United States et al v. Atlantic Richfield Company et al

Filing 24

ORDER granting 8 Motion for Entry of Consent Decree. The Consent Decree is hereby ENTERED and shall constitute final judgment. Case terminated. Signed by Chief Judge Robert C. Jones on 5/20/13. (Copies have been distributed pursuant to the NEF - JC)

Case 3:12-cv-00524-RCJ-WGC Document 8 Filed 12/12/12 Page 1 of 7

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CATHERINE CORTEZ MASTO
Attorney General
CAROLYN E. TANNER (Bar No. 5520)
NHU Q. NGUYEN (Bar No. 7844)
Senior Deputy Attorneys General
5420 Kietzke Lane, Suite 202
Reno, NV 89511
Telephone: [phone]
Facsimile: [phone]
Attorneys for State ofNevada
Additional counsel listed on next page
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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UNITED STATES OF AMERICA, STATE OF
NEVADA THROUGH ITS DEPARTMENT OF
NATURAL RESOURCES, DIVISION OF
ENVIRONMENTAL PROTECTION, A and THE
SHOSHONE-PAIUTE TRIBES OF THE DUCK
VALLEY RESERVATION,
Plaintiffs,
►~~
ATLANTIC RICHFIELD COMPANY, THE
CLEVELAND-CLIFFS IRON COMPANY, E.I
DU PONT DE NEMOURS AND COMPANY,
TECK AMERICAN INCORPORATED, and
MOUNTAIN CITY REMEDIATION, LLC,

Civ. Action No. 3:12-cv-00524-RCJWGC
UNOPPOSED REQUEST FOR
ENTRY OF CONSENT DECREE

Defendants

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Page 1
Unopposed Request for Entry of Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8 Filed 12/12/12 Page 2 of 7

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IGNACIA S. MORENO
Assistant Attorney General
Environment &Natural Resources Division
United States Department of Justice
ELISE S. FELDMAN
Environmental Enforcement Section
Environment &Natural Resources Division
United States Department of Justice
301 Howard Street, Suite 1050
San Francisco, CA 94105
[phone]
Telephone:
[phone]
Facsimile:
E-mail: Elise.Feldman(a~usdoj.~ov
DANIEL G. BOGDEN
United States Attorney
District of Nevada
HOLLY VANCE
Assistant United States Attorney
100 West Liberty
Suite 600
Reno, NV 89501
Telephone: [phone]
Facsimile: [phone]
E-mail: Ho11y.Vance(a~usdoj. o~v
Attorneys for Plaintiff United States of America
LLOYD B. MILLER (AK Bar No.7906040)
Sonosky, Chambers, Sachse, Endreson &Perry, LLP
900 West Fifth Avenue
Suite 700
Anchorage, AK 99501-2029
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorney for the Shoshone-Paiute Tribes of the Duck Valley Reservation
Now come the State of Nevada on behalf of the Nevada Department of Conservation and
Natural Resources, Division of Environmental Protection and the Department of Wildlife; the
United States of America, on behalf of the United States Environmental Protection Agency, the
Department of the Interior's Bureau of Indian Affairs and the United States Fish and Wildlife
Service, the Department of Agriculture's United States Forest Service; and the Shoshone-Paiute
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Unopposed Request for Entry of Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8 Filed 12/12/12 Page 3 of 7

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Tribes of the Duck Valley Reservation (collectively, "Plaintiffs"), and ask that this honorable

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court enter the Consent Decree entered into by the Plaintiffs and Defendants Atlantic Richfield

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Company, Cliffs Natural Resources f/k/a Cleveland-Cliffs Iron Company, E.I. du Pont de

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Nemours and Company, Teck American Incorporated f/k/a Teck Cominco American Inc., f/k/a
Cominco American Inc., and Mountain City Remediation LLC, and lodged with this honorable
court on September 27, 2012. See Attachment 1 to Notice of Lod ing, (Document No. 2). In

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support of this Request, the Plaintiffs submit the Memorandum in Support of Unopposed Request

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to Enter Consent Decree and its attachments, filed herewith.

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Respectfully submitted,

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FOR THE STATE OF NEVADA

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CATHERINE CORTEZ MASTO
Attorney General

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Date: 12/12/12

Carolyn E. Tanner
/s/
CAROLYN E. TANNER (Bar No. 5520)
Senior Deputy Attorney General

Date: 12/12/12

Nhu O. N~uven
/s/
NHU Q. NGUYEN (Bar No. 7844)
Senior Deputy Attorney General
5420 Kietzke Lane, Suite 202
Reno, Nevada 89511
Telephone: [phone]
Facsimile: [phone]

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Page 3
Unopposed Request for Entry of Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8 Filed 12/12/12 Page 4 of 7

FOR THE UNITED STATES OF AMERICA

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IGNACIA S. MORENO
Assistant Attorney General
Environment and Natural Resources Division
United States Department of Justice

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/s/ Elise S. Feldman
ELISE S. FELDMAN
Trial Attorney
Environmental Enforcement Section
Environment &Natural Resources Division
U.S. Department of Justice
301 Howard Street, Suite 1050
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]

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DANIEL G. BOGDEN

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United States Attorney

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Date: 12/12/12

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District of Nevada
HOLLY VANCE
Assistant United States Attorney
100 West Liberty, Suite 600
Reno, Nevada 89501
Telephone: [phone]
Facsimile: [phone]
E-mail: Ho11y.Vance(a,usdoj. o~v

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Of counsel:
JOSHUA WIRTSCHAFTER
Assistant Regional Counsel
United States Environmental Protection Agency
KIRK MINCKLER
Attorney
Office of General Counsel
United States Department of Agriculture
SONIA OVERHOLSER
Attorney Advisor
United States Department of the Interior

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THE SHONSHONE-PAIUTE TRIBES OF THE
Unopposed Request for Entry of Consent Decree

Page 4

Case 3:12-cv-00524-RCJ-WGC Document 8 Filed 12/12/12 Page 5 of 7

DUCK VALLEY RESERVATION

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DATE: 12/12/12

Lloyd B. Miller
/s/
LLOYD B. MILLER
Sonosky, Chambers, Sachse, Endreson &Perry, LLP
900 West Fifth Avenue
Suite 700
Anchorage, Alaska 99501-2029

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Unopposed Request for Entry of Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8 Filed 12/12/12 Page 6 of 7

CERTIFICATE OF SERVICE
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I, Gayle Simmons, hereby certify and declare:

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1. I am over the age of 18 years and am not a party to this case.

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2. My business address is 601 D Street, Washington, DC, 20004

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3. I am familiar with the U.S. Department of Justice's mail collection and processing
practices, know that mail is collected and deposited with the United States Postal Service on the
same day it is deposited in interoffice mail, and know that postage thereon is fully prepaid.

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4. Following this practice, on December 12, 2012,I served a true copy of the foregoing,
attached documents) entitled:

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UNOPPOSED REQUEST FOR ENTRY OF CONSENT DECREE

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MEMORANDUM 1N SUPPORT OF UNOPPOSED REQUEST FOR ENTRY OF CONSENT
DECREE,( including Exhibits A-B)
PROPOSED ORDER TO ENTER CONSENT DECREE

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via an addressed sealed envelope with postage fully prepaid, and deposited in regularly
maintained office mail to the following parties (who do not yet appear on the Court's ECF system
for this matter):
Jen Unekis
707 W. 4t" St.
Lawrence , KS 66044
Betsy Temkin
Temkin Wielga & Hardt LLP
1900 Wazee Street, Ste 303
Denver, CO 80202

Carolyn Tanner
State of Nevada - Office of the Attorney General
5420 Kietzke Lane, Suite 202
Reno, NV 89511

Nhu Nguyen
Nevada Dept. of Wildlife
100 N. Carson Street
Carson City, NV 89706

Lloyd Miller
Sonosky, Chambers, Sachse, Miller &Munson, LLP
900 West Fifth Avenue, Suite 700
Anchorage, AK 99501

Joshua Wirtschafter
U.S. Environmental Protection Agency
Office of Regional Counsel
75 Hawthorne Street, ORC-3
San Francisco, CA 94105

Kirk Minckler
U.S. Dept. of Agriculture
Office of General Counsel
740 Simms Street, Room 309
Golden, CO 80401-4720

Sonia Overholser
U.S. Dept. of Interior -Field Solicitor
401 W. Washington, SPC 44
Phoenix, AZ 85003
Unopposed Request for Entry of Consent Decree

Page 1

Case 3:12-cv-00524-RCJ-WGC Document 8 Filed 12/12/12 Page 7 of 7

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I declare under the penalty of perjury that the foregoing is true and correct.
Executed on December 12, 2012, at Washington, DC

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~~~C-l- C~
GAY E SIMMONS

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Page 2
Unopposed Request for Entry of Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 1 of 21

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CATHERINE CORTEZ MASTO
Attorney General
CAROLYN E. TANNER (Bar No. 5520)
NHU Q. NGUYEN (Bar No. 7844)
Senior Deputy Attorneys General
5420 Kietzke Lane, Suite 202
Reno, NV 89511
Telephone: [phone]
Facsimile: [phone]
Attorneys for State ofNevada
Additional counsel listed on next page

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
UNITED STATES OF AMERICA, STATE OF
NEVADA THROUGH ITS DEPARTMENT OF
NATURAL RESOURCES, DIVISION OF
ENVIRONMENTAL PROTECTION, A and THE
SHOSHONE-PAIUTE TRIBES OF THE DUCK
VALLEY RESERVATION,
Plaintiffs,
ATLANTIC RICHFIELD COMPANY, THE
CLEVELAND-CLIFFS IRON COMPANY, E.I.
DU PONT DE NEMOURS AND COMPANY,
TECK AMERICAN INCORPORATED, and
MOUNTAIN CITY REMEDIATION, LLC,

Civ. Action No. 3:12-cv-00524-RCJWGC
MEMORANDUM IN SUPPORT
OF UNOPPOSED REQUEST FOR
ENTRY OF CONSENT DECREE

Defendants.

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Page 1
Memorandum in Support of Unopposed Request for Entry of Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 2 of 21

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IGNACIA S. MORENO
Assistant Attorney General
Environment &Natural Resources Division
United States Department of Justice
ELISE S. FELDMAN
Environmental Enforcement Section
Environment &Natural Resources Division
United States Department of Justice
301 Howard Street, Suite 1050
San Francisco, CA 94105
[phone]
Telephone:
[phone]
Facsimile:
E-mail: Elise.Feldman(cr~,usdoj.~ov
DANIEL G. BOGDEN
United States Attorney
District of Nevada
HOLLY VANCE
Assistant United States Attorney
100 West Liberty
Suite 600
Reno, NV 89501
Telephone: [phone]
Facsimile: [phone]
E-mail: Holl, .Vance e,usdo,~~ov
Attorneys for Plaintiff United States of America

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LLOYD B. MILLER (AK Bar No.7906040)
Sonosky, Chambers, Sachse, Endreson &Perry, LLP
900 West Fifth Avenue
Suite 700
Anchorage, AK 99501-2029
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorney for the Shoshone-Paiute Tribes of the Duck Valley Reservation

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I.

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INTRODUCTION
On September 27, 2012, The State of Nevada on behalf of the Nevada Department of

Conservation and Natural Resources, Division of Environmental Protection ("NDEP") and the
Department of Wildlife ("NDOW"); the United States of America, on behalf of the United States
Environmental Protection Agency ("EPA"), the Department of the Interior's Bureau of Indian
Page 2
Memorandum in Support of Unopposed Request for Entry of Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 3 of 21

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Affairs ("BIA") and the United States Fish and Wildlife Service ("FWS"), the Department of

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Agriculture's United States Forest Service ("USFS"); and the Shoshone-Paiute Tribes of the

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Duck Valley Reservation ("Tribes") (collectively, "Plaintiffs"), filed a complaint asserting claims

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under Sections 106(a) and 107(a)(1) and (2) of the Comprehensive Environmental Response,
Compensation, &Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9606(a) and 9607(a)(1) and
(2), and Nevada Water Pollution Control Law NRS § 445A.300 to 445A.730 against Settling

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Defendants Atlantic Richfield Company, Cliffs Natural Resources f/k/a Cleveland-Cliffs Iron

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Company, E.I. du Pont de Nemours and Company, Teck American Incorporated f/k/a Teck

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Cominco American Inc., f/k/a Cominco American Inc., and Mountain City Remediation LLC,

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(collectively, "Settling Defendants") and contemporaneously filed a Notice of Lodging attaching

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a Consent Decree, ("Consent Decree"). The Consent Decree was the product of years of
extensive negotiations and resolves all of the claims asserted in the Complaint. Declaration of

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David Seter, attached hereto as Attachment A ("Seter Decl."), ¶ 4. In accordance with 28 C.F.R.

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§ 50.7, notice of the settlement was published in the Federal Register for a period of 30 days. See

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Federal Register at Volume 77, Number 193 (October 4, 2012) at pages 60723 — 60724.

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Declaration of Elise S. Feldman attached hereto as Attachment B ("Feldman Decl.") ¶ 3. As of

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the end of the public comment period, November 5, 2012, the United States had received only
one comment from the public pertaining to the settlement. Feldman Decl. ¶ 4. For the reasons
set forth below, Plaintiffs request that this Court approve and enter the Consent Decree as an

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Order of the Court at this time.

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II.

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DESCRIPTION OF SETTLEMENT
The Rio Tinto Mine Site ("Site") is an abandoned copper mine located approximately 2.5

miles south of Mountain City, in northern Elko County, Nevada. Mountain City Copper
Company conducted mining operations at the Site from 1932-1947. As asserted in the

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Page 3
Memorandum in Support of Unopposed Request for Entry of Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 4 of 21

Complaint, the Plaintiffs have incurred, and will continue to incur response costs in addressing
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contamination of the Owyhee River and Mill Creek, and natural resources have been affected by
the contamination.

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As asserted in the Complaint, each of the Settling Defendants are either current owners or
owner/operators of the mine at the time releases occurred and are therefore liable under Section
107(a) of CERCLA, 42 U.S.C. 9607(a) for the past and future response costs and for costs of

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assessing damages to natural resources. The Consent Decree resolves the claims and requires the

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Settling Defendants to do the following: (1) implement the remedy selected for the Site which

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includes, among other things, removal of mine tailings from the Owyhee River, achieving certain

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water quality standards, and providing fish passage and stream bank restoration, ("Remedy"), at

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an estimated cost of over $25 million; (2) implement additional work if monitoring after Remedy

Construction identifies elevated levels of Site contaminants, and if NDEP or EPA requires such

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additional work; (3) provide performance guarantees; (4) pay EPA $1,234,067 for past response

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costs; (5) pay NDEP and EPA certain future oversight costs; (6) pay federal natural resource

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trustees, United States Department of Interior and USFS, damage assessment costs of $709,527;

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(7) pay $150,000 to the Tribes for their past and future costs; and (8) undertake other

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commitments such as providing access, institutional controls, insurance, stipulated penalties in
the event of non-compliance and retention of records. See Sections VI (Performance of Work by
Settling Defendants), XVI (Payments for Response Costs), XVII (Payments to Natural Resource

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Trustees), IX (Access and Institutional Controls), XXI (Stipulated Penalties), XXVI (Retention of

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Records) and XIII (Performance Guarantee) of the Consent Decree.

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III.

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ANALYSIS
A.

General Principles

"The initial decision to approve or reject a settlement proposal is committed to the sound

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Memorandum in Support of Unopposed Request for Entry of Consent Decree

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discretion of the trial judge." SEC v. Randolph, 736 F.2d 525, 529 (9th Cir. 1984), quoting

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Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 625 (9th Cir. 1982); accord; United

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States v. Union Elec. Co., 132 F.3d 422, 430 (8th Cir. 1997); United States. v. Jones &Laughlin

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Steel Corp., 804 F.2d 348, 351 (6th Cir. 1986). Courts typically accord substantial deference to
settlement agreements because "[t]he law generally favors and encourages settlements." Metro.
Hous. Dev. Corp. v. Vill.

ofArlington Heights, 616 F.2d 1006, 1013 (7th Cir. 1980).

United

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States v. Akzo Coatings ofAm. Inc., 949 F.2d 1409, 1436 (6th Cir. 1991) (there is a "presumption

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in favor of voluntary settlement").

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Judicial deference to negotiated settlements is particularly appropriate where the
government has entered into a consent decree. The Supreme Court has itself articulated the

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significant deference owed to the judgment of the United States in settling a matter:
[S]ound policy would strongly lead us to decline ... to assess the wisdom of the
Government's judgment in negotiating and accepting the ...consent decree, at
least in the absence of any claim of bad faith or malfeasance on the part of the
Government in so acting.
Sam Fox Publ'g Co. v. United States, 366 U.S. 683, 689 (1961). 81 S.Ct. 1309, 1312-1313, 6
L.Ed.2d 604 (1961).
As the Ninth Circuit has explained, "[the] policy of encouraging early settlements is

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strengthened when a government agency chaxged with protecting the public interest `has pulled

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the laboring oar in constructing the proposed settlement"'; indeed, "a district court reviewing a

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proposed consent decree `must refrain from second-guessing the Executive Branch."' United

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States. v. Montrose Chem. Corp., 50 F.3d 741, 746 (9th Cir. 1995), quoting United States v.
Cannons Eng'g Corp., 899 F.2d 79, 84 (1st Cir. 1990).
Judicial deference to a settlement negotiated by the government is "particularly strong
where a consent decree has been negotiated by the Department of Justice on behalf of a federal

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Memorandum in Support of Unopposed Request for Entry of Consent Decree

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administrative agency like EPA which enjoys substantial expertise in the environmental field."

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Akzo Coatings, 949 F.2d at 1436. See also United States v. Chevron USA, Inc., 380 F.Supp. 2d

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1104, 1111 (N.D. Cal 2005); Intl Fabricare Inst. v. United States EPA, 972 F.2d 384, 389 (D.C.

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Cir. 1992) ("The rationale for deference is particularly strong when the EPA is evaluating
scientific data within its technical expertise"). Courts have expressed a presumption in favor of
settlement where the governmental agencies charged with enforcing environmental statutes have

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negotiated a consent decree. Cannons, 899 F.2d at 84; Montrose Chem. Corp., 50 F.3d at 746-

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47; Kelley v. Thomas Solvent Co., 790 F.Supp. 731, 735 (W.D. Mich. 1991). This limited

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standard of review for governmental actions reflects the "strong public policy in favor of

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settlements, particularly in very complex and technical regulatory contexts." United States. v.

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Davis, 261 F.3d 1, 27 (1st Cir. 2001) (internal quotation and citation omitted).
B.

The Legal Standard to be Applied

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In light of the policy in favor of settlements and the deference given to settlements

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negotiated by the government, a court should approve entry of a consent decree under CERCLA

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when the decree is fair, reasonable, and in conformity with applicable laws. United States v.

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Oregon, 913 F.2d 576, 580 (9th Cir. 1990).

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A court is not required to make the same in-depth analysis of a proposed settlement that it
would be required to make when entering a judgment on the merits after trial. Citizens for a
Better Env't v. Gorsuch, 718 F.2d 1117, 1126 (D.C. Cir. 1983); United States v. County of

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Muskegon, 33 F.Supp. 2d 614, 620 (W.D. Mich. 1998) ("Because a consent judgment represents

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parties' determination to resolve a dispute without litigating the merits, the court's role is not to

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resolve the underlying legal claims, but only to determine whether the settlement negotiated by

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the parties is in fact a fair, reasonable and adequate resolution of the disputed claims"). The

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relevant standard "is not whether the settlement is one which the court itself might have

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fashioned, or considers as ideal, but whether the proposed decree is fair, reasonable, and faithful

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to the objectives of the governing statute." Cannons, 899 F.2d at 84; United States. v. DiBiase,

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45 F.3d 541, 543 (lst Cir. 1995); United States. v. Charles George Trucking, Inc., 34 F.3d 1081,

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1084 (1st Cir. 1994).

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IV.

ARGUMENT

The settlement is fair, reasonable, consistent with the goals of CERCLA, and is in the
public interest.
A.

The Consent Decree is Fair

In determining whether a settlement is fair, the Court considers both procedural fairness
and substantive fairness. Cannons, 899 F.2d at 86; Chevron, 380 F.Supp. 2d at 1111. "To
measure procedural fairness, a court should ordinarily look to the negotiation process and attempt
to gauge its candor, openness, and bargaining balance." Cannons, 899 F.2d at 86. The settlement
is procedurally fair if it was negotiated in a fair manner. Id. at 84.

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This settlement was procedurally fair. Each party to this Consent Decree was represented

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by experienced counsel and assisted by knowledgeable environmental consultants. Seter Decl. at

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¶ 3. Given the complexity of the technical issues involved in this case, the teams from each

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party worked together in negotiating resolution of difficult technical issues as well as resolving
the legal issues this case presented. Seter Decl. at ¶ 3. Negotiations have been on-going for
many years and have included multiple in-person negotiation sessions among the various parties

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in Nevada, California, and Colorado, as well as years of telephone and email negotiations. Seter

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Decl. at ¶ 4. In light of these facts, this settlement is fair. See Cannons, 899 F.2d at 86.

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B.

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As the product of "adversarial vigor," this settlement comes to the Court with an

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The Consent Decree is Substantively Fair

assurance of substantive fairness. United States v. Montrose Chem. Corp., 793 F. Supp. 237, 240

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(C.D. Cal. 1992). As the First Circuit stated in Cannons "[s]ubstantive fairness introduces into

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the equation concepts of corrective justice and accountability: aparty should bear the cost of the

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harm for which it is legally responsible." 899 F.2d at 87. See also Davis 261 F.3d at 23 ("A

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finding of procedural fairness may also be an acceptable proxy for substantive fairness, when
other circumstantial indicia of fairness are present."); United States v. Charles George, 34 F.3d at

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1087-89. In reviewing substantive fairness, the Court need only determine whether a proposed

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consent decree reflects a reasonable compromise of the litigation. Rohm &Haas, 721 F.

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Supp.666, 685 (D.N.J. 1989). Factors considered by courts reviewing CERCLA consent decrees

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for fairness include "`the strength of the plaintiffs' case, the good faith efforts of the negotiators,

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the opinions of counsel, and the possible risks involved in the litigation if the settlement is not

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approved."' Kelley v. Thomas Solvent Co., 717 F. Supp. 507, 517 (W.D. Mich. 1989) (citing
United States v. Hooker Chem. &Plastic Corp., 607 F. Supp. 1052, 1057 (W.D.N.Y.), aff'd, 776
F.2d 410 (2d Cir. 1985); cf. Hiram Walker, 768 F.2d at 899.
The Consent Decree is also substantively fair. It resolves the liability of the Settling

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Defendants and gives them time to accomplish the Remedy, but requires from them a significant

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cleanup effort that will extend over a period of many years and cost millions of dollars. Consent

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Decree at Section VI (Performance of the Work by Settling Defendants). Moreover, it requires
that the Settling Defendants provide funding for the Tribes and reimbursement of Nevada and the
United States' response costs and past natural resource damage assessment costs. Consent

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Decree at Section V (General Provisions). Importantly, this settlement also takes into account

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litigation risks and the avoided costs of resolution short of litigation. Seter Decl. at ¶ 5.

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Accordingly, the Consent Decree is fair. See United States v. Oregon, 913 F.2d at 580.

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C.

The Consent Decree is Reasonable

A consent decree is reasonable if it is designed to recover costs and provide a practical

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and appropriate redress that the defendant is in a position to implement, and the United States can

2

efficiently enforce. See Cannons, 899 F.2d at 89-90. As noted above, this Consent Decree

3

achieves these goals through work and payment requirements that the Consent Decree places on

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the Settling Defendants. See above at Section II of this Memorandum listing obligations of the

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Settling Defendants.
The Consent Decree is in the Public Interest and Consistent with CERCLA

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D.

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A primary role of the Court in reviewing an environmental settlement is to determine

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"whether the decree comports with the goals of Congress." Sierra Club v. Coca-Cola Corp., 673

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F.Supp. 1555, 1556 (M.D. Fla. 1987). The Court's role is not to determine whether the settlement

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is one that will best serve society, but rather to confirm that the settlement is within the reaches of
the public interest. United States v. Microsoft Corp., 56 F.3d 1448, 1460 (D.C. Cir. 1995),
quoting United States v. W. Elec. Co., 900 F.2d 283, 309 (D.C. Cir. 1990) (emphasis in original)
(additional citations omitted).
The proposed Consent Decree is consistent with the goals of CERCLA. CERCLA was

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enacted to combat the environmental and health risks posed by industrial pollution by creating a

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mechanism for cleaning up sites contaminated with hazardous substances. United States v.

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Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 1881, 141 L.Ed.2d 43 (1998); Key Tropic Corp. v.
U.S., 511 U.S. 809, 814, 114 S.Ct. 1960, 1964, 128 L.Ed.2d 797 (1994). The Consent Decree
implements CERCLA's statutory goals by requiring the Settling Defendants to undertake the

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Remedy which will permanently protect the Owyhee River from contamination from tailings on

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Site, and in addition, to undertake further investigation to determine whether a second source for

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the contamination exists in underground mine workings. Consent Decree at Section VI

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(Performance of the Work by Settling Defendants). Thus, consistent with the goals of CERCLA,

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the Consent Decree will result in preventing releases of hazardous substances into portions of the

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Page 9
Memorandum in Support of Unopposed Request for Entry of Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 10 of 21

1

Owyhee River and Mill Creek. Moreover, the settlement provides for payment of certain future

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costs of EPA and NDEP, as well as $1,234,067.74 of past EPA response costs and $709,527.81

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of past natural resource damage assessment costs of the United States Department of the Interior

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5
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and USFS; and payment of $150,000 to the Tribes to fund their continued participation at the
Site. Consent Decree at Section XVI (Payments of Response Costs and Section XVII (Payments
to Natural Resource Trustees) Accordingly, this settlement meets the goals of CERCLA of

8

effecting a cleanup and recovering response costs. The Consent Decree is also in the public's

9

best interest because avoiding litigation spares taxpayer resources as well as the resources of the

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other parties and the Court.
E.

The Comment Received Does Not Impact the Fairness of the Settlement

The United States received one comment from the public pertaining to this settlement: an
email sent by Jennifer Unekis. Attachment A to Feldman Decl., ("Comment"). Ms. Unekis is the

15

daughter of Doris Widerberg, the owner of the Rio Tinto Mine, ("Property"). Feldman Decl. ¶ 4.

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Pursuant to the terms of the Consent Decree, the State and the United States reserved the right to

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withdraw or withhold its consent for the entry of the Consent Decree if any comments received

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"disclose facts or considerations that indicate that this Consent Decree is inappropriate, improper,

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or inadequate." The Comment does not disclose any relevant facts or considerations indicating
that the Consent Decree is in any way inappropriate, improper or inadequate.
The Comment provides a history of Ms. Widerberg's ownership of the Property and

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references discussions by the RTWG with Ms. Widerberg for the purchase of the Property. See

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Comment, generally. The Comment describes frustration regarding ownership of contaminated

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property, and references a rejected offer made by the RTWG to Ms. Widerberg to purchase the

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Property. Neither subject is relevant to the analysis of whether this Consent Decree is fair and

27

achieves the goals of the statute. The offer by the RTWG would have resulted in a separate real

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Page 10
Memorandum in Support of Unopposed Request for Entry of Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 11 of 21
1

estate transaction with Ms. Widerberg that would not involve the Plaintiffs to this action.

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Accordingly, the concerns raised by the Comment do not impact the conclusion that this Consent

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Decree is fair and in the public interest.
V.

CONCLUSION
The Consent Decree is fair, reasonable, and in the public interest, and the Court should

grant the Plaintiffs' Unopposed Request for Entry of the Consent Decree.
Respectfully submitted,

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9

FOR THE STATE OF NEVADA

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CATHERINE CORTEZ MASTO
Attorney General

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Date: 12/12/12

Carolyn E. Tanner
/s/
CAROLYN E. TANNER (Bar No. 5520)
Senior Deputy Attorney General

Date: 12/12/12

/s/
Nhu Q Nguyen
NHU Q. NGUYEN (Bar No. 7844)
Senior Deputy Attorney General
5420 Kietzke Lane, Suite 202
Reno, Nevada 89511
Telephone: [phone]
Facsimile: [phone]

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FOR THE UNITED STATES OF AMERICA

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IGNACIA S. MORENO
Assistant Attorney General
Environment and Natural Resources Division
United States Department of Justice

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Date: 12/12/12

/s/ Elise S. Feldman
ELISE S. FELDMAN
Trial Attorney
Page 11

Memorandum in Support of Unopposed Request for Entry of~Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 12 of 21

Exhibit A

Exhibit A

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 13 of 21

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
UNITED STATES OF AMERICA, STATE OF
NEVADA THROUGH ITS DEPARTMENT OF
NATURAL RESOURCES, DNISION OF
ENVIRONMENTAL PROTECTION, A and THE
SHOSHONE-PAIUTE TRIBES OF THE DUCK
VALLEY RESERVATION,
Plaintiffs,
~~!
ATLANTIC RICHFIELD COMPANY, THE
CLEVELAND-CLIFFS IRON COMPANY, E.I
DU PONT DE NEMOURS AND COMPANY,
TECK AMERICAN INCORPORATED, and
MOUNTAIN CITY REMEDIATION, LLC,
Defendants.

Civil Action No.
DECLARATION O~ DAVID
S~TER IN SUPPORT OF
UNOPPOSED REQUEST FOR
ENTRY OF CONSENT DECREE

I, David Seter, pursuant to 28 U.S.C. § 1746, hereby swear and affirm under penalty of
perjury that the following is true and correct, either of my own personal knowledge or based on
my review of records of the United States Environmental Protection Agency ("EPA") related to
the Rio Tinto Mine Site located in Elko County, Nevada ("Site"), and thatIam competent to
testify regarding these matters.
I.

I am employed by the United States Environmental Protection Agency. Icurrently

hold the position of Remedial Project Manager in the Superfund Division of Region 9, in San
Francisco, California. 1 have worked at EPA since May, 1987 andIhave been employed as a
Remedial Project Manager since August, 1993. I am the currently EPA's Remedial Project
Manager assigned to the Site.
2.

The Site is an abandoned copper mine located approximately 2.5 miles south of
Page 1

Declaration of David Seter in Support of Unopposed Request for Entry of Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 14 of 21

Mountain City, in northern Elko County, Nevada. Mountain City Copper Company conducted
mining operations from 1932-1947.
3.

Each party in this case was represented by experienced counsel and assisted by

knowledgeable environmental consultants. Given the complexiTy of the technics] issues involved
in this case, these teams worked together in negotiating resolution of difficult technical issues as
well as resolving the legal issues this case presented.
4. Negotiations have been on-going for many years and have included multiple in-person
negotiation sessions among the carious parties in Nevada, California, and Colorado, as well as
years of telephone and email negotiations.
5. This settlement also takes into account litigation risks and the avoided costs of
resolution short of litigation.
6. Implementation of the Remedy selected in the Record of Decision for this Site is
estimated to cost $25 million.

Dated:

~ ~ r~ `~ ~ "~"

By:

David Seter

Page 2
Declaration of David Seter In Support of Unopposed Request for Entry of Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 15 of 21

Exhibit B

Exhibit B

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 16 of 21

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
UNITED STATES OF AMERICA, STATE OF
NEVADA THROUGH ITS DEPARTMENT OF
NATURAL RESOURCES, DIVISION OF
ENVIRONMENTAL PROTECTION, A and THE
SHOSHONE-PAIUTE TRIBES OF THE DUCK
VALLEY RESERVATION,
Plaintiffs,
v.
ATLANTIC RICHFIELD COMPANY, THE
CLEVELAND-CLIFFS IRON COMPANY, E.I.
DU PONT DE NEMOURS AND COMPANY,
TECK AMERICAN INCORPORATED, and
MOUNTAIN CITY REMEDIATION, LLC,

Civ. Action No. 3:12-cv-00524-RCJWGC
DECLARATION OF ELISE S.
FELDMAN IN SUPPORT OF
UNOPPOSED REQUEST FOR
ENTRY OF CONSENT DECREE

Defendants.

I, Elise S. Feldman, pursuant to 28 U.S.C. § 1746, hereby swear and affirm that the
following is true and correct, related to the Rio Tinto Mine Site.

Natural Resources Division, Environmental Protection Section. My office

is

Iam a Trial Attorney at the United States Department of Justice, Environment and
located at 301

Howard Street, San Francisco, California. Ihave been a Trial Attorney for the United States
Department of Justice since Apxil of 1999. I am the United States' lead counsel far the above
captioned litigation pertaining to the Rio Tinto Mine Site, located in Elko, Nevada.
2.

On September 27, 2012, the State of Nevada, the United States, and the Shoshone-

Paiute Tribes of the Duck Valley Reservation ("Tribes"), (collectively, "Plaintiffs") lodged a
Consent Decree setting forth the terms of the agreement between the State of Nevada, the United
States, the Tribes, and Defendants Atlantic Richfield Company, Cliffs Natural Resources f/k/a
Page 1
Declaration of Elise S. Feldman In Support of Unopposed Request for Entry of Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 17 of 21
Cleveland-Cliffs Iron Company, E.I. du Pont de Nemours and Company, Teck American
Incorporated f/k/a Teck Cominco American Inc., f/k/a Cominco American Inc., and Mountain
City Remediation LLC, (collectively, "Settling Defendants") setting forth the agreement between
the Plaintiffs and the Settling Defendants.
The United States published notice of the lodging of this Consent Decree in the
Federal Register at Volume 77, Number 193 (October 4, 2012) at pages 60723 - 60724.
The United States received one comment on the Consent Decree, an email from

4.

Jennifer Unekis dated November 5, 2012, 5:57 pm., a true and accurate copy is attached hereto as
Attachment A.

Dated:

; - l~ - /~
~

By:

~C~ ~ ~~n~,
Elise S. Feldman

Page 2
Declaration of Elise S. Feldman In Support of Unopposed Request for Entry of Consent Decree

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 18 of 21

ATTACHMENT A

ATTACHMENT A

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 19 of 21

From: Jennifer Unekis [mailto:j unekisCc?hotmaii.com]
Sent: Monday, November 05, 2012 5:57 PM
To: ENRD, PUBCOMMENT-EES (ENRD)
Subject: Rio Tinto remediation Mountain City, Nevada
To whom it may concern in regards to the remediation project at the Rio Tinto mine site outside of
Mountain City Nevada.
My mother Doris Widerburg purchased the Rio Tinto mine located near Mountain City, NV 30 years ago
with her brother Richard who had been missing from the family for many years. He had been living on
the property (I believe as a caretaker) and he felt it would be a good investment. Although I feel he
prayed on her desire to keep him in contact with the family too.
One of the questions she asked the attorney involved in the sale at the time was if the property had any
environmental concerns and was told it did not. Whether misguided or not we will never know.
Shortly after purchase of the property she found out that it did have environmental concerns and was
told that she could not do mining or use the property for any other uses due to its toxicity. When I was
was thirteen to about sixteen my family would stay at the mine from time to time and she would work
with her brother on possible uses for the property and take ore samples around the property. No work
was done because we didn't want to contribute to the environmental concerns. During this time we
would also work in the Diner in Mountain City.
About 15 years ago after many years of discussion among the EPA and other agencies she agreed to
contractual agreement with the prior mining companies (The Working Goup) that owned the Rio Tinto
and were responsible for it's contamination. She agreed to allow the remediation to take place and was
also released from any contributing factors to the properties contamination. Shortly after she also agreed
to have some B.L.M. Forestry land signed over to her. The B.L.M. did a full title search for transfer of the
property.
At the time she agreed to the contract for remediation she had been told that this project would take
about two years to complete and she would be able to have use of the land again. This did not happen.
After many years of not being cleared to use the property and the failing of the remediation project
another plan had been considered by the mining companies. .
Currently the "Working Group" is in the process of continuing forward with the remediation. After almost
30 years of having land that we purchased on hold due to contamination the Working Group made us an
offer of purchase after many months of stringing us along of 50,000 in 2011. 50,000 dollars for 250 acres
of land that has been tied up for 3Q years and is involved in a 25 million dollar remediation project
seemed like a slap in the face. It probably took more money to pay the attorney fees to come up with the
offer. They also offered a 1 1/2 %allowance of gross of any future money that may be made from
minerals. If they so strongly feel there is not value in the property why would they have included that.
Especially since we had asked to not have it be a part of the agreement.

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 20 of 21

Doris is now 79 years old. She was 49 at the time she purchased the property. Oddly the same age I am
today. She has very little financial support. She is attached to this property in part due to her attachment
to the memory of her brother who died on the property and the hope that she would be able to some
day at least be able to reclaim her investment in the property. She originally purchased the property
using a divorce settlement with my father whom we suffered from years of abuse. And although it was
not a lot of money, it at the time could have helped she and my two siblings when we didn't have a very
stable life and virtually no income. It in many ways was her dream for a new start.
Thirty years later this property has been a drain on her emotionally and financially as well as being a
drain on our entire family.
She was also told that the water rights that the property had would transfer to her at the time of
purchase. Soon after she hired someone to trace the rights and had received copies of the claims from
the Nevada Dept. of Water Resources that she was later told were no goad. One of the possible uses for
the property that the "Working Group" along with consent of the EPA had suggested at one time was a
fresh water fish farm. Which would of course mean the use of water. Or if the remediation is successful
possible grazing use. Losing the water rights also of course keeps any more even small scale mining out
of the question for the property. Whether that would be feasible or not.
I personally have an emotional dis-attachment to this property. It has caused our family many years of
battles with the previous mining companies, lawyers, attempting to be helpful to the needs of the EPA
and even enduring people who stole an entire building for scrap from the property. My mother has lived
far below the poverty level for many years. With her children helping as we can. And the dollar amount
that has been thrown around by lawyers and the Mining Group for the remediation is unreal. She has
been completely kept out of the loop with plans for the project and treated as though she is not the one
who has had her land tied up for any use for 30 years.
I greatly appreciate the time you have taken to read this letter. I am not sure how this letter could help
my mothers situation, but in looking into the status of
the remediation project today I found this notice (attached). It had this address to respond to the notice.
The drive to write this letter was due to the quotations in various media posts about what a great job the
Working Group are doing toward their goal of completing this remediation. They have worked closely
with the native people in the area and the EPA. We on the other had have been strung along and told lies
for years. Lies that they wanted to work with us, that they would make us a "fair" offer on the land and
lies that after the first failed remediation that we would have use of the property.
Another concern is weather or not there is value in the tailings that they are planning on moving. At one
time my mother was told that they planned on processing them to help pay for the remediation. We still
have not idea if that is or is not happening.
My mother may have been used to try to shield the mining companies from having to pay for the
pollution and toxic waste they created on the property. I am still not sure how they could have not
disclosed the hazards the property had at the time of sale. Yet some how we praise the Working Group
for their good deeds in caring for our environment. Meanwhile my mother has paid taxes for years she
has not use of, not to mention not being able to receive government financial support due to it being
considered "income property".

Case 3:12-cv-00524-RCJ-WGC Document 8-1 Filed 12/12/12 Page 21 of 21

I am sorry if this letter is a little confusing. I had about an hour to come up with something to send
before the deadline had passed.

Thank you,
Jen Unekis
707 W. 4th St.
Lawrence, KS 66044
785-766-1469

Case 3:12-cv-00524-RCJ-WGC Document 8-2 Filed 12/12/12 Page 1 of 1

1

IN THE UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
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UNITED STATES OF AMERICA, STATE OF
NEVADA THROUGH ITS DEPARTMENT OF
NATURAL RESOURCES, DIVISION OF
ENVIRONMENTAL PROTECTION, A and THE
SHOSHONE-PAIUTE TRIBES OF THE DUCK
VALLEY RESERVATION,

7
v.

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Civ. Action No. 3:12-cv-00524-RCJWGC

Plaintiffs,
ATLANTIC RICHFIELD COMPANY, THE
CLEVELAND-CLIFFS IRON COMPANY, E.I.
DU PONT DE NEMOURS AND COMPANY,
TECK AMERICAN INCORPORATED, and
MOUNTAIN CITY REMEDIATION, LLC,

12

[PROPOSED] ORDER TO ENTER
CONSENT DECREE

Defendants

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For the reasons set forth in the Plaintiffs' Unopposed Request for Entry of Consent
Decree and Memorandum in Support thereof and for good cause shown, the Consent Decree is
hereby ENTERED and shall constitute a final judgment of the Court as to the above captioned

19

matter pursuant to Fed. R. Civ. P. 54 and 58.

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IT IS SO ORDERED:

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May 20, 2013
Date

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HONORABLE ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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Page 1
Order to Enter Consent Decree