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ENVIRONMENTAL COOPERATION AGREEMENT

Cooperation Agreement

ENVIRONMENTAL COOPERATION AGREEMENT You are currently viewing:
This Cooperation Agreement involves

Wise Metals Group LLC | REYNOLDS METALS COMPANY | WISE ALLOYS LLC

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Title: ENVIRONMENTAL COOPERATION AGREEMENT
Governing Law: Alabama     Date: 7/23/2004

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Environmental Cooperation Agreement

Exhibit 10.17

 

ENVIRONMENTAL COOPERATION AGREEMENT

 

THIS AGREEMENT is entered into as of March 31, 1999 by REYNOLDS METALS COMPANY (“Reynolds”) and WISE ALLOYS LLC (“Buyer”).

 

RECITALS

 

1.

This Agreement is being executed and delivered in accordance with Section 7.4 of the Asset Purchase Agreement, dated as of December 30, 1998 (the “Asset Purchase Agreement”), by Reynolds. Southern Reclamation Company, Inc., Reynolds Aluminum Partners and Buyer. Unless otherwise defined in this Agreement, all capitalized terms shall have the meanings given them in the Asset Purchase Agreement.

 

2.

Surface water running over portions of the Alloys Plant, the Alabama Reclamation Plant, the Surplus Real Estate, the site of Reynolds’ former Listerhill reduction plant (the “Reduction Plant”), and the retention ponds serving the Alloys Plant drain into an open ditch system which runs through these areas and eventually is collected in a final retention pond and discharged under a National Pollutant Discharge Elimination System wastewater permit for the Listerhill complex (the “NPDES Permit”). A diagram of the wastewater system for the Listerhill Complex (the “Wastewater System”) is attached to this Agreement and labeled “Attachment 1” and a sketch of the system is attached to this Agreement, labeled “Attachment 2”. The various plants and other areas mentioned above are referred to in this Agreement collectively as the “Listerhill Complex”.

 

3.

Reynolds and Buyer wish to provide for the joint and cooperative use of the Wastewater System serving the Listerhill Complex.

 

THEREFORE, for valuable consideration, receipt of which is acknowledged, Reynolds and Buyer agree as follows:

 

ARTICLE I

Operation of Wastewater System

 

1.1 NPDES Permit Compliance. On the Second Closing Date, Reynolds shall, subject to obtaining any necessary regulatory approvals, assign to Buyer the NPDES Permit and Buyer shall accept the assignment and assume responsibility for compliance with the NPDES Permit for the entire Listerhill Complex, including but not limited to all sampling, analyses, maintenance of ditches, cleaning of retention ponds as necessary to ensure maintenance of the wastewater collection system, beaver management, maintenance and operation of pumps to discharge collected storm water from the former white oil pond into the Wastewater System and general operation of the Wastewater System.

 

1.2 Reynolds’ Responsibilities. Reynolds shall, at its expense, cause final wastewater discharge outfalls (outfalls labeled “DSN 004” and “DSN 007” in Attachments 1 and 2) to comply with all fluoride and cyanide requirements of the NPDES Permit, and shall be responsible for all sampling, analytical and reporting costs for fluoride and cyanide monitoring required under the NPDES Permit with respect to final wastewater discharges, except that Buyer shall be responsible for compliance with fluoride requirements attributable to its operations.


Reynolds shall have liability for environmental claims arising from cyanide and fluoride discharges and requirements under Environmental Laws resulting from its activities and operations, whether such claims are raised by a governmental entity or third party. Buyer shall have liability for environmental claims arising from cyanide and fluoride discharges and requirements under Environmental Laws resulting from its activities and operations, whether such claims are raised by a governmental entity or third party. Reynolds shall have the opportunity to provide written comments to Buyer regarding negotiations with state and/or federal agencies in connection with fluoride issues relating to the final wastewater discharge for a new or renewed NPDES Permit to the extent that such issues arise from Reynolds’ past or present activities. Reynolds shall also have the opportunity to participate in state or federal agency meetings with Buyer relating to fluoride in connection with the NPDES Permit. In regard to cyanide monitoring requirements and discharge limitations in the final wastewater discharge for any new or renewed NPDES Permit, Reynolds shall assume primary responsibility for negotiations with respect to cyanide as it is regulated under the NPDES Permit. Reynolds’ responsibilities regarding the negotiation of cyanide standards shall include, but not be limited to, preparing comments and support data and attending meetings with Buyer before state or federal agencies.

 

1.3 Buyer’s Reporting Obligations to Reynolds. Buyer shall provide Reynolds with copies of all discharge monitoring reports (DMR’s) at the same time they are submitted to the government. In addition, Buyer shall provide Reynolds and Reynolds shall provide Buyer with copies of any and all analyses prepared by or on behalf of Buyer or Reynolds which Buyer or Reynolds may otherwise possess, relating to fluoride or cyanide analyses or tests performed on any Listerhill Complex-related wastewater.

 

1.4 Buyer’s General Responsibilities. Buyer shall have sole responsibility for compliance with the NPDES Permit requirements and for maintaining the NPDES Permit for the entire Listerhill Complex. For the term of this Agreement, Buyer and Reynolds shall maintain a single Wastewater System for the Listerhill Complex which operates under one NPDES Permit and shall take all steps reasonably necessary to obtain any necessary regulatory approvals to implement and maintain this arrangement. To the extent that such steps are related to Reynolds’ activities or prior operations at the Listerhill Complex, Reynolds shall incur the costs associated with the steps required to ensure that the Alabama Department of Environmental Management (“ADEM”) issues a single NPDES Permit for the Listerhill Complex which incorporates discharge and monitoring requirements for a single wastewater collection system for the Listerhill Complex. Reynolds and Buyer shall ensure that all steps taken in accordance with this Section are cost effective and not duplicative. Buyer shall not assign or transfer the NPDES Permit without the prior written consent of Reynolds, which consent shall not be unreasonably withheld or delayed. Buyer shall consult with Reynolds prior to amending or changing the NPDES Permit, but shall not be precluded from doing so (except with respect to cyanide standards or other requirements related to Reynolds activities or operations) since Buyer is solely responsible for compliance with the NPDES Permit.

 

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ARTICLE II

Surface Drainage Easements

 

2.1 Surface Drainage. Reynolds hereby reserves a non-exclusive easement and right for surface drainage over each and every part of the Listerhill Complex, substantially to the same extent as exists on the date of this Agreement. Buyer shall maintain its land within the Listerhill Complex so as to minimize, to the extent reasonably possible, surface drainage interference with the use of Reynolds’ retained land. The foregoing surface drainage easement shall include, but not be limited to, the right to continue to pump storm water collected from Reynolds’ former white oil pond area into the Wastewater System.

 

2.2 Wastewater System. Reynolds hereby grants to Buyer non-exclusive easements across, over and under such portions of the lands retained by Reynolds under the Asset Purchase Agreement (except “Black Mud Lake No. 1” and “Black Mud Lake No. 2” shown on Attachment 2) as are reasonably necessary for the maintenance and operation of the Wastewater System. The foregoing non-exclusive easements for the Wastewater System shall include, but not be limited to, the right to maintain, use, repair and replace the drainage ditches; provided however, replacement of drainage ditches shall not be undertaken without Reynolds prior written consent, which consent shall not be unreasonably withheld or delayed.

 

2.3 Recordation. Buyer and Reynolds each agrees for itself and its successors in title, that it will execute such documents in recordable form and in compliance with the requirements and laws of Alabama as may be reasonably necessary to confirm the provisions of this Article II.

 

ARTICLE III

License of Process Water Retention Ponds

 

3.1 General. The Alloys Plant discharges process waste water into process water retention ponds situated on top of a red mud surface impoundment (the “Red Mud Impoundment”) which, in the past, served as a impoundment area for the Reduction Plant. The Reduction Plant has been closed and removed from the Listerhill Complex and the Red Mud Impoundment has been closed and is no longer in use for any operations at the Listerhill Complex. The process water retention ponds comprise two equalization ponds, the South Retention Pond and the North Retention Pond, which are illustrated in the sketch attached to this Agreement as “Attachment 2” (the “Process Water Retention Ponds”). Reynolds retains responsibility under Environmental Laws for the Red Mud Impoundment over which the Process Water Retention Ponds are situated and Reynolds retains responsibility for its prior use and operations of the Process Water Retention Ponds. Reynolds is willing to allow Buyer to use the Process Water Retention Ponds to support the operations of the Alloys Plant on the condition that Buyer shall strictly comply with Environmental Laws and shall not, in any way, increase Reynolds’ exposure to environmental liability related to Reynolds’ prior use and operations associated with the Red Mud Impoundment and the Process Water Retention Ponds which are located on land retained by Reynolds.

 

For purposes of this Agreement, Reynolds and Buyer acknowledge that operations at the Alloys Plant will continue to be conducted in the same manner and mode as when Reynolds previously operated the Alloys Plant and that the same constituents will be discharged into the

 

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Process Water Retention Ponds and Wastewater System as were discharged during Reynolds’ operation of the facility. It is further acknowledged by both Reynolds and Buyer that there are no existing environmental claims, concerns or issues associated with Reynolds’ past use and operations of the Process Water Retention Ponds known to Reynolds or Buyer and there should be no environmental claims, concerns or issues arising from Buyer’s use of the Process Water Retention Ponds to the extent that Buyer is operating the Alloys Plant in the same manner and mode as Reynolds did. Should Buyer, however, change existing operations existing at the Alloys Plant, Buyer shall notify Reynolds of such and provide written documentation regarding the process changes that are made to assist in a later determination, if necessary, as to whether such process changes have had any environmental impact on the Process Water Retention Ponds. Moreover, should Buyer or its consultant conduct monitoring of the Process Water Retention Ponds, Buyer will share the results of such data collection with Reynolds within a reasonable period after such data is obtained.

 

3.2 Grant of License. Reynolds hereby grants a personal, nontransferable license to Buyer to discharge process water from any existing operations included in the Purchased Assets (substantially to the same extent as Reynolds’ previous operations) into the Process Water Retention Ponds on the terms and conditions set forth in this Agreement.

 

3.3 Maintenance of Process Water Retention Ponds. Buyer shall be responsible for maintaining the Process Water Retention Ponds at no cost or expense to Reynolds. In exercising its responsibilities, Buyer shall make all necessary repairs to the Process Water Retention Ponds, ordinary and extraordinary, foreseen and unforeseen, and maintain and keep such improvements in good order, repair and condition. Buyer shall comply with all applicable laws, including without limitation, Environmental Laws and the requirements of the NPDES Permit, in the operation and maintenance of the Process Water Retention Ponds. If a governmental authority requires any substantial upgrade or improvement to the Process Water Retention Ponds as a condition of issuing the NPDES Permit, Buyer shall relocate the Process Water Retention Ponds to land owned by Buyer and Reynolds will reimburse Buyer for 50% of the cost of such relocation, or $1 million, whichever is less.

 

3.4 Term of License. The license granted under this Article III (the “License”) shall expire upon the first to occur of the following: (a) the sale or transfer of the Alloys Plant; (b) a change of control of Buyer; (c) seven years from the date of this Agreement; or (d) termination of this Agreement. For purposes of this Agreement:

 

(i) a transfer of the Alloys Plant shall not be deemed to have occurred upon a transfer of all or any portion of the Alloys Plant to an entity or individual who holds title merely as security for the performance of an obligation, such as a mortgagee or trustee under a deed of trust, but no mortgagee or trustee under a deed of trust may transfer this license without the prior written consent of Reynolds; and

 

(ii) a change of control of Buyer shall be deemed to have occurred whenever there has been a transfer, directly or indirectly, of power either (A) to vote 50% of more of the securities having voting power for the election of directors of Buyer or (B) to direct

 

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or cause the direction of the management and policies of Buyer whether by contract or otherwise.

 

In order to prepare for an orderly transition, Reynolds and Buyer agree to discuss the termination or possible extension of the License on or before the fifth anniversary of this Agreement. If the parties do not agree to the terms of an extension of this Agreement within three months thereafter, the License shall terminate as provided above. Nothing herein should be construed to require Reynolds to extend this License beyond the original seven-year term.

 

3.5 Environmental Matters. Neither Reynolds nor Buyer shall use the Process Water Retention Ponds for the storage, treatment, generation, transportation, processing, handling or disposal of any Hazardous Materials in violation of any Environmental Laws or Environmental Permits. Further, Buyer shall not cause or in any way directly or indirectly contribute to any potential existing condition arising from Reynolds’ past operations that is or may be characterized by any federal, state or local government or agency as an actual or potential threat or endangerment to health or the environment. If Buyer or Reynolds discovers that the Process Water Retention Ponds have been contaminated by any Hazardous Materials released by or in any way attributable to the activities of Buyer during its use of the Process Water Retention Ponds or the migration of Hazardous Materials originally introduced into the environment by Buyer’s activities, then (a) Buyer at its expense shall:

 

(i) reimburse Reynolds for the costs of any testing, analysis, and assessment conducted by Reynolds or its consultants with respect to the Hazardous Materials it has released or allowed to migrate into the environment;

 

(ii) remove such Hazardous Materials from Reynolds’ retained land and the adjoining property east of Black Mud Lake No. 1 and Black Mud Lake No. 2, if such Hazardous Materials migrated to such adjoining property;

 

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