Exhibit 10.7
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND UNITED
STATES DEPARTMENT OF JUSTICE CERCLA SECTION 122(h)(1) CASHOUT
AGREEMENT FOR ABILITY TO PAY PARTIES
SOLITRON DEVICES, INC.
ABILITY TO PAY MULTI-SITE SETTLEMENT
CERCLA SECTION 122(h)(1) CASHOUT AGREEMENT
FOR ABILITY TO PAY PERIPHERAL PARTIES
TABLE OF CONTENTS
Page
I. JURISDICTION............................................................1
II. BACKGROUND..............................................................1
III. PARTIES BOUND...........................................................2
IV. STATEMENT OF PURPOSE....................................................2
V. DEFINITIONS.............................................................2
VI. PAYMENT OF RESPONSE COSTS...............................................3
VII. FAILURE TO COMPLY WITH AGREEMENT........................................5
VIII. COVENANT NOT TO XXX BY EPA..............................................6
IX. RESERVATIONS OF RIGHTS BY EPA...........................................6
X. COVENANT NOT TO XXX BY SETTLING PARTY...................................7
XI. EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION............................8
XII. ACCESS TO INFORMATION...................................................8
XIII. RETENTION OF RECORDS....................................................9
XIV. CERTIFICATION..........................................................10
XV. NOTICES AND SUBMISSIONS................................................10
XVI. INTEGRATION/APPENDICES.................................................11
XVII. PUBLIC COMMENT.........................................................11
XVIII. EFFECTIVE DATE.........................................................11
CERCLA SECTION 122(h)(1) CASHOUT AGREEMENT
FOR ABILITY TO PAY PARTIES
IN THE MATTER OF: ) AGREEMENT
)
THE SOLITRON DEVICES, INC. )
ABILITY TO PAY ) U.S. EPA Region 4
MULTI-SITE SETTLEMENT ) CERCLA Docket No.-------------
)
Solitron Devices, Inc. ) PROCEEDING UNDER SECTION
SETTLING PARTY ) 122(h)(1) OF CERCLA
) 42 U.S.C. ss. 9622(h)(1)
---------------------------------------------
I. JURISDICTION
1. This Agreement is entered into pursuant to the authority vested in the
Administrator of the U.S. Environmental Protection Agency ("EPA") by Section
122(h)(1) of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. ss. 9622(h)(1), which
authority has been delegated to the Regional Administrators of the EPA by EPA
Delegation No. 14-14-D and redelegated through the Director, Waste Management
Division to the Chief, CERCLA Program Services Branch by EPA Delegation No.
14-14-D. This Agreement is also entered into pursuant to the authority of the
Attorney General of the United States to compromise and settle claims of the
United States.
2. This Agreement is made and entered into by EPA and Solitron Devices,
Inc. ("Settling Party"). Settling Party consents to and will not contest the
authority of the United States to enter into this Agreement or to implement or
enforce its terms.
II. BACKGROUND
3. This Agreement concerns the following sites which will be collectively
known as "the Sites": Solitron Devices Superfund Site located in Riviera Beach,
Florida; Solitron Microwave Superfund Site, located in Port Xxxxxxx, Florida;
Petroleum Products Corporation Superfund Site located in Pembroke Park, Florida;
City Industries, Inc. Superfund Site located in Orlando, Florida; and Casmalia
Resources Superfund Site located in Santa Xxxxxxx County, California. EPA
alleges that each Site is a facility as defined by Section 101(9) of CERCLA, 42
U.S.C. ss. 9601(9).
4. In response to the release or threatened release of hazardous
substances at or from the Sites, EPA undertook response actions at the Sites
pursuant to Section 104 of CERCLA, 42 U.S.C. ss. 9604, and may undertake
additional response actions in the future.
5. In performing response actions at the Sites, EPA has incurred response
costs and may incur additional response costs in the future.
6. EPA alleges that Settling Party is a responsible party pursuant to
Section 107(a) of CERCLA, 42 U.S.C. ss. 9607(a), and is jointly and severally
liable for response costs incurred and to be incurred at the Sites.
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7. EPA has reviewed the Financial Information submitted by Settling Party
to determine whether Settling Party is financially able to pay response costs
incurred and to be incurred at the Sites. Based upon this Financial Information,
EPA has determined that Settling Party has limited financial ability to pay for
response costs incurred and to be incurred at the Sites.
8. EPA and Settling Party recognize that this Agreement has been
negotiated in good faith and that this Agreement is entered into without the
admission or adjudication of any issue of fact or law. The actions undertaken by
Settling Party in accordance with this Agreement do not constitute an admission
of any liability. Settling Party does not admit, and retains the right to
controvert in any subsequent proceedings other than proceedings to implement or
enforce this Agreement, the validity of the facts or allegations contained in
this Section.
III. PARTIES BOUND
9. This Agreement shall be binding upon EPA and upon Settling Party and
its successors and assigns. Any change in ownership or corporate or other legal
status of Settling Party, including but not limited to any transfer of assets or
real or personal property, shall in no way alter Settling Party's
responsibilities under this Agreement. Each signatory to this Agreement
certifies that he or she is authorized to enter into the terms and conditions of
this Agreement and to bind legally the party represented by him or her.
IV. STATEMENT OF PURPOSE
10. By entering into this Agreement, the mutual objective of the Parties
is to avoid difficult and prolonged litigation by allowing Settling Party to
make a cash payment to address its alleged civil liability for the Sites as
provided in the Covenant Not to Xxx by EPA in Section VIII, subject to the
Reservations of Rights by EPA in Section IX.
V. DEFINITIONS
11. Unless otherwise expressly provided herein, terms used in this
Agreement which are defined in CERCLA or in regulations promulgated under CERCLA
shall have the meaning assigned to them in CERCLA or in such regulations.
Whenever terms listed below are used in this Agreement or in any appendix
attached hereto, the following definitions shall apply:
a. "Agreement" shall mean this Agreement and any attached
appendices. In the event of conflict between this Agreement and any appendix,
the Agreement shall control.
b. "CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. ss. 9601, et seq.
-- ----
c. "Day" shall mean a calendar day. In computing any period of time
under this Agreement, where the last day would fall on a Saturday, Sunday, or
federal holiday, the period shall run until the close of business of the next
working day.
d. "EPA" shall mean the United States Environmental Protection
Agency and any successor departments, agencies, or instrumentalities of the
United States.
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e. "Financial Information" shall mean all documents and other
information pertaining to the financial ability to pay of the Settling Party
which the Settling Party has provided to the United States prior to its
signature date on this Agreement.
f. "Interest" shall mean interest at the rate specified for interest
on investments of the Hazardous Substance Superfund established by 26 U.S.C. ss.
9507, compounded on October 1 of each year, in accordance with 42 U.S.C. ss.
9607(a). The applicable rate of interest shall be the rate in effect at the time
the interest accrues. The rate of interest is subject to change on October 1 of
each year.
g. "Paragraph" shall mean a portion of this Agreement identified by
an Arabic numeral or a lower case letter.
h. "Parties" shall mean EPA and Settling Party.
i. "RCRA" shall mean the Solid Waste Disposal Act, as amended, 42
U.S.C. xx.xx. 6901, et seq. (also known as the Resource Conservation and
Recovery Act).
j. "Section" shall mean a portion of this Agreement identified by a
Roman numeral.
k. "Settling Party" shall mean Solitron Devices, Inc.
l. "Sites" shall mean the Solitron Devices Superfund Site located in
Riviera Beach, Florida; the Solitron Microwave Superfund Site, located in Port
Xxxxxxx, Florida; the Petroleum Products Corporation Superfund Site located in
Pembroke Park, Florida; the City Industries, Inc. Superfund Site located in.
Orlando, Florida; and the Casmalia Resources Superfund Site located in Santa
Xxxxxxx County, California. These Sites are generally shown on the maps included
in Appendix A.
m. "United States" shall mean the United States of America,
including its departments, agencies, and instrumentalities.
VI. PAYMENT OF RESPONSE COSTS
12. Settling Party shall pay to the EPA Hazardous Substance Superfund the
principal sum of $74,000, plus an additional sum for Interest as explained
below. Payment shall be made in quarterly installments over a two year period.
Each installment, except for the first, on which no interest shall be due, shall
include the principal amount due plus an additional sum for accrued Interest on
the declining principal balance calculated from the effective date of this
Agreement as defined by Paragraph 39. The first payment of $9,250 shall be due
within 30 days of the effective date of this Agreement as defined by Paragraph
39. Subsequent payments of $9,338.20, plus interest, shall be due at intervals
of ninety (90) days after date of the first payment until all payments have been
made. Settling Party may accelerate these payments, and Interest due on the
accelerated payments shall be reduced accordingly. Payment shall be made by
Electronic Funds Transfer ("EFT") in accordance with instructions to be provided
to Settling Party by EPA Region 4, and shall be accompanied by a statement
identifying the name and address of Settling Party, the Site name Solitron
Microwave Superfund Site, the EPA Region and Site/Spill ID # 04T7, and the EPA
docket number for this action, and shall be sent to:
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U.S. EPA Region 4 Superfund Accounting
X.X. Xxx 000000
Xxxxxxx, XX 00000
Attention: Collection Officer in Superfund
At the time of each payment, Settling Party shall send notice that such payment
has been made to:
Xxxxx X. Xxxxxxxxx EPA - Region 4 4WD-PSB/11th Floor 00 Xxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
13. The United States agrees to the payment by the Settling Party of
$74,000 in settlement of all its claims related to the Sites encompassed herein,
based in part on the determination by the United States' financial analyst that
Settling Party was not capable of any additional payments at this time. However,
the Settling Party may become more financially solvent as a result of this
Agreement, and it is equitable that a portion of that settlement benefit should
inure to the United States and EPA. The amount of $74,000 is to be paid over a
two year period after the AOC has been executed (Year #1 and #2). In succeeding
years (Years #3 through #7) Solitron agrees to make an Additional Payment as set
forth in Paragraph 14.
14. The Additional Payment shall be determined in each of Years #3 through
#7 as follows: The first step is determining the Settling Party's Net After Tax
Income. EPA and the Settling Party agree that the term "Net After Tax Income"
shall he determined in accordance with generally accepted accounting principles
and shall not utilize an accelerated depreciation schedule. Within thirty days
(30) of the anniversary of the AOC's execution in each of Years #3 through #7,
the Settling Party shall submit to EPA, at the address indicated in paragraph
12, a written letter from its Chief Executive Officer and certified public
accountant certifying the preceding year's Net After Tax income amount, if any.
The Settling Party shall also at that time submit to EPA a copy of its 10Q and
10K statements for the prior year, filed with the Securities and Exchange
Commission (SEC). In the alternative, the Settling Party can submit a copy of
its current audited financial statement if there are no filings with the SEC.
EPA reserves the right to request and review additional supporting documentation
for the financial data as it deems necessary. The second step is for the
Settling Party to determine whether its Net After Tax Income exceeds $500,000,
and if so the amount by which the Net After Tax Income exceeds $500,000. If the
Net After Tax Income exceeds $500,000 by any amount between $1 and $200,000 then
the Settling Party must pay an additional $10,000. If the Net After Tax Income
exceeds $500,000 by any amount more than $200,000, then the Settling Party must
pay 5% of that amount. In the third and final step, the Settling Party must
submit the Additional Payment within sixty (60) days of the anniversary of the
AOC's execution in each of Years #3 through #7, unless the Settling Party
receives an objection from EPA with regard to the calculation of the Net After
Tax Income. If for any Year #3 through #7, EPA makes a determination of Net
After Tax Income which differs from the Settling Party's determination of Net
After Tax Income, EPA will notify the Settling Party within twenty days (20) of
EPA's receipt of the Settling Party's certification of Net After Tax Income, as
to what the adjusted amount of Net After Tax Income is and the adjusted amount
of Additional Payment if any. The Settling Party will pay the adjusted amount of
Additional Payment within Thirty Days (30) of receipt of notice from EPA.
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15. The total amount(s) to be paid by Settling Party pursuant to
Paragraphs 12 through 14 shall be deposited in the Solitron Microwave Superfund
Site Special Account within the EPA Hazardous Substance Superfund to be retained
and used to conduct or finance response actions at or in connection with the
Site, or to be transferred by EPA to the EPA Hazardous Substance Superfund.
VII. FAILURE TO COMPLY WITH AGREEMENT
16. If Settling Party fails to make any payment required by Paragraph 12
by the required due date, all remaining installment payments and all accrued
Interest shall become due immediately upon such failure. Interest shall continue
to accrue on any unpaid amounts until the total amount due has been received. If
Settling Party fails to make any payment under Paragraph 13 by the required due
date, Interest shall accrue on the unpaid balance through the date of payment.
17. Stipulated Penalty.
a. If any amounts due under Paragraph 12 and Paragraph 13 are not
paid by the required date, Settling Party shall be in violation of this
Agreement and shall pay to EPA, as a stipulated penalty, in addition to the
Interest required by Paragraph 16, $500 per violation per day that such payment
is late.
b. Stipulated penalties are due and payable within 30 days of the
date of demand for payment of the penalties. All payments under this Paragraph
shall be identified as "stipulated penalties" and shall made by certified or
cashier's check made payable to "EPA Hazardous Substance Superfund." The check,
or a letter accompanying the check, shall reference the name and address of
Settling Party, the Site name Solitron Microwave Superfund Site, the EPA Region
and Site/Spill ID # 04T7, and the EPA docket number for this action, and shall
be sent to:
U.S. EPA Region 4 Superfund Accounting
X.X. Xxx 000000
Xxxxxxx, XX 00000
Attention: Collection Officer in Superfund
c. At the time of each payment, Settling Party shall send notice
that such payment has been made to EPA in accordance with Section XV (Notices
and Submissions). Such notice shall identify the Region and Xxxx-Xxxxx XX # 00X0
and the EPA Docket Number for this action.
d. Penalties shall accrue as provided above regardless of whether
EPA has notified Settling Party of the violation or made a demand for payment,
but need only be paid upon demand. All penalties shall begin to accrue on the
day after payment is due and shall continue to accrue through the date of
payment. Nothing herein shall prevent the simultaneous accrual of separate
penalties for separate violations of this Agreement.
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18. In addition to the Interest and Stipulated Penalty payments required
by this Section and any other remedies or sanctions available to the United
States by virtue of Settling Party's failure to comply with the requirements of
this Agreement, if Settling Party fails or refuses to comply with any term or
condition of this Agreement, it shall be subject to enforcement action pursuant
to Section 122(h)(3) of CERCLA, 42 U.S.C. ss. 9622(h)(3). If the United States
brings an action to enforce this Agreement, Settling Party shall reimburse the
United States for all costs of such action, including but not limited to costs
of attorney time.
19. Notwithstanding any other provision of this Section, EPA may, in its
unreviewable discretion, waive payment of any portion of the stipulated
penalties that have accrued pursuant to this Agreement. Settling Party's payment
of stipulated penalties shall not excuse Settling Party from payment as required
by Paragraph 12 and Paragraph 13 or from performance of any other requirements
of this Agreement.
VIII. COVENANT NOT TO XXX BY EPA
20. Except as specifically provided in Section IX (Reservations of Rights
by EPA), EPA covenants not to xxx or to take administrative action against
Settling Party pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. xx.xx.
9606 and 9607(a), with regard to the Sites. With respect to present and future
liability, this covenant shall take effect upon receipt by EPA. of the first
payment required by Section VI, Paragraph 12 (Payment of Response Costs). This
covenant not to xxx is conditioned upon the satisfactory performance by Settling
Party of its obligations under this Agreement, including but not limited to,
payment of all amounts due under Section VI (Payment of Response Costs) and any
amount due under Section VII (Failure to Comply with Agreement). This covenant
not to xxx is also conditioned upon the veracity and completeness of the
Financial Information provided to EPA by Settling Party. If the Financial
Information is subsequently determined by EPA to be false or, in any material
respect, inaccurate, Settling Party shall forfeit all payments made pursuant to
this Agreement and the covenant not to xxx shall be null and void. Such
forfeiture shall not constitute liquidated damages and shall not in any way
foreclose EPA's right to pursue any other causes of action arising from Settling
Party's false or materially inaccurate information. This covenant not to xxx
extends only to Settling Party and does not extend to any other person.
IX. RESERVATIONS OF RIGHTS BY EPA
21. EPA reserves, and this Agreement is without prejudice to, all rights
against Settling Party with respect to all matters not expressly included within
the Covenant Not to Xxx by EPA in Paragraph 20. Notwithstanding any other
provision of this Agreement, EPA reserves all rights against Settling Party with
respect to:
a. liability for failure of Settling Party to meet a requirement of
this Agreement;
b. criminal liability;
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c. liability for damages for injury to, destruction of, or loss of
natural resources, and for the costs of any natural resource damage assessments;
d. liability, based upon Settling Party's ownership or operation of
the Sites, or upon Settling Party's transportation, treatment, storage, or
disposal, or the arrangement for the transportation, treatment, storage, or
disposal, of a hazardous substance or a solid waste at or in connection with the
Sites, after signature of this Agreement by Settling Party; and
e. liability arising from the past, present, or future disposal,
release or threat of release of a hazardous substance, pollutant, or contaminant
outside of the Sites.
22. Notwithstanding any other provision of this Agreement, EPA reserves,
and this Agreement is without prejudice to, the right to reinstitute or reopen
this action, or to commence a new action seeking relief other than as provided
in this Agreement, if the Financial Information provided by Settling Party, or
the financial certification made by Settling Party in Paragraph 35(b), is false
or, in an material respect, inaccurate.
23. Nothing in this Agreement is intended to be nor shall it be construed
as a release, covenant not to xxx, or compromise of any claim or cause of
action, administrative or judicial, civil or criminal, past or future, in law or
in equity, which EPA may have against any person, firm, corporation or other
entity not a signatory to this Agreement.
X. COVENANT NOT TO XXX BY SETTLING PARTY
24. Settling Party agrees not to assert any claims or causes of action
against the United States, or its contractors or employees, with respect to the
Sites or this Agreement, including but not limited to:
a. any direct or indirect claim for reimbursement from the EPA
Hazardous Substance Superfund established by 26 U.S.C. ss. 9507, based on.
Sections 106(b)(2), 107, 111, 112, or 113 of CERCLA, 42 U.S.C. xx.xx.
9606(b)(2), 9607, 9611, 9612, or 9613, or any other provision of law;
b. any claim arising out of response actions at or in connection
with the Sites, including any claim under the United States Constitution, the
Florida or California State Constitutions, the Xxxxxx Act, 28 U.S.C. ss. 1491,
the Equal Access to Justice Act, 28 U.S.C. ss. 2412, as amended, or at common
law; or
c. any claim against the United States pursuant to Sections 107 and
113 of CERCLA, 42 U.S.C. xx.xx. 9607 and 9613, relating to the Sites.
Except as provided in Paragraph 26 (Waiver of Claims) and Paragraph 29 (Waiver
of Claim-Splitting Defenses), these covenants not to xxx shall not apply in the
event the United States brings a cause of action or issues an order pursuant to
the reservations set forth in Paragraph 21(c) - (e), but only to the extent that
Settling Party's claims arise from the same response action or response costs
that the United States is seeking pursuant to the applicable reservation.
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25. Nothing in this Agreement shall be deemed to constitute approval or
preauthorization of a claim within the meaning of Section 111 of CERCLA, 42
U.S.C. ss. 9611, or 40 C.F.R. 300.700(d).
26. Settling Party agrees not to assert any claims or causes of action
that it may have for all matters relating to the Sites, including for
contribution, against any other person. This waiver shall not apply with respect
to any defense, claim, or cause of action that Settling Party may have against
any person if such person asserts a claim or cause of action relating to the
Sites against Settling Party.
XI. EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION
27. Except as provided in Paragraph 26, 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. EPA reserves any and all rights (including, but
not limited to, any right to contribution), defenses, claims, demands, and
causes of action that it may have with respect to any matter, transaction, or
occurrence relating in any way to the Sites against any person not a Party
hereto.
28. The Parties agree that Settling Party is entitled, as of the effective
date of this Agreement, to protection from contribution actions or claims as
provided by Sections 113(0(2) and 122(h)(4) of CERCLA, 42 U.S.C. xx.xx.
9613(f)(2) and 9622(h)(4), for "matters addressed" in this Agreement. The
"matters addressed" in this Agreement are all response actions taken or to be
taken and all response costs incurred or to be incurred, at or in connection
with the Sites, by the United States or any other person. The "matters
addressed" in this Agreement do not include those response costs or response
actions as to which EPA has reserved its rights under this Agreement (except for
claims for failure to comply with this Agreement), in the event that EPA asserts
rights against Settling Party coming within the scope of such reservations.
29. In any subsequent administrative or judicial proceeding initiated by
the United States for injunctive relief, recovery of response costs, or other
relief relating to the Sites, Settling Party shall not assert, and may not
maintain, any defense or claim based upon the principles of waiver, res
judicata, collateral estoppel, issue preclusion, claim-splitting, or other
defenses based upon any contention that the claims raised by the United States
in the subsequent proceeding were or should have been addressed in this
Agreement; provided, however, that nothing in this Paragraph affects the
enforceability of the Covenant Not to Xxx by EPA set forth in Paragraph 20.
XII. ACCESS TO INFORMATION
30. Settling Party shall provide to EPA, upon request, copies of all
records, reports, or information (hereinafter referred to as "records") within
its possession or control or that of its contractors or agents relating to
activities at the Sites or to the implementation of this Agreement, including,
but not limited to, sampling, analysis, chain of custody records, manifests,
trucking logs, receipts, reports, sample traffic routing, correspondence, or
other documents or information related to the Sites.
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31. Confidential Business Information and Privileged Documents.
a. Settling Party may assert business confidentiality claims
covering part or all records submitted to EPA under this Agreement to the extent
permitted by and in accordance with Section 104(e)(7) of CERCLA, 42 U.S.C. ss.
9604(e)(7), and 40 C.F.R. 2.203(b). Records determined to be confidential by EPA
will be accorded the protection specified in 40 C.F.R. Part 2, Subpart B. EPA
agrees that copies of any of Settling Party's corporate income tax returns
provided to EPA shall be maintained by EPA as confidential documents subject to
a business confidentiality claim under this Agreement. If no claim of
confidentiality accompanies other records when they are submitted to EPA, or if
EPA has notified Settling Party that the records are not confidential under the
standards of Section 104(e)(7) of CERCLA or 40 C.F.R. Part 2 Subpart B, the
public may be given access to such records without further notice to Settling
Party.
b. Settling Party may assert that certain records are privileged
under the attorney-client privilege or any other privilege recognized by federal
law. If Settling Party asserts such a privilege in lieu of providing records, it
shall provide EPA with the following: 1) the title of the record; 2) the date of
the record; 3) the name, title, affiliation (e.g., company or firm), and address
of the author of the record; 4) the name and title of each addressee and
recipient; 5) a description of the subject of the record; and 6) the privilege
asserted. If a claim of privilege applies only to a portion of a record, the
record shall be provided to EPA in redacted form to mask the privileged portion
only. Settling Party shall retain all records that it claims to be privileged
until EPA has had a reasonable opportunity to dispute the privilege claim and
any such dispute has been resolved in Settling Party's favor. However, no
records created or generated pursuant to the requirements of this or any other
settlement with the EPA pertaining to the Sites shall be withheld on the grounds
that they are privileged.
32. No claim of confidentiality shall be made with respect to any data,
including but not limited to, all sampling, analytical, monitoring,
hydrogeologic, scientific, chemical, or engineering data, or any other documents
or information evidencing conditions at or around the Sites.
XIII. RETENTION OF RECORDS
33. Until 5 years after the effective date of this Agreement, Settling
Party shall preserve and retain all records now in its possession or control, or
which come into its possession or control, that relate in any manner to response
actions taken at the Sites or to the liability of any person for response
actions or response costs at or in connection with the Sites, regardless of any
corporate retention policy to the contrary.
34. After the conclusion of the document retention period in the preceding
paragraph, Settling Party shall notify EPA at least 90 days prior to the
destruction of any such records, and, upon request by EPA, Settling Party shall
deliver any such records to EPA. Settling Party may assert that certain records
are privileged under the attorney-client privilege or any other privilege
recognized by federal law. If Settling Party asserts such a privilege, it shall
provide EPA with the following: 1) the title of the record; 2) the date of the
record; 3) the name, title, affiliation (e.g., company or firm), and address of
the author of the record; 4) the name and title of each addressee and recipient;
5) a description of the subject of the record; and 6) the privilege asserted. If
a claim of privilege applies only to a portion of a record, the record will be
provided to EPA in redacted form to mask the privileged portion only. Settling
Party shall retain all records that it claims to be privileged until EPA has bad
a reasonable opportunity to dispute the privilege claim and any such dispute has
been resolved in Settling Party's favor. However, no records created or
generated pursuant to the requirements of this or any other settlement with the
EPA pertaining to the Sites shall be withheld on the grounds that they are
privileged.
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XIV. CERTIFICATION
35. Settling Party hereby certifies that, to the best of its knowledge and
belief, after thorough inquiry, it has:
a. not altered, mutilated, discarded, destroyed or otherwise
disposed of any records, reports, or information relating to its potential
liability regarding the Sites since notification of potential liability by the
United States or the states or the filing of a suit against it regarding the
Sites and that it has fully complied with any and all EPA requests for documents
or information regarding the Sites and Settling Party's financial circumstances
pursuant to Sections 104(e) and 122(e) of CERCLA, 42 U.S.C. xx.xx. 9604(e) and
9622(e), or Section 3007 of RCRA, 42 U.S.C. ss. 6927;
b. submitted to EPA Financial Information that fairly, accurately,
and materially sets forth its financial circumstances, and that those
circumstances have not materially changed between the time the Financial
Information was submitted to EPA and the time Settling Party executes this
Agreement; and
c. fully disclosed the existence of any insurance policies that may
cover claims relating to cleanup of the Sites.
XV. NOTICES AND SUBMISSIONS
36. Whenever, under the terms of this Agreement, notice is required to be
given or a document is required to be sent by one Party to another, it shall be
directed to the individuals at the addresses specified below, unless those
individuals or their successors give notice of a change to the other Party in
writing. Written notice as specified herein shall constitute complete
satisfaction of any written notice requirement of this Agreement with respect to
EPA and. Settling Party.
As to EPA:
Xxxxxxxx Xxxx
Associate Regional Counsel U.S. EPA, Region 4
Atlanta Federal Center
00 Xxxxxxx Xx., X.X.
Xxxxxxx, XX 00000
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As to Settling. Party:
Xxxxxxx Xxxxx, President Solitron Devices, Inc.
0000 Xxxxxxxxxxx Xxx
Xxxx Xxxx Xxxxx, XX 00000
with a copy to:
Xxxxxxx. X. Xxxxx Akerman Senterfitt
X.X. Xxx 000
Xxxxxxx, Xxxxxxx 00000-0000
XVI. INTEGRATION/APPENDICES
37. This Agreement and its Appendix A constitute the final, complete and
exclusive agreement and understanding between the Parties with respect to the
settlement embodied in this Agreement. The Parties acknowledge that there are no
representations, agreements, or understandings relating to the settlement other
than those expressly contained in this Agreement. Appendix A, which contains
maps generally showing the location of the Sites, is attached to and
incorporated into this Agreement.
XVII. PUBLIC COMMENT
38. This Agreement shall be subject to a public comment period of not less
than 30 days pursuant to Section 122(i) of CERCLA, 42 U.S.C. ss. 9622(i). In
accordance with Section 122(i)(3) of CERCLA, the United States may modify or
withdraw its consent to this Agreement if comments received disclose facts or
considerations which indicate that this Agreement is inappropriate, improper, or
inadequate.
XVIII. EFFECTIVE DATE
39. The effective date of this Agreement shall be the date upon which EPA
issues written notice that the public comment period pursuant to Paragraph 38
has closed and that comments received, if any, do not require modification of or
withdrawal by the United States from this Agreement.
IT IS SO AGREED:
U.S. Environmental Protection Agency
By:/s/ Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxx, Chief
CERCLA Superfund Enforcement
and Information Management Branch
Waste Management Division
11
Solitron Devices, Inc. Global Settlement- 122(h) Cost Recovery Agreement
U.S. Department of Justice
/s/ Xxxxx X. Xxxxxxx
----------------------------------------------------------
XXXXX X. XXXXXXX
Acting Assistant Attorney General
Environment and Natural Resources Division
United States Department of Justice
Xxxxxxxxxx, X.X. 00000
/s/ Xxxxxx X. Xxxxx
----------------------------------------------------------
XXXXXX X. XXXXX
Attorney
Environmental Enforcement Section
Environment and Natural Resources Division U.S. Department
of Justice
X.X. Xxx 0000 Xxxxxxxxxx,
X.X. 00000-0000
12
Solitron Devices, Inc. Global Settlement- 122(h) Cost Recovery Agreement
THE UNDERSIGNED SETTLING PARTY enters into this Agreement in the matter of 04T7.
relating to the Solitron Devices. Inc. Global Settlement:
SETTLING PARTY:
Solitron Devices. Inc.
0000 Xxxxxxxxxxx Xxx
-------------------------
Xxxx Xxxx Xxxxx, XX 00000
-------------------------
[Address]
By:/s/ Xxxxxxx Xxxxx 07/28/2005
----------------------------------- --------------------------------
[Signature] [Date]
Chairman, President & CEO
-------------------------
[Title]
Xxxxxxx Xxxxx
-------------------------
[Printed Name]
13
Figure 1-1 Site Location Map
[Graphics Omitted]
14
Appendix C
[Graphic Omitted]
15
