Consent Decree Between CCNS and DOE, parts VIII though XIII
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: For DOE: and
Lisa Cummings For Sieqfried Hecker:
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):
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: ______________________ 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.
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