### IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

__________________________________________) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) No. 1:11

-cv- 13330

-TLL

-CEB ) THE DOW CHEMICAL COMPANY, ) ) Defendant. ) )

______________ ___________________________) CONSENT DECREETABLE OF CONTENTS

I. JURISDICTION AND VENUE .............. ............................... 3 II. APPLICABILITY .......................... ..............................4 III. DEFINITIONS ............................ ..............................6 IV. CIVIL PENALTY .......................... .............................12 V. COMPLIANCE REQUIREMENTS .......... ............................... 13 A. Applicability ofthe Enhanced LDAR Program........................... 13 B. Facility-Wide LDAR Document ....................... .............. 13 C. Monitoring Frequency and Equipment .................. .............. 14 D. Leak Detection and Repair Action Levels ............................... 16 E. Repairs ............................. .............................18 F. Delay ofRepair ....................... .............................20 G. Valve and Connector Replacement and Improvement Program ........... .. 20 H. Management ofChange ................ .............................28 I. Training ............................ .............................28 J. Quality Assurance( "QA") /Quality Control( "QC")........................ 29 K. LDAR Audits and Corrective Action ... ............................... 30 L. Certification ofCompliance .......... ............................... 34 M. Recordkeeping ....................... .............................34 VI. REPORTING REQUIREMENTS ............ ............................... 35 VII. LOW GLOSS ABS UNIT .................. ............................... 36 VIII. STIPULATED PENALTIES ................ ............................... 41 IX. FORCE MAJEURE ......................... .............................49 X. DISPUTE RESOLUTION ................... ............................... 52 XI. INFORMATION COLLECTION AND RETENTION .......................... 54 XII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS ..................... 56 XIII. COSTS ................................... .............................57 XIV. NOTICES ................................. .........D...................57 XV. EFFECTIVE DATE ........................ .............................59XVI. RETENTION OF JURISDICTION ......... ............................... 60

XVII. MODIFICATION ........................ .............................60 XVIII. TERMINATION ........................ ............................... 60 XIX. PUBLIC PARTICIPATION ...................... . ....................... 61 XX. SIGNATORIES/SERVICE ................ ............................... 61 XXI. INTEGRATION ........................... .............................62 XXII. FINAL JUDGMENT ....:................ ............................... 63

ii

### TABLE OF APPENDICES

Appendix A Factors to be Considered and Procedures to be Followed to Claim

Commercial Unavailability

iiiCONSENT DECREE

WHEREAS,Plaintiffthe United States ofAmerica ( "United States"), on behalfofthe United States Environmental Protection Agency ( "EPA"),has filed a complaint against Defendant The Dow Chemical Company ( "Dow")concurrently with the lodging ofthis Consent Decree; WHEREAS Dow owns a manufacturing and research site (the "Facility")known by Dow

as "Michigan Operations," the headquarters ofwhich is located at 1790 Building, Washington Street, Midland, Michigan; at this Facility, various chemicals are manufactured,formulated, or otherwise processed; WHEREAS,the Complaint alleges that Dow violated Section 112 ofthe Clean Air Act ( "CAA"), 42 U.S.C. § 7412,and the following implementing regulations at the Facility: 40 C.F.R. Part 61, Subpart F (National Emission Standard for Vinyl Chloride); 40 C.F.R. Part 61, Subpart V (National Emission Standard for Equipments Leaks (Fugitive Emission Sources)); 40 C.F.R. Part 61, Subpart FF (National Emission Standard for Benzene Waste Operations); 40 C.F.R.Part 63,Subpart F (the National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry); 40 C.F.R. Part 63,Subpart G (the National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels,Transfer Operations,and Wastewater); 40 C.F.R. Part 63, Subpart H (the National Emission Standards for Organic Hazardous Air Pollutants for Equipment Leaks); 40 C.F.R. Part 60,Appendix A,Method 21 40 C.F.R. Part 63, Subpart GGG (the National Emission Standards for Pharmaceuticals Production); 40 C.F.R. Part 63, Subpart JJJ (National Emission Standards for Hazardous Air Pollutant Emissions: Group IV Polymers and Resins); 40 C.F.R. Part 63, Subpart MMM (the National Emission Standards for Hazardous Air Pollutants for Pesticide Active Ingredient Production); and

### 40 C.F.R.Part 63,Subpart UUUU (the National Emission Standards for Hazardous Air Pollutants

for Cellulose Products Manufacturing); WHEREAS,the Complaint alleges that Dow violated Section 301(a)ofthe Clean Water Act("CWA"), 33 U.S.C. § 1311(a);. WHEREAS,the Complaint alleges that Dow violated Section 3005(a)ofthe Resource Conservation and Recovery Act("RCRA"),42 U.S.C. § 6925(a),and the federally-authorized state provisions found at Michigan Administrative Code("MAC")Rule 299.9615; WHEREAS,Dow does not admit any liability to the United States arising out ofthe transactions or occurrences alleged in the Complaint and nothing in the Complaint,nor in this Consent Decree,nor in the execution and implementation ofthis Consent Decree shall be treated
as an admission ofany violation offederal or state statutes or regulations in any litigation or forum whatsoever, except that the terms ofthis Consent Decree,and Dow's failure to comply with the terms and conditions thereofmay be used by the United States in any action or dispute resolution proceeding to enforce the terms ofthis Consent Decree or as otherwise permitted by law; WHEREAS,in the course ofthe negotiations ofthis Consent Decree,without any admission ofliability or ofviolation oflaw,Dow undertook numerous actions to address all ofthe allegations in the Complaint and the Findings and Notice ofViolations (as defined in Paragraph 9.r), including but not limited to performing initial compliance demonstrations for certain condensers; submitting design evaluations for certain condensers and scrubbers; recalculating
some emissions estimations; equipping lines with secondary closure devices; monitoring certain connectors that previously had not been monitored; undertaking enhanced training; correcting alleged recordkeeping and reporting errors; submitting a revised National Pollutant Discharge

2Elimination System ("NPDES")permit application;repairing cracks in a secondary containment

area; and removing several tanks from hazardous waste service; WHEREAS,the United States and Dow ("Parties")recognize, and this Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation between the Parties,and that this Consent Decree is fair,reasonable, and in the public interest; NOW, THEREFORE,before the taking ofany testimony,without the adjudication or admission ofany issue offact or law except as provided in Section I, and with the consent ofthe Parties, IT IS HEREBY ADJUDGED,ORDERED,AND DECREED as follows: I. JURISDICTION AND VENUE This Court has jurisdiction over the subject matter ofthis action pursuant to 28 U.S.C. §§ 1331, 1345,and 1355 Section 113(b)ofthe CAA,42 U.S.C. § 7413(b); Section 309(b) ofthe CWA,33 U.S.C. § 1319(b); Section 3008(a)(1)ofRCRA,42 U.S.C.§ 6928(a)(1); and over the Parties. Venue lies in this District pursuant to Section 113(b)ofthe CAA,42 U.S.C. § 7413(b); Section 309(b)ofthe CWA,33 U.S.C. § 1319(b); Section 3008(a)(1)ofRCRA,42 U.S.C. § 6928(a)(1); and 28 U.S.C. §§ 1391(b)and (c)and 1395(a),because Dow resides and is located in this judicial district and the violations alleged in the Complaint are alleged to have occurred in thisjudicial district. For purposes ofthis Decree,or any action to enforce this Decree, Dow consents to this Court's jurisdiction over this Decree, over any action to enforce this Decree, and over Dow. Dow also consents to venue in this judicial district. 2. For purposes ofthis Consent Decree, Dow does not contest that the Complaint states claims upon which relief may be granted pursuant to Section 112 ofthe CAA,42 U.S.C.

3§ 7412; Section 301 ofthe CWA,33 U.S.C. § 1311; Section 3005(a)ofRCRA,42 U.S.C.

§ 6925(a); and MAC R 299.9615. 3, Notice ofthe commencement ofthis action has been given to the State ofMichigan

as required by Section 113(b)ofthe CAA,42 U.S.C. § 7413(b); Section 309(b)ofthe CWA,33 U.S.C. § 1319(b); and Section 3008(a)(2)ofRCRA,42 U.S.C. § 6928(a)(2) II. APPLICABILITY 4. The obligations ofthis Consent Decree apply to and are binding upon the United States and upon Dow and any successors,assigns,and other entities or persons otherwise bound by law. No transfer ofownership or operation ofany equipment at the Facility that is subject to Leak Detection and Repair ("LDAR"), as defined in Subparagraph 9.t, whether in compliance with the procedures ofParagraphs 5 or 6 or otherwise, shall relieve Dow ofits obligations to ensure that the terms ofthis Consent Decree are implemented unless and until:

a. The transferee agrees in writing to undertake the applicable obligations required by this Consent Decree with respect to equipment at the Facility that is subject to LDAR, and to intervene as a defendant in this action for the purpose ofbeing bound by the applicable terms ofthis Consent Decree; and

b. The United States,after receiving information sufficient to demonstrate that the transferee has the technical and financial means to comply with the applicable obligations of this Consent Decree, consents in writing to substitute the transferee for Dow with respect to such obligations; and

c. The Court approves such substitution.

06. By no less than 30 days prior to the transfer ofthe ownership or operation of

equipment at the Facility that is subject to LDAR,Dow shall provide a copy ofthis Consent Decree to the proposed transferee and also shall provide written notice ofthe prospective transfer, together with a copy ofall portions ofthe proposed written agreement between Dow and the prospective transferee related to environmental compliance,to EPA,the United States Attorney for the Eastern District of Michigan,and the United States Department ofJustice, in accordance with Section XIV ofthis Decree (Notices). Any attempt to transfer ownership or operation ofany equipment at the Facility that is subject to LDAR without complying with this Paragraph constitutes a violation ofthis Decree. 7. Dow shall provide a copy ofall relevant portions ofthis Consent Decree to all officers, employees,and agents whose duties might reasonably include compliance with any provision ofthis Decree, as well as to any contractor retained to perform work required under this Consent Decree. The foregoing requirement may be satisfied by hard copy,electronic copy,or by providing on-line access with notice to the affected personnel. Dow shall condition any such contract upon performance ofthe work in conformity with the applicable terms ofthis Consent Decree.8. In any action to enforce this Consent Decree,Dow shall not raise as a defense the failure by any ofits officers, directors, employees,agents, or contractors to take any actions necessary to comply with the provisions ofthis Consent Decree. In any action to enforce this Consent Decree at the Low Gloss ABS unit, Dow also shall not raise as a defense its inability to perform any obligations related to that unit based on a limitation in its ownership and/or operational interest in that unit.III. DEFINITIONS

9. Terms used in this Consent Decree that are defined in the CAA,CWA, and RCRA
or in federal and state regulations promulgated pursuant to the CAA,CWA and RCRA shall have the meaning assigned to them in the CAA,CWA and RCRA or such regulations, unless otherwise provided in this Decree. Whenever the terms set forth below are used in this Consent Decree,the following definitions shall apply:

a. "Annual" or "annually" shall mean a calendar year, except as otherwise provided in applicable LDAR provisions.

b. "Average" shall mean the arithmetic mean.
c. "CAP"shall mean the Corrective Action Plan described in Paragraph 50 of this Consent Decree.

action. d. "Complaint" shall mean the Complaint filed by the United States in this

"Consent Decree" or "Decree" shall mean this Consent Decree and all appendices attached hereto,but in the event ofany conflict between the text ofthis Consent Decree and any Appendix,the text ofthis Consent Decree shall control.

£ "Covered Equipment" shall mean all Covered Types ofEquipment in all Covered Process Units.

g. "Covered Process Units" shall mean the unit that produces ETHOCEL TM brand cellulose ethers (identified as EGBS)and the Low Gloss ABS Unit (identified as EG31).

h. "Covered Types ofEquipment"shall mean all valves (except pressure relief valves), connectors,pumps,agitators, and OELs in light liquid or gas/vapor service that areregulated under any "equipment leak"provisions of40 CFR Part 61 or 63 or a state or local LDAR

program. "Date ofLodging ofthis Consent Decree" or "Date ofLodging" shall mean the date that the United States files a "Notice ofLodging"ofthis Consent Decree with the Clerk of this Court for the purpose ofproviding notice and comment to the public.

"Day," for purposes ofrequirements uniquely imposed by the ELP and not by any applicable LDAR provisions, shall mean a calendar day. In computing any period oftime under this Consent Decree for submittal ofreports, where the last day would fall on a Saturday, Sunday,or federal or state holiday,the period shall include the next day that is not a Saturday, Sunday,or federal or state holiday. For all other purposes,"day"shall have the meaning provided in the applicable LDAR provisions.

Date). k.. "DOR"shall mean Delay ofRepair.

"Dow" shall mean The Dow Chemical Company.

m. "Effective Date" shall have the meaning given in Section XV (Effective

n. "Enhanced LDAR Program" or "ELP"shall mean the provisions in this Consent Decree set forth at Paragraphs 13 - 58 ofthis Decree.

o. "EPA" shall mean the United States Environmental Protection Agency and any ofits successor departments or agencies.

p. "Extension," for purposes of Subparagraphs 9.y.(i)(b) and 9.y.(ii)(b), shall

mean that: (i)the tested and untested valves were produced by the same manufacturer to the same
or essentially equivalent quality requirements; (ii)the characteristics ofthe valve that affect sealing performance (e.g., type ofvalve, stem motion, tolerances, surface finishes, loading

7

### arrangement,and stem and body seal material,design,and construction)are the same or

essentially equivalent as between the tested valve and the untested valve; and (iii) the temperature and pressure ratings ofthe tested valve are at least as high as the temperature and pressure ratings ofthe untested valve.

q. "Facility" shall mean the contiguous manufacturing and research site known by Dow as "Michigan Operations," the headquarters ofwhich is located at 1790 Building, Washington Street, Midland,Michigan.

"Findings and Notice ofViolations" shall mean the following findings and notice ofviolations issued by EPA Region 5: EPA-5-06-MI-8 (CAA) (June 28,2006); EPA-5-07-MI-9 (CAA)

(June 29,2007);EPA-5-08-MI-01 (CAA) (November 9,2007); and RCRA Notice ofViolation from Willie H.Harris, EPA,to David Graham,Dow,dated November 9, 2007.

s. "First Maintenance Shutdown"shall mean the first Maintenance Shutdown that occurs no sooner than fifteen months after the Effective Date ofthis Consent Decree.

"LDAR"or "Leak Detection and Repair" shall mean the leak detection and repair activities required by any "equipment leak" provisions of40 CFR Part 61 or 63. LDAR also shall mean any state or local equipment leak provisions that: (i)require the use ofMethod 21 to monitor for equipment leaks and also require the repair ofleaks discovered through such monitoring; and (ii) are intended to minimize emissions ofhazardous air pollutants or other substances identified on the basis oftoxicity (e.g., toxic air contaminants).

u. "LDAR Audit Commencement Date" or "Commencement ofan LDAR Audit" shall mean the first day ofthe on-site inspection that accompanies an LDAR audit.v. "LDAR Audit Completion Date"or "Completion ofan LDAR Audit" shall

mean the date that is four (4)months after the LDAR Audit Commencement Date.

w. "LDAR Personnel" shall mean all Dow contractors and employees who perform LDAR monitoring, LDAR data input,maintenance ofLDAR monitoring devices, leak repairs on equipment subject to LDAR,and/or any other field duties generated by LDAR requirements.

as follows:

follows: x. "Low-Emissions Packing" or "Low-E Packing" shall mean either (i)or (ii)

(i) A valve packing product, independent ofany specific valve,for which the manufacturer has issued a written warranty that the packing will not emit fugitives at greater than 100 ppm,and that, ifit does so emit at any time in the first five years,the manufacturer will replace the product; provided however,that no packing product shall qualify as "Low-E" by reason of written warranty unless the packing first was tested by the manufacturer or a qualified testing firm pursuant to generally-accepted good engineering practices for testing fugitive emissions and the results ofthe testing reasonably support the warranty;

~•~~ (ii) A valve packing product,independent ofany specific valve,that has been tested by the manufacturer or a qualified testing firm pursuant to generally-accepted good engineering practices for testing fugitive emissions,and that,during the test, at no time leaked at greater than 500 ppm,and on Average, leaked at less than 100 ppm. y. "Low-Emissions Valve" or "Low-E Valve" shall mean either (i)or (ii) as

(i) A valve (including its specific packing assembly)for which the manufacturer has issued a written warranty that it will not emit fugitives at greater than 100 ppm,and that, if it does so emit at any time in the first five years, the manufacturer will replace the valve; provided however,that no valve shall qualify as "Low-E"by reason ofwritten warranty unless the valve (including its specific packing assembly)either:

E

### (a) first was tested by the manufacturer or a qualified testing firm pursuant to generally

-accepted good engineering practices for testing fugitive emissions and the results ofthe testing reasonably support the warranty; or 

### (b) is as an Extension ofanother valve that qualified as "Low-E" under Subparagraph 9.y.(i)(a);

or (ii) A valve (including its specific packing assembly)that: (a) Has been tested by the manufacturer or a qualified testing firm pursuant to generally-accepted good engineering practices for testing fugitive emissions and that,during the test, at no time leaked at greater than 500 ppm,and on Average,leaked at less than 100 ppm;or 

### (b) Is an Extension ofanother valve that qualified as "Low-E" under Subparagraph 9.y.(ii)(a).

z. "Maintenance Shutdown"shall mean a shutdown ofa Covered Process Unit that either is done for the purpose ofscheduled maintenance or lasts longer than 14 calendar days.

aa. "Method 21" shall mean the test method found at 40 C.F.R. Part 60, Appendix A,Method 21. To the extent that the Covered Equipment is subject to regulations that modify Method 21,those modifications shall be applicable. To the extent that insulated valves that are Covered Equipment are subject to an alternative monitoring method approved by EPA on July 24,2007,that alternative shall be applicable.

bb. "Month"or "monthly" shall mean calendar month,except as otherwise provided in applicable LDAR provisions.

cc. "OEL"or "Open-Ended Line" shall mean any valve,except pressure relief valves,having one side ofthe valve seat in contact with process fluid and one side open to atmosphere,either directly or through open piping.

10

### dd. "OELCD"shall mean an open-ended valve or line at the closure device.

ee. "Paragraph" shall mean a portion ofthis Consent Decree identified by an Arabic numeral.

ff. "Parties" shall mean the United States and Dow. gg. "Quarter" or "quarterly" shall mean a calendar quarter (January through March,April through June,July through September,October through December)except as otherwise provided in applicable LDAR provisions.

hh. "Repair Verification Monitoring" shall mean the utilization ofmonitoring (or other method that indicates the relative size ofthe leak)within 24 hours after each attempt at repair ofa leaking piece ofequipment in order to ensure that the leak has been eliminated or is below the applicable leak definition in this ELP.

ii. "Screening Value" shall mean the highest emission level that is recorded at each piece ofequipment as it is monitored in compliance with Method 21.



## jj. "Section" shall mean a portion ofthis Consent Decree that has a heading identified by an upper case Roman numeral.

kk. "Subparagraph" shall mean a portion ofa Paragraph ofthis Consent Decree that is identified by a sequential lower-case letter or by a lower-case Roman numeral.

11. "Subsection" shall mean a portion ofa Section ofthis Consent Decree that has a heading identified by a capital letter.

ofEPA. mm. "United States" shall mean the United States ofAmerica,acting on behalf

nn. "Week"or "weekly" shall mean the standard calendar period, except as otherwise provided in applicable LDAR provisions.

11IV. CIVIL PENALTY

10. By no later than 30 days after the Effective Date ofthis Consent Decree,Dow shall pay the sum ofTwo Million, Five

-Hundred Thousand Dollars ($2,500,000)as a civil penalty. Dow shall pay the civil penalty by FedWire Electronic Funds Transfer ( "EFT")to the U.S. Department ofJustice in accordance with written instructions to be provided to Dow,following lodging ofthe Consent Decree,by the Financial Litigation Unit ofthe U.S. Attorney's Office for the Eastern District ofMichigan, 211 W.Fort St, Detroit, MI,4$226. At the time ofpayment, Dow shall send a copy ofthe EFT authorization form,the EFT transaction record,and a transmittal letter: (i)to the United States in the manner set forth in Section XIV ofthis Decree (Notices), (ii)by email to acctsreceivable.CINWD(a~epa.gov; and (iii) by mail to:

EPA Cincinnati Finance Office 26 Martin.Luther King Drive Cincinnati, Ohio 45268 The transmittal letter shall state that the payment is for the civil penalty owed pursuant to the Consent Decree in United States v. The Dow Chemical Company,and shall reference the civil action number,USAO File Number 2008V00788,and DOJ case number 90-5-2-1-08935. 11. Ifany portion ofthe civil penalty due to the United States is not paid when due, Dow shall pay interest on the amount past due,.accruing from the Effective Date through the date ofpayment,at the rate specified in 28 U.S.C. § 1961. Interest payment under this Paragraph shall be in addition to any stipulated penalty due. 12. Dow shall not deduct any penalties paid under this Decree pursuant to this Section

or Section VIII (Stipulated Penalties)in calculating its federal income tax.

12V. COMPLIANCE REQUIREMENTS

A. Applicability of the Enhanced LDAR Program 13. The requirements ofthis ELP shall apply to all Covered Equipment and the requirements ofParagraphs 14 and 51 shall apply to all equipment at the Facility that is regulated under LDAR. The requirements ofthis ELP are in addition to,and not in lieu of,the requirements ofany other LDAR regulation that maybe applicable to a piece ofCovered Equipment. Ifthere is

a conflict between an LDAR regulation and this ELP,Dow shall follow the more stringent ofthe requirements. B. Facility-Wide LDAR Document 14. By no later than three months after the Effective Date ofthis Consent Decree,Dow shall develop afacility-wide document that describes: (i)the facility-wide LDAR program applicability ofregulations to process units and/or specific equipment; leak definitions; monitoring frequencies); (ii)a tracking program Management ofChange)that ensures that

new pieces ofequipment added to the Facility for any reason are integrated into the LDAR program and that pieces ofequipment that are taken out ofservice are removed from the LDAR program;(iii) the roles and responsibilities ofall employee and contractor personnel assigned to LDAR functions at the Facility;(iv)how the number ofpersonnel dedicated to LDAR functions is sufficient to satisfy the requirements ofthe LDAR program; and (v)how the Facility plans to implement this ELP. Dow shall review this document on an annual basis and update it as needed by no later than December 31 ofeach year.

13

### C. Monitoring Frequency and Equipment

15. Beginning no later than six months after the Effective Date,for all Covered Equipment,Dow shall comply with the following periodic monitoring frequencies unless: (i)more frequent monitoring is required by federal, state, or local laws or regulations; or (ii) the relevant Covered Process Unit has been permanently shut down:

a. Valves

— Quarterly b. Connectors

— Annually Pumps/Agitators

— Monthly,except that monitoring shall not be required for pumps and agitators that are seal-less or that are equipped with a dual mechanical seal system that complies with the requirements of40 C.F.R. § 63.163(e) d. Open-Ended Lines

— Quarterly (monitoring will be done at the closure device; ifthe closure device is a valve,monitoring will be done in the same manner as any other valve, but also shall include monitoring at the end of the valve or line that is open to the atmosphere) Compliance with the monitoring frequencies in this Paragraph 15 is not required when a specific, applicable LDAR provision excludes or exempts,fully or partially, monitoring at a periodic frequency (e.g., an exemption for equipment that is designated as unsafe-to-monitor or difficult-to-monitor or an exemption for pumps that have no externally actuated shaft),provided that Dow satisfies all applicable conditions and requirements for the exclusion or exemption set forth in the regulation. 16. Valves and Connectors that Have Been Replaced,Repacked,or Improved ursuant to Subsection G. For valves and connectors that have been replaced,repacked, or improved pursuant to Subsection G (Valve and Connector Replacement and Improvement Program),Dow may elect to monitor any or all such equipment at the most stringent monitoring frequency required by any LDAR regulation that applies to the piece ofequipment,rather than the frequency

14specified in Paragraph 15 above. Ifany such piece ofequipment is found to have a Screening

Value above the leak definitions in Table 1 ofSubsection V.D,Dow shall monitor that piece of equipment monthly until the piece ofequipment shows no leaks at the leak definition levels in Table 1 ofSubsection V.D for twelve consecutive months. At that time,Dow may commence monitoring at the frequency for that type ofequipment set forth in either Paragraph 15 or Subparagraph 17.a. 17. Alternative Monitoring Frequencies for Valves, Connectors, and Open-Ended Lines after Two Years. At any time after two consecutive years ofmonitoring valves,connectors and open-ended lines pursuant to the requirements ofParagraph 15,Dow may elect to comply with the monitoring requirements set forth in this Paragraph 17 by notifying EPA no later than three months prior to changing to the monitoring frequency specified under this Paragraph. Dow may elect to comply with the monitoring requirements ofthis Paragraph at one or both Covered Process Units but may not make this election for anything less than all pieces ofCovered Equipment ofthe

same type (i.e., valves, connectors, or OELs)in one entire Covered Process Unit. An election to comply with the monitoring requirements of Subparagraph 17.a (for valves, connectors,and/or OELs)must include an election to comply with Subparagraph 17.b; Dow may not elect to comply with Subparagraph 17.a without also complying with Subparagraph 17.b.

a. For Valves, Connectors, and Open-Ended Lines that Have Not Leaked at an~Time for at Least Two Consecutive Years ofMonitoring. For valves, connectors, and open-ended lines that have not leaked at any time for at least the two years prior to electing this alternative, Dow shall monitor valves and open-ended lines one time per year and shall monitor connectors one time every two years. If any leaks are detected during this alternative monitoring schedule or during an LDAR audit or a federal, state or local audit or inspection, Dow immediately shall start monitoring the leaking components pursuant to the requirements of Subparagraph 17.b.

15

### b. For Valves, Connectors, and Open-Ended Lines that Have Leaked at and Time in the Prior Two Years ofMonitoring. For valves, connectors,and open-ended lines that have leaked at any time in the prior two years of monitoring,Dow shall monitor each piece ofequipment monthly until the piece ofequipment shows no leaks for twelve consecutive months,at which time Dow may commence monitoring at the frequency for that type of equipment set forth in Subparagraph 17.a. 18. Beginning no later than six months after the Effective Date,for all Covered Equipment,Dow shall comply with Method 21 in performing LDAR monitoring,using an instrument attached to a data logger (or an equivalent instrument)which directly electronically records the Screening Value detected at each piece ofequipment,the date and time that each Screening Value is taken, and the identification numbers ofthe monitoring instrument and technician. Dow shall transfer this monitoring data to an electronic database on at least a weekly basis for recordkeeping purposes. If, during monitoring in the field, a piece ofCovered Equipment is discovered that is not listed in the data logger,Dow is permitted to monitor the piece ofCovered Equipment and record,by any means available,the Screening Value,the date and time ofthe Screening Value,and the identification number ofthe technician. In such an instance, the failure to initially record the information electronically, in the data logger,does not constitute a violation ofthis Paragraph's requirement to record the required information electronically, provided that Dow thereafter promptly adds the piece ofCovered Equipment and the information regarding the monitoring event to the LDAR database. D. Leak Detection and Reuair Action Levels 19. Action Levels

a. Beginning no later than six months after the Effective Date ofthis Consent Decree and continuing until termination, for all leaks from Covered Equipment detected at or

[[!

### above the leak definitions listed in Table l for the specific equipmenttype, Dow shall perform

repairs in accordance with Paragraphs 21 — 25.

Table 1: Leak Definitions by Equipment Type Equi merit T e Lower Leak Definition pm) Valves 250 Connectors 250 Pum s 500 A itators 1000 Pumps and agitators handling polymerizing monomers 2000

OELs (at the Closure Device) 250

b. For purposes ofthese lower leak definitions,Dow may elect to adjust or not to adjust the monitoring instrument readings for background pursuant to any provisions of applicable LDAR requirements that address background adjustment,provided that Dow corriplies with the requirements for doing so or not doing so.

c. The 1000 ppm leak definition for agitators set forth in Table 1 does not apply to the two agitators identified in Dow's Equipment Maintenance Tracking System with the numbers 760587 and 760594 and located in the Covered Process Unitthat produces ETHOCEL TM 

### brand cellulose ethers. Instead,the regulatory leak definition of 10,000 ppm applies to these agitators. d. The 2000 ppm leak definition for pumps handling polymerizing monomers set forth in Table 1 does not apply to the Sierbath grinder pump located in the Low Gloss ABS Covered Process Unit and identified as P2001 5000 ppm applies to the Sierbath grinder pump. Instead,the regulatory leak definition of

20. Beginning no later than six months after the Effective Date ofthis Consent Decree, for all Covered Equipment and all valves,pumps,agitators, and OELs in heavy liquid service,at

17any time, including outside ofperiodic monitoring,that evidence ofa potential leak is detected

through audio, visual, or olfactory sensing,Dow shall comply with all applicable regulations and, ifrepair is required, with Paragraphs 21 — 25. E. Repairs 21. Except as provided in Subparagraphs 32.d.i and 38.c.i, by no later than 5 days after detecting a leak,Dow shall perform a first attempt at repair. By no later than 15 days after detection,Dow shall perform a final attempt at repair or may place the piece ofequipment on the Delay ofRepair list provided that Dow has complied with all applicable regulations and with the requirements ofParagraphs 22 - 25 and 27. 22. Except as provided in Subparagraphs 32.d.i and 38.c.i, Dow shall perform Repair Verification Monitoring. 23. Repair Attempt for Valves (other than Control Valves)with Screening Values greater than or equal to 100 fpm but less than 250 p~m. For any valve,excluding control valves, that has a Screening Value greater than or equal to 100 ppm but less than 250 ppm,Dow shall make an initial attempt to repair the valve and eliminate the leak by no later than 5 days after detecting the leak. Repair Verification Monitoring shall be performed to determine ifthe repair has been successful. If, upon Repair Verification Monitoring,the Screening Value is less than 250 ppm,no further actions shall be required for that monitoring event for that valve. If, upon Repair Verification Monitoring,the Screening Value is greater than or equal to 250 ppm,Dow shall undertake the requirements for repair required by this Consent Decree (and all deadlines for such requirements shall be based on the date ofthe failed Repair Verification Monitoring),but Dow shall not be required to replace or repack the valve pursuant to Subsection G.

18

### 24. Drill and Tap for Valves (other than Control Valves)

a. Except as provided in Subparagraph 24.b,for leaking valves (other than control valves), when other repair attempts have failed to reduce emissions below the applicable leak definition and Dow is not able to remove the leaking valve from service,Dow shall attempt at least one drill-and-tap repair (with a second injection ofan appropriate sealing material ifthe first injection is unsuccessful at repairing the leak)before placing the valve (other than provisionally,as set forth in Subparagraph 24.c)on the DOR list.

b. Drill

-and-tap is not required: (i) when Subparagraph 32.d.i applies; or (ii) when there is a major safety,mechanical,product quality, or environmental issue with repairing the valve using the drill-and-tap method,in which case, Dow shall document the reasons)why any drill-and-tap attempt was not performed prior to placing any valve on the DOR list.

c. If adrill-and-tap attempt can reasonably be completed within the fifteen-day repair period, Dow shall complete the drill-and-tap attempt in that time period. Ifa drill-and-tap attempt cannot reasonably occur within the fifteen-day repair period (e.g., ifDow's drill-and-tap contractor is not local and must mobilize to the Facility), Dow provisionally may place the valve on the DOR list pending attempting the drill-and-tap repair as expeditiously as practical. In no event (other than as provided in Subparagraph 24.b)may Dow take more than 30 days from the initial monitoring to attempt adrill-and-tap repair. Ifdrill-and-tap is successful,the valve shall be removed from the provisional DOR list. 25. Except as provided in Subparagraphs 32.d.i and 38.c.i, for each leak, Dow shall record the following information: the date ofall repair attempts; the repair methods used during each repair attempt; the date, time and Screening Values for all re-monitoring events; and, if

19

### applicable,documentation ofcompliance with Paragraphs 24 and 27 for Covered Equipment

placed on the DOR list. 26. Nothing in Paragraphs 21 - 25 is intended to prevent Dow from taking a leaking piece ofCovered Equipment out ofservice; provided however,that prior to placing the leaking piece ofCovered Equipment back in service,Dow must repair the leak or must comply with the requirements ofSubsection F (Delay ofRepair)to place the piece ofCovered Equipment on the DOR list. F. Delay ofRepair 27. Beginning no later than the Effective Date ofthis Consent Decree for the requirements in Subparagraphs 27.b and 27.c.(i), and beginning no later than three months after the Effective Date ofthis Consent Decree for the other requirements set forth below in this Paragraph,for all Covered Equipment placed on the DOR list, Dow shall:

a. Require sign-offfrom the relevant process unit supervisor or person of similar authority that the piece ofCovered Equipment is technically infeasible to repair without a process unit shutdown; b. Undertake periodic monitoring ofthe Covered Equipment placed on the DOR list at the frequency required for other pieces ofCovered Equipment ofthat type in the process unit; and (i)Repair the piece ofCovered Equipment within the time frame required by the applicable LDAR regulation; or,(ii) if applicable under Subsection G,replace,repack,or improve,the piece ofCovered Equipment by the timeframes set forth in Subsection G. G. Valve and Connector Replacement and Improvement Program 28. Commencing no later than six months after the Effective Date ofthis Consent Decree,and continuing until termination, Dow shall implement the program set forth in Paragraphs 29 - 40 to improve the emissions performance ofthe valves and connectors that are

I•L17Covered Equipment in each Covered Process Unit. All references to "valves" in

Paragraphs 29 - 35 exclude pressure relief valves. 29. List ofall Existing Valves in the Covered Process Units. In the first compliance status report required under Section VI and due at least six months after the Effective Date ofthis Consent Decree,Dow shall include a list ofthe tag numbers ofall valves subject to this ELP, broken down by Covered Process Unit,that are in existence as ofthe Effective Date. The valves

on this list shall be the "Existing Valves" for purposes ofParagraphs 30 - 32. 30. Proactive Initial Valve Ti~htenin~ Work Practices Relating to each New Valve that Is Installed and each Existing Valve that Is Re ap cked. Dow shall undertake the following work practices with respect to each new valve that is subject to LDAR that is installed (whether the new valve replaces an Existing Valve or is newly added to a Covered Process Unit)and each Existing Valve that is repacked:

a. Upon installation (or re-installation in the case ofrepacking),Dow shall tighten the valve's packing gland nuts or their equivalent (e.g.,pushers)to: (i)the manufacturer's recommended gland nut or packing torque; or (ii) any appropriate tightness that will minimize the potential for fugitive emission leaks ofany magnitude. This practice shall be implemented prior to the valve's exposure (or re-exposure, in the case ofrepacking)to process fluids. b. Not less than three days nor more than two weeks after a new valve that has been installed or an Existing Valve that has been repacked first is exposed to process fluids at operating conditions,Dow shall recheck the load on the valve packing and,ifnecessary,shall tighten the packing gland nuts or their equivalent (e.g.,pushers)to: (i)the manufacturer's recommended gland nut or packing torque; or (ii) any appropriate tightness that will minimize the potential for fugitive emission leaks ofany magnitude. 31. Installing New Valves. Except as provided in Subparagraphs 31.a, 31.b, or Paragraph 34,Dow shall ensure that each new valve (other than a valve that serves as the closure device on an open-ended line)that it installs in each Covered Process Unit and that, when installed,

21

### will be regulated under LDAR,either is a Low-E Valve or is fitted with Low-E Packing. This

requirement applies to entirely new valves that are added to a Covered Process Unit and to Existing Valves that are replaced for any reason in a Covered Process Unit.

a. Paragraph 31 shall not apply in emergencies or exigent circumstances requiring immediate installation or replacement ofa valve where aLow-E Valve or Low-E Packing is not available on a timely basis. Any such instance shall be reported in the next ELP compliance status report.

b. Paragraph 31 shall not apply to valves that are installed temporarily for a short-term purpose and then removed (e.g., valves connecting portion ofthe Covered Process Unit to a testing device.) 32. Replacin og r Repacking Existing Valves that Have Screening Values at or above 250 fpm with Low-E Valves or Low-E Packing.

a. Existing Valves Required to Be Replaced or Repacked. Except as provided in Paragraph 34,for each Existing Valve that has a Screening Value at or above 250 ppm during any monitoring event,Dow shall either replace or repack the Existing Valve with aLow-E Valve or Low-E Packing.

b. Timing: IfReplacin og r Repacking Does Not Require a Process Unit Shutdown. Ifreplacing or repacking does not require a process unit shutdown,Dow shall replace

or repack the Existing Valve by no later than one month after the monitoring event that triggers the replacing or repacking requirement,unless Dow complies with the following: Prior to the deadline, Dow must take all actions necessary to obtain the required valve or valve packing, including all necessary associated materials, as expeditiously as practical, and retain documentation ofthe actions taken and the date ofeach such action;

22ii. If, despite Dow's efforts to comply with Subparagraph 32.b.i, the required valve or valve packing,including all necessary associated materials, is not available in time to complete the installation within one month,Dow must take all reasonable actions to minimize emissions from the valve pending completion ofthe required replacing or repacking. Examples include: (a) Repair; (b) More frequent monitoring, with additional repairs as needed; or (c) Where practical, interim replacing or repacking ofa valve with a valve that isnot aLow-E Valve or with packing that is not Low-E Packing; and iii. Dow must promptly perform the required replacing or repacking after Dow's receipt ofthe valve or valve packing,including all necessary associated materials.

c. Timing: IfReplacin or Repacking Requires a Process Unit Shutdown. Ifreplacing or repacking requires a process unit shutdown,Dow shall replace or repack the Existing Valve during the first Maintenance Shutdown that follows the monitoring event that triggers the requirement to replace or repack the valve, unless Dow documents that insufficient time existed between the monitoring event and that Maintenance Shutdown to enable Dow to purchase and install the required valve or valve packing technology. In that case, Dow shall undertake the replacing or repacking at the next Maintenance Shutdown that occurs after Dow's receipt ofthe valve or valve packing, including all necessary associated materials.

d. Actions Required Pendin~placings or Repackings Pursuant to Subparagraphs 32.a - c.

i. Actions Required Pursuant to Subsection E. Dow shall not be required to comply with Subsection E pending replacing or repacking pursuant to Subparagraphs 32.a -cifDow completes the replacing or repacking by the date that is no later than one month after detecting the leak. IfDow does not complete the replacing or repacking within one month,or if, at the time ofthe leak detection,

23Dow reasonably can anticipate that it might not be able to complete the replacing or repacking within one month,Dow shall comply with all applicable requirements ofSubsection E. ii. Actions Required Pursuant to Applicable Regulations. For each Existing Valve that has a Screening Value at or above 500 ppm, Dow shall comply with all applicable regulatory requirements, including repair and "delay ofrepair," pending replacing or repacking pursuant to Subparagraphs 32.a - c. 33. Provisions Related to Low-E Valves and.Low-E Packing.

a. "Low-E" Status Not Affected by Subsequent Leaks. If, during monitoring after installation, aLow-E Valve or a valve using Low-E Packing has a Screening Value at or above 250 ppm,the leak is not a violation ofthis Decree,does not invalidate the "Low-E"status or
use ofthat type ofvalve or packing technology, and does not require replacing other,non-leaking valves or packing technology ofthe same type.

b. Repairing Low-E Valves. If,during monitoring after installation,aLow-E Valve or a valve using Low-E Packing has a Screening Value at or above 250 ppm, Paragraphs 21, 22,24, 25, 26 and 27 shall apply.

c. Replacin og r Repacking Low-E Valves. On any occasion when aLow-E Valve or a valve that utilizes Low-E Packing has a Screening Value at or above 250ppm butbelow 500 ppm,Dow shall not be required to replace or repack it. On any occasion when aLow-E Valve or a valve that utilizes Low-E Packing has a Screening Value at or above 500 ppm,Dow shall replace or repack it pursuant to the requirements ofParagraph 32. 34. Commercial Unavailability ofa Low-E Valve or Low-E Packing. Dow shall not be required to utilize aLow-E Valve or Low-E Packing to replace or repack a valve ifa Low-E Valve or Low-E Packing is commercially unavailable. The factors relevant to the question of

24commercial unavailability and the procedures that Dow must follow to assert that aLow-E Valve

or Low-E Packing is commercially unavailable are set forth in Appendix A. 35. Records ofLow-E Valves and Low-E Packing. Prior to installing any Low-E Valves or Low-E Packing,or ifnot possible before installation, then as soon as possible after installation, Dow shall secure from each manufacturer documentation that demonstrates that the proposed valve or packing technology meets the definition of "Low-E Valve" and/or "Low-E Packing." Dow shall make the documentation available upon request. 36. Connector Replacement and Improvement Descriptions.

a. For purposes ofParagraphs 37 - 38,for each ofthe following types of connectors, the following type ofreplacement or improvement shall apply:

Connector Tvpe Replacement or Improvement Description Flanged Gasket replacement or gasket improvement Threaded Replacement ofthe connector with a like kind connector ar other Compression Replacement ofthe connector with a like kind connector or other CamLock Replacement or improvement ofthe gasket or replacement or improvement ofthe CamLock Quick Connect Replacement or improvement ofthe gasket if applicable, or replacement ofthe connector (with either a like kind connector or other)if there is no gasket Any type Elimination (e.g., through welding,pipe (including any ofthe above) replacement, etc.)

25b. In cases where replacement-in-kind is utilized as the method for replacing

or improving a connector (e.g., a Quick Connect replaces another Quick Connect),the provisions ofSubparagraphs 36.b.i and 36.b.ii shall apply.

i. Ifthere are types, models or styles ofa like-kind connector that are less likely to leak than the existing connector, and one or more of those types,models or styles are technically feasible to use (considering the service, operating conditions,and type ofpiping or tubing that the connector is in)and would not create a major safety, mechanical,product quality, regulatory or other issue,Dow shall select alike-kind connector from among such types, models or styles. ii. If Subparagraph 36.b.i does not apply, Dow may install alike-kind connector that is the same type, model.or style as the existing connector. 37. Installing New Connectors. For each Covered Process Unit,Dow shall use best efforts, when selecting a new connector that, when installed, will be regulated under LDAR,to select a connector that is least likely to leak, using good engineering judgment,for the service, operating conditions,and type ofpiping or tubing that the connector is in. This requirement applies to entirely new connectors added to a Covered Process Unit and to existing connectors that
are replaced for whatever reason within a Covered Process Unit. 38. Replacin o~proving Connectors.

a. Trigger for Replacement or Improvement Requirements. For each connector that, in any two ofthree consecutive monitoring periods, has a Screening Value at or above 250 ppm,Dow shall replace or improve the connector in accordance with the applicable replacement or improvement described in Paragraph 36. Dow shall use best efforts to install a replacement or improvement that will be the least likely to leak,using good engineering judgment, for the service, operating conditions, and type ofpiping or tubing that the connector is in.b. Timing. Ifthe replacement or improvement does not require a process unit

shutdown,Dow shall undertake the replacement or improvement by no later than one month after the monitoring event that triggers the replacement or improvement requirement. Ifthe replacement or improvement requires a process unit shutdown,Dow shall undertake the replacement or improvement during the first Maintenance Shutdown that follows the monitoring event that triggers the requirement to replace or improve the connector,unless Dow documents that insufficient time existed between the monitoring event and the Maintenance Shutdown to enable Dow to secure and install the replacement or improvement. In that case, Dow shall undertake the replacement or improvement at the next Maintenance Shutdown that occurs after Dow's receipt ofthe necessary materials.

Actions Required Pendin~Replacements or Improvements Pursuant to Subparagraphs 38.a - b. Actions Required Pursuant to Subsection E. Dow shall not be required to comply with Subsection E pending replacement or improvement pursuant to Subparagraphs 38.a - b ifDow completes the replacement or improvement by the date that is no later than one month after detecting the leak. If Dow does not complete the replacement or improvement within one month, or if, at the time of the leak detection, Dow reasonably can anticipate that it might not be able to complete the replacement or improvement within one month,Dow shall comply with all applicable requirements of Subsection E. ii. Actions Required Pursuant to Applicable Regulations. For each connector that has a Screening Value at or above 500 ppm,Dow shall comply with all applicable regulatory requirements, including repair and "delay ofrepair," pending replacement or improvement pursuant to Subparagraphs 38.a - b. 39. Nothing in Paragraphs 30 - 38 requires Dow to utilize any valve, valve packing technology, or connector that is not appropriate for its intended use in a Covered Process Unit.

27

### 40. In each Compliance Status Report due under Section VI (Reporting Requirements)

ofthis Decree,Dow shall include a separate section in the Report that: (i)describes the actions it took to comply with this Subsection G,including identifying each piece ofequipment that triggered a requirement in Subsection G,the Screening Value for that piece ofequipment,the type ofaction taken (i.e.,replacement,repacking,or improvement),and the date when the action was taken; (ii)identifies any required actions that were not taken and explains why;and (iii) identifies the schedule for any known,future replacements,repackings, improvements,or eliminations,. H. Management ofChange 41. Management ofChange. To the extent not already done,beginning no later than three months after the Effective Date ofthis Consent Decree,Dow shall ensure that each valve, connector,pump,agitator, and OEL added to the Covered Process Units for any reason is evaluated to determine ifit is subject to LDAR requirements. Dow also shall ensure that each valve, connector,pump,agitator, and OEL that was subject to the LDAR program is eliminated from the LDAR program ifit is physically removed from a Covered Process Unit. This evaluation shall be a part ofDow's Management ofChange protocol. I. Training 42. By no later than nine months after the Effective Date ofthis Consent Decree,Dow shall develop a training protocol (or, as applicable,require its contractor to develop a training protocol for the contractor's employees)and shall ensure that all LDAR Personnel have completed training on all aspects ofLDAR, including this ELP,that are relevant to the person's duties. Once per calendar year starting in the calendar year after completion ofinitial training,Dow shall ensure that refresher training is performed with respect to each employee or contractor; provided however,that refresher training is not required ifan individual's employment at the Facility ceases

[►•F:3prior to the er~d ofthe calendar year or no longer involves duties relevant to LDAR. Beginning no

later than the Effective Date ofthis Consent Decree and continuing until termination,Dow shall

ensure (or as applicable,require its contractor to ensure for the contractor's employees)that new LDAR Personnel are sufficiently trained prior to any field involvement (other than supervised involvement for purposes oftraining)in the LDAR program. J. Quality Assurance ( "QA") /Quality Control( "QC") 43. Daily Certification by Monitoring Technicians. Commencing by no later than one month after the Effective Date ofthis Consent Decree,on each day that monitoring occurs, at the end ofsuch monitoring,Dow shall ensure that each monitoring technician certifies that the data collected accurately represents the monitoring performed for that day by requiring the monitoring technician to sign a form that includes the following certification:

On [insert date], I reviewed the monitoring data that I collected today and to the best ofmy knowledge and belief,the data accurately represent the monitoring that I performed today. 44. Commencing by no later than the first full calendar quarter after the Effective Date ofthis Consent Decree,at times that are not announced to the LDAR monitoring technicians, an LDAR-trained employee or contractor ofDow,who does not serve on a routine basis as an LDAR monitoring technician at the Facility, shall undertake the following no less than once per calendar quarter:

a. Verify that equipment was monitored at the appropriate frequency;

b. Verify that proper documentation and sign-offs have been recorded for all equipment placed on the DOR list; Ensure that repairs have been performed in the required periods; d. Review monitoring data and equipment counts (e.g., number ofpieces of equipment monitored per day)for feasibility and unusual trends

29

### e. Verify that proper calibration records and monitoring instrument maintenance information are maintained; £ Verify that other LDAR program records are maintained as required; and g. Observe in the field each LDAR monitoring technician who is conducting leak detection monitoring to ensure that monitoring during the quarterly QA/QC is being conducted as required. Dow promptly shall correct any deficiencies detected or observed. Dow shall maintain a log that: (i)records the date and time that the reviews, verifications, and observations required by this Paragraph are undertaken; and (ii)describes the nature and timing ofany corrective actions taken. K. LDAR Audits and Corrective Action 45. LDAR Audit Schedule. Until termination ofthis Decree,Dow shall ensure that an LDAR audit ofboth Covered Process Units at the Facility is conducted annually in accordance with the following schedule: for the first LDAR audit,the LDAR Audit Commencement Date shall be no later than three months after the Effective Date ofthis Consent Decree; for each subsequent LDAR audit,the LDAR Audit Completion Date shall occur within the same calendar quarter (ofthe subsequent year)that the first LDAR Audit Completion Date occurred. 46. Requirements related to persons conducting LDAR audits. For the first, third and fifth LDAR audits conducted under this Consent Decree,.Dow shall retain and utilize a third party with experience in conducting LDAR audits. Dow shall select a different company than the Facility's regular LDAR contractor to perform the third-party audit and Dow may not hire that company as the Facility's regular LDAR contractor during the life ofthis Consent Decree. The second and fourth audits may be either third-party audits or audits using (alone or in combination with third-party personnel)personnel ofDow's subsidiaries from other facilities or from centralized Dow (and/or subsidiary)functions that do not primarily serve the Facility. All such internal audits must be conducted by personnel familiar with LDAR requirements and this ELP.

3047. For each Covered Process Unit,each LDAR audit shall include: (i)reviewing

compliance with all applicable LDAR regulations, including LDAR requirements related to valves, connectors,pumps,agitators and OELs in heavy liquid service; (ii) reviewing and/or verifying, as applicable, the same items that are required to be reviewed and/or verified in Subparagraphs 44.a — 44.f; (iii)reviewing whether any pieces ofequipment that are required to be in the LDAR program are not included; and (iv)"comparative monitoring" as described in Paragraph 48. LDAR audits after the first audit also shall include reviewing the Facility's compliance with this ELP. 48. Comparative Monitoring. Comparative monitoring during LDAR audits shall be undertaken as follows:

a. Calculating a Comparative Monitoring Audit Leak Percentage. Covered Equipment shall be monitored in order to calculate a leak percentage for each Covered Process Unit,broken down by equipment type (i. valves, pumps,agitators, connectors,and OELCDs). For descriptive purposes under this Section, the monitoring that takes place during the audit shall be called "comparative monitoring"and the leak percentages derived from the comparative monitoring shall be called the "Comparative Monitoring Audit Leak Percentages." Dow shall undertake comparative monitoring at both Covered Process Units in each audit. In undertaking Comparative Monitoring,Dow shall not be required to monitor every component in each Covered Process Unit. b. Calculating the Historic, Average Leak Percentage from Prior Periodic Monitoring Events. For each Covered Process Unit, the historic, Average leak percentage from prior periodic monitoring events,broken down by equipment type valves (excluding pressure reliefvalves), pumps, agitators, connectors, and except as provided in Subparagraph 48.d below, OELCDs)shall be calculated. The following number ofcomplete monitoring periods immediately preceding the comparative monitoring shall be used for this purpose: valves - 4 periods;pumps and agitators - t 2 periods; connectors — 2 periods; and except as provided in Subparagraph 48.d below, OELCDs - 4 periods.

c. Calculating the Comparative Monitoring Leak Ratio. For each Covered Process Unit and each Covered Type ofEquipment,the ratio ofthe Comparative Monitoring Audit Leak Percentage from Subparagraph 48.a to

31the historic, Average leak percentage from Subparagraph 48.b shall be calculated. This ratio shall be called the "Comparative Monitoring Leak Ratio." Ifthe denominator in this calculation is "zero," it shall be assumed (for purposes ofthis calculation but not for any other purpose under this Consent Decree or under any applicable laws and regulations)that one leaking piece ofequipment was found in the process unit through routine monitoring during the 12-month period before the comparative monitoring. d. In only the first LDAR audit, Dow shall not be required to undertake comparative monitoring on OELCDs or calculate a Comparative Monitoring Leak Ratio for OELCDs because ofthe unavailability of historic, Average leak percentages for OELCDs. 49. When More Frequent Periodic Monitoring is Required. Ifa Comparative Monitoring Audit Leak Percentage calculated pursuant to Subparagraph 48.a triggers a more frequent monitoring schedule under any applicable federal, state, or local law or regulation than the frequencies listed in the applicable Paragraph in Subsection V.0 —that is,either Paragraph 15, 16,or 17 -- for the equipment type in that Covered Process Unit,Dow shall monitor the affected type ofequipment at the greater frequency unless and until less frequent monitoring is again allowed under the specific federal, state,or local law or regulation. At no time may Dow monitor at intervals less frequently than those listed in the applicable Paragraph in Subsection V.C. 50. Corrective Action Plan ( "CAP"~.

a. Requirements ofa CAP. By no later than the date that is one month after each LDAR Audit Completion Date,Dow shall develop a preliminary Corrective Action Plan if: (i)the results ofan LDAR audit identify any deficiencies; or (ii) a Comparative Monitoring Leak Ratio calculated pursuant to Subparagraph 48.c is 3.0 or higher and the Comparative Monitoring Audit Leak Percentage calculated pursuant to Subparagraph 48.a is greater than or equal to 0.5 percent. The preliminary CAP shall describe the actions that Dow has taken or shall take to address: (i)the deficiencies and/or (ii)the causes ofa Comparative Monitoring Leak Ratio that is 3.0 or higher (but only ifthe Comparative Monitoring Audit Leak Percentage is at or above 0.5

32percent). Dow shall include a schedule by which actions that have not yet been completed shall

be completed. Dow promptly shall complete each corrective action item with the goal of completing each action within the date that is three months after the LDAR Audit Completion Date. Ifany action is not completed or not expected to be completed within three months after the LDAR Audit Completion Date,Dow shall explain the reasons and propose a schedule for prompt completion in the final CAP to be submitted under Subparagraph SO.b.

b. Submission ofthe Final CAP to EPA. By no later than the date that is four months after the LDAR Audit Completion Date,Dow shall submit the final CAP to EPA,together with a certification ofthe completion ofeach item of corrective action. If any action is not completed within three months after the LDAR Audit Completion Date,Dow shall explain the reasons, together with a proposed schedule for prompt completion. Dow shall submit a supplemental certification ofcompletion by no later than one month after completing all actions.

c. EPA Comment on CAP. EPA may submit comments on the CAP. Except for good cause, EPA may not request Dow to modify any action within the CAP that already has been completed or is in progress at the time ofEPA's comments. Within the date that is one month after receipt ofany comments from EPA,Dow shall submit a reply. Disputes arising with respect to any aspect ofa CAP shall be resolved in accordance with the dispute resolution provisions ofthis Decree.

d. Extension of Completion Dates. Because Dow asserts that its general practice is to establish aggressive schedules for undertaking steps to correct potential areas of

non-compliance with environmental regulations,and because the Parties do not wish to discourage this practice,for any corrective action item for which Dow mustpropose a schedule for completion in the final CAP submitted to EPA,Dow may later request an extension oftime from EPA ifDow

33demonstrates that an unanticipated problems)prevented completion according to the

originally-proposed schedule and Dow notifies EPA ofthis problems)promptly upon its discovery. In its discretion, EPA may grant the extension. L. Certification of Compliance 51. Within 180 days after the initial LDAR Audit Completion Date,Dow shall certify to EPA that,to the signer's best knowledge and beliefformed after reasonable inquiry: (i)except
as otherwise identified, the Facility, including the Low Gloss ABS unit,is in compliance with all applicable LDAR regulations and this ELP;(ii)Dow has completed all corrective actions, if applicable, or is in the process ofcompleting all corrective actions pursuant to a CAP;and (iii) all equipment at the Facility, including the Low Gloss ABS unit, that is regulated under LDAR has been identified and included in the Facility's LDAR program. To the extent that Dow cannot make the certification in all respects, it shall specifically identify any deviations from Items (i)- (iii). M. Recordkeepin~ 52. Dow shall keep all records required by this ELP,including each LDAR audit report, to document compliance with the requirements ofthis ELP for at least one year after termination ofthis Consent Decree. Upon request by EPA,Dow shall make all such documents available to EPA and shall provide,in electronic format ifso requested,all LDAR monitoring data generated during the life ofthis Consent Decree.

~~VI. REPORTING REQUIREMENTS

53. ELP Compliance Status Reports. On the dates and for the time periods set forth in Paragraph 54,Dow shall submit to EPA,in the manner set forth in Section XIV (Notices),the following information:

a. The number ofLDAR Personnel at the Facility (excluding Personnel whose functions involve the non-monitoring aspects ofrepairing leaks)and the approximate percentage oftime each such person dedicated to performing his/her LDAR functions; b. An identification and description ofany non-compliance with the requirements of Section V (Compliance Requirements);

c. An identification ofany problems encountered in complying with the requirements ofSection V (Compliance Requirements); d. The information required by Paragraph 40 of Subsection V.G; A description ofthe trainings done in accordance with this Consent Decree; £ Any deviations identified in the QA/QC performed under Subsection V.J, as well as any corrective actions taken under that Subsection; g. A summary ofLDAR audit results including specifically identifying all alleged deficiencies; and h. The status ofall actions under any CAP that was submitted during the reporting period, unless the CAP was submitted less than one month before the compliance status report. 54. Due Dates. The first compliance status report shall be due thirty-one days after the first full half

-year after the Effective Date ofthis Consent Decree (i.e., either: (i)January 31 ofthe year after the Effective Date, ifthe Effective Date is between January 1 and June 30 ofthe preceding year; or (ii) July 31 ofthe year after the Effective Date, ifthe Effective Date is between July 1 and December 31). The initial report shall cover the period between the Effective Date and the first full half year after the Effective Date (a "half year" runs between January 1 and June 30 and between July 1 and December 31). Until termination ofthis Decree, each subsequent report

35will be due on the same date in the following year and shall cover the prior two half years (i.e.,

either January 1 to December 31 or July 1 to June 30). 55. Each report submitted under this Consent Decree shall be signed by the Michigan Operations site leader or the Michigan Operations responsible care leader (head ofthose responsible for environmental management and compliance), and shall include the following certification: I certify under penalty oflaw that this document and all attachments were prepared

under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry ofthe person or persons who manage the system,or those persons directly responsible for gathering the information, the information submitted is, to the best ofmy knowledge and belief, true, accurate, and complete. 56. All Reports under this Consent Decree shall be submitted to EPA in the manner designated in Section XIV ofthis Consent Decree (Notices). 57. The reporting requirements ofthis Consent Decree do not relieve Dow ofany reporting obligations required by the CAA,CWA or RCRA or implementing regulations, or by any other federal, state, or local law,regulation, permit, or other requirement. The reporting requirements ofthis Section are in addition to any other reports, plans or submissions required by other Sections ofthis Consent Decree. 58. Any information provided pursuant to this Consent Decree may be used by the United States in any proceeding to enforce the provisions ofthis Consent Decree and as otherwise permitted by law. VII. LOW GLOSS ABS UNIT 59. WHEREAS:

a. Styron LLC ( "Styron")was formed as a wholly owned subsidiary ofDow

on November 10,2009. The formation ofStyron was unrelated to and independent ofthis action.

K~It occurred after the issuance ofthe 2006-2007 Findings and Notice ofViolations that form the

basis for the settlement embodied in this Consent Decree. On April 1, 2010,Dow transferred certain assets, including the Low Gloss ABS Unit building and most ofthe process equipment contained therein, to Styron. At that same time,Dow leased to Styron the land where the Low Gloss ABS Unit is housed. On June 17,2010,Dow sold Styron to Styron's current owner. Styron operates the process equipment at the Low Gloss ABS Unit; however,through contractual arrangements with Dow,Dow performs all monitoring,repair,training,and other services relating to LDAR and provides all associated Environment,Health,&Safety consulting services.

b. Styron wishes to cooperate with the United States and Dow with respect to the implementation ofthe Enhanced LDAR Program at the Low Gloss ABS Unit.

The United States acknowledges that Styron is not liable for the allegations asserted in the Complaint in this action or in the Findings and Notice ofViolations, all ofwhich pre-date Styron's creation.

d. Styron denies any and all responsibility for the violations alleged in the Complaint and in the Findings and Notice ofViolations. Styron's agreement to undertake the obligations in this Section ofthe Decree should not be construed as an admission ofliability or a waiver ofany ofits rights whatsoever. 60. Obli atg ions

a. By consenting to Section VII ofthis Consent Decree, Styron certifies that it has read all ofthe provisions ofthis Consent Decree.

b. For the shorter of: (i) Styron's ownership and/or operational interest in the Low Gloss ABS unit; or (ii)the duration ofthis Consent Decree, Styron shall cooperate fully with

37Dow,including but not limited to providing documents,information,access,and/or data,to enable

Dow to perform the Enhanced LDAR Program at the Low Gloss ABS Unit.

c. Dow's Failure to Substantially Perform the ELP at the Low Gloss ABS Unit

For purposes ofSubparagraphs 60.c and 60.d, the phrases "Failure to Substantially Perform the ELP at the Low Gloss ABS Unit" and "Fail to Substantially Perform the ELP at the Low Gloss ABS Unit," shall mean that Dow fails to substantially perform,at the Low Gloss ABS Unit,the obligations ofParagraphs 13 — 58 ofthis Decree,taking those obligations as a whole. The failure to perform individual obligations,even numerous individual obligations, is not a Failure to Substantially Perform the ELP at the Low Gloss ABS Unit, unless, taken as a whole,Dow fails to substantially perform the entire Enhanced LDAR Program at the Low Gloss ABS Unit. For failures that are less than a Failure to Substantially Perform the ELP at the Low Gloss ABS Unit,the stipulated penalty provisions against Dow in Paragraph 63 ofthis Decree and any other remedies available to the United States against Dow shall apply.

ii. The United States shall notify Dow if, in the judgment ofthe United States, Dow Fails to Substantially Perform the ELP at the Low Gloss ABS Unit("Initial Notice") The United States shall provide a copy ofthis Initial Notice to Styron. Dow shall have a reasonable opportunity to cure. If, within a reasonable period oftime not to exceed 90 days from the date ofthe Initial Notice,Dow cures its Failure to Substantially Perform the ELP at the Low Gloss ABS Unit, then Dow shall continue to be responsible for compliance with the ELP at the Low Gloss ABS Unit. If, in the judgment ofthe United States, Dow does not cure its Failure to Substantially Perform the ELP at the Low Gloss ABS Unit within a reasonable period oftime not to exceed 90 days,then the United States shall so notify Dow( "Final Notice"). The United States shall provide a copy ofthis Final Notice to Styron. Upon receipt ofthe Final Notice, Dow no

38

### longer shall be responsible for complying with the ELP at the Low Gloss ABS Unit unless and

until Dow recommences performance ofthe ELP at the Low Gloss ABS Unit either by consent of the United States or by Court order. Disputes arising under this provision shall be resolved pursuant to the dispute resolution provisions ofthis Decree.

d. Styron's Contingent Obli anions

As soon as practicable after receipt ofthe Final Notice described in Subparagraph 60.c.ii, Styron shall commence performance ofthe ELP at the Low Gloss ABS Unit. It is expressly recognized that, as to the obligation to commence performance "as soon as practicable," Styron likely will be able to commence performance ofsome obligations sooner than others and that each obligation must be considered separately.

ii. If Styron seeks to dispute whether Dow has Failed to Substantially Perform the ELP at the Low Gloss ABS Unit,Styron shall invoke the dispute resolution provisions ofSection X ofthis Decree by no later than 60 days after receipt ofthe Final Notice. Notwithstanding the invocation ofthese provisions, Styron shall be required to commence,ifnot yet commenced,and/or continue its performance ofthe ELP at the Low Gloss ABS Unit pursuant to the requirements of Subparagraph 60.d.i. Styron's performance shall cease only ifand when Dow recommences performance ofthe ELP at the Low Gloss ABS Unit either by the consent of the United States or by Court order.

iii. If Styron is required to commence performance ofthe ELP at the Low Gloss ABS Unit pursuant to Subparagraph 60.d.i, Styron shall have no liability for the stipulated penalties in Section VIII ofthis Decree; provided however,that the United States shall retain all other rights and remedies it may have against Styron to enforce the ELP.

39e. Styron Transfer ofOwnershipand/or Operational Interest Except as provided in Subparagraph 60.e.ii,by the later of: (i)thirty (30)days prior to Styron transferring its ownership or operational interest in the Low Gloss ABS Unit; or (ii)as soon as practical prior to such transfer, Styron will notify the prospective transferee ofthis Consent Decree and provide a copy. Styron shall not be relieved ofits obligations in Paragraph 60 unless and until the transferee agrees in writing to assume the obligations in Paragraph 60,the United States agrees to the transferee's assumption (which agreement shall not be unreasonably withheld),and the United States, Styron,and the transferee file with this Court a Joint Notice ofAssumption ofthose Obligations. It is expressly recognized that any such Joint Notice will also require the transferee to condition any future transfers on the assumption ofthese

same obligations for the duration ofthis Consent Decree.

ii. Styron's obligations in Subparagraph 60.e.i do not apply to a corporate reorganization that results in the transfer ofownership or operation ofthe Low Gloss ABS Unit to an "Affiliate" ofStyron. For purposes ofthis provision, "Affiliate" shall mean a person that directly, or indirectly through one or more intermediaries, controls,or is controlled by,

or is under the common control with, the person specified. 61. Other Provisions. Ifand only if Stryon is required to commence performance of the ELP pursuant to Subparagraph 60.d.i, then the following Sections ofthis Decree also shall apply as between the United States and Styron: III (Definitions); IX (Force Majeure); X (Dispute Resolution); XIV (Notices); XV (Modification); and XVII (Termination),but only with respect to the Low Gloss ABS Unit. This Court shall retain jurisdiction as set forth in Section XIV;this Decree shall have the same Effective Date as set forth in Section XV;and this Decree and shall remain a final judgment as set forth in Section XXII.

,~VIII. STIPULATED PENALTIES

62. Failure to Pay Civil Penalty. IfDow fails to pay any portion ofthe civil penalty required to be paid under Section IV ofthis Decree (Civil Penalty)when due,Dow shall pay a stipulated penalty of$ 2500 per day for each day that the payment is late. Late payment ofthe civil penalty and any accrued stipulated penalties shall be made in accordance with Paragraph 10. 63. Failure to Meet all Other Consent Decree Obli atg ions. Dow shall be liable for stipulated penalties to the United States for violations ofthis Consent Decree as specified in Table 2 below unless excused under Section IX (Force Majeure). Table 2 Violation Stipulated Penalty 63.a. Failure to timely develop a Period ofnoncompliance Penalty_per daX Facility-Wide LDAR Document as required late by Paragraph 14 or failure to timely update the Document on an annual basis ifneeded 1 15 days 300 pursuant to Paragraph 14 16 30 days 400 31 days or more 500 63.b. Each failure to perform monitoring at $100 per component per missed monitoring the frequencies set forth in Paragraph 15 or, if event, not to exceed $25,00 per month per applicable, Paragraphs 16 and 17 Covered Process Unit 63.c. Each failure to comply with Method 21 Monitoring Penalty per monitoring in performing LDAR monitoring, in violation frequency event per process unit ofParagraph 18 for the component Every 2 years 25,000 Annual 20,000 Semi

-Annual 15,000 Quarterly 10,000 Monthly 5,000 63.d. For each failure to use a monitoring $100 per failure per piece ofequipment device that is attached to a datalogger and for monitored each failure, during each monitoring event,to directly electronically record the Screening Value,date,time, identification number ofthe

41

### monitoring instrument,and the identification

oftechnician, in violation ofthese requirements ofParagraph 18 63.e. Each failure to transfer monitoring data $150 per day for each day that the transfer is to an 

### electronic database on at least a weekly late basis, in violation ofthis requirement in Paragraph 18 63.f. Each failure to timely perform a first 150 per day for each late day,not to exceed attempt at repair as required by Paragraph 21 $1 500 per leak or 23,unless not required to do so under Subparagraph 32.d.i or 38.c.i. For purposes ofthese stipulated penalties,the term "repair" includes the required remonitoring in Paragraph 22 after the repair attempt; the stipulated penalties in Subparagraph 63.h do not apply. 63.g. Each failure to timely perform a final Equipment Penalty per Not to attempt at repair as required by Paragraph 21, type Component Exceed unless not required to do so under per day late Subparagraph 32.d.i or 38.c.i. For purposes ofthese stipulated penalties,the term "repair" Valves,connectors 300 37,500 includes the required remonitoring in Pumps,agitators $1,200 150,000 Paragraph 22 after the repair attempt;the stipulated penalties in Subparagraph 63.h do not apply. 63.h. Each failure to timely perform Repair Equipment Penalty per Not to Verification Monitoring as required by type Component Exceed Paragraph 22 in circumstances where the first per day late attempt to adjust, or otherwise alter, the piece ofequipment to eliminate the leak was made Valves,connectors 150 18,750 within 5 daysand the final attempt to adjust,or Pumps,agitators 600 75,000 otherwise alter, the piece ofequipment to eliminate the leak was made within 15 days 63.i. Each failure to undertake the Period of Penalty per drill-and-tap method as required by noncompliance component per day Paragraph 24 late Between 1 and 15 days 200 Between 16 and 30 days 350 Over 30 days 500 per day for each day over 30,not to exceed $37,500

4263.j: Each failure to record the information 100 per component per item ofmissed

required by Paragraph 25 information 63.k. Each improper placement ofa piece of Covered Equipment on the DOR list (i.e., Equipment Penalty per Not to placing a piece ofCovered Equipment on the Tvpe component exceed DOR list even though it is feasible to repair it per day on list without a process unit shutdown)

T Valve,connectors $300 $75,000 Pumps,Agitators $1200 $300,000 63.1. Each failure to comply with the $250 per piece ofCovered Equipment requirement in Subparagraph 27.a that a relevant unit supervisor or person ofsimilar authority sign offon placing a piece of Covered Equipment on the DOR list 63.m. Each failure to comply with the Refer to the applicable stipulated penalties in requirements of Subparagraph 27.c.(i) Subparagraphs 63.fand 63.g 63.n. Each failure to comply with the Refer to the applicable stipulated penalties in requirements ofSubparagraph 27.c.(ii) Subparagraphs 63.p 63.u. 63.0. Each failure to comply with the work $50 per violation per valve per day,not to practice standards in Paragraph 30 exceed $30,000 for all valves in a Covered Process Unit per quarter 63.p. Each failure to install aLow-E Valve or 20,000 per failure, except as provided in a valve fitted with Low-E Packing when Paragraph 63A below required to do so pursuant to Paragraph 31 63.q. Each failure, in violation of $500 per day per failure, not to exceed Subparagraph 32.b, to timely comply with the $20,000,except as provided in Paragraph 63A requirements relating to installing aLow-E below Valve or Law-E Packing ifa process unit shutdown is not required 63.r. Each failure, in violation of $20,000 per failure, except as provided in Subparagraph 32.c, to install aLow-E Valve Paragraph 63A below or Low-E Packing when required to do so during a Scheduled Maintenance 63.s. Each failure, in violation of $10,000 per failure Paragraph 37,to timely comply with the requirements relating to replacing or improving a connector for any new connector installation
43

### 63.t. Each failure, in violation of

Subparagraph 38.b.,to timely comply with the $250 per day per failure, not to exceed requirements relating to replacing or $1 0,000 per failure improving a connector ifthe replacement or improvement does not require a process unit shutdown 63.u. Each failure, in violation of $10,000 per failure Subparagraph 38.b,to comply with the requirements relating to replacing or improving a connector ifthe replacement or improvement requires a process unit shutdown
63.v. Each failure to add a piece ofCovered 300 per piece ofCovered Equipment (plus Equipment to the LDAR program when an amount,if any,due under Paragraph 63.b required to da so pursuant to the evaluation for any missed monitoring event related to a required by Paragraph 41 (MOC) component that should have been added to the LDAR Program but was not) 63.w. Each failure to remove a piece of 150 per failure per piece ofCovered Covered Equipment from the LDAR program Equipment when required to do so pursuant to Paragraph 41 63.x. Each failure to timely develop a 50 per day late training protocol as required by Paragraph 42 63.y. Each failure to perform initial, 1000 per person per month late refresher, or new personnel training as required by Paragraph 42 63.z. Each failure ofa monitoring technician $100 per failure per technician to complete the certification required in Paragraph 43 63.aa. Each failure to perform any ofthe $1000 per missed requirement per quarter requirements relating to QA/QC in Paragraph 44 63.bb. Each failure to conduct an LDAR audit in accordance with the schedule set forth period ofnoncompliance Penalty per day in Paragraph 45. 1 15 days $300., 16 30 days $400 31 days or more $500,not to exceed $100,000 per audit63.cc. For the first, third, and fifth audits, $25,000 per audit

each failure to use a third party; each use ofa third party auditor that is not experienced in LDAR audits; and each use ofDow's regular LDAR contractor to conduct the third party audit 63.dd. For the second and fourth LDAR $1 0,000 per audit audits, each audit that does not comply with the requirements in Paragraph 46 63.ee. Except for the requirement to $100,000 per audit undertake Comparative Monitoring,each failure to substantially comply with the LDAR audit requirements in Paragraph 47 63.f£ Each failure to substantially comply $50,000 per audit with the Comparative Monitoring requirements ofParagraph 48 63.gg. Each failure to timely submit a Period ofnoncompliance Penalty per day Corrective Action Plan that substantially per violation conforms to the.requirements ofParagraph 50 1 - 15 days $ 100 16 - 30 days $ 250 31 days or more $ 500 Not to exceed $100,000 per audit 63.hh. Each failure to implement a corrective Period ofnoncompliance Penaltyper daY action within three months after the LDAR per violation Audit Completion Date or pursuant to the schedule that Dow must propose pursuant to 1 - 15 days $ 500 Subparagraph SO.b ifthe corrective action 16 - 30 days $ 750 cannot be completed in three months or 31 days or more ~ $1000 pursuant to an EPA
-approved revised schedule pursuant to Subparagraph SO.d Not to exceed $200,000 per audit 63.ii. Each failure to timely submit a Period ofnoncompliance Penalty per day Certification of Compliance that substantially per violation conforms to the requirements ofParagraph 51 1 - 15 days $ 100 16 - 30 days $ 250 31 days or more $ 500 Not to exceed $75,000 63.jj. Each failure to substantially comply Period ofnoncompliance Penaltyper day with any recordkeeping, submission,or per violation reporting requirement in Sections V and VI 1 - 15 days $ 100 not specifically identified above in this 16 - 30 days $ 250 Table 2. 31 days or more $ 500

:~63A. Stipulated Penalties in Lieu ofthose in Subparagraphs 63.p, 63.q 63.r.

a. For purposes ofthis Paragraph,the term "Non-Compliant Valve"means a valve that is either: (i)not aLow-E Valve; or (ii)not fitted with Low-E Packing. The term "Compliant Valve"means a valve that is either: (i)a Low-E Valve; or (ii) fitted with Low-E Packing. b. The stipulated penalties in Subparagraph 63A.c are to be used instead of those in Subparagraphs 63.p, 63.q, or 63.r when all ofthe following requirements are met: i. Dow,and not a government agency,discovers the failure involved; ii. Dow promptly reports the failure to EPA; iii. In the report, Dow sets forth a schedule for promptly replacing the Non
-Compliant Valve with a Compliant Valve; provided however, that Dow shall not be required to undertake an unscheduled shutdown ofthe affected Covered Process Unit in proposing the schedule unless Dow so chooses; iv. Dow monitors the Non
-Compliant Valve once a month from the time ofits discovery until the valve is replaced with a Compliant Valve and no Screening Values above 100 ppm are recorded;

v. Dow replaces the Non
-Compliant Valve with a Compliant Valve in accordance with the schedule set forth in 63A.b.iii; and vi. Dow demonstrates that in good faith it intended to install a Compliant Valve but inadvertently installed allon-Compliant Valve.

c. The following stipulated penalties shall apply under the circumstances in Paragraph 63A: i. In lieu ofthe penalty in Subparagraph 63.p, $2000 per failure. ii. In lieu ofthe penalty in Subparagraph 63.q, $50 per day per failure, not to exceed $2000 iii. In lieu ofthe penalty in Subparagraph 63.r, $2000 per failure. 64. Stipulated Penalties at Low Gloss ABS Unit. Iffor any reason other thanforce majeure,Dow "Fails to Substantially Perform the ELP at the Low Gloss ABS Unit," as defined in

,~

### Paragraph 60.c, and receives a "Final Notice"pursuant to Paragraph 60.c.ii, Dow shall be liable

for a stipulated penalty of$2,000,000. This penalty is applicable even though Styron or a successor company to Styron commences compliance with the obligations ofSections V and VI at the Low Gloss ABS Unit. After the date ofthe United States'receipt ofpayment,or after the date that either Dow or Styron invokes dispute resolution claiming that Dow did not Fail to Substantially Perform the ELP at the Low Gloss ABS Unit,Dow no longer shall be liable for any stipulated penalties under Paragraphs 63 and 63A based upon obligations at the Low Gloss ABS Unit unless and until the resolution ofany such dispute results in Dow recommencing performance ofthe ELP at the Low Gloss ABS Unit. In that case,stipulated penalties under Paragraph 63 again shall be applicable. 65. Waiver ofPa.Yment. The United States may,in its unreviewable discretion,reduce

or waive payment ofstipulated penalties otherwise due to it under this Consent Decree. 66. Demand for Stipulated Penalties. A written demand for the payment ofstipulated penalties will identify the particular violations)to which the stipulated penalty relates; the stipulated penalty amount (as can be best estimated)that the United States is demanding for each violation; the calculation method underlying the demand;and the grounds upon which the demand is based. Prior to issuing a written demand for stipulated penalties, the United States may,in its unreviewable discretion, contact Dow for informal discussion ofmatters that the United States believes may merit stipulated penalties. 67. Simulated Penalties' Accrual. Stipulated penalties will begin to accrue on the day after performance is due or the day a violation occurs,whichever is applicable,and will continue to

accrue until performance is satisfactorily completed or the violation ceases. Stipulated penalties shall accrue simultaneously for separate violations ofthis Consent Decree.

47

### 68. Stipulated Penalties Payment Due Date/Escrow Account for Paragraph 64

Stipulated Penalties. Except for stipulated penalties due under Paragraph 64,stipulated penalties shall be paid no later than sixty (60)days after receipt ofa written demand by the United States unless the demand is disputed through compliance with the requirements ofthe dispute resolution provisions ofthis Decree. Stipulated penalties due under Paragraph 64 shall be paid no later than sixty (60)days after receipt ofthe Final Notice described in Paragraph 60.c.ii unless Dow or Styron invokes the dispute resolution provisions ofthis Decree to claim that Dow did not Fail to Substantially Perform the ELP at the Low Gloss ABS Unit. Ifeither Dow or Styron invokes dispute resolution,Dow shall place $2,000,000 into aninterest-bearing,commercial escrow account within 30 days ofthe dispute resolution notice ofeither Dow or Styron, as applicable. Dow shall provide the United States with a copy ofthe escrow agreement and the statement showing the deposit ofthe disputed amount into the escrow account. Ifthe resolution ofthe dispute results in Dow recommencing performance ofthe ELP at the Low Gloss ABS Unit,all funds in the escrow account shall be disbursed to Dow. Ifthe resolution ofthe dispute results in Styron continuing to perform the ELP at the Low Gloss ABS Unit,all funds in the escrow account shall be disbursed to the United States. 69. Manner ofPayment ofStipulated Penalties. Stipulated penalties owing to the United States ofunder $10,000 will be paid by check and made payable to "U.S. Department of Justice," referencing DOJ Number 90-5-2-1-08935 and USAO File Number 2008V00788,and delivered to the U.S. Attorney's Office in the Eastern District ofMichigan, 211 W.Fort St., Suite 2100,Detroit, MI 48226. Stipulated penalties owing to the United States of$10,000 or more will be paid in the manner set forth in Section IV (Civil Penalty)ofthis Consent Decree. All transmittal correspondence shall state that the payment is for stipulated penalties,shall identify the

.,

### violations to which the payment relates, and shall include the same identifying information

required by Paragraph 10. 70. Disputes over Stipulated Penalties. By no later than 60 days after receiving a demand for stipulated penalties,Dow may dispute liability for any or all stipulated penalties demanded by invoking the dispute resolution procedures ofSection X. IfDow fails to pay stipulated penalties when due and does not prevail in dispute resolution,Dow shall be liable for interest at the rate specified in 28 U.S.C.§ 1961,accruing as ofthe date payment became due. 71. No amount ofthe stipulated penalties paid by Dow shall be used to reduce its federal tax obligations. 72. Subject to the provisions of Section XII ofthis Consent Decree (Effect of Settlement

/Reservation ofRights),the stipulated penalties provided for in this Decree shall be in addition to any other rights, remedies,or sanctions available to the United States for a violation of this Consent Decree or applicable law. In addition to injunctive reliefor stipulated penalties,the United States may elect to seek mitigating emissions reductions equal to or greater than the excess amounts emitted ifthe violations result in excess emissions. Dow reserves the right to challenge the United States' exercise ofthis option. Where a violation ofthis Consent Decree is also a violation ofthe CAA or its implementing regulations, Dow shall be allowed a credit,for any stipulated penalties paid, against any statutory penalties imposed for such violation. IX. FORCE MAJEURE 73. "Force Majeure," for purposes ofthis Consent Decree, is defined as any event beyond the control ofDow,its contractors, or any entity controlled by Dow that delays the performance ofany obligation under this Consent Decree despite Dow's best efforts to fulfill the obligation. The requirement that Dow exercise "best efforts to fulfill the obligation" includes

..using best efforts to anticipate any potential force majeure event and best efforts to address the

effects ofany such event: (a)as it is occurring; and (b)after it has occurred,to prevent or minimize any resulting delay. 7~. "Force Majeure" does not include Dow's financial inability to perform any obligation under this Consent Decree. Unanticipated or increased costs or expenses associated with the performance ofDow's obligations under this Consent Decree shall not constitute circumstances beyond Dow's control nor serve as the basis for an extension oftime under this Section IX. Force Majeure also does not include any impediment to performance caused in whole

or in part by Dow's lack or limited ownership and/or lack or limited operation ofthe Low Glass ABS unit. An inability to perform the obligations ofthis Consent Decree at the Low Gloss ABS unit due to Dow's lack of or limited ownership and/or lack of or limited operation shall not constitute circumstances beyond Dow's control nor serve as the basis for an extension oftime under this Section IX. 75. If any event occurs which causes or may cause a delay or impediment to performance in complying with any provision ofthis Consent Decree,Dow shall notify EPA in writing promptly but not later than fourteen business days after the time Dow first knew or should have known by the exercise ofdue diligence that the event might cause a delay. In the written notice,Dow shall specifically reference this Paragraph 75 ofthe Consent Decree and shall provide,to the extent such information is available at the time, an explanation and description of the reasons for the delay; the anticipated duration ofthe delay; all actions taken or to be taken to prevent or minimize the delay; a schedule for implementation ofany measures to be taken to prevent or mitigate the delay or the effect ofthe delay; Dow's rationale for attributing such delay to a Force Majeure event; and a statement as to whether, in the opinion ofDow,such event may

X17

### cause or contribute to an endangerment to public health, welfare or the environment. Dow shall

be deemed to know ofany circumstance ofwhich Dow,any entity controlled by Dow,or Dow's contractors knew or should have known. The written notice required by this Paragraph shall be effective upon the mailing ofthe same by overnight mail or by certified mail,return receipt requested,to EPA in the manner set forth in Section XIV (Notices). 76. Failure by Dow to materially comply with the notice requirements specified in Paragraph 75 shall preclude Dow from asserting any claim ofForce Majeure with respect to the particular event involved,unless the United States, in its unreviewable discretion, permits Dow to assert a Force Majeure claim with respect to the particular event. 77. The United States shall respond in writing to Dow regarding Dow's claim ofForce Majeure within 45 days ofreceipt ofthe notice required under Paragraph 75. After this initial response,the parties may confer. 78. IfEPA initially or ultimately agrees that the delay or anticipated delay is attributable to a Force Majeure event,the time for performance ofthe obligations under this Consent Decree that are affected by the Force Majeure event will be extended by EPA for such time as is necessary to complete those obligations. An extension ofthe time for performance of the obligations affected by the Force Majeure event shall not, ofitself, extend the time for performance ofany other obligation. However,Dow may request that the time be extended for performance ofany other obligation that is affected by the Force Majeure event. EPA will notify Dow in writing ofthe length ofthe extension,ifany,for performance ofthe obligations affected by the Force Majeure event.

51

### 79. IfEPA does not agree that the delay or anticipated delay has been or will be caused

by a Force Majeure event,or ifthe parties fail to agree on the length ofthe delay attributable to the Force Majeure event,EPA so will notify Dow in writing ofits final decision. 80. IfDow elects to invoke the dispute resolution procedures set forth in Section X (Dispute Resolution), it shall do so no later than 45 days after receipt ofEPA's notice under Paragraph 77 (ifthe parties do not confer after that notice), or under Paragraph 79 (ifthe parties confer after the Paragraph 77 notice). In any such proceeding,Dow shall have the burden of demonstrating by a preponderance ofthe evidence that the delay or anticipated delay has been or will be caused by a Force Majeure event,that the duration ofthe delay or the extension sought was or will be warranted under the circumstances,that best efforts were exercised to avoid and mitigate the effects ofthe delay,and that Dow materially complied with the requirements ofParagraphs 73 and 75. IfDow carries this burden,the delay at issue shall be deemed not to be a violation by Dow ofthe affected obligation ofthis Consent Decree identified to EPA and the Court. X. DISPUTE RESOLUTION 81. Unless otherwise expressly provided for in this Consent Decree,the dispute resolution procedures ofthis Section shall be the exclusive mechanism to resolve disputes arising under or with respect to this Consent Decree. 82. Informal Dispute Resolution. The first stage ofdispute resolution shall consist of informal negotiations. The dispute shall be considered to have arisen when one Party sends the other Party a written Notice ofDispute. Such Notice ofDispute shall state clearly the matter in dispute. The period ofinformal negotiations shall not exceed 60 days after the Notice ofDispute, unless that period is modified by written agreement. Ifthe Parties cannot resolve the dispute by informal negotiations,then the position advanced by the United States shall be considered binding

52

### unless within 45 days after the conclusion ofthe informal negotiation period,Dow invokes formal

dispute resolution procedures set forth below. 83. Formal Dispute Resolution. Dow shall invoke formal dispute resolution procedures, within the time period provided in the preceding Paragraph,by serving on the United States a written Statement ofPosition regarding the matter in dispute. The Statement ofPosition shall include, but need not be limited to, any factual data, analysis, or opinion supporting Dow's position and any supporting.documentation relied upon by Dow. Dow and the United States may hold additional discussions, which may,in the unreviewable discretion ofeach party, include higher-level representatives ofone or both parties. 84. The United States shall serve its Statement ofPosition within 45 days ofreceipt of Dow's Statement ofPosition. The United States' Statement ofPosition shall include,but need not be limited to, any factual data,analysis, or opinion supporting that position and any supporting documentation relied upon by the United States. The United States' Statement ofPosition shall be binding on Dow unless Dow files a motion forjudicial review ofthe dispute in accordance with the following Paragraph. 85. Dow may seek judicial review ofthe dispute by filing with the Court and serving on the United States, in accordance with Section XIV ofthis Consent Decree (Notices),a motion requesting judicial resolution ofthe dispute. The motion must be filed within 60 days ofreceipt ofthe United States' Statement ofPosition pursuant to the preceding Paragraph. The motion shall contain a written statement ofDow's position on the matter in dispute, including any supporting factual data, analysis, opinion, or documentation,and shall set forth the reliefrequested and any schedule within which the dispute must be resolved for orderly implementation ofthe Consent Decree.

53

### 86. The United States shall respond to Dow's motion within the time period allowed by

the Local Rules ofthis Court for responses to diapositive motions. Dow may file a reply memorandum,to the extent permitted by the Local Rules. 87. In a formal dispute resolution proceeding under this Section,Dow shall bear the burden ofdemonstrating that its position complies with this Consent Decree and the CAA and that it is entitled to reliefunder applicable principles oflaw. The United States reserves the right to argue that its position is reviewable only on the administrative record and must be upheld unless arbitrary and capricious or otherwise not in accordance with law,and Dow reserves the right to argue to the contrary. 88. [Reserved] 89. The invocation ofdispute resolution procedures under this Section shall not, by itself, extend,postpone,or affect in any way any obligation ofDow under this Consent Decree, unless and until final resolution ofthe dispute so provides. Stipulated penalties with respect to the disputed matter shall continue to accrue from the first day ofnoncompliance,but payment shall be stayed pending resolution ofthe dispute. IfDow does not prevail on the disputed issue,stipulated penalties shall be assessed and paid as provided in Section VIII (Stipulated Penalties).

XI. INFORMATION COLLECTION AND RETENTION 90. The United States and its representatives and employees shall have the right of entry into the Facility, at all reasonable times, upon presentation ofcredentials and any other documentation required by law,to:

a. monitor the progress ofactivities required under this Consent Decree; b. verify any data or information submitted to the United States in accordance with the terms ofthis Consent Decree;

54

### obtain documentary evidence, including photographs and similar data, relevant to compliance with the terms ofthis Consent Decree; and d. assess Dow's compliance with this Consent Decree. 91. Until one year after termination ofthis Consent Decree,Dow shall retain,and shall instruct its contractors and agents to preserve,all documents,records, or other information, regardless ofstorage medium (e.g.,paper or electronic)in its or its contractors' or agents' possession or control, or that come into its or its contractors' or agents'possession or control,and that directly relate to Dow's performance ofits obligations under this Consent Decree. This information-retention requirement shall apply regardless ofany contrary corporate or institutional policies or procedures. At any time during this information-retention period, the United States may request copies ofany documents,records, or other information required to be maintained under this Paragraph. 92. Except for emissions data, including Screening Values,Dow may also assert that information required to be provided under this Section is protected as Confidential Business Information ( "CBI")under 40 C.F.R. Part 2. As to any information that Dow seeks to protect as CBI,Dow shall follow the procedures set forth in 40 C.F.R.Part 2,where applicable. Except for emissions data, including Screening Values,Dow reserves the right to assert any legal privilege and the United States reserves the right to challenge any claim ofprivilege. 93. This Consent Decree in no way limits or affects any right ofentry and inspection,or any right to obtain information, held by the United States pursuant to applicable federal laws, regulations, or permits, nor does it limit or affect any duty or obligation ofDow to maintain documents,records,or other information imposed by applicable federal or state laws,regulations,

or permits.

55

### XII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS

94. This Consent Decree resolves the civil claims ofthe United States for the violations alleged in the Complaint filed in this action and the Findings and Notice ofViolations from the date those claims accrued through the Date ofLodging. 95. The United States reserves all legal and equitable remedies available to enforce the provisions ofthis Consent Decree,except as expressly stated in Paragraph 94. This Consent Decree shall not be construed to limit the rights ofthe United States to obtain penalties or injunctive reliefunder the CAA,CWA, RCRA or implementing regulations,or under other federal laws,regulations, or permit conditions,except as expressly specified in Paragraph 94. The United States further reserves all legal and equitable remedies to address any situation that may present an imminent and substantial endangerment to the public health or welfare or the environment arising at, or posed by,the Facility,whether related to the violations addressed in this Consent Decree or otherwise. 96. In any subsequent administrative or judicial proceeding initiated by the United States for injunctive relief, civil penalties, or other appropriate reliefrelating to the Facility, Dow shall not assert, and may not maintain, any defense or claim based upon the principles ofwaiver,

res judicata, collateral estoppel, issue preclusion, claim preclusion, claim-splitting, or other defenses based upon any contention that the claims raised by the United States in the subsequent proceeding were or should have been brought in the instant case,except with respect to claims that have been specifically resolved pursuant to Paragraph 94 ofthis Section. 97. This Consent Decree is not a permit,or a modification ofany permit, under any federal, state, or local laws or regulations. Dow is responsible for achieving and maintaining compliance with all applicable federal, state, and local laws,regulations,and permits and Dow's

56compliance with this Consent Decree shall be no defense to any action commenced pursuant to any

such laws,regulations, or permits. The United States does not, by its consent to the entry ofthis Consent Decree,warrant or aver in any manner that Dow's compliance with any aspect ofthis Consent Decree will result incompliance with provisions ofthe CAA,or with any other provisions offederal, state, or local laws,regulations, or permits. 98. Except as expressly provided in Section VII with respect to Styron,this Consent Decree does not limit or affect the rights ofDow or ofthe United States against any third parties (including Styron),not party to this Consent Decree,nor does it limit the rights ofthird parties (including Styron),not party to this ConsentDecree,against Dow,except as otherwise provided by law. 99. Except as expressly provided in Section VII with respect to Styron, this Consent Decree shall not be construed to create rights in, or grant any cause ofaction to, any third party (including Styron)that is not a Party to this Consent Decree. XIII. COSTS 100. The Parties shall bear their own costs ofthis action, including attorneys' fees, except that the United States shall be entitled to collect the costs (including attorneys'fees)against Dow incurred in any action necessary to enforce this Consent Decree or to collect any portion of the civil penalty or any stipulated penalties due but not paid by Dow. XIV. NOTICES 101. Unless otherwise specified herein, whenever notifications, submissions, or communications are required by this Consent Decree,they shall be made in writing and addressed to the persons set forth below. Submission ofhard copies is required~and shall be sufficient to

57comply with the notice requirements ofthis Consent Decree. The email addresses listed below

are to permit the submission ofcourtesy copies. Notice or submission to the United States: Chief,Environmental Enforcement Section Environment and Natural Resources Division U.S. Department ofJustice Box 7611 Ben Franklin Station Washington,DC 20044-7611 Re: DOJ No. 90-5-2-1 -08935 Notice or submission to EPA: Air and Radiation Division EPA Region 5 77 W.Jackson Blvd.(AE-17J) Chicago, IL 60604 Attn: Compliance Tracker and Office ofRegional Counsel EPA Region 5 77 West Jackson Blvd.(C-14J) Chicago, IL 60604 For courtesy purposes only, electronic copies to: loukeris. constantinosnepa.

~o_v liszewski.christine(a~epa.gov Notice or submission to Dow: Site Leader The Dow Chemical Company 1790 Building Washington Street Midland,Michigan 48674 and

58Toby Alaska Threet

Counsel The Dow Chemical Company 1790 Building Washington Street Midland,Michigan 48674 Notice or submission to Std: Jason N. Scott Styron Manufacturing Site Leader/Production Leader Styron LLC Michigan Operations 1350/464 Buildings Midland,MI 48667 (989)638-9675 Jennifer Berke Levin Associate General Counsel Environmental Health &Safety Styron LLC 1000 Chesterbrook Blvd. Berwyn,PA 19312 Any Party may,by written notice to the other change its designated notice recipients)or notice addresses)provided above. Notices submitted pursuant to this Section shall be deemed submitted upon mailing,unless otherwise provided in this Consent Decree or by mutual agreement ofthe Parties in writing. XV. EFFECTIVE DATE 102. The Effective Date ofthis Consent Decree shall be the date upon which this Consent Decree is entered by the Court or a motion to enter the Consent Decree is granted, whichever occurs first, as recorded on the Court's docket.

59

### XVI. RETENTION OF JURISDICTION

103. The Court shall retain jurisdiction over this case until termination ofthis Consent Decree for the purposes ofresolving disputes arising under this Decree,entering orders modifying this Decree,or effectuating or enforcing compliance with the terms ofthis Decree. XVII. MODIFICATION 104. The terms ofthis Consent Decree may be modified only by a subsequent written agreement signed by the United States and Dow. Where the modification constitutes a material change to any term ofthis Consent Decree, it shall be effective only upon approval by the Court. 105. Any disputes concerning modification ofthis Decree shall be resolved pursuant to Section X ofthis Decree (Dispute Resolution); provided,however,that instead ofthe burden of proofas provided by Paragraph 87,the Party seeking the modification bears the burden of demonstrating that it is entitled to the requested modification in accordance with Federal Rule of Civil Procedure 60(b). XVIII. TERMINATION 106. By no sooner than after completion ofthe fifth LDAR audit required pursuant to Subsection V.K ofthis Decree,Dow may send the United States a Request for Termination ofthis Consent Decree. In the Request for Termination,Dow must demonstrate that it has maintained satisfactory compliance with this Consent Decree for the two year period immediately preceding the Request for Termination. In no event may this Consent Decree be terminated ifthe civil penalty and/or any outstanding stipulated penalties have not been paid. The Request for Termination shall include all necessary supporting documentation. 107. Following receipt by the United States ofDow's Request for Termination,the Parties shall confer informally concerning the Request and any disagreement that the Parties may

.1

### have as to whether Dow satisfactorily has complied with the requirements for termination. Ifthe

United States agrees that the Decree may be terminated, the Parties shall submit,for the Court's approval,a joint stipulation terminating the Decree. 108. Ifthe United States does not agree that the Decree may be terminated, Dow may invoke dispute resolution under Section X ofthis Decree. However,Dow shall not invoke dispute resolution for any dispute regarding termination unti160 days after sending its Request for Termination. XIX. PUBLIC PARTICIPATION 109. This Consent Decree shall be lodged with the Court for a period ofnot less than 30 days for public notice and comment in accordance with 28 C.F.R. § 50.7. The United States

reserves the right to withdraw or withhold its consent ifthe comments regarding the Consent Decree disclose facts or considerations indicating that the Consent Decree is inappropriate, improper,or inadequate. Dow consents to entry ofthis Consent Decree without further notice. XX. SIGNATORIES/SERVICE 110. The undersigned representatives ofDow,Styron, and the Assistant Attorney General for the Environment and Natural Resources Division ofthe Department ofJustice (or his

or her designee)each certify that he or she is fully authorized to enter into the terms and conditions ofthis Consent Decree and to execute and legally bind the Party he or she represents to this document. 111. This Consent Decree may be signed in counterparts, and its validity shall not be challenged on that basis.

61

### 112. Dow agrees not to oppose entry ofthis Consent Decree by the Court or to challenge

any provision ofthe Decree unless the United States has notified Dow in writing that it no longer supports entry ofthe Decree. 113. Dow agrees to accept service ofprocess by mail with respect to all matters arising under or relating to this Consent Decree and to waive the formal service requirements set forth in Rules 4and 5 ofthe Federal Rules ofCivil Procedure and any applicable Local Rules ofthis Court including,but not limited to, service ofa summons. XXI. INTEGRATION 114. This Consent Decree and its Appendix constitute the final,complete,and exclusive agreement and understanding between the Parties with respect to the settlement embodied in this Consent Decree and its Appendix and supersede all prior agreements and understandings,whether oral or written, concerning the settlement embodied herein. No other document,except for any plans or other deliverables that are submitted and approved pursuant to this Decree,nor any representation, inducement,agreement,understanding,or promise,constitutes any part ofthis Decree or the settlement it represents, and no such extrinsic document or statement ofany kind shall be used in construing the terms ofthis Decree

62XXII. FINAL JUDGMENT

115. Upon approval and entry ofthis Consent Decree by the Court,this Consent Decree shall constitute a final judgment ofthe Court in this action as to the United States and Dow. The Court finds that there is no just reason for delay and therefore enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58.

DATED this day of 2011.

UNITED STATES DISTRICT JUDGE EASTERN DISTRICT OF MICHIGAN

63We hereby consent to the entry ofthe Consent Decree in the matter ofUnited States v. The Dow

Chemical Company,subject to public notice and comment.

FOR THE UNITED STATES OF AMERICA 

# s ~~ I ACIA S. MORENO Assistant Attorney General Environment and Natural Resources Division United States Department ofJustice :~
~' ANNETTE M.LANG Environmental Enforcement Section Environment and Natural Resources Division P.O. Box 7611 Washington,D.C. 20044-7611 (202)514-4213 (202)616-6584 (fax) annette.lang@usdoj

. gov

BARBARA L. MCQUADE United States Attorney Eastern District of Michigan 

## By: ~-~.. 

# ~~~~ PETER A. CAPLA Assistant United States Attorney Eastern District of Michigan 211 W.Fort St., Suite 2001 Detroit, MI 48226 (313)226-9784 P-30643 peter.caplan@usdoj.govV4~e hereby consent to the entry ofthe Consent IJecxee in the mater ofUnited States v.Thy T7ow

Chemical Com an ,subject to public nptice anci cammextt.

FOR T~ UNITED STATES EIVVIRON1v1ENTFIL F'~ZQTECTI(}N AC~~NCY

Office oi~~'nforcement and Cnmptiance ~1.ssurance U.S.Environmental Protection Agency 1200 Pennsylvania Avenue,N.W. Washington,D~ 2~46~

AT~A1'vf 11~. KU ETZ `~-~ Dir~ct~r Office o~ Civil Enforeernent Office ofEnfarcemcnt and Compliance assurance U,S. Environmental Protection Agency 120{ Pennsylvania Avenue,N."VV'. Washingtan,DC 204{0We hereby consent to the entry of the Consent Decree in the matter of United States v. The Dow

Chemical Company,subject to public notice and comment.

FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

ROBERT A.KAPLAN Regional Counsel U.S. Environmental Protection Agency Region 5 Chicago, II.

SUSAN HEDMAN Regional Administrator U.S.Environmental Protection Agency Region 5 Chicago, ILWe hereby consent to the entry of the Consent Decree in the matter of United States v. The Dow

Chemical Company.

FOR THE DOW EMICAL COMPANY

EARL SHIPP Vice President 6/~~/,~o<< Dow Chemical Michigan Operations The Dow Chemical Company 1790 Building Washington Street Midland, Michigan 48674By executing this document,we hereby consent only to Section VII ofthis Consent Decree in the

matter ofUnited States v. The Dow Chemical Company.

FOR STYRON LLC

~ /JASON N. SCOTT `~ Styron Manufacturing Site Leader /Production Leader Styron LLC Michigan Operations 1350/464 Buildings Midland,MI 48667 (989)638-9675APPENDIX A Factors to be Considered and Procedures to be Followed

To Claim Commercial Unavailability This Appendix outlines the factors to be taken into consideration and the procedures to be followed for Dow to assert that aLow-E Valve or Low-E Packing is "commercially unavailable" pursuant to Paragraph 34 ofthe Consent Decree. I. FACTORS A. Nothing in this Consent Decree or this Appendix requires Dow to utilize any valve or packing that is not suitable for its intended use in a Covered Process Unit. B. The following factors are relevant in determining whether aLow-E Valve or Low-E Packing is commercially available to replace or repack an existing valve:

1. Valve type ball, gate, butterfly, needle)(this ELP does not require consideration ofa different type ofvalve than the type that is being replaced) 2. Nominal valve size 2 inches, 4 inches) 3. Compatibility ofmaterials ofconstruction with process chemistry 4. Valve operating conditions temperature,pressure) 5. Service life 6. Packing friction impact on operability ofvalve) 7. Whether the valve is part ofa packaged system or not 8. Retrofit requirements re-piping or space limitations) 9. Other relevant considerations C. The following factors may also be relevant,depending upon the process unit or equipment where the valve is located:

10. In cases where the valve is a component ofequipment that Dow is licensing or leasing from a third party,valve or valve packing specifications identified by the lessor or licensor ofthe equipment ofwhich the valve is a component 11. Valve or valve packing vendor or manufacturer recommendations for the relevant process unit components.

### II. PROCEDURES THAT DOW SHALL FOLLOW TO ASSERT COMMERCIAL

UNAVAILABILITY A. Dow shall comply with the following procedures ifit seeks to assert commercial unavailability under Paragraph 34 ofthe Consent Decree:

1. Dow must contact a reasonable number ofvendors ofvalves or valve packing that Dow,in good faith, believes may have valves or valve packing suitable for the intended use taking into account the relevant factors listed in Section I above.

a. For purposes ofthis Consent Decree,a reasonable number ofvendors presumptively shall mean no less than three. b. Iffewer than three vendors are contacted,the determination ofwhether such fewer number is reasonable shall be based on Factors (10)and (11)or on a demonstration that fewer than three vendors offer valves or valve packing considering Factors (1)— (9). 2. Dow shall obtain a written representation from each vendor, or equivalent documentation,that a particular valve or valve packing is not available as "Low-Emissions"from that vendor for the intended conditions or use.

a. "Equivalent documentation" may include e-mail or other correspondence or data showing that a valve or valve packing suitable for the intended use does not meet the definition of"Low-E Valve" or "Low-E Packing"in the Consent Decree or that the valve or packing is not suitable for the intended use.

b. Ifthe vendor does not respond or refuses to provide documentation, "equivalent documentation" may consist ofrecords ofDow's attempts to obtain a response from the vendor. 3. Each Compliance Status Report required by Section VI ofthe Consent Decree shall identify each valve that Dow otherwise was required to replace or repack,but for which,during the time period covered by the Report,Dow determined that aLow-E Valve and/or Low-E Packing was not commercially

-available. Dow shall provide a complete explanation ofthe basis for its claim ofcommercial unavailability, including,as an attachment to the Compliance Status Report, all relevant documentation. This report shall be valid for a period oftwelve months from the date ofthe report for the specific valve involved and all other similar valves,taking into account the factors listed in Part I.III. OPTIONAL EPA REVIEW OF DOW'S ASSERTION OF COMMERCIAL

UNAVAILABILITY A. At its option,EPA may review an assertion by Dow ofcommercial unavailability. If EPA disagrees with Dow's assertion, EPA shall notify Dow in writing, specifying the Low-E Valve or Low-E Packing that EPA believes to be commercially available and the basis for its view that such valve or packing is appropriate taking into consideration the Factors described in Part I. After Dow receives EPA's notice,the following shall apply:

1. Dow shall not be required to retrofit the valve or valve packing for which it asserted commercial unavailability (unless Dow is otherwise required to do so pursuant to another provision ofthe Consent Decree).

2. Dow shall be on notice that EPA will not accept a future assertion of commercial unavailability for: (i)the valve or packing that was the subject ofthe unavailability assertion; and/or (ii) a valve or packing that is similar to the subject assertion, taking into account the Factors described in Part I.

3. IfDow disagrees with EPA's notification, Dow and EPA shall informally discuss the basis for the claim ofcommercial unavailability. EPA may thereafter revise its determination, ifnecessary.

4. IfDow makes a subsequent commercial unavailability claim for the same or similar valve or packing that EPA previously rejected, and the subsequent claim also is rejected by EPA,Dow shall retrofit the valve or packing with the commercially available valve or packing unless Dow is successful under Subsection III.B below. B. Any disputes under this Appendix first shall be subject to informal discussions between Dow and EPA for a period not to exceed 60 days before Dow shall be required to invoke the Dispute Resolution provisions ofSection X ofthe Consent Decree. Thereafter, ifthe dispute remains,Dow shall invoke the Dispute Resolution provisions.