DERR-2024-005218

Sent via electronic mail
September 19, 2023
Jeffrey Mensinger
Environmental Manager
US Magnesium LLC
[e-mail]

Re: Failure to Timely Submit Updated Cost Estimates
US Magnesium LLC Consent Decree (Case No. 2:01CV0040B)

Dear Mr. Mensinger:

As required by Paragraphs 16 and 47 and Appendix 13 of the above-mentioned Consent Decree (CD),
US Magnesium LLC (USM) submission of updated Cost Estimates for both the CERCLA Response
Action and the Closure and Post-Closure of the Retrofitted Waste Pond (i.e., Salt Cap Closure Plan) are
due 60 days prior to the Anniversary Date of establishment of the relevant Financial Mechanism. As
Paragraphs 49(a)(1) & (2) of the CD approved EPA Special Account funds as satisfying Financial
Assurance (FA) requirements at the date of entry of the CD, the June 30, 2021 Effective Date of the CD
also serves as the Anniversary Date for the Financial Mechanism(s) required as FA. Therefore, annual
updated Cost Estimates were due to EPA on May 2, 2022 and again on May 2, 2023.

However, since the Effective Date of the CD, USM has failed to submit any updated Cost Estimate to
EPA.

Note that Paragraph 68 of the CD allows for accrual of stipulated penalties, per violation and per day,
for violations of Section X (re: FA) of the CD, of up to $3,000 per day for days 1 to 14 of noncomliance,
$4,000 per days for days 15 to 30 of noncompliance, and $5,000 per day for every day of
noncompliance thereafter.

Further note that upon EPA approval of a USM-submitted updated Cost Estimate, USM then has 60
days (CERCLA Response Action) and 90 days (Closure and Post-Closure of the Retrofitted Waste
Pond) to adjust Financial Mechanisms to provide FA that reflects the updated Cost Estimates.

Also, Appendix 4(A) of the CD requires that “[w]ithin sixty (60) Days of the Effective Date of the
Consent Decree, US Mag will execute the USEPA-accepted Conditional Partial Assignment and Grant
of Rights…. In an Event of Default as defined in Appendix G, it is the intent of the Parties to ensure that
USEPA will have access to the necessary resources to implement the Salt Cap Closure Plan….” Now
over two years since the Effective Date of the CD, USM has still not executed the Conditional Partial
Assignment and Grant of Rights.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 8
1595 Wynkoop Street
Denver, CO 80202-1129
Phone [phone]
www.epa.gov/region08

For questions regarding this letter, please contact Annette Maxwell of my office at [phone] or
[e-mail], or EPA counsel, Max Greenblum, at [phone] or
[e-mail].

Sincerely,

Janice A. Pearson, Manager
RCRA & OPA Enforcement Branch
Enforcement and Compliance Assurance Division

Cc: Max Greenblum, EPA
Annette Maxwell, EPA
Michael A. Zody, Parsons Behle & Latimer