Opinion
Bankruptcy Case No. 5:03-BK-1802, Civil Action No. 5:04-cv-63.
February 28, 2005
Mark J. Rudolph, W.Va. State Bar ID No. 6183, Senior Counsel, WVDEP-OLS, Charleston, West Virginia, Attorneys for Appellee-WVDEP.
Mr. David Pusateri, Esq. (Pro Hac Vice), Stacia Christman (Pro Hac Vice), McGuireWoods LLP, Pittsburgh, PA, Attorneys for Appellant/Weirton.
Robert D. Pollitt (W.Va. Bar ID No. 2935), Armando Benincasa (W.Va. Bar No. 6865), Steptoe Johnson PLLC, Charleston, WV, Responsible Local Attorneys For Appellant/Weirton.
Mr. David Flannery W. Va. State Bar ID # 1216, Jackson Kelly PLLC, Charleston, WV, Attorneys for Appellee-Intervenor/Shiloh.
ORDER OF DISMISSAL DUE TO SETTLEMENT OF THE PARTIES
I. INTRODUCTION
NOW COMES the Appellant, the West Virginia Department of Environmental Protection ("WVDEP") by and through the Office of Legal Services, WVDEP and hereby files this Order of Dismissal Due To Settlement of the Parties and states as follows:
II. RECITALS
WHEREAS, on May 19, 2003 Weirton Steel Corporation ("Weirton") filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code, 11 USC §§ 101 et seq. In the United States Bankruptcy Court for the Northen District of West Virginia ("Bankruptcy Court") (Case No. 5:03-BK-1802);
WHEREAS, Weirton and other affiliated debtors obtained authority from the Bankruptcy Court pursuant to an Order dated April 22, 2004 to sell substantially all of the Weirton's assets to ISG Weirton, Inc. ("Sale Order");
WHEREAS, WVDEP filed limited objections to the sale of substantially all of Weirton's assets based upon assertions that, inter alia, Weirton had on-going environmental permitting obligations related to the Shiloh Landfill, but that said objections were overruled;
WHEREAS, WVDEP thereupon filed an appeal of the Sale Order to this Honorable Court and the appeal was docketed in the United States District Court for the Northern District of West Virginia at Civil Action No. 5:04-CV-63, as captioned above;
WHEREAS, simultaneously with the underlying Bankruptcy Court proceedings, Weirton filed an appeal of the WVDEP administrative Order No. 5565 to the State of West Virginia Environmental Quality Board in Appeal No. 04-10-EQB;
WHEREAS, the Appellant, WVDEP, and the Appellee, Weirton, have engaged in negotiations related to the bankruptcy claims of the WVDEP, the Environmental Quality Board matter and the instant appeal of the Sale Order, and, have come to a settlement and full resolution of all matters pertinent thereto;
WHEREAS, the settlement and resolution were effectuated through: (1) an October 29, 2004 Consent Judgment/Order of Dismissal in the Environmental Quality Board Appeal No. 04-10-EQB (Exhibit 1), (2) a December 31, 2004 Settlement and Release Agreement that was signed by both the WVDEP and Weirton, as well as the co-permittee of the Shiloh Landfill, the Shiloh River Corporation (Exhibit 2); and, (3) an "Order of Court" entered February 1, 2005 by the Bankruptcy Court via Motion, after appropriate Notice and filing (Exhibit 3);
WHEREAS, the above-mentioned documents (Exhibits 1-3) settled and fully resolved all "WVDEP-claim" issues related to the Bankruptcy case, the Environmental Quality Board Appeal, and all issues related to Weirton's involvement in the Shiloh Landfill, including WVDEP's appeal of the Sale Order to the United States District Court For the Northern District of West Virginia; and,
WHEREAS, pursuant to the February 1, 2005 Order of Court (Exhibit 3), Weirton has issued and the WVDEP has received, on February 18, 2005, the total settlement amount of $315,000.00.
III. FINDINGS
THEREFORE, with this Court having reviewed this matter, the instant Order of Dismissal Due To Settlement of the Parties, including all Exhibits attached hereto, and it appearing that all matters associated with WVDEP's Appeal of the Sale Order have been satisfactorily resolved and this Appeal has been rendered moot by the settlement of the parties, with full consent and understanding as to the premises thereto; and,
FURTHER, in accordance with Paragraph 6 of the February 1, 2005 Order of Court (Exhibit 3), in order to meet the obligations of WVDEP thereunder, and, to otherwise, effectuate the intent of the parties hereto, this Honorable Court hereby finds that entry of this Order of Dismissal Due To Settlement of the Parties is appropriate and in the best interests of justice.
IV. ORDER
ACCORDINGLY, it is hereby ORDERED, ADJUDGED and DECREED that the appeal in above-captioned Civil Action No. 5:04-CV-63 is hereby dismissed with prejudice;
It is further ORDERED, ADJUDGED and DECREED that this matter is hereby stricken from the docket of this Court;
The Clerk is hereby ordered to forward certified copies of this Order of Dismissal Due To Settlement of the Parties to counsel of record.
WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD CHARLESTON, WEST VIRGINA
WEIRTON STEEL CORPORATION
Appellant,
and
SHILOH RIVER CORPORATION,
Intervenor-Appellant, Appeal No. 04-10-EQB v.
ALLYN G. TURNER, DIRECTOR, DIVISION OF WATER AND WASTE MANAGEMENT, WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Appellee.
CONSENT JUDGMENT/ORDER OF DISMISSAL
NOW COMES the Appellant, Weirton Steel Corporation ("Weirton"), by and through its counsel David P. Pusateri and Stacia A. Christman of McGuireWoods LLP ( Pro Hac Vice) and Robert D. Pollitt and Armando Benincasa of Steptoe Johnson, PLLC (Responsible Local Attorneys), the Appellee, Allyn Turner, Director, Division of Water and Waste Management, West Virginia Department of Environmental Protection ("WVDEP") by and through the Office of Legal Services, West Virginia Department of Environmental Protection, and the Appellant-Intervenor, Shiloh River Corporation ("Shiloh"), by and through its counsel David M. Flannery of Jackson Kelly, PLLC to hereby jointly file this Consent Judgment/Order of Dismissal ("Consent Judgment") and state as follows:
WHEREAS, this matter involves the so called Shiloh River Landfill which is an industrial non-hazardous solid waste landfill owned and operated by Shiloh and previously leased by Weirton; and
WHEREAS, Weirton, Shiloh and the WVDEP agreed to the terms of a Consent Order and Agreement in Appeal No. 97-01-EQB entered September 29, 1997 ("EQB Consent Order') by the West Virginia Environmental Quality Board ("EQB"), which included Paragraph 6 of the EQB Consent Order, which stated that "Shiloh and/or Weirton shall conduct post-closure care in accordance with the Closure and Post-Closure Plan;" and
WHEREAS, the Shiloh River Landfill was properly closed, but closure and post-closure obligations continue, and, thereafter, both the Weirton and the Shiloh River Corporation became co-permittees under the Solid Waste/NPDES Permit No WV0079081 which addressed certain obligations under the Closure and Post-Closure Plan; and
WHEREAS, Weirton filed a voluntary petition for relief under Chapter 11 of the U.S. Bankruptcy Code on May 19, 2003 in the U.S. Bankruptcy Court for the Northern District of West Virginia (U.S.B.C., N.D.W.Va.; Bankruptcy Case No. 5:03-BK-1802); and
WHEREAS, Weirton obtained authority from the Bankruptcy Court, pursuant to that certain order dated April 22, 2004 ("Sale Order") approving the sale of substantially all of Weirton's assets to ISG Weirton, Inc. ("Sale Transaction"); and
WHEREAS, the Sale Transaction closed effective May 17, 2004 after which time Weirton conducted no business operations; and
WHEREAS, Weirton filed a Chapter 11 Plan of Liquidation dated June 7, 2004 pursuant to which Weirton proposes to distribute the remaining proceeds of the Sale Transaction; and
WHEREAS, WVDEP appealed the April 22, 2004 Sale Order to the United States District Court; and
WHEREAS, the Solid Waste/NPDES Permit No WV0079081 was to expire on April 15, 2004, and the WVDEP issued Order No. 5565 jointly to Weirton and Shiloh on April 9, 2004 requiring Weirton and/or Shiloh to file an application for permit reissuance, and otherwise, extending Solid Waste/NPDES Permit No WV0079081 to August 14, 2004; and
WHEREAS, the WVDEP amended Order No. 5565 extending the expiration date of Solid Waste/NPDES Permit No. WV0079081 to November 12, 2004; and
WHEREAS, on or about May 10, 2004 Weirton filed a Notice of Appeal of Order No. 5565 and a Motion For Stay with the EQB, Appeal No. 04-10-EQB; and
WHEREAS, on May 20, 2004 Shiloh filed a Motion To Intervene in the EQB Appeal No. 04-10-EQB; and
WHEREAS, on May 24, 2004 the EQB entered an Order Granting Shiloh's Motion To Intervene and Granting Stay, with certain stipulations as agreed upon by the parties; and
WHEREAS, this Consent Judgment has been negotiated by the Parties in good faith, settlement of this matter will avoid prolonged and complicated litigation between the Parties, and this Consent Judgment is fair, reasonable, and in the public interest; and
WHEREAS, without admitting to any law or fact, nor any liability arising out of the transactions or occurrences alleged in the Appeal, Weirton, Shiloh and the WVDEP, after full consultation with counsel as to the content of this Consent Judgment/Order of Dismissal, and understanding as to the ramifications contained within, and, being fully informed as to the premises, agree and consent to entry of this Consent Judgment/Order of Dismissal:
THEREFORE, with the consent of the Parties to this Judgment, it is ORDERED, ADJUDGED, AND DECREED:
(1) As settlement of a disputed claim, Weirton will take all necessary actions (with WVDEP support) as soon as practicable in its Bankruptcy Case (U.S.B.C., N.D.W.Va.; Bankruptcy Case No. 5:03-BK-1802) to effectuate payment of a settlement amount of $250,000.00 to the WVDEP in order to address its future environmental obligations regarding the Shiloh River Landfill via check made out to the "West Virginia Department of Environmental Protection" that shall be mailed and/or delivered to the following address:
West Virginia Department of Environmental Protection Office of Legal Services c/o Mr. Mark J. Rudolph 1356 Hansford Street Charleston, West Virginia 25301
If Weirton is unable to obtain approval from the Bankruptcy Court or subsequent appeals court of the $250,000.00 settlement amount, any party may Motion the EQB to reinstate this appeal;
(2) WVDEP agrees and Shiloh does not contest that Weirton will not be required to submit an application for re-issuance (nor be a co-permittee) on Solid Waste/NPDES Permit Number WV0079081 or any other permit related to the Shiloh River Landfill;
(3) WVDEP and Shiloh (to the extent that Shiloh has any authority to do so) release Weirton, its officers, directors, shareholders, employees, agents, consultants, contractors, representatives, affiliates, and the like from any and all environmental obligations and liabilities arising from or related to the Shiloh River Landfill including but limited to any and all damages, costs, claims, fines, fees, judgments, penalties and losses, excepting any liabilities arising from the illegal disposal of waste by Weirton at the Shiloh River Landfill (i.e., the disposal of hazardous waste (as defined at the time of disposal);
(4) WVDEP will take all necessary actions to dismiss and otherwise relieve Weirton from all matters related to the appeal of the Sale Order in United States District Court Appeal (U.S.D.C., N.D.W.Va.; Civ. Action No. 5:04-CV-63);
(5) WVDEP agrees that it will utilize the $250,000.00 settlement amount and create a jointly administered trust or escrow account in both its name and in the name of Shiloh, the purpose of which will be to address future environmental matters associated with the Shiloh River Landfill, including but not limited to permitting, monitoring and remediation costs;
(6) DEP and Shiloh agree to negotiate in good faith, a revised set of regulatory requirements applicable to the Shiloh River Landfill, including the NPDES permit, post-closure requirements, and other regulatory obligations related to Shiloh's obligations with respect to the landfill. The object of these negotiations will be to achieve a set of regulatory requirements that can be achieved by Shiloh with the funds that are being contributed by WSC as a part of this settlement and with funds contribution by Shiloh that are at or near the level of funds contributed by Shiloh for compliance with environmental regulatory requirement at the landfill in recent years (not to exceed $10,000 per year). In the event that DEP and Shiloh achieve agreement on such a revised set of regulatory requirements, DEP agrees to exercise its enforcement discretion to not pursue Shiloh, its officers, directors, shareholders, employees, agents, consultants, contractors, representatives, affiliates, and the like from any and all past environmental obligations and liabilities arising from or related to the Shiloh River Landfill, excepting any liabilities arising from the illegal disposal of waste by Shiloh at the Shiloh River Landfill (i.e., the disposal of hazardous waste (as defined at the time of disposal). Shiloh accepts responsibility for on-going compliance with such revised set of regulatory requirements, including all permit and post-closure requirements thereto. In the event that DEP and Shiloh cannot achieve agreement on any or all of such revised regulatory requirements, DEP and Shiloh each reserve all rights and remedies available to them under law.
(7) Except as otherwise noted herein for which the EQB retains jurisdiction, the above-captioned appeal is hereby DISMISSED WITH PREJUDICE as to all of the claims asserted by Weirton in the underlying Notice of Appeal, which relate to Shiloh River Landfill. Further, except as otherwise noted herein, all other matters related to issues associated with Weirton's obligations related to the closure and post-closure care concerning to the Shiloh River Landfill and all issues related to Order No. 5565 are also hereby DISMISSED WITH PREJUDICE;
(8) Each side is to bear its own costs, expenses and attorneys fees; and,
(9) This Appeal may now be stricken from the docket of the EQB.
The Clerk is hereby ordered to forward certified copies of this Consent Judgment/Order of Dismissal to counsel of record.
ENTERED: ___________________
ENVIRONMENTAL QUALITY BOARD
Prepared, agreed and consented to by:
Mark J. Rudolph, W.Va. State Bar ID No. 6183 Attorney for Appellee-WVDEP Senior Counsel, WVDEP-OLS
1356 Hansford Street Charleston, West Virginia 25301 (304) 558-9160 FAX: (304) 558-4255
Agreed and consented to by:
Mr. David Pusateri, Esq. ( Pro Hac Vice) Stacia Christman ( Pro Hac Vice) Attorneys For Appellant/Weirton McGuireWoods LLP 625 Liberty Ave, 23rd Floor Pittsburgh, PA 15222 (412) 667-6000 FAX (412) 667-6050
Robert D. Pollitt (W.Va. Bar ID No. 2935) Armando Benincasa (W.Va. Bar No. 6865) Responsible Local Attorneys For Appellant/Weirton Steptoe Johnson PLLC Bank One Center, 7th Fl. P.O. Box 1588 Charleston, WV 25326-1588 (304) 353-8147 FAX (304) 353-8180
Mr. David Flannery W. Va. State Bar ID # 1216 Attorney For Apellee-Intervenor/Shiloh Jackson Kelly PLLC P.O. Box 553 Charleston, WV 25322-0553 (304) 340-1017 FAX (304) 340-1130
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement (the "Agreement") is made and entered into as of December 31, 2004 by and among Weirton Steel Corporation Liquidating Trust ("WSCLT"), the West Virginia Department of Environmental Protection (the "WVDEP"), an agency of the State of West Virginia; and Shiloh River Corporation ("Shiloh"), a West Virginia corporation, and is contingent upon the approval of the United States Bankruptcy Court for the Northern District of West Virginia.
RECITALS
WHEREAS, on May 19, 2003 (the "Petition Date"), Weirton Steel Corporation ("Weirton") filed a voluntary petition for relief under chapter 11 of the United States Bankruptcy Code, 11 U.S.C. §§ 101, et seq. (the "Bankruptcy Code") in the United States Bankruptcy Court for the Northern District of West Virginia (the "Court") at Case No. 5:03-BK-1802; and
WHEREAS, on August 24, 2004, the Court entered an order confirming the plan of liquidation (as amended) filed by Weirton. The effective date for the plan of liquidation was September 9, 2004, the result of which was the establishment of the WSCLT, as successor to the bankruptcy estate of Weirton; and
WHEREAS, Weirton and certain debtor affiliates obtained authority from the Bankruptcy Court, pursuant to that certain order dated April 22, 2004 (the "Sale Order"), to sell substantially all of their assets (the "Sale Transaction") to ISG Weirton Inc. (the "Buyer"), a wholly owned subsidiary of International Steel Group Inc., in accordance with that certain Amended and Restated Asset Purchase Agreement dated February 25, 2004, as amended by Amendment Nos. 1, 2 and 3 thereto; and
WHEREAS, the Sale Transaction closed effective May 17, 2004 (the "Closing"), after which time Weirton conducted no business operations and the Buyer has been operating Weirton's assets as a going concern operation; and
WHEREAS, Weirton filed a plan of liquidation dated June 7, 2004, as amended from time to time (the "POL"), pursuant to which Weirton proposes to distribute the remaining proceeds of the Sale Transaction and the other remaining assets of the bankrupt estate; and
WHEREAS, prior to Weirton's bankruptcy filing, Weirton disposed of certain non-hazardous waste materials from its operations at an off-site location known as the Shiloh Landfill, owned by Shiloh and operated by Shiloh and Weirton. On September 29, 1997, Weirton, Shiloh and the WVDEP entered into a certain Consent Order and Agreement (the "COA") addressing treatment of the Shiloh Landfill with the West Virginia Environmental Quality Board. In 1999, Weirton and Shiloh closed the Shiloh Landfill. On or about April 15, 1999, WVDEP issued Solid Waste/NPDES Permit Number WV 0079081 ("Permit") and Shiloh and Weirton became co-permittees for the Shiloh Landfill; and
WHEREAS, Shiloh and the WVDEP objected to the Sale Transaction, alleging, inter alia, that the Sale Transaction and Sale Order would permit Weirton to discharge otherwise non-dischargeable environmental obligations and responsibilities of Weirton relating to the Shiloh Landfill. The WVDEP filed an appeal (the "Sale Appeal") of the Sale Order in the United States District Court for the Northern District of West Virginia docketed at Civil Action No. 5:04-CV-63 and
WHEREAS, on or about April 15, 2004 the Permit for the Shiloh Landfill was about to expire by its term. The WVDEP issued administrative order, Order No. 5565, which extended the Permit and required Weirton as a co-permittee with Shiloh to file an application to reissue the Permit. Weirton appealed (the "Board Appeal") Order No. 5565 regarding the requirement to file an application to reissue the Permit with Weirton as a co-permittee to the West Virginia Environmental Quality Board (the "Board").; and
WHEREAS, after the Closing and pending the outcome of the Sale Appeal and the Board Appeal, Weirton is funding amounts minimally necessary to maintain the environmental status quo at the Shiloh Landfill in accordance with a May 24, 2004 Order Granting Motion To Intervene and Order Granting Stay entered by the Board among Weirton, Shiloh and the WVDEP; and
WHEREAS, the WVDEP filed a proof of claim at Claim No. 20406 listing an administrative priority claim in the liquidated amount of $299,750, which included, inter alia, a claim for $187,500.00 in post-petition civil penalties plus a contingent amount of $60,000 to $70,000 per year in injunctive relief for the 30 year post-closure period related to the Shiloh Landfill pending the outcome of the Sale Appeal, $112,250.00 in post-petition stipulated penalties related to a Consent Decree entered in Civil Action 5:96-CV-171, and a second proof of claim at Claim No. 02742 in a contingent and unliquidated amount. Shiloh did not file a proof of claim in Weirton's bankruptcy proceedings; and
WHEREAS, the WVDEP alleges that in addition to the claims it asserts against Weirton, certain individuals formerly employed by Weirton and/or the current authorized agent of Weirton may have personal liability to the WVDEP under certain circumstances. WSCLT does not agree with this assertion; and
WHEREAS, WSCLT disputes the amount, validity and priority of the claims the WVDEP asserts, and WSCLT intends to litigate the merits of the Sale Appeal; however, WSCLT, WVDEP and Shiloh wish to resolve their disputes, without any admission of liability in order to avoid the costs, risks, delay and uncertainty associated with litigation and claims disputes; and
WHEREAS, the compromise set forth herein will significantly advance the timing of payment of claims under the POL and is in the best interest of WSCLT and its beneficiaries, the WVDEP and Shiloh;
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and payments referred to herein, the receipt and sufficiency of said consideration being acknowledged, it is agreed by and among Weirton, the WVDEP and Shiloh as follows:
1. Recitals. The above recitals are an integral part of this Agreement and are incorporated herein.
2. Payment. In full and final payment and satisfaction of all claims of the WVDEP related to the Shiloh Landfill in the bankruptcy proceedings of Weirton, Weirton agrees to pay the WVDEP a cash payment of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000) as an allowed administrative priority claim within three business days following the date on which an order of the Court approving the terms of this Agreement has become final and non-appealable, which amount shall be placed in an interest bearing trust by the WVDEP and used with respect to the regulatory compliance, maintenance and reclamation of the Shiloh Landfill. In addition, in full payment and satisfaction of all claims of the WVDEP may have or have had in the bankruptcy proceedings, except as not otherwise waived or released in paragraphs 6 and 8 below, and specifically, in full payment and satisfaction of those post-petition stipulated penalty claims related to the Consent Decree in Civil Action 5:96-CV-171 (N.D.W.Va), WSCLT agrees to pay the WVDEP a cash payment of sixty-five thousand dollars ($65,000) (together with the $250,000 payment, the "Settlement Amount") as an allowed administrative priority claim within three business days following the date on which an order of the Court approving the terms of this Agreement has become final and non-appealable. Notwithstanding the ultimate status of the administrative solvency of the Weirton bankruptcy estate, no portion of the Settlement Amount shall be subject to recovery or disgorgement once paid. It should be specifically noted that the $250,000 and the $65,000 Settlement Amount shall be paid by separate check made out to the "West Virginia Department of Environmental Protection" and mailed to:
West Virginia Department of Environmental Protection Office of Environmental Enforcement Attn: Chief Inspector 601 57th Street SE Charleston, WV 25304
3. Disallowance of Claims. Upon payment of the Settlement Amount, any and all claims against Weirton and/or WSCLT that the WVDEP has filed, or could in the future file against Weirton and/or WSCLT in Weirton's bankruptcy proceedings, shall be disallowed and expunged.
4. Dismissal of Sale Appeal. Within five (5) business days following receipt of the Settlement Amount, the WVDEP shall take all necessary action to dismiss the Sale Appeal, with each party to bear its own costs.
5. Dismissal of Board Appeal. Prior to the execution of this Settlement and Release Agreement, the parties entered into a Consent Judgment/Order of Dismissal, which dismissed the Board Appeal, with each party to bearing its own costs, a copy of which is attached hereto and incorporated herein by reference as Exhibit A.
6. Waiver of Claims. With respect to the Shiloh River Landfill, the WVDEP and Shiloh expressly agree that upon payment of the Settlement Amount, neither the WVDEP nor Shiloh will seek other or further payment from WSCLT for any claim of any kind or nature whatsoever arising from or relating to the Shiloh River Landfill excepting, with respect to the WVDEP and Shiloh any liabilities arising from the illegal disposal of waste by Weirton at the Shiloh River Landfill (i.e., the disposal of hazardous waste (as defined at the time of disposal). With respect to all other claims, the WVDEP and Shiloh expressly agree that upon payment of the Settlement Amount, neither the WVDEP nor Shiloh will seek other or further payment from Weirton for any claim of any kind or nature whatsoever arising from or relating to Weirton.
7. No Admissions. Nothing herein will constitute an admission of any fact or matter in controversy between WSCLT and the WVDEP. This Agreement and any actions taken pursuant to this Agreement are not and will not be construed as any admission of liability by WSCLT.
8. Conflicts of Documents. Nothing contained herein is intended to amend or supersede (i) the Sale Order, (ii) the POL, or (iii) the order confirming the POL, and to the extent that any provision of this Agreement conflicts with any of the foregoing, the applicable provision of the Sale Order, the POL, or the order confirming the POL shall control.
9. Releases. The WVDEP hereby releases and discharges Weirton, its bankruptcy estate, its current and/or former officers, directors, agents, employees, its authorized agent, WSCLT and the liquidating trustee from any and all obligations, claims, causes of action, joinders for sole liability, contribution, indemnity or otherwise, damages, costs, expenses or demands of any kind whatsoever at law or equity which the WVDEP ever had, now has or may have hereinafter relating in any way to matters over which the WVDEP exercises jurisdiction, control, enforcement power or has standing to participate related to Weirton, excepting any liabilities arising from the illegal disposal of waste by Weirton at the Shiloh River Landfill (i.e., the disposal of hazardous waste (as defined at the time of disposal).
Shiloh, its successors and assigns, hereby release and discharge (to the extent that Shiloh has any authority to do so) Weirton, its bankruptcy estate, its current and/or former officers, directors, agents, employees, its authorized agent, WSCLT and the liquidating trustee from any and all liability, claims, causes of action, joinders for sole liability, contribution, indemnity or otherwise, damages, costs, expenses, or demands of any kind whatsoever at law or equity which Shiloh ever had, now has or may have hereinafter relating in any way to matters involving the Shiloh River Landfill, excepting any liabilities arising from the illegal disposal of waste by Weirton at the Shiloh River Landfill (i.e., the disposal of hazardous waste (as defined at the time of disposal).
WSCLT hereby releases and waives any and all claims of Weirton and/or WSCLT of any kind whatsoever at law or equity against the WVDEP which Weirton and/or WSCLT ever had, now has or may have hereinafter related to the Shiloh Landfill.
WSCLT hereby releases and waives any and all claims of Weirton and/or WSCLT of any kind whatsoever at law or equity against Shiloh, its successors and assigns which Weirton ever had, now has or may have hereinafter relating in any way to matters involving the Shiloh Landfill excepting any liabilities arising from the illegal disposal of waste by Shiloh at the Shiloh River Landfill (i.e., the disposal of hazardous waste (as defined at the time of disposal).
10. Invalidity. In the event that any one or more of the provisions, or any portion thereof, of this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, then, to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision or any portion thereof, of this Agreement.
11. Execution in Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but which together shall constitute a single agreement. This Agreement may be executed by facsimile signature.
12. Authority to Execute Agreement. Each individual signatory to this Agreement represents that he/she has the authority to execute and deliver this Agreement on behalf of the party for whom he/she is signing.
13. Governing Law. The validity of this Agreement, the terms of this Agreement, and all duties, obligations and rights arising from this Agreement shall be governed by and interpreted in accordance with the laws of the State of West Virginia, without reference to any laws regarding the conflict of laws, and in accordance with the federal laws of the United States.
14. Integration Clause. WSCLT, the WVDEP and Shiloh agree that this Agreement constitutes the entire agreement between them and may not be modified or amended except in a writing signed by WSCLT, the WVDEP and Shiloh, provided, however, that a subsequent modification of the Consent Order and the terms of compliance by Shiloh thereunder shall not require the written consent of WSCLT.
15. Cooperative Effort. WSCLT, the WVDEP and Shiloh have cooperated in the drafting and preparation of this Agreement with the assistance of their respective attorneys, and as such, this Agreement will be interpreted in accordance with its terms, without favor to WSCLT, the WVDEP or Shiloh.
16. Modifications. This Agreement may only be modified, amended or supplemented by a writing executed by WSCLT, the WVDEP and Shiloh with the approval of the United States Bankruptcy Court for the Northern District of West Virginia, subject, however, to the right of the WVDEP and Shiloh to amend or modify provisions of the Consent Order provided that any such modification or amendment does not adversely affect Weirton.
17. Headings. The headings and captions herein are intended for convenience or reference only, and the same will not serve to limit, expand or interpret paragraphs or subparagraphs to which they apply.
UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
IN RE: : Bankruptcy No. 5:03-BK-01802 : WEIRTON STEEL CORPORATION, : Chapter 11 : Debtor. : Honorable L. Edward Friend, II : United States Bankruptcy Judge
ORDER OF COURT
Upon consideration of the Motion ("Motion") of the Weirton Steel Corporation Liquidating Trustee (the "WSCLT Trustee") for an Order Pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure Approving Compromise and Settlement with the West Virginia Department of Environmental Protection (the "WVDEP"), an agency of the State of West Virginia, and Shiloh River Corporation ("Shiloh"), a West Virginia corporation; due and proper notice of the Motion having been given; and it appearing that the terms of the Settlement Agreement are reasonable and fair in light of the particular circumstances of this case, that such terms fall within the reasonable range of litigation possibilities, and that the WSCLT Trustee's decision to settle and compromise the matters addressed in the Motion and the Settlement Agreement is an exercise of reasonable business judgment; it is hereby ORDERED that:
1. Undefined capitalized terms used herein shall have the meanings ascribed to such terms in the Motion.
2. The Settlement Agreement attached to the Motion is approved in all respects.
3. In full and final payment and satisfaction of all claims of the WVDEP related to the Shiloh Landfill in the bankruptcy proceedings of Weirton, Weirton shall pay the WVDEP a cash payment of Two Hundred Fifty Thousand and 00/100 Dollars ($250,000) as an allowed administrative priority claim within three business days following the date the entry of this Order has become final and non-appealable, and which amount shall be placed in an interest bearing trust by the WVDEP and used with respect to the regulatory compliance, maintenance and reclamation of the Shiloh Landfill.
4. In full payment and satisfaction of all claims of the WVDEP may have or have had in the bankruptcy proceedings, except as not otherwise waived or released in paragraphs 6 and 8 of the Settlement Agreement, and specifically, in full payment and satisfaction of those post-petition stipulated penalty claims related to the Consent Decree in Civil Action 5:96-CV-171 (N.D.W.Va), WSCLT shall pay the WVDEP a cash payment of sixty-five thousand dollars ($65,000) (together with the $250,000 payment, the "Settlement Amount") as an allowed administrative priority claim within three business days following the date the entry of this Order has become final and non-appealable. Notwithstanding the ultimate status of the administrative solvency of the Weirton bankruptcy estate, no portion of the Settlement Amount shall be subject to recovery or disgorgement once paid.
5. Upon payment of the Settlement Amount, any and all claims against Weirton and/or WSCLT that the WVDEP has filed, or could in the future file against Weirton and/or WSCLT in Weirton's bankruptcy proceedings, shall be disallowed and expunged.
6. Within five (5) business days following receipt of the Settlement Amount, the WVDEP shall take all necessary action to dismiss the Sale Appeal, with each party to bear its own costs.
7. The Consent Judgment/Order of Dismissal, which dismissed the Board Appeal, entered into by the parties prior to the execution of the Settlement Agreement, is hereby approved.
8. Other than as specifically provided in the Settlement Agreement, with respect to the Shiloh River Landfill, upon payment of the Settlement Amount, neither the WVDEP nor Shiloh will seek other or further payment from WSCLT for any claim of any kind or nature whatsoever arising from or relating to the Shiloh River Landfill; and with respect to all other claims, upon payment of the Settlement Amount, neither the WVDEP nor Shiloh will seek other or further payment from Weirton for any claim of any kind or nature whatsoever arising from or relating to Weirton.
9. Other than as specifically provided in the Settlement Agreement, the WVDEP forever releases and discharges Weirton, its bankruptcy estate, its current and/or former officers, directors, agents, employees, its authorized agent, WSCLT and the liquidating trustee from any and all obligations, claims, causes of action, joinders for sole liability, contribution, indemnity or otherwise, damages, costs, expenses or demands of any kind whatsoever at law or equity which the WVDEP ever had, now has or may have hereinafter relating in any way to matters over which the WVDEP exercises jurisdiction, control, enforcement power or has standing to participate related to Weirton.
10. Other than as specifically provided in the Settlement Agreement, Shiloh, its successors and assigns, forever releases and discharges to the extent that Shiloh has any authority to do so) Weirton, its bankruptcy estate, its current and/or former officers, directors, agents, employees, its authorized agent, WSCLT and the liquidating trustee from any and all liability, claims, causes of action, joinders for sole liability, contribution, indemnity or otherwise, damages, costs, expenses, or demands of any kind whatsoever at law or equity which Shiloh ever had, now has or may have hereinafter relating in any way to matters involving the Shiloh River Landfill.
11. WSCLT forever releases and waives any and all claims of Weirton and/or WSCLT of any kind whatsoever at law or equity against the WVDEP which Weirton and/or WSCLT ever had, now has or may have hereinafter related to the Shiloh Landfill.
12. WSCLT forever releases and waives any and all claims of Weirton and/or WSCLT of any kind whatsoever at law or equity against Shiloh, its successors and assigns which Weirton ever had, now has or may have hereinafter relating in any way to matters involving the Shiloh Landfill excepting any liabilities arising from the illegal disposal of waste by Shiloh at the Shiloh River Landfill (i.e., the disposal of hazardous waste (as defined at the time of disposal).
13. The WSCLT Trustee is authorized to execute, deliver, and implement any and all documents, fully perform any and all obligations, and take any and all actions, reasonably necessary or appropriate to effectuate the Settlement Agreement without further Order of Court.
14. This Court retains jurisdiction to enforce and implement the terms and provisions of this Order, the Settlement Agreement, all amendments thereto, any waivers and consents thereunder, each of the documents executed in connection therewith in all respects, and any and all disputes related to the aforementioned.
BY THE COURT:
Dated: _________, 2005 _______________________________ Honorable L. Edward Friend, II United States Bankruptcy Judge