internal-redline-comment-compilation.docx

1039-00003 · Torchlight Mining Corp · Consent Decree/Drafting & Negotiation

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PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT This memorandum is protected by the attorney-client privilege and constitutes attorney work product prepared in anticipation of litigation. This document and its contents should not be disclosed to any person outside of the attorney-client relationship without the express written consent of Calderwood & Harkness LLP and Torchlight Mining Corp.

CALDERWOOD & HARKNESS LLP

MEMORANDUM

November 25, 2024

To: Harrison Wexford, Responsible Partner Beatrice Holloway, Billing Partner

From: Elliot Nguyen, Lead Associate Grace Nakamura, Working Associate

Re: Internal Redline and Comment Compilation — DOJ First Draft Consent Decree (dated November 8, 2024)

Matter: Torchlight Mining Corp. — Multi-Site EPA Compliance & Consent Decree Negotiation

Matter No.: 1039-00003

Case: United States of America and State of Montana v. Torchlight Mining Corp. et al., Civil Action No. 9:24-cv-00087-DWM (U.S.D.C., D. Montana, Missoula Division)

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I. Purpose and Summary

This memorandum consolidates all comments received on the United States Department of Justice's ("DOJ") first draft consent decree, which was circulated by DOJ trial attorney Philip Orenstein to Calderwood & Harkness LLP on November 8, 2024 (the "DOJ First Draft" or the "DOJ Draft"). The comments compiled herein were received from the following sources: (a) Torchlight Mining Corp. ("TMC") management, including its General Counsel and its Vice President for Environmental Health & Safety; (b) TMC's environmental remediation consultant, Pinnacle Creek Environmental, LLC ("Pinnacle Creek"); (c) local counsel in each of the three affected jurisdictions (Montana, Nevada, and West Virginia); and (d) the Calderwood & Harkness LLP engagement team responsible for leading the consent decree negotiation on TMC's behalf.

The compilation is organized on a section-by-section basis, mirroring the structure of the DOJ Draft, and distills the input from all sources into a unified set of proposed revisions. These proposed revisions will be incorporated into TMC's comprehensive redline of the DOJ Draft, which is targeted for submission to DOJ and the United States Environmental Protection Agency ("EPA") on or about December 16, 2024. The redline will be accompanied by a transmittal letter summarizing the principal areas of proposed change and the rationale supporting TMC's positions.

Comments were received from the following individuals, who are attributed by initials throughout this memorandum:

• MSP — Miriam Soo-Hwan Park, General Counsel, Torchlight Mining Corp.

• GL — Gareth Linford, Vice President, Environmental Health & Safety, Torchlight Mining Corp.

• AB — Dr. Astrid Bergmann, P.E., Senior Principal, Pinnacle Creek Environmental, LLC

• RD — Russell Dane, Lead Partner, Holcroft, Dane & Weiss LLP ("HDW"), Montana local counsel

• DQ — Denise Quartaro, Lead Partner, sagebrush Law Group, PLLC ("Sagebrush"), Nevada local counsel

• NT — Nathan Tully, Lead Partner, Baxter, Tully & Crane PLLC ("BTC"), West Virginia local counsel

• EN/GN — Elliot Nguyen and Grace Nakamura, Calderwood & Harkness LLP

This memorandum should be read in conjunction with the C&H Annotated Review of the DOJ First Draft (dated November 12, 2024) (the "Annotated Review"), which serves as the baseline analytical document upon which the comments compiled herein build. The Annotated Review provided a preliminary, section-by-section assessment of the DOJ Draft from a legal and strategic perspective and identified the principal areas of concern that were then circulated to the client team and local counsel for their independent review and comment.

Readers should also note that certain comments overlap with issues previously flagged in two earlier work product documents: the Preliminary Case Assessment Memorandum (dated November 4, 2024) and the Regulatory Exposure Analysis (dated November 8, 2024). Where a comment echoes or builds upon analysis from those documents, we have noted the connection but have not repeated the prior analysis in full. Those documents remain part of the active working file for this matter and should be referenced as needed.

II. Overview of Comment Sources and Methodology

A. TMC Management Comments

Miriam Soo-Hwan Park, General Counsel of Torchlight Mining Corp., submitted written comments via email on November 18, 2024. Ms. Park's twelve-page memorandum focused primarily on corporate governance provisions within the DOJ Draft, including the identification of authorized signatories for decree-related filings and certifications, the definition of subsidiary and affiliated entities that fall within the scope of the decree's obligations, indemnification provisions as between TMC parent and its subsidiaries, and the mechanics of the financial assurance requirements. Ms. Park also addressed certain provisions bearing on TMC's insurance recovery posture, including language that could be construed as admissions adverse to TMC's interests in its ongoing coverage dispute with Meridian Environmental Insurance Company.

Gareth Linford, Vice President of Environmental Health & Safety at TMC, submitted written comments via email on November 20, 2024. Mr. Linford's eighteen-page memorandum focused on the technical remediation standards specified in the DOJ Draft, sampling and monitoring protocols, performance standards and their achievability, the feasibility of the remediation schedules proposed by the government, and the operational impact of the DOJ Draft's requirements on the Bonanza Creek gold mine (an active open-pit mining operation) and the Gallatin Chemical Works (an active specialty chemical manufacturing facility). Mr. Linford's comments reflect significant input from TMC's in-house environmental engineering staff and from the operational management teams at each of the four sites.

In addition, TMC's Chief Executive Officer, Douglas K. Prennell, and Chief Financial Officer, Carolyn Bracebridge, provided oral comments conveyed through Ms. Park. These comments addressed TMC's financial exposure caps, the timing of civil penalty installment payments, and the interaction between the consent decree's financial obligations and the Harborstone National Bank, N.A. credit facility. The Harborstone facility is a C$750.0 million syndicated revolving credit facility with a maturity date of March 15, 2027, and contains environmental liability covenants that constrain TMC's ability to absorb unanticipated environmental expenditures. The interplay between the consent decree obligations and the RCF covenants is discussed further in Section IV.B below.

B. Pinnacle Creek Environmental, LLC Comments

Dr. Astrid Bergmann, P.E., Senior Principal at Pinnacle Creek Environmental, LLC, submitted a thirty-four-page technical comment memorandum on November 19, 2024. Pinnacle Creek serves as TMC's primary environmental remediation consultant for all four sites encompassed by the consent decree and has been engaged on the Ridgecrest and Bonanza Creek sites since 2019 and on the Gallatin and Kanawha Bend sites since 2021. Dr. Bergmann's extensive memorandum covers all four sites and provides detailed technical analysis, including the following principal areas of focus:

Ridgecrest Copper-Molybdenum Mine: Dr. Bergmann's analysis identifies a significant discrepancy between TMC's remediation cost estimate ($187.5 million over thirty years) and EPA's estimate ($224.0 million over the same period). Dr. Bergmann attributes the discrepancy primarily to EPA's assumption that active water treatment will be required in perpetuity at the tailings impoundment and related acid mine drainage systems, whereas Pinnacle Creek's assessment demonstrates that a transition to passive treatment (constructed wetlands and biochemical reactors) is technically feasible beginning at approximately Year 15 of the remediation program. Dr. Bergmann's memorandum includes detailed cost buildup tables for both the TMC and EPA scenarios and recommends that TMC negotiate toward a middle ground or, alternatively, seek adoption of TMC's technology pathway with an agreed cost ceiling. Dr. Bergmann also addresses the feasibility of the DOJ Draft's proposed thirty-year remediation timeline and the selection of acid mine drainage treatment technologies.

Gallatin Chemical Works: Dr. Bergmann addresses the carbon disulfide (CS₂) groundwater remediation approach, including the identification and characterization of the CS₂ plume, which shows maximum concentrations of 890 µg/L against a maximum contaminant level ("MCL") of 10 µg/L. The memorandum also addresses the identification and prioritization of three solid waste management units ("SWMUs") and the proposed sequencing of corrective action across those units.

Bonanza Creek Gold Mine: Dr. Bergmann's analysis focuses on the heap-leach liner repair engineering standards, including a detailed comparison of targeted repair (addressing the 12 acres of documented liner damage) versus the DOJ Draft's requirement for complete relining of the entire 80-acre heap-leach pad. The memorandum also addresses cyanide weak-acid-dissociable ("WAD") discharge limits and mercury treatment technology selection, including a critique of the technical assumptions underlying EPA's technical expert's (Dr. Patricia Voss of Cascade Geosciences, Inc.) cost estimates for mercury treatment.

Kanawha Bend Chemical Plant: Dr. Bergmann addresses the technically complex challenge of dense non-aqueous phase liquid ("DNAPL") remediation in fractured bedrock, including the limitations of conventional pump-and-treat approaches in such geological settings. The memorandum discusses the appropriate scope of interim stabilization measures and the relationship between surface stabilization (former surface impoundment closure and soil stabilization) and subsurface DNAPL containment and remediation. Dr. Bergmann also addresses sulfuric acid soil treatment standards for the heavily contaminated soils (pH as low as 1.8) present at the site.

C. Local Counsel Comments

Comments were received from each of the three local counsel firms retained by TMC for the jurisdictions in which the four sites are located.

Holcroft, Dane & Weiss LLP (Russell Dane). Mr. Dane submitted an eight-page comment memorandum on November 21, 2024. His comments address Montana-specific issues, including coordination between the consent decree and Montana Pollutant Discharge Elimination System ("MPDES") permits applicable to the Ridgecrest and Gallatin sites; the joinder language for the Montana Department of Environmental Quality ("MT DEQ") as a co-plaintiff; the interaction between the consent decree and TMC's hard rock mining reclamation permits at Ridgecrest; and the integration of the existing Ridgecrest Administrative Order on Consent ("AOC") (Docket No. CERCLA-08-2022-0039) with the consent decree. Mr. Dane flagged a significant risk of dual obligations if the AOC is not expressly superseded by the consent decree.

sagebrush Law Group, PLLC (Denise Quartaro). Ms. Quartaro submitted a six-page comment memorandum on November 21, 2024. Her comments address Nevada-specific issues, including coordination with Nevada water pollution control permits, the joinder language for the Nevada Division of Environmental Protection ("NV DEP") as a co-plaintiff, the preservation of Bonanza Creek Mining, LLC's appropriative water rights under Nevada law, and the need for carve-outs to protect active mining operations at Bonanza Creek from unreasonable interference by remediation requirements.

Baxter, Tully & Crane PLLC (Nathan Tully). Mr. Tully submitted a seven-page comment memorandum on November 22, 2024. His comments address West Virginia-specific issues, including coordination between the consent decree and the National Pollutant Discharge Elimination System ("NPDES") and Resource Conservation and Recovery Act ("RCRA") state-authorized permits applicable to the Kanawha Bend site; the joinder language for the West Virginia Department of Environmental Protection ("WV DEP") as a co-plaintiff; the integration of RCRA Permit No. WVD048823915 with the consent decree; and the hierarchy between a potential state consent order and the federal consent decree. Mr. Tully reported that WV DEP's Loretta May Hatcher has indicated the state may pursue a separate state consent order for the former surface impoundment at Kanawha Bend.

D. C&H Team Comments

The Calderwood & Harkness LLP engagement team's comments, attributed to EN/GN throughout this memorandum, build upon and supplement the Annotated Review of November 12, 2024. These comments incorporate additional analysis of relevant case law, precedent consent decrees in analogous multi-site environmental enforcement actions, and negotiation strategy considerations. Where the EN/GN comments align with or reinforce comments from other sources, we have noted the alignment. Where the EN/GN comments diverge from or supplement other commentators' views, we have identified the basis for the divergence and offered our recommended position.

Throughout this memorandum, our recommendations reflect a synthesis of all comment sources and are designed to produce a redline that advances TMC's interests while remaining within the bounds of credible and good-faith negotiation with the government. We have classified all proposed revisions into a three-tier priority matrix (set forth in Section V below) to guide the engagement team's decision-making during the redline preparation process and the subsequent negotiation sessions with DOJ and EPA.

III. Section-by-Section Comment Compilation

A. Section I — Jurisdiction and Venue

DOJ Draft Position. The DOJ Draft asserts jurisdiction under Section 309(b) of the Clean Water Act ("CWA"), 33 U.S.C. § 1319(b); Section 3008(a) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6928(a); and Sections 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9606, 9607, in the United States District Court for the District of Montana, Missoula Division. The DOJ Draft recites that the Honorable Donald W. Molloy is the presiding judge and that the defendants consent to the jurisdiction of the Court for purposes of the consent decree.

MSP Comment. Ms. Park requests confirmation that TMC's consent to the jurisdiction of the Court does not constitute a waiver of TMC's sovereign immunity arguments under the Canada Business Corporations Act ("CBCA") incorporation for any claims falling outside the four sites specifically enumerated in the consent decree. As a Canadian-incorporated parent entity, TMC has historically maintained that its amenability to the personal jurisdiction of U.S. courts is limited to matters in which it has consented or in which specific jurisdiction is established. Ms. Park requests the insertion of express language limiting the scope of jurisdictional consent to the enforcement of the consent decree itself and the obligations contained therein, and does not extend by implication to any other present or future claims, proceedings, or enforcement actions.

EN/GN Comment. We concur with Ms. Park's concern and recommend adding language specifying that TMC's consent to jurisdiction is limited to enforcement of the consent decree and does not extend to any future claims or proceedings not arising directly under the terms of the decree. This type of limiting language is standard in precedent consent decrees involving foreign-incorporated defendants, including United States v. Consolidated Copper Holdings, Ltd., No. 4:18-cv-02156 (D. Ariz. 2020), and United States v. Cerro Grande Resources, S.A. de C.V., No. 1:15-cv-00974 (D.N.M. 2017). The limiting clause should be drafted with sufficient specificity to prevent the government from arguing that TMC's consent to jurisdiction under the decree constitutes a general submission to the jurisdiction of the Court for all environmental enforcement purposes.

RD Comment. Mr. Dane requests confirmation that the consent decree does not disturb the concurrent jurisdiction of Montana state courts over state permit matters, including MPDES permit enforcement, hard rock mining reclamation permit enforcement, and any separate administrative or judicial proceedings brought by MT DEQ under Montana state law. Mr. Dane notes that the jurisdictional provisions of the DOJ Draft do not contain a preemption clause, but the absence of an express savings clause for state court jurisdiction could create ambiguity if a conflict arises between the consent decree's requirements and a state regulatory directive. He recommends inserting a savings clause preserving the concurrent jurisdiction of state courts over state law matters.

Recommendation. We recommend inserting a limiting clause on the scope of TMC's jurisdictional consent, specifying that consent is limited to enforcement of the consent decree and does not constitute a general submission to the jurisdiction of the Court. We further recommend adding a savings clause for state permit matters, confirming that the consent decree does not preempt the concurrent jurisdiction of state courts or state administrative agencies over matters arising under state law.

B. Section II — Parties and Definitions

DOJ Draft Position. The DOJ Draft names five Torchlight entities as defendants:

1. Torchlight Mining Corp. (incorporated under the CBCA, Canada);

2. Torchlight Mining (U.S.) Inc. (incorporated in Delaware, EIN 83-2047156);

3. Torchlight Specialty Chemicals, Inc. (incorporated in Delaware, EIN 47-3819204);

4. Ridgecrest Mine Holdings, LLC (organized in Montana, Montana Secretary of State ID No. E1042738); and

5. Bonanza Creek Mining, LLC (organized in Nevada, Nevada Secretary of State Entity No. E0518294731).

The DOJ Draft identifies the following co-plaintiffs: the United States of America (acting through EPA and DOJ), the State of Montana (acting through MT DEQ and the Montana Attorney General's Office), the State of Nevada (acting through NV DEP and the Nevada Attorney General's Office), and the State of West Virginia (acting through WV DEP and the West Virginia Attorney General's Office).

The definitions section of the DOJ Draft includes, among others, definitions of "Defendants," "Settling Defendants," "Site" (with sub-definitions for each of the four sites), "Waste," "Hazardous Waste," "Hazardous Substance," "Work," and "Remedial Action."

MSP Comment. Ms. Park requests verification that the definitions of "Defendants" and "Settling Defendants" are coterminous — i.e., that every entity defined as a "Defendant" is also a "Settling Defendant" and vice versa — and that neither definition inadvertently captures future subsidiaries, affiliates, or entities that may be organized or acquired by TMC or its subsidiaries after the date of the decree. Ms. Park recommends the addition of an "as of the date of lodging" qualifier to both definitions, thereby fixing the universe of entities subject to the decree as of a specific date and preventing the government from arguing that newly formed or acquired entities are automatically subject to the decree's obligations. This concern is particularly acute given TMC's corporate development activities, which may include the formation of new special-purpose entities or the acquisition of additional mineral properties in the ordinary course of business.

GL Comment. Mr. Linford notes that the definition of "Site" for each of the four facilities in the DOJ Draft uses imprecise language, including references to the site "and vicinity" and "surrounding areas," without specifying precise legal descriptions or acreage figures. Mr. Linford recommends that the definition of "Site" for each facility be revised to reference the precise legal descriptions and surveyed acreage, as follows:

• Ridgecrest: Approximately 3,200 acres comprising the mine footprint (open pit, tailings impoundment, waste rock storage areas, process facilities, and haul roads), within a total property boundary of approximately 8,700 acres owned or controlled by Ridgecrest Mine Holdings, LLC;

• Gallatin: Approximately 145 acres comprising the chemical works facility, including all process areas, SWMUs, and the wastewater treatment system;

• Bonanza Creek: Approximately 5,600 acres comprising the mine footprint (open pit, heap-leach pads, solution ponds, process facilities, and haul roads), within a total property boundary of approximately 12,400 acres owned or controlled by Bonanza Creek Mining, LLC; and

• Kanawha Bend: Approximately 78 acres comprising the chemical plant facility, including all process areas, the former surface impoundment, and associated waste management units.

Mr. Linford emphasizes that the use of vague "vicinity" language could expand TMC's remediation obligations beyond the physical boundaries of the sites themselves, potentially encompassing areas that are not under TMC's ownership or control and where TMC may not be the responsible party for existing contamination.

AB Comment. Dr. Bergmann notes that the DOJ Draft's definitions of "Waste" and "Hazardous Waste" do not precisely track the statutory definitions under RCRA § 1004(5) (42 U.S.C. § 6903(5)) and RCRA § 1004(27) (42 U.S.C. § 6903(27)). The DOJ Draft employs an expanded definition that could capture non-hazardous mining residuals at the Ridgecrest and Bonanza Creek sites, including waste rock, overburden, and tailings that qualify for the Bevill Amendment exclusion (RCRA § 3001(b)(3)(A)(ii), 42 U.S.C. § 6921(b)(3)(A)(ii)). Dr. Bergmann recommends that the definitions be revised to track the statutory language precisely and to incorporate the applicable regulatory exclusions, to avoid inadvertently subjecting non-hazardous mining residuals to the more stringent corrective action standards applicable to hazardous wastes.

DQ Comment. Ms. Quartaro notes that the DOJ Draft's definitions do not adequately distinguish between active mining operations (Bonanza Creek) and closed or reclamation-stage sites (Ridgecrest). The legal obligations applicable to these two categories of sites differ materially under both federal and state law. At Bonanza Creek, TMC holds active mining permits and water appropriation rights that must be preserved, and the remediation obligations must be designed to accommodate ongoing mining operations. At Ridgecrest, mining operations ceased in 2019 and the site is in a reclamation phase, with different regulatory requirements and different operational constraints. Ms. Quartaro recommends that the definitions section include an express distinction between "Active Sites" and "Non-Active Sites" (or similar terminology) to ensure that the obligations imposed under the consent decree are properly calibrated to the operational status of each facility.

NT Comment. Mr. Tully confirms that the Kanawha Bend Chemical Plant is operated by Torchlight Specialty Chemicals, Inc. ("TSC"), a Delaware corporation (EIN 47-3819204), and that TSC is the holder of RCRA Permit No. WVD048823915 issued by WV DEP. Mr. Tully requests confirmation that the DOJ Draft properly identifies TSC — rather than TMC parent or another subsidiary — as the entity bearing the site-specific obligations for Kanawha Bend. Misidentification of the responsible entity could create confusion regarding permit compliance responsibilities and could complicate WV DEP's administration of the state-authorized RCRA program.

Recommendation. We recommend the following revisions to Section II of the DOJ Draft:

(a) Revise the definitions of "Defendants" and "Settling Defendants" to include an "as of the date of lodging" qualifier and to expressly exclude future subsidiaries, affiliates, or entities not listed;

(b) Revise the definition of "Site" for each facility to incorporate precise legal descriptions and acreage figures, eliminating vague "vicinity" language;

(c) Revise the definitions of "Waste" and "Hazardous Waste" to track the statutory definitions under RCRA §§ 1004(5) and 1004(27), incorporating applicable regulatory exclusions including the Bevill Amendment exclusion;

(d) Add definitions distinguishing between "Active Sites" (Gallatin, Bonanza Creek, and Kanawha Bend) and "Non-Active Sites" (Ridgecrest) or equivalent terminology; and

(e) Ensure that entity-specific obligations at each site are assigned to the correct subsidiary entity (i.e., TSC for Kanawha Bend, Ridgecrest Mine Holdings, LLC for Ridgecrest, Bonanza Creek Mining, LLC for Bonanza Creek).

C. Section III — Applicability

DOJ Draft Position. The DOJ Draft provides that the consent decree is binding upon the defendants, their successors, assigns, officers, directors, employees, agents, and contractors. The DOJ Draft further provides that no transfer of operations or ownership of any facility, in whole or in part, relieves the defendants of their obligations under the decree absent prior written consent from EPA.

MSP Comment. Ms. Park requests that the advance notice provision for any proposed transfer of operations or ownership be extended from the thirty-day period specified in the DOJ Draft to a sixty-day period. The thirty-day period is insufficient to allow for the preparation and submission of the requisite documentation demonstrating the proposed transferee's technical and financial capability to assume the decree's obligations. Ms. Park further requests the addition of a deemed-consent mechanism providing that if EPA does not object to a proposed transfer within sixty days of receiving notice, EPA's consent to the transfer shall be deemed granted. The deemed-consent mechanism is necessary to prevent EPA from indefinitely delaying a proposed transfer through administrative inaction, which could frustrate legitimate corporate transactions. Ms. Park notes that TMC's Board of Directors has, as a matter of long-term strategic planning, considered potential asset dispositions that may include one or more of the sites subject to the decree, and the applicability provisions must be structured to permit such transactions to proceed on a commercially reasonable timetable.

EN/GN Comment. We concur with Ms. Park's request for a sixty-day notice period and a deemed-consent mechanism. We further recommend the addition of a release-upon-transfer provision specifying that the original defendant is released from further obligation under the decree upon EPA's written approval (or deemed approval) of the transferee's assumption of all decree obligations and demonstration of adequate financial assurance. This provision is standard in precedent CERCLA consent decrees, including United States v. Tarrant Holdings, No. CV-89-039 (D. Mont. 1998), and United States v. Newmont USA Ltd., No. 3:05-cv-00580 (D. Nev. 2012). Without a release-upon-transfer provision, TMC could remain indefinitely liable under the decree even after divesting itself of the relevant site and transferring all operational and financial responsibility to a capable successor.

Recommendation. We recommend extending the advance notice period from thirty days to sixty days, adding a deemed-consent mechanism if EPA does not object within sixty days, and adding a release-upon-transfer provision conditioned upon EPA's approval of the successor's assumption of obligations and financial assurance.

D. Section IV — Effective Date and General Provisions

DOJ Draft Position. The DOJ Draft defines the "Effective Date" as thirty days after entry of the consent decree by the Court. Based on the parties' current target entry date of May 15, 2025, the Effective Date would be June 14, 2025.

GL Comment. Mr. Linford emphasizes that all remediation milestones set forth in the decree should be measured from the Effective Date, not from the date of lodging with the Court. The DOJ Draft is internally inconsistent on this point: certain milestone provisions reference the "Effective Date," while others reference the "date of entry" or the "date of lodging." Given that the public comment period and any judicial review of the decree will occur between the date of lodging and the date of entry, the period between lodging and entry could be several months, and the use of inconsistent dating conventions could materially shorten the time available to TMC to comply with early milestones. Mr. Linford requests that the engagement team conduct a comprehensive review of the DOJ Draft to confirm that all schedule provisions are tied consistently to the Effective Date.

EN/GN Comment. We concur with Mr. Linford's comment and will conduct a comprehensive dating-convention review as part of the redline preparation process. We further recommend inserting a definition of "Business Day" to avoid ambiguity in the calculation of notice periods, cure periods, and other deadlines specified in the decree. The DOJ Draft does not define "Business Day" and is ambiguous as to whether deadline calculations include weekends, federal holidays, and state holidays. We recommend defining "Business Day" as any day other than a Saturday, Sunday, or federal legal holiday, and specifying which deadlines in the decree are calculated in "Business Days" versus "Calendar Days."

Recommendation. We recommend confirming that all milestone provisions are tied consistently to the Effective Date (June 14, 2025, assuming entry on May 15, 2025) and inserting a definition of "Business Day" with a clear specification of which deadlines are calculated in Business Days versus Calendar Days.

E. Section V — Civil Penalty

DOJ Draft Position. The DOJ Draft imposes a total civil penalty of $31.5 million, allocated among the four sites as follows:

The DOJ Draft provides that the total civil penalty is payable in four equal quarterly installments of $7,875,000 each, commencing thirty days after the Effective Date. Assuming an Effective Date of June 14, 2025, the first installment would be due on July 14, 2025, with subsequent installments due on October 14, 2025, January 14, 2026, and April 14, 2026.

MSP/CB Comment (via MSP). CFO Carolyn Bracebridge requests that the payment schedule be restructured from four quarterly installments to a schedule consisting of an initial payment of 25% ($7,875,000) due thirty days after the Effective Date, followed by three annual installments of $7,875,000 each at twelve, twenty-four, and thirty-six months after entry of the decree. This restructuring would reduce the near-term cash impact on TMC's operations and would allow TMC to fund the penalty payments from operating cash flow rather than drawing on the Harborstone revolving credit facility. Under the DOJ Draft's quarterly installment schedule, TMC would be required to pay the full $31.5 million within approximately nine months of the Effective Date, concentrating the cash outflow during a period when TMC will simultaneously be funding substantial remediation mobilization costs, past-cost reimbursement obligations, and the initial financial assurance deposit. Under the proposed annual installment schedule, the final payment would not be due until approximately thirty-six months after entry (approximately May 2028), providing TMC with significantly greater financial flexibility.

EN/GN Comment. We note for the record that civil penalties paid to the government are non-deductible for federal income tax purposes under Internal Revenue Code § 162(f), as amended by the Tax Cuts and Jobs Act of 2017. The engagement team should ensure that the financial modeling prepared by Northspire Capital Markets, Inc. (Vivian Okafor, Managing Director) reflects the after-tax cash flow impact of the $31.5 million civil penalty — i.e., the penalty must be funded from after-tax dollars, effectively increasing its economic cost to TMC by a factor of approximately 1/(1 – marginal tax rate). This consideration reinforces the importance of negotiating a payment schedule that minimizes near-term cash flow pressure.

GL Comment. Mr. Linford has no technical comment on the penalty amounts or allocation.

AB Comment. Dr. Bergmann has no comment on the civil penalty provisions.

RD Comment. Mr. Dane notes that the allocation of $14.2 million in civil penalties to the Ridgecrest site and $5.8 million to the Gallatin site raises a question regarding Montana's share of or interest in the penalty allocation. Mr. Dane reports that Annika Hedstrom of the Montana Attorney General's Office has indicated that MT DEQ may seek separate state-level penalties if the federal penalty allocated to the Montana sites is deemed insufficient to deter future non-compliance and to compensate the state for its enforcement costs. Mr. Dane recommends that the engagement team coordinate with Ms. Hedstrom to determine whether the state will accept the federal penalty allocation as satisfying any state penalty claims, or whether the state intends to pursue additional penalties under Montana law.

Recommendation. We recommend proposing an annual installment schedule (25% at thirty days after the Effective Date, then three annual installments at twelve, twenty-four, and thirty-six months after entry) in lieu of the DOJ Draft's quarterly installment schedule. We further recommend flagging the state penalty coordination issue with Annika Hedstrom of the Montana Attorney General's Office and with the corresponding state contacts in Nevada and West Virginia, to determine the extent to which the federal penalty allocation satisfies or overlaps with potential state penalty claims.

F. Section VI — Remedial Action Requirements

F.1. Ridgecrest Copper-Molybdenum Mine (Ridgecrest Site)

DOJ Draft Position. The DOJ Draft requires submission of a Remedial Action Work Plan within 180 days of the Effective Date (i.e., by December 14, 2025). Remedy construction is to commence within twenty-four months of the Effective Date (i.e., by June 14, 2027). The DOJ Draft specifies a total remediation obligation of $224.0 million (based on EPA's cost estimate) over a thirty-year period, ending June 14, 2055.

The contaminant conditions at the Ridgecrest site are among the most severe of the four sites addressed by the decree. The DOJ Draft references the following principal contaminant concentrations and applicable standards:

The Ridgecrest site includes a 425-acre tailings impoundment with documented seepage to Flint Creek, a tributary of the Clark Fork River. The magnitude of the copper exceedance (approximately 5,400 times the chronic aquatic life standard) underscores the significance of the remediation challenge and the government's interest in securing robust remediation commitments.

AB Comment (Critical). Dr. Bergmann's analysis identifies a significant discrepancy between EPA's remediation cost estimate of $224.0 million and Pinnacle Creek's detailed estimate of $187.5 million. Both estimates cover a thirty-year remediation period; at a 3% discount rate, the net present values are approximately $152.3 million (EPA) and $127.4 million (Pinnacle Creek), respectively. Dr. Bergmann attributes the discrepancy primarily to a fundamental difference in technology pathway assumptions. EPA's cost estimate assumes active water treatment in perpetuity — i.e., the operation of a lime-and-soda-ash treatment plant for the full thirty-year period and beyond, with attendant capital replacement, operating, and maintenance costs. Pinnacle Creek's estimate assumes a transition from active treatment to passive treatment (constructed wetlands and sulfate-reducing biochemical reactors) beginning at approximately Year 15 of the remediation program, which significantly reduces long-term operating costs.

Dr. Bergmann notes that the passive treatment transition is technically feasible based on the site's hydrogeology, contaminant loading rates, and the demonstrated performance of analogous passive treatment systems at comparable acid mine drainage sites, including the Leviathan Mine (Alpine County, California) and the Cobalt Ridge Services Inc. Mine (Shasta County, California). Dr. Bergmann recommends that TMC negotiate the remediation cost obligation down from $224.0 million toward TMC's estimate of $187.5 million, or alternatively seek adoption of TMC's technology pathway with an agreed cost ceiling. If a negotiated midpoint is required, Dr. Bergmann suggests that approximately $198.6 million represents a reasonable compromise position.

GL Comment. Mr. Linford notes that the DOJ Draft's 180-day deadline for submission of the Remedial Action Work Plan is aggressive given the complexity of the remedial investigation/feasibility study ("RI/FS") that must inform the Work Plan, and the need for additional baseline groundwater data from the existing monitoring well network. The current monitoring well network comprises forty-two wells, of which eight were installed in 2023 and do not yet have a full four-season dataset. Mr. Linford requests that the Work Plan submission deadline be extended to 270 days after the Effective Date (i.e., to approximately March 14, 2026), which would allow for the collection and analysis of at least two additional quarterly groundwater sampling rounds before the Work Plan is finalized.

RD Comment. Mr. Dane raises a critical issue regarding the integration of the existing Ridgecrest AOC (Docket No. CERCLA-08-2022-0039, executed September 15, 2022) with the consent decree. The DOJ Draft does not clearly supersede or terminate the AOC, creating a risk that TMC could be subject to dual obligations — i.e., the ongoing requirements of the AOC and the new requirements of the consent decree — covering overlapping or potentially conflicting remediation activities at the same site. Mr. Dane recommends the insertion of an express supersession clause providing that the consent decree supersedes and replaces the AOC in its entirety upon the Effective Date, and that all obligations arising under the AOC are merged into the consent decree.

Mr. Dane further notes that the DOJ Draft includes EPA past-cost recovery of $14.3 million for removal actions conducted at Ridgecrest between January 2021 and May 2023. This past-cost figure is addressed in detail in Section I (Section IX — EPA Past-Cost Reimbursement) below.

EN/GN Comment. We recommend that TMC negotiate the remediation cost obligation down from EPA's $224.0 million estimate toward TMC's estimate of $187.5 million, targeting approximately $198.6 million as a midpoint compromise. The $198.6 million figure corresponds to a net present value of approximately $134.9 million at a 3% discount rate, which is within the range of remediation costs at comparable mining sites of similar scale and complexity.

We further recommend the insertion of adaptive management provisions allowing remedy modification based on performance data collected during the remediation program, without requiring a formal decree modification proceeding. Under the current DOJ Draft, any modification to the approved remedy would require a formal motion to modify the consent decree under Federal Rule of Civil Procedure 60(b), which is procedurally burdensome and could delay the implementation of cost-effective remedy improvements. An adaptive management provision would allow the parties to agree on remedy modifications (such as the transition from active to passive water treatment) through an administrative process, subject to EPA approval, without court intervention.

Recommendation. We recommend the following revisions to Section VI as it pertains to Ridgecrest:

(a) Propose $198.6 million as the negotiated remediation cost obligation, representing a midpoint between EPA's $224.0 million estimate and TMC's $187.5 million estimate;

(b) Extend the Remedial Action Work Plan submission deadline from 180 days to 270 days after the Effective Date;

(c) Insert an express AOC supersession clause providing that the consent decree supersedes Docket No. CERCLA-08-2022-0039 in its entirety upon the Effective Date; and

(d) Add an adaptive management provision authorizing remedy modifications based on performance data through an administrative process without requiring formal decree modification.

F.2. Gallatin Chemical Works (Gallatin Site)

DOJ Draft Position. The DOJ Draft requires submission of a Corrective Measures Study ("CMS") within twelve months of the Effective Date (i.e., by June 14, 2026). The corrective action at Gallatin addresses three SWMUs identified under RCRA Permit No. MTD098712456. The DOJ Draft estimates remediation costs at $42.8 million over a fifteen-year period, with a net present value at 3% of approximately $34.1 million.

AB Comment. Dr. Bergmann notes that the DOJ Draft does not distinguish between the three SWMUs in terms of priority or sequencing for corrective action. Dr. Bergmann recommends that SWMU prioritization be based on a risk-based assessment, with the CS₂ groundwater plume designated as the first priority for corrective action. The CS₂ plume exhibits maximum concentrations of 890 µg/L, which is approximately 89 times the EPA MCL of 10 µg/L. The remaining SWMUs — the xanthate decomposition product area and the VOC soil contamination area (toluene and xylene) — should be addressed in a phased sequence, with the xanthate area as the second priority and the VOC area as the third priority. This risk-based sequencing approach is consistent with EPA's own corrective action guidance (EPA OSWER Directive 9502.00-6D) and would allow TMC to concentrate its initial resources on the contaminant posing the greatest risk to human health and the environment.

GL Comment. Mr. Linford emphasizes that the Gallatin Chemical Works is an active specialty chemical manufacturing facility and that the remediation work plans must account for ongoing operations. Mr. Linford notes that the facility operates on a continuous basis and that unplanned shutdowns or production curtailments resulting from remediation activities would have significant economic consequences, including potential breach of supply agreements with TMC's downstream customers. Mr. Linford requests the addition of an operational accommodation provision permitting schedule adjustments to remediation milestones during planned facility turnarounds, which typically occur for two to three weeks during the spring and fall.

Mr. Linford further notes that the Gallatin facility has experienced fourteen MPDES permit exceedances for CS₂ and total suspended solids ("TSS") between January 2021 and June 2024. TMC has already planned and budgeted for an upgrade to the facility's effluent treatment system, which is expected to address the recurring exceedances. The remediation requirements in the consent decree should be coordinated with the planned effluent treatment upgrade to avoid duplicative or conflicting requirements.

RD Comment. Mr. Dane notes that the Gallatin corrective action falls within Montana's RCRA-authorized program and that any corrective measures implemented at the site may also require a separate state consent order or corrective action order from MT DEQ. Mr. Dane recommends that the engagement team pursue a parallel negotiation track with Annika Hedstrom of the Montana Attorney General's Office to coordinate the federal consent decree requirements with any state-level corrective action requirements, thereby avoiding the imposition of potentially conflicting obligations from two different regulatory authorities.

Recommendation. We recommend the following revisions to Section VI as it pertains to Gallatin:

(a) Insert SWMU prioritization provisions based on a risk-based assessment, with the CS₂ groundwater plume as the first priority;

(b) Add an operational accommodation provision for the Gallatin site (and for other active facilities, as discussed in Section IV.A below) addressing scheduling flexibility during planned turnarounds and ongoing operations; and

F.3. Bonanza Creek Gold Mine (Bonanza Creek Site)

DOJ Draft Position. The DOJ Draft requires commencement of heap-leach liner repair and containment within twelve months of the Effective Date (i.e., by June 14, 2026). The remediation addresses three documented releases of process solution containing WAD cyanide and mercury:

The applicable discharge limit for WAD cyanide is 0.022 mg/L, and the applicable water-quality criterion for mercury is 0.77 µg/L. The DOJ Draft estimates remediation costs at $63.2 million over a twenty-year period, with a net present value at 3% of approximately $47.1 million.

AB Comment (Liner). Dr. Bergmann notes that the DOJ Draft requires complete relining of the entire 80-acre heap-leach pad within eighteen months. Dr. Bergmann's assessment, based on Pinnacle Creek's detailed field investigation conducted in September 2024, indicates that only approximately 12 acres of the heap-leach liner exhibit documented damage (tears, punctures, and areas of accelerated degradation). The remaining 68 acres of liner are intact and performing within design specifications, as confirmed by leak detection system monitoring data. Complete relining of the entire 80-acre pad would cost an estimated $35 million or more beyond what is necessary to address the documented damage and would require the removal and reprocessing of millions of tons of spent ore, creating significant operational disruption and generating substantial additional waste management obligations.

Dr. Bergmann recommends targeted repair of the 12 acres of damaged liner, combined with installation of an enhanced leak detection system ("ELDS") across the entire pad. The ELDS would provide continuous, real-time monitoring of liner integrity and would enable early detection of any future damage before a release occurs. This approach would address the root cause of the documented releases at a fraction of the cost of complete relining, while providing superior long-term environmental protection through continuous monitoring.

GL Comment. Mr. Linford emphasizes that Bonanza Creek is an active gold mining operation with an estimated remaining mine life of approximately twelve to fifteen years. Complete relining of the 80-acre heap-leach pad would require cessation of all mining operations for an estimated twelve to eighteen months, with economic consequences including: (a) loss of gold production revenue estimated at $120–$150 million per year; (b) workforce layoff or furlough for approximately 380 employees; (c) potential forfeiture of mining permits and water rights due to non-use; and (d) cascading effects on TMC's consolidated financial performance and debt covenants.

Mr. Linford requests a phased approach to liner repair that would allow continued mining operations with interim containment measures, followed by targeted repair of the damaged areas during planned operational pauses. Mr. Linford also notes that TMC has already taken significant voluntary corrective actions in response to the three documented releases, including the installation of netting and bird deterrent systems at the solution ponds. These systems have been effective in eliminating the seventeen avian mortalities that occurred at the solution ponds between 2021 and 2023, and TMC's voluntary efforts should be recognized in the decree.

DQ Comment. Ms. Quartaro raises a critical water rights issue. Bonanza Creek Mining, LLC holds appropriative water rights under Nevada law that are essential to the continued operation of the mine. Under Nevada's "use it or lose it" doctrine, failure to exercise appropriative water rights for a period of five or more consecutive years can result in forfeiture or abandonment of those rights. The consent decree must not mandate water management measures that would prevent TMC from exercising its water rights, as forfeiture of those rights would be irreversible and would have permanent consequences for the mine's viability. Ms. Quartaro recommends the insertion of a savings clause expressly preserving TMC's water rights and providing that the consent decree does not require any action or forbearance that would result in the forfeiture or abandonment of appropriative water rights under Nevada law.

Ms. Quartaro further reports that NV DEP, through Ricardo Fuentes, has indicated that the state will seek additional conditions on the state water pollution control permit applicable to the Bonanza Creek site. These additional conditions may overlap with or differ from the consent decree's requirements, and coordination between the federal and state regulatory tracks will be essential.

AB Comment (Mercury). Dr. Bergmann notes that the DOJ Draft references the mercury treatment cost estimates prepared by EPA's technical expert, Dr. Patricia Voss of Cascade Geosciences, Inc. Dr. Bergmann disagrees with several of Dr. Voss's assumptions regarding passive mercury treatment, including the assumed treatment efficiency of constructed wetland cells in the high-desert environment (limited precipitation, extreme temperature variation, and high evapotranspiration rates). Pinnacle Creek proposes active carbon adsorption as the preferred mercury treatment technology, which is more effective than passive treatment in arid environments but can be phased to align with the mine's operational schedule. Dr. Bergmann recommends that the parties resolve this technical dispute through a joint expert conference between Pinnacle Creek and Cascade Geosciences, with the goal of reaching a consensus on treatment technology and associated costs before the redline is submitted.

Recommendation. We recommend the following revisions to Section VI as it pertains to Bonanza Creek:

(a) Propose targeted liner repair (12 acres of documented damage) with installation of an enhanced leak detection system across the full pad, in lieu of the DOJ Draft's requirement for complete relining of the 80-acre pad;

(b) Add an operational accommodation provision ensuring that remediation activities do not require cessation of mining operations;

(d) Propose a joint technical conference between Pinnacle Creek Environmental and Cascade Geosciences, Inc. to resolve the mercury treatment technology dispute; and

(e) Coordinate with NV DEP on the state water pollution control permit conditions.

F.4. Kanawha Bend Chemical Plant (Kanawha Bend Site)

DOJ Draft Position. The DOJ Draft requires completion of interim stabilization measures within eighteen months of the Effective Date (i.e., by December 14, 2026). The remediation at Kanawha Bend addresses the following principal contamination conditions:

• Sulfuric acid residuals in soil, with pH levels as low as 1.8;

• Heavy metals, including lead at concentrations up to 4,200 mg/kg and arsenic at concentrations up to 890 mg/kg;

• DNAPL in the fractured bedrock aquifer underlying the site.

The DOJ Draft estimates remediation costs at $38.9 million over a twenty-year period, with a net present value at 3% of approximately $29.0 million. The DOJ Draft also includes EPA past-cost recovery of $3.8 million for the emergency response to a sulfuric acid release to a Kanawha River tributary on June 14, 2020.

AB Comment. Dr. Bergmann notes that DNAPL remediation in fractured bedrock is widely recognized as among the most technically challenging remediation scenarios in the environmental engineering field. Conventional pump-and-treat approaches are generally ineffective in fractured bedrock settings because the contaminant migrates through discrete fracture pathways that cannot be efficiently accessed by conventional extraction wells. The DOJ Draft's eighteen-month deadline for completion of interim stabilization measures is achievable only if the scope of "interim stabilization" is limited to the former surface impoundment closure and surface soil stabilization activities. The DNAPL containment and remediation component requires a substantially longer timeline and a more complex remedy design, potentially including injection of reactive amendments into fracture zones, monitored natural attenuation, and long-term hydraulic containment.

Dr. Bergmann recommends bifurcating the interim stabilization requirements into two components: (a) surface stabilization (former surface impoundment closure and soil stabilization), with an eighteen-month deadline, consistent with the DOJ Draft; and (b) DNAPL remedy (subsurface containment and remediation), with a separate, longer timeline to be established based on the results of a DNAPL characterization study, with interim containment measures in place during the characterization phase.

GL Comment. Mr. Linford notes that the Kanawha Bend Chemical Plant is an active facility with ongoing sulfuric acid regeneration operations. The same operational accommodation concerns that apply to the Gallatin site also apply to Kanawha Bend: remediation activities must not unreasonably interfere with ongoing lawful operations, and the decree must provide scheduling flexibility to accommodate planned facility turnarounds and maintenance activities.

NT Comment. Mr. Tully reports that WV DEP, through Loretta May Hatcher, has indicated that the state may pursue a separate state consent order for the former surface impoundment at Kanawha Bend under West Virginia solid waste regulations (W. Va. Code § 22-15 et seq.). Additionally, a modification of RCRA Permit No. WVD048823915 may be required to incorporate the corrective action requirements established by the consent decree. Mr. Tully emphasizes the need to ensure that the federal consent decree does not preempt or conflict with state administrative proceedings, and that the hierarchy between the federal decree and any state consent order is clearly established. He recommends the insertion of a coordination provision requiring the parties to use good faith efforts to harmonize the requirements of the federal decree with any state consent order or permit modification applicable to the Kanawha Bend site.

EN/GN Comment. The DOJ Draft demands payment of the $3.8 million Kanawha Bend past-cost reimbursement within sixty days of the Effective Date. Combined with the $14.3 million Ridgecrest past-cost reimbursement (also due within sixty days), the total past-cost reimbursement obligation is $18.1 million. We recommend negotiating to include the past-cost reimbursement in the penalty installment schedule, or at minimum extending the payment deadline to 180 days after the Effective Date. The financial impact of the near-term cash flow concentration is discussed in detail in Section IV.B below.

Recommendation. We recommend the following revisions to Section VI as it pertains to Kanawha Bend:

(a) Bifurcate the interim stabilization requirements into surface stabilization (eighteen-month deadline) and DNAPL remedy (separate, longer timeline with interim containment);

(b) Add an operational accommodation provision for the Kanawha Bend site, consistent with the provisions recommended for Gallatin and Bonanza Creek;

(c) Extend the past-cost reimbursement payment deadline from sixty days to 180 days after the Effective Date, or alternatively incorporate past-cost reimbursement into the civil penalty installment schedule;

(d) Insert a coordination provision for the federal decree and any WV DEP state consent order or RCRA permit modification applicable to Kanawha Bend.

G. Section VII — Supplemental Environmental Projects (SEPs)

DOJ Draft Position. The DOJ Draft requires TMC to fund and implement three Supplemental Environmental Projects ("SEPs") totaling $12.0 million:

GL Comment. Mr. Linford notes that the SEP budgets appear reasonable based on his review and that the Flint Creek Watershed Restoration project aligns with TMC's existing community relations commitments in Granite County. TMC has maintained a community liaison office in Philipsburg, Montana since 2020 and has provided voluntary support for watershed restoration efforts in the Flint Creek drainage. Mr. Linford requests that the consent decree include provisions allowing TMC to receive public recognition for its voluntary contribution to these projects, as such recognition supports TMC's social license to operate and its relationships with the local communities affected by the Ridgecrest site.

MSP Comment. Ms. Park requests that the SEP compliance obligations be clearly defined with objective completion criteria to avoid open-ended liability. The DOJ Draft's SEP provisions are drafted in general terms, without specifying the particular deliverables, milestones, and acceptance criteria that will constitute "completion" of each SEP. Without objective completion criteria, TMC could face ongoing liability for SEP compliance even after the projects have been substantially completed, if the government takes the position that additional work is required. Ms. Park further requests that the SEPs terminate upon completion and certification by the independent monitor, independent of the remediation obligations at the corresponding sites. The SEPs should not be held open as a continuing obligation if the underlying remediation at the corresponding site experiences delays or setbacks.

AB Comment. Dr. Bergmann notes that the Flint Creek SEP should incorporate adaptive management elements, as streambank conditions along the twelve-mile project reach may change over the multi-year project period due to natural hydrologic events (flooding, drought, channel migration), land use changes in the watershed, or upstream remediation activities at Ridgecrest. The $5.5 million budget assumes current material and labor costs in Granite County, which have experienced significant inflation in recent years. Dr. Bergmann recommends the inclusion of a cost-escalation cap or a "commercially reasonable efforts" qualifier, providing that TMC's obligation is to expend the specified budget amount using commercially reasonable efforts to achieve the stated project objectives, rather than an obligation to achieve a specified outcome regardless of cost.

DQ Comment. Ms. Quartaro requests confirmation that TMC's obligation with respect to the Battle Mountain Community Drinking Water Improvement project ($3.5 million) is limited to funding the construction of the facility upgrade, and that the municipality (or other local governmental entity) assumes full operational responsibility for the upgraded facility upon completion. TMC should have no ongoing maintenance, operation, or repair obligation with respect to the Battle Mountain water treatment facility after the project is complete and the facility has been accepted by the municipality.

NT Comment. Mr. Tully notes that the Institute Community Air Quality Monitoring Network ($3.0 million for installation plus ten-year operation) includes a ten-year operational commitment that should be clearly defined with a fixed end date, rather than a floating period that could restart or extend based on decree milestones or other triggering events. Mr. Tully recommends specifying that the ten-year operational period commences upon EPA's acceptance of the initial installation and certification of the monitoring network, and that the operational obligation terminates on the ten-year anniversary of that certification, regardless of the status of remediation at the Kanawha Bend site.

Recommendation. We recommend the following revisions to Section VII:

(a) Add objective completion criteria for each SEP, specifying the deliverables, milestones, and acceptance standards that will constitute "completion";

(b) Add cost-escalation protections, including a "commercially reasonable efforts" qualifier for the Flint Creek SEP and comparable provisions for the other SEPs;

(c) Clarify that SEP termination occurs upon completion and certification, independent of remediation obligations at the corresponding sites;

(d) Confirm that TMC's obligation for the B

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT This memorandum is protected by the attorney-client privilege and constitutes attorney work product prepared in anticipation of litigation. This document and its contents should not be disclosed to any person outside of the attorney-client relationship without the express written consent of Calderwood & Harkness LLP and Torchlight Mining Corp.
CALDERWOOD & HARKNESS LLP
MEMORANDUM
November 25, 2024
To: Harrison Wexford, Responsible Partner Beatrice Holloway, Billing Partner
From: Elliot Nguyen, Lead Associate Grace Nakamura, Working Associate
Re: Internal Redline and Comment Compilation — DOJ First Draft Consent Decree (dated November 8, 2024)
Matter: Torchlight Mining Corp. — Multi-Site EPA Compliance & Consent Decree Negotiation
Matter No.: 1039-00003
Case: United States of America and State of Montana v. Torchlight Mining Corp. et al., Civil Action No. 9:24-cv-00087-DWM (U.S.D.C., D. Montana, Missoula Division)
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I. Purpose and Summary
This memorandum consolidates all comments received on the United States Department of Justice's ("DOJ") first draft consent decree, which was circulated by DOJ trial attorney Philip Orenstein to Calderwood & Harkness LLP on November 8, 2024 (the "DOJ First Draft" or the "DOJ Draft"). The comments compiled herein were received from the following sources: (a) Torchlight Mining Corp. ("TMC") management, including its General Counsel and its Vice President for Environmental Health & Safety; (b) TMC's environmental remediation consultant, Pinnacle Creek Environmental, LLC ("Pinnacle Creek"); (c) local counsel in each of the three affected jurisdictions (Montana, Nevada, and West Virginia); and (d) the Calderwood & Harkness LLP engagement team responsible for leading the consent decree negotiation on TMC's behalf.
The compilation is organized on a section-by-section basis, mirroring the structure of the DOJ Draft, and distills the input from all sources into a unified set of proposed revisions. These proposed revisions will be incorporated into TMC's comprehensive redline of the DOJ Draft, which is targeted for submission to DOJ and the United States Environmental Protection Agency ("EPA") on or about December 16, 2024. The redline will be accompanied by a transmittal letter summarizing the principal areas of proposed change and the rationale supporting TMC's positions.
Comments were received from the following individuals, who are attributed by initials throughout this memorandum:
•  MSP — Miriam Soo-Hwan Park, General Counsel, Torchlight Mining Corp.
•  GL — Gareth Linford, Vice President, Environmental Health & Safety, Torchlight Mining Corp.
•  AB — Dr. Astrid Bergmann, P.E., Senior Principal, Pinnacle Creek Environmental, LLC
•  RD — Russell Dane, Lead Partner, Holcroft, Dane & Weiss LLP ("HDW"), Montana local counsel
•  DQ — Denise Quartaro, Lead Partner, sagebrush Law Group, PLLC ("Sagebrush"), Nevada local counsel
•  NT — Nathan Tully, Lead Partner, Baxter, Tully & Crane PLLC ("BTC"), West Virginia local counsel
•  EN/GN — Elliot Nguyen and Grace Nakamura, Calderwood & Harkness LLP
This memorandum should be read in conjunction with the C&H Annotated Review of the DOJ First Draft (dated November 12, 2024) (the "Annotated Review"), which serves as the baseline analytical document upon which the comments compiled herein build. The Annotated Review provided a preliminary, section-by-section assessment of the DOJ Draft from a legal and strategic perspective and identified the principal areas of concern that were then circulated to the client team and local counsel for their independent review and comment.
Readers should also note that certain comments overlap with issues previously flagged in two earlier work product documents: the Preliminary Case Assessment Memorandum (dated November 4, 2024) and the Regulatory Exposure Analysis (dated November 8, 2024). Where a comment echoes or builds upon analysis from those documents, we have noted the connection but have not repeated the prior analysis in full. Those documents remain part of the active working file for this matter and should be referenced as needed.
II. Overview of Comment Sources and Methodology
A. TMC Management Comments
Miriam Soo-Hwan Park, General Counsel of Torchlight Mining Corp., submitted written comments via email on November 18, 2024. Ms. Park's twelve-page memorandum focused primarily on corporate governance provisions within the DOJ Draft, including the identification of authorized signatories for decree-related filings and certifications, the definition of subsidiary and affiliated entities that fall within the scope of the decree's obligations, indemnification provisions as between TMC parent and its subsidiaries, and the mechanics of the financial assurance requirements. Ms. Park also addressed certain provisions bearing on TMC's insurance recovery posture, including language that could be construed as admissions adverse to TMC's interests in its ongoing coverage dispute with Meridian Environmental Insurance Company.
Gareth Linford, Vice President of Environmental Health & Safety at TMC, submitted written comments via email on November 20, 2024. Mr. Linford's eighteen-page memorandum focused on the technical remediation standards specified in the DOJ Draft, sampling and monitoring protocols, performance standards and their achievability, the feasibility of the remediation schedules proposed by the government, and the operational impact of the DOJ Draft's requirements on the Bonanza Creek gold mine (an active open-pit mining operation) and the Gallatin Chemical Works (an active specialty chemical manufacturing facility). Mr. Linford's comments reflect significant input from TMC's in-house environmental engineering staff and from the operational management teams at each of the four sites.
In addition, TMC's Chief Executive Officer, Douglas K. Prennell, and Chief Financial Officer, Carolyn Bracebridge, provided oral comments conveyed through Ms. Park. These comments addressed TMC's financial exposure caps, the timing of civil penalty installment payments, and the interaction between the consent decree's financial obligations and the Harborstone National Bank, N.A. credit facility. The Harborstone facility is a C$750.0 million syndicated revolving credit facility with a maturity date of March 15, 2027, and contains environmental liability covenants that constrain TMC's ability to absorb unanticipated environmental expenditures. The interplay between the consent decree obligations and the RCF covenants is discussed further in Section IV.B below.
B. Pinnacle Creek Environmental, LLC Comments
Dr. Astrid Bergmann, P.E., Senior Principal at Pinnacle Creek Environmental, LLC, submitted a thirty-four-page technical comment memorandum on November 19, 2024. Pinnacle Creek serves as TMC's primary environmental remediation consultant for all four sites encompassed by the consent decree and has been engaged on the Ridgecrest and Bonanza Creek sites since 2019 and on the Gallatin and Kanawha Bend sites since 2021. Dr. Bergmann's extensive memorandum covers all four sites and provides detailed technical analysis, including the following principal areas of focus:
Ridgecrest Copper-Molybdenum Mine: Dr. Bergmann's analysis identifies a significant discrepancy between TMC's remediation cost estimate ($187.5 million over thirty years) and EPA's estimate ($224.0 million over the same period). Dr. Bergmann attributes the discrepancy primarily to EPA's assumption that active water treatment will be required in perpetuity at the tailings impoundment and related acid mine drainage systems, whereas Pinnacle Creek's assessment demonstrates that a transition to passive treatment (constructed wetlands and biochemical reactors) is technically feasible beginning at approximately Year 15 of the remediation program. Dr. Bergmann's memorandum includes detailed cost buildup tables for both the TMC and EPA scenarios and recommends that TMC negotiate toward a middle ground or, alternatively, seek adoption of TMC's technology pathway with an agreed cost ceiling. Dr. Bergmann also addresses the feasibility of the DOJ Draft's proposed thirty-year remediation timeline and the selection of acid mine drainage treatment technologies.
Gallatin Chemical Works: Dr. Bergmann addresses the carbon disulfide (CS₂) groundwater remediation approach, including the identification and characterization of the CS₂ plume, which shows maximum concentrations of 890 µg/L against a maximum contaminant level ("MCL") of 10 µg/L. The memorandum also addresses the identification and prioritization of three solid waste management units ("SWMUs") and the proposed sequencing of corrective action across those units.
Bonanza Creek Gold Mine: Dr. Bergmann's analysis focuses on the heap-leach liner repair engineering standards, including a detailed comparison of targeted repair (addressing the 12 acres of documented liner damage) versus the DOJ Draft's requirement for complete relining of the entire 80-acre heap-leach pad. The memorandum also addresses cyanide weak-acid-dissociable ("WAD") discharge limits and mercury treatment technology selection, including a critique of the technical assumptions underlying EPA's technical expert's (Dr. Patricia Voss of Cascade Geosciences, Inc.) cost estimates for mercury treatment.
Kanawha Bend Chemical Plant: Dr. Bergmann addresses the technically complex challenge of dense non-aqueous phase liquid ("DNAPL") remediation in fractured bedrock, including the limitations of conventional pump-and-treat approaches in such geological settings. The memorandum discusses the appropriate scope of interim stabilization measures and the relationship between surface stabilization (former surface impoundment closure and soil stabilization) and subsurface DNAPL containment and remediation. Dr. Bergmann also addresses sulfuric acid soil treatment standards for the heavily contaminated soils (pH as low as 1.8) present at the site.
C. Local Counsel Comments
Comments were received from each of the three local counsel firms retained by TMC for the jurisdictions in which the four sites are located.
Holcroft, Dane & Weiss LLP (Russell Dane). Mr. Dane submitted an eight-page comment memorandum on November 21, 2024. His comments address Montana-specific issues, including coordination between the consent decree and Montana Pollutant Discharge Elimination System ("MPDES") permits applicable to the Ridgecrest and Gallatin sites; the joinder language for the Montana Department of Environmental Quality ("MT DEQ") as a co-plaintiff; the interaction between the consent decree and TMC's hard rock mining reclamation permits at Ridgecrest; and the integration of the existing Ridgecrest Administrative Order on Consent ("AOC") (Docket No. CERCLA-08-2022-0039) with the consent decree. Mr. Dane flagged a significant risk of dual obligations if the AOC is not expressly superseded by the consent decree.
sagebrush Law Group, PLLC (Denise Quartaro). Ms. Quartaro submitted a six-page comment memorandum on November 21, 2024. Her comments address Nevada-specific issues, including coordination with Nevada water pollution control permits, the joinder language for the Nevada Division of Environmental Protection ("NV DEP") as a co-plaintiff, the preservation of Bonanza Creek Mining, LLC's appropriative water rights under Nevada law, and the need for carve-outs to protect active mining operations at Bonanza Creek from unreasonable interference by remediation requirements.
Baxter, Tully & Crane PLLC (Nathan Tully). Mr. Tully submitted a seven-page comment memorandum on November 22, 2024. His comments address West Virginia-specific issues, including coordination between the consent decree and the National Pollutant Discharge Elimination System ("NPDES") and Resource Conservation and Recovery Act ("RCRA") state-authorized permits applicable to the Kanawha Bend site; the joinder language for the West Virginia Department of Environmental Protection ("WV DEP") as a co-plaintiff; the integration of RCRA Permit No. WVD048823915 with the consent decree; and the hierarchy between a potential state consent order and the federal consent decree. Mr. Tully reported that WV DEP's Loretta May Hatcher has indicated the state may pursue a separate state consent order for the former surface impoundment at Kanawha Bend.
D. C&H Team Comments
The Calderwood & Harkness LLP engagement team's comments, attributed to EN/GN throughout this memorandum, build upon and supplement the Annotated Review of November 12, 2024. These comments incorporate additional analysis of relevant case law, precedent consent decrees in analogous multi-site environmental enforcement actions, and negotiation strategy considerations. Where the EN/GN comments align with or reinforce comments from other sources, we have noted the alignment. Where the EN/GN comments diverge from or supplement other commentators' views, we have identified the basis for the divergence and offered our recommended position.
Throughout this memorandum, our recommendations reflect a synthesis of all comment sources and are designed to produce a redline that advances TMC's interests while remaining within the bounds of credible and good-faith negotiation with the government. We have classified all proposed revisions into a three-tier priority matrix (set forth in Section V below) to guide the engagement team's decision-making during the redline preparation process and the subsequent negotiation sessions with DOJ and EPA.
III. Section-by-Section Comment Compilation
A. Section I — Jurisdiction and Venue
DOJ Draft Position. The DOJ Draft asserts jurisdiction under Section 309(b) of the Clean Water Act ("CWA"), 33 U.S.C. § 1319(b); Section 3008(a) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6928(a); and Sections 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9606, 9607, in the United States District Court for the District of Montana, Missoula Division. The DOJ Draft recites that the Honorable Donald W. Molloy is the presiding judge and that the defendants consent to the jurisdiction of the Court for purposes of the consent decree.
MSP Comment. Ms. Park requests confirmation that TMC's consent to the jurisdiction of the Court does not constitute a waiver of TMC's sovereign immunity arguments under the Canada Business Corporations Act ("CBCA") incorporation for any claims falling outside the four sites specifically enumerated in the consent decree. As a Canadian-incorporated parent entity, TMC has historically maintained that its amenability to the personal jurisdiction of U.S. courts is limited to matters in which it has consented or in which specific jurisdiction is established. Ms. Park requests the insertion of express language limiting the scope of jurisdictional consent to the enforcement of the consent decree itself and the obligations contained therein, and does not extend by implication to any other present or future claims, proceedings, or enforcement actions.
EN/GN Comment. We concur with Ms. Park's concern and recommend adding language specifying that TMC's consent to jurisdiction is limited to enforcement of the consent decree and does not extend to any future claims or proceedings not arising directly under the terms of the decree. This type of limiting language is standard in precedent consent decrees involving foreign-incorporated defendants, including United States v. Consolidated Copper Holdings, Ltd., No. 4:18-cv-02156 (D. Ariz. 2020), and United States v. Cerro Grande Resources, S.A. de C.V., No. 1:15-cv-00974 (D.N.M. 2017). The limiting clause should be drafted with sufficient specificity to prevent the government from arguing that TMC's consent to jurisdiction under the decree constitutes a general submission to the jurisdiction of the Court for all environmental enforcement purposes.
RD Comment. Mr. Dane requests confirmation that the consent decree does not disturb the concurrent jurisdiction of Montana state courts over state permit matters, including MPDES permit enforcement, hard rock mining reclamation permit enforcement, and any separate administrative or judicial proceedings brought by MT DEQ under Montana state law. Mr. Dane notes that the jurisdictional provisions of the DOJ Draft do not contain a preemption clause, but the absence of an express savings clause for state court jurisdiction could create ambiguity if a conflict arises between the consent decree's requirements and a state regulatory directive. He recommends inserting a savings clause preserving the concurrent jurisdiction of state courts over state law matters.
Recommendation. We recommend inserting a limiting clause on the scope of TMC's jurisdictional consent, specifying that consent is limited to enforcement of the consent decree and does not constitute a general submission to the jurisdiction of the Court. We further recommend adding a savings clause for state permit matters, confirming that the consent decree does not preempt the concurrent jurisdiction of state courts or state administrative agencies over matters arising under state law.
B. Section II — Parties and Definitions
DOJ Draft Position. The DOJ Draft names five Torchlight entities as defendants:
1.  Torchlight Mining Corp. (incorporated under the CBCA, Canada);
2.  Torchlight Mining (U.S.) Inc. (incorporated in Delaware, EIN 83-2047156);
3.  Torchlight Specialty Chemicals, Inc. (incorporated in Delaware, EIN 47-3819204);
4.  Ridgecrest Mine Holdings, LLC (organized in Montana, Montana Secretary of State ID No. E1042738); and
5.  Bonanza Creek Mining, LLC (organized in Nevada, Nevada Secretary of State Entity No. E0518294731).
The DOJ Draft identifies the following co-plaintiffs: the United States of America (acting through EPA and DOJ), the State of Montana (acting through MT DEQ and the Montana Attorney General's Office), the State of Nevada (acting through NV DEP and the Nevada Attorney General's Office), and the State of West Virginia (acting through WV DEP and the West Virginia Attorney General's Office).
The definitions section of the DOJ Draft includes, among others, definitions of "Defendants," "Settling Defendants," "Site" (with sub-definitions for each of the four sites), "Waste," "Hazardous Waste," "Hazardous Substance," "Work," and "Remedial Action."
MSP Comment. Ms. Park requests verification that the definitions of "Defendants" and "Settling Defendants" are coterminous — i.e., that every entity defined as a "Defendant" is also a "Settling Defendant" and vice versa — and that neither definition inadvertently captures future subsidiaries, affiliates, or entities that may be organized or acquired by TMC or its subsidiaries after the date of the decree. Ms. Park recommends the addition of an "as of the date of lodging" qualifier to both definitions, thereby fixing the universe of entities subject to the decree as of a specific date and preventing the government from arguing that newly formed or acquired entities are automatically subject to the decree's obligations. This concern is particularly acute given TMC's corporate development activities, which may include the formation of new special-purpose entities or the acquisition of additional mineral properties in the ordinary course of business.
GL Comment. Mr. Linford notes that the definition of "Site" for each of the four facilities in the DOJ Draft uses imprecise language, including references to the site "and vicinity" and "surrounding areas," without specifying precise legal descriptions or acreage figures. Mr. Linford recommends that the definition of "Site" for each facility be revised to reference the precise legal descriptions and surveyed acreage, as follows:
•  Ridgecrest: Approximately 3,200 acres comprising the mine footprint (open pit, tailings impoundment, waste rock storage areas, process facilities, and haul roads), within a total property boundary of approximately 8,700 acres owned or controlled by Ridgecrest Mine Holdings, LLC;
•  Gallatin: Approximately 145 acres comprising the chemical works facility, including all process areas, SWMUs, and the wastewater treatment system;
•  Bonanza Creek: Approximately 5,600 acres comprising the mine footprint (open pit, heap-leach pads, solution ponds, process facilities, and haul roads), within a total property boundary of approximately 12,400 acres owned or controlled by Bonanza Creek Mining, LLC; and
•  Kanawha Bend: Approximately 78 acres comprising the chemical plant facility, including all process areas, the former surface impoundment, and associated waste management units.
Mr. Linford emphasizes that the use of vague "vicinity" language could expand TMC's remediation obligations beyond the physical boundaries of the sites themselves, potentially encompassing areas that are not under TMC's ownership or control and where TMC may not be the responsible party for existing contamination.
AB Comment. Dr. Bergmann notes that the DOJ Draft's definitions of "Waste" and "Hazardous Waste" do not precisely track the statutory definitions under RCRA § 1004(5) (42 U.S.C. § 6903(5)) and RCRA § 1004(27) (42 U.S.C. § 6903(27)). The DOJ Draft employs an expanded definition that could capture non-hazardous mining residuals at the Ridgecrest and Bonanza Creek sites, including waste rock, overburden, and tailings that qualify for the Bevill Amendment exclusion (RCRA § 3001(b)(3)(A)(ii), 42 U.S.C. § 6921(b)(3)(A)(ii)). Dr. Bergmann recommends that the definitions be revised to track the statutory language precisely and to incorporate the applicable regulatory exclusions, to avoid inadvertently subjecting non-hazardous mining residuals to the more stringent corrective action standards applicable to hazardous wastes.
DQ Comment. Ms. Quartaro notes that the DOJ Draft's definitions do not adequately distinguish between active mining operations (Bonanza Creek) and closed or reclamation-stage sites (Ridgecrest). The legal obligations applicable to these two categories of sites differ materially under both federal and state law. At Bonanza Creek, TMC holds active mining permits and water appropriation rights that must be preserved, and the remediation obligations must be designed to accommodate ongoing mining operations. At Ridgecrest, mining operations ceased in 2019 and the site is in a reclamation phase, with different regulatory requirements and different operational constraints. Ms. Quartaro recommends that the definitions section include an express distinction between "Active Sites" and "Non-Active Sites" (or similar terminology) to ensure that the obligations imposed under the consent decree are properly calibrated to the operational status of each facility.
NT Comment. Mr. Tully confirms that the Kanawha Bend Chemical Plant is operated by Torchlight Specialty Chemicals, Inc. ("TSC"), a Delaware corporation (EIN 47-3819204), and that TSC is the holder of RCRA Permit No. WVD048823915 issued by WV DEP. Mr. Tully requests confirmation that the DOJ Draft properly identifies TSC — rather than TMC parent or another subsidiary — as the entity bearing the site-specific obligations for Kanawha Bend. Misidentification of the responsible entity could create confusion regarding permit compliance responsibilities and could complicate WV DEP's administration of the state-authorized RCRA program.
Recommendation. We recommend the following revisions to Section II of the DOJ Draft:
(a) Revise the definitions of "Defendants" and "Settling Defendants" to include an "as of the date of lodging" qualifier and to expressly exclude future subsidiaries, affiliates, or entities not listed;
(b) Revise the definition of "Site" for each facility to incorporate precise legal descriptions and acreage figures, eliminating vague "vicinity" language;
(c) Revise the definitions of "Waste" and "Hazardous Waste" to track the statutory definitions under RCRA §§ 1004(5) and 1004(27), incorporating applicable regulatory exclusions including the Bevill Amendment exclusion;
(d) Add definitions distinguishing between "Active Sites" (Gallatin, Bonanza Creek, and Kanawha Bend) and "Non-Active Sites" (Ridgecrest) or equivalent terminology; and
(e) Ensure that entity-specific obligations at each site are assigned to the correct subsidiary entity (i.e., TSC for Kanawha Bend, Ridgecrest Mine Holdings, LLC for Ridgecrest, Bonanza Creek Mining, LLC for Bonanza Creek).
C. Section III — Applicability
DOJ Draft Position. The DOJ Draft provides that the consent decree is binding upon the defendants, their successors, assigns, officers, directors, employees, agents, and contractors. The DOJ Draft further provides that no transfer of operations or ownership of any facility, in whole or in part, relieves the defendants of their obligations under the decree absent prior written consent from EPA.
MSP Comment. Ms. Park requests that the advance notice provision for any proposed transfer of operations or ownership be extended from the thirty-day period specified in the DOJ Draft to a sixty-day period. The thirty-day period is insufficient to allow for the preparation and submission of the requisite documentation demonstrating the proposed transferee's technical and financial capability to assume the decree's obligations. Ms. Park further requests the addition of a deemed-consent mechanism providing that if EPA does not object to a proposed transfer within sixty days of receiving notice, EPA's consent to the transfer shall be deemed granted. The deemed-consent mechanism is necessary to prevent EPA from indefinitely delaying a proposed transfer through administrative inaction, which could frustrate legitimate corporate transactions. Ms. Park notes that TMC's Board of Directors has, as a matter of long-term strategic planning, considered potential asset dispositions that may include one or more of the sites subject to the decree, and the applicability provisions must be structured to permit such transactions to proceed on a commercially reasonable timetable.
EN/GN Comment. We concur with Ms. Park's request for a sixty-day notice period and a deemed-consent mechanism. We further recommend the addition of a release-upon-transfer provision specifying that the original defendant is released from further obligation under the decree upon EPA's written approval (or deemed approval) of the transferee's assumption of all decree obligations and demonstration of adequate financial assurance. This provision is standard in precedent CERCLA consent decrees, including United States v. Tarrant Holdings, No. CV-89-039 (D. Mont. 1998), and United States v. Newmont USA Ltd., No. 3:05-cv-00580 (D. Nev. 2012). Without a release-upon-transfer provision, TMC could remain indefinitely liable under the decree even after divesting itself of the relevant site and transferring all operational and financial responsibility to a capable successor.
Recommendation. We recommend extending the advance notice period from thirty days to sixty days, adding a deemed-consent mechanism if EPA does not object within sixty days, and adding a release-upon-transfer provision conditioned upon EPA's approval of the successor's assumption of obligations and financial assurance.
D. Section IV — Effective Date and General Provisions
DOJ Draft Position. The DOJ Draft defines the "Effective Date" as thirty days after entry of the consent decree by the Court. Based on the parties' current target entry date of May 15, 2025, the Effective Date would be June 14, 2025.
GL Comment. Mr. Linford emphasizes that all remediation milestones set forth in the decree should be measured from the Effective Date, not from the date of lodging with the Court. The DOJ Draft is internally inconsistent on this point: certain milestone provisions reference the "Effective Date," while others reference the "date of entry" or the "date of lodging." Given that the public comment period and any judicial review of the decree will occur between the date of lodging and the date of entry, the period between lodging and entry could be several months, and the use of inconsistent dating conventions could materially shorten the time available to TMC to comply with early milestones. Mr. Linford requests that the engagement team conduct a comprehensive review of the DOJ Draft to confirm that all schedule provisions are tied consistently to the Effective Date.
EN/GN Comment. We concur with Mr. Linford's comment and will conduct a comprehensive dating-convention review as part of the redline preparation process. We further recommend inserting a definition of "Business Day" to avoid ambiguity in the calculation of notice periods, cure periods, and other deadlines specified in the decree. The DOJ Draft does not define "Business Day" and is ambiguous as to whether deadline calculations include weekends, federal holidays, and state holidays. We recommend defining "Business Day" as any day other than a Saturday, Sunday, or federal legal holiday, and specifying which deadlines in the decree are calculated in "Business Days" versus "Calendar Days."
Recommendation. We recommend confirming that all milestone provisions are tied consistently to the Effective Date (June 14, 2025, assuming entry on May 15, 2025) and inserting a definition of "Business Day" with a clear specification of which deadlines are calculated in Business Days versus Calendar Days.
E. Section V — Civil Penalty
DOJ Draft Position. The DOJ Draft imposes a total civil penalty of $31.5 million, allocated among the four sites as follows:
The DOJ Draft provides that the total civil penalty is payable in four equal quarterly installments of $7,875,000 each, commencing thirty days after the Effective Date. Assuming an Effective Date of June 14, 2025, the first installment would be due on July 14, 2025, with subsequent installments due on October 14, 2025, January 14, 2026, and April 14, 2026.
MSP/CB Comment (via MSP). CFO Carolyn Bracebridge requests that the payment schedule be restructured from four quarterly installments to a schedule consisting of an initial payment of 25% ($7,875,000) due thirty days after the Effective Date, followed by three annual installments of $7,875,000 each at twelve, twenty-four, and thirty-six months after entry of the decree. This restructuring would reduce the near-term cash impact on TMC's operations and would allow TMC to fund the penalty payments from operating cash flow rather than drawing on the Harborstone revolving credit facility. Under the DOJ Draft's quarterly installment schedule, TMC would be required to pay the full $31.5 million within approximately nine months of the Effective Date, concentrating the cash outflow during a period when TMC will simultaneously be funding substantial remediation mobilization costs, past-cost reimbursement obligations, and the initial financial assurance deposit. Under the proposed annual installment schedule, the final payment would not be due until approximately thirty-six months after entry (approximately May 2028), providing TMC with significantly greater financial flexibility.
EN/GN Comment. We note for the record that civil penalties paid to the government are non-deductible for federal income tax purposes under Internal Revenue Code § 162(f), as amended by the Tax Cuts and Jobs Act of 2017. The engagement team should ensure that the financial modeling prepared by Northspire Capital Markets, Inc. (Vivian Okafor, Managing Director) reflects the after-tax cash flow impact of the $31.5 million civil penalty — i.e., the penalty must be funded from after-tax dollars, effectively increasing its economic cost to TMC by a factor of approximately 1/(1 – marginal tax rate). This consideration reinforces the importance of negotiating a payment schedule that minimizes near-term cash flow pressure.
GL Comment. Mr. Linford has no technical comment on the penalty amounts or allocation.
AB Comment. Dr. Bergmann has no comment on the civil penalty provisions.
RD Comment. Mr. Dane notes that the allocation of $14.2 million in civil penalties to the Ridgecrest site and $5.8 million to the Gallatin site raises a question regarding Montana's share of or interest in the penalty allocation. Mr. Dane reports that Annika Hedstrom of the Montana Attorney General's Office has indicated that MT DEQ may seek separate state-level penalties if the federal penalty allocated to the Montana sites is deemed insufficient to deter future non-compliance and to compensate the state for its enforcement costs. Mr. Dane recommends that the engagement team coordinate with Ms. Hedstrom to determine whether the state will accept the federal penalty allocation as satisfying any state penalty claims, or whether the state intends to pursue additional penalties under Montana law.
Recommendation. We recommend proposing an annual installment schedule (25% at thirty days after the Effective Date, then three annual installments at twelve, twenty-four, and thirty-six months after entry) in lieu of the DOJ Draft's quarterly installment schedule. We further recommend flagging the state penalty coordination issue with Annika Hedstrom of the Montana Attorney General's Office and with the corresponding state contacts in Nevada and West Virginia, to determine the extent to which the federal penalty allocation satisfies or overlaps with potential state penalty claims.
F. Section VI — Remedial Action Requirements
F.1. Ridgecrest Copper-Molybdenum Mine (Ridgecrest Site)
DOJ Draft Position. The DOJ Draft requires submission of a Remedial Action Work Plan within 180 days of the Effective Date (i.e., by December 14, 2025). Remedy construction is to commence within twenty-four months of the Effective Date (i.e., by June 14, 2027). The DOJ Draft specifies a total remediation obligation of $224.0 million (based on EPA's cost estimate) over a thirty-year period, ending June 14, 2055.
The contaminant conditions at the Ridgecrest site are among the most severe of the four sites addressed by the decree. The DOJ Draft references the following principal contaminant concentrations and applicable standards:
The Ridgecrest site includes a 425-acre tailings impoundment with documented seepage to Flint Creek, a tributary of the Clark Fork River. The magnitude of the copper exceedance (approximately 5,400 times the chronic aquatic life standard) underscores the significance of the remediation challenge and the government's interest in securing robust remediation commitments.
AB Comment (Critical). Dr. Bergmann's analysis identifies a significant discrepancy between EPA's remediation cost estimate of $224.0 million and Pinnacle Creek's detailed estimate of $187.5 million. Both estimates cover a thirty-year remediation period; at a 3% discount rate, the net present values are approximately $152.3 million (EPA) and $127.4 million (Pinnacle Creek), respectively. Dr. Bergmann attributes the discrepancy primarily to a fundamental difference in technology pathway assumptions. EPA's cost estimate assumes active water treatment in perpetuity — i.e., the operation of a lime-and-soda-ash treatment plant for the full thirty-year period and beyond, with attendant capital replacement, operating, and maintenance costs. Pinnacle Creek's estimate assumes a transition from active treatment to passive treatment (constructed wetlands and sulfate-reducing biochemical reactors) beginning at approximately Year 15 of the remediation program, which significantly reduces long-term operating costs.
Dr. Bergmann notes that the passive treatment transition is technically feasible based on the site's hydrogeology, contaminant loading rates, and the demonstrated performance of analogous passive treatment systems at comparable acid mine drainage sites, including the Leviathan Mine (Alpine County, California) and the Cobalt Ridge Services Inc. Mine (Shasta County, California). Dr. Bergmann recommends that TMC negotiate the remediation cost obligation down from $224.0 million toward TMC's estimate of $187.5 million, or alternatively seek adoption of TMC's technology pathway with an agreed cost ceiling. If a negotiated midpoint is required, Dr. Bergmann suggests that approximately $198.6 million represents a reasonable compromise position.
GL Comment. Mr. Linford notes that the DOJ Draft's 180-day deadline for submission of the Remedial Action Work Plan is aggressive given the complexity of the remedial investigation/feasibility study ("RI/FS") that must inform the Work Plan, and the need for additional baseline groundwater data from the existing monitoring well network. The current monitoring well network comprises forty-two wells, of which eight were installed in 2023 and do not yet have a full four-season dataset. Mr. Linford requests that the Work Plan submission deadline be extended to 270 days after the Effective Date (i.e., to approximately March 14, 2026), which would allow for the collection and analysis of at least two additional quarterly groundwater sampling rounds before the Work Plan is finalized.
RD Comment. Mr. Dane raises a critical issue regarding the integration of the existing Ridgecrest AOC (Docket No. CERCLA-08-2022-0039, executed September 15, 2022) with the consent decree. The DOJ Draft does not clearly supersede or terminate the AOC, creating a risk that TMC could be subject to dual obligations — i.e., the ongoing requirements of the AOC and the new requirements of the consent decree — covering overlapping or potentially conflicting remediation activities at the same site. Mr. Dane recommends the insertion of an express supersession clause providing that the consent decree supersedes and replaces the AOC in its entirety upon the Effective Date, and that all obligations arising under the AOC are merged into the consent decree.
Mr. Dane further notes that the DOJ Draft includes EPA past-cost recovery of $14.3 million for removal actions conducted at Ridgecrest between January 2021 and May 2023. This past-cost figure is addressed in detail in Section I (Section IX — EPA Past-Cost Reimbursement) below.
EN/GN Comment. We recommend that TMC negotiate the remediation cost obligation down from EPA's $224.0 million estimate toward TMC's estimate of $187.5 million, targeting approximately $198.6 million as a midpoint compromise. The $198.6 million figure corresponds to a net present value of approximately $134.9 million at a 3% discount rate, which is within the range of remediation costs at comparable mining sites of similar scale and complexity.
We further recommend the insertion of adaptive management provisions allowing remedy modification based on performance data collected during the remediation program, without requiring a formal decree modification proceeding. Under the current DOJ Draft, any modification to the approved remedy would require a formal motion to modify the consent decree under Federal Rule of Civil Procedure 60(b), which is procedurally burdensome and could delay the implementation of cost-effective remedy improvements. An adaptive management provision would allow the parties to agree on remedy modifications (such as the transition from active to passive water treatment) through an administrative process, subject to EPA approval, without court intervention.
Recommendation. We recommend the following revisions to Section VI as it pertains to Ridgecrest:
(a) Propose $198.6 million as the negotiated remediation cost obligation, representing a midpoint between EPA's $224.0 million estimate and TMC's $187.5 million estimate;
(b) Extend the Remedial Action Work Plan submission deadline from 180 days to 270 days after the Effective Date;
(c) Insert an express AOC supersession clause providing that the consent decree supersedes Docket No. CERCLA-08-2022-0039 in its entirety upon the Effective Date; and
(d) Add an adaptive management provision authorizing remedy modifications based on performance data through an administrative process without requiring formal decree modification.
F.2. Gallatin Chemical Works (Gallatin Site)
DOJ Draft Position. The DOJ Draft requires submission of a Corrective Measures Study ("CMS") within twelve months of the Effective Date (i.e., by June 14, 2026). The corrective action at Gallatin addresses three SWMUs identified under RCRA Permit No. MTD098712456. The DOJ Draft estimates remediation costs at $42.8 million over a fifteen-year period, with a net present value at 3% of approximately $34.1 million.
AB Comment. Dr. Bergmann notes that the DOJ Draft does not distinguish between the three SWMUs in terms of priority or sequencing for corrective action. Dr. Bergmann recommends that SWMU prioritization be based on a risk-based assessment, with the CS₂ groundwater plume designated as the first priority for corrective action. The CS₂ plume exhibits maximum concentrations of 890 µg/L, which is approximately 89 times the EPA MCL of 10 µg/L. The remaining SWMUs — the xanthate decomposition product area and the VOC soil contamination area (toluene and xylene) — should be addressed in a phased sequence, with the xanthate area as the second priority and the VOC area as the third priority. This risk-based sequencing approach is consistent with EPA's own corrective action guidance (EPA OSWER Directive 9502.00-6D) and would allow TMC to concentrate its initial resources on the contaminant posing the greatest risk to human health and the environment.
GL Comment. Mr. Linford emphasizes that the Gallatin Chemical Works is an active specialty chemical manufacturing facility and that the remediation work plans must account for ongoing operations. Mr. Linford notes that the facility operates on a continuous basis and that unplanned shutdowns or production curtailments resulting from remediation activities would have significant economic consequences, including potential breach of supply agreements with TMC's downstream customers. Mr. Linford requests the addition of an operational accommodation provision permitting schedule adjustments to remediation milestones during planned facility turnarounds, which typically occur for two to three weeks during the spring and fall.
Mr. Linford further notes that the Gallatin facility has experienced fourteen MPDES permit exceedances for CS₂ and total suspended solids ("TSS") between January 2021 and June 2024. TMC has already planned and budgeted for an upgrade to the facility's effluent treatment system, which is expected to address the recurring exceedances. The remediation requirements in the consent decree should be coordinated with the planned effluent treatment upgrade to avoid duplicative or conflicting requirements.
RD Comment. Mr. Dane notes that the Gallatin corrective action falls within Montana's RCRA-authorized program and that any corrective measures implemented at the site may also require a separate state consent order or corrective action order from MT DEQ. Mr. Dane recommends that the engagement team pursue a parallel negotiation track with Annika Hedstrom of the Montana Attorney General's Office to coordinate the federal consent decree requirements with any state-level corrective action requirements, thereby avoiding the imposition of potentially conflicting obligations from two different regulatory authorities.
Recommendation. We recommend the following revisions to Section VI as it pertains to Gallatin:
(a) Insert SWMU prioritization provisions based on a risk-based assessment, with the CS₂ groundwater plume as the first priority;
(b) Add an operational accommodation provision for the Gallatin site (and for other active facilities, as discussed in Section IV.A below) addressing scheduling flexibility during planned turnarounds and ongoing operations; and
(c) Coordinate with MT DEQ and the Montana Attorney General's Office on a parallel state-level corrective action track.
F.3. Bonanza Creek Gold Mine (Bonanza Creek Site)
DOJ Draft Position. The DOJ Draft requires commencement of heap-leach liner repair and containment within twelve months of the Effective Date (i.e., by June 14, 2026). The remediation addresses three documented releases of process solution containing WAD cyanide and mercury:
The applicable discharge limit for WAD cyanide is 0.022 mg/L, and the applicable water-quality criterion for mercury is 0.77 µg/L. The DOJ Draft estimates remediation costs at $63.2 million over a twenty-year period, with a net present value at 3% of approximately $47.1 million.
AB Comment (Liner). Dr. Bergmann notes that the DOJ Draft requires complete relining of the entire 80-acre heap-leach pad within eighteen months. Dr. Bergmann's assessment, based on Pinnacle Creek's detailed field investigation conducted in September 2024, indicates that only approximately 12 acres of the heap-leach liner exhibit documented damage (tears, punctures, and areas of accelerated degradation). The remaining 68 acres of liner are intact and performing within design specifications, as confirmed by leak detection system monitoring data. Complete relining of the entire 80-acre pad would cost an estimated $35 million or more beyond what is necessary to address the documented damage and would require the removal and reprocessing of millions of tons of spent ore, creating significant operational disruption and generating substantial additional waste management obligations.
Dr. Bergmann recommends targeted repair of the 12 acres of damaged liner, combined with installation of an enhanced leak detection system ("ELDS") across the entire pad. The ELDS would provide continuous, real-time monitoring of liner integrity and would enable early detection of any future damage before a release occurs. This approach would address the root cause of the documented releases at a fraction of the cost of complete relining, while providing superior long-term environmental protection through continuous monitoring.
GL Comment. Mr. Linford emphasizes that Bonanza Creek is an active gold mining operation with an estimated remaining mine life of approximately twelve to fifteen years. Complete relining of the 80-acre heap-leach pad would require cessation of all mining operations for an estimated twelve to eighteen months, with economic consequences including: (a) loss of gold production revenue estimated at $120–$150 million per year; (b) workforce layoff or furlough for approximately 380 employees; (c) potential forfeiture of mining permits and water rights due to non-use; and (d) cascading effects on TMC's consolidated financial performance and debt covenants.
Mr. Linford requests a phased approach to liner repair that would allow continued mining operations with interim containment measures, followed by targeted repair of the damaged areas during planned operational pauses. Mr. Linford also notes that TMC has already taken significant voluntary corrective actions in response to the three documented releases, including the installation of netting and bird deterrent systems at the solution ponds. These systems have been effective in eliminating the seventeen avian mortalities that occurred at the solution ponds between 2021 and 2023, and TMC's voluntary efforts should be recognized in the decree.
DQ Comment. Ms. Quartaro raises a critical water rights issue. Bonanza Creek Mining, LLC holds appropriative water rights under Nevada law that are essential to the continued operation of the mine. Under Nevada's "use it or lose it" doctrine, failure to exercise appropriative water rights for a period of five or more consecutive years can result in forfeiture or abandonment of those rights. The consent decree must not mandate water management measures that would prevent TMC from exercising its water rights, as forfeiture of those rights would be irreversible and would have permanent consequences for the mine's viability. Ms. Quartaro recommends the insertion of a savings clause expressly preserving TMC's water rights and providing that the consent decree does not require any action or forbearance that would result in the forfeiture or abandonment of appropriative water rights under Nevada law.
Ms. Quartaro further reports that NV DEP, through Ricardo Fuentes, has indicated that the state will seek additional conditions on the state water pollution control permit applicable to the Bonanza Creek site. These additional conditions may overlap with or differ from the consent decree's requirements, and coordination between the federal and state regulatory tracks will be essential.
AB Comment (Mercury). Dr. Bergmann notes that the DOJ Draft references the mercury treatment cost estimates prepared by EPA's technical expert, Dr. Patricia Voss of Cascade Geosciences, Inc. Dr. Bergmann disagrees with several of Dr. Voss's assumptions regarding passive mercury treatment, including the assumed treatment efficiency of constructed wetland cells in the high-desert environment (limited precipitation, extreme temperature variation, and high evapotranspiration rates). Pinnacle Creek proposes active carbon adsorption as the preferred mercury treatment technology, which is more effective than passive treatment in arid environments but can be phased to align with the mine's operational schedule. Dr. Bergmann recommends that the parties resolve this technical dispute through a joint expert conference between Pinnacle Creek and Cascade Geosciences, with the goal of reaching a consensus on treatment technology and associated costs before the redline is submitted.
Recommendation. We recommend the following revisions to Section VI as it pertains to Bonanza Creek:
(a) Propose targeted liner repair (12 acres of documented damage) with installation of an enhanced leak detection system across the full pad, in lieu of the DOJ Draft's requirement for complete relining of the 80-acre pad;
(b) Add an operational accommodation provision ensuring that remediation activities do not require cessation of mining operations;
(c) Insert a savings clause preserving Bonanza Creek Mining, LLC's appropriative water rights under Nevada law;
(d) Propose a joint technical conference between Pinnacle Creek Environmental and Cascade Geosciences, Inc. to resolve the mercury treatment technology dispute; and
(e) Coordinate with NV DEP on the state water pollution control permit conditions.
F.4. Kanawha Bend Chemical Plant (Kanawha Bend Site)
DOJ Draft Position. The DOJ Draft requires completion of interim stabilization measures within eighteen months of the Effective Date (i.e., by December 14, 2026). The remediation at Kanawha Bend addresses the following principal contamination conditions:
•  Sulfuric acid residuals in soil, with pH levels as low as 1.8;
•  Heavy metals, including lead at concentrations up to 4,200 mg/kg and arsenic at concentrations up to 890 mg/kg;
•  DNAPL in the fractured bedrock aquifer underlying the site.
The DOJ Draft estimates remediation costs at $38.9 million over a twenty-year period, with a net present value at 3% of approximately $29.0 million. The DOJ Draft also includes EPA past-cost recovery of $3.8 million for the emergency response to a sulfuric acid release to a Kanawha River tributary on June 14, 2020.
AB Comment. Dr. Bergmann notes that DNAPL remediation in fractured bedrock is widely recognized as among the most technically challenging remediation scenarios in the environmental engineering field. Conventional pump-and-treat approaches are generally ineffective in fractured bedrock settings because the contaminant migrates through discrete fracture pathways that cannot be efficiently accessed by conventional extraction wells. The DOJ Draft's eighteen-month deadline for completion of interim stabilization measures is achievable only if the scope of "interim stabilization" is limited to the former surface impoundment closure and surface soil stabilization activities. The DNAPL containment and remediation component requires a substantially longer timeline and a more complex remedy design, potentially including injection of reactive amendments into fracture zones, monitored natural attenuation, and long-term hydraulic containment.
Dr. Bergmann recommends bifurcating the interim stabilization requirements into two components: (a) surface stabilization (former surface impoundment closure and soil stabilization), with an eighteen-month deadline, consistent with the DOJ Draft; and (b) DNAPL remedy (subsurface containment and remediation), with a separate, longer timeline to be established based on the results of a DNAPL characterization study, with interim containment measures in place during the characterization phase.
GL Comment. Mr. Linford notes that the Kanawha Bend Chemical Plant is an active facility with ongoing sulfuric acid regeneration operations. The same operational accommodation concerns that apply to the Gallatin site also apply to Kanawha Bend: remediation activities must not unreasonably interfere with ongoing lawful operations, and the decree must provide scheduling flexibility to accommodate planned facility turnarounds and maintenance activities.
NT Comment. Mr. Tully reports that WV DEP, through Loretta May Hatcher, has indicated that the state may pursue a separate state consent order for the former surface impoundment at Kanawha Bend under West Virginia solid waste regulations (W. Va. Code § 22-15 et seq.). Additionally, a modification of RCRA Permit No. WVD048823915 may be required to incorporate the corrective action requirements established by the consent decree. Mr. Tully emphasizes the need to ensure that the federal consent decree does not preempt or conflict with state administrative proceedings, and that the hierarchy between the federal decree and any state consent order is clearly established. He recommends the insertion of a coordination provision requiring the parties to use good faith efforts to harmonize the requirements of the federal decree with any state consent order or permit modification applicable to the Kanawha Bend site.
EN/GN Comment. The DOJ Draft demands payment of the $3.8 million Kanawha Bend past-cost reimbursement within sixty days of the Effective Date. Combined with the $14.3 million Ridgecrest past-cost reimbursement (also due within sixty days), the total past-cost reimbursement obligation is $18.1 million. We recommend negotiating to include the past-cost reimbursement in the penalty installment schedule, or at minimum extending the payment deadline to 180 days after the Effective Date. The financial impact of the near-term cash flow concentration is discussed in detail in Section IV.B below.
Recommendation. We recommend the following revisions to Section VI as it pertains to Kanawha Bend:
(a) Bifurcate the interim stabilization requirements into surface stabilization (eighteen-month deadline) and DNAPL remedy (separate, longer timeline with interim containment);
(b) Add an operational accommodation provision for the Kanawha Bend site, consistent with the provisions recommended for Gallatin and Bonanza Creek;
(c) Extend the past-cost reimbursement payment deadline from sixty days to 180 days after the Effective Date, or alternatively incorporate past-cost reimbursement into the civil penalty installment schedule;
(d) Insert a coordination provision for the federal decree and any WV DEP state consent order or RCRA permit modification applicable to Kanawha Bend.
G. Section VII — Supplemental Environmental Projects (SEPs)
DOJ Draft Position. The DOJ Draft requires TMC to fund and implement three Supplemental Environmental Projects ("SEPs") totaling $12.0 million:
GL Comment. Mr. Linford notes that the SEP budgets appear reasonable based on his review and that the Flint Creek Watershed Restoration project aligns with TMC's existing community relations commitments in Granite County. TMC has maintained a community liaison office in Philipsburg, Montana since 2020 and has provided voluntary support for watershed restoration efforts in the Flint Creek drainage. Mr. Linford requests that the consent decree include provisions allowing TMC to receive public recognition for its voluntary contribution to these projects, as such recognition supports TMC's social license to operate and its relationships with the local communities affected by the Ridgecrest site.
MSP Comment. Ms. Park requests that the SEP compliance obligations be clearly defined with objective completion criteria to avoid open-ended liability. The DOJ Draft's SEP provisions are drafted in general terms, without specifying the particular deliverables, milestones, and acceptance criteria that will constitute "completion" of each SEP. Without objective completion criteria, TMC could face ongoing liability for SEP compliance even after the projects have been substantially completed, if the government takes the position that additional work is required. Ms. Park further requests that the SEPs terminate upon completion and certification by the independent monitor, independent of the remediation obligations at the corresponding sites. The SEPs should not be held open as a continuing obligation if the underlying remediation at the corresponding site experiences delays or setbacks.
AB Comment. Dr. Bergmann notes that the Flint Creek SEP should incorporate adaptive management elements, as streambank conditions along the twelve-mile project reach may change over the multi-year project period due to natural hydrologic events (flooding, drought, channel migration), land use changes in the watershed, or upstream remediation activities at Ridgecrest. The $5.5 million budget assumes current material and labor costs in Granite County, which have experienced significant inflation in recent years. Dr. Bergmann recommends the inclusion of a cost-escalation cap or a "commercially reasonable efforts" qualifier, providing that TMC's obligation is to expend the specified budget amount using commercially reasonable efforts to achieve the stated project objectives, rather than an obligation to achieve a specified outcome regardless of cost.
DQ Comment. Ms. Quartaro requests confirmation that TMC's obligation with respect to the Battle Mountain Community Drinking Water Improvement project ($3.5 million) is limited to funding the construction of the facility upgrade, and that the municipality (or other local governmental entity) assumes full operational responsibility for the upgraded facility upon completion. TMC should have no ongoing maintenance, operation, or repair obligation with respect to the Battle Mountain water treatment facility after the project is complete and the facility has been accepted by the municipality.
NT Comment. Mr. Tully notes that the Institute Community Air Quality Monitoring Network ($3.0 million for installation plus ten-year operation) includes a ten-year operational commitment that should be clearly defined with a fixed end date, rather than a floating period that could restart or extend based on decree milestones or other triggering events. Mr. Tully recommends specifying that the ten-year operational period commences upon EPA's acceptance of the initial installation and certification of the monitoring network, and that the operational obligation terminates on the ten-year anniversary of that certification, regardless of the status of remediation at the Kanawha Bend site.
Recommendation. We recommend the following revisions to Section VII:
(a) Add objective completion criteria for each SEP, specifying the deliverables, milestones, and acceptance standards that will constitute "completion";
(b) Add cost-escalation protections, including a "commercially reasonable efforts" qualifier for the Flint Creek SEP and comparable provisions for the other SEPs;
(c) Clarify that SEP termination occurs upon completion and certification, independent of remediation obligations at the corresponding sites;
(d) Confirm that TMC's obligation for the B

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