Covenants for Settling Parties by EPA. Except as specifically provided in Section IX (Reservations of Rights by EPA), EPA covenants not to sue or to take administrative action against Settling Parties pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a), [and Section 7003 of RCRA, 42 U.S.C. § 6973,]7 with regard to the Site.8 With respect to present and future liability, these covenants shall take effect upon the Effective Date. These covenants are conditioned upon the satisfactory performance by Settling Parties of their obligations under this Settlement Agreement. These covenants extend only to Settling Parties and do not extend to any other person. [NOTE: If SFAs are making payments and qualify for peripheral party status at the Site, insert the following covenant. If they do not qualify for peripheral party status, the scope of the covenant will require case-specific discussion.] [Covenant for Settling Federal Agencies by EPA.9 Except as specifically provided in Paragraph 26 (Reservation of Rights by EPA), EPA covenants not to take administrative action against Settling Federal Agencies pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a), [and Section 7003 of RCRA, 42 U.S.C. § 6973,] with regard to the Site.10 With respect to present and future liability, this covenant shall take effect upon the Effective Date. This covenant is conditioned upon the satisfactory performance by Settling Federal Agencies of their obligations under this Settlement Agreement. This covenant extends only to Settling Federal Agencies and does not extend to any other person.]
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Covenants for Settling Parties by EPA. Except as specifically provided in Section IX (Reservations of Rights by EPA), EPA covenants not to sue or to take administrative action against Settling Parties pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a), [and Section 7003 of RCRA, 42 U.S.C. § 6973,]7 with regard to the Site.8 With respect to present and future liability, these covenants shall take effect upon the Effective Date. These covenants are conditioned upon the satisfactory performance by Settling Parties of their obligations under this Settlement Agreement. These covenants extend only to Settling Parties and do not extend to any other person. [NOTE: If SFAs are making payments and qualify for peripheral party status at the Site, insert the following covenant. If they do not qualify for peripheral party status, the scope of the covenant will require case-specific discussion.] [Covenant for Settling Federal Agencies by EPA.9 Except as specifically provided in Paragraph 26 (Reservation of Rights by EPA), EPA covenants not to take administrative action against Settling Federal Agencies pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a), [and Section 7003 of RCRA, 42 U.S.C. § 6973,] with regard to the Site.10 With respect to present and future liability, this covenant shall take effect upon the Effective Date. This covenant is conditioned upon the satisfactory performance by Settling Federal Agencies of their obligations under this Settlement Agreement. This covenant extends only to Settling Federal Agencies and does not extend to any other person.] RESERVATIONS OF RIGHTS BY EPA EPA reserves, and this Settlement Agreement is without prejudice to, all rights against Settling Parties [if SFA, insert: and Settling Federal Agencies] with respect to all matters not expressly included within Paragraph 24 (Covenants for Settling Parties by EPA) [if SFAs, insert: and Paragraph 25 (Covenant for Settling Federal Agencies by EPA)]. Notwithstanding any other provision of this Settlement Agreement, EPA reserves all rights against Settling Parties [if SFAs, insert: and EPA reserves and this Settlement Agreement is without prejudice to, all rights against Settling Federal Agencies,] with respect to: liability for failure of Settling Parties [or Settling Federal Agencies] to meet a requirement of this Settlement Agreement; criminal liability; liability for damages for injury to, destruction of, or loss of natural resources, and for the costs of any natural resource damage assessments; liability based on the ownership or operation of the Site by Settling Parties [or Settling Federal Agencies] when such ownership or operation commences after signature of this Settlement Agreement by Settling Parties [or Settling Federal Agencies]; liability based on Settling Parties’ [or Settling Federal Agencies’] transportation, treatment, storage, or disposal, or arrangement for transportation, treatment, storage, or disposal of a hazardous substance or a solid waste at or in connection with the Site, after signature of this Settlement Agreement by Settling Parties [or Settling Federal Agencies]; [and] liability arising from the past, present, or future disposal, release or threat of release of a hazardous substance, pollutant, or contaminant outside of the Site[.] [; and] [NOTE: Insert Paragraph 26.g if Settling Parties (or SFAs) have not agreed in Section VI (Payment of Response Costs) to compensate EPA for the costs described in Paragraph 26.g through a premium payment or through an Additional Response Costs billing provision as shown in the optional Payment of Additional Response Costs paragraphs in Section VI (Payment of Response Costs).] [liability for performance of response action or for reimbursement of response costs if total response costs incurred or to be incurred at or in connection with the Site by the United States or any other person exceed $______ [insert total response cost estimate upon which Settling Parties’ and SFAs’, if any, payment is based]. Nothing in this Settlement Agreement is intended to be nor shall it be construed as a release, covenant not to sue, or compromise of any claim or cause of action, administrative or judicial, civil or criminal, past or future, in law or in equity, that EPA may have against any person, firm, corporation or other entity not a signatory to this Settlement Agreement. COVENANTS BY SETTLING PARTIES [AND SETTLING FEDERAL AGENCIES] Covenants by Settling Parties. Settling Parties covenant not to sue and agree not to assert any claims or causes of action against the United States, or its contractors or employees, with respect to the Site11 and this Settlement Agreement, including but not limited to: any direct or indirect claim for reimbursement from the EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507, based on Sections 106(b)(2), 107, 111, 112, or 113 of CERCLA, 42 U.S.C. §§ 9606(b)(2), 9607, 9611, 9612, or 9613, or any other provision of law; any claims arising out of response actions at or in connection with the Site, including any claim under the United States Constitution, the [State] Constitution, the Xxxxxx Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, or at common law; or any claim pursuant to Sections 107 or 113 of CERCLA, 42 U.S.C. §§ 9607 or 9613, Section 7002(a) of RCRA, 42 U.S.C. § 6972(a), or state law relating to the Site. [If SFAs, insert the following paragraph.] [Covenant by Settling Federal Agencies. Settling Federal Agencies agree not to assert any direct or indirect claim for reimbursement from the EPA Hazardous Substance Superfund through CERCLA §§ 106(b)(2), 107, 111, 112, 113 or any other provision of law with respect to the Site and this Settlement Agreement. This covenant does not preclude demand for reimbursement from the Superfund of costs incurred by a Settling Federal Agency in the performance of its duties (other than pursuant to this Settlement Agreement) as lead or support agency under the National Contingency Plan (40 C.F.R. Part 300).] [Except as provided in Paragraph 32 (claims against other PRPs) and Paragraph 37 (res judicata and other defenses), the covenants in this Section shall not apply in the event EPA brings a cause of action or issues an order pursuant to any of the reservations in Section IX (Reservations of Rights by EPA), other than in Paragraph 26.a (liability for failure to meet a requirement of the Settlement Agreement) or 26.b (criminal liability), but only to the extent that Settling Parties’ claims arise from the same response action or response costs that EPA is seeking pursuant to the applicable reservation.] Nothing in this Settlement Agreement shall be deemed to constitute approval or preauthorization of a claim within the meaning of Section 111 of CERCLA, 42 U.S.C. § 9611, or 40 C.F.R. § 300.700(d). Settling Parties agree not to assert any claims and to waive all claims or causes of action (including but not limited to claims or causes of action under Sections 107(a) and 113 of CERCLA) that they may have for response costs [if NRD claims are being resolved through this settlement, insert: and for natural resource damages and assessment costs] relating to the Site against [if multiple settlors, insert: each other or] any other person who is a potentially responsible party under CERCLA at the Site. This waiver shall not apply with respect to any defense, claim, or cause of action that a Settling Party may have against any person if such person asserts a claim or cause of action relating to the Site against such Settling Party. [NOTE: If a Settling Party asserts that it has a claim against a PRP within the scope of this waiver that is unrelated to the PRP’s CERCLA liability at the Site, e.g., a claim for contractual indemnification, add an exception for such claim such as the following: This waiver also shall not apply to Settling Party [insert name]’s contractual indemnification claim against [insert name].] EFFECT OF SETTLEMENT/CONTRIBUTION Except as provided in Paragraph 32 (claims against other PRPs), nothing in this Settlement Agreement shall be construed to create any rights in, or grant any cause of action to, any person not a Party to this Settlement Agreement. Except as provided in Section X (Covenants by Settling Parties [and Settling Federal Agencies]), each of the Parties reserves any and all rights (including, but not limited to, under Section 113 of CERCLA, 42 U.S.C. § 9613), defenses, claims, demands, and causes of action that it may have with respect to any matter, transaction, or occurrence relating in any way to the Site against any person not a Party hereto. Nothing in this Settlement Agreement diminishes the right of the United States, pursuant to Section 113(f)(2) and (3) of CERCLA, 42 U.S.C. § 9613(f)(2)-(3), to pursue any such persons to obtain additional response costs or response action and to enter into settlements that give rise to contribution protection pursuant to Section 113(f)(2). The Parties agree that this Settlement Agreement constitutes an administrative settlement pursuant to which Settling Parties [if SFAs, insert: and Settling Federal Agencies] have, as of the Effective Date, resolved liability within the meaning of Sections 113(f)(2) and 122(h)(4) of CERCLA, 42 U.S.C. §§ 9613(f)(2) and 9622(h)(4), and are entitled, as of the Effective Date, to protection from contribution actions or claims as provided by Sections 113(f)(2) and 122(h)(4) of CERCLA, or as may be otherwise provided by law, for the “matters addressed” in this Settlement Agreement. The “matters addressed” in this Settlement Agreement are all response actions taken or to be taken and all response costs incurred or to be incurred, at or in connection with the Site, by the United States or by any other person, except for the State;12 provided, however, that if EPA exercises rights under the reservations in Section IX (Reservations of Rights by EPA), other than in Paragraphs 26.a (liability for failure to meet a requirement of the Settlement Agreement) or 26.b (criminal liability), the “matters addressed” in this Settlement Agreement will no longer include those response costs or response actions [if the settlement includes a natural resource damages settlement include: or natural resource damages] that are within the scope of the exercised reservation.13 The Parties further agree that this Settlement Agreement constitutes an administrative settlement pursuant to which each Settling Party [if SFAs, insert: and each Settling Federal Agency] has, as of the Effective Date, resolved liability to the United States within the meaning of Section 113(f)(3)(B) of CERCLA, 42 U.S.C. § 9613(f)(3)(B). Each Settling Party shall, with respect to any suit or claim brought by it for matters related to this Settlement Agreement, notify EPA in writing no later than 60 days prior to the initiation of such suit or claim. Each Settling Party also shall, with respect to any suit or claim brought against it for matters related to this Settlement Agreement, notify EPA in writing within 10 days after service of the complaint or claim upon it. In addition, each Settling Party shall notify EPA within 10 days after service or receipt of any Motion for Summary Judgment and within 10 days after receipt of any order from a court setting a case for trial, for matters related to this Settlement Agreement. In any subsequent administrative or judicial proceeding initiated by EPA, or the United States on behalf of EPA, for injunctive relief, recovery of response costs, or other relief relating to the Site, Settling Parties [if SFAs, insert: and Settling Federal Agencies] shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon any contention that the claims raised by EPA, or the United States on behalf of EPA, in the subsequent proceeding were or should have been brought in the instant case; provided, however, that nothing in this Paragraph affects the enforceability of the Covenants by EPA set forth in Section VIII. Effective upon signature of this Settlement Agreement by a Settling Party, such Settling Party agrees that the time period commencing on the date of its signature and ending on the date EPA receives from such Settling Party the payment(s) required by Section VI (Payment of Response Costs) and, if any, Section VII (Failure to Comply with Settlement Agreement) shall not be included in computing the running of any statute of limitations potentially applicable to any action brought by the United States related to the “matters addressed” as defined in Paragraph 34, and that, in any action brought by the United States related to the “matters addressed,” such Settling Party will not assert, and may not maintain, any defense or claim based upon principles of statute of limitations, waiver, laches, estoppel, or other defense based on the passage of time during such period. If EPA gives notice to Settling Parties that it will not make this Settlement Agreement effective, the statute of limitations shall begin to run again commencing 90 days after the date such notice is sent by EPA. PROPERTY REQUIREMENTS [NOTE: This Section should be used if any Settling Party is a Site owner or otherwise controls access to the Site and access and/or use restrictions are needed. If access is needed to real property owned or controlled by a Settling Party, use Paragraph 39.a. If land, water, or other resource use restrictions are needed on real property owned or controlled by a Settling Party, use Paragraph 39.b. If EPA has issued a record of decision or an action memorandum that provides for institutional controls (ICs) on real property owned by a Settling Party, then relevant provisions from the remedial design/remedial action consent decree or the removal administrative settlement agreement and order on consent, as appropriate, relating to ICs implementation, plan review and approval, payment of future oversight costs, dispute resolution, etc., may be needed and should be adapted for use in this model. Additional changes to this section of the model will be needed in the event that access or land, water, or other resource use restrictions are needed on or affect a federal facility.]
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Samples: www.epa.gov, www.epa.gov
