Loading...
HomeMy WebLinkAboutNB 6 MOUNTAINEER REFIN 04-05-93AGENDA_ NEW BUSINESS N0. 6 4-5-93 DATE: MARCH 31, 1993 Inter - TO: nter- TO: HONORABLE MAYOR AND CITY COUNCILMEMHERS FROM: CITY ATTORNEY SUBJECT: MODNTAZWEER REFINERY Recommendations: 1. Authorize $7,000 in responsible party costs. 2. Authorize City of Tustin to join PRP Committee. Background; In July of 1992, the City of Tustin was notified by the Environmental Protection Agency ("EPA"), Region VIII, that it was among the list of parties partially responsible for the cost of clean-up of environmental contamination at a waste oil refinery site located in La Barge, Wyoming, the Mountaineer Refinery. The EPA notice arose from 1,580 gallons of waste oil, which had been collected by the City of Tustin's vehicle maintenance operations and later delivered to the Mountaineer Refinery for recycling beginning in March of 1988 through June of 1989. Although the City of Tustin acted in accordance with the law at the time of delivery of the waste oil, the Mountaineer Refinery was later selected by EPA as a Superfund site for clean-up of environmental contamination. Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980,' as amended (110ERCLA11), laws require ell parties who have contributed materials to a Superfund site to pay a share of the costs of clean-up. It has become quite common in recent years for responsible parties to form cooperative working groups for the purposes of sharing costs and negotiating with EPA as to the propriety of the clean-up chosen for a Superfund site. Many working groups have been successful in reducing the overall costs to each member. In exchange for this type of cooperative effort, it is common for EPA to provide cooperative working groups with limited releases of responsibility, upon resolution of the problems at a site, one of the important activities generally undertaken by cooperative working groups is the work involved in identifying other responsible parties and requesting a monetary Battlement proportionate to each contributorfs fair share of costs. U4-Ul-Y3 Ub:bbAM PkUM KUUXft,WUUVXUVP,bfXA I 10610 i,iII hRLL ruin uu4 Honorable Mayor and City Councilmembers March 31, 1993 Page 2 The City of Tustin has been approached by the core contributors to the Mountaineer Refinery, which have formed a working group called the PRP Committee (PRP means potentially responsible party). The PRP Committee is requesting the participation of the City of Tustin. The PRP Committee has to date worked closely with EPA in monitoring and approving clean-up activities at Mountaineer Refinery, and the PRP Committee has already paid some or the clean-up required by EPA, sharing the costs among themselves. At this time the City Attorney is recommending that the city of Tustin agree to join the PRP Committee. The City's participation is the best way to limit its cost contribution and avoid further legal fees stemming from litigation or other EPA action. If the Council chooses not to approve the participation, it can expect to be a party to a lawsuit brought by the PRP Committee to compel contribution. A good basis exists under Federal law for such a suit to be successful. The City of Tustin's costs can be defined as follows: 1. $2,000 in contribution to the P" Committee as a fair share of administrative costs; 2. $4,425 in additional Committee costs of response and clean-up (this represents a .59% share of $750,000 expended by the PRP Committee to date). Accordingly, the approval of the Council is recommended for payment not to exceed $7,000 to the Mountaineer Refinery PRP Committee. The estimated future cost to the City is $23,600 (a .59% share of the $4 million estimated total remediation cost at the Mountaineer Refinery site). Approval for additional contribution costs will be sought from the Council at a later date. The City of Tustin's share of costs is low because it was a low volume contributor of waste oil to the site. It should be noted that as the PRP Committae moves forward in its process of identifying and requesting the participation of other responsible Parties, the City of Tustin's percentage share of costs will be lowered as the volume of contributors increases. U4 -U1-93 UB WM NNM KUUXKh,wuuiKUrr,JrKA ju IUan n Ljjr nALL ruU4/UU4 Honorable Mayor and City Couneilmembers March 31, 1993 Page 3 Recommended Action: 1. Approval of $7,000 expenditure for cost of participation in PRP Committee; and 2. Approval of execution of a PRP Contribution Agreement, in a form approved by the City Attorney. JAME G. OURKE BETTY C. 1RGWICH City Attorney Deputy City Attorney SCM;;.►:n:ma:u7(ICa03,jA) cc: Williaw.Huston GROUP PARTICIPATION AGREEMENT FOR THE MOUNTAINEER REFINERY SITE This Agreement is made as of the date of execution set forth below by and among the parties (hereinafter the "Members") whose authorized representatives have executed this Agreement. WHEREAS, the Members recognize the possibility that each may be considered a potentially responsible party ("PRP") in connection with the Mountaineer Refinery Site located near La Barge, Wyoming (the "Site") and that as individual entities there may be a diversity of interest among the Members, but that by acting in concert the interest of each individual Member can often be effectively represented by the group, and in order to achieve that end, all Members should cooperate to achieve the group's goals and compromise individual interest in an effort to reach consensus on issues presented to the group; and WHEREAS, the Members recognize that it is in their collective interest to have as many parties as possible participate and, therefore, the Members are dedicated to identifying potential PRPs, locating them and encouraging them to join the group; and WHEREAS, without admitting any fact, responsibility, fault or liability in connection with the Site, the Members hereto wish to (1) devote their resources to respond efficiently to any demands and claims that may be asserted by the United States or the State of Wyoming in connection with the Site; (2) allocate among themselves common legal, technical, administrative, and other costs incurred in connection with this matter while minimizing such costs and ensuring that non- participating PRPs bear response costs to the maximum extent possible; (3) preserve and protect the confidentiality of documents, information and work product received and developed by the PRP group on behalf of its Members; and (4) cooperate among themselves in this effort. NOW, THEREFORE, in consideration of the foregoing, the Members mutually agree as follows: 1. Mountaineer Refinery PRP Committee. The Members hereby organize and constitute themselves as the Mountaineer Refinery PRP Committee (hereinafter the "PRP Committee"). Each Member whose authorized representative has executed this Agreement is a Member of the PRP Committee. F:\DATA\NP1\RBOC\74368.15 February 11, 1993 4:20pm 2. Purpose. 2.1 Activities. It is the purpose of this Agreement that the terms hereof shall control the manner and means by which the Members will: (a) organize and conduct a common response to any claims that may be asserted by the United States, the State of Wyoming, or others relating to the Site, including, but not limited to, the PRP Committee's performance of any response actions or the organizing and conducting of a common defense for selected claims. Notwithstanding the foregoing, common responses shall not be extended to claims that do not apply to the Members of the PRP Committee generally; (b) organize and conduct negotiations with the United States Environmental Protection Agency ("EPA"), the State of Wyoming, and other persons concerning the PRP Committee's settlement of all or a portion of any alleged claims against the Members; (c) retain and pay, if so chosen, common counsel and common technical consultants and determine the scope of work, budget and schedule for work performed by common counsel and/or common technical consultants; (d) raise and spend all reasonably necessary funds to implement these purposes; (e) take all necessary and reasonable actions to effectuate this Agreement; (f) allocate among themselves all costs incurred or to be incurred as authorized by this Agreement, including, but not limited to, cost of common counsel, technical, administrative and other costs approved by the PRP Committee ("Shared Costs"); and (g) initiate cost recovery or contribution actions against or settlement negotiations with any non- participating PRP. 2.2 Members' Cooperation. The Members shall cooperate with each other to effectuate the purposes of this Agreement. Each Member hereby agrees that it shall not initiate legal action against another Member arising out of issues involving the Site so long as both are Members. 3. Organization and Procedures. 3.1 Committees and Subcommittees. In order to carry out the purposes of this Agreement, the Members do hereby establish an Executive Committee, which shall create an Allocation Subcommittee, a Technical Subcommittee and such other -2- subcommittees as it may deem appropriate to assist the Executive Committee in the matters for which the Executive Committee is authorized. Each Member, and any individual serving on the Executive Committee or any subcommittee on behalf of any Member, agrees, by virtue of such service to maintain the privileged nature and confidentiality of all communications and proceedings of such committees; such obligation shall continue in the event such individual should leave the employ of or cease to represent such Member, or in the event any Member elects to leave the PRP Committee. The Members on the Executive Committee and subcommittees shall serve as volunteers without compensation and without reimbursement for individual expenses from the PRP Committee, except as authorized and approved by the PRP Committee. 3.2 Authority to Decide. The Members shall strive to reach consensus on issues of common interest. Notwithstanding the foregoing, each Member shall have the authority to act on his/her own behalf if the particular Member's interest is independent of the PRP Committee's interest or if the Member determines an individual action or response is necessary. 3.3 Meetings. The Members may authorize or direct actions under this Agreement at meetings duly held and called for such purpose, which meetings shall be called regularly by the Executive Committee. Meetings of the PRP Committee may be called for any purpose at any time by any two (2) or more Members of the Executive Committee or by any five (5) or more Members of the PRP Committee. Meetings may be held by telephone conference. 3.4 Notice of Meetings. Written notice of the time, place and purpose of any meeting of the PRP Committee shall be provided to each Member entitled to vote at such meeting at least five (5) business days before the date of such meeting either personally, by mail or by other means of written communication, addressed or telecopied to each Member at the address or telecopy number appearing on the service list maintained by the Executive Committee. In the event a meeting is called on less than five (5) business days written notice, the Members calling the meeting shall make a reasonable effort to provide notice in fact to every Member. Matters may be referred to the PRP Committee by the Executive Committee by mail ballot requesting an executed response within a specified time period not more than five (5) business days after receipt. 3.5 Consensus Decisionmaking. Any matter under this Agreement may be referred to a meeting of the PRP Committee by the Executive Committee. Any matter involving the allocation or assessment of financial obligations to Members shall be referred to the PRP Committee for a decision. Additionally, any proposed settlement with government agencies or third parties shall be referred to the PRP Committee for a decision. The PRP Committee shall attempt to make decisions by consensus. -3- 3.6 Voting Power. (a) Unless specified otherwise in this Agreement, any matter properly put to the PRP Committee for a vote shall be decided by a majority (more than fifty percent (50%)) of the Members of the PRP Committee in attendance and voting (in person or by proxy), so long as a quorum, as defined in Section 3.8, is represented and so long as a majority (more than fifty percent (50%)) of the Voting Power (as defined below) of the Members in attendance and voting (in person or by proxy) approves such decision by votes cast in person or by proxy. Each Member shall have voting rights ("Voting Power") in the proportion that the amount of financial contribution assessed and paid by such Member under this Agreement (excluding the initial payment made pursuant to Section 8.2 of this Agreement) as of the last assessment made pursuant to this Agreement prior to such meeting bears to the total amount of financial contribution assessed and paid by all Members under this Agreement as of such assessment ("pro rata vote"); provided that any Member that has been assessed a financial contribution which assessment remains unpaid at the time the meeting is called may vote only upon payment of the full assessment prior to the voting process. For purposes of the initial assessment the Voting Power of each Member shall be as set forth in Exhibit 1, which is attached hereto. (b) In the event a quorum is not in attendance, a vote may still be taken by delivering a ballot to all Members. Additionally, the Executive Committee may at any time choose to extend the right to vote by ballot to Members not in attendance on any proposal before the PRP Committee whether or not a quorum is in attendance or a vote of the quorum has been taken. Any such ballot is to be returned to the Executive Committee as directed, but not more than five (5) business days from receipt thereof. In order for the ballot vote to be valid, a majority of all Members must vote. 3.7 Voting by Proxy. A Member eligible to vote at a PRP Committee meeting may assign in writing, in a form established by the Executive Committee, its vote (in accordance with Section 3.6 of this Agreement) to another Member eligible to vote at the meeting. 3.8 Ouorum. To establish a quorum, one-third (1/3) of the eligible Members (as defined in Section 3.6 of this Agreement) and thirty percent (30%) of the eligible Voting Power (as defined in Section 3.6 of this Agreement) of the PRP Committee shall be present in person, linked by telephone or represented by proxy at any PRP Committee meeting. 3.9 Right of Separate Counsel. Notwithstanding that common counsel may be retained with respect to any matter, each Member reserves the right to select and retain its own counsel to represent such Member on any matter, and to advise common counsel -4- that such Member is not to be represented by or through common counsel with respect to any such matter. 3.10 No Binding Power. The PRP Committee shall not have the authority to bind any individual Member to any settlement agreement with EPA, the State of Wyoming or any other person or entity with respect to any liability at the Site, except to the extent that notice is provided to each Member of the PRP Committee and the Member is given the opportunity to withdraw as set forth in Section 9.1 below. 4. Executive Committee. 4.1 Executive Committee Members. The Executive Committee shall consist of at least three (3) Members who express a willingness to make its representative reasonably available to participate actively in the functions of the Executive Committee. The initial composition and subsequent modifications of the Executive Committee shall be approved by a majority vote of a quorum of the PRP Committee. A majority of the Members of the Executive Committee shall be present in person, linked by telephone or represented by proxy at any Executive Committee meeting to take action. 4.2 Enumerated Powers of the Executive Committee. The powers, duties and responsibilities of the Executive Committee shall include: (a) retaining, coordinating, supervising and directing the activities of common counsel, if so chosen; (b) selecting, retaining and determining the activities of any contractors and consultants retained for assistance in the matter and seeking advice and assistance in this role from the Technical Subcommittee; (c) negotiating and referring settlement matters to the PRP Committee; (d) electing a Chairperson of the Executive Committee who shall also act as Chairperson of the PRP Committee; (e) appointing subcommittees to handle specific matters. The Executive Committee shall notify all Members of its intent to create each proposed subcommittee and shall appoint to the subcommittee a representative of any Member who expresses a willingness to make its representative reasonably available to participate actively in the subcommittee's functions; (f) recommending to the PRP Committee a method of allocating Shared Costs and seeking the advice and recommendation of the Allocation Subcommittee in this role; Q.'fl (g) negotiating with the EPA and other persons with respect to all matters arising out of the Site; (h) recommending to the PRP Committee that issues raised by any party to this Agreement relating to the breach of this Agreement or to enforce the terms hereof be first resolved, if possible, by negotiation before considering litigation against that party; (i) circulating to the PRP Committee such substantive pleadings, motions, or other written submissions as the Executive Committee deems necessary in order to allow a Member to determine if it wishes to exercise its option under Section 3.9 hereof; and (j) conducting such other activities that are necessary and proper to carry out the purposes of this Agreement. 4.3 Shared Costs. Those activities authorized by the Executive Committee or the PRP Committee to be incurred on behalf of the PRP Committee shall be funded by the Members as Shared Costs. 4.4 Litigation Against Other Persons. The Executive Committee may recommend to the PRP Committee that a claim be _ asserted on behalf of the Members against other persons. No such claim may be asserted by common counsel, if one exists, under this Agreement without the consent of a majority of the Voting Power of the PRP Committee, and any Member may elect to decline participation in any such suit and may, but need not, in lieu of such participation assign its claims to the other Members. Nothing in this paragraph shall affect or impair the right of any Member to assert any claim in its own name and right against any person. 4.5 Voting. Voting by the Executive Committee shall be by majority vote of all Members of the Executive Committee with each Member having an equal vote. 4.6 No Binding Power. The Executive Committee shall not have the authority to bind the PRP Committee or any individual Member to any settlement agreement with EPA, the State of Wyoming or any other person or entity with respect to any liability to the Site. 4.7 Reports to the PRP Committee and Call for PRP Committee Meetings. The Executive Committee shall report in writing its decisions, actions and recommendations to the PRP Committee from time to time as may be necessary to keep the PRP Committee fully informed of matters covered by this Agreement, and shall call periodic meetings of the PRP Committee and refer to such meetings for a vote any matters which, in the judgment of the Executive Committee, should be referred. 4.8 Call for and Notice of. Executive Committee Meetings. The Executive Committee may authorize or direct actions under this Agreement only at meetings duly held and called for such purpose, which meetings should be called regularly by the Executive Committee. Meetings of the Executive Committee may be called by the Chairperson or by any two (2) Members of the Executive Committee. Whenever feasible, written notice of the time, place and purpose of any meeting of the Executive Committee shall be given to each Executive Committee Member at least five (5) business days and not more than thirty (30) calendar days before the date of such meeting either personally, by mail or by other means of written communication, charges prepaid, addressed to each Member at the address appearing on a service list to be maintained by the Executive Committee. In the event a meeting is called on less than five (5) business days written notice, the Members calling the meeting shall make a reasonable effort to provide notice in fact to every Executive Committee Member. Notice may be accomplished by telecopy or telephone to those Members who so request. Meetings may be held by telephone conference. 5. Technical and Allocation Subcommittees. 5.1 Technical Subcommittee Members. The Technical Subcommittee shall consist of Members appointed by the Executive Committee from among Member volunteers who shall supply technically qualified representatives prepared to participate actively on the Technical Subcommittee. 5.2 Powers and Duties of the Technical Subcommittee. The powers and duties of the Technical Subcommittee shall include: (a) acting in response to requests by the Executive Committee or its designee to provide assistance in any matter, including assistance with the activities of any contractors and/or consultants retained in connection with the matter and in reviewing and analyzing technical data, studies and other materials relating to the Site; (b) selecting a liaison representative to coordinate activities with the Executive Committee; and (c) electing a Chairperson of the Technical Subcommittee. 5.3 Allocation Subcommittee Members. The Allocation Subcommittee shall consist of all Members that wish to participate. Members who wish to participate shall supply one qualified representative prepared to participate actively on the Allocation Subcommittee. -7- 5.4 Powers and Duties of the Allocation Subcommittee. The powers and duties of the Allocation Subcommittee shall include: (a) receiving and evaluating information as directed by the Executive Committee; (b) interviewing and recommending a person or entity to be retained as an allocation consultant; (c) locating PRPs through perusal of all records available to the PRP Committee, held by the current owner/operator of the Site, CERCLA § 104(e) responses, interviews with knowledgeable persons, and obtaining, assembling and maintaining information about any materials sent to the Site by any alleged generator or transporter; (d) advising and recommending to the Executive Committee and submitting reports describing a means of fairly and equitably allocating on a final basis Shared Costs among the Members; (e) undertaking such investigations and activities as may be appropriate to enable the Allocation Subcommittee to produce such reports; (f) maintaining a tabulation of interim allocation percentages for Members, based on volume and/or such other criteria as approved by the PRP Committee, until such time as a final allocation is approved by the PRP Committee; (g) selecting a liaison representative to coordinate activities with the Executive Committee; (h) electing a Chairperson of the Allocation Subcommittee; and (i) implementing the procedures for resolving allocation disputes and issues among the Members as set forth in Section 6 below. 5.5 Decisions of the Technical and Allocation Subcommittees. The Members of the Technical and Allocation Subcommittees shall attempt to make decisions by consensus upon all matters within the scope of their powers and duties; however, on any matter put to a vote, such matter shall be decided by a majority voting of the Members present in person or by proxy at the meeting with each Member of the subcommittee having an equal vote. Subcommittees shall not have the authority to bind the PRP Committee, the Executive Committee or any individual Member to any settlement agreement with EPA, the State of Wyoming or any other person or entity with respect to any liability to the Site. U -M 5.6 Call for, and Notice of. Meetings. The Technical and Allocation Subcommittees may authorize and direct actions under this Agreement only at meetings duly called and held for such purpose, which meetings should be regularly called. Meetings of the Technical and Allocation Subcommittees may be called by the Executive Committee Chairperson, the respective subcommittee chairperson, or any three (3) subcommittee Members. Whenever feasible, written notice of the time, place and purpose of any meeting of the Technical and Allocation Subcommittees shall be given to each subcommittee Member at least five (5) business days and not more than thirty (30) calendar days before the date of such meeting either personally, by mail or by other means of written communication, charges prepaid, addressed to each subcommittee Member at the address maintained by the chairperson of the subcommittee. In the event a meeting is called on less than five (5) business days written notice, the Members calling the meeting shall make a reasonable effort to provide notice in fact to every subcommittee Member. Meetings may be -held by telephone conference. 6. Dispute Resolution. In the event of a good faith dispute with respect to a Member's gallonage attribution or other waste information in the reports prepared on behalf of the PRP Committee, the dispute shall be heard by the Dispute Resolution Work Group (the "Work Group") and the final determination rendered in accordance with the procedures set forth below. The members of the Work Group shall consist of volunteer Members and shall be appointed by the Allocation Subcommittee. 6.1 Filing a Dispute. Any Member in good standing may, in good faith, dispute its gallonage attribution or other waste information by submitting to each member of the Work Group a written statement consisting of a summary of the basis of the challenge; a statement of what the Member believes to be the correct attribution; any and all pertinent documentation; and a notarized certification that the documents submitted represent all known documentation within the Member's possession and control relevant to the Member's gallonage or waste information that has not already been accurately identified in the reports prepared by the PRP Committee's consultant. 6.2 Limitations. A Member must dispute its gallonage attribution or other waste information no later than 120 days after the date of the final report on gallonage attributions prepared by any consultant on behalf of the PRP Committee. No Member shall dispute its gallonage attribution or other waste information more than once, except as provided in subparagraph 6.3. 6.3 Revised Attribution or New Members. If any Member's gallonage attribution changes as a result of newly - discovered waste information and not due to the resolution of any dispute brought by that Member, the Chairperson of the Work Group shall notify the Member in writing and the Member may dispute the revised attribution within 120 days from receiving such notification. Any Member joining the PRP Committee after this dispute resolution procedure becomes effective may dispute its gallonage attribution or waste information within 120 days from the date the Member executes this Agreement. 6.4 Submission of Information. The Member filing a dispute may submit to the Work Group such information as it desires, subject to reasonable limitations as the Chairperson of the Work Group deems appropriate, and shall produce additional information as the Chairperson deems necessary to an understanding and determination of the dispute. 6.5 Meetings. The Chairperson of the Work Group shall hold meetings on disputes at least once every sixty (60) days during the period in which Members may file disputes, or more frequently as the Chairperson deems appropriate. The Work Group must address a dispute at the first scheduled hearing following submission of the dispute by the Member, provided the submission is made at least fourteen (14) days in advance of such scheduled meeting. Written notices of the time, place and specific allocation dispute(s) to be addressed shall be provided to each Work Group member at least ten (10) days before the date of the hearing. 6.6 Work Group's Determination. A determination of a dispute shall be made by a vote of the majority of the voting members of the Work Group. No Work Group member shall vote on a dispute of his or her company. If a Work Group member is recused from voting on the dispute of his or her company and a tie vote occurs, the Chairperson of the Allocation Subcommittee shall cast the tie -breaking vote. If the Chairperson of the Allocation Subcommittee is recused and a tie vote occurs, then the Chairperson of the Executive Committee shall cast the tie - breaking vote. The Chairperson of the Work Group shall issue a written determination of a dispute within twenty-one (21) days of the meeting at which the Work Group addressed the dispute. 6.7 Legal Issues. The Chairperson of the Work Group may refer legal issues to the Legal Subcommittee, if one exists, for an advisory legal opinion, provided, however, that the advisory legal opinions are not legally binding on the PRP Committee or any Member and are not admissible in any judicial or administrative proceedings. 6.8 Procedures for Review by the PRP Committee. Any Member may seek a review of the determination of the Work Group by the PRP Committee in accordance with the following procedures: (a) Notice of Review. Within ten (10) days after receiving the Work Group's determination, any Member may notify, in writing, the Chairpersons of the Work Group, the Allocation -10- Subcommittee and the Executive Committee that it desires to present its dispute to the PRP Committee. The Chairperson of the Executive Committee shall schedule the Member's presentation for the next scheduled PRP Committee meeting. (b) Presentation of Dispute. The Member may present its dispute orally and/or in writing but shall not present any evidence not previously considered by the Work Group. (c) Final Determination. Notwithstanding Section 3.6 of this Agreement, a final, binding determination of the dispute shall be made by a vote of two-thirds of the Members of the PRP Committee, voting either in person, by telephone linkage or by proxy; provided, however, if a two-thirds vote is not achieved, the determination of the Work Group shall be deemed final. The vote of the Member seeking review of the Work Group's decision shall not be cast or counted in determining the outcome of the vote. No final determination of a dispute shall be admissible against a Member in any judicial or administrative proceeding. 6.9 Allocation Adjustment. Upon a Work Group's determination which was not presented to the PRP Committee for review, or upon a final determination of a dispute by the PRP Committee, the Allocation Subcommittee shall adjust the Member's allocation, if necessary, within fourteen (14) days of the date of the final determination. All future PRP Committee assessments for that Member shall be based on the Work Group's determination or the PRP Committee's final determination, whichever applies. A disputing Member's assessments on disputed volumes shall not be due and payable by the Member during the pendency of the dispute resolution procedures. A Member's revised assessment based on the applicable allocation determination shall be due and payable by the Member within thirty (30) days of the date of the allocation adjustment by the Allocation Subcommittee, subject to the provisions of Section 9.1 below. 6.10 Confidential Information. Any and all information submitted to the Work Group or the PRP Committee in support of a Member's dispute shall constitute confidential shared information and shall be subject to the confidentiality provisions set forth in Section 12.3. 6.11 Coordination. The Chairperson of the Work Group shall maintain close communication and coordination with the Allocation Subcommittee and its Chairperson so as to promote the smooth functioning of both the Work Group and the Allocation Subcommittee. -11- 7. Members' Obligation to Submit Documentation. . If and when requested by the Executive Committee, each Member shall review all information and documents in the possession, custody or control of or reasonably obtainable by such Member that in any way relates to any shipment of its material to the Site, and submit to the Allocation Subcommittee or its designee a document setting forth the amount and a description of each shipment by date in a form to be approved by the Executive Committee, or such non -privileged records as may be requested by the Executive Committee to support the information reported in the document. Submission of a Member's CERCLA § 104(e) response is sufficient to satisfy the requirements of this paragraph, unless the Member has other relevant information or documents not included in that Member's CERCLA § 104(e) response. The document and supporting records shall be submitted to facilitate settlement among the Members and as confidential shared information shall not constitute, be interpreted, construed or used as evidence of any admission of liability, law or fact, a waiver of any right, privilege or defense, nor an estoppel against any submitting Member. Failure to submit the document and supporting records may be grounds for removal of such Member from the PRP Committee and termination of this Agreement as to such Member. The scope of such information shall be no greater than that required by Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9604(e). Shared Costs. 8.1 Payments. Shared Costs (as defined in Section 2.1(f)) shall be assessed by the PRP Committee. The PRP Committee shall approve the amount of each assessment at a properly noticed PRP Committee meeting. All assessments shall be due and payable within thirty (30) days from the date of the written notice of assessment. If Members responsible for twenty percent (20%) or more of the Shared Costs assessed withdraw, however, the entire assessment shall be deemed null and void. Assessments occurring after a change in allocation shall cause each Member to pay the proportionate amount of Shared Costs under the new allocation plan, after credit for the amount paid under previous assessments. Current Members in good standing that have overpaid may opt to credit the overpayment toward future assessments or to be reimbursed for the amount overpaid. 8.2 Initial Payment. Each Member of the PRP Committee shall make an initial contribution of $2,000 payable to the Mountaineer Refinery PRP Committee Account at the time it executes this Agreement. This initial payment shall be nonrefundable and shall not be a credit against future assessments. 8.3 Accounting for Funds. The Executive Committee shall keep an accounting of all funds received by or on behalf of -12- the PRP Committee and shall provide to the Members from time to time informal accountings of monies received, spent and obligated and a final accounting upon the termination of the Agreement. Accounting records will be available and open for Members' review upon reasonable request. 8.4 Purpose of Funds. All monies provided by Members pursuant to this Agreement shall be used solely for the purposes of this Agreement and shall not be considered as payment for any fines, penalties or monetary sanction, unless otherwise agreed to by the Members. 8.5 Interim Payments. All payments of interim assessments, excluding the Initial Payment pursuant to Section 8.2 above, shall be credited against the final assessment. In any final allocation, each Member shall be given credit for all sums previously paid to the PRP Committee. 9. Withdrawal and Removal. 9.1 Withdrawal. Any Member may withdraw from all participation in this Agreement upon written notice of withdrawal to the Executive Committee or its designee, as of the date the notice of withdrawal is postmarked, except that such Member shall remain liable for its share of all Shared Costs assessed pursuant to this Agreement more than thirty (30) days prior to the date of withdrawal. Any Member that withdraws from this Agreement shall not be responsible for any Shared Costs assessed within thirty (30) days prior to the Member's withdrawal, including a revised assessment of Shared Costs resulting from an Allocation Adjustment pursuant to Section 6.9 above. The withdrawing Member shall be subject to the terms and conditions of this Agreement applicable to withdrawing or removed members. Any Member entering into any settlement with the United States or the State of Wyoming shall be deemed to have withdrawn from the PRP Committee effective upon the date of settlement but shall remain liable for its share of all Shared Costs assessed by the PRP Committee prior to the thirty (30) day period immediately preceding the date of withdrawal. 9.2 Removal of a Member. (a) If any Member's interests or actions are regarded as contrary to the interests of the other Members, such Member may be removed from the PRP Committee by a vote of two- thirds of the Voting Power of the PRP Committee present in person or by proxy at a PRP Committee meeting called for the purpose of considering such removal. In the event any Member fails to pay any portion of any assessed financial contribution pursuant to this Agreement within forty-five (45) days following receipt of notice of such assessment, that Member shall be considered in default and may be removed from the PRP Committee by a vote of two-thirds of the Voting Power present in person or by proxy at a PRP Committee meeting called for the purpose of considering such -13- removal. The Executive Committee may extend the default deadline to provide sufficient opportunity to resolve any disputes over any such Member's assessment. Any Member that is removed shall have the same liability as a Member that withdraws, as defined in Section 9.1. (b) Any Member that has elected to participate on the Executive Committee or a subcommittee may be removed from the Executive Committee or subcommittee by a two-thirds (2/3) vote of the members of the Executive Committee or applicable subcommittee or a majority vote of the PRP Committee based on the Member's failure or inability to participate actively and assist in accomplishing the functions of the Executive Committee or subcommittee. 10. Waiver of Conflict of Interest. 10.1 In the event the PRP Committee engages common counsel, each Member agrees that: (a) it will not claim or assert that, based solely on said counsel's past or present representation of a Member, said counsel has a conflict of interest in performing legal services authorized by the PRP Committee and arising out of the Site, unless the Member notifies the PRP Committee of the claimed conflict within twenty (20) days of receiving notice of intent to hire said counsel; (b) it will not claim or assert that, based solely on said counsel's representation of the PRP Committee under the terms of this Agreement, said counsel has a conflict of interest in connection with any representation of any other person or entity in a matter pending as of the date of receiving notice of intent to hire said counsel, unless the Member notifies the PRP Committee of the claimed conflict within twenty (20) days of receiving said notice; (c) it will not claim or assert that, based solely on said counsel's representation of the PRP Committee under the terms of this Agreement, said counsel has a conflict of interest in any future representation of any person or entity unless the subject matter relating to said representation arises out of or is connected to the Site or involves or could involve any facts or information obtained from the Member during the term of this Agreement; (d) in the event that any conflict develops in the performance of work authorized by the PRP Committee by common counsel and the performance of work authorized by a Member that has retained that counsel, the Member consents to common counsel's continued performance of the work authorized by the PRP Committee; and 3[C (e) if a Member withdraws or is removed from this Agreement or its representation by common counsel is in any way terminated, it will raise no objection to the continued representation by common counsel of the PRP Committee and the continued performance of legal services arising out of the Site. 10.2 Should the United States or the State of Wyoming discuss with, propose, or offer a ce minimis settlement to any Members potentially eligible for such a settlement, no Member potentially eligible for a dg minimis settlement will claim any conflict of interest in, or object to, the continued provision of any technical assistance by any technical consultant retained by the PRP Committee to any Member potentially ineligible for such a de minimis settlement. 10.3 If any Member withdraws or is removed, that Member shall not claim any conflict of interest in, or object to, the continued provision of technical assistance by any technical consultant retained by the PRP Committee. 11. New Members. Any party that becomes a Member by execution of this Agreement subsequent to June 15, 1992 shall be deemed a Member ab initio and shall be assessed and pay all sums that such Member would have been obligated to pay as a Member ab initio, except that the PRP Committee may impose different terms and conditions upon any party seeking to enter into this Agreement after its effective date. 12. Confidentiality and Use of Information. 12.1 Shared Information. From time to time, the Members may, but need not, elect to disclose or transmit to each other, directly or through counsel, such information as each Member, common counsel or common technical consultant deems appropriate for the sole and limited purpose of asserting any common claims or defenses relating to the Site and coordinating such other activities that are necessary and proper to carry out the purposes of this Agreement. Shared information may be disclosed to or transferred among the Members orally or in writing or by any other appropriate means of communication. The Members intend that no claim of work -product or other privilege be waived by reason of participating or cooperating in the common response to, or defense of, any claims arising out of the Site. 12.2 Preservation of Privilege. Information disclosed by the Members to common counsel may be disclosed to any other Member, and each Member hereby expressly consents to treat such disclosure to it as being for the sole purpose of asserting any common claims or defenses arising out of the Site. Such disclosure shall not be deemed a waiver of the attorney-client, work -product or any other privilege. -15- 12.3 Confidentiality of Shared Information. (a) Each Member agrees that all shared information received from any other Member or its counsel, common counsel or common technical consultant pursuant to this Agreement shall be held in strict confidence by the receiving Member and by all persons to whom such confidential information is revealed by the receiving Member, pursuant to this Agreement, and that such information shall be used only in connection with asserting any common claims or defenses in connection with the Site and conducting such other activities that are necessary and proper to carry out the purposes of this Agreement; (b) Shared information that is exchanged in written or in document form and is intended to be kept confidential may, but need not, be marked "Confidential" or with a similar legend. If such information becomes the subject of an administrative or judicial order requiring disclosure of such information by a Member, where the information will be unprotected by confidentiality obligations, the Member may satisfy its confidentiality obligations hereunder by notifying the Member that generated the information and by giving such Member an opportunity to protect the confidentiality of the information or, if the information was generated by common counsel or common technical consultant, by giving notice to common counsel; (c) Each Member shall take all necessary and appropriate measures to ensure that any person who is granted access to any shared information or who participates in work on common projects or who otherwise assists any counsel or technical consultant in connection with this Agreement, is familiar with the terms of this Agreement and complies with the terms as they relate to the duties of the person; (d) The Members intend by this Section to protect from disclosure all information and documents shared among any Members or between any Member, common counsel and/or common technical consultant to the greatest extent permitted by law, regardless of whether the sharing occurred before execution of this Agreement and regardless of whether the writing or document is marked "Confidential"; (e) The confidentiality obligations of the Members under this Section shall remain in full force and effect, without regard to whether a Member withdraws or is removed, whether this Agreement is terminated or whether any action arising out of the Site is terminated by final judgment or settlement. The provisions of this Section shall not apply to information that is now or hereafter becomes public knowledge without violation of this Agreement, or that is sought and obtained from a Member pursuant to applicable discovery procedures and not otherwise protected from disclosure; and -16- M In the event a Member withdraws from this Agreement or is removed, any documents or other physical materials containing confidential information provided by such Member to common counsel, to the other Members, or to common technical consultant, shall be promptly returned to such withdrawing or removed Member, together with all copies thereof, and any document or physical materials provided by common counsel or common technical consultant, or the other Members to the withdrawing or removed Member shall be promptly returned to the Executive Committee, together with all copies thereof. The withdrawing or removed Member and the remaining Members shall remain obligated to preserve the confidentiality of all confidential information received or disclosed pursuant to this Agreement. 13. Denial of Liability. This Agreement shall not constitute, be interpreted, construed or used as evidence of any admission of liability, law or fact, a waiver of any right or defense, nor an estoppel against any Member by Members as among themselves or by any other person not a Member. Nothing in this Section, however, is intended or should be construed to limit, bar or otherwise impede the enforcement of any term or condition of the Agreement against any Member to this Agreement. 14. Insurance. The Members do not intend hereby to make any agreement that will prejudice any Member with respect to its insurers and, by entering into this Agreement, anticipate that the actions taken pursuant to this Agreement will benefit such insurers. If any insurer makes any claims that any aspect of this Agreement provides a basis for rejection or limitation of coverage of a Member, the PRP Committee will attempt, consistent with the objectives of this Agreement and the desires of the Member, to return any Member subject to such claim to a position that is satisfactory to such insurers. 15. Successors and Assigns. This Agreement shall be binding upon the successors and assigns of the Members. No assignment or delegation of the obligation to make any payment or reimbursement hereunder will release the assigning Member without the prior written consent of the Executive Committee. 16. Allocation in the Event of Default. The unpaid balance of any defaulting Member's share may be assessed by the PRP Committee against the other Members hereto (without waiving any rights such Members may have against the defaulting Member or its successors or assigns) in the same proportion as the other Members would have been obligated to pay -17- if the defaulting Member had not been a signatory of this Agreement. 17. Relationship of Members. 17.1 No Member, or representative or counsel for any Member, has acted as counsel for any other Member with respect to such Member entering into this Agreement, except as expressly engaged by such Member with respect to this Agreement, and each Member represents that it has sought and obtained any appropriate legal advice it deems necessary prior to entering into this Agreement. 17.2 No Member or its representative serving on the Executive Committee or any subcommittee shall act or be deemed to act as legal counsel or a representative of any other Member, unless expressly retained by such Member for such purpose and, except for such express retention, no attorney-client relationship is intended to be created between representatives on the Executive Committee or any subcommittee and the Members. 17.3 Nothing herein shall be deemed to create a partnership or joint venture and/or principal and agent relationship between or among the Members. 18. Indemnification. Each Member agrees to indemnify, defend and hold harmless any Member and its representative(s) from and against any claim, demand, liability, cost, expense, legal fee, penalty, loss or judgment (collectively "Liability") that in any way relates to the good -faith performance of any duties under this Agreement by any Member or its representative(s) on behalf of the PRP Committee, the Executive Committee or any subcommittee under this Agreement, including, but not limited to, any liability arising from any contract or agreement signed by the Member or its representative(s) at the request of the Executive Committee or the PRP Committee. Except for the payment of legal fees as incurred, this indemnification shall not apply to any liability arising from a criminal proceeding where the Member or its representative(s) had reasonable cause to believe that the conduct in question was unlawful. Any costs arising pursuant to this Section shall be allocated as a Shared Cost in accordance with Section 4.3 hereof. The terms of this Section shall survive the termination of the Agreement and the withdrawal or removal of any Member. 19. Effective Date. Method of Execution. The effective date of this Agreement shall be the date below. This Agreement shall be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Agreement. -18- 20. Amendments. This Agreement may be amended only by a vote of at least two-thirds (2/3) of the Members present in person or by proxy at a PRP Committee meeting called for the purpose of considering such amendment. Such amendment shall become effective thirty (30) days after written notice of such amendment is mailed to all Members. Any Member who does not vote affirmatively on such amendment shall have fifteen (15) days' written notice to formally consent to the terms of the amendment. Any such party who does not consent to the amendment shall not be bound by the amendment and shall be automatically removed as a Member at the expiration of the fifteen (15) day period and this Agreement terminates as to that party. 21. Separability. If any provision of this Agreement is deemed invalid or unenforceable, the balance of this Agreement shall remain in full force and effect. 22. Choice of Law. This Agreement shall be interpreted under the laws of the State of Wyoming. 23. Nonwaiver. Nothing in this Agreement shall be construed to waive any rights, claims or privileges that any Member shall have against any other Member or any other person or entity. 24. Entire Agreement. This Agreement constitutes the entire understanding of the Members with respect to its subject matter. 25. Termination. This Agreement may be terminated by a vote of the majority of the Voting Power of the Members present in person or by proxy at a PRP Committee meeting called for the purpose of considering such termination. 26. Notice. All notices, bills, invoices, reports and other communications with a Member shall be sent to the representative designated by the Member on said Member's signature page of this Agreement. Each Member shall have the right to change its representative upon ten (10) days written notice to the Chairperson of the Executive Committee. -19- IN WITNESS WHEREOF, the Members hereto, which may be by and through their appointed counsel, enter into this Agreement. Each person signing this Agreement represents and warrants that he or she has been duly authorized to enter into this Agreement by the company(ies) or entity(ies) on whose behalf it is indicated that the person is signing. Dated: June _, 1992. MEMBER• Designated Representative for Receipt of Notice and Invoices Name: Address: Phone: Fax Machine Number: By: (Name and Title) -20- EXHIBIT 1 Mountaineer Refinery Site PRP Committee Members ' These volumes are based on EPA's "Listing of All Waste Shipments Ranked by Volume," the PRP Committee Member's § 104(e) response or site records. " This figure represents Northwest Pipeline's revised undisputed volume. "' As defined in Section 3.6(a) of the Group Participation Agreement. F:\WTA1WP1%"UOWM610 FA11. IM 147p Volume Percentage and Volume Voting PRP Committee Member allons ' Power*** ACD, Inc. 6,700 2.56 Aeromil Engineering 3,045 1.16 Chevron Chemical Company 4,675 1.78 FMC Corporation 3,700 1.41 GSF Energy, Inc. 3,750 1.43 Gulfstream Aerospace Corp. 4,975 1.90 Gulton Servonics 2,540 •97 Hayden,lnc. 2,525 .96 Long Beach Container 4,200 1.60 Nelco Products, Inc. 2,850 1.09 Northwest Pipeline Corp. 27,086" 10.33 Pacific Scientific Company 4,945 1.88 Paul -Munroe Engineering 4,650 1.77 Rosan Products 7,750 2.96 Southern California Rapid 3.32 Transit District 8,700 Sundor Brands 1,875 •72 Taylor -Dunn Manufacturing Co. 3,190 1.22 Textron Inc. Cherry Division 124,480 47.47 Cessna Aircraft 875 .33 Varco International 2,550 •97 The Walt Disney Company 37.160 14.17 Total 262,221 100.00 ' These volumes are based on EPA's "Listing of All Waste Shipments Ranked by Volume," the PRP Committee Member's § 104(e) response or site records. " This figure represents Northwest Pipeline's revised undisputed volume. "' As defined in Section 3.6(a) of the Group Participation Agreement. F:\WTA1WP1%"UOWM610 FA11. IM 147p