Case 1:18-cv-00744-WJ-KK Document 407-1 Filed 01/20/22 Page 1 of 45
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`No. 1:18-md-02824-WJ
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
`__________________________________________
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`IN RE: GOLD KING MINE RELEASE
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`IN SAN JUAN COUNTY, COLORADO
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`ON AUGUST 5, 2015
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`This Document Relates to:
`No. 16-cv-465-WJ/LF
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`No. 16-cv-931-WJ/LF
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`No. 18-cv-319-WJ
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`No. 18-cv-744-WJ
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`__________________________________________)
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`______________________________________________________________________________
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`CONSENT DECREE
`______________________________________________________________________________
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`Case 1:18-cv-00744-WJ-KK Document 407-1 Filed 01/20/22 Page 2 of 45
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`TABLE OF
`CONTENTS
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`BACKGROUND ................................................................................................................ 1 
`I. 
`JURISDICTION ................................................................................................................. 4 
`II. 
`PARTIES BOUND ............................................................................................................. 4 
`III. 
`DEFINITIONS .................................................................................................................... 4 
`IV. 
`STATEMENT OF PURPOSE .......................................................................................... 11 
`V. 
`PAYMENTS ..................................................................................................................... 11 
`VI. 
`FAILURE TO COMPLY WITH CONSENT DECREE .................................................. 13 
`VII. 
`VIII.  COVENANTS BY PLAINTIFFS..................................................................................... 15 
`COVENANTS AND WAIVERS BY SETTLING DEFENDANTS AND SETTLING
`IX. 
`FEDERAL AGENCIES .................................................................................................... 18 
`RESERVATIONS OF RIGHTS BY PARTIES ............................................................... 20 
`X. 
`EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION .................................. 22 
`XI. 
`PROPERTY PROVISIONS.............................................................................................. 24 
`XII. 
`XIII.  RETENTION OF RECORDS........................................................................................... 28 
`XIV.  NOTICES AND SUBMISSIONS..................................................................................... 30 
`XV.  RETENTION OF JURISDICTION .................................................................................. 32 
`XVI. 
`INTEGRATION ............................................................................................................... 33 
`XVII.  LODGING AND OPPORTUNITY FOR PUBLIC COMMENT .................................... 33 
`XVIII. SIGNATORIES/SERVICE............................................................................................... 33 
`XIX.  FINAL JUDGMENT ........................................................................................................ 34 
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`Case 1:18-cv-00744-WJ-KK Document 407-1 Filed 01/20/22 Page 3 of 45
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`I.
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` BACKGROUND
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`A.
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`The United States (as defined below) filed crossclaims (“USA MDL
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`Crossclaims” as defined below) against the Sunnyside Gold Corporation (“SGC” as defined
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`below) and the Kinross Gold Corporation (“KGC” as defined below) alleging claims under
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`Sections 107(a) and 113(g)(2) of the Comprehensive Environmental Response, Compensation,
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`and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9607(a), and 9613(g)(2), and seeking
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`reimbursement of, or contribution towards, response costs incurred or to be incurred for response
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`actions taken or to be taken by the United States in connection with the release or threatened
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`release of hazardous substances at the Bonita Peak Mining District Superfund Site located in San
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`Juan County, Colorado (“Site” as defined below).
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`B.
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`In accordance with section 121(f)(1)(F) of CERCLA, 42 U.S.C. § 9621(f)(1)(F),
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`and section 300.520(a) of the National Contingency Plan, 40 C.F.R. Part 300.520(a), the United
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`States notified the State of Colorado (“State” as defined below) on behalf of the United States
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`Environmental Protection Agency (“EPA” as defined below) of negotiations with SGC and KGC
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`as potentially responsible parties, and provided the State with an opportunity to participate in
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`such negotiations and be a party to this Consent Decree.
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`C.
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`The State submits to the jurisdiction of this Court solely for the purposes of this
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`Consent Decree. By this Consent Decree, the State intends to resolve potential claims against
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`SGC and KGC for reimbursement of response costs incurred or to be incurred for response
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`actions taken or to be taken by the State in connection with the release or threatened release of
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`hazardous substances at the Site, pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a).
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`D.
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`SGC and KGC (the “Settling Defendants” as defined below) do not admit any
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`liability to the United States arising out of the transactions or occurrences alleged in the USA
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`MDL Crossclaims or to the State regarding potential claims stated in the preceding paragraph.
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`Settling Federal Agencies (as defined below) do not admit any liability arising out of the
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`transactions or occurrences alleged in any counterclaim or crossclaim asserted by Settling
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`Defendants.
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`E.
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`The EPA and SGC entered into an Administrative Settlement Agreement and
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`Order on Consent for Remedial Investigation (“AOC” as defined below) filed May 11, 2017,
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`with respect to the Mayflower Impoundments Area (as defined below), which is located within
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`the Site.
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`F.
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`On March 15, 2018, EPA issued a Unilateral Administrative Order for Remedial
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`Investigation (“UAO” as defined below) to SGC with respect to Operable Unit 3 within the Site.
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`On April 16, 2018, EPA issued a First Modification to the UAO. On June 7, 2019, EPA
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`modified the Statement of Work, Work Plan, and Field Sampling Plan associated with the initial
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`UAO. SGC ultimately declined to perform the work ordered in the modified UAO, advising
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`EPA of its position in SGC’s Record of Position Memorandum (July 9, 2019).
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`G.
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`On September 3, 2020, EPA issued an Administrative Order Directing
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`Compliance with Request for Access (“AO” as defined below) to SGC with respect to EPA’s
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`and the State’s access to the Mayflower Impoundments Area (as defined below).
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`H.
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`On May 8, 1996, the District Court for the City and County of Denver, State of
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`Colorado, approved and entered a Consent Decree between SGC and CWQCD (as defined
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`below) in Sunnyside Gold Corporation v. Colorado Water Quality Control Division, Colorado
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`Department of Public Health and the Environment, No. 94 CV 5459, (“CWQCD Consent
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`Decree” as defined below), which resolved litigation related to the State’s Water Quality Control
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`Act, C.R.S. § 25-8-101 et seq. Pursuant to the terms of the CWQCD Consent Decree, SGC
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`performed environmental reclamation actions on both SGC-owned and third-party property
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`within the Site by July 3, 2003, the date the CWQCD filed its Notice of Termination of Court’s
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`Jurisdiction.
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`I.
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`The United States, SGC, KGC, and Kinross Gold U.S.A., Inc. (“KGUSA” as
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`defined below) are defendants in certain litigation that has been centralized through the multi-
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`district litigation process in the United States District Court for the District of New Mexico
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`(“MDL Litigation” as defined below). The United States, SGC, KGC, and KGUSA each deny
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`that jurisdiction exists over them in the MDL Litigation. The United States has filed the USA
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`MDL Crossclaims against SGC and KGC in the MDL Litigation, and SGC has filed
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`counterclaims against the United States in the MDL Litigation (“SGC MDL Counterclaims” as
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`defined below). The United States, SGC, KGC, and KGUSA have all denied liability in the
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`MDL Litigation, including with respect to the USA MDL Crossclaims and SGC MDL
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`Counterclaims. The form of this Consent Decree is unique to the specific circumstances
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`involved, including the MDL Litigation, the USA MDL Crossclaims, the SGC MDL
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`Counterclaims, and the CWQCD Consent Decree, and is not precedent for any other consent
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`decree.
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`J.
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`SGC intends to actively identify and work with third party prospective
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`purchaser(s) to Transfer the SGC Property (“Transfer” and “SGC Property” as defined below).
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`EPA and the State intend to support any Transfer by addressing a prospective purchaser’s
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`CERCLA liability concerns through the use of enforcement tools, as appropriate. EPA and the
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`State are currently implementing response actions at the SGC Property. EPA and the State may
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`perform additional response actions at the SGC Property in the future. SGC will not interfere
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`with or impede EPA’s or the State’s performance of response actions at the Site, nor do the
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`Parties expect SGC to perform any response actions itself. KGC asserts that it does not have any
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`property interest in the SGC Property or elsewhere in the Site.
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`K.
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`The United States, the State, and Settling Defendants agree, and this Court by
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`entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in
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`good faith, that settlement of this matter will avoid prolonged and complicated litigation between
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`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
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`DECREED:
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`II.
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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, 1367, and 1345, and 42 U.S.C. §§ 9606, 9607, and 9613(b). Solely for the
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`purposes of this Consent Decree, Settling Defendants waive all objections and defenses that any
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`of them may have to subject matter or personal jurisdiction of this Court or to venue in this District.
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`Settling Defendants will not challenge entry or the terms of this Consent Decree or this Court’s
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`jurisdiction to enter and enforce this Consent Decree.
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`III.
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` PARTIES BOUND
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`2.
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`This Consent Decree is binding upon the United States and the State, and upon
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`Settling Defendants and their respective successors and assigns. Except as provided in
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`Paragraph 38, 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 Settling Defendants under this Consent Decree.
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`IV.
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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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`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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`“Affiliate” will mean any entity that, directly or indirectly through one or more
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`intermediaries, controls, is controlled by, or is under common control with, the subject entity
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`or entities;
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`“AO” will mean the Administrative Order Directing Compliance with Request for
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`Access issued by EPA to SGC on September 3, 2020, including all appendices thereto;
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`“AOC” will mean the Administrative Settlement Agreement and Order on Consent for
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`Remedial Investigation between the EPA and SGC, filed May 11, 2017, with respect to the
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`Mayflower Impoundments Area, and all subsequent amendments or modifications thereto;
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`“BLM” will mean the U.S. Department of the Interior’s Bureau of Land Management
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`and any successor departments, agencies, or instrumentalities;
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`“CERCLA” will mean the Comprehensive Environmental Response, Compensation,
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`and Liability Act, 42 U.S.C. §§ 9601-9675;
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`“Consent Decree” will mean this Consent Decree;
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`“Continuation of Existing Migration” will mean, with respect to a Settling Defendant or a
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`Settling Defendant Affiliate, the movement or release of contamination in connection with the
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`Site that is not caused by the future actions of such Settling Defendant or a Settling Defendant
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`Affiliate, and with respect to a Settling Federal Agency, the movement or release of
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`contamination in connection with the Site that is not caused by the future actions of such Settling
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`Federal Agency, and in each case occurring after Settling Defendants’ signature of the Consent
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`Decree;
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`“CWA” will mean the Federal Water Pollution Control Act, also known as the Clean
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`Water Act, 33 U.S.C. §§ 1251-1387, as amended by the Oil Pollution Act of 1990;
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`“CWQCD” will mean the Water Quality Control Division of the Colorado Department of
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`Public Health and the Environment;
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`“CWQCD Consent Decree” will mean the Consent Decree approved and entered on
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`May 8, 1996, by the District Court for the City and County of Denver, State of Colorado between
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`SGC and the CWQCD in Sunnyside Gold Corporation v. Colorado Water Quality Control
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`Division, Colorado Department of Public Health and the Environment, No. 94 CV 5459, and its
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`four amendments approved and entered April 14, 1997, January 4, 1999, October 13, 2000,
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`and December 6, 2002, including all appendices thereto;
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`“Day” will mean a calendar day. In computing any period of time under this Consent
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`Decree, where the last day would fall on a Saturday, Sunday, or federal or State holiday, the
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`period will run until the close of business of the next working day;
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`“DOI” will mean the U.S. Department of the Interior and any successor departments,
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`agencies, or instrumentalities;
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`“DOJ” will mean the U.S. Department of Justice and any successor departments,
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`agencies, or instrumentalities;
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` “Echo Bay Exploration Inc.” will mean Echo Bay Exploration, Inc., a Delaware
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`corporation and an Affiliate of SGC;
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`“Echo Bay Inc.” will mean Echo Bay Inc., a Delaware corporation and the direct
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`corporate owner of SGC;
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`“Echo Bay Management Corporation” will mean Echo Bay Management Corporation, a
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`Delaware corporation and an Affiliate of SGC;
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`“Effective Date” will mean 60 Days from the date that this District Court enters the
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`Consent Decree, unless an appeal of the entry of judgment is filed during the 60-day period; if an
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`appeal is taken, the Effective Date will mean the date on which the District Court’s judgment is
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`affirmed;
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`“EPA” will mean the U.S. Environmental Protection Agency and its successor
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`departments, agencies, or instrumentalities;
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`“EPA Hazardous Substance Superfund” will mean the Hazardous Substance Superfund
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`established by the Internal Revenue Code, 26 U.S.C. § 9507;
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`“Federal Natural Resource Trustees” will mean, among others, DOI and the U.S. Forest
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`Service;
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`“Interest” will mean the London Interbank Offered Rate on the Effective Date plus
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`4%;
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`“KGC” will mean Kinross Gold Corporation, an Ontario, Canada corporation,
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`including its capacity as the surviving entity from its 2006 amalgamation with Echo Bay
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`Mines, Ltd.;
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`“KGUSA” will mean Kinross Gold U.S.A., Inc., a Nevada corporation;
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`“Mayflower Impoundments Area” will have the same meaning as the “Mayflower
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`Tailings” as defined in the AOC;
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`“MDL Court” will mean the New Mexico federal district court presiding over the
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`MDL Litigation;
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`“MDL Litigation” will mean the Multidistrict Litigation matters centralized in the
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`District of New Mexico for pretrial proceedings, pursuant to the Transfer Order by the
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`United States Judicial Panel on Multidistrict Litigation, In Re: Gold King Mine Release in
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`San Juan County, Colorado, on August 5, 2015, MDL No. 2824. MDL Litigation includes
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`those matters with individual docket numbers 16-cv-465-WJ-LF; 16-cv-931-WJ-LF; 18-cv-
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`319-WJ; 18-cv-744-WJ;
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`“National Contingency Plan” or “NCP” shall mean the National Oil and Hazardous
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`Substances Pollution Contingency Plan promulgated pursuant to Section 105 of CERCLA, 42
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`U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto.
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`“Paragraph” will mean a portion of this Consent Decree identified by an Arabic numeral
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`or an upper or lower case letter;
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`“Parties” will mean the United States, the State, and the Settling Defendants;
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` “RCRA” will mean the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992 (also known
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`as the Resource Conservation and Recovery Act);
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`“Section” will mean a portion of this Consent Decree identified by a Roman numeral.
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`“Settling Defendants” will mean the Sunnyside Gold Corporation (“SGC”) and the
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`Kinross Gold Corporation (“KGC”);
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`“Settling Defendants’ Related Parties” will mean: (i) Settling Defendants’ successors
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`and assigns, and estates, but only to the extent that the liability of such person or entity is based
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`on the liability of Settling Defendants; (ii) Settling Defendants' former or current officers,
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`directors and employees, but only to the extent that the liability of any such person is based on
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`acts and/or omissions which occurred in the scope of the person's employment or capacity as an
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`officer, director, and employee; and (iii) the following Affiliates of Settling Defendants: Echo
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`Bay Inc., KGUSA, White Pine Gold Corporation, Echo Bay Management Corporation, and Echo
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`Bay Exploration Inc. and their successors and assigns but only to the extent the liability of these
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`entities, and their successors and assigns, relates to the Site or their capacity as an Affiliate of
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`Settling Defendants;
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`“Settling Federal Agencies” will mean EPA, DOI, and the United States Department of
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`Agriculture, on behalf of the United States Forest Service, and their successor departments,
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`agencies, or instrumentalities;
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`“SGC” will mean Sunnyside Gold Corporation, a Delaware corporation;
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`“SGC MDL Counterclaims” will mean collectively any and all counterclaims,
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`crossclaims, or other claims by SGC against the United States included in any pleading in the
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`MDL Litigation including claims for Due Process violations, common law contribution, and
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`those brought under CERCLA sections 107(a) for cost recovery, 113(g)(2) for future costs,
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`113(f)(3)(B) for contribution, and any claim under section 113(f)(1) for contribution;
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`“SGC Property” will mean real property currently owned by SGC within the Site,
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`excluding the house and lot owned by SGC located at 1751 Mineral Street, Silverton, CO 81433;
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`“Site” will mean the Bonita Peak Mining District Superfund Site in San Juan County,
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`Colorado, EPA Docket ID No. EPA-HQ-OLEM-2016-0152, as published in the Federal Register
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`on September 9, 2016, 81 Fed. Reg. 62397. The definition for this Site will be construed to
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`include all areas of the Site ever defined or described by EPA for purposes of or in relation to the
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`National Priorities List, 40 C.F.R. Part 300, including any further expansion of such Site as may
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`in the future be determined by EPA;
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`“Special Account” will mean the site-specific special account, within the EPA Hazardous
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`Substance Superfund, established for the Site by EPA pursuant to Section 122(b)(3) of
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`CERCLA, 42 U.S.C. § 9622(b)(3);
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`“State” will mean the State of Colorado and each of its departments, agencies, and
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`instrumentalities, including the CWQCD;
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`“State Natural Resource Trustees” will mean the Colorado Attorney General and the
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`executive directors of Colorado’s Department of Public Health and the Environment and
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`Department of Natural Resources;
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`“Transfer” will mean to sell, assign, convey, lease, mortgage, or grant a security interest
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`in, or where used as a noun, a sale, assignment, conveyance, or other disposition of any interest
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`by operation of law or otherwise. “Transferred,” “Transferring” and “Transferee” will have the
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`corresponding meaning;
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`“UAO” will mean the Unilateral Administrative Order for Remedial Investigation issued
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`by EPA to SGC on March 15, 2018, including all appendices thereto, with respect to Operable
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`Unit 3 within the Site, as modified by its First Modification issued April 16, 2018, and the June
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`7, 2019 modifications of the Statement of Work, Work Plan, and Field Sampling Plan;
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`“United States” will mean the United States of America and each department, agency,
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`and instrumentality of the United States, including EPA, DOI, BLM, USDA, and USFS;
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`“USA MDL Crossclaims” will mean collectively all crossclaims or other claims by the
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`United States against SGC, KGC, or KGUSA included in any pleading in the MDL Litigation,
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`including common law contribution and those claims brought under CERCLA sections 107(a)
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`for cost recovery, 113(g)(2) for future costs, and any claim under section 113(f)(1) for
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`contribution;
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`“USDA” will mean the United States Department of Agriculture, and its successor
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`departments, agencies, or instrumentalities;
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`“USFS” will mean the USDA Forest Service and its successor departments, agencies, or
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`instrumentalities; and
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`“White Pine Gold Corporation” will mean White Pine Gold Corporation, a Delaware
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`corporation and an Affiliate of SGC.
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`V.
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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 for
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`Settling Defendants and Settling Federal Agencies each to make a cash payment to resolve
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`finally their alleged civil liability, and the liability of Settling Defendants’ Related Parties, with
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`regard to the Site under CERCLA, CWA, and RCRA as provided in the Covenants by Plaintiffs
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`in Section VIII, subject to the Reservations of Rights by United States and the State in Section X,
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`and as provided in the Covenants by Settling Defendants in Section IX and the Effect of
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`Settlement/Contribution Protection in Section XI.
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`VI.
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` PAYMENTS
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`5.
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`Payments by Settling Defendants to the United States. Within 30 days after the
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`Effective Date, SGC will make payment in the amount of $40,950,000. If SGC does not make
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`full payment within the time specified, KGC will make the full payment, including Interest
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`pursuant to Paragraph 10, within five Days of such due date. Settling Defendants will make
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`payment at https://www.pay.gov to the U.S. Department of Justice account, in accordance with
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`instructions provided to Settling Defendants by the Financial Litigation Unit (“FLU”) of the U.S.
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`Attorney's Office for the District of Colorado. The payment instructions provided by the FLU
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`will include a Consolidated Debt Collection System (“CDCS”) number, which will be used to
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`identify all payments required to be made in accordance with this Consent Decree. The FLU
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`will provide the payment instructions to:
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`Name: Crowley Fleck PLLP c/o Brian Holland
`Address: 65 East Broadway Street, Suite 400, Butte MT 59701
`Phone: (406) 221-2428
`Email: bholland@crowleyfleck.com
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`Settling Defendants may change the individual to receive payment instructions on their behalf by
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`providing written notice of such change to DOJ in accordance with Section XIV (Notices and
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`Submissions).
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`6.
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`Deposit of Payment. The total amount to be paid pursuant to Paragraph 5 will be
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`deposited by EPA in the Special Account to be retained and used to conduct or finance response
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`actions at or in connection with the Site, or to be transferred to appropriate federal accounts.
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`7.
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`Notice of Payment. At the time of any payment required under Paragraph 5,
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`Settling Defendants will send notice that payment has been made to DOJ, EPA, USDA, and DOI
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`in accordance with Section XIV (Notices and Submissions). Such notice will reference the
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`CDCS Number, Site ID Number A8M5, and DJ Number 90-11-3-1176.
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`8.
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`Payment by Settling Defendants to the State. Within 30 days after the Effective
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`Date, SGC will pay to the State $4,050,000 either: by official bank check made payable to
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`Colorado Department of Public Health and Environment and shall reference Bonita Peak Mining
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`District – KGC / SGC; or by other means agreed to by the Settling Defendants and the State. If
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`SGC does not make full payment within the time specified, KGC will make the full payment,
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`including Interest pursuant to Paragraph 10, within five Days of such due date. If paying by
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`bank check, Settling Defendants will send the bank check to:
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`9.
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`Colorado Department of Public Health and Environment
`HMWMD, Attn: Jessica Hubbard, B2
`4300 Cherry Creek Drive South
`Denver, CO 80246-1530
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`Payments by Settling Federal Agencies.
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`a.
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`As soon as reasonably practicable after the Effective Date, the United
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`States, on behalf of Settling Federal Agencies, will make payment in the amount of $45,000,000
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`to appropriate federal accounts.
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`b.
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`Interest. In the event that any payment required by Paragraph 9.a is not
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`made within 120 days after the Effective Date, the United States, on behalf of Settling Federal
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`Agencies, will pay Interest on the unpaid balance, with such Interest commencing on the 121st
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`day after the Effective Date and accruing through the date of the payment.
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`c.
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`The Parties to this Consent Decree recognize and acknowledge that the
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`payment obligations of Settling Federal Agencies under this Consent Decree can only be paid
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`from appropriated funds legally available for such purpose. Nothing in this Consent Decree will
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`be interpreted or construed as a commitment or requirement that any Settling Federal Agency
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`obligate or pay funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any
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`other applicable provision of law.
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`VII.
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` FAILURE TO COMPLY WITH CONSENT DECREE
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`10.
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`Interest on Late Payments. If Settling Defendants fail to make any payment under
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`Paragraphs 5 or 8 by the required due date, Interest will accrue on the unpaid amount starting
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`from the Effective Date through the date of payment. Settling Defendants are jointly and
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`severally liable for Interest due under any provision of this Consent Decree.
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`11.
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`Stipulated Penalty.
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`a.
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`If any amounts due to the United States under Paragraph 5 or due to the
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`State under Paragraph 8 are not paid by the required date, Settling Defendants will be in
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`violation of this Consent Decree and will pay, as a stipulated penalty, in addition to the Interest
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`required by Paragraph 10 (Interest on Late Payments), $1,000 per each Day that such payment is
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`late. Settling Defendants are jointly and severally liable for any stipulated penalty due under any
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`provision of this Consent Decree, except that SGC alone is liable for penalties under Paragraph
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`11.b.
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`b.
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`If SGC does not comply with Paragraph 36 (Agreements Regarding
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`Access and Non-Interference), SGC shall be in violation of this Consent Decree and shall pay to
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`the United States, as a stipulated penalty, $1,000 per violation per day of such noncompliance.
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`c.
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`Stipulated penalties are due and payable within 30 Days after the date of
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`the demand for payment of the penalties by the United States or the State. All payments to the
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`United States under this Paragraph will be identified as “Stipulated Penalties” and will be made
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`at https://www.pay.gov to the U.S. Department of Justice account, in accordance with
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`instructions provided to Settling Defendants by the FLU of the U.S. Attorney’s Office for the
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`District of Colorado, noting the DJ number 90-11-3-11676. All payments to the State under this
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`Paragraph will be identified as “Stipulated Penalties” and will be made in accordance with
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`payment instructions set forth in Paragraph 8 above.
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`d.
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`At the time of payment, Settling Defendants will send notice that payment
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`has been made to DOJ as provided in Paragraph 7 (Notice of Payment).
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`e.
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`Penalties will accrue as provided in this Paragraph 11 regardless of whether
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`the United States or the State has notified Settling Defendants of the violation or made a demand
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`for payment, but penalties need only be paid upon demand. All penalties will begin to accrue on
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`the Day after payment or performance is due and will continue to accrue through the date of
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`payment or the final day of correction of the noncompliance or completion of the activity.
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`Nothing in this Consent Decree will prevent the simultaneous accrual of separate penalties for
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`separate violations of this Consent Decree.
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`12.
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`If the United States or the State brings an action to enforce this Consent Decree
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`and is the prevailing party, Settling Defendants will reimburse the United States or the State, as
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`applicable, for all costs of such action, including but not limited to costs of attorney time.
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`13.
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`The obligations of Settling Defendants to pay amounts owed to the United States
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`and the State under this Consent Decree are joint and several. In the event of the insolvency of
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`any Settling Defendant or the failure by any Settling Defendant to make the payments required
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`under this Consent Decree, the remaining Settling Defendants will be responsible for such
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`payments. This Paragraph shall not apply to penalties under Paragraph 11.b.
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`14.
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`Payments made under this Section will be in addition to any other remedies or
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`sanctions available to the United States by virtue of Settling Defendants’ failure to comply with
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`the requirements of this Consent Decree.
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`15.
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`Notwithstanding any other provision of this Section, the United States or the State
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`may, in their unreviewable discretion, waive payment of any portion of the stipulated penalties
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`that have accrued pursuant to this Consent Decree. Payment of stipulated penalties will not
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`excuse Settling Defendants from payment as required by Paragraph 5 (Payments by Settling
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`Defendants to the United States) or Paragraph 8 (Payments by Settling Defendants to the State)
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`or from performance of any other requirements of this Consent Decree.
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`VIII.
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` COVENANTS BY PLAINTIFFS
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`16.
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`Covenants for Settling Defendants by United States. Except as specifically
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`provided in Paragraph 27 (General Reservations of the United States’ and the State’s Rights), the
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`United States covenants: (a) not to sue or to take administrative action against Settling
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`Defendants pursuant to Sections 106, 107(a), and 113 of CERCLA, 42 U.S.C. §§ 9606, 9607(a),
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`and 9613, with regard to the Site; (b) not to sue or to take administrative action against Settling
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`Defendants pursuant to Section 3008 and 7003 of RCRA, 42 U.S.C. §§ 6928 and 6973, in
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`connection with the Site; (c) not to sue or to take administrative action against SGC relative to
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`the AO, AOC, or UAO and to terminate the AO, AOC, and UAO and release SGC from all
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`liabilities with respect thereto; and (d) not to sue or to take administrative action against Settling
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`Defendants pursuant to Section 309 and 311 of the CWA, 33 U.S.C. §§ 1319 and 1321, in
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`connection with the Site.
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`17.
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`The United States further covenants to: (a) make the necessary stipulated
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`dismissal filing in the MDL Litigation within 40 Days of the Effective Date, conditioned upon
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`the satisfactory performance by Settling Defendants of their obligations to make payments
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`pursuant to Paragraph 5 (Payments by Settling Defendants to the United States) and Paragraph 8
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`(Payments by Settling Defendants to the State) under this C