ORDER

DOUGLAS L. RAYES, 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

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 non-interference 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.

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.

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:

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.

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.

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.

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

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:

b. Compliance Milestones.

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:

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:

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:

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 any and all response actions authorized by law.

XVI. COVENANTS BY THE NAVAJO NATION

72. Covenants for Settling Defendants by the Navajo Nation. Except as provided in ¶ 75 (Navajo Nation Reservations of Rights), the Navajo Nation covenants not to sue or to take administrative action against Settling Defendants pursuant to Section 107(a) of CERCLA and Sections 2403, 2501, and 2503 of NNCERCLA for the Work, NN Past Response Costs, and Future Response Costs owed to the Navajo Nation. 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.

73. Covenants for SFAs by the Navajo Nation. Except as provided in ¶ 75 (Navajo Nation Reservations of Rights), the Navajo Nation covenants not to sue or to take administrative action against SFAs pursuant to Section 107(a) of CERCLA and Sections 2403, 2501, and 2503 of NNCERCLA for the Work, NN Past Response Costs, and Future Response Costs owed to the Navajo Nation. These covenants shall take effect upon the Effective Date. These covenants are conditioned upon the satisfactory performance by SFAs of their obligations under this CD. These covenants extend only to SFAs and do not extend to any other person.

74. Navajo Nation Use of Residual Trust Assets. Following Certification of Work Completion pursuant to ¶ 104, if any residual funds from the Trust Account are paid to NNEPA, NNEPA shall use the funds for the sole purpose of performing response actions under CERCLA, not inconsistent with the NCP, at abandoned uranium mines on Navajo Nation lands where no viable non-Federal potentially responsible party has been identified. Effective upon receipt by NNEPA of any such residual funds, the Navajo Nation forever releases, discharges, covenants, and agrees not to assert (by way of the commencement of an action or in any other fashion) any and all claims, causes of action, suits or demands of any kind whatsoever, in law or in equity, that the Navajo Nation may have had, or hereafter has, against the United States, including, but not limited to, claims under CERLCA Sections 107 and 113, 42 U.S.C. §§ 9607 and 9613, relating to any work performed as part of response actions at any abandoned uranium mines using residual funds from the Trust Assets pursuant to this Paragraph.

75. Navajo Nation Reservation of Rights. The Navajo Nation reserves, and this CD is without prejudice to, all rights against Settling Defendants and SFAs with respect to all matters not expressly included within the Navajo Nation's covenants. Notwithstanding any other provision of this CD, the Navajo Nation reserves, and this CD is without prejudice to, all rights against Settling Defendants, and the Navajo Nation reserves, and this CD is without prejudice to, all rights against SFAs, with respect to:

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 owed to the Navajo Nation;

f. liability for performance of response action other than the Work;

g. liability for violations of federal or Navajo law that occur during or after implementation of the Work;

h. liability for damages for injury to, destruction of, or loss of natural resources, and for the costs of any natural resource damage assessments; and

i. liability arising from the past, present, or future disposal, release, or threat of release of Waste Material outside of the Mine Sites.

XVII. COVENANTS BY SETTLING DEFENDANTS AND SFAS

76. Covenants by Settling Defendants. Subject to the reservations in ¶¶ 79 and 80, Settling Defendants covenant not to sue and agree not to assert any claims or causes of action against the United States or the Navajo Nation with respect to the Work, Past Response Costs, NN Past Response Costs, Future Response Costs, Past Settling Defendants Response Costs, Future Settling Defendants Response Costs, and this CD, including, but not limited to:

a. any direct or indirect claim for reimbursement from the EPA Hazardous Substance Superfund through CERCLA §§ 106(b)(2), 107, 111, 112 or 113, or from the NNCERCLA Hazardous Substances Fund pursuant to NNCERCLA, 4 N.N.C. §§ 2403(E), 2501 (as modified by § 2502(B)), 2503, or 2701 (to the extent applicable), or any other provision of law;

b. any claims under CERCLA §§ 107 or 113, RCRA Section 7002(a), 42 U.S.C. § 6972(a), NNCERCLA, 4 N.N.C. § 2501 (as modified by § 2502(B)), or 2503, or state law regarding the Work, past response actions regarding the Mine Sites, Past Response Costs, NN Past Response Costs, Future Response Costs, Past Settling Defendants Response Costs, Future Settling Defendants Response Costs, and this CD;

c. any claims arising out of response actions at or in connection with the Mine Sites, including any claim under the United States Constitution, the Tucker Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412, or at common law; or

d. any direct or indirect claim for return of unused amounts from the NNCERCLA Cyprus Amax/Western Nuclear Sites Special Account, except for unused amounts that NNEPA determines shall be returned to Settling Defendants in accordance with ¶ 33.d (Unused Amount).

77. This CD shall not have any effect on claims or causes of action that Settling Defendants may have pursuant to CERCLA against the Navajo Nation or any of its agencies or departments, other than NNEPA, based on the alleged status of the Navajo Nation or any of its agencies or departments, other than NNEPA, as a potentially responsible party pursuant to CERCLA, 42 U.S.C. § 9607(a), relating to the Work, Past Response Costs, NN Past Response Costs, Future Response Costs, Past Settling Defendants Response Costs, and Future Settling Defendants Response Costs, nor shall it have any effect on claims or causes of action against the Navajo Nation or any of its agencies or departments, other than NNEPA, for contractual indemnification, or for other contractual remedies, that Settling Defendants may have relating to the Work, Past Response Costs, NN Past Response Costs, Past Settling Defendants Response Costs, Future Response Costs, and Future Settling Defendants Response Costs. Notwithstanding the foregoing sentence, the Navajo Nation, including its agencies and departments, has not waived its sovereign immunity, does not agree that it has any liability under CERCLA due to its status as a federally recognized Indian tribe, nor does it agree that it has any liability for claims or causes of action for contractual indemnification or other contractual remedies that Settling Defendants may have relating to the Work, Past Response Costs, NN Past Response Costs, Future Response Costs, and Future Settling Defendants Response Costs.

78. Covenant by SFAs. SFAs agree not to assert any direct or indirect claim for reimbursement from the EPA Hazardous Substance Superfund through CERCLA §§ 106(b)(2), 107, 111, 112, or 113, or any other provision of law with respect to the Work, past response actions regarding the Mine Sites, Past Response Costs, NN Past Response Costs, Future Response Costs, Past Settling Defendants Response Costs, Future Settling Defendants Response Costs, and this CD. This covenant does not preclude demand for reimbursement from the Superfund of costs incurred by a SFA in the performance of its duties (other than pursuant to this CD) as lead or support agency under the NCP.

79. Except as provided in ¶¶ 82 (Waiver of Claims by Settling Defendants) and 88 (Res Judicata and Other Defenses), the covenants in this Section shall not apply if the United States or the Navajo Nation brings a cause of action or issues an order pursuant to any of the reservations in Section XV (Covenants by the United States) or Section XVI (Covenants by the Navajo Nation), other than in ¶¶ 69.a (claims by United States for failure to meet a requirement of the CD), 69.g (criminal liability prosecuted by the United States), 69.h (violations of federal law during or after implementation of the Work), 75.a (claims by Navajo Nation for a failure to meet a requirement of the CD) and 75.g (violations of federal or Navajo law during or after implementation of the Work), but only to the extent that Settling Defendants' claims arise from the same response action, response costs, or damages that the United States or the Navajo Nation is seeking pursuant to the applicable reservation.

80. Settling Defendants reserve, and this CD is without prejudice to, claims against the United States, subject to the provisions of Chapter 171 of Title 28 of the United States Code, and brought pursuant to any statute other than CERCLA or RCRA and for which the waiver of sovereign immunity is found in a statute other than CERCLA or RCRA, for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the United States, as that term is defined in 28 U.S.C. § 2671, while acting within the scope of his or her office or employment under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. However, the foregoing shall not include any claim based on EPA's selection of response actions, or the oversight or approval of Settling Defendants' deliverables or activities. Settling Defendants also reserve, and this CD is without prejudice to, contribution claims against SFAs in the event any claim is asserted by the United States or the Navajo Nation against Settling Defendants pursuant to any of the reservations in Sections XV and XVI (Covenants by Plaintiffs) other than in ¶¶ 69.a (claims for failure to meet a requirement of the CD), 69.g (criminal liability), 69.h (violations of federal/state law during or after implementation of the Work), 75.a (claims by Navajo Nation for a failure to meet a requirement of the CD) and 75.g (violations of federal or Navajo law during or after implementation of the Work), but only to the extent that Settling Defendants' claims arise from the same response action, response costs, or damages that the United States or the Navajo Nation is seeking pursuant to the applicable reservation.

81. Nothing in this CD shall be deemed to constitute approval or preauthorization of a claim within the meaning of Section 111 of CERCLA, 42 U.S.C. § 9611, or 40 C.F.R. § 300.700(d).

82. Waiver of Claims by Settling Defendants.

a. Settling Defendants agree not to assert any claims and to waive all claims or causes of action (including but not limited to claims or causes of action under Sections 107(a) and 113 of CERCLA and NNCERCLA, 4 N.N.C. §§2501-2503) that they may have:

b. Exceptions to Waivers.

XVIII. EFFECT OF SETTLEMENT; CONTRIBUTION

83. Except as provided in ¶ 82 (Waiver of Claims by Settling Defendants), nothing in this CD shall be construed to create any rights in, or grant any cause of action to, any person not a Party to this CD. Except as provided in Section XVII (Covenants by Settling Defendants and SFAs), each of the Parties expressly reserves any and all rights (including, but not limited to, pursuant to Section 113 of CERCLA, 42 U.S.C. § 9613), defenses, claims, demands, and causes of action that each Party may have with respect to any matter, transaction, or occurrence relating in any way to the Mine Sites against any person not a Party hereto. Nothing in this CD diminishes the right of the United States, pursuant to Section 113(f)(2) and (3) of CERCLA, 42 U.S.C. § 9613(f)(2)-(3), to pursue any such persons to obtain additional response costs or response actions and to enter into settlements that give rise to contribution protection pursuant to Section 113(f)(2).

84. The Parties agree, and by entering this CD this Court finds, that this CD constitutes a judicially approved settlement pursuant to which Settling Defendants and each Settling Federal Agency has, as of the Effective Date, resolved liability to the United States within the meaning of Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), and is entitled, as of the Effective Date, to protection from contribution actions or claims as provided by Section 113(f)(2) of CERCLA, or as may be otherwise provided by law, for the "matters addressed" in this CD. The "matters addressed" in this CD are the Work, Past Response Costs, NN Past Response Costs, Future Response Costs, Past Settling Defendants Response Costs, and Future Settling Defendants Response Costs.

85. The Parties further agree, and by entering this CD this Court finds, that the complaint filed by the United States in this action is a civil action within the meaning of Section 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(1), and that this CD constitutes a judicially approved settlement pursuant to which each Settling Defendant and each Settling Federal Agency has, as of the Effective Date, resolved liability to the United States within the meaning of Section 113(f)(3)(B) of CERCLA, 42 U.S.C. § 9613(f)(3)(B).

86. Settling Defendants shall, with respect to any suit or claim brought by them for matters related to this CD, notify the United States and the Navajo Nation in writing no later than 45 days prior to the initiation of such suit or claim.

87. Settling Defendants shall, with respect to any suit or claim brought against them for matters related to this CD, notify in writing the United States and the Navajo Nation within 10 days after service of the complaint on Settling Defendants. In addition, Settling Defendants shall notify the United States and the Navajo Nation within 10 days after service or receipt of any Motion for Summary Judgment and within 10 days after receipt of any order from a court setting a case for trial.

88. Res Judicata and Other Defenses. In any subsequent administrative or judicial proceeding initiated by the United States or the Navajo Nation for injunctive relief, recovery of response costs, or other appropriate relief relating to the Mine Sites, Settling Defendants (and, with respect to a Navajo Nation action, SFAs) shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon any contention that the claims raised by the United States or the Navajo Nation in the subsequent proceeding were or should have been brought in the instant case; provided, however, that nothing in this Paragraph affects the enforceability of the covenants not to sue set forth in Sections XV (Covenants by the United States) and XVI (Covenants by the Navajo Nation).

XIX. ACCESS TO INFORMATION

89. Settling Defendants shall provide to EPA and NNEPA, upon request, copies of all records, reports, documents, and other information (including records, reports, documents, and other information in electronic form) (referred to collectively in this Section and Section XX as "Records") within Settling Defendants' possession or control or that of their contractors or agents relating to activities at the Mine Sites or to the implementation of this CD, including, but not limited to, sampling, analysis, chain of custody records, manifests, trucking logs, receipts, reports, sample traffic routing, correspondence, or other documents or information regarding the Work. Settling Defendants shall also make available to EPA and NNEPA, for purposes of investigation, information gathering, or testimony, their employees, agents, or representatives with knowledge of relevant facts concerning the performance of the Work.

90. Privileged and Protected Claims.

a. Settling Defendants may assert that all or part of a Record requested by Plaintiffs is privileged or protected as provided under federal law, in lieu of providing the Record, provided Settling Defendants comply with ¶ 90.b, and except as provided in ¶ 90.c.

b. If Settling Defendants assert a claim of privilege or protection, they shall provide Plaintiffs with the following information regarding such Record: its title; its date; the name, title, affiliation (e.g., company or firm), and address of the author, of each addressee, and of each recipient; a description of the Record's contents; and the privilege or protection asserted. If a claim of privilege or protection applies only to a portion of a Record, Settling Defendants shall provide the Record to Plaintiffs in redacted form to mask the privileged or protected portion only. Settling Defendants shall retain all Records that they claim to be privileged or protected until Plaintiffs have had a reasonable opportunity to dispute the privilege or protection claim and any such dispute has been resolved in Settling Defendants' favor.

c. Settling Defendants may make no claim of privilege or protection regarding: (1) any data regarding the Mine Sites, including, but not limited to, all sampling, analytical, monitoring, hydrogeologic, scientific, chemical, radiological or engineering data, or the portion of any other Record that evidences conditions at or around the Mine Sites; or (2) the portion of any Record that Settling Defendants are required to create or generate pursuant to this CD.

91. Business Confidential Claims. Settling Defendants may assert that all or part of a Record provided to Plaintiffs under this Section or Section XX (Retention of Records) is business confidential to the extent permitted by and in accordance with Section 104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), 40 C.F.R. § 2.203(b), and the Navajo Nation Privacy Act, 2 N.N.C. §§ 83(C) & 85(A)(19). Settling Defendants shall segregate and clearly identify all Records or parts thereof submitted under this CD for which Settling Defendants assert business confidentiality claims. Records submitted to EPA determined to be confidential by EPA will be afforded the protection specified in 40 C.F.R. Part 2, Subpart B. If no claim of confidentiality accompanies Records when they are submitted to EPA and the Navajo Nation, or if EPA has notified Settling Defendants that the Records are not confidential under the standards of Section 104(e)(7) of CERCLA or 40 C.F.R. Part 2, Subpart B, the public may be given access to such Records without further notice to Settling Defendants.

92. If relevant to the proceeding, the Parties agree that validated sampling or monitoring data generated in accordance with the SOW and reviewed and approved by EPA shall be admissible as evidence, without objection, in any proceeding under this CD.

93. Notwithstanding any provision of this CD, Plaintiffs retain all of their information-gathering and inspection authorities and rights, including enforcement actions related thereto, under CERCLA, RCRA, NNCERCLA, and any other applicable statutes or regulations.

XX. RETENTION OF RECORDS

94. Until 10 years after EPA's Notice of Completion of Work under Section XXV, Settling Defendants shall preserve and retain all non-identical copies of Records (including Records in electronic form) now in their possession or control or that come into their possession or control that relate in any manner to their liability under CERCLA with respect to the Mine Sites, provided, however, that Settling Defendants must retain, in addition, all Records that relate to the liability of any other person under CERCLA with respect to the Mine Sites. Settling Defendants must also retain, and instruct their contractors and agents to preserve, for the same period of time specified above all non-identical copies of the last draft or final version of any Records (including Records in electronic form) now in their possession or control or that come into their possession or control that relate in any manner to the performance of the Work, provided, however, that Settling Defendants (and their contractors and agents) must retain, in addition, copies of all data generated during the performance of the Work and not contained in the aforementioned Records required to be retained. Each of the above Record retention requirements shall apply regardless of any corporate retention policy to the contrary.

95. The United States acknowledges that each SFA: (a) is subject to all applicable federal record retention laws, regulations, and policies; and (b) has certified that it has fully complied with any and all EPA requests for information regarding the Mine Sites pursuant to Sections 104(e) and 122(e)(3)(B) of CERCLA, 42 U.S.C. §§ 9604(e) and 9622(e)(3)(B), and Section 3007 of RCRA, 42 U.S.C. § 6927.

96. At the conclusion of this Record retention period, Settling Defendants shall notify the United States and the Navajo Nation at least 90 days prior to the destruction of any such Records, and, upon request by the United States or the Navajo Nation, and except as provided in ¶ 90 (Privileged and Protected Claims), Settling Defendants shall deliver any such Records to EPA or NNEPA.

97. Each Settling Defendant certifies that, to the best of its knowledge and belief, after thorough inquiry, it has not altered, mutilated, discarded, destroyed, or otherwise disposed of any Records (other than identical copies) relating to its potential liability regarding the Mine Sites since notification of potential liability by the United States or the Navajo Nation and that it has fully complied with any and all EPA and NNEPA requests for information regarding the Mine Sites pursuant to Sections 104(e) and 122(e)(3)(B) of CERCLA, 42 U.S.C. §§ 9604(e) and 9622(e)(3)(B), and Section 3007 of RCRA, 42 U.S.C. § 6927, and NNCERCLA §§ 2301 and 2504(B)(3)(b).

98. Until 10 years after EPA's Notice of Completion of Work under Section XXV, NNEPA and NNDOJ shall preserve and retain all non-identical copies of Records (including Records in electronic form) now in their possession or control or that come into their possession or control that relate in any manner to the performance of the Work and, in addition, must retain copies of all data generated during the performance of the Work that are not already contained in those Records. At the conclusion of this Record retention period, NNEPA and NNDOJ shall each notify the United States at least 90 days prior to the destruction of any such Records and, upon request by the United States and except as provided in ¶ 90 (Privileged and Protected Claims), shall deliver any such Records to EPA.

XXI. NOTICES AND SUBMISSIONS

99. All approvals, consents, deliverables, modifications, notices, notifications, objections, proposals, reports, and requests specified in this CD must be in writing unless otherwise specified. Whenever, under this CD, notice is required to be given, or a report or other document is required to be sent, by one Party to another, it must be directed to the person(s) specified below at the address(es) specified below. Any Party may change the person and/or address applicable to it by providing notice of such change to all Parties. All notices under this Section are effective upon receipt, unless otherwise specified. Notices required to be sent to EPA, and not to the United States, should not be sent to DOJ. Except as otherwise provided, notice to a Party by email (if that option is provided below) or by regular mail in accordance with this Section satisfies any notice requirement of the CD regarding such Party.

XXII. RETENTION OF JURISDICTION

100. This Court retains jurisdiction over both the subject matter of this CD and Settling Defendants for the duration of the performance of the terms and provisions of this CD for the purpose of enabling any of the Parties to apply to the Court at any time for such further order, direction, and relief as may be necessary or appropriate for the construction or modification of this CD, or to effectuate or enforce compliance with its terms, or to resolve disputes in accordance with Section XIII (Dispute Resolution).

XXIII. APPENDICES

101. The following appendices are attached to and incorporated into this CD:

"Appendix A" is the list of 94 Mine Sites where response actions are required under this Consent Decree.

"Appendix B" is the list of 23 abandoned uranium mines on Navajo Nation lands at which Vanadium Corporation of America was historically involved in mining activities and which are included in the Tronox Incorporated bankruptcy proceeding referenced in Paragraph F. No work is required at those mines under this Consent Decree.

"Appendix D" is the Form of Financial Assurance.

"Appendix E" is the Navajo Informal Dispute Resolution Procedure.

"Appendix F" is the Trust Agreement.

XXIV. MODIFICATION

102. Except as provided in ¶ 14 (Modification of SOW or Related Deliverables), material modifications to this CD, including the SOW, shall be in writing, signed by the United States and Settling Defendants and, in the case of the CD only, the Navajo Nation, and effective upon approval by the Court. Except as provided in ¶ 14, non-material modifications to this CD, including the SOW and changes to Appendices A and B, shall be in writing and shall be effective when signed by duly authorized representatives of the United States and Settling Defendants, and in the case of the CD and Appendices A and B only, the Navajo Nation. Before providing its approval to any modification to the SOW, the United States will provide the Navajo Nation with a reasonable opportunity to review and comment on the proposed modification.

103. Nothing in this CD shall be deemed to alter the Court's power to enforce, supervise, or approve modifications to this CD.

XXV. NOTICE OF COMPLETION OF WORK

104. When EPA determines, after consultation with NNEPA, and after EPA's review of the Final Report submitted pursuant to the SOW, that all Work has been fully performed in accordance with this CD, with the exception of any continuing obligations required by this CD, including payment of Future Response Costs and Record retention, EPA will provide written notice to Settling Defendants, as a Certification of Work Completion, pursuant to Paragraph 11.4 of the SOW. If EPA determines, after consultation with NNEPA, that any such Work has not been completed in accordance with this CD, EPA will notify Settling Defendants, provide a list of deficiencies, and require that Settling Defendants correct such deficiencies. Settling Defendants shall correct the deficiencies and submit a modified Final Report in accordance with the EPA notice. Failure by Settling Defendants to correct the deficiencies as directed by EPA shall be a violation of this CD.

XXVI. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

105. This CD shall be lodged with the Court for at least 30 days for public notice and comment in accordance with Section 122(d)(2) of CERCLA, 42 U.S.C. § 9622(d)(2), and 28 C.F.R. § 50.7. The United States reserves the right to withdraw or withhold its consent if the comments regarding the CD disclose facts or considerations that indicate that the CD is inappropriate, improper, or inadequate. Settling Defendants consent to the entry of this CD without further notice.

106. If for any reason the Court should decline to approve this CD in the form presented, this agreement is voidable at the sole discretion of any Party and the terms of the agreement may not be used as evidence in any litigation between the Parties.

XXVII. SIGNATORIES/SERVICE

107. The undersigned representative of Settling Defendants, the Assistant Attorney General for the Environment and Natural Resources Division of the Department of Justice, and the Attorney General for the Navajo Nation each certifies that he or she is fully authorized to enter into the terms and conditions of this CD and to execute and legally bind such Party to this document.

108. Settling Defendants agree not to oppose entry of this CD by this Court or to challenge any provision of this CD unless the United States has notified Settling Defendants in writing that it no longer supports entry of the CD.

109. Settling Defendants shall identify, on the attached signature page, the name, address, and telephone number of an agent who is authorized to accept service of process by mail on behalf of that Party with respect to all matters arising under or relating to this CD. Settling Defendants agree to accept service in that manner and to waive the formal service requirements set forth in Rule 4 of the Federal Rules of Civil Procedure and any applicable local rules of this Court, including, but not limited to, service of a summons. Settling Defendants need not file an answer to the complaints in this action unless or until the Court expressly declines to enter this CD.

XXVIII. FINAL JUDGMENT

110. This CD and its appendices constitute the final, complete, and exclusive agreement and understanding among the Parties regarding the settlement embodied in the CD. The Parties acknowledge that there are no representations, agreements, or understandings relating to the settlement other than those expressly contained in this CD.

111. Upon entry of this CD by the Court, this CD shall constitute a final judgment between and among the United States, the Navajo Nation, and Settling Defendants. The Court enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58.

Appendix A

Appendix B

Appendix C

STATEMENT OF WORK

FOR RESPONSE ACTIONS AT 94 ABANDONED URANIUM MINE SITES ON NAVAJO NATION LANDS IN ARIZONA, NEW MEXICO AND UTAH

EPA REGION 9

TABLE OF CONTENTS

1. INTRODUCTION

1.1 Purpose of the SOW. This Statement of Work ("SOW") sets forth the procedures and requirements for implementing the Work as defined in Section IV (Definitions) of the Consent Decree ("CD") at 94 abandoned uranium Mine Sites, including one transfer station, in Arizona, New Mexico and Utah located on Navajo Nation lands, and listed in Appendix A to the CD ("Mine Sites").

1.2 Description of the Mine Sites. Appendix A to the CD includes the U.S. Environmental Protection Agency ("USEPA") mine site ID number, estimated ore production, surface area, and latitude and longitude for each Mine Site. Settling Defendants shall provide maps of the Mine Sites as part of the Site Management Plan ("SMP"), to be incorporated into this SOW as provided in Section 14. Areas of each Mine Site to be addressed pursuant to this SOW include:

1.3 The Work. For the purposes of performing the Work, Settling Defendants may group Mine Sites together, with the approval of USEPA. The Work to be performed at each Mine Site or group of Mine Sites includes Community Involvement and Removal Site Evaluations ("RSEs") and/or Remedial Investigations ("RIs"), and the following if determined necessary by USEPA, after reasonable opportunity for review and comment by NNEPA, based on the RSE and/or RI results:

1.4 Structure of the SOW.

2. DEFINITIONS

2.1 The terms used in this SOW that are defined in CERCLA, in regulations promulgated under CERCLA, or in the CD, have the meanings assigned to them in CERCLA, in such regulations, or in the CD, except that the term "Paragraph" or "¶" means a paragraph of the SOW, and the term "Section" means a section of the SOW, unless otherwise stated. In the event of any conflict between this SOW and the CD, the CD shall control.

2.2 "Components of Work" shall means the work products specified in Section 15.

2.3 "Deadlines" shall mean the dates for deliverables established under the operable version of the SMP (i.e., the most recent version) for the calendar year ("CY") in which that version of the SMP was approved by EPA and the ensuing two calendar years (CY+1, and CY+2). Deadlines are subject to stipulated penalties in accordance with Section XIV (Stipulated Penalties) of the CD.

2.4 "Parties" shall mean the United States, the Navajo Nation, and Settling Defendants. "Party" shall mean any one of these Parties, as the context requires.

2.5 "Performance Standards" or "PS" shall mean the cleanup levels and other measures of achievement of response action objectives, as set forth by EPA in one or more action memoranda or one or more records of decision issued in accordance with the SOW, the NCP, and CERCLA.

2.6 "Schedule" shall mean a timetable or plan that indicates the time and sequence of events.

2.7 "Settling Defendants" shall mean Cyprus Amax Minerals Company and Western Nuclear, Inc.

2.8 "Site Management Plan" or "SMP" shall mean a planning document prepared under Section 14 that contains a Schedule. The SMP will be used as a management tool in planning, reviewing, and setting priorities for all response activities at the Mine Sites. Deadlines for deliverables developed under the terms of this SOW will be listed in the SMP and are subject to Stipulated Penalties.

3. COMMUNITY INVOLVEMENT

3.1 Community Involvement ("CI") Responsibilities

4. GENERAL REQUIREMENTS

4.1 Grouping of Mine Sites. Many of the Mine Sites are relatively small and located adjacent to or in close proximity to each other. Further, waste rock and other materials from nearby mines may have been consolidated as part of earlier reclamation work. Settling Defendants may group Mine Sites together for purposes of performing the Work, with the approval of USEPA. USEPA may also group Mine Sites together when selecting response actions, after reasonable opportunity for review and comment by NNEPA.

4.2 Priority Media. Priority media to be addressed at each Mine Site include, where appropriate, soils, sediments, dust, groundwater and surface water, which present the greatest potential risk to human health and the environment.

4.3 Contaminants of Potential Concern ("COPC"). COPCs include, but are not limited to, the following:

4.4 Notice of Fieldwork and Sampling. Settling Defendants shall provide a 2-week notice to USEPA and NNEPA of all field work and sampling activities, including soil, sediment and groundwater sampling and scanning.

4.5 Mine Site Access. In addition to the requirements in Section VIII (Property Requirements) of the CD, Settling Defendants shall obtain access before Work commences at any of the Mine Sites. Unless otherwise directed by USEPA, Settling Defendants shall obtain access in accordance with the following requirements. If access cannot be reasonably attained pursuant to Paragraph 19 of the CD, Settling Defendants shall so notify USEPA and NNEPA.

4.6 Split Samples. Upon request from USEPA or NNEPA, Settling Defendants shall provide 10% split samples to be analyzed by USEPA's or NNEPA's laboratory for corroboration analysis.

4.7 Cultural Resources Surveys.

4.8 Biological Surveys.

5. REMOVAL SITE EVALUATION OR REMEDIAL INVESTIGATION

5.1 RSE or RI. USEPA will determine, after reasonable opportunity for review and comment by NNEPA, whether Settling Defendants shall conduct an RSE, RI, or RSE and RI at each Mine Site or group of Mine Sites.

5.2 RSE or RI Work Plan. For every Mine Site or group of Mine Sites selected by USEPA for an RSE and/or RI, Settling Defendants shall develop and submit to USEPA for review and approval or approval with modification RSE and RI Work Plans. The RSE or RI Work Plan shall be in substantially the form of the Ruby Mines Removal Site Evaluation Work Plan (2015). Settling Defendants may subdivide the RSE and RI Work Plans into separate Work Plans for each phase of the RSE or RI. The RSE and RI Work Plans shall include the following, as defined in Section 13.6:

5.3 RSE or RI Content. Settling Defendants shall include the following in the RSE and RI:

5.4 RSE and RI Reports. Settling Defendants shall submit RSE and RI Reports to USEPA for review and approval or approval with modification as described in ¶ 13.5 of this SOW. The RSE and RI Report shall include the following:

6. BASELINE HUMAN HEALTH RISK ASSESSMENT AND ECOLOGICAL RISK ASSESSMENT

6.1 Baseline Human Health Risk Assessment and Ecological Risk Assessment.

7. INTERIM ACTIONS

7.1 Interim Actions. At the direction of USEPA, after reasonable opportunity for review and comment by NNEPA, Settling Defendants shall conduct Interim Work or Interim Removal Actions.

7.2 Interim Work Examples

Attachment A: List of 31 Mine Sites included in the initial component of Work.

Appendix D

CERCLA Financial Assurance Sample Performance Bond for Use in Connection with Settlements

KNOW ALL PERSONS BY THESE PRESENTS, THAT:

WHEREAS, said Principal is required, under the Agreement entered pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, to perform the "Work" as defined in such Agreement (hereinafter, the "Work") and to fulfill its other obligations as set forth therein; and

WHEREAS, said Principal is required by the Agreement to provide financial assurance to ensure completion of the Work.

NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration the receipt of which is hereby acknowledged, the parties hereto agree as follows:

1. The Principal and Surety hereto are firmly bound to the United States Environmental Protection Agency (EPA or Beneficiary), in the above Total Dollar Amount of this Performance Bond, for the performance or payment of the Work, which we, the Principal and Surety, bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, subject to and in accordance with the terms and conditions hereof.

2. The conditions of the Surety's obligation hereunder are such that if the Principal shall promptly, faithfully, fully, and finally complete the Work in accordance with the terms of the Agreement, the Surety's obligation hereunder shall be null and void; otherwise it is to remain in full force and effect.

3. Pursuant to and in accordance with the terms of the Agreement, and except as specifically provided in Paragraph 5 below, the Surety shall become liable on the obligation evidenced hereby only upon the Principal's failure to perform all or any portion(s) of the Work, EPA's subsequent notice of a Work Takeover, and the Principal's failure to remedy to EPA's satisfaction the circumstances giving rise to EPA's issuance of such notice. At any time and from time to time upon notification by EPA (as specified in the Agreement) that a Work Takeover has commenced, the Surety shall, up to the Total Dollar Amount of the Performance Bond, promptly (and in any event within 15 days after receiving such notification):

If the Surety does not render such performance or payment set forth above within the specified 15-day period, the Surety shall be deemed to be in default of this Performance Bond and EPA shall be entitled to enforce any remedy available to it at law, in equity, or otherwise; provided, however, that if such default is susceptible of cure but cannot reasonably be cured within such 15-day period and provided further that Surety shall have commenced to cure such default within such 15-day period and thereafter diligently proceeds to perform the same, such 15-day period shall be extended for such time as is reasonably necessary for Surety in the exercise of due diligence to cure such default, such additional period not to exceed 90 days.

4. The liability of the Surety shall not be discharged by any performance, payment, or succession of payments hereunder, unless and until such performance, payment, or payments shall amount in the aggregate to the Total Dollar Amount of this Performance Bond, but in no event shall the aggregate obligation of the Surety hereunder exceed the amount of said sum.

5. The Surety may cancel this Performance Bond only by sending notice of cancellation to the Principal and to the Beneficiary, provided, however, that no such cancellation shall be effective during the 120-day period beginning on the date of receipt of the notice of cancellation by both the Principal and the Beneficiary, as evidenced by return receipts. If after 90 days of such 120-day period, the Principal has failed to provide alternative financial assurance to EPA in accordance with the terms of the Agreement, EPA shall have the right to (up to the Total Dollar Amount of this Performance Bond) demand performance of the Work or draw on the guaranteed funds.

6. The Principal may terminate this Performance Bond only by sending written notice of termination to the Surety and to the Beneficiary, provided, however, that no such termination shall become effective unless and until the Surety receives written authorization for termination of this Performance Bond by the Beneficiary.

7. Any modification, revision, or amendment that may be made to the terms of the Agreement or to the Work to be done thereunder, or any extension of the Agreement, or other forbearance on the part of either the Principal or Beneficiary to the other, shall not in any way release the Principal and the Surety, or either of them, or their heirs, executors, administrators, successors, or assigns from liability hereunder. The Surety hereby expressly waives notice of any change, revision, or amendment to the Agreement or to any related obligations between the Principal and the Beneficiary.

8. The Surety will immediately notify the Beneficiary of any of the following events: (a) the filing by the Surety of a petition seeking to take advantage of any laws relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts; (b) the Surety's consent to (or failure to contest in a timely manner) any petition filed against it in an involuntary case under such bankruptcy or other laws; (c) the Surety's application for (or consent to or failure to contest in a timely manner) the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator, or the like of itself or of all or a substantial part of its assets; (d) the Surety's making a general assignment for the benefit of creditors; or (e) the Surety's taking any corporate action for the purpose of effecting any of the foregoing.

9. Any provision in this Performance Bond that conflicts with CERCLA or any other applicable statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or legal requirement shall be deemed incorporated herein.

10. All notices, elections, consents, approvals, demands, and requests required or permitted hereunder shall be given in writing to (unless updated from time to time) the addressees shown on the first page of this Performance Bond, identify the Site, and provide a contact person (and contact information). All such correspondence shall be: (a) effective for all purposes if hand delivered or sent by (i) certified or registered United States mail, postage prepaid, return receipt requested or (ii) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, to the relevant address shown on the first page of this Performance Bond; and (b) effective and deemed received upon the earliest of (i) the actual receipt of the same by personal delivery or otherwise, (ii) one business day after being deposited with a nationally recognized overnight courier service as required above, or (iii) three business days after being deposited in the United States mail as required above. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given as herein required shall be deemed to be receipt of the notice, election, consent, approval, demand, or request sent.

11. The Surety hereby agrees that the obligations of the Surety under this Performance Bond shall be in no way impaired or affected by any winding up, insolvency, bankruptcy, or reorganization of the Principal or by any other arrangement or rearrangement of the Principal for the benefit of creditors.

12. No right of action shall accrue on this Performance Bond to or for the use of any person other than the Beneficiary or the executors, administrators, successors, or assigns of the Beneficiary.

IN WITNESS WHEREOF, the Principal and Surety have executed this Performance Bond and have affixed their seals on the date set forth above.

The persons whose signatures appear below hereby represent, warrant, and certify that they are authorized to execute this Performance Bond on behalf of the Principal and Surety, respectively.

Appendix E

APPENDIX E: NAVAJO INFORMAL DISPUTE RESOLUTION PROCEDURE

The Parties are hopeful that there will be very limited areas of disagreement between them. Nevertheless, disputes can always arise and it is therefore important to establish a dispute resolution process as part of this CD. The purpose of this paragraph is to establish a process to talk through any dispute before resorting to other methods. In that regard the Navajo Nation, with the invaluable assistance of former Navajo Nation Supreme Court Chief Justice Robert Yazzie and former Director of the Navajo Abandoned Mines Program Perry Charley, has provided the following discussion of Navajo Fundamental Law which it believes should inform any such discussions:

a. If one conceives of the notion of problem-solving as a circle, or sun with four stages, the process begins on the eastern side of the circle and might be labeled in Navajo as "nitsahakees" or "thinking." Thinking is key and it takes a long time. It goes on and on. Perhaps it has no beginning and no end. In this process of thinking about remediating the uranium contamination left over from past uranium mining on Navajo lands it is almost impossible to identify a beginning. The Navajo paradigm and the four stages within it are imbedded with one another. No one stage can exist without the other. Regardless, Navajo problem-solving begins with thinking. This CD has required a great deal of thinking. Thinking is examining root causes of a problem and its nature and consequences. Before we can decide on a solution ("nahat'a" or "planning") we must understand the problem. If we have done our job well, there will be few disagreements.

b. After "thinking" comes "nahat'a" or "planning." Planning may be visualized as the southernmost point of the circle. Inside the circle is the milieu of life. For the Navajo this means many things including the sacred elements (air, water, fire and earth/pollen), the sacred mountains, and "Nayee" (things that get in the way of a good life).

c. After "planning" comes "Iina" or the life that "implements" the planning. "Implementation" may be seen as the westernmost point of the circle. Again, this takes time and interacts with the forces visualized as being inside the circle. Obstacles emerge and interfere with the implementation. Insights arise and help the implementation. But, if the thinking continues and the planning continues, this leads to hopeful and positive results.

d. After "implementation" comes "sihasin" which means many things including "results." Results appear at the northernmost point of the circle. Results follow thinking, planning and implementation. For all the Parties here the desired results mean the expeditious implementation of this CD, although each Party likely has its own reasons for wanting this result. For the Navajo Nation, this result is desired because it represents a step toward the complete remediation of all uranium contamination left over from past uranium mining on Navajo lands. The Navajo Nation understands the difficulties and challenges faced in achieving that goal. Still, the goal is worth the effort.

It is often difficult to keep focus on the nested nature of the four aspects discussed here. Each aspect is re-evaluated by discussion of what has worked and what has failed.

Appendix F

U.S. Four Corners Uranium Mine Sites Trust Agreement

This Trust Agreement is entered into by and among Cyprus Amax Minerals Company, Western Nuclear, Inc., (collectively, "Settling Defendants"); the United States of America ("United States"); and Le Petomane XXX, Inc., not individually but solely as trustee of the Trust established herein ("Trustee").

RECITALS

A. The United States and Settling Defendants entered into a Consent Decree that was signed by them and the Navajo Nation (a federally recognized Indian tribe) and lodged in the U.S. District Court for the District of Arizona on January 17, 2017.

B. The Consent Decree provides for the creation of the Trust and for the transfer of funding to the Trust, to be administered by the Trustee pursuant to this Agreement and the Consent Decree.

C. Under the Consent Decree, Settling Defendants agree to perform Work and pay Future Response Costs, as those terms are defined therein, and to receive certain reimbursement for the costs of such performance in accordance with Paragraph 34 of the Consent Decree.

D. The Trust is established solely for the purpose of holding, for the benefit of the United States and Settling Defendants, the Trust Assets, which shall be used solely for payment of the United States' share of the costs of Work performed pursuant to the Consent Decree.

E. The Trust Assets shall be held in trust solely for payment of the United States' share of the costs of Work performed pursuant to the Consent Decree as provided herein and may not be used for any other purpose.

F. The Trust is to be funded in the amount set forth in the Consent Decree.

G. This Agreement and the Consent Decree govern the Trust.

H. The Trust is created to comply with section 1.468B-1 et seq of the Treasury Regulations (the "Treasury Regulations") promulgated under Section 468B of the Internal Revenue Code (the "Code").

I. The Trust Assets shall be invested in accordance with a conservative strategy that emphasizes capital preservation while generating a reasonable level of income, as determined by the Trustee after consultation with the United States, and as set forth in more detail in Paragraph 5.

J. It is intended that no contractor, consultant, supplier, or other third party shall be considered to be a third party beneficiary, either incidentally or directly, of this Agreement.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein and in the Consent Decree, the United States, the Settling Defendants, and the Trustee hereby agree as follows:

AGREEMENT

THE UNDERSIGNED ENTER INTO THE AGREEMENT:

FOR CYPRUS AMAX MINERALS COMPANY:

FOR WESTERN NUCLEAR, INC.:

FOR THE UNITED STATES OF AMERICA:

FOR THE TRUSTEE: