Case 1:18-cv-00319-WJ Document 606 Filed 05/07/21 Page 1 of 13
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`UNITES STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
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`In re: Gold King Mine Release in San Juan
`County, Colorado on August 5, 2015
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`This Document Relates to:
`No. 1:18-cv-00319-WJ/LF
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`
`No. 1:18-md-02824-WJ
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`STATE OF UTAH AND MINING DEFENDANTS’ JOINT MOTION AND
`SUPPORTING BRIEF TO APPROVE AND ENTER PROPOSED CONSENT DECREE
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`Plaintiff the State of Utah (“Utah”) and Defendants Sunnyside Gold Corporation
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`(“SGC”), Kinross Gold Corporation (“KGC”), and Kinross Gold U.S.A., Inc. (“KGUSA”)
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`(collectively “Mining Defendants”) jointly move the Court to approve and enter the proposed
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`Consent Decree lodged with the Court on March 17, 2021. (See MDL ECF 1141-1 at pp. 1-14).1
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`This motion is supported by the following brief.
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`INTRODUCTION
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`Utah sued the Mining Defendants alleging a release of hazardous substances at the
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`Gold King Mine near Silverton, Colorado on August 5, 2015 (“Blowout”), as well as alleging
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`past and present releases of hazardous substances from nearby mines and mine workings. (See
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`MDL ECF 93 at p. 2, ¶¶ 1-3; p. 13, ¶ 73; p. 23, ¶ 132 (filed in MDL Case 1:18-cv-00319-
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`WJ/LF (D. Utah))). Utah’s claims against the Mining Defendants include tort claims and
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`1 References to “MDL ECF” are to documents as filed and numbered in MDL Case 1:18-md-
`02824-WJ (D.N.M.) unless specifically noted otherwise in the citation. KGC, KGUSA, and
`SGC have previously moved for summary judgment in this case, asserting that they are not
`subject to personal jurisdiction in New Mexico. Those motions are fully briefed and awaiting
`the Court’s decision. By filing this motion, the Mining Defendants are not intending to waive
`their jurisdictional arguments in general; rather, they are filing this motion and consenting to
`jurisdiction solely for purposes of effectuating the settlement reached as reflected in the
`Consent Decree previously filed.
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`1
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`claims under the Comprehensive Environment Response, Compensation, and Liability Act, 42
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`U.S.C. §§ 9601, et seq. (“CERCLA”). (Id. at pp. 12-20, ¶¶ 64-114). The Mining Defendants,
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`in turn, have asserted counterclaims against Utah under CERCLA for cost recovery and
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`contribution. (MDL ECF 486 at pp. 5-9, ¶¶ 29-62).
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`Over the past four years, Utah’s and the Mining Defendants’ respective claims have
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`been the subject of extensive litigation efforts. Experienced counsel have represented Utah and
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`the Mining Defendants, as well as the other parties to this matter, throughout the multi-district
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`litigation. To date, the collective litigation efforts of the parties to the multi-district litigation
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`include over one thousand filings, several million pages of document production, and more
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`than one hundred depositions.
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` On or about March 4, 2021, Utah and the Mining Defendants entered a Settlement
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`Agreement to fully and finally resolve their claims, avoid the complication and expense of
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`further litigation, and eliminate exposure to liability at trial. (See Settlement Agreement pp. 1-
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`10 (Mar. 4, 2021) (attached hereto as Exhibit 1); see also MDL ECF 1141-1 at p. 4, § G). The
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`Settlement Agreement was the result of hard-fought adversarial negotiations during a
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`mediation conducted by the Honorable Jay Gandhi, who has a wealth of experience in complex
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`civil litigation and is known for his thorough, insightful, and impartial approach to every
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`matter. During the mediation, Utah and the Mining Defendants substantively negotiated to
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`reach a compromise.
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`Pursuant to the Settlement Agreement, Utah and the Mining Defendants are required to
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`enter a Consent Decree. (Exhibit 1, Settlement Agreement at pp. 2-3, ¶ 5). With respect to the
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`CERCLA claims, the Consent Decree proposed by Utah and the Mining Defendants requires:
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`(1) the Mining Defendants to pay Utah $1,000,000 (one million dollars) in relation to Utah’s
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`2
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`CERCLA claims; (2) Utah to covenant not to sue or to take administrative action against the
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`Mining Defendants for any and all civil claims under CERCLA that were, could now be, or
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`could hereafter be asserted with regard to the events and circumstances described in Utah’s
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`First Amended Complaint; and (3) the Mining Defendants to covenant not to sue or to assert
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`any claims or causes of actions against Utah for any and all civil claims under CERCLA that
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`were, could now be, or could hereafter be asserted with regard to the events and circumstances
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`described in Utah’s First Amended Complaint and SGC’s counterclaims. 2 (MDL ECF 1141-1
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`at p. 7, ¶¶ 5-7). Public notice of the proposed Consent Decree was given as detailed in the
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`attached Exhibit 3. Despite broad notice, no comments were received regarding the proposed
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`Consent Decree.
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`The proposed Consent Decree is fair, reasonable, and consistent with CERCLA’s goals.
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`In accordance with 42 U.S.C. § 9622(d)(1)(A), Utah and the Mining Defendants respectfully
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`request that the Court approve and enter the proposed Consent Decree.
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`STANDARD OF REVIEW
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`CERCLA encourages the use of consent decrees as a means of cleaning-up hazardous
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`waste sites, advancing public interests, and minimizing litigation. See 42 U.S.C. § 9622(a)
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`(“Whenever practicable and in the public interest, as determined by the President, the President
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`shall act to facilitate agreements under this section that are in the public interest and consistent
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`with the National Contingency Plan in order to expedite effective remedial actions and minimize
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`litigation.”). Before being entered, proposed consent decrees must be reviewed and approved by
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`2 The Settlement Agreement also resolves Utah’s tort claims against the Mining Defendants,
`pursuant to a separate payment, but the tort claims are not subject to the Consent Decree. (See
`Exhibit 1, Settlement Agreement at pp. 1-2, ¶¶ 1-2).
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`3
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`the district court with jurisdiction over the CERCLA proceedings. See 42 U.S.C.
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`§ 9622(d)(1)(A).
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`The standard of review applied by the district court in reviewing proposed consent
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`decrees is “highly deferential.” U.S. v. Atlas Minerals and Chemicals, Inc., 851 F. Supp. 639,
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`648 (E.D. Pa. 1994). The district court “cannot second-guess the wisdom of the parties’
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`decisions and should preserve their bargained-for positions whenever possible.” Id. If a
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`proposed consent decree is “fair, reasonable, and consistent with CERCLA’s goals,” it should be
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`approved and entered by the district court. See OCentro Espirita v. Board of Cnty. Commrs.,
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`2013 WL 12304059, at *2 (D.N.M. 2013) (quoting U.S. v. Colorado, 937 F.2d 505, 509 (10th
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`Cir. 1991)) (“[Consent decrees] must be ‘fair, adequate, and reasonable,’ and ‘not illegal, a
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`product of collusion, or against the public interest’.”); In re Tutu Water Wells CERCLA Litig.,
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`326 F.3d 201, 207 (3d Cir. 2003) (citing United States v. Se. Pa. Transp. Auth., 235 F.3d 817,
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`823 (3d Cir. 2000)) (“A court should approve a consent decree if it is fair, reasonable, and
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`consistent with CERCLA's goals.”). Proposed consent decrees involving only monetary
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`payments, as in this case, are generally reviewed with less stringency than proposed consent
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`decrees involving response activities. See New York v. Exxon Corp., 697 F. Supp. 677, 691
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`(S.D.N.Y. 1988); see also U.S. v. Rohm & Haas Co., 721 F. Supp. 666, 685-686 (D.N.J. 1999).
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` DISCUSSION
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`1.
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`The proposed Consent Decree is procedurally fair and substantively fair.
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`The fairness of a proposed consent decree must be evaluated in terms of both procedural
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`and substantive fairness. U.S. v. Pioneer Nat. Res. Co., 452 F. Supp. 3d 1005, 1012 (D. Colo.
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`2020) (citing U.S. v. Kerr-McGee Corp., 2008 WL 863975, at *5 (D. Colo. 2008) and U.S. v.
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`Cannons Eng. Corp., 899 F.2d 79, 86 (1st Cir. 1990)).
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`4
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`a.
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`The proposed Consent Decree is procedurally fair.
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`In evaluating the procedural fairness of a proposed consent decree, district courts analyze
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`the parties’ settlement negotiations and attempt to measure their candor, openness, and
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`bargaining balance; whether they were conducted forthrightly, in good faith, and at arm’s length
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`among experienced counsel; and whether the negotiation process was “full of adversarial vigor.”
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`Pioneer, 452 F. Supp. 3d at 1012; Cannons, 899 F.2d at 86-87; Tutu Water Wells, 326 F.3d at
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`207; Rohm & Haas Co., 721 F. Supp. at 680-681; U.S. v. Bunn, 2020 WL 6798939, at *2 (D.
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`Mont. 2020) (citing U.S. v. Pacific Gas & Elec., 776 F. Supp. 2d 1007, 1025 (N.D. Cal. 2011)
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`(quoting U.S. v. Telluride Co., 849 F. Supp. 1400, 1402 (D. Colo. 1994))). A proposed consent
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`decree can be procedurally fair, even if some parties to the litigation, including potentially
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`responsible parties (“PRPs”), did not participate in the settlement negotiations. See U.S. v.
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`Cornell-Dubilier Elecs., Inc., 2014 WL 4978635, at *5 (D.N.J. 2014) (citing Cannons, 899 F.2d
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`at 84 and U.S. v. Grand Rapids, Mich., 166 F. Supp. 2d 1213, 1221 (W.D. Mich. 2000)).
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`“Settlements achieved through extensive arms-length negotiations, and approved by all counsel
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`and the agency charged with implementation of environmental statutes[,] enjoy a strong
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`presumption of validity.” U.S. v. Hardage, 750 F. Supp. 1460, 1491 (W.D. Okla. 1990), affd.
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`982 F.2d 1436 (10th Cir. 1992).
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`The proposed Consent Decree between Utah and the Mining Defendants is the result of
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`hard-fought adversarial negotiations during a mediation at which the parties were represented by
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`experienced counsel. The mediation provided Utah and the Mining Defendants with the
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`opportunity to evaluate the strengths and weaknesses of their respective claims. Utah and the
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`Mining Defendants substantively negotiated to reach a compromise during the mediation,
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`including with respect to the proposed Consent Decree. There was no collusion before, during,
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`5
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`or after the mediation. The proposed Consent Decree therefore meets the procedural fairness
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`requirement.
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`b.
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`The proposed Consent Decree is substantively fair.
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`“Substantive fairness requires that the terms of [a proposed] consent decree [be] based on
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`‘comparative fault’ and apportion liability ‘according to rational estimates of the harm each party
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`has [allegedly] caused’.” Tutu Water Wells, 326 F.3d at 207 (quoting Se. Pa. Transp. Auth., 235
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`F.3d at 823). “As long as the measure of comparative fault . . . is not arbitrary, capricious, and
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`devoid of rational basis, the district court should uphold it.” Id. “A [proposed] consent decree
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`only need be ‘based on a rational determination of comparative fault, . . . whether or not [a
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`district court] would have employed the same method of apportionment’.” Id.
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`Utah’s claims against the Mining Defendants arise primarily from the Blowout at the
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`Gold King Mine on August 5, 2015. (See MDL ECF 93 at p. 2, ¶¶ 1-3 (filed in MDL Case 1:18-
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`cv-00319-WJ/LF (D. Utah))). The Mining Defendants assert they never owned any interest in
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`the Gold King Mine, never operated the Gold King Mine, and contend they did nothing to cause
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`the Blowout. The Mining Defendants contend the Blowout was caused by the negligence of the
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`United States Environmental Protection Agency (“EPA”) and the EPA’s contractors, as
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`acknowledged by the EPA when it initially accepted responsibility for the Blowout. (See EPA,
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`Emergency Response to August 2015 Release from Gold King Mine (available at
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`https://www.epa.gov/goldkingmine) (“EPA takes responsibility for the Gold King Mine release
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`and is committed to continue working hand-in-hand with the impacted local governments, states
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`and tribes.”)).
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`Utah alleged the Blowout was caused by the negligence of the EPA and its contractors.
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`Utah also contends SGC caused conditions contributing to the release of hazardous substances
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`during the Blowout. (See MDL ECF 93 at p. 2, ¶¶ 1-3 (filed in MDL Case 1:18-cv-00319-
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`WJ/LF (D. Utah))). Utah alleged engineered bulkheads installed by SGC in the American and
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`Terry Tunnels blocked the drainage from the tunnels, flooded the Sunnyside Mine, and caused
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`water to enter and backup the Gold King Mine until the water was released in the Blowout. (See
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`id. at p. 5, ¶¶ 21-22). The Mining Defendants dispute these allegations and contend the
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`installation of the bulkheads restored the natural hydrology of the region and there is no evidence
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`that any of the water impounded inside the Sunnyside Mine after installation of the bulkheads
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`was ever released or that it otherwise contributed to the Blowout. The Mining Defendants
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`contend installation of the bulkheads and the other reclamation work SGC performed in the
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`region improved water quality and reduced pollution in the Animas River. (See Memo. from
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`David Holm, Director of the Colorado Department of Public Health and Environment Water
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`Quality Control Division, to Carol Russell, EPA, Region VIII, Re: Consent Decree and
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`Associated Permits (May 31, 1996) (attached hereto as Exhibit 2) (SGCDOC226453)). To the
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`extent there were any discharges resulting from installation of the bulkheads or any of the
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`Mining Defendants’ other reclamation work, the Mining Defendants contend the discharges were
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`at most de minimus and that they are easily divisible from the environmental harm allegedly
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`caused by the Blowout.
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`The terms of the proposed Consent Decree between Utah and the Mining Defendants
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`represents a rational apportionment of comparative fault based on the parties’ respective
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`positions regarding liability for the Blowout. The proposed Consent Decree requires the Mining
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`Defendants to pay Utah one million dollars in relation to Utah’s CERCLA claims, which is a
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`rational apportionment of comparative fault in light of allegations that the EPA and its
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`contractors were primarily responsible for the Blowout. (See MDL ECF 1141-1 at p. 7, ¶ 5;
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`MDL ECF 93 at p. 2, ¶¶ 1-2 (filed in MDL Case 1:18-cv-00319-WJ/LF (D. Utah))). The
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`proposed Consent Decree thus meets the substantive fairness requirement.
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`2.
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`The proposed Consent Decree is reasonable.
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`To determine if a proposed consent decree is reasonable, three factors are taken into
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`consideration: (a) whether the proposed consent decree is technically adequate to achieve the
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`goal of cleaning up the environment; (b) whether the proposed consent decree sufficiently
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`compensates the public for the costs of remedial measures; and (c) whether the proposed consent
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`decree reflects the relative strength of the parties’ litigating positions. Pioneer, 452 F. Supp. 3d
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`at 1012. The assessment is “a pragmatic one, not requiring precise calculations.” Grand Rapids,
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`166 F. Supp. 2d at 1226 (quoting U.S. v. Charter Intern. Oil Co., 83 F.3d 510, 521 (1st Cir.
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`1996)). A proposed consent decree is unreasonable “if it is based on a clear error of judgment, a
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`serious mathematical error, or other indicia that the parties did not intelligently enter into the
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`compromise.” U.S. v. Acton Corp., 733 F. Supp. 869, 872 (D.N.J. 1990) (citing Rohm & Haas,
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`721 F. Supp. at 686).
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`SGC believes it has strong defenses to Utah’s claims, which make the proposed Consent
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`Decree reasonable. SGC has spent over forty million dollars on reclamation work in and around
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`the Sunnyside Mine. The reclamation work began in the early 1990s and was performed by SGC
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`in accordance with: (a) water discharge and mining permits issued by the Colorado Department
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`of Public Health and Environment, Water Quality Control Division (“WQCD”), acting pursuant
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`to delegated authority bestowed by the EPA pursuant to the Federal Water Pollution Control Act,
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`33 U.S.C. §§ 1251 to 1387 (aka the “Clean Water Act”); (b) a Mined Land Reclamation permit
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`and corresponding reclamation plan issued under the Colorado Mined Land Reclamation Act,
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`C.R.S. § 43-32-101, et seq.; and (c) a Consent Decree reviewed by the EPA and approved by a
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`Colorado court (“Colorado Consent Decree”). (See MDL ECF 42-1 at pp. 2-5, 14-16). SGC
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`substantially completed the reclamation work by the early 2000s, more than a decade before the
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`EPA and its contractors caused the Blowout at the Gold King Mine. (See id. at p. 55).
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`Because SGC’s reclamation work was subject to and undertaken in accordance with its
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`water discharge and mining permits, reclamation plan, and the Colorado Consent Decree, SGC
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`contends any discharges resulting from the reclamation work are subject to the statutory
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`exemption to CERCLA liability for federally permitted releases. See 42 U.S.C. § 9607(j)
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`(“Recovery by any person (including the United States or any State or Indian tribe) for response
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`costs or damages resulting from a federally permitted release shall be pursuant to existing law in
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`lieu of this section.”). SGC also contends that because its reclamation work began in the early
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`1990s and was substantially completed by the early 2000s, CERCLA claims related to the
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`reclamation work are time-barred by the applicable statute of limitations. See 42 U.S.C.
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`9613(g)(2)(B) (“An initial action for recovery of the costs referred to in section 9607 of this title
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`must be commenced – for a remedial action, within 6 years after initiation of physical on-site
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`construction of the remedial action . . . . A subsequent action or actions under section 9607 of
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`this title for further response costs at the vessel or facility may be maintained at any time during
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`the response action, but must be commenced no later than 3 years after the date of completion of
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`all response action.”). SGC disputes the notion that Utah can come back, over a decade after
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`SGC’s permitted reclamation work was completed, and argue that SGC’s reclamation work
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`subjects SGC to additional CERCLA liability.
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`The Mining Defendants further contend that Utah’s claims against KGC and KGUSA
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`relate to KGC’s and KGUSA’s relationship as indirect upper level parent companies of SGC,
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`with KGC the ultimate parent. (See MDL ECF 93 at p. 5, ¶ 24 (filed in MDL Case 1:18-cv-
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`9
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`00319-WJ/LF (D. Utah))). The claims include allegations that KGC and KGUSA controlled and
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`directed SGC’s activities at the Sunnyside Mine. (Id.) Utah refers to SGC, KGC, KGUSA, and
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`another unaffiliated mining company (Gold King Corporation) collectively as the “Owner
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`Defendants,” and alleges the “Owner Defendants” are owners and operators of the Sunnyside
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`Mine. (Id. at p. 4, ¶ 17; p. 12, ¶ 66). Because the allegations against SGC, KGC, and KGUSA
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`are grouped together in Utah’s claims, SGC’s defenses apply equally to KGC and
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`KGUSA. KGC and KGUSA also have additional defenses in relation to their capacity as upper
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`level parent companies of SGC, including the defense that neither entity ever owned any
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`property in the Bonita Peak Mining District.
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`Utah disputes the validity of the Mining Defendants’ defenses and contends it could
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`prove SGC’s liability for the alleged environmental harm in question and parental liability
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`against KGC and KGUSA. The proposed Consent Decree between Utah and the Mining
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`Defendants reflects an acknowledgement of the risks associated with litigating the parties’
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`respective claims and defenses, while securing $1,000,000 (one million dollars) to compensate
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`Utah for its CERCLA claims. (See MDL ECF 1141-1 at p. 4, ¶ 8 and p. 7, ¶ 5). Utah and the
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`Mining Defendants entered into the proposed Consent Decree with the assistance of experienced
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`counsel, and in doing so, made no clear errors of judgment or serious mathematical errors. The
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`proposed Consent Decree reflects a compromise of the parties’ respective positions. In light of
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`these considerations, the proposed Consent Decree is reasonable.
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`3.
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`The proposed Consent Decree is consistent with CERCLA’s goals.
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`The primary goals of CERCLA are to promptly and effectively respond to environmental
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`problems resulting from hazardous waste disposal and make those responsible for the problems
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`bear the associated response costs. See Cannons, 899 F.2d at 90-91; Rohm & Haas, 721 F. Supp.
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`10
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`at 680; U.S. v. ASARCO, Inc., 814 F. Supp. 951, 955 (D. Colo. 1993); SC Holdings, Inc. v.
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`A.A.A. Realty Co., 935 F. Supp. 1354, 1361 (D.N.J. 1996). To accomplish these goals, CERCLA
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`encourages the use of settlements to reduce litigation costs. See Cannons, 899 F.2d at 87 (“The
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`reality is that, all too often, litigation is a cost-ineffective alternative which can squander
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`valuable resources, public as well as private.”). The benefits of settlement and reduced litigation
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`costs outweigh the downside of a less than full recovery, as the earlier a settlement can be
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`reached, the earlier the environmental clean-up can be funded and commenced.
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`In accordance with CERCLA’s goals, the proposed Consent Decree between Utah and
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`the Mining Defendants promotes a prompt and effective response to the alleged environmental
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`harm in question. By settling, the parties have conserved their resources, reduced litigation
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`costs, and can redirect their efforts accordingly. (See MDL ECF 1141-1 at p. 4, § G). The
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`proposed Consent Decree is therefore consistent with CERCLA’s goals.
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`CONCLUSION
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`The proposed Consent Decree between Utah and the Mining Defendants is fair,
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`reasonable, and consistent with CERCLA’s goals. Utah and the Mining Defendants respectfully
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`request that the Court approve and enter the proposed Consent Decree in accordance with 42
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`U.S.C. § 9622(d)(1)(A). A proposed order is attached.
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`//
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`//
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`//
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`//
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`//
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`//
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`Case 1:18-cv-00319-WJ Document 606 Filed 05/07/21 Page 12 of 13
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`Dated May 7, 2021.
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`Respectfully submitted,
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`CROWLEY FLECK PLLP
`
`By /s/ Neil G. Westesen
`
`Neil G. Westesen (admitted pro hac vice)
`1915 South 19th Street
`PO Box 10969
`Bozeman, MT 59719-0969
`Telephone: (406) 556-1430
`Facsimile: (406) 556-1433
`nwestesen@crowleyfleck.com
`
`Jeffery J. Oven (admitted pro hac vice)
`Pamela C. Garman (admitted pro hac vice)
`490 North 31st Street, Suite 500
`PO Box 2529
`Billings, MT 59103-2529
`Telephone: (406) 252-3441
`Facsimile: (406) 252-5292
`joven@crowleyfleck.com
`pgarman@crowleyfleck.com
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`Attorneys for Defendant Sunnyside Gold
`Corporation
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`
`HOLLAND & HART LLP
`
`By /s/ Bradford Berge
`
`Bradford C. Berge
`Jules Elese Angelley
`P.O. Box 2208
`110 N. Guadalupe, Ste. 1
`Santa Fe, NM 87504-2208
`Telephone: (505) 988-4421
`Facsimile: (505) 983-6043
`bberge@hollandandhart.com
`jeangelley@hollandandhart.com
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`Attorneys for Defendants Kinross Gold U.S.A., Inc.
`and Kinross Gold Corporation
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`KING & SPALDING LLP
`
`By /s/ Peter Hsiao
`
`Peter Hsiao
`633 West Fifth Street, Suite 1600
`Los Angeles, CA 90071
`Telephone: (213) 443-4379
`Facsimile: (213) 443-4310
`phsiao@kslaw.com
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`Attorneys for Plaintiff the State of Utah
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`CERTIFICATE OF SERVICE
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`I hereby certify that on May 7, 2021, the foregoing was filed via the U.S. District Court
`of New Mexico’s CM/ECF electronic filing system and a copy was served upon all counsel of
`record via the CM/ECF.
`
`/s/ Neil G. Westesen
`Neil G. Westesen
`
`13
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