United States of America v. CalPortland Company

Filing 16

ORDER Approving 12 Modification to Consent Decree, signed by District Judge Anthony W. Ishii on 9/28/2015. (Gaumnitz, R)

1

1

2

2

3

3
4

4

5

5

6

6

7

7
8

UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
FRESNO DIVISION

8
9
9
10
10
11
12
11

UNITED STATES OF AMERICA,

13
12

ORDER APPROVING
MODIFICATION TO
CONSENT DECREE

Plaintiff,

14
13
15

14

16

15

No. 1:11-cv-2064-AWI-JLT

v.
CALPORTLAND COMPANY,

17

16

18

17

19

18

Defendant.
__________________________________/
This Court has read and considered the parties’ proposed modification to the

20

19

consent decree entered on February 10, 2012. The modification is designed to

20

allow for the inevitable short term variation in SO2 emissions inherent in operation

21

of the CalPortland Company (“CalPortland”) facility, but retain the 1.7 pounds of

22
24

SO2 per ton of clinker average emission cap. The proposed modification does so by

23
25

shifting the measurement period from a 30-day period to a 90-day period. The 30-

24
26

day public comment period has closed and no comments were received by the

25
27

United States. After full consideration of the proposed modification, the Court

28
26

determines the modification to be fair, reasonable, consistent with the Clean Air

27

Act, and in the public interest. As such the modification will be granted.

21
22
23

28
1

1

1

2

2

3

3
4

4

5

5

6

The United States and CalPortland have agreed, and this Court hereby
ORDERS the following amendments to the Consent Decree entered by the Court
in this action on February 8, 2012:
A. Paragraph 6 shall be amended to include the following definition:
(oo) “90-Day Rolling Average Emission Rate” shall mean the rate of

6

7

emission of SO2 expressed as pounds (lb) per Ton of clinker produced ("lb

7
8

SO2/Ton of clinker") at the Kiln and calculated in accordance with the following

8
9

procedure: first, sum the total pounds of SO2 emitted from the Kiln during an

9
10

Operating Day and the previous 89 Operating Days, as measured pursuant to

10
11

Section V.C. (Continuous Emission Monitoring Systems); second, sum the total

12
11

Tons of clinker produced by the Kiln during the same Operating Day and the

13
12

previous 89 Operating Days; and third, divide the total number of pounds of SO2

14
13

emitted from the Kiln during the 90 Operating Days referred to above by the total

15

14

Tons of clinker produced at the Kiln during the same 90 Operating Days. A new

16

90-Day Rolling Average Emission Rate shall be calculated for each new Operating

15

17

16

18

17

19

18
20

Day. Each 90-Day Rolling Average Emission Rate shall include all emissions of
SO2 from the Kiln during all periods of Kiln Operation on any Operating Day,
including emissions during each Startup, Shutdown, or Malfunction. If

19

CalPortland asserts that a Malfunction and any resulting Kiln Shutdown and

20

Startup is a Force Majeure event within the meaning of Section XI (Force

21

23

Majeure), CalPortland shall include all such emissions in the calculation of the 90-

22
24

Day Rolling Average Emission Rate, but shall not be subject to stipulated penalties

23
25

for a violation of an applicable emission limitation pursuant to Section X

24
26

(Stipulated Penalties) to the extent that emissions associated with the particular

25
27

Malfunction and any resulting Kiln Shutdown and Startup cause an emission

28
26

violation and the Malfunction and any resulting Kiln Shutdown and Startup is

27

determined to be a Force Majeure event under Section XI (Force Majeure) and

28

CalPortland has complied with the requirements of that Section.

21
22

2

1

1

2

2

3

3
4

B. Paragraph 19 shall be amended to read:
19. The final Emission Limits for NOx and SO2 submitted by CalPortland to
EPA as part of the Final Demonstration Report(s) pursuant to Section V (Control

4

Technology Demonstration Period) of Exhibit A shall not be greater than 2.5 lb of

5

NOx/Ton of clinker on a 30-Day Rolling Average and 1.7 lb of SO2/Ton of

6

7

clinker on a 90-Day Rolling Average. For CO, the final Emission Limit is a 30-

7
8

Day Rolling Average Emission Limit of 1.0 lb CO/Ton of clinker effective upon

8
9

the date of submission of the Demonstration Report required by Exhibit A subject

9
10

to Subparagraph 15(c)(i)-(iii) of this Consent Decree.

5
6

10
11
12
11

C. Paragraph 24 shall be amended to read:
24.

At any time prior to termination of this Consent Decree, CalPortland

13
12

may request EPA's approval to implement an alternative pollution control

14
13

technology for NOx or SO2 other than what is required by this Consent Decree. In

15

14

seeking such approval, CalPortland must demonstrate to EPA that such alternative

16

pollution control technology will: (a) achieve and maintain the applicable

15

17

16

18

17

19

18
20

Emission Limit established pursuant to Exhibit A or, (b) meet the applicable limits
established by the New Source Performance Standard, 40 C.F.R. Part 60 Subpart F
(NSPS Emission Limits) for NOx and/or SO2, if such limits are in effect and more

19

stringent than 2.5 lb of NOx/Ton of clinker on a 30-Day Rolling Average and 1.7

20

lb of SO2/Ton of clinker on a 90-Day Rolling Average. EPA’s decision on a

21

23

request is subject to the Section XII (Dispute Resolution) provisions of this

22
24

Consent Decree. CalPortland's request shall address when the alternative pollution

23
25

control(s) will be installed and operational, and for the NSPS Emission Limit(s) in

24
26

effect at the time, indicate when it will apply to the Kiln. After any approval by

25
27

EPA under this Paragraph of an alternative NSPS Emission Limit, CalPortland

28
26

shall continue to comply with all requirements of this Consent Decree, including

27

Exhibit A, until such time as CalPortland notifies the EPA in writing that it is

28

meeting the current NSPS Emission Limit(s) for NOx or SO2. As of that date, the

21
22

3

1

1

2

2

3

3
4

4

5

5

6

6

NSPS Emission Limit(s) for NOx and/or SO2 in effect at that time shall become
the Emission Limit(s) for all purposes under this Consent Decree, and CalPortland
would no longer be obligated to complete the test-and-set process set forth in
Exhibit A for the relevant pollutant.
D. Paragraph 45, Table 2 shall be amended to read as follows:
TABLE 2

7

7
8
8
9
9
10
10
11
12
11
13
12
14
13
15

CONSENT DECREE VIOLATIONS

STIPULATED PENALTY

Failure to pay the civil penalty as specified in Section IV
(Civil Penalty) of this Consent Decree

$5,000 for each Day

Failure to comply with the 30-Day Rolling Average
Emission Rate limitation for NOx, where the emissions are
less than 5% in excess of the limits set forth in this Consent
Decree

$1,500 for each Operating Day during any
30-Day Rolling Period

Failure to comply with the 90-Day Rolling Average
Emission Rate limitation for SO2, where the emissions
are less than 5% in excess of the limits set forth in this
Consent Decree

$750 for each Operating Day during any
90-Day Rolling Period

Failure to comply with the 30-Day Rolling Average
Emission Rate limitation for NOx, where the emissions are
equal to or greater than 5% but less than 10% in excess of
the limits set forth in this Consent Decree

$3,000 for each Operating Day during any
30-Day Rolling Period

Failure to comply with the 90-Day Rolling Average
Emission Rate limitation for SO2 where the emissions
are equal to or greater than 5% but less than 10% in
excess of the limits set forth in this Consent Decree

$1,500 for each Operating Day during any
90-Day Rolling Period

Failure to comply with the 30-Day Rolling Average
Emission Rate limitation for NOx, where the emissions are
equal to or greater than 10% in excess of the limits set forth
in this Consent Decree

$5,000 for each Operating Day during any
30-Day Rolling Period

Failure to comply with any 90-Day Rolling Average
Emission Rate limitation for SO2, where the emissions
are equal to or greater than 10% in excess of the limits
set forth in this Consent Decree

$2,500 for each Operating Day during any
90-Day Rolling Period

Failure to timely install or commence Continuous
Operation or Continuously Operate SNCR or LIS, as
required in Paragraphs 10 and 11 at the Kiln

$5,000 for each Day during the first 20 Days,
$10,000 for each Day for the next 40 Days,
and $30,000 for each Day thereafter

Failure to timely apply for any permit or permit amendment
required by Section VII (Permits)

$1,000 for each Day for each such failure

14

16

15

17

16

18

17

19

18
20

19

21

20

22

21

23

22
24
23
25
24
26
25
27
28
26

27
28

4

1

CONSENT DECREE VIOLATIONS

2

Failure to install or operate a CEMS in conformance with
the requirements of Section V.C. (Continuous Emission
Monitoring Systems), as applicable

$1,000 for each Day for each such failure

Failure to install or operate a Kiln System Ammonia
Injection Monitoring System in conformance with the
requirements of Section V.D. (Kiln Reagent Injection
Monitoring System)

$1,000 for each Day for each such failure

Failure to timely complete the Demonstration Period as
required by Section V of Exhibit A

$1,000 for each Day during the first 20 Days,
$2,500 for each Day for the next 40 Days, and
$5,000 for each Day thereafter

Failure to timely submit, modify, or implement, as
approved, any of the following reports required by Exhibit
A: (1) The Design Report; (2) the Optimization Protocol;
(3) the Optimization Report; or (4) the Demonstration
Period Final Report

$1,000 for each Day during the first 20 Days,
$2,500 for each Day for the next 40 Days, and
$5,000 for each Day thereafter

Failure to timely submit, modify, or implement, as
approved, any report, plan, study, analysis, protocol, or
other submittal required by this Consent Decree other than
those identified elsewhere in this table

$750 for each Day during the first 10 Days,
$1,000 for each Day thereafter

Any other violation of this Consent Decree, including
failure to optimize process parameters or Control
Technology parameters by the deadlines set forth in the
Consent Decree.

$1,000 for each Day for each violation

1
2

3

3
4

4

5

5

6

6

7

7
8
8
9
9
10
10
11

STIPULATED PENALTY

12
11
13
12
14
13
15

14

16

15

17

16

18

17

19

18
20

19

21

E. Paragraph 47 shall be amended to read as follows:
47.

Violations of any limit based on a 30-Day or 90-Day rolling average

20

22

constitutes 30 Days of violation or 90 Days of violations respectively but where

21

23

such a violation (for the same pollutant from the Kiln) recurs within periods less

22
24

than 30 Days for a 30-Day rolling average limit or 90 Days for a 90-Day rolling

23
25

average limit, CalPortland shall not be obligated to pay a daily stipulated penalty

24
26

for any Day of the recurrence for which a stipulated penalty has already been paid.

25
27

F. All additional references in the Consent Decree, including Exhibit A, to a

28
26

“30-Day Rolling Average Emission Rate” with respect to SO2 shall be amended to

27

read “90-Day Rolling Average Emission Rate” with respect to SO2.

28
5

1

1

G. All additional references in the Consent Decree, including Exhibit A, to a

2

“30-Day Rolling Average Emission Limit” with respect to SO2 shall be amended to

2

3

3
4

4

5

5

6

read “90-Day Rolling Average Emission Limit” with respect to SO2.
H. Paragraph 24 of Exhibit A shall be amended to read as follows:
24.

Notwithstanding Paragraphs 22 and 23 of this Exhibit A, in no event

6

7

shall the Final Emission Limits proposed in the Demonstration Report(s), be

7
8

greater than as specified in Paragraph 19 (final Emission Limits) of the Consent

8
9

Decree.

9
10

I. All other provisions of the Consent Decree shall remain in effect.

10
11

J. Each of the undersigned representatives of CalPortland and the Assistant

12
11

Attorney General for the Environment and Natural Resources Division of the

13
12

Department of Justice certifies that he or she is fully authorized to enter into the

14
13

terms and conditions of this Modification to the Consent Decree and to execute and

15

legally bind the Party he or she represents to this document.

14

16

15

17

16

18

17

19

18
20

K. This Modification may be signed in counterparts, and its validity shall not be
challenged on that basis.
L. This Modification shall be lodged with this Court for a period of not less
than 30 days for public notice and comment in accordance with 28 C.F.R. § 50.7.

19

The United States reserves the right to withdraw or withhold its consent if the

20

comments regarding the Modification disclose facts or considerations indicating

21

23

that the Modification is inappropriate, improper, or inadequate. CalPortland

22
24

consents to entry of this Modification without further notice and agrees not to

23
25

withdraw from or oppose entry of this Modification by this Court or to challenge

24
26

any provision of the Modification, unless the United States has notified

25
27

CalPortland that it no longer supports entry of the Modification.

21
22

28
26

M. This Modification to the Consent Decree constitutes the final, complete, and

27

exclusive agreement and understanding among the Parties with respect to the

28

Modification of the Consent Decree, and this Modification to the Consent Decree
6

1

1

2

2

3

3
4

supersedes all prior agreements and understandings, whether oral or written
concerning the Modification embodied herein. Other than Deliverables that are to
be subsequently submitted pursuant to this Modification to the Consent Decree, no

4

other document and no other representation, inducement, agreement,

5

understanding, or promise constitutes any part of this Modification to the Consent

6

7

Decree or the settlement it represents, nor shall they be used in construing the

7
8

terms of this Modification to the Settlement Agreement.

5
6

8
9
9
10
10
11
12
11

IT IS SO ORDERED.
Dated: September 28, 2015
SENIOR DISTRICT JUDGE

13
12
14
13
15

14

16

15

17

16

18

17

19

18
20

19

21

20

22

21

23

22
24
23
25
24
26
25
27
28
26

27
28
7