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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SOUTHERN DIVISION

AIRPORT WORKING GROUP OF )

ORANGE COUNTY, INC., et al., )

)

Plaintiffs, ) Civil No. 1:02CV-1110 GLT (MLGx)

)

)

UNITED STATES DEPARTMENT ) SETTLEMENT AGREEMENT

OF DEFENSE; et al, )

)

Defendants. )

_______________________________)

WHEREAS, Plaintiffs, the Airport Working Group of Orange County, Inc., a non-profit corporation;, Tom Naughton, an individual, Orange County Regional Airport Authority, a non-profit Ccorporation, and Citizens fFor Jobs and the Economy, a non-profit corporation (collectively Plaintiffs), commenced this action on June 19, 2002, alleging that Defendants, the United States Department of Defense, Donald Rumsfeld, Secretary of United States Department of Defense, Department of the Navy, Gordon R. England, Hansford T. Johnson, Acting Secretary of the U.S. Department of the Navy, Wayne Arny, Deputy Assistant Secretary, Installations and Facilities, Department of the Navy, United States General Services Administration, Stephen Perry, Administrator, United States General Services Administration, and Does 1 through 100, inclusive (collectively Defendants), have violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 43231, et seq., the Clean Air Act, 42 U.S.C. §§ 7401, et seq., and the Administrative Procedure Act, 5 U.S.C. §§ 701, et seq., by approving the Final Environmental Impact Statement and Record of Decision pertaining to the reuse of the former Marine Corps Air Station (MCAS) El Toro;

WHEREAS, Defendants deny Plaintiffs’ claims and maintain that they have complied in all respects with applicable law;

WHEREAS, Plaintiffs and Defendants, through their authorized representatives, and without any admission or final adjudication of the issues of fact or law with respect to Plaintiffs’ claims, have reached a settlement which they consider to be a just, fair, adequate, and equitable resolution of the disputes set forth in Plaintiffs’ First Amended Complaint;

WHEREAS, all parties to this lawsuit desire to avoid the costs, delay, and uncertainties of litigation and to resolve the controversies between them;

WHEREAS, all parties agree that settlement of this action in this manner is in the public interest and strikes an appropriate balance between the public’s right to full disclosure of the environmental impacts of Federal actions and the government’s need for expedition in the carrying out of its statutory duty to promptly dispose of surplus Federal property.

NOW, THEREFORE, THE PARTIES, INTENDING TO BE LEGALLY

BOUND, HEREBY STIPULATE AND AGREE AS FOLLOWS:

1. Jurisdiction and Venue. The court has jurisdiction over the subject matter of this action and over the parties consenting hereto pursuant to 28 U.S.C. §§ 1331 and 1361, and the Administrative Procedure Act, 5 U.S.C. §§ 701, et seq. Venue is appropriate in this court under 28 U.S.C. §§ 1391(e).

2. Good Faith Negotiations. This Agreement was negotiated in good faith and constitutes a settlement of claims, which were vigorously contested, denied, and disputed by the parties.

3. Binding Effect of Agreement. Upon approval of the court and dismissal of this action, the provisions of this Agreement shall apply to and be binding upon the parties hereto and anyone acting on their behalf, including successors, employees, agents, elected and appointed officers, and assigns.

4. Court Approval of Agreement. This Agreement is subject to approval of the court, and the parties will jointly and cooperatively use their best efforts to obtain its approval by the court.

5. Amendment. The terms of this Agreement shall not be changed, revised or modified except by written instrument signed by the parties.

6. Obligations of Defendants.

i. Defendants shall conduct a focused Air Quality Study at the former MCAS El Toro to examine fugitive dust PM10 and NOx emissions that, under possible scenarios for future reuse and development, could be associated with and result from demolition of the existing runways and associated taxiways, aprons, and tarmac (but excluding buildings) at the former MCAS El Toro airfield and crushing of the resulting concrete fragments. The area to be studied will focus on the areas depicted in Attachment A – Map of Runways. The purpose of the focused Air Quality Study is to evaluate the potential air quality impacts of the demolition of pavement associated with the airport. This study will include:

• Documentation to support findings
• Identification and analysis of emission sources
• Definition of project site condition
• Analysis of air quality impacts of on-site activities which may emit significant air pollutants from fugitive dust, and all vehicle and equipment exhaust
• Evaluation of impacts for each phase of the project
• Identification of mitigation measures necessary to reduce air quality impacts substantially.
• Identification of the favorable characteristics of the project.

ii. The Air Quality Study will include the preparation of four documents: a draft work plan; a final work plan; a draft report; and a final report. These documents will be prepared by the Defendant and submitted to the Plaintiffs for review and comment in accordance with the following schedule unless the schedule is extended as provided in Sections 14 and 15:

Section 3.

iii. The Plaintiffs will have the opportunity to comment on both the draft work plan and draft report before they become final. The Plaintiffs shall submit their comments to the Defendants not later than fourteen calendar days following the date of receipt of the draft work plan and draft report from the Defendants. The Defendants agree to consider and respond to those comments before taking final action on the work plan or report.

iv. The Defendants will develop a work plan in consultation with the Plaintiffs and in accordance with the following principles of conservatism, balance, consistency, and documentation to ensure the integrity of the process. Each principle is described below.

A. "Conservatism" requires that, where more than one option exists for using data, assumptions, or methods to estimate net emissions, each of which is reasonable, the data, assumptions or methods that are most scientifically defensible shall be used.

methodology to estimate emissions from demolition activities wherever practicable.

methodology used in this study should be consistent with data, assumptions and methodologies used in other studies, emissions inventories, permit applications, or reports compiling similar information, and consistent with steps anticipated to be taken when the demolition actually commences.

document all data, assumptions and methodologies used to determine the calculations for the air quality impacts analysis.

principles of conservatism, balance, consistency, and documentation could not be met.

vi. As part of the process for developing the work plan for the study, Plaintiffs shall be provided an opportunity to provide input into the selection of the contractor, but the final selection shall be made by Defendants. Assumptions necessary to complete the Air Quality Study will be identified early in this process and provided to Plaintiffs for review and comment. After coordination with Defendants, Plaintiffs shall be provided reasonable opportunities to confer directly with Defendants’ contractor, with the participation of Defendants, when pieces of analysis or information concerning assumptions are provided to Plaintiffs. Defendants shall ensure that, where actual data are available and represent emissions from a source, the actual data shall be used in the new analysis.

and based on accepted assumptions and methodology for assessing air quality impacts. Those assumptions and methodology shall be identified in the draft work plan submitted to the Plaintiffs for comment, and the Defendants agree to consider and respond to the Plaintiffs’ comments on the assumptions and methodology. The study shall include an appropriate assessment of emissions from all fugitive dust PM10 and NOx emissions associated with and resulting from demolition of the existing runways and associated taxiways, aprons, and tarmac at the former MCAS El Toro airfield.. The study shall include, but not be limited to, emissions associated with concrete demolition, crushing and hauling away of resulting concrete fragments, haul-truck travel to the installation boundaries for off-site disposal, grading, and on-site recycling crushing and screening operations.

comment of the draft study be used as a basis for otherwise delaying the process to auction, sell, lease, or transfer the real property at the former MCAS El Toro.

Preamble:

It is Plaintiffs’ position t that Defendants have not adequately investigated the hazardous contamination on base, or adequately disclosed the risks known and anticipated contamination poses for a residential development, where soilwhere soil sampling has not been conducted for a substantial portion of the property being transferred for development as residences and parks. It is Plaintiffs’ further position that the deficiencies in the Navy’s investigation and disclosure of the risks from hazardous contamination can be remedied by Defendants’ strict compliance with their obligations and responsibilities under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Department of Defense regulations and guidance.

Defendants maintain that they have and will continue to provide disclosure of all such risks under all applicable federal laws and regulations, including NEPA, as well as providing protection of the environment and public health and safety sufficient to meet all of their obligations and responsibilities under CERCLA and implementing Department of Defense regulations and guidance. Defendants further deny that any deficiencies exist with respect to the Navy’s investigation and disclosure of possible risks and maintain that the Navy has complied in all respects with its obligations and responsibilities under CERCLA and all applicable laws and regulations.

In order to address these issues and facilitate settlement, the parties agree as follows:

i. The Defendants recognize their obligations under Section 330 of the National Defense Authorization Act of 1993 (Public Law No. 102-484), as amended, regarding indemnification of transferees of closing Department of Defense property, and shall comply with the requirements of Section 120(h) of CERCLA, 42 U.S.C. § 9620(h), as they apply to the conveyance of real property by the Government at MCAS El Toro (the property).

ii. The Defendants shall prepare one or morea Findings of Suitability to Transfer (FOST) to identify property at MCAS El Toro that is suitable for transfer in accordance with the Department of Defense’s Base Reuse Implementation Manual ( BRIM ) (December 1997) ( see, sections 2.1.3 (p. 2-11) and Appendix F (pp. F-27, et seq.)). .) Portions of the BRIM relevant to this Section 6.b. are attached to this Agreement as Attachment B for information and reference . The Defendants shall not convey title to any portions of the property ("carve-out" portions) that are not determined to be unsuitable in athe FOST for conveyance as of the execution of the final FOST referenced herein, until such time as the requirements of Section 120(h) of CERCLA have been metcomplied with.

Lease (FOSL) to address those "carve-out" portions of the property as provided in the BRIM (s See sections 5.1.4, 5.2.3, and 5.2.4 and Appendix F (p. F-15, et seq.) of Attachment B). Any Lease in Furtherance of Conveyance (LIFOC) entered into by the Government for the carve-out portions of the property shall contain appropriate use restrictions and lease conditions in order to ensure adequate protection of human health and the environment in accordance with the FOSL as provided in thein the BRIM (Ssee Sections 5.1.3 and 5.2.3 of Attachment B).

FOSL and LIFOC that address Potential Release Locations (PRLs) identified as Environmental Condition of Property (ECP) Category 7 in Table 4.1 of the final "Environmental Baseline Survey, Former Marine Corps Air Station El Toro, California" (Final EBS) shall be sufficiently restrictive as to be protective of human health and the environment pending completion of the investigations and re-classification of the PRLs as ECP Categories 1, 2, 3, or 6. See "BRAC Cleanup Guide (BCP) Guidebook: Implementing President Clinton's Decision to Promote Early Reuse of Closing Bases by Expediting Environmental Cleanup," Department of Defense, Fall 1995, as amended in September 1996 (pp. 4-48 to 4-52, are set forth copied in Attachment C ), for definitions of the seven ECP categories. The development of the FOSL and associated use restrictions and conditions for these ECP Category 7 PRLs shall be coordinated with the environmental regulators, as provided in sSections 5.1.4, 5.2.3, & and 5.2.4 and Appendix F (pp. F-15, et seq.) of the BRIM (Attachment B).

v. The Defendants agree to include the following language in the Finding of Suitability to Lease (FOSL) and Finding of Suitability to Transfer (FOST): "Not all characterization of the station was based upon sampling." This language has already been added to the most recently updated draft of the Environmental Baseline Survey ( EBS) for MCAS El Toro, and will be included in any future future updates or supplements todrafts of that report.

vi. Defendants agree to promptly to provide Plaintiffs with copies of non- privileged comments (based upon the privileges recognized under the Freedom of Information Act, 5 U.S.C. § 552) comments upon EBS, FOST, and FOSL, reports provided to the Navy by the environmental regulators following the effective date of this Agreement for "carve-out" portions of the real property at the former MCAS El Toro, as identified in the initial 2003 EBS, FOST, and FOSL, and the Navy’s response to these comments. These documents shall be forwarded to Plaintiffs within five (5)3 business days of receipt by the Navy. The Defendants further agree to provide the Plaintiffs with the same opportunity provided to the environmental regulators to review and comment on future drafts of the FOST and FOSL reports under development as of the effective date of this Agreement : the current Draft Final EBS, Draft FOST, and Draft FOSL; future drafts of those documents; and EBS, FOST, or FOSL reports prepared by the Defendants to address the carved-out portions of the real property after the effective date of this Agreement. The Defendants agree to consider the Plaintiffs’ comments on EBS, FOST, and FOSL reports that are developed after the effective date of this Agreement.

1. Obligations of Plaintiffs
.

or organization which they direct or control, any claim against the transfer, sale, use, or lease by Federal Defendants of the property at the former MCAS El Toro, except to enforce a remedy for noncompliance with this aAgreement as provided herein.

support the adequacy of any study or report completed in cooperation with Plaintiffs pursuant to this Agreement, except to the extent Plaintiffs have specifically reserved their objections in writing and the provisions of Section s 14 were either were not available or were exhausted, against any challenges by third parties.

c. The Plaintiffs expressly agree that the ultimate and final decision concerning the final environmental characterization and final disposition of the real property at the former MCAS El Toro will be the sole and exclusive province of the Defendants and will not be subject to challenge under the terms of the Agreement.

study or the data and analysis generated as a result of the study as the basis or support for a separate legal challenge against the United States, its agencies and officials, or the City of Irvine during any phase of redevelopment of the former MCAS El Toro.

8. Timely Accomplishment of Obligations. Defendants and Plaintiffs shall make every effort to ensure that they perform their responsibilities and obligations under this Agreement in a timely manner. Nonetheless, the parties recognize that the Defendants cannot commit with absolute certainty that the processes or actions set out herein will be completed within the estimated time frames.

9. Inability to Perform. If the Defendants’ performance of any provision of this Agreement is halted or impeded by the issuance of an injunction or any other order of any court, the Defendants may at their option be relieved of their performance of such obligation so long as such injunction or order remains in effect.

10. Availability of Appropriated Funds. Any requirement for the payment or obligation of funds by the Defendants resulting from the terms of this Agreement shall be subject to the availability of appropriated funds, which legally may be obligated for this purpose. No provision of this Agreement shall be interpreted as or constitute a commitment or requirement that the Defendants obligate or pay funds in violation of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other law or regulation. Defendants shall use best efforts to seek, through the appropriate Department of Navy budgetary process, all funds necessary in each fiscal year to perform the requirements of this Agreement so as to achieve the most expeditious schedule of compliance. In doing so, Defendants shall ensure that the approving officials are aware that such funds are required for compliance with this Agreement.

11. Dismissal of the Case. This action shall be dismissed with prejudice pursuant to the provisions of Federal Rule of Civil Procedure 41(a)(1). Subject to Section 13, either party may, for good cause, petition the court by motion for reinstatement of the case solely for the purpose of seeking compliance with the terms and conditions of this Agreement.

12. Reservation of Rights.

a. In signing this Agreement, the United States does not admit and expressly denies any and all allegations and statements of fact and liability concerning actual or threatened releases at or from or the presence at the MCAS El Toro facility of hazardous, toxic, or solid wastes, substances, pollutants or contaminants under Federal and State law.

b. Nothing in this Agreement is intended nor shall be construed to release any individual or entity not a Party to this Agreement from any liability of any sort, including, but not limited to, liability for past, present or future response and/or remediation costs, or from liability for damages for injury to, destruction of, or loss of natural resources arising from the release of threatened release of any hazardous substances from the MCAS El Toro facility, or otherwise.

13. Retention of Jurisdiction. Notwithstanding the entry of dismissal herein, the parties hereby stipulate that the court may maintain jurisdiction for the purpose of reinstatement of the claim as provided in Section 11 above. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 365 (1994).

14. Dispute Resolution Procedures.

a. In the event of any dispute or claim arising out of or relating to compliance with the procedures required by this Aagreement or an alleged breach thereof, the parties hereto shall use their best efforts to settle the dispute or claim. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to all parties. If they are unable to resolve the dispute or claim in a timely manner, the parties shall meet and confer, consistent with the process in Local Rule 7-3 of the rules of this court, by providing written notice to the other parties and identifying their specific concerns. The other parties shall provide a written response within ten (10) days in a further effort to resolve the dispute or claim. If these efforts to resolve the dispute or claim regarding compliance with the Agreement do not succeed, then the complaining parties may utilize those procedures provided in paragraphs 11 and 13 of this Agreement.

b. The schedule for the Defendants’ performance under this Agreement shall be extended one day for each day that a dispute delays performance.

Agreement shall be extended one day for each day that a dispute delays performance.

15. Force Majeure. The schedules set forth in this Agreement shall be extended based upon events of Force Majeure including but not limited to acts of God, fire, war or national emergency, insurrection, civil disturbance, explosion, adverse weather conditions, unusual delay in transportation, restraint by court order or order of public authority, inability to obtain at reasonable cost necessary permits or authorizations, delays caused by compliance with applicable statutes or regulations, or insufficient availability of funds as provided in Section 10.

16. Attorneys’ Fees and Expenses. Defendants agree that, in exchange for dismissing this action with prejudice, the Plaintiffs are entitled to an award of attorneys’ fees and costs under the CAA and the Equal Access to Justice Act (EAJA). Defendants shall pay the actual costs incurred up to a maximum amountsum of $_________ $270,000 to Plaintiffs for their reasonable attorneys’ fees and costs associated with this action. Plaintiffs agree that the award of actual costs incurred up to $270,000_________ encompasses the entire amount of attorneys’ fees and costs to which they are entitled. Defendants shall use their best efforts to secure payment within 60 days.

17. Federal Tort Claims Act. In the event of any death or injury to any person, or the loss of or damage of any property, caused by officers, employees, or contractors of the United States in connection with any of the United States' activities hereunder or in the event of any legal or equitable action instituted between the plaintiffs’ officers, employees and contractors and the United States, the liability, if any, of the United States shall be determined in accordance with the applicable provisions of the Federal Tort Claims Act (28 U.S.C. §§ 2671-2680).

18. Notice.

a. The Parties designate the following technical and legal representatives asto be the primary points of contact in the performance of this Agreement:

Technical Representatives:

Plaintiffs:

Gregory F. Hurley, REA

Kutak Rock, LLP

18201 Von Karmen, Suite 1100

Irvine, Ca. 92612

Phone: 949-417-0965

Fax: 949-417-5394

Gregory.Hurley@KutakRock.com

Defendants:

F. Andrew Piszkin, P.E.

BRAC Environmental Coordinator

MCAS El Toro

Southwest Division

Naval Facilities Engineering Command

1220 Pacific Highway

San Diego, CA 92132-5190

619) 532-0784

Legal Representatives:

Plaintiffs:

Barbara E. Lichman, Ph.D.

695 Town Center Drive

Suite 700

Costa Mesa, CA 92626

Phone: 714-384-6520

Fax: 714-384-6521

Email: cal@calairlaw.com

Defendants:

Charles R. Shockey

U.S. Department of Justice

Environment and Natural Resources Division

501 "I" Street, Suite 9-700

Sacramento, CA 95814-2322

Phone: 916-930-2203

Fax: 916-930-2210

Email: charles.shockey@usdoj.gov

b. These representatives may be changed from time to time as the Parties see fit and at their sole discretion. Notice of the change shall be provided to the other Parties.

19. Interpretation.

Captions and section headings are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

b. Federal Law.

This Agreement shall be governed by and interpreted according to Federal substantive law and regulations.

c. Construction.

Neither the Plaintiffs nor the United States shall be considered the drafter of this Agreement or any of its provisions for the purposes of any statute, case law, or rule of interpretation or construction that would or might cause any provision to be construed against the drafter of the Agreement.

20. Final and Sole Agreement. This Agreement contains all of the agreements between the parties, and is intended to be and is the final and sole agreement between the parties. Any other prior or contemporaneous representations or understandings not explicitly contained in this Agreement, whether written or oral, are of no further legal or equitable force or effect.

21. Authority of Signatories. The undersigned representatives of each party certify that they are fully authorized by the party or parties whom they represent to enter into the terms and conditions of this settlement agreement and to legally bind them to it.

____________________________         ___________________________

CHARLES R. SHOCKEY                     BARBARA E. LICHMAN, Ph.D.

U.S. DEPARTMENT OF JUSTICE         CHEVALIER, ALLEN, & LICHMAN, LLP

Dated: ___________________ Dated: _____________________