ENVIRONMENTAL CONTROL, ) SOUTH CAROLINA ) DEPARTMENT OF HEALTH & ) ENVIRONMENTAL CONTROL and the ) CHATI’ANOOGA-HAMILTON COUNTY ) AIR POLLUTION CONTROL BOARD )

) Plaintiffs, )

) Civil Action No.

V. )

) Judge

INVISTA S.ã r.1. )

) Defendant. )

CONSENT DECREE
III. DEFINITIONS 4

IV. NONA1TA1NMENT NEW SOURCE REVIEW (NNSR) I PREVENTION OF

SIGNIFICANT DETERIORATION (PSD) REQUIREMENTS 11

A. ELECTION PROVISIONS AND iNTERIM CONTROLS 11

B. NO EMISSIONS CONTROLS AND LIMITS 12

C. SO2EMISSION REDUCTIONS AND CONTROLS 23

D. PARTICULATE MATFER EMISSIONS LIMIT 25

E. PROHIBITION ON NETFING CREDITS OR OFFSETS FROM REQUIRED

CONTROLS 25

V. NSPS FLARING DEVICES 27

VI. BENZENE WASTE NESHAP PROGRAM ENHANCEMENTS 27

VII. LEAK DETECTION AND REPAIR PROGRAM ENHANCEMENTS 35

VIII. RESOLUTION OF CLAIMS 43

TX. PAYMENT OF CIVIL PENALTIES 44

X. STIPULATED PENALTIES / VIOLATION OF CONSENT DECREE 45

XI. INVISTA’S CERTIFICATIONS 50

XII PERIODIC REPORTING 51

XIII. REVIEW AND APPROVAL OF SUBMITfALS 52

XIV. FORCE MAJEURE 52

XV. DISPUTE RESOLUTION 54

XVI. PERMITS 55
XX. EFFECTIVE DATE 61

XXI. RETENTION OF JURISDICTION 61

XXII. MODIFICATION 62

XXIII. PUBLIC COMMENT 62

XXIV. GENERAL PROVISIONS 62

XXV. COSTS OF SUIT 63

XXVI. ENTRY OF CONSENT DECREE 63

XXVII. TERMiNATION OF CONSENT DECREE 64

XXVIII. SIGNATORIES/SERVICE 65

XXIX. FINAL JUDGMENT 65

11
Appendix C: List of Violations Resolved From Tabs 3-16 ofINVISTA’s Corporate Audit

Agreement Final Report — Summary ofBenzeneiNESHAP and LDAR

Audit Findings

Appendix D: ENVISTA’s Corporate Audit Agreement Final Audit Report, Tabs 3-16

1H
amilton County Air Pollution Control Board (collectively 

Plaintiffs

) and INVISTA S.à r.l (“INVISTA”).

Whereas, Plaintiffs, by and through their undersigned counsel, have simultaneously filed Complaints and lodged this Consent Decree against INVISTA.

Whereas, INVISTA is

a privately-owned integrated fibers and polymers company registered as a foreign limited liability company in the State ofDelaware and headquartered in Wichita, Kansas.

Whereas, on April 30, 2004 (the “Closing Date”), E.I. du Pont de Nemours and Company and INVISTA finalized the sale ofthe DuPont Textiles

& Interiors assets to INVISTA S.à r.l. The transaction involved over forty sites worldwide. Twelve facilities were located in the United States, specifically at: Athens, GA; Calhoun, GA; Camden, SC; Chattanooga, TN; Dalton, GA; Kinston, NC; LaPorte, TX; Martinsville, VA; Orange, TX; Seaford, DE; Victoria, TX; and Waynesboro, VA (“Acquired Facilities”).

Whereas, EPA recognizes the critical role of environmental auditing in protecting human health and the environment by identif’ing, correcting, and ultimately preventing violations of environmental laws, particularly by responsible corporate citizens and new owners.

Whereas, as a result ofthe identification and disclosure of certain pre-Closing Date environmental noncompliance existing at some ofthe Acquired Facilities, INVISTA and EPA in July and August 2004 agreed that, pursuant to EPA’s Policy on Incentives for Self-Policing: Discovery, Disclosure, Correction, and Prevention of Violations, 65 Fed. Reg. 19618 (Apr. 11, 2000) (“EPA’s Audit Policy”), INVISTA would continue implementation of its Compliance Assurance Management System (“CAMS”) and conduct audits at the Acquired Facilities (hereinafter referred to as the “Corporate Audit Agreement”). In order to avail itself ofthe benefits afforded under EPA’s Audit Policy, INVISTA entered into the Corporate Audit Agreement and was required thereunder to complete environmental compliance audits in addition to continued implementation of its CAMS at the Acquired Facilities covering the following statutes and implementing regulations thereof, corresponding state or local laws and regulations, and any permits issued under these laws (hereinafter referred to collectively as “Environmental Requirements”): the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C.

§ 11001 to 11050; the Clean Water Act(CWA), 42 U.S.C.

§ 1251 to 1387; the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.

§ 6901 to 6992k; the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.

§ 136 to l36y; Section 103(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9603(a); the Safe Drinking Water Act (SDWA), 42 U.S.C.

§ 300fto 300j-26; and the Clean Air Act (CAA), 42 U.S.C.

§ 7401 to 7671q.

1
reviews ofINVISTA’s quarterly and final reports submitted pursuant to the Corporate Audit

Agreement, which detailed the auditors’ factual, technical, and legal findings. The Plaintiffs’

review also included site visits to three Acquired Facilities that were related to the findings of

violation and consideration of appropriate remedies, a series oftechnical meetings, legal and

technical correspondence regarding the findings of violations and consideration of appropriateremedies, supplemental information requests, and a review of information and site-specific data

submitted by INVISTA in response to Plaintiffs’ requests. After that review the Plaintiffs

determined, based on the foregoing, that violations ofEnvironmental Requirements had occurred

as set forth in Appendices A, B, and C.

Whereas, based upon the results ofthose audits, the United States alleges that violations

ofEnvironmental Requirements have taken place at INVISTA’s Acquired Facilities as set forth

in Appendices A, B, and C, and that INVISTA has certified that all violations in Appendix A

have been corrected.

Whereas, due to significant complexities requiring further investigation, analysis, and

potential corrective actions, INVISTA and EPA have agreed tO resolve RCRA and CWA

disclosures pertaining to the wastewater treatment and conveyance systems at INVISTA’s

LaPorte, Orange, and Victoria-facilities in a future agreement, ifnecessary, with the

understanding that this Consent Decree shall not prevent such disclosures from receiving

coverage under EPA’s Audit Policy.

Whereas, based on the representations by INVISTA, EPA has determined that the

violations as set forth in Appendices A, B, and C have met the conditions ofEPA’s Audit Policy

and are appropriate for resolution in accordance with the Policy.

Whereas, based upon the results ofthe audits, the United States, the State of Delaware

Department of Natural Resources and Environmental Control, the South Carolina Department of

Health & Environmental Control, and the Chattanooga-Hamilton County Air Pollution Control

Board allege that violations of certain Clean Air Act programs and their implementing federal,

state, and/or local regulations have been and/or are continuing to take place at certain ofINVISTA’s Acquired Facilities, including: the Nonattainment New Source Review and/or

Prevention of Significant Deterioration programs (NNSRIPSD), 42 U.S.C. § 7502, 7503, and

7475; the New Source Performance Standards (NSPS), 42 U.S.C. § 7411; National Emissions

Standards for Hazardous Air Pollutants (NESHAP), 42 U.S.C. § 7412; and Leak Detection and

Repair (LDAR) requirements 42 U.S.C. § 7411-7412.

Whereas, the Plaintiffs and INVISTA wish to resolve the violations ofEnvironmental

Requirements that INVISTA has already corrected or is required to correct under this Decree by

2q)
Whereas, the Plaintiffs and INVISTA agree, and this Court by entering this Consent Decree finds, that: (i) this Consent Decree has been negotiated by the Parties in good faith and at arm’s length; (ii) settlement ofthis matter will avoid prolonged and complicated litigation among the Parties; and (iii) this Consent Decree is fair, reasonable, in the public interest and consistent with the goals ofthe Environmental Requirements.

Whereas, INVISTA consents to the simultaneous filing ofthe complaints and lodging of this Consent Decree against INVISTA, without the admission ofliability or any adjudication on any issue offact or law.

THEREFORE, upon the consent and agreement ofthe Parties to this Consent Decree by their attorneys and/or authorized officials, the Parties agree as follows:

I. JURISDICTION AND VENUE

1. This Court shall have jurisdiction over this matter pursuant to 28 U.S.C.

§ 157, 1331, 1334, 1345, 1355 and 1367; Sections 113, 167 and 304(b)(l)(B) ofthe CAA, as amended, 42 U.S.C.

§ 7413, 7477 and 7604(bXl)(B); Sections 309 and 31 1(b)(7)(E) ofthe CWA, 33 U.S.C.

§ 1319, 1321(b)(7)(E); Section 325(c)(4) ofEPCRA, 42 U.S.C. § 11045; Section 109 of CERCLA, 42 U.S.C. § 9609; Sections 16 and 27(a) ofFIFRA, 7 U.S.C.

§ 136n and 136w-2(a); Sections 1414(b) and 1423(b) of the SDWA, 42 U.S.C.

§ 300g-3(b), 300h-2(b); and Sections 3008(a) and 9006(e) ofRCRA, 42 U.S.C.

§ 6928(a), 699 1(e).

2. Venue is proper in this judicial district under 28 U.S.C.

§ 139 1(b)-(c) and 1395(a); CAA § 113(b), 42 U.S.C. § 7413(b); FIFRA § 16, 7 U.S.C. § 136n; CWA

§ 309(b), 31 1(b)(7)(E), 33 U.S.C.

§ 13 19(b), 132 1(b)(7)(E); CERCLA § 109(c), 42 U.S.C. § 9609(c); EPCRA

§ 325(a)-(c), 42 U.S.C.

§ 11045(a)-(c); SDWA

§ 1414(b) and 1423(b), 42 U.S.C.

§ 300g-3(b), 300h-2(b); and RCRA

§ 3008(a), 9006,42 U.S.C.

§ 6928(a), 6991e(a).

3. Solely for the purposes ofthis Consent Decree and the underlying Complaints, INVISTA waives all objections and defenses that it may have to the Court’sjurisdiction over this action, to the Court’sjurisdiction over INVISTA, and to venue in this District. For purposes of the Complaint filed by the Plaintiffs in this matter and resolved by the Consent Decree, and for purposes ofentry and enforcement ofthis Consent Decree, INVISTA waives any defense or objection based on standing. This Consent Decree shall not create any rights in or grant any cause of action to any party other than the Plaintiffs and INVISTA. This Consent Decree does not limit or affect the rights ofINVISTA or of any ofthe Plaintiffs against third parties who are not a party to this Consent Decree, nor shall this Consent Decree be construed to create rights in, or grant any cause ofaction to, any third parties not a party to this Consent Decree. Except as

3
Resources and Environmental Control, the South Carolina Department of Health

&

Environmental Control, the Chattanooga-Hamilton County Air Pollution Control Board,INVISTA and INVISTA’s successors, transferees, grantees and assigns until the Consent Decree

is terminated pursuant to Section XXVII (Termination). No transfer of ownership or operation

of an Acquired Facility shaD relieve INVISTA ofits obligation to ensure that the terms ofthe

Decree are implemented, unless the requirements ofSection XIX (Sales or Transfers) are met.

5. INVISTA shall provide a copy ofthe applicable provisions ofthis Consent

Decree to all vendors, suppliers, consultants, contractors, agents and any other company or otherorganization performing any ofthe work described under Sections IV (NNSRJPSD),

V (NSPS),

VI (BWON), or VU (LDAR) ofthis Consent Decree. Notwithstanding any retention ofcontractors, subcontractors, or agents to perform any work required under this Consent Decree,

INVISTA shall be responsible for ensuring that all work is performed in accordance with the

requirements ofthis Consent Decree. In any action to enforce this Consent Decree, INVISTA

shall not assert as a defense the failure of its officers, directors, employees, servants, agents orcontractors to take actions necessary to comply with this Consent Decree, unless INVISTAestablishes that such failure resulted•from a Force Majeure event as defined in this Consent

Decree.

III. DEFINITIONS

6. Unless otherwise defined herein, terms used in this Consent Decree shall have the

meaning given to those terms in the CWA, EPCRA, CAA, FIFRA, CERCLA, and RCRA and

the regulations promulgated thereunder. Whenever the terms listed below are used in this

Consent Decree, the following definitions shall apply:

A.

A “24-Hour Rolling Average Emission Rate” shall be expressed as

Ib/MMBTU for each pollutant in question and calculated in accordance with the following

procedure: first, sum the total pounds ofthe pollutant in question emitted from the Unit duringthe most recent clock hour and the previous 23 clock hours; second, sum the total heat input to

the Unit in MMBTU during the most recent clock hour and the previous 23 clock hours; and

third, divide the total number of pounds ofthe pollutant emitted during the 24 hour period by the

total heat input during the 24 hour period.

A new 24-Hour Rolling Average Emission Rate shall

be calculated for each additional clock hour of operation.

B.

A “30-Day Rolling Average Emission Rate” shall be expressed as

Ib/MMBTU for each pollutant in question and calculated in accordance with the following

procedure: first, sum the total pounds ofthe pollutant in question emitted from the Unit during anOperating Day and the previous 29 Operating Days; second, sum the total heat input to the Unit

4
C. A 

24

Hour Rolling Average Removal Efficiency

means the.percent reduction in the mass of each pollutant in question achieved by a Unit’s pollution control device

over a 24-hour period. This percent reduction shall be calculated by subtracting the outlet 24- Hour Rolling Average Emission Rate from the inlet 24-Hour Rolling Average Emission Rate, dividing that difference by the inlet 24-Hour Rolling Average Emission Rate, and then multiplying by 100. A new 24-Hour Rolling Average Removal Efficiency shall be calculated for each new hour.

D. A”30-Day Rolling Tonnage” means the sum ofthe tons of each pollutant in question emitted from the Unit or Units in the most recent calendar day and the previous twenty-nine (29) calendar days. A 30-Day Rolling Tonnage shall be calculated for each new calendar day in accordance with the provisions ofthis Consent Dectee. The calculation of each 30-Day Rolling Tonnage shall include the pollutants emitted during periods of Startup, -Shutdown, and Malfunction within each calendar month.

E. A “12-Month Rolling Heat Input Percentage” means the sum ofthe total heat input from the fuel type in question in the most recent complete month and the previous

• eleven (11) months divided by the sum ofthe total heat input from all fuel types in the most

recent complete month and the previous eleven (11) months. - F. A “12-Month Rolling Tonnage” means the sum ofthe tons ofthe pollutant in question emitted from the Unit or Units in the most recent complete month and the previous eleven (11) months. A 12-Month Rolling Tonnage shall be calculated for each new complete calendar month in accordance with the provisions ofthis Consent Decree. The calculation of a 12-Month Rolling Tonnage shall include the pollutants emitted during periods of Startup, Shutdown, and Malfunction within each calendar month. Calculation ofthe first 12-Month

Rolling Tonnage shall commence 12 months after the applicable emission limit takes effect.

C. “Acquired Facilities” shall mean the INVISTA facilities located at:

Athens, GA; Calhoun, GA; Camden, SC; Chattanooga, TN; Dalton, GA; Kiriston, NC; LaPorte, TX; Martinsville, VA; Orange, TX; Seaford, DE; Victoria, TX; and Waynesboro, VA.

H. “ADN” shall mean adiponitrile.

I. “ADN Area” shall mean the area where adiponitrile is manufactured and does not include the HCN process or Promoter Area at the Orange Facility or the HCN process

area at Victoria.

5
the Corporate Audit Agreement between INVISTA and EPA.

L. “Athens Facility” means the iNVISTA facility located at 110 Voyles

Road, Athens, Georgia.

M. “Calhoun Facility” means the INVISTA facility located at 220 Boling

Industry Way, Calhoun, Georgia.

N. “Camden Facility” means the INVISTA facility located at 643 Highway 1

South, Lugoff, South Carolina.

0. “CEMS” or “Continuous Emission Monitoring System” means, for

obligations involving NO and SO2under this Consent Decree, the devices defined in 40 C.F.R.

§ 60 Appendix B and installed and maintained as required by 40 C.F.R. Part 60; for the Camden

Facility, which is subject to 40 C.F.R. Part 75, its CEMS may be installed, certified, and

maintained under 40 C.F.R. Part 75, provided that the Facility reports emissions required by this

Consent Decree pursuant to the provisions of 40 C.F.R. Part 60.

P. “CERCLA” shall mean the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601-9675, and its implementing

regulations.

Q. “CHCAPCB” means the Chattanooga-Hamilton County Air Pollution

Control Board and any successor departments or agencies.

R. “Chattanooga Facility” means the INVISTA facility located at 4501 N.

Access Road, Chattanooga, Tennessee.

S. “Clean Air Act” or “CAA” means the federal Clean Air Act, 42 U.S.C.

§7401-7671q, and its implementing regulations.

T. “Clean Water Act” or “CWA” means the Federal Water Pollution Control

Act, 33 U.S.C. § 125 1-1387, and its implementing regulations.

U. “Cold Startup Period” occurs whenever there has been no fire in the boiler

of a Unit (no combustion of any Fossil Fuel) for a period ofsix (6) hours or more, and means the

time between the beginning ofthe combustion of fuel in a Unit until 20 minutes after the SCR

reaches the vendor’s recommended design minimum temperature for injection of a reducing

agent, a period not to exceed four (4) hours.

6
maintenance practices for such equipment and the Unit so as to minimize emissions to the

greatest extent practicable.

X. “Dalton Facility” means the facility at 403 Holiday Ave., Dalton, Georgia.

Y. “Date of Lodging” shall mean the date the Consent Decree is lodged in the United States District Court.

Z. “Day” shall mean a calendar day. In computing any period oftime under this Consent Decree, where the last day would fall on a Saturday, Sunday, or a federal holiday, the period shall run until the close of business ofthe next business day.

AA. “DNREC” means the Delaware Department ofNatural Resources and Environmental Control and any successor departments or agencies.

BB. “Duct-injection” means a pollution control technology that employs injection ofselected sorbents into the flue gas to control SO2emissions.

CC. “Election Date” shall mean, for the Chattanooga Facility, the fourth anniversary ofthe Entry Date.

DD. “Emission Rate” means, in the case of an instantaneous emission, the

number of pounds of pollutant emitted per million BTU of heat input (IbIMMBTU) measured in accordance with this Consent Decree; in the case ofmass emissions, Emission Rate means the

total number oftons of pollutant emitted over a defined period oftime, measured in accordance with this Consent Decree.

EE. “Entry Date” or “Date of Entry” shall mean the date this Consent Decree

is signed by a United States District Court Judge.

FF. “Environmental Requirements” shall mean the following federal statutes and their implementing regulations: the Emergency Planning and Community Right-to-Know Act(EPCRA), 42 U.S.C. § 11001 to 1l050;theClean WaterAct(CWA),42 U.S.C. § 1251 to 1387; the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 to 6992k; the Clean Air Act (CAA), 42 U.S.C. § 7401 to 7671q; the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 to 9675; the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 to l36y; the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300fto 300j-26 and corresponding state and local laws and regulations and any permits issued under these laws.

7
II. “Flue Gas Desulfurization System,” or “FGD,” means a pollution control

device that employs flue gas desulfurization technology for the reduction ofsulfur dioxide.

JJ. “Fossil Fuel” shall have the same meaning as set forth in 40 C.F.R.

§ 60.41.

KK. “INVISTA” means ENVISTA S.à r.l.

LL. “Kinston Facility” means the former INVISTA facilities located at 4695

Highway 11 North, Kinston, North Carolina.

MM. “LaPorte Facility” means the INVISTA facility located at 12455 Strang

Road, LaPorte, Texas.

NN. “IbIMMBTIJ” means one pound of a pollutant per million British thermal

units of heat input.

00. “Malfunction” shall mean, as that term is defined under 40 C.F.R. § 60.2,

“any sudden, infrequent, and not reasonably preventable faiiureof air pollution control

equipment, process equipment, or a process to operate in a normal or usual manner. Failures that

are caused in part by poor maintenance or careless operations are not: malfunctions.”

PP. “Martinsville Facility” means the INVISTA facility located at 1008

DuPont Road, Martinsville, Virginia.

QQ. “Mobotec ROFA” means the pollution control device manufactured by

Mobotec USA that employs rotating opposed fired air technology to reduce N0 emissions.

RR. “Mobotec ROFA with Rotamix” means the pollution control device

manufactured by Mobotec USA that employs rotating opposed fired air technology and rotary

mixing ofchemicals to reduce N0 emissions.

SS. “MW” means a megawatt or one million Watts.

TT. “NAAQS” means national ambient air quality standards that are

promulgated pursuant to Section 109 ofthe Clean Air Act, 42 U.S.C. § 7409.

UU. “N0” means oxides of nitrogen, measured in accordance with the

provisions of this Consent Decree.

8
XX. “Operating Day” means any calendar day on which a Unit fires Fossil

Fuel.

YY. “Orange Facility” shall means the INVISTA licility located at 3055A FM 1006, Orange, Texas.

ZZ. “Over-fire Air” means a pollution control device to reduce NO formation

in a Unit boiler by directing a portion ofthe air to be combusted through ports abovethe level of the cyclones in the furnace.

AAA. “Ownership Interest” means all or part of INVISTA’s legal or equitable interest in any ofINVISTA’s Acquired Facilities.

BBB. “Parties” shall mean the United States, the State ofDelaware Department ofNatural Resources and Environmental Control, the South Carolina Department of Health and

Environmental Control, the Chattanooga-Hamilton County Air Pollution Control Board and

INVISTA.

CCC. “Permitting Authority” shall mean the following with respect to the following Acquired Facilities: Camden Facility - the SCDHEC; Chattanooga Facility - the

CHCAPCB; and Seaford Facility -State ofDelaware through the DNREC.

DDD. “Plaintiffs” means the United States ofAmerica, the State of Delaware

Department ofNatural Resources and Environmental Control, the South Carolina Department of Health and Environmental Control, and the Chattanooga-Hamilton County Air Pollution Control Board.

EEE. “PPM” means parts per million.

FFF. “Promoter Area” means the area where the catalyst for the ADN process is manufactured.

GGG. “PSD” means Prevention of Significant Deterioration within the meaning ofPart C of Subchapter I ofthe Clean Air Act, 42 U.S.C. § 7470 - 7492 and 40 C.F.R. Parts 51 and 52 and the applicable State Implementation Plans.

9
JJJ. “SCDHEC” means the South Carolina Department of Health and

Environmental Control and any successor departments or agencies.

KKK. “Seaford Facility” means INVISTA’s facility located at 25876 DuPont

Road, Seaford, Delaware.

LLL. “Selective Catalytic Reduction System” or “5CR” means a pollution

control device that employs selective catalytic reduction technology for the reduction of NO

emissions.

MMM. “Selective Non-Catalytic Reduction System” or “SNCR” means a

pollution control device for reducing N0 emissions through the use ofselective non—catalytic

reduction technology.

NNN. “Shutdown” means the cessation ofoperation of equipment for any

purpose.

000. “SO 2”means sulfur dioxide, measured in accordance with the provisions

ofthis Consent Decree.

PPP.. “Startup” means the setting into operation of the equipment for any

purpose.

QQQ. “State ofDelaware” or “Delaware” means the State ofDelaware

Department ofNatural Resources and Environmental Control.

RRR. “Title V Permit” means the permit required ofINVISTA’s major sources

under Subchapter V ofthe Clean Air Act; 42 U.S.C. § 766 1-7661e and the applicable StateImplementation Plans.

SSS. “Unit” shall mean a piece of equipment or an emissions source that is

subject to a requirement within this Consent Decree.

1TF. “United States” shall mean the United States ofAmerica, on behalf of

EPA.

UUU. “Vapor Combustion Unit” means equipment used for combustion or

destruction of organic vapors.

10
DuPont Boulevard, Waynesboro, Virginia.

IV. NONATTAINMENT NEW SOURCE REVIEW (NNSR I PREVENTION OF SIGNIFICANT DETERIORATION(PSD) REQUIREMENTS

Summary: This Consent Decree requires NNSR/PSD Controls at four Acquired Facilities: the Camden Facility, the Chattanooga Facility, the Seaford Facility and the Victoria Facility.

The Camden Facility has four coal-fired steam generating boilers, designated as Boilers 1, 2, 3 and 4, and four vaporizers. Camden Boilers 3 and 4 and the Camden Vaporizers have pollution control and/or emission reduction requirements under this Decree as described in Paragraphs 10, 26-27, 34 and 37 below.

The Chattanooga Facility has two natural gas-fired steam generating boilers (Boilers I and 2) capable of firing either natural gas or fuel oil, three coal-fired steam generating boilers (Boilers 3, 4, and 5), and six vaporizers. Chattanooga Boilers 3, 4, and 5 and the Chattanooga Vaporizers have pollution control and/or emission reduction requirements under this Decree as described in Paragraphs 7, 8, 11, 26, 28, 35 and 37 below.

The Seaford Facility has seven vaporizers and four steam-generating boilers, three of these boilers are capable of operating by burning either coal or fuel oil, which are designated as Boilers 1, 2, and 3, and one boiler is capable of operating by burning natural gas or fuel oil, designated as Boiler 4 (package boiler). Seaford Boilers 1, 2, and 3 and the Seaford Vaporizers have pollution control and/or emission reduction

requirements under this Decree as described in Paragraphs 9, 12-16, 26, 29-33, 36, 37, and 38 below.

The Victoria Facility has six boiler and industrial furnaces (“BIF boilers”) that bum liquid and gaseous streams, which are designated as Boilers 1, 2, 3, 4, 7, and 8. The Victoria Facility has one gas-fired co-generation unit designated as the Cogen Unit. Victoria Boilers 1, 2, 3, 4, 7, 8, the Cogen Unit, and any new boiler constructed at the Victoria Facility have pollution control and/or emission reduction requirements under this Decree as described in Paragraphs 17-26 below.

A. ELECTION PROVISIONS AND INTERIM CONTROLS

Chattanooga Facility Election Provision and Interim Controls

7. No later than four years after the Entry Date (“Election Date”), INVISTA shall

11
Chattanooga Boilers 3, 4, and 5 to achieve a 12-Month Rolling Tonnage of no greater than 292

tons NO and 870 tons SO2until it exercises its election under Paragraph 7.

Seaford Facility Election Provision

9. By no later than the Entry Date, iNVISTA shall select one ofthe following

emissions reduction options set forth below for the Seaford Facility, and shall notif’ the United

States and the State of Delaware in writing as to which option INVISTA has selected. After

providing the United States and the State ofDelaware with written notice of its selected

approach, iNVISTA shall implement the selected approach in compliance with the schedule set

forth in this Consent Decree.

a. .Seaford Option A - INVISTA shall install and Continuously Operate

pollution control technology on Boilers I and 3, and shall implement operational and fuel

limitations on Boiler 2, in compliance with Paragraphs 12, 14-16, 29-32 ofthis Consent

Decree. The 12-Month Rolling Tonnage from Seaford Boilers 1 and 3 under this Option shall

not exceed 598 tons ofNO and 1446 tons ofSO2.

b. Seaford Option B -By.no later than May 1, 2009, INVISTA shall cease

coal firing on Boilers 1 and 3, shall discontinue use ofBoiler 2, shall install and Continuously

Operate a natural gas-fired boiler with SCR technology, and shall operate Boilers 1 and/or 3 on

fuel oil only in compliance with Paragraphs 13 and 33 ofthis Consent Decree. The 12-Month

Rolling Tonnage from the natural gas-fired boiler under this Option, while burning natural gas

only, shall not exceed 12 tonsNO and I ton SO2.The 12-Month Rolling Tonnage from Boilers

1 and 3 (while burning either #6 residual oil containing no more than 1% sulfur on an annual

average basis or #2 distillate oil), and the new natural gas fired boiler (while burning #2 distillate

oil), shall not exceed 118 tons NO and 353 tons SO2.INVISTA shall. operate the SCR

technology according to the vendor recommendations regardless of fuel type burned.

B. NO EMISSIONS CONTROLS AND LIMITS

Camden Facility NO Emission Controls

10. By December 31, 2011, INVISTA shall convert Camden Boiler 3 to a natural gasfired boiler. 1NVISTA shall install and Continuously Operate SCR control technology on

Camden Boiler 3. INVISTA shall install and Continuously operate Mobotec ROFA with

Rotamix designed to achieve a removal efficiency for NO of at least sixty-five percent (65%) on

Camden Boiler 4. The 30-Day Rolling Tonnage of combined NO emissions from CamdenBoilers 3 and 4 shall not exceed 23 tons; and the 12-Month Rolling Tonnage of combined NO

12
Paragraph.

a. ENVISTA shall install and commence Continuous Operation of Mobotec ROFA and/or Over-fire Air designed to achieve a removal efficiency for NO of at least fifty percent (50%) on Chattanooga Boilers 3, 4, and 5. The 30-Day Rolling Tonnage from Chattanooga Boilers 3-5 combined under this Subparagraph shall not exceed 23 tons NOR; and the 12-Month Rolling Tonnage shall not exceed 194 tons NOR.

b. INVISTA shall convert one or more ofBoilers 3, 4, and 5 to burn exclusively natural gas. ENVISTA shall install and Continuously Operate ultra low-NO burner technology or an SCR on each Boiler converted to natural gas firing. For each Boiler 3, 4, or 5 that is not converted to natural gas firing, 1NVISTA shall install and commence Continuous Operation ofMobotec ROFA and/or Over-fire Air designed to achieve a removal efficiency for NO of at least fifty percent (50%), and shall limit NO emissions to a 30-Day Rolling Average Emissions Rate of no greater than 0.3 lb/MMBTU for each Boiler that has Mobotec ROFA installed. The 30-Day Rolling Tonnage ofNO emissions from Chattanooga Boilers 3-5 combined under this Subparagraph shall not exceed 20 tons; and the 12-Month Rolling Tonnage ofNO emission shall not exceed 160 tons NON.

Seaford Facility NQEmission Controls

DEFINITIONS: For purposes ofParagraphs 12-16 only, the terms “Startup” and “Shutdown” shall have the following meanings:

a. “Startup” means the one-hour period immediately following the beginning of combustIon offuel in a Unit, except during a Cold Startup Period.

b. “Shutdown” means the period of no more than one hour that immediately precedes the cessation offuel combustion in a Unit.

12. If[NVISTA elects Seaford Option A, then by no later than May 1, 2009, INVISTA shall install and Continuously Operate Mobotec ROFA with Rotamix that is designed to achieve a removal efficiency for NO of at least sixty-five percent (65%) on Seaford Boilers I and 3. The 12-Month Rolling Tonnage ofNO emissions under this option shall not exceed 272 tons for Boiler I and 326 tons for Boiler 3. The 24-Hour Rolling Average Emissions Rate for each Boiler shall be determined in compliance with the Optimization ofNO Controls under Paragraph 14-16 ofthis Consent Decree.

13. IfINVISTA elects Seaford Option B, then by no later than May 1, 2009, INVISTA shall install and Continuously Operate a natural gas fired boiler with SCR that

13
p

gas only. In determining the 3-hour rolling average basis, INVISTA shall

use CEMS in accordance with the applicable reference methods specified

in 40 C.F.R. § 60.13(h) to calculate the emissions for each 15-minute

interval within each clock hour, except during a Cold Startup Period or as

otherwise provided in this Paragraph;

b. Compliance with the 3-hour rolling average basis shall be demonstrated

by averaging all valid CEMS data points for the 3-hour interval readings

while burning natural gas only, except during a Cold Startup Period. A

minimum oftwo (2) 15-minute CEMS interval reading per clock hour is

required to determine compliance with the 3-hour rolling average basis.

All emissions recorded by CEMS shall be repnrted in 3-hour averages;

c. N0 emissions above 5 ppmvd during periods of Malfunction ofthe

natural gas-fired boiler or during Malfunction ofthe SCR will not be used

in determining compliance with the 3-hour rolling average basis

established pursuant to this Paragraph. For any event to be considered a

Malfunction, iNVISTA must satisf’ each ofthe following:

1. The Seaford facility was at the time ofthe event being operated in

a prudent and professional manner and in compliance with

generally accepted industry operations and maintenanceprocedures;

ii. The 3-hour average NO,, emissions above the 5 ppmvd basis did

not occur as a result ofimproperly designed equipment; lack of

preventative maintenance; careless or improper operation; or the

tampering with, interfering with, altering or adjusting any

equipment in any way that conceals or disguises the type and

quantity of emissions;

iii. During the period ofthe event INVISTA takes all reasonable steps

to minimize levels ofNO,, emissions from the gas-fired boiler and

takes all reasonable measures to minimize the duration ofsuch

event and to prevent the recurrence ofsuch event in the future;

iv. The operating conditions causing the event are recorded in the

Seaford Facility’s operating log within 24 hours ofthe event, and

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g

p

vi. INVISTA provides written notice ofthe Malfunction claim to

DNREC within two (2) business days ofthe Malfunction period containing: a description ofthe event, any steps taken to mitigate emissions, and any corrective actions taken; and

vii. Within thirty (30) calendar days ofthe event, INVISTA files a

report with DNREC and EPA that sets forth the information that

demonstrates the applicability of Subparagraphs 13.c.i — 13.c.vi to

the Malfunction event. This report shall also contain: (1) the cause

of, and INVISTA’s response to, the Malfunction; (2) whether

INVISTA has taken all reasonable and prudent steps to abide by the emissions limit conditions; (3) whether INVISTA has taken all

reasonable and prudent steps to minimize the emissions associated

with the Seaford Facility; (4) the degree to which JNVISTA has

reduced throughput to the boiler and the basis for such degree of

reduction; (5) the estimated emissions associated with a complete Shutdown ofthe boiler; (6) whether 1NVISTA had reviewed all

prior similar causes of Malfunctions arid had taken all reasonable

and prudent actions necessary to avoid future similar outages; and (7) the actual emissions during the period of Malfunction;

d. Commencing sixty (60) days from the installation ofthe natural gas-fired boiler, Subparagraph 13.c may apply to no more than ten (10) 3-hour

averages ofNO per calendar year, and it is INVISTA’s burden to

demonstrate to DNREC and EPA that it has met the conditions of

Subparagraphs I 3.c.i-vi. All NO emissions during these 3-hour periods covered by Subparagraph 13.c shall be included when calculating the 12- Month Rolling Tonnage ofNO emissions for the natural gas-fired boiler;

and

e. Nothing in this Paragraph shall be construed to relieve INVISTA of any obligation under any applicable law, regulation, or permit to report emissions during periods of Malfunction, or to document the occurrence,

and/or cause ofa Malfunction event.

15
a period of combustion tuning to optimize performance ofthe controls. This 

a

evaluation ofthe effect of operating parameters on NO emissions, the monitoring ofNO

emissions and the other relevant operating parameters to identif’ optimum operating parameters

that minimize NO,, emissions. Thereafter, INVISTA shall operate the NO,, controls at the Units

in accordance with those parameters to minimize NO emissions to the greatest extent possible.

INVISTA shall meet the performance test requirements set forth in Section XII, Paragraph 98 of

this Consent Decree during each 180 day Optimization Period.

15. Initial Emissions Reports: No later than 90 days after the completion of each

Optimization Period pursuant to Paragraph 14, INVISTA shall submit Initial Emissions Reports

to EPA and DNREC. Each report shall include a summary ofthe 24-Hour Rolling AverageEmission Rate for each respective Boiler, emission monitoring data during the Optimization

Period including relevant CEMS data, and the operating parameter limits that INVISTA

proposes to monitor for compliance demonstration. Each report shall also include INVISTA’s

proposed 24-Hour Rolling Average Emissions Rate (lb/MMBTU) for each Boiler, which shall be

set at a level at least as stringent as the designed to achieve removal efficiency for NO,, specified

in Paragraph 12 above.

16. Proposed and Final Emission Limits: DNREC shall set the final 24-Hour Rolling

Average Emission Rate (lb/MMBTU) for each Boiler and operating parameters based on

INVISTA’s Initial Emissions Reports under Paragraph 15, process variability, a reasonable

certainty of compliance and any other information pertinent to the specific emission unit.

INVISTA shall comply with the proposed emission limit for each respective Boiler immediately

following submission ofthe Initial Report for that Boiler, and shall comply with the final limit

no later than sixty (60) days following INVISTA’s receipt of notice from DNREC regarding the

final emission limit or upon issuance of an operating permit from DNREC, whichever is earlier.

Victoria NO Emission Controls

Boiler Controls

17. By no later than December 31, 2011, 1NVESTA shall route all Low Boiler Waste

streams at the Victoria Facility to Boilers 7 and 8 only and INVISTA shall install and commence

Continuous Operation ofSNCR technology, in compliance with Paragraph 21, on one of Boilers

7 or 8 by no later than December 31, 2011, and on the other by no later than December 31, 2012.

18. Victoria SCR Feasibility Pilot Study. INVISTA shall omplete a pilot study (the

“Victoria SCR Feasibility Pilot Study” or “Study”) using an in situ pilot-scale SCR slipstream

reactor designed to achieve a NO,, removal efficiency of at least ninety percent (90%) and that

shall be designed to simulate the treatment of exhaust gases generated during normal

16
potential second 

Gas Waste Phase,

if applicable. The first phase will be the 

Combined Waste Phase” and will evaluate the application ofSCR technology on a boiler firing combined liquid and gas wastes at the Victoria Facility. The first phase ofthe Study shall be complete by no later than December 31, 2011. A second phase, if applicable, will be the “Gas Waste Phase” and shall

evaluate the application of SCR technology on a boiler firing only gas at the Victoria Facility. The second phase ofthe Study, if applicable, shall be complete by rio later than December 31, 2012. Except as set forth in Subparagraph 18.h.ii(a) regarding the optional Gas Waste Phase of the Study, data collection during each phase shall be conducted for at least six months. The

Study shall take into account catalyst erosion and poisoning, with catalyst measurements taken regularly. Except as provided in Subparagraph 18.d, normal vendor recommended best

operating practices to maximize catalyst life for an SCR system shall be included in the Study.

b. The Victoria SCR Feasibility Pilot Study shall not be conducted on a

- boiler while combusting either Low Boiler Waste or the C12 WFE stream.

c. INVISTA shall submit its plan for each phase ofthe Study, as applicable, to EPA for approval no less than 60 days prior to commencement of each phase ofthe Study. Within 50 days ofreceipt ofthe plan for the Study, EPA shall notify INVISTA of whether it

approves or disapproves the plan. Approval ofthe plan shall not be unreasonably withheld.

d. During the Victoria SCR Feasibility Pilot Study, INVISTA shall use all reasonable efforts to operate the boiler and the pilot SCR in a manner that is representative of current and historic operating conditions (including Startup and Shutdown) and maximizing NO removal efficiency; provided, however, that INVISTA shall not be required to operate the boiler

or SCR in a manner that creates a safety risk or impairs boiler operation unless reasonable efforts

can be taken to compensate for such impairment. For purposes of this Paragraph, “reasonable efforts” do not include the installation and operation of pretreatment technologies, including, but not limited to, a baghouse control system, electrostatic precipitator, scrubber(s), or a sacrificial guard bed or vessel.

e. INVISTA shall provide updates oftest results to EPA every other month via electronic mail and shall provide any other information relevant tthe Study that EPA determines it needs upon request.

f. If at the completion ofthe Combined Waste Phase ofthe Victoria SCR

Feasibility Pilot Study, INVISTA believes that SCR will not be feasible, as defined by Subparagraph 1 8.i, to treat combined liquid/gas wastes at the Victoria Facility Boilers, INVISTA

may opt to commence the Gas Waste Phase ofthe Pilot Study, as set forth in Subparagraph 1 8.h.ii, in advance ofsubmitting its report for the Combined Waste Phase ofthe Study pursuant

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h. Based on the results ofthe Combined Waste Phase ofthe Victoria SCR

Feasibility Study, INVISTA shall include in its report for that phase a recommendation as to

whether the installation and operation of SCR technology to treat combined liquid/gas wastes on

the Victoria Boilers is feasible, as defined by Subparagraph 18.i.

i. In the event [NVISTA asserts that SCR is feasible, as defined in

Subparagraph I 8.i, and EPA agrees pursuant to Subparagraph 1 8.j,

ENVISTA shall propose for EPA approval a schedule to install and

Continuously Operate SCR technology designed to achieve a NO

removal efficiency of at least ninety percent (90%) on one of

Boilers 1-4 by December 31, 2013, and on each ofthe remaining

three Boilers by no later than December 31, 2016;

ii. IfINVISTA asserts in its report that SCR is not feasible, as defined

in Subparagraph 18.i, to treat combined liquid/gas wastes at the

Victoria Boilers, INVISTA may opt to conduct a Gas Waste Phase

ofthe Victoria SCR Feasibility Pilot Study.

(a) The Gas Waste Phase shall evaluate the application of SCR

technology on a gas-only waste boiler at the Victoria Facility, andshall be conducted in accordance with the requirements ofthis

Paragraph 18, with the exception that INVISTA may propose aStudy of less than six months if EPA agrees that there will be

sufficient data for it to properly evaluate the feasibility of SCR

pursuant to Subparagraphs 1 8.i and I 8.j;

(b) IfENVISTA elects not to conduct the Gas Waste Phase of

the Study or, if in the report submitted pursuant to Subparagraph

I 8.g for the Gas Waste Phase ofthe Study INVISTA asserts that

SCR on a gas-only waste boiler is feasible, as defined in

Subparagraph 1 8.i, and EPA agrees pursuant to Subparagraph 1 8.j,

INVISTA shall propose for EPA approval a schedule for the

conversion of one ofBoilers 1-4 to a gas-only waste boiler and theinstallation and Continuous Operation of SCR technology designed

to achieve a NO removal efficiency of at least ninety percent

(90%) on the gas-fired boiler by December 31, 2013, and SNCR

on the remaining boilers by no later than December 31, 2016;

(c) If, in the report submitted pursuant to Subparagraph l8.g

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iii. Further, ifINVISTA asserts that SCR is not feasible, as defined in

Subparagraph 18.i, to treat combined liquid/gas wastes at the

Victoria Boilers, and EPA agrees pursuant to Subparagraph 18.j,

INVISTA may, at any time after December 31, 2012, re-route the

Low Boiler Waste streams from Boiler(s) 7 and/or 8 to any

Boiler(s) 1-4 equipped with SNCR technology. When combusting

Low Boiler Waste in any boiler after I)ecember 31, 2012,

INVISTA shall, to the greatest extent practicable, operate theboiler in accordance with optimum operating parameters for

minimizing NO emissions that were identified during the

Optimization Period for Boilers 7 and/or 8 under Subparagraph

21.a.

“Feasibility” Determination. For purposes ofthis Paragraph, the feasibility of SCR shall be determined based only on the following criteria:

If the data collected during the Study indicate that the catalyst in a

fulL-scale SCR for the relevant liquid/gas or, as applicable, gasonly boiler would need to be replaced at a rate ofmore than once

per 12-month period in order to maintain a NO removal efficiency

greater than that of SNCR, then SCR is considered infeasible for

the purpose ofthis Paragraph 18;

ii. Ifthe data collected during the Study indicate that a full-scale SCR

for the relevant liquid/gas or, as applicable, gas-nly boiler would

require space velocity of less than 7,000 hf’, then SCR is

considered infeasible for the purpose ofthis Paragraph 18; or

iii. Ifthe data collected during the Study indicate that the amount of

catalyst required in a fuH-scale SCR for the relevant liquid/gas or,

as applicable, gas-only boiler would create a back pressure that

exceeds the current structurallmechanical limitations ofthe boiler,

then SCR is considered infeasible for the purpose ofthis Paragraph

18.

j. SCR Feasibility Determination and Installation Schedule.

Within 120 days of receipt of each report and schedule submitted

by INVISTA pursuant to Subparagraph 18.g or Subparagraph 18.h,

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18.h;

ii. EPA will not specif’ the installation ofSCR if EPA determines

that any one ofthe criteria listed in Subparagraph 1 &i

demonstrates that SCR is infeasible under Paragraph 18;

iii. IfEPA conditionally approves INVISTA’s proposed technology or

implementation schedule or ifEPA rejects INVISTA’s technology

or implementation schedule and specifies that SCR be

implemented in lieu ofSNCR (or ViCe versa) or that the technology

be implemented according to a different schedule, then within sixty

(60) days ofits receipt of s determination, iNVISTA shall

either submit a revised schedule for implementing the EPAspecified SCR or SNCR technology, submit a revised proposal that

responds to EPA’s conditional approval, or invOke the Dispute

Resolution provisions of Section XV.

k. If SCR is selected as the NO control technology, INVISTA shall comply

with the optimization protocol set forth for SCR in Paragraph 19, below. If SNCR is selected as

the NO,, control technology, INVISTA shall comply with the optimization protocol set forth forSNCR in Paragraph 21, below, and shall Continuously Operate the SNCR using best efforts to

maximize NO,, emissions reductions across all ofthe Victoria Boilers.

I. INVISTA shall comply with the implementation schedule approved by

EPA pursuant to thisParagraph 18.

19. Optimization of SCR Controls.

a. immediately after installation ofthe SCR technology under Paragraph 18,

as applicable, iNVISTA shall begin a 16-month period ofoptimizing the performance of eachSCR (the “SCR Optimization Period”) in a manner that optimizes the Unit consistent with

design requirements and the ammonia feedrate so as to achieve the optimal design efficiency of

the SCR technology. The SCR Optimization Period will include an evaluation ofthe effect of

operating parameters on NO emissions, the monitoring ofNO,, emissions and the other relevant

operating parameters to identify optimum operating parameters that minimize NO,, emissions.After the SCR Optimization Period, iNVISTA shall operate the SCR for that boiler in

accordance with the parameters that minimize NO,, emissions to the greatest extent possible

based on the evaluation conducted under this Subparagraph I 9.a.

b. Initial SCR Emissions Report: By no later than ninety (90) days after

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c. Proposed and Final Emission Limits: EPA shall set the final NO

emission limit and operating parameters based on INVISTA’s Initial SCR Emissions Report under Subparagraph 19.b, process variability, a reasonable certainty of compliance, and any other information pertinent to the specific emission Unit. INVISTA shall comply with the proposed NO emission limit immediately following submission ofthe Initial SCR Emissions

Report, and shall comply with the final NO limit no later than thirty (30) days following

]ENVISTA’s receipt of notice from EPA regarding the final NO emission limit or upon issuance of an operating permit from the Permitting Authority, whichever is earlier.

20. Except, as set forth below, if, based on operations during the SCR Optimization Period, INVISTA asserts and EPA agrees that the catalyst in the SCR technology at any boiler

needs to be replaced at a rate of once every six (6) to twelve (12) months in order to maintain a

NO removal efficiency greater than that of SNCR, iNVISTA may, after written approval from

EPA, which shall not be unreasonably withheld, elect to cease to operate the SCR technology and, upon Shutdown ofthe SCR technology, commence Continuous Operation of SNCR

technology. If, based on operations during the SCR Optimization Period, INVISTA asserts and

EPA agrees that the catalyst needs to be replaced at

a rate greater than once every six (6) months

in order to maintain

a NO removal efficiency greater than that of SNCR, INVISTA may, after written approval from EPA, which shall not be unreasonably withheld, elect to cease to operate the SCR technology and, within five months of Shutdown ofthe SCR technology, shall

commence Continuous Operation of SNCR technology. INVISTA shall submit its analysis and supporting documentation to EPA. The emissions limit for such an SNCR will be determined by the procedure outlined in Paragraph 21.

21. Optimization of SNCR Controls.

a. Immediately after the installation of SNCR on each boiler pursuant to Paragraph 17 and Paragraphs 18 or 20, if applicable, INVISTA shall begin

a 180-day period of optimizing the performance ofthe SNCR for that boiler (the “SNCR Optimization Period”). This will include an evaluation ofthe effect of operating parameters on NO emissions and the

monitoring ofNO emissions and the other relevant operating parameters to identiI’ optimum operating parameters that minimize NO emissions. Thereafter, INVISTA shall operate the SNCR at the boilers in accordance with those parameters to minimize: NO emissions to the

greatest extent possible based on the evaluation conducted under this Subparagraph 21 .a.

b. Initial SNCR Emissions Report: No later than ninety (90) days after the completion ofthe last SNCR Optimization Period pursuant to Subparagraph 21 .a, INVISTA

shall submit an emissions report to EPA. This report shall include a summary ofNO emission monitoring data for each Boiler’s SNCR Optimization Period including relevant CEMS data,

operating data on a daily or daily average basis, and the operating parameter limits that

21
applicable) based on INVISTA

s Initial SNCR Emissions Report under Subparagraph 21.b,

process variability, a reasonable certainty of compliance, and any other information pertinent to

the specific emission Unit. 1NVISTA shall comply with the proposed NO emission limits

submitted under Subparagraph 21.b immediately following submission ofthe Initial SNCR

Emissions Report, and shall comply with the final NO emissions limits no later than thirty (30)

days following INVISTA’s receipt ofnotice from EPA regarding the final NO emission limit or

upon issuance ofan operating permit from the Permitting Authority, whichever is earlier.

Cogen Unit and WFE Controls

22. By no later than December 31, 2011, INVISTA shall install and commence

Continuous Operation of SCR at the Victoria Cogen Unit designed to achieve a NO reduction

efficiency ofat least ninety percent (90%) and emissions shall not exceed 10 ppmvd NO based

on a 30-day rolling average or a 12-Month Rolling Tonnage of 85 tons NOR.

23. By no later than December 31, 2013, INVISTA shall elect one ofthe following

control options for the C12 WFE waste stream and shall notif’ the United States in writing as towhich option INVISTA has selected:

a. Option A: By no later than December 31, 2015, INVISTA shall route the

Cl 2 WFE waste stream to a location offsite from the Victoria Facility;

b. Option B: By no later than December 31, 2015, INVISTA shall route the

C12 WEE waste stream to a Thermal Oxidizer that is in compliance with all applicable federal

and state permitting requirements;

c. Option C: By no later than December 31, 2015, INVISTA shall route the

C12 WFE waste stream to a boiler equipped with SNCR control technology.

24. IfINVISTA elects Option C and, during the SNCR Optimization Period or at

any time thereafter for the boiler to which the C12 WFE stream is routed, INVISTA determinesthat combustion ofthe C12 WFE stream is causing or will likely cause the boiler to operate in

excess ofthe emissions limits applicable to the boiler, INVISTA may, after written notice toEPA, elect to implement Option A or Option B under Paragraph 23.

25. If TNVISTA elects to install a Thermal Oxidizer pursuant to Subparagraph 23.b

(Option B), INVISTA shall include the emissions from the Thermal Oxidizer in its emissionsreport and proposed emission limits requiied under Subparagraph 21 .b. Immediately uponinstallation ofthe Thermal Oxidizer, INVISTA shall operate the Thermal Oxidizer in a manner

that minimizes NO emissions. A Thermal Oxidizer installed pursuant to this Paragraph shall

be subject to the emissions limitations established under Subparagraph 21.c, above.

22
C. SO2EMISSION REDUCTIONS AND CONTROLS

Camden SO2 Emission Controls

27. By December 31, 2011, INVISTA shall convert and Continuously Operate Camden Boiler 3 as a natural gas-fired boiler. The 12-Month Rolling Tonnage for SO2 emissions from Camden Boiler 3 under this option shall not exceed 1 ton.

Chattanooga SO2Emission Controls

28. Pursuant to Paragraph 7 above, ifINVISTA elects to install and Continuously Operate emission controls on Chattanooga Boilers 3, 4, and 5, then eighteen months after the Election Date, INVISTA shall comply with the requirements of either option (a) or (b) as outlined below in this Paragraph:

a. INVISTA shall install and commence ContinuOus Operation of duct- injection technology on Chattanooga Boilers 4 and 5 designed to achieve a removal efficiency- for SO2of at least fifty percent (50%) combined with other control measures as may be necessary to meet the emissions requirements under this Subparagraph. The 30•Day Rolling Tonnage of SO2emissions from Chattanooga Boilers 3, 4, and 5 combined under this Subparagraph shall not exceed 60 tons; and the 12-Month Rolling Tonnage shall not exceed 530 tons SO2.INVISTA

shall operate the duct-injection technology installed under this Subparagraph in a manner that optimizes the technology consistent with design requirements to achieve the optimal design removal efficiency as identified in this Subparagraph;

b. INVISTA shall convert one or both Boilers 4 and 5 to burn exclusively natural gas. For the Boiler 4 or 5 that is not converted to natural gas firing, INVISTA shall install and commence Continuous Operation of duct injection technology designed to achieve a removal efficiency for SO2of at least fifty percent (50%) combined with other control measures

that may be necessary to meet the emissions requirements under this Subparagraph. The 30-Day Rolling Tonnage of SO2emissions from Chattanooga Boilers 3-5 combined under this

Subparagraph shall not exceed 45 tons; and the 12-Month Rolling Tonnage shall not exceed 445

tons SO2.INVISTA shall operate the duct-injection technology installed under this

Subparagraph in a manner that optimizes the technology consistent with design requirements to achieve the optimal design removal efficiency as identified in this Subparagraph.

Seaford SOEmission Controls

DEFINITIONS: For purposes ofParagraphs 29-33 only, the terms “Startup” and “Shutdown”

23
29. IfINVISTA elects Seaford Option A as described in Paragraph 9, then by

January 1, 2010, INVISTA shall install and Continuously Operate a dry Flue GasDesuiflirization (FGD) System on Seaford Boiler 1 designed to achieve a 24-Hour Rolling

Average Removal Efficiency for SO2of at least ninety percent (90%), except during Startup and

Shutdown. The 12-Month Rolling Tonnage for SO2emissions shall not exceed 311 tons.

30. IfINVISTA elects Seaford Option A as described in Paragraph 9, then by

January 1, 2010, INVISTA shall install and Continuously Operate duct-injection technology on

Seaford Boiler 3 designed to achieve a 24-Hour Rolling Average Removal Efficiency for SO2of

at least fifty percent (50%), except during Startup and Shutdown. The 12-Month Rolling

Tonnage of SO2emissions shall not exceed 1135 tons.

Seaford Facility Fuel and Operating Limitations

31. IfINVISTA elects Seaford Option A as described in Paragraph 9, then by no

later than May 1, 2009, INVISTA shall only burn either #6 residual oil or #2 distillate fuel oil

in Seaford Boiler 2. IfINVISTA bums #6 residual oil in Boiler 2, that residual oil shall

contain no greater than 1% sulfur based on a 12-month rolling average.

32. IfINVISTA elects Seaford Option A as described in Paragraph 9, then by no

later than May 1, 2009, INVISTA shall only use Seaford Boiler 2 as a backup Boiler during

Start-up, Shutdown, Malfunction, or maintenance ofBoilers I or 3 which necessitates additional

heat output from Boiler 2 to maintain normal operations.

33. IfINVISTA elects Seaford Option B, as described in Paragraph 9, then by no

later than May 1, 2009, INVISTA shall be authorized to burn either #6 residual oil (with a sulfur

content of no greater than 1% based on a 12-month rolling average) or #2 distillate oil only in

Boilers 1 and 3, and only #2 distillate oil in the new natural gas-fired boiler for a combined

period oftime not to exceed 2,880 hours based on a 12-month rolling summation oftotal hours

and subject further to the 12-Month Rolling Tonnages set forth in Subparagraph 9.b, above.

Notwithstanding the foregoing, in the event 1NVISTA is unable to install and operate Option B

by May 1, 2009, due to delay in construction and/or permitting, INVI STA shall be authorized to

burn either #6 residual oil or #2 distillate oil only in any ofthe existing Boilers for a period not

to exceed two (2) months after May 1, 2009, without violation or penalty ofany term or

condition ofthis Consent Decree, including but not limited to the provision on “installation andoperation” of controls (Paragraphs 9 and 13, herein). The number of hours of oil burning during

this 2-month period shall be deducted from INVISTA’s initial allocation of2,880 hours during

the first 12 months after May 1, 2009. Compliance with the 12-month rolling summation of

2,880 hours of oil-burning shall be determined by summing the number of hours plus any - 24
gas, calculated as a 12-Month Rolling Heat Input Percentage calculated from the total heat input to the vaporizers by each fuel type. The fuel oil used in the Camden Vaporizers 1-4 shall not exceed a 1% sulfur content based on a 12-month rolling average.

35. Chattanooga Facility -Beginning on the Entry Date, the Vaporizers 1-6 at the Chattanooga Facility shall burn no less than 95% natural gas and no more than 5% fuel oil as a 12-Month Rolling Heat Input Percentage calculated from the total heat input to the vaporizers by each fuel type. The fuel used in the Chattanooga Vaporizers 1-6 shall not exceed a 0.3% sulfur

content based on a 12-month rolling average.

36. Seaford Facility -Beginning on the Entry Date, the Vaporizers at the Seaford Facility shall burn #2 distillate or #6 residual fuel oil with a sulfur content no greater than 1% sulfur based on a 12-month rolling average.

General SO, Provisions

37. All Units, except the Vaporizers, Units firing natural gas, and Seaford Units firing only fuel oil as described under Paragraph 33, that have SO2emissions limits under this Consent

Decree shall be equipped with CEMS to measure SO2emissions no later than the date the Unit

has such requirements under this Consent Decree, with the exception that Units at Chattanooga shall be equipped with CEMS by no later than June 30, 2010.

I). PARTICULATE MATTER EMISSIONS LIMIT

Seaford Facility PM Limit

38. IfINVISTA selects Option A as described in Paragraph 9, then by no later than May 1, 2009, INVISTA shall: (a) comply with a final PM emission limit of 0.015 lbslMMBtu at

Boilers 1 and 3; and (b) Boilers 1 and 3 shall be equipped with CEMS to measure PM emissions.

E.. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED

CONTROLS

39. Emission reductions generated by INV[STA to comply with the requirements of this Consent Decree shall not be considered as a creditable contemporaneous emission decrease for the purpose of obtaining a netting credit under the Clean Air Act’s Nonattainment NSR and

PSD programs.

40. The limitations on the generation and use ofnetting credits or offsets set forth in

25
considered by DNREC, SCDHEC, CHCAPCB, or EPA as creditable contemporaneous emissiondecreases for the purpose of attainment demonstrations submitted pursuant to section 110 ofthe

Act, 42 U.S.C. § 7410, or in determining impacts on NAAQS, PSD increment, or air qualityrelated values, including visibility, in a Class I area.

Exception to General Prohibition for Seaford Option B

41. Exception to the General Prohibition against the Use or Generation ofConsent

Decree Emissions Reductions for Seaford Option B.

a. Notwithstanding the general prohibition set forth in Paragraph 39,

iNVISTA may use 50 tons per year ofNO and 50 tons per year ofSO2from the emissions

reductions required by Paragraphs 13 and 33 as credits or offsets in any PSD, major

nonattainment and/or minor NSR permit or permit proceeding occurring after the Date of

Lodging ofthe Consent Decree, provided that INVISTA remains in compliance with the

requirements ofthis Consent Decree. Utilization ofthis exception is subject to the following

conditions:

I. This exception is only available in the event INVISTA chooses to

implement Seaford Option B as set forth in Paragraph 9 above;

ii. Under no circumstances shall 1NVISTA use emissions reductions

required by this Consent Decree for netting and/or offsets prior to

the time that actual emissions reductions have occurred;

iii. This exception may be used only at the Seaford Facility;

iv. The emissions requirements ofthis Consent Decree are for

purposes ofthis Consent Decree only and neither [NVISTA, norany other entity, may use emissions reductions required by this

Consent Decree for any purpose, including in any subsequent

permitting or enforcement proceeding, except as provided herein;

and

V. INVISTA still shall be subject to ali federal and state regulations

applicable to the PSD, major non-attainment and/or minor NSR

permitting process.

26
g

is constructed, INVISTA shall implement good air pollution control practices to minimize

emissions from the flare.

VI. BENZENE WASTE NESHAP PROGRAM ENHANCEMENTS

43. Summary: As ofthe Date of Entry, INVISTA’s Victoria Facility and Orange Facility have total annual benzene (TAB) amounts above 10 Mg. Upon the Date of Entry, the Victoria and Orange Facilities shall utilize the exemptions set forth iii 40 C.F.R. § 61 .342(c)(2) and (c)(3)(ii) (hereinafter referred to as the “2 Mg Compliance Option”) to comply with 40

C.F.R. § 61.342(c).

44. INVISTA shall undertake the measures set forth in this Subsection VI to ensure

continuing compliance with 40 C.F.R. Part 61, Subpart FF (“Benzene Waste NESHAP,”

“BWON,” or Subpart FF) and to minimize or eliminate fügitiye benzene emissions at the

Victoria and Orange Facilities. By no later than December 31, 2010, INVISTA shall elect for

each ofthe Victoria and Orange Facilities one ofthe following benzenó emission reduction

Options, and shall notify the United States in writing as to which option INVISTA has selectedfor each Facility. After providing the United States with written notiDeofits election, INVISTA

shall implement the selected option in compliance with the schedule set forth in this Consent

Decree.

a. Option A - INVISTA shall install and fully implement a new ADN

production technology that is expected to eliminate benzene from the ADN production process

as follows: (i) for the first (or only, as applicable) Facility for which this option is elected, by no later than December 31, 2013, and (ii) for the second, if applicable, Facility for which this option is elected, by no later than December31, 2016. IfINVISTA elects to implement this new technology pursuant to this Option A at the Victoria and/or Orange Facility(ies), the other

requirements ofthis Section VI and their corresponding stipulated peiialties provisions ofthis

Consent Decree (Subparagraphs 89.i — 89.t) shall not apply to the reLevant Facility(ies). Until the

new technology referenced above is filly implemented under this Option, INVISTA will

continue to comply with the 2 Mg Compliance Option.

b. Option B - INVISTA shall continue to comply with the 2 Mg Compliance Option, and shall undertake the measures set forth in this Section VI to ensure continuing

compliance with the Benzene Waste NESHAP, to further address the findings in Appendix C, and to minimize or eliminate fugitive benzene emissions at the relevant Facility.

Orange Facility -Actions to Correct Non-Compliance

45. By no later than December31, 2012, INVISTA shall Continuously Operate a

27
g 

g

, 

g

y 

backup to the existing ADN operating flare or other vapor combustion device. INVISTA shall

install at least one knock-out drum for all the common vent headers for the Vapor Combustion

Units and operating flares within the ADN Area and Promoter Area at the Orange Facility.

47. By no later than December 31, 2012, INVISTA shall segregate the storm water

streams from the process water waste streams in the ADN Area at the Orange Facility.

iNVISTA shall comply with the requirements of40 C.F.R. § 6 1.346 for all regulatedcomponents ofthe process wastewater drain system.

Victoria Facility -Actions to Correct Non-Compliance

48. Within 180 days after Entry Date, INVISTA shall Continuously Operate the

benzene flasher, Nitrile Stripper Column, or other benzene treatment process at the Victoria

Facility to serve as a “benzene treatment process,” for all regulated aqueous waste streams in the

ADN area in compliance with 40 C.F.R. § 61.348. The following technologies are acceptable

under this Paragraph: thermal oxidizer, hydrolysis column, and benzene stripper. INVISTA may

install a benzene treatment process other than those specified in this Paragraph once INVISTA

receives the United States’ approval in writing prior to the time a contract for its purchase is

executed. - 49. By no later than December 31, 2012, INVISTA shall install and Continuously

Operate one or more vapor combustion device(s) that achieve(s) a 99% benzene destruction

efficiency with backup to a flare to control emissions from all continuous process vents,

excluding the HCN offgas, from the 311 and ADN Areas at the Victoria Facility that are

currently controlled by the ADN operating or the 101 flares. INVISTA shall install at least one

knock-out drum for all the commàn vent headers for the Vapor Combustion Units and operatingflares within the ADN Area at the Victoria Facility.

50. By no later than December 31, 2012, INVISTA shall segregate all stormwater

streams from the process water streams in the ADN area ofthe Victoria Facility. INVISTA shall

comply with the requirements of40 C.F.R. § 61.346 for all regulated components ofthe process

wastewater drain system.

51. Testing, Monitoring, and Reporting Requirements for New and Existing

Installations. 11’JVISTA shall comply with all applicable Subpart FF testing, monitoring, and

reporting requirements set forth in Benzene Waste NESHAP regulations for any new

installations or existing installations improved pursuant to Paragraphs 45, 46, 48, and 49.

INVISTA shall conduct a test of each such installation following entry ofthis Decree. INVISTA

shall submit these test results to EPA demonstrating that each installation meets the applicable

28
53. Carbon Canisters. INVISTA shall continue to implement the requirements ofthis Paragraph at all locations at the Victoria and Orange Facilities where a carbon canister(s) is

utilized as a control device under the Benzene Waste NESHAP.

a. Within ninety (90) days after the Entry Date, INVISTA shall insure that

installation of primary and secondary carbon canisters has occurred at locations currently

utilizing single canisters and shall operate them in series. For any permanent unit, within thirty (30) days following completion ofthe installation of dual canisters, INVISTA shall submit a

report to EPA certifying the completion ofthe installation. The report shall include: (i) a list of

all locations at the Victoria and Orange Facilities where carbon canister systems are used as a

control device under Subpart FF; (ii) an indication, for each location, whether there was a pre existing secondary carbon canister or whether a secondary carbon canister was installed under

this Paragraph; (iii) the installation date of each such secondary canister installed under this

Paragraph and the date that each secondary canister was put into operation; and (iv) an

-indication, for each location, whether volatile organic compounds (“VOC”) or benzene will be

used to monitor for breakthrough under and as required by Subparagraph 53.d.

b. Except as expressly permitted under Subparagraph 53.f, INVISTA shall

not use single carbon canisters for any new units or installations at the Victoria or Orange

Facilities.

c. For dual carbon canister systems, “breakthrough” between the primary and secondary canister is defined as any reading equal to or greater than 5 ppm benzene.

d. INVISTA shall continue to monitor for breakthrough between the primary and secondary carbon canisters weekly, or in accordance with the frequency specified in 40

C.F.R. § 6 1.354(d), whichever is more frequent. This requirement shall commence: (1) upon the Entry Date where dual carbon canisters currently are in service; and (ii) no later than seven days after installation of a new dual carbon canister system.

e. INVISTA shall continue to replace the original primary carbon canister (or

route the flow to an appropriate alternative control device) immediately when breakthrough is detected between the primary and secondary canister. The original secondary carbon canister (Or

a fresh canister) will become the new primary carbon canister and a fresh carbon canister will

become the secondary canister. For purposes of this Subparagraph, “immediately” shall mean

within twenty-four (24) hours ofthe detection of a breakthrough for canisters greater than 55

gallons. In lieu ofreplacing the primary canister immediately, INVISTA may elect to monitor

the outlet ofthe secondary canister beginning on the day the breakthrough between the primary

29
temporary storage tanks or as temporary control devices. For canisters 55 galLons or less

operated as part of a single canister system, “breakthrough” is defined for purposes ofthis

Consent Decree as any reading of VOC above background or benzene above 1 ppm (whichever

is monitored). For canisters greater than 55 gallons, “breakthrough” is defined for purposes of

this Consent Decree as any reading of benzene above 10 ppm. Beginning no later than the EntryDate, TNVISTA shall monitor for breakthrough from a single carbon canister system once every

calendar day that there is actual flow to the carbon Canister. INVISTA shall replace the single

carbon canister with a fresh carbon canister, discontinue flow, or route the stream to an alternate,

appropriate device immediately when breakthrough is detected. For purposes ofthis

Subparagraph, “immediately” shall mean within twenty-four (24) hours. If a single canister has

been found to exceed the applicable breakthrough concentration, ficiw must be discontinued to

that canister immediately. Such a spent canister may not be placed back into Benzene Waste

NESHAP vapor control service until it has been appropriately regenerated.

g. INVISTA shall continue to maintain a readily-available supply offresh

carbon canisters at all times for the Victoria and Orange Facilities where canisters are used as a

control device or shall otherwise ensure that such canisters are readily, available to implement the

-• requirements ofthis Paragraph 53. For purposes ofthis Paragraph, readily-available shall mean

that 1NVISTA shall maintain a supply of fresh carbon canisters that are available within eight (8)

hours for canisters that are 55 gallons or less and with twenty-four (24) hours for carbon

canisters that are greater than 55 gallons.

h. INVISTA shall continue to maintain records associated with the

requirements ofthis Paragraph, including all carbon canister monitoring readings and the

constituents being monitored for at least five (5) years after such readings occur.

54. Annual Review. Within sixty (60) days after the Entry Date, INVISTA shall

modify, to the extent necessary, its existing written management of change procedures to provide

for an annual review of process information for the Victoria and Orange Facilities, including but

not limited to construction projects, to ensure that all new benzene waste streams are included in

the waste stream inventory. INVISTA shall conduct such reviews or.i an annual basis.

55. Laboratory Audits. [NVISTA shall conduct audits of all laboratories that perform

analyses of INVISTA’s Benzene Waste NESHAP samples to ensure that proper analytical andquality assurance/quality control procedures are followed for such sa!nples.

a. Within 180 days after the Entry Date, INVISTA shall complete initial

audits of halfthe laboratories used by the Orange and Victoria Facilities, and shall complete the

audits for the remaining laboratories within 365 days ofthe Entry Date. INVISTA shall also

30
y 

y 

(

) 

years.

c. INVISTA may conduct audits itself, retain thi:rd parties to conduct these

audits, or use audits conducted by others as its own, but the responsibility and obligation to

ensure compliance with this Consent Decree, this Paragraph and Subpart FF are solely

1NV1STA’s.

56. Benzene Spills. For any spill at either the Victoria or Orange Facility after the Entry Date, NVISTA shall review the spill to determine if any benzene waste, as defined by Subpart FF, was generated as a result ofthe spill. JNV1STA shall continue to account for all

benzene wastes generated through spills that are not managed in controlled equipment, in an

enhanced biotreatment unit, or shipped offsite in accordance with 40 C.F.R. § 6 1.342-348 in its annual calculation against the 2 Mg compliance option.

57. Training.

a. Within 90 days after the Entry Date, INVISTA shall develop and implement a program for annual (i.e. once each calendar year) training for all employees who draw benzene samples for Benzene Waste NESHAP purposes.

b. Within 120 days after the Entry Date, INVISTA shall complete the

development ofstandard operating procedures (where they do not already exist) for all control devices and treatment processes used to comply with the Benzene Waste NESHAP at the

Victoria and Orange Facilities.

c. Within 180 days after the Entry Date, INViSTA shall complete an initial training program regarding these procedures for all operators assigned to the relevant equipment, ifsuch training has not already been provided. Comparable training shall also be provided to

any persons who subsequently become operators, prior to their assumption ofthis duty.

“Refresher” training in these procedures shall be performed on a three-year cycle (i.e., once

every three calendar years).

d. INVISTA shall require any contractors hired to perform any ofthe

requirements ofthis Subsection Vito provide evidence that its employees are properly trained to implement any requirements that they are hired to perform pursuant to Paragraphs 51, 53, 58, 60, and 61 ofthis Consent Decree.

58. Sampling Under the 2 MG Compliance Option. INVISTA shall conduct quarterly sampling as described by this Paragraph at the Victoria and Orange Facilities for the purpose of

31
end ofline

ofthe uncontrolled benzene waste streams; (ii) quarterry sampling of all

uncontrolled waste streams that count toward the 2 Mg/yr calculation and contain greater than

0.05 Mg/yr of benzene; (iii) quarterly sampling of all uncontrolled waste streams that qualify for

the 10 ppmw exemption (40 C.F.R. § 61 .342(c)(2)) and that contain greater than 0.1 Mg/yr ofbenzene. The Sampling Plans may identify conmingled, exempt waste streams for sampling,

provided INVISTA demonstrates that the benzene quantity ofthose commingled streams will notbe underestimated. Subparagraph 58.a(i) above shall not apply so long as the configuration of

the sewer systems at the Victoria and Orange Facilities are not modified from the 2007

configuration, except as contemplated by Paragraphs 47 and 50.

b. If changes in processes, operations, or other factors lead INVISTA to

conclude that its approved Sampling Plan may no longer provide an accurate measure ofthe

Facility’s quarterly benzene quantity in uncontrolled benzene waste streams, TNVISTA shall

submit a revised sampling plan to EPA for approval within 60 days after discovery of an issue

under this Paragraph occurs.

c. INVISTA shall commence sampling under its Sampling Planduring the

first full calendar quarter following submittal ofthe Plan, regardless ofwhether or not the Plan is

approved at that time. INVISTA shall take, and have analyzed, at least three representative

samples from each identified sanipling location. INVISTA shall use the average of all samples

taken and the identified flow calculations to determine its quarterly benzene quantity inuncontrolled waste streams and to estimate a calendar year value for the Facility.

d. After at least eight quarters ofsampling under an approved Sampling P14n

under this Paragraph 58, INVISTA may submit a report to EPA that requests a change in the

monitoring frequency for the Victoria and/or Orange Facilities. If EPA determines, after an

opportunity for consultation with iNVISTA, that the information presented in the report supports

a change in the monitoring frequency for one or more ofthe facilities, then the monitoring

frequency requirement under this Paragraph will be modified in accordance with Paragraph 14]

(Modification).

59. Quarterly and Annual Estimations of Uncontrolled Benzene Quantity. At the end

of each calendar quarter following commencement ofquarterly sampling, INVISTA shallcalculate a quarterly uncontrolled benzene quantity and shall estimate a projected calendar year

uncontrolled benzene quantity based on the quarterly sampling results and the approved flow

calculations. INVISTA shall submit the uncontrolled benzene quantity in the Semi-Annual

Reports due under Section Xli ofthis Decree.

32
q

ofthe calendar year. If additional actions are determined to be necessary to ensure compliance with the 2 Mg Compliance Option, 1NVISTA will include in the Semi-Annual Report, a BWON Corrective Measures Plan as

specified in Subparagraph 60.b.

b. BWON Corrective Measures Plan. The BWON Corrective Measures Plan

required by this Paragraph shall identif’: (i) the cause ofthe potentially elevated benzene quantities; (ii) all corrective actions that INVISTA has taken or plans to take to ensure that the

cause will not recur; and (iii) an appropriate strategy and schedule that INVISTA shall

implement to ensure that INVISTA complies with the 2 Mg Compliance Option. If a spill event is the main cause ofthe potentially elevated benzene quantities, the BWON Corrective Measures

Plan will focus on the spill event and on future measures to minimize and address spills. INVISTA shall implement its BWON Corrective Measures Plan in accordance with the schedule

provided therein.

c. Third-Party TAB Study and Compliance Review. After a second

consecutive quarter in which at least one ofthe conditions in Subparagraph 60.a continues to

exist and INVISTA is not then able to identif’ the cause(s) and/or appropriate corrective

measures to ensure compliance with the 2 Mg Compliance Option, INVISTA shall retain a thirdparty contractor to undertake a comprehensive TAB study and compliance review (“Third-Party TAB Study and Compliance Review”) at the applicable Facility. By no later than the last day of the next following quarter, INVISTA shall submit a proposal to EPA that identifies the

contractor, the contractor’s scope ofwork, and the contractor’s schedule for the Third-Party TAB Study and Compliance Review. Unless EPA disapproves or seeks modifications ofthe proposal within thirty (30) days after its receipt, 1NVISTA shall authorize the contractor to commence

work. INVISTA shall ensure that the work is completed in accordance with the schedule

provided therein. No later than thirty (30) days after INVISTA receI’,es the results ofthe ThirdParty TAB Study and Compliance Review, INVISTA shall submit the results to EPA. After the

report is submitted to EPA, INVISTA and EPA shall discuss informally the results ofthe Third- Party TAB Study and Compliance Review. No later than ninety (90) days after iNVISTA receives the results ofthe Third-Party TAB Study and Compliance Review or at such other time

as INVISTA and EPA may agree, IN VISTA shall submit to EPA a plan and schedule for

remedying any deficiencies identified in the Third-Party TAB Study and Compliance Review and any deficiencies that EPA identified following the Third-Party TAB Study and Compliance Review. Unless EPA disapproves or seeks modifications ofthe proposal within thirty (30) days after its receipt, INVISTA shall implement the remedial plan in accordance with the schedule

included in its plan.

33
individual drain systems;

ii. IfINVISTA utilizes conservation vents, visually inspect all

Subpart FF conservation vents or indicators on process sewers for

detectable leaks on a weekly basis, reset any vents where leaks are

detected, and record the results ofthe inspections. After two (2)

years ofweekly inspections, and based upon an evaluation ofthe

recorded results, INVISTA may submit a request to EPA Region 6

to modify the frequency ofthe insped ions. Alternatively, for

• conservation vents withindicators that identify whether flow has

occurred, INVISTA may elect to visually inspect such indicators

• on a monthly basis and, ifflow is then detected, INVISTA shall

then visually inspect that indicator on a weekly basis for fourweeks. Ifflow is detected during any two ofthose four weeks,

INVISTA shall install a carbon canister on that vent until

appropriate corrective action(s) can be implemented to preventsuch flow. Nothing in this Subparagraph shall require INVISTA to

monitor conservation vents on fixed rooftanks.

b. By no later than sixty (60) days after completing the segregation project

under Paragraph 47 and 50, INVISTA shall identify and mark at the drain all area drains in the

ADN Area that are segregated stormwater drains.

62. Recordkeeping and Reporting Requirements for this Section VI: Outside ofthe

Reports Required under 40 C.F.R. 6 1.357 and the Semi-Annual Reports Required by Section

XII (Periodic Reporting). At the times specified in the applicable provisions ofth is Section VI,INVISTA will submit, as and to the extent required, the following reports to EPA:

a. a certification of compliance under Paragraph 52;b. a report certifying the completion of installation ofdual carbon canisters

(under Subparagraph 53.a);

c. a BWON Sampling Plan (under Subparagraph 58.a), and revised BWON

Sampling Plan, ifnecessary (under Subparagraph 58.b).

63. Recordkeeping and Reporting Requirements for this Section VI: As Part ofthe

Semi-Annual Reports Required by Section XII (Periodic Reporting). INVISTA shall submit the

following information in the Semi-Annual Reports submitted pursuant to Section XII (PeriodicRecordkeeping) for the six month period covered by the Report:

34
c. A summary ofthe sampling results required under Paragraph 58, including

the quarterly and projected annual uncontrolled benzene quantities or

TAB, as applicable.

VIL LEAK DETECTION AND REPAIR PROGRAM ENHANCEMENTS

64. In order to minimize or eliminate fugitive emissions of volatile organic compounds (“VOCs”), benzene, volatile hazardous air pollutants (“VHAPs”), and organic hazardous air pollutants (“HAPs”) from equipment in light liquid and/or in gas/vapor service,

1NVISTA shall undertake the enhancements identified in this Section VII to its leak detection

and repair (“LDAR”) programs at the Victoria and Orange Facilities under all applicable federal

Clean Air Act, and analogous state and local LDAR requirements.

65. Written LDAR Program Description. By no later than sixty (60) days after the

Entry Date, INVISTA shall develop and maintain a written LDAR Program Description for a

program for compliance with all federal, state, and local LDAR regulations applicable to the Victoria and Orange Facilities. NVISTA shall update the LDAR Program Description as may be necessary to ensure continuing compliance. The LDAR Program Description shall include, at

a minimum:

a. A set ofleak rate goals for the Victoria and Orange Facilities that will be a

target for achievement on a process-unit-by-process-unit basis. Such

targets shall have the purpose offacilitating lower leak rates and are not

intended as enforceable requirements;

b. An identification of all equipment in light liquid and/or in gas/vapor

service that is subject to periodic monitoring requirements via 40 C.F.R.

Part 60, EPA Reference Test Method 21 under any applicable federal,

state, or local LDAR regulation and that has the potential to leak VOCs,

HAPs, VI-IAPs, and benzene within the Victoria and Orange Facihties

process units.

c. Procedures for identifying leaking equipment within the Victoria and

Orange Facilities process units;

d. Procedures for repairing and keeping track ofleaking equipment;

e. Procedures for identif’ing and including new equipment to be added to the

LDAR program;

35
as required by Paragraph 67; and

h. A procedure for regularly communicating LDAR information to

appropriate INVISTA personnel.

66. Training. INVISTA shall continue to implement its current training program,

which includes the following features, and within ninety (90) days of completion ofthe written

LDAR Program Description, 1NVISTA shall begin to implement a new training program at the

Victoria and Orange Facilities which includes the following features:

a. For personnel newly-assigned to LDAR responsibilities, INVISTA shall

• require LDAR training prior to each employee beginning such work;

b. For all personnel assigned LDAR responsibilil:ies, INVISTA shall provide

and require completion of annual LDAR training or require its LDAR

contractor to provide such training (initial annual LD.AR training for all

such personnel will be completed not later than one year after the Entry

• Date);

c. For all other. Facility operations and maintenance personnel (including

contract personnel) who have duties relevant to LDAR, INVISTA shallprovide and require completion of an initial training program that includes

instruction on aspects ofLDAR that are relevant to the person’s duties

(initial LDAR training for all such personnel will be completed not later

than one year after the Entry Date); and

d. For the individuals covered by this Paragraph, “refresher” training in

LDAR shall be performed on a cycle of no longer than three years.

67. LDAR Personnel. By no later than 180 days after the Entry Date, INVISTA shall

establish a program that holds each person assigned LDAR responsibilities accountable for

assuring compliance with LDAR. By no later than ninety (90) days after the Entry Date,

INVISTA shall establish and maintain a person or position with responsibility for LDAR

management and authority to implement LDAR improvements.

68. LDAR Audits. INVISTA shall implement Facility-wide LDAR Audits — including an Initial LDAR Audit and Regular LDAR Audits — as set forth in this Paragraph to

ensure the Victoria and Orange Facilities’, compliance with all applicable LDAR requirements.Each LDAR Audit shall include, but shall not be limited to: (I) performing comparative

36
complete an Initial LDAR Audit for the Victoria Facility by no later than December 31, 2009, and for the Orange Facility by no later than June 30, 2010.

b. Initial Audit Report. Within ninety (90) days of completion of each audit, INVISTA shall report to EPA any areas of non-compliance identified as a result of its audit and

submit in writing a proposed compliance schedule for correcting the non—compliance. Ifthe proposed compliance schedule extends greater than ninety (90) days beyond the audit completion date, INVISTA must seek approval ofthe compliance schedule from EPA. INVISTA shall

implement the compliance schedule as proposed until the schedule is approved or disapproved by EPA. Within ninety (90) days of completing each audit, INVISTA shall certify to EPA that the facility: is in càmpliance; has completed related corrective action (ifnecessary); and/or is on

a compliance schedule, and shall specifically certify that all affected equipment has been identified and included in the facility LDAR program. Violations identified in the report ofthe initial audit conducted pursuant to Subparagraph 68.a and corrected by INVISTA as required in Paragraph 69 shall not be subject to the stipulated penalties in Paragraph 89.

c. Regular LDAR Audits. -

i. Third-Party Audits. INVISTA shall retain a contractor to perform

a Third-Party LDAR Audit ofthe Victoria and Orange Facilities’

LDAR program at least once every four (4) calendar years after the

Initial LDAR Audit is completed under Subparagraph 68.a (with

approximately 48 months between the Audits).

ii. Internal Audits. Internal LDAR Audits ofthe Victoria and Orange Facilities’ LDAR program shall be completed by having an audit

performed by personnel familiar with the LDAR program and its

requirements. INVISTA shall complete an Internal LDAR Audit

by no later than two (2) years from the date ofthe completion of

the third-party audits required in Subparagraphs 68a and 68.ci.

INVISTA shall perform an internal audit of the Victoria and

Orange Facilities’ LDAR program at least once every four (4)

calendar years (with approximately 48 months between the

Audits). INVESTA may elect to retain third-parties to undertake an

Internal Audit, provided that a Regular LDAR Audit at the

Victoria and Orange Facilities occurs every two (2) years.

III. Timing. To ensure that an LDAR Audit occurs every two (2) years

at the Victoria and Orange Facilities, once the Initial Audit is

37
or otherwise address such area(s) of non-compliance and to prevent, to the extent practicable, a

recurrence ofthe cause ofsuch non-compliance. For purposes ofthis Paragraph, a ratio ofthe

process unit valve leak percentage, established through a comparative monitoring audit

conducted under Paragraph 68 to determine the average valve leak percentage reported for the

process unit for the four quarters immediately preceding the audit, in excess of 3.0 shall be

deemed a cause for corrective action. Ifthe calculated ratio yields an infinite result, ENVISTA

shall assume one leaking valve was found in the process unit through its routine monitoring

during the four-quarter period. INVISTA shall, during the term ofthis Consent Decree, retain

the Initial Audit Repoftand all other LDAR Audit reports generated pursuant to Paragraph 68,

and shall maintain a written record of all corrective actions that INVISTA takes in response todeficiencies identified in any LDAR Audits. After the completion of any LDAR Audit other

than the Initial Audit, INVISTA shall include the following information in the next Semi-Annual

Report due under Section XII ofthis Consent Decree: (a) a summary, including findings, of each

such LDAR Audit; and (b) a list of corrective actions taken during the reporting period and any

schedule for implementing future corrective actions. V

70. Internal Leak Definition for Valves and Pumps. Unless otherwise exempt from

monitoring under all applicable regulatory requirements,INYISTA shall continue to utilize thefollQwing internal leak definitions for valves and pumps in light liquid and/or gas/vapor service,

V unless other permit(s), regulations, or laws require the use oflower leak definitions. If

INVISTA’s compliance with the Consolidated Federal Air Rule (“CAR”) at 40 C.F.R. Part 65 isat least as stringent as the requirements under this Paragraph and compliance with CAR is

achieved on or before the deadlines set pursuant to this Paragraph, then compliance with CARshall constitute compliance with this Paragraph.

a. Leak Definition for Valves. By no later than 365 days after the Entry

Date, INVISTA shall utilize an internal leak definition of 500 ppm VOCs for valves that have

not been previously subject to this internal leak definition at the Victoria and Orange Facilities,

excluding pressure reliefdevices.

b. Leak Definition for Pumps. By no later than 365 days after the Entry

Date, INVISTA shall utilize an internaL leak definition of 2000 ppm fur centrifugal pumps that

have not been previously subject to this internal leak definition at the Victoria and Orange

Facilities. Reciprocating pumps, connectors, compressors, and other components shall retain

their applicable regulatory leak definition.

38
applicable LDAR requirements, INVISTA shall monitor pumps at the internal leak definition on

a monthly basis.

b. Valves. When the lower internal leak definition for valves becomes

applicable under Subparagraph 70.a, and unless more frequent monitoring is required by applicable LDAR requirements, INVISTA shall monitor valves (other than difficult to monitor

or unsafe to monitor valves) at the internal leak definition on a quarterly basis, with no ability to skip periods on a process-unit-by-process-unit basis.

72. Reporting, Recording, Trackin, Repairing and-Remonitoring Leaks of Valves and Pumps Based on the Internal Leak Definitions. IfiNVISTA’s compliance with CAR (40 C.F.R. Part 65) is at least as stringent as the requirements under this Paragraph and compliance with CAR is achieved on or before the deadlines set pursuant to this Paragraph, then compliance with CAR shall constitute compliance with thisParagraph.

a. Rcporting. For regulatory reporting purposes, ENVISTA may continue to

report leakrates in valves and pumps against the reporting requirements stated in applicable regulations, or may use the lower, internal leak definitions specified in Paragraph 70.

b. Recording, Tracking. Repairing and Remonitcring Leaks. INVISTA shall record, track, repair, and re-monitor all leaks in excess ofthe internal, leak definitions of

Paragraph 70 (at such time as those definitions become applicable). Except as provided otherwise in this Section VII, INVISTA shall make a first attempt at repair and remonitor the

component within five (5) calendar days after a leak is detected and, if continuing to leak, either complete repairs and re-monitor leaks or place such component on the Facility’s delay ofrepair list according to Paragraph 77 within thirty (30) days after a leak is detected. All records of

repairs, repair attempts, and remonitoring shall be maintained for the life ofthe Consent Decree.

73. initial Attempt at Repair on Certain Valves. By no later than ninety (90) days after the Date of Entry, 1NVISTA shall promptly make an “initial attempt” at repair after detecting a leak at a reading greater than 200 ppm of VOCs at any valve, excluding pressure relief devices, control valves, valves that are on the delay ofrepair list, and components that LDAR personnel are not authorized to repair. INVISTA or its designated contractor shall re monitor the valve in question within five (5) calendar days after the “initial attempt” to repair. If the remonitored leak reading is below the applicable leak definition, no further action will be

necessary. Ifthe re-monitored leak reading is greater than the applicable leak definition,

INVISTA shall repair the valve according to the requirements of Subparagraph 72.b, except that

no first repair attempt requirement shall apply. IfINVISTA can demonstrate with sufficient,

statistically significant monitoring data over a period ofat least two years that “initial attempts”

39
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and Orange Facilities.

b. Electronic Data Collection During LDAR Monitoring and Transfer

Thereafter. By no later than 180 days after the Entry Date, INVISTA shall use data lpggersand/or electronic data collection devices during all LDAR monitoring at the Victoria and Orange

Facilities. INVISTA, or its designated contractor, shall use its best efforts to transfer, by the endofthe next business day, the electronic data from electronic data logging devices to the electronic

database maintained pursuant to Subparagraph 7.a. For all monitoring events in which an

electronic data collection device is used, the collected monitoring data shall include a time and

date stamp, and identification ofthe instrument and operator. INVISTA may only use paper logs

where necessary or more feasible (e.g., small rounds, re-monitoring, or when data loggers areunavailable or broken, etc.), and shall record, at a minimum, the identity ofthe technician, the

date, the monitoring starting and ending times, all monitoring readings, and an identification ofthe monitoring equipment. 1NVISTA shall use its best efforts to transfer any manually recorded

monitoring data to the electronic database maintained pursuant to Subparagraph 74.a within

seven (7) days ofthe monitoring event.

75. QA/QC ofLDAR Data. By no later than 90 days after the Entry Date, INVISTA

(or a third-party contractor retained by INVISTA) shall develop and implement procedures for

quality assurance/quality control (“QA!QC”) reviews of all data generated by LDAR monitoring

technicians. INVISTA shall ensure that monitoring data provided by monitoring technicians isreviewed daily for QA/QC. At least once per calendar quarter, INVISTA shall perform a

QA/QC review of each contractor’s monitoring data which shall include, but not be limited to, areview of: (i) the number of components monitored per technician; (ii) the time between

monitoring events; and (iii) abnormal data patterns.

76. Calibration/Calibration Drift Assessment

a. Calibration. INVISTA shall conduct all calibrations of LDAR monitoring

equipment at the Victoria and Orange Facilities using methane as the calibration gas, and in

accordance with 40 C.F.R. Part 60, EPA Reference Test Method 21.

b. Calibration Drift Assessment. By no later than 365 days after the Entry

Date, INVISTA shall conduct calibration drift assessment re-checks ofthe LDAR monitoring

equipment at least at the end of each day and anytime a machine shuts off. 1NVISTA shall

conduct the calibration drift assessment re-check using a calibration gas with a concentration

approximately equal to the applicable internal leak definition for the life ofthis Consent Decreeas defined in Section XXVII (Termination ofConsent Decree). If an’, calibration drift

assessment after the initial calibration shows a negative drift ofmore than 10% from the previous

40
a. By no later than ninety (90) days after the Entry Date, INVISTA shall take the following actions for any equipment at the Victoria and Orange Facilities that INVISTA intends to place on the “delay of repair” list, under applicable regulations:

i. TNVISTA shall require sign-off by the unit supervisor within thirty (30) days ofidentif’ing that a piece of equipment is leaking at a

rate greater than the applicable leak definition and that such

equipment qualifies for delayed repair under applicable

regulations;

ii. INVISTA shall include equipment that is placed on the “delay of

repair” list in INVISTA’s regular LDAR monitoring;

iii. INVISTA shall use its best efforts to isolate and repair centrifugal

pumps identifled as leaking at a rate of 2,000 ppm or greater; and

iv. Beginning no later than six (6) months from the Date of Lodging

ofthe Consent Decree, on valves subject to the LDAR

Regulations, other than control valves and pressure relief valves,

that are leaking at a rate of 10,000 ppm or greater, INVISTA will

use a “drill and tap” or equivalent method for fixing such leaking valves, unless INVISTA can demonstrate that there is a safety,

mechanical, or adverse environmental concern posed by attempting

to repair the leak in this manner. INVISTA will perform the first

“drill and tap” (or equivalent repair method) within fifteen (15)

days, and a second attempt (if necessary) within thirty (30) days after the leak is detected. If a new method develops for repairing such valves, INVISTA will advise EPA prior to implementing the

use ofsuch new method in place of drill and tap for repairs required under this Decree.

78. Chronic Leakers. A valve shall be classified as a “chronic leaker” under this

Paragraph if it leaks above 5,000 ppm twice in any consecutive four (4) quarters after the Entry Date, unless the valve has not leaked in the twelve (12) consecutive quarters prior to the relevant

process unit turnaround. Following the identification of a “chronic leaker” non-control valve, TNVISTA shall replace, repack, or perform similarly effective repairs on the chronic leaker during the next process unit turnaround.

79. Alternate Leak Detection Method. As an alternative to the LDAR requirements

41
Section XII (Periodic Reporting), INVISTA shall include the following information in the

Report for the period in which the identified activity occurred or was required:

i. A copy ofthe LDAR Program Description under Paragraph 65;

ii. A certification that the training program has been implemented as

required by Paragraph 66;

iii. An identification ofthe person or position responsible for LDAR

performance as required by Paragraph 67;

iv. A certification that the lower leak definitions and increased

monitoring frequencies have been implemented according to

Paragraphs 70 and 71;

v. A certification ofthe implementation ofthe “initial attempt” to

repair program under Paragraph 73;

vi. A certification ofthe implementation ofQAJQC procedures for

review ofdata generated byLDAR technicians as required by

Paragraph 75;

vii. A certification ofthe implementation ofthe calibration drift

assessment procedures ofParagraph 715;

viii. A certification ofthe implementation ofthe “delay ofrepair”

procedures of Paragraph 77;

ix. A list ofthe process units monitored during the reporting period;

x. The number ofvalves and pumps present in each process unit;

xi. The number of valves and pumps monitored in each process unit;

xii. The number of valves and pumps found leaking for each process

unit;

xiii. The number of “difficult to monitor” pieces of equipment

monitored;

42
xvi. The number ofrepairs not attempted within five (5) days and thirty

(30) days pursuant to Subparagraph 72.b;

xvii. The number of initial attempts at repair not made promptly and

remonitored within five (5) days pursuant to Paragraph 73;

xviii. The number ofrepairs not completed at the next process unit

turnaround pursuant to Paragraph 78; and

xix. The number ofrepairs not completed within fifteen (15) days and

thirty (30) days under Subparagraph 77.a.iv.

b. Special Requirement for Initial Semi-Annual Report Each Year. As part

ofthe first Semi-Annual Report submitted each year pursuant to Section XII (Periodic

Reporting), INVISTA shall identif’ each LDAR Audit that was conducted under Paragraph 68 in

the previous calendar year, including an identification ofthe auditors, a summary ofthe audit

results, and the actions that INVISTA took or intends to take to correct identified defjciencies.

Vlll. RESOLUTION OF CLAIMS

81. Claims Based on Violations in Appendix A. Entry ofthis Consent Decree shall

resolve INVISTA’s civil and administrative liability to the Plaintiffs for the alleged violations

specified in Appendix A.

82. Claims Based on Violations in Appendix B. Satisfaction ofthe requirements in

Sections IV and V ofthis Consent Decree shall resolve INVISTA’s civil and administrative

liability to the Plaintiffs for NNSRJPSD or NSPS claims, as applicable, arising out ofthe alleged violations specified in Appendix B. Notwithstanding the resolution of liability in this Paragraph, the release ofliability by the Plaintiffs to INVISTA for claims arising out ofthe alleged

violations specified in Appendix B shall be rendered void ifINVISTA materially fails to comply with the obligations and requirements of Section IV (relating to NNSR/PSD Requirements) or

Section V (relating to NSPS Flaring Devices) ofthis Consent Decree; provided, however, that

the release in this Paragraph shall not be rendered void if INVISTA remedies such failure and

pays any stipulated penalties due as a result ofsuch material failure.

83. Claims Based on BWON and LDAR Violations. Satisfaction ofthe requirements in Section VI and VII ofthis Consent Decree shall resolve INVISTA’s civil and administrative

liability to the Plaintiffs for (1) BWON and LDAR claims arising out ofthe alleged violations

specified in Appendix C and (2) violations offederal or federally-enforceable state or local

43
and requirements of Sections VI and VII (relating to B WON and LDAR Requirements) ofthis

Consent Decree; provided, however, that the releases in this Paragraph shall not be rendered voidifINVISTA remedies such failure and pays any stipulated penalties due as a result ofsuch

material failure.

84. Nothing in this Consent Decree is intended nor shall be construed as a waiver by

EPA, the United States or of any ofthe Plaintiffs of its right to institute an administrative or civilaction against INVISTA for any past, present, or future civil violations of any statutes, rules or

regulations other than for those violations listed in Appendix A, B, or C. Nothing in this Consent

Decree is intended nor shall be construed to operate in any way to resolve any criminal liability

ofINVISTA. Except as otherwise provided in Paragraphs 8 1-83, INVISTA’s compliance with

this Consent Decree shall be no defense in law or equity to any action commenced by the

PlaintifTh pursuant to any federal, state or local law, regulation, or permit.

85. The United States’, DNREC’s, SCDHEC’s and the CHCAPCB’s agreement to the

terms ofthis Consent Decree is expressly conditioned on the compleleness, accuracy and truth of

INVISTA’s certifications set forth in Subparagraphs 97.a through 97.h ofthis Consent Decree.

• :. In the event that INVISTA has made any material misrepresentations or omissions in any

Subparagraph 97.a through 97.h ofthis Consent Decree:

a. The Resolution ofClaims in Paragraphs 8 1-83 shall be jointly voidable by

action ofthe United States and the Applicable Co-Plaintiff, except that anycivil penalty or stipulated penalty payments already made by INVISTA

under this Consent Decree shall be forfeited by INVISTA; and

b. The Plaintiffs may pursue all civil and criminal remedies and sanctions

available to them under law on account of Defendant’s violations,

including criminal prosecution for perjury or false swearing.

86. In the event that INVISTA has made a nonmaterial misrepresentation or omission

in any Subparagraph 97.a through 97.h then the Resolution ofClaims in Paragraphs 8 1-83 shallbe jointly voidable by action ofthe United States and the Applicable Co-Plaintiffsolely with

respect to the violations to which such nonmaterial misrepresentation. related, but not voidable in

their entirety.

IX. PAYMENT OF CIVIL PENALTIES

87. Within thirty (30) days after Date ofEntry ofthis Consent Decree, INVISTA shall

pay to the Plaintiffs a civil penalty totaling $1,700,000 dollars in accordance with Subparagraphs

87.a— 87.f below, in settlement ofthe civil violations alleged in the Plaintiffs’ Complaints.

44
b. INVISTA shall pay the amount of $500,000 to DNREC.

c. INVISTA shall pay the amount of $250,000 to SCDHEC.

d. INVISTA shall pay the amount of $100,000 to the CHCAPCB.

e. INVISTA shall pay any amounts due to DNREC, SCDHEC, or the

CHCAPCI3 by certified or corporate check payable to that entity and sent by first-class mail to the first person listed under the Notice section (Section XVIII) below.

f. INVISTA shall send notice to the United States that payment has been made in accordance with Section XVIII ofthis Consent Decree (Notices).

88. INVISTA shall not deduct any penalties paid under this Decree pursuant to this Section or Section X (Stipulated Penalties) in calculating its federal or State income taxes.

X. STIPULATED PENALTIES / VIOLATION OF CONSENT DECREE

89. For any failure by ENVISTA to comply with the terms ofthis Consent Decree, and subject to the provisions of.Sections XIV (Force Majeure) and XV (Dispute Resolution), INVISTA shall pay, within thirty (30) days after receipt ofwritten demand to INVISTA, the

following stipulated penalties to the United States and/or the Applicable Co-Plaintiff:

Consent Decree Violation Stipulated Penalty

(Per day per violation, unless otherwise

specified)

a. Failure to pay the civil penalty as $10,000

specified in Section IX (Payment ofCivil

Penalties) ofthis Consent Decree

b. Failure to comply with any applicable $100 for each 3-hour limit exceeded;

3-Hour Rolling Average, 24-Hour Rolling $1,000 for each 24-hour limit exceeded;

Average Emissions Rate, 30-Day and $1,500 for each 30-day limit Emissions Rate, 30-Day Rolling Tonnage exceeded.

c. Failure to comply with any applicable $5,000 for each ton exceeding the limit 12-Month Rolling Average Emission Rate up to 100 tons; $10,000 for each ton

or 12-Month Rolling Tonnage. exceeding 100 tons above the limit

d. Failure to install, commence operation, $5,000 during the first 30 days, $7,000

or Continuously Qperate the NO or SO2 for 31st through 60th day; and $10,000

45
g

p

p

(

defined below in Paragraph 91),

whichever is greater

f. Failure to install or operate CEMS as $1,000

required in Paragraph 26, 37, or 38

g. Failure to apply for any permit required $1,000by Section XVI

h. Failure to install and fully implement $7,500 per month

new ADN technology as required by

Paragraph 44.a, if applicablei. Failure to complete any action to correct $7,500 per month

noncompliance as required by Paragraphs

45, 47-48, or 50

j. Failure to timely install Benzene $1,000

NESHAP controls required by Paragraph

46 or 49

k. Failure to timely install or replace $1,000

carbon canisters as required by Paragraph V

V 53 V

1. Failure to maintain (he records or $2,000 V

materials required by Section VI ofthisDecree

m. Failure to establish an annual review $2,500 per monthprogram to identify new benzene waste

streams as required by Paragraph 54

n. Failure to perform laboratory audits as $5,000 per month

required by Paragraph 55

o. Failure to implement training measures $10,000 per quarter

specified in Paragraph 57p. Failure to conduct sampling in -$2,500 per week per stream

accordance with the sampling plans V - $15,000 per quarter per stream,

required in Paragraph 58 whichever is greater, but not to exceed

V

$150,000 per quarter per facility

q. Failure to identify/mark segregated $1,000 per drain per weekstormwater drains as required by Paragraph

61 .b

r. Failure to monitor conservation vents or $1,000 per month

oil-water separators as required by

Paragraph 61.aii

46
u. Failure to timely develop an LDAR $3,500 per week

program as required by Paragraph 65

v. Failure to timely implement a training $10,000 per month

program as required by Paragraph 66

w. Failure to conduct any audits as $5,000 per month per audit required by Paragraph 68

x. Failure to perform monitoring utilizing $100 per component, but not greater than the lower internal leak rate definitions in $10,000 per month per process unit

Subparagraph 70(a) and (b) or to repair and

remonitor leaks in accordance with

•Paragraph 72

y. Failure to implement the initial attempt $100 per component, but not greater than

at repair program in Paragraph 73 $10,000 per month per facility

z. Failure to implement the quarterly $10,000 per month per facility

QAJQC procedures described in Paragraph

75

aa. Failure tà implement and comply with $100 per component but not greater than

the LDAR monitoring program in the $10,000 per month per facility

Written LDAR Program Description under

Paragraph 65.

bb. If it is determined through a federal,

•state or local investigation that INVISTA

failed to include all valves and pumps in its

LDAR program, INVISTA shall pay

$2000 for those it failed to include. If

INVISTA discovers it has failed to include

all valves and pumps in its LDAR

program, it shall pay $75 per component

that it failed to include.

cc. Failure to timely submit, modify, or $750 during the first ten days, $1,000 implement, as approved, the reports, plans, thereafter

studies, analyses, protocols, or other

submittals required by this Consent

Decree, except as otherwise specified in

this Paragraph 89, above.

90. Violation of an emissions limit based on a 3-Hour Rol’ing Average basis is a violation for each 3-hour period during which the specified limit is exceeded. Violation of a 24-

47
seek shall rest exclusively within the discretion ofthe EPA and the Applicable Co

Plaintiff. For

purposes ofthis Section X, the term “economic benefit of non-compliance” means the economicbenefit accrued from delaying a capital investment, delaying a one-time expenditure, and

avoiding recurring costs (such as operation and maintenance costs) over the period of non

compliance. The overall “economic benefit of non-compliance” will be calculated based on the

total number of days of non-compliance, and will be multiplied by 1.2 to compute the total

stipulated penalty amount under a particular provision ofthis Section X. That total stipulated

penalty amount will be assessed for the full period of non-compliance, and will not be assessed

“per day.” In no event shall any stipulated penalty assessed against [NVISTA exceed $37,500(or any inflation-adjusted increase in that maximum penalty amount set pursuant to the Federal

Civil Penalties Inflation Adjustment Act of 1996) per day for any individual violation ofthis

Consent Decree.

92. All stipulated penalties shall begin to accrue on the day after the performance is

due or on the day a violatIon occurs, whichever is applicable, and shall continue to accrue until

perforniance is satisfactorily completed or until the violation ceases. Where a single eventtriggers-more than one stipulated penalties provision in this Consent Decree, only the provision

providing for the higher stipulated penalty shall apply, and that stipulated penalty is accrued for

each day of violation unless otherwise specified in Paragraph 89.

93. INVISTA shall pay all stipulated penalties to the United States and the Applicable

Co-Plaintiffs within sixty (60) days ofreceipt ofwritten demand to INVISTA from the United

States and/or the Applicable Co-Plaintiff, and shall continue to make such payments every thirty

(30) days thereafter until the violation(s) no longer continues, unless INVISTA elects within

thirty (30) days ofreceipt ofwritten demand to INVISTA from the United States and/or the

Applicable Co-Plaintiffto dispute the accrual ofstipulated penalties in accordance with the

provisions in Section XVI (Dispute Resolution) ofthis Consent Decree. A demand from either

the United States or an Applicable Co-Plaintiffshall be deemed a demand from both, but the

United States and the Applicable Co-Plaintiffshall consult with each other prior to making a

demand. A demand for the payment ofstipulated penalties will identiI’ the particularviolation(s) to which the stipulated penalty relates, the stipulated penalty amount that the UnitedStates or the Applicable Co-Plaintiff is demanding for each violation (as can be best estimated),

the calculation method underlying the demand, and the grounds upon which the demand is based.

After consultation with each other, the United States and the Applicable Co-Plaintiffmay, intheir unreviewable discretion, waive payment of all or any portion ofstipulated penalties that

may accrue under this Consent Decree. Stipulated penalties shall be paid to the United States

and Applicable Co-Plaintiff in the following manner:

a. Stipulated penalties owed by INVISTA shall b paid 50% to the United

States and 50% to the Applicable Co-Plaintiff. Ifthere is no Applicable Co-Plaintiff, stipulated

48 -
94. Should TNVISTA dispute the United States’ and/or an Applicable Co-Plaintiff’s

demand for all or part of a stipulated penalty, it may avoid liability for failure to pay a stipulated penalty by placing the disputed amount demanded in a commercial escrow account pending resolution ofthe matter and by invoking the dispute resolution provisions of Section XV within the time provided in Paragraph 93 for the payment ofstipulated penalties. Ifthe dispute is thereafter resolved in 1NVISTA’s favor, the escrowed amount plus accrued interest shall be

returned to TNVISTA: otherwise, the United States and the Applicable Co-Plaintiffshall be

entitled to the amount that was due by the Court, plus the interest that has accrued in the escrow

account on such amount. Such payment shall be made according to the following schedule:

a. Ifthe dispute is resolved by agreement, or by decision of Plaintiffs

pursuant to Section XV (Dispute Resolution) cfthis Consent Decree that

is not appealed to the Court, accrued stipulated penalties agreed or

determined to be owed, together with accrued interest, shall be paid within

thirty (30) days ofthe effective date ofthe agreement or ofINVISTA’s

receipt of EPA’s decision,

b. Ifthe dispute is appealed to the Court and Plaintiffs prevail in whole or in

part, INVISTA shall, within sixty (60) days ofreceipt ofthe Court’s

decision or order, pay all accrued stipulated penalties determined by the

Court to be owed, together with accrued interest, except as provided in

Subparagraph 94.c.;

c. Ifthe Court’s decision is appealed by either Party and the Plaintiffs prevail in whole or in part, INVISTA shall, within fifteen (15) days ofreceipt of

the final appellate court decision, pay all accrued stipulated penalties

determined to be owed, together with accrued interest.

d. For purposes ofthis Paragraph, the accrued stipulated penalties agreed by the Parties, or determined by the Plaintiffs through Dispute Resolution, to

be owing may be less than the stipulated penahy amounts set forth in

Paragraph 89.

95. Should INVISTA fail to pay stipulated penalties in compliance with the terms of this Consent Decree, the Plaintiffs shall be entitled to collect interest on such penalties, as provided for in 28 U.S.C. § 1961,

49
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XL INVISTA’S CERTIFICATIONS

97. INVISTA certifies as true to the best of its knowledge and belief, after a

reasonable inquiry, each ofthe factual assertions set forth in the following Subparagraphs 97.a

through 97.h regarding the subject violations set forth in Appeddix A attached to both thisDecree and the United States’ Complaint:

a. INVISTA discovered the subject violations through an environmental

audit or through a compliance management system reflecting its due

diligence;

b. TNVISTA either disclosed the subject violations to or entered into the

audit agreement with EPA prior to discovering such violations through a

monitoring or sampling’requirement prescribed by statute, regulation,

permit, judicial or administrative order, or consent. agreement;

c. INVISTA disclosed the subject violations promptly and in writing;

d. INVISTA disclosed the subject violations to EPA prior to the

commencement of a federal, state, or local inspection or investigation,notice of a citizen suit, filing of a complaint ofa third party, reporting of

the subject violations to EPA (or other government agency) by a “whistle

blower” employee, or imminent discovery by a regulatory agency;

e. INVISTA has corrected the subject violations in Appendix A and is, to the

best of its knowledge and belief, in full compliance with the

Environmental Requirements with respect to the subject violations ofsuchEnvironmental Requirements as set forth in Appendix A at the Acquired

Facilities that INVISTA currently owns;

f. INVISTA has taken appropriate steps to prevent a recurrence ofthe

subject violations;

g. INVISTA has owned and operated the Acquired Facilities since April 30,

2004. For the period beginning April 30, 2004, through August 2004,INVISTA did not receive notice from the government of any ofthe

violations (or closely related violations) identilied in Appendices A, B,

and C. For the purposes ofth is Subparagraph g., a violation is:

50
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g

y has previously

received penalty mitigation from EPA or a state or local agency;

and

h. INVISTA cooperated as requested by EPA and provided information

necessary and requested by EPA to determine applicability ofthe Audit

Policy.

XII. PERIODIC REPORTING

98. Within 180 days after each date established by Section IV ofthis Consent Decree

for INVISTA to achieve and maintain a certain Emission Rate and/or Removal Efficiency at any Unit, except those Units that are not required to install pollution control equipment pursuant to this Consent Decree, INVISTA shall conduct a performance test that demonstrates compliance with the Emission Rate and/or Removal Efficiency required by this Consent Decree. Within

forty-five (45) days ofeach such performance test, INVISTA shall submit the results ofthe

performance test to EPA and the Permitting Authority at the addresses specified in Section XVIII (Notices) ofthis Consent Decree.

99. In addItion to any other express reporting requirement in this Consent Decree,

INVISTA shall submit to EPA and the applicable Permitting Authority a semiannual progress report beginning July 31, 2009 for the period between Entry Date and June 30, 2009, and

continuing semi-annually thereafter.

100. The progress report shall contain the following information: - a. a progress report on the implementation ofthe requirements of Sections

IV-VII above;

b. all information relating to emission allowances and credits that INVISTA

claims to have generated in accordance with Paragraph 40 by compliance beyond the requirements ofthis Consent Decree;

c. a summary of the emissions data, including a separate identification of any exceedance(s) ofConsent Decree emission limitations or standards for the

Acquired Facilities set forth or established pursuant to Sections IV, VI,

and VII ofthis Consent Decree for that time period; and

d. a description of any problems anticipated with respect to meeting the

requirements of Sections IV - VII ofthis Consent Decree.

51
102. Each INVISTA progress report shall be signed by INVISTA’s Environment

Health and Safety Director, or, in his or her absence, a higher ranking official, and shall contain

the following certification:

This information was prepared either by me or 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 evaluation, or the

direction and my inquiry ofthe person(s) who manage.the system or the person(s)directly responsible for gathering the information, I hereby certify under penalty

of law that, to the best of my knowledge and belief, this information is true,

accurate, and complete. I understand that there are significant penalties for -

submitting false, inaccurate, or incomplete information to the United States.

XIII. REVIEW AN]) APPROVAL OF SUBM[ITTALS

103. INVISTA shall submit each plan, report, or other submission to EPA and the

Applicable Co-Plaintiff whenever such a document is required to be submitted for review or

approval pursuant to this Consent Decree. EPA and the Applicable Co-Plaintiff may approve thesubmittal or decline to approve it and provide written comments explaining the basis for

declining such approval as soon as reasonably practicable. Such Plaintiffs will endeavor to

coordinate their comments into one document when explaining their basis for declining such

approval. Within sixty (60) days ofreceiving written comments from EPA and the Applicable

Co-Plaintiff, INVISTA shall either: (a) revise the submittal consistera with the written comments

and provide the revised submittal for final approval to EPA and the Applicable Co-P1aintiff or

(b) submit the matter for dispute resolution, including the period of i riformal negotiations, under

Section XVI (Dispute Resolution) ofthis Consent Decree.

104. Upon receipt of Plaintiffs (or Plaintiffs’) final approval ofthe submittal, or upon

completion ofthe submittal pursuant to dispute resolution, INVISTA shall implement the

approved submittal in accordance with the schedule specified therein.

XIV. FORCE MAJEURE

105. For purposes ofthis Consent Decree, a “Force Majeure Event” shall mean an

event that has been or will be caused by circumstances beyond the control of INVISTA, itscontractors, or any entity controlled by INVISTA that delays compliance with any provision of

this Consent Decree or causes a violation of any provision ofthis Consent Decree despite

INVISTA’s best efforts to fulfill the obligation. “Best efforts to fulfill the obligation” include

52
y delay compliance with or cause a violation of any obligation under this Consent Decree, as to which ENVISTA intends to assert a claim of Force Majeure, INVISTA shall notify the United States and Permitting Authority in writing as soon as practicable, but in no event later than

twenty (20) business days following the date INVISTA knew or should have known ofthe

event. In this notice, TNVISTA shall reference this Paragraph 106 ofthis Consent Decree and

describe the anticipated length oftime that the delay or violation may persist, the cause or causes of the delay or violation, all measures taken or to be taken by INVISTA to prevent or minimize the delay or violation, the schedule by which iNVISTA proposes to implement those measures, and INVISTA’s rationale for attributing a delay or violation to a Force Majeure Event. iNVISTA shall adopt all reasonable measures to avoid or minimize such delays or violations. INVISTA shall be deemed to know of any circumstance which INVISTA, its

contractors, or any entity controlled by INVISTA knew.

107. Failure to Give Notice. IfINVISTA fails to materially comply with the notice

requirements ofthis Section, the Plaintiffs may void 1NVISTA’s claim for Force Majeure as to the specific event for which INVISTA has failed to comply with such notice requirement.

108. Plaintiffs’ Rcponse. The United States, after an opportunity for consultation with the Applicable Co-Plaintiff; shall notify INVISTA in writing regarding iNVISTA’s claim of

Force Majeure within twenty (20) business days ofreceipt ofthe notice provided under Paragraph 105. Ifthe Plaintiffs agree that a delay in or an impediment to performance has been

or will be caused by a Force Majeure Event, the Parties shall stipulate to an extension of

deadline(s) for performance ofthe affected compliance requirement(s) by a period not to exceed the delay actually caused by the event. In such circumstances, an appropriate modificatiàn shall be made pursuant to Section XXII (Modification) ofthis Consent Decree.

109. Disagreement. Ifthe Plaintiffs do not accept INVISTA’s claim of Force Majeure,

or ifthe Parties cannot agree on the length ofthe delay actually caused by the Force Majeure Event, the matter shall be resolved in accordance with Section XV (Dispute Resolution) ofthis Consent Decree.

110. Burden of Proof. In any dispute regarding Force Majeure, INVISTA shall bear the burden of proving that any delay in performance or any other violation of any requirement of this Consent Decree was caused by or will be caused by a Force Majeure Event. INVISTA shall also bear the burden of proving that ENVISTA materially complied with the notice requirements ofthis Section and the burden of proving the anticipated duration and extent of any delay(s) attributable to a Force Majeure Event. An extension of one compliance date based on a

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Force Majeure Event.

112. Potential Force Maieurc Events. The Parties agree that, depending upon the

circumstances related to an event and INVISTA’s response to such circumstances, the kinds of

events listed below are among those that could qualify as force majeure within the meaning of

this Section: construction, labor, or equipment delays; Malfunction of a Unit or emission control

device; unanticipated fuel supply or pollution control reagent/catalyst delivery interruptions; acts

ofGod; and acts ofwar or terrorism. Depending upon the circumstances and Defendants’

response to such circumstances, failure of a permitting authority to issue a necessary permit in a

timely fashion may constitute force majeure where the failure ofthe permitting authority to act is

beyond the control ofJNVISTA and INVISTA has taken all steps available to it to obtain the

necessary permit, including, but not limited to: submitting a complete permit application;

responding to requests for additional information by the permitting authority in a timely fashion;

and accepting lawful permit terms and conditions. As part ofthe resolution of any matter

submitted to this Court under Section XV (Dispute Resolution) ofthis Consent Decree regarding

a claim ofForce Majeure, the Parties by agreement, or this Court by order, may in appropriate

circumstances extend or modify the schedule for completion ofwork underthis Consent Decree

to account for the delay in the work that occurred as a result of any delay or impediment to

performance agreed to by the United States and the Applicable Co-Plaintiffand approved by the

V Court. 1NVISTA shall be liable for stipulated pen4lties for its failure thereafter to complete the

work in accordance with the extended or modified schedule. -

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XV. DISPUTE RESOLUTION

113. In the event that the United States and the applicable Permitting Authority make

differing determinations or take differing actions that affect INVISTA’s rights or obligations

under this Consent Decree, the final decision ofthe United States shall be binding.

114. The dispute resolution procedure required herein shall be invoked by one Party

giving written notice to the other Parties advising of a dispute pursuant to this Section. The

notice shall describe the nature ofthe dispute and shall state the notic:ing Party’s position with

regard to such dispute. The Party receiving such a notice shall acknowledge receipt ofthenotice, and the Parties in dispute shall expeditiously schedule a meeting to discuss the dispute

informally not later than fourteen (14) days following receipt ofsuch notice.

115. Disputes submitted to dispute resolution under this Section shall, in the first

instance, be the subject of informal negotiations among the disputing Parties. Such period of

informal negotiations shall not extend beyond thirty (30) calendar days from the date ofthe first

meeting among the disputing Parties’ representatives unless they agree in writing to shorten or

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negotiation period, the Plaintiffs shall provide INVISTA with a written summary oftheir position regarding the dispute. The written position provided by the Plaintiffs shall be

considered binding unless, within forty-five (45) calendar days thereafter, INVISTA seeks

judicial resolution ofthe dispute by filing a petition with this Court. The Plaintiffs may respond

to the petition within forty-five (45) calendar days offiling.

117. Where the nature ofthe dispute is such that a more timely resolution ofthe issue

is required, the time periods set out in this Section may be shortened by the Court upon motion ofone ofthe Parties to the dispute.

118. As part ofthe resolution of any dispute under this Section, in appropriate

circumstances the disputing Parties may agree, or this Court may order, an extension or

modification ofthe schedule for the completion ofthe activities required under this Consent

Decree to account for the delay that occurred as a result of dispute resolution. INVISTA shall be

liable for stipulated penalties for its failure thereafter to complete the work in accordance with

the extended or modified schedule, provided that INVISTA shall not be precluded from asserting -that a Force Majeure Event has caused or may cause a delay in complying with the extended or

modified schedule. :

119. The Court shall decide all disputes pursuant to applicable principles of law for

resolving such disputes. In their initial filings with the Court under Paragraph 116, the disputing Parties shall state their respective positions as to the applicable standard oflaw for resolving the particular dispute.

120. The Court shall not draw any inferences nor establish any presumptions adverse

to any disputing Party as a result ofinvocation ofthis Section or the disputing Parties’ inability

to reach agreement.

XVI. PERMITS

121. Unless expressly stated otherwise in this Consent Decree, in any instance where

otherwise applicable law or this Consent Decree requires INVISTA tD secure a permit to authorize construction or operation of any device, including all preconstruction, construction,

and operating permits required under state or local law, INVISTA shall make such application in

a timely manner. The Plaintiffs will use their best efforts to expeditiously review all permit applications submitted by ENVISTA in order to meet the requirements ofthis Consent Decree.

Nothing in this Consent Decree shall prevent INVISTA from qualifying for South Carolina’s

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requests for additional information by the permitting authorities. Any failure by INVISTA tosubmit a timely permit application for any Unit shall bar any use by TNVISTA of Section XIV

(Force Majeure) ofthis Consent Decree, where a Force Majeure claim is based on permitting

delays.

123. Notwithstanding the reference to Title V or other federally enforceable permits in

this Consent Decree, the enforcement ofsuch permits shall be in accordance with their ownterms and the Clean Air Act. The Title V or other federally enforceable permits shall not beenforceable under, this Consent Decree, although any term or limit established by or under this

Consent Decree shall be enforceable under this Consent Decree rega:rdless ofwhether such term

has or will become part of a Title V or other federally enforceable permit subject to the terms of

Section XXVII (Termination ofConsent Decree) ofthis Consent Decree.

124. Obtaining Permit Limits for Consent Decree Emission Limits and Standards That

Are Effective Upon Date ofEntry. Within 180 days after the Entry I)ate for the Camden,

Chattanooga, and Seaford Facilities, and, to the extent applicable, within 270 days after the EntryDate for the Victoria and Orange Facilities, 1NVISTA shall amend any applicable Title V permit

application, or apply for amendments ofits Title V permits, to include all Unit-specific

performance, operational, maintenance, and.control technology requirements established by this

Consent Decree and effective upon the Date ofEntry including, but riot limited to, emission

rates, removal efficiencies, fuel limitations, and tonnage limitations.

125. Obtaining Permit Limits for Consent Decree Emission Limits and Standards That

Become Effective After Date ofEntry. Within one year from the commencement of operation ofeach emission control technology to be installed, upgraded, or operated on a Unit under this

Consent Decree, INVISTA shall apply to include the following requirements and limitations

enumerated in this Consent Decree in either a federally enforceable operating permit issuedunder the applicable SIP or amendments to the applicable SiP: (a) any applicable 30-Day Rolling

Average Emission Rate, 24-Hour Rolling Average Emission Rate, Removal Efficiency, or 30-Day or 12-Month Roiling Average Emissions Rate; (b) any applicable tonnage limitations; and

(c) any applicable fuel limitations set forth in this Consent Decree.

126. For each Unit, INVISTA shall provide EPA and the Permitting Authority with a

copy of each application for a permit to address or comply with any provision ofthis ConsentDecree, as well as a copy of any permit proposed as a result ofsuch application, to allow for

timely participation in any public comment opportunity.

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XVII. INFORMATION COLLECTION AND RETENTION

128. Any authorized representative ofthe United States or Permitting Agency,

including their attorneys, contractors, and consultants, upon presentation of credentials, shall

have a-right of entry upon the premises ofINVISTA’s Acquired Facilities at any reasonable timefor the purpose of:

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

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

with the terms ofthis Consent Decree;

c. obtaining samples and, upon request, splits of any samples taken by TNVISTA or

its representatives, contractors, or consultants; and

d. assessing INVISTA’s compliance with this Consent Decree.

129. INVISTA shall retain, and instruct its contractors and agents to preserve all nonidentical copies of all records and documents (including records and documents in electronic

form) now in its or its contractors’ or agents’ possession or control, and that directly relate to

INVISTA’s performance of its obligations under this Consent Decree until December 31, 2018.

This record retention requirement shall apply regardless of any corporate document retention

policy to the contrary.

130. All information and documents submitted by INVISTA pursuant to this Consent

Decree shall be subject to any requests under applicable law providing public disclosure of

documents unless (a) the information and documents are subject to legal privileges or protectionor (b) INVISTA claims and substantiates in accordance with 40 C.F.R. Part 2 or corresponding

applicable state or local laws that the information and documents contain confidential business

information.

131. Nothing in this Consent Decree shall limit the authority ofthe EPA to conduct

tests and inspections at INVISTA’s Acquired Facilities under Section 114 ofthe Clean Air Act,42 U.S.C. § 7414, or any other applicable federal, state or local laws, regulations or permits.

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As to the United States:Chief, Environmental Enforcement Section

Environment and Natural Resources Division

U.S.. Department ofJustice

P.O. Box 7611, Ben Franklin Station

Washington, D.C. 20044-7611

DJ# 90-5-2-1-08085

As to EPA:

Director, Special Litigation and Projects Division

Office ofEnforcement and Compliance Assurance

U.S. Environmental Protection Agency

Ariel Rios Building, Mail Code 2248-A

1200 Pennsylvania Ave., N.W

Washington, D.C. 20460

with a hard copy to

Director, Air Enforcement Division

Office of Enforcement and Compliance AssuranceU.S. Environmental Protection Agency

Ariel Rios Building, Mail Code 2242-A

1200 Pennsylvania Avenue, N.W.

Washington, DC 20460

and an electronic copy to

burke.shaun@epa.gov

m i1ton.philipepa.gov

EPA Region 3:

Chief, Enforcement and Compliance Branch

Office of Enforcement, Compliance & Environmental JusticeMail Code: 3ECIOEPA Region 3

1650 Arch Street

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U.S. EPA Region 4

61 Forsyth Street, S.W.

Atlanta, Georgia 30303-8960

EPA Region 6:

Associate Director, Air, Toxics, and Inspection Coordination Branch (6 EN-A)

U.S. EPA Region 6

1445 Ross Avenue

Dallas, Texas 75202-2733

As to the State of Delaware:Valerie M. Satterfield

Deputy Attorney General

Delaware Department ofJustice

102 W. Water Street, 3 Floor

Dover, DE 19904

All Mirzakhalili, Administrator

Air Quality Management

Department ofNatural Resources

& Environmental Control

156 S. State Street

Dover, DE 19901

Joanna French, Program ManagerAir Quality Management

Department ofNatural Resources

& Environmental Control

156 S. State Street

Dover,DE 19901

As to the South Carolina Department of Health and Environmental Control:

Director, Air Compliance Management Division

Bureau of Air Quality

SC Department of Health and Environmental Control

2600 Bull Street

Columbia, SC 29201

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Chattanooga, Tennessee 37416-3638

As to INVISTA:

General Counsel11’1VISTA, S.à r.l.

4123 East 37th Street North

Wichita KS 67220

Director, EH&S

INVISTA, S.à r.I.

4123 East 37th Street North

Wichita KS 67220

133. All notifications, communications or submissions made pursuant to this Section

shall be sent either by: (a) overnight mail or delivery,service; (b) certified or registered mail,

return receipt requested; or (c) electronic transmission, unless the recipient is not able to review

the transmission in electronic forni. All notifications, communications and transmissions (a) sentby overnight, certified or registered mail shall be deemed submitted on the date they are

postmarked, or (b) sent by overnight delivery service shall be deemed submitted on thedate they

are delivered to the delivery service. Ifthe date for submission of a report, notification,submission, or other communication falls on a Saturday, Sunday, or legal holiday, the report,

notification, submission, or other communication will be deemed timely if it is submitted by the

next business day. All notifications, communications, and submissions made by electronicmeans shall be electronically signed and certified, and shall be deemDd submitted on the date that

INVISTA receives written acknowledgment ofreceipt ofsuch transriission.

134. Any Party may change either the notice recipient or the address for providing

notices to it by serving the other Parties with a notice setting forth such new notice recipient or

address.

XIX. SALES OR TRANSFERS OF OWNERShIP INTERESTS

135. If[NVISTA proposes to sell or transfer an Ownership Interest to an entity not

affiliated with INVISTA (“Third Party Purchaser”), it shall advise the Third Party Purchaser inwriting ofthe existence ofthis Consent Decree prior to such sale or transfer, and shall send a

copy ofsuch written notification to the Plaintiffs pursuant to Section XVIII (Notices) ofthis

Consent Decree at least thirty (30) days before such proposed sale or transfer.

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modify the Consent Decree to make the terms and conditions ofthe Consent Decree applicable

to the transferee. INVISTA shall be released from the obligations arid liabilities ofthis Consent

Decree applicable to the transferred Ownership Interest unless one of the Plaintiffs opposes themotion and the Court fmds that the Third Party Purchaser does not have either the technical or

financial ability to assume the obligations and liabilities ofthe Consent Decree.

137. This Consent Decree shall not be construed to impede the transfer of any

Ownership Interests between iNVISTA and any Third Party Purchaser as long the requirementsofthis Consent Decree are met. This Consent Decree shall not be construed to prohibit a

contractual allocation — as between INVISTA and any Third Party Prchaser of Ownership

Interests — ofthe burdens of compliance with this Decree, provided that both INVISTA and such

Third Party Purchaser meet the requirements ofthis Section.

138. Notwithstanding the foregoing, however, INVISTA may not assign, and may not

be released from, any obligation under this Consent Decree that is not specific to the purchased

or transferred Ownership Interests, including the obligations set forth in Section XI (ENVISTA’s

Certifications) and Section IX (Payment ofCivil Penalties). INVISTA may propose and the

Plaintiffs mayagree to restrict the scope ofjoint and several liability ofany purchaser or

transferee for any obligations ofthis Consent Decree that are not specific to the transferred or

purchased Ownership Interests, to the extent such obligations may be adequately separated in an

enforceable manner.

XX. EFFECTIVE DATE

139. The effective date ofthis Consent Decree shall be the Date of Entry.

XXI. RETENTION OF JUR1SDICTIO

140. Continuing Jurisdiction. The Court shall retain jurisdiction ofthis case after entry

ofthis Consent Decree to enforce compliance with the terms and conditions ofthis Consent

Decree and to take any action necessary or appropriate for its interpretation, construction,

execution, modification, or adjudication ofdisputes. During the term ofthis Consent Decree,

any Party to this Consent Decree may apply to the Court for any relief necessary to construe or

effectuate this Consent Decree.

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Decree will be effective when signed in writing by EPA and INVISTA. The United States willfile nOn-material modifications with the Court on a periodic basis. For purposes ofthis

Paragraph, non-material mOdifications include but are not limited to modifications to the

frequency ofreporting obligations and modifications to schedules that do not extend the date for

compliance with emissions limitations following the installation ofcontrol equipment or the

completion of a catalyst additive program, provided that such changes are agreed upon in writing

between EPA and INVISTA. Material modifications to this Consent Decree will be in writing,

signed by EPA, the Applicable Co-Plaintiff, and INVISTA, and will be effective upon approvalby the Court.

XXIII. PUBLIC COMMENT

142. The Parties agree and acknowledge that final approval by the United States and

entry ofthis Consent Decree is subject to the procedures of28 C.F.R. § 50.7, which provides for

notice ofthe lodging ofthis Consent Decree in the Federal Register, an opportunity for public

comment, and the right ofthe United States to withdraw or withhold consent ifthe comments

disclose facts or considerations which indicate that the Consent Decree is inappropriate,improper or inadequate. INVISTA shall not oppose entry ofthis Consent Decree by this Court

or challenge any provision ofthis consent Decree unless theUnitedStates has notified V

INVISTA, in writing, that the United States no longer supports entry ofthe Consent Decree. Ifthe United States withdraws or withholds consent, any other Plaintiff may also withdraw or

withhold consent.

XXIV. GENERAL PROVISIONS

143. This Consent Decree shall be considered an enforceafle judgment for purposes of

post-judgment collection in accordance with Rule 69 ofthe Federal Rules ofCivil Procedure,

and other applicable federal authority.

144. This Consent Decree constitutes the final, complete arid exclusive agreement and

understanding among the Parties with respect to the settlement embodied in this Consent Decree,

and supersedes all prior agreements and understandings, whether oral or written, concerning thesettlement embodied herein except for the Final Audit Report as referenced in Appendices A, B,

and C to this Decree. No other document, nor any representation, inducement, agreement,understanding or promise, constitutes any part ofthis Decree or the settlement it represents, nor

shall it be used in construing the terms ofthis Decree.

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146. This Consent Decree in no way affects or relieves INVISTA ofits responsibility

to comply with all applicable federal, state and local laws, regulations and permits. Defendantagrees that it will not assert in any federal, state or local criminal, civil or administrative

proceeding, hearing or other permitting, licensing or procedural matter, that its compliance with

this Consent Decree is a defense in law or equity to any civil or criminal action commenced by

the Plaintiffs pursuant to any such federal, state or local law, regulation or permit, except as

expressly provided in this Consent Decree.

147. The United States retains the right to seek to enforce the terms ofthis Consent

Decree, and to take any action authorized by federal, state, or local law not inconsistent with the

terms ofthis Consent Decree to achieve or maintain INVISTA’s compliance with the terms andconditions ofthis Consent Decree.

148. Effect of Shutdown. .The permanent Shutdown of a Unit and the surrender of all

air permits or air permit conditions for that Unit will be deemed to satisfS’ all requirements of

Sections IV, V, VI, and VII ofthis Consent Decree applicable only 1:0 that Unit on and after the

later of: (i) the date ofthe Shutdown ofthe Unit; or (ii) the date ofthe surrender of all air

permits/permit conditions. The permanent Shutdown of a Facility and the surrender of all air

permits for that Facility will be deemed to satisfS’ all requirements of Sections IV, V, VI, and VII

ofthis Consent Decree applicable to that Facility on and after the later of (i) the date ofthe

Shutdown ofthe Facility; or (ii) the date ofthe surrender of all air permits. This Paragraph does

not affect iNVISTA’s requirements for the Facility where a Shutdown Unit is located (including

INVISTA’s obligation to meet the 12-month rolling averages) unless each applicable Unit at the

Facility is permanently Shutdown.

XXV. COSTS OF SUIT

149. Each Party in this action shall bear its own costs, including attorney’s fees.

XXVI. ENTRY OF CONSENT DECREE

150. JNVISTA consents to the entry ofthis Consent Decre. unless the United States

notifies INVISTA, in writing, that the United States no longer suppo:ts the entry ofthe Consent

Decree.

151. If for any reason this Court should decline to approve this Consent Decree in the

form presented or the United States no longer supports entry ofthe Consent Decree, this Consent

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