Exhibit 10.1


 


IN THE UNITED STATES BANKRUPTCY
COURT

FOR THE DISTRICT OF DELAWARE


 


	
  In re:

  	
   

  	
  :    Chapter 11

  
	
   

  	
   

  	
  :    

  
	
  NORTHWESTERN CORPORATION,

  	
   

  	
  :    Case No. 03-12872 (CGC)

  
	
   

  	
   

  	
  :    

  
	
   

  	
  Debtor.

  	
   

  	
  :    Hearing Date:  

  
	
   

  	
   

  	
  :    Objection Deadline: 

  
	
   

  	
   

  	
  :    

  
	
   

  	
   

  	
  :    

  
				



 


DEBTOR’S MOTION FOR
ORDER APPROVING STIPULATION AMONG DEBTOR, CLARK FORK AND BLACKFOOT, LLC,
ATLANTIC RICHFIELD COMPANY, UNITED STATES, STATE OF MONTANA, AND THE
CONFEDERATED SALISH AND KOOTENAI TRIBES


 


NorthWestern Corporation (the “Debtor” or “NOR”), as
debtor and debtor-in-possession, hereby moves the Court, pursuant to Section
105(a) of Title 11 of the United States Code (the “Bankruptcy Code”) and
Rule 9019 of the Federal Rules of Bankruptcy Procedure, for the entry of an
order approving the stipulation among the Debtor, Clark Fork and Blackfoot, LLC
(“Clark Fork”), Atlantic Richfield Company, the United States, the State of
Montana and the Confederated Salish and Kootenai Tribes (the “Stipulation”). In
support of this Motion, the Debtor respectfully represents as follows:


 


JURISDICTION


 


1.             This
Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334. This
is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). Venue is proper
before this Court pursuant to 28 U.S.C. §§ 1408 and 1409.


 


BACKGROUND


 


2.             On
September 14, 2003 (the “Petition Date”), the Debtor filed a voluntary petition
for relief under Chapter 11 of the Bankruptcy Code. The Debtor continues
to operate its


 


 





















 


businesses and manage its properties as a debtor-in-possession pursuant
to Sections 1107 and 1108 of the Bankruptcy Code.


 


3.             No
request has been made for the appointment of a trustee or examiner in this
case. The Official Committee of Unsecured Creditors was appointed by the
Office of the United States Trustee on September 30, 2003.


 


4.             NOR is a publicly traded Delaware corporation which was
incorporated in 1923. NOR and its direct and indirect non-Debtor energy
subsidiaries comprise one of the largest providers of electricity and natural
gas in the upper Midwest and Northwest regions of the United States, serving
approximately 608,000 customers throughout Montana, South Dakota and Nebraska.[(1)


 


RELIEF REQUESTED


 


5.             By
this motion (the “Motion”), NOR seeks an order approving the Stipulation in
connection with the Debtor’s Motion for Order Pursuant to Bankruptcy Rule 9019
Approving Settlement Agreement Among Debtor, Clark Fork and Blackfoot, LLC and
Atlantic Richfield Company dated October 17, 2003 (Dkt. No. 256) (the “ARCO
Motion”). As set forth more fully in the Stipulation, the United States,
on behalf of U.S. Environmental Protection Agency and the U.S. Department
of the Interior, the State of Montana (the “State”) and the Confederated Salish
and Kootenai Tribes(2) (the “Tribes,” collectively with the United States
and the State, the “Government Parties”) agree to withdraw their objections to the
ARCO Motion, subject to the


 










(1) A more detailed overview is set forth in the Affidavit of
William M. Austin in Support of First Day Motions filed with the Court on
the Petition Date (Docket Entry No. 2).


 


(2) Under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq. (“CERCLA”), as
amended by the Superfund Amendments and Reauthorization Act of 1986, Pub.L. No.
99-49, 100 Stat. 1613, the Tribes are granted the authority and responsibility
to act as natural resource trustees.


 


 


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conditions set forth in, and the Court’s approval of, the Stipulation
and the Settlement Agreement (as defined below).


 


BASIS FOR RELIEF


 


6.             On
February 13, 2002, The Montana Power Company merged into The Montana Power
Company, LLC, a Montana Limited Liability Company (“MPC LLC”). At the
time of the merger, MPC LLC acquired the assets and liabilities of The
Montana Power Company’s natural gas and electric utility businesses, which
included a small, hydroelectric dam located approximately five miles southeast
of Missoula, Montana at the confluence of the Clark Fork River and Blackfoot
River at Milltown, Montana, known as the Milltown Dam (the “Dam” or “Milltown
Dam”).


 


7.             The
Milltown Dam was built in the period 1906 to 1907 to provide hydroelectric
power to a nearby lumber-mill. The Milltown Dam continues to be operated
as a run-of-the-river dam. Run-of-the-river means that outflow from the dam
equals inflow to the reservoir from the two rivers, to the extent possible. The
dam is presently comprised of five discrete sections with a total crest length
of 668 feet. These include a 220-feet-long spillway section, a
54-feet-long radial gate section, a 26-feet-long divider block, a 126-feet-long
intake/powerhouse structure, and a 244-feet-long non-overflow right abutment. Three
of the sections, the spillway, radial gate, and powerhouse, are capable of
passing water under normal circumstances. Each of these sections, however,
has a different outlet elevation. Along the full length of the spillway is
a flashboard structure equipped with 44 five-feet wide by eight-feet high slide
panel assemblies. Each of the slide panels can be raised and lowered
independently. The panels allow the reservoir to rise to the normal pool
level and provide control of spill over the spillway section of the Dam. The
radial gate is 42.5 feet wide by 16.75 feet high.


 


 


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8.             Historic
mine operations along the Clark Fork River and its tributary streams began in
the late nineteenth century. It was the common practice of these early
mine operators to place mine wastes in or adjacent to the streams. Mine
wastes may contain heavy metals, and the movement of the river waters caused
these mine wastes to move downstream and settle in the Dam reservoir. Approximately
7 million cubic yards of sediments contaminated with heavy metals now reside in
the Dam reservoir (the “Milltown Site”). The Anaconda Company was an owner
and operator of mine properties near Butte and Anaconda. The Atlantic Richfield
Company (“Atlantic Richfield”) acquired The Anaconda Company in 1977 and merged
with The Anaconda Company in 1981.


 


9.             In
1983, the Milltown Site was listed by the Environmental Protection Agency (“EPA”)
on the National Priorities List by publication in the Federal Register on
September 8, 1983, at 48 Fed. Reg. 40658 pursuant to the Comprehensive Environmental
Response Compensation and Liability Act of 1980, as amended (“CERCLA”). EPA
claims that contaminated sediments in the reservoir should be removed to
protect human health and the environment. EPA identified Atlantic Richfield
Company as one party that is potentially responsible for contamination in the
reservoir, based, in part, on its acquisition of and merger with The Anaconda
Company (“Anaconda”). Anaconda once owned and operated mine properties upstream
from the Milltown Site, and allegedly placed mine waste in areas where it could
flow downstream into the reservoir. EPA also named The Montana Power Company (“MPC”)
as a potentially responsible party (“PRP”) for the reservoir. MPC operated the
Dam in compliance with its Federal Energy Regulatory Commission (“FERC”)
license. As part of its FERC license compliance, MPC periodically dredged the
Milltown Dam reservoir, depositing


 


 


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sediments on the land around the reservoir. NOR assumed MPC’s PRP status
when NOR completed its acquisition of MPC LLC in February 2002.(3)


 


10.           On
November 15, 2002, NOR entered into that certain Environmental Liabilities
Support Agreement (the “Environmental Support Agreement”) (a copy of which is
annexed to the ARCO Motion as Exhibit A) with NorthWestern Energy,
LLC (“NOR LLC”), its wholly-owned subsidiary and operator of the Milltown
Dam.


 


11.           The
Environmental Support Agreement attempts to limit NOR’s maximum liability to
NOR LLC in respect of Environmental Liabilities (as such term is defined
in the Environmental Support Agreement) to a maximum cumulative amount of
$10 million. NOR LLC was subsequently renamed Clark Fork and
Blackfoot LLC.


 


12.           The
remedial action proposed by the EPA for the Milltown Site includes removal of
the spillway and radial gate section of the Milltown Dam, and related
reclamation of Milltown Project lands. Current estimates with respect to the
total cost of the remedy of the Milltown Site range from a low of approximately
$90 million to an amount in excess of $150 million, exclusive of any
state-imposed restoration plan and FERC license surrender costs. Since NOR, due
to its status as a PRP at the Milltown Site, is subject to CERCLA joint and
several liability, NOR could be exposed to funding 100% of the remedy costs.


 


13.           On
October 17, 2003, the Debtor filed the ARCO Motion requesting entry of an order
approving the settlement agreement among the Debtor, Clark Fork and Atlantic
Richfield Company (the “Settlement Agreement”). Under the Settlement Agreement,
the Debtor would pay Atlantic Richfield a sum of money and in exchange Atlantic
Richfield would arrange to


 










(3) Following NOR’s acquisition of MPC LLC, NOR changed the name
of this acquired entity to NorthWestern Energy, LLC.


 


 


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remove the spillway and radial gate and remove or otherwise respond to
contaminated sediments associated with the Milltown Dam. The terms of the
Settlement Agreement are set forth in detail in the ARCO Motion and the Settlement
Agreement.(4) On January 8, 2004, Atlantic Richfield Company filed its
proof of claim, Claim No. 488, with the Debtor’s claims agent, asserting a
claim in an unliquidated amount, based on remedial costs estimated to be
between $104,200,000 and $164,200,000.  That claim would be resolved by
the Settlement Agreement, consistent with the Stipulation.


 


14.           In
November 2003, the United States and the State each filed objections to the
Settlement Agreement (the “Objections”). The Objections asserted, inter alia: (a) that since the Government Parties did not
participate in the Settlement Agreement, even though the Government Parties had
claims and rights against the Debtor that were allegedly affected by the
Settlement Agreement, the Settlement Agreement should not be approved; (b) that
the Settlement Agreement implied that the Debtor’s liability to the Government
Parties is limited to no more than $2.5 million when its liability had in fact
not yet been determined or capped as to such parties; and (c) that the Debtor
and Clark Fork are not separate entities but are alter-egos of each other.


 


15.           On
April 14, 2004, the United States filed its proof of claim, Claim No. 1054,
with the Debtor’s claims agent in an amount in excess of $100,000,000 which
amount includes at least $14,053,436.40 for unreimbursed response costs and
approximately $95,000,000 in connection with additional response activities and
the cost of implementing additional response actions under CERCLA. On April 8,
2004, the State filed its proof of claim, Claim No. 1047,


 










(4) A copy of the Settlement Agreement is attached to the ARCO
Motion as Exhibit B. Any capitalized terms used herein but not otherwise
defined shall have the meaning ascribed to such terms in the Stipulation.


 


 


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with the Debtor’s claims agent in an approximate amount of
$135,280,000.00. On April 12, 2004, the Tribes filed their proof of claim,
Claim No. 1053, with the Debtor’s claims agent in the amount of $60,000,000. The
United States, the State, and the Tribes reserved their rights to amend their
claims.


 


16.           Prior
and subsequent to the filing of the Objections, the Government Parties engaged
in negotiations for a resolution of their natural resource restoration claims (“Restoration
Claims”) and other rights against the Debtor pertaining to the Milltown Site. The
parties have reached a framework for resolving these claims and rights and
intend to continue negotiations to finalize the specific terms of settlement as
part of the Consent Decree (as defined in the Stipulation) to be entered by the
U.S. District Court for the District of Montana.


 


THE STIPULATION


 


17.           Pursuant
to the terms of the Stipulation (a copy of which is annexed hereto as Exhibit A),
the Debtor, with some anticipated funding from Clark Fork, shall contribute
$3.9 million for restoration work within a certain area of the Milltown Site
known by the parties as the “Project Area.” The $3.9 million shall be paid to
the State, which will complete certain restoration work at the Milltown Site as
the lead natural resource trustee for the Milltown Site. As more fully
described in the Stipulation, of the $3.9 million for restoration work, $2.5
million shall be obtained from the $2.5 million set aside in the Settlement Agreement
to partially satisfy the Restoration Claims and rights of the State and Tribes.
The remaining $1.4 million contribution is anticipated to be obtained through
the proceeds of an insurance premium refund and the sale of certain lands in
and around the Milltown Site owned by Clark Fork. In the event that the
insurance premium refund and the sale of certain lands owned by Clark Fork does
not satisfy the $1.4 million contribution, any remaining funds needed may be
obtained from the sale


 


 


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of specific Clark Fork water rights. Clark Fork shall also offer the
State, or the State’s designee, Clark Fork’s remaining Milltown Site land
holdings and water rights which are not sold in accordance with the Stipulation
within two and one half years following the Effective Date of the Consent
Decree for the Milltown Site, plus ten days, as a contribution toward the
restoration work outside of the Project Area, and as partial consideration for
liability releases to be defined in the Consent Decree for the Milltown Site.


 


18.           The
Debtor shall make the payment of $2.5 million, described in Paragraph 17
above, to the State and shall make the $7.5 million payment under the
Settlement Agreement to Atlantic Richfield (notwithstanding any provision in
the Settlement Agreement to the contrary) on the same day, which day shall be
within thirty (30) days after the effective date of the Consent Decree (as
defined in the Stipulation).


 


19.           In
the event the insurance premium refund and the sale of certain Clark Fork
assets are insufficient to satisfy the $1.4 million contribution as described
in Paragraph 17 above, the Debtor shall guarantee payment of this contribution.


 


20.           In
addition, under the Stipulation, the Debtor and/or Clark Fork shall pay $50,000
in satisfaction of all of their historical mitigation obligations arising from
demolition of FERC-licensed structures at the Milltown Reservoir Site in
accordance with the terms and conditions established in the Consent Decree for the
Milltown Site.(5) FERC is not a party to the Stipulation, however, and
will not be a party to the Consent Decree. While FERC is not a party to the
Stipulation, the Stipulation, Settlement Agreement and any Consent Decree
contemplate entry of a FERC order addressing the Debtor’s obligations arising
from the FERC-licensed structures at


 










(5) While the EPA’s initial proposed remedy (announced to the
public in April 2003) did not involve removal of the Milltown Dam powerhouse,
subsequent public hearings disclosed a desire on the part of the public to
remove the entire Milltown Dam generation facility. As a result, ARCO, NOR and
the Government Parties have agreed to a modification of the proposed remedy to
incorporate removal of he Milltown Dam powerhouse.


 


 


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the Milltown Site. The Consent Decree for the Milltown Site will
incorporate the FERC’s order issued in response to the Clark Fork’s FERC
Operating License Surrender Application.


 


21.           On
or before confirmation of the Debtor’s plan of reorganization,(6) the
Debtor shall assume its obligations under its executory contract with Five
Valleys Land Trust involving the sale of the Alberton Gorge property along the
Clark Fork River in northwestern Montana, and its ultimate transfer to the
State. The Debtor shall not reject or disclaim this property sale contract in
bankruptcy and will grant, without additional payment, such extensions of the
executory contract to Five Valleys Land Trust as are reasonably necessary to
finalize and close this transaction.


 


22.           In
addition to the provisions described above, the parties to the Stipulation
agree that the Settlement Agreement shall be construed and operate as follows:


 


                a.             The Debtor’s contribution to the
State for implementation of the Government Parties’ restoration activities in
the Project Area shall be $2.5 million; this amount is separate and apart from
the Debtor’s $1.4 million guarantee of additional funding to the State for such
restoration, as set forth in detail in Paragraph 17 above and Paragraph 6(C) of
the Stipulation, and the consideration to be provided by Clark Fork by way of
offering to the State, or the State’s designee, Clark Fork’s remaining Milltown
Dam land holdings and water rights which are not sold in accordance with the
Stipulation within two and one half years following the Effective Date of the
Consent Decree for the Milltown Site, plus ten days, as a contribution toward
the restoration work outside of the Project Area, and as partial consideration
for liability releases to be defined in the Consent Decree for the Milltown
Site.


 










(6) On March 11, 2004, the Debtor filed its proposed plan of
reorganization with the Court (the “Plan”).


 


 


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                b.             The contribution to be paid by the
Debtor to Atlantic Richfield under the Settlement Agreement shall be the
remaining $7.5 million.


 


                c.             The $500,000 monthly payments to be
paid by the Debtor into the $10.0 million escrow account under the Settlement
Agreement shall be paid in alternating $500,000 installments, with the first
installment being paid into an escrow fund for the State’s benefit, the second
installment being paid into an escrow account for Atlantic Richfield’s benefit,
and the payments alternating between those accounts until the full $2.5 million
payment has been made into the escrow account for the State. Unless otherwise
ordered by this Court, the Debtor shall continue making such payments until it
has sufficiently funded its monetary obligations to the State and Atlantic
Richfield under this Stipulation and the Settlement Agreement. Notwithstanding
any provision in the Settlement Agreement to the contrary, the Debtor shall
begin to make these monthly payments within thirty (30) days of the Court’s approval
of this Stipulation.


 


23.           Notwithstanding
any provision in the Settlement Agreement to the contrary, Atlantic Richfield
shall instruct American Specialty Lines Insurance Company to designate the
Debtor and Clark Fork as additional insureds under coverage A of the policy of
insurance issued to Atlantic Richfield on June 30, 2003.


 


24.           Upon
Court approval of the Stipulation, the Government Parties withdraw their
objections to the Settlement Agreement, consistent with the Stipulation, and to
the Debtor’s ARCO Motion, subject to the Stipulation. It is contemplated that
after entry of the Consent Decree for the Milltown Site and upon said Consent
Decree becoming final and entry of a final FERC order, the United States and
the State shall withdraw their respective claims relating to the Milltown Site
in the Debtor’s bankruptcy proceeding.


 


 


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25.           In
the event, the parties fail to obtain judicial approval of this Stipulation and
the Settlement Agreement, or if the Consent Decree for the Milltown Site does
not become fully effective pursuant to the conditions in the Consent Decree,
then neither the Debtor nor Atlantic Richfield shall use the Stipulation, the
Settlement Agreement or the Court’s approval of either document as a basis for
claims of estoppel or waiver of any right, claim, argument, or objection
asserted by the Government Parties.


 


26.           In
the event that (a) the Consent Decree is not entered after it is lodged with
the court; (b) the Consent Decree does not become fully effective pursuant to
the conditions in the Consent Decree; or (c) after entry of the Consent Decree,
the Consent Decree is overturned on appeal and subsequent negotiations are
required, and any of the parties to this Stipulation assert that the
negotiations have irretrievably broken down then the Settlement Agreement shall
be deemed void ab initio, and all funds in the escrow account shall continue to
be held in trust in the escrow account pending further order of this Court.


 


27.           Furthermore,
in the event that (a) the Consent Decree is not entered after it is lodged with
the court; (b) the Consent Decree does not become fully effective pursuant to
the conditions in the Consent Decree; or (c) after entry of the Consent Decree,
the Consent Decree is overturned on appeal and subsequent negotiations are
required, and any of the parties to this Stipulation assert that the
negotiations have irretrievably broken down then the Government Parties may
assert their prior objections and other objections to the Settlement Agreement
or any similar agreement, and all of their claims, rights and arguments
regarding the Settlement Agreement shall be preserved.


 


28.           In
the event that the Debtor’s Plan is confirmed and becomes effective before a
Consent Decree is entered or becomes fully effective, and if such Consent
Decree subsequently


 


 


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is not entered or does not become fully effective, then all of the
Government Parties’ rights, claims, arguments and objections shall be
preserved.


 


LEGAL BASIS FOR RELIEF


 


29.           This
Court may authorize the Debtor to resolve the objections filed by the
Governmental Parties and the environmental liability claims with Atlantic
Richfield on the basis set forth in the Stipulation and Settlement Agreement. A
compromise that involves a disposition of property of the estate must be
approved by the Bankruptcy Court if it is outside the ordinary course of
business. See 11 U.S.C. § 363(b) ; Myers
v. Martin (In re Martin), 91 F.3d 389, 394 (3d Cir. 1996). Bankruptcy
Rule 9019 sets forth the standard for Bankruptcy Court approval of
compromises, providing that “[o]n motion by the [debtor-in-possession] and
after notice and a hearing, the court may approve a compromise or settlement.” Bankruptcy
Rule 9019(a). “[T]he decision whether to approve a compromise under
Rule 9019 is committed to the sound discretion of the Court, which must
determine if the compromise is fair, reasonable, and in the interest of the
estate.” In re Louise’s, Inc., 211 B.R. 798, 801 (D. Del. 1997)
(declining to approve settlement found to be sub  rosa plan); see  In re Marvel Entertainment Group, Inc., 222 B.R.
243 (D. Del. 1998) (proposed settlement held in best interest of the estate).


 


30.           The
“best interest” test requires the Debtor to show that the settlement or
compromise is “fair and equitable.” In re Woodson, 839 F.2d 610, 620
(9th Cir. 1988); see also  Protective Comm. for
Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414,
424 (1968); Tindall v. Mavrode (In re Mavrode), 205 B.R. 716, 721
(Bankr. D.N.J. 1997).


 


31.           In
determining whether a proposed settlement is fair and equitable, the Court
should consider “(a) the probability of success in the litigation; (b) the
difficulties, if any, to be encountered in the matter of collection;
(c) the complexity of the litigation involved, and the


 


 


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expense, inconvenience and delay necessarily attending it; (d) the
paramount interest of the creditors. . . “. Woodson, 839 F.2d at
620; In re Martin, 91 F.3d at 393 (3d Cir. 1996); see also
In re Columbia Gas Sys., Inc., Nos. 91-803, 91-804, 1995 WL 404892, at
*1 (Bankr. D. Del. June 16, 1995) (“Relevant factors to consider in evaluating
the settlement include the probability of success in the claims litigation,
complexity of litigation, expense, inconvenience and delay attending to the
litigation, interests of creditors, and the extent to which the settlement is
truly the product of arm’s length bargaining and not of fraud and collusion.”).


 


32.           The
Debtor submits that upon approval of the Stipulation, Settlement Agreement,
entry of a final Consent Decree for the Milltown Site and FERC order issued in
response to the Clark Fork’s FERC Operating License Surrender Application, the
Debtor’s financial liability to Atlantic Richfield and the Governmental Parties
will be limited satisfying the standards set forth above.


 


33.           Consistent
with the terms of the Settlement Agreement and the Stipulation and upon entry
of a final Consent Decree for the Milltown Site and FERC order, the Debtor will
be liquidating any remaining financial exposure to the Government Parties at
the Milltown Site under relevant statutes.


 


34.           Consistent
with the Environmental Support Agreement, the Debtor will continue to comply
with any remaining FERC administrative orders and dam safety and operating
requirements relating to ongoing site operations, including dam operation,
which shall continue until the removal of the dam and related structures is
completed.


 


35.           Further,
the Stipulation and the Settlement Agreement provide a mechanism to resolve
actual and potential disputes and controversies that, if permitted to continue,
could involve time-consuming and expensive proceedings for the Debtor. Pursuant
to the Stipulation


 


 


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and the Settlement Agreement, the Government Parties have agreed to
work with the Debtor in good faith and on an expedited basis to obtain a final
Consent Decree for the Milltown Site and FERC order. Absent approval of the
Settlement Agreement and Stipulation, the Debtor could be forced to engage in
protracted litigation with Atlantic Richfield and the Governmental Parties and
face potential financial exposure far in excess of $10 million.


 


36.           Because
of the importance of the Settlement Agreement and the Stipulation to NOR and
the bankruptcy estate, NOR is requesting Court approval at this time in order
to provide assurance that it is authorized to rely on and proceed with the
Settlement Agreement and the Stipulation and the final negotiations of a
Consent Decree for the Milltown Site and FERC order.


 


37.           The
Stipulation is in the estate’s best interest because it resolves the
Governmental Parties objections to the Settlement Agreement which resolves all
claims between Atlantic Richfield and NOR. This, in turn, will save NOR
substantial administrative expenses (including attorneys’ fees) and preserves
the assets of the estate.


 


38.           Accordingly,
the Debtor submits that there is more than sufficient business justification
for Court approval of the Stipulation. The Debtor will benefit greatly from
resolving the dispute with Atlantic Richfield and the Governmental Parties in
an expeditious and cost-effective manner. The Debtor therefore believes that
the Stipulation is appropriate in light of the relevant factors and its terms
should be approved.


 


NOTICE


 


39.           Notice
of this Motion has been provided to: (i) the Office of the United States
Trustee; (ii) counsel for the Debtor’s Pre-Petition Lenders;
(iii) counsel for the Debtor’s Post-Petition Lenders; (iv) counsel
for the Official Committee of Unsecured Creditors; (v) the


 


 


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Securities and Exchange Commission; (vi) the Federal Energy Regulatory
Commission; (vii) the Montana Public Service Commission; (viii) the
South Dakota Public Utilities Commission; (ix) the Nebraska Public Service
Commission; (x) counsel for Atlantic Richfield; (xi) the
Environmental Protection Agency; (xii) the United States Department of
Justice; (xiii) the Montana Department of Environmental Quality; (xiv) the
State of Montana Department of Justice, Natural Resource Damage Program; (xv)
counsel for the Confederated Salish and Kootenai Tribes; and (xvi) all
parties that have requested special notice in this Chapter 11 case
pursuant to Bankruptcy Rule 2002. In light of the nature of the relief
requested herein, the Debtor submits that no other or further notice is
required.


 


PRIOR RELIEF


 


40.           No
previous motion for the relief requested herein has been made to this or any
other court.


 


[CONCLUDED ON NEXT PAGE]


 


 


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WHEREFORE, the Debtor respectfully requests that the
Court enter an order (i) approving the Stipulation in substantially the
form annexed hereto, (ii) authorizing the Debtor to execute any documents
and take any action necessary or desirable to consummate the Stipulation, and
make the payments into escrow as described therein and (iii) granting such
other and further relief as is just and proper.


 


 


	
  Dated: 

  	
  Wilmington, Delaware

  	
   

  
	
   

  	
  May      , 2004

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Respectfully submitted,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PAUL, HASTINGS, JANOFSKY & WALKER LLP

  
	
   

  	
   

  	
  600 Peachtree Street

  
	
   

  	
   

  	
  Suite 2400

  
	
   

  	
   

  	
  Atlanta, GA 30308

  
	
   

  	
   

  	
  Jesse H. Austin, III

  
	
   

  	
   

  	
  Karol K. Denniston

  
	
   

  	
   

  	
  Telephone: (404) 815-2400

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  And

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GREENBERG TRAURIG, LLP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Scott D. Cousins (No. 3079)

  
	
   

  	
   

  	
  Victoria Watson Counihan (No. 3488)

  
	
   

  	
   

  	
  William E. Chipman, Jr. (No. 3818)

  
	
   

  	
   

  	
  The Brandywine Building

  
	
   

  	
   

  	
  1000 West Street, Suite 1540

  
	
   

  	
   

  	
  Wilmington, DE 19801

  
	
   

  	
   

  	
  Telephone: (302) 661-7000

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Co-Counsel for the Debtor and
  Debtor-in-Possession

  



 


 


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EXHIBIT A


 


[Stipulation]