DOE/CCNS Consent Decree & Settlement Agreement

Consent Decree

DOE/CCNS Consent Decree

• IV.A.4 - Comprehensive Technical Audits
  The first technical audit began on June 23, 1997, and the final report was issued in November 1999. The final report indicates that LANL meets the 10 mrem off-site dose standard but does not meet several technical requirements of 40 CFR 61 Subpart H. Although the Laboratory agrees that technical recommendations made in the RAC final report would enhance the quality of the radionuclide NESHAP program, LANL did not agree that these findings demonstrate noncompliance with the NESHAP regulation during 1996 and did not modify its certification of compliance sent to EPA for that year. The Laboratory implemented most of the technical recommendations contained in the final RAC assessment report. The Laboratory submitted a final report to DOE, and DOE has provided copies to EPA, Region VI, CCNS, and to the Laboratory's Community Reading Room. Copies of the report can be requested.
  
  In May 2000, the second in a series of independent technical audits of the Laboratory's Radioactive Air Emissions Compliance program was initiated. The final report for this second audit was issued on Dec. 13, 2000, at a press conference in Santa Fe. According to the report, the audit team determined that the Laboratory was in compliance with the federal regulations governing radioactive air emissions, 40 CFR 61, Subpart H, for the audit year 1999. Copies of this report, "Independent Technical Audit of the Los Alamos National Laboratory for Compliance with the Clearn Air Act, 40 CFR 61, Subpart H in 1999," can be also requested.
  
  In May 2002, the third in a series of independent technical audits of the Laboratory's Radioactive Air Emissions Compliance program was initiated. The final report for this third audit was issued in October 2002. According to the report, the audit team determined that the Laboratory was in compliance with the federal regulations governing radioactive air emissions, 40 CFR 61, Subpart H, for the audit year 2001.
  
  The audit team also concluded that there were no substantive deficiencies requiring corrective actions that justified having a fourth audit under the Consent Decree. Therefore, the auditor determined that the audit requirements under the Consent Decree have been met and are concluded with this report. Both a copy of the report (pdf) and information on the Radioactive Air Emissions Compliance Project are available online.
• IV.A.5 - Payments to the Treasury
  The Department of Energy has paid $150,000 to the Treasury of the United States.
• IV.A.6.1 - Environmentally Beneficial Projects - AIRNET
  The 4 Area G stations were operated for the required 5 years with the same requirements that apply to Subpart H compliance stations. Quarterly raw data and analysis reports were sent to CCNS and the LANL reading room. These AIRNET data are available on this web site.
• IV.A.6.2 - Environmentally Beneficial Projects - Thermoluminescent Dosimeters (TLDs)
  All additional TLDs were operated in the required locations for the required 5 years. The two year's of independent TLD monitoring was completed at the end of calendar year 1999. Quarterly raw data and analysis reports were sent to CCNS and the LANL reading room. TLDNET data are available on this website.
• IV.A.6.3 - Environmentally Beneficial Projects - NEWNET
  The NEWNET system was operated for the required period through September 30, 2002. A Spanish translation of the web site came online June 1998.
• IV.B.7 - Siegfried Hecker - President's Council on National Laboratories
  Dr. Hecker has used the influence of his office and his best efforts to persuade the University of California ESH Panel to allocate one day of each annual visit to New Mexico to hear environmental issues related to LANL. The ESH panel conducted this meeting on July 31, 1997 during their scheduled visit to New Mexico.
• IV.B.8 - Siegfried Hecker - Meeting with CCNS
  Through mutual agreement, Dr. Hecker and CCNS met on July 29, 1997, regarding the protection of employees from retaliation or harassment for voicing environmental concerns and regarding CCNS' environmental concerns. Tom Todd, Manager of the DOE Los Alamos Area Office, also attended this meeting.
• IV.B.9 - Siegfried Hecker - Community Meetings
  A series of public meetings has been initiated by Dr. Hecker. The first public meeting was held on June 17, 1997, at the St. John's College in Santa Fe. The format of the initial meeting was an environmental fair while the remainder have been panel style, providing ESH subject matter experts on many environmental issues for discussions with the public. The second meeting focused on contamination in water and sediments (as requested by public input from the 1st meeting) and was held in Los Alamos on September 24, 1997. The subject of the third meeting was updated information on thyroid cancer and brain tumors in Los Alamos County. The 3rd meeting was held in Los Alamos on November 5, 1997. A 4th meeting was held at the Pueblo de San Ildefonso on December 3, 1997, for discussion on the environmental restoration program. Meetings were held in 1998 on environmental monitoring, the independent audit of the LANL rad-NESHAP program, wildland fire management and the Threatened & Endangered Species Management Plan.
  
  During 1999, the Laboratory held three public meetings. The first one of these meetings titled "Environmental Monitoring" was held in April 1999 in Espanola. A second meeting, "High Explosives Contamination in the Ground Water," took place in June 1999 in Los Alamos. The third meeting, "Cancer Trends in Los Alamos," was held in Los Alamos in July 1999.
  
  During 2000, the Laboratory held two public meetings. The first meeting was entitled "Criticality Accidents and Radiation Exposure" and was held in March in Santa Fe. A second meeting, "Wildfire 2000: Los Alamos at Risk," was held on April 26 in Los Alamos. Following the Cerro Grande fire, numerous public meetings were held in conjunction with the NMED, EPA, CCNS and others.

Settlement Agreement

DOE/CCNS Settlement Agreement

• University of New Mexico (UNM) Funding - UNM School of Medicine received $ 150,000 in April 1997 and $150,000 in March 1998. The final payment of $ 150,000 was made in the spring of 1999.
• Radiation Education Training - The course took place in Espanola on September 8-12, 1997.
• Equipment Loan - The equipment for the repository has been purchased. Equipment includes a portable radiation monitor, a gas proportional alpha-beta detector, an alpha scintillator, a GM probe (for monitoring beta-gamma), a sodium iodide probe, and a neutron detector. All of these instruments are standard portable, radiation monitoring equipment. The ORISE training course (September 8-12, 1997) included the specific procedures for the use of this equipment. The Laboratory has purchased a portable gamma spectroscopy instrument for use in this program. A training class for users of this instrument was offered on March 13, 1998. Training classes will be offered on an annual basis or whenever requested.

Consent Decree Text

DOE/CCNS Consent Decree Full Text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

CONCERNED CITIZENS
FOR NUCLEAR SAFETY, INC.
and PATRICK JEROME CHAVEZ,
Plaintiffs,

 

Civ. No. 94-1039 M/WWD

v.

UNITED STATES DEPARTMENT
OF ENERGY and SIEGFRIED S. HECKER,
Defendants.

 

CONSENT DECREE

I. RECITATIONS

Whereas, the parties to this action are Plaintiffs Concerned Citizens for Nuclear Safety ("CCNS") and Patrick Jerome Chavez and Defendants United States Department of Energy ("DOE") and Siegfried S. Hecker;

Whereas, Plaintiffs filed suit against Defendants alleging that Los Alamos National Laboratory ("LANL" or "Laboratory") is not in full compliance with the national emission standard for radionuclides at DOE facilities, set forth at 40 C.F.R. §§ 61.90-61.97 ("Subpart H");

Whereas, on April 2, 1996, the Court granted partial summary judgment to Plaintiffs based upon DOE's admission that 31 of 33 "major" stacks and associated quality assurance programs were not in compliance with Subpart H at the time Plaintiffs filed their motion for partial summary judgment;

Whereas, DOE contends that it achieved full compliance with Subpart H on or about June 3, 1996;

Whereas, DOE further contends that Congress has not waived DOE's sovereign immunity for the assessment of civil penalties against it under the Clean Air Act;

Whereas, Plaintiffs dispute DOE's claim of full compliance and non-waiver of sovereign immunity for the assessment of penalties and, furthermore, seek injunctive relief, an assessment of penalties, an order requiring the performance of environmentally beneficial projects, and recovery of their litigation costs and fees;

Whereas, the parties wish to resolve this action without additional litigation and agree that it is in the public interest to enter into this Consent Decree, without further adjudication of the issues raised in this case: and

Whereas, the parties consider this Consent Decree, when viewed together with the Settlement Agreement dated January 14, 1997 between CCNS and DOE, to be a just, fair, adequate and equitable resolution of these issues.

NOW THEREFORE, before the taking of any further testimony, without trial or further admission of any issue of fact or law, and upon the consent of the parties, it is hereby ordered adjudged and decreed that:

 

II. JURISDICTION AND VENUE

1. This Court has jurisdiction over the subject matter of this action and over the parties pursuant to Section 304(a)(1) of the Clean Air Act, 42 U.S.C. § 7604(a)(1), and 28 U.S.C. § 1331.

2. Venue is proper in this Court pursuant to 42 U.S.C. S 7604(c).

 

III. APPLICABILITY

3. This Decree shall apply to and be binding upon the Parties, their members, delegates and assigns. The undersigned representatives certify that they are authorized by the Party or Parties whom they represent to enter in to this Decree and to execute and legally bind that Party or Parties to the terms and conditions of this Decree. Signature by counsel for the Department of Justice on behalf of DOE shall bind the United States to the terms of this Decree.

 

IV. AGREED UPON SETTLEMENT PROVISIONS

A. DOE

 

4. Comprehensive Technical Audits. DOE agrees to contract for, fund and facilitate performance of the comprehensive independent technical audits described in this section.

4.1 Purpose. The purpose of the comprehensive independent technical audits is to verify whether LANL is in full compliance with the Clean Air Act radionuclide NESHAP, 40 C.F.R. § 61.90-61.97 ("Subpart H"), during the term of this Decree.

4.2 Auditor. The technical audits will be conducted by John Till, Ph.D, as the independent auditor. He will have the authority to assemble an auditing team of appropriate, independent individuals. "Independent" means that the auditor and the members of the audit team will have had no previous significant relationship with LANL or CCNS. CCNS' retained consultants in this case, Institute for Energy and Environmental Research, will not serve as members of the audit team.

4.3 Consultation The independent technical audit team is free to consult with CCNS, DOE, or any other entity as it chooses.

4.4 Access DOE agrees to provide the independent audit team with access to facilities and raw data promptly upon request, subject to compliance with reasonable security, safety and scheduling requirements of DOE and LANL. CCNS shall be provided, without charge, with copies of all documents copied for the independent auditor. CCNS may request copies of other data reviewed by the independent auditor. In the event DOE believes the costs of a CCNS document request are not reasonable, pursuant to paragraph 26, the production of documents will be provided only after payment by CCNS of reasonable copying charges. DOE will notify CCNS of any decision to contest the reasonableness of the costs within 10 days of receipt of any request for copies. CCNS may then obtain the copies at its own expense, without waiver of its rights to seek reimbursement from DOE under paragraph 26.

4.5 Schedule of Audits. The independent technical audits will occur on the following schedule:

• a. The first technical audit will commence during calendar year 1997 no later than 90 days after completion of the updated radionuclide inventory currently in progress.
• b. A second technical audit will commence during calendar year 2000. An updated radionuclide inventory will be prepared prior to the commencement of this second audit. The second audit will commence no later than 90 days after completion of the updated radionuclide inventory.
• c. A third technical audit will commence in calendar year 2002 if the independent auditor determines that a third technical audit should be conducted. An updated radionuclide inventory and an updated description of operations and processes at LANL that have changed since the last audit and which involve air emissions regulated under Subpart H will be prepared and provided to the auditor prior to June, 2002. The independent auditor may meet with CCNS and its consultants and with DOE prior to the auditor determining the scope and specific data to be included in the updated description of operations and processes. The independent auditor, based upon review of these documents and upon the results of the second audit, will determine whether, in his independent judgment, a third technical audit should be conducted.
• d. In the event that the third technical audit identifies substantive deficiencies with compliance with Subpart H that the auditor believes require corrective actions, a fourth technical audit will commence no later than the end of calendar year 2003. The scope of the fourth technical audit shall be limited to determining whether the necessary corrective actions identified in the third technical audit have been satisfactorily accomplished.

4.6 Scope of Audits. The scope and depth of the technical audits will be determined by the independent auditor, exercising sound scientific judgment, subject to the cost limits set forth below. The parameters of the audits may include, but are not limited to the following:

• a. analysis of the existing radionuclide monitoring systems.
• b. review of the application of the methodology used to determine the potential effective dose equivalent, including radionuclide inventory and underlying data.
• c. examination of the content and implementation of the quality assurance programs.

Prior to each audit, the auditor will submit to DOE and CCNS a proposed scope of work and budget. If the proposed budget exceeds $100,000, then DOE must approve the budget. DOE's budget approval will not be unreasonably withheld. In the event DOE determines not to approve any submitted budget, it shall initiate the dispute resolution process set forth in Section VII below and, if unsuccessful in resolving the dispute in that forum, shall within five days of exhausting the dispute resolution process, file a motion with the Court to determine whether the proposed budget should be funded. DOE shall pay the reasonable costs, if any, of the independent auditor incurred in any dispute resolution or Court proceeding under this section. In no event shall the cost of the first audit exceed $300,000. In no event shall the cost of the second audit exceed $200,000. In no event shall the cost of the third audit exceed $150,000. In no event shall the cost of the fourth audit exceed $50,000.

4.7 Reports. The independent auditor will issue a report at the end of each audit. Minority opinions within the audit team may be noted in the report. Within 10 days of receipt of each audit report, DOE will provide a copy to EPA Region VI, mail a copy to CCNS and place a copy in the Los Alamos National Laboratory Reading Room. The findings and results of the audits are non-binding.

4.8 Non-interference. The parties will not interfere in the timely, independent, or comprehensive completion of the audits.

4.9 Payment. Invoices from the independent auditor will be submitted monthly to both CCNS and DOE. Within 45 days of approval of each budget submitted by the independent auditor, DOE shall fund an account established and administered by the United States Department of Justice for payment of costs of the independent audit. The account shall be fully funded with the total amount of the approved budget. The reasonable charges of the independent auditor shall be submitted by DOE to the Department of Justice account administrator within 20 days of receipt by DOE, and shall be paid promptly by the Department of Justice.

4.10 FFCA Audits. Pursuant to the Federal Facility Compliance Agreement between DOE and the United States Environmental Protection Agency, DOE is obligated to conduct certain external independent audits ("FFCA Audits") of the programs and procedures used to demonstrate compliance with Subpart H. In the event DOE arranges for FFCA Audits in addition to those provided in this Decree during the term of the Federal Facility Compliance Agreement, CCNS shall be given an opportunity to meet with the FFCA auditor during each such audit.

5. Payments to the Treasury. DOE will make a payment of $150,000 to the Treasury of the United States in compromise of disputed claims for civil penalties in this case under the citizen suit provision of the Clean Air Act.

6. Environmentally Beneficial Projects

6.1 AIRNET In addition to the 17 AIRNET stations operated as Subpart H compliance stations pursuant to the Federal Facility Compliance Agreement between DOE and the United States Environmental Protection Agency, DOE will, for five years from the entry of this Decree:

• a. continue the operation of AIRNET stations 27, 30, 34, and 36, as identified on the handwritten notations on the Structure Location maps, TA-54, provided by DOE and attached to this Decree as Exhibit 1. These stations will be operated to the same standards as a Subpart H compliance station commencing within 30 days of entry of this Decree.
• b. commencing within 6 months after entry of this Decree, operate one additional AIRNET station at TA-33 and one additional AIRNET station located in the greater Santa Fe area. The general location of these AIRNET stations will be determined jointly by DOE and CCNS. These two additional AIRNET stations will operated to the same standards as Subpart H compliance stations.
• c. On a quarterly basis, raw data and analysis from the additional AIRNET stations referred to in subparagraphs a and b above shall be provided to CCNS and a copy placed in the Los Alamos Reading Room. Each quarterly data package will include air sampling data from the previous quarter.

6.2 Thermoluminescent Dosimeters. Thermoluminescent dosimeters ("TLDs") capable of detecting gamma and thermal neutron emissions will be placed at the 17 existing compliance AIRNET stations within 60 days of entry of this Decree. In addition, TLDs will be placed as follows:

• a. Approximately 11 TLDs around the TA-53 facility, including any of its lagoons containing radioactive material.
• b. Approximately 7 Albedo TLDs on the north, east and south sides of TA-18.
• c. Approximately 16 TLDs around TA-50.
• d. Approximately 33 TLDs around TA-54.
• e. Approximately 7 TLDs around TA-16, S-Site.
• f. Approximately 15 TLDs around TA-15 firing sites.

These TLDs will be operated for a period of five years from entry of this Decree. For purposes of quality assurance, for a period of two years from entry of this Decree, DOE will place a second TLD at 10% of the TLD locations identified above, rotated to a different TLD site on a quarterly basis DOE will send these quality assurance TLDs to an independent laboratory for analysis. Data generated from the TLDs and the quality assurance TLDs will be analyzed quarterly. On a quarterly basis, the TLD raw data and analyses and the quality assurance raw data and analyses will be provided to CCNS and placed in the Los Alamos National Laboratory Reading Room. Each quarterly data package will include TLD results from the previous quarter.

6.3 NewNet DOE agrees to operate through September 2002 the current northern New Mexico NewNet system. DOE will make northern New Mexico NewNet data available via a Web site on the Internet in a "near real time" manner, in English and Spanish. The data will be collected continuously and will be made available to the public on the Internet in the same form and at the same time that it is provided to DOE and LANL.

B. Siegfried Hecker

7. President's Council on National Laboratories. Within 30 days of entry of this Decree, Siegfried S. Hecker, while he remains director of LANL, shall use the influence of his office and his best efforts to persuade the Environment, Safety & Health Panel, which advises the University of California's President's Council on National Laboratories, to allocate one day of each annual visit to New Mexico to hear environmental issues relating to the Laboratory. If the Panel allocates time during its annual visit to hear environmental issues, LANL employees, CCNS and other members of the public will be invited to attend. LANL staff shall be made available for follow-up as requested by the Panel.

8. Meeting with CCNS. Within 45 days of entry of this Decree, Mr. Hecker will meet with CCNS to hear CCNS's concerns and suggestions regarding the protection of employees from retaliation or harassment for voicing environmental concerns, and regarding CCNS' environmental concerns. Footnote 1: G. Thomas Todd, in his capacity as Manager of the Department of Energy, Los Alamos Area Office, has agreed to attend this meeting. meeting shall occur within 90 days of entry of this Decree.

9. Community Meetings Mr. Hecker, while he is Director of the Laboratory, shall initiate a program whereby appropriate members of the Laboratory's Environment, Safety & Health technical staff will be made available for discussions relating to environmental issues with interested members of the public on a quarterly basis. These meetings will be announced in advance, and those interested in participating should give reasonable notice of the issues of concern to them so that appropriate personnel can be scheduled to attend. The first such meeting shall occur within 90 days of entry of this Decree.

V. FUNDING

10. Payments or obligations imposed upon DOE are subject to the availability of appropriated funds. No provision of this Decree shall be interpreted as or constitute a commitment or requirement that DOE obligate or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341 or any other applicable law or regulation. DOE represents that the source of funding for its obligations under this Decree shall be annual DOE appropriations for operation of LANL and that fundinq such obligations does not require a specific appropriation from Congress. In the event that sufficient appropriated funding is not available, the Parties will attempt to adjust any affected timetables accordingly. If funding is not received, Plaintiffs may seek available legal and equitable remedies, including termination of this Decree.

VI. INABILITY TO PERFORM

11. If DOE is or may be unable to comply with any requirement of this Decree because of a "force majeure" event, DOE may request of Plaintiffs a modification of that requirement.

12. As soon as practicable after DOE knows that any requirement of this Decree will not be met, DOE shall promptly notify Plaintiffs in writing. Such notice shall describe the cause and duration of the anticipated delay, the measures taken or to be taken to mitigate the anticipated delay, and a proposed revised schedule for meeting the requirement. DOE may also state in such notice that it constitutes a written statement of dispute for purposes of initiating the dispute resolution process.

13. In any judicial proceeding seeking to enforce the terms of this Decree and/or to find DOE in contempt for failure to comply or for delay in compliance with such terms, DOE may raise as a defense that such failure or delay was caused by a "force majeure" event. In any such judicial proceeding, Plaintiffs may seek available legal and equitable remedies, including termination of this Decree.

14. A "Force Majeure" event is defined as any event or circumstance arising from causes beyond the reasonable control of DOE that cannot be overcome by due diligence and that causes a delay in or prevents the performance of any obligation under this Decree.

VII. RESOLUTION OF DISPUTES

15. Each Party shall exhaust the provisions of this Section VII with respect to any potential dispute between them concerning this Consent Decree prior to seeking Court resolution of the dispute.

16. To initiate Dispute Resolution, the disputing Party shall submit to the other Party a written statement setting forth the nature of the dispute, the work affected by the dispute, the disputing Party's position with respect to the dispute, and the information the disputing Party is relying upon to support its position.

17. The disputing Party shall engage the other Party in informal Dispute Resolution. During this informal Dispute Resolution period, which shall not exceed 10 working days, the Parties shall meet as many times as both deem necessary to discuss and attempt resolution of the dispute. If resolution of the dispute is not reached, either party may file a motion with this Court to resolve the underlying dispute. If this Decree places a burden on a party to seek resolution by the Court, that party shall initiate the Court proceeding.

18. The pendency of any dispute under this Section shall not extend the time allowed for performance of the work required by this Decree, except that the time period for completion of any work directly affected by a good-faith dispute shall be extended for at least a period of time equal to the actual time taken to resolve it pursuant to this Section VII. All elements of the work required by this Decree which are not directly affected by the dispute shall continue and be completed in accordance with the Decree.

19. In attempting to resolve any dispute under this section, the Parties may, by written agreement of the party obligated to perform and CCNS, modify or waive the procedures of this section as appropriate, including but not limited to an extension of the times set forth herein. Such modifications will become effective upon subsequent approval by the Court.

VIII. RELEASES AND RESERVATIONS

20. Plaintiffs hereby release, covenant not, to sue and not to bring any civil, or seek any administrative action against the United States or any department or agency thereof, or any past or present officer, director, official employee, agent or contractor of the United States, or the contractor's officers, directors or employees, including the Regents of the University of California, or their successors or assigns, but not including Siegfried Hecker, with respect to all claims for violation of Subparts A and H of 40 C.F.R. Part 61, including civil penalties and injunctive relief, at LANL occurring from March 15, 1990 through the date of entry of this Decree. Plaintiffs further covenant and agree that they will not file suit for alleged violations, if any, occurring after the entry of this Decree until 90 days after the completion of the first independent technical audit described in paragraph 4.5(a) above.

21. Plaintiffs hereby release, covenant not to sue and not to bring any civil, or seek any administrative action against Siegfried Hecker, his successors or assigns, with respect to all claims which were alleged against Mr. Hecker in the First Amended Complaint.

22. Nothing in this Decree shall preclude or restrict any right or authority of the President of the United States contained in 33 U.S.C. § 1323, 42 U.S.C § 6961, 42 U.S.C. § 7418 or 42 U.S.C. § 9620(j) to exempt LANL from any provisions of the Clean Air Act, the Clean Water Act or the Resource Conservation and Recovery Act. Nothing in this Decree shall preclude or restrict the authority of the United States Environmental Protection Agency to enforce provisions of the Clean Air Act at LANL.

IX. USE OF DECREE

23. This Decree was negotiated and executed by the parties in good faith to avoid expensive and protracted litigation and is a settlement of claims and defenses which were vigorously contested, denied and disputed as to validity and amount. This Decree shall not constitute an admission or adjudication with respect to any allegation made by any Party. Moreover, this Decree shall not constitute an admission of any wrongdoing, misconduct or liability on the part of Siegfried S. Hecker, DOE, any of the DOE's officers, or any of the DOE's contractors. Further, this Decree shall not constitute an acknowledgement by Plaintiffs that there was no wrongdoing, misconduct or liability.

X. NOTICE

24. Whenever, under the terms of this Decree, notice is required to be given or documents to be served, the communication shall be hand-delivered or sent by first-class mail on the date it is due, to the followinq persons:

• For Plaintiffs:
  Carol Oppenheimer, Esq.
  Law Office of Simon and Oppenheimer
  P.O. Box 9612
  Santa Fe, NM 87504-9612
• For DOE:
  Alan D. Greenberg
  U.S. Department of Justice
  999 18th Street, Suite 945
  Denver CO 80202
  and
  Lisa Cummings
  Department of Energy
  Office of Counsel
  528 35th Street
  Los Alamos, New Mexico 87544
• For Sieqfried Hecker:
  Jonathan Hewes
  Rodey, Dickason, Sloan, Akin & Robb
  Post Office Box 1888
  Albuquerque, New Mexico 87l03

XI. COSTS AND ATTORNEYS' FEES

25. For any litigation costs incurred by Plaintiffs prior to the entry of this Decree, Plaintiffs reserve any right they may have to seek reasonable costs of litigation, including attorneys' and expert witness fees, against DOE pursuant to 42 U.S.C. § 7604(d). DOE reserves its right to obgect to the award of any such costs and fees.

26. DOE shall pay Plaintiffs' costs, including reasonable expert fees, incurred in monitoring compliance with this Decree, including monitoring the independent audits, pursuant to 42 U.S.C. § 7604(d). DOE reserves the right to contest the reasonableness of charges submitted by Plaintiffs. All bills shall be paid promptly after receipt by DOE, unless DOE contests the charges submitted by Plaintiffs. DOE shall advise Plaintiffs in writing of any amount contested within 30 days of receipt of the charges by DOE, and shall submit for payment monthly any amounts not so contested. After exhaustion of the dispute resolution procedure set forth in Section VII, Plaintiffs may file a motion for payment with the Court, at which time the only issues for determination shall be the reasonableness of the charges. Plaintiffs shall not be entitled under this paragraph 26 to recover attorneys' fees and expert fees incurred in performing their own audit of LANL's compliance with Subpart H.

27. DOE shall pay, in the event Plaintiffs are a substantially prevailing party, pursuant to 42 U.S.C. § 7604(d): (i) Plaintiffs' reasonable costs, including reasonable attorneys' fees and expert witness fees, incurred in enforcing against violations of this Decree, and (ii) Plaintiffs' reasonable costs, including reasonable attorneys' fees and expert witness fees, incurred in other proceedings before this Court and in dispute resolution, including proceedings to interpret the provisions of this Decree, seek payment of any bill or approval of any budget.

XII.SCOPE AND RETENTION OF JURISDICTION

28. Subject to the process set out in Section VII (Resolution of Disputes):

• a. this Court shall retain jurisdiction over this matter for the purposes of enabling the Parties to apply to the Court for any further orders that may be necessary to construe,implement or enforce compliance with the terms and conditions set forth in this Decree;
• b. Nothing in this Decree shall be construed to limit the right of a party to seek modification of this Decree based upon a change in applicable law or upon other appropriate showing.

29. No motion or other proceeding concerning any aspect of this Decree shall be properly filed unless all Parties have been provided with written notice at least five business days before filing same.

XIII. OPPORTUNITY FOR PUBLIC COMMENT

30. The parties agree and acknowledge that final approval and entry of this proposed Decree are subject to the requirements of Section 113(g) of the Clean Air Act, 42 U.S.C. § 7413(g), and the provisions of 28 C.F.R. § 50.7. Clean Air Act Section 113(g) provides that notice of this proposed decree be given to the public, that the public shall have at least 30 days to make any comments, and that the Administrator of the United States Environmental Protection Agency or the Attorney General, as appropriate, must consider those comments in deciding whether to consent to this decree. The requirements of 28 C.F.R. § 50.7 provide for a similar opportunity for public comment prior to entry of a proposed judgment. The Attorney General shall promptly complete this process.

XIII. EFFECTIVE AND TERMINATION DATES

31. This Decree shall be effective upon the date of its entry by the Court.

32. The obligations of this Decree and this Court's jurisdiction over this matter shall terminate upon completion of all requirements of this Decree. This case shall be dismissed with prejudice after termination of this Decree, upon motion by any Party to this Decree. If all requirements of this Decree are completed, the releases set forth in paragraphs 20 and 21 shall survive the termination of this Decree.

 

THE PARTIES SO AGREE:

FOR PLAINTIFFS: LAW OFFICES OF SIMON AND OPPENHEIMER Date:_______________________ by: ______________________
Carol Oppenheimer
P.O. Box 9612
Santa Fe, NM 87504-9612
(505) 988-7420

FOR DOE: LOIS J. SCHIFFER
Assistant Attorney General
Environmental and Natural Resources Division
Date:________________________ by: ______________________
ALAN D. GREENBERG
Trial Attorney
Environmental Defense Section
U.S. Department of Justice
999 18th St., Suite 945 NT
Denver, Colorado 80202
(303) 312-7324

JOHN J. KELLY
United States Attorney
District of New Mexico

Date:_________________________ by: ______________________
JOHN ZAVITZ
Assistant United States Attorney
625 Silver, Suite 400
Albuquerque, New Mexico 87103
(505) 766-3341

FOR SIEGFRIED HECKER: RODEY, DICKASON, SLOAN, AKIN & ROBB

Date:________________________ by: _______________________
Jonathan W. Hewes
Attorney for Defendant Siegfried
S. Hecker
Post Office Box 1888
Albuquerque, New Mexico 87103
(505) 765-5900

 

SO ORDERED this _________day of _________________, 1997.

___________________________________
United States District Judge

 

SETTLEMENT AGREEMENT

This SETTLEMENT AGREEMENT is made and entered into by and between Concerned Citizens for Nuclear Safety ("CCNS") and the United States Department of Energy ("DOE").

Whereas, CCNS filed a Clean Air Act citizen suit against DOE and Siegfried Hecker, Case No. 94-1039M (D.N.M.), which alleges that Los Alamos National Laboratory ("LANL") is not in compliance with the national emission standard for radionuclides at DOE facilities, set forth at 40 C.F.R. §§ 61.90- 61.97 ("Subpart H");

Whereas, on April 2, 1996, the Court granted partial summary judgment to CCNS based upon DOE's admission that 31 of 33 "major" stacks and associated quality assurance programs were not in compliance with Subpart H at the time CCNS filed their motion for partial summary judgment;

Whereas, DOE contends that it achieved full compliance with the Subpart H on or about June 3, 1996;

Whereas, DOE further contends that Congress has not waived DOE's sovereign immunity for the assessment of civil penalties against it under the Clean Air Act;

Whereas, CCNS disputes DOE's claim of compliance and of non-waiver of sovereign immunity and, furthermore, seeks injunctive relief, an assessment of penalties, an order requiring the performance of environmentally beneficial projects and recovery of its litigation costs and fees;

Whereas, the parties wish to resolve this action without additional litigation and agree that it is in the public interest to enter into this Settlement Agreement, without further adjudication of the issues raised in this case; and

Whereas, the parties consider this Settlement Agreement, when viewed together with the Consent Decree lodged January 14, 1997, to be a just, fair, adequate and equitable resolution of these issues.

 

NOW THEREFORE, the Parties hereby agree as follows:

1. University of New Mexico Funding. DOE agrees to provide funding to the University of New Mexico School of Medicine in the amount of $150,000 per year on or before the date 90 days after execution of this Agreement, on that date in 1998 and on that date in 1999, to be used exclusively to enable the University of New Mexico School of Medicine, Masters in Public Health Program, to develop and implement a curriculum for a concentration in environmental health within the Masters in Public Health Program. The environmental health curriculum developed with this funding shall include scientific and policy matters associated with the Clean Air Act and radionuclides.

2. Radiation Education Training DOE agrees to provide a five-day training course during 1997, the cost of which will not exceed $50,000, on the subject of radiation exposure and radiation protection to be taught by instructors from the Oak Ridge Institute for Science and Education. The course will include field work at LANL and training in the use and operation of radiation detection equipment. The course will be offered in Espanola, New Mexico. The following persons will be invited to attend the course:

• a. three persons chosen by CCNS;
• b. Up to two representatives from each of the following government entities, to be chosen by the governmental entities: Los Alamos County, Santa Fe County, Rio Arriba County, the City of Santa Fe and the City of Espanola;
• c. Up to two representatives from each of the following Accord Pueblos to be chosen by the Pueblos: Santa Clara, San Ildefonso, Cochiti, and Jemez.

3. Equipment Loan. DOE will establish a repository of radiation detection equipment at Los Alamos that will consist of standard portable radiation monitoring equipment, e.g., hand-held survey meters capable of detecting alpha and beta radiation, i.e. alpha pancakes and beta probes, as well as meters capable of detecting gamma and neutron radiation. DOE agrees to allow persons who have completed the course described in paragraph 2 to borrow radiation detection equipment from the repository. DOE may establish reasonable procedures to govern the loan and return of this equipment, such as a LANL employee accompanying the borrower, as long as there is no cost to the persons borrowing the equipment, the community or the property owner where the equipment is used. If, through the use of the borrowed standard survey meters, a borrower identifies a radiation concern, DOE agrees to investigate the concern through more sophisticated methods, such as gamma spectroscopy. DOE may first attempt to confirm the concern with the borrower by verifying the results obtained by the use of the standard survey meters. The borrower will be given the opportunity to observe further investigation, subject to reasonable safety and health concerns. DOE agrees to provide the borrower and CCNS with the data obtained from the investigation. DOE shall maintain this equipment loan program through December 31, 2002.

4. Miscellaneous

• a. The parties may jointly modify this Agreement by written stipulation executed by counsel for the parties.
• b. No provision of this Agreement shall be interpreted as or constitute a commitment or requirement that DOE obligate or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341 or any other law or regulation. DOE represents that the source of funding for its obligations under this Agreement shall be annual DOE appropriations for operation of LANL and funding such obligations does not require a specific appropriation from Congress.
• c. In the event that sufficient appropriated funding is not available, the Parties will attempt to adjust any affected timetables accordingly. In the event all required funding is not obtained, CCNS' sole judicial remedy is to revive its claims that were asserted in Concerned Citizens for Nuclear Safety v. DOE. If CCNS elects to revive its claims, CCNS and DOE shall file a joint motion to terminate the Consent Decree entered in that case. The limitations contained in Paragraph 20 of the Consent Decree entered in that case shall not bar CCNS' revived claims. CCNS may recover its reasonable costs of litigation, including attorneys' and expert witness fees, pursuant to 42 U.S.C. §7604(d) in the event it is a substantially prevailing party on its revived claims.
• d. The parties agree and acknowledge that final approval of this Agreement is subject to the requirements of section 113(g) of the Clean Air Act, 42 U.S.C. § 7413(g). Clean Air Act Section 113(g) provides that notice of this proposed agreement be given to the public, that the public shall have at least 30 days to make any comments, and that the Administrator of the United States Environmental Protection Agency or the Attorney General, as appropriate, must consider those comments in deciding whether to consent to this agreement.
• e. The undersigned representatives of each party certify that they are fully authorized by the party or parties they represent to bind the respective parties to the terms of this Agreement. Signature by counsel for the United States Department of Justice on behalf of DOE shall bind the United States of America to the terms of this Agreement. This Agreement will be deemed to be executed and shall become effective when it has been signed by the representatives of the parties set forth below.

FOR PLAINTIFFS: LAW OFFICES OF SIMON AND OPPENHEIMER
Date:_______________________ by: __________________________
Carol Oppenheimer
P.O. Box 9612
Santa Fe, NM 87504-9612
(505) 988-7420

FOR DOE: LOIS J. SCHIFFER
Assistant Attorney General
Environmental and Natural Resources Division
Date:________________________ by: _________________________
ALAN D. GREENBERG
Trial Attorney
Environmental Defense Section
U.S. Department of Justice
999 18th St., Suite 945 NT
Denver, Colorado 80202
(303) 312-7324

JOHN J. KELLY
United States Attorney
District of New Mexico

Date:_________________________ by: _________________________
JOHN ZAVITZ
Assistant United States Attorney
625 Silver, Suite 400
Albuquerque, New Mexico 87103
(505) 766-3341