April 30, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Supplemental Order

Names of Petitioners:Benton County, Washington

Office of Civilian Radioactive Waste Management

Date of Filing: April 28, 1997

Case Number: VPX-0011

This Supplemental Order is being issued to adopt a Joint Stipulation of Benton County, Washington and the Department of Energy, through its Office of Civilian Radioactive Waste Management (OCRWM), in which they agree to settle any and all disputes concerning DOE's liability to Benton County for "payments-equal-to-taxes" (PETT) under the Nuclear Waste Policy Act of 1982, as amended (NWPA).

On December 19, 1996, the Office of Hearings and Appeals (OHA) issued a Decision and Order on an appeal filed by Benton County under OCRWM's Notice of Interpretation and Procedures implementing the PETT provisions of the NWPA. Benton County, Washington, 26 DOE ¶ 80,145 (1996). In its appeal, Benton County had challenged the amount of the PETT grant initially awarded to it by the DOE's Richland Operations Office (DOE/RL). Our December 19, 1996 Decision considered and resolved many disputed legal and factual issues, but it did not fix the amount of Benton County's PETT grant. Instead, that Decision concluded by directing DOE/RL to confer in good faith with Benton County and apply the approach used to negotiate a PETT settlement with Nye County, Nevada to resolve this case within a specified time period, according to the principles of alternative dispute resolution applicable to government agencies. Id. at 80,625; 80,641-642.

The parties took our suggestion to heart, and entered into settlement negotiations with a mediator. The time period specified in our December 19, 1996 Decision for concluding settlement negotiations was twice extended at their request. On April 28, 1997, the parties advised the OHA that they had reached agreement on a Joint Stipulation which fully resolves any and all disputes concerning DOE's PETT liability to Benton County. On April 30, 1997, the parties filed an executed copy of the Joint Stipulation which has been approved by their respective principals. We have considered and will adopt the Joint Stipulation, which is appended hereto and incorporated by reference in this Supplemental Order. This Supplemental Order and the incorporated Stipulation shall have the same force and effect as if this Order had been entered without a Stipulation and after a hearing in this matter. Since this matter has been settled by the Stipulation, the appeal filed by Benton County on November 4, 1993 shall be dismissed with prejudice.

IT IS THEREFORE ORDERED THAT:

(1) The Joint Stipulation of Benton County, Washington and the Department of Energy appended hereto is hereby incorporated by reference, and the terms and conditions of that Stipulation are made a part of this Supplemental Order.

(2) The terms and conditions of the incorporated Stipulation are hereby adopted and issued as a final order of the Department of Energy.

(3) This Supplemental Order and the incorporated Stipulation shall have the same force and effect as if this Order had been entered without a Stipulation and after a hearing in this matter.

(4) The appeal filed by Benton County on November 4, 1993, OHA Case No. LPA-0001, is hereby dismissed with prejudice.

George B. Breznay

Director

Office of Hearings and Appeals

Date: April 30, 1997

JOINT STIPULATION OF BENTON COUNTY, WASHINGTON, AND

OFFICE OF CIVILIAN RADIOACTIVE WASTE MANAGEMENT OF THE DEPARTMENT OF ENERGY FOR INCORPORATION IN AN ORDER OF THE

OFFICE OF HEARINGS AND APPEALS IN CASE NO. LPA-0001

Pursuant to the December 19, 1996, Order of the Office of Hearings and Appeals in case no. LPA- 0001, the Office of Civilian Radioactive Waste Management (OCRWM) of the Department of Energy (DOE) and Benton County hereby agree, stipulate, and request that the Office of Hearings and Appeals of DOE (OHA) enter a final order adopting the following terms and conditions:

In full satisfaction of any and all liability to Benton County for Payments-Equal-to-Taxes pursuant to 42 U.S.C. 10136 for all periods of time, OCRWM shall owe Benton County $6,020,709, of which $5,250,000 remains unpaid at the date of the entry of the Order by OHA incorporating this Stipulation. The remaining liability of $5,250,000 shall be discharged in accordance with the schedule of principal, interest, and ancillary terms set forth below.

1. A payment of $2,250,000, plus interest, shall be made by OCRWM to the Benton County Treasurer within approximately thirty (30) days of the entry of an Order by OHA incorporating this Stipulation. Interest at the twelve-month Treasury Bill rate in effect as of the date of the OHA Order, compounded annually, shall accrue from the date of entry of the OHA Order until the date of payment. Any deficiency or overpayment of interest on this principal amount, as a result of the need to estimate the interest in advance of issuance of the check, shall be reflected in the payment of the remaining balance.
2. A payment, in full, of the remaining principal balance of $3,000,000, plus interest (and any adjustment for interest associated with the initial payment above), shall be made by OCRWM within approximately thirty (30) days of the earlier to occur of the enactment of OCRWM's Fiscal Year 1998 Congressional appropriation or December 31, 1997. Interest will accrue on the $3,000,000 balance from the date of the entry of the OHA Order adopting this Stipulation to the date of payment, at the rate in effect as of the date of the entry of OHA's Order.
3. The terms and conditions of this Stipulation were arrived at through the process of negotiation in light of all the facts and circumstances, and the sums which are due and payable under this Stipulation were arrived at without agreement on any particular property valuation methodology that may have been put forward by either party during the course of these proceedings.
4. The Order entered by OHA pursuant to this Stipulation shall have the same force and effect as if the Order had been entered without a stipulation and after a hearing in this matter.

Dated: 4/30/97

Office of Civilian Radioactive Waste Management:
Samuel Rousso
On Behalf of Office of Civilian
Radioactive Waste Management

Benton County, Washington:
L. Graeme Bell, III
Attorney for the Benton County
Board of Commissioners