United States of America v. Cyprus Amax Minerals Company et al

Filing 20

CONSENT JUDGMENT - Within 30 days after the Effective Date, Settling Defendants shall pay to EPA $1,506,915.01 for Past Response Costs. Within 30 days after the Effective Date, Settling Defendants shall pay NNEPA $8,099.60 for Navajo Nat ion Past Response Costs. Upon entry of this Consent Decree by the Court, this Consent Decree shall constitute a final judgment between and among the United States, the Navajo Nation, and Settling Defendants. Signed by Judge Douglas L Rayes on 05/22/2017. (KAS)

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WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

United States of America,

No. CV-17-00140-PHX-DLR

Plaintiff,

(Related Case No. CV-17-08007-PCT-DLR)

v.

ORDER

Cyprus Amax Minerals Company; and
Western Nuclear, Inc.,
Defendants.

The United States, on behalf of the Environmental Protection Agency, filed an
unopposed motion to enter the parties’ proposed consent decree. (Docs. 18, 18-6.) The
Navajo Nation filed a similar motion in its related suit against Defendants. (Doc. 23, No.
CV-17-08007-PCT-DLR.) The Court granted the motions, finding the consent decree to
be fair, reasonable, and consistent with the objectives of CERCLA.
IT IS ORDERED that the consent decree is hereby entered:

CONSENT DECREE

TABLE OF CONTENTS

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I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
XIII.
XIV.
XV.
XVI.
XVII.
XVIII.
XIX.
XX.
XXI.
XXII.
XXIII.
XXIV.
XXV.
XXVI.
XXVII.
XXVIII.

BACKGROUND ............................................................................................................ 1
JURISDICTION ............................................................................................................. 3
PARTIES BOUND......................................................................................................... 4
DEFINITIONS ............................................................................................................... 4
GENERAL PROVISIONS ........................................................................................... 11
PERFORMANCE OF THE WORK ............................................................................ 13
REMEDY REVIEW..................................................................................................... 19
PROPERTY REQUIREMENTS .................................................................................. 20
FINANCIAL ASSURANCE ........................................................................................ 22
PAYMENTS FOR RESPONSE COSTS ..................................................................... 29
INDEMNIFICATION AND INSURANCE ................................................................ 41
FORCE MAJEURE ...................................................................................................... 43
DISPUTE RESOLUTION ........................................................................................... 45
STIPULATED PENALTIES ....................................................................................... 49
COVENANTS BY THE UNITED STATES ............................................................... 54
COVENANTS BY THE NAVAJO NATION ............................................................. 58
COVENANTS BY SETTLING DEFENDANTS AND SFAS .................................... 61
EFFECT OF SETTLEMENT; CONTRIBUTION....................................................... 65
ACCESS TO INFORMATION.................................................................................... 67
RETENTION OF RECORDS ...................................................................................... 69
NOTICES AND SUBMISSIONS ................................................................................ 71
RETENTION OF JURISDICTION ............................................................................. 75
APPENDICES .............................................................................................................. 75
MODIFICATION ......................................................................................................... 76
NOTICE OF COMPLETION OF WORK ................................................................... 76
LODGING AND OPPORTUNITY FOR PUBLIC COMMENT ................................ 77
SIGNATORIES/SERVICE .......................................................................................... 77
FINAL JUDGMENT .................................................................................................... 78

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ii

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I.
A.

BACKGROUND

The United States of America (“United States”), on behalf of the

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Administrator of the United States Environmental Protection Agency (“EPA”), filed a

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complaint in this matter pursuant to Sections 106 and 107 of the Comprehensive

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Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§

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9606 and 9607, against Cyprus Amax Minerals Company (“Cyprus Amax”) and Western

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Nuclear, Inc. (“Western Nuclear”) (collectively, “Settling Defendants”).

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B.

The Navajo Nation filed a complaint in this matter pursuant to Section 107

of CERCLA and Sections 2403, 2501 and 2503 of the Navajo Nation CERCLA
(“NNCERCLA”), 4 N.N.C. §§ 2403, 2501 and 2503, against Settling Defendants.
C.

The United States and the Navajo Nation (collectively, “Plaintiffs”), in their

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complaint against the Settling Defendants, each seek, inter alia: (1) reimbursement of

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Past and Future Response Costs incurred, in the case of the United States, by EPA and

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other federal agencies, and in the case of the Navajo Nation, by the Navajo Nation,

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including the Navajo Nation EPA (“NNEPA”) and the Navajo Nation DOJ (“NNDOJ”),

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for response actions at the abandoned uranium mine sites and one transfer station in

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Arizona, New Mexico, and Utah, located on Navajo Nation lands, and listed in Appendix

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A (“Mine Sites”), together with accrued interest; and (2) performance of response actions

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by Settling Defendants at the Mine Sites consistent with the National Contingency Plan,

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40 C.F.R. Part 300 (“NCP”).

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D.

Cyprus Amax acknowledges that it is the successor in interest to Climax

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Uranium Company and has a contractual obligation to indemnify Chemetall Foote

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Corporation, the corporate successor to Vanadium Corporation of America and its

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affiliates. Cyprus Amax further acknowledges that Climax Uranium Company,

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Vanadium Corporation of America, or another corporate affiliate of Cyprus Amax was

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historically involved in uranium mining at each of the abandoned uranium mines listed in

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Appendix A except for the Ruby Mines Site and the Proximate Mine Sites. Western

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Nuclear acknowledges that it was historically involved in uranium mining at the Ruby

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Mines Site identified in Appendix A.

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E.

Western Nuclear recently entered into an Administrative Settlement

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Agreement and Order on Consent for Engineering Evaluation and Cost Analysis in In the

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Matter of: Ruby Mines Site, U.S. EPA Region 9, CERCLA Docket No. 2016-10 and will

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perform that work separately from this Consent Decree (“CD”). The Parties agree that all

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future work at the Ruby Mines Site after the Engineering Evaluation/Cost Analysis

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(“EE/CA”) is completed will be performed pursuant to the terms of this Consent Decree.

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F.

Pursuant to the settlement of the Tronox Incorporated bankruptcy

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proceeding, In re Tronox Inc., No. 09-10156 (ALG) (Bkr. S.D.N.Y.), the United States

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and the Navajo Nation settled, resolved, and recovered funds from Tronox Incorporated,

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Kerr-McGee Corporation, and related subsidiaries of Anadarko Petroleum Corporation to

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address certain abandoned uranium mines located on Navajo Nation lands, including the

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23 abandoned uranium mines listed and identified in Appendix B. Settling Defendants

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acknowledge that Vanadium Corporation of America was historically involved in

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uranium mining at each of the abandoned uranium mines identified in Appendix B. This

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CD does not require Settling Defendants to perform any work at any of the abandoned

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uranium mines identified in Appendix B.

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G.

In accordance with Section 122(j)(1) of CERCLA, 42 U.S.C. § 9622(j)(1),

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EPA notified the Navajo Nation Division of Natural Resources, Navajo Nation

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Department of Justice, U.S. Department of the Interior, New Mexico Office of Natural

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Resources Trustee, Arizona Natural Resources Trustee, State of Utah Lead Trustee, and

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State of Utah Co-Trustee on December 13, 2016, of negotiations with the Settling

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Defendants regarding the release of hazardous substances that may have resulted in injury

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to the natural resources under federal trusteeship and encouraged the trustee(s) to

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participate in the negotiation of this CD.

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H.

Settling Defendants do not admit any liability to Plaintiffs arising out of

the transactions or occurrences alleged in the complaints, do not admit that any release or

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threatened release of hazardous substances occurred while they operated any Mine Site,

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nor do they acknowledge that the release or threatened release of hazardous substance(s)

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at or from any of the Mine Sites constitutes an imminent and substantial endangerment to

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the public health or welfare or the environment. Settling Federal Agencies do not admit

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any liability arising out of the transactions or occurrences as may be alleged in any claims

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by the Navajo Nation or counterclaims by Settling Defendants.

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I.

Based on the information presently available to EPA and the Navajo

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Nation, EPA and the Navajo Nation believe that the Work at the Mine Sites will be

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promptly conducted by Settling Defendants if conducted in accordance with this CD and

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its appendices.

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J.

Solely for the purposes of Section 113(j) of CERCLA, 42 U.S.C. § 9613(j),

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the Work to be performed by Settling Defendants shall constitute a response action taken

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or ordered by the President for which judicial review shall be limited to the

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administrative record.

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K.

The Parties recognize, and the Court by entering this CD finds, that this CD

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has been negotiated by the Parties in good faith and implementation of this CD will

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expedite the cleanup of the Mine Sites and will avoid prolonged and complicated

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litigation between the Parties, and that this CD is fair, reasonable, and in the public

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interest.

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NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:

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II.
1.

JURISDICTION

This Court has jurisdiction over the subject matter of this action

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pursuant to 28 U.S.C. §§ 1331, 1367, and 1345, and 42 U.S.C. §§ 9606, 9607, and

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9613(b). This Court also has personal jurisdiction over the Parties. Solely for the

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purposes of this CD and the underlying complaints, the Parties waive all objections and

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defenses that they may have to jurisdiction of the Court or to venue in this District. The

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Parties shall not challenge the terms of this CD or this Court’s jurisdiction to enter and

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enforce this CD.

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III.
2.

PARTIES BOUND

This CD is binding upon the United States and the Navajo Nation

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and upon Settling Defendants and their successors and assigns. Any change in ownership

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or corporate or other legal status of Settling Defendants including, but not limited to, any

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transfer of assets or real or personal property shall in no way alter Settling Defendants’

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responsibilities under this CD.

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3.

Settling Defendants shall provide a copy of this CD to each

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contractor hired to perform the Work, and shall condition all contracts entered into

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hereunder upon performance of the Work in conformity with the terms of this CD.

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Settling Defendants or their contractors shall provide written notice of the CD to all

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subcontractors hired to perform any portion of the Work. Settling Defendants shall

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nonetheless be responsible for ensuring that their contractors and subcontractors perform

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the Work in accordance with the terms of this CD. With regard to the activities

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undertaken pursuant to this CD, each contractor and subcontractor shall be deemed to be

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in a contractual relationship with Settling Defendants within the meaning of

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Section 107(b)(3) of CERCLA, 42 U.S.C. § 9607(b)(3).

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IV.
4.

DEFINITIONS

Unless otherwise expressly provided in this CD, terms used in this

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CD that are defined in CERCLA or in regulations promulgated under CERCLA shall

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have the meaning assigned to them in CERCLA or in such regulations. Whenever terms

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listed below are used in this CD or its appendices, the following definitions shall apply

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solely for purposes of this CD:

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“Affected Property” shall mean all real property at the Mine Sites and any other

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real property where EPA determines, at any time, after providing a reasonable

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opportunity for review and comment by NNEPA, that access, land, water, or other

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resource use restrictions are needed to implement the Work.

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“CERCLA”

shall

mean

the

Comprehensive

Compensation,

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Environmental

Response,

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and Liability Act, 42 U.S.C. §§ 9601-9675, and as subsequently amended.

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“Consent Decree” or “CD” shall mean this consent decree and all appendices

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attached hereto (listed in Section XXIII). In the event of conflict between this CD and

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any appendix, this CD shall control.

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“Day” shall mean a calendar day. In computing any period of time under this CD,

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where the last day would fall on a Saturday, Sunday, or federal or Navajo Nation holiday,

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the period shall run until the close of business of the next working day.

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“Decision Document” shall mean any action memorandum or record of decision
signed by EPA for one or more of the Mine Sites.
“DOJ” shall mean the United States Department of Justice and its successor
departments, agencies, or instrumentalities.
“Effective Date” shall mean the date upon which the approval of this CD is
recorded on the Court’s docket.
“EPA” shall mean the United States Environmental Protection Agency and its
successor departments, agencies, or instrumentalities.
“EPA Hazardous Substance Superfund” shall mean the Hazardous Substance
Superfund established by the Internal Revenue Code, 26 U.S.C. § 9507.
“Financial Assurance Amount” shall mean the amount calculated pursuant to
Paragraph 27.

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“First Component of the Work” shall mean removal site evaluations for all of the

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Mine Sites and EE/CAs for those Mine Sites or groups of Mine Sites where EPA

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determines that an EE/CA shall be conducted.

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“Cyprus Amax/Western Nuclear Sites Special Account” shall mean the special

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account, within the EPA Hazardous Substance Superfund, established for the Mine Sites

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by EPA pursuant to Section 122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3).

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“Future Settling Defendants Response Costs” shall mean (i) those necessary costs

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of response incurred by Settling Defendants after the Effective Date that are consistent

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with the National Contingency Plan, as defined in 42 U.S.C. § 9601(25), and that arise

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out of or in connection with the Work, and (ii) any Future Response Costs paid by

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Settling Defendants.

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“Future Response Costs” shall mean all costs, including, but not limited to, direct

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and indirect costs, that the United States or the Navajo Nation incurs in reviewing or

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developing deliverables submitted pursuant to this CD, in overseeing implementation of

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the Work, or otherwise implementing, overseeing, or enforcing this CD, including, but

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not limited to, payroll costs, contractor costs, travel costs, laboratory costs, the costs

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incurred pursuant to ¶ 12 (Emergencies and Releases), ¶ 13 (Community Involvement)

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(including the costs of any technical assistance grant under Section 117(e) of CERCLA,

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42 U.S.C. § 9617(e)), ¶ 26 (Access to Financial Assurance), ¶ 70 (Work Takeover),

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Section VII (Remedy Review), Section VIII (Property Requirements) (including the cost

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of attorney time and any monies paid to secure or enforce access or land, water, or other

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resource use restrictions, including, but not limited to, the amount of just compensation),

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and Section XIII (Dispute Resolution), and all litigation costs. Future Response Costs

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shall also include all Interim Response Costs, and all Interest on those Past Response

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Costs and Navajo Nation Past Response Costs that Settling Defendants have agreed to

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pay under this CD that has accrued pursuant to 42 U.S.C. § 9607(a) during the period

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from June 15, 2016 to the Effective Date, in the case of the United States, and from June

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30, 2016 to the Effective Date, in the case of the Navajo Nation.

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“Inflation Start Date” shall mean the earlier of either (1) the date EPA selects at

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least one response action for one or more of the mines included in Attachment A of the

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Statement of Work, after completion of an EE/CA or Remedial Investigation pursuant to

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the Statement of Work, or (2) January 1, 2023. For purposes of determining the Inflation

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Start Date, Interim Actions required pursuant to Section 7 of the Statement of Work do

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not constitute a “response action” that triggers the Inflation Start Date.

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“Institutional Controls” or “ICs” shall mean Proprietary Controls and applicable

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Navajo, state, or local laws, regulations, ordinances, zoning restrictions, or other

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governmental controls or notices that: (a) limit land, water, or other resource use to

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minimize the potential for human exposure to Waste Material at or in connection with the

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Mine Sites; (b) limit land, water, or other resource use to implement, ensure non-

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interference with, or ensure the protectiveness of the response action(s); and/or

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(c) provide information intended to modify or guide human behavior at or in connection

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with the Mine Sites.

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“Interim Response Costs” shall mean all costs, including, but not limited to, direct

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and indirect costs, (a) paid by the United States or the Navajo Nation in connection with

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the Mine Sites between June 15, 2016 or June 30, 2016, respectively, and the Effective

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Date, or (b) incurred prior to the Effective Date but paid after that date.

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“Interest” shall mean interest at the rate specified for interest on investments of the

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EPA Hazardous Substance Superfund, compounded annually on October 1 of each year,

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in accordance with 42 U.S.C. § 9607(a). The applicable rate of interest shall be the rate in

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effect at the time the interest accrues. The rate of interest is subject to change on October

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1 of each year. Rates are available online at http://www2.epa.gov/superfund/superfund-

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interest-rates.

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“Mine Site” shall mean one of, and “Mine Sites” shall mean some or all of, the

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abandoned uranium mine sites and one transfer station in Arizona, New Mexico, and

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Utah, located on Navajo Nation lands, that are enumerated and described in Appendix A,

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and other areas where contamination associated with those abandoned uranium mine sites

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and one transfer station has been deposited, stored, disposed of, placed, or otherwise

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come to be located. The Parties agree that they may amend Appendix A to add or delete

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Mine Sites by mutual consent.

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“Mining” shall include reconnaissance, drilling, exploring, investigating,

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surveying, or other activity related to locating, extracting, transporting, or processing ore

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or minerals from the ground as well as the sale of ores or minerals.

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“National Contingency Plan” or “NCP” shall mean the National Oil and

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Hazardous Substances Pollution Contingency Plan promulgated pursuant to Section 105

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of CERCLA, 42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments

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thereto.

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“Navajo Nation” shall mean the Navajo Nation and each department, agency, and

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instrumentality of the Navajo Nation. The term shall not include Navajo Nation

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enterprises.

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7

“Navajo Nation lands” shall mean all lands of the Navajo Nation as described in 7
N.N.C. § 254(A).

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“Navajo Nation Past Response Costs” or “NN Past Response Costs” shall mean all

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costs, including, but not limited to, direct and indirect costs, that the Navajo Nation paid

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at or in connection with the Mine Sites through June 30, 2016, plus Interest on all such

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costs that has accrued pursuant to 42 U.S.C. § 9607(a) through such date.

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“NNCERCLA” shall mean the Navajo Nation Comprehensive Environmental

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Response, Compensation, and Liability Act, 4 N.N.C. §§ 2102-2805, and as subsequently

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amended.

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“NNCERCLA Cyprus Amax/Western Nuclear Sites Special Account” shall mean

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the special account that is established for the Mine Sites by NNEPA pursuant to the

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NNCERCLA, 4 N.N.C. § 2504(A)(5), and that is within the existing Hazardous

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Substance Fund established under the NNCERCLA, 4 N.N.C. § 2701.

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“NNDOJ” shall mean the Navajo Nation Department of Justice and its successor
departments, agencies, or instrumentalities.
“NNEPA” shall mean the Navajo Nation Environmental Protection Agency and its
successor departments, agencies, or instrumentalities.

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“Notice of Completion of Work” shall mean the notice issued by EPA pursuant to

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Section XXV after EPA determines that Settling Defendants have completed all Work

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required by this CD and SOW, except for Payment of Future Response Costs and Record

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Retention.

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“Operation and Maintenance” or “O&M” shall mean all activities required to

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operate, maintain, and monitor the effectiveness of the response actions undertaken

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pursuant to the Statement of Work (“SOW”), as specified in the SOW or any EPA-

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approved O&M Plan.

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6
7

“Paragraph” or “¶” shall mean a portion of this CD identified by an Arabic
numeral or an upper or lower case letter.
“Parties” shall mean the United States, the Navajo Nation, and Settling
Defendants. “Party” shall mean any one of these Parties, as the context requires.

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“Past Response Costs” shall mean all costs, including, but not limited to, direct

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and indirect costs, that the United States paid at or in connection with the Mine Sites

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through June 15, 2016, plus Interest on all such costs that has accrued pursuant to

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42 U.S.C. § 9607(a) through such date.

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13

“Past Settling Defendants Response Costs” shall mean all response costs incurred
by Settling Defendants before the Effective Date of this CD.

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“Performance Standards” or “PS” shall mean the cleanup levels and other

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measures of achievement of response action objectives, as set forth by EPA in one or

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more action memoranda or one or more records of decision issued in accordance with the

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SOW, the NCP, and CERCLA.

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“Plaintiffs” shall mean the United States and the Navajo Nation.

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“Post-Removal Site Control” shall mean actions necessary to ensure the

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effectiveness and integrity of any removal action to be performed at a Mine Site or Mine

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Sites pursuant to this CD and the SOW, consistent with Sections 300.415(l) and 300.5 of

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the NCP and “Policy on Management of Post-Removal Site Control” (OSWER Directive

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No. 9360.2-02, Dec. 3, 1990).

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“Proprietary Controls” shall mean easements or covenants running with the land

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that (a) limit land, water, or other resource use and/or provide access rights and (b) are

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created pursuant to common law or statutory law by an instrument that is recorded in the

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appropriate land records office.

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“Proximate Mine Site” shall mean one of, and “Proximate Mine Sites” shall mean

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some or all of, the seventeen abandoned uranium mine sites in Arizona, and New

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Mexico, and located on Navajo Nation lands, that are enumerated and described in

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Appendix A, and other areas where contamination associated with those abandoned

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uranium mine sites has been deposited, stored, disposed of, placed, or otherwise come to

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be located. The Proximate Mine Sites are in close physical proximity to one or more of

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the other Mine Sites. The Parties agree that they may amend Appendix A to add or delete

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Proximate Mine Sites by mutual consent.

9

“RCRA” shall mean the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992, and

10

as subsequently amended (also known as the Resource Conservation and Recovery Act).

11

“Section” shall mean a portion of this CD identified by a Roman numeral.

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“Settling Federal Agencies” or “SFAs” shall mean any federal agency,

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department, or instrumentality involved in or responsible in any way for (a) any disposal

14

or release of Waste Material at the Mine Sites or (b) Mining activities at the Mine Sites,

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or otherwise alleged to be liable for contamination at the Mine Sites, including but not

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limited to the Atomic Energy Commission, the United States Department of Energy, the

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United States Nuclear Regulatory Commission, the United States Department of the

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Interior and all subcomponents thereof, including but not limited to the United States

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Geological Survey and the Bureau of Indian Affairs, and any predecessor or successor

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departments, agencies, or instrumentalities.

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“Statement of Work” or “SOW” shall mean the document, attached as Appendix

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C, describing the activities Settling Defendants must perform to implement the response

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actions required by EPA under CERCLA at the Mine Sites, pursuant to the terms of this

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CD.

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26

“Supervising Contractor” shall mean the principal contractor retained by Settling
Defendants to supervise and direct the implementation of the Work under this CD.

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“Transfer” shall mean to sell, assign, convey, lease, mortgage, or grant a security

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interest in, or where used as a noun, a sale, assignment, conveyance, or other disposition

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1

of any interest by operation of law or otherwise.

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“Trust Account” shall mean the U.S. Four Corners Uranium Mine Sites Trust

3

Account established pursuant to the Trust Agreement attached to this CD as Appendix F,

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or any successor or substitute trust accounts.

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6

“United States” shall mean the United States of America and each department,
agency, and instrumentality of the United States, including EPA and the SFAs.

7

“Waste Material” shall mean (1) any “hazardous substance” under Section 101(14)

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of CERCLA, 42 U.S.C. § 9601(14); (2) any pollutant or contaminant under

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Section 101(33) of CERCLA, 42 U.S.C. § 9601(33); and (3) any “solid waste” under

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Section 1004(27) of RCRA, 42 U.S.C. § 6903(27).

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“Work” shall mean all activities and obligations Settling Defendants are required

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to perform under this CD, except the activities required under Section XX (Retention of

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Records).

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V.
5.

GENERAL PROVISIONS

Objectives of the Parties. The objectives of the Parties in entering

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into this CD are to protect public health, welfare, and the environment by the

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investigation of and design and implementation of response actions at the Mine Sites by

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Settling Defendants, to pay response costs of Plaintiffs, to resolve the claims of Plaintiffs

19

against Settling Defendants, as provided in Sections XV (Covenants by the United States)

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and XVI (Covenants by the Navajo Nation), and to resolve the claims of Settling

21

Defendants and the Navajo Nation that have been or could have been asserted against the

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United States with regard to the Work at the Mine Sites, Past Response Costs, NN Past

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Response Costs, Future Response Costs, Past Settling Defendants Response Costs, and

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Future Settling Defendants Response Costs, as provided in Sections XVI (Covenants of

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the Navajo Nation) and XVII (Covenants of Settling Defendants and SFAs).

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6.

Commitments by Settling Defendants and the SFAs. Settling

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Defendants shall finance and perform the Work in accordance with this CD, the SOW,

28

and all deliverables developed by Settling Defendants and approved or modified by EPA,

11

1

after reasonable opportunity for review and comment by NNEPA, pursuant to this CD.

2

Settling Defendants shall pay the United States for its Past and Future Response Costs

3

and the Navajo Nation for its Past and Future Response Costs as provided in this CD.

4

SFAs shall reimburse Settling Defendants Future Response Costs, a portion of Past

5

Response Costs and a portion of Navajo Nation Past Response Costs, as provided in this

6

CD, and in the event of a Work Takeover shall act in accordance with Paragraph 70.d.

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7.

Compliance with Applicable Law. Nothing in this CD limits

8

Settling Defendants’ obligations to comply with the requirements of all applicable

9

Navajo, state, and federal laws and regulations, except as provided in Section 121(e) of

10

CERCLA, 42 U.S.C. § 6921(e), and 40 C.F.R. §§ 300.400(e) and 300.415(j). Settling

11

Defendants must also comply with all applicable or relevant and appropriate

12

requirements of all federal, Navajo, and state environmental laws as set forth in any

13

records of decision or action memoranda for the Mine Sites, or otherwise identified

14

pursuant to the SOW. The activities conducted pursuant to this CD, if approved by EPA,

15

shall be deemed to be consistent with the NCP as provided in Section 300.700(c)(3)(ii) of

16

the NCP.

17

8.

18

Permits.
a.

As provided in Section 121(e) of CERCLA, 42 U.S.C.

19

§ 9621(e), and Section 300.400(e) of the NCP, no permit shall be required for any portion

20

of the Work conducted entirely on-site (i.e., within the areal extent of contamination or in

21

very close proximity to the contamination and necessary for implementation of the

22

Work). Where any portion of the Work that is not on-site requires a federal, Navajo, or

23

state permit or approval, Settling Defendants shall submit timely and complete

24

applications and take all other actions necessary to obtain all such permits or approvals.

25

b.

Settling Defendants may seek relief under the provisions of

26

Section XII (Force Majeure) for any delay in the performance of the Work resulting from

27

a failure to obtain, or a delay in obtaining, any permit or approval referenced in ¶ 8.a and

28

12

1

required for the Work, provided that they have submitted timely and complete

2

applications and taken all other actions necessary to obtain all such permits or approvals.

3
4

c.

pursuant to any federal, Navajo, or state statute or regulation.

5
6
7
8
9

This CD is not, and shall not be construed to be, a permit issued

VI.
9.

PERFORMANCE OF THE WORK

Coordination and Supervision.
a.

Project Coordinators.
(1)

Settling Defendants’ Project Coordinator must have sufficient

technical expertise to coordinate the Work. Settling Defendants’ Project

10

Coordinator may not be an attorney representing Settling Defendants in this matter

11

and may not act as the Supervising Contractor. Settling Defendants’ Project

12

Coordinator may assign other representatives, including other contractors, to assist

13

in coordinating the Work.

14

(2)

EPA has designated Linda Reeves as EPA’s Project

15

Coordinator and Mark Ripperda as EPA’s Alternate Project Coordinator. EPA

16

may designate other representatives, which may include its employees, contractors

17

and/or consultants, to oversee the Work. EPA’s Project Coordinator and Alternate

18

Project Coordinator will have the same authority as a remedial project manager

19

and/or an on-scene coordinator, as described in the NCP. This includes the

20

authority to halt the Work and/or to conduct or direct any necessary response

21

action when he or she determines that conditions at a Mine Site constitute an

22

emergency or may present an immediate threat to public health or welfare or the

23

environment due to a release or threatened release of Waste Material.

24

(3)

NNEPA shall designate and notify EPA and Settling

25

Defendants of their Project Coordinator and Alternate Project Coordinator.

26

NNEPA may designate other representatives, including its employees, contractors

27

and/or consultants, to assist its Project Coordinators. For any meetings and

28

inspections in which EPA’s Project Coordinators participate, NNEPA’s Project

13

1

Coordinator[s] also may participate. Settling Defendants shall notify NNEPA

2

reasonably in advance of any such meetings or inspections.

3

(4)

Settling Defendants’ Project Coordinator shall meet, in

4

person or by phone, with EPA’s Project Coordinator and NNEPA’s Project

5

Coordinator, if he or she chooses to participate, in accordance with the schedules

6

set forth in applicable work plans approved pursuant to the SOW.

7

b.

Supervising Contractor. Settling Defendants’ proposed

8

Supervising Contractor must have sufficient technical expertise to supervise the Work

9

and a quality assurance system that complies with ANSI/ASQC E4-2014, Quality

10

Systems for Environmental Data and Technology Programs: Requirements with

11

Guidance for Use (American National Standard).

12
13

c.

Procedures for Disapproval/Notice to Proceed.
(1)

Settling Defendants shall designate, and notify EPA and

14

NNEPA, within 10 days after the Effective Date, of the names, contact

15

information, and qualifications of Settling Defendants’ proposed Project

16

Coordinator and Supervising Contractor.

17

(2)

EPA, after a reasonable opportunity for review and comment

18

by NNEPA, shall issue notices of disapproval and/or authorizations to proceed

19

regarding the proposed Project Coordinator and Supervising Contractor, as

20

applicable. If EPA issues a notice of disapproval, Settling Defendants shall, within

21

30 days, submit to EPA a list of supplemental proposed Project Coordinators

22

and/or Supervising Contractors, as applicable, including a description of the

23

qualifications of each. EPA shall, after a reasonable opportunity for review and

24

comment by NNEPA, issue a notice of disapproval or authorization to proceed

25

regarding each supplemental proposed coordinator and/or contractor. Settling

26

Defendants may select any coordinator/contractor covered by an authorization to

27

proceed and shall, within 21 days, notify EPA and NNEPA of Settling

28

Defendants’ selection.

14

1

(3)

Settling Defendants may change their Project Coordinator

2

and/or Supervising Contractor, as applicable, by following the procedures of

3

¶¶ 9.c(1) and 9.c(2).

4

(4)

Notwithstanding the procedures of ¶¶ 9.c(1) through 9.c(3),

5

Settling Defendants have proposed, and EPA, after having provided a reasonable

6

opportunity for review and comment by NNEPA, has authorized Settling

7

Defendants to proceed, regarding the following Project Coordinator, Stuart Brown,

8

333 N. Central Avenue, Phoenix, Arizona 85004; [phone];

9

[e-mail], and Supervising Contractor, CH2M Hill, 9191 South Jamaica

10

Street, Englewood, Colorado 80112; [phone].

11

10.

Performance of Work in Accordance with the SOW. Settling

12

Defendants shall conduct all activities required pursuant to the SOW in accordance with

13

the SOW and all EPA-approved, conditionally approved, or modified deliverables. All

14

deliverables required to be submitted for approval under the CD or SOW shall be subject

15

to approval by EPA, after a reasonable opportunity for review and comment by NNEPA,

16

in accordance with Sections 13 (Approval of Deliverables) and 16 (NNEPA

17

Participation) of the SOW.

18
19
20
21
22

11.

Annual Spending Cap. Settling Defendants’ obligation to perform

the activities required by the SOW shall be limited by the following terms:
a.

Settling Defendants shall not be required to spend more than

$25 million per calendar year (“Annual Spending Cap”) until the Inflation Start Date.
b.

After the Inflation Start Date, and until all funds from the Trust

23

Account have been fully expended, the Annual Spending Cap shall be $30 million, as

24

adjusted for inflation as provided in Paragraph 11.e.

25

c.

After all funds from the Trust Account have been fully

26

expended, the Annual Spending Cap shall be $25 million, as adjusted for inflation as

27

provided in Paragraph 11.e.

28

15

1

d.

The Parties shall undertake an annual planning process,

2

according to the work plans required by the SOW. Through this process EPA, after a

3

reasonable opportunity for review and comment by NNEPA, will determine which

4

activities under the SOW must be performed in the following year, subject to the Annual

5

Spending Cap. Settling Defendants shall perform those activities as directed by EPA,

6

subject to the Annual Spending Cap. With EPA’s approval and without waiver of

7

Settling Defendants’ rights, after a reasonable opportunity for review and comment by

8

NNEPA, Settling Defendants may perform additional response actions that cause their

9

spending to exceed the Annual Spending Cap in a calendar year.

10

e.

Inflation is adjusted annually beginning on the Inflation Start

11

Date, based on the Producer Price Index, excluding food and energy (“PPI”). The annual

12

inflation adjustment, however, shall be no less than 1% and no greater than 3%,

13

notwithstanding any lesser or greater change in the PPI.

14

f.

Emergency Response Cost Exception. Any costs incurred by

15

Settling Defendants in responding to an event that causes or threatens to cause a release

16

of Waste Material on, at, or from any of the Mine Sites and that constitutes an emergency

17

situation shall not count toward the Annual Spending Cap that year. This exception shall

18

apply only when the emergency situation could not have been anticipated and

19

incorporated into the annual planning process. If the response to the emergency situation

20

continues for more than 90 days, the costs of response activities performed after 90 days

21

shall be incorporated into the next year’s annual planning process and be subject to the

22

Annual Spending Cap. Notwithstanding any other provisions of this Consent Decree,

23

Settling Defendants shall not cease actions to address an emergency situation unless EPA

24

directs Settling Defendants to do so. An “emergency situation” shall be defined as a

25

situation in which there is an immediate threat to human health or the environment for

26

which EPA requires response activities to begin on-site within 24 hours of EPA’s

27

determination that a removal action is appropriate.

28

12.

Emergencies and Releases.

16

1

a.

Emergency Response and Reporting. If any event occurs

2

during performance of the Work that causes or threatens to cause a release of Waste

3

Material on, at, or from a Mine Site that either constitutes an emergency situation or that

4

may present an immediate threat to public health or welfare or the environment, Settling

5

Defendants shall immediately take all appropriate action to prevent, abate, or minimize

6

such release or threat of release. Settling Defendants shall take such action in accordance

7

with all applicable provisions of this CD and the SOW, including, but not limited to, the

8

Health and Safety Plan. Settling Defendants shall also immediately notify (1) EPA’s

9

Project Coordinator, EPA’s Alternate Project Coordinator (if the EPA Project

10

Coordinator is unavailable), or the Regional Duty Officer at [phone] (if neither

11

EPA Project Coordinator is available); and (2) NNEPA’s Project Coordinator or

12

NNEPA’s Alternate Project Coordinator (if NNEPA’s Project Coordinator is unavailable)

13

of the incident or site conditions.

14

b.

Release Reporting. Upon the occurrence of any event during

15

performance of the Work that Settling Defendants are required to report pursuant to

16

Section 103 of CERCLA, 42 U.S.C. § 9603, or Section 304 of the Emergency Planning

17

and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. § 11004, Settling

18

Defendants shall immediately orally notify: (1) EPA’s Project Coordinator, EPA’s

19

Alternate Project Coordinator (if the EPA Project Coordinator is unavailable), or the

20

Regional Duty Officer at [phone] (if neither EPA Project Coordinator is

21

available); (2) NNEPA’s Project Coordinator or NNEPA’s Alternate Project Coordinator

22

(if NNEPA’s Project Coordinator is unavailable); and (3) the National Response Center

23

at [phone]. This reporting requirement is in addition to, and not in lieu of,

24

reporting under Section 103(c) of CERCLA, 42 U.S.C. § 9603(c), and Section 304 of

25

EPCRA, 42 U.S.C. § 11004.

26

c.

For any event covered by ¶¶ 12.a or 12.b, Settling Defendants

27

shall submit a written report to EPA, with a copy to NNEPA, within 10 days after the

28

onset of such event, setting forth the action or event that occurred and measures taken,

17

1

and to be taken, to mitigate any release or threat of release or endangerment caused or

2

threatened by the release and to prevent the reoccurrence of such a release or threat of

3

release.

4

d.

Subject to Sections XV (Covenants by United States) and XVI

5

(Covenants by Navajo Nation), nothing in this CD, including ¶¶ 12.a and 12.b, limits any

6

authority of Plaintiffs: (a) to take all appropriate action to protect human health and the

7

environment or to prevent, abate, respond to, or minimize an actual or threatened release

8

of Waste Material on, at, or from the Mine Sites, or (b) to direct or order such action, or

9

seek an order from the Court, to protect human health and the environment or to prevent,

10

abate, respond to, or minimize an actual or threatened release of Waste Material on, at, or

11

from the Mine Sites. If, due to Settling Defendants’ failure to take appropriate response

12

action under ¶¶ 12.a or 12.b, EPA or, as appropriate, NNEPA takes such action instead,

13

Settling Defendants shall reimburse EPA or NNEPA, as appropriate, under Section X

14

(Payments for Future Response Costs) for all costs of the response action.

15

13.

Community Involvement. If requested by EPA, after conferring

16

with NNEPA, Settling Defendants shall participate in community involvement activities.

17

Settling Defendants shall conduct community involvement activities under EPA’s and

18

NNEPA’s oversight as provided for in, and in accordance with, Section 3 (Community

19

Involvement) of the SOW. Such activities may include, but are not limited to, designation

20

of a Community Involvement Coordinator and implementation of a technical assistance

21

plan. Costs incurred by the United States or the Navajo Nation under this Section

22

constitute Future Response Costs to be reimbursed under Section X (Payments for

23

Response Costs).

24

14.

25

Modification of SOW or Related Deliverables.
a.

If EPA determines, after a reasonable opportunity for review

26

and comment by NNEPA, that it is necessary to modify the work specified in the SOW

27

and/or in deliverables developed under the SOW in order to achieve and/or maintain the

28

Performance Standards or to carry out and maintain the effectiveness of the selected

18

1

response actions, then EPA may notify Settling Defendants of such modification. If

2

Settling Defendants object to the modification they may, within 30 days after EPA’s

3

notification, seek dispute resolution under Section XIII. Notwithstanding this paragraph,

4

EPA may not modify the SOW to require Settling Defendants to characterize or

5

implement response actions for groundwater or surface water at the Proximate Mine

6

Sites.

7

b.

The SOW and/or related work plans shall be modified: (1) in

8

accordance with the modification issued by EPA; or (2) if Settling Defendants invoke

9

dispute resolution, in accordance with the final resolution of the dispute. The

10

modification shall be incorporated into and enforceable under this CD, and Settling

11

Defendants shall implement all work required by such modification. Settling Defendants

12

shall incorporate the modification into the deliverable required under the SOW, as

13

appropriate.

14

c.

Nothing in this Paragraph shall be construed to limit EPA’s

15

authority to require performance of further response actions as otherwise provided in this

16

CD.

17

15.

Modification of Appendices A and B. The Parties agree that they

18

may add or remove abandoned uranium mine sites or the transfer station from the lists in

19

Appendices A and B by mutual agreement and written consent of each Party.

20

16.

Nothing in this CD, the SOW, or any deliverable required under the

21

SOW constitutes a warranty or representation of any kind by Plaintiffs that compliance

22

with the work requirements set forth in the SOW or related deliverable will achieve the

23

Performance Standards.

24
25

VII.
17.

REMEDY REVIEW

Periodic Review. If any remedial actions are taken at any Mine Site

26

or Mine Sites pursuant to this CD, Settling Defendants shall conduct studies and

27

investigations to support EPA’s reviews under Section 121(c) of CERCLA, 42 U.S.C. §

28

19

1

9621(c), and applicable regulations of whether the remedial actions implemented are

2

protective of human health and the environment.

3
4

VIII. PROPERTY REQUIREMENTS
18.

Agreements Regarding Access and Non-Interference. Settling

5

Defendants shall, with respect to any Affected Property, use best efforts to secure all

6

necessary access agreements, which shall be enforceable by Settling Defendants, EPA,

7

and NNEPA, and which shall provide that the lease and/or permit holders at the Affected

8

Property, and the Affected Property owner, if the Affected Property is owned by another

9

entity that is not a Party, shall: (i) provide Settling Defendants, EPA, and NNEPA, and

10

their representatives, contractors, and subcontractors, with access at all reasonable times

11

to such Affected Property to conduct any activity regarding this CD, including those

12

listed in ¶ 18.a (Access Requirements); and (ii) refrain from using such Affected Property

13

in any manner that EPA determines, after providing NNEPA with a reasonable

14

opportunity to review and comment on the determination, will pose an unacceptable risk

15

to human health or to the environment due to exposure to Waste Material, or interfere

16

with or adversely affect the implementation of the Work.

17
18

a.

Access Requirements. The following list provides examples of

activities for which access to an Affected Property is required:

19

(1)

Monitoring the Work;

20

(2)

Verifying any data or information submitted to the United

21
22
23

States or the Navajo Nation;
(3)

Conducting investigations regarding contamination at or near

the Mine Sites;

24

(4)

Obtaining samples;

25

(5)

Assessing the need for, planning, implementing, or

26

monitoring response actions at or near the Mine Sites;

27
28

20

1

(6)

Assessing implementation of quality assurance and quality

2

control practices as defined in the approved construction quality assurance quality

3

control plan, as provided in the SOW;

4
5

(7)

Implementing the Work pursuant to this CD, including

pursuant to the conditions set forth in ¶ 70 (Work Takeover);

6

(8)

Inspecting and copying records, operating logs, contracts, or

7

other documents maintained or generated by Settling Defendants or their agents,

8

consistent with Section XIX (Access to Information);

9

(9)

Assessing Settling Defendants’ compliance with the CD;

10

(10)

Determining whether the Affected Property is being used in a

11

manner that is prohibited or restricted, or that may need to be prohibited or

12

restricted under the CD; and

13

(11)

Implementing, monitoring, maintaining, reporting on, and

14

enforcing any land, water, or other resource use restrictions.

15

19.

Best Efforts. As used in this Section, “best efforts” means the

16

efforts that a reasonable person in the position of Settling Defendants would use so as to

17

obtain access or use restrictions in a timely manner, including the cost of employing

18

professional assistance and the payment of reasonable sums of money to secure access

19

and/or use restriction agreements. If Settling Defendants are unable to accomplish what is

20

required through “best efforts” in a timely manner, Settling Defendants shall notify the

21

United States and the Navajo Nation and include a description of the steps taken to

22

comply with the requirements in this Section. If the United States deems it appropriate,

23

EPA may assist Settling Defendants, or take independent action, in obtaining such access

24

and/or use restrictions. If the Navajo Nation deems it appropriate, NNEPA may assist

25

Settling Defendants, or take independent action, in obtaining such access and/or use

26

restrictions. All costs incurred by the United States and the Navajo Nation in providing

27

such assistance or taking such action, including the cost of attorney time and the amount

28

21

1

of monetary consideration or just compensation paid, constitute Future Response Costs to

2

be reimbursed under Section X (Payments for Response Costs).

3

20.

In the event of any Transfer of the Affected Property, unless the

4

United States otherwise consents in writing, Settling Defendants shall continue to comply

5

with their obligations under the CD, including their obligation to secure access and

6

ensure compliance with any land, water, or other resource use restrictions regarding the

7

Affected Property.

8
9

21.

Notwithstanding any provision of the CD, Plaintiffs retain all of their

access authorities and rights, as well as all of their rights to require land, water, or other

10

resource use restrictions, including enforcement authorities related thereto, under

11

CERCLA, RCRA, NNCERCLA, and any other applicable statute or regulations.

12
13

IX.
22.

FINANCIAL ASSURANCE

In order to ensure completion of the Work, Settling Defendants shall

14

secure financial assurance, in an amount determined in accordance with paragraph 27, for

15

the benefit of EPA. The financial assurance must be one or more of the mechanisms

16

listed below, in a form substantially identical to the relevant sample documents available

17

from the “Financial Assurance” category on the Cleanup Enforcement Model Language

18

and Sample Documents Database at http://cfpub.epa.gov/compliance/models/, and

19

satisfactory to EPA, after a reasonable opportunity for review and comment by NNEPA.

20

Settling Defendants may use multiple mechanisms if they are limited to surety bonds

21

guaranteeing payment, letters of credit, trust funds, and/or insurance policies.

22

a.

A surety bond guaranteeing payment and/or performance of the

23

Work that is issued by a surety company among those listed as acceptable sureties on

24

federal bonds as set forth in Circular 570 of the U.S. Department of the Treasury;

25

b.

An irrevocable letter of credit, payable to or at the direction of

26

EPA, after a reasonable opportunity for review and comment by NNEPA, that is issued

27

by an entity that has the authority to issue letters of credit and whose letter-of-credit

28

operations are regulated and examined by a federal or state agency;

22

1

c.

A trust fund established for the benefit of EPA that is

2

administered by a trustee that has the authority to act as a trustee and whose trust

3

operations are regulated and examined by a federal or state agency;

4

d.

A policy of insurance that provides EPA with acceptable rights

5

as beneficiary thereof and that is issued by an insurance carrier that has the authority to

6

issue insurance policies in the applicable jurisdiction(s) and whose insurance operations

7

are regulated and examined by a federal or state agency;

8
9

e.

A demonstration by Settling Defendants that Settling

Defendants meet the relevant financial test criteria of 40 C.F.R. § 264.143(f) and the

10

reporting requirements of this Section for the sum of the Financial Assurance Amount

11

and the amounts, if any, of other federal, state, or tribal environmental obligations

12

financially assured through the use of a financial test or guarantee, accompanied by a

13

standby funding commitment, which obligates Settling Defendants to pay funds to or at

14

the direction of EPA, after a reasonable opportunity for review and comment by NNEPA,

15

up to the amount financially assured through the use of this demonstration in the event of

16

a Work Takeover; or

17

f.

A guarantee to fund or perform the Work executed in favor of

18

EPA by one of the following: (1) a direct or indirect parent company of Settling

19

Defendants; or (2) a company that has a “substantial business relationship” (as defined in

20

40 C.F.R. § 264.141(h)) with Settling Defendants; provided, however, that any company

21

providing such a guarantee must demonstrate to EPA’s satisfaction, after a reasonable

22

opportunity for review and comment by NNEPA, that it meets the relevant financial test

23

criteria of 40 C.F.R. § 264.143(f) and reporting requirements of this Section for the sum

24

of the Financial Assurance Amount and the amounts, if any, of other federal, state, or

25

tribal environmental obligations financially assured through the use of a financial test or

26

guarantee.

27

23.

28

Settling Defendants have selected, and EPA has found satisfactory,

after a reasonable opportunity for review and comment by NNEPA, as an initial financial

23

1

assurance a surety bond in the form attached as Appendix D. Within 30 days after the

2

Effective Date, Settling Defendants shall secure all executed and/or otherwise finalized

3

mechanisms or other documents consistent with the form of financial assurance attached

4

as Appendix D and shall submit such mechanisms and documents to the Regional

5

Financial Management Officer, to the United States and the Navajo Nation, and to EPA

6

and NNEPA as specified in Section XXI (Notices and Submissions).

7

24.

If Settling Defendants provide financial assurance by means of a

8

demonstration or guarantee under ¶ 22.e or 22.f, Settling Defendants shall also comply

9

and shall ensure that their guarantors comply with the other relevant criteria and

10

requirements of 40 C.F.R. § 264.143(f) and this Section, including, but not limited to: (a)

11

the initial submission to EPA and NNEPA of required documents from the affected

12

entity’s chief financial officer and independent certified public accountant no later than

13

30 days after the Effective Date; (b) the annual resubmission of such documents within

14

90 days after the close of each such entity’s fiscal year; and (c) the notification of EPA

15

and NNEPA no later than 30 days, in accordance with ¶ 25, after any such entity

16

determines that it no longer satisfies the relevant financial test criteria and requirements

17

set forth at 40 C.F.R. § 264.143(f)(1). Settling Defendants agree that EPA may also,

18

based on a belief that an affected entity may no longer meet the financial test

19

requirements of ¶ 22.e or 22.f, and after a reasonable opportunity for review and

20

comment by NNEPA, require reports of financial condition at any time from such entity

21

in addition to those specified in this Paragraph. For purposes of this Section, references in

22

40 C.F.R. Part 264, Subpart H, to: (1) the terms “current closure cost estimate,” “current

23

post-closure cost estimate,” and “current plugging and abandonment cost estimate”

24

include the Financial Assurance Amount; (2) the phrase “the sum of the current closure

25

and post-closure cost estimates and the current plugging and abandonment cost

26

estimates” includes the sum of all environmental obligations (including obligations under

27

CERCLA, RCRA, and any other federal, state, or tribal environmental obligation)

28

guaranteed by such company or for which such company is otherwise financially

24

1

obligated in addition to the Financial Assurance Amount under this CD; (3) the terms

2

“owner” and “operator” include Settling Defendants, if they are making a demonstration

3

or obtaining a guarantee under ¶ 22.e or 22.f; and (4) the terms “facility” and “hazardous

4

waste management facility” include the Mine Sites.

5

25.

Settling Defendants shall diligently monitor the adequacy of the

6

financial assurance. If Settling Defendants become aware of any information indicating

7

that the financial assurance provided under this Section is inadequate or otherwise no

8

longer satisfies the requirements of this Section, Settling Defendants shall notify EPA

9

and NNEPA of such information within 7 days. If EPA determines, after a reasonable

10

opportunity for review and comment by NNEPA, that the financial assurance provided

11

under this Section is inadequate or otherwise no longer satisfies the requirements of this

12

Section, EPA will notify Settling Defendants of such determination. Settling Defendants

13

shall, within 30 days after notifying EPA or receiving notice from EPA under this

14

Paragraph, secure and submit to EPA for approval a proposal for a revised or alternative

15

financial assurance mechanism that satisfies the requirements of this Section, and shall

16

submit a copy of the proposal to NNEPA. EPA may extend this deadline for such time as

17

is reasonably necessary for Settling Defendants, in the exercise of due diligence, to

18

secure and submit to EPA a proposal for a revised or alternative financial assurance

19

mechanism, not to exceed 60 days. Settling Defendants shall follow the procedures of

20

¶ 27 (Modification of Financial Assurance) in seeking approval of, and submitting

21

documentation for, the revised or alternative financial assurance mechanism. Settling

22

Defendants’ inability to secure and submit to EPA financial assurance in accordance with

23

this Section shall in no way excuse performance of any other requirements of this CD,

24

including, without limitation, the obligation of Settling Defendants to complete the Work

25

in accordance with the terms of this CD.

26
27
28

26.

Access to Financial Assurance.
a.

If EPA issues a notice of implementation of a Work Takeover

under ¶ 70.b, then, in accordance with any applicable financial assurance mechanism

25

1

and/or related standby funding commitment, EPA is entitled to: (1) the performance of

2

the Work; and/or (2) payment of any guaranteed funds, in accordance with ¶ 26.d.

3

b.

If EPA is notified by the issuer of a financial assurance

4

mechanism that it intends to cancel such mechanism, and Settling Defendants fail to

5

provide an alternative financial assurance mechanism in accordance with this Section at

6

least 30 days prior to the cancellation date, the funds guaranteed under such mechanism

7

must be paid prior to cancellation in accordance with ¶ 26.d.

8
9

c.

If, upon issuance of a notice of implementation of a Work

Takeover under ¶ 70.b, either: (1) EPA is unable for any reason to promptly secure the

10

resources guaranteed under any applicable financial assurance mechanism and/or related

11

standby funding commitment, whether in cash or in kind, to continue and complete the

12

Work; or (2) the financial assurance is provided under ¶ 22.e or 22.f, then EPA may

13

demand an amount, as determined by EPA, sufficient to cover the cost of the remaining

14

Work to be performed. Settling Defendants shall, immediately upon written demand from

15

EPA, pay the amount demanded as directed by EPA.

16

d.

Any amounts required to be paid under this ¶ 26 shall be, as

17

directed by EPA: (i) paid to EPA in order to facilitate the completion of the Work by

18

EPA or by another person; or (ii) deposited into an interest-bearing account, established

19

at a duly chartered bank or trust company that is insured by the FDIC, in order to

20

facilitate the completion of the Work by another person. If payment is made to EPA, EPA

21

may deposit the payment into the EPA Hazardous Substance Superfund or into the

22

Cyprus Amax/Western Nuclear Mine Sites Special Account within the EPA Hazardous

23

Substance Superfund to be retained and used to conduct or finance response actions at or

24

in connection with the Mine Sites, or to be transferred by EPA to the EPA Hazardous

25

Substance Superfund.

26
27

e.

All EPA Work Takeover costs not paid under this ¶ 26 must be

reimbursed as Future Response Costs under Section X (Payments for Response Costs).

28

26

1

27.

2

assurance

3

Determining the amount of Settling Defendants’ financial

a.

The Financial Assurance Amount shall be the sum of estimated

4

costs for Work under all Decision Documents for which EPA has not yet issued a Notice

5

of Completion, pursuant to Section 10.8 of the SOW. The Financial Assurance Amount

6

shall also include an additional amount of $29.4 million until EPA issues a Notice of

7

Completion for the First Component of Work.

8
9

b.

Settling Defendants shall be required to secure financial

assurance in an amount equal to one-half of the Financial Assurance Amount until the

10

Trigger (defined in

11

Defendants shall have no further obligation to provide financial assurance until the

12

amount of funds remaining in the Trust Account is less than the Financial Assurance

13

Amount. When the amount of funds remaining in the Trust Account becomes less than

14

the Financial Assurance Amount, Setting Defendants shall secure financial assurance in

15

an amount equal to the difference between the Financial Assurance Amount and the Trust

16

Account balance, but not more than one-half of the Financial Assurance Amount, until

17

the Trust Account is exhausted. Settling Defendants shall increase their financial

18

assurance semi-annually, if such an increase is necessary. Upon exhaustion of the Trust

19

Account, Settling Defendants shall be required to continue to secure financial assurance

20

in an amount equal to one-half of the Financial Assurance Amount.

21

¶ 34.b(6)). Upon the occurrence of the Trigger, Settling

c.

Upon EPA’s signature of a Decision Document, the estimated

22

costs for the Work under that Decision Document shall be included in the calculation of

23

the Financial Assurance Amount pursuant to paragraph 27.a. Settling Defendants shall

24

secure any necessary additional financial assurance, within 30 days of EPA’s signature of

25

that Decision Document.

26
27

d.

The Financial Assurance Amount may be reduced only in

accordance with the procedures set forth in paragraph 27.e.

28

27

1

e.

Modification of Amount, Form, or Terms of Financial

2

Assurance. Settling Defendants may at any time submit a request to reduce the Financial

3

Assurance Amount or change the form or terms of the financial assurance mechanism.

4

Any such request must be submitted to EPA and NNEPA in accordance with ¶ 23, and

5

must include an estimate of the cost of the remaining Work under all Decision

6

Documents and in the First Component of the Work, an explanation of the bases for the

7

cost calculation, and a description of the proposed changes, if any, to the form or terms of

8

the financial assurance. EPA will notify Settling Defendants, after EPA provides a

9

reasonable opportunity for review and comment by NNEPA, of its decision to approve or

10

disapprove a requested reduction or change pursuant to this Paragraph. Settling

11

Defendants may reduce the Financial Assurance Amount only in accordance with: (a)

12

EPA’s approval; or (b) if there is a dispute, the agreement, final administrative decision,

13

or final judicial decision resolving such dispute under Section XIII (Dispute Resolution).

14

Within 30 days after EPA’s approval of or the agreement or decision resolving a dispute

15

relating to the requested modification to the amount, Settling Defendants shall submit to

16

EPA, with a copy to NNEPA, documentation of the reduced financial assurance

17

mechanism in accordance with ¶ 23. Any decision made by EPA on a request submitted

18

under this Paragraph to change the form or terms of a financial assurance mechanism

19

shall be made in EPA’s sole and unreviewable discretion, and such decision shall not be

20

subject to challenge by Settling Defendants pursuant to the dispute resolution provisions

21

of this CD or in any other forum. Within 30 days after receipt of EPA’s approval of any

22

requested modifications of the form or terms of financial assurance pursuant to this

23

Paragraph, Settling Defendants shall submit to EPA, with a copy to NNEPA,

24

documentation of the revised or alternative financial assurance mechanism in accordance

25

with ¶ 23.

26

28.

Release, Cancellation, or Discontinuation of Financial

27

Assurance. Settling Defendants may release, cancel, or discontinue any financial

28

assurance provided under this Section only: (a) after EPA issues a Notification of Work

28

1

Completion under ¶ 11.4 (Certification of Work Completion) of the SOW for every Mine

2

Site; (b) in accordance with EPA’s approval of such release, cancellation, or

3

discontinuation; or (c) if there is a dispute regarding the release, cancellation or

4

discontinuance of any financial assurance, in accordance with the agreement, final

5

administrative decision, or final judicial decision resolving such dispute under

6

Section XIII (Dispute Resolution).

7

X.

8
9

29.

PAYMENTS FOR RESPONSE COSTS

Payment by Settling Defendants for United States Past Response

Costs. Within 30 days after the Effective Date, Settling Defendants shall pay to EPA

10

$1,506,915.01 for Past Response Costs. Payment shall be made in accordance with ¶ 35.a

11

(instructions for past response cost payments).

12

30.

Payment by Settling Defendants for NN Past Response Costs.

13

Within 30 days after the Effective Date, Settling Defendants shall pay NNEPA $8,099.60

14

for Navajo Nation Past Response Costs. Payment shall be made in accordance with ¶

15

35.c.

16

31.

17

Payment by Settling Federal Agencies for Past Response Costs.
a.

As soon as reasonably practicable after the Effective Date, the

18

United States on behalf of the SFAs shall pay to EPA $1,506,915.01 for Past Response

19

Costs. Payment shall be made in accordance with Paragraph 35.a (instructions for past

20

response cost payments). The total amount to be paid by the United States on behalf of

21

the SFAs shall be deposited by EPA in the Cyprus Amax/Western Nuclear Mines Sites

22

Special Account to be retained and used to conduct or finance response actions at or in

23

connection with the Mine Sites.

24

b.

As soon as reasonably practicable after the Effective Date, the

25

United States on behalf of the SFAs shall pay NNEPA $8,099.59 for Navajo Nation Past

26

Response Costs. Payment shall be made in accordance with Paragraph 35.c.

27
28

32.

Deposit of Past Response Costs Payment. The total amount to be

paid by Settling Defendants pursuant to ¶ 29 shall be deposited by EPA in the Cyprus

29

1

Amax/Western Nuclear Mine Sites Special Account to be retained and used to conduct or

2

finance response actions at or in connection with the Mine Sites.

3

33.

Payments by Settling Defendants for Future Response Costs.

4

Settling Defendants shall pay to EPA and NNEPA all Future Response Costs not

5

inconsistent with the NCP.

6

a.

Prepayment of Future Response Costs. Within 30 days after

7

the Effective Date, Settling Defendants shall pay NNEPA $100,000 as an initial payment

8

toward Future Response Costs. This payment shall be made in accordance with ¶ 35.c

9

(instructions for future response cost prepayments). The total amount paid to NNEPA

10

shall be deposited in the NNCERCLA Cyprus Amax/Western Nuclear Sites Special

11

Account . These funds shall be retained and used by NNEPA to conduct or finance future

12

response actions at or in connection with the Mine Sites.

13

b.

Periodic Bills. On a periodic basis, EPA will send Settling

14

Defendants a bill requiring payment that includes a cost summary, which includes direct

15

and indirect costs incurred by EPA, its contractors, subcontractors, and DOJ. EPA may

16

periodically provide to Settling Defendants estimates of Future Response Costs incurred

17

by EPA since the date of the last bill and projections of costs to be incurred by EPA in

18

the upcoming year. On a periodic basis, NNEPA will send Settling Defendants a bill

19

requiring payment that includes a cost summary, which includes direct and indirect costs

20

incurred by NNEPA, NNDOJ, contractors, and subcontractors. Settling Defendants shall

21

make all payments within 30 days after Settling Defendants’ receipt of each bill requiring

22

payment, except as otherwise provided in ¶ 36, in accordance with ¶¶ 35.b and 35.c

23

(instructions for future response cost payments).

24

c.

Deposit of Future Response Costs Payments. The total

25

amount to be paid by Settling Defendants to EPA pursuant to ¶ 33.b (Periodic Bills) shall

26

be deposited by EPA in the Cyprus Amax/Western Nuclear Mine Sites Special Account

27

to be retained and used to conduct or finance response actions at or in connection with the

28

Mine Sites, or to be transferred by EPA to the EPA Hazardous Substance Superfund,

30

1

provided, however, that EPA may deposit a Future Response Costs payment directly into

2

the EPA Hazardous Substance Superfund if, at the time the payment is received, EPA

3

estimates that the Cyprus Amax/Western Nuclear Mine Sites Special Account balance is

4

sufficient to address currently anticipated future response actions to be conducted or

5

financed by EPA at or in connection with the Mine Sites. Any decision by EPA to deposit

6

a Future Response Costs payment directly into the EPA Hazardous Substance Superfund

7

for this reason shall not be subject to challenge by Settling Defendants pursuant to the

8

dispute resolution provisions of this CD or in any other forum. The total amount to be

9

paid to NNEPA by Settling Defendants pursuant to ¶ 33.b (Periodic Bills) shall be

10

deposited by NNEPA into the NNCERCLA Cyprus Amax/Western Nuclear Mine Sites

11

Special Account.

12

d.

Unused Amount. After EPA issues the Notice of Completion

13

of Work pursuant to Section XXV and NNEPA issues a final accounting of the

14

NNCERCLA Cyprus Amax/Western Nuclear Mine Sites Special Account (including

15

crediting Settling Defendants for any amounts received under ¶¶ 33.a (Prepayment of

16

Future Response Costs) or 33.b (Periodic Bills), NNEPA will offset the next Future

17

Response Costs bill by the unused amount paid by Settling Defendants pursuant to

18

¶¶ 33.a (Prepayment of Future Response Costs) or 33.b (Periodic Bills); apply any

19

unused amount paid by Settling Defendants pursuant to ¶¶ 33.a (Prepayment of Future

20

Response Costs) or 33.b (Periodic Bills) to any other unreimbursed response costs or

21

response actions remaining at the Mine Sites; or remit and return to Settling Defendants

22

any unused amount of the funds paid by Settling Defendants pursuant to ¶¶ 33.a

23

(Prepayment of Future Response Costs) or 33.b (Periodic Bills). Any decision by

24

NNEPA to apply unused amounts to unreimbursed response costs or response actions

25

remaining at the Mine Sites shall not be subject to challenge by Settling Defendants

26

pursuant to the dispute resolution provisions of this CD or in any other forum.

27

34. Payments by SFAs.

28

31

1

a.

Cash-out Payment for Future Settling Defendants Response

2

Costs. Following the Effective Date, and as soon as reasonably practicable following

3

receipt of payment instructions from the Trustee, the United States shall deposit $335

4

million into the Trust Account created pursuant to the Trust Agreement that the United

5

States and Settling Defendants shall execute, attached hereto as Appendix F.

6
7
8
9

b.

Reimbursement of Future Settling Defendants Response

Costs by the Trust.
(1)

To obtain reimbursement from the Trust Account, Settling

Defendants must submit claims for reimbursement pursuant to Section 4 of the

10

Trust Agreement. In no case may Settling Defendants submit claims for

11

reimbursement more frequently than once every 30 calendar days. Nothing herein

12

shall be interpreted to preclude Settling Defendants from submitting claims for

13

reimbursement at less frequent intervals.

14
15
16

(2)

The $25 Million Cap is equal to $25 million, as adjusted for

inflation pursuant to Paragraph 11.e.
(3)

Before the Inflation Start Date, Settling Defendants may

17

submit claims for reimbursement from the Trust Account for up to 50 percent of

18

Future Settling Defendants Response Costs.

19

(4)

Annual Review by the United States. No later than March 1

20

of each year, beginning in 2018, Settling Defendants shall submit to the United

21

States a statement of Future Settling Defendants Response Costs incurred in the

22

prior calendar year. Settling Defendants shall include a statement of all

23

reimbursements obtained from the Trust Account for costs incurred during that

24

calendar year, as well as sufficient documentation to allow verification of the

25

accuracy of the costs claimed, proof of payment of all of the Future Settling

26

Defendants Response Costs included in the statement, and a signed certification

27

under penalty of law that such costs were properly incurred and consistent with the

28

National Contingency Plan, this Consent Decree, and any Decision Documents.

32

1

The information required under this subparagraph shall constitute a "Settling

2

Defendants Costs Statement."

3

(5)

From the Inflation Start Date until the Trigger under

4

Paragraph 34.b(6), each calendar year Settling Defendants may submit claims for

5

reimbursement from the Trust Account for Future Settling Defendants Response

6

Costs up to 50 percent of the $25 Million Cap. For any Future Settling Defendants

7

Response Costs above the $25 Million Cap and up to the Annual Spending Cap,

8

Settling Defendants may submit claims for reimbursement for 100 percent of such

9

costs from the Trust Account. If Settling Defendants elect under Paragraph 11.d to

10

perform Work that causes Future Settling Defendants Response Costs to exceed

11

the Annual Spending Cap in any calendar year, Settling Defendants may submit

12

claims for reimbursement from the Trust Account for 50 percent of such excess

13

amount.

14

(6)

If and when the net total Future Settling Defendants Response

15

Costs exceed $265 million (the "Trigger"), Settling Defendants may thereafter

16

submit claims for reimbursement from the Trust Account for 100 percent of

17

Settling Defendants Future Response Costs, up to the Annual Spending Cap. For

18

the avoidance of doubt, the Trigger shall not be adjusted for inflation pursuant to

19

Paragraph 11.e. If Settling Defendants elect under Paragraph 11.d to perform

20

Work that causes Future Settling Defendants Response Costs to exceed the Annual

21

Spending Cap, Settling Defendants may submit claims for reimbursement from the

22

Trust Account for up to 50 percent of such excess amount. Settling Defendants’

23

total net spending does not include any spending for which Settling Defendants

24

obtained, or are in the process of obtaining, reimbursement from the Trust

25

Account. Settling Defendants must notify the United States within 15 days after

26

its accounting indicates that total net spending reached $265 million. Settling

27

Defendants shall include in this notification a Settling Defendants Costs Statement

28

33

1

covering the period of time from the last such annual statement provided pursuant

2

to Paragraph 34.b(4) through the Trigger.

3

(7)

Notwithstanding anything to the contrary contained herein,

4

but subject to the provisions of Paragraph 34.b(8) regarding the Proximate Mines,

5

for any Future Settling Defendants Response Costs incurred in response to an

6

emergency as described in Paragraph 11.f, Settling Defendants may submit claims

7

for reimbursement from the Trust Account for only 50 percent of any such costs.

8
9

(8)

Notwithstanding anything to the contrary contained herein,

for any Future Settling Defendants Response Costs incurred pursuant to Paragraph

10

11.f, to the extent (a) such costs are incurred at a Proximate Mine and (b) the

11

emergency was not caused by any action taken by Settling Defendants, Settling

12

Defendants may submit claims for reimbursement from the Trust Account (or the

13

United States, in the event of the Re-Opener Event) for 100 percent of any such

14

costs.

15

(9)

In the event EPA implements a Work Takeover pursuant to

16

Paragraph 70, the Trust Account may be used to reimburse or incur response costs

17

for the Work other than Future Settling Defendants Response Costs. If EPA

18

subsequently terminates the Work Takeover and Settling Defendants resume

19

performance of the Work, disbursements from the Trust Account to the Settling

20

Defendants shall be reduced (or the United States shall reduce its reimbursements,

21

if after the Re-Opener Event) by an amount equal to the costs incurred by the

22

Trust Account in excess of what the Trust Account would have otherwise paid as

23

reimbursement for Future Settling Defendants Response Costs. Such reduction,

24

however, shall exclude any costs that (1) in the absence of a Work Takeover,

25

would not be paid by the Trust Account as reimbursement for Future Settling

26

Defendants Response Costs pursuant to Paragraph 34.b, and (2) are or could have

27

been paid through EPA’s access to financial assurance pursuant to Paragraph 26.

28

34

1

c.

Re-Opener Event. In the event the funds in the Trust Account

2

are exhausted, the United States on behalf of the SFAs agrees to thereafter reimburse

3

Settling Defendants for 50 percent of Future Settling Defendants Response Costs ("the

4

Re-Opener Event"). Settling Defendants may submit claims for reimbursement of up to

5

50 percent of Future Settling Defendants Response Costs (including any spending to

6

respond to an emergency as described in Paragraph 11.f, or up to 100 percent of such

7

Future Settling Defendants Response Costs to the extent that they were incurred to

8

address an emergency situation at a Proximate Mine pursuant to Paragraph 34.b(8)), to

9

the Chief of the Environmental Defense Section of DOJ's Environmental and Natural

10

Resources Division no more often than once every six months. Settling Defendants shall

11

include with each claim for reimbursement a Settling Defendants Costs Statement for the

12

period of time for which it seeks reimbursement.

13
14
15

d.

Dispute Resolution for Future Settling Defendants Response

Costs.
(1)

Upon the receipt of any Settling Defendants Costs Statement,

16

the United States shall have 60 days to review and approve the Settling

17

Defendants Costs Statement. Within 60 days of receipt of the Settling Defendants

18

Costs Statement, the United States may object, in writing, and that objection shall

19

be sent to Settling Defendants pursuant to Paragraph 99. Any objection shall

20

identify the contested costs and the basis for objection. As soon as reasonably

21

practicable following the close of the 60 day review period, the United States shall

22

reimburse Settling Defendants for the United States' share of any uncontested

23

Settling Defendants Future Response Costs contained in a Settling Defendants

24

Costs Statement.

25

(2)

If the United States objects to any Settling Defendants Costs

26

Statement in whole or in part, Settling Defendants and the United States agree to

27

participate in informal negotiations to resolve the dispute. The period of informal

28

negotiations shall last 60 days from the date the United States transmits its

35

1

objection pursuant to Paragraph 99, and may be extended upon mutual consent by

2

the United States and Settling Defendants.

3

(3)

If informal negotiations are unsuccessful, the United States

4

and Settling Defendants reserve their right to submit the dispute to non-binding

5

mediation or to the Court to resolve the matter. The reasonable costs and expenses

6

of mediation shall be borne equally by the parties, and each party shall bear its

7

own attorney fees, expert fees, and other costs of mediation.

8
9

e.

If the United States prevails in whole or in part upon any

objection to any Future Settling Defendants Response Costs described in any Settling

10

Defendants Costs Statement, the next disbursement from the Trust Account (or the next

11

reimbursement from the United States, if after the Re-Opener Event) to the Settling

12

Defendants shall by reduced by a corresponding amount.

13

f.

Section XIII (Dispute Resolution) of this Consent Decree does

14

not apply to disputes raised pursuant to this Paragraph. Any dispute raised pursuant to

15

this Paragraph shall not excuse performance by the SFAs and Settling Defendants of their

16

obligations under this Consent Decree.

17

g.

Interest. The United States shall pay Interest on any unpaid

18

balance on a Settling Defendants Costs Statement submitted pursuant to Paragraph

19

34.b(4); Interest shall begin to accrue starting on the 61st day after the receipt of a

20

Settling Defendants Costs Statement and shall continue through the date of the payment.

21

In the event the United States objects to a Settling Defendants Costs Statement in whole

22

or in part and prevails on any disputed costs, the United States shall not be required to

23

pay those costs or any Interest on those costs.

24

h.

The Parties to this CD recognize and acknowledge that the

25

payment obligations of the United States under this CD can only be paid from

26

appropriated funds legally available for such purpose. Nothing in this CD shall be

27

interpreted or construed as a commitment or requirement that the United States or any

28

36

1

Settling Federal Agency obligate or pay funds in contravention of the Anti-Deficiency

2

Act, 31 U.S.C. § 1341, or any other applicable provision of law.

3
4

35.

Payment Instructions for Settling Defendants.
a.

5

Past Response Costs Payments to the United States.
(1)

The Financial Litigation Unit (FLU) of the United States

6

Attorney’s Office for the District of Arizona shall provide Settling Defendants, in

7

accordance with ¶ 99, with instructions regarding making payments to DOJ on

8

behalf of EPA. The instructions must include a Consolidated Debt Collection

9

System (CDCS) number to identify payments made under this CD.

10

(2)

For all payments subject to this ¶ 35.a, Settling Defendants

11

shall make such payment by Fedwire Electronic Funds Transfer (EFT) / at

12

https://www.pay.gov to the U.S. DOJ account, in accordance with the instructions

13

provided under and including references to the CDCS Number, Site/Spill ID

14

Number A976, and DJ Number 90-11-2-10823/1.

15

(3)

For each payment made under this ¶ 35.a, Settling Defendants

16

shall send notices, including references to the CDCS, Site/Spill ID, and DJ

17

numbers, to the United States, EPA, and the EPA Cincinnati Finance Center, all in

18

accordance with ¶ 99.

19
20
21

b.

Future Response Costs Payments to the United States and

Stipulated Penalties.
(1)

For all payments subject to this ¶ 35.b, Settling Defendants

22

shall make such payment by Fedwire EFT, referencing the Site/Spill ID and DJ

23

numbers. The Fedwire EFT payment must be sent as follows:

24
25
26
27
28

37

1

Federal Reserve Bank of New York

2

ABA = 021030004

3

Account = 68010727

4

SWIFT address = FRNYUS33

5

33 Liberty Street

6

New York NY 10045

7

Field Tag 4200 of the Fedwire message should read

8

“D 68010727 Environmental Protection Agency”

9

(2)

For all payments made under this ¶ 35.b, Settling Defendants

10

must include references to the Site/Spill ID and DJ numbers. At the time of any

11

payment required to be made in accordance with ¶ 35.b, Settling Defendants shall

12

send notices that payment has been made to the United States, EPA, and the EPA

13

Cincinnati Finance Center, all in accordance with ¶ 99. All notices must include

14

references to the Site/Spill ID and DJ numbers.

15

c.

Past and Future Response Costs Payments to the Navajo

16

Nation. All payments to the Navajo Nation required by this CD shall be made in

17

accordance with instructions to be provided by NNEPA.

18

36.

Contesting Future Response Costs. Settling Defendants may

19

submit a Notice of Dispute, initiating the procedures of Section XIII (Dispute

20

Resolution), regarding any Future Response Costs billed under ¶ 33 (Payments by

21

Settling Defendants for Future Response Costs) if they determine that EPA or the Navajo

22

Nation has made a mathematical error or included a cost item that is not within the

23

definition of Future Response Costs, or if they believe EPA or the Navajo Nation

24

incurred excess costs as a direct result of an EPA or NNEPA action that was inconsistent

25

with a specific provision or provisions of the NCP. Such Notice of Dispute shall be

26

submitted in writing within 30 days after receipt of the bill and must be sent to the United

27

States (if the United States’ accounting is being disputed) or the Navajo Nation (if the

28

Navajo Nation’s accounting is being disputed) pursuant to Section XXI (Notices and

38

1

Submissions). Such Notice of Dispute shall specifically identify the contested Future

2

Response Costs and the basis for objection. If Settling Defendants submit a Notice of

3

Dispute, Settling Defendants shall within the 30-day period, also as a requirement for

4

initiating the dispute, (a) pay all uncontested Future Response Costs to the United States

5

and the Navajo Nation, and (b) establish, in a duly chartered bank or trust company, an

6

interest-bearing escrow account that is insured by the Federal Deposit Insurance

7

Corporation (FDIC), and remit to that escrow account funds equivalent to the amount of

8

the contested Future Response Costs. Settling Defendants shall send to the United States

9

or the Navajo Nation, as appropriate, as provided in Section XXI (Notices and

10

Submissions), a copy of the transmittal letter and check paying the uncontested Future

11

Response Costs and a copy of the correspondence that establishes and funds the escrow

12

account, including, but not limited to, information containing the identity of the bank and

13

bank account under which the escrow account is established as well as a bank statement

14

showing the initial balance of the escrow account. If the United States or the Navajo

15

Nation prevails in the dispute, Settling Defendants shall pay the sums due (with accrued

16

interest) to the United States or the Navajo Nation, if Navajo Nation costs are disputed,

17

within 10 days after the resolution of the dispute. If Settling Defendants prevail

18

concerning any aspect of the contested costs, Settling Defendants shall pay that portion of

19

the costs (plus associated accrued interest) for which they did not prevail to the United

20

States or the Navajo Nation, if Navajo Nation costs are disputed, within 10 days after the

21

resolution of the dispute. Settling Defendants shall be disbursed any balance of the

22

escrow account. All payments to the United States under this Paragraph shall be made in

23

accordance with ¶ 35.b. All payments to the Navajo Nation under this Paragraph shall be

24

made in accordance with ¶ 35.c. The dispute resolution procedures set forth in this

25

Paragraph in conjunction with the procedures set forth in Section XIII (Dispute

26

Resolution) shall be the exclusive mechanisms for resolving disputes regarding Settling

27

Defendants’ obligation to reimburse the United States and the Navajo Nation for their

28

Future Response Costs.

39

1

37.

Settling Defendants may contest the final accounting of the

2

NNCERCLA Cyprus Amax/Western Nuclear Special Account issued under ¶ 33.d

3

(Unused Amount) if they determine that the Navajo Nation has made a mathematical

4

error. Such objection shall be made in writing within 30 days after receipt of the final

5

accounting and must be sent to the Navajo Nation pursuant to Section XXI (Notices and

6

Submissions). Any such objection shall specifically identify the alleged final

7

mathematical error and the basis for objection. NNEPA will review the alleged

8

mathematical error and either affirm the initial accounting or issue a corrected final

9

accounting within 60 days. If a corrected final accounting is issued, NNEPA will take

10

such action as may be necessary to correct the final disposition of unused amounts paid in

11

accordance with ¶ 33.d (Unused Amount). If Settling Defendants disagree with NNEPA’s

12

decision, Settling Defendants may, within 10 days after receipt of the decision, appeal the

13

decision to the Manager of the Waste Regulatory and Compliance Department for

14

NNEPA. The Manager of the Waste Regulatory and Compliance Department will issue a

15

final administrative decision resolving the dispute, which shall be binding upon Settling

16

Defendants and shall not be subject to challenge by Settling Defendants pursuant to the

17

dispute resolution provisions of this CD or in any other forum.

18

38.

Interest. In the event that any payment for Future Response Costs

19

required under this Section is not made by the date required, Settling Defendants shall

20

pay Interest on the unpaid balance. The Interest on Past Response Costs, NN Past

21

Response Costs, and prepaid Future Response Costs shall begin to accrue on the

22

Effective Date. The Interest on all subsequent Future Response Costs shall begin to

23

accrue on the date of the bill. The Interest shall accrue through the date of Settling

24

Defendants’ payment. Payments of Interest made under this Paragraph shall be in

25

addition to such other remedies or sanctions available to Plaintiffs by virtue of Settling

26

Defendants’ failure to make timely payments under this Section including, but not limited

27

to, payment of stipulated penalties pursuant to ¶ 55 (Stipulated Penalty Amounts –

28

Work).

40

1
2
3
4

XI.
39.

INDEMNIFICATION AND INSURANCE

Settling Defendants’ Indemnification of the United States and

the Navajo Nation.
a.

The United States and the Navajo Nation do not assume any

5

liability by entering into this CD or by virtue of any designation of Settling Defendants as

6

EPA’s authorized representatives under Section 104(e) of CERCLA, 42 U.S.C.

7

§ 9604(e). Settling Defendants shall indemnify, save, and hold harmless the United States

8

and the Navajo Nation and their officials, agents, employees, contractors, subcontractors,

9

and representatives for or from any and all claims or causes of action arising from, or on

10

account of, negligent or other wrongful acts or omissions of Settling Defendants, their

11

officers, directors, employees, agents, contractors, subcontractors, and any persons acting

12

on Settling Defendants’ behalf or under their control, in carrying out activities pursuant to

13

this CD, including, but not limited to, any claims arising from any designation of Settling

14

Defendants as EPA’s authorized representatives under Section 104(e) of CERCLA.

15

Further, Settling Defendants agree to pay the United States and the Navajo Nation all

16

costs incurred by the United States and the Navajo Nation, including, but not limited to,

17

attorneys’ fees and other expenses of litigation and settlement arising from, or on account

18

of, claims made against the United States and the Navajo Nation based on negligent or

19

other wrongful acts or omissions of Settling Defendants, their officers, directors,

20

employees, agents, contractors, subcontractors, and any persons acting on their behalf or

21

under their control, in carrying out activities pursuant to this CD. Neither the United

22

States nor the Navajo Nation shall be held out as a party to any contract entered into by or

23

on behalf of Settling Defendants in carrying out activities pursuant to this CD. Neither

24

Settling Defendants nor any such contractor shall be considered an agent of the United

25

States or the Navajo Nation.

26

b.

27

The United States and the Navajo Nation, respectively, shall

give Settling Defendants notice of any claim for which the United States or the Navajo

28

41

1

Nation plans to seek indemnification pursuant to this ¶ 39, and shall consult with Settling

2

Defendants prior to settling such claim.

3

40.

Settling Defendants covenant not to sue and agree not to assert any

4

claims or causes of action against the United States and the Navajo Nation, respectively,

5

for damages or reimbursement or for set-off of any payments made or to be made to the

6

United States or the Navajo Nation, arising from or on account of any contract,

7

agreement, or arrangement between Settling Defendants and any person for performance

8

of the Work, including, but not limited to, claims on account of construction delays. In

9

addition, Settling Defendants shall indemnify, save and hold harmless the United States

10

and the Navajo Nation with respect to any and all claims for damages or reimbursement

11

arising from or on account of any contract, agreement, or arrangement between Settling

12

Defendants and any person for performance of the Work, including, but not limited to,

13

claims on account of construction delays.

14

41.

Insurance. No later than 15 days before commencing any on-site

15

Work, Settling Defendants shall secure, and shall maintain until the first anniversary after

16

issuance of Notice of Completion of Work pursuant to Section XXV, commercial general

17

liability insurance with limits of $1 million, for any one occurrence, and automobile

18

liability insurance with limits of $1 million, combined single limit, naming the United

19

States and the Navajo Nation as additional insureds with respect to all liability arising out

20

of the activities performed by or on behalf of Settling Defendants pursuant to this CD. In

21

addition, for the duration of this CD, Settling Defendants shall satisfy, or shall ensure that

22

their contractors or subcontractors satisfy, all applicable laws and regulations regarding

23

the provision of worker’s compensation insurance for all persons performing the Work on

24

behalf of Settling Defendants in furtherance of this CD. Prior to commencement of the

25

Work, Settling Defendants shall provide to EPA and the Navajo Nation certificates of

26

such insurance and a copy of each insurance policy. Settling Defendants shall resubmit

27

such certificates and copies of policies each year on the anniversary of the Effective Date.

28

If Settling Defendants demonstrate by evidence satisfactory to EPA and the Navajo

42

1

Nation that any contractor or subcontractor maintains insurance equivalent to that

2

described above, or insurance covering the same risks but in a lesser amount, then, with

3

respect to that contractor or subcontractor, Settling Defendants need provide only that

4

portion of the insurance described above that is not maintained by the contractor or

5

subcontractor.

6
7

XII.
42.

FORCE MAJEURE

“Force majeure,” for purposes of this CD, is defined as any event

8

arising from causes beyond the control of Settling Defendants, of any entity controlled by

9

Settling Defendants, or of Settling Defendants’ contractors that delays or prevents the

10

performance of any obligation under this CD despite Settling Defendants’ best efforts to

11

fulfill the obligation. The requirement that Settling Defendants exercise “best efforts to

12

fulfill the obligation” includes using best efforts to anticipate any potential force majeure

13

and best efforts to address the effects of any potential force majeure (a) as it is occurring

14

and (b) following the potential force majeure such that the delay and any adverse effects

15

of the delay are minimized to the greatest extent possible. “Force majeure” does not

16

include financial inability to complete the Work or failure to achieve the Performance

17

Standards.

18

43.

If any event occurs or has occurred that may delay the performance

19

of any obligation under this CD for which Settling Defendants intend or may intend to

20

assert a claim of force majeure, Settling Defendants shall notify EPA’s Project

21

Coordinator orally or, in her absence, EPA’s Alternate Project Coordinator or, in the

22

event both of EPA’s designated representatives are unavailable, the Director of the

23

Superfund Division, EPA Region IX, within 48 hours of when Settling Defendants first

24

knew that the event might cause a delay. In addition, Settling Defendants shall notify

25

NNEPA’s Project Coordinator orally or, in his or her absence, NNEPA’s Alternate

26

Project Coordinator or, in the event both NNEPA’s designated representatives are

27

unavailable, the Manager of the Waste Regulatory and Compliance Department for

28

NNEPA. Within 5 days thereafter, Settling Defendants shall provide in writing to EPA

43

1

and NNEPA an explanation and description of the reasons for the delay; the anticipated

2

duration of the delay; all actions taken or to be taken to prevent or minimize the delay; a

3

schedule for implementation of any measures to be taken to prevent or mitigate the delay

4

or the effect of the delay; Settling Defendants’ rationale for attributing such delay to a

5

force majeure; and a statement as to whether, in the opinion of Settling Defendants, such

6

event may cause or contribute to an endangerment to public health or welfare, or the

7

environment. Settling Defendants shall include with any notice all available

8

documentation supporting its claim that the delay was attributable to a force majeure.

9

Settling Defendants shall be deemed to know of any circumstance of which Settling

10

Defendants, any entity controlled by Settling Defendants, or Settling Defendants’

11

contractors or subcontractors knew or should have known. Failure to comply with the

12

above requirements regarding an event shall preclude Settling Defendants from asserting

13

any claim of force majeure regarding that event, provided, however, that if EPA, despite

14

the late or incomplete notice, is able to assess to its satisfaction whether the event is a

15

force majeure under ¶ 42 and whether Settling Defendants have exercised their best

16

efforts under ¶ 42, EPA may, in its unreviewable discretion, excuse in writing Settling

17

Defendants’ failure to submit timely or complete notices under this Paragraph.

18

44.

If EPA, after a reasonable opportunity for review and comment by

19

NNEPA, agrees that the delay or anticipated delay is attributable to a force majeure, the

20

time for performance of the obligations under this CD that are affected by the force

21

majeure will be extended by EPA, after a reasonable opportunity for review and comment

22

by NNEPA, for such time as is necessary to complete those obligations. An extension of

23

the time for performance of the obligations affected by the force majeure shall not, of

24

itself, extend the time for performance of any other obligation. If EPA, after a reasonable

25

opportunity for review and comment by NNEPA, does not agree that the delay or

26

anticipated delay has been or will be caused by a force majeure, EPA will notify Settling

27

Defendants in writing of its decision. If EPA, after a reasonable opportunity for review

28

and comment by NNEPA, agrees that the delay is attributable to a force majeure, EPA

44

1

will notify Settling Defendants in writing of the length of the extension, if any, for

2

performance of the obligations affected by the force majeure.

3

45.

If Settling Defendants elect to invoke the dispute resolution

4

procedures set forth in Section XIII (Dispute Resolution) regarding EPA’s decision, they

5

shall do so no later than 15 days after receipt of EPA’s notice. In any such proceeding,

6

Settling Defendants shall have the burden of demonstrating by a preponderance of the

7

evidence that the delay or anticipated delay has been or will be caused by a force

8

majeure, that the duration of the delay or the extension sought was or will be warranted

9

under the circumstances, that best efforts were exercised to avoid and mitigate the effects

10

of the delay, and that Settling Defendants complied with the requirements of ¶¶ 42 and

11

43. If Settling Defendants carry this burden, the delay at issue shall be deemed not to be a

12

violation by Settling Defendants of the affected obligation of this CD identified to EPA

13

and the Court.

14

46.

The failure by EPA or NNEPA to timely complete any obligation

15

under this CD or under the SOW is not a violation of this CD, provided, however, that if

16

such failure prevents Settling Defendants from meeting one or more deadlines in the

17

SOW, Settling Defendants may seek relief under this Section.

18

XIII. DISPUTE RESOLUTION

19

47.

Unless otherwise expressly provided for in this CD, the dispute

20

resolution procedures of this Section shall be the exclusive mechanism to resolve disputes

21

regarding this CD. However, the procedures set forth in this Section shall not apply to

22

actions by the United States or the Navajo Nation to enforce obligations of Settling

23

Defendants that have not been disputed in accordance with this Section.

24

48.

A dispute shall be considered to have arisen when one Party sends

25

the other Parties a written Notice of Dispute under this CD. Any dispute regarding this

26

CD shall in the first instance be the subject of informal negotiations between the Parties.

27

The period for informal negotiations shall not exceed 20 days from the time the dispute

28

arises, unless it is modified by written agreement of the parties to the dispute.

45

1

49.

2

Statements of Position.
a.

In the event that the Parties cannot resolve a dispute by

3

informal negotiations under the preceding Paragraph, then the position advanced by EPA

4

shall be considered binding unless, within 14 days after the conclusion of the informal

5

negotiation period, Settling Defendants invoke the formal dispute resolution procedures

6

of this Section by serving on the United States and the Navajo Nation a written Statement

7

of Position on the matter in dispute, including, but not limited to, any factual data,

8

analysis, or opinion supporting that position and any supporting documentation relied

9

upon by Settling Defendants. The Statement of Position shall specify Settling

10

Defendants’ position as to whether formal dispute resolution should proceed under ¶ 50

11

or 51.

12

b.

Within 30 days after receipt of Settling Defendants’ Statement

13

of Position, EPA will serve on Settling Defendants its Statement of Position, including,

14

but not limited to, any factual data, analysis, or opinion supporting that position and all

15

supporting documentation relied upon by EPA. EPA’s Statement of Position shall include

16

a statement as to whether formal dispute resolution should proceed under ¶ 50 (Record

17

Review) or 51. Within 30 days after receipt of EPA’s Statement of Position, Settling

18

Defendants may submit a Reply.

19

c.

If there is disagreement between EPA and Settling Defendants

20

as to whether dispute resolution should proceed under ¶ 50 (Record Review) or 51, the

21

parties to the dispute shall follow the procedures set forth in the paragraph determined by

22

EPA to be applicable. However, if Settling Defendants ultimately appeal to the Court to

23

resolve the dispute, the Court shall determine which paragraph is applicable in

24

accordance with the standards of applicability set forth in ¶¶ 50 and 51.

25

50.

Record Review. Formal dispute resolution for disputes pertaining to

26

the selection or adequacy of any response action and all other disputes that are accorded

27

review on the administrative record under applicable principles of administrative law

28

shall be conducted pursuant to the procedures set forth in this Paragraph. For purposes of

46

1

this Paragraph, the adequacy of any response action includes, without limitation, the

2

adequacy or appropriateness of plans, procedures to implement plans, or any other items

3

requiring approval by EPA under this CD, and the adequacy of the performance of

4

response actions taken pursuant to this CD.

5

a.

An administrative record of the dispute shall be maintained by

6

EPA and shall contain all statements of position, including supporting documentation,

7

submitted pursuant to this Section. When appropriate, EPA may allow submission of

8

supplemental statements of position by the parties to the dispute.

9

b.

The Director of the Superfund Division, EPA Region IX, will

10

issue a final administrative decision resolving the dispute based on the administrative

11

record described in ¶ 50.a. This decision shall be binding upon Settling Defendants,

12

subject only to the right to seek judicial review pursuant to ¶¶ 50.c and 50.d.

13

c.

Any administrative decision made by EPA pursuant to ¶ 50.b

14

shall be reviewable by this Court, provided that a motion for judicial review of the

15

decision is filed by Settling Defendants with the Court and served on all Parties within 30

16

days after receipt of EPA’s decision. The motion shall include a description of the matter

17

in dispute, the efforts made by the Parties to resolve it, the relief requested, and the

18

schedule, if any, within which the dispute must be resolved to ensure orderly

19

implementation of this CD. The United States may file a response to Settling Defendants’

20

motion within 30 days.

21

d.

In proceedings on any dispute governed by this Paragraph,

22

Settling Defendants shall have the burden of demonstrating that the decision of the

23

Superfund Division Director is arbitrary and capricious or otherwise not in accordance

24

with law. Judicial review of EPA’s decision shall be on the administrative record

25

compiled pursuant to ¶ 50.a.

26
27

51.

Formal dispute resolution for disputes that neither pertain to the

selection or adequacy of any response action nor are otherwise accorded review on the

28

47

1

administrative record under applicable principles of administrative law shall be governed

2

by this Paragraph.

3

a.

The Director of the Superfund Division, EPA Region IX, will

4

issue a final decision resolving the dispute based on the statements of position and reply,

5

if any, served under ¶ 49. The Superfund Division Director’s decision shall be binding on

6

Settling Defendants unless, within 30 days after receipt of the decision, Settling

7

Defendants file with this Court and serve on the Parties a motion for judicial review of

8

the decision setting forth the matter in dispute, the efforts made by the Parties to resolve

9

it, the relief requested, and the schedule, if any, within which the dispute must be

10

resolved to ensure orderly implementation of the CD. The United States may file a

11

response to Settling Defendants’ motion within 30 days.

12

b.

Notwithstanding ¶ J (CERCLA § 113(j) record review of

13

Work) of Section I (Background), judicial review of any dispute governed by this

14

Paragraph shall be governed by applicable principles of law.

15

52.

The invocation of formal dispute resolution procedures under this

16

Section does not extend, postpone, or affect in any way any obligation of Settling

17

Defendants under this CD, except as provided in ¶ 36 (Contesting Future Response

18

Costs), as agreed by EPA, after a reasonable opportunity for review and comment by

19

NNEPA, or as determined by the Court. Stipulated penalties with respect to the disputed

20

matter shall continue to accrue, but payment shall be stayed pending resolution of the

21

dispute, as provided in ¶ 62. Notwithstanding the stay of payment, stipulated penalties

22

shall accrue from the first day of noncompliance with any applicable provision of this

23

CD. In the event that Settling Defendants do not prevail on the disputed issue, stipulated

24

penalties shall be assessed and paid as provided in Section XIV (Stipulated Penalties).

25

53.

Disputes Regarding Future Response Costs Owed to the Navajo

26

Nation. Disputes arising under this CD between the Navajo Nation and Settling

27

Defendants that relate to Future Response Costs owed to the Navajo Nation, including

28

assessment of stipulated penalties by the Navajo Nation regarding such Future Response

48

1

Costs, shall not be considered disputes on the record pursuant to ¶ 50 and shall be

2

governed in the following manner. The procedures for resolving the disputes mentioned

3

in this Paragraph shall be the same as provided for in ¶¶ 48 to 49 and ¶¶ 51 to 52, except

4

that ¶ 49.c (provision regarding whether to proceed under ¶ 50 or 51) shall not apply;

5

each reference to EPA shall read as a reference to NNEPA; each reference to NNEPA or

6

the Navajo Nation shall be ignored; each reference to the Director of the Superfund

7

Division, EPA Region IX, shall read as a reference to the Director of NNEPA; and each

8

reference to the United States shall be read as a reference to the Navajo Nation. In

9

addition, for purposes of this Paragraph only, references to “informal negotiations” in ¶

10

48 shall mean the Navajo informal dispute resolution procedure, known as the “talking

11

things out” approach, attached to this CD as Appendix E.

12
13

XIV. STIPULATED PENALTIES
54.

Settling Defendants shall be liable for stipulated penalties in the

14

amounts set forth in ¶¶ 55 and 56 to both the United States and the Navajo Nation for

15

failure to comply with the requirements of this CD specified below, unless excused under

16

Section XII (Force Majeure). “Compliance” by Settling Defendants shall include

17

completion of all activities and obligations, including payments, required under this CD,

18

or any deliverable approved under this CD, in accordance with all applicable

19

requirements of law, this CD, the SOW, and any deliverables approved under this CD

20

and within the specified time schedules established by and approved under this CD.

21
22
23
24

55.

Stipulated Penalty Amounts - Work (Including Payments and

Excluding Deliverables).
a.

The following stipulated penalties shall accrue per violation per

day for any noncompliance identified in ¶ 55.b:

25
26
27
28

49

1

Period of

Penalty Per

Noncompliance

Per Day Due to the

Violation Per Day

United States

2

Penalty Per Violation

Due to the Navajo

3
4

Nation

5

1st through 14th day

8

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

$ 2,500

$ 3,750

$ 3,750

b.

9
10

$ 2,500

31st day and beyond

7

$ 1,250

15th through 30th day

6

$ 1,250

Compliance Milestones.
(1)

Payment of Past and Future Response Costs to the United

States and/or the Navajo Nation in compliance with the timelines and other
requirements of Section X (Payment for Response Costs);
(2)

Performance of each component of Work required by the

SOW, with the exception of submission of deliverables, in compliance with the
timelines and other substantive and procedural requirements of Section VI
(Performance of the Work) and the SOW; and
(3)

Establishment and maintenance of financial assurance in

compliance with the timelines and other substantive and procedural requirements
of Section IX (Financial Assurance).
56.

Stipulated Penalty Amounts - Deliverables.
a.

Material Defects. If an initially submitted or resubmitted

deliverable contains a material defect, and the deliverable is disapproved or modified by
EPA under Sections 13 (Approval of Deliverables) and 16 (Navajo Nation Participation)
of the SOW due to such material defect, then the material defect shall constitute a lack of
compliance for purposes of ¶ 54. The provisions of Section XIII (Dispute Resolution) and
Section XIV (Stipulated Penalties) shall govern the accrual and payment of any stipulated
penalties regarding Settling Defendants’ submissions under this CD.
b.

The following stipulated penalties shall accrue per violation per

day for failure to submit timely or adequate deliverables pursuant to the CD:
50

1

Period of

Penalty Per

Noncompliance

Per Day Due to the

Violation Per Day

United States

2

Penalty Per Violation

Due to the Navajo

3
4

Nation

5

1st through 14th day

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

57.

$ 1,250

$ 1,250

31st day and beyond

7

$ 500

15th through 30th day

6

$ 500

$ 2,500

$ 2,500

In the event that EPA assumes performance of a portion or all of the

Work pursuant to ¶ 70 (Work Takeover), Settling Defendants shall be liable for a
stipulated penalty in the amount of $ 6 million, payable in equal share to the United
States and the Navajo Nation. Stipulated penalties under this Paragraph are in addition to
the remedies available under ¶¶ 26 (Access to Financial Assurance) and 70 (Work
Takeover).
58.

All penalties shall begin to accrue on the day after the complete

performance is due or the day a violation occurs and shall continue to accrue through the
final day of the correction of the noncompliance or completion of the activity. However,
stipulated penalties shall not accrue: (a) with respect to a deficient submission under
Section 13 (Approval of Deliverables) of the SOW, during the period, if any, beginning
on the 31st day after EPA’s receipt of such submission until the date that EPA notifies
Settling Defendants of any deficiency; (b) with respect to a decision by the Director of
the Superfund Division, EPA Region IX, or the Director of NNEPA, as the case may be,
under ¶¶ 50.b or 51.a of Section XIII (Dispute Resolution), as made applicable to the
Navajo Nation by ¶ 53, during the period, if any, beginning on the 21st day after the date
that Settling Defendants’ reply to EPA’s or NNEPA’s Statement of Position is received
until the date that the applicable Director issues a final decision regarding such dispute;
or (c) with respect to judicial review by this Court of any dispute under Section XIII
(Dispute Resolution), during the period, if any, beginning on the 31st day after the
Court’s receipt of the final submission regarding the dispute until the date that the Court
51

1

issues a final decision regarding such dispute. Nothing in this CD shall prevent the

2

simultaneous accrual of separate penalties for separate violations of this CD.

3

59.

Following EPA’s determination that Settling Defendants have failed

4

to comply with a requirement of this CD, EPA may give Settling Defendants written

5

notification of the same and describe the noncompliance. EPA may send Settling

6

Defendants a written demand for payment of the penalties. However, penalties shall

7

accrue as provided in the preceding Paragraph regardless of whether EPA has notified

8

Settling Defendants of a violation.

9

60.

Following NNEPA’s determination that Settling Defendants have

10

failed to comply with a requirement of this CD that pertains to Future Response Costs

11

owed to the Navajo Nation, NNEPA may give Settling Defendants written notification of

12

the same and describe the noncompliance. NNEPA may send Settling Defendants a

13

written demand for payment of the penalties. However, penalties shall accrue as provided

14

in ¶ 58 regardless of whether NNEPPA has notified Settling Defendants of a violation.

15

61.

All penalties accruing under this Section shall be due and payable to

16

the United States and the Navajo Nation within 30 days after Settling Defendants’ receipt

17

from EPA or NNEPA, as applicable, of a demand for payment of the penalties, unless

18

Settling Defendants invoke the Dispute Resolution procedures under Section XIII

19

(Dispute Resolution) within the 30-day period. All payments to the United States under

20

this Section shall indicate that the payment is for stipulated penalties and shall be made in

21

accordance with ¶ 35.b. All payments to the Navajo Nation under this Section shall

22

indicate that payment is for stipulated penalties and shall be made in accordance with

23

¶ 35.c.

24
25
26
27

62.

Penalties shall continue to accrue as provided in ¶ 58 during any

dispute resolution period, but need not be paid until the following:
a.

If the dispute is resolved by agreement of the parties or by a

decision of EPA or NNEPA, as applicable, that is not appealed to this Court, accrued

28

52

1

penalties determined to be owed shall be paid to EPA and/or NNEPA within 15 days

2

after the date of the agreement or the receipt of EPA’s or NNEPA’s decision or order;

3

b.

If the dispute is appealed to this Court and the United States

4

and/or the Navajo Nation prevails in whole or in part, Settling Defendants shall pay all

5

accrued penalties determined by the Court to be owed to EPA and/or NNEPA within 60

6

days after receipt of the Court’s decision or order, except as provided in ¶ 62.c;

7

c.

If the District Court’s decision is appealed by any Party,

8

Settling Defendants shall pay all accrued penalties determined by the District Court to be

9

owed to the United States and/or the Navajo Nation into an interest-bearing escrow

10

account, established at a duly chartered bank or trust company that is insured by the

11

FDIC, within 60 days after receipt of the Court’s decision or order. Penalties shall be paid

12

into this account as they continue to accrue, at least every 60 days. Within 15 days after

13

receipt of the final appellate court decision, the escrow agent shall pay the balance of the

14

account to the prevailing party or parties.

15

63.

If Settling Defendants fail to pay stipulated penalties when due,

16

Settling Defendants shall pay Interest on the unpaid stipulated penalties as follows: (a) if

17

Settling Defendants have timely invoked dispute resolution such that the obligation to

18

pay stipulated penalties has been stayed pending the outcome of dispute resolution,

19

Interest shall accrue from the date stipulated penalties are due pursuant to ¶ 62 until the

20

date of payment; and (b) if Settling Defendants fail to timely invoke dispute resolution,

21

Interest shall accrue from the date of demand under ¶ 61 until the date of payment. If

22

Settling Defendants fail to pay stipulated penalties and Interest when due, the United

23

States or the Navajo Nation may institute proceedings to collect the penalties and Interest.

24

64.

The payment of penalties and Interest, if any, shall not alter in any

25

way Settling Defendants’ obligation to complete the performance of the Work required

26

under this CD.

27
28

65.

Nothing in this CD shall be construed as prohibiting, altering, or in

any way limiting the ability of the United States or the Navajo Nation to seek any other

53

1

remedies or sanctions available by virtue of Settling Defendants’ violation of this CD or

2

of the statutes and regulations upon which it is based, including, but not limited to,

3

penalties pursuant to Section 122(l) of CERCLA, 42 U.S.C. § 9622(l), provided,

4

however, that the United States shall not seek civil penalties pursuant to Section 122(l) of

5

CERCLA for any violation for which a stipulated penalty is provided in this CD, except

6

in the case of a willful violation of this CD.

7

66.

Notwithstanding any other provision of this Section, the United

8

States and Navajo Nation may, in either Party’s unreviewable discretion, waive any

9

portion of stipulated penalties that have accrued to that Party pursuant to this CD.

10
11

XV.
67.

COVENANTS BY THE UNITED STATES

Covenants for Settling Defendants by United States. Except as

12

provided in ¶69 (United States Reservations of Rights), the United States covenants not

13

to sue or to take administrative action against Settling Defendants pursuant to Sections

14

106 and 107(a) of CERCLA for the Work, Past Response Costs, Future Response Costs,

15

Past Settling Defendants Response Costs, and Future Settling Defendants Response

16

Costs. These covenants shall take effect upon the Effective Date. These covenants are

17

conditioned upon the satisfactory performance by Settling Defendants of their obligations

18

under this CD. These covenants extend only to Settling Defendants and do not extend to

19

any other person.

20

68.

Covenant for SFAs by United States. Except as provided in ¶ 69

21

(United States Reservations of Rights), EPA covenants not to take administrative action

22

against SFAs pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and

23

9607(a), and Section 7003 of RCRA, 42 U.S.C. § 6973, for the Work, Past Response

24

Costs, and Future Response Costs. EPA’s covenant shall take effect upon the Effective

25

Date. EPA’s covenant is conditioned upon the satisfactory performance by SFAs of their

26

obligations under this CD. EPA’s covenant extends only to SFAs and does not extend to

27

any other person.

28

54

1

69.

United States Reservation of Rights. The United States reserves,

2

and this CD is without prejudice to, all rights against Settling Defendants, and EPA

3

reserves, and this CD is without prejudice to, all rights against SFAs, with respect to all

4

matters not expressly included within the United States’ covenants. Notwithstanding any

5

other provision of this CD, the United States reserves all rights against Settling

6

Defendants, and EPA reserves, and this CD is without prejudice to, all rights against

7

SFAs, with respect to:

8
9

a.

liability for failure by Settling Defendants or SFAs to meet a

requirement of this CD;

10

b.

liability based on the ownership of any of the Mine Sites by

11

Settling Defendants or SFAs when such ownership commences after signature of this CD

12

by Settling Defendants or SFAs;

13

c.

liability based on the operation of any of the Mine Sites by

14

Settling Defendants when such operation commences after signature of this CD by

15

Settling Defendants and does not arise solely from Settling Defendants’ performance of

16

the Work and liability based on the operation of any of the Mine Sites by SFAs when

17

such operation commences after signature of this CD by SFAs;

18

d.

liability based on Settling Defendants’ or SFAs’ transportation,

19

treatment, storage, or disposal, or arrangement for transportation, treatment, storage, or

20

disposal of Waste Material at or in connection with any of the Mine Sites, other than as

21

provided in an action memorandum or record of decision issued for a Mine Site or Mine

22

Sites, the Work, or otherwise ordered by EPA, after signature of this CD by Settling

23

Defendants or SFAs;

24
25

e.
Response Costs;

26
27
28

liability for costs not included within the definition of Future

f.

liability for performance of response actions other than the

g.

criminal liability;

Work;

55

1
2

h.

liability for violations of federal, tribal, or state law that occur

during or after implementation of the Work;

3

i.

liability, prior to achievement of Performance Standards, for

4

additional response actions that EPA determines are necessary to achieve and maintain

5

Performance Standards or to carry out and maintain the effectiveness of any remedy set

6

forth in an action memorandum or a record of decision issued for a Mine Site or Mine

7

Sites, but that cannot be required pursuant to ¶ 14 (Modification of SOW or Related

8

Deliverables);

9
10

j.

natural resources, and for the costs of any natural resource damage assessments;

11
12

k.

15
16

liability arising from the past, present, or future disposal,

release, or threat of release of Waste Material outside of the Mine Sites; and

13
14

liability for damages for injury to, destruction of, or loss of

l.

liability for costs incurred or to be incurred by the Agency for

Toxic Substances and Disease Registry related to the Mine Sites.
70.

Work Takeover.
a.

In the event EPA determines, after EPA provides a reasonable

17

opportunity for review and comment by NNEPA, that Settling Defendants: (1) have

18

ceased implementation of any portion of the Work; (2) are seriously or repeatedly

19

deficient or late in their performance of the Work; or (3) are implementing the Work in a

20

manner that may cause an endangerment to human health or the environment, EPA may

21

issue a written notice (“Work Takeover Notice”) to Settling Defendants. Any Work

22

Takeover Notice issued by EPA will specify the grounds upon which such notice was

23

issued and will provide Settling Defendants a period of 21 days within which to remedy

24

the circumstances giving rise to EPA’s issuance of such notice.

25

b.

If, after expiration of the 21-day notice period specified in

26

¶ 70.a, Settling Defendants have not remedied to EPA’s satisfaction the circumstances

27

giving rise to EPA’s issuance of the relevant Work Takeover Notice, EPA may at any

28

time thereafter assume the performance of all or any portion(s) of the Work as EPA

56

1

deems necessary (“Work Takeover”). EPA will notify Settling Defendants in writing

2

(which writing may be electronic) if EPA determines that implementation of a Work

3

Takeover is warranted under this ¶ 70.b. Funding of Work Takeover costs is addressed

4

under ¶ 26 (Access to Financial Assurance).

5

c.

If EPA implements a Work Takeover pursuant to Paragraph 70,

6

DOJ, on behalf of the SFAs, shall take steps, as described in this Paragraph, to cause the

7

remaining Trust Assets to be paid towards the Work. Following discussion with EPA,

8

DOJ may, at an appropriate time, either: (1) direct the trustee for the U.S. Four Corners

9

Uranium Mines Trust Account (“Trustee”) to, pursuant to a schedule to be agreed upon

10

with EPA, but not more often than monthly, transfer funds to the Cyprus Amax/Western

11

Nuclear Mine Sites Special Account to reimburse EPA for its costs incurred in

12

conducting or financing response actions at or in connection with the Mine Sites, until

13

either EPA terminates the Work Takeover or the Trust Account is exhausted; or (2) direct

14

the Trustee (or successor) to perform the Work under the CD, in accordance with the

15

SOW, until either EPA terminates the Work Takeover or the Trust Account is exhausted.

16

d.

If DOJ, on behalf of the SFAs, directs the Trustee to perform

17

the Work, DOJ shall take the necessary steps to convert the Trust into an environmental

18

response trust capable of performing the Work. The provisions of Paragraphs 70.c and

19

70.d to so convert the Trust (which may include modification of the Trust Agreement or

20

termination of the Trust and Trust Agreement and creation of a successor Trust) shall

21

supersede any contrary provisions in the Trust Agreement regarding modification or

22

termination. Further, any modifications to the Trust Agreement or any new trust

23

agreement created pursuant to Paragraphs 70.c and 70.d shall not require the agreement

24

or signature of the Trustee or Settling Defendants. The Navajo Nation shall be designated

25

a beneficiary of the environmental response trust. DOJ, however, shall have the authority

26

to determine what powers and rights the environmental response trust will accord each

27

beneficiary and such powers and rights need not be the same for each beneficiary,

28

provided that such authority shall not affect the trustee’s fiduciary duties to the Navajo

57

1

Nation as a beneficiary of the environmental response trust. Finally, with the exceptions

2

of Section XI (indemnification and insurance) and Section XIV (stipulated penalties), the

3

provisions of this Consent Decree and the SOW governing performance of the Work

4

shall apply to the environmental response trust.

5

e.

Notwithstanding anything to the contrary in this Paragraph,

6

only DOJ, consistent with Paragraph 4.2.2 of the Trust Agreement, shall have the

7

authority to act pursuant to Paragraphs 70.c and 70.d.

8

f.

Settling Defendants may invoke the procedures set forth in ¶ 50

9

(Record Review) to dispute EPA’s implementation of a Work Takeover under ¶ 70.b.

10

However, notwithstanding Settling Defendants’ invocation of such dispute resolution

11

procedures, and during the pendency of any such dispute, EPA may in its sole discretion

12

commence and continue a Work Takeover under ¶ 70.b until the earlier of (1) the date

13

that Settling Defendants remedy, to EPA’s satisfaction, the circumstances giving rise to

14

EPA’s issuance of the relevant Work Takeover Notice, or (2) the date that a final decision

15

is rendered in accordance with ¶ 50 (Record Review) requiring EPA to terminate such

16

Work Takeover.

17

71.

Notwithstanding any other provision of this CD, the United States

18

and the Navajo Nation retain all authority and reserve all rights to take any and all

19

response actions authorized by law.

20
21

XVI. COVENANTS BY THE NAVAJO NATION
72.

Covenants for Settling Defendants by the Navajo Nation. Except

22

as provided in ¶ 75 (Navajo Nation Reservations of Rights), the Navajo Nation covenants

23

not to sue or to take administrative action against Settling Defendants pursuant to Section

24

107(a) of CERCLA and Sections 2403, 2501, and 2503 of NNCERCLA for the Work,

25

NN Past Response Costs, and Future Response Costs owed to the Navajo Nation. These

26

covenants shall take effect upon the Effective Date. These covenants are conditioned

27

upon the satisfactory performance by Settling Defendants of their obligations under this

28

58

1

CD. These covenants extend only to Settling Defendants and do not extend to any other

2

person.

3

73.

Covenants for SFAs by the Navajo Nation. Except as provided in

4

¶ 75 (Navajo Nation Reservations of Rights), the Navajo Nation covenants not to sue or

5

to take administrative action against SFAs pursuant to Section 107(a) of CERCLA and

6

Sections 2403, 2501, and 2503 of NNCERCLA for the Work, NN Past Response Costs,

7

and Future Response Costs owed to the Navajo Nation. These covenants shall take effect

8

upon the Effective Date. These covenants are conditioned upon the satisfactory

9

performance by SFAs of their obligations under this CD. These covenants extend only to

10
11

SFAs and do not extend to any other person.
74.

Navajo Nation Use of Residual Trust Assets. Following

12

Certification of Work Completion pursuant to ¶ 104, if any residual funds from the Trust

13

Account are paid to NNEPA, NNEPA shall use the funds for the sole purpose of

14

performing response actions under CERCLA, not inconsistent with the NCP, at

15

abandoned uranium mines on Navajo Nation lands where no viable non-Federal

16

potentially responsible party has been identified. Effective upon receipt by NNEPA of

17

any such residual funds, the Navajo Nation forever releases, discharges, covenants, and

18

agrees not to assert (by way of the commencement of an action or in any other fashion)

19

any and all claims, causes of action, suits or demands of any kind whatsoever, in law or

20

in equity, that the Navajo Nation may have had, or hereafter has, against the United

21

States, including, but not limited to, claims under CERLCA Sections 107 and 113, 42

22

U.S.C. §§ 9607 and 9613, relating to any work performed as part of response actions at

23

any abandoned uranium mines using residual funds from the Trust Assets pursuant to this

24

Paragraph.

25

75.

Navajo Nation Reservation of Rights. The Navajo Nation reserves,

26

and this CD is without prejudice to, all rights against Settling Defendants and SFAs with

27

respect to all matters not expressly included within the Navajo Nation’s covenants.

28

Notwithstanding any other provision of this CD, the Navajo Nation reserves, and this CD

59

1

is without prejudice to, all rights against Settling Defendants, and the Navajo Nation

2

reserves, and this CD is without prejudice to, all rights against SFAs, with respect to:

3
4

a.

liability for failure by Settling Defendants or SFAs to meet a

requirement of this CD;

5

b.

liability based on the ownership of any of the Mine Sites by

6

Settling Defendants or SFAs when such ownership commences after signature of this CD

7

by Settling Defendants or SFAs;

8
9

c.

liability based on the operation of any of the Mine Sites by

Settling Defendants when such operation commences after signature of this CD by

10

Settling Defendants and does not arise solely from Settling Defendants’ performance of

11

the Work and liability based on the operation of any of the Mine Sites by SFAs when

12

such operation commences after signature of this CD by SFAs;

13

d.

liability based on Settling Defendants’ or SFAs’ transportation,

14

treatment, storage, or disposal, or arrangement for transportation, treatment, storage, or

15

disposal of Waste Material at or in connection with any of the Mine Sites, other than as

16

provided in an action memorandum or record of decision issued for a Mine Site or Mine

17

Sites, the Work, or otherwise ordered by EPA, after signature of this CD by Settling

18

Defendants or SFAs;

19
20

e.

Response Costs owed to the Navajo Nation;

21
22
23
24
25
26
27
28

liability for costs not included within the definition of Future

f.

liability for performance of response action other than the

g.

liability for violations of federal or Navajo law that occur

Work;

during or after implementation of the Work;
h.

liability for damages for injury to, destruction of, or loss of

natural resources, and for the costs of any natural resource damage assessments; and
i.

liability arising from the past, present, or future disposal,

release, or threat of release of Waste Material outside of the Mine Sites.

60

1

XVII. COVENANTS BY SETTLING DEFENDANTS AND SFAS

2

76.

Covenants by Settling Defendants. Subject to the reservations in ¶¶

3

79 and 80, Settling Defendants covenant not to sue and agree not to assert any claims or

4

causes of action against the United States or the Navajo Nation with respect to the Work,

5

Past Response Costs, NN Past Response Costs, Future Response Costs, Past Settling

6

Defendants Response Costs, Future Settling Defendants Response Costs, and this CD,

7

including, but not limited to:

8

a.

9

any direct or indirect claim for reimbursement from the EPA

Hazardous Substance Superfund through CERCLA §§ 106(b)(2), 107, 111, 112 or 113,

10

or from the NNCERCLA Hazardous Substances Fund pursuant to NNCERCLA, 4

11

N.N.C. §§ 2403(E), 2501 (as modified by § 2502(B)), 2503, or 2701 (to the extent

12

applicable), or any other provision of law;

13

b.

any claims under CERCLA §§ 107 or 113, RCRA

14

Section 7002(a), 42 U.S.C. § 6972(a), NNCERCLA, 4 N.N.C. § 2501 (as modified by §

15

2502(B)), or 2503, or state law regarding the Work, past response actions regarding the

16

Mine Sites, Past Response Costs, NN Past Response Costs, Future Response Costs, Past

17

Settling Defendants Response Costs, Future Settling Defendants Response Costs, and this

18

CD;

19

c.

any claims arising out of response actions at or in connection

20

with the Mine Sites, including any claim under the United States Constitution, the Tucker

21

Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, or at common

22

law; or

23

d.

any direct or indirect claim for return of unused amounts from

24

the NNCERCLA Cyprus Amax/Western Nuclear Sites Special Account , except for

25

unused amounts that NNEPA determines shall be returned to Settling Defendants in

26

accordance with ¶ 33.d (Unused Amount).

27
28

77.

This CD shall not have any effect on claims or causes of action that

Settling Defendants may have pursuant to CERCLA against the Navajo Nation or any of

61

1

its agencies or departments, other than NNEPA, based on the alleged status of the Navajo

2

Nation or any of its agencies or departments, other than NNEPA, as a potentially

3

responsible party pursuant to CERCLA, 42 U.S.C. § 9607(a), relating to the Work, Past

4

Response Costs, NN Past Response Costs, Future Response Costs, Past Settling

5

Defendants Response Costs, and Future Settling Defendants Response Costs, nor shall it

6

have any effect on claims or causes of action against the Navajo Nation or any of its

7

agencies or departments, other than NNEPA, for contractual indemnification, or for other

8

contractual remedies, that Settling Defendants may have relating to the Work, Past

9

Response Costs, NN Past Response Costs, Past Settling Defendants Response Costs,

10

Future Response Costs, and Future Settling Defendants Response Costs.

11

Notwithstanding the foregoing sentence, the Navajo Nation, including its agencies and

12

departments, has not waived its sovereign immunity, does not agree that it has any

13

liability under CERCLA due to its status as a federally recognized Indian tribe, nor does

14

it agree that it has any liability for claims or causes of action for contractual

15

indemnification or other contractual remedies that Settling Defendants may have relating

16

to the Work, Past Response Costs, NN Past Response Costs, Future Response Costs, and

17

Future Settling Defendants Response Costs.

18

78.

Covenant by SFAs. SFAs agree not to assert any direct or indirect

19

claim for reimbursement from the EPA Hazardous Substance Superfund through

20

CERCLA §§ 106(b)(2), 107, 111, 112, or 113, or any other provision of law with respect

21

to the Work, past response actions regarding the Mine Sites, Past Response Costs, NN

22

Past Response Costs, Future Response Costs, Past Settling Defendants Response Costs,

23

Future Settling Defendants Response Costs, and this CD. This covenant does not

24

preclude demand for reimbursement from the Superfund of costs incurred by a SFA in

25

the performance of its duties (other than pursuant to this CD) as lead or support agency

26

under the NCP.

27

79.

28

Except as provided in ¶¶ 82 (Waiver of Claims by Settling

Defendants) and 88 (Res Judicata and Other Defenses), the covenants in this Section shall

62

1

not apply if the United States or the Navajo Nation brings a cause of action or issues an

2

order pursuant to any of the reservations in Section XV (Covenants by the United States)

3

or Section XVI (Covenants by the Navajo Nation), other than in ¶¶ 69.a (claims by

4

United States for failure to meet a requirement of the CD), 69.g (criminal liability

5

prosecuted by the United States), 69.h (violations of federal law during or after

6

implementation of the Work), 75.a (claims by Navajo Nation for a failure to meet a

7

requirement of the CD) and 75.g (violations of federal or Navajo law during or after

8

implementation of the Work), but only to the extent that Settling Defendants’ claims arise

9

from the same response action, response costs, or damages that the United States or the

10
11

Navajo Nation is seeking pursuant to the applicable reservation.
80.

Settling Defendants reserve, and this CD is without prejudice to,

12

claims against the United States, subject to the provisions of Chapter 171 of Title 28 of

13

the United States Code, and brought pursuant to any statute other than CERCLA or

14

RCRA and for which the waiver of sovereign immunity is found in a statute other than

15

CERCLA or RCRA, for money damages for injury or loss of property or personal injury

16

or death caused by the negligent or wrongful act or omission of any employee of the

17

United States, as that term is defined in 28 U.S.C. § 2671, while acting within the scope

18

of his or her office or employment under circumstances where the United States, if a

19

private person, would be liable to the claimant in accordance with the law of the place

20

where the act or omission occurred. However, the foregoing shall not include any claim

21

based on EPA’s selection of response actions, or the oversight or approval of Settling

22

Defendants’ deliverables or activities. Settling Defendants also reserve, and this CD is

23

without prejudice to, contribution claims against SFAs in the event any claim is asserted

24

by the United States or the Navajo Nation against Settling Defendants pursuant to any of

25

the reservations in Sections XV and XVI (Covenants by Plaintiffs) other than in ¶¶ 69.a

26

(claims for failure to meet a requirement of the CD), 69.g (criminal liability), 69.h

27

(violations of federal/state law during or after implementation of the Work), 75.a (claims

28

by Navajo Nation for a failure to meet a requirement of the CD) and 75.g (violations of

63

1

federal or Navajo law during or after implementation of the Work), but only to the extent

2

that Settling Defendants’ claims arise from the same response action, response costs, or

3

damages that the United States or the Navajo Nation is seeking pursuant to the applicable

4

reservation.

5

81.

Nothing in this CD shall be deemed to constitute approval or

6

preauthorization of a claim within the meaning of Section 111 of CERCLA, 42 U.S.C.

7

§ 9611, or 40 C.F.R. § 300.700(d).

8
9

82.

Waiver of Claims by Settling Defendants.
a.

Settling Defendants agree not to assert any claims and to waive

10

all claims or causes of action (including but not limited to claims or causes of action

11

under Sections 107(a) and 113 of CERCLA and NNCERCLA, 4 N.N.C. §§2501-2503)

12

that they may have:

13

(1)

De Micromis Waiver. For all matters relating to the Mine

14

Sites against any person where the person’s liability to Settling Defendants with

15

respect to a Mine Site is based solely on having arranged for disposal or treatment,

16

or for transport for disposal or treatment, of hazardous substances at a Mine Site,

17

or having accepted for transport for disposal or treatment of hazardous substances

18

at a Mine Site, if all or part of the disposal, treatment, or transport occurred before

19

April 1, 2001, and the total amount of material containing hazardous substances

20

contributed by such person to the Mine Site was less than 110 gallons of liquid

21

materials or 200 pounds of solid materials;

22

(2)

De Minimis/Ability to Pay Waiver. For response costs

23

relating to the Mine Sites against any person that has entered or in the future enters

24

into a final CERCLA § 122(g) de minimis settlement, or a final settlement based

25

on limited ability to pay, with EPA with respect to a Mine Site.

26
27
28

b.

Exceptions to Waivers.
(1)

The waivers under this ¶ 82 shall not apply with respect to

any defense, claim, or cause of action that Settling Defendants may have against

64

1

any person otherwise covered by such waivers if such person asserts a claim or

2

cause of action relating to the Mine Sites against Settling Defendants.

3

(2)

The waiver under ¶ 82.a(1) (De Micromis Waiver) shall not

4

apply to any claim or cause of action against any person otherwise covered by

5

such waiver if EPA determines that: (i) the materials containing hazardous

6

substances contributed to a Mine Site by such person contributed significantly or

7

could contribute significantly, either individually or in the aggregate, to the cost of

8

the response action or natural resource restoration at the Mine Site; or (ii) such

9

person has failed to comply with any information request or administrative

10

subpoena issued pursuant to Section 104(e) or 122(e)(3)(B) of CERCLA, 42

11

U.S.C. § 9604(e) or 9622(e)(3)(B), or Section 3007 of RCRA, 42 U.S.C. § 6927,

12

or has impeded or is impeding, through action or inaction, the performance of a

13

response action or natural resource restoration with respect to the Mine Site; or if

14

(iii) such person has been convicted of a criminal violation for the conduct to

15

which the waiver would apply and that conviction has not been vitiated on appeal

16

or otherwise.

17
18

XVIII.
83.

EFFECT OF SETTLEMENT; CONTRIBUTION
Except as provided in ¶ 82 (Waiver of Claims by Settling

19

Defendants), nothing in this CD shall be construed to create any rights in, or grant any

20

cause of action to, any person not a Party to this CD. Except as provided in Section XVII

21

(Covenants by Settling Defendants and SFAs), each of the Parties expressly reserves any

22

and all rights (including, but not limited to, pursuant to Section 113 of CERCLA,

23

42 U.S.C. § 9613), defenses, claims, demands, and causes of action that each Party may

24

have with respect to any matter, transaction, or occurrence relating in any way to the

25

Mine Sites against any person not a Party hereto. Nothing in this CD diminishes the right

26

of the United States, pursuant to Section 113(f)(2) and (3) of CERCLA, 42 U.S.C.

27

§ 9613(f)(2)-(3), to pursue any such persons to obtain additional response costs or

28

65

1

response actions and to enter into settlements that give rise to contribution protection

2

pursuant to Section 113(f)(2).

3

84.

The Parties agree, and by entering this CD this Court finds, that this

4

CD constitutes a judicially approved settlement pursuant to which Settling Defendants

5

and each Settling Federal Agency has, as of the Effective Date, resolved liability to the

6

United States within the meaning of Section 113(f)(2) of CERCLA, 42 U.S.C. §

7

9613(f)(2), and is entitled, as of the Effective Date, to protection from contribution

8

actions or claims as provided by Section 113(f)(2) of CERCLA, or as may be otherwise

9

provided by law, for the “matters addressed” in this CD. The “matters addressed” in this

10

CD are the Work, Past Response Costs, NN Past Response Costs, Future Response Costs,

11

Past Settling Defendants Response Costs, and Future Settling Defendants Response

12

Costs.

13

85.

The Parties further agree, and by entering this CD this Court finds,

14

that the complaint filed by the United States in this action is a civil action within the

15

meaning of Section 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(1), and that this CD

16

constitutes a judicially approved settlement pursuant to which each Settling Defendant

17

and each Settling Federal Agency has, as of the Effective Date, resolved liability to the

18

United States within the meaning of Section 113(f)(3)(B) of CERCLA, 42 U.S.C. §

19

9613(f)(3)(B).

20

86.

Settling Defendants shall, with respect to any suit or claim brought

21

by them for matters related to this CD, notify the United States and the Navajo Nation in

22

writing no later than 45 days prior to the initiation of such suit or claim.

23

87.

Settling Defendants shall, with respect to any suit or claim brought

24

against them for matters related to this CD, notify in writing the United States and the

25

Navajo Nation within 10 days after service of the complaint on Settling Defendants. In

26

addition, Settling Defendants shall notify the United States and the Navajo Nation within

27

10 days after service or receipt of any Motion for Summary Judgment and within 10 days

28

after receipt of any order from a court setting a case for trial.

66

1

88.

Res Judicata and Other Defenses. In any subsequent

2

administrative or judicial proceeding initiated by the United States or the Navajo Nation

3

for injunctive relief, recovery of response costs, or other appropriate relief relating to the

4

Mine Sites, Settling Defendants (and, with respect to a Navajo Nation action, SFAs) shall

5

not assert, and may not maintain, any defense or claim based upon the principles of

6

waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or other

7

defenses based upon any contention that the claims raised by the United States or the

8

Navajo Nation in the subsequent proceeding were or should have been brought in the

9

instant case; provided, however, that nothing in this Paragraph affects the enforceability

10

of the covenants not to sue set forth in Sections XV (Covenants by the United States) and

11

XVI (Covenants by the Navajo Nation).

12
13

XIX. ACCESS TO INFORMATION
89.

Settling Defendants shall provide to EPA and NNEPA, upon request,

14

copies of all records, reports, documents, and other information (including records,

15

reports, documents, and other information in electronic form) (referred to collectively in

16

this Section and Section XX as “Records”) within Settling Defendants’ possession or

17

control or that of their contractors or agents relating to activities at the Mine Sites or to

18

the implementation of this CD, including, but not limited to, sampling, analysis, chain of

19

custody records, manifests, trucking logs, receipts, reports, sample traffic routing,

20

correspondence, or other documents or information regarding the Work. Settling

21

Defendants shall also make available to EPA and NNEPA, for purposes of investigation,

22

information gathering, or testimony, their employees, agents, or representatives with

23

knowledge of relevant facts concerning the performance of the Work.

24
25

90.

Privileged and Protected Claims.
a.

Settling Defendants may assert that all or part of a Record

26

requested by Plaintiffs is privileged or protected as provided under federal law, in lieu of

27

providing the Record, provided Settling Defendants comply with ¶ 90.b, and except as

28

provided in ¶ 90.c.

67

1

b.

If Settling Defendants assert a claim of privilege or protection,

2

they shall provide Plaintiffs with the following information regarding such Record: its

3

title; its date; the name, title, affiliation (e.g., company or firm), and address of the author,

4

of each addressee, and of each recipient; a description of the Record’s contents; and the

5

privilege or protection asserted. If a claim of privilege or protection applies only to a

6

portion of a Record, Settling Defendants shall provide the Record to Plaintiffs in redacted

7

form to mask the privileged or protected portion only. Settling Defendants shall retain all

8

Records that they claim to be privileged or protected until Plaintiffs have had a

9

reasonable opportunity to dispute the privilege or protection claim and any such dispute

10

has been resolved in Settling Defendants’ favor.

11

c.

Settling Defendants may make no claim of privilege or

12

protection regarding: (1) any data regarding the Mine Sites, including, but not limited to,

13

all sampling, analytical, monitoring, hydrogeologic, scientific, chemical, radiological or

14

engineering data, or the portion of any other Record that evidences conditions at or

15

around the Mine Sites; or (2) the portion of any Record that Settling Defendants are

16

required to create or generate pursuant to this CD.

17

91.

Business Confidential Claims. Settling Defendants may assert that

18

all or part of a Record provided to Plaintiffs under this Section or Section XX (Retention

19

of Records) is business confidential to the extent permitted by and in accordance with

20

Section 104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), 40 C.F.R. § 2.203(b), and the

21

Navajo Nation Privacy Act, 2 N.N.C. §§ 83(C) & 85(A)(19). Settling Defendants shall

22

segregate and clearly identify all Records or parts thereof submitted under this CD for

23

which Settling Defendants assert business confidentiality claims. Records submitted to

24

EPA determined to be confidential by EPA will be afforded the protection specified in

25

40 C.F.R. Part 2, Subpart B. If no claim of confidentiality accompanies Records when

26

they are submitted to EPA and the Navajo Nation, or if EPA has notified Settling

27

Defendants that the Records are not confidential under the standards of Section 104(e)(7)

28

68

1

of CERCLA or 40 C.F.R. Part 2, Subpart B, the public may be given access to such

2

Records without further notice to Settling Defendants.

3

92.

If relevant to the proceeding, the Parties agree that validated

4

sampling or monitoring data generated in accordance with the SOW and reviewed and

5

approved by EPA shall be admissible as evidence, without objection, in any proceeding

6

under this CD.

7

93.

Notwithstanding any provision of this CD, Plaintiffs retain all of

8

their information-gathering and inspection authorities and rights, including enforcement

9

actions related thereto, under CERCLA, RCRA, NNCERCLA, and any other applicable

10

statutes or regulations.

11
12

XX.
94.

RETENTION OF RECORDS

Until 10 years after EPA’s Notice of Completion of Work under

13

Section XXV, Settling Defendants shall preserve and retain all non-identical copies of

14

Records (including Records in electronic form) now in their possession or control or that

15

come into their possession or control that relate in any manner to their liability under

16

CERCLA with respect to the Mine Sites, provided, however, that Settling Defendants

17

must retain, in addition, all Records that relate to the liability of any other person under

18

CERCLA with respect to the Mine Sites. Settling Defendants must also retain, and

19

instruct their contractors and agents to preserve, for the same period of time specified

20

above all non-identical copies of the last draft or final version of any Records (including

21

Records in electronic form) now in their possession or control or that come into their

22

possession or control that relate in any manner to the performance of the Work, provided,

23

however, that Settling Defendants (and their contractors and agents) must retain, in

24

addition, copies of all data generated during the performance of the Work and not

25

contained in the aforementioned Records required to be retained. Each of the above

26

Record retention requirements shall apply regardless of any corporate retention policy to

27

the contrary.

28

69

1

95.

The United States acknowledges that each SFA: (a) is subject to all

2

applicable federal record retention laws, regulations, and policies; and (b) has certified

3

that it has fully complied with any and all EPA requests for information regarding the

4

Mine Sites pursuant to Sections 104(e) and 122(e)(3)(B) of CERCLA, 42 U.S.C. §§

5

9604(e) and 9622(e)(3)(B), and Section 3007 of RCRA, 42 U.S.C. § 6927.

6

96.

At the conclusion of this Record retention period, Settling

7

Defendants shall notify the United States and the Navajo Nation at least 90 days prior to

8

the destruction of any such Records, and, upon request by the United States or the Navajo

9

Nation, and except as provided in ¶ 90 (Privileged and Protected Claims), Settling

10
11

Defendants shall deliver any such Records to EPA or NNEPA.
97.

Each Settling Defendant certifies that, to the best of its knowledge

12

and belief, after thorough inquiry, it has not altered, mutilated, discarded, destroyed, or

13

otherwise disposed of any Records (other than identical copies) relating to its potential

14

liability regarding the Mine Sites since notification of potential liability by the United

15

States or the Navajo Nation and that it has fully complied with any and all EPA and

16

NNEPA requests for information regarding the Mine Sites pursuant to Sections 104(e)

17

and 122(e)(3)(B) of CERCLA, 42 U.S.C. §§ 9604(e) and 9622(e)(3)(B), and

18

Section 3007 of RCRA, 42 U.S.C. § 6927, and NNCERCLA §§ 2301 and 2504(B)(3)(b).

19

98.

Until 10 years after EPA’s Notice of Completion of Work under

20

Section XXV, NNEPA and NNDOJ shall preserve and retain all non-identical copies of

21

Records (including Records in electronic form) now in their possession or control or that

22

come into their possession or control that relate in any manner to the performance of the

23

Work and, in addition, must retain copies of all data generated during the performance of

24

the Work that are not already contained in those Records. At the conclusion of this

25

Record retention period, NNEPA and NNDOJ shall each notify the United States at least

26

90 days prior to the destruction of any such Records and, upon request by the United

27

States and except as provided in ¶ 90 (Privileged and Protected Claims), shall deliver any

28

such Records to EPA.

70

1
2

XXI. NOTICES AND SUBMISSIONS
99.

All approvals, consents, deliverables, modifications, notices,

3

notifications, objections, proposals, reports, and requests specified in this CD must be in

4

writing unless otherwise specified. Whenever, under this CD, notice is required to be

5

given, or a report or other document is required to be sent, by one Party to another, it

6

must be directed to the person(s) specified below at the address(es) specified below. Any

7

Party may change the person and/or address applicable to it by providing notice of such

8

change to all Parties. All notices under this Section are effective upon receipt, unless

9

otherwise specified. Notices required to be sent to EPA, and not to the United States,

10

should not be sent to DOJ. Except as otherwise provided, notice to a Party by email (if

11

that option is provided below) or by regular mail in accordance with this Section satisfies

12

any notice requirement of the CD regarding such Party.

13

As to the United States:

EES Case Management Unit

14

U.S. Department of Justice

15

Environment and Natural Resources Division

16

P.O. Box 7611

17

Washington, D.C. 20044-7611

18

[e-mail]

19

Re: DJ # 90-11-2-10823/1

20
21

Chief

22

U.S. Department of Justice

23

Environment and Natural Resources Division

24

Environmental Defense Section

25

Washington, D.C. 20044-7611

26

Re: DJ # 90-11-6-20322

27
28

71

1
2

As to EPA:

U.S. Environmental Protection Agency, Region

3

IX

4

75 Hawthorne Street

5

San Francisco, CA 94105

6
7

Assistant Director, Superfund Division

and:

Linda Reeves

8

EPA Project Coordinator

9

U.S. Environmental Protection Agency, Region

10

IX

11

75 Hawthorne Street

12

Mail Code: SFD-6-2

13

San Francisco, CA 94105

14

[e-mail]

15

[phone]

16
17

Mark Ripperda

18

EPA Project Coordinator

19

U.S. Environmental Protection Agency, Region

20

IX

21

75 Hawthorne Street

22

Mail Code: SFD-6-2

23

San Francisco, CA 94105

24

[e-mail]

25

[phone]

26
27
28

72

1
2

with a copy to:

Director, Site Operations
Office of Legacy Management, LM-1

3

U.S. Department of Energy

4

1000 Independence Avenue, SW

5

Washington, D.C. 20585

6
7

As to the Regional Financial

Linda Ma

8

Management Officer:

Cost Recovery Specialist
U.S. Environmental Protection Agency, Region

9
10

IX

11

Mail Code: SFD-7-5

12

75 Hawthorne Street

13

San Francisco, CA 94105

14

[e-mail]

15

[phone]

16

At to EPA Cincinnati Finance

EPA Cincinnati Finance Center

17

Center:

26 W. Martin Luther King Drive

18

Cincinnati, Ohio 45268

19

[e-mail]

20
21
22
23
24
25
26
27
28

73

1
2

As to the Navajo Nation

Veronica Blackhat
Assistant Attorney General

3

Navajo Nation Dept. of Justice

4

P.O. Drawer 2010

5

Window Rock, AZ 86515

6

[e-mail]

7

928-871-6347

8
9
10
11
12
13
14
15

As to NNEPA:

Donald Benn
Executive Director, NNEPA
P.O. Box 339
Window Rock, AZ 86515
[e-mail]
926-871-7990

16
17
18
19
20
21
22
23
24

Diane Malone
Manager, Waste Regulatory and Compliance
Dept.
Navajo Nation EPA
P.O. Box 339
Window Rock, AZ 86515
[e-mail]
928-871-7993

25
26
27
28

74

1
2

As to Settling Defendants:

Stuart Brown
Project Coordinator

3

Cyprus Amax Minerals Company

4

Western Nuclear, Inc.

5

333 North Central Avenue

6

Phoenix, Arizona 85004

7
8

Cyprus Amax Minerals Company

9

Western Nuclear, Inc.

10

Attn: General Counsel

11

333 North Central Avenue

12

Phoenix, Arizona 85004

13
14

XXII. RETENTION OF JURISDICTION

15
100.

16

This Court retains jurisdiction over both the subject matter of this

17

CD and Settling Defendants for the duration of the performance of the terms and

18

provisions of this CD for the purpose of enabling any of the Parties to apply to the Court

19

at any time for such further order, direction, and relief as may be necessary or appropriate

20

for the construction or modification of this CD, or to effectuate or enforce compliance

21

with its terms, or to resolve disputes in accordance with Section XIII (Dispute

22

Resolution).
XXIII.

23
101.

24
25
26
27
28

APPENDICES

The following appendices are attached to and incorporated into this

CD:
“Appendix A” is the list of 94 Mine Sites where response actions are required
under this Consent Decree.
“Appendix B” is the list of 23 abandoned uranium mines on Navajo Nation lands

75

1

at which Vanadium Corporation of America was historically involved in mining activities

2

and which are included in the Tronox Incorporated bankruptcy proceeding referenced in

3

Paragraph F. No work is required at those mines under this Consent Decree.

4

“Appendix C” is the SOW.

5

“Appendix D” is the Form of Financial Assurance.

6

“Appendix E” is the Navajo Informal Dispute Resolution Procedure.

7

“Appendix F” is the Trust Agreement.

8
9

XXIV.
102.

MODIFICATION

Except as provided in ¶ 14 (Modification of SOW or Related

10

Deliverables), material modifications to this CD, including the SOW, shall be in writing,

11

signed by the United States and Settling Defendants and, in the case of the CD only, the

12

Navajo Nation, and effective upon approval by the Court. Except as provided in ¶ 14,

13

non-material modifications to this CD, including the SOW and changes to Appendices A

14

and B, shall be in writing and shall be effective when signed by duly authorized

15

representatives of the United States and Settling Defendants, and in the case of the CD

16

and Appendices A and B only, the Navajo Nation. Before providing its approval to any

17

modification to the SOW, the United States will provide the Navajo Nation with a

18

reasonable opportunity to review and comment on the proposed modification.

19
20

103.

enforce, supervise, or approve modifications to this CD.

21
22

Nothing in this CD shall be deemed to alter the Court’s power to

XXV. NOTICE OF COMPLETION OF WORK
104.

When EPA determines, after consultation with NNEPA, and after

23

EPA’s review of the Final Report submitted pursuant to the SOW, that all Work has been

24

fully performed in accordance with this CD, with the exception of any continuing

25

obligations required by this CD, including payment of Future Response Costs and Record

26

retention, EPA will provide written notice to Settling Defendants, as a Certification of

27

Work Completion, pursuant to Paragraph 11.4 of the SOW. If EPA determines, after

28

consultation with NNEPA, that any such Work has not been completed in accordance

76

1

with this CD, EPA will notify Settling Defendants, provide a list of deficiencies, and

2

require that Settling Defendants correct such deficiencies. Settling Defendants shall

3

correct the deficiencies and submit a modified Final Report in accordance with the EPA

4

notice. Failure by Settling Defendants to correct the deficiencies as directed by EPA shall

5

be a violation of this CD.

6

XXVI.

7

105.

LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
This CD shall be lodged with the Court for at least 30 days for

8

public notice and comment in accordance with Section 122(d)(2) of CERCLA, 42 U.S.C.

9

§ 9622(d)(2), and 28 C.F.R. § 50.7. The United States reserves the right to withdraw or

10

withhold its consent if the comments regarding the CD disclose facts or considerations

11

that indicate that the CD is inappropriate, improper, or inadequate. Settling Defendants

12

consent to the entry of this CD without further notice.

13

106.

If for any reason the Court should decline to approve this CD in the

14

form presented, this agreement is voidable at the sole discretion of any Party and the

15

terms of the agreement may not be used as evidence in any litigation between the Parties.

16
17

XXVII.
107.

SIGNATORIES/SERVICE

The undersigned representative of Settling Defendants, the Assistant

18

Attorney General for the Environment and Natural Resources Division of the Department

19

of Justice, and the Attorney General for the Navajo Nation each certifies that he or she is

20

fully authorized to enter into the terms and conditions of this CD and to execute and

21

legally bind such Party to this document.

22

108.

Settling Defendants agree not to oppose entry of this CD by this

23

Court or to challenge any provision of this CD unless the United States has notified

24

Settling Defendants in writing that it no longer supports entry of the CD.

25

109.

Settling Defendants shall identify, on the attached signature page,

26

the name, address, and telephone number of an agent who is authorized to accept service

27

of process by mail on behalf of that Party with respect to all matters arising under or

28

relating to this CD. Settling Defendants agree to accept service in that manner and to

77

1

waive the formal service requirements set forth in Rule 4 of the Federal Rules of Civil

2

Procedure and any applicable local rules of this Court, including, but not limited to,

3

service of a summons. Settling Defendants need not file an answer to the complaints in

4

this action unless or until the Court expressly declines to enter this CD.

5
6

XXVIII.
110.

FINAL JUDGMENT

This CD and its appendices constitute the final, complete, and

7

exclusive agreement and understanding among the Parties regarding the settlement

8

embodied in the CD. The Parties acknowledge that there are no representations,

9

agreements, or understandings relating to the settlement other than those expressly

10
11

contained in this CD.
111.

Upon entry of this CD by the Court, this CD shall constitute a final

12

judgment between and among the United States, the Navajo Nation, and Settling

13

Defendants. The Court enters this judgment as a final judgment under Fed. R. Civ. P. 54

14

and 58.

15

Dated this 22nd day of May, 2017.

16
17
18
19
20

Douglas L. Rayes
United States District Judge

21
22
23
24
25
26
27
28

78

1
2

Signature Page for Consent Decree in United States and Navajo Nation v. Cyprus Amax
Minerals Company and Western Nuclear, Inc.

3
FOR THE UNITED STATES OF AMERICA:

4
5
6

~

7

~

U

Dated

C. Cruden
sistant Attorney General
.S. Department of Justice
Environment and Natural Resources Division
Washington, D.C. 20530
o

8
9
10
11
12
13

1-1

1-T
Katherine M. Kane
Erica H. Pencak
U.S. Department of Justice
Environment and Natural Resources Division
Environmental Enforcement Section
999 18t Street
"
Suite 370 —South Tower
Denver, CO 80202

Dated

14
15
16
17
18
19

Zo

~-

21

Dated

22
23
24

7
Dustin J. Maghamf~ ( ,/J
Sue Chen
~~
of Justice
U.S. Department
Environment and Natural Resources Division
Environmental Defense Section
P.O. Box 7611
Washington, D.C. 20044-7611

25
26
27
28

Signature Page 1

Signature Page for Consent Decree in United States and Navajo Nation v Cyprus Amax
I Minerals Company and Western Nuclear, Inc

FOR CYPRUS AMAX MINERALS COMPANY:

±1*4 n
I Dated

L. Richards McMillan, II
Senior Vice President
333 North Central Ave.

Phoenix, AZ 85004

FOR WESTERN NUCLEAR, INC.

1
I Dated

0^4.
L. Richards McMillan, II
Senior Vice President
333 North Central Ave.

Phoenix, AZ 85004

Signature Page 4

Appendix A

APPENDIX A: MINE SITES
Mine Claim
All Site IDs

Mine Name

Surface Underground AEC records of ore
Area
Area Acres
production
Acres
(rounded)
(tons)
(rounded)
12.4
0.0
1,158

1

3

Red Wash Point

2

4

Junction

2.7

0.0

18

3

6

Lookout Point Incline

1.3

0.1

506

4

9

Lookout Point

7.1

0.6

5,839

5

10

Begay No. 2

6.0

0.0

4,515

6

11

Shadyside No. 1

6.1

0.2

1,510

7

12

Williams Point

6.3

0.0

127

8

13

Salt Canyon

7.2

0.0

61

9

14

Salt Canyon

1.5

0.0

n/a

10

15

Frank's Point

4.5

0.0

25

11

16

Upper Salt Rock

1.4

0.0

96

12

19

Oak Springs Mine

9.3

0.3

1,978

13

20

Oak Springs Mine (Gravel Cap)

12.1

0.5

5,112

14

26

Hazel

8.9

0.1

36

15

27

Lone Star

7.2

0.0

200

16

28

Cottonwood Butte

2.5

0.0

250

17
18
19
20
21

50
51
54
57
60

Carson
Martin Mine and George Simpson
Rattlesnake
North Martin
Plot 1

15.8
31.7
17.7
8.2
11.7

0.0
0.7
0.1
0.0
0.1

93
4,278
478
n/a
775

22
23

61
65

McKenzie 3
Plot 4

18.6
15.7

0.0
0.0

504
522

24
25
26
27
28
29
30
31
32
33
34
35
36

69
70
71
96
104
107
116
219
223
226
246
275
282

NA-0919B
Plot 8
Black Rock Point Mines
Mesa II 1/4 Mine
Cato No. 2
NA-0316
NA-0919A
CBW-MC Mine
Rock Door No. 1
Monument No. 3
Monument No. 1
Kinusta Mesa
Rattlesnake No. 1

6.5
5.0
23.5
2.2
6.5
1.6
6.9
3.0
5.4
2.5
9.2
10.0
20.5

0.0
0.0
0.0
0.3
0.0
0.0
0.0
0.0
0.0
0.0
0.6
0.0
0.1

n/a
280
2,025
725
52
n/a
n/a
388
25
6
4,164
788
2,910

Group Name

Latitude (N)

Longitude (W)

Priority
Mine

Proximate
mines

Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Red Rock / Shadyside
(King Tutt Mesa)
Rattlesnake (Tse Tah)
Red Rock / Shadyside
(King Tutt Mesa)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Lukachukai (Cove)
Lukachukai (Cove)
Lukachukai (Cove)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Monument Valley
Monument Valley
Monument Valley
Cove Mesa
Rattlesnake (Tse Tah)

36.7096741229

-109.0183581790

36.7140165274

-109.0151600320

36.7185226003

-109.0373518480

36.7196605374

-109.0360779100

36.7186736761

-109.0262475870

36.7189364101

-109.0319598080

36.7260938656

-109.0379772050

36.7243502139

-109.0220558960

36.7242126332

-109.0176570660

36.7340267535

-109.0396605010

36.7342525428

-109.0379628840

36.7462941285

-109.0512918380

36.7477338157

-109.0504533910

36.7668208465

-109.0514640730

36.7685094906

-109.0440597960

36.7720560730

-109.0402158320

36.8733124264
36.8780031133
36.8770488527
36.8846103259
36.8999026375

-109.2884520340
-109.2923296290
-109.2865764750
-109.2935038660
-109.2955065200

36.9055595660
36.9011753065

-109.2941212340
-109.2877881380

yes

36.8901151230
36.8951816771
36.8960334986
36.5151713703
36.5480201387
36.5293472379
36.8928117099
36.8277039569
37.0146880063
37.0061724942
36.9478156688
36.6629305588
36.8738490465

-109.2732187350
-109.2670863480
-109.2649210150
-109.2343637110
-109.2498938690
-109.2571912820
-109.2714591170
-109.2628335060
-110.2149680890
-110.3537572920
-110.2311837890
-109.3029634580
-109.1278711480

yes

yes

yes

yes

yes

yes

yes
yes
yes

APPENDIX A: MINE SITES
Mine Claim
All Site IDs

Mine Name

Surface Underground AEC records of ore
Area
Area Acres
production
Acres
(rounded)
(tons)
(rounded)
2.4
0.1
114
6.4
49.6
495,360
13.7
42.8
295,000
6.0
0.3
344
6.6
0.0
n/a
4.4
0.0
703
7.3
0.1
735
2.9
0.0
n/a

37
38
39
40
41
42
43
44

283
321
323
415
417
422
424
440

Captain Benally No. 4A
Ruby No. 1 and 2
Ruby No. 3 and 4
Mesa IV 1/4 Mine
Mesa III, West Mine
Billy Topaha Mine
Mesa III, Northwest Mine
Oak238

45
46

448
477

John Lee Benally
Shadyside Incline

4.3
1.5

0.0
0.2

37
2,401

47

482

Oak 143, Oak 146

5.6

0.0

n/a

48

483

Tent No. 1

4.8

0.3

1,198

49

487

King Tutt Point

13.5

0.4

1,384

50

488

Carrizo No. 1

0.7

0.2

828

51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69

491
492
510
513
516
517
621
622
623
627
628
629
630
631
632
633
634
637
640

Plot 7
Tse079
Frank No. 2
Firelight No. 6
C-3
Tom Holliday
NA-0505B
Melvin Benally No. 1
Plot 2
Plot 13
Plot 9
Jimmie Bileen 1
Sandy K
Plot 10
Plot 11
NA-0917A
Plot 6
Pope 1
King Tutt 1

8.9
3.9
3.9
10.5
6.1
3.3
2.4
0.6
16.0
13.6
10.7
17.7
15.0
17.3
23.2
15.8
35.6
1.6
7.5

0.0
0.0
0.3
0.2
0.8
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.1
0.1
0.0
2.5
0.1
0.0

500
n/a
n/a
2,141
5,410
12
n/a
81
443
180
230
67
7
783
500
n/a
14,956
423
290

70
71

642
646

Shadyside No. 2
Nelson Point

3.4
5.1

0.4
0.9

2,033
15,213

72

648

NA-0410

7.4

0.0

n/a

73

649

North Star

5.6

0.1

625

74

652

Begay Incline

4.4

0.0

655

75

658

White Cap

2.8

0.0

155

76
77
78

663
664
665

AEC Plot 3
Plot 3
Plot 5

3.1
15.0
21.3

0.0
0.0
0.0

n/a
180
180

Group Name

Latitude (N)

Longitude (W)

Rattlesnake (Tse Tah)
Eastern
Eastern
Lukachukai (Cove)
Lukachukai (Cove)
Lukachukai (Cove)
Lukachukai (Cove)
Red Rock / Shadyside
(King Tutt Mesa)
Rattlesnake (Tse Tah)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Lukachukai (Cove)
Monument Valley
Monument Valley
Monument Valley
Cove Mesa
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Red Rock / Shadyside
(King Tutt Mesa)
n
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Red Rock / Shadyside
(King Tutt Mesa)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)

36.9378887865
35.5194714259
35.5078555468
36.5282303341
36.5146359700
36.5005295341
36.5195447407
36.7408518946

-109.2625607730
-108.2229776900
-108.1623549840
-109.2611541410
-109.2507121510
-109.2253065200
-109.2477979150
-109.0431157460

36.8921949904
36.7172042821

-109.4667302350
-109.0328527850

36.7145679801

-109.0338821020

36.7159672172

-109.0333993270

36.7091881856

-109.0271894650

36.7102916949

-109.0255230170

36.8940570080
36.8953084318
36.5321226646
36.9136145294
37.0448995831
37.0187777412
36.7949575508
36.8283075234
36.9051890787
36.8710128517
36.8878557510
36.8882040851
36.8891276129
36.8846551084
36.8851581276
36.8936387968
36.8992983968
36.8981095343
36.7105655454

-109.2699776990
-109.2697459050
-109.2529084440
-110.2597767890
-110.3452034140
-110.2537650250
-109.2811728780
-109.2667791150
-109.2920576660
-109.2909121370
-109.2623965460
-109.2602470280
-109.2576021150
-109.2633007350
-109.2607982270
-109.2627074580
-109.2700102000
-109.2720102000
-109.0197844490

36.7199706567
36.7157252792

-109.0286792290
-109.0346215160

36.7674467226

-109.0484169380

36.7679009316

-109.0463652380

36.7169937562

-109.0263494040

36.7649869953

-109.0515744520

36.8732280168
36.9032467957
36.9018028751

-109.2861459150
-109.2859978510
-109.2841684320

Priority
Mine

Proximate
mines

yes
yes

yes

yes

yes
yes

yes

yes
yes

yes
yes
yes

yes

yes

yes

APPENDIX A: MINE SITES
Mine Claim
All Site IDs

79
80

81

82
83
84
85
86
87
88

89

90
91

92

93
94

Mine Name

667
106
505
509
17

Climax Transfer Station
South Portal, Frank No. 1 Mine
North Portal, Frank No. 1 Mine
East Portal, Frank No. 1 Mine

18
41
184
185
186
619
620
217
218
241
521
261
708
31
32
34
35
36
37
38
39
430
431
434
497
498
501
485
659
635
636
7
478
641
643
75
76
400
402
n/a

VCA Plot 7
Eurida Mine
East Workings
Plot 16
Plot 15
Plot 14
Saytah Canyon
Monument No. 2
Taylor Reid No. 1
Upper Red Wash
Cove Mesa Mines (Cato Sells)

Cove Mesa Mines (AEC Lease Plot
7)

Begay No. 1
Hoskie Henry

VCA Plot 3

Tom Wilson
Wilbur Sells Nos. 4A and 5A

Surface Underground AEC records of ore
Area
Area Acres
production
Acres
(rounded)
(tons)
(rounded)
2.1
0.0
n/a
12.0
1.1
75,739
0.9
1.3
10.2
2.5
50.5
0.2
4,899
5.4
1.0
0.9
4.1
4.0
4.1
1.8
3.6
0.7
0.7
0.7
177.0
3.7
3.9
6.7
2.0
0.9
2.8
5.9
3.4
0.3
16.1
4.6
4.6
4.5
21.8
31.4
52.9
15.6
1.4
5.4
6.0
18.6
43.4
7.4
9.9
2.9
10.9
11.0
16.9

0.0
0.2
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.5
0.7
0.0
0.0
0.0
0.0
0.5
0.4
0.0
0.1
0.8
0.0
0.0
0.0
0.6
1.8
4.7
0.9
0.1
0.0
0.1
0.0
0.0
0.0
0.0
0.0
0.0
0.0
0.0

Group Name

Latitude (N)

Longitude (W)

Priority
Mine

Lukachukai (Cove)

36.7464944722
36.5304430903
36.5366909246
36.5331690026
36.7342224116

-108.7021510220
-109.2545655060
-109.2556406100
-109.2518936640
-109.0329830760

yes

36.7405300335
36.7389594775
36.7971736130
36.7958653999
36.7933750486
36.7940454168
36.7988154268
36.8283323960
36.8286294634
36.9412038568
36.9320710334
37.0465662777
37.0455257882
36.6530986424
36.6504486727
36.6496903779
36.6517100962
36.6522271361
36.6486555054
36.6478027234
36.6375536912
36.6393199949
36.6432843066
36.6371104611
36.6320816673
36.6315799260

-109.0414166810
-109.0396010940
-109.2847714070
-109.2802179740
-109.2822125340
-109.2749319880
-109.2760282760
-109.2662386980
-109.2607966160
-109.8886709960
-109.8848799080
-110.3486108590
-110.3467895330
-109.0494436810
-109.0454140090
-109.2706973740
-109.2690035960
-109.2782442960
-109.2811485440
-109.2763852360
-109.2774905950
-109.2704848620
-109.2698782020
-109.2709258650
-109.2691153690
-109.2728366620

36.6409865343
36.7088441355
36.7099635747
36.9003612956
36.9006159217
36.7203371685
36.7151579760
36.7189454906
36.7211785984
36.4624668786
36.4631500061
36.4640458210
36.4655119278
36.9100930000

-109.2739185830
-109.0237185240
-109.0247665470
-109.2677126980
-109.2724420060
-109.0376712070
-109.0370429500
-109.0301406620
-109.0272233350
-109.9362086400
-109.9341997080
-109.9421355300
-109.9378450640
-109.2826560000

Lukachukai (Cove)

Red Rock / Shadyside
(King Tutt Mesa)

800

Rattlesnake (Tse Tah)

886

Rattlesnake (Tse Tah)

112

Rattlesnake (Tse Tah)

773,132
7,850
760

Monument Valley
Monument Valley
Red Rock / Shadyside
(King Tutt Mesa)

2,713

Cove Mesa

39,946

Cove Mesa

3,921

Red Rock / Shadyside
(King Tutt Mesa)

978

Rattlesnake (Tse Tah)

n/a

Red Rock / Shadyside
(King Tutt Mesa)

59

Central

n/a

Rattlesnake (Tse Tah)

yes

Proximate
mines

Appendix B

APPENDIX B: MINES NOT INCLUDED IN CONSENT DECREE
Mine Claim
All Site IDs

Mine Name

Surface
Underground AEC records of ore
Area Acres Area Acres
production
(rounded)
(rounded)
(tons)
6.7
0.0
2,016

Group Name

Latitude (N)

Longitude (W)

Rattlesnake
(Tse Tah)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)
Lukachukai
(Cove)

36.9145657005

-109.2833855210

36.5060569028

-109.2333648410

36.5254382766

-109.2505831300

36.5054168059

-109.2685290700

36.4991209205

-109.2488102450

36.5303690307

-109.2315899170

36.5115957623

-109.2251049880

36.5158324968

-109.2197744960

36.5458114344

-109.2471051040

36.5111292786

-109.2142881340

36.4851261073

-109.2465594870

36.5375622854

-109.2562163360

36.4998452180

-109.2552586720

36.5106409432

-109.2337343070

36.5112353471

-109.2348778320

36.5127277275

-109.2327499040

36.5149632882

-109.2428501500

36.5152154124

-109.2448960970

36.5291881326

-109.2411543410

36.5325513018

-109.2396517150

36.5428608766

-109.2582706050

55,599

Lukachukai
(Cove)

36.5399148408

-109.2490367380

36.5380667228
36.5246411899

-109.2548895960
-109.2236001470

58,082

Lukachukai
(Cove)

36.5234840361
36.5236876881
36.5219957046
36.5195019444
36.5254231143

-109.2177078940
-109.2193060810
-109.2225169400
-109.2200127600
-109.2217313930

1

64

Block K

2

95

Mesa I 3/4 Incline

2.1

4.9

44,174

3

101

Mesa IV, West Mine

4.8

0.6

3,365

4

204

Step Mesa Mine

3.7

0.8

8,841

5

205

Black No. 2 Mine

4.7

0.5

1,879

6

287

Mesa II Pit

0.6

0.0

822

7

288

Mesa I 1/2, West Mine

1.9

0.2

n/a

8

419

Mesa I 1/2 Mine

5.9

0.7

7,555

9

421

Frank Jr. Mine

5.7

0.0

10,519

10

423

Mesa I 1/4 Mine

3.6

0.2

132

11

428

Knife Edge Mesa Mine

5.5

0.1

1,032

12

506

Mesa IV 1/2 Mine and Simpson 181

2.9

2.5

8,977

13

511

Flag No. 1 Mine

6.7

0.3

11,286

14

600

Mesa I 3/4 Mine No. 2, P150

2.3

0.4

6,423

15

601

Mesa II, Mine No. 1 & 2, P-21

12.4

32.3

274,128

16

602

Mesa II, Mine No. 1, P-150

3.9

0.9

3,825

17

603

Mesa II 1/2 Mine

2.2

5.3

38,343

18

605

Mesa III Mine

1.1

5.7

50,900

19

606

Mesa IV, Mine No. 1

9.7

1.1

7,648

20

607

Mesa IV, Mine No. 2

20.3

0.9

3,711

21

611

Mesa VI Mine

3.9

0.9

8,994

4.3

3.1
3.9
0.6
7.6
0.2
2.8
0.8
0.8

22

23

103

Mesa V Mine

508
93

Mesa I, Mine No. 11

3.2
9.3

94
654
655
656
657

Mesa I, Mine No. 13
Mesa I, Mine No. 10
Mesa I, Mine No. 12
Mesa I, Mine No. 14
Mesa I, Mine No. 15

5.4
2.8
25.4
9.0
7.4

Priority
Mine

yes

yes

Appendix C

STATEMENT OF WORK

FOR RESPONSE ACTIONS AT 94 ABANDONED URANIUM MINE SITES ON
NAVAJO NATION LANDS IN ARIZONA, NEW MEXICO AND UTAH

EPA REGION 9

TABLE OF CONTENTS

1. 

INTRODUCTION ...............................................................................................................1 

2. 

DEFINITIONS.....................................................................................................................3 

3. 

COMMUNITY INVOLVEMENT ......................................................................................3 

4. 

GENERAL REQUIREMENTS ...........................................................................................5 

5. 

REMOVAL SITE EVALUATION OR REMEDIAL INVESTIGATION .........................8 

6. 

BASELINE HUMAN HEALTH RISK ASSESSMENT AND ECOLOGICAL RISK
ASSESSMENT ..................................................................................................................10 

7. 

INTERIM ACTIONS.........................................................................................................11 

8. 

ENGINEERING EVALUATION / COST ANALYSIS OR FEASIBILITY STUDY .....12 

9. 

REMOVAL DESIGN OR REMEDIAL DESIGN ............................................................13 

10. 

REMOVAL ACTION OR REMEDIAL ACTION ...........................................................17 

11. 

OPERATION AND MAINTENANCE AND POST REMOVAL SITE CONTROL ......21 

12. 

REPORTING .....................................................................................................................23 

13. 

DELIVERABLES ..............................................................................................................24 

14. 

SITE MANAGEMENT PLAN ..........................................................................................30 

15. 

COMPONENTS OF WORK .............................................................................................32 

16. 

NNEPA PARTICIPATION ...............................................................................................33 

17. 

REFERENCES ..................................................................................................................33 

i

1.

INTRODUCTION

1.1

Purpose of the SOW. This Statement of Work (“SOW”) sets forth the procedures and
requirements for implementing the Work as defined in Section IV (Definitions) of the
Consent Decree (“CD”) at 94 abandoned uranium Mine Sites, including one transfer
station, in Arizona, New Mexico and Utah located on Navajo Nation lands, and listed in
Appendix A to the CD (“Mine Sites”).

1.2

Description of the Mine Sites. Appendix A to the CD includes the U.S. Environmental
Protection Agency (“USEPA”) mine site ID number, estimated ore production, surface
area, and latitude and longitude for each Mine Site. Settling Defendants shall provide
maps of the Mine Sites as part of the Site Management Plan (“SMP”), to be incorporated
into this SOW as provided in Section 14. Areas of each Mine Site to be addressed
pursuant to this SOW include:
(a)
(b)

Haul roads, along with their shoulders, from the Mine Site to the nearest
intersection with a paved or significant gravel road or other location defined in the
Removal Site Evaluation (“RSE”) and/or Remedial Investigation (“RI”) work
plans for the Mine Site or group of Mine Sites;

(c)

Adits, vent holes and other mine openings related to the Mine Sites; and

(d)

Groundwater and surface water, where appropriate, in the vicinity of the Mine
Sites.

(e)

1.3

All areas where hazardous substances associated with the Mine Sites have been
deposited, stored, disposed of, placed, or otherwise come to be located;

“Step Out” Areas. In addition, Settling Defendants may be required to
characterize additional "Step Out" areas in the field if USEPA determines that this
is appropriate based on exceedances of the Investigation Level at the margins of
the areas described above or if additional areas of mine waste associated with the
Mine Site or Mine Sites are identified.

The Work. For the purposes of performing the Work, Settling Defendants may group
Mine Sites together, with the approval of USEPA. The Work to be performed at each
Mine Site or group of Mine Sites includes Community Involvement and Removal Site
Evaluations (“RSEs”) and/or Remedial Investigations (“RIs”), and the following if
determined necessary by USEPA, after reasonable opportunity for review and comment
by NNEPA, based on the RSE and/or RI results:
(a)

Interim Removal Action, as required by USEPA;

(b)

Baseline Human Health Risk Assessment and Ecological Risk Assessment, as
required by USEPA;

(c)

Engineering Evaluation /Cost Analysis (“EE/CA”) or Feasibility Study (“FS”), as
required by USEPA;
1

(d)
(e)
























Removal Action or Remedial Action, as required by USEPA; and,

(f)
1.4

Removal Design or Remedial Design, as required by USEPA;

Operation and Maintenance (“O&M”) and Post Removal Site Controls (“PRSC”),
as required by USEPA.

Structure of the SOW.
Section 2 (Definitions) sets forth the definitions that apply to this SOW.
Section 3 (Community Involvement) sets forth Settling Defendants’ responsibilities for
community involvement.
Section 4 (General Requirements) sets forth general requirements that apply to the Work.
Section 5 (Removal Site Evaluation or Remedial Investigation) sets forth the process and
requirements for preparing the RSE or RI, which includes gamma scanning and
background study, and characterization of the lateral and vertical extent of contamination.
Section 6 (Interim Actions) sets forth requirements for Interim Removal Actions that may
be required to protect human health and the environment, such as closing adits, vent holes
or other mine openings, and installing fencing or warning signs around mine hazards.
Section 7 (Baseline Human Health Risk Assessment and Ecological Risk Assessment)
sets forth the criteria for characterizing the health risk to humans and ecological
receptors.
Section 8 (Engineering Evaluation / Cost Analysis (“EE/CA”) or Feasibility Study)
specifies the process and requirements for preparing the EE/CA or FS and development,
screening and detailed analysis of alternatives.
Section 9 (Removal or Remedial Design) sets forth the process for developing the RD,
which includes the submission of specified primary deliverables.
Section 10 (Removal or Remedial Action) sets forth requirements regarding the
completion of the RA, including primary deliverables related to completion of the RA.
Section 11 (O&M and PRSC) sets forth Settling Defendants’ responsibilities for
conducting O&M and PRSC.
Section 12 (Reporting) sets forth Settling Defendants’ reporting obligations.
Section 13 (Deliverables) describes the content of the supporting deliverables and the
general requirements regarding Settling Defendants’ submission of, and USEPA’s review
of, approval of, comment on, and/or modification of, deliverables.
Section 14 (Site Management Plan) sets forth the requirements for creating and
implementing the SMP which includes a schedule of all Components of Work, interim
tasks for each Component of Work, and a budget of estimated costs.
Section 15 (Components of Work) sets forth the Deadlines subject to stipulated penalties.
Section 16 (NNEPA Participation) describes NNEPA’s participation in USEPA’s
approvals, disapprovals, and certifications under this SOW.
Section 17 (References) provides a list of references, including URLs.

2

2.

DEFINITIONS

2.1

The terms used in this SOW that are defined in CERCLA, in regulations promulgated
under CERCLA, or in the CD, have the meanings assigned to them in CERCLA, in such
regulations, or in the CD, except that the term “Paragraph” or “¶” means a paragraph of
the SOW, and the term “Section” means a section of the SOW, unless otherwise stated. In
the event of any conflict between this SOW and the CD, the CD shall control.

2.2

“Components of Work” shall means the work products specified in Section 15.

2.3

“Deadlines” shall mean the dates for deliverables established under the operable version
of the SMP (i.e., the most recent version) for the calendar year (“CY”) in which that
version of the SMP was approved by EPA and the ensuing two calendar years (CY+1,
and CY+2). Deadlines are subject to stipulated penalties in accordance with Section XIV
(Stipulated Penalties) of the CD.

2.4

“Parties” shall mean the United States, the Navajo Nation, and Settling Defendants.
“Party” shall mean any one of these Parties, as the context requires.

2.5

“Performance Standards” or “PS” shall mean the cleanup levels and other measures of
achievement of response action objectives, as set forth by EPA in one or more action
memoranda or one or more records of decision issued in accordance with the SOW, the
NCP, and CERCLA.

2.6

“Schedule” shall mean a timetable or plan that indicates the time and sequence of events.

2.7

“Settling Defendants” shall mean Cyprus Amax Minerals Company and Western
Nuclear, Inc.

2.8

“Site Management Plan” or “SMP” shall mean a planning document prepared under
Section 14 that contains a Schedule. The SMP will be used as a management tool in
planning, reviewing, and setting priorities for all response activities at the Mine Sites.
Deadlines for deliverables developed under the terms of this SOW will be listed in the
SMP and are subject to Stipulated Penalties.
3.

3.1

COMMUNITY INVOLVEMENT

Community Involvement (“CI”) Responsibilities
(a)

USEPA CI Responsibilities. USEPA, after reasonable opportunity for review
and comment by NNEPA, may develop geographic Community Involvement
Plans (CIPs) for the Mine Sites. As directed by USEPA, Settling Defendants shall
provide information supporting USEPA’s CIPs and shall participate in the
preparation of such information for dissemination to the public and in public
meetings which may be held or sponsored by USEPA to explain activities at or
concerning the Mine Sites. USEPA shall update any CIPs as necessary.

3

(b)

Settling Defendants CI Participation. If requested by USEPA, Settling
Defendants shall participate in community involvement activities, including (1)
the preparation of information regarding the Work for dissemination to the public,
with consideration given to including mass media and/or Internet notification, and
(2) public meetings that may be held or sponsored by USEPA to explain activities
at or relating to the Mine Sites. Settling Defendants’ support of USEPA’s
community involvement activities may include providing online access to initial
submissions and updates of deliverables to (1) any Community Advisory Groups,
(2) any Technical Assistance Grant recipients and their advisors, and (3) other
entities to provide them with a reasonable opportunity for review and comment.
USEPA may describe in its CIPs Settling Defendants’ responsibilities for
community involvement activities. All community involvement activities
conducted by Settling Defendants at USEPA’s request are subject to USEPA’s
and NNEPA’s oversight. Upon USEPA’s request, Settling Defendants shall
establish a community information repository at or near the Mine Sites to house
one copy of the administrative record.

(c)

Settling Defendants’ CI Coordinator. If requested by USEPA, Settling
Defendants shall, within 15 days of the Effective Date of the CD, designate and
notify USEPA of Settling Defendants’ Community Involvement Coordinator
(“Settling Defendants’ CI Coordinator”). Settling Defendants may hire a
contractor for this purpose. Settling Defendants’ notice must include the name,
title, and qualifications of the Settling Defendants’ CI Coordinator. Settling
Defendants’ CI Coordinator is responsible for providing support regarding
USEPA’s community involvement activities, including coordinating with
USEPA’s CI Coordinator regarding responses to the public’s inquiries about the
Mine Sites.

(d)

Settling Defendants’ Responsibilities for Technical Assistance. If USEPA
requests, Settling Defendants shall arrange for a qualified community group(s) to
receive the services of a technical advisor(s) who can: (i) help group members
understand Mine Site cleanup issues (specifically, to interpret and comment on
Site-related documents developed under this SOW); and (ii) share this
information with others in the community. The technical advisor(s) will be
independent from the Settling Defendants. Settling Defendants’ Technical
Assistance Plan (TAP) assistance will end when USEPA issues a Notification of
Completion of RA Construction under ¶ 10.6. Settling Defendants shall
implement this requirement under a TAP.

(e)

Settling Defendants’ Outreach. Settling Defendants may conduct outreach
activities at Navajo Chapters and applicable Navajo Nation departments for the
following purposes: to obtain access to perform the Work; to provide notification
of planned field work; to coordinate cultural resource and biological surveys; and
to respond to inquiries from the Navajo Nation. Settling Defendants will inform
USEPA and NNEPA of planned outreach activities and coordinate as needed.

4

4.

GENERAL REQUIREMENTS

4.1

Grouping of Mine Sites. Many of the Mine Sites are relatively small and located
adjacent to or in close proximity to each other. Further, waste rock and other materials
from nearby mines may have been consolidated as part of earlier reclamation work.
Settling Defendants may group Mine Sites together for purposes of performing the Work,
with the approval of USEPA. USEPA may also group Mine Sites together when selecting
response actions, after reasonable opportunity for review and comment by NNEPA.

4.2

Priority Media. Priority media to be addressed at each Mine Site include, where
appropriate, soils, sediments, dust, groundwater and surface water, which present the
greatest potential risk to human health and the environment.

4.3

Contaminants of Potential Concern (“COPC”). COPCs include, but are not limited to,
the following:
(a)

Soil and Sediment. COPCs for soil and sediment include all or some of the
following analytes related to historic mining, depending upon site conditions:
radium 226, total uranium, thorium, and the stable metals arsenic, molybdenum,
selenium, mercury, vanadium, PCBs, total petroleum hydrocarbons and
explosives, including perchlorate.

(b)

Well Water and Surface Water. COPCs for well water and surface water include
all or some of the following analytes, depending upon site conditions: Radium
226, Radium 228, gross alpha, and the following metals: antimony, arsenic,
barium, beryllium, cadmium, chromium, cobalt, copper, lead, mercury,
molybdenum, nickel, nitrate, selenium, silver, thallium, isotopic uranium,
vanadium and zinc.

4.4

Notice of Fieldwork and Sampling. Settling Defendants shall provide a 2-week notice
to USEPA and NNEPA of all field work and sampling activities, including soil, sediment
and groundwater sampling and scanning.

4.5

Mine Site Access. In addition to the requirements in Section VIII (Property
Requirements) of the CD, Settling Defendants shall obtain access before Work
commences at any of the Mine Sites. Unless otherwise directed by USEPA, Settling
Defendants shall obtain access in accordance with the following requirements. If access
cannot be reasonably attained pursuant to Paragraph 19 of the CD, Settling Defendants
shall so notify USEPA and NNEPA.
(a)

Trust or Fee Land.
(1)

Homesite Lease Holders. Settling Defendants shall obtain a signed access
agreement from any homesite lease holder for work within their homesite
lease.

(2)

Resident Without Homesite Lease. If there is a home without a homesite
lease, Settling Defendants shall notify USEPA and NNEPA and proceed
5

as instructed by USEPA, after reasonable opportunity for review and
comment by NNEPA.
(3)

(4)

(b)

Grazing Permit Holders. Settling Defendants shall obtain a signed access
agreement from any grazing permit holders for work within their grazing
permit area.
Commercial, Institutional or Other Entities. Settling Defendants shall
obtain a signed access agreement from commercial or institutional entities
(e.g., schools, businesses, chapter houses, churches) with rights to the
land, based on instructions from USEPA and NNEPA, as appropriate.

Allotted land
(1)

Allottees. Settling Defendants shall obtain signed access agreements from
allottees on allotted land for investigative work, consistent with the
process agreed to by USEPA, NNEPA, NNDOJ, and BIA, and described
in a March 2, 2016 letter from USEPA Region 9 to the Regional BIA
Director. Settling Defendants shall await instructions from USEPA, after
reasonable opportunity for review and comment by NNEPA about the
process for obtaining access from allottees for all other work.

(2)

Residents Who Are Not Allottees. If there is a home without a homesite
lease, Settling Defendants shall notify USEPA and NNEPA and proceed
as instructed by USEPA, after reasonable opportunity for review and
comment by NNEPA.

(3)

Grazing Permit Holders. Settling Defendants shall obtain a signed access
agreement from any grazing permit holders for work within their grazing
permit area.

(4)

Commercial, Institutional or Other Entities. Settling Defendants shall
obtain a signed access agreement from commercial or institutional entities
(e.g., schools, businesses, chapter houses, churches) with rights to the
land, based on instructions from USEPA and NNEPA, as appropriate.

4.6

Split Samples. Upon request from USEPA or NNEPA, Settling Defendants shall provide
10% split samples to be analyzed by USEPA's or NNEPA’s laboratory for corroboration
analysis.

4.7

Cultural Resources Surveys.
(a)

As part of the RSEs and RIs, Settling Defendants shall conduct a Cultural
Resources Survey at each Mine Site or group of Mine Sites according to the
guidelines of the Navajo Nation Historic Preservation Department (NNHPD) and
Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f. The
Cultural Resources Survey Report may address Mine Sites individually or in

6

groups. Unless required for completion of the Cultural Resources Survey, no
intrusive work shall be performed at a Mine Site until so directed by USEPA.
(b)

(c)

4.8

Each Cultural Resources Survey shall include (1) a Cultural Resources Inventory,
(2) consultation with Chapter Houses, landowners, residents, and other applicable
stakeholders, and (3) a pedestrian survey resulting in full coverage of the areas
surveyed (to the extent practicable). Cultural sites (prehistoric or historic and
newly discovered or previously recorded) will be recorded in their entirety,
including the coordinates of the boundaries (i.e., GPS). Boundaries of applicable
findings will be marked in the field with wooden stakes and flagging around the
boundaries. A scaled Mine Site map shall be created showing features, artifact
concentrations, diagnostic artifacts, and topographic features. In-field artifact
analysis will be conducted and photographs will be taken.
Upon the completion of Cultural Resources Surveys, USEPA will determine
whether cultural resources are present and will be affected, and will provide
NNHPD with 30 days to respond to USEPA’s determination. If NNHPD
disagrees with EPA’s finding, or if USEPA determines that the work may
adversely impact cultural resources, then Settling Defendants shall not proceed
with invasive work until notice-to-proceed is received from USEPA.

Biological Surveys.
(a)

The approach for the biological survey at each site or group of sites will depend
on the potential species present and layout of the Mine Site or group of Mine
Sites. Settling Defendants shall obtain information from the Navajo Nation
Department of Fish and Wildlife (NNDFW) and United States Fish and Wildlife
Service (USFWS) about potential species present at the Mine Sites, and the need
for and scope of the biological (vegetation and wildlife) survey. Data requests for
species of concern shall be submitted to the NNFWS and for federal threatened
and endangered (T&E) species and critical habitat to the USFWS.

(b)

If directed by EPA, Settling Defendants shall conduct the biological survey for
vegetation or wildlife species-of-concern according to the NNDFW guidelines
and the Endangered Species Act (ESA), including the procedures set forth in the
Biological Resource Land Use Clearance Policies and Procedures (RCP), RCS44-08 (NNDFW, 2008), the Species Accounts document (NNHP, 2008a, 2008b),
and the USFWS survey protocols and recommendations. These documents
present guidelines for approval and submittal processes as well as species-specific
information regarding distribution, life histories, habitat, and survey methods to
assist with survey and project planning. The biological survey shall be performed
by experienced professionals, with guidance from the RCP, Species Accounts
document, and NNDFW and USFWS personnel.

(c)

Settling Defendants shall not proceed with any intrusive work at a Mine Site until
USEPA so directs.

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5.

REMOVAL SITE EVALUATION OR REMEDIAL INVESTIGATION

5.1

RSE or RI. USEPA will determine, after reasonable opportunity for review and
comment by NNEPA, whether Settling Defendants shall conduct an RSE, RI, or RSE and
RI at each Mine Site or group of Mine Sites.

5.2

RSE or RI Work Plan. For every Mine Site or group of Mine Sites selected by USEPA
for an RSE and/or RI, Settling Defendants shall develop and submit to USEPA for review
and approval or approval with modification RSE and RI Work Plans. The RSE or RI
Work Plan shall be in substantially the form of the Ruby Mines Removal Site Evaluation
Work Plan (2015). Settling Defendants may subdivide the RSE and RI Work Plans into
separate Work Plans for each phase of the RSE or RI. The RSE and RI Work Plans shall
include the following, as defined in Section 13.6:
(a)
(b)

Quality Assurance Plan

(c)

Field Sampling Plan

(d)

Emergency Report Plan

(e)
5.3

Data Management Plan

Health and Safety Plan

RSE or RI Content. Settling Defendants shall include the following in the RSE and RI:
(a)

Site Mapping. Settling Defendants shall perform, digitize and georeference for
import into GIS Mine Site features and physical attributes based on field surveys
and desktop studies at each Mine Site or group of Mine Sites, to include the
following:
(1)

Location and description of buildings or structures, fences, roads, and
other important information;

(2)

Topography, soil cover (rock, soil, sediment), and drainage patterns.
Settling Defendants shall supplement physical Mine Site surveys with
desktop studies, consisting of review of available historical information,
aerial photographs, previous studies, and other readily available
information;

(3)

Historical aerial photographs with a Land Use/Land Cover analysis;

(4)

Mapping of the location and physical condition of wells and surface water
identified within a one-mile radius of each Mine Site or group of Mine
Sites, and additional data that are readily available concerning wells and
surface water in the vicinity of each Mine Site or group of Mine Sites
(e.g., Agency databases and permit records); and,

8

(5)

Any other available information relevant to the assessment of the Mine
Site.

(b)

Gamma scanning. Settling Defendants shall conduct a gamma scan of the
potentially impacted areas described in ¶ 1.2 at each Mine Site or group of Mine
Sites. The gamma scanning shall be conducted consistent with MARSSIM or as
otherwise approved by USEPA. The gamma scanning shall include: a gamma
transect scan designed with an appropriate step out to determine the lateral limits
of contamination, a background study, and statistical summaries of the field and
analytical results.

(c)

Characterization of Surface Soils, Subsurface Soils and Sediments.
(1)

(2)

(d)

Settling Defendants shall characterize the lateral and vertical extent of
contamination in soils and sediments based on Ra-226 concentrations and
shall include surface and subsurface sampling at appropriate locations and
intervals. The depth shall be sufficient to confirm the absence of
contamination or until bedrock is reached, as determined by a field gamma
meter and confirmatory soil sampling. Additional gamma scanning shall
be conducted as necessary to address any gamma scanning data gaps.
Settling Defendants shall sample and analyze soils and sediment at each
Mine Site or group of Mine Sites, for the COPCs listed in Section 4.3
(COPCs), or as otherwise directed by USEPA. Unless otherwise directed
by USEPA, Settling Defendants shall sample for the following COPCs in
a subset of samples from locations where there is indication of a possible
release of these compounds: PCBs, total petroleum hydrocarbons and
explosives, including perchlorate.

Characterization of Groundwater and Surface Water. Settling Defendants
shall perform the following sampling activities:
(1)

Groundwater. Settling Defendants shall sample and analyze groundwater
from wells identified for each Mine Site or group of Mine Sites, except for
the Proximate Mines, or report the sampling results from another agency if
they exist, for the COPCs listed in ¶ 4.3, or as otherwise directed by
USEPA after reasonable opportunity for review and comment by NNEPA.
In addition, Settling Defendants shall analyze well water and surface water
from selected locations for total dissolved solids (TDS), anions (carbonate,
bicarbonate, chloride, and sulfate), cations (sodium and calcium), pH,
conductivity, turbidity, temperature, salinity, and oxidation potential. This
task does not include sampling any wells that cannot be opened or are
obstructed.

(2)

Settling Defendants shall also sample and analyze surface water for each
Mine Site or group of Mine Sites, except for the Proximate Mines, or
report the sampling results from another agency if they exist, for the

9

COPCs listed in ¶ 4.3, or as otherwise directed by USEPA after reasonable
opportunity for review and comment by NNEPA. Settling Defendants
shall describe in field notes the type of surface water feature sampled (e.g.,
ponds, washes, and springs).
(3)

(e)

5.4

For work performed under a RSE Work Plan, if USEPA determines that
further characterization of groundwater or surface water at the Mine Site
or group of Mine Sites, except for the Proximate Mines, is necessary,
USEPA may instruct Settling Defendants to submit and implement a RI
Work Plan.

Laboratory Testing. Settling Defendants shall use a USEPA-approved
laboratory for chemical analyses. Settling Defendants shall ensure that the
selected laboratory provides a laboratory quality assurance plan (LQAP) that
meets the requirements of this SOW and is consistent with the Quality Assurance
Project Plan (QAPP) required under ¶ 13.6(e). Settling Defendants shall include
the LQAP as an attachment to the QAPP.

RSE and RI Reports. Settling Defendants shall submit RSE and RI Reports to USEPA
for review and approval or approval with modification as described in ¶ 13.5 of this
SOW. The RSE and RI Report shall include the following:
(a)

A summary of the results of the RSE and RI activities for each Mine Site or group
of Mine Sites.

(b)

Field and validated laboratory data collected, including gamma scan results,
laboratory reports, data validation results, summary tables, graphs and maps
showing the results.

(c)

An identification of the vertical and lateral extent of soil contamination, as
defined by USEPA.

(d)

Conclusions as to whether a mine site is impacting surface water and
groundwater, except for the Proximate Mines, and conclusions as to whether there
are other exposure pathways that might require further investigation (e.g., crop
uptake).

6.

BASELINE HUMAN HEALTH RISK ASSESSMENT AND ECOLOGICAL RISK
ASSESSMENT

6.1

Baseline Human Health Risk Assessment and Ecological Risk Assessment.
(a)

Settling Defendants shall submit for USEPA review and approval or approval
with modification a Baseline Human Health Risk Assessment and Ecological Risk
Assessment report (“Risk Assessments”). If approved by USEPA, the Risk
Assessment can be incorporated into the RSE, RI, EE/CA or FS for a Mine Site or
group of Mine Sites.

10

(b)

USEPA, after reasonable opportunity for review and comment by NNEPA, will
determine the scope of the Risk Assessments for each Mine Site or group of Mine
Sites. Unless otherwise directed by USEPA, the Risk Assessment will be
conducted in accordance with applicable USEPA guidance, including but not
limited to: “Interim Final Risk Assessment Guidance for Superfund, Volume I Human Health Evaluation Manual (Part A),” (RAGS, EPA-540-1-89-002,
OSWER Directive 9285.7-01A, December 1989); “Interim Final Risk Assessment
Guidance for Superfund, Volume I - Human Health Evaluation Manual (Part D,
Standardized Planning, Reporting, and Review of Superfund Risk Assessments),”
(RAGS, EPA 540-R-97-033, OSWER Directive 9285.7-01D, January 1998);
“Ecological Risk Assessment Guidance for Superfund: Process for Designing and
Conducting Ecological Risk Assessments” (ERAGS, EPA-540-R-97-006,
OSWER Directive 9285.7-25, June 1997) or subsequently issued guidance.

(c)

The Risk Assessments shall consider exposure scenarios representative of Navajo
traditional uses of the land, including consumption of locally grazed livestock,
and shall identify the Performance Standards as defined in Section IV
(Definitions) of the CD.
7.

INTERIM ACTIONS

7.1

Interim Actions. At the direction of USEPA, after reasonable opportunity for review and
comment by NNEPA, Settling Defendants shall conduct Interim Work or Interim
Removal Actions.

7.2

Interim Work Examples
(a)

Signage. USEPA will provide instruction to Settling Defendants about the
location of signs to be installed at the Mine Sites. This instruction will be based
on specific Mine Site characteristics and coordination with NNEPA, Navajo
chapter(s) and local residents. This instruction may require that Settling
Defendants install bilingual (English and Navajo) signs on each cardinal direction
at each Mine Site. Signs may be placed around a group of Mine Sites that are
relatively small in size and adjacent to each other. The need for and placement of
signs may be modified after the Removal Site Evaluations or Remedial
Investigations are completed. Signs need USEPA written approval in the form of
an email communication.

(b)

Fencing. Settling Defendants shall assess whether fencing needs to be placed
around adits, vent holes and other mine openings at each Mine Site. If required by
USEPA, after reasonable opportunity for review and comment by NNEPA,
Settling Defendants shall install fencing. Fencing needs USEPA written approval
in the form of an email communication.

(c)

Closure of Adits, Vent Holes and Other Mine Openings. If required by USEPA,
Settling Defendants shall properly close adits, vent holes and other mine openings
that could pose a physical safety hazard as soon as reasonably possible.

11

(d)

Other Interim Removal Actions. At the direction of USEPA, Settling Defendants
shall conduct any other Interim Removal Actions necessary to protect public
health and the environment, including addressing mine waste that poses a risk to
residents near the Mine Site.

7.3

Interim Removal Action Work Plan. Settling Defendants shall develop and submit to
USEPA for review and approval or approval with modification Interim Removal Action
Work Plans pursuant to the Schedule in the SMP.

7.4

Interim Removal Action Completion Report. Settling Defendants shall submit an
Interim Removal Action Completion Report for USEPA review and approval or approval
with modification, that contains the following:
(1)
(2)

8.

Descriptions of the work conducted, maps of the areas affected, and
drawings that provide as-built details; and,
Description of any ongoing maintenance or management required for the
Interim Removal Actions, and proposed post-removal site controls
consistent with Section 300.415(1) of the NCP and OSWER Directive No.
9360.2- 02.

ENGINEERING EVALUATION / COST ANALYSIS OR FEASIBILITY STUDY

8.1

EE/CA or Feasibility Study (“FS”). USEPA will determine, after reasonable
opportunity for review and comment by NNEPA, whether Settling Defendants shall
conduct an EE/CA or a Feasibility Study at each Mine Site or group of Mine Sites.

8.2

EE/CA or FS Work Plan. Settling Defendants shall submit an EE/CA and FS Work
Plans for USEPA approval or approval with modification, pursuant to the Schedules in
the SMP. The Work Plan must include a proposed outline of the EE/CA or FS, including
the Performance Standards, and a description of proposed alternatives for analysis.

8.3

Development and Screening of Alternatives. Settling Defendants shall develop an
appropriate range of waste management options and shall evaluate these options during
the development and screening of alternatives. The alternatives shall include options for
managing waste both on and off Navajo Nation lands. Settling Defendants shall provide
USEPA, with a copy to NNEPA, with a proposed description of Removal Action
Objectives or Remedial Action Objectives and a proposed description of alternatives in
the EE/CA or FS Work Plan. Settling Defendants shall include proposals for Engineering
Controls as well as for Institutional Controls. Settling Defendants shall screen the
comprehensive list of possible alternatives in the Work Plan and provide a list of
alternatives for a detailed analysis in the EE/CA or FS.
(a)

Detailed Analysis of Alternatives. Settling Defendants shall conduct the EE/CA
or FS in accordance with the provisions in CERCLA, the NCP, and USEPA
guidance, including but not limited to the Guidance on Conducting Non-TimeCritical Removal Actions under CERCLA, OSWER (Aug. 1993), EPA 540-R-93057, Guidance for Conducting Remedial Investigations and Feasibility Studies,
12

OSWER 9355.3-01, EPA/540/G-89/004 (Oct. 1988), and guidance referenced
therein, and guidance referenced in this SOW, as may be amended or modified by
USEPA. The EE/CA or FS shall identify the objectives of the planned removal
action, propose alternatives that may be used to achieve these objectives, and
analyze those alternatives for cost, effectiveness, and ability to be implemented.
(b)

Alternatives Analysis for Engineering and Institutional Controls and
Screening. The Alternatives Analysis for Engineering and Institutional Controls
and Screening shall (i) state the objectives (i.e., what will be accomplished) for
the Engineering and Institutional Controls; (ii) determine the specific types of
Engineering and Institutional Controls that can be used to meet the removal action
objectives; (iii) investigate when the Engineering and Institutional Controls need
to be implemented and/or secured and how long they must be in place; and, (iv)
research, discuss, and document any agreement with the proper entities (e.g., the
Navajo Nation, Navajo Chapters, Navajo individuals who have an interest in the
Mine Site as described in Section 4.5, state, conservation organizations, Settling
Defendants) on exactly who will be responsible for securing, maintaining, and
enforcing the Engineering and Institutional Controls. Settling Defendants shall be
responsible for monitoring and ensuring implementation of all Institutional
Controls.

8.4

EE/CA or FS Report. Settling Defendants shall prepare an EE/CA or FS report for
USEPA review and approval or approval with modification.

8.5

Action Memo or ROD. After an EE/CA or RI/FS is complete, USEPA may issue an
Action Memo or proposed plan and ROD following public comment. The Action Memo
or ROD will contain Performance Standards and identify response actions required to be
performed under the CD.
9.

REMOVAL DESIGN OR REMEDIAL DESIGN

9.1

Removal or Remedial Design. USEPA will determine, after reasonable opportunity for
review and comment by NNEPA, whether Settling Defendants shall conduct a Removal
Design or Remedial Design for each Mine Site or group of Mine Sites. USEPA’s
determination will be documented in an Action Memo or ROD.

9.2

Removal Design or Remedial Design Work Plan. After USEPA executes the ROD or
Action Memo, Settling Defendants shall submit a Removal Design or a Remedial Design
(RD) Work Plan (RDWP) for USEPA approval or approval with modification pursuant to
the Schedule in the SMP. The RDWP must include:
(a)

Plans for implementing all RD activities identified in this SOW, in the RDWP, or
required by USEPA to be conducted to develop the RD;

(b)

A description of the overall management strategy for performing the RD,
including a proposal for phasing of design and construction, if applicable;

13

(c)

A description of the proposed general approach to contracting, construction,
operation, maintenance, and monitoring of the Remedial Action or Removal
Action (RA) as necessary to implement the Work;

(d)

A description of the responsibility and authority of all organizations and key
personnel involved with the development of the RD;

(e)

Descriptions of any areas requiring clarification and/or anticipated problems (e.g.,
data gaps);

(f)

Description of any proposed pre-design investigation;

(g)

Description of any proposed treatability study;

(h)

Descriptions of any applicable permitting requirements and other regulatory
requirements;

(i)

Description of plans for obtaining Access in connection with the Work, such as
property acquisition, property leases, and/or easements pursuant to the obligation
under Section VIII (Property Requirements) of the CD; and,

(j)

The following supporting deliverables described in ¶ 13.6 (Supporting
Deliverables): Health and Safety Plan; Emergency Response Plan; and, if a PreDesign Investigation is included in the work, a Field Sampling Plan and Quality
Assurance Project Plan.

9.3

Design Meetings. Settling Defendants shall meet regularly with USEPA to discuss
design issues as necessary, directed or determined by USEPA. These meetings will
include NNEPA whenever feasible.

9.4

Pre-Design Investigation. If required by USEPA, after reasonable opportunity for
review and comment by NNEPA, Settling Defendants shall conduct a Pre-Design
Investigation for any of the Mine Sites or group of Mine Sites. The purpose of the PreDesign Investigation (PDI) is to address data gaps by conducting additional field
investigations.
(a)

PDI Work Plan. Settling Defendants shall submit a PDI Work Plan (PDIWP) for
USEPA approval or approval with modification. The PDIWP must include:
(1)

An evaluation and summary of existing data and description of data gaps;

(2)

A sampling plan including media to be sampled, contaminants or
parameters for which sampling will be conducted, location (areal extent
and depths), and number of samples; and

(3)

Cross references to quality assurance/quality control (QA/QC)
requirements set forth in the Quality Assurance Project Plan (QAPP) as
described in ¶ 13.6(e).

14

(b)

PDI Evaluation Report. Following the PDI, Settling Defendants shall submit a
PDI Evaluation Report. This report must include:
(1)
(2)

Summary of validated data (i.e., tables and graphics);

(4)

Data validation reports and laboratory data reports;

(5)

Narrative interpretation of data and results;

(6)

Results of statistical and modeling analyses;

(7)

Photographs documenting the work conducted; and,

(8)

9.5

Summary of investigation results;

(3)

(c)

Summary of the investigations performed;

Conclusions and recommendations for RD, including design parameters
and criteria.

USEPA, after reasonable opportunity for review and comment by NNEPA, may
require Settling Defendants to supplement the PDI Evaluation Report and/or to
perform additional pre-design studies.

Treatability Study. If required by USEPA, after reasonable opportunity for review and
comment by NNEPA, Settling Defendants shall conduct a Treatability Study for any of
the Mine Sites or group of Mine Sites.
(a)

(b)

9.6

Treatability Study Work Plan. Settling Defendants shall submit a TS Work Plan
(TSWP) for USEPA review and approval or approval with modification. Settling
Defendants shall prepare the TSWP in accordance with USEPA’s Guide for
Conducting Treatability Studies under CERCLA, Final (Oct. 1992), as
supplemented for RD by the Remedial Design/Remedial Action Handbook, EPA
540/R-95/059 (June 1995).
Treatability Study Evaluation Report. Settling Defendants shall submit a TS
Evaluation Report for USEPA review and approval or approval with
modification. USEPA may require Settling Defendants to supplement the TS
Evaluation Report and/or to perform additional treatability studies.

Preliminary (30%) RD. Settling Defendants shall submit a Preliminary (30%) RD for
USEPA’s and NNEPA’s comment. The Preliminary RD must include:
(a)

A design criteria report, as described in the Remedial Design/Remedial Action
Handbook, EPA 540/R-95/059 (June 1995);

(b)

Preliminary drawings and specifications;

(c)

Descriptions of permit requirements, if applicable;
15

(d)

Preliminary Operation and Maintenance (O&M) Plan or Post Removal Site
Control (“PRSC”) Plan and O&M Manual;

(e)

A description of how the RA will be implemented in a manner that minimizes
environmental impacts in accordance with USEPA’s Principles for Greener
Cleanups (Aug. 2009);

(f)

A description of monitoring and control measures to protect human health and the
environment, such as air monitoring and dust suppression, during the RA;

(g)

Any proposed revisions to the RA Schedule that is set forth in the SMP; and,

(h)

Updates of all supporting deliverables required to accompany the RDWP and the
following additional supporting deliverables described in ¶ 13.6 (Supporting
Deliverables): Field Sampling Plan; Quality Assurance Project Plan; Site Wide
Monitoring Plan; Construction Quality Assurance/Quality Control Plan;
Transportation and Off-Site Disposal Plan; O&M Plan or PRSC Plan; O&M
Manual; and, Institutional Controls Implementation and Assurance Plan.

9.7

Intermediate (60%) RD. Settling Defendants shall submit for USEPA’s and NNEPA’s
comment an Intermediate (60%) RD at a Mine Site or group of Mine Sites, unless
otherwise indicated by USEPA. The Intermediate RD must: (a) be a continuation and
expansion of the Preliminary RD; (b) address USEPA’s and NNEPA’s comments
regarding the Preliminary RD; and (c) include the same elements as are required for the
Preliminary (30%) RD.

9.8

Pre-Final (95%) RD. Settling Defendants shall submit the Pre-final (95%) RD for
USEPA’s and NNEPA’s comment. The Pre-final RD must be a continuation and
expansion of the previous design submittal and must address USEPA’s and NNEPA’s
comments regarding the Intermediate RD. The Pre-final RD will serve as the approved
Final (100%) RD if USEPA approves the Pre-final RD without comments. The Pre-final
RD must include:
(a)

A complete set of construction drawings and specifications that are: (1) certified
by a registered professional engineer; (2) suitable for procurement; and (3) follow
the Construction Specifications Institute’s MasterFormat 2012;

(b)

A survey and engineering drawings showing existing Mine Site features, such as
elements, property borders, easements, and Mine Site conditions;

(c)

Pre-Final versions of the same elements and deliverables as are required for the
Preliminary and Intermediate RD;

(d)

A specification for photographic documentation of the RA; and,

(e)

Updates of all supporting deliverables required to accompany the Preliminary
(30%) RD.

16

9.9

Final (100%) RD. Settling Defendants shall submit the Final (100%) RD for USEPA
approval or approval with modification. The Final RD must address USEPA’s and
NNEPA’s comments on the Pre-final RD and must include final versions of all Pre-final
RD deliverables.
10.

REMOVAL ACTION OR REMEDIAL ACTION

10.1

Removal Action or Remedial Action. USEPA, after reasonable opportunity for review
and comment by NNEPA, will determine whether Settling Defendants shall conduct a
Removal Action or a Remedial Action for each Mine Site or group of Mine Sites.

10.2

Removal Action or Remedial Action Work Plan. For each Mine Site or group of Mine
Sites for which USEPA has selected one or more response actions in an Action Memo or
ROD, Settling Defendants shall submit a RA Work Plan (RAWP) for USEPA approval or
approval with modification that includes:
(a)

A proposed RA Construction Schedule such as critical path method, Gantt chart,
or PERT;

(b)

An updated health and safety plan that covers activities during the RA; and,

(c)

If applicable, plans for satisfying permitting requirements, including obtaining
permits for off-site activity and for satisfying substantive requirements of permits
for on-site activity.

10.3

Independent Quality Assurance Team. If required by USEPA, Settling Defendants
shall designate an Independent Quality Assurance Team (IQAT). The IQAT will be
independent of the Supervising Contractor. Settling Defendants may hire a third party for
this purpose. Settling Defendants’ notice must include the names, titles, contact
information, and qualifications of the members of the IQAT. The IQAT will have the
responsibility to determine whether Work is of expected quality and conforms to
applicable plans and specifications. The IQAT will have the responsibilities as described
in Chapter 2.1.3 of the Guidance on EPA Oversight of Remedial Designs and Remedial
Actions Performed by Potentially Responsible Parties, EPA/540/G-90/001 (April 1990).

10.4

Meetings and Inspections
(a)

Preconstruction Conference. Settling Defendants shall hold a preconstruction
conference with USEPA, NNEPA and others as directed or approved by USEPA
and as described in the Remedial Design/Remedial Action Handbook, EPA 540/R95/059 (June 1995). Settling Defendants shall prepare minutes of the conference
and shall distribute the minutes to all Parties.

(b)

Periodic Meetings. During the construction portion of the RA, Settling
Defendants shall meet regularly with USEPA, NNEPA and others as directed or
determined by USEPA, to discuss construction issues. Settling Defendants shall
distribute an agenda and list of attendees to all Parties prior to each meeting.

17

Settling Defendants shall prepare minutes of the meetings and shall distribute the
minutes to all Parties.
(c)

Inspections
(1)

(2)

If needed by USEPA or NNEPA, Settling Defendants shall provide on-site
office space for USEPA or NNEPA personnel to perform their oversight
duties. The minimum office requirements are a private office with at least
150 square feet of floor space, an office desk with chair, a telephone with
a private line if cell service is unreliable, access to facsimile and
reproduction machines, wireless internet access, and sanitation facilities.

(3)

10.5

USEPA or its representative will conduct periodic inspections of, or have
an on-site presence, during the Work. At USEPA’s request, the
Supervising Contractor or other designee shall accompany USEPA or its
representative during inspections.

If needed by USEPA, Settling Defendants shall provide personal
protective equipment such as hard hats and reflective vests needed for
USEPA personnel and any oversight officials to perform their oversight
duties.

Off-Site Shipments
(a)

Hazardous substances, pollutants and contaminants. Settling Defendants may
ship hazardous substances, pollutants, and contaminants from one or more Mine
Sites to an off-site facility only if Settling Defendants comply with Section
121(d)(3) of CERCLA, 42 U.S.C. § 9621(d)(3), and 40 C.F.R. § 300.440. Settling
Defendants will be deemed to be in compliance with CERCLA § 121(d)(3) and
40 C.F.R. § 300.440 regarding a shipment if Settling Defendants obtain a prior
determination from USEPA that the proposed receiving facility for such shipment
is acceptable under the criteria of 40 C.F.R. § 300.440(b).

(b)

Waste Material. Settling Defendants may ship Waste Material from the Mine
Sites to an out-of-state waste management facility only if, prior to any shipment,
they provide notice to the appropriate state environmental official in the receiving
facility’s state and to the USEPA Project Coordinator. This notice requirement
will not apply to any off-site shipments when the total quantity of all such
shipments does not exceed 10 cubic yards. The notice must include the following
information, if available: (1) the name and location of the receiving facility;
(2) the type and quantity of Waste Material to be shipped; (3) the schedule for the
shipment; and (4) the method of transportation. Settling Defendants also shall
notify the state environmental official referenced above and the USEPA Project
Coordinator of any major changes in the shipment plan, such as a decision to ship
the Waste Material to a different out-of-state facility. Settling Defendants shall
provide the notice after the award of the contract for RA construction and before
the Waste Material is shipped. If Waste Material will be transported across

18

Navajo Nation lands, Settling Defendants also shall provide at least four days
advance notice to NNEPA and the Navajo Director of Public Safety of the
information listed in (1)-(4) and the route of the shipment.
(c)

10.6

Investigation Derived Waste. Settling Defendants may ship Investigation
Derived Waste (“IDW”) from the Mine Sites to an off-site facility only if they
comply with Section 121(d)(3) of CERCLA, 42 U.S.C. § 9621(d)(3), 40 C.F.R. §
300.440, EPA’s Guide to Management of Investigation Derived Waste, OSWER
9345.3-03FS (Jan. 1992), and any IDW-specific requirements contained in the
Action Memo or ROD. Wastes shipped off-site to a laboratory for
characterization, and RCRA hazardous wastes that meet the requirements for an
exemption from RCRA under 40 CFR § 261.4(e) shipped off-site for treatability
studies, are not subject to 40 C.F.R. § 300.440.

RA Construction Completion
(a)

RA Construction. For purposes of this ¶ 10.6(a), “RA Construction” comprises,
for any RA that involves the construction and operation of a system to achieve
Performance Standards (for example, groundwater or surface water restoration
remedies), the construction of such system and the performance of all activities
necessary for the system to function properly and as designed.

(b)

Inspection of Constructed Remedy. Settling Defendants shall schedule an
inspection to review the construction and operation of the system and to review
whether the system is functioning properly and as designed. The inspection must
be attended by Settling Defendants, USEPA and/or their representatives, and
NNEPA if NNEPA requests to be present. A re-inspection must be conducted if
requested by USEPA.

(c)

Shakedown Period. There shall be a shakedown period of up to one year for
USEPA to review whether the remedy is functioning properly and performing as
designed. Settling Defendants shall provide such information as USEPA requests
for such review, with copies to NNEPA.

(d)

RA Construction Deficiencies. Upon notification by USEPA of any deficiencies
in the RA Construction, Settling Defendants shall take all necessary steps to
correct the deficiencies and/or bring the RA Construction into compliance with
the approved RD, any approved design changes, and/or the approved RAWP. If
applicable, Settling Defendants shall comply with any schedule provided by
USEPA in its notice of deficiency.

(e)

RA Construction Report. Following the shakedown period, Settling Defendants
shall submit an “RA Report” for each Mine Site or group of Mine Sites requesting
USEPA’s determination that RA Construction has been completed. The RA
Report must: (1) include statements by a registered professional engineer and by
Settling Defendants’ Project Coordinator that construction of the system is
complete and that the system is functioning properly and as designed; (2) include

19

a demonstration, and supporting documentation, that construction of the system is
complete and that the system is functioning properly and as designed; (3) include
as-built drawings signed and stamped by a registered professional engineer; (4) be
prepared in accordance with Chapter 2 (Remedial Action Completion) of
USEPA’s Close Out Procedures for NPL Sites guidance (May 2011); and (5) be
certified in accordance with ¶ 13.4 (Certification).
(f)

USEPA Concludes RA Construction Not Complete. If USEPA determines that
RA Construction is not complete, USEPA shall so notify Settling Defendants.
USEPA’s notice will include a description of, and schedule for, the activities that
Settling Defendants must perform to complete RA Construction. USEPA’s notice
may include a schedule for completion of such activities or may require Settling
Defendants to submit a proposed schedule for USEPA approval or approval with
modification. Settling Defendants shall perform all activities described in the
USEPA notice in accordance with the schedule.

(g)

USEPA Concludes RA Construction Complete. If USEPA determines, based
on the initial or any subsequent RA Report, that RA Construction is complete,
USEPA shall so notify Settling Defendants.

10.7

Periodic Review Support Plan (PRSP). Settling Defendants shall submit the PRSP for
USEPA approval or approval with modification. The PRSP addresses the studies and
investigations that Settling Defendants shall conduct to support USEPA’s reviews of
whether the RA is protective of human health and the environment in accordance with
Section 121(c) of CERCLA, 42 U.S.C. § 9621(c) (also known as “Five-year Reviews”).
Settling Defendants shall develop the plan in accordance with Comprehensive Five-year
Review Guidance, OSWER 9355.7-03B-P (June 2001), and any other relevant five-year
review guidance.

10.8

Notification of Completion of Decision Document Response Action
(a)

Decision Document Response Action Inspection. Settling Defendants shall
schedule an inspection for the purpose of obtaining USEPA’s Notification of
Completion of each Decision Document Response Action. The inspection must be
attended by Settling Defendants, USEPA and/or their representatives, and
NNEPA if NNEPA requests to be present.

(b)

Decision Document Response Action Completion Report. Following the
inspection, Settling Defendants shall submit a report to USEPA, with a copy to
NNEPA, documenting the completion of response actions required under the
Decision Document, with the exception of O&M and/or post-removal site control,
and requesting USEPA’s Notification of Completion of such Decision Document
Response Action. The report must: (1) include certifications by a registered
professional engineer and by Settling Defendants’ Project Coordinator that the
response actions required under the Decision Document, with the exception of
O&M and/or post-removal site control activities, is complete; and (2) be certified
in accordance with ¶ 13.4 (Certification). If the RA Report or PSRP submitted

20

under ¶ 10.7 includes all elements required under this ¶ 10.8(b), then the RA
Report or PSRP suffices to satisfy all requirements under this ¶ 10.8(b).
(c)

(d)

11.

USEPA Concludes Response Action Not Complete. If USEPA concludes that
the Response Action is not complete, USEPA shall so notify Settling Defendants.
USEPA’s notice must include a description of the activities that Settling
Defendants must perform to complete the Response Action. USEPA’s notice must
include specifications and a schedule for such activities or must require Settling
Defendants to submit specifications and a schedule for USEPA approval or
approval with modification. Settling Defendants shall perform all activities
described in the notice or in the USEPA-approved specifications and schedule.
USEPA Concludes Response Action Complete. If USEPA concludes, based on
the initial or any subsequent report requesting Notification of Completion of
Response Action, that the Response Action is complete, except for any continuing
obligations under the CD, USEPA shall so certify in writing to Settling
Defendants. Issuance of the Notification of Completion of each Decision
Document Response Action does not affect the following continuing obligations:
(1) activities under the Periodic Review Support Plan; (2) obligations under
Sections VIII (Property Requirements), XX (Retention of Records), and XIX
(Access to Information) of the CD; (3) Institutional Controls obligations as
provided in the ICIAP; (4) any other relevant obligations; and (5) reimbursement
of USEPA’s Future Response Costs under Section IX (Payments for Response
Costs) of the CD.

OPERATION AND MAINTENANCE AND POST REMOVAL SITE CONTROL

11.1

O&M and PRSC. Settling Defendants shall conduct O&M or PRSC for each Mine Site
or group of Mine Sites, unless otherwise specified by USEPA, after reasonable
opportunity for review and comment by NNEPA. O&M and PRSC may include:
operation of treatment remedies; periodic inspection of the Mine Sites and any remedies,
including waste repositories; and, monitoring and repair of erosion control measures at
Mine Sites and any waste repositories, and monitoring any ICs implemented as part of a
removal or remedial action under the CD. Settling Defendants shall also conduct remedy
review at each Mine Site or Group of Sites, unless otherwise specified by USEPA
pursuant to the obligation under Section VII (Remedy Review) of the CD.

11.2

O&M Plan or PRSC Plan. Settling Defendants shall submit to USPEA, with a copy to
NNEPA, for review and approval or approval with modification an O&M Plan or PRSC
Plan that describes the requirements for inspecting, operating, and maintaining the RA.
Settling Defendants shall develop the O&M Plan or PRSC Plan in accordance with
Operation and Maintenance in the Superfund Program, OSWER 9200.1 37FS,
EPA/540/F-01/004 (May 2001). The O&M Plan or PRSC Plan must include the
following additional requirements:
(a)

Description of performance standards (“PS”) required to be met to implement the
Action Memo or ROD;

21

(b)

Frequency and description of activities to be performed: (i) to provide confidence
that PS will be met; and (ii) to determine whether PS have been met;

(c)

O&M or PRSC Reporting. Description of records and reports that will be
generated during O&M or PRSC, such as daily operating logs, laboratory records,
records of operating costs, reports regarding emergencies, personnel and
maintenance records, monitoring reports, and monthly and annual reports to
USEPA and NNEPA;

(d)

Description of corrective action in case of systems failure, including: (i)
alternative procedures to prevent the release or threatened release of Waste
Material which may endanger public health and the environment or may cause a
failure to achieve PS; (ii) analysis of vulnerability and additional resource
requirements should a failure occur; (iii) notification and reporting requirements
should O&M or PRSC systems fail or be in danger of imminent failure; and, (iv)
community notification requirements; and,

(e)

Description of corrective action to be implemented in the event that PS are not
achieved; and a schedule for implementing these corrective actions.

11.3

O&M or PRSC Manual. Settling Defendants shall submit to USEPA and NNEPA an
O&M or PRSC Manual that serves as a guide to the purpose and function of the
equipment and systems that make up the remedy. Settling Defendants shall develop the
O&M or PRSC Manual in accordance with Operation and Maintenance in the Superfund
Program, OSWER 9200.1 37FS, EPA/540/F-01/004 (May 2001).

11.4

Certification of Work Completion
(a)

Work Completion Inspection. Settling Defendants shall schedule an inspection
for the purpose of obtaining USEPA’s Certification of Work Completion for all of
the Mine Sites. The inspection must be attended by Settling Defendants, USEPA
and/or their representatives, and NNEPA if NNEPA requests to be present.

(b)

Work Completion Report. Following the inspection, Settling Defendants shall
submit a report to USEPA, with a copy to NNEPA, requesting USEPA’s
Certification of Work Completion. The report must: (1) include certifications by a
registered professional engineer and by Settling Defendants’ Project Coordinator
that the Work, including all O&M and/or post-removal site control activities, is
complete; and (2) be certified in accordance with ¶ 13.4 (Certification). If the RA
Report or Monitoring Report submitted under ¶ 10.8(b) includes all elements
required under this ¶ 11.4(b), then the RA Report or Monitoring Report suffices to
satisfy all requirements under this ¶ 11.4(b).

(c)

USEPA Concludes Work Not Complete. If USEPA concludes that the Work is
not complete, USEPA shall so notify Settling Defendants. USEPA’s notice must
include a description of the activities that Settling Defendants must perform to
complete the Work. USEPA’s notice must include specifications and a schedule
for such activities or must require Settling Defendants to submit specifications
22

and a schedule for USEPA approval or approval with modification. Settling
Defendants shall perform all activities described in the notice or in the USEPAapproved specifications and schedule.
(d)

USEPA Concludes Work Complete. If USEPA concludes, based on the initial
or any subsequent report requesting Certification of Work Completion, that the
Work is complete, except for any continuing obligations under the CD, USEPA
shall so certify in writing to Settling Defendants. Issuance of the Certification of
Work Completion does not affect the following continuing obligations: (1)
activities under the Periodic Review Support Plan; (2) obligations under Sections
VIII (Property Requirements), XX (Retention of Records), and XIX (Access to
Information) of the CD; (3) Institutional Controls obligations as provided in the
ICIAP; (4) any other relevant obligations; and (5) reimbursement of USEPA’s
Future Response Costs under Section IX (Payments for Response Costs) of the
CD.
12.

REPORTING

12.1

Weekly Technical Calls. Settling Defendants shall, as needed, participate in weekly
technical conference calls with USEPA’s project manager, USEPA’s consultants and
NNEPA representatives. On the weekly call, Settling Defendants’ representatives shall
provide updates on all tasks and raise issues that may need to be resolved in order to
expedite completion of the Work.

12.2

Quarterly Progress Reports. Commencing with the quarter following lodging of the CD
and until USEPA approves the RA Completion or RA Construction Completion, Settling
Defendants shall submit quarterly progress reports to USEPA with a copy to NNEPA.
These reports must be submitted within 30 days after the end of each quarter. The reports
must cover all activities that took place during the prior reporting period, including:
(a)

The actions taken to achieve compliance with the SMP;

(b)

A summary of all results of sampling, tests, and all other data received or
generated by Settling Defendants;

(c)

A description of all deliverables that Settling Defendants submitted to USEPA;

(d)

A description of all activities that are scheduled for the next quarter;

(e)

A description of any problems, delays, or adverse conditions which materially
impair the ability to meet the Deadlines in the SMP, and a description of efforts
made to mitigate those delays or anticipated delays;

(f)

A description of any modifications to the SMP, work plans or other schedules that
Settling Defendants have proposed or that have been approved by USEPA;

(g)

A summary of expenditures and costs incurred for the reporting period and the
SMP calendar year, with an explanation of any significant discrepancies in the
23

SMP cost estimates, including actual costs that deviate from the estimate costs by
10%; and,
(h)
12.3

A description of all activities undertaken in support of the CIP during the
reporting period and those to be undertaken in the next quarter.

Laboratory Results. A copy of all validated laboratory results shall be provided to
USEPA, with a copy to NNEPA, within 5 days of Settling Defendants’ or Settling
Defendants’ consultant's receipt of such results.
13.

DELIVERABLES

13.1

Applicability. Settling Defendants shall submit deliverables for USEPA approval or for
USEPA and NNEPA comment as specified in the SOW and the SMP. If neither is
specified, the deliverable does not require USEPA’s approval or comment. Paragraphs
13.2 (General Requirements for Deliverables) through Paragraphs 13.3 (Technical
Specifications) apply to all deliverables. Paragraph 13.4 (Certification) applies to any
deliverable that is required to be certified. Paragraph 13.5 (Approval of Deliverables)
applies to any deliverable that is required to be submitted for USEPA approval.

13.2

General Requirements for Deliverables. All deliverables must be submitted by the
deadlines in the SMP. Settling Defendants shall submit all deliverables to USEPA and
NNEPA in electronic form pursuant to Section XXI (Notices and Submissions) of the
CD. Technical specifications for sampling and monitoring data and spatial data are
addressed in ¶ 13.3 (Technical Specifications). If requested by USEPA, Settling
Defendants shall submit paper copies of deliverables including maps, drawings or other
exhibits that are larger than 8.5” by 11”.

13.3

Technical Specifications. Sampling and monitoring data should be submitted in standard
regional Electronic Data Deliverable (EDD) format. Unless otherwise specified by
USEPA, Settling Defendants shall provide project data in electronic formats that can be
imported into Scribe, a software tool developed by USEPA. Site-specific data will be
maintained and managed using a geographic information system (GIS). Unless otherwise
specified by USEPA, Settling Defendants shall provide data in the following formats:
(a)

Photographs and videos will be provided in native format (e.g., jpeg or MP3).

(b)

Hardcopies of relevant non-digital data will be provided (e.g., maps and historical
aerial photographs); applicable hard copy maps may be scanned into Geotiff
format.

(c)

Tabular data not included in the GIS, including laboratory analytical results, will
be provided as Microsoft Access or Excel files in a consistent electronic data
deliverable (EDD) format.

(d)

Global position system (GPS) point coordinates not included in the GIS will be
provided.

24

(e)

(f)

Each file must include an attribute name for each site unit or sub-unit submitted.
Consult https://www.epa.gov/geospatial/geospatial-policies-and-standards for any
further available guidance on attribute identification and naming.

(g)
13.4

Spatial data, including spatially-referenced data and geospatial data, should be
submitted: (1) in the ESRI File Geodatabase format; and, (2) as unprojected
geographic coordinates in decimal degree format using North American Datum
1983 (NAD83) or World Geodetic System 1984 (WGS84) as the datum. If
applicable, submissions should include the collection method(s). Projected
coordinates may optionally be included but must be documented. Spatial data
should be accompanied by metadata, and such metadata should be compliant with
the Federal Geographic Data Committee (FGDC) Content Standard for Digital
Geospatial Metadata and its USEPA profile, the USEPA Geospatial Metadata
Technical Specification. An add-on metadata editor for ESRI software, the
USEPA Metadata Editor (EME), complies with these FGDC and USEPA
metadata requirements and is available at https://edg.epa.gov/EME/.

Spatial data submitted by Settling Defendants does not, and is not intended to,
define the boundaries of the Mine Sites.

Certification. All deliverables that require compliance with this ¶ 13.4 must be signed by
the Settling Defendants’ Project Coordinator, or other responsible official of Settling
Defendants, and must contain the following statement:
I certify under penalty of law that this document and all attachments were
prepared under my direction or supervision in accordance with a system designed
to assure that qualified personnel properly gather and evaluate the information
submitted. Based on my inquiry of the person or persons who manage the system,
or those persons directly responsible for gathering the information, the
information submitted is, to the best of my knowledge and belief, true, accurate,
and complete. I have no personal knowledge that the information submitted is
other than true, accurate, and complete. I am aware that there are significant
penalties for submitting false information, including the possibility of fine and
imprisonment for knowing violations.

13.5

Approval of Deliverables.
(a)

Initial Submissions.
(1)

After review of any deliverable that is required to be submitted for
USEPA approval under the CD or the SOW, USEPA shall: (i) approve, in
whole or in part, the submission; (ii) approve the submission upon
specified conditions; (iii) disapprove, in whole or in part, the submission;
or (iv) any combination of the foregoing.

(2)

USEPA also may modify the initial submission to cure deficiencies in the
submission if: (i) USEPA determines that disapproving the submission
and awaiting a resubmission would cause substantial disruption to the
25

Work; or (ii) previous submission(s) have been disapproved due to
material defects and the deficiencies in the initial submission under
consideration indicate a bad faith lack of effort to submit an acceptable
deliverable.
(b)

(c)

13.6

Resubmissions. Upon receipt of a notice of disapproval under ¶ 13.5(a) (Initial
Submissions), or if required by a notice of approval upon specified conditions
under ¶ 13.5(a), Settling Defendants shall, within 14 days or such longer time as
specified by USEPA in such notice, correct the deficiencies and resubmit the
deliverable for approval. After review of the resubmitted deliverable, USEPA
may: (1) approve, in whole or in part, the resubmission; (2) approve the
resubmission upon specified conditions; (3) modify the resubmission; (4)
disapprove, in whole or in part, the resubmission, requiring Settling Defendants to
correct the deficiencies; or (5) any combination of the foregoing.
Implementation. Upon approval, approval upon conditions, or modification by
USEPA under ¶ 13.5(a) (Initial Submissions) or ¶ 13.5(b) (Resubmissions), of
any deliverable, or any portion thereof: (1) such deliverable, or portion thereof,
will be incorporated into and enforceable under the CD; and (2) Settling
Defendants shall take any action required by such deliverable, or portion thereof.
The implementation of any non-deficient portion of a deliverable submitted or
resubmitted under ¶ 13.5(a) or ¶ 13.5(b) does not relieve Settling Defendants of
any liability for stipulated penalties under Section XIV (Stipulated Penalties) of
the CD.

Supporting Deliverables. Settling Defendants shall submit each of the following
supporting deliverables for USEPA approval or approval with modifications, except as
specifically provided. Settling Defendants shall develop the deliverables in accordance
with all applicable regulations, guidance, and policies (see Section 17 (References)).
Settling Defendants shall update each of these supporting deliverables as necessary or
appropriate during the course of the Work, and/or as requested by USEPA.
(a)

Health and Safety Plan. The Health and Safety Plan (HASP) describes all
activities to be performed to protect on site personnel and area residents from
physical, chemical, and all other hazards posed by the Work. Settling Defendants
shall develop the HASP in accordance with USEPA’s Emergency Responder
Health and Safety and Occupational Safety and Health Administration (OSHA)
requirements under 29 C.F.R. §§ 1910 and 1926. The HASP should cover RD
activities and should be, as appropriate, updated to cover activities during the RA
and updated to cover activities after RA completion. USEPA does not approve the
HASP, but will review it to ensure that all necessary elements are included and
that the plan provides for the protection of human health and the environment.

(b)

Emergency Response Plan. The Emergency Response Plan (ERP) must describe
procedures to be used in the event of an accident or emergency at the Mine Sites
(for example, power outages, mine waste transport accidents, water impoundment
failure, treatment plant failure, slope failure, etc.). The ERP must include:

26

(1)
(2)

Plan and date(s) for meeting(s) with the Navajo Nation, NNEPA, Navajo
chapters, local community, including local, State, and federal agencies
involved in the cleanup, as well as local emergency squads and hospitals;

(3)

Spill Prevention, Control, and Countermeasures (SPCC) Plan (if
applicable), consistent with the regulations under 40 C.F.R. Part 112,
describing measures to prevent, and contingency plans for, spills and
discharges;

(4)

Notification activities in accordance with Section 12.b (Release
Reporting) of the CD in the event of a release of hazardous substances
requiring reporting under Section 103 of CERCLA, 42 U.S.C. § 9603, or
Section 304 of the Emergency Planning and Community Right-to-know
Act (EPCRA), 42 U.S.C. § 11004; and

(5)

(c)

Name of the person or entity responsible for responding in the event of an
emergency incident;

A description of all necessary actions to ensure compliance with Section
12 (Emergencies and Releases) of the CD in the event of an occurrence
during the performance of the Work that causes or threatens a release of
Waste Material from the Mine Sites that constitutes an emergency or may
present an immediate threat to public health or welfare or the environment.

Data Management Plan. Settling Defendants shall prepare a Data Management
Plan for USEPA review and approval or approval with modification that describes
the plan for the generation, validation, and distribution of project data
deliverables. At a minimum, the Data Management Plan shall address the
following topics:
(1)
(2)

The data management system, including databases, software and
specification of EDD;

(3)

Management and administration of the data management system,
including access, security and data backup; and,

(4)
(d)

Data management processes, including the data management team and
management of Mine Site data;

This plan will include a discussion of the management of both tabular and
spatial (GIS) data.

Field Sampling Plan. The Field Sampling Plan (FSP) addresses all sample
collection activities. The FSP must be written so that a field sampling team
unfamiliar with the project would be able to gather the samples and field
information required. The FSP shall include vertical and lateral characterization
and verification sampling utilizing an appropriate statistical approach and a
sufficient radiological scanning approach. An approach consistent with
27

MARSSIM should be used. Visual Sampling Plan software can be used to
properly document that soil sampling approach is statistically representative.
Settling Defendants shall develop the FSP in accordance with Guidance for
Conducting Remedial Investigations and Feasibility Studies, EPA/540/G 89/004
(Oct. 1988).
(e)

Quality Assurance Project Plan. The Quality Assurance Project Plan (QAPP)
augments the FSP and addresses sample analysis and data handling regarding the
Work. The QAPP must include a detailed explanation of Settling Defendants’
quality assurance, quality control, and chain of custody procedures for all
assessment, treatability, design, compliance, and monitoring samples. Settling
Defendants shall develop the QAPP in accordance with EPA Requirements for
Quality Assurance Project Plans, QA/R-5, EPA/240/B-01/003 (Mar. 2001,
reissued May 2006); Guidance for Quality Assurance Project Plans., QA/G-5,
EPA/240/R 02/009 (Dec. 2002); and Uniform Federal Policy for Quality
Assurance Project Plans, Parts 1-3, EPA/505/B-04/900A though 900C
(Mar. 2005). The QAPP also must include procedures:
(1)

To ensure that USEPA and NNEPA and their authorized representative
have reasonable access to laboratories used by Settling Defendants in
implementing the CD (Settling Defendants’ Labs);

(2)

To ensure that Settling Defendants’ Labs analyze all samples submitted by
USEPA pursuant to the QAPP for quality assurance monitoring;

(3)

To ensure that Settling Defendants’ Labs perform all analyses using
USEPA-accepted methods (i.e., the methods documented in USEPA
Contract Laboratory Program Statement of Work for Inorganic Analysis,
ILM05.4 (Dec. 2006); USEPA Contract Laboratory Program Statement of
Work for Organic Analysis, SOM01.2 (amended Apr. 2007); and USEPA
Contract Laboratory Program Statement of Work for Inorganic Superfund
Methods (Multi-Media, Multi-Concentration), ISM01.2 (Jan. 2010)) or
other methods acceptable to USEPA;

(4)

To ensure that Settling Defendants’ Labs participate in an USEPAaccepted QA/QC program or other program QA/QC acceptable to
USEPA;

(5)

For Settling Defendants to provide USEPA and the NNEPA with 2-week
notice prior to any sample collection activity;

(6)

For Settling Defendants to provide split samples and/or duplicate samples
to USEPA and the NNEPA upon request;

(7)

For USEPA and the NNEPA to take any additional samples that they
deem necessary;

28

(8)

(9)

(f)

For USEPA and the NNEPA to provide to Settling Defendants, upon
request, split samples and/or duplicate samples in connection with
USEPA’s and the NNEPA’s oversight sampling; and,
For Settling Defendants to submit to USEPA and the NNEPA all sampling
and tests results and other data in connection with the implementation of
the CD.

Construction Quality Assurance/Quality Control Plan (CQA/QCP). The
purpose of the Construction Quality Assurance Plan (CQAP) is to describe
planned and systemic activities that provide confidence that the RA construction
will satisfy all plans, specifications, and related requirements, including quality
objectives. The purpose of the Construction Quality Control Plan (CQCP) is to
describe the activities to verify that RA construction has satisfied all plans,
specifications, and related requirements, including quality objectives. The
CQA/QCP must:
(1)
(2)

Describe the PS required to be met to achieve Completion of the RA;

(3)

Describe the activities to be performed: (i) to provide confidence that PS
will be met; and, (ii) to determine whether PS have been met;

(4)

Describe verification activities, such as inspections, sampling, testing,
monitoring, and production controls, under the CQA/QCP;

(5)

Describe industry standards and technical specifications used in
implementing the CQA/QCP;

(6)

Describe procedures for tracking construction deficiencies from
identification through corrective action;

(7)

Describe procedures for documenting all CQA/QCP activities; and

(8)
(g)

Identify, and describe the responsibilities of, the organizations and
personnel implementing the CQA/QCP;

Describe procedures for retention of documents and for final storage of
documents.

Transportation and Off-Site Disposal Plan. Settling Defendants shall submit to
USEPA for review and approval or approval with modification a Transportation
and Off-Site Disposal Plan (TODP) that describes plans to ensure compliance
with ¶ 10.5 (Off-Site Shipments). The TODP must include:
(1)

Proposed routes for off-site shipment of Waste Material;

(2)

Identification of communities affected by shipment of Waste Material;
and,

29

(3)
(h)

Description of plans to minimize impacts on affected communities.

Institutional Controls Implementation and Assurance Plan. The Institutional
Controls Implementation and Assurance Plan (ICIAP) describes plans to
implement, maintain, and enforce the Institutional Controls (ICs) at the Mine Site.
Settling Defendants shall develop the ICIAP in accordance with Institutional
Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing
Institutional Controls at Contaminated Sites, OSWER 9355.0-89, EPA/540/R09/001 (Dec. 2012), and Institutional Controls: A Guide to Preparing
Institutional Controls Implementation and Assurance Plans at Contaminated
Sites, OSWER 9200.0-77, EPA/540/R-09/02 (Dec. 2012). The ICIAP must
include the following additional requirements:
(1)

Locations of recorded real property interests (e.g., easements, liens) and
resource interests in the property that may affect ICs (e.g., surface,
mineral, and water rights) including accurate mapping and geographic
information system (GIS) coordinates of such interests; and

(2)

Legal descriptions and survey maps that are prepared according to current
American Land Title Association (ALTA) Survey guidelines and certified
by a licensed surveyor.
14.

SITE MANAGEMENT PLAN

14.1

SMP. Settling Defendants shall develop and submit an SMP to USEPA, with a copy to
NNEPA, for review and approval or approval with modification. The SMP shall be used
as a management tool in planning, reviewing, and setting priorities for all response
activities at the Mine Sites. The SMP is a dynamic document and will be revised annually
to accommodate new information, including changes to the schedules, costs, and other
variables.

14.2

SMP Content. The SMP shall include the following:
(a)

An overview of all Mine Sites covered by the CD and proposed groupings of
Mine Sites for purposes of completing the Work, including a figure or figures
showing mine site locations.

(b)

The list of mines where one or more Components of Work will be performed
during the relevant 3-year planning period;

(c)

A schedule of all Components of Work specified in Section 15 of this SOW and
interim tasks for each Component of Work that will be performed during the 3year planning period, except that the first period will begin upon the Effective
Date of the CD and end on December 31, 2020. The SMP may include a
combination of Components of Work to improve efficiency of the Work; and,

30

(d)

A budget of estimated costs for the relevant 3-year planning period for the
Components of Work in the SMP, with estimated costs separated by calendar
year.

14.3

Priority Setting Meeting. Each year, Settling Defendants, USEPA and NNEPA shall
meet to discuss priorities for Components of Work to be included in the SMP. Priorities
may include risks to public health and the environment. Other priorities may include
efficiencies such as performing the same task in multiple geographic areas, or performing
multiple tasks in a geographic area. Priority setting will also take into consideration the
actual and estimated cost of work performed in the SMP for the current calendar year,
and the estimated cost of future work. Based on this meeting, USEPA, after reasonable
opportunity for review and comment by NNEPA, will decide the priorities for the next
SMP.

14.4

SMP Considerations.
(a)

(b)

14.5

When formulating the annual SMP, Settling Defendants may consider the actual
costs incurred for work performed and the estimate of costs for the remainder of
the calendar year to evaluate whether the previously approved Components of
Work should change. Any proposed extensions or other changes to the schedule
for the Components of Work must be explained in a cover letter to the Draft
Amendment to the SMP.
If Settling Defendants propose, in the Amendment to the SMP, modifications to
the schedule for the Components of Work to which USEPA has not agreed, those
proposed modifications shall be treated as a request by Settling Defendants for an
extension. Schedules for Components of Work may be extended during the annual
SMP development process pursuant to this Section. If USEPA, after reasonable
opportunity for review and comment by NNEPA, denies the request for extension
or otherwise disapproves the Amendment, then Settling Defendants shall amend
the SMP in conformance with the USEPA comments.

SMP Timeline.
(a)

Priority Setting Meeting. The Initial SMP Priority Setting meeting shall occur
30 days after the Effective Date of the CD, and all future Priority Setting meetings
shall occur by September 30 of each year.

(b)

Draft SMP. Settling Defendants shall submit to USEPA, with a copy to NNEPA,
the Initial Draft SMP no later than 30 days after the Priority Setting meeting, and
shall submit all future Draft SMPs no later than 30 days after the Priority Setting
meeting in that year.

(c)

Final SMP. Settling Defendants shall submit to USEPA, with a copy to NNEPA,
the Final SMP by 30 days after receipt of any USEPA comments on the SMP. All
future Annual SMPs shall be developed by the latest of either December 31, or 30
days after receipt of any USEPA comments on the SMP.

31

14.6

Notice of SMP Schedule Changes. Settling Defendants shall notify USEPA and
NNEPA of any changes that will delay the SMP schedule. Settling Defendants shall
notify USEPA and NNEPA about delays of Components of Work as soon as possible and
at least 7 days prior to the SMP schedule for the Deadline. Settling Defendants shall
notify USEPA and NNEPA about delays to interim tasks, other than Components of
Work, in the next Quarterly Report.
15.

15.1

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

COMPONENTS OF WORK

Components of Work. Settling Defendants shall include the following Components of
Work in the SMP, as applicable. These Components of Work are subject to Section XIV
(Stipulated Penalties) of the CD. Components of Work may be combined to improve
efficiency of the Work as described in the SMP. The initial component of work shall
include, at a minimum, RSEs for the Mine Sites in Attachment A.

Components of Work
Quarterly Reports
Cultural Resource Surveys
Biological Resource Surveys
RSE or Remedial Investigation Work Plan
RSE or RI Report
Baseline Health and Ecological Risk Assessment Report
Interim Removal Action Work Plan
Interim Removal Action Completion Report
EE/CA or FS Work Plan
EE/CA or FS Report
Pre-Design Investigation Work Plan
Pre-Design Investigation Evaluation Report
Treatability Study Work Plan
Treatability Study Report
Removal or Remedial Design Work Plan
Pre-final Design (95%)
Final Design (100%)
Removal or Remedial Action Work Plan
Construction CQA/QCP
RA Construction Report
Decision Document Response Action Completion Report
O&M Plan or PRSC Plan
O&M Manual or PRSC Manual
Periodic Review Support Plan
Work Completion Report

32

¶ Ref.
12.2
4.7
4.8
5.2
5.4
6.1(a)
7.3
7.4
8.2
8.4
9.4(a)
9.4(b)
9.5(a)
9.5(b)
9.2
9.8
9.9
10.2
13.6(f)
10.6(e)
10.8(b)
11.2
11.3
10.7
11.4(b)

16.

NNEPA PARTICIPATION

16.1

Copies. Settling Defendants shall, at any time they send a deliverable to USEPA, send a
copy of such deliverable to NNEPA. USEPA shall, at any time it sends a notice,
authorization, approval, disapproval, or certification to Settling Defendants, send a copy
of such document to NNEPA.

16.2

Review and Comment. NNEPA shall have a reasonable opportunity for review and
comment prior to:
(a)

Any USEPA approval or disapproval under ¶ 13.5 (Approval of Deliverables) of
any deliverables that are required to be submitted for USEPA approval;

(b)

Any approval or disapproval of the Construction Phase under ¶ 10.6 (RA
Construction Completion), any disapproval of, or Notification of Response Action
Completion under ¶ 10.8 (Notification of Response Action Completion), and any
disapproval of, or Certification of Work Completion under ¶ 11.4 (Certification
of Work Completion); and

(c)

Any other actions taken under this SOW for which reasonable opportunity for
NNEPA to review and comment is specified.
17.

17.1

REFERENCES

The following regulations and guidance documents, among others, apply to the Work.
Any item for which a specific URL is not provided below is available on one of the two
USEPA Web pages listed in ¶ 17.2.
(a)

“Interim Final Risk Assessment Guidance for Superfund, Volume I - Human
Health Evaluation Manual (Part A),” (RAGS, EPA-540-1-89-002, OSWER
Directive 9285.7-01A, December 1989).

(b)

“Interim Final Risk Assessment Guidance for Superfund, Volume I - Human
Health Evaluation Manual (Part D, Standardized Planning, Reporting, and Review
of Superfund Risk Assessments),” (RAGS, EPA 540-R-97-033, OSWER
Directive 9285.7-01D, January 1998).

(c)

“Ecological Risk Assessment Guidance for Superfund: Process for Designing and
Conducting Ecological Risk Assessments” (ERAGS, EPA-540-R-97-006,
OSWER Directive 9285.7-25, June 1997).

(d)

Guidance on Conducting Non-Time-Critical Removal Actions under CERCLA,
OSWER (Aug. 1993), EPA 540-R-93-057.

(e)

A Compendium of Superfund Field Operations Methods, OSWER 9355.0-14,
EPA/540/P-87/001a (Aug. 1987).

33

(f)

CERCLA Compliance with Other Laws Manual, Part I: Interim Final, OSWER
9234.1-01, EPA/540/G-89/006 (Aug. 1988).

(g)

Guidance for Conducting Remedial Investigations and Feasibility Studies,
OSWER 9355.3-01, EPA/540/G-89/004 (Oct. 1988).

(h)

CERCLA Compliance with Other Laws Manual, Part II, OSWER 9234.1-02,
EPA/540/G-89/009 (Aug. 1989).

(i)

Guidance on EPA Oversight of Remedial Designs and Remedial Actions
Performed by Potentially Responsible Parties, OSWER 9355.5-01, EPA/540/G90/001 (Apr.1990).

(j)

Guidance on Expediting Remedial Design and Remedial Actions, OSWER
9355.5-02, EPA/540/G-90/006 (Aug. 1990).

(k)

Guide to Management of Investigation-Derived Wastes, OSWER 9345.3-03FS
(Jan. 1992).

(l)

Permits and Permit Equivalency Processes for CERCLA On-Site Response
Actions, OSWER 9355.7-03 (Feb. 1992).

(m)

Guidance for Conducting Treatability Studies under CERCLA, OSWER 9380.310, EPA/540/R-92/071A (Nov. 1992).

(n)

National Oil and Hazardous Substances Pollution Contingency Plan; Final Rule,
40 C.F.R. Part 300 (Oct. 1994).

(o)

Guidance for Scoping the Remedial Design, OSWER 9355.0-43, EPA/540/R95/025 (Mar. 1995).

(p)

Remedial Design/Remedial Action Handbook, OSWER 9355.0-04B, EPA/540/R95/059 (June 1995).

(q)

EPA Guidance for Data Quality Assessment, Practical Methods for Data
Analysis, QA/G-9, EPA/600/R-96/084 (July 2000).

(r)

Operation and Maintenance in the Superfund Program, OSWER 9200.1-37FS,
EPA/540/F-01/004 (May 2001).

(s)

Comprehensive Five-year Review Guidance, OSWER 9355.7-03B-P, 540-R-01007 (June 2001).

(t)

Guidance for Quality Assurance Project Plans, QA/G-5, EPA/240/R-02/009
(Dec. 2002).

(u)

Institutional Controls: Third Party Beneficiary Rights in Proprietary Controls
(Apr. 2004).

34

(v)

Quality management systems for environmental information and technology
programs -- Requirements with guidance for use, ASQ/ANSI E4:2014 (American
Society for Quality, February 2014).

(w)

Uniform Federal Policy for Quality Assurance Project Plans, Parts 1-3,
EPA/505/B-04/900A though 900C (Mar. 2005).

(x)

Superfund Community Involvement Handbook, SEMS 100000070
(January 2016) available at https://www.epa.gov/superfund/communityinvolvement-tools-and-resources.

(y)

EPA Guidance on Systematic Planning Using the Data Quality Objectives
Process, QA/G-4, EPA/240/B-06/001 (Feb. 2006).

(z)

EPA Requirements for Quality Assurance Project Plans, QA/R-5,
EPA/240/B-01/003 (Mar. 2001, reissued May 2006).

(aa)

EPA Requirements for Quality Management Plans, QA/R-2, EPA/240/B-01/002
(Mar. 2001, reissued May 2006).

(bb)

USEPA Contract Laboratory Program Statement of Work for Inorganic Analysis,
ILM05.4 (Dec. 2006).

(cc)

USEPA Contract Laboratory Program Statement of Work for Organic Analysis,
SOM01.2 (amended Apr. 2007).

(dd)

EPA National Geospatial Data Policy, CIO Policy Transmittal 05-002
(Aug. 2008), available at https://www.epa.gov/geospatial/geospatial-policies-andstandards and https://www.epa.gov/geospatial/epa-national-geospatial-datapolicy.

(ee)

Summary of Key Existing EPA CERCLA Policies for Groundwater Restoration,
OSWER 9283.1-33 (June 2009).

(ff)

Principles for Greener Cleanups (Aug. 2009), available at
https://www.epa.gov/greenercleanups/epa-principles-greener-cleanups.

(gg)

Providing Communities with Opportunities for Independent Technical Assistance
in Superfund Settlements, Interim (Sep. 2009).]

(hh)

EPA Contract Laboratory Program Statement of Work for Inorganic Superfund
Methods (Multi-Media, Multi-Concentration), ISM01.2 (Jan. 2010).

(ii)

Close Out Procedures for National Priorities List Sites, OSWER 9320.2-22
(May 2011).

(jj)

Groundwater Road Map: Recommended Process for Restoring Contaminated
Groundwater at Superfund Sites, OSWER 9283.1-34 (July 2011).

35

(kk)

Recommended Evaluation of Institutional Controls: Supplement to the
“Comprehensive Five-Year Review Guidance,” OSWER 9355.7-18 (Sep. 2011).

(ll)

Construction Specifications Institute’s MasterFormat 2012, available from the
Construction Specifications Institute, http://www.csinet.org/masterformat.

(mm) Updated Superfund Response and Settlement Approach for Sites Using the
Superfund Alternative Approach, OSWER 9200.2-125 (Sep. 2012)
(nn)

(oo)

Institutional Controls: A Guide to Preparing Institutional Controls Implementation
and Assurance Plans at Contaminated Sites, OSWER 9200.0-77, EPA/540/R09/02 (Dec. 2012).

(pp)

EPA’s Emergency Responder Health and Safety Manual, OSWER 9285.3-12
(July 2005 and updates), https://www.epaosc.org/_HealthSafetyManual/manualindex.htm.

(qq)

Broader Application of Remedial Design and Remedial Action Pilot Project
Lessons Learned, OSWER 9200.2-129 (Feb. 2013).

(rr)

Guidance for Evaluating Completion of Groundwater Restoration Remedial
Actions, OSWER 9355.0-129 (Nov. 2013).

(ss)
17.2

Institutional Controls: A Guide to Planning, Implementing, Maintaining, and
Enforcing Institutional Controls at Contaminated Sites, OSWER 9355.0-89,
EPA/540/R-09/001 (Dec. 2012).

Groundwater Remedy Completion Strategy: Moving Forward with the End in
Mind, OSWER 9200.2-144 (May 2014).

A more complete list may be found on the following USEPA Web pages:
Laws, Policy, and Guidance: https://www.epa.gov/superfund/superfund-policyguidance-and-laws
Test Methods Collections: https://www.epa.gov/measurements/collection-methods

17.3

For any regulation or guidance referenced in the CD or SOW, the reference will be read
to include any subsequent modification, amendment, or replacement of such regulation or
guidance. Such modifications, amendments, or replacements apply to the Work only after
Settling Defendants receive notification from USEPA of the modification, amendment, or
replacement.

Attachment A: List of 31 Mine Sites included in the initial component of Work.

36

ATTACHMENT A
Mine Claim
All Site IDs

1

51

2
3
4
5
6
7

Mine Name

Surface
Underground AEC records of ore
Area Acres Area Acres
production
(rounded)
(rounded)
(tons)

Group Name

Latitude (N)

Longitude (W)

31.7

0.7

4,278

Rattlesnake (Tse Tah)

36.8780031133

-109.2923296290

54
57
60
65
70
71

Martin Mine and George Simpson
No. 1
Rattlesnake
North Martin
Plot 1
Plot 4
Plot 8
Black Rock Point Mines

17.7
8.2
11.7
15.7
5.0
23.5

0.1
0.0
0.1
0.0
0.0
0.0

478
n/a
775
522
280
2,025

36.8770488527
36.8846103259
36.8999026375
36.9011753065
36.8951816771
36.8960334986

-109.2865764750
-109.2935038660
-109.2955065200
-109.2877881380
-109.2670863480
-109.2649210150

8
9
10
11
12
13
14
15

96
104
223
415
417
422
424
487

Mesa II 1/4 Mine
Cato No. 2
Rock Door No. 1
Mesa IV 1/4 Mine
Mesa III, West Mine
Billy Topaha Mine
Mesa III, Northwest Mine
King Tutt Point

2.2
6.5
5.4
6.0
6.6
4.4
7.3
13.5

0.3
0.0
0.0
0.3
0.0
0.0
0.1
0.4

725
52
25
344
n/a
703
735
1,384

36.5151713703
36.5480201387
37.0146880063
36.5282303341
36.5146359700
36.5005295341
36.5195447407
36.7091881856

-109.2343637110
-109.2498938690
-110.2149680890
-109.2611541410
-109.2507121510
-109.2253065200
-109.2477979150
-109.0271894650

16
17
18
19
20
21
22
23
24
25

491
510
513
623
627
628
631
632
634
663

Plot 7
Frank No. 2
Firelight No. 6
Plot 2
Plot 13
Plot 9
Plot 10
Plot 11
Plot 6
AEC Plot 3

8.9
3.9
10.5
16.0
13.6
10.7
17.3
23.2
35.6
3.1

0.0
0.3
0.2
0.0
0.0
0.0
0.1
0.1
2.5
0.0

500
n/a
2,141
443
180
230
783
500
14,956
n/a

36.8940570080
36.5321226646
36.9136145294
36.9051890787
36.8710128517
36.8878557510
36.8846551084
36.8851581276
36.8992983968
36.8732280168

-109.2699776990
-109.2529084440
-110.2597767890
-109.2920576660
-109.2909121370
-109.2623965460
-109.2633007350
-109.2607982270
-109.2700102000
-109.2861459150

26
27
28

664
665
667
106
505
509
241
521
635
636

Plot 3
Plot 5
Climax Transfer Station
South Portal, Frank No. 1 Mine
North Portal, Frank No. 1 Mine
East Portal, Frank No. 1 Mine

15.0
21.3
2.1
12.0
0.9
10.2
0.7
177.0
5.4
6.0

0.0
0.0
0.0
1.1
1.3
2.5
0.0
0.5
0.0
0.1

180
180
n/a

Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Red Rock / Shadyside
(King Tutt Mesa)
Lukachukai (Cove)
Lukachukai (Cove)
Monument Valley
Lukachukai (Cove)
Lukachukai (Cove)
Lukachukai (Cove)
Lukachukai (Cove)
Red Rock / Shadyside
(King Tutt Mesa)
Rattlesnake (Tse Tah)
Lukachukai (Cove)
Monument Valley
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Red Rock / Shadyside
(King Tutt Mesa)
Rattlesnake (Tse Tah)
Rattlesnake (Tse Tah)
Lukachukai (Cove)

36.9032467957
36.9018028751
36.7464944722
36.5304430903
36.5366909246
36.5331690026
36.9412038568
36.9320710334
36.9003612956
36.9006159217

-109.2859978510
-109.2841684320
-108.7021510220
-109.2545655060
-109.2556406100
-109.2518936640
-109.8886709960
-109.8848799080
-109.2677126980
-109.2724420060

Priority
Mine

29
30
31

Monument No. 2
Hoskie Henry

75,739

Lukachukai (Cove)

773,132

Monument Valley

978

Rattlesnake (Tse Tah)

yes

yes

yes

yes
yes

yes

yes

yes
yes

yes

Appendix D

CERCLA Financial Assurance Sample Performance Bond for Use in Connection with
Settlements

[Letterhead of Bond Issuer]
PERFORMANCE BOND
Surety’s Performance Bond Number:
Date of Execution of Performance Bond:
Effective Date of Performance Bond:
Total Dollar Amount of Performance Bond:

[insert number]
[insert date]
[insert date]
$[insert dollar amount]

PRINCIPAL:
Legal Name:
Address:
Contact Person(s)/Information:

[insert name of PRP/Settling Defendant]
[insert address]
[insert name and contact information (phone, email)]

SURETY:
Legal Name:
Address:
Contact Person(s)/Information:

[insert name of surety providing the bond]
[insert address]
[insert name and contact information (phone, email)]

BENEFICIARY:
Legal Name:

Address/Contact Information:
SITE INFORMATION:
Name and Location of Site:
EPA Identification Number:
Agreement Governing Site Work:

U.S. Environmental Protection Agency Region [insert #]
c/o [insert appropriate Regional official such as
“Superfund Division Director”]
[insert address and contact information (phone, email)]

[insert site name [operable unit] and location] (“Site”)
[insert Site/Spill Identification Number]
[That certain [insert as appropriate: “Consent Decree,”
“Administrative Settlement Agreement and Order on
Consent,” or “Settlement Agreement”] dated [insert date],
[insert as appropriate: civil action number for consent
decrees or EPA docket number for administrative
agreements], between the United States of America and
[insert settling parties] (the “Agreement”)]

KNOW ALL PERSONS BY THESE PRESENTS, THAT:

1

WHEREAS, said Principal is required, under the Agreement entered pursuant to the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),
42 U.S.C. §§ 9601-9675, to perform the “Work” as defined in such Agreement (hereinafter, the
“Work”) and to fulfill its other obligations as set forth therein; and
WHEREAS, said Principal is required by the Agreement to provide financial assurance
to ensure completion of the Work.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration the receipt of which is hereby acknowledged, the parties hereto agree as
follows:
1.
The Principal and Surety hereto are firmly bound to the United States
Environmental Protection Agency (EPA or Beneficiary), in the above Total Dollar Amount of
this Performance Bond, for the performance or payment of the Work, which we, the Principal
and Surety, bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly
and severally, subject to and in accordance with the terms and conditions hereof.
2.
The conditions of the Surety’s obligation hereunder are such that if the Principal
shall promptly, faithfully, fully, and finally complete the Work in accordance with the terms of
the Agreement, the Surety’s obligation hereunder shall be null and void; otherwise it is to remain
in full force and effect.
3.
Pursuant to and in accordance with the terms of the Agreement, and except as
specifically provided in Paragraph 5 below, the Surety shall become liable on the obligation
evidenced hereby only upon the Principal’s failure to perform all or any portion(s) of the Work,
EPA’s subsequent notice of a Work Takeover, and the Principal’s failure to remedy to EPA’s
satisfaction the circumstances giving rise to EPA’s issuance of such notice. At any time and from
time to time upon notification by EPA (as specified in the Agreement) that a Work Takeover has
commenced, the Surety shall, up to the Total Dollar Amount of the Performance Bond, promptly
(and in any event within 15 days after receiving such notification):
(a)

Commence to complete the Work to be done under the Agreement in
accordance with its terms and conditions; or

(b)

Pay to EPA funds in such amounts and to such person(s), account(s), or
otherwise as EPA may direct.

If the Surety does not render such performance or payment set forth above within the
specified 15-day period, the Surety shall be deemed to be in default of this Performance Bond
and EPA shall be entitled to enforce any remedy available to it at law, in equity, or otherwise;
provided, however, that if such default is susceptible of cure but cannot reasonably be cured
within such 15-day period and provided further that Surety shall have commenced to cure such
default within such 15-day period and thereafter diligently proceeds to perform the same, such
2

15-day period shall be extended for such time as is reasonably necessary for Surety in the
exercise of due diligence to cure such default, such additional period not to exceed 90 days.
4.
The liability of the Surety shall not be discharged by any performance, payment,
or succession of payments hereunder, unless and until such performance, payment, or payments
shall amount in the aggregate to the Total Dollar Amount of this Performance Bond, but in no
event shall the aggregate obligation of the Surety hereunder exceed the amount of said sum.
5.
The Surety may cancel this Performance Bond only by sending notice of
cancellation to the Principal and to the Beneficiary, provided, however, that no such cancellation
shall be effective during the 120-day period beginning on the date of receipt of the notice of
cancellation by both the Principal and the Beneficiary, as evidenced by return receipts. If after
90 days of such 120-day period, the Principal has failed to provide alternative financial assurance
to EPA in accordance with the terms of the Agreement, EPA shall have the right to (up to the
Total Dollar Amount of this Performance Bond) demand performance of the Work or draw on
the guaranteed funds.
6.
The Principal may terminate this Performance Bond only by sending written
notice of termination to the Surety and to the Beneficiary, provided, however, that no such
termination shall become effective unless and until the Surety receives written authorization for
termination of this Performance Bond by the Beneficiary.
7.
Any modification, revision, or amendment that may be made to the terms of the
Agreement or to the Work to be done thereunder, or any extension of the Agreement, or other
forbearance on the part of either the Principal or Beneficiary to the other, shall not in any way
release the Principal and the Surety, or either of them, or their heirs, executors, administrators,
successors, or assigns from liability hereunder. The Surety hereby expressly waives notice of any
change, revision, or amendment to the Agreement or to any related obligations between the
Principal and the Beneficiary.
8.
The Surety will immediately notify the Beneficiary of any of the following
events: (a) the filing by the Surety of a petition seeking to take advantage of any laws relating to
bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts;
(b) the Surety’s consent to (or failure to contest in a timely manner) any petition filed against it
in an involuntary case under such bankruptcy or other laws; (c) the Surety’s application for (or
consent to or failure to contest in a timely manner) the appointment of, or the taking of
possession by, a receiver, custodian, trustee, liquidator, or the like of itself or of all or a
substantial part of its assets; (d) the Surety’s making a general assignment for the benefit of
creditors; or (e) the Surety’s taking any corporate action for the purpose of effecting any of the
foregoing.

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9.
Any provision in this Performance Bond that conflicts with CERCLA or any other
applicable statutory or legal requirement shall be deemed deleted herefrom and provisions
conforming to such statutory or legal requirement shall be deemed incorporated herein.
10.
All notices, elections, consents, approvals, demands, and requests required or
permitted hereunder shall be given in writing to (unless updated from time to time) the
addressees shown on the first page of this Performance Bond, identify the Site, and provide a
contact person (and contact information). All such correspondence shall be: (a) effective for all
purposes if hand delivered or sent by (i) certified or registered United States mail, postage
prepaid, return receipt requested or (ii) expedited prepaid delivery service, either commercial or
United States Postal Service, with proof of attempted delivery, to the relevant address shown on
the first page of this Performance Bond; and (b) effective and deemed received upon the earliest
of (i) the actual receipt of the same by personal delivery or otherwise, (ii) one business day after
being deposited with a nationally recognized overnight courier service as required above, or (iii)
three business days after being deposited in the United States mail as required above. Rejection
or other refusal to accept or the inability to deliver because of changed address of which no
notice was given as herein required shall be deemed to be receipt of the notice, election, consent,
approval, demand, or request sent.
11.
The Surety hereby agrees that the obligations of the Surety under this
Performance Bond shall be in no way impaired or affected by any winding up, insolvency,
bankruptcy, or reorganization of the Principal or by any other arrangement or rearrangement of
the Principal for the benefit of creditors.
12.
No right of action shall accrue on this Performance Bond to or for the use of any
person other than the Beneficiary or the executors, administrators, successors, or assigns of the
Beneficiary.
[SIGNATURES ON FOLLOWING PAGE]

4

IN WITNESS WHEREOF, the Principal and Surety have executed this Performance
Bond and have affixed their seals on the date set forth above.
The persons whose signatures appear below hereby represent, warrant, and certify that
they are authorized to execute this Performance Bond on behalf of the Principal and Surety,
respectively.
FOR THE PRINCIPAL:
Date: _____________

By [signature]:
Printed name:
Title:

________________________
________________________
________________________

State of [insert state]
County of [insert county]
On this [insert date], before me personally came [insert name of PRP/Settling Defendant’s
signatory] to me known, who, being by me duly sworn, did depose and say that she/he is [insert
title] of [insert name of PRP/Settling Defendant], the entity described in and which executed
the above instrument; and that she/he signed her/his name thereto.
_______________________
[Signature of Notary Public]
FOR THE SURETY:
Date: _____________

By [signature]:
Printed name:
Title:

________________________
________________________
________________________

State of [insert state]
County of [insert county]
On this [insert date], before me personally came [insert name of Surety’s signatory] to me
known, who, being by me duly sworn, did depose and say that she/he is [insert title] of [insert
name of Surety], the entity described in and which executed the above instrument; and that
she/he signed her/his name thereto.
_______________________
[Signature of Notary Public]

5

Appendix E

APPENDIX E: NAVAJO INFORMAL DISPUTE RESOLUTION PROCEDURE
The Parties are hopeful that there will be very limited areas of disagreement between
them. Nevertheless, disputes can always arise and it is therefore important to establish a dispute
resolution process as part of this CD. The purpose of this paragraph is to establish a process to
talk through any dispute before resorting to other methods. In that regard the Navajo Nation,
with the invaluable assistance of former Navajo Nation Supreme Court Chief Justice Robert
Yazzie and former Director of the Navajo Abandoned Mines Program Perry Charley, has
provided the following discussion of Navajo Fundamental Law which it believes should inform
any such discussions:
a.

If one conceives of the notion of problem-solving as a circle, or sun with

four stages, the process begins on the eastern side of the circle and might be labeled in Navajo as
“nitsahakees” or “thinking.” Thinking is key and it takes a long time. It goes on and on. Perhaps
it has no beginning and no end. In this process of thinking about remediating the uranium
contamination left over from past uranium mining on Navajo lands it is almost impossible to
identify a beginning. The Navajo paradigm and the four stages within it are imbedded with one
another. No one stage can exist without the other. Regardless, Navajo problem-solving begins
with thinking. This CD has required a great deal of thinking. Thinking is examining root causes
of a problem and its nature and consequences. Before we can decide on a solution (“nahat’a” or
“planning”) we must understand the problem. If we have done our job well, there will be few
disagreements.
b.

After “thinking” comes “nahat’a” or “planning.” Planning may be

visualized as the southernmost point of the circle. Inside the circle is the milieu of life. For the
Navajo this means many things including the sacred elements (air, water, fire and earth/pollen),
the sacred mountains, and “Nayee” (things that get in the way of a good life).
c.

After “planning” comes “Iina” or the life that “implements” the planning.

“Implementation” may be seen as the westernmost point of the circle. Again, this takes time and
interacts with the forces visualized as being inside the circle. Obstacles emerge and interfere with

the implementation. Insights arise and help the implementation. But, if the thinking continues
and the planning continues, this leads to hopeful and positive results.
d.

After “implementation” comes “sihasin” which means many things

including “results.” Results appear at the northernmost point of the circle. Results follow
thinking, planning and implementation. For all the Parties here the desired results mean the
expeditious implementation of this CD, although each Party likely has its own reasons for
wanting this result. For the Navajo Nation, this result is desired because it represents a step
toward the complete remediation of all uranium contamination left over from past uranium
mining on Navajo lands. The Navajo Nation understands the difficulties and challenges faced in
achieving that goal. Still, the goal is worth the effort.
It is often difficult to keep focus on the nested nature of the four aspects discussed
here. Each aspect is re-evaluated by discussion of what has worked and what has failed.

2

Appendix F

U.S. Four Corners Uranium Mine Sites Trust Agreement
This Trust Agreement is entered into by and among Cyprus Amax Minerals Company,
Western Nuclear, Inc., (collectively, “Settling Defendants”); the United States of America
(“United States”); and Le Petomane XXX, Inc., not individually but solely as trustee of the Trust
established herein (“Trustee”).
RECITALS
A.
The United States and Settling Defendants entered into a Consent Decree that was
signed by them and the Navajo Nation (a federally recognized Indian tribe) and lodged in the U.S.
District Court for the District of Arizona on January 17, 2017.
B.
The Consent Decree provides for the creation of the Trust and for the transfer of
funding to the Trust, to be administered by the Trustee pursuant to this Agreement and the Consent
Decree.
C.
Under the Consent Decree, Settling Defendants agree to perform Work and pay
Future Response Costs, as those terms are defined therein, and to receive certain reimbursement
for the costs of such performance in accordance with Paragraph 34 of the Consent Decree.
D.
The Trust is established solely for the purpose of holding, for the benefit of the
United States and Settling Defendants, the Trust Assets, which shall be used solely for payment of
the United States’ share of the costs of Work performed pursuant to the Consent Decree.
E.
The Trust Assets shall be held in trust solely for payment of the United States’ share
of the costs of Work performed pursuant to the Consent Decree as provided herein and may not be
used for any other purpose.
F.

The Trust is to be funded in the amount set forth in the Consent Decree.

G.

This Agreement and the Consent Decree govern the Trust.

H.
The Trust is created to comply with section 1.468B-1 et seq of the Treasury
Regulations (the “Treasury Regulations”) promulgated under Section 468B of the Internal
Revenue Code (the “Code”).
I.
The Trust Assets shall be invested in accordance with a conservative strategy that
emphasizes capital preservation while generating a reasonable level of income, as determined by
the Trustee after consultation with the United States, and as set forth in more detail in Paragraph
5.
J.
It is intended that no contractor, consultant, supplier, or other third party shall be
considered to be a third party beneficiary, either incidentally or directly, of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements contained herein and in the Consent Decree, the United States, the Settling
Defendants, and the Trustee hereby agree as follows:
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AGREEMENT
1. Definitions
Unless otherwise defined, all capitalized terms in this Agreement shall have the same
meaning as that in the Consent Decree.
1.1. “Agreement” shall mean this Trust Agreement.
1.2. “Beneficiaries” shall mean the United States and Settling Defendants.
1.3. “CERCLA” shall mean the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. §§ 9601-9675.
1.4. “Consent Decree” shall mean the Consent Decree that was signed by the United States,
Settling Defendants, and the Navajo Nation and lodged in the U.S. District Court for the
District of Arizona on January 17, 2017.
1.5. “Effective Date” shall mean the date upon which the approval of the Consent Decree is
recorded on the docket of the U.S. District Court for the District of Arizona.
1.6. “EPA” shall mean the U.S. Environmental Protection Agency.
1.7. “Grantor” shall mean the United States.
1.8. “Party” or “Parties” shall refer to Cyprus Amax Minerals Company, Western Nuclear,
Inc., and the United States individually or collectively, as appropriate.
1.9. “Trust Assets” shall mean the funding described in Paragraph 2.1.3 and such other
assets as may be acquired, earned, or held by the Trust before its termination.
1.10. “Trust Parties” shall mean, collectively, the Trust, the Trustee and its affiliates and their
shareholders, officers, directors, employees, members, managers, partners, and affiliated
entities.
1.11. “Trustee” shall mean the trustee selected pursuant to Paragraph 3.1 of this Agreement or
its successor.
2. The Trust
2.1. Creation and Transfer of Funding to the Trust.
2.1.1. Pursuant to the Consent Decree, the United States hereby establishes the Trust on
behalf of the Beneficiaries. The Trustee hereby accepts and agrees to hold the Trust
Assets for the benefit of the Beneficiaries solely for the purposes described in
Section 2.2 below, subject to the terms of this Agreement and the Consent Decree.
2

2.1.2. Within 10 business days of the Effective Date of the Consent Decree, the Trustee
shall establish and administer the U.S. Four Corners Uranium Mine Sites Trust
Account (“Trust Account”), which shall receive the Trust Assets. Subject to the
provisions below, the Trustee shall hold in trust and invest the Trust Assets solely in
Qualified Investments as provided in Section 5 of this Agreement. All earnings on
the funds held in the Trust shall be considered part of Trust Assets and reinvested
with other Trust Assets.
2.1.3. As soon as reasonably practicable after the establishment of the Trust Account
and receipt by the United States of payment instructions from the Trustee, the
United States shall transfer $335 million into the Trust Account pursuant to
Paragraph 34.a of the Consent Decree.
2.1.4. This Agreement shall not take effect, and Trustee shall not establish the Trust
Account, before the Effective Date of the Consent Decree.
2.2. Objectives and Purpose. The exclusive purposes and functions of the Trust are to hold,
for the benefit of the Beneficiaries, the Trust Assets, and to use those assets solely to pay
the United States’ share of the costs of Work performed pursuant to the Consent Decree.
The Trust Assets shall be held in trust solely for payment of the United States’ share of
the costs of Work performed pursuant to the Consent Decree as provided herein and may
not be used for any other purpose. The Trust Assets shall not be construed as property
of Settling Defendants or any of their subsidiaries, parents, affiliates, successors, or
assigns, or of its bankruptcy estate should any of those entities enter bankruptcy
proceedings.
2.3. Beneficiaries. Beneficial interest in the Trust shall be held by the United States and
Settling Defendants. Settling Defendants’ interest is held subject to a spendthrift trust.
Settling Defendants’ interest is limited to submitting claims for reimbursement as
provided herein and shall not be subject to voluntary or involuntary transfer; nor shall
such interest be subject to assignment or to attachment by or to the interference or
control of any creditor or assignee of Settling Defendants, or be taken or reached by any
legal or equitable process in satisfaction of any debt or liability of Settling Defendants,
and any attempted transfer or encumbrance of such interest prior to distribution shall be
void.
2.4. Safekeeping of Trust Assets. The Trust Assets shall be held in trust and segregated. The
Trustee is expressly prohibited from holding any or all of the Trust Assets in a common,
commingled or collective trust fund with the assets of any other entity.
2.5. Accounting. The Trustee shall maintain proper books, records, and accounts relating to
all transactions pertaining to the Trust, and the assets and liabilities of the Trust, in such
detail and for such period of time as may be necessary to enable the Trustee to make full

3

and proper accounting in accordance with Paragraphs 2.6 and 6.1 below and to comply
with applicable provisions of law and good accounting practices.
2.6. Irrevocability, Termination, and Final Disposition of Trust Assets. Subject to the right
of the Parties to modify this Agreement as provided in Paragraph 7.1, this Trust shall be
irrevocable and shall continue until terminated upon the earlier of (i) receipt by the
United States of the Trustee’s written notice of complete exhaustion of the Trust Assets,
or (ii) the issuance of the Certification of Work Completion pursuant to Paragraph 104
of the Consent Decree. Before the occurrence of either event, the Trustee shall set aside
sufficient funds from the Trust to facilitate the Trust’s orderly termination.
2.6.1. Termination upon exhaustion of Trust Assets. In the event that the Trust
Account’s balance reaches a level equal to the amount set aside to facilitate the
Trust’s orderly termination, the Trustee shall pay any remaining taxes, assessments,
and charges incident to the Trust’s management. Within 30 days of making such
payments, the Trustee shall deliver to the United States a final statement of account.
Upon making this final accounting, the Trust shall be deemed terminated and the
Trustee shall immediately close the account.
2.6.2. Termination upon issuance of Certification of Work Completion. In the event
that Settling Defendants notify Trustee of their receipt of a Certification of Work
Completion, the Trustee shall make any remaining payments required by the terms
of this Agreement and the Consent Decree, and pay any remaining taxes,
assessments, and charges incident to the Trust’s management. After making such
payments, the Trustee shall expeditiously liquidate and distribute any remaining
Trust Assets, including any current and accumulated income, to the Navajo Nation
Environmental Protection Agency for the sole purpose of performing response
actions under CERCLA, not inconsistent with the National Contingency Plan, at
abandoned uranium mines on Navajo Nation lands where no viable non-Federal
potentially responsible party has been identified. The Trustee must deliver a final
statement of account to the United States within 30 days of this final distribution or,
if no such distribution can be made, within 30 days of the last payment of any taxes,
assessments, and charges incident to the Trust’s management. Upon making this
final accounting, the Trust shall be deemed terminated and the Trustee shall
immediately close the account.
2.7. Document Retention and Disposition. The Trustee shall preserve and retain all material
non-identical copies of records or documents (including records or documents in
electronic form) now in its possession or control or which comes into its possession or
control that relate in any manner to the implementation of this Agreement or
management of the Trust. The United States and Settling Defendants shall have the right
upon 14 days prior written notice to the Trustee to inspect any such records or
documents. In the event of termination of the Trust, the Trustee shall give the United
States at least 180 days written notice before the destruction of any records or documents
4

of whatever kind, nature or description in any way relating to the Trust, in order to
enable the United States to prepare and implement a protocol for their preservation.
3. The Trustee
3.1. Generally. The United States has selected Le Petomane XXX, Inc., not individually but
solely in its representative capacity, as Trustee for an initial term of ten years to
administer the Trust and the Trust Account in accordance with this Agreement and the
Consent Decree. The Trustee’s powers are exercisable solely in a fiduciary capacity
consistent with, and in furtherance of, the objectives and purposes of the Trust, this
Agreement, and the Consent Decree. The Trustee shall have the authority to bind the
Trust, and any successor Trustee or successor or assign of the Trust, but shall for all
purposes hereunder be acting in its representative capacity as Trustee and not
individually. The Trustee shall not be required to take any action or omit to take any
action if, after the advice of counsel, the Trustee believes in good faith that such action
or omission is inconsistent with the Trustee’s fiduciary duties. The Trustee shall not be
considered a successor to the United States.
3.2. Powers of the Trustee. In administering the Trust, except as otherwise set forth in this
Agreement and the Consent Decree, the Trustee is authorized to perform any and all acts
necessary to accomplish the Trust’s objectives and purposes. Except as otherwise set
forth in this Agreement and the Consent Decree, the powers of the Trustee shall include,
without limitation, each of the following: (a) to receive, manage, invest, supervise, and
protect the Trust Assets and to pay obligations owed by the Trust from the Trust Assets
in accordance with this Agreement and the Consent Decree; (b) to engage the Investment
Manager and, as the Trustee deems necessary or appropriate, other persons to assist the
Trustee as to the responsibilities described herein; (c) to make disbursements of the Trust
Assets for the purposes contemplated in and in accordance with the terms of this
Agreement and the Consent Decree; and (d) to effect all actions and execute all
agreements, instruments, and other documents necessary to implement this Agreement
and the Consent Decree. The Trustee is authorized to execute and deliver all documents
on behalf of the Trust to accomplish the purposes of this Agreement and the Consent
Decree.
3.3. Retaining Other Professionals. In addition to the Investment Manager retained pursuant
to Section 5, the Trustee is authorized, following consultation with the United States, to
retain on behalf of the Trust and to pay such additional third parties as the Trustee may
deem necessary or appropriate to assist the Trustee in carrying out its powers and duties
under this Agreement and the Consent Decree, including, without limitation: (a) counsel
to the Trustee; (b) a public accounting firm to perform such reviews or audits of the
financial books and records of the Trust as may be appropriate in the Trustee’s
reasonable discretion, and to prepare and file any tax returns or informational returns for
the Trust as may be required; and (c) environmental consultants, brokers, contractors,
administrative assistants, and clerks. The Trustee shall pay all such persons from the
5

Trust Assets for services rendered and expenses incurred in accordance with a budget or
fee schedule approved by the United States. The budget or fee schedule may be revised
from time to time in the Trustee’s discretion, subject to the approval of the United States.
3.4. Limitation of the Trustee’s Authority. The Trustee is not, and shall not be, authorized to
engage in any trade or business as to the Trust Assets. The performance by the Trustee
of its duties under this Agreement shall not be considered to constitute engagement in a
trade or business.
3.5. Notice to the Parties Regarding Account Balances. The Trustee shall provide notice to
the United States and Settling Defendants within 30 days of the Trust Account’s balance
falling below $15 million, and shall include in that notice a projection of when the Trust
Account will be exhausted based on information provided to the Trustee under
Paragraphs 5.2.2 and 7.9. The Trustee shall provide notice to the United States and
Settling Defendants within 15 days of the Trust Account’s balance reaching the amount
that Trustee set aside to facilitate the Trust’s orderly termination under Paragraph 2.6.
3.6. Compensation. The Trustee shall be compensated from the Trust Assets for its services
rendered on behalf of the Trust and shall be reimbursed for its reasonable and necessary
costs and expenses in connection with the Trustee’s duties hereunder (including costs
and expenses incurred to convert the Trust into an environmental response trust pursuant
to Paragraphs 70.c and 70.d of the Consent Decree and Paragraph 4.2.2 of this
Agreement), upon submission of periodic billings. The Trustee’s compensation and
reimbursement shall be in accordance with a budget or fee schedule approved by the
United States. This budget or fee schedule may be revised from time to time, subject to
the approval of the United States.
3.7. Instructions and Requests from the United States. All instructions, directions, notices,
requests for information, and other communications from the United States to the
Trustee pursuant to this Agreement shall be made exclusively by the U.S. Department of
Justice.
3.8. Exculpation and Indemnification.
3.8.1. None of the Trust Parties shall be personally liable as to any claims, causes of
action, and other assertions of liability arising out of its actions or omissions of
action under this Agreement, the Consent Decree, or any order of court. The
foregoing shall not apply should the U.S. District Court for the District of Arizona,
by a final order, not reversed on appeal, find that the Trust Party committed fraud or
willful misconduct in relation to its duties or actions that are asserted as the basis for
liability.
3.8.2. The Trust shall indemnify, defend, and hold harmless the Trust Parties from and
against any and all claims, causes of action, liabilities, obligations, losses, costs,
6

judgments, damages or expenses (including attorneys’ fees and expenses) and any
other assertion of liability arising out of the Trust Parties’ negligent action or
omissions of action under this Agreement, to the fullest extent permitted by
applicable law, provided that such indemnification shall be limited to the Trust
Assets. Any judgment against any Trust Party and any costs of defense for a Trust
Party relating to its actions or omissions of action under this Agreement shall be
paid from and limited to funds from the Trust Assets without the Trust Party having
to first pay from its own funds for any personal liability or costs of defense, unless
the U.S. District Court for the District of Arizona, by a final order, not reversed on
appeal, finds that the Trust Party committed fraud or willful misconduct in relation
to its duties or actions that are asserted as the basis for liability. The Trustee shall
provide written notice to the United States and Settling Defendants at least 30 days
before charging against the Trust Assets pursuant to this Paragraph. The
indemnification provided in this Paragraph shall not take precedence over any
insurance coverage obtained by the Trust. This Paragraph is intended for the benefit
of the indemnified parties and not any insurer; nor is it intended to relieve any
insurer of its coverage obligations.
3.8.3. There shall be an irrebuttable presumption that any action taken or not taken with
the approval of the Court does not constitute a breach of the Trust Parties’ fiduciary
duties or an act of fraud or willful misconduct. For the avoidance of doubt, the term
“approval of the Court” shall not be construed to mean the Consent Decree or any
order approving the Consent Decree.
3.8.4. Nothing in this Paragraph 3.8, the Agreement, or the Consent Decree shall
preclude the United States or Settling Defendants from enforcing the terms of this
Agreement against the Trust Parties. The Trustee shall not be liable to the Navajo
Nation (including the Navajo Nation Environmental Protection Agency) for actions
or omissions of actions under this Agreement.
3.9. Conflicts. If conflicting demands are made upon Trustee, Trustee may hold any money
or documents subject to such conflicting demands until the rights of the Parties making
such conflicting demands are resolved by the Parties or determined by court action
pursuant to the Consent Decree.
3.10. Resignation and Removal of the Trustee.
3.10.1. Resignation. The Trustee shall have the right to resign at any time upon giving
120 days written notice of such resignation to the United States and Settling
Defendants, provided that if a suitable replacement is not found and approved by the
United States within 120 days after such written notice is provided, the Trustee’s
resignation shall not become effective and the Trustee shall continue to function in
its capacity as Trustee until a suitable replacement is found and approved by the
United States.
7

3.10.2. Removal. The United States shall have the right to remove the Trustee for cause
upon 120 days written notice to the Trustee and Settling Defendants.
3.10.3. Transfer of Trust Assets and Trust Documents. A Trustee that resigns or is
removed shall transfer and deliver to its successor the then-existing entire Trust
Assets in its possession, along with all Trust documents and records in its
possession. Upon such transfer, the Trustee shall be discharged as Trustee of the
Trust and shall have no further powers, discretion, rights, obligations, or duties with
reference to the Trust Assets, and all such powers, discretion, rights, obligations,
and duties of the resigning Trustee shall inure to and be binding upon such
successor Trustee. Notwithstanding the foregoing, nothing in this Paragraph shall
be deemed to discharge or release any Trustee that resigns or is removed from
liability for its acts or omissions.
3.11. Successor Trustee.
3.11.1. In the event the Trustee resigns or is removed, the United States shall select, in
writing, a successor within 120 days of receiving written notice of resignation or
within 120 days of removal.
3.11.2. Upon expiration of the Trustee’s initial term, the United States may extend that
Trustee’s term or select, in writing, a successor.
3.11.3. A successor Trustee shall have all the duties, rights, responsibilities, and powers
provided by the Trust.
3.11.4. A successor Trustee shall not be liable or responsible in any way for the acts or
omissions of any predecessor Trustee or for any loss or expense occasioned by any
act or omission of any such predecessor. A successor Trustee shall be liable for its
own acts or omissions in respect to property actually received or duties,
responsibilities, and powers assumed by it as the successor. Notwithstanding the
foregoing, nothing contained in this Paragraph shall be deemed to discharge or
release any predecessor Trustee from liability for its acts or omissions.
3.12. No Bond. Notwithstanding any state law to the contrary, the Trustee shall be exempt
from giving any bond or other security in any jurisdiction. The Trustee shall investigate
the possible purchase of an insurance policy to cover professional liability related to this
Agreement, and shall make recommendations to the United States regarding such
insurance. If authorized in writing by the United States to purchase insurance, the
Trustee shall promptly do so using Trust Assets.

8

4. Disbursements from the Trust
4.1. Requests for Disbursement.
4.1.1. From time to time, but no more than once every 30 calendar days, Settling
Defendants may submit to the Trustee a request for disbursement (a “Draw
Request”) of reimbursement for the United States’ share of Future Settling
Defendants Response Costs incurred in connection with Settling Defendants’
performance of the Work as required by the Consent Decree. Each Draw Request
must be accompanied by sufficient documentation to allow verification of the
accuracy of the costs claimed, proof of payment of all costs included in the Draw
Request, and a signed certification under penalty of law that such costs were
properly incurred and consistent with the National Contingency Plan, the Consent
Decree, and any Decision Documents as that term is defined in Paragraph 4 of the
Consent Decree (collectively, “Supporting Cost Documentation”).
4.1.2. Draw Requests shall be submitted using forms supplied by the Trustee and shall
include all information reasonably required to facilitate disbursement in accordance
with the Consent Decree and this Agreement, including the Inflation Start Date and
the occurrence of the Trigger.
4.1.3. Settling Defendants shall not submit Draw Requests, and the Trustee shall not
disburse funds, exceeding the maximum claims for reimbursement permitted by
Paragraph 34 of the Consent Decree.
4.2. Disbursement of Funds.
4.2.1. Within 15 business days of receiving a Draw Request and its Supporting Cost
Documentation, Trustee shall, after determining that such documents comply with
the requirements of Paragraph 4.1 of this Agreement and Paragraph 34 of the
Consent Decree, disburse the amount sought by the Draw Request to Settling
Defendants. Unless directed by the United States, the Trustee shall not conduct a
substantive review, including an assessment of consistency with the National
Contingency Plan. If the Trustee determines that such documents do not comply
with these requirements or identifies any error in the documents, the Trustee shall
notify Settling Defendants of the deficiency or error. If the Trustee and Settling
Defendants cannot rectify the deficiency or error within the 15 business-day period,
the Trustee shall disburse only an amount equal to the undisputed portion of the
Draw Request, and the Parties shall seek to resolve the dispute over the remaining
portion pursuant to the procedures set forth in Paragraph 34.d of the Consent
Decree.
4.2.2. In the event of a Work Takeover by EPA pursuant to Paragraph 70 of the Consent
Decree, Trustee shall follow any instructions from the U.S. Department of Justice
9

regarding (a) disbursement of Trust Assets, and (b) necessary steps to convert the
Trust into an environmental response trust capable of performing the Work pursuant
to the Consent Decree. In the event that Work Takeover terminates and Settling
Defendants resume performance of the Work, the Trustee shall, subject to Paragraph
4.5 of this Agreement, resume disbursement of funds pursuant to Paragraphs 4.1 and
4.2.1 of this Agreement.
4.3. Disputed Costs. Upon the receipt of any Settling Defendants Costs Statement required
by Paragraph 34.b(4) of the Consent Decree, the United States shall have 60 days to
review and approve that statement. Within 60 days of receipt of the Settling Defendants
Costs Statement, the United States may object in writing, and that objection shall be sent
to Settling Defendants and the Trustee pursuant to Paragraph 7.8. If, upon resolution of
the objection pursuant to Paragraph 34.e of the Consent Decree, the United States
prevails in whole or in part upon any objection to any costs described in the Settling
Defendants Costs Statement, the Trustee shall reduce future disbursement(s) pursuant to
Paragraph 4.5.
4.4. Duty to Assist in Dispute Resolution. Paragraph 34.d of the Consent Decree identifies
procedures to be followed in the event of a dispute regarding Settling Defendants
Response Costs. In the event of a dispute, the Trustee shall provide assistance to the
United States and Settling Defendants in the dispute-resolution process as requested,
including production of information, documents, and testimony relating to the Trustee’s
activities under this Agreement.
4.5. Notice to Trustee and Reduction in Disbursements. The Parties shall promptly notify the
Trustee of any reduction in disbursement determined pursuant to Paragraphs 34.b(9) or
34.e of the Consent Decree. The Trustee shall reduce one or more subsequent
disbursements, as necessary, by that amount.
4.6. Liens. Notwithstanding anything to the contrary in this Agreement, the Trustee and the
United States shall have a first-priority lien on and security interest in the Trust Assets,
to secure the payment of all amounts owed to or accrued or reserved on account of the
Trust or to be retained by the Trustee hereunder or otherwise due hereunder. The
Trustee agrees to take appropriate actions and execute appropriate documents so that the
Trustee’s and the United States’ liens and security are perfected as of the Effective Date.
5. Investment of Trust Assets
5.1. Generally. The Trust Assets shall be invested in accordance with a conservative strategy
that emphasizes capital preservation while generating a reasonable level of income, as
determined by the Trustee after consultation with the United States. To implement this
strategy, and subject to those constraints, the initial objective shall be to attain at least a
3% average annual return. Notwithstanding this initial objective, the Parties recognize
and agree that the Trustee shall have discretion to adapt this target to changing market
conditions (after consultation with the United States), that the Trustee does not guarantee
10

investment performance, and that the Trustee shall not be subject to liability solely as a
result of the average annual returns not achieving the 3% target.
5.2. Retaining the Investment Manager. The Trustee shall retain a professional investment
manager (“Investment Manager”) to manage all investments of the Trust Assets in
Qualified Investments. The Investment Manager shall be selected by the Trustee after
consultation with the United States and shall be compensated from the Trust Assets.
5.2.1. The Investment Manager shall be responsible for all investment decisions regarding
the Trust Assets, including (a) selection of individual investments; (b) timing of the
purchase and sale of individual investments; (c) selection of any brokerage firms and
other institutions to be used in carrying out the investment activities affecting Trust
Assets; and (d) selection of the manner and form in which investments are to be
purchased, held, and transferred.
5.2.2. The Investment Manager shall recommend, for the Trustee’s approval, the initial
allocation of Trust Assets among Qualified Investments. Any material changes to the
allocation shall also be approved by the Trustee.
5.2.3. Within 30 days of notifying the Parties of the selection of the Investment
Manager, the Trustee shall enter into a contract with the designated Investment
Manager (“Investment Management Agreement”). The Investment Management
Agreement shall identify the duties of the Investment Manager and provide that the
Investment Manager will be compensated from the Trust Assets at the rate identified
in that agreement, and shall require the Investment Manager to adhere to the
parameters identified in this Section 5 in managing investment of the Trust Assets.
The Investment Management Agreement shall require the Investment Manager to
submit to the Trustee quarterly reports identifying, among other things, the balance
of the Trust Assets and those assets’ performance in comparison to appropriate
investment benchmarks. The Investment Management Agreement shall also require
the Investment Manager to review the Trust Assets each quarter and give written
notice to the Trustee and the United States if it appears that the Trust Assets will be
insufficient to satisfy anticipated payment obligations of the United States under the
Consent Decree during the next 12 months based on projected cost estimates
submitted by Settling Defendants under Paragraph 7.9.
5.2.4. The Investment Management Agreement shall provide that it may be terminated
by the Trustee at any time upon 30 days written notice. The Trustee shall exercise
this termination provision only after consultation with the United States.
5.3. Qualified Investments. Qualified Investments shall mean any of the following
investments: (a) cash and cash equivalent investments defined as dollar-denominated
demand deposits, time deposits, certificates of deposit, or other obligations (including
acceptances) of any bank whose deposits are federally insured and having (1) capital and
surplus in excess of $250 million and (2) a short-term commercial paper rating from
11

Standard & Poor’s that is at least A-1 or the equivalent thereof or a short-term
commercial paper rating from Moody’s that is at least P-1 or the equivalent; (b) U.S.
Treasury bills and notes; (c) A, AA, or AAA corporate bonds (with the rating awarded
by at least two of the three major rating agencies (Standard & Poor’s, Moody’s, or
Fitch)); (d) U.S. Treasury futures contracts; (e) AA or AAA municipal bonds; (f) openended mutual funds, short-term investment funds, or commingled funds owning only
assets described in (a) through (e); and (g) such other categories of investments as may
be approved by the United States in writing; provided, however, that investment in in
U.S. Treasury futures contracts may not exceed 10% of the portfolio. U.S. Treasury
futures investment will be measured as U.S. Treasury futures notional divided by total
portfolio market value. Any such investments shall be made consistently with the
Uniform Prudent Investor Act. Should any ambiguities arise as to whether an instrument
is or continues to be a Qualified Instrument, the Trustee shall, after consultation with the
Investment Manager, resolve that ambiguity consistent with the terms and purposes of
this Agreement and the Consent Decree.
5.4. Investment Company Act. Nothing in this Section 5 shall be construed as authorizing
the Trustee to cause the Trust to carry on any business or to divide the gains therefrom,
including without limitation, the business of an investment company, a company
“controlled” by an “investment company,” required to register as such under the
Investment Company Act of 1940, as amended. The sole purpose of this Section is to
authorize the investment of the funds in the Trust or any portions thereof as may be
reasonably prudent pending use of the proceeds for the purposes of the Trust.
6. Financial Reports and Taxes
6.1. Financial Reports. As soon as practicable after the end of each calendar quarter
beginning with the quarter ended after the Trust’s receipt of the payment required of the
United States pursuant to Paragraph 34.a of the Consent Decree, and ending as soon as
practicable upon termination of the Trust, the Trustee shall submit to the United States
and Settling Defendants a written report that includes (a) financial statements of the
Trust at the end of such calendar quarter or period and the receipts and disbursements of
the Trust for such calendar quarter or period; and (b) a description of any action taken by
the Trustee in the performance of its duties which, as determined by outside counsel,
accountants, or other professional advisors, materially and adversely affects the Trust
and of which notice has not previously been given to the United States and Settling
Defendants. Further, by February 28, 2018, and each subsequent calendar year the
Trustee shall submit to the United States and Settling Defendants an annual report that
provides the above-described information for the preceding calendar year or, if the report
is a final report after termination, for the period from the most recent annual report until
the termination of the Trust.
6.2. Qualified Settlement Fund. For federal income tax purposes, the Trust is intended to be
a qualified settlement fund and the Grantor will elect to treat the Trust as a grantor trust
12

pursuant to section 468B of the Code and related Treasury Regulations. The Parties and
the Trustee agree to take all legally available steps necessary to assure such treatment.
6.2.1. Tax Reporting. The Trustee is intended to be the “administrator” of the Trust
within the meaning of Treasury Regulation sections 1.468B-1(k)(2)(i) and 1.468B2(k)(3). The Trustee shall be responsible for preparing and filing all applicable
income tax returns or other income tax reporting requirements to comply with the
requirements of Code sections 468B and 671 and related Treasury Regulations.
6.2.2. Grantor Trust Election. As the sole transferor to the Trust, the Grantor agrees to
make the election (grantor trust election) under Treasury Regulation section 1.468B1(k) to treat the Trust as a trust all of which is owned by the Grantor (solely for tax
purposes) under Code section 671 and related Treasury Regulations. To effect such
election, the Grantor agrees to timely provide the Trustee with the required
transferor election statement pursuant to Treasury Regulation section 1.468B1(k)(2). The Trustee shall timely file a Form 1041 on behalf of the Trust with the
Grantor’s election statement attached. The Form 1041 will be filed for the taxable
year in which the Trust satisfies the requirements of Treasury Regulation section
1.468B-1(c).
6.2.3. Environmental Remediation Trust. In the event the Trust does not meet the
requirements under Treasury Regulation section 1.468B-1 to be a qualified
settlement fund, the Trust is intended to qualify as an environmental remediation
trust under Treasury Regulation section 301.7701-4(e).
7. Miscellaneous Provisions
7.1. Modifications. Material modifications of this Agreement shall be in writing, signed by
the Parties and the Trustee, and effective upon approval by the U.S. District Court for
the District of Arizona. Non-material modifications shall be in writing and effective
when signed by duly authorized representatives of the Parties and the Trustee.
7.2. Modification and Termination in Work Takeover. Paragraphs 70.c and 70.d of the
Consent Decree and Paragraph 4.2.2 of this Agreement, which authorize conversion of
the Trust into an environmental response trust and may entail modification of this
Agreement or termination of the Trust and this Agreement and creation of a successor
Trust, shall supersede any contrary provisions in this Agreement regarding modification
or termination. Any modifications to this Agreement or any new trust agreement created
pursuant to Paragraphs 70.c and 70.d of the Consent Decree and Paragraph 4.2.2 of this
Agreement shall not require the agreement or signature of the Trustee or Settling
Defendants. In making such modification or creating such new agreement, the United
States shall consult with the Trustee. Notwithstanding Paragraph 3.10.2 of this
Agreement, the United States shall have absolute discretion to remove the Trustee in the
event of a Work Takeover pursuant to Paragraph 70 of the Consent Decree.
13

7.3. Relationship to Trust. None of Settling Defendants or the Navajo Nation shall be
deemed to be an owner, operator, trustee, partner, agent, shareholder, officer, or director
of the Trust solely on account of this Agreement or the Consent Decree. No title or
interest in the Trust Assets, its funds or any income accruing therefrom or thereon, or its
other property shall vest in Settling Defendants or the Navajo Nation during the
continuance of the Trust. Settling Defendants and the Navajo Nation shall have no right,
power, or authority to anticipate any income from the Trust Assets, payments into the
Trust Assets, or any payments from the Trust Assets; or to alienate, convey, transfer, or
dispose of the same or any interest therein or any part thereof in advance of payment.
None of the principal or income of the Trust Assets, payments into the Trust Assets, nor
any payments from the Trust Assets shall be involuntarily alienated by Settling
Defendants or the Navajo Nation or be subject to attachment, execution, or levy, or taken
upon any process for any debts that Settling Defendants or the Navajo Nation may have
contracted, or in satisfaction of any demands or obligations that Settling Defendants or
Navajo Nation may have incurred. The Trust Assets shall not be construed as property
of Settling Defendants or the Navajo Nation, or of any entity’s bankruptcy estate should
that entity enter bankruptcy proceedings.
7.3.1. The Navajo Nation, including the Navajo Nation Environmental Protection
Agency, shall have no right to approve or consult on any Trustee actions or
decisions relating to the Trust; nor shall the Navajo Nation have the right to review
or access any documents relating to the implementation of this Agreement, or
management or operation of the Trust.
7.3.2. Except as provided in Paragraph 6.2.2 and solely for purposes of tax law, the
United States shall not be deemed to be an owner, operator, trustee, partner, agent,
shareholder, officer, or director of the Trust solely on account of this Agreement or
the Consent Decree.
7.4. Consent Decree Controls. To the extent reasonably possible, the provisions of this
Agreement shall be interpreted in a manner consistent with the Consent Decree. In the
event of an irreconcilable conflict between this Agreement and the Consent Decree, the
Consent Decree shall control.
7.5. Compliance with Laws. Any and all distributions of Trust Assets shall be in compliance
with all applicable laws.
7.6. Choice of Law. The situs of the Trust shall be in Arizona. The rights, duties, and
obligations arising under this Agreement shall be governed by, and construed and
enforced in accordance with, applicable federal law. Where federal law is not
applicable, the rights, duties, and obligations arising under this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the State of
Arizona, without regard to its choice of law rules.

14

7.7. Forum for Disputes. If a dispute arises over the terms or administration of the Trust, the
Parties and the Trustee shall attempt to resolve the dispute among themselves or with the
assistance of non-binding mediation. If the dispute cannot be resolved informally, the
United States, Settling Defendants, or the Trustee may seek to have the dispute resolved
by the U.S. District Court for the District of Arizona. This provision does not confer
upon any court the right to alter or amend this Agreement’s terms or conditions.
7.8. Notices. All notices required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been duly received 5 days after being mailed by
registered or certified mail, return receipt requested, or 1 business day after being sent
overnight by a nationally recognized courier with established tracking capability,
addressed to each Party and the Trustee as follows:

If to Settling Defendants:
Cyprus Amax Minerals Company and Western Nuclear, Inc.
333 North Central Avenue
Phoenix, Arizona 85004
Attention: William E. Cobb
and:
Cyprus Amax Minerals Company and Western Nuclear, Inc.
333 North Central Avenue
Phoenix, Arizona 85004
Attention: Treasurer
with copy to:
Vinson & Elkins, LLP
2200 Pennsylvania Ave. NW, Suite 500 West
Washington, DC 20037
Attention: Kevin A. Gaynor, Esq.
If to the United States:
Chief
Environmental Defense Section
Environment & Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611
Re: DJ # 90-11-6-20322

15

If to Trustee:
Le Petomane XXX, Inc., not individually but solely as Trustee of the
U.S. Four Corners Uranium Mine Sites Trust
35 East Wacker Drive - Suite 1550
Chicago, Illinois 60601
with copy to:
Foley & Lardner LLP
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attn: Tanya C. O’Neill
Each Party and the Trustee shall have the right to designate new recipients of any notice
required to be given under this Agreement by providing notice of such change to the
other Parties using the process set forth in this Paragraph.
7.9. Submission of Annual Projected Cost Estimates. Within 15 days of the conclusion of
the annual planning process set forth in Paragraph 11.d of the Consent Decree, Settling
Defendants shall submit to the Trustee the projected cost estimates for the following
year’s Work. Further, Settling Defendants shall cooperate with and respond to the
Trustee’s reasonable requests for information, including projections of future
reimbursement requests, that would assist the Trustee in managing the Trust’s liquidity.
7.10. Notice of Receipt of Certification of Work Completion. Within 15 days of receiving a
Certification of Work Completion pursuant to Paragraph 104 of the Consent Decree,
Settling Defendants shall notify Trustee and the United States of their receipt of the
certification.
7.11. No Recourse to Beneficiary. In no event shall the Beneficiaries have any responsibility
to pay any expenses, fees, or other obligations of the Trust, and in no event shall the
Trustee, the Investment Manager, or any other person employed or contracted to perform
services on behalf of the Trust have recourse to the Beneficiaries therefor.
7.12. Uniform Custodial Trust Act Not Applicable. This Agreement shall not be subject to
any provision of the Uniform Custodial Trust Act as adopted by any state, now or in the
future.
7.13. Headings. The section headings contained in this Agreement are solely for convenience
of reference and shall not affect the meaning or interpretation of this Agreement or any
of its terms or provisions.
7.14. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of
the heirs, representatives, successors and assigns of each of the Parties and Trustee.

16

7.15. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be an original and all of which combined shall constitute one and the
same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

17

THE UNDERSIGNED ENTER 1NT0 THIS AGREEMENT:

FOR CYPRUS AMAX MINERALS COMPANY:

By:
Name: ~~tr s>~✓~/~~m
l~~~t/~iCAG ~dlril/la~L /'~~~
ItS: ~~i~!/~

Date: ~~~~~

FOR WESTERN NUCLEAR,INC.:

By:
i"
Name: ~lG~ S7~~/dam
ItS: .U~.pl/T%

L G6li~/~'.`L -/`~G~
~~~f~~/1

Date: 3~3~/~

Signature page for Trust Agreement(Appendix F ofthe Consent Decree in United States and the
Navajo Nation v. Cyprus Amax Minerals Company and Western Nuclear, Inc., No. 2:17-cv00140-MHB (D. Ariz.))

Signature Page 1

FOR THE UNITED STATES OF AMERICA:

By:_

/

/

Name: Bruce S. Gelber
Its:
Date:

Deputy Assistant Attorney General
~'-S ~
'

Signature page for Trust Agreement(Appendix F ofthe Consent Decree in United States and the
Navajo Nation v. Cyprus Amax Minerals Company and Western Nuclear, Inc., No. 2:17-cv00140-MHB (D. Ariz.))

Signature Page 2

FOR THE TRUSTEE:

~~~~
not ina~viauaiiy, nut
e canacity as President of

Signature page for Trust Agreement (Appendi;c F of the Consent Decree in United States and the
Navajo Nation v. Cyprus Amax Mrnercrls Co~~zpccvry arrcl Western Nuclear, Inc., No. 2:17-cv00140-MHB (D. Ariz.))

Signature Page 3