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United Nuclear Corp. v. United States

United States District Court, D. New Mexico

January 3, 2018

UNITED NUCLEAR CORP., EL PASO NATURAL GAS CO., L.L.C., AND HOMESTAKE MINING CO. OF CALIFORNIA, Plaintiffs/Counterdefendants,
v.
UNITED STATES OF AMERICA, Defendant/Counter plaintiff.

          FOR THE UNITED STATES OF AMERICA JONATHAN BRIGHTBILL DEPUTY ASSISTANT ATTORNEY GENERAL ENVIRONMENT AND NATURAL RESOURCES DIVISION

          EMILY C. POWERS ASIA MCNEIL-WOMACK TRIAL ATTORNEY

          ERICA ZILIOLI SJMIBHAT TRIAL ATTORNEY

          JAMES D. TIERMEY ACTING UNITED STATES ATTORNEY

          MANNY LUCERO ACTING UNITED STATES ATTORNEY

          PAMELA TRAVIS ASSISTANT REGIONAL COUNSEL

          KENNETH PAUR REGIONAL ATTORNEY

          CONSENT DECREE

         TABLE OF CONTENTS

         I. BACKGROUND................................................................................................................1

         II. JURISDICTION.................................................................................................................4

         III. PARTIES BOUND.............................................................................................................4

         IV. DEFINITIONS....................................................................................................................4

         V. STATEMENT OF PURPOSE............................................................................................8

         VI. PAYMENT OF RESPONSE COSTS.................................................................................8

         VII. FAILURE TO COMPLY WITH CONSENT DECREE..................................................11

         VIII. COVENANTS BY THE UNITED STATES...................................................................13

         IX. RESERVATION OF RIGHTS BY UNITED STATES...................................................13

         X. COVENANTS BY PLAINTIFFS/COUNTERDEFENDANTS AND SETTLING FEDERAL AGENCIES....................................................................................................15

         XI. EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION..................................17

         XII. ACCESS TO INFORMATION........................................................................................19

         XIII. RETENTION OF RECORDS..........................................................................................21

         XIV. NOTICES AND SUBMISSIONS....................................................................................23

         XV. RETENTION OF JURISDICTION..................................................................................25

         XVI. INTEGRATION/APPENDICES......................................................................................25

         XVII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT....................................25

         XVII. SIGNATORIES/SERVICE...............................................................................................26

         XIX. FINAL JUDGMENT.........................................................................................................26

         I. BACKGROUND

         A. United Nuclear Corporation ("United Nuclear"), El Paso Natural Gas Company, L.LG. ("EPNG"), and Homestake Mining Company of California ("Homestake") (collectively, the "Plaintiffs/Counterdefendants") filed a complaint in this matter against the United States of America pursuant to Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.SG. § 9607 ("CERCLA") and federal common law, seeking reimbursement of Plaintiffs 7Counterdefendants' response costs incurred and to be incurred for response actions taken in connection with the release of hazardous substances at the San Mateo CERCLA Site in the Cibola National Forest, which is managed by the U.S. Forest Service ("USFS"), in New Mexico (the "Site").

         B. The United States filed a counterclaim in this matter pursuant to Sections 107 and 113 of CERCLA, 42 U.S.C. §§ 9607 & 9613, seeking reimbursement of response costs incurred and to be incurred for response actions taken or to be taken at or in connection with the release or threatened release of hazardous substances at the Site, and for equitable allocation of Plaintiffs 7Counterdefendants' response costs in the event the United States were to be found liable with respect to the claims alleged in the Complaint.

         C. The Site, as depicted in Appendix B to this Consent Decree, is the location of the former San Mateo Uranium Mine and includes a portion of the Lee Ranch. United Nuclear, EPNG, and Homestake all owned perfected unpatented mining claims, and mined and/or conducted assessment and exploration activities at the Site during the period between 1957 and 1988, when hazardous substances, including at least radium 228 and thorium 230, were released as a result of the mining operations performed there.

         D. In the 1980s, the United States Environmental Protection Agency ("EPA") and the New Mexico State Environmental Improvement Division began investigations at the Site. In 1994, the USFS finalized a Site Inspection report (the "Report") that noted high levels of radionuclides from uranium wastes at the Site. The Report also concluded that radioactive materials and other contaminants were present in the groundwater at the Site and that the hazardous substances were being transported from the Site in surface runoff. The Report contained a recommendation that Site restoration activities occur and that uranium waste rock at the Site be contained. In 2010, the USFS issued a final Engineering Evaluation/Cost Analysis ("EE/CA") report that assessed the Site hazards described in the Report and selected a removal action to address those hazards (the "Removal Action"). The Removal Action consisted of: (1) screening for contaminated materials; (2) excavating contaminated soil, rock, and mining waste; (3) consolidating the soil, rock, and mining rock in an onsite, in-ground repository; and (4) capping the repository with a vegetated soil cover.

         E. In June 2011, based on the Report and EE/CA, the USFS issued a Unilateral Administrative Order ("UAO"), pursuant to CERCLA Section 106(a), 42 U.S.C. § 9606(a), which directed United Nuclear, EPNG, and Homestake - along with another entity, Western Energy Development Corp., that is not a party to this settlement or this litigation - to implement the Removal Action. EPA reviewed and concurred in the UAO prior to its issuance.

         F. Pursuant to UAO, Plaintiffs/Counterdefendants are implementing the Removal Action, incurring, to date, approximately $8 million in costs.

         G. The Removal Action is not yet complete. Plaintiffs/Counterdefendants continue to be bound by the terms of the UAO and are obligated to perform in accordance with its terms.

         H. The United States has incurred approximately $425, 000 in response costs from response actions in connection with the Site and overseeing the performance of the UAO, including approximately $25, 000 in costs incurred by EPA and approximately $400, 000 incurred by the USDA and USFS. The United States anticipates incurring additional response costs in the future.

         I. Plaintiffs/Counterdefendants claim that the United States is liable for and should pay an equitable share of the response costs incurred and to be incurred by Plaintiffs/Counterdefendants in connection with the Site pursuant to Sections 107(a) and 113 of CERCLA, 42 U.S.C. §§ 9607(a) and 9613, alleging that the Site is located on federal land managed by the USFS and that the United States Atomic Energy Commission (of which the Department of Energy is a successor-in-interest) purchased uranium mined at the Site.

         J. The United States alleged in the Counterclaim that Plaintiffs/Counterdefendants are responsible parties pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and thus are jointly and severally liable for all response costs incurred and to be incurred at the Site.

         K. The parties entering into this Consent Decree do not admit any liability arising out of the transactions or occurrences alleged in the Complaint or Counterclaim.

         L. The United States and Plaintiffs/Counterdefendants agree, and this Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith, that settlement of this matter without further litigation and without the admission or adjudication of any issue of fact or law is appropriate and will avoid prolonged and complicated litigation between the Parties, and that this Consent Decree is fair, reasonable, and in the public interest.

         THEREFORE, with the consent of the Parties to this Decree, it is ORDERED, ADJUDGED, AND DECREED:

         II. JURISDICTION

         1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§1331 and 1345 and 42 U.S.C. § 9607 and 9613(b) and also has personal jurisdiction over the Parties. Solely for the purposes of this Consent Decree and the underlying Complaint and Counterclaim, the Parties waive all objections and defenses that they may have to jurisdiction of the Court or to venue in this District. The Parties will not challenge entry or the terms of this Consent Decree or this Court's jurisdiction to enter and enforce this Consent Decree. The Counterclaim constitutes an "initial action for the recovery of costs" within the meaning of Section 113(g)(2), 42 U.S.C. § 9613(g)(2), at the Site, and any subsequent action by the United States to recover any response costs under CERCLA Section 107, 42 U.S.C. § 9607, for the Site, not addressed by this Consent Decree, shall be a "subsequent action" for further response costs within the meaning of Section 113(g)(2).

         III. PARTIES BOUND

         2. This Consent Decree is binding upon the Parties and upon their successors and assigns. Any change in ownership or corporate or other legal status, including, but not limited to, any transfer of assets or real or personal property, shall in no way alter the status or responsibilities of Plaintiffs/Counterdefendants under this Consent Decree.

         IV. DEFINITIONS

         3. Unless otherwise expressly provided in this Consent Decree, terms used in this Consent Decree that are defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning assigned to them in CERCLA or in such regulations. Whenever terms listed below are used in this Consent Decree or its appendices, the following definitions shall apply:

"CERCLA" means the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C. §§ 9601-9675.
"Consent Decree" means this Consent Decree and all appendices attached hereto. In the event of conflict between this Consent Decree and any appendix, this Consent Decree shall control.
"Day" or "day" means a calendar day. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal or State holiday, the period shall run until the close of business on the next working day.
"DOJ" means the U.S. Department of Justice and its successor departments, agencies, or instrumentalities.
"EE/CA" means the 2010 Engineering Evaluation/Cost Analysis that assessed the Site hazards described in the Report and identified the Removal Action that was required to be completed pursuant to the UAO.
"Effective Date" means the date upon which approval of this Consent Decree is recorded on the Court's docket.
"EPA" means the U.S. Environmental Protection Agency and its successor departments, agencies, or instrumentalities.
"EPA Hazardous Substance Superfund" means the Hazardous Substance Superfund established by the Internal Revenue Code, 26 U.S.C. § 9507.
"Interest" means interest at the rate specified for interest on investments of the EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507, compounded annually on October 1 of each year, in accordance with 42 U.S.C. § 9607(a). The applicable rate of interest shall be the rate in effect at the time the interest accrues. The rate of interest is subject to change on October 1 of each year. Rates are available online at https://www.epa.gov/superfund/superfund-interest-rates.
"Paragraph" means a portion of this Consent Decree identified by an Arabic numeral or an upper or lower case letter.
"Parties" means the United States, including the Settling Federal Agencies, and ...

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