MEMORANDUM
PRIVILEGED & CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION
TO: Miriam Soo-Hwan Park, General Counsel, Torchlight Mining Corp. Gareth Linford, VP, Environmental Health & Safety, Torchlight Mining Corp.
FROM: Harrison Wexford, Partner, Calderwood & Harkness LLP Elliot Nguyen, Associate, Calderwood & Harkness LLP Grace Nakamura, Associate, Calderwood & Harkness LLP
CC: Russell Dane, Holcroft, Dane & Weiss LLP Denise Quartaro, sagebrush Law Group, PLLC Nathan Tully, Baxter, Tully & Crane PLLC Beatrice Holloway, Calderwood & Harkness LLP
DATE: February 8, 2025
RE: State Permit Coordination and Parallel State Compliance Obligations — Interaction with Federal Consent Decree (Civil Action No. 9:24-cv-00087-DWM)
MATTER NO.: 1039-00003
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I. Executive Summary
The purpose of this memorandum is to analyze the state environmental permit obligations of Torchlight Mining Corp. ("TMC") and its subsidiaries across Montana, Nevada, and West Virginia that operate in parallel to the federal consent decree currently being negotiated with the United States Environmental Protection Agency ("EPA"), the United States Department of Justice ("DOJ"), and the three state co-plaintiffs in United States of America and State of Montana v. Torchlight Mining Corp. et al., Civil Action No. 9:24-cv-00087-DWM, pending in the United States District Court for the District of Montana, Missoula Division, before the Honorable Donald W. Molloy (the "Consent Decree"). This memorandum is prepared at the request of TMC's General Counsel to assist in strategic planning and compliance coordination as the Consent Decree proceeds through the lodging, public comment, and judicial approval process.
The Consent Decree implicates four TMC-operated sites across three states:
1. Ridgecrest Copper-Molybdenum Mine — Drummond, Granite County, Montana
2. Gallatin Chemical Works — Belgrade, Gallatin County, Montana
3. Bonanza Creek Gold Mine — Lander County, Nevada
4. Kanawha Bend Chemical Plant — Institute, Kanawha County, West Virginia
Each of these sites is subject to a complex web of federal and state environmental permits, regulatory orders, and compliance obligations. The Consent Decree, while comprehensive in its federal regulatory scope, does not preempt, replace, or supersede the independently issued state environmental permits that govern operations, discharges, waste management, and reclamation at each of these four facilities. TMC and its subsidiaries — Torchlight Mining (U.S.) Inc., Torchlight Specialty Chemicals, Inc., Ridgecrest Mine Holdings, LLC, and Bonanza Creek Mining, LLC — must maintain independent compliance with all state environmental permits. In certain instances, as detailed below, state permits impose obligations that are more stringent than the corresponding requirements of the Consent Decree, and the failure to recognize and comply with those more stringent requirements could result in separate state enforcement actions, additional state civil penalties, and potentially conflicting remediation schedules.
The key conclusion of this memorandum is that proactive and sustained coordination with the state co-plaintiffs — specifically, Annika Hedstrom of the Montana Attorney General's Office and the Montana Department of Environmental Quality ("MT DEQ"), Ricardo Fuentes of the Nevada Attorney General's Office and the Nevada Division of Environmental Protection ("NV DEP"), and Loretta May Hatcher of the West Virginia Attorney General's Office and the West Virginia Department of Environmental Protection ("WV DEP") — is essential. TMC must also rely on its local counsel teams: Holcroft, Dane & Weiss LLP ("HDW") in Montana, sagebrush Law Group, PLLC ("Sagebrush") in Nevada, and Baxter, Tully & Crane PLLC ("BTC") in West Virginia. These local counsel relationships are critical to avoid duplicative obligations, prevent inconsistent schedules, and avert inadvertent noncompliance with state requirements that could undermine the broader compliance framework established by the Consent Decree.
This memorandum provides a comprehensive overview of the three-state regulatory architecture applicable to TMC's operations, identifying the specific state permit obligations at each site, the intersections and potential conflicts with the Consent Decree, and the affirmative steps TMC and its counsel must take to coordinate federal and state compliance. Part II provides the factual and legal background underlying this analysis. Parts III through V address each state's regulatory framework in detail: Montana (Part III), Nevada (Part IV), and West Virginia (Part V). Part VI addresses cross-cutting issues that span all three jurisdictions, including financial assurance, reporting harmonization, and milestone coordination. Part VII sets forth our recommendations for immediate, near-term, and ongoing actions. Part VIII provides our conclusion. Supporting materials are attached as Appendices A through D.
II. Scope and Background
A. The Federal Consent Decree Framework
The Consent Decree was lodged with the Court on February 19, 2025, and is currently subject to a thirty-day public comment period that is expected to close on March 21, 2025. Under the terms negotiated by the parties, the target date for entry of the Consent Decree by the Court is May 15, 2025, with the "Effective Date" defined as thirty days after entry — June 14, 2025. The Consent Decree represents the culmination of extensive multi-party negotiations that commenced in April 2024, following the filing of the initial complaint by the United States and the State of Montana, with the States of Nevada and West Virginia thereafter joining as co-plaintiffs pursuant to separate joinder agreements.
The federal statutory bases for the enforcement action underlying the Consent Decree are as follows:
• Clean Water Act ("CWA") § 301, 33 U.S.C. § 1311 — unauthorized discharges of pollutants from point sources at the Ridgecrest Mine, Gallatin Chemical Works, and Bonanza Creek Mine, and the 2020 sulfuric acid release at the Kanawha Bend Chemical Plant;
• Resource Conservation and Recovery Act ("RCRA") §§ 3004, 3005, 42 U.S.C. §§ 6924, 6925 — mismanagement of hazardous wastes at the Ridgecrest Mine (solvent-extraction/electrowinning circuit wastes), Gallatin Chemical Works (corrective action facility obligations), Bonanza Creek Mine (management of spent heap-leach ore), and Kanawha Bend Chemical Plant (failure to properly close former surface impoundment; unpermitted treatment of listed hazardous wastes); and
• Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") § 107, 42 U.S.C. § 9607 — recovery of EPA response costs incurred in connection with emergency response and remedial investigation activities at the Ridgecrest Mine and the Kanawha Bend Chemical Plant.
The Consent Decree encompasses the following principal financial and remedial obligations:
Critically for the purposes of this memorandum, the Consent Decree expressly preserves state authority. Section XIV, Paragraph 87 of the Consent Decree provides:
"Nothing in this Consent Decree shall be construed to limit the authority of any State to enforce any requirement of state law against any Defendant, including but not limited to the authority to require compliance with state environmental permits, to assess state civil penalties, or to require remediation or corrective action under state law."
This savings clause is reinforced by the joinder agreements executed by the States of Montana, Nevada, and West Virginia on February 14, 2025. Each joinder agreement contains materially identical provisions confirming the respective state's reserved enforcement rights. Specifically, each state joinder agreement provides that: (i) the state's joinder as a co-plaintiff does not constitute a release or waiver of any state enforcement authority under state environmental statutes; (ii) the state retains the right to bring separate enforcement actions for violations of state law, including the assessment of state civil penalties; and (iii) the state retains full authority to administer and enforce state environmental permits applicable to the Defendants' facilities within the state. A summary of these provisions is set forth in Appendix D.
B. Relevant TMC Entities and Site Operators
The following TMC entities and their respective operational roles at each of the four sites are relevant to the state permit coordination issues addressed in this memorandum:
Ridgecrest Copper-Molybdenum Mine:
• Operator: Torchlight Mining (U.S.) Inc. (EIN: 83-2047156), a wholly owned subsidiary of Torchlight Mining Corp.
• Property/Mineral Rights Holder: Ridgecrest Mine Holdings, LLC (Montana Secretary of State ID: E1042738), a wholly owned subsidiary of Torchlight Mining (U.S.) Inc.
• Location: 14200 Ridgecrest Mine Road, Drummond, Granite County, Montana 59832
• Site Area: Approximately 3,200 acres mine footprint; approximately 8,700 acres total controlled property
• Operational Status: Closure/reclamation phase (active mining ceased December 31, 2019)
Gallatin Chemical Works:
• Operator: Torchlight Specialty Chemicals, Inc. (EIN: 47-3819204), a wholly owned subsidiary of Torchlight Mining Corp.
• Location: 8800 Industrial Park Lane, Belgrade, Gallatin County, Montana 59714
• Site Area: Approximately 145 acres
• Operational Status: Active specialty chemical manufacturing facility
Bonanza Creek Gold Mine:
• Operator: Torchlight Mining (U.S.) Inc. (EIN: 83-2047156)
• Property/Mineral Rights/Water Rights Holder: Bonanza Creek Mining, LLC (Nevada Secretary of State Entity No.: E0518294731), a wholly owned subsidiary of Torchlight Mining (U.S.) Inc.
• Location: County Road 447, Mile Marker 12, Lander County, Nevada 89820
• Site Area: Approximately 5,600 acres mine footprint; approximately 12,400 acres total controlled property
• Operational Status: Active open-pit heap-leach gold mine (operational since 2001)
Kanawha Bend Chemical Plant:
• Operator: Torchlight Specialty Chemicals, Inc. (EIN: 47-3819204)
• Location: 2200 Chemical Valley Road, Institute, Kanawha County, West Virginia 25112
• Site Area: Approximately 78 acres
• Operational Status: Active chemical manufacturing facility (leaching agents, sulfuric acid regeneration)
C. Local Counsel Coordination
Calderwood & Harkness LLP has retained local counsel in each of the three affected states to manage state-level regulatory coordination and, where necessary, state-court filings. The local counsel relationships are as follows:
Montana — Holcroft, Dane & Weiss LLP ("HDW"):
• Lead Partner: Russell Dane
• Office Address: 45 North Last Chance Gulch, Suite 600, Helena, Montana 59601
• Responsibilities: MT DEQ coordination; state-court filings; coordination with Montana Attorney General's Office (Annika Hedstrom); management of state permit modification applications for both the Ridgecrest Mine and Gallatin Chemical Works
Nevada — Sagebrush Law Group, PLLC ("Sagebrush"):
• Lead Partner: Denise Quartaro
• Office Address: 3960 Howard Hughes Parkway, Suite 500, Las Vegas, Nevada 89169
• Responsibilities: NV DEP coordination; state permit management; coordination with Nevada Attorney General's Office (Ricardo Fuentes); management of state permit modification applications and reclamation permit matters for the Bonanza Creek Gold Mine
West Virginia — Baxter, Tully & Crane PLLC ("BTC"):
• Lead Partner: Nathan Tully
• Office Address: 500 Lee Street East, Suite 1100, Charleston, West Virginia 25301
• Responsibilities: WV DEP coordination; state permit management; coordination with West Virginia Attorney General's Office (Loretta May Hatcher); management of state permit modification applications and corrective action coordination for the Kanawha Bend Chemical Plant
A co-counsel coordination agreement was executed on November 1, 2024, among Calderwood & Harkness LLP, HDW, sagebrush, and BTC. That agreement governs information-sharing protocols, lead-counsel authority (with Calderwood & Harkness serving as lead national counsel and each local firm serving as lead state counsel in its respective jurisdiction), conflict-checking procedures, and billing arrangements. All communications among co-counsel are subject to the joint-defense privilege and the attorney-client privilege, and all work product generated in connection with this matter is jointly privileged and confidential.
III. Montana: State Permit Obligations (Ridgecrest Mine and Gallatin Chemical Works)
Montana's environmental regulatory framework imposes multiple, independent permitting requirements on TMC's two Montana facilities. This Part addresses the Montana Pollutant Discharge Elimination System ("MPDES") permits, Hard Rock Mining reclamation permits under the Metal Mine Reclamation Act, and the Montana RCRA-authorized state hazardous waste program. For each permit category, we identify the specific state permit obligations, the potential for conflict or inconsistency with the Consent Decree, and the coordination steps required.
A. Montana Pollutant Discharge Elimination System (MPDES) Permits
The Montana Department of Environmental Quality administers the Montana Pollutant Discharge Elimination System program as the authorized Clean Water Act state program. Montana received EPA authorization to administer the NPDES program in 1974, and the MPDES program operates as the state-law equivalent of the federal NPDES program. MPDES permits are issued pursuant to Montana Code Annotated ("MCA") § 75-5-401 and Administrative Rules of Montana ("ARM") Title 17, Chapter 30, Subchapter 13. Both the Ridgecrest Mine and the Gallatin Chemical Works hold existing MPDES permits, and each presents distinct coordination challenges with the Consent Decree.
1. Ridgecrest Mine — MPDES Permit Requirements
The Ridgecrest Copper-Molybdenum Mine holds an existing MPDES permit (Permit No. MT-0030201) for point-source discharges from the mine dewatering system and the tailings impoundment decant. The permit authorizes discharge to Flint Creek, a tributary of the Clark Fork River, and specifies effluent limits for a range of contaminant parameters including dissolved copper, total suspended solids, sulfate, molybdenum, selenium, and pH.
The key compliance issue at the Ridgecrest site is the magnitude of the exceedance of the Montana surface-water chronic aquatic life standard for copper. Montana's water quality standard for dissolved copper in surface waters is 0.0087 mg/L (milligrams per liter), calculated pursuant to ARM 17.30.623 using the hardness-dependent equation at current receiving-water hardness conditions. The current average concentration of dissolved copper in the mine dewatering discharge is 47 mg/L — a concentration approximately 5,400 times the applicable state standard. This extreme exceedance is a direct consequence of the acid mine drainage ("AMD") generated by the oxidation of sulfide minerals in the exposed pit walls, waste rock dumps, and the approximately 425-acre tailings impoundment. Acid mine drainage conditions have persisted and worsened since active mining ceased on December 31, 2019, and the absence of active dewatering and water management during portions of the post-closure period has exacerbated contamination.
In addition to dissolved copper, the Ridgecrest discharge contains elevated concentrations of other contaminants of concern that must be addressed in any MPDES permit modification:
• Sulfate: Average discharge concentration of 3,400 mg/L. While Montana does not have a numeric surface-water quality standard for sulfate, MT DEQ may apply narrative standards under ARM 17.30.637 (prohibition on discharges that cause or contribute to conditions that impair beneficial uses).
• Molybdenum: Average discharge concentration of 1.2 mg/L. Montana applies a human health standard for molybdenum in surface water of 0.04 mg/L, resulting in an exceedance factor of approximately 30.
• Selenium: Average discharge concentration of 0.082 mg/L. Montana's chronic aquatic life standard for selenium is 0.005 mg/L (based on EPA's 2016 national recommended selenium criteria), resulting in an exceedance factor of approximately 16.
The Consent Decree's Ridgecrest Remedial Action Work Plan (framework dated February 10, 2025; final submission deadline December 14, 2025) addresses the acid mine drainage treatment systems, including the design and construction of an active water treatment plant, installation of a seepage-capture system around the tailings impoundment, and a phased approach to pit-lake management. These remedial actions are intended to achieve compliance with MPDES effluent limits over time, with interim milestones for reduction of discharge concentrations during the construction and commissioning phases of the treatment system.
Several coordination issues require attention:
MPDES Permit Renewal Timing. The current MPDES permit is scheduled for renewal, and the timing of any permit modification or renewal application must be carefully coordinated with the Consent Decree remedy milestones. If the permit is renewed before the Consent Decree remedial systems are in place, MT DEQ may impose compliance schedules in the permit that conflict with the Consent Decree's phased remediation timeline. Conversely, if the permit is not modified to reflect the remedial work plan, TMC risks operating without permit coverage for the remedial discharge activities. HDW should engage with MT DEQ's Water Quality Division to establish a coordinated schedule for the permit modification or renewal process.
Tailings Impoundment Seepage. The 425-acre tailings impoundment at the Ridgecrest site has documented seepage to Flint Creek. Monitoring wells installed along the downstream embankment of the impoundment have shown groundwater concentrations of dissolved copper as high as 120 mg/L, with confirmed seepage pathways to Flint Creek. The MPDES permit will likely be modified to require either a zero-discharge standard for the tailings impoundment or, alternatively, a seepage-capture system that collects all impoundment seepage and routes it to the mine water treatment system. The Consent Decree's remedial design for the tailings impoundment includes a seepage-capture trench and pump-back system, but MT DEQ may impose specific design criteria, capture-efficiency benchmarks, or monitoring requirements that go beyond the Consent Decree's specifications.
Closure/Post-Closure Discharge Permit Transition. Because the Ridgecrest site is in the closure and reclamation phase (active mining having ceased on December 31, 2019), the MPDES permit may transition from an operating-phase discharge permit to a closure/post-closure discharge permit. This transition involves a different set of regulatory requirements under Montana law, including potentially longer-term monitoring commitments and different effluent limit structures that account for the declining — but still elevated — nature of AMD discharges during the post-closure period. HDW should confirm with MT DEQ the regulatory pathway for this permit transition and ensure that the transition does not create gaps in permit coverage during the remediation period.
2. Gallatin Chemical Works — MPDES Permit Requirements
The Gallatin Chemical Works holds an existing MPDES permit (Permit No. MT-0045623) with effluent limits for carbon disulfide ("CS₂") and total suspended solids ("TSS"), among other parameters. The permit authorizes discharge of treated process wastewater and stormwater to an unnamed tributary of the East Gallatin River. The Gallatin facility manufactures specialty chemical products used in mineral processing, including xanthate-based flotation reagents and leaching agents, and its wastewater streams contain a complex mixture of organic solvents, heavy metals, and process chemicals.
Between January 2021 and June 2024, MT DEQ documented fourteen (14) exceedances of the MPDES effluent limits at the Gallatin facility. These violations — which include exceedances of both the CS₂ maximum daily and monthly average limits and the TSS monthly average limits — constitute the factual basis for the CWA § 301 claims brought against TMC and Torchlight Specialty Chemicals, Inc. in the federal enforcement action. The federal Consent Decree addresses these violations through the imposition of a federal CWA civil penalty of $5.8 million (allocated to Gallatin) and the requirement to implement corrective measures at the facility.
However, the federal penalty and the Consent Decree's corrective action requirements do not extinguish MT DEQ's independent state enforcement authority over these same violations. Under Montana law, MT DEQ retains the authority to assess state civil penalties for violations of MPDES permit conditions under MCA § 75-5-611, which provides for civil penalties of up to $10,000 per day of violation and up to $25,000 per day for knowing or willful violations. The fourteen documented exceedances, depending on duration and severity, could expose TMC to significant additional state penalty liability.
The critical coordination question is whether MT DEQ intends to pursue separate state penalties for the Gallatin MPDES violations or whether it considers the federal penalty of $5.8 million, together with the Flint Creek Watershed Restoration Project SEP ($5.5 million), to provide adequate deterrence and remediation for the state-law violations. HDW should arrange a meeting with Annika Hedstrom and the relevant MT DEQ enforcement staff to ascertain the state's enforcement intentions. If MT DEQ is considering a separate state penalty action, TMC will need to evaluate whether a parallel state consent order or stipulated penalty arrangement can be negotiated in conjunction with the federal Consent Decree.
Additionally, the Gallatin MPDES permit may require modification to incorporate new effluent limits consistent with the corrective measures study required by the Consent Decree. The scope of work for the Gallatin Corrective Measures Study was dated February 14, 2025, with a submission deadline of June 14, 2026. To the extent that the corrective measures study identifies the need for upgraded wastewater treatment systems, additional monitoring points, or revised effluent limits, these changes must be reflected in the MPDES permit through a formal permit modification process. HDW should coordinate the timing of the MPDES permit modification application with the Consent Decree's corrective measures study schedule to ensure that the permit modification process is completed before any remedial activities requiring modified permit coverage commence.
B. Hard Rock Mining Reclamation Permits (Montana Metal Mine Reclamation Act)
1. Ridgecrest Mine — Operating/Reclamation Permit
Montana's Metal Mine Reclamation Act ("MMRA"), codified at Title 82, Chapter 4, Part 3, MCA, requires operators of hard rock mines to obtain an operating permit from MT DEQ's Hard Rock Mining Bureau and to submit a reclamation plan that provides for the restoration of mined lands to a condition suitable for post-mining land use. The MMRA is administered separately from the MPDES program and imposes independent obligations regarding land reclamation, water quality protection, and financial assurance.
The Ridgecrest Copper-Molybdenum Mine holds an existing operating permit issued by MT DEQ's Hard Rock Mining Bureau. With the cessation of active mining on December 31, 2019, this permit must be amended or converted to a reclamation-only permit that reflects the facility's current closure and reclamation status. The conversion process requires the submission of a revised reclamation plan that addresses, among other things, the stabilization and revegetation of disturbed lands, the management of waste rock and tailings, pit-wall stabilization, and long-term water management.
Reconciliation of Federal and State Reclamation Plans. The Consent Decree's Ridgecrest Remedial Action Work Plan establishes a federal remediation timeline spanning thirty years, with remedy construction commencing on June 14, 2027, and final completion targeted for June 14, 2055. This timeline was negotiated based on the engineering complexity of the AMD treatment systems, the phased approach to pit-lake management, and the long-term monitoring requirements associated with the passive treatment components of the remedy. However, Montana's reclamation plan requirements under the MMRA may impose different deadlines for the completion of specific reclamation activities. For example, MT DEQ's Hard Rock Mining Bureau may require that waste-rock dump regrading and revegetation commence within a shorter timeframe than the Consent Decree contemplates, or may establish different performance standards for vegetative cover that must be achieved at earlier milestones. HDW should engage with the Hard Rock Mining Bureau to identify any discrepancies between the federal remediation schedule and the state reclamation timeline and to negotiate, where possible, a unified schedule that satisfies both sets of requirements.
Financial Assurance Under State Law. Montana requires separate financial assurance for hard rock mine reclamation under MCA § 82-4-338 and ARM 17.24.1116. The financial assurance must be sufficient to cover the estimated cost of reclamation in the event that the operator fails to complete the reclamation plan. The Consent Decree establishes a financial assurance package totaling $245.0 million, consisting of:
• An Ironbark Surety of America surety bond in the amount of $165.0 million (Bond No. ISA-ENV-2025-08934); and
• A Larchfield Trust Company remediation trust in the amount of $80.0 million (Trust Agreement No. LTC-REM-2025-1177).
This financial assurance is designed to cover the total remediation costs at all four Consent Decree sites. The question is whether these federal financial assurance instruments satisfy Montana's independent state financial assurance requirements for the Ridgecrest Mine. Montana's financial assurance rules specify acceptable instruments (surety bonds, irrevocable letters of credit, trust funds, certificates of deposit, and government securities held by an acceptable depository), and the form and content of these instruments must comply with MT DEQ's specific requirements. It is possible that the Ironbark surety bond and/or the Larchfield remediation trust may be acceptable to MT DEQ as state financial assurance instruments, either directly or through a cross-crediting arrangement. However, it is equally possible that MT DEQ will require separate state reclamation bonds that are solely dedicated to the Ridgecrest reclamation obligations, rather than being shared across four multi-state sites. HDW should confirm MT DEQ's position on this issue at the earliest opportunity, as the need for separate state financial assurance could have significant implications for TMC's overall financial exposure and for the covenant compliance analysis under the Harborstone National Bank revolving credit facility.
Open-Pit Closure and Pit-Lake Management. The Ridgecrest site includes a large open pit that will eventually fill with water to form a pit lake as groundwater and surface-water inflows equilibrate. State reclamation rules under the MMRA may impose specific requirements on pit-lake water quality, including the establishment of water quality targets for the pit lake that protect surface water and groundwater quality, requirements for pit-wall stabilization to minimize AMD generation, and long-term post-closure monitoring obligations that extend beyond the thirty-year Consent Decree remediation period. These state requirements may supplement or exceed the pit-lake management provisions in the Consent Decree, and any inconsistencies must be identified and resolved through the coordinated permit modification process.
2. Gallatin Chemical Works — State Permits
The Gallatin Chemical Works is a specialty chemical manufacturing facility and is not a mining operation. Accordingly, the MMRA reclamation permit requirements do not apply to the Gallatin facility. The primary state permit obligations at Gallatin, in addition to the MPDES permit discussed in Section III.A.2 above, arise under Montana's authorized RCRA program, which is addressed in Section III.C below.
C. Montana RCRA-Authorized State Program
Montana DEQ is authorized by EPA to administer portions of the RCRA hazardous waste program within the State of Montana. Montana's Hazardous Waste Act, codified at MCA § 75-10-401 et seq., and the associated administrative rules at ARM Title 17, Chapter 53, establish the state regulatory framework for hazardous waste generation, transportation, treatment, storage, and disposal. The Gallatin Chemical Works and the Ridgecrest Mine both have RCRA-related compliance obligations under this state program.
1. Gallatin Chemical Works — RCRA Corrective Action
The Gallatin Chemical Works holds RCRA Permit No. MTD098712456 and is designated as a corrective action facility under both federal and state law. MT DEQ has identified three solid waste management units ("SWMUs") at the Gallatin facility that require investigation and corrective action. The principal contaminants of concern at these SWMUs include:
• Carbon disulfide (CS₂) in groundwater: Maximum detected concentration of 890 µg/L (micrograms per liter) versus the federal Maximum Contaminant Level ("MCL") of 10 µg/L — an exceedance factor of approximately 89;
• Xanthate decomposition products in groundwater and soil: Various alkyl xanthate degradation products detected in monitoring wells downgradient of the former reagent mixing area; and
• Toluene and xylene in subsurface soils: Detected in the vadose zone beneath the former solvent storage area at concentrations exceeding Montana's Tier 1 risk-based screening levels.
The Consent Decree requires TMC to submit a Corrective Measures Study ("CMS") for the Gallatin facility, with the submission deadline established at June 14, 2026. The CMS will evaluate corrective action alternatives and recommend a preferred remedy for the three SWMUs. Upon approval of the CMS by EPA and MT DEQ, TMC will be required to implement the selected corrective measures in accordance with the schedule established in the Consent Decree.
The state RCRA permit must be modified to incorporate the Consent Decree-mandated corrective action obligations. Under Montana's authorized RCRA program, a permit modification application must be submitted to MT DEQ, and the modification process is subject to public notice and comment requirements. The timing of this permit modification must be coordinated with the Consent Decree's CMS schedule to ensure that the state permit is in place before corrective action activities commence.
A significant risk in this context is the potential for dual enforcement. EPA retains oversight authority over the corrective action at Gallatin under the Consent Decree, while MT DEQ independently maintains permit authority over the facility under the state RCRA permit. This dual-authority structure creates the potential for conflicting directives, duplicative reporting requirements, and inconsistent approval processes. HDW should coordinate with Annika Hedstrom and the relevant MT DEQ staff to establish a single, unified reporting track that satisfies both federal Consent Decree requirements and state RCRA permit requirements, thereby avoiding the need for duplicative submittals that could create opportunities for inadvertent inconsistencies.
The Consent Decree allocates $42.8 million in nominal remediation costs for the Gallatin Chemical Works over a fifteen-year period (net present value of $34.1 million at a 3% discount rate). These costs cover activities that will also satisfy state corrective-action requirements, including groundwater extraction and treatment, soil excavation or in-situ treatment, and long-term monitoring. To the extent that the state-approved corrective action and the federal Consent Decree corrective action are aligned, the remediation costs should not be additive; however, if MT DEQ imposes additional corrective action requirements beyond those specified in the Consent Decree, incremental costs could be incurred.
2. Ridgecrest Mine — RCRA Issues
The Consent Decree includes allegations of RCRA § 3004 violations at the Ridgecrest Mine arising from the mismanagement of hazardous waste generated by the solvent-extraction/electrowinning ("SX/EW") circuit that was operated during the final years of active mining. Specifically, the complaint alleges that spent organic solvent from the SX/EW process, which exhibits the hazardous waste characteristic of toxicity (D-listed waste), was improperly managed in unlined surface impoundments without the required RCRA permit.
EPA Region 8 is the lead regulatory office for the Ridgecrest RCRA enforcement, and the Consent Decree subsumes the federal RCRA enforcement action. However, to the extent that the waste management practices at Ridgecrest also trigger state hazardous waste requirements under Montana's Hazardous Waste Act, MT DEQ may require separate state corrective action or closure plan filings for the SX/EW impoundments. Montana's authorized RCRA program includes the authority to require corrective action at facilities that have managed hazardous waste, even where the facility does not hold a state RCRA permit, through the use of state administrative orders under MCA § 75-10-415.
HDW should confirm with MT DEQ whether the state intends to exercise its independent authority to require corrective action at the Ridgecrest SX/EW impoundments or whether it considers the Consent Decree's remedial requirements to be sufficient. If MT DEQ does require separate state filings, these must be coordinated with the Consent Decree's Ridgecrest Remedial Action Work Plan to ensure consistency and avoid conflicting requirements.
D. Montana State Coordination — Action Items
Based on the foregoing analysis, the following specific action items are identified for coordination with Montana state regulators and the Montana co-plaintiff:
1. Meeting with State Regulators. HDW to schedule a meeting with Annika Hedstrom (Montana Attorney General's Office) and representatives from MT DEQ's Hard Rock Mining Bureau and Waste Management and Remediation Division within thirty (30) days of the entry of the Consent Decree. The purpose of the meeting is to establish the framework for state-federal coordination and to address the specific issues identified in this memorandum.
2. State Permit Modification Requirements. HDW to identify whether MT DEQ considers the federal Consent Decree sufficient to satisfy state permit modification requirements at both the Ridgecrest Mine and the Gallatin Chemical Works, or whether separate state orders, permit modifications, or corrective action plans are needed.
3. Financial Assurance. HDW to confirm Montana's state financial assurance requirements for the Ridgecrest Mine under the MMRA and for the Gallatin Chemical Works under the state RCRA program, and to evaluate whether the federal financial assurance instruments (Ironbark surety bond and Larchfield remediation trust) can serve a dual purpose or whether separate state instruments are required.
4. State Penalties. HDW to confirm the state's position on separate state penalties for the fourteen MPDES violations documented at the Gallatin Chemical Works between January 2021 and June 2024.
5. Schedule Coordination. HDW to coordinate the timing of state permit modifications with the Consent Decree milestones, including the Ridgecrest Remedial Action Work Plan (final submission due December 14, 2025) and the Gallatin Corrective Measures Study (submission due June 14, 2026).
IV. Nevada: State Permit Obligations (Bonanza Creek Gold Mine)
Nevada's regulatory framework for mining operations and environmental compliance differs in significant respects from Montana's, reflecting the unique characteristics of the state's mining industry and its arid environment. The Bonanza Creek Gold Mine, an active open-pit heap-leach gold mine in Lander County, is subject to multiple overlapping state permit obligations administered by the Nevada Division of Environmental Protection. This Part addresses the principal state permit coordination issues for the Bonanza Creek site.
A. Nevada Water Pollution Control Permits (NPDES Equivalent)
The Nevada Division of Environmental Protection administers the state's water pollution control program under the Nevada Water Pollution Control Law, Nevada Revised Statutes ("NRS") Chapter 445A. Nevada is an authorized CWA state, and NV DEP issues water pollution control permits (which function as the state equivalent of federal NPDES permits) pursuant to NRS 445A.465 and Nevada Administrative Code ("NAC") Chapter 445A. The Bonanza Creek Gold Mine holds a water pollution control permit that governs discharges from the mine operations to waters of the state.
The Bonanza Creek Mine is an active open-pit heap-leach gold mine that has been operational since 2001. The mine operations involve the application of dilute cyanide solution to crushed ore placed on lined heap-leach pads, with the gold-bearing pregnant solution collected, processed through a carbon-in-leach circuit, and the barren solution recycled. The heap-leach process is designed as a closed-loop, zero-discharge system; however, the mine has experienced three documented releases of process solution from the heap-leach pad to an ephemeral tributary of the Reese River:
• March 17, 2022: Release of approximately 45,000 gallons of pregnant solution through a tear in the high-density polyethylene ("HDPE") liner on the northeast corner of Leach Pad 4;
• August 9, 2022: Release of approximately 28,000 gallons of barren solution through a second liner failure in the same general area of Leach Pad 4; and
• January 22, 2023: Release of approximately 62,000 gallons of pregnant solution through a liner failure on the south face of Leach Pad 3, reaching surface drainage approximately 200 feet from the pad perimeter.
The released process solutions contained WAD (weak acid dissociable) cyanide at concentrations of up to 0.62 mg/L versus the applicable discharge limit of 0.022 mg/L (an exceedance factor of approximately 28), and mercury at average concentrations of 12.4 µg/L versus the applicable water quality criterion of 0.77 µg/L (an exceedance factor of approximately 16). These releases, together with the CWA discharge violations they represent, form the basis for the federal CWA claims at the Bonanza Creek site.
The state water pollution control permit for the Bonanza Creek Mine must be reviewed and potentially modified to incorporate enhanced liner integrity monitoring and reporting requirements consistent with the Consent Decree's liner repair and containment plan (scope of work dated February 14, 2025; commencement deadline June 14, 2026). The liner repair plan includes replacement of the failed liner sections, installation of a leak detection and recovery system ("LDRS") beneath the existing heap-leach pads, and implementation of a continuous liner integrity monitoring program using electrical leak location surveys and groundwater monitoring. These requirements must be reflected in the state water pollution control permit to ensure that state regulatory oversight is aligned with the federal remedial obligations.
Additionally, selenium concentrations in the pit-lake water at the Bonanza Creek Mine have been detected at levels that may trigger additional state water quality monitoring or treatment obligations. Nevada's surface-water quality standards for selenium are established at NAC 445A.144, and NV DEP may require the incorporation of selenium monitoring and, if warranted, treatment provisions into the state water pollution control permit.
From an enforcement perspective, NV DEP retains independent authority to assess state penalties for the water pollution control permit violations associated with the three documented releases. The federal Consent Decree's Bonanza Creek civil penalty of $7.9 million addresses the federal CWA violations but does not preclude NV DEP from pursuing separate state enforcement action under NRS 445A.700 (which provides for civil penalties of up to $25,000 per day of violation). Sagebrush should coordinate with Ricardo Fuentes of the Nevada Attorney General's Office, who has been involved as co-plaintiff counsel throughout the Consent Decree negotiations, to ascertain NV DEP's intentions regarding separate state enforcement and to negotiate, if possible, a coordinated resolution of both federal and state penalty claims.
B. Nevada Mining Reclamation Permits (Bureau of Mining Regulation and Reclamation)
NV DEP's Bureau of Mining Regulation and Reclamation ("BMRR") issues mining reclamation permits and requires financial assurance for mining operations under NRS Chapter 519A and NAC Chapter 519A. The reclamation permit program is designed to ensure that mined lands are reclaimed to a safe and stable condition suitable for post-mining land use, and applies to all mining operations that disturb more than five acres of land.
Bonanza Creek Mining, LLC (NV SOS Entity No.: E0518294731) holds reclamation permits for the approximately 5,600-acre mine footprint at the Bonanza Creek Gold Mine. These permits specify the reclamation standards that must be met at closure, including requirements for regrading, revegetation (to the extent practicable in the arid Great Basin environment), stabilization of pit walls, and management of heap-leach pads, waste rock, and tailings.
A critical coordination issue arises with respect to heap-leach pad closure and reclamation. Nevada's mining reclamation standards may require specific closure plans for spent heap-leach ore, including the detoxification (rinsing) of cyanide-bearing ore, installation of a final cover system, and long-term monitoring of leachate quality. The Consent Decree's RCRA § 3004 provisions address the management of spent heap-leach ore at Bonanza Creek, including the allegation that spent heap-leach ore constitutes hazardous waste due to elevated cyanide and heavy metal concentrations. The federal requirements for the closure and management of this material must be reconciled with Nevada's state reclamation standards, which may impose different or additional closure requirements. Sagebrush should review the state reclamation permit conditions for the heap-leach pads and compare them with the Consent Decree's RCRA corrective action requirements to identify any inconsistencies.
With respect to financial assurance, Nevada independently requires mine reclamation financial assurance under NRS 519A.230. NV DEP's BMRR establishes the required amount of financial assurance based on an estimate of the costs that would be incurred by a third-party contractor to complete reclamation in the event of operator default. The Consent Decree's $245.0 million financial assurance package covers remediation costs at all four Consent Decree sites and is not specifically allocated to Nevada reclamation obligations. NV DEP may not accept the federal financial assurance instruments as a substitute for state reclamation bonds, particularly given that the federal instruments serve multiple sites across three states. Sagebrush should confirm NV DEP's position on cross-crediting and, if separate state financial assurance is required, assess the magnitude of the additional bonding obligation.
Unlike the Ridgecrest Mine in Montana, the Bonanza Creek Gold Mine is an active, operating mine. This distinction has important implications for state permit compliance: the state reclamation permits require ongoing compliance during operations (including progressive reclamation of disturbed areas, maintenance of stormwater management systems, and regular reporting) in addition to the long-term closure and reclamation planning that will be triggered when active mining eventually ceases. The Consent Decree's remedial requirements must be integrated with these ongoing operational compliance obligations to ensure that the remediation activities do not inadvertently disrupt or conflict with the active mining operations or the associated state permit conditions.
C. Nevada RCRA Implications
Nevada is an authorized RCRA state, and NV DEP administers the hazardous waste program within the state under NRS Chapter 459 and NAC Chapter 444. The Consent Decree alleges RCRA § 3004 violations at the Bonanza Creek Mine arising from the management of spent heap-leach ore as hazardous waste. Specifically, the complaint alleges that spent heap-leach ore, which has been detoxified (rinsed) and placed in the spent ore disposal area, retains residual cyanide concentrations and heavy metal concentrations (principally arsenic and mercury) that cause the material to exhibit one or more hazardous waste characteristics under 40 C.F.R. Part 261, Subpart C.
The state hazardous waste permit implications of this allegation are significant. If spent heap-leach ore at Bonanza Creek is determined to be a hazardous waste, the disposal of this material in the spent ore disposal area may require a state hazardous waste permit (or equivalent authorization) from NV DEP. Sagebrush should confirm whether Bonanza Creek currently holds a state hazardous waste permit or whether the facility is operating under an exemption or exclusion (such as the Bevill exemption for mining wastes under RCRA § 3001(b)(3)(A), which may apply to certain mining wastes but does not extend to all wastes generated at mining operations). If a state hazardous waste permit is required, the permit application process must be coordinated with the Consent Decree's corrective action requirements for the spent heap-leach ore.
Coordination with EPA Region 9 (Jennifer Whitfield, EPA Project Coordinator for the Bonanza Creek site) and NV DEP will be essential to establish a unified reporting framework for the RCRA corrective action activities at Bonanza Creek. As with the Gallatin Chemical Works in Montana, the dual-authority structure — with EPA exercising oversight under the Consent Decree and NV DEP maintaining permit authority under the state hazardous waste program — creates the potential for conflicting directives and duplicative reporting obligations. A unified reporting framework should be established at the outset to minimize this risk.
D. Migratory Bird Treaty Act — State Wildlife Implications
The Consent Decree addresses seventeen (17) documented avian mortalities at the Bonanza Creek Mine's solution ponds between 2021 and 2023. While the Migratory Bird Treaty Act ("MBTA") is a federal statute, Nevada state wildlife laws — including the Nevada Wildlife Laws codified at NRS Chapter 501 et seq. — may impose additional obligations regarding wildlife protection at mining operations. NV DEP and the Nevada Department of Wildlife ("NDOW") may require specific measures to protect wildlife at the Bonanza Creek site, including the installation of netting or bird-deterrent systems over solution ponds, regular monitoring for avian mortality, and reporting of any wildlife incidents.
The Consent Decree's remediation plan for the Bonanza Creek solution ponds includes the installation of bird-exclusion netting and deterrent systems, along with monitoring and reporting requirements. These measures must comply with any applicable state wildlife agency requirements, and sagebrush should confirm with NDOW whether additional state-level approvals or permits are needed for the wildlife-protection measures specified in the Consent Decree.
The estimated total remediation cost for the Bonanza Creek Gold Mine under the Consent Decree is $63.2 million over twenty years (net present value of $47.1 million at a 3% discount rate). This estimate includes the liner repair and containment plan, the RCRA corrective action for spent heap-leach ore, the wildlife-protection measures, and long-term monitoring.
E. Nevada State Coordination — Action Items
Based on the foregoing analysis, the following specific action items are identified for coordination with Nevada state regulators and the Nevada co-plaintiff:
1. Meeting with State Regulators. sagebrush to schedule a meeting with Ricardo Fuentes (Nevada Attorney General's Office) and NV DEP within thirty (30) days of the entry of the Consent Decree. The meeting should include representatives from NV DEP's Bureau of Water Pollution Control, Bureau of Mining Regulation and Reclamation, and Bureau of Waste Management.
2. Liner Repair Plan Coordination. sagebrush to confirm whether NV DEP will accept the Consent Decree's liner repair and containment plan as satisfaction of state water pollution control permit modification requirements or whether a separate state permit modification application is needed.
3. Financial Assurance. sagebrush to confirm state reclamation financial assurance requirements and evaluate the potential for cross-crediting with the federal Consent Decree financial assurance instruments.
4. State Penalties. sagebrush to clarify NV DEP's position on separate state penalties for the three documented process solution releases in 2022 and 2023.
5. Schedule Coordination. sagebrush to coordinate timing of state permit modifications with the Consent Decree milestones, particularly the liner repair commencement deadline of June 14, 2026.
6. Hazardous Waste Permitting. sagebrush to confirm state hazardous waste permitting status for spent heap-leach ore at Bonanza Creek and determine whether a state hazardous waste permit or permit modification is required.
V. West Virginia: State Permit Obligations (Kanawha Bend Chemical Plant)
The Kanawha Bend Chemical Plant, located in the Chemical Valley corridor of Kanawha County, West Virginia, presents a distinct set of state permit coordination challenges. As an active chemical manufacturing facility that experienced a significant environmental release in 2020, the plant is subject to multiple state permit programs administered by the West Virginia Department of Environmental Protection. This Part addresses the principal state permit coordination issues for the Kanawha Bend site.
A. West Virginia NPDES Permits
The West Virginia Department of Environmental Protection administers the NPDES program as the authorized CWA state program within the State of West Virginia. State NPDES permits are issued pursuant to the West Virginia Water Pollution Control Act, West Virginia Code ("W. Va. Code") § 22-11-1 et seq., and the associated legislative rules. The Kanawha Bend Chemical Plant holds a state NPDES permit that authorizes the discharge of treated process effluent and stormwater to a tributary of the Kanawha River.
The Kanawha Bend facility has been in operation since 1985 and currently manufactures leaching agents and operates a sulfuric acid regeneration process. The facility's wastewater treatment system treats combined process wastewater, cooling-water blowdown, and stormwater runoff before discharge. The state NPDES permit establishes effluent limits for a range of parameters including pH, total suspended solids, sulfate, heavy metals, and total organic carbon.
The most significant environmental event at the Kanawha Bend facility was the June 14, 2020 sulfuric acid release to a tributary of the Kanawha River. The release resulted from the failure of a containment berm around the sulfuric acid regeneration area, which allowed approximately 15,000 gallons of concentrated sulfuric acid to escape secondary containment and reach the receiving stream. The release triggered an EPA emergency response under CERCLA § 104, and the response costs of $3.8 million incurred by EPA are included in the Consent Decree's CERCLA § 107 cost-recovery provisions.
The state NPDES permit at Kanawha Bend must be reviewed and potentially modified to address the discharge of treated effluent in light of the Consent Decree's interim stabilization measures and long-term remediation plan. State-imposed effluent limits may be more stringent than federal standards for certain parameters, reflecting West Virginia's specific water quality standards for the Kanawha River basin. For example, West Virginia's antidegradation policy under 47 CSR 2 (Legislative Rule — Requirements Governing Water Quality Standards) may impose additional limitations on discharge concentrations for parameters where the receiving stream is at or near its assimilative capacity.
Additionally, the Kanawha Bend site has a confirmed dense non-aqueous phase liquid ("DNAPL") contamination issue in the fractured bedrock aquifer beneath the facility. Chlorinated solvents, including trichloroethylene ("TCE") and 1,1,1-trichloroethane ("TCA"), have been detected in the fractured bedrock at concentrations exceeding applicable groundwater standards. West Virginia's groundwater protection rules, codified at 47 CSR 12 (Groundwater Protection Rule), may impose additional monitoring and remediation requirements for the DNAPL contamination that extend beyond the Consent Decree's remedial provisions. The DNAPL contamination is technically complex to remediate due to the fractured bedrock geology, and the state may require specific remediation technologies or performance standards that differ from those specified in the Consent Decree's corrective action provisions.
BTC should confirm whether a state NPDES permit modification is needed to align the permit conditions with the Consent Decree's interim stabilization measures (scope of work dated February 18, 2025; completion deadline December 14, 2026). The interim stabilization measures include the installation of enhanced secondary containment around the sulfuric acid regeneration area, construction of a groundwater interceptor trench to capture contaminated shallow groundwater before it reaches the receiving stream, and implementation of an enhanced monitoring program for the DNAPL plume. To the extent that these measures result in new or modified discharge points or change the characteristics of the treated effluent, the state NPDES permit must be updated accordingly.
B. West Virginia RCRA-Authorized State Program
West Virginia is an authorized RCRA state, and WV DEP administers the hazardous waste program under the West Virginia Hazardous Waste Management Act, W. Va. Code § 22-18-1 et seq., and the associated legislative rules at 33 CSR 20. The Kanawha Bend Chemical Plant holds RCRA Permit No. WVD048823915 and is designated as a corrective action facility.
The Consent Decree alleges violations of RCRA §§ 3004 and 3005 at the Kanawha Bend facility. The specific allegations include:
• Failure to properly close former surface impoundment: The facility's former waste lagoon, which was used for the management of sulfuric acid process residuals and other liquid wastes, was not closed in accordance with RCRA closure requirements. The impoundment has not been dewatered, and contaminated sediments (containing heavy metals and sulfuric acid residuals) remain in place.
• Unpermitted treatment of listed hazardous wastes: The facility allegedly treated listed hazardous wastes — specifically, K062 (spent pickle liquor from steel finishing operations, which is relevant to the sulfuric acid regeneration process that processes spent sulfuric acid from steel industry customers) and D002 (corrosivity characteristic hazardous waste) — without the required RCRA permit or interim status authorization for the treatment activities.
The state RCRA permit at Kanawha Bend must be modified to incorporate the Consent Decree's remediation requirements. The permit modification process under West Virginia's authorized RCRA program requires the submission of a Class 3 permit modification application (for significant changes such as the addition of corrective action requirements), which is subject to public notice and comment and WV DEP review and approval. BTC should prepare the permit modification application in coordination with the Consent Decree's remediation schedule.
The environmental conditions at the former waste lagoon are particularly severe. Soil sampling in the vicinity of the lagoon has revealed:
• pH: As low as 1.8 in near-surface soils, reflecting extreme acidification from decades of sulfuric acid waste management;
• Lead: Maximum detected concentration of 4,200 mg/kg in soils adjacent to the former lagoon, exceeding EPA's residential soil screening level (400 mg/kg) and industrial soil screening level (800 mg/kg) by factors of 10.5 and 5.25, respectively; and
• Arsenic: Maximum detected concentration of 890 mg/kg, exceeding EPA's residential soil screening level (0.68 mg/kg) and industrial soil screening level (3.0 mg/kg) by extreme margins.
West Virginia's soil cleanup standards may apply to the remediation of these contaminated soils in addition to the federal RCRA corrective action standards. West Virginia has adopted voluntary remediation program standards under the Voluntary Remediation and Redevelopment Act, W. Va. Code § 22-22-1 et seq., and WV DEP may apply these standards — or other state-specific cleanup criteria — to the Kanawha Bend corrective action. BTC should confirm which state soil and groundwater cleanup standards apply to the Kanawha Bend facility and compare them with the federal standards incorporated in the Consent Decree. If the state standards are more stringent, the corrective action plan must be designed to achieve the more stringent state standards, even if the Consent Decree's federal corrective action standards would otherwise be satisfied by a less aggressive remedy.
BTC should coordinate with Loretta May Hatcher of the West Virginia Attorney General's Office on a unified corrective action and permit modification process. The goal is to establish a single regulatory track in which the Consent Decree's corrective action requirements and the state RCRA permit modification are processed concurrently, with a single set of technical submittals serving both federal and state purposes.
The estimated remediation cost for the Kanawha Bend Chemical Plant under the Consent Decree is $38.9 million over twenty years (net present value of $29.0 million at a 3% discount rate).
C. West Virginia Air Quality Permits
The Kanawha Bend facility's sulfuric acid regeneration operations involve the thermal processing of spent sulfuric acid, which generates sulfur dioxide ("SO₂") and sulfuric acid mist as air emissions. These operations may require state air quality permits under West Virginia's Air Pollution Control Act, W. Va. Code § 22-5-1 et seq., and the associated legislative rules. The facility may hold a state air quality permit or may be subject to New Source Performance Standards ("NSPS") for sulfuric acid plants under 40 C.F.R. Part 60, Subpart H, which are administered in West Virginia through the state air quality program.
The Institute Community Air Quality Monitoring Network SEP ($3.0 million — installation and ten-year operation of six ambient air quality monitoring stations in the Institute/South Charleston area) is designed to benefit the surrounding community by providing real-time air quality monitoring data. While the SEP represents a significant investment in community health infrastructure, it is not a substitute for compliance with the facility's own air quality permit conditions. The SEP monitoring network will collect ambient air quality data from community locations, not from the facility's emission stacks; the facility must independently comply with all applicable stack emission limits and operational requirements in its state air quality permit.
BTC should confirm the current status of the Kanawha Bend facility's state air quality permit(s) and determine whether any modifications are needed in connection with the Consent Decree's remediation activities or operational changes. I