IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION
UNITED STATES OF AMERICA and STATE OF MONTANA,
Plaintiffs,
and
STATE OF NEVADA and STATE OF WEST VIRGINIA,
Co-Plaintiffs,
v.
TORCHLIGHT MINING CORP.; TORCHLIGHT MINING (U.S.) INC.; TORCHLIGHT SPECIALTY CHEMICALS, INC.; RIDGECREST MINE HOLDINGS, LLC; and BONANZA CREEK MINING, LLC,
Defendants.
Civil Action No. 9:24-cv-00087-DWM
Hon. Donald W. Molloy, Senior U.S. District Judge
CONSENT DECREE
Execution Version — For Lodging
February 19, 2025
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I. BACKGROUND AND RECITALS
A. Procedural History
1. On January 18, 2024, the United States of America ("United States"), on behalf of the United States Environmental Protection Agency ("EPA"), by and through the undersigned attorneys of the United States Department of Justice ("DOJ"), Environment and Natural Resources Division ("ENRD"), Environmental Enforcement Section, filed its Complaint in this action, Civil Action No. 9:24-cv-00087-DWM, in the United States District Court for the District of Montana, Missoula Division. The Complaint alleged violations of the Federal Water Pollution Control Act, commonly known as the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251–1387; the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901–6992k; and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601–9675, arising from contamination, releases, and improper waste management at four mining and chemical-manufacturing facilities operated by the Defendants in the States of Montana, Nevada, and West Virginia.
2. The State of Montana, through the Montana Attorney General's Office, joined as a co-plaintiff in the Complaint. Subsequently, the State of Nevada, through the Nevada Attorney General's Office, and the State of West Virginia, through the West Virginia Attorney General's Office, each intervened and joined this action as co-plaintiffs, with the United States' consent and by leave of the Court.
3. The United States has been represented throughout this action by the DOJ, ENRD, Environmental Enforcement Section. Philip Orenstein served as Lead DOJ Trial Attorney, and Katherine Rowe-Halpern served as Supervising DOJ Attorney. Margaret Coulson, of the EPA Office of Enforcement and Compliance Assurance ("OECA"), served as Lead EPA Case Attorney.
4. State counsel in this action has included: Annika Hedstrom, Assistant Attorney General, Environmental Bureau, Montana Attorney General's Office, representing the State of Montana; Ricardo Fuentes, Deputy Attorney General, Nevada Attorney General's Office, representing the State of Nevada; and Loretta May Hatcher, Assistant Attorney General, West Virginia Attorney General's Office, representing the State of West Virginia.
5. On March 5, 2024, Defendants filed their Answer to the Complaint, denying the material allegations and asserting various affirmative defenses.
6. On April 22, 2024, the Parties entered into a Tolling Agreement tolling the applicable statutes of limitations through December 31, 2025, so as to facilitate settlement negotiations without prejudice to any Party's substantive rights.
7. On May 15, 2024, the Court referred this matter to Magistrate Judge Clara Finnegan for court-ordered mediation. The Parties participated in mediation sessions before Magistrate Judge Finnegan and, through extensive negotiations, reached an agreement in principle on a consent-decree framework on July 30, 2024.
8. Following the agreement in principle, the Parties, through their counsel, engaged in further detailed negotiations to finalize the terms of this Consent Decree, including the remediation obligations, financial assurance requirements, civil penalty amounts, supplemental environmental projects, and monitoring provisions set forth herein.
B. Description of the Defendants
9. Torchlight Mining Corp. ("TMC") is a corporation incorporated under the Canada Business Corporations Act ("CBCA"), with its principal offices located at 1800 Bayfield Tower, 401 Bay Street, Toronto, Ontario M5H 2Y4, Canada. TMC is dual-listed on the Toronto Stock Exchange (TSX: TRC) and the New York Stock Exchange (NYSE: TRC). TMC maintains its U.S. headquarters at 750 Copper Ridge Boulevard, Suite 200, Helena, Montana 59601. Douglas K. Prennell serves as Chief Executive Officer, and Miriam Soo-Hwan Park serves as General Counsel. TMC is a diversified mining and specialty chemicals company engaged in the exploration, development, extraction, and processing of copper, molybdenum, and gold, as well as the manufacture of specialty mining chemicals. TMC reported consolidated revenue for fiscal year 2023 of approximately C$4.82 billion (approximately US$3.56 billion). TMC employs approximately 11,400 persons worldwide, of whom approximately 4,200 are employed in the United States.
10. Torchlight Mining (U.S.) Inc. ("TM(US)") is a corporation organized and existing under the laws of the State of Delaware, with Employer Identification Number ("EIN") 83-2047156. TM(US) is a wholly owned subsidiary of TMC and serves as the direct operator of TMC's mining operations within the United States. TM(US) maintains its registered agent for service of process as Ashgrove Services Inc., 1209 Orange Street, Wilmington, Delaware 19801.
11. Torchlight Specialty Chemicals, Inc. ("TSC") is a corporation organized and existing under the laws of the State of Delaware, with EIN 47-3819204. TSC is a wholly owned subsidiary of TMC, held through TM(US), and is the operator of the Gallatin Chemical Works facility in Belgrade, Montana, and the Kanawha Bend Chemical Plant in Institute, West Virginia. TSC is engaged in the manufacture of specialty chemicals used in mining processes, including flotation reagents, leaching agents, and related compounds.
12. Ridgecrest Mine Holdings, LLC ("RMH") is a limited liability company organized and existing under the laws of the State of Montana, Montana Secretary of State Identification Number E1042738. RMH is wholly owned by TM(US) and holds real property interests and mineral rights associated with the Ridgecrest Copper-Molybdenum Mine in Drummond, Granite County, Montana.
13. Bonanza Creek Mining, LLC ("BCM") is a limited liability company organized and existing under the laws of the State of Nevada, Nevada Secretary of State Entity Number E0518294731. BCM is wholly owned by TM(US) and holds real property interests, mineral rights, and water rights associated with the Bonanza Creek Gold Mine in Lander County, Nevada.
C. Description of the Sites
14. Ridgecrest Copper-Molybdenum Mine ("Ridgecrest Site"): The Ridgecrest Site is located at 14200 Ridgecrest Mine Road, Drummond, Granite County, Montana 59832. The mine footprint encompasses approximately 3,200 acres, with the total controlled property area comprising approximately 8,700 acres. The Ridgecrest Site is an open-pit copper-molybdenum mine that became operational in 1978. Active mining operations ceased on December 31, 2019, and the Site is currently undergoing closure and reclamation activities. The Ridgecrest Site has been proposed for listing on the National Priorities List ("NPL") under CERCLA and is currently being addressed under an Administrative Order on Consent, Docket No. CERCLA-08-2022-0039, executed on September 15, 2022. The EPA Region 8 office in Denver, Colorado, serves as the lead office for this Site. Dr. Samuel Tesfaye has been designated as the EPA Project Coordinator for the Ridgecrest Site.
15. Gallatin Chemical Works ("Gallatin Site"): The Gallatin Site is located at 8800 Industrial Park Lane, Belgrade, Gallatin County, Montana 59714. The facility occupies approximately 145 acres and is engaged in specialty chemical manufacturing, including the production of flotation reagents, sodium xanthate, and dithiophosphate collectors. The Gallatin Site has been in operation since 1993 and remains an active manufacturing facility. The Gallatin Site is subject to RCRA corrective action requirements under RCRA Permit No. MTD098712456. The EPA Region 8 office serves as the lead office for this Site.
16. Bonanza Creek Gold Mine ("Bonanza Creek Site"): The Bonanza Creek Site is located at County Road 447, Mile Marker 12, Lander County, Nevada 89820. The mine footprint encompasses approximately 5,600 acres, with the total controlled property area comprising approximately 12,400 acres. The Bonanza Creek Site is an open-pit heap-leach gold mine that has been in operation since 2001 and where active mining operations are ongoing. The Bonanza Creek Site is subject to both RCRA corrective action and CWA enforcement. The EPA Region 9 office in San Francisco, California, serves as the lead office for this Site. Jennifer Whitfield has been designated as the EPA Project Coordinator for the Bonanza Creek Site.
17. Kanawha Bend Chemical Plant ("Kanawha Bend Site"): The Kanawha Bend Site is located at 2200 Chemical Valley Road, Institute, Kanawha County, West Virginia 25112. The facility occupies approximately 78 acres and is engaged in chemical manufacturing, including the production of leaching agents and sulfuric acid regeneration. The Kanawha Bend Site has been in operation since 1985 and remains an active facility. The Kanawha Bend Site is subject to RCRA corrective action requirements under RCRA Permit No. WVD048823915. The EPA Region 3 office in Philadelphia, Pennsylvania, serves as the lead office for this Site.
D. Nature of Alleged Violations
18. Clean Water Act Violations. The Complaint alleges violations of Section 301 of the CWA, 33 U.S.C. § 1311, at multiple Sites, as follows:
(a) Ridgecrest Site: Unpermitted discharges of acid mine drainage ("AMD") to Flint Creek, a water of the United States. The AMD discharges contained dissolved copper at average concentrations of 47 mg/L, in excess of the Montana chronic aquatic life standard of 0.0087 mg/L; molybdenum at average concentrations of 1.2 mg/L; selenium at average concentrations of 0.082 mg/L; and sulfate at average concentrations of 3,400 mg/L. In addition, seepage from the 425-acre tailings impoundment at the Ridgecrest Site constituted unpermitted discharges of pollutants to waters of the United States.
(b) Gallatin Site: Fourteen (14) exceedances of Montana Pollutant Discharge Elimination System ("MPDES") permit effluent limits for carbon disulfide (CS₂) and total suspended solids ("TSS") between January 2021 and June 2024.
(c) Bonanza Creek Site: Three (3) unpermitted discharges of process solution from the heap-leach pad via a torn liner to an ephemeral tributary of the Reese River, a water of the United States, occurring on March 17, 2022; August 9, 2022; and January 22, 2023. The discharged process solution contained weak acid dissociable ("WAD") cyanide at concentrations of 0.62 mg/L, in excess of the applicable limit of 0.022 mg/L, and mercury at average concentrations of 12.4 µg/L, in excess of the applicable criterion of 0.77 µg/L.
19. RCRA Violations. The Complaint alleges violations of Sections 3004 and 3005 of RCRA, 42 U.S.C. §§ 6924, 6925, at all four Sites, as follows:
(a) Ridgecrest Site: Mismanagement of hazardous waste generated from the solvent-extraction/electrowinning ("SX-EW") circuit, including improper storage, treatment, and disposal of spent organic extractant and electrolyte solutions containing hazardous constituents.
(b) Gallatin Site: Operation of an unpermitted hazardous-waste storage unit; failure to perform corrective action at three Solid Waste Management Units ("SWMUs"); and contamination of groundwater with carbon disulfide (CS₂) at maximum concentrations of 890 µg/L, in excess of the Maximum Contaminant Level ("MCL") of 10 µg/L, as well as contamination of subsurface soils with toluene and xylene.
(c) Bonanza Creek Site: Improper management of spent heap-leach ore as hazardous waste, including failure to characterize, store, and dispose of spent ore in accordance with RCRA Subtitle C requirements.
(d) Kanawha Bend Site: Failure to properly close a former surface impoundment; unpermitted treatment of listed hazardous wastes K062 (spent pickle liquor from steel finishing operations) and D002 (corrosive hazardous waste); sulfuric acid residuals with pH as low as 1.8; soil contamination with lead at maximum concentrations of 4,200 mg/kg and arsenic at maximum concentrations of 890 mg/kg; and the presence of dense non-aqueous phase liquid ("DNAPL") in a fractured bedrock aquifer underlying the facility.
20. CERCLA Cost Recovery. The Complaint seeks recovery of past costs incurred by EPA pursuant to Section 107 of CERCLA, 42 U.S.C. § 9607, in the total amount of $18,100,000, consisting of: (a) $14,300,000 for EPA removal actions conducted at the Ridgecrest Site between January 15, 2021, and May 30, 2023; and (b) $3,800,000 for EPA emergency response at the Kanawha Bend Site following a sulfuric acid release to a tributary of the Kanawha River on June 14, 2020.
21. Migratory Bird Treaty Act. The Complaint further alleges violations of the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. §§ 703–712, based on seventeen (17) documented avian mortalities at process-solution ponds at the Bonanza Creek Site during the period 2021–2023.
22. Defendants' Position. Defendants do not admit any liability or wrongdoing with respect to the claims alleged in the Complaint and consent to the entry of this Decree solely for purposes of settlement and to avoid the burden, expense, and uncertainty of protracted litigation. Nothing in this Consent Decree shall constitute an admission by Defendants of any fact, finding, conclusion of law, or liability.
E. Purpose
23. This Consent Decree resolves and settles all claims alleged in the Complaint, including all claims arising under the CWA, RCRA, CERCLA, and the MBTA, subject to the reservations of rights set forth in Section XVIII of this Decree.
24. The purpose of this Consent Decree is to establish the remediation obligations, civil penalties, supplemental environmental projects, financial assurance requirements, and compliance monitoring mechanisms necessary to address the environmental contamination and violations at the Sites, to restore and protect human health and the environment, and to ensure Defendants' future compliance with applicable environmental laws and regulations.
25. The Parties agree, and the Court, by entering this Decree, finds, that this Consent Decree is fair, reasonable, and in the public interest, and that this Decree adequately protects the interests of the United States, the State co-plaintiffs, the affected communities, and the environment.
26. This Consent Decree is being lodged with the Court on February 19, 2025, for a thirty (30)-day public comment period pursuant to 28 U.S.C. § 7003(d) and Department of Justice policy. The public comment period closes on March 21, 2025. The United States will consider any public comments received during the comment period and will file a response to such comments, together with a motion for entry of this Decree.
NOW, THEREFORE, before the taking of any testimony, without adjudication or admission of any issue of fact or law, and upon the consent of the Parties, it is hereby ORDERED, ADJUDGED, AND DECREED as follows:
II. JURISDICTION AND VENUE
27. This Court has subject matter jurisdiction over this action and the claims asserted herein pursuant to 28 U.S.C. §§ 1331 and 1345; Section 309(b) of the CWA, 33 U.S.C. § 1319(b); Section 3008(a) of RCRA, 42 U.S.C. § 6928(a); and Sections 106, 107, and 113 of CERCLA, 42 U.S.C. §§ 9606, 9607, and 9613. This Court also has personal jurisdiction over the Defendants.
28. Venue is proper in the District of Montana pursuant to Section 309(b) of the CWA, 33 U.S.C. § 1319(b); Section 3008(a) of RCRA, 42 U.S.C. § 6928(a); and 28 U.S.C. § 1391(b) and (c), inasmuch as a substantial part of the events or omissions giving rise to the claims alleged in the Complaint occurred in the State of Montana, and Defendants conduct substantial business operations within this District.
29. Defendants consent to and shall not challenge the jurisdiction of this Court over the subject matter of this action or over the Defendants, and Defendants waive all objections to venue in this District.
30. For purposes of this Consent Decree, Defendants agree that they are and shall remain subject to the personal jurisdiction of this Court for the entire duration of this Decree, including for purposes of the interpretation, implementation, and enforcement of any and all terms of this Decree and the resolution of any disputes arising hereunder.
31. Solely for purposes of this Consent Decree, Defendants further agree that the Complaint states claims upon which relief may be granted against Defendants under the CWA, RCRA, CERCLA, and the MBTA.
III. PARTIES BOUND
32. This Consent Decree shall be binding upon the United States of America; the States of Montana, Nevada, and West Virginia; and the Defendants — Torchlight Mining Corp., Torchlight Mining (U.S.) Inc., Torchlight Specialty Chemicals, Inc., Ridgecrest Mine Holdings, LLC, and Bonanza Creek Mining, LLC — and upon their respective officers, directors, agents, employees, successors, and assigns.
33. Torchlight Mining Corp. shall ensure that all of its subsidiaries and affiliated entities, including but not limited to TM(US), TSC, RMH, and BCM, comply with all obligations imposed upon the Defendants by this Consent Decree. TMC's obligation to ensure subsidiary compliance is joint and several with the obligations of each subsidiary Defendant with respect to that subsidiary's specific Site obligations.
34. No change in the ownership, corporate status, or organizational structure of any Defendant, including but not limited to any merger, acquisition, divestiture, dissolution, reorganization, or bankruptcy, shall in any way alter, diminish, or otherwise affect any Defendant's obligations under this Consent Decree.
35. Defendants shall provide written notice to Plaintiffs, Co-Plaintiffs, the Independent Monitor, and the Court not less than sixty (60) Days prior to any proposed transfer of ownership or operations of any of the Sites, or any transfer of a controlling interest in any Defendant entity. Such notice shall identify the proposed transferee, describe the nature and terms of the proposed transfer, and specify the measures by which the obligations under this Decree will continue to be fulfilled. No transfer of ownership or operations shall relieve Defendants of their obligations under this Decree unless the transferee has been approved by EPA and the Court and has expressly assumed all such obligations in writing, and such assumption has been made an order of this Court.
36. Defendants shall provide a copy of this Consent Decree to each contractor, subcontractor, laboratory, and consultant retained to perform any work required by this Decree within fourteen (14) Days of the later of: (a) the Effective Date; or (b) the date of retention of such contractor, subcontractor, laboratory, or consultant.
IV. DEFINITIONS
37. Unless otherwise expressly provided in this Consent Decree, terms used herein that are defined in the CWA, RCRA, CERCLA, or in regulations promulgated under those statutes shall have the meanings assigned to them in those statutes or regulations. The following additional definitions shall apply to this Consent Decree:
(a) "Consent Decree" or "Decree" shall mean this Consent Decree and all appendices attached hereto, which are incorporated herein by reference.
(b) "Complaint" shall mean the Complaint filed by the United States and the State of Montana in this action on January 18, 2024, as subsequently supplemented by the interventions of the States of Nevada and West Virginia.
(c) "Corrective Action" shall mean all activities necessary to investigate, characterize, and remediate releases of hazardous waste or hazardous constituents at or from a RCRA-regulated facility, as required by Section 3004(u) or Section 3008(h) of RCRA, 42 U.S.C. §§ 6924(u), 6928(h), and applicable regulations, including but not limited to RCRA Facility Investigations, Corrective Measures Studies, Corrective Measures Implementation, and associated monitoring.
(d) "Day" shall mean a calendar day unless otherwise expressly specified. In computing any period of time under this Decree, where the last day falls on a Saturday, Sunday, or federal holiday, the period shall run until the end of the next business day.
(e) "Defendants" shall mean Torchlight Mining Corp., Torchlight Mining (U.S.) Inc., Torchlight Specialty Chemicals, Inc., Ridgecrest Mine Holdings, LLC, and Bonanza Creek Mining, LLC, collectively, and each of them individually where the context requires.
(f) "Effective Date" shall mean the date that is thirty (30) Days after the date of entry of this Consent Decree by the Court. Based on the target entry date of May 15, 2025, the anticipated Effective Date is June 14, 2025.
(g) "EPA" shall mean the United States Environmental Protection Agency, including EPA Region 8 (for matters pertaining to the Ridgecrest and Gallatin Sites in Montana), EPA Region 9 (for matters pertaining to the Bonanza Creek Site in Nevada), and EPA Region 3 (for matters pertaining to the Kanawha Bend Site in West Virginia), as applicable.
(h) "Independent Monitor" or "Monitor" shall mean Verdant Analytics, Inc., as appointed pursuant to Section XIV of this Decree.
(i) "Plaintiffs" shall mean the United States of America and the State of Montana. "Co-Plaintiffs" shall mean the States of Nevada and West Virginia.
(j) "Remedial Action" shall mean all activities necessary to investigate, characterize, design, construct, implement, operate, maintain, and monitor a remedy or corrective action at any of the Sites, as required by this Decree, CERCLA, RCRA, the CWA, and applicable regulations.
(k) "Remediation Trust Fund" or "Trust Fund" shall mean the environmental remediation trust fund established pursuant to Section XI.C of this Decree under Trust Agreement No. LTC-REM-2025-1177.
(l) "SEP" or "Supplemental Environmental Project" shall mean one or more of the three supplemental environmental projects described in Section IX of this Decree.
(m) "Sites" shall mean the Ridgecrest Copper-Molybdenum Mine, the Gallatin Chemical Works, the Bonanza Creek Gold Mine, and the Kanawha Bend Chemical Plant, collectively, each as more fully described in Section I.C.
(n) "Work Plan" shall mean any remedial action work plan, corrective measures study, corrective measures implementation plan, scope of work, design document, or similar technical document required to be submitted by Defendants under this Decree for EPA review and approval.
(o) "Completion Criteria" shall mean the site-specific performance standards and benchmarks, set forth in Appendices A through C, that must be achieved and sustained over the defined monitoring periods in order for Defendants' remedial obligations at a particular Site to be considered fulfilled.
(p) "Performance Standards" shall mean the numerical cleanup standards, effluent limits, and monitoring benchmarks set forth in Appendices A through C and in any EPA-approved Work Plan, which Defendants are required to achieve at each Site.
(q) "Parties" shall mean the United States, the State of Montana, the State of Nevada, the State of West Virginia, and the Defendants, collectively.
V. CIVIL PENALTY
A. Total Civil Penalty
38. Defendants shall pay a total civil penalty in the aggregate amount of $31,500,000 (Thirty-One Million Five Hundred Thousand Dollars), apportioned among the Sites as follows:
39. The civil penalty reflects the Parties' negotiated resolution of the statutory penalty claims for violations of the CWA, RCRA, and the MBTA, taking into account the statutory penalty factors including the seriousness of the violations, economic benefit of noncompliance, history of such violations, good faith efforts to comply, and ability to pay.
B. Payment Schedule
40. The total civil penalty of $31,500,000 shall be paid in four (4) equal quarterly installments as follows:
(a) First Installment: $7,875,000 due and payable within thirty (30) Days of the Effective Date (i.e., by approximately July 14, 2025).
(b) Second Installment: $7,875,000 due and payable twelve (12) months after the Effective Date (i.e., by approximately June 14, 2026).
(c) Third Installment: $7,875,000 due and payable twenty-four (24) months after the Effective Date (i.e., by approximately June 14, 2027).
(d) Fourth Installment: $7,875,000 due and payable thirty-six (36) months after the Effective Date (i.e., by approximately June 14, 2028).
C. Method of Payment
41. Each installment of the civil penalty shall be paid by electronic funds transfer ("EFT") to the United States Department of Justice, in accordance with instructions to be provided by DOJ following the Effective Date, or as otherwise directed by the DOJ Financial Litigation Unit. Each payment shall reference Civil Action No. 9:24-cv-00087-DWM, the DOJ case number, and the Defendants' Employer Identification Numbers (EIN 83-2047156 for TM(US) and EIN 47-3819204 for TSC).
42. Concurrent with each penalty payment, Defendants shall send written notice of payment, including the EFT confirmation number, to the DOJ ENRD, the EPA OECA, and each state co-plaintiff, at the addresses set forth in Section XVII.C of this Decree.
D. Interest on Late Payments
43. If any installment of the civil penalty is not paid by the applicable due date, interest shall accrue on the unpaid amount from the due date until the date payment is received, at the rate established by 28 U.S.C. § 1961, which is the weekly average one-year constant maturity Treasury yield as published by the Board of Governors of the Federal Reserve System for the calendar week preceding the date of the Court's judgment.
44. Interest accrued under this Paragraph shall be in addition to, and shall not diminish, any stipulated penalties that may accrue under Section XII of this Decree for failure to make timely payments.
E. State Shares
45. The allocation of civil penalty proceeds among the United States, the State of Montana, the State of Nevada, and the State of West Virginia shall be as agreed among the Plaintiffs and Co-Plaintiffs, and as set forth in a separate inter-governmental agreement among those parties, which is not a part of this Consent Decree. Defendants shall not be responsible for, and shall not be required to resolve, any dispute among the Plaintiffs and Co-Plaintiffs regarding the allocation of penalty proceeds.
VI. EPA PAST-COSTS REIMBURSEMENT
A. Total Amount
46. Defendants shall reimburse EPA for past response costs in the total amount of $18,100,000 (Eighteen Million One Hundred Thousand Dollars), consisting of:
(a) $14,300,000 for response costs incurred by EPA in connection with removal actions conducted at the Ridgecrest Site during the period January 15, 2021, through May 30, 2023, including but not limited to the construction and operation of interim AMD treatment facilities, emergency stabilization of the tailings impoundment, and associated oversight, sampling, and monitoring costs; and
(b) $3,800,000 for response costs incurred by EPA in connection with the emergency response following the June 14, 2020 sulfuric acid release at the Kanawha Bend Site to a tributary of the Kanawha River, including containment, neutralization, environmental sampling, fish-kill assessment, and associated oversight costs.
47. The past-cost reimbursement amount of $18,100,000 represents the total documented past costs incurred by EPA at both Sites as of the date of this Decree and constitutes full and final reimbursement of all EPA past costs at those Sites, subject to the reservations set forth in Section XVIII.
B. Payment
48. The full past-cost reimbursement amount of $18,100,000 shall be due and payable within sixty (60) Days of the Effective Date (i.e., by approximately August 13, 2025).
49. Payment shall be made by EFT to the EPA Hazardous Substance Superfund, Cincinnati Finance Center, or as otherwise directed by EPA. Each payment shall reference Administrative Order on Consent Docket No. CERCLA-08-2022-0039 (for the Ridgecrest Site costs) and Civil Action No. 9:24-cv-00087-DWM. Defendants shall provide written confirmation of payment to EPA OECA, EPA Region 8, and the DOJ ENRD at the addresses set forth in Section XVII.C.
C. Interest
50. If the past-cost reimbursement is not paid by the applicable due date, interest shall accrue on the unpaid amount from the due date until the date payment is received, at the rate specified in Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), which is the rate established by the Secretary of the Treasury for interest payments made pursuant to Section 6621(a)(2) of the Internal Revenue Code, 26 U.S.C. § 6621(a)(2).
VII. REMEDIAL ACTION OBLIGATIONS — RIDGECREST SITE
A. Scope of Remedy
51. Defendants shall design, construct, implement, operate, maintain, and monitor a comprehensive remedy at the Ridgecrest Site that shall include, at a minimum, the following components:
(a) Acid Mine Drainage Treatment System. Defendants shall design, construct, and operate an active water treatment system to collect and treat acid mine drainage from the open-pit mine, waste-rock dumps, and associated disturbed areas. The treatment system shall be designed to reduce concentrations of dissolved copper, molybdenum, selenium, and sulfate in all discharges to Flint Creek and its tributaries to levels at or below the applicable Montana surface-water quality standards for the protection of aquatic life, including the Montana chronic aquatic life standard for dissolved copper of 0.0087 mg/L, as well as applicable standards for molybdenum, selenium, and sulfate. The treatment system shall be capable of treating the full range of anticipated acid mine drainage flows under normal, wet-year, and extreme-event hydrologic conditions.
(b) Tailings Impoundment Stabilization. Defendants shall design and implement a comprehensive stabilization program for the 425-acre tailings impoundment at the Ridgecrest Site, including: (i) installation of a multi-layer engineered cover system incorporating an evapotranspiration layer, a low-permeability barrier layer, and a drainage layer; (ii) repair and reinforcement of the existing liner system; (iii) installation and operation of a seepage interception and collection system along the downstream toe of the tailings embankment and at identified seepage locations; and (iv) long-term geotechnical monitoring of dam stability.
(c) Flint Creek Water Quality Restoration. Defendants shall implement measures to restore water quality in Flint Creek downstream of the Ridgecrest Site, including but not limited to in-stream and riparian restoration activities, sediment removal in contaminated reaches, and long-term biological monitoring to assess recovery of aquatic habitat and macroinvertebrate and fish communities.
(d) Long-Term Operation and Maintenance. Defendants shall operate and maintain all remedial systems and infrastructure at the Ridgecrest Site for the duration of the remediation period, including but not limited to the acid mine drainage treatment system, the tailings impoundment cover system and seepage collection system, groundwater monitoring systems, and surface-water monitoring stations. The O&M program shall include provisions for equipment replacement, system upgrades, and adaptive management as necessary to meet Performance Standards.
B. Negotiated Cost
52. The total estimated cost of the Ridgecrest Site remedy over the thirty (30)-year remediation period is $198,600,000 (One Hundred Ninety-Eight Million Six Hundred Thousand Dollars) in nominal dollars. This amount reflects the negotiated resolution of the Parties' differing cost estimates, with Defendants having estimated total remedy costs at approximately $187,500,000 and EPA having estimated total remedy costs at approximately $224,000,000. The net present value of the Ridgecrest Site remedy, calculated at a three percent (3%) discount rate, is approximately $134,900,000.
53. Defendants shall bear all costs of the Ridgecrest Site remedy, including but not limited to the costs of design, construction, operation, maintenance, monitoring, sampling, reporting, and any necessary modifications to the remedy. The negotiated cost amount set forth in Paragraph 52 reflects the Parties' best estimate of total remedy costs at the time of lodging; however, Defendants' remedial obligations are defined by the Performance Standards and Completion Criteria set forth in this Decree and Appendix A, and Defendants shall be responsible for all costs necessary to achieve and sustain those standards, regardless of whether actual costs exceed the negotiated estimate.
C. Key Milestones
54. Defendants shall comply with the following key milestones for the Ridgecrest Site remedy, in addition to the detailed annual and five-year milestone benchmarks set forth in Appendix A (Ridgecrest 30-Year Milestone Table):
(a) By December 14, 2025 (approximately six (6) months after the Effective Date): Defendants shall submit a complete Ridgecrest Remedial Action Work Plan to EPA Region 8 for review and approval. The Work Plan shall include, at a minimum, a conceptual site model, a detailed description of all remedy components, engineering design documents to a minimum of thirty percent (30%) design level, a construction schedule, a monitoring plan, and a quality assurance/quality control plan.
(b) By June 14, 2027 (approximately two (2) years after the Effective Date): Defendants shall commence construction of the Ridgecrest Site remedy, including the acid mine drainage treatment system and the tailings impoundment stabilization program.
(c) The Ridgecrest Site remediation obligation shall extend for a minimum of thirty (30) years from the Effective Date, through June 14, 2055, unless extended pursuant to the Completion Criteria and applicable provisions of this Decree. The thirty-year period encompasses the full duration of active remediation, long-term O&M, and post-remediation monitoring.
(d) Defendants shall comply with all annual and five-year milestone benchmarks as set forth in Appendix A, which is attached hereto and incorporated herein by reference.
D. EPA Oversight
55. EPA Region 8 shall serve as the lead oversight office for the Ridgecrest Site remedy. Dr. Samuel Tesfaye shall serve as the EPA Project Coordinator. EPA shall have the authority to review and approve all Work Plans, design documents, monitoring plans, progress reports, and certifications of completion submitted by Defendants for the Ridgecrest Site.
56. The United States has retained Cascade Geosciences, Inc., located at 804 Salmon Bay Drive, Seattle, Washington 98107, as its technical expert for the Ridgecrest Site. Dr. Patricia Voss, Ph.D. (Hydrogeology), of Cascade Geosciences, shall serve as the government's principal technical consultant. Defendants shall reimburse EPA for all reasonable costs incurred in connection with Cascade Geosciences' oversight activities, as set forth in the Financial Assurance provisions of this Decree.
57. Defendants have retained Pinnacle Creek Environmental, LLC, located at 320 Willowbrook Drive, Suite 100, Bozeman, Montana 59715, as their environmental remediation consultant for the Ridgecrest Site. Dr. Astrid Bergmann, P.E., of Pinnacle Creek Environmental, shall serve as the Defendants' principal technical consultant for design and implementation of the Ridgecrest Site remedy.
E. Existing AOC
58. This Consent Decree supersedes and replaces the Administrative Order on Consent, Docket No. CERCLA-08-2022-0039, executed on September 15, 2022, with respect to all obligations, requirements, and provisions of that AOC pertaining to the Ridgecrest Site. Upon the Effective Date of this Decree, the AOC shall be deemed terminated and of no further force or effect as to the Ridgecrest Site, and all obligations formerly arising under the AOC shall henceforth be governed exclusively by the terms of this Decree. The past-cost reimbursement set forth in Section VI of this Decree includes all response costs incurred by EPA under or in connection with the AOC.
VIII. REMEDIAL ACTION OBLIGATIONS — GALLATIN, BONANZA CREEK, AND KANAWHA BEND SITES
A. Gallatin Chemical Works
59. Defendants shall design, implement, and complete corrective action at the Gallatin Chemical Works in accordance with the requirements of RCRA Permit No. MTD098712456 and this Consent Decree. The corrective action shall address, at a minimum, the following:
(a) Investigation and remediation of three (3) identified Solid Waste Management Units ("SWMUs") at the Gallatin Site, including characterization of the nature and extent of contamination at each SWMU, evaluation of corrective measures alternatives, and implementation of the selected corrective measures.
(b) Remediation of groundwater contamination by carbon disulfide (CS₂), which has been detected at maximum concentrations of 890 µg/L, in exceedance of the MCL of 10 µg/L. Defendants shall implement a groundwater remediation system designed to achieve and sustain CS₂ concentrations at or below the MCL throughout the facility's compliance monitoring well network.
(c) Remediation of volatile organic compound ("VOC") contamination in subsurface soils, including toluene and xylene, to levels protective of human health and the environment, in accordance with risk-based cleanup levels approved by EPA.
(d) Ongoing compliance with all MPDES permit effluent limits for all point-source discharges from the Gallatin Site, including limits for CS₂ and total suspended solids.
60. The total estimated cost of corrective action at the Gallatin Site is $42,800,000 in nominal dollars over a fifteen (15)-year period. The net present value, calculated at a three percent (3%) discount rate, is approximately $34,100,000.
61. Key Milestone: By June 14, 2026 (approximately one (1) year after the Effective Date), Defendants shall submit a complete Gallatin Corrective Measures Study to EPA Region 8 for review and approval, in accordance with the scope of work and schedule set forth in Appendix B.
B. Bonanza Creek Gold Mine
62. Defendants shall design, implement, and complete remedial actions at the Bonanza Creek Gold Mine as required by this Consent Decree, including the following:
(a) Liner Repair and Containment. Defendants shall repair the torn liner at the heap-leach pad and implement containment measures sufficient to prevent any further unpermitted releases of process solution from the heap-leach pad to surface water or groundwater. The liner repair and containment system shall be designed and constructed in accordance with best available technology and shall be subject to EPA Region 9 review and approval.
(b) Process Solution Releases. Defendants shall address the three (3) documented process-solution releases that occurred on March 17, 2022; August 9, 2022; and January 22, 2023, including characterization of the nature and extent of contamination resulting from those releases, implementation of remedial measures to address impacted soil, sediment, and water resources, and monitoring to confirm the effectiveness of remedial actions.
(c) Cyanide and Mercury Contamination. Defendants shall implement measures to reduce WAD cyanide concentrations in process solution and affected waters to levels at or below the applicable criterion of 0.022 mg/L, and to reduce mercury concentrations to levels at or below the applicable criterion of 0.77 µg/L. Defendants shall also address selenium contamination in pit-lake water to levels protective of aquatic life.
(d) Spent Heap-Leach Ore. Defendants shall properly characterize, manage, and dispose of or treat spent heap-leach ore in accordance with all applicable RCRA Subtitle C requirements, or shall demonstrate to EPA's satisfaction that such ore is not a hazardous waste and may be managed in accordance with Subtitle D requirements.
(e) Avian Mortality Mitigation. In response to the seventeen (17) documented avian mortalities at process-solution ponds during the period 2021–2023, in violation of the MBTA, Defendants shall implement avian mortality mitigation measures, including but not limited to: installation and maintenance of bird deterrent systems (netting, flagging, and hazing devices) at all process-solution ponds; establishment of a wildlife monitoring and reporting protocol; and coordination with the U.S. Fish and Wildlife Service regarding monitoring and adaptive management.
63. The total estimated cost of remedial actions at the Bonanza Creek Site is $63,200,000 in nominal dollars over a twenty (20)-year period. The net present value, calculated at a three percent (3%) discount rate, is approximately $47,100,000.
64. Key Milestone: By June 14, 2026 (approximately one (1) year after the Effective Date), Defendants shall commence liner repair and containment construction at the Bonanza Creek heap-leach pad.
65. EPA Region 9 shall serve as the lead oversight office for the Bonanza Creek Site. Jennifer Whitfield shall serve as the EPA Project Coordinator.
C. Kanawha Bend Chemical Plant
66. Defendants shall design, implement, and complete remedial actions at the Kanawha Bend Chemical Plant as required by this Consent Decree, including the following:
(a) Interim Stabilization Measures. Defendants shall implement interim stabilization measures to address the immediate threats to human health and the environment posed by: (i) sulfuric acid residuals with pH as low as 1.8; (ii) heavy metals contamination, including lead at maximum concentrations of 4,200 mg/kg and arsenic at maximum concentrations of 890 mg/kg in facility soils; and (iii) the presence of DNAPL in the fractured bedrock aquifer underlying the facility. Interim stabilization measures shall include, at a minimum, containment, removal, and/or neutralization of sulfuric acid residuals; stabilization and/or removal of contaminated soils; and containment and monitoring of DNAPL.
(b) Surface Impoundment Closure. Defendants shall properly close the former surface impoundment at the Kanawha Bend Site in accordance with the closure requirements of 40 C.F.R. Part 264, Subpart G, and the applicable provisions of RCRA Permit No. WVD048823915, including removal or decontamination of all hazardous waste and hazardous waste residues, installation of an engineered cover system, and post-closure care and monitoring.
(c) RCRA Corrective Action. Defendants shall perform comprehensive corrective action at the Kanawha Bend Site under RCRA Permit No. WVD048823915, including investigation and remediation of all identified SWMUs and Areas of Concern ("AOCs"), and shall address contamination from the unpermitted treatment of listed hazardous wastes K062 and D002.
67. The total estimated cost of remedial actions at the Kanawha Bend Site is $38,900,000 in nominal dollars over a twenty (20)-year period. The net present value, calculated at a three percent (3%) discount rate, is approximately $29,000,000.
68. Key Milestone: By December 14, 2026 (approximately eighteen (18) months after the Effective Date), Defendants shall complete all interim stabilization measures at the Kanawha Bend Site.
69. EPA Region 3 shall serve as the lead oversight office for the Kanawha Bend Site.
D. Aggregate Remediation Costs
70. The aggregate estimated remediation costs across all four Sites are as follows:
71. As stated in Section VII.B with respect to the Ridgecrest Site, and as applicable to all Sites, the cost estimates set forth herein represent the Parties' best estimates at the time of lodging and do not cap or limit Defendants' remedial obligations, which are defined by the Performance Standards and Completion Criteria set forth in this Decree and its Appendices.
IX. SUPPLEMENTAL ENVIRONMENTAL PROJECTS (SEPs)
A. Overview
72. In addition to the civil penalties, past-cost reimbursement, and remediation obligations set forth herein, Defendants shall fund and implement three (3) Supplemental Environmental Projects ("SEPs") with a combined total value of $12,000,000 (Twelve Million Dollars). Each SEP is designed to provide environmental or public health benefits to communities directly affected by the contamination at the Sites and has a sufficient nexus to the violations alleged in the Complaint.
73. Defendants shall implement each SEP in accordance with the project descriptions, budgets, milestones, and reporting requirements set forth in the applicable Appendices to this Decree. Defendants shall not receive any credits or offsets against the civil penalties required under Section V by reason of their implementation of the SEPs.
B. Flint Creek Watershed Restoration Project (Montana)
74. Budget: $5,500,000.
75. Scope: Defendants shall fund and implement the Flint Creek Watershed Restoration Project, which shall include stream-bank stabilization, riparian replanting with native vegetation, and fish-passage improvements along approximately twelve (12) miles of Flint Creek downstream of the Ridgecrest Site in Granite County, Montana. The project is intended to restore riparian habitat, reduce erosion and sedimentation, and improve aquatic habitat connectivity for native fish species, including westslope cutthroat trout (Oncorhynchus clarkii lewisi), which have been adversely affected by contamination from the Ridgecrest Site.
76. Defendants shall implement the Flint Creek Watershed Restoration Project in coordination with the Montana Department of Fish, Wildlife & Parks and the Granite Conservation District, and in accordance with the detailed project description, budget, milestones, and reporting schedule set forth in Appendix D.
C. Battle Mountain Community Drinking Water Improvement Project (Nevada)
77. Budget: $3,500,000.
78. Scope: Defendants shall fund the upgrade and improvement of the municipal water treatment facility in Battle Mountain, Lander County, Nevada. The project shall include the installation of advanced treatment technologies to remove trace metals and other contaminants from the municipal water supply, infrastructure upgrades to aging treatment equipment, and improvements to the water distribution system. The project is intended to benefit the community of Battle Mountain, which is located in the vicinity of the Bonanza Creek Site and has experienced concerns regarding drinking water quality.
79. Defendants shall implement the Battle Mountain Community Drinking Water Improvement Project in coordination with the Lander County Water District and the Nevada Division of Environmental Protection, and in accordance with the detailed project description, budget, milestones, and reporting schedule set forth in Appendix E.
D. Institute Community Air Quality Monitoring Network (West Virginia)
80. Budget: $3,000,000.
81. Scope: Defendants shall fund the installation and ten (10)-year operation of six (6) ambient air quality monitoring stations in the Institute and South Charleston areas of Kanawha County, West Virginia. The monitoring network shall be equipped with instrumentation capable of measuring ambient concentrations of sulfur dioxide (SO₂), sulfuric acid mist, particulate matter (PM₂.₅ and PM₁₀), volatile organic compounds, and selected hazardous air pollutants. The monitoring stations shall be sited in consultation with the West Virginia Department of Environmental Protection and EPA Region 3, and shall be operated and maintained to provide continuous, publicly accessible air quality data to the affected communities.
82. Defendants shall implement the Institute Community Air Quality Monitoring Network in coordination with the West Virginia Department of Environmental Protection, and in accordance with the detailed project description, budget, milestones, and reporting schedule set forth in Appendix F.
E. Reporting
83. Defendants shall submit semi-annual SEP progress reports to EPA and the relevant state co-plaintiff for each SEP, commencing six (6) months after the Effective Date and continuing until certification of completion for each SEP. Each semi-annual report shall describe the status of implementation, expenditures to date, any deviations from the project schedule, and anticipated milestones for the next reporting period.
84. Upon completion of all milestones for a particular SEP, Defendants shall submit a certification of completion, signed by a responsible corporate officer of TMC, to EPA and the relevant state co-plaintiff. EPA, in consultation with the relevant state co-plaintiff, shall review the certification and shall provide written confirmation of satisfactory completion or identify any deficiencies within sixty (60) Days of receipt.
X. PERFORMANCE STANDARDS AND COMPLETION CRITERIA
85. Defendants shall achieve and sustain site-specific Performance Standards at each of the four Sites, as set forth in Appendices A through C to this Decree. Performance Standards include numerical cleanup standards for soil, groundwater, and surface water; effluent limits for all point-source discharges; and monitoring benchmarks to evaluate the progress and effectiveness of remedial actions.
86. Completion Criteria for each Site shall require sustained achievement of all applicable Performance Standards over defined monitoring periods, as specified in the relevant Appendix. The monitoring periods are designed to provide a high degree of confidence that remedial actions have achieved their intended objectives and that environmental conditions will remain protective of human health and the environment in the absence of continued active remediation.
87. EPA, in consultation with the relevant state agency, shall certify completion of remedial obligations at each Site when all Performance Standards and Completion Criteria for that Site have been met. No Site-specific obligation shall be deemed fulfilled absent written certification by EPA.
88. No termination of Defendants' obligations at any Site shall occur sooner than five (5) years after the completion of all remedial construction activities at that Site, regardless of whether Performance Standards have been achieved prior to the expiration of that five-year period. This five-year minimum period is intended to ensure an adequate post-construction monitoring period to confirm the long-term effectiveness and permanence of the remedy.
89. In the event that Defendants fail to achieve Performance Standards within the timeframes specified in the applicable Appendix, EPA may require Defendants to implement additional or modified remedial measures, at Defendants' expense, as necessary to achieve Performance Standards. Any dispute regarding the adequacy of remedial measures shall be resolved in accordance with the dispute-resolution procedures set forth in Section XV.
XI. FINANCIAL ASSURANCE
A. Total Financial Assurance Required
90. Defendants shall establish and maintain financial assurance in the total amount of $245,000,000 (Two Hundred Forty-Five Million Dollars) to secure the performance of Defendants' remediation obligations under this Consent Decree. The financial assurance shall be composed of a surety bond and a remediation trust fund, as described below.
B. Surety Bond
91. Defendants shall obtain and maintain a surety bond in the face amount of $165,000,000 (One Hundred Sixty-Five Million Dollars), issued by Ironbark Surety of America, Inc., located at 599 Lexington Avenue, 26th Floor, New York, New York 10022 ("Ironbark Surety"). The surety bond shall be designated as Bond No. ISA-ENV-2025-08934 and shall name EPA as the obligee. Thomas Rennick shall serve as Account Executive for the bond.
92. The surety bond shall secure the performance of Defendants' remediation obligations under this Decree, including but not limited to all obligations relating to the design, construction, operation, maintenance, and monitoring of remedial systems and corrective actions at all four Sites. The annual premium for the surety bond shall be 1.85% of the face value, or approximately $3,052,500 per year, which shall be paid by Defendants directly to Ironbark Surety.
93. Ironbark Surety shall be licensed to do business in the States of Montana, Nevada, and West Virginia, and shall be listed on the Department of the Treasury's Listing of Approved Sureties (Department Circular 570). The surety bond shall be in a form acceptable to EPA and shall provide that the bond may not be canceled, terminated, or allowed to lapse without at least one hundred twenty (120) Days' prior written notice to EPA and the Court.
C. Remediation Trust Fund