Within thirty (30) days after: (1) the period established for review of a draft final primary document pursuant to Part ____ (Review of Submittals) of this Agreement, or (2) any action which leads to or generates a dispute, the disputing Party shall submit to the DRC a written statement of dispute setting forth the nature of the dispute, the work affected by the dispute, the disputing Party's position with respect to the dispute and the technical, legal or factual information the disputing Party isrelying upon to support its position.
B. Prior to any Party's issuance of a written statement of dispute, the disputing Party shall
engage the other Party in informal dispute resolution among the Project Managers and/or their immediate
supervisors. During this informal dispute resolution period the Parties shall meet as many times as are
necessary to discuss and attempt resolution of the dispute.
C. The DRC will serve as a forum for resolution of disputes for which agreement has not
been reached through informal dispute resolution. The Parties shall each designate one individual and an
alternate to serve on the DRC. The -individuals designated to serve on the DRC shall be employed at the
policy level (SES or equivalent) or be delegated the ,authority t o participate oh the DRC for the purposes
of dispute resolution under this Agreement. The U.S. EPA representative on the DRC is the Waste
Management Division Director of U.S. EPA's Region ___. The [DoD Component]'s designated member
is the [DoD Component equivalent]. Written notice of any delegation of authority from a Party's
designated representative on the DRC shall be provided to all other Parties pursuant to the procedures of
Part ____ (Notices).
D. Following elevation of a dispute to the DRC, the DRC shall have twenty-one (21) days
to unanimously resolve the dispute and issue a written decision. If the DRC is unable to unanimously
resolve the dispute with in this twenty-one (21) day period the written statement of dispute shall be
forwarded to the Senior Executive Committee (SEC) for resolution, within seven (7) days after the close
of the twenty-one (21) day resolution period.
E. The SEC will serve as the forum for resolution of disputes for which agreement has not
been reached by the DRC. The U.S. EPA representative on the SEC is the Regional Administrator of
U.S. EPA's Region The [DoD Component]'s representative on the SEC is the [DoD Component
equivalent]. The SEC members shall, as appropriate, confer, meet and exert their best efforts to resolve
the dispute and issue a written decision. If unanimous resolution of the dispute is not reached within
twenty-one (21) days, U.S. EPA's Regional Administrator shall issue a written position on the dispute.
The [DoD Component] may, within fourteen (14) days of the Regional Administrator's issuance of U.S.
EPA's position, issue a written notice elevating the dispute to the Administrator of U.S. EPA for
resolution in accordance with all applicable laws and procedures. In the event that the
[DoD Component] elects not to elevate the dispute to the Administrator within the designated fourteen
(14) day escalation period, the [DoD Component] shall be deemed to have agreed with Regional
Administrator's written position with respect to the dispute.
F. Upon escalation of a dispute to the Administrator of U.S. EPA pursuant to Subpart E, the
Administrator will review and resolve the dispute within twenty-one (21) days. Upon request, and prior
to resolving the dispute, the U.S. EPA Administrator shall meet and confer with the [DoD Component]'s
Secretariat Representative to discuss the issue(s) under dispute. Upon resolution, the Administrator shall
provide the [DoD Component] with a written final decision setting forth resolution of the dispute. The
duties of the Administrator set forth in this Part shall not be delegated.
G. The pendency of any dispute under this Part shall not affect the [DoD Component]'s
responsibility for timely performance of the work required by this Agreement, except that the time
period for completion of work affected by such dispute shall be extended for a period of time usually not
to exceed the actual time taken to resolve any good faith dispute in accordance with the procedures
specified herein. All elements of the work required by this Agreement which are not affected by the
dispute shall continue and be completed in accordance with the applicable schedule.
H. When dispute resolution is in progress, work affected by the dispute will immediately be
discontinued if the Hazardous Waste Division Director for U.S. EPA's Region _____ requests, in writing,
that work related to the dispute be stopped because, in U.S. EPA's opinion, such work is inadequate or
defective, and such inadequacy or defect is likely to yield an adverse effect on human health or the
environment, or is likely to have a substantial adverse effect on the remedy selection or implementation
process. To the extent possible, U. S..EPA shall consult with the [DoD Component] prior to initiating a
work stoppage request. After stoppage of work, if the [DoD Component] believes that the work
stoppage is inappropriate or may have potential significant adverse impacts, the [DoD Component] may
meet with the Division Director to discuss the work stoppage. Following this meeting, and further
consideration of the issues, the Division Director will issue, in writing, a final decision with respect to
the work stoppage. The final written decision of the Division Director may immediately be subjected to
formal dispute resolution. Such dispute may be brought directly to the either the DRC or the SEC, at the
discretion of the [DoD Component].
I. Within twenty-one (21) days of resolution of a dispute pursuant to the procedures
specified in this Part, the [DoD Component] shall incorporate the resolution and final determination into
the appropriate plan, schedule or procedures and proceed to implement this Agreement according to the
amended plan, schedule or procedures.
J. Resolution of a dispute pursuant to this Part of the Agreement constitutes a final
resolution of any dispute arising under this Agreement. All Parties shall abide by all terms and
conditions of any final resolution of dispute obtained pursuant to this Part of this Agreement.
ENFORCEABILITY
A. The Parties agree that:
(1) Upon the effective date of this Agreement, any standard, regulation, condition,
requirement or order which has become effective under CERCLA and is incorporated into this
Agreement is enforceable by any person pursuant to Section 310 of CERCLA, and any violation
of such standard, regulation, condition, requirement or order will be subject to civil penalties
under Sections 310(c) and 109 of CERCLA; and
(2) all timetables or deadlines associated with the RI/FS shall be enforceable by any
person pursuant to Section 310 of CERCLA, and any violation of such timetables or deadlines
will be subject to civil penalties under Sections 310(c) and 109 of CERCLA;
(3) all terms and conditions of this Agreement which relate to interim or final
remedial actions, including corresponding timetables, deadlines or schedules, and all work
associated with the interim or final remedial actions, shall be enforceable by any person pursuant
to Section 310(c) of CERCLA, and any violation of such terms or conditions will be subject to
civil penalties under Sections 310(c) and 109 of CERCLA; and
(4) any final resolution of a dispute pursuant to Part of this Agreement which
establishes a term, condition, timetable, deadline or schedule shall be enforceable by any person
pursuant to Section 310(c) of CERCLA, and any violation of such term, condition, timetable,
deadline or schedule will be subject to civil penalties under Sections 310(c) and 109 of
CERCLA.
B. Nothing in this Agreement shall be construed as authorizing any person to seek judicial
review of any action or work where review is barred by any provision of CERCLA, including Section
113(h) of CERCLA.
C. The Parties agree that all Parties shall have the right to enforce the terms of this
Agreement.
STIPULATED PENALTIES
A. In the event that the [DoD Component] fails to submit a primary document (i.e., Scope
of Work, RI/FS Work Plan, Risk Assessment, RI Report, initial Screening of Alternatives, FS Report,
Proposed Plan, Record of Decision, Remedial Design, Remedial Action Work Plan) to U.S. EPA
pursuant to the appropriate timetable or deadline in accordance with the requirements of this Agreement,
or fails to comply with a term or condition of this Agreement which relates to an interim or final may
assess a stipulated penalty against the [DoD Component]. A stipulated penalty may be assessed in an
amount not to exceed $5,000 for the first week (or part thereof), and $10,000 for each additional week
(or part thereof) for which a failure set forth in this Paragraph occurs.
B. Upon determining that the [DoD Component] has failed in a manner set forth in
Paragraph A. U.S. EPA shall so notify the [DoD Component] in writing. If the failure in question is not
already subject to dispute resolution at the time such notice is received, the [DoD Component] shall
have fifteen (15) days after receipt of the notice to invoke dispute resolution on the question of whether
the failure did in fact occur. The [DoD Component] shall not be liable for the stipulated penalty
assessed by U.S. EPA if the failure is determined, through the dispute resolution process, not to have
occurred. No assessment of a stipulated penalty shall be final until the conclusion of dispute resolution
procedures related to the assessment of the stipulated penalty.
C. The annual reports required by section 120 (e)(5) of CERCLA shall include, with respect
to each final assessment of a stipulated penalty against the [DoD Component] under this Agreement,
each of the following:
1. The facility responsible for the failure;
2. A statement of the facts and circumstances giving rise to the failure;
3. A statement of any administrative or other corrective action taken at the relevant facility,
or a statement of why such measures were determined to be inappropriate;
4. A statement of any additional action taken by or at the facility to prevent recurrence of
the same type of failure; and
5. The total dollar amount of the stipulated penalty assessed for the particular failure.
D. Stipulated penalties assessed pursuant to this Part shall be payable to the Hazardous
Substances Response Trust Fund only in the manner and to the extent expressly provided for in Acts
authorizing funds for, and appropriations to, the DoD.
E. In no event shall this Part give rise to a stipulated penalty in excess of the amount set
forth in Section 109 of CERCLA.
F. This Part shall not affect the [DoD Component]'s ability to obtain an extension of a
timetable, deadline or schedule pursuant to Part ____ of this Agreement.
G. Nothing in this Agreement shall be construed to render any officer or employee of the
[DoD Component] personally liable for the payment of any stipulated penalty assessed pursuant to this
Part.
DEADLINES
[This model provision assumes no investigatory work is in progress at the site and no schedules have
been previously established for study work. The degree of specificity and completeness of the deadlines
contained herein shall be based upon information possessed at the time of development of the site-specific agreement.]
A. The following deadlines have been established, in conjunction with the State, for the
submittal of draft primary documents pursuant to this Agreement:
1. [Scope of Work]
B. Within twenty-one (21) days of the effective date of this Agreement, the [DoD
Component] shall propose deadlines for completion of the following draft primary documents:
2. [RI/FS Work Plan, including Sampling and Analysis Plan and QAPP]
3. [Risk Assessment]
4. [RI Report]
5. [Initial Screening of Alternatives]
6. [FS Report]
7. [Proposed Plan]
8. [Record of Decision]
Within fifteen (15) days of receipt, EPA, in conjunction with the State, shall review and provide
comments to the [DoD Component] regarding the proposed deadlines. Within fifteen (15) days
following receipt of the comments the [DoD Component] shall, as appropriate, make revisions and
reissue the proposal. The Parties shall meet as necessary to discuss and finalize the proposed deadlines.
If the Parties agree on proposed deadlines, the finalized deadlines shall be incorporated into the
appropriate Work Plans. If the Parties fail to agree within thirty (30) days on the proposed deadlines,
the matter shall immediately be submitted for dispute resolution pursuant to Part ____ of this Agreement.
The final deadlines established pursuant to this Paragraph shall be published by U.S. EPA, in
conjunction with the State.
C. Within twenty-one (21) days of issuance of the Record of Decision, the (DoD
Component] shall propose deadlines for completion of the following draft primary documents:
9. [Remedial Design]
10. [Remedial Action Work Plan]
These deadlines shall be proposed, finalized and published utilizing the same procedures set
forth in Paragraph B, above.
D. The deadlines set forth in this Part, or to be established as set forth in this Part, may be
extended pursuant to Part of this Agreement. The Parties recognize that one possible basis for extension
of the deadlines for completion of the Remedial Investigation and Feasibility Study Reports is the
identification of significant near Site conditions during the performance of the remedial investigation.
EXTENSIONS
A. Either a timetable and deadline or a schedule shall be extended upon receipt of a timely
request for extension and when good cause exists for the requested extension. Any request for extension
by the [DoD Component] shall be submitted in writing and shall specify:
1. The timetable and deadline or the schedule that is sought to be extended;
2. The length of the extension sought;
3. The good cause(s) for the extension; and
4. Any related timetable and deadline or schedule that would be affected if the
extension were granted.
B. Good cause exists for an extension when sought in regard to:
1. An event of force majeure;
2. A delay caused by another party's failure to meet any requirement of this
agreement;
3. A delay caused by-the good-faith invocation of dispute resolution or the
initiation of judicial action;
4. A delay caused, or which is likely to be caused, by the grant of an extension in
regard to another timetable and deadline or schedule; and
5. Any other event or series of events mutually agreed to by the Parties as
constituting good cause.
C. Absent agreement of the Parties with respect to the existence of good cause, the (DoD
Component) may seek and obtain a determination through the dispute resolution process that good cause
exists.
D. Within seven days of receipt of a request for an extension of a timetable and deadline or
a schedule, U.S. EPA shall advise the [DoD Component] in writing of its respective position on the
request. Any failure by U.S. EPA to respond within the 7-day period shall be deemed to constitute
concurrence in the request for extension. If U.S. EPA does not concur in the requested extension, it shall
include in its statement of nonconcurrence an explanation of the basis for its position.
E. If there is consensus among the Parties that the requested extension is warranted, the
[DoD Component] shall extend the affected timetable and deadline or schedule accordingly. If there is
no consensus among the Parties as to whether all or part of the requested extension is warranted, the
timetable and deadline or schedule shall not be extended except in accordance with determination
resulting from the dispute resolution process.
F. Within seven days of receipt of a statement of nonconcurrence with the requested
extension, the [DoD Component] may invoke dispute resolution.
G. A timely and good faith request for an extension shall toll any assessment of stipulated
penalties or application for judicial enforcement of the affected timetable and deadline or schedule until a
decision is reached on whether the requested extension will be approved. If dispute resolution is invoked
and the requested extension is denied, stipulated penalties may be assessed and may accrue from the
date of the original timetable, deadline or schedule. Following the grant of an extension, an assessment
of stipulated penalties or an application for judicial enforcement may be sought only to compel
compliance with the timetable and deadline or schedule as most recently extended.
FORCE MAJEURE
A Force Majeure shall mean any event arising from causes beyond the control of a Party that
causes a delay in or prevents the performance of any obligation under this Agreement, including, but not
limited to, acts of God; fire; war; insurrection; civil disturbance; explosion; unanticipated breakage or
accident to machinery, equipment or lines of pipe despite reasonably diligent maintenance; adverse
weather conditions that could not be reasonably anticipated; unusual delay in transportation; restraint by
court order or order of public authority; inability to obtain, at reasonable cost and after exercise of
reasonable diligence, any necessary authorizations, approvals, permits or licenses due to action or
inaction of any governmental agency or authority other than the (DoD Component]; delays caused by
compliance with applicable statutes or regulations governing contracting, procurement or acquisition
procedures, despite the exercise of reasonable diligence; and insufficient availability of appropriated
funds, if the [DoD Component] shall have made timely request for such funds as part of the budgetary
process as set forth in Part ____ (Funding) of his Agreement. A Force Majeure shall also include any
strike or other labor dispute, whether or not within the control of the Parties affected thereby. Force
Majeure shall not include increased costs or expenses of Response Actions, whether or not anticipated at
the time such Response Actions were initiated.
FUNDING
It is the expectation of the Parties to this Agreement that all obligations of the [DoD
Component] arising under this Agreement will be fully funded. The [DoD Component] agrees to seek
sufficient funding through the DoD budgetary process to fulfill its obligations under this Agreement.
In accordance with Section 120(e)(5)(B) of CERCLA, 42 U.S.C. §9620(e)(5)(B), the [DoD
Component] shall include in its annual report to Congress the specific cost estimates and budgetary proposals associated with the implementation of this Agreement.
Any requirement for the payment or obligation of funds, including stipulated penalties, by the
[DoD Component] established by the terms of this Agreement shall be subject to the availability of
appropriated funds, and no provision herein shall be interpreted to require obligation or payment of funds
in violation of the Anti-Deficiency Act, 31 U.S.C. §1341. In cases where payment or obligation of funds
would constitute a violation of the Anti-Deficiency Act, the dates established requiring the payment or
obligation of such funds shall be appropriately adjusted.
If appropriated funds are not available to fulfill the [DoD Component]'s obligations under this
Agreement, U.S. EPA reserves the right to initiate an action against any other person, or to take any
response action, which would be appropriate absent this Agreement.
Funds authorized and appropriated annually by Congress under the "Environmental Restoration,
Defense" appropriation in the Department of Defense Appropriation Act and allocated by the DASD(E)
to the [DoD Component] will be the source of funds for activities required by this Agreement consistent
with Section 211 of SARA, 10 U.S.C. chapter 160. However, should the Environmental Restoration,
Defense appropriation be inadequate in any year to meet the total [DoD Component] CERCLA
implementation requirements, the DoD shall employ and the [DoD Component] shall follow a
standardized DoD prioritization process which allocates that year's appropriations in a manner which
maximizes the protection of human health and the environment. A standardized DoD prioritization
model shall be developed and utilized with the assistance of U.S. EPA and the states.
GENERIC TABLE OF CONTENTS
FOR FEDERAL FACILITY AGREEMENTS
UNDER CERCLA SECTION 120
Determinations
Parties
Definitions
Site Description
Findings of Fact
Scope of Agreement
Remedial Investigation
Feasibility Study
Interim Remedial Actions
Remedial Action
RCRA Closure
Creation of Danger/Emergency Actions
Reporting
Notification
Project Managers
Sampling and Data/Document Availability
Site Access
Five Year Review
Retention of Records
Other Claims
Confidential Information
Transfer of Property
Public Participation/Community Relations
Public Comment
Amendment
Termination
Effective Date