SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: January 16, 1996
PUBLICKER INDUSTRIES INC.
(Exact name of registrant as specified in its
charter)
Pennsylvania
(State of incorporation)
1-3315
23-0991870
(Commission file number) (I.R.S.
Employer Identification No.)
1445 East Putnam Avenue
Old Greenwich, Connecticut 06870
(Address of principal executive offices)
(Zip code)
(203) 637-4500
(Registrant's telephone number, including area
code)
<PAGE>
Item 5. Other Events
(a) Publicker Industries Inc. announced on
January 10, 1996 that a
Consent
Decree, which embodies the terms of a
settlement of litigation
between the
Company and the U.S. Environmental
Protection Agency (the "EPA")
and
the Pennsylvania Department of
Environmental Protection
("PADEP"), has
been lodged with the United States District
Court, Eastern District of
Pennsylvania. The lodged Consent Decree,
which has been executed
by the
EPA, the U.S. Department of Justice, PADEP,
and Publicker, is
expected to
become final upon entry by the Court, which
may take several
months.
The settlement provides for payments
totaling $14,350,000, plus
interest, to
the EPA and PADEP over a six year period.
In April 1995, the
Company
deposited $4,500,000 with the Court as
payment of a portion of the
settlement. In 1993, the Company recorded
a charge of $14,350,000
to cover
this settlement.
Item 7. Financial Statements and Exhibits
The following Exhibits are filed as part of this report:
28.1 Consent Decree lodged with the United
States District Court,
Eastern District
of Pennsylvania on December 28, 1995 to
settle Civil Action No.
90-7984,
United States of America and Commonwealth
of Pennsylvania,
plaintiffs,
versus Publicker Industries Inc., Cuyahoga
Wrecking Corporation,
Overland
Corporation and American Cryogas
Industries, Inc.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the
registrant has duly caused
this report to be signed on its behalf by the undersigned
hereunto duly
authorized.
PUBLICKER
INDUSTRIES INC.
By
Antonio L.
DeLise
Vice
President,
Chief
Financial Officer
and Secretary
Dated: January 16, 1996
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the
registrant has duly caused
this report to be signed on its behalf by the undersigned
hereunto duly
authorized.
PUBLICKER
INDUSTRIES INC.
/s/Antonio L.
DeLise
Antonio L. DeLise
Vice President,
Chief Financial
Officer
and Secretary
Dated: January 16, 1996
<PAGE>
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
COMMONWEALTH OF PENNSYLVANIA, )
)
Plaintiff-Intervenor )October 10, 1995 Final
)
v. )Civil Action No.
90-7984
)
PUBLICKER INDUSTRIES INC., )
CUYAHOGA WRECKING CORPORATION, )
OVERLAND CORPORATION, )
AMERICAN CRYOGAS INDUSTRIES, INC. )
)
Defendants. )
___________________________________)
PARTIAL CONSENT DECREE
TABLE OF CONTENTS
I. BACKGROUND 1
II. JURISDICTION 5
III. PARTIES BOUND 6
IV. DEFINITIONS 6
V. REIMBURSEMENT OF RESPONSE COSTS AND PAYMENT
OF NATURAL RESOURCE DAMAGES TO THE UNITED
STATES BY SETTLING DEFENDANTS 11
VI. REIMBURSEMENT OF RESPONSE COSTS AND PAYMENT
OF NATURAL RESOURCE DAMAGES TO THE
COMMONWEALTH BY SETTLING DEFENDANTS 23
VII. FAILURE TO MAKE TIMELY PAYMENTS 27
VIII. PAYMENT OF RESPONSE COSTS BY THE UNITED STATES
AS COUNTERCLAIM DEFENDANT 30
IX. COVENANTS NOT TO SUE BY THE UNITED STATES AND
THE COMMONWEALTH 32
X. COVENANT NOT TO SUE BY SETTLING DEFENDANTS 41
XI. EFFECT OF SETTLEMENT; CONTRIBUTION
PROTECTION 43
XII. ACCESS TO INFORMATION 49
XIII. RETENTION OF RECORDS 51
XIV. NOTICES 53
XV. EFFECTIVE DATE 55
XVI. RETENTION OF JURISDICTION 55
XVII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT 56
XVIII. SIGNATORIES 57
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
COMMONWEALTH OF PENNSYLVANIA, )
)
Plaintiff-Intervenor )
)
v. )Civil Action
No.90-7984
)
PUBLICKER INDUSTRIES INC., )
CUYAHOGA WRECKING CORPORATION, )
OVERLAND CORPORATION, )
AMERICAN CRYOGAS INDUSTRIES, INC. )
)
Defendants. )
___________________________________)
PARTIAL CONSENT DECREE
I. BACKGROUND
A. The United States of America ("United States"), by
authority of the Attorney General and at the request of
the
Administrator of the United States Environmental
Protection
Agency ("EPA"), filed a complaint in this action on
December 19,
1990 pursuant to Sections 107(a) and 113(g)(2) of the
Comprehensive Environmental Response, Compensation, and
Liability Act, as amended ("CERCLA"), 42 U.S.C.
9607(a),
9613(g)(2).
B. In its complaint, the United States sought, among
other
relief, reimbursement of response costs incurred by the
United
States at the Publicker Industries National Priorities
List
Superfund Site ("the Site"), located at or about 3223
South
Delaware Avenue in Philadelphia, Pennsylvania and a
declaratory
judgment as to liability for future response costs to be
incurred by the United States at the Site. The Site is
adjacent
to the Delaware River. The defendants named in the
United
States' original complaint were Publicker Industries Inc.
("Publicker"), Cuyahoga Wrecking Corporation, and
Overland
Corporation.
C. Sagrocry, Inc., formerly named American Cryogas
Industries,
Inc., formerly named Thermice Corporation ("ACI"), is a
subsidiary of Publicker. ACI operated an industrial
plant at
the Site from approximately 1928 to 1987. The United
States
alleges that hazardous substances were disposed of at the
Site
during the period in which ACI operated its industrial
plant at
the Site. On December 22, 1994, the United States filed
an
amended complaint in which it added ACI as a defendant in
this
action pursuant to Sections 107(a)(2) and 113(g)(2) of
CERCLA,
42 U.S.C. 9607(a)(2), 9613(g)(2).
D. Publicker has asserted a counterclaim against the
United
States pursuant to Section 107(a) and Section 113(f)(1)
of
CERCLA, 42 U.S.C. 9607(a), 9613(f)(1).
E. Pursuant to Section 107(f)(2)(A) of CERCLA, 42
U.S.C.
9607(f)(2)(A), the Secretary of Commerce and the
Secretary of
the Interior have been designated federal trustees for
certain
Natural Resources. See 40 C.F.R. 300.600(b). The
National
Oceanic and Atmospheric Administration ("NOAA") is a
component
of the U.S. Department of Commerce. NOAA and the U.S.
Department of the Interior ("DOI") have each determined
that
hazardous substances released from the Site have caused
damages
to Natural Resources for which the Secretary of Commerce
and the
Secretary of the Interior are trustees. Through the
entry of
this Consent Decree, the United States' complaint in this
action
is deemed to be amended to add a claim for Natural
Resource
Damages against Publicker and ACI under Section
107(a)(4)(C) and
107(f) of CERCLA, 42 U.S.C. 9607(a)(4)(C) and 9607(f).
F. On or about May 12, 1993, the Commonwealth of
Pennsylvania
("Commonwealth") filed a motion to intervene as of right
and a
complaint against Publicker, Cuyahoga Wrecking
Corporation, and
Overland Corporation. On July 6, 1993, the Court granted
the
Commonwealth's motion to intervene.
G. On _______________, 1995, the Commonwealth filed an
amended
complaint in which it added ACI as a defendant in this
action.
On _______________, 1995, the Court granted the
Commonwealth's
motion to file an amended complaint.
H. Publicker and ACI (collectively, the "Settling
Defendants")
represent, and for purposes of this Consent Decree the
United
States and the Commonwealth rely upon this
representation, that
the Settling Defendants' business, corporate and
financial
transactions, and financial condition have been
accurately
stated in Publicker's 10-Q, 8-K, and 10-K Forms filed
with the
Securities and Exchange Commission ("SEC") during the
three
years prior to the Effective Date.
I. The United States, the Commonwealth, Publicker, and
ACI
(collectively, the "Settling Parties") have entered into
this
Consent Decree. The Settling Parties do not admit any
liability
arising out of the transactions or occurrences alleged in
the
United States' and the Commonwealth's amended complaints
or the
Settling Defendants' counterclaim. The Settling Parties
reserve
the right to contest any allegations in the United
States' and
the Commonwealth's amended complaints or the Settling
Defendants' counterclaim in all future proceedings in
this or
any other action.
J. The Settling Parties recognize, and the Court by
entering
this Consent Decree finds, that this Consent Decree has
been
negotiated by the Settling Parties in good faith and
implementation of this Consent Decree will avoid
prolonged and
complicated litigation among the Settling Parties, and
that this
Consent Decree is fair, reasonable, and in the public
interest.
NOW THEREFORE, it is hereby ORDERED, ADJUDGED, AND
DECREED:
II. JURISDICTION
This Court has jurisdiction over the subject matter of
this
action pursuant to 28 U.S.C. 1331 and 1345 and 42
U.S.C.
9613(b). This Court also has personal jurisdiction over
the
Settling Parties. Solely for the purposes of this
Consent
Decree and the underlying amended complaints and
counterclaim,
Settling Parties waive all objections and defenses that
they may
have to jurisdiction of the court or to venue in this
District.
The Settling Parties shall not challenge the terms of
this
Consent Decree or this Court's jurisdiction to enter and
enforce
this Consent Decree.
III. PARTIES BOUND
A. This Consent Decree applies to and is binding upon
the
United States, upon the Commonwealth, upon the Settling
Defendants, and upon the Settling Defendants' successors
and
assigns. Any change in ownership or corporate status of
the
Settling Defendants including, but not limited to, any
transfer
of assets or real or personal property shall in no way
alter the
Settling Defendants' responsibilities under this Consent
Decree.
B. The obligations of the Settling Defendants under
this
Consent Decree (including the obligation to pay amounts
owed the
United States and the Commonwealth under this Consent
Decree)
are joint and several. In the event of the insolvency or
other
failure of any one Settling Defendant to pay any amount
owed the
United States or the Commonwealth under this Consent
Decree, the
other Settling Defendant shall pay such amount owed.
IV. DEFINITIONS
Unless otherwise expressly provided herein, terms used
in this
Consent Decree which are defined in CERCLA or in
regulations
promulgated under CERCLA shall have the meaning assigned
to them
in CERCLA or in such regulations. Whenever terms listed
below
are used in this Consent Decree, the following
definitions shall
apply:
"ACI" shall mean Sagrocry, Inc., formerly named American
Cryogas Industries, Inc., formerly named Thermice
Corporation.
"CERCLA" shall mean the Comprehensive Environmental
Response,
Compensation, and Liability Act of 1980, as amended, 42
U.S.C.
9601 et seq.
"Certification of Completion of the Remedial Action"
shall mean
the Commonwealth's written certification, pursuant to
Section
706 of HSCA, 35 P.S. 6020.706, that the Remedial Action
at the
Site has been completed in accordance with the
requirements of
(a) HSCA, including, but not limited to,
Section 706
of HSCA; and (b) this Consent Decree.
"Commonwealth" shall mean the Commonwealth of
Pennsylvania,
Department of Environmental Protection (formerly the
Department
of Environmental Resources), the executive agency of the
Commonwealth with the duty and authority to administer,
enforce,
file and settle claims for cost recovery and natural
resource
damages pursuant to CERCLA and HSCA.
"Completion of response actions" shall mean the
completion of
all response actions at the Site. Completion of response
actions shall not be deemed to have occurred until all
performance standards set forth in any existing or future
Record
of Decision for the Site have been achieved and all
remedial
actions set forth in any existing or future Record of
Decision
for the Site have been completed.
"Consent Decree" shall mean this Decree.
"Day" shall mean a calendar day unless expressly stated
to be a
working day. "Working day" shall mean a day other than a
Saturday, Sunday, or Federal holiday. In computing any
period
of time under this Consent Decree, where the last day
would fall
on a Saturday, Sunday, or Federal holiday, the period
shall run
until the close of business of the next working day.
"Effective Date" shall mean the date that the Court
enters this
Consent Decree.
"EPA" shall mean the United States Environmental
Protection
Agency and any successor departments or agencies of the
United
States.
"Future Response Costs" shall mean all response costs,
including, but not limited to, direct and indirect costs,
that
the United States and/or the Commonwealth incurred and
will
incur at the Site on and after the Lodging Date.
"HSCA" shall mean the Hazardous Sites Cleanup Act, Act
of
October 18, 1988, P.L. 756, No. 108, as amended, 35 P.S.
6020.101 et seq.
"Hazardous Substances" shall have the same meaning
provided in
Section 101(14) of CERCLA, 42 U.S.C. 9601(14) and
Section 103
of HSCA, 35 P.S. 6020.103. As applied to claims under
HSCA,
the term shall also include "contaminants" as defined by
Section
103 of HSCA, 35 P.S. 6020.103.
"Lodging Date" shall mean the date that the United
States
lodged this Consent Decree with the Court.
"Motion for Entry Date" shall mean the date that the
United
States files with the Court a motion for entry of this
Consent
Decree.
"Natural Resources" shall have the meaning provided in
Section
101(16) of CERCLA, 42 U.S.C. 9601(16).
"Natural Resource Damages" means damages, including
costs of
damages assessment, recoverable under Section 107 of
CERCLA, 42
U.S.C. 9607, and/or Section 702 of HSCA, 35 P.S.
6020.702,
for injury to, destruction of, or loss of any and all
Natural
Resources at the Site.
"Paragraph" shall mean a portion of this Consent Decree
identified by an arabic numeral or an upper case letter.
"Past Response Costs" shall mean all response costs,
including,
but not limited to, direct and indirect costs and
interest, that
the United States and/or the Commonwealth incurred at the
Site
prior to the Lodging Date.
"Plaintiff-Intervenor" shall mean the Commonwealth.
"Pollutant or contaminant" shall have the same meaning
provided
in Section 101(33) of CERCLA, 42 U.S.C. 9601(33).
"Publicker" shall mean Publicker Industries Inc.
"RCRA" shall mean the Resource Conservation and Recovery
Act,
42 U.S.C. 6901-6992k, which is also known as the Solid
Waste
Disposal Act.
"Section" shall mean a portion of this Consent Decree
identified by a roman numeral.
"Settling Federal Agencies" shall mean all agencies,
departments, instrumentalities, or other constituent
components
of the United States and their officials and employees
acting
solely in their official capacities that may have CERCLA
or HSCA
liability at the Site including, but not limited to, the
U.S.
Department of Commerce and the General Services
Administration.
"Settling Parties" shall mean the United States, the
Commonwealth, Publicker and ACI.
"Site" shall mean the Publicker Industries Inc.
Superfund Site
identified in Paragraph I.B above.
"Solid waste" shall have the same meaning provided under
Section 1004(27) of the Solid Waste Disposal Act, 42
U.S.C.
6903(27).
"United States" shall mean the United States of America.
"Waste Material" shall mean (1) any hazardous substance;
(2)
any pollutant or contaminant; and (3) any solid waste.
V. REIMBURSEMENT OF RESPONSE COSTS AND
PAYMENT OF NATURAL RESOURCE DAMAGES
TO THE UNITED STATES BY SETTLING DEFENDANTS
A. Initial Payment. On April 6, 1995, the Settling
Defendants
deposited with the Clerk of this Court the sum of four
million,
five hundred thousand dollars ($4,500,000) to be held for
use as
payment of a portion of Past Response Costs allegedly
incurred
by the United States in connection with the Site and for
payment
of a portion of Natural Resource Damages allegedly
sustained at
the Site. In the Joint Motion And Stipulation To
Establish An
Escrow Account filed with the Court on December 20, 1994
and
entered on January 10, 1995 ("the Escrow Stipulation"),
the
Settling Parties agreed that the Escrow Account could be
terminated prior to the Effective Date under conditions
specified in the Escrow Stipulation.
1. If the Escrow Account is still in existence on
the
Effective Date, the Clerk of this Court shall, within ten
(10)
days of the later of the Effective Date or the
determination as
to the "agreed refund" pursuant to Paragraph V.B below,
release
to the United States the sum of $4,500,000 plus all
interest
accrued in the Escrow Account on the $4,500,000 ("Accrued
Escrow
Account Interest").
2. In addition to the disbursement of funds
pursuant to
Subparagraph V.A.1, if the Escrow Account is still in
existence
on the Effective Date, within thirty (30) days of the
Effective
Date, the Settling Defendants shall pay $4,500,000, plus
an
amount equal to the Accrued Escrow Account Interest (a)
into the
Escrow Account if the determination as to the "agreed
refund"
has not been made in accordance with Paragraph V.B below
or (b)
in accordance with the provisions of that determination
if it
has been made. Payment under Subparagraphs V.A.1 and
V.A.2
shall not release the Settling Defendants from the
payments
required under Paragraph V.C.
3. If the Escrow Account has been terminated prior
to the
Effective Date and the monies deposited into the Escrow
Account
have been returned to the Settling Defendants, the
Settling
Defendants shall pay to the United States the following
sums:
(a) $3,000,000 within thirty (30) days of the Effective
Date;
(b) $1,500,000 on the one year anniversary of the
Effective
Date; (c) $1,500,000 on the two year anniversary of the
Effective Date; (d) $1,500,000 on the three year
anniversary of
the Effective Date; (e) $1,500,000 on the four year
anniversary
of the Effective Date; (f) an interest payment on the
first
anniversary of the Effective Date equal to the amount of
interest accrued at the rate of four percent per annum on
the
outstanding balance of $9,000,000 running from the date
that the
$4,500,000 was originally placed in the Escrow Account;
and (g)
an interest payment on the second, third, and fourth
anniversaries of the entry of the Effective Date equal to
the
amount of interest accrued during the previous one year
period
at the rate of seven percent per annum on the outstanding
balance due. Payment under this Subparagraph V.A.3 shall
not
release the Settling Defendants from the payments
required under
Paragraph V.C.
B. Agreed Refund. Litigation counsel for the United
States
have informed the Settling Defendants that a contractor
who was
involved with the Site is being investigated for possible
fraud
in connection with work performed at another site.
Litigation
counsel have further informed Settling Defendants that
the
investigation did not arise from allegations related to
activities at the Site.
1. Litigation counsel for the United States have
undertaken to inform the Settling Defendants when the
investigation into that contractor's activities has been
completed and whether that investigation showed that the
United
States incurred costs at the Site as a result of fraud by
that
contractor. The Settling Parties shall then attempt to
agree as
to whether and to what extent the United States incurred
such
fraudulent costs at the Site and, failing such agreement,
and
upon motion by any of the Settling Parties, such
determination
shall be made by order of the Court. In the event the
Settling
Parties agree or the Court determines that the United
States
incurred $500,000 or more in costs at the Site as a
result of
fraud involving said contractor, the Settling Defendants
shall
be entitled to a reduction in the amount of their
settlement
payments of two-thirds of the amount of the fraudulent
charges
above $500,000 ("agreed refund").
2. If the Settling Defendants are entitled to such
an agreed
refund under Subparagraph V.B.1 above, the agreed refund
shall
be disbursed to Settling Defendants from the Escrow
Account in
accordance with Paragraph II.D.of the Escrow Stipulation,
and
all remaining funds shall be disbursed to the United
States.
Provided, however, that if the amount of the agreed
refund is
determined prior to the Settling Defendants having made
all
payments required of them under Paragraph V.C, the agreed
refund
shall be made first by canceling the Settling Defendants'
obligation to make future payments, and disbursements to
the
Settling Defendants from the Escrow Account shall be made
only
to the extent that the amount of the agreed refund
exceeds the
total of future payments. Any agreed refund that is made
hereunder by canceling the Settling Defendants'
obligation to
make future payments shall be applied to future payments
on a
pro rata basis (such that each future payment is reduced
by the
same ratio as the agreed reduction bears to the total of
future
payments). All funds in the Escrow Account that are not
to be
refunded to the Settling Defendants hereunder shall be
disbursed
to the United States pursuant to Paragraph II.D of the
Escrow
Stipulation. 3. If the Escrow Account has been
terminated
prior to the Effective Date and the monies deposited into
the
Escrow Account have been returned to the Settling
Defendants,
the agreed refund shall be credited pro rata against
payments
due pursuant to Subparagraph V.A.3 above.
C. Six Annual Payments. The Settling Defendants shall
pay
four million three hundred fifty thousand dollars
($4,350,000)
plus interest to the United States within six years of
the
Effective Date as payment of a portion of Past Response
Costs
allegedly incurred by the United States in connection
with the
Site. If at the time any of the foregoing annual
payments are
due the Escrow Account has not been terminated, such
payment(s)
shall be made into the Escrow Account in accordance with
Paragraph V.H.; if the Escrow Account has been
terminated, such
payment(s) shall be made to the United States in
accordance with
Paragraph V.H. The Settling Defendants' payment shall be
made
in accordance with the schedule set forth in
Subparagraphs V.C.1
through V.C.6 below.
1. First Annual Payment. On or before the one year
anniversary of the Effective Date, the Settling
Defendants shall
pay to the United States $633,333 plus interest.
Interest shall
be calculated from the period beginning on the Effective
Date
through to the date of payment of the $633,333 pursuant
to this
Subparagraph V.C.1. Interest during this period shall
accrue on
the outstanding balance of $4,350,000.
2. Second Annual Payment. On or before the two year
anniversary of the Effective Date, the Settling
Defendants shall
pay to the United States $683,332 plus interest.
Interest shall
be calculated from the period beginning on the date
payment was
made pursuant to the preceding Subparagraph V.C.1 through
to the
date of payment of the $683,332 pursuant to this
Subparagraph
V.C.2. Interest during this period shall accrue on the
outstanding balance of $3,716,667.
3. Third Annual Payment. On or before the three
year
anniversary of the Effective Date, the Settling
Defendants shall
pay to the United States $683,334 plus interest.
Interest shall
be calculated from the period beginning on the date
payment was
made pursuant to the preceding Subparagraph V.C.2 through
to the
date of payment of the $683,334 pursuant to this
Subparagraph
V.C.3. Interest during this period shall accrue on the
outstanding balance of $3,033,335.
4. Fourth Annual Payment. On or before the four
year
anniversary of the Effective Date, the Settling
Defendants shall
pay to the United States $783,332 plus interest.
Interest shall
be calculated from the period beginning on the date
payment was
made pursuant to the preceding Subparagraph V.C.3 through
to the
date of payment of the $783,332 pursuant to this
Subparagraph
V.C.4. Interest during this period shall accrue on the
outstanding balance of $2,350,001.
5. Fifth Annual Payment. On or before the five year
anniversary of the Effective Date, the Settling
Defendants shall
pay to the United States $783,334 plus interest.
Interest shall
be calculated from the period beginning on the date
payment was
made pursuant to the preceding Subparagraph V.C.4 through
to the
date of payment of the $783,334 pursuant to this
Subparagraph
V.C.5. Interest during this period shall accrue on the
outstanding balance of $1,566,669.
6. Sixth Annual Payment. On or before the six year
anniversary of the Effective Date, the Settling
Defendants shall
pay to the United States $783,335 plus interest.
Interest shall
be calculated from the period beginning on the date
payment was
made pursuant to the preceding Subparagraph V.C.5 through
to the
date of payment of the $783,335 pursuant to this
Subparagraph
V.C.6. Interest during this period shall accrue on the
outstanding balance of $783,335.
D. Rate of Interest. The rate of interest to be used
in
calculating annual interest payments pursuant to
Subparagraphs
V.C.1 through V.C.6 shall be an annual rate of five
percent (5%).
E. Insurance Recoveries. If the Settling Defendants,
in their
sole discretion, pursue claims against their insurance
carriers,
then, in further payment of a portion of Past Response
Costs and
a portion of Future Response Costs allegedly incurred by
the
United States in connection with the Site, the Settling
Defendants shall pay to the United States thirty-five
percent
(35%) of all monies received by the Settling Defendants
from any
insurance company, insurance agent, insurance broker, or
insurance carrier with respect to any insurance or
related claim
pertaining to the Site, net of any litigation expenses
incurred
by and not reimbursed to the Settling Defendants. The
Settling
Defendants shall make the 35% payment(s) required
pursuant to
the preceding sentence within sixty (60) days of the
Settling
Defendants' receipt of any such monies from any insurance
company, insurance agent, insurance broker, or insurance
carrier.
F. Other potentially responsible parties.
1. The Settling Defendants have assigned to the
United States
any and all claims for cost recovery (including
contribution
claims for cost recovery) that the Settling Defendants
may have
against Holt Cargo Systems, Inc., Delaware Avenue
Enterprises,
Inc., Cresmont Limited Partnership, their successors and
assigns, and their officers, directors, shareholders,
partners,
employees, agents, and their successors (collectively,
"Holt")
with respect to the Site, and Holt has assigned all of
its
claims for cost recovery (including contribution claims
for cost
recovery) against Settling Defendants (and Settling
Defendants'
successors, assigns, officers, directors, shareholders,
partners, employees, agents, and their successors) to the
United
States (which claims are subject to the covenant not to
sue set
forth below). These assignments, which become effective
on the
Effective Date, are attached as Exhibits A and B to this
Consent
Decree. In addition, the Settling Defendants have
assigned,
transferred, quitclaimed, and released to Delaware Avenue
Enterprises, Inc. or its designees all of their right,
title,
and interest in and to the Site, including without
limitation
all easements, rights of way, usage, access or occupancy
rights,
all rights in and to any pipelines, tanks, equipment,
and/or
piers, and any other rights or privileges relating to or
affecting the Site, and any obligations or restrictions
binding
upon or affecting in any way the Site, the owner or
occupants
thereof, their successors and assigns. The quitclaim
deed is
confirmed in an instrument duly acknowledged and in
proper form
for recording with the recorder's office, which deed
becomes
effective on the Effective Date and is attached as
Exhibit C.
2. In further payment of a portion of Past Response
Costs and
a portion of Future Response Costs allegedly incurred by
the
United States in connection with the Site, the United
States
shall receive thirty-five percent (35%) of all monies
recovered
by the Settling Defendants in any action(s) that Settling
Defendants may, in their sole discretion, bring against
any
other potentially responsible party(ies) at the Site, net
of any
litigation expenses incurred by and not reimbursed to the
Settling Defendants. The Settling Defendants shall make
the 35%
payment(s) required pursuant to the preceding sentence
within
sixty (60) days of Settling Defendants' receipt of any
such
monies from any such potentially responsible party(ies).
Nothing in this Paragraph V.F shall affect the
subordination of
Settling Defendants' claims against such other
potentially
responsible party(ies) pursuant to Section 113(f)(3)(C)
of
CERCLA, 42 U.S.C. 9613(f)(3)(C).
G. Allocation Between Response Costs and Natural
Resource
Damages. Ten thousand dollars ($10,000) paid to the
United
States pursuant to Paragraph V.A shall be deemed to be to
the
United States on behalf of the NOAA Damage Assessment and
Restoration Revolving Fund. Four hundred ninety-seven
thousand
dollars ($497,000) paid to the United States pursuant to
Paragraph V.A shall be deemed to be to the United States
on
behalf of the DOI Natural Resource Damage Assessment and
Restoration Fund. In addition, five and five tenths
percent
(5.5%) of all accrued interest paid to the United States
pursuant to Paragraph V.A shall be deemed to be to the
United
States on behalf of the DOI Natural Resource Damage
Assessment
and Restoration Fund. All remaining monies paid to the
United
States pursuant to Paragraph V.A shall be deemed to be to
the
United States on behalf of EPA in reimbursement of a
portion of
Past Response Costs incurred at the Site. All payments
made to
the United States pursuant to Subparagraphs V.C.1 through
V.C.6
shall be deemed to be to the United States on behalf of
EPA in
reimbursement of a portion of Past Response Costs and
Future
Response Costs incurred at the Site.
H. Payment Method. All payments required to be made to
the
Escrow Account pursuant to the preceding Paragraphs V.A
and V.C
shall be made by certified or cashier's check, payable to
"Clerk, U.S.D.C.," and shall be accompanied by a letter
referencing the caption of this case and stating that the
check
is a payment into the interest-bearing escrow account
established by the parties' Joint Motion and Stipulation
to
Establish an Escrow Account, which was approved by the
Court on
January 10, 1995. All other payments to the United
States
shall be by Electronic Funds Transfer (EFT or wire
transfer) or
by certified check to the U.S. Department of Justice
lockbox
bank, and referencing: CERCLA Number 03-3A; DOJ Case
Number
90-11-3-689; and the U.S. Attorney's Office File Number
9002108.
Any EFTs received at the United States Department of
Justice
lockbox bank after 4:00 P.M. (Eastern Time) will be
credited on
the next business day. Payment to the United States
shall be
made in accordance with written instructions provided by
the
United States within twenty (20) days of the Effective
Date. A
written copy of the EFT payment authorization shall be
sent to
the United States.
VI. REIMBURSEMENT OF RESPONSE COSTS AND PAYMENT OF
NATURAL
RESOURCE DAMAGES TO THE COMMONWEALTH BY SETTLING
DEFENDANTS
A. Payment Specifications. Settling Defendants shall
pay the
Commonwealth one million dollars ($1,000,000) in
settlement of
the Commonwealth's claims for response costs and natural
resource damages sought in this action. This payment
shall
consist of a $350,000 initial payment and four equal
annual
installment payments, plus interest. All payments to the
Commonwealth shall be by certified or cashier's check(s)
made
payable to the Hazardous Sites Cleanup Fund. Payments
shall
reference the Publicker CERCLA Site. Payments shall be
mailed
certified or hand-delivered to:
George Danyliw
HSCA Manager - SE Region
Department of Environmental
Protection
Hazardous Sites Cleanup
Lee Park, Suite 6010
555 North Lane
Conshohocken, Pennsylvania 19428
In the alternative, Settling Defendants may make payments
to the
Commonwealth by Electronic Funds Transfer (EFT or wire
transfer)
made to:
State Depository Bank of Deposit: Corestates
State Depository Bank Code: 031000011
State Depository Bank Account No.: 01966288
At least five working days prior to any such EFT, the
Settling
Defendants shall notify the Commonwealth in writing of
the
expected date and amount of the EFT. Such notification
shall be
made to Lauree Balsbaugh, Bureau of Waste Management,
Hazardous
Sites Cleanup Program, 400 Market Street, 14th Floor
RCSOB,
Harrisburg, PA 17105-8471. Any EFTs received by the
Commonwealth's bank after 4:00 p.m. (Eastern time) will
be
credited to the next business day. The Settling
Defendants
shall also send a written copy of the EFT payment
authorization
to George Danyliw, HSCA Manager - SE Region, Department
of
Environmental Protection, Hazardous Sites Cleanup, Lee
Park,
Suite 6010, 555 North Lane, Conshohocken, PA 19428.
B. Initial Payment. The initial payment of $350,000
shall
be made within ten (10) days of the Effective Date.
C. Four Annual Payments. The Settling Defendants shall
pay Six
Hundred and Fifty Thousand Dollars ($650,000) plus
interest to
the Commonwealth within four years of the Effective Date
to
complete payment in settlement of the Commonwealth's
claims for
response costs and natural resource damages sought in
this
action. The Settling Defendants' payments shall be made
in
accordance with the schedule set forth in Subparagraphs
C.1
through C.4 below.
1. First Annual Payment. On or before the one-year
anniversary of the Effective Date, the Settling
Defendants shall
pay to the Commonwealth $162,500 plus interest. Interest
shall
be calculated from the period beginning on the Effective
Date
through to the date of payment of the $162,500 pursuant
to this
Subparagraph C.1. Interest during this period shall
accrue on
the outstanding balance of $650,000.
2. Second Annual Payment. On or before the
two-year
anniversary of the Effective Date, the Settling
Defendants shall
pay to the Commonwealth $162,500 plus interest. Interest
shall
be calculated from the period beginning on the date
payment was
made pursuant to the preceding Subparagraph C.1 through
to the
date of payment on the $162,500 pursuant to this
Subparagraph
C.2. Interest during this period shall accrue on the
outstanding balance of $487,500.
3. Third Annual Payment. On or before the
three-year
anniversary of the Effective Date, the Settling
Defendants shall
pay to the Commonwealth $162,500 plus interest. Interest
shall
be calculated from the period beginning on the date
payment was
made pursuant to the preceding Subparagraph C.2 through
to the
date of payment on the $162,500 pursuant to this
Subparagraph
C.3. Interest during this period shall accrue on the
outstanding balance of $325,000.
4. Fourth Annual Payment. On or before the
four-year
anniversary of the Effective Date, the Settling
Defendants shall
pay to the Commonwealth $162,500 plus interest. Interest
shall
be calculated from the period beginning on the date
payment was
made pursuant to the preceding Subparagraph C.3 through
to the
date of payment on the $162,500 pursuant to this
Subparagraph
C.4. Interest during this period shall accrue on the
outstanding balance of $162,500.
D. Rate of Interest. The rate of interest to be used in
calculating annual interest payments pursuant to
Subparagraphs
C.1 through C.4 shall be at the annual rate of seven and
one-half percent (7.5%).
VII. FAILURE TO MAKE TIMELY PAYMENTS
A. Acceleration. If the Settling Defendants fail to
make any
payments required by and in accordance with the schedule
set
forth in Section V (Reimbursement Of Response Costs And
Payment
Of Natural Resource Damages to the United States By
Settling
Defendants) or Section VI (Reimbursement of Response
Costs and
Payment of Natural Resources Damages to the Commonwealth
by
Settling Defendants), and if such default is not cured
within
forty-five days, then, on the date on which such period
for
curing nonpayment expires, the United States and/or the
Commonwealth may make a written demand, in the sole
discretion
of the demanding party, that Settling Defendants pay all
amounts
owed by Settling Defendants to the demanding party under
this
Consent Decree, including all future payments. If the
United
States and/or the Commonwealth makes such a demand,
Settling
Defendants shall be liable for and shall be required to
pay the
sum(s) demanded in accordance with Paragraph V.H. (as to
the
United States) and/or Paragraph VI.A. (as to the
Commonwealth).
Settling Defendants shall pay the Commonwealth a
stipulated
penalty in the amount of $250 per day for each day of
failure to
make payment to the Commonwealth beginning on the date on
which
such period for curing nonpayment expires. Such
stipulated
penalties are due and collectible immediately, and
payment shall
immediately be made to the Commonwealth as per the method
specified in Paragraph VI.A.
B. Interest.
1. To the United States. If Settling Defendants fail to
make
payments required by Section V (Reimbursement Of Response
Costs
And Payment Of Natural Resource Damages By Settling
Defendants)
or this Section VII (Failure To Make Timely Payments) in
accordance with the schedule set forth in Section V and
Section
VII, Settling Defendants shall pay to the United States
interest
on the unpaid obligation from the first day payment is
overdue
until the obligation is paid in full. Interest shall
accrue at
the annual rate of seven percent. Interest pursuant to
this
Subparagraph VII.B.1 shall be paid to the United States
at such
time as Settling Defendants make late payment of the
amounts due.
2. To the Commonwealth. If Settling Defendants fail to
make
payments required by Section VI (Reimbursement of
Response Costs
and Payment of Natural Resources Damages to the
Commonwealth by
Settling Defendants) or this Section VII (Failure to Make
Timely
Payments) in accordance with the schedule set forth in
Section
VI and Section VII, Settling Defendants shall pay to the
Commonwealth interest on the unpaid obligation from the
first
day payment is overdue until the obligation is paid in
full.
Interest shall accrue at the annual rate of seven and
one-half
percent (7.5%). Interest pursuant to this Paragraph
VII.B.2
shall be paid to the Commonwealth at such time as
Settling
Defendants make late payment of the amounts due.
C. Debt Collection. This Consent Decree shall be
considered
an enforceable judgment for purposes of post-judgment
collection
in accordance with Federal Rule of Civil Procedure 69 and
the
Federal Debt Collection Procedures Act, 28 U.S.C.
3001-3308.
Settling Defendants and the Commonwealth agree that the
Commonwealth has rights equivalent to those possessed by
the
United States pursuant to the Federal Debt Collection
Act, 28
U.S.C. 3001-3308, and that counsel for the
Commonwealth has
powers equivalent to those of "Counsel for the United
States" as
defined by the Federal Debt Collection Act, 28 U.S.C.
3001-3308, 3002(1). D. Non-exclusivity. Payments
made under
Paragraphs VII.A, VII.B, and VII.C shall be in addition
to any
other remedies or sanctions available to the United
States and
the Commonwealth by virtue of Settling Defendants'
failure to
make timely payments required by this Consent Decree.
VIII. PAYMENT OF RESPONSE COSTS
BY THE UNITED STATES AS COUNTERCLAIM DEFENDANT
A. Payment. The United States, on behalf of Settling
Federal
Agencies, shall pay to the EPA Hazardous Substance
Superfund
$500,000, either: (1) if no appeal of the entry of this
Consent
Decree is filed, within 120 days after the time for
filing an
appeal of the entry of this Consent Decree has expired;
or (2)
if the entry of this Consent Decree is appealed, within
120 days
after this Consent Decree is upheld on final appeal,
including
any denial of certiorari by the United States Supreme
Court.
Such payment shall constitute reimbursement of an agreed
upon
share of all Past Response Costs and all Future Response
Costs
subject to the proviso of Paragraph X.A. below. Payment
to the
EPA Hazardous Substance Superfund shall be by Electronic
Funds
Transfer (EFT or wire transfer) to the U.S. Department of
Justice lockbox bank, and referencing: CERCLA Number
03-3A; DOJ
Case Number 90-11-3-689; and the U.S. Attorney's Office
File
Number 9002108. A written copy of the EFT payment
authorization
shall be sent to the United States. The United States,
on
behalf of Settling Federal Agencies, shall pay interest
on the
unpaid amount from the first day payment is overdue until
the
obligation is paid in full. Interest shall accrue at the
rate
as provided for in Section 107(a) of CERCLA, 42 U.S.C.
9607(a).
B. Anti-Deficiency Act. Payment by the Settling
Federal
Agencies pursuant to the preceding Paragraph VIII.A is
subject
to the availability of appropriated funds. No provision
of this
Consent Decree shall be interpreted as or constitute a
commitment or requirement that the Settling Federal
Agencies
obligate or pay funds in contravention of the
Anti-Deficiency
Act, 31 U.S.C. 1341.
C. Full Satisfaction. The payment of the Settling
Federal
Agencies set forth in Paragraph VIII.A of this Consent
Decree is
in full satisfaction and full settlement of all past and
future
CERCLA liability at the Site for the Settling Federal
Agencies,
subject to the proviso of Paragraph X.A below. The
failure of
the Settling Federal Agencies to make payment as provided
by the
preceding Paragraph VIII.A shall not void this Consent
Decree or
the covenants not to sue set forth in Paragraphs IX.A,
IX.C, and
X.A. However, this paragraph and this Consent Decree do
not
affect any potential liability of the Settling Federal
Agencies
to the Commonwealth pursuant to CERCLA, HSCA or any other
statutory provision or common law theory.
IX. COVENANTS NOT TO SUE BY THE UNITED STATES AND THE
COMMONWEALTH
A. EPA/NOAA/DOI to Settling Defendants. In
consideration of
the payments that will be made by the Settling Defendants
under
the terms of the Consent Decree, and except as
specifically
provided in Paragraphs IX.E, IX.F, IX.G, IX.H, IX.J or
X.B
below, the United States covenants not to sue or to take
administrative action against Settling Defendants and
Settling
Defendants' past or present corporate officers,
directors, and
employees pursuant to Sections 104, 106, 107(a), 107(f),
113(f),
or 113(g)(2) of CERCLA, 42 U.S.C. 9604, 9606, 9607(a),
9607(f), 9613(f), 9613(g)(2), or Section 7003 of RCRA, 42
U.S.C.
6973, for performance of response actions at the Site,
for
Past Response Costs, for Future Response Costs, or for
Natural
Resource Damages. This covenant not to sue is effective
on the
Effective Date, subject to Paragraph IX.E below. This
covenant
not to sue extends only to Settling Defendants and the
Settling
Defendants' past or present corporate officers,
directors, and
employees and does not extend to any other person.
B. EPA/NOAA/DOI to Settling Federal Agencies. Subject
to the
limitation for unknown conditions and information
described in
Paragraph IX.G, EPA covenants not to take administrative
action
against the Settling Federal Agencies under CERCLA or
Section
7003 of RCRA with respect to the Site, including, without
limitation, claims for Past Response Costs, Future
Response
Costs, or future work with respect to the Site. Subject
to the
limitation for unknown conditions and information
described in
Paragraph IX.H., NOAA and DOI also covenant not to take
administrative action against the Settling Federal
Agencies
under Section 107(a) or 107(f) of CERCLA, 42 U.S.C.
9607(a),
(f), for Natural Resource Damages in connection with the
Site.
C. Settling Federal Agencies to Settling Defendants.
Except
as provided in Paragraph X.B, the United States covenants
not to
sue Settling Defendants or the Settling Defendants' past
or
present corporate officers, directors, or employees for
contribution with respect to the Site on behalf of the
Settling
Federal Agencies.
D. Commonwealth to Settling Defendants.
1. Subject to the reservations provided in this
Paragraph D.
and Paragraphs IX.E, IX.F, IX.G, IX.H, IX.J, or X.B and
in
consideration of the payments paid by Settling
Defendants, the
Commonwealth covenants not to sue or to take
administrative
action against Settling Defendants and Settling
Defendants' past
or present corporate officers, directors, and employees
pursuant
to Sections 104, 106, 107(a), 107(f), 113(f) or 113(g)(2)
of
CERCLA, 42 U.S.C. 9604, 9606, 9607(a), 9607(f),
9613(f), and
9613(g)(2), Section 7003 of RCRA, 42 U.S.C. 6963, and
Sections
507, 701, 702, 1101, 1102, and 1114 of HSCA, 35 P.S.
6020.507, 6020.701, 6020.702, 6020.1101, 6020.1102, and
6020.1114 for performance of response actions at the
Site, for
Past Response Costs, for Future Response Costs, or for
Natural
Resource Damages.
2. Except with respect to future liability under
HSCA, this
covenant not to sue shall take effect upon the signing of
this
Consent Decree by the Parties. With respect to future
liability
under HSCA, this covenant not to sue shall become
effective upon
certification by the Commonwealth in accordance with
Section 706
of HSCA, 35 P.S. 6020.706, that the remedial action[s]
for the
site have attained the performance standards as set forth
in
the Record[s] of Decision pertaining to the site and all
remedial action[s] thereunder have been completed in
accordance
with the requirements of HSCA and this Consent
Decree.
These covenants not to sue extend only to the Settling
Defendants and Settling Defendants' past or present
corporate
officers, directors, and employees and do not extend to
any
other person.
E. General Reservation of Rights. The covenants not to
sue set
forth in Paragraphs IX.A, IX.B, IX.C and IX.D do not
pertain to
any matters other than those expressly specified therein.
The
United States and the Commonwealth reserve, and this
Consent
Decree is without prejudice to, all rights against
Settling
Defendants and the Settling Defendants' corporate
officers,
directors, and employees with respect to all other
matters.
Except as provided in Paragraphs IX.A and IX.D, nothing
contained herein shall in any way limit or restrict the
response
and enforcement authority of the United States or the
Commonwealth to initiate or continue appropriate action,
either
judicial or administrative, under Sections 104, 106, and
107 of
CERCLA, 42 U.S.C. 9604, 9606, and 9607, under RCRA,
under
HSCA, or under any other provision of law, against
Settling
Defendants, the Settling Defendants' corporate officers,
directors, or employees, or against any other person or
entity
not a party to this Consent Decree.
F. Additional Reservations. The covenants not to sue
set
forth in Paragraphs IX.A, IX.B, IX.C. and IX.D do not
apply,
inter alia, in the following circumstances:
(1) the covenants to Settling Defendants (and not the
covenant
set forth in Paragraph IX.B) shall be null and void if
Settling
Defendants owe any amounts under this Consent Decree,
other than
during the 45-day cure period provided for in Paragraph
VII.A,
or are not in compliance with the other requirements of
this
Consent Decree, subject to Paragraphs XI.C and D, in
which event
the United States or the Commonwealth may continue this
action
or bring a separate action for (a) the full amount of
unreimbursed response costs incurred and to be incurred
in
connection with the Site, (b) all interest accrued since
December 19, 1990 pursuant to Section 107(a) of CERCLA,
and/or(c) the full amount of Natural Resource Damages
sustained
in connection with the Site;
(2) the covenants do not apply to disposal activities
that
took place at other sites;
(3) the covenants do not apply to liability arising
from any
action taken by the Settling Defendants or their
corporate
officers, directors, or employees after the filing date
of the
Escrow Stipulation; and
(4) the covenants do not apply to any criminal
liability.
G. Specific Reservation With Respect To Unknown
Conditions Or
Information. Notwithstanding any other provision of this
Consent Decree, the United States and/or the Commonwealth
reserve, and this Consent Decree is without prejudice to,
the
right to institute proceedings in this action or in a new
action, or to issue an administrative order, to compel
Settling
Defendants or the Settling Defendants' corporate
officers,
directors, or employees (1) to perform further response
actions
relating to the Site and/or (2) to reimburse the United
States
and/or the Commonwealth for additional response costs if
(i) conditions at the Site, previously unknown to
EPA and the
Commonwealth on the motion for entry date of the Consent
Decree,
are discovered, or
(ii) information, previously unknown to EPA and the
Commonwealth on the motion for entry date of the Consent
Decree,
is received,
and further response actions are needed or additional
response
costs are incurred due to these previously unknown
conditions or
information. Conditions at the Site known to EPA and the
Commonwealth on the motion for entry date of the Consent
Decree
and information known to EPA and the Commonwealth on the
motion
for entry date of the Consent Decree include only
information
contained in documents in the files of EPA Region III,
EPA's
Office of Solid Waste and Emergency Response (OSWER), and
EPA's
Office of Enforcement and Compliance Assurance (OECA) at
the
motion for entry date of the Consent Decree.
H. Reservations Concerning Natural Resource Injury.
Notwithstanding any other provision of this Consent
Decree, the
United States, on behalf of its natural resource
trustees, and
the Commonwealth, reserve the right to institute
proceedings
against Settling Defendants and the Settling Defendants'
corporate officers, directors, and employees in this
action or
in a new action seeking recovery of Natural Resource
Damages,
based on:
(a) conditions with respect to the Site, unknown to
the United
States and the Commonwealth at the motion for entry date
of this
Consent Decree, that result in releases of hazardous
substances
that contribute to injury to, destruction of, or loss of
natural
resources; or
(b) information received after the motion for entry
date of the
Consent Decree which indicates that there is injury to,
destruction of, or loss of natural resources of a type
that was
unknown, or of a magnitude substantially greater than was
known,
to the United States or the Commonwealth at the motion
for entry
date of this Consent Decree.
The information and conditions known (whether actually or
by
assumption) to the United States or the Commonwealth at
the
motion for entry date of this Consent Decree include
without
limitation the following:
1. With regard to terrestrial resources: soil and
sediment
have been contaminated at the concentrations specified in
the
attached tables (labeled as Exhibit D to this Consent
Decree)
and such contamination levels pose Site-wide toxicity
threats;
2. With regard to aquatic resources:
a. Releases from the Site have resulted in
sediment
contamination in the slip areas by one or more of the
following
organic chemicals or trace elements at a concentration
equal to
or greater than the NOAA ER-M value (the median
concentration in
the effects range above which toxic effects on aquatic
life
usually or frequently occur): arsenic, chromium, copper,
lead,
mercury, zinc, total PAHs, and total PCBs.
b. For purposes of the preceding Subparagraph
VIII.G.2.(a),
the ER-M values (in ppm dry weight) are as follows:
arsenic, 70;
chromium, 370; copper, 270; lead, 223; mercury, O.71;
zinc, 410;
total PAHs, 44.79; total PCBS, 0.18.
3. The information contained in documents in the files
of EPA
Region III, EPA's Office of Solid Waste and Emergency
Response
(OSWER), and EPA's Office of compliance Assurance (OECA),
in
DOI's files, and in NOAA's files prior to the motion for
entry
date of the Consent Decree.
I. Knowledge of the Commonwealth. In addition to the
conditions and information described in Paragraphs IX.G
and
IX.H, the conditions and information known to the
Commonwealth
include information actually possessed by the
Commonwealth prior
to the motion for entry date of the Consent Decree. Such
information includes, but is not limited to, all reports,
writings, charts, graphs, data or other documents, which
are in
the possession of the Commonwealth relating to the Site.
J. Representations Regarding Settling Defendants'
Financial
Condition. The covenants not to sue set forth in
Paragraphs
IX.A and IX.C shall be null and void if Settling
Defendants'
representation in Paragraph I.G above is false and
Settling
Defendants have materially understated their financial
strength
or results of operations in any SEC Form identified in
Paragraph
I.G.
K. Response Action Authority. Notwithstanding any
other
provision of this Consent Decree, the United States
and/or the
Commonwealth retain all authority and reserve all rights
to take
any and all response actions authorized by law.
L. Agreement Between NOAA and DOI. Upon NOAA's receipt
of the
$10,000 pursuant to Paragraph V.G, NOAA shall be deemed
to have
assigned to DOI all monies, rights, or interests obtained
by
NOAA in the Settlement Agreement with Freedom Savings and
Loan
Association and other parties that was approved by the
Court of
Appeals for the Second Circuit in the opinion styled In
re:
Cuyahoga Equipment Corp., 980 F.2d 110 (2d Cir. 1992).
X. COVENANT NOT TO SUE BY SETTLING DEFENDANTS
A. Settling Defendants hereby covenant not to sue and
agree
not to assert any claims or causes of action against the
United
States and/or the Commonwealth with respect to the Site
or this
Consent Decree, including, but not limited to: (i) any
direct or
indirect claim for reimbursement from the Hazardous
Substance
Superfund (established pursuant to the Internal Revenue
Code, 26
U.S.C. 9507) through CERCLA Sections 106(b)(2), 111,
112,
113(f), or 113(g)(2); (ii) any direct or indirect claim
for
reimbursement, contribution, and/or indemnity from the
Pennsylvania Hazardous Sites Cleanup Fund through Section
505(f)
of HSCA, 35 P.S. 6020.505(f), or based on any other
statutory
provision or common law theory; (iii) any claim against
the
United States, including any agency, department,
instrumentality, or other constituent component of the
United
States or any employee of the United States, under CERCLA
Sections 107, 113(f), or 113(g)(2) related to the Site;
(iv) any
claims against the Commonwealth under CERCLA Sections
107,
113(f) or 113(g)(2), or HSCA Sections 507, 701, 702, or
1114;
or (v) any claims arising out of response activities at
the
Site, including any claims asserted against the United
States'
or the Commonwealth's contractors; provided, however,
that to
the extent that Settling Defendants are sued under the
reopener
clause in Paragraph IX.G or IX.H above, neither this
covenant
not to sue by the Settling Defendants nor any provision
of this
Consent Decree shall bar Settling Defendants from
claiming or
counterclaiming against the United States or the
Commonwealth
with respect to the amount obtained from the Settling
Defendants
in such subsequent lawsuit or administrative action
brought by
the United States or the Commonwealth. The United
States and
the Commonwealth will interpose no objection to such
claim or
counterclaim based on said covenant not to sue or any
other
provision of this Consent Decree. Nothing in this
Consent
Decree shall be deemed to constitute preauthorization of
a claim
within the meaning of Section 111 of CERCLA, 42 U.S.C.
9611,
or 40 C.F.R. 300.700(d).
B. The covenants not to sue set forth in Paragraphs
IX.A,
IX.C and IX.D do not apply to and are null and void as to
any
past or present corporate officer, director, or employee
of the
Settling Defendants who brings an action against the
United
States and/or the Commonwealth, including any agency,
department, instrumentality, or other constituent
component of
the United States or the Commonwealth, or any employee of
the
United States or the Commonwealth, pertaining to the
Site.
XI. EFFECT OF SETTLEMENT; CONTRIBUTION PROTECTION
A. Nothing in this Consent Decree shall be construed to
create
any rights in, or grant any cause of action to, any
person not a
party to this Consent Decree. The preceding sentence
shall not
be construed to waive or nullify any rights that any
person not
a signatory to this decree may have under applicable law.
Each
of the Settling Parties expressly reserves any and all
rights
(including, but not limited to, any right to
contribution),
defenses, claims, demands, and causes of action which
each party
may have with respect to any matter, transaction, or
occurrence
relating in any way to the Site against any person not a
party
hereto.
B. With regard to claims for contribution for matters
addressed in this Consent Decree, the United States and
the
Settling Defendants agree that Settling Defendants and
the
Settling Federal Agencies are entitled to such protection
from
contribution actions or claims as is provided by Section
113(f)(2) of CERCLA, 42 U.S.C. 9613(f)(2), and the
Commonwealth and Settling Defendants agree that Settling
Defendants are entitled to such contribution protection
as is
provided by said Section 113(f)(2). With regard to HSCA
claims
for contribution against Settling Defendants for matters
addressed in this Consent Decree, the Commonwealth and
the
Settling Defendants agree that Settling Defendants are
entitled
to such protection from contribution actions or claims as
is
provided by Section 705(c)(2) of HSCA, 35 P.S.
6020.705(c)(2).
Settling Defendants shall be entitled to such protection
from
claims for contribution as is provided by Section 113(f)
of
CERCLA and by 705(c)(2) of HSCA which protection shall
take
effect upon the Effective Date and which shall be
effective if
Settling Defendants do not owe any amounts under this
Consent
Decree, other than during the 45-day cure period provided
for in
Paragraph VII.A, or are otherwise in compliance with the
terms
of this Decree, subject to Paragraphs XI.C and D.
C. Settling Defendants agree that with respect to any
suit or
judicial claim for contribution brought by any of
Settling
Defendants for matters related to this Consent Decree or
the
Site and with respect to any insurance or related
judicial claim
brought by any of Settling Defendants for matters related
to
this Consent Decree or the Site, Settling Defendants will
notify
the United States in writing no later than 60 days prior
to the
initiation of such suit or judicial claim. Settling
Defendants
shall pay a stipulated penalty in the amount of $1,500
per day
for each day that notice required under this Paragraph
XI.C is
not given for the first seven days of such failure, and
$2,500
per day for each day that such notice is not given
thereafter.
Stipulated penalties are due and payable within thirty
(30) days
of Settling Defendants' receipt from EPA of a demand for
payment
of the penalties. All payments pursuant to this
Paragraph XI.C
shall be paid by certified check made payable to the "EPA
Hazardous Substance Superfund," shall be mailed to EPA,
Region
III, Attention: Superfund Accounting, P.O. Box 360515,
Pittsburgh, PA 15251-6515, and shall reference CERCLA
Number
03-3A and DOJ Case Number 90-11-3-689. Copies of checks
paid
pursuant to this Paragraph XI.C shall be sent to the
United
States. Notwithstanding any other provision of this
Consent
Decree, the Covenant Not to Sue by the United States
under
Section IX above and the Contribution Protection under
Section
XI above shall not be affected by a violation of the
notice
requirement of this Paragraph XI.C so long as the
Settling
Defendants provide notice sufficient in content and in
time so
that the rights and interests of the United States are
not
prejudiced.
D. Settling Defendants also agree that, with respect to
any
suit or judicial claim for contribution brought against
either
of them for matters related to this Consent Decree,
Settling
Defendants will notify in writing the United States
within 10
days of service of the complaint on either of them. In
addition, Settling Defendants shall notify the United
States
within 10 days of service or receipt of any dispositive
motion
and within 10 days of receipt of any order from a court
setting
a case for trial. Settling Defendants shall pay a
stipulated
penalty in the amount of $1,500 per day for each day that
notice
required under this Paragraph XI.D is not given for the
first
seven days of such failure, and $2,500 per day for each
day that
such notice is not given thereafter. Stipulated
penalties are
due and payable within thirty (30) days of Settling
Defendants'
receipt from EPA of a demand for payment of the
penalties. All
payments pursuant to this Paragraph XI.D shall be paid by
certified check made payable to the "EPA Hazardous
Substance
Superfund," shall be mailed to EPA, Region III,
Attention:
Superfund Accounting, P.O. Box 360515, Pittsburgh, PA
15251-6515, and shall reference CERCLA Number 03-3A and
DOJ Case
Number 90-11-3-689. Copies of checks paid pursuant to
this
Paragraph XI.D shall be sent to the United States.
Notwithstanding any other provision of this Consent
Decree, the
Covenant Not to Sue by the United States under Paragraph
IX
above and the Contribution Protection under Paragraph XI
above
shall not be affected by a violation of the notice
requirement
of this subparagraph so long as the Settling Defendants
provide
notice sufficient in content and in time so that the
rights and
interests of the United States are not prejudiced.
E. In any subsequent administrative or judicial
proceeding
initiated by the United States and/or the Commonwealth
for
injunctive relief, recovery of response costs, or other
appropriate relief relating to the Site, Settling
Defendants and
Settling Defendants' past or present corporate officers,
directors, or employees shall not assert, and may not
maintain,
any defense or claim based upon the principles of waiver,
res
judicata, collateral estoppel, issue preclusion,
claim-splitting, or other defenses based upon any
contention
that the claims raised by the United States or the
Commonwealth
in the subsequent proceeding were or should have been
brought in
the instant case; provided, however, that nothing in this
Paragraph XI.E affects the enforceability of the
covenants not
to sue set forth in Section IX (Covenant Not To Sue By
the
United States and the Commonwealth). However, the
Settling
Defendants expressly reserve the right to assert any and
all
other possible defenses and claims against the United
States
and/or the Commonwealth in any subsequent administrative
or
judicial proceeding initiated by the United States or the
Commonwealth pursuant to this Consent Decree.
Notwithstanding
the foregoing, nothing in this Paragraph affects the
enforceability of the covenants not to sue set forth in
this
Consent Decree.
F. This Consent Decree was negotiated at arms' length,
is a
settlement of contested claims, and is executed by the
Settling
Parties in good faith to minimize litigation. The
participation
by Settling Defendants in this Consent Decree shall not
be
considered an admission of liability and shall not be
admissible
in evidence against Settling Defendants in any judicial
or
administrative proceeding other than a proceeding between
the
Settling Parties to adjudicate, interpret, or enforce
this
Consent Decree.
G. Settling Defendants acknowledge that the United
States
and/or the Commonwealth have no obligation to defend
Settling
Defendants in any suit, demand or claim for contribution
for any
matters arising from the release and threatened release
of
hazardous substances at the Site, arising out of the
CERCLA
actions at the Site, or arising out of this Consent
Decree.
H. The representations in Paragraphs 15 and 16(c) of the
Agreement In Principle between the United States and the
Settling Defendants are not extinguished by this Consent
Decree.
XII. ACCESS TO INFORMATION
A. Settling Defendants shall provide to EPA and/or the
Commonwealth, upon request, copies of all documents and
information within their possession or control or that of
their
contractors or agents relating to the Site or to the
implementation of this Consent Decree. Settling
Defendants
shall also make available to EPA and/or the Commonwealth,
for
purposes of investigation, information gathering, or
testimony,
their employees, agents, or representatives with
knowledge of
relevant facts concerning the Site.
B. Settling Defendants may assert business
confidentiality
claims covering part or all of the documents or
information
submitted to the United States under this Consent Decree
to the
extent permitted by and in accordance with Section
104(e)(7) of
CERCLA, 42 U.S.C. 9604(e)(7), and 40 C.F.R. 2.203(b).
Documents or information determined to be confidential by
EPA
will be afforded the protection specified in 40 C.F.R.
Part 2,
Subpart B. If no claim of confidentiality accompanies
documents
or information when they are submitted to EPA, or if EPA
has
notified Settling Defendants that the documents or
information
are not confidential under the standards of Section
104(e)(7) of
CERCLA, the public may be given access to such documents
or
information without further notice to Settling
Defendants.
C. Settling Defendants may assert that certain
documents,
records and other information are privileged under the
attorney-client privilege or any other privilege
recognized by
federal law. If Settling Defendants asserts such a
privilege in
lieu of providing documents, Settling Defendants shall
provide
the United States and the Commonwealth with the
following: (1)
the title of the document, record, or information; (2)
the date
of the document, record, or information; (3) the name and
title
of the author of the document, record, or information;
(4) the
name and title of each addressee and recipient; (5) a
description of the contents of the document, record, or
information: and (6) the privilege asserted by Settling
Defendants. If a claim of privilege applies only to a
portion
of a document, the document shall be provided to the
United
States in redacted form to mask only the portion of the
document
claimed to be privileged.
D. No claim of confidentiality shall be made with
respect to
any data, including, but not limited to, all sampling,
analytical, monitoring, hydrogeologic, scientific,
chemical, or
engineering data, or any other documents or information
evidencing conditions at or around the Site.
XIII. RETENTION OF RECORDS
A. Unless otherwise authorized in writing by the United
States
and the Commonwealth, Settling Defendants shall preserve
and
retain all records and documents now in their possession
or
control or which come into their possession or control
that
relate in any manner to the Site or the liability of any
person
for response actions conducted and to be conducted at the
Site,
regardless of any corporate document retention policy to
the
contrary.
B. At any time after the Effective Date, the United
States
and/or the Commonwealth shall have the right, upon
written
notice to the Settling Defendants, to review all such
records
and documents at the Settling Defendants' offices or at
such
other locations where the records and documents are
stored.
Prior to such review, Settling Defendants may assert that
any
record or document to be reviewed by the United States or
the
Commonwealth is privileged in accordance with Paragraph
XII.C,
in which event Settling Defendants shall provide to the
United
States and/or the Commonwealth the information required
under
that Paragraph. If the Settling Defendants do not assert
such
privilege with respect to a record or document prior to
review
by the United States or the Commonwealth, the Settling
Defendants shall be deemed to have waived any privilege
with
respect to the record or document.
C. Notwithstanding anything to the contrary in the
foregoing
Paragraphs XIII.A or XIII.B, at any time twelve months or
more
after the Effective Date, the Settling Defendants may
send a
notice in writing by certified mail to the United States
and the
Commonwealth of the Settling Defendants' intention to
destroy
specified records or documents, or groups of records or
documents. If within fourteen (14) days after receiving
such
notice, neither the United States nor the Commonwealth
directs
the Settling Defendants to deliver the specified records
or
documents, or groups of records or documents, to the
United
States or to the Commonwealth, the Settling Defendants
may, at
their option, destroy said specified records or documents
or
groups of records or documents; provided, however, that
Settling
Defendants shall not destroy any record or document with
respect
to which Settling Defendants shall have asserted a claim
of
privilege in accordance with Paragraph XIII.B.
D. Settling Parties hereby certify that, to the best of
their
knowledge, they have not altered, mutilated, discarded,
destroyed or otherwise disposed of any records, documents
or
other information relating to their potential liability
regarding the Site since notification of potential
liability by
the United States or the filing of this action regarding
the
Site and that Settling Parties have, to the best of their
knowledge, fully complied with any and all EPA requests
for
information pursuant
to Section 104(e) of CERCLA and production requests
served in
this action pursuant to Fed.R.Civ.P. 34.
XIV. NOTICES
A. Whenever, under the terms of this Consent Decree,
written
notice is required to be given or a document is required
to be
sent by one party to another, it shall be directed to the
individuals at the addresses specified below, unless
those
individuals or their successors give notice of a change
to the
other parties in writing. All notices and submissions
shall be
considered effective upon receipt, unless otherwise
provided.
Written notice as specified herein shall constitute
complete
satisfaction of any written notice requirement of the
Consent
Decree with respect to the United States, EPA, the
Commonwealth
and Settling Defendants, respectively.
As to the United States:
Chief, Environmental Enforcement Section
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611
Re: DOJ # 90-11-3-689
Susan Dein Bricklin
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Brian M. Nishitani (3RC33)
Sr. Assistant Regional Counsel
U.S. Environmental Protection Agency Region III
841 Chestnut Street
Philadelphia, PA 19107
As to EPA:
Brian M. Nishitani (3RC31)
Sr. Assistant Regional Counsel
U.S. Environmental Protection Agency Region III
841 Chestnut Street
Philadelphia, PA 19107
As to the Commonwealth:
George Danyliw
HSCA Manager - SE Region
Department of Environmental Protection
Hazardous Sites Cleanup
Lee Park, Suite 6010
555 North Lane
Conshohocken, Pennsylvania 19428
Patrick H. Zaepfel
Assistant Counsel
Office of Chief of Counsel
Department of Environmental Protection
400 Market Street
9th Floor
Harrisburg, Pennsylvania 17105-8464
As to Settling Defendants:
James J. Weis
President
Publicker Industries Inc.
1445 East Putnam Avenue
Old Greenwich, CT 06870
Joseph D'Amato
Sagrocry, Inc.
1445 East Putnam Avenue
Old Greenwich, CT 06870
Timothy A. Vanderver, Jr.
PATTON BOGGS, L.L.P.
2550 M Street, N.W.
Washington, D.C. 20037
XV. EFFECTIVE DATE
The effective date of this Consent Decree shall be the
date
upon which this Consent Decree is entered by the Court,
except
as otherwise provided herein.
XVI. RETENTION OF JURISDICTION
This Court retains jurisdiction over both the subject
matter of
this Consent Decree and Settling Parties for the duration
of the
performance of the terms and provisions of this Consent
Decree
for the purpose of enabling any of the Settling Parties
to apply
to the Court at any time for such further order,
direction, and
relief as may be necessary or appropriate for the
construction
or modification of this Consent Decree, or to effectuate
or
enforce compliance with its terms.
XVII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
A. This Consent Decree shall be lodged with the Court
for a
period of not less than thirty (30) days for public
notice and
comment. The United States reserves the right to
withdraw or
withhold its consent if the comments regarding the
Consent
Decree disclose facts or considerations which indicate
that the
Consent Decree is inappropriate, improper, or inadequate.
Settling Defendants consent to the entry of this Consent
Decree
without further notice.
B. This Consent Decree shall be lodged with the Court
for not
less than sixty (60) days and until the requirements of
Section
1113 of HSCA, 35 P.S. 6020.1113, are met. The
Commonwealth
reserves the right to withdraw or withhold its consent if
the
comments regarding this Consent Decree disclose facts or
considerations which indicate that this Consent Decree is
inappropriate, improper or not in the public interest.
C. If for any reason the Court should decline to
approve this
Consent Decree in the form presented, this agreement is
voidable
at the sole discretion of any party and the terms of the
agreement may not be used as evidence in any litigation.
D. If entry of the Consent Decree is reversed on
appeal, all
money paid to the United States by the Settling
Defendants shall
be returned to the payor.
XVIII. SIGNATORIES
A. The undersigned representative of the Settling
Defendants
and the Assistant Attorney General for the Environment
and
Natural Resources Division of the Department of Justice
each
certifies that he or she is fully authorized to enter
into the
terms and conditions of this Consent Decree and to
execute and
legally bind such party to this document.
B. Upon Settling Defendants' signature of this Consent
Decree,
Settling Defendants hereby agree not to oppose entry of
this
Consent Decree by this Court or to challenge any
provision of
this Consent Decree unless the United States has notified
Settling Defendants in writing that it no longer supports
entry
of the Consent Decree.
SO ORDERED THIS DAY OF , 1995.
United States District
Judge<PAGE>
THE UNDERSIGNED PARTIES enter into this Consent Decree in the
matter of United States v. Publicker Industries Inc., et
al.,
Civil Action No. 90-7984, relating to the Publicker
Industries
Superfund Site:
FOR THE UNITED STATES OF AMERICA:
Date: _11/1/95__________
LOIS J. SCHIFFER
Assistant Attorney General
Environment and Natural Resources
Division
U.S. Department of Justice
Washington, D.C. 20530
Date: __12/28/95______
MICHAEL R. STILES
United States Attorney
Eastern District of Pennsylvania
U.S. Department of Justice
Date: __12/15/95_______
SUSAN DEIN BRICKLIN
Assistant United States Attorney
Eastern District of Pennsylvania
U.S. Department of Justice
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
(215) 451-5318
Date: __10/20/95_
DAVID ROSSKAM
Trial Attorney
Environmental Enforcement Section
Environment and Natural Resources
Division
U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611
(202) 514-3974
Date: 12/8/95______
MARK NITCZYNSKI
ROBIN RICHARDSON
Trial Attorneys
Environmental Defense Section
Environment and Natural Resources
Division
U.S. Department of Justice
10th St. & Pennsylvania Ave., N.W.
Washington, D.C. 20530
Date: 12/27/95____
W. MICHAEL MCCABE
Regional
Administrator,
Region III
Agency
841 Chestnut Building
Philadelphia, PA 19107
Date: _12/27/95___
MARCIA E. MULKEY
Regional Counsel, Region III
U.S. Environmental Protection Agency
841 Chestnut Building
Philadelphia, PA 19107
Date: _12/22/95__
BRIAN M. NISHITANI
Sr. Assistant Regional Counsel,
Region III
U.S. Environmental Protection Agency
841 Chestnut Building
Philadelphia, PA 19107
FOR THE COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL
PROTECTION
Date: _12/11/95____
BRUCE D. BEITLER
Environmental Cleanup Manager
SE Region
Department of Environmental
Protection
Date: 12/7/95
PATRICK H. ZAEPFEL
Assistant Counsel
Office of Chief Counsel
Bureau of Hazardous Sites and
Superfund Enforcement
Department of Environmental
Protection
THE UNDERSIGNED PARTIES enter into this Consent Decree in
the
matter of United States v. Publicker Industries Inc., et
al.,
Civil Action No. 90-7984, relating to the Publicker
Industries
Superfund Site:
FOR PUBLICKER INDUSTRIES INC.:
Date: _10/31/95____ JAMES J. WEIS
President
Publicker Industries Inc.
1445 East Putnam Avenue
Old Greenwich, CT 06870
FOR SAGROCRY, INC.
Date: _10/31/95____
ANTONIO L. DELISE
Secretary
Sagrocry, Inc.
1445 East Putnam Avenue
Old Greenwich, CT 06870
Attorney-of-record for Publicker Industries Inc. and
Sagrocry,
Inc.:
Date: _11/1/95__
Timothy A. Vanderver, Jr.
PATTON BOGGS, L.L.P.
2550 M Street, N.W.
Washington, D.C. 20037
(202) 457-6000
