Exhibit 10.01


 


IN THE UNITED
STATES BANKRUPTCY COURT


FOR THE DISTRICT
OF DELAWARE


 


 


	
   

  	
   

  	
   

  
	
   

  	
  )

  	
   

  
	
  In re:

  	
  )

  	
  Chapter 11

  
	
   

  	
  )

  	
   

  
	
  W.R. GRACE &
  CO., et al.,(1)

  	
  )

  	
  Case No. 01-01139
  (JFK)

  
	
   

  	
  )

  	
  (Jointly Administered)

  
	
  Debtors.

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  



 


 


SETTLEMENT AGREEMENT


 


I.  BACKGROUND


 


                A.    On or about April 2, 2001, W.R. Grace & Co. and
certain affiliated companies (collectively the “Debtors”) filed a petition for reorganization
under Chapter 11 of Title 11 of the United States Code, 11 U.S.C. § 101, et
seq., as amended (the “Bankruptcy Code”).


 






(1)          The Debtors consist of the following 62 entities: W.
R. Grace & Co. (f/k/a Grace Specialty Chemicals, Inc.), W. R.
Grace & Co.-Conn., A-1 Bit & Tool Co., Inc., Alewife
Boston Ltd., Alewife Land Corporation, Amicon, Inc., CB Biomedical, Inc.
(f/k/a Circe Biomedical, Inc.), CCHP, Inc., Coalgrace, Inc.,
Coalgrace II, Inc., Creative Food ‘N Fun Company, Darex Puerto Rico, Inc.,
Del Taco Restaurants, Inc., Dewey and Almy, LLC (f/k/a Dewey and Almy
Company), Ecarg, Inc., Five Alewife Boston Ltd., G C Limited Partners I, Inc.
(f/k/a Grace Cocoa Limited Partners I, Inc.), G C Management, Inc.
(f/k/a Grace Cocoa Management, Inc.), GEC Management Corporation, GN
Holdings, Inc., GPC Thomasville Corp., Gloucester New Communities Company, Inc.,
Grace A-B Inc., Grace A-B II Inc., Grace Chemical Company of Cuba, Grace
Culinary Systems, Inc., Grace Drilling Company, Grace Energy Corporation,
Grace Environmental, Inc., Grace Europe, Inc., Grace H-G Inc., Grace
H-G II Inc., Grace Hotel Services Corporation, Grace International Holdings, Inc.
(f/k/a Dearborn International Holdings, Inc.), Grace Offshore Company,
Grace PAR Corporation, Grace Petroleum Libya Incorporated, Grace Tarpon
Investors, Inc., Grace Ventures Corp., Grace Washington, Inc., W. R.
Grace Capital Corporation, W. R. Grace Land Corporation, Gracoal, Inc.,
Gracoal II, Inc., Guanica-Caribe Land Development Corporation, Hanover
Square Corporation, Homco International, Inc., Kootenai Development
Company, L B Realty, Inc., Litigation Management, Inc. (f/k/a GHSC
Holding, Inc., Grace JVH, Inc., Asbestos Management, Inc.),
Monolith Enterprises, Incorporated, Monroe Street, Inc., MRA Holdings
Corp. (f/k/a Nestor-BNA Holdings Corporation), MRA Intermedco, Inc. (f/k/a
Nestor-BNA, Inc.), MRA Staffing Systems, Inc. (f/k/a British Nursing
Association, Inc.), Remedium Group, Inc. (f/k/a Environmental
Liability Management, Inc., E&C Liquidating Corp., Emerson &
Cuming, Inc.), Southern Oil, Resin & Fiberglass, Inc., Water
Street Corporation, Axial Basin Ranch Company, CC Partners (f/k/a Cross Country
Staffing), Hayden-Gulch West Coal Company, H-G Coal Company.


 


 


 


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                B.    On or about March 28, 2003, the United States, on behalf of
the Environmental Protection Agency (the “EPA”) and other federal agencies,
filed Proofs of Claim against W.R. Grace & Co. - Conn. (Claim Number
9634) and Kootenai Development Company (Claim Number 9635).


 


                C.    The Proofs of Claim assert claims for, among other things, the
unreimbursed environmental response costs the United States Environmental
Protection Agency (“EPA”) has incurred and will incur in the future at the
Libby Asbestos Site (as defined below) located in and around Libby, Montana,
pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. W.R. Grace owned and
operated a vermiculite mine and vermiculite processing facilities in and near
Libby from 1963 to 1990.  The vermiculite
ore contained impurities including amphibole asbestos.  Vermiculite and asbestos particles have been
found in various locations in and around Libby.


 


                D.    The United States’ claim for the response costs EPA had incurred
and would  incur in the future at the
Libby Asbestos Site was the subject of litigation in the District of
Montana.  On August 26, 2003, the
court ruled that the United States was entitled to response costs incurred
through December 31, 2001 in the amount of $54,527,081.11 (from W. R.
Grace & Co.-Conn.) and $5,213,458 (from Kootenai Development Company),
pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a).  United States v. W. R. Grace &
Co.-Conn., 280 F. Supp.2d 1149, 1187-88 (D. Mont. 2003).  The Court of Appeals for the Ninth Circuit
affirmed the judgment of the District Court. 
429 F.3d 1224 (9th Cir. 2005). 
The Supreme Court denied certiorari. 
127 S. Ct. 379 (2006).  The United
States has provided Debtors with documentation for $108,048,220.89 in
additional EPA response costs incurred at the Libby Asbestos Site from January 1,
2002 to December 31, 2005.  EPA has
incurred additional response costs since that date, and will continue to incur
response costs in the future.


 


 


 


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                E.     This Settlement Agreement addresses the United States’ CERCLA
claim regarding the Libby Asbestos Site, with the exception of OU-3 (as defined
herein).  Other environmental claims are
addressed in the Settlement Agreement resolving the United States’ Proofs of
Claim Regarding Certain Environmental Matters, submitted to the Court on December 19,
2007 (Docket Nos. 17651 and 17670).


 


                NOW, THEREFORE, in consideration
of the mutual promises contained herein, and for other good and valuable
consideration receipt of which is hereby acknowledged;


 


                IT IS HEREBY STIPULATED and
agreed to by and between the parties hereto, subject to approval by the
Bankruptcy Court, as follows:


 


II.  JURISDICTION


 


                1.  The Court has jurisdiction over the subject
matter of this action pursuant to 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. §§
9607 and 9613(b) and also has personal jurisdiction over Debtors.


 


III.  PARTIES BOUND


 


                2.  This Settlement Agreement is binding upon the
United States and upon Debtors and their successors and assigns.  Any change in ownership or corporate or other
legal status,


 


 


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including but not
limited to, any transfer of assets or real or personal property, shall in no
way alter the status or responsibilities of Debtors under this Settlement
Agreement.


 


IV.   DEFINITIONS


 


                3.  Unless otherwise expressly provided herein,
terms used in this Settlement Agreement 
that are defined in CERCLA or in regulations promulgated under CERCLA
shall have the meanings assigned to them in CERCLA or in such regulations.  Whenever terms listed below are used in this
Settlement Agreement, the following definitions shall apply:


 


                        a.     “ATSDR” shall
mean the United States Agency for Toxic Substance and Disease Registry and any
successor departments, agencies or instrumentalities of the United States.


 


                        b.     “CERCLA” shall mean the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended, 42
U.S.C. § 9601, et seq.


 


                        c.     “Court” shall mean the United States
Bankruptcy Court for the District of Delaware, which has jurisdiction over the
subject matter of this action and personal jurisdiction over Debtors.


 


                        d.     “Day” shall mean a calendar day.  In computing any period of time under this
Settlement Agreement, 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.


 


                        e.     “Debtors” shall mean the entities listed in
Footnote 1.


 


                        f.      “DOJ” shall mean the United States
Department of Justice and any successor departments, agencies or
instrumentalities of the United States.


 


 


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                        g.     “EPA” shall mean the United States
Environmental Protection Agency and any successor departments, agencies or
instrumentalities of the United States.


 


                        h.     “EPA Hazardous Substance Superfund” shall
mean the Hazardous Substance Superfund established by the Internal Revenue
Code, 26 U.S.C. § 9507.


 


                        i.      “Final Order” shall mean an order or
judgment of the Court, or other court of competent jurisdiction with respect to
the subject matter, which has not been reversed, stayed, modified or amended,
and as to which the time to appeal or seek certiorari has expired and no appeal
or petition for certiorari has been timely taken, or as to which any appeal
that has been taken or any petition for certiorari that has been or may be
filed has been resolved by the highest court to which the order or judgment was
appealed or from which certiorari was sought.


 


                        j.      “Future Response Costs” shall mean all
costs, including but not limited to direct and indirect costs, that EPA, ATSDR,
or DOJ on behalf of EPA incur and pay at or in connection with amphibole
asbestos contamination at the Site after December 31, 2005, with the
exception of costs incurred or paid at or in connection with OU-3.


 


                        k.     “Interest” shall mean interest at the rate
specified for interest on investments of the EPA Hazardous Substance Superfund
established by 26 U.S.C. § 9507, compounded annually on October 1 of each
year, in accordance with 42 U.S.C. § 9607(a). 
The applicable rate of interest shall be the rate in effect at the time
the interest accrues.  The rate of
interest is subject to change on October 1 of each year.


 


                        l.      “Operable
Unit 3” or “OU-3” shall mean property in or around the Zonolite Mine owned by
W. R. Grace or Grace-owned subsidiaries (excluding OU-2) and any area
(including any structure, soil, air, water, sediment or receptor) impacted by
the release and/or 


 


 


5

















 


release and subsequent migration
of hazardous substances and/or pollutants or contaminants from such property,
including, but not limited to, the mine property, the Kootenai River and the
sediments therein, Rainey Creek, Rainey Creek Road and areas in which tree bark
is contaminated with such hazardous substances and/or pollutants and
contaminants.


 


                        m.    “Paragraph” shall mean a portion of this
Settlement Agreement identified by an Arabic numeral or an upper or lower case
letter.


 


                        n.     “Parties” shall mean the United States and
Debtors.


 


                        o.     “Past Response Costs” shall mean all costs,
including but not limited to direct and indirect costs, that EPA, ATSDR, or DOJ
on behalf of EPA has paid at or in connection with the Site through December 31,
2005, with the exception of costs incurred or paid at or in connection with
OU-3.


 


                        p.     “Plaintiff” shall mean the United States.


 


                        q.     “Section” shall mean a portion of this
Settlement Agreement identified by a Roman numeral.


 


                        r.      “Settlement Agreement” shall mean this
Settlement Agreement.


 


                        s.     “Site” or “Libby Asbestos Site” shall mean
the Zonolite Mine and all areas (including any structure, soil, air, water,
sediment or receptor) in and near Lincoln County, Montana, that have been
contaminated by natural or human caused migration of hazardous substances
and/or pollutants or contaminants from the Zonolite Mine.  For purposes of this Settlement Agreement,
the Site shall not include Operable Unit 3.


 


                        t.      “United States” shall mean the United
States of America, including its departments, agencies and instrumentalities.


 


 


 


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V.  STATEMENT OF PURPOSE


 


                4.  By entering into this Settlement Agreement,
the mutual objective of the Parties is for Debtors to make a cash payment to
address their liability for Past Response Costs and Future Response Costs at
the Libby Asbestos Site with the exception of OU-3 Costs as provided in the
Covenant Not to Sue by the United States in Section VIII and subject to
the Reservations of Rights by United States in Section IX.


 


VI.  PAYMENT OF RESPONSE COSTS


 


                5.  Within 30 days of entry of a Final Order
approving this Settlement Agreement, Debtors shall pay to the EPA Hazardous
Substance Superfund $250,000,000 for Past Response Costs and Future Response
Costs, plus an additional sum for Interest on that amount calculated from the
date when the United States submits the response to comments or notification
that no comments were received in accordance with Paragraph 35 of this
Settlement Agreement (provided that the United States does not withdraw its
consent to the Settlement Agreement as not being in the public interest based
on the comments received) through the date of payment.


 


                6.  Payments shall be made by
FedWire Electronic Funds transfer (“EFT”) to the U.S. Department of Justice
account in accordance with current EFT procedures.  Payment to the Hazardous Substance Superfund
shall refer to EPA Region 8 and Site Spill ID Number 08-BC, and DOJ Case Number
90-11-2-07106/2.  Payments shall be made
in accordance with instructions provided to the Debtors by the Financial
Litigation Unit of the U.S. Attorney’s Office in the District of Montana
following entry of this Settlement Agreement. 
Any payments received by the Department of Justice after 11:00 a.m.
Eastern Time shall be credited on the next business day.


 


 


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                7.  At the time of payment, Debtors shall send
notice that payment has been made to EPA and DOJ in accordance with Section XV
(Notices and Submissions).  Such notice
shall reference the EPA Region 8 and Site-Spill ID Number 08-BC, DOJ Case
Number 90-11-2-07106/2, and the Civil Action Number.  Debtors shall also send notice by mail and
electronic mail (where noted) to the following:


 


                Kelcey Land


                U.S. Environmental Protection
Agency, Region 8


                Cost Recovery Program Manager,
ENF-RC,


                1595 Wynkoop
Street


                Denver, CO
80202-1129


 


and


 


                Dana Anderson


                U.S. EPA,


                26 W. Martin
Luther King Drive,


                Attention:  FINANCE, MS: NWD,


                Cincinnati, Ohio
45268


                (E-mail (to both):
anderson.dana@epa.gov and AcctsReceivable.CINWD@epa.gov)


 


                8.  The total amount to be paid pursuant to
Paragraph 5 shall be deposited in the Libby Asbestos Site Special Account
within the EPA Hazardous Substance Superfund to be retained and used to conduct
or finance response actions at or in connection with the Site or transferred by
EPA to the EPA Hazardous Substance Superfund, at EPA’s sole discretion.  EPA shall separately retain $11 million of
the total paid in a separate Libby Asbestos Site O&M Special Account for
the purpose of funding operation and maintenance at the Site.  If the funds are not needed in whole or part
for operation or maintenance (after all Records of Decision have been issued
and the nature, scope and cost of all operation and maintenance activities for
the Site have been determined), EPA will retain and use such funds to conduct
or finance response actions at


 


 


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or in connection
with the Site or transfer the money to the EPA Hazardous Substance Superfund,
at EPA’s sole discretion.


 


VII.  FAILURE TO COMPLY WITH REQUIREMENTS OF THIS
SETTLEMENT AGREEMENT


 


                9.  Stipulated Penalty.


 


                        a.  If the payment due under Paragraph 5 is not
paid by the required due date, Debtors shall be in violation of this Settlement
Agreement and shall pay, as a stipulated penalty, in addition to the Interest
required by Paragraph 5, $10,000 per day that such payment is late.


 


                        b.  Stipulated penalties are due and payable
within 30 days of the date of the demand for payment of the penalties by
EPA.   All payments to EPA under this
Paragraph shall be identified as “stipulated penalties” and shall be made by
Federal Wire Electronic Funds Transfer (“EFT”) to the Federal Reserve Bank of
New York City with the following information:


 


                                Federal
Reserve Bank of New York


                                ABA
= 021030004


                                Account
= 68010727


                                SWIFT
address = FRNYUS33


                                33
Liberty Street


                                New
York NY 10045


                                Field
Tag 4200 of the Fedwire message should read “D 68010727
                                         Environmental
Protection Agency”


 


Any payments received by the Federal Reserve Bank after 11:00 a.m.
(Eastern Time) will be credited on the next business day.


 


                        c.  At the time of each payment, Debtors shall
send notice that such payment has been made to EPA and DOJ in accordance with Section XV
(Notices and Submissions).  Such notice
shall reference the EPA Region 8 and Site/Spill ID Number 08-BC, DOJ Case
Number 90-11-2-07106/2,


 


 


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and the Civil
Action Number.  Debtors shall also send
notice by mail and electronic mail (where noted) to the following:


 


                Kelcey Land


                U.S. Environmental Protection
Agency, Region 8


                Cost Recovery Program Manager,
ENF-RC,


                1595 Wynkoop
Street


                Denver, CO
80202-1129


 


and


 


                Dana Anderson


                U.S. EPA,


                26 W. Martin
Luther King Drive,


                Attention:  FINANCE, MS: NWD,


                Cincinnati, Ohio
45268


                (E-mail (to both):
anderson.dana@epa.gov and AcctsReceivable.CINWD@epa.gov)


 


                        d.  Penalties shall accrue as provided in this
Paragraph regardless of whether EPA has notified Debtors of the violation or
made a demand for payment, but need only be paid upon demand.  All penalties shall begin to accrue on the
day after payment  is due and shall
continue to accrue through the date of payment.


 


                10.  If the United States brings an action to
enforce this Settlement Agreement, Debtors shall reimburse the United States for
all costs of such action, including but not limited to costs of attorney time.


 


                11.  Payments made under this Section shall
be in addition to any other remedies or sanctions available to the United
States by virtue of Debtors’ failure to comply with the requirements of this
Settlement Agreement.


 


                12.  Notwithstanding any other provision of this
Section, the United States may, in its unreviewable discretion, waive payment
of any portion of the stipulated penalties that have accrued pursuant to this
Settlement Agreement.  Payment of
stipulated penalties shall not excuse 


 


 


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Debtors from
payment as required by Section VI or from performance of any other
requirements of this Settlement Agreement.


 


VIII.  COVENANT NOT TO SUE BY PLAINTIFF


 


                13.  Covenant Not to Sue by United States.  Except as specifically provided in Section IX
(Reservation of Rights by United States), the United States covenants not to
sue or to take administrative action against Debtors pursuant to Sections 106
and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a), for the Libby
Asbestos Site with the exception of 
OU-3, and for payment of Past Response Costs and Future Response
Costs.  This covenant not to sue shall
take effect upon receipt by EPA of all payments required by Section VI
(Payment of Response Costs) and any amount due under Section VII (Failure
to Comply with Settlement Agreement). 
This covenant not to sue is conditioned upon the satisfactory
performance by Debtors of their obligations under this Settlement Agreement.  This covenant not to
sue extends only to Debtors and does not extend to any other person.


 


IX.  RESERVATION OF RIGHTS BY UNITED STATES


 


                14.  General Reservations of Rights by United
States.  The United States reserves,
and this Settlement Agreement is without prejudice to, all rights against
Debtors with respect to all matters not expressly included within the Covenant
Not to Sue by United States in Paragraph 13. 
Notwithstanding any other provision of this Settlement Agreement, the
United States reserves all rights against Debtors with respect to:


 


                        a.  liability for failure of Debtors to meet a
requirement of this Agreement;


 


                        b.  criminal liability;


 


 


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                        c.  liability for response actions at OU-3,
including, but not limited to, injunctive relief or administrative order
enforcement under Section 106 of CERCLA, 42 U.S.C. § 9606, and cost
recovery under Section 107 of CERCLA, 42 U.S.C. § 9607, and liability for
damages for injury to, destruction of, or loss of natural resources under Section 107
of CERCLA, 42 U.S.C. § 9607;


 


                        d.  liability that results from releases of
hazardous substances other than amphibole asbestos;


 


                        e.  liability, based upon Debtors’ operation of
any portion of the Site or upon transportation, treatment, storage, or
disposal, or the arrangement for the transportation, treatment, storage, or
disposal, of a hazardous substance or a solid waste at or in connection with
the Site, after signature of this Settlement Agreement by Debtors, except as
required by and in compliance with an EPA order or future settlement agreement
with EPA;


 


                        f.  liability arising from the past, present, or
future disposal, release or threat of release of a hazardous substance,
pollutant, or contaminant outside of the Site.


 


X.  COVENANT NOT TO SUE BY DEBTORS


 


                15.  Debtors covenant not to sue and agree not to
assert any claims or causes of action against the United States or its
contractors or employees with respect to the Site, except OU-3,   including but not limited to:


 


                        a.  any direct or indirect claim for
reimbursement from the Hazardous Substance Superfund based on Sections
106(b)(2), 107, 111, 112, or 113 of CERCLA, 42 U.S.C. §§ 9606(b)(2), 9607,
9611, 9612, or 9613, or any other provision of law;


 


 


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                        b.  any claim arising out of the Site, except
OU-3, or out of response actions for which Past Response Costs or Future
Response Costs were or will be incurred, including any claim under the United
States Constitution, the Constitution of the State of Montana, 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; or


 


                        c.  any claim against the United States pursuant
to Sections 107 and 113 of CERCLA, 42 U.S.C. §§ 9607 and 9613, relating to Past
Response Costs or Future Response Costs, or for the Site, except for OU-3.


 


                16.  Except as provided in Paragraph 22 (Waiver of
Claim-Splitting Defenses), the covenants not to sue set forth in Paragraph 15
shall not apply in the event the United States brings a cause of action or
issues an order pursuant to the reservations set forth in Paragraph 14 (c) -
(f), but only to the extent that Debtors’ claims arise from the same response
action, response costs, or damages that the United States is seeking pursuant
to the applicable reservation.


 


                17.  Debtors covenant not to sue and agree not to
assert any claims or causes of action pursuant to Sections 107 and 113 of
CERCLA, 42 U.S.C.  §§ 9607 and 9613,
relating to amphibole asbestos contamination at the Site or OU-3, against
residential landowners in Libby, Montana and business owners in Libby, Montana
who are in compliance with the terms of a “No Action Assurance” EPA issued for
residential landowners and business owners in Libby.


 


                18.  Nothing in this Settlement Agreement shall be
deemed to constitute approval or 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).


 


 


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XI.  EFFECT OF SETTLEMENT/CONTRIBUTION
PROTECTION


 


                19.  Except as provided in Paragraph 17 (Waiver of
Claims Against No Action Assurance Recipients), nothing in this Settlement
Agreement shall be construed to create any rights in, or grant any cause of
action to, any person not a Party to this Settlement Agreement.   The Parties expressly reserve 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.


 


                20.  The Parties agree, and by entering this
Settlement Agreement this Court finds, that Debtors are entitled, as of the
date of entry of this Settlement Agreement, to protection from contribution
actions or claims as provided by Section 113(f)(2) of CERCLA, 42
U.S.C. § 9613(f)(2), for “matters addressed” in this Settlement Agreement.  The “matters addressed” in this Settlement
Agreement are Past Response Costs, Future Response Costs and all response
actions taken or to be taken and all response costs incurred or to be incurred,
at or in connection with the Site, except for OU3, by the United States.  The ‘matters addressed’ in this Settlement
Agreement do not include those response costs or response actions as to which
the United States has reserved its rights under this Settlement Agreement
(except for claims for failure to comply with this Agreement), in the event
that the United States asserts rights against Debtors coming within the scope
of such reservations.


 


                21.  Debtors agree that, with respect to any suit
or claim for contribution brought by it for matters related to this Settlement
Agreement, it will notify EPA and DOJ in writing no later than sixty (60) days
prior to the initiation of such suit or claim. 
Debtors also agree 


 


 


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that, with respect
to any suit or claim for contribution brought against them for matters related
to this Settlement Agreement, they will notify EPA and DOJ in writing within
thirty (30) days of service of the complaint or claim upon them.  In addition, Debtors shall notify EPA and DOJ
within thirty (30) days of service or receipt of any Motion for Summary
Judgment, and within thirty (30) days of receipt of any order from a court
setting a case for trial, for matters related to this Settlement Agreement.


 


                22.  In any subsequent administrative or judicial
proceeding initiated by the United States for injunctive relief, recovery of
response costs, or other relief relating to the Site, Debtors 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 in the subsequent proceeding were or
should have been brought in the instant case; provided, however, that nothing
in this Paragraph affects the enforceability of the Covenant Not to Sue by
Plaintiff set forth in Section VIII.


 


XII.  ACCESS AND INSTITUTIONAL CONTROLS


 


                23.   Commencing
on the date of lodging of this Settlement Agreement, Debtors shall provide the
United States and its representatives, including EPA and its contractors, with
access at all reasonable times to the Site, or such other property, for the
purpose of conducting any response activity related to the Site, including, but
not limited to, the following activities:


 


                        a.  Monitoring, investigation, removal, remedial
or other activities at the Site;


 


                        b.  Verifying any data or information submitted
to the United States;


 


                        c.  Conducting investigations relating to
contamination at or near the Site;


 


                        d.  Obtaining samples;


 


 


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                        e.  Assessing the need for, planning, or
implementing additional response actions at or near the Site;


 


                        f.  Inspecting and copying records, operating
logs, contracts, or other documents maintained or generated by Debtors or their
agents, consistent with Section XIII (Access to Information);


 


                        g.  Determining whether the Site or other
property is being used in a manner that is prohibited or restricted, or that
may need to be prohibited or restricted, by or pursuant to this Settlement
Agreement.


 


                        h.  Debtors shall record and comply with any
institutional controls at the Site that relate to Debtors properties and are
part of an approved Record of Decision(s) for the Site.


 


XIII. 
ACCESS TO INFORMATION


 


                24.  Debtors shall provide to EPA, upon request,
copies of all records, reports, or information (hereinafter referred to as “records”)
within their possession or control or that of their contractors or agents
relating to activities at the Site, including, but not limited to, sampling,
analysis, chain of custody records, manifests, trucking logs, receipts,
reports, sample traffic routing, correspondence, or other documents or
information related to the Site.


 


                25.  Confidential Business Information and
Privileged Documents.


 


                                a.  Debtors may assert business confidentiality
claims covering part or all of the records submitted to Plaintiff under this
Settlement Agreement 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).  Records determined to be confidential by EPA
will be accorded the protection specified in 40 C.F.R. Part 2, Subpart
B.  If no claim of confidentiality
accompanies records 


 


 


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when they are
submitted to EPA, or if EPA has notified Debtors that the records are not
confidential under the standards of Section 104(e)(7) of CERCLA or 40
C.F.R. Part 2, Subpart B, the public may be given access to such records
without further notice to Debtors.


 


                                b.  Debtors may assert that certain records are
privileged under the attorney-client privilege or any other privilege
recognized by federal law.  If Debtors
assert such a privilege in lieu of providing records, they shall provide
Plaintiff with the following:  1) the
title of the record; 2) the date of the record; 3) the name, title, affiliation
(e.g., company or firm), and address of
the author of the record; 4) the name and title of each addressee and recipient;
5) a description of the subject of the record; and 6) the privilege
asserted.  If a claim of privilege
applies only to a portion of a record, the record shall be provided to EPA in
redacted form to mask the privileged information only.  Debtors shall retain all records that they
claim to be privileged until the United States has had a reasonable opportunity
to dispute the privilege claim and any such dispute has been resolved in the Debtors
favor.  However, no records created or
generated pursuant to the requirements of this or any other settlement with the
United States shall be withheld on the grounds that they are privileged.


 


                26.  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 records evidencing conditions at or around the Site.


 


 


 


17
















 


XIV.  RETENTION OF RECORDS


 


                27.  Until 10 years after the entry of this
Settlement Agreement, Debtors shall preserve and retain all records, reports,
or information (hereinafter referred to as “records”) now in its possession or
control, or which come into its possession or control, that relate in any
manner to response actions taken at the Site or the liability of any person for
response actions or response costs at or in connection with the Site,
regardless of any corporate retention policy to the contrary.


 


                28.  After the conclusion of the 10-year document
retention period in the preceding paragraph, Debtors shall notify EPA and DOJ
at least 90 days prior to the destruction of any records, and, upon request by
EPA or DOJ, Debtors shall deliver any such records to EPA.  Debtors may assert that certain records are
privileged under the attorney-client privilege or any other privilege
recognized by federal law.  If Debtors
assert such a privilege, they shall provide Plaintiff with the following:  1) the title of the record; 2) the date of
the record; 3) the name  title,
affiliation (e.g., company or firm), and
address of the author of the record; 4) the name and title of each addressee
and recipient; 5) a description of the subject of the record; and 6) the privilege
asserted.  If a claim of privilege
applies only to a portion of a record, the record shall be provided to EPA in
redacted form to mask the privileged information only.  Debtors shall retain all records that they
claim to be privileged until the United States has had a reasonable opportunity
to dispute the privilege claim and any such dispute has been resolved in the Debtors’
favor.  However, no records created or
generated pursuant to the requirements of this or any other settlement with the
United States shall be withheld on the grounds that they are privileged.


 


 


18

















 


                29.  No claim of privilege 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 records evidencing conditions at or around the Site.


 


                30.  Debtors hereby certify that, to the best of
their knowledge and belief, after thorough inquiry, it has not altered, mutilated,
discarded, destroyed or otherwise disposed of any records, reports, or
information relating to its potential liability regarding the Site since
notification of potential liability by the United States or the filing of suit
against it regarding the Site and that it has fully complied with any and all
EPA requests for information pursuant to Sections 104(e) and 122(e) of
CERCLA, 42 U.S.C. §§ 9604(e) and 9622(e), and Section 3007 of RCRA,
42 U.S.C. § 6927.


 


XV.  NOTICES AND SUBMISSIONS


 


                31.  Whenever, under the terms of this Settlement
Agreement, 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.  Written notice as specified herein shall
constitute complete satisfaction of any written notice requirement of the
Settlement Agreement with respect to the United States, EPA, DOJ, and Debtors,
respectively.


 


As to the United
States:


 


As to DOJ:


 


Chief,
Environmental Enforcement Section


Environment and
Natural Resources Division


U.S. Department of
Justice (DJ # 90-11-2-07106/2)


P.O. Box 7611


Washington,
D.C.  20044-7611


 


 


19

















 


As to EPA:


 


Directors of Legal
and Technical Enforcement


U.S. EPA – ENF-L,
ENF-RC


1595 Wynkoop
Street


Denver, CO 80202


 


As to Debtors:


 


W.R. Grace & Co.


7500 Grace Drive


Columbia, Maryland  21044


Attn: William M. Corcoran


 


XVI.  RETENTION OF JURISDICTION


 


                32.  This Court shall retain jurisdiction over
this matter for the purpose of interpreting and enforcing the terms of this
Settlement Agreement.


 


XVII.  INTEGRATION


 


                33.   This Settlement Agreement constitutes the
final, complete and exclusive agreement and understanding among the Parties
with respect to the settlement embodied in this Settlement Agreement.  The Parties acknowledge that there are no
representations, agreements or understandings relating to the settlement other
than those expressly contained in this Settlement Agreement.


 


XVIII.  LODGING AND OPPORTUNITY FOR PUBLIC COMMENT


 


                34.  This Settlement Agreement shall be subject to
approval of the Court.  The Debtors shall
promptly seek approval of this Settlement Agreement under Bankruptcy Rule 9019
or other applicable provisions of the Bankruptcy Code.  The hearing on Debtors’ request for such
approval shall not be held until the United States informs the Court (pursuant
to Paragraph 35) of 


 


 


20

















 


any public
comments on the Settlement Agreement and the United States’ responses to those
comments.


 


                35.  This Settlement Agreement shall be lodged
with the Court for a period not less than thirty (30) days while notice of this
Settlement Agreement is provided and public comment is solicited.  After the conclusion of the public comment
period, the United States will file with the Court any comments received and
the United States’ responses to the comments, or a notification that no
comments were received.  The United
States reserves the right to withdraw its consent to this Agreement if the
comments regarding the Settlement Agreement disclose facts or considerations
which indicate that the Settlement Agreement is not in the public interest.


 


                36.  If for any reason (i) the Settlement
Agreement is withdrawn by the United States as provided in Paragraph 35, or (ii) the
Bankruptcy Court does not approve the Settlement Agreement, or (iii) the
Bankruptcy Cases are dismissed or converted to cases under Chapter 7 of the
Bankruptcy Code before Grace makes the payment to the United States required by
Paragraph 5: (a) this Settlement Agreement shall be null and void and the
parties shall not be bound hereunder or under any documents executed in
connection herewith; (b) the parties shall have no liability to one
another arising out of or in connection with this Settlement Agreement or under
any documents executed in connection herewith; (c) this Settlement
Agreement and any documents prepared in connection herewith shall have no
residual or probative effect or value, and it shall be as if they had never
been executed; and (d) this Settlement Agreement, any statements made in
connection with settlement discussions, and any documents prepared in connection
herewith may not be used as evidence in any litigation between the parties.


 


 


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XIX.  SIGNATORIES/SERVICE


 


                37.  Each undersigned representative of Debtors
and the Associate Attorney General for the Environment and Natural Resources
Division  of the United States Department of
Justice certifies that he or she is authorized to enter into the terms and
conditions of this Settlement Agreement and to execute and bind legally such
Party to this document.  The Parties
recognize that Debtors’ authority to enter into and implement this Settlement
Agreement is subject to approval of the Court.


 


                38.  Debtors agree not to oppose entry of this
Settlement Agreement by the Court or to challenge any provision of this
Settlement Agreement, unless the United States has notified Debtors in writing
that it no longer supports entry of the Settlement Agreement.


 


XX.  FINAL JUDGMENT


 


                39.  Upon approval and entry of this Settlement
Agreement by the Court, this Settlement Agreement shall constitute the final
judgment between and among the United States and Debtors.


 


 


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  FOR THE UNITED
  STATES OF AMERICA

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  March 9, 2008

  	
   

  	
  /s/ Ronald J. Tenpas

  
	
  Date

  	
   

  	
  RONALD J. TENPAS

  
	
   

  	
   

  	
  Assistant Attorney
  General

  
	
   

  	
   

  	
  Environment and Natural
  Resources Division

  
	
   

  	
   

  	
  U.S. Department of
  Justice

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  March 11, 2008

  	
   

  	
  /s/ James D. Freeman

  
	
  Date

  	
   

  	
  JAMES D. FREEMAN

  
	
   

  	
   

  	
  Environmental
  Enforcement Section

  
	
   

  	
   

  	
  U.S. Department of
  Justice

  
	
   

  	
   

  	
  1961 Stout Street;
  Eighth Floor

  
	
   

  	
   

  	
  Denver, CO 80294

  
	
   

  	
   

  	
  (303) 844-1489

  



 


 


23

















 


 


	
   

  	
   

  	
  FOR THE UNITED STATES
  OF AMERICA

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  March 6, 2008

  	
   

  	
  /s/ Sharon L. Kercher

  
	
  Date

  	
   

  	
  SHARON L. KERCHER

  
	
   

  	
   

  	
  Director, CERCLA and
  RCRA Technical Enforcement Program

  
	
   

  	
   

  	
  Office of Enforcement,
  Compliance and Environmental Justice

  
	
   

  	
   

  	
  U.S. Environmental
  Protection Agency

  
	
   

  	
   

  	
  1595 Wynkoop Street

  
	
   

  	
   

  	
  Denver, Colorado 80202

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  March 5, 2008

  	
   

  	
  /s/ Matthew Cohn

  
	
  Date

  	
   

  	
  MATTHEW COHN

  
	
   

  	
   

  	
  Supervisory Attorney

  
	
   

  	
   

  	
  Legal Enforcement
  Program

  
	
   

  	
   

  	
  Office of Enforcement,
  Compliance and Environmental Justice

  
	
   

  	
   

  	
  U.S. Environmental
  Protection Agency

  
	
   

  	
   

  	
  1595 Wynkoop Street

  
	
   

  	
   

  	
  Denver, Colorado 80202

  



 


 


 


24

















 


 


	
   

  	
   

  	
  FOR DEBTORS W.R.
  GRACE & CO., ET AL.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  March 11, 2008

  	
   

  	
  /s/ William M. Corcoran

  
	
   

  	
   

  	
  WILLIAM M. CORCORAN

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
  Public and Regulatory
  Affairs

  
	
   

  	
   

  	
  W. R. Grace &
  Co.

  
	
   

  	
   

  	
  7500 Grace Drive

  
	
   

  	
   

  	
  Columbia, Maryland 21044

  
				



 


 


 


 


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