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Case 05-21304 Document 241-2 Filed in TXSB on 04/09/2008 Page~

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Case 05-21304 Document 241-2 Filed in TXSB on 04/09/2008 Page 2 of 2

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IN THE UNITED STATES]~KRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

In re:

ASARCO LLC, et al. Case No. 05-21207


Chapter 11
Debtors.

In re: )
)
Encycle/Texas, Inc. ) ’ Case No. 05,21304

) Chapter 7
Debtor. )
)

SETTLEMENT AGREEMENT REGARDING THE ENCYCLE SITE

WHEREAS, the Encycle Site, located at 5500 Up River Road, Corpus Christi, Nueces

Co~unty, Texas (the "Site"), was opened by one of ASARCO LLC’s ("ASARCO") predecessors
t
and was sold to Encycle/Texas, Inc. ("~"), a wholly-owned subsidiary of ASARCO, in

1988, and reopened as a waste management and recycling facility;

WHEREAS, ASARCO and Encycle (collectively, "Debtors") negotiated a Consent


!
7

Decree with the United States on behalf of EPA; ~d the State of Texas (the "State"), on behalf

of Texas Commission on Environmental Quality (the "TCEQ"), which was entered by the U,S.

AUS01 ;479718.19
District Court for the Southern District of Texas on October 6, 1999 in United States of America

and State of Texas v. Encycle/Texas, Inc. and ASARCO LLC, Cause No. H-99-1136 (the

"Consent Decree"), pursuant to which the Debtors agreed to, among other things, undertake

certain remediation as set forth in the Consent Decree with respect to the Site;
:i

WHEREAS, ASARCO filed with the :United’ States Bankruptcy Court for the Southern
J~

District of Texas a voluntary petition for relief under Title 11 of the United States Bankruptcy

Code on August 9, 2005 (the "ASARCO Bankruptcy Case");

WHEREAS, other ASARCO subsidiaries subsequently filed for Chapter 11 protection,

including Encycle, which filed its petition for relief on August 26, 2005. Because of concerns

about then approaching Hurricane Rita, the TCEQ requested that the case be converted to

Chapter 7, and that a trustee be appointed as soon as possible. Encycle complied with the

TCEQ’s request and filed a motion to convert 0~ an emergency basis, which was granted by the

Bankruptcy Court on October 24, 2005. Michael Boudloche was appointed as Chapter 7 Trustee

(the "Encycle Trustee") in the case of Encycle (the "Encvcle Bankruptcy Case");

WHEREAS, the Debtors entered into a tolling agreement respecting potential claims by

ASARCO against Encycle (the "Tolling Agreement");

WHEREAS, the United States and the State have asserted that they were not required to

file claims with respect to Debtors’ obligations under the Consent Decree because, they assert,

such obligations are not claims under 11 U.S.C. § 101(5), but that Debtors and any reorganized

debtor(s) must comply with such mandatory injunctive and regulatory and compliance

obligations. Nevertheless, the United States and the State each filed protective proofs of claim

with respect to Debtors’ obligations under the Consent Decree;

WttEREAS, ASARCO has asserted that its obligations under the Consent Decree give

AUS01:479718.19

L
rise to claims that may be discharged in these bankruptcy proceedings;

WHEREAS, some of the work required under the Consent Decree has been completed,

and other work remains to be completed;

WHEREAS, the United States and the State allege some penalties are due under the

Consent Decree;

WHEREAS, the United States on behalf of EPA and the State each filed Proofs of Claim

in the ASARCO Bankruptcy Case (including number 10746 by the United States and numbers

10455, 10456, 10457, 10458, 10464, 10465, 10468, and 10469 by the State) setting forth

liabilities, including liabilities under Sections 9601, et_tAeN., of the Comprehensive Environmental

Response, Compensation, and Liability Act ("C_ERCL_A_,), Section 6901, et!_s_~., of the Resource

Conservation and Recovery Act ("RC.RA’,), Section 1301 of the Federal Clean Water Act

("CWA"), Chapter 361 of the Texas Health and Safety Code ("Tex. Health & Safety Code"),

Chapter 7 of the Texas Water Code ("TWC"), the rules and regulations promulgated pursuant to

those statutes, and other liabilities in connection with the Consent Decree;

WHEREAS, the United States on behalf of EPA and the State each filed Proofs of Claim

in the Encycle Bankruptcy Case (including number 14 by the United States and numbers I 1, 12,

and 13 by the State) setting forth the same liabilities as the claims in the ASARCO Bankruptcy

Case;

WHEREAS, the Encycle Trustee also filed Proofs of Claim in the ASARCO Bankruptcy

Case (numbers 11234 and 9305) asserting various claims against ASARCO relating to the

Consent Decree and other alleged obligations of ASARCO;

WHEREAS, ASARCO has disputed theamount of the liabilities with respect to the Site

filed by the United States, the State, and the Encycle Trustee as set forth in the Proofs of Claim

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and various expert reports submitted by the United States, the State, and the Encycle Trustee;

WHEREAS, the Encycle Trustee has disputed the amount of the liabilities with respect

to the Site filed by the United States and the State,as set forth in the Proofs of Claim and various

expert reports submitted by the United States and the State;

WHEREAS, the Court established a process for estimating the liabilities of the United

States, the State, and the Encycle Trustee with respect to the Site;

WHEREAS, the State, the United States, and ASARCO are desirous that the Encycle

Trustee undertake through his estate to perform the work set forth in Paragraph 7, below, with

respect to the Site;

WHEREAS, the parties hereto desire to settle, compromise and resolve those disputes

which may have otherwise been the subject of an estimation hearing, without the necessity of an

estimation hearing;

WHEREAS, in consideration of, and in exchange for, the promises and covenants
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herein, the parties hereby agree to the terms andpr0v~sions of this Settlement Agreement; and

WHEREAS, this Settlement Agreement is in the public interest and is an appropriate

means of resolving this matter.

NOW, THEREFORE, without the admission of liability or any adjudication on any

issue of fact or law, and upon the consent and agreement of the parties by their attorneys and

authorized officials, it is hereby agreed as follows:

I. JURISDICTION AND VENUE

1. The U.S. Bankruptcy Court for the Southern District of Texas, Corpus Christi

Division, has jurisdiction and venue over the subject matter hereof pursuant to 28 U.S.C. § § 157,

1331, and 1334.

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II. PARTIES BOUND; SUCCESSION AND ASSIGNMENT

2. This Settlement Agreement applies to, is binding upon, and shall inure to the

benefit of the parties hereto, their legal successors and assigns, and any trustee, examiner or

receiver appointed in the ASARCO Bankruptcy Case and/or the Encycle Bankruptcy Case.

III. ALLOWANCE OF CLAIMS

3. In settlement and satisfaction of all claims and causes of action of the United

States on behalf of the EPA, the State on behalf of TCEQ, Encycle, and the Encycle Trustee

against ASARCO with respect to any and all costs of response incurred, or to be incurred, in

connection with the Site and all liabilities and other obligations in connection with the Site

asserted in their Proofs of Claim and other pleadings filed in the Bankruptcy Court, including but

not limited to claims for penalties and supplemental environmental projects under the Consent

Decree, the United States on behalf of the EPA, the State on behalf of TCEQ, and the Encycle
!.

Trustee shall have a combined allowed general unsecured claim in the total amount of

$10,000,000. All payments on this allowed claim shall be made to the Encycle Trustee who

shall maintain them in a segregated account and use all proceeds and all interest thereon from the

allowed claim or sale of the allowed claim solely to perform the work expressly set forth in

Paragraph 7 below which includes but is not limited to the closure and corrective action work

required under the Consent Decree. All expenditures of the proceeds must be approved by

TCEQ after consultation with EPA. Such approval will not be unreasonably denied.

4. Once approved by TCEQ after consultation with EPA, the Encycle Trustee shall

file a motion with the Bankruptcy Court seeking approval of the scope and cost of such work.

For purposes of confirmation proceedings, EPA shall be entitled to vote $3,333,333.33, TCEQ

shall be entitled to vote $3,333,333.33, and’:the Encycle Trustee shall be entitled to vote

$3,333,333.33 on the allowed claim. The Encycle Trustee may sell the allowed claim, but only

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after receiving written approval from TCEQ and EPA of the contract for sale of the allowed

claim. Such approval shall not be unreasonably denied. ASARCO shall release Encycle and the

Encycle Trustee from all claims and liabilities arising, from any causes of action covered by or

intended to be covered by the Tolling Agreement.

5. The allowed claim under this Settlement Agreement shall not be subordinated to

other general unsecured claims pursuant to any provisions of the Bankruptcy Code or other

applicable law that may be contended to authorize or provide for subordination of allowed

claims, including, without limitation, Sections 105 and 510 of the Bankruptcy Code.

6. This Settlement Agreement does not address or resolve in any way the State’s

Natural Resource Damages Claim, Proof of Claim 9815 (the "NRD Claim"), or the estimation of

that claim. Such claim shall be estimated in accordance with such processes as shall be agreed to

by the parties and/or established by the Court. This Settlement Agreement does not address or

resolve in any way liability ASARCO may have to the United States or the State concerning

locations other than the Site.

IV. UNSECURED CLAIM

7. Upon receipt of any distributions on the $10,000,000 allowed unsecured claim

granted herein, whether through the sale of that claim, under a Plan of Reorganization, or

otherwise, the Encycle Trustee shall only use such proceeds and all interest thereon to pay the

costs of (i) the closure and corrective action work required under the Consent Decree, including

necessary demolition, and (ii) other work required under applicable environmental law at the

Site. All expenditures of the proceeds must be approved by TCEQ after consultation with EPA,

and such approval shall not be unreasonably denied. Until the Encycle Trustee has completed

the remediation of the Site to the reasonable satisfaction of the TCEQ, the Encycle Trustee shall

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provide TCEQ and EPA semi-annual reports describing the expenditures and budgets of planned

expenditures, actions, progress, and status of all activities at the Site taken during the reporting

period. The first semi-annual report will be due July 20, 2008, with subsequent reports due no

later than January 20th and July 20th for the following years.

8. After the Encycle Trustee has completed the remediation of the Site to the

reasonable satisfaction of the TCEQ after constdtation with the EPA, upon request from the

Encycle Trustee the TCEQ will issue a "no actlon" letter to the Encycle Trustee indicating that

no further remedial action is required at the Site within a reasonable period of time after a

request by the Encycle Trustee.

9. If there are any excess funds from’the general unsecured claim, or interest

thereon, after both the TCEQ and EPA have agreed that the cleanup of the Site is complete, that

money will go to the creditors in the Encycle Bankruptcy.

10. The Encycle Trustee’s statutory fee, and his special co-counsels’ fees, to the

extent approved by the Bankruptcy Court after notice and opportunity for a hearing, shall be paid

exclusively from the proceeds of the sale of the Encycle Site and shall be superior to any other

claim of the TCEQ related to the Site or EPA to such proceeds. The TCEQ and EPA
i:

acknowledge and accept that the Encycle Trustee has reached a compromise with his special co-

counsel reducing their Bankruptcy Court approved contingency fee from 50% to 25% (split

evenly between the Kanner Firm and the Schmidt Firm) and that it is to be paid exclusively out

of the proceeds of the sale of the Encycle Site. The TCEQ and EPA reserve the right to object at

the appropriate time to payment of this compromised 25% contingency fee to the Encycle

Trustee’s special co-counsels.

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3
V. EXISTING TRUST FUNDS

11. ASARCO waives any claims or:figbts~iif any, relating in any way to the trust
funds held by JP Morgan in account No. 380683 ("JPMorgan Trust") for closure, post-closure,

or corrective action at the Encycle Site. TCEQ is the beneficiary of the funds held in the JP

Morgan Trust account. In accordance with the August 13, 2004, Stipulation and Order

Modifying the Consent Decree, No. H-99-I 136 in the United States District Court for the

Southern District of Texas ("2004 Order"), the Encycle Trustee shall perform closure, post-

closure, or correction action activities at the Site (the "Site Cleanup") through access to the funds

in the JP Morgan Trust in addition to funds from the allowed unsecured claim granted herein.

The Encycle Trustee shall begin the Site Cleanup via access to the JP Morgan Trust as soon as is

reasonably possible after obtaining Bankruptcy Court approval of this agreement. The entity

conducting the Site Cleanup at the Encycle Trustee’s direction will consult with the TCEQ in

connection with the Site Cleanup to determine an appropriate scope of work to expend the funds

remaining in the JP Morgan Trust. All Site Cleanup work must be pre-approved by TCEQ after

consultation with EPA, and such approval shall not be unreasonably denied. The Encycle

Trustee agrees that any reimbursement for Site Cleanup from the JP Morgan Trust will be paid

directly to the entity performing the work, i.e., not to the Encycle Estate. With respect to funds

from the JP Morgan Trust paid to reimburse the expense of the Site Cleanup, the Encycle Trustee

agrees that (i) the Encycle Trustee’s commission will not be paid from any part of the funds in

the JP Morgan Trust, (ii) any such commissions or fees will be paid only if allowed under

applicable law and pursuant to Bankruptcy Court order, (iii) the Encycle Trustee’s special

counsels are not entitled to a contingency fee (including but not limited to any claimed

entitlement under the November 27,~ 2006, order in the Encycle/Texas Inc. bankruptcy) in any
J

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way based on the funds in the JP Morgan TruSt being a recovery, and (iv) to the extent the

Encycle Trustee is entitled to a commission, it will be paid exclusively from proceeds from the

sale of the Encycle Site.

VI. OUTSTANDING OBLIGATIONS

12. Except as specifically provided in Paragraph 22 and subject to the approval of the

District Court for the Southern District of Texas (the "Southern District Court") overseeing the

Consent Decree, all obligations of ASARCO to perform work under the Consent Decree and any

other outstanding consent decree, unilateral administrative order ("UAO"), or administrative

order on consent with respect to the Site are fully res01ved and ASARCO shall be removed as a

party to such orders or decrees pursuant to the terms hereof. Except as specifically provided in

Paragraph 22, such Consent Decree, UAO, or Administrative Order on Consent shall be

modified or otherwise conformed to the terms of this Settlement Agreement.

VII. COVENANTS NOT TO SUE AND RELEASES

13. With respect to the Site (including releases of hazardous substances from any

portion of the Site, and all areas affected by natural migration of such substances from the Site)

and except as specifically provided in Paragrapl~ 6 with respect to the NRD Claim and Section

IX (Reservation of Rights), the United States on behalf of EPA, the State on behalf of the TCEQ,

the Encycle Trustee, and Encycle covenant not to sue or assert any civil claims or causes of

action against ASARCO pursuant to Sections 106, 107, and 113 of CERCLA, 42 U.S.C. §§

9606, 9607, and 9613, RCRA, 42 U.S.C. § 690i et se~, CWA § 1301, Tex. Health & Safety

Code Chapter 361, TWC Chapter 7, any similar state law or common law, any liabilities or
~J
4

obligations arising from the Consent Decree, or any other liabilities or obligations asserted in the

Proofs of Claim.

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14. This Settlement Agreement in no way impairs the scope and effect of ASARCO’s

discharge under Section 1141 of the Bankruptcy Code as to any third parties or as to any claims

that are not addressed by this Settlement Agreement.

15. Without in any way limiting the covenants not to sue (and the reservations

thereto) set forth in Paragraph 13, and notwithstanding any other provision of this Settlement

Agreement, such covenants not to sue shall also apply to ASARCO’s successors and assigns,

officers, directors, employees, and trustees, but only to the extent that the alleged liability of the

successor or assign, officer, director, employee, or trustee of ASARCO is based solely on its

status as and in its capacity as a successor or assign, officer, director, employee, or trustee of

ASARCO.

16. The covenants not to sue contained in Paragraph 13 of this Settlement Agreement

extend only to ASARCO and the persons described in Paragraph 15 above, and do not extend to

any other person. Nothing in this Agreement is intended as a covenant not to sue or a release

from liability for any person or entity other than the United States, the State, ASARCO, the

persons described in Paragraph 15, Encycle and the Encycle Trustee. The United States, the

State, ASARCO, the Encycle Trustee, and Encycle expressly reserve all claims, demands, and

causes of action either judicial or administrative, past, present or future, in law or equity, which

these entities may have against all other persons, firms, corporations, entities, or predecessors of

ASARCO for any matter arising at or relating inany manner to the sites or claims addressed

herein.

17. Nothing in this Settlement Agreement shall be deemed to limit the authority of the

United States or the State to take any response action Qn the Encycle Site under Section 104 of
!:: ~ii

CERCLA, 42 U.S.C. § 9604, or any other applicable law or regulation, or to alter the applicable

AUS01:479718.19 10
legal principles governing judicial review of any: action taken by the United States or the State

pursuant to that authority. Nothing in this Settlement Agreement shall be deemed to limit the

information gathering authority of the United States or the State under Sections 104 and 122 of
: ~, ’i ....

CERCLA, 42 U.S.C. 9§ 9604 and 9622, Secti0n’~007 0f RCRA, 42 U.S.C. § 6927, or any other
i

applicable law or regulation, or to excuse the: Debtors from any disclosure or notification

requirements imposed by CERCLA or any other applicable law or regulation.

18. ASARCO covenants not to sue and agrees not to assert any claims or causes of

action with respect to the Site, except as provided in Paragraph 22 and Section IX, including but

not limited to, any direct or indirect claim for reimbursement from the Hazardous Substance

Superfund (established pursuant to the Internal Revenue Code, 26 U.S.C. § 9507) through

CERCLA Sections 106(b)(2), 107, 111, 112, 113, 42 U.S.C. §9 96060), 9607, 9611, 9612,

9613, or any other provision of law (including reimbursement under State law), against the

United States or the State, including any of their departments or instrumentalities, Encycle, or the

Encycle Trustee under Section 107 or 113 of CERCLA, 42 U.S.C. §9 9607, 9613 or comparable

provisions under State law; and any claims arising out of response activities at the Site. Nothing

in this Settlement Agreement shall be construed to constitute 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).

19. The Encycle Trustee and his estate covenant not to sue and agree not to assert any

claims or causes of action with respect to the work performed under this Settlement Agreement,

including but not limited to, any direct or indirect claim for reimbursement from the Hazardous
[;

Substance Superfund (established pursuant to the Internal Revenue Code, 26 U.S.C. § 9507)

through CERCLA Sections 106(b)(2), 107, 111, 112, 113, 42 U.S.C. §§ 9606(b), 9607, 9611,

9612, 9613, or any other provision of law (including reimbursement under State law), against the

AUS01:479718.19 11

i,
United States or the State, including any of their departments or instrumentalities, under Section

107 or 113 of CERCLA, 42 U.S.C. §§ 9607, 9613 or comparable provisions under State law.

Nothing in this Settlement Agreement shall be construed to constitute 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).

These covenants not to sue are conditioned upon the EPA and TCEQ’s satisfactory performance

of their respective obligations under this Settlement Agreement to the Encycle Trustee and his

estate.

20. In consideration of the actions that will be performed by the Encycle Trustee

under the terms of the Settlement Agreement, and except as specifically provided in Paragraph

22 (the NRD Claim) and Section IX (Reservation of Rights), the United States on behalf of EPA

and the State on behalf of TCEQ covenant not to sue or take administrative action against the

Encycle Trustee and his estate pursuant to Sections 106, 107, and 113 of CERCLA, 42 U.S.C. §§

9606, 9607, and 9613, RCRA, 42 U.S.C. § 6901, et seq., CWA § 1301, Tex. Health & Safety

Code Chapter 361, and TWC Chapter 7, any similar state law or common law, for performance

of the work performed under this Settlement Agreement. These covenants not to sue are

conditioned upon the satisfactory performance of the Trustee’s obligations under this Settlement

Agreement. In addition to all protections provided to the Encycle Trustee under the law, the

Encycle Trustee and his employees shall not be personally liable in the absence of a finding by

the Bankruptcy Court that they were grossly negligent or committed willful misconduct in

relation to the Trustee’s duties.

21. Encycle and the Encycle Trustee, on the one hand, and ASARCO on the other

hand, further release each other from any and all claims they may have against each other,

including, but not limited to claims for fraudulent transfer or any other corporate law claims.

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z

VIII. THE NRD CLAIM

22. Except as provided in Paragraph 3, herein, ASARCO, Encycle, the Encycle

Trustee, and the State reserve all of their claims, defenses, and substantive and procedural rights

and positions relating to the NRD Claim in pending ASARCO Bankruptcy Case and the

Encycle Bankruptcy Case. Nothing herein nor the entry into this Settlement Agreement shall

affect the claims, defenses and substantive and procedural rights and positions of ASARCO and

the State regarding this claim.

IX. RESERVATION OF RIGHTS

23. The covenants not to sue herein do not pertain to any matters other than those

expressly specified therein. The United States and the State reserve, and this Settlement

Agreement is without prejudice to, all rights against the Debtors, the Encycle Trustee or other

persons with respect to all other matters,including but not limited to: (i) any action to enforce the

terms of this Settlement Agreement; (ii) liability for Debtors’ or the Encycle Trustee’s future acts

respectively creating liability under RCRA, CERCLA, CWA, Chapter 361 of the Tex. Health &

Safety Code, or Chapter 7 of TWC that occur after the date of this Settlement Agreement; and

(iii) criminal liability. Solely for the purposes of this Paragraph, Debtors’ or the Encycle

Trustee’s future acts do not include continuing releases related to Debtors’ pre-petition conduct

as described in this Settlement Agreement.

24. The United States and the State reserve, and this Settlement Agreement is without

prejudice to, all rights against the Debtors or other persons with respect to locations other than

the Site. This Settlement Agreement in no way affects the enforceability of or the obligation of

ASARCO to comply with TNRCC Agreed Order ;Docket No. 96-0212-MLM-E issued on August

29, 1996, concerning the E1 Paso Texas Smelter.

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25. Nothing in this Settlement Agreement Shall be construed to create any rights in, or

grant any cause of action to, any person not a part to this Settlement agreement or listed in

Paragraph 15. Except as specifically providedln this Settlement Agreement as to the Debtors,

nothing in this Settlement Agreement shall create any rights against ASARCO under the Consent

Decree.

X. CONTRIBUTION PROTECTION

26. As of the Effective Date, ASARCO is entitled 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 include all costs of response with respect to the Site.

XI. JUDICIAL APPROVAL

27. The settlement reflected in this Settlement Agreement shall be subject to approval

by the Bankruptcy Court pursuant to Bankruptcy Rule 90 I9 and by the Southern District Court.

This Settlement Agreement shall also be lodged with the Southern District Court and submitted

for public comment following notice of the Settlement Agreement in the Federal Register and

the Texas Register. The United States and the State reserve the right to withdraw or withhold

consent if the public comments regarding the Settlement Agreement disclose facts or

considerations which indicate that the Settlement Agreement is inappropriate, or improper, or


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inadequate, i

28. The Debtors shall move promptly for Bankruptcy Court approval of this

Settlement Agreement and shall exercise commercially reasonable efforts to obtain such

approval. This Settlement Agreement shall not be effective until it is approved by both the

Bankruptcy Court under Rule 9019 and the Southern District Court following public comment.

AUS01:479718.19 14
If this Settlement Agreement is not authorized and approved by both the Bankruptcy Court and

the Southern District Court, this Settlement Agreement shall be of no force and effect,

whereupon nothing herein shall be deemed an admission of any fact or waiver of any right of any

party with respect to the matters contained herein.

XII. RETENTION OF JURISDICTION

29. This Court shall retain jurisdiction over both the subject matter of this Settlement

Agreement and the parties hereto, for the duration of the performance of the terms and provisions
¯ " ~,
of this Settlement Agreement for the purpose of enabling any of the Settlement Agreement

parties to apply to the Court at any time for such further order, direction and relief as may be

necessary or appropriate for the construction or interpretation of this Settlement Agreement, or to

effectuate or enforce compliance with its terms. The Southern District Court retains jurisdiction

for all other matters related to the Consent Decree.

30. The TCEQ, EPA, and the Encycle Trustee agree to take any dispute between the

TCEQ and the Encycle Trustee or the EPA and She Encycle Trustee concerning this settlement

agreement, including but not limited to the scope of post-closure and corrective action work, to a

mutually agreed upon third-party mediator and paid for as an administrative expense of the

Encycle/Texas Inc. estate. Only after such mediation has failed to achieve agreement will the

dispute then be taken to the appropriate United States Federal Court for the Southern District of

Texas.

XIII. EFFECTIVE DATE

31. The Effective Date of this Settlement Agreement shall be the later of the dates

upon which it has been approved by the Bankruptcy Court and by the Southern District Court.

AUS01:479718.19 15
XIV. SIGNATORIES/SERVICE

32. The signatories for the parties each certify 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.

AUS01:479718.19 16
XIV. SIGNATORIES/SERVICE

32. The signatories for the parties each certify 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 UNDERSIGNED PARTIES ENTER INTO THIS SETTLEMENT AGREEMENT

FOR THE UNITED STATES

Date:
Ronald J. TenpasP
Assistant Attorney General
Environment and Natural Resources Division
U.S. Department of Justice

Date:

Alan S. Tenenbaum
David L. Dain
Kirk Koester
Environment and Natural Resources Division
Environmental Enforcement Section

R1 rharel E Cr.
Regional Administrator
U.S. EPA, Region 6
>, +> .

AUS01:479718.19 16
XIV. SIGNATORIES/SERVICE

32. The signatories for the parties each certify 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 documcnt.

,i.i .....
THE UNDERSIGNED PARTIES ENTER INTO THIS SETTLEMENT AGREEMENT

FOR THE UNITED STATES

Assistant Attorney General


Environment and Natural Resources Division
U.S. Department of Justice

Date:

Alan S. Tenenbaum
David L. Dain
Kirk Koester
Environment and Natural Resources Division
Environmental Enforcement Section

Date:

U.S. EPA, Region 6

AUS01:479718.19 16
FOR THE STATE OF TEXAS

Date:
Glenn ShanIde
Executive Director
Texas Commission on Environmental Quality

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

JEFF L. ROSE
Deputy First Assistant Attorney General

DAVID PREISTER
Assistant Attorney General
Acting Chief, Natural Resources Division

A ood
A~s~t~t Attorney General
lXP~tural Resources Division
Office of the Attorney General of Texas

A t./S01:479718,19 17
Thomas L. Aldrich
Vice ’President, Environmental
Affairs
Date:

Douglas E. McAllister
Vice President, Legal Counsel

FOR ENCYCLE

Date:
Mike Boudloche
Encycle/Texas, Inc. Chapter 7 Trustee

AUS01:479718.19
FOR ASARCO

Date:
Thomas L. Aldrich
Vice President, Emdronmental
Affairs
Date:

John Low
Vice President, Mining

FOR ENCYCLE

Date: ~/@)/~"
Mike Boudloche
Encycle/Texas, Inc. Chapter 7 Trustee

AUS01:479718.19 ]8