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State v. United States

United States District Court, Tenth Circuit

December 12, 2013

STATE OF COLORADO, Plaintiff,
v.
UNITED STATES OF AMERICA; TABLE MOUNTAIN RESEARCH CENTER, f/k/a COLORADO SCHOOL OF MINES RESEARCH INSTITUTE; CHEVRON CORPORATION; INDUSTRIAL MINERA MEXICO, S.A. de CV.; MEXICANA DE COBRE, S.A. de C
v.
; FREEPORT-MCMORAN CORPORATION; BP AMERICA INC.; COTTER CORPORATION (N.S.L.); ELF AQUITAINE, INC.; TERRA INDUSTRIES INC.; and EXXON MOBIL CORPORATION, Defendants.

CONSENT DECREE

KATHLEEN M. TAFOYA, Magistrate Judge.

BACKGROUND

A. The STATE OF COLORADO ("Colorado") is filing a complaint (the "Complaint") in this matter pursuant to sections 107(a) and 113 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") against the above-named Defendants, seeking reimbursement of response costs incurred and to be incurred for response actions taken at or in connection with the release or threatened release of hazardous substances at the CSMRI Site in Golden Colorado (as described below, the "Site").

I

EXHIBIT A

B. The Complaint arises out of activities in connection with a mining research center established at the Site in 1912. The research center was used to develop new technologies and products and for other purposes generally related to mining. Minerals, ores and other materials were brought to the research facility for analysis, beneficiation and experimentation. In 1987, all such operations ceased at the facility.

C. Pursuant to the Colorado Radiation Control Act, C.R.S. Title 25, Art. 11, and the State of Colorado Rules and Regulations Pertaining to Radiation Control, Part 3, the Colorado Department of Public Health and Environment ("CDPHE") radiation control unit issued to the Colorado School of Mines Research Institute ("CSMRI") as licensee Radioactive Materials License No. Colorado, 617-01, as amended, with an expiration date of February 28, 2011 ("CSMRI License"). The CSMRI License does not clearly define the area subject to it, but that area generally includes at least parts of the Site. The licensee has obligations under the license to decommission the site and obtain license termination ("Site-related obligations"). CDPHE has been involved in investigation and cleanup activities at the Site pursuant to the CSMRI License and applicable regulations. The CDPHE radiation control unit separately issued to the Colorado School of Mines ("CSM") as licensee Radioactive Materials License No. Colorado, 1206-01, with an expiration date of July 26, 2017 ("CSM License"). The CSM License generally covers the possession and storage of ground water containing uranium, and any unknown sources of radioactive material contributing to uranium in ground water within the portion of the Site known as the Lower Terrace. Subsequent to the issuance of the CSM License, CDPHE terminated the CSMRI License by Amendment Number 08, dated December 19, 2012.

D. The Parties contemplate that the remaining Site-related obligations will consist of appropriate actions to address the ground water contamination detected in the monitoring wells located on the Lower Terrace and Former Settling Pond Area (as described in Attachment A). CDPHE is considering different approaches to radioactive materials licensing for the remaining Site-related obligations. The Parties contemplate that Site-related obligations will terminate when CDPHE issues a no further action determination, license termination, approval of institutional controls or similar action for the CSM License that cover such remaining Site-related obligations.

E. The Parties that have entered into this Consent Decree ("Decree") do not admit any fact or liability arising out of the transactions or occurrences alleged in the Complaint or otherwise.

F. This Decree has been negotiated by the Parties in good faith. Settlement of this matter will avoid prolonged and complicated litigation between the Parties. This Decree is fair, reasonable, and in the public interest.

Now, therefore, upon the consent and agreement of the Parties, this Court Orders, Adjudges and Decrees as follows:

I. JURISDICTION AND VENUE

1. Jurisdiction and Venue. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331 and 42 U.S.C. §§ 9607 and 9613(b). This Court also has personal jurisdiction over the Parties. Venue in this District is proper pursuant to 42 U.S.C. § 9613(b) because the actions giving rise to this case occurred in Colorado. The Parties waive all objections and defenses that they may have to jurisdiction of the Court or to venue in this District for purposes of this Decree with these Parties. Colorado reserves all rights it may have to assert Eleventh Amendment privileges and immunities against any person not a Party to this Decree. The Parties shall not challenge the terms of this Decree or this Court's jurisdiction to enter and enforce this Decree. Pursuant to this Decree, the Court retains jurisdiction to enforce the terms of this Decree, including but not limited to hearing disputes pursuant to Paragraph 10 and hearing claims for Unanticipated Future Response Costs incurred at the Site to the extent provided in Paragraph 20 of this Decree.

II. DEFINITIONS

2. Definitions. Unless otherwise expressly provided in this Decree, terms used in this Decree that are defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning assigned to them in CERCLA or in such regulations. Whenever terms listed below are used in this Decree or in the appendices attached hereto and incorporated hereunder, the following definitions shall apply solely for purposes of this Decree:

a. "Affiliate" means, with respect to any specified person or entity, any other person or entity that, directly or indirectly, controls, is controlled by or is under common control with such specified person or entity; with the term "control" (and its derivatives) meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person or entity, whether through the ownership of voting securities, contract or otherwise. The term "Affiliate" shall not include any entity identified on Attachment B.

b. "Cash Out Party" shall mean any Party, other than Colorado or CSMRI, that pays its Negotiated Share of Cash Out Payment pursuant to Paragraph 28 of this Decree.

c. "CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-9675.

d. "CDPHE" shall mean the Colorado Department of Public Health and Environment, and any successor departments, agencies, or instrumentalities.

e. "Colorado" shall mean the State of Colorado and all of its agencies, departments, and instrumentalities including the Colorado School of Mines, and their officers, agents, and employees.

f. "CSM" shall mean the Colorado School of Mines.

g. "CSMRI" shall mean the Colorado School of Mines Research Institute, a Colorado non-profit corporation, now by name change known as Table Mountain Research Center.

h. "CSMRI Site" or "Site" shall mean the Colorado School or Mines Research Institute Site, located in Golden, Colorado, on the south side of Clear Creek, Section 33, Township 3 South, Range 70 West, including but not limited to the "Fenced Area, " the "Lower Terrace and Former Settling Pond Area, " the "Softball Area, " the athletic fields and the "Greater Clay Pits Area, " which comprise the CSMRI Site as depicted in Attachment A.

(i). "The Lower Terrace and Former Settling Pond Area" means that part of the CSMRI Site located immediately adjecent to the south side of Clear Creek, below the upper terrace area where the CSMRI Site buildings were located, part of which was formerly used for a tailings or settling pond for the research center. The Lower Terrace and Former Settling Pond Area is depicted in Attachment A.

(ii). The CSMRI Site does not include the CSMRI Table Mountain facility, a separate research facility located on McIntyre Street in unincorporated Jefferson County, Colorado.

i. "Day" shall mean a calendar day. In computing any period of time under this Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next working day.

j. "Decree" shall mean this Consent Decree and all attachments appended hereto. In the event of conflict between this Decree and any attachments, this Decree shall control.

k. "Effective Date of this Decree" shall mean the date on which the Court enters the Decree.

l. "EPA" shall mean the United States Environmental Protection Agency and any successor departments, agencies, or instrumentalities.

m. "Incurred" shall mean (i) with respect to a direct and/or out of pocket expense, the date the expense is paid; (ii) with respect to interest, the date interest accrues; and (iii) with respect to a task that has an indirect expense associated with it, the date the task is performed.

n. "Interest" shall mean interest at the current rate specified for interest on investments of the EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507, compounded monthly, in accordance with 42 U.S.C. § 9607(a).

o. "Non-Cash Out Party" shall mean any Party, other than Colorado or CSMRI, that does not pay its Negotiated Share of Cash Out Payment pursuant to Paragraph 28 of this Decree.

p. "Paragraph" shall mean a portion of this Decree identified by an Arabic numeral or a lower-case letter.

q. "Parties" shall mean Colorado, Settling Private Parties, CSMRI and the United States.

r. "Response Costs" shall mean all costs of "response" as that term is defined in Section 101(25) of CERCLA, 42 U.S.C. §9601(25), for response actions conducted at or in connection with the Site.

(i). "Past Response Costs" shall mean all Response Costs incurred from June 1, 1997, through January 31, 2012, by Colorado. Past Response Costs shall also include that portion of S.M. Stoller invoice #120201 that exceeds $47, 274.03, the expenses for all other work performed to excavate, stockpile, remove, transport, dispose and analyze soil in 2011, and the expenses for site coordination tasks performed by CSM in January 2012, whether or not these expenses were "incurred" by January 31, 2012.

(ii). "Anticipated Future Response Costs" shall mean all Response Costs incurred after January 31, 2012, which are incurred pursuant to a work plan approved by CDPHE and which are necessary to address ground water contamination detected in the monitoring wells located on the Lower Terrace and Former Settling Pond Area in order to obtain a no further action determination, radioactive materials license termination, approval of institutional controls or similar action by CDPHE. Anticipated Future Response Costs do not include interest, legal fees and costs, or internal or indirect costs incurred by any Party, except Anticipated Future Response Costs include the reasonable costs of coordination of Site response activity, including administering the Joint Escrow Account described in Paragraph 7, by a CSM employee and reasonable and necessary compliance related, non-litigation legal fees associated with Site response activities. Anticipated Future Response Costs shall also include the first $47, 274.03 of S.M. Stoller invoice #120201.

(iii). "Unanticipated Future Response Costs" shall mean all Response Costs incurred after the date of entry of this Decree that are not Anticipated Future Response Costs.

s. "Section" followed by a Roman numeral shall mean a portion of this Decree identified by an uppercase Roman numeral.

t. "Settling Private Parties" shall mean those entities listed on Attachment C to this Decree; the respective predecessors, successors and past and present Affiliates of those entities; respective successors to such Affiliates (to the extent of their liability as successors); and all of such entities' respective officers, directors, agents and employees. CSMRI is not a Settling Private Party. The term "Settling Private Party" shall not include any entity identified on Attachment B.

u. "United States" shall mean the United States of America and all of its agencies, departments and instrumentalities, their officers, agents and employees, and all predecessors and successors to those entities, including but not limited to the Tennessee Valley Authority; United States Air Force; United States Army; United States Army Corps of Engineers; United States Bureau of Land Management, a bureau of the United States Department of the Interior; United States Bureau of Reclamation, a bureau of the United States Department of the Interior; United States Defense Logistics Agency, an agency of the United States Department of Defense; United States Defense Threat Reduction Agency; United States Department of Commerce; United States Department of Defense; United States Department of Energy; United States Department of the Interior; United States Forest Service; United States Geologic Survey, a bureau of United States Department of the Interior; United States Navy; United States National Institute of Standards And Technology, a bureau of the United States Department of Commerce; and the United States Office of Surface Mining, a bureau of the United States Department of the Interior.

III. PARTIES BOUND

3. Parties Bound. This Decree applies to and is binding upon Colorado, the Settling Private Parties, CSMRI, the United States and their successors and assigns. The execution of this Decree and all actions taken pursuant to this Decree shall not, under any circumstances, constitute or be construed as an admission by any Party of any fact or liability or a concession of any question of law with respect to the Site or with respect to any solid or hazardous wastes or hazardous substance allegedly contributed to or released at or from the Site. This Decree shall not constitute admissible evidence in any proceeding except in an action to seek enforcement of any terms herein or for the purpose of asserting the contribution protection provided in Paragraph 22, below. The Parties retain the right to controvert in any subsequent proceedings other than proceedings to implement or enforce this Decree, any and all issues of fact or law, unless this Decree specifically waives such right. The Parties agree not to contest the authority of any Party to enter into this Decree.

IV. SETTLEMENT PAYMENTS

4. Payment of Past Response Costs. As soon as reasonably practicable after the Effective Date of this Decree, each Non-Cash Out Party will pay to Colorado its negotiated share of the past response cost settlement amount of $7, 755, 000 ("Negotiated Share of Past Response Costs Settlement") as set forth in Attachment D to this Decree. The Cash Out Parties will not make any payments under this Paragraph 4, but their respective Negotiated Shares of Past Response Costs Settlement shall be paid from their respective Negotiated Shares of Cash Out Settlement paid to Colorado under Paragraph 28, with no further payment by the Cash Out Parties. In Colorado's sole discretion, the Past Response Costs settlement payments may be allocated to Colorado's costs related to Site cleanup, including attorneys' fees, costs and interest, incurred prior to the Effective Date of this Decree; provided, however, that any such allocation shall be of no effect in any future proceedings among the Parties. In lieu of CSMRI making any payment for Past Response Costs to Colorado or any other Party, CSMRI will not recover or seek to recover from any other Party any Response Costs CSMRI has incurred. If a payment required under this Paragraph is not made in full by a Non-Cash Out Party within 120 days after the Effective Date of this Decree, then the non-paying Party will incur Interest on its unpaid balance commencing on the 121st day after the Effective Date of this Decree. If a ...


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