2011-15014. Notice of Lodging of Consent Decree Under the Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, and the Clean Water Act

In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that on June 13, 2011, a proposed consent decree was lodged with the United States District Court for the District of Idaho in United States of America et al. v. Hecla Limited, Civil Action No. 96-0122-N-EJL (D. Idaho), and two consolidated cases (Civil Action Nos. 91-0342-N-EJL and 94-0206-N-HLR). The proposed Consent Decree settles claims of the United States, the Coeur d'Alene Tribe, and the State of Idaho against Hecla Limited, Hecla Mining Company, Hecla Silver Valley, Inc., HLT, Inc., and Silver Hunter Mining Company for response costs and natural resource damages stemming from certain releases of hazardous substances from historic mining and mining-related operations at the Bunker Hill Mining and Metallurgical Complex Superfund Site. The Site is generally located in the Coeur d'Alene Basin watershed in Idaho.

The lawsuit seeks damages for injuries to natural resources such as fish and birds caused by millions of tons of mining wastes that had been released into the South Fork of the Coeur d'Alene River and its tributaries. The United States Environmental Protection Agency has been performing cleanup work in the Coeur d'Alene Basin since the early 1980s, and the suit also seeks reimbursement of EPA's cleanup costs.

Most of the defendants settled before trial. After a 78-day trial, the district court in Idaho ruled in 2003 that the remaining defendants, Hecla and ASARCO, had liability for natural resource damages and response costs and that the amount of their liability would be determined in a second phase of litigation. The litigation in the district court in Idaho was stayed in 2005 when ASARCO filed a petition for reorganization under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Texas. ASARCO reached settlement with the United States in 2008, and paid the settlement amounts in full after the bankruptcy court in Texas approved ASARCO's plan of reorganization. Accordingly, the federal district court in Idaho dismissed the claims against ASARCO on September 8, 2010. The court also postponed the second phase of the trial against Hecla to allow time to negotiate a settlement. Hecla is the only remaining defendant.

Among other things, the proposed consent decree will require Hecla to pay $263.4 million plus interest to the United States, the Coeur d'Alene Tribe, and the State. Of that total, about $180 million would go toward the United States' past response costs and future response actions to address the mining waste being remediated by EPA; $60 million would go toward natural resources damages for joint federal/state/tribal resources, including the United States Department of the Interior and the United States Department of Agriculture; $17 million would go toward satisfying Hecla's remaining obligations under an earlier consent decree to fund response actions for part of the Site; $4 million would go toward the Tribe's past costs; and $2 million would go toward a State/Tribe management plan for Lake Couer d'Alene.

Those payments are within Hecla's financial means. A settlement based purely on litigation concerns would have been beyond Hecla's ability to fund and remain financially viable. The settlement process involved an in-depth review by the United States' mining and financial experts of Hecla's finances, including proprietary and confidential internal financial information. That review determined that Hecla could not fully pay its alleged liability. The payments to be made by Hecla under the proposed Consent Decree therefore reflect Hecla's ability to pay, given Hecla's financial condition, the highly volatile nature of metal prices, and the fact that Hecla's profitability is extremely sensitive to those metals' prices.

The settlement also includes a process for coordinating Hecla's future mining operations with EPA's cleanup activities in the Couer d'Alene Basin. These provisions are designed to avoid and minimize potential conflicts between cleanup activities and mining operations wherever possible. The proposed consent decree includes a covenant not to sue by the United States under Sections 106 and 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9606 & 9607(a); Section 7003 of the Resource Conservation and Recovery Act, 42 U.S.C. 6973; and Sections 309, 311 and 504 of the Clean Water Act, 33 U.S.C. 1319, 1321 & 1364.

For 30 days after the date of this publication, the Department of Justice will receive comments relating to the proposed consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to [e-mail] or mailed to P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to United States v. Hecla Limited, DJ Reference Nos. 90-11-3-128L. Commenters may request an opportunity for a public meeting in the affected area, in accordance with Section 7003(d) of RCRA, 42 U.S.C. 6973(d).

The proposed consent decree may be examined at the Office of the United States Attorney for the District of Idaho, Washington Group Plaza IV, 800 Park Blvd., Suite 600, Boise, ID 83712. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site: http://www.usdoj.gov/​enrd/​Consent_​Decrees.html. A copy of the proposed consent decree may be obtained by mailing a request to the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611. When requesting a copy by mail, please enclose a check payable to the U.S. Treasury in the amount of $65.50 for the complete consent decree or $16.50 for the consent decree without the appendices (25 cents per page reproduction cost). A copy may also be obtained by faxing or e-mailing a request to Tonia Fleetwood, [e-mail], fax number [phone], phone confirmation number [phone], and sending a check to the Consent Decree Library at the stated address.

Robert E. Maher, Jr.,

Assistant Section Chief, Environmental Enforcement Section, Environment and Natural Resources Division.