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site and agreed to pay IDEM a fine of $36,339.  This establishes, prima facie, that prior to the inception of the first National policy on March 1, 1994, Housewares actually knew that liability at the Terre Haute site was not only substantially certain to occur, but had indeed occurred.  That Housewares did not know the final extent of its liability is of no import.

With regard to the Sidney, Ohio site, the designated materials reveal that, on February 25, 1993, Housewares, acting through its Vice President of Operations, entered into a final order with the Ohio EPA requiring Housewares to close the contaminated site, determine the lead concentration levels, submit a closure plan, and pay a fine totaling $30,000.  This establishes, prima facie, that despite its denial of liability, Housewares actually knew that a liability had occurred at the Sidney site well in advance of the inception of any National policy.

The designated materials also show that on December 8, 1992, Housewares, acting through an authorized agent, the Bekem Partnership, and the Kentucky Natural Resources and Environmental Protection Cabinet signed an order wherein Housewares and Bekem agreed to remove an underground storage tank from the Lexington site.  Housewares claims that this order “established, at most, General Housewares’ liability for part of the cost of removing the underground storage tank.”  Appellant’s Brief at 13.  We agree.  Housewares, by agreeing to a cleanup of the Lexington site, assumed partial liability.  This establishes, prima facie, that Housewares actually knew that it had incurred some liability at this site prior to the inception of the first National policy.

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