DSHW-2023-000527 - 0901a068811687d1

Deq submit <[e-mail]>
RE: New Thatcher tolling agreement
1 message
Haley Sousa <[e-mail]>Fri, Jan 20, 2023 at 12:48 PM
To: "[e-mail]" <[e-mail]>
Cc: "[e-mail]" <[e-mail]>, "Hansen, Doug" <[e-mail]>,
"[e-mail]" <[e-mail]>
Hi Ben,
See fully executed tolling agreement regarding NOV Docket No. 2207087.
Cheers,
Haley Sousa
Assistant Aorney General
Environment/Health & Human Services Division
From: [e-mail] <[e-mail]>
Sent: Thursday, January 19, 2023 3:51 PM
To: Haley Sousa <[e-mail]>
Subject: RE: New Thatcher tolling agreement
Hi Haley –
See aached. Let me know if you have any concerns. Otherwise once you sign just send it back along so I have a copy
for my files.
Thanks,
Ben
Benjamin Machlis
State of Utah Mail - RE: New Thatcher tolling agreement
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DSHW-2023-000527
Partner, Regulatory Affairs Practice Group Chair
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2023-01-20 Thatcher Tolling Agreement (Final)-v2.pdf
490K
State of Utah Mail - RE: New Thatcher tolling agreement
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4886-5092-2059\1
TOLLING AGREEMENT
The State of Utah, on behalf of the Utah Department of Environmental Quality, Division
of Waste Management and Radiation Control (the “Division”), and Thatcher Company, Inc.
(“Thatcher”), collectively referred to as the “Parties,” enter into the following Tolling
Agreement.
WHEREAS, on November 1, 2022, the Division issued a Notice of Violation and
Compliance Order (“NOV/CO”), Docket No. 2207087, alleging potential violations (“Tolled
Claims”) of the Utah Solid and Hazardous Waste Act in Utah Code § 19-6-101 et. seq. and Utah
Administrative Code R315-1 et. seq. (the “Rules”).
WHEREAS, on November 9, 2022, the Division and Thatcher entered into an agreement to
toll the running of the statute of limitation and any appeal period potentially applicable to any
action brought by the Director on the Tolled Claims from November 1, 2022 to January 1, 2023.
The Parties, in consideration of the covenants set out in this Tolling Agreement, agree as
follows:
1. Notwithstanding any other provision of this Tolling Agreement, the period commencing
on January 1, 2023, and ending on June 30, 2023 (the “Tolling Period”), shall not be
included in computing the running of any statute of limitations or appeal period
potentially applicable to any actions brought by the Division on the Tolled Claims.

2. In any action brought on the Tolled Claims, Thatcher shall not assert, plead, or raise
against the Division in any fashion, whether by answer, motion or otherwise, any claim,
defense, or avoidance based on the running of any statute of limitations, laches, or other
timeliness defenses during the Tolling Period, and any statute of limitations shall be
tolled during and for the Tolling Period.

3. Thatcher reserves the right to assert all responses and defenses to the Division’s Tolled
Claims, including but not limited to statutes of limitations, laches, or other timeliness
defenses, with the sole exception of defenses based on the passage of time during the
Tolling Period. This Tolling Agreement shall not be deemed to revive any claims that, as
of January 1, 2023 are barred, in whole or in part, by any statute of limitations or by the
doctrine of laches, or other timeliness defenses; and this Tolling Agreement shall not
prevent Thatcher from asserting that any Tolled Claims have expired, are untimely or
are unduly delayed, so long as grounds exist for such assertions aside from the passage of
time during the Tolling Period.

4. Nothing in this Tolling Agreement constitutes an admission by Thatcher or alters the
claims or defenses available to any Party, except as specifically provided in this Tolling
Agreement.

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4886-5092-2059\1
5. This Tolling Agreement does not alter any statement in the November 1, 2022, NOV/CO
issued to Thatcher and does not alter Thatcher’s obligation to comply with any
applicable environmental laws in the Utah Solid and Hazardous Waste Act or the Rules.

6. Any Party may terminate this Tolling Agreement under this paragraph for any reason
and without cause. This Tolling Agreement shall automatically terminate on June 30,
2023, unless:

a. terminated at an earlier date by prior written notice of the Party wishing to
terminate, sent by certified mail or registered mail, return receipt requested,
addressed to the Parties at the addresses indicated below; or

b. extended by written agreement signed by all Parties.

7. Any termination prior to June 30, 2023, shall not be effective until thirty (30) days after
the date of sending a written notice described in Paragraph 6(a). A Party giving such
notice shall specify the exact date on which the termination first becomes effective. That
date cannot extend beyond June 30, 2023 even if the effective date will be less than thirty
(30) days after the date of sending a written notice described in Paragraph 6(a). This
Agreement will always automatically terminate on June 30, 2023 unless extended by a
written agreement signed by all Parties under Paragraph 6(b).

8. All notices or other written communications under this Agreement shall be sent by mail
or email to:

a. If to the Division:
Douglas J. Hansen
Director, Division of Waste Management and Radiation Control
Email: [e-mail]

With a copy to:
Haley Sousa
Assistant Attorney General, Utah Office of the Attorney General
Email: [e-mail]

b. If to Thatcher:
Craig Thatcher, President
Thatcher Company, Inc.
PO Box 27497
Salt Lake City, UT 84104

With a copy to:

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4886-5092-2059\1
M. Benjamin Machlis
Dorsey & Whitney LLP
counsel for Thatcher Company, Inc.
Email: [e-mail]

9. This Tolling Agreement is not intended to affect any claims by or against third parties.

10. This Tolling Agreement is effective upon execution by the Parties, and without the
requirement of filing with any Court, and may be signed in counterparts.

11. This Tolling Agreement contains the entire agreement between the Parties as to this
subject, and no statement, promise, or inducement made by any Party to this Tolling
Agreement that is not set forth in this Tolling Agreement shall be valid or binding, nor
shall it be used in construing the terms of this Tolling Agreement as set forth in this
Tolling Agreement.

12. The undersigned counsel of each Party certifies that he or she is authorized to enter into
the terms and conditions of this Tolling Agreement, and to execute for and bind the Party
whom he or she represents for purposes of this Tolling Agreement.
IN WITNESS WHEREOF, the Parties execute this Tolling Agreement.

________________________________ Date: ___________________
Haley Sousa, Assistant Attorney General
Counsel for
Utah Department of Environmental Quality
Division of Waste Management & Radiation Control

/s/ M. Benjamin Machlis January 20, 2023
________________________________ Date: ___________________
M. Benjamin Machlis
Dorsey & Whitney LLP
Counsel for
Thatcher Company, Inc.

January 20, 2023