ORDERS:
CONSENT ORDER OF DISMISSAL WITHOUT PREJUDICE
Each of the Petitioners above-named, by and with the consent of the Respondent, hereby dismiss, without
prejudice and without costs, their respective Petitions in the captioned case. It is further stipulated and agreed by and
among the Petitioners and Respondent that each or any of said Petitioners may re-file a petition involving the same or
similar allegations and issues at any time in the future subject to and in accordance with the Tolling Agreement executed
by the parties contemporaneously herewith, which Agreement is incorporated by reference herein.
AND IT IS SO ORDERED.
_______________________
May 13, 1998 Alison Renee Lee
Administrative Law Judge
WE SO MOVE. WE CONSENT.
GASTON COPPER RECYCLING and SOUTH CAROLINA DEPARTMENT OF
SOUTHWIRE COMPANY HEALTH AND ENVIRONMENTAL CONTROL
By: _______________________ By:___________________________
James Lynn Werner Jacquelyn S. Dickman
South Carolina Bar No. 6029 2600 Bull Street
Post Office Box 11612 Columbia, South Carolina 29201
Columbia, South Carolina 29211
(803) 255-0000
LUCENT TECHNOLOGIES, INC.
By: _______________________
James W. Orr, Federal I.D. No. 2935
BOWERS, ORR, & DOUGALL, L.L.P.
P.O. Box 7307
Columbia, South Carolina 29202
(803) 252-0494
KERR-McGEE CHEMICAL CORPORATION
By: ___________________________
James W. Orr, Federal I.D. No. 2935
BOWERS, ORR, & DOUGALL, L.L.P.
P.O. Box 7307
Columbia, South Carolina 29202
(803) 252-0494
CLARIANT CORPORATION
By.____________________________
Timothy W. Bouch, Fed. I.D. No. ____
YOUNG CLEMENT RIVERS & TISDALE
Post Office Box 933
Charleston, SC 29042
(803) 577-4000
TOLLING AGREEMENT
This Agreement is entered into as of May 11, 1998, by and among KerrMcGee Chemical
Corporation, Gaston Copper Recycling Corporation, Southwire Company, Lucent Technologies, Inc.,
and Clariant Corporation (collectively referred to as "Petitioners"), the South Carolina Department of
Health and Environmental Control ("DHEC"), and W. J. Bullock and Plant Roberts Chemicals,
(collectively referred to as "the Settling PRPs").
WHEREAS, DHEC is Respondent in a pending action in the State of South Carolina,
Administrative Law Judge Division, entitled Kerr-McGee Chemical Corporation, Lucent
Technologies, Inc., Clariant Corporation v. South Carolina Department of Health and Environmental
Control, Gaston Copper Recycling Corporation, and Southwire Company, Docket No. 98-ALJ-07-0219-CC (hereinafter "the Administrative Action") and the Settling PRPs are parties who claim an
interest in the outcome of said case.
WHEREAS, the parties desire to avoid ongoing multiple actions and first to allow the case
pending in the United States District Court for the District of South Carolina, Charleston Division,
Case No. 2:97-726-12 to proceed without the additional burden and expense associated with the
administrative action referred to above.
WHEREAS, to accomplish the efficiency just described, DHEC and the Petitioners have
negotiated a Consent Order of Dismissal Without Prejudice of the Administrative Action, which
dismissal is specifically conditioned upon and taken in direct reliance upon this Agreement.
WHEREAS, to facilitate the dismissal of the Administrative Action, the parties wish to prevent
a bar to any further action by the Petitioners in the administrative forum by reason of the running of
any applicable limitations period or other time limit.
WHEREAS, the purpose of this Agreement is, among other things, to preserve any claims and
positions that could be asserted by Petitioners in the administrative forum and to toll the running of each
and every limitations period or other time limit applicable to such claims and positions. NOW,
THEREFORE, for valuable consideration, and the covenants set forth herein, the receipt of which are
hereby acknowledged, the parties agree as follows:
1. Any limitations period or other time limit that may be applicable to any claim by any Petitioner
that arises out of or relates to the subject of the Administrative Action, or the transactions at
issue in the Administrative Action described above, are hereby tolled. Such limitations period
or other time limits shall cease to run as of the filing date of the original Petitions in the
Administrative Action and shall not commence again until thirty (30) days after the valid
termination of this Agreement pursuant to Paragraph 5 below (the "Tolled Period").
2. By entering into this Agreement, no party acknowledges the validity of any defense based upon
the passage of time, nor does any party, except as provided for herein, waive any such defence.
In particular, DHEC and the Settling PRPs do not waive any defense to the Administrative
Action which arises, in whole or in part, from the Petitioners' alleged untimely filing of their
Petition to commence the Administrative Action.
3. All defences to any claim that any party may assert against any other party to this Agreement,
ncluding but not limited to defences premised on the statute of limitations and other legal or
quitable defences such as [aches, waiver and estoppel that are based on the passage of time from
he filing date of the original Petitions in the Administrative Action until the date any applicable
statute of limitation is reactivated under thisAgreement are hereby waived, and the parties will
not be prejudiced in any way by the passage of time from the filing date of the original Petitions
in the Administrative Action until the date any applicable statute of limitation again begins to
run pursuant to this Agreement. Each party's time to do any act, including but not limited to its
time to commence any action in connection with any claim it may wish to assert against any
other party to this Agreement, will not be reduced by the passage of time encompassed in the
Tolled Period. Each party hereby agrees that it will not assert in any recommenced
Administrative Action the defense of statute of limitations or other legal or equitable defences
such as [aches, waiver or estoppel that are based on the passage of time from the filing date of
the original Petitions in the Administrative Action through the Tolled Period.
4. It is the intention of the parties in executing this Agreement to maintain and preserve the status
quo in the pending Administrative Action, as of the date hereof, in the event a new action is filed
in the future as contemplated herein.
5. This Agreement may be terminated by any party at any time by delivering written notice to the
other parties.
6. Termination of this Agreement pursuant to Paragraph 5 above shall not give rise to anyclaim for
breach of this Agreement or any duty hereunder. All rights that arise under this Agreement,
including the tolling of any limitations period or other time limit and the suspension of the
effect of other legal and equitable defences such as [aches, waiver and estoppel that are based
on the passage of time from the filing date of the original Petitions in the Administrative Action
through the Tolled Period, shall be vested and not extinguished by such termination.
7. Nothing contained in this Agreement shall be construed as an admission by any party of any liability to
any other party or of the availability or merits of any claim or cause of action, asserted or unassorted, of
any other party.
8. Each signatory for each party hereto warrants that he represents and is authorised to execute this Agreement
on behalf of said party.
9. This Agreement shall be binding on and insure to the benefit of the parties and their respective directors,
officers, shareholders, agents, employees, representatives, successors, assigns, privies, subsidiaries, parents
and affiliated companies.
10. This Agreement represents the entire agreement among the parties regarding the subject matter contained
herein and may be amended only by a writing signed by all the parties hereof.
11. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original.
12. This Agreement is subject to and shall be governed by the laws of the State of South Carolina.
By: _________________
Jacquelyn S. I Dickman
Attorney for South Carolina Department
of Health and Environmental Control
By: ___________________________
W. J. Bullock
By: ___________________________
Plant-Roberts Chemicals
By: ___________________________
James Lynn Werner
James H. Bratton, Jr.
Thomas M. Barton
Attorneys for Gaston Copper Recycling
And Southwire Company
By: ___________________________
James W. Orr
Carl H. Helmstetter
Attorneys form Lucent Technologies, Inc.
By: ____________________________
James W. Orr
Peter J. Nickles
Attorneys for Kerr-McGee Chemical Corporation
By: ____________________________
Timothy W. Bouch
Attorney for Clariant Corporation |
