JOINDER AGREEMENTS AND SIGNATURE PAGES OF STATE CO-PLAINTIFFS
UNITED STATES DISTRICT COURT DISTRICT OF MONTANA MISSOULA DIVISION
JOINDER AGREEMENTS AND SIGNATURE PAGES OF STATE CO-PLAINTIFFS
February 14, 2025
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I. INTRODUCTORY RECITALS
WHEREAS, the United States of America, acting through the United States Department of Justice, Environment and Natural Resources Division, and the United States Environmental Protection Agency, Office of Enforcement and Compliance Assurance (collectively, the "United States"), has negotiated and prepared for lodging a Consent Decree (the "Consent Decree") in the above-captioned action, Civil Action No. 9:24-cv-00087-DWM, pending before the Honorable Donald W. Molloy, Senior United States District Judge, in the United States District Court for the District of Montana, Missoula Division;
WHEREAS, the Consent Decree is to be lodged with the Court on or about February 19, 2025, and is subject to public notice and comment pursuant to 28 C.F.R. § 50.7 and Section 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9613(f), and Section 7003(d) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6973(d);
WHEREAS, the Consent Decree is intended to resolve alleged violations of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251–1387; the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901–6992k; and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601–9675, at four facilities owned and/or operated by Torchlight Mining Corp. and its subsidiaries, Torchlight Mining (U.S.) Inc., Torchlight Specialty Chemicals, Inc., Ridgecrest Mine Holdings, LLC, and Bonanza Creek Mining, LLC (collectively, "Defendants"), located in the States of Montana, Nevada, and West Virginia;
WHEREAS, the four facilities addressed by the Consent Decree are: (1) the Ridgecrest Copper-Molybdenum Mine, located in Granite County, Montana; (2) the Gallatin Chemical Works, located in Gallatin County, Montana; (3) the Bonanza Creek Gold Mine, located in Lander County, Nevada; and (4) the Kanawha Bend Chemical Plant, located in Kanawha County, West Virginia;
WHEREAS, the Consent Decree was negotiated among the United States, acting through the Department of Justice, Environment and Natural Resources Division, Environmental Enforcement Section (lead trial attorney Philip Orenstein; supervising attorney Katherine Rowe-Halpern), and the Environmental Protection Agency, Office of Enforcement and Compliance Assurance (lead case attorney Margaret Coulson), on the one hand, and the Defendants, on the other;
WHEREAS, the States of Montana, Nevada, and West Virginia (collectively, the "State Co-Plaintiffs"), acting through their respective Attorneys General and environmental regulatory agencies, have participated in the negotiation of the Consent Decree as co-plaintiffs and intervenors, and now formally join the Consent Decree pursuant to the terms set forth herein;
WHEREAS, the parties reached an agreement in principle regarding the principal terms of the Consent Decree on July 30, 2024, after extensive multi-party negotiations conducted between March 2023 and July 2024;
WHEREAS, a substantially final agreed text of the Consent Decree was circulated among all parties and completed on February 3, 2025, and an execution version was prepared for lodging on or about February 19, 2025;
WHEREAS, the Consent Decree provides for remediation, civil penalties, supplemental environmental projects, past-costs reimbursement, financial assurance, independent environmental monitoring, stipulated penalties, and dispute resolution, among other provisions, as more fully described therein;
NOW, THEREFORE, the State Co-Plaintiffs, Defendants, and the United States hereby agree to the joinder of the States of Montana, Nevada, and West Virginia as co-plaintiffs to the Consent Decree, on the terms and conditions set forth in these Joinder Agreements and Signature Pages.
II. JOINDER AGREEMENT — STATE OF MONTANA
A. Preamble
The State of Montana, acting by and through the Montana Department of Environmental Quality ("MT DEQ") and the Montana Attorney General's Office, Environmental Bureau (collectively, "Montana"), hereby enters into this Joinder Agreement to formally join the Consent Decree as a co-plaintiff in the above-captioned action.
The Attorney General of the State of Montana is authorized to act on behalf of the State in environmental enforcement matters pursuant to Montana Code Annotated §§ 2-15-501, 75-5-611, 75-10-715, and 82-4-361, and has duly delegated authority to the Environmental Bureau of the Montana Attorney General's Office to negotiate, execute, and implement this Joinder Agreement.
The Lead State Counsel for Montana in this matter is Annika Hedstrom, Assistant Attorney General, Montana Attorney General's Office, Environmental Bureau, 215 North Sanders Street, Helena, Montana 59601, telephone: (406) 444-2026, email: ahedstrom@mt.gov.
B. Recitals Specific to Montana
1. The State of Montana is a co-plaintiff and intervenor with respect to two of the four facilities addressed by the Consent Decree, as described below:
a. Ridgecrest Copper-Molybdenum Mine
The Ridgecrest Copper-Molybdenum Mine (the "Ridgecrest Facility") is located at 14200 Ridgecrest Mine Road, Drummond, Granite County, Montana 59832. The Ridgecrest Facility encompasses an approximately 3,200-acre active mine footprint, situated within a total controlled property of approximately 8,700 acres. The Ridgecrest Facility is an open-pit copper-molybdenum mine that has been in operation since 1978. Active mining operations at the Ridgecrest Facility ceased on December 31, 2019, and the facility is currently in its closure and reclamation phase. The Ridgecrest Facility is owned and operated by Ridgecrest Mine Holdings, LLC, a Montana limited liability company (Montana Secretary of State Entity ID: E1042738), which is a wholly owned subsidiary of Torchlight Mining (U.S.) Inc.
b. Gallatin Chemical Works
The Gallatin Chemical Works (the "Gallatin Facility") is located at 8800 Industrial Park Lane, Belgrade, Gallatin County, Montana 59714. The Gallatin Facility is a 145-acre specialty chemical manufacturing facility that produces flotation reagents, sodium xanthate, and dithiophosphate collectors for use in mineral processing operations. The Gallatin Facility has been operational since 1993 and is currently active. The Gallatin Facility is owned and operated by Torchlight Specialty Chemicals, Inc., a Delaware corporation (Employer Identification Number: 47-3819204), which is a wholly owned subsidiary of Torchlight Mining (U.S.) Inc.
2. Montana's regulatory interests in the facilities described above include, but are not limited to: (i) the protection and enforcement of state surface-water quality standards adopted pursuant to the Montana Water Quality Act, Montana Code Annotated Title 75, Chapter 5; (ii) compliance with and enforcement of Montana Pollutant Discharge Elimination System ("MPDES") permits issued under the authority delegated by the United States Environmental Protection Agency to the State of Montana under the Clean Water Act; (iii) enforcement of hard rock mining reclamation requirements under the Montana Metal Mine Reclamation Act, Montana Code Annotated Title 82, Chapter 4, Part 3; and (iv) state RCRA-authorized corrective action obligations under the Montana Hazardous Waste Act, Montana Code Annotated Title 75, Chapter 10, Part 4, and regulations promulgated thereunder.
3. With respect to the Ridgecrest Facility, the principal contaminants of concern include acid mine drainage containing dissolved copper at an average concentration of 47 mg/L (compared to the Montana chronic aquatic life standard of 0.0087 mg/L for dissolved copper), molybdenum at an average concentration of 1.2 mg/L, selenium at an average concentration of 0.082 mg/L, and sulfate at an average concentration of 3,400 mg/L. The Ridgecrest Facility includes a 425-acre tailings impoundment with documented seepage to Flint Creek, a perennial tributary of the Clark Fork River listed as impaired under Section 303(d) of the Clean Water Act. The magnitude of copper contamination at the Ridgecrest Facility — more than 5,400 times the applicable chronic aquatic life standard — represents a substantial and ongoing threat to aquatic life, public health, and the environment.
4. With respect to the Gallatin Facility, the principal contaminants of concern include carbon disulfide (CS₂) in groundwater at a maximum detected concentration of 890 µg/L (compared to the federal Maximum Contaminant Level ("MCL") of 10 µg/L), xanthate decomposition products, and volatile organic compounds ("VOCs"), including toluene and xylene, in subsurface soils. The Gallatin Facility contains three Solid Waste Management Units ("SWMUs") identified in the facility's RCRA permit. Between January 2021 and June 2024, the Gallatin Facility incurred fourteen (14) MPDES permit exceedances for CS₂ and total suspended solids, as documented in Discharge Monitoring Reports submitted to MT DEQ and the EPA.
5. The Ridgecrest Facility has been proposed for listing on the National Priorities List ("NPL") under CERCLA and is currently being addressed under Administrative Order on Consent, EPA Docket No. CERCLA-08-2022-0039, executed September 15, 2022, between the EPA Region 8, Torchlight Mining (U.S.) Inc., and Ridgecrest Mine Holdings, LLC. The Gallatin Facility is designated as a RCRA Corrective Action facility under RCRA Permit No. MTD098712456, administered by MT DEQ with EPA Region 8 oversight.
C. Terms of Joinder
1. Joinder as Co-Plaintiff. Montana hereby joins as a co-plaintiff to the Consent Decree and agrees to be bound by the terms and conditions thereof as they pertain to the Ridgecrest Facility and the Gallatin Facility. Montana's joinder encompasses all provisions of the Consent Decree applicable to operations, remediation, monitoring, reporting, and enforcement at the Ridgecrest and Gallatin Facilities, including but not limited to the remediation obligations, civil penalty provisions, supplemental environmental project requirements, financial assurance requirements, independent environmental monitoring obligations, stipulated penalty provisions, and dispute resolution mechanisms set forth therein.
2. Consent to Financial Terms. Montana consents to the following financial provisions of the Consent Decree as they apply to the Ridgecrest and Gallatin Facilities:
a. Ridgecrest Remediation Cost. The negotiated cost of remediation for the Ridgecrest Facility is One Hundred Ninety-Eight Million Six Hundred Thousand Dollars ($198,600,000) in nominal terms, to be expended over a period of thirty (30) years. The net present value of the Ridgecrest remediation obligation, calculated at a discount rate of three percent (3%), is One Hundred Thirty-Four Million Nine Hundred Thousand Dollars ($134,900,000).
b. Gallatin Remediation Cost. The negotiated cost of remediation for the Gallatin Facility is Forty-Two Million Eight Hundred Thousand Dollars ($42,800,000) in nominal terms, to be expended over a period of fifteen (15) years. The net present value of the Gallatin remediation obligation, calculated at a discount rate of three percent (3%), is Thirty-Four Million One Hundred Thousand Dollars ($34,100,000).
c. Civil Penalty Allocation. The civil penalty allocation under the Consent Decree for the Ridgecrest Facility is Fourteen Million Two Hundred Thousand Dollars ($14,200,000), and the civil penalty allocation for the Gallatin Facility is Five Million Eight Hundred Thousand Dollars ($5,800,000), for a combined Montana-facility civil penalty total of Twenty Million Dollars ($20,000,000).
d. Ridgecrest Supplemental Environmental Project. The Consent Decree requires the Defendants to fund and implement the Flint Creek Watershed Restoration Project, a supplemental environmental project ("SEP") valued at Five Million Five Hundred Thousand Dollars ($5,500,000). The Flint Creek Watershed Restoration Project shall consist of stream-bank stabilization, riparian replanting, and fish-passage improvements along approximately twelve (12) miles of Flint Creek downstream of the Ridgecrest Facility, as more fully described in Appendix G to the Consent Decree.
3. Consent to Remediation Milestones. Montana consents to the following remediation milestones set forth in the Consent Decree:
a. The deadline for submission of the Ridgecrest Remedial Action Work Plan to the EPA and MT DEQ is December 14, 2025.
b. The deadline for completion of the Gallatin Corrective Measures Study is June 14, 2026.
c. Commencement of Ridgecrest remedy construction shall occur no later than June 14, 2027.
d. The Ridgecrest thirty (30)-year remediation obligation shall conclude no later than June 14, 2055, subject to any extensions or modifications approved by the EPA in consultation with MT DEQ.
4. Reservation of State Rights. Montana reserves the right to enforce its own state environmental statutes and regulations independently, to the extent not inconsistent with the terms of the Consent Decree. Nothing in this Joinder Agreement or in the Consent Decree shall be construed to limit or waive Montana's sovereign authority to adopt, administer, and enforce state environmental laws, regulations, and permit conditions applicable to the Ridgecrest and Gallatin Facilities, including but not limited to the Montana Water Quality Act, the Montana Metal Mine Reclamation Act, the Montana Hazardous Waste Act, and all regulations promulgated thereunder. Montana further reserves the right to pursue state enforcement actions for violations of state law that are not addressed by, or that arise after the entry of, the Consent Decree.
5. Acknowledgment of Financial Assurance. Montana acknowledges the financial assurance package required under the Consent Decree in the aggregate amount of Two Hundred Forty-Five Million Dollars ($245,000,000), consisting of:
a. A surety bond in the amount of One Hundred Sixty-Five Million Dollars ($165,000,000) issued by Ironbark Surety of America, Inc., Bond No. ISA-ENV-2025-08934; and
b. A remediation trust fund in the amount of Eighty Million Dollars ($80,000,000) held by Larchfield Trust Company, N.A., pursuant to Trust Agreement No. LTC-REM-2025-1177.
Montana acknowledges that the financial assurance package secures the Defendants' remediation, corrective action, and penalty obligations across all four facilities addressed by the Consent Decree, and that the terms and conditions governing the financial assurance instruments are set forth in Section XII and Appendix J of the Consent Decree.
6. Acknowledgment of Independent Environmental Monitor. Montana acknowledges the appointment of an independent environmental monitor pursuant to Section XIII of the Consent Decree. The independent environmental monitor is Verdant Analytics, Inc., with Dr. Kamal Osei, Senior Managing Director, serving as the lead monitor. Montana consents to the quarterly compliance audits and annual public reports to be prepared by the independent environmental monitor, as described in Section XIII and Appendix K of the Consent Decree. Montana reserves the right to submit comments and supplemental findings to the independent environmental monitor regarding compliance matters at the Ridgecrest and Gallatin Facilities.
7. Acknowledgment of Dispute Resolution and Stipulated Penalties. Montana acknowledges and consents to the dispute resolution mechanism established in Section XV of the Consent Decree, which provides for: (a) informal negotiation among the parties for a period of thirty (30) days following written notice of a dispute; (b) a formal EPA decision within thirty (30) days following the conclusion of informal negotiation; and (c) the right of any party to petition for judicial review within thirty (30) days of the EPA's formal decision. Montana further acknowledges and consents to the stipulated penalty provisions set forth in Section XIV of the Consent Decree, which provide for stipulated penalties of One Thousand Five Hundred Dollars ($1,500) per day, per violation, for the first thirty (30) days of noncompliance; Three Thousand Dollars ($3,000) per day, per violation, for days thirty-one (31) through sixty (60) of noncompliance; and Five Thousand Five Hundred Dollars ($5,500) per day, per violation, for each day of noncompliance beyond sixty (60) days.
8. State Permit Coordination. Montana acknowledges that state permit coordination will occur in parallel with the Consent Decree requirements, including but not limited to MPDES permits administered by MT DEQ and hard rock mining reclamation permits administered by MT DEQ. Montana further acknowledges that the State's local counsel, Holcroft, Dane & Weiss LLP (Russell Dane, Lead Partner; 45 N. Last Chance Gulch, Suite 600, Helena, Montana 59601), has been coordinating with Calderwood & Harkness LLP (Harrison Wexford, Lead Partner), counsel for the Defendants, regarding state permit matters and the integration of state regulatory requirements with the terms of the Consent Decree.
D. Signature block — State of Montana
STATE OF MONTANA By and through the Montana Attorney General's Office, Environmental Bureau, and the Montana Department of Environmental Quality
By: ________
Name: Annika Hedstrom
Title: Assistant Attorney General, Environmental Bureau
Montana Attorney General's Office
Date: February 14, 2025
Address for Notice:
Annika Hedstrom Assistant Attorney General, Environmental Bureau Montana Attorney General's Office 215 North Sanders Street P.O. Box 201401 Helena, Montana 59620-1401 Telephone: (406) 444-2026
Email: ahedstrom@mt.gov
With a copy to:
Director, Montana Department of Environmental Quality 1520 East Sixth Avenue P.O. Box 200901 Helena, Montana 59620-0901
Attention: Environmental Remediation Division
Signed also on behalf of the Montana Department of Environmental Quality ("MT DEQ"), whose Director has authorized the execution of this Joinder Agreement pursuant to Montana Code Annotated § 75-5-611 and the Interagency Agreement between the Montana Attorney General's Office and MT DEQ, dated March 15, 2023.
III. JOINDER AGREEMENT — STATE OF NEVADA
A. Preamble
The State of Nevada, acting by and through the Nevada Division of Environmental Protection ("NV DEP") and the Nevada Attorney General's Office (collectively, "Nevada"), hereby enters into this Joinder Agreement to formally join the Consent Decree as a co-plaintiff in the above-captioned action.
The Attorney General of the State of Nevada is authorized to act on behalf of the State in environmental enforcement matters pursuant to Nevada Revised Statutes §§ 228.170, 445A.700, and 519A.290, and has duly delegated authority to the Nevada Attorney General's Office to negotiate, execute, and implement this Joinder Agreement.
The Lead State Counsel for Nevada in this matter is Ricardo Fuentes, Deputy Attorney General, Nevada Attorney General's Office, 100 North Carson Street, Carson City, Nevada 89701, telephone: (775) 684-1232, email: rfuentes@ag.nv.gov.
B. Recitals Specific to Nevada
1. The State of Nevada is a co-plaintiff and intervenor with respect to one of the four facilities addressed by the Consent Decree, as described below:
a. Bonanza Creek Gold Mine
The Bonanza Creek Gold Mine (the "Bonanza Creek Facility") is located at County Road 447, Mile Marker 12, Lander County, Nevada 89820, in an unincorporated area approximately twenty-eight (28) miles south of Battle Mountain, Nevada. The Bonanza Creek Facility encompasses an approximately 5,600-acre active mine footprint, situated within a total controlled property of approximately 12,400 acres. The Bonanza Creek Facility is an open-pit heap-leach gold mine that has been operational since 2001 and at which active mining operations are ongoing. The Bonanza Creek Facility is owned and operated by Bonanza Creek Mining, LLC, a Nevada limited liability company (Nevada Secretary of State Entity No.: E0518294731), which is a wholly owned subsidiary of Torchlight Mining (U.S.) Inc.
2. Nevada's regulatory interests in the Bonanza Creek Facility include, but are not limited to: (i) state water pollution control under the Nevada Water Pollution Control Law, Nevada Revised Statutes Chapter 445A; (ii) mining reclamation under the Nevada Reclamation of Land Subject to Mining Operations or Exploration, Nevada Revised Statutes Chapter 519A; and (iii) groundwater protection under the Nevada Underground Injection Control Program and applicable state groundwater quality standards.
3. With respect to the Bonanza Creek Facility, the principal contaminants of concern include weak-acid dissociable ("WAD") cyanide at a concentration of 0.62 mg/L in the heap-leach pad underdrain (compared to the applicable discharge limit of 0.022 mg/L), mercury at an average concentration of 12.4 µg/L (compared to the applicable water-quality criterion of 0.77 µg/L), and selenium in pit-lake water. The concentrations of WAD cyanide in the heap-leach pad underdrain are approximately twenty-eight (28) times the applicable discharge limit, and the concentrations of mercury are approximately sixteen (16) times the applicable water-quality criterion, indicating significant and persistent exceedances of applicable environmental standards.
4. Three documented process-solution releases from the heap-leach pad to an ephemeral tributary of the Reese River occurred through a torn geosynthetic liner at the Bonanza Creek Facility on the following dates: March 17, 2022; August 9, 2022; and January 22, 2023. Each release resulted in the unpermitted discharge of process solution containing elevated concentrations of cyanide and mercury to waters of the United States, in violation of the Clean Water Act, and caused or contributed to environmental contamination of soils, sediments, and surface water in the affected ephemeral drainage.
5. Between 2021 and 2023, seventeen (17) avian mortalities were documented in the Bonanza Creek Facility's process-solution ponds, including mortalities of species protected under the Migratory Bird Treaty Act, 16 U.S.C. §§ 703–712. Although the Consent Decree does not resolve potential claims under the Migratory Bird Treaty Act, the avian mortality data formed part of the factual basis for the enforcement negotiations and underscores the ecological significance of the contamination at the Bonanza Creek Facility.
6. The Bonanza Creek Facility is subject to RCRA Corrective Action and Clean Water Act enforcement by the EPA, Region 9. The EPA Project Coordinator for the Bonanza Creek Facility is Jennifer Whitfield, EPA Region 9, 75 Hawthorne Street, San Francisco, California 94105.
C. Terms of Joinder
1. Joinder as Co-Plaintiff. Nevada hereby joins as a co-plaintiff to the Consent Decree and agrees to be bound by the terms and conditions thereof as they pertain to the Bonanza Creek Facility. Nevada's joinder encompasses all provisions of the Consent Decree applicable to operations, remediation, monitoring, reporting, and enforcement at the Bonanza Creek Facility, including but not limited to the remediation obligations, civil penalty provisions, supplemental environmental project requirements, financial assurance requirements, independent environmental monitoring obligations, stipulated penalty provisions, and dispute resolution mechanisms set forth therein.
2. Consent to Financial Terms. Nevada consents to the following financial provisions of the Consent Decree as they apply to the Bonanza Creek Facility:
a. Bonanza Creek Remediation Cost. The negotiated cost of remediation for the Bonanza Creek Facility is Sixty-Three Million Two Hundred Thousand Dollars ($63,200,000) in nominal terms, to be expended over a period of twenty (20) years. The net present value of the Bonanza Creek remediation obligation, calculated at a discount rate of three percent (3%), is Forty-Seven Million One Hundred Thousand Dollars ($47,100,000).
b. Civil Penalty Allocation. The civil penalty allocation under the Consent Decree for the Bonanza Creek Facility is Seven Million Nine Hundred Thousand Dollars ($7,900,000).
c. Bonanza Creek Supplemental Environmental Project. The Consent Decree requires the Defendants to fund and implement the Battle Mountain Community Drinking Water Improvement Project, a supplemental environmental project ("SEP") valued at Three Million Five Hundred Thousand Dollars ($3,500,000). The Battle Mountain Community Drinking Water Improvement Project shall consist of an upgrade of the municipal water treatment facility in Battle Mountain, Lander County, Nevada, as more fully described in Appendix H to the Consent Decree.
3. Consent to Remediation Milestones. Nevada consents to the following remediation milestones set forth in the Consent Decree:
a. The deadline for commencement of liner repair and containment measures at the Bonanza Creek Facility is June 14, 2026.
b. Additional interim and final milestones for the Bonanza Creek Facility are set forth in Sections VIII and IX and Appendix E of the Consent Decree, to which Nevada consents.
4. Reservation of State Rights. Nevada reserves the right to enforce its own state environmental statutes and regulations independently, to the extent not inconsistent with the terms of the Consent Decree. Nothing in this Joinder Agreement or in the Consent Decree shall be construed to limit or waive Nevada's sovereign authority to adopt, administer, and enforce state environmental laws, regulations, and permit conditions applicable to the Bonanza Creek Facility, including but not limited to the Nevada Water Pollution Control Law, the Nevada mining reclamation statutes, and all regulations promulgated thereunder. Nevada further reserves the right to pursue state enforcement actions for violations of state law that are not addressed by, or that arise after the entry of, the Consent Decree.
5. Acknowledgment of Financial Assurance, Independent Monitor, Dispute Resolution, and Stipulated Penalties. Nevada acknowledges and consents to the financial assurance package required under the Consent Decree in the aggregate amount of Two Hundred Forty-Five Million Dollars ($245,000,000), consisting of a surety bond of One Hundred Sixty-Five Million Dollars ($165,000,000) issued by Ironbark Surety of America, Inc. (Bond No. ISA-ENV-2025-08934) and a remediation trust fund of Eighty Million Dollars ($80,000,000) held by Larchfield Trust Company, N.A. (Trust Agreement No. LTC-REM-2025-1177), as more fully described in Section II.C.5 of this document (Montana Joinder) and in Section XII and Appendix J of the Consent Decree. Nevada further acknowledges and consents to the appointment of the independent environmental monitor (Verdant Analytics, Inc., Dr. Kamal Osei, Senior Managing Director), the quarterly compliance audits and annual public reports, the dispute resolution mechanism (informal negotiation 30 days, formal EPA decision 30 days, judicial review petition within 30 days), and the stipulated penalty provisions ($1,500 per day per violation for the first 30 days; $3,000 per day for days 31 through 60; $5,500 per day thereafter), all as described in Sections XIII, XIV, and XV of the Consent Decree and as summarized in Section II.C.6 and II.C.7 of this document.
6. State Permit Coordination. Nevada acknowledges that state permit coordination will occur in parallel with the Consent Decree requirements, including but not limited to water pollution control permits and mining reclamation permits administered by NV DEP. Nevada further acknowledges that the State's local counsel, sagebrush Law Group, PLLC (Denise Quartaro, Lead Partner; 3960 Howard Hughes Parkway, Suite 500, Las Vegas, Nevada 89169), has been coordinating with Calderwood & Harkness LLP (Harrison Wexford, Lead Partner), counsel for the Defendants, regarding state permit matters and the integration of state regulatory requirements with the terms of the Consent Decree.
D. Signature block — State of Nevada
STATE OF NEVADA By and through the Nevada Attorney General's Office and the Nevada Division of Environmental Protection
By: ________
Name: Ricardo Fuentes
Title: Deputy Attorney General
Nevada Attorney General's Office
Date: February 14, 2025
Address for Notice:
Ricardo Fuentes Deputy Attorney General Nevada Attorney General's Office 100 North Carson Street Carson City, Nevada 89701 Telephone: (775) 684-1232
Email: rfuentes@ag.nv.gov
With a copy to:
Administrator, Nevada Division of Environmental Protection 901 South Stewart Street, Suite 4001 Carson City, Nevada 89701
Attention: Bureau of Mining Regulation and Reclamation
Signed also on behalf of the Nevada Division of Environmental Protection ("NV DEP"), whose Administrator has authorized the execution of this Joinder Agreement pursuant to Nevada Revised Statutes § 445A.700 and the Interagency Cooperation Agreement between the Nevada Attorney General's Office and NV DEP, dated June 1, 2023.
IV. JOINDER AGREEMENT — STATE OF WEST VIRGINIA
A. Preamble
The State of West Virginia, acting by and through the West Virginia Department of Environmental Protection ("WV DEP") and the West Virginia Attorney General's Office (collectively, "West Virginia"), hereby enters into this Joinder Agreement to formally join the Consent Decree as a co-plaintiff in the above-captioned action.
The Attorney General of the State of West Virginia is authorized to act on behalf of the State in environmental enforcement matters pursuant to West Virginia Code §§ 5-3-2, 22-5-11, 22-18-6, and 22-22-5, and has duly delegated authority to the West Virginia Attorney General's Office to negotiate, execute, and implement this Joinder Agreement.
The Lead State Counsel for West Virginia in this matter is Loretta May Hatcher, Assistant Attorney General, West Virginia Attorney General's Office, State Capitol, Building 1, Room E-26, 1900 Kanawha Boulevard East, Charleston, West Virginia 25305, telephone: (304) 558-2021, email: loretta.m.hatcher@wvago.gov.
B. Recitals Specific to West Virginia
1. The State of West Virginia is a co-plaintiff and intervenor with respect to one of the four facilities addressed by the Consent Decree, as described below:
a. Kanawha Bend Chemical Plant
The Kanawha Bend Chemical Plant (the "Kanawha Bend Facility") is located at 2200 Chemical Valley Road, Institute, Kanawha County, West Virginia 25112. The Kanawha Bend Facility is a 78-acre chemical manufacturing facility engaged in the production of leaching agents and sulfuric acid regeneration. The Kanawha Bend Facility has been operational since 1985 and is currently active. The Kanawha Bend Facility is owned and operated by Torchlight Specialty Chemicals, Inc., a Delaware corporation (Employer Identification Number: 47-3819204), which is a wholly owned subsidiary of Torchlight Mining (U.S.) Inc.
2. West Virginia's regulatory interests in the Kanawha Bend Facility include, but are not limited to: (i) state National Pollutant Discharge Elimination System ("NPDES") permits administered under the West Virginia Water Pollution Control Act, West Virginia Code Chapter 22, Article 11; (ii) the West Virginia RCRA state-authorized hazardous waste program under the West Virginia Hazardous Waste Management Act, West Virginia Code Chapter 22, Article 18; and (iii) groundwater protection under the West Virginia Groundwater Protection Act, West Virginia Code Chapter 22, Article 12.
3. With respect to the Kanawha Bend Facility, the principal contaminants of concern include sulfuric acid residuals in soils with pH values as low as 1.8 in near-surface and subsurface soils adjacent to the facility's former waste lagoon, heavy metals including lead at a maximum detected concentration of 4,200 mg/kg and arsenic at a maximum detected concentration of 890 mg/kg in subsurface soils near the former waste lagoon, and dense non-aqueous phase liquid ("DNAPL") consisting of chlorinated solvents in the fractured bedrock aquifer underlying the facility. The presence of DNAPL in fractured bedrock presents particular remediation challenges due to the heterogeneous distribution of contaminants along fracture networks and the difficulty of achieving effective recovery in such geological settings.
4. The Kanawha Bend Facility holds RCRA Permit No. WVD048823915, administered by WV DEP under the state RCRA-authorized hazardous waste program, with EPA Region 3 oversight.
5. On June 14, 2020, a release of sulfuric acid from the Kanawha Bend Facility to a tributary of the Kanawha River triggered an EPA emergency response action. The EPA emergency response costs associated with this release totaled Three Million Eight Hundred Thousand Dollars ($3,800,000). The United States seeks reimbursement of these costs under Section 107 of CERCLA, 42 U.S.C. § 9607.
6. The alleged violations of federal environmental law at the Kanawha Bend Facility include:
a. Violations of RCRA Section 3004, 42 U.S.C. § 6924, and RCRA Section 3005, 42 U.S.C. § 6925, arising from the failure to properly close a former surface impoundment and the unpermitted treatment of listed hazardous wastes K062 (spent pickle liquor from steel finishing operations used in the sulfuric acid regeneration process) and D002 (corrosive hazardous waste); and
b. Cost recovery under CERCLA Section 107, 42 U.S.C. § 9607, for the Three Million Eight Hundred Thousand Dollar ($3,800,000) EPA emergency response associated with the June 14, 2020 sulfuric acid release.
7. EPA Region 3 is the regulatory office with primary federal oversight responsibility for the Kanawha Bend Facility.
C. Terms of Joinder
1. Joinder as Co-Plaintiff. West Virginia hereby joins as a co-plaintiff to the Consent Decree and agrees to be bound by the terms and conditions thereof as they pertain to the Kanawha Bend Facility. West Virginia's joinder encompasses all provisions of the Consent Decree applicable to operations, remediation, monitoring, reporting, and enforcement at the Kanawha Bend Facility, including but not limited to the remediation obligations, civil penalty provisions, supplemental environmental project requirements, financial assurance requirements, independent environmental monitoring obligations, stipulated penalty provisions, and dispute resolution mechanisms set forth therein.
2. Consent to Financial Terms. West Virginia consents to the following financial provisions of the Consent Decree as they apply to the Kanawha Bend Facility:
a. Kanawha Bend Remediation Cost. The negotiated cost of remediation for the Kanawha Bend Facility is Thirty-Eight Million Nine Hundred Thousand Dollars ($38,900,000) in nominal terms, to be expended over a period of twenty (20) years. The net present value of the Kanawha Bend remediation obligation, calculated at a discount rate of three percent (3%), is Twenty-Nine Million Dollars ($29,000,000).
b. Civil Penalty Allocation. The civil penalty allocation under the Consent Decree for the Kanawha Bend Facility is Three Million Six Hundred Thousand Dollars ($3,600,000).
c. Kanawha Bend Supplemental Environmental Project. The Consent Decree requires the Defendants to fund and implement the Institute Community Air Quality Monitoring Network, a supplemental environmental project ("SEP") valued at Three Million Dollars ($3,000,000). The Institute Community Air Quality Monitoring Network shall consist of the installation and ten (10)-year operation of six (6) ambient air quality monitoring stations in the Institute and South Charleston areas of Kanawha County, West Virginia, as more fully described in Appendix I to the Consent Decree.
d. EPA Past-Costs Reimbursement. The portion of the EPA past-costs reimbursement attributable to the Kanawha Bend Facility under the Consent Decree is Three Million Eight Hundred Thousand Dollars ($3,800,000), representing the emergency response costs incurred by the EPA in connection with the June 14, 2020 sulfuric acid release. This amount is a portion of the total EPA past-costs reimbursement of Eighteen Million One Hundred Thousand Dollars ($18,100,000) required under the Consent Decree, the balance of Fourteen Million Three Hundred Thousand Dollars ($14,300,000) being attributable to the Ridgecrest Facility.
3. Consent to Remediation Milestones. West Virginia consents to the following remediation milestones set forth in the Consent Decree:
a. The deadline for completion of interim stabilization measures at the Kanawha Bend Facility is December 14, 2026.
b. Additional interim and final milestones for the Kanawha Bend Facility are set forth in Sections VIII and IX and Appendix F of the Consent Decree, to which West Virginia consents.
4. Reservation of State Rights. West Virginia reserves the right to enforce its own state environmental statutes and regulations independently, to the extent not inconsistent with the terms of the Consent Decree. Nothing in this Joinder Agreement or in the Consent Decree shall be construed to limit or waive West Virginia's sovereign authority to adopt, administer, and enforce state environmental laws, regulations, and permit conditions applicable to the Kanawha Bend Facility, including but not limited to the West Virginia Water Pollution Control Act, the West Virginia Hazardous Waste Management Act, the West Virginia Groundwater Protection Act, and all regulations promulgated thereunder. West Virginia further reserves the right to pursue state enforcement actions for violations of state law that are not addressed by, or that arise after the entry of, the Consent Decree.
5. Acknowledgment of Financial Assurance, Independent Monitor, Dispute Resolution, and Stipulated Penalties. West Virginia acknowledges and consents to the financial assurance package required under the Consent Decree in the aggregate amount of Two Hundred Forty-Five Million Dollars ($245,000,000), consisting of a surety bond of One Hundred Sixty-Five Million Dollars ($165,000,000) issued by Ironbark Surety of America, Inc. (Bond No. ISA-ENV-2025-08934) and a remediation trust fund of Eighty Million Dollars ($80,000,000) held by Larchfield Trust Company, N.A. (Trust Agreement No. LTC-REM-2025-1177), as more fully described in Section XII and Appendix J of the Consent Decree. West Virginia further acknowledges and consents to the appointment of the independent environmental monitor (Verdant Analytics, Inc., Dr. Kamal Osei, Senior Managing Director), the quarterly compliance audits and annual public reports, the dispute resolution mechanism (informal negotiation 30 days, formal EPA decision 30 days, judicial review petition within 30 days), and the stipulated penalty provisions ($1,500 per day per violation for the first 30 days; $3,000 per day for days 31 through 60; $5,500 per day thereafter), all as described in Sections XIII, XIV, and XV of the Consent Decree.
6. State Permit Coordination. West Virginia acknowledges that state permit coordination will occur in parallel with the Consent Decree requirements, including but not limited to NPDES permits and RCRA state-authorized permits administered by WV DEP. West Virginia further acknowledges that the State's local counsel, Baxter, Tully & Crane PLLC (Nathan Tully, Lead Partner; 500 Lee Street East, Suite 1100, Charleston, West Virginia 25301), has been coordinating with Calderwood & Harkness LLP (Harrison Wexford, Lead Partner), counsel for the Defendants, regarding state permit matters and the integration of state regulatory requirements with the terms of the Consent Decree.
D. Signature block — State of West Virginia
STATE OF WEST VIRGINIA By and through the West Virginia Attorney General's Office and the West Virginia Department of Environmental Protection
By: ________
Name: Loretta May Hatcher
Title: Assistant Attorney General
West Virginia Attorney General's Office
Date: February 14, 2025
Address for Notice:
Loretta May Hatcher Assistant Attorney General West Virginia Attorney General's Office State Capitol, Building 1, Room E-26 1900 Kanawha Boulevard East Charleston, West Virginia 25305 Telephone: (304) 558-2021
Email: loretta.m.hatcher@wvago.gov
With a copy to:
Secretary, West Virginia Department of Environmental Protection 601 57th Street, S.E. Charleston, West Virginia 25304
Attention: Division of Water and Waste Management
Signed also on behalf of the West Virginia Department of Environmental Protection ("WV DEP"), whose Secretary has authorized the execution of this Joinder Agreement pursuant to West Virginia Code § 22-1-6 and the Memorandum of Understanding between the West Virginia Attorney General's Office and WV DEP, dated September 8, 2023.
V. GENERAL PROVISIONS APPLICABLE TO ALL STATE CO-PLAINTIFFS
A. Representations and Warranties
1. Each State Co-Plaintiff represents and warrants that it has full legal authority to enter into this Joinder Agreement and to bind the State to the terms of the Consent Decree as they pertain to the facilities located within its jurisdiction. Each State Co-Plaintiff further represents and warrants that the execution, delivery, and performance of this Joinder Agreement have been duly authorized by all necessary governmental action, including but not limited to the authorization of the respective State Attorney General and the respective state environmental regulatory agency.
2. Each State Co-Plaintiff represents and warrants that the undersigned individual is duly authorized to execute this Joinder Agreement on behalf of the State and its participating agencies, and that the execution of this Joinder Agreement constitutes a valid and binding obligation of the State, enforceable in accordance with its terms, subject to applicable principles of sovereign immunity.
3. Each State Co-Plaintiff represents and warrants that, to the best of its knowledge, there are no pending or threatened actions, proceedings, investigations, or claims that would materially impair the ability of the State to perform its obligations under this Joinder Agreement or to participate as a co-plaintiff in the Consent Decree.
B. Notices
All notices to the State Co-Plaintiffs under the Consent Decree and these Joinder Agreements shall be in writing and shall be deemed duly given when delivered personally, sent by certified mail (return receipt requested), or sent by overnight courier service to the addresses set forth below:
To Montana:
Annika Hedstrom Assistant Attorney General, Environmental Bureau Montana Attorney General's Office 215 North Sanders Street P.O. Box 201401 Helena, Montana 59620-1401 Telephone: (406) 444-2026
Email: ahedstrom@mt.gov
With a copy to:
Director, Montana Department of Environmental Quality 1520 East Sixth Avenue P.O. Box 200901 Helena, Montana 59620-0901
Attention: Environmental Remediation Division
To Nevada:
Ricardo Fuentes Deputy Attorney General Nevada Attorney General's Office 100 North Carson Street Carson City, Nevada 89701 Telephone: (775) 684-1232
Email: rfuentes@ag.nv.gov
With a copy to:
Administrator, Nevada Division of Environmental Protection 901 South Stewart Street, Suite 4001 Carson City, Nevada 89701
Attention: Bureau of Mining Regulation and Reclamation
To West Virginia:
Loretta May Hatcher Assistant Attorney General West Virginia Attorney General's Office State Capitol, Building 1, Room E-26 1900 Kanawha Boulevard East Charleston, West Virginia 25305 Telephone: (304) 558-2021
Email: loretta.m.hatcher@wvago.gov
With a copy to:
Secretary, West Virginia Department of Environmental Protection 601 57th Street, S.E. Charleston, West Virginia 25304
Attention: Division of Water and Waste Management
To Defendants:
Miriam Soo-Hwan Park General Counsel Torchlight Mining Corp. 750 Copper Ridge Boulevard, Suite 200 Helena, Montana 59601 Telephone: (406) 502-7800
Email: mpark@torchlightmining.com
With a copy to:
Harrison Wexford Calderwood & Harkness LLP 1350 I Street, N.W., Suite 900 Washington, D.C. 20005 Telephone: (202) 555-4100
Email: hwexford@calderwoodharkness.com
Any party may change its address for notice purposes by providing written notice of such change to all other parties in accordance with this Section V.B.
C. Relationship to Federal Plaintiffs
The State Co-Plaintiffs join the Consent Decree as co-plaintiffs alongside the United States of America, acting through the Department of Justice, Environment and Natural Resources Division, Environmental Enforcement Section (lead trial attorney Philip Orenstein; supervising attorney Katherine Rowe-Halpern), and the Environmental Protection Agency, Office of Enforcement and Compliance Assurance (lead case attorney Margaret Coulson).
The States acknowledge that the EPA retains lead oversight authority over the implementation and enforcement of the Consent Decree, including without limitation oversight of remedial actions, corrective measures, monitoring and reporting requirements, and approval of deliverables. The state environmental agencies — MT DEQ, NV DEP, and WV DEP — exercise concurrent authority over state-specific permit and regulatory obligations at their respective facilities and shall coordinate with the EPA in the exercise of such authority, consistent with the terms of the Consent Decree and applicable federal-state cooperative agreements.
Nothing in this Section V.C shall be construed to subordinate the States' independent enforcement authorities reserved under Section II.C.4 (Montana), Section III.C.4 (Nevada), and Section IV.C.4 (West Virginia) of these Joinder Agreements.
D. Effective Date
These Joinder Agreements shall become effective upon entry of the Consent Decree by the Court. The target date for entry of the Consent Decree by the Court is May 15, 2025, subject to the completion of the public notice and comment process required by 28 C.F.R. § 50.7 and applicable provisions of CERCLA and RCRA.
The Effective Date of the Consent Decree, as defined in Section IV of the Consent Decree, is the date thirty (30) days following entry of the Consent Decree by the Court. Based on the target entry date of May 15, 2025, the anticipated Effective Date of the Consent Decree is June 14, 2025.
E. Counterparts
These Joinder Agreements may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Facsimile or electronically transmitted signatures shall be deemed to have the same force and effect as original signatures for purposes of execution and enforcement of these Joinder Agreements.
VI. DEFENDANT ACKNOWLEDGMENT OF STATE JOINDERS
The Defendants — Torchlight Mining Corp., Torchlight Mining (U.S.) Inc., Torchlight Specialty Chemicals, Inc., Ridgecrest Mine Holdings, LLC, and Bonanza Creek Mining, LLC — hereby acknowledge and consent to the joinder of the States of Montana, Nevada, and West Virginia as co-plaintiffs to the Consent Decree, on the terms and conditions set forth in these Joinder Agreements.
The Defendants acknowledge that the State Co-Plaintiffs have participated in the negotiation of the Consent Decree and that the financial obligations, remediation requirements, supplemental environmental projects, and other terms of the Consent Decree were negotiated with the full knowledge and involvement of the State Co-Plaintiffs. The Defendants further acknowledge that the State Co-Plaintiffs' joinder does not impose any additional obligations on the Defendants beyond those set forth in the Consent Decree.
The undersigned is authorized to execute this acknowledgment on behalf of all Defendants pursuant to the Resolution of the Board of Directors of Torchlight Mining Corp. dated February 10, 2025, which authorized Miriam Soo-Hwan Park, General Counsel, to execute the Consent Decree and all ancillary documents, including these Joinder Agreements, on behalf of Torchlight Mining Corp. and its subsidiaries.
TORCHLIGHT MINING CORP. on behalf of itself and its subsidiaries: Torchlight Mining (U.S.) Inc. Torchlight Specialty Chemicals, Inc. Ridgecrest Mine Holdings, LLC Bonanza Creek Mining, LLC
By: ________
Name: Miriam Soo-Hwan Park
Title: General Counsel, Torchlight Mining Corp.
(Authorized Signatory per TMC Board Resolution dated February 10, 2025)
Date: February 14, 2025