8805_ROSCANS_2005

AW'A
NCDENR
NQml-1 CAROLINA 0EPARTMEtfl" OF
ENVIRONMENT ANO NATURAL RESOURCES
North Carolina Department of Environment and Natural Resources
Division of Waste Management
Michael F. Easley, Governor
Jim Coffey, Section Chief
Division of Waste Management
401 Oberlin Road
Raleigh, North Carolina 27605
Solid Waste Section
February 15, 2005
RE: Closure inspection at Ecusta Process Landfill
Transylvania County
Permit #88-05
Dear Jim:
William G. Ross Jr., Secretary
I conducted a closure inspection at the Ecusta Paper Process Landfill (Permit # 88-05) on the afternoon of
February 9, 2005. Final soil cover has been placed over the landfill, the site has been properly graded and
vegetative cover has been established on the landfill cap. Mr. Mike Cody will be providing documentation of the
final soil cover depths along with certification from his engineering firm to you.
I did observe a couple of leachate seeps on the landfill cap. Mr. Cody stated that if the seeps continued, he
would initiate corrective actions to resolve this issue.
Please let me know if further information is needed concerning this matter.
Sincerely,
~p£.P~
Waste Management Specialist
JP:mh
cc: Brent Rockett, NCDENR, Western Area Supervisor
Mark Poindexter, NCDENR Field Operations Branch Head
2090 US Highway 70, Swannanoa, North Carolina, 28778
Phone: [phone] \ FAX: [phone] \ Internet: www.enr.state.nc.us/enr
An Equal Opportunity\ Affirmative Action Employer -50% Recycled \ 10% Post Consumer Paper
\ I ' I ' ·~
I ~ I custa Business Development Center., llC
William J Ashbrook
Environmental Operations, Director
Phone: [phone] extension 233
Fax: [phone]
May 10, 2005
Jim Barber
Solid Waste Section
North Carolina Division of Waste Management
1646 Mail Service Center
Raleigh, NC 27699-1646
SUBJECT: Island Landfill Deed
Dear Jim,
One Ecusta Road
Brevard, NC 28712
PO. Box 1119
Pisgah Forest, NC 28768
Phone: [phone]
Fax: [phone]
I\ ' I 'I
{,
.. ...,
/
Attached, please find the deed to the closed out landfill. One was sent to Jim Coffey by
our legal staff right after the buy out.
Let me know if there is anything else I can do, Thanks.
Sincerely,
William J Ashbrook
.,....,
'(,
Environmental Operations, Director
. . .
.. , • ,!.
000183
Excise Tax: None (See Order attached as Exhibit B)
Tax Parcel Nos.: out of 8596-69-9440-000
( { day of ~uSf
111• and ~gi.rtered and
200_3. .,..__
000765
Mail after recording to: Robert W. Allen, Robinson, Bradshaw & Hinson, P.A., 101 North
Tryon Street, Suite 1900, Charlotte, North Carolina 28246
This instrument was prepared by: Robinson, Bradshaw & Hinson, P.A. (RWA), 101 N. Tryon
· Street Suite 1900. Charlotte. North Carolina 28246
_&
Brief description for Index: Ecusta Road
TIDS SPECIAL WARRANTY DEED made this relay of ~~<.A. (-·, 2003,
by and between RFS US, INC., a Delaware c:orporation ("Debtor"), as Seller and hereinafter
called the "Seller", and ECUSTA REAL ESTATE 2, LLC; a North Carolina limited liability
company, hereinafter called the "Purchaser". Purchaser's mailing address is: P.O. Box 1119,
Pisgah Forest, North Carolina 28768. The terms Seller, Debtor and Purchaser as used herein
shall include such parties, their heirs, successors, and assigns, and shall include singular, plural,
masculine, femfuine or neuter as required by context.
C-834621 v02_ 17215.00011
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000766
WIT NE S S ETH:
WHEREAS, voluntary chapter 11 petitions under the United States Bankruptcy Code
were filed by the Debtor and RFS Ecusta, Inc. ("Ecusta") in the United States Bankruptcy Court
for the District of Delaware (the "DE Bankruptcy Court") on October 23, 2002;
AND WHEREAS, the bankruptcy cases of the Debtor and Ecusta were transferred to the
United States Bankruptcy Court for the Western District of North Carolina (the "NC
Bankruptcy Court'') pursuant to an order entered by the DE Bankruptcy Court on or about
March 28, 2003, and such cases are now pending in the NC Bankruptcy Court under cac,e
numbers 03-10358 and 03-10360;
AND WHEREAS, the Debtor and Ecusta have been authorized to own, operate and
possess the property of the Debtor and Ecusta as debtors-in-possession by virtue of the
provisions of the United States Bankruptcy Code;
AND WHEREAS, after notices and hearings under the United States Bankruptcy Code,
· the Debtor has been authorized by an order of George R. Hodges, Bankruptcy Judge for the NC
, ll
Bankruptcy Court to sell the real estate described in this Deed, and all creditors and other parties
in interest in this estate have had proper, prior statutory notice of the consummation of the sale of
the Realty ( defined below), and there has been full compliance by the Debtor with the United
States Bankruptcy Code and the order of the NC Bankruptcy Court entered on July I, 2003, a
true copy of which is attached hereto as Exhibit B, which order of the NC Bankruptcy Court is
incorporated herein by this reference.
NOW, THEREFORE, in consideration of the premises, and the sum of $20,000.00, the
receipt of which by the Debtor is hereby acknowledged, and pursuant to the order of the NC
Bankruptcy Court identified above, the Debtor has and by these presents does grant, bargain, sell
and convey to the Purchaser all that real estate, including all improvements located thereon,
C-83462lv02_ 17215.00011 2
000:183
000767
which is located in Brevard, Transylvania County, North Carolina, (the "Realty"), and which is
more particularly described on Exhibit A attached to and incorporated into this Deed by this
reference.
This conveyance is made subject to the following:
1. All encumbrances and other matters both of record and not appearing of record,
except to the extent the Realty is free and clear of the same by virtue of the order
of the NC Bankruptcy Court identified above.
2. All unpaid ad valorem taxes, except as otherwise paid, agreed to be paid or
prorated at closing.
3. The condition that the Realty, which includes all improvements located on the·
Realty, is conveyed "as is, where is" and without any representation or warranty
of any kind concerning its physical condition.
TO HA VE AND TO HOLD the Realty, and all privileges and appurtenances thereto
belonging, to the Purchaser in as full and ample a manner as the Debtor is authorized and
" , empowered to convey. And the Debtor covenants with the Purchaser, in reliance on the order of
the NC Bankruptcy Court identified above, that the Debtor has not created or granted any
encumbrances or interest which would be adverse to the Purchaser, and the Debtor has done
nothing to impair such title to the Realty as the Debtor received; and the Debtor will warrant and
defend that title against the .lawful claims of all persons claiming by, under or through the
Debtor, except for the specific exceptions stated above.
/
C-83462lv02_ 17215.000! l 3
,4.' I
,.,
000183
000'"768
IN WITNESS WHEREOF, the Debtor has caused this instrument to be signed in its corporate
name as duly authorized by the order of the NC Bankruptcy Court identified above, the day and
year first above written.
RFS US, INc.··
£c ,(SEAL)
illan, Authorized Agent pursuant to the
Order of the Court attached hereto as Exhibit B
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
. This 8 ~ day of ~ , 2003, personally came before me Jim McMillan,
who, being by me duly sworn,say athe is the duly authorized agent of RFS US, INC., a.
Delaware corporation, pursuant to the Order of the U.S. Banlauptcy Court, entered on July 1, 2003,
and that said writing was signed by him, in behalf of said corporation, in accordance with the Order
of the U.S. Bankruptcy Court entered on July 1, 2003. And the said Authorized Agent
acknowledged the said writing to be the act and deed of said corporation.
My commission expires:
[NOT ARIAL SEAL]
ciwILv 6.~
Notary Public
S ' OFFICIAL SEAL
ary Public Nor!h Carolina
IREDEl::L COUNTY
LORETIA 8. MICHAEL
M Commission Expires May 19, 2007
is certified to be correct. Ibis instrument and this certificate are duly registered at 1h_da~~f~1,
1 time and in the Book and Page shown on the first page hereof. ~ ['{\. ~ '
A Deputy ,
cf)Ovt{liJ&_n,,~ County Register of Deeds
C-834621 v02_ 17215.000IJ 4
000:183 00076.9
EXHIBIT A
Being all that 39.44 acre tract or parcel of land located in Transylvania County, North
Carolina, shown as Lot 2 on that Special Subdivision plat entitled "Record Map of Lots 1 & 2
(Parcel 1-A)," prepared by Freeland-Clinkscales & Associates, Inc. ofN.C., dated June 24, 2003,
and recorded in Plat Cabinet _J_Q_, Slide 3o I in the Tr~sylvania County Public Registry.
C-83462lv02_ 17215.000ll 5
"· .. 000:183
000770 EXHIBIT B
UNITED STA TES BANKRUPTCY COURT
WESTERN DISTRJCT OF NORTH CAROLINA
ASHEVILLE DIVISION
~~~~~~~~~~~~). ·chapter 11
In re:
RFS ECUSTA me. and
RFS US IN"C.,
Debtors.
)
)
)
)
)
)
)
)
)
Case No.: 03-10360
Case.'.l'fo.: 03-10358 ·
W.:MENI OOERED ON JUL -1 2003
·J_ointly Administered·
~~~~~~~~~~~~)
SIXTH ORDER AUTHORIZING THE' SALE.DF SUBSTANTIALLY ALL
OF TRE DEBT.ORS;· ASSETS ·mi AND CLEAR OF ALL LIENS~ CLAIMs,
ENCID4BRANCES;°A.l'l:D0 OJmR.JN'.TE@S'.fS. A'.ND ~T FROM STAMP
OR SIMILAR TA.XES; AND THE CONSUMMATION OF. ALL:TRANSACTIONS
RELATED THERETO: PURSUAN13'TO:BANKRUPTCY.CODE SECTIONS . . .· . . ., .. ·, ... ·... . .... ..:.. ..... ,· .. . . ·.. .
105,363, AND 1146:AND BA.NlffiJJJ?TCY RIJLES 2002, 6-()04, AND. 6006 . . . . ·; .... : ' : ••i . . .
The above.-captioned debtors and debtors-in-.possessi'on (coilectiv.ely; the "Debtors"), . .. . . . . . .
having filed their fourth motion, dat~d June 3, 2003 ·(th,e .. "Bulk S:ale Motion,-'), pursuant to §§
. . ·.
. . . . .
105 and 363 of Title 11 · of the United. State~ Code (the "Bankruptcy ··code") for an order
authorizing the sale of substantially all ·of the Debtors' remaining ·assets fo New Tech
. . i
Environmental, Inc. or an entity to be formed by or an affiliate ofNew Tech. Environmental, Inc. ·
that is assigned the rights ofand assumes ihe·oblig~ons ofNew Tech Environmental, Inc. under
the Transaction Documents· ( as hereafter defined)° (the '.'Purchaser"),. free and-clear of all liens, . . . . . .
claims, encumbrances, and other interests, authorizing the Debtors · to · consummate all
transactions related to the above, and granting such other relief as is fair and equitable; and due
and proper notic~ ofthe Bulk Sale Motion having been given; and all responses to the Bulle Sale
,-.
Motion having been withdrawn, resolved, or ovenuled; and after due deliberation and sufficient
cause appearing therefor,
C-&28193v05_ lT215.000ll
.........
000183
IT IS HEREBY FOUND AND DETE~D THAT: 000771.
A This Court has jurisdiction to hear and determi.ne the Bulk Sale Motion and all
related matters pursuant to 28 U.S C. §§ 1_334 and 157. Venue of this proceeding in this district . . . .
is proper pursuant to 28 U.S.C. § 1409, · The Bulk Sale:.Motion constitutes a core proc~eding
pursuant to 28 U.S.C. § 157(b)(2)(A), (B), (N), and (0) ..
B. Proper, timely, adequate and sufficient notice of the Bulk Sale Motion and the
sale of the Assets {as here~fter defined) was provided pur.suant to Bankruptcy Rules 2002, 6004,
and 6006, and previous -orders of this Court, and such notice was rec1Sonable, sufficient and
appropriate :qnder the circumstances presented. · No other or furth,er_ notice of the Bulk· Sale
Motion or the entry·cfthis·Qrder is ~ecessary>.A reasorrahl,~ opporturiityto object, respond, or to
otherwise be h~ard.':i·egarding the relief requested in the Bulk Sale Motion has been afforded to
. . . . ·· .. · ··. . ·. . .
all interestedparties:
. C. The Debtors::are :the .sole and Jawful .owners .. cif all the Assets, and the Assets. . . . . . . . . .
pending the consummation of the. sale here~der, ·c~nstitute property ·of tb.e Debtors' estates
.-pursuant to§ 54I(a) oftheBankr.µptcy-Coqe ..
D. The Debtor_s ·have de;terniiried. ii:i. tlle exercise ·of their· business judgment, to: (i)
. . . . . .
sell all .of their right,. title, and .interest in and tcdhe Assets upon the terms and conditions set . . . . . .... · . . . . . . . .
forth herein; and (ii) .cons:u~te all. fransaetions contemplated herein and in the Transaction. . . . . . . . . . .
Documents (subject to the provisio~~ in the fourth thrqugh-sixth-de~retal paragraphs below). . . . . . .
E. The provisi,;ms. _of§§ 393
1
(!:,), 363(£), 363(m), and 363(0) of the Bankruptcy Code
have been complied with <m.d are appLicab_le as to the Assets.
F. The Debtors,. as -debtors in possession., {i} have full.corporate p·ower ~d authority
) : .
to execute ilie Transaction Docurneil:ts. and all other -documents contemplated by tl:te Bulk Sale
C-828193v05 _ 17215.00011 2
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000772
Motion with regard to the Assets, (ii) have an of the corporate power and authority necessary to
consununate the transacticms contemplated by the Bulk Sale Motion with regard to the Assets
and the Transaction Documents, and (iii) have taken all corporate action necessary to authorize
and approve the sale described in the Bulk Sale Motion and the consummation by the Debtors of --
the transactions contemplated thereby:
G. The Debtors have demonstrated sound business justifications for the sale in
accordance with the Bulk .Sale Motion and the Letter Agreement (as defined below) and the
other transactions and a<:tio~ contemplated by the Bulk .Sale Motion.with.-regard 'to the Assets
. .
pursuant to· g. 363(b) of the Bankruptcy ,Code; outside· of .a plan of reorganization, and it is a . . . ..
reasonable exercise of the.Debtors''. business. judgment to. execute, deliver and consummate the . . . . . . . . . .
Transaction Docume~ts. with t,he Buyer;and consummate. _the transactiqns contemplated by the
Transactio.n D9cuments.
. .
H Consummation of the sale of the Assets·; as :contemplated herein and in. the . . . . ··. . ·. . . . .
Transactio_n Documents is in :tht;: b~st interests of th~ Debtors,. their e~tates, .creditors; equity
-!;ecurity holders, and other parties in ~~re~ .. :
. . . .
I. The sale ofthei.Assets is properlyauthorized,under ail apP.licableprovisions:ofthe
Banlcruptcy Code, including without limitatio~; §§' ro5, 363, .and 1146 of the Banlauptcy Code. . . . ·. . ..
J. The sale of ·the· Assets C9nte~lated "herein. represents the ,highest or otherwise
best offers received for the Assets. followxng the ~ndrict of an open and complete sale process . . . . . . . . . . . . .
(including a public auction} reaso~bly calculated to yield the highest or otherwise best offers for . . . . . . .
the Assets.
K. The consideration provided by the· Purchaser for the Assets (i) is fair and
reasonable, (ii) {onstitutes reasonably· eqtuvalent. value, reasonable market value and fair
C-828193v05_ 17215.00011 3
ooo:1sioo·,,3
consideration for the Assets under the Bankruptcy Code and under the laws of the United States,
any state, tenitory, possession or the District of Columbia, (iii) is the highest or othernise best
offer for the Assets and (iv) vlill provide a greater recovery for the Debtors' creditors and other
. .
interested parties thari would be provided by any"other practically available alternative.
L. The transfer of the Assets to the Purchaser under the Transaction Documents will
. . .
be a legal, valid, and effective transfer of the Assets and will, upon the occurrence of the Closing
(as hereafter defined); vest in the Purchaser an right, title and interest .of the Debtors in the
-Assets free and clear of.all liens, claims, encumbrances, and other interests, including, without . . . . . . .. . . . .
limitation, mortgages,: security interests, pledges~ liens~ replacem~nt li~ns, judgments, demands,
encumbrances; or · charges of any kµrd' -or nature, :if any, including,· but not Emited to, any
restriction on the transfer, receipt of mccn:ne. or other· exercise--of any attributes. of ownership . . . ·.. . . ' :'. . . . .
(collectively,. "Liens"), and all rlebts arising in )my way· iii. connection with any. acts of the · . . . . .. , '•. . ·. . . . . . .
D~btors, _ claims (including but not limited t,0· ·"sla:ims''. •as.that _tenn is d~fi-ned in the B_ankruptcy ·
Code), obligations, demands, guarap.ties, interests,".and matters .of•any. kind and nature, whether . . . . . . .. . . : : . . . . . . . .. •. ·.: . : .·. . .... . ..· . . . . .
, ansmg prior to or subsequent to the. commencein~nt" of tbes.e Chapter 11 cases, and wl:iether . : ·.· . . . . .· . .
imposed by agreement, understanding, law; equity, br otherwise, ·including, but not limiied to, . . . . . ~ . .
. . .
· those relating to taxes arising U?,d~r or_ out of, in: co~ectio11 ,with, or in any way relating to the
operation of the Debtors' busin.esses prior to C~·osing (collectiveli ,"-Claims"), with all such
Liens and Claims, and any and ail ~ther interests to attach to.the net proceeds of sale (the "Sale·
Proceeds") of, and with the •same for~e, :effect ;~d priori~-~: such Liens, Claims and other
interests had against, the Assets, and . holders· thereof shall ·be permanently. enjoined from . . .. . .
asserting such against the Assets and-the Purchaser and shall .look solely to the Sale Proceeds.
C-&28-l93v05_ ITI15.000U 4
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0001.83
000774
As a condition to purchasing the Assets, the Purchaser requires that the Assets be
sold free and clear of all Liens, Claims and other interests and that it shall have no liability
whatsoever for any obligations of or Claims against the Debtors, except as may be expressly
permitted in the. Transaction Documents.. The Purchaser would not enter into the Transaction
Documents and consummate the transactions contemplated by the Bulk Sale Motion., thus
adversely affecting the Debtors, their estates, and their creditors, if the sale of the Assets to the
Purchaser was not free and clear of all Liens, Claims and other interests of any kind or nature
whatsoever, or if the Purchaser :would, or in the future could? be liable for any such Liens or
Claims and if the transfer oftbe Assets could :not b_e:m.';1-de under § 363 ofthe Bankruptcy Code.
N: · The transfer of the Assets to the Purchaser:free and clear of all Liens, Claims and
# ' ·•• :: . •· • • . • .
other interests .will not result in any W1duebutd.e1:1 pr_ prejudice. to any holders of any Liens; . . . . . . . . . . . . ·.
Claims or o~~r· interests since all ~ch Liens'anci Claims :of any kmd or nature whatsoever shall
. . . ' ~ . .
attach to the Sale:Proceeds in the ordir'oftheir "priority, withthe,same validity: force and effect . . . . . . . .. . . . . · ..
:which. they now hav,e as against tl:i_e.A.ssets; s;bjectto: any claims and· defenses the Debtors or
,~other parties may possess with re.spect tliereto~ ..
0.-The Letter Agreement was· negotiated, proposed and:.agreed to by the Debtors and
the Purchaser as parties thereto without . collusion, in good fai~ and from arm)s-length .
. . ....... · .. ; . . . . . . . .
bargaining positions. The Debtors ·and the Pu;chaser have at -all t~es. acted in good faith and in
. .• . . ·.
accordance with applicable-law. The Purchaser is a g9.0d faith:purchaser for value with respect . . . . _:_ . . : •, .
to the Assets under§ 363(m) of the l3ankruptcy. ~ode and will be acting in good faith p~suant to
§ 363 (m) of the Banlcruptcy Code in closing the trans~ction. cqntemplated · by the Bulle Sale
Motion ·~d the Transaction Docu~ents fu accordance therewith .. By reason of the foregoing,
upon Closing, the Purchaser will be e~titled to all of th~ protections afforded under § 363(m). . . . . .
C.&28l93v05_ 17215.00011 5
000183 000775
Neither the Debtors nor the Purchaser has engaged in any conduct that would cause or permit the
Transaction Documents to be voided under § 363(n) of the Bankruptcy Code. The sale of the
Assets approved by this Order is not subject to avoidance pursuant _to§ 363(n) of the Bankruptcy
Code, and the consideration provided by the Purchaser for-the Assets under the Transaction
Documents (including, upon its ex,ecutioi:l, the Asset Purchase Agreement) shall be deemed to
constitute reasonably equivalent value and fair consideration.
P. Other. than with ·respect to· th~ .AsS1.1med Liabilit1.es (as defined below), the
Purchaser shall not by virtue of this Order or the Transaction Documents or the transactions . . . . .
. . . . .
contemplated hereun_der or thereunder, be deemed to have "successor'_' liability or responsibility . . . . . . . .
for clami·s against or 9bligations :Of Debtors ~sing prior to .or as· a re~t of.the purchase and sale . . ..... · . . . . . .
of the.Assets her~uilder.
Q·. . The saJe of the Assets to the Purchaser will nlaJCl·IDiie the value of the Debtors'
estates and i~ in contempfation":of the implement?-~on o:f_-a plan ,of liquidation and necessary to
.the confirmation and consu.mrnation of ap.y. .such plan. A;CO;illllgly, the sale of the Assets shall . . . . : .·.· ··. . . . . . .. . . . . .
·'be deemed a sale "under ,a plan;_, within the -~ean.ing:·oC§: 1146(c) of the:Bankruptcy Code arid .. . .: ·' .. . . .
shall "be exempt from any and ,all stamp t~es, ·T~cb.:rding 'faxes~ and similar. taxes, including
withoutli~tation any real estat~ transfer~ ~cl any re_alty property tfunsfer tax, although such
sales do not ~nstitute a sub rosa pl~:ofreorganization: The Asset-Purchase Agreement is not a . . . . . : : ; . .
sub rosa chapter 11 plan for w.iuch ~pproval .has b~en :s9ught :without the protections that a . . .. ·: . ', . .
disclosure statement would afford arid is not in vi~lation of creditors' ~d equity security interest . . . . : . .
hqlders' voting rights ..
R. The relief requested in this Bulk Sale Motion is reasonable and in the best
,,,..
interests .of the Debtors' estates and creditorsi
C-S28193v05 17215.00011 6
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000776
NOW, THEREFORE, IT IS HEREBY:
ORDEREI) that the Bulk Sale Motion is granted; and it is further
ORDERED that all responses to the Bulk Sale Motion have been withdrawn or otherwise
resolved, or are hereby oveD11led; and it is further
ORDERED that the letter .agreement (the "Letter Agreement"), to be entered into by and
among the Debtors, the Purchaser, and the Debtors' secured.lender in these cases (the «Lender"),
a ·substantially C()mplete draft .of which was· attached to the Bulk Sale Motion as exhibit A, is
hereby. approved; and it is· further
ORDERED that the DebtOl:S ~e authorized to negoti~e and ~X:ec.ute an asset purchase
. . .
~greement (the "Asset Purchase :Agre'ement,'?· ~d together_ with" .the Letter Agreement, the .
"Transaction Documents"). with. ~he Purchaser·' setting forth the· definitive. terms of this . sale,
subject only to the pr,ior written .conseJ,J.t 6f tbe Lender and the official ·c~minittee ·of unsecured .
creditors (the "Committee"), to· the . fo~ and substance· thereo{ · .provid~ however that the
Deb.tors shall provide· the union representing. the Debtors' former hourly. employees .("PACE")
,. -~ . . .. . .:.· . . . . . . . . .... · .
, . and the Bankruptcy Administrator for ·th_e '.Western District· of1\f ¢rth Carolina (the "Banlauptcy .
Administrator''} notice and three busines.s days' oppoi:turiify to object to the form of the Asset. . . ...
Purchase Agi"eement prior to its exerutio~; and it is further
ORDERED that if the: ·bebt~rs. arid · the Purchaser negotiate and · execute an Asset
Purchase Agreement, and if the Committee. and. the Len.der expressly consent in writing to such . . . . . .' . . . .
Asset Purchase Agreement prior to its·e~ecutidn, and if PA.CE cµ14 the"J3ankruptcy Administratqr
. do not timely file an objecti?n to_ such Asset Purchase Agreement priorto its execution, then the
. Asset Purchase Agreement ·is h_ereby deemed to be approved ·as. of its execution, and will be
' "
C-828193v05_ l7215.00011 7
000183 000777
effective and binding on all parties upon execution thereof without further. order of this Court;
and it is further
ORDERED that in the event that · the Debtors, the Purchaser, the Committee, and the
Lender do not agree on the form and substance of an Asset Purcha.se Agre.ement, or PACE or the
Banlauptcy Administrator timely. files an objection to such Asset Purchase Agreement prior to
. .
the execution thereof, this Court will schedule. and conduct an expedited bearing thereon at the
earliest date available on the ·Court's calendar; and it is further
. .
ORDERED that all ·of the terms, conditions, actions, rights, remedies, and obligations . . . ' . . . . . . . . .
coi:ltruned 1n each and any: of the Transactio~ Documents {incl~ding; upon·. its execution, the
Asset Purchase Agreement), :including bufnot. limited to. t;he funding obligation;s related to the . . ·. ·. .. . . •' . . . . . .·
Debtors' operations, the .sale of c~rtain of the D.ebtors' as~~t~, the use -0f cash :collateral, and the
access .to the D~bto:rs' facilities, '.is .hereby approved and is b1~ding .on a] parties thereto; and it is . . . . . . . . .. . . . .
further
ORDERED that Tim M;~M3.U~n i~ hereby. authorized··to. execute. on beha~f of the Debtors
~ .
. the ·Transaction Documents and all other .documents necessary to consummate the transaction
authorized· in this Order; and it 1s further .. .
ORDERED that so lo~ .a~ he acts in accordance with the terms of tlns Order and· in the . •. .. ... · . . . . . ..... .
absence· of gros~ negligence ·or v,viifull misconduct, Jim McMillan (a). shall not be subject to any
personal liability for . any claims arising. from his participati~n in the consummation of the . . . . . . .·. .
transaction authorized in this ·orderJb) ·i~. hereby released by .the Debtors,. TBCC, the Committee . . . .
and . the Purchaser from .any such 1ia:bility; and ( c) no party may. ~alee a claim against Jim . . . : . . .
McMillan for any act -or omission arising in connection with his participation in the
consummation of the transaction authorized in this Order: and it is further . . . ' .
C-828193v05 _ 17'215.000ll 8
0001.83
000778
ORDERED that within one business day of the entry of this Order, the Purchaser shall
pay $50,000 as a good faith deposit (the "Deposit"), such Deposit to be treated in accordance
with Paragraph 6 of the Letter Agreement; and it is further
ORDERED that to the extent the PUrchaser identifies one or more of the Debtors'
executory contracts and/ot unexpired leases· (the "Leases") to be purchased and · assigned
pursuant to the Transacti<Jn D~cuments (including, upon its · execution, the Asset Purchase
Agreement) and hereto, the· Debtors shall promptly· fil~ a motion pursuant to § 365 of the
Bankruptcy Code for authority to assume· suqh Leases and _assign: them to the Purchaser, and the
Purchaser will be respons1bl~ for. all cure ·costs· associated therewith; and itis further
. . . .
ORDERED that on or before.the ~I9sing ,of the :sale{tb.e' "Clo~ing")~ the Purchasei:: shall
pay to the Debtors ·in cash, certified check; wire transfer, ot .other immediately available funds .
acceptable to the Debtor~, ·the ~chase Price (as defined b,~l()w);·~d it is further
. ORDERED that _the Debtors ~e authorized to 'sell .t; the Purchaser all· of the Debtors'
remaining assets, .except for th~se ass~ti specifically identifi:ed in the: Truisaction Documents as . . . .. : .·· . .. . . ..
~ .
excluded therefrom., UAS Is,· WHERE IS,.'' ·without recourse ~d without any representations or . . . .· . : . .. . .
warranties (except ~s may be set forth in this Order o~the T~ansaction Documents), for the price . . . . . .
(the "Purchase. Price"). of $1:3' milli'~~ subj_ect to· a pot.ential .Purchase Price 'reduction not to
exceed $50,000, as identified in: the Transaction Documents, and to ·consummate the transactions.
contemplated in the Transaction Docu.ments.(iricludin& upon its execution, the Asset Purchase . . . . . . . .
Agreement) with the proceed:s to···be. ·paid by Pur.chaser at Closing· to be deposited into the . . . . . .
Debtors' Account No. 001952624378 at First Citizens Bank' and.it is further . . . . . . . . . . ' .
ORDERED that the D~btors are, without any further corporate authorization., authorized / .· . . .
to execute and deliver, and empowered to. perform. under, consummate and. implement, the
C-828193v05 17215.00011 9
000183 000779
Transaction Documents (including, upon its execution, the A.sset Purchase Agreement), together
with all. additional instruments and documents that may be reasonably necessary or desirable to
implement the Transacti9n Documents (including, upon its execution, the Asset Purchase
. . -·· . .
Agreement),. and to take all further actions as may tie necessary for the purpose of assigning,
transferring, granting, conyeying and. conferring to the Purchaser or reducing to the Purchaser's
possession, the Assets, · or as i:nay be. necessary or appropriate to the performance of the
obligations as contemplated by the Transaction Documents (including, upon its execution, the
. . . . ·. .
Asset Purchase Agreement); and it is further ,' . . . . . .
ORDERED that except.as expressly set forth in th¢ Bµlk Sale fyfotion, the Transaction . . . . . . . . ..
Documents (including, upon: its· execution, the Asset Purd1ase Agr~em;nt) or this Order, the .
. •. . . . . . . . . . . . . . . . ~. . . . .
Purchaser as.surnes no employee liab~liti~; tliat ·arose prior to Cl~sing, ~d~qing any acmied but . . . . . . .. ·.· . . . . . .·· . ..· : . :
unbilled .liabil~ti~s; and it is :fi.irtb.er ·
ORDERED that the transfer of the Assets to the:Purchaser .purslliint.to, ~d subjedto the . . . . ··. . . . . . .
terms-of, the. Transaction Documents :(including; upon: ·its .execution, the Asset Purchase .... :-. . . . . . . . . .
·Agreement) shall constitute a legal, valid mtj effective tran;fer of tlie Assets, and shall, upon the . . . . . . . . . . . . . . . . .
occurrence ofthe Closing/Ve~ in tl;l~ ~chaser .pursuant to.§ .363(f). of the B~ptcy Code all -. . ·. . . . . .
right, title and interest of the iD~bto;s .fo. a:n_d to ·the ·applic:able A:5sets to be acquire(kby such
Purchaser free and clear of all Liens, Claims and pther . interests of any kind or nature . . . . . . .
. what~ever, with an such Liens, Claimi and ·other. :inte~~sts to atta~h to. the Sale Proceeds in. the . . . . .· . . . . . . .. •. . . .
order of their priority, with the same.validify;.force and e~e~ which they now have as against
the Assets, subject to the terms·ofthis Order and the:.rights, daims, defenses, and objections, if . . . ' . . . . '. .
any, of the Debtors and all interested parties :with resp.ect to such Liens, Claims, and other
. ,r
interests; and the holders of such· Liens, qai~s, and other interests shall be. permanently
C-828193v05_ 17215.0001 l 10
.. ', 000183
. 000780
enjoined from asserting such against the Assets or the Purchaser and shall look solely to the
proceeds of sale; and it is further
ORDERED that this Order (a} shall be effective a:S adetermination that, on the Closing
date with respect to. any Assets, and subject to the occurrence of the Closing, all Liens, Claims
and other i:n,terests of any kind or nature whatsoever existing prior to the Closing as to the Assets
. . . . .
. .
transferred' on such Clo.sing date pursuant to the. Transaction Docu~ents (including but not
limited to any claims under any applicable revenue; pertsio:n, ERJSA, tax, labor, environmental
. . . . . . . .
or natural resource law, rule or r~&Ufation, or any products .liability law) have been
unconditionally released and terrninatycl as to such .Assets; and that. the. conveyances· described
herein have been effected, and (b) shall be binding t.ipbn ·~d ;hall govern the acts of all entities,
including without limitation, .all filing,, cigents, filing : officers,: title . agents, title companies, . .. . ··. . ·. . . .
recorders of ·mortgages~ recorders:. 6£ deeds, registrars . of 'deeds, administrative ·agencies,
governmental . departments, secretaries of state, .. federal, state,. and' local officials, and all other . . . . ... ·. ·.. . .
persons and ·entities who. may b.e require.cl by operation of1aw, the .duties of their office, or .
~ . . . ·. : . . . . .
con~act, to accept, file, register or otherwise·record or re1¢ase.any doc;tJm~nts or instruments, or
who may. be required to report ~r insure any title o~ state ~,f title in ~r to azjy of the Assets; andit
is fQrther
ORDERED that except as, expre~sly permitted or otherw1.se-specifically provided. for iI?-. . . . . .
the .Transaction Documents (~cludi~g; upon its.·eiecutio11;. the. As.set Purchase Agreement) or . . . . .·· . . .
this Order in respect of the Transactio~ Documents ·{including, upo~· its executjon, the Asset . . . . . . .. .
Purchase Agreement)' or the .Assets to .be. transferred. by: the,Debtors·, the Purchaser shall have ~o . . . . . . .. ·. .
liability or responsibility for any liability ·or other ·obligation of the Debtprs arising under or
I . • . . ,'
related to such Assets and, to the extent allowed by law; the Purchaser (and its officers, managers
C-828193v05_ 17215.0001J 11
000183 000781
and members) shall not be liable for any other claims against. the Debtors or any of their
predecessors or affiliates, and the Purchaser shall have no suc~essor or vicarious liabilities of any
kind or character whether lmown or unknown as. of· the Closing under the .Transaction
Documents (including, upon its execution, the Asset Purchase Agreement), now existing or
.hereafter arising, whether fixed orcontingent, with respect to tpe Debtors or any obligations of
the Debtors, other than the Assumed Liabilities, . arising prior to the Closing under the
Transaction Documents . (including, upon its execution, the Asset Purchase· Agreement),
including, b~t not limited to, any liabilities under any reven,u.e,· pension., ERJSA, ·tax, labor,
envirorunental 'Of natural resource law, rule or regtilatio~ or any products· liability. Iaw, arising,
accruing,: or payable 'Under~ oi.li of, in connection with, oi in any ~ay relating to the·operation of . . . ..· . . . . . .
the Debtors' businesses prior to th~ Closing; and it is further. · ·
· . ORDERED that tbis Court retains .and sba.il hc!:ve ·exclusive jurisdiction ·to endorse and . . . ·, . . . . . . . . .
impleniei:rt the terms apd. provisicms. of this Order, th~ Transal~tion.Docul'Ilents, all amendments
thereto, any waiv.ets arid ·consents the;eunder; and each of the. agreements ·executed in connection
. . . . . . . . · ...... ' . . . .· .
~ . . . .. .
'therewith in:all respects or the rights and duties ofthe . .parties hereunder or thereunder or any .· . .·. . . . ... ' . . . . . . . . . .
. .
.issues reiating to any of the. fC>regoing, and. to: reso{ve . any. d.tspute co.ncerning any of the
·foreg9ing, including, but· not limited to,. retaicing'jajsdicti~n 'to (a) interpret· tbe terms, . ~ . . . . . . . . .
conditions and provisions . of any·. of the foregoing, · (b) . comp~l · delivery ~f the Assets to the . . . . . . .
Purchaser or order the specifi~ performanc~ of any act :t~: be ·.P¢rfomiect' by the Debtors or any . . . . . . . .
other ·party to consummate the sal.e,. and (c) co~p.~l .'deliy~ry' of the Purchase Price or
performance of otherobligati~ns owed to the Debtors by the Purchaser;:an<l it is further
. ORDERED that subJectto Closing and ·consummation of the transaction, each and every
)
federal, state and local governmental ~gency, rncording ~ffice or department and all o~er parties,
C:828193v05 _ 17215.00011 12
000:183
OO(Y782
person or entities is hereby directed to accept this Order for rece>rdation as conclusive evidence
of the free and clear, unencumbered transfer of title to the Assets conveyed to the Purchaser; and
it is further
ORDERED that subject to Closing and consummation of the transaction, the provisions
ofthis Order authorizing the sale of the Assets free and clear of Liens, Claims and interests (with
such Liens and Claims to attach to the proceeds of the sale of the Assets as provided in this
Order) shaI1 be self-executing, and neither the Debt.ors, the Purclia.$er nor any other party shall be
required to execute or file releases, iermination statements, assignments, cancellations, consents
or other instruments to effectuat~-, consummate and/or implement the provisions hereof with
respect. to the sale; provided, :however,. that this Para,g;raph shall ~ot: excuse s~~h. parties from . . . . . . . .
performing any-and.all .of.the respective obligatioqs under th~ Tr~action Documents~ and it is
~ . . . . . . .
further
ORDERED t:pat if any person :or entity that ·has .filed financing statements, mortgage, . . . . . . ·. . . . . .
mechanic's :liens, !is pendens; or other documents or ~gree!llents evidencing Li~ns or Claims . . . . . . . . .
-~inst_ or in the Assets -~hall not pzve; d~livered. to the ·Debtors .prior to. the Closing date, in
. . .
proper form for filing arid executed. by. the appropriate. parties, reieases, .termination statements, . . . ·. . . . •; . . ·: .
assignments, ·cancellations,. consents; instruments of satisfaction," or such: other instruments to . . . . . . . . . . .. . . ,• .
effectuat"e, c6ri.summ~te. arid/or ;i~plement the provisions he.reof with respect to the sale with
regard to all Liens: and Claims that. the pers·on or entity has with respect to -the· Assets or : . . . . . . . . . .
otherwise, the Debtors or the Purchas~r :are hereby authorized and directed a:t Closing to file with
any federal, state or lo~ai" goyernrnental agency, recording· office or d:epartment and all other
parties, persons. or entities this-(?rder. as conclusive evidence of the free and clear, unencumbered
_,/'
C-828193v05 _ 17215.00011 13
000:183.
000?83
transfer of title to the Assets conveyed to the Purchaser. to effectuate, consummate and/or
implement the provisi.ons hereof with respect to the sale of the Assets; and it is further
ORDERED that consummation of the Transaction Documents (including, upon its
executio~ the Asset Purchase Agreement) and the transactions contemplated th,erein and thereby
do not effect a de facto merger or consolidation of any Debtor and the Purchaser or result m the
continuation of the Debtors' business under the Purchaser's control. The Pllrchaser is not the
alter ego of, a successor in intc:rest ·to, or a continuation of:the Debtors, nor is the Purchaser
otherwise liable for the Debtors' debts and obligations, unless specifically provided for in the
Transaction Documents or· pur~ant to this Order;· and \t is firrther . ·
ORDERED that all· entities that. are presently, or OD· .the Closing. date may. be, in. . . . .. . . . . . . ~ .
. ·.
possession of some or all of the· Assets are. hereby:d.irected to ·surr~der.pcissession of the Assets . . . . . ; . . . .
_ to the Purchaser on the CI'.osrng da:t; for s~ch:Assets; and: it is further .
ORDERED that. nothing .. contained. in. ariy. plai:i. of .reorganizatioil (or _liquidation).
· confirmed in tJ;i,ese cases.·or tlie order of confinnatlOil··COnfirming ani such plan shall conflict.
. . . . . .· . . . : . .
)l
with or derogate from the . proyisions' . of· the Transacti6n Do~ents. (~duding, upon its
execution, the Asset I>urcha.se Agree:m,e11t)'or th~ terms of thi~ :Order;. and it is further
ORDERED that the revetsal or. modificati~~ on. appeal. of·the ~thorization provided
; . ·. . . . . . . . . . . . . . .
herein to consi:tmmate the sale of any Assets shall not aff e¢t the val1dity of the sale of such
Assets to. the Purchaser; .unless such: authorization is dU:ly stayed pending BU~h appeal priodo the . . .. ·.. . . . . : . .
Closing date with .respect t6· such.Ass.ets;· and it is further
ORDERED tha(norun.tb~t~ding anything herein to the contrary, nothing herein shall in
any way affect or diminish any ·rights. of the Debtors or any successor thereto (including· any ./ ...
chapter 11 or chapter 7 tnistee) with respect. to obligations of the Purchaser' arising under the
C-828193v05_ 17.215.000ll 14
· . ..__
. .,
0001.83 ooo,84
Transaction Do91mients (including, upon its execution, the Asset Purchase Agreement) or this
Order. The terms and provisions of the Transaction Documents (including, upon its execution,
the Asset Purchase Agreement) and this Order shall be binding in all respects· upon, and shall
inure to the benefit of, the Debtors, their estates, and their creditors, the Purchaser and their
respective affiiiates, successors. and assigns arid· any affected third parties .(including, but not . . . . . .
limited to, all persons asserting Liens or Claims in the A,Eisets to be sold to the Purchaser),
notwithstanding any subsequent appointment of any trustee(;,) under any chapter of the
. .
Bankruptcy Code, as to whic~ trustee(s) such.terms and provisions likewise: shall be binding; and
it is further
ORDERED iliat · in furihe~ce of the, foregping,jn the_ event of the. conversion of the
. . . . . .
Debt~rs' cases, any Chapter' 7. trustee(s)°shaiL be _obligated to perform u~der the Transaction . . . . . . . .
Documents (including, up_o:ri its ~xecutio~ theAssefPurcb.iise Agreement) to permit the Debtors'
· estates to realize the full · value of the·· sale. to· ·the :pt.ircb~er and to permit the Purchaser to ·
consummate the transactio~ provided, -in _and . cont~mplated. by the· Trwacti9n Documents . . .
, (including, upon its execution, the Asset Purcha$e · Agree.rrientt and the Transaction. Documents .. ·. . . ; . .
(includin&, upon its execurio~ the M,set Purchase: Agree_ment) '.shall not be executory contracts
that such trustee( s) can reject, and :the Fur.chaser ~nd the Debt0~s, and their respective successors, . . . . : . . . . . . . . .
. shall be entitled to th~ remedy "of specific performance so as to be permitted to. consummate the
. .
transactions provided in and_.conternplated by the. Transaction Documents, as permitted under
applicable non-bankruptcy law; and. it is fwiher
ORDERED that the TrfillSaction :D9curnents (i~cluding, upon its executio~ the Asset
Purchase· Agreement) and. any related agreements,. dociirnents or other instruments may be
( ,I
modified, amended or supplemented. by the parties in accordance with the terms· thereof: "without
C-&28193v0s_ 1n1s.00011 15
0001.8~00785
further order of the Court, provided that any such modification, amendment or supplement does
not have a material adverse effect on the Debtors' estates and is, if occurring prior to the Closing
date, approved by counsel for each of the Debtors, the Purchaser, the Committee and the Lender;
and it is further
ORDERED that all of the Debtors' interests in the Assets to be acquired by the Purchaser
. . . .
shall be, as of the Closing date and upon the occurrence of the Closing, transferred to and vested
in the Purchaser. Upon the occurrence of the Closing, this: Order shall b_e considered and . .. . -.. ';-.
constitute for any and-all purposes . a full aI1d ·complete · general --assignment, conveyance and
. . . . .
transfer of the Assets acquired . by the . .Purchaser . at . such Closing under the 'fransaction
· Documents (including, upo~ its execution; the Asset Purchase·Agreement) and/or a bill of sale or . ,. . . : . .. . . . . . . .
assignment transferring good . and mark~tabl~; indef~~ilile title and int~rest· in. the Assets
acquired by the Purchaser under the .Trarisact:icin· Documents (incl~ding, upon its execution, tbe . . . .. . . . . . . . . .
· Asset Purchase.Agreement) to the Purch~er; ruid it is.~er-
ORDERED that as ofthe:Cfosmg·date,.tlie:Purch~ser shall be hereby gn1nted immediate·
. . ': . . .. ·. : . . . . . . . . . . . . ' .
· and unfettered access to the Assets acquired by the P'lirc~~ser; and it is further ·
ORDERED that if th6 Purchaser fafls to pay the Dep-qsit as set forth abo"ve, or breache_s.
any . other or further :obligation hereunder, . :uhdet . the Letter . Agreement, or, follqwing its . . . . . . . . . . . .
execution, under the Asset Purchase': Agreement, ·(A) ·all .rights of the Purchaser to the Assets
. shall b~ immediately waiveq ~d/or .terminated, cU1d.:(B) the Debtors may sell by private sale or
public auction, at their discretion; th~, Asset~ to ano~er pwchaser or purchasers pursuant to the.
terms and conditions of the Expedited .Sal~ :Order. (as defined in the.Bulk Sale Motion) or any
further or other order of this Court; and. it is further·
/
C.82&193v05_ 17215.00011 16
0001.83
000786
ORDERED that immediately upon consu:i:nmation of the sale, the Purchaser shall assume
all liabilities and obligations in and relating to the Assets purchased by it hereunder ( except for
the Liens, Claims, and other interests that are transferred. and released by the terms hereof), and
those liabilities explicitly identified in the Transaction.Documents (including, upon its execution,
the Asset Purchase Agreement) as' assumed liabilities, and the Debtors shall. have no other or
further obligations or liab11ities related ~ereto; and it is further
. .
ORDERED that the provision in Bankruptcy Rule 6004(g) staying an order authorizing . . . . . . .
the use, sale, or lease of property until __ t:be expiration .dflO days after entry of such order is
hereby waived; and it is further
ORDERED that pursuant to § 1146( c) .of ·the Bankruptcy Code, .the making delivery, . . .. . .... : ... . . . .
filing, or recording of. (i) any deed, assignm~nt or_relat~dfransfer documents and (ii) any and all
other instru.n;ients of conveyance or transfer hereunder. arid. under" the· .Transaction Documents . . . . : .. . . . . . ~ , .
(collectivelythe "Conveyances''), ·are :exempt ftc;iin ;arid :shall'·not ,be taxed l~~der any Federal,·
Stat~ :or local l~~ imposing :a record.in~'~ ·strupp tax, ~arrsfer tax, or _similar taX; including,
t . . . .
. without limitation, transfer and recorclation t?,X~s appli_cabl~ _to deeds' and assignments of leases,
including. without limitation the any real. ~state ·-ttansfet ta~. and any real p.roperty transfer tax
. .. . . . · .. •. .-· :· . . . .
(C?Ilectively "Transfer Taxes"). All filing aiid. record~D:~. 6_:ffi~ers a:i:-e hereby. authorized and
direct_ed to accept for recording or filing_, .and .to: teco;d o~ :fJ.le 1n;unediately :upon presentation
thereof; the Conveyances, without the payment, of a~y ·_s1:1cti Transfer. Tax~s and without the
requirement o.r presentation of any affidavit .or-form. with respect to any Transfer Tax regarding
the Conveyances. · All governmental ~uthorities, or .taxing authorities shall .be permanently
enjoined "from commencing or maintaining any acti~n to collect from the Purchaser, the Debtors,
/
or the Assets any Transfer Taxes arising from the transfers to be effectuated under the ·
C-828t93v05_ in1s.00011 17
,
.... , ";: )
...
0001.83
000787
Transaction Documents, and this Court retains juri~diction to enforce the foregoing direction, by
contempt or otherwise; and it is further
ORDERED that the Debtors be, and hereby are, authorized to consummate the sale
contemplated hereunder without the necessity of complying with any state or [ocal bulk transfer
requirements; and it.is further
ORDERED that the failure specifically to include any particular provisions. of the
Transaction Documents (including, upon its execution, tile Asset Purchase Agreement) in this
Order.shall not diminish or impair the efficacy of su~h:p:rd"0sions, it beiqg-the intent of the Court
that such documents are approved in their entirety'.• . . . . . . . .
Dated: Charlptte, No'rth Carolina
J:me· ~ 2003
Cl?ef UnitedStates Bankruptcy Judge
C-&28193v05_ i 721f00011 18
ATTENTION:
FAX NUMBER:
Mike,
Mike Cody
[phone]
As per our conversation, please find an Order Of Approval for the Olin Corporation industrial
process waste landfill, Permit Number 88-05, also called the "Island Landfill"
This Order of Approval_is_ the landfill permit. In 197 4, the original date of approval for the
landfill, order of approvals were issued, not permits. Later, the Division assigned a permit
number to all Order of Approval landfills, including this one.
If this is not sufficient, hopefully the Closure Letter, which should be completed this week will
be sufficient. The Closure Letter will contain the permit number, the owner/operator, and the
post-closure requirements for the owner/operator.
I hope this helps.
James C. Coffey, Acting Chief
Solid Waste Section
6-~A -=-,; .... ~-~-NCDEMR
North Carolina Department of Environment and Natural Resources
Dexter R. Matthews, Director Division of Waste Management Michael F. Easley, Governor
November 18, 2005
Mr. D. Mike Cody, Special Projects Manager
Policy and Compliance -P.H. Glatfelter Company
214 Camelot Drive
Clyde, North Carolina 28721
and
Mr. Devon McCall, Managing Partner
Ecusta Real Estate 2, LLC
P.O.Box1119
Pisgah Forest, North Carolina 28768
William G. Ross Jr., Secretary
Re: Closure of the P.H. Glatfelter Process (Island) unlined, Industrial Waste
landfill unit -Pisgah Forest, Transylvania County, North Carolina
FACILITY PERMIT#: 88-05.
Mr. Cody and Mr. McCall:
The Solid Waste Section (the Section) has received and reviewed documentation
submitted by Sevee & Maher Engineers, Inc. (SME) on behalf of P.H. Glatfelter,
regarding the subject facility. Based upon the certification report dated March 2005
from SME, the Section has determined that the unlined industrial landfill unit at the
subject facility has been closed in accordance with the applicable requirements and the
approved closure plan. This determination may be rescinded should any of the
documentation prove to be inaccurate.
The unlined industrial process waste landfill unit at the subject facility is considered
closed subject to the following post closure conditions. The owner/operator of the
industrial waste landfill unit, P.H. Glatfelter, is responsible for compliance with these
conditions; with the exception of condition #6, that is the responsibility of the landowner
(deed holder) for that piece of property that the industrial process waste landfill
occupies. Condition #7 addresses continued water qua.lity monitoring for the existing
ground water monitoring system.
1646 Mail Service Center, Raleigh, North Carolina 27699-1646
Phone [phone] \ FAX [phone] \ Internet http://wastenotnc.org
An Equal Opportunity I Affirmative Action Employer -Printed on .Dual Purpose Recycled Paper
Mr. Cody and Mr. McCall
November 18, 2005
Page2
Please note, that this closure shall become effective upon written notification by the
owner/operator that the facility shall be maintained in compliance with the post closure
conditions specified in this letter. Rule .0510 also states that when a disposal unit is
closed, the permit to operate that unit is terminated and any future disposal operations
will require a new solid waste permit from the Solid Waste Section.
Please note, that the post-closure period is effective starting on 1 January 2005, as
stated by the certifying engineer that the final cap was completed on said date. Also
note that this closure letter and Post Closure conditions must be recorded in
accordance with condition #6 and a copy of this recorded document returned to the
Solid Waste Section at:
DIVISION OF WASTE MANAGEMENT
SOLID WASTE SECTION
1646 MAIL SERVICE CENTER
RALEIGH, NORTH CAROLINA27699-1646
ATIN: Ed Mussier
The entire closure letter should be recorded and reference to the following tract of
property (deed reference provided by Ecusta Business Development Center, LLC) with
respect to the P.H. Glatfelter industrial process waste landfill on property owned by
Ecusta Real Estate 2, LLC:
A. Deed Book: 183 Page(s): 765 thru 787
If you have any questions concerning this closure letter don't hesitate to call me at (919)
508-8497 or James Patterson in the Asheville Regional Office at [phone].
Sincerely,
~Cof~
Solid Waste Section
cc: Ed Mussier
Mark Poindexter
Brent Rockett
James Patterson
Sevee & Maher Engineers, Inc.
P.O. Box85A
Cumberland Center, ME 04021
Attn: John E. Sevee, P.E.
FACILITY PERMIT NO: 88-05
Closure of INDUSTRIAL LANDFILL Unit
Date: November 18, 2005
STATE OF NORTH CAROLINA
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
DIVISION OF WASTE MANAGEMENT
1646 MAIL SERVICE CENTER; RALEIGH, N.C. 27699-1646
INDUSTRIAL SOLID WASTE LANDFILL
FACILITY
ECUSTA REAL ESTATE 2, LLC (CURRENT LANDOWNER)
AND
P.H. GLATFELTER (LANDFILL OWNER/OPERATOR)
are hereby issued a
LETTER OF CLOSURE
for the P.H. Glatfelter
UNLINED INDUSTRIAL PROCESS WASTE LANDFILL UNIT
Permit Number 88-05, located on property recorded in DEED BOOK: 183,
PAGES: 765 -787; Plat Map recorded at Plat Cabinet 10, Slide 301 in the
Transylvania County Public Registry
The property is comprised of approximately 39 acres bordered by the French Broad
River located east of NC Highway 280 and south of US Highway 64 in Pisgah Forest,
Transylvania County, North Carolina. This closure letter is issued in accordance with
Article 9, Chapter 130A, of the General Statutes of North Carolina and all rules
promulgated there under and subject to the conditions set forth in this letter of closure.
mes C. Coffey, C
Solid Waste Section
Division of Waste Management
POST CLOSURE CONDITIONS
1. MANAGEMENT OF LANDFILL GAS: The owner/operator shall take the
measures necessary to ensure that the closed site shall continue to meet
the design standards for landfill gas found in Rule .0503(2)(a).
2. MANAGEMENT OF SURFACE WATER: The owner/operator shall take
the measures necessary to ensure that the closed site shall meet the
requirements of Rule .0503(2)(c). In addition, the landfill unit shall be
maintained such that surface water runoff occurs in a controlled manner,
and surface water shall not be impounded over waste.
3. AIR QUALITY: The owner/operator shall ensure that landfill units do not
violate any applicable requirements developed under a State
Implementation Plan approved or promulgated by the U.S. EPA
Administrator pursuant to Section 110 of the Clean Air Act, as amended.
4. FINAL COVER SYSTEM: The owner/operator shall maintain the integrity
and effectiveness of the final cover system and any permanent erosion
control devices must be maintained. This could include making repairs to
the cover as necessary to correct the effects of settlement, subsidence,
erosion, or other events.
5. PROPOSED USES: Any proposed post-closure use of the landfill shall
be submitted to the Solid Waste Section of the Division of Waste
Management for review and approval. Proposed post closure uses shall
not impede or violate any post closure conditions found in this letter. In
particular, plans for post closure uses shall avoid possibilities for the
entrapment of methane gas. Routine landfill gas monitoring within
structures and at the facility boundary may not be sufficient to detect
potentially dangerous situations.
6. RECORDATION: Ecusta Real Estate 2, LLC, the owner of the land
occupied by the landfill, shall ensure that the recordation requirements for
land disposal sites found in 15A N.C. Administrative Code Rule .0204 are
met by filing this Closure Letter for recordation in the Transylvania County
Registry.
Whenever the property on which the landfill is located is sold, leased,
conveyed or transferred, the deed or other instrument of transfer shall contain
in the description section in no smaller type than that used in the body of the
deed or instrument a statement that the property has been used as an
unlined landfill for the disposal of industrial waste and closed under the North
Carolina Solid Waste Management Rules, that future use of the property is
restricted by the North Carolina Division of Waste
' , I<:,
Post-Closure Conditions
Page2
Management, and a reference by book and page number to this recorded
Closure Letter. Said statements shall be included on all future deeds or
other instruments of transfer in order to notify in perpetuity any potential
purchase of property that:
(a) The property is an unlined industrial waste landfill; and
(b) Prior to the landfill, the property was used as a pit type industrial waste
incinerator
(c) Its use is restricted under the closure plan approved by the Division.
and the Closure Letter issued by the Division on November 18, 2005.
The attached certified copy of the closure letter shall be recorded by the Register
of Deeds and indexed in the grantor index under the name of the land owner,
Ecusta Real Estate 2, LLC. The certified copy affixed with the Register's seal
and the date, book, and page number of the recording shall be returned to the
Solid Waste Section.
7. WATER QUALITY MONITORING AND REPORTING REQUIREMENTS:
a. Groundwater quality at this facility is subject to the "Classification
and Water Quality Standards Applicable to the Groundwaters of
North Carolina," 15A NCAC 2L. This includes, but is not limited to,
the provisions for detection monitoring, assessment, and corrective
action.
b. P.H.Glatfelter, as permittee of the landfill, shall sample, in
accordance with the post-closure water quality monitoring plan
approved by the Solid Waste Section, the detection monitoring
wells and surface water sampling location(s) on a semi-annual
basis, at a minimum.
c. Water quality detection monitoring shall continue for a minimum of
five years from the date of the engineer's certification, indicating
that the facility is closed. After five years the Sections will
determine if further monitoring is to be required.
d. Sampling equipment and methods shall conform to specifications in
Attachment 1, "North Carolina Water Quality Monitoring Guidance
Document for Solid Waste Facilities." The sampling parameters
and methods of analysis shall be in accordance with the post-
closure water quality monitoring plan for the landfill approved by the
Solid Waste Section.
e. The permittee shall maintain a record of all monitoring events and
analytical data. Reports of the sampling events and analytical data
shall be submitted to the Section in a timely manner.
DOCUMENT LIST in Files of Solid Waste Section
1. Process Waste Landfill Closure Plan dated 02/08/00 and approved 05/11/01.
2. Letter dated 10/16/02 from the Solid Waste Section addressing groundwater
monitoring and post closure monitoring for the facility.
3. Revised Process Waste Landfill Closure Plan dated 11/04/03 for the facility.
4. Compliance Order without Administrative Penalty dated 04/21/04.
5. Closure inspection letter dated 02/15/05 from James E. Patterson.
6. Construction documentation report for the Process Waste Landfill Closure: P.H.
Glatfelter, Pisgah Forest, North Carolina dated March 2005.
7. Special Warranty Deed dated 8 August 2003 for Ecusta Real Estate 2, LLC
recorded in Deed Book: 183 and Pages: 765 -787, received on 13 May 2005.
2005017083
~ TRANSYLVANIA CO, NC FEE $35.00 === PRESENTED & RECORDED :
12-06-2005 02:43:16 PM
::::: CINDY M OWNBEY = RI:GISTER OF DEEDS ~ BY: TERESA D MORTON
........ DEPU'?Y REGISTER or DEEDS
-
BK:DOC 322
PG:261-268
THIS PAGE IS PROVIDED FOR RECORDATION PURPOSES. THE ENTIRE
DOCUMENT, INCLUDING THIS PAGE, SHOULD BE RECORDED AND
REFERENCED TO THE PARCEL OF PROPERTYLOCATED IN TRANSYLVANIA
COUNTY AND SAID PROPERTY IS OWNED BY:
ECUSTA REAL ESTATE 2, LLC
AND FURTHER IDENTIFIED BY THE SPECIAL WARRANTY DEED RECORDED
IN:
DEED BOOK: 183 AND PAGES: 765 -787
THE PURPOSE OF THIS RECORDATION IS TO NOTIFY FUTURE BUYERS OF SAID
PROPERTY THAT AN INDUSTRIAL PROCESS WASTE LANDFILL EXISTS ON THE
PROPERTY.
. ,,.·' ,·
CERTIFIED COPY OF CLOSURE LETTER
I do hereby certify that the attached CLOSURE LETTER is an exact and true copy of
the closure letter for the P.H. GLATFELTER INDUSTRIAL PROCESS WASTE, Unlined
Landfill Unit, Permit Number 88-05.
North G4fplina
UJ4tr§ County
mes C. Coffey,
Solid Waste Sectio
Division of Waste Management
I, fu1v th c5/dl(f·ud , Notary Public for ll;a,~ County, North Carolina,
doher~by certify that JAMES C. COFFEY, of the Solid Waste Section, personally
appeared before me this day and acknowledged the due execution of the foregoing
instrument. ............ _ .. ,,,. .... J s ...... ,.,
Witness my hand and official seal, 1 ..... ·"~') ...... £ ....... ft-,;~ .....
this the If day of ,dr11moe,r , ~oot: /~/' ~OTA~ ,(9.,...\
/J..L.::.~r-::u,;~~~~~ JiCIA~ ;;~ 'Y)
\.:.;> ...... uaL,c, ;&i/ t.. ·· .. 1""~ .................... ~~ My commission expireso.u--J.q , 201a ·· ...... Counw, ....... . ~ •,,-,,,•-.,u ... u,11~'
Presented for recording by Devon McCall, Managing Member of Ecusta Real Estate 2,
LLC. ~ ~cJ
Devon gee~
North Carolina
B uocornhe--County
I, E\ia1beth j1.. \JJ,5e.... , Notary Public for TuoCDrnbe... County, North Carolina,
do hereby certify that DEVON MCCALL, Managing Member of Ecusta Real Estate 2,
LLC., personally appeared before me this day and acknowledged the due execution of
the foregoing instrument and certified that he has the authority under the Membership
Agreement to file legal documents for the recordation on Behalf of the Limited Liability
Corporation.
Witness my hand and official seal,
this the 5 day of Dece.mbe(
r1,w-1a.u.~
NITTI RYPUBLIC
My commission expires _ __,9'-'-J=S_,~~oo~g~---' 20 oQ
)