’ response costs incurred and to be
incurred for response actions taken in connection with the release of hazardous substances at the
San Mateo CERCLA Site in the Cibola National Forest, which is managed by the U.S. Forest
Service (“USFS”), in New Mexico (the “Site”).
B.

The United States filed a counterclaim in this matter pursuant to Sections 107 and

113 of CERCLA, 42 U.S.C. §§ 9607 & 9613, seeking reimbursement of response costs incurred
and to be incurred for response actions taken or to be taken at or in connection with the release or
threatened release of hazardous substances at the Site, and for equitable allocation of
Plaintiffs’/Counterdefendants’ response costs in the event the United States were to be found
liable with respect to the claims alleged in the Complaint.
C.

The Site, as depicted in Appendix B to this Consent Decree, is the location of the

former San Mateo Uranium Mine and includes a portion of the Lee Ranch. United Nuclear,
EPNG, and Homestake all owned perfected unpatented mining claims, and mined and/or
conducted assessment and exploration activities at the Site during the period between 1957 and
1988, when hazardous substances, including at least radium 228 and thorium 230, were released
as a result of the mining operations performed there.
D.

In the 1980s, the United States Environmental Protection Agency (“EPA”) and

the New Mexico State Environmental Improvement Division began investigations at the Site. In
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1994, the USFS finalized a Site Inspection report (the “Report”) that noted high levels of
radionuclides from uranium wastes at the Site. The Report also concluded that radioactive
materials and other contaminants were present in the groundwater at the Site and that the
hazardous substances were being transported from the Site in surface runoff. The Report
contained a recommendation that Site restoration activities occur and that uranium waste rock at
the Site be contained. In 2010, the USFS issued a final Engineering Evaluation/Cost Analysis
(“EE/CA”) report that assessed the Site hazards described in the Report and selected a removal
action to address those hazards (the “Removal Action”). The Removal Action consisted of:
(1) screening for contaminated materials; (2) excavating contaminated soil, rock, and mining
waste; (3) consolidating the soil, rock, and mining rock in an onsite, in-ground repository; and
(4) capping the repository with a vegetated soil cover.
E.

In June 2011, based on the Report and EE/CA, the USFS issued a Unilateral

Administrative Order (“UAO”), pursuant to CERCLA Section 106(a), 42 U.S.C. § 9606(a),
which directed United Nuclear, EPNG, and Homestake – along with another entity, Western
Energy Development Corp., that is not a party to this settlement or this litigation – to implement
the Removal Action. EPA reviewed and concurred in the UAO prior to its issuance.
F.

Pursuant to UAO, Plaintiffs/Counterdefendants are implementing the Removal

Action, incurring, to date, approximately $8 million in costs.
G.

The Removal Action is not yet complete. Plaintiffs/Counterdefendants continue to

be bound by the terms of the UAO and are obligated to perform in accordance with its terms.
H.

The United States has incurred approximately $425,000 in response costs from

response actions in connection with the Site and overseeing the performance of the UAO,
including approximately $25,000 in costs incurred by EPA and approximately $400,000 incurred

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by the USDA and USFS. The United States anticipates incurring additional response costs in the
future.
I.

Plaintiffs/Counterdefendants claim that the United States is liable for and should

pay an equitable share of the response costs incurred and to be incurred by
Plaintiffs/Counterdefendants in connection with the Site pursuant to Sections 107(a) and 113 of
CERCLA, 42 U.S.C. §§ 9607(a) and 9613, alleging that the Site is located on federal land
managed by the USFS and that the United States Atomic Energy Commission (of which the
Department of Energy is a successor-in-interest) purchased uranium mined at the Site.
J.

The United States alleged in the Counterclaim that Plaintiffs/Counterdefendants

are responsible parties pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and thus are
jointly and severally liable for all response costs incurred and to be incurred at the Site.
K.

The parties entering into this Consent Decree do not admit any liability arising out

of the transactions or occurrences alleged in the Complaint or Counterclaim.
L.

The United States and Plaintiffs/Counterdefendants agree, and this Court by

entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in
good faith, that settlement of this matter without further litigation and without the admission or
adjudication of any issue of fact or law is appropriate and will avoid prolonged and complicated
litigation between the Parties, and that this Consent Decree is fair, reasonable, and in the public
interest.
THEREFORE, with the consent of the Parties to this Decree, it is ORDERED,
ADJUDGED, AND DECREED:

3

II.
1.

JURISDICTION

This Court has jurisdiction over the subject matter of this action pursuant to

28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. § 9607 and 9613(b) and also has personal jurisdiction
over the Parties. Solely for the purposes of this Consent Decree and the underlying Complaint
and Counterclaim, the Parties waive all objections and defenses that they may have to
jurisdiction of the Court or to venue in this District. The Parties will not challenge entry or the
terms of this Consent Decree or this Court’s jurisdiction to enter and enforce this Consent
Decree. The Counterclaim constitutes an “initial action for the recovery of costs” within the
meaning of Section 113(g)(2), 42 U.S.C. § 9613(g)(2), at the Site, and any subsequent action by
the United States to recover any response costs under CERCLA Section 107, 42 U.S.C. § 9607,
for the Site, not addressed by this Consent Decree, shall be a “subsequent action” for further
response costs within the meaning of Section 113(g)(2).
III.
2.

PARTIES BOUND

This Consent Decree is binding upon the Parties and upon their successors and

assigns. Any change in ownership or corporate or other legal status, including, but not limited to,
any transfer of assets or real or personal property, shall in no way alter the status or
responsibilities of Plaintiffs/Counterdefendants under this Consent Decree.
IV.
3.

DEFINITIONS

Unless otherwise expressly provided in this Consent Decree, terms used in this

Consent Decree that are defined in CERCLA or in regulations promulgated under CERCLA
shall have the meaning assigned to them in CERCLA or in such regulations. Whenever terms
listed below are used in this Consent Decree or its appendices, the following definitions shall
apply:

4

“CERCLA” means the Comprehensive Environmental Response, Compensation, and
Liability Act, as amended, 42 U.S.C. §§ 9601-9675.
“Consent Decree” means this Consent Decree and all appendices attached hereto. In
the event of conflict between this Consent Decree and any appendix, this Consent Decree
shall control.
“Day” or “day” means 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 or State
holiday, the period shall run until the close of business on the next working day.
“DOJ” means the U.S. Department of Justice and its successor departments,
agencies, or instrumentalities.
“EE/CA” means the 2010 Engineering Evaluation/Cost Analysis that assessed the
Site hazards described in the Report and identified the Removal Action that was required to
be completed pursuant to the UAO.
“Effective Date” means the date upon which approval of this Consent Decree is
recorded on the Court’s docket.
“EPA” means the U.S. Environmental Protection Agency and its successor
departments, agencies, or instrumentalities.
“EPA Hazardous Substance Superfund” means the Hazardous Substance Superfund
established by the Internal Revenue Code, 26 U.S.C. § 9507.
“Interest” means interest at the rate specified for interest on investments of the EPA
Hazardous Substance Superfund established by 26 U.S.C. § 9507, compounded annually on
October 1 of each year, in accordance with 42 U.S.C. § 9607(a). The applicable rate of
interest shall be the rate in effect at the time the interest accrues. The rate of interest is

5

subject to change on October 1 of each year. Rates are available online at
https://www.epa.gov/superfund/superfund-interest-rates.
“Paragraph” means a portion of this Consent Decree identified by an Arabic numeral
or an upper or lower case letter.
“Parties” means the United States, including the Settling Federal Agencies, and
Plaintiffs/Counterdefendants.
“Plaintiffs/Counterdefendants” means EPNG, Homestake, and United Nuclear.
“Plantiffs’/Counterdefendants’ Response Costs” means costs incurred for activities
undertaken by Plaintiffs/Counterdefendants necessary to comply with the terms of the UAO.
“Post-Certification Operation and Maintenance” means all activities conducted by
the USFS after issuance of the notice of completion of the UAO that are necessary to
operate, maintain, and monitor the effectiveness of the Removal Action.
“Removal Action” means the actions Plaintiffs/Counterdefendants were ordered to
take under the terms of the UAO.
“Report” means the 1994 USFS Site Inspection Report.
“Response Costs” means all costs, including but not limited to direct and indirect
costs, that the United States has incurred through the Effective Date at or in connection with
the Site or will incur after the Effective Date in connection with the Work and PostCertification Operation and Maintenance, plus Interest on all such costs, pursuant to
42 U.S.C. § 9607(a).
“Section” means a portion of this Consent Decree identified by a Roman numeral.

6

“Settling Federal Agencies” means the United States Forest Service (“USFS”), the
United States Department of Agriculture (“USDA”), and the United States Department of
Energy (“DOE”).
“Site” means the San Mateo Mine Site in Cibola County, New Mexico, within the
Grants Uranium Region, and is further described as the NE¼ of Section 30, SE¼ of the SE¼
of Section 19, and the Federal portion of the West ½ of the NW¼ of Section 29, Township
13 North, Range 8 West of the New Mexico Principal Meridian, as shown on the map
included in Appendix B.
“State” means the State of New Mexico.
“Statement of Work” means the statement of work for performance of the Removal
Action. The Statement of Work is Appendix A to the UAO.
“UAO” means the Unilateral Administrative Order issued to
Plaintiffs/Counterdefendants in June of 2011, pursuant to which
Plaintiffs/Counterdefendants are performing the Removal Action at the Site.
“United States” means the United States of America and each department, agency,
and instrumentality of the United States, including EPA, the DOE, the USDA, and the
USFS.
“USDA” means the United States Department of Agriculture and its successor
departments, agencies, or instrumentalities.
“USFS” means the United States Forest Service and its successor departments,
agencies, or instrumentalities.
“Waste Material” shall mean (1) any “hazardous substance” under Section 101(14)
of CERCLA, 42 U.S.C. § 9601(14); (2) any pollutant or contaminant under Section 101(33)

7

of CERCLA, 42 U.S.C. § 9601(33); and (3) any “solid waste” under Section 1004(27) of
RCRA, 42 U.S.C. § 6903(27).
“Work” means (a) all activities and obligations undertaken by
Plaintiffs/Counterdefendants on or before the Effective Date to implement the requirements
of the UAO and after the Effective Date to implement those requirements of the UAO
identified in the Statement of Work and (b) all activities and obligations
Plaintiffs/Counterdefendants are required to perform in order to implement this Consent
Decree, except the activities required under Section XIII (Retention of Records).
V.
4.

STATEMENT OF PURPOSE

The objectives of the Parties in entering into this Consent Decree are to resolve

the claims of the United States for Response Costs and the Work, and to resolve the claims of
Plaintiffs/Counterdefendants for Plaintiffs’/Counterdefendants’ Response Costs that have been or
could have been asserted against the United States, as provided in this Consent Decree.
VI.
5.

PAYMENT OF RESPONSE COSTS

Payment by Plaintiffs/Counterdefendants for Response Costs. Within 30 days

after the Effective Date, Plaintiffs/Counterdefendants shall pay to EPA $25,000, plus an
additional sum for Interest on that amount calculated from the date of lodging of the Consent
Decree through the date of payment.
6.

Plaintiffs/Counterdefendants shall make payments by Fedwire Electronic Funds

Transfer EFT to the U.S. Department of Justice account, in accordance with instructions
provided to Plaintiffs/Counterdefendants by the Financial Litigation Unit (FLU) of the U.S.
Attorney’s Office for the District of New Mexico after the Effective Date. The payment
instructions provided by the FLU will include a Consolidated Debt Collection System (CDCS)

8

number, which shall be used to identify all payments required to be made in accordance with this
Consent Decree. The FLU will provide the payment instructions to:
For EPNG:
Daniel J. Schnee
Assistant General Counsel
Kinder Morgan, Inc.
Two North Nevada
Colorado Springs, CO 80903
Telephone: [phone]
Email: [e-mail]
For Homestake:
Peter Webster
General Counsel United States
Barrick Gold of North America, Inc.
310 South Main Street, SLC, UT 84101
Telephone: [phone]
Email: [e-mail]
For United Nuclear:
Kirk R. Macfarlane
Executive Counsel – Property and Risk Management
Global Operation, Environment, Health & Safety
GE
640 Freedom Business Center
King of Prussia, PA 19406
Telephone: [phone]
Email: [e-mail]
on behalf of Plaintiffs/Counterdefendants. Plaintiffs/Counterdefendants may change the
individuals to receive payment instructions on their behalf by providing written notice of such
change to DOJ and EPA in accordance with Section XIV (Notices and Submissions).
7.

Deposit of Payment. The total amount to be paid pursuant to Paragraph 5 shall be

deposited by EPA in the EPA Hazardous Substance Superfund.
8.

Notice of Payment. At the time of payment, Plaintiffs/Counterdefendants shall

send notice that payment has been made (a) to EPA in accordance with Section XIV (Notices

9

and Submissions); (b) to DOJ in accordance with Section XIV (Notices and Submissions); and
(c) to the EPA Cincinnati Finance Center by email or by regular mail at:
Email:

[e-mail]

Regular mail:

EPA Cincinnati Finance Center
26 W. Martin Luther King Drive
Cincinnati, Ohio 45268

Such notice shall reference the CDCS Number, Site/Spill ID Number A6AN, and DJ
Numbers 90-11-3-11380/1 and 90-11-6-19727.
9.

Payment by Settling Federal Agencies.
a.

As soon as reasonably practicable after the Effective Date, and consistent

with Paragraph 9.c, the United States, on behalf of Settling Federal Agencies, shall pay to
Plaintiffs/Counterdefendants, a total sum of $1.595 million by Automated Clearinghouse (ACH)
Electronic Funds Transfer in accordance with instructions provided by
Plaintiffs/Counterdefendants.
b.

Interest. In the event that any payment required by Paragraph 9.a is not

made within 120 days after the Effective Date, the United States, on behalf of Settling Federal
Agencies, shall pay Interest on the unpaid balance, with such Interest commencing on the
121st day after the Effective Date and accruing through the date of the payment.
c.

The Parties to this Consent Decree recognize and acknowledge that the

payment obligations of Settling Federal Agencies under this Consent Decree can only be paid
from appropriated funds legally available for such purpose. Nothing in this Consent Decree shall
be interpreted or construed as a commitment or requirement that any Settling Federal Agency
obligate or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any
other applicable provision of law.

10

VII.
10.

FAILURE TO COMPLY WITH CONSENT DECREE

Interest on Late Payments. If Plaintiffs/Counterdefendants fail to make any

payment required by Paragraph 5 (Payment by Plaintiffs/Counterdefendants for Response Costs)
by the required due date, Interest shall continue to accrue on the unpaid balance through the date
of payment.
11.

Stipulated Penalty.
a.

If any amounts due under Paragraph 5 (Payment by

Plaintiffs/Counterdefendants for Response Costs) are not paid by the required due date,
Plaintiffs/Counterdefendants shall be in violation of this Consent Decree and shall pay, as a
stipulated penalty, in addition to the Interest required by Paragraph 10 (Interest on Late
Payments), $100 per violation per day that such payment is late.
b.

Stipulated penalties are due and payable within 30 days after the date of

the demand for payment of the penalties by EPA. All payments to EPA under this Paragraph
shall be identified as “stipulated penalties” and shall be made by Fedwire EFT to:
Federal Reserve Bank of New York
ABA = 021030004
Account = 68010727
SWIFT address = FRNYUS33
33 Liberty Street
New York, NY 10045
Field Tag 4200 of the Fedwire message should read “D 68010727
Environmental Protection Agency”
and shall reference the CDCS Number, Site/Spill ID Number A6AN, and DJ Numbers 90-11-311380/1 and 90-11-6-19727.
c.

At the time of payment, Plaintiffs/Counterdefendants shall send notice that

payment has been made to EPA and DOJ as provided in Paragraph 8 (Notice of Payment).

11

d.

Stipulated penalties shall accrue as provided in this Paragraph regardless

of whether EPA has notified Plaintiffs/Counterdefendants of the violation or made a demand for
payment, but need only be paid upon demand. All penalties shall begin to accrue on the day after
payment is due or the day a violation occurs, and shall continue to accrue through the date of
payment. Nothing in this Consent Decree shall prevent the simultaneous accrual of separate
penalties for separate violations of this Consent Decree.
12.

If EPA brings an action to enforce this Consent Decree,

Plaintiffs/Counterdefendants shall reimburse the United States for all costs of such action,
including but not limited to costs of attorney time.
13.

Payments made under this Section shall be in addition to any other remedies or

sanctions available to EPA by virtue of Plaintiffs’/Counterdefendants’ failure to comply with the
requirements of this Consent Decree.
14.

The obligations of Plaintiffs/Counterdefendants to pay amounts owed to the

United States under this Consent Decree are joint and several. In the event of the insolvency of
any Plaintiff/Counterdefendant or the failure by any Plaintiff/Counterdefendant to make the
payments required under this Consent Decree, the remaining Plaintiffs/Counterdefendants shall
be responsible for such payments.
15.

Notwithstanding any other provision of this Section, the United States may, in its

unreviewable discretion, waive payment of any portion of the stipulated penalties that have
accrued pursuant to this Consent Decree. Payment of stipulated penalties shall not excuse
Plaintiffs/Counterdefendants from payment as required by Section VI (Payment of Response
Costs) or from performance of any other requirements of this Consent Decree.

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VIII. COVENANTS BY THE UNITED STATES
16.

Covenants for Plaintiffs/Counterdefendants by United States. Except as

specifically provided in Section IX (Reservation of Rights by United States), the United States
covenants not to sue or to take administrative action against Plaintiffs/Counterdefendants
pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a), for the Work
and Response Costs. With respect to Response Costs, the covenant takes effect upon the
Effective Date. With respect to the Work, the covenant takes effect upon the date the USFS
issues the notice of completion of the UAO, in accordance with Paragraph 48 of the UAO. These
covenants are conditioned upon the satisfactory performance by Plaintiffs/Counterdefendants of
their obligations under this Consent Decree and the UAO. These covenants extend only to
Plaintiffs/Counterdefendants and do not extend to any other person.
17.

Covenant for Settling Federal Agencies by EPA. Except as specifically provided

in Section IX (Reservation of Rights by United States), EPA covenants not to take administrative
action against Settling Federal Agencies pursuant to Sections 106 and 107(a) of CERCLA,
42 U.S.C. §§ 9606 and 9607(a), for the Work and Response Costs. This covenant takes effect
upon the Effective Date. This covenant is conditioned upon the satisfactory performance by
Settling Federal Agencies of their obligations under this Consent Decree. This covenant extends
only to Settling Federal Agencies and does not extend to any other person.
IX.
18.

RESERVATION OF RIGHTS BY UNITED STATES

The United States reserves, and this Consent Decree is without prejudice to, all

rights against Plaintiffs/Counterdefendants, and EPA and the federal natural resource trustees
reserve, and this Consent Decree is without prejudice to, all rights against Settling Federal
Agencies, with respect to all matters not expressly included within Section VIII (Covenants by
the United States). Notwithstanding any other provision of this Consent Decree, the United
13

States reserves all rights against Plaintiffs/Counterdefendants, and EPA and the federal natural
resource trustees reserve, and this Consent Decree is without prejudice to, all rights against
Settling Federal Agencies, with respect to:
a.

liability for failure by Plaintiffs/Counterdefendants or Settling Federal

Agencies to meet a requirement of this Consent Decree;
b.

liability arising from the past, present, or future disposal, release, or threat

of release of Waste Material outside of the Site;
c.

liability based on the ownership of the Site by

Plaintiffs/Counterdefendants or Settling Federal Agencies when such ownership
commences after signature of this Consent Decree by Plaintiffs/Counterdefendants or
Settling Federal Agencies;
d.

liability based on the operation of the Site by Plaintiffs/Counterdefendants

when such operation commences after signature of this Consent Decree by
Plaintiffs/Counterdefendants and does not arise solely from
Plaintiffs’/Counterdefendants’ performance of the Work and liability based on the
operation of the Site by Settling Federal Agencies when such operation commences after
signature of this Consent Decree by Settling Federal Agencies;
e.

liability based on Plaintiffs’/Counterdefendants’ or Settling Federal

Agencies’ transportation, treatment, storage, or disposal, or arrangement for
transportation, treatment, storage, or disposal of Waste Material at or in connection with
the Site, other than as provided in the EE/CA, the UAO, or otherwise ordered by the
United States, after signature of this Consent Decree by Plaintiffs/Counterdefendants or
Settling Federal Agencies;

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f.

liability for damages for injury to, destruction of, or loss of natural

resources, and for the costs of any natural resource damage assessments;
g.

criminal liability; and

h.

liability for violations of federal or state law that occur during or after

implementation of the Work.
X.

COVENANTS BY PLAINTIFFS/COUNTERDEFENDANTS AND SETTLING
FEDERAL AGENCIES
19.

Covenant by Plaintiffs/Counterdefendants. Plaintiffs/Counterdefendants covenant

not to sue and agree not to assert any claims or causes of action against the United States with
respect to the Work, past response actions regarding the Site, Response Costs,
Plaintiffs’/Counterdefendants’ Response Costs, and this Consent Decree, including but not
limited to:
a.

any direct or indirect claim for reimbursement from the EPA Hazardous

Substance Superfund based on Sections 106(b)(2), 107, 111, 112, or 113 of CERCLA,
42 U.S.C. §§ 9606(b)(2), 9607, 9611, 9612, or 9613, or any other provision of law;
b.

any claim arising out of response actions at or in connection with the Site,

including any claim under the United States Constitution, the New Mexico Constitution,
the Tucker Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, or
at common law; or
c.

any claim pursuant to Sections 107 or 113 of CERCLA, 42 U.S.C.

§§ 9607 or 9613, Section 7002(a) of RCRA, 42 U.S.C. § 6972(a), or state law.
20.

Covenant by Settling Federal Agencies. Settling Federal Agencies agree not to

assert any direct or indirect claim for reimbursement from the EPA Hazardous Substance
Superfund through CERCLA Sections 106(b)(2), 107, 111, 112, or 113, or any other provision of
15

law with respect to the Work, past response actions regarding the Site, Response Costs,
Plaintiffs’/Counterdefendants’ Response Costs, and this Consent Decree. This covenant does not
preclude demand for reimbursement from the Superfund of costs incurred by a Settling Federal
Agency in the performance of its duties (other than pursuant to this Consent Decree) as lead or
support agency under the National Contingency Plan.
21.

Except as provided in Paragraph 23 (claims against other PRPs) and Paragraph 30

(res judicata and other defenses), the covenants in this Section shall not apply in the event the
United States brings a cause of action or issues an order pursuant to any of the reservations in
Section IX (Reservations of Rights by United States), other than in Paragraph 18.a (liability for
failure to meet a requirement of the Consent Decree), 18.g (criminal liability), or 18.h (violations
of federal/state law during or after implementation of the Work) but only to the extent that
Plaintiffs’/Counterdefendants’ claims arise from the same response action or response costs that
the United States is seeking pursuant to the applicable reservation.
22.

Nothing in this Consent Decree shall be deemed to constitute approval or

preauthorization of a claim within the meaning of Section 111 of CERCLA, 42 U.S.C. § 9611, or
40 C.F.R. 300.700(d).
23.

Plaintiffs/Counterdefendants agree not to assert any claims and to waive all

claims or causes of action (including but not limited to claims or causes of action under
Sections 107(a) and 113 of CERCLA) that they may have for response costs relating to the Site
against any person who is not a party to this Consent Decree and is a potentially responsible
party under CERCLA at the Site. This waiver shall not apply with respect to any defense, claim,
or cause of action that a Plaintiff/Counterdefendant may have against any person if such person
asserts a claim or cause of action relating to the Site against such Plaintiff/Counterdefendant.

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24.

Plaintiffs/Counterdefendants reserve, and this Consent Decree is without

prejudice to, claims against the United States, subject to the provisions of Chapter 171 of Title 28
of the United States Code, and brought pursuant to any statute other than CERCLA or RCRA
and for which the waiver of sovereign immunity is found in a statute other than CERCLA or
RCRA, for money damages for injury or loss of property or personal injury or death caused by
the negligent or wrongful act or omission of any employee of the United States, as that term is
defined in 28 U.S.C. § 2671, while acting within the scope of his or her office or employment
under circumstances where the United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission occurred. However, the
foregoing shall not include any claim based on the United States’ selection of response actions,
or the oversight or approval of Plaintiffs’/Counterdefendants’ plans, reports, other deliverables,
or activities.
XI.
25.

EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION
Except as provided in Paragraph 23 (claims against other PRPs), nothing in this

Consent Decree shall be construed to create any rights in, or grant any cause of action to, any
person not a Party to this Consent Decree. Except as provided in Section X (Covenants by
Plaintiffs/Counterdefendants and Settling Federal Agencies), each of the Parties expressly
reserves any and all rights (including, but not limited to, under Section 113 of CERCLA,
42 U.S.C. § 9613), defenses, claims, demands, and causes of action that it may have with respect
to any matter, transaction, or occurrence relating in any way to the “matters addressed” against
any person not a Party hereto. Nothing in this Consent Decree diminishes the right of the United
States, pursuant to Section 113(f)(2) and (3) of CERCLA, 42 U.S.C. § 9613(f)(2)-(3), to pursue

17

any such persons to obtain additional response costs or response action and to enter into
settlements that give rise to contribution protection pursuant to Section 113(f)(2).
26.

The Parties agree, and by entering this Consent Decree this Court finds, that this

Consent Decree constitutes a judicially-approved settlement pursuant to which
Plaintiffs/Counterdefendants and Settling Federal Agencies have, as of the Effective Date,
resolved their liability within the meaning of Section 113(f)(2) of CERCLA, 42 U.S.C.
§ 9613(f)(2), and are entitled, as of the Effective Date, to protection from contribution actions or
claims as provided by Section 113(f)(2) of CERCLA, or as may be otherwise provided by law,
for the matters addressed in this Consent Decree.
27.

For purposes of this Consent Decree, “matters addressed” means the Work,

Response Costs, and Plaintiffs’/Counterdefendants’ Response Costs; provided, however, that if
the United States exercises rights under the reservations in Section IX (Reservations of Rights by
United States), other than in Paragraph 18.a (liability for failure to meet a requirement of the
Consent Decree) or 18.g (criminal liability), or 18.h (violations of federal/state law during or
after implementation of the Work), the “matters addressed” in this Consent Decree will no longer
include those response costs or response actions that are within the scope of the exercised
reservation.
28.

The Parties further agree, and by entering this Consent Decree this Court finds,

that the complaint filed by the Plaintiffs/Counterdefendants, and the counterclaim filed by the
United States, in this action are civil actions within the meaning of Section 113(f)(1) of
CERCLA, 42 U.S.C. § 9613(f)(1), and that this Consent Decree constitutes a judicially-approved
settlement pursuant to which each Plaintiff/Counterdefendant and each Settling Federal Agency

18

has, as of the Effective Date, resolved liability to the United States within the meaning of
Section 113(f)(3)(B) of CERCLA, 42 U.S.C. § 9613(f)(3)(B).
29.

Each Plaintiff/Counterdefendant shall, with respect to any suit or claim brought

by it for matters related to this Consent Decree, notify the United States in writing no later than
60 days prior to the initiation of such suit or claim. Each Plaintiff/Counterdefendant also shall,
with respect to any suit or claim brought against it for matters related to this Consent Decree,
notify the United States in writing within 10 days after service of the complaint or claim upon it.
In addition, each Plaintiff/Counterdefendant shall notify the United States within 10 days after
service or receipt of any Motion for Summary Judgment, and within 10 days after receipt of any
order from a court setting a case for trial, for matters related to this Consent Decree.
30.

In any subsequent administrative or judicial proceeding initiated by the United

States for injunctive relief, recovery of response costs, or other relief relating to the Site,
Plaintiffs/Counterdefendants (and, with respect to a State action, Settling Federal Agencies) shall
not assert, and may not maintain, any defense or claim based upon the principles of waiver, res
judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon any
contention that the claims raised by the United States in the subsequent proceeding were or
should have been brought in the instant case; provided, however, that nothing in this Paragraph
affects the enforceability of the Covenants by the United States set forth in Section VIII.
XII.
31.

ACCESS TO INFORMATION

Plaintiffs/Counterdefendants shall provide to the United States, upon request,

copies of all records, reports, documents, and other information (including records, reports,
documents, and other information in electronic form) (hereinafter referred to as “Records”)
within their possession or control or that of their contractors or agents relating to activities at the

19

Site including, but not limited to, sampling, analysis, chain of custody records, manifests,
trucking logs, receipts, reports, sample traffic routing, correspondence, or other documents or
information regarding the Site.
32.

Privileged and Protected Claims.
a.

Plaintiffs/Counterdefendants may assert that all or part of a Record is

privileged or protected as provided under federal law, provided they comply with
Paragraph 32.b, and except as provided in Paragraph 32.c.
b.

If Plaintiffs/Counterdefendants assert a claim of privilege or protection,

they shall provide the United States with the following information regarding such
Record: its title; its date; the name, title, affiliation (e.g., company or firm), and address
of the author, each addressee, and of each recipient; a description of the Record’s
contents; and the privilege or protection asserted. If a claim of privilege or protection
applies only to a portion of a Record, Plaintiffs/Counterdefendants shall provide the
Record to the United States in redacted form to mask the privileged or protected
information only. Plaintiffs/Counterdefendants shall retain all Records that they claim to
be privileged or protected until the United States has had a reasonable opportunity to
dispute the privilege or protection claim and any such dispute has been resolved in the
Plaintiffs’/Counterdefendants’ favor.
c.

Plaintiffs/Counterdefendants may make no claim of privilege or protection

regarding:
(1)

any data regarding the Site, including but not limited to, all

sampling, analytical, monitoring, hydrogeologic, scientific, chemical,

20

radiological, or engineering data, or the portion of any other Record that
evidences conditions at or around the Site; or
(2)

the portion of any Record that Plaintiffs/Counterdefendants are

required to create or generate pursuant to this Consent Decree.
33.

Business Confidential Claims. Plaintiffs/Counterdefendants may assert that all or

part of a Record submitted to the United States under this Section or Section XIII (Retention of
Records) is business confidential to the extent permitted by and in accordance with
Section 104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R. 2.203(b).
Plaintiffs/Counterdefendants shall segregate and clearly identify all Records or parts thereof
submitted under this Consent Decree for which Plaintiffs/Counterdefendants assert a business
confidentiality claim. Records submitted to the United States determined to be confidential by
the United States will be accorded the protection specified in 40 C.F.R. Part 2, Subpart B. If no
claim of confidentiality accompanies Records when they are submitted to the United States, or if
the United States has notified Plaintiffs/Counterdefendants that the Records are not confidential
under the standards of Section 104(e)(7) of CERCLA or 40 C.F.R. Part 2 Subpart B, the public
may be given access to such Records without further notice to Plaintiffs/Counterdefendants.
34.

Notwithstanding any provision of this Consent Decree, the United States retains

all of its information gathering and inspection authorities and rights, including enforcement
actions related thereto, under CERCLA, RCRA, and any other applicable statutes or regulations.
XIII. RETENTION OF RECORDS
35.

Until five (5) years after the issuance of the notice of completion of the UAO,

each Plaintiff/Counterdefendant shall preserve and retain all non-identical copies of Records now
in its possession or control, or that come into its possession or control, that relate in any manner

21

to its liability under CERCLA with respect to the Site, provided, however, that
Plaintiffs/Counterdefendants who are potentially liable as owners or operators of the Site must
retain, in addition, all Records that relate to the liability of any other person under CERCLA with
respect to the Site. Each of the above record retention requirements shall apply regardless of any
corporate retention policy to the contrary.
36.

After the conclusion of the document retention period in the preceding paragraph,

Plaintiffs/Counterdefendants shall notify the United States at least 90 days prior to the
destruction of any such Records, and, upon request by the United States, except as provided in
Paragraph 32 (Privileged and Protected Claims), Plaintiffs/Counterdefendants shall deliver any
such Records to EPA.
37.

Each Plaintiff/Counterdefendant certifies individually that, to the best of its

knowledge and belief, after thorough inquiry, it has not altered, mutilated, discarded, destroyed
or otherwise disposed of any Records relating to its potential liability regarding the Site since
notification of potential liability by the United States or the State and that it has fully complied
with any and all the United States and State requests for information regarding the Site pursuant
to Sections 104(e) and 122(e)(3)(B) of CERCLA, 42 U.S.C. §§ 9604(e) and 9622(e)(3)(B),
Section 3007 of RCRA, 42 U.S.C. § 6927, and state law.
38.

The United States acknowledges that each Settling Federal Agency (a) is subject

to all applicable Federal record retention laws, regulations, and policies; and (b) has certified that
it has fully complied with any and all the United States and State requests for information
regarding the Site pursuant to Sections 104(e) and 122(e)(3)(B) of CERCLA, 42 U.S.C.
§§ 9604(e) and 9622(e)(3)(B), Section 3007 of RCRA, 42 U.S.C. § 6927, and state law.

22

XIV. NOTICES AND SUBMISSIONS
39.

Whenever, under the terms of this Consent Decree, notice is required to be given

or a document is required to be sent by one party to another, it shall be directed to the individuals
at the addresses specified below, unless those individuals or their successors give notice of a
change to the other Parties in writing. Except as otherwise provided, notice to a Party by email
(if that option is provided below) or by regular mail in accordance with this Section satisfies any
notice requirement of the Consent Decree regarding such Party.
As to the United States:
As to DOJ by email:
[e-mail]
As to DOJ by mail:
EES Case Management Unit
U.S. Department of Justice
Environment and Natural Resources Division
P.O. Box 7611
Washington, D.C. 20044-7611
Re: DJ #90-11-3-11380/1
And:
Chief
U.S. Department of Justice
Environment and Natural Resources Division
Environmental Defense Section
P.O. Box 7611
Washington, D.C. 20044-7611
Re: DJ #90-11-6-19727
As to EPA:
Pamela Travis
Assistant Regional Counsel
U.S. Environmental Protection Agency, Region VI
1445 Ross Avenue, Suite 1200 6RC-S
Dallas, TX 75202
[e-mail]

23

As to the USDA/USFS:
Kenneth Paur
Acting Regional Attorney
USDA Office of the General Counsel
740 Simms. St. #309
Golden, CO 80401
[e-mail]
As to the DOE:
Bettina Mumme
U.S. Department of Energy
Office of the General Counsel
Litigation Division
FORS, Room 6H-065
1000 Independence Ave, SW
Washington, DC 20585
[e-mail]
As to Plaintiffs/Counterdefendants:
As to EPNG:
Daniel J. Schnee
Assistant General Counsel
Kinder Morgan, Inc.
Two North Nevada
Colorado Springs, CO 80903
Telephone: [phone]
Email: [e-mail]
As to Homestake:
Peter Webster
General Counsel United States
Barrick Gold of North America, Inc.
310 South Main Street, SLC, UT 84101
Telephone: [phone]
Email: [e-mail]
As to United Nuclear:
Kirk R. Macfarlane
Executive Counsel – Property and Risk Management
Global Operation, Environment, Health & Safety
GE
640 Freedom Business Center
24

King of Prussia, PA 19406
Telephone: [phone]
Email: [e-mail]
XV.
40.

RETENTION OF JURISDICTION

This Court shall retain jurisdiction over this matter for the purpose of interpreting

and enforcing the terms of this Consent Decree.
XVI. INTEGRATION/APPENDICES
41.

This Consent Decree and its appendices constitute the final, complete, and

exclusive agreement and understanding among the Parties with respect to the settlement
embodied in this Consent Decree. The Parties acknowledge that there are no representations,
agreements, or understandings relating to the settlement other than those expressly contained in
this Consent Decree. The following appendices are attached to and incorporated into this
Consent Decree: “Appendix A” is a map of the Site and “Appendix B” is the UAO, including its
appendices.
XVII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
42.

This Consent Decree shall be lodged with the Court for a period of at least

30 days for public notice and comment. The United States reserves the right to withdraw or
withhold its consent if the comments regarding the Consent Decree disclose facts or
considerations that indicate that this Consent Decree is inappropriate, improper, or inadequate.
Plaintiffs/Counterdefendants consent to the entry of this Consent Decree without further notice.
43.

If for any reason this Court should decline to approve this Consent Decree in the

form presented, this agreement is voidable at the sole discretion of any Party and the terms of the
agreement may not be used as evidence in any litigation between the Parties.

25

Signature Page for Consent Decree Regarding San Mateo Mine Site
FOR THE UNITED STATES OF AMERICA:

Dated:

~ 12 1 ~ /
"~
JON THAN BRI
BILL
Dep ty Assistant Attorney General
Environment and Natural Resources Division

Dated:

~

~
2I
EMILY C.PO ERS
ASIA MCNEIL-WOMACK
Trial Attorneys
Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611
Phone:[phone]
Fax:[phone]
Email: [e-mail]

Dated:

~,l Z~'~, L7

~~'~
ERICA ZILIOLI
SIMI BRAT
Trial Attorneys
Environmental Defense Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611
Phone:[phone]
Fax:[phone]
Email: [e-mail]

27

Y

Dated:

-zz-t
lI ted Sta
District
ew Mexico
P.O. Box 607
Albuquerque, NM 871 03
As

Phone: [phone]

Email: [e-mail]

28

Appendix
A

CIBOLA CO

MC KINLEY CO

Sta

te

±

Ro

ute

-6

05

New Mexico
Map Location
Albuquerque

CIBOLA

NATIONAL

FOREST

San Mateo Mine
Site Boundary
National Forest Boundary

CI
BO

LA

Mine footprint area
approximately 220
Acres

NA
TI
ON
AL

0

500 1,000
Feet

E ST
FOR

San Mateo Mine Site
Cibola National Forest
New Mexico
Base Map Scale: 14,000
USGS Topographic Map
San Mateo, NM

Appendix A
Appendix A - Consent Decree

2,000

Appendix
B

UNITED STATES DEPARTMENT OF AGRICULTURE

UNITED STATES FOREST SERVICE

REGION THREE

In the Matter of
IN THE MATTER OF

UNILATERAL ADMINISTRATIVE
ORDER FOR REMOVAL ACTION

SAN MATEO MINE SITE,
Cibola County, New Mexico

UNITED NUCLEAR CORPORATION,
EL PASO NATURAL GAS COMPANY,
HOMEST AKE MINING COMPANY OF
CALIFORl'fIA, and WESTERN ENERGY
DEVELOPMENT CORPORATION
Respondents

Appendix B - Consent Decree

Proceeding Under Section 106(a) the
Comprehensive Environmental Response,
Compensation, and Liability Act
as amended, 42 U.S.c. § 9606(a)

I. JURISDICTION AND GENERAL PROVISIONS ................................................................... 3

II. PARTIES BOUND ................................................................................................................... 3

III. DEFINITIONS ......................................................................................................................... 5

IV. FINDINGS OF FACT ............................................................................................................. 8

V. CONCLUSIONS OF LAW AND DETERMINATIONS ...................................................... 11

VI. ORDER................................................................................................................................... 12

VII. NOTICE OF INTENT TO COMPLy .................................................................................. 13

VIII. FOREST SERVICE ON-SCENE COORDINATOR ......................................................... 13

IX. WORK TO BE PERFORMED .............................................................................................. 14

X. QUALITY ASSURANCE, SAMPLING AND DATA ANALYSIS ..................................... 21

XI. PROGRESS REPORTS ......................................................................................................... 22

XII. THE FOREST SERVICE REVIEW OF SUBMISSIONS .................................................. 23

XIII. ADDITIONAL RESPONSE ACTIONS AND FAILURE TO ATTAIN ........................... 23

XIV. THE FOREST SERVICE PERIODIC REVIEW ............................................................... 25

XV. ENDANGERMENT AND EMERGENCY RESPONSE .................................................... 25

XVI. COMPLIANCE WITH APPLICABLE LAWS ................................................................. 26

XVII. ACCESS TO PROPERTY NOT OWNED BY THE UNITED STATES ........................ 27

XVIII. RECORD PRESERVATION, RETENTION, AND AVAILABILITy .......................... 29

XIX. DELAY IN PERFORMANCE ........................................................................................... 31

XX. INSURANCE ....................................................................................................................... 32

XXI. UNITED STATES NOT LIABLE ..................................................................................... 32

XXII. ENFORCEMENT AND RESERVATIONS ..................................................................... 33

XXIII. ADMINISTRATIVE RECORD ...................................................................................... 34

XXIV. SEVERABILITY ............................................................................................................. 34

XXV. OPPORTUNITY TO CONFER ........................................................................................ 34

XXVI. EFFECTIVE DATE ......................................................................................................... 35

2

Appendix B - Consent Decree

UNILATERAL ADMINISTRATIVE ORDER

FOR REMOVAL ACTION

I. JURISDICTION AND GENERAL PROVISIONS
1. This Unilateral Administrative Order ("UAO" or "Order") is issued pursuant to the
authority vested in the President ofthe United States by Section 106(a) ofthe
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended, 42 U.S.c. § 9606(a), and delegated to the Secretary of Agriculture by
Executive Order 12580, as amended by Executive Order 13016,61 Fed. Reg. 45871
(August 30, 1996). This authority was further delegated to the Director of the USDA
Office of Procurement and Property Management and the Chief of the Forest Service, to
be exercised with the concurrence of the General Counsel. 7 C.F.R. § 2.93(a)(17)(xiv).
2. This Order directs Respondents to implement the Removal Action for the San Mateo
Mine Site ("the Removal Action"), described in the Statement of Work ("SOW")
attached as Appendix A. This Order is issued to Respondents United Nuclear
Corporation ("UNC"), EI Paso Natural Gas Co. ("El Paso"), Homestake Mining Co. of
California ("Homestake"), and Western Energy Development Corp. ("WEDC"),
collectively ("Respondents").

II. PARTIES BOUND
3. This Order shall apply to and be binding upon Respondents, their directors, officers,
employees, representatives, agents, successors, receivers, trustees, and assigns.
Respondents are responsible for carrying out all activities required by this Order. No

3

Appendix B - Consent Decree

change in the ownership, corporate status, or other control of Respondents shall alter
Respondents' responsibilities under this Order.
4. Respondents shall provide a copy of this Order to any prospective owners or successors
before a controlling interest in any of Respondents' assets, property rights, or stock are
transferred to the prospective owner or successor. Respondents shall provide a copy of
this Order to each contractor, sub-contractor, laboratory, or consultant retained to perfonn
any Work under this Order, within five (5) days after the effective date of this Order or
on the date such services are retained, whichever date occurs later. Respondents shall
also provide a copy of this Order to each person representing Respondents with respect to
the Site or the Work and shall condition all contracts and subcontracts entered into
hereunder upon perfonnance of the Work in confonnity with the tenns of this Order.
With regard to the activities undertaken pursuant to this Order, each contractor and
subcontractor shall be deemed to be related by contract to Respondents within the
meaning of Section l07(b)(3) ofCERCLA, 42 U.S.C. § 9607(b)(3). Notwithstanding the
tenns of any contract, Respondents are responsible for compliance with this Order and
for ensuring that its contractors, subcontractors and agents comply with this Order, and
perfonn any Work in accordance with this Order.
5. Respondents are jointly and severally liable for implementing all activities required by
this Order. Compliance or noncompliance by one Respondent with any provision of this
Order shall not excuse or justify noncompliance by any other Respondent. No
Respondent shall interfere in any way with the perfonnance of Work in accordance with
this Order by any other Respondent. In the event ofthe insolvency or other failure of any

4

Appendix B - Consent Decree

one Respondent to implement the requirements of this order, the remaining Respondents
shall complete all such requirements.

III. DEFINITIONS
6. Unless otherwise expressly provided herein, terms used in this Order which are defined in
CERCLA or in regulations promulgated under CERCLA shall have the meaning assigned
to them in the statute or its implementing regulations. Whenever terms listed below are
used in this Order or in the appendices or documents attached to this Order or
incorporated by reference into this Order, the following definitions shall apply:
a.

"Action Memorandum" or "Action Memo" shall mean the Forest Service's

Removal Action Approval Memorandum signed on April 18, 2011, by the Regional
Forester, Southwestern Region, and all attachments thereto.
b.

"CERCLA" shall mean the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, as amended, 42 U.S.c. §§ 9601, et seq.

c.

"Day" shall mean a calendar day unless expressly stated to be a working day.

"Working day" shall mean a day other than a Saturday, Sunday, or Federal holiday. In
computing any period of time under this Order, where the last day would fall on a
Saturday, Sunday, or Federal holiday, the period shall run until the end of the next
working day.
d.

"El Paso" shall mean the EI Paso Natural Gas Co., a Delaware corporation.

e.

"EPA" shall mean the United States Environmental Protection Agency.

f.

"Forest Service" shall mean the United States Department of Agriculture, Forest

Service, and any successor departments or agencies of the United States.

5

Appendix B - Consent Decree

g.

"Homestake" shall mean the Homestake Mining Co. of California, a California

corporation.
h.

"National Contingency Plan" or "NCP" shall mean the National Oil and

Hazardous Substances Pollution Contingency Plan, promulgated pursuant to Section 105
ofCERCLA, 42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, including any
amendments thereto.
1.

"O&M" shall mean the operation, monitoring and maintenance activities required

under this Order and approved by the Forest Service.
J.

"On-Scene Coordinator" shall mean the Forest Service's On-Scene Coordinator

for Work at the Site.
k.

"Order" shall mean this Unilateral Administrative Order and all attached

appendices and documents. In the event of a conflict between this Order and any
appendix this Order shall control.

1.

"Paragraph" shall mean a portion of this Order identified by an Arabic numeral.

m.

"Project Manager" shall mean Respondents' Project Manager for the Work at the

Site.
n.

"Removal Action" shall mean those activities to be undertaken by Respondents as

specified in more detail in the SOW or this Order.
o.

"Respondents" shall mean United Nuclear Corporation, EI Paso Natural Gas Co.,

Homestake Mining Co. of California, and Western Energy Development Corp.
p.

"Response Costs" shall mean all costs, including direct costs, indirect costs, and

accrued interest incurred by the United States to perform or support response actions at
the Site. Response costs include but are not limited to the costs of overseeing the Work,

6

Appendix B - Consent Decree

such as the costs of reviewing or developing plans, reports and other items pursuant to
this Order and costs associated with verifying the Work.
q.

"Statement of Work" or "SOW" shall mean the statement of work for

performance of the Removal Action at the Site, as set forth in Appendix A to this Order.
The SOW is incorporated into this Order and is an enforceable part ofthis Order.
r.

"Section" shall mean a portion of this Order identified by a Roman numeral and

includes one or more paragraphs.
s.

"Site" shall mean the San Mateo Mine Site located on the Cibola National Forest.

The Site is located in Cibola County about 15 miles northeast of Grants, New Mexico.
The Site is located approximately 5.5 miles west of the town of San Mateo. The legal
description is the Northeast (NE) 114, Section 30, Southeast (SE) 1/4 of the Southeast
(SE) 114 of Section 19, and the Federal portion of the West (W) 12 of the Northwest
(NW) 114 of Section 29, Township 13 North, Range 8 West, ofthe New Mexico Principle
Meridian. The Site includes lands under the jurisdiction, custody, and control of the
Forest Service. A map showing the general location of the Site is included in the SOW
attached as Appendix A.
t.

"UNC" shall mean Respondent United Nuclear Corp., a Delaware corporation.

u.

"United States" shall mean the United States of America.

v.

"USDA" shall mean the United States Department of Agriculture and any

successor departments or agencies ofthe United States.
w.

"WEDC" shall mean the Western Energy Development Corp., a Nevada

corporation.

7

Appendix B - Consent Decree

x.

"Work" shall mean all activities Respondents are required to perform under this

Order.

IV. FINDINGS OF FACT
7. The unpatented mining claims at the San Mateo Mine Site ("the Site") were owned and
operated by Rare Metals Corp., (a predecessor company to El Paso) from 1955 to 1962.
Rare Metals Corporation began mine development at the San Mateo Mine with the
construction of the mine shaft, beginning in 1957. The fourteen hundred foot deep shaft
onsite was completed in 1959, and the first ore was shipped offsite for processing that
same year. Rare Metals Corporation merged into EI Paso in 1962.
8. Uranium ore was mined onsite from a deposit in the Brushy Basin Sandstone
approximately a thousand feet below the surface. When mining operations were
underway, the Site included typical work buildings, a deep shaft, a mine waste dump, and
settling ponds. The shaft included a pump to dewater the workings. When ore was
brought to the surface, it was unloaded and measured into trucks, which transported the
ore to a uranium processing mill located offsite. Waste rock was disposed of onsite in a
series of terraces called the Main Waste Rock Pile. The North Pad, consisting of material
similar to the Main Waste Rock Pile, was constructed on a flat area northeast ofthe Main
Waste Rock Pile.
9. From 1962 until 1964, EI Paso and EI Paso Energy, another company which later merged
into El Paso, mined the Site.
10. In 1964, UNC bought the unpatented mining claims at the Site from El Paso. UNC
mined the Site from 1964 to 1971. The San Mateo Mine produced almost 900,000 tons

8

Appendix B - Consent Decree

of ore over its operating lifetime. Between 1971 and 1981, lJNC conducted minor
exploration work and claim assessment work onsite.
11. In 1981, UNC sold the unpatented mining claims on site to Homestake. In 1984,
Homestake notified the Forest Service of its intent to abandon all claims and cease all
operations, but it continued to perfonn assessment work and maintained the claims onsite
through the 1988 assessment year.
12. In 2004, WEDC acquired a number of mining claims in the area of the Site, including
some claims onsite, and it currently holds those claims.
13. At present, all buildings and surface facilities have been removed and only small
remnants of the fonner surface structures remain. The main shaft and any emergency or
air shafts associated with the mine have been sealed.
14. The Main Waste Rock Pile, North Pad, Sheet Wash Area and several settling ponds
remain at the Site. The Main Waste Rock Pile contains approximately 160,000 cubic
yards of uncovered and uncontrolled mine waste. The North Pad contains approximately
13,000 cubic yards of contaminated materiaL The Sheet Wash Area contains
approximately 7,000 cubic yards of contaminated material. Surface soil and drainages
surrounding the mining disturbance are contaminated by wind-borne dust and sediment
transported by runoff.
15. The mine waste onsite contains radium 226 & 228, thorium 228, 230 & 232, uranium
234,235 and 238., and these contaminants are being released from the Site. The primary
exposure pathway at the Site is direct exposure to waste rock, pad material, and surface
soils and sediments contaminated with radionuclides. Previous investigations and the
EE/CA, September, 2010, detennined that the risk to humans has increased due to past

9

Appendix B - Consent Decree

uranium mining activities. Umestricted land use exposes humans to radio nuclides in the
uncovered and unlined Main Waste Rock Pile and North Pad areas, and in and around the
settling ponds by ingestion, inhalation, and dermal contact. There are elevated levels of
radionuclides far above cleanup standards in several distinct areas of the Site, including
samples from drainage pathways, waste rock, the settling pond, and the North Pad.
Surface drainage through the uncovered and uncontrolled Main Waste Rock Pile and the
North Pad which contain uranium, thorium, and radium, carry contaminated soil to San
Mateo Creek. The exposed surface of the Main Waste Rock Pile and the North Pad areas
are also vulnerable to wind erosion, which causes additional off site migration of
radionuclide contaminants in windborne dust emissions from the Site.
16. On April 18, 2011, the Regional Forester for the Southwestern Region approved a
Removal Action Approval Memorandum selecting the Removal Action for the Site. The
Removal Action provides a comprehensive cleanup of surface contamination onsite. As
set forth more particularly in the SOW, construction activities associated with the
Removal Action include excavation and consolidation of waste rock onto the Main Waste
Rock Pile footprint, and capping with an Evapotranspiration (ET) Cover. The
evapotranspiration cover will be engineered, designed, and constructed to provide
superior protection for a long period of time. The ET cover stores and releases infiltrated
precipitation such that there is no net flux of water through the soil layer. Other
construction activities include re-vegetation of approximately 35 acres within areas in
and around the Main Waste Rock Pile; installation of diversion channels up-gradient of
the consolidation cell to control surface water; runoff protection on the ET cover; and
installation of a 8-foot high chain link fence to enclose approximately 17 acres. The

10

Appendix B - Consent Decree

Removal Action will minimize or eliminate the release of waste material contaminated
with radionuc1ides from the Site into the San Mateo Creek watershed or onto nearby
private land via the surface water pathway The Removal Action will reduce potential risk
of exposure to gamma radiation and direct contact, inhalation, or ingestion of
radionuc1ides by either people or wildlife.
17. Pursuant to CERCLA and Executive Order 12580, the Forest Service is the lead agency
for response actions at the Site.

18. The Forest Service has incurred, and continues to incur, response costs associated with
the Site.

v. CONCLUSIONS OF LAW AND DETERMINATIONS
19. The San Mateo Mine Site is a "facility" as defined in Section 101(9) ofCERCLA, 42
U.S.C. § 9601(9).
20. Respondents are "persons" as defined in Section 101(21) ofCERCLA, 42 U.S.C. §
9601(21).
21. Respondents are "liable parties" as defined in Section 107(a) ofCERCLA, 42 U.S.C. §
9607(a), and are subject to this Order under Section 106(a) ofCERCLA, 42 U.S.C. §
9606(a).
22. Radium 226 & 228, thorium 228, 230 & 232, uranium 234, 235 & 23, are "hazardous
substances" as defined in Section 101(14) ofCERCLA, 42 U.S.C. § 9601(14).
23. These hazardous substances are being released from the Site.
24. The disposal and migration of hazardous substances from the Site are a "release" as
defined in Section 101(22) ofCERCLA, 42 U.S.C. § 9601(22).

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25. The release of hazardous substances from the facility presents an imminent and
substantial endangerment to the public health or welfare or the environment.
26. The contamination and endangerment at this Site constitute an indivisible injury. The
actions required by this Order are necessary to protect the public health, welfare, and the
environment.

VI. ORDER
27. This Order is issued to:
a.

Respondent EI Paso Natural Gas Company directly, and through predecessor

companies, owned and operated the Site as a mine from approximately 1955 until 1964,
when it sold the Site to UNC. During that time, hazardous substances, including
radionuclides, were disposed of at the Site and released from the Site.
b.

Respondent United Nuclear Corporation owned and operated the Site from

approximately 1964 until 1981. During that time, hazardous substances, including
radionuclides, were disposed of at the Site and released from the Site.
c.

Respondent Homestake Mining Co. of California owned and operated the Site

from approximately 1981 until 1989. During that time, hazardous substances, including
radionuclides, were released from the Site.
d.

Respondent Western Energy Development Corporation has owned and operated

the Site from approximately 2004 until the present. During that time, hazardous
substances, including radionuclides, were released from the Site.
28. Based on the foregoing, Respondents are hereby ordered to comply with the provisions of
this Order, including but not limited to all appendices to this Order, all documents

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incorporated by reference into this Order, and all schedules and deadlines in this Order,
attached to this Order, or incorporated by reference into this Order.

VII. NOTICE OF INTENT TO COMPLY
29. Respondents shall each notify the Forest Service in writing within seven (7) working
days after the Effective Date of this Order, as specified in Section XXVI, of
Respondents' irrevocable intent to comply with this Order. Failure of a Respondent to
provide such notification within this time period shall be a violation ofthis Order by that
Respondent. Respondents' written notice shall describe, using facts that exist on or prior
to the Effective date of this Order, any "sufficient cause" defenses asserted by
Respondents under Sections 106(b) and 107(c)(3) ofCERCLA. The absence ofa
response by the Forest Service to a notice required by this Paragraph shall not be deemed
to be acceptance of Respondents' assertions.

VIII. FOREST SERVICE ON-SCENE COORDINATOR
30. All communications, whether written or oral, from Respondents to the Forest Service
shall be directed to the Forest Service's On-Scene Coordinator. Respondents shall
submit to the Forest Service, three copies of all documents, including plans, reports, and
other correspondence, which are developed pursuant to this Order, and shall send these
documents by certified mail, return receipt requested, or overnight mail.
The Forest Service's On-Scene Coordinator is:

Steven John McDonald

New Mexico Statewide On-Scene Coordinator

Southwestern Regional Office

333 Broadway Blvd.

Albuquerque, New Mexico 87102

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Office Phone [phone]

Cell Phone [phone]

Fax [phone]

Email: [e-mail]

31. Two copies of all documents shall be sent to the On-Scene Coordinator, and one copy
shall be sent to:
Maria A. McGaha, P .E.

Regional Environmental Engineer

Southwestern Region

505-842-3837 (office)

505-301-1262 (cell)

[e-mail]

32. The Forest Service has the unreviewable right to change its On-Scene Coordinator. If
the Forest Service changes its On-Scene Coordinator, the Forest Service will inform
Respondents in writing of the name, address, and telephone number ofthe new On-Scene
Coordinator.
33. The Forest Service's On-Scene Coordinator shall have the authority lawfully vested in an
On-Scene Coordinator (OSC) by the NCP, 40 C.F.R. Part 300. The Forest Service's OnScene Coordinator shall have authority, consistent with the NCP, to halt any work
required by this Order, and to take any necessary response action when s/he determines
that conditions at the Site constitute an emergency situation or may present an immediate
threat to public health or welfare or the environment due to the release or threatened
release of waste material and/or hazardous substances.

IX. WORK TO BE PERFORMED
34. Respondents shall cooperate with the Forest Service in providing information regarding
the Work to the public. As requested by the Forest Service, Respondents shall participate
in the preparation of such information for distribution to the public and in public
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Appendix B - Consent Decree

meetings that may be held or sponsored by the Forest Service to explain activities at or
relating to the Site.
35. All aspects of the Work to be perfonned by Respondents pursuant to this Order shall be
under the direction and supervision of a qualified Project Manager the selection of which
shall be subject to approval by the Forest S.ervice. Within ten (10) days after the
Effective Date of this Order, Respondents shall notify the Forest Service in writing of the
name and qualifications of the Project Manager, including primary support entities and
staff, proposed to be used in carrying out work under this Order. Respondents' Project
Manager shall be responsible for overseeing Respondents' implementation of this Order.
Respondents shall have the right to change its Project Manager, subject to the Forest
Service's right to disapprove. If at any time Respondents propose to use a different
Project Manager, Respondents shall notify the Forest Service, in writing, and shall obtain
approval from the Forest Service before the new Project Manager perfonns any Work
under this Order.
36. The Forest Service will review Respondents' selection of a Project Manager according to
the tenns of this Paragraph. If the Forest Service disapproves of the selection of the
Project Manager, Respondents shall submit to the Forest Service within ten (10) days
after receipt of the Forest Service's disapproval of the Project Manager previously
selected, a list of Project Managers, including primary support entities and staff, that
would be acceptable to Respondents. The Forest Service will thereafter provide written
notice to Respondents of the names of the Project Managers that are acceptable to the
Forest Service. Respondents may then select any approved Project Manager from that
list and shall notify the Forest Service of the name of the Project Manager selected within

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seven (7) days of the Forest Service's designation of approved Project Managers. The
Forest Service retains the right to disapprove of Respondents' designated Project
Manager at any time during Respondents' performance of work. If the Forest Service
disapproves of the designated Project Manager, Respondents shall retain a different
Project Manager and shall notify the Forest Service of that person's name, address,
telephone number and qualifications within five (5) days following the Forest Service's
disapproval. Receipt by Respondents' Project Manager of any notice or communication
from the Forest Service relating to this Order shall constitute receipt by Respondents.
37. Within ninety (90) calendar days after the Effective Date of the Order, Respondents shall
submit a Work Plan ("Work Plan") to the Forest Service for review and approval. The
Work Plan is identified as Task 1 of the SOW. The Work Plan shall consist ofthe overall
strategy for performing the design, construction, operation, maintenance and monitoring
for the Removal Action. The Work Plan shall outline the specific tasks required to
implement the Removal Action, including a description of the technical approach,
personnel requirements, plans, specifications, permit requirements, submittals, and
deliverables. The Work Plan shall also include a schedule, in real time, for conducting all
activities associated with the Removal Action.
38. Upon written approval by the Forest Service, the Work Plan is incorporated into this
Order as a requirement ofthis Order and shall be an enforceable part of this Order.
39. Unless otherwise directed by the Forest Service, Respondents shall not commence Task 2
of the SOW prior to written approval of the Work Plan.
40. If Respondents seek to retain a construction contractor(s) to assist in the performance of
the Removal Action, then Respondents shall submit a copy of the contractor solicitation

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documents to the Forest Service not later than five (5) days after publishing the
solicitation documents.
41. Within twenty (20) days after the Forest Service approves the Final Design, Respondents

shall notify the Forest Service in writing of the name, title, and qualifications of any
construction contractor(s) proposed to be used in carrying out work under this Order. If
the Forest Service disapproves of the selection of the construction contractor(s),
Respondents shall submit to the Forest Service within ten (10) days after receipt of the
Forest Service's disapproval of the construction contractor(s) previously selected, a list of
construction contractors that would be acceptable to Respondents. The Forest Service
will thereafter provide written notice to Respondents of the names of the construction
contractors that are acceptable to the Forest Service. Respondents may then select any
approved construction contractor from that list and shall notify the Forest Service of the
name ofthe construction contractor(s) selected within seven (7) days ofthe Forest
Service's designation of approved construction contractors. The Forest Service retains
the right to disapprove Respondents' designated construction contractors(s) at any time
during Respondents' performance of work. If the Forest Service disapproves of the
designated construction contractor(s), Respondents shall retain a different construction
contractor(s) and shall notify the Forest Service of that person's name, address, telephone
number and qualifications within five (5) days following the Forest Service's
disapproval. If at any time Respondents propose to change the construction contractor(s),
Respondents shall notify the Forest Service and shall obtain approval from the Forest
Service as provided in this Paragraph, before the new construction contractor(s) performs
any work under this Order.

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42. The Work perfonned by Respondents pursuant to this Order shall, at a minimum, achieve
the perfonnance standards specified in the Action Memo and in the SOW.
43. Notwithstanding any action by the Forest Service, Respondents remain fully responsible
for achievement of the perfonnance standards in the Action Memo and SOW. Nothing in
this Order, or in the Forest Service's approval of the SOW, Work Plan, or approval of
any other submission, shall be deemed to constitute a warranty or representation of any
kind by the Forest Service that full perfonnance of the Removal Action will achieve the
perfonnance standards set forth in the Action Memo and in the SOW. Respondents'
compliance with such approved documents does not foreclose the Forest Service from
seeking additional work to achieve the applicable perfonnance standards.
44. Respondents shall, prior to any off-Site shipment of hazardous substances from the Site
to an out-of-state waste management facility, provide written notification to the
appropriate state environmental official in the receiving state and to the Forest Service's
On-Scene Coordinator of such shipment of hazardous substances.
45. The notification shall be in writing, and shall include the following infonnation, where
available: (1) the name and location of the facility to which the hazardous substances are
to be shipped; (2) the type and quantity of the hazardous substances to be shipped; (3) the
expected schedule for the shipment of the hazardous substances; and (4) the method of
transportation. Respondents shall notify the receiving state of major changes in the
shipment plan, such as a decision to ship the hazardous substances to another facility
within the same state, or to a facility in another state.
46. The identity of the receiving facility and state will be detennined by Respondents
following the award of the contract for Removal Action construction. Respondents shall

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Appendix B - Consent Decree

provide all relevant infonnation, including infonnation under the categories noted in the
above Paragraph, on the off-Site shipments as soon as practicable after the award of the
contract and before the hazardous substances are actually shipped. Before shipping any
hazardous substances, pollutants, or contaminants from the Site to an off-Site location,
Respondents shall provide the Forest Service with certification that the proposed
receiving facility is operating in compliance with the requirements of CERCLA Section
121(d)(3), 42 U.S.c. § 9621(d)(3), and 40 C.F.R. § 300.440. Respondents shall only
send hazardous substances, pollutants, or contaminants from the Site to an off-Site
facility that complies with the requirements of the statutory provision and regulation cited
in the preceding sentence.
47. Within thirty (30) days after Respondents conclude that the Removal Action has (i) been
fully perfonned, (ii) achieved the cleanup goals and objectives set forth in the Action
Memo, (iii) is operational and functional, and (iv) is functioning properly and is
perfonning as designed, Respondents shall so notify the Forest Service and shall schedule
and conduct a pre-certification inspection to be attended by Respondents and the Forest
Service. The pre-certification inspection shall be followed by a written report submitted
within thirty (30) days of the inspection by a registered professional engineer and
Respondent's Project Manager certifying that the Removal Action has been completed in
full satisfaction of the requirements of this Order. If, after completion of the pre­
certification inspection and receipt and review of the written report, the Forest Service
detennines that the Removal Action or any portion thereof has not been completed in
accordance with this Order, the Forest Service shall notify Respondents in writing of the
activities that must be undertaken to complete the Removal Action and shall set forth in

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the notice a schedule for performance of such activities. Respondents shall perform all
activities described in the notice in accordance with the specifications and schedules
established therein. If the Forest Service concludes, following the initial or any
subsequent certification of completion by Respondents that the Removal Action has been
fully performed in accordance with this Order, the Forest Service may notify
Respondents that the Removal Action has been fully performed. The Forest Service's
notification shall be based on present knowledge and Respondents' certification to the
Forest Service, and shall not limit the Forest Service's right to perform periodic reviews
pursuant to Section 121(c) ofCERCLA, 42 U.S.C. § 9621(c), or to take or require any
action that in the judgment of the Forest Service is appropriate at the Site, in accordance
with 42 U.S.C. §§ 9604,9606, or 9607. Upon notification from the Forest Service that
the Removal Action has been fully performed and is operational and functional,
Respondents shall initiate O&M for the Removal Action. Respondents shall conduct
O&M for the Removal Action for a limited period of five years from the date of the
Forest Service's notification to Respondents that the Removal Action has been performed
and is operational and functional.
48. Within thirty (30) days after Respondents conclude that all phases of the Work have been
fully performed, that the Performance Standards have been attained, and that all O&M
activities required under this Order have been completed and performed, Respondents
shall submit to the Forest Service a written report by a registered professional engineer
certifying that the Work has been completed in full satisfaction of the requirements of
this Order. The Forest Service shall require such additional activities as may be
necessary to complete the Work or the Forest Service may, based upon present

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Appendix B - Consent Decree

knowledge and Respondents' certification to the Forest Service, issue written notification
to Respondents that the Work has been completed, as appropriate, in accordance with the
procedures set forth herein for Respondents' certification of completion of the Removal
Action. The Forest Service's notification shall not limit the Forest Service's right to
perfonn periodic reviews pursuant to Section 121(c) ofCERCLA, 42 U.S.c. § 9621(c),
or to take or require any action that in the judgment ofthe Forest Service is appropriate at
the Site, in accordance with 42 U.S.C. §§ 9604, 9606, or 9607.

x.

QUALITY ASSURANCE, SAMPLING AND DATA ANALYSIS

49. Respondents shall use the quality assurance, quality control, and chain of custody
procedures described in the "EPA Requirements for Quality Assurance Project Plans
(QAlR -5)" (EP Al2401B-0 11003, March 2001 or most recent version) and "Guidance for

Quality Assurance Project Plans (QAlG-5)" (EPAl6001R-02/009, December 2002 or
subsequently issued guidance), and any amendments to these documents, while
conducting all sample collection and analysis activities required herein by any plan. To
provide quality assurance and maintain quality control, Respondents shall:
a.

Use only laboratories that have a documented quality system that complies with

ANSI!ASQC E4-1994, "Specifications and Guidelines for Quality Systems for

Environmental Data Collection and Environmental Technology Programs," (American
National Standard, January 5, 1995) and "EPA Requirements for Quality Management
Plans (QAlR-2)" (EPAl240/B-01/002, March 2001) or equivalent documentation as
detennined by EPA. The Forest Service may consider laboratories accredited under the
National Environmental Laboratory Accreditation Program (NELAP) to meet the quality
system requirements.
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Appendix B - Consent Decree

b.

Ensure that the laboratory used by Respondents for analyses, performs according

to a method or methods deemed satisfactory to the Forest Service and submits all
protocols to be used for analyses to the Forest Service at least thirty (30) days before
beginning analysis.
c.

Ensure that the Forest Service personnel and the Forest Service's authorized

representatives are allowed access to the laboratory and personnel utilized by
Respondents for analyses.
50. Respondents shall notify the Forest Service not less than fourteen (14) days in advance of
any sample collection activity. At the request of the Forest Service, Respondents shall
allow split or duplicate samples to be taken by the Forest Service or its authorized
representatives, of any samples collected by Respondents with regard to the Site or
pursuant to the implementation ofthis Order. In addition, the Forest Service shall have
the right to take any additional samples that the Forest Service deems necessary.

XI. PROGRESS REPORTS
51. In addition to the other deliverables set forth in this Order, Respondents shall provide
monthly progress reports to the Forest Service with respect to actions and activities
undertaken pursuant to this Order. The monthly progress reports shall be submitted on or
before the 15 th day of each month following the Effective Date of this Order.
Respondents' obligation to submit monthly progress reports shall continue until the
Forest Service gives Respondents written notice that the Work has been completed.
52. Monthly progress reports shall be prepared as outlined in the SOW.

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XII. THE FOREST SERVICE REVIEW OF SUBMISSIONS
53. After review of any deliverable, plan, report or other item which is required to be
submitted for review and approval pursuant to this Order, the Forest Service may: (a)
approve the submission; (b) approve the submission with modifications; (c) disapprove
the submission and direct Respondents to re-submit the document after incorporating the
Forest Service's comments; or (d) disapprove the submission and assume responsibility
for performing all or any part of the response action. As used in this Order, the terms
"approval by the Forest Service," "the Forest Service approval," or a similar term means
the action described in paragraphs (a) or (b) of this Paragraph.
54. In the event of approval or approval with modifications by the Forest Service,
Respondents shall proceed to take any action required by the plan, report, or other item,
as approved or modified by the Forest Service.
55. Upon receipt of a notice of disapproval or a request for a modification, Respondents
shall, within twenty-one (21) days or such longer time as specified by the Forest Service
in its notice of disapproval or request for modification, correct the deficiencies and
resubmit the plan, report, or other item for approval. Notwithstanding the notice of
disapproval, or approval with modifications, Respondents shall proceed, at the direction
of the Forest Service, to take any action required by any non-deficient portion ofthe
submission.
56. If any submission is not approved by the Forest Service, Respondents shall be deemed to
be in violation of this Order.

XIII. ADDITIONAL RESPONSE ACTIONS AND FAILURE TO ATTAIN

PERFORMANCE STANDARDS
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Appendix B - Consent Decree

57. The Forest Service may determine that in addition to the Work identified in this Order
and attachments to this Order, additional response activities may be necessary to protect
human health and the environment. Ifthe Forest Service determines that additional
response activities are necessary, the Forest Service may require that Respondents submit
a work plan for additional response activities. The Forest Service may also require that
Respondents modify any plan, design, or other deliverable required by this Order,
including any approved modifications.
58. Not later than thirty (30) days after receiving the Forest Service's notice that additional
response activities are required pursuant to this Section, Respondents shall submit a work
plan for the response activities to the Forest Service for review and approval. Upon
approval by the Forest Service, the work plan is incorporated into this Order as a
requirement of this Order and shall be an enforceable part of this Order. Upon approval
ofthe work plan by the Forest Service, Respondents shall implement the work plan
according to the standards, specifications, and schedule in the approved work plan.
Respondents shall notify the Forest Service oftheir intent to perform such additional
response activities within seven (7) days after receipt ofthe Forest Service's request for
additional response activities.
59. In the event that the Forest Service determines that additional response activities are
necessary to meet applicable performance standards in the SOW, the Forest Service may
notify Respondents that additional response actions are necessary.
60. Unless otherwise stated by the Forest Service, within thirty (30) days of receipt of notice
from the Forest Service that additional response activities are necessary to meet any
applicable performance standards, Respondents shall submit for approval by the Forest
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Appendix B - Consent Decree

Service a work plan for the additional response activities. The plan shall confonn to the
applicable requirements of Sections IX, X, and XVI of this Order. Upon the Forest
Service's approval of the plan pursuant to Section XII, Respondents shall implement the
plan for additional response activities in accordance with the provisions and schedule
contained therein.

XIV. THE FOREST SERVICE PERIODIC REVIEW
61. Under Section 121(c) ofCERCLA, 42 U.S.c. § 9621(c), and any applicable regulations,
the Forest Service may review the Site to assure that the Work perfonned pursuant to this
Order adequately protects human health and the environment. Until such time as the
Forest Service certifies completion of the Work, Respondents shall conduct the requisite
studies, investigations, or other response actions as detennined necessary by the Forest
Service in order to conduct the review under Section 121(c) of CERCLA. As a result of
any review perfonned under this Paragraph, Respondents may be required to perfonn
additional Work or to modify Work previously perfonned.

xv. ENDANGERMENT AND EMERGENCY RESPONSE
62. If any incidents, or change in Site conditions, during the actions conducted pursuant to
this Order causes or threatens to cause an additional release of hazardous substances from
the Site or an endangennent to the public health, welfare, or the environment,
Respondents shall immediately take all appropriate action. Respondents shall take these
actions in accordance with all applicable provisions of this Order, including, but not
limited to the Health and Safety Plan, in order to prevent, abate or minimize such release
or endangennent caused or threatened by the release. Respondents shall also
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Appendix B - Consent Decree

immediately notify the Forest Service's On-Scene Coordinator or, if the On-Scene
Coordinator is unavailable, Respondents shall notify the Forest Service Regional
Environmental Engineer, Southwestern Region, of the incident or Site conditions. If
Respondents fail to take action, then the Forest Service may respond to the release or
endangerment and reserves the right to pursue cost recovery.
63. In the event of any release of a hazardous substance above a reportable quantity,
Respondents shall immediately notify the Forest Service's On-Scene Coordinator and the
National Response Center. Respondents shall submit a written report to the Forest
Service within seven (7) days after such release, setting forth the events that occurred and
the measures taken or to be taken to mitigate any release or endangerment caused or
threatened by the release and to prevent the reoccurrence of such a release. This
reporting requirement is in addition to, not in lieu of, reporting under CERCLA Section
103(c) and Section 304 of the Emergency Planning and Community Right-To-Know Act
of 1986, 42 U.S.C. § 11004.
64. Nothing in the preceding Paragraph shall be deemed to limit any authority ofthe Forest
Service to take, direct, or order all appropriate action to protect human health and the
environment or to prevent, abate, or minimize an actual or threatened release of
hazardous substances on, at, or from the Site.

XVI. COMPLIANCE WITH APPLICABLE LAWS
65. All activities by Respondents pursuant to this Order shall be performed in accordance
with the requirements of all applicable Federal, state, and local laws and regulations. The
Forest Service has determined that the activities contemplated by this Order are
consistent with the NCP.

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Appendix B - Consent Decree

66. Except as provided in Section 121(e) ofCERCLA and the NCP, no pennit shall be
required for any portion of the Work conducted entirely on-Site. Where any portion of
the Work requires a Federal, state, or local pennit or approval, Respondents shall submit
timely applications and take all other actions necessary to obtain and to comply with all
such pennits or approvals.
67. This Order is not, and shall not be construed to be a pennit issued pursuant to any
Federal, state, or local statute or regulation.
68. All materials removed from the Site shall be disposed of or treated at a facility approved
by the Forest Service's On-Scene Coordinator and in accordance with Section 121(d)(3)
ofCERCLA, 42 U.S.c. § 9621(d)(3), EPA's Off-Site Rule, 40 C.F.R. § 300.440, and
with all other applicable Federal, state, and local requirements.
69. All draft and final work plans and reports required for submittal under this Order shall be
stamped by a Registered Professional Engineer or Geologist. All draft and final work
plans, reports or other items required for submittal under this Order shall include the
following certification signed by a person who supervised or directed the preparation of
that report:

"Under penalty of law, I certify that to the best of my knowledge, after
appropriate inquiries of all relevant persons involved in the preparation of
the report, the information submitted is true, accurate, and complete. I am
aware that there are significant penalties for submitting false information,
including the possibility of fine and imprisonment for knowing violations."

XVII. ACCESS TO PROPERTY NOT OWNED BY THE UNITED STATES

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Appendix B - Consent Decree

70. If any property subject to or affected by the cleanup is owned, in whole or in part, by a
party or parties other than the United States, Respondents will obtain, or use its best
efforts to obtain, Site access agreements from the present owner(s) within thirty (30) days
after the Effective Date of this Order, or as otherwise specified in writing by the On­
Scene Coordinator. Such agreements shall provide access for the Forest Service, its
contractors and oversight officials, the State and its contractors, and Respondents or
Respondents' authorized representatives and contractors, and such agreements shall
specify that Respondents are not the Forest Service's representative with respect to
liability associated with Site activities. Respondents shall save and hold harmless the
United States and its officials, agents, employees, contractors, subcontractors, or
representatives for or from any and all claims or causes of action or other costs incurred
by the United States including but not limited to attorneys fees and other expenses of
litigation and settlement arising from or on account of acts or omissions of Respondents,
their officers, directors, employees, agents, contractors, subcontractors, and any persons
acting on their behalf or under their control, in carrying out activities pursuant to this
Order, including any claims arising from any designation of Respondents as the Forest
Service's authorized representatives under Section 104(e) ofCERCLA, 42 U.S.C. §
9604(e). Copies of such agreements shall be provided to the Forest Service prior to
Respondents' initiation offield activities. Respondents' best efforts shall include
providing reasonable compensation to any off-Site property owner. If access agreements
are not obtained within the time referenced above, Respondents shall immediately notify
the Forest Service of its failure to obtain access. Respondents shall describe in writing
their effort(s) to obtain access. The Forest Service may then assist Respondents in

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Appendix B - Consent Decree

gaining access, to the extent necessary to effectuate the removal actions described herein,
using such means as the Forest Service deems appropriate. The Forest Service reserves
the right to seek reimbursement from Respondents for all costs and attorney's fees
incurred by the United States in obtaining access for Respondents.

XVIII. RECORD PRESERVATION, RETENTION, AND AVAILABILITY
71. Respondents shall provide to the Forest Service upon request, copies of all documents
and information within their possession and/or control or that of their contractors or
agents relating to activities at the Site or to the implementation of this Order, including
but not limited to sampling, analysis, chain of custody records, manifests, trucking logs,
receipts, reports, sample traffic routing, correspondence, or other documents or
information related to the Work. Respondents shall also make available to the Forest
Service for purposes of investigation, information gathering, or testimony, its employees,
agents, or representatives with knowledge of relevant facts concerning the performance
of the Work.
72. Until ten (to) years after the Forest Service provides written notice to Respondents that
the Work has been completed, Respondents shall preserve and retain all records and
documents in its possession or control, including the documents in the possession or
control of its contractors and agents, on and after the effective date ofthis Order that
relate in any manner to the Site. At the conclusion ofthis document retention period,
Respondents shall notify the United States at least ninety (90) calendar days prior to the
destruction of any such records or documents, and upon request by the Forest Service,
Respondents shall deliver any such records or documents to the Forest Service.

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Appendix B - Consent Decree

73. Within thirty (30) days after the Effective Date of this Order, Respondents shall submit a
written certification to the Forest Service's On-Scene Coordinator that they have not
altered, mutilated, discarded, destroyed or otherwise disposed of any records, documents
or other information relating to their potential liability with regard to the Site since
notification of potential liability by the United States or the State or the filing of suit
against it regarding the Site. Respondents shall not dispose of any such documents
without prior approval by the Forest Service. Respondents shall, upon the Forest
Service's request and at no cost to the Forest Service, deliver the documents or copies of
the documents to the Forest Service.
74. Respondents may assert a business confidentiality claim pursuant to the procedures set
forth in 40 C.F.R. § 2.203(b) with respect to part or all of any information submitted to
the Forest Service pursuant to this Order, provided such claim is allowed by Section
104(e)(7) ofCERCLA, 42 U.S.c. § 9604(e)(7). Analytical and other data specified in
Section 104(e)(7)(F) ofCERCLA shall not be claimed as confidential by Respondents.
The Forest Service shall only disclose information covered by a business confidentiality
claim to the extent permitted by, and by means of the procedures set forth at 7 C.F.R. §
1.12. Ifno such claim accompanies the information when it is received by the Forest
Service, it may make it available to the public without further notice to Respondents.
75. Respondents shall maintain a running log of privileged documents on a document-by­
document basis, containing the date, author(s), addressee(s), subject, the privilege or
grounds claimed (e.g, attorney work product, attorney-client), and the factual basis for
assertion of the privilege. Respondents shall keep the "privilege log" on file and
available for inspection. The Forest Service may at any time challenge claims of

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Appendix B - Consent Decree

privilege through negotiations or otherwise as provided by law or the Federal Rules of
Civil Procedure.

XIX.

DELAY IN PERFORMANCE

76. Any delay in performance of this Order that, in the Forest Service's judgment, is not
properly justified by Respondents under the terms of this Paragraph shall be considered a
violation of this Order. Any delay in performance of this Order shall not affect
Respondents' obligations to fully perform all obligations under the terms and conditions
of this Order.
77. Respondents shall notify the Forest Service of any delay or anticipated delay in
performing any requirement of this Order. Such notification shall be made by telephone
to the Forest Service's On-Scene Coordinator within forty eight (48) hours after
Respondents first knew or should have known that a delay might occur. Respondents
shall adopt all reasonable measures to avoid or minimize any such delay. Within five (5)
business days after notifying the Forest Service by telephone, Respondents shall provide
written notification fully describing the nature of the delay, any justification for delay,
any reason why Respondents should not be held strictly accountable for failing to comply
with any relevant requirements of this Order, the measures planned and taken to
minimize the delay, and a schedule for implementing the measures that will be taken to
mitigate the effect of the delay. Increased costs or expenses associated with
implementation of the activities called for in this Order is not ajustification for any delay
in performance.

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Appendix B - Consent Decree

xx. INSURANCE

78. At least seven (7) days prior to commencing any work at the Site pursuant to this Order,
Respondents shall secure, and shall maintain for the duration ofthis Order,
comprehensive general liability insurance and automobile insurance with limits of one
million dollars, combined single limit. Within the same time period, Respondents shall
provide the Forest Service with certificates of such insurance and a copy of each
insurance policy. lfthe Respondents demonstrate by evidence satisfactory to the Forest
Service that Respondents contractors and subcontractors have adequate insurance
coverage or have indemnification for liabilities for injuries or damages to persons or
property which may result from the activities to be conducted by or on behalf of
Respondents pursuant to this Order, covering the same risks but in a lesser amount, then
the Respondents need provide only that portion of the insurance described above which is
not maintained by the contractor or subcontractor.

XXI. UNITED STATES NOT LIABLE
79. The United States, by issuance of this Order, assumes no liability for any injuries or
damages to persons or property resulting from acts or omissions by Respondents, or their
directors, officers, employees, agents, representatives, successors, assigns, contractors, or
consultants in carrying out any action or activity pursuant to this Order. Neither the
Forest Service nor the United States may be deemed to be a party to any contract entered
into by Respondents or their directors, officers, employees, agents, successors, assigns,
contractors, or consultants in carrying out any action or activity pursuant to this Order.

32

Appendix B - Consent Decree

XXII. ENFORCEMENT AND RESERVATIONS

80. The Forest Service reserves the right to bring an action against Respondents under
Section 107 of CERCLA, 42 U.S.c. § 9607, for recovery of any response costs incurred
by the United States related to this Order or the Site and not reimbursed by Respondents.
This reservation shall include, but not be limited to, past costs, direct costs, indirect costs,
the costs of oversight, the costs of compiling the cost documentation to support oversight
cost demand, as well as accrued interest as provided in Section 107(a) ofCERCLA.
81. Notwithstanding any other provision of this Order, at any time during the response
action, the Forest Service may perfonn its own studies, complete the response action (or
any portion of the response action) as provided in CERCLA and the NCP, and seek
reimbursement from Respondents for its costs, or seek any other appropriate relief.
82. Nothing in this Order shall preclude the Forest Service from taking any additional
enforcement actions, including modification of this Order or issuance of additional
Orders, and/or additional removal or remedial actions as the Forest Service may deem
necessary, or from requiring Respondents in the future to perfonn additional activities
pursuant to Section 106(a) ofCERCLA, 42 U.S.c. § 9606(a), or any other applicable
law. Respondents shall be liable under Section 107(a) ofCERCLA, 42 U.S.c. § 9607(a),
for the costs of any such additional actions.
83. Notwithstanding any provision of this Order, the Forest Service hereby retains all of its
infonnation gathering, inspection and enforcement authorities and rights under CERCLA,
and any other applicable statutes or regulations.
84. Violation of any provision of this Order may subject Respondents to civil penalties of not
more than thirty-seven thousand five hundred dollars ($37,500) per violation per day, as

33

Appendix B - Consent Decree

provided in Section 106(b)(l) ofCERCLA, 42 U.S.C. § 9606(b)(1). Should Respondents
violate this Order or any portion hereof, the Forest Service may carry out the required
actions unilaterally, pursuant to Section 104 ofCERCLA, 42 U.S.C. § 9604, and/or may
seek judicial enforcement of this Order pursuant to Section 106 ofCERCLA, 42 U.S.C. §
9606.
85. Nothing in this Order shall constitute or be construed as a release from any claim, cause
of action or demand in law or equity against any person for any liability it may have
arising out of or relating in any way to the Site.

XXIII. ADMINISTRATIVE RECORD
86. The Administrative Record supporting this Removal Action is available for review at the
USDA Forest Service Southwestern Regional Office, located at:
333 Broadway SE
Albuquerque, NM 87102

XXIV. SEVERABILITY
87. If a court issues an order that invalidates any provision ofthis Order or finds that
Respondents have sufficient cause not to comply with one or more provisions of this
Order, Respondents shall remain bound to comply with all provisions ofthis Order not
invalidated or determined to be subject to a sufficient cause defense by the court's order.

XXV. OPPORTUNITY TO CONFER
88. Within seven (7) working days after the date that Respondents are served, by facsimile,
with a copy of this Order, Respondents may request, in writing, a conference with the

34

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USDA. Any such conference shall be held within ten (10) working days after the date of
such request, unless extended by agreement of the parties. At any conference held
pursuant to the request, Respondents may appear in person or be represented by an
attorney or other representative.
89. If a conference is held, Respondents may present any information, arguments or
comments regarding this Order. Regardless of whether a conference is held, Respondents
may submit any information, arguments or comments in writing to the Forest Service
within fourteen (14) days following the conference, or within twenty-one (21) days
following the effective date of this Order if no conference is requested. This conference
is not an evidentiary hearing, does not constitute a proceeding to challenge this Order,
and does not give Respondents a right to seek review of this Order. Requests for a
conference, or any written submittal under this Paragraph, shall be directed to:
Michael R. Hope
Senior Counsel

USDA Office of the General Counsel

740 Simms St., Suite 309

Golden, CO 80401

303-275-5545

fax-303-275-5557

email-michael.hope@.usda.gov

XXVI. EFFECTIVE DATE
90. This Order shall be effective ten (10) working days after the date that Respondents are
served, by facsimile, with a copy of this Order, unless a conference is requested as
provided herein. If a conference is requested, this Order shall be effective on the second
(2nd ) working day following the day of the conference, unless modified, in writing, by the
Forest Service.
35

Appendix B - Consent Decree

IT IS SO ORDERED

By:

L;k;VV~~

Date:

6· ::zo .;;zoo

~HOMAS L. TIDWELL
Chief
Forest Service

By

~Lj;(U(}~

Date: {; -41-1 I

Lisa M. Wilusz
Director
USDA Office of Procurement
and Property Management

Date:

36

Appendix B - Consent Decree

APPENDIX A
STATEMENT OF WORK

REMOVAL ACTION

SAN MATEO URANIUM MINE

1.0 PURPOSE

The purpose of this Statement of Work (SOW) is to describe the Work activities associated with the
Removal Action at the San Mateo Uranium Mine (Site). These activities consist of the design,
construction, monitoring, and operation and maintenance of the Removal Action. The Removal Action
shall be consistent with the United States Department of Agriculture, Forest Service (Forest Service)
Action Memorandum and the Unilateral Administrative Order for Removal Action (UAO or Order).
The Respondents shall comply with applicable regulatory requirements pertaining to the Removal
Action.
The mine features at the Site are Main Waste Rock Pile, North Pad, Sheet Wash Area, South Sand Pile,
and several settling ponds. The primary source of contamination consists of the exposed nature of
180,000 cubic yards of Main Waste Rock Pile, North Pad material, South Sand Pile, and Sheet Wash
Area containing radium-226, radium-228, thorium-228, thorium-230, thorium-232, uranium-234,
uranium-235, and uranium-238, the contaminants of concern. Wind and water erosion of these
uncovered and uncontrolled waste materials has lead to migration of contaminants into air, soil, and
sediment. It has resulted in potential inhalation, ingestion, and dermal contact exposure pathways.
Some of the waste materials have migrated onto adjacent private lands.
The Forest Service shall provide oversight of the Respondents activities throughout the Removal
Action. The Respondents shall support the Forest Service initiatives and conduct activities related to
the implementation of the Removal Action.

2.0

REMOVAL ACTION PERFORMANCE STANDARDS AND SPECIFICATIONS

Unless otherwise specified, the Respondents shall conduct all Work described in this SOW. Work shall
be completed upon written acceptance from the Forest Service. The Respondents shall prepare the
performance standards and specifications of the Removal Action as described herein. Performance
standards and specifications shall include cleanup standards, standards of control, quality criteria, and
other requirements, criteria or limitations as established in the Action Memorandum, this SOW and the
VAO. A vicinity map is included as Figure 1. A site boundary map is included as Figure 2. A mine
features map is included as Figure 3.
2.1 Cleanup Performance Standard
The cleanup performance standards shall be consistent with Multi-Agency Radiation Survey and Site
investigation Manual (MARSSIM) and the Uranium Mill Tailings Radiation Control Act regulations at
40 CFRI92.12. The concentration ofradium-226 in land averaged over the first 15 cm of soil below

Appendix B - Consent Decree

ground surface shall not exceed the background level by more than 5 picocuries per gram of radium­
226.

2.2 Evapotranspiration Cover Performance Standards
Longevity of the Cover-The cover shall have a minimum expected life of 200 years.
Water Infiltration-The cover must protect mine wastes and reduce leachate development by minimizing
infiltration into the mine waste. Infiltration from the cover into the mine waste shall not exceed
3mm/year for the wettest year on record.
Erosion- The cover shall have a gravel admixture designed to minimize erosion. As a minimum, the
cover system shall be designed so that the calculated sheet erosion rate does not exceed 2
tons/acre/year. Erosion effects due to both wind and water shall be taken into account. The top
gravel/soil admixture depth, soil to gravel ratio, and size of gravel will be determined in the design
process.
Revegetation- Revegetation shall emulate the structure, function, diversity and dynamics of native plant
communities. Ground cover shall be a minimum of 80% of the natural analog at the end of the first five
year maintenance period.

2.3 Fence Performance Standards
The fence shall be a standard commercial grade chain link mesh designed to exclude large animals such
as cattle, deer, and elk out of the repository area. The fence shall be 8 feet in height and shall totally
enclose the area of the repository. The fence shall have a minimum of one commercial grade chain link
gate designed to allow the entry of vehicles and equipment.

3.0

TASK DESCRIPTION

The Removal Action shall consist of six (6) principal tasks described below. Tasks and deliverables
shall be completed and submitted in accordance with the schedules established in the UAO and in the
Work Plan approved by Forest Service. The Forest Service shall review all submittals and provide
comments/input within fourteen (14) days of receipt. The current/revised date shall be displayed on the
coversheet of submittals and/or re-submittals. All work related to this SOW shall be performed by the
Respondents consistent with the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (CERCLA) as amended, 42 USC 9601, and other applicable federal and state rules and
regulations.
Task Summary
3.1 Task I: Work Plan
3.1.1 Site Access
3.1.2 Pre-Design Studies Plan
3.2 Task II: Pre Design Studies
3.3 Task III: Removal Design
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3.3.1 General Requirements for Plans and Specifications
3.3.2 Design Phases
3.3.3 Cost Estimate for Removal Action
3.3.4 Removal Action Construction Implementation Plan
3.3.5 Community Involvement Support
3.4 Task IV: Removal Action Construction
3.4.1 Preconstruction Inspection and Conference
3.4.2 Design Changes during Construction
3.4.3 Removal Action Construction Completion and Acceptance
3.5 Task V: Operation and Maintenance
3.5.1 O&M Plan
3.5.2 Acceptance Inspection
3.6 Task VI: Reporting Requirements
3.6.1 Monthly Progress Reports
3.6.2 Annual O&M Progress Reports
3.6.3 Summary of Reports and Submittals

3.1 TASK I: WORK PLAN
The Work Plan shall consist of the overall strategy for performing the design, construction, operation,
maintenance and monitoring for the Removal Action. The Work Plan shall outline the specific tasks
required to implement the Removal Action, including a description of the technical approach, personnel
requirements, plans, specifications, permit requirements, submittals, and deliverables.
The personnel requirements include the responsibilities and authority of all organizations and key
personnel involved with the development and implementation of the Removal Action. In addition, the
personnel requirements shall include the qualifications of key personnel directing the Removal Action
tasks, including contractor personnel if known.
The Work Plan shall include a schedule, in real time, for conducting all activities associated with the
Removal Action. All activities shall be consistent with the overall goal of submitting to the Forest
Service the Construction Completion Report no later than April 1, 2013.
The Work Plan shall include a rationale and methodology for determining the suitability of cover
material. Suitable cover material shall, at minimum, meet Action Memorandum cleanup standards and
have appropriate geotechnical characteristics to make an evapotranspiration cover that will store water
and provide a suitable growing medium for plants. The Work Plan shall provide the evaluation of off­
site sources in the likely event that the on-site material is not suitable or is of insufficient volume.
3.1.1 Site Access

The Site is situated on National Forest System Lands; however, the Site is accessed via private land.
Agreements for access through private land shall be obtained from the private land owners.
Temporary site access agreements may be obtained to allow access for pre-design studies; however
long-term site agreements shall be obtained prior to Removal Action Construction. Long-term site

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access agreements shall extend for the duration of all removal activities and Forest Service oversight
activities. The Work Plan shall describe the activities to satisfy these requirements.
3.1.2 Pre-Design Studies Plan

The Pre-Design Studies Plan is a component of the Work Plan. The Pre-Design Studies Plan shall
outline the tasks associated with the pre-design studies. Information developed during pre-design
studies is required to design and implement the Removal Action. At a minimum, the Pre-Design
Studies Plan shall address the elements listed below in the pre-design studies.
1) Additional radiological surveys in the sheet wash area and investigate access road to delineate
the area of contaminated soil to be removed;
2) Accurate determination of area background concentrations;
3) Additional radiological surveys and soil sample analysis for Ra-226 to correlate concentrations
in soil to gamma survey results;
4) Evaluate candidate borrow sources for cover material;
5) Evaluate local vegetation analog on undisturbed ground near the site for purposes of
establishing long term and low maintenance plants on the cover;
6) Identify leftover mining debris such as pipe and building remains that need to be disposed of to
ensure site reclamation is successful; and
7) Identify archeological sites in areas where sampling or remediation work will be conducted.
The Pre-Design Studies Plan will identify and describe, in detail, activities to conduct these elements.
The Pre-Design Studies Plan shall include sufficient sampling, testing, and analyses to develop
quantitative performance, cost and design data for the Removal Action.
The Pre-Design Studies Plan shall be approved by the Forest Service prior to initiation of associated
field activities or studies.
The Pre-Design Studies Plan shall include a Site Specific Sampling and Analysis Plan (SAP) and a
Design Health and Safety Plan. Section 4.0 of this SOW describes key elements of these two plans.
Prior to development of the Pre-Design Studies Plan, the On-Scene Coordinator and the Project
Manager will meet to discuss scope, objectives, quality assurance and quality control issues, resources,
reporting, communication channels, schedule, and personnel roles and responsibilities involved in the
Removal Action.
The pre-design studies will be conducted as described under Task II.

3.2 TASK II: PRE-DESIGN STUDIES

All key elements associated with the pre-design studies shall be coordinated with the On-Scene
Coordinator. The objective ofthe pre-design studies is two-fold: (l) to define and delineate the extent
of contamination at the site; and (2) evaluate and confirm the specifications associated with the
proposed cover soils and revegetation.
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Appendix B - Consent Decree

The following further describes the key elements of the pre-design studies:
1) Additional radiological surveys shall include sampling and analysis in the (a) sheet wash area;
and (b) access road areas. The objective of these surveys is to delineate the extent of the
contamination in these two areas. During past mining activities, ore may have spilled on the
ground from haul vehicles; therefore, access road areas may have some degree of
contamination. These surveys shall delineate all areas within the site boundary that contain
radionuclides above the cleanup performance standards.
2) Investigate and designate borrow sources for cover material including particle size analysis,
saturated hydraulic conductivity, soil water characteristic curve, and shrink-swell, wet-dry
characteristics. Samples shall be taken over the full range of depth of the borrow source
proposed to be utilized as cover material. Document volume calculations and estimates,
uniformity of soil, and evaluate whether blending of soils might be necessary.
3) Evaluate local vegetation analog on undisturbed ground near the site displaying similar soil
properties aspect, and elevation. Document data regarding plant species, coverage, leaf area
index, and root depth and density.
4) Identify and document past mining debris such as pipe and building remains that need to be
disposed of and any other remediation to restore the mine site to pre-mining conditions.
Furnish all services, including required field work, materials, supplies, labor, equipment, supervision,
and data interpretation. Sampling, testing, and analyses shall be performed to provide the technical data
to prepare and support the removal design plans and specifications for the Removal Action.
Activities in the Pre-Design Studies Plan shall be completed. Thereafter, a Draft Pre-Design Studies
Report shall be prepared and submitted for review and comment to the Forest Service. The Draft Pre­
Design Studies Report shall be submitted prior to or concurrently with submittal of the Preliminary
Design submittal in accordance with the schedule in the approved Work Plan.
The Draft Pre-Design Studies Report shall present investigation/testing data and results, the proposed
approach for determining compliance with the cleanup performance standard consistent with Multi­
Agency Radiation Survey and Site investigation Manual (MARSSIM), and other analysis, including a
cost analysis, when appropriate.
The Final Pre-Design Studies Report shall be submitted to the Forest Service in accordance with
schedule in the approved Work Plan.

3.3 TASK III: REMOVAL DESIGN
The Removal Design shall be prepared and submitted to the Forest Service in accordance with the
schedule set forth in the approved Work Plan. The Removal Design shall include the construction
plans, specifications, drawings, and supporting plans to implement the Removal Action at the Site as
defined in the Sections 1.0 and 2.0 of this SOW, the Action Memorandum, and the UAO.

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3.3.1 General Requirements for Construction Plans and Specifications

The construction plans and specifications shall comply with the standards and requirements outlined in
the following sections. All components of the Removal Design shall be clear, comprehensive and
organized. Supporting data and documentation shall define the functional aspects of the Removal
Action. The design documents shall demonstrate that the Removal Action is capable of meeting
Removal Action Objectives outlined in the Action Memorandum, including any performance standards.
The construction plans and specifications shall include the following:
1) Discussion of the design strategy and design basis including:
a. Compliance with requirements of the Action Memorandum, the UAO and all
applicable regulatory requirements; and
b. Minimization of environmental and public health impacts;

2) Discussion of the technical factors of importance including:

a. Use of currently accepted environmental control measures and technologies;
b. The constructability of the design; and
c. Use of currently accepted construction practices and techniques
3) Description of the assumptions made and detailed justification for those assumptions.
4) Discussion of possible sources of error and possible operation and maintenance problems.
5) Detailed drawings of the proposed design.
6) Detailed specifications describing all aspects of construction.
7) Appendices including results of laboratory tests, field tests and any additional studies.
3.3.2 Design Phases

The Removal Design shall be developed in phases and submitted to the Forest Service for review after
each phase. Periodic meetings with the Forest Service after each phase are required.
Submittals shall be made in accordance with the schedule in the approved Work Plan.
3.3.2.1 Preliminary Design

A Preliminary Design shall reflect the design completion at approximately 30% completion and
submitted to the Forest Service for review and comment. This is the first phase of the Design Phases.
During this phase of the design process, the Preliminary Design shall identify and note existing
conditions at the site that may influence the design and implementation of the Removal Action. The
Preliminary Design shall address the basic technical requirements of the Removal Action. The
Preliminary Design submittal shall include the following elements, at a minimum:
1) Preliminary plans, drawings and sketches, including design calculations;
2) Results of additional field sampling including background and correlation sampling and
identification of areas of sheet wash that need removal and consolidation;
3) Identification of sites of potential archeological interest within anticipated work areas;
4) Design assumptions and parameters;
5) Proposed cleanup verification methods, including compliance with applicable laws and
regulations;

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6) Outline of design specifications;
7) Proposed locations of borrow pits and evaluation of suitability of borrow soils for cover
material and revegetation;
8) Proposed locations of construction activity and stockpile locations;
9) Expected long-term operation and monitoring requirements;
10) Real estate and easement requirements; and
11) Preliminary construction schedule including contracting strategy.
The Preliminary Design shall include the supporting data and documentation to define the functional
aspects of the Removal Action. In addition, the Preliminary Design shan include engineering design
calculations to support the elements of the design.
Any revisions or amendments to the Preliminary Design as required by the Forest Service shall be
incorporated into the subsequent design phase.
3.3.2.2 Pre-Final Design
A Pre-Final Design shall reflect the design completion at approximately 90% completion and submitted
to the Forest Service for review and comment in accordance with the schedule in the approved Work
Plan. The Pre-Final Design shall incorporate modifications submitted by the Forest Service during
review of Pre Design Studies Report, technical memoranda, and the Preliminary Design. The Pre-final
Design submittal shall consist of the following components, at a minimum:
1)
2)
3)
4)
5)
6)
7)

90 % Design Plans and Specifications;

Construction Quality Assurance Plan;

Operation and Maintenance Plan;

Removal Action Construction Implementation Plan;

Cost Estimate for the Removal Action;

Drawings; and

Construction Health and Safety Plan

Correlation between drawings and specifications is a basic requirement of construction plans and
specifications submittal package. Therefore, prior to submitting the Pre-Final Design, perform the
following tasks:
1) Coordinate and cross-check the specifications and drawings; and
2) Complete the proofing of the edited specifications and required cross-checking of all
drawings and specifications.
The Forest Service shall submit written comments/revisions to the Pre-Final Design. These comments
shall be provided as a narrative report andlor markings on design plan sheets (marked-up 90% prints).
These revisions shaH be incorporated into the Final Design.
3.3.2.3 Final Design
The Final Design is the final phase of the design process. The Final Design is a package which
includes the plans, specifications, cost estimate, and drawings. The Final Design shall be prepared in
7

Appendix B - Consent Decree

accordance with the approved schedule in the Work Plan and submitted to the Forest Service for
approval. The Final Design shall incorporate all comments and revisions provided by the Forest
Service. If required, the On-Scene Coordinator may request additional revisions and are-submittal
may be required.
Upon request from the On-Scene Coordinator, submit any marked-up prints or drawings, which the
Forest Service may have provided in the form of comments/revisions on previous design submittals.
3.3.3 Cost Estimate for the Removal Action
A Cost Estimate for the Removal Action shall be prepared during the design phase. The cost estimate
shall include both capital and operation and maintenance costs for the Removal Action. The cost
estimate shall include current prices for labor, material, transportation, equipment and other services.
A Final Cost Estimate shall reflect the elements of the Final Design. It shall be submitted in the Final
Design package.
3.3.4 Removal Action Construction Implementation Plan
A Removal Action Construction Implementation Plan is a plan that outlines the (a) schedule for the
specific components to coordinate and implement the design of the Removal Action and (b) describes
the overall strategy and activities to construct the specific design components of the Removal Action. A
Construction Implementation Plan shall be prepared in coordination with the On-Scene Coordinator
and the schedule in the Work Plan. Essentially, the Construction Implementation Plan schedule is
embedded in the Work Plan schedule. It shall include a schedule for the construction that identifies
timing for initiation and completion of all critical path tasks in the design. The Respondents shall
specifically identify dates for completion of the construction and major interim milestones in
conformance with the overall goal of submitting the Construction Completion Report not later than
April 1, 2013. The Construction Implementation Plan is a management tool which should address the
following topics:
1) Activities to implement the construction of each ofthe components of the design;
2) How these activities will be coordinated to facilitate construction! implementation in
accordance with the approved schedule in the Work Plan;
3) Potential major scheduling problems or delays, which may impact overall schedule;
4) Establish lines of communication for discussing and resolving problems, if they arise;
5) Common and/or anticipated remedies to overcome potential problems and delays.
The draft Construction Implementation Plan shall be submitted with the Pre final Design for review and
comment by the Forest Service. The final Construction Implementation Plan shall be submitted with
the Final Design for review and approvaL
3.3.5 Community Involvement Support
Community Involvement Support includes preparation of a one-page, two sided Fact Sheet. The Fact
Sheet shall be in color, include photos, and key information about the Removal Action. The intent of
this Fact Sheet is for distribution by the Forest Service at either a public meeting or in a mailing.

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3.4 TASK IV: REMOVAL ACTION CONSTRUCTION

The Removal Action Construction consists of the activities associated with the implementation of the
Final Design. The Removal Action shall be implemented in accordance with the Final Design,
Construction Quality Assurance Plan, Construction Health and Safety Plan, and Construction
Implementation Plan. Implementation shall include the activities described in the following sections.
3.4.1 Preconstruction Inspection and Conference

A preconstruct ion inspection and conference shall be scheduled with the Forest Service. The
preconstruction inspection and conference shall accomplish the following:
1)
2)
3)
4)

Review methods for documenting and reporting inspection data;
Review methods for distributing and storing documents and reports;
Review work area security and safety protocol;
Discuss any appropriate modifications to the Construction Quality Assurance Plan to ensure
that site specific considerations are addressed;
5) Introduce key construction contractor, engineering and project management personnel and
review roles during construction activities;
6) Conduct a site walk-around to verify that the design criteria, plans, and specifications are
understood and to review material and equipment storage locations; and
7) Discuss the sensitivity of adjacent archeological sites and the importance of keeping material
and equipment confined to only pre approved locations.

The preconstruction inspection and conference shall be held fourteen days (14) prior to start of
construction. The preconstruction inspection and conference shall be documented by a designated
person and minutes shall be transmitted by the Respondents to all parties in attendance.
3.4.2 Design Changes during Construction

During construction, unforeseen site conditions, changes in estimated quantities of required
construction materials and other design changes or modifications to the Final Design associated with
the project shall be presented to the Forest Service On-Scene Coordinator in a timely manner. Any
Final Design changes and/or modifications shall be pre-approved, in writing, by the Forest Service On­
Scene Coordinator prior to implementation. Some examples of design changes and/or modifications
include:
1) Those that involve the deletion or addition of a major component of the approved Removal
Action (e.g. deleting any designed layer of a multi-layer cap);
2) Those that result in a less effective treatment for wastes associated with the site;
3) Any changes that may result in an increase of the exposure to chemicals of concern and/or
risk to human health or the environment as compared to the goals for the completed
Removal Action as stated in the VAO and this SOW;
4) Those that result in a significant delay in the completion of the Removal Action;
5) Any other changes/modifications that alter or are outside of the scope or intent of the

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Appendix B - Consent Decree

approved removal design; and
6) Forest Service shall be notified of other changes made during construction through daily
inspection reports and monthly progress reports.
3.4.3 Removal Action Construction Completion and Acceptance
Within seven (7) days prior to completion of construction, the following activities and reporting shall
be scheduled with the Forest Service On-Scene Coordinator to ensure timely completion of the
Removal Action Construction tasks, Forest Service approval, closeout and transition to the operation
and maintenance/monitoring phase of the Removal Action.
3.4.3.1 Pre-Final Construction Conference
A pre-final construction conference is a meeting at the Site with the Forest Service On-Scene
Coordinator to discuss procedures and requirements for Removal Action construction completion and
final inspection. A pre-final construction conference shall be scheduled, in writing, with the Forest
Service On-Scene Coordinator. The meeting shall include representative from both parties including
the Project Manager, the Forest Service On-Scene Coordinator, construction contractors, and design
engineer, if requested.
A list of suggested topics to be included at the conference, but is not limited to the following:
1)
2)
3)
4)

Final Operation and Maintenance (O&M) Plan submission;
Cleanup responsibilities;
Demobilization activities; and
Pre-final inspection schedule;

Details of the Pre-Final Construction Conference shall be documented by a designated person and
minutes shall be transmitted by the Respondents to all parties in attendance.
3.4.3.2 Pre-Final Inspection
A Pre-Final Inspection is a field meeting at the Site with the Forest Service On-Scene Coordinator to
review the implementation of the Final Design. The Pre-Final Inspection will follow the pre-final
construction conference. The Forest Service On-Scene Coordinator shall schedule and lead the pre­
final inspection. The field meeting shall include representative from both parties including the Project
Manager, the Forest Service On-Scene Coordinator, construction contractors, design engineer (if
requested), and any other Forest Service staff.
The Pre-Final Inspection will consist of a walk-through inspection of the entire site. The completed
site work will be inspected to determine whether the project is complete and consistent with the
contract documents and the approved Work Plan. Any outstanding deficient or incomplete construction
items shall be identified and noted during the inspection.
A Pre-Final Inspection Report is a report that describes and outlines outcomes of the pre-final
inspection. These outcomes shall include outstanding construction items, actions required to resolve
those items, completion date for those items and a date for the final inspection. The Pre-Final

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Appendix B - Consent Decree

Inspection Report shall be submitted to Forest Service within seven (7) days following the pre-final
inspection. A copy of this report shall be provided to all parties in attendance ofthe pre-final
inspection. The Forest Service will review this report and provide any deficiencies and/or
discrepancies; a re-submittal of this report shall be required within seven (7) days of notification of any
deficiencies and/or discrepancies.
3.4.3.3 Final Inspection
A Final Inspection is a field inspection of the Removal Action Construction. The field inspection shall
consist of a walk-through field inspection primarily focusing on outcomes of the Pre-Final Inspection.
These outcomes include outstanding construction items, deficiencies, and/or non-compliance with
design plans and specifications. The Pre-Final Inspection Report shall be used as a checklist. If any
construction items remain deficient or incomplete after the Final Inspection, the inspection shall be
considered a pre-final inspection requiring another pre-final inspection report and final inspection.
Written notification to the Forest Service is required within seven (7) days upon completion of any
outstanding construction items.
Demobilization of equipment shall be initiated; however, appropriate equipment shall be available to
remediate any outstanding construction items identified during the pre-final or final inspections. All
equipment scheduled for demobilization shall have been cleaned, decontaminated and staged for
demobilization prior to the final inspection.
The Forest Service On-Scene Coordinator shall schedule and lead the Final Inspection. The field
meeting shall include representative from both parties including the Project Manager, the Forest
Service On-Scene Coordinator, construction contractors, design engineer (if requested), and any other
Forest Service staff. A Final Inspection report shall be completed to document outcomes of the final
inspection and submitted to the Forest Service within seven (7) days following the final inspection.
3.4.3.4 Construction Completion Report
The Construction Completion Report is a report which includes the following elements, at a minimum:
1) A brief description of the outstanding construction items identified in the pre-final
inspection and final inspection reports; include certification that these items were in
compliance and in accordance with Forest Service direction and approval;
2) A synopsis of the work defined in the approved Work Plan and the Final Design and
certification that this work was performed in accordance with Forest Service direction and
approval;
3) A description of any changes and/or modifications to the work defined in the approved
Work Plan and Final Design, including as-built drawings of the constructed Removal Action
structures, and describe why the changes and/or modifications were required or beneficial
for the success of the project;
4) Recommendations for the overall project.
The Construction Completion Report shall be submitted to the Forest Service within sixty (60) days
following the Final Inspection Report and receipt of validated, final laboratory analytical data
packages.
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Appendix B - Consent Decree

The Construction Completion Report shall be reviewed by the Forest Service. The Forest Service shall
provide comments and/or deficiencies for a re-submittal of a revised Construction Completion Report.
The revised report shall be submitted to the Forest Service within thirty (30) days of receipt of those
comments and/or deficiencies. The Forest Service shall review the revised report and inform the
Respondents, in writing, of approval or disapproval of the final Construction Completion Report.

3.5 TASK V: OPERATION AND MAINTENANCE

Following Forest Service approval ofthe Construction Completion Report, the Respondents shall
implement maintenance procedures as required by the approved Operation and Maintenance Plan for
the Removal Action. The Forest Service understands and expects weather conditions to affect the
establishment of the vegetation (plants) at the Site. Vegetation shall be in-place within a reasonable
amount of time.
3.5.1 O&M PLAN

The purpose of the Operation and Maintenance Plan (O&M Plan) is to cover long term operation and
maintenance of the Removal Action. The Operation and Maintenance (O&M) Plan shall describe the
O&M tasks and inspection activities. The plan, at a minimum, shall require annual inspections to be
composed of the elements listed below.
1) Evapotranspiration Cover Inspection
a. Check for erosion of cap and repair erosion and reseed
b. Check for areas of subsidence and fill to restore proper shape for drainage.
c. Verify adequate vegetation coverage and reseed areas where vegetation does
not meet plant coverage requirements
d. Check for holes caused by burrowing animals and fill in holes.

2) Mine Site Inspection

a. Inspect repository perimeter fence for damaged posts, broken wire, and gate
damage and perform repairs.
b. Inspect mine shafts and vents for subsidence or breakthrough and repair as
required.
c. Inspect drainage channels and remediated slopes for erosion and repair
erosion and reseed.

3) Typical O&M tasks and inspection activities

The O&M plan shall be submitted with the Pre-Final Design.
3.5.2 Acceptance Inspection

The acceptance inspection is a field inspection which will consist of a walk-through inspection of the
project site focusing on any problems noted in the annual O&M progress reports.
At the end of five (5) calendar years of operation and maintenance, if the Site meets all performance
standards including successful establishment of a minimum of 80% of the natural analog for re­
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Appendix B - Consent Decree

vegetation, the Respondents may request, in writing, acceptance of the Removal Action from the Forest
Service. Any defects in the design or construction of the Removal Action shall be identified and
corrected prior to requesting acceptance.
The Forest Service On-Scene Coordinator shall schedule and conduct the acceptance inspection with
assistance from the party having primary responsibility for operation and maintenance.
Final acceptance by the Forest Service shall not be made if any items remain deficient or do not meet
the performance standards. Any deficient items shall be identified and a new acceptance inspection will
be scheduled when the corrections have been made. Upon determination by the Forest Service that the
site meets all performance goals and is acceptable, written notice of Forest Service's acceptance of the
site shall be provided to the Respondents. The Forest Service will then take responsibility for
inspecting the site no less frequently than once every five years to ensure that the Removal Action
continues to be protective of human health and the environment.

3.6 TASK VI: REPORTING REQUIREMENTS
The Respondents shall prepare and submit work plans, design plans, specifications, and reports as set
forth in Tasks I through V ofthis SOW to document the design, construction, operation, maintenance,
and performance monitoring of the Removal Action.

3.6.1 Monthly Progress Reports
Monthly progress reports shall be prepared, as described below, to enable the Forest Service to track
project progress during the removal design and construction phases of the Removal Action.
The Respondents shall at a minimum provide the Forest Service with monthly progress reports during
the design and construction phases of the Removal Action including the information listed below.
When appropriate, the Work Plan shall specify progress reports to be submitted more frequently.
1) A description of the work performed during the reporting period and estimate of the
percentage of the Removal Action completed
2) Summaries of all findings and sampling during the reporting period
3) Summaries of all changes made in the Removal Action during the reporting period,
indicating consultation with Forest Service and approval by the Forest Service of those
changes, when necessary
4) Summaries of all contacts with representatives of the local community, public interest
groups or government agencies during the reporting period
5) Summaries of all problems or potential problems encountered during the reporting
period, including those which delay or threaten to delay completion of project
milestones with respect to the approved schedule in the Work Plan and Pre-Design
Studies Report
6) Summaries of actions taken and being taken to rectify problems
7) Summaries of actions taken to achieve and maintain cleanup standards and performance
standards
8) Changes in personnel during the reporting period
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Appendix B - Consent Decree

9) Projected work for the next reporting period
10) Copies of daily reports, inspection reports, sampling data, laboratory/ monitoring data,
etc.
3.6.2 Annual O&M Progress Reports

An Annual O&M Progress Report shall be prepared and submitted to the Forest Service annually
during the operation and maintenance phase of the Removal Action.
Annual O&M progress reports shall consist of the same information required for the monthly progress
reports as specified in Section 3.6.1 of this SOW. It shall also include an evaluation of the
effectiveness of meeting the cleanup standards, performance standards and other goals of the Removal
Action as defined in the VAO, this SOW, the Work Plan and the approved Final Design.
3.6.3 Summary of Reports and Submittals

The following is a summary, not all inclusive, of Reports and Submittals:
1. Work Plan
2. Design Health and Safety Plan
3. Pre-Design Studies Plan
4. Site Specific Sampling and Analysis Plan
5. Pre-Design Studies Report
6. Preliminary Design (30%)
7. Pre-Final Design (90%)
8. Construction Health and Safety Plan
9. Construction Quality Assurance Plan
10. Operation & Maintenance Plan
11. Final Design (100%), including Estimated Cost, Plans and Specifications
12. Construction Implementation Plan
13. Fact Sheet
14. Pre-Final Inspection Report
15. Final Inspection Report
16. Construction Completion Report
17. Monthly Progress Reports
18. Annual O&M Progress Reports
19. Meeting Notes/Minutes for Conferences, Inspections and Field Meetings
Draft and Final reports and submittals shall be prepared and submitted in accordance with this
SOW and the VAO.

4.0 DESCRIPTION OF PROJECT PLANS

Project Plans are plans included in this SOW to support activities associated with the Removal Action.
These plans shall be prepared and submitted as outlined in Section 3.0 of this SOW. These plans
include:
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Appendix B - Consent Decree

1)
2)
3)
4)

Site Specific Sampling and Analysis Plan (SAP),

Design Health and Safety Plan,

Construction Health and Safety Plan and

Construction Quality Assurance Plan

The following sections describe in detail the required contents of each of these Project Plans.

4.1 SITE SPECIFIC SAMPLING AND ANALYSIS PLAN (SAP)
A Site Specific Sampling and Analysis Plan (SAP) is a plan which includes all sampling and analysis
activities associated with the Removal Action. In addition, the SAP shall include sample analysis, data
handling, and quality assurance.
The SAP shall be submitted with the Pre-Design Studies Plan.
The SAP shall, at a minimum, include the following elements:
1. Data Collection Strategy - The strategy section of the SAP shall include but not be
limited to the following:

a. Description of the types and intended uses for the data, relevance to removal or
restoration goals, and the necessary level of precision, accuracy, and statistical validity
for these intended uses;
b. Description of methods and procedures to be used to assess the precision, accuracy
and completeness of the measurement data;
c. Description of the rationale used to assure that the data accurately and precisely
represent a characteristic of a population, variation of physical or chemical parameters
throughout the Site, a process condition or an environmental condition. Factors which
shall be considered and discussed include, but are not limited to:
i)
ii)
iii)
iv)
v)
vi)

Environmental conditions at the time of sampling;

Sampling design (including number, location and distribution);

Representativeness of selected media, exposure pathways, or receptors;

Representativeness of selected analytical parameters;

Representativeness oftesting procedures and conditions; and

Independence of background or baseline from site influences.

d. Description of the measures to be taken to assure that the following data sets can be
compared quantitatively or qualitatively to each other:

i) Removal Action data collected by the Respondents;
ii) Removal Action data generated by an outside laboratory or consultant employed
by the Respondent versus data collected by the Respondents;
iii) Data generated by separate consultants or laboratories over some time period not
necessarily related to the Removal Action effort; and
iv) Data generated by Forest Service or by an outside laboratory or consultant
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Appendix B - Consent Decree

employed by Forest Service.
2. Sample Analysis - The Sample Analysis section shall specify the following:
a. Chain-of-custody, including:
i) Standardized field tracking reporting forms to establish sample custody in the field
prior to and during shipment;
ii) Sample sealing, storing and shipping procedures to protect the integrity of the
sample; and,
iii) Pre-prepared sample labels containing all information necessary for effective
sample tracking.
b. Sample storage procedures and storage times;
c. Sample preparation methods;
d. Analytical procedures, including:
i)
ii)
iii)
iv)
v)

Scope and application of the procedure;

Sample matrix;

Potential interferences;

Precision and accuracy of the methodology;

Method detection limits;

e. Calibration procedures and frequency;
f. Data reduction, validation and reporting;
g. Internal quality control checks, laboratory performance and systems audits and
frequency, including:
i) Method blank(s);

ii) Laboratory control sample(s);

iii) Calibration check sample(s);

iv) Replicate sample(s);

v) Matrix-spiked sample(s);

vi) "Blind" quality control sample(s);

vii) Control charts;

viii) Surrogate samples;

ix) Zero and span gases; and

x) Reagent quality control checks.

h. Preventative maintenance procedures and schedules;
1. Corrective action (for laboratory problems); and
J. Turnaround time.
3. Data Record - The SAP shall also provide the format to be used to present the raw data
and the conclusions of the investigation, as described in a, b, and c below:
a. The data record shall include the following:
i)

Unique sample or field measurement code;
16

Appendix B - Consent Decree

ii)
iii)
iv)
v)
vi)

Sampling or field measurement location and sample or measurement type;
Sampling or field measurement raw data;
Laboratory analysis ID number;
Property or component measured; and
Result of analysis (e.g., concentration).

b. Tabular Displays - The following data shall be presented in tabular displays:
i)
ii)
iii)
iv)

Unsorted (raw) data;

Results for each medium, organism, or for each constituent measured;

Data reduction for statistical analysis;

Sorting of data by potential stratification factors (e.g., location, soil layer,

topography, vegetation form);
v)
Summary data (i.e., mean, standard deviation, minimax values, and sample
number); and
vi) Comparisons with background or reference data.
c. Graphical Displays - The following data shall be presented in graphical formats (e.g.,
bar graphs, line graphs, area or plan maps, isopleth plots, cross-sectional plots or
transects, three dimensional graphs, etc.):
d. Display sampling locations and sampling grid:
i)
ii)
iii)

Indicate boundaries of sampling area, and areas where more data are required;

Display levels of contamination at each sampling location,

Display geographical extent of contamination

All radiological surveys shall be performed in accordance with the Multi Agency Radiation and Site
Investigation Manual (MARSSIM). This includes the final status survey to demonstrate that cleanup
Removal Action goals were successfully achieved.

4.2 HEALTH AND SAFETY PLANS
Two Health and Safety Plans shall be prepared: (1) Design Health and Safety Plan and (2) Construction
Health and Safety Plan. These two Health and Safety Plans are designed to protect on-site personnel
and area residents from physical, chemical and all other hazards posed by the design, construction,
operation and maintenance activities of the Removal Action.
The Health and Safety Plans shall address the following elements:

1. Major elements of the Health and Safety Plans shall include:
a. Facility or site description including availability of resources such as roads, water supply,
electricity and telephone service;
b. Description of the known hazards and an evaluation of the risks associated with the
incident and with each activity conducted;
c. Listing of key personnel (including the site safety and health officer) and alternates
responsible for site safety, Removal operations, and for protection of public health;
d. Delineation of work area, including a map;
17

Appendix B - Consent Decree

e. Description of levels of protection to be worn by personnel in the work area;
f. Description of the medical monitoring program for on-site responders;
g. Description of standard operating procedures established to assure the proper use and
maintenance of personal protective equipment;
h. The establishment of procedures to control site access;
i. Description of decontamination procedures for personnel and equipment;
j. Establishment of site emergency procedures;
k. Availability of emergency medical care for injuries and toxicological problems;
1. Description of requirements for an environmental monitoring program. (This should
include a description of the frequency and type of air and personnel monitoring,
environmental sampling techniques and a description of the calibration and maintenance
of the instrumentation used.);
m. Specification of any routine and special training required for responders; and
n. Establishment of procedures for protecting workers from weather related problems.
The Health and Safety Plans shall be consistent with:
a. NIOSH Occupational Safety and Health Guidance Manual for Hazardous Waste Site
Activities (1985);
b. CERCLA Sections 104(f) and 111(c)(6);
c. EPA Order 1440.3 -- Respiratory Protection;
d. EPA Order 1440.2 -- Health and Safety Requirements for Employees Engaged in
Field Activities;
e. EP A Occupational Health and Safety Manual;
f. EP A Interim Standard Operating Safety Procedures and other EPA guidance as

developed by EPA;

g. OSHA regulations particularly in 29 CFR 1910 and 1926;
h. Applicable radiation safety standards (e.g. 10CFR 20.1101);
1. State and local regulations; and
J. Site or facility conditions.
As tasks are completed, the Health and Safety Plans shall be updated to reflect current site activities of
the Removal Action.
4.3 CONSTRUCTION QUALITY ASSURANCE PLAN
The Construction Quality Assurance Plan is a plan which consists of site specific procedures to ensure
that the completed Removal Action meets or exceeds all design criteria and specifications. A
Construction Quality Assurance Plan shall be prepared based on the plans and specifications and
performance standards for the Removal Action.
A Construction Quality Assurance Plan shall be submitted with the Pre-Final Design.
The Construction Quality Assurance Plan shall, at a minimum, include the items described in the
following sections.
4.3.1 Responsibility and Authority
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Appendix B - Consent Decree

The responsibility and authority of all organizations (Le. technical consultants, construction firms, etc.)
and roles and responsibilities of key positions shall be described in the Construction Quality Assurance
Plan. Key positions shall include a Registered Professional Engineer who will serve as the
Construction Quality Assurance officer.
4.3.2 Inspection Activities
The Construction Quality Assurance Officer shall conduct the inspection activities during the Removal
Action. The inspection activities shall be described in detail in the Construction Quality Assurance
Plan. Inspection activities shall include observations and tests that will be used to monitor the
construction of the Removal Action. The scope and frequency of each type of inspection shall also be
identified. Inspections shall verifY compliance with the design, applicable requirements of state and
federal law and performance standards. Inspections shall also ensure compliance with all health and
safety standards and procedures.
4.3.3 Sampling Requirements
The sampling requirements include activities to ensure that the design specifications and performance
standards are achieved. These activities shall also include the elements of the SAP. The description of
these activities shall include sample sizes, sample locations, frequency of sampling, testing to be
performed, acceptance and rejection criteria, and plans for correcting problems as addressed in the
design specifications.

19

Appendix B - Consent Decree

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Appendix B - Consent Decree

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Appendix B - Consent Decree