UNITED STATES DISTRICT COURT DISTRICT OF COLORADO

Civil Action No. 83-C-2388 (consolidated with 86-C-1675) FIL E PLAN

STATE OF COLORADO

Plaintiff ,

v.

ASARCO, Inc. et al.,

Defendant s and Third-Party Plaintiffs ,

v.

Leadville Corporation, et al.,

Third-Part y Defendants .

UNITED STATES OF AMERICA, Plaintiff ,

v.

APACHE ENERGY AND MINERALS COMPANY, et al.,

Defendants .

PARTIAL CONSENT DECREE
TABLE OF CONTENTS

I. BACKGROUND ................... . 3

I I. JURISDICTION .................. 

III. PARTIES BOUND ................... 11

± V. DEFINITIONS ................... 

, V. GENERAL PROVISIONS ................ 1

V I. REIMBURSEMENT OF RESPONS E COST S .......... 18

VII. COVENANTS NOT TO SUE .............. . 21

VIII. EFFECT OP SETTLEMENT: CONTRIBUTION PROTECTION .. . 29

I X. EFFECTIVE DATE ................. . 3

X. SUPERSESSION OF PRIOR ORDERS ........... 32

X I. RETENTION OF JURISDICTION ...........

XII . LODGING AND OPPORTUNIT Y FOR PUBLI C COMMENT .... 32

XIII. COSTS OF SUIT AND ENFORCEMENT ........... 33

XIV . SIGNATORIES/SERVICE . ......

Appendix A -- Map entitled Malta Tailings and Adjacen t Areas.

Appendix B-•-- Site map.
UNITED STATES DISTRICT COURT DISTRICT OF COLORADO

Civil Action No. 83-C-2388 (consolidated with 86-C-1675 )

STATE OF COLORADO

Plaintiff ,

v.

ASARCO, Inc. et al.,

Defendant s an d Third-Part y Plaintiffs ,

v.

Leadville Corporation, et al.,

Third-Party Defendants.

UNITED STATES OF AMERICA , Plaintiff ,

v.

APACHE ENERGY AND MINERALS COMPANY , et al..

Defendants .

PARTIAL CONSENT DECREE

I . BACKGROUND

A. On August 6, 1986, the United State s of America ("United

States") , on behalf of the Administrator of the United States

Environmental Protection Agency ("EPA" ) , filed a complaint in this

matter pursuant to Sections 106 and 107 of the Comprehensive

Environmental Response, Compensation, and Liabilit y Act ("CERCLA") ,

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42 U.S.C . §§ 9606, 9607, seeking injunctive relief for the

performance of response actions, consistent with the National

Contingency Plan, 40 C.F.R . Part 300 (as amended) ("the NCP"), and

for reimbursement of costs incurred and to be incurred by the

United State s from, among others, Hecla Mining Company, ("Hecla" )

in response to the release or threat of release of hazardous

substances at the California Gulch Superfun d Sit e ("Site" ) located

in and around Leadville, Colorado.

B. On December 9, 1983, the Stat e of Colorado ("State" ) also

filed a complaint against certain parties in this Court allegin g

that certain defendant s are liable to the Stat e under Section 107

of CERCLA, 42 U.S.C . § 9607. Although the Stat e did not name Hecla

in its complaint, beginning in August 1991, the Stat e has been

provided with an opportunity to participate in the settlement

negotiations between the United State s and Hecla in accordance with

t he NCP an d Sectio n 122(f)(1)(F) of CERCLA, 42 U.S.C .

§ 9622(f)(1)(F) .

C. Pursuant to Section 105 of CERCLA, 42 U.S.C . § 9605, EPA

placed the Sit e on the National Priorities List , set forth at 40

C.F.R . Part 300, Appendix B, by publication in the Federal Register

on September 8, 1983, 48 Fed. Reg. 40,658, 40,670.

D. Hecla Mining Company is a Delaware corporation, with its

principal place of business at Coeur d1 Alene, Idaho. Day Mines,

Inc. ("Day Mines") , an Idaho corporation, merged with Hecla on

October 20, 1981, pursuant to statutory merger.

E. Beginning in 1974, pursuant to a lease with Leadville
Corporation, Hecla and/or Day Mines mined and milled ores from the

Sherman Mine. Approximatel y 680,000 tons of ore from the Sherman

Mine were milled in an on-site flotatio n mill , known as the

Stringtown mill facility , by Hecla or Day Mines during their

millin g operations which were conducted from 1974 through 1987.

Operation at the Stringtown mill facilit y occurred intermittently

in the later years.

F. Mil l tailings were deposited in the Malta Gulch Tailings

Impoundments. The Malta Gulch Tailings Impoundments and adjacen t

property are presently owned by Leadville Corporation and are

located in the center of the NW 1/4 Sectio n 27, T.9.S , R.80.W. , 6th

Principal Meridian, at Longitude 106 19 28" West and Latitude 39

1 4 27" North. As identified in the Colorado Mined Land

Reclamation Division Permit Number M-77-249, the Malta Gulch

Tailings Impoundments encompass 3 mill tailings basins (numbered 1,

2 and 3 on Appendix A), 2 water retention ponds (numbered 4 and 6)

and a clarificatio n pond (number 5).

G. Mill tailings were deposited directly into the tailing

impoundments (nos. 1, 2 and 3) during Hecla/Da y Mines operations.

The water retention and clarificatio n ponds contain a thin veneer

(les s than 4 feet ) of mill tailings material that was captured from

impoundment pond overflow. Two localized areas of tailings from

pipe spills , comprising less than 10 cubic yards in total , have

been identified south of the Malta Gulch Tailings Impoundments. Hecla and Day Mines disposed of no other tailings or mine waste

within the Site .
H. Approximately 760,000 tons (630,000 cubic yards) of

tailings, occupying about 23 acres, are present at the facility .

T he Malta Gulch Tailings Impoundments are within the California

Gulch Superfun d Sit e as defined by the United State s for this

proceeding. The approximate location of the Malta Gulch Tailings

Impoundments within the Site is depicted as Tailin g Impoundment

Area 5 in the map attached hereto as Appendix B.

I. Mil l tailings , such as the Malta Gulch Tailings , are the

fin e grained particles and residual material which remain after

millin g and separation has removed most of the metal as

concentrates from the ore. Certain constituents in these tailings ,

including lead, cadmium, arsenic and zinc, are considered

"hazardous substances" within the meaning of CERCLA Section

101(14) , 42 U.S. C § 9601(14) . Detectable concentrations of mercury

and cyanide are also present. Mil l tailings , including the Malta

Gulch Tailings , release or have the potential to release these

•hazardous substances" to soils, groundwater and/or surface water

at the Site .

J. The Ore & Chemical Company ("the Company") was

incorporated in New York in 1923. In January, 1943, the Company

obtained a Certificate of Authority to do business in the State of

Colorado. From fal l 1943 until August 17, 1946, the Company

operated a large tonnage sink-float mill on property known as the

Herman Placer, which is contained within the current Malta Gulch

Tailings Impoundments. During its operations, it is estimated that

Ore & Chemical Company disposed of approximately 800,000 tons of
mill tailings in close proximity to the area where the Malta Gulch

Tailings Impoundments are now located. The Malta Gulch Tailings

Impoundments as currently constructed actually were built by Hecla

and include an estimated 200,000 tons of those mill tailings

generated by the mill operations of the Ore & Chemical Company.

 K. On September 22, 1986, Hecla filed a counterclaim against

the United States . On September 22, 1993, Hecla moved to fil e an

amended counterclaim against the United States . On October 4,

1993, the United State s filed a response to Hecla1s amended

complaint.

L. In the Amended Counterclaim of Hecla Mining Company,

filed on September 22, 1993, Hecla alleged the United State s is

liable as an owner and operator of the Ore & Chemical Corporation

f or releases of tailings materials containing hazardous substances

from the Malta Gulch Tailings Impoundments portion of the Site . Hecla asserted two theories of liability : that United State s

contracted for the entire production of the Ore & Chemical mill

from late 1943 until August 1946, and that the United State s

appropriated Ore & Chemical pursuant to the Tradin g with the Enemy

Act , 50 App. U.S. C § 1 £t seq. and Vestin g Order No. 2587.

M. On September 12, 1991, EPA and Hecla entered into an

Administrative Order on Consent ("the AOC") (EPA Docket No. CERCLA- VIII-91-24) , for the performance of an Engineering Evaluation/Cost

Analysis ("EE/CA" ) for the Malta Gulch Tailings Impoundments. The

purpose of this EE/CA was to determine the nature and extent of any

releases at and from the Malta Gulch Tailings Impoundments as
therein defined and to determine an appropriate response action for

the Malta Gulch Tailings Impoundments. Thi s EE/CA was approved as

complete on August 2, 1993. An appropriate response action has

been selected, not inconsistent with the NCP, by EPA in an Action

Memorandum issued September 10, 1993.

N. The EE/CA was issued for public inspection on August 2,

1993. A notice describing the EE/CA and announcing its

availability for review and comment was published in a major local

newspaper of general circulation on Jul y 28, 1993. Any oral or

written comments received concerning the EE/CA and EPA's response

to any comments received during this public participation process

were placed in the administrative record for the Site in accordance

with Sectio n 300.820 of the NCP . O. The EE/CA recommended the implementation of a response

action at the Malta Gulch Tailings Impoundments. The Action

Memorandum selected the response action to be implemented at the

Malta Gulch Tailings Impoundments consistent with the EE/CA. In

addition to the implementation of a response action consistent with

the Action Memorandum, a decision by EPA on the final remedial

action for the Malta Gulch portion of the Sit e will be embodied in

a Record of Decision ("ROD") . The State and the general public

will be provided an opportunity to review and comment on the ROD,

in accordance with CERCLA and the NCP.

P. On Apri l 9, 1992, the United States , on behalf of the

Environmental Protection Agency, and Hecla entered into a partial

consent decree, which settled Hecla' s "Sitewide Liabilities" for

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the Sit e as defined in the complaint in this action. Thi s

"Sitewide Liabilities* partial consent decree resolved the United

States claims against Hecla in this action except for those claims

related to the Malta Gulch Tailings and natural resource damages,

if any. Thi s "Sitewide Liabilities" partial consent decree was

entered by the Court on January 6, 1993.

Q. In accordance with Section 122 (j) (1) of CERCLA, 42 U.S.C .

§ 9622 (j)(l), on May 2, 1991, EPA, through the Department of

Justice , notified the Department of the Interior of negotiations

with potentiall y responsible parties, including Hecla, regarding

the release of hazardous substances that may have resulted in

injury to the natural resources under Federal trusteeship. EPA

encouraged the trustee (s) to participate in the negotiation of

settlements for the Site , including this Partial Consent Decree.

R. The settlement amount to be paid by Hecla and the United

State s under this Consent Decree to reimburse the Hazardous

Substance Trust Fund is based on the estimated cost of performing

the response action selected in the Action Memorandum and the costs

the United States has incurred in connection with the AOC and the

negotiation of this Partial Consent Decree. The amount obtained

from Hecla and the United State s under this Partial Consent Decree

also includes a "premium payment" as defined in EPA's "Guidance on

Premium Payments in CERCLA Settlements," issued on November 17,

1988.

S. Entering into this Consent Decree shall in no way be

construed as an admission of any legal or equitable liabilit y or
any admission of fact s on the part of Hecla or the United States .

Except as provided elsewhere in this Decree, Hecla and the United

State s have not waived any claims or defenses they may have under

any federal , state, local or tribal statute, regulation, or common

law theory related to the Site . The Parties also agree that this

Decree shall not be admissible in any proceeding against Hecla or

the United State s as proof of liabilit y or as an admission of any

fact addressed herein, but it shall be admissible in any action to

enforce this Decree.

T. The Parties recognize, and the Court by entering this

Consent Decree finds , that settlement of this case without further

litigation will expedite the cleanup of the Sit e and will avoid

prolonged and complicated litigatio n between the Parties, and that

this Partial Consent Decree is fair, reasonable, and in the public

interest.

NOW, THEREFORE, before taking any testimony, without any

adjudicatio n of any issue of fact or law, and upon agreement of the

parties to this Consent Decree, it is hereby Ordered, Adjudged, and

Decreed:

I I . JURISDICTIO N

1. Thi s Court has jurisdictio n over the subject matter of

this action pursuant to 28 U.S.C . §§ 1331 and 1345, and 42 U.S.C .

§§ 9606, 9607, and 9613 (b) . Thi s Court also has personal

jurisdictio n over Hecla and the United States . Solel y for the

purposes of this Consent Decree and the underlying complaints,

Hecla waives all objection s and defenses that it may have to

10
jurisdictio n of the Court or to venue in this District. Hecla and

the United State s agree to be bound by the terms of this Consent

Decree and shall not challenge the terms of this Consent Decree or

this Court' s jurisdictio n to enter and enforce this Consent Decree.

III . PARTIES BOUND

2. Thi s Consent Decree applies to and is binding upon the

United State s and upon Hecla and its successors and assigns. Any

change in ownership or corporate status of Hecla including, but not

limited to, any transfer of assets or real or personal property

shall in no way alter Hecla's responsibilities under this Consent

Decree. Until Hecla's obligations under this Decree have been

full y performed, Hecla shall provide EPA notice of any change in

the corporate or legal status or transfer or assignment of a

substantial portion of its assets.

I V . DEFINITION S

3. Unless otherwise expressly provided herein, terms used in

this Consent Decree which are defined in CERCLA or in regulations

promulgated under CERCLA shall have the meaning assigned to them in

CERCLA or in such regulations. Whenever terms listed below are

used in this Consent Decree or in the appendices attached hereto

and incorporated hereunder, the followin g definition s shall apply :

"Action Memorandum" is the primary decision document, issued

by EPA on September 10, 1993, which substantiated the need for a

removal (response) action, identified the proposed action and

explaining the rationale for the removal (response) action for the

Malta Gulch Tailings Impoundments.

11
"AOC" shall mean the Administrative Order on Consent (EPA

Docket No. CERCLA-VIII-91-24 ) entered into by EPA and Hecla on

September 12, 1991 for the performance of an Engineering

Evaluation/Cost Analysis ("EE/CA" ) for the Malta Gulch Tailings

Impoundments.

"CERCLA" shall mean the Comprehensive Environmental Response,

Compensation, and Liabilit y Act of 1980, as amended, 42 U.S.C .

§§ 9601 fit seq.

"Consent Decree" shall mean this Partial Consent Decree and

all appendices attached hereto. In the event of conflic t between

this Decree and any appendix, this Decree shall control.

"Day" shall mean a calendar day unless expressly stated to be

a working day. "Working day" shall mean a day other than a

Saturday, Sunday, or Federal holiday. In computing any period of

time under this Consent Decree, where the last day would fal l on a

Saturday, Sunday, or Federal holiday, the period shall run until

the close of business of the next working day.

"EE/CA" shall mean the Engineering Evaluation/Cost Analysis

f or the Malta Gulch Tailings Impoundments, submitted pursuant to

the AOC and approved by EPA on August 2, 1993.

"EPA" shall mean the United State s Environmental Protection

Agency and any successor departments or agencies of the United

States .

"Future Response Costs" shall mean all costs, including, but

not limited to, direct and indirect costs, the United State s will

incur related to the Malta Gulch.Tailings and areas/media impacted

12
by such tailings after the entry of this Consent Decree. "Future

Response Costs" includes, but is not limited to, all response costs

incurred by the United State s to conduct or oversee remedial work

or other response action work, including the costs of O&M and

groundwater monitoring, or to implement this Consent Decree,

including, but not limited to, payroll costs, contractor costs,

travel costs, laboratory costs, and any costs incurred to obtain

access, perform periodic reviews or take emergency response

actions. In accordance with Section VI, Paragraph 6.d. of this

Consent Decree, "Future Response Costs" does not include

enforcement costs, including attorneys fees , incurred to enforce

the terms of this Consent Decree.

"Malta Gulch Tailings" shall mean the residual material

remaining from millin g by Hecla, Leadville Corporation and Ore &

Chemical Company at the Malta Gulch portion of the Site .

"Malta Gulch Tailings Impoundments" is the area identified in

the Colorado Mined Land Reclamation Division Permit Number M-77-

249, encompassing 3 mill tailings basins (numbered 1, 2 and 3 on

Appendix A), 2 water retention ponds (numbered 4 and 6) and a

clarificatio n pond (number 5). The "Malta Gulch Tailings

Impoundments" contain approximately 760,000 tons (630,000 cubic

yards) of tailings and occupy approximately 23 acres within the

Sit e as defined herein. The Malta Gulch Tailings Impoundments are

depicted in the map attached hereto as Appendix A.

"National Contingency Plan* or "NCP" shall mean the National

Oil and Hazardous Substances Pollutio n Contingency Plan promulgated

13
pursuant to Sectio n 105 of CERCLA, 42 U.S.C . § 9605, codified at 40

C.F.R . Part 300, including, but not limited to, any amendments

thereto.

"Operation 6 Maintenance" or "O&H" shall mean the measures

required to maintain the effectivenes s of the removal (response)

action selected in the Action Memorandum.

"Paragraph" shall mean a portion of this Consent Decree

identified by an arable numeral or an upper case letter.

"Parties" shall mean the United State s and Hecla Mining

Company.

"Fas t Response Costs" shall mean all costs, including, but not

limited to, direct and indirect costs and interest, that the United

State s has incurred with regard to the Malta Gulch Tailings and

areas/media impacted by such tailings prior to the entry of this

Decree. "Past Response Costs" shall include, but are not limited

to, any amount incurred by the United State s in connection with the

AOC (EPA Docket No. CERCLA-VIII-91-24 ) and any costs incurred in

the drafting, negotiation and execution of this Consent Decree.

"Plaintiff" shall mean the United States , on behalf of the

Environmental Protection Agency.

"RCRA" shall mean the Solid Waste Disposal Act , as amended, 42

U.S.C . §§ 6901 et seq. (also known as the Resource Conservation and

Recovery Act) .

"Record of Decision" or "ROD" shall mean the primary decision

document, including any changes or amendments thereto, issued by

E PA pursuant to CERCLA and the NCP that substantiates the need for,

14
selects, and explains the rationale for a remedial action at the

Site, except that for purposes of Paragraph 13, the term "ROD"

shall mean the Record of Decision that selects the remedial action

f or the Malta Gulch Tailings Impoundments portion of the Site .

"Remaining Liabilities" shall mean any and all claims under

Sections 106, 107 and 113 of CERCLA, 42 U.S.C . §§ 9606, 9607 and

9613, pending or which could be made against Hecla, except claims

for natural resource damages (including the costs of assessing such

damages), in this action related to: (1) the investigation and/or

remediation (including any long-term maintenance) of the Malta

Gulch Tailings Impoundments or any other portion of the Sit e as

defined herein, (2) areas/media within the Site as herein defined

impacted by the Malta Gulch Tailings , and (3) Response Costs as

herein defined.

"Response Costs" shall mean Past Response Costs together with

Future Response Costs.

"Section" shall mean a portion of this Consent Decree

identified by a roman numeral.

"Site" shall mean the California Gulch Superfun d Site ,

currently defined as the Remedial Investigation/Feasibilit y Study

area of approximately 16 1/2 square miles located within Lake

County, Colorado and depicted generally on the map attached as

Appendix B.

"State" shall mean the State of Colorado, on behalf of the

Colorado Department of Health.

"UAO" shall mean the Unilateral Administrative Order (EPA

15
Docket No. CERCLA-VIII-93-28 ) issued to Hecla by EPA on September

17, 1993, for implementation of the removal (response) action at

t he Malta Gulch Tailings Impoundments portion of the Sit e selected

in the Action Memorandum.

"United States" shall mean the United States of America,

including its agencies, departments, and instrumentalities.

"Waste Material" shall mean (1) any "hazardous substance"

under Section 101(14) of CERCLA, 42 U.S.C . § 9601(14) ; (2) any

pollutant or contaminant under Section 101(33) , 42 U.S.C .

§ 9601(33) ; and (3) any "solid waste" under Section 1004(27) of

RCRA, 42 U.S.C . § 6903(27) .

V. GENERAL PROVISIONS

4. Objectives of the Parties

a. The objectives of the Parties in entering into this

Consent Decree are: (1) to reimburse the United State s for Response

Costs that it has incurred and will incur to protect public health

or welfare or the environment from releases or threatened releases

of hazardous substances from the Malta Gulch Tailings.at the Site ,

( 2) to settle the Remaining Liabilities of Hecla at the Site , and

( 3) to resolve Hecla's claims and certain claims EPA may have

against the United State s for the Site .

b. With the settlement of "Remaining Liabilities" in

this Partial Consent Decree and the settlement of "Sitewide

Liabilities" in the Partial Consent Decree entered by this Court on

January 6, 1993, the Parties intend to resolve all of Hecla's

potential liabilities for the Sit e except for any liabilit y for

16
natural resource damages.

5. Commitments by Hecla

a. Should Hecla acquire any interest in real property

or mining claims within the Sit e in the future, Hecla shall notif y

the United States Counsel of Record of such acquisition.

b. Should Hecla undertake any operations within the

Site in the future which may result in a release or threat of

release of a hazardous substances, Hecla shall notif y the United

States* Counsel of Record of such operations.

c. Should Hecla acquire any interest in real property

or mining claims or undertake any operations within the Site , Hecla

shall comply with all applicable ROD requirements, including any

institutional controls, related to such property interest or claims

or operations.

d. In the event Hecla acquires any interest in real

property or mining claims within the Site , Hecla shall grant to EPA

and its authorized representatives or contractors, an unlimited and

irrevocable right of access to implement and ensure the

protectiveness of any response action EPA determines is necessary

and appropriate.

e. Nothin g contained in subparagraphs a., b., c. or d.

above shall be construed to release Hecla from any potential

liability which may result from Hecla's future acquisition of any

property interest located on the Sit e or for the release or threat

of release of hazardous substances as a result of any future

operations it conducts at the Site .

17
V I. REIMBURSEMENT OF RESPONS E COST S

6. Withi n 30 days of the effective date of this Consent

Decree, Hecla shall:

a. Pay to the United State s $516,000, in the form of a

certified check made payable to the Hazardous Substance Superfun d

and referencing CERCLA Number 08-29 and DOJ Case Number 8530422 in

reimbursement of Response.Costs for the Site. Hecla shall forward

the certified check to:

Mello n Bank E PA Region VIII Attn : Superfun d Accounting Post Offic e Box 360859M Pittsburgh, Pennsylvania 15225

Additionally , Hecla shall send copies of the check to:

Cost Recovery Program Manager, 8HWM-SR U.S . Environmental Protection Agency

999 18th Street , Suite 500 Denver, Colorado 80202-2466

Assistant Regional Counsel for the California Gulch Superfun d Site , 8RC U.S . Environmental Protection Agency

999 18th Street , Suite 500 Denver, Colorado 80202-2466

and Counsel of Record for the United States .

b. In the event that the payments required by Paragraph

6.a. above are not made within 30 days of the effective date of

this Consent Decree, Hecla shall pay interest on the unpaid balance

at the rate established pursuant to Sectio n 107 (a) of CERCLA, 42

U.S.C . § 9607(a) . The interest to be paid shall begin to accrue on

the effective date of the Consent Decree. Interest shall accrue at

t he rate specified through the date of Hecla's payment.

c. If Hecla fail s to make the payment required by, and

18
in accordance with subparagraph a. above, within 60 days after

entry of this Decree, then the United States covenant not to sue

found in Section VII (Covenants Not to Sue) may, in the United

States sole, unreviewable discretion, be deemed null and void.

d. Payments of interest made under this Paragraph shall

be in addition to such other remedies or sanctions available to the

United States by virtue of Hecla's failure to make timely payments

under this Section. If the United State s brings an action to

collect any payment under this Sectio n and prevails, within 30 days

of receipt of the Court' s Order or EPA' s demand for payment,

whichever is earlier, Hecla shall reimburse the United States for

a ll costs of such action, plus interest, including attorneys fees

in accordance with the procedures set forth in this Section .

7. Payments by the United State s

a. The United States has agreed to resolve its

potential liabilit y for Response Costs for the Malta Gulch Tailings

Impoundments portion of the Sit e by paying or causing $172,000 to

be transferred to the Hazardous Substances Superfund. The payment

shall be made in the followin g manner: within 60 days of the

effective date of this Decree, the United State s shall pay or cause

$100,000 to be transferred to the Hazardous Substances Superfund,

referencing CERCLA Number 08-29 and DOJ Case Number 8530422; and

within 1 year of the effective date of this Decree, the United

State s shall also pay or cause $72,000, plus interest, to be

transferred to the Hazardous Substances Superfund, referencing

CERCLA Number 08-29 and DOJ Case Number 8530422. Such payments

19
shall be transferred to:

Mellon Bank E PA Region VIII Attn : Superfun d Accounting Post Offic e Box 360859M Pittsburgh, Pennsylvania 15225

b. If payments required pursuant to Paragraph 7.a.

above are not received within 30 days of the date they are due, the

United States shall notif y EPA as to the cause of the delay, the

actions the United State s is undertaking to make payment, and the

anticipated schedule for payment. Based on this information, EPA,

in its sole, unreviewable discretion, extend the time for the

United States to make the payments required by Paragraph 7.a.

above.

c. Any requirement in this Consent Decree for the

payment or obligation of funds by the United State s shall be

subject to the availability of appropriated funds , and no provision

of this Consent Decree shall be interpreted as or constitute a

commitment or requirement that the United State s obligate or pay

funds in contravention of the Ant i-Deficienc y Act , 31 U.S.C .

§ 1341.

d. The United State s shall send notice to all parties

of the transfer or payment made to the Hazardous Substance

Superfun d pursuant to Paragraph 6.a.

8. Any failure by the United States to make the payments or

seek appropriations as required under Paragraphs 7. a. shall have no

impact on the amount of Hecla's payment under Paragraph 6.a. or any

other right or obligation of Hecla under this Consent Decree.

20
Likewise, any failure by Hecla to make such payment as required

under Paragraph 6.a. shall have no impact on the amount of United

States' s payment under Paragraph 7 or any other right or obligation

of the United States under this Consent Decree.

9. a. The payments made by Hecla and the United State s

pursuant to this Section shall be placed in a site-specifi c account

and used for performance of response actions at the Malta Gulch

Tailings Impoundments portion of the Site . The settlement amount

contained in the site-specific account shall be applied to Response

Cost s associated with the Malta Gulch Tailings Impoundments in the

followin g manner: $85,000 shall be designated to reimburse Past

Response Costs; $499,000 shall be designated for the performance of

the response action; and $104,000 shall be designated for O&M and

groundwater monitoring.

b. If, upon completion of the response action,

including O&M and groundwater monitoring, for the Malta Gulch

Tailings Impoundments selected in the Action Memorandum, the

amounts obtained in settlement under this Decree exceed the

Response Costs incurred by the United States for the Malta Gulch

Tailings Impoundments, EPA, in its sole unreviewable discretion,

may use the excess funds for the performance of response actions

elsewhere within the Sit e or may return the excess funds to the

general Hazardous Substance Superfund.

VII . COVENANTS NOT TO SUE

10. a. In consideration of the payment that will be made by

Hecla under the terms of the Consent Decree, and except as

21
specificall y provided in Paragraphs 13, 14, 15 and 16 of this

Section , the United State s covenants not to sue or to take

administrative action against Hecla pursuant to Sections 106 and

107 of CERCLA and Section 7003 of RCRA for its Remaining

Liabilities at the Site .

b. The United States covenant not to sue, as stated in

Paragraph 10.a. above, shall take effec t upon payment by Hecla of

the sum required in Sectio n VI (Reimbursement of Response Costs ) .

11. a. In consideration of the payments that will be made

by the United State s under the terms of this Consent Decree, and

except as specificall y provided in Paragraphs 13, 14, 15 and 16 of

this Decree, EPA covenants not to take administrative action

against the United States pursuant to Sections 106 and 107 of

CERCLA and Section 7003 of RCRA for reimbursement of Response Costs

f or the Malta Gulch Tailings Impoundments portion of the Site .

b. EPA's covenant not to sue, as stated in Paragraph

11.a. above, shall take effec t upon payment by the United State s of

the sum required in Section VI (Reimbursement of Response Costs ) .

12. a. In consideration for the United States covenant not

to sue contained in Paragraph 10 above, and except as provided in

subparagraph d. below, Hecla:

i. covenants not to sue any agency or

instrumentality of the United States , for any

claims related to the Site , except claims for

natural resource damages (includin g the cost

of assessing such damages), for amounts paid

22
pursuant to Section VI (Reimbursement of

Response Costs ) of this Consent Decree or

related to Remaining Liabilities as defined in

Section IV (Definitions) of this Consent

Decree.; and

ii. waives any claims or demands it may have

against the Hazardous Substance Superfun d

established by 26 U.S.C . § 9507, including but

not limited to, any claims pursuant to

Section s 106 (b) , 111 and 112 of CERCLA, 42

U.S.C . §§ 9606(b) , 9611 and 9612, or for any

other costs, damages or attorneys

1

 fees for

amounts paid pursuant to Section VI

(Reimbursement of Response Costs ) of this

Consent Decree or related to Remaining

Liabilities as defined in Section TV

(Definitions ) of this Consent Decree.

b. Hecla also waives any challenge it may have to the

response action selected in the EE/CA and the Action Memorandum for

t he Malta Gulch Tailings Impoundments portion of the Site . Hecla

further waives any challenge it may have to any other Action

Memorandum or ROD selecting a response action at the Site;

provided, however, that Hecla retains any challenge it may have to

any Action Memorandum or ROD, in whole or in part, which is at

issue as a result of the United States invocation of the PreCertificatio n or Post-Certificatio n Reservations contained in

23
Paragraph 13 or 14 /against Hecla.

c. Hecla's covenant not to sue, as stated in Paragraph

12.a. above, shall take effec t upon the effective date of this

Decree.

d. Hecla reserves any cause of action or claim it may

have under CERCLA Sections 107 or 113, 42 U.S.C . §§ 9607 or 9613,

against any agency or instrumentality of the United State s in the

event the United State s asserts a claim against Hecla .pursuant to

the provisions of Paragraph 13 or 14 of this Consent Decree, so

long as Hecla's claim relates to or is based upon the claim

asserted against Hecla by the United State s under Paragraph 13 or

14.

13. Pre-Certificatio n Reservations

Notwithstandin g any other provision of this Decree, the United

States reserves the right to institute proceedings in this action

or in a new action seeking to compel Hecla and EPA reserves the

right to seek to compel the United State s (1) to perform additional

response actions at the Malta Gulch Tailings Impoundments portion

of the Site , and (2) to reimburse the United State s for response

costs incurred after the issuance of the ROD, if after the issuance

of the ROD but prior to EPA's certification of the completion of

the remedial action at the Malta Gulch Tailings Impoundments

portion of the Site:

a. conditions at the Malta Gulch Tailings

Impoundments portion of the Site , previously

unknown to the United States , are discovered,

24
or

b. information is received, in whole or in

part,

and these previously unknown conditions or this information

indicate, together with any other relevant information, that the

remedial action for the Malta Gulch Tailings Impoundments portion

of the Sit e will not be protective of human health or the

environment.

14. Post-Certificatio n Reservations

Notwithstandin g any other provision of this Decree, the United

State s reserves the right to institute proceedings in this action

or in a new action seeking to compel Hecla and EPA reserves the

right to seek to compel the United State s (1) to perform additional

response actions at the Malta Gulch Tailings Impoundments portion

of the Site , and (2) to reimburse the United States for response

costs incurred after the certificatio n of the completion of the

remedial action, i f after EPA' s certificatio n of the completion of

the remedial action at the Malta Gulch Tailings Impoundments

portion of the Site:

a. conditions at the Malta Gulch Tailings

Impoundments portion of the Site , previously

unknown to the United States , are discovered,

or

b. information is received, in whole or in

part,

and these previously unknown conditions or this information

25
indicate, together with any other relevant information, that the

remedial action for the Malta Gulch Tailings Impoundments portion

of the Site is not protective of human health or the environment.

15. General reservations of rights.

The covenants not to sue set forth above do not pertain to any

matters other than those expressly specified in Paragraphs 10 and

11-

a. With regard to Hecla and except as provided in the

"Sitewide Liabilities" Partial Consent Decree between the United

State s and Hecla entered by this Court on January 6, 1993, the

r

United State s reserves, and this Consent Decree is without

prejudice to, all rights with respect to all other matters,

including but not limited to, the following:

( 1) claims based on a failure by Hecla to meet a

requirement of this Consent Decree;

( 2) liabilit y of Hecla arising from the past , present,

or future disposal , release, or threat of release of

Waste Materials outside of the Sit e as herein defined;

( 3) liabilit y for costs and damages (including the costs

of assessing such damages) for injury to, destruction of,

or loss of natural resources;

( 4) liability for disposal by Hecla of hazardous

substances within the Sit e after the effective date of

this Consent Decree; and

( 5) criminal liability .

b. With regard to the United States , EPA reserves, and

26
this Consent Decree is without prejudice to, all rights with

respect to all other matters, including but not limited to, the

following:

(1) claims based on a failure by the United States to

meet a requirement of this Consent Decree; and

( 2) liability of the United States arising from the

past , present, or future disposal , release, or threat of

release of Waste Materials outside of the Malta Gulch

Tailings Impoundments as herein defined,

c. With regard to the United States , the federal

natural resource damages trustee reserves, and this Consent Decree

is without prejudice to, all rights with respect to all other

matters, including but not limited to, liabilit y for costs and

damages (including the costs of assessing such damages) for injury

to, destruction of, or loss of natural resources.

1 6. New Liabilit y Informatio n Reopener

a. Thi s Consent Decree is entered into based upon the

fact s currently known to the United State s regarding the nature and

extent of Hecla and Ore & Chemical' s operations and related

activities as provided in their respective CERCLA Section 104(e)

responses or other information and material provided to EPA and the

Department of Justice Environmental Enforcement Section during

discovery in this case. Thi s factual information is contained in

EPA's administrative record and Site file , and subject to the

limitations and objections stated in their respective CERCLA

Section 104(e) responses or other correspondence and

27
communications, are true, accurate and complete to the best of

Hecla and the United States knowledge.

b. If subsequent to the entry of this Consent Decree,

E PA establishes fact s which materially contradict the fact s upon

which this Consent Decree is based, EPA shall notif y the party that

is the subject of these newly discovered fact s of the discovery of

such facts . EPA shall provide Hecla or the United State s with a

reasonable opportunity to discuss with EPA and, as appropriate the

Settlemen t Master appointed in this case, the fact s in question and

the implications of those fact s relative to this Consent Decree and

the further negotiations, if any, of the parties. Thi s required

notice and opportunity to confer shall be made available to Hecla

or the United State s by EPA prior to the initiation of any

proceeding relating to such fact s in this Court or the undertaking

of any other administrative or judicial action against Hecla or the

United States . So long as EPA's actions are consistent with the

Consent Decree, Hecla or the United State s shall not contest EPA's

absolute right to initiate such a proceeding.

c. In the event EPA initiates any new proceeding

(judicial or administrative) against Hecla or the United State s

for recovery of additional response costs or performance of

additional response action as a result of the newly discovered

fact s which materially contradict the fact s upon which the Consent

Decree is based, this Consent Decree will terminate.

d. The Parties agree that the running of the remaining

period of limitations, if any, provided for by 42 U.S.C .

28
§ 9613(g)(2) , or any other period of limitation which would

otherwise bar: (!) any civil claim or cause of action by the

United State s against Hecla for Remaining Liabilities , or (2) any

administrative claim by EPA against the United State s for claims

related to the Malta Gulch Tailings Impoundments, or (3) any civil

claim or cause of action by Hecla against the United State s for the

Sit e shall be tolled for the period commencing from the date of

entry of this Consent Decree up to the date EPA provides written

notice of the new fact s or information pursuant to subparagraph b.

e. In the event EPA initiates a new proceeding against

Hecla or the United State s pursuant to this Paragraph, the party

that is subject to the new proceeding shall be credited for the

amounts paid to the Hazardous Substances Superfun d under Section VI

(Reimbursement of Response Costs ) of this Consent Decree. Further,

in the event EPA initiated a new proceeding against Hecla pursuant

to this Paragraph, the United States covenant not to sue Hecla

contained in Paragraph 10 shall be void. In the event EPA

initiates a new proceeding against the United States , EPA' s

covenant not to sue the United State s contained in Paragraph 11 and

Hecla's covenant not to sue the United State s contained in

Paragraph 12 shall be void.

VIII. EFFEC T OF SETTLEMENT t CONTRIBUTION PROTECTION

17. Nothin g in this Consent Decree shall be construed to

create any rights in, or grant any cause of action to, any person

not a party to this Consent Decree. The preceding sentence shall

not be construed to waive or nullif y any rights that any person not

29
a signatory to this decree may have under applicable law. Except

as provided elsewhere in this Decree, each of the Parties expressly

reserves any and all rights (including,, but not limited to, any

right to contribution), defenses , claims, demands, and causes of

action which each party may have with respect to any matter,

transaction, or occurrence relating in any way to the Sit e against

any person not a party hereto.

18. a. With respect to claims for contribution against

Hecla, the Parties hereby agree for "matters addressed" as to Hecla

in this Consent Decree, Hecla is entitled to such protection from

contribution actions or claims as is provided by Section 113 (f) (2)

of CERCLA, 42 U.S.C . § 9613(f)(2) . Such protection is conditioned

upon Hecla's compliance with the requirements of this Consent

Decree.

b. Except as specificall y reserved in this Decree,

including Section VII, "matters addressed" is defined as Hecla1s

Remaining Liabilities under Section s 106, 107 or 113 of CERCLA, 42

U.S.C . §§ 9606, 9607 or 9613 or Section 7003 of RCRA, 42 U.S.C . §

6973.

19. a. With respect to claims for contribution against the

United States, , the Parties hereby agree for "matters addressed" as

to the United State s in this Consent Decree, the United State s is

entitled, as of the effective date of this Consent Decree, to such

protection from contribution actions or claims as is provided by

Sectio n 113(f)(2 ) o f CERCLA, 42 U.S.C . §9613(f)(2) . Such

protection is conditioned upon the United States compliance with

30
the requirements of this Consent Decree.

b. Except as specificall y reserved in this Decree,

including Section VII, "matters addressed" is defined as any

potential liabilit y the United State s may have for the Malta Gulch

Tailings Impoundments portion of the Sit e under Sections 106, 107

or 113 of CERCLA, 42 U.S.C . §§ 9606, 9607 or 9613 or Section 7003

of RCRA, 42 U.S.C . §6973. The "matters addressed" does not include

any area beyond the Malta Gulch Tailings Impoundments portion of

the Site and natural resource damages.

20. Hecla agrees that with respect to any suit or claim for

contribution brought or settlement entered into by it for matters

related to this Consent Decree, Hecla will notif y the United State s

in writing no later than 60 days prior to the initiation of such

suit or claim.

21. Hecla also agrees that with respect to any suit or claim

for contribution brought against it for matters related to this

Consent Decree, Hecla will notif y in writing the United State s

within 10 days of service of the complaint on it. In addition,

Hecla shall notif y the United State s within 10 days of service or

receipt of any Motion for Summary Judgment and within 10 days of

receipt of any order from a court setting a case for trial.

22. In any subsequent administrative or judicial proceeding

initiated by the United States for injunctive relief , recovery of

response costs, or other appropriate relief relating to the Site , Hecla shall not assert, and may not maintain, any defense or claim

based upon the principles of waiver, res judicata. collateral

31
estoppel , issue preclusion, claim-splitting, or other defenses

based upon any contention that the claims raised by the United

State s in the subsequent proceeding were or should have been

brought in the instant case; provided, however, that nothing in

this Paragraph affect s the enforceability of the covenants not to

s ue set forth in Section VII (Covenants Not to Sue) .

I X . EFFECTIV E DATE

23. The effective date of this Consent Decree shall be the

date upon which this Consent Decree is entered by the Court.

X. SUPERSESSION OP PRIOR ORDERS

24. Upon payment of the settlement amount by Hecla required

in Paragraph 6, Section VI (Reimbursement of Response Costs) , all

prior Administrative Orders issued to or entered into by Hecla for

the Site , including the AOC and UAO, shall be superseded by this

Consent Decree.

X I. RETENTION OF JURISDICTION

25. Thi s Court retains jurisdictio n over both the subject

matter of this Consent Decree and the Parties for the duration of

the performance of the terms and provisions of this Consent Decree

for the purpose of enabling any of the Parties to appl y to the

Court at any time for such further order, direction, and relief as

may be necessary or appropriate for the construction or

modificatio n of this Consent Decree, or to effectuat e or enforce

compliance with its terms.

XII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

26. Thi s Consent Decree shall be lodged with the Court for a

32
period of not less than thirty (30) days for public notice and

comment in accordance with Section 122 (d) (2) of CERCLA, 42 U.S.C .

§ 9622 (d) (2) , and 28 C.F.R . § 50.7. The United States reserves the

right to withdraw or withhold its consent if the comments regarding

the Consent Decree disclose fact s or considerations which indicate

that the Consent Decree is inappropriate, improper, inadequate or

not in the public interest. Hecla consents to the entry of this

Consent Decree in the form executed by the Parties hereto without

further notice.

27. If for any reason the Court should decline to approve

this Consent Decree in the form presented, this agreement is

voidable at the sole discretion of any party and the terms of the

agreement may not be used as evidence in any litigation between the

Parties.

XIII. COSTS OF SUIT AND ENFORCEMENT

28. Each Party shall bear its own costs and attorneys fees

incurred in connection with this action.

XIV . SIGNATORIES/SERVIC E

29. The undersigned representative of Hecla and the Assistant

Attorney General for Environment and Natural Resources of the

Department of Justice each certifies that he or she is full y

authorized to enter into the terms and conditions of this Consent

Decree and to execute and legally bind such party to this document.

30. Hecla hereby agrees not to oppose entry of this Consent

Decree by this Court or to challenge any provision of this Consent

Decree unless the United States has notified Hecla in writing that

33
it no longer supports entry of the Consent Decree.

31. Hecla shall identify , on the attached signature page, the

name, address and telephone number of an agent who is authorized to

accept service of process by mail on behalf of that party with

respect to all matters arising under or relating to this Consent

Decree. Hecla hereby agrees to accept service in that manner and

to waive the formal service requirements set forth in Rule 4 of the

Federal Rules of Civil Procedure and any applicable local rules of

this Court, including, but not limited to, service of a summons.

SO ORDERED THIS _______ DAY OF ___________, 19_.

J IM R. CARRIGAN United State s District Judge

34
T HE UNDERSIGNED PARTIES enter into this Consent Decree in the

matter of United States v. Apache Energy & Minerals. Inc..

relating to the California Gulch Superfun d Site.

F OR THE UNITED STATES OF AMERICA

Date: / J . SCHlFFER , Actin g As/sistan t Attorney General Environment and Natural Resources Division U.S . Department of Justic e Washington, D.C. 20530

Date: __________ __________________ __ Attorney Environmental Enforcement Section Environment and Natural Resources Division U.S . Department of Justice

999 18th Street , Suite 945 North Denver, Colorado 80202-2405

Date: ______ GARY fcUBIN, Atfy&rtfe y Environmental Defense Section Environment and Natural Resources Division U.S . Department of Justice

9 99 18th Street , Suite 945 North Denver, Colorado 80202-2405

35
Date:

JAMES R. ALLISON United States Attorney District of Colorado

WILLIAM J . PHAR O Chief , Civil Division Assistant United State s Attorney

1961 Stout Street Suite 1200 Denver, Colorado 80294

Date:

 2

Date:

WILLIAM P. YELLOWTAIL ' Regional Administrator United States Environmental Protection Agency -- Region VIII

9 99 18th Street , Suite 500 Denver, Colorado 80202-2405

^U~JL sg- > var <~^-o^^-^~ -

T HC Regi'onal Counsel United States Environmental Protection Agency -- Region VIII

999 18th Street , Suite 500 Denver, Colorado 80202-2405

Date: NANCY/ y MANGO1 Seniok/Attorney^

United States Environmental Protection Agency -- Region VIII

999 18th Street , Suite 500 Denver, Colorado 80202-2405

36
Date: STEVEN A. HERMAN Assistant Administrator for Enforcement United State s Environmental Protection Agency

4 01 M Street , S.W. Washington, D.C. 20460

37
T HE UNDERSIGNED PARTIES enter into this Consent Decree in the

matter of United State s v. Apache Energy & Minerals. Inc. .

relating to the California Gulch Superfun d Site .

F OR HECLA MINING COMPANY

MICHAEL B. WHITE Vice President - General Counsel Hecla Mining Company

6500 Mineral Drive Box C-8000 Coeur d'Alene , Idaho 83814-1931

Date:

msel of Record for Hecla Mining Company Ballard, Spahr, Andrews & Ingersol l

1225 17th Street , Suite 2300 Denver, Colorado 80202

Agent Authorized to Accept Service on Behalf of Above-signed Party:

CT Corporation

1600 Broadway Denver, Colorado 80201

(303 ) 839-1705

38
O) oCM§CO

4

LEGEND

HISTORI C SMELTER LOCATIONS

MINE DRAINAGE TUNNEL

SURFACE WATER DRAINAGE RI/FS STUDY AREA

AREAS CONTAINING FLUVIAL TAILING S

TAILIN G IMPOUNDMEN T

WASTE ROCK

SLAG

SITE FEATURES

1 - COLORADO ZINC LEAD TAILING

2 - HAMM*S MILL TAILING

J - OREGON GULCH TAILING IMPOUNDMENT 4 - APACHE TAILING IMPOUNDMENT 5 - MALTA GULCH TAILING IMPOUNDMENT 5 - LSG MILL TAILING 7 - ARKANSAS VALLEY SLAG 3 - LA PLATA SLAG 9 - HARR60N STREET SLAG 10 - PENROSE DUMP

INFORMATION SOURCES

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APPROVALS

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21S Union BoulM«d Sua.550 . CO ft^TTflt

(M3) 680-6BOO

CAUFORNIA GULCH NPL SIT E Leadville , Colorado

APPENDIX B

RI/F S STUDY AREA
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