Notice of Lodging of Consent Decree Pursuant to the Clean Water Act

DEPARTMENT OF JUSTICE

Notice of Lodging of Consent Decree Pursuant to the Clean Water

Act

In accordance with Department of Justice policy, 28 C.F.R.

Sec. 50.7 notice is hereby given that on April 28, 1995, a proposed

consent decree in United States v. Blackbird Mining Co., et al., and

State of Idaho, et al. v. The M.A. Hanna Company, Consolidated Case No.

83-4179 (D. Idaho), was lodged with the United States District Court

for the District of Idaho. The consent decree resolves claims against

the M.A. Hanna Company, Hanna Services Company, Noranda Mining Inc.,

Noranda Exploration, Inc., Blackbird Mining Company Limited

Partnership, and Alumet Corporation pursuant to the Comprehensive

Environmental Response, Compensation and Liability Act of 1980, as

amended (``CERCLA''), 42 U.S.C. 9601, et seq., and against the M.A.

Hanna Company, Hanna Services Company, Noranda Mining Inc., Noranda

Exploration, Inc., Blackbird Mining Company Limited Partnership

pursuant to the Federal Water Pollution Control Act (Clean Water Act,

or ``CWA''), 33 U.S.C. 1251 et seq., and the Endangered Species Act

(``ESA''), 16 U.S.C. 1531 et seq., to accomplish the clean up of the

contamination and restoration of the natural resources at the Blackbird

Mine in central Idaho and for the recovery of past and future response

costs. The United States' claims were filed in June 1993 against the

past and current owners and operators of the mine on behalf of the

Forest Service and NOAA acting as natural resource trustees and on

behalf of the EPA. The United States case was consolidated with a case

filed by the State of Idaho in 1983 against most of the same parties.

This settlement is a joint coordinated plan developed by the

Governments', in consultation and cooperation with the Settling

Defendants, for the restoration and replacement of the injured natural

resources at the site. The major provisions of the Consent Decree (CD)

consist of cash payments to the Governments, implementation of a

Biological Restoration and Compensation Plan (BRCP) that is filed with

the Consent Decree, and a commitment to clean up the site pursuant to a

series of Response Actions and implementation of the final remedy

selected by EPA under the CERCLA remediation process. Specifically, the

Consent Decree provides as follows:

A. Cash payments

(1) Cash payment at time of entry to the Natural Resource Trustees

(NOAA, USDA Forest Service, and Idaho) of $4.7 million which was

expended on the Natural Resource Damage Assessment,

(2) Payment of $328,742 to EPA, NOAA and USDA for past response

costs, and

(3) Payment of $2.5 million into a trust fund for implementation of

the Hatchery Component of the BRCP.

B. Natural Resource/Biological Restoration and Compensation Plan

This portion of the Settlement commits the Defendants to implement

and pay for a two-part program to fully compensate the Natural

Resources Trustees for losses resulting from the injury or destruction

of natural resources--including the ``threatened'' spring/summer

chinook salmon--due to releases of hazardous substances from Blackbird

Mine. The proposed projects are valued by the Trustees at approximately

$17 million, and include restoration as well as compensation for

``interim'' losses.

One part of the program, known as the ``Hatchery Operations

Program,'' consists of construction of fish hatchery facilities and

associated structures necessary to catch adult salmon brood stock,

raise the smolts and reintroduce them into Panther Creek (and possibly

other streams in the Salmon River Basin). These activities are not

intended to commence until 2005. The costs of these facilities is

approximately $2.5 million. This money is being placed in a trust fund

that may be withdrawn by the Trustees and used for alternative

restoration projects if the Trustees for any reason determine not to

implement the proposed Hatchery Program.

The second part of the BRCP is referred to as the ``Smolt Survival

Plan''. This habitat improvement program commits the Defendants to

realign approximately 1.2 miles of degraded salmon rearing habitat in

Panther Creek and maintain protective barriers on this portion of the

stream for 100 years. The defendants are also required to exclude

cattle on 2 miles of valuable salmon rearing habitat in Panther Creek,

and on an additional 8 miles on other streams to be identified and

selected elsewhere in the Salmon River Basin. The cattle exclusion

measures must be maintained for 50 years. Defendants will also

construct at least 2 acres of off channel rearing ponds for juvenile

salmon.

Defendants will pay all planning costs, monitoring costs and up to

$2 million for Trustee oversight costs, and comply with NEPA, ESA and

other permitting requirements. The BRCP monitoring program is a complex

technical/scientific program designed to insure appropriate water

quality that will support all life stages of salmonids and the

continued health of the ecosystem.

The BRCP commits the Defendants to restore water quality so that

the Hatchery Operation plan may begin by 2005. If this is not achieved,

Defendants are subject at the Governments' discretion to: specific

performance, and/or liquidated damages of $25,000 for each month that

the hatchery operation is delayed or interrupted because of failure to

meet the water quality standard, or the reopening of the lawsuit. The

water quality standard is based on EPA's ambient water quality for both

chronic and acute toxicity for copper.

The Consent Decree also commits the Defendants to remediate the

site pursuant to early Response Actions and a ROD under the EPA CERCLA

process. There are specific performance provisions, stipulated

penalties, and a reopener to assure full remediation of the site. The

Defendants finally commit to pay the Government's future response

costs. [[Page 25251]]

The Department of Justice will receive comments relating to the

proposed consent decree for a period of thirty (30) days from the date

of this publication. Comments should be addressed to the Assistant

Attorney General, Environment and Natural Resources Division,

Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington,

D.C. 20044, and refer to United States v. Blackbird Mining Co., et al.,

and State of Idaho, et al. v. The M.A. Hanna Company, DOJ number 90-11-

2-816.

Copies of the proposed consent decree may be examined at the Office

of the Attorney General, Chief Natural Resources Division, 700 W.

Jefferson, Ste. 210, Boise, Idaho; Office of the United States

Attorney, 877 W. Main St., Ste. 201, Boise, Idaho; and the Consent

Decree Library, 1120 G Street NW., 4th Floor, Washington, D.C. 20005,

(202) 624-0892. A copy of the proposed consent decree may be obtained

by mail or in person from the Consent Decree Library. When requesting a

copy of the consent decree, please enclose a check in the amount of

$22.75 (25 cents per page reproduction costs) payable to the ``Consent

Decree Library''. When requesting a copy please refer to United States

v. Blackbird Mining Co., et al., and State of Idaho, et al. v. The M.A.

Hanna Company, Consolidated Case No. 83-4179 (D. Idaho), DOJ Case

number 90-11-2-816.

Copies of reports which were relied upon by the United States and

the State of Idaho in entering into the consent decree are available

for inspection at the Office of the United States Attorney, 877 W. Main

St., Ste. 201, Boise, Idaho.

Joel Gross,

Acting Chief, Environmental Enforcement Section, Environment and

Natural Resources Division.

[FR Doc. 95-11573 Filed 5-10-95; 8:45 am]

BILLING CODE 4410-01-M