1039-00003 · Torchlight Mining Corp · Court Filings & Lodging

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

PLAINTIFFS' MOTION FOR ENTRY OF CONSENT DECREE

Filed: April 7, 2025

The United States of America, by and through undersigned counsel Philip Orenstein, Trial Attorney, Environmental Enforcement Section, Environment and Natural Resources Division, U.S. Department of Justice, under the supervision of Katherine Rowe-Halpern, Senior Counsel, Environmental Enforcement Section, Environment and Natural Resources Division, U.S. Department of Justice, and on behalf of the United States of America, with the concurrence of co-plaintiffs the State of Montana (by Annika Hedstrom, Assistant Attorney General, Montana Attorney General's Office, Environmental Bureau), the State of Nevada (by Ricardo Fuentes, Deputy Attorney General, Nevada Attorney General's Office), and the State of West Virginia (by Loretta May Hatcher, Assistant Attorney General, West Virginia Attorney General's Office), and in coordination with the United States Environmental Protection Agency, Office of Enforcement and Compliance Assurance (Lead EPA Case Attorney Margaret Coulson), hereby files this Motion for Entry of Consent Decree. This Motion has been prepared in coordination with Calderwood & Harkness LLP (Harrison Wexford, Responsible Partner), counsel for all Defendants, who do not oppose entry of the Consent Decree.

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I. INTRODUCTION

The United States of America, joined by the States of Montana, Nevada, and West Virginia as co-plaintiffs, respectfully moves this Court pursuant to 28 U.S.C. § 7003(d) and the inherent authority of this Court to enter the Consent Decree ("Decree") lodged with this Court on February 19, 2025. The Decree resolves all claims asserted by Plaintiffs and Co-Plaintiffs in this action under Section 301 of the Clean Water Act ("CWA"), 33 U.S.C. § 1311; Sections 3004 and 3005 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6924, 6925; Sections 107 and 113 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9607, 9613; the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703 et seq.; and corresponding state environmental statutes of Montana, Nevada, and West Virginia.

The Consent Decree addresses alleged violations at four facilities operated by Defendant Torchlight Mining Corp. ("TMC") and its wholly owned U.S. subsidiaries — 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") — located in Montana, Nevada, and West Virginia. These facilities include the Ridgecrest Copper-Molybdenum Mine near Drummond, Montana; the Gallatin Chemical Works near Belgrade, Montana; the Bonanza Creek Gold Mine near Battle Mountain, Nevada; and the Kanawha Bend Chemical Plant near Institute, West Virginia. The Consent Decree imposes comprehensive remediation requirements, a substantial civil penalty, reimbursement of EPA past response costs, supplemental environmental projects, robust financial assurance, and independent environmental monitoring, for a total estimated financial obligation of $409.9 million (nominal) or $311.5 million (NPV/cash equivalent).

The Consent Decree was lodged with this Court on February 19, 2025, and notice of the lodging was published in the Federal Register on that same date, thereby initiating the 30-day public comment period required by 28 U.S.C. § 7003(d). The comment period closed on March 21, 2025. The United States received fourteen (14) public comments during the comment period and has carefully considered each of them. The United States responds to those comments herein and concludes that none provides a basis for modifying or declining to enter the Decree.

The Defendants consent to the entry of the Decree and do not oppose this Motion. Defendants' counsel, Calderwood & Harkness LLP, has been consulted regarding this filing and has confirmed that the Defendants affirmatively support the entry of the Consent Decree as lodged.

For the reasons set forth below, the Consent Decree is fair, reasonable, adequate, and consistent with the objectives of the CWA, RCRA, and CERCLA, and this Court should enter it.

II. BACKGROUND

A. The Parties

1. Plaintiffs and Co-Plaintiffs

Plaintiff the United States of America acts in this matter through the U.S. Environmental Protection Agency ("EPA"), Office of Enforcement and Compliance Assurance ("OECA"), with lead EPA case attorney Margaret Coulson, and through the U.S. Department of Justice ("DOJ"), Environment and Natural Resources Division ("ENRD"), Environmental Enforcement Section, with lead trial attorney Philip Orenstein under the supervision of Senior Counsel Katherine Rowe-Halpern. EPA Region 8 (headquartered in Denver, Colorado), which has regulatory jurisdiction over the States of Montana and Colorado, maintains oversight authority over the Ridgecrest and Gallatin facilities. EPA Region 9 (headquartered in San Francisco, California) exercises jurisdiction over the Bonanza Creek facility in Nevada. EPA Region 3 (headquartered in Philadelphia, Pennsylvania) exercises jurisdiction over the Kanawha Bend facility in West Virginia.

Co-Plaintiff the State of Montana brings its claims through the Montana Department of Environmental Quality ("Montana DEQ"), with representation by Annika Hedstrom, Assistant Attorney General, Montana Attorney General's Office, Environmental Bureau. Montana asserts claims related to both the Ridgecrest and Gallatin facilities located within its borders.

Co-Plaintiff the State of Nevada brings its claims through the Nevada Division of Environmental Protection ("NV DEP"), with representation by Ricardo Fuentes, Deputy Attorney General, Nevada Attorney General's Office. Nevada asserts claims related to the Bonanza Creek facility located in Lander County, Nevada.

Co-Plaintiff the State of West Virginia brings its claims through the West Virginia Department of Environmental Protection ("WV DEP"), with representation by Loretta May Hatcher, Assistant Attorney General, West Virginia Attorney General's Office. West Virginia asserts claims related to the Kanawha Bend facility located in Kanawha County, West Virginia.

2. Defendants. Defendant Torchlight Mining Corp. ("TMC") is a corporation incorporated under the Canada Business Corporations Act, R.S.C. 1985, c. C-44, and is dual-listed on the Toronto Stock Exchange ("TSX") and the New York Stock Exchange ("NYSE") under the ticker symbol TRC. TMC maintains its corporate headquarters at 1800 Bayfield Tower, 401 Bay Street, Toronto, Ontario M5H 2Y4, Canada, and its U.S. headquarters at 750 Copper Ridge Boulevard, Suite 200, Helena, Montana 59601. TMC is a diversified mining and specialty chemicals company with operations in Canada, the United States, Chile, and Australia, employing approximately 11,400 persons worldwide, of whom approximately 4,200 are based in the United States. For fiscal year 2023, TMC reported consolidated revenue of approximately C$4.82 billion (approximately US$3.56 billion), EBITDA of approximately C$1.14 billion, and a market capitalization of approximately C$7.6 billion. TMC is the ultimate parent company of each of the other Defendants in this action and, as such, bears joint and several liability for the obligations imposed by the Consent Decree.

Defendant Torchlight Mining (U.S.) Inc. ("TM(US)") is a corporation organized under the laws of the State of Delaware (Employer Identification Number: 83-2047156) and is wholly owned by TMC. TM(US) serves as the direct operator of TMC's U.S. mining operations, including the Ridgecrest Copper-Molybdenum Mine and the Bonanza Creek Gold Mine, and functions as the intermediate holding company for TMC's other U.S. subsidiaries. TM(US) is registered to do business in the States of Montana, Nevada, and West Virginia.

Defendant Torchlight Specialty Chemicals, Inc. ("TSC") is a corporation organized under the laws of the State of Delaware (Employer Identification Number: 47-3819204) and is wholly owned by TMC through TM(US). TSC operates the Gallatin Chemical Works in Belgrade, Montana, and the Kanawha Bend Chemical Plant in Institute, West Virginia. TSC manufactures flotation reagents, sodium xanthate, dithiophosphate collectors, leaching agents, and regenerated sulfuric acid at these two facilities.

Defendant Ridgecrest Mine Holdings, LLC ("RMH") is a limited liability company organized under the laws of the State of Montana (Montana Secretary of State Entity ID: E1042738) and is wholly owned by TM(US). RMH is the holder of the real property and mineral rights associated with the Ridgecrest Copper-Molybdenum Mine near Drummond, Granite County, Montana.

Defendant Bonanza Creek Mining, LLC ("BCM") is a limited liability company organized under the laws of the State of Nevada (Nevada Secretary of State Entity No.: E0518294731) and is wholly owned by TM(US). BCM is the holder of the real property, mineral rights, and water rights associated with the Bonanza Creek Gold Mine near Battle Mountain, Lander County, Nevada.

B. Procedural History

The enforcement action culminating in this Motion has proceeded through the following procedural milestones:

On September 12, 2023, EPA issued a comprehensive Notice of Violation ("NOV") to TMC, addressing violations of the CWA, RCRA, and CERCLA at all four facilities — the Ridgecrest Copper-Molybdenum Mine, the Gallatin Chemical Works, the Bonanza Creek Gold Mine, and the Kanawha Bend Chemical Plant. The NOV was issued jointly by EPA Regions 3, 8, and 9, reflecting the multi-jurisdictional scope of the alleged violations, and was served on TMC at its U.S. headquarters in Helena, Montana, with copies to each relevant state environmental agency.

On January 18, 2024, having been unable to reach a pre-litigation resolution, the United States filed its Complaint in this action, Civil Action No. 9:24-cv-00087-DWM, in the United States District Court for the District of Montana, Missoula Division, before the Honorable Donald W. Molloy, Senior U.S. District Judge. The Complaint alleged violations of Sections 301 and 309 of the CWA, 33 U.S.C. §§ 1311, 1319; Sections 3004 and 3005 of RCRA, 42 U.S.C. §§ 6924, 6925; Sections 107 and 113 of CERCLA, 42 U.S.C. §§ 9607, 9613; the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq.; and corresponding state statutes. The Complaint was filed on behalf of the United States, with the States of Montana, Nevada, and West Virginia joining as co-plaintiffs.

On March 5, 2024, TMC, on behalf of itself and all Defendant entities, filed its Answer to the Complaint, generally denying the material allegations and asserting various affirmative defenses, including statute-of-limitations defenses as to certain claims and challenges to the extent of contamination alleged by the Government.

On April 22, 2024, the parties entered into a Tolling Agreement, which was filed with the Court and so-ordered by Judge Molloy on April 25, 2024. The Tolling Agreement tolled the statute of limitations applicable to all claims asserted or that could be asserted in this action through December 31, 2025, thereby preserving the parties' rights while enabling settlement negotiations to proceed without the pressure of imminent limitations issues.

On May 15, 2024, pursuant to the Court's standing order on alternative dispute resolution, court-ordered mediation was conducted before Magistrate Judge Clara Finnegan. Although the mediation did not result in an immediate settlement, it substantially advanced the parties' understanding of the issues and narrowed the areas of disagreement, laying the groundwork for subsequent productive negotiations.

On July 30, 2024, following continued negotiations after the mediation and multiple exchanges of technical and legal memoranda, the parties reached an agreement in principle on the framework for a consent decree, including the general structure of the remediation obligations, the range of the civil penalty, the concept of supplemental environmental projects, and the establishment of financial assurance mechanisms and independent monitoring.

Beginning in the fall of 2024, the parties engaged in intensive drafting and negotiation of the consent decree text. The DOJ circulated the first draft consent decree on November 8, 2024. TMC, through its counsel at Calderwood & Harkness LLP, returned a comprehensive redline on December 16, 2024. The Government provided a counter-redline on January 14, 2025, and TMC submitted a second redline on January 24, 2025. These exchanges addressed numerous complex issues, including the specific remediation milestones, the scope and cost of remedial work plans, the allocation of the civil penalty among sites, the terms of financial assurance instruments, the selection and scope of authority of the independent environmental monitor, the stipulated penalty provisions, and the force majeure and dispute resolution mechanisms.

On February 3, 2025, the principal negotiators for all parties convened an in-person negotiation session in Washington, D.C., at which the remaining open issues were resolved and the parties finalized the substantially agreed text of the Consent Decree.

The execution version of the Consent Decree was circulated for signature beginning February 10, 2025. TMC's Board of Directors authorized entry into the Decree by board resolution dated February 10, 2025. State co-plaintiffs' signature pages were executed on February 14, 2025. TMC's officer's certificate and secretary's certificate were executed on February 18, 2025. The fully executed Consent Decree was lodged with this Court on February 19, 2025.

On February 19, 2025, pursuant to 28 U.S.C. § 7003(d), notice of the lodging of the Consent Decree was published in the Federal Register, 90 Fed. Reg. 12,387, thereby initiating the required 30-day public comment period. The comment period closed on March 21, 2025. As discussed infra in Section V, the United States received fourteen (14) public comments and has carefully considered and responded to each.

C. The Four Sites

1. Ridgecrest Copper-Molybdenum Mine (Ridgecrest Site)

The Ridgecrest Copper-Molybdenum Mine ("Ridgecrest" or "Ridgecrest Site") is located at 14200 Ridgecrest Mine Road, Drummond, Granite County, Montana 59832, in the Flint Creek Valley of western Montana. The mine encompasses an approximately 3,200-acre mine footprint, with approximately 8,700 acres of total controlled property, including the open pit, waste rock dumps, tailings impoundment, process facilities, and associated infrastructure. The Ridgecrest Site is situated within the upper watershed of Flint Creek, a tributary of the Clark Fork River, which in turn is a major tributary of the Columbia River system.

The Ridgecrest Mine is an open-pit copper-molybdenum porphyry deposit that has been operational since 1978, when mining commenced under a predecessor operator. TMC acquired the mine through its acquisition of RMH in 2004. Active mining operations ceased on December 31, 2019, and the site is currently in a closure and reclamation phase. The mine employed approximately 340 workers at peak production and currently maintains a reclamation workforce of approximately 45 persons.

The Ridgecrest Site has been proposed for listing on the National Priorities List ("NPL") under CERCLA, but the listing has been deferred pending resolution of this action. In the interim, the site is being addressed under an Administrative Order on Consent ("AOC"), Docket No. CERCLA-08-2022-0039, executed on September 15, 2022, between EPA Region 8 and TM(US)/RMH. The EPA Project Coordinator for the Ridgecrest Site is Dr. Samuel Tesfaye of EPA Region 8.

The principal contaminants of concern at the Ridgecrest Site are associated with acid mine drainage ("AMD") generated by the exposure of sulfide-bearing waste rock and pit walls to oxygen and precipitation. Dissolved copper concentrations in AMD discharges have averaged 47 mg/L, which is approximately 5,400 times the Montana surface-water chronic aquatic life standard of 0.0087 mg/L (based on a hardness of 100 mg/L CaCO₃). Dissolved molybdenum concentrations in AMD discharges have averaged 1.2 mg/L. Selenium concentrations have averaged 0.082 mg/L, and sulfate concentrations have averaged approximately 3,400 mg/L. The site includes a 425-acre tailings impoundment with documented seepage to Flint Creek, which has resulted in elevated metals concentrations in the creek and degradation of aquatic habitat for native westslope cutthroat trout (Oncorhynchus clarkii lewisi), a species of special concern in Montana.

The Complaint alleges the following violations at the Ridgecrest Site: (i) violations of Section 301 of the CWA, 33 U.S.C. § 1311, arising from unpermitted discharges of pollutants, including AMD, from the mine site to Flint Creek and its tributaries, which are waters of the United States; (ii) violations of Section 3004 of RCRA, 42 U.S.C. § 6924, arising from the mismanagement of hazardous waste generated by the solvent-extraction/electrowinning ("SX/EW") circuit at the mine, including improper storage and disposal of spent organic extractant; and (iii) liability under Section 107 of CERCLA, 42 U.S.C. § 9607, for cost recovery of $14.3 million in past response costs incurred by EPA in connection with removal actions conducted at the site between January 2021 and May 2023, which included emergency AMD treatment, construction of interim diversion channels, and stabilization of a failing section of the tailings dam embankment.

2. Gallatin Chemical Works (Gallatin Site)

The Gallatin Chemical Works ("Gallatin" or "Gallatin Site") is located at 8800 Industrial Park Lane, Belgrade, Gallatin County, Montana 59714, approximately eight miles west of Bozeman, Montana. The facility occupies approximately 145 acres within an industrial park zone and has been operational since 1993. The Gallatin Site is operated by TSC and manufactures specialty chemicals used in mineral processing, including flotation reagents, sodium xanthate, and dithiophosphate collectors. The facility currently employs approximately 185 workers.

The Gallatin Site is a RCRA Corrective Action facility operating under RCRA Permit No. MTD098712456. The facility has three identified solid waste management units ("SWMUs") that are subject to corrective action requirements: SWMU-1, a former process wastewater evaporation pond (0.8 acres); SWMU-2, a former chemical drum storage area (0.3 acres); and SWMU-3, an area of subsurface soil contamination beneath a former loading dock (0.15 acres).

The principal contaminants of concern at the Gallatin Site include carbon disulfide ("CS₂") in groundwater, with maximum detected concentrations of 890 µg/L — approximately 89 times the Maximum Contaminant Level ("MCL") of 10 µg/L — as well as xanthate decomposition products and volatile organic compounds ("VOCs"), including toluene and xylene, in subsurface soils at and downgradient of the SWMUs. The CS₂ groundwater plume extends approximately 1,200 feet downgradient of the facility in the direction of the East Gallatin River.

The Complaint alleges the following violations at the Gallatin Site: (i) violations of Sections 3004 and 3005 of RCRA, 42 U.S.C. §§ 6924, 6925, arising from unpermitted hazardous-waste storage in excess of the 90-day generator accumulation limit and from the failure to perform required corrective action at the three SWMUs; and (ii) violations of Section 301 of the CWA, 33 U.S.C. § 1311, arising from fourteen (14) exceedances of the Montana Pollutant Discharge Elimination System ("MPDES") permit limits for CS₂ and total suspended solids ("TSS") at permitted outfalls during the period from January 2021 through June 2024.

3. Bonanza Creek Gold Mine (Bonanza Creek Site)

The Bonanza Creek Gold Mine ("Bonanza Creek" or "Bonanza Creek Site") is located on County Road 447, Mile Marker 12, Lander County, Nevada 89820, approximately 28 miles south of the town of Battle Mountain, Nevada, in the northern Nevada Basin and Range province. The mine encompasses approximately 5,600 acres of mine footprint, with approximately 12,400 acres of total controlled property, including the open pit, heap-leach pads, solution ponds, waste rock dumps, and associated infrastructure. The Bonanza Creek Site is operated by BCM.

The Bonanza Creek Mine is an open-pit heap-leach gold mine that has been in continuous operation since 2001. The mine utilizes a conventional cyanide heap-leach process, in which dilute cyanide solution is applied to crushed ore on lined leach pads to dissolve gold, and the resulting pregnant solution is collected and processed through a carbon-in-column circuit. The mine currently employs approximately 275 workers. Active mining and leaching operations are ongoing, with an estimated remaining mine life of approximately 12 years based on current reserves.

The EPA Project Coordinator for the Bonanza Creek Site is Jennifer Whitfield of EPA Region 9.

The principal contaminants of concern at the Bonanza Creek Site include weak acid dissociable ("WAD") cyanide, with concentrations of 0.62 mg/L measured in the heap-leach pad underdrain, compared to the applicable discharge limit of 0.022 mg/L; mercury, with average concentrations of 12.4 µg/L compared to the applicable water-quality criterion of 0.77 µg/L; and selenium in pit-lake water. The site has also experienced three documented unauthorized releases of process solution from the heap-leach pad through a torn high-density polyethylene ("HDPE") liner to an ephemeral tributary of the Reese River, which occurred on March 17, 2022; August 9, 2022; and January 22, 2023.

The Complaint alleges the following violations at the Bonanza Creek Site: (i) violations of Section 301 of the CWA, 33 U.S.C. § 1311, arising from the three unpermitted discharges of process solution from the heap-leach pad via the torn liner to an ephemeral tributary of the Reese River, a water of the United States; (ii) violations of Section 3004 of RCRA, 42 U.S.C. § 6924, arising from the management of spent heap-leach ore containing residual cyanide as hazardous waste in a manner inconsistent with RCRA requirements; and (iii) violations of the Migratory Bird Treaty Act, 16 U.S.C. § 703, based on 17 documented avian mortalities in solution ponds at the Bonanza Creek facility during the period from 2021 through 2023, including mortalities of migratory waterfowl species protected under the MBTA.

4. Kanawha Bend Chemical Plant (Kanawha Bend Site)

The Kanawha Bend Chemical Plant ("Kanawha Bend" or "Kanawha Bend Site") is located at 2200 Chemical Valley Road, Institute, Kanawha County, West Virginia 25112, in the Kanawha River valley region of central West Virginia commonly known as "Chemical Valley." The facility occupies approximately 78 acres and has been operational since 1985. The Kanawha Bend Site is operated by TSC and manufactures leaching agents and performs sulfuric acid regeneration for use in mining and industrial processes. The facility currently employs approximately 110 workers.

The Kanawha Bend Site is a RCRA Corrective Action facility operating under RCRA Permit No. WVD048823915. The facility includes a former surface impoundment (the "former waste lagoon") that received process wastewater and acid-bearing residuals from approximately 1985 through 2008 and was the subject of a contested closure process.

The principal contaminants of concern at the Kanawha Bend Site include sulfuric acid residuals in soils with pH values as low as 1.8; heavy metals in subsurface soils near the former waste lagoon, including lead at maximum concentrations of 4,200 mg/kg and arsenic at maximum concentrations of 890 mg/kg; and dense nonaqueous-phase liquid ("DNAPL") consisting of chlorinated solvents (principally trichloroethylene ("TCE") and perchloroethylene ("PCE")) in a fractured bedrock aquifer underlying the site. The DNAPL contamination extends to a depth of approximately 85 feet below ground surface and has impacted a portion of the Kanawha River alluvial aquifer.

The Complaint alleges the following violations at the Kanawha Bend Site: (i) violations of Sections 3004 and 3005 of RCRA, 42 U.S.C. §§ 6924, 6925, arising from the failure to properly close the former surface impoundment in accordance with RCRA closure requirements and from the unpermitted treatment of listed hazardous wastes (EPA Hazardous Waste Nos. K062 and D002) at the facility; and (ii) liability under Section 107 of CERCLA, 42 U.S.C. § 9607, for cost recovery of $3.8 million in past response costs incurred by EPA in connection with an emergency response action in June 2020 following a release of sulfuric acid to a tributary of the Kanawha River. The emergency response included containment and neutralization of the acid release, excavation and off-site disposal of contaminated soils, and installation of interim groundwater monitoring wells.

III. LEGAL STANDARD FOR ENTRY OF A CONSENT DECREE

It is well established that a consent decree resolving claims under the federal environmental statutes should be entered by the court when the decree is "fair, reasonable, and consistent with the objectives" of the relevant statutes. United States v. Cannons Eng'g Corp., 899 F.2d 79, 85 (1st Cir. 1990); see also United States v. Montrose Chem. Corp. of Cal., 50 F.3d 741, 746 (9th Cir. 1995); United States v. Charles George Trucking, Inc., 34 F.3d 1081, 1084 (1st Cir. 1994). The court's inquiry encompasses both the procedural and substantive fairness of the proposed decree. Cannons Eng'g, 899 F.2d at 86.

The role of the court in reviewing a proposed consent decree is "limited." Id. at 84. The court is not to "substitute its judgment for that of the parties" or to "try the case" in the context of ruling on a consent decree motion. Id. Rather, the court's function is to ensure that the decree is not "illegal," not "a product of collusion," and not "inequitable" to the interests of parties or non-parties who will be affected by its terms. Id.; Charles George Trucking, 34 F.3d at 1084-85. The court should satisfy itself that the decree represents a reasonable accommodation of the competing interests at stake, including the interests of the plaintiffs in obtaining effective relief, the interests of the defendants in resolving their liability, and the interests of the public in environmental protection and the effective administration of the environmental statutes.

In evaluating whether a consent decree is fair, reasonable, and adequate, the court should consider, among other factors: (1) the strength of the plaintiffs' case and the likelihood of success on the merits; (2) the risks, complexity, and expense of continued litigation; (3) whether the settlement was the product of arm's-length, good-faith negotiations; (4) the adequacy of the relief provided in light of the objectives of the relevant statutes; and (5) whether the settlement treats similarly situated parties equitably. Cannons Eng'g, 899 F.2d at 86-89; Charles George Trucking, 34 F.3d at 1085-86.

The Government is entitled to "broad latitude" and "particular deference" in its assessment of the adequacy of a proposed environmental settlement. Cannons Eng'g, 899 F.2d at 84; see also United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1426 (6th Cir. 1991) (noting that "the executive branch takes the laboring oar in enforcing [environmental] statutes" and that "a district court should not substitute its own judgment for that of the agency"). This deference reflects the "strong judicial policy favoring settlement, particularly in complex environmental litigation." Cannons Eng'g, 899 F.2d at 84.

Procedural fairness requires that the consent decree be subject to public notice and comment before entry. Under 28 U.S.C. § 7003(d), a proposed consent decree in an action brought by the United States under the environmental statutes must be lodged with the court at least 30 days before entry, and notice of the lodging must be published in the Federal Register, providing an opportunity for public comment. The United States is required to consider the comments received and to provide the court with its response to those comments. See 28 U.S.C. § 7003(d); see also Department of Justice Policy on Consent Decrees in Cases Referred by Federal Agencies.

As demonstrated below, the Consent Decree at issue in this case satisfies each of these requirements and should be entered by this Court.

IV. THE CONSENT DECREE IS FAIR, REASONABLE, AND CONSISTENT WITH THE OBJECTIVES OF THE CWA, RCRA, AND CERCLA

The Consent Decree represents a comprehensive resolution of serious environmental violations at four major industrial facilities across three states. Through its combination of mandatory remediation, substantial financial penalties, past-costs reimbursement, supplemental environmental projects, robust financial assurance, and independent monitoring, the Decree achieves the paramount objectives of the CWA, RCRA, and CERCLA — protection of public health and the environment, restoration of contaminated resources, deterrence of future violations, and accountability for past noncompliance. Each of these elements is discussed in turn below.

A. Comprehensive Remediation Requirements

The centerpiece of the Consent Decree is a comprehensive set of remediation obligations requiring the Defendants to investigate, design, and implement remedial measures at all four facilities. The total nominal cost of remediation under the Decree is estimated at $343.5 million, to be expended over periods ranging from 15 to 30 years depending on the site. At a 3% discount rate, the net present value ("NPV") of these remediation obligations is approximately $245.1 million. The remediation program reflects the combined technical judgment of the Government's and Defendants' respective environmental consultants and represents a negotiated outcome that balances the need for effective cleanup against the uncertainties inherent in projecting long-term remediation costs.

The site-specific remediation obligations are as follows:

Ridgecrest Site: $198.6 million over 30 years (NPV: $134.9 million). The Ridgecrest remediation is the largest and most complex component of the Decree, reflecting the scale of the site and the severity of the contamination. The negotiated remediation cost of $198.6 million represents a reasonable compromise between TMC's estimate of $187.5 million (prepared by TMC's environmental consultant, Pinnacle Creek Environmental, LLC, under the direction of Dr. Astrid Bergmann, P.E.) and EPA's estimate of $224.0 million (reviewed and validated by EPA's independent technical expert, Dr. Patricia Voss of Cascade Geosciences, Inc.). The remediation program encompasses acid mine drainage collection and treatment, stabilization and closure of the 425-acre tailings impoundment, waste rock regrading and capping, surface-water and groundwater monitoring, ecological restoration, and long-term post-closure care.

Gallatin Site: $42.8 million over 15 years (NPV: $34.1 million). The Gallatin remediation addresses groundwater contamination by CS₂ and VOCs through a combination of pump-and-treat, in-situ chemical oxidation, soil vapor extraction, and monitored natural attenuation at the three SWMUs, together with facility upgrades to prevent future releases.

Bonanza Creek Site: $63.2 million over 20 years (NPV: $47.1 million). The Bonanza Creek remediation addresses the heap-leach pad liner failure and process-solution releases through comprehensive liner repair and double-liner installation, upgraded solution containment systems, enhanced cyanide destruction and mercury treatment, and long-term pit-lake management.

Kanawha Bend Site: $38.9 million over 20 years (NPV: $29.0 million). The Kanawha Bend remediation addresses the former waste lagoon, acid-impacted soils, heavy-metal contamination, and DNAPL in the fractured bedrock aquifer through a combination of excavation and off-site disposal, in-situ stabilization, DNAPL recovery, and enhanced bioremediation.

The Consent Decree requires the submission of detailed remediation work plans, corrective measures studies, and milestone schedules, with specific deadlines designed to ensure that remedial work commences promptly and proceeds without unreasonable delay. The key milestone deadlines are:

• Ridgecrest Remedial Action Work Plan: due December 14, 2025, with remedy construction commencing no later than June 14, 2027;

• Gallatin Corrective Measures Study: due June 14, 2026;

• Bonanza Creek liner repair and containment: to commence by June 14, 2026;

• Kanawha Bend interim stabilization: to be completed by December 14, 2026.

Additionally, a comprehensive sampling and monitoring plan for all four sites is appended to the Decree as Appendix D. The monitoring plan specifies sampling frequencies, analytical parameters, quality assurance/quality control protocols, data management and reporting requirements, and triggers for adaptive management responses. All sampling results will be reported quarterly to EPA, the relevant state agency, and the independent environmental monitor.

The remediation requirements under the Decree are subject to performance standards — not merely cost caps — meaning that if actual remediation costs exceed the estimates, the Defendants remain obligated to achieve the specified cleanup levels regardless of cost. Conversely, if remediation can be achieved at lower cost, the Defendants benefit from the savings but must nonetheless satisfy all performance milestones and applicable standards.

B. Substantial Civil Penalty

The Consent Decree requires the Defendants to pay a total civil penalty of $31.5 million, allocated among the four sites as follows:

• Ridgecrest: $14.2 million

• Gallatin: $5.8 million

• Bonanza Creek: $7.9 million

• Kanawha Bend: $3.6 million

The civil penalty will be paid in four equal installments of $7.875 million each: the first installment (25%) within 30 days of the Effective Date (i.e., by approximately July 14, 2025, assuming a Decree entry date on or about May 15, 2025); the second installment (25%) at 12 months after the Effective Date; the third installment (25%) at 24 months after the Effective Date; and the fourth and final installment (25%) at 36 months after the Effective Date. Interest will accrue on unpaid installments at the rate specified in 28 U.S.C. § 1961 from the date of each missed payment.

The penalty amount was calculated in accordance with EPA's established penalty policies, including the Clean Water Act Section 309(d) Penalty Policy, the RCRA Civil Penalty Policy, and the Policy on Civil Penalties promulgated by the EPA Office of Enforcement and Compliance Assurance. In determining the appropriate penalty, the United States considered the following statutory and policy factors: (1) the gravity and severity of the violations, including the volume and toxicity of pollutants discharged, the sensitivity of the receiving environment, and the duration of the violations; (2) the economic benefit gained by the Defendants through noncompliance, including avoided costs of treatment, containment, and proper waste management; (3) the Defendants' ability to pay, taking into account TMC's substantial financial resources; (4) the Defendants' history of violations and prior enforcement actions; (5) the Defendants' good faith and cooperation during the investigation and settlement process; and (6) the deterrent effect of the penalty on the Defendants and similarly situated parties.

The $31.5 million civil penalty is consistent with or exceeds the penalty amounts in comparable multi-site mining and chemical-industry enforcement consent decrees entered in recent years. When considered in combination with the $343.5 million in remediation obligations, $18.1 million in past-costs reimbursement, $12.0 million in supplemental environmental projects, and $4.8 million in independent monitoring costs, the total financial commitment of $409.9 million provides a strong deterrent signal to the regulated community.

C. Reimbursement of EPA Past Costs

The Consent Decree requires the Defendants to reimburse EPA a total of $18.1 million in past response costs. These costs consist of two components:

First, $14.3 million in costs incurred by EPA in connection with removal actions at the Ridgecrest Site conducted between January 2021 and May 2023. These removal actions were necessitated by the deteriorating conditions at the site following the cessation of active mining in 2019 and included emergency AMD treatment to prevent catastrophic discharge to Flint Creek, construction of interim diversion channels to redirect contaminated surface water to treatment facilities, and emergency stabilization of a failing section of the tailings dam embankment that posed an imminent risk of structural failure and downstream inundation.

Second, $3.8 million in costs incurred by EPA in connection with an emergency response at the Kanawha Bend Site in June 2020 following a release of sulfuric acid to a tributary of the Kanawha River. The emergency response included the deployment of containment booms and neutralization agents, excavation and off-site disposal of approximately 2,800 cubic yards of contaminated soil, installation of eight interim groundwater monitoring wells, and emergency sampling of the Kanawha River and its tributaries to assess the extent of the release.

The past-costs reimbursement will be paid in a single lump-sum payment within 30 days of the Effective Date of the Consent Decree. The reimbursement amount is based on EPA's documented costs, which were provided to the Defendants during the negotiation process and which the Defendants have accepted as accurate without reservation.

D. Supplemental Environmental Projects (SEPs)

In addition to the remediation, civil penalty, and past-costs reimbursement obligations, the Consent Decree requires the Defendants to fund $12.0 million in three Supplemental Environmental Projects ("SEPs") that will provide tangible environmental and public health benefits to communities directly affected by the violations at issue in this case. The SEPs were developed in consultation with the relevant state agencies and local communities and satisfy the nexus and other requirements of EPA's Supplemental Environmental Projects Policy (2015, as updated).

The three SEPs are as follows:

1. Flint Creek Watershed Restoration Project (Montana): $5.5 million. This project will fund stream-bank stabilization, riparian replanting using native vegetation species, and fish-passage improvements along approximately 12 miles of Flint Creek downstream of the Ridgecrest Mine. The project is designed to restore aquatic habitat degraded by historic and ongoing acid mine drainage and to benefit native westslope cutthroat trout populations. The project was developed in consultation with Montana DEQ, the Montana Department of Fish, Wildlife and Parks, and the Flint Creek Watershed Group, a local watershed conservation organization. Implementation will be overseen by Montana DEQ with technical support from the U.S. Fish and Wildlife Service.

2. Battle Mountain Community Drinking Water Improvement Project (Nevada): $3.5 million. This project will fund the upgrade of the municipal water treatment facility serving the town of Battle Mountain, Lander County, Nevada (population approximately 3,300), the community nearest to the Bonanza Creek Mine. The upgrade will include the installation of advanced filtration and disinfection equipment, replacement of aging distribution infrastructure, and the addition of a standby power generation system. The project was developed in consultation with NV DEP, the Lander County Commission, and the Battle Mountain Water District.

3. Institute Community Air Quality Monitoring Network (West Virginia): $3.0 million. This project will fund the installation and 10-year operation of six ambient air quality monitoring stations in the Institute and South Charleston area of Kanawha County, West Virginia, communities that have historically been disproportionately affected by industrial emissions from Chemical Valley. The monitoring stations will continuously measure particulate matter (PM₂.₅ and PM₁₀), sulfur dioxide (SO₂), volatile organic compounds (VOCs), and hydrogen sulfide (H₂S). Real-time monitoring data will be made publicly available through a dedicated website and mobile application. The project was developed in consultation with WV DEP and the Institute Community Development Corporation.

Each SEP is subject to detailed implementation schedules, performance metrics, and reporting requirements set forth in the Consent Decree. The Defendants are required to complete each SEP within specified timeframes and to submit periodic progress reports to EPA and the relevant state agency.

E. Robust Financial Assurance

The Consent Decree requires the Defendants to establish financial assurance totaling $245.0 million to guarantee the performance of their remediation obligations under the Decree. The financial assurance package consists of two components:

Surety Bond: $165.0 million. Defendants are required to obtain and maintain a surety bond in the amount of $165.0 million, issued by Ironbark Surety of America, Inc. ("Ironbark"), a licensed surety company with an A.M. Best rating of A (Excellent). The bond has been designated as Bond No. ISA-ENV-2025-08934 and carries an annual premium of 1.85%, or approximately $3.0525 million per year. The bond is payable to the United States of America as obligee and may be drawn upon in the event of the Defendants' failure to perform the remediation obligations specified in the Decree.

Remediation Trust Fund: $80.0 million. Defendants are required to establish and fund a remediation trust fund in the amount of $80.0 million, to be held and administered by Larchfield Trust Company, N.A. ("Larchfield"), under Trust Agreement No. LTC-REM-2025-1177. The trust officer designated by Larchfield is David Henshaw, Senior Vice President. The trust fund will be invested in accordance with prudent investment guidelines specified in the Consent Decree, which limit investments to U.S. Treasury securities, investment-grade corporate bonds, and money market instruments. Disbursements from the trust fund require the prior written approval of EPA and are subject to the oversight of the independent environmental monitor.

The deadline for the Defendants to establish the remediation trust fund and post the surety bond is September 12, 2025, which is approximately 90 days after the anticipated Effective Date.

The Consent Decree also includes an annual adjustment mechanism to ensure the adequacy of the financial assurance over the life of the Decree. Specifically, the total amount of required financial assurance will be reviewed annually in conjunction with updated remediation cost estimates. If the updated cost estimates exceed the existing financial assurance by more than 10%, the Defendants must increase the financial assurance to match the updated estimates within 60 days of notification by EPA. The surety bond is subject to annual renewal, and the Defendants must provide evidence of renewal to EPA and the Court no later than 60 days before each renewal date.

F. Independent Environmental Monitor

The Consent Decree provides for the appointment of an independent environmental monitor to oversee the Defendants' compliance with the Decree's requirements. The parties have jointly selected Verdant Analytics, Inc. ("Verdant"), an environmental consulting firm based in Portland, Oregon, to serve as the independent monitor. The senior managing director of Verdant's monitoring practice, Dr. Kamal Osei, Ph.D., P.E., will serve as the lead monitor. Dr. Osei has over 25 years of experience in environmental compliance monitoring, mine site remediation, and Superfund project management.

Verdant will conduct quarterly compliance audits at each of the four sites, evaluating the Defendants' progress against the milestone schedules and performance standards set forth in the Decree. Verdant will also prepare annual public reports summarizing its findings, which will be filed with the Court and made available to the public. The monitor's reports will include assessments of compliance status, identification of any deficiencies or delays, recommendations for corrective actions, and evaluations of the adequacy of the financial assurance.

The estimated cost of the independent monitoring function is approximately $4.8 million over a five-year initial term, or approximately $960,000 per year. The monitoring costs are borne by the Defendants. The monitor's initial five-year term is subject to renewal by agreement of the parties and approval of the Court. The monitor's authority, duties, access rights, and confidentiality obligations are set forth in detail in Appendix E to the Consent Decree.

The independent monitor provides an additional layer of accountability beyond EPA's own oversight, ensuring transparency and public confidence in the implementation of the Decree.

G. Strong Enforcement Mechanisms

The Consent Decree contains robust enforcement mechanisms designed to ensure timely and complete compliance with its terms:

Stipulated Penalties. The Decree provides for stipulated penalties for violations of its requirements, escalating in severity based on the duration of noncompliance: $1,500 per day per violation for the first 30 days of noncompliance; $3,000 per day per violation for days 31 through 60 of noncompliance; and $5,500 per day per violation for each day of noncompliance thereafter. These stipulated penalties are payable upon demand by EPA and are in addition to any other remedies available to the Government, including judicial enforcement. The stipulated penalty amounts are consistent with the provisions of comparable consent decrees in multi-site environmental enforcement actions.

Force Majeure. The Decree includes a force majeure provision that excuses noncompliance to the extent it is caused by circumstances beyond the Defendants' control, such as natural disasters, acts of war, or unforeseen subsurface conditions. To invoke the force majeure provision, the Defendants must provide written notice to EPA within 15 days of the event giving rise to the claim, specifying the nature of the event, the anticipated duration of the delay, and the measures taken to mitigate the delay. The burden of proof lies with the Defendants to demonstrate that the force majeure event was the sole cause of the noncompliance and that reasonable measures were taken to minimize any resulting delay.

Dispute Resolution. The Decree establishes a three-tier dispute resolution mechanism for any disputes arising under the Decree:

(i) Tier 1 — Informal Negotiation: The parties shall first attempt to resolve the dispute through informal negotiation within 30 days of the date on which the dispute arises.

(ii) Tier 2 — Formal EPA Decision: If informal negotiation does not resolve the dispute, EPA shall issue a formal written decision within 30 days of the conclusion of the informal negotiation period. The EPA decision shall set forth the basis for the agency's position and any required compliance actions.

(iii) Tier 3 — Judicial Review: If the Defendants disagree with EPA's formal decision, they may petition this Court for judicial review within 30 days of the date of EPA's decision. The standard of review shall be whether EPA's decision is arbitrary and capricious or otherwise not in accordance with law.

Termination. The Consent Decree provides for site-by-site termination upon joint certification by EPA and the independent environmental monitor that all remedial construction and performance requirements at the relevant site have been completed. No site may be terminated from the Decree sooner than five years after completion of all remedial construction at that site, thereby ensuring a sufficient period of post-construction monitoring to confirm the long-term effectiveness of the remedy.

H. Aggregate Financial Commitment

The total estimated financial obligation imposed on the Defendants under the Consent Decree is as follows:

The magnitude of this financial commitment — nearly $410 million in nominal terms and over $311 million in NPV/cash-equivalent terms — underscores the seriousness and adequacy of the Consent Decree. The Decree imposes a level of financial responsibility on the Defendants that is commensurate with the scope and severity of the environmental violations at issue and reflects the Government's commitment to holding polluters accountable while ensuring effective cleanup.

I. State Co-Plaintiffs' Concurrence

The States of Montana, Nevada, and West Virginia, each acting as co-plaintiffs in this action, have each executed the Consent Decree and concur in this Motion for Entry. The state co-plaintiffs' concurrence reflects their judgment, as the sovereign authorities most directly responsible for the protection of their residents and natural resources, that the Decree is fair, reasonable, and adequate to address the violations within their respective jurisdictions.

Co-Plaintiff Montana, through Assistant Attorney General Annika Hedstrom, consents with respect to the Ridgecrest and Gallatin facilities, both located within the State of Montana. Montana DEQ has been actively involved in the negotiation of the remediation requirements and SEPs applicable to the Montana facilities and is satisfied that the Decree adequately protects Montana's waters, lands, and communities.

Co-Plaintiff Nevada, through Deputy Attorney General Ricardo Fuentes, consents with respect to the Bonanza Creek facility located in Lander County, Nevada. NV DEP participated in the development of the remediation and SEP provisions applicable to the Bonanza Creek Site and concurs that the Decree addresses the violations and community impacts arising from that facility.

Co-Plaintiff West Virginia, through Assistant Attorney General Loretta May Hatcher, consents with respect to the Kanawha Bend facility located in Kanawha County, West Virginia. WV DEP participated in the development of the remediation and SEP provisions applicable to the Kanawha Bend Site and concurs that the Decree addresses the violations and community health concerns arising from that facility.

State joinder and signature pages were executed on February 14, 2025, prior to the lodging of the Consent Decree with this Court on February 19, 2025.

J. Risks of Continued Litigation

While the United States believes that its case against the Defendants is strong and that the evidence supports the alleged violations, continued litigation would involve substantial uncertainty, delay, and expense. The complexity of the factual and technical issues in this case — encompassing four facilities in three states, three federal environmental statutes, multiple categories of contaminants, and contested remedy-selection and cost-allocation questions — would necessitate extensive expert discovery, protracted motion practice, and a trial of potentially several weeks' duration.

The contested remedy costs at the Ridgecrest Site alone illustrate the uncertainties that would attend continued litigation. TMC's environmental consultant estimated the cost of remediation at $187.5 million, while EPA's independent technical expert estimated the cost at $224.0 million — a difference of $36.5 million attributable to differing assumptions about the performance of AMD treatment technologies, the extent of tailings dam repairs required, the duration and intensity of post-closure monitoring, and other technical variables. The negotiated figure of $198.6 million represents a reasonable compromise that accounts for these uncertainties while ensuring that the remedy will achieve the required performance standards.

Moreover, protracted litigation would delay the commencement of remediation work at all four sites, during which time AMD would continue to discharge to Flint Creek, CS₂ would continue to migrate in the Gallatin groundwater aquifer, process-solution releases could recur at Bonanza Creek, and DNAPL contamination would continue to spread in the fractured bedrock aquifer at Kanawha Bend. Each day of delay represents continued environmental harm and continued risk to public health.

The Consent Decree eliminates litigation risk for all parties, accelerates the commencement of environmental cleanup, and provides certain and enforceable relief. The certainty of the Decree's obligations — backed by stipulated penalties, financial assurance, and independent monitoring — far exceeds the uncertain and delayed relief that might be obtained through litigation. The strong public interest in prompt remediation and the risks of continued litigation both weigh decisively in favor of entry of the Decree.

V. RESPONSE TO PUBLIC COMMENTS

A. Summary of Public Comment Process

As required by 28 U.S.C. § 7003(d), the Consent Decree was lodged with this Court on February 19, 2025, and notice of the lodging was published in the Federal Register on that same date. See 90 Fed. Reg. 12,387 (Feb. 19, 2025). The notice specified a 30-day public comment period, which closed on March 21, 2025. The notice also identified the locations where the Consent Decree could be reviewed and the address for submission of public comments.

During the 30-day comment period, the United States received fourteen (14) public comments from a range of commenters, including environmental advocacy organizations, community groups, local government officials, academic researchers, and individual citizens. The comments addressed various aspects of the Consent Decree, including the adequacy of remediation obligations, the appropriateness of the civil penalty, specific concerns about particular sites, and the sufficiency of financial assurance. The United States has carefully considered each comment and responds to the substantive comments below.

B. Summary of Comments Received and Responses

1. Comments Regarding Adequacy of Remediation at Ridgecrest

Summary of Comments. Several commenters asserted that the $198.6 million remediation commitment at the Ridgecrest Site is insufficient to address the full extent of acid mine drainage contamination and tailings seepage. Commenters expressed concern that the negotiated cost was closer to TMC's lower estimate ($187.5 million) than to EPA's higher estimate ($224.0 million) and that the 30-year remediation timeline may prove inadequate given the persistent nature of AMD from sulfide-bearing waste rock. One commenter, a professor of geochemistry at the University of Montana, submitted technical comments suggesting that the AMD treatment costs may be underestimated by as much as 25% if the rate of sulfide oxidation increases as climate change alters precipitation patterns in the Flint Creek watershed.

Response. The United States appreciates the detailed technical concerns raised by commenters regarding the Ridgecrest remediation. The negotiated remediation cost of $198.6 million was the product of extensive technical analysis by both parties' environmental consultants. TMC's consultant, Pinnacle Creek Environmental, LLC, under the direction of Dr. Astrid Bergmann, P.E., prepared a comprehensive remediation cost estimate based on detailed site characterization data, pilot-scale treatment studies, and engineering design analyses. EPA's independent technical expert, Dr. Patricia Voss of Cascade Geosciences, Inc., independently reviewed TMC's estimate and prepared EPA's own estimate of $224.0 million. The difference between the two estimates was attributable primarily to differing assumptions about AMD treatment system capacity requirements, the extent of tailings dam buttressing needed, and the duration of active post-closure water treatment.

The negotiated figure of $198.6 million reflects a reasonable resolution of these technical disputes and is well within the range of the two expert estimates. Importantly, the remediation obligation under the Decree is a performance-based obligation, not a cost cap. If actual remediation costs exceed $198.6 million, the Defendants remain obligated to achieve the performance standards specified in the Decree, including applicable surface-water and groundwater quality standards, regardless of cost. The Decree's adaptive management provisions (Section VIII of the Decree) expressly authorize EPA to require modifications to the remedial approach if monitoring data indicate that the remedy is not achieving the specified performance standards.

Furthermore, the Decree's financial assurance provisions ensure that adequate funding is available to complete remediation even in the event of cost overruns or changes in the Defendants' financial circumstances. The $245.0 million financial assurance package — comprising a $165.0 million surety bond and an $80.0 million remediation trust fund — exceeds the NPV of the total remediation obligation ($245.1 million at a 3% discount rate) and is subject to annual adjustment based on updated cost estimates. The independent environmental monitor (Verdant Analytics, Inc.) will conduct quarterly compliance audits at the Ridgecrest Site, providing an additional mechanism for early identification of any remediation deficiencies.

The remedy as designed addresses all principal contaminants of concern at the Ridgecrest Site, including copper, molybdenum, selenium, and sulfate in AMD discharges, as well as tailings impoundment seepage to Flint Creek. The 30-year remediation timeline reflects the long-term nature of AMD treatment requirements and is consistent with the timelines for comparable mine-site remediation programs. For all of these reasons, the United States believes that the remediation commitment at the Ridgecrest Site is adequate and appropriate.

2. Comments Regarding Civil Penalty Amount

Summary of Comments. Multiple commenters suggested that the $31.5 million total civil penalty is too low given the severity and duration of the violations at all four sites, and that a higher penalty would serve as a more effective deterrent. One commenter, a national environmental advocacy organization, compared the penalty to TMC's FY2023 revenue of approximately C$4.82 billion and argued that a penalty representing less than 1% of annual revenue is insufficient to deter future violations by a company of TMC's size.

Response. The civil penalty of $31.5 million was calculated in accordance with EPA's established penalty policies, which require consideration of multiple statutory and policy factors, including the gravity and duration of the violations, the economic benefit of noncompliance, the violator's ability to pay, the history of violations, good faith efforts to comply, and other relevant factors. The penalty is intended to serve both punitive and deterrent functions, but it must also be fair and proportionate when considered in the context of the overall settlement.

The United States acknowledges that, viewed in isolation, a $31.5 million penalty may appear modest in comparison to TMC's revenue. However, the penalty cannot be evaluated in isolation. It is one component of a comprehensive settlement with a total financial obligation of $409.9 million. The $343.5 million in remediation obligations, $18.1 million in past-costs reimbursement, $12.0 million in supplemental environmental projects, and $4.8 million in independent monitoring costs together impose a substantial financial burden on the Defendants that far exceeds the penalty alone. When the full scope of the Defendants' financial obligations under the Decree is considered, the settlement represents a significant and meaningful deterrent.

Moreover, the $31.5 million civil penalty is consistent with or exceeds the penalty amou

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION
PLAINTIFFS' MOTION FOR ENTRY OF CONSENT DECREE
Filed: April 7, 2025
The United States of America, by and through undersigned counsel Philip Orenstein, Trial Attorney, Environmental Enforcement Section, Environment and Natural Resources Division, U.S. Department of Justice, under the supervision of Katherine Rowe-Halpern, Senior Counsel, Environmental Enforcement Section, Environment and Natural Resources Division, U.S. Department of Justice, and on behalf of the United States of America, with the concurrence of co-plaintiffs the State of Montana (by Annika Hedstrom, Assistant Attorney General, Montana Attorney General's Office, Environmental Bureau), the State of Nevada (by Ricardo Fuentes, Deputy Attorney General, Nevada Attorney General's Office), and the State of West Virginia (by Loretta May Hatcher, Assistant Attorney General, West Virginia Attorney General's Office), and in coordination with the United States Environmental Protection Agency, Office of Enforcement and Compliance Assurance (Lead EPA Case Attorney Margaret Coulson), hereby files this Motion for Entry of Consent Decree. This Motion has been prepared in coordination with Calderwood & Harkness LLP (Harrison Wexford, Responsible Partner), counsel for all Defendants, who do not oppose entry of the Consent Decree.
TABLE OF CONTENTS
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I. INTRODUCTION
The United States of America, joined by the States of Montana, Nevada, and West Virginia as co-plaintiffs, respectfully moves this Court pursuant to 28 U.S.C. § 7003(d) and the inherent authority of this Court to enter the Consent Decree ("Decree") lodged with this Court on February 19, 2025. The Decree resolves all claims asserted by Plaintiffs and Co-Plaintiffs in this action under Section 301 of the Clean Water Act ("CWA"), 33 U.S.C. § 1311; Sections 3004 and 3005 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6924, 6925; Sections 107 and 113 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9607, 9613; the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703 et seq.; and corresponding state environmental statutes of Montana, Nevada, and West Virginia.
The Consent Decree addresses alleged violations at four facilities operated by Defendant Torchlight Mining Corp. ("TMC") and its wholly owned U.S. subsidiaries — 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") — located in Montana, Nevada, and West Virginia. These facilities include the Ridgecrest Copper-Molybdenum Mine near Drummond, Montana; the Gallatin Chemical Works near Belgrade, Montana; the Bonanza Creek Gold Mine near Battle Mountain, Nevada; and the Kanawha Bend Chemical Plant near Institute, West Virginia. The Consent Decree imposes comprehensive remediation requirements, a substantial civil penalty, reimbursement of EPA past response costs, supplemental environmental projects, robust financial assurance, and independent environmental monitoring, for a total estimated financial obligation of $409.9 million (nominal) or $311.5 million (NPV/cash equivalent).
The Consent Decree was lodged with this Court on February 19, 2025, and notice of the lodging was published in the Federal Register on that same date, thereby initiating the 30-day public comment period required by 28 U.S.C. § 7003(d). The comment period closed on March 21, 2025. The United States received fourteen (14) public comments during the comment period and has carefully considered each of them. The United States responds to those comments herein and concludes that none provides a basis for modifying or declining to enter the Decree.
The Defendants consent to the entry of the Decree and do not oppose this Motion. Defendants' counsel, Calderwood & Harkness LLP, has been consulted regarding this filing and has confirmed that the Defendants affirmatively support the entry of the Consent Decree as lodged.
For the reasons set forth below, the Consent Decree is fair, reasonable, adequate, and consistent with the objectives of the CWA, RCRA, and CERCLA, and this Court should enter it.
II. BACKGROUND
A. The Parties
1. Plaintiffs and Co-Plaintiffs
Plaintiff the United States of America acts in this matter through the U.S. Environmental Protection Agency ("EPA"), Office of Enforcement and Compliance Assurance ("OECA"), with lead EPA case attorney Margaret Coulson, and through the U.S. Department of Justice ("DOJ"), Environment and Natural Resources Division ("ENRD"), Environmental Enforcement Section, with lead trial attorney Philip Orenstein under the supervision of Senior Counsel Katherine Rowe-Halpern. EPA Region 8 (headquartered in Denver, Colorado), which has regulatory jurisdiction over the States of Montana and Colorado, maintains oversight authority over the Ridgecrest and Gallatin facilities. EPA Region 9 (headquartered in San Francisco, California) exercises jurisdiction over the Bonanza Creek facility in Nevada. EPA Region 3 (headquartered in Philadelphia, Pennsylvania) exercises jurisdiction over the Kanawha Bend facility in West Virginia.
Co-Plaintiff the State of Montana brings its claims through the Montana Department of Environmental Quality ("Montana DEQ"), with representation by Annika Hedstrom, Assistant Attorney General, Montana Attorney General's Office, Environmental Bureau. Montana asserts claims related to both the Ridgecrest and Gallatin facilities located within its borders.
Co-Plaintiff the State of Nevada brings its claims through the Nevada Division of Environmental Protection ("NV DEP"), with representation by Ricardo Fuentes, Deputy Attorney General, Nevada Attorney General's Office. Nevada asserts claims related to the Bonanza Creek facility located in Lander County, Nevada.
Co-Plaintiff the State of West Virginia brings its claims through the West Virginia Department of Environmental Protection ("WV DEP"), with representation by Loretta May Hatcher, Assistant Attorney General, West Virginia Attorney General's Office. West Virginia asserts claims related to the Kanawha Bend facility located in Kanawha County, West Virginia.
2. Defendants. Defendant Torchlight Mining Corp. ("TMC") is a corporation incorporated under the Canada Business Corporations Act, R.S.C. 1985, c. C-44, and is dual-listed on the Toronto Stock Exchange ("TSX") and the New York Stock Exchange ("NYSE") under the ticker symbol TRC. TMC maintains its corporate headquarters at 1800 Bayfield Tower, 401 Bay Street, Toronto, Ontario M5H 2Y4, Canada, and its U.S. headquarters at 750 Copper Ridge Boulevard, Suite 200, Helena, Montana 59601. TMC is a diversified mining and specialty chemicals company with operations in Canada, the United States, Chile, and Australia, employing approximately 11,400 persons worldwide, of whom approximately 4,200 are based in the United States. For fiscal year 2023, TMC reported consolidated revenue of approximately C$4.82 billion (approximately US$3.56 billion), EBITDA of approximately C$1.14 billion, and a market capitalization of approximately C$7.6 billion. TMC is the ultimate parent company of each of the other Defendants in this action and, as such, bears joint and several liability for the obligations imposed by the Consent Decree.
Defendant Torchlight Mining (U.S.) Inc. ("TM(US)") is a corporation organized under the laws of the State of Delaware (Employer Identification Number: 83-2047156) and is wholly owned by TMC. TM(US) serves as the direct operator of TMC's U.S. mining operations, including the Ridgecrest Copper-Molybdenum Mine and the Bonanza Creek Gold Mine, and functions as the intermediate holding company for TMC's other U.S. subsidiaries. TM(US) is registered to do business in the States of Montana, Nevada, and West Virginia.
Defendant Torchlight Specialty Chemicals, Inc. ("TSC") is a corporation organized under the laws of the State of Delaware (Employer Identification Number: 47-3819204) and is wholly owned by TMC through TM(US). TSC operates the Gallatin Chemical Works in Belgrade, Montana, and the Kanawha Bend Chemical Plant in Institute, West Virginia. TSC manufactures flotation reagents, sodium xanthate, dithiophosphate collectors, leaching agents, and regenerated sulfuric acid at these two facilities.
Defendant Ridgecrest Mine Holdings, LLC ("RMH") is a limited liability company organized under the laws of the State of Montana (Montana Secretary of State Entity ID: E1042738) and is wholly owned by TM(US). RMH is the holder of the real property and mineral rights associated with the Ridgecrest Copper-Molybdenum Mine near Drummond, Granite County, Montana.
Defendant Bonanza Creek Mining, LLC ("BCM") is a limited liability company organized under the laws of the State of Nevada (Nevada Secretary of State Entity No.: E0518294731) and is wholly owned by TM(US). BCM is the holder of the real property, mineral rights, and water rights associated with the Bonanza Creek Gold Mine near Battle Mountain, Lander County, Nevada.
B. Procedural History
The enforcement action culminating in this Motion has proceeded through the following procedural milestones:
On September 12, 2023, EPA issued a comprehensive Notice of Violation ("NOV") to TMC, addressing violations of the CWA, RCRA, and CERCLA at all four facilities — the Ridgecrest Copper-Molybdenum Mine, the Gallatin Chemical Works, the Bonanza Creek Gold Mine, and the Kanawha Bend Chemical Plant. The NOV was issued jointly by EPA Regions 3, 8, and 9, reflecting the multi-jurisdictional scope of the alleged violations, and was served on TMC at its U.S. headquarters in Helena, Montana, with copies to each relevant state environmental agency.
On January 18, 2024, having been unable to reach a pre-litigation resolution, the United States filed its Complaint in this action, Civil Action No. 9:24-cv-00087-DWM, in the United States District Court for the District of Montana, Missoula Division, before the Honorable Donald W. Molloy, Senior U.S. District Judge. The Complaint alleged violations of Sections 301 and 309 of the CWA, 33 U.S.C. §§ 1311, 1319; Sections 3004 and 3005 of RCRA, 42 U.S.C. §§ 6924, 6925; Sections 107 and 113 of CERCLA, 42 U.S.C. §§ 9607, 9613; the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq.; and corresponding state statutes. The Complaint was filed on behalf of the United States, with the States of Montana, Nevada, and West Virginia joining as co-plaintiffs.
On March 5, 2024, TMC, on behalf of itself and all Defendant entities, filed its Answer to the Complaint, generally denying the material allegations and asserting various affirmative defenses, including statute-of-limitations defenses as to certain claims and challenges to the extent of contamination alleged by the Government.
On April 22, 2024, the parties entered into a Tolling Agreement, which was filed with the Court and so-ordered by Judge Molloy on April 25, 2024. The Tolling Agreement tolled the statute of limitations applicable to all claims asserted or that could be asserted in this action through December 31, 2025, thereby preserving the parties' rights while enabling settlement negotiations to proceed without the pressure of imminent limitations issues.
On May 15, 2024, pursuant to the Court's standing order on alternative dispute resolution, court-ordered mediation was conducted before Magistrate Judge Clara Finnegan. Although the mediation did not result in an immediate settlement, it substantially advanced the parties' understanding of the issues and narrowed the areas of disagreement, laying the groundwork for subsequent productive negotiations.
On July 30, 2024, following continued negotiations after the mediation and multiple exchanges of technical and legal memoranda, the parties reached an agreement in principle on the framework for a consent decree, including the general structure of the remediation obligations, the range of the civil penalty, the concept of supplemental environmental projects, and the establishment of financial assurance mechanisms and independent monitoring.
Beginning in the fall of 2024, the parties engaged in intensive drafting and negotiation of the consent decree text. The DOJ circulated the first draft consent decree on November 8, 2024. TMC, through its counsel at Calderwood & Harkness LLP, returned a comprehensive redline on December 16, 2024. The Government provided a counter-redline on January 14, 2025, and TMC submitted a second redline on January 24, 2025. These exchanges addressed numerous complex issues, including the specific remediation milestones, the scope and cost of remedial work plans, the allocation of the civil penalty among sites, the terms of financial assurance instruments, the selection and scope of authority of the independent environmental monitor, the stipulated penalty provisions, and the force majeure and dispute resolution mechanisms.
On February 3, 2025, the principal negotiators for all parties convened an in-person negotiation session in Washington, D.C., at which the remaining open issues were resolved and the parties finalized the substantially agreed text of the Consent Decree.
The execution version of the Consent Decree was circulated for signature beginning February 10, 2025. TMC's Board of Directors authorized entry into the Decree by board resolution dated February 10, 2025. State co-plaintiffs' signature pages were executed on February 14, 2025. TMC's officer's certificate and secretary's certificate were executed on February 18, 2025. The fully executed Consent Decree was lodged with this Court on February 19, 2025.
On February 19, 2025, pursuant to 28 U.S.C. § 7003(d), notice of the lodging of the Consent Decree was published in the Federal Register, 90 Fed. Reg. 12,387, thereby initiating the required 30-day public comment period. The comment period closed on March 21, 2025. As discussed infra in Section V, the United States received fourteen (14) public comments and has carefully considered and responded to each.
C. The Four Sites
1. Ridgecrest Copper-Molybdenum Mine (Ridgecrest Site)
The Ridgecrest Copper-Molybdenum Mine ("Ridgecrest" or "Ridgecrest Site") is located at 14200 Ridgecrest Mine Road, Drummond, Granite County, Montana 59832, in the Flint Creek Valley of western Montana. The mine encompasses an approximately 3,200-acre mine footprint, with approximately 8,700 acres of total controlled property, including the open pit, waste rock dumps, tailings impoundment, process facilities, and associated infrastructure. The Ridgecrest Site is situated within the upper watershed of Flint Creek, a tributary of the Clark Fork River, which in turn is a major tributary of the Columbia River system.
The Ridgecrest Mine is an open-pit copper-molybdenum porphyry deposit that has been operational since 1978, when mining commenced under a predecessor operator. TMC acquired the mine through its acquisition of RMH in 2004. Active mining operations ceased on December 31, 2019, and the site is currently in a closure and reclamation phase. The mine employed approximately 340 workers at peak production and currently maintains a reclamation workforce of approximately 45 persons.
The Ridgecrest Site has been proposed for listing on the National Priorities List ("NPL") under CERCLA, but the listing has been deferred pending resolution of this action. In the interim, the site is being addressed under an Administrative Order on Consent ("AOC"), Docket No. CERCLA-08-2022-0039, executed on September 15, 2022, between EPA Region 8 and TM(US)/RMH. The EPA Project Coordinator for the Ridgecrest Site is Dr. Samuel Tesfaye of EPA Region 8.
The principal contaminants of concern at the Ridgecrest Site are associated with acid mine drainage ("AMD") generated by the exposure of sulfide-bearing waste rock and pit walls to oxygen and precipitation. Dissolved copper concentrations in AMD discharges have averaged 47 mg/L, which is approximately 5,400 times the Montana surface-water chronic aquatic life standard of 0.0087 mg/L (based on a hardness of 100 mg/L CaCO₃). Dissolved molybdenum concentrations in AMD discharges have averaged 1.2 mg/L. Selenium concentrations have averaged 0.082 mg/L, and sulfate concentrations have averaged approximately 3,400 mg/L. The site includes a 425-acre tailings impoundment with documented seepage to Flint Creek, which has resulted in elevated metals concentrations in the creek and degradation of aquatic habitat for native westslope cutthroat trout (Oncorhynchus clarkii lewisi), a species of special concern in Montana.
The Complaint alleges the following violations at the Ridgecrest Site: (i) violations of Section 301 of the CWA, 33 U.S.C. § 1311, arising from unpermitted discharges of pollutants, including AMD, from the mine site to Flint Creek and its tributaries, which are waters of the United States; (ii) violations of Section 3004 of RCRA, 42 U.S.C. § 6924, arising from the mismanagement of hazardous waste generated by the solvent-extraction/electrowinning ("SX/EW") circuit at the mine, including improper storage and disposal of spent organic extractant; and (iii) liability under Section 107 of CERCLA, 42 U.S.C. § 9607, for cost recovery of $14.3 million in past response costs incurred by EPA in connection with removal actions conducted at the site between January 2021 and May 2023, which included emergency AMD treatment, construction of interim diversion channels, and stabilization of a failing section of the tailings dam embankment.
2. Gallatin Chemical Works (Gallatin Site)
The Gallatin Chemical Works ("Gallatin" or "Gallatin Site") is located at 8800 Industrial Park Lane, Belgrade, Gallatin County, Montana 59714, approximately eight miles west of Bozeman, Montana. The facility occupies approximately 145 acres within an industrial park zone and has been operational since 1993. The Gallatin Site is operated by TSC and manufactures specialty chemicals used in mineral processing, including flotation reagents, sodium xanthate, and dithiophosphate collectors. The facility currently employs approximately 185 workers.
The Gallatin Site is a RCRA Corrective Action facility operating under RCRA Permit No. MTD098712456. The facility has three identified solid waste management units ("SWMUs") that are subject to corrective action requirements: SWMU-1, a former process wastewater evaporation pond (0.8 acres); SWMU-2, a former chemical drum storage area (0.3 acres); and SWMU-3, an area of subsurface soil contamination beneath a former loading dock (0.15 acres).
The principal contaminants of concern at the Gallatin Site include carbon disulfide ("CS₂") in groundwater, with maximum detected concentrations of 890 µg/L — approximately 89 times the Maximum Contaminant Level ("MCL") of 10 µg/L — as well as xanthate decomposition products and volatile organic compounds ("VOCs"), including toluene and xylene, in subsurface soils at and downgradient of the SWMUs. The CS₂ groundwater plume extends approximately 1,200 feet downgradient of the facility in the direction of the East Gallatin River.
The Complaint alleges the following violations at the Gallatin Site: (i) violations of Sections 3004 and 3005 of RCRA, 42 U.S.C. §§ 6924, 6925, arising from unpermitted hazardous-waste storage in excess of the 90-day generator accumulation limit and from the failure to perform required corrective action at the three SWMUs; and (ii) violations of Section 301 of the CWA, 33 U.S.C. § 1311, arising from fourteen (14) exceedances of the Montana Pollutant Discharge Elimination System ("MPDES") permit limits for CS₂ and total suspended solids ("TSS") at permitted outfalls during the period from January 2021 through June 2024.
3. Bonanza Creek Gold Mine (Bonanza Creek Site)
The Bonanza Creek Gold Mine ("Bonanza Creek" or "Bonanza Creek Site") is located on County Road 447, Mile Marker 12, Lander County, Nevada 89820, approximately 28 miles south of the town of Battle Mountain, Nevada, in the northern Nevada Basin and Range province. The mine encompasses approximately 5,600 acres of mine footprint, with approximately 12,400 acres of total controlled property, including the open pit, heap-leach pads, solution ponds, waste rock dumps, and associated infrastructure. The Bonanza Creek Site is operated by BCM.
The Bonanza Creek Mine is an open-pit heap-leach gold mine that has been in continuous operation since 2001. The mine utilizes a conventional cyanide heap-leach process, in which dilute cyanide solution is applied to crushed ore on lined leach pads to dissolve gold, and the resulting pregnant solution is collected and processed through a carbon-in-column circuit. The mine currently employs approximately 275 workers. Active mining and leaching operations are ongoing, with an estimated remaining mine life of approximately 12 years based on current reserves.
The EPA Project Coordinator for the Bonanza Creek Site is Jennifer Whitfield of EPA Region 9.
The principal contaminants of concern at the Bonanza Creek Site include weak acid dissociable ("WAD") cyanide, with concentrations of 0.62 mg/L measured in the heap-leach pad underdrain, compared to the applicable discharge limit of 0.022 mg/L; mercury, with average concentrations of 12.4 µg/L compared to the applicable water-quality criterion of 0.77 µg/L; and selenium in pit-lake water. The site has also experienced three documented unauthorized releases of process solution from the heap-leach pad through a torn high-density polyethylene ("HDPE") liner to an ephemeral tributary of the Reese River, which occurred on March 17, 2022; August 9, 2022; and January 22, 2023.
The Complaint alleges the following violations at the Bonanza Creek Site: (i) violations of Section 301 of the CWA, 33 U.S.C. § 1311, arising from the three unpermitted discharges of process solution from the heap-leach pad via the torn liner to an ephemeral tributary of the Reese River, a water of the United States; (ii) violations of Section 3004 of RCRA, 42 U.S.C. § 6924, arising from the management of spent heap-leach ore containing residual cyanide as hazardous waste in a manner inconsistent with RCRA requirements; and (iii) violations of the Migratory Bird Treaty Act, 16 U.S.C. § 703, based on 17 documented avian mortalities in solution ponds at the Bonanza Creek facility during the period from 2021 through 2023, including mortalities of migratory waterfowl species protected under the MBTA.
4. Kanawha Bend Chemical Plant (Kanawha Bend Site)
The Kanawha Bend Chemical Plant ("Kanawha Bend" or "Kanawha Bend Site") is located at 2200 Chemical Valley Road, Institute, Kanawha County, West Virginia 25112, in the Kanawha River valley region of central West Virginia commonly known as "Chemical Valley." The facility occupies approximately 78 acres and has been operational since 1985. The Kanawha Bend Site is operated by TSC and manufactures leaching agents and performs sulfuric acid regeneration for use in mining and industrial processes. The facility currently employs approximately 110 workers.
The Kanawha Bend Site is a RCRA Corrective Action facility operating under RCRA Permit No. WVD048823915. The facility includes a former surface impoundment (the "former waste lagoon") that received process wastewater and acid-bearing residuals from approximately 1985 through 2008 and was the subject of a contested closure process.
The principal contaminants of concern at the Kanawha Bend Site include sulfuric acid residuals in soils with pH values as low as 1.8; heavy metals in subsurface soils near the former waste lagoon, including lead at maximum concentrations of 4,200 mg/kg and arsenic at maximum concentrations of 890 mg/kg; and dense nonaqueous-phase liquid ("DNAPL") consisting of chlorinated solvents (principally trichloroethylene ("TCE") and perchloroethylene ("PCE")) in a fractured bedrock aquifer underlying the site. The DNAPL contamination extends to a depth of approximately 85 feet below ground surface and has impacted a portion of the Kanawha River alluvial aquifer.
The Complaint alleges the following violations at the Kanawha Bend Site: (i) violations of Sections 3004 and 3005 of RCRA, 42 U.S.C. §§ 6924, 6925, arising from the failure to properly close the former surface impoundment in accordance with RCRA closure requirements and from the unpermitted treatment of listed hazardous wastes (EPA Hazardous Waste Nos. K062 and D002) at the facility; and (ii) liability under Section 107 of CERCLA, 42 U.S.C. § 9607, for cost recovery of $3.8 million in past response costs incurred by EPA in connection with an emergency response action in June 2020 following a release of sulfuric acid to a tributary of the Kanawha River. The emergency response included containment and neutralization of the acid release, excavation and off-site disposal of contaminated soils, and installation of interim groundwater monitoring wells.
III. LEGAL STANDARD FOR ENTRY OF A CONSENT DECREE
It is well established that a consent decree resolving claims under the federal environmental statutes should be entered by the court when the decree is "fair, reasonable, and consistent with the objectives" of the relevant statutes. United States v. Cannons Eng'g Corp., 899 F.2d 79, 85 (1st Cir. 1990); see also United States v. Montrose Chem. Corp. of Cal., 50 F.3d 741, 746 (9th Cir. 1995); United States v. Charles George Trucking, Inc., 34 F.3d 1081, 1084 (1st Cir. 1994). The court's inquiry encompasses both the procedural and substantive fairness of the proposed decree. Cannons Eng'g, 899 F.2d at 86.
The role of the court in reviewing a proposed consent decree is "limited." Id. at 84. The court is not to "substitute its judgment for that of the parties" or to "try the case" in the context of ruling on a consent decree motion. Id. Rather, the court's function is to ensure that the decree is not "illegal," not "a product of collusion," and not "inequitable" to the interests of parties or non-parties who will be affected by its terms. Id.; Charles George Trucking, 34 F.3d at 1084-85. The court should satisfy itself that the decree represents a reasonable accommodation of the competing interests at stake, including the interests of the plaintiffs in obtaining effective relief, the interests of the defendants in resolving their liability, and the interests of the public in environmental protection and the effective administration of the environmental statutes.
In evaluating whether a consent decree is fair, reasonable, and adequate, the court should consider, among other factors: (1) the strength of the plaintiffs' case and the likelihood of success on the merits; (2) the risks, complexity, and expense of continued litigation; (3) whether the settlement was the product of arm's-length, good-faith negotiations; (4) the adequacy of the relief provided in light of the objectives of the relevant statutes; and (5) whether the settlement treats similarly situated parties equitably. Cannons Eng'g, 899 F.2d at 86-89; Charles George Trucking, 34 F.3d at 1085-86.
The Government is entitled to "broad latitude" and "particular deference" in its assessment of the adequacy of a proposed environmental settlement. Cannons Eng'g, 899 F.2d at 84; see also United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1426 (6th Cir. 1991) (noting that "the executive branch takes the laboring oar in enforcing [environmental] statutes" and that "a district court should not substitute its own judgment for that of the agency"). This deference reflects the "strong judicial policy favoring settlement, particularly in complex environmental litigation." Cannons Eng'g, 899 F.2d at 84.
Procedural fairness requires that the consent decree be subject to public notice and comment before entry. Under 28 U.S.C. § 7003(d), a proposed consent decree in an action brought by the United States under the environmental statutes must be lodged with the court at least 30 days before entry, and notice of the lodging must be published in the Federal Register, providing an opportunity for public comment. The United States is required to consider the comments received and to provide the court with its response to those comments. See 28 U.S.C. § 7003(d); see also Department of Justice Policy on Consent Decrees in Cases Referred by Federal Agencies.
As demonstrated below, the Consent Decree at issue in this case satisfies each of these requirements and should be entered by this Court.
IV. THE CONSENT DECREE IS FAIR, REASONABLE, AND CONSISTENT WITH THE OBJECTIVES OF THE CWA, RCRA, AND CERCLA
The Consent Decree represents a comprehensive resolution of serious environmental violations at four major industrial facilities across three states. Through its combination of mandatory remediation, substantial financial penalties, past-costs reimbursement, supplemental environmental projects, robust financial assurance, and independent monitoring, the Decree achieves the paramount objectives of the CWA, RCRA, and CERCLA — protection of public health and the environment, restoration of contaminated resources, deterrence of future violations, and accountability for past noncompliance. Each of these elements is discussed in turn below.
A. Comprehensive Remediation Requirements
The centerpiece of the Consent Decree is a comprehensive set of remediation obligations requiring the Defendants to investigate, design, and implement remedial measures at all four facilities. The total nominal cost of remediation under the Decree is estimated at $343.5 million, to be expended over periods ranging from 15 to 30 years depending on the site. At a 3% discount rate, the net present value ("NPV") of these remediation obligations is approximately $245.1 million. The remediation program reflects the combined technical judgment of the Government's and Defendants' respective environmental consultants and represents a negotiated outcome that balances the need for effective cleanup against the uncertainties inherent in projecting long-term remediation costs.
The site-specific remediation obligations are as follows:
Ridgecrest Site: $198.6 million over 30 years (NPV: $134.9 million). The Ridgecrest remediation is the largest and most complex component of the Decree, reflecting the scale of the site and the severity of the contamination. The negotiated remediation cost of $198.6 million represents a reasonable compromise between TMC's estimate of $187.5 million (prepared by TMC's environmental consultant, Pinnacle Creek Environmental, LLC, under the direction of Dr. Astrid Bergmann, P.E.) and EPA's estimate of $224.0 million (reviewed and validated by EPA's independent technical expert, Dr. Patricia Voss of Cascade Geosciences, Inc.). The remediation program encompasses acid mine drainage collection and treatment, stabilization and closure of the 425-acre tailings impoundment, waste rock regrading and capping, surface-water and groundwater monitoring, ecological restoration, and long-term post-closure care.
Gallatin Site: $42.8 million over 15 years (NPV: $34.1 million). The Gallatin remediation addresses groundwater contamination by CS₂ and VOCs through a combination of pump-and-treat, in-situ chemical oxidation, soil vapor extraction, and monitored natural attenuation at the three SWMUs, together with facility upgrades to prevent future releases.
Bonanza Creek Site: $63.2 million over 20 years (NPV: $47.1 million). The Bonanza Creek remediation addresses the heap-leach pad liner failure and process-solution releases through comprehensive liner repair and double-liner installation, upgraded solution containment systems, enhanced cyanide destruction and mercury treatment, and long-term pit-lake management.
Kanawha Bend Site: $38.9 million over 20 years (NPV: $29.0 million). The Kanawha Bend remediation addresses the former waste lagoon, acid-impacted soils, heavy-metal contamination, and DNAPL in the fractured bedrock aquifer through a combination of excavation and off-site disposal, in-situ stabilization, DNAPL recovery, and enhanced bioremediation.
The Consent Decree requires the submission of detailed remediation work plans, corrective measures studies, and milestone schedules, with specific deadlines designed to ensure that remedial work commences promptly and proceeds without unreasonable delay. The key milestone deadlines are:
• Ridgecrest Remedial Action Work Plan: due December 14, 2025, with remedy construction commencing no later than June 14, 2027;
• Gallatin Corrective Measures Study: due June 14, 2026;
• Bonanza Creek liner repair and containment: to commence by June 14, 2026;
• Kanawha Bend interim stabilization: to be completed by December 14, 2026.
Additionally, a comprehensive sampling and monitoring plan for all four sites is appended to the Decree as Appendix D. The monitoring plan specifies sampling frequencies, analytical parameters, quality assurance/quality control protocols, data management and reporting requirements, and triggers for adaptive management responses. All sampling results will be reported quarterly to EPA, the relevant state agency, and the independent environmental monitor.
The remediation requirements under the Decree are subject to performance standards — not merely cost caps — meaning that if actual remediation costs exceed the estimates, the Defendants remain obligated to achieve the specified cleanup levels regardless of cost. Conversely, if remediation can be achieved at lower cost, the Defendants benefit from the savings but must nonetheless satisfy all performance milestones and applicable standards.
B. Substantial Civil Penalty
The Consent Decree requires the Defendants to pay a total civil penalty of $31.5 million, allocated among the four sites as follows:
• Ridgecrest: $14.2 million
• Gallatin: $5.8 million
• Bonanza Creek: $7.9 million
• Kanawha Bend: $3.6 million
The civil penalty will be paid in four equal installments of $7.875 million each: the first installment (25%) within 30 days of the Effective Date (i.e., by approximately July 14, 2025, assuming a Decree entry date on or about May 15, 2025); the second installment (25%) at 12 months after the Effective Date; the third installment (25%) at 24 months after the Effective Date; and the fourth and final installment (25%) at 36 months after the Effective Date. Interest will accrue on unpaid installments at the rate specified in 28 U.S.C. § 1961 from the date of each missed payment.
The penalty amount was calculated in accordance with EPA's established penalty policies, including the Clean Water Act Section 309(d) Penalty Policy, the RCRA Civil Penalty Policy, and the Policy on Civil Penalties promulgated by the EPA Office of Enforcement and Compliance Assurance. In determining the appropriate penalty, the United States considered the following statutory and policy factors: (1) the gravity and severity of the violations, including the volume and toxicity of pollutants discharged, the sensitivity of the receiving environment, and the duration of the violations; (2) the economic benefit gained by the Defendants through noncompliance, including avoided costs of treatment, containment, and proper waste management; (3) the Defendants' ability to pay, taking into account TMC's substantial financial resources; (4) the Defendants' history of violations and prior enforcement actions; (5) the Defendants' good faith and cooperation during the investigation and settlement process; and (6) the deterrent effect of the penalty on the Defendants and similarly situated parties.
The $31.5 million civil penalty is consistent with or exceeds the penalty amounts in comparable multi-site mining and chemical-industry enforcement consent decrees entered in recent years. When considered in combination with the $343.5 million in remediation obligations, $18.1 million in past-costs reimbursement, $12.0 million in supplemental environmental projects, and $4.8 million in independent monitoring costs, the total financial commitment of $409.9 million provides a strong deterrent signal to the regulated community.
C. Reimbursement of EPA Past Costs
The Consent Decree requires the Defendants to reimburse EPA a total of $18.1 million in past response costs. These costs consist of two components:
First, $14.3 million in costs incurred by EPA in connection with removal actions at the Ridgecrest Site conducted between January 2021 and May 2023. These removal actions were necessitated by the deteriorating conditions at the site following the cessation of active mining in 2019 and included emergency AMD treatment to prevent catastrophic discharge to Flint Creek, construction of interim diversion channels to redirect contaminated surface water to treatment facilities, and emergency stabilization of a failing section of the tailings dam embankment that posed an imminent risk of structural failure and downstream inundation.
Second, $3.8 million in costs incurred by EPA in connection with an emergency response at the Kanawha Bend Site in June 2020 following a release of sulfuric acid to a tributary of the Kanawha River. The emergency response included the deployment of containment booms and neutralization agents, excavation and off-site disposal of approximately 2,800 cubic yards of contaminated soil, installation of eight interim groundwater monitoring wells, and emergency sampling of the Kanawha River and its tributaries to assess the extent of the release.
The past-costs reimbursement will be paid in a single lump-sum payment within 30 days of the Effective Date of the Consent Decree. The reimbursement amount is based on EPA's documented costs, which were provided to the Defendants during the negotiation process and which the Defendants have accepted as accurate without reservation.
D. Supplemental Environmental Projects (SEPs)
In addition to the remediation, civil penalty, and past-costs reimbursement obligations, the Consent Decree requires the Defendants to fund $12.0 million in three Supplemental Environmental Projects ("SEPs") that will provide tangible environmental and public health benefits to communities directly affected by the violations at issue in this case. The SEPs were developed in consultation with the relevant state agencies and local communities and satisfy the nexus and other requirements of EPA's Supplemental Environmental Projects Policy (2015, as updated).
The three SEPs are as follows:
1. Flint Creek Watershed Restoration Project (Montana): $5.5 million. This project will fund stream-bank stabilization, riparian replanting using native vegetation species, and fish-passage improvements along approximately 12 miles of Flint Creek downstream of the Ridgecrest Mine. The project is designed to restore aquatic habitat degraded by historic and ongoing acid mine drainage and to benefit native westslope cutthroat trout populations. The project was developed in consultation with Montana DEQ, the Montana Department of Fish, Wildlife and Parks, and the Flint Creek Watershed Group, a local watershed conservation organization. Implementation will be overseen by Montana DEQ with technical support from the U.S. Fish and Wildlife Service.
2. Battle Mountain Community Drinking Water Improvement Project (Nevada): $3.5 million. This project will fund the upgrade of the municipal water treatment facility serving the town of Battle Mountain, Lander County, Nevada (population approximately 3,300), the community nearest to the Bonanza Creek Mine. The upgrade will include the installation of advanced filtration and disinfection equipment, replacement of aging distribution infrastructure, and the addition of a standby power generation system. The project was developed in consultation with NV DEP, the Lander County Commission, and the Battle Mountain Water District.
3. Institute Community Air Quality Monitoring Network (West Virginia): $3.0 million. This project will fund the installation and 10-year operation of six ambient air quality monitoring stations in the Institute and South Charleston area of Kanawha County, West Virginia, communities that have historically been disproportionately affected by industrial emissions from Chemical Valley. The monitoring stations will continuously measure particulate matter (PM₂.₅ and PM₁₀), sulfur dioxide (SO₂), volatile organic compounds (VOCs), and hydrogen sulfide (H₂S). Real-time monitoring data will be made publicly available through a dedicated website and mobile application. The project was developed in consultation with WV DEP and the Institute Community Development Corporation.
Each SEP is subject to detailed implementation schedules, performance metrics, and reporting requirements set forth in the Consent Decree. The Defendants are required to complete each SEP within specified timeframes and to submit periodic progress reports to EPA and the relevant state agency.
E. Robust Financial Assurance
The Consent Decree requires the Defendants to establish financial assurance totaling $245.0 million to guarantee the performance of their remediation obligations under the Decree. The financial assurance package consists of two components:
Surety Bond: $165.0 million. Defendants are required to obtain and maintain a surety bond in the amount of $165.0 million, issued by Ironbark Surety of America, Inc. ("Ironbark"), a licensed surety company with an A.M. Best rating of A (Excellent). The bond has been designated as Bond No. ISA-ENV-2025-08934 and carries an annual premium of 1.85%, or approximately $3.0525 million per year. The bond is payable to the United States of America as obligee and may be drawn upon in the event of the Defendants' failure to perform the remediation obligations specified in the Decree.
Remediation Trust Fund: $80.0 million. Defendants are required to establish and fund a remediation trust fund in the amount of $80.0 million, to be held and administered by Larchfield Trust Company, N.A. ("Larchfield"), under Trust Agreement No. LTC-REM-2025-1177. The trust officer designated by Larchfield is David Henshaw, Senior Vice President. The trust fund will be invested in accordance with prudent investment guidelines specified in the Consent Decree, which limit investments to U.S. Treasury securities, investment-grade corporate bonds, and money market instruments. Disbursements from the trust fund require the prior written approval of EPA and are subject to the oversight of the independent environmental monitor.
The deadline for the Defendants to establish the remediation trust fund and post the surety bond is September 12, 2025, which is approximately 90 days after the anticipated Effective Date.
The Consent Decree also includes an annual adjustment mechanism to ensure the adequacy of the financial assurance over the life of the Decree. Specifically, the total amount of required financial assurance will be reviewed annually in conjunction with updated remediation cost estimates. If the updated cost estimates exceed the existing financial assurance by more than 10%, the Defendants must increase the financial assurance to match the updated estimates within 60 days of notification by EPA. The surety bond is subject to annual renewal, and the Defendants must provide evidence of renewal to EPA and the Court no later than 60 days before each renewal date.
F. Independent Environmental Monitor
The Consent Decree provides for the appointment of an independent environmental monitor to oversee the Defendants' compliance with the Decree's requirements. The parties have jointly selected Verdant Analytics, Inc. ("Verdant"), an environmental consulting firm based in Portland, Oregon, to serve as the independent monitor. The senior managing director of Verdant's monitoring practice, Dr. Kamal Osei, Ph.D., P.E., will serve as the lead monitor. Dr. Osei has over 25 years of experience in environmental compliance monitoring, mine site remediation, and Superfund project management.
Verdant will conduct quarterly compliance audits at each of the four sites, evaluating the Defendants' progress against the milestone schedules and performance standards set forth in the Decree. Verdant will also prepare annual public reports summarizing its findings, which will be filed with the Court and made available to the public. The monitor's reports will include assessments of compliance status, identification of any deficiencies or delays, recommendations for corrective actions, and evaluations of the adequacy of the financial assurance.
The estimated cost of the independent monitoring function is approximately $4.8 million over a five-year initial term, or approximately $960,000 per year. The monitoring costs are borne by the Defendants. The monitor's initial five-year term is subject to renewal by agreement of the parties and approval of the Court. The monitor's authority, duties, access rights, and confidentiality obligations are set forth in detail in Appendix E to the Consent Decree.
The independent monitor provides an additional layer of accountability beyond EPA's own oversight, ensuring transparency and public confidence in the implementation of the Decree.
G. Strong Enforcement Mechanisms
The Consent Decree contains robust enforcement mechanisms designed to ensure timely and complete compliance with its terms:
Stipulated Penalties. The Decree provides for stipulated penalties for violations of its requirements, escalating in severity based on the duration of noncompliance: $1,500 per day per violation for the first 30 days of noncompliance; $3,000 per day per violation for days 31 through 60 of noncompliance; and $5,500 per day per violation for each day of noncompliance thereafter. These stipulated penalties are payable upon demand by EPA and are in addition to any other remedies available to the Government, including judicial enforcement. The stipulated penalty amounts are consistent with the provisions of comparable consent decrees in multi-site environmental enforcement actions.
Force Majeure. The Decree includes a force majeure provision that excuses noncompliance to the extent it is caused by circumstances beyond the Defendants' control, such as natural disasters, acts of war, or unforeseen subsurface conditions. To invoke the force majeure provision, the Defendants must provide written notice to EPA within 15 days of the event giving rise to the claim, specifying the nature of the event, the anticipated duration of the delay, and the measures taken to mitigate the delay. The burden of proof lies with the Defendants to demonstrate that the force majeure event was the sole cause of the noncompliance and that reasonable measures were taken to minimize any resulting delay.
Dispute Resolution. The Decree establishes a three-tier dispute resolution mechanism for any disputes arising under the Decree:
(i) Tier 1 — Informal Negotiation: The parties shall first attempt to resolve the dispute through informal negotiation within 30 days of the date on which the dispute arises.
(ii) Tier 2 — Formal EPA Decision: If informal negotiation does not resolve the dispute, EPA shall issue a formal written decision within 30 days of the conclusion of the informal negotiation period. The EPA decision shall set forth the basis for the agency's position and any required compliance actions.
(iii) Tier 3 — Judicial Review: If the Defendants disagree with EPA's formal decision, they may petition this Court for judicial review within 30 days of the date of EPA's decision. The standard of review shall be whether EPA's decision is arbitrary and capricious or otherwise not in accordance with law.
Termination. The Consent Decree provides for site-by-site termination upon joint certification by EPA and the independent environmental monitor that all remedial construction and performance requirements at the relevant site have been completed. No site may be terminated from the Decree sooner than five years after completion of all remedial construction at that site, thereby ensuring a sufficient period of post-construction monitoring to confirm the long-term effectiveness of the remedy.
H. Aggregate Financial Commitment
The total estimated financial obligation imposed on the Defendants under the Consent Decree is as follows:
The magnitude of this financial commitment — nearly $410 million in nominal terms and over $311 million in NPV/cash-equivalent terms — underscores the seriousness and adequacy of the Consent Decree. The Decree imposes a level of financial responsibility on the Defendants that is commensurate with the scope and severity of the environmental violations at issue and reflects the Government's commitment to holding polluters accountable while ensuring effective cleanup.
I. State Co-Plaintiffs' Concurrence
The States of Montana, Nevada, and West Virginia, each acting as co-plaintiffs in this action, have each executed the Consent Decree and concur in this Motion for Entry. The state co-plaintiffs' concurrence reflects their judgment, as the sovereign authorities most directly responsible for the protection of their residents and natural resources, that the Decree is fair, reasonable, and adequate to address the violations within their respective jurisdictions.
Co-Plaintiff Montana, through Assistant Attorney General Annika Hedstrom, consents with respect to the Ridgecrest and Gallatin facilities, both located within the State of Montana. Montana DEQ has been actively involved in the negotiation of the remediation requirements and SEPs applicable to the Montana facilities and is satisfied that the Decree adequately protects Montana's waters, lands, and communities.
Co-Plaintiff Nevada, through Deputy Attorney General Ricardo Fuentes, consents with respect to the Bonanza Creek facility located in Lander County, Nevada. NV DEP participated in the development of the remediation and SEP provisions applicable to the Bonanza Creek Site and concurs that the Decree addresses the violations and community impacts arising from that facility.
Co-Plaintiff West Virginia, through Assistant Attorney General Loretta May Hatcher, consents with respect to the Kanawha Bend facility located in Kanawha County, West Virginia. WV DEP participated in the development of the remediation and SEP provisions applicable to the Kanawha Bend Site and concurs that the Decree addresses the violations and community health concerns arising from that facility.
State joinder and signature pages were executed on February 14, 2025, prior to the lodging of the Consent Decree with this Court on February 19, 2025.
J. Risks of Continued Litigation
While the United States believes that its case against the Defendants is strong and that the evidence supports the alleged violations, continued litigation would involve substantial uncertainty, delay, and expense. The complexity of the factual and technical issues in this case — encompassing four facilities in three states, three federal environmental statutes, multiple categories of contaminants, and contested remedy-selection and cost-allocation questions — would necessitate extensive expert discovery, protracted motion practice, and a trial of potentially several weeks' duration.
The contested remedy costs at the Ridgecrest Site alone illustrate the uncertainties that would attend continued litigation. TMC's environmental consultant estimated the cost of remediation at $187.5 million, while EPA's independent technical expert estimated the cost at $224.0 million — a difference of $36.5 million attributable to differing assumptions about the performance of AMD treatment technologies, the extent of tailings dam repairs required, the duration and intensity of post-closure monitoring, and other technical variables. The negotiated figure of $198.6 million represents a reasonable compromise that accounts for these uncertainties while ensuring that the remedy will achieve the required performance standards.
Moreover, protracted litigation would delay the commencement of remediation work at all four sites, during which time AMD would continue to discharge to Flint Creek, CS₂ would continue to migrate in the Gallatin groundwater aquifer, process-solution releases could recur at Bonanza Creek, and DNAPL contamination would continue to spread in the fractured bedrock aquifer at Kanawha Bend. Each day of delay represents continued environmental harm and continued risk to public health.
The Consent Decree eliminates litigation risk for all parties, accelerates the commencement of environmental cleanup, and provides certain and enforceable relief. The certainty of the Decree's obligations — backed by stipulated penalties, financial assurance, and independent monitoring — far exceeds the uncertain and delayed relief that might be obtained through litigation. The strong public interest in prompt remediation and the risks of continued litigation both weigh decisively in favor of entry of the Decree.
V. RESPONSE TO PUBLIC COMMENTS
A. Summary of Public Comment Process
As required by 28 U.S.C. § 7003(d), the Consent Decree was lodged with this Court on February 19, 2025, and notice of the lodging was published in the Federal Register on that same date. See 90 Fed. Reg. 12,387 (Feb. 19, 2025). The notice specified a 30-day public comment period, which closed on March 21, 2025. The notice also identified the locations where the Consent Decree could be reviewed and the address for submission of public comments.
During the 30-day comment period, the United States received fourteen (14) public comments from a range of commenters, including environmental advocacy organizations, community groups, local government officials, academic researchers, and individual citizens. The comments addressed various aspects of the Consent Decree, including the adequacy of remediation obligations, the appropriateness of the civil penalty, specific concerns about particular sites, and the sufficiency of financial assurance. The United States has carefully considered each comment and responds to the substantive comments below.
B. Summary of Comments Received and Responses
1. Comments Regarding Adequacy of Remediation at Ridgecrest
Summary of Comments. Several commenters asserted that the $198.6 million remediation commitment at the Ridgecrest Site is insufficient to address the full extent of acid mine drainage contamination and tailings seepage. Commenters expressed concern that the negotiated cost was closer to TMC's lower estimate ($187.5 million) than to EPA's higher estimate ($224.0 million) and that the 30-year remediation timeline may prove inadequate given the persistent nature of AMD from sulfide-bearing waste rock. One commenter, a professor of geochemistry at the University of Montana, submitted technical comments suggesting that the AMD treatment costs may be underestimated by as much as 25% if the rate of sulfide oxidation increases as climate change alters precipitation patterns in the Flint Creek watershed.
Response. The United States appreciates the detailed technical concerns raised by commenters regarding the Ridgecrest remediation. The negotiated remediation cost of $198.6 million was the product of extensive technical analysis by both parties' environmental consultants. TMC's consultant, Pinnacle Creek Environmental, LLC, under the direction of Dr. Astrid Bergmann, P.E., prepared a comprehensive remediation cost estimate based on detailed site characterization data, pilot-scale treatment studies, and engineering design analyses. EPA's independent technical expert, Dr. Patricia Voss of Cascade Geosciences, Inc., independently reviewed TMC's estimate and prepared EPA's own estimate of $224.0 million. The difference between the two estimates was attributable primarily to differing assumptions about AMD treatment system capacity requirements, the extent of tailings dam buttressing needed, and the duration of active post-closure water treatment.
The negotiated figure of $198.6 million reflects a reasonable resolution of these technical disputes and is well within the range of the two expert estimates. Importantly, the remediation obligation under the Decree is a performance-based obligation, not a cost cap. If actual remediation costs exceed $198.6 million, the Defendants remain obligated to achieve the performance standards specified in the Decree, including applicable surface-water and groundwater quality standards, regardless of cost. The Decree's adaptive management provisions (Section VIII of the Decree) expressly authorize EPA to require modifications to the remedial approach if monitoring data indicate that the remedy is not achieving the specified performance standards.
Furthermore, the Decree's financial assurance provisions ensure that adequate funding is available to complete remediation even in the event of cost overruns or changes in the Defendants' financial circumstances. The $245.0 million financial assurance package — comprising a $165.0 million surety bond and an $80.0 million remediation trust fund — exceeds the NPV of the total remediation obligation ($245.1 million at a 3% discount rate) and is subject to annual adjustment based on updated cost estimates. The independent environmental monitor (Verdant Analytics, Inc.) will conduct quarterly compliance audits at the Ridgecrest Site, providing an additional mechanism for early identification of any remediation deficiencies.
The remedy as designed addresses all principal contaminants of concern at the Ridgecrest Site, including copper, molybdenum, selenium, and sulfate in AMD discharges, as well as tailings impoundment seepage to Flint Creek. The 30-year remediation timeline reflects the long-term nature of AMD treatment requirements and is consistent with the timelines for comparable mine-site remediation programs. For all of these reasons, the United States believes that the remediation commitment at the Ridgecrest Site is adequate and appropriate.
2. Comments Regarding Civil Penalty Amount
Summary of Comments. Multiple commenters suggested that the $31.5 million total civil penalty is too low given the severity and duration of the violations at all four sites, and that a higher penalty would serve as a more effective deterrent. One commenter, a national environmental advocacy organization, compared the penalty to TMC's FY2023 revenue of approximately C$4.82 billion and argued that a penalty representing less than 1% of annual revenue is insufficient to deter future violations by a company of TMC's size.
Response. The civil penalty of $31.5 million was calculated in accordance with EPA's established penalty policies, which require consideration of multiple statutory and policy factors, including the gravity and duration of the violations, the economic benefit of noncompliance, the violator's ability to pay, the history of violations, good faith efforts to comply, and other relevant factors. The penalty is intended to serve both punitive and deterrent functions, but it must also be fair and proportionate when considered in the context of the overall settlement.
The United States acknowledges that, viewed in isolation, a $31.5 million penalty may appear modest in comparison to TMC's revenue. However, the penalty cannot be evaluated in isolation. It is one component of a comprehensive settlement with a total financial obligation of $409.9 million. The $343.5 million in remediation obligations, $18.1 million in past-costs reimbursement, $12.0 million in supplemental environmental projects, and $4.8 million in independent monitoring costs together impose a substantial financial burden on the Defendants that far exceeds the penalty alone. When the full scope of the Defendants' financial obligations under the Decree is considered, the settlement represents a significant and meaningful deterrent.
Moreover, the $31.5 million civil penalty is consistent with or exceeds the penalty amou

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

PLAINTIFFS' MOTION FOR ENTRY OF CONSENT DECREE

TABLE OF CONTENTS

I. INTRODUCTION

II. BACKGROUND

III. LEGAL STANDARD FOR ENTRY OF A CONSENT DECREE

V. RESPONSE TO PUBLIC COMMENTS

Record

Parties

Dates

Amounts