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Navajo Nation v. Cyprus Amax Minerals Co.

United States District Court, D. Arizona

May 22, 2017

Navajo Nation, Plaintiff,
v.
Cyprus Amax Minerals Company; and Western Nuclear, Inc., Defendants.

          FOR THE UNITED STATES OF AMERICA: John C. Cruden Assistant Attorney General U.S. Department of Justice Katherine M. Kane Erica H. Pencak U.S. Department of Justice Dustin J. Maghamfar Sue Chen U.S. Department of Justice.

          FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY: Enrique Manzanilla Superfund Division Director, Region IX U.S. Environmental Protection Agency Sarah E. Mueller Assistant Regional Counsel, Region IX U.S. Environmental Protection Agency.

          FOR THE NAVAJO NATION: Ethel Billie Branch Attorney General Navajo Nation Department of Justice.

          FOR CYPRUS AMAX MINERALS COMPANY: L. Richards McMillan, II Senior Vice President.

          FOR WESTERN NUCLEAR, INC.: L. Richards McMillan, II Senior Vice President.

          ORDER

          DOUGLAS L. RAYES UNITED STATES DISTRICT JUDGE

         The Navajo Nation filed an unopposed motion to enter the parties' proposed consent decree. (Doc. 23.) The United States filed a similar motion in its related suit against Defendants. (Doc. 18, No. CV-17-00140-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

         I. BACKGROUND ............................................................................................................ 1

         II. JURISDICTION ............................................................................................................. 3

         III. PARTIES BOUND ......................................................................................................... 4

         IV. DEFINITIONS ............................................................................................................... 4

         V. GENERAL PROVISIONS ........................................................................................... 11

         VI. PERFORMANCE OF THE WORK ............................................................................ 13

         VII. REMEDY REVIEW ..................................................................................................... 19

         VIII. PROPERTY REQUIREMENTS .................................................................................. 20

         IX. FINANCIAL ASSURANCE ........................................................................................ 22

         X. PAYMENTS FOR RESPONSE COSTS ..................................................................... 29

         XI. INDEMNIFICATION AND INSURANCE ................................................................ 41

         XII. FORCE MAJEURE ...................................................................................................... 43

         XIII. DISPUTE RESOLUTION ........................................................................................... 45

         XIV. STIPULATED PENALTIES ....................................................................................... 49

         XV. COVENANTS BY THE UNITED STATES ............................................................... 54

         XVI. COVENANTS BY THE NAVAJO NATION ............................................................. 58

         XVII. COVENANTS BY SETTLING DEFENDANTS AND SFAS .................................... 61

         XVIII. EFFECT OF SETTLEMENT; CONTRIBUTION ....................................................... 65

         XIX. ACCESS TO INFORMATION .................................................................................... 67

         XX. RETENTION OF RECORDS ...................................................................................... 69

         XXI. NOTICES AND SUBMISSIONS ................................................................................ 71

         XXII. RETENTION OF JURISDICTION ............................................................................. 75

         XXIII. APPENDICES .............................................................................................................. 75

         XXIV. MODIFICATION ......................................................................................................... 76

         XXV. NOTICE OF COMPLETION OF WORK ................................................................... 76

         XXVI. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT ................................ 77

         XXVII. SIGNATORIES/SERVICE .......................................................................................... 77

         XXVIII. FINAL JUDGMENT .................................................................................................... 78

         I. BACKGROUND

         A. The United States of America (“United States”), on behalf of the Administrator of the United States Environmental Protection Agency (“EPA”), filed a complaint in this matter pursuant to Sections 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9606 and 9607, against Cyprus Amax Minerals Company (“Cyprus Amax”) and Western Nuclear, Inc. (“Western Nuclear”) (collectively, “Settling Defendants”).

         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 complaint against the Settling Defendants, each seek, inter alia: (1) reimbursement of Past and Future Response Costs incurred, in the case of the United States, by EPA and other federal agencies, and in the case of the Navajo Nation, by the Navajo Nation, including the Navajo Nation EPA (“NNEPA”) and the Navajo Nation DOJ (“NNDOJ”), for response actions at the abandoned uranium mine sites and one transfer station in Arizona, New Mexico, and Utah, located on Navajo Nation lands, and listed in Appendix A (“Mine Sites”), together with accrued interest; and (2) performance of response actions by Settling Defendants at the Mine Sites consistent with the National Contingency Plan, 40 C.F.R. Part 300 (“NCP”).

         D. Cyprus Amax acknowledges that it is the successor in interest to Climax Uranium Company and has a contractual obligation to indemnify Chemetall Foote Corporation, the corporate successor to Vanadium Corporation of America and its affiliates. Cyprus Amax further acknowledges that Climax Uranium Company, Vanadium Corporation of America, or another corporate affiliate of Cyprus Amax was historically involved in uranium mining at each of the abandoned uranium mines listed in Appendix A except for the Ruby Mines Site and the Proximate Mine Sites. Western Nuclear acknowledges that it was historically involved in uranium mining at the Ruby Mines Site identified in Appendix A.

         E. Western Nuclear recently entered into an Administrative Settlement Agreement and Order on Consent for Engineering Evaluation and Cost Analysis in In the Matter of: Ruby Mines Site, U.S. EPA Region 9, CERCLA Docket No. 2016-10 and will perform that work separately from this Consent Decree (“CD”). The Parties agree that all future work at the Ruby Mines Site after the Engineering Evaluation/Cost Analysis (“EE/CA”) is completed will be performed pursuant to the terms of this Consent Decree.

         F. Pursuant to the settlement of the Tronox Incorporated bankruptcy proceeding, In re Tronox Inc., No. 09-10156 (ALG) (Bkr. S.D.N.Y.), the United States and the Navajo Nation settled, resolved, and recovered funds from Tronox Incorporated, Kerr-McGee Corporation, and related subsidiaries of Anadarko Petroleum Corporation to address certain abandoned uranium mines located on Navajo Nation lands, including the 23 abandoned uranium mines listed and identified in Appendix B. Settling Defendants acknowledge that Vanadium Corporation of America was historically involved in uranium mining at each of the abandoned uranium mines identified in Appendix B. This CD does not require Settling Defendants to perform any work at any of the abandoned uranium mines identified in Appendix B.

         G. In accordance with Section 122(j)(1) of CERCLA, 42 U.S.C. § 9622(j)(1), EPA notified the Navajo Nation Division of Natural Resources, Navajo Nation Department of Justice, U.S. Department of the Interior, New Mexico Office of Natural Resources Trustee, Arizona Natural Resources Trustee, State of Utah Lead Trustee, and State of Utah Co-Trustee on December 13, 2016, of negotiations with the Settling Defendants regarding the release of hazardous substances that may have resulted in injury to the natural resources under federal trusteeship and encouraged the trustee(s) to participate in the negotiation of this CD.

         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 threatened release of hazardous substances occurred while they operated any Mine Site, nor do they acknowledge that the release or threatened release of hazardous substance(s) at or from any of the Mine Sites constitutes an imminent and substantial endangerment to the public health or welfare or the environment. Settling Federal Agencies do not admit any liability arising out of the transactions or occurrences as may be alleged in any claims by the Navajo Nation or counterclaims by Settling Defendants.

         I. Based on the information presently available to EPA and the Navajo Nation, EPA and the Navajo Nation believe that the Work at the Mine Sites will be promptly conducted by Settling Defendants if conducted in accordance with this CD and its appendices.

         J. Solely for the purposes of Section 113(j) of CERCLA, 42 U.S.C. § 9613(j), the Work to be performed by Settling Defendants shall constitute a response action taken or ordered by the President for which judicial review shall be limited to the administrative record.

         K. The Parties recognize, and the Court by entering this CD finds, that this CD has been negotiated by the Parties in good faith and implementation of this CD will expedite the cleanup of the Mine Sites and will avoid prolonged and complicated litigation between the Parties, and that this CD is fair, reasonable, and in the public interest.

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

         II. JURISDICTION

         1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331, 1367, and 1345, and 42 U.S.C. §§ 9606, 9607, and 9613(b). This Court also has personal jurisdiction over the Parties. Solely for the purposes of this CD and the underlying complaints, the Parties waive all objections and defenses that they may have to jurisdiction of the Court or to venue in this District. The Parties shall not challenge the terms of this CD or this Court's jurisdiction to enter and enforce this CD.

         III. PARTIES BOUND

         2. This CD is binding upon the United States and the Navajo Nation and upon Settling Defendants and their successors and assigns. Any change in ownership or corporate or other legal status of Settling Defendants including, but not limited to, any transfer of assets or real or personal property shall in no way alter Settling Defendants' responsibilities under this CD.

         3. Settling Defendants shall provide a copy of this CD to each contractor hired to perform the Work, and shall condition all contracts entered into hereunder upon performance of the Work in conformity with the terms of this CD. Settling Defendants or their contractors shall provide written notice of the CD to all subcontractors hired to perform any portion of the Work. Settling Defendants shall nonetheless be responsible for ensuring that their contractors and subcontractors perform the Work in accordance with the terms of this CD. With regard to the activities undertaken pursuant to this CD, each contractor and subcontractor shall be deemed to be in a contractual relationship with Settling Defendants within the meaning of Section 107(b)(3) of CERCLA, 42 U.S.C. § 9607(b)(3).

         IV. DEFINITIONS

         4. Unless otherwise expressly provided in this CD, terms used in this CD that are defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning assigned to them in CERCLA or in such regulations. Whenever terms listed below are used in this CD or its appendices, the following definitions shall apply solely for purposes of this CD:

         “Affected Property” shall mean all real property at the Mine Sites and any other real property where EPA determines, at any time, after providing a reasonable opportunity for review and comment by NNEPA, that access, land, water, or other resource use restrictions are needed to implement the Work.

         “CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, and as subsequently amended.

         “Consent Decree” or “CD” shall mean this consent decree and all appendices attached hereto (listed in Section XXIII). In the event of conflict between this CD and any appendix, this CD shall control.

         “Day” shall mean a calendar day. In computing any period of time under this CD, where the last day would fall on a Saturday, Sunday, or federal or Navajo Nation holiday, the period shall run until the close of business of the next working day.

         “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.

         “First Component of the Work” shall mean removal site evaluations for all of the Mine Sites and EE/CAs for those Mine Sites or groups of Mine Sites where EPA determines that an EE/CA shall be conducted.

         “Cyprus Amax/Western Nuclear Sites Special Account” shall mean the special account, within the EPA Hazardous Substance Superfund, established for the Mine Sites by EPA pursuant to Section 122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3).

         “Future Settling Defendants Response Costs” shall mean (i) those necessary costs of response incurred by Settling Defendants after the Effective Date that are consistent with the National Contingency Plan, as defined in 42 U.S.C. § 9601(25), and that arise out of or in connection with the Work, and (ii) any Future Response Costs paid by Settling Defendants.

         “Future Response Costs” shall mean all costs, including, but not limited to, direct and indirect costs, that the United States or the Navajo Nation incurs in reviewing or developing deliverables submitted pursuant to this CD, in overseeing implementation of the Work, or otherwise implementing, overseeing, or enforcing this CD, including, but not limited to, payroll costs, contractor costs, travel costs, laboratory costs, the costs incurred pursuant to ¶ 12 (Emergencies and Releases), ¶ 13 (Community Involvement) (including the costs of any technical assistance grant under Section 117(e) of CERCLA, 42 U.S.C. § 9617(e)), ¶ 26 (Access to Financial Assurance), ¶ 70 (Work Takeover), Section VII (Remedy Review), Section VIII (Property Requirements) (including the cost of attorney time and any monies paid to secure or enforce access or land, water, or other resource use restrictions, including, but not limited to, the amount of just compensation), and Section XIII (Dispute Resolution), and all litigation costs. Future Response Costs shall also include all Interim Response Costs, and all Interest on those Past Response Costs and Navajo Nation Past Response Costs that Settling Defendants have agreed to pay under this CD that has accrued pursuant to 42 U.S.C. § 9607(a) during the period from June 15, 2016 to the Effective Date, in the case of the United States, and from June 30, 2016 to the Effective Date, in the case of the Navajo Nation.

         “Inflation Start Date” shall mean the earlier of either (1) the date EPA selects at least one response action for one or more of the mines included in Attachment A of the Statement of Work, after completion of an EE/CA or Remedial Investigation pursuant to the Statement of Work, or (2) January 1, 2023. For purposes of determining the Inflation Start Date, Interim Actions required pursuant to Section 7 of the Statement of Work do not constitute a “response action” that triggers the Inflation Start Date.

         “Institutional Controls” or “ICs” shall mean Proprietary Controls and applicable Navajo, state, or local laws, regulations, ordinances, zoning restrictions, or other governmental controls or notices that: (a) limit land, water, or other resource use to minimize the potential for human exposure to Waste Material at or in connection with the Mine Sites; (b) limit land, water, or other resource use to implement, ensure noninterference with, or ensure the protectiveness of the response action(s); and/or (c) provide information intended to modify or guide human behavior at or in connection with the Mine Sites.

         “Interim Response Costs” shall mean all costs, including, but not limited to, direct and indirect costs, (a) paid by the United States or the Navajo Nation in connection with the Mine Sites between June 15, 2016 or June 30, 2016, respectively, and the Effective Date, or (b) incurred prior to the Effective Date but paid after that date.

         “Interest” shall mean interest at the rate specified for interest on investments of the EPA Hazardous Substance Superfund, compounded annually on October 1 of each year, in accordance with 42 U.S.C. § 9607(a). The applicable rate of interest shall be the rate in effect at the time the interest accrues. The rate of interest is subject to change on October 1 of each year. Rates are available online at http://www2.epa.gov/superfund/superfund-interest-rates.

         “Mine Site” shall mean one of, and “Mine Sites” shall mean some or all of, the abandoned uranium mine sites and one transfer station in Arizona, New Mexico, and Utah, located on Navajo Nation lands, that are enumerated and described in Appendix A, and other areas where contamination associated with those abandoned uranium mine sites and one transfer station has been deposited, stored, disposed of, placed, or otherwise come to be located. The Parties agree that they may amend Appendix A to add or delete Mine Sites by mutual consent.

         “Mining” shall include reconnaissance, drilling, exploring, investigating, surveying, or other activity related to locating, extracting, transporting, or processing ore or minerals from the ground as well as the sale of ores or minerals.

         “National Contingency Plan” or “NCP” shall mean the National Oil and Hazardous Substances Pollution Contingency Plan promulgated pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto.

         “Navajo Nation” shall mean the Navajo Nation and each department, agency, and instrumentality of the Navajo Nation. The term shall not include Navajo Nation enterprises.

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

         “Navajo Nation Past Response Costs” or “NN Past Response Costs” shall mean all costs, including, but not limited to, direct and indirect costs, that the Navajo Nation paid at or in connection with the Mine Sites through June 30, 2016, plus Interest on all such costs that has accrued pursuant to 42 U.S.C. § 9607(a) through such date.

         “NNCERCLA” shall mean the Navajo Nation Comprehensive Environmental Response, Compensation, and Liability Act, 4 N. N.C. §§ 2102-2805, and as subsequently amended.

         “NNCERCLA Cyprus Amax/Western Nuclear Sites Special Account” shall mean the special account that is established for the Mine Sites by NNEPA pursuant to the NNCERCLA, 4 N. N.C. § 2504(A)(5), and that is within the existing Hazardous Substance Fund established under the NNCERCLA, 4 N. N.C. § 2701.

         “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.

         “Notice of Completion of Work” shall mean the notice issued by EPA pursuant to Section XXV after EPA determines that Settling Defendants have completed all Work required by this CD and SOW, except for Payment of Future Response Costs and Record Retention.

         “Operation and Maintenance” or “O&M” shall mean all activities required to operate, maintain, and monitor the effectiveness of the response actions undertaken pursuant to the Statement of Work (“SOW”), as specified in the SOW or any EPA-approved O&M Plan.

         “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.

         “Past Response Costs” shall mean all costs, including, but not limited to, direct and indirect costs, that the United States paid at or in connection with the Mine Sites through June 15, 2016, plus Interest on all such costs that has accrued pursuant to 42 U.S.C. § 9607(a) through such date.

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

         “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.

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

         “Post-Removal Site Control” shall mean actions necessary to ensure the effectiveness and integrity of any removal action to be performed at a Mine Site or Mine Sites pursuant to this CD and the SOW, consistent with Sections 300.415(1) and 300.5 of the NCP and “Policy on Management of Post-Removal Site Control” (OSWER Directive No. 9360.2-02, Dec. 3, 1990).

         “Proprietary Controls” shall mean easements or covenants running with the land that (a) limit land, water, or other resource use and/or provide access rights and (b) are created pursuant to common law or statutory law by an instrument that is recorded in the appropriate land records office.

         “Proximate Mine Site” shall mean one of, and “Proximate Mine Sites” shall mean some or all of, the seventeen abandoned uranium mine sites in Arizona, and New Mexico, and located on Navajo Nation lands, that are enumerated and described in Appendix A, and other areas where contamination associated with those abandoned uranium mine sites has been deposited, stored, disposed of, placed, or otherwise come to be located. The Proximate Mine Sites are in close physical proximity to one or more of the other Mine Sites. The Parties agree that they may amend Appendix A to add or delete Proximate Mine Sites by mutual consent.

         “RCRA” shall mean the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992, and as subsequently amended (also known as the Resource Conservation and Recovery Act).

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

         “Settling Federal Agencies” or “SFAs” shall mean any federal agency, department, or instrumentality involved in or responsible in any way for (a) any disposal or release of Waste Material at the Mine Sites or (b) Mining activities at the Mine Sites, or otherwise alleged to be liable for contamination at the Mine Sites, including but not limited to the Atomic Energy Commission, the United States Department of Energy, the United States Nuclear Regulatory Commission, the United States Department of the Interior and all subcomponents thereof, including but not limited to the United States Geological Survey and the Bureau of Indian Affairs, and any predecessor or successor departments, agencies, or instrumentalities.

         “Statement of Work” or “SOW” shall mean the document, attached as Appendix C, describing the activities Settling Defendants must perform to implement the response actions required by EPA under CERCLA at the Mine Sites, pursuant to the terms of this CD.

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

         “Transfer” shall mean to sell, assign, convey, lease, mortgage, or grant a security interest in, or where used as a noun, a sale, assignment, conveyance, or other disposition of any interest by operation of law or otherwise.

         “Trust Account” shall mean the U.S. Four Corners Uranium Mine Sites Trust Account established pursuant to the Trust Agreement attached to this CD as Appendix F, or any successor or substitute trust accounts.

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

         “Waste Material” shall mean (1) any “hazardous substance” under Section 101(14) of CERCLA, 42 U.S.C. § 9601(14); (2) any pollutant or contaminant under Section 101(33) of CERCLA, 42 U.S.C. § 9601(33); and (3) any “solid waste” under Section 1004(27) of RCRA, 42 U.S.C. § 6903(27).

         “Work” shall mean all activities and obligations Settling Defendants are required to perform under this CD, except the activities required under Section XX (Retention of Records).

         V. GENERAL PROVISIONS

         5. Objectives of the Parties.

         The objectives of the Parties in entering into this CD are to protect public health, welfare, and the environment by the investigation of and design and implementation of response actions at the Mine Sites by Settling Defendants, to pay response costs of Plaintiffs, to resolve the claims of Plaintiffs against Settling Defendants, as provided in Sections XV (Covenants by the United States) and XVI (Covenants by the Navajo Nation), and to resolve the claims of Settling Defendants and the Navajo Nation that have been or could have been asserted against the United States with regard to the Work at the Mine Sites, Past Response Costs, NN Past Response Costs, Future Response Costs, Past Settling Defendants Response Costs, and Future Settling Defendants Response Costs, as provided in Sections XVI (Covenants of the Navajo Nation) and XVII (Covenants of Settling Defendants and SFAs).

         6. Commitments by Settling Defendants and the SFAs.

         Settling Defendants shall finance and perform the Work in accordance with this CD, the SOW, and all deliverables developed by Settling Defendants and approved or modified by EPA, after reasonable opportunity for review and comment by NNEPA, pursuant to this CD. Settling Defendants shall pay the United States for its Past and Future Response Costs and the Navajo Nation for its Past and Future Response Costs as provided in this CD. SFAs shall reimburse Settling Defendants Future Response Costs, a portion of Past Response Costs and a portion of Navajo Nation Past Response Costs, as provided in this CD, and in the event of a Work Takeover shall act in accordance with Paragraph 70.d.

         7. Compliance with Applicable Law.

         Nothing in this CD limits Settling Defendants' obligations to comply with the requirements of all applicable Navajo, state, and federal laws and regulations, except as provided in Section 121(e) of CERCLA, 42 U.S.C. § 6921(e), and 40 C.F.R. §§ 300.400(e) and 300.415(j). Settling Defendants must also comply with all applicable or relevant and appropriate requirements of all federal, Navajo, and state environmental laws as set forth in any records of decision or action memoranda for the Mine Sites, or otherwise identified pursuant to the SOW. The activities conducted pursuant to this CD, if approved by EPA, shall be deemed to be consistent with the NCP as provided in Section 300.700(c)(3)(ii) of the NCP.

         8. Permits.

         a. As provided in Section 121(e) of CERCLA, 42 U.S.C. § 9621(e), and Section 300.400(e) of the NCP, no permit shall be required for any portion of the Work conducted entirely on-site (i.e., within the areal extent of contamination or in very close proximity to the contamination and necessary for implementation of the Work). Where any portion of the Work that is not on-site requires a federal, Navajo, or state permit or approval, Settling Defendants shall submit timely and complete applications and take all other actions necessary to obtain all such permits or approvals.

         b. Settling Defendants may seek relief under the provisions of Section XII (Force Majeure) for any delay in the performance of the Work resulting from a failure to obtain, or a delay in obtaining, any permit or approval referenced in ¶ 8.a and required for the Work, provided that they have submitted timely and complete applications and taken all other actions necessary to obtain all such permits or approvals. c. This CD is not, and shall not be construed to be, a permit issued pursuant to any federal, Navajo, or state statute or regulation.

         VI. PERFORMANCE OF THE WORK

         9. Coordination and Supervision.

         a. Project Coordinators.

         (1) Settling Defendants' Project Coordinator must have sufficient technical expertise to coordinate the Work. Settling Defendants' Project Coordinator may not be an attorney representing Settling Defendants in this matter and may not act as the Supervising Contractor. Settling Defendants' Project Coordinator may assign other representatives, including other contractors, to assist in coordinating the Work.

         (2) EPA has designated Linda Reeves as EPA's Project Coordinator and Mark Ripperda as EPA's Alternate Project Coordinator. EPA may designate other representatives, which may include its employees, contractors and/or consultants, to oversee the Work. EPA's Project Coordinator and Alternate Project Coordinator will have the same authority as a remedial project manager and/or an on-scene coordinator, as described in the NCP. This includes the authority to halt the Work and/or to conduct or direct any necessary response action when he or she determines that conditions at a Mine Site constitute an emergency or may present an immediate threat to public health or welfare or the environment due to a release or threatened release of Waste Material.

         (3) NNEPA shall designate and notify EPA and Settling Defendants of their Project Coordinator and Alternate Project Coordinator. NNEPA may designate other representatives, including its employees, contractors and/or consultants, to assist its Project Coordinators. For any meetings and inspections in which EPA's Project Coordinators participate, NNEPA's Project Coordinator[s] also may participate. Settling Defendants shall notify NNEPA reasonably in advance of any such meetings or inspections.

         (4) Settling Defendants' Project Coordinator shall meet, in person or by phone, with EPA's Project Coordinator and NNEPA's Project Coordinator, if he or she chooses to participate, in accordance with the schedules set forth in applicable work plans approved pursuant to the SOW.

         b. Supervising Contractor.

         Settling Defendants' proposed Supervising Contractor must have sufficient technical expertise to supervise the Work and a quality assurance system that complies with ANSI/ASQC E4-2014, Quality Systems for Environmental Data and Technology Programs: Requirements with Guidance for Use (American National Standard).

         c. Procedures for Disapproval/Notice to Proceed.

         (1) Settling Defendants shall designate, and notify EPA and NNEPA, within 10 days after the Effective Date, of the names, contact information, and qualifications of Settling Defendants' proposed Project Coordinator and Supervising Contractor.

         (2) EPA, after a reasonable opportunity for review and comment by NNEPA, shall issue notices of disapproval and/or authorizations to proceed regarding the proposed Project Coordinator and Supervising Contractor, as applicable. If EPA issues a notice of disapproval, Settling Defendants shall, within 30 days, submit to EPA a list of supplemental proposed Project Coordinators and/or Supervising Contractors, as applicable, including a description of the qualifications of each. EPA shall, after a reasonable opportunity for review and comment by NNEPA, issue a notice of disapproval or authorization to proceed regarding each supplemental proposed coordinator and/or contractor. Settling Defendants may select any coordinator/contractor covered by an authorization to proceed and shall, within 21 days, notify EPA and NNEPA of Settling Defendants' selection.

         (3) Settling Defendants may change their Project Coordinator and/or Supervising Contractor, as applicable, by following the procedures of ¶¶ 9.c(1) and 9.c(2).

         (4) Notwithstanding the procedures of ¶¶ 9.c(1) through 9.c(3), Settling Defendants have proposed, and EPA, after having provided a reasonable opportunity for review and comment by NNEPA, has authorized Settling Defendants to proceed, regarding the following Project Coordinator, Stuart Brown, 333 N. Central Avenue, Phoenix, Arizona 85004; (602) 366-8303; sbrown@fmi.com, and Supervising Contractor, CH2M Hill, 9191 South Jamaica Street, Englewood, Colorado 80112; (303) 771-0900.

         10. Performance of Work in Accordance with the SOW.

         Settling Defendants shall conduct all activities required pursuant to the SOW in accordance with the SOW and all EPA-approved, conditionally approved, or modified deliverables. All deliverables required to be submitted for approval under the CD or SOW shall be subject to approval by EPA, after a reasonable opportunity for review and comment by NNEPA, in accordance with Sections 13 (Approval of Deliverables) and 16 (NNEPA Participation) of the SOW.

         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 Account have been fully expended, the Annual Spending Cap shall be $30 million, as adjusted for inflation as provided in Paragraph 11.e.

         c. After all funds from the Trust Account have been fully expended, the Annual Spending Cap shall be $25 million, as adjusted for inflation as provided in Paragraph 11.e.

         d. The Parties shall undertake an annual planning process, according to the work plans required by the SOW. Through this process EPA, after a reasonable opportunity for review and comment by NNEPA, will determine which activities under the SOW must be performed in the following year, subject to the Annual Spending Cap. Settling Defendants shall perform those activities as directed by EPA, subject to the Annual Spending Cap. With EPA's approval and without waiver of Settling Defendants' rights, after a reasonable opportunity for review and comment by NNEPA, Settling Defendants may perform additional response actions that cause their spending to exceed the Annual Spending Cap in a calendar year.

         e. Inflation is adjusted annually beginning on the Inflation Start Date, based on the Producer Price Index, excluding food and energy (“PPI”). The annual inflation adjustment, however, shall be no less than 1% and no greater than 3%, notwithstanding any lesser or greater change in the PPI.

         f. Emergency Response Cost Exception. Any costs incurred by Settling Defendants in responding to an event that causes or threatens to cause a release of Waste Material on, at, or from any of the Mine Sites and that constitutes an emergency situation shall not count toward the Annual Spending Cap that year. This exception shall apply only when the emergency situation could not have been anticipated and incorporated into the annual planning process. If the response to the emergency situation continues for more than 90 days, the costs of response activities performed after 90 days shall be incorporated into the next year's annual planning process and be subject to the Annual Spending Cap. Notwithstanding any other provisions of this Consent Decree, Settling Defendants shall not cease actions to address an emergency situation unless EPA directs Settling Defendants to do so. An “emergency situation” shall be defined as a situation in which there is an immediate threat to human health or the environment for which EPA requires response activities to begin on-site within 24 hours of EPA's determination that a removal action is appropriate.

         12. Emergencies and Releases.

         a. Emergency Response and Reporting. If any event occurs during performance of the Work that causes or threatens to cause a release of Waste Material on, at, or from a Mine Site that either constitutes an emergency situation or that may present an immediate threat to public health or welfare or the environment, Settling Defendants shall immediately take all appropriate action to prevent, abate, or minimize such release or threat of release. Settling Defendants shall take such action in accordance with all applicable provisions of this CD and the SOW, including, but not limited to, the Health and Safety Plan. Settling Defendants shall also immediately notify (1) EPA's Project Coordinator, EPA's Alternate Project Coordinator (if the EPA Project Coordinator is unavailable), or the Regional Duty Officer at (800) 300-2193 (if neither EPA Project Coordinator is available); and (2) NNEPA's Project Coordinator or NNEPA's Alternate Project Coordinator (if NNEPA's Project Coordinator is unavailable) of the incident or site conditions.

         b. Release Reporting. Upon the occurrence of any event during performance of the Work that Settling Defendants are required to report pursuant to Section 103 of CERCLA, 42 U.S.C. § 9603, or Section 304 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. § 11004, Settling Defendants shall immediately orally notify: (1) EPA's Project Coordinator, EPA's Alternate Project Coordinator (if the EPA Project Coordinator is unavailable), or the Regional Duty Officer at (800) 300-2193 (if neither EPA Project Coordinator is available); (2) NNEPA's Project Coordinator or NNEPA's Alternate Project Coordinator (if NNEPA's Project Coordinator is unavailable); and (3) the National Response Center at (800) 424-8802. This reporting requirement is in addition to, and not in lieu of, reporting under Section 103(c) of CERCLA, 42 U.S.C. § 9603(c), and Section 304 of EPCRA, 42 U.S.C. § 11004.

         c. For any event covered by ¶¶ 12.a or 12.b, Settling Defendants shall submit a written report to EPA, with a copy to NNEPA, within 10 days after the onset of such event, setting forth the action or event that occurred and measures taken, and to be taken, to mitigate any release or threat of release or endangerment caused or threatened by the release and to prevent the reoccurrence of such a release or threat of release.

         d. Subject to Sections XV (Covenants by United States) and XVI (Covenants by Navajo Nation), nothing in this CD, including ¶¶ 12.a and 12.b, limits any authority of Plaintiffs: (a) to take all appropriate action to protect human health and the environment or to prevent, abate, respond to, or minimize an actual or threatened release of Waste Material on, at, or from the Mine Sites, or (b) to direct or order such action, or seek an order from the Court, to protect human health and the environment or to prevent, abate, respond to, or minimize an actual or threatened release of Waste Material on, at, or from the Mine Sites. If, due to Settling Defendants' failure to take appropriate response action under ¶¶ 12.a or 12.b, EPA or, as appropriate, NNEPA takes such action instead, Settling Defendants shall reimburse EPA or NNEPA, as appropriate, under Section X (Payments for Future Response Costs) for all costs of the response action.

         13. Community Involvement.

         If requested by EPA, after conferring with NNEPA, Settling Defendants shall participate in community involvement activities. Settling Defendants shall conduct community involvement activities under EPA's and NNEPA's oversight as provided for in, and in accordance with, Section 3 (Community Involvement) of the SOW. Such activities may include, but are not limited to, designation of a Community Involvement Coordinator and implementation of a technical assistance plan. Costs incurred by the United States or the Navajo Nation under this Section constitute Future Response Costs to be reimbursed under Section X (Payments for Response Costs).

         14. Modification of SOW or Related Deliverables.

         a. If EPA determines, after a reasonable opportunity for review and comment by NNEPA, that it is necessary to modify the work specified in the SOW and/or in deliverables developed under the SOW in order to achieve and/or maintain the Performance Standards or to carry out and maintain the effectiveness of the selected response actions, then EPA may notify Settling Defendants of such modification. If Settling Defendants object to the modification they may, within 30 days after EPA's notification, seek dispute resolution under Section XIII. Notwithstanding this paragraph, EPA may not modify the SOW to require Settling Defendants to characterize or implement response actions for groundwater or surface water at the Proximate Mine Sites.

         b. The SOW and/or related work plans shall be modified: (1) in accordance with the modification issued by EPA; or (2) if Settling Defendants invoke dispute resolution, in accordance with the final resolution of the dispute. The modification shall be incorporated into and enforceable under this CD, and Settling Defendants shall implement all work required by such modification. Settling Defendants shall incorporate the modification into the deliverable required under the SOW, as appropriate.

         c. Nothing in this Paragraph shall be construed to limit EPA's authority to require performance of further response actions as otherwise provided in this CD.

         15. Modification of Appendices A and B.

         The Parties agree that they may add or remove abandoned uranium mine sites or the transfer station from the lists in Appendices A and B by mutual agreement and written consent of each Party.

         16. Nothing in this CD, the SOW, or any deliverable required under the SOW constitutes a warranty or representation of any kind by Plaintiffs that compliance with the work requirements set forth in the SOW or related deliverable will achieve the Performance Standards.

         VII. REMEDY REVIEW

         17. Periodic Review.

         If any remedial actions are taken at any Mine Site or Mine Sites pursuant to this CD, Settling Defendants shall conduct studies and investigations to support EPA's reviews under Section 121(c) of CERCLA, 42 U.S.C. § 9621(c), and applicable regulations of whether the remedial actions implemented are protective of human health and the environment.

         VIII. PROPERTY REQUIREMENTS

         18. Agreements Regarding Access and Non-Interference.

         Settling Defendants shall, with respect to any Affected Property, use best efforts to secure all necessary access agreements, which shall be enforceable by Settling Defendants, EPA, and NNEPA, and which shall provide that the lease and/or permit holders at the Affected Property, and the Affected Property owner, if the Affected Property is owned by another entity that is not a Party, shall: (i) provide Settling Defendants, EPA, and NNEPA, and their representatives, contractors, and subcontractors, with access at all reasonable times to such Affected Property to conduct any activity regarding this CD, including those listed in ¶ 18.a (Access Requirements); and (ii) refrain from using such Affected Property in any manner that EPA determines, after providing NNEPA with a reasonable opportunity to review and comment on the determination, will pose an unacceptable risk to human health or to the environment due to exposure to Waste Material, or interfere with or adversely affect the implementation of the Work.

         a. Access Requirements.

         The following list provides examples of activities for which access to an Affected Property is required:

(1) Monitoring the Work;
(2) Verifying any data or information submitted to the United States or the Navajo Nation;
(3) Conducting investigations regarding contamination at or near the Mine Sites;
(4) Obtaining samples;
(5) Assessing the need for, planning, implementing, or monitoring response actions at or near the Mine Sites;
(6) Assessing implementation of quality assurance and quality control practices as defined in the approved construction quality assurance quality control plan, as provided in the SOW;
(7) Implementing the Work pursuant to this CD, including pursuant to the conditions set forth in ¶ 70 (Work Takeover);
(8) Inspecting and copying records, operating logs, contracts, or other documents maintained or generated by Settling Defendants or their agents, consistent with Section XIX (Access to Information);
(9) Assessing Settling Defendants' compliance with the CD;
(10) Determining whether the Affected Property is being used in a manner that is prohibited or restricted, or that may need to be prohibited or restricted under the CD; and
(11) Implementing, monitoring, maintaining, reporting on, and enforcing any land, water, or other resource use restrictions.

         19. Best Efforts.

         As used in this Section, “best efforts” means the efforts that a reasonable person in the position of Settling Defendants would use so as to obtain access or use restrictions in a timely manner, including the cost of employing professional assistance and the payment of reasonable sums of money to secure access and/or use restriction agreements. If Settling Defendants are unable to accomplish what is required through “best efforts” in a timely manner, Settling Defendants shall notify the United States and the Navajo Nation and include a description of the steps taken to comply with the requirements in this Section. If the United States deems it appropriate, EPA may assist Settling Defendants, or take independent action, in obtaining such access and/or use restrictions. If the Navajo Nation deems it appropriate, NNEPA may assist Settling Defendants, or take independent action, in obtaining such access and/or use restrictions. All costs incurred by the United States and the Navajo Nation in providing such assistance or taking such action, including the cost of attorney time and the amount of monetary consideration or just compensation paid, constitute Future Response Costs to be reimbursed under Section X (Payments for Response Costs).

         20. In the event of any Transfer of the Affected Property, unless the United States otherwise consents in writing, Settling Defendants shall continue to comply with their obligations under the CD, including their obligation to secure access and ensure compliance with any land, water, or other resource use restrictions regarding the Affected Property.

         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 resource use restrictions, including enforcement authorities related thereto, under CERCLA, RCRA, NNCERCLA, and any other applicable statute or regulations.

         IX. FINANCIAL ASSURANCE

         22. In order to ensure completion of the Work, Settling Defendants shall secure financial assurance, in an amount determined in accordance with paragraph 27, for the benefit of EPA. The financial assurance must be one or more of the mechanisms listed below, in a form substantially identical to the relevant sample documents available from the “Financial Assurance” category on the Cleanup Enforcement Model Language and Sample Documents Database at http://cfpub.epa.gov/compliance/models/, and satisfactory to EPA, after a reasonable opportunity for review and comment by NNEPA. Settling Defendants may use multiple mechanisms if they are limited to surety bonds guaranteeing payment, letters of credit, trust funds, and/or insurance policies.

         a. A surety bond guaranteeing payment and/or performance of the Work that is issued by a surety company among those listed as acceptable sureties on federal bonds as set forth in Circular 570 of the U.S. Department of the Treasury;

         b. An irrevocable letter of credit, payable to or at the direction of EPA, after a reasonable opportunity for review and comment by NNEPA, that is issued by an entity that has the authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by a federal or state agency;

         c. A trust fund established for the benefit of EPA that is administered by a trustee that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency;

         d. A policy of insurance that provides EPA with acceptable rights as beneficiary thereof and that is issued by an insurance carrier that has the authority to issue insurance policies in the applicable jurisdiction(s) and whose insurance operations are regulated and examined by a federal or state agency;

         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 reporting requirements of this Section for the sum of the Financial Assurance Amount and the amounts, if any, of other federal, state, or tribal environmental obligations financially assured through the use of a financial test or guarantee, accompanied by a standby funding commitment, which obligates Settling Defendants to pay funds to or at the direction of EPA, after a reasonable opportunity for review and comment by NNEPA, up to the amount financially assured through the use of this demonstration in the event of a Work Takeover; or

         f. A guarantee to fund or perform the Work executed in favor of EPA by one of the following: (1) a direct or indirect parent company of Settling Defendants; or (2) a company that has a “substantial business relationship” (as defined in 40 C.F.R. § 264.141(h)) with Settling Defendants; provided, however, that any company providing such a guarantee must demonstrate to EPA's satisfaction, after a reasonable opportunity for review and comment by NNEPA, that it meets the relevant financial test criteria of 40 C.F.R. § 264.143(f) and reporting requirements of this Section for the sum of the Financial Assurance Amount and the amounts, if any, of other federal, state, or tribal environmental obligations financially assured through the use of a financial test or guarantee.

         23. Settling Defendants have selected, and EPA has found satisfactory, after a reasonable opportunity for review and comment by NNEPA, as an initial financial assurance a surety bond in the form attached as Appendix D. Within 30 days after the Effective Date, Settling Defendants shall secure all executed and/or otherwise finalized mechanisms or other documents consistent with the form of financial assurance attached as Appendix D and shall submit such mechanisms and documents to the Regional Financial Management Officer, to the United States and the Navajo Nation, and to EPA and NNEPA as specified in Section XXI (Notices and Submissions).

         24. If Settling Defendants provide financial assurance by means of a demonstration or guarantee under ¶ 22.e or 22.f, Settling Defendants shall also comply and shall ensure that their guarantors comply with the other relevant criteria and requirements of 40 C.F.R. § 264.143(f) and this Section, including, but not limited to: (a) the initial submission to EPA and NNEPA of required documents from the affected entity's chief financial officer and independent certified public accountant no later than 30 days after the Effective Date; (b) the annual resubmission of such documents within 90 days after the close of each such entity's fiscal year; and (c) the notification of EPA and NNEPA no later than 30 days, in accordance with ¶ 25, after any such entity determines that it no longer satisfies the relevant financial test criteria and requirements set forth at 40 C.F.R. § 264.143(f)(1). Settling Defendants agree that EPA may also, based on a belief that an affected entity may no longer meet the financial test requirements of ¶ 22.e or 22.f, and after a reasonable opportunity for review and comment by NNEPA, require reports of financial condition at any time from such entity in addition to those specified in this Paragraph. For purposes of this Section, references in 40 C.F.R. Part 264, Subpart H, to: (1) the terms “current closure cost estimate, ” “current post-closure cost estimate, ” and “current plugging and abandonment cost estimate” include the Financial Assurance Amount; (2) the phrase “the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates” includes the sum of all environmental obligations (including obligations under CERCLA, RCRA, and any other federal, state, or tribal environmental obligation) guaranteed by such company or for which such company is otherwise financially obligated in addition to the Financial Assurance Amount under this CD; (3) the terms “owner” and “operator” include Settling Defendants, if they are making a demonstration or obtaining a guarantee under ¶ 22.e or 22.f; and (4) the terms “facility” and “hazardous waste management facility” include the Mine Sites.

         25. Settling Defendants shall diligently monitor the adequacy of the financial assurance. If Settling Defendants become aware of any information indicating that the financial assurance provided under this Section is inadequate or otherwise no longer satisfies the requirements of this Section, Settling Defendants shall notify EPA and NNEPA of such information within 7 days. If EPA determines, after a reasonable opportunity for review and comment by NNEPA, that the financial assurance provided under this Section is inadequate or otherwise no longer satisfies the requirements of this Section, EPA will notify Settling Defendants of such determination. Settling Defendants shall, within 30 days after notifying EPA or receiving notice from EPA under this Paragraph, secure and submit to EPA for approval a proposal for a revised or alternative financial assurance mechanism that satisfies the requirements of this Section, and shall submit a copy of the proposal to NNEPA. EPA may extend this deadline for such time as is reasonably necessary for Settling Defendants, in the exercise of due diligence, to secure and submit to EPA a proposal for a revised or alternative financial assurance mechanism, not to exceed 60 days. Settling Defendants shall follow the procedures of ¶ 27 (Modification of Financial Assurance) in seeking approval of, and submitting documentation for, the revised or alternative financial assurance mechanism. Settling Defendants' inability to secure and submit to EPA financial assurance in accordance with this Section shall in no way excuse performance of any other requirements of this CD, including, without limitation, the obligation of Settling Defendants to complete the Work in accordance with the terms of this CD.

         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 and/or related standby funding commitment, EPA is entitled to: (1) the performance of the Work; and/or (2) payment of any guaranteed funds, in accordance with ¶ 26.d.

         b. If EPA is notified by the issuer of a financial assurance mechanism that it intends to cancel such mechanism, and Settling Defendants fail to provide an alternative financial assurance mechanism in accordance with this Section at least 30 days prior to the cancellation date, the funds guaranteed under such mechanism must be paid prior to cancellation in accordance with ¶ 26.d.

         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 resources guaranteed under any applicable financial assurance mechanism and/or related standby funding commitment, whether in cash or in kind, to continue and complete the Work; or (2) the financial assurance is provided under ¶ 22.e or 22.f, then EPA may demand an amount, as determined by EPA, sufficient to cover the cost of the remaining Work to be performed. Settling Defendants shall, immediately upon written demand from EPA, pay the amount demanded as directed by EPA.

         d. Any amounts required to be paid under this ¶ 26 shall be, as directed by EPA: (i) paid to EPA in order to facilitate the completion of the Work by EPA or by another person; or (ii) deposited into an interest-bearing account, established at a duly chartered bank or trust company that is insured by the FDIC, in order to facilitate the completion of the Work by another person. If payment is made to EPA, EPA may deposit the payment into the EPA Hazardous Substance Superfund or into the Cyprus Amax/Western Nuclear Mine Sites Special Account within the EPA Hazardous Substance Superfund to be retained and used to conduct or finance response actions at or in connection with the Mine Sites, or to be transferred by EPA to the EPA Hazardous Substance Superfund.

         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).

         27. Determining the amount of Settling Defendants' financial assurance

         a. The Financial Assurance Amount shall be the sum of estimated costs for Work under all Decision Documents for which EPA has not yet issued a Notice of Completion, pursuant to Section 10.8 of the SOW. The Financial Assurance Amount shall also include an additional amount of $29.4 million until EPA issues a Notice of Completion for the First Component of Work.

         b. Settling Defendants shall be required to secure financial assurance in an amount equal to one-half of the Financial Assurance Amount until the Trigger (defined in ¶ 34.b(6)). Upon the occurrence of the Trigger, Settling Defendants shall have no further obligation to provide financial assurance until the amount of funds remaining in the Trust Account is less than the Financial Assurance Amount. When the amount of funds remaining in the Trust Account becomes less than the Financial Assurance Amount, Setting Defendants shall secure financial assurance in an amount equal to the difference between the Financial Assurance Amount and the Trust Account balance, but not more than one-half of the Financial Assurance Amount, until the Trust Account is exhausted. Settling Defendants shall increase their financial assurance semi-annually, if such an increase is necessary. Upon exhaustion of the Trust Account, Settling Defendants shall be required to continue to secure financial assurance in an amount equal to one-half of the Financial Assurance Amount.

         c. Upon EPA's signature of a Decision Document, the estimated costs for the Work under that Decision Document shall be included in the calculation of the Financial Assurance Amount pursuant to paragraph 27.a. Settling Defendants shall secure any necessary additional financial assurance, within 30 days of EPA's signature of that Decision Document.

         d. The Financial Assurance Amount may be reduced only in accordance with the procedures set forth in paragraph 27.e.

         e. Modification of Amount, Form, or Terms of Financial Assurance.

         Settling Defendants may at any time submit a request to reduce the Financial Assurance Amount or change the form or terms of the financial assurance mechanism. Any such request must be submitted to EPA and NNEPA in accordance with ¶ 23, and must include an estimate of the cost of the remaining Work under all Decision Documents and in the First Component of the Work, an explanation of the bases for the cost calculation, and a description of the proposed changes, if any, to the form or terms of the financial assurance. EPA will notify Settling Defendants, after EPA provides a reasonable opportunity for review and comment by NNEPA, of its decision to approve or disapprove a requested reduction or change pursuant to this Paragraph. Settling Defendants may reduce the Financial Assurance Amount only in accordance with: (a) EPA's approval; or (b) if there is a dispute, the agreement, final administrative decision, or final judicial decision resolving such dispute under Section XIII (Dispute Resolution). Within 30 days after EPA's approval of or the agreement or decision resolving a dispute relating to the requested modification to the amount, Settling Defendants shall submit to EPA, with a copy to NNEPA, documentation of the reduced financial assurance mechanism in accordance with ¶ 23. Any decision made by EPA on a request submitted under this Paragraph to change the form or terms of a financial assurance mechanism shall be made in EPA's sole and unreviewable discretion, and such decision shall not be subject to challenge by Settling Defendants pursuant to the dispute resolution provisions of this CD or in any other forum. Within 30 days after receipt of EPA's approval of any requested modifications of the form or terms of financial assurance pursuant to this Paragraph, Settling Defendants shall submit to EPA, with a copy to NNEPA, documentation of the revised or alternative financial assurance mechanism in accordance with ¶ 23.

         28. Release, Cancellation, or Discontinuation of Financial Assurance.

         Settling Defendants may release, cancel, or discontinue any financial assurance provided under this Section only: (a) after EPA issues a Notification of Work Completion under ¶ 11.4 (Certification of Work Completion) of the SOW for every Mine Site; (b) in accordance with EPA's approval of such release, cancellation, or discontinuation; or (c) if there is a dispute regarding the release, cancellation or discontinuance of any financial assurance, in accordance with the agreement, final administrative decision, or final judicial decision resolving such dispute under Section XIII (Dispute Resolution).

         X. PAYMENTS FOR RESPONSE COSTS

         29. Payment by Settling Defendants for United States Past Response Costs.

         Within 30 days after the Effective Date, Settling Defendants shall pay to EPA $1, 506, 915.01 for Past Response Costs. Payment shall be made in accordance with ¶ 35.a (instructions for past response cost payments).

         30. Payment by Settling Defendants for NN Past Response Costs.

         Within 30 days after the Effective Date, Settling Defendants shall pay NNEPA $8, 099.60 for Navajo Nation Past Response Costs. Payment shall be made in accordance with ¶ 35.c.

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

         a. As soon as reasonably practicable after the Effective Date, the United States on behalf of the SFAs shall pay to EPA $1, 506, 915.01 for Past Response Costs. Payment shall be made in accordance with Paragraph 35.a (instructions for past response cost payments). The total amount to be paid by the United States on behalf of the SFAs shall be deposited by EPA in the Cyprus Amax/Western Nuclear Mines Sites Special Account to be retained and used to conduct or finance response actions at or in connection with the Mine Sites.

         b. As soon as reasonably practicable after the Effective Date, the United States on behalf of the SFAs shall pay NNEPA $8, 099.59 for Navajo Nation Past Response Costs. Payment shall be made in accordance with Paragraph 35.c.

         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 Amax/Western Nuclear Mine Sites Special Account to be retained and used to conduct or finance response actions at or in connection with the Mine Sites.

         33. Payments by Settling Defendants for Future Response Costs.

         Settling Defendants shall pay to EPA and NNEPA all Future Response Costs not inconsistent with the NCP.

         a. Prepayment of Future Response Costs.

         Within 30 days after the Effective Date, Settling Defendants shall pay NNEPA $100, 000 as an initial payment toward Future Response Costs. This payment shall be made in accordance with ¶ 35.c (instructions for future response cost prepayments). The total amount paid to NNEPA shall be deposited in the NNCERCLA Cyprus Amax/Western Nuclear Sites Special Account . These funds shall be retained and used by NNEPA to conduct or finance future response actions at or in connection with the Mine Sites.

         b. Periodic Bills.

         On a periodic basis, EPA will send Settling Defendants a bill requiring payment that includes a cost summary, which includes direct and indirect costs incurred by EPA, its contractors, subcontractors, and DOJ. EPA may periodically provide to Settling Defendants estimates of Future Response Costs incurred by EPA since the date of the last bill and projections of costs to be incurred by EPA in the upcoming year. On a periodic basis, NNEPA will send Settling Defendants a bill requiring payment that includes a cost summary, which includes direct and indirect costs incurred by NNEPA, NNDOJ, contractors, and subcontractors. Settling Defendants shall make all payments within 30 days after Settling Defendants' receipt of each bill requiring payment, except as otherwise provided in ¶ 36, in accordance with ¶¶ 35.b and 35.c (instructions for future response cost payments).

         c. Deposit of Future Response Costs Payments.

         The total amount to be paid by Settling Defendants to EPA pursuant to ¶ 33.b (Periodic Bills) shall be deposited by EPA in the Cyprus Amax/Western Nuclear Mine Sites Special Account to be retained and used to conduct or finance response actions at or in connection with the Mine Sites, or to be transferred by EPA to the EPA Hazardous Substance Superfund, provided, however, that EPA may deposit a Future Response Costs payment directly into the EPA Hazardous Substance Superfund if, at the time the payment is received, EPA estimates that the Cyprus Amax/Western Nuclear Mine Sites Special Account balance is sufficient to address currently anticipated future response actions to be conducted or financed by EPA at or in connection with the Mine Sites. Any decision by EPA to deposit a Future Response Costs payment directly into the EPA Hazardous Substance Superfund for this reason shall not be subject to challenge by Settling Defendants pursuant to the dispute resolution provisions of this CD or in any other forum. The total amount to be paid to NNEPA by Settling Defendants pursuant to ¶ 33.b (Periodic Bills) shall be deposited by NNEPA into the NNCERCLA Cyprus Amax/Western Nuclear Mine Sites Special Account.

         d. Unused Amount.

         After EPA issues the Notice of Completion of Work pursuant to Section XXV and NNEPA issues a final accounting of the NNCERCLA Cyprus Amax/Western Nuclear Mine Sites Special Account (including crediting Settling Defendants for any amounts received under ¶¶ 33.a (Prepayment of Future Response Costs) or 33.b (Periodic Bills), NNEPA will offset the next Future Response Costs bill by the unused amount paid by Settling Defendants pursuant to ¶¶ 33.a (Prepayment of Future Response Costs) or 33.b (Periodic Bills); apply any unused amount paid by Settling Defendants pursuant to ¶¶ 33.a (Prepayment of Future Response Costs) or 33.b (Periodic Bills) to any other unreimbursed response costs or response actions remaining at the Mine Sites; or remit and return to Settling Defendants any unused amount of the funds paid by Settling Defendants pursuant to ¶¶ 33.a (Prepayment of Future Response Costs) or 33.b (Periodic Bills). Any decision by NNEPA to apply unused amounts to unreimbursed response costs or response actions remaining at the Mine Sites shall not be subject to challenge by Settling Defendants pursuant to the dispute resolution provisions of this CD or in any other forum.

         34. Payments by SFAs.

         a. Cash-out Payment for Future Settling Defendants Response Costs.

         Following the Effective Date, and as soon as reasonably practicable following receipt of payment instructions from the Trustee, the United States shall deposit $335 million into the Trust Account created pursuant to the Trust Agreement that the United States and Settling Defendants shall execute, attached hereto as Appendix F.

         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 Trust Agreement. In no case may Settling Defendants submit claims for reimbursement more frequently than once every 30 calendar days. Nothing herein shall be interpreted to preclude Settling Defendants from submitting claims for reimbursement at less frequent intervals.

         (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 submit claims for reimbursement from the Trust Account for up to 50 percent of Future Settling Defendants Response Costs.

         (4) Annual Review by the United States. No later than March 1 of each year, beginning in 2018, Settling Defendants shall submit to the United States a statement of Future Settling Defendants Response Costs incurred in the prior calendar year. Settling Defendants shall include a statement of all reimbursements obtained from the Trust Account for costs incurred during that calendar year, as well as sufficient documentation to allow verification of the accuracy of the costs claimed, proof of payment of all of the Future Settling Defendants Response Costs included in the statement, and a signed certification under penalty of law that such costs were properly incurred and consistent with the National Contingency Plan, this Consent Decree, and any Decision Documents. The information required under this subparagraph shall constitute a "Settling Defendants Costs Statement."

         (5) From the Inflation Start Date until the Trigger under Paragraph 34.b(6), each calendar year Settling Defendants may submit claims for reimbursement from the Trust Account for Future Settling Defendants Response Costs up to 50 percent of the $25 Million Cap. For any Future Settling Defendants Response Costs above the $25 Million Cap and up to the Annual Spending Cap, Settling Defendants may submit claims for reimbursement for 100 percent of such costs from the Trust Account. If Settling Defendants elect under Paragraph 11.d to perform Work that causes Future Settling Defendants Response Costs to exceed the Annual Spending Cap in any calendar year, Settling Defendants may submit claims for reimbursement from the Trust Account for 50 percent of such excess amount.

         (6) If and when the net total Future Settling Defendants Response Costs exceed $265 million (the "Trigger"), Settling Defendants may thereafter submit claims for reimbursement from the Trust Account for 100 percent of Settling Defendants Future Response Costs, up to the Annual Spending Cap. For the avoidance of doubt, the Trigger shall not be adjusted for inflation pursuant to Paragraph 11.e. If Settling Defendants elect under Paragraph 11.d to perform Work that causes Future Settling Defendants Response Costs to exceed the Annual Spending Cap, Settling Defendants may submit claims for reimbursement from the Trust Account for up to 50 percent of such excess amount. Settling Defendants' total net spending does not include any spending for which Settling Defendants obtained, or are in the process of obtaining, reimbursement from the Trust Account. Settling Defendants must notify the United States within 15 days after its accounting indicates that total net spending reached $265 million. Settling Defendants shall include in this notification a Settling Defendants Costs Statement covering the period of time from the last such annual statement provided pursuant to Paragraph 34.b(4) through the Trigger.

         (7) Notwithstanding anything to the contrary contained herein, but subject to the provisions of Paragraph 34.b(8) regarding the Proximate Mines, for any Future Settling Defendants Response Costs incurred in response to an emergency as described in Paragraph 11.f, Settling Defendants may submit claims for reimbursement from the Trust Account for only 50 percent of any such costs.

         (8) Notwithstanding anything to the contrary contained herein, for any Future Settling Defendants Response Costs incurred pursuant to Paragraph 11.f, to the extent (a) such costs are incurred at a Proximate Mine and (b) the emergency was not caused by any action taken by Settling Defendants, Settling Defendants may submit claims for reimbursement from the Trust Account (or the United States, in the event of the Re-Opener Event) for 100 percent of any such costs.

         (9) In the event EPA implements a Work Takeover pursuant to Paragraph 70, the Trust Account may be used to reimburse or incur response costs for the Work other than Future Settling Defendants Response Costs. If EPA subsequently terminates the Work Takeover and Settling Defendants resume performance of the Work, disbursements from the Trust Account to the Settling Defendants shall be reduced (or the United States shall reduce its reimbursements, if after the Re-Opener Event) by an amount equal to the costs incurred by the Trust Account in excess of what the Trust Account would have otherwise paid as reimbursement for Future Settling Defendants Response Costs. Such reduction, however, shall exclude any costs that (1) in the absence of a Work Takeover, would not be paid by the Trust Account as reimbursement for Future Settling Defendants Response Costs pursuant to Paragraph 34.b, and (2) are or could have been paid through EPA's access to financial assurance pursuant to Paragraph 26.

         c. Re-Opener Event.

         In the event the funds in the Trust Account are exhausted, the United States on behalf of the SFAs agrees to thereafter reimburse Settling Defendants for 50 percent of Future Settling Defendants Response Costs ("the Re-Opener Event"). Settling Defendants may submit claims for reimbursement of up to 50 percent of Future Settling Defendants Response Costs (including any spending to respond to an emergency as described in Paragraph 11.f, or up to 100 percent of such Future Settling Defendants Response Costs to the extent that they were incurred to address an emergency situation at a Proximate Mine pursuant to Paragraph 34.b(8)), to the Chief of the Environmental Defense Section of DOJ's Environmental and Natural Resources Division no more often than once every six months. Settling Defendants shall include with each claim for reimbursement a Settling Defendants Costs Statement for the period of time for which it seeks reimbursement.

         d. Dispute Resolution for Future Settling Defendants Response Costs.

         (1) Upon the receipt of any Settling Defendants Costs Statement, the United States shall have 60 days to review and approve the Settling Defendants Costs 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 pursuant to Paragraph 99. Any objection shall identify the contested costs and the basis for objection. As soon as reasonably practicable following the close of the 60 day review period, the United States shall reimburse Settling Defendants for the United States' share of any uncontested Settling Defendants Future Response Costs contained in a Settling Defendants Costs Statement.

         (2) If the United States objects to any Settling Defendants Costs Statement in whole or in part, Settling Defendants and the United States agree to participate in informal negotiations to resolve the dispute. The period of informal negotiations shall last 60 days from the date the United States transmits its objection pursuant to Paragraph 99, and may be extended upon mutual consent by the United States and Settling Defendants.

         (3) If informal negotiations are unsuccessful, the United States and Settling Defendants reserve their right to submit the dispute to non-binding mediation or to the Court to resolve the matter. The reasonable costs and expenses of mediation shall be borne equally by the parties, and each party shall bear its own attorney fees, expert fees, and other costs of mediation.

         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 Defendants Costs Statement, the next disbursement from the Trust Account (or the next reimbursement from the United States, if after the Re-Opener Event) to the Settling Defendants shall by reduced by a corresponding amount.

         f. Section XIII (Dispute Resolution) of this Consent Decree does not apply to disputes raised pursuant to this Paragraph. Any dispute raised pursuant to this Paragraph shall not excuse performance by the SFAs and Settling Defendants of their obligations under this Consent Decree.

         g. Interest. The United States shall pay Interest on any unpaid balance on a Settling Defendants Costs Statement submitted pursuant to Paragraph 34.b(4); Interest shall begin to accrue starting on the 61st day after the receipt of a Settling Defendants Costs Statement and shall continue through the date of the payment. In the event the United States objects to a Settling Defendants Costs Statement in whole or in part and prevails on any disputed costs, the United States shall not be required to pay those costs or any Interest on those costs.

         h. The Parties to this CD recognize and acknowledge that the payment obligations of the United States under this CD can only be paid from appropriated funds legally available for such purpose. Nothing in this CD shall be interpreted or construed as a commitment or requirement that the United States or any Settling Federal Agency obligate or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other applicable provision of law.

         35. Payment Instructions for Settling Defendants.

         a. Past Response Costs Payments to the United States.

         (1) The Financial Litigation Unit (FLU) of the United States Attorney's Office for the District of Arizona shall provide Settling Defendants, in accordance with ¶ 99, with instructions regarding making payments to DOJ on behalf of EPA. The instructions must include a Consolidated Debt Collection System (CDCS) number to identify payments made under this CD.

         (2) For all payments subject to this ¶ 35.a, Settling Defendants shall make such payment by Fedwire Electronic Funds Transfer (EFT) / at https://www.pay.gov to the U.S. DOJ account, in accordance with the instructions provided under and including references to the CDCS Number, Site/Spill ID Number A976, and DJ Number 90-11-2-10823/1.

         (3) For each payment made under this ¶ 35.a, Settling Defendants shall send notices, including references to the CDCS, Site/Spill ID, and DJ numbers, to the United States, EPA, and the EPA Cincinnati Finance Center, all in accordance with ¶ 99.

         b. Future Response Costs Payments to the United States and Stipulated Penalties.

         (1) For all payments subject to this ¶ 35.b, Settling Defendants shall make such payment by Fedwire EFT, referencing the Site/Spill ID and DJ numbers. The Fedwire EFT payment must be sent as follows:

Federal Reserve Bank of New York
ABA = 021030004
Account = 68010727
SWIFT address = FRNYUS33
33 Liberty Street
New York NY 10045
Field Tag 4200 of the Fedwire message should read
“D 68010727 Environmental Protection Agency”

         (2) For all payments made under this ¶ 35.b, Settling Defendants must include references to the Site/Spill ID and DJ numbers. At the time of any payment required to be made in accordance with ¶ 35.b, Settling Defendants shall send notices that payment has been made to the United States, EPA, and the EPA Cincinnati Finance Center, all in accordance with ¶ 99. All notices must include references to the Site/Spill ID and DJ numbers.

         c. Past and Future Response Costs Payments to the Navajo Nation.

         All payments to the Navajo Nation required by this CD shall be made in accordance with instructions to be provided by NNEPA.

         36. Contesting Future Response Costs.

         Settling Defendants may submit a Notice of Dispute, initiating the procedures of Section XIII (Dispute Resolution), regarding any Future Response Costs billed under ¶ 33 (Payments by Settling Defendants for Future Response Costs) if they determine that EPA or the Navajo Nation has made a mathematical error or included a cost item that is not within the definition of Future Response Costs, or if they believe EPA or the Navajo Nation incurred excess costs as a direct result of an EPA or NNEPA action that was inconsistent with a specific provision or provisions of the NCP. Such Notice of Dispute shall be submitted in writing within 30 days after receipt of the bill and must be sent to the United States (if the United States' accounting is being disputed) or the Navajo Nation (if the Navajo Nation's accounting is being disputed) pursuant to Section XXI (Notices and Submissions). Such Notice of Dispute shall specifically identify the contested Future Response Costs and the basis for objection. If Settling Defendants submit a Notice of Dispute, Settling Defendants shall within the 30-day period, also as a requirement for initiating the dispute, (a) pay all uncontested Future Response Costs to the United States and the Navajo Nation, and (b) establish, in a duly chartered bank or trust company, an interest-bearing escrow account that is insured by the Federal Deposit Insurance Corporation (FDIC), and remit to that escrow account funds equivalent to the amount of the contested Future Response Costs. Settling Defendants shall send to the United States or the Navajo Nation, as appropriate, as provided in Section XXI (Notices and Submissions), a copy of the transmittal letter and check paying the uncontested Future Response Costs and a copy of the correspondence that establishes and funds the escrow account, including, but not limited to, information containing the identity of the bank and bank account under which the escrow account is established as well as a bank statement showing the initial balance of the escrow account. If the United States or the Navajo Nation prevails in the dispute, Settling Defendants shall pay the sums due (with accrued interest) to the United States or the Navajo Nation, if Navajo Nation costs are disputed, within 10 days after the resolution of the dispute. If Settling Defendants prevail concerning any aspect of the contested costs, Settling Defendants shall pay that portion of the costs (plus associated accrued interest) for which they did not prevail to the United States or the Navajo Nation, if Navajo Nation costs are disputed, within 10 days after the resolution of the dispute. Settling Defendants shall be disbursed any balance of the escrow account. All payments to the United States under this Paragraph shall be made in accordance with ¶ 35.b. All payments to the Navajo Nation under this Paragraph shall be made in accordance with ¶ 35.c. The dispute resolution procedures set forth in this Paragraph in conjunction with the procedures set forth in Section XIII (Dispute Resolution) shall be the exclusive mechanisms for resolving disputes regarding Settling Defendants' obligation to reimburse the United States and the Navajo Nation for their Future Response Costs.

         37. Settling Defendants may contest the final accounting of the NNCERCLA Cyprus Amax/Western Nuclear Special Account issued under ¶ 33.d (Unused Amount) if they determine that the Navajo Nation has made a mathematical error. Such objection shall be made in writing within 30 days after receipt of the final accounting and must be sent to the Navajo Nation pursuant to Section XXI (Notices and Submissions). Any such objection shall specifically identify the alleged final mathematical error and the basis for objection. NNEPA will review the alleged mathematical error and either affirm the initial accounting or issue a corrected final accounting within 60 days. If a corrected final accounting is issued, NNEPA will take such action as may be necessary to correct the final disposition of unused amounts paid in accordance with ¶ 33.d (Unused Amount). If Settling Defendants disagree with NNEPA's decision, Settling Defendants may, within 10 days after receipt of the decision, appeal the decision to the Manager of the Waste Regulatory and Compliance Department for NNEPA. The Manager of the Waste Regulatory and Compliance Department will issue a final administrative decision resolving the dispute, which shall be binding upon Settling Defendants and shall not be subject to challenge by Settling Defendants pursuant to the dispute resolution provisions of this CD or in any other forum.

         38. Interest.

         In the event that any payment for Future Response Costs required under this Section is not made by the date required, Settling Defendants shall pay Interest on the unpaid balance. The Interest on Past Response Costs, NN Past Response Costs, and prepaid Future Response Costs shall begin to accrue on the Effective Date. The Interest on all subsequent Future Response Costs shall begin to accrue on the date of the bill. The Interest shall accrue through the date of Settling Defendants' payment. Payments of Interest made under this Paragraph shall be in addition to such other remedies or sanctions available to Plaintiffs by virtue of Settling Defendants' failure to make timely payments under this Section including, but not limited to, payment of stipulated penalties pursuant to ¶ 55 (Stipulated Penalty Amounts - Work).

         XI. INDEMNIFICATION AND INSURANCE

         39. Settling Defendants' Indemnification of the United States and the Navajo Nation.

         a. The United States and the Navajo Nation do not assume any liability by entering into this CD or by virtue of any designation of Settling Defendants as EPA's authorized representatives under Section 104(e) of CERCLA, 42 U.S.C. § 9604(e). Settling Defendants shall indemnify, save, and hold harmless the United States and the Navajo Nation and their officials, agents, employees, contractors, subcontractors, and representatives for or from any and all claims or causes of action arising from, or on account of, negligent or other wrongful acts or omissions of Settling Defendants, their officers, directors, employees, agents, contractors, subcontractors, and any persons acting on Settling Defendants' behalf or under their control, in carrying out activities pursuant to this CD, including, but not limited to, any claims arising from any designation of Settling Defendants as EPA's authorized representatives under Section 104(e) of CERCLA. Further, Settling Defendants agree to pay the United States and the Navajo Nation all costs incurred by the United States and the Navajo Nation, including, but not limited to, attorneys' fees and other expenses of litigation and settlement arising from, or on account of, claims made against the United States and the Navajo Nation based on negligent or other wrongful acts or omissions of Settling Defendants, their officers, directors, employees, agents, contractors, subcontractors, and any persons acting on their behalf or under their control, in carrying out activities pursuant to this CD. Neither the United States nor the Navajo Nation shall be held out as a party to any contract entered into by or on behalf of Settling Defendants in carrying out activities pursuant to this CD. Neither Settling Defendants nor any such contractor shall be considered an agent of the United States or the Navajo Nation.

         b. The United States and the Navajo Nation, respectively, shall give Settling Defendants notice of any claim for which the United States or the Navajo Nation plans to seek indemnification pursuant to this ¶ 39, and shall consult with Settling Defendants prior to settling such claim.

         40. Settling Defendants covenant not to sue and agree not to assert any claims or causes of action against the United States and the Navajo Nation, respectively, for damages or reimbursement or for set-off of any payments made or to be made to the United States or the Navajo Nation, arising from or on account of any contract, agreement, or arrangement between Settling Defendants and any person for performance of the Work, including, but not limited to, claims on account of construction delays. In addition, Settling Defendants shall indemnify, save and hold harmless the United States and the Navajo Nation with respect to any and all claims for damages or reimbursement arising from or on account of any contract, agreement, or arrangement between Settling Defendants and any person for performance of the Work, including, but not limited to, claims on account of construction delays.

         41. Insurance.

         No later than 15 days before commencing any on-site Work, Settling Defendants shall secure, and shall maintain until the first anniversary after issuance of Notice of Completion of Work pursuant to Section XXV, commercial general liability insurance with limits of $1 million, for any one occurrence, and automobile liability insurance with limits of $1 million, combined single limit, naming the United States and the Navajo Nation as additional insureds with respect to all liability arising out of the activities performed by or on behalf of Settling Defendants pursuant to this CD. In addition, for the duration of this CD, Settling Defendants shall satisfy, or shall ensure that their contractors or subcontractors satisfy, all applicable laws and regulations regarding the provision of worker's compensation insurance for all persons performing the Work on behalf of Settling Defendants in furtherance of this CD. Prior to commencement of the Work, Settling Defendants shall provide to EPA and the Navajo Nation certificates of such insurance and a copy of each insurance policy. Settling Defendants shall resubmit such certificates and copies of policies each year on the anniversary of the Effective Date. If Settling Defendants demonstrate by evidence satisfactory to EPA and the Navajo Nation that any contractor or subcontractor maintains insurance equivalent to that described above, or insurance covering the same risks but in a lesser amount, then, with respect to that contractor or subcontractor, Settling Defendants need provide only that portion of the insurance described above that is not maintained by the contractor or subcontractor.

         XII. FORCE MAJEURE

         42. “Force majeure, ” for purposes of this CD, is defined as any event arising from causes beyond the control of Settling Defendants, of any entity controlled by Settling Defendants, or of Settling Defendants' contractors that delays or prevents the performance of any obligation under this CD despite Settling Defendants' best efforts to fulfill the obligation. The requirement that Settling Defendants exercise “best efforts to fulfill the obligation” includes using best efforts to anticipate any potential force majeure and best efforts to address the effects of any potential force majeure (a) as it is occurring and (b) following the potential force majeure such that the delay and any adverse effects of the delay are minimized to the greatest extent possible. “Force majeure” does not include financial inability to complete the Work or failure to achieve the Performance Standards.

         43. If any event occurs or has occurred that may delay the performance of any obligation under this CD for which Settling Defendants intend or may intend to assert a claim of force majeure, Settling Defendants shall notify EPA's Project Coordinator orally or, in her absence, EPA's Alternate Project Coordinator or, in the event both of EPA's designated representatives are unavailable, the Director of the Superfund Division, EPA Region IX, within 48 hours of when Settling Defendants first knew that the event might cause a delay. In addition, Settling Defendants shall notify NNEPA's Project Coordinator orally or, in his or her absence, NNEPA's Alternate Project Coordinator or, in the event both NNEPA's designated representatives are unavailable, the Manager of the Waste Regulatory and Compliance Department for NNEPA. Within 5 days thereafter, Settling Defendants shall provide in writing to EPA and NNEPA an explanation and description of the reasons for the delay; the anticipated duration of the delay; all actions taken or to be taken to prevent or minimize the delay; a schedule for implementation of any measures to be taken to prevent or mitigate the delay or the effect of the delay; Settling Defendants' rationale for attributing such delay to a force majeure; and a statement as to whether, in the opinion of Settling Defendants, such event may cause or contribute to an endangerment to public health or welfare, or the environment. Settling Defendants shall include with any notice all available documentation supporting its claim that the delay was attributable to a force majeure. Settling Defendants shall be deemed to know of any circumstance of which Settling Defendants, any entity controlled by Settling Defendants, or Settling Defendants' contractors or subcontractors knew or should have known. Failure to comply with the above requirements regarding an event shall preclude Settling Defendants from asserting any claim of force majeure regarding that event, provided, however, that if EPA, despite the late or incomplete notice, is able to assess to its satisfaction whether the event is a force majeure under ¶ 42 and whether Settling Defendants have exercised their best efforts under ¶ 42, EPA may, in its unreviewable discretion, excuse in writing Settling Defendants' failure to submit timely or complete notices under this Paragraph.

         44. If EPA, after a reasonable opportunity for review and comment by NNEPA, agrees that the delay or anticipated delay is attributable to a force majeure, the time for performance of the obligations under this CD that are affected by the force majeure will be extended by EPA, after a reasonable opportunity for review and comment by NNEPA, for such time as is necessary to complete those obligations. An extension of the time for performance of the obligations affected by the force majeure shall not, of itself, extend the time for performance of any other obligation. If EPA, after a reasonable opportunity for review and comment by NNEPA, does not agree that the delay or anticipated delay has been or will be caused by a force majeure, EPA will notify Settling Defendants in writing of its decision. If EPA, after a reasonable opportunity for review and comment by NNEPA, agrees that the delay is attributable to a force majeure, EPA will notify Settling Defendants in writing of the length of the extension, if any, for performance of the obligations affected by the force majeure.

         45. If Settling Defendants elect to invoke the dispute resolution procedures set forth in Section XIII (Dispute Resolution) regarding EPA's decision, they shall do so no later than 15 days after receipt of EPA's notice. In any such proceeding, Settling Defendants shall have the burden of demonstrating by a preponderance of the evidence that the delay or anticipated delay has been or will be caused by a force majeure, that the duration of the delay or the extension sought was or will be warranted under the circumstances, that best efforts were exercised to avoid and mitigate the effects of the delay, and that Settling Defendants complied with the requirements of ¶¶ 42 and 43. If Settling Defendants carry this burden, the delay at issue shall be deemed not to be a violation by Settling Defendants of the affected obligation of this CD identified to EPA and the Court.

         46. The failure by EPA or NNEPA to timely complete any obligation under this CD or under the SOW is not a violation of this CD, provided, however, that if such failure prevents Settling Defendants from meeting one or more deadlines in the SOW, Settling Defendants may seek relief under this Section.

         XIII. DISPUTE RESOLUTION

         47. Unless otherwise expressly provided for in this CD, the dispute resolution procedures of this Section shall be the exclusive mechanism to resolve disputes regarding this CD. However, the procedures set forth in this Section shall not apply to actions by the United States or the Navajo Nation to enforce obligations of Settling Defendants that have not been disputed in accordance with this Section.

         48. A dispute shall be considered to have arisen when one Party sends the other Parties a written Notice of Dispute under this CD. Any dispute regarding this CD shall in the first instance be the subject of informal negotiations between the Parties. The period for informal negotiations shall not exceed 20 days from the time the dispute arises, unless it is modified by written agreement of the parties to the dispute.

         49. Statements of Position.

         a. In the event that the Parties cannot resolve a dispute by informal negotiations under the preceding Paragraph, then the position advanced by EPA shall be considered binding unless, within 14 days after the conclusion of the informal negotiation period, Settling Defendants invoke the formal dispute resolution procedures of this Section by serving on the United States and the Navajo Nation a written Statement of Position on the matter in dispute, including, but not limited to, any factual data, analysis, or opinion supporting that position and any supporting documentation relied upon by Settling Defendants. The Statement of Position shall specify Settling Defendants' position as to whether formal dispute resolution should proceed under ¶ 50 or 51.

         b. Within 30 days after receipt of Settling Defendants' Statement of Position, EPA will serve on Settling Defendants its Statement of Position, including, but not limited to, any factual data, analysis, or opinion supporting that position and all supporting documentation relied upon by EPA. EPA's Statement of Position shall include a statement as to whether formal dispute resolution should proceed under ¶ 50 (Record Review) or 51. Within 30 days after receipt of EPA's Statement of Position, Settling Defendants may submit a Reply.

         c. If there is disagreement between EPA and Settling Defendants as to whether dispute resolution should proceed under ¶ 50 (Record Review) or 51, the parties to the dispute shall follow the procedures set forth in the paragraph determined by EPA to be applicable. However, if Settling Defendants ultimately appeal to the Court to resolve the dispute, the Court shall determine which paragraph is applicable in accordance with the standards of applicability set forth in ¶¶ 50 and 51.

         50. Record Review.

         Formal dispute resolution for disputes pertaining to the selection or adequacy of any response action and all other disputes that are accorded review on the administrative record under applicable principles of administrative law shall be conducted pursuant to the procedures set forth in this Paragraph. For purposes of this Paragraph, the adequacy of any response action includes, without limitation, the adequacy or appropriateness of plans, procedures to implement plans, or any other items requiring approval by EPA under this CD, and the adequacy of the performance of response actions taken pursuant to this CD.

         a. An administrative record of the dispute shall be maintained by EPA and shall contain all statements of position, including supporting documentation, submitted pursuant to this Section. When appropriate, EPA may allow submission of supplemental statements of position by the parties to the dispute.

         b. The Director of the Superfund Division, EPA Region IX, will issue a final administrative decision resolving the dispute based on the administrative record described in ¶ 50.a. This decision shall be binding upon Settling Defendants, subject only to the right to seek judicial review pursuant to ¶¶ 50.c and 50.d.

         c. Any administrative decision made by EPA pursuant to ¶ 50.b shall be reviewable by this Court, provided that a motion for judicial review of the decision is filed by Settling Defendants with the Court and served on all Parties within 30 days after receipt of EPA's decision. The motion shall include a description of the matter in dispute, the efforts made by the Parties to resolve it, the relief requested, and the schedule, if any, within which the dispute must be resolved to ensure orderly implementation of this CD. The United States may file a response to Settling Defendants' motion within 30 days.

         d. In proceedings on any dispute governed by this Paragraph, Settling Defendants shall have the burden of demonstrating that the decision of the Superfund Division Director is arbitrary and capricious or otherwise not in accordance with law. Judicial review of EPA's decision shall be on the administrative record compiled pursuant to ¶ 50.a.

         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 administrative record under applicable principles of administrative law shall be governed by this Paragraph.

         a. The Director of the Superfund Division, EPA Region IX, will issue a final decision resolving the dispute based on the statements of position and reply, if any, served under ¶ 49. The Superfund Division Director's decision shall be binding on Settling Defendants unless, within 30 days after receipt of the decision, Settling Defendants file with this Court and serve on the Parties a motion for judicial review of the decision setting forth the matter in dispute, the efforts made by the Parties to resolve it, the relief requested, and the schedule, if any, within which the dispute must be resolved to ensure orderly implementation of the CD. The United States may file a response to Settling Defendants' motion within 30 days.

         b. Notwithstanding ¶ J (CERCLA § 113(j) record review of Work) of Section I (Background), judicial review of any dispute governed by this Paragraph shall be governed by applicable principles of law.

         52. The invocation of formal dispute resolution procedures under this Section does not extend, postpone, or affect in any way any obligation of Settling Defendants under this CD, except as provided in ¶ 36 (Contesting Future Response Costs), as agreed by EPA, after a reasonable opportunity for review and comment by NNEPA, or as determined by the Court. Stipulated penalties with respect to the disputed matter shall continue to accrue, but payment shall be stayed pending resolution of the dispute, as provided in ¶ 62. Notwithstanding the stay of payment, stipulated penalties shall accrue from the first day of noncompliance with any applicable provision of this CD. In the event that Settling Defendants do not prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in Section XIV (Stipulated Penalties).

         53. Disputes Regarding Future Response Costs Owed to the Navajo Nation.

         Disputes arising under this CD between the Navajo Nation and Settling Defendants that relate to Future Response Costs owed to the Navajo Nation, including assessment of stipulated penalties by the Navajo Nation regarding such Future Response Costs, shall not be considered disputes on the record pursuant to ¶ 50 and shall be governed in the following manner. The procedures for resolving the disputes mentioned in this Paragraph shall be the same as provided for in ¶¶ 48 to 49 and ¶¶ 51 to 52, except that ¶ 49.c (provision regarding whether to proceed under ¶ 50 or 51) shall not apply; each reference to EPA shall read as a reference to NNEPA; each reference to NNEPA or the Navajo Nation shall be ignored; each reference to the Director of the Superfund Division, EPA Region IX, shall read as a reference to the Director of NNEPA; and each reference to the United States shall be read as a reference to the Navajo Nation. In addition, for purposes of this Paragraph only, references to “informal negotiations” in ¶ 48 shall mean the Navajo informal dispute resolution procedure, known as the “talking things out” approach, attached to this CD as Appendix E.

         XIV. STIPULATED PENALTIES

         54. Settling Defendants shall be liable for stipulated penalties in the amounts set forth in ¶¶ 55 and 56 to both the United States and the Navajo Nation for failure to comply with the requirements of this CD specified below, unless excused under Section XII (Force Majeure). “Compliance” by Settling Defendants shall include completion of all activities and obligations, including payments, required under this CD, or any deliverable approved under this CD, in accordance with all applicable requirements of law, this CD, the SOW, and any deliverables approved under this CD and within the specified time schedules established by and approved under this CD.

         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:

Period of Noncompliance

Penalty Per Violation Per Day Due to the United States

Penalty Per Violation Per Day Due to the Navajo Nation

1st through 14th day

$ 1, 250

$ 1, 250

15th through 30th day

$ 2, 500

$ 2, 500

31st day and beyond

$ 3, 750

$ 3, 750

         b. 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:

Period of Noncomplianc

Penalty Per Violation Per Day Due to the United States

Penalty Per Violation Per Day Due to the Navajo Nation

1st through 14th day

$ 500

$ 500

15th through 30th day

$ 1, 250

$ 1, 250

31st day and beyond

$ 2, 500

$ 2, 500

         57. 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 issues a final decision regarding such dispute. Nothing in this CD shall prevent the simultaneous accrual of separate penalties for separate violations of this CD.

         59. Following EPA's determination that Settling Defendants have failed to comply with a requirement of this CD, EPA may give Settling Defendants written notification of the same and describe the noncompliance. EPA may send Settling Defendants a written demand for payment of the penalties. However, penalties shall accrue as provided in the preceding Paragraph regardless of whether EPA has notified Settling Defendants of a violation.

         60. Following NNEPA's determination that Settling Defendants have failed to comply with a requirement of this CD that pertains to Future Response Costs owed to the Navajo Nation, NNEPA may give Settling Defendants written notification of the same and describe the noncompliance. NNEPA may send Settling Defendants a written demand for payment of the penalties. However, penalties shall accrue as provided in ¶ 58 regardless of whether NNEPPA has notified Settling Defendants of a violation.

         61. All penalties accruing under this Section shall be due and payable to the United States and the Navajo Nation within 30 days after Settling Defendants' receipt from EPA or NNEPA, as applicable, of a demand for payment of the penalties, unless Settling Defendants invoke the Dispute Resolution procedures under Section XIII (Dispute Resolution) within the 30-day period. All payments to the United States under this Section shall indicate that the payment is for stipulated penalties and shall be made in accordance with ¶ 35.b. All payments to the Navajo Nation under this Section shall indicate that payment is for stipulated penalties and shall be made in accordance with ¶ 35.c.

         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 penalties determined to be owed shall be paid to EPA and/or NNEPA within 15 days after the date of the agreement or the receipt of EPA's or NNEPA's decision or order;

         b. If the dispute is appealed to this Court and the United States and/or the Navajo Nation prevails in whole or in part, Settling Defendants shall pay all accrued penalties determined by the Court to be owed to EPA and/or NNEPA within 60 days after receipt of the Court's decision or order, except as provided in ¶ 62.c;

         c. If the District Court's decision is appealed by any Party, Settling Defendants shall pay all accrued penalties determined by the District Court to be owed to the United States and/or the Navajo Nation into an interest-bearing escrow account, established at a duly chartered bank or trust company that is insured by the FDIC, within 60 days after receipt of the Court's decision or order. Penalties shall be paid into this account as they continue to accrue, at least every 60 days. Within 15 days after receipt of the final appellate court decision, the escrow agent shall pay the balance of the account to the prevailing party or parties.

         63. If Settling Defendants fail to pay stipulated penalties when due, Settling Defendants shall pay Interest on the unpaid stipulated penalties as follows: (a) if Settling Defendants have timely invoked dispute resolution such that the obligation to pay stipulated penalties has been stayed pending the outcome of dispute resolution, Interest shall accrue from the date stipulated penalties are due pursuant to ¶ 62 until the date of payment; and (b) if Settling Defendants fail to timely invoke dispute resolution, Interest shall accrue from the date of demand under ¶ 61 until the date of payment. If Settling Defendants fail to pay stipulated penalties and Interest when due, the United States or the Navajo Nation may institute proceedings to collect the penalties and Interest.

         64. The payment of penalties and Interest, if any, shall not alter in any way Settling Defendants' obligation to complete the performance of the Work required under this CD.

         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 remedies or sanctions available by virtue of Settling Defendants' violation of this CD or of the statutes and regulations upon which it is based, including, but not limited to, penalties pursuant to Section 122(l) of CERCLA, 42 U.S.C. § 9622(l), provided, however, that the United States shall not seek civil penalties pursuant to Section 122(l) of CERCLA for any violation for which a stipulated penalty is provided in this CD, except in the case of a willful violation of this CD.

         66. Notwithstanding any other provision of this Section, the United States and Navajo Nation may, in either Party's unreviewable discretion, waive any portion of stipulated penalties that have accrued to that Party pursuant to this CD.

         XV. COVENANTS BY THE UNITED STATES

         67. Covenants for Settling Defendants by United States.

         Except as provided in ¶69 (United States Reservations of Rights), the United States covenants not to sue or to take administrative action against Settling Defendants pursuant to Sections 106 and 107(a) of CERCLA for the Work, Past Response Costs, Future Response Costs, Past Settling Defendants Response Costs, and Future Settling Defendants Response Costs. These covenants shall take effect upon the Effective Date. These covenants are conditioned upon the satisfactory performance by Settling Defendants of their obligations under this CD. These covenants extend only to Settling Defendants and do not extend to any other person.

         68. Covenant for SFAs by United States.

         Except as provided in ¶ 69 (United States Reservations of Rights), EPA covenants not to take administrative action against SFAs pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a), and Section 7003 of RCRA, 42 U.S.C. § 6973, for the Work, Past Response Costs, and Future Response Costs. EPA's covenant shall take effect upon the Effective Date. EPA's covenant is conditioned upon the satisfactory performance by SFAs of their obligations under this CD. EPA's covenant extends only to SFAs and does not extend to any other person.

         69. United States Reservation of Rights.

         The United States reserves, and this CD is without prejudice to, all rights against Settling Defendants, and EPA reserves, and this CD is without prejudice to, all rights against SFAs, with respect to all matters not expressly included within the United States' covenants. Notwithstanding any other provision of this CD, the United States reserves all rights against Settling Defendants, and EPA reserves, and this CD is without prejudice to, all rights against SFAs, with respect to:

a. liability for failure by Settling Defendants or SFAs to meet a requirement of this CD;
b. liability based on the ownership of any of the Mine Sites by Settling Defendants or SFAs when such ownership commences after signature of this CD by Settling Defendants or SFAs;
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 Settling Defendants and does not arise solely from Settling Defendants' performance of the Work and liability based on the operation of any of the Mine Sites by SFAs when such operation commences after signature of this CD by SFAs;
d. liability based on Settling Defendants' or SFAs' transportation, treatment, storage, or disposal, or arrangement for transportation, treatment, storage, or disposal of Waste Material at or in connection with any of the Mine Sites, other than as provided in an action memorandum or record of decision issued for a Mine Site or Mine Sites, the Work, or otherwise ordered by EPA, after signature of this CD by Settling Defendants or SFAs;
e. liability for costs not included within the definition of Future Response Costs;
f. liability for performance of response actions other than the Work;
g. criminal liability;
h. liability for violations of federal, tribal, or state law that occur during or after implementation of the Work;
i. liability, prior to achievement of Performance Standards, for additional response actions that EPA determines are necessary to achieve and maintain Performance Standards or to carry out and maintain the effectiveness of any remedy set forth in an action memorandum or a record of decision issued for a Mine Site or Mine Sites, but that cannot be required pursuant to ¶ 14 (Modification of SOW or Related Deliverables);
j. liability for damages for injury to, destruction of, or loss of natural resources, and for the costs of any natural resource damage assessments;
k. liability arising from the past, present, or future disposal, release, or threat of release of Waste Material outside of the Mine Sites; and
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 opportunity for review and comment by NNEPA, that Settling Defendants: (1) have ceased implementation of any portion of the Work; (2) are seriously or repeatedly deficient or late in their performance of the Work; or (3) are implementing the Work in a manner that may cause an endangerment to human health or the environment, EPA may issue a written notice (“Work Takeover Notice”) to Settling Defendants. Any Work Takeover Notice issued by EPA will specify the grounds upon which such notice was issued and will provide Settling Defendants a period of 21 days within which to remedy the circumstances giving rise to EPA's issuance of such notice.

         b. If, after expiration of the 21-day notice period specified in ¶ 70.a, Settling Defendants have not remedied to EPA's satisfaction the circumstances giving rise to EPA's issuance of the relevant Work Takeover Notice, EPA may at any time thereafter assume the performance of all or any portion(s) of the Work as EPA deems necessary (“Work Takeover”). EPA will notify Settling Defendants in writing (which writing may be electronic) if EPA determines that implementation of a Work Takeover is warranted under this ¶ 70.b. Funding of Work Takeover costs is addressed under ¶ 26 (Access to Financial Assurance).

         c. If EPA implements a Work Takeover pursuant to Paragraph 70, DOJ, on behalf of the SFAs, shall take steps, as described in this Paragraph, to cause the remaining Trust Assets to be paid towards the Work. Following discussion with EPA, DOJ may, at an appropriate time, either: (1) direct the trustee for the U.S. Four Corners Uranium Mines Trust Account (“Trustee”) to, pursuant to a schedule to be agreed upon with EPA, but not more often than monthly, transfer funds to the Cyprus Amax/Western Nuclear Mine Sites Special Account to reimburse EPA for its costs incurred in conducting or financing response actions at or in connection with the Mine Sites, until either EPA terminates the Work Takeover or the Trust Account is exhausted; or (2) direct the Trustee (or successor) to perform the Work under the CD, in accordance with the SOW, until either EPA terminates the Work Takeover or the Trust Account is exhausted.

         d. If DOJ, on behalf of the SFAs, directs the Trustee to perform the Work, DOJ shall take the necessary steps to convert the Trust into an environmental response trust capable of performing the Work. The provisions of Paragraphs 70.c and 70.d to so convert the Trust (which may include modification of the Trust Agreement or termination of the Trust and Trust Agreement and creation of a successor Trust) shall supersede any contrary provisions in the Trust Agreement regarding modification or termination. Further, any modifications to the Trust Agreement or any new trust agreement created pursuant to Paragraphs 70.c and 70.d shall not require the agreement or signature of the Trustee or Settling Defendants. The Navajo Nation shall be designated a beneficiary of the environmental response trust. DOJ, however, shall have the authority to determine what powers and rights the environmental response trust will accord each beneficiary and such powers and rights need not be the same for each beneficiary, provided that such authority shall not affect the trustee's fiduciary duties to the Navajo Nation as a beneficiary of the environmental response trust. Finally, with the exceptions of Section XI (indemnification and insurance) and Section XIV (stipulated penalties), the provisions of this Consent Decree and the SOW governing performance of the Work shall apply to the environmental response trust.

         e. Notwithstanding anything to the contrary in this Paragraph, only DOJ, consistent with Paragraph 4.2.2 of the Trust Agreement, shall have the authority to act pursuant to Paragraphs 70.c and 70.d.

         f. Settling Defendants may invoke the procedures set forth in ¶ 50 (Record Review) to dispute EPA's implementation of a Work Takeover under ¶ 70.b. However, notwithstanding Settling Defendants' invocation of such dispute resolution procedures, and during the pendency of any such dispute, EPA may in its sole discretion commence and continue a Work Takeover under ¶ 70.b until the earlier of (1) the date that Settling Defendants remedy, to EPA's satisfaction, the circumstances giving rise to EPA's issuance of the relevant Work Takeover Notice, or (2) the date that a final decision is rendered in accordance with ¶ 50 (Record Review) requiring EPA to terminate such Work Takeover.

         71. Notwithstanding any other provision of this CD, the United States and the Navajo Nation retain all authority and reserve all rights to take ...


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