03-12054. Notice of Lodging of Settlement Stipulation Under the Comprehensive Environmental Response, Compensation and Liability Act

Notice is hereby given that on April 30, 2003, a proposed Stipulation and Agreement in United States of America et al. v. The Ed Krewatch Partnership, et al., C.A. No. 01-660 (D. Del.), was lodged with the United States District Court for the District of Delaware.

In this action the United States has sought to recover costs incurred by the United States Environmental Protection Agency (“EPA”) in 1996-1997, under Section 104(a) of the Comprehensive Environmental Response, Compensation and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9604(a), at the Drum Burial Area of the Krewatch Farm Site. The United States settled its claims against The Ed Krewatch Partnership and Anthony Nero in 2001 and simultaneously sued Gardner Asphalt Corporation (“GAC”), Raymond T. Hyer, Jr. (“Hyer”), and Emulsion Products Company (“Emulsion”). The Stipulation and Agreement will resolve the liability of GAC, Hyer and Emulsion for their liability under Section 107 of CERCLA, 42 U.S.C. 9607.

The Krewatch Farm Site is located near Seaford, Delaware. EPA conducted a removal action at the Drum Burial Area of the Site to remove buried drums and soil which had become contaminated with hazardous substances. In settlement, Hyer and Emulsion have agreed to pay the sum of $300,000 over a five year period. Upon the District Court's approval of the Stipulation and Agreement, Hyer and Emulsion will receive a covenant not to sue from the United States. GAC will receive its covenant not to sue when the principal amount of the settlement and all accumulated interest have been paid. All defendants will receive contribution protection when the Stipulation and Agreement are approved by the Court. In the event Hyer and Emulsion fail to pay an installment, the United States has the right to seek entry of a judgment against them in the District Court, as soon as 10 days after the payment is due. The only defense to entry of judgment would be that payment has been made.

Upon the District Court's approval of the Stipulation and Agreement, the United States will move to dismiss a declaratory judgment action filed in the United States Bankruptcy Court for the Southern District of Florida, in which the United States has been seeking declaratory rulings that the discharge of debts GAC and Hyer received under a plan of reorganization confirmed in 1993 does not bar the United States from pursuing its CERCLA claims against them.

The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed Stipulation and Agreement. Comments should be addressed to the Assistant Attorney General for the Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to United States of America et al. v. The Ed Krewatch Partnership, et al., DJ No. 90-11-3-07224.

The proposed Stipulation and Agreement may be examined at the office of the United States Attorney, District of Delaware, 1201 N. Market Street, Wilmington, DE and at the Region III Office of the Environmental Protection Agency, 1650 Arch St., Philadelphia, PA 19103. During the public comment period, the Stipulation and Agreement may also be examined on the following Department of Justice Web site, http://www.usdoj.gov/​enrd/​open.html. A copy of the Stipulation and Agreement may be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611 or by faxing or e-mailing a request to Tonia Fleetwood ([e-mail]), fax no. [phone], phone confirmation number [phone]. In requesting a copy from the Consent Decree Library, please enclose a check in the amount of $7.25 (25 cents per page reproduction cost) payable to the U.S. Treasury. In all correspondence, please refer to the case by its title and DOJ Ref. # 90-11-3-07224.

Robert D. Brook,

Assistant Chief, Environmental Enforcement Section, Environment and Natural Resources Division.