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
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1.
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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.
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2.
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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 ”.
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3.
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Reynolds and
Buyer wish to provide for the joint and cooperative use of the
Wastewater System serving the Listerhill Complex.
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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 Bu