UNITED STATES ENVIRONMENTAL PROTECTIO AGENN C

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however that the Settling Parties notify EPA in writing within

twenty-one (21) days after receipt of the disputed bill and that

the Settling Parties pay all undisputed portions of the bill in

accordance with the provisions of this reimbursement section If

EPA determines that the Settling Parties acted in good faith in

invoking dispute resolution concerning a response or oversight

cost the time for payment of the disputed portion of the bill

will be extended until the dispute is resolved interest

however shall accrue on the disputed response or oversight cost

as if no extension of the time for payment had been granted If

the Settling Parties fail to raise a dispute within twenty-one

(21) days of their receipt of the bill the Settling Parties

remain obligated for payment of the entire amount of the bill on

the original payment due date interest shall accrue on any

unpaid portion of the bill from the original payment due date

and EPA may seek stipulated penalties or otherwise act to enforce

the Settling Parties compliance with this section and the Order

Excuses for Delays in Performance

55 With respect to the Settling Parties compliance with any

interim or final time deadline set forth in this Order no

stipulated penalties or other sanctions will be imposed for delay

directly caused by the following which could not have been

overcome by the Settling Parties due diligence (i) an act of

God (ii) any delay caused by the public review and comment

process as provided in the Work Plan and this Order (iii) any

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other cause beyond the control of the Settling Parties provided

however that increases in the cost of performance of the RIFS

shall not excuse such performance nor affect the applicability of

the penalty provisions or other sanctions which are provided for

under this Order Such penalties and sanctions shall be avoided

only if and only to the extent that delays directly caused by

conditions specified in (i) through (iii) above materially

interfered with or prevented the Settling Parties execution of

their responsibilities during the period of such delay The

Settling Parties further agree to use their best efforts to

minimize any delay which may result The Settling Parties

acknowledge that they will have the burden of justifying excuses

for delay in performance under this Paragraph

56 The Settling Parties shall orally notify the EPA RPM within

forty-eight (48) hours in the event that circumstances occur

which the Settling Parties assert should trigger the excuse

provisions of this section and shall identify with specificity

the cause of such delay and the estimated duration of such delay

Within five (5) days after the Settling Parties first become

aware of such circumstances the Settling Parties shall supply to

EPA in writing an explanation of the cause(s) of any actual or

expected delay or noncompliance the anticipated duration of any

delay the measures taken and to be taken by the Settling Parties

to prevent or minimize the delay or correct the noncompliance

and the timetable for implementation of such measures Failure

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to notify EPA in writing shall result in a waiver of the

Settling Parties right to assert that the delay should be

excused under the terms of this section

Dispute Resolution

57 If the Settling Parties object to any EPA notice of

disapproval or decision made pursuant to this Order including

any decision which has resulted in the assessment of stipulated

penalties the Settling Parties shall notify EPA in writing of

their objections within fourteen (14) days of receipt of the

notice EPA shall communicate with the Settling Parties on the

disputed matter and shall have fourteen (14) days from the

receipt by EPA of the notification of objection to reach

agreement If agreement cannot be reached on any issue within

this fourteen (14) day period EPA shall provide a written

statement of its decision and the basis therefor to the Settling

Parties and the Settling Parties shall implement the activities

required by the EPA decision beginning no later than five (5)

days after receipt of the EPA statement Except as specifically

provided herein engagement of a dispute resolution among the

parties shall not be cause for the delay of any work

58 If the Settling Parties object in writing to an EPA

decision involving a substantial modification to the Statement of

Work or a major deliverable an EPA manager above the level of

the Geographic Section Chief within EPA Region I shall mediate

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and resolve the dispute The designated EPA manager shall

determine in his or her sole discretion whether the decision in

fact involves a substantial modification to the Statement of Work

or major deliverable During the pendency of a dispute under

this paragraph the accrual of stipulated penalties which relate

to nonperformance of the work required by the disputed EPA

decision shall be suspended Disputes under this Paragraph shall

in all other respects be governed by Paragraph 57 of this Order

59 In the event that the Settling Parties do not implement the

activities required by the EPA decision the EPA Regional

Administrator may take such civil enforcement actions- against the

Settling Parties as may be provided by statutory or equitable

authorities including but not limited to the assessment of

such civil penalties or damages as are authorized by Sections 122

and 109 of CERCLA In such an event EPA retains the right to

perform additional studies and to conduct a partial or complete

RIFS pursuant to its authority under CERCLA and to recover the

costs thereof from the Settling Parties

Stipulated Penalties for Delays in Performance

60 For each day that the Settling Parties fail to complete a

major deliverable identified in Table 1 of the SOW or to comply

with any time deadline for such major deliverable established

pursuant to this Order the Settling Parties shall pay to EPA and

the State the sums set forth below as stipulated penalties