Contacts
|
DOE/CCNS Consent Decree & Settlement AgreementThe Concerned Citizen's for Nuclear Safety filed a lawsuit against the Department of Energy, and Siegfried Hecker, Director of the Los Alamos National Laboratory in 1994 alleging violations of the Clean Air Act. The parties settled the lawsuit out of court on January 25, 1997. At the end of 2002, all of the Laboratory's responsibilities under the Consent Decree were completed. On October 16, 2003 Judge James Parker, U.S. District Court for the District of New Mexico, ruled that the Consent Decree was terminated. Consent DecreeDOE/CCNS Consent Decree
Settlement AgreementDOE/CCNS Settlement Agreement
Consent Decree TextDOE/CCNS Consent Decree Full TextIN THE UNITED STATES DISTRICT COURT CONCERNED CITIZENS
Civ. No. 94-1039 M/WWD v.UNITED STATES DEPARTMENT
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.
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
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. FUNDING10. 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 PERFORM11. 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 DISPUTES15. 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 RESERVATIONS20. 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 DECREE23. 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. NOTICE24. 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:
XI. COSTS AND ATTORNEYS' FEES25. 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 JURISDICTION28. Subject to the process set out in Section VII (Resolution of Disputes):
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 COMMENT30. 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 DATES31. 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: ______________________ FOR DOE: LOIS J. SCHIFFER JOHN J. KELLY Date:_________________________ by: ______________________ FOR SIEGFRIED HECKER: RODEY, DICKASON, SLOAN, AKIN & ROBB Date:________________________ by: _______________________
SO ORDERED this _________day of _________________, 1997. ___________________________________
SETTLEMENT AGREEMENTThis 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:
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
FOR PLAINTIFFS: LAW OFFICES OF SIMON AND OPPENHEIMER FOR DOE: LOIS J. SCHIFFER JOHN J. KELLY Date:_________________________ by: _________________________ |
Data & Documents
Public NoticesResourcesPublic Involvement |