Document 6bDL65Jn9p7XZn98XqnnYgxn3

FOR SETTLEMENT PURPOSES ONLY - SUBJECT TO Rule 408, FRE Pre-RD Sampling - Key Issues: Agreement in Principle - 9-19-171 Issue TECHNICAL COC's Pre-RD Group Position (as reflected in document revisions 8-23/25 and 8-28-17 Presentation) EPA Position (as of 8-31-17 Call) Focused COC's only Full ROD lists (Table 17) of COC's by media / biota - to be done by Pre-RD Group or through split samples Surface Sediment Sample Numbers Keep SMA and baseline integration with 580 samples EPA wants only randomized baseline sample locations (424 unbiased) Downtown/Upstream Reach 40 sediment samples in combined background (upriver) areas (20 & 20); 25 SMB fish tissue samples Not discussed on call; prior EPA Region 10 position is separate reaches; 60 sediment samples (30 & 30); 40 SMB fish tissue samples (20 in each segment) Comprehensive Package Proposal Agreement in Principle (9-19-17 Meeting) Willing to accept EPA's position to include full list of COC's by media/biota per Table 17 of ROD in Pre-RD Group scope as part of comprehensive package; PDI Report to evaluate data for purpose of limiting list of COC's for future monitoring rounds Willing to accept EPA's position on number of unbiased sample locations as part of comprehensive package Retain combined DTR/USR (one background dataset) with 40 samples. EPA can use them as 20 & 20 if they want to evaluate DTR and USR separately Agreed as per Comprehensive Package Proposal (CPP) Agreed as per CPP Pre-RD Group has agreed to EPA Position to extent reasonably/technically practical: 30 sediment samples and 20 SMB fish tissue samples in each segment (i.e., in each of Downtown Reach and Upstream Reach; for total of 60 sediment samples and 40 SMB fish tissue samples) 1Subject to finalization of definitive documentation and the internal approval process of each of the Pre-RD Group companies. [ PAGE \* MERGEFORMAT] Sierra Club v. EPA 18cv3472 NDCA Tiers 8&9 ED 002061 00115649-00001 FOR SETTLEMENT P JRPOSES ONLY - SUBJECT TO Rule 408, FRE Subsurface Sediment 2 feet sample Not discussed on call; prior Coring increments EPA Region 10 position is 1 foot increments AOC/LEGAL Work Takeover Delete Needs to stay in AOC; Willing to modify so that subject to dispute resolution with Regional Administrator as final decision maker for this particular item Costs No NRD Trustee/Tribal oversight costs; cap on EPA costs at $1.5M; no past costs related to development of EPA's sampling plan ($270K); need clarification on cooperative/technical assistance grants to Tribes Agree on cap at $2.5M; no direct payment for Tribal oversight costs, but could be included indirectly as assistance grants within the cap limit; did not address the past costs Limit to 2 feet intervals; 1 foot intervals are unnecessary and will add time and cost Two feet intervals Agree to leave in AOC subject to dispute resolution, but final decision maker needs to be at EPA HQ (Administrator or Administrator's Designee); work takeover would constitute a termination of the AOC and parties would have no future obligation (including no obligation to fund work taken over by EPA going forward) Agree on $2M cap (reduction in comparison to EPA proposal takes into account that Pre-RD Group is assuming significant increase in costs due to willingness to accept EPA position on threshold technical issues as described above); assistance grants and any past EPA costs are within the cap Work takeover in AOC subject to dispute resolution with final decision by Administrator or Administrator's Designee; in the event of a work takeover, the AOC parties would have no future obligation under the AOC with respect to work taken over by EPA going forward, including no obligation under the AOC (i) with respect to performance of work scope taken over, (ii) to fund work taken over going forward, or (iii) for stipulated penalties on or after the issuance of the work take over notice; work not subject to the takeover (if any) would continue under the AOC $2M cap on payment under the AOC of EPA response costs; cooperative and technical assistance grants related to the Work under the AOC and past EPA response costs related to development of EPA's sampling plan and negotiation of AOC included subject to the cap; EPA costs for work taken over by EPA are excluded Sierra Club v. EPA 18cv3472 NDCA [ PAGE \ * MERGEFORMAT] Tiers 8&9 ED 002061 00115649-00002 FOR SETTLEMENT P JRPOSES ONLY - SUBJECT TO Rule 408, FRE Dispute Resolution Technical disputes No peer review panel; third submitted to party review by CSTAG Chair. impartial peer review panel selected by Under the last EPA draft of CSTAG Chair with the dispute resolution recommendations by provision, all disputes were EPAand decided by the Director or Respondents; any Associate Director of the party can seek a Region 10 Office of reconsideration of Environmental Cleanup with the peer review disputes on a narrow group of panel's deliverables (Work Plan, determination by the QAPP, and Sampling Plan) Administrator's subject to submission to Designee who will CSTAG Chair for evaluation make the final prior to final decision by such decision Director/Associate Director. Work Plan Needs to be agreed and attached to AOC/Statement of Work prior to signing Deliverable post-signing; will agree to a 30-day review for completion Termination of Order Except for certain sections that survive termination, Work requirements terminate when respondents submit PDI Report EPA must agree that Work has been completed; willing to subject that determination to dispute resolution All disputes to be resolved by final decision maker at EPA HQ (Administrator or Administrator's Designee); process for technical disputes will include a review and evaluation by the CSTAG Chair who will submit a report and the Respondents shall have the opportunity to simultaneously provide an evaluation by an independent peer review panel that they establish, all within same, set timeframe; tolling of penalties and deliverables schedule during dispute resolution process Agreement in principle reached on outstanding issues first week of September; Work Plan finalized within 25 days and needs to be agreed and attached to AOC/Statement of Work prior to signing AOC terminates on completion of the Work; disagreement on whether Work has been completed is subject to the dispute resolution provisions Dispute resolution process to provide for initial decision at regional level with right of appeal for final decision by Administrator or Administrator's Designee (no restriction on Administrator's choice of Designee); process for technical disputes will include a review and evaluation by the CSTAG Chair who will submit a report, and such process will provide the Pre-RD Group members with the opportunity to simultaneously submit an evaluation by an independent peer review panel that they establish, all within same, set timeframe; tolling of penalties and deliverables schedule during dispute resolution process Work Plan will be agreed and attached to AOC/Statement of Work prior to signing; Pre-RD Group and EPA shall use their best efforts to finalize the AOC, Statement of Work, and Work Plan within 3 weeks (by October 10) AOC terminates on completion of the Work; process for determining that Work has been completed to be addressed in AOC (e.g., notice/certification of completion by Respondents, subject to review by EPA); disagreement on whether Work has been completed is subject to the dispute resolution provisions Sierra Club v. EPA 18cv3472 NDCA [ PAGE \* MERGEFORMAT] Tiers 8&9 ED 002061 00115649-00003 FOR SETTLEMENT P JRPOSES ONLY - SUBJECT TO Rule 408, FRE Data Usage/Report Critical that included Was not addressed on call Scope Increase Any change to scope must be mutually agreed; no EPA right to unilaterally require additional samples; split-samples limited to QA/QC Was not addressed on call Confirm agreement on data evaluation as set forth in the proposed Work Plan including: - Refinement of the CSM; - Refinement of sediment recovery curves; - Re-calculation of Site-wide and segment-wide surface sediment SWACs; - Assessment of fish home ranges used in the FWM; - Assessment of monitored natural recovery potential; - Evaluation of current (2017/2018) upstream background concentrations; - Update the active remedial footprint; and - Refine understanding of the FWM and update calculations of baseline fish consumption risks Confirm that Pre-RD Group position as reflected in 8-23 AOC mark-up has been accepted PDI Evaluation Report to be provided as set forth in proposed Work Plan (Section 3.3) and shall be subject to EPA review and approval or disapproval, in whole or in part, as provided in the Statement of Work (Section 5.6); disapproval of all or part of the PDI Evaluation Report is subject to the dispute resolution provisions; Work Plan will include language recognizing that data collected is not sufficient to draw conclusions as to the final design for any given SMA and that EPA may dispute whether the data is sufficient to draw specific conclusions for CERCLA purposes Change in scope requires mutual agreement; EPA does not have right under AOC to unilaterally require additional samples; split samples limited to QA/QC. In the event that EPA chooses to do additional work, such additional work will be done outside of the AOC and the costs will not be billed under the AOC Sierra Club v. EPA 18cv3472 NDCA [ PAGE \* MERGEFORMAT] Tiers 8&9 ED 002061 00115649-00004