`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 1 of 24
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`
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`This Settlement Agreement ("Agreement") dated March 4, 2021, is made by and
`
`between Sunnyside Gold Corporation (“SGC”), Kinross Gold Corporation (“KGC”), and Kinross
`
`Gold U.S.A., Inc. (“KGUSA”), on the one hand (collectively, the “Mining Defendants”), and the
`
`State of Utah (including each of its departments, agencies, and instrumentalities, including State
`
`of Utah Natural Resource Trustees) (“Utah”), on the other hand (each a “Party,” and collectively,
`
`the “Parties”). Unless otherwise indicated, capitalized terms used in this Agreement are defined
`
`in Appendix A, attached and incorporated herein.
`
`RECITALS
`
`WHEREAS, Utah has made claims against the Mining Defendants in the following
`
`litigation: State of Utah v. Environmental Restoration, LLC, et al. (2:17-cv-00866—TS (D. Utah),
`
`and In re Gold King Aline Release in San Juan County, Colorado on August 5, 2015 (1:18-md-
`
`02824 (D.N.M.)) (collectively,
`
`the “Litigation” as further defined in Appendix A), which
`
`litigation arose from the release that occurred on August 5, 2015 at the Gold King Mine (“Gold
`
`King Blowout” as further defined in Appendix A), which claims include, but are not limited to,
`
`tort claims and claims under the Comprehensive Environmental Response, Compensation, and
`
`Liability Act, 42 U.S.C. §§ 9601 et. seq ("CERCLA");
`
`WHEREAS, SGC has made counterclaims against Utah in the Litigation, including
`
`claims under CERCLA;
`
`WHEREAS, the Parties desire to enter into this Agreement to have a full and final
`
`resolution of the “Matters” as defined below in Section 2, to avoid the complication and expense
`
`of litigation of such claims between the Parties, and to avoid exposure to liability at trial;
`
`WHEREAS, the Parties agree that this Agreement is fair, reasonable, and in the public
`
`interest;
`
`WHEREAS, the Parties do not admit any liability in the Litigation; and
`
`WHEREAS, the Parties enter into this Agreement as a fill and final settlement of the
`
`Matters.
`
`THEREFORE, the Parties hereby agree as follows.
`
`1.
`
`Payment. Payment of Five Million Five Hundred Thousand Dollars
`
`($5,500,000.00) USD by SGC on behalf of the Mining Defendants shall be made to Utah, as
`
`directed by Utah, within 30 days of execution of this Agreement and issuance of a final order by
`1
`
`
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`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 2 of 24
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`the United States District Court for the District of New Mexico (the “Court” as further defined in
`
`Appendix A) with respect to the joint motion for entry of the Consent Decree described in Section
`
`6.A (the “Payment”). In the event SGC does not make the Payment, it shall be made by KGC or
`
`KGUSA.
`
`2.
`
`Release bv Utah. In consideration of the promises and covenants contained herein,
`
`the Payment and other good and valuable consideration, the sufficiency of which Utah hereby
`
`acknowledges, Utah, on its behalf, as parens patriae, and on behalf of its past, present, and future
`
`affiliates, agents, officers, directors, employees, members, representatives, consultants, attorneys,
`
`trustees, and related entities, as well as their heirs, predecessors, successors, and assigns (hereafter
`
`collectively referred to as the “Utah Parties”) hereby release the Mining Defendants Parties (as
`
`defined in Appendix A) from all civil claims that were, could now be, or could hereafter be asserted
`
`with regard to the events or circumstances described or alleged in the First Amended Complaint
`
`filed by Utah against the Mining Defendants in the Litigation, including without limitation (a) all
`
`ofUtah’s tort claims and CERCLA claims against the Mining Defendants in Utah’s First Amended
`
`Complaint, and (b) SGC’s counterclaims against Utah (collectively the “Matters”). Nothing in
`
`this release shall prohibit or release any claims for breach of this Agreement.
`
`3.
`
`
`Release bv Minino Defendants Parties.
`
`In consideration of the promises and
`
`covenants contained herein, and other good and valuable consideration, the sufficiency of which
`
`Mining Defendants hereby acknowledge, the Mining Defendants Parties hereby release the Utah
`
`Parties from all civil claims that were, could now be, or could hereafter be asserted with regard to
`
`the Matters. Nothing in this release shall prohibit or release any claims for breach of this
`
`Agreement.
`
`4.
`
`A.
`
`Utah Covenant Not to Sue.
`
`Utah, on behalf of itself and the Utah Parties, agrees and covenants that it will not
`
`commence any Action against the Mining Defendants Parties for the Matters.
`
`B.
`
`Any Action brought by Utah to enforce (but not to rescind or reform) the terms of
`
`this Agreement is excepted from the covenant not to sue included in Section 4.A.
`
`5.
`
`A.
`
`Consent Decree.
`
`The Parties shall enter into a consent decree substantially in the form set forth in
`
`Appendix B (“Consent Decree”). Such Consent Decree shall effectuate the provisions in Section
`
`2
`
`
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`SB. Such Consent Decree shall be submitted for approval and entry to the Court, and the Parties
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`shall jointly move the Court for entry of such Consent Decree and cooperate in supporting its entry
`
`and make additional filings as reasonably requested by either Party or required by the Court in
`
`support thereof. If Court approval of the Consent Decree is not obtained, the Parties agree this
`
`Agreement shall be deemed to be an “Administrative Settlement Agreement” pursuant
`
`to
`
`applicable law governing such agreements under CERCLA.
`
`B.
`
`Such Consent Decree shall reflect the intention of the Parties with respect to the
`
`following provisions:
`
`1. The covenant not to sue in Paragraph 4 herein.
`
`2. With regard to any claims for costs, damages, or other claims of Utah against the
`
`Mining Defendants for the Matters under CERCLA, the Parties agree that the
`
`Mining Defendants Parties have resolved their liability and are entitled to
`
`contribution protection consistent with Section 113(f) of CERCLA, 42 U.S.C. §
`
`9613(1), the Uniform Comparative Fault Act, and any other applicable provision of
`
`federal or state law, Whether by statute or common law, extinguishing the Mining
`
`Defendants Parties’ liability to persons not party to this Agreement for “matters
`
`addressed” in this Agreement (as described in this paragraph). Any rights the
`
`Mining Defendants may have to obtain contribution or otherwise recover costs or
`
`damages from persons not party to this Agreement are preserved. For purposes of
`
`this paragraph, the “matters addressed” in this Agreement are any liability of
`
`Mining Defendants Parties for the Matters under CERCLA. The contribution
`
`protection set forth in this paragraph is intended to provide the broadest
`
`protection afforded by CERCLA or and any other applicable provision of federal
`
`or state law, or otherwise for “matters addressed” in this Agreement.
`
`3.
`
`If Court approval of the Consent Decree is not obtained, then pursuant to Section
`
`5A above, the Parties agree that Sections 53.1 and 5.B.2 will become effective
`
`and incorporated in the “Administrative Settlement Agreement” provided for in
`
`Section SA.
`
`6.
`
`N0 Admissions.
`
`The Parties explicitly acknowledge that this Agreement
`
`represents a settlement of disputed claims, and the Parties understand and agree that nothing
`
`contained in this Agreement is to be considered as an admission of any alleged fact, liability or
`3
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`
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`fault, and that all such allegations, liability and fault are expressly denied. Accordingly, neither
`
`this Agreement nor any of its terms shall be offered or received as evidence in any proceeding
`
`in any forum as an admission of liability or wrongdoing on the part of any Mining Defendant
`
`or Utah.
`
`7.
`
`
`Acknowledaemcnts. Each of the Parties declares that it has read and understands
`
`the terms of this Agreement, that it has been represented by counsel in the negotiation, execution,
`
`and delivery of this Agreement, and that it executes this Agreement voluntarily after consultation
`
`with counsel. Each of the Parties participated in the drafting of this Agreement and in the event
`
`of any ambiguity, the Parties agree that it shall not be construed against any of them because of
`
`their status as a drafter.
`
`8.
`
`N0 Reliance. Except as expressly stated in this Agreement or in the Term Sheet
`
`between the Parties, (A) no Party (or any owner, member, manager, officer, director, partner,
`
`associate, employee, representative, attorney, or agent of any Party) relies upon any statement or
`
`representation to any other Party regarding any facts in entering into this Agreement; (B) no Party
`
`relies upon any statement, representation, or promise of any other Party (or any owner, member,
`
`manager, officer, director, partner, associate, employee, representative, attorney, or agent of any
`
`Party in executing this Agreement, and (C) the Parties expressly assume the risk that the facts or
`
`law may be, or may become, different from the facts or law as presently believed or understood
`
`by the Parties.
`
`9.
`
`Dismissal of Claims. The Parties shall file dismissals with prejudice of all claims
`
`in the Litigation against one another on or before five business days of the Payment.
`
`10.
`
`Feesr‘Costs. Each Party shall bear its own costs, expenses, experts’ fees, any
`
`mediator’s fees, and attorneys’ fees.
`
`11.
`
`Remaining Litigation. This Agreement does not impact, interfere with, or
`
`limit any Party’s claims or defenses against non-Parties in the remaining Litigation.
`
`Notwithstanding any other provision of this Agreement, each Party reserves all rights with
`
`respect to such remaining Litigation.
`
`12.
`
`Representations and Warranties. Each Party represents and warrants that
`
`this Agreement covers all claims and damages in the Matters. Each Party further represents
`
`and warrants that it is the owner of all claims being released, and that such claims have not
`
`
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`been assigned or transferred, and that it is not aware of any other person or entity that has any
`
`interest in the claims that have been or could have been asserted in the Litigation and that are
`
`referred to in this Agreement.
`
`13.
`
`Authoritv to Execute. Each of the Parties represents and warrants that it has full
`
`power and authority to execute, deliver, and perform this Agreement and that it has taken all
`
`necessary steps for the execution and delivery of this Agreement. Each signatory to this
`
`Agreement represents and warrants that he/she has full power and authority to execute on behalf
`
`of the Party for whom he/she has executed this Agreement, and to bind legally such Party.
`
`14.
`
`Further Assurances. The Parties agree to reasonably cooperate with each other in
`
`the implementation of this Agreement, and to execute and deliver any further legal instruments
`
`and perform any acts which are or may become reasonably necessary, appropriate or desirable to
`
`effectuate this Agreement,
`
`including but not limited to entering into and obtaining judicial
`
`approval of the Consent Decree to provide the Mining Defendants with contribution protection
`
`under CERCLA as provided in Section 5.
`
`15.
`
`Press Releases. Utah agrees that 24 hours prior to issuing its official press release
`
`on behalf of Utah regarding this Agreement, Utah will provide the content of the press release to
`
`Brad Berge (bberge@hollandhart.com) and Neil Westesen (nwestesen@crowleyfleCk.com). The
`
`Mining Defendants shall have the right to comment on the press release regarding this Agreement,
`
`and Utah will consider those comments in good faith. The Mining Defendants agree that 24 hours
`
`prior to issuing any official press release(s) on behalf of the Mining Defendants regarding this
`
`settlement, the Mining Defendants will provide the content of the press release(s) to Peter Hsiao
`
`(phsiao@kslaw.com). Utah shall have the right to comment on the press release(s) and the Mining
`
`Defendants agree to consider those comments in good faith. The Parties agree that they will not
`
`disparage each other in their press releases, but that factual statements will not constitute
`
`disparagement. Pending any such press release by any Party, the existence and terms of this
`
`Agreement shall remain confidential to the full extent permitted by law, except to the extent the
`
`Parties notify the Court, including Chief Judge Johnson and/or Judge Torgerson, and to the extent
`
`Utah communicates with the Sovereign Plaintiffs.
`
`16.
`
`Applicable Law and Dispute Resolution.
`
`A.
`
`This Agreement shall be governed by and construed in accordance with the laws of
`
`5
`
`
`
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`the State of New Mexico, without giving effect to any choice or conflict of law provisions or rule
`
`that would cause the application of laws of any other than those of the State of New Mexico.
`
`B.
`
`Any and all controversies, disputes, or claims between the Parties arising under or
`
`related to this Agreement, and any and all claimed breaches thereof, shall be resolved solely by
`
`proceedings before the Court, unless the Parties mutually agree to an alternative dispute resolution
`
`proceeding. The Parties irrevocably and unconditionally waive any objection to jurisdiction and
`
`venue of any proceeding before the Court and irrevocably waive and agree not to plead or claim
`
`that any such proceeding brought in the Court has been brought in an inconvenient forum.
`
`17.
`
`successors and Transferees. This Agreement shall be binding upon and inure to
`
`the benefit of each Party” s current and former parent companies, subsidiaries, affiliates, successors,
`
`heirs, and assigns.
`
`18.
`
`Damages for Breach.
`
`In the event of a breach of this Agreement, in addition to
`
`any other damage, the prevailing party is entitled to recover its reasonable costs and attorneys’
`
`fees to the extent authorized by law.
`
`19.
`
`Severabilitv. If any provision of this Agreement is held to be illegal, invalid, or
`
`unenforceable, such provision(s) shall be fully severable and the invalidity,
`
`illegality, or
`
`unenforceability shall not affect any other provision of this Agreement.
`
`20.
`
`Entire Agreement. This Agreement is a fully integrated agreement which sets
`
`forth the entire agreement and understanding of the Parties concerning the subject matter of this
`
`Agreement. Accordingly, this Agreement supersedes and controls over the Term Sheet entered
`
`into by the Parties on January 21, 2021. This Agreement may not be waived, rescinded, canceled,
`
`terminated, supplemented, amended, or modified in any manner without the prior written consent
`
`of all Parties.
`
`21.
`
`Counterparts. This Agreement may be executed in any number of counterparts,
`
`and by different Parties upon different counterparts with the same effect as ifthe signatures thereto
`
`were upon the same instrument. Each counterpart shall be deemed an original, but together all
`
`counterparts shall constitute one and the same instrument. The date of execution ofthis Agreement
`
`shall be the last date any individual counterpart was signed by either of the Parties. Facsimile and
`
`Email .pdf copies shall be as valid as originals.
`
`[SIGNATURE PAGES FOLLOW]
`
`6
`
`
`
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`IN WITNESS WHEREOF, the Parties enter into this Agreement.
`
`STATE OF UTAH ex rel. Spencer E. Austin, Chief Criminal Deputy, OFFICE OF
`THE ATTORNEY GENERAL for the
`ate of Utah
`
`
`
`Approved as to form:
`[2& 745,20
`
`Peter Hsiao
`
`King & Spalding LLP
`Counsel for Utah
`
`SUNNYSIDE GOLD CORPORATION
`
`Dated:
`
`3-8—21
`
`
`
`Crowley Fleck, PLLP
`Counsel for SGC
`
`KINROSS GOLD CORPORATION
`
`Dat
`
`: March 8, 2021
`
`
`
`Conn 61 for KGC and KGUSA
`
`
`
`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 8 of 24
`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 8 of 24
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`IGNROSS GOLD U.S.A., INC.
`
`By: §é~ DE 5
`
`Dated:
`
`3'8'21
`
`Approved as 0 form:
`
`
`
`
`Holland & Hart LLP
`Counsel for KGC and KGUSA
`
`
`
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`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 9 of 24
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`APPENDIX A
`
`TO SETTLEMENT AGREEMENT BETWEEN UTAH
`
`AND MINING DEFENDANTS
`
`DEFINITIONS
`
`1.1
`
`
`“Action” means any claim, demand, cause of action,
`
`lawsuit, arbitration,
`
`administrative or regulatory proceeding, or other adversarial adjudication of any kind whatsoever,
`
`in law or in equity.
`
`1.2
`
`
`“Court” means the United States District Court for the District of New Mexico
`
`presiding over In re Gold King Mine Release in San Juan County, Colorado on August 5, 2015
`
`(1:18-md-02824 (D.N.M.)).
`
`1.3
`
`“EPA” means the U.S. Environmental Protection Agency and its successor
`
`departments, agencies, or instrumentalities.
`
`1.4
`
`“First Amended Complaint" means the First Amended Complaint filed by Utah
`
`on January 4, 2018 in the Litigation.
`
`1.5
`
`“Gold King Blowout” means the incident on August 5, 2015 at the Gold King
`
`Mine, which is located within the Site, when an estimated three million gallons of water exited the
`
`Gold King Mine Level 7 adit and ultimately flowed into the Animas River and downstream
`
`waterways, which is referenced in the First Amended Complaint.
`
`1.6
`
`“Litigation” means the litigation State of Utah v. Environmental Restoration, LLC,
`
`et al. (2: 17-cv-00866-TS (D. Utah), which has been centralized in the United States District Court
`
`for the District of New Mexico in In re Gold King Mine Release in San Juan County, Colorado on
`
`August 5, 2015 (1:18-md-02824 (D.N.M.)) with the following litigation: State ofNew Mexico v.
`
`USEPA, et al. (1:16-cv-00465 (D.N.M.)) consolidated with the litigation by the Navajo Nation
`
`(1:16-cv-00931 (D.N.M.)), and litigation by the Allen Plaintiffs’ (1 :18-cv-00744 (D.N.M.)),
`
`pursuant to an April 4, 2018 Transfer Order issued by the United States Panel on Multi-District
`
`Litigation as MDL Case No. 2824.
`
`1.7
`
`“Mining, Defendants Parties” means (i) the Mining Defendants; (ii) the Mining
`
`Defendants’ successors and assigns but only to the extent that the liability of such person or entity
`
`is based on the liability of Mining Defendants; (iii) Mining Defendants' former or current officers,
`
`directors and employees, but only to the extent that the liability of any such person is based on acts
`
`and/or omissions which occurred in the scope of the person's employment or capacity as an officer,
`
`director, and employee; (iv) affiliates of Mining Defendants (“Mining Defendants’ Affiliates”);
`A-l
`
`
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`(v) Mining Defendants’ Affiliates’ successors and assigns, but only to the extent that the liability
`
`of such person or entity is based on the liability of Mining Defendants’ Affiliates; (vi) Mining
`
`Defendants' Affiliates’ former or current officers, directors and employees, but only to the extent
`
`that the liability of such person is based on acts and/or omissions which occurred in the scope of
`
`the person's employment or capacity as an officer, director, and employee; and (Vii) for purposes
`
`of the release provided by Utah in Section 2 of the Agreement, and Utah’s covenant not to sue in
`
`Section 4 of the Agreement, includes all those set out in subparts (i) through (vi) above and also
`
`Mining Defendants’ past, present, and future insurers,
`
`reinsurers, agents, representatives,
`
`consultants, attorneys, trustees, and related entities, as well as their heirs, predecessors, successors,
`
`and assigns.
`
`1.8
`
`“Sovereign Plaintiffs" means the State of Utah, State of New Mexico and the
`
`Navajo Nation, plaintiffs in In re Gold King Mine Release in San Juan County, Colorado on
`
`August 5, 2015 (1:18-md-02824 (D.N.M.)).
`
`1.9
`
`“&” means the Bonita Peak Mining District Superfund Site in San Juan County,
`
`Colorado, EPA Docket ID No. EPA-HQ-OLEM-2016-0152, as published in the Federal Register
`
`on September 9, 2016, 81 Fed. Reg. 62397.
`
`A—2
`
`
`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
`
`In re: Gold King Mine Release in San Juan
`County, Colorado on August 5, 2015
`
`This Document Relates to:
`
`No. 1:18-cv-00319-WJ
`
`
`No. 1:18-md-02824-WJ
`
`__——_________———————
`
`CONSENT DECREE
`BETWEEN THE STATE OF UTAH AND SUNNYSIDE GOLD CORPORATION,
`KINROSS GOLD CORPORATION AND KINROSS GOLD U.S.A., INC.
`——_____________—-—————
`
`
`
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`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 12 of 24
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`TABLE OF
`
`gums
`
`BACKGROUND ................................................................................................................ 1
`
`JURISDICTION ................................................................................................................. 2
`
`PARTIES BOUND ............................................................................................................. 2
`
`DEFINITIONS .................................................................................................................... 2
`
`STATEMENT OF PURPOSE ............................................................................................ 4
`
`PAYMENT ......................................................................................................................... 5
`
`COVENANTS BY UTAH .................................................................................................. 5
`
`II.
`
`III.
`
`IV.
`
`VI.
`
`VII.
`
`VIII.
`
`COVENANTS BY MINING DEFENDANTS ................................................................... 5
`
`IX.
`
`RESERVATIONS OF RIGHTS BY PARTIES ................................................................. 5
`
`EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION .................................... 6
`
`XI.
`
`NOTICES ............................................................................................................................ 8
`
`XII.
`
`RETENTION OF JURISDICTION .................................................................................... 9
`
`XIII.
`
`XIV.
`
`LODGING AND OPPORTUNITY FOR PUBLIC COMMENT 10
`
`XV.
`
`SIGNATORIES ................................................................................................................ 10
`
`XVI.
`
`
`
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`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 13 of 24
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`This Consent Decree is made and entered into by and between the State of Utah
`
`(including each of its departments, agencies, and instrumentalities, including State of Utah
`
`Natural Resource Trustees) (“Utah”), on the one hand, and Sunnyside Gold Corporation
`
`(“SGC”), Kinross Gold Corporation (“KGC”), and Kinross Gold USA, Inc. (“KGUSA”),
`
`on the other hand (collectively, the “Mining Defendants)(individually referred to as a “Party”
`
`and together as the “Parties”).
`
`1.
`
`BACKGROUND
`
`A.
`
`Utah has made claims under the Comprehensive Environmental Response,
`
`Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq. ("CERCLA") arising from the
`
`alleged release or threatened release of hazardous substances as alleged in Utah’s First Amended
`
`Complaint (as defined below) against the Mining Defendants in the following litigation: State of
`
`Utah v. Environmental Restoration, LLC, et al. (2:17-cv-00866-TS (D. Utah)). This case was
`
`transferred for Multi-District Litigation proceedings in In re Gold King Mine Release in San
`
`Juan County, Colorado on August 5, 2015 (1:18—md-02824 (D.N.M.)) in the United States
`
`District Court for the District of New Mexico by an April 4, 2018 Transfer Order issued by the
`
`United States Panel on Multi-District Litigation as MDL Case No. 2824 (“Litigation”).
`
`B.
`
`The above-described CERCLA claims by Utah are under Sections 107(a) and
`
`113(g)(2) ofCERCLA, 42 U.S.C. §§ 9607(a), 96l3(g)(2).
`
`C.
`
`SGC has made counterclaims under CERCLA for cost recovery and contribution
`
`against Utah in the Litigation.
`
`D.
`
`The Parties have entered into a Settlement Agreement dated March 4, 2021
`
`regarding the Litigation (“Settlement Agreement”), and such Settlement Agreement provides that
`
`the Parties will enter into a consent decree with respect to each Parties’ claims under CERCLA.
`
`The Settlement Agreement also provides that the Court will retain jurisdiction to resolve any
`
`
`
`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 14 of 24
`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 14 of 24
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`disputes between the Parties, subject to the terms therein.
`
`E.
`
`This Consent Decree is the consent decree provided for in the Settlement
`
`Agreement.
`
`F.
`
`The Parties do not admit any liability to the other in the Litigation. The form of
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`this Consent Decree is unique to the specific circumstances involved, and is not precedent for
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`any other consent decree.
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`G.
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`The Parties agree, and this Court by entering this Consent Decree finds, that this
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`Consent Decree has been negotiated by the Parties in good faith, that this Consent Decree in
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`connection with settlement of this matter will avoid prolonged and complicated litigation
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`between the Parties, and that this Consent Decree is fair, reasonable, and in the public interest.
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`NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
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`I.
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`JURISDICTION
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`1.
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`This Court has jurisdiction over the subject matter of this action pursuant to 28
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`U.S.C. §§ 1331 and 1345, and 42 U.S.C. §§ 9607 and 9613(b). Solely for the purposes ofthis
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`Consent Decree, Mining Defendants waive all objections and defenses that any of them may
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`have to subject matter jurisdiction of, personal jurisdiction of, or venue in this Court.
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`11.
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`PARTIES BOUND
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`2.
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`This Consent Decree is binding upon the Parties and their respective successors
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`and assigns. Any change in ownership or corporate or other legal status, including, but not
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`limited to, any transfer of assets or real or personal property, will in no way alter the status or
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`responsibilities of the Parties under this Consent Decree.
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`III.
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`DEFINITIONS
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`3.
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`Unless otherwise expressly provided in this Consent Decree, terms used in this
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`Consent Decree that are defined in CERCLA or in regulations promulgated under CERCLA will
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`
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`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 15 of 24
`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 15 of 24
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`have the meaning assigned to them in CERCLA or in such regulations. All other words will be
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`assigned their normal meaning. Whenever terms listed below are used in this Consent Decree,
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`the following definitions will apply:
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`A.
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`B.
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`“Consent Decree” means this Consent Decree;
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`“Court” means the United States District Court for the District of New
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`Mexico presiding over In re Gold King Mine Release in San Juan County, Colorado on
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`August 5, 2015 (1 :18-md—02824 (D.N.M.));
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`C.
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`“Day” means a calendar day. In computing any period of time under this
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`Consent Decree, where the last day would fall on a Saturday, Sunday, or federal or State
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`holiday, the period will run until the close of business of the next working day;
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`D.
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`“Effective Date” means 30 Days from the date that this Court enters the
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`Consent Decree, unless an appeal of the entry ofjudgment is filed during the 30—Day
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`period; if an appeal is taken, the Effective Date means the date on which the Court’s
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`judgment is affirrned;
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`E.
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`“EPA” means the US. Environmental Protection Agency and its successor
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`departments, agencies, or instrumentalities;
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`F.
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`“First Amended Complaint” means the First Amended Complaint filed by
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`Utah on January 4, 2018 in the Litigation;
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`G.
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`“Mining Defendants’ Related Parties” means: (i) Mining Defendants’
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`successors and assigns but only to the extent that the liability of such person or entity is
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`based on the liability of Mining Defendants; (ii) Mining Defendants' former or current
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`officers, directors and employees, but only to the extent that the liability of any such
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`person is based on acts and/or omissions which occurred in the scope of the person's
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`employment or capacity as an officer, director, and employee; (iii) affiliates of Mining
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`
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`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 16 of 24
`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 16 of 24
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`Defendants (“Mining Defendants’ Affiliates”); (iv) Mining Defendants’ Affiliates’
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`successors and assigns, but only to the extent that the liability of such person or entity is
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`based on the liability of Mining Defendants’ Affiliates; and (v) Mining Defendants'
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`Affiliates’ former or current officers, directors and employees, but only to the extent that
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`the liability of such person is based on acts and/or omissions which occurred in the scope
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`of the person's employment or capacity as an officer, director, and employee;
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`H.
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`“Paragraph” means a portion of this Consent Decree identified by an
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`Arabic numeral or an upper or lower case letter;
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`1.
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`“Section” means a portion of this Consent Decree identified by a Roman
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`numeral;
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`J.
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`“Site” means for purposes of this Consent Decree the Bonita Peak Mining
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`District Superfimd Site in San Juan County, Colorado, EPA Docket ID No. EPA-HQ-
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`OLEM-2016-0152, as published in the Federal Register on September 9, 2016, 81 Fed.
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`Reg. 62397.
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`IV.
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`STATEMENT OF PURPOSE
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`4.
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`By entering into this Consent Decree, the mutual objective of the Parties is to
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`effectuate the provisions of the Settlement Agreement with respect to the consent decree
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`referenced therein, and for the Parties to resolve their alleged and respective civil CERCLA
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`liability, and the CERCLA liability of Mining Defendants’ Related Parties, consistent with how
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`such alleged liability is addressed in the Settlement Agreement, as provided in the covenants by
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`Utah in Section VII, and as provided in the covenants by Mining Defendants in Section VIII,
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`subject to the Reservation of Rights by the Parties in Section IX. With respect to such alleged
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`liability, subject to the terms and conditions herein, this Consent Decree is intended to provide
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`finality and the broadest protection afforded by law to the Parties and Mining Defendants’
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`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 17 of 24
`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 17 of 24
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`Related Parties.
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`V.
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`PAYMENT
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`5.
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`Pavment byfli 11mg Defendants. The Mining Defendants’ payment to Utah shall
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`be paid as provided in the Settlement Agreement. The amount for CERCLA claims is One
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`Million Dollars ($1,000,000.00).
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`VI.
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`COVENANTS BY UTAH
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`6.
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`Covenants by Utah. Except as specifically provided in Paragraph 8 (General
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`Reservation of Utah Rights), Utah covenants not to sue or to take administrative action against
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`Mining Defendants or Mining Defendants’ Related Parties for all civil claims under CERCLA
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`that were, could now be, or could hereafter be asserted with regard to the events or circumstances
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`described or alleged in the First Amended Complaint.
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`VII.
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`COVENANTS BY MINING DEFENDANTS
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`7.
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`Covenants bv Mining Defendants. Except as specifically provided in Paragraph
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`10 (General Reservation of Mining Defendants’ Rights), Mining Defendants covenant not to sue
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`and agree not to assert any claims or causes of action against Utah for all claims under CERCLA
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`that were, could now be, or could hereafter be asserted with regard to the events or circumstances
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`described or alleged in the First Amended Complaint, including but not limited to SGC’s
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`counterclaims against Utah in the Litigation.
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`VIII.
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`RESERVATIONS OF RIGHTS BY PARTIES
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`8.
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`General Reservations of Utahis Rights. Utah reserves, and this Consent Decree is
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`Without prejudice to all rights against Mining Defendants and Mining Defendants’ Related
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`Parties with respect to all matters not expressly included within Paragraph 6 (Covenants by
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`Utah). Notwithstanding any other provision of this Consent Decree, Utah reserves, and this
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`Consent Decree is without prejudice to, all rights against Mining Defendants and Mining
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`Case 1:18-cv-00319-WJ Document 606-1 Filed 05/07/21 Page 18 of 24
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`Defendants’ Related Parties, with respect to:
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`a.
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`liability for failure of Minin