Kennecott Holdings Corporation (McLaren Tailings Site) (Board decision, June 19, 1997)

Plain-English summary

Kennecott Holdings Corporation and EPA Region VIII reported that they had settled the claims related to Kennecott's CERCLA reimbursement petition and a separate EPA demand for response costs. The settlement was embodied in a consent decree entered by the United States District Court for the District of Montana on June 9, 1997. The parties told the EAB that the consent decree did not involve a disbursement under CERCLA section 106(b). The Board granted the stipulated motion and dismissed Kennecott's reimbursement petition with prejudice.

Decision snapshot

• Cited authorities: CERCLA § 106(b), including 42 U.S.C. §§ 9606(b) and 9606(b)(2).
• Outcome: Procedural. The reimbursement petition was dismissed with prejudice after settlement.
• Key point: A federal consent decree resolving related claims led the EAB to dismiss the CERCLA reimbursement petition without a Superfund disbursement.

Full text (EPA EAB public release)

BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C.

)
In re: )
)
Kennecott Holdings )CERCLA §106(b) Petition No. 94-23
Corporation
)
(McLaren Tailings Site) )
)

ORDER DISMISSING PETITION FOR REIMBURSEMENT WITH PREJUDICE

By motion filed on June 18, 1997, the parties in the above-

captioned matter, U.S. EPA Region VIII and Kennecott Holdings

Corporation, state as follows:

1. Since filing its Petition for Reimbursement with the EPA Environmental Appeals Board (EAB) on December 9, 1994, * * * EPA Region VIII and the Department of Justice on behalf of the United States of America, and Kennecott have engaged in lengthy negotiations to resolve the subject matter of Kennecott’s Petition for Reimbursement as well as a separate demand by EPA for payment of response costs.

2. The parties reached a settlement of each other’s claims, including the claims contained in the underlying Petition for Reimbursement, which is embodied in a Consent Decree initially lodged with the United States District Court for the District of Montana, Civil Action No. CV 97-39-BLG-JDS, on April 8, 1997.

3. Following a thirty (30) day public comment period, the court entered the Consent Decree on June 9, 1997.

4. Section VI, Paragraph 11 of the Consent Decree requires Kennecott, within twenty (20) days after entry of the Consent Decree, to withdraw with prejudice, its petition for reimbursement filed with the EAB on December 9, 1994 * * *.
Stipulated Motion to Withdraw Petition for Reimbursement at 1.

The parties have also stated that the settlement between the

parties embodied in the Consent Decree does not involve any

disbursement of any funds pursuant to the authority of CERCLA §

106(b). See Joint Status Report (May 9, 1997).

Under the circumstances, the parties’ stipulated motion is

granted. Kennecott’s Petition for Reimbursement filed with the

Board on December 9, 1994, is hereby dismissed with prejudice.

So ordered.

Dated: 6/19/97
ENVIRONMENTAL APPEALS BOARD

By: /s/
Ronald L. McCallum
Environmental Appeals Judge
 CERTIFICATE OF SERVICE

I hereby certify that copies of the forgoing Order Dismissing Petition for Reimbursement with Prejudice in the matter of Kennecott Holdings Corporation, CERCLA § 106(b) Petition No. 94-23, were sent to the following persons in the manner indicated:

First Class Mail
Postage Prepaid
and facsimile:

Marcelle Shoop
Associate General Counsel
Kennecott Services Company
8315 West 3595 South
P.O. Box 6001
Magna, UT 84044-6001
Fax # (801) 252-3559

Richard H. Baird
Enforcement Attorney
U.S. EPA, Region VIII
999 18th Street, Suite 500
Denver, CO 80202-2466
Fax # (303) 312-6859

Dated: 6/19/97
/s/
Mildred T. Johnson
Secretary