Nevada Division of Environmental Protection
Bureau of Federal Facilities


FFACO - Legal Agreement



 

 
THE STATE OF NEVADA
DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES,
DIVISION OF ENVIRONMENTAL PROTECTION

AND
THE UNITED STATES DEPARTMENT OF ENERGY

AND
THE UNITED STATES DEPARTMENT OF DEFENSE

IN THE MATTER OF:

FEDERAL FACILITY AGREEMENT

AND
CONSENT ORDER

 
MARCH 15, 1996


TABLE OF CONTENTS

INTRODUCTION

PART I. PARTIES
PART II. STATEMENT OF PURPOSE
PART III. LEGAL AUTHORITY
PART IV. DEFINITIONS
PART V. DESCRIPTION OF APPENDICES
PART VI. ENFORCEABILITY/RESERVATION OF RIGHTS
PART VII. PROGRESS REPORTS
PART VIII. STIPULATED PENALTIES
PART IX. INFORMAL DISPUTE RESOLUTION AND APPEAL PROCEDURE
PART X. EXTENSIONS
PART XI. AMENDMENTS AND MODIFICATIONS
PART XII. CORRECTIVE ACTION INVESTIGATIONS CORRECTIVE ACTIONS
PART XIII. SAMPLING AND DATA/DOCUMENT AVAILABILITY
PART XIV. ACCESS
PART XV. OBLIGATIONS OF DOE AND DoD
PART XVI. NOTIFICATION AND AGENCY COORDINATION
PART XVII. PUBLIC INVOLVEMENT
PART XVIII. RETENTION OF RECORDS
PART XIX. CONVEYANCE OF TITLE
PART XX. SEVERABILITY
PART XXI. CLASSIFIED AND CONFIDENTIAL INFORMATION
PART XXII. FORCE MAJEURE
PART XXIII. MUTUALITY TO DRAFT OF AGREEMENT
PART XXIV. EFFECTIVE DATE OF AGREEMENT
PART XXV. DURATION/TERMINATION
PART XXVI. MERGER AND INTEGRATION
PART XXVII. SIGNATORIES

INTRODUCTION

This Federal Facility Agreement and Consent Order (Agreement) is made and entered into by and among the State of Nevada, acting by and through the Department of Conservation and Natural Resources, Division of Environmental Protection (NDEP), the United States Department of Energy (DOE), and the United States Department of Defense (DoD). The NDEP enters into this Agreement pursuant to its statutory authority to protect the public health and the environment.

The facilities for which DOE has assumed responsibility and which are subject to this Agreement include the Nevada Test Site (NTS), parts of the Tonopah Test Range, parts of the Nellis Air Force Range, the Central Nevada Test Area, and the Project Shoal Area (hereinafter collectively referred to as the facilities). DoD's responsibilities are limited to those areas at the NTS where DoD has conducted activities. The legal description of each facility is provided in Appendix I, Description of Facilities.

The NTS as defined herein does not include those portions of Area 25 (see Appendix I, Description of Facilities, for area location) being used to conduct activities under the Nuclear Waste Policy Act. The parties agree to negotiate in good faith to address any needed environmental restoration for contamination that predates the enactment of the Nuclear Waste Policy Act within the areas excluded from the definition of the NTS as identified in Appendix I, Description of Facilities. This Agreement is not intended to impact or limit the ongoing site characterization of the Yucca Mountain site, which is proposed for spent nuclear fuel and high- level radioactive waste disposal. The parties agree that any activities undertaken by DOE or successor agencies to characterize Yucca Mountain, or to construct, operate, or close a spent nuclear fuel and high-level radioactive waste repository at Yucca Mountain are specifically excluded from this Agreement.

PART I. PARTIES

I.1. The parties to this Agreement are persons as defined in paragraph IV.34 and include the NDEP, DOE, and DoD. NDEP, DOE, and DoD are referred to collectively herein as the parties (parties) to this Agreement.

I.2. DOE and DoD shall provide notice of this Agreement (including all appendices and any amendments) to every successor in interest and to any successor agency prior to any transfer of ownership or operation of the real property subject to this Agreement. The provisions of this Agreement shall be binding on all successors in interest and on any successor agency.

I.3. DOE and DoD shall be responsible for ensuring that their respective contractors conduct their activities in conformance with the requirements of this Agreement. Contractors of each party are not considered parties to this Agreement.

PART II. STATEMENT OF PURPOSE

II.1. The purposes of this Agreement include, but are not limited to:

II.2. This Agreement is not intended to fulfill the Federal Facility Compliance Act requirement for a compliance order addressing the Land Disposal Restriction prohibition for mixed wastes. Land disposal restricted mixed wastes generated as a result of actions taken under this Agreement will be managed in accordance with the Mutual Consent Agreement Between the State of Nevada and the Department of Energy for the Storage of Low-Level Land Disposal Restricted Mixed Waste signed on June 6, 1995, or subsequent permitted treatment, storage, or disposal unit operational requirements, including all applicable requirements of the RCRA, 42 U.S.C. 6901 et seq. The Mutual Consent Agreement covers storage of environmental restoration generated mixed waste, and schedules for treatment of environmental restoration- generated land disposal restricted mixed waste will be established and enforced in accordance with the Mutual Consent Agreement and not as part of this Agreement.

PART III. LEGAL AUTHORITY

III.1. DOE enters into this Agreement pursuant to Section 120(a)(4) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9620(a)(4); Sections 6001 and 3004(u) and 3004(v) of RCRA, 42 U.S.C. 6901 et seq.; the Atomic Energy Act, 42 U.S.C. 2011 et seq.; and Executive Order 12580 "Superfund Implementation."

III.2. DoD enters into this Agreement pursuant to Section 120 of CERCLA, 42 U.S.C. 9620; Sections 6001 and 3004(u) and 3004(v) of RCRA, 42 U.S.C. 6901 et seq.; Executive Order 12580, "Superfund Implementation"; the National Contingency Plan; Section 311 (c) of the Federal Water Pollution Control Act, 33 U.S.C. 1321; and the Defense Environmental Restoration Program, 10 U.S.C. 2701.

III.3. The parties enter into this Agreement pursuant to their applicable authorities and responsibilities, including the Solid Waste Disposal Act, which includes both RCRA and the Hazardous and Solid Waste Act; Chapters 444, 445, and 459 of the Nevada Revised Statutes (NRS) including the Nevada Water Pollution Control Law, NRS 445A.300 et seq., the Nevada Hazardous Waste Law, NRS 459.400 et seq., Chapters 444, 445, and 459 of the Nevada Administrative Code (NAC), the Nevada Administrative Procedure Act, NRS Chapter 233B, as these laws may be amended from time to time, and all other applicable provisions of state and federal law. NDEP specifically retains all of its hazardous waste and clean water authorities and legal rights, both substantive and procedural, both under the authorities delegated by the U.S. Environmental Protection Agency, and under its own laws and regulations as well. DOE does not waive any claim of jurisdiction over matters which may be reserved to DOE by law, including the Atomic Energy Act, 42 U.S.C. 2011 et seq.

III.4. To the extent not inconsistent with federal law, the laws of the state of Nevada shall be applied when interpreting and construing this Agreement. Compliance with the terms and conditions of this Agreement does not relieve DOE or DoD of any responsibility for complying with all applicable federal and state laws and regulations.

PART IV. DEFINITIONS

IV.1. Except as noted in Part IV of this Agreement, the definitions provided in RCRA, the Nevada Water Pollution Control Law, NRS 445.131 et seq., the Nevada Hazardous Waste Law, NRS 459.400 et seq., and their implementing regulations, as appropriate, shall control the meanings of the terms contained in this Agreement.

IV.2. "Administrator" shall have the meaning given in NRS 445.134.

IV.3. "Agreement" shall refer to this Federal Facility Agreement and Consent Order (FFACO) and includes all attachments, addenda, appendices, amendments, and modifications.

IV.4. "Agreement coordinator" shall refer to the individual designated by each party to this Agreement responsible for the overall implementation of the Agreement.

IV.5. "Authorized representative(s)" shall include a party's contractor(s) or agent(s) acting in specifically designated or defined capacities.

IV.6. "Central Nevada Test Area" shall mean the property so described in Appendix I, Description of Facilities.

IV.7. "Clean closure" shall mean the removal of pollutants, hazardous wastes, and solid wastes released into the environment or discharged and/or having the potential of being discharged into waters of the state in accordance with corrective action plans.

IV.8. "Closure in place" shall mean the stabilization or isolation of pollutants, hazardous wastes, and solid wastes, with or without partial treatment, removal activities, and/or post- closure monitoring, in accordance with corrective action plans.

IV.9. "Community Advisory Board" shall mean that formally constituted and chartered board created under the Federal Advisory Committee Act established to provide site-specific recommendations for environmental restoration and waste management activities on the facilities.

IV.10. "Contaminant" shall have the meaning given in NRS 445A.325. DOE asserts that this definition is subject to Part III, Legal Authority.

IV.11. "Corrective action" shall mean an action or series of actions taken to correct deficiencies in the disposal or containment of pollutants, hazardous wastes, and solid wastes to prevent releases and/or potential releases into the environment or discharges and/or potential discharges of such materials into waters of the state in accordance with the approved corrective action plan. A corrective action may range from no action to clean closure.

IV.12. "Corrective action coordinator(s)" shall mean the individual(s) responsible for overseeing daily activities required by this Agreement.

IV.13. "Corrective action decision document" (CADD) shall mean a document that describes the corrective action that is selected as the result of investigation activities and the rationale for its selection. The rationale consists of an analysis of the possible alternatives and may reflect a decision ranging from no action to clean closure.

IV.14. "Corrective action investigation" (CAI) shall mean an investigation conducted by DOE and/or DoD to gather data sufficient to characterize the nature, extent, and rate of migration or potential rate of migration from releases or discharges of pollutants or contaminants and/or potential releases or dicharges from corrective action units identified at the facilities.

IV.15. "Corrective action investigation plan" (CAIP) shall mean a document that provides or references all of the specific information for planning investigation activities associated with corrective action units or corrective action sites. A CAIP may reference information in the optional CAU work plan or other applicable documents. If a CAU work plan is not developed, then the CAIP must include or reference all of the management, technical, quality assurance, health and safety, public involvement, field sampling, and waste management information needed to conduct the investigations in compliance with established procedures and protocols.

IV.16. "Corrective action plan" (CAP) shall mean a plan which is prepared when the corrective action decision document requires a corrective action.

IV.17. "Corrective action sites" (CASs) shall refer to the sites potentially requiring corrective action(s) and may include solid waste management units, or individual disposal or release sites.

IV.18. "Corrective action unit" (CAU) shall mean one or more corrective action sites grouped geographically, by technical similarity, agency responsibility, or for other appropriate reasons, for purposes of determining corrective actions.

IV.19. Corrective action unit work plan (CAU work plan) shall mean an optional planning document that provides information for a CAU or a collection of CAUs where significant commonality exists. This plan may be developed to eliminate redundant CAU documentation and may contain management, technical, quality assurance, health and safety, public involvement, field sampling, and waste management information. This common information will be referenced in the appropriate CAIPs.

IV.20. "Days" shall mean calendar days unless business days are specified. Any submittal that, under the terms of this Agreement, would be due on a Saturday, Sunday, or state of Nevada or federal holiday shall be due on the following business day.

IV.21. "Deadline" shall mean the date by which an enforceable milestone established by this Agreement or other actions or activities specifically identified in this Agreement shall be met. Stipulated penalties may be assessed for failure to meet an established deadline.

IV.22. "Department of Defense" (DoD) shall mean the Office of the Secretary of Defense, Defense Nuclear Agency and/or any predecessor or successor agency(ies) and/or their authorized representatives so designated in writing.

IV.23. "Department of Energy" (DOE) shall mean the U.S. Department of Energy and/or any predecessor or successor agency(ies) and/or their authorized representatives.

IV.24. "Due date" shall mean the date by which a nonenforceable milestone is due.

IV.25. "Enforceable milestone" shall mean a milestone which is enforceable and for which a deadline has been assigned.

IV.26. "Facilities" shall include the Nevada Test Site (NTS), parts of the Tonopah Test Range, parts of the Nellis Air Force Range, the Central Nevada Test Area, and the Project Shoal Area. The NTS as defined herein does not include those areas being used to conduct activities under the Nuclear Waste Policy Act.

IV.27. "Fiscal year" (FY) shall mean the federal fiscal year unless otherwise specified.

IV.28. "Hazardous substance" shall have the meaning given in CERCLA 101, 42 U.S.C. 9601(14), and NRS 459.429. DOE asserts that this definition is subject to Part III, Legal Authority.

IV.29. "Hazardous waste" shall have the meaning given in 42 U.S.C. 6903(5) and NRS 459.430.

IV.30. "Milestone" shall mean an important or critical event, goal, task, and/or activity that must occur in order to achieve the objective(s) for that corrective action unit.

IV.31. "Mixed waste" shall have the meaning given in 42 U.S.C. 6903 (41).

IV.32. "Nellis Air Force Range" shall mean the property so described in Appendix I, Description of Facilities.

IV.33. "Nevada Test Site" (NTS) shall mean the property so described in Appendix I, Description of Facilities.

IV.34. "Parties" shall mean the parties named in Part I, Parties, to this Agreement.

IV.35. "Person" for the purposes of this Agreement shall include DOE, DoD, and NDEP within the definitions of "person" contained in the Nevada Water Pollution Control Law, NRS 445A.300 et seq., and the Nevada Hazardous Waste Law, NRS 459.400 et seq.

IV.36. "Pollutant" shall have the meaning given in NRS 445A.400. DOE asserts that this definition is subject to Part III, Legal Authority.

IV.37. "Project Shoal Area" shall refer to the locality so described in Appendix I, Description of Facilities.

IV.38. "RCRA" shall mean the Resource Conservation and Recovery Act of 1976, Public Law 94-580, 42 U.S.C. Section 6901 et seq., as amended by the Hazardous and Solid Waste Amendments of 1984, P.L. 98-616, as amended by the Federal Facility Compliance Act of 1992, P.L. 102-386, and any other amendments thereto.

IV.39. "RCRA Permit" shall mean a permit issued by NDEP for hazardous waste treatment, storage, and/or disposal units including, as required, post-closure monitoring of such units.

IV.40. "Release" (including past releases) shall have the meaning given in NAC 459.9526 and NAC 445A.345.2 as related to constituents identified in NAC 445A.347.2.

IV.41. "Solid waste" shall have the meaning given in 42 U.S.C. 6903 (27) and NRS 444.490.

IV.42. "State of Nevada Department of Conservation and Natural Resources, Division of Environmental Protection" (NDEP) shall have the meaning given in NRS 445A.350 and NAC 444.576.

IV.43. "Submittal" shall mean every document, report, schedule deliverable, work plan, or other written item to be provided to NDEP pursuant to this Agreement.

IV.44. "Timeframe" shall mean an interval of time over which some action is planned to occur, with or without reference to a beginning or ending date.

IV.45. "Tonopah Test Range" shall mean the property so described in Appendix I, Description of Facilities.

IV.46. "Waters of the state" shall have the meaning given in NRS 445A.415.

PART V. DESCRIPTION OF APPENDICES

V.1. Appendices I-VI are incorporated by reference into this Agreement. Any ambiguity resulting from different language used in an appendix versus the body of this Agreement shall be resolved in favor of terms and conditions found in the body of this Agreement.

V.2. Appendix I, "Description of Facilities," contains the descriptions of each of the facilities covered by this Agreement.

V.3. Appendix II, "Corrective Action Sites/Units," contains a list of all CAUs which have been identified to date and which have not yet been transferred to subsequent appendices or CASs which have not yet been grouped into CAUs. A CAU shall consist of one or more CASs, and each CAS in each CAU will be identified. New CASs/CAUs identified by any of the parties shall be added to Appendix II on a quarterly basis. CAUs shall be grouped in categories and subcategories in accordance with Appendix VI, Corrective Action Strategy. The CAU categories may include:

V.4. Appendix III, "Corrective Action Investigations/Corrective Actions," shall list those CAUs that have been identified and prioritized for CAIs and/or for corrective actions as described in Part XII, Corrective Action Investigations/Corrective Actions. This appendix shall also contain CAU milestones with associated due dates and deadlines.

V.5. Appendix IV, "Closed Corrective Action Units," shall list those CAUs for which all corrective actions have been completed and approved by NDEP in accordance with Part XII, Corrective Action Investigations/Corrective Actions.

V.6. Appendix V, "Public Involvement Plan," is described in Part XVII, Public Involvement. A draft of this appendix shall be submitted within 60 days of the effective date of the Agreement.

V.7. Appendix VI, "Corrective Action Strategy," contains the process for implementing corrective actions pursuant to this Agreement. Processes described in greater detail in Appendix VI, Corrective Action Strategy, than in the body of this Agreement may be in addition to those described herein but shall not be in conflict with the provisions contained in the body of this Agreement.

PART VI. ENFORCE ABILITY/RESERVATION OF RIGHTS

VI.1. Except as described in paragraph VI.2 and paragraph VIII.6, compliance with the terms and conditions of this Agreement shall stand in lieu of any administrative or judicial remedies that may be taken for matters covered by this Agreement.

VI.2. NDEP reserves the right to bring any enforcement action against DOE and/or DoD for noncompliance with the terms and conditions of this Agreement, including actions for the sole purpose of compelling completion of a deficient activity whether or not stipulated penalties are sought.

VI.3. For all matters outside the scope of this Agreement, NDEP, within the scope of its authority, reserves the right to bring enforcement actions against any person.

VI.4. DOE and DoD intend to be legally bound by this Agreement and agree that the terms and conditions of this Agreement are enforceable as provided herein. DOE and DoD consent to NDEP's jurisdiction for the purpose of executing and enforcing the terms and conditions of this Agreement.

VI.5. Nothing in this Agreement shall be construed to affect any criminal investigations or criminal liability of any person(s) for activities at any of the facilities described in Appendix I, Description of Facilities.

VI.6. Nothing in this Agreement shall constitute, or be construed as a release from any claim, cause of action, or demand in law or equity against any individual, firm, partnership, or corporation not directly identified in this Agreement for any liability it may have arising out of, or relating in any way, to the generation, storage, treatment, handling, transportation, release, or disposal of any hazardous substances, hazardous wastes, solid waste or pollutants, found at, taken to, or taken from, any of the facilities that are the subject of this Agreement.

VI.7. The parties reserve their appeal rights as set forth in Part IX, Informal Dispute Resolution and Appeal Procedure.

VI.8. In the event of administrative or judicial action, all parties reserve all rights, claims, and defenses available under law.

PART VII. PROGRESS REPORTS

VII.1. Following the effective date of this Agreement, DOE and DoD shall, on or before the 30th calendar day following the end of each calendar quarter, submit a written or electronic progress report to NDEP that describes the actions taken during the calendar quarter just ended. This information will serve as a partial basis for the discussions at the quarterly meetings discussed in paragraph XII.4.

VII.2. Each progress report shall include:

VII.3. DOE and/or DoD shall, within sixty (60) calendar days of NDEP's request, which is hereby established as the deadline for this activity, provide NDEP with budgets and costs for activities covered by this Agreement.

VII.4. DOE and DoD shall include in their quarterly reports a three-month advance schedule outlining field activities (including the field activities of their respective contractors, subcontractors, operators, and agents), proposed to be implemented under this Agreement. A more detailed schedule shall be provided to NDEP on a bi-weekly basis, and shall provide the specific dates for conducting these activities for the subsequent two-week period, thereby enabling NDEP to select those activities it deems appropriate to observe.

VII.5. The National Defense Authorization Act for 1994, 42 U.S.C. 7274k, (P.L. 103-160, Section 3153) requires DOE to prepare and submit an annual environmental restoration report. DOE shall submit to NDEP a copy of the portions of that report that define the conditions or otherwise relate to the activities being undertaken by the DOE Nevada Operations Office within thirty (30) calendar days of the report's submittal to Congress.

VII.6. Quarterly meetings will be held in part to discuss any issues raised in or by the quarterly progress reports. These meetings will also serve to initiate the prioritization discussions identified in Part XII, Corrective Action Investigations/Corrective Actions. Parties will attempt to resolve issues during the quarterly meetings. Resolution of issues will be documented, and unresolved issues will be discussed at or before the next quarterly meeting.

VII.7. Parties may meet at times other than the quarterly meetings as required, for example if there are events, such as changes in available funding, that might affect milestones, especially if those milestones are in the current fiscal year.

PART VIII. STIPULATED PENALTIES

VIII.1. Stipulated penalties shall be incurred by DOE and/or DoD in the event that DOE and/or DoD fails to meet an established deadline.

VIII.2. In the event DOE or DoD fails to meet an established deadline contained herein, NDEP may assess a stipulated penalty in the amount of $5,000.00 per week for the first week or part thereof of such failure, $10,000.00 per week for the following week or part thereof of such failure, and $15,000.00 per week for the third and each succeeding week for which the failure to meet an established deadline occurs.

VIII.3 NDEP shall notify DOE and/or DoD in writing of any alleged failure to meet an established deadline.

VIII.4. Stipulated penalties will continue to accrue and may be assessed at NDEP's discretion during pursuit of remedies contained in Part IX, Informal Dispute Resolution and Appeal Procedure, except accrual of such penalties shall be suspended during any period of time in excess of fourteen (14) calendar days required by NDEP to render its decision under paragraph VIII.3. DOE and/or DoD are responsible for stipulated penalties only for the time ultimately determined to be deficient, and stipulated penalties are to be paid within thirty (30) days of a final determination of deficiency unless the parties agree to a different schedule.

VIII.5. The provisions of this Part shall not affect DOE's and/or DoD's ability to petition NDEP for an extension of a deadline as appropriate as set forth in Part X, Extensions.

VIII.6. Stipulated penalties for failure to meet established deadlines contained herein are in lieu of statutory penalties otherwise available under the law. For statutory or regulatory violations for actions for which deadlines are not established or outside the scope of this Agreement, all remedies available to NDEP may be invoked while DOE and DoD reserve their authority to use all available defenses.

VIII.7. Payment of any stipulated penalty does not relieve DOE and/or DoD of any other requirements imposed by this Agreement.

VIII.8. Any failure of DOE to remit a stipulated penalty within thirty (30) calendar days after the stipulated penalty is due and payable, unless the affected parties agree to a different payment schedule, shall, to the extent allowed by law, cause the addition of interest on the unpaid balance compounded daily at a rate equal to the rate of interest fixed for 1-year United States treasury bills on the date of the commencement of the action, as reported in the "Federal Reserve Bulletin" published by the Board of Governors of the Federal Reserve System or other commonly used business or financial publication. In the event payment of interest is not allowed by law, DOE shall, to the satisfaction of NDEP, establish the basis of this position.

VIII.9. NDEP's position is that the DoD is required to pay interest in accordance with paragraph VIII.8. DoD's position is that absent express Congressional authorization the United States is immune from paying interest. If, however, a court of proper jurisdiction holds that the DoD is required to pay interest, interest shall be paid in accordance with paragraph VIII.8.

VIII.10. Stipulated penalties that are due and payable shall be paid to the State of Nevada, Division of Environmental Protection.

PART IX. INFORMAL DISPUTE RESOLUTION AND APPEAL PROCEDURE

IX.1. All parties to this Agreement shall make reasonable efforts to informally resolve outstanding issues and/or disputes. During the informal dispute resolution process, the parties shall meet as many times as necessary to discuss and attempt resolution of the dispute. If resolution at the agreement coordinator level cannot be reached, efforts may be elevated to immediate supervisors of the agreement coordinators or, if necessary, to the agency executive level. If resolution cannot be achieved informally, the appeal procedures of this Part may be implemented.

IX.2. In the event DOE and/or DoD are aggrieved by a written determination by the NDEP agreement coordinator or his designee, DOE and/or DoD may appeal the matter as follows:

IX.3. Any of the parties may appeal the final decision of the SEC as provided for in paragraph IX.2.c by filing a petition for judicial review pursuant to NRS 233B.010 et seq.

PART X. EXTENSIONS

X.1. NDEP shall grant a reasonable extension of a deadline upon receipt of a timely written request from DOE and/or DoD and when NDEP determines that good cause exists for the requested extension. Any request for extension shall specify:

X.2. Good cause may exist for an extension for:

X.3. NDEP, in writing, shall grant or deny a written request for an extension within thirty (30) calendar days from the date of receipt of the written request.

X.4. NDEP may grant the extension for less time than originally requested if it determines that the shorter extension is reasonable in light of the good cause.

X.5. If NDEP denies the requested extension, or approves an extension but modifies the length of time requested for the extension, it will include in its written statement of denial or modification an explanation of the basis for its decision.

PART XI. AMENDMENTS AND MODIFICATIONS

XI.1. Amendments to this Agreement may be proposed by any of the parties.

XI.2. Amendments may be proposed for the following reasons, among others:

XI.3. This Agreement shall not be modified unless such modification is in writing and signed by all affected parties. Changes to Appendix V, Public Involvement Plan, and the movement of CAUs between appendices as specified in Part V, Description of Appendices, and as specified in Part XII, Corrective Action Investigations/ Corrective Actions, shall not be considered modifications of this Agreement.

PART XII. CORRECTIVE ACTION INVESTIGATIONS/CORRECTIVE ACTIONS

XII.1. Within sixty (60) calendar days following the signing of this Agreement by the last party to do so, the parties shall meet to review Appendices II-IV and concur on the classification of all presently identified CAUs to insure all known CAUs are placed in the appropriate appendix, and where appropriate, due dates and deadlines established for existing and proposed activities. Following this initial meeting, the quarterly meeting process outlined in paragraphs XII.3 and XII.4 will begin.

XII.2. Appendix III, Corrective Action Investigations/Corrective Actions, will initially reflect current prioritization of CAUs based on previous discussions with NDEP and/or the Community Advisory Board in developing the budgets and priorities for FY 96 and FY 97. Following the initial prioritization, new CAUs will be prioritized based on assessment of risk, as well as agency, regulator, and stakeholder input (including the Community Advisory Board), according to the process described in Appendix VI, Corrective Action Strategy.

XII.3. The parties shall review and update Appendices II through IV as required at quarterly meetings. The appendices shall be updated at each meeting to:

XII.4. Following the transfer of a CAU from Appendix II, Corrective Action Sites/Units, to Appendix III, Corrective Action Investigations/Corrective Actions milestones, associated due dates and deadlines may be proposed by DOE and/or DoD but shall be established by NDEP according to the following quarterly meeting schedule listed in paragraphs

XII.5. One (1) milestone, with an associated due date or deadline, beyond FY+2 will be established for the completion of UGTA. In addition, at any one time, one (1) other milestone, with an associated due date or deadline, besides the completion milestone can be established for UGTA beyond the FY+2 window. Once this other milestone moves into the FY+2 window, an additional milestone beyond FY+2 can be established such that two outyear milestones (one of which is the completion milestone) can always exist for UGTA. These milestones, established beyond the FY+2 window, will be based on assumptions used for planning and understandings of the CAUs at the time of their establishment. If the assumptions or understandings change, the milestones may be reevaluated. The parties recognize that current assumptions, as stated in Appendix VI, Corrective Action Strategy, are preliminary and may change as additional technical information is acquired.

XII.6. The timeframes for submittals, activities, and tasks shall be established in the appropriate planning documents and may be bounded by the deadlines established in Appendix III, Corrective Action Investigations/Corrective Actions.

XII.7. Once a CAI has been completed, DOE or DoD shall submit a CADD, which includes evaluation of alternatives, to NDEP for its evaluation. Prior to approving proposed actions, NDEP may seek public comment which includes input from the Community Advisory Board. If a corrective action is required, a CAP will be prepared to guide the subsequent corrective action.

XII.8. NDEP shall, within thirty (30) calendar days of receipt of a submittal, unless otherwise specified in this Agreement, provide:

XII.9. Upon completion and NDEP approval of the corrective actions, Notices of Completion shall be transmitted to DOE and/or DoD as appropriate and the CAU will move to Appendix IV, Closed Corrective Action Units. Appendix IV will also identify which CASs or CAUs require long-term monitoring.

PART XIII. SAMPLING AND DATA/DOCUMENT AVAILABILITY

XIII.1. The timeframes for the initial availability of any quality-assured results from sampling and monitoring shall be identified in the CAU plans and CAP schedules for each CAU. DOE and/or DoD shall make available existing quality-assured data from sampling, tests, and other activities generated pursuant to this Agreement within thirty (30) calendar days following a request. This requirement is hereby established as the deadline pursuant to this Agreement. NDEP may request all sampling data (including raw data), to be incorporated into the submittal.

XIII.2. NDEP, at its request, shall be provided split or duplicate samples of all samples collected by DOE and/or DoD pursuant to this Agreement. NDEP shall provide, upon request of any parties corrective action coordinators, split or duplicate samples of all samples collected by NDEP pursuant to this Agreement. Any party requesting split or duplicate samples from another party shall provide its own sample container(s) at the time of the sampling event and is responsible for the management and analysis of any such samples.

XIII.3. NDEP may inspect and have copies provided, subject to restrictions relating to classification and other applicable privileges, any and all records, files, photographs, documents, and other writings (including sampling and monitoring data), pertaining to work undertaken, or planned to be undertaken, pursuant to this Agreement. Originals shall remain in the custody of DOE, DoD, and their respective contractors.

PART XIV. ACCESS

XIV.1. Subject to DOE and/or DoD security requirements, applicable health and safety plans, and health and safety officers' instructions, NDEP personnel, with appropriate safety and security clearances, shall have authority to enter CAU work sites and DOE and DoD locations during normal business hours with or without advance notification. Following notification of DOE and/or DoD, NDEP shall to the extent authorized by law have authority to enter contractor locations to review applicable records and information. Access may be sought for the following purposes among others:

XIV.2. Escorts of NDEP personnel to restricted areas where work is ongoing at a CAU shall not be required where facility/locality-specific security, health, and safety requirements are understood and adhered to by the unescorted NDEP personnel. Unescorted NDEP personnel shall sign a release of liability before undertaking any unescorted visit of a restricted site.

XIV.3. No reasonable access shall be denied NDEP personnel with appropriate certifications and clearances on Agreement-related business. If access is denied, the stated reasons for any denial of access to NDEP personnel to any of the facilities or to any of the localities of any of the CAUs shall be provided to NDEP within one (1) business day.

XIV.4. To the extent that compliance with this Agreement requires access to property administered or owned by parties other than DOE, such as the Air Force, other federal entities, and private parties, DOE shall use the maximum extent of its influence and authority to obtain access agreements for DOE, NDEP, and the authorized employees and contractors of each of the parties. DOE shall provide a certified copy of any such signed access agreements to NDEP within ten (10) calendar days of DOE receipt of the document. As appropriate, DOE may negotiate the inclusion of such access agreements as provisions to existing Memoranda of Understanding with other federal entities. Activities conducted under this Agreement on Air Force-administered lands will be scheduled on a non-interference basis with ongoing Air Force activities.

XIV.5. With respect to non-DOE property upon which monitoring wells, pumping wells, treatment units, or other related systems are to be located, DOE shall use its best efforts to obtain access agreements that provide:

PART XV. OBLIGATIONS OF DOE AND DoD

XV.1. DOE and DoD shall take all necessary steps as set forth in paragraphs XV.8 through XV.11 to obtain timely funding to meet their obligations under this Agreement through consultation with the parties and the submission of timely budget requests.

XV.2. Such obligations include, but are not limited to, updates to Appendix II, Corrective Action Sites/Units, the corrective action investigation/corrective action activities identified in Appendix III, any monitoring required pursuant to Appendix IV, the Public Involvement Plan activities required pursuant to Appendix V, and support of NDEP's administrative and regulatory activities to be performed in conjunction with oversight of corrective action activities required by this Agreement.

XV.3. The base obligation of DOE and DoD required for NDEP to oversee activities related to this Agreement shall be determined by NDEP on a yearly basis, and transmitted to DOE and DoD in a timely manner prior to the start of each state fiscal year as authorized by NRS 459.565 and NDEP implementing policy and procedure(s). In addition, NDEP shall at the same time transmit estimates of its base obligations for the four succeeding out years to assist DOE and/or DoD in their respective long-range planning. In accordance with sections XV.4 and XV.5, DOE and DoD agree to pay fees and service charges, consistent with 6001 of RCRA (42 U.S.C. 6961), at a rate which would be assessed for similar activities on any person for which NDEP provides oversight of corrective action activities under applicable state law. If the parties disagree on the fees and service charges, Part IX, Informal Dispute Resolution and Appeal Procedure, may be invoked.

XV.4 On an annual basis, NDEP shall submit its estimated fee(s) for its obligations to be incurred to DOE. DOE shall in turn, within thirty (30) calendar days after October 1 of each year unless otherwise agreed, make a deposit with NDEP sufficient to meet that obligation for NDEP oversight of DOE activities.

XV.5. Reimbursement of costs/fees associated with services/ oversight of DoD's corrective action investigation and/or corrective action activities shall be recoverable by NDEP through the Defense/State Memorandum of Agreement and Cooperative Agreement (DSMOA/CA). These services/oversight and accounting procedures, including procedures for NDEP reimbursement, will be in accordance with the DSMOA/CA. In the event that the DSMOA/CA Program is modified, altered, ended or it fails to meet services/oversight costs/fees, DoD shall remain liable for payment of these costs/fees with appropriated Defense Environmental Restoration Act (DERA) funds.

XV.6. NDEP's estimate of its regulatory oversight obligational requirements for each successive year shall take into account any projected differences between the previous year's estimated obligational requirements and the actual regulatory oversight obligations incurred by NDEP that year and will be submitted on or before April 1 of each year to the appropriate party. By September 1 of each year, all reconciliation for the prior state FY will have been accomplished.

XV.7. In accordance with the DOE and/or DoD's respective rules and policies applicable to the release of budgetary/contracting information in effect at the time of the signing of this Agreement, DOE and DoD shall make the scope of work and the budgets to be used in implementing the terms of this Agreement available to NDEP. Submittal of the scope of work and budgets will occur in conjunction with the establishment of milestones and priorities as identified in Part XII, Corrective Action Investigations/Corrective Actions. Upon request by NDEP and in accordance with applicable restrictions, DOE and DoD shall also provide to NDEP the identity, scope of work, and Agreement- related restoration budgets of any entity or agency performing work related to this Agreement.

XV.8. Prior to the annual submission of DOE/NV's and DoD/NV's budget requests to their respective Headquarters, DOE for its FY+2 budget, and DoD for its five-year planning budget, NDEP shall be given the following:

XV.9. DOE shall, to the extent it deems appropriate, revise its FY+2 budget requests and supporting documents to address or resolve NDEP's comments and recommendations prior to transmittal to the Headquarters. DOE shall forward to its Headquarters in its budget requests any comments not fully resolved to the satisfaction of all parties and any additional activities identified by NDEP along with the projected budget requirements for such activities.

XV.10. DOE Headquarters shall forward to the Office of Management and Budget for consideration, its FY+2 budget requests along with any unresolved comments and additional activities with related budget requirements identified by NDEP pursuant to paragraph XV.9.

V.11. In accordance with established Department of Defense policy as of the date of the signing of this Agreement, DoD Headquarters shall forward its FY+2 restoration budget requests, which will identify activities mandated by regulatory considerations to the Deputy Under Secretary of Defense, Environmental Security (DUSD)(ES)for consideration. DUSD(ES) is responsible for consolidating Defense Agency submissions and forwarding this along with all other Defense Service requests to the Under Secretary of Defense Comptroller for incorporation into the President's Budget Request.

XV.12. NDEP agrees not to release confidential budget information to anyone prior to submission by the President of his Budget Request to Congress, unless authorized by DOE or required to do so by court order. DOE may seek to intervene in any proceeding brought to compel or enjoin release of this information. If allowed to intervene, DOE shall assert its interest in and the legal basis for maintaining the confidentiality of this information.

XV.13. DOE and DoD will provide to NDEP sections of the President's Budget Request to Congress pertaining to the facilities' environmental restoration programs in a timely manner after submittal by the President to Congress. DOE and DoD shall notify NDEP of any differences between the proposed budget requests submitted in accordance with paragraph XV.9 and the actual requests included in the President's Budget Request to Congress.

XV.14. If funding has been requested as described in paragraphs XV.8 through XV.11 and in the event that the U.S. Congress has failed to appropriate the funds so requested for Agreement milestones, the parties shall review the level of presently available appropriated funds and the estimated cost of meeting all obligations and requirements under this Agreement. DOE and/or DoD shall transmit to NDEP for its review a proposed alternate schedule and level of activities to satisfy the terms and conditions of this Agreement. If agreement cannot be reached on an alternate schedule and if NDEP does not approve a modified alternate schedule and level of activity, should DOE and/or DoD choose to appeal, the appeal procedure contained in paragraph IX.2 will be followed.

XV.15. If DOE and/or DoD fail to comply with the terms of this Agreement (including payment of NDEP oversight costs), NDEP may pursue all available remedies to ensure performance and compliance.

PART XVI. NOTIFICATION AND AGENCY COORDINATION

XVI.1. Documents shall be sent to NDEP in a manner designed to be received by the date due in either the Carson City or Las Vegas office. Formal requests by any party to this Agreement of any other party to this Agreement shall be in writing.

XVI.2. Unless otherwise specified by written notice to the agreement coordinators of DOE and DoD, any report, document, or submittal provided to NDEP, pursuant to a milestone or deadline identified in or developed under the provisions of this Agreement, shall be sent to:

with an additional copy provided concurrently to:

XVI.3. Unless otherwise specified by written notice from DOE to the agreement coordinators of the other parties, documents sent to DOE relating to this Agreement shall be sent to:

with an additional copy provided concurrently to:

XVI.4. Documents sent to DoD shall be sent to the attention of the DoD agreement coordinator as follows, unless DoD specifies otherwise by written notice to the corrective action coordinators of the other parties:

with an additional copy provided concurrently to:

XVI.5. Within thirty (30) calendar days of the effective date of this Agreement, the parties shall notify each other in writing of the names and addresses of their respective agreement coordinators and corrective action coordinators and their designees who shall be the usual day-to-day points of contact for DOE and DoD respectively.

XVI.6. Each corrective action coordinator shall be responsible for overseeing the day-to-day implementation of the provisions of this Agreement for his/her respective party.

XVI.7. Each agreement coordinator works with the party's corrective action coordinator(s) and shall be responsible for assuring that all communications from the other parties are appropriately disseminated and processed within his/her own organization.

XVI.8. Changes in any of the parties' Agreement coordinators or corrective action coordinators and their designees shall be followed by written notification to the other parties within ten (10) calendar days following the change(s).

XVI.9. The NDEP corrective action coordinator and his/her designees shall have the authority to, among other things:

XVI.10. The DOE and/or DoD corrective action coordinators and their representatives may implement modifications to the field work to be performed pursuant to an approved work plan and will notify NDEP of such action. This does not relieve either DOE or DoD of their respective requirements to meet the performance objectives of the approved work plan.

PART XVII. PUBLIC INVOLVEMENT

XVII.1. Appendix V, Public Involvement Plan, shall contain a mechanism for continually providing information and for actively seeking public input (including input from the Community Advisory Board), concerning DOE and DoD activities undertaken pursuant to this Agreement.

XVII.2. The Public Involvement Plan's objectives include, among others:

XVII.3. At a minimum, public reading rooms shall be located within the two major population centers in the state, one in the north and one in the south. Based on continuing public input, the parties shall annually evaluate the need for additional public reading rooms.

XVII.4. The public reading rooms shall contain the following, when prepared:

PART XVIII. RETENTION OF RECORDS

XVIII.1. DOE and DoD shall establish and maintain a compilation of all work plans, data reports, numerical models, numerical model results, monitoring results, and other writings generated pursuant to this Agreement in accordance with DOE and DoD records retention procedures.

XVIII.2. Such information shall be available to NDEP upon request and will form part of the basis for information to be included in the NDEP's Administrative Record, which includes, but is not limited to, those documents cited in paragraph XVII.4. NDEP shall maintain the Administrative Record in accordance with the requirements of NRS Chapter 239.

XVIII.3. DOE and DoD shall notify NDEP at least one hundred eighty (180) calendar days prior to the proposed destruction or disposal of any documents or records described in this part.

PART XIX. CONVEYANCE OF TITLE

XIX.1. No conveyance of title, easement, or other interest in any of the facilities on which any containment system, treatment system, monitoring system, or other construct is installed or implemented or may be installed or implemented pursuant to this Agreement, shall be consummated by DOE and/or DoD and/or any contractor and/or subcontractor to DOE and/or DoD respectively, without provision for continued maintenance of any such system or other response action(s).

XIX.2. At least one hundred twenty (120) calendar days prior to any such proposed conveyance, DOE and/or DoD shall notify NDEP of the provisions made for the continued operation and maintenance of any system(s) installed or implemented pursuant to this Agreement.

PART XX. SEVERABILITY

XX.1. If any provision of this Agreement (which may include any activity conducted pursuant to this Agreement) is ruled invalid, unenforceable, unlawful, or unconstitutional by a court of competent jurisdiction, the remainder of this Agreement (including other activities taken there under) shall not be affected by such ruling.

PART XXI. CLASSIFIED AND CONFIDENTIAL INFORMATION

XXI.1. Personnel designated by NDEP as requiring DOE "Q" clearances who have subsequently been issued such "Q" clearances by the DOE shall be eligible for access to classified information on a "need to know" basis. Only responsible DOE/DoD officials, with the authority to do so, may make the determination of the need to know. Recipients of the information are responsible for protecting all classified information to which they have access or custody. DOE and/or DoD shall provide within ten (10) business days of such refusal a written response to NDEP requests for information related to the Agreement for which they have determined that a need to know is not justified. This requirement is hereby established as a deadline. The response shall be complete and specific as to the information that is nondisclosable.

XXI.2. Analytical data and the results of numerical modeling, with the exception of data and modeling results determined to be classified for reasons of National Security, shall not be claimed as nondisclosable.

XXI.3. Those data, documents, records, or files that are nondisclosable pursuant to applicable privileges and laws including the Freedom of Information Act, 5 U.S.C. 552, and the Privacy Act of 1972, 5 U.S.C. 552(a), unless expressly authorized for release by the originating party, shall be handled in accordance with those provisions of law and any implementing regulations. Upon submission of reports, letters, or other Agreement-related writings to NDEP, DOE or DoD shall identify any materials determined by DOE or DoD to be exempt from public disclosure pursuant to the Freedom of Information Act and to the extent required by state law, such materials shall be handled as exempt from public disclosure by NDEP. NDEP will notify the appropriate party within 30 days of its intent to release the information should a determination to release the information be made.

PART XXII. FORCE MAJEURE

XXII.1. A Force Majeure shall mean an event arising from unforeseeable factor(s) that is (are) beyond the control of DOE and/or DoD and/or their respective contractors, subcontractors, and/or operators, which causes delay, or prevents the performance of any task specified under this Agreement. Force Majeure may include:

XXII.2. DOE and DoD assert that their ability to meet obligations under this Agreement is subject to the Anti- Deficiency Act, 31 U.S.C. 1341, such that unavailability of funding provides a defense pursuant to this Part. Nothing in this Agreement shall be construed to require a DOE or DoD official to violate the Anti-Deficiency Act. NDEP does not recognize that the Anti-Deficiency Act constitutes a Force Majeure or in any way constitutes a defense or an excuse for failure to comply with the terms and conditions of this Agreement and applicable state and federal laws and requirements. Nothing in this Agreement shall be construed to authorize a DOE or DoD official to violate environmental laws and regulations.

XXII.3. DOE and/or DoD shall bear the burden of establishing that a delay was caused by an unforeseen or unexpected event or occurrence; that the event was beyond the control of DOE and/or DoD; that the event could not have been avoided or overcome by due diligence; and that the event delayed or prevented performance by a date or in the manner required by this Agreement.

XXII.4. To assert a claim of Force Majeure, DOE and/or DoD shall provide verbal notification to the state agreement coordinator after DOE and/or DoD becomes aware of the effect of the event on DOE's and/or DoD's ability to perform the obligations of the Agreement creating the claim of Force Majeure, followed by written confirmation. Failure to assert a claim of Force Majeure shall constitute a waiver of DOE's and/or DoD's right to dispute any denial of an extension request or assessment of stipulated penalties on the basis of the event giving rise to the alleged Force Majeure.

XXII.5. NDEP shall transmit to DOE and/or DoD its written acceptance, acceptance in part, or rejection of DOE's and/or DoD's claim of Force Majeure within fourteen (14) calendar days of receipt of the written notice of claim. If DOE and/or DoD disagree with NDEP's rejection on such claim, the dispute resolution and appeal process contained in Part IX, Informal Dispute Resolution and Appeal Procedure, may be initiated. For disputes on Force Majeure issues, if the dispute is not resolved during the dispute resolution process set forth in paragraph IX.2, the parties agree that the DOE and DoD may seek judicial review of the decision of the SEC in Federal District Court for Nevada.

PART XXIII. MUTUALITY TO DRAFT OF AGREEMENT

XXIII.1. All terms of this Agreement have been negotiated and mutually drafted by the parties hereto, including consultation with and review by counsel.

PART XXIV. EFFECTIVE DATE OF AGREEMENT

XXIV.1. The effective date of this Agreement shall be the date on which the last party to do so becomes a signatory to this Agreement.

PART XXV. DURATION/TERMINATION

XXV.1. Upon satisfactory completion, as determined by NDEP, of a given milestone in Appendix III, Corrective Action Investigations/Corrective Actions, NDEP shall issue a Notice of Completion to DOE and/or DoD for completion of enforceable milestones.

XXV.2. When a corrective action has been carried out in accordance with the CAP NDEP will issue a Notice of Completion to DOE and/or DoD as appropriate. Following the issuance of a Notice of Completion, the CAU for which the corrective action was carried out shall be listed in Appendix IV, Closed Corrective Action Units, with the list of related CASs.

XXV.3. When all the terms and conditions of this Agreement shall be considered, by NDEP, to have been satisfied by DOE and/or DoD, including satisfactory completion of corrective actions for all CAUs identified for and during the tenure of this Agreement, written notice of the same will be forwarded from NDEP to DOE and/or DoD and such written notice will terminate this Agreement.

PART XXVI. MERGER AND INTEGRATION

XXVI.1. This agreement merges all prior written and oral communications among the parties concerning this Agreement and contains the final and complete agreement reached by the parties unless subsequently amended in accordance with Part XI, Amendments and Modifications.

PART XXVII. SIGNATORIES

XXVII.1. The undersigned representatives certify that they are fully authorized to inter into this Agreement and to execute and legally bind their respective parties hereto.

FOR THE STATE OF NEVADA:

BY: L. H. Dodgion, Administrator
Nevada Division of Environmental Protection
Date 3/26/96

FOR THE DEPARTMENT OF ENERGY:

BY: Terry A. Vaeth, Acting Manager
Nevada Operations Office
4/4/96

FOR THE DEPARTMENT OF DEFENSE:

BY: Garly L.Curtin
Major General, USAF
Director, Defense Nuclear Agency
5/10/96