Agenda Item: 8h_attach1
Meeting Date: September 9, 2025

UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION 10

____________________________________
)
)
)
East Waterway Operable Unit of
)
the Harbor Island Superfund Site
)
)
Port of Seattle, City of Seattle,
)
and King County,
)
)
Respondents
)
)
Proceeding Under Sections 104, 107, and )
122 of the Comprehensive, Environmental )
Response, Compensation, and Liability Act, )
42 U.S.C. §§ 9604, 9607 and 9622
)
____________________________________)
IN THE MATTER OF:

CERCLA Docket No. 10-2025-0125

ADMINISTRATIVE SETTLEMENT
AGREEMENT AND ORDER ON
CONSENT FOR REMEDIAL DESIGN

TABLE OF CONTENTS

I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
XIII.
XIV.
XV.
XVI.
XVII.
XVIII.
XIX.
XX.
XXI.
XXII.
XXIII.
XXIV.
XXV.
XXVI.

JURISDICTION AND GENERAL PROVISIONS ......................................................... 1
PARTIES BOUND ........................................................................................................... 1
DEFINITIONS ................................................................................................................. 2
FINDINGS OF FACT ...................................................................................................... 5
CONCLUSIONS OF LAW AND DETERMINATIONS ................................................ 7
SETTLEMENT AGREEMENT AND ORDER .............................................................. 7
PERFORMANCE OF THE WORK ................................................................................ 7
PROPERTY REQUIREMENTS .................................................................................... 10
ACCESS TO INFORMATION ...................................................................................... 11
RECORD RETENTION ................................................................................................ 12
COMPLIANCE WITH OTHER LAWS ........................................................................ 13
PAYMENT OF RESPONSE COSTS ............................................................................ 13
DISPUTE RESOLUTION.............................................................................................. 15
FORCE MAJEURE ........................................................................................................ 16
STIPULATED PENALTIES.......................................................................................... 17
COVENANTS BY EPA ................................................................................................. 20
RESERVATIONS OF RIGHTS BY EPA ..................................................................... 20
COVENANTS BY RESPONDENTS ............................................................................ 22
OTHER CLAIMS ........................................................................................................... 23
EFFECT OF SETTLEMENT/CONTRIBUTION .......................................................... 23
INDEMNIFICATION .................................................................................................... 24
INSURANCE ................................................................................................................. 25
FINANCIAL ASSURANCE .......................................................................................... 26
INTEGRATION/APPENDICES .................................................................................... 33
MODIFICATION ........................................................................................................... 33
EFFECTIVE DATE ....................................................................................................... 33

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I.

JURISDICTION AND GENERAL PROVISIONS

1.
This Administrative Settlement Agreement and Order on Consent ("Settlement")
is entered into voluntarily by the United States Environmental Protection Agency (EPA) and the
Port of Seattle, City of Seattle, and King County ("Respondents"). This Settlement provides for
the performance of a Remedial Design (RD) by Respondents and the payment of certain
response costs incurred by the United States at or in connection with the East Waterway
Operable Unit ("EWOU") of the Harbor Island Superfund Site (the "Site") located immediately
to the southwest of the downtown area of Seattle, Washington, and generally depicted on the
diagram which is Appendix A to this Settlement.
2.
This Settlement is issued under the authority vested in the President of the United
States by Sections 104, 107, and 122 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, (CERCLA), as amended. This authority was delegated
to the EPA Administrator on January 23, 1987, by Executive Order 12580, 52 Fed. Reg. 2923
(Jan. 29, 1987), and further delegated to the EPA Regional Administrators by EPA Delegation
Nos. 14-14C (Administrative Actions Through Consent Orders, Jan. 18, 2017) and 14-14D (Cost
Recovery Non-Judicial Agreements and Administrative Consent Orders, Jan. 18, 2017). These
authorities were further redelegated by the Regional Administrator of EPA Region 10 to the
Branch Manager, Remedial Cleanup Branch by EPA Region 10 Delegations R10 14-14-C (July
30, 2024) and R10 14-14-D (July 30, 2024).
3.
In accordance with Section 122(j)(1) of CERCLA, 42 U.S.C. § 9622(j)(1), EPA
notified the National Oceanic and Atmospheric Administration, United States Fish and Wildlife
Service, Suquamish Tribe, Muckleshoot Indian Tribe, and Yakama Nation of negotiations with
potentially responsible parties regarding the release of hazardous substances that may have
resulted in injury to the natural resources under federal trusteeship and encouraged these trustees
to participate in the negotiation of this Settlement.
4.
EPA and Respondents recognize that this Settlement has been negotiated in good
faith and that the actions undertaken by Respondents in accordance with this Settlement do not
constitute an admission of any liability. Respondents do not admit, and retain the right to
controvert in any subsequent proceedings other than proceedings to implement or enforce this
Settlement, the validity of the findings of facts, conclusions of law, and determinations in
Sections IV (Findings of Fact) and V (Conclusions of Law and Determinations) of this
Settlement. Respondents agree to comply with and be bound by the terms of this Settlement and
further agree that they will not contest the basis or validity of this Settlement or its terms.
II.

PARTIES BOUND

5.
This Settlement is binding upon EPA and upon Respondents and their successors,
and assigns. Any change in ownership or corporate status of a Respondent including, but not
limited to, any transfer of assets or real or personal property shall not alter such Respondent's
responsibilities under this Settlement.
6.
Respondents are jointly and severally liable for carrying out all activities required
by this Settlement. In the event of the insolvency or other failure of any Respondent to

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implement the requirements of this Settlement, the remaining Respondents shall complete all
such requirements.
7.
Each undersigned representative of Respondents certifies that he or she is fully
authorized to enter into the terms and conditions of this Settlement and to execute and legally
bind Respondents to this Settlement.
8.
Respondents shall provide a copy of this Settlement to each contractor hired to
perform the Work required by this Settlement and to each person representing any Respondents
with respect to the EWOU or the Work and shall condition all contracts entered into under this
Settlement on performance of the Work in conformity with the terms of this Settlement.
Respondents or their contractors shall provide written notice of the Settlement to all
subcontractors hired to perform any portion of the Work required by this Settlement.
Respondents shall nonetheless be responsible for ensuring that their contractors and
subcontractors perform the Work in accordance with the terms of this Settlement.
III.

DEFINITIONS

9.
Unless otherwise expressly provided in this Settlement, terms used in this
Settlement 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 Settlement or its attached appendices, the following definitions shall
apply:
"Affected Property" shall mean all real property within the EWOU and any other real
property where EPA determines, at any time, that access or land, water, or other resource
use restrictions are needed to implement the RD.
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation,
and Liability Act, as amended.
"Day" or "day" shall mean a calendar day. In computing any period of time under
this Settlement, where the last day would fall on a Saturday, Sunday, or federal or state
holiday, the period shall run until the close of business of the next working day.
"Effective Date" shall mean the effective date of this Settlement as provided in
Section XXVI.
"Ecology" shall mean the Washington State Department of Ecology and any of its
successor departments or agencies of the State of Washington.
"EPA" shall mean the United States Environmental Protection Agency.
"EPA Hazardous Substance Superfund" shall mean the Hazardous Substance
Superfund established by the Internal Revenue Code, 26 U.S.C. § 9507.
"EWOU" shall mean the East Waterway Operable Unit of the Harbor Island
Superfund Site, encompassing approximately 157 acres of sediments below Mean Higher

2

High Water (MHHW), and extending for approximately 8,250 feet adjacent to the eastern
side of Harbor Island in Seattle, Washington and depicted generally on the map attached as
Appendix A. It does not include downstream or upstream areas (such as the Lower
Duwamish Waterway Superfund Site), groundwater, or locations above MHHW.
"EWOU Special Account" shall mean the special account within the EPA Hazardous
Substance Superfund, established for the Site by EPA pursuant to Section 122(b)(3) of
CERCLA, 42 U.S.C. § 9622(b)(3), and a prior administrative settlement.
"Future Oversight Costs" shall mean that portion of Future Response Costs that EPA
incurs in monitoring and supervising Respondents' performance of the Work to determine
whether such performance is consistent with the requirements of this Settlement, including
costs incurred in reviewing deliverables submitted pursuant to this Settlement, as well as
costs incurred in overseeing implementation of the Work; however, Future Oversight Costs
do not include, inter alia: the costs incurred by EPA pursuant to Section VIII (Property
Requirements), Paragraph 92 (Access to Financial Assurance), Paragraph 23 (Emergencies
and Releases), and Paragraph 68 (Work Takeover), or the costs incurred by the United
States in enforcing the terms of this Settlement, including all costs incurred in connection
with Section XIII (Dispute Resolution) and all litigation costs.
"Future Response Costs" shall mean all costs, including, but not limited to, direct
and indirect costs, that the United States incurs in reviewing or developing deliverables
submitted pursuant to this Settlement, in overseeing implementation of the Work, or
otherwise implementing, overseeing, or enforcing this Settlement, including but not limited
to, payroll costs, contractor costs, travel costs, laboratory costs, the costs incurred pursuant
to Section VIII (Property Requirements) (including, but not limited to, cost of attorney time
and any monies paid to secure or enforce access, including, but not limited to, the amount of
just compensation), Paragraph 68 (Work Takeover), Paragraph 23 (Emergencies and
Releases), Paragraph 92 (Access to Financial Assurance), Paragraph 24 (Community
Involvement, (including the costs of any technical assistance grant under Section 117(e) of
CERCLA, 42 U.S.C. § 9617(e)), and the costs incurred by the United States in enforcing the
terms of this Settlement, including all costs incurred in connection with Dispute Resolution
pursuant to Section XIII (Dispute Resolution) and all litigation costs (except costs incurred
by the United States as a result of its status as a potentially responsible party under
CERCLA, as described in Paragraph 73. Future Response Costs shall also include all
Interim Response Costs, and any Interest on Past Response Costs accrued due to late
payment under Paragraph 43, and Agency for Toxic Substances and Disease Registry's
(ATSDR's) CERCLA-recoverable costs regarding the EWOU.
"Interest" shall mean interest at the rate specified for interest on investments of the
EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507, compounded
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 subject to change on October 1 of each year. Rates are available online at
https://www.epa.gov/superfund/superfund-interest-rates.

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"Interim Record of Decision" or "IROD" shall mean the EPA Record of Decision
relating to the EWOU signed on May 28, 2024 by the Principal Deputy Assistant
Administrator in the Office of Land and Emergency Management, and all attachments
thereto. The IROD is maintained in the file system of EPA.
"Interim Remedial Action" or "IRA" shall mean the interim remedial action selected
in the IROD.
"Interim Response Costs" shall mean all costs, including, but not limited to, direct
and indirect costs: (a) paid by the United States in connection with the EWOU between June
4, 2025, and the Effective Date, or (b) incurred prior to the Effective Date, but paid by the
United States after that date.
"National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous
Substances Pollution Contingency Plan promulgated pursuant to Section 105 of CERCLA,
42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto.
"Non-Settling Owner" shall mean any person, other than a Respondent, that owns or
controls any Affected Property, including the State of Washington Department of Natural
Resources. The clause "Non-Settling Owner's Affected Property" means Affected Property
owned or controlled by Non-Settling Owner.
"Owner Respondent" shall mean any Respondent that owns or controls any Affected
Property. The clause "Owner Respondent's Affected Property" means Affected Property
owned or controlled by Owner Respondent.
"Paragraph" shall mean a portion of this Settlement identified by an Arabic numeral
or an upper- or lower-case letter.
"Parties" shall mean EPA and Respondents.
"Past Response Costs" shall mean all costs, including, but not limited to, direct and
indirect costs, that the United States paid at or in connection with the EWOU from
September 30, 2019 through June 4, 2025.
"Performance Standards" or "PS" shall mean the sediment Remedial Action Levels
(RALs), for contaminants of concern (COCs) as set forth in the IROD.
"RCRA" shall mean the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992 (also
known as the Resource Conservation and Recovery Act).
"Remedial Design" or "RD" shall mean those activities to be undertaken by
Respondents to develop the final plans and specifications for the IRA as stated in the SOW.
"Respondents" shall mean the Port of Seattle, City of Seattle, and King County.
"Section" shall mean a portion of this Settlement identified by a Roman numeral.

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"Settlement" shall mean this Administrative Settlement Agreement and Order on
Consent and all appendices attached hereto (listed in Section XXIV
(Integration/Appendices)). In the event of conflict between this Settlement and any
appendix, this Settlement shall control.
"Statement of Work" or "SOW" shall mean the document describing the activities
Respondents must perform to implement the RD, which is attached as Appendix B.
"Supervising Contractor" shall mean the principal contractor retained by
Respondents to supervise and direct the implementation of the Work under this Settlement.
"Transfer" shall mean to sell, assign, convey, lease, mortgage, or grant a security
interest in, or where used as a noun, a sale, assignment, conveyance, or other disposition of
any interest by operation of law or otherwise.
"United States" shall mean the United States of America and each department,
agency, and instrumentality of the United States, including EPA.
"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)
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" shall mean all activities and obligations Respondents are required to perform
under this Settlement, except those required by Section X (Record Retention).
IV.

FINDINGS OF FACT

10.
Early industrial and commercial use of the EWOU was originally focused on the
eastern shore and consisted of fish processing facilities, shipyards, and facilities with flour mills,
grain elevators, lumber yards, and cold storage. Wharves constructed on creosoted piles were
built in the early 1900s along both sides of the EWOU. The United States has also used the
EWOU for military and industrial purposes, including but not limited to the Naval Industrial
Reserve Shipyard. Commercial and industrial use occurred adjacent to or in the EWOU,
including oil terminals (constructed in 1929), shipyards, rail transfer terminals, lead smelter, cold
storage, lumber yards, and sand and gravel transfer stations. Sewage and stormwater have been
discharged to the EWW for many years. Beginning in or around 1958, the Municipality of
Metropolitan Seattle (Metro) formed to address regional wastewater and by 1969, Metro was
directing combined sewage from this area to the treatment plant at West Point.
11.
By 1919, the EWOU was an authorized Federal navigation channel. Dredging in
the EWOU has been conducted to maintain and deepen existing berths and to deepen part of the
Federal navigation channel. As of 2018, the northern portion of EWOU has an authorized depth
of -57 feet mean lower low water (MLLW) and the southern portion is -34 feet MLLW. The
main channel has been dredged at least 13 times since 1960 to maintain the authorized depth.
12.
As a result of releases and threatened releases of hazardous substances, pollutants,
or contaminants to soil and sediment, and potential routes of human and environmental exposure

5

to that contamination, EPA placed the Harbor Island Superfund Site on the National Priorities
List in September of 1983.
13.
The Port of Seattle performed a removal action for the EWOU in 2004-2005
under EPA oversight and direction pursuant to an Administrative Order on Consent in CERCLA
Docket No. 10-2003-0166. The removal action was undertaken in a 20-acre area of the middle to
south portion of the EWOU and consisted of the dredging and offsite disposal of approximately
273.300 cubic yards of contaminated sediments followed by placement of sand or gravel as a
cover for the dredged area.
14.
EPA completed an initial remedial investigation for the Harbor Island Superfund
Site in 1993. That remedial investigation focused primarily on the upland area of the Harbor
Island Superfund Site. In 2006, additional work began to specifically characterize the EWOU.
An Administrative Settlement Agreement and Order on Consent (ASAOC) for performance of a
supplemental remedial investigation (SRI) and feasibility Study (FS) exclusively for the EWOU was
entered into between EPA and the Port of Seattle on October 20, 2006, in CERCLA Docket No.
10-2007-0030. Under the oversight of EPA and with funding assistance provided by the City of
Seattle and King County, the SRI was completed in 2014 and the FS in 2019, however, EPA then
determined further work was necessary to complete the SRI/FS for the EWOU and some of that
work is still ongoing. The nature and extent of contamination in the EWOU are detailed in the
SRI and alternatives for addressing that contamination are set forth and compared in the FS.
15.
The data and other information developed in the SRI and other investigations
shows there to be contamination of sediments, surface water, fish, and invertebrates in the
EWOU. This contamination includes, but is not limited to, polychlorinated biphenyls (PCBs),
carcinogenic polycyclic aromatic hydrocarbons (cPAHs), dioxins/furans, arsenic, tributyltin,
metals, and other organic compounds. An assessment of exposure routes to this contamination
was undertaken as part of the SRI and shows there to be potentially unacceptable risks to human
health and the environment.
16.
EPA prepared a proposed plan in 2023 which summarized data and other
information about the nature and extent of contamination in the EWOU and compared the
remedial action alternatives developed for addressing that contamination. After providing an
opportunity for public, tribal, and state comment on the proposed plan, EPA issued an Interim
Record of Decision (IROD) for the EWOU in May of 2024. In the IROD, EPA responded to the
comments received on the proposed plan and set forth the selected remedial action for the
EWOU.
17.
The remedial action is to address approximately 121 acres of contaminated
sediments and will include the dredging of 99 acres or approximately 940,000 cubic yards of
contaminated sediments and the offsite disposal of those sediments. There is also to be capping
of seven acres of contaminated sediments, in-situ treatment of 12 acres of contaminated
sediments located under docks and piers, and 3 acres of enhanced natural recovery of
contaminated sediments. In addition, 36 acres of contaminated sediments will be subject to
monitored natural attenuation and a residual management layer will be applied to dredged areas
and adjacent locations. Further, institutional controls will be established to limit exposures to
remaining contamination and protect the integrity of the remedial action, and short-term

6

monitoring will be undertaken following implementation of the remedial action to assess the
success of the work.
18.
Respondents each have responsibility or control over areas or conduits which
may have contributed contamination to the EWOU.
V.

CONCLUSIONS OF LAW AND DETERMINATIONS

19.
Based on the Findings of Fact set forth above and the administrative record, EPA
has determined that:
a.
The EWOU is a "facility" as defined by Section 101(9) of CERCLA, 42
U.S.C. § 9601(9).
b.
The contamination found at the EWOU, as identified in the Findings of
Fact above, includes hazardous substances, pollutants, or contaminants as defined
by Sections 101(14) and (33) of CERCLA, 42 U.S.C. §§ 9601(14) & (33).
c.
Respondents are each a "person" as defined by Section 101(21) of
CERCLA, 42 U.S.C. § 9601(21).
d.
Respondents are each a responsible party under Section 107(a) of
CERCLA, 42 U.S.C. § 9607(a).
e.
The conditions described in the Findings of Fact constitute an actual or
threatened "release" of a hazardous substance, pollutant, or contaminant from the
facility as defined by Section 101(22) of CERCLA, 42 U.S.C.§ 9601(22).
f.
The RD required by this Settlement is necessary to protect the public
health, welfare, or the environment and, if carried out in compliance with the
terms of this Settlement, will be consistent with the NCP, as provided in Section
300.700(c)(3)(ii) of the NCP.
VI.

SETTLEMENT AGREEMENT AND ORDER

20.
Based upon the Findings of Fact, Conclusions of Law, and Determinations set
forth above, and the administrative record, it is hereby Ordered and Agreed that Respondents
shall comply with all provisions of this Settlement, including, but not limited to, all appendices
to this Settlement and all documents incorporated by reference into this Settlement.
VII.
21.

PERFORMANCE OF THE WORK

Coordination and Supervision
a.

Project Coordinators.

(1) Respondents' Project Coordinator must have sufficient technical
expertise to coordinate the Work. Respondents' Project Coordinator may not be

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an attorney representing any Respondent in this matter and may not act as the
Supervising Contractor. Respondents' Project Coordinator may assign other
representatives, including other contractors, to assist in coordinating the Work.
(2)
EPA has designated Ravi Sanga as On-Scene
Coordinator/Remedial Project Manager (OSC/RPM). EPA may designate other
representatives, which may include its employees, contractors and/or consultants,
to oversee the Work. EPA's OSC/RPM will have the authority to oversee and
direct the Work as well as other authorities described in the NCP. This includes
the authority to halt the Work and/or to conduct or direct any necessary response
action when the OSC/RPM determines that conditions at the EWOU constitute
an emergency or may present an immediate threat to public health or welfare or
the environment due to a release or threatened release of Waste Material. All
deliverables, notices, notifications, proposals, reports, and requests specified in
this Settlement must be in writing, unless otherwise specified, and be submitted
by email to the OSC/RPM, Ravi Sanga, at sanga.ravi@epa.gov.
(3)
Respondents' Project Coordinators shall meet with the OSC/RPM
at least monthly or as may otherwise be agreed to or approved by the OSC/RPM.
b.
Supervising Contractor. Respondents' proposed Supervising Contractor
must have sufficient technical expertise to supervise the Work and a quality
assurance system that complies with ASQ/ANSI E4:2014, "Quality management
systems for environmental information and technology programs - Requirements
with guidance for use" (American Society for Quality, February 2014).
c.

Procedures for Disapproval/Notice to Proceed

(1) Respondents shall designate, and notify EPA, within 14 days after
the Effective Date, of the name[s], title[s], contact information, and
qualifications of Respondents' proposed Project Coordinator and Supervising
Contractor, whose qualifications shall be subject to EPA's review for verification
based on objective assessment criteria (e.g., experience, capacity, technical
expertise) and do not have an unwaivable conflict of interest with respect to the
project.
(2) EPA shall issue notices of disapproval and/or authorizations to
proceed regarding the proposed Project Coordinator and Supervising Contractor,
as applicable. If EPA issues a notice of disapproval, Respondents shall, within 30
days, submit to EPA a list of supplemental proposed Project Coordinators and/or
Supervising Contractors, as applicable, including a description of the
qualifications of each. EPA shall issue a notice of disapproval or authorization to
proceed regarding each supplemental proposed coordinator and/or contractor.
Respondents may select any coordinator/contractor covered by an authorization
to proceed and shall, within 21 days, notify EPA of Respondents' selection.

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(3) Respondents may change their Project Coordinator and/or
Supervising Contractor, as applicable, by following the procedures of 21.c(1)
and 21.c(2).
22.
Performance of Work in Accordance with SOW. Respondents shall develop
the RD in accordance with the SOW and all EPA-approved, conditionally approved, or modified
deliverables as required by the SOW. All deliverables required to be submitted for approval
under the Settlement or SOW shall be subject to approval by EPA in accordance with Paragraph
7.6 (Approval of Deliverables) of the SOW.
23.
Emergencies and Releases. Respondents shall comply with the emergency and
release response and reporting requirements under Paragraph 5.15 (Emergency Response and
Reporting) of the SOW. Subject to Section XVI (Covenants by EPA), nothing in this Settlement,
including Paragraph 5.15 of the SOW, limits any authority of EPA: (a) to take all appropriate
action to protect human health and the environment or to prevent, abate, respond to, or minimize
an actual or threatened release of Waste Material on, at, or from the EWOU, or (b) to direct or
order such action to protect human health and the environment or to prevent, abate, respond to,
or minimize an actual or threatened release of Waste Material on, at, or from the EWOU. If, due
to Respondents' failure to take appropriate response action under Paragraph 5.15 of the SOW,
EPA takes such action instead, Respondents shall reimburse EPA under Section XII (Payment of
Response Costs) for all costs of the response action.
24.
Community Involvement. If requested by EPA, Respondents shall conduct
community involvement activities under EPA's oversight as provided for in, and in accordance
with, Section 2 (Community Involvement) of the SOW. Such activities may include, but are not
limited to, designation of a Community Involvement Coordinator and implementation of a
technical assistance plan. Costs incurred by EPA under this Section constitute Future Response
Costs to be reimbursed under Section XII (Payments of Response Costs).
25.

Modification of SOW or Related Deliverables
a.
If EPA determines that it is necessary to modify the work specified in the
SOW and/or in deliverables developed under the SOW in order to carry out the
RD, EPA will notify Respondents of such modification. If Respondents object to
the modification they may, within 30 days after EPA's notification, seek dispute
resolution under Section XIII (Dispute Resolution).
b.
The SOW and/or related work plans shall be modified: (1) in accordance
with the modification issued by EPA; or (2) if Respondents invoke dispute
resolution, in accordance with the final resolution of the dispute. The modification
shall be incorporated into and enforceable under this Settlement, and Respondents
shall implement all work required by such modification. Respondents shall
incorporate the modification into the deliverable required under the SOW, as
appropriate.

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c.
Nothing in this Paragraph shall be construed to limit EPA's authority to
require performance of further response actions as otherwise provided in this
Settlement.
VIII. PROPERTY REQUIREMENTS
26.
Agreements Regarding Access and Non-Interference. Respondents shall, with
respect to any Non-Settling Owner's Affected Property, use best efforts to secure from such
Non-Settling Owner an agreement, enforceable by Respondents and EPA, providing that such
Non-Settling Owner and Owner Respondent shall, with respect to Non-Settling Owner's
Affected Property: (i) provide EPA, Respondents, and their representatives, contractors, and
subcontractors with access at all reasonable times to such Affected Property to conduct any
activity regarding the Settlement, including those activities listed in Paragraph 26.a (Access
Requirements); and (ii) refrain from using such Affected Property in any manner that EPA
determines will pose an unacceptable risk to human health or to the environment due to exposure
to Waste Material, or that interferes with or adversely affects the implementation or integrity of
the RD. Respondents shall provide a copy of such access agreement(s) to EPA.
a.
Access Requirements. The following is a list of activities for which
access is required regarding the Affected Property:
(1)

Monitoring the Work;

(2)

Verifying any data or information submitted to the United States;

(3)
EWOU;

Conducting investigations regarding contamination at or near the

(4)

Obtaining samples;

(5)
Assessing the need for, planning, implementing, or monitoring
response actions;
(6)
Assessing implementation of quality assurance and quality control
practices as defined in the approved quality assurance quality control plan as
provided in the SOW;
(7)
Implementing the Work pursuant to the conditions set forth in ¶ 68
(Work Takeover);
(8)
Inspecting and copying records, operating logs, contracts, or other
documents maintained or generated by Respondents or their agents, consistent
with Section IX (Access to Information); and
(9)

Assessing Respondents' compliance with the Settlement.

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27.
Best Efforts. As used in this Section, "best efforts" means the efforts that a
reasonable person in the position of Respondents would use so as to achieve the goal in a timely
manner, including the cost of employing professional assistance and the payment of reasonable
sums of money to secure access, as required by this Section. If Respondents are unable to
accomplish what is required through "best efforts" in a timely manner, they shall notify EPA and
include a description of the steps taken to comply with the requirements. If EPA deems it
appropriate, it may assist Respondents, or take independent action, in obtaining such access. All
costs incurred by the United States in providing such assistance or taking such action, including
the cost of attorney time and the amount of monetary consideration or just compensation paid,
constitute Future Response Costs to be reimbursed under Section XII (Payment of Response
Costs).
28.
In the event of any Transfer of the Affected Property, unless EPA otherwise
consents in writing, Respondents shall continue to comply with their obligations under the
Settlement, including their obligation[s] to secure access.
29.
Notice to Successors-in-Title. Owner Respondent shall, prior to entering into a
contract to Transfer its Affected Property, or 60 days prior to Transferring its Affected Property,
whichever is earlier: (a) Notify the proposed transferee that EPA has determined that an RD must
be performed at the EWOU, that potentially responsible parties have entered into an
Administrative Settlement Agreement and Order on Consent requiring implementation of such
RD (identifying the name, docket number, and the effective date of this Settlement); and (b)
Notify EPA of the name and address of the proposed transferee and provide EPA with a copy of
the above notice that it provided to the proposed transferee.
30.
Notwithstanding any provision of the Settlement, EPA retains all of its access
authorities and rights, as well as all of their rights to require land, water, or other resource use
restrictions, including enforcement authorities related thereto under CERCLA, RCRA, and any
other applicable statute or regulations.
IX.

ACCESS TO INFORMATION

31.
Respondents shall provide to EPA, 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 or adjacent to the EWOU or to the
implementation of this Settlement, 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 EPA, for purposes of investigation, information gathering, or testimony, their
employees, agents, or representatives with knowledge of relevant facts concerning the
performance of the Work.
32.

Privileged and Protected Claims
a.
Respondents may assert all or part of a Record requested by EPA is
privileged or protected as provided under federal law and under the Washington

11

Uniform Mediation Act, RCW 7.07, in lieu of providing the Record, provided
Respondents comply with ¶ 32.b, and except as provided in ¶ 32.c.
b.
If Respondents assert such a privilege or protection, they shall provide
EPA 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, of 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, Respondents shall provide the Record to EPA in
redacted form to mask the privileged or protected portion only. Respondents shall
retain all Records that they claim to be privileged or protected until EPA has had
a reasonable opportunity to dispute the privilege or protection claim and any such
dispute has been resolved in Respondents' favor.
c.
Respondents may make no claim of privilege or protection regarding:
(1) any data regarding the EWOU, including, but not limited to, all sampling,
analytical, monitoring, hydrogeological, scientific, chemical, radiological, or
engineering data, or the portion of any other Record that evidences conditions at
or around the EWOU; or (2) the portion of any Record that Respondents are
required to create or generate pursuant to this Settlement.
33.
Business Confidential Claims. Respondents may assert that all or part of a
Record provided to EPA under this Section or Section X (Record Retention) 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). Respondents shall segregate and clearly
identify all Records or parts thereof submitted under this Settlement for which Respondents
assert business confidentiality claims. Records claimed as confidential business information will
be afforded the protection specified in 40 C.F.R. Part 2, Subpart B. If no claim of confidentiality
accompanies Records when they are submitted to EPA, or if EPA has notified Respondents 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 Respondents.
34.
Notwithstanding any provision of this Settlement, EPA 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.
X.

RECORD RETENTION

35.
Until 10 years after EPA provides notice pursuant to Paragraph 5.17 of the SOW
(Notice of Work Completion), that all work has been fully performed in accordance with this
Settlement, Respondents shall preserve and retain all non-identical copies of Records (including
Records in electronic form) now in their possession or control or that come into their possession
or control that relate in any manner to their liability under CERCLA with respect to the EWOU,
provided, however, that Respondents who are potentially liable as owners or operators of the
EWOU must retain, in addition, all Records that relate to the liability of any other person under
CERCLA with respect to the EWOU. Each Respondent must also retain, and instruct its

12

contractors and agents to preserve, for the same period of time specified above, all non-identical
copies of the last draft or final version of any Records (including Records in electronic form)
now in their possession or control or that come into their possession or control that relate in any
manner to the performance of the Work, provided, however, that each Respondent (and its
contractors and agents) must retain, in addition, copies of all data generated during the
performance of the Work and not contained in the aforementioned Records required to be
retained. Each of the above record retention requirements shall apply regardless of any corporate
retention policy to the contrary.
36.
At the conclusion of the document retention period, Respondents shall notify EPA
at least 90 days prior to the destruction of any such Records and, upon request by EPA, and
except as provided for in ¶ 32 (Privileged and Protected Claims), Respondents shall deliver any
such Records to EPA.
37.
Each Respondent 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 (other than identical copies) relating to its potential liability regarding
the EWOU since notification of potential liability by EPA and that it has fully complied with any
and all EPA requests for information regarding the EWOU pursuant to Sections 104(e) and
122(e) of CERCLA, 42 U.S.C. §§ 9604(e) and 9622(e), and Section 3007 of RCRA, 42 U.S.C. §
6927.
XI.

COMPLIANCE WITH OTHER LAWS

38.
Nothing in this Settlement limits Respondents' obligations to comply with the
requirements of all applicable federal and state laws and regulations. Respondents must also
comply with all applicable or relevant and appropriate requirements of all federal and state
environmental laws as set forth in the ROD and the SOW. The activities conducted pursuant to
this Settlement, if approved by EPA, shall be considered consistent with the NCP.
39.
Permits. As provided in Section 121(e) of CERCLA, 42 U.S.C. § 9621(e), and
Section 300.400(c)(3) of the NCP, no permit shall be required for any portion of the Work
conducted entirely on-site (i.e. within the areal extent of contamination or in very close
proximity to the contamination and necessary for implementation of the Work). Where any
portion of the Work that is not on-site requires a federal, state, or local permit or approval,
Respondents shall submit timely and complete applications and take all other actions necessary
to obtain and to comply with all such permits or approvals.
40.
Respondents may seek relief under the provisions of Section XIV (Force
Majeure) for any delay in performance of the Work resulting from a failure to obtain, or a delay
in obtaining, any permit or approval referenced in ¶ 39 (Permits) and required for the Work,
provided that they have submitted timely and complete applications and taken all other actions
necessary to obtain all such permits or approvals. This Settlement is not, and shall not be
construed to be, a permit issued pursuant to any federal or state statute or regulation.
XII.
41.

PAYMENT OF RESPONSE COSTS

Payment for Past Response Costs
13

a.
Within 30 days after the Effective Date, Respondents shall pay to EPA
$1,427,692.69 for Past Response Costs. Respondent shall make the payment at
https://www.pay.gov in accordance with the following payment instructions: enter
"sfo 1.1" in the search field to access EPA's Miscellaneous Payment Form -
Cincinnati Finance Center. Complete the form including the Site Name, docket
number, and Site/Spill ID Number 10 T3. Respondents shall send to EPA, in
accordance with Paragraph 21.a(2), a notice of this payment including these
references. Each Respondent may pay EPA $475,897.56 to satisfy this
requirement provided all three Respondents pay this amount. Should there be an
unpaid balance such that the total amount of Past Response Costs paid to EPA by
the due date fails to equal $1,427,692.69, all three Respondents will be subject to
the requirements of Paragraph 43 and Section XV (Stipulated Penalties).
b.
Deposit of Past Response Costs Payments. The total amount to be paid
by Respondents pursuant to ¶ 41.a shall be deposited by EPA in the Harbor Island
Special Account to be retained and used to conduct or finance response actions at
or in connection with the Harbor Island Superfund Site, or to be transferred by
EPA to the EPA Hazardous Substance Superfund.
42.
Payments for Future Response Costs. Respondents shall pay to EPA all Future
Response Costs not inconsistent with the NCP.
a.
Periodic Bills. On a periodic basis, EPA will send Respondents a bill
requiring payment that includes a standard regionally prepared cost summary,
which includes direct and indirect costs incurred by EPA, its contractors and
subcontractors, and the United States Department of Justice. Respondents shall
make all payments within 30 days after Respondents' receipt of each bill
requiring payment, except as otherwise provided in ¶ 45 (Contesting Future
Response Costs). Respondents shall make all payments and send notice of the
payments in accordance with the procedures under ¶ 41.a (Payment for Past
Response Costs).
b.
Deposit of Future Response Costs Payments. The total amount to be
paid by Respondents pursuant to ¶ 42.a (Periodic Bills) shall be deposited by EPA
in the Harbor Island Special Account to be retained and used to conduct or
finance response actions at or in connection with the Harbor Island Superfund
Site, or to be transferred by EPA to the EPA Hazardous Substance Superfund,
provided, however, that EPA may deposit a Future Response Costs payment
directly into the EPA Hazardous Substance Superfund if, at the time the payment
is received, EPA estimates that the Harbor Island Special Account balance is
sufficient to address currently anticipated future response actions to be conducted
or financed by EPA at or in connection with the Harbor Island Superfund Site.
Any decision by EPA to deposit a Future Response Costs payment directly into
the EPA Hazardous Substance Superfund for this reason shall not be subject to
challenge by Respondents pursuant to the dispute resolution provisions of this
Settlement or in any other forum.

14

43.
Interest. In the event that any payment for Past Response Costs or Future
Response Costs is not made by the date required, Respondents shall pay Interest on the unpaid
balance. The Interest on Past Response Costs shall begin to accrue on the Effective Date. The
Interest on Future Response Costs shall begin to accrue on the date of the bill. The Interest shall
accrue through the date of Respondents' payment. Payments of Interest made under this
Paragraph shall be in addition to such other remedies or sanctions available to the United States
by virtue of Respondents' failure to make timely payments under this Section, including but not
limited to, payment of stipulated penalties pursuant to Section XV (Stipulated Penalties).
44.
Contesting Future Response Costs. Respondents may initiate the procedures of
Section XIII (Dispute Resolution) regarding payment of any Future Response Costs billed under
¶ 42 (Payments for Future Response Costs) if they determine that EPA has made a mathematical
error or included a cost item that is not within the definition of Future Response Costs, or if they
believe EPA incurred excess costs as a direct result of an EPA action that was inconsistent with a
specific provision or provisions of the NCP. To initiate such dispute, Respondents shall submit a
Notice of Dispute in writing to the OSC/RPM within 30 days after receipt of the bill. Any such
Notice of Dispute shall specifically identify the contested Future Response Costs and the basis
for objection. If Respondents submit a Notice of Dispute, Respondents shall within the 30-day
period, also as a requirement for initiating the dispute, (a) pay all uncontested Future Response
Costs to EPA in the manner described in ¶ 42.a and (b) establish, in a duly chartered bank or
trust company, an interest-bearing escrow account that is insured by the Federal Deposit
Insurance Corporation (FDIC) and remit to that escrow account funds equivalent to the amount
of the contested Future Response Costs. Respondents shall send to the OSC/RPM a copy of the
transmittal letter and check paying the uncontested Future Response Costs, and a copy of the
correspondence that establishes and funds the escrow account, including, but not limited to,
information containing the identity of the bank and bank account under which the escrow
account is established as well as a bank statement showing the initial balance of the escrow
account. If EPA prevails in the dispute, within 5 days after the resolution of the dispute,
Respondents shall pay the sums due (with accrued interest) to EPA in the manner described in
¶ 42. If Respondents prevail concerning any aspect of the contested costs, Respondents shall pay
that portion of the costs (plus associated accrued interest) for which they did not prevail to EPA
in the manner described in ¶ 42. Respondents shall be disbursed any balance of the escrow
account. The dispute resolution procedures set forth in this Paragraph in conjunction with the
procedures set forth in Section XIII (Dispute Resolution) shall be the exclusive mechanisms for
resolving disputes regarding Respondents' obligation to reimburse EPA for its Future Response
Costs.
XIII. DISPUTE RESOLUTION
45.
Unless otherwise expressly provided for in this Settlement, the dispute resolution
procedures of this Section shall be the exclusive mechanism for resolving disputes arising under
this Settlement. The Parties shall attempt to resolve any disagreements concerning this
Settlement expeditiously and informally.
46.
Informal Dispute Resolution. If Respondents object to any EPA action taken
pursuant to this Settlement, including billings for Future Response Costs, they shall send EPA a
written Notice of Dispute describing the objection(s) within 30 days after such action, unless the

15

objection(s) has/have been resolved informally. EPA and Respondents shall have 20 days from
EPA's receipt of Respondents' Notice of Dispute to resolve the dispute through informal
negotiations (the "Negotiation Period"). The Negotiation Period may be extended at the sole
discretion of EPA. Any agreement reached by the Parties pursuant to this Section shall be in
writing and shall, upon signature by the Parties, be incorporated into and become an enforceable
part of this Settlement.
47.
Formal Dispute Resolution. If the Parties are unable to reach an agreement
within the Negotiation Period, Respondents shall, within 21 days after the end of the Negotiation
Period, submit a statement of position to EPA. EPA may, within 20 days thereafter, submit a
statement of position. Thereafter, an EPA management official at the Division Director level or
higher will issue a written decision on the dispute to Respondents. This decision shall be
incorporated into and become an enforceable part of this Settlement. Following resolution of the
dispute, as provided by this Section, Respondents shall fulfill the requirement that was the
subject of the dispute in accordance with the agreement reached or with the EPA decision,
whichever occurs.
48.
The invocation of formal dispute resolution procedures under this Section does
not extend, postpone, or affect in any way any obligation of Respondents under this Settlement,
except as provided by ¶ 44 (Contesting Future Response Costs), as agreed by EPA.
49.
Except as provided in ¶ 60, stipulated penalties with respect to the disputed matter
shall continue to accrue, but payment shall be stayed pending resolution of the dispute.
Notwithstanding the stay of payment, stipulated penalties shall accrue from the first day of
noncompliance with any applicable provision of this Settlement. In the event that Respondents
do not prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in
Section XV (Stipulated Penalties).
XIV. FORCE MAJEURE
50.
"Force Majeure" for purposes of this Settlement is defined as any event arising
from causes beyond the control of Respondents, of any entity controlled by Respondents, or of
Respondents' contractors that delays or prevents the performance of any obligation under this
Settlement despite Respondents' best efforts to fulfill the obligation. The requirement that
Respondents exercise "best efforts to fulfill the obligation" includes using best efforts to
anticipate any potential force majeure and best efforts to address the effects of any potential
force majeure (a) as it is occurring and (b) following the potential force majeure such that the
delay and any adverse effects of the delay are minimized to the greatest extent possible. "Force
majeure" does not include financial inability to complete the Work or increased cost of
performance.
51.
If any event occurs or has occurred that may delay the performance of any
obligation under this Settlement for which Respondents intend or may intend to assert a claim of
force majeure, Respondents shall notify the OSC/RPM orally or, in his or her absence, EPA's
Alternate OSC/RPM or, in the event both of EPA's designated representatives are unavailable,
the Branch Manager of the Superfund and Emergency Management Division, EPA Region 10,
within ten days of when Respondents first knew that the event might cause a delay. Within seven

16

days thereafter, Respondents shall provide in writing to EPA an explanation and description of
the reasons for the delay; the anticipated duration of the delay; all actions taken or to be taken to
prevent or minimize the delay; a schedule for implementation of any measures to be taken to
prevent or mitigate the delay or the effect of the delay; Respondents' rationale for attributing
such delay to a force majeure; and a statement as to whether, in the opinion of Respondents, such
event may cause or contribute to an endangerment to public health or welfare, or the
environment. Respondents shall include with any notice all available documentation supporting
their claim that the delay was attributable to a force majeure. Respondents shall be deemed to
know of any circumstance of which Respondents, any entity controlled by Respondents, or
Respondents' contractors knew or should have known. Failure to comply with the above
requirements regarding an event shall preclude Respondents from asserting any claim of force
majeure regarding that event, provided, however, that if EPA, despite the late or incomplete
notice, is able to assess to its satisfaction whether the event is a force majeure under ¶ 50 and
whether Respondents have exercised their best efforts under ¶ 50, EPA may, in its unreviewable
discretion, excuse in writing Respondents' failure to submit timely or complete notices under this
Paragraph.
52.
If EPA agrees that the delay or anticipated delay is attributable to a force majeure,
the time for performance of the obligations under this Settlement that are affected by the force
majeure will be extended by EPA for such time as is necessary to complete those obligations. An
extension of the time for performance of the obligations affected by the force majeure shall not,
of itself, extend the time for performance of any other obligation. If EPA does not agree that the
delay or anticipated delay has been or will be caused by a force majeure, EPA will notify
Respondents in writing of its decision. If EPA agrees that the delay is attributable to a force
majeure, EPA will notify Respondents in writing of the length of the extension, if any, for
performance of the obligations affected by the force majeure.
53.
If Respondents elect to invoke the dispute resolution procedures set forth in
Section XIII (Dispute Resolution), they shall do so no later than 15 days after receipt of EPA's
notice. In any such proceeding, Respondents shall have the burden of demonstrating by a
preponderance of the evidence that the delay or anticipated delay has been or will be caused by a
force majeure, that the duration of the delay or the extension sought was or will be warranted
under the circumstances, that best efforts were exercised to avoid and mitigate the effects of the
delay, and that Respondents complied with the requirements of ¶¶ 50 and 51. If Respondents
carry this burden, the delay at issue shall be deemed not to be a violation by Respondents of the
affected obligation of this Settlement identified to EPA.
54.
The failure by EPA to timely complete any obligation under the Settlement is not
a violation of the Settlement, provided, however, that if such failure prevents Respondents from
meeting one or more deadlines under the Settlement, Respondents may seek relief under this
Section.
XV.

STIPULATED PENALTIES

55.
Respondents shall be liable to EPA for stipulated penalties in the amounts set
forth in ¶ 56.a for failure to comply with the obligations specified in ¶ 56.b, unless excused under
Section XIV (Force Majeure) or modified under Section XXV (Modification). "Comply" as used

17

in the previous sentence includes compliance by Respondents with all applicable requirements of
this Settlement, within the deadlines established under this Settlement. If (a) an initially
submitted or resubmitted deliverable contains a material defect, and the conditions are met for
modifying the deliverable under Paragraphs 7.6(a)(ii) and 7.6(b) of the SOW; or (b) a
resubmitted deliverable contains a material defect; then the material defect constitutes a lack of
compliance for purposes of this Paragraph.
56.
Stipulated Penalty Amounts: Payments, Financial Assurance, Deliverables in
RD Schedule.
a.
The following stipulated penalties shall accrue per violation per day for
any noncompliance with any obligation identified below:
Penalty Per Violation Per Day

Period of Noncompliance

$ 750

1st through 14th day

$ 2,000

15th through 30th day

$ 4,000

31st day and beyond

b.

Obligations

(1)
Payment of any amount due under Section XII (Payment of
Response Costs).
(2)
Establishment and maintenance of financial assurance in
accordance with Section XXIII (Financial Assurance).
(3)
Establishment of an escrow account to hold any disputed Future
Response Costs under ¶ 44 (Contesting Future Response Costs).
(4)
Submission of timely and adequate deliverables required under this
Settlement or the SOW.
57.
In the event that EPA assumes performance of a portion or all of the Work
pursuant to ¶ 68 (Work Takeover), Respondents shall be liable for a stipulated penalty in an
amount selected by EPA that will not exceed 33% of the cost of EPA's performance of the
takeover work. Stipulated penalties under this Paragraph are in addition to the remedies available
to EPA under ¶¶ 68 (Work Takeover) and 92 (Access to Financial Assurance).
58.
Stipulated penalties shall begin to accrue on the day after the complete
performance is due or the day a violation occurs and shall continue to accrue through the final
day of the correction of the noncompliance or completion of the activity. Penalties shall continue
to accrue during any dispute resolution period and shall be paid within 15 days after the
agreement or the receipt of EPA's decision. However, stipulated penalties shall not accrue: (a)
with respect to a deficient submission under Paragraph 7.6 (Approval of Deliverables) of the

18

SOW, during the period, if any, beginning on the 31st day after EPA's receipt of such
submission until the date that EPA notifies Respondents of any deficiency; and (b) with respect
to a decision by the EPA Division Director level or higher, under Section XIII (Dispute
Resolution), during the period, if any, beginning on the 21st day after the Negotiation Period
begins until the date that EPA issues a final decision regarding such dispute. Nothing in this
Settlement shall prevent the simultaneous accrual of separate penalties for separate violations of
this Settlement.
59.
Following EPA's determination that Respondents have failed to comply with a
requirement of this Settlement, EPA may give Respondents written notification of the failure and
describe the noncompliance. EPA may send Respondents a written demand for payment of the
penalties. However, penalties shall accrue as provided in the preceding Paragraph regardless of
whether EPA has notified Respondents of a violation.
60.
All penalties accruing under this Section shall be due and payable to EPA within
30 days after Respondents' receipt from EPA of a demand for payment of the penalties, unless
Respondents invoke the Dispute Resolution procedures under Section XIII (Dispute Resolution)
within the 30-day period. Respondents shall make all payments at https://www.pay.gov using the
link for "EPA Miscellaneous Payments Cincinnati Finance Center," including references to the
EWOU and Harbor Island Superfund Site, docket number for this action, and Site/Spill ID
Number 10 T3. For the purpose of the payment. Respondents shall send to EPA, in accordance
with the directions in ¶ 21.a(2), a notice of this payment including these references.
61.
If Respondents fail to pay stipulated penalties when due, Respondents shall pay
Interest on the unpaid stipulated penalties as follows: (a) if Respondents have timely invoked
dispute resolution such that the obligation to pay stipulated penalties has been stayed pending the
outcome of dispute resolution, Interest shall accrue from the date stipulated penalties are due
pursuant to ¶ 60 until the date of payment; and (b) if Respondents fail to timely invoke dispute
resolution, Interest shall accrue from the date of demand under ¶ 60 until the date of payment. If
Respondents fail to pay stipulated penalties and Interest when due, the United States may
institute proceedings to collect the penalties and Interest.
62.
The payment of penalties and Interest, if any, shall not alter in any way
Respondents' obligation to complete performance of the Work required under this Settlement.
63.
Nothing in this Settlement shall be construed as prohibiting, altering, or in any
way limiting the ability of EPA to seek any other remedies or sanctions available by virtue of
Respondents' violation of this Settlement or of the statutes and regulations upon which it is
based, including, but not limited to, penalties pursuant to Section 122(l) of CERCLA, 42 U.S.C.
§ 9622(l), and punitive damages pursuant to Section 107(c)(3) of CERCLA, 42 U.S.C.
§ 9607(c)(3), provided, however, that EPA shall not seek civil penalties pursuant to Section
122(l) of CERCLA or punitive damages pursuant to Section 107(c)(3) of CERCLA for any
violation for which a stipulated penalty is provided in this Settlement, except in the case of a
willful violation of this Settlement or in the event that EPA assumes performance of a portion or
all of the Work pursuant to ¶ 68 (Work Takeover).

19

64.
Notwithstanding any other provision of this Section, EPA may, in its
unreviewable discretion, waive any portion of stipulated penalties that have accrued pursuant to
this Settlement.
XVI. COVENANTS BY EPA
65.
Except as provided in Section XVII (Reservation of Rights by EPA), EPA
covenants not to sue or to take administrative action against Respondents pursuant to Sections
106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a), for the Work, Past Response Costs,
and Future Response Costs. These covenants shall take effect upon the Effective Date. These
covenants are conditioned upon the complete and satisfactory performance by Respondents of
their obligations under this Settlement. These covenants extend only to Respondents and do not
extend to any other person.
XVII. RESERVATIONS OF RIGHTS BY EPA
66.
Except as specifically provided in this Settlement, nothing in this Settlement shall
limit the power and authority of EPA or the United States to take, direct, or order all actions
necessary to protect public health, welfare, or the environment or to prevent, abate, or minimize
an actual or threatened release of hazardous substances, pollutants, or contaminants, or
hazardous or solid waste on, at, or from the Site. Further, nothing in this Settlement shall prevent
EPA from seeking legal or equitable relief to enforce the terms of this Settlement, from taking
other legal or equitable action as it deems appropriate and necessary, or from requiring
Respondents in the future to perform additional activities pursuant to CERCLA or any other
applicable law.
67.
The covenants set forth in Section XVI (Covenants by EPA) above do not pertain
to any matters other than those expressly identified therein. EPA reserves, and this Settlement is
without prejudice to, all rights against Respondents with respect to all other matters, including,
but not limited to:
a.
liability for failure by Respondents to meet a requirement of this
Settlement;
b.
liability for costs not included within the definitions of Past Response
Costs or Future Response Costs;
c.

liability for performance of response action other than the Work;

d.

criminal liability;

e.
liability for violations of federal or state law that occur during or after
implementation of the Work;
f.
liability for damages for injury to, destruction of, or loss of natural
resources, and for the costs of any natural resource damage assessments;

20

g.
liability arising from the past, present, or future disposal, release or threat
of release of Waste Materials outside of the Site;
h.
liability for costs incurred or to be incurred by the Agency for Toxic
Substances and Disease Registry related to the EWOU not paid as Future
Response Costs under this Settlement; and
i.
liability for costs incurred by EPA in performing response actions for the
EWOU prior to September 30, 2019. EPA agrees to consider the provision of
orphan share compensation in any future settlement of EWOU claims.
68.

Work Takeover
a.
In the event EPA determines that Respondents: (1) have ceased
implementation of any portion of the Work; (2) are seriously or repeatedly
deficient or late in their performance of the Work; or (3) are implementing the
Work in a manner that may cause an endangerment to human health or the
environment, EPA may issue a written notice ("Work Takeover Notice") to
Respondents. Any Work Takeover Notices issued by EPA (which writing may be
electronic) will specify the grounds upon which such notice was issued and will
provide Respondents a period of time ("Remedy Period") that is ten days or
longer, as prescribed by EPA, in its unreviewable discretion, within which to
remedy the circumstances giving rise to EPA's issuance of such notice.
b.
If, after expiration of the Remedy Period specified in ¶ 68.a Respondents
have not remedied to EPA's satisfaction the circumstances giving rise to EPA's
issuance of the relevant Work Takeover Notice, EPA may at any time thereafter
assume the performance of all or any portion(s) of the Work as EPA deems
necessary ("Work Takeover"). EPA will notify Respondents in writing (which
writing may be electronic) if EPA determines that implementation of a Work
Takeover is warranted under this ¶ 68.b. Funding of Work Takeover costs is
addressed under ¶ 92 (Access to Financial Assurance).
c.
Respondents may invoke the procedures set forth in ¶ 47 (Formal Dispute
Resolution) to dispute EPA's implementation of a Work Takeover under ¶ 68.b.
However, notwithstanding Respondents' invocation of such dispute resolution
procedures, and during the pendency of any such dispute, EPA may in its sole
discretion commence and continue a Work Takeover under ¶ 68.b until the earlier
of (1) the date that Respondents remedy, to EPA's satisfaction, the circumstances
giving rise to EPA's issuance of the relevant Work Takeover Notice, or (2) the
date that a written decision terminating such Work Takeover is rendered in
accordance with ¶ 47 (Formal Dispute Resolution).
d.
Notwithstanding any other provision of this Settlement, EPA retains all
authority and reserves all rights to take any and all response actions authorized by
law.

21

XVIII. COVENANTS BY RESPONDENTS
69.
Except as provided in Paragraph 73 below, Respondents covenant not to sue and
agree not to assert any claims or causes of action against the United States, or its contractors or
employees, with respect to the Work, Past Response Costs, Future Response Costs, and this
Settlement, including, but not limited to:
a.
any direct or indirect claim for reimbursement from the EPA Hazardous
Substance Superfund through 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 under Sections 107 and 113 of CERCLA, Section 7002(a) of
RCRA, 42 U.S.C. § 6972(a), or state law relating to the Work, Past Response
Costs, Future Response Costs, and this Settlement; or
c.
any claim arising out of response actions at or in connection with the
EWOU, including any claim under the United States Constitution, the
Washington State Constitution, the Tucker Act, 28 U.S.C. § 1491, the Equal
Access to Justice Act, 28 U.S.C. § 2412, or at common law.
70.
These covenants not to sue shall not apply in the event the United States brings a
cause of action or issues an order pursuant to any of the reservations set forth in Section XVII
(Reservations of Rights by EPA), other than in ¶ 67.a (liability for failure to meet a requirement
of the Settlement), 67.d (criminal liability), or 67.e (violations of federal/state law during or after
implementation of the Work), but only to the extent that Respondents' claims arise from the
same response action, response costs, or damages that the United States is seeking pursuant to
the applicable reservation.
71.
Nothing in this Settlement 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).
72.
Respondents reserve, and this Settlement 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
EPA's selection of response actions, or the oversight or approval of Respondents' deliverables or
activities.
73.
Notwithstanding any other provision of this Settlement, this Settlement
Agreement shall not have any effect on claims or causes of action that any Respondent has or
may have pursuant to Section 113(f) of CERCLA, 42 U.S.C. § 9613(f), against the United States
22

or any department or agency thereof, based upon the United States' status as a potentially
responsible party pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), relating to the
Work, Past Response Costs, Future Response Costs, and this Settlement.
XIX. OTHER CLAIMS
74.
By issuance of this Settlement, the United States, except in its status as a
potentially responsible party pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and
EPA assume no liability for injuries or damages to persons or property resulting from any acts or
omissions of Respondents for the Work. The United States or EPA shall not be deemed a party to
any contract entered into by Respondents or their directors, officers, employees, agents,
successors, representatives, assigns, contractors, or consultants in carrying out actions pursuant
to this Settlement.
75.
Except as expressly provided in Section XVI (Covenants by EPA) and XX (Effect
of Settlement/Contribution), nothing in this Settlement constitutes a satisfaction of or release
from any claim or cause of action against Respondents or any person not a party to this
Settlement for any liability such person may have under CERCLA, other statutes, or common
law, including but not limited to any claims of the United States for costs, damages, and interest
under Sections 106 and 107 of CERCLA, 42 U.S.C. §§ 9606 and 9607.
76.
No action or decision by EPA pursuant to this Settlement shall give rise to any
right to judicial review, except as set forth in Section 113(h) of CERCLA, 42 U.S.C. § 9613(h).
XX.

EFFECT OF SETTLEMENT/CONTRIBUTION

77.
Nothing in this Settlement shall be construed to create any rights in, or grant any
cause of action to, any person not a Party to this Settlement. Except as provided in Section XVIII
(Covenants by Respondents), each of the Parties expressly reserves any and all rights (including,
but not limited to, pursuant to Section 113 of CERCLA, 42 U.S.C. § 9613), defenses, claims,
demands, and causes of action that each Party may have with respect to any matter, transaction,
or occurrence relating in any way to the Site against any person not a Party hereto. Nothing in
this Settlement 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 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).
78.
The Parties agree that this Settlement constitutes an administrative settlement
pursuant to which each Respondent has, as of the Effective Date, resolved liability to the United
States within the meaning of Sections 113(f)(2) and 122(h)(4) of CERCLA, 42 U.S.C.
§§ 9613(f)(2) and 9622(h)(4), and is entitled, as of the Effective Date, to protection from
contribution actions or claims as provided by Sections 113(f)(2) and 122(h)(4) of CERCLA, or
as may be otherwise provided by law, for the "matters addressed" in this Settlement. The
"matters addressed" in this Settlement are the Work, Past Response Costs, and Future Response
Costs.
79.
The Parties further agree that this Settlement constitutes an administrative
settlement pursuant to which each Respondent has, as of the Effective Date, resolved liability to
23

the United States within the meaning of Section 113(f)(3)(B) of CERCLA, 42 U.S.C.
§ 9613(f)(3)(B).
80.
Each Respondent shall, with respect to any suit or claim brought by it for matters
related to this Settlement, notify EPA in writing no later than 60 days prior to the initiation of
such suit or claim. Each Respondent also shall, with respect to any suit or claim brought against
it for matters related to this Settlement, notify EPA in writing within 10 days after service of the
complaint or claim upon it. In addition, each Respondent shall notify EPA 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 Settlement.
81.
In any subsequent administrative or judicial proceeding initiated by EPA, or by
the United States on behalf of EPA, for injunctive relief, recovery of response costs, or other
relief relating to the EWOU, Respondents shall not assert, and may not maintain, any defense or
claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion,
claim-splitting, or other defenses based upon any contention that the claims raised in the
subsequent proceeding were or should have been brought in the instant case; provided, however,
that nothing in this Paragraph affects the enforceability of the covenant by EPA set forth in
Section XVI (Covenants by EPA).
82.
Effective upon signature of this Settlement by a Respondent, such Respondent
agrees that the time period commencing on the date of its signature and ending on the date EPA
receives from such Respondent the payment(s) required by ¶ 41 (Payment for Past Response
Costs) and, if any, Section XV (Stipulated Penalties) shall not be included in computing the
running of any statute of limitations potentially applicable to any action brought by the United
States related to the "matters addressed" as defined in ¶ 78 and that, in any action brought by the
United States related to the "matters addressed," such Respondent will not assert, and may not
maintain, any defense or claim based upon principles of statute of limitations, waiver, laches,
estoppel, or other defense based on the passage of time during such period. If EPA gives notice
to Respondents that it will not make this Settlement effective, the statute of limitations shall
begin to run again commencing ninety days after the date such notice is sent by EPA.
XXI. INDEMNIFICATION
83.
The United States does not assume any liability by entering into this Settlement or
by virtue of any designation of Respondents as EPA's authorized representatives under Section
104(e) of CERCLA, 42 U.S.C. § 9604(e), and 40 C.F.R. 300.400(d)(3). To the extent permitted
by law, Respondents shall indemnify, save, and hold harmless the United States, its officials,
agents, employees, contractors, subcontractors, employees, and representatives for or from any
and all claims or causes of action arising from, or on account of, negligent or other wrongful acts
or omissions of Respondents, their officers, directors, employees, agents, contractors, or
subcontractors, and any persons acting on Respondents' behalf or under their control, in carrying
out activities pursuant to this Settlement. Further, Respondents agree to pay the United States all
costs it incurs, including, but not limited to attorneys' fees and other expenses of litigation and
settlement arising from, or on account of, claims made against the United States based on
negligent or other wrongful acts or omissions of Respondents, their officers, directors,
employees, agents, contractors, subcontractors, and any persons acting on their behalf or under

24

their control, in carrying out activities pursuant to this Settlement. The United States shall not be
held out as a party to any contract entered into, by, or on behalf of Respondents in carrying out
activities pursuant to this Settlement. Neither Respondents nor any such contractor shall be
considered an agent of the United States.
84.
The United States shall give Respondents notice of any claim for which the
United States plans to seek indemnification pursuant to this Section and shall consult with
Respondents prior to settling such claim.
85.
Respondents covenant not to sue and agree not to assert any claims or causes of
action against the United States except in its status as a potentially responsible party pursuant to
Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), for damages or reimbursement or for set-off of
any payments made, or to be made, to the United States, arising from or on account of any
contract, agreement, or arrangement between any one or more of Respondents and any person for
performance of Work on or relating to the EWOU, including, but not limited to, claims on
account of construction delays. In addition, Respondents shall indemnify and hold harmless the
United States except in its status as a potentially responsible party pursuant to Section 107(a) of
CERCLA, 42 U.S.C. § 9607(a), with respect to any and all claims for damages or reimbursement
arising from or on account of, any contract, agreement, or arrangement between any one or more
of Respondents and any person for performance of Work on or relating to the EWOU, including,
but not limited to, claims on account of construction delays.
XXII. INSURANCE
86.
No later than 30 days before commencing any on-site Work, Respondents shall
secure, and shall maintain until the first anniversary after issuance of Notice of Work
Completion pursuant to Paragraph 5.17 of the SOW, commercial general liability insurance with
limits of liability of $1 million per occurrence, and automobile insurance with limits of liability
of $1 million per accident, and umbrella liability insurance with limits of liability of $5 million
in excess of the required commercial general liability and automobile liability limits, naming
EPA as an additional insured with respect to all liability arising out of the activities performed by
or on behalf of Respondents pursuant to this Settlement. In addition, for the duration of the
Settlement, Respondents shall provide EPA with certificates of such insurance and a copy of
each insurance policy. Respondents shall resubmit such certificates and copies of policies each
year on the anniversary of the Effective Date. In addition, for the duration of the Settlement,
Respondents shall satisfy, or shall ensure that their contractors or subcontractors satisfy, all
applicable laws and regulations regarding the provision of worker's compensation insurance for
all persons performing the Work on behalf of Respondents in furtherance of this Settlement. If
Respondents demonstrate by evidence satisfactory to EPA that any contractor or subcontractor
maintains insurance equivalent to that described above, or insurance covering some or all of the
same risks but in a lesser amount, Respondents need provide only that portion of the insurance
described above that is not maintained by the contractor or subcontractor. Respondents shall
ensure that all submittals to EPA under this Paragraph identify the EWOU, Harbor Island
Superfund Site, Seattle, Washington, and the EPA docket number for this action.

25

XXIII. FINANCIAL ASSURANCE
87.
In order to ensure the completion of the Work, Respondents shall secure financial
assurance, initially in the amount of $20,000,000 ("Estimated Cost of the Work"), for the benefit
of EPA. The financial assurance must be one or more of the mechanisms listed below, in a form
substantially identical to the relevant sample documents available from EPA or under the
"Financial Assurance - Settlements" category on the Cleanup Enforcement Model Language and
Sample Documents Database at https://cfpub.epa.gov/compliance/models/, and satisfactory to
EPA. Respondents may use multiple mechanisms if they are limited to surety bonds guaranteeing
payment, letters of credit, trust funds, and/or insurance policies.
a.
A surety bond guaranteeing payment and/or performance of the Work that
is issued by a surety company among those listed as acceptable sureties on federal
bonds as set forth in Circular 570 of the U.S. Department of the Treasury;
b.
An irrevocable letter of credit, payable to or at the direction of EPA, that is
issued by an entity that has the authority to issue letters of credit and whose letterof-credit operations are regulated and examined by a federal or state agency;
c.
A trust fund established for the benefit of EPA that is administered by a
trustee that has the authority to act as a trustee and whose trust operations are
regulated and examined by a federal or state agency;
d.
A policy of insurance that provides EPA with acceptable rights as a
beneficiary thereof and that is issued by an insurance carrier that has the authority
to issue insurance policies in the applicable jurisdiction(s) and whose insurance
operations are regulated and examined by a federal or state agency;
e.
A demonstration by a Respondent that it meets the financial test criteria of
¶ 889, accompanied by a standby funding commitment, which obligates the
affected Respondent to pay funds to or at the direction of EPA, up to the amount
financially assured through the use of this demonstration in the event of a Work
Takeover; or
f.
A guarantee to fund or perform the Work executed in favor of EPA by a
company: (1) that is a direct or indirect parent company of a Respondent or has a
"substantial business relationship" (as defined in 40 C.F.R. § 264.141(h)) with a
Respondent; and (2) can demonstrate to EPA's satisfaction that it meets the
financial test criteria of ¶ 88; or
g.
A demonstration by one or more local government Respondent(s) that it
meets the relevant test criteria of ¶ 90.
88.
Respondents seeking to provide financial assurance by means of a demonstration
or guarantee under ¶ 87.e or ¶ 87.f, must, within 30 days of the Effective Date:
a.

Demonstrate that:

26

(1)

(2)

The affected Respondent or guarantor has:
i.

Two of the following three ratios: a ratio of total liabilities
to net worth less than 2.0; a ratio of the sum of net income
plus depreciation, depletion, and amortization to total
liabilities greater than 0.1; and a ratio of current assets to
current liabilities greater than 1.5; and

ii.

Net working capital and tangible net worth each at least six
times the sum of the Estimated Cost of the Work and the
amounts, if any, of other federal, state, or tribal
environmental obligations financially assured through the
use of a financial test or guarantee; and

iii.

Tangible net worth of at least $10 million; and

iv.

Assets located in the United States amounting to at least
90 percent of total assets or at least six times the sum of the
Estimated Cost of the Work and the amounts, if any, of
other federal, state, or tribal environmental obligations
financially assured through the use of a financial test or
guarantee; or

The affected Respondent or guarantor has:
i.

A current rating for its senior unsecured debt of AAA, AA,
A, or BBB as issued by Standard and Poor's or Aaa, Aa, A
or Baa as issued by Moody's; and

ii.

Tangible net worth at least six times the sum of the
Estimated Cost of the Work and the amounts, if any, of
other federal, state, or tribal environmental obligations
financially assured through the use of a financial test or
guarantee; and

iii.

Tangible net worth of at least $10 million; and

iv.

Assets located in the United States amounting to at least
90 percent of total assets or at least six times the sum of the
Estimated Cost of the Work and the amounts, if any, of
other federal, state, or tribal environmental obligations
financially assured through the use of a financial test or
guarantee; and

b.
Submit to EPA for the affected Respondent or guarantor: (1) a copy of an
independent certified public accountant's report of the entity's financial
statements for the latest completed fiscal year, which must not express an adverse
opinion or disclaimer of opinion; and (2) a letter from its chief financial officer

27

and a report from an independent certified public accountant substantially
identical to the sample letter and reports available from EPA or under the
"Financial Assurance - Settlements" subject list category on the Cleanup
Enforcement Model Language and Sample Documents Database at
https://cfpub.epa.gov/compliance/models/.
89.
Respondents providing financial assurance by means of a demonstration or
guarantee under ¶ 87.e or ¶ 87.f must also:
a.
Annually resubmit the documents described in ¶ 88.88.b within 90 days
after the close of the affected Respondent's or guarantor's fiscal year;
b.
Notify EPA within 30 days after the affected Respondent or guarantor
determines that it no longer satisfies the relevant financial test criteria and
requirements set forth in this Section; and
c.
Provide to EPA, within 30 days of EPA's request, reports of the financial
condition of the affected Respondent or guarantor in addition to those specified in
¶ 888.88.b; EPA may make such a request at any time based on a belief that the
affected Respondent or guarantor may no longer meet the financial test
requirements of this Section.
90.
A local government Settling Work Defendant seeking to provide financial
assurance by means of a demonstration under ¶ 87.g must, within 45 days after the Effective
Date:
a.

Demonstrate that:

(1)
The local government Settling Work Defendant providing the
demonstration is a local government unit (for example a United States city or
county).
(2)
if the local government Settling Work Defendant providing the
demonstration has outstanding, rated, general obligation bonds that are not
secured by insurance, a letter of credit, or other collateral or guarantee, it must
have a current rating of Aaa, Aa, A, or Baa, as issued by Moody's, or AAA, AA,
A, or BBB, as issued by Standard and Poor's on all such bonds; or
(3)
each of the following financial ratios based on that local
government Settling Work Defendant's most recent audited annual financial
statement: a ratio of cash plus marketable securities to total expenditures greater
than or equal to 0.05; and a ratio of annual debt service to total expenditures less
than or equal to 0.20.
b.
The local government Settling Work Defendant providing the
demonstration must prepare its financial statements in conformity with Generally
Accepted Accounting Principles for governments and have its financial

28

statements audited by an independent certified public accountant (or the
Washington State Auditor).
c.
The local government Settling Work Defendant providing the
demonstration must not (1) be currently in default on any outstanding general
obligation bonds; (2) must not have any outstanding general obligation bonds
rated lower than Baa as issued by Moody's or BBB as issued by Standard and
Poor's; (3) must not have operated at a deficit equal to five percent or more of
total annual revenue in each of the past two fiscal years; and (4) must not have
received an adverse opinion, disclaimer of opinion, or other qualified opinion
from the independent certified public accountant (or the Washington State
Auditor) auditing its financial statement as required under ¶ 90.b (except for
qualifications that are immaterial or deemed insufficient to warrant disallowance
of use of the test by the EPA).
d.
The following terms used in this section are defined as follows:(1) Deficit
equals total annual revenues, minus total annual expenditures, measured on a
government-wide basis; (2) Total annual revenues includes all revenues
recognized in a fiscal year under applicable accounting principles, from all taxes,
fees, charges, and other sources of income, including all utility gross revenues,
plus any reserves or fund balance applied or used in that year, but does not
include the proceeds from borrowing for capital purposes or revenues realized
from asset sales; (3) Total annual expenditures includes all expenditures made
during a fiscal year, excluding capital outlays and excluding funds applied to debt
repayment and costs of debt issuance; (4) Cash plus marketable securities is all
the cash plus marketable securities held by the local government Settling Work
Defendant on the last day of a fiscal year, excluding cash and marketable
securities designated to satisfy past obligations such as pensions or held by a
trustee on behalf of the local government Settling Work Defendant; and (5) Debt
service is the amount of principal and interest due on a debt obligation in a given
time period, typically the current year.
e.
demonstration must place a reference to the estimated cost of the Work
assured through the financial test into its next annual comprehensive financial
report ("ACFR") after the Effective Date.
f.
The amount that can be financially assured by this financial test
mechanism by a local government Settling Work Defendant is determined as
follows:
(1)
If the local government Settling Work Defendant does not assure
other environmental obligations through a financial test, the estimated cost of the
Work may equal up to 43 percent of the local government Settling Work
Defendant's total annual revenue.
(2)
If the local government Settling Work Defendant assures any other
environmental obligations through a financial test, it must add those costs to the

29

estimated cost of the Work it seeks to assure under this Paragraph. The total that
may be assured must not exceed 43 percent of the local government Settling
Work Defendant's total annual revenue.
g.
A local government Settling Work Defendant providing the demonstration
under this section must provide the following documents within 45 days of the
Effective Date. These documents must also be resubmitted annually, within 270
days following the close of the local government Settling Work Defendant's fiscal
year, until the financial assurance requirements are released, or an alternative
instrument is accepted by EPA.
(1)
A letter signed by the local government Settling Work Defendant's
Director of Finance or other official serving as chief financial or operating
officer that: lists all the current cost estimates covered by a financial test,
as described in ¶ 90.f of this section; provides evidence and certifies that
the local government Settling Work Defendant meets the conditions of ¶
90.a(1) and either ¶ 90.a(2) or ¶ 90.a(3) of this ¶ 90; and certifies that the
local government Settling Work Defendant is in compliance with all
conditions of this section;
(2)
The local government Settling Work Defendant's independently
audited year-end financial statements for the latest fiscal year, including
the unqualified opinion of the auditor who must be an independent,
certified public accountant or an appropriate State agency that conducts
equivalent comprehensive audits;
(3)
A report to the local government Settling Work Defendant from
the local government Settling Work Defendant's independent certified
public accountant ("CPA") or the appropriate State agency based on
performing an agreed upon procedures engagement relative to the
financial ratios required by ¶ 90.a(3), if applicable, and the requirements
of ¶ 90.f(1) or f(2). The CPA or State agency's report should state the
procedures performed and the CPA or State agency's findings. If the
financial ratios under ¶ 90.a(3) are not applicable, then the foregoing
requirement may be satisfied by a certificate provided by the local
government Settling Work Defendant's Chief Financial or Operating
Officer, in reliance upon audited financial statements, attesting that the
requirements of ¶ 90.f(1) or ¶ 90.f(2), as applicable, have been satisfied;
and
(4)
A copy of the annual comprehensive financial report used to
comply with ¶ 90.e of this section or certification that the requirements of
General Accounting Standards Board Statement 18 have been met.
91.
Respondents shall diligently monitor the adequacy of the financial assurance. If
any Respondent becomes aware of any information indicating that the financial assurance
provided under this Section is inadequate or otherwise no longer satisfies the requirements of this

30

Section, such Respondent shall notify EPA of such information within seven days. If EPA
determines that the financial assurance provided under this Section is inadequate or otherwise no
longer satisfies the requirements of this Section, EPA will notify the affected Respondent of such
determination. Respondents shall, within 30 days after notifying EPA or receiving notice from
EPA under this Paragraph, secure and submit to EPA for approval a proposal for a revised or
alternative financial assurance mechanism that satisfies the requirements of this Section. EPA
may extend this deadline for such time as is reasonably necessary for the affected Respondent, in
the exercise of due diligence, to secure and submit to EPA a proposal for a revised or alternative
financial assurance mechanism, not to exceed 60 days. Respondents shall follow the procedures
of ¶ 93 (Modification of Amount, Form, or Terms of Financial Assurance) in seeking approval
of, and submitting documentation for, the revised or alternative financial assurance mechanism.
Respondents' inability to secure financial assurance in accordance with this Section does not
excuse performance of any other obligation under this Settlement.
92.

Access to Financial Assurance
a.
If EPA issues a notice of implementation of a Work Takeover under
¶ 68.b, then, in accordance with any applicable financial assurance mechanism
and/or related standby funding commitment, EPA is entitled to: (1) the
performance of the Work; and/or (2) require that any funds guaranteed be paid in
accordance with ¶ 92.d.
b.
If EPA is notified by the issuer of a financial assurance mechanism that it
intends to cancel such mechanism, and the affected Respondent fails to provide an
alternative financial assurance mechanism in accordance with this Section at least
30 days prior to the cancellation date, the funds guaranteed under such
mechanism must be paid prior to cancellation in accordance with ¶ 92.d.
c.
If, upon issuance of a notice of implementation of a Work Takeover under
¶ 68.b, either: (1) EPA is unable for any reason to promptly secure the resources
guaranteed under any applicable financial assurance mechanism [and/or related
standby funding commitment], whether in cash or in kind, to continue and
complete the Work; or (2) the financial assurance is a demonstration or guarantee
under ¶ 87.e or ¶ 87.f or ¶ 87.g, then EPA is entitled to demand an amount, as
determined by EPA, sufficient to cover the cost of the remaining Work to be
performed. Respondents shall, within 30 days of such demand, pay the amount
demanded as directed by EPA. EPA will accept payment by each of the
Respondents of a share of such costs, the total of which will be 100% of the
demanded costs. In the event there is a shortfall in the total payment demanded by
EPA, all three Respondents will be deemed out of compliance with the payment
requirement for remaining Work. Payments shall be made within 30 days of the
demand except for amounts exceeding the current budget authority of the
responsible departments for the Respondents. For amounts exceeding current
budget authority, Respondents shall immediately initiate the steps necessary to
obtain sufficient budget authority. Payment of the remaining amounts shall be
made no later than 30 days after the necessary budget authority has been enacted

31

and in any event within 120 days of the demand unless an alternative payment
schedule is approved by EPA.
d.
Any amounts required to be paid under this ¶ 92 shall be, as directed by
EPA: (i) paid to EPA in order to facilitate the completion of the Work by EPA or
by another person; or (ii) deposited into an interest-bearing account, established at
a duly chartered bank or trust company that is insured by the FDIC, in order to
facilitate the completion of the Work by another person. If payment is made to
EPA, EPA may deposit the payment into the EPA Hazardous Substance
Superfund or into the Harbor Island Special Account within the EPA Hazardous
Substance Superfund to be retained and used to conduct or finance response
actions at or in connection with the Site, or to be transferred by EPA to the EPA
Hazardous Substance Superfund.
e.
All EPA Work Takeover costs not paid under this ¶ 92 must be
reimbursed as Future Response Costs under Section XII (Payments for Response
Costs).
93.
Modification of Amount, Form, or Terms of Financial Assurance.
Respondents may submit, on any anniversary of the Effective Date or at any other time agreed to
by the Parties, a request to reduce the amount, or change the form or terms, of the financial
assurance mechanism. Any such request must be submitted to EPA in accordance with ¶ 91 and
must include an estimate of the cost of the remaining Work, an explanation of the bases for the
cost calculation, and a description of the proposed changes, if any, to the form or terms of the
financial assurance. EPA will notify Respondents of its decision to approve or disapprove a
requested reduction or change pursuant to this Paragraph. Respondents may reduce the amount
of the financial assurance mechanism only in accordance with: (a) EPA's approval; or (b) if there
is a dispute, the agreement or written decision resolving such dispute under Section XIII
(Dispute Resolution). Respondents may change the form or terms of the financial assurance
mechanism only in accordance with EPA's approval. Any decision made by EPA on a request
submitted under this Paragraph to change the form or terms of a financial assurance mechanism
shall not be subject to challenge by Respondents pursuant to the dispute resolution provisions of
this Settlement or in any other forum. Within 30 days after receipt of EPA's approval of, or the
agreement or decision resolving a dispute relating to, the requested modifications pursuant to this
Paragraph, Respondents shall submit to EPA documentation of the reduced, revised, or
alternative financial assurance mechanism in accordance with ¶ 91.
94.
Release, Cancellation, or Discontinuation of Financial Assurance.
Respondents may release, cancel, or discontinue any financial assurance provided under this
Section only: (a) if EPA issues a Notice of Work Completion under Paragraph 5.17 of the SOW;
(b) in accordance with EPA's approval of such release, cancellation, or discontinuation; or (c) if
there is a dispute regarding the release, cancellation, or discontinuance of any financial
assurance, in accordance with the agreement or final decision resolving such dispute under
Section XIII (Dispute Resolution).

32

XXIV. INTEGRATION/APPENDICES
95.
This Settlement and its appendices constitute the final, complete, and exclusive
agreement and understanding among the Parties with respect to the settlement embodied in this
Settlement. The parties acknowledge that there are no representations, agreements, or
understandings relating to the settlement other than those expressly contained in this Settlement.
The following appendices are attached to and incorporated into this Settlement:
a.

Appendix A is the description and/or map of the EWOU.

b.

Appendix B is the SOW.
XXV. MODIFICATION

96.
The OSC/RPM may modify any plan, schedule, or SOW in order to carry out the
RD, in writing or by oral direction. Any oral modification will be memorialized in writing by
EPA promptly but shall have as its effective date the date of the OSC/RPM's oral direction. Any
other requirements of this Settlement may be modified in writing by mutual agreement of the
parties.
97.
If Respondents seek permission to deviate from any approved work plan,
schedule, or SOW, Respondents' Project Coordinator shall submit a written request to EPA for
approval outlining the proposed modification and its basis. Respondents may not proceed with
the requested deviation until receiving oral or written approval from the OSC/RPM pursuant to ¶
96.
98.
No informal advice, guidance, suggestion, or comment by the OSC/RPM or other
EPA representatives regarding any deliverable submitted by Respondents shall relieve
Respondents of their obligation to obtain any formal approval required by this Settlement, or to
comply with all requirements of this Settlement, unless it is formally modified.
XXVI. EFFECTIVE DATE
99.
This Settlement shall be effective on the day the Settlement is signed by the
Remedial Branch Manager for Region 10 of EPA.

33

IT IS SO AGREED AND ORDERED;

U.S. ENVIRONMENTAL PROTECTION AGENCY:

_____________
Date

________________________________________________
Kira Lynch, Manager
Remedial Cleanup Branch
Superfund and Emergency Management Division
Region 10

34

Signature Page for Settlement regarding the East Waterway Operable Unit of the Harbor Island
Superfund Site

FOR: PORT of SEATTLE

_____________
Date

___________________________________
Stephen P. Metruck
Executive Director

35

Signature Page for Settlement regarding the East Waterway Operable Unit of the Harbor Island
Superfund Site

FOR: CITY of SEATTLE

_____________
Date

___________________________________
Ann Davison
Seattle City Attorney

36

Signature Page for Settlement regarding the East Waterway Operable Unit of the Harbor Island
Superfund Site

FOR: KING COUNTY

_____________
Date

___________________________________
Shannon Braddock
King County Executive

37

Appendix A to Administrative Settlement Agreement and Order on Consent for
Remedial Design in CERCLA Docket No. 10-2025-0125

67

STATEMENT OF WORK
Remedial Design
East Waterway Operable Unit
HARBOR ISLAND SUPERFUND SITE
Seattle, King County, State of Washington
EPA Region 10

Appendix B to the Administrative Settlement Agreement and Order on Consent for Remedial
Design in CERCLA Docket No. 10-2025-0125

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TABLE OF CONTENTS
1.
2
3
4
5
6
7
8
9
10

INTRODUCTION .......................................................................................................... 1
COMMUNITY INVOLVEMENT ................................................................................ 2
COORDINATION AND SUPERVISION .................................................................... 3
SEAFOOD CONSUMPTION INSTITUTIONAL CONTROLS ............................... 4
REMEDIAL DESIGN .................................................................................................... 4
REPORTING ................................................................................................................ 11
DELIVERABLES ......................................................................................................... 11
SCHEDULES ................................................................................................................ 16
STATE AND TRIBAL PARTICIPATION................................................................ 17
REFERENCES ............................................................................................................ 17

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1.

INTRODUCTION

1.1

Purpose of the SOW. This Statement of Work (SOW) sets forth the procedures and
requirements for implementing the Design Work at the East Waterway Operable Unit
(EWOU) of the Harbor Island Superfund Site. This (SOW) sets forth the procedures and
requirements for implementing the Administrative Settlement Agreement and Order on
Consent for Remedial Design (Settlement) of the EWOU. (CERCLA Docket No. 102025-0125).

1.2

The Scope of the Remedy includes the actions described in Part 1 of the EWOU Interim
Record of Decision (IROD), including the removal of contaminated sediment from a
majority of the waterway, along with smaller areas of capping, in-situ treatment, and
enhanced or monitored natural recovery. EPA did not select cleanup levels in the EWOU
IROD. Institutional controls in the form of fish advisories and education, and waterway
and land use restrictions will be implemented to further limit exposure to contamination
to protect the interim remedy.

1.3

The major components of the interim remedy include the following.
(a)

(b)

Cleanup of approximately 121 acres of contaminated sediment consisting of:
i.

Dredging 99 acres in open water portions of the EWOU. Approximately
940,000 cubic yards of sediment would be dredged and disposed off-site
in accordance with regulations

ii.

Capping 7 acres

iii.

In situ, (in place on-site) treatment in 12 acres under docks and piers using
activated carbon or other organic contaminant-sequestering agents

iv.

Enhanced natural recovery in 3 acres under the West Seattle
Bridge/Spokane Street Bridge corridor where there is limited access for
barge-mounted dredges

v.

Monitored natural recovery in 36 acres where there will be no dredging,
capping or ENR

vi.

Placement of a residual management layer in all dredged and adjacent
areas where dredge residuals may settle

vii.

Institutional controls to further limit exposures and protect the integrity of
the remedy

Construction monitoring and confirmation sampling will be conducted during
construction implementation to ensure that the interim remedy is built according
to specifications. Short term monitoring will be conducted after construction to

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monitor progress and effectiveness of the interim remedial action and of ongoing
source control actions.
(c)

A source control sufficiency assessment for lateral loading will be conducted and
finalized prior to proceeding with remedial action. These data will provide
information needed to develop cleanup levels.

1.4

EPA anticipates developing and selecting cleanup levels in a future decision document
based on data collected during and after construction of the interim action.

1.5

The terms used in this SOW that are defined in CERCLA, in regulations promulgated
under CERCLA, or in the Settlement, have the meanings assigned to them in CERCLA,
in such regulations, or in the Settlement, except that the term "Paragraph" or "¶" means a
paragraph of the SOW, and the term "Section" means a section of the SOW, unless
otherwise stated.
2. COMMUNITY INVOLVEMENT

2.1

Community Involvement Responsibilities
(a)

EPA has the lead responsibility for developing and implementing community
involvement activities at the EWOU. Previously during the SRI/FS phase and
during development of the proposed plan, EPA drafted a Community Involvement
Plan (CIP) for the Site. Pursuant to 40 C.F.R. § 300.435(c), EPA shall review the
Draft CIP and determine whether it should be revised and finalized to describe
further public involvement activities during the Design Work that are not already
addressed or provided for in the existing Draft CIP. If requested, EPA can hold
public information sessions on different stages of the design work. Respondents
will provide supporting information for EPA's community involvement work,
including but not limited to high-definition photographs, graphics and
presentation support.

(b)

If requested by EPA, Respondents shall participate in community involvement
activities, including participation in (1) the preparation of information regarding
the Design Work for dissemination to the public, with consideration given to
including mass media and/or Internet notification, and (2) public meetings that
may be held or sponsored by EPA to explain activities at or relating to the
EWOU. Respondents' support of EPA's community involvement activities may
include providing online access to initial submissions and updates of deliverables
to (1) any Community Advisory Groups, (2) any Technical Assistance Grant
recipients and their advisors, and (3) other entities to provide them with a
reasonable opportunity for review and comment. EPA may describe in the draft
and final CIP, Respondents' responsibilities for community involvement
activities. All community involvement activities conducted by Respondents at
EPA's request are subject to EPA's oversight. Upon EPA's request, Respondents
shall establish a community information repository at or near the EWOU to house
one copy of the EWOU administrative record.

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(c)

Respondents' CI Coordinator. If requested by EPA, Respondents shall, within 15
days, designate and notify EPA of Respondents' Community Involvement
Coordinator (Respondents' CI Coordinator). Respondents may hire a contractor
for this purpose. Respondents' notice must include the name, title, and
qualifications of the Respondents' CI Coordinator. Respondents' CI Coordinator
is responsible for providing support regarding EPA's community involvement
activities, including coordinating with EPA's CI Coordinator regarding responses
to the public's inquiries about the EWOU.
3. COORDINATION AND SUPERVISION

3.1

Selection of Project Coordinators and Supervising Contractor
(a)

Respondents' Project Coordinator and Supervising Contractor each: (i) must have
sufficient technical expertise to carry out their responsibilities; (ii) may not be
attorneys representing any Respondent in this matter; (iii) may not be the same
person; and (iv) may not have an unwaivable conflict of interest, regarding the
project. The Supervising Contractor must have a quality assurance system that
complies with the most recent version of Quality Systems for Environmental Data
and Technology Programs -- Requirements with Guidance for Use (American
National Standard), ANSI/ASQC E4 (Feb. 2014)

(b)

Respondents shall notify EPA, within 14 days after the Effective Date, of the
name, title, contact information, and qualifications of their proposed Project
Coordinator and Supervising Contractor.

(c)

EPA shall issue a notice of disapproval and/or authorization to proceed regarding
any proposed Project Coordinator and Supervising Contractor, as applicable. Any
EPA disapproval must be based on criteria under ¶ 3.1(a).

(d)

Respondents shall follow the procedures of ¶ 3.1.(a) through (c) to: (1) to select
an alternate Project Coordinator or Supervising Contractor, as applicable, if EPA
issues a notice of disapproval; or (2) to change their Project Coordinator or
Supervising Contractor.

(e)

Respondents may assign other representatives, including other contractors, to
assist in coordinating the Work.

3.2

EPA has designated Ravi Sanga as its Remedial Project Manager (RPM). EPA may, with
notice to Respondents, designate an alternate RPM. EPA may designate other
representatives including contractors or consultants to oversee the Work.

3.3

The State of Washington (State) shall designate and notify the Parties of its Project
Coordinator. The State may designate other representatives including contractors or
consultants to oversee the Work.

3.4

Project Coordinator and RPM Responsibilities

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(a)

Respondents' Project Coordinator shall communicate with the RPM at least
monthly.

(b)

The RPM has the authorities described in the NCP, 40 C.F.R. § 300.120.

(c)

The State's Project Coordinator may participate in any meeting or inspection in
which the RPM participates. Respondents shall notify the State reasonably in
advance of any such meetings or inspections.
4. SEAFOOD CONSUMPTION INSTITUTIONAL CONTROLS

Respondents shall cover the costs to expand implementation of US EPA's Institutional Control
Implementation and Assurance Plan (ICIAP) for Seafood Consumption at the Lower Duwamish
Waterway Superfund Site outreach activities to include applicable areas of the EWOU not
currently covered (e.g., technical and educational materials regarding EWOU) through the date
of EPA approval of the final (100%) Remedial Design for EWOU. Implementation of this plan is
being lead through a cooperative agreement between EPA and Seattle - King County Public
Health. Expansion of the LDW Seafood IC program to include areas beyond the EW Spokane
Street Bridge will be per EPA direction.
5. REMEDIAL DESIGN
The remedial design is generally defined as those activities to be undertaken to develop final
construction plans and specifications, general provisions, special requirements, and all other
technical documentation necessary to solicit bids for construction of the remedial action.
The remedial design also includes identification of the required documentation to be
provided by the construction contractor, subject to approval by EPA during the construction
phase, and annotated outlines, conceptual plans, or initial drafts of certain documents to be
finalized after construction.
Respondents shall design the selected remedy in the IROD as it applies to the EWOU, except
the Early Action Areas (Slip 36 and Terminal 25 South).
Remedial Design will progress from the preliminary design phase (30%) through 60%, 90%, and
final design (100%), with deliverables as identified below and in the Remedial Design Work
Plan.
5.1

RD Workplan. Respondents shall submit a RD Workplan for comment and approval.
The RD Workplan must include:
(a)

Plans for implementing all RD activities identified in this SOW to develop the
RD;

(b)

A description of the overall management strategy for performing the RD,
including a proposal for phasing of design.

(c)

A description of the proposed general approach to contracting, construction,
maintenance, and confirmational monitoring and water quality monitoring and if

4

multiple design packages and/or construction contracts will be used to implement
the IROD remedy.
(d)

A description of the responsibility and authority of all organizations and key
personnel involved with the development of the RD;

(e)

Discussion of existing data

(f)

A discussion of additional challenges, data needs, investigations or retesting
necessary to initiate or complete the remedial design (e.g., how to characterize
and remediate areas with structural or access restrictions);

(g)

A Pre-Design Investigations (PDI) Work Plan, as specified in ¶ 5.3(a).

(h)

Description of how source control efforts and recontamination potential will be
evaluated to complete a Source Control Sufficiency Assessment;

(i)

Description of proposed pre-design investigation approach and sampling to
establish baseline conditions;

(j)

Description of general approach to support development of site-specific
background.

5.2.

Respondents shall communicate regularly with EPA to discuss design issues as
necessary, as directed or determined by EPA.

5.3.

Pre-Design Investigation. The purpose of the Pre-Design Investigation (PDI) is to
address data needs for completion of design by conducting field investigations.
(a)

(b)

5.4

PDI Work Plan. Respondents shall submit a PDI Work Plan (PDIWP) for EPA
comment and approval. The PDIWP must include:
i.

An evaluation and summary of existing data and description of data gaps;

ii.

A sampling plan including media to be sampled, contaminants or
parameters for which sampling will be conducted, location (areal extent
and depths), and number of samples;

iii.

Cross references to quality assurance/quality control (QA/QC)
requirements set forth in the Quality Assurance Project Plan (QAPP) as
described in ¶ 7.7(c), ¶ 7.7(d).

EPA may require Respondents to supplement the PDIER and/or to perform
additional pre-design studies. Should additional data be needed to support the
design, a PDI QAPP addendum shall be submitted.

PDI Evaluation Reports (PDIER) Phase I and II. This report shall include: a summary of
the investigations performed; summary of investigation results; narrative interpretation of

5

data and results, with supporting figures and tables; and identification of any remaining
data gaps needed to support the design.
5.5

5.6

5.7

Sitewide Baseline Conditions Plan. The purpose of the Sitewide Baseline Conditions
Plan (SWBCP) is to establish baseline information regarding the contaminants of concern
in affected media at the EWOU before implementation of the RA. This will provide a
basis for comparison with future monitoring events to assess performance standards. The
SWBCP must include:
(a)

Description of data collection approach for baseline and associated short-term
monitoring for evaluating progress and effectiveness of the interim remedy;

(b)

Description of the environmental media to be monitored;

(c)

Description of the data collection parameters, including existing and proposed
monitoring devices and locations, schedule of baseline monitoring event,
analytical parameters to be monitored, and analytical methods employed;

(d)

Description of how baseline data will be analyzed, interpreted, and reported,
including how baseline monitoring will be compared with short-term monitoring
results to evaluate interim remedy effectiveness; and

(e)

Cross references to quality assurance/quality control (QA/QC) requirements set
forth in the Quality Assurance Project Plan (QAPP) as described in ¶ 7.7(c), ¶
7.7(d).

Sitewide Baseline Conditions Data Report. Respondents shall submit a Sitewide Baseline
Conditions Data Report (SWBDR) for EPA comment and approval. This report must
include:
(a)

Summary of the investigations performed;

(b)

Summary of investigation results;

(c)

Summary of validated data (i.e., tables and graphics);

(d)

Data validation reports and laboratory data reports;

(e)

Narrative interpretation of data and results;

(f)

Results of statistical and modeling analyses; and

(g)

Photographs documenting the work conducted.

Source Control Sufficiency Assessment. The purpose of The Source Control
Sufficiency Assessment is to provide EPA the ability to determine if sources of
contaminants to the EW are sufficiently controlled such that in-waterway sediment
cleanup can begin.

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(a)

(b)

The Source Control Sufficiency Assessment shall consider potential impacts
from, and assess data gaps for, a range of potential sources, including but not
limited to upland pathways (direct discharges, groundwater, soil, riverbank, and
overwater). The components of the Source Control Sufficiency Assessment
Report shall include:
i.

Description of the EWOU setting and the upland areas being evaluated
and an overview of the remainder of the report;

ii.

A CSM that describes the geographically relevant upland (direct
discharges, groundwater, soil, riverbank and overwater) sources of
contamination, contaminants of concern and migration pathways into the
EWOU;

iii.

A summary of available information regarding the source control status of
direct discharges, groundwater, soil, riverbank and overwater sources of
COCs into the EWOU that may affect achieving the remedial action
objective;

iv.

An assessment of the degree to which future conditions including flooding
and high flow events may cause recontamination on previously remediated
surfaces, to the extent not already incorporated in the design;

v.

The results of the Source Control Sufficiency Assessment that includes
evaluation of the sufficiency of upland and in-water source controls to
reduce the potential for re-contaminating the selected remedy following
implementation. The assessment will consider the general magnitude of
any potential recontamination effects and discuss implications to the
selected remedy. The discussion will also present the limitations of the
assessment approaches and any remaining data gaps;

vi.

Identify data gaps, if any; and

vii.

Conclusions and Recommendations.

EPA will determine whether sources are sufficiently controlled and may require
Source Control Sufficiency Assessment updates as new data are obtained, and
source control actions are implemented.

5.8

Institutional Controls Implementation and Assurance Plan (ICIAP). An outline of
the contents of the ICIAP will be included in the 60% RD.

5.9

Treatability Study
(a)

If needed (based on approved RDWP or PDIWP), Respondents shall perform a
Treatability Study (TS).

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5.10

(b)

Respondents shall submit a TS Work Plan (TSWP) for EPA comment and
approval. Respondents shall prepare the TSWP in accordance with EPA's Guide
for Conducting Treatability Studies under CERCLA, Final (Oct. 1992), as
supplemented for RD by the Remedial Design/Remedial Action Handbook, EPA
540/R-95/059 (June 1995).

(c)

Following completion of the TS, Respondents shall submit a TS Evaluation
Report for EPA comment and approval.

(d)

EPA may require Respondents to supplement the TS Evaluation Report and/or to
perform additional treatability studies.

Preliminary (30%) RD. Respondents shall submit a Preliminary (30%) RD for EPA's
comment. The Preliminary RD must include:
(a)

A basis of design report providing descriptions of the analyses conducted to select
the design approach, including a summary and detailed justification of design
assumptions, restrictions and objectives to be used in design of the selected
remedy, and at least one example of essential supporting calculations for each
significant or unique design calculation, such as cap thickness or propeller wash
modeling);

(b)

Preliminary drawings and outline of specifications;

(c)

Descriptions of permit requirements, if applicable;

(d)

A description of monitoring and control measures to protect human health and the
environment, such as air monitoring and dust suppression, during the RA;

(e)

A schedule for Remedial Action; and

(f)

Applicable supporting deliverables as described in ¶ 7.7.

5.11 Intermediate (60%) RD. Respondents shall submit the Intermediate (60%) RD for
EPA's comment. The Intermediate RD must: (a) be a continuation and expansion of the
Preliminary RD; (b) address EPA's comments regarding the Preliminary RD; and
(c) include the same elements as are required for the Preliminary (30%) RD.
Additional elements will include an outline of a Construction Quality Assurance Plan
(CQAP); outline of an Institutional Controls Implementation and Assurance Plan; a draft
Community Impacts Mitigation Plan; a draft Biological Assessment; an outline of a
Short-Term Monitoring Plan, including the approach to support development of sitespecific background and for updating upriver loading conditions; and a draft
Compensatory Mitigation Plan, if necessary.
5.12

Pre-Final (90%) RD. Respondents shall submit the Pre-final (90%) RD for EPA's
comment and approval. The Pre-final RD must be a continuation and expansion of the
previous design submittal and must address EPA's comments regarding the Intermediate

8

RD. The Pre-final RD will serve as the approved Final (100%) RD if EPA approves the
Pre-final RD without comments. The Pre-final RD must include:
(a)

A complete set of construction drawings and specifications consistent with EPA's
Superfund Remedial Design and Remedial Action Guidance (OSWER Directive
No. 9355.0-04B) that are: (1) certified by a registered professional engineer;
(2) suitable for procurement; and (3) follow the Construction Specifications
Institute's MasterFormat (or equivalent) and meet other relevant standards for
design of sediment cleanup;

(b)

A survey and engineering drawings showing existing EWOU features, such as
property borders, easements, and EWOU conditions;

(c)

Pre-Final versions of the same elements and deliverables as are required for the
[Preliminary/Intermediate] RD;

(d)

A specification for all necessary construction documentation including but not
limited to photographic, bathymetric surveys documentation of the RA;

(e)

Updates of all supporting deliverables required to accompany the Preliminary
(30%) RD; and

(f)

Engineer's capital cost estimate and estimated construction project schedule.

5.13

Final (100%) RD. Respondents shall submit the Final (100%) RD for EPA ultimate
approval. The Final RD must address EPA's comments on the Pre-final RD and must
include final versions of all Pre-final RD deliverables. The ICIAP and Short-Term
Monitoring Plan will remain as annotated outlines in the Final RD.

5.14

Guidance Documents. Respondents shall use EPA guidance documents as the basis for
development of work plans, quality assurance project plans, sampling plans, water quality
monitoring plans, and other documents. The remedial design and supporting deliverables
shall be consistent with current technical guidance, including but not limited to
Contaminated Sediment Remediation Guidance for Hazardous Waste Sites, 2005;
Guidance for In Situ Subaqueous Capping of Contaminated Sediments, 2012;
Contaminated Sediments Remediation: Remedy Selection for Contaminated Sediments,
2014, and shall meet professional engineering standards for sediment remediation sites or
most recent versions.

5.15

Emergency Response and Reporting
(a)

Emergency Response and Reporting. If any event occurs during performance of
the Work that causes or threatens to cause a release of Waste Material on, at, or
from the EWOU and that either constitutes an emergency situation or that may
present an immediate threat to public health or welfare or the environment,
Respondents shall: (1) immediately take all appropriate action to prevent, abate,
or minimize such release or threat of release; (2) immediately notify the
authorized EPA RPM (as specified in ¶ 3.2 orally); and (3) take such actions in
9

consultation with the authorized EPA officer and in accordance with all
applicable provisions of the Health and Safety Plan, and any other deliverable
approved by EPA under the SOW.
(b)

Release Reporting. Upon the occurrence of any event during performance of the
Work that Respondents are required to report pursuant to Section 103 of
CERCLA, 42 U.S.C. § 9603, or Section 304 of the Emergency Planning and
Community Right-to-know Act (EPCRA), 42 U.S.C. § 11004, Respondents shall
immediately notify the authorized EPA officer orally.

(c)

The "authorized EPA officer" for purposes of immediate oral notifications and
consultations under ¶ 5.15(a) is the EPA RPM, the EPA Emergency Response
Unit, Region 10 (if the EPA RPM is unavailable).

(d)

For any event covered by ¶ 5.15 Respondents shall: (1) within 14 days after the
onset of such event, submit a report to EPA describing the actions or events that
occurred and the measures taken, and to be taken, in response thereto; and
(2) within 30 days after the conclusion of such event, submit a report to EPA
describing all actions taken in response to such event.

(e)

The reporting requirements under ¶ 5.15(a) are in addition to the reporting
required by CERCLA § 103 or EPCRA § 304.

5.16

Off-Site Shipments. Respondents may ship Investigation Derived Waste (IDW) from the
Site to an off-Site facility only if they comply with Section 121(d)(3) of CERCLA,
42 U.S.C. § 9621(d)(3), 40 C.F.R. § 300.440, EPA's Guide to Management of
Investigation Derived Waste, OSWER 9345.3-03FS (Jan. 1992), and any IDW-specific
requirements contained in the IROD. Wastes shipped off-Site to a laboratory for
characterization, and RCRA hazardous wastes that meet the requirements for an
exemption from RCRA under 40 CFR § 261.4(e) shipped off-site for treatability studies,
are not subject to 40 C.F.R. § 300.440.

5.17

Notice of Work Completion. When EPA determines, after EPA's review of the Final
100% RD under ¶ 5.13 (Final (100%) RD), that all Work has been fully performed in
accordance with this Settlement, with the exception of any continuing obligations as
provided in ¶ 5.17 EPA will provide written notice to Respondents. If EPA determines
that any such Work has not been completed in accordance with this Settlement, EPA will
notify Respondents, provide a list of the deficiencies, and require that Respondents
modify the 100% RD in order to correct such deficiencies.
Issuance of the Notice of Work Completion does not affect the following continuing
obligations set forth in the ASAOC: (1) obligations under Sections VIII (Property
Requirements), IX (Access to Information), and X (Record Retention); and (3)
reimbursement of EPA's Future Response Costs under Section XII (Payment of
Response Costs) of the Settlement.

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6. REPORTING
6.1

6.2

Progress Reports. Respondents shall submit progress reports to EPA on a quarterly
basis, or as otherwise requested by EPA, from the date of receipt of EPA's approval of
the RDWP until issuance of Notice of Work Completion pursuant to ¶ 5.17 unless
otherwise directed in writing by EPA's Project Coordinator. The reports must cover all
activities that took place during the prior reporting period, including:
(a)

The actions that have been taken toward achieving compliance with the
Settlement;

(b)

A summary description of sampling, tests, and all other data received or generated
by Respondents;

(c)

A description of all deliverables that Respondents submitted to EPA;

(d)

A description of all activities scheduled for the next six weeks;

(e)

Information regarding percentage of completion, unresolved delays encountered
or anticipated that may affect the future schedule for implementation of the Work,
and a description of efforts made to mitigate those delays or anticipated delays;

(f)

A description of any modifications to the work plans or other schedules that
Respondents have proposed or that have been approved by EPA; and

(g)

A description of all activities undertaken in support of the current version of the
Community Involvement Plan (CIP) during the reporting period and those to be
undertaken in the next six weeks.

Notice of Progress Report Schedule Changes. If the schedule for any activity described
in the Progress Reports, including activities required to be described under ¶ 6.1(a),
changes, Respondents shall notify EPA.
7. DELIVERABLES

7.1

Applicability. Respondents shall submit deliverables for both EPA comment and
approval as specified in the SOW. All deliverables shall follow the required Technical
Specifications of Paragraph 7.4. Paragraph 7.6 (Approval of Deliverables) applies to any
deliverable that is required to be submitted for EPA approval.

7.2

Electronic Deliverables. All deliverables under this SOW must be submitted
electronically unless otherwise specified.

7.3

General Requirements for Deliverables. All deliverables must be submitted by the
deadlines in the RD Schedule, as applicable. Respondents shall submit all deliverables to
EPA in electronic form. Technical specifications for sampling and monitoring data and
spatial data are addressed in ¶ 7.4. All other deliverables shall be submitted to EPA in the
electronic form specified by the EPA Project Coordinator. If any deliverable includes
11

maps, drawings, or other exhibits that are larger than 8.5" by 11", Respondents shall also
provide EPA with paper copies of such exhibits, as requested.
7.4

7.5

Technical Specifications
(a)

Sampling and monitoring data should be submitted in standard regional Electronic
Data Deliverable (EDD) format compatible with Scribe. Other delivery methods
may be allowed if electronic direct submission presents a significant burden or as
technology changes.

(b)

Spatial data, including spatially-referenced data and geospatial data, should be
submitted in accordance with the National Geospatial Deliverable Standard
(www.epa.gov/sites/default/files/2020/10/documents/nationalgeospatialdeliverabl
estandard.pdf); and as projected coordinates in Washington State Plane North
format using North American Datum 1983 (NAD83) or World Geodetic System
1984 (WGS84) as the datum. If applicable, submissions should include the
collection method(s). Unprojected geographic coordinates in decimal degree will
also be included at EPA request but must be documented. Spatial data should be
accompanied by metadata, and such metadata should be compliant with the
Federal Geographic Data Committee (FGDC) Content Standard for Digital
Geospatial Metadata and its EPA profile, the EPA Geospatial Metadata Technical
Specification. An add-on metadata editor for ESRI software, the EPA Metadata
Editor (EME), complies with these FGDC and EPA metadata requirements and is
available at https://www.epa.gov/geospatial/epa-metadata-editor.

(c)

Each file must include an attribute name for each site unit or sub-unit submitted.
Consult https://www.epa.gov/geospatial/geospatial-policies-and-standards for any
further available guidance on attribute identification and naming.

Certification. All deliverables that require compliance with this paragraph must be
signed (or electronically signed) by Respondents' Project Coordinator, or other
responsible official of Respondents, and must contain the following statement:
I certify under penalty of perjury that this document and all attachments were prepared
under my direction or supervision in accordance with a system designed to assure that
qualified personnel properly gather and evaluate the information submitted. Based on my
inquiry of the person or persons who manage the system, or those persons directly
responsible for gathering the information, the information submitted is, to the best of my
knowledge and belief, true, accurate, and complete. I have no personal knowledge that
the information submitted is other than 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.

7.6

Approval of Deliverables
(a)

Initial Submissions

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(b)

7.7

i.

After review of any deliverable that is required to be submitted for EPA
approval under the Settlement or the SOW, EPA shall: (i) approve, in
whole or in part, the submission; (ii) approve the submission upon
specified conditions such as addressing EPA comments; (iii) disapprove,
in whole or in part, the submission; or (iv) any combination of the
foregoing.

ii.

EPA also may modify the initial submission to cure deficiencies in the
submission if: (i) EPA determines that disapproving the submission and
awaiting a resubmission would cause substantial disruption to the Work;
or (ii) previous submission(s) have been disapproved due to material
defects and the deficiencies in the initial submission under consideration
indicate a bad faith lack of effort to submit an acceptable deliverable.

Resubmissions. Upon receipt of a notice of disapproval under ¶ 7.6(a) (Initial
Submissions), or if required by a notice of approval upon specified conditions
under ¶ 7.6(a)(i)(ii), Respondents shall, within 30 days or such longer time as
specified by EPA in such notice, correct the deficiencies and resubmit the
deliverable for approval. After review of the resubmitted deliverable, EPA may:
(1) approve, in whole or in part, the resubmission; (2) approve the resubmission
upon specified conditions; (3) modify the resubmission; (4) disapprove, in whole
or in part, the resubmission, requiring Respondents to correct the deficiencies; or
(5) any combination of the foregoing.

Implementation Supporting Deliverables. Respondents shall submit each of the
following supporting deliverables for EPA approval, except as specifically provided.
Respondents shall develop the deliverables in accordance with all applicable regulations,
guidances and policies (see Section 10 (References)). Respondents shall update each of
these supporting deliverables as necessary or appropriate during the course of the Work,
and/or as requested by EPA.
(a)

Health and Safety Plan. The Health and Safety Plan (HASP) describes all
activities to be performed to protect on site personnel and area residents from
physical, chemical, and all other hazards posed by the Work. Respondents shall
develop the HASP in accordance with EPA's Emergency Responder Health and
Safety and Occupational Safety and Health Administration (OSHA) requirements
under 29 C.F.R. §§ 1910 and 1926. The HASP required by this RD SOW should
cover RD activities. EPA does not approve the HASP but will review it and
provide comments to the Respondents to ensure that all necessary elements are
included and that the plan provides for the protection of human health and the
environment.

(b)

Emergency Response Plan. Specifications for an Emergency Response Plan
(ERP) shall be submitted as part of the 30/60/90 and 100% design submittal to
address requirements for procedures in the event of an accident or emergency at
the EWOU (for example, power outages, water impoundment failure, treatment
plant failure, slope failure, etc.). The ERP must include:

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i.

Name of the person or entity responsible for responding in the event of an
emergency incident;

ii.

Plan and date(s) for meeting(s) with the local community, including local,
State, and federal agencies involved in the cleanup, as well as local
emergency squads and hospitals;

iii.

Spill Prevention, Control, and Countermeasures (SPCC) Plan (if
applicable), consistent with the regulations under 40 C.F.R. Part 112,
describing measures to prevent, and contingency plans for, spills and
discharges;

iv.

Notification activities in accordance with ¶ 5.15(a) (Release Reporting) in
the event of a release of hazardous substances requiring reporting under
Section 103 of CERCLA, 42 U.S.C. § 9603, or Section 304 of the
Emergency Planning and Community Right-to-know Act (EPCRA),
42 U.S.C. § 11004; and

v.

A description of all necessary actions in the event of an occurrence during
the performance of the Work that causes or threatens a release of Waste
Material from the EWOU that constitutes an emergency or may present an
immediate threat to public health or welfare or the environment.

(c)

Quality Assurance Project Plan. The QAPP must include a detailed explanation
of Respondents' quality assurance, quality control, and chain of custody
procedures for all treatability, design, compliance, and monitoring samples.
Respondents shall develop the QAPP in accordance with EPA Directive CIO
2105.1 (Environmental Information Quality Policy, 2021), the most recent version
of Quality Management Systems for Environmental Information and Technology
Programs - Requirements with Guidance for Use, ASQ/ANSI E-4 (Feb. 2014,
and Guidance for Quality Assurance Project Plans, EPA QA/G-5, EPA Office of
Environmental Information (Dec. 2002). Respondents shall collect, produce, and
evaluate all environmental information at the EWOU in accordance with the
approved QAPP.

(d)

PDI Quality Assurance Project Plan (QAPP) and Baseline Conditions QAPP.
A QAPP addresses sample collection, analysis and data handling. The QAPP
must include a field sampling plan, maps of sampling locations, and an
explanation of Respondents data quality objectives, quality assurance, quality
control, and chain of custody procedures for all treatability, design, compliance,
and monitoring samples.

(e)

Community Impacts Mitigation Plan ("CIMP"). The CIMP describes all
activities to be performed: (1) to reduce and manage the impacts from remedy
implementation (e.g., air emissions, traffic, noise, odor, temporary or permanent
relocation) to residential areas, schools, playgrounds, healthcare facilities, or
recreational or impacted public areas ("Community Areas") from and during

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remedy implementation, (2) to conduct monitoring in Community Areas of
impacts from remedy implementation, (3) to expeditiously communicate validated
remedy implementation monitoring data, (4) to make adjustments during remedy
implementation in order to further reduce and manage impacts from remedy
implementation to affected Community Areas, (5) to expeditiously restore
community resources damaged during remediation such as roads and culverts.
The CIMP should contain information about impacts to Community Areas that is
sufficient to assist the RPM in performing the evaluations recommended under
the Superfund Community Involvement Handbook, OLEM 9230.0-51 (March
2020), pp. 53-56.
(f)

Construction Quality Assurance/Quality Control Plan (CQA/QCP). The
purpose of the Construction Quality Assurance Plan (CQAP) is to describe
planned and systemic activities that provide confidence that the RA construction
will satisfy all plans, specifications, and related requirements, including quality
objectives. The purpose of the CQCP is to describe the activities to verify that RA
construction has satisfied all plans, specifications, and related requirements,
including quality objectives. The CQA/QCP must:
i.

Identify, and describe the responsibilities of, the organizations and
personnel implementing the CQA/QCP;

ii.

Describe the construction PS required to be met to achieve Completion of
the RA;

iii.

Describe the activities and quality control elements required of the
Contractor in the technical specifications to meet the construction
Performance Standards;

iv.

Describe verification activities, such as inspections, sampling, testing,
monitoring, and production controls, under the CQA/QCP;

v.

Describe industry standards and technical specifications used in
implementing the CQA/QCP;

vi.

Describe procedures for tracking construction deficiencies from
identification through corrective action;

vii.

Describe procedures for documenting all CQA/QCP activities; and

viii.

Describe procedures for retention of documents and for final storage of
documents.
8. SCHEDULES

8.1

Applicability and Revisions. All deliverables and tasks required under this SOW must
be submitted or completed by the deadlines or within the time durations listed in the RD
Schedule set forth below. Respondents may submit proposed revised RD Schedules for
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EPA approval. Upon EPA's approval, the revised RD Schedules supersede the RD
Schedules set forth below, and any previously approved RD Schedules.
General. Unless otherwise approved by EPA, submittal revisions following initial EPA
comments shall be due 30 days from receipt of the comments.
8.2

RD Schedule - all days are in calendar days.
Description of
Item
Deliverable, Task
1
Notification of
Respondent's
Supervising
Contractor and Project
Coordinator
2
Respondent's issuance
of Notice to Proceed
to Remedial Design
Contractor
3
Draft Remedial
Design Work Plan
(RDWP)
4
Draft PDIWP
5
Draft Site Wide
Baseline Conditions
Plan
6
PDI and Sitewide
Baseline Conditions
QAPPs/HASPs
7
8

PDI Phase I Data
Submittal
Draft PDIER and PDI
QAPP Addendum for
PDI Phase II

¶ Ref.
3.1(b)

Deadline
14 days after Effective Date of the
Settlement

3.1(a)

180 days from ASAOC effective date

5.1

135 Days after Issuance of Notice to
Proceed to Contractor

5.3(a)
5.5

Same as item 3
Same as item 3

5.3(a)iii
5.5(e),
7.7(a),
7.7(d)
5.4

Within 60 days upon receipt of EPA
comments on draft final PDI WP and
Baseline Conditions Plan

5.3(b),
5.4,
7.7(d)

9

PDI Phase II Data
Submittal

5.4

10

Draft Phase II PDIER

5.4

10 days after Respondents' receipt of
all validated PDI Phase I sampling data
80 days after Respondents' submittal to
EPA of all data for PDI Phase I
Draft PDIER - Phase I is not finalized
10 days after Respondents' receipt of
all validated PDI Phase II sampling
data
60 days after Respondents' submittal to
EPA of all validated PDI Phase II
sampling data

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16

Draft Sitewide
Baseline Conditions
Data Report
Draft Source Control
SA
Draft TS Work Plan
(if required)
Preliminary (30%)
RD/Basis of Design
Intermediate (60%)
RD
Pre-final (90%) RD

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Final (100%) RD

12
13
14
15

5.6

90 days after receipt of final validated
laboratory data

5.7
5.9(b)

60 days after submittal of Preliminary
RD
As set forth in the Final RDWP

5.10

60 days after EPA approval of PDIER.

5.11

120 days after EPA comments on
Preliminary RD.
120 days after EPA comments on
Intermediate RD
60 days after EPA comments on PreFinal RD

5.12
5.13

9. STATE AND TRIBAL PARTICIPATION
9.1

Copies. Respondents shall, at any time they send a deliverable to EPA, send a copy of
such deliverable to the State and Tribe. EPA shall, at any time it sends a notice,
authorization, approval, or disapproval to Respondents, send a copy of such document to
the State and Tribe.

9.2

Review and Comment. The State and Tribe will have a reasonable opportunity for
review and comment prior to:
(a)

Any EPA approval or disapproval under ¶ 7.6 (Approval of Deliverables) of any
deliverables that are required to be submitted for EPA approval; and

(b)

Any disapproval of, or Notice of Work Completion under, ¶ 5.17 (Notice of Work
Completion).
10. REFERENCES

10.1

The following regulations and guidance documents, among others, apply to the Work.
Any item for which a specific URL is not provided below is available on one of the two
EPA Web pages listed in ¶ 10.2:
(a)

A Compendium of Superfund Field Operations Methods, OSWER 9355.0-14,
EPA/540/P-87/001a (Aug. 1987).

(b)

CERCLA Compliance with Other Laws Manual, Part I: Interim Final, OSWER
9234.1-01, EPA/540/G-89/006 (Aug. 1988).

(c)

CERCLA Compliance with Other Laws Manual, Part II, OSWER 9234.1-02,
EPA/540/G-89/009 (Aug. 1989).

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(d)

Guidance on EPA Oversight of Remedial Designs and Remedial Actions
Performed by Potentially Responsible Parties, OSWER 9355.5-01, EPA/540/G90/001 (Apr.1990).

(e)

Guidance on Expediting Remedial Design and Remedial Actions, OSWER
9355.5-02, EPA/540/G-90/006 (Aug. 1990).

(f)

Guide to Management of Investigation-Derived Wastes, OSWER 9345.3-03FS
(Jan. 1992).

(g)

Permits and Permit Equivalency Processes for CERCLA On-Site Response
Actions, OSWER 9355.7-03 (Feb. 1992).

(h)

Guidance for Conducting Treatability Studies under CERCLA, OSWER 9380.310, EPA/540/R-92/071A (Nov. 1992).

(i)

National Oil and Hazardous Substances Pollution Contingency Plan; Final Rule,
40 C.F.R. Part 300 (Oct. 1994).

(j)

Guidance for Scoping the Remedial Design, OSWER 9355.0-43, EPA/540/R95/025 (Mar. 1995).

(k)

Remedial Design/Remedial Action Handbook, OSWER 9355.0-04B, EPA/540/R95/059 (June 1995).

(l)

EPA Guidance for Data Quality Assessment, Practical Methods for Data
Analysis, QA/G-9, EPA/600/R-96/084 (July 2000).

(m)

Guidance for Quality Assurance Project Plans, QA/G-5, EPA/240/R02/009
(Dec. 2002).Institutional Controls: Third Party Beneficiary Rights in Proprietary
Controls (Apr. 2004).

(n)

Quality management systems for environmental information and technology
programs -- Requirements with guidance for use, ASQ/ANSI E4:2014 (American
Society for Quality, February 2014).

(o)

Uniform Federal Policy for Quality Assurance Project Plans, Parts 1-3,
EPA/505/B-04/900A though 900C (Mar. 2005).

(p)

Superfund Community Involvement Handbook SEMS 100000070
(January 2016), https://www.epa.gov/superfund/community-involvement-toolsand-resources.

(q)

EPA Guidance on Systematic Planning Using the Data Quality Objectives
Process, QA/G-4, EPA/240/B-06/001 (Feb. 2006).

(r)

EPA Requirements for Quality Assurance Project Plans, QA/R-5,
EPA/240/B-01/003 (Mar. 2001, reissued May 2006).

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(s)

EPA Requirements for Quality Management Plans, QA/R-2, EPA/240/B-01/002
(Mar. 2001, reissued May 2006).

(t)

USEPA Contract Laboratory Program Statement of Work for Inorganic Analysis,
ILM05.4 (Dec. 2006).

(u)

USEPA Contract Laboratory Program Statement of Work for Organic Analysis,
SOM01.2 (amended Apr. 2007).

(v)

EPA National Geospatial Data Policy, CIO Policy Transmittal 05-002
(Aug. 2008), https://www.epa.gov/geospatial/geospatial-policies-and-standards
and https://www.epa.gov/geospatial/epa-national-geospatial-data-policy.

(w)

USEPA Contract Laboratory Program Statement of Work for Inorganic
Superfund Methods (Multi-Media, Multi-Concentration), ISM01.2 (Jan. 2010).

(x)

Close Out Procedures for National Priorities List Sites, OSWER 9320.2-22
(May 2011).

(y)

Recommended Evaluation of Institutional Controls: Supplement to the
"Comprehensive Five-Year Review Guidance," OSWER 9355.7-18 (Sep. 2011).

(z)

Construction Specifications Institute's MasterFormat [specify current edition],
available from the Construction Specifications Institute,
https://www.csinet.org/masterformat.

(aa)

Updated Superfund Response and Settlement Approach for Sites Using the
Superfund Alternative Approach, OSWER 9200.2-125 (Sep. 2012).

(bb)

Institutional Controls: A Guide to Planning, Implementing, Maintaining, and
Enforcing Institutional Controls at Contaminated Sites, OSWER 9355.0-89,
EPA/540/R-09/001 (Dec. 2012).

(cc)

Institutional Controls: A Guide to Preparing Institutional Controls Implementation
and Assurance Plans at Contaminated Sites, OSWER 9200.0-77, EPA/540/R09/02 (Dec. 2012).

(dd)

EPA's Emergency Responder Health and Safety Manual, OSWER 9285.3-12
(July 2005 and updates), http://www.epaosc.org/_HealthSafetyManual/manualindex.htm.

(ee)

Broader Application of Remedial Design and Remedial Action Pilot Project
Lessons Learned, OSWER 9200.2-129 (Feb. 2013).

(ff)

Guidance for Management of Superfund Remedies in Post Construction, OLEM
9200.3-105 (Feb. 2017), https://www.epa.gov/superfund/superfund-postconstruction-completion.

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10.2

A more complete list may be found on the following EPA Web pages:
Laws, Policy, and Guidance
https://www.epa.gov/superfund/superfund-policy-guidance-and-laws
Test Methods Collections
https://www.epa.gov/measurements/collection-methods

10.3

For any regulation or guidance referenced in the Settlement or SOW, the reference will
be read to include any subsequent modification, amendment, or replacement of such
regulation or guidance. Such modifications, amendments, or replacements apply to the
Work only after Respondents receive notification from EPA of the modification,
amendment, or replacement.

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