USA v. Lafarge North America , Inc. et al

Filing 50

AMENDMENT TO CONSENT DECREE 45 . Signed by Judge J. Phil Gilbert on 4/28/11. (djs, )

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

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UNITED STATES OF AMERICA,
Plaintiff,
and the STATE of ALABAMA, the STATE
oflLLlNOIS, the STATE of IOWA,
the STATE of KANSAS , the STATE of
MICHIGAN, the STATE of MISSOURI,
the STATE of NEW YORK, the STATE
of OHIO, the COMMONWEALTH
of PENNSYLVANIA DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
the STATE of SOUTH CAROLINA
DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONTROL,
the WASHINGTON STATE
DEPARTMENT OF ECOLOGY,
the OKLAHOMA DEPARTMENT OF
ENVIRONMENTAL QUALITY, and
the PUGET SOUND CLEAN AIR AGENCY,
Plaintiff-Intervenors,

v.
LAFARGE NORTII AMERICA, INC.,
LAFARGE MIDWEST,INC., and
LAFARGE BUILDING MATERIALS, INC.,
Defendants.

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Civil A ction No. 3: IO-cv-44·JPG

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AMENDMENT TO CONSENT DECREE

WHEREAS, on January 21,2010, Plaintiff, the United States of America (" United
States"), on behalfofthe United States Environmental Protection Agency ("U.S. EPA") filed a
Complaint in this action against Defendants, Lafarge North America Inc., ("La farge") and its
wholly owned subsidiaries Lafarge Midwest, Inc. ("Lafarge Midwest") and Lafarge Building
Materials Inc. ("Lafarge Materials") (collectively "Lafarge Companies") (Doc. 3);
WHEREAS, the State of Alabama, the State of Illinois, the Stale of Iowa, the State of
Kansas, the State of Michigan, the State of Missouri, the Slate of New York, the State orOhia,
the Commonwealth of Pennsylvania Department of Environmental Protection, the South
Carolina Department of Health and Environmental Control, the Washington State Department of
Ecology, the Oklahoma Department of Environmental Quality, and the Puget Sound Clean Air
Agency (collectively, "State Plaintiffs") filed a Complaint in Intervention on March 3, 2010
(Doc. 39);
WHEREAS, the claims in the Complaint and in the Complaint in Intervention were
resolved by a Consent Decree entered by the Court on March 18, 20 I 0 (Doc. 45);
WHEREAS, Paragraph 158 ofthc Consent Decree provides that it may be modified by a
subsequent wrinen agreement signed by the Affected State, the United States, and the Lafarge
Companies unless the modification constitutes a material change, in which case the modification
is eflective only upon approval by the Court;
WHEREAS, this Amendment to Consent Decree ("Amendment") relates to the Alpena
Cement Plant located in Alpena, Michigan ("Alpena Facility") and the Ravena Cement Plant
located in Ravena, New York ("Ravena Facility") which, for purposes of the Consent Decree,
arc within the jurisdictions of the State of Michigan and State of New York ("the States"),

respectively, making those States "Aftected States" within the meaning of Paragraph 7.e of the
Consent Decree;
\\lHEREAS, the United States. the Affected States and the Lafarge Companies ("the
Parties") have agreed to amend the Consent Decree to provide the Lafarge Companies the option
of installing either one Wet FGD for each of the two Kiln Group 6 ("KG6") Kiln's (Kilns 22 and
23) as the Consent Decree currently provides, or installing one Wet FGD for both KG6 Kiln's
combined by January 1,2014 at the Alpena Facility, thereby advancing the schedule by which
Wet FGD controls arc to be placed on the second kiln in KG6;
WHEREAS, the Parties have further agreed that Lafarge shall develop and submit for
review by EPA and the Atlected States a malfunction abatement plan for each Wet FGD at the
Alpena Facility and the Ravena Facility to minimize Malfunctions of the Wet FODs and to
minimize excess emissions of sulfur dioxide in the event of a Malfunction;
WHEREAS, the modifications set forth in this Amendment to Consent Decree involve
the Alpena Facility, which is identified in Paragraph 7.w(l) of the Consent Decree, and the
Ravena Facility, which is identified in Paragraph 7.w(2) of the Consent Decree; and
WHEREAS, the Assistant Attorney General for the Environm.ent and Natural
Resources Division of the Department of Justice and each undersigned representative of the
Lafarge Companies and the States certifies that he or she is fully authorized to enter into the
terms and conditions of this Amendment and to execute and legally bind the Party he or she
represents to this document.
NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES as follow s:

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1.

The Consent Decree, as modified, shall remain in full force and effect in

accordance with its terms, except that Paragraphs 7.j, 45, 51 and 78 of the Consent Decree and
paragraphs 12 and 22 of the Appendix are amended and restate as follows :

CONSENT DECREE REVISIONS
7. Terms used in this Consent Decree that are defined in the Act or in regulations
promulgated by the U.S. EPA pursuant to the Act shall have the meanings assigned to them in
the Act or such regulations, unless otherwise provided in this Decree. Whenever the terms set
forth below are used in this Consent Decree, the following definitions shall apply.

j. "Continuously Operate" or "Continuous Operation" shall mean that when a
Control Technology is used at a Kiln, except during a Malfunction oflh.
Control Technology, it shall be operated at all times of Kiln Operation,
consistent with the technological limitations, manufacturers' specification,
and good engineering and maintenance practices for such Control Technology
and the Kiln. "Continuous Operation" shall also mean that, at all times of
Kiln Operation and during periods of any Malfunction of any Wet FGD
required under Paragraphs 51 and 56 of this Consent Decree, Lafarge shall
operate each Wet FGD in compliance with a malfunction abatement plan that
is approved by EPA and the Affected State pursuant to Section Xl (Review
and Approval ofSubmiltals) and that contains the following:
(1) A comprehensive preventive maintenance program, including a
description of the items or conditions that will be inspected, the
frequency of these inspections or repairs, and an identification of the

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types and quantities of the replacement parts which will be maintained
in inventory for quick replacement;
(2) An identification ofthe source and the operating variables of the Wet
FGD that will be monitored in order to detect a Malfunction, the
normal operating range ofthese variables, and a description oflhe
monitoring or surveillance procedures and of the method of informing
operating personnel of any Malfunction, including alarm systems,
lights and/or other indicators; and
(3) A description of the corrective procedures that will be taken in the
event of a Malfunction in order to achieve compliance with any
Emission Limit as expeditiously as practicable and procedures to be
implemented to minimize emissions, to the extent practicable during
the period of Malfunction, including but not limited to the operation of
a redundant pump to ensure operation of the scrubber in the event ofa
pump failure.
U.

NO. Continuous Emission Monitoring Systems

45.

At each Kiln identified in Paragraph 7.z of this Decree (except for Joppa Kiln 3).

the Lafarge Companies shall install and make operational within 12 months of the Effec·tive Date
a NO, continuous emissions monitoring system (CEMS) at each stack which collects emissions
from such Kiln (or Kilns, in the case of Alpena Kiln Group 6 (KG6) or Ravena) in accordance
with the requirements of 40 C.F.R. Part 60 .

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51.

Control Technology Retrofit Option.

a. Subject to Section VII (Temporary Cessation of Kiln Operation), the Lafarge
Companies shall have installed and Commenced Continuous Operation ofDAA or
Wet FGD technology in the table specified below on individual Kilns in the order
selected by the Lafarge Companies within Kiln Group ("KG") 5 and on the Kilns
within KG6 at the Alpena Facility by the dates specified below:

Kiln

Control
Technology

Date of
Installation and
Commencement
of Continnous
Operation

I" Kiln
in KG5

DAA

101112011

2nd Kiln
inKG5

DAA

11/112011

See Appendix

Kiln
inKG5

DAA

12/112011

See Appendix

I" Kiln
inKG6

WetFGD

1/112014

See Appendix

2nd Kiln
in KG6

WelFGD

31112014

See Append ix

Option
for KG6
Kilns

A single
Wet FGD
for both
Kilns

1/1/2014

Demonstration Phase
Facility-Wide 12-Month
Rolling Average
Emission Limit
(Ihs, SO, (fon of
clinker)

See Appendix

See Appendix

3'd

30-Day Rolling
Average Emission
Limits

3.68

b. Upon installation of the SO, Control Technology, the Lafarge Companies shall
Continuously Operate the SO,Control Technology during all times of Kiln
Operation, except during periods ofoSO, Control Technology Malfunction.
c. Lafarge shall design the Wet FGD or Wet FGDs to be installed at Alpena Kilns 22
and 23 (KG6) to achieve a removal efficiency for SO, of no less than 90%.

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d. Ifthe Lafarge Companies elect not to Retire and Replace any Alpena Kiln in
accordance with Section VIII (Election to Retire and Replace Kilns), then:
i. Within 12 months after the conclusion of the Optimization Phase as it applies
to Kilns 19,20, and 21 (KGS) identified in Paragraphs 51 and 7.z(1), the
Lafarge Companies shall achieve and maintain compliance with the
Demonstration Phase Facility-Wide 12-Month Rolling Average Emission
Limit for SO, of 3.68 Ibs.!fon of clinker at Kilns 19, 20, and 21 (KG5), or,
alternatively, at those Kilns the Lafarge Companies have elected not to Retire
and Replace;
ii. Within 12 months after the conclusion ofthe Optimization Phase as it applies
to Kilns 22 and 23 (KG6) identified in Paragraphs 51 and 7.z(I), the Lafarge
Companies shall achieve and maintain compliance with the Demonstration
Phase Facility-Wide 12-Month Rolling Average Emission Limit for SO, of
3.68 Ibs.!fon of clinker at Kilns 19, 20,21,22, and 23 (KG5 and KG6), or,
alternatively, at those Kilns the Lafarge Companies have elected not to Retire
and Replace.
e. The Lafarge Companies shall comply with the Appendix (Control Technology
Demonstration Requirements) in setting a 30-Day Rolling Average Emission Limit
for SO, applicable to each Alpena Kiln that the Lafarge Companies have not
otherwise elected to Retire andlor Replace pursuant to Section VIII (Election to
Retire and Replace Kilns). Within 30 Days after the establishment of a 30-Day
Rolling Average Emission Limit for SO, under the Appendix at any Alpena Kiln that
the Lafarge Companies have not otherwise elected to Retire or Replace. the Lafarge

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Companies achieve and maintain compliance with the 30-Day Rolling Average
Emission Limit for SO, at the respective Kiln.

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•

B. SO, Continuous Emission Monitoring Systems
78.

At each Kiln identified in Paragraph 7.z (except for Joppa Kiln 3) Oflhis Decree,

the Lafarge Companies shall install and make operational within 12 months of the Eflective Date
a SO, continuous emissions monitoring system (CEMS) at each stack which collects emissions
ITom such Kiln (or Kilns, in the case of Alpena Kiln Group 6 (KG6) or Ravena) in accordance
with the requ irements of 40 C.F.R. Part 60 .

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•

APPENDIX REVISIONS

"12. Within 30 Days following the optimization period for each Control Technology at each
Affected Kiln (or Affected Kilns, in the case of Alpena Kiln Group 6 (KG6) or Ravena)
subject to the requirements of thi s Appendix, the Lafarge Companies shall provide to U.S.
EPA and the Affected State pursuant to Section XI (Review and Approval of Submittals)
an Optimization Report demonstrating conformance with the optimization protocol for the
Control Technology and establ ishing the operating parameters for the Control Technology
determined under the optimi7..ation protocol. The Lafarge Companies shall also include in
the report a disCussion of any problems encountered with the operation of the Control
Technology and the impact, if any, the Control Technology may have had on changes in
the emissions from the Kiln. The provisions of Section XI (Review and Approval of
Submittals) shall apply to U.S.EPA' s and the Affected State's review of the Optimization
Report, except that U.S. EPA and the Affected State shall review and comment on the
Optimization Report within 45 Days of receipt of the Optimization Report and the Lafarge
Companies shall respond to any comments received within 30 Days of their receipt of U.S.
EPA's and the Affected State's comments. The Lafarge Companies' submittal of and
U.S. EPA's and the Affected State's review of the Optimization Report shall not toll the
Lafarge Companies' obligation to fulfill other requirements Oflhis Appendix .

•

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•

22 . The Final Demonstration Report for an Affected Kiln (or Affected Kilns, in the case of
Alpena Kiln Group 6 (KG6) or Ravena), shall be subject to Section Xl (Review and

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Approval of Submittals) of the Consent Decree and the Dispute Resolutio n provisions of
Section XV of the Consent Decree."

•
2.

•

•

The "Effective Date" of this Amendment to Consent Decree shall be the date

upon which this Amendment is entered by the Court or a motion to enter the Amendment to
Consent Decree is granted, whichever occurs first.

8

Through their undersigned representatives, the Parties agree and consent to this Amendment to
Consent Decree in United States ofAmerica, et al. v. Lafarge North America, Inc., ct al.

FOR PLAfNTIFF UNITED STATES OF AMERICA:

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Date:

Assistant Attorney General
Environment and Natural Resources
Division
United States Department of Justice

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Date:

ANDREW C. HAN
Trial Attorney
Environmental Enforcement Section
Environment and Natural Resources Division
United States Department of Justice
P.O. Box 761 I
Washington, D.C. 20044-7611
[phone] (Tcl.)
[phone] (Fax)
andrew_hanson2@usdoj ,gov

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Through theil' undersigned representatives, the Parties agree and consent to this Amendment to
Consent Decree in United Slales ojAmerica, et al. v. LaJarge Norlh America, Inc., et al.

FOR PLAINTIFF UNITED STATES OF AMERICA:

STEPHEN R. WIGGINTON
United States Attorney

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Date:

. CHRISTOPHER MOORE

~~istant United States Attorney
Nine Executive Drive
Fairview Heights, Illinois 62208-1344
[phone] (Tel.)
[phone] (Fax)
[e-mail]

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Through their undersigned representatives, the Parties agree and consent to this Amendment to
Consent Decree in United States ofAmerica, et al. v. Lafarge North America, Inc., et al.

FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:

Date:

Director, Office of Civil Enforcement
Office ofEnforcem t ~nd Compliance Assurance
United S~ E 1 mental Protection Agency

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Date:
Director, Air nforcement Division
Office of Enforcement and Compliance Assurance
United States Environmental Protection Agency

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TO: 2e26166584

from:

(3123538937)

12/27/10 10:30 AM

Page 2 of 2

Through their undersigned representatives, the Parties agree and consent to this Amendment to
Consent Decree in United States ofAmerica, et al. v. Lafarge North America, Inc., et al.

FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:

s -41--

Date: /2--2- Z- -I D

SUSAN HEDMAN
Regional Administrator
U.S. Environmental
Protection Agency
Region 5

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Date:

ROBERT A. KAPL
Regional Coul1sel
United State Environmental
Protection Agel1cy
Region 5

12

Through their undersigned representatives, the Parties agree and CODsent to this Amendment to
Consent Decree in Uniled Slates of America, et al. v. l.afarge North America, Inc., et al.

FOR THE STATE OF MICHIGAN:

~

Date:

NEIL D. GORDON
Michigan Department of Attorney General
Environment, Natural Resources and Agriculture Division
P.O. Box 30755
Lansing, MT 48909

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Date:

VINSON HELLWIG
Chief, Air Quality Division
Michigan Department of Environmental Quality
P.O. Box 30260
Lansing. MI 48909-7760

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Through their undersigned tcprCSClllatiVC$, thc Parties agree and consent to this AmCndmcntlo
Consent Decree in United SUJtu ofA_rica, et aI. v. Lafarge North America, lJU!., et aI.
FOR THE STATE OF NEW YORK
ERiC T. SCHNEIDERMAN
ATIORNEY GENERAL OF THE STATE OF NEW YORK

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Datc:
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By: ROBERT ROSENTHAL
Assistant An<mley Gcoeral
Environmental ProtectiOll Buteau
The Capitol
Albany, New York 12224

Date:
/A~ling CommissionCl'

York Slate Dqlartment of
Environmental Conservation
625 Broadway
Albany, New York 12233·5500

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Through their undersigned representatives, the Parties agree and consent to this Amendment to
Consent Decree in United States ofAmerica, et aI. v. Lafarge North America, Inc., et aI.

FOR DEFENDANT LAFARGE NORTH AMERICA, INC.:

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Date:

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Sylvain Garnaud
Co-President, Lafarge North America Inc.

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Through their lUldersigned representatives, the Parties agree and consent to this Amendment to
Consent Decree in United Slates ofAmerica, et al. v. Lqfarge North America, Inc., et aI.

FOR DEFENDANT LA FARGE MIDWEST, INC.:

SI -----= j

Date:

Sylvain Garhau'1r
President, Lafarge Midwest Inc.

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Through their undersigned representatives, the Parties agree and consent to this Amendment to
Consent Decree in United Stales ofAmerica, et al. v. Lafarge North America, Inc., et al.

FOR DEFENDANT LAFARGE BUILDING MATERIALS, INC.:

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j

Sylvain Garn2t=-President, Lafarge Building Materials Inc.

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