DERR-2024-007875

BRETT L. TOLMAN (#8821), United States Attorney
DANIEL D. PRICE (#2646), Assistant United States Attorney
185 South State Street, Suite 300
Salt Lake City, UT 84111
[phone] (PHONE) [phone] (FAX)
[e-mail]
JEREL (“JERRY”) L. ELLINGTON (Pro hac vice)
Senior Counsel, Environmental Enforcement Section
United States Department of Justice
1961 Stout Street, 8th Floor
Denver, CO 80294
[phone] (PHONE) [phone] (FAX)
[e-mail]
Attorneys for the United States of America
MARK L. SHURTLEFF (#4666), Utah Attorney General
FRED G NELSON (#2383), Assistant Attorney General
160 East 300 S, 5th Floor
Salt Lake City, Utah 84114
[phone] (PHONE) [phone] (FAX)
[e-mail]
Attorneys for the State of Utah
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
UNITED STATES OF AMERICA, and
STATE OF UTAH,
Plaintiffs,
vs.
KENNECOTT UTAH COPPER
CORPORATION,
Defendant
Case No. 2:07-cv-00485-DAK
Judge Dale A. Kimball
MOTION TO ENTER AND APPROVE CONSENT DECREE
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The United States of America, on behalf of the U.S. Environmental Protection Agency
(“EPA”), and the State of Utah (the “State”), on behalf of the Utah Department of Environmental
Quality (“UDEQ”), (jointly the “Governments”), submit this Motion to Enter and Approve the
Consent Decree with Kennecott Utah Copper Corporation (“KUCC”) lodged with this Court on
July 9, 2007 (the “Decree”). This Motion is accompanied by a separate Memorandum and
supporting Exhibits.
1. The Decree requires KUCC to: (a) complete the remediation of an extensive
groundwater plume of contamination, comprising the Zone A portion of the area designated by
EPA as Operable Unit 2 (“OU2”) of the Kennecott South Zone Superfund Site (the “South Zone
Site”); (b) pay all EPA’s future costs associated with overseeing such work; and (c) reimburse all
remaining unpaid or previously uncompromised past response costs of the United States
associated with all operable units comprising both the South Zone Site and the related Kennecott
North Zone Superfund Site (“North Zone Site”), totaling slightly over $5 million.
2. EPA’s record of decision for OU2 that KUCC is required to implement by the
Decree does not require any further action to address a separate plume of contamination, known
as the “Zone B” plume, beyond that work being done by KUCC in settlement of the State’s
natural resource damage claim. The OU2 ROD also coordinated the CERCLA remedial action
addressing the Zone A plume with requirements of the settlement of the State’s NRD claim, and
ground water protection and UPDES discharge permits. The Decree reserves, and does not
settle, KUCC’s potential liability to take further CERCLA response actions to address the Zone
B plume and for matters now covered by applicable state permits.
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3. The United States published notice of the lodging of the present Decree in the
Federal Register on July 19, 2007, and solicited public comments. See 72 Fed. Reg. 39640. The
State additionally published notice in local newspapers and also solicited public comments on
the lodged Decree. EPA and UDEQ also held a public meeting on the Decree on August 29,
2007.
4. The Governments received numerous written and oral comments on the lodged
Decree. Many of the comments concern the implementation of the project undertaken by KUCC
to settle the State’s NRD claim, and the adequacy of State permits. Many commenters expressed
concern over the draw down of the aquifer, and that they were not receiving the benefits they
expected to receive by the State’s NRD settlement.
5. The accompanying Memorandum and supporting exhibits explain the steps that
have been taken by KUCC and the Utah State Engineer to manage the beneficial use of the
aquifer, and clarifies the overlap between the lodged Decree and the NRD project and how State
permit requirements are utilized by the CERCLA remedial action. All the comments are
summarized in the accompanying Memorandum, followed by a response to the comments.
6. In preparing their response to comments the Government’s realized that a citation
in the Decree to a section of the National Contingency Plan was outdated. That error is corrected
by a separate Joint Stipulation in the Consent Decree executed by counsel for all the parties and
is filed herewith.
WHEREFORE, for the reasons set forth above, in the accompanying Memorandum, and
with the correction made to the citation pursuant to the Joint Stipulation, the Governments
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respectfully request that the Court approve and enter the lodged Decree.
Respectfully submitted,
RONALD J. TENPAS
Assistant Attorney General
Environment and Natural Resources Division
/s/ Jerry Ellington
JEREL (“JERRY”) L. ELLINGTON
Senior Counsel
Environmental Enforcement Section
U.S. Department of Justice
1961 Stout Street, 8th Floor
Denver, CO 80294
[phone] (PHONE)
[phone] (FAX)
[e-mail]
BRETT L. TOLMAN
United States Attorney
District of Utah
DANIEL D. PRICE
Assistant United States Attorney
District of Utah
185 South State Street, Suite 400
Salt Lake City, UT 84111
[phone] (PHONE)
[phone] (FAX)
[e-mail]
Attorneys for the United States
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MARK L. SHURTLEFF (#4666)
Utah Attorney General
/s/ Fred G Nelson
(Signed by Filing Attorney with Permission)
FRED G NELSON (#2383)
Assistant Attorney General
160 East 300 S, 5th Floor
Salt Lake City, Utah 84114
[phone] (PHONE)
[phone] (FAX)
[e-mail]
Attorneys for the State of Utah
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CERTIFICATE OF SERVICE
I hereby certify that on April 17, 2008, a copy of the foregoing MOTION TO ENTER
AND APPROVE CONSENT DECREE was served on the following persons by the following
means:
1 - 2 CM/ECF
1 Hand Delivery
2- 4 Mail
_____ Overnight Delivery Service
_____ Fax
E-Mail
1. Clerk, U.S. District Court
2. Michael A. Zody
Parsons Behle & Latimer
One Utah Center
201 South Main Street, Suite 1800
Salt Lake City, UT 84111
Attorney for Defendant
3. Kenneth R. Barrett
Kennecott Utah Copper Corporation
8291 West 3595 South
Magna, UT 84044-6001
Attorney for Defendant
4. Stephen G Homer
2877 W 9150 S
West Jordan, UT 84088
Attorney for Thomas A. Belchak and Reynaldo B. Pinacate
/s/
JEREL (“JERRY”) L. ELLINGTON
Senior Counsel
Environmental Enforcement Section
U.S. Department of Justice
1961 Stout Street, 8th Floor
Denver, CO 80294