United States of America v. Nevada Cement Company, Inc.

Filing 11

CONSENT DECREE re ECF No. 2 -1 Proposed Consent Decree. Signed by Judge Miranda M. Du on 10/4/2017. (Copies have been distributed pursuant to the NEF - KR)

1
2
3
4
5
6
7
8

BRUCE S. GELBER
Deputy Assistant Attorney General
Environment &Natural Resources Division
United States Department of Justice
DAVID L. McILWAIN
Environmental Enforcement Section
Environment &Natural Resources Division
United States Department of Justice
601 D Street, N.W.,PHB Building
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

9

15

DANIEL G. BOGDEN
United States Attorney
District of Nevada
GREG ADDINGTON
Assistant United States Attorney
100 West Liberty
Suite 600
Reno, NV 89501
Telephone:[phone]
Facsimile: [phone]

16

Attorneysfor Plaintiff United States ofAmerica

10
11
12
13
14

17
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

18
19
2
0

UNITED STATES OF AMERICA,

21

Plaintiff,

2
2

v.

Civil Action No. 3:17-cv-00302-MMD-WGC
CONSENT DECREE

23

NEVADA CEMENT COMPANY

24
Defendant.
25
2
6
27
28

TABLE OF CONTENTS
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
2
0
21
22
23
24
25
2
6
27
28

SECTION I: JURISDICTION AND VENUE............................................................................... 3
SECTION II: APPLICABILITY ................................................................................................... 4
SECTION III: DEFINITIONS....................................................................................................... 6
SECTION IV: CIVIL PENALTY ............................................................................................... 13
SECTION V: NOX CONTROL TECHNOLOGY,EMISSION LIMITS AND
MONITORING REQUIREMENTS................................................................................. 14
A.
NOX Control Technology and Emission Limits .................................................... 14
B.
NOx and Ammonia Continuous Emission Monitoring Systems........................... 16
SECTION VI: S02 EMISSION LIMITS AND MONITORING REQUIREMENTS................ 17
A.
SOz Emission Limits............................................................................................. 17
B.
SOz Continuous Emission Monitoring Systems ................................................... 17
SECTION VII: OTHER INJUNCTIVE RELIEF........................................................................ 18
SECTION VIII: TEMPORARY CESSATION OF KILN OPERATION................................... 20
SECTION IX: PROHIBITION ON NETTING CREDITS OR OFFSETS FROM
REQUIRED CONTROLS..................................................................................................... 22
SECTION X: PERMITS.............................................................................................................. 23
SECTION XI: REVIEW AND APPROVAL OF SUBMITTALS.............................:................ 26
SECTION XII: REPORTING REQUIREMENTS...................................................................... 27
SECTION XIII: STIPULATED PENALTIES ............................................................................ 31
SECTION XIV: FORCE MAJEURE .......................................................................................... 36
SECTION XV: DISPUTE RESOLUTION ................................................................................. 38
SECTION XVI: INFORMATION COLLECTION AND RETENTION ................................... 44
SECTION XVII: EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS ....................... 46
SECTION XVIII: COSTS ........................................................................................................... 48
SECTION XIX: NOTICES.......................................................................................................... 48
SECTION XX: EFFECTIVE DATE ........................................................................................... 50
SECTION XXI: RETENTION OF JURISDICTION .................................................................. 50
SECTION XXII: MODIFICATION ............................................................................................ 50
SECTION XXIII: TERMINATION ............................................................................................ 51
SECTION XXIV: PUBLIC PARTICIPATION .......................................................................... 52
SECTION XXV: SIGNATORIES/SERVICE/ANSWER........................................................... 52
SECTION XXVI: INTEGRATION ............................................................................................ 53
SECTION XXVII: FINAL JUDGMENT .................................................................................... 53
SECTION XXVIII: APPENDICES............................................................................................. 53
SECTION XXIX: HEADINGS .................................................................................................... 54

1
2

WHEREAS,Plaintiff, the United States of America, on behalf ofthe United States
Environmental Protection Agency (herein "U.S. EPA" or "EPA")has, simultaneously with the

3
lodging of this Consent Decree, filed a Complaint against Defendant Nevada Cement Company
4
5

(
"Defendant" or "Nevada Cement Company"), pursuant to Sections 113(b) and 167 ofthe Clean

6

Air Act("Clean Air Act or Act"), 42 U.S.C. §§ 7413(b) and 7477, for injunctive relief and the

7

assessment of civil penalties for violations of the following statutory and regulatory requi

8

ofthe Act at the Defendant's Portland cement plant located in Fernley, Nevada: the Prevention

9
10

of Significant Deterioration("PSD")provisions ofthe Act, Sections 160-169, 42 U.S.C. §§

11

7470-7492; the New Source Performance Standards("NSPS") provisions ofthe Act, Section

12

1 11,42 U.S.C. § 7411; and the federally-approved and enforceable state implementation plan

13 (
"SIP"), which incorporate and/or implement the above-listed federal PSD requirements;
14

WHEREAS,this Consent Decree sets forth injunctive relief in which Defendant has

15
16

agreed to substantially reduce its emissions of nitrogen oxide and limit its emissions of sulfur

17

dioxide in such a manner that would resolve Defendant's alleged violations of the PSD and

18

NSPS requirements of the Act;

19

WHEREAS,U.S. EPA has provided notice of the violations alleged herein to the

2
0
Defendant and to the State of Nevada where Defendant's Facility is located, pursuant to
21
22

Section 113(a) of the Act,42 U.S.C. § 7413(a), and Defendant stipulates that it has received

23

actual notice of the violations alleged in the Complaint and that it does not contest the adequacy

2
4

ofthe notice provided;

25

WHEREAS,Defendant denies the allegations ofthe Complaint and does not admit that it

2
6
27
28

has any liability to the United States for civil penalties or injunctive relief arising out of the
transactions and occurrences alleged in the Complaint;
2

1
2

WHEREAS,the Parties recognize, and the Court by entering this Consent Decree finds,
that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation

3
4
5

between the Parties and that this Consent Decree is fair, reasonable, and in the public interest.
NOW,THEREFORE, before the taking of any testimony, without the adjudication or

6

admission of any issue of fact or law except as provided in Section I (Jurisdiction and Venue),

7

below, and with the consent of the Parties, IT IS HEREBY ADJUDGED,ORDERED,AND

8

DECREED as follows:

9
SECTION I: JURISDICTION AND VENUE

10
11

1.

This Court has jurisdiction of the subject matter herein and over the Parties

12

consenting hereto pursuant to Sections 113(b), 167, and 304(a) ofthe Act, 42 U.S.C.

13

§§ 7413(b), 7477, and 7604(a), and pursuant to 28 U.S.C. §§ 1331, 1345, 1355 and

14

1367(a). Venue is proper under Sections 113(b) and 304(c) ofthe Act,42 U.S.C. §§

15
16

7413(b)and 7604(c), and under 28 U.S.C. §§ 1391(b) and (c) and 1395(a). For

17

purposes ofthis Consent Decree and the underlying Complaint, Defendant waives all

18

objections and defenses it may have to the Court's jurisdiction over this action, to the

19

Court's jurisdiction over the Defendant, and to venue in this District. For the

2
0
21
22

purposes ofthe allegations in the Complaint in this matter that are being resolved by
the Consent Decree, Defendant waives any defense or objection based on standing.

23

2 For purposes of this Consent Decree, Defendant agrees that the Complaint
.

2
4

states claims upon which relief may be granted pursuant to Sections 113, 165 and 167

25

of the Act, 42 U.S.C. §§7413, 7475 and 7477.

2
6
2
7
~
:~
3

1
2

SECTION II: APPLICABILITY
3 The obligations of this Consent Decree apply to and are binding upon the
.

3
United States and upon the Defendant, and any successors, assigns, or other entities
4
5
6
7
8

or persons otherwise bound by law.
4 At least 30 Days prior to any transfer of ownership or operation of the
.
Facility, Defendant shall provide a copy ofthis Consent Decree to the proposed
transferee and, by the same deadline, shall simultaneously provide written notice of

9
the prospective transfer, together with a copy of the proposed written agreement to
10
11

transfer ownership ofthe Facility, to U.S. EPA and the United States in accordance

12

with Section XIX (Notices) of this Consent Decree. No transfer of ownership or

13

operation ofthe Facility, whether in compliance with the procedures of this P

14

or otherwise, shall relieve Defendant of its obligation to ensure that the terms ofthe

15
Decree are implemented, unless:
16
17

a the transferee agrees, in writing, to undertake the obligations required by
.

18 I

Sections V(NOX Control Technology, Emission Limits, and Monitoring

19

Requirements), VI(S02 Emission Limits and Monitoring Requirements), VII

2
0
(
Other Injunctive Reliefl, VIII(Temporary Cessation of Kiln Operations), IX
21
22
23
2
4
25

(
Prohibition on Netting Credits or Offsets from Required Controls), X
(
Permits), XI(Review and Approval of Submittals), XII (Reporting
Requirements), XIII (Stipulated Penalties), XIV (Force Majeure), XV
(
Dispute Resolution), XVI(Information Collection and Retention) and the

2
6
requirements of Appendices A and B of this Consent Decree applicable to the
27
28

Facility or Kilns and further agrees in writing to be substituted for the
4

1

Defendant as a Party under the Decree with respect to Facility or Kilns and

2

thus become bound by the terms thereof;

3
b. the United States determines that the transferee has the financial and technical
4
5

ability to assume the Consent Decree's obligations applicable to such Facility

6

or Kilns;

7

c. the United States consents, in writing, to relieve Defendant of its Consent

8

Decree obligations applicable to the Facility or Kilns; and

9
10

d. the Court approves the transferee becoming a party to this Consent Decree
with respect to the transferred Facility or Kilns, pursuant to Section XXII

11
12
13
14

(
Modification).
5. Any transfer of ownership or operation ofthe Facility or Kilns, or any
portion thereof, without complying with Paragraph 4, constitutes a violation ofthis

15
16
17

Consent Decree.
6 The Defendant shall provide a copy ofthis Consent Decree to all officers,
.

18

employees, and agents whose duties might reasonably include compliance with any

19

provision of this Consent Decree, as well as to any Contractor retained to perform

2
0
work required under this Consent Decree. Defendant shall condition any such
21
22

contract upon performance of the work in conformity with the terms of this Consent

23

Decree.

2
4
25

7. In any action to enforce this Consent Decree, Defendant shall not raise as
a defense the failure by any of its officers, directors, employees, agents, or

2
6
27

to take any actions necessary to comply with the provisions ofthis Consent Decree.

28
5

1

SECTION III: DEFINITIONS

2

8. Terms used in this Consent Decree that are defined in the Act or in

3
4

regulations promulgated by U.S. EPA pursuant to the Act shall have the

meanings

5

assigned to them in the Act or such regulations, unless otherwise provid

6

Consent Decree. Definitions stated in this Consent Decree are exclusively
for the

7

purpose of interpreting and applying the Consent Decree terms and

8

ed in this

are not intended

to establish any type of determination under circumstances not covere

d by the

9
10

Consent Decree. Whenever the terms set forth below are used in this
Consent

11

Decree, the following definitions shall apply:

12
13

a "30-Day Rolling Average Emission Limit" shall mean, with
.
respect to
maximum allowable rate of emission of a specified air pollutant from

the Kilns, the

such Kiln and

14
15

shall be expressed as pounds (lbs.) of such air pollutant emitted per

Ton of clinker

16

produced. Compliance with the 30-Day Rolling Average Emiss
ion Limit

17

determined in accordance with the definition of 30-Day Rolling

18

Rate. Anew compliance determination ofthe 30-Day Rollin
g Average

19

shall be

Average Emission
Emission

Limit shall be calculated for each new Operating Day in accord

ance with the

2
0
21

provisions of this Consent Decree. In calculating each compl
iance determination of

22

the 30-Day Rolling Average Emission Limit in accordance with

23

f NOX or S02 at the Kilns, the total pounds of such air pollut
or

2
4

Kiln during a specified period (Operating Day or 30-Day Period

25

this Paragraph 8.a,

ant emitted from the
) shall include all

emissions ofthat pollutant from the subject Kiln that occur during

2
6
period;
27
28
C~

the specified

1
2

b. "30-Day Rolling Average Emission Rate" shall mean, with respect to the Kilns, the
rate of emission of a specified air pollutant from such Kiln and shall be expressed as

3
pounds (lbs.) of such air pollutant emitted per Ton of clinker produced. Compliance
4
5

with the 30-Day Rolling Average Emission Limit shall be determined by calculation

6

of a 30-Day Rolling Average Emission Rate in accordance with the following

7

procedure: first, sum the total pounds ofthe air pollutant in question emitted from the

8

Kiln during that Operating Day and the previous twenty-nine(29) Operating Days as

9
10

measured pursuant to Section V.B.(NOX and Ammonia Continuous Emission

11

Monitoring Systems), or Section VI.B.(S02 Continuous Emission Monitoring

12

Systems), as applicable; second, sum the total Tons of clinker produced by the Kiln

13

during the same Operating Day and previous 29 Operating Days; and third, divide the

14

total number of pounds ofthe air pollutant emitted from the Kiln during the thirty

15
16

30)
( Operating Days by the total Tons of clinker produced by such Kiln during the

17

same 30 Operating Days. Anew compliance determination ofthe 30-Day Rolling

18

Average Emission Rate shall be calculated for each new Operating Day in

19

with the provisions of this Consent Decree. In calculating each 30-Day Rolling

2
0
Average Emission Rate in accordance with this Paragraph 8.b, for NOX or S02 at the
21
22

Kilns, the total pounds of such air pollutant emitted from the Kiln during a specified

23

period (Operating Day or 30-Day Period) shall include all emissions of that pollutant

2
4

f
rom the subject Kiln that occur during the specified period;

25

c. "Ammonia CEMS" shall mean,for obligations involving ammonia under this Consent

2
6
Decree, the total equipment and software required to sample, analyze, and to provide a
27
28
7

1

record of ammonia concentration and the raw data necessary to support the reported

2

emissions;

3

d. "Ammonia Slip" shall mean the amount of unreacted ammonia contained in emissions

4
f
rom Defendant's Kilns. Ammonia Slip shall be calculated by subtracting Baseline
5
6
7

Ammonia from Stack Ammonia;
e. "Baseline NOX Emissions" shall mean the average (arithmetic mean)of all daily

8

emissions of NOX from each Kiln during the Baseline Collection Period consistent wi

9

Appendix A and shall be based upon an analysis of CEMS data and clinker

10
production data from each Kiln;
11
12

f "Baseline Ammonia" shall mean the average (arithmetic mean)of all daily average
.

13

ammonia concentrations from each Kiln during the Baseline Collection Period consistent

14

with Appendix A and shall be based upon an analysis of CEMS data from each Kiln.

15

Baseline Ammonia shall reflect Ammonia measured by the Ammonia CEMS only during

16

periods oftime when the SNCR is not injecting any reagent into the Kilns;

17
18

g. "Business Day" means any Day, except for Saturday, Sunday, and federal holidays.

19

In computing any period oftime used as a deadline for submission under this

2
0

Decree, where the last Day would fall on a Saturday, Sunday, or federal holiday, the

21

period shall run until the close of business ofthe next Business Day;

22

h. "GEMS" or "Continuous Emission Monitoring System" shall mean,for obligations

23
2
4

involving NOX and S02 under this Consent Decree, the total equipment and software

25

required to sample and condition (if applicable), to analyze, and to provide a record

2
6

NOX and SOz emission rates, and the raw data necessary to support the reported

27
28 I
8

1

emission rates, and that have been installed, calibrated and certified in accordance

2

with 40 C.F.R. § 60.13 and 40 C.F.R. Part 60 Appendix B and Appendix F;

3
i. "Commence" or "Commencement" of operation of a Control Technology shall mean
4
5
6
7
8

to begin the introduction ofthe reagent employed by the Control Technology, as
applicable to that technology, or where the technology is otherwise activated;
j. "Complaint" shall mean the complaint filed by the United States in this action;
k. "Consent Decree" or "Decree" shall mean this Consent Decree and each Appendix

9
attached hereto (listed in Section XXVIII(Appendices)), but in the event of any
10
11

conflict between the text ofthis Consent Decree and any Appendix,the text ofthis

12

Consent Decree shall control;

13
14

1. "Continuously Operate" or "Continuous Operation" shall mean that when a Control
Technology required by this Consent Decree is used at a Kiln, it shall be operated at

15
all times of Kiln Operation, consistent with the technological limitations,
16
17

manufacturers' specifications, and good engineering and maintenance practices for

18

such Control Technology and the Kiln. A SNCR that is injecting no reagent is not

19

Continuously Operating; however, the requirement to continuously operate SNCR

2
0
does not require that the SNCR be operated under conditions where the Kiln has not
21
2
2

reached or is no longer maintaining the minimum temperature for reagent injection.

23

This Paragraph is not intended to require any minimum level of reagent injection

2
4

the 30-Day Rolling Average Emission Limit has been established in accordance with

25

Paragraph 8.a;

2
6
m. "Contractor" shall mean any person or entity hired by Defendant to perform services
2
7
28

on its behalf necessary to comply with the provisions ofthis Consent Decree;
9

1
2

n. "Control Technology" or "NOx Control Technology" shall mean Selective NonCatalytic Reduction or Low-NOX Burner technology;

3
o. "Date of Lodging ofthe Consent Decree" or "Date of Lodging" shall mean the date
4
5
6
7
8

the Consent Decree is filed for lodging with the Clerk of the Court for the United
States District Court for the District of Nevada;
p. "Day" shall mean a calendar day unless expressly stated to be a Business Day;
q. "Defendant" or "Nevada Cement" shall mean Nevada Cement Company;

9
r. "Effective Date" shall have the meaning given in Paragraph 98;
10
11
12
13
14

s. "Facility" shall mean the Defendant's Portland cement manufacturing plant located
just north of Interstate Highway 80 near Fernley, Nevada;
t "Kiln" as used in this Consent Decree shall mean each device located at the Facility,
.
including any associated preheater devices, that produces clinker by heating

15
16

limestone and other materials for subsequent production of Portland cement. The

17

Kilns at the Facility are designated Kiln #1, which is a long dry rotary kiln, and Kiln

18

#2, which is a long dry rotary kiln with asingle-stage preheater;

19

u. "Kiln Operation" shall mean any period when any raw materials are fed into the Kiln

2
0
or any combustion is occurring in the Kiln;
21
22

v. "Low-NOX Burner" or "LNB" shall mean commercially available combustion

23

modification NOX controls that minimize NOX formation by introducing fuel and its

2
4

associated combustion air into a kiln such that initial combustion occurs in a fuel-rich

25

( oxygen deficient) environment and introduces additional air to achieve a final
i.e.,

2
6
fuel-lean (i.e., oxygen rich) environment to complete the combustion process;
27
28
10

1
2

w. "Malfunction" shall mean any sudden, infrequent, and not reasonably preventable
f
ailure of air pollution control equipment, process equipment, or a process to operate

3
in a normal or usual manner. Failures that are caused in part by poor maintenance or
4
5
G
1
7
8

careless operation are not malfunctions;
x. "National Ambient Air Quality Standards" or "NAAQS" shall mean national ambient
air quality standards that are promulgated pursuant to Section 109 ofthe Act, 42
U.S.C. § 7409;

9
10

y. "New Source Performance Standards" or "NSPS" shall mean those standards and

11

emission limitations applicable to the emissions of NOX, and 502,from existing,

12

modified or reconstructed Portland cement manufacturing facilities, codified at 40

13

C.F.R. Part 60, Subpart F;

14

z "NOX" shall mean oxides of nitrogen, measured in accordance with the provisions of
.

15
this Consent Decree;
16
17

aa. "Operating Day" shall mean any day in which Kiln Operation has occurred;

18

bb. "Paragraph" shall mean a portion of this Consent Decree identified by an Arabic

19

numeral;

2
0
cc. "Parties" shall mean the United States and Nevada Cement Company;
21
2
2

dd."PSD" shall mean the Prevention of Significant Deterioration program within the

23

meaning of Part C of Subchapter I of the Act,42 U.S.C. §§ 7470-7492,40 C.F.R.

2
4

52, and Nevada's State Implementation Plan implementing the PSD requirements;

25

ee. "Retire" or "Retirement" shall mean, with respect to any Kiln,(1)to permanently

2
6
27
28

Shutdown the Kiln; and (2)to comply with applicable State and federal requirements
f permanent cessation of Kiln operations, including submitting an application in
or
11

1

accordance with the Nevada SIP to remove permanently any legal authorization

2

applicable regulations or permits for further operation of the Kiln;

3
f "Section" shall mean a portion of this Consent Decree identified by a Roman
f.
4
5
6
7
8

numeral;
gg. "Selective Non-Catalytic Reduction" or "SNCR" shall mean a pollution control
system that injects an ammonia-based reagent into the gas stream without the use of a
catalyst for the purpose of reducing NOX emissions;

9
hh."Shutdown" shall mean the cessation of Kiln Operation. Shutdown begins when feed
10
11
12
13
14

to the Kiln is halted and ends when continuous Kiln rotation ceases;
ii. "SNCR Demonstration Period" shall mean that period of time identified in Appendix
A,following optimization, and at the conclusion of which, Defendant will propose a
30-Day Rolling Average Emission Limit for NOX for each Kiln that is achievable

15
16

through the implementation of SNCR,and that will be applied in accordance with

17

Section V(NOX Control Technology, Emission Limits, and Monitoring

18

Requirements) of this Consent Decree;

19

j "S02" shall mean the pollutant sulfur dioxide, measured in accordance with the
j.

2
0
provisions of this Consent Decree;
21
22

kk."Stack Ammonia" shall mean the concentration of ammonia in emissions from the

23

Defendant's Kilns as measured by the Ammonia CEMS during the period when an

24

SNCR is operational for that Kiln. Stack Ammonia is not, without subtraction of

25

Baseline Ammonia, considered Ammonia Slip;

2
6
11. "Startup" shall mean the time from when a Shutdown Kiln turns on the induced draft
2
7
28

f and begins firing fuel in the main burner. Startup ends when feed is being
an
12

1

continuously introduced into the Kiln for at least 120 minutes or when the feed rate

2

exceeds 60 percent ofthe Kiln design limitation rate, whichever occurs first;

3
4

mm. "State" shall mean the State of Nevada, and any agencies or subdivisions having

5

jurisdiction over the Facility, including the Nevada Division of Environmental

6

Protection("NDEP");

7
8

nn."Temporary Cessation,""Temporary Cessation of Kiln Operation" or "Temporarily
Cease Kiln Operation" shall mean the period when a Kiln is not in a state of Kiln

9
10
11

Operation and Defendant has provided the required notice pursuant to Paragraph 35
of Section VIII (Temporary Cessation of Kiln Operation) ofthis Consent Decree;

12

oo."Ton" or "Tons" shall mean short ton or short tons;

13

pp. "United States" shall mean the United States of America, acting on behalf of U.S.

14

EPA; and

15
16
17
18
19

qq."U.S. EPA" shall mean the United States Environmental Protection Agency and any
of its successor departments or agencies.
SECTION IV: CIVIL PENALTY
9 Within thirty (30)Days after the Effective Date of this Consent Decree,
.

2
0
21

Defendant shall pay to the United States as a civil penalty the sum of $550,000,

2
2

together with interest accruing from the date that the Consent Decree is lodged with

23

the Court, at the rate specified in 28 U.S.C. § 1961 as ofthe date of lodging.

24

Defendant shall pay the civil penalty due under this Paragraph 9 by FedWire

25

Electronic Funds Transfer("EFT")to the U.S. Department of Justice in accordance

2
6
27
28

with written instructions to be provided to Defendant following lodging of the
Consent Decree by the Financial Litigation Unit ofthe U.S. Attorney's Office for the
13

1

District of Nevada, 333 Las Vegas Blvd, Suite 5000, Las Vegas, Nevada, 89101. At

2

the time of payment, Defendant shall send a copy ofthe EFT authorization form and

3
the EFT transaction record, together with a transmittal letter, which shall state that

4
5

payment is for the civil penalty owed pursuant to the Consent Decree in United States

6

v. Nevada Cement Company, and shall reference the civil action number and DOJ

7

case number 90-5-2-1-10458, to the United States in accordance with Section XIX of

8

this Consent Decree (Notices); by email to [e-mail]; and to:

9
U.S. EPA Cincinnati Finance Office
2 Martin Luther King Drive
6
Cincinnati, Ohio 45268.

10
11
12

10. Defendant shall not deduct any penalties paid under this Section or

13
14

Section XIII (Stipulated Penalties) in calculating its federal or state or local income

15

tax.

16
17

SECTION V: NOX CONTROL TECHNOLOGY,EMISSION LIMITS AND
MONITORING REQUIREMENTS

18

A
.

19
2
0
21

NOx Control Technology and Emission Limits
1 1. Defendant shall install and Continuously Operate SNCR Control
Technology on each Kiln to reduce NOX emissions in accordance with the timeframes
and requirements set forth in Section III of Appendix A.

22
23

12. Defendant shall comply with all terms and conditions, including drafting

2
4

submittals and complying with protocols set forth in Appendix A,to establish 30-Day

25

Rolling Average Emission Limits for NOx applicable to each Kiln.

2
6
2
7

13. Within 30 Days after approval, conditional approval, or partial approval
by U.S. EPA pursuant to Section XI(Review and Approval of Submittals) of any

28 I
14

1

fina130-Day Rolling Average Emission Limit for NOX established pursuant to

2

Appendix A,Defendant shall achieve and maintain continuous compliance with such

3
4

30-Day Rolling Average Emission Limit for NOX.If the 30-day Rolling Average

5

Emission Limit for NOX is challenged pursuant to the Dispute Resolution provisions

6

of Section XV (Dispute Resolution), the final NOX Limit shall be the 30-Day Rolling

7

Average agreed to by the Parties at the conclusion of Informal Dispute Resolution. If

8

Informal Dispute Resolution does not resolve the dispute, Defendant shall comply

9
10
11
12
13
14
15

with its Proposed final NOX Emissions Limit until a final NOX Emissions Limit is
determined by the Court.
14. If the fina130-Day Rolling Average Emission Limit for NOX as
determined in Appendix A.IV.7.d is less than a 40%reduction in Baseline NOX
Emissions ofthe applicable Kiln, the United States may demand that Defendant

16

install a Low NOX Burner on such Kiln. The United States will make this demand

17

within 180 days of receipt ofthe Demonstration Report.

18
19

15. If the United States demands that Defendant install a Low NOX Burner on
either Kiln pursuant to Paragraph 14, Defendant shall install a Low NOX Burner

2
0
21

within 24 months of such demand and comply with Appendix A, Section V ofthis

22

Consent Decree. Following the installation of a Low NOX Burner on a Kiln, the

23

Defendant shall commence complying with the terms of Appendix A, Section V to

2
4

establish a new 30-Day Rolling Average Emissions Limit applicable to such Kiln

25

while operating Low NOX Burner and SNCR.

2
6
2
7
2
8

16. Upon submittal to EPA as part of a SNCR Demonstration Report of a
proposed 30 Day Rolling Average Emission Limit for NOX for a particular Kiln
15

1

pursuant to Appendix A, Defendant shall meet the proposed Limit for that Kiln until

2

such time as fina130-Day Rolling Average Limit is established pursuant to Paragraph

3
13.
4
5
6

B
.

NOx and Ammonia Continuous Emission Monitoring Systems
17. By no later than December 31, 2017, Defendant shall install and make

7

operational a NOX CEMS and an Ammonia CEMS at the stack of Kiln #2 in

8

accordance with the requirements of Appendix A.

9
a. On or before the date that a NOX CEMS and an Ammonia CEMS is required
10
11

pursuant to Paragraph 17, Defendant shall begin to record on a continuous basis

12

the daily clinker production rates by continuously meeting the requirements of 40

13

C.F.R. § 63.1350(d)to determine hourly clinker production rates.

14

18. Except during CEMS breakdowns, repairs, calibration checks, and zero

15
16

span adjustments, the CEMS required pursuant to Paragraphs 17 and 19 shall be

17

operated at all times during Kiln Operation. Such CEMS shall be used to

18

demonstrate compliance with the 30-Day Rolling Average Emission Limit for NOX

19

established in Section V.A(NOX Control Technology and Emission Limits) and

2
0

Appendix A of this Consent Decree.

21
22

19. By February 1, 2018, Defendant shall complete installation of a single

23

stack for Kiln #1, install and make operational a NOX CEMS and an Ammonia CEMS

24

at the stack and start collecting the same production data as Paragraph 17.a.

25

20. Each NOX CEMS required by this Consent Decree along with associated

2
6
flow monitors and weight meters shall monitor and record the applicable NOX
27
28

emission rate from each Kiln stack in units of lbs. of NOX per Ton of clinker
16

1

at the Kiln and shall be installed, certified, calibrated, maintained, and operat

ed in

2

accordance with the requirements of40 C.F.R. Part 60, Appendices B and F.

The

3
Ammonia CEMS shall be installed and operated in a manner that meets the

4

requirements of40 C.F.R. Part 60, Appendices B and F, and CTM 027.

5

21. For purposes ofthis Consent Decree, all emissions of NOX from the

G
7
7

Kilns

shall be measured by the NOX CEMS. During any time when CEMS are
inoperable

8

and otherwise not measuring emission of NOX from either Kiln, Defendant shall

9
the missing data substitution procedures in 40 C.F.R. Part 75, Subpart D.

10
11
12

SECTION VI: SOz EMISSION LIMITS AND MONITORING REQU
IREMENTS
A
.

13

SOZ Emission Limits
22. By the dates set forth below in Paragraphs 23 and 24, Defendant shall

14

achieve and maintain continuous compliance with the 30-Day Rolling

Average

15
Emission Limit for S02 set forth in Table 1:

16

TABLE 1

17
18
Kiln

30-Day Rolling Average Emission Limit for SOZ
Ibs. SOZ/Ton of clinker

Kiln #1

1.1 lbs S02/ Ton of clinker

Kiln #2

19

1.1 lbs SOz/ Ton of clinker

2
0
21
22
23
2
4
B
.
25
2
6
2
7

SOZ Continuous Emission Monitoring Systems
23. By no later than December 31, 2017, Defendant shall install and
operational an S02 CEMS at the stack of Kiln #2.

28
17

make

1
2

24. No later than February 1, 2018, Defendant shall install and

make

operational an S02 CEMS at the stack of Kiln #1.

3
25. Except during CEMS breakdowns, repairs, calibration check

s, and zero

4
5

span adjustments, the SOz CEMS required pursuant to Paragraphs

6

operated at all times during Kiln Operation. Each such
S02 CEMS shall be used at

7

each Kiln to demonstrate compliance with the 30-Day Rolli

8

23 and 24 shall be

ng Average Emission

Limit for S02 established in Section VI.A(S02 Emission

9

Limits) of this Consent

Decree.
10
11

26. Each S02 CEMS required for this Consent Decree, along

12

flow monitor and weight meters, shall monitor and recor

13

emission rate from each Kiln stack in units of lb of

with associated

d the applicable S02

S02 per Ton of clinker produced

14
15
16
17
18
19

at each Kiln and shall be installed, certified, calibrated

, maintained, and operated in

accordance with the applicable requirements of40 C.F.R

. Part 60.

27. For purposes ofthis Consent Decree, all emissions

shall be measured by SOz CEMS. During any time when
the CEMS are inoperable
and otherwise not measuring emissions of

2
0
21

of S02 from the Kilns

S02 from any Kiln, Defendant shall apply

the missing data substitution procedures in 40 C.F.R.

Part 75, Subpart D.

22

SECTION VII: OTHER INJUNCTIVE RELIEF

23

Good Pollution Control Practices

2
4

28. At all times, Defendant shall maintain and opera

te the Kilns, including all

25

associated air pollution control equipment, in a mann

er consistent with good air

2
6
27

pollution control practice.

28
18

1
2

Mitigation
29. Within two years of the Date of Entry ofthis Consent Decree, Defendant

3
shall replace an existing heavy-duty diesel truck and an existing rail car mover that
4
5

are identified in Appendix B of this Consent Decree with a new diesel truck and a

6

new rail car mover with required emissions controls, as described more fully in

7

Appendix B (the "Projects"). Defendant shall spend no less than $420,000 for the

8

Projects ("Project Dollars")

9
10

30. Defendant, shall maintain, and, within 30 Days upon U.S. EPA's request,

11

provide to U.S. EPA all documents that substantiate work completed on the Projects

12

in accordance with Section XIX (Notices).

13
14

31. Defendant certifies that Defendant is not otherwise required by law to
perform the Projects, that Defendant is unaware of any other person who is required

15
16

by law to perform the Projects, and that Defendant will not use the Projects, or

17

portion thereof, to satisfy any obligations that it may have under other applicable

18

requirements oflaw. Defendant certifies that it has not, and will not, deduct any

19

in implementing Section VII(Other Injunctive Relied, in calculating its federal or

2
0
state income taxes.
21
22

32. Beginning six (6) months after the Effective Date ofthis Consent Decree,

23

and continuing until completion ofthe Projects, Defendant shall provide U.S. EPA

24

with semi-annual or annual updates concerning the progress of the Projects in the

25

semi-annual or annual reports required (as applicable) in Section XII(Reporting

2
6
Requirements) ofthis Consent Decree.
27
28
~
]

1

33. Defendant shall use good faith efforts to secure as much environmental

2

benefit as possible for the Project Dollars expended, consistent with the applicable

3
requirements and limits ofthis Consent Decree. Within sixty (60)Days following
4
5

completion ofthe Projects required under this Consent Decree, Defendant shall

6

submit to U.S. EPA a report that documents the date that the Projects were

7

completed, Defendant's results from implementing the Projects, including the

8

emission reductions or other environmental benefits achieved (including any

9
10
11

reductions achieved for NOX, or S02), and the Project Dollars expended by
in implementing the Projects.

12

34. In connection with any communication to the public or to shareholders

13

regarding Defendant's actions or expenditures relating in any way to the Projects,

14

Defendant shall include prominently in the communication the information that the

15
16
17
18
19

actions and expenditures were required as part of a negotiated consent decree to
resolve allegations that Defendant violated the Clean Air Act.
SECTION VIII: TEMPORARY CESSATION OF KILN OPERATION
35. If Defendant has Temporarily Ceased Kiln Operation of any Kiln on the

2
0
date by which Defendant is required to install and/or Continuously Operate any
21
22

Control Technology at that Kiln under Section V (NOX Control Technology, Emis

23

Limits, and Monitoring Requirements), or Section VI(SOz Emission Limits and

24

Monitoring Requirements), Defendant shall provide written notice to U.S. EPA

25

within ten(10)Days after such Temporary Cessation began, specifying the date on

2
6
27
28

which such period of Temporary Cessation began. Defendant shall provide such
written notice pursuant to Section XIX (Notices).
2
0

1
2

36. If Defendant has provided the written notice as required in Paragraph 35,
above, Defendant shall not be required to install and Continuously Operate the

3
4

Control Technology at that Kiln by the dates required in Section V(NOX Control

5

Technology, Emission Limits, and Monitoring Requirements) and Section VI(SOz

6

Emission Limits and Monitoring Requirements) of this Consent Decree with respect

7

to that Kiln. However, Defendant shall not recommence Kiln Operation after the

8

dates required in Section V(NOX Control Technology, Emission Limits, and

9
10

Monitoring Requirements) ofthis Consent Decree with respect to that Kiln unless the

11

Defendant has: 1)installed and Commenced Continuous Operation of the Control

12

Technologies required by this Consent Decree for that Kiln; 2)commenced

13

compliance with all requirements for that Kiln contained in Section V (NOX Control

14

Technology, Emission Limits, and Monitoring Requirements) and Section VI(S02

15
16

Emission Limits and Monitoring Requirements); and 3)provided written notice to

17

U.S. EPA within 30 Days after recommencing Kiln Operation. If Defendant

18

recommences Kiln Operation without installing and Commencing Continuous

19

Operation ofthe Control Technology required under this Consent Decree and does

2
0
21

not demonstrate compliance with all requirements for that Kiln contained in Section

22

V(NOX Control Technology, Emission Limits, and Monitoring Requirements) and

23

Section VI(S02 Emission Limits and Monitoring Requirements), Defendant shall be

2
4

liable for stipulated penalties pursuant to Section XIII (Stipulated Penalties).

25
2
6
27
28
21

1
2

SECTION IX: PROHIBITION ON NETTING CREDITS OR OFFSETS FROM
REQUIRED CONTROLS

3
4

37. Except as specifically stated to the contrary in this Consent Decree, NOX

5

and SOz emission reductions resulting from compliance with the requirements of this

6

Consent Decree shall not be considered as a creditable contemporaneous emission

7

decrease for the purpose of obtaining a netting credit under the Clean Air Act's Non-

8

attainment NSR and PSD programs.

9
10

38. The limitations on the generation and use of netting credits or offsets set

11

f
orth in Paragraph 37 do not apply to emission reductions achieved by Defendant that

12

are surplus to those required under this Consent Decree ("surplus emission

13

reductions"). For purposes ofthis Paragraph, surplus emission reductions are the

14
15

reductions over and above those required under this Consent Decree, including any

16

f
ina130-Day Rolling Average Emission Limit for NOX established pursuant to

17

Appendix A,that result from Defendant's compliance with federally enforceable

18

emissions limits that are more stringent than limits imposed under this Consent

19

Decree or from Defendant's compliance with emissions limits otherwise required

2
0
21
22
23
24
25

under applicable provisions ofthe Clean Air Act or with an applicable SIP that
contains more stringent limits than those imposed under this Consent Decree.
39. Nothing in this Consent Decree is intended to preclude the emission
reductions generated under this Consent Decree from being considered by U.S. EPA
or a State as creditable contemporaneous emission decreases for the purpose of

2
6
27

attainment demonstrations submitted pursuant to § 110 of the Act,42 U.S.C. § 7410,

28

or in determining impacts on NAAQS,PSD increments, or air quality-related values,
22

1

or for demonstrating reasonable progress under the regional haze program of the

2

Clean Air Act pursuant to 42 U.S.C. §§ 7491-92.

3

SECTION X: PERMITS

4
5

40. Where any compliance obligation under this Consent Decree requires

6

Defendant to obtain a federal, State, or local permit or approval, Defendant shall

7

submit a timely and complete application for such permit or approval and take all

8

other actions necessary to obtain all such permits or approvals, allowing for all

9
required processing and review including requests for additional information by the
10
11

permitting or approval authority. The inability of Defendant to obtain a permit in

12

adequate time to allow compliance with the deadlines stated in this Consent Decree

13

may be considered a Force Majeure event if Defendant demonstrates that it exercised

14

best efforts to timely fulfill its permitting obligations and has otherwise satisfied the

15
requirements of Section XIV (Force Majeure)ofthis Consent Decree. If, after
16
17

demonstrating compliance with the requirements of this Paragraph, Defendant

18

determines that it is unable to timely obtain a permit or approval necessary to install

19

and Continuously Operate Control Technology under this Consent Decree, then

2
0

Defendant shall within 10 days notify EPA in writing pursuant to Section XIV (Force

21
22

Majeure) ofthis Consent Decree and shall request an extension of time necessary to

23

obtain such permit or approval and install and shake down the required

2
4

improvements. If EPA determines that Defendant's inability to timely obtain any

25

such required permit or approval is a Force Majeure event, then the provisions of

2
6
Paragraph 67 shall apply to extend the deadline for installation and commencement
27
28
23

1

Continuous Operation of the Control Technology and for achieving and maintaining

2

compliance with the applicable 30-Day Rolling Average Emission Limits.

3
41. In addition to having first obtained any required preconstruction permits
4
5

other approvals pursuant to Paragraph 40, within 3 months after the establishment of

6

the fina130-Day Rolling Average Emission Limit for NOX established pursuant to

7

Section V (NOX Control Technology, Emissions Limits and Monitoring

8

Requirements), including Final Dispute Resolution if applicable, Defendant shall

9
apply to NDEP to include the applicable requirements of Sections V.A(NOx Control
10
11

Technology and Emission Limits) and VI.A(S02 Emission Limits), and any

12

monitoring requirements, including those in Sections V.B(NOX Continuous Emission

13

Monitoring System)and VI.B (S02 Continuous Emission Monitoring Systems)of

14

this Consent Decree in a federally enforceable operating permit or other permit or

15
approval issued under the SIP of Nevada and under authority independent ofthe
16
17

NDEP's authority to issue Title V permits. For the purpose ofthis Paragraph, the

18

ammonia monitoring requirements identified in Section V do not constitute NOx

19

monitoring requirements. Following submission ofthe application for the permit or

2
0
approval, Defendant shall cooperate with NDEP by promptly submitting all
21
22

information that such permitting authority seeks following its receipt ofthe

23

application for the permit. The methods specified in this Consent Decree for

2
4

demonstrating compliance with the limits in this Consent Decree are not intended to

25

change the means by which Defendant demonstrates compliance with standards not

2
6
addressed by this Consent Decree. The requirements of this Paragraph are satisfied
2
7
28

a preconstruction permit was obtained, that permit serves as a state operating permit
2
4

1

under the Nevada SIP and that permit contains the elements identified in this

2

Paragraph.

3

42. Upon issuance of any permit or approval required under Paragraphs 40

4
5

and 41, Defendant shall file any applications necessary to incorporate the

6

requirements ofthat permit into the Title V operating permit of the Facility.

7

Defendant shall not challenge the inclusion in any such permit ofthe Emission Limits

8

expressly prescribed in this Consent Decree (including, where applicable, 30-Day

9
Rolling Average Emission Limits for NOX determined in accordance with Appendix
10
11

A or of any other requirement ofthis Consent Decree.
)

12

43. For each Kiln, Defendant shall provide U.S. EPA with a copy of each

13

application for a permit to address or comply with any provision ofthis Consent

14

Decree, as well as a copy of any permit proposed as a result of such application, to

15
allow for timely U.S. EPA participation in any public comment opportunity.
16
17

44. In lieu of incorporating the terms ofthe Consent Decree directly into a

18

permit issued under a SIP pursuant to Paragraph 41, Defendant may request that

19

NDEP submit the portions of the Consent Decree applicable to the Facility in Nevada

2
0

to the U.S. EPA for approval under the State's SIP in accordance with 42 U.S.C. §

21
22

7410(k). Upon approval by the U.S. EPA,those portions ofthis Consent Decree will

23

be incorporated into the Nevada SIP, and subsequently incorporated into Title V

2
4

permits for the Facility consistent with applicable requirements in 40 C.F.R. Part 70

25

or Nevada-specific rules adopted and approved consistent with Part 70. Defendant

2
6
agrees not to contest the submittal of any such proposed SIP revision that
27
28

incorporates the terms of this Consent Decree to U.S. EPA,or U.S. EPA's approval
25

1

of such submittal, or the incorporation ofthe applicable portions ofthis Consent

2

Decree through these SIP requirements into the Title V permits.

3
SECTION XI: REVIEW AND APPROVAL OF SUBMITTALS
4
5

45. After review of any plan, report, or other document that is required to be

6

submitted pursuant to this Consent Decree, U.S. EPA,shall in writing:(a) approve

7

the submission;(b)approve the submission upon specified conditions;(c)approve

8

part of the submission and disapprove the remainder; or(d)disapprove the

9
submission.
10
11

46. If the submission is approved pursuant to Paragraph 45, Defendant shall

12

take all actions required by the plan, report, or other document, in accordance with

13

the schedules and requirements ofthe plan, report, or other document, as approved.

14

the submission is conditionally approved or approved only in part, pursuant to

15
Paragraph 45.b or c, Defendant shall, upon written direction of U.S. EPA,take all
16
17

actions required by the approved plan, report, or other item that U.S. EPA determine:

18

are technically severable from any disapproved portions, subject to Defendant's right

19

to dispute the specified conditions or the disapproved portions, under Section XV

2
0

(
Dispute Resolution) ofthis Consent Decree and the severability of such portions.

21
22

47. If the submission is disapproved in whole or in part pursuant to Paragraph

23

45.c or d, Defendant shall, within 45 Days or such other time as the Parties agree to i.

2
4

writing, correct all deficiencies and resubmit the plan, report, or other item, or

25

disapproved portion thereof, for approval, in accordance with the preceding

2
6
Paragraphs. If the resubmission is approved in whole or in part, Defendant shall
27
28

proceed in accordance with the preceding Paragraph.
2
6

1

48. Any stipulated penalties applicable to an original submission that is

2

disapproved in whole or in part pursuant to Paragraph 45.c or d, as provided in

3
Section XIII (Stipulated Penalties) of this decree, shall continue to accrue during the
4
5

period specified in Paragraph 47, but any stipulated penalties that accrue following

6

the receipt of the submission shall not be payable unless the resubmission is untimely

7

or is disapproved in whole or in part; provided that, if the original submission was so

8

deficient as to constitute a material breach of Defendant's obligations under this

9
Decree, the stipulated penalties applicable to the original submission shall be due and
10
11

payable notwithstanding any subsequent resubmission.

12

49. If a resubmitted plan, report, or other item, or portion thereof, is

13

disapproved in whole or in part, U.S. EPA may again require Defendant to correct

14

any deficiencies in accordance with the preceding Paragraphs, or may itself correct

15
16
17
18
19

any deficiencies and seek stipulated penalties, subject to Defendant's right to invoke
Dispute Resolution under Section XV (Dispute Resolution) ofthis Consent Decree.
SECTION XIL• REPORTING REQUIREMENTS
50. Within 30 Days after the end of each half calendar year (i.e., June 30,

2
0
December 31) after the Effective Date, until termination ofthis Consent Decree
21
22

pursuant to Section XXIII (Termination), Defendant shall submit asemi-annual

23

report to U.S. EPA for the immediately preceding half calendar year period that shall:

2
4

a. Identify any and all dates on which Defendant has installed, or describe the

25

progress of installation of, each Control Technology required for each Kiln under

2
6
Section V(NOX Control Technology, Emission Limits and Monitoring
2
7
28
27

1

Requirements) and describe any problems encountered or anticipated during sucY

2

installation, together with implemented or proposed solutions;

3
4

b. Identify any and all dates on which Defendant has completed installation of, or

5

describe the progress of installation of, each continuous monitoring system

6

required under Section V.B(NOX and Ammonia Continuous Emission

7

Systems) and Section VI.B(S02 Continuous Emission Monitoring Systems)and

8

describe any problems encountered or anticipated during such installation,

9
10

together with implemented or proposed solutions;

11

c. Provide, in electronic format able to be manipulated with Microsoft Excel, all

12

CEMS data collected for each Kiln, reduced to 1 hour averages, in accordance

13

with 40 C.F.R. § 60.13(h)(2), including an explanation of any periods of CEMS

14

downtime together with any missing data for which Defendant applied missing

15
16

data substitution procedures, under Section V.B(NOX and Ammonia Continuous

17

Emission Monitoring Systems) or Section VI.B(S02 Continuous Emission

18

Monitoring Systems);

19

d. Demonstrate compliance with all applicable 30-Day Rolling Average Emission

2
0
Limits ofthis Consent Decree;
21
22
23
2
4
25

e. Provide a complete description and status of all actions Defendant has undertaken
to comply with each ofthe Appendices of this Consent Decree;
f Describe the status of permit applications and any proposed SIP revisions made to
.
implement the requirements of this Consent Decree; and

2
6
27
28

g. Describe the status of any operation and maintenance work relating to activities
required under this Consent Decree.
28

1

The semi-annual report shall also include a description of any non-compliance with the

2

requirements of this Consent Decree and an explanation ofthe likely cause of non-com

pliance

3
4
5

and ofthe remedial steps taken, or to be taken, to prevent or minimize such non-compliance

.

51. If Defendant violates, or has reason to believe that it may violate, any

6

requirement ofthis Consent Decree, Defendant shall notify the United States of such

7

violation and its likely duration, in writing (including by email), within ten(10)

8

Business Days ofthe Day Defendant first becomes aware of the violation, with an

9
10

explanation of the violation's likely cause and ofthe remedial steps taken, or to be

11

taken, to prevent or minimize such violation and to mitigate any adverse effects of

12

such violation. Defendant shall investigate the cause ofthe violation and shall then

13

submit an amendment to the report required under Paragraph 50, including a full

14
15

explanation of the cause of the violation, within 30 Days ofthe Day Defendant

16

becomes aware of the cause ofthe violation. Nothing in this Paragraph or the

17

f
ollowing Paragraph relieves Defendant of its obligation to provide the notice

18

required by Section XIV (Force Majeure)ofthis Consent Decree or to avail itself

19

Section XIV (Force Majeure) if Defendant contends a Force Majeure event occurred

of

2
0
21

52. Whenever any violation of this Consent Decree, or of any applicable

22

permits required under this Consent Decree, or any other event affecting Defendant':

23

performance under this Consent Decree, or the performance of the Kilns, may pose

2
4

immediate threat to the public health or welfare or the environment, Defendant shall

25

notify U.S. EPA,orally or by electronic or facsimile transmission as soon as possible

,

2
6
27

but no later than 24 hours after Defendant first knew,or should have known,of the

28 I
29

1

violation or event. This procedure is in addition to the requirements set forth in the

2

preceding Paragraph.

3
53. All reports shall be submitted to the persons designated in Section XIX
4
5
6
7
8

(
Notices) ofthis Consent Decree.
54. Each report submitted by Defendant under this Section or Appendix A or
Appendix B shall be signed by an official ofthe submitting party and include the
following certification:

9
10
11
12
13
14
15
16
17

I certify under penalty oflaw 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 gather
and evaluate the information submitted. Based on my inquiry ofthe
person or persons who manage the system, or those persons directly
responsible for gathering the 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.
This certification requirement does not apply to emergency or similar notifications where
compliance would be impractical. Failure to certify as immediately above is a violation of the

18
Consent Decree and is subject to stipulated penalties.
19
2
0

55. The reporting requirements of this Consent Decree do not relieve

21

Defendant of any reporting obligations required by the Clean Air Act or

22

implementing regulations, or by any other federal, State, or local law, regulation,

23

permit, or other requirement.

24
25

56. Any information provided pursuant to this Consent Decree may be used

2
6

by the United States in any proceeding to enforce the provisions of this Consent

27

Decree and as otherwise permitted by law.

28
[
CSI;

1
2

SECTION XIII: STIPULATED PENALTIES
57. Defendant shall be liable for stipulated penalties to the United States for

3
violations ofthis Consent Decree as specified in Table 2 below, unless excused under ~
4
5

Section XIV (Force Majeure). A violation includes failing to perform any obligation

6

required by the terms of this Decree, including any work plan or schedule approved

7

under this Decree, according to all applicable requirements of this Decree and within

8

the specified time schedules established by or approved under this Decree. Once the

9
10

f NOx emission limit is established pursuant to Appendix A,the parameters used
inal

11

to establish the final NOx emission limit shall not be enforceable or subject to

12

stipulated penalties. Violation of an Emission Limit that is based on a 30-Day Rolling

13

Average is a violation on every Day on which the average is based. Each subsequent

14

Day of violation after a violation of a 30-Day Rolling Average Emission Limit is

15
16

subject to the corresponding penalty per Day specified in Table 2, below. Where a

17

violation of a 30-Day Rolling Average Emission Limit(for the same pollutant and

18

f
rom the same source) recurs within periods ofless than thirty (30)Days, Defendant

19

shall not pay a daily stipulated penalty for any Day of recurrence for which a

2
0
stipulated penalty is already payable. Stipulated penalties may only be assessed once
21
22

f a given Day within any averaging period for violation of any particular Emission
or

23

Limit. Stipulated penalties for consecutive periods of violation of an Emission Limit

2
4

shall be calculated based upon the violation of the Emission Limit for the same

25

pollutant from the same Kiln.

2
6
27
28
31

1
2
3
4

TABLE 2
Consent Decree Violation

I Stipulated Penalty

a. Failure to pay the civil penalty in the
manner specified in Section IV (Civil
Penalty) ofthis Consent Decree

$7,500 for each Day

5
6
7
8
9
10
11
12

. Failure to comply with a 30-Day Rolling
1
Average Emission Limit for NOX or S02
where the emissions are less than 5% in
excess ofthe limits set forth in this
Consent Decree

$1,000 for each Operating Day during
any 30-Day rolling period where the
violation is less than 5% in excess of
the Limit

c. Failure to comply with a 30-Day Rolling
Average Emission Limit for NOX or S02
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

$2,000 for each Operating Day during
any 30-Day rolling period where the
violation is equal to or greater than 5°~
but less than 10% in excess of the
Limit

13
14
15
16
17
18
19
2
0
21
22
23
24
25
2
6
27

Failure to comply with a 30-Day Rolling
Average Emission Limit for NOX or SOz $4,000 for each Operating Day during
any 30-Day rolling period where the
where the emissions are equal to or
greater than 10% in excess ofthe limits violation is equal to or greater than
10% in excess of the Limit
set forth in this Consent Decree
e. Failure to install or Commence
Continuous Operation or Continuously
Operate Control Technology at a Kiln
required by the deadlines established in
Section V (NOX Control Technology,
Emission Limits and Monitoring
Requirements) and/or Appendix A of
this Consent Decree
~ Failure to install or operate a CEMS or
~
other monitoring device in conformance
with the requirements of Section V.B.
( X and Ammonia Continuous
NO
Emission Monitoring Systems), Section
VI.B (S02 Continuous Emission
Monitoring Systems), or Appendix A,as
applicable. CEMS down time and
missing data periods are not subject to

28
32

$5,000 for each consecutive Operating
Day during the first 20 Days,$ 10,000
for each consecutive Operating Day
for the next 40 Days, and $32,500 for
each consecutive Operating Day
thereafter

$1,000 for each Operating Day for
each such failure per Kiln

l j Consent Decree Violation
2
3
4
5
6
7
8
!l
►
10
11
12
13
14
15
16
17
18
19
20

Sti ulated Penal

g. Failure to apply for any permit or permit
amendment or seek a SIP approval
required by Section X (Permits) or
provide a timely copy to USEPA
h. Failure to timely submit, modify, or
implement, as approved, any report,
plan, study, analysis, protocol, or other
submittal required by this Consent
Decree, including electronic versions as
required, including those submissions
approved pursuant to Section XI
(Review and Approval of Submittals) of
this Consent Decree
i. Failure to provide new owner or
operator of the Facility a copy of this
Consent Decree in accordance with
Paragraph 4
j. Failure to provide certifications,
progress reports, updates and/or a final
report per the schedule in Paragraphs 50,
51, and 52
k. Failure to maintain or instruct
Contractors to maintain documents,
records or other information that relate
i any manner to performance of
n
obligations in the Consent Decree, as per
Paragraph 84
1. Any other violation of the Consent
Decree

$1,000 for each Day for each such
failure

For each separate failure, $750 for
each Day during the first 10 Days,
$1,000 per Day thereafter

$1,000 for each Day for each such
failure

$1,000 per Day for each Day late per
project

$1,000 for each record or Day of data
not collected or maintained as required

$1,000 for each Day for each violation

21
22

58. Subject to the provisions of Paragraph 57 above, stipulated penalties

23

this Section shall begin to accrue on the Day after performance is due or on the Day a

24

violation occurs, whichever is applicable, and shall continue to accrue until

25
26

performance is satisfactorily completed or until the violation ceases. Stipulated

27

penalties shall accrue simultaneously for separate violations of this Consent Decree

28

but each separate violation shall be subject to no more than one stipulated penalty.
33

1
2

stipulated penalties are subject to challenge by Defendant pursuant to Section

XIV

(
Force Majeure).

3
4
5
6
7
8

59. Defendant shall pay any stipulated penalty within thirty (30) Days of
receiving the United States' written demand.
60. The United States may, in the unreviewable exercise of its discretion,
reduce or waive stipulated penalties otherwise due the United States under this
Consent Decree.

9
10

61. Stipulated penalties shall accrue as provided in this Section, during any

11

Dispute Resolution, but need not be paid until the following:

12

a. If the dispute is resolved by agreement between the Parties or by a decisio
n of

13

United States that is not appealed to the Court, Defendant shall pay accrued

14
15

the

penalties determined to be owing, together with interest accruing from the 31St

16

Day after the written demand in Paragraph 59, within 30 Days ofthe effectiv

17

date ofthe agreement or the receipt of U.S. EPA's decision or order.

18
19 ~'

e

b. If the dispute is appealed to the Court and the United States is the prevailing
party, in whole or in part, as may be determined by the Court, Defendant shall

2
0
21

all accrued penalties determined by the Court to be owing, together with interest

22

accruing from the 31St Day after the written demand in Paragraph 59, within 60

23

Days of receiving the Court's decision or order, except as provided in

2
4

Subparagraph c below.

25

c. If any Party appeals the District Court's decision, Defendant shall pay all
accrued

2
6
27

penalties determined to be owing,together with interest accruing from the 31St

28
34

1

Day after the written demand in Paragraph 59, within 15 Days of receiving the

2

f
inal appellate court decision.

3
62. Defendant shall pay stipulated penalties owing to the United States in the

4
5

manner set forth in Paragraph 9 and with the confirmation notices to the persons

6

specified in Paragraph 95, except that the transmittal letter shall state that the

7

is for stipulated penalties and shall state for which violations) the penalties are being

8

paid.

9
10

63. The United States may choose between (1) stipulated penalties and (2)

11

other right, remedy or sanction available to it, but not both. The payment of penalties

12

and interest, if any, shall not alter in any way Defendant's obligation to complete the

13

performance of the requirements of this Consent Decree. This Paragraph shall not

14

limit the United States' ability to seek injunctive relief associated with such

15
16
17
18
19
2
0
21

violations.
64. Defendant shall not deduct stipulated penalties paid under this Section in
calculating their federal, state or local income tax.
65. If Defendant fails to pay stipulated penalties according to the terms of this
Consent Decree, Defendant shall be liable for interest on such penalties, as provided

2
2

for in 28 U.S.C. § 1961, accruing as of the date payment became due. Nothing in this

23

Paragraph shall be construed to limit the United States from securing any remedy

2
4

otherwise provided by law for Defendant's failure to pay any stipulated penalties.

25
2
6

66. Subject to the provisions of Section XVII (Effect of

27

Settlement/Reservation of Rights) of this Consent Decree, the stipulated penalties

~► :~

provided for in this Consent Decree shall be in addition to any other rights, remedie

s,

35

1

or sanctions available to the United States for Defendant's violation ofthis Consent

2

Decree or applicable law. Where a violation of this Consent Decree is also a violation

3
4
5
6
7
8

of the Clean Air Act, Defendant shall be allowed adollar-for-dollar credit, for any
stipulated penalties paid, against any statutory penalties imposed for such violations.
SECTION XIV: FORCE MAJEURE
67. "Force Majeure"(for purposes of this Consent Decree)is defined as any
event arising from causes beyond the control of Defendant, of any entity controlled

9
10

by Defendant or Defendant's Contractors, that causes a delay or impediment to

11

performance in complying with any obligation under this Consent Decree despite the

12

Defendant's best efforts to fulfill the obligation. The requirement that the Defendant

13

exercise best efforts to fulfill the obligation includes using best efforts to anticipate

14

any potential Force Majeure event and best efforts to address the effects of any such

15
16

event(a)as it is occurring and (b)after it has occurred to prevent or minimize any

17

resulting delay and the effects of such event to the greatest extent possible. Force

18

Majeure does not include the Defendant's financial inability to perform any

19

obligation under this Consent Decree. Force Majeure may include Defendant's

2
0
21

inability after demonstrating compliance with the requirements of Paragraphs 40 and

22

41 to obtain a permit or approval such that there is adequate time to install and

23

Continuously Operate Control Technology required under this Consent Decree.

24
25

68. If any event occurs or has occurred that may delay the performance of any
obligation under this Consent Decree, whether or not caused by a Force Majeure

2
6
27
28

event, Defendant shall provide written notice or notice by electronic mail (email)to
the representatives of U.S. EPA designated to receive notice pursuant to Section XIX
36

1

(Notices) within seven(7)Business Days of when Defendant first knew that the

2

might cause a delay. Within 21 Days thereafter, Defendant shall provide in writing

3
U.S. EPA an explanation and description ofthe reasons for the delay; the anticipated
4
5

duration of the delay; all actions taken or to be taken to prevent or minimize the

6

delay; a schedule for implementation of any measures to be taken to prevent or

7

mitigate the delay or the effect ofthe delay; Defendant's rationale for attributing such

8

delay to a Force Majeure event if it intends to assert such a claim; and a statement as

9
to whether, in the opinion of Defendant, such event may cause or contribute to an
10
11

endangerment to public health, welfare or the environment. Defendant shall include

12

with any notice all available documentation supporting the claim that the delay was

13

attributable to a Force Majeure. Failure to comply with the above requirements shall

14

preclude Defendant from asserting any claim of Force Majeure for that event for the

15
16

period of time of such failure to comply, and for any additional delay caused by such

17

failure. Defendant shall be deemed to know of any circumstance of which

18

any entity controlled by Defendant, or Defendant's Contractors knew or should have

19

known.

2
0
69. If U.S. EPA agrees that the delay or anticipated delay is attributable to a
21
22

Force Majeure event, the time for performance of the obligations under this Consent

23

Decree that are affected by the Force Majeure event will be extended by U.S. EPA

2
4

such time as is necessary to complete those obligations. An extension of the time for

25

performance of the obligations affected by the Force Majeure event shall not, of

2
6
itself, extend the time for performance of any other obligation. U.S. EPA will notify
27
28
37

1

Defendant in writing ofthe length of the extension, if any, for performance of the

2

obligations affected by the Force Majeure event.

3
70. If U.S. EPA does not agree that the delay or anticipated delay has been or
4
5

will be caused by a Force Majeure event, U.S. EPA will notify Defendant in writing

6

of its decision.

7
8

71. If Defendant elects to invoke the dispute resolution procedures set forth in
Section XV (Dispute Resolution), it shall do so no later than 15 Days after receipt of

9
10

U.S. EPA's notice. In any such proceeding, Defendant shall have the burden of

11

demonstrating by a preponderance ofthe evidence that the delay or anticipated delay

12

has been or will be caused by a Force Majeure event, that the duration ofthe delay or

13

the extension sought was or will be warranted under the circumstances, that best

14

efforts were exercised to avoid and mitigate the effects of the delay, and that

15
16

Defendant complied with the requirements of Paragraphs 67 and 68, above. If

17

Defendant carries this burden, the delay at issue shall be deemed not to be a violation

18

by Defendant of the affected obligation ofthis Consent Decree identified to U.S. EPA

19

and the Court.

2
0
SECTION XV: DISPUTE RESOLUTION
21
22

72. Unless otherwise expressly provided for in this Consent Decree, the

23

dispute resolution procedures of this Section shall be the exclusive mechanism to

24

resolve disputes arising under or with respect to this Consent Decree. Defendant's

25

failure to seek resolution of a dispute under this Section shall preclude Defendant

2
6
2
7
2
8

from raising any such issue as a defense to an action by the United States or Affected
State to enforce any obligation of Defendant arising under this Consent Decree.
38

1
2

73. Informal Dispute Resolution for Emission Limit Setting Process under
Appendix A. If Defendant invokes Dispute Resolution regarding an EPA-established

3
4

alternative fina130-Day Rolling Average Emission Limit for NOX,Defendant shall

5

promptly (within 15 days) initiate the process set forth in this Paragraph to hire an

6

independent Contractor who will be tasked to analyze the 30-Day Rolling Average

7

Emission Limits for NOX established by EPA and proposed by Defendant and to

8

provide, for the benefit of both U.S. EPA and Defendant, the reports, analysis, and

9
10

services identified in this Paragraph, below, by the specified deadlines. Defendant

11

shall bear all costs associated with the Contractor's work up to $100,000, and shall

12

provide the Contractor access to records, employees, contracts, and facilities which

13

are reasonably necessary to complete the report required by this Paragraph. If costs

14
15

to perform the work set forth in the Scope of Work(SOW)requirements described in

16

this Paragraph are expected to be higher than $100,000, Defendant and U.S. EPA

17

will, upon written mutual agreement, limit or modify the nature and/or scope ofthe

18

work to be performed under this Paragraph to meet the expenditure limitation. For

19

purposes of this Paragraph,"independent" shall mean a qualified professional with at

2
0
21

least 5 years of experience relating to the operations of and/or emissions from cement

22

kilns or similar sources and who has not previously been employed or retained by

23

Defendant in any capacity (unless otherwise approved by U.S. EPA).

2
4

a Defendant shall submit to U.S. EPA for approval, the name and qualifications of
.

25

proposed Contractor for this engagement at the time it submits its Written Notice

2
6
27

of Dispute in accordance with Section XIX (Notices). If U.S. EPA disapproves o:

28

the Contractor, Defendant is required to propose to U.S. EPA within 15 Days of
39

1

the disapproval a different Contractor, also subject to U.S. EPA's approval. If

2

U.S. EPA disapproves the second Contractor, U.S. EPA may choose and identify

3
to Defendant the Contractor to be employed. Defendant shall enter into a
4
5

with the Contractor, containing the SOW requirements in Paragraph 73.b, below

6

( modified to meet the expenditure limitations), within 14 Days of U.S. EPA's
as

7
8

approval or final identification ofthe Contractor.
b. As part of the contract, Defendant shall provide to the Contractor a SOW which

9
will include a requirement or direction to:
10
11

i. Analyze all the data collected under Appendix A,as well as the

12

Demonstration Report, and proposed 30-Day Rolling Average Emission

13

Limits for NOX;

14

ii. Submit to U.S. EPA and Defendant, a report on the appropriate 30-day

15
16

rolling average emission limit, consistent with the methodology set forth

17

in and information collected through Appendix A,as applicable, based

18

upon the injection rates and the operational parameters approved as part of

19

the SNCR Design Reports and the SNCR Optimization Reports required

2
0
by Appendix A,as applicable. The conclusions of this report shall be
21
22

based on all of the information and data collected during the SNCR

23

Optimization and Demonstration Periods, as applicable, as well as any

24

additional site-specific information available to the Contractor. The

25

shall include a section on whether the data collected during the

2
6
27

Demonstration Period is representative of normal operations of the unit, as

28
.~

1

well as a recommended fina130-Day Rolling Average Emission Limit for

2

NOX using the protocol and procedures in Appendix A,as applicable;

3
iii. Make available to U.S. EPA any and all data evaluated, and reveal all
4
5

communications with Defendant in the course of work pursuant to the

6

SOW. The Contractor shall also be tasked in the SOW to attend up to 15

7

hours of meetings specifically requested by U.S. EPA,to answer q

8

concerning any analysis or work undertaken pursuant to the SOW.

9
10

Defendant may attend any such meeting between U.S. EPA and the

11

Contractor. The SOW shall make clear that the Contractor is free to

12

discuss its analysis, findings and the content of their report with U.S. EPA

13

prior to the completion ofthe report; and

14

iv. Complete the Contractor report within 45 Days from the time ofthe

15
16
17
18
19

effective date ofthe contract.
c. The results ofthe Contractor report will inform the parties in the process of
engaging in informal dispute resolution on the proposed and final permit limit.
74. If the United States and Defendant are unable to reach agreement on a

2
0
f
ina130-Day Rolling Average Emission Limit for NOX within 20 Days after receipt
21
2
2

the Contractor report by EPA referenced in the prior paragraph, Defendant may

23

request formal dispute resolution under Paragraph 76 ofthis Consent Decree. The

24

Contractor report shall be part ofthe Dispute Resolution record in any formal dispute

25

proceedings under this Consent Decree.

2
6
27
28

75. Informal Dispute Resolution with Respect to All Other Disputes. Any
dispute subject to Dispute Resolution under this Consent Decree shall first be the
41

1
2

subject of informal negotiations. The dispute shall be considered to have arisen
when)
Defendant sends the United States a written Notice of Dispute. Such Notice of

3
4

Dispute shall state clearly the matter in dispute. The period of informal negotia
tions

5

shall not exceed 30 Days from the date the dispute arises, unless that period is

6

modified by written agreement. If the Parties cannot resolve a dispute by informal

7

negotiations, then the position advanced by the United States shall be considered

8

binding unless, within 30 Days after the conclusion ofthe informal negotiation

9
10
11

period, Defendant invokes formal dispute resolution procedures as set forth below.
76. Formal Dispute Resolution. Defendant shall invoke formal dispute

12

resolution procedures, within the time period provided in the preceding Paragra

13

serving on the United States a written Statement of Position regarding the matter

14
15

ph, by
in

dispute. The Statement of Position shall include, but need not be limited to,
any

16

f
actual data, analysis, or opinion supporting Defendant's position and any support

17

documentation relied upon by Defendant.

18
19

ing

77. The United States shall serve its Statement of Position within 45 Days of
receipt of Defendant's Statement of Position. The United States' Statement
of

2
0
21

Position shall include, but need not be limited to, any factual data, analysis,

or

22

opinion supporting that position and any supporting documentation relied upon

23

United States. The United States' Statement of Position shall be binding on

2
4

Defendant, unless Defendant files a motion for judicial review of the dispute

25

by the

in

accordance with the following Paragraph.

2
6
27
28

78. Defendant may seek judicial review ofthe dispute by filing with the
and serving on the United States, in accordance with Section XIX (Notice

Court

s) of this

42

1

Consent Decree, a motion requesting judicial resolution of the dispute. The motion

2

must be filed within 20 Days of receipt ofthe United States Statement of Position

3
4

pursuant to the preceding Paragraph. The motion shall contain a written statement of

5

Defendant's position on the matter in dispute, including any supporting factual data,

6

analysis, opinion, or documentation, and shall set forth the relief requested and any

7

schedule within which the dispute must be resolved for orderly implementation of the

8

Consent Decree.

9
10

79. The United States shall respond to Defendant's motion within the time

11

period allowed by the Local Rules of this Court. Defendant may file a reply

12

memorandum,to the extent permitted by the Local Rules.

13
14

80. Standard of Review.
a Disputes Concerning Matters Accorded Record Review. Except as otherwise
.

15
16

provided in this Consent Decree, in any dispute brought under Paragraph 76

17

pertaining to the adequacy or appropriateness of plans, procedures to implement

18

plans, schedules or any other items requiring approval by EPA under this Consent

19

Decree; the adequacy of the performance of work undertaken pursuant to this

2
0
21

Consent Decree; and all other disputes that are accorded review on the

22

administrative record under applicable principles of administrative law,

23

Defendant shall have the burden of demonstrating, based on the administrative

2
4

record, that the position of the United States is arbitrary and capricious or

25

otherwise not in accordance with law or the Consent Decree.

2
6
27
28

b. Other Disputes. Except as otherwise provided in this Consent Decree, in any
other dispute brought under Section XV (Dispute Resolution), Defendant shall
43

1

bear the burden of demonstrating that its position complies with this Consent

2

Decree.

3
81. The invocation of dispute resolution procedures under this Section shall
4
5

not, by itself, extend, postpone, or affect in any way any obligation of Defendant

6

under this Consent Decree, unless and until final resolution of the dispute so

7

Stipulated penalties with respect to the disputed matter shall continue to accrue from

8

the first Day of noncompliance, but payment shall be stayed pending resolution of the

9
10
11

dispute as provided in Paragraph 61. If Defendant does not prevail on the disputed
issue, stipulated penalties shall be assessed and paid as provided in Section XIII

12

(
Stipulated Penalties).

13

SECTION XVI: INFORMATION COLLECTION AND RETENTION

14

82. The United States and their representatives, including attorneys,

15
16

contractors, and consultants, shall have the right of entry into the facility covered by

17

this Consent Decree, at all reasonable times, upon presentation of credentials, to:

18

a. monitor the progress of activities required under this Consent Decree;

19

b. verify any data or information submitted to the United States in accordance with

2
0
the terms of this Consent Decree;
21
22

c. conduct performance testing;

23

d. obtain documentary evidence, including photographs and similar data; and

2
4

e. assess Defendant's compliance with this Consent Decree.

25

83. Upon request, Defendant shall provide U.S. EPA and its authorized

2
6
2
7

representatives copies of analytical data from Kiln performance testing performed by

28
44

1

Defendant. Upon request, U.S. EPA shall provide Defendant copies of analytical

2

f
rom Kiln performance testing performed by U.S. EPA.

3
4

84. Until five years after the termination of this Consent Decree, Defendant

5

shall retain, and shall instruct its Contractors and agents to preserve, all non-identical

6

copies of all documents, records, or other information (including documents, records,

7

or other information in electronic form)in its or its Contractors' or agents' possession

8

or control, or that come into its or its Contractors' or agents' possession or control,

r
~
10

and that relate in any manner to Defendant's performance of its obligations under this

11

Consent Decree. This information-retention requirement shall apply regardless of

12

any contrary corporate or institutional policies or procedures. At any time during this

13

information-retention period, upon request by the United States Defendant shall

14

provide copies of any documents, records, or other information required to be

15
16
17

maintained under this Paragraph.
85. Defendant may also assert that information required to be provided under

18

this Section is protected as Confidential Business Information("CBI") under 40

19

C.F.R. Part 2. As to any information that Defendant seeks to protect as CBI,

2
0
21
22

Defendant shall follow the procedures set forth in 40 C.F.R. Part 2.
86. This Consent Decree in no way limits or affects any right of entry and

23

inspection, or any right to obtain information, held by the United States pursuant to

2
4

applicable federal or state laws, regulations, or permits, nor does it limit or affect any

25

duty or obligation of Defendant to maintain documents, records, or other information

2
6
27

imposed by applicable federal or state laws, regulations, or permits.

28
45

1
2

SECTION XVII: EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS
87. Resolution of Liability. Entry of this Consent Decree shall resolve the

3
4

civil claims ofthe United States for the violations alleged in the Complaint filed in

5

this action and in the two Notices of Violation(NOVs)issued by the U.S. EPA dated

6

October 5, 2010 and March 12, 2014,through the date the Consent Decree is lodged

7

with the Court.

8

88. Notwithstanding the resolution of liability in Paragraph 87, nothing in thi;

9
10

Consent Decree precludes the United States from seeking from Defendant injunctive

11

relief, penalties, or other appropriate relief for violations by Defendant of the

12

regulatory requirements identified in Paragraph 87 resulting from (1)construction or

13

modification that commenced prior to the Date of Lodging of the Consent Decree, if

14

the resulting violations do not arise from the conduct specifically resolved by

15
16

Paragraph 87 or do not relate to NOX,or S02 or(2) any construction, reconstruction

17

or modification that commences after the Date of Lodging ofthe Consent Decree.

18

89. The United States reserves all legal and equitable remedies available to

19

enforce the provisions of this Consent Decree. This Consent Decree shall not be

2
0
21

construed to limit the rights ofthe United States to obtain penalties or injunctive

22

under the Act or implementing regulations, or under other federal or State laws,

23

regulations, or permit conditions, except as expressly specified in Paragraphs 87 and

24

63. The United States further reserves all legal and equitable remedies to address any

25

imminent and substantial endangerment to the public health or welfare or the

2
6
27
28

environment arising at, or posed by, the Defendant's Facility, whether related to the
violations addressed in this Consent Decree or otherwise.
4
6

1
2

90. In any subsequent administrative or judicial proceeding initiated by the
United States for injunctive relief, civil penalties, other appropriate relief relating to

3
4

the Facility or Defendant's violations, Defendant shall not assert, and may not

5

maintain, any defense or claim based upon the principles of waiver, res judicata,

6

collateral estoppel, issue preclusion, claim preclusion, claim-splitting, or other

7

defenses based upon any contention that the claims raised by the United States in the

8

subsequent proceeding were or should have been brought in the instant case, except

9
10
11
12
13
14

with respect to claims that have been specifically resolved pursuant to Paragraph 87
of this Consent Decree.
91. This Consent Decree is not a permit, or a modification of any permit,
under any federal, State, or local laws or regulations. Defendant is responsible for
achieving and maintaining complete compliance with all applicable federal, State,

15
16

local laws, regulations, and permits; and the Defendant's compliance with this

17

Consent Decree shall be no defense to any action commenced pursuant to any such

18

laws, regulations, or permits, except as set forth herein. The United States does not,

19

by its consent to the entry of this Consent Decree, warrant or aver in any manner that

2
0
21

Defendant's compliance with any aspect ofthis Consent Decree will result in

22

compliance with provisions ofthe Act, 42 U.S.C. §§ 7401 et seq., or with any other

23

provisions of federal, State, or local laws, regulations, or permits.

2
4
25

92. This Consent Decree does not limit or affect the rights of Defendant or of
the United States against any third parties, not party to this Consent Decree, nor does

2
6
27

it limit the rights ofthird parties, not party to this Consent Decree, against Defendant,

28

except as otherwise provided by law.
47

1

93. This Consent Decree shall not be construed to create rights in, or grant

2

cause of action to, any third party not party to this Consent Decree.

3
SECTION XVIII: COSTS
4
94. The Parties shall bear their own costs of this action, including attorneys'

5
6

f
ees, except that the United States shall be entitled to collect the costs (including

7

attorneys' fees) incurred in any action necessary to collect any portion ofthe civil

8

penalty or any stipulated penalties due but not paid by Defendant.

9
SECTION XIX: NOTICES

10

95. Unless otherwise specified herein, whenever notifications, submissions, or

11
12

communications are required by this Consent Decree, they shall be made in writing

13

and addressed as follows:

14

To U.S. EPA by USPS mail:

15
16
17
18
19
2
0

Phillip A. Brooks
Director, Air Enforcement Division
U.S. Environmental Protection Agency
MC 2242A
ATTN: Shaun Burke
1200 Pennsylvania Ave. NW
Washington, D.C. 20460
I
:~TI

21
22
23
2
4

Chief, Air and TRI Section
Enforcement Division
ATTN: Charles Aldred
U.S. Environmental Protection Agency, Region 9
75 Hawthorne Street
San Francisco, California 94105

25
2
6

Email notices should be sent to Aldred.Charles(a~epa.~ov .

27

To the United States (in addition to the U.S. EPA addresses above

28

EES Case Management Unit
Lf:3

1
2
3

Environment and Natural Resources Division
U.S. Department of Justice
Box 7611 Ben Franklin Station
Washington, D.C. 20044-7611
Re: DOJ No. 90-5-2-1-10458

4
To the United States by email:
5
6

eescopv.enrd(a,usdoj.

7

Include in the Subject line: Re: DJ# 90-5-2-1-10458 U.S. v. Nevada Cement Co., Inc.

8

To Nevada Cement Company

9

Joe Sells,
President,
Nevada Cement Company
I-80 at Exit 46
P.O. Box 840
Fernley, NV 89408-0840

10
11
12
13
14
15
16
17
18
19
2
0

Chuck Kellett
Senior Corporate Engineer
Eagle Materials
3811 Turtle Creek Blvd., Suite 1100
Dallas, TX 75219
James Graass
Executive Vice President, General Counsel, Eagle Materials
3811 Turtle Creek Blvd., Suite 1100
Dallas, TX 75219

96. Any Party may, by written notice to the other Party, change its designated

21
22

notice recipient or notice address provided above. In addition, any Party may submit

23

any written notification, submission, or communication under this Consent Decree by

24

electronic means.

25

97. Notices submitted pursuant to this Section shall be deemed submitted

2
6
upon mailing or emailing, unless otherwise provided in this Consent Decree or by
27
28 I

mutual agreement of the Parties in writing.
49

1

SECTION XX: EFFECTIVE DATE

2

98. The Effective Date ofthis Consent Decree shall be the date upon which

3
4

this Consent Decree is entered by the Court or a motion to enter the Consent Decree

5

is granted, whichever occurs first("Date of Entry") as recorded on the Court's

6

docket.

7

SECTION XXI: RETENTION OF JURISDICTION

8

99. The Court shall retain jurisdiction over this case until termination ofthis

9
10
11
12
13

Consent Decree, for the purpose of resolving disputes arising under this Consent
Decree or entering orders modifying this Consent Decree, pursuant to Sections XV
(
Dispute Resolution) and XXII (Modification), or effectuating or enforcing
compliance with the terms ofthis Consent Decree.

14
SECTION XXII: MODIFICATION
15
100.

16

The terms ofthis Consent Decree, including the Appendices, may

17

be modified only by a subsequent written agreement signed by the United States and

18

Defendant. With the exception of submittals under Appendices A and B that are

19

approved or conditionally approved pursuant to Section XI(Review and Approval of

2
0
21

Submittals), and which are incorporated by reference in this Consent Decree upon

22

such approval or conditional approval, where any other modification constitutes a

23

material change to this Consent Decree it shall be effective only upon approval by the

2
4

Court.

25

101.

Any disputes concerning modification of this Consent Decree shall

2
6
27
28

be resolved pursuant to Section XV (Dispute Resolution) of this Consent Decree,
provided, however, that, instead of the burden of proof provided by Paragraph 80, the
50

1

Party seeking the modification bears the burden of demonstrating that it is entitled to

2

the requested modification in accordance with Federal Rule of Civil Procedure 60(b).

3
SECTION XXIII: TERMINATION

4
5

102.

Complete Termination. After Defendant has complied with the

6

requirements of Section V(NOX Control Technology, Emission Limits, and

7

Monitoring Requirements), Section VI(S02 Emission Limits, and Monitoring

8

Requirements), and Section X (Permits) ofthis Consent Decree, including

9
10

Continuously Operating any Control Technology as required by this Consent Decree

11

f both Kilns, for a period of five years after establishment of the NOX Final
or

12

Emissions Limits pursuant to Section V(NOX Control Technology, Emission Limits,

13

and Monitoring Requirements), has complied with all other requirements of this

14
15

Consent Decree, and has paid the civil penalty and any accrued stipulated penalties a.

16

required by this Consent Decree, Defendant may serve upon the United States a

17

Request for Termination ofthe Consent Decree, stating that Defendant has satisfied

18

those requirements, together with all necessary supporting documentation. If the

19

United States agrees that the Decree as it relates to both Kilns may be terminated, the

2
0
21
22
23
24
25

Parties shall submit, for the Court's approval, a joint stipulation terminating those
provisions of the Decree.
103.

If the United States does not agree that the Decree as a whole, or a

it relates to an individual Kiln, may be terminated, Defendant may invoke Dispute
Resolution under Section XV (Dispute Resolution) of this Consent Decree. However

2
6
27

Defendant shall not seek Dispute Resolution of any dispute regarding termination

28 I

under this Section until sixty(60)Days after service of its Request for Termination.
51

1
2

SECTION XXIV: PUBLIC PARTICIPATION
104.

This Consent Decree shall be lodged with the Court for a period of

3
4

not less than 30 Days for public notice and comment in accordance with 28 C.F.R. §

5

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

6

comments regarding the Consent Decree disclose facts or considerations indicating

7

that the Consent Decree is inappropriate, improper, or inadequate. Defendant

8

consents to entry ofthis Consent Decree without further notice and agrees not to

9
10

withdraw from or oppose entry ofthis Consent Decree by the Court or to challenge

11

any provision of the Decree, unless the United States has notified Defendant in

12

writing that it no longer supports entry of the Consent Decree.

13

SECTION XXV: SIGNATORIES/SERVICE/ANSWER

14
105.
15

The Assistant Attorney General for the Environment and Natural

16

Resources Division of the Department of Justice and each undersigned representative

17

of Defendant certifies that he or she is fully authorized to enter into the terms and

18

conditions ofthis Consent Decree and to execute and legally bind the Party he or she

19

represents to this document.

2
0
106.
21

This Consent Decree may be signed in counterparts, and its

22

validity shall not be challenged on that basis. Defendant agrees to accept service of

23

process by mail with respect to all matters arising under or relating to this Consent

24

Decree and to waive the formal service requirements set forth in Rules 4 and 5 of

25

the

Federal Rules of Civil Procedure and any applicable Local Rules of this Court

2
6
27

including, but not limited to, service of a summons. Defendant shall identify, on the

28

attached signature page, the name, address and telephone number of an agent who
52

is

1
2

authorized to accept service of process by mail on behalf of Defendant with respect

to

all matters arising under or relating to this Consent Decree. All Parties agree that

3
4
5

Defendant need not file an answer or otherwise respond to the Complaint in this
action unless or until the Court expressly declines to enter this Consent Decree.
SECTION XXVI: INTEGRATION

6
7
8

107.

This Consent Decree constitutes the final, complete, and exclusive

agreement and understanding among the Parties with respect to the settlement

9
10

embodied in the Decree and supersedes all prior agreements and understandings,

11

whether oral or written, concerning the settlement embodied herein. No other

12

document, nor any representation, inducement, agreement, understanding or promise

13

constitutes any part ofthis Consent Decree or the settlement it represents, nor shall

14

it

be used in construing the terms of this Consent Decree.

15
SECTION XXVII: FINAL JUDGMENT

16
17

108.

Upon approval and entry ofthis Consent Decree by the Court, this

18

Consent Decree shall constitute a final judgment ofthe Court as to the United

19

and the Defendant.

States

2
0
SECTION XXVIII: APPENDICES

21
22
23
2
4
25

109.

The following Appendices are attached to and incorporated as part

of this Consent Decree:
"
Appendix A" contains the Test-and-Set Protocol for NOX Emission Limit require

ments

that apply to each Kiln under this Consent Decree subject to those requirements.

2
6
2
7

"
Appendix B" contains the Environmental Mitigation Projects Requirements.

28
53

1

All terms in the Appendices shall be construed in a manner consistent with this Consent

2 I Decree.
3
SECTION XXIX: HEADINGS
4
5

1 10.

Headings to the section and subsections of this Consent Decree are

6

provided for convenience and do not affect the meaning or interpretation ofthe

7

provisions of this Consent Decree.

8

Dated and entered this 4th
_Day of October , 2017

9
10
11
12

UNITED STATES DISTRICT COURT JUDGE
District of Nevada

13
14
15
16
17
18
19
2
0
21
22 I
23
2
4
25
2
6
27
28
54

1

Signature Page to the Consent Decree in United States v. Nevada Cement Company

2

FOR PLAINTIFF UNITED STATES OF AMERICA:

3
4
5
6
7

-~~.-- ~

Date:

BRUCE S. GELBER
Deputy Assistant Attorney General
Environment and Natural Resources
Division
United States Department of Justice

8
~
10
11
12
13
14
15
16

Date:
DAVID L. McILWAIN
Trial Attorney
Environmental Enforcement Section
Environment and Natural Resources Division
United States Department of Justice
P.O. Box 7611
Washington, D.C. 20044-7611
(
202)514-1544 (Tel.)
(
202)514-0097(Fax)
David.McIlwain(c~usdoj.gov

17
18
19
2
0
21
22
23
24
25
2
6
27
28
55

~~'~~ ~~~

1

Signature Page to the Consent Decree in United States v. Nevada Cement Company

2

FOR PLAINTIFF UNITED STATES OF AMERICA:

3
4

STEVEN W. MYHRE
Acting United States Attorney
District of Nevada

5
6
7
8
9
10
11

GREG ADDINGTON
Assistant United States Attorney
U.S. Attorney's Office
District of Nevada
100 West Liberty
Suite 600
Reno, Nevada 89501
(
775)784-5438
Greg Addin on(c ,usdoj,_gov
e

12
13
14
15
16
17
18
19
2
0
21
22
23
2
4
25
2
6
27
28
56

1

Signature Page to the Consent Decree in United States v Nevada Cement Compa►ry

2

FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:
~ ~-

4

6
7

/;
r
WRENCE E. STARFI~LD
Acting Assistant Administrator
Office of Enforcement and Compliance Asswance
United States Environmental Protection Agency

Date. ~l

S
9
10
ll
12

SUSAN SHIN
AN
Director, Office of Civil Enforcement
United States Environmental Protection Agency
--~

Date:

3/1 /

Date:

-~~~~u ~
l

Date:

~ o~ v~

;:

J

14
15
16

PHILLIP A,
OOKS
Director, Air Enforcement Division
Office of Enforcement and Compliance Assurance
United States Environmental Protection Agency

17
18
l9
2
0
21

''1~7i'a~~v~ -~ .X-- (.P~~

ROBERT G. KLEP~'~V
Attorney, Air Enforcement Division
Office of Enforcement and Compliance Assurance
United States Environmental Protection Agency

22
23
24
25
2
6
27
?g
57

1

Signature Page to the Consent Decree in United States a Nevada Cement Company

2

FOR THE U.S. ENVIRONMENTAL PROTECTION AGENCY
REGION 9:

3
4
5
6
7

Date: ,~ /R.~,. • 20/~
~Litid
ALEXIS STRAUSS
Acting Regional Administrator U.S. Environmental Protection Agency, Region 9
75 Hawthorne Street
San Francisco, California 94105

8
9
10
11

Date:

'~ / ~ v

~

IVAN LIEBEN
Attorney
Office of Regional Counsel

12
13
14

Date:
D
AVID KIM
"" "'
Attorney
Office of Regional Counsel

15
16
17
18
19
2
0
21
22
23
24
25
2
6
27
28
58

~ ~~

%

1

Signature Page to the Consent Decree in United States v Nevada Cement Company

2
3
4
5

FOR DEFENDANT NEVADA
CEMENT COMPANY:

~ ~ ~~
~~~

Date:

O)~,2 3/~~t ~'

Joseph P. Sells
6
President
7 Nevada Cement Company
I-80 at Exit 46. P.O. Box 840
8 Fernley, NV 89408-0840
9
10
11
12

The following is the name and address of Defendant Nevada Cement Company's agent for service
pursuant to Paragraph 106.
Joseph P. Sells
President
Nevada Cement Company
I-80 at Exit 46. P.O. Box 840
Fernley, NV 89408-Q840

13
14
IS
16
17
18
19
2
0
21
22
23
2
4
25
2 '~
6
2
7
28

5 `~
s~sss~o~.i

Case 3:17-cv-00302-MMD-WGC Document 2-1 Filed 05/12/17 Page 61 of 72

Appendix A to Consent Decree
2
3

Test-and-Set Protocol For NOX Emission Limit
I
.

Scope and Applicability

4
1.
5
6
7
8

2
.

9
10
11
12
13
14
15
16
17
18
19

Defendant shall comply with the requirements contained in this Appendix A
regarding installation and optimization of selective non-catalytic reduction
technology("SNCR")and, if necessary, Low NOX Burners("LNB")in
establishing 30-Day Rolling Average Emission Limits for NOX for Kiln 1 and
Kiln 2 at the Facility.
If Kiln operation is disrupted by unplanned outages, or excessive startups and
Shutdowns during the CEMS Installation and Operation Period, Baseline
Collection Period, SNCR Optimization Period, or SNCR Demonstration Period,
or if the Kiln temporarily ceases operation for business or technical reasons,
Defendant may request that EPA extend the CEMS Installation and Operation
Period, Baseline Collection Period, SNCR Optimization Period or SNCR
Demonstration Period pursuant to Section XI(Review and Approval of
Submittals). EPA shall grant or deny the request and shall state the amount of
time (if any)that the CEMS Installation and Operation Period, Baseline
Collection Period, SNCR Optimization Period, or SNCR Demonstration Period,
may be extended, which decision is subject to the Section XV (Dispute
Resolution) provisions ofthe Consent Decree. Defendant may not suspend the
CEMS Installation and Operation Period, Baseline Collection Period, SNCR
Optimization Period, or SNCR Demonstration Period until and unless EPA has
granted the request. Data gathered during periods of disruption may not be used
to determine any emission calculations or limitations unless both Defendant and
EPA agree to use the subject data. All collected data shall be included in each
applicable report.

II. GEMS Installation and Operation

2
0
No later than December 31, 2017, Defendant shall complete installation on Kiln
2 a NOX continuous emissions monitoring system ("GEMS")certified and
,
compliant with 40 C.F.R. Part 60. By February 1, 2018, Defendant shall
complete installation of a NOX GEMS on Kiln 1 that is certified and compliant
with 40 C.F.R. Part 60.

21
22
23
24
2
.
25
2
6

Defendant shall install an Ammonia GEMS on Kilns 1 and 2 in conjunction with
the installation of the NOX GEMS pursuant to Paragraph II.1 ofthis Appendix.
The Ammonia GEMS shall be operated whenever the NOX GEMS is used during
baseline testing and the test-and-set processes.

2
7
28
C
S17

1
2

III. Baseline Collection Period
1.

Defendant shall use CEMS to collect emissions data for NOX and Ammonia from
the Kilns. Defendant shall monitor and collect operational data as discussed in
Paragraph III.2.a ofthis Appendix.

2
.

The Baseline Collection Period shall begin within 30 days after installation of
Ammonia CEMS and certified NOX CEMS on each Kiln. The duration of the
Baseline Collection Period shall last for 120 Operating Days and be undertaken
during periods of Kiln Operation.

3
4
5
6
7
8
9
10

a.

The data collected during the Baseline Collection Period and through to
the end ofthe SNCR Demonstration Period or the LNB Demonstration
Period shall include the following data derived from available direct
monitoring or estimated from monitored or measured data:

11
i.

Kiln flue gas temperature at the inlet to the fabric filter or at the
Kiln stack (daily average);

ii.

Kiln production in Tons of clinker (daily total) and the method
used to calculate Kiln production;

iii.

Raw material feed in Tons (daily total);

iv.

Type and percentage of each raw material used (daily);

v.

NOX, 502, and Ammonia concentrations (dry basis) and mass rates
of NOX and SOz for Kilns 1 and 2;

vi.

Flue gas volumetric flow rate (daily average in dry acfm);

21

vii.

Feed burnability(C3S)(at least daily);

22

viii.

Temperatures in or near the burning zone(by infrared or optical
pyrometer);

ix.

Kiln system fuel feed rate and type of fuel by weight or heat input
rate (calculated to a daily average);

x.

Kiln amps(daily average);

xi.

Kiln back end Oz concentration (daily average);

12
13
14
15
16
17
18
19
2
0

23
24
25
2
6
27
28

61

1
xii.

Documentation of any Startup, Shutdown, or Malfunction events;
and

xiv.

3

Kiln system draft fan settings;

xiii.

2

An explanation of any gaps in the data or missing data.

4
5
6

b.

7
8
9

The Defendant shall submit a Baseline Collection Report for each Kiln
within 30 days after the deadline for the end ofthe Baseline Collection
Period on each Kiln. The Baseline Collection Report shall include the
data collected during the Baseline Collection Period and a calculation of
the Baseline NOX Emissions as defined in Paragraph 8.e of Section III
(
Definitions).

10
c.

Hours or days when there is no Kiln Operation shall be excluded from the
calculation in Paragraph III.2.b of Appendix A. However, Defendant shal
provide an explanation in the Baseline Collection Report for any data
excluded and provide the excluded data in the Baseline Collection Report.

d.

11

When submitted, Defendant shall provide the data to EPA in the Baseline
Collection Report in an electronic format, consistent with and able to be
manipulated by Microsoft Excel, and shall explain the reasons for any dat
not collected for each of the parameters.

12
13
14
15
16
17

IV. SNCR Design,Installation, Optimization, and Demonstration Requir
ements

18
1.

SNCR Design Report:

19
20

a.

Defendant shall submit to EPA for approval pursuant to Section XI
(
Review and Approval of Submittals) ofthe Consent Decree within 180
days from the Date of Entry, a design report for SNCR for Kiln 1 and Kiln
2("SNCR Design Report").

b.

Defendant shall design each SNCR system to be capable of delivering the
proposed reagent at a maximum rate of at least 1.4 mols of reagent to 1.0
mols of NOX (1.4:1 molar ratio) at all times based on Baseline NOx
Emissions collected pursuant to this Appendix A,and shall design each
system consistent with vendor recommendations for reducing NOx
emissions from each Kiln. The system shall be designed to inject
Ammonia into the Kiln gas stream based upon the Ammonia Slip
measured by the Ammonia CEMS.

21
22
23
24
25
2
6
27
28

62

c.

Defendant shall specify in the Design Report the reagents) selected, the
location selected for reagent injection, and other design parameters. The
design ofthe SNCR shall be based on maximum emission reduction
effectiveness, good engineering judgment, vendor standards, available
data, Kiln operability, and regulatory restrictions on reagent storage and
use. Subsequent to EPA's approval ofthe 30-Day Rolling Average
Emission Limits for NOX, Defendant shall have the right to use any type i
quantity ofreagent, provided it continues to meet the final emission limit
set using Ammonia.

d.

2

Any permit application that may be required under state or federal law for
the SNCR shall be consistent with the approved Design Report.

3
4
5
6
7

9
10
11

2.

SNCR Optimization Protocol:
a
.

Defendant shall submit to EPA for approval pursuant to Section XI
(
Review and Approval of Submittals) ofthe Consent Decree within 60
days of submittal of the SNCR Design Report a protocol (the "SNCR
Optimization Protocol")for optimizing each SNCR,including
optimization ofthe operational parameters resulting in the minimization
emissions of NOX to the greatest extent practicable without violating any
limits for other pollutants. If EPA's action taken pursuant to the Section
XI(Review and Approval of Submittals) provisions of this Consent
Decree is more than 90 Days after EPA's receipt of the SNCR
Optimization Protocol specified above, the applicable deadline to
commence optimization of the SNCR units, specified in Paragraph IV.3
this Appendix A, below, shall be extended by the same number of Days
that EPA's action exceeds the 90 days from the date Defendant submits
the SNCR Optimization Protocol.

b.

The SNCR Optimization Protocol shall describe procedures to be used
during the optimization period("SNCR Optimization Period") for each
SNCR to optimize the different Facility processes to minimize emissions
and adjust the Kiln and SNCR operating parameters, and shall include the
f
ollowing:

12
13
14
15
16
17
18
19
2
0
21
22
23
24
25
2
6
27
28

Measures to optimize the Facility's processes to reduce NOX
emissions in conjunction with SNCR (the "SNCR Optimization
Measures"), which shall include at a minimum,fuel fineness,
primary, secondary air rates injected into the Kiln, and adjustments
to the raw mix such as fineness and composition;
63

1
ii.

The method Defendant will use to calculate Ammonia Slip
according to Paragraph 8.d ofthis Consent Decree;

iii.

Measures to optimize the SNCR using the Ammonia Slip
measurement at each Kiln. These measures shall include
attempting to maintain an Ammonia Slip concentration of2 to 6
ppm on a daily average basis or alternative equivalent measures o:
using Ammonia Slip to control the SNCR operation rate; and

iv.

2

Measures to be taken if optimization of the SNCR causes
operational problems or excess emissions of a pollutant other than
NOX.

3
4
5
6
7
8
9
10

3.

11

SNCR Installation and Commencement of Operation:
a.

For Kilns 1 and 2, Defendant shall complete installation of SNCR no late:
than 365 days following submission ofthe Baseline Collection Report fog
each Kiln and commence the approved SNCR Optimization Protocol as o
the date of such installation.

b.

Defendant shall commence Continuous Operation of each SNCR in
accordance with the approved Optimization Protocol by adding reagent tc
the SNCR system.

12
13
14
15
16
17
18

4
.

SNCR Optimization Period:
a.

Defendant shall make its best efforts to establish the optimized steadystate operation of each SNCR as soon as practicable.

b.

For Kilns 1 and 2, optimization ofthe SNCR's and the Facility's pro<
shall be completed within 270 days following the deadline for SNCR
installation.

c.

For each Kiln, Defendant shall collect the data identified in Paragraph
III.2.a of Appendix A during the SNCR Optimization Period. When
submitted, Defendant shall provide the data to EPA in an electronic fo
consistent with and able to be manipulated by Microsoft Excel and ex~
the reasons for any data not collected.

d.

During each SNCR Optimization Period, Defendant shall operate each
Kiln in a manner necessary to produce a quality cement clinker product

19
2
0
21
22
23
2
4
25
2
6
27
28

.
~

1

and shall use good air pollution control practices for minimizing
at all times.

2
e.

3
4

For each Kiln, Defendant shall continue to collect the data specified in
Paragraph III.2.a of Appendix A after the SNCR Optimization Period.

5
5.

SNCR Optimization Report:

6
7

a
.

8
9

Within 60 Days following the end ofthe SNCR Optimization Period for
each Kiln, Defendant shall submit to EPA for approval pursuant to Secti
XI(Review and Approval of Submittals) ofthe Consent Decree an
optimization report("SNCR Optimization Report")for that Kiln. The
Optimization Report shall:

10
Demonstrate conformance with the SNCR Optimization Protocol
f the Kiln and its associated SNCR system;
or

11
12
ii.

Include all data collected during the SNCR Optimization Periods;

iii.

Propose, for approval, consistent with the SNCR Optimization
Protocol, the optimized operating parameters for the Kiln and the
SNCR system to be maintained during the SNCR Demonstration
Period; and

iv.

Propose steps to be taken to maintain an Ammonia Slip of betwe
2 and 6 ppm on a daily average basis or an alternative method of
using Ammonia Slip data to control the SNCR operation during f
Demonstration Period.

13
14
15
16
17
18
19
2
0

b.

In identifying the optimized state of each SNCR,including the injection
rates of reagents, and the operating parameters for the Facility processes,
Defendant may take into account energy, environmental, and economic
impacts and other costs.

c.

The SNCR Optimization Report may also include a discussion of any
problems encountered during the SNCR Optimization Period, and how
that problem may impact the potential emission reductions (including the
quantity of reagent slip at varying injection rates and/or the possible
observance of a detached plume above the Stack).

21
22
23
2
4
25
2
6
27
28

d.

4
5
6

6
.

In the event Defendant determines, prior to the expiration of the SNCR
Optimization Period, that its ability to optimize the Kiln and/or its SNCR
system will be affected by potential impairments to product quality, Kiln
system reliability or increased emissions of other pollutants, then
Defendant shall promptly advise EPA of this determination, and include
these considerations as part of its recommendation in its SNCR
Optimization Report.

SNCR Demonstration Period:

7
a.

The SNCR Demonstration Period for each Kiln shall commence within 7
days after Defendant's receipt ofthe final approval by EPA ofthe SNCR
Optimization Report for the relevant Kiln.
-

b.

The SNCR Demonstration Period shall last 270 Operating Days. During
the SNCR Demonstration Period, the Kiln shall be operated consistent
with the optimized operations ofthe Facility's processes and the SNCR
system as approved by EPA as part ofthe SNCR Optimization Report.

8
9
10
11
12
13

Subject to Section XV (Dispute Resolution) and through written notice to
Defendant, EPA may itself extend or reopen the SNCR Demonstration
Period based upon a determination that additional data is needed to be abl
to adequately establish an emission limitation.

14
15
16
d.
17
18
19
2
0
21
22

During the SNCR Demonstration Period for each Kiln, Defendant shall
collect the same data as required in Paragraph III.2.a of Appendix A.

23
24

If evidence arises during the SNCR Demonstration Period that product
quality, or Kiln system reliability is impaired, then Defendant may, upon
notice to, and approval by, EPA,temporarily modify Kiln operation and
the SNCR system to mitigate the impairment and request that EPA
suspend or extend the SNCR Demonstration Period for further technical
evaluation ofthe effects of process optimization on the Kiln or SNCR
system or, alternatively, permanently modify the manner of operation of
the Kiln or SNCR system to mitigate the effects.

7
.

SNCR Demonstration Report:

25
a.
2
6
27

Within 60 Days following completion of the SNCR Demonstration Period
f each Kiln and its associated SNCR,Defendant shall submit a
or
demonstration report to EPA("SNCR Demonstration Report")for that
Kiln. The SNCR Demonstration Report shall include all ofthe data

28
.
.

1

collected during the SNCR Demonstration Period and the proposed 30Day Rolling Average Emission Limit for NOX for each Kiln.

2
3

b.

4

For the purposes ofthe SNCR Demonstration Report:
i.

The 30-Day Rolling Average Emission Limit for NOX for each
Kiln shall be based upon an analysis of CEMS data and clinker
production data collected during the SNCR Demonstration Period
while the Facility's processes and SNCR system parameters were
optimized consistent with the SNCR Optimization Report,
Appendix A.IV.S ofthe Consent Decree.

ii.

Total pounds of NOX emitted during an individual Operating Day
will be calculated from collected CEMS data for that Operating
Day.

iii.

Hours or days when there is no Kiln Operation may be excluded
f
rom the calculation in Paragraph IV.7.c of Appendix A below.
However, Defendant shall provide an explanation in the SNCR
Demonstration Report for any data excluded and include the
excluded data in the Demonstration Report.

iv.

All NOX data when hourly Ammonia Slip is less than 2 ppm or
greater than 6 ppm may be used for daily NOX average calculation.
For any days where the daily Ammonia Slip averages less than 2
ppm or greater than 6 ppm, Defendant shall provide justification
f use of that data for use in determination of the 30-Day Rolling
or
Average Emission Limit for NOX for each Kiln. EPA reserves the
right to eliminate any data outside the parameters of the
Optimization Report from the fina130-Day Rolling Average
Emission Limit.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
2
0
21
22

c.

The fina130-Day Rolling Average Emission Limit for NOX for each Kiln
shall be calculated in accordance with the following formula:

23
2
4

X= µ + 1.65a where:

25

X = 30-Day Rolling Average Emission Limit(lbs/Ton of clinker)

2
6

µ =arithmetic mean of all of the 30-Day rolling averages

27

6 =standard deviation of all ofthe 30-Day rolling averages, as calculated
in the following manner:

28

67

2

1 N
~ = N~~x~_z~2

3

a =1

4
d.
5
6
7
8
9
10
11
12

EPA shall either approve the proposed 30-Day Rolling Average Emissior
Limits for NOX or establish an alternative 30-Day Rolling Average
Emission Limits. If EPA establishes an alternative 30-Day Rolling
Average Emission Limit for NOX for one or both of the Kilns, Defendant
will begin to meet the alternative 30-Day Rolling Average Emission Lim:
f NOX within 30 days of receiving notice ofthe limits from EPA, unless
or
Defendant invokes dispute resolution according to the Section XV
(
Dispute Resolution) provisions ofthe Consent Decree in which case the
f
inal NOX limit shall be the 30-Day Rolling Average agreed to by the
Parties at the conclusion of Informal Dispute Resolution. If Informal
Dispute Resolution does not resolve the dispute, Defendant shall comply
with its Proposed final NOX emissions limit until a final NOX Emissions
Limit is determined by the Court.

13
Subsequent to EPA's approval ofthe final 30-Day Rolling Average
Emission Limits for NOX, Defendant shall have the right to use any type c
quantity of reagent, provided that Defendant continues to comply with the
30-Day Rolling Average Emission Limit for NOX.

14
15
16
17

£

Supporting data required to be submitted under this Appendix A may
contain information relative to Kiln operation and production that
Defendant may consider to be proprietary. In such a situation, Defendant
may submit the information to EPA as CBI, subject to the provisions of 4
C.F.R. Part 2.

g.

If the fina130-Day Rolling Average Emission Limit for NOX is establishe
at 40% or more below Baseline NOX Emissions, no further action shall be
required under this Appendix A.

18
19
2
0
21
2
2
23
2
4
25
2
6
27
28

V LNB Installation and Optimization Requirements
.
LNB Vendor Selection Report

1

a.

2
3
4
5
6
7
8

Within 120 days after EPA's demand that Defendant install an LNB
pursuant to Paragraph 14 of this Consent Decree, Defendant shall submit
an LNB Design Report that explains the reasons Defendant has selected
the recommended vendors)and includes information from the
recommended vendors) on expected LNB design and associated NOX
reductions for both Kilns. Any vendors) and design chosen must design
the LNB with the aim of achieving the result of at least 15% NOX
reduction from the Kilns) post SNCR installation and operation. The
LNB Design Report will set forth the design specifications of the selected
LNB system and the operating parameters and equipment adjustments to
be made to the LNB system and, if necessary, the SNCR systems during
the LNB Optimization Period necessary to attain emission reductions.

9
2
.

LNB Installation and Commencement of Operations

10

a.

11
12

Within the time frame established pursuant to Paragraph 15, Defendant
shall complete installation of LNB on Kilns 1 and/or 2, as specified
(
"LNB Installation").

13
b.
14
15

3.

Defendant shall install the LNB system consistent with the selected vendor
design and operate each LNB in accordance with the LNB Design Report.

LNB Optimization Protocol

16
a
.

Consistent with the LNB Design Report, optimization ofthe LNBs on
Kiln 1 and Kiln 2 shall be completed no later than 4 months from LNB
Installation (the "LNB Optimization Period"). Defendant shall make its
best efforts to establish the optimized steady-state operation ofthe LNB as
soon as practicable.

b.

17

During the LNB Optimization Period, Defendant shall operate each Kiln
in a manner necessary to produce a quality cement clinker product and
shall use good air pollution control practices for minimizing emissions at
all times. The SNCR shall Continuously Operate during the LNB
Optimization Period.

18
19
2
0
21
22
23
24
4
.
25
2
6
27

LNB Data Collection and Submission
a.

The data collected during the LNB Optimization Period shall include the
data specified in Section III.2.a ofthis Appendix A.

28
~•

1

b.

The data collected during the LNB Optimization Period shall be submitted
to EPA within one month after the end of the Period as part of an LNB
Optimization Report according to the detail and format specified by this
Section. The LNB Optimization Report shall also describe how
Defendant met the installation and operating parameters and specifications
set forth in the LNB Design Report.

c.

When submitted, Defendant shall provide the data to EPA in an electronic
f
ormat, consistent with and able to be manipulated by Microsoft Excel,
and shall explain the reasons for any data not collected for each of the
parameters.

2
3
4
5
6
7
8
9

5.

10

LNB Demonstration Period
a.

11
12
13

6
.

To establish a revised final NOX 30-Day Rolling Average Limit based
upon operation ofthe LNB and the SNCR,Defendant shall duplicate and
comply with all applicable requirements of Section IV.6 of this Appendix
A,except the LNB Demonstration Period shall last 180 Operating Days.

LNB Demonstration Report

14
15
16
17
18
19
2
0

a.

Defendant shall submit a demonstration report to EPA for approval for
that Kiln within 60 Days following completion ofthe LNB Demonstration
Period and comply with all applicable requirements of Section IV.7 ofthis
Appendix A including proposing for approval under Section XI(Review
and Approval of Submittals), a revised final 30-Day Rolling Average
Emission Limit. Under no circumstance may this proposed revised final
limit be less stringent than the limit proposed and/or approved pursuant to
the SNCR Demonstration process. The SNCR shall Continuously Operate
during the LNB Demonstration Period.

21
22
23
2
4
25
2
6
27
28
7
0

2

D

6
7

Appendix B to Consent Decree:
Environmental Mitigation Projects
In compliance with and in addition to the requirements in Section VII (Other Injunctive Relied
ofthis Consent Decree, Defendant shall comply with the requirements of this Appendix B to
ensure that the benefits for the federally directed Environmental Mitigation Projects below are
achieved.
Clean Diesel Engine Replacement Proiects

8
9
10
11
12
13

1. Defendant shall replace an existing heavy-duty diesel truck with a new heavy-duty diesel
truck subject to the emission standards set forth at 40 C.F.R. § 86.007-11, at a cost of not
less than $120,000. Defendant shall also replace an existing rail car mover with a Tier 0
or Tier 1 engine with a new rail car mover with a Tier 4 engine subject to the emission
standards set forth at 40 C.F.R. Part 1039, at a cost of not less than $300,000.
2 The replaced engines will be located at Defendant's Fernley facility and related quarries,
.
and between those locations. Defendant shall complete the requirements within two(2)
years after the Effective Date.

14
15
16
17
18
19
2
0
21

3. Defendant shall provide a mechanism by which each replaced engine in Paragraph 1 of
this Appendix B above is properly disposed of, which must include destruction of the
engine block.
4 Nothing in this Consent Decree shall be interpreted to prohibit Defendant from
.
completing any of the Projects ahead of schedule.
5. In accordance with the requirements of Section XII(Reporting Requirements) of the
Consent Decree, within sixty(60)Days following the completion of each Project,
Defendant shall submit to U.S. EPA for approval a report that documents:
a. The date the replacement was completed;

22
23
2
4

b. The results of implementation of the replacement, including the estimated
emission reductions or other environmental benefits achieved; and
c. The cost incurred by Defendant in implementing the replacement.

25
26
27
28
71