Exhibit 10(o)(A)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA
and the STATE OF WISCONSIN
CIVIL ACTION NO. 03-C-0949
Plaintiffs,
v.
The Honorable Lynn Adelman
P. H. GLATFELTER COMPANY
and
WTM I COMPANY
(f/k/a Wisconsin Tissue Mills Inc.),
Defendants.
AGREED SUPPLEMENT TO CONSENT DECREE
The Plaintiffs and Defendants in this action have entered into this Agreed
Supplement to Consent Decree (the "Agreed Supplement") in order to memorialize
an agreement reached in accordance with Subparagraph 98.d of the existing
Consent Decree. As explained below, this Agreed Supplement sets forth the
Defendants' agreement to commit additional funds for performance of their
obligations under the Consent Decree, as envisioned by Decree Subparagraph 98.d.
The United States is filing this Agreed Supplement with the Court to make it
part of the public record concerning the Consent Decree, but the Court need not
take any action on this filing.
1. The Plaintiffs filed this action on October 1, 2003, alleging that the
Defendants are among the parties liable for environmental contamination at the
Lower Fox River and Green Bay Site (the "Site") pursuant to the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sections
9601-9675. At the same time, the United States lodged with the
Court a proposed Consent Decree between the Plaintiffs and Defendants. After a
public comment period, the Court approved and entered the Consent Decree in a
Decision and Order dated April 12, 2004.
2. The Consent Decree requires the Defendants to perform sediment
remediation work at the portion of the Site that has been designated as Operable
Unit 1 ("OU1"). The Defendants began remedial work, including removing sediment
from OU1, in 2004, and the active remediation phase of that response work has
not yet been completed. The work is being overseen by the U.S. Environmental
Protection Agency ("EPA") and the Wisconsin Department of Natural Resources
("WDNR").
3. The Defendants are paying for the response work that they are performing
in OU1 using funds deposited in a dedicated escrow account established under the
Consent Decree (the "Escrow Account"). If EPA, in consultation with WDNR,
determines at any time that the funds remaining in that Escrow Account are not
sufficient to finance the completion of the response work, EPA has certain
rights that can lead to termination of the Consent Decree. As an alternative to
that course of action, Consent Decree Subparagraph 98.d affords the Defendants
an opportunity to "deposit additional funds in the Escrow Account, in order to
avoid an Insufficiency Determination."
4. The Plaintiffs recently notified the Defendants that EPA was considering
making a formal finding that the fund balance remaining in Escrow Account was
likely to be insufficient to fund the completion of the response work. The
parties have agreed to address that potential shortfall in the Escrow Account as
set forth in the following Paragraph.
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5. In accordance with Consent Decree Subparagraph 98.d, the parties hereby
agree that the Defendants shall deposit additional funds in the Escrow Account
established under the Consent Decree, as follows:
a. Defendant WTM I Company ("WTM I") shall deposit an additional $6
million in the Escrow Account. That total amount shall be paid in three
equal installments: (i) $2 million shall be payable on or before April 10,
2007; (ii) an additional $2 million shall be payable on or before July 10,
2007; and (iii) the final $2 million shall be payable on or before January
10, 2008. All three payments shall be deposited in a separate sub-account
within the Escrow Account (the "WTM I Sub-account"), so that those funds
can be distinguished from the other funds in the Escrow Account (the
"Existing Funds").
b. By no later than April 10, 2007, Defendant P.H. Glatfelter Company
("Glatfelter") shall obtain a $6 million irrevocable letter of credit
payable to the Escrow Account. The irrevocable letter of credit shall be
issued by a financial institution that has the authority to issue letters
of credit and whose letter of credit operations are regulated and examined
by an agency of the United States Government. The financial institution
shall have surplus and reserves in excess of $500 million. The irrevocable
letter of credit shall identify EPA as the beneficiary and the full $6
million shall immediately be payable to the Escrow Account: (i) at any time
before April 10, 2008, upon EPA's written certification that the Existing
Funds balance in the Escrow Account is below $2 million (by a letter in the
form attached hereto as Exhibit A); or (ii) on April 10, 2008, if payment
has not already been made by that date. The payment under the irrevocable
letter of credit shall be deposited in a separate sub-account within the
Escrow Account (the
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"Glatfelter Sub-account"), so that those funds can be distinguished from
the Existing Funds. At least five business days before finalizing the
letter of credit, Glatfelter shall afford the Plaintiffs and WTM I an
opportunity to review the proposed letter of credit to assess whether it
conforms to the requirements of this Subparagraph. Notwithstanding the
requirement that the letter of credit be irrevocable, at any time prior to
payment under the irrevocable letter of credit, Glatfelter may deposit $6
million into the Glatfelter Sub-account," at which time, Glatfelter may
cancel the letter of credit.
c. The Defendants shall direct the Escrow Account manager as follows:
All Existing Funds shall be exhausted before disbursement of any amounts
from the separate sub-accounts established and funded under the preceding
Subparagraphs of this Agreed Supplement. After the Existing Funds are
exhausted, the WTM I and Glatfelter Sub-accounts shall each be drawn upon
in equal amounts, on a 50/50 basis, to pay for response work.
d. The parties hereby agree that the additional funds to be paid into
the Escrow Account under the preceding Subparagraphs of this Agreed
Supplement fall within the definition of the "OU1 Response Activities and
Costs" specified by Consent Decree Subparagraph 83.b.
6. Pursuant to Consent Decree Section XXX (Retention of Jurisdiction), the
Court has jurisdiction to enforce compliance with the terms of this Agreed
Supplement because the Court retained jurisdiction over both the subject matter
of the Consent Decree and the Settling Defendants for the duration of the
performance of the terms and provisions of the Consent Decree for the purpose of
enabling any of the 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
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modification of the Consent Decree, or to effectuate or enforce compliance with
its terms, or to resolve disputes in accordance with Consent Decree Section XX
(Dispute Resolution).
IT IS SO STIPULATED AND AGREED.
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Signature Page for Agreed Supplement to Consent Decree in United States and the
State of Wisconsin v. P.H. Glatfelter Company and WTM I Company, Case No.
03-C-0949 (E.D. Wis.)
FOR THE UNITED STATES OF AMERICA
MATTHEW J. McKEOWN
Acting Assistant Attorney General
Environment and Natural Resources
Division
3/28/07 /s/ Randall M. Stone
Date -----------------------------------------
RANDALL M. STONE
Senior Attorney
Environmental Enforcement Section
U.S. Department of Justice
P.O. Box 7611
Washington, DC 20044-7611
Phone: (202) 514-1308
Fax: (202) 616-6584
E-Mail: Randall.Stone@USDOJ.GOV
STEVEN M. BISKUPIC
United States Attorney
MATTHEW V. RICHMOND
Assistant United States Attorney
Eastern District of Wisconsin
U.S. Courthouse and Federal Building -
Room 530
517 E. Wisconsin Avenue
Milwaukee, WI 53202
3/26/07 /s/ Richard Murawski
Date -----------------------------------------
RICHARD MURAWSKI
Associate Regional Counsel
U.S. Environmental Protection Agency
Region 5
77 West Jackson Boulevard
Chicago, IL 60604
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Signature Page for Agreed Supplement to Consent Decree in United States and the
State of Wisconsin v. P.H. Glatfelter Company and WTM I Company, Case No.
03-C-0949 (E.D. Wis.)
FOR THE STATE OF WISCONSIN
3/26/07 /s/ Bruce Baker
Date -----------------------------------------
BRUCE BAKER
Deputy Administrator, Division of Water
Wisconsin Department of Natural Resources
101 South Webster Street
Madison, WI 53703
3/27/07 /s/ Jerry L. Hancock
Date -----------------------------------------
JERRY L. HANCOCK
Assistant Attorney General
Wisconsin Department of Justice
17 West Main Street
Madison, WI 53702
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Signature Page for Agreed Supplement to Consent Decree in United States and the
State of Wisconsin v. P.H. Glatfelter Company and WTM I Company, Case No.
03-C-0949 (E.D. Wis.)
FOR P. H. GLATFELTER COMPANY
3/28/07 Signature: /s/ Jeffrey J. Norton
Date ------------------------------
Name (print): Jeffrey J. Norton
Title: Vice President, General Counsel
and Secretary
Address:
--------------------------------
--------------------------------
--------------------------------
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Signature Page for Agreed Supplement to Consent Decree in United States and the
State of Wisconsin v. P.H. Glatfelter Company and WTM I Company, Case No.
03-C-0949 (E.D. Wis.)
FOR WTM I COMPANY
March 27, 2007 Signature: /s/ J.P. Causey Jr.
Date ------------------------------
Name (print): J.P. Causey Jr.
Title: Vice President
Address: WTM I Company
Box 2350
Richmond, VA 23218-2350
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EXHIBIT A TO AGREED SUPPLEMENT TO CONSENT DECREE
(PRESCRIBED FORM OF LETTER DIRECTING PAYMENT UNDER LETTER OF CREDIT BEFORE APRIL
10, 2008)
[Date]
[Name and Address of Letter of Credit Issuer]
Payment Directive Under Letter of Credit No. ________________
Sir or Madam:
I am writing in my capacity as the authorized representative of the U.S.
Environmental Protection Agency ("EPA"), the designated beneficiary under the
above-referenced letter of credit. The letter of credit was established pursuant
to an "Agreed Supplement to Consent Decree" in the case captioned United States
and the State of Wisconsin v. P.H. Glatfelter Co. and WTM I Co., Case No.
03-C-949 (E.D. Wis.), and Subparagraph 5.b of that Agreed Supplement to Consent
Decree specified certain conditions for requesting payment under the letter of
credit before April 10, 2008.
EPA hereby certifies that the conditions for payment under Subparagraph 5.b
of the Agreed Supplement to Consent Decree have been satisfied, and EPA
therefore directs your institution to pay the full amount due under the letter
of credit ($6,000,000.00), as specified herein. Payment should be made by wire
transfer in accordance with the following payment instructions:
Payment Amount: $6,000,000.00
Payee: Fox River OU1 Escrow Account
c/o Deutsche Bank Trust Company Americas
Account No. 252080
[insert wire transfer instructions]
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Superfund Division Director
U.S. Environmental Protection Agency,
Region 5
CERTIFICATE OF SERVICE
Pursuant to Paragraph 124 of the Consent Decree in this action, I hereby
certify that copies of the foregoing Agreed Supplement to Consent Decree were
served on this date by first-class mail, postage prepaid, upon the following
individuals:
Nancy K. Peterson
Quarles & Brady LLP
411 East Wisconsin Avenue, Suite 2040
Milwaukee, WI 53202-4497
J.P. Causey Jr.
Vice President & Corporate Secretary
WTM I Company
c/o Chesapeake Corporation
1021 E. Gary Street
Box 2350
Richmond, VA 23218-2350
Patrick H. Zaepfel
Meyer, Unkovic & Scott, LLP
110 East King Street
Lancaster, PA 17602
David G. Mandelbaum
Ballard Spahr Andrews & Ingersoll, LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103-7599
Jerry L. Hancock
Assistant Attorney General
Wisconsin Department of Justice
P.O. Box 7857
Madison, WI 53707-7857
Matthew V. Richmond
Assistant United States Attorney
Eastern District of Wisconsin
U.S. Courthouse and Federal Building - Room 530
517 E. Wisconsin Avenue
Milwaukee, WI 53202
Richard Murawski
Associate Regional Counsel (C-14J)
U.S. Environmental Protection Agency
77 W. Jackson Blvd.
Chicago, IL 60604
Douglas P. Dixon and Joshua Epstein
U.S. Environmental Protection Agency
Ariel Rios Building - Mail Code 2272A
1200 Pennsylvania Avenue, N.W.
Washington, DC 20460
Dated: March 29, 2007 s/ Randall M. Stone
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