Document mBm47X4y1GEL65evOExnodDvQ
LATHAM & WATKINS
ATTORNEYS AT LAW 1001 .IN*VIVANIA AVCNUC, L W
U<TI 1*00 WAShinOTQN, O.C. J0004.3300
TELEPHONE laoi) *37.*100
}~ U
P, 2
TO: SUBJECT:
Sponsors of Hydrolysis Testing
filb no:
January 31, 1989 015237-0000
William K, Rawson
TOPICS TO. Robert M. Susstaar.
Status of.Hvdrolvsls Testing
Attached is a memo summarizing yesterday's visit to ATS. We recommend that a conference call be scheduled to addr*?7 th following issues.
1. Whether to proceed with ATS or switch to MRX or another laboratory. MRI has a window of availability, but needs to know this week if MCIA wants to switch laboratories.
2. Whether to accept contract modifications proposed by ATS.
3. Whether to reguest more than a two month extension of the due date for submission of the final report. Based on recent telephone calls with ERA, we believe a longer extension would be granted.
We are trying to arrange a conference call for this afternoon at four o'clock.
VEV 000043344
By l]:o2
LATHaM & WATKINS WASH.
LATHAM A WATKINS
ATTORNEYS AT LAW lOOt PENNSYLVANIA AVENUE, N.W.
Suite 1300
WAtHINOTON. O.C. *0604-2909
TELEPHONE (COE) Ell'SEOO
f. 3
toi Sponsors of Hydrolysis Testing
from;
SUBJECT!
William x. Ravson Visit to ATS
date:
January 31, 1989
FILE NOi 015237-0000
copies ro: Robert M. Sussman
On Monday, January 30, 1989, I visited ATS with Ed Hobbs (Dow Corning) and Dan Markham and Tim Liekly (Dow Chemical). The following is a report of the visit.
(1) Technical Issues. Ed Hobbs, Tim Liekly and Dan Markham toured the facility and spoke with Phil Simon at length concerning recent technical difficulties with the hydrolysis testing. I spoke with all three afterwards. Tim and Dan appear satisfied that ATS has identified and solved the hardware problem that resulted in low recoveries and high variability of test r suits. Tim stated that he felt ATS was analytically wellequipped to perform the testing. He noted that ATS performs this typ of analysis (USBPA standard method 601) routinely. The principal open question pertains to biological contamination
bsarved in some of the test samples. Tim said he would like to address this issue with Gary Xlecka at Dow Chemical, to determine whether this presents a problem. However, he noted that ATS has identified steps that might be taken to eliminate the biological o ntamination. Overall, Tim and Dan appear to have a fairly high level of confidence in ATS' ability to perform the required testing. I have asked that Tim, Dan or Gary Xlecka participate in ur conference call to provide a more detailed report and answer questions.
(2) Contract Issues. I spent most of my time addressing contract Issues, first with Phil Simon's attorney, then with both Phil Simon and his attorney, then with the att may (following a consultation between Phil Simon and his att may), and finally one last session with both. Host of their suggested changes were minor and appear acceptable. (See attached draft marked to show ell requested changes.) However, there was a significant disagreement concerning the indemnity provisions in paragraphs 15 (pertaining to failure to comply with the final rule and OLPs) and 26 (pertaining to property damage and personal injury claims arising out of ATS' tasting a tivities). ATS requested that their liability under each provision be limited to the amount paid under the contract, tfa
J AN, 31 89 11:52 LATHAM & WATKINS WASH. D. C.
rejected this approach with respect to both paragraphs* We said there should be no ceiling on paragraph 26, and they agreed. We suggested capping liability under paragraph 15 at the amount of ATS' insurance coverage, and they did not argree. Phil Simon proposed a cap at five times the amount paid under the contract. His argunents in support of this position were as followst (1) the contract is too small to justify greater liability; (2) a p tential penalty of five times the contract price (at least $50,000) provides an adequate incentive for a facility of ATS' size to ensure proper performance; and (3) ATS has acted in good faith and already undertaken substantial efforts to complete the t st program. I pointed out a number of reasons why MCXA members n d the full protection of paragraph 15 for any test conducted under a section 4 test rule. Ed Hobbs supported my comments, but Phil Simon was unwilling to change his position.
2 VEV 000043346
ih'i'i, 3i 89
53 LATHAM & WATKINS WASH, T,C,
P,
Draft 11/01/38
AGREEMENT between
METHYL CHLORIDE INDUSTRY ASSOCIATION and
ANN ARBOR TECHNICAL SERVICES* INC.
I. SCOPE AND PARTIES
1. The parties to this Agreement are Ann Arbor Technical
Services* Ino. (ATS) and the Methyl Chloride Industry
Association (HCIA).
MCIA vill be represented during performance of this
Agreement by Robert M. sussman and William x. Ravson*
its legal counsel. All written and oral communications
with MCIA shall be addressed to Mr. Ravson or his
designee. Copies of written communications vill be
simultaneously transmitted to Mr. E. Robbs* of Dow
coming corporation* mcia*s chairman. / ^
for
***; '?>
3. ATS agrees to perform\ the hydrolysis tests required for
methyl chloride J*4fte office of solid Waste Chemicals
Qs**
Final Test Rule (S3 Fed. Reg. 33300* June IS* m*){T WfrIfiteiC The Final Test Rule is incorporated in this Agreement by) 4* ..u
ref rence and will become a part /her f ^_______ ^
cayg #*f 4k> fyt**-'***^
R'diL- UP A 6>Ai^'Y A
J VEV 000043347
AN, 3i J 89 11:53 LATHAM & WATKINS WASH, D, C,/
P,
4. All changes in this Agreement, including any increases
in cost# suat be authorised in writing by MCIA's
reprasantativea identified in Paragraph
changes
will be incorporated in an addendum to this Agreement
and will become a part thereof.
s. ATS will be an independent contractor in the performance of this Agreement. Before .subcontracting or assigning any portion of the work, ATS will obtain MCXA's written approval. Ho such approval will relieve ATS from any of its obligations under this Agreement. ATS agrees to bind each of the subcontractors to the provisions of this Agreement.
6. ATS agrees that testing under this Agreement will be
dlreoted and personally supervised by
1^9* .
if fM
S'i is unavailable to perform this
function, ATS agrees to notify KCXA promptly, in which event the Agreement will be subject to renegotiation at MCXA's option.
7. This Agreement will become effective upon its execution by MCXA and ATS.
XX. TBBM8-0E FAYHMtt
s. ATS shall undertake the required testing on a time and
*
materials basis, with monthly billings at ATS'a standard rates set forth in ACiauiuiiene A. invoices shall be paid
within.go*)days f rec ipt by MCXA. ATS has estimated
@A
2
uFV 000043348
8S 1 i; 53
LATHAM & ffATKi.VS WASH. fa TM<
;lMs ^
that tha required teat frq can be completed tory
approxinately/($10,000y fAT8 shall not exceed this amount .
without prior written authorisation from kcia. r" 4" mrfrr* 'Tx
III.SCHEDULE FOR TESTING AND REPORT SUBMISSION
9. The hydrolysis study must be completed and the final
_______
A
results submitted to SPA on or before dasnmnty 29, 1989. T/l
0* I "L
ATS will initiate the required testing upon execution of^^l'iTjf1
this agreement, On or before 0^ W"ultj3 . ATS will provide KCIA with A r ^f 10.
one unbound original and one copy of a draft of the
final report* KCIA will provide comments to ATS on the tH j/j
draft report withindays of its receipt, within ^ n
days thereafter, ATS will provide mcia with one unbound
original and 8 copies of the final report. At the same
time, ATS will provide a written response to any KCIA
comments which are not incorporated in the final
report. The final report will identify the Objectives
of the study, describe the methodology employed, record
essential data, describe the statistical methods used to
analyse the data, and discuss the study's results and
conclusions.
12, Because timely submission of the report is essential
for compliance with the Pinal Test Buie, the contract
erw
price will be reduced
percent for any delay of more
that?'twe days in receipt of the draft or final report as
required by the schedule set forth in paragraph 10. Conversely, th contract price will be increased by 8
3 VEV 000043349
oy . i '.00 LATHAM & WATKiNS WASn,
r. o
Tfvfrf (7} percent if ATS submits the draft report sore than
y^dt in advance of the scheduled delivery date* IV* QUALITY ASSURANCE AMD INTBRPftgTATIOH OP RESULTS
13. ATS will provide NCIA representatives with reasonable
access to ATS's personnel and the portion of its
facilities engaged in testing subject to this
Agreement. ATS shall cooperate fully in facilitating
audits, visits and inquiries by MCXA concerning
status of the hydrolysis testing.
yrsvblr** t . wrt jL hJtoSW*
F~.ti vo
lU.vn
14. ATS shall comply with all appllcablej^rt~dewenmeocfyfaty* **
regulations, Inrlndkig EPA's TSCA Good Laboratory /a- fa**1* eJ
Practice (MGLPtt) regulations, 40 CPR, Part 792* (? a*.
/j '
15. ATS understands that failuye^ to comply with CLP y
^^
regulations or with the test guidelines or other
0kp'*neiiiu*
^
r A provisions of the Pinal Test Rule may result in the
imposition of civil penalties under Section is of T3CA.
ATS agrees to protect, indemnify, and hold harmless MCXA
jucA.
*j .
and each of its members from any amd-alA penalties, *CL 7M
iioWe gtssfkr costs^ axpensesA attorney's fefSjSmd other
liabilities which may he TOmSmsd as a result of the
failuuf2ee^4tVo follov^GJJ regulations or applicable
test guidelines or oajhggsi.se iiissplf with the Pinal Test Rule, unless such failure occurs beoauss of negligence, misconduct or nonperformance by MCXA or any of its
4 VEV 000043350
jLATHAivi a WATKINS WASH; :.C,w*vK/ 7W~ -ft
4Tj
M'*
iif
Itv../*.> jltM. k- nv
k
i i m .......... ......
' * A`7J UMm(U
member companies or because of tninnHf' ~ factors beyong
4fvCO>^T
ATS1 a control. ~----------------------------------------..............
^5^^ W
16. In tha avent GLP violations# noncompliance vitnAtest
A&>s,Ln+ph'ei*b. uML
atr<r0\'"t+ *4 fit `TrywL ii*]
guidalinas or ulilinf lii|iilii'|iilil l | >i ............... .. In ATS
results in tha rejection by SPA of tha tea* results of Aia \M^Ul
the hydrolysis tasting anehmnaaeed by this Agreement/
yk*M, ATS ^*,aM ^ repeat testing within a reasonable period
of time at no additional cost to MCXA, if requested to
do so by NCIA.
17. ATS shall immediately inform KCZA in writing if it
obtains information indicating that the hydrolysis
study covered by this Agreement may not comply with GLP
regulations# applicable test guidelines or other
provisions of the Pinal Test Rule because of
i
nonconformities in conducting these studies or because
of deficiencies in general laboratory practices.
IV. DiaCliOSURB OF STUDY RRSUl/M 16. ATS and MCXA agree to full public disclosure of all
scientific information contained in the final report prepared in accordance with this Agreement. ATS shall not release such information# however# without prior MCXA knowledge and review.
19. ATS will be solely responsible for scientific conclusions and professional judgments arising out of performance of testing under this Agreement. ATS# however# will not publish r thervise release data#
5 vEy 000043351
latham ii watk;:;. wash,
conclusion#, or manuscripts in a citable or quotable for* without notifying and consulting with NCIA.
V. DATA RETENTION 20. All records, raw data or other documentation relating to
the testing covered by this Agreement shall be retained for a period of qj-ihwant ten (10) years from the date of
afti'll't*' conclusion of the test or until such.time as MCXA shall
A designate in writing.
21. ATS shall retain all files, informal notes, correspondence, memoranda, schedule sheets, copies of protocols, records of quality assurance inspection, or other comments relating to the planning, conduct or interpretation of testing covered by this Agreement, including documents generated by laboratory personnel or employees of MCXA and its member companies. Such documents shell be stored in a safe, secure manner and retained for a period of ton (10) years from the date of the conclusion of the test unless MCXA has notified ATS in writing that they may be discarded.
22. The materials retained pursuant to paragraphs 20 and 31 shall be stored in an archive which ensures that they will be maintained in a safe and secure manner and allowe for their expeditious retrieval when needed. Materials retained in the archive shall bs indexed by test substance, date of study, test system end nature of study, in the event that ATS or its archiving facility
6
LA i HAi'4 L iVA 1K i Iw rtnC'i., -
r.
discontinues operations, all raw data and othar documentation pertaining to the testing covered by this Agreement shall be transferred to such other facility as MCIA nay direct in accordance with BPA requirements for such transfer.
VII. DATA_DISCLOS_URZ 33. ATS will not disclose any confidential business
information it may receive from MCIA, its member companies^ or any of their representatives, provided--"""v such Information has been dearly designatedai y "CONFIDENTIAL BUSINESS INFORMATION,
24. ATS will immediately notify mcia of any private or Of m
governmental request for information on eegeiny or
completed testing conducted under this Agreement#
including any subpoena or other legal instrument
requesting information. ATS will cooperate fully with
any effort by MCIA to respond to such a request*
jkrfL bM
25. ATS shan permit duly designated IPA inspectors to inspect its facilities at reasonable tines and in a reasonable manner. ATS shall immediately notify mcia of any BPA inspection requests. ATS shall# upon request# provide MCXA with copies of any data or other materials furnished to BPA during an inspection of ats'b facilities. ATS shall also advise MCXA of the findings and observations of BPA inspe t rs and provide MCIA with
:f?x
7 VEV 000043353
a copy of any written inspection report which it receives.
VIII. MISCELLAMEQUS_PROVISIQWS 26. MS, by entering into this Agreement, agrees to protect,
defend, indean ify/^and hold HCIA or its member companies
harmless fros any and all claims for property damage,
personal injury or death which arise out of or in
connection with ATS's performance of activities covered
by this Agreement, ATS, however, shall not be liable
for such claims Ao the extent that they arise out of the
4,
______ _____________ ________ (f^J
negligeno^of HCIA or its member companies. ATS will
carry comprehensive liability insurance in an amount
adequate to cover the performance of this Agreement.
27. AX&jSSSSi* 9if requested by MCXA, me_e.t.. withj^or prepare a written statement for*" EPA or^ other regulatory
agencies regarding the testing covered by this
jlfjJ
Agreement, (where^such a request involves the validity
-- ---------- -- ^
^
of the test results obtained-'by ATS or the >rfallty of
Its laboratory practices^ATS shall bear''the coats
i *i|
L^tv*
p*. * " 0^ - /,
with addressing the issues raised. S
V , 4"
/
/
iisd* Al
ervise, AT> fees for euchre meeting or^Statement ^
will be negotiated, but wjjrl not exceed^tKe fees ATS j usua1Wcharaes for sudfii>rofassionsf/consultation.^
------------
------------------------------------------
28. This Agreement and all documents incorporated by
reference represent the entire contract on this subject
between the parties. There are n oral r written
00004335^
! A r\ 31 89
54 LATHAM & WATK1L8 WASH
. *3
promises, terms, conditions, or obligations other than those contained herein, and this Agreement supersedes all previous communications, representations or agreements, either oral or written, between the parties on this subject.
29. This Agreement is subject to/^and is to be construed
Or Mvd/yftw.
under^the lavs of the fllifrrirt-rf
United-
p m ill iflHMi'i n ,i. -Actionwanasr this Agreement 6h'Sn
far farnriht In iny raurt nf I'nini'iiiil ~nt jurisdici
aisfrfelnt of miunhiftr
30. The obligations imposed under this Agreement shall apply to the legal successors and assigns of ATS, including any acquirors of all or substantially all of its assets, and of MCIA*
ACCEPTED FORI
ACCEPTED FORI
METHYL CHLORIDE INDUSTRY ASSOCIATION
ANN ARBOR TECHNICAL SERVICES, INC.
NameSigned
Name Signed
9 VEV 000043355