UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION
JOINT MOTION TO LODGE CONSENT DECREE
I. INTRODUCTION
The United States of America, acting through the United States Department of Justice, Environment and Natural Resources Division ("DOJ ENRD"), on behalf of the United States Environmental Protection Agency ("EPA"); the State of Montana, acting through the Montana Department of Environmental Quality ("MT DEQ") and the Montana Attorney General's Office; the State of Nevada, acting through the Nevada Division of Environmental Protection ("NV DEP") and the Nevada Attorney General's Office; and the State of West Virginia, acting through the West Virginia Department of Environmental Protection ("WV DEP") and the West Virginia Attorney General's Office (collectively, "Plaintiffs"), together with Defendants Torchlight Mining Corp. ("TMC"), Torchlight Mining (U.S.) Inc. ("TM(US)"), Torchlight Specialty Chemicals, Inc. ("TSC"), Ridgecrest Mine Holdings, LLC ("RMH"), and Bonanza Creek Mining, LLC ("BCM") (collectively, "Defendants"), hereby jointly move this Court, pursuant to 28 U.S.C. § 7003(d) and the inherent authority of the Court, to lodge the proposed Consent Decree resolving claims brought under the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (the "Clean Water Act" or "CWA"), the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. ("RCRA"), and the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq. ("CERCLA"), arising from conditions at four facilities in Montana, Nevada, and West Virginia operated or formerly operated by Defendants.
The parties respectfully request that the Court accept the proposed Consent Decree for lodging and direct the publication of public notice in the Federal Register to initiate a thirty (30)-day public comment period, as required by 28 U.S.C. § 7003(d). The proposed Consent Decree represents the comprehensive resolution of complex, multi-statute environmental enforcement claims involving contamination at four geographically dispersed sites spanning three states and three EPA Regions. It is the product of extensive, arm's-length negotiations conducted over approximately seven months, including court-ordered mediation, and reflects a fair, reasonable, and lawful resolution of the claims alleged in the Complaint.
The proposed Consent Decree is attached hereto as Exhibit 1 and is incorporated by reference herein. The Consent Decree was fully executed by all parties as of February 14, 2025.
This Motion is filed on February 18, 2025.
II. PROCEDURAL HISTORY
On January 18, 2024, the United States of America, acting through the Department of Justice, Environment and Natural Resources Division, filed a Complaint in this action alleging violations of CWA § 301, 33 U.S.C. § 1311; RCRA §§ 3004 and 3005, 42 U.S.C. §§ 6924 and 6925; and CERCLA § 107, 42 U.S.C. § 9607, at four facilities operated or formerly operated by Defendants Torchlight Mining Corp., Torchlight Mining (U.S.) Inc., Torchlight Specialty Chemicals, Inc., Ridgecrest Mine Holdings, LLC, and Bonanza Creek Mining, LLC. The Complaint alleged that Defendants' operations at the Ridgecrest Copper-Molybdenum Mine in Granite County, Montana; the Gallatin Chemical Works in Gallatin County, Montana; the Bonanza Creek Gold Mine in Lander County, Nevada; and the Kanawha Bend Chemical Plant in Kanawha County, West Virginia, resulted in significant releases of hazardous substances and pollutants into waters of the United States, soil, and groundwater, in violation of federal environmental statutes. The States of Montana, Nevada, and West Virginia were joined as co-plaintiffs in connection with the facilities located within their respective jurisdictions.
On March 5, 2024, Defendants filed their Answer to the Complaint, generally denying liability while acknowledging certain factual circumstances concerning operations at the four subject facilities.
On April 22, 2024, the parties entered into a Tolling Agreement, which was filed with the Court, tolling the applicable statutes of limitations and repose with respect to all claims in the Complaint through December 31, 2025. The Tolling Agreement was executed in order to preserve the parties' respective rights while creating a window for meaningful settlement negotiations.
On May 15, 2024, the Court entered an Order referring this matter to Magistrate Judge Clara Finnegan for purposes of court-ordered mediation and alternative dispute resolution, pursuant to Local Rule 16.6. Magistrate Judge Finnegan conducted an initial mediation session on June 28, 2024, and a follow-up session on July 19, 2024.
On July 30, 2024, following the court-ordered mediation sessions and substantial informal discussions among the parties, the parties reached an agreement in principle on the framework for a consent decree to resolve all claims asserted in the Complaint. The agreement in principle set forth the general contours of remediation obligations, civil penalty amounts, past-costs reimbursement, supplemental environmental projects, financial assurance mechanisms, and monitoring and reporting requirements.
Following the execution of the agreement in principle, the parties engaged in extensive and detailed negotiations over the specific terms of the Consent Decree. These negotiations spanned approximately seven months and included the following principal milestones:
• On November 8, 2024, DOJ ENRD circulated the first complete draft of the proposed Consent Decree to Defendants' counsel.
• On December 16, 2024, counsel for TMC transmitted a revised draft of the Consent Decree reflecting Defendants' proposed revisions and counter-proposals.
• On January 14, 2025, the United States circulated a government counter-redline addressing Defendants' proposed revisions and incorporating additional input from the co-plaintiff States.
• On January 24, 2025, counsel for TMC transmitted a second redline of the Consent Decree, narrowing the remaining areas of disagreement.
• On February 3, 2025, the parties convened an in-person negotiation session in Helena, Montana, attended by lead counsel for all parties, representatives of EPA Regions 3, 8, and 9, and representatives of the three co-plaintiff States. At the conclusion of this session, the parties reached agreement on the remaining open terms and finalized a substantially agreed Consent Decree text.
On February 14, 2025, the States of Montana, Nevada, and West Virginia, as co-plaintiffs, executed joinder agreements confirming their assent to the terms of the proposed Consent Decree. The joinder agreements are incorporated as appendices to the Consent Decree.
The proposed Consent Decree was fully executed by all parties and is now presented to the Court for lodging. The parties respectfully submit that the Consent Decree represents a comprehensive, fair, and reasonable resolution of the claims alleged in this action, and they jointly request that the Court lodge the Consent Decree and initiate the public comment process required by law.
III. DESCRIPTION OF THE PARTIES
A. Plaintiffs. United States of America. The United States of America is acting in this matter through the Department of Justice, Environment and Natural Resources Division, on behalf of the United States Environmental Protection Agency. The Lead DOJ Trial Attorney is Philip Orenstein, Environmental Enforcement Section, Environment and Natural Resources Division, U.S. Department of Justice, 150 M Street NE, Washington, D.C. 20002. The Supervising DOJ Attorney is Katherine Rowe-Halpern, Senior Counsel, Environmental Enforcement Section, ENRD. The Lead EPA Case Attorney is Margaret Coulson, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, D.C. 20460. The EPA has asserted authority over the subject facilities through EPA Regions 3, 8, and 9, as described below.
State of Montana. The State of Montana appears in this action through the Montana Department of Environmental Quality ("MT DEQ") and the Montana Attorney General's Office. Lead counsel for the State of Montana is Annika Hedstrom, Assistant Attorney General, Environmental Bureau, Montana Attorney General's Office, 215 North Sanders, Helena, Montana 59601. Montana is a co-plaintiff with respect to the Ridgecrest Copper-Molybdenum Mine facility located in Granite County, Montana, and the Gallatin Chemical Works facility located in Gallatin County, Montana. MT DEQ maintains regulatory authority over these facilities under state environmental law and coordinates with EPA Region 8 in oversight of remediation activities.
State of Nevada. The State of Nevada appears in this action through the Division of Environmental Protection ("NV DEP"), a division within the Nevada Department of Conservation and Natural Resources, and the Nevada Attorney General's Office. Lead counsel for the State of Nevada is Ricardo Fuentes, Deputy Attorney General, Nevada Attorney General's Office, 100 North Carson Street, Carson City, Nevada 89701. Nevada is a co-plaintiff with respect to the Bonanza Creek Gold Mine facility located in Lander County, Nevada. NV DEP maintains regulatory authority over the facility under state environmental law and coordinates with EPA Region 9 in oversight of remediation activities and compliance monitoring.
State of West Virginia. The State of West Virginia appears in this action through the Department of Environmental Protection ("WV DEP") and the West Virginia Attorney General's Office. Lead counsel for the State of West Virginia is Loretta May Hatcher, Assistant Attorney General, West Virginia Attorney General's Office, State Capitol Building 1, Room E-26, Charleston, West Virginia 25305. West Virginia is a co-plaintiff with respect to the Kanawha Bend Chemical Plant facility located in Kanawha County, West Virginia. WV DEP maintains regulatory authority over the facility under state environmental law and coordinates with EPA Region 3 in oversight of corrective action and compliance activities.
B. Defendants. Torchlight Mining Corp. ("TMC"). TMC is a corporation organized and existing under the Canada Business Corporations Act. TMC is dual-listed on the Toronto Stock Exchange (TSX: TRC) and the New York Stock Exchange (NYSE: TRC). TMC's principal executive offices are located at 1800 Bayfield Tower, 401 Bay Street, Toronto, Ontario M5H 2Y4, Canada. TMC maintains U.S. headquarters at 750 Copper Ridge Boulevard, Suite 200, Helena, Montana 59601. TMC is the ultimate parent entity of all other Defendants in this action and exercises operational and financial control over its subsidiaries' activities in the United States. TMC is a diversified mining and specialty chemicals company with operations in North America, South America, and Africa.
Torchlight Mining (U.S.) Inc. ("TM(US)"). TM(US) is a corporation organized and existing under the laws of the State of Delaware, with Employer Identification Number ("EIN") 83-2047156. TM(US) is a wholly owned subsidiary of TMC and serves as the direct operating entity for TMC's mining operations in the United States. TM(US) maintains its principal offices at the same Helena, Montana address as TMC's U.S. headquarters.
Torchlight Specialty Chemicals, Inc. ("TSC"). TSC is a corporation organized and existing under the laws of the State of Delaware, with EIN 47-3819204. TSC is wholly owned by TMC through TM(US) and is the operator of the Gallatin Chemical Works facility in Belgrade, Montana, and the Kanawha Bend Chemical Plant in Institute, West Virginia. TSC manufactures specialty chemicals, including flotation reagents, sodium xanthate, and dithiophosphate collectors, for use in mining and mineral processing operations.
Ridgecrest Mine Holdings, LLC ("RMH"). RMH is a limited liability company organized and existing under the laws of the State of Montana, filed with the Montana Secretary of State under ID No. E1042738. RMH is wholly owned by TM(US) and holds real property and mineral rights at the Ridgecrest Copper-Molybdenum Mine in Granite County, Montana. RMH is the titled owner of the approximately 8,700 acres of controlled property comprising the Ridgecrest Mine site.
Bonanza Creek Mining, LLC ("BCM"). BCM is a limited liability company organized and existing under the laws of the State of Nevada, filed with the Nevada Secretary of State under Entity No. E0518294731. BCM is wholly owned by TM(US) and holds real property, mineral rights, and water rights at the Bonanza Creek Gold Mine in Lander County, Nevada. BCM is the titled owner of the approximately 12,400 acres of controlled property comprising the Bonanza Creek Mine site.
IV. DESCRIPTION OF THE SITES AND ALLEGED VIOLATIONS
A. Ridgecrest Copper-Molybdenum Mine (Granite County, Montana)
The Ridgecrest Copper-Molybdenum Mine ("Ridgecrest Mine" or "Ridgecrest") is located at 14200 Ridgecrest Mine Road, Drummond, Granite County, Montana 59832. The facility encompasses an approximately 3,200-acre mine footprint within an approximately 8,700-acre total controlled property area owned by RMH. The site is situated in a mountainous terrain at approximately 5,400 to 7,200 feet elevation in the Flint Creek Range of western Montana.
The Ridgecrest Mine is an open-pit copper-molybdenum mine that has been operational since 1978. Active mining operations at the site ceased on December 31, 2019, and the facility is currently in the closure and reclamation phase. The mine's principal features include a large open pit approximately 1,200 feet deep, an approximately 425-acre tailings impoundment, multiple waste rock dumps containing an estimated 680 million tons of sulfide-bearing waste rock, a former solvent-extraction/electrowinning ("SX/EW") circuit, ore processing infrastructure, and ancillary buildings and roads. The tailings impoundment contains an estimated 450 million tons of fine-grained mill tailings with residual sulfide mineral content.
The Ridgecrest Mine has been proposed for listing on the National Priorities List ("NPL") under CERCLA. It is currently being addressed under an Administrative Order on Consent ("AOC"), Docket No. CERCLA-08-2022-0039, executed September 15, 2022, between EPA Region 8 and Defendants TMC, TM(US), and RMH. EPA Region 8 serves as the lead regulatory office for the site. The EPA Project Coordinator for the Ridgecrest Mine is Dr. Samuel Tesfaye of EPA Region 8.
The principal contaminants of concern at the Ridgecrest Mine include acid mine drainage ("AMD") emanating from waste rock dumps and the open pit, which contains elevated concentrations of dissolved metals and other constituents. Monitoring data from the period of January 2021 through June 2024 reflects the following average and maximum constituent concentrations in AMD seepage reaching Flint Creek and its tributaries:
• Dissolved copper: Average concentration of 47 mg/L, which exceeds the Montana chronic aquatic life standard of 0.0087 mg/L by a factor of approximately 5,400.
• Molybdenum: Average concentration of 1.2 mg/L.
• Selenium: Average concentration of 0.082 mg/L.
• Sulfate: Average concentration of 3,400 mg/L.
In addition, the approximately 425-acre tailings impoundment has been documented to have active seepage through its embankment dam and foundation, with contaminated seepage reaching Flint Creek at multiple identified seep locations along the downstream toe of the impoundment. This seepage has been documented through piezometric monitoring, seep surveys, and water quality sampling conducted by EPA contractors and by Defendants' consultants.
The Complaint alleges the following violations at the Ridgecrest Mine:
• CWA § 301, 33 U.S.C. § 1311: Unpermitted discharges of pollutants from the Ridgecrest Mine to waters of the United States, including Flint Creek and its tributaries, through point sources including but not limited to AMD seeps from waste rock dumps and tailings impoundment seepage, without authorization under a National Pollutant Discharge Elimination System ("NPDES") permit or Montana Pollutant Discharge Elimination System ("MPDES") permit.
• RCRA § 3004, 42 U.S.C. § 6924: Mismanagement of hazardous waste generated by the solvent-extraction/electrowinning circuit, including spent electrolyte solutions and organic solvent residues that exhibit the characteristics of hazardous waste under 40 C.F.R. Part 261, Subpart C.
• CERCLA § 107, 42 U.S.C. § 9607: Cost recovery for $14.3 million in EPA removal actions conducted at the Ridgecrest Mine between January 2021 and May 2023. These removal actions included emergency stabilization of AMD seeps discharging to Flint Creek, construction of temporary containment and treatment systems, and removal and consolidation of improperly stored SX/EW process wastes.
B. Gallatin Chemical Works (Gallatin County, Montana)
The Gallatin Chemical Works ("Gallatin" or "GCW") is located at 8800 Industrial Park Lane, Belgrade, Gallatin County, Montana 59714. The facility encompasses approximately 145 acres in a light-industrial area east of Belgrade, Montana, adjacent to the East Gallatin River. The site has been in operation since 1993 and is currently active.
The Gallatin Chemical Works is a specialty chemical manufacturing facility operated by TSC. The facility manufactures flotation reagents, sodium xanthate, dithiophosphate collectors, and related specialty chemicals used in mineral processing and mining operations. The manufacturing processes at the facility involve the use and storage of carbon disulfide ("CS₂"), sodium hydroxide, sulfur, various alcohols, and other chemical feedstocks.
The Gallatin Chemical Works is a RCRA Corrective Action facility operating under EPA Permit No. MTD098712456. EPA Region 8 serves as the lead regulatory office for the site. Three solid waste management units ("SWMUs") have been identified at the facility: SWMU-1 (a former waste solvent storage area), SWMU-2 (a former chemical waste lagoon), and SWMU-3 (a contaminated drainage ditch and subsurface soils adjacent to the main process building).
The principal contaminants of concern at the Gallatin Chemical Works include:
• Carbon disulfide (CS₂): Detected in groundwater at a maximum concentration of 890 µg/L, compared to the federal Maximum Contaminant Level ("MCL") of 10 µg/L — representing an exceedance by a factor of approximately 89.
• Xanthate decomposition products: Detected in groundwater and soil at the three identified SWMUs.
• Volatile organic compounds (VOCs): Including toluene and xylene, detected in subsurface soils at concentrations exceeding Montana Department of Environmental Quality risk-based screening levels.
The Complaint alleges the following violations at the Gallatin Chemical Works:
• RCRA §§ 3004 and 3005, 42 U.S.C. §§ 6924 and 6925: Operation of an unpermitted hazardous-waste storage unit at the facility; and failure to perform corrective action at the three identified SWMUs as required by the facility's RCRA permit and applicable EPA orders.
• CWA § 301, 33 U.S.C. § 1311: Fourteen (14) exceedances of MPDES permit effluent limits for CS₂ and total suspended solids ("TSS") at the facility's permitted discharge point during the period from January 2021 through June 2024.
C. Bonanza Creek Gold Mine (Lander County, Nevada)
The Bonanza Creek Gold Mine ("Bonanza Creek" or "BCGM") is located at County Road 447, Mile Marker 12, Lander County, Nevada 89820, approximately twenty-eight (28) miles south of the town of Battle Mountain, Nevada. The facility encompasses an approximately 5,600-acre mine footprint within an approximately 12,400-acre total controlled property area owned by BCM. The site is situated in the northern Nevada Basin and Range Province, in an arid, high-desert environment at approximately 4,800 to 5,600 feet elevation.
The Bonanza Creek Gold Mine is an open-pit, heap-leach gold mine that has been operational since 2001. Active mining operations are ongoing at the facility. The mine's principal features include multiple open pits, an approximately 380-acre heap-leach pad, cyanide solution ponds (including a pregnant solution pond and a barren solution pond), a carbon-in-column gold recovery plant, waste rock dumps, and ancillary infrastructure.
The Bonanza Creek Gold Mine is subject to a combined RCRA Corrective Action and CWA enforcement action. EPA Region 9 serves as the lead regulatory office for the site. The EPA Project Coordinator for the Bonanza Creek Mine is Jennifer Whitfield of EPA Region 9.
The principal contaminants of concern at the Bonanza Creek Gold Mine include:
• Weak acid dissociable (WAD) cyanide: Detected in process solution discharges at a concentration of 0.62 mg/L, compared to the applicable discharge limit of 0.022 mg/L — an exceedance by a factor of approximately 28.
• Mercury: Detected in process solution and pit-lake water at an average concentration of 12.4 µg/L, compared to the applicable water quality criterion of 0.77 µg/L — an exceedance by a factor of approximately 16.
• Selenium: Detected at elevated concentrations in pit-lake water.
The Complaint alleges the following violations at the Bonanza Creek Gold Mine:
• CWA § 301, 33 U.S.C. § 1311: Three unpermitted discharges of cyanide-bearing process solution from the heap-leach pad to an ephemeral tributary of the Reese River, caused by torn synthetic liner segments in the heap-leach pad containment system. The three documented discharge events occurred on March 17, 2022; August 9, 2022; and January 22, 2023.
• RCRA § 3004, 42 U.S.C. § 6924: Mismanagement of spent heap-leach ore that exhibits the characteristics of hazardous waste, including the toxicity characteristic for cyanide and mercury.
• Migratory Bird Treaty Act, 16 U.S.C. §§ 703–712: Seventeen (17) documented avian mortalities at cyanide solution ponds at the Bonanza Creek Mine during the period from 2021 through 2023, including mortalities of migratory waterfowl and raptors. The documented species include American avocets, northern shovelers, common goldeneyes, and a single golden eagle.
D. Kanawha Bend Chemical Plant (Kanawha County, West Virginia)
The Kanawha Bend Chemical Plant ("Kanawha Bend" or "KBCP") is located at 2200 Chemical Valley Road, Institute, Kanawha County, West Virginia 25112. The facility encompasses approximately 78 acres within the Kanawha Valley's historic "Chemical Valley" industrial corridor, along the Kanawha River. The site has been in operation since 1985 and is currently active.
The Kanawha Bend Chemical Plant is a chemical manufacturing facility operated by TSC. The facility manufactures leaching agents and performs sulfuric acid regeneration for use in mining and industrial applications. The facility is situated in a densely populated area, with the unincorporated community of Institute and the city of South Charleston in close proximity.
The Kanawha Bend Chemical Plant is a RCRA Corrective Action facility operating under EPA Permit No. WVD048823915. EPA Region 3 serves as the lead regulatory office for the site.
The principal contaminants of concern at the Kanawha Bend Chemical Plant include:
• Sulfuric acid residuals: Soil pH values as low as 1.8 have been documented in subsurface soils near the former waste lagoon area, indicating severe acid contamination.
• Heavy metals: Lead has been detected at a maximum concentration of 4,200 mg/kg in subsurface soils near the former waste lagoon, and arsenic has been detected at a maximum concentration of 890 mg/kg in the same area.
• Dense non-aqueous phase liquid (DNAPL): Chlorinated solvents, including trichloroethylene ("TCE") and 1,1,1-trichloroethane ("TCA"), have been detected as DNAPL in the fractured bedrock aquifer beneath the site.
The Complaint alleges the following violations at the Kanawha Bend Chemical Plant:
• RCRA §§ 3004 and 3005, 42 U.S.C. §§ 6924 and 6925: Failure to close a former surface impoundment used for management of hazardous waste in accordance with RCRA closure requirements; and unpermitted treatment of listed hazardous wastes, specifically K062 (spent pickle liquor from steel finishing operations) and D002 (corrosive hazardous waste), at the facility without authorization under a RCRA Part B permit.
• CERCLA § 107, 42 U.S.C. § 9607: Cost recovery for $3.8 million in EPA emergency response actions conducted in June 2020 following a sulfuric acid release from a ruptured above-ground storage tank at the facility. The released sulfuric acid migrated overland to an unnamed tributary of the Kanawha River, resulting in a fish kill and requiring emergency containment, neutralization, and remediation by EPA emergency response contractors.
V. SUMMARY OF THE PROPOSED CONSENT DECREE
The proposed Consent Decree, attached hereto as Exhibit 1, sets forth comprehensive obligations of the Defendants with respect to remediation, civil penalties, reimbursement of government costs, supplemental environmental projects, financial assurance, independent monitoring, stipulated penalties, and other provisions. The following is a summary of the principal terms of the Consent Decree.
A. Remedial Actions
The Consent Decree requires Defendants to design, implement, and complete remedial actions at all four subject facilities. The scope, standards, and schedules for these remedial actions are set forth in detail in the Consent Decree and its appendices, including site-specific Remedial Action Work Plans, Corrective Measures Studies, Sampling and Monitoring Plans, and associated technical documents.
The negotiated remediation costs, expressed in nominal terms and in net present value ("NPV") at a three percent (3%) discount rate, are as follows:
With respect to the Ridgecrest Mine, the negotiated remediation cost of $198.6 million was the product of extensive technical negotiation between the parties. Defendants, through their environmental consultants at Pinnacle Creek Environmental, LLC, estimated the total cost of remediation at $187.5 million. The United States, through its technical consultants at Cascade Geosciences, Inc., estimated the total cost of remediation at $224.0 million. The negotiated figure of $198.6 million represents a reasonable compromise between these two estimates, taking into account uncertainties in cost estimation, the scope and duration of long-term operations and maintenance, and contingency factors.
The Consent Decree establishes the following key remediation deadlines:
1. Ridgecrest Remedial Action Work Plan submission: December 14, 2025. Defendants shall submit to EPA and MT DEQ a comprehensive Remedial Action Work Plan for the Ridgecrest Mine, including preliminary engineering designs for Bramwell Group and treatment systems, tailings impoundment stabilization measures, and waste rock management plans.
2. Gallatin Corrective Measures Study submission: June 14, 2026. Defendants shall submit to EPA and MT DEQ a Corrective Measures Study for the Gallatin Chemical Works, evaluating remedial alternatives for the three identified SWMUs and groundwater contamination.
3. Bonanza Creek liner repair and containment commencement: June 14, 2026. Defendants shall commence repair and replacement of the damaged synthetic liner segments on the heap-leach pad and construction of supplemental containment and leak detection systems at the Bonanza Creek Gold Mine.
4. Kanawha Bend interim stabilization measures completion: December 14, 2026. Defendants shall complete interim stabilization measures at the Kanawha Bend Chemical Plant, including excavation and consolidation of the most heavily contaminated soils near the former waste lagoon and installation of a temporary groundwater extraction and treatment system to address DNAPL migration.
5. Ridgecrest remedy construction commencement: June 14, 2027. Defendants shall commence construction of the approved remedial systems at the Ridgecrest Mine, including a permanent water treatment plant for AMD and a tailings impoundment cover system.
6. Ridgecrest 30-year remediation obligation conclusion: June 14, 2055. Defendants' long-term remediation obligations at the Ridgecrest Mine, including operations and maintenance of the water treatment plant and long-term monitoring, shall continue for a period of thirty (30) years from the commencement of remedy construction.
B. Civil Penalties
The Consent Decree requires Defendants to pay a total civil penalty of $31.5 million. The civil penalty is allocated among the four subject facilities as follows:
The civil penalty shall be paid in four (4) equal quarterly installments of $7,875,000.00 each. The first installment shall be due within thirty (30) days of the Effective Date of the Consent Decree (i.e., on or before July 14, 2025, assuming an Effective Date of June 14, 2025). Subsequent installments shall be due at twelve (12), twenty-four (24), and thirty-six (36) months after entry of the Consent Decree. Payments shall be made by electronic funds transfer to accounts designated by the United States Department of Justice and the respective co-plaintiff States, in proportions specified in Appendix F to the Consent Decree.
C. EPA Past-Costs Reimbursement
The Consent Decree requires Defendants to reimburse the United States for a total of $18.1 million in past response costs incurred by EPA pursuant to CERCLA § 107, 42 U.S.C. § 9607. These costs are allocated as follows:
• Ridgecrest Mine: $14.3 million, representing EPA's documented costs for removal actions conducted at the Ridgecrest Mine between January 2021 and May 2023. These removal actions included emergency stabilization of AMD seeps, construction of temporary containment and water treatment systems, removal and proper disposal of improperly stored SX/EW process wastes, and associated oversight and contractor costs.
• Kanawha Bend Chemical Plant: $3.8 million, representing EPA's documented costs for the emergency response action conducted in June 2020 following the sulfuric acid release from a ruptured above-ground storage tank. The emergency response included containment and neutralization of the acid release, remediation of the affected unnamed tributary of the Kanawha River, ecological damage assessment, and associated oversight and contractor costs.
Payment of the past-costs reimbursement shall be made in a single lump-sum payment within sixty (60) days of the Effective Date of the Consent Decree, by electronic funds transfer to the EPA Hazardous Substance Superfund, in accordance with procedures specified in the Consent Decree.
D. Supplemental Environmental Projects (SEPs)
The Consent Decree requires Defendants to fund and implement three Supplemental Environmental Projects ("SEPs") totaling $12.0 million. These SEPs are designed to provide tangible environmental and public health benefits to communities affected by Defendants' operations and the alleged violations. The three SEPs are described below.
1. Flint Creek Watershed Restoration Project (Montana) — $5.5 million. Defendants shall fund and implement a comprehensive watershed restoration project along approximately twelve (12) miles of Flint Creek downstream of the Ridgecrest Mine in Granite County, Montana. The project will include stream-bank stabilization using bioengineering techniques, riparian zone replanting with native vegetation species, removal of fish-passage barriers at three identified locations, and installation of in-stream habitat improvement structures. The project will be implemented in coordination with the Montana Department of Fish, Wildlife and Parks and the Flint Creek Watershed Council. A detailed description and budget for this SEP are set forth in Appendix G-1 to the Consent Decree.
2. Battle Mountain Community Drinking Water Improvement Project (Nevada) — $3.5 million. Defendants shall fund the upgrade of the municipal water treatment facility serving the town of Battle Mountain, Lander County, Nevada. The project will include installation of a new granular activated carbon filtration system, replacement of aging distribution infrastructure, and installation of real-time water quality monitoring equipment at key points in the distribution system. The project will be implemented in coordination with the Lander County Water and Sewer District. A detailed description and budget for this SEP are set forth in Appendix G-2 to the Consent Decree.
3. Institute Community Air Quality Monitoring Network (West Virginia) — $3.0 million. Defendants shall fund the installation and ten (10)-year operation of six (6) ambient air quality monitoring stations in the Institute and South Charleston area of Kanawha County, West Virginia. The monitoring stations will be equipped with continuous monitors for sulfur dioxide, particulate matter (PM₂.₅ and PM₁₀), and volatile organic compounds, and will transmit real-time data to a publicly accessible web platform. The monitoring network will be operated in coordination with WV DEP and the Kanawha-Charleston Health Department. A detailed description and budget for this SEP are set forth in Appendix G-3 to the Consent Decree.
E. Financial Assurance
The Consent Decree requires Defendants to post financial assurance totaling $245.0 million to ensure the availability of funds for the implementation and completion of all remedial obligations under the Consent Decree. The financial assurance package consists of two components:
1. Surety Bond — $165.0 million. Defendants shall obtain and maintain a surety bond in the amount of $165,000,000.00, issued by Ironbark Surety of America, Inc. The bond has been assigned Bond No. ISA-ENV-2025-08934. The surety bond carries an annual premium of 1.85%, equivalent to approximately $3,052,500.00 per year, payable by Defendants. The surety bond shall remain in full force and effect until such time as EPA certifies that all remedial obligations at all four facilities have been satisfactorily completed, or until replaced by an alternative form of financial assurance approved by EPA.
2. Remediation Trust Fund — $80.0 million. Defendants shall establish and fund a remediation trust fund with an initial deposit of $80,000,000.00. The trust fund shall be held and administered by Larchfield Trust Company, N.A., pursuant to Trust Agreement No. LTC-REM-2025-1177. The designated trust officer is David Henshaw, Senior Vice President, Environmental Trust Services, Larchfield Trust Company, N.A. The trust fund shall be used exclusively for the implementation of remedial actions required by the Consent Decree. Disbursements from the trust fund shall be made upon approval of EPA, in consultation with the applicable co-plaintiff State, and shall be documented in quarterly trust fund reports submitted to all parties and to the Court.
The deadline for Defendants to establish the Remediation Trust Fund and post all financial assurance instruments is September 12, 2025 — ninety (90) days after the anticipated Effective Date of June 14, 2025.
F. Independent Environmental Monitor
The Consent Decree provides for the appointment of an independent third-party environmental monitor to oversee Defendants' compliance with the Consent Decree and to provide transparent reporting to the Court, the parties, and the public. The independent environmental monitor shall be Verdant Analytics, Inc., an environmental consulting firm headquartered in Portland, Oregon. The monitoring engagement shall be led by Dr. Kamal Osei, Senior Managing Director of Verdant Analytics, Inc.
The independent environmental monitor shall perform the following functions:
• Conduct quarterly compliance audits of all four subject facilities, including inspections of remedial construction activities, review of monitoring data, and assessment of Defendants' adherence to schedules and performance standards set forth in the Consent Decree.
• Prepare and submit annual public reports summarizing compliance status, progress toward remediation milestones, monitoring results, and any identified areas of concern or noncompliance.
• Serve as a neutral technical resource to the Court in connection with any disputes arising under the Consent Decree.
The estimated costs of the independent environmental monitor are $4.8 million over the initial five (5)-year term of the monitoring engagement, or approximately $960,000 per year. These costs shall be borne by Defendants. The independent monitor's term may be extended by order of the Court upon motion by any party.
G. Stipulated Penalties
The Consent Decree contains a stipulated penalty provision designed to incentivize timely compliance by Defendants with all remedial and other obligations under the Consent Decree. The stipulated penalty schedule is as follows:
• $1,500 per day per violation for the first thirty (30) days of noncompliance with any requirement of the Consent Decree.
• $3,000 per day per violation for the thirty-first (31st) through sixtieth (60th) day of noncompliance.
• $5,500 per day per violation for each day of noncompliance beyond the sixtieth (60th) day.
Stipulated penalty deposits shall be held in escrow by Larchfield Trust Company, N.A., in a segregated account established for this purpose. Upon resolution of any stipulated penalty dispute, funds held in escrow shall be disbursed in accordance with the terms of the Consent Decree and any applicable orders of the Court.
H. Effective Date and Termination
The Effective Date of the Consent Decree shall be thirty (30) days after the date on which the Court enters the Consent Decree, as provided in Section IV of the Consent Decree. Based on the anticipated timeline set forth in Section VIII of this Motion, the parties anticipate that the Court will enter the Consent Decree on or about May 15, 2025, resulting in an anticipated Effective Date of June 14, 2025.
Termination of the Consent Decree shall occur on a site-by-site basis upon certification of completion by EPA and the independent environmental monitor, following satisfaction of all remedial obligations at the relevant facility. No site may be terminated from the Consent Decree sooner than five (5) years after the completion of all remedial construction at that site. The five-year post-construction monitoring period is intended to ensure the long-term effectiveness and protectiveness of the implemented remedies. Upon termination of all site-specific obligations, the Consent Decree shall be terminated in its entirety by order of the Court, upon joint motion of the parties.
I. Force Majeure and Dispute Resolution
Force Majeure. The Consent Decree contains a standard EPA force-majeure provision excusing Defendants from stipulated penalties for delays in performance caused by circumstances beyond their reasonable control, including but not limited to acts of God, war, civil unrest, labor disputes not within Defendants' control, and governmental actions. Defendants are required to provide written notice to EPA and the applicable co-plaintiff State within fifteen (15) days of the occurrence of any event claimed to constitute force majeure, together with a description of the event, its anticipated duration, the specific obligations affected, and the measures Defendants are taking to mitigate the delay. Disputes concerning force majeure claims shall be resolved through the Consent Decree's dispute-resolution provision.
Dispute Resolution. The Consent Decree establishes a three-tier dispute resolution mechanism designed to promote efficient resolution of disputes without unnecessary resort to judicial intervention:
• Tier 1 — Informal Negotiation: The parties shall engage in informal negotiation for a period of thirty (30) days following written notice of a dispute.
• Tier 2 — Formal EPA Decision: If informal negotiation does not resolve the dispute within thirty (30) days, EPA shall issue a formal written decision within thirty (30) days thereafter.
• Tier 3 — Judicial Review: Any party may petition the Court for judicial review of EPA's formal decision within thirty (30) days of the date of that decision. The standard of review shall be arbitrary and capricious for EPA decisions on matters within EPA's discretion, and de novo for all other matters.
J. Aggregate Financial Summary
The total aggregate nominal financial obligation of Defendants under the proposed Consent Decree is $409.9 million, consisting of the following components:
This total does not include the costs of the financial assurance instruments (surety bond premiums and trust fund administration fees), which will be borne by Defendants as additional costs of compliance.
VI. LEGAL STANDARD FOR LODGING AND ENTRY OF A CONSENT DECREE
Under 28 U.S.C. § 7003(d), a consent decree proposed to resolve claims under the Clean Water Act, the Resource Conservation and Recovery Act, or the Comprehensive Environmental Response, Compensation, and Liability Act must be lodged with the court and made available for public comment for a period of at least thirty (30) days before the court may enter the decree. This requirement ensures that the public has an opportunity to review and comment on proposed settlements of significant environmental enforcement actions before they become binding judicial orders.
The role of the court in reviewing a proposed consent decree is to determine whether the decree is "fair, reasonable, and consistent with the objectives of the statutes on which the complaint was based." United States v. Montrose Chem. Corp. of Cal., 50 F.3d 741, 746 (9th Cir. 1995); see also United States v. Cannons Eng'g Corp., 899 F.2d 79, 84 (1st Cir. 1990) (consent decree must be "fair, adequate, and reasonable"). The Ninth Circuit has consistently held that this standard requires the court to evaluate the decree in light of the factual and legal circumstances of the case, the nature and extent of the violations, the relief obtained, and the potential risks and costs of continued litigation. See Montrose, 50 F.3d at 746-47; United States v. Oregon, 913 F.2d 576, 581 (9th Cir. 1990).
The consent decree need not represent the best possible outcome for either side. As the First Circuit has observed, "[a] consent decree is a compromise; it embodies concessions that each side has made to achieve the settlement." Cannons Eng'g, 899 F.2d at 84. The Ninth Circuit has similarly held that a consent decree must fall "within the range of reasonableness" — that is, it must be a plausible resolution that a reasonable person could regard as fair and adequate in light of the circumstances. Montrose, 50 F.3d at 748.
Courts generally accord significant deference to the judgment of the United States in environmental enforcement settlements, recognizing that the government "possesses 'significant expertise in the environmental area' and 'has a thorough understanding of the scientific and technical aspects of these cases.'" Cannons Eng'g, 899 F.2d at 84 (quoting United States v. Seymour Recycling Corp., 554 F. Supp. 1334, 1338 (S.D. Ind. 1982)). This deference reflects the practical reality that the government is in the best position to evaluate the strength of its claims, the risks of continued litigation, and the adequacy of the proposed relief. See also United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1436 (6th Cir. 1991). The court's role is not to second-guess the government's litigation strategy or to substitute its own judgment for that of the parties, but rather to ensure that the proposed decree is not arbitrary, capricious, or contrary to law. Montrose, 50 F.3d at 746.
The District of Montana has applied these standards in evaluating proposed consent decrees in environmental enforcement actions. See, e.g., United States v. ASARCO Inc., No. CV 89-039-BU-PGH, 1993 WL 767584, at *3-4 (D. Mont. Sept. 27, 1993) (applying "fair, reasonable, and consistent with statutory objectives" standard). The parties submit that the proposed Consent Decree in this case satisfies this standard, as demonstrated in Section VII below.
VII. THE PROPOSED CONSENT DECREE SATISFIES THE LEGAL STANDARD
A. Fairness. The proposed Consent Decree is fair because it is the product of extensive, arm's-length negotiations conducted over a period of approximately seven months, from the agreement in principle reached on July 30, 2024, through the final execution of the Consent Decree in February 2025. The negotiations included court-ordered mediation before Magistrate Judge Clara Finnegan, who conducted two formal mediation sessions and provided guidance that facilitated the parties' discussions. The negotiation process also included four rounds of draft exchanges and redlines, as well as a full-day in-person negotiation session on February 3, 2025, in Helena, Montana, attended by lead counsel for all parties, EPA regional representatives, and state agency representatives. At no point during the negotiations did any party have undue leverage or advantage over any other party. The negotiations were conducted in good faith by all parties, with full access to relevant technical and legal information.
All parties were represented by experienced counsel throughout the negotiation process. The United States was represented by the Department of Justice, Environment and Natural Resources Division, and by attorneys from the EPA Office of Enforcement and Compliance Assurance. The three co-plaintiff States were each represented by their respective Attorney General's offices. Defendants were represented by Calderwood & Harkness LLP, a national law firm with extensive experience in environmental enforcement matters, and by local counsel in each of the three affected states. All parties were additionally supported by qualified technical experts: Defendants retained Pinnacle Creek Environmental, LLC, a nationally recognized environmental consulting firm, to provide technical analysis of site conditions and remediation cost estimates, while the United States retained Cascade Geosciences, Inc. to provide independent technical evaluation of the facilities and remediation alternatives.
The civil penalty of $31.5 million reflects the gravity of the violations, the economic benefit of noncompliance, Defendants' history of violations, Defendants' ability to pay, and the other factors set forth in EPA's civil penalty policies, including the Clean Water Act Section 309(g) penalty policy and the RCRA Civil Penalty Policy. The penalty amount was determined through a rigorous analysis that considered the duration and severity of the violations at each of the four facilities, as well as the environmental harm caused by the violations. The penalty is substantial and reflects the seriousness with which the United States and the co-plaintiff States regard the alleged violations.
The remediation obligations are proportionate to the nature and extent of contamination at each site. The remediation cost estimates were developed through detailed technical analyses, including remedial investigation data, feasibility studies, and cost estimates prepared by both Defendants' and the government's technical consultants. The 30-year remediation period for the Ridgecrest Mine reflects the complexity and scale of the contamination at that site, including the ongoing generation of acid mine drainage from hundreds of millions of tons of sulfide-bearing waste rock and the need for a permanent water treatment solution. The shorter remediation periods for the other three facilities reflect the comparatively more manageable scope of contamination at those sites.
B. Reasonableness. The proposed Consent Decree is reasonable because it achieves a comprehensive resolution of complex, multi-statute environmental claims at four facilities in three states, while providing meaningful environmental protection and public health benefits. The total nominal financial obligation of $409.9 million is significant by any measure and reflects the seriousness of the alleged violations and the scope of the required remediation.
The negotiated Ridgecrest remediation cost of $198.6 million represents a reasonable compromise between TMC's estimate of $187.5 million and EPA's estimate of $224.0 million. The negotiated figure falls within the range defined by the parties' respective estimates and was reached after extensive technical discussions concerning the scope of remediation, the design and cost of a permanent water treatment plant, the approach to tailings impoundment closure, and the duration and cost of long-term operations and maintenance. The compromise appropriately accounts for the inherent uncertainty in estimating remediation costs for a large, complex mining site over a 30-year period.
The financial assurance package of $245.0 million — consisting of a $165.0 million surety bond and an $80.0 million remediation trust fund — ensures that sufficient resources will be available to implement the required remedies even in the event of Defendants' financial distress, bankruptcy, or corporate reorganization. The financial assurance requirements are consistent with EPA's financial assurance policies and with the requirements of RCRA § 3004(t), 42 U.S.C. § 6924(t), and CERCLA § 108, 42 U.S.C. § 9608.
The three Supplemental Environmental Projects, totaling $12.0 million, provide tangible, measurable environmental and public health benefits to communities directly affected by Defendants' operations. The Flint Creek Watershed Restoration Project will restore degraded aquatic and riparian habitat downstream of the Ridgecrest Mine. The Battle Mountain Community Drinking Water Improvement Project will improve the quality and reliability of drinking water for a community located near the Bonanza Creek Mine. The Institute Community Air Quality Monitoring Network will provide real-time air quality data to a community located adjacent to the Kanawha Bend Chemical Plant. Each SEP is directly linked to the environmental harm alleged in the Complaint and is consistent with EPA's Supplemental Environmental Projects Policy.
The appointment of an independent environmental monitor adds a layer of transparency and accountability that serves both the public interest and the interests of the parties. Quarterly compliance audits and annual public reports will ensure that Defendants' compliance with the Consent Decree is subject to ongoing, independent oversight.
C. Consistency with Statutory Objectives
The proposed Consent Decree is consistent with the objectives of the environmental statutes under which the claims in this action were brought.
The CWA's objective of restoring and maintaining the chemical, physical, and biological integrity of the Nation's waters, 33 U.S.C. § 1251(a), is directly served by the remediation of acid mine drainage at the Ridgecrest Mine, which will address the discharge of dissolved copper, molybdenum, selenium, and sulfate to Flint Creek; the remediation of cyanide and mercury contamination at the Bonanza Creek Mine, which will prevent future discharges of process solution to the Reese River watershed; and the resolution of effluent limit exceedances at the Gallatin Chemical Works.
The RCRA objectives of protecting human health and the environment from the hazards posed by the treatment, storage, and disposal of hazardous waste, 42 U.S.C. § 6902(a), are served by the corrective action requirements at all four facilities. The Consent Decree requires Defendants to investigate, characterize, and remediate contamination at identified SWMUs and areas of concern at each facility, and to bring their hazardous waste management practices into compliance with applicable RCRA requirements.
The CERCLA cost-recovery objectives are served by the reimbursement of $18.1 million in EPA past response costs, representing documented expenditures for removal actions at the Ridgecrest Mine and emergency response actions at the Kanawha Bend Chemical Plant. The reimbursement ensures that the costs of responding to releases of hazardous substances are borne by the responsible parties, consistent with CERCLA's "polluter pays" principle.
Finally, the concerns raised under the Migratory Bird Treaty Act with respect to avian mortalities at the Bonanza Creek Gold Mine are addressed through remedial measures required by the Consent Decree, including enhanced netting and deterrent systems at cyanide solution ponds, reduction of WAD cyanide concentrations in process solution, and ongoing monitoring for avian use of process solution facilities.
VIII. REQUEST FOR PUBLIC COMMENT PERIOD
Pursuant to 28 U.S.C. § 7003(d), the parties jointly request that the Court lodge the proposed Consent Decree and direct the publication of public notice in the Federal Register, thereby initiating a thirty (30)-day public comment period. The publication of notice in the Federal Register will inform the public of the existence and terms of the proposed Consent Decree and provide an opportunity for interested persons and organizations to submit written comments on the proposed settlement.
The parties propose the following timeline for the public comment period and subsequent proceedings:
• Public Comment Period: February 19, 2025, through March 21, 2025 (30 days).
• Response to Public Comments: Following the close of the public comment period, the United States will compile and review all public comments received. The United States will then file a motion for entry of the Consent Decree, together with a response to any public comments received, addressing the substance of the comments and explaining any modifications made to the Consent Decree in response to the comments.
• Target Date for Hearing: April 28, 2025. The parties request that the Court schedule a hearing on the motion for entry of the Consent Decree at or around this date, to allow sufficient time for the United States to compile and respond to public comments.
• Target Date for Entry of Consent Decree: May 15, 2025. The parties respectfully request that the Court enter the Consent Decree at or around this date, assuming no material objections are raised during the public comment period that necessitate further negotiations or modifications to the Consent Decree.
The parties note that notice of the proposed Consent Decree will also be published in newspapers of general circulation in the communities near each of the four subject facilities, consistent with EPA's practice of providing broad public notice of significant environmental enforcement settlements. Specifically, notice will be published in the Missoulian (Missoula, Montana), the Belgrade News (Belgrade, Montana), the Battle Mountain Bugle (Battle Mountain, Nevada), and the Charleston Gazette-Mail (Charleston, West Virginia).
IX. CONCLUSION AND PRAYER FOR RELIEF
For the foregoing reasons, the United States of America, the States of Montana, Nevada, and West Virginia, and Defendants Torchlight Mining Corp., Torchlight Mining (U.S.) Inc., Torchlight Specialty Chemicals, Inc., Ridgecrest Mine Holdings, LLC, and Bonanza Creek Mining, LLC, jointly and respectfully request that this Court enter an Order:
1. Lodging the proposed Consent Decree, attached hereto as Exhibit 1;
2. Directing the publication of public notice in the Federal Register advising the public of the proposed Consent Decree and the opportunity to submit written comments;
3. Establishing a thirty (30)-day public comment period commencing upon publication of notice in the Federal Register;
4. Setting a hearing date following the close of the public comment period for consideration of the United States' anticipated motion for entry of the Consent Decree; and
5. Granting such other and further relief as the Court deems just and proper.
Respectfully submitted this 18th day of February, 2025.
X. SIGNATURE BLOCKS
For the United States of America
TODD KIM Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice
By: ________
PHILIP ORENSTEIN Lead Trial Attorney Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice 150 M Street NE Washington, D.C. 20002 Telephone: (202) 514-2219
Email: philip.orenstein@usdoj.gov
Date: ________
By: ________
KATHERINE ROWE-HALPERN Senior Counsel Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice 150 M Street NE Washington, D.C. 20002 Telephone: (202) 514-3784
Email: katherine.rowe-halpern@usdoj.gov
Date: ________
By: ________
MARGARET COULSON Lead EPA Case Attorney Office of Enforcement and Compliance Assurance U.S. Environmental Protection Agency 1200 Pennsylvania Avenue NW Washington, D.C. 20460 Telephone: (202) 564-6103
Email: coulson.margaret@epa.gov
Date: ________
For the State of Montana
AUSTIN KNUDSEN Attorney General of Montana
By: ________
ANNIKA HEDSTROM Assistant Attorney General Environmental Bureau Montana Attorney General's Office 215 North Sanders Helena, Montana 59601 Telephone: (406) 444-2026
Email: ahedstrom@mt.gov
Date: ________
For the State of Nevada
AARON D. FORD Attorney General of Nevada
By: ________
RICARDO FUENTES Deputy Attorney General Nevada Attorney General's Office 100 North Carson Street Carson City, Nevada 89701 Telephone: (775) 684-1236
Email: rfuentes@ag.nv.gov