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:
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






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