_GENERAL DOCUMENTS - C1981017 (178)

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FROM :RGO NRT. RES. SECTION TO 1 303 2410336 1995,01-31 11:03 ##050 P.03/04 Joel W, Cantrick Page 2 "shall be distributed so as to permit the timely performance of the Reclamation Flan according to anv reclamation schedule negotiated prospectively among the Debtor, the DMC, and the MLRB. . . . Funds received by the MLRB . . . shall be expended by the MLRB pursuant to the Reclamation Plan and such reclamation schedule " (Emphasis add.ed) - The language of section 4 .3 . 4 does not require that a reclamation schedule be negotiated, but merely accounts for the possibility that one May be negotiated. Indeed, it would be impossible to create a reclamation schedule which somehow coincides with the time when liquidation funds would, be available from sales of property, since no one can predict when such sales will occur. Such a schedule would simply be illusory. in addition, you mentiondd that you .thought that Resources should be involved in the negotiations and that the creditor' s trustee, Louis LaGiglia, should be the representative of Resources. We disagree with your position. We do not believe it is appropriate for Resources to be involved in the present matter. In addition, the creditor' s trustee has no authority under the plan to negotiate issues involved in this litigation. Resources' liquidation plan concerns only the Division' s and Board' s claim against Resources for reclamation. Although the plan does not specify or limit the extent of Resources' reclamation Liability, the plan provides a mechanism to liquidate and distribute Resources' assets to creditors. The plan has no bearing on the defendants' liability in their personal capacities. Indeed, section 7 .5 of the plan-,so states. That being the cage, there is no reason for Resources to be involved in the present matter against the defendants for personal liability. Another issue which you have raised is if the stay agreement fails and litigation must be resumed, what then is litigated - the Board order of May 1991 or something else. The Division's position is that the currently-pending litigation would be resumed. That is, the litigation would be based on the violation of the May 1991 Board, order. The proposed stay agreement puts off litigation until it can be determined what funds the liquidation plan in Resources' bankruptcy proceeding will yield. While we prefer not to depend on the uncertain yield of funds in another case for reclamation of the site, we are willing to trust your assertion that funds will be available as needed, at least until the facts show the contrary to be true. if the liquidation plan fails to produce adequate funds, it � a envisioned that the parties will confer about the next step to take. If the parties cannot come to an agreement as to that step, then the currently pending litigation would be resumed with all claims and defenses presently available preserved.