CALDERWOOD & HARKNESS LLP Attorneys at Law
1900 Euclid Avenue, Suite 3200 Cleveland, Ohio 44115 Telephone: (216) 555-8400 Facsimile: (216) 555-8401 www.calderwoodharkness.com
July 25, 2022
Via Email and First-Class Mail
Franklin Speer, Esq. Hargrove, Dalton & Speer LLP 500 Grant Street, Suite 3800 Pittsburgh, PA 15219
Re: Environmental Due Diligence Document Request — Proposed Acquisition of Allegheny Chemical Coatings, Inc. by Crestline Packaging Solutions LLC Calderwood & Harkness Matter No. 1006-00003
cc: Megan Trask, Esq. (Hargrove, Dalton & Speer LLP) Derek Huang, Esq. (General Counsel, Crestline Packaging Solutions LLC) Patricia Okonkwo (VP, Environmental Health & Safety, Crestline Packaging Solutions LLC) Beatrice Holloway, Esq. (Calderwood & Harkness LLP) Harrison Caldwell, Esq. (Calderwood & Harkness LLP)
Dear Mr. Speer:
Introduction and Purpose
Calderwood & Harkness LLP represents Crestline Packaging Solutions LLC ("Crestline" or "CPS") in connection with its proposed acquisition of one hundred percent (100%) of the outstanding common stock of Allegheny Chemical Coatings, Inc. ("ACC" or the "Company"). We write to you in your capacity as outside counsel to ACC with respect to the proposed transaction.
This letter constitutes a formal request for environmental records and documents pertaining to all four ACC operating facilities, as identified more fully below, to be made available in the virtual data room established for this transaction or, where more expedient, delivered electronically to our office for purposes of environmental due diligence. We appreciate your willingness to facilitate the production of these materials and trust that this detailed request list will provide ACC and its personnel with the specificity necessary to identify and compile responsive documents efficiently.
As you are aware, this request is made pursuant to and in accordance with the engagement letter dated July 19, 2022 between Calderwood & Harkness LLP and Crestline, as well as the initial environmental diligence plan communicated to Crestline on July 21, 2022. That diligence plan, a copy of which was circulated to your office, contemplates a comprehensive environmental review of each of the Company's operating facilities and related environmental liabilities, obligations, and compliance posture.
In furtherance of this review, Calderwood & Harkness has retained TerraVerde Environmental Consulting LLC ("TerraVerde"), an Ohio-based environmental consulting firm, to conduct Phase I Environmental Site Assessments under the ASTM E1527-21 standard at all four ACC facilities, with Phase II subsurface investigations to follow as warranted by the findings of the Phase I assessments or by information obtained through this document review process. The principal-in-charge for TerraVerde's engagement is Dr. Nina Sorensen, P.E., CHMM, and the project manager is Kevin O'Malley, P.G. Both Dr. Sorensen and Mr. O'Malley bring substantial experience in environmental due diligence for industrial manufacturing facilities, and their team will be coordinating closely with Calderwood & Harkness's environmental practice group throughout the diligence process.
We note at the outset that timely production of the requested documents will be critical to facilitating the diligence timeline and the parties' mutual objective of progressing toward a targeted fourth quarter 2022 closing. As discussed among counsel on our recent call, both parties recognize the importance of maintaining momentum, and we are committed to working collaboratively with your team and with ACC's environmental, health, and safety staff to conduct an efficient and thorough review.
Identification of Target Facilities
The document requests set forth below apply to the following four ACC operating facilities (collectively, the "Facilities"):
Facility 1 — McKeesport Main Plant (Headquarters)
Address: 2200 Iron Works Boulevard, McKeesport, PA 15132
County: Allegheny County, Pennsylvania Parcel Identification Number: 0383-M-00125-0000-00 Approximate Acreage: 14.3 acres Building Area: Approximately 185,000 square feet of manufacturing space; approximately 12,000 square feet of office space Ownership: Owned in fee simple by ACC since 1987 Operations: Primary solvent-based and epoxy coating manufacturing operations; serves as the Company's corporate headquarters and principal manufacturing facility
Facility 2 — Charleroi Specialty Coatings Plant
Address: 450 Industrial Park Road, Charleroi, PA 15022
County: Washington County, Pennsylvania Parcel Identification Number: 120-015-00-03-0018-00 Approximate Acreage: 8.7 acres Building Area: Approximately 92,000 square feet of manufacturing space; approximately 4,500 square feet of office and laboratory space Ownership: Owned in fee simple by ACC since 2003 Operations: Water-based and UV-curable coatings manufacturing operations
Facility 3 — Clarksburg Resin Blending Facility
Address: 1875 Route 50 West, Clarksburg, WV 26301
County: Harrison County, West Virginia Parcel Identification Number: 04-0012-0056-0000 Approximate Acreage: 5.2 acres Building Area: Approximately 48,000 square feet of warehouse and blending space; approximately 3,000 square feet of office space Ownership: Leased from Mountainview Properties LLC Operations: Resin receipt, blending, and redistribution
Facility 4 — Weirton Warehouse & Distribution Center
Address: 600 Commerce Way, Weirton, WV 26062
County: Hancock County, West Virginia Parcel Identification Number: 07-0304-0012-0000 Approximate Acreage: 3.1 acres Building Area: Approximately 65,000 square feet of warehouse space; approximately 2,000 square feet of office space Ownership: Leased from Northern Panhandle Realty Corp. Operations: Finished goods storage and distribution (no manufacturing activities)
Unless otherwise specified, each document request below applies to all four Facilities. Where a request is specific to a particular Facility, that Facility is identified by name.
Document Request Categories
We respectfully request that ACC compile and produce the following categories of documents. The descriptions below are intended to provide guidance as to the scope and types of documents sought, but should not be construed as limiting. Where ACC possesses documents that are responsive to the general subject matter of a category but are not specifically described, we ask that such documents be produced as well.
Category 1: Environmental Permits and Applications
We request production of all current environmental permits, licenses, registrations, approvals, and authorizations issued by any federal, state, or local environmental regulatory agency for any of the Facilities, including but not limited to:
(a) Clean Air Act permits, including Title V operating permits, state-only operating permits, registration permits, permits to install and/or construct, New Source Review (NSR) and Prevention of Significant Deterioration (PSD) permits, and any other air quality permits or authorizations. We are aware that the following air permits are currently held by ACC and request production of each, together with all associated conditions, attachments, and compliance schedules:
(i) Pennsylvania Department of Environmental Protection (PA DEP) Title V Operating Permit No. TV-0383-0125 for the McKeesport facility;
(ii) PA DEP State-Only Operating Permit No. 63-00982 for the Charleroi facility; and
(iii) West Virginia Department of Environmental Protection (WV DEP) Registration Permit No. R13-3201 for the Clarksburg facility.
(b) Clean Water Act and National Pollutant Discharge Elimination System (NPDES) permits, including NPDES Permit No. PA0025631 for the McKeesport facility, and any other individual or general NPDES permits held by ACC for any Facility.
(c) Resource Conservation and Recovery Act (RCRA) permits or interim status documents for any Facility.
(d) State and local wastewater discharge permits, including any industrial pretreatment permits or sewer use permits issued by municipal authorities for any Facility.
(e) Stormwater management permits, including any coverage under state or federal multi-sector general permits, and all Stormwater Pollution Prevention Plans (SWPPPs) for each Facility.
(f) Any other environmental permits, registrations, or authorizations not described above, including but not limited to underground storage tank (UST) registrations, aboveground storage tank (AST) registrations, radiation source licenses, and hazardous materials storage permits.
In addition to current permits, we request production of:
(g) All pending permit applications, renewal applications, and modification applications for any Facility, including specifically the pending Title V permit modification application for the new thermal oxidizer on Line 4 at the McKeesport facility, which we understand was submitted to PA DEP in or about March 2022. We request the complete application package, any supplementary materials submitted, and all correspondence with PA DEP regarding the status of that application.
(h) Historical permits for each Facility for the entire period of ACC's ownership or occupancy, to the extent such historical permits remain in ACC's possession, custody, or control.
Category 2: RCRA and Hazardous Waste Records
We request production of the following records relating to hazardous waste generation, management, treatment, storage, disposal, and transportation at each of the Facilities:
(a) EPA identification numbers for all Facilities. We are aware of the following EPA identification numbers and request confirmation of their accuracy, as well as production of any additional EPA IDs associated with ACC operations:
(i) McKeesport: PAD-098-721-445;
(ii) Charleroi: PAD-112-583-667; and
(iii) Clarksburg: WVD-054-319-882.
(b) Generator status documentation for each Facility, including the current and historical generator classification (Large Quantity Generator, Small Quantity Generator, Conditionally Exempt Small Quantity Generator, Very Small Quantity Generator, or non-generator) for each Facility and supporting documentation for such classification, including waste volume calculations.
(c) Hazardous waste manifests (Uniform Hazardous Waste Manifests, EPA Form 8700-22 and 8700-22A) for the past five years (2017 through the present) for all Facilities.
(d) Biennial hazardous waste reports (EPA Form 8700-13A/B) for all Facilities reporting as Large Quantity Generators or Small Quantity Generators, for all reporting years during the past ten years.
(e) Waste characterization and determination records, including waste stream profiles, laboratory analytical results supporting waste determinations, and records of the knowledge-based determinations made by ACC personnel for each waste stream generated at each Facility.
(f) Land Disposal Restriction (LDR) notifications and certifications accompanying shipments of hazardous waste for land disposal.
(g) Contingency plans and personnel training records required under RCRA Subtitle C regulations (40 C.F.R. Parts 262, 264, and 265, as applicable), including documentation of annual RCRA training for each Facility.
(h) Records of any RCRA corrective action, consent orders, administrative proceedings, or enforcement actions involving any of the Facilities, including any pending or resolved matters.
Category 3: Air Emission Reports and Compliance Records
We request production of the following air quality and emission-related records for each of the Facilities:
(a) Annual emission statements and emission inventories for the past five years (2017 through the present), as submitted to PA DEP or WV DEP, as applicable, for all Facilities.
(b) Title V compliance certifications for the McKeesport facility for all years during which the Title V operating permit has been in effect.
(c) Continuous emission monitoring system (CEMS) data, if any, from any Facility, including quality assurance/quality control (QA/QC) records, relative accuracy test audit (RATA) results, and cylinder gas audit (CGA) results.
(d) Stack test results and performance test reports from any source testing conducted at any Facility during the past ten years, including test protocols, raw data, and final reports.
(e) Maximum Achievable Control Technology (MACT) compliance documentation, including any initial notifications, performance test results, and ongoing compliance records required under any applicable National Emission Standards for Hazardous Air Pollutants (NESHAP) standard, if applicable to any Facility's operations.
(f) Records of any deviation reports, excess emission reports, or startup, shutdown, and malfunction (SSM) notifications submitted to PA DEP or WV DEP for any Facility during the past five years.
(g) Hazardous air pollutant (HAP) emission calculations for each Facility, including all supporting documentation, emission factors, material usage data, and engineering calculations. We are particularly interested in the documentation supporting the reported combined HAP emissions of approximately 38.2 tons per year at the McKeesport facility, given that the major source threshold under Section 112 of the Clean Air Act is 25 tons per year of combined HAPs, and request all records relating to the McKeesport facility's classification as a major source of HAPs.
Category 4: Clean Water Act / NPDES and Water Discharge Records
We request production of the following water quality and discharge-related records for each of the Facilities:
(a) Discharge Monitoring Reports (DMRs) for the past five years (2017 through the present) for all Facilities holding NPDES permits or other wastewater discharge permits.
(b) Records of any DMR exceedances or permit limit violations during the past five years, together with all related self-reporting correspondence, notifications to PA DEP or WV DEP, and documentation of corrective actions implemented. We are aware of a March 2022 total suspended solids (TSS) exceedance at the McKeesport facility, in which reported TSS concentrations of 48 mg/L exceeded the applicable permit limit of 40 mg/L, and request all records relating to that exceedance, including the DMR reflecting the exceedance, the self-reporting correspondence submitted to PA DEP, PA DEP's response (if any), and documentation of any corrective actions taken by ACC to prevent recurrence.
(c) Stormwater monitoring and inspection reports, including any wet-weather and dry-weather sampling results and routine facility inspection reports required under applicable stormwater general permits for each Facility.
(d) Pretreatment program records, if applicable, including any industrial user permits, baseline monitoring reports, compliance monitoring reports, and self-monitoring data submitted to municipal wastewater treatment authorities.
(e) Spill Prevention, Control, and Countermeasure (SPCC) plans for each Facility, including the current plan and any amendments or updates made during the past five years.
Category 5: EPCRA, TRI, and Community Right-to-Know Filings
We request production of the following records relating to emergency planning, community right-to-know, and toxic chemical release reporting for each of the Facilities:
(a) Toxic Release Inventory (TRI) Form R and Form A filings for the past five years (reporting years 2017 through 2021) for all Facilities subject to TRI reporting. We are aware that ACC's 2021 TRI filings for the McKeesport facility report releases of approximately 12,400 pounds of toluene and approximately 8,700 pounds of xylene, and request production of all TRI filings reflecting these and all other reported releases, transfers, and waste management activities.
(b) Tier II Emergency and Hazardous Chemical Inventory reports filed with local emergency planning committees (LEPCs), state emergency response commissions (SERCs), and local fire departments pursuant to EPCRA Section 312, including all filings with the Allegheny County LEPC for the McKeesport facility and all analogous filings for the remaining Facilities for the past five years.
(c) EPCRA Section 302 extremely hazardous substance (EHS) notifications, if any, including any threshold planning quantity (TPQ) exceedance notifications submitted to LEPCs or SERCs.
(d) EPCRA Section 304 emergency release notification records, if any, including notifications to LEPCs, SERCs, and the National Response Center.
(e) Material Safety Data Sheets and Safety Data Sheets (MSDSs/SDSs) maintained by ACC for employee right-to-know and community right-to-know programs, or, at a minimum, a comprehensive index or listing of all chemicals for which MSDSs/SDSs are maintained at each Facility.
Category 6: Spill and Release Reports
We request production of all records relating to reportable spills, releases, and discharges to the environment for the past ten years (2012 through the present) at all Facilities, including but not limited to:
(a) Incident reports and documentation regarding the following known release events:
(i) The June 14, 2017 xylene spill at the McKeesport facility, involving an estimated 50 gallons of xylene released due to a ruptured transfer hose. We understand that the spill was contained within secondary containment, reported to PA DEP, and that PA DEP issued a No Further Action (NFA) determination. We request all documentation relating to this incident, including internal incident reports, notifications to PA DEP, PA DEP's response, photographs, sampling data (if any), and cleanup records.
(ii) The February 3, 2020 epoxy resin hardener release at the McKeesport facility, involving an estimated 120 gallons of hardener released to a floor drain connected to the sanitary sewer system. We understand that the release was reported to PA DEP and the Allegheny County Health Department, and that ACC was assessed a fine of $4,500. We further understand that corrective actions were completed, including floor drain sealing and installation of additional secondary containment. We request all documentation relating to this incident, including internal incident reports, notifications to PA DEP and the Allegheny County Health Department, the enforcement action and fine assessment, ACC's response and corrective action documentation, photographs, and any consent order or settlement agreement.
(b) Emergency response reports for any spill, release, or discharge event at any Facility.
(c) Notifications submitted to any federal, state, or local agency regarding any release or threatened release of hazardous substances, hazardous wastes, petroleum products, or other pollutants at any Facility.
(d) Internal spill logs, incident reports, near-miss reports, and environmental incident tracking records maintained by ACC for any Facility.
(e) Records of any enforcement actions, consent orders, notices of violation (NOVs), administrative orders, compliance orders, and settlement agreements related to any spill, release, or discharge event at any Facility.
Category 7: Remediation and Cleanup Records
We request production of all records relating to environmental investigation and remediation activities at any of the Facilities, including but not limited to the following:
(a) McKeesport — PA DEP Act 2 Program: All records relating to the PA DEP Act 2 (Land Recycling and Environmental Remediation Standards Act) filing opened in 1994 in connection with the removal of three underground storage tanks (each with a capacity of approximately 10,000 gallons) from the McKeesport facility in 1993. We understand that a No Further Action (NFA) letter was issued by PA DEP in May 2001 under the Statewide Health Standard for soils. We request all associated investigation reports (including preliminary assessments, site characterizations, and confirmatory sampling reports), laboratory analytical data and chain-of-custody documentation, correspondence with PA DEP, the Act 2 cleanup plan, the NFA letter, and all closure documentation.
(b) Clarksburg — UST Removal and Residual Contamination: All records relating to the removal of one 15,000-gallon diesel underground storage tank at the Clarksburg facility in 2012 by the prior tenant, Valley Freight Lines Inc. We understand that the WV DEP assigned Site ID WVUST-2012-04887 to this matter and that a closure letter was issued by WV DEP in March 2013. We further understand that residual diesel-range organics (DRO) remain above WV DEP action levels beneath the former UST cavity, and that institutional controls were recorded at the Harrison County Clerk's Office in Book 1245, Page 312. We request all investigation reports, soil and groundwater sampling results, laboratory analytical data, WV DEP correspondence, the closure letter, and all documentation relating to the recorded institutional controls, including the land-use restriction instrument itself.
(c) Weirton — Voluntary Remediation and Redevelopment Program (VRDP): All records relating to the West Virginia Voluntary Remediation and Redevelopment Program (VRDP) Certificate of Completion issued in September 2015 for the Weirton facility. We understand that engineering controls (consisting of a cap over impacted areas) and institutional controls are in place at the site, and that a deed restriction was recorded at the Hancock County Clerk's Office in Book 487, Page 89. We request all VRDP application materials, environmental investigation reports (including Phase I and Phase II assessments), remedial action plans, construction completion reports, the Certificate of Completion, post-remediation monitoring reports, and the recorded deed restriction.
(d) Any ongoing monitoring programs, operation and maintenance (O&M) plans and records, or institutional control and engineering control compliance records at any of the Facilities, including any periodic reporting or certification obligations to PA DEP, WV DEP, or local agencies.
(e) Any other records of environmental investigation, assessment, or remediation at any of the Facilities not specifically described above.
Category 8: Underground Storage Tank (UST) Records
We request production of the following records relating to underground storage tanks at all Facilities:
(a) UST registration and notification records for all current and former USTs at all Facilities, including registrations with PA DEP and WV DEP.
(b) UST closure records, including tank closure assessments, excavation and disposal records, confirmation soil and groundwater sampling results, and closure reports. We specifically note the three USTs removed at the McKeesport facility in 1993 and the one diesel UST removed at the Clarksburg facility in 2012, as described in Category 7 above.
(c) UST insurance or financial assurance documentation, including any certificates of financial responsibility required under applicable federal or state UST regulations.
(d) Records of UST leak detection testing, including any tightness testing, automatic tank gauging records, statistical inventory reconciliation (SIR) reports, and interstitial monitoring records for any currently active USTs at any Facility.
(e) Records of any UST releases, suspected releases, or confirmed releases not otherwise described in Category 6 or Category 7 above.
Category 9: Asbestos Records
We request production of the following records relating to asbestos and asbestos-containing materials at all Facilities:
(a) Asbestos surveys, inspections, and bulk sampling results for all Facilities, including building surveys conducted by any certified asbestos inspector.
(b) Asbestos-containing material (ACM) inventories for each Facility. We are aware that the McKeesport main plant has been identified as containing ACM, including pipe insulation in Buildings A and B (estimated at approximately 2,400 linear feet) and floor tiles in Building A (estimated at approximately 14,000 square feet), and request production of the survey or inspection reports supporting those findings, as well as any ACM inventories for the remaining Facilities.
(c) Asbestos Operations and Maintenance (O&M) Plans for each Facility, including specifically the O&M Plan dated September 2019 for the McKeesport facility, and any predecessor or subsequent O&M plans.
(d) Records of any asbestos abatement, removal, encapsulation, or enclosure projects conducted at any Facility, including project designs, air monitoring results, final clearance reports, and waste manifests.
(e) Asbestos Hazard Emergency Response Act (AHERA) compliance records, if any school buildings or public-access buildings are associated with any Facility.
(f) National Emission Standards for Hazardous Air Pollutants (NESHAP) notifications related to renovation or demolition activities at any Facility, as required under 40 C.F.R. Part 61, Subpart M.
Category 10: Lead-Based Paint Records
We request production of the following records relating to lead-based paint at all Facilities:
(a) Lead-based paint surveys and inspection reports for all Facilities, including any XRF (X-ray fluorescence) testing reports, paint chip sampling results, and risk assessments.
(b) Documentation of the 2019 lead-based paint survey conducted at the McKeesport office building (constructed circa 1955), which we understand identified lead-based paint on both interior and exterior surfaces. We request the complete survey report, including all sampling data, floor plans or sketches identifying the location and condition of lead-based paint, and any recommendations made by the surveyor.
(c) Lead-based paint management plans for each Facility where lead-based paint has been identified, including any interim control measures implemented.
(d) Records of any lead abatement activities conducted at any Facility, including abatement designs, clearance testing results, and waste disposal records.
(e) Worker protection and monitoring records related to lead exposure at any Facility, including any lead exposure assessments, personal air monitoring results, blood lead level testing results, and compliance documentation under the OSHA Lead Standards (29 C.F.R. §§ 1910.1025 and 1926.62).
Category 11: TSCA Compliance Records
We request production of the following records relating to compliance with the Toxic Substances Control Act (TSCA) at all Facilities:
(a) Polychlorinated biphenyl (PCB) surveys and equipment inventories for all Facilities, including inventories of PCB-containing equipment (transformers, capacitors, hydraulic systems, and other equipment), PCB article inventories, and any PCB concentration testing results.
(b) PCB disposal records, including manifests, certificates of disposal or destruction, and any annual PCB disposal documentation required under 40 C.F.R. Part 761.
(c) TSCA Chemical Data Reporting (CDR) filings (formerly Inventory Update Reporting) submitted by ACC for any chemicals manufactured, imported, or processed at any Facility.
(d) Records of any TSCA Section 5 new chemical notifications (premanufacture notices or significant new use notices) submitted by ACC.
(e) Any TSCA consent orders, enforcement actions, or compliance agreements involving ACC or any of the Facilities.
Category 12: CERCLA / Superfund Records
We request production of the following records relating to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and state superfund programs:
(a) Records of any involvement of ACC as a potentially responsible party (PRP) in any CERCLA action, state superfund action, or equivalent state-law cleanup proceeding, whether at any of the Facilities or at any off-site location to which ACC has sent or arranged for the disposal of hazardous substances.
(b) Notice letters, general notice letters, special notice letters, information requests under CERCLA Section 104(e), or demand letters received by ACC from EPA, PA DEP, WV DEP, or any other federal, state, or local agency in connection with any CERCLA or state superfund matter.
(c) Records of any contribution claims, cost recovery actions, or allocation proceedings in which ACC is or has been a party, whether as a plaintiff, defendant, or third-party defendant.
(d) Documentation regarding the proximity of the McKeesport facility to the former Irwin Iron & Steel Superfund site (listed on the National Priorities List in 1989; Record of Decision issued in 1996; construction complete designation in 2004), including any correspondence with EPA or PA DEP regarding any potential connection between the McKeesport facility's operations or waste disposal history and the Irwin Iron & Steel site, and any PRP search information requests received by ACC in connection with that site.
Category 13: Environmental Site Assessments and Reports
We request production of all environmental assessment reports and studies that have been prepared for any of the Facilities, including but not limited to:
(a) All Phase I Environmental Site Assessments previously commissioned by ACC, or received by ACC from prior owners, landlords, or lenders, for any of the Facilities.
(b) All Phase II Environmental Site Assessments, subsurface investigations, soil and groundwater sampling reports, or other intrusive environmental investigations conducted at any of the Facilities.
(c) All environmental compliance audits, whether conducted internally by ACC personnel or by third-party consultants, for any of the Facilities.
(d) Geotechnical investigations or hydrogeological studies conducted at any of the Facilities, including any groundwater flow modeling or contaminant transport analyses.
(e) Indoor air quality assessments or vapor intrusion assessments conducted at any of the Facilities, including any sub-slab soil gas sampling, indoor air sampling, or vapor intrusion pathway evaluations.
(f) Any environmental risk assessments, exposure assessments, or health risk evaluations conducted at any of the Facilities.
Category 14: Environmental Insurance Policies
We request production of the following environmental insurance records:
(a) All current and historical environmental liability insurance policies, including Pollution Legal Liability (PLL) policies, Environmental Impairment Liability (EIL) policies, contractors pollution liability policies, and any other insurance policies providing coverage for environmental liabilities, contamination, or remediation costs at any of the Facilities.
(b) Policy declarations pages, coverage forms, endorsements, exclusions, and conditions for each such policy.
(c) Claims history under any environmental insurance policy, including records of any claims submitted, claims denied, claims settled, and any ongoing claims.
Category 15: Correspondence with Regulatory Agencies
We request production of the following records of communications with environmental regulatory agencies:
(a) All correspondence with EPA, PA DEP, WV DEP, the Allegheny County Health Department, and any other federal, state, or local environmental regulatory agency for the past ten years (2012 through the present) for all Facilities, to the extent not already produced in response to other categories in this request.
(b) Records of all regulatory inspections at any Facility during the past ten years, including inspection reports, inspection summaries, photographs, and any follow-up correspondence. We are specifically aware of the April 14, 2021 PA DEP RCRA inspection at the McKeesport facility, at which we understand no violations were noted, and request production of the inspection report and any associated correspondence.
(c) All notices of violation (NOVs), consent orders, administrative orders, compliance orders, compliance schedules, and penalty assessments issued by any regulatory agency to ACC or to any of the Facilities during the past ten years, together with ACC's responses thereto and any settlement agreements or consent decrees resolving such matters.
(d) Any voluntary disclosure submissions or self-audit disclosures submitted by ACC to any environmental regulatory agency under any applicable voluntary disclosure or audit privilege program.
Category 16: Environmental Management Systems and Policies
We request production of the following records relating to ACC's environmental management and compliance programs:
(a) Environmental management system (EMS) documentation, including any ISO 14001 certification or equivalent environmental management system documentation, environmental policy statements, aspects and impacts registers, objectives and targets documentation, and management review records.
(b) Internal environmental policies, procedures, and standard operating procedures (SOPs) applicable to environmental compliance at any Facility.
(c) Environmental, health, and safety (EHS) staffing information and organizational charts, including the role and responsibilities of Carl Johannsen, EHS Manager, and any other personnel with environmental compliance responsibilities at each Facility.
(d) Environmental training records for the past three years, including records of RCRA training, SPCC training, stormwater awareness training, and any other environmental compliance training provided to ACC employees.
(e) Internal environmental audit reports and corrective action tracking records, including any findings, action items, and documentation of corrective actions taken.
Category 17: Lease Environmental Provisions
We request production of the following records relating to environmental provisions in the leases for the two leased Facilities:
(a) Complete copies of the leases for the Clarksburg facility (tenant: ACC; landlord: Mountainview Properties LLC; lease commencement date: January 1, 2015; term: 15 years; structure: triple-net) and the Weirton facility (tenant: ACC; landlord: Northern Panhandle Realty Corp.; lease commencement date: March 1, 2018; term: 10 years; structure: double-net), with particular attention to any environmental provisions, environmental indemnification clauses, environmental surrender conditions, and baseline environmental assessment requirements contained therein.
(b) Any baseline environmental assessments, environmental condition reports, or pre-lease environmental inspections prepared in connection with the commencement of either lease.
(c) All correspondence between ACC and the respective landlords regarding environmental matters, including any notifications of contamination, requests for environmental remediation, or disputes regarding environmental obligations.
(d) Any environmental amendments, side letters, or addenda to either lease addressing environmental conditions, responsibilities, or liabilities.
Category 18: Capital Expenditure and Budget Records (Environmental)
We request production of the following financial records relating to environmental matters:
(a) Capital expenditure records for environmental compliance projects for the past five years (2017 through the present) at all Facilities, including project descriptions, cost summaries, and authorization records.
(b) Projected environmental capital expenditure budgets for the current fiscal year and any future fiscal years for which budgets have been prepared, including any capital projects planned in connection with the new thermal oxidizer installation at the McKeesport facility or any other anticipated regulatory compliance requirements.
(c) Accruals, reserves, or contingent liability estimates for environmental liabilities recorded on ACC's books, including any environmental remediation liabilities, asset retirement obligations related to environmental conditions, and any other environmental cost provisions, together with supporting documentation for such accruals or reserves.
Format and Production Instructions
To facilitate efficient review by Calderwood & Harkness and TerraVerde, we respectfully request that the documents be organized by facility and then by category within the virtual data room. Specifically, we suggest the following folder structure:
Top-Level Folders:
• McKeesport Main Plant (Facility 1)
• Charleroi Specialty Coatings Plant (Facility 2)
• Clarksburg Resin Blending Facility (Facility 3)
• Weirton Warehouse & Distribution Center (Facility 4)
• Company-Wide / General
Subfolders within each Facility folder (and the Company-Wide folder, as applicable):
• Category 01 — Environmental Permits and Applications
• Category 02 — RCRA and Hazardous Waste Records
• Category 03 — Air Emission Reports and Compliance Records
• Category 04 — Clean Water Act / NPDES and Water Discharge Records
• Category 05 — EPCRA, TRI, and Community Right-to-Know Filings
• Category 06 — Spill and Release Reports
• Category 07 — Remediation and Cleanup Records
• Category 08 — Underground Storage Tank Records
• Category 09 — Asbestos Records
• Category 10 — Lead-Based Paint Records
• Category 11 — TSCA Compliance Records
• Category 12 — CERCLA / Superfund Records
• Category 13 — Environmental Site Assessments and Reports
• Category 14 — Environmental Insurance Policies
• Category 15 — Correspondence with Regulatory Agencies
• Category 16 — Environmental Management Systems and Policies
• Category 17 — Lease Environmental Provisions
• Category 18 — Capital Expenditure and Budget Records (Environmental)
We further request that ACC prepare and produce an index or log of all documents produced, identifying for each document the category and Facility to which it relates, the document date, and a brief description of its contents. Such an index will greatly assist our team in tracking the completeness of the production and identifying any gaps.
In the event that any responsive documents are not in the English language, we request that certified English-language translations accompany such documents.
Finally, we note that both Calderwood & Harkness and TerraVerde team members will require access to the virtual data room. We request that the following individuals be granted access at the earliest practicable date:
Calderwood & Harkness LLP: