USEPA_ARMY_1991_Final_Federal_Facilities_Agreement_Under_CERCLA_Section_120_Devens.pdf

I

IAG COVER SHEET

FILE NAME: FtDevens.pdf

Title : Fort Devens, Fort Devens Army Installation

Subject : Region 1, I

Author : Army, DoD, Massachusetts, MA

Keywords: 05/31/91,1991, FY91

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 1

J.F. KENNEDY FEDERAL BUILDING, BOSTON, MASSACHUSETTS 02203-2211

November 15, 1991

F . Timothy Prior

Environmental Protection Specialist

United States Army

Headquarters Fort Devens

AFZD-DEQ Box 10

Fort Devens, MA 01433-5100

Re : Federal Facility Agreement, dated November 15, 1991, under CERCLA Section 120 for the Fort Devens Army Installation

Dear Mr . Prior :

Enclosed is a copy of the above-captioned Federal Facility Agreement, signed by the Army and EPA.

The draft agreement, dated May 13, 1991, has been modified in response to comments received during the public comment period .

Copies of the comments and the response of the parties will be placed in the public information repository at Fort Devens,and made part of the administrative record .

The draft agreement has been modified as follows :

1 . In Section 2 .1, line 10,. add the following sentence after the word "date ." :

"Accordingly, the Parties intend provisions in this Agreement which state that the Commonwealth or DEP "should", ''shall@ or 11wili" perform a certain task to mean that the Commonwealth or DEP may, at its option, perform the task ."

2 . In Section 7 .4, after the second sentence, insert the following sentence :

"The Army shall provide the Commonwealth's Project manager with advance notice of meetings of the Parties' Project Managers and of the Technical Review Committee ."

PRINTED ON RECYCLED PAPER

3 . In Section 7 .5(a), delete from line 15 the words :

"Commonwealth shall then" and insert the words : "Army shall then request the commonwealth to."

4 . In Section 7 .5(a), delete all of the words in the fourth sentence following the word and comma "possible," and replace the comma with a period .

5 . In line 3 of the first paragraph of Section 7 .8, insert the following after the word "EPA" :

Band the Commonwealth ."

6 . In lines 5 and 6 of the first paragraph of Section 7 .8, insert the following after the word "EPA" :

the Commonwealth," ;

and delete the following after the word "comments" :

go, or, if Dispute,, and insert a period.

7 . Delete line 6 of the first paragraph from Section 7 .8 .

8 . In line 7 of the first paragraph of Section 7 .8, insert the following after the word "invoked" :

'$by the Army or EPA . 11

9 . Insert the following sentence before the first sentence of the second paragraph of Section 7 .8 :

"If Dispute Resolution is invoked by the Army or EPA, and the Army-es position is sustained, the document shall serve as the final Primary report, shall be deemed incorporated herein, and shall become an enforceable part hereof ."

10 . In line 18 of Section 17 .2, insert the following words after the word "EPA" :

'land the Commonwealth ."

11 . After the third sentence in section 17 .3, insert the following sentence :

"The Parties shall consult with the Commonwealth on any remedy which the Parties jointly select ."

12 . In Section 31 .1, delete the six lines under the words :

"As to the Commonwealth" : and insert the following :

I'D. Lynne Chappell Section Chief Federal Facilities Section Bureau of Waste Site Cleanup Department of Environmental Protection Central Region 75 Grove Street Worcester, MA 0160511

These modifications are reflected in the enclosed final agreement .

Since the parties have determined that no additional public notice and comment are required, pursuant to Section 27 .3 of the agreement, I am transmitting the enclosed copy of the agreement to you and notifying you that the agreement will be effective as. of

November 15, 1991 .

EPA will publish notice of the finalization of the agreement in two local newspapers of general circulation .

We appreciate the efforts of the Army in the negotiation of the agreement, and we look forward to working with you in the cleanup of Fort Devens .

Sincerely, James P . Byrne

Remedial Project Manager

Federal Facilities Section enc .

cc : Paul D . Crane, Esq . (w/ enc .)

Robert A . DiBiccaro, Esq. (w/ enc .)

FINAL

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION I

AND THE

UNITED STATES DEPARTMENT OF THE ARMY

IN THE MATTER OF :

THE U .S . DEPARTMENT

OF THE ARMY

FORT DEVENS ARMY INSTALLATION

FORT DEVENS, MA

FEDERAL FACILITY AGREEMENT UNDER CERCLA SECTION 120

TABLE OF CONTENTS

I .

II .

III .

IV .

V .

VI .

VII .

VIII .

IX .

X .

XI .

XII .

XIII .

PURPOSE

PARTIES AND SCOPE OF AGREEMENT

DEFINITIONS

JURISDICTION

STATEMENT OF FACTS . .

WORK TO BE PERFORMED .

CONSULTATION WITH EPA .

PROJECT MANAGERS . . .

ACCESS

DATA AND DOCUMENT AVAILABILITY

PERMITS

REMOVAL AND EMERGENCY ACTIONS

DISPUTE RESOLUTION

XIV . DEADLINES AND SCHEDULES

XV . EXTENSIONS

XVI . FORCE MAJEURE

XVII . RECORDS OF DECISION AND PLANS FOR REMEDIAL ACTION 54

XVIII . EXEMPTIONS

XIX . EPA CERTIFICATION

XX . STATUTORY COMPLIANCE/RCRA, CERCLA INTEGRATION 59

XXI . ENFORCEABILITY

XXII . STIPULATED PENALTIES

XXIII . OTHER CLAIMS

XXIV. TERMINATION AND SATISFACTION

XXV. FUNDING

XXVI . COMMUNITY RELATIONS . . . . . . . . . . . . . . . 69€

XXVII . PUBLIC COMMENT ON THIS AGREEMENT . . . . . . . . 70€

XXVIII . PRESERVATION OF RECORDS . . . . . . . . . . . . . 72€

XXIX . AMENDMENT OR MODIFICATION OF AGREEMENT . . . . . 73€

XXX . EFFECTIVE DATE . . . . . . . . . . . . . . . . . 74€

XXXI . NOTICES AND SUBMISSIONS . . . . . . . . . . . . . 75€

XXXII . QUARTERLY PROGRESS REPORTS . . . . . . . . . . . . 76€

XXXIII . FIVE YEAR REVIEW . . . . . . . . . . . . . . . . 77€

XXXIV . RESERVATION OF RIGHTS FOR RECOVERY OF EPA€

EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78€

XXXV . QUALITY ASSURANCE . . . . . . . . . . . . . . 79€

XXXVI . RELEASE OF RECORDS . . . . . . . . . . . . . . . 80€

XXXVII . TRANSFER OF REAL PROPERTY . . . . . . . . . . . . 81€

XXXVIII . INSTALLATION CLOSURE . . . . . . . . . . . . . . 82€

XXXIX . SEVERABILITY . . . . . . . . . . . . . . . . . . 83€

XL . APPENDICES AND ATTACHMENTS . . . . . . . . . . . 84€

XLI . SIGNATURE PAGE . . . . . . . . . . . . . . . . . 85€

APPENDICES

I . MASTER ENVIRONMENTAL PLAN REQUIREMENTS

II . INSTALLATION RESTORATION PROGRAM (IRP) DOCUMENTS REVIEWED

ATTACHMENTS

I . A MAP AND LIST OF AREAS OF CONTAMINATION (AOC) AND STUDY

AREAS (SA)

Based on the information available to the Parties on the Effective Date of this Federal Facility Agreement (Agreement), and without trial or adjudication of any issues of fact or law, the Parties agree as follows :

I . PURPOSE

1 .1 The general purposes of this Agreement are to :

(a) Ensure that the environmental impacts associated with the past and present activities at the Site are thoroughly investigated, and to ensure that the appropriate Removal and Remedial Action is taken as necessary to protect human health and the environment ;

(b) Establish a procedural framework and timetable for developing, implementing, and monitoring appropriate Response Actions at the Site in accordance with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthori.zation Act of 1986 (collectively CERCLA), the National Contingency Plan (NCP), Superfund guidance and policy, the Resource Conservation and Recovery Act, as amended (RCRA), and RCRA guidance and policy :

(c) Facilitate the cooperation, the exchange of information and participation of the Parties in such actions .

1 .2 specifically, the purposes of this Agreement are to :

(a) Identify Operable Unit (OU) alternatives which are appropriate to address the release or threatened release of Hazardous Substances, pollutants, contaminants or Oil at the Site . OU alternatives shall be identified and proposed to the EPA as early as possible, prior to formal proposal of an OU to EPA, pursuant to CERCLA and this Agreement . This Agreement process is designed to promote cooperation among the Parties in identifying OU alternatives prior to selection of a final Remedial Action ;

(b) Establish requirements for the performance of Preliminary Assessment(s) (PA), Site Inspections(s) (SI) and Remedial Investigation(s) (RI) to determine fully the nature and extent of the threat to human health and the environment caused by the release or threatened release of Hazardous Substances, pollutants, or contaminants or oil at the

Site, and to establish requirements for the performance of Site Feasibility Studies (FS) to identify, evaluate and select alternatives for the appropriate Remedial Action (s) at the identified Areas of Contamination (AOC) to prevent, mitigate or abate the release or threatened release of Hazardous Substances, pollutants, contaminants or Oil at the site in accordance with CERCLA and this Agreement ;

(c) Identify the nature, objective, and schedule of Response Actions to be taken at the Site, and to ensure that Remedial Actions at the Site shall attain that degree of cleanup of Hazardous Substances, pollutants, contaminants or Oil mandated by CERCLA, RCRA, and this Agreement ;

(d) Implement and maintain the selected Remedial Action(s) in accordance with CERCLA and this Agreement ; and to meet the requirements of CERCLA § 120(e)(2) for this Agreement between the Parties ; .

Ensure compliance, through this Agreement, with RCRA and other Federal hazardous waste laws and regulations for matters covered herein ;

Coordinate Response Actions at the Site with the mission and support activities at the Federal Facility known as the Fort Devens Army Installation ;

Expedite the cleanup process to the extent consistent with the protection of human health and the environment ;

(h) Provide for the Operation and Maintenance of any Remedial Action selected and implemented pursuant to this Agreement ;

Provide for the Commonwealth's appropriate involvement, as defined by CERCLA and the NCP, in the initiation, development, selection and enforcement of Response Actions to be undertaken at the Federal Facility known as the Fort Devens Army Installation, including the review of all applicable data as it becomes available and the development of studies, reports, and action plans ; and to identify and integrate State ARARs into the Remedial Action process ;

Identify Removal Actions which are appropriate for the Site, and provide timely notice to the other Party of such proposed actions .

II. PARTIES AND SCOPE OF AGREEMENT

2 .1 The Parties to this Agreement are EPA and the Army, and this Agreement shall apply to and be binding upon EPA and the Army . The Commonwealth elected not to be a Party to this Agreement at the time the Agreement was negotiated and executed . However, consistent with CERCLA and the NCP, EPA and the Army have agreed to allow the Commonwealth a participatory role in the Site remediation as defined in this Agreement, and an opportunity to enter into the Agreement, should they choose to, at a later date . Accordingly, the Parties intend provisions in this Agreement which state that the Commonwealth or DEP "should", "shall" or "will" perform a certain task to mean that the Commonwealth or DEP may, at its option, perform the task .

2 .2 In selecting contractors to perform Work associated with the Site, the Army will comply with the Federal Acquisition Regulation (FAR), 48 C.F .R ., and 40 C .F .R .

Part 32, Defense Federal Acquisition Regulations, and Army Federal Acquisition Regulations .

2 .3 Each Party shall be responsible for ensuring that its contractors comply with the terms and conditions of this Agreement . Failure of a Party to provide proper direction to its contractors and any resultant noncompliance with this Agreement by a contractor shall not be considered a Force Majeure event or other good cause for extensions under Section XV, (Extensions), unless the Parties so agree . The Parties upon contractor selection, shall notify the other Party of the identity and the assigned tasks of each of its contractors performing Work under this Agreement .

2 .4 This Agreement shall apply to and be binding upon the Army and EPA, their respective officers, successors in office, agents and employees and shall not be construed as an agreement to indemnify any person . The Army shall notify its members, employees, agents, lessees and response action contractors of the existence of this Agreement .

This Agreement shall also be binding upon any subsequent owners, lessees and operators of Fort Devens Army Installation . The Army agrees to include notice of this Agreement in any document transferring ownership or control to any subsequent owners and operators of any portion of the Facility in accordance with CERCLA § 120(h), 40 C .F .R . § 264 .119 and § 264 .120, and shall notify EPA and the Commonwealth of any such change of ownership or control at least sixty (60) days prior to such transfer .

2 .5 The scope of this Agreement extends to the entire Facility, as defined at Section III, herein . The Parties agree that the entire Facility is listed as an EPA CERCLA NPL Site, and therefore the Facility cannot be removed from the NPL until EPA determines, in accordance with CERCLA, and this Agreement, that the Site no longer poses a threat to human health and the environment . Further, the Parties agree that due to the complexity of the Remedial Action at the Site and the methods utilized to identify Hazardous Substances, pollutants, contaminants and Oils at the Site, remediation activities at the Site shall occur in discrete locations called Areas of Contamination (AOC) .

Contamination that has migrated off-site, or commingled amongst AOCs will be remediated in accordance with this Agreement . The acceptable level of remediation will be based on both an individual AOC and its collective impact upon the entire Site . For each Area of Contamination, or portion thereof, (Operable Unit (OU)) identified at the Site pursuant to this Agreement, the Army shall perform the Work identified in Paragraphs 2 .6, 2 .7, and 2 .8 below, where required in accordance with the requirements of this Agreement .

2 .6 The Army shall develop, implement and report upon Preliminary Assessments (PA), Site Inspections (SI), and Remedial Investigations (RI) at the Site for each Area of Contamination (AOC)/Study Area (SA) or OU in accordance with Section VI, (Work to be Performed) of this Agreement, the NCP, and applicable EPA policy and guidance . All PA, SI, and RI activities at the Site shall be conducted in accordance with the requirements and Deadlines set forth in Appendix I and Section XIV, (Deadlines and Schedules), of this Agreement . All PA, SI, and RI activities shall be designed to meet the purposes set forth in section I, (Purpose), of this Agreement .

2 .7 The Army shall develop, implement and report upon Feasibility Studies (FS) for each AOC or OU at the Site where required in accordance with Section VI, (Work to be Performed) of this Agreement, the NCP, and applicable EPA regulations, policy and guidance . All FS activities shall be conducted in accordance with the requirements and time Schedules set forth in Appendix I and Section XIV, (Deadlines and Schedules), of this Agreement . All FS activities shall meet the purposes set forth in Section I, (Purpose), of this Agreement .

2 .8 The Army shall perform Remedial Design, Remedial Action (RD/RA) and Operation and Maintenance (O & M) activities at the Site in accordance with CERCLA § 120(e)(2), Section XVII, (Records of Decision and Plans for Remedial Action), of this Agreement, CERCLA, the NCP, RCRA and applicable regulations thereunder .

2 .9 This Agreement shall apply to all releases and threatened releases of Hazardous Substances, pollutants, contaminants or Oil at or from Fort Devens, including such releases and threatened releases at or from Areas of Contamination/Study Areas at Fort Devens to which CERCLA and RCRA or CERCLA alone applies .

111. DEFINITIONS

3 .1 The terms used in this Agreement shall have the same definition as the terms defined in CERCLA and the National Contingency Plan (NCP), unless specifically otherwise defined in this Agreement. The following terms used in this Agreement are defined as follows :

(a) "Additional Work" shall mean all activities required by Section XIX (EPA Certification), herein ;

(b) "Agreement" shall refer to this document and shall include all Appendices and Attachments to this Agreement . All such Appendices and Attachments shall be appended to and made part of this Agreement as covered under Section XL, (Appendices & Attachments) ;

"ARARs" shall mean Federal and State Applicable or Relevant and Appropriate Requirements, standards, criteria, or limitations, identified pursuant to CERCLA § 121 . ARARs shall apply under this Agreement in the same manner and to the same extent that ARARs are applied in a non-Federal Facility context pursuant to CERCLA § 120(a)(1) ;

(d) "Area(s) of Contamination" or "AOC(s)" shall mean (1) any of the areas listed or described in Section V (Statement of Facts) and in Attachment I of this Agreement, which indicates that a release or threatened release of Hazardous Substances, pollutants, contaminants or Oils has occurred, (2) any area or group of areas to or under which investigations document that a release of Hazardous Substances, pollutants, contaminants or Oils has occurred, migrated, or threatens to migrate from any of the above listed areas or locations ; and (3) any area or location or group of areas or locations where a Hazardous Substance has been deposited, stored, disposed of, or placed, or otherwise come to be located within the Site boundaries and identified by any of the Parties, or their agents, or authorized representatives and added to this Agreement pursuant to Section VI (Work To Be Performed) of this Agreement and the MEP consistent with the SI findings and recommendations ;

(e) "Army" shall mean the United States Department of the Army, its employees, members, agents, and authorized representatives to the extent necessary to effectuate the terms of this Agreement, including, but not limited to, appropriations and Congressional reporting requirements ;

"CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U .S .C .

§ 9601 et seq ., as amended by the Superfund Amendments and Reauthorization Act of 1986, Public Law 99-499 ;

"Cleanup Standard(s)" shall mean the numerical criteria representing the degree of cleanup to be achieved at an AOC or OU as set forth in the relevant Record of Decision (ROD) ;

(h) "Commonwealth" shall mean the Commonwealth of Massachusetts and its employees, agents, authorized representatives, successors and assigns ;

"Contingency Plan" shall mean a written plan for the purpose of protecting the local affected population in the event of an accident or emergency related to CERCLA cleanup activities . It may include an Air Monitoring Plan and a Spill Control Countermeasures Plan, if applicable, for the site . The following is a list of items to be considered for inclusion in such a plan : the name and telephone number of person(s) responsible for responding in the event of an emergency ; a plan and date for meeting with the local community, local, state, and federal agencies involved in the cleanup, as well as local emergency squads and hospitals ; first aid and medical information including names of personnel trained in first aid and HAZMAT Response, a map with locations of medical facilities, and emergency phone numbers ;

an Air Monitoring Plan ; a Site Evacuation Plan ; and a Spill Control and Countermeasures Plan ;

"Day" or "Days" means calendar day(s), unless business day(s) are specified . However, any submittal or written statement of dispute which under the terms of this Agreement would be due on a Saturday, Sunday, or a holiday shall be due on the next occurring business day ;

(k) "Deadline" shall be the time limitation applicable to issuance by the Army of RI/FS documents for which a limitation has been specifically established under the terms of this Agreement ;

"DEP" shall mean the Commonwealth of Massachusetts' Department of Environmental Protection, its employees, agents, authorized representatives, successors and assigns . For purposes of the implementation of this Agreement, the DEP shall be considered the designated representative of the Commonwealth ;

(m) "EPA" shall mean the United States Environmental Protection Agency, its employees, agents, authorized representatives, successors and assigns ;

(n) "Feasibility Study" or "FS" shall mean a study conducted pursuant to CERCLA, the NCP and relevant guidance, which fully develops, screens and evaluates, in detail, Remedial Action alternatives to prevent, mitigate, or abate the migration or the release or threatened release of Hazardous Substances, pollutants, contaminants or oil at and.

from the Site . The Army shall conduct and prepare the FS in a manner to support the intent and objectives of Section XX, (Statutory Compliance/RCRA CERCLA Integration) ;

(o) "Federal Facility" or "Facility" or "Fort Devens" shall mean the Fort Devens Army Installation ;

"Fort Devens Army Installation" or "Fort Devens" shall mean the real property comprising the Fort Devens Army Installation located in the Towns of Ayer, Lancaster, Harvard and Shirley, in the Counties of Middlesex and Worcester, Massachusetts, and consisting of approximately 9400 acres . For purposes of this Agreement, the term "Fort Devens Army Installation", "Fort Devens", "Federal Facility", or "Facility" shall include such real property, even if later acquired or transferred to or from ownership or control of the United States, or an Agency, or Department thereof . That real property presently owned by the Commonwealth and known as the Massachusetts National Guard Armory is not part of the Fort Devens Army Installation ;

"Hazardous Substance(s)" shall mean all those substances which are included under CERCLA § 101(14), 42 U .S .C . § 9601(14) ; hazardous waste under RCRA § 1004(5), 42 U.S .C . § 6903(5) ; and hazardous constituents under RCRA § 3008(h) and 40 C .F .R . Part 261 Appendix VIII ;

(r) "Master Environmental Plan" or "MEP" shall mean a Primary document which supplies a comprehensive plan for work pursuant to CERCLA . The MEP shall include at a minimum :

(a) A list of Study Areas and Areas of Contamination ;

(b) A time Schedule ; and

(c) A prioritization scheme for the Work Schedules .

Further, the MEP shall be updated periodically to reflect Additional Work requirements ;

"National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous Substances Pollution Contingency Plan and any subsequent amendments, promulgated pursuant to CERCLA and found at 40 C .F .R .

Part 300 ;

(t) "Oil" shall mean, only to the extent that the Oil constitutes an imminent and substantial harm to human health and the environment, Oil of any kind or in any form including, but not limited to petroleum, fuel oil, sludge, oil refuse, oil mixed with wastes other than dredged oil and waste Oil ;

(u) "Operable Unit" or 'IOU" shall mean a discrete Response Action that comprises an incremental step towards comprehensively addressing an AOC or Hazardous Substance migrating from an AOC . Each AOC may be divided into one or more OUs, at any phase of the Response Action, depending on the type and complexity of contamination associated with the AOC ;

(v) Reserved

(w) "Parties" shall mean the Army and EPA ;

(x) "Performance Standard(s)" shall mean the criteria representing the degree and method of cleanup to be achieved at an AOC, including all location, chemical, and action-specific ARARs identified in the ROD and the MEP, or by the EPA, prior to Certification of the Completion of the Work ; and all other health or environmentally related numerical standards in the ROD . Performance Standards include all . Cleanup Standards ;

"Person" shall mean an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, U .S . Government, State, municipality, commission, political subdivision of a State or interstate body ;

(z) "Preliminary Assessment" or "PA" shall mean a complete review of existing information, including but not limited to, on-Site reconnaissance and off Site reconnaissance to determine if a release or threatened release may require additional investigation or Response Action . Such PA shall be performed in accordance with CERCLA, CERCLA guidance and the NCP, as supplemented by the substantive provisions of EPA RCRA Facilities Assessment guidance ;

(aa) "Project Closeout Report" shall mean that report that shall, upon the completion of the Remedial Action and correction of all punch list (deficiency list) items, be proposed by the Federal Facility which certifies that all items contained within this Agreement, and any subsequent agreements (including incorporated documents such as plans and specifications) have been completed . The report shall include documentation (test results) substantiating that the performance standards have been met and a "Record of Drawings" ("As Built") of the project . The Project Managers shall review the Project Closeout Report and verify that all changes and variations from the original contract drawings have been made on "Record Drawings",.

(bb) "RCRA" shall mean the Resource Conservation and Recovery Act, 42 U .S .C . § 6901 et . seq ., as amended by the Hazardous and Solid Waste Amendments of 1984, Public Law 98-616, and any subsequent amendments ;

(cc) "Record of Decision" or "ROD" shall mean a public document that describes the Remedial Action alternative(s) selected to be implemented at one or more Operable Units at Areas of Contamination and the basis for the selection . The ROD shall be based on information and technical analysis generated during the RI/FS ;

(dd) "Remedial Design" or "RD" shall mean the technical analysis and procedures which follow the selection of a remedy for a Site, and result in a detailed set of plans and specifications for implementation o£ the Remedial Action ;

(ee) "Remedial Investigation" or "RI" shall mean that investigation conducted pursuant to CERCLA and the

1 0

NCP,`as supplemented by the substantive provisions of the EPA RCRA Facilities Assessment guidance . The RI serves as a mechanism for collecting data for site and waste characterization and conducting treatability studies as necessary to evaluate performance and cost of the treatment technologies .

The data gathered during the RI will also be used to conduct a baseline risk assessment, including characterization of risk of harm to the human health and environment, to perform a Feasibility Study, to evaluate of the natural resources damaged by the releases or threatened releases of Hazardous Substances, and to support the design of a selected remedy . The Army shall conduct and prepare all RIs in a manner to support the intent and objectives of Section XX, (Statutory Compliance/RCRA-CERCLA Integration) ;

(ff) "Remedy" or "Remedial Action" or "RA" shall have the same meaning as provided in CERCLA § 101(24), 42 U .S .C . § 9601(24), and the NCP, and may consist of one or more OUs ;

(gg) "Remove" or "Removal" shall have the same meaning as provided in CERCLA § 101(23), 42 U .S .C . § 9601(23) ;

(hh) "Response Action(s)" shall mean all Removal and Remedial Actions including enforcement activities related to the Site ;

(ii) "Schedule" shall mean the time limitations established for the completion of Remedial Design and Remedial Actions (RD/RA) at the Site ;

(jj) "Scope of Work" or "SOW" shall mean the Scope of Work for implementation of the PA/SI, RI/FS, RD/RA and Operations and Maintenance (O & M) as set forth in the MEP, and any modification thereto in accordance with this Agreement ;

"Site" shall mean land owned, operated, controlled, leased, used by right of easement, or licensed by any department or agency of the United States Government or other owners or operators, in the past, present or at a future time at the Federal Facility known as the Fort Devens Army Installation or any area off the Facility to or under which a release of Hazardous Substances has migrated, or threatens to migrate, from a :source on or at Fort Devens Army Installation .

For purposes of obtaining permits, the term "On-Site" shall include areas within Fort Devens, the areal extent of contamination and all areas necessary for implementation of Response Actions ;

(11) "Site Inspection" or "SI" shall mean an On-Site investigation to determine whether a release or potential release exists and the nature of the associated threats to human health and the environment . Sampling and other field data shall be used to augment the SI, and to determine if further investigation or Response Action maybe required . If EPA determines that a Response Action may be required, then the area shall be designated an Area of Contamination . If, however, the SI fails to conclusively establish the need for an AOC designation, the area shall remain a Study Area which shall require no Additional work pursuant to this Agreement . Such SI work shall be conducted in accordance with CERCLA, CERCLA guidance and the NCP, as supplemented by the substantive provisions of EPA RCRA Facilities Assessment guidance and this Agreement ;

"State" shall mean the Commonwealth of Massachusetts and its employees, agents, authorized representatives, successors and assigns ;

(nn) "Study Area" or "SA" shall mean a discrete area or areas within the Site that, based upon objective evidence, previous data gathering, interviews or the mutual agreement of the Parties, has been identified by utilizing the procedures described in the Master Environmental Plan as a potential Area of Contamination . If a threat or potential threat to human health or the environment is determined to exist, an RI/FS shall be conducted and the area henceforth shall be designated an AOC . If such a threat or potential threat is determined not to exist, the SI shall so indicate that the area has been removed from further study or consideration, unless it is subsequently determined that a threat or potential threat to human health or the environment exists at the area ;

(oo) "Timetable" shall be the collective term for all the "Deadlines", and "Schedules" established for the RD/RA activities ; and,

(pp) "Work" shall mean activities or obligations required by this Agreement and the MEP, including but not limited to PA/S1, RI/FS, RD/RA, Operation and Maintenance (O & M) and any activities required to be undertaken pursuant to Section VI, (Work to be Performed), or the MEP .

IV. ZURISDICTION

4 .1€ Each Party is entering into this Agreement pursuant to the following authorities :

(a)€ The EPA enters into those portions of this Agreement that relate to the PA/SI, RI/FS and RD/RA pursuant to CERCLA § 120(e)(1) and RCRA §§ 6001, 3008(h), 3004(u) and (v), 7003, and Executive orders 11735 and 12580 :

(b)€ EPA enters into those portions of this Agreement that relate to Operable Units, and final Remedial Actions pursuant to CERCLA § 120(e)(2), RCRA §§ 6001, 3008(h), 3004(u) and (v), 7003, and Executive Orders 11735 and 12580 :

(c)€ The Army enters into those portions of this Agreement that relate to the PA/S1, R1/FS, Operable Unit and the final Remedial Actions pursuant to CERCLA § 120(e)(1)and(2), RCRA §§ 6001, 3008(h) and 3004(u) and (v), 7003, Executive Orders 11735 and 12580, and the Defense Environmental Restoration Program (DERP), 10 U .S .C . § 2701 et . seq.

V. STATEMENT OF FACTS

5 .1 Fort Devens Army Installation was listed on the National Priorities List (NPL) update of November 21, 1989, 54 Fed .

Reg . 48187 and is therefore subject to the special provisions for federal facility NPL sites in CERCLA § 120, 42 U .S .C . § 9620, and the Superfund Amendments and Reauthorization Act (SARA) § 211, 10 U .S .C . § 2701, Defense Environmental Restoration Program et seq .

5 .2 Fort Devens Army Installation is a facility under the jurisdiction, custody, or control of the Department of Defense within the meaning of Executive Order 12580, 52 Fed . Reg . 2923, January 29, 1987, and within the meaning of DERP, 10 U .S .C . § 2701 et seq . The Department of the Army is authorized to act on behalf of the Secretary of Defense for all functions delegated by the President through Executive Order 12580 which are relevant to this Agreement .

5 .3 Fort Devens is located in the Towns of Ayer, Lancaster, Shirley and Harvard, Massachusetts . Established in 1917, the installation has been owned and operated by the United States through the United States Department of the Army at all times relevant to this Agreement, and presently functions as a training facility . The Facility can be characterized by its undulating terrain and wooded hills .

Divided into three (3) posts, the north post (1500 acres), includes Moore Army Airfield, the waste water treatment plant and training areas . It is separated from the central post by Ayer's Main Street, which crosses Fort Devens East to West ; the central post (2300 acres) contains administrative and support facilities . The south post (5,600 acres), which is separated from the central post by Commonwealth Route 2, contains ranges and training areas . The Nashua River flows through the installation in a South to North direction . One lake and several ponds are located within Fort Devens, as well .

5 .4 Initially Camp Devens, now Fort Devens, was established in 1917 as a temporary training facility for New England area soldiers during World War I . Since that time it has served a variety of functions . For example, in 1922 it was a summer training camp for military groups ; between 1929-1930 it served as a location for test firing rockets ;

between 1931-1940 the facility's name changed to Fort Devens and it became a training installation ; from 1940- 1946 it was an induction center ; from 1946-1952 it was in a care taker status, and was upgraded to a training and induction center during and after the Korean and Vietnam conflicts .

5.5 There are locations within Fort Devens where Hazardous

Substances have been deposited, stored, placed, or otherwise come to be located in accordance with 42 U .S .C .

§ 9601(9) and (14) . Additionally, there have been or may be releases into the environment of Hazardous Substances, pollutants, contaminants or oil at or from the Federal Facility within the meaning of 42 U .S .C . § 9601 (22), §§ 9604, 9606, and 9607 and 42 U.S .C . § 6973 .

5 .6 It has been determined that Fort Devens contains Hazardous Substances deposited, stored, placed, and otherwise located at the Installation in accordance with 42 U .S .C .

§§ 9601(9) and (14) . Additionally, there have been .or may be releases into the environment of Hazardous Substances, pollutants, contaminants or oil at or from the Federal Facility within the meaning of 42 U .S .C . §§ 9601(22), 9604, 9606, and 9607 .

5 .7 In 1988, the Army, under the auspices of the Installation Restoration Program (IRP) commenced a review of Fort Devens starting with a program records search conducted by the Argonne National Laboratory for U .S . Army Toxic and Hazardous Materials Agency (USATHAMA) by C .A . Biang, R . W . Peters, R . H . Pearl and S . Y . Tsai . The search identified various waste, storage and disposal areas on the Installation, including ones that received hazardous wastes, such as organic solvents, pesticides, paint strippers and other industrial wastes . Pursuant to this study, a Master Environmental Plan (MEP) was created in draft form in November, 1989 . These AOC/SA were identified as Solid Waste Management Units (SWMUs) in the Draft MEP Report and in other technical documents, and are enumerated as :

1) Cutler Army Hospital Incinerator

2) Veterinary Hospital Incinerator

3) Intelligence School Incinerator

4) Sanitary Landfill Incinerator

5) Sanitary Landfill

6) Landfill #2

7) Landfill #3

8) Landfill #4

9) Landfill #5

10) Landfill #6

11) Landfill #7

12) Landfill #8

13) Landfill #9

14) Landfill #10

15) Landfill #11

16) Landfill #12

17) Landfill-#13 (Little Mirror Lake)

18) Sanitary Landfill Asbestos Cell

19) Wastewater Treatment Plant

20) Rapid Infiltration Beds

21) Sludge Drying Beds

22) Hazardous Waste Storage Facility

23) Paper Recycling Facility

24) Waste Explosives Storage Bunker

25) Waste Explosives Detonation Range (EOD)

26) Waste Explosives Detonation Range (ZULU I,II)

27) Waste Explosives Detonation Range (HOTEL)

28) Waste Explosives Detonation Range (AREA 14)

29) Transformer Storage Area

30) Moore Army Airfield Drum Storage Area

31) Fire Fighting Training Area

32) DRMO Yard

33) DEH Entomology Shop

34) Former DEH Entomology Shop

35) Former DEH Entomology Shop

36) Former DEH Entomology Shop

37) Golf Course Entomology Shop

38) Battery Repair Area

39) Transformer Area near Building 4250

40) Cold Spring Brook Landfill

41) Unauthorized Dumping Area (Site A)

42) Popping Furnace

43) Historic Gas Station Sites

44) Cannibalization Yard

45) Vehicle Wash Area

46) Training Area 6D

47) MAAF LUST Site (Bldg . 3816)

48) Bldg . 202 LUST Site (waste Oil tank)

49) Bldg . 3602 LUST Site

50) MAAF WWII Fuel Point (Adj . EW Runway)

51) O'Neal Bldg . Spill Site

52) TDA Class III Leak Storage Yard

53) South Post POL Spill Areas

54) Bldg . 2680 (Former Gas Station Site)

Locations 1 through 54 constitute the currently identified Areas of Contamination or Study Areas as defined in Section III, (Definitions) of this Agreement . The Army and EPA will continue to conduct further reviews and surveys to determine what other Study Areas may require remedial Work under this Agreement . New AOCs/SA may be added to this Agreement as they are identified in Paragraph 6 .5 . After a careful review of the above SAs, the Parties have determined that SAs 22 and 23 do not currently pose a threat to human health and the environment, and have been removed from further Work under the terms of this Agreement.

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5 .8 The Draft Master Environmental Plan states that further review shall be conducted by the Army, including but not limited to, the following areas :

a) Historical information and assumptions about the site ;

b) Amending the current AOC/SA prioritization scheme ;

c) Summary of health and safety regulatory requirements ;

d) Potential asbestos contamination of old landfills, if excavation is conducted ;

e) Underground tank storage and releases ;

f) An installation-wide characterization of general hydrogeology, surface water and ground water quality ;

g) Establishment of priority groups to better utilize resources .

5 .9 Attachment I of this Agreement includes a map and a list of AOC/SA .

5 .10 Pursuant to Executive Order 12088, 43 Fed . Reg . 47707, October 13, 1978, the EPA Administrator is required to provide technical advice and assistance to the Secretary of Defense .

5 .11 The Army is the authorized delegate of the President under Executive order 12580 for receipt of notification of Commonwealth ARARs required by CERCLA Section 121(d) (2) (A) (ii) .

DETERMINATIONS

5 .12 The authority of the Army to exercise the delegated Removal authority of the President pursuant to CERCLA § 104, 42 U .S .C . § 9604 is not altered by this Agreement .

5 .13 The actions to be taken pursuant to this Agreement are reasonable and necessary to protect the human health and the environment.

5 .14 On the basis of the facts described above, EPA has determined that :

(a) The Site is a Federal Facility pursuant to CERCLA § 120 (a), 42 U .S .C . § 9620 ;

(b) The Site is a Facility within the meaning of CERCLA § 101 (9), 42 U.S .C . § 9601 (9) ;

Hazardous Substances, pollutants, and contaminants within the meaning of CERCLA §§ 101 (14) and 104 (a)(2), 42 U .S .C . §§ 9601 (14) and 9604 (a)(2) are located at the Site ;

(d) There have been releases and there continue to be releases and threatened releases of Hazardous Substances, pollutants, contaminants or oil into the environment within the meaning of CERCLA §§ 101 (22), 104, 106, and 107, 42 U .S .C . §§ 9601 (22), 9604, 9606, and 9607, at and from the Site ; and, With respect to those releases and threatened releases at the Site, the Army is the responsible person within the meaning of CERCLA § 107, 42 U .S .C .

§ 9607 .

VI . WORK TO BE PERFORMED

6 .1 The Parties agree to perform the tasks, obligations and responsibilities described in this Agreement and the MEP in accordance with CERCLA, CERCLA guidance and policy, the NCP, RCRA and RCRA guidance and policy, Executive Orders 12580 and 11735, and all terms and conditions of this Agreement including documents prepared and incorporated in accordance with Section VII, (Consultation with EPA) . For the purposes of this Agreement only, the Army shall be considered the lead agency . The Army shall be primarily responsible for investigation, design, construction, . and operation and Maintenance (O & M) of all Removal, Response and Remedial Actions at the Site .

6 .2 With respect to integration of past or ongoing Work into Work required by this Agreement, it is the intent of the Parties that documents completed and data generated prior to the Effective Date of this Agreement be utilized as elements of the PA/SI and RI/FS documents required under this Agreement to the maximum extent practicable without violating CERCLA, CERCLA guidance and policy, the NCP, Federal and State ARABS ; and without jeopardizing the technical integrity of any PA/SI or RI/FS based upon such data . The Army need not halt currently ongoing Work, but may be obligated to modify or supplement Work previously done to produce a final product which meets the requirements of this Agreement .

6 .3 The Army agrees to undertake, seek adequate funding for, fully implement and report on the following tasks, if required, with participation of the Parties as set forth in this Agreement and the MEP :

(a) Preliminary Assessment and Site Inspection of the Site and all AOC/SA identified in the MEP by the Parties ;

(b) Remedial Investigations of all Areas of contamination ;

(c) Feasibility Studies for all Areas of Contamination ;

(d) Proposed Plans and RODS for all Areas of Contamination ;

(e) All Remedial Actions, Removals and Remedial Designs for all Areas of Contamination ; and

Operation and Maintenance (O & M) of Remedial Actions at the Areas of Contamination .

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6.4 The Army shall :

(a) Make its best efforts to expedite the initiation of Remedial Actions for the Areas of Contamination ; and

(b) Carry out all activities under this Agreement so as to protect human health and the environment .

6 .5 Any location on the Site which is identified by a Party as an AOC/SA after the Effective Date of this Agreement shall be added to the list of AOC/SA in Attachment I as an additional AOC/SA to be investigated and remediated pursuant to all requirements pertaining to AOC/SA under this Agreement and the MEP .

6 .6 With respect to the Work to be Completed at the Site, the Army agrees that all Work conducted pursuant to this Agreement and the MEP shall be funded by the Army . The Army agrees that it shall conduct, and be responsible for completion of all Work activities required at the Site pursuant to this Agreement and the MEP . The Army shall perform all the Work at the Site . However, the Army reserves any rights it might otherwise have to seek reimbursement from any Person if that Person has contributed to contamination at the Site .

VII. CONSULTATION WITH EPA

Review and Comment Process for Draft and Final Documents

7 .1 Applicability :

The provisions of this Section establish the procedures that shall be used by the Parties to provide each other with appropriate notice, technical support, review, comment, and responses to comments regarding documents and reports, specified herein and in the MEP as either Primary or Secondary documents . In accordance with CERCLA § 120, 42 U .S .C . § 9620, and 10 U .S .C . § 2705, the Army shall be responsible for issuing Primary and secondary documents to EPA and the Commonwealth, unless otherwise agreed to by both Parties in writing . As of the Effective Date of this Agreement, all draft and final reports for any deliverable document(s) identified herein, including any PA/SI, RI/FS and RD/RA documents relating to this Site, prepared prior to the Effective Date of this Agreement, shall be prepared, distributed and subject to dispute in accordance with Paragraphs 7 .2 through 7 .9 below . The designation of a document as "draft" or "final" is solely for purposes of Consultation with EPA in accordance with this Section .

Such designation does not affect the obligation of the Parties to issue documents, which may be referred to herein as "final" as required by law and this Agreement .

7 .2 Process for Primary Document Review :

Primary Documents :

(a)€ Primary documents include those reports, specified in Paragraph 7 .2(b)(i) through (xiv) . Primary documents shall be initially issued by the Army in draft form subject to review and comment by EPA and the Commonwealth . Following receipt of comments on a particular draft Primary document, the Army shall respond to the comments received, and issue a draft Final Primary document subject to Dispute Resolution .

The draft Final Primary document will become the Final Primary document either forty-five (45) days after issuance, if Dispute Resolution is not invoked, or as modified by decision of the Dispute Resolution process .

In the event of a dispute, the Project Managers shall initially use the informal dispute process referred to in Paragraph 13 .3 . With the concurrence of the Parties, a Schedule or Deadline affected by the decision of the informal Dispute Resolution may be

2 2 extended by providing written notice to both Parties .

If, however, no informal decision is reached, the formal Dispute Resolution process shall occur.

(b) As appropriate, the Army shall, for each AOC/SA, complete and transmit draft reports for the following Primary documents to EPA and the Commonwealth for review and comment in accordance with the provisions of this Paragraph :

(i) SI Work Plan ;

(ii) SI Report ;

(iii) Community Relations/Public Involvement Plan ;

(iv) Risk Assessment Work Plan ;

(v) Master Environmental Plan ;

(vi) RI/FS Work Plan (Health and Safety Plan, Quality Assurance Project Plan, Standard Operating Procedures, Scope of Work, Sampling and Analysis Plan) ;

(vii) RI Reports (including Risk Assessment) ;

(viii) FS Report (including Initial Screening of Alternatives, Detailed Analysis of Alternatives) ;

(ix) Proposed Plan ;

(x) Record o£ Decision (ROD) (including No Action Decision),

(xi) Remedial Design/Remedial Action Work Plan ;

(xii) Sixty percent (60%) design of Remedial Action ; (including QA/QC and Contingency Plan) ;

(xiii) Final Remedial Design ; and,

(xiv) Project Close Out Report .

Only the draft Final reports for the Primary documents identified above shall be subject to Dispute Resolution . The Dispute Resolution process is restricted to the Parties (EPA and the Army) . The Army shall complete and transmit draft Primary documents in accordance with the Timetable and

2 3

Deadlines established in Section XIV, (Deadlines and Schedules) of this Agreement .

7 .3 Secondary Documents :

(a) Secondary documents include those reports that are discrete portions of the Primary documents and are typically input or feeder documents . Secondary documents shall be issued by the Army in draft subject to review and comment by EPA and the Commonwealth . Although the Army shall respond to comments received, the draft Secondary documents may be finalized in the context of the corresponding Primary documents ;

(b) The Army shall complete and transmit draft reports for the following Secondary documents to EPA and the Commonwealth for review and comment in accordance with the provisions of this Paragraph . However, as an alternative, the Army may submit Secondary documents as part of other documents in order to better facilitate the review process . The Secondary documents shall include :

(i) Preliminary Assessment ;

(ii) Initial Screening of Alternatives ;

(iii) Detailed Analysis of Alternatives ;

(iv) Sampling and Data results ;

(v) Treatability and Pilot Study Work Plans and Reports ;

(vi) Pre-Remedial Design ;

(vii) Construction QA/QC Plan :

(viii) Pre-Final Remedial Design (95%) ;

(ix) Contingency Plan ;

(x) Hazardous Waste Minimization Plan (AOC/SA specific) ; and,

(xi) Ordnance Detection and Remediation Plan (AOC/SA Specific) .

(c) Although the EPA and the Commonwealth may comment on the draft reports for the Secondary documents listed above, such documents shall not be subject to Dispute Resolution, except as provided by Paragraph 7 .2, hereof . Dates shall be established for the completion and transmission of draft Secondary reports pursuant to Section XIV, (Deadlines and Schedules), of this Agreement .

7 .4 Meetings of the Project Managers on Development of Reports :

The Parties' Project Managers shall meet or confer as necessary approximately every ninety (90) days, except as otherwise agreed to by the Parties, to review and discuss the progress of work being performed at the Site, including progress on the Primary and Secondary documents .

Technical Review Committee (TRC) meetings may satisfy this requirement . The Army shall provide the Commonwealth's Project Manager with advance notice of meetings of the Parties' Project Managers and of the Technical Review Committee . In anticipation of the meeting or conference, an informal progress report shall be distributed by the Army. Prior to preparing any draft report specified in Paragraphs 7 .2 and 7 .3 above, the Parties' Project Managers shall meet to discuss the report results in an effort to reach a common understanding, to the maximum extent practicable . In order to avoid any conflicting schedules, the Parties shall endeavor to schedule meetings during the months of February, May, August, and November .

7 .5 Identification and Determination of Potential ARARs :

For those Primary reports or Secondary documents that consist of, or include ARAB determinations, the Parties' Project Managers shall, prior to the issuance of a draft report, meet to identify and propose, to the best of their ability, all potential ARARs pertinent to the report being addressed .