SETTLEMENT AGREEMENT

WHEREAS, the parties to this Settlement Agreement are the Plaintiffs in Colorado

Citizens Against Toxic Waste and Rocky Mountain Clean Air Action v. Jackson, Civ. Action

No. 08-cv-1787 (D. Colo.), and Defendant, Lisa P. Jackson, in her official capacity as

Administrator of the United States Environmental Protection Agency (hereinafter "EP A")

(collectively, the "Paries");

WHEREAS, on August 21, 2008, Plaintiffs filed their complaint in the above-referenced

case pursuant to section 304(a)(2) of the Clean Air Act ("CAA"), 42U.S.C. § 7604(a)(2),

alleging that EP A failed to perform a non-discretionar duty pursuant to CAA section 112( q)(1),

42 U.S~C. § 74l2(q)(l), to review and, if appropriate, revise, 40 C.F.R. Par 61, Subpar W,

National Emission Standards for Radon Emissions From Operating Mil Tailings, to comply with

the requirements ofCAA section ll2(d), 42U.S.C. § 7412(d);

WHEREAS, on October 24,2008, pursuant to Fed. R. Civ. P. 12(b)(l) and (6), EPA filed

a motíon to dismiss the Complaint on the basis that the Cour lacks subject matter jurisdiction

overthe claims in the Complaint because they are time-bared by the six-year statute of

,limitat,ions applicable in this case: 28 U.S.C. § 2401(a);

WHEREAS, on November 11,2008, Plaintiffs filed a motion (1) to stay the briefing on

EPA's motion to dismiss and (2) to allow Plaintiffs to conduct discovery regarding subject matter

jurisdiction;

WHEREAS, on Januar 20,2009, after full briefing on Plaintiffs' request for discovery,

the Cour issued an Order denying Plaintiffs' request except in one limited instance;

WHREAS, on Februar 6, 2009, the Cour issued an Order granting the Paries' joint

request to Stay Proceedings and Set a Settlement Conference;
WHEREAS, Magistrate Judge Michael E. Hegar presided over Settlement Conferences

held on March 2,2009, and June 4, 2009;

WHEREAS, the Paries wish to effectuate a settlement of Colorado Citizens Against

Toxic Waste et at v. Jackson, Civ. Action No. 08-cv-01787(D. Colo.), without expensive and

protracted litigation;

WHEREAS, the Paries have agreed to a settlement without admission of any issue of

fact or law;

WHEREAS, the Paries consider this Settlement Agreement to be an adequate and

equitable resolution of the claims in the above-referenced case;

WHEREAS, EP A has commenced review of 40C.F.R. Par 61, Subpart W, National

Emission Stadards for Radon Emissions From Operating Mill Tailings ("Subpar W"); and

WHEREAS, the Paries agree this Settlement Agreement wil provide expanded public

paricipation opportities during the review of Subpar W which will assist EP A in receiving

and considering input during the substative review of Subpar W.

NOW THEREFORE, the Paries agree as follows:

1. Within 10 business days from the date both Paries sign this Agreement, the

Paries shall file a joint motion with the Cour notifying it of this Agreement and requesting that

this case be stayed pending completion of the process under section 113(g) of the Clean Air Act

as set forth in Paragraph 12. This Agreement shall not become final and effective until EP A

notifies Plaintiffs in writing, pursuant to Paragraph 12, that it consents to the Agreement

following the public notice and comment process required by Clean Air Act sectionl13(g) as set

forth in Paragraph 12.

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2. Plaintiffs shall file a motion to administratively close this case under

D.C.Colo.LCivR 41.2 within 10 business days of the date this Agreement becomes final pursuant

to Paragraph 12. In the event that this motion is not granted, this Agreement is voidable at the

election of either pary. Plaintiffs shall file a motion for voluntar dismissal of the Complaint,

with prejudice, pursuant to Fed. R Civ. P. 41(a), within 10 business days after publication in the

Federal Register ofEPA's promulgation of either: (1) EPA's issuance of a final determination

not to revise Subpar W; or (2) EPA's promulgation ofa final revision of Subpar W.

3. EPA agrees to take the following steps:

a. Within 30 days of finalization of this Agreement pursuant to Paragraph 12,

EP A will create a website dedicated to Subpar W which provides internet

access to background information already compiled by EP A. During the

ongoing Subpart W review, the website is intended to be used to provide

public access to all non-privileged rec6rds, especially techncal documents,

which will be posted as soon as practicable after the date such agency records

are created or obtained by EP A;

b. Within 30 days of the finalization of this Agreement pursuant to Paragraph 12,

EP A shall establish and post on the website, and thereafter maintain, a curent

estimate of a tentative timeframe for completing its review of Subpar W;

c. Within 30 days of finalization of this Agreement pursuant to Paragraph 12,

EP A shall post an anouncement on the Subpart W website indicating that

EP A invites and encourages the public to provide comments on its 'review of

Subpar W;

d. In addition to. any other meetings it deems appropriate, prior to publication of

a proposed rule regarding Subpar W, EP A shall provide at least four

presentations, comprised of three in-person regional presentations and one

internet semiar, regarding EP A's review of Subpar W, Uness all paries

agree otherwse, as follows:

1. A meeting on June 30, 2009 in Cañon City, Colorado;

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ii. A meeting at a date to be determined, but on or before June 30,

2010, to be held in Blanding, Utah, or a similar location near the

Denison Mil at Whte Mesa, Utah;

ll. A meeting in conjunction with the Western Mining Action

Network's semi-anual conference, which wil take place October 1-4,

2009, in Rapid City, South Dakota;

iv. Final locations (e.g. facilities) and other details ofthe meetings

referenced in the above three paragraphs wil be negotiated between

the paries as soon as practicable to enable the above-referenced

meetings to be held;

v. The fourh presentation wil be a nationwide internet seminar held

on a date to be determined, but on or before June 30, 2010.

Information regarding the date and time of this presentation, as well as

how to paricipate, will be provided to Plaintiffs at least 20 days before

the seminar and will be posted on the Subpar W website.

e. EPA shall conduct quarerly call-in conference calls to brief the public on the

status of its review of Subpar W, and to answer relevant questions the public

may have regarding that review. The calls shall commence within 30 days

after this Agreement becomes final, as indicated in Paragraph 12, and end

when the Administrator takes final action regarding review of Subpar W.

Except for the initial call, such calls will take place on the first Tuesday of the

first month of the quarer at 11 :00 a.m. Eastern Time, 9:00 a.m. Mountain

Time. EPA shall provide the call-in number to the Plaintiffs at least five

business days prior to the call via emaiL.

4. The United States agrees to pay to Plaintiffs the sum of$27,427.50 which the

paries agree constitutes a reasonable resolution of Plaintiffs' claim for statutory costs and

attorneys' fees. All other fees and costs shall be borne by the paries. Payment shall be

accomplished by electronic transfer to EMLC's Colorado Lawyer Trut Account Foundation

("COLT AF") account within a reasonable time after this Agreement becomes finaL Within two

business days after this Agreement becomes final, Plaintiffs agree to provide the necessar

account and routing information and the United States agrees that such information shall be held

confdential and used only for puroses of accomplishing this transfer of fuds.

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5. Plaintiffs agree that performance of the obligations described in Paragraphs 3 and

4 shall constitute full and complete settlement of all claims that Plaintiffs have or could have

asserted under any provision oflaw in connection with this case, including claims for attorneys'

fees or other litigation costs as a result of this case.

6. In the event EP A fails to fulfill the obligations described in Paragraph 3 of this

Settlement Agreement, Plaintiffs' sole and exclusive remedy shall be the right to move the Cour

to reopen Case No. 08-cv-01787 (D. Colo.). No such motion shall be properly filed uness the

Plaintiffs have first provided EPA with a written notice outlining the natue of the failure to

perform, and requested and conducted informal negotiations with EP A to resolve the dispute, at

least 30 business days before the motion is filed. EP A shall provide a wrtten response within 20

days of Plaintiffs providing such written notice.

'7. Except as expressly provided in this Settlement Agreement, none ofthe Paries

waives or relinquishes any legal rights, claims, or defenses it may have, including, without

limitation, Plaintiffs' right to challenge any final determination made by EP A regarding Subpar

W.

8. Nothing in the terms of this Settlement Agreement shall be construed to limit or

modify the Plaintiffs' abilities,to take separate actions to ensure that existing and proposed

facilities are in compliance with Subpar W.

9. Nothng in the terms of this Settlement Agreement shall be construed to limit or

modify the discretion accorded EP A under the Clean Air Act or by general principles of

administrative law.

10. Nothing in this Settlement Agreement shall be construed to confer upon the

district cour jurisdiction to review any issues that are within the exclusive jurisdiction of the

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United States Cours of Appeals, or waive any remedies or defenses the Parties may have,

pursuant to section 307(b)(1) of the Clean Air Act, 42 U.S.C. §§ 7607(b)(1), or otherwse.

11. The commitments by EP A in this Settlement Agreement are subject to the

availability of appropriated fuds. No provision of this Settlement Agreement shall be

interpreted as or constitute a commitment or requirement that EP A obligate, expend, or pay fuds

in contravention of the Anti-Deficiency Act, 31 U.S.c. § 1341, or any other applicable

appropriations law or regulation, or otherwse take any action in contravention of those laws or

regulations.

12. The Paries agree and acknowledge that final approval of this Settlement

Agreement is subject to the requirements of section 113(g) of the Clean Air Act, 42 U.S.C. §

7413(g). That section requires that the Administrator provide notice of any proposed settlement

agreement in the Federal Register and provide a period of at least thirt (30) days following

publication to allow persons who are not paries or intervenors in the litigation to comment in

writing. Therefore, within 10 business days from the date this Agreement is executed by the

Paries, EPA shall submit this Agreement to the Federal Register for publication. The

Administrator or the Attorney General, as appropriate, must consider any comments in deciding

whether to consent to the Settlement Agreement and may withdraw or withhold her or his

consent to the Settlement Agreement if the comments disclose facts or considerations which

indicate that such consent is inappropriate, improper, inadequate or inconsistent with the

requirements of the Act. This Agreement shall become final on the date that EP A provides

written notice of such finality to Plaintiffs. EP A shall provide such written notice within 60 days

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after the notice of the Agreement is published in the Federal Register. Plaintiffs' sole remedy

should the Administrator withhold her or his consent to the Settlement Agreement shall be the

right to ask the Cour to lift the stay of Civ. Action No. 08-cv-1787 (D. Colo.) and establish a

schedule for fuher proceedings.

13. The undersigned representatives of each Part certify that they are fully authorized

by the Paries they represent to bind the respective Paries to the terms of this Settlement

Agreement. This Settlement Agreement wil be deemed to be executed when it has been signed

by the representatives of the Paries set forth below, subject to final approvals pursuant to

Paragraph 12.

FOR PLAITIFFS

~~

TRAVIS E. STILLS

Energy Minerals Law Center

1911 Mai Avenue, Suite 238

Durango, CO 81301

Tel: (970) 375-9231

Fax: (970) 382-0316

E-mail: emlc~frontier.net

FOR DEFENDANT

DATED: 4(//&,(J.02ÓO¡

~tw1 ;A. .~

LAUREL A. BEDIG

United States Deparent of Justice

Environmental Defense Section

P.O. Box 23986

Washington, DC 20026-3986

Phone (202) 305-0331

Fax (202) 514-8865

laureL bedig~usdoj .gov

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DATED: ,ßA~:2Jf J-¡¿9

Of Counsel for Defendant:

SUSAN STAHLE

U.S. Environmental Protection Agency

Office of General Counsel

AR: MC-2344A

1200'Pennsylvana Ave., N.W.

Washington, DC 20460

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