SETTLEMENT AGREEMENT BETWEEN CCNS AND DOE

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





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