United States of America et al v. Gateway Energy & Coke Company, LLC et al

Filing 55

ORDER -- Amended Second Amendment to Consent Decree. The Court VACATES 54 Order - Second Amendment to Consent Decree as that document did not contain the attorneys' signatures. Signed by Judge David R. Herndon on 7/9/2018. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISION
)
UNITED STATES OF AMERICA, and )
)
The STATE OF ILLINOIS, and
)
The STATE OF OHIO,
)
)
Plaintiffs,
)
)
v.
)
)
GATEWAY ENERGY & COKE
)
COMPANY, LLC,
)
)
and
)
HAVERHILL COKE COMPANY, LLC, )
)
)
and
)
SUNCOKE ENERGY, INC.,
)
)
Defendants.
)
)

Civil Action No. 13-616-DRH-SCW

SECOND AMENDMENT TO CONSENT DECREE
WHEREAS, on June 26, 2013, the United States, on behalf of the U.S.
Environmental Protection Agency; the State of Illinois (“Illinois”), on behalf of the
Illinois Environmental Protection Agency; and the State of Ohio (“Ohio”), on behalf
of the Ohio Environmental Protection Agency (collectively, “Plaintiffs”), filed a
complaint and contemporaneously lodged a proposed Consent Decree in this
action between the United States, Ohio, Illinois, and Defendants Gateway Energy
& Coke Company, LLC, Haverhill Coke Company, LLC, and SunCoke Energy, Inc.
(collectively, “Defendants”) regarding alleged Clean Air Act violations at two
Midwestern heat recovery coking facilities, one in Franklin Furnace, Ohio

(“Haverhill Facility”) and one in Granite City, Illinois (“Gateway Facility” or
“GECC”);
WHEREAS, subsequent to lodging of the proposed Consent Decree, the
United States sought and received public comments regarding the Decree;
WHEREAS, the Plaintiffs carefully considered the public comments received
and moved the Court to enter the proposed Consent Decree;
WHEREAS, on November 10, 2014 (the “Effective Date”), the Court entered
the proposed Consent Decree;
WHEREAS, Section XVI (Modification) of the Consent Decree provides that
the terms of the Consent Decree may be modified by a subsequent written
agreement between the Plaintiffs and Defendants, and where a modification
constitutes a material change, it must be approved by the Court;
WHEREAS, the Parties agreed to, and filed with the Court on June 5, 2015,
a non-material First Amendment to Consent Decree to modify the timing for
completion of the Flue Gas Flow Rate Study at Phase 1 of the Haverhill Facility
(“HNCC No. 1”), and to modify the timing and work plan for completion of the
Flue Gas Flow Rate Study at Phase 2 of the Haverhill Facility (“HNCC No. 2”);
WHEREAS, the Parties to this Second Amendment to Consent Decree have
agreed to certain material modifications to the Consent Decree, as set forth
herein;
WHEREAS, the Consent Decree requires Defendants, inter alia, to install
and operate redundant heat recovery steam generators (“HRSGs”) to capture,

cool, and route to pollution control equipment flue gases and associated
emissions from each Affected Coke Oven Battery at HNCC No. 1, HNCC No. 2, and
the Gateway Facility during HRSG outages (“Redundant HRSG Project”), and to
comply with more stringent interim and final bypass venting emissions limits for
particulate matter (“PM”) and sulfur dioxide (“SO2”);
WHEREAS, Paragraph 15 of the Consent Decree provides Defendants with
720 hours, per Bypass Vent Stack, to complete work related to the installation of
the Redundant HRSGs from the time this work is started until the times specified
in Paragraph 17 (“Redundant HRSG Tie-in”);
WHEREAS, the number of hours for Redundant HRSG Tie-in contemplated
in the Consent Decree did not include time for replating the sprayer dryer
absorbers (“SDAs”) at HNCC No. 1, HNCC No. 2, or GECC to upgrade the SDAs’
metallurgy to make it more corrosion-resistant and assist in effective operation of
the SDAs (“SDA Replating Project”);
WHEREAS,

Defendants

have

represented

that

operations

following

installation of the Redundant HRSGs have exacerbated corrosion-related issues at
the SDAs;
WHEREAS, the SDAs are part of the flue gas desulfurization units (“FGDs”)
at HNCC No. 1, HNCC No. 2, and GECC, which, together with baghouses at each
respective facility, remove SO2, PM, lead (“Pb”), and HCl, among other pollutants,
from the flue gas produced as a result of the coking process prior to discharge to
the atmosphere through the Main Stack;

WHEREAS, Defendants have been operating the FGDs to over-control SO2,
PM, Pb, and, as to the Haverhill Facility, HCl emissions from the Main Stacks
since the Effective Date of the Consent Decree by, among other things, injecting
excess lime slurry into the SDAs at HNCC No. 1, HNCC No. 2, and GECC;
WHEREAS, Defendants have completed early commissioning and operation
of the Redundant HRSG Project at HNCC No. 1 and HNCC No. 2 by completing
the Redundant HRSG Project ahead of the deadline specified in the Consent
Decree (“early gas sharing”), which has reduced emissions of SO2 and PM beyond
what is required by the Consent Decree at HNCC No. 1 and HNCC No. 2;
WHEREAS, by this Second Amendment to Consent Decree, Defendants
have agreed to lower Bypass Venting emissions limits relating to SO2 as set forth
in amended Paragraph 17, and seek to incorporate such lower limits into
federally enforceable construction permit(s) and issued Title V operating permits
for the Gateway and Haverhill Facilities;
WHEREAS, Defendants represent that the SDA Replating Project is
necessary to maintain and improve the mechanical integrity and reliability of the
FGD systems, which in turn are required to ensure reliable and consistent
operation of the Redundant HRSGs and the Existing HRSGs simultaneously,
within the meaning of Paragraph 8(kk) of the Consent Decree, while HNCC No. 1,
HNCC No. 2, and GECC are operating in gas sharing mode;
WHEREAS, to complete the SDA Replating Project, additional hours for
Redundant HRSG Tie-In are necessary;

WHEREAS, Defendants will continue to over-control SO2, PM, Pb, and, as
to the Haverhill Facility, HCl to mitigate the excess emissions at GECC, HNCC No.
1, and HNCC No. 2, that occur as a result of the SDA Replating Project;
WHEREAS, as specified herein, this Second Amendment to Consent Decree
increases the number of Redundant HRSG Tie-In hours for completing the SDA
Replating Project, provides for the mitigation of PM, SO2, Pb, and, as to the
Haverhill Facility and Gateway Facility, respectively, HCl and sulfuric acid
emissions that will occur during the SDA Replating Project, and proposes certain
other revisions to streamline reporting obligations under the Consent Decree; and
WHEREAS, the Parties recognize, and the Court by entering this Second
Amendment to Consent Decree finds, that this Second Amendment has been
negotiated at arms-length and in good faith and that this Second Amendment is
fair, reasonable, and in the public interest.
NOW, THEREFORE, upon the consent and agreement of the Parties in
accordance with Paragraph 127 of the Consent Decree, the Consent Decree is
hereby modified as follows:

AMENDED CONSENT DECREE PROVISIONS
The Consent Decree shall remain in full force and effect in
accordance with its terms, except that Paragraphs 8(kk), 15, 17, 20(j), 34, 48, 49,
and 128 and Section IV.J are amended and new Paragraph 44.A and Section V.A

(Mitigation) are inserted, as set forth below, and shall become effective if entered
by this Court.
Paragraph 8(kk) is amended to read as follows:
“Redundant HRSG Tie-In” includes the period (a) when a hot duct at an
Existing HRSG is cooled for purposes of installing a Redundant HRSG to when a
Redundant

HRSG

and

the

Existing

HRSGs

can

consistently

operate

simultaneously, and (b) whether before or after Paragraph 17 takes effect, when
Scheduled FGD Maintenance is performed to complete the SDA Replating Project.
Paragraph 15 is amended in part to read as follows:
For purposes of Redundant HRSG Tie-In pursuant to this Consent Decree
only, Defendants shall have seven hundred and twenty (720) hours to complete
such work, per Bypass Vent Stack, including all Bypass Venting through the Main
Stack, plus additional time to complete the SDA Replating Project.

For any

period in which Defendants utilize Redundant HRSG Tie-In time, Defendants
shall comply with the limits specified in the table below . . . .
Paragraph 17 is amended to read as follows:
Beginning on the earlier of (a) the date Defendants notify Plaintiffs that the
redundant HRSGs at HNCC No. 2, HNCC No. 1, and the GECC Battery,
respectively, are fully operational or (b) twenty-seven (27) months after the
Effective Date at HNCC No. 2 and fifty-one (51) months after the Effective Date at
HNCC No. 1 and the GECC Battery, and not including the Redundant HRSGs TieIn time referenced in Paragraph 15, Defendants shall comply with the Bypass

Venting emission limits1 specified in the table below at each Affected Coke Oven
Battery:
Poll
u
tant

SO2
PM
Pb

Each Bypass Vent
Stack
(pounds/hour)
HNC HNCC GEC
C No. No. 2
C
1
323c
323c
323c
420d
420d
--a
a
34.3
34.3
34.3a
---

---

0.186
a

Main Stack Bypass
Total Bypass Venting
Venting
(tons/yearb)
(pounds/hour)
HNCC
HNCC GECC HNCC HNCC GECC
No. 1
No. 2
No. 1 No. 2
1615c
2100d
171.5a

1615c
2100d
171.5

1938c
--205.8

260.4

260.4

312.6

28.8

28.8

34.6

---

---

1.116

---

---

0.188

a

a

a

Table Notes:
a.
Compliance shall be determined in accordance with Section IV.F
(Quantification of Emissions During Bypass Venting). The emissions limits
relating to PM include both filterable and condensable emissions.
b.
Rolling 24-month total.
c.
For any Bypass Venting Incident lasting 48 consecutive hours or longer,
compliance shall be determined as a rolling 48-hour average, for each such
Bypass Venting Incident. For any Bypass Venting Incident lasting less than
48 consecutive hours, this limit shall not apply.
d.
Based on a 3-hour block average.
Paragraph 20(j) is amended to read as follows:
To the extent that completion of the implementation of corrective action(s),
if any, is not finalized at the time of the submission of the report required under
this Paragraph, the status of the corrective action(s) will be reported in
subsequent semi-annual reports until the corrective action(s) has been completed.
The last sentence of Paragraph 34 is amended as follows:

Defendants shall use best efforts to maintain and operate a CEMS at each
Affected Coke Oven Battery in accordance with Paragraph 35 below, until
emissions mitigation has been completed at the Haverhill Facility and Gateway
Facility, respectively, in accordance with Section V.A (Mitigation).
A new Paragraph 44.A is added as follows:
Within ninety (90) Days of the date the Second Amendment is entered by
the Court, Defendants shall seek to incorporate the amended emissions
limitations established in Paragraph 17 into its federally enforceable construction
permit(s) and issued Title V operating permits for the Haverhill and Gateway
Facilities in accordance with Paragraphs 42 through 44.
Paragraph 48 of Section IV.J (Reporting Requirements) is amended
in part to add the following subparagraph (m):
m.

Excess emissions reports (“EERs”) for each SO2 CEMS required

pursuant to Paragraph 34 of the Consent Decree. The EER shall (i) document the
date, commencement and completion times, duration and magnitude of each
exceedance recorded by the CEMS, the reason (if known) and the corrective
actions taken (if any) for each exceedance; (ii) document the date, time, and
duration of each malfunction of the CEMS and/or emission unit and the date,
time, and duration of any downtime of the CEMS while the emission unit was in
operation along with the reason (if known) and the corrective actions taken (if
any); and (iii) report emissions in units of the applicable standard(s). For the

CEMS at the Haverhill Facility, the EERs shall be compiled on a quarterly basis,
but submitted on a semi-annual basis in the semi-annual report.
Section IV.J (Reporting Requirements) is also amended to include the
following additional Paragraph 48.A:
Paragraph 48.A. Defendants shall include in the first semi-annual progress
report due on the first January 31 or July 31 that occurs more than thirty (30)
Days after completion of each SDA Replating Project at HNCC No. 1, HNCC No. 2,
and GECC, (a) the number of Bypass Venting hours resulting from the SDA
Replating Project beyond 720 hours per Bypass Vent Stack, (b) the quantity of
excess PM, SO2, Pb, and, as to the Haverhill Facility and Gateway Facility,
respectively, HCl and sulfuric acid emissions resulting from the SDA Replating
Project, and (c) the amount of emissions mitigation achieved (1) from the Effective
Date of the Consent Decree through the first semi-annual report submitted after
completion of the SDA Replating Project as to emissions reductions resulting from
early gas sharing, and (2) from July 1, 2017 through each semi-annual report
submitted after completion of the SDA Replating Project as to other qualifying
emissions reductions under Section V.A (Mitigation).

Defendants shall also

include in each semi-annual progress report submitted after completion of the
SDA Replating Project and until the emissions mitigation required in Section V.A
is complete, a calculation of the PM, SO2, Pb, and for the Haverhill Facility and
Gateway Facility, respectively, HCl and sulfuric acid emissions reductions
achieved below the applicable Consent Decree limits (for Bypass Vents) or Permit

limits (for the Main Stack) during that period, along with the additional
information required by Paragraph 48 of the Consent Decree.
Paragraph 49 is amended in part to read as follows:
If Defendants have reason to believe that they have violated or may violate
any requirement of this Consent Decree for which notice is not provided in
Paragraph 48a.-m. above, for which a RCFA is not required pursuant to Section
IV.D (Root Cause Failure Analysis for Bypass Venting Incidents), or for which
notice is not provided in the semi-annual or annual compliance certifications or
quarterly or semi-annual deviation reports that are submitted to the State of
Illinois or the State of Ohio pursuant to the CAA and attached to the semi-annual
progress reports submitted pursuant to Paragraph 48 and Section XIII (Notices),
Defendants shall notify the United States, the State of Illinois, and the State of
Ohio of such violation or potential violation of this Consent Decree and its
duration or anticipated likely duration, in writing, within forty-five (45) Days of
the Day Defendants first become aware of the violation or likely violation, with an
explanation of the violation’s likely cause and of the remedial steps taken, or to be
taken, to prevent or minimize such violation. . . .
The Consent Decree is revised to include the following additional
section after Section V (Civil Penalty) and before Section VI (Federal-Only
Supplemental Environmental Project) under the Consent Decree:
Section V.A. MITIGATION

65A.

Defendants shall mitigate the excess emissions resulting from the

SDA Replating Project as follows:

Defendants shall reduce emissions by 1.15

times the amount of emissions calculated pursuant to Paragraph 65B.
Defendants shall calculate emissions from the SDA Replating Project in
accordance with this Section V.A (Mitigation). In calculating emissions mitigation,
Defendants may include emissions reductions resulting from early gas sharing at
HNCC No. 1 and HNCC No. 2. Defendants shall calculate progress towards such
mitigation collectively for HNCC No. 1 and HNCC No. 2 and separately for GECC
by (1) taking 1.15 times the result of the formula in Paragraph 65B, and (2)
collectively for HNCC No. 1 and HNCC No. 2 and separately for GECC,
subtracting the sum of results of the formulas in Paragraphs 65C and 65D. For
each additional ton of PM2.5 reduced beyond the amount already incorporated in
mitigating the total excess PM emissions as calculated in Paragraph 65B,
Defendants may receive one ton of SO2 or sulfuric acid mitigation credit as
calculated in Paragraph 65C.
65B.

Defendants shall calculate the total excess SO2, PM, Pb, and, as to

the Gateway Facility and Haverhill Facility, respectively, sulfuric acid and HCl
emissions that will occur as a result of the SDA Replating Project, that have been
or will be mitigated, using the following formula:

The Variables used in the Equation in this Paragraph shall have the
following meanings:
= total excess emissions of PM
= total excess emissions of SO2
= total excess emissions of Pb
= total excess emissions of Sulfuric Acid (Gateway Facility only)
= total excess emissions of HCl (Haverhill Facility only)
= mass flow rate of PM from most recent, representative stack
test conducted during Bypass Venting
= mass flow rate of PM from most recent, representative stack test
conducted at the Main Stack
= mass flow rate of SO2 defined as the Avg CEMs Concentration
over period of Bypass Venting multiplied by Flue Gas Flow Rate from most
representative Flue Gas Flow Rate study

CEMs

= Avg SO2 mass flow rate in lbs/hr as measured by the Main Stack

= mass flow rate of Pb from most recent, representative stack test
conducted during Bypass Venting
= mass flow rate of Pb from most recent, representative stack test
conducted at the Main Stack

= mass flow rate of Sulfuric Acid from most recent,
representative stack test conducted during Bypass Venting
= mass flow rate of Sulfuric Acid from most recent,
representative stack test conducted at the Main Stack
= mass flow rate of HCl from most recent, representative stack
test conducted during Bypass Venting
= mass flow rate of HCl from most recent, representative stack test
conducted at the Main Stack
= duration of Bypass Venting on Bypass Vent Stack i
= total duration of Bypass Venting beyond the seven hundred twenty
(720) hours provided in Paragraph 15, including when emissions are
routed to any Bypass Venting Stack
= Bypass Vent Stacks open during Bypass Venting, where i equals
each individual open Bypass Vent Stack
= Bypass Vent Stack i beyond the seven hundred twenty (720) hours
provided in Paragraph 15
= Fraction of PM that is PM2.5 as measured by the most recent,
representative stack test conducted during Bypass Venting
65C.

Defendants shall calculate the total emissions mitigated by over-

controlling at the Main Stack starting from July 1, 2017, on a semi-annual basis,
using the following formula:

The Variables used in the Equation in this Paragraph shall have the
following meanings:
= Total tons PM mitigated on a semi-annual basis
= Total tons SO2 or Sulfuric Acid mitigated on a semi-annual basis
= Total tons SO2 or Sulfuric Acid mitigated by mitigation of PM2.5 on
a semi-annual basis. This shall apply only after all excess PM has been
mitigated for the Gateway or Haverhill Facility, as applicable
= Total tons Pb mitigated on a semi-annual basis
= Total tons HCl mitigated on a semi-annual basis
= Main Stack PM emission limit (tons), based on a six
(6) month semi-annual period
= Main Stack SO2 emission limit (tons), based on a six
(6) month semi-annual period
= Main Stack HCl emission limit (tons), based on a six
(6) month semi-annual period
= Main Stack Pb emission limit (tons), based on a six (6)
month semi-annual period
= Fraction of PM that is PM2.5 as measured by the most recent,
representative stack test conducted at the Main Stack
= mass flow rate in lbs/hr of PM from most recent, representative
stack test conducted at the Main Stack

CEMs

= Avg SO2 mass flow rate in lbs/hr as measured by the Main Stack

= mass flow rate in lbs/hr of Pb from most recent, representative
stack test conducted at the Main Stack

= mass flow rate in lbs/hr of HCl from most recent, representative
stack test conducted at the Main Stack
= Semi-annual operating hours of FGD
65D.

Defendants shall calculate the total Bypass Venting emissions

mitigated as a result of early gas sharing operation as follows:
i.

Defendants shall calculate the total Bypass Venting emissions
mitigated as a result of early gas sharing operation at HNCC as a sum
of HNCC No. 1 and HNCC No. 2, using the following formulas:

The Variables used in the Equations in this Paragraph shall have the
following meanings:
= 14.9 tons of PM
= 224.1 tons of SO2
= Total PM emissions below the Consent Decree Bypass Venting
emission limits due to early gas sharing at HNCC No. 1
= Total SO2 emissions below the Consent Decree Bypass Venting
emission limits due to early gas sharing at HNCC No. 1
= Total PM emissions mitigation at HNCC No. 1 and HNCC No. 2
due to early gas sharing operations

= Total SO2 emissions mitigation at HNCC No. 1 and HNCC No. 2
due to early gas sharing operations
= duration of HNCC No. 1 Bypass Venting on Bypass Vent Stack i
over the 27 month period from November 1, 2016 through January 31,
2019
= Bypass Vent Stacks open during Bypass Venting at HNCC No. 1
where i equals each individual open Bypass Vent Stack
= The total allowed PM Bypass Venting emissions of 37.1 tons
under Consent Decree over the 27 month period from November 1, 2016
through January 31, 2019
= The total allowed SO2 Bypass Venting emissions of 349.0
tons under Consent Decree over the 27 month period from November 1,
2016 through January 31, 2019
= mass flow rate of SO2 as determined by the Avg CEMs Concentration
over period of Bypass Venting multiplied by Flue Gas Flow Rate from most
representative Flue Gas Flow Rate Study
= mass flow rate of PM from most recent, representative stack test
conducted at a Bypass Vent Stack
65E.

The quantity of pollutants emitted shall be rounded to one decimal

point, as specified in Paragraph 27 of the Consent Decree.
65F.

Any disputes under the provisions of this Section shall be resolved

in accordance with Section IX (Dispute Resolution) of this Consent Decree.
Paragraph 128 is amended in part to read as follows:
This Consent Decree shall be subject to termination upon motion by the
United States or Defendants under the conditions identified in this Section XVII
(Termination). Defendants may seek termination of this Consent Decree for any
one of the Facilities upon either (1) completion and satisfaction at the Facility of

all of the following requirements of this Paragraph, or (2) any time after the
permanent shutdown of, and relinquishment of all operating permits for, such
Facility, provided that Defendants have complied with the requirements of this
subparagraph (f) below of this Paragraph.
...
f.

Completion of the mitigation of the excess emissions that occur as a

result of the SDA Replating Project at HNCC No. 1, HNCC No. 2, and GECC.
12.

This Second Amendment shall be lodged with the Court for a period

of not less than thirty (30) Days for public notice and comment in accordance
with 28 C.F.R. § 50.7.

The United States reserves the right to withdraw or

withhold its consent if the comments regarding the Second Amendment disclose
facts or considerations indicating that the Second Amendment is inappropriate,
improper, or inadequate. Defendants consent to entry of this Second Amendment
without further notice.

Defendants agree not to oppose entry of this Second

Amendment by the Court or challenge any provision of the Second Amendment,
unless the United States has notified Defendants in writing that it no longer
supports entry of the Second Amendment.

Judge Herndon
2018.07.09 18:02:09 -05'00'
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF ILLINOIS

FOR THE UNITED STATES:
THOMAS A. MARIANI, JR.
Section Chief
Environment &Natural Resources Division
United States Department of Justice

CATHERINE BANERJEE R JKO
Senior Counsel
Environmental Enforcement Section
Environment &Natural Resources Division
United States Department of Justice
P.O. Box 7611, Ben Franklin Station
Washington, D.C. 20044-7611
Phone: [phone]
Fax: [phone]
Email: Cathv.Rojko(a~usdo'. ov

DONALD S. BOYCE
United States Attorney
NATHAN D. STUMP
Assistant United States Attorney
United States Attorney's,Office
Nine Executive Drive
Fairview Heights, IL 62208-1344
Phone: [phone]
Fax: [phone]
Email: Nathan.Stum~a,usdo~.~ov

FOR GATEWAY ENERGY &COKE
COMPANY,LLC;HAVERHILL COKE
COMPANY,LLC,and SUNCOKE ENERGY,
INC.. ~
,-~

ROBERT BRAGER
Beveridge &Diamond PC
201 N. Charles St. Suite 2210
Baltimore, Md.21201
Phone:[phone]
Fax:[phone]
Email: RBrager cc,bdlaw.com