Case 2:12-cr-00323-ILRL-DEK Document 14 Filed 02/06/13 Page 1 of 8
U.S. DISTRICT COURT U.S. Department of Justice EASTERN DISTRICT OF LOUISIANA Eastern District of Louisiana
U.S. Attorney's Office
FILED
FEB 0 6 2013
LORETTA G. WHYTE cLERK
Dorothy Manning Taylor
The Poydras Center
Assistant United States Allorney
650 Poydras Street, Suite 1600
:C"I
Telephone: {504) 680-3083 Fax: (504) 589-2027
New Orkans, LA 70130
February 5, 2013 VIA EMAIL Patrick Fanning, Esq. 238 Huey Long Avenue Gretna, LA 70054 Re:
United States v. TIN, Inc., d/b/a/ Temple Inland Criminal No.: 12-323 "B"
Dear Mr. Fanning: In compliance with the holding ofBiyan v. United States, 492 F.2d 775 (1974) and with Rule 11 (c)(l)(C) of the Federal Rules of Criminal Procedure, the Government wishes to acknowledge the following agreement which was reached between the Government and TIN, Inc., d/b/a/ Temple Inland (hereinafter the "Company" or "defendant"), the defendant in the above-captioned proceeding. As defendant's counsel, you have reviewed the tenns of this agreement and have been advised by the Company that the Company fully understands the tenns of this agreement. The Company, by resolution attached hereto, has authorized the named representative to enter into this plea agreement on the Company's behalf. The Government intends to file a Bill oflnfonnation charging the Company with a negligent Clean Water Act violation of Title 33, United States Code, Section 13 l 9(c)(l )(A) and a negligent Refuge Act violation of Title 16, United States Code, Section 668dd(c), for the negligent discharge that occurred at its Bogalusa, Louisiana, facility from August 10, 2011, through August 14, 2011. The Company understands that the maximwn penalty it faces for each count is a fine of up to $200,000, or the greater of twice the gross gain to the defendant or twice the gross loss to any person under Title 18, United States Code, Section 3571. It is also understood that the restitution provisions of Sections 3663 and 3663A of Title 18, United States Code will apply and the Company agrees that any restitution imposed will be nondischargeable in any bankruptcy proceeding and that defendant will not seek or cause to be sought a discharge or a finding of dischargeability as to the restitution obligation. Further, the Company understands that a mandatory special assessment fee of $125 .00 shall be imposed under the provisions of Title 18, United States Code Section 3013 for each count for a
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Case 2:12-cr-00323-ILRL-DEK Document 14 Filed 02/06/13 Page 2 of 8 total of$250.00. This special assessment must be paid on the date of sentencing. Failure to pay this
special assessment may result in the plea agreement being void. Pursuant to Rule l l(c)(l)(C), Federal Rules of Criminal Procedure, and the agreement made between the Government and the Company, the Government and the Company agree and stipulate to the following plea and sentence applicable to this case: (!)
Tue Company shall plead guilty to the Bill of Information, charging the Company with violation of Title 33, United States Code, Section 1319(c)(l)(A), for the negligent discharge of a pollutant into the Pearl River, and with violation of Title 16, United States Code, Section 668dd(c), for the taking offish from the Bogue Chitto Wildlife Refuge, the details of which are more fully set forth in the mutually acceptable Joint Factual Basis submitted herewith.
(2)
In exchange for the Company's guilty plea, the Government agrees that it will not bring any other charges against the Company arising from or related to any and all conduct that occurred in the Eastern District of Louisiana that was revealed by the investigation of the discharge at the Temple Inland Bogalusa paper mill facility, and known to the Government at the time of signing of the plea agreement, including the activities described in paragraph (I) and more specifically set forth in the Joint Factual Statement. Nevertheless, this Plea Agreement is only binding on the United States' s Attorney's Office for the Eastern District of Louisiana and does not bind any other federal, state, or local prosecuting authority. Nothing in this agreement shall be construed to release the defendant from possible related or consequential civil liability (including administrative sanctions) to any individual, legal entity, or the United States.
(3)
Temple Inland has agreed to pay a total of$3.3 million dollars as follows: (a)
Restitution of$ l .2 million. Temple Inland has agreed to pay restitution to the
following entities in the amount of$1.2 million dollars for the hann caused by the negligent discharge to the Pearl River and its tributaries; the loss of Gulf sturgeon (a protected species); and the loss of other aquatic life. i)
Restitution in the amount of$l million dollars shall be paid to the Trust for Public Land ("TPL "), a non-profit non-governmental organization, to be utilized for the acquisition, protection and management of lands and waters within the Pearl River Basin south of the Temple Inland wastewater release site. Properties so acquired by TPL in fee or less-than-fee shall subsequently be conveyed to the United States Fish and Wildlife Service, primarily for the application and administration of Federal perpetual management and protections for end.angered species, native wildlife, and their habitats within the
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Case 2:12-cr-00323-ILRL-DEK Document 14 Filed 02/06/13 Page 3 of 8 Pearl River drainage system. In order of priority, the highest priority land acquisition(s) shall include Gulf Sturgeon habitat. Secondarily, priority will be given to land acquisition(s) that will benefit and protect the habitat of endangered, threatened, or other species of concern within the Pearl River system. Should no priority lands be available for acquisition, the monies may be used to acquire and protect habitats of any native wildlife. Concurrent with the acquisition(s), a portion of the monies may be utilized by TPL, not to exceed fifteen percent, or the USFWS, as appropriate, to cover direct acquisition costs and for other management actions that protect, preserve, and conserve habitat for all species impacted by the Temple Inland release of August 2011. ii)
Restitution in the amount of $200,000 shall be paid for a research study to evaluate the river features of the Pearl River and Bogue Chitto in order to determine the potential benefit for Gulf sturgeon recovery, as well as to forecast potential hydrodynamic and geomorpohlogical changes that will be of interest to the local communities and the state. The research study will provide to USFWS a complete assessment of river morphology, habitat composition, and hydrology. The assessment will include acoustic determination of benthic substrate, bathymetric surveys above and below the structures, hydrodynamic assessments to outline current conditions and to forecast future conditions, and biological monitoring.
(b) Criminal Monetary Penalty of $2.1 million. The government accepts Temple Inland's representation that it has spent approximately $6.35 million in response actions and upgrades for environmental compliance improvements to the Bogalusa Facility since the discharge. See "Exhibit A." In light of the foregoing expenditures and proposed improvements, the government believes the appropriate monetary penalty is $2.1 million dollars: $1.5 million dollar fine and $600,000 commuuity service payment. The Company shall pay the criminal monetary penalty of $2.1 million as follows: i)
Fine. A fine in the amount of$ 1.5 million.
ii) Commuuity Service. Temple Inland will pay (I) $500,000 to the Louisiana Department of Environmental Quality; check payable to the "LDEQ Environmental Trust Fund". This payment is for the exclusive use of LDEQ to defray the costs of equipment and emergency vehicles to be used in connection with, or in support of, the detection, monitoring, testing,
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Case 2:12-cr-00323-ILRL-DEK Document 14 Filed 02/06/13 Page 4 of 8
response and/or investigation of dumping, emissions, discharges, spills, or leaks involving violations ofenvironmental regulations and laws; (2) $50,000 to the Louisiana State Police Emergency Services Unit; check payable to "LSP Hazardous Materials 4629 EPA". This payment shall be for the exclusive use of the LSP Emergency Services Unit; and (3) $50,000 to the Southern Environmental Enforcement Network, check payable to "Southern Environmental Network Enforcement Training Fund". The Company agrees that $600,000.00 shall be paid as an organizational community service payment pursuant to §8B 1.3 of the Federal Sentencing Guidelines and in furtherance of satisfying the sentencing principles provided for under 18 U.S.C. § 3553(a). Because the community service payment is designated as community service by an organization, the Company agrees that it will not seek any reduction in its tax obligations as a result of these payments. In addition, since the payment constitutes community service, the Company will not characterize, publicize, or refer to the payment as a voluntary donation or contribution; (4)
The Company agrees to pay the restitution and criminal monetary penalty in full on the day of sentencing.
(5)
The Company must pay a special assessment of $250.00 on the day of sentencing. Failure to pay this special assessment may result in the plea agreement being void.
(6)
The Company shall be placed on organizational probation for a term of two (2) years pursuant to 18 U.S.C. § 3561(c)(2) and USSG §§SDI.I and 8Dl.2. The Company agrees to abide by the standard conditions of probation as determined by the Court and to include no further violations of the law. The Company further agrees to abide by the following special conditions of probation: (a)
The Company shall pay all restitution, fines, community service and special assessments as set forth herein.
(b)
The Company shall implement an Environmental Compliance Plan (ECP) approved by the Louisiana Department of Environmental Quality and it shall remain in compliance with all permit requirements, rules and regulations of the Louisiana Department of Environmental Quality.
The parties have entered into this plea agreement under Rule 11(c)(l)(C) ofthe Federal Rules of Criminal Procedure with the understanding that the Court will accept or reject the agreement but may not modify its terms. If the District Court modifies any portion of the plea agreement, the Company has the right to withdraw the guilty plea.
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Case 2:12-cr-00323-ILRL-DEK Document 14 Filed 02/06/13 Page 5 of 8 Defendant understands that Title 18, United States Code, Section 3742 and Title 28, United
States Code, Section 1291, may give a crirn.inal defendant the right to appeal its conviction, sentence, restitution, fine, and judgment imposed by the Court. Defendant also understands that it may have the right to file collateral challenges to its conviction and sentence, and judgment, including but not limited to rights provided by Title 28, United States Code, Sections 2255 and 2241, Rule 60 of the Federal Rules of Civil Procedure, Rule 36 of the Federal Rules of Criminal Procedure, and writs of
coram. nobis and audita querela. Defendant further understands that Title 18, United States Code, Section 3582(c)(2) may allow the Court to grant a sentencing reduction to the defendant if the
defendant has been sentenced to a term ofimprisonment based upon a sentencing range that has been subsequently lowered by the United States Sentencing Commission and determined to apply retroactively to defendants who already have been sentenced to a term of imprisonment. Acknowledging these rights, subject only to the exceptions indicated in subsection (d) below,
the defendant, in exchange for the promise(s) and agreement(s) made by the United States in this plea agreement, knowingly and voluntarily: a. Waives and gives up its right to appeal or contest its guilty plea, conviction, sentence, fine, and any restitution imposed by any judge under any applicable restitution statute, including but not limited to its right to appeal any rulings on pretrial motions of any kind whatsoever, as well as
any aspect of his sentence, including but not limited to any and all rights which arise under Title 18, United States Code, Section 3742 and Title 18, United States Code, Section 1291;
b.
Waives and gives up its right to appeal any order, decision, or judgment arising out
of orrelated to Title 18, United States Code, Section 3582(c)(2) imposed by any judge and further
waives and gives up its right to challenge the manner in which its sentence was determined and to challenge any United States Sentencing Guidelines determinations and their application by any judge to the defendant's sentence and judgment; c.
Waives and gives up its right to challenge its sentence collaterally, including but not
limited to any and all rights which arise under Title 28, United States Code, Sections 2255 and 2241, Rule 60 ofthe Federal Rules of Civil Procedure, Rule 36 ofthe Federal Rules of Criminal Procedure,
writs of coram nobis and audita querela, and any other collateral challenges to its sentence of any kind; and
d. The defendant specifically does not waive, and retains the right to bring a direct appeal of any sentence imposed in excess of the statutory maximum. The defendant also retains the right to bring a post conviction challenge if it establishes that ineffective assistance of counsel directly affected the validity of this waiver of appeal and collateral challenge rights or the validity of the guilty plea itself.
The Company further waives any right to seek attorney's fees and/or other litigation expenses under the "Hyde Amendment", Title 18, United States Code, Section 3006A and The Company
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Case 2:12-cr-00323-ILRL-DEK Document 14 Filed 02/06/13 Page 6 of 8 acknowledges that the Government's position in the instant prosecution was not vexatious, frivolous or in bad faith. Further, the Company understands that any discussions with the Company's attorney or anyone else regarding sentencing guidelines are merely rough estimates and the Court is not bound by those discussions. The Company understands that the sentencing guidelines are advisory and are not mandatory for sentencing purposes. The stated $ 3 .3 million dollars set forth above represents the total amount to be paid by the Company pursuant to the guilty plea and no other fine/restitution shall be applicable in this case. The Company agrees that the restitution, fine, and community service will be non-dischargeable in any banlauptcy proceeding and that defendant will not seek or cause to be sought a discharge or a finding of dischargeability as to this obligation. This Plea Agreement shall bind the defendant and its subsidiaries and affiliates, including all subsidiaries and affiliates that manage, operate, and own the Bogalusa Facility. During the two year probation period, the defendant shall provide immediate, written notice to the Government and the U.S. Probation Office of any of the following: (i) any corporate name change, and any purchase, sale, reorganization, transfer of a plurality or controlling interest, or divestiture of the Company, or any other change impacting upon or affecting this Plea Agreement. No change in name, change in corporate or individual control, business reorganization, bankruptcy, change in ownership, merger, change in legal status, sale or purchase of assets, or similar action shall alter or diminish the Company's obligations under this Plea Agreement. The Company further agrees that it will not engage in any business reorganization, transfer ofownership, corporate dissolution, or other business practice in order to avoid the obligations set forth in this Plea Agreement.
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Case 2:12-cr-00323-ILRL-DEK Document 14 Filed 02/06/13 Page 7 of 8
The Company understands that the statements set forth above and the Joint Factual Statement to be filed in the record represent defendant's entire agreement with the Government and that there
are no other agreements, letters or notations that will affect tlris agreement. Sincerely,
DANA J. BOENTE UNI ED STATES ATTORNEY
S atsis Assistant United States Attorney
TIN, Inc., dfb/a/ Temple Inland
B~~O,I~~
Date
Ronnie A. Howell, Corporate Representative
Patrick Fanning
Attorney for defendant
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Case 2:12-cr-00323-ILRL-DEK Document 14 Filed 02/06/13 Page 8 of 8
Tempie Inland Exhibit A Immediate Response Actions and Planned Improvement Projects Completed Projects
Description
Cost
Emergency response
Corrective measures taken in an effort to enhance treatment of
$3.lMM
actions
the black liquor spill in the Mill's aeration stabilization basin (ASB), included the addition of microbial and nutrient
enhancements and de-foaming agents to the wastewater.
Training
Mill equipment upgrades completed within 60 days of the incident.
Response costs in the river to address the injury to fish and wildlife in the river induded the collection and cataloging the number and type offish killed, and subsequentfish and wildlife surveys. The development and implementation of improved standard operating procedures (SOP) for spill prevention and control and training of employees. The installation of eight diversion and collection sumps in the process sewers with redundant conductivity monitors at each location. Conversion of existing process tanks to spill collection. Installation of controls and alarms to provide real time operation status data and notice of running sump pumps. The installation of additional pH and conductivity monitors at the ASB outfall and clarifier.
Planned capital Project Improvements to the Wastewater Treatment System pH Control Screens for Influent Pumps ASB Improvements Storm Water Management Clarifier Improvements Odor/BOD Reduction Influent Pumps Ash Recovery White Liquor Clarifier
Recovery Spill Tank
$.3SMM
$2.9MM
$SOMM (+/- 50%)
Add a C02 system to control pH and protect the biological health of the treatment system spikes in pH caused by spills and/or upsets Maintain reliability of pumps to maintain capacity to manage storm water runoff Increase performance and reliability of the treatment system. To include, but not limited to, dredging and aeration upgrades. Excavate existing storm ponds to restore storage capacity and limit stormwater surge to the ASB Retain capability of maximizing removal of total suspended solids ahead of the ASB. Reduce methanol and other volatile compounds that add BOD loads and odors to the ASB Upgrade capacity of pumps to handle up to a 25 year, 24-hr rain event of about 10 in and avoid overflow to Bogue Lusa Creek Remove 85% +of the boiler ash that would otherwise be discharged to the ASB and reduce treatment capacity Add capacity to store White Liquor Spills that could negatively impact the ASB treatment capacity and performance Add capacity to store Black Liquor Spills that could negatively impact the ASS treatment capacity and performance
