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Show EP A. All other penalties shall begin to accrue from the date EPA notifies Kennecott of such violation or act of noncompliance. 59. If any dispute over the payment of stipulated penalties is resolved before payment is due, the amount due will be adjusted as necessary. If the dispute is not resolved before payment is due, Kennecott shall pay the full amount of the uncontested costs into the Hazardous Substance Fund as specified above on or before the due date. Within the same time period, Kennecott shall pay the full amount of the contested costs into an interest-bearing scrow account. Kennecott shall simultaneously transmit a copy of both checks to the EPA Enforcement Specialist. Kennecott shall ensure that the prevailing party in the dispute shall receive the amount upon which they prevailed from the escrow funds plus interest within 30 days after the dispute is resolved. If the parties cannot resolve the dispute within 30 days, either Party may invoke the Disput.e Resolution procedures in Section XVII of this Order. 60. Violation of any provision of this Order may subject Kennecott to civil penalties of up to twenty-five thousand dollars ($25,000) per violation per day, as provided in section 106(b)(l) ofCERCL 42 U.S.c. § 9606(b)(l). Kennecott may also be subject to punitive damages in an amount up to three times the amount of any cost incurred by the United States as a result of such violation, as provided in section 107(c)(3) ofCERCLA, 42 U.S.C. § 9607(c)(3). Should Kennecott violate this Order or any portion hereof, EPA may carry out the required actions unilaterally, pursuant to section 104 ofCERCL 42 U.S.C. § 9604, and/or may seek judicial enforcement ofthis Order pursuant to section 106 ofCERCLA, 42 U.S.C. § 9606. 61. In the event that EPA pr-ovides for corrections or modifications to a document to be reflected in a subsequent deliverable and does not require resubmission of that deliverable, stipulated penalties for that interim deliverable shall cease to accrue on the date of such decision by EPA. 62. The imposition of stipulated penalties is in EPA's discretion. EPA may in its discretion impose a lesser penalty or no penalty at all for violations subject to stipulated penalties. EP A agrees that if it seeks stipulated penalties for a violation, EPA shall not seek statutory penalties for the identical violation. Similarly, if EPA seeks statutory penalties for a violation, it shall not seek stipulated penalties for the identical violation. Imposition of the stipulated penalties provisions does not preclude EPA from conducting all or part of the Work because of Kennecott's failure to comply with this Order. Payment of stipulated penalties does not alter Kennecott's obligation to complete performance under this Order. X. RESERV A TION OF RIGHTS 63. Except as specifically provided in this Order, each party reserves all rights and defenses it may have, including assertion of applicable privileges. Additionally, nothing herein shall limit the power and authority of EPA or the United States to take, direct, or order all actions necessary to protect public health, welfare, or the environment or to prevent, abate, or minimize an actual or threatened release of hazardous substances, pollutants or contaminants, or hazardous 15 |
