USA v. Atlas Lederer Co, et al

Filing 935

CONSENT DECREE WITH DEFENDANTS ACE IRON & METAL COMPANY AND ALAN LEVINE - FINAL JUDGMENT Upon entry of this Consent Decree by the Court, this Consent Decree shall constitute the final judgment between the United States and Settling Defendants. The Court finds that there is no just reason for delay and therefore, enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58. Signed by Judge Walter H. Rice on 1/5/18. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified on 1/5/2018 (pb).

TN THE UNITED STA TES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
UNITED STATES OF AMERICA,

)
)

Plaintiff,

)
)

v.

Civil Action No. 3: 91-CV-309

)
)

THE ATLAS-LEDERER COMPANY, et al.,

)
)

Judge Walter H. Rice

)

______

Defendants.

)
)

CONSENT DECREE WITH DEFENDANTS ACE IRON & MET AL COMPANY
AND ALAN LEVINE

TABLE OF CONTENTS
I.
IL
111.
IV.
V.
VI.
Vil.
Vlll.
IX .
X.
XI.
XII.
XIII.
XIV.
XV.
XVI.
XVII.
XVIII.

BACKGROlJND ................................................................................................................ 3
JURISDICTION ................................................................................................................. 3
PARTIES BOUND ........................................................................................................... 4
DEFJNITIONS ........................................................ .......................................................... 4
STATEMENT OF PURPOSE ................................................................. ........................... 5
PAYMENT OF RESPONSE COSTS ................................................................................. 5
FAILURE TO COMPLY WITH CONSENT DECREE .................................................... 6
COVENANTS BY PLAINTIFF ....................................................................................... .. 7
RESERVATION OF RIGHTS BY UNITED STATES ..................................................... 8
COVENANTS BY SETTLING DEFENDANTS .............................................................. 8
EFFECT OF SETTLEMENT/CONTRIBUTION .............................................................. 9
CERTIFICA TJONS BY SE'n'LING DEFENDANTS ................................................... I 0
NOTICES AND SUBMISSIONS ................................................................................... 11
RETENTION OF JURISDICTION .......................................................... ........................ 12
INTEGRATION/APPENDICES ................................................................................... 12
LODGING AND OPPORTUNITY FOR PUBLIC COMMENT .................................... 12
SIGNATORIES/SERVICE ............................................................................................... 12
FINAL JUDGMENT ........................................................................................................ 13

ii

I.

BACKGROUND

A.
The United States of America (''United States"). on behalf of the Administrator of
the U.S. Environmental Protection Agency ("EPA"), filed a complaint and amended complaints
in this matter pursuant to Section 107 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. § 9607, as amended ("CERCLA"), seeking,
inter alia. reimbursement of response costs incurred or to be incurred in connection with the
release or threatened release of hazardous substances at the United Scrap Lead Superfund Site in
Concord Township, Miami County, Ohio ("the Site''), together with accrued interest.

B.
ln response to the release or threatened release of hazardous substances at or from
the Site, EPA undertook response actions at the Site pursuant to Section I 04 of CERCLA,
42 U.S.C. § 9604. In perfonning response actions at the Site, EPA has incurred response costs.
C.
The Court has held that Defendants Ace lron & Metal Company and Alan Levi ne
(''Settling Defendants") are responsible parties pursuant to Section J 07(a) of CERCLA, 42
U.S.C. § 9607(a), and arc jointly and severally liable for response costs incurred and to be
incurred at the Site, together with interest.
D.
The Settling Defendants that have entered into this Consent Decree do not admit
any liability to P laintiff arising out of the transactions or occurrences alleged in the complaint.
E.
The United States has reviewed the financial lnfom1ation submitted by Settling
Defendants to detem1ine whether Settling Defendants are financially able to pay response costs
incurred and to be incurred at the Site. Based upon this Financial Information. the United States
has determined that Settling Defendants have limited financial ability to pay for response costs
incurred and to be incurred at the Site.
F.
The United States and Settling Defendants agree, and this Court by entering this
Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith,
that settlement of this matter without further litigation and without any further adjudication of
any issue of fact or law is appropriate. and that this Consent Decree is fair, reasonable. and in the
public interest.
NOW, THEREFORE, it is hereby ORDERED, ADJUDGED and DECREED:
II.

JURISDICTION

1.
This Court has jurisdiction over the subject matter of this action pursuant to
28 U.S.C. §§ 133 land 1345 and 42 U.S.C. §§ 9607 and 9613(b) and also has personal
jurisdiction over Settling Defendants. Solely for the purposes of this Consent Decree and the
underlying complaints, Settling Defendants waive all objections and defenses that they may have
to jurisdiction of the Court or to venue in this District. Settling Defendants shall not challenge
entry or the terms of this Consent Decree or this Court's jurisdiction to enter and enforce this
Consent Decree.

,.,
.)

III.

PARTIES BOUND

2.
This Consent Decree is binding upon the United States and upon Settling
Defendant and their heirs, 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 Settling Defendants under this Consent Decree.
IV.

DEFINITIONS

3.
Unless otherwise expressly provided in this Consent Decree, terms used in this
Consent Decree that 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 Consent Decree or in any appendix attached hereto, the following
definitions shall apply:
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation,
and Liability Act. 42 U.S.C. §§ 9601-9675. as amended.
·'Consent Decree" shall mean this Consent Decree and all appendices attached
hereto. In the event of conflict between this Consent Decree and an y appendix, this Consent
Decree shall control.
"Day" or ·'day•· shall mean a calendar day. In computing any period of time under
this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal or
State holiday, the period shall run until the close of business of the next working day.
"DOJ" shall mean the U.S. Department of Justice and its successor departments,
agencies, or instrumentalities.
"Effective Date" shall mean the date upon which the approval of this Consent Decree
is recorded on the Court's docket.
"EPA'' shall mean the U.S. Environmental Protection Agency and its successor
departments, agencies, or instrumentalities.
"EPA Hazardous Substance Superfund" shall mean the Hazardous Substance
Superfund established by the Internal Revenue Code, 26 U.S.C. § 9507.
''Financial Information'· shall mean those financial documents identified in
Appendix B.

" Interest" shall mean interest at the rate specified for interest on investments of the
EPA Hazardous Substance Superfund established by 26 U.S .C. § 9507, compounded
annually on October I of each year, in accordance with 42 U.S.C. § 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 I of each year. Rates are available online at
https ://www.cpa.gov/superfund/superfund-interest-rates.

4

"National Contingency Plan" or "NCP" shall mean the National Oil and Hazardous
Substances Pollution Conti ngency Plan promulgated pursuant lo Section 105 of CERCLA,
42 U.S.C. § 9605, codified at 40 C.F.R. Part 300, and any amendments thereto.
"Paragraph" shall mean a portion of this Consent Decree identified by an Arabic
numeral or an upper or lower case letter.
"Parties·' shall mean the United States and Settling Defendants.
" Plaintiff' shall mean the United States.
" RCRA" shall mean the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992 (also
known as the Resource Conservation and Recovery Act).
"S ection" shall mean a portion of this Consent Decree identified by a Roman
numeral.
"Settling Defendants" shall mean Ace Iron & Metal Company and Alan Levine.
"Site'' shall mean the United Scrap Lead Superfund Site, encompassing
approximately 25 acres, located at 2117 South County Road 25A, in Concord Township,
Miami County. Ohio, and depicted more clearly on the map included in Appendix A .
"United States" shal I mean the United States of America and each department,
agency, and instrumentality of the United States, including EPA.

V.

STATEMENT OF PURPOSE

4.
By entering into this Consent Decree, the mutual objective of the Parties is for
Settling Defendants to make a cash payment to resolve their civil liability for the Site under
Sections 106 and 107 ofCERCLA, 42 U.S.C. §§ 9606 and 9607, as provided in the Covenants
by Plaintiff in Section VIII , and subject to the Reservations of Rights by United States in Section

IX.
VI.

PAYMENT OF RESPONSE COSTS

5.
Payment of Response Costs. Settling Defendants shall pay to EPA the principal
amount of $410,000. The payment shall be made within 30 Days after the Effective Date and, if
timely paid, shall include no Interest.
6.
Settling Defendant shall make payment by Fedwire Electronic Funds Transfer
EFT to the U.S. Department of Justice account, in accordance with instructions provided to
Settling Defendants by the Financial Litigation Unit ("FLU'') of the U.S. Attorney's Office for
the Southern District of Ohio after the Effective Date. The payment instructions provided by the
FLU will include a Consolidated Debt Collection System ("CDCS") number, which shall be used
to identify all payments required to be made in accordance with this Consent Decree. The FLU
wi ll provide the payment instructions to:
Alan Levine
Ace Iron & Metal Company

5

2515 Groveport Road
Columbus, OH 43207
[e-mail]
[phone]
Martin H. Lewis
Tucker Ellis
175 South Third Street, Suite 5201
Columbus, Ohio 43215
Martin.lewisrlt.tuckcrellis.com
[phone]
on behalf of Settling Defendants. Settling Defendants may change the individual to receive
payment instructions on its behalf by providing written notice to DOJ and EPA of such change in
accordance with Section XIII (Notices and Submissions).
7.
Deposit of Payment. The total amount to be paid pursuant to Paragraph 5
(Payment of Response Costs) shall be deposited by EPA into the EPA Hazardous Substance
Superfund.
8.
Notice of Payment. At the time of payment. Settling Defendants shall send notice
that payment has been made: (a) to EPA in accordance with Section Xlll (Notices and
Submissions), (b) to DOJ in accordance with Section Xlll: and (c) to the EPA Cincinnati finance
Center ("CFC") at:
EPA CFC by email:

[e-mail]

EPA CFC by regular mail: EPA Cincinnati Finance Center
26 W. Martin Luther King Drive
Cincinnati, Ohio 45268
Such notice shall reference the CDCS Number. Site/Spill ID Number 05H5, and DJ Number 90-

11-3-2798.
VII.

FAILURE TO COMPLY WITH CONSENT DECREE

9.
Interest on Payment. If Settling Defendants fail to make the payment required
by Paragraph 5 (Payment of Response Costs) by the required due date, Interest shall accrue on
the unpaid balance from the Effective Date through the date of payment.
l 0.

Stipulated Penalty

a.
Jf any amounts due to EPA under Paragraph 5 (Payment of Response
Costs) are not paid by the required date, Settling Defendants shall be in violation of this Consent
Decree and shall pay, as a stipulated penalty, in addition to the Interest required by Paragraph 9
(Interest on Payments), $500 per Day that such payment is late.

6

b.
Stipulated penalties are due and payable within 30 Days after the date of
the demand for payment of the penalties by EPA. All payments to EPA under this Paragraph
shall be identified as " stipulated penalties" and shall be made by Fedwire EFT to:
Federal Reserve Bank of New York
ABA = 02 l 030004
Account = 68010727
SWIFT address = FRNYUS33
33 Liberty Street
New York, NY 10045
Field Tag 4200 of the Fedwire message should read " D 680 I 0727
Environmental Protection Agency"
Each payment shall reference the CDCS Number, Site/Spill ID Number 05H5, and
DJ Number 90-11-3-2798.
c.
At the time of payment, Settling Defendants shall send notice that
payment has been made to EPA and OOJ in accordance with Paragraph 8 (Notice of Payment).
d.
Penalties shall accrue as provided in this Paragraph regardless of whether
EPA has notified Settling Defendants 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 in this Consent Decree shall
prevent the simultaneous accrual of separate penalties for separate violations of this Consent
Decree.
If the United States brings an action to enforce this Consent Decree, Settling
11.
Defendants shall reimburse the United States for all costs of such action, including but not
limited to costs of attorney time.
Payments made under this Section shall be in addition to any other remedies or
12.
sanctions available to Plaintiff by virtue of Settling Defendants ' failure to comply with the
requirements of this Consent Decree.
13.
Notwithstanding any other provision of this Section, the United States may, in its
unreviewable discretion, waive payment of any portion of the stipulated penalties that have
accrued pursuant to this Consent Decree. Payment of stipulated penalties shall not excuse
Settling Defendants from payment as required by Section VI (Payment of Response Costs) or
from performance of any other requirements of thi s Consent Decree.

VIII. COVENANTS BY PLAINTIFF
14.
Except as specifically provided in Section lX (Reservation of Rights by United
States), the United States covenants not to sue or to take administrative action against Settling
Defendants pursuant to Sections I 06 and l 07(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a),
regarding the Site. With respect to present and future liability, these covenants shall take effect
upon the Settling Defendants' payment of the amount due under Paragraph 5, which is due no
later than 30 Days after the Effective Date. These covenants are conditioned upon the

7

satisfactory perfonnance by Settling Defendants of their obligations under this Consent Decree.
These covenants are also conditioned upon the veracity and completeness of the Financial
Information provided to EPA by Settling Defendants and the financial. insurance, and indemnity
certification made by Settling Defendants in Paragraph 26. These covenants extend only to
Settling Defendants and do not extend to any other person.
IX.

RESERVATION OF RIGHTS BY UNITED ST ATES

15.
The United States reserves, and this Consent Decree is without prejudice to, all
rights against Settling Defendants with respect to all matters not expressly included within
Paragraph 14 (Covenants by Plaintiff). Notwithstanding any other provision of this Consent
Decree, the United States reserves all rights against Settling Defendants with respect to:
liability for failure of Settling Defendants to meet a requirement of this

a.
Consent Decree;

criminal liability;

b.

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 on the ownership or operation of the Site by Settling
Defendants when such ownership or operation commences after signature of this Consent Decree
by Settling Defendants;
e.
liability based on Settling Defendants' transportation, treatment, storage,
or disposal, or arrangement for transportation, treatment, storage, or disposal of a hazardous
substance or a solid waste at or in connection with the Site, after signature of this Consent
Decree by Settling Defendants; and
f.
liability arising from the past, present, or future disposal, release or threat
of release of a hazardous substance, pollutant, or contaminant outside of the Site.

16.
Notwithstanding any other provision of this Consent Decree, the United States
reserves, and this Consent Decree 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 Consent
Decree, if the Financial Information provided by Settling Defendants, or the financial, insurance,
or indemnity certification made by Settling Defendants in Paragraph 26, is false or, in any
material respect, inaccurate.
X.

COVENANTS BY SETTLING DEFENDANTS

17.
Settling Defendants covenant not to sue and agree not to assert any claims or
causes of action against the United States, or its contractors or employees, with respect to the
Site and this Consent Decree, including but not limited to:
a.
any direct or indirect claim for reimbursement from the Hazardous
Substance Superfund based on Sections 106(b)(2). 107, 111, 112, or 113 ofCERCLA, 42 U.S.C.
§§ 9606(b)(2), 9607, 961 1, 9612, or 9613, or any other provision of law;
8

b

b.
any claim arising out of response actions at or in connection with the Site.
including any claim under the United States Constitution, the State Constitution, the Tucker Act,
28 U.S.C. § 1491, the Equal Access to Justice Act, 28 U.S.C. § 2412 , as amended, or at common
law; or
c.
any claim pursuant to Sections I 07 or 113 of CERCLA, 42 U .S.C.
§§ 9607 or 9613 , Section 7002(a) of RCRA, 42 U .S.C. § 6972(a), or state law, relating to the
Site.
18.
Except as provided in Paragraph 20 (claims against other PRPs) and Paragraph 25
(Res Judicata and other Defenses), these covenants shall not apply in the event the United States
brings a cause of action or issues an order pursuant to any of the reservations set forth in Section
IX (Reservations of Rights by United States). other than in Paragraph 15.a (liability for failure to
meet a requirement of the Consent Decree) or 15.b (criminal liability), but only to the extent that
Settling Defendants' claims arise from the same response action or response costs that the United
States is seeking pursuant to the applicable reservation.
19.
Nothing in this Consent Decree shall be deemed to constitute approval or
preauthorization of a claim within the meaning of Section 111 of CERCLA , 42 U.S.C. § 9611, or
40 C.F.R. 300.700(d).
20.
Settling Defendants agree not to assert any claims and to waive all claims or
causes of action (including but not limited to claims or causes of action under Sections l 07(a)
and l 13 ofCERCLA) that it may have for response costs relating to the Site against each other
or any other person who is a potentially responsible party under CERCLA at the Site. This
waiver shall not apply with respect to any defense, claim, or cause of action that a Settling
Defendant may have against any person if such person asserts a claim or cause of action relating
to the Site against such Settling Defendant.

XI.

EFFECT OF SETTLEMENT/CONTRIBUTION

21.
Except as provided in Paragraph 20 (claims against other PRPs), nothing in this
Consent Decree shall be construed to create any rights in, or grant any cause of action to, any
person not a Party to this Consent Decree. Except as provided in Section X (Covenants by
Settling Defendants), each of the Parties expressly reserves any and all rights (including. but not
limited to, under Section 113 ofCERCLA, 42 U.S.C. § 9613), 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 Site against any person not a Party hereto. Nothing in this Consent Decree
diminishes the right of the United States, pursuant to Section 1l3(t)(2) and (3) of CERCLA,
42 U.S.C. § 96 I 3(t)(2)-(3), to pursue any such persons to obtain additional response costs or
response action and to enter into settlements that give rise to contribution protection pursuant to
Section l 13(t)(2).
22.
The Parties agree. and by entering this Consent Decree this Court finds, that this
settlement constitutes a judicially-approved settlement pursuant to which Settling Defendants are
resolving liability to the United States within the meaning of Section 1l3(t)(2) of CERCLA, 42
U.S.C. § 9613(t)(2), and are entitled, as of the date of Settling Defendants' payment under

9

Paragraph 5, due within 30 Days of the Effective Date, to protection from contribution actions or
claims as provided by Section l 13(f)(2) of CERCI~A, or as may be otherwise provided by law,
for the " matters addressed" in this Consent Decree. The "matters addressed" in this Consent
Decree are all response actions taken or to be taken and all response costs incurred or to be
incurred, at or in connection with the Site, by the United States or any other person, except for
the State; provided, however, that if the United States exercises rights under the reservations in
Section IX (Reservations of Rights by United States), other than in Paragraphs 15.a (liabi lity for
failure to meet a requirement of Consent Decree) or 15.b (criminal liability), the ·'matters
addressed" in this Consent Decree will no longer include those response costs or response
actions that are within the scope of the exercised reservation.
23.
The Parties further agree, and by entering this Consent Decree this Court finds,
that the complaint filed by the United States in this action is a civil action within the meaning of
Section l 13(t)(l) of CERCLA, 42 U.S.C. § 96l3(f)(1 ). and that this Consent Decree constitutes
a judicially-approved settlement pursuant to which Settling Defendants are resolving liability to
the United States within the meaning of Section 1 I 3(f)(3)(B) of CERCLA, 42 U.S.C.
§ 9613(f)(3)(B).
Settling Defendants shall, with respect to any suit or claim brought by it for
24.
matters related to this Consent Decree, notify EPA and DOJ in writing no later than 60 days prior
to the initiation of such suit or claim. Settling Defendants also shall, with respect to any suit or
claim brought against them for matters related to this Consent Decree, notify EPA and DOJ in
writing within I 0 days after service of the complaint or claim upon it. In addition, Settling
Defendants shal I notify EPA and DOJ within I 0 days after service or receipt of any Motion for
Summary Judgment, and within l 0 days after receipt of any order from a court setting a case for
trial, for matters related to this Consent Decree.
ln any subsequent administrative or judicial proceeding initiated by the United
25.
States for injunctive relief, recovery of response costs, or other relief relating to the Site, Settling
Defendants 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 brought in the instant case; provided, however, that nothing
in this Paragraph affects the enforceability of the Covenants by Plaintiff set forth in Section Ylll.

XII.

CERTIFICATIONS BY SETTLING DEFENDANTS

26.
Settling Defendants certify that, to the best of their knowledge and belief, after
thorough inquiry, they have:
a.
not altered, mutilated, discarded, destroyed or otherwise disposed of any
records, reports, documents, or other information (including records, reports, documents and
other information in electronic form other than identical copies) relating to its potential liability
regarding the Site since notification of potential liability by the United States and that it has fully
complied with any and all EPA requests for information regarding the Site and Settling
Defendants' financial circumstances, including but not limited to insurance and indemnity

10

information, pursuant to Sections I 04(e) and l 22(e)(3)(B) of CERCLA, 42 U.S.C. §§ 9604(e)
and 9622(e)(3)(B);
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 Infonnation was submitted to EPA and the time Settling
Defendants execute this Consent Decree; and
c.
fully disclosed any information regarding the existence of any insurance
policies or indemnity agreements that may cover claims relating to cleanup of the Site, and
submitted to EPA upon request such insurance policies, indemnity agreements, and information.
XIII. NOTICES AND SUBMISSIONS

27.
Whenever, under the terms of this Consent Decree, 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 Parties in writing. Except as otherwise provided. notice to a Party by email
(if that option is provided below) or by regular mail in accordance with this Section satisfies any
notice requirement of the Consent Decree regarding such Party.
As to OOJ by email:

[e-mail]

As to DOJ by regular mail:

EES Case Management Unit
U.S. Department of Justice
Environment and Natural Resources Division
P.O. Box 7611
Washington, D.C. 20044-7611
Re: DJ# 90-11-3-2798

As to EPA:

Sarah Stillman
Assistant Regional Counsel
Office of Regional Counsel, C- l 4J
77 W. Jackson
Chicago, Illinois 60604
Katherine Thomas
Remedial Project Manager
Superfund Division, SR-6J
77 W. Jackson
Chicago, Illinois 60604

As to Setting Defendants:

Alan Levine
Ace Iron & Metal Company
2515 Groveport Road
Columbus, OH 43207
alan@,aceiron.net
11

(6 14) 443-5196

Martin H. Lewis
Tucker Ellis
175 South Third Street, Suite 5201
Columbus, Ohio 43215
Martin.lewis1
a{tuckerellis.com
[phone]
XIV. RETENTION OP JURISDICTION

28.
This Court shall retain jurisdiction over this matter for the purpose of interpreting
and enforcing the terms of this Consent Decree.
XV.

INTEGRATION/APPENDICES

29.
This Consent Decree and its appendices constitute the final, complete and
exclusive agreement and understanding between the Parties with respect to the settlement
embodied in this Consent Decree. The Parties acknowledge that there are no representations,
agreements, or understandings relating to the settlement other than those expressly contained in
this Consent Decree. The following appendices are attached to and incorporated into this
Consent Decree:
"Appendix A" is the map of the Site.
"Appendix B" is a list of the financial documents submitted to EPA by Settling
Defendants.
XVI.

LODGING AND

OPPOl~TUNITY

FOR PUBLIC COMMENT

30.
This Consent Decree shall be lodged with the Court for a period of at least
30 days for public notice and comment. The United States reserves the right to withdraw or
withhold its consent if the comments regarding the Consent Decree disclose facts or
considerations that indicate that this Consent Decree is inappropriate, improper, or inadequate.
Settling Defendants consent to the entry of this Consent Decree without further notice.
31.
If for any reason this Court should decline to approve this Consent Decree in the
form presented, this Consent Decree is voidable at the sole discretion of any Party and the te1ms
of the Consent Decree may not be used as evidence in any litigation between the Parties.
XVII. SIGNATORIES/SERVICE

32.
Each undersigned representative of Settling Defendants and the United States
certifies that he or she is authorized to enter into the tenns and conditions of this Consent Decree
and to execute and bind legally such Party to this document.
33.
Settling Defendants agree not to oppose entry of this Consent Decree by this
Court or to challenge any provision of this Consent Decree, unless the United States has notified
Settling Defendants in writing that it no longer supports entry of the Consent Decree.
12

34.
Settling Defendants shall identify, on the attached signature page, the name and
address of an agent who is authorized to accept service of process by mail on their behalf with
respect to all matters arising under or relating to this Consent Decree. Settling Defendants agree
to accept service in that manner and to waive the formal service requirements set forth in Rule 4
of the Federal Rules of Civil Procedure and any applicable local rules of this Court, including but
not limited to, service of a summons.
XVIII. FINAL JUDGMENT
35.
Upon entry of this Consent Decree by the Court, this Consent Decree shall
constitute the final judgment between the United States and Settling Defendants. The Court finds
that there is no just reason for delay and therefore, enters this judgment as a final judgment under
Fed. R. Civ. P. 54 and 58.
SO ORDERED THIS~ DAY Of..}"-.>,~, 2017.

WALTER HERBERT RICE
United States District Judge

13

Signature Page for Consent Decree with Settling Defendants Ace Iron & Metal Company and
Alan Levine Regarding the United Scrap Lead Supcrfund Site

FOR THE UNITED STATES OF AMEIUCA:

_i_u/;7J

Dat~~

Karen S. Dworkin
Deputy Section Chief
U.S . Department of Justice
Environment and Natural Resources Division
Environmental Enforcement Section
P.O. Box 7611
Washington , D.C. 20044-7611

Alison C. M Gr g r
Trial Attoml.!y
Deborah M. Reyher
Senior Counsel
U.S. Department of Justice
Enviromnent and Natural Resources Division
Environmental Enforcement Section
P.O. Box 761 l
Washington. D.C. 20044-7611
mcgregor .al [e-mail]
202-514-1491

Benjamin C. Glassman
United States Attorney
Southern District of Ohio

Kevin Koller
Assistant United States Attorney
Southern District of Ohio
Federal Building, Ste. 602
200 W. Second Street
Dayton, OH 45400
[phone]

14

Signature Page for Consent Decree with Settling Defendants Ace Iron & Metal Company and
Alan Levine Regarding the United Scrap Lead Superfund Site

ON BEHALF OF EPA:

Marg· et . Guerriero
Actin
ector, Superfund Division, Region 5
U.S. Environmental Protection Agency
77 W. Jackson, R-19J
Chi . >
0604

Associate Regio Counsel, Region 5
U.S. Environmental Protection Agency
77 W. Jackson, C-14J
Chicago, IL 60604

15

··

Signature Page for Consent Decree with Settling Defendants Ace I.ron & Metal Company and
Alan Levine Regarding the United Scrap Lead Superfund Site

- ------

41 I{ Jo,1

Date"'

FOR ACE IRON & METAL COMPANY AND ALAN

--·- - LEVINE:-·-

Al~~fl

President, Ace Iron & Metal Company
25 J5 Groveport Road
Columbus, OH 43207
[e-mail]
[phone]

Agent Authorized to Accept Service ~if~

Martin H. Lewis
Tucker Ellis
175 South Third Street, Suite 5201
Columbus, Ohio 43215
[e-mail]
[phone]

16

---·---···-..-·-·

Consent Decree with Defendants Ace Iron & Metal Company
and Alan Levine in

United States ofAmerica v. the Atlas-Lederer Company, et al.,
3: 91-CV-309 (S.D. Ohio)

APPENDIX A

tllited Scrap Lead

Remedial Investigation
Section:

l

ReVision NO.:

Date:
PaCJe:

0

rebruary 19; 19e

2 of 14

(

FIGURE l .. l

GENERAL SITE LOr.ATTnN

Consent Decree with Defendants Ace Iron & Metal Company
and Alan Levine in
United States ofAmerica v. the Atlas-Lederer Company, et al. ,
3: 91-CV-309 (S.D. Ohio)

APPENDIXB

Appendix B to Consent Decree with Defendants Ace Iron & Metal Company and Alan Levine:
Financial Information

row

Document

I

Document
Date

2010-2012 Ace Con- -da
soii -ted_F na _ -1- - a -m ents _ _ _ _ _ _ _ _ _ _ _ __,__
_i- _nc-ia S t -te 2010-2012

2
3
4
5
6

2009-2010 Ace Iron & Metal U.S. Income Tax Returns
2009-2010 Alan Levine U.S. Individual Income Tax Return
2011 Ace Iron & Metal U.S. Income Tax Returns
2011 Alan Levine U.S. Income Tax Returns
Alan Levine Individual Ability to Pay Claim Financial Data Request Form

2009-2010
2009-2010
2011
2011
I 5/13/2013

7
8
9
1O
11

2012 and 2013 Ace Iron & Metal U.S. Income Tax Returns
2012 Alan Levine U.S. Individual Income Tax Return
2014 Ace Consolidated Financial Statements
2009-2012 Tax Returns for the Alan Levine Family Irrevocable Trust
Delegation and E-mail Authorization Letter from 1662 Williams LLC to PNC Bank

1

12
13
14

Resolutions for Extensions of Credit and Incumbency Certificate between PNC Bank
and 1662 Williams LLC
Ace Iron & Metal Financial Statements from Jan to July 2015
Delegation and E-mail Authorization Letter from Ace Iron & Metal to PNC Bank

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Date Provided

4/25/2013
4/25/2013
4/25/2013
9/24/2013
7/7/2014
5/15/2015
9/2/2015
9/2/2015
9/2/2015
9/2/2015
10/14/2015

8/4/2015
7/30/2015
8/4/2015

10/ 14/2015
10/14/2015
10/14/2015

8/4/2015
12/8/1992
6/16/2014
8/4/2015
2013-2014
2014
2013-2014
11 /6/2015
7/30/2014
7/30/2014
1/1/2012

10/14/2015
10/14/2015
10/ 14/2015
10/14/2015
11 / 5/2015
11 /5/2015
11 / 5/2015
11 / 10/2015
11 /10/2015
11 / 10/2015
11/10/2015

1/1/2012
1/1/2012
12/19/2013

11 / 10/2015
11/10/2015
11 / 10/2015

10/1/2013

Resolutions for Extensions of Credit and Incumbency Certificate between PNC Bank
and Ace Iron & Metal
Alan Levine Family Irrevocable Trust Agreement
Consent of Guarantor by Alan Levine
Amendment to Loan Documents between Ace Iron & Metal and PNC Bank
2013-2014 Tax Returns for the Alan Levine Family Irrevocable Trust
2014 Ace Iron & Metal U.S. Income Tax Returns
2013-2014 Alan Levine U.S. Individual Income Tax Return
Alan Levine Individual Ability to Pay Claim Financial Data Request Form
Loan Agreement between Ace Iron & Metal and PNC Bank
Security Agreement between 1662 Williams LLC and PNC Bank
Loan Agreement between 1662 Williams LLC and PNC Bank
Open-End Mortgage and Security Agreement between PNC Bank and 1662 W illiams
LLC
Term Note between Ace Iron & Metal, 1662 Williams LLC, and PNC Bank
Amendment to Loan Documents between Ace Iron & Metal and PNC Bank

2012 and
2013
2012
2014
2009-2012
8/4/2015

11 /10/2015

Amended and Restated Committed Line of Credit Note between Ace Iron & Metal and

29

I PNC Bank

30

Second Amended and Restated Committed Line of Credit Note between Ace Iron &
Metal, 1662 Williams LLC, and PNC Bank

7/30/2014

11 /10/2015

31
32
33
34
35
36
37
38

Amended , Restated, and Consolidated Loan Agreement between Ace Iron & Metal,
1662 Williams LLC , and PNC Bank
Amendment to Loan Documents between Ace Iron & Metal and PNC Bank
Documents supporting the Alan Levine Family Irrevocable Trust 2012 Tax Returns
Documents supporting the Alan Levine Family Irrevocable Trust 2013 Tax Returns
Documents supporting the Alan Levine Family Irrevocable Trust 2014 Tax Returns
Alan Levine Personal Financial Statement
Alan Levine Personal Financial Statement
Alan Levine Personal Financial Statement

7/30/2014
7/30/2014
2012
2013
2014
6/ 18/2014
11 /3/2015
61251
2015

11 /10/2015
11 /10/2015
11 /23/2015
11 /23/2015
11 /23/2015
12/28/2015
12/28/2015
12/28/2015

39

Amendment to Loan Documents between Ace Iron & Metal, 1662 W illiams LLC , and
PNC Bank

I 11 /30/2015

12/28/2015

I

I

Appendix B to Consent Decree with Defendants Ace Iron & Metal Company and Alan Levine:
Financial Information

40

Cognovit Promissory Note between Ace Iron & Metal and Mark H. Levine, Trustee for
the Alan Levine Family Irrevocable Trust

5/7/2012

12/28/2015

41
42
43
44
45

Subordination Agreement between Ace Iron & Metal, PNC Bank, and the Alan Levine
Family Irrevocable Trust
Release of Certain Rights Under the Alan Levine Irrevocable Trust
Letter from Martin H. Lewis to Alison McGregor
Summary of Plante & Moran , PLLC value of Ace Iron & Metal Co.
U.S. vs Atlas Lederer Company, et al., Affadavit of Larry Katz

5/28/2013
8/8/1998
6/24/2016
6/21 /2016
6/23/2016

12/28/2015
2/3/2016
6/27/2016
6/27/2016
6/27/2016

12/18/2012
2012-2015
2010-2016
2012-2016
5/31 /2016
2001-2009
2006-2015
2006-2015
5/9/2017
2015

6/27/2016
6/27/2016
6/27/2016
6/27/2016
6/27/2016
8/3/2016
8/3/2016
8/3/2016
5/9/2017
5/9/2017

10/18/2016
2016
5/4/2017

5/9/2017
5/9/2017
5/9/2017

46
47
48
49
50
51
52
53
53
54
55
56
57

I

Private Settlement Agreement between Alan Levine, Mark Levine, Barbara Altman ,
Kandi Dach, and Francine Marger
PNC Bank Account Statements for Ace Iron & Metal Co.
Merrill Lynch Statements for the Levine Trust
UBS Statements for the Levine Trust and others
TD Ameritrade Statements for the Levine Trust
Merrill Lynch Statements for the Levine Trust
UBS Statements for the Levine Trust
Morgan Stanley Statements for the Levine Trust
Letter from Martin H. Lewis to Judge Sharon L. Ovington
2015 U.S. Income Tax Return for Ace Iron and Metal Co.
Loan and Security Agreement between First Business Capital Corp. and Ace Iron &
Metal
2016 W-2 and Earnings Summary for Alan Levine from Ace Iron and Metal
1
Ace Iron & Metal Co. and Subsidiary_Consolidat~<!_E.inancial Re12,9rt for 2016 _______

2