Francis A. Citera GREENBERG TRAURIG, LLP Suite W. Upper Wacker Drive Chicago, IL

COMMENTS OF P. H. GLATFELTER CO. ON THE PROPOSED SETTLEMENTS OF (1) THE CASHOUT SETTLING DEFENDANTS AND THE STATE OF WISCONSIN, (2) KIMBERLY-CLARK CORPORATION, AND (3) NEWPAGE WISCONSIN SYSTEM INC. IN CONNECTION WITH THE LOWER FOX RIVER AND GREEN BAY SITE BY CONSENT DECREES IN UNITED STATES v. NCR CORP., No. 1:10-cv-910-WCG (E.D. Wis. lodged Mar. 26, 2014) David G. Mandelbaum Caleb J. Holmes GREENBERG TRAURIG, LLP 2700 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 215.988.7800 mandelbaumd@gtlaw.com holmesc@gtlaw.com Francis A. Citera GREENBERG TRAURIG, LLP Suite 3100 77 W. Upper Wacker Drive Chicago, IL 60601 312.456.8400 citeraf@gtlaw.com Counsel for P. H. Glatfelter Company

The P. H. Glatfelter Company ( Glatfelter ) submits these comments to the United States Department of Justice ( DOJ ) on DOJ s proposed consent decrees, Dkts. 924-1, 924-2, and 924-3, in United States v. NCR Corp., No. 1:10-cv-910 (E.D. Wis. lodged March 26, 2014). Our comments focus on the principal consent decree, Dkt. 924-1, and to the extent they apply as well to the other two decrees, we ask that DOJ consider them in connection with a motion to enter them as well. In the principal consent decree ( Proposed Consent Decree ), the United States proposes to resolve the liability for response costs, response actions, and natural resource damages at or in connection with the Lower Fox River and Green Bay site ( Site ) of the City of Appleton, CBC Coating, Inc., Menasha Corporation, Neenah-Menasha Sewerage Commission, U.S. Paper Mills Corp., WTM I Company (the Cashout Settling Defendants ) and the State of Wisconsin (the State ). Glatfelter s interest is in assuring that the settlement payments being made by the Cashout Settling Defendants and the State are (a) fair and reasonable and (b) used to offset amounts for which the United States and the State allege that Glatfelter is responsible. The proposed settlement (1) fails to provide a mechanism to assure that the money disbursed to the State is used efficiently by the Wisconsin Department of Natural Resources ( WDNR ) solely to pay for necessary costs of response incurred not inconsistently with the National Contingency Plan ( NCP ), 40 C.F.R. pt. 300, or otherwise in a way that would reduce the exposure of other liable parties at the Site; (2) requires payment from the State of an amount that is neither fair nor reasonable for the resolution of its liability, and fails to provide justification that the settlement with the State is reasonable, fair and consistent with the statutory purposes of CERCLA; and (3) increases the likelihood that Natural Resource Damages ( NRDs ) have been overcompensated by crediting most of the payments of the Cashout Settling Defendants to the payment of NRDs. 2

Instead, the consent decree should contain a mechanism to allocate payments to costs of response for the OU2-5 cleanup. The present posture of the allocation litigation, Appleton Papers Inc. v. Geo. A. Whiting Paper Co., No. 2:08-cv-16 (E.D. Wis. judgment entered June 26, 2013), appeal pending, No. 13-2447 (7th Cir. argued Feb. 28, 2014) ( Whiting ), bears upon any evaluation of the fairness, reasonableness, and consistency with CERCLA of these consent decrees. Under the judgment entered in the district court, NCR Corporation ( NCR ) owes full contribution to each of the Cashout Settling Defendants, Kimberly-Clark Corporation ( KC ), and NewPage Wisconsin Systems, Inc. ( NewPage ), for all of the matters addressed in the proposed decrees, subject to the possibility of an offset for insurance recoveries that some of the Cashout Settling Defendants may have received. Presumably, the State would be treated in a parallel fashion. Therefore, if the Court of Appeals should affirm the Whiting allocation, each of the Cashout Settling Defendants, KC, and NewPage has agreed in the proposed consent decrees to pay more than what its fair share would be. 1 Nevertheless, the governments propose to collect millions or tens of millions of dollars from each defendant. The governments must have recovered such large amounts from the Cashout Settling Defendants because the Cashout Settling Defendants are being relieved of any exposure to a non-zero allocation of response costs and NRDs in the event that the Whiting allocation were to be vacated. That amount must be based on an evaluation of the possible non-zero recoveries from the Cashout Settling Defendants discounted by the probability not only of a ruling in NCR s favor in NCR s appeal from the Whiting allocation, but 1 To be sure, each would be exposed to the amount of its insurance recoveries. However, if these consent decrees do not call for a party to disgorge its insurance recoveries on account of indemnification (rather than defense), then that party would be making a profit on this matter; it would have recovered more from its insurers than it will have spent toward response, NRDs, and this settlement. Glatfelter does not have the information available to make that assessment, but trusts that the parties to these consent decrees have assured through negotiation that no one is profiting from this case. 3

also of a ruling in NCR s favor on remand. Because those probabilities must each be significantly less than 100%, one must conclude that the settlement payments would be substantially less than the Cashout Settling Defendants, KC s, NewPage s, and the State s fair shares in the event that Whiting were to be reversed and the district court on remand were to assign parties other than NCR significant shares. Glatfelter agrees that parties can settle cases based upon probability-discounted assessments of the range of possible outcomes. However, in evaluating the fairness of the decrees, it is important to keep scenarios straight. The most likely scenario is one in which Whiting is affirmed (because courts of appeals affirm the majority of district court judgments) or that the allocation on remand is similar to the allocation on appeal (because the best predictor of equitable weighing on remand is the equitable weighing the first time). 2 If either of those events were to occur, no one other than NCR and its indemnitors has any particular interest in how much any settling party pays or where the settlement payment goes. However, in the event that Whiting were to be vacated, Glatfelter has an interest in the fair and reasonable use of the settlement amounts, and it is in that unlikely scenario that these consent decrees should be evaluated. I. The Proposed Consent Decree Unreasonably Allocates Settlement Payments to NRDs Rather than Costs of Response For the OU2-5 Cleanup. The Proposed Consent Decree allocates $41,025,000 plus interest, of the $54,100,000 total payments, toward the payment of NRDs at the Site. Similar allocations apply to the payments under the KC and NewPage consent decrees. The proposed decrees contain no mechanism to redirect those amounts to the ongoing response action in Operable Units 2-5 ( OU2-5 ). That omission is unreasonable and contrary to the purposes of CERCLA for two reasons. First, the 2 Recall that NCR s primary ground for appeal is, as it must be, procedural. NCR complains not that the allocation is unfair, but that it was unfairly arrived at by summary judgment. 4

Court of Appeals may rule in a way that would, as a practical matter, cause a delay in the project that these settlement amounts could bridge. Second, the NRD recoveries by the Trustees under these proposed decrees may exceed any remaining, uncompensated NRDs, and litigation with NCR and Glatfelter may result in a judgment to that effect. In the event of that judgment, the over-compensation to the Trustees should not remain with them. The Trustees should have to return over-payments for use to pay response costs, or to reimburse those who have expended response costs and should in fairness have a reduction in their obligations on a dollar-for-dollar basis as the result of these settlements. a. The settlement payments under these decrees should be kept available to allow the OU2-5 cleanup to continue without interruption even if the Court of Appeals vacates the Whiting allocation. Under arrangements set up by NCR and its indemnitors, Lower Fox River Remediation, LLC, ( the LLC ) is implementing the remedial action in OU2-5. United States v. NCR Corp., Dkt. 172 at 1; Dkt. 814 at 2. The LLC receives funds for that work from a trust fund established for the purpose. Cash calls to fund the work run at approximately $10 million/month during the construction season. Id., Dkt. 814 at 2. Tracking the allocation ordered in Whiting, NCR and its indemnitors pay those cash calls. If the Court of Appeals were to vacate the allocation in Whiting, there would be no established allocation of responsibility to pay costs of response as between NCR and Glatfelter for work upstream of the line established in the Georgia-Pacific consent decree and no established allocation of responsibility as among NCR, Glatfelter, and Georgia-Pacific downstream of that line. While NCR has asked the Court of Appeals to vacate the judgment establishing the current allocation, no party has suggested that the Court of Appeals would have the ability on the current record to substitute a different allocation. Therefore, if NCR were to 5

prevail in its appeal the scenario that matters for purposes of evaluating the fairness and reasonableness of the Proposed Consent Decree a period would follow during which no allocation would exist. District court litigation would ultimately substitute a different allocation should the current allocation be vacated. However, that cannot happen quickly enough to avoid an interruption in the OU2-5 project should the Court of Appeals decision come down during the construction season. NCR, Glatfelter, and GP could, of course, reach agreement on an interim funding mechanism for the OU2-5 project. However, all prior history suggests that they will not be able to do so, at least not in a matter of weeks. Litigation will follow among these parties, but it cannot be resolved soon enough to avoid an interruption in the work. The United States may commence enforcement litigation, but that enforcement litigation cannot be resolved in a matter of weeks. Indeed, the government s claim would seem to arise under section 106(b)(1) of CERCLA and would require a showing that the defendant failed to comply without sufficient cause. Without an allocation, the United States will have difficulty establishing which party or parties has failed without sufficient cause to comply with the Administrative Order for Remedial Action ( UAO ) issued in November 2007. See 42 U.S.C. 9606(b)(1). The United States will know that the amount of funding provided did not suffice to keep the project going, but it will not know which party offered too little. The same would be true even if the United States sought to invoke the District Court s equitable contempt power against Glatfelter and NCR; the District Court has not enjoined GP. The District Court can only hold a party in contempt that is in violation of the injunction. Without an allocation, one cannot know which party has caused the injunction to be violated. 6

That issue will be magnified should the Court of Appeals disturb the mandatory injunction in this case. If the Court of Appeals vacates the Whiting injunction, one might say in fact, Glatfelter has said that the injunction violates Federal Rule of Civil Procedure 65(d) because Glatfelter cannot know without an allocation what Glatfelter is called upon to do. While much of this is conjecture, it will not be conjectural at or shortly after the earliest time that the DOJ could move to enter these consent decrees. If the Court of Appeals vacates the Whiting allocation or otherwise makes continuation of the OU2-5 cleanup hard to maintain smoothly, the United States should use the funds it is collecting from these Cashout Settling Defendants to bridge the timing gap between a ruling on appeal and resolution of who has to do what to implement the remedy in OU2-5. Failure to do so is unreasonable and contrary to the purposes of CERCLA. In order for any amendment to the Proposed Consent Decree to accomplish the reasonable purpose of keeping the OU2-5 project proceeding while maintaining the same impacts on the ultimate allocation of responsibility for this Site as originally proposed, the settlement payments should be directed to work upstream of the GP Line if work remains to be done in that part of the river. As presently crafted, the Proposed Consent Decree will reduce the governments NRD claims, but those claims only remain against NCR, Glatfelter, and Appvion, Inc. (if the United States prevails in its appeal); GP has resolved its liability for NRDs. If the Proposed Consent Decree were to be modified to allow use of the settlement amounts for work downstream of the GP Line, the use of those settlement amounts would reduce the governments response action claim against GP without any compensating increase in GP s NRD exposure. Consequently, such a modification would change the fairness of the Proposed Consent Decree in order to make it more reasonable, which should not occur. 7

b. The settlement payments under these decrees should be kept available to fund response actions or costs at this site if the Trustees have been overcompensated. The proposed payment of $41 million to the Trustees by the Cashout Settling Defendants, and then additional millions from KC and NewPage, in addition to the amounts already collected by the Trustees on account of NRDs may well overcompensate the Trustees for all NRDs at the Site. The Proposed Consent Decree includes no mechanism to redirect those payments toward, for example, the costs of response for the OU2-5 cleanup, should such an overpayment become evident. The Trustees have received many tens of millions of dollars in settlement of their NRD claims. Some of these payments were made a long time ago, and therefore have a much higher present value than the nominal amounts actually paid. Others were payments in part in kind to which the Trustees ascribed a natural resource compensation value different from their cost. Glatfelter recognizes that the parties may disagree over the exact reduction in the Trustees claims for NRDs appropriate on account of these past settlements, but that disagreement is in part the point of this comment. In 1997, the Fox River Group of Companies ( FRG ) entered into the State Agreement with the Wisconsin Trustees. Under that agreement, the Wisconsin Trustees committed that Expenditures by the Companies pursuant to [the State Agreement] will be credited against any final judgment or settlement obtained by the trustee(s) relating to claims for response actions or costs or natural resource damages arising from releases to the Fox River. The State Agreement required the FRG to pay $10,000,000 toward resource assessment and restoration projects, but as the result of demands for additional funding, they paid $19,754,803 for natural resource 8

damages restoration and demonstration projects and to conduct an NRDA under the 1997 State Agreement. Beginning in 2001, under the consent decree filed in United States and the State of Wisconsin v. Appleton Papers Inc. and NCR Corp., No. 01-C-0816, NCR and Appleton Papers Inc. paid a total of $41,500,000 toward NRDs and other projects. In 2004, under the consent decree filed in United States v. Fort James Operating Co., No. 02-c-0602, Fort James Operating Company resolved its liability for NRDs in exchange for payment toward NRDs and protection of certain land, for a contribution toward NRDs that the United States claimed cost $10,860,000, but had a higher value. In 2004, under the consent decree filed in United States v. P.H. Glatfelter Co., No. 2:03-cv-949, Glatfelter and WTM I Company paid $3,000,000 toward NRDs. In 2006, under the amended consent decree filed in United States and the State of Wisconsin v. Appleton Papers Inc. and NCR Corp., No. 01-C-0816, Appleton Papers Inc. and NCR Corporation paid $5,500,000 toward NRDs. In 2009, under the consent decree filed in United States v. George A. Whiting Co. et al., 1:09-cv-0692, the settling defendants paid $446,591 toward NRDs In 2010, under a consent decree filed in United States v. George A. Whiting Co. et al., 1:09-cv-0692, the City of de Pere paid $35,700 toward NRDs. In 2010, under the consent decree filed in United States v. NCR Corp., No. 10-C-910, payments made by Brown County and the City of Green Bay paid $595,000 toward NRDs. 9

Those past payments properly valued and then inflated to present value in addition to the $41,025,000 plus interest allocated to NRDs in the Proposed Consent Decree, could very easily exceed the NRDs for this Site. The United States has claimed that the NRDs for the Site run to the hundreds of millions of dollars. However, that claim depends upon disputed science and, critically, upon stated preference data to value injuries. The parties have not had an opportunity to litigate this claim. Should Glatfelter or NCR prevail in defending the claim on the merits, the judgment may imply that the settlement amounts being recovered here exceed all of the remaining, uncompensated NRDs, if any. Allowing the NRDAR Fund to retain an overcompensation would be unfair, unreasonable, and contrary to CERCLA. Section 107(f)(1) of CERCLA provides, in part: There shall be no double recovery under this chapter for natural resource damages, including the costs of damage assessment or restoration, rehabilitation, or acquisition for the same release and natural resource. 42 U.S.C. 9607(f)(1). Thus, the statute prohibits overcompensation of the Trustees for NRDs, and this Proposed Consent Decree should not call for overcompensation. Even if overcompensation were consistent with the statute, which it is not, the parties to this consent decree cannot decide to apply the settlement proceeds to that overcompensation when the cost of the ongoing response actions is so significant. Glatfelter is entitled to a reduction in the United States and the States claims against it pro tanto for settlements. 42 U.S.C. 9613(f)(2). The Proposed Consent Decree would provide the Cashout Settling Defendants with a covenant not to sue and contribution protection for NRDs, response actions, and response costs. Thus, the claims against Glatfelter must be reduced by the full amounts of these settlement payments in all fairness and to be consistent with section 113(f)(2) of CERCLA. That cannot 10

occur if the Trustees receive overcompensation and the full cost of the required response remains to be borne by NCR, GP, and Glatfelter. Rather than have any overpayment be absorbed into the general NRDAR Fund, the Proposed Consent Decree should include a mechanism to allocate any amounts paid in excess of the actual NRDs toward the actual cleanup of OU2-5. While 76 percent of the settlement payments are allocated toward NRDs, zero percent of the settlement payments are allocated toward costs of the OU2-5 remedial action. A mechanism that allows any NRD overpayments to fund the actual project would provide a far more equitable use of those funds than having those funds be returned to the general NRDAR Fund. II. The Proposed Consent Decree Lacks a Mechanism to Assure Monies Paid to the State are Used Fairly and Reasonably The State is set to receive a significant portion of the funds paid by the Cashout Settling Defendants. Section VI.6(ii) of the Proposed Consent Decree states that [t]he funds shall be disbursed and applied as follows... (ii) $7,050,000 (plus all accrued interest earned on $7,050,000 of the funds deposited in the Court Registry Account) - or 13% of the funds in the Court Registry Account shall be disbursed to the State and deposited in a segregated fund under the direction of WDNR. Those payments shall be retained and used to conduct or finance response actions at or in connection with the Site. If any such funds remain after completion of the response action at the Site, WDNR shall transfer all remaining funds to the EPA Hazardous Substance Superfund. Proposed Consent Decree at VI.8(c). Under parallel provisions of the proposed consent decree with KC WDNR would receive $950,000 for a total of $8 million. WDNR may receive additional amounts under the proposed NewPage consent decree depending on the outcome of the NewPage bankruptcy. The State makes no covenant 11

with respect to the use of those funds. See Proposed Consent Decree at IX.13; XI.18(b). Nor is there any recordkeeping requirement with respect to how those funds are used. Only persons who are not parties to this Proposed Consent Decree have a direct interest in assuring that WDNR uses these funds exclusively for necessary costs of response incurred not inconsistently with the National Contingency Plan. See 42 U.S.C. 9607(a)(1-4)(A). In order for those payments to provide the required pro tanto reduction in claims against Glatfelter, they have to be expended on items for which the State or the United States would, in fact, have a claim. The State has no right to recover anything other than necessary costs of response incurred not inconsistently with the NCP, and therefore some mechanism must exist to assure that the money provided to the State actually goes for that purpose. As currently constituted, the Proposed Consent Decree includes no mechanisms that ensure that the $7,050,000, plus interest, that the State would receive under this settlement will be used properly. It imposes no recordkeeping obligation to track how the State spends the money. Without a recordkeeping mechanism, other parties are not able to ensure that the money is used in a way that complies with the National Contingency Plan. WDNR is not an agency that is set up to use these funds efficiently and in a way that is consistent with the National Contingency Plan. By way of example, WDNR failed to follow the terms of the agreement it entered into with PRPs in 1997 to conduct a dredging demonstration project. The record in this case includes several instances in which the failure of the State to implement conventional controls and recordkeeping has raised questions, at a minimum. WDNR has been unable to provide complete documentation of how the amounts it received from EPA under the grant to prepare the RI/FS were spent. 12

The documentation of that grant raise serious questions as to whether it was a cooperative agreement in proper form under CERCLA and its regulations in part because the document itself was not maintained in the administrative record or in any other regular file at WDNR. A complete working copy of the fate and transport model that supported the RI/FS was not maintained in the administrative record. Moreover, the absolute amount of payment to the State for future response costs is out of line with any reasonable projection of the costs that the State might have to incur. Currently, the State primarily provides oversight to the implementation of the OU2-5 remedial action by the LLC. Glatfelter believes that the State is charging about $1.5 million annually to that project. At first blush, $1.5 million per year seems far too much to be necessary for oversight of that project. Tetra Tech oversees the project for the LLC. The Administrative / Oversight Team ( A/OT ) merely oversees the overseer. It is hard to imagine how a $1.5 million effort by the State would be required would be necessary to assure that the project is completed properly, particularly now that all parties have had years of experience cleaning up this river. Even if $1.5 million per year were reasonable, the project is not slated to continue at its current pace past 2015, and should be completed entirely by 2017. Four years at $1.5 million/year is far less than what the State will recover. Perhaps costs will escalate. Perhaps there will be work in the future. But there is no reason to believe that the State will have multiple millions of dollars of costs over and above oversight expenses this year and for the following three. Note in this regard that the State does not even waive its right to seek more. Finally, we note that WDNR answers to the Governor and the Legislature of Wisconsin. They may decide to divert settlement amounts to the Wisconsin General Fund or to spend the 13

money in a less targeted way than specifically on this Site. As has been widely reported in the press, New Jersey Governor Christie has proposed to divert amounts in excess of $50 million in natural resource, cost recoveries and other associated damages recovered by the State from the New Jersey Hazardous Discharge Site Cleanup Fund to the General Fund in that state. State of New Jersey Governor s FY 2015 Detailed Budget at D-126 (Feb. 25, 2014), posted at http://www.state.nj.us/treasury/omb/publications/15budget/pdf/fy15budgetbook.pdf; see also, e.g., New Jersey May See Cleanup Money as Revenue Source, Asbury Park Press (Apr. 27, 2014), posted at http://www.app.com/viewart/20140427/njnews10/304270032/new-jerseymay-see-cleanup-money-revenue-source. A large state settlement of some liabilities for the Passaic River Site reportedly motivated this language in the New Jersey budget. Those circumstances are not identical to these proposed Fox River settlements, and New Jersey is not Wisconsin. Nevertheless, the New Jersey incident provides a concrete reason for concern. The funds otherwise slated for the State should be placed in the OU2-5 remedial action account or some other account and disbursed to the State as the State incurs costs. Payments of oversight costs under the OU1 Consent Decree provide a model. There is no reason for this settlement to offer the State a multi-million dollar, unaccounted, unreported slush fund. The currently proposed arrangement would be unfair, unreasonable, and inconsistent with the purposes of CERCLA. III. The Proposed Consent Decree Fails to Provide Justification that the Settlement with the State is Fair, Reasonable and Consistent with the Statutory Purposes of CERCLA. Glatfelter and certain Cashout Settling Defendants allege in their counterclaims that the State is liable for the Site due to its recycling of PCB-containing wastepaper and due to its ownership 14

of the beds of Little Lake Butte des Morts and Green Bay. See, e.g., Dkt. 60 at 20-25, 43-45. The Proposed Consent Decree requires the State to pay $100,000 and in return the United States covenants not to sue the State and provides the State with contribution protection. Proposed Consent Decree at IX.12.b, XXII.24. In addition, although the State is required to pay $100,000 into the Court Registry Account, the Proposed Consent Decree and the proposed KC consent decree require that $8,000,000 (plus interest) be disbursed to the State. The State has agreed to resolve its liability for $100,000, but the United States has provided no evidence that $100,000 is a fair and reasonable amount. That settlement amount is extremely small relative to the cost of the cleanup, the amounts every other settling party has paid or will pay to resolve its liabilities, and the total of NRDs as estimated by the United States. Indeed, the State s payment is small relative to the amount that the State is receiving under this settlement. On its own terms, $100,000 is not a fair or reasonable amount, and the United States has provided no justification for settling with the State for such a small amount. Glatfelter does not endorse the scale of settlement payments that the United States has demanded and obtained, but the proposed settlement amount by the State is outside that scale. The State owns the beds of Little Lake Butte des Morts and Green Bay. To the extent that PCBs from OU1 caused the need to clean up downstream, the State maintained the condition that allowed that to occur. To the extent that the condition of Green Bay causes continuing damage to natural resources, the State maintains that condition. Any restoration of Green Bay would redound to the benefit of its current owner, and therefore the current owner has a moral responsibility to contribute significantly. See United States v. R.W. Meyer, Inc., 932 F.2d 568 (7th Cir. 1991). 15

The United States Army Corps of Engineers, a party that the District Court could not believe bore any liability at all for the Site, paid $4.85 million in settlement. The two municipalities with whom the United States proposes to settle concurrently with the State would each pay $5.2 million. While one can quibble about the City of Appleton s culpability, the Neenah-Menasha Sewerage Commission is a tiny entity that claims that it had no authority to refuse industrial sewage from the John Strange Paper mill and the Wisconsin Tissue Mills mill. The District Court did not find NMSC s discharge to be a significant source of PCBs to the river. It is located in OU1 and arguably not responsible for any downstream costs. The sources of the PCBs to the NMSC facility are themselves paying in excess of $10 million each in this proposed settlement, so arguably their full shares are covered. And yet, the United States is demanding 52 times the settlement payment from NMSC as is being proposed for the State. That makes literally no sense. In addition, the absence of any justification for the small size of the proposed settlement payment suggests that the amount the State paid was reduced by the other settling parties in return for a reduction in payments by those parties. 3 If the United States allowed the State and the other settling parties each to reduce its payment in order to obtain settlement, the United States unreasonably increased the exposure of all non-settling parties and has crafted an unfair and unreasonable settlement. If the State and the other settling parties engaged in netting, then the total amount available to defray the United States and the States claims as required by section 113(f)(2) has been reduced. That would be unfair to Glatfelter, unreasonable, and inconsistent with the purposes of CERCLA. 3 Glatfelter notes that it believes that the payments made by the Cashout Settling Defendants was excessive. Nevertheless, the structure of this transaction strongly suggests that more was demanded of those parties, but they offset that demand by a reduction in the payment by the State. 16

IV. Conclusion For the foregoing reasons, the United States should not move to enter either the Proposed Consent Decree or either of the other two consent decrees lodged on March 26, 2014, in United States v. NCR Corp., No. 1:10-cv-910 (E.D. Wis.). Those consent decrees should be recrafted in relatively minor ways that should not draw any objection for the defendants. The settlement payments should be available to fund the remedial action in OU2-5 in the event that the Court of Appeals vacates the allocation of responsibility for that work without substituting a different allocation. The settlement payments should be available to fund the remedial action in OU2-5 in the event that the Trustees have been fully compensated for NRDs. The funding of the OU2-5 remedial action from the settlement funds should be above the GP line so that the modification of the consent decrees does not affect the distribution of pro tanto reductions in the governments claims as against NCR, GP, and Glatfelter. Any amounts received by the State should be disbursed to reimburse actual costs of response for this Site as they are incurred, rather than held by the State without reporting or accounting obligations. The State should not be permitted to resolve its liabilities for a payment so out of scale with all other settlement payments. 17

Respectfully submitted, Dated: May 1, 2014 /s/ David G. Mandelbaum David G. Mandelbaum Caleb J. Holmes GREENBERG TRAURIG, LLP 2700 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 215.988.7800 mandelbaumd@gtlaw.com holmesc@gtlaw.com Francis A. Citera GREENBERG TRAURIG, LLP Suite 3100 77 W. Upper Wacker Drive Chicago, IL 60601 312.456.8400 citeraf@gtlaw.com Counsel for P. H. Glatfelter Company 18