exv10w1



 




Exhibit 10.1



UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN




	 	 	 	 	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 
	UNITED STATES OF AMERICA

	 	 	 	 	 
	and the STATE OF WISCONSIN
	 	 	 	 	 
	 
	 	 	 	 	 
	Plaintiffs,

	 	 	CIVIL ACTION NO. 03-C-0949
	 	 
	 
	 	 	 	 	 
	     v.
	 	 	 	 	 
	 
	 	 	 	 	 
	P. H. GLATFELTER COMPANY

	 	 	The Honorable Lynn Adelman
	 	 
	and
	 	 	 	 	 
	WTM I COMPANY
	 	 	 	 	 
	(f/k/a Wisconsin Tissue Mills Inc.),
	 	 	 	 	 
	 
	 	 	 	 	 
	 Defendants.
	 	 	 	 	 
	 	 	 	 	 	 





SECOND AGREED SUPPLEMENT TO CONSENT DECREE




     The Plaintiffs and Defendants in this action — together with one additional
potentially responsible party, Menasha Corporation — (collectively the “Parties”) have entered
into this Second Agreed Supplement to Consent Decree (the “Second Agreed Supplement”) in order to
memorialize an agreement reached in accordance with Subparagraph 98.d of the existing Consent
Decree. As explained below, this Second Agreed Supplement sets forth an agreement to commit
additional funds for performance of the obligations under the Consent Decree, as envisioned by
Decree Subparagraph 98.d. A corrected version of an earlier Agreed Supplement was filed with the
Court on September 13, 2007. This Second Agreed Supplement augments, and does not supersede, the
earlier Agreed Supplement. The United States is filing this Second 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.§§ 9601-9675 (“CERCLA”). 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 removing contaminated sediment from OU 1 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 an opportunity to “deposit
additional funds in the Escrow Account, in order to avoid an Insufficiency Determination.”
The Plaintiffs have informally notified the Defendants that they believe the fund
balance remaining in the Escrow Account was likely to be insufficient to fund the completion
of the response work.



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     4. EPA
and WDNR have notified Menasha Corporation
(“Menasha”) that EPA and WDNR
believe that Menasha has potential CERCLA liability for the Site, including by issuing Menasha
formal notices of potential liability in 2003 and 2007. Menasha formerly owned and operated a
paper production facility in Menasha, Wisconsin, and wastewater from that facility was discharged
to OU 1.



     5. EPA and WDNR are considering proposing a Record of Decision Amendment for OU 1 that would
be similar to the Record of Decision Amendment for OUs 2-5 of the Site that EPA and WDNR finalized
in June 2007. The Parties also have begun discussing: (i) the potential need to amend the
existing Consent Decree in this case, if the OU 1 Record of Decision is amended; and (ii) the need
for interim arrangements, at a minimum, for continuation of the work in OU 1 under the existing
Record of Decision and Consent Decree, pending consideration of a possible Record of Decision
Amendment for OU 1. This Second Agreed Supplement memorializes certain of those interim
arrangements.



     6. The Parties have agreed to address a potential near-term shortfall in the Escrow Account as
set forth herein. In accordance with Consent Decree Subparagraph 98.d, the Parties hereby agree
that additional funds shall be deposited and managed in the Escrow Account established under the
Consent Decree, as follows:




     a. Menasha shall deposit an additional $7 million in the Escrow Account on or
before April 1, 2008. That total amount shall be deposited in the general account within
the Escrow Account (the “Existing Funds”), so that it can be distinguished from
the other funds in certain sub-accounts (i.e., the “Glatfelter
Sub-Account” and the “WTM I Sub-Account”).



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     b. The $7 million payment into the Escrow Account made pursuant to Subparagraph 6.a of
this Second Agreed Supplement shall be used to pay for performance of response activities in
OU 1, in accordance with the Consent Decree in this matter (and/or any Consent Decree
Amendment).




     c. The Defendants shall direct the Escrow Account manager to disburse funds to pay for
response work as follows: (i) first from the Existing Funds until the entire amount of the
Existing Funds, including all interest and income earned on the Existing Funds, have been
full expended, and then (ii) from the WTM I Sub-Account and the Glatfelter Sub-Account in
equal amounts, on a 50/50 basis. In the event Existing Funds are fully expended such that
the WTM I Sub-Account and Glatfelter Sub-Account must be accessed, but thereafter additional
monies also characterized as Existing Funds become available (as, for example, with the
Menasha payment required by Subparagraph 6.a. above), then all pending and future payments
will once again be drawn from the Existing Funds first until the entire amount of the
Existing Funds, including all interest and income earned on the Existing Funds, have been
fully expended again, and then from the WTM I Sub-Account and the Glatfelter Sub-Account in
equal amounts, on a 50/50 basis.




     d. The Parties hereby agree that the additional funds to be paid into the Escrow
Account under the preceding Subparagraphs of this Second Agreed Supplement fall within the
definition of the “OU1 Response Activities and Costs” specified by Consent
Decree Subparagraph 83.b.



     7. The Parties acknowledge that the Plaintiffs shall recognize that Menasha is entitled to
full credit, applied against its liabilities for response costs at the Site, for the $7



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million payment into the Escrow Account made pursuant to Subparagraph 6.a of this Second Agreed Supplement,
upon receipt of such payment by the Escrow Agent; provided, however, that the
credit ultimately recognized shall take into account and shall not include the amount of any
recoveries by Menasha of any portion of such payment from other liable persons, such as through a
recovery under Sections 107 and 113 of CERCLA, 42 U.S.C. §§ 9607 and 9613.



     8. Menasha hereby covenants not to sue and agrees not to assert any claims or causes
of action against the United States or the State with respect to the $7 million payment into the
Escrow Account made pursuant to Subparagraph 6.a of this Second Agreed Supplement, including, but
not limited to:




     a. 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), 107, 111, 112, 113 or any other provision of law;




     b. any claims against the United States (including any department, agency or
instrumentality of the United States) or State (including any department, agency or
instrumentality of the States) under CERCLA Sections 107 or 113, 42 U.S.C. §§ 9607 or 9613,
related to the $7 million payment into the Escrow Account made pursuant to Subparagraph 6.a
of this Second Agreed Supplement;




     c. any claims against the United States (including any department, agency or
instrumentality of the United States) or State (including any department, agency or
instrumentality of the States) under the United States Constitution, the Wisconsin
Constitution, the Tucker Act, 28 U.S.C. § 1491, the Equal Access to Justice Act, 28
U.S.C. § 2412, as amended, or at common law, related to the $7 million payment into



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the Escrow Account made pursuant to Subparagraph 6.a of this Second Agreed Supplement;




     d. any direct or indirect claim for disbursement from the Disbursement Special Account
established pursuant to the Consent Decree; or




     e. any direct or indirect claim for disbursement from the Fox River Site Special
Account.


This covenant not to sue shall not apply in the event that the United States or the State brings a
judicial action against or issues an order to Menasha for response actions or response costs at the
Site.




     9. 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
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 Second 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
	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	RONALD J. TENPAS	 	 
	 

	 	 	 	Acting Assistant Attorney General	 	 
	 

	 	 	 	Environment and Natural Resources Division
	 	 
	 
	 	 	 	 	 	 
	11/6/07
	 	 	 	/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	 	 
	 
	 	 	 	 	 	 
	10/31/07
	 	 	 	/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 Second 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	 	 
	 
	 	 	 	 	 	 
	11/6/07
	 	 	 	/s/ BRUCE BAKER	 	 
	 

Date

	 	 
	 	 

BRUCE BAKER
	 	 
	 

	 	 	 	Deputy Administrator, Division of Water	 	 
	 

	 	 	 	Wisconsin Department of Natural Resources	 	 
	 
	 	 	 	101 South Webster Street	 	 
	 

	 	 	 	Madison, WI 53703	 	 
	 
	 	 	 	 	 	 
	11/6/07
	 	 	 	/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 Second 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




	 
	10/28/07	 	Signature:
	/s/ John P. Jacunski	 
	Date  	 	Name (print): 	John P. Jacunski	 
	 	 	Title:
	Senior Vice President and CFO	 
	 	 	Address:
	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 



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Signature Page for Second 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



	 
	10/23/07	 	Signature:
	/s/ J. P. Causey Jr.	 
	Date  	 	Name (print): 	J. P. Causey Jr.	 
	 	 	Title:
	Vice
President	 
	 	 	Address:
	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 



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Signature Page for Second 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 MENASHA CORPORATION



	 
	10/24/07	 	Signature:
	/s/ James N. Sarosiek	 
	Date  	 	Name (print): 	James N. Sarosiek	 
	 	 	Title:	Vice President	 
	 	 	Address:
	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 




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