HomeMy WebLinkAboutDel Monte Corporation - Settlement and Wastewater Treatment Agreement SETTLEMENT AND WASTEWATER TREATMENT AGREEMENT
This Settlement and Wastewater Treatment Agreement ( "Agreement") is entered into
between the City of Yakima, a Washington municipal corporation ( "City"), and Del Monte
Corporation, a New York corporation ( "Del Monte "). The City and Del Monte are collectively
referred to in this Agreement as the "Parties." This Agreement will become effective when both
this Agreement and the Parties' companion Tndustrial Wastewater Discharge Agreement (a copy of
which is attached hereto as Exhibit A) have been executed.
PART ONE: SETTLEMENT AGREEMENT PROVISIONS
WHEREAS, Plaintiffs, Wilfred and Karen Murphy, et al., brought suit against the City
and Del Monte in the consolidated action styled "WILFRED and KAREN MURPHY, et al.,
Plaintiffs, v. CITY OF YAKIMA, a Washington municipal corporation, and WASTEWATER
DIVISION OF THE DEPARTMENT OF ENGINEERING AND UTILITIES, a discrete
governmental agency or unit of the City of Yakima, and DEL MONTE CORPORATION, a New
York corporation," in the Superior Court of Washington, Yakima County, Cause No. 99 -2- 00611 -8
(the "Litigation "), alleging injury and damage to members of a class of persons in the vicinity of
City's regional wastewater treatment facility and Sprayfields;
WHEREAS, City and Del Monte denied the allegations made against them in the Litigation;
WHEREAS, City and Del Monte may have claims relating to the Litigation against each
other;
WHEREAS, City and Del Monte wish to avoid the expense and risk involved in disputes
against each other over the matters alleged in the Litigation, and instead wish to compromise and
settle the various disagreements arising in connection therewith;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, City and Del Monte agree as follows:
TERMS AND CONDITIONS OF SETTLEMENT
1. Purpose. This Agreement is intended solely for the purpose of compromising
disputed claims and potential claims and avoiding the risk and expense of litigation.
2. No Admission of Liability. This Agreement is entered into without any admission of
liability, and nothing in this Agreement shall constitute or be interpreted, construed, or used as
evidence of any admission of liability or wrongdoing of any kind on the part of any party, nor does
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any party admit or concede the validity of any claim or defense asserted by any party in the
Litigation.
3. Settlement Amounts. Del Monte shall pay the City the sum of Three Hundred and
Fifty Thousand and No /100 Dollars ($350,000.00) (the "Settlement Amount") in settlement of
claims arising from the Litigation in accordance with the terms and conditions of this Agreement.
This Settlement Amount shall be payable in two payments as follows:
(a) Initial Payment. Del Monte shall pay the City the sum of Two Hundred
Thousand and No /100 Dollars ($200,000.00) on the later of February 1, 2001 or the full
execution of this Agreement.
(b) Second Payment. Del Monte shall pay the City the sum of One Hundred
and Fifty Thousand and No /100 Dollars ($150,000.00) on or before August 1, 2001.
(c) Form of Payment. Del Monte shall make these payments by way of check
payable to "City of Yakima" and shall deliver the check to the City of Yakima Finance Director.
4. Payment for Litigation Costs. Del Monte has allocated the amount of Two
Hundred and Fifty Thousand and No /100 Dollars ($250,000.00) (the "Allocated Funds ") for
payment of its attorneys fees and costs (including expert witness fees) (collectively, "Litigation
Costs ") or for payment to the City as described in this paragraph. The Allocated Funds shall be
used first to pay Del Monte's Litigation Costs relating to the Litigation and incurred on and after
December 15, 2000. In the event that the Litigation Costs do not exceed $250,000.00 prior to the
Termination Date (as defined below), then the balance of the Allocated Funds shall be paid to the
City. For the purposes of this paragraph, the term "Termination Date" shall mean the later of: (a)
30 days after the initial hearing on plaintiffs' motion for class certification; or (b) March 31, 2001.
Del Monte's attorneys shall notify the City before the Litigation Costs exceed $100,000.00. Del
Monte shall be responsible for its Litigation Costs in excess of $250,000.00, if any.
5. Cooperation. Up to and until the Termination Date, Del Monte shall continue its
active participation and defense in the Litigation in cooperation with the City including, but not
limited to, providing information and producing witnesses and documents to the City or its
attorneys without the need for compulsory process. After the Termination Date, Del Monte shall
remain as a defendant in the Litigation, subject to the terms and conditions of this Agreement, and
shall continue its participation and defense in the Litigation in cooperation with the City only as
necessary, including, but not limited to, providing information and producing witnesses and
documents to the City or its attorneys without the need for compulsory process. Except as
expressly set forth herein, nothing herein shall be deemed a waiver of any of Del Monte's rights
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pursuant to the Washington Rules of Civil Procedure and the Washington Rules of Evidence, which
rights Del Monte expressly retains.
6. Indemnification. The City shall indemnify and hold Del Monte harmless from any
judgment, award, settlement or sum paid, ordered or agreed to be paid in the Litigation; provided,
however, that the City's obligation to indemnify Del Monte pursuant to this paragraph shall be
limited to judgments, awards, settlements or sums paid, ordered to agreed to be paid in or arising
out of the Litigation. This defense, indemnity and hold harmless provision shall apply regardless of
whether such claims are for declaratory or injunctive relief, damages, for response costs or response
actions, judgments, fines, penalties, costs or expenses, or for other relief, regardless of whether such
claims or potential claims are known or unknown at this time, and regardless of whether the nature
or magnitude of such claims are reasonably foreseeable or within the contemplation of the parties at
this time. This indemnity obligation shall become effective as of the Effective Date of this
Agreement and, except as provided in paragraph 4 above, shall not include fees, expenses and other
costs necessary to conclude the Litigation.
7. Release. Effective upon execution of this Agreement by the Parties and except as
otherwise provided expressly herein, the City releases Del Monte, and Del Monte releases the City,
for: (a) any and all claims, costs, liabilities or damages, whether known or unknown, arising out of or
in any way connected with the Litigation, and operation or use of the City's wastewater treatment
system and /or the Sprayfields including, but not limited to, any claims or cross - claims the City may
have for contribution and /or indemnity for any act or omission occurring prior to the Effective
Date of this Agreement; (b) any and all claims, demands, damages, actions, causes of action or suits
of any kind or nature whatsoever, as asserted or which could have been asserted in the Litigation,
whether pleaded or not, whether in law or equity, arising out of or relating in any way to the City's
wastewater treatment system and /or the Sprayfields including, but not limited to, any and all claims
for: personal injuries, bodily injury, illness, nuisance, trespass, disease, impairment, or wrongful
death; property damages, loss of use and enjoyment, and /or diminution of property values; medical
monitoring; odor; irritation; fear or increased risk of bodily injury, illness, disease, or impairment;
pollution or contamination of air or water, attorney fees; remedial action costs under any statutory
or regulatory authority; penalties or other relief resulting from violations of permits or failure to
comply with applicable laws; regardless of whether any such matters are claimed under theories of
nuisance, trespass, negligence, strict liability, inverse condemnation, contribution, indemnity, or any
other common law, statutory or regulatory cause of action, and regardless of whether defined as a
continuing tort or otherwise. This full and final release is intended to provide the broadest
protection possible from future claims related to the Litigation and to cover any and all future
injuries and /or damages related to the Litigation that are not presently known to the Parties hereto
but that may later develop or be discovered that are a result of acts, omissions or occurrences on or
before the Effective Date of this Agreement, or damages to property or persons occurring on or
before the Effective Date of this Agreement, including the effects or consequences thereof and
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including all causes of action therefore against the Parties that relate to the Litigation. This release is
specifically intended to cover and include, without limitation, any and all claims, civil or otherwise,
past, present, or future, known or unknown, which can or may ever be asserted by plaintiffs in the
Litigation, or by their agents, estates, marital communities, dependents, successors, assigns, lien
holders, or other entities, against the Parties arising out of or relating in any way to the matters
described above that are based on acts, omissions or occurrences on or before the Effective Date of
this Agreement. Further, nothing in this Agreement shall waive, release, or otherwise affect in any
way any right, claim, defense, interest or cause of action that the Parties may have with respect to
any entity other than the Parties. This Agreement specifically does not include or release in any way
Parties' claims or causes of action against the Plaintiffs in the Litigation or any other parties or
entities who may be named in the Litigation. Further, this Agreement does not apply to acts or
omissions by the Parties that occur after its Effective Date, as well as , without limitation, acts or
omissions relating to discharges to the City's Wastewater Treatment System that occur after January
1, 2001.
8. Recovery of Costs. The City anticipates that it will recover its expenses (Including
but not limited to any amount of settlement or judgment paid to Plaintiffs) for the Litigation
through modification of wastewater treatment rates. Del Monte shall pay such costs through rates
on the same basis as other customers under the Yakima Municipal Code; provided, however, that
the City shall not discriminate against Del Monte in setting or modifying said rates.
9. Industrial Wastewater Discharge Agreement. This Agreement and the obligations
and benefits of the Parties herein is expressly conditioned upon the execution by the Parties of the
industrial Wastewater Discharge Agreement in the form attached hereto as Exhibit A which is
incorporated herein by reference as if set forth in its entirety. The Parties shall use their best efforts
to renew the industrial Wastewater Discharge Agreement consistent with the terms and conditions
of this Agreement.
10. Costs Associated With Sprayfield. Del Monte shall have no liability or obligation to
pay any further costs relating to the Sprayfield including, but not limited to, the cost, book or
undepreciated value of any equipment, fixtures, trunks, interceptors lift stations, vehicles or other
property, real or personal, which was used in and for the operation of the Sprayfield. The City shall
absorb and pay all costs and expenses associated with terminating the use of the Sprayfield. The
City shall retain ownership of the Sprayfield and all associated equipment. The City shall have no
obligation to maintain the Sprayfield in a condition usable for wastewater application purposes.
11. Amendment and Payment of Outstanding Invoice. The City shall amend the
outstanding invoice from the City dated July 2000 for Sprayfield services ( "Amended Invoice ") to
reflect a total invoice amount of One Hundred Nine Thousand Seven Hundred Five and 51/100
Dollars ($109,705.51). Del Monte shall pay the Amended Invoice in the amount of One Hundred
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Nine Thousand Seven Hundred Five and 51/100 Dollars ($109,705.51) within thirty (30) days of
receipt by Del Monte of the Amended Invoice.
12. Payment for Pilot Test Invoices. Del Monte shall pay forthcoming invoices from the
City for service rendered by CH2M Hill for the pilot test and related analyses, supplies, parts and
equipment ( "Pilot Test Invoices ") within thirty (30) days of receipt by Del Monte of supporting
documentation for such Pilot Test Invoices.
13. Release of Overcharge Claims. Del Monte hereby releases the City for any and all
claims of past overcharges related to operation or use of the City Wastewater Treatment System
and /or Sprayfield.
PART TWO: WASTEWATER TREATMENT PROVISIONS
WHEREAS, the City owns and operates the Yakima Regional Wastewater Treatment
Facility ( Treatment System "), including the treatment works presently operated by the
City together with all the related pumping stations, devices, structures, and collection facilities, as
they may be maintained, improved or modified from time to time;
WHEREAS, Del Monte operates a fruit canning facility, the Del Monte Foods Plant #125,
located at 108 West Walnut Street in Yakima, Washington ( "Plant");
WHEREAS, the Parties wish to enter into a long term agreement for treatment of Del
Monte's wastewater at the City's Wastewater Treatment System; and
WHEREAS, such treatment will cause the City to incur capital costs and operational
expenses;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the Parties agree as follows:
1. Term of Agreement. The term of this Agreement shall be for twenty (20) years (the
"Term ") from the Effective Date.
2. Connection Charge. Del Monte shall pay the City a connection charge in the amount
of Four Hundred Forty One Thousand Five Hundred and Fourteen and No /100 Dollars
($441,514.00) (the "Connection Charge ").
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3. Capital improvements Charge. Del Monte shall pay the City the sum of Four
Hundred Ninety Five Thousand Five Hundred and No /100 Dollars ($495,500.00) for capital
improvements at the Wastewater Treatment System (the "Capital Improvements Charge ").
4. Payment of Connection Charge and Capital Improvements Charge. Del Monte shall
pay the Connection Charge, and the Capital Improvements Charge and the Bond Costs, as defined
below, (collectively, the "Connection Fees ") in equal annual installments over a period of twenty (20)
years including interest at a rate equal to the lesser of six and one quarter percent (6 1 /4 %) or the
interest rate on municipal bonds to be issued by the City to finance said capital improvements at the
Wastewater Treatment System (the "Municipal Bonds "); provided, however, that in the event the
Plant is closed or its operations permanently discontinued, or that this Agreement is terminated
before the expiration of the Term, the balance of the Connection Fees shall become immediately
due and payable. For purposes of this Agreement, the term "Bond Costs" shall mean an amount
equal to the lesser of Eighteen Thousand Seven Hundred Forty and No /100 Dollars ($18,740.00)
or Del Monte's pro rata share of the City's bond issuance costs for the Municipal Bonds. Del
Monte shall pay to the City the first of these annual payments within ten days of the Effective Date
of this Agreement. Subsequent annual payments shall be due on the first day of February of every
year.
5. Financial Assurance. Del Monte shall provide financial assurance within ten days of
the effective date of this Agreement and annually thereafter by the first day of February of each
successive year. Such assurance shall be for an amount equal to the unpaid balance of the
Connection Fees in a manner consistent with the financial test for liability coverage provided in 40
C.F.R. section 260.147(1).
6. Monthly User Charge. Del Monte shall pay the City a monthly user charge during
the period of actual operation of the Plant for wastewater treatment and disposal services. Del
Monte shall pay those collection and treatment rates and charges set forth in Chapters 7.60 and 7.65
of the Yakima Municipal Code that are generally applicable to industrial customers.
7. City's Responsibility to Operate and Maintain Wastewater Treatment System. The
City shall be responsible for maintaining the industrial wastewater line connecting the Plant and the
Wastewater Treatment System in good condition. The City has no obligation to maintain the
Sprayfield in usable condition
8. Discharge Limits, Testing, Sampling, and Other Terms. This Agreement
incorporates all terms of service contained in the Industrial Wastewater Discharge Agreement
attached hereto as Exhibit A, which is incorporated herein by reference as if set forth in its entirety.
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9. Surcharges. The City may apply, and Del Monte agrees to pay, surcharges for any
discharge that exceeds the specific terms set forth in the Industrial Wastewater Discharge
Agreement attached hereto as Exhibit A. The surcharge shall be in an amount determined pursuant
to the "Supplemental Rider" to said Industrial Wastewater Discharge Agreement. This surcharge is
designed to cover the City's expenses in processing wastewater that deviates from the parameters
established by the terms of service and may be imposed in addition to, or in lieu of, any enforcement
mechanism set forth in the Yakima Municipal Code including, but not limited to, administrative or
civil penalties and cease and desist orders as outlined in section 8 of Title 7.65, as it may be
amended.
10. Termination of Discharges. In the event that Del Monte wishes to terminate its
discharges from the Plant prior to expiration of the twenty -year term of this Agreement, Del Monte
shall provide notice of its intent to terminate as soon as possible but no later than ninety days before
the anticipated effective date of termination. If Del Monte elects to terminate this Agreement for
any reason, it shall pay the balance of the Connection Fees established in Paragraph Four of this
Agreement. The Connection Fees are due in full on or before the effective date of termination of
this Agreement by Del Monte. The effective date of termination shall be the date upon which Del
Monte ceases discharging its food processing wastewater to the Treatment Plant. Assignment by Del
Monte of its rights and obligations under this Agreement to a third pally pursuant to Part Three,
paragraph 10 of this Agreement, shall not constitute termination under this paragraph. The City
retains the right, pursuant to YMC 7.65.270, as it may be amended, to terminate services to Del
Monte for cause.
11. Modification of Terms. A change in the law applicable to the processing of Del
Monte's wastewater may be the grounds for modification of this Agreement where such change
affects the ability of the City to fulfill its obligations under this Agreement. A material change in the
terms of the City's NPDES permit or Del Monte's State Waste Discharge Permit may be grounds
for modification of this Agreement where such change affects the ability of either Party to fulfill its
obligations under this Agreement. A material change in the type, volume, or season of processing
by Del Monte may be grounds for modification of this Agreement where such change increases the
cost or affects the ability of the City to process Del Monte's wastewater. Where a material change of
law or fact so affects the City's obligations under this Agreement as to render it unduly burdensome,
the Parties shall negotiate in good faith to modify this Agreement so as to achieve the purposes of
the Agreement as nearly as possible.
12. Wastewater Permit. The City and Del Monte shall use their best efforts to obtain
the issuance and renewal of all necessary wastewater discharge permits and approvals required under
federal, state and local law for the discharge and treatment of Del Monte's wastewater at the
Wastewater Treatment System, from the Washington Department of Ecology ( "Ecology") and any
other appropriate government agency, consistent with the terms and conditions of this Agreement.
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13. Billing Documentation/ Recordkeeping. During periods in which Del Monte is
discharging, the City shall submit an itemized invoice to Del Monte on a monthly basis, including
supporting documentation. Supporting documentation shall include laboratory analysis reports
(with QA /QC test components) for all sample measurements and all effluent flow meter readings
and records. Del Monte shall have access to review the City's other publicly available
documentation and records of monitoring at the effluent monitoring point, including field sampling
and laboratory analysis procedures and regulatory audits, inspections or evaluations of the City's
sampling and laboratory analysis programs.
PART THREE: GENERAL PROVISIONS
1. Choice of Law and Venue. The interpretation and enforcement of this Agreement
shall be governed by the laws of the State of Washington. Venue of any action brought under the
terms of this Agreement shall be in Yakima, Washington. Except as otherwise specifically provided
for in this Agreement, all disputes arising hereunder, including any inability to agree on an
independent engineer or laboratory to resolve a dispute in the manner set forth in any paragraph of
this Agreement, shall be resolved by action filed in courts of appropriate jurisdiction in Yakima
County, Washington.
2. Force Majeure Provision. The City shall not be responsible for costs of
inconvenience, delay, or other loss that may be experienced by Del Monte due to forces outside the
City's control, acts of nature, acts of God, or other emergency situations that impair or halt Plant
operations; provided, however, that the City shall promptly notify the Del Monte in the event the
City anticipates that such conditions may impair or halt Plant operations. Procedures to be followed
in such situations are established by YMC 7.65.260.
3. Construction of Agreement. This Agreement has been drafted by mutual
negotiations among the parties. It shall be construed according to the fair intent of the language as a
whole, and not for or against any party.
4. Execution/ Authority to Agree. The parties represent, warrant and covenant that
the execution, delivery and performance of this Agreement have been duly authorized by all
requisite municipal and corporate action, respectively, and that this Agreement has been duly
executed and delivered by the parties and is a legal, valid and binding obligation of the parties
hereto, enforceable in accordance with its terms.
5. Notices. Any notice required or permitted hereunder shall he in writing and shall be
given by hand or by first class registered or certified mail, or by telex or cable, addressed if to the
City, to City Manager, City of Yakima, 129 N. Second Street, Yakima, Washington 98901, with a
copy to City Attorney, City of Yakima, 200 S. Third Street, Yakima, Washington 98901, and to
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Wastewater Division Manager, 2220 E. Viola, Yakima, Washington 98901, or if to Del Monte to
Del Monte Corporation, 108 West Walnut Street, Yakima, WA 98902, Attention: Plant Manager,
with a copy to Del Monte at Del Monte Corporation, One Market Street, PO Box 193575, San
Francisco, CA 94119 -3575, Attention: Legal Department.
6. Waiver or Modification of Terms. Any of the terms or conditions of this Agreement
may be waived at any time by the party which is entitled to the benefit thereof, but no such waiver
shall affect or impair the right of the waiving party to require observance, performance or
satisfaction of any other terms or conditions hereof. No waiver of any breach or default hereunder
shall be considered valid unless in writing and signed by the party giving such waiver, and no such
waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature.
Any of the terms or provisions of this Agreement may be amended or modified at any time by
agreement in writing executed by the parties hereof.
7. Entire Agreement. Supersedes Prior Agreements. This Agreement shall constitute
and contain the entire agreement of the parties, and supersede any and all prior negotiations,
correspondence, understandings and agreements between the parties respecting the subject matter
hereof.
8. Provisions Invalid, Illegal, or Contrary to Public Policy. The provisions of this
Agreement are severable. If any provision of this Agreement or the application of any provision of
this Agreement to any circumstance is determined to be invalid, illegal, or contrary to public policy,
the application of such provision to other circumstances and the remainder of the provisions of the
Agreement shall not be affected. Such other provisions will continue in full force and effect; unless
the purposes of the Agreement would be frustrated in the absence of the provision.
9. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original but all of which together shall constitute one and the
same instrument, and in making proof hereof it shall not be necessary to produce or account for
more than one such counterpart.
10. Binding on Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of each of the Parties and their successors and assigns. A Party may not assign
its rights under this Agreement to any third party without the prior written approval of the other
Party; provided, however, that Del Monte may assign its rights and obligations under Parts Two and
Three of this agreement to a subsequent operator of the Plant, provided that the proposed Assignee
will discharge wastewater with substantially the same characteristics as prior Plant wastewater, and
the proposed Assignee provides the City with adequate financial assurances in the form of a bond,
letter of credit, or other equivalent form of financial assurance that the City deems satisfactory, to
guarantee full payment of any unpaid balance of the Connection Fees established under this
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Agreement. The City, upon reasonable notice by Del Monte and after the provision of operational
information and adequate financial assurances by the proposed Assignee, must consent in writing
prior to any such assignment; provided, however, that such consent shall not be unreasonably
withheld. In the event of assignment by Del Monte, it is anticipated that a separate Industrial
Wastewater Discharge Agreement would be established by the City for the Assignee.
11. Representations and Warranties. Each Party represents and warrants to the other
Party that its execution, delivery and performance of this Agreement, and the consummation of the
transactions contemplated hereby, are within its corporate and /or municipal powers, and have been
duly authorized by all requisite corporate and /or municipal action on its part.
IN WITNESS WHEREOF, the respective parties hereto have caused this Agreement to be
executed in their behalf by their respective officers thereunto duly authorized.
THE CITY OF YAKIMA Del Monte
Signed this 1 day of Soht--- , 2001. Signed this %' day of s.. , 2001.
By: * . f ByC
1:45N-at.
Its: City Manager Its:
, -
ATTEST: ATTEST:
City Clerk
A Citere, l C�s�
Contract Number: 20 (-63
Resolution Number:
Settlemt 6- 15.doc
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EXHIBIT "A"
CITY OF YAKIMA
INDUSTRIAL WASTEWATER DISCHARGE AGREEMENT
In accordance with the provisions of City of Yakima Municipal Code Chapter 7.65,
Del Monte Corporation
108 West Walnut Street
Yakima, Washington 98902
is hereby authorized to discharge industrial wastewater from the food processing activities
at the above - identified facility (or different location if applicable) and through the discharge
point identified herein into the City of Yakima sewer system in accordance with the
conditions set forth in this agreement. Compliance with this agreement does not relieve
Del Monte of its obligation to comply with any or all applicable pretreatment regulations,
standards, or requirements under local, state, and federal laws, including any such
regulations, standards, requirements, or laws that may become effective during the terms
of this agreement.
Non - compliance with any term or condition of this agreement shall constitute a violation of
the Yakima Municipal Code, Section 7.65. All terms and definitions used in this
agreement are the same as those found in Yakima Municipal Code, Section 7.65. This
agreement incorporates by reference all of the applicable provisions of the Yakima
Municipal Code, including but not limited to, Section 7.65.
This agreement shall become effective on May 16, 2001, and shall expire at midnight on
May 15, 2006, unless modified or terminated earlier.
If Del Monte wishes to continue to discharge after the expiration date of this agreement, an
application must be filed for an agreement a minimum of 90 days prior to the expiration
date.
06/18/2001 11:38 AM
Agreement No .DMF01
Page 2 of 26
PART I - WASTEWATER DISCHARGE LIMITATIONS
The agreement limits are based on General and Specific National Prohibited Discharges,
[40 CFR 403.5 (a) and (b)], and a combination of local and federal limits, whichever are
more stringent. All pertinent data is on file in the City of Yakima's Pretreatment Office
located at 2220 E. Viola, Yakima, WA 98901 (509) 575 -6077.
A. DESCRIPTION OF DISCHARGE POINT
During the period the agreement is effective, Del Monte is authorized to discharge
process wastewater to the City of Yakima sewer system from the discharge point
listed below.
DM -01 This discharge point is the point at which Del Monte's process
wastewater enters the City's collection system.
B. EFFLUENT LIMITATIONS
During the period the agreement is effective, the discharge from discharge point
DM -01 shall not exceed the following effluent limitations. Except as provided
below, the point of compliance testing will be at the Del Monte discharge point.
Del Monte may discharge wastewater to the Wastewater Treatment Facility during the
period from June 1 through November 25 of each year (the "Primary Pack ") subject to the
Primary Pack Effluent Limits set forth below. Del Monte may discharge wastewater to the
Wastewater Treatment Facility during the period from November 26 through May 31 of
each year (the "Secondary Pack ") subject to the Secondary Pack Effluent Limits set forth
below, provided, however, that Del Monte shall provide the City with fifteen (15) days'
written notice prior to commencing discharge for each processing period, including the
date that the discharge will begin, the type of fruit to be processed at the Del Monte plant
and the estimated duration of the discharge. Subject to these provisions, Del Monte may
discharge wastewater from the washing, processing, cooking, canning and clean -up
( "Process Wastewater") of fruit seven (7) days per week.
06/18/2001 11:38 AM
Agreement No .DMF01
Page 3 of 26
PRIMARY PACK EFFLUENT LIMITS
Effluent Unit of
Characteristics Measurement Daily Maximum Weekly Maximum
Flow gallons 600,000 3,500,000
pH pH units Between 5.5 and 9.0 at all times. **
Arsenic* mg /liter 5.0*
Cadmium* mg/liter 1.0*
Chromium* mg /liter 5.0*
Copper* mg/liter 2.0*
Cyanide* mg /liter 1.5*
HEM mg/liter 100
Lead* mg/liter 5.0*
Mercury* mg/liter .2*
Molybdenum* mg/liter 2.0*
Nickel* mg/liter 2.0*
Selenium* mg/liter 1.0*
Silver* mg/liter 5.0*
Zinc* mg/liter 5.0*
BOD5 Lbs 20,000 119,000
Soluble BOD5 Lbs 18,000 107,100
TSS Lbs 7,000 45,500
Chlorine Residual mg/liter 0.50
SECONDARY PACK EFFLUENT LIMITS
Effluent Unit of
Characteristics Measurement Daily Maximum Weekly Maximum
Flow gallons 200,000 750,000
pH pH units Between 5.5 and 9.0 at all times. **
Arsenic* mg /liter 5.0*
Cadmium* mg/liter 1.0*
Chromium* mg/liter 5.0*
Copper* mg /liter 2.0*
Cyanide* mg /liter 1.5*
HEM mg /liter 100
Lead* mg /liter 5.0*
Mercury* mg /liter .2*
Molybdenum* mg /liter 2.0*
Nickel* mg /liter 2.0*
Selenium* mg /liter 1.0*
Silver* mg /liter 5.0*
Zinc* mg /liter 5.0*
06/18/2001 11:38 AM
Agreement No .DMF01
Page 4 of 26
BOD5 Lbs 2,000 7,500
Soluble BOD5 Lbs 1,800 7,500
TSS Lbs 500 2,450
Chlorine Residual mg /liter 0.50
*This is the current discharge limit for this parameter per Chapter 7.65 of the Yakima
Municipal Code. A new set of technically based discharge limits have been calculated and
submitted to Ecology. As new discharge limits are approved, from time to time, they will
be incorporated into this agreement.
**The City shall clean the City's wastewater pipeline between the Del Monte facility and
the Wastewater Treatment Facility. After cleaning the wastewater pipeline, the City and
Del Monte shall study the pH of Process Wastewater as it travels through the wastewater
pipeline to assess methods to optimize transport and treatment systems in order to
prevent treatment upsets at the Wastewater Treatment Facility (the "pH Study"). The pH
Study may include evaluation of pH changes during transport in the pipeline, pipeline
repair and maintenance issues, optimal locations for pH adjustment, and non - permitted
discharges, seeps and leaks into the pipeline. The City and Del Monte may implement the
recommendations of the study in future years.
The "Daily Maximum" is defined as the greatest value allowed for any calendar day.
The "Weekly Maximum" is defined as the greatest value allowed for any calendar week.
"HEM" is defined as Hexane Extracted Material as measured by EPA's Method 1664:
Guidelines Establishing Test Procedures for the Analysis of Oil and Grease and Non -Polar
Material.
C. DISCHARGE PROHIBITIONS
Del Monte shall not discharge wastewater containing the following substances that
meet any of the criteria listed below from any discharge point:
General Prohibitions: No user shall introduce or cause to be introduced into the
POTW any pollutant or wastewater that causes pass through or interference.
These general prohibitions apply to all users of the POTW whether or not they are
subject to categorical pretreatment standards or any other federal, state, or local
pretreatment standards or requirements.
Specific Prohibitions: No user shall discharge or otherwise introduce into the POTW
the following pollutants, substances, or wastewater, unless otherwise allowed by
this agreement:
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1. Any liquids, solids, or gases which by reason of their nature or quantity
are, or may be, sufficient either alone or by interaction to cause fire or
explosion or to be injurious in any other way to the operation of the
POTW, including, but not limited to, wastestreams with a closed cup
flashpoint of Tess than one hundred forty (140) degrees Fahrenheit or
sixty (60) degrees Centigrade using the test methods specified in 40
CFR 261.21. At no time shall two successive readings on a combustible
gas meter, at the point of discharge into the system (or at any point in
the system), be over five percent (5 %), nor any single reading over ten
percent (10 %) of the lower explosive limit (LEL) of the meter. Prohibited
materials include, but are not limited to, gasoline, fuel oil, kerosene,
naphtha, benzene, toluene, xylene, ethers, alcohols, ketones,
aldehydes, . peroxides, chlorates, perchlorates, bromates, carbides,
hydrides, sulfides, and any other substances which are a fire hazard or
hazard to the POTW.
2. Solid or viscous substances in quantities or of such size that they will or
may cause reduction of the effective cross - sectional area of a sewer,
obstruction to the flow in a sewer, or other interference with the
operation of the POTW, including but not limited to, ashes, bones, rocks,
gravel, cement, tile, ceramics, roots, cinders, sand, dirt, mud, straw,
shavings, metal, bark, cloth, tires, boots, hoses, glass, rags, feathers,
tar, plastics, wood, whole blood, paunch manure, fat, glue, bottles,
grease, toys, combs, cosmetics, hair and fleshings, entrails and paper
dishes, paper towels, paper bags, milk containers, and any garbage or
putrescible material that has not been properly shredded (see section
7.65.020 (49)). In no case may solids greater than one -fourth (1/4) inch
in any dimension be discharged to the POTW.
3. Any wastewater having a pH Tess than 5.5 or, higher than 9.0, or having
any other corrosive property capable of causing damage or hazard to
structures, equipment, or personnel of the system unless allowed by
Section B above.
4. Any wastewater having a BOD5 of more than three hundred (300) mg /L
unless allowed by Section B above.
5. Any wastewater having a TSS content of more than three hundred (300)
mg /L unless allowed by Section B above.
6. Any wastewater having a chlorine demand of more than twenty (20)
mg /L.
7. Any wastewater having an animal /vegetable (polar) based floatable oil,
fat waste, oil, or grease (whether or not emulsified), hexane or ether -
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soluble matter content in excess of one hundred (100) mg /L; or a
mineral /petroleum (non - polar) based oil or grease (whether or not
emulsified), hexane or ether - soluble matter content in excess of one
hundred (100) mg /L; or any petroleum oil, nonbiodegradable cutting oil,
or products of mineral oil origin in amounts that will cause interference
or pass through; or any substance which may solidify or become
discernibly viscous at temperatures above zero degrees Centigrade (0
degrees C)(32 degrees F).
8. Any wastewater containing pollutants in sufficient quantity or
concentration, either singly or by interaction, to injure or interfere with
any wastewater treatment process, constitute a hazard to humans or
animals, or to exceed the limitation set forth in categorical pretreatment
standards, or state or local standards.
9. Any pollutants which result in the presence of toxic, noxious or
malodorous liquids, gases, vapors, fumes, or solids within the POTW in
a quantity that which either singly or by interaction are capable of
creating a public nuisance or hazard to life or causing acute worker
health and safety problems, or are sufficient to prevent entry into the
sewers for their maintenance and repair.
10. Any substance that may cause the POTW 's effluent or treatment
residues, biosolids, or scums, to be unsuitable for reclamation and reuse
or to interfere with the reclamation process. In no case shall a
substance be discharged to the POTW that will cause the POTW to be
in noncompliance with biosolids use or disposal criteria, guidelines or
regulations developed under section 405 or 503 of the Act; or with any
criteria, guidelines, or regulations affecting biosolids use or disposal
developed pursuant to the Solid Waste Disposal Act, 42 U.S.C. 6901 et
seq., as now or as it may be amended, the Clean Air Act, 42 U.S.C.
7401 et seq., as now or as it may be amended, the Toxic Substances
Control Act (TSCA), 15 U.S.C. 2601 et seq., as now or as it may be
amended, or similar state statutes or regulations applicable to the
biosolids management method being used.
11. Any substance that will cause the POTW to violate its NPDES and /or
other disposal system agreements.
12. Any wastewater which imparts color which cannot be removed by the
treatment process, such as, but not limited to, dye wastes and vegetable
tanning solutions, which consequently imparts color to the treatment
plant's effluent thereby violating the City's NPDES agreement. Color,
alone or in combination with turbidity, shall not cause the treatment plant
effluent to reduce the depth of the compensation point for photosynthetic
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activity by more than ten percent (10 %) from the seasonably established
norm for aquatic life.
13. Any wastewater with a temperature which will inhibit biological activity in
the POTW treatment plant resulting in interference; but in no case,
wastewater with a temperature at the introduction into the POTW which
exceeds forty degrees Centigrade (40 degrees C) (104 degrees F).
14. Any slugload, which shall mean any pollutant, including oxygen
demanding pollutants (SOD, etc.), released in a single extraordinary
discharge episode of such volume or strength as to cause a violation of
this Agreement, including, but not limited to, the following: interference
to the POTW, or flowrate exceeding the peak flow as set forth in this
agreement, or ten percent (10 %) of the capacity of the available trunk
sewer, whichever is greater.
15. Any sludges, screenings, or other residues from the pretreatment of
industrial wastewater discharges.
16. Any wastewater containing any radioactive wastes or isotopes of such
halflife or concentration as exceed limits established by the City in
compliance with applicable state or federal regulations, including but not
limited to WAC 173 -201A -050 and USEPA's Drinking Water Regulations
for Radionuclides as published in the Federal Register as of July 9,
1976 or subsequent revisions thereof.
17. Any wastewater which causes a hazard to human life or creates a public
nuisance.
18. Any trucked or hauled pollutants, except pursuant to section 7.65.420.
19. Any medical wastes.
20. Any wastewater causing the treatment plant's effluent to fail a Whole
Effluent Toxicity test as required by its NPDES agreement.
21. Any wastes containing detergents, surface active agents, or other
substances in such concentrations that they may cause excessive
foaming in the POTW.
22. Any dangerous wastes as defined in chapter 173 -303 of the Washington
Administrative Code (WAC), as now or as it may be amended.
23. Any wastewater containing Lignin Sulfate.
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24. Any discharge of Process Wastewater more than seven (7) days per
week.
25. Persistent pesticides and /or pesticides regulated by the Federal
Insecticide Fungicide Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq., as
now or as it may be amended, including, but not limited to:
Federal EPA Toxicity
Characteristic Leaching
Material Procedure Limit (mg /L)
Aldrin 0.0
Dieldrin 0.0
chlordane 0.030
2,4 -D 10.000
4,4' -DDT 0.0
4,4' -DDX (p,p' -DDX) 0.0
4,4' -DDD (p,p' -TDE) 0.0
a- endosulfan -Alpha 0.0
b- endosulfan -Beta 0.0
endosulfan sulfate 0.0
endrin 0.020
endrin aldehyde 0.0
heptachlor 0.008
heptachlor epoxide 0.0
a -BHC -Alpha 0.0
b -BHC -Beta 0.0
c- BHC- (Iindane) -Gamma 0.0
g -BHC -Delta 0.0
Lindane 0.400
Methoxychlor 10.000
Pyridine 5.000
Silvex 1.000
Toxaphene 0.500
0.0 shall mean less than the mean detection limit (MDL) of the techniques prescribed in
40 CFR part 136. If 40 CFR part 136 does not contain sampling or analytical techniques
for the pollutant in question, sampling and analyses must be performed in accordance
with procedures approved by the EPA.
PART II - MONITORING REQUIREMENTS
A. DISCHARGE POINT MONITORING REQUIREMENTS
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All samples, excluding pH, temperature, conductivity, and dissolved oxygen, shall
be submitted to an Ecology accredited laboratory (refer to Part V. E.). The
industrial user shall monitor discharge point DM -01 and comply with the following
monitoring requirements:
Unit of Sampling Type of
Parameter Measurement Frequency Sample
Flow gpd Daily Totalizer reading
pH units Daily Grab
Conductivity umhos/cm Daily 24HC
BOD5, Total* mg/I Daily 24HC
BOD5, Soluble* mg/I Daily 24HC
TSS* mg/I Daily 24HC
TDS* mg/I Daily 24HC
Temperature degrees F Daily Grab
DO mg/I 1 x/ 30 days ** Grab
Sulfite mg/I 1 x/ 30 days** 24HC
Ammonia mg/I 1 x/ 30 days ** 24HC
TKN mg/I 1 x/ 30 days ** 24HC
HEM mg/I 1 x/ 30 days ** Grab
Arsenic mg/I Every 5 years 24HC
Cadmium mg/I Every 5 years 24HC
Chromium mg/I Every 5 years 24HC
Copper mg/I Every 5 years 24HC
Cyanide mg/1 Every 5 years Grab Composite
Lead mg/I Every 5 years 24HC
Mercury mg /I Every 5 years 24HC
Molybdenum mg/I Every 5 years 24HC
Nickel mg/I Every 5 years 24HC
Silver mg/1 Every 5 years 24HC
Selenium mg/I Every 5 years 24HC
Zinc mg /I Every 5 years 24HC
Priority Pollutants see note 1 below Once during first year of Agreement
* These parameters shall be sampled and tested by City personnel.
** "1 x/ 30 days" means one time every thirty (30) days that Del Monte discharges
Production Wastewater
Notes:
1. Del Monte shall perform chemical analyses on its final effluent for priority pollutants
listed in Table I I of Appendix D of 40 CFR, Part 122.
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2. All samples must be handled in accordance with the specific container storage
requirements, preservation techniques, and holding times identified in 40 CFR
136.3, Table II, to ensure sample integrity.
3. All sampling will be conducted in accordance with USEPA's Industrial User
Inspection and Sampling Manual for POTWs, 1994.
4. A "24 -hour composite (24HC)" sample shall mean a flow - proportioned mixture of
not less than 8 discrete aliquots. Each aliquot shall be a grab sample of not less
than 100 ml and shall be collected, composited, and preserved in accordance with
40 CFR, Part 136 and amendments.
5. A "Grab" sample is an individual sample collected in less than 15 minutes, without
regard for flow or time. Grab samples will be collected during business hours.
6. A "Grab - composite" is a minimum of four grab samples collected, composited, and
preserved over a 24 -hour period to provide a representative sample of effluent
being discharged.
7. Cyanide sampling will consist of 4 individual daily grab samples to conform to
representative EPA sampling requirements during business hours. Cyanide
samples may be composited.
8. Individual grab samples for cyanide analyses will be checked for sulfide and
chlorine residual interferences before the sample is preserved with sodium
hydroxide to insure sample integrity.
9. Violation of effluent limits other than BOD5, TSS and pH shall require resampling
daily until two successive samples are in compliance for all of the parameters with
limits.
10. After one year of sampling, Del Monte may petition the City to modify the sampling
frequency in their industrial wastewater agreement.
PART III - REPORTING REQUIREMENTS
A. REPORTING OF MONITORING RESULTS
Monitoring results in Part II of this agreement shall be summarized each month on
a Discharge Monitoring Report (DMR) form. The report form will be provided by the
City. The reports shall be submitted each month and are to be post marked by the
15th of the following month. In the event that additional monitoring is conducted, all
results shall be contained in the report. Legible copies of these and all other
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reports required by this agreement shall be signed and certified in accordance with
the requirements of Part V, Section J, Signatory Requirements, and submitted to
the City Environmental Analyst at the following address:
City of Yakima
Wastewater Treatment Facility
Attn: Environmental Analyst
2220 E. Viola
Yakima, WA 98901
B. NOTIFICATION OF VIOLATION
If self - monitoring analytical results indicate a violation of discharge limits contained
in this agreement, Del Monte must notify the City within 24 hours of becoming
aware of the violation. Del Monte must also repeat the sampling and submit the
analysis to the City within 30 days of becoming aware of the violation.
C. ACCIDENTAL OR SLUG DISCHARGE
The industrial user shall notify the City immediately, either by person or by phone
(509 575 - 6077), upon any accidental or slug discharge to the sanitary sewer.
Formal written notification discussing circumstances and corrective actions shall be
submitted to the City within five days of each occurrence.
D. CHANGES IN WASTEWATER CHARACTERISTICS
The industrial user shall notify the City, in person or by phone, 10 days prior to any
substantial change in the volume or characteristics of the wastewater being
introduced into the POTW from Del Monte's industrial processes. Formal written
notification, including facsimile transmission, shall be made during regular business
hours at least two business days prior to such introduction, and Del Monte shall
obtain approval from the City to do so. Such approval shall not allow Del Monte to
violate any of the limitations set forth in this agreement.
E. UPSET
1. Definition
For the purpose of this section, "Upset," means an exceptional incident in
which there is unintentional and temporary non - compliance with applicable
pretreatment standards because of factors beyond the reasonable control of
Del Monte. An upset does not include non - compliance to the extent caused
by operational error, improperly designed treatment facilities, inadequate
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treatment facilities, lack of preventive maintenance, careless and/or
improper operation.
2. Conditions Necessary for a Demonstration of Upset
If Del Monte wishes to establish the affirmative defense of an upset, Del
Monte shall demonstrate, through properly signed, contemporaneous
operating logs or other relevant evidence, that:
a. An upset occurred and Del Monte can identify the specific cause(s) of
the upset;
b. The facility was, at the time, being operated in a prudent and
workman -like manner and in compliance with applicable operation
and maintenance procedures; and
c. Del Monte has submitted the following information to the City within
24 hours of becoming aware of the upset (if this information is
provided verbally, a written submission must be provided within five
days):
(1) A description of the indirect discharge and cause of non-
compliance.
(2) The period of non - compliance, including exact dates and
times, or if not corrected, the anticipated time the non-
compliance is expected to continue.
(3) Steps being taken and /or planned to reduce, eliminate, or
prevent recurrence of the non - compliance.
3. Burden of Proof
In any enforcement proceeding, if Del Monte seeks to establish the
occurrence of an upset, it shall have the burden of proof.
4. Del Monte Responsibility in Case of Upset
Del Monte shall control production of all discharges to the extent necessary
to maintain compliance with applicable pretreatment standards upon
reduction, loss, or failure of its pretreatment facility until the facility is restored
or an alternative method of treatment is provided. This requirement applies
in the situation where, among other things, the primary source of power of
the pretreatment facility is reduced, lost, or fails.
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PART IV - SPECIAL CONDITIONS /COMPLIANCE SCHEDULES
A. ACCIDENTAL SPILL PREVENTION PLAN (ASPP)
Del Monte must develop an ASPP for hazardous substances. The plan shall be
submitted to the City's pretreatment office by July 25, 2001. Once the City
approves the plan, Del Monte shall implement the ASPP by the sooner of thirty (30)
days or one week prior to discharge. The ASPP, developed by Del Monte, shall
address the following categories of management practices:
1. Prevention —The plan must include prevention practices—i.e. monitoring
systems, non - destructive testing, labeling, covering or enclosing materials,
equipment or process operations, and other techniques used to prevent
materials or spills.
2. Containment—Containment practices used to contain or capture releases of
materials within the industrial premises.
3. Mitigation -- Mitigation practices for the cleanup and treatment of spill
materials.
4. Ultimate Disposition -- Practices for the proper disposal of spilled materials.
5. Education and Training—Education and training of staff on proper
procedures.
Examples of management practices include, but are not limited to, the following:
1. If appropriate, Del Monte shall obtain a hazardous waste generator number
from EPA or the state for proper disposal of hazardous wastes.
2. Del Monte shall use spill prevention practices to preclude the discharge of
any substance that violates the General Discharge Prohibitions conditions of
this agreement.
3. In the event of a concentrated solutions spill, such as a tank failure, Del
Monte shall not discharge any spilled solution into the municipal sewer
system unless laboratory test results indicated that the substance meets the
conditions of this agreement. Del Monte shall receive approval from the City
prior to any discharge of spilled solution.
4. Del Monte shall maintain and inspect all process solution tanks on a regular
basis. Any leaks shall be repaired promptly.
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5. Any spent plating, etching, and other concentrated process tank solutions,
which are not or cannot be pretreated to meet agreement discharge limits,
shall be disposed of according to the Hazardous Waste Regulations of the
State of Washington and EPA.
6. Del Monte shall forward the following information regarding any
concentrated process tank solutions to the City prior to discharge to the
sewer system:
a. Volume of tank;
b. Method used to treat the discharge to meet the effluent limits of this
agreement; and
c. Heavy metals content, pH, and cyanide concentrations of the treated
discharge.
Any concentrated solution tank discharge which has not been approved by
the City, or whose contents do not meet effluent limits of this agreement,
shall be treated as a discharge violation of the agreement and subject to
penalty.
PART V - STANDARD CONDITIONS
A. COMPLIANCE
Del Monte shall comply with all the Effluent Limitations and Discharge Prohibitions
contained in this agreement and is responsible to take whatever steps are
necessary to ensure discharge requirements of this agreement are met.
B. INSPECTION AND ENTRY
Del Monte shall allow the City of Yakima Environmental Analyst, or an authorized
representative, upon the presentation of credentials and other documents as may
be required by law, which may include a judicial inspection warrant, to:
1. Enter upon Del Monte's premises where a regulated facility or activity is
located or conducted, or where records must be kept under the conditions of
this agreement;
2. Have access to and copy, at reasonable times, any records that must be
kept under the conditions of this agreement;
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3. Inspect at reasonable times any facilities, equipment (including monitoring
and control equipment), practices, or operations regulated or required under
this agreement;
4. Sample or monitor for the purposes of assuring agreement compliance, any
substances or parameters at any location; and
5. Inspect any production, manufacturing, fabricating, or storage area where
pollutants, regulated under the agreement, could originate, be stored, or be
discharged to the sewer system.
C. RECORD RETENTION
1. Del Monte shall retain and preserve for no less than three (3) years any
records, books, documents, memoranda, reports, correspondence, and any
and all summaries relating to monitoring, sampling, and chemical
analyses made by or in behalf of Del Monte in connection with its discharge.
2. All records pertaining to matters that are the subject of special orders or any
other enforcement or litigation activities brought by the City, shall be retained
and preserved by Del Monte. All records shall be retained until all
enforcement activities have concluded and all periods of limitation, with
respect to any and all appeals, have expired.
3. All records required by the agreement shall be available for review at
reasonable times by authorized representatives of the City.
D. RECORDING OF RESULTS
For each measurement or sample taken pursuant to the requirements of this
agreement, the user shall record, at a minimum, the following information:
1. The exact place, date, and time of sampling;
2. Who performed the sampling and measurements;
3. The dates the analyses were performed;
4. The person(s) who performed the analyses;
5. The analytical techniques or methods used;
6. The results of all required analyses; and
7. Copies of the Chain of Custody form.
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E. ANALYTICAL METHODS
All analyses to determine compliance with agreement limits shall be performed in
accordance with 40 CFR, Part 136, "Guidelines Establishing Test Procedures for
the Analysis of Pollutants under the Clean Water Act" and amendments, or with any
other current test procedures approved by EPA.
Analytical techniques for additional pollutants not contained in Part 136 must be
performed by using validated analytical methods approved by EPA [40 CFR
403.12(b)(5)(vi)].
An Ecology accredited laboratory shall perform the analysis of samples collected
pursuant to the requirements of this agreement.
F. CONFIDENTIAL INFORMATION
Except for data determined to be confidential, all reports required by this agreement
shall be available for public inspection at the City of Yakima's Pretreatment Office.
G. PROPER OPERATION AND MAINTENANCE
Del Monte shall keep and maintain an operation and maintenance log on all
facilities and systems of treatment and control (and related appurtenances), which
are installed or used by Del Monte to achieve compliance with the conditions of this
agreement. The language in the agreement referring to "pretreatment" refers to
both administrative measures and physical systems. Proper operation and
maintenance includes, but is not limited to effective performance, adequate funding,
adequate operator staffing and training, and adequate laboratory and process
controls, including appropriate quality assurance - procedures. This provision
requires the operation of backup or auxiliary facilities or similar systems only when
necessary to achieve compliance with the conditions of the agreement.
Water conservation practices, i.e., turning off hoses and faucets when not in use,
source reduction, reuse, recycling, shall be used to reduce total effluent volume.
Incoming rinse water shall be turned off and shut -off devices shall be closed at all
times that the plant is not operating, i.e., nights, weekends, and holidays, to prevent
accidental spills. Waste preventative practices shall be used to reduce or eliminate
contaminate loading to the municipal sewer system. These will include, but will not
be limited to, minimizing excessive dragout of cleaning, stripping, etching, and
plating solutions. In addition, the following practices shall be used:
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1. Chemicals stored in bulk chemical storage buildings shall be stored in a
manner that will prevent the entry of these solutions into the sanitary sewer,
storm sewer, or waters of the state. Such liquid chemicals will be stored in a
no- outlet area approved by the City. Process tanks shall be located in an
area capable of containing 110 percent of the volume of the largest tank.
This area shall have no- outlet to the city sewer systems or waters of the
state.
Storage for waste chemicals, chemical sludges, paint sludges, or other
hazardous waste shall be stored in approved containers inside a bermed
area. The storage area shall be located at least 30 feet from the nearest
sewer drain, outlet, or approved bermed area, in order to prevent spills to the
sanitary system, storm sewer system, or waters of the state. Del Monte
shall install shut -off devices to all drains in any hazardous waste storage
areas.
Bulk chemicals shall be stored and dispensed only in roofed and bermed
areas that eliminate potential spills to the sanitary sewer system, storm
sewer system, or waters of the state.
2. No paint booth wastes or solvents shall be discharged to the sanitary sewer
unless they meet the provisions of this agreement, and are approved by the
City.
3. Del Monte shall provide access to a water and/or sewer meter that can
provide accurate information regarding industrial process wastewater, and
cooling water discharges to the sewer.
H. DILUTION
Del Monte shall not increase the use of potable or process water, or otherwise
intentionally attempt to dilute the final discharge as a partial or complete substitute
for adequate treatment to achieve compliance with the limitations contained in this
agreement.
PROPER DISPOSAL OF PRETREATMENT SLUDGES AND SPENT
CHEMICALS
The disposal of generated sludges and spent chemicals shall be done in
accordance with Section 405 of the Clean Water Act and Subtitles C and D of the
Resource Conservation and Recovery Act, and any state hazardous waste
requirements.
J. SIGNATORY REQUIREMENTS
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All applications, reports, or information submitted to the City shall be signed and
certified as follows:
1. All agreement applications shall be signed by the Area Manager.
2. All reports required by this agreement and other information requested by
the City shall be signed by a person described above, or by a duly
authorized representative of that person. A person is a duly authorized
representative only if:
a. The authorization is made in writing by a person described above and
submitted to the City, and
b. The authorization specifies either an individual or a position having
responsibility for the overall operation of the regulated facility, such as
the position of plant manager, superintendent, position of equivalent
responsibility, or an individual or position having overall responsibility
for environmental matters. (A duly authorized representative may
thus be either a named individual or any individual occupying a
named position.)
3. If an authorization under J.2.b is no longer accurate because a different
individual or position has responsibility for the overall operation of the facility,
a new authorization satisfying the requirements of J.2.b must be submitted
to the City prior to or together with any reports, information, or applications to
be signed by an authorized representative.
4. Any person signing a document under this section shall make the following
certification:
" 1 certify under penalty of law that this document and all attachments were
prepared under my direction or supervision in accordance with a system
designed to assure that qualified personnel properly gathered and evaluated
the information submitted. Based on my inquiry of the person or persons
who manage the system or those persons directly responsible for gathering
information, the information submitted is to the best of my knowledge and
belief, true, accurate, and complete. I am aware that there are significant
penalties for submitting false information, including the possibility of fine and
imprisonment for knowing violations."
K. EMERGENCY SUSPENSION OF SERVICE AND REVOCATION OF
AGREEMENT
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The City may, without advance notice, order the suspension of the wastewater
treatment service and revoke the Industrial Wastewater Discharge Agreement to
Del Monte when an actual or threatened discharge:
1. Presents or threatens an imminent or substantial danger to the health or
welfare of persons or substantial danger to the environment; or
2. Threatens to materially interfere with the operation of the POTW and violates
any pretreatment limits imposed by the code.
Del Monte, upon notification of the City's suspension order, shall immediately
cease all discharges. In the event of failure of Del Monte to comply with
suspension orders, the City may immediately take all necessary steps to halt or
prevent any further discharge from Del Monte into the POTW. The City shall have
the authority to physically cap, block, or seal Del Monte's sewer line (whether public
or private property) in order to terminate service. The City shall have the right to
enter upon Del Monte's property to accomplish the capping, blocking, or sealing of
Del Monte's sewer line. The City may also commence judicial proceedings
immediately thereafter to compel Del Monte's specific compliance with such order
and/or to recover civil penalties. Del Monte shall pay the City's attorney's fees and
costs associated with such judicial proceedings.
The City shall reinstate the Industrial Wastewater Discharge Agreement and/or
wastewater treatment service upon clear and convincing proof by Del Monte of the
elimination of the non - complying discharge or conditions creating the threat as set
forth above.
L. LIMITATION OF AGREEMENT TRANSFER
Wastewater discharge agreements are issued to a specific user for a specific
operation and are not assignable to another business or company, or transferable
to any other location without the prior written approval of the City. Sale of Del
Monte's business shall obligate the purchaser to seek prior written approval of the
City for continued discharge to the city sewer system.
M. FALSIFYING INFORMATION OR TAMPERING WITH MONITORING
EQUIPMENT
Knowingly making any false statement on any report or other document required by
this agreement or knowingly rendering any monitoring device or method inaccurate
may result in punishment under the criminal laws of the City, as well as being
subjected to civil penalties.
N. MODIFICATION OR REVISION OF THE AGREEMENT
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1. The terms and conditions of this agreement may be subject to modification
by the City at any time that limitations or requirements, as identified in the
City's ordinance, are modified or other just cause exists.
2. This agreement may also be modified to incorporate special conditions
resulting from the issuance of a special order.
3. The terms and conditions may be modified as a result of EPA promulgating
a new federal pretreatment standard.
4. Any agreement modifications that result in new conditions in the agreement
shall include a reasonable time schedule for compliance as necessary.
5. Del Monte may file a request for agreement modification or revision provided
such request does not create a violation of any existing applicable
requirements, standards, laws, or rules and regulations.
O. DUTY TO REAPPLY
The City shall notify Del Monte 180 days prior to the expiration of Del Monte's
agreement. Within 90 days of the notification, Del Monte shall reapply for
reissuance of the agreement on a form provided by the City.
P. SEVERABILITY
If any position, paragraph, word, or section of this agreement is invalidated by any
court of competent jurisdiction, the remaining provisions, paragraphs, words, and
sections shall not be affected and continue in full -force and effect.
Q. PROPERTY RIGHTS
The issuance of this agreement does not convey any property rights in either real or
personal property or any exclusive privileges, nor does it authorize any invasion of
personal rights, nor any infringement of federal, state, or local regulations.
R. FLOW MEASUREMENTS
For flow measurements required by this agreement, the appropriate flow
measurement devices and methods consistent with approved scientific practices
shall be selected and used to ensure the accuracy and reliability of measurements
of the volume of monitored discharges. The devices shall be installed, calibrated,
and maintained to ensure that the accuracy of the measurements are consistent
with the accepted capability of that type of device. These devices shall be owned
and maintained by Del Monte. Devices selected shall be capable of measuring
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flows with a maximum deviation of less than five percent (5 %) from true discharge
rates throughout the range of expected discharge volumes. If measuring
discrepancies are noted by the City, Del Monte agrees to test the flow measuring
device for accuracy and to make necessary repairs, corrections, or maintenance.
Whenever the flow measurement device is replaced, such replacement device shall
be calibrated annually and must be approved by the City before installation.
S. BYPASS OF TREATMENT FACILITIES
1. Definitions:
a. "Bypass" means the intentional diversion of wastestreams from any
portion of Del Monte's treatment facility.
b. "Severe property damage" means substantial physical damage to
property, damage to the treatment facilities, which causes them to
become inoperable, or substantial and permanent loss of natural
resources, which can reasonably be expected to occur in the
absence of a bypass. Severe property damage does not mean
economic loss caused by delays in production.
2. Bypass Not Violating Applicable Pretreatment Standards or Requirements
Del Monte may allow any bypass to occur which does not cause applicable
pretreatment standards or requirements to be violated, but only if it is also
for essential maintenance to assure efficient operation. These bypasses
are not subject to the provision of paragraphs 3 and 4 of this section.
3. Notice:
a. If Del Monte knows in advance of the need for a bypass it shall
submit notification to the City, if possible, at least ten (10) days prior
to the date of the bypass.
b. Del Monte shall submit verbal notice of unanticipated bypass that
exceed applicable pretreatment standards to the City within 24 hours
from the time Del Monte becomes aware of the bypass. A written
submission shall also be provided within five (5) days of the time Del
Monte becomes aware of the bypass. The written submission shall
contain a description of the bypass and its cause, the duration of the
bypass, including exact dates and times and, if the bypass has not
been corrected, the anticipated time it is expected to continue and the
steps taken or planned to reduce, eliminate, and prevent recurrence
of the bypass. The City may waive the written report on a case -by-
case basis if the verbal report has been received within 24 hours.
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4. Prohibition of Bypass
a. Bypass is prohibited and the City may take enforcement action
against Del Monte for a bypass, unless:
(1) Bypass was unavoidable to prevent loss of life, personal injury,
or severe property damage;
(2) There were no feasible altematives to the bypass, such as the
use of auxiliary treatment facilities, retention of untreated
wastes, or maintenance during normal periods of equipment
downtime. This condition is not satisfied if adequate backup
equipment should have been installed in the exercise of
reasonable engineering judgment to prevent a bypass which
occurred during normal equipment downtime or preventative
maintenance; and
(3) Del Monte submitted notices as required under paragraph 3 of
this section.
b. The City may approve an anticipated bypass, after considering its
adverse effect, if the City determines that it will meet the three
conditions listed in paragraph a of this section.
T. ENFORCEMENT AND SURCHARGES
The City may seek any or all of the remedies or penalties provided in the Municipal
Code Chapter 7.65, including recovery costs incurred by the City, in response to
the following:
1. Any violation by Del Monte of any provision of this Industrial Wastewater
Discharge Agreement;
2. Any violation by Del Monte of any provision of the City code; and
3. Any violation by Del Monte of any Orders issued by the City with respect to
provisions set forth in the City Code.
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The range or severity of remedial actions taken by the City against Del Monte will
be determined by, but not limited to factors such as the nature, duration, frequency,
etc., of the violation.
U. CH2M HILL STUDY; REOPENER
1. The effluent limitations set forth in Part I, Section B above are predicated upon
the Parties' assumption that the study described in this Section U demonstrates
that the City's Wastewater Treatment Facility is capable of handling a waste
stream from Del Monte with such characteristics.
2. Study. Between July 1, 2001 and November 30, 2001, CH2M Hill shall perform
a study and analysis of Del Monte's discharges to the City's Wastewater
Treatment Facility (the "Study"). The Study shall be at the direction and control
of the City, with appropriate input from Del Monte, and shall be funded by Del
Monte. The purpose of the Study shall be to analyze the appropriateness of the
effluent limitations set forth in Part 1, Section B above and the capability of the
Wastewater Treatment Facility to treat Del Monte's wastewater discharges
seven (7) days per week. Based on partial or full Study results, the City will
make a determination regarding whether the Wastewater Treatment Facility can
continue to comply with its permit requirements and meet anticipated growth
while accepting Del Monte wastewater at the effluent limitations set forth in Part
I, Section B above on a seven -day - per -week basis (the "Determination ").
3. Reopener. If the City reasonably concludes in its Determination that said
effluent limitations should be revised or that the Wastewater Treatment Facility
is not capable of treating Del Monte's wastewater discharges seven (7) days per
week, then the City and Del Monte shall negotiate in good faith to: (1) revise the
effluent limitations and /or number of days per week that Del Monte shall be
permitted to discharge wastewater to the Wastewater Treatment Facility and;
(2) consider such other altematives as may be appropriate.
4. Formal mediation. If the Parties are unable to reach an agreement through such
good faith negotiations, the Parties shall submit this matter to mediation and /or
conciliation under the auspices of the U.S. Institute for Environmental Conflict
Resolution (the "Institute"), headquartered in Tucson, Arizona, at a location as
near as practicable to Seattle, Washington, subject to the availability of senior
staff from the Institute and /or qualified mediators contracted under the auspices
of the Institute. In the event this matter is submitted to mediation and /or
conciliation, the Parties shall equally share the cost thereof.
5. Application of Baseline Effluent Limitations. For purposes of this section,
"Baseline Effluent Limitations" means effluent limitations that apply_on a five day
per week basis during the Primary Pack and are adequate to cover, but not
exceed, Del Monte's actual discharge during the fall of 2000, as specified in
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subsection 6 below. Baseline Effluent Limitations shall supercede the effluent
limitations set forth in Part I, Section B in the event that the Parties are unable to
reach prompt agreement pursuant to subsection 3 of this Section U. Baseline
Effluent Limitations shall apply upon twenty -four (24) hours notice from the City
to Del Monte that prompt agreement under subsection 3 has not been achieved,
which notice the City shall have the sole discretion to issue, provided that the
City shall not exercise its discretion unreasonably. Baseline Effluent Limitations
shall apply from the effective date of such notice until an agreement has been
reached pursuant to subsection 3 or 4 of this Section U, or until the Parties
otherwise resolve issues relating to the City's Determination, whichever occurs
first.
6. Baseline Effluent Limitations. The Baseline Effluent Limitations are as follows
for hydraulic flow, BOD5, soluble BOD5, and TSS. Baseline Effluent Limitations
for other parameters are as set forth in Part 1, Section B above. When Baseline
Effluent Limitations apply, discharge is permitted only on a five -day -per week
basis.
Effluent Characteristic Unit of Measurement _Daily Maximum Weekly Maximum
Flow Gallons 450,000 2,125,000
BOD5 Pounds 15,313 73,625
Soluble BOD5 Pounds 14,406 74,710
TSS Pounds 4,000 18,500
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THE CITY OF YAKIMA Del Monte
Signed this ray of )/ 2001. Signed this \S day of �.s , 2001.
By:
Its: City Manager Its:
ATTEST: ATTEST:
City Clerk
eJe:te. Coo.n .1 e..1
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Agreement No .DMF01
Page 26 of 26
SUPPLEMENTAL RIDER
CITY OF YAKIMA
INDUSTRIAL WASTEWATER DISCHARGE AGREEMENT
This Supplemental Rider ( "Rider") is made to the City of Yakima Industrial
Wastewater Discharge Agreement dated June , 2001 (the "Wastewater Agreement "),
between Del Monte Corporation and the City of Yakima.
1. The City may impose a penalty surcharge on Del Monte discharges in excess of
effluent limitations provided in Part 1B of the Wastewater Agreement. Such surcharges
may be imposed in addition to, or in lieu of, other administrative or civil penalties set
forth in Chapters 7.60 and 7.65 of the Yakima Municipal Code, as they may be
amended. The City may impose a surcharge if Del Monte's effluent: (i) exceeds the
Daily Maximum Performance Standards for flow, biochemical oxygen demand ( "BOD "),
soluble BOD or total suspended solids ( "TSS "); or (ii) exceeds the Weekly Maximum
Performance Standards for flow, BOD, soluble BOD or TSS. Until such time as a
surcharge generally applicable to industrial customers is established in the Yakima
Municipal Code, the surcharge shall be in an amount equal to twenty percent (20 %) of
the standard charge for flow, BOD or TSS, as appropriate, as set forth in Chapters 7.60
and 7.65 of the Yakima Municipal Code, and shall be assessed on that portion of the
discharge in excess of the Performance Standards for flow, BOD, soluble BOD or TSS,
as appropriate. In the event a surcharge generally applicable to industrial customers is
established in the Yakima Municipal Code, such surcharge shall supercede the
surcharge set forth in this Rider.
PERFORMANCE STANDARDS
Effluent Unit of
Characteristics Measurement Daily Maximum Weekly Maximum
Flow gallons 525,000 3,255,000
BOD5 Lbs 17,000 112,000
Soluble BO Lbs 15,300 100,800
TSS Lbs 4,000 24,500
2. This Rider supplements the Wastewater Agreement. The terms and conditions
of the Wastewater Agreement shall apply to this Rider except as expressly stated
otherwise herein.
3. All defined terms shall have the meaning ascribed to them in the Wastewater
Agreement, unless such terms have been expressly defined in this Rider.
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THE CITY OF YAKIMA Del Monte
Signed this I5 day of 11 0 , 2001. Signed this tc, day of ' �,. , 2001.
‘ \tazNa."--to
Its: City Manager Its: g—,
ATTEST: ATTEST:
City Clerk
As10 c oeAtm
e1
6/18/01 9:59 AM
06/18/2001 9:59 AM