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Exhibit 10(i)
AGREEMENT BETWEEN THE STATE OF WISCONSIN AND CERTAIN
COMPANIES CONCERNING THE FOX RIVER
I. INTRODUCTION
This Agreement, effective as of January 31, 1997, is hereby
entered into by and among the following parties: Fort Howard Corporation, NCR
Corporation, Appleton Papers Inc., P.H. Glatfelter Company, Riverside Paper
Corporation, U.S. Paper Mills Corp., and Wisconsin Tissue Mills Inc.
("Companies"); and the State of Wisconsin ("State"), through the Wisconsin
Department of Natural Resources ("WDNR") and the Wisconsin Department of Justice
("Wisconsin DOJ"). The above listed parties shall be referred to as "the
Parties."
As set forth more fully below, the subject matter of this
Agreement involves claims for damages for injuries to, destruction of, or loss
of natural resources and/or services resulting from releases of polychlorinated
biphenyls ("PCBs") and other hazardous substances to the Lower Fox River for
which the Companies are alleged to be responsible, and plans, studies or
activities concerning the restoration or replacement of such injured resources
and/or services or the acquisition of the equivalent.
The Parties have executed this Agreement in order to
investigate claims that the United States and the State have asserted against
the Companies for natural resource damages and to pursue a negotiated settlement
of all claims of any kind whatsoever under either federal or state statute or
common law among the State, the United States, and the Companies relating to the
release of PCBs and other hazardous substances to the Lower Fox River
("Claims"). The Parties are entering into the negotiations in good faith and
agree to consider and to discuss all issues that any party deems necessary or
appropriate to a final resolution.
Except as otherwise specifically provided, this Agreement
shall not constitute, be interpreted, be construed or be used as: evidence of
any admission of liability, law or fact; a waiver of any right or defense; or an
estoppel against any party to this Agreement.
II. AGREEMENT OBJECTIVES
The Parties agree that the objectives of this Agreement are as follows:
(1) to begin certain plans, studies or activities in the Lower Fox River/Green
Bay area that will improve natural resources and will serve as a basis for
evaluating certain sediment management techniques; (2) to establish a one-year
"time
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out" from litigation, including tolling of limitations periods and forbearance
from litigation; (3) to establish a mechanism for collaborative natural resource
damage ("NRD") assessment planning or activities in the Lower Fox River/Green
Bay area; and (4) to establish a framework for negotiations, leading to
settlement of the Claims.
III. STATE AUTHORITY OVER NATURAL RESOURCES
A. Legal Framework
Under its Constitution and laws, the State is trustee for, and
has administrative jurisdiction over, all natural resources within its borders
("State Natural Resources"). Federal trustees under various federal statutes may
have co- trusteeship authority over certain resources.
Federal regulations provide that the state and federal
trustees may arrange to divide responsibility for implementing the natural
resources damages assessment if a lead authorized official is designated by
mutual agreement of all the trustees. 43 C.F.R. Section 11.32(a)(1). If the
trustees cannot reach consensus on the designation of the lead authorized
official, the state shall act as lead authorized official for the natural
resources delineated in 43 C.F.R. Section 11.32(a)(1)(ii)(D). Id.
Federal regulations further provide that if there is a
reasonable basis for dividing the assessment, natural resource trustees may act
independently and pursue separate assessments, actions or claims so long as the
claims do not overlap with those of other trustees. 43 C.F.R. Section
11.32(a)(1)(iii).
B. Attempts to Delineate Trusteeship Authority
In compliance with the letter and the spirit of the
regulations, the representatives of the State of Wisconsin, the U.S. Department
of the Interior, the U.S. Department of Justice, the National Oceanographic and
Atmospheric Administration, the Oneida Tribe of Indians of Wisconsin, and the
Menominee Indian Tribe of Wisconsin have met several times to attempt to
delineate the respective roles of the State and the asserted federal trustees in
NRD assessment planning or activities in the Lower Fox River/Green Bay area.
However, despite these multiple attempts, the State and the federal trustees to
date have been unable to reach agreement about whether the assessment should be
divided or who should be designated the lead authorized official.
C. Assertion of Authority by the State of Wisconsin over Natural
Resources in the Fox River/Green Bay Area
Because the State and the asserted federal trustees to date
have been unable to reach agreement on their respective roles, the State, in
compliance with 43 C.F.R. Section 11.32(a)(1), has
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asserted and will continue to assert trusteeship authority over all State
Natural Resources.
1. For the purposes of NRD assessment and claims
under any federal or state statute, including
restoration and compensation issues, the State
will act as lead authorized official pursuant to
43 C.F.R. Section 11.32(a)(1)(ii)(A) for all State
Natural Resources, except for resources located on
lands or waters subject to the administrative
jurisdiction of a federal agency.
2. The resources described in paragraph III.C.1 are
hereinafter collectively called "State-Lead
Resources."
3. Coordination. The State will coordinate with
other trustees as required by law.
4. Authority to Assess, Compromise, and Litigate. The
State has the authority independently to assess, to
compromise and to litigate its claims against the
Companies regarding the State Natural Resources over
which no other trustee has overlapping authority.
Regarding other State-Lead Resources, the State's
responsibility as lead authorized official includes,
pursuant to 43 C.F.R. Section 11.32(a)(1)(ii)(A), the
authority to act as final arbitrator of disputes if
consensus among the authorized officials cannot be
reached regarding the assessment of natural resource
damage claims.
IV. WORK WITH RESPECT TO STATE-LEAD RESOURCES
A. Actions of the Companies
The Companies will make available a total of $10 million,
consisting of a combination of work by the Companies and funding of State
activities, for the Interim Phase of the resource assessment and restoration
projects for the Fox River and Green Bay. Work on this Interim Phase shall
proceed as fast as reasonably possible. The State and the Companies have the
goal of finishing work on the Interim Phase by December 1, 1998. The Interim
Phase will include the work described in paragraphs 1-4 below:
1. Field-Scale Demonstration of Restoration Projects.
The Companies will make available a total of $8
million, consisting of a combination of work by
the Companies and funding of State activities, for
the following work:
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a. A portion of the design, implementation, and/or
monitoring of the Deposit N sediment restoration
project. At a minimum, the Companies will perform
monitoring of the Deposit N project. The Companies
understand that the State contemplates that a portion
of the costs of the Deposit N project will be paid by
funds held by the Fox River Coalition, which funds
include monies previously contributed by some of the
Companies. The Companies will not be obligated for
any additional contribution through the Fox River
Coalition for the Deposit N project.
b. The design, implementation, and monitoring of a
sediment restoration project below DePere Dam that is
designed to provide important information regarding
large-scale sediment restoration projects in the
Lower Fox River, the specific parameters of which are
to be worked out by separate technical discussions of
the Technical Committee. The Companies' aggregate
commitment for this work shall be in an amount not
less than $7.0 million.
c. The following two resource restoration projects. The
Companies' aggregate commitment for these projects
shall be in an amount to be agreed upon by the
parties:
i. Preserve Point Au Sable Wetlands. The
Companies will attempt to purchase and
transfer to public ownership as much of
Point Au Sable as possible and construct the
following: public access and a small parking
area for vehicular traffic (in a location
that limits human interference with the
interior wetland habitat), along with a
hiking trail, observation decks, a fishing
pier, and educational facilities such as
interpretive signage.
ii. Enhance 1,000 Islands Environmental Center
(City of Kaukauna). The Companies will seek
to implement the 1,000 Islands Environmental
Center's long-range plan of acquiring key
land parcels on the eastern perimeter of the
conservancy zone; upgrading a trail to a
paved, wheelchair-accessible surface; and
building a canoe launch and an observation
deck with a view of the pair of bald eagles
that have successfully
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nested in that location for the last six
years.
d. The plans submitted under Section IV.A.4 for
work to be done under Section IV.A.1 will
call for adequate monitoring to allow for
appropriate evaluation of these field-scale
demonstration projects for selection of
restoration methods. The Companies will not
be required to implement monitoring plans
until the State and the Companies jointly
approve those plans.
2. The Companies will conduct a collaborative
assessment of natural resource damages concerning
State-Lead Resources, including injury
identification and quantification and damages
estimation or scaling of compensatory restoration.
The State will direct, in consultation with the
Companies, the assessment work. This work shall
be coordinated with the Technical Committee
established under this Agreement. The Companies'
commitment under this paragraph will not exceed in
the aggregate $1 million in costs to the
Companies.
3. The Companies will perform technical work,
consistent with the activities and the oversight
described in Section IV.A.2., above, designed (a)
to evaluate existing models for PCB fate and
transport in the Fox River and Green Bay; (b) to
enhance the human and ecological risk assessment
information available to the trustees; and (c) to
support the identification and analysis of further
sediment management alternatives, all to promote
future decision making and claims resolution by
the trustees. The Companies' commitment under
this paragraph will not exceed in the aggregate $1
million in costs to the Companies.
4. The Companies will submit draft plans for the
performance of work under this Section IV.A on the
schedule set out below. The State will consider
those draft plans as called for by Section IV.B of
this Agreement, and may call for consideration of
any appropriate issues by the Technical Committee
established by Section IV.D of this Agreement.
The draft plan may be modified by agreement of the
Parties following discussions with the Technical
Committee prior to its approval by the State.
Upon approval of any plan by the State, the
Companies and State will implement that plan
according to its terms and schedule.
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a. The Companies will submit a plan for the
provision of funds and for the development of
a monitoring plan for the Deposit N project
within 60 days of receipt of notice from the
State that the State has completed conceptual
design of the rest of the Deposit N project,
and provision of that conceptual design to
the Companies.
b. The Companies will submit a plan for the work
and/or funding described in Section IV.A.1.b,
including, but not limited to, implementation
of monitoring by the Companies within 60 days
of receipt of notice from the State that the
Technical Committee has completed discussions
concerning a technical framework for that
project, and provision to the Companies of
that technical framework.
c. The Companies will submit a plan for the
design and implementation of the work called
for by Section IV.A.1.c within 75 days of
the effective date of this Agreement.
d. The Companies will submit a plan for the
work called for by Sections IV.A.2 and
IV.A.3 within 120 days of the effective date
of this Agreement, unless the State extends
that date to allow further discussion by the
Technical Committee of the technical
framework for that work pursuant to Section
IV.B.
5. The undertaking of all of the foregoing work is subject
to the receipt of any necessary permits and approvals.
B. Actions of the State of Wisconsin
The State, as lead authorized official for State-Lead
Resources, and the Companies will together cooperatively define the above
sediment management and restoration projects. They will attempt to agree as
expeditiously as possible on a technical framework for the projects, studies,
and analyses outlined above. The technical framework will serve as a basis for
developing scopes of work, work plans, budgets, and schedules.
C. Cost Recovery and Contribution
All of the work under this section shall be implemented in a
manner that will not prejudice the Companies' potential cost recovery and
contribution claims. The Parties intend that the Companies shall receive the
maximum protection available under the law against claims regarding matters
addressed by this Agreement. Expenditures by the Companies pursuant to this
Agreement will be credited against any final judgment or
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settlement obtained by the trustee(s) relating to claims for response actions or
costs or natural resource damages arising from releases to the Fox River.
D. Technical Committee
The State and the Companies will form a Technical Committee to
serve as a forum for the exchange of data, information and views concerning the
projects, studies and analyses to be undertaken and the technical issues
relating to State-Lead Resources or the State's Claims.
E. Terms of Payment
The Companies will pay funds committed in this Agreement in
the form of payment of invoices for goods and services purchased under work
plans approved according to the terms of this Agreement.
F. Monitoring and Assessment Activities by the Companies
All work performed by the Companies: (a) to monitor the
Deposit N project pursuant to Section IV.A.1.a, (b) to monitor the sediment
restoration project pursuant to Section IV.A.1.b, (c) to assess natural resource
damages pursuant to Section IV.A.2, and (d) to implement technical work pursuant
to Section IV.A.3 shall be subject to this Section IV.F.
1. All work shall be performed subject to the oversight of
the WDNR.
2. The Companies shall provide WDNR access to all data and
analyses developed by the Companies as they become
available.
3. WDNR may conduct any additional data collection or
analyses it may deem appropriate. WDNR shall provide
all such data or analyses to the Companies as they
become available.
4. The Parties shall endeavor to plan and to implement
their effort cooperatively to satisfy each Party's need
for data or analyses.
5. The State shall expedite the issuance of any permits
needed by the Companies to perform work under this
Agreement.
6. The plans for such work shall provide a budget for the
reasonable expenses of the WDNR in overseeing and
participating in that work. The budgeted amount shall be
included within the Companies' financial commitment for that
work.
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V. PUBLIC INFORMATION
Subject to Section VIII (Settlement Discussions/
Confidentiality), the Parties will undertake measures to inform and obtain input
from the Fox River Coalition and the public regarding activities conducted and
results obtained pursuant to the Agreement, as appropriate. Such activities may
include periodic public meetings.
VI. TOLLING/STANDSTILL PROVISIONS
The State contends that it presently has claims for relief or
causes of action (hereinafter "claims") against the Companies, and it has
initiated these proceedings and asserted these claims, under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Sections 9601 et. ("CERCLA"), and the Clean Water Act, 33 U.S.C.
Sections 1251 et seq., to seek damages, including assessment costs, for
injury to natural resources under its trusteeship in the Lower Fox River/Green
Bay area. The State also contends that it presently has claims against the
Companies under secs. 283.87 and 292.11, Wis. Stats., and the common law of
nuisance.
The Parties agree that the time from January 31, 1997, through
the date of termination of this Agreement will not be included in computing the
time limited by any statute of limitations or other limitation that applies or
may apply to claims referred to above, or to claims derivative of or arising out
of those referred to above ("Tolled Claims"), which the Parties may have against
each other, nor will that time period be considered on a defense of laches or
similar defense concerning timeliness of commencing a civil action, for the
recovery of damages or other relief on account of the Tolled Claims. Tolled
Claims shall not include claims to enforce, or claims related to the
implementation of, this Agreement. With respect to the Tolled Claims, any
statute of limitations shall be tolled during and for that period. Except as
specifically set forth in this paragraph, no other defense to any claim by the
State or by the Companies or any other person is waived or otherwise foregone
hereby, including, but not limited to, any statute of limitations defense or
similar defenses to claims that may be asserted by persons not a party to this
Agreement. Notwithstanding anything to the contrary in this Agreement, all
defenses and limitations of the Companies to the claims existing on the
effective date of this Agreement based on the expiration of any limitations
period or the passage of time shall be preserved, and neither this Agreement nor
work performed pursuant to this Agreement shall be construed to revive any claim
barred by a statute of limitations or the passage of time, or give rise to any
claim other than one to enforce performance in accordance with its terms. The
State reserves the right to assert that no statute of limitations, limitation,
defense of laches, or similar defense concerning timeliness of commencing a
civil action applies to the Tolled Claims.
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Except as otherwise agreed by the Parties or compelled by
court rule or judicial order to avoid loss of claims, no Party will initiate or
prosecute litigation against any other Party on any Tolled Claims during the
term of the Agreement.
It is the Parties' intent that all natural resource damages
assessment and planning activities conducted during the term of this Agreement
will be conducted collaboratively.
VII. MODIFICATION
This Agreement may be modified (including without limitation
the addition of new parties to the Agreement) by agreement of the Parties. All
modifications shall be in writing and signed by authorized representatives of
the Parties.
The Parties presently intend to modify this Agreement to
address natural resource damages assessment activities and claims of the federal
trustees, if the federal trustees will agree to enter into such a modified
agreement on mutually acceptable terms.
VIII. SETTLEMENT DISCUSSIONS/CONFIDENTIALITY
Using the analyses and studies to be conducted hereunder, the
Parties will attempt to negotiate a settlement of the Claims. Any Party may
attempt to negotiate a settlement of the Claims at any time during the term of
the Agreement. To encourage full and frank discussions, the Parties agree that
the substance of all settlement negotiations are confidential and that all
documents and information related to the negotiations shall not be released or
communicated to anyone except the attorneys, consultants and administrative
personnel involved in the negotiations and principals and their insurers and
indemnitors. The subsequent use of all communications or statements made in
connection with settlement negotiations will be subject to the Federal Rules of
Evidence, including Rule 408, and similar provisions under State evidentiary
law.
IX. NON-WAIVER OF CLAIMS, DEFENSES AND PRIVILEGE
Each party to this Agreement reserves the right to assert any
claim, defense, or matter of avoidance in any subsequent litigation among or
between any or all of the Parties hereto, and a party's execution of this
Agreement or participation in settlement negotiations will not in any way affect
such rights. By entering into this Agreement or participating in settlement
negotiations, no party waives any right, privilege, defense or claim that could
otherwise be asserted or raised with respect to the Claims or the subject matter
of this Agreement.
X. TERMINATION OF AGREEMENT
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This Agreement shall not be terminated prior to January 31,
1998, without agreement of all of the Parties. On or after that date, the
Agreement shall be terminated upon the occurrence of either of the following
events: (1) the Parties agree that the work set forth in Section IV of this
Agreement has been completed; or (2) 30 days after the State or the Companies as
a group provide written notice of intent to terminate this Agreement to the
other Parties. Termination of the Agreement will terminate all of each Party's
obligations under this Agreement, except for obligations under Section VIII;
provided, however, that if the Companies as a group terminate this Agreement
pursuant to clause (2) of the previous sentence, obligations under Section IV
will not terminate; provided further that the State will continue to exercise
its sovereign rights over State Natural Resources and to assert trusteeship
authority in accordance with Section III during the term of this Agreement and
otherwise during the course of good faith settlement negotiations regarding the
Claims.
XI. EFFECT ON SUCCESSORS, ASSIGNS, AND CORPORATE AFFILIATES
This Agreement will be binding on and shall inure to the
benefit of each Party and its successors, assigns, and corporate affiliates.
XII. COUNTERPARTS; CONSIDERATION; AUTHORITY
This Agreement may be signed in counterparts, which together
shall constitute one and the same instrument. The Parties acknowledge that the
covenants and forbearances under this Agreement constitute adequate and
sufficient consideration. The undersigned representative of each party to this
Agreement certifies that he or she is fully authorized to enter into the terms
and conditions of this Agreement, and to execute for and bind such party to this
Agreement.
XIII. STEERING COMMITTEE.
For purposes of implementing this Agreement, the Parties agree
to form a Steering Committee to address problems, to assess progress of the
Technical Committee, and to provide quarterly reports to the Parties and the
public on the implementation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement on
the day and year appearing above.
FOR THE STATE OF WISCONSIN:
By:________________________
WDNR
By:________________________
Wisconsin DOJ
FOR APPLETON PAPERS, INC.: FOR RIVERSIDE PAPER CORPORATION:
By:_______________________ By:_________________________
Print Name:______________ Print Name:_________________
FOR FORT HOWARD CORPORATION: FOR U.S. PAPER MILLS CORP.:
By:_______________________ By:_________________________
Print Name:_______________ Print Name:_________________
FOR NCR CORPORATION: FOR WISCONSIN TISSUE MILLS INC.:
By:_______________________ By:_________________________
Print Name:______________ Print Name:_________________
FOR P.H. GLATFELTER COMPANY:
By:_______________________
Print Name:_______________
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