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HomeMy WebLinkAbout2007-03-20; City Council; 18941; Reporting settlement of Omega Chemical CleanupCITY OF CARLSBAD - AGENDA BILL AB# 18,941 MTG. 03/20/07 DEPT. CA REPORTING OUT SETTLEMENT OF THE OMEGA CHEMICAL SUPERFUND OITC f*l C A Ml ID Akin Al ITUODI^IAIOOf I c ULcANUr ANU AU 1 nUHl£.IN(j PAYMENT DEPT. HEAD CITY ATTY. ^^ CITYMGR. ~73£> RECOMMENDED ACTION: Adopt resolution No. 2007-063 approving payment of the City's share of cleanup costs for the Omega Chemical Superfund Site pursuant to the Settlement Agreement. ITEM EXPLANATION: In August 2002 the City of Carlsbad was informed by the United States Environmental Protection Agency that it had been identified as a major contributor of 10.6412 tons of hazardous materials at the Omega Chemical Superfund Site, an authorized depository for disposal of hazardous waste. Omega Chemical, the former owner of the site, had negligently maintained the site resulting in hazardous material leaking into and contaminating of the groundwater at the site and in surrounding areas. Under the Environmental Protection Act, all known contributors to a contaminated site are strictly liable for their proportionate share of the cleanup costs. After successful appeal by the City Attorney of the volume attributed to the City, the City was re- identified as a de minimus contributor of only 5.1362 ton. The City then participated in a group negotiation led by Attorney Albert Cohen to fairly apportion estimated cleanup costs for the site. The Council met in closed session on September 14, 2004 and June 14, 2005 and agreed to settle as a de minimus contributor. The City's share was identified as $33,642.11. This multi-party settlement was approved by the US District Court on March 9, 2007 and the City's contribution is due by April 8, 2007. This item satisfies the Brown Act requirement to report the approval of the Agreement in a prior closed session. FISCAL IMPACT: The City's settlement payment of $33,642.11 as satisfaction of the City's portion of the site cleanup costs and will be paid from the appropriate fund. ENVIRONMENTAL IMPACT: Settlement of a liability is not a "project" within the meaning of CEQA and therefore environmental review is not required. EXHIBITS: 1. Resolution No. 2007-063 with Exhibit A - Settlement Agreement. DEPARTMENT CONTACT: Jane Mobaldi 760-434-2891 FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED El DENIED D CONTINUED D WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER - SEE MINUTES nna n 1 RESOLUTION NO. 2007-063 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING PAYMENT OF 3 OMEGA CHEMICAL SUPERFUND SITE CLEANUP COSTS 4 PURSUANT TO THE SETTLEMENT AGREEMENT 5 WHEREAS, on August 27, 2002 the City of Carlsbad was informed by the United 6 States Environmental Protection Agency, that it has been identified as a contributor of 7 hazardous substances to the contaminated Omega Chemical Superfund Site: and8 WHEREAS, the City was determined to be a de minimus contributor of 5.1362 10 tons. 11 WHEREAS, at the closed sessions of September 14, 2004 and June 14, 2005 12 Council agreed to settle the City's liability in a multi-party settlement agreement 13 attached hereto as Exhibit "A", which was approved by the US District Court on March 14 9, 2007: and WHEREAS, pursuant to that settlement agreement the City is now obligated to 16 pay its fair share of the site cleanup costs in the amount of $33,642.11. 17 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 18 Carlsbad, California, as follows: 20 1 - That the above recitations are true and correct. 21 2. That the City Council authorizes payment to Omega Chemical PRP 22 Group, LLC in the amount of $33,642.11, as provided for in Article VII, section 7.04 of 23 the Settlement Agreement. 24 3. That the City Council authorizes the Finance Director to appropriate the 25 payment from the Solid Waste Fund's contingency and make the payment no later than 26 April 8, 2007.27 28 « 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 20th day of March, 2007, by the following vote: AYES: Council Members Lewis, Hall, Packard. NOES: None. ABSENT: Mayor Pro Tem Kulchin. Mayor ATTEST: LORRAINE M. WOOD, city cierk RightFAX 3/12/2007 12:51 PAGE 002/003 Fax Server * 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Priority -*?~'Send <**i Enter — — Closed — JS-2/JS-3 Scan Only. ORIGINAL .. •v CmK.U.sS,nTrn,m |l MAR-9200? | •^ / / {^1 OFPIITT ***'j-.y_ _ _.... Tttnttefr &tate* Btetrict Court Central Btetrict of California Western BiW*ion OMEGA CHEMICAL PRP GROUP LLC,etal., Plaintiffs, V. AEROSCIENTIFIC CORP., et a/., Defendants. CV 04-01340 TJH (JWJx) The Court has considered Plaintiffs motion for good faith settlement as to the 55 settling Defendants, together with the moving papers. It I* Orfcttefr that the motion be, and hereby is, 6tautt&. --— -^"rrfrrWcTr" It is f ttfthi t vttiittilrtHat thelsett ements were entered into in good faith, I MWW^ ^ I .^f \— f9v TOU5. d^ L/ Order - Page 1 RightFAX 3/12/2007 12:51 PAGE 003/003 Fax Server and that all claims for contribution against the 55 settling Defendants be, and hereby are, Satttd except to the extent that such claims are preserved by the settlement agreement. It ig futtftet Orttteft that the Court shall retain jurisdiction to enforce the terms of the settlement agreement. Date: March 9, 2007 Cttt0 I. 3&ait&, Jt. 1 2 3 4 5 6 7 8 9 10 11 Senior United &tatt* 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Order - Page 2 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION TABLE OF CONTENTS Page Section 1.01 Agreement 1 Section 1.02 Consideration 1 Section 2.01 "Affiliated Parties" 1 Section 2.02 "Agreement" 2 Section 2.03 "Settling Party" 3 Section 2.04 "Claims or Claims and Liabilities" 2 Section 2.05 "Consent Decree or Other Agreements" 2 Section 2.06 "DTSC" 2 Section 2.07 "Effective Date" 2 Section 2.08 "EPA" 2 Section 2.09 "Excluded Matters" 2 Section 2.10 "Governments" 2 Section 2.11 "OPOG" 2 Section 2.12 "OPOG Members" 3 Section 2.13 "Omega Site Settlement Escrow" 3 Section 2.14 "Party" 3 Section 2.15 "PRPs" 3 Section 2.16 "Regional Response Work" 3 Section 2.17 "Settlement Amount" 3 Section 2.18 "Site" and "Omega Site" 3 Section 2.19 "State" 3 Section 2.20 "Total Collective Costs" 3 Section 2.21 "United States" 4 Section 3.01 Funding and Work Arrangements 4 Section 3.02 Consent Decree or Other Agreements 4 Section 3.03 Settling Party's Representations Regarding Disclosures 5 Section 4.01 Judicial Approval of Settlement 5 Section 5.01 Releases for Settled Matters 6 Section 5.02 Excluded Matters 6 Section 5.03 Right of Additional Recovery 7 OMEGA CHEMICAL SITE TABLE OF CONTENTS I PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION TABLE OF CONTENTS Section 5.04 Civil Code Section 1542 7 Section 6.01 Less Than Full Compensation 8 Section 6.02 Claims for Settled Matters 8 Section 6.03 No Prior Assignment 8 Section 6.04 Assignor's Cooperation 8 Section 7.01 Effect of Agreement; Separate Agreements 9 Section 7.02 Survival of Agreement 9 Section 7.03 No Admission of Liability 9 Section 7.04 Notice 9 Section 7.05 Remedies 10 Section 7.06 Enforcement of Agreement 10 Section 7.07 Construction of Agreement 10 Section 7.08 Independent Counsel 10 Section 7.09 Deadlines 11 Section 7.10 Sole Agreement 11 Section 7.11 Amendment to Agreement 11 Section 7.12 Corporate Authority 11 Section 7.13 Binding 11 EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F - SETTLING PARTIES WITH RE-OPENER AND SETTLEMENT AMOUNTS SETTLING PARTIES WITHOUT RE-OPENER AND SETTLEMENT AMOUNTS CERTIFICATION BY SETTLING PARTIES - OPOG MEMBERS MAKING OPOG MEMBERS ASSURANCE OPOG MEMBERS ASSURANCE AUTHORITY TO EXECUTE SETTLEMENT AGREEMENT AND MEMBERS ASSURANCE EXHIBIT G - AMENDMENT TO OMEGA PRP GROUP PARTICIPATION AGREEMENT OMEGA CHEMICAL SITE TABLE OF CONTENTS 2 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT ARTICLE I. INTRODUCTION Section 1.01 Agreement. This Omega Chemical Site Settlement Agreement, including any Exhibits hereto, ("Agreement") is made and entered into as of the Effective Date by and between the Omega Chemical PRP Organized Group, also known as the Omega Chemical PRP Group, ("OPOG"); and the Omega Chemical PRP Group LLC ("Omega LLC") (collectively, the "Group"), on the one hand, and the entity named on the execution page and on Exhibit A or B of this Agreement ("Settling Party"), on the other hand, (collectively, the "Settling Parties"). Section 1.02 Consideration. Whereas, EPA's stated in its September 7, 2004 letter to the Omega De Minimis Parties that if parties are successful in negotiating a settlement with OPOG, "then EPA will not pursue [them] further" and in consideration of the covenants, promises, and releases set forth below, the Settlement Amount to be paid by the Settling Party as set forth in Exhibit A or B, and without the admission or adjudication of any liability or any issue of fact or law, except as specified herein, the Parties hereby agree as follows: ARTICLE II. DEFINITIONS Unless otherwise expressly provided herein, terms used in this Agreement that are defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended, 42 U.S.C. Section 9601 et seq. ("CERCLA"), or in the National Contingency Plan ("NCP") promulgated pursuant to CERCLA, shall have the meanings assigned to them in CERCLA or the NCP. Whenever the capitalized terms listed below are used in this Agreement, the following definitions shall apply: Section 2.01 "Affiliated Parties" shall mean: (a) As to each of the entities composing the Group: its shareholders, officers, directors, members, partners, parent corporations, subsidiaries, divisions, related and affiliated entities or persons, employees, agents, attorneys, trustees, beneficiaries, past owners and operators, predecessors, successors and assigns. OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT 1 q PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION (b) As to a Settling Party: its shareholders, officers, directors, members, partners, parent corporations, subsidiaries, divisions, related and affiliated entities or persons, employees, agents, attorneys, trustees, beneficiaries, past owners and operators, predecessors, successors and assigns. Section 2.02 "Agreement" shall mean this Omega Chemical Site Settlement Agreement including all Exhibits thereto. Section 2.03 "Claims or Claims and Liabilities" shall mean any and all claims (including without limitation all contribution claims in litigation or arbitration), losses, demands, causes of action, obligations, direct or consequential damages, injuries, liens, costs (including without limitation reimbursement of government response costs and legal costs), civil fines, penalties, expenses, fees and liabilities of any nature whatsoever (including without limitation attorneys' fees), whether contractual, statutory, equitable or under common law, whether known or unknown, whether accrued or unaccrued, that are based on or arise from the Site Section 2.04 "Consent Decree or Other Agreements" shall mean (1) the Partial Consent Decree entered in United States of America v. Abex Aerospace Division, et al., U.S.D.C. (Central District—CA, Western Div.) CV-00-012471, and (2) any Government (a) orders, (b) directives or (c) mandates, or (3) other agreements which may be entered into by the Group or any of its members with some or all of the Governments and/or other PRPs, in connection with the Site. The term shall also include any ancillary agreements (such as license access agreements, articles of incorporation, statements of work, Phase la Response Work design plan, Phase la Response Work action plan, etc.) to the extent necessary to implement such work, whether or not incorporated in a Consent Decree or Other Agreements. Section 2.05 "DTSC" shall mean the California Department of Toxic Substance Control. Section 2.06 "Effective Date" as to each Settling Party shall mean the date funds from that Party are received by the Group pursuant to Section 3.01(b), Section 2.07 "EPA" shall mean the United States Environmental Protection Agency and the United States when acting on behalf of EPA. Section 2.08 "Excluded Matters" is defined in Section 5.02. Section 2.09 "Governments" shall mean the United States, the State of California including, but not limited to DTSC and the Regional Water Quality Control Board ("RWQCB") and any cities, municipalities or local agencies. Section 2.10 "OPOG" shall mean the Omega Chemical PRP Organized Group, also known as the Omega Chemical PRP Group formed on or about December 21, 1994 by the Omega Chemical Site PRP Group Participation Agreement, as amended from time to time; OMEGA CHEMfCAL SITE SETTLEMENT AGREEMENT 2 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION Section 2.11 "Group" shall mean OPOG and the Omega Chemical PRP Group LLC. "Omega Chemical PRP Group LLC" shall mean Omega Chemical PRP Group LLC, Section 2.12 "OPOG Members" shall mean the members of OPOG that are listed on Exhibit D. Section 2.13 "Omega Site Settlement Escrow" shall mean an escrow established by the Omega LLC. Section 2.14 "Party" shall mean a Settling Party or the Group; "Parties" shall mean the Settling Parties and the Group, The terms "Party" or "Parties" do not include other persons, companies, PRPs or Group members. Section 2.15 "PRPs" shall mean potentially responsible parties with respect to the Site that are not Settling Parties as defined herein. Section 2.16 "Regional Response Work" shall mean work that the Governments require the Parties, or any one of them to perform, or which they perform at the request or demand of the Governments or any one of them, regarding regional groundwater contamination alleged to be attributed to the Site. Section 2.17 "Settlement Amount" shall mean the amount of money calculated in accordance with the terms of this Agreement and set forth in Exhibit A or B, paid by the Settling Party in consideration for the covenants, promises, and releases herein by the Group. Section 2.18 "Settling Party" shall mean the entity or person that has executed this Agreement other than the Group. Section 2.19 "Site" and "Omega Site" shall mean the Omega Chemical Corporation Superfund Site listed on the National Priorities List on January 19, 1999, 64 Fed. Reg. 2945. Section 2.20 "State" shall mean the State of California, its departments, agencies and instrumentalities, including, but not limited to, DTSC and the RWQCB. Section 2.21 "Total Collective Costs" shall mean the total Site response costs that have been or are in the future expended by the Group and the Settling Parties. Total Collective Costs shall include costs attributable to (a) OPOG members, (b) PRPs OPOG members have, as of the Effective Date, assumed responsibility for, (c) PRPs the Group has or does otherwise settle with, (d) the Settling Parties herein, and (e) PRPs from whom the Group recovers through litigation to judgment. Total Collective Costs shall not include costs incurred by third parties, including the Omega Small Volume Organized Group (OSVOG) or expenditures from funds obtained by EPA from its settlements with PRPs, including its OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT 3 11 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION settlements with de minimis parties nor shall it include any costs incurred by PRPs in executing EPA Unilateral Administrative Order 2004-04. Section 2.22 "United States" shall mean the United States of America, its departments, agencies and instrumentalities. ARTICLE III. OBLIGATIONS OF THE PARTIES Section 3.01 Funding and Work Arrangements. (a) Pursuant to the terms and conditions set forth below, and after the Effective Date, the Group shall assume each Settling Party's responsibilities for the Site, including, but not limited to, all response costs associated with the Site, except as to (1) Excluded Matters set forth in Section 5.02, and (2) ministerial tasks imposed by a Consent Decree or Other Agreements and/or any administrative order issued by a Government that by their nature must or reasonably should be performed individually by that Party, such as the retention of that Party's documents or notification to the Governments of a change in that Party's corporate status. This assumption of responsibilities shall not extend to any member of OPOG except as to OPOG Members set forth on Exhibit D under the terms and conditions set forth in Exhibit E. These continuing obligations and/or required activities shall not obligate a Settling Party to pay the Group or be legally responsible for any amount in addition to that set forth in Exhibit A or B. (b) Pursuant to the terms and conditions set forth below, each Settling Party shall pay the total amount set forth on Exhibit A or B for that Settling Party. (1) Settling Parties listed on Exhibit A agree to pay in settlement of their liabilities $5,550 per ton of wastes listed in Exhibit A. Further, each Settling Party listed on Exhibit A agrees to pay its percentage share, as stated on Exhibit A, of the amount by which Total Collective Costs exceed $70 million, up to the sum of $93 million in Total Collective Costs. Each Settling Party's percentage share shall be equal to the volume listed for that Settling Party in Exhibit A multiplied by 5,550 divided by 70 million. Each Settling Party listed on Exhibit A agrees not to contest this obligation except as to the accounting of Total Collective Costs. (2) Settling Parties listed on Exhibit B agree to pay in settlement of their liabilities $6,550 per ton of wastes listed in Exhibit B. However, Settling Parties listed in Exhibit B shall have no further payment obligations under this Agreement. (c) Payments shall be made into an account designated by the Group by wire transfer or other good and available funds. Section 3.02 Consent Decree or Other Agreements. (a) Each Settling Party shall cooperate with the Group to the extent reasonable and practical in an attempt to re-open, as appropriate, a Consent Decree or Other Agreements with any Government (including but not limited to the Partial Consent Decree entered in United States OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT 4 id- PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION of America v. Abex Aerospace Division, et al., U.S.D.C. (Central District—CA, Western Div.) CV-00-012471, governing implementation of the Phase la Response Work, and if necessary Regional Response Work, and the reimbursement of Government Response Costs) for the purpose of adding the Settling Party to such Consent Decree or other Agreements for the limited purpose of obtaining contribution protection for such Settling Party. (b) In the event that a Consent Decree or Other Agreements have been or are entered into with any Government, the Group agrees to use good faith efforts (1) to obtain releases from any Government's Claims against each Party, and (2) to obtain contribution protection for each Party to the fullest extent authorized in Sections 113(f)(2) and 122(g)(5) of CERCLA, 42 U.S.C. Section 9613(f)(2) and Section 9622(g)(5), or other provisions of State or federal law, but subject to that Party's continuing and reasonable compliance with this Agreement. Any releases or contribution protection obtained by the Group pursuant to the previous sentence shall be at least as broad as any releases or contribution protection which the Group obtains for itself relating the Omega Site. Each Settling Party shall reasonably cooperate with the Group and sign the Consent Decree or Other Agreements as necessary to realize the objectives described in this Section. Nothing in this paragraph shall require any Settling Party to sign any agreement which requires it to undertake any response activities regarding the Site or any joint and several obligations. Section 3.03 Settling Party's Representations Regarding Disclosures. Each Settling Party shall complete in full and execute Exhibit C hereto. The Group has entered into this Agreement in reliance on these representations by each Settling Party in its Exhibit C. If the Group demonstrates that the Settling Party knowingly made false representations in its Exhibit C then the release and covenant not to sue shall not apply to any additional waste identified. ARTICLE IV. ALLOCATION AND JUDICIAL APPROVAL Section 4.01 Judicial Approval of Settlement (a) OPOG and the Omega LLC shall amend their complaint in Omega Chemical PRP Group LLC, and Omega Chemical PRP Group, an unincorporated association, v. Aaron Thomas Company, Inc., a California corporation, et al., (Central District—CA, Western Div.) CV-04-01340, or Omega Chemical PRP Group LLC, a Delaware limited liability company, and Omega Chemical PRP Group, an unincorporated association, v. Advanced Packaging Systems, a California corporation, et al., (Central District—CA, Western Div.) CV-05-00754, or file a separate complaint to add or include each Settling Party not previously named. (b) Each Settling Party who entered a tolling agreement agrees that the agreement is terminated as of 45 days prior to the filing date of the amended or additional complaint adding that party. (c) OPOG and the Omega LLC will move the court for an order and judgment, inter alia, (1) approving this Settlement Agreement, (2) ruling that all claims for contribution or OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT 5 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION indemnification, however denominated, except as preserved herein, against the Settling Parties and Affiliated Parties are barred, and (3) retaining jurisdiction for the purpose of enforcing the order and judgment. Each Settling Party shall cooperate with the Group to the extent reasonable and practical in obtaining such order and judgment. (d) The payments under paragraph 3.01 shall be due within thirty (30) days after the Court issues its order regarding approval of the Settlement Agreement. In the event that the Court does not provide all of the relief described in paragraph 4.01 (c) then each Settling Party may either pay the amount due under this Agreement, in which case it shall be entitled to all of the other benefits of this Agreement, or not pay in which case the Agreement shall not be effective with regard to that Settling Party. ARTICLE V. RELEASES AND COVENANT NOT TO SUE Section 5.01 Releases for Settled Matters. The Parties mutually release and covenant not to sue each other and each of their Affiliated Parties for all Claims and Liabilities that are based upon or arise from the Site provided, however, that (1) the releases and covenants not to sue do not encompass any of the Excluded Matters set forth in Section 5.02 below, and (2) the Group shall have the right to seek additional recovery as set forth in Section 5.03 below. These mutual releases and covenants not to sue shall become effective upon the Effective Date. Section 5.02 Excluded Matters. The following Claims and Liabilities are Excluded Matters that are not subject to the release and covenant not to sue provisions of Section 5.01 above: (a) Claims and Liabilities of a Party against its own Affiliated Party based upon or arising from that Party's liability relating to the Site; (b) Claims and Liabilities of a Party against or between any insurance company, obligor, surety or indemnitor or other person based upon or arising from that Party's (or an Affiliated Party's) claims for insurance, indemnification or other recovery; (c) Claims and Liabilities for natural resource damage pursuant to CERCLA Section 107(0 or any equivalent State law; (d) Claims and Liabilities by any person or entity for death, personal injury or disease, loss of future or past wages or income, loss of consortium, property damage (other than response costs related to the Site) , diminution in value, or economic loss, whether based on negligence, strict liability, abnormally dangerous activity, statute or other law, including but not limited to assault, battery, nuisance, trespass, negligence, strict liability, products liability and infliction of emotional distress and/or fear, OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT 6 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION (e) Claims and Liabilities arising under or with regard to California's Safe Drinking Water and Toxic Enforcement Act of 1986, popularly known as "Proposition 65," California's Unfair Business Practices Act pursuant to Cal. Bus. Code Section 17200, and any rules, regulations, orders or notices promulgated or issued thereunder; (g) Claims and Liabilities based upon or arising from events or occurrences caused by a Settling Party after the Effective Date; (h) Actions to enforce or for breach of this Agreement; (i) Claims and Liabilities based upon or arising from any volume of material knowingly not disclosed in Exhibit C or for acts or omissions of the Settling Party or Affiliated Party(s) other than as the generator of record for that volume of material set forth on Exhibit A or B; and (j) Claims and Liabilities based upon or arising from the Site that meet all of the following conditions: (1) are not related to obligations under the Partial Consent Decree entered in United States of America v. Abex Aerospace Division, et at., U.S.D.C. (Central District—CA, Western Div.) CV-00-012471, (2) are not related to investigation or remediation of soil or soil vapors at the Site, (3) are not related to soil vapors emanating from the Site other than via the groundwater pathway, and (4) are not for Regional Response Work. Section 5.03 Right of Additional Recovery. The Group shall have the right of additional recovery from each Settling Party listed on Exhibit A of its percentage share, as stated on Exhibit A, of the amount by which Total Collective Costs exceed $70 million, not to exceed the Settling Party's share of $93 million. Section 5.04 Civil Code Section 1542. As to the Settled Matters in this Agreement, the Parties specifically and expressly waive any rights and benefits available to them under the provisions of Section 1542 of the California Civil Code, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. The Parties have consulted counsel and fully understand the statutory language and intent of Civil Code Section 1542. The Parties understand that if the facts or law forming the basis for this Agreement are found hereafter to be different from the facts or law now believed by the Parties to the Agreement to be true, they expressly accept the consequences, and assume the risk of such possible difference in facts or law and agree that the Agreement shall remain fully effective nonetheless, and that any different facts or law shall not be grounds for any action contrary to the Agreement, including an action for rescission or restitution unless such fact has been intentionally concealed or fraudulently misrepresented. OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT 7 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION ARTICLE VI. ASSIGNMENTS AND SPECIFICALLY RETAINED CLAIMS Section 6.01 Less Than Full Compensation. The Settlement Amount to be paid by each Settling Party is the full share of Settled Matters attributable to that Settling Party, but is not intended to constitute full compensation for the Group's Claims and Liabilities relating to the Settled Matters, The Group expressly reserves the right to seek full compensation for their Claims and Liabilities relating to the Settled Matters from all persons other than the Settling Parties and their Affiliated Parties that may have responsibility or liability for Settled Matters. Section 6.02 Claims for Settled Matters. Each Settling Party hereby assigns without recourse to the Omega LLC any and all claims and rights to assert Claims and Liabilities for Settled Matters, including cost recovery, contribution, equitable indemnification, unjust enrichment or comparable claims under federal or state law, against all persons that may have responsibility or liability for Settled Matters. The foregoing assignment, however, does not include any claims the Settling Party may have against its own insurance carriers, indemnitors, sureties or obligors, such claims being expressly reserved to the Settling Party. Section 6.03 No Prior Assignment Each Settling Party represents and warrants that neither it nor any of its Affiliated Parties has assigned or transferred or purported to assign or transfer, voluntarily, involuntarily, or by operation of law, any Claim, cause of action, or Settled Matter released pursuant to this Agreement or any part or portion thereof. Each of the Parties agrees to indemnify each other Party and hold it harmless from any claim, demand, damages, debt, obligation, cost, expense, lien, action, or cause of action (including the payment of attorney's fees and costs actually incurred, whether or not litigation is commenced) based upon, in connection with, or arising out of any such assignment or transfer or purported assignment or transfer to any person or entity not a Party to this Agreement. Section 6.04 Assignor's Cooperation. Each Settling Party shall execute, and shall make good faith efforts to secure the execution by appropriate Affiliated Parties of, such further documents as the Group may reasonably request from time to time in order to confirm, effectuate, or enforce the assignments of claims made in this Article VI. Each Settling Party agrees to reasonably cooperate with the Group, and to use good faith efforts to secure the cooperation of its Affiliated Parties, in the Group's conduct of or participation in any private, administrative, or judicial matters or proceedings to the extent they may implicate or affect any claim assigned in this Article VI. OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT g PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION ARTICLE VII. GENERAL PROVISIONS Section 7.01 Effect of Agreement; Separate Agreements. Nothing in this Agreement shall be construed to create any rights in, or grant any cause of action to, any person not a Party to this Agreement. The preceding sentence shall not be construed to waive or nullify any rights that any person not a Party may have under applicable law. Subject to the provisions of Sections 5.01, 5.02 and 5.03, each Party reserves any and all rights, defenses, Claims and Liabilities, demands, and causes of action which it may have with respect to any matter, transaction, or occurrence against any person not a Party or an Affiliated Party. Notwithstanding any provision to the contrary, this Agreement does not modify or vitiate any separate agreement between the Parties which specifically refers to this Agreement and which modifies or is contrary to this Agreement. Section 7.02 Survival of Agreement This Agreement shall survive and remain fully valid and enforceable whether or not persons who are not Parties enter into a Consent Decree or Other Agreements with any Government. Section 7.03 No Admission of Liability. Nothing contained in this Agreement nor the payment of any amount by any Party is or may be construed to be an admission of any wrongdoing or liability; and more specifically, is not an admission or acknowledgment by any Party that a release or threatened release of a hazardous substance has occurred at or from the Site or that an alleged release has resulted in response costs incurred by any person. Section 7.04 Notice. Whenever, under the terms of this Agreement, written notice is required to be given or a document is required to be sent to the Group, it shall be directed to: Omega Chemical PRP Group LLC c/o Keith F. Millhouse Millhouse Law Group 2815 Townsgate Road, Suite 330 Westlake Village, California 91361 and to such additional or substitute recipient as the Group may from time to time designate. Whenever, under the terms of this Agreement, written notice is required to be given, or a document is required to be sent to a Settling Party, it shall be directed to the Settling Party's representative for service as designated on the execution page. OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT 9 n PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION Section 7.05 Remedies. This Agreement may be pleaded as a complete defense to, and may be used as a basis for an injunction against bringing, any Claims and Liabilities released hereunder. In addition, any Settling Party may bring an action for injunctive relief against the Group or any the OPOG Members to enforce the terms of this agreement including, but not limited to, the obligation of those OPOG Members listed on Exhibit D to assume the Settling Party's obligations under 3.01 (a) pursuant to the OPOG Members Assurance, Exhibit E. Section 7.06 Enforcement of Agreement If any Party to this Agreement brings an action to enforce its rights hereunder, the prevailing party shall be entitled to recover: (a) Interest on any monies determined to be owing to it, to be calculated at the rate of seven percent (7%) per annum, compounded daily; and (b) Its costs and expenses, including court costs, attorneys' fees, and expert and consultants fees, if any, incurred in connection with such action. Section 7.07 Construction of Agreement. This Agreement shall be construed as a whole in accordance with its fair meaning and in accordance with the laws of the State of California. Neither the Group, nor any member of the Group, shall challenge the assumption provisions set forth in Section 3.01 (a) or in the OPOG Members Assurance, Exhibit E. Should any part of this Agreement be found void or invalid, the remaining portions of this Agreement shall remain in effect. However, in the event that the assumption provision set forth in Section 3.01(a) is found void or invalid, then this Agreement shall be void ab initio and all sums paid by the Settling Parties to the Group shall be returned within 30 days of such finding. The Parties have jointly drafted this Agreement and the language of the Agreement shall not be construed in favor of or against any particular Party based on the Parties' respective roles in the drafting process. The headings used herein are for reference only and shall not affect the construction of this Agreement. This document may be executed in counterparts with each copy considered an original. A copy of the full Agreement will be distributed to each Party upon complete execution and a copy will also be retained by and available to any Party from the Omega LLC or such other entity as the Group may from time to time designate. Section 7.08 Independent Counsel. Each of the Parties represents and warrants that, in connection with the negotiation and execution of this Agreement it has been represented by independent counsel of its own choosing, that it has not relied upon the advice or counsel of the other Parry's independent counsel in the negotiation or drafting of this Agreement, that it has executed this Agreement after receiving the advice of such independent counsel, that its representative has read and understands the provisions and terms of this Agreement, and that it has had an adequate opportunity to conduct OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT 10 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION an independent investigation of all facts and circumstances with respect to all matters that are the subject of this Agreement. Section 7.09 Deadlines. If the date by which any payment must be made or any action must be taken pursuant to this Agreement is a Saturday, Sunday, or holiday as described in California Civil Code Section 7, then that date shall be extended until the next calendar day which is not a Saturday, Sunday, or holiday. Section 7.10 Sole Agreement This Agreement represents the sole and entire agreement between the Parties and supersedes all prior agreements, negotiations and discussions between the Parties hereto and/or their respective counsel with respect to the subject matters covered hereby. Section 7.11 Amendment to Agreement Any amendment to this Agreement must be in a writing, signed by duly authorized representatives of the Parties hereto and stating the intent of the Parties to amend this Agreement. Section 7.12 Corporate Auth ority. All corporate Parties hereto represent and warrant that the execution and delivery of this Agreement, including the attached Exhibits, has been duly and validly authorized and approved by all requisite corporate action and that no further action is necessary to make this Agreement and all transactions contemplated hereby valid and binding on the parties in accordance with its terms. The corporate signatories hereto represent and warrant that they are authorized to execute and deliver this Agreement on behalf of their respective corporate entities or other entities on whose behalf they have signed. Without limiting the foregoing, the signatories on behalf of OPOG and Omega LLC hereby represent and warrant that the execution and delivery of this Agreement has been duly and validly authorized and approved by all requisite corporate or other necessary action including as required by the Omega Chemical Site PRP Group Participation Agreement, as amended from time to time, including as amended by Exhibits G hereto, and that no further action is necessary to make this Agreement and all transactions contemplated hereby valid and binding on the OPOG and Omega LLC. Section 7.13 Binding. This Agreement shall apply to and be binding upon the Parties, and their successors and assigns. Any change in ownership or corporate or other legal status, including, but not limited to, any transfer of assets or real or personal property, shall in no way alter the status or responsibilities of the Parties under this Agreement. However, nothing in this Agreement, nor any purported assignment, shall relieve the Group, or any of the OPOG Members, of their obligations under this Agreement. OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT II PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION IN WITNESS WHEREOF, the Parties hereto enter into this Omega Chemical Site Settlement 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. OMEGA CHEMICAL PRP GROUP Dated: Signature: Typed Name: Larry G. Gutterridge Title: Counsel OMR.,U-III;\IICAL sni-: SLTILLMLNT A(iRLI-:.MF\T 12 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION OMEGA CHEMICAL fRP GROUP LLC Dated: '/ Signature: Typed Name: Keith F. Millhouse Title: Member [Settling Party execution pages follow.] OMKi.AC HI-MK'AI. Mil: SI:T !LI-MI NTAGRH Mf.vr 13 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION EXHIBIT A TO OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT SETTLING PARTIES WITH RE-OPENER AND SETTLEMENT AMOUNTS Settling Party Volume Settlement Amount American International Industries 8.6611 $49.179.11 Atoll Holdings, Inc.4.8164 $26.731.02 Rooke Corp. d/b/a Aviation Equipment, Inc. [terms]3.8364 $21,292.02 Brunton Enterprises, Inc.3.0650 $17,010.75 Can/in Corp.5.5044 $30,549.42 Central Plaza 7,5380 $41,835.90 Corchem Corporation 7.3392 $40.732.56 Couch and Philippi dba Primus, Inc.8.7153 $48.369.92 Ed-Lin Auto Body/Modem Auto Body 3.3360 $18,514.80 OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT Exhibit A I PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION Gamboa's Body & Frame, Inc. Good-West Rubber Corp. I & 1 Debarring, Inc. JD Property Management, Inc. Kwikset Corporation Luppen Holdings Inc. M & M Printed Bag, Inc. Newton Heat Treating Co., Inc. Northwestern, Inc. Penske Corporation and Penske Automotive Group, Inc. Pneudraulics, Inc. Pocino Foods Company 3.4000 3.0441 6.7763 3.5500 7.6103 3.8364 6.1925 3.2109 5.7028 3.1901 3.2109 3.4277 OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT Exhibit A 2 $18.870.00 $16,894.76 $37.608.47 $19.702.50 $42.237.17 $21,292.02 $34.368.38 $17.820.50 $31.650.54 $17.704,78 $17.820.50 $19,023.74 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION Quaker City Plating Ltd.5.0457 $28.003.64 Santa Fe Braun 8.1057 $44,986.64 Tech Graphics, Inc./Paul Cain 7.7500 $43.012.50 Unldynamics/Phoenix, Inc., now known as Crane Co.3.6696 $20.366.28 OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT Exhibit A 3 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION EXHIBITS TO OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT SETTLING PARTIES WITHOUT RE-OPENER AND SETTLEMENT AMOUNTS Settling Party Volume Settlement Amount Aircraft Cylinder & Turbines 3.6279 $23,762.75 Air Mechanical, Inc. (The A & T Group, Inc.)5.2617 $34,464.14 Allen Foam Corporation 5.9500 $38.972.50 Allen L. Bender, Inc.5.2457 $34,359.34 BC Laboratories, Inc.6.1633 $40.369.62 Bowen Printing, Inc.dba Bowen Enterprises 3.0574 $20.026.23 Catholic Healthcare West, a California nonprofit public benefit corporation, dba St. Mary Medical Center 4.6324 $30,342.22 Ceradyne, Inc.5.4210 $35.507.55 City of Santa Barbara 3.0935 $20,262.43 OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT Exhibit B PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION City of Carlsbad College of the Desert Cooper Industries, Inc. (McGraw Edison) Fort Kent Holdings, Inc. on behalf of Dunham Bush Inc. Cognis Corporation as successor to Henkel Corporation, for itself and on behalf of Henkel Corporation Ivy Hill Corp. Kennedy-Wilson Properties, Ltd. La Mirada Products Madison Industries of CA Martek Power Abbott. Inc. Maxon Industries Melles Griot. Inc. 5.1362 3.7530 5.7500 5.9631 4.6670 3.3360 4.3500 5.0000 9.1519 5.4869 6.0674 8.9697 OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT Exhibit B 2 $33,642.11 $24,582.15 $37,662.50 $39.058.31 $30.568.85 $21.850.80 $28.492.50 $32,750.00 $59.944.95 $35,939.20 $39.741.47 $58.751.54 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION Radiant Technology Corporation 4.8998 $32,093.69 Sears, Roebuck and Co.6.0920 $39.902.60 Superior Controls Co., Inc.*3.3694 $22.069.57 Textron Inc.7.5060 $49,164.30 Ventura Townehouse Inc.7.3899 $48.403.71 Western Tube & Conduit Corporation 4.0245 $26.360.48 Westmont College 5.8555 $38.353.53 OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT Exhibit B 3 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION EXHIBIT C TO OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT CERTIFICATION BY SETTLING PARTIES The undersigned, on behalf of the Settling Party in this Omega Chemical Site Settlement Agreement ("Agreement") stated below, certifies and attests, for the limited purpose of settlement and for no other purpose, as follows: 1. To the best of the Settling Party's knowledge, the Volume assigned to Settling Party in the Agreement represents the total amount of the Settling Party's material sent to or at the Omega Site, including any material that may be attributable to Settling Party's Affiliated Parties. 2. Settling Party verifies (1) that to the best of its knowledge, Settling Party has provided the Group with copies of all of Settling Party's and Settling Party's Affiliated Parties manifests and reasonably obtainable waste disposal records relating to the Omega Site, and has no reason to believe those manifests and records are incomplete or inaccurate, or (2) that it is relying on the manifests and records provided to the Settling Party and the Settling Party's Affiliated Parties by the United States Environmental Protection Agency, is agreeing to the EPA's volume determinations based thereon and has no reason to believe that those manifests, records and volumes are incomplete or in accurate. On behalf of the Settling Party, I hereby state that I am authorized to make this certification by and on behalf of the Settling Party, and I make this certification that reason, I have read the foregoing paragraphs and know their contents. I am informed and believe and on that ground allege that the information set forth above is, to the best of my knowledge, verily true and correct. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. SETTLING PARTY: Dated: Signature: Typed Name: Title: OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT Exhibit C 1 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION EXHIBIT D TO OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT OPOG MEMBERS MAKING OPOG MEMBERS ASSURANCE 1. Alcoa Inc. (on behalf of Alcoa Electronic Packaging, Inc., Alcoa Global Fasteners for TRE/Weslock and Alumax for Amerimax Building Products for Admiral Aluminum) 2. Allied Signal Inc. 3. Alpha Therapeutic Corporation 4. American Standard Inc. acting through its Trane business 5. Applied Micro Circuits Corporation 6. Astro Aluminum Treating Company 7. BASF Corporation 8. Baxter Healthcare Corporation 9. Bio Science Enterprises 10. Boeing Satellite Systems, Inc. 11. BP AMOCO Chemical Company 12. Cal Mart by Tucson Valley Liquidating Trust by J. Emery Barker, Trustee 13. California Hydroforming Co., Inc. 14. CC Industries Inc. (Federal Envelope) 15. Center Line Wheel Corporation 16. Chemical Waste Management, Inc. 17. Cintas Corporation (successor to Unitog Company) 18. Coastcast Corporation 19. Coatings Resource Corporation. 20. Crosby & Overton Inc. 2l.CTL Printing Inc. 22. Dude, Inc. 23. Engraph Inc./ Patton Sonoco Products 24. FHL Group 25. General Dynamics Corporation (Hughes Missile System) 26. Gul (Stream Aerospace Corp. 27. Hercules Corporation, Inc. 28. Hexcel Corporation (Ciba-Geigy) 29. Hitachi Home Electronics (America), Inc. 30. Honeywell Inc. (Sperry Aerospace & Marine Group) 31. International Paper Company 32. K.C. Photo Engraving Co. 33. Kinder Morgan Liquids Terminals, LLC, formerly known as GATX Terminals Corporation 34. LA County MTA (So. California RTD) 35. Luxfer USA Limited 36. Majon Inc./Hurst Labeling 37. Manville Corporation (Celite Corp.) OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT Exhibit E PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION 38. Masco Plumbing Products, Inc. as indemnitor for Norris Industries, Inc. 39. McDonnell Douglas Helicopter Company, a wholly owned subsidiary of McDonnell Douglas Corporation, a wholly owned subsidiary of The Boeing Company 40. MCP Foods (by Hexion Specialty Chemicals, Inc.and Firmenich Incorporated) 41. Metropolitan Water District of So. California 42. Northrop Grumman Systems Corporation 43. Online Corp. 44. Pacific Bell Telephone Company 45. Pilkington/Swedlow 46. Raytheon Company 47. Reichhold, Inc. 48. Robinson Prezioso, Inc. 49. Safety-Kleen Systems, Inc. 50. Schering Corporation 51. Sempra Energy Solutions 52. Shiley, Inc. (Pfizer) 53. Sigma Casting Corporation 54. Signet Armorlite, Inc. 55. Soco West, Inc. as successor to Holchem, Inc. 56. Sparton Technology, Inc. 57. State of California acting by and through the Department of Transportation 58. Texaco Inc. 59. Texas Instruments (Brown Burr) 60. The Boeing Company 61. The Sherwin-Williams Company 62. Treasure Chest 63. Union Oil Company of California 64. Univar Corp., Univar USA Inc. (f/k/a Van Waters & Rogers Inc., Vopak Distribution Americas Inc.) 65. Walt Disney Pictures and Television 66. Weber Aircraft 67. Yort, Inc. (Troy Lighting, Int. - Tiffany Division) OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT Exhibit 0 2 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION EXHIBIT E OPOG MEMBERS ASSURANCE The OPOG Members listed on Exhibit D agree that if the Group fails to carry out any of the commitments set forth in the Omega Chemical Site Settlement Agreement, (hereinafter the "Underlying Obligations") the OPOG Members will do so, subject to the rights of the Group and the OPOG Members to contest any obligation to EPA or any other regulatory agency under any Consent Decree or Other Agreements without imposing any additional risks or obligations on the Settling Parties. The obligations of the OPOG Members to carry out the Underlying Obligations are joint and several, unconditional and irrevocable, except as provided in the Underlying Obligations. However, should this OPOG Members Assurance ("Assurance") be invoked against one or more but not all of the OPOG Members, such member or members shall have a right of contribution against the other OPOG Members. The OPOG Members shall be responsible for the "orphan share" if any resulting from the dissolution or insolvency of any OPOG Member. However, the right of an OPOG Member to seek contribution against another OPOG Member shall not affect any OPOG Member's obligation under this Assurance to satisfy the Underlying Obligations. The commitments under this Assurance shall not be subject to any reduction, limitation, impairment or termination for any reason, including, without limitation, as a result of any waiver, release, surrender, alteration or compromise in the Underlying Obligations, and will not be subject to any defense or set off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Underlying Obligations or any discharge of debtor from any of the Underlying Obligations under bankruptcy or similar proceeding. Further, the OPOG Members waive any and all benefits which might otherwise be available to them under California Commercial Code § 3605, California Civil Codes §§ 2809, 2810, 2819, 2839, 2845, 2850,2899 and 3433, or any comparable provision of any other applicable law, as well as any and all other rights, defenses and benefits limiting the liability of or exonerating guarantors or sureties otherwise afforded by law. The OPOG Members hereby waive presentment, demand and protest of any Underlying Obligations and also waive notice of protest for non payment. The OPOG Members acknowledge that all the waivers set forth herein are freely granted, after consultation with competent counsel, since it is the intent and purpose of the OPOG Members that all of the commitments hereunder be absolute, independent and unconditional, except as provided in the Underlying Obligations, under any and all circumstances. This Assurance will be governed by and construed in accordance with the laws of the State of California; any suit brought hereon may be brought in the County of Los Angeles, State of California. OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT Exhibit E 1 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION The undersigned represents and warrants that it has authority to sign this Assurance on behalf of each of the OPOG Members listed in Exhibit D. An OPOG resolution authorizing Larry G. Gutterridge to sign this OPOG Members Assurance on behalf of the individual members of OPOG has been duly enacted pursuant to the procedures set forth in and the authority granted by the OPOG PRP Agreement. A, record of the authorization is set forth as Exhibit F. OMEGA CHEMICAL PRP GROUP Dated: Signature: Typed Name: Larry G. Guttferridge Title: Counsel OMKGA CHEMICAL SITK ShTTLI-MENT AGREEMENT Exhibit F. PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION EXHIBIT F AUTHORITY TO EXECUTE SETTLEMENT AGREEMENT AND MEMBERS ASSURANCE At a duly noticed meeting of the Omega PRP Organized Group (OPOG or Group), held on March 15,2006, pursuant to the Omega Chemical PRP Organized Group Participation Agreement, as amended from time to time, including as amended by Exhibit G hereto, the Group authorized Larry G. Gutterridge to (1) on behalf of OPOG, execute the Omega Chemical Site Settlement Agreement with the "Albert Cohen" Group of de minimis parties, and (2) on behalf of each Member of OPOG listed on Exhibit D, execute Exhibit E to said agreement, OPOG Members Assurance, thereby binding each such OPOG member to said Assurance as if each OPOG Member were an original signatory thereto. A quorum was present and the authorization was passed by unanimous voice vote with no members in opposition. OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT Exhibit F 1 PRIVILEGED AND CONFIDENTIAL SETTLEMENT COMMUNICATION EXHIBIT G AMENDMENT TO OMEGA PRP GROUP PARTICIPATION AGREEMENT At a duly noticed meeting of the Omega PRP Organized Group (OPOG or Group), called to consider this amendment and held on December 19th, 2005, the Group by a two-thirds vote of the Voting Power of the Members present or voting by proxy amended the Omega Chemical Site PRP Group Participation Agreement to add Section 24 as follows: 24. SETTLEMENT The Group shall have the authority to enter into the proposed agreement between the Omega Chemical PRP Organized Group and certain de minimis parties, a draft copy of which is attached hereto, which, among other things, provides that the Group assumes certain responsibilities of the settling de minimis parties related to the Site and by Exhibit E thereto assures that if the Group fails to meet its obligation under the agreement, then the Members set forth on Exhibit D to the Agreement shall be jointly and severally liable for satisfying that obligation. In the event that any one or more Member listed on Exhibit D is called upon to satisfy this obligation then the Members listed on Exhibit D agree to share the obligation according to the respective shares in the then current OPOG allocation. The agreement must be approved by a majority vote pursuant to paragraph 3.4 of the Agreement after appropriate notice is provided under paragraph 3.5 of the Agreement. The agreement shall be signed by an authorized representative of the Group. OMEGA CHEMICAL SITE SETTLEMENT AGREEMENT Exhibit G 1