## Appendix S

Holcim-Clarksville BART Final Consent Agreement April 19, 2009REGIONAL HAZE AGREEMENT


### The parties hereto, the Missouri Department ofNatural Resources and Ho1cim (US) Inc. ("Holcim"), having agreed that entry of this Regional Haze Agreement (hereinafter "Agreemenf') is in the bestinterest ofthe parties and the public health and the environment, herebyrepresent and state as follows:
JURISDICTION



### I. The Missouri Department ofNatural Resources (hereinafter "Departmenf') is a duly authorized state agency created under Chapter 640 of the Revised Statutes of Missouri (as amended) to administer the programs assigned to it related to environmental control and the conservation and managementofnatural resources. 2. Chapter 643 of the Revised Statutes of Missouri (as amended) provides that the Directorofthe Department, onbehalfofthe Missouri AirConservation Commission, administers the provisions ofthe Missouri AirConservation Law. 3. Ho1cim is a Delaware corporation in good standing and registered to do business in Missouri in accordance with Missouri laws and is subject to the Missouri Air Conservation Law and the regulations adopted thereunder. Ho1cim owns and operates a portland cement manufacturing facility located in Clarksville, Pike County, Missouri ("Clarksville Planf'). Ho1cim is a person within the meaning of RSMo 643.020. 4. Pursuant to RSMo 643.060, the Director has authority andjurisdiction to issue this Agreement and to enforce the same. In 

### any action bythe Department to enforce the terms ofthis Agreement, Holcim agrees notto contest the authority orjurisdiction of the Director to enter into and enforce this Agreement. RSMo 643.060.4 provides that the Director ofthe Missouri Department ofNatural Resources is responsible for administering and enforcing the Missouri Air Conservation Law, investigating complaints, issuing orders and taking all actions necessary to implement the Missouri Air Conservation Law. RSMo 643.060.2 provides that the Director is authorized to enter into contracts as he deems necessary for carrying out the provisions of the Missouri Air Conservation Law. In addition, the Missouri Air Conservation Commission is granted the legal authority under RSMo 643.050 to develop and implementregulations and enterinto agreements to control airpollution.

5. The terms ofthis Agreement shall be construed in accordance with the applicable laws ofthe state ofMissouri and the United States.
STATEMENT OFPURPOSE


### 6. In entering into this Agreement, it is the mutual objective ofthe Department and Holcim to reduce the contributions of emissions from the Clarksville Plant to

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### regional haze at Mingo National Wildlife Refuge, Hercules Glade Wilderness Area, and Upper Buffalo Wilderness Area (in Arkansas), and to establish a schedule by which Holcim will achieve reductions in air pollution emissions of visibility impairing pollutants. This Agreement establishes enforceable emission limits for Emission Point EP-14 (main kiln 

### stack) pursuant to the Department's requirements to comply with the regional haze regulations identified in this Agreement which require the use of Best Available Retrofit Technology (BART) to applicable emission sources. This Agreement is not the result of any enforcement action or alleged non-compliance with any law, regulation, permit, or order and will enable Holcim to timely comply with the United States Environmental Protection Agency (EPA) and the Department deadlines for BART.
PARTIES BOUND



### 7. This Agreement shall apply to and be binding upon the parties, their agents, successors, and assigns and upon all persons, contractors, and consultants acting under orfor either the Department or Holcim orboth. Any changes in ownership or corporate status, includingbutnot limited to anytransfer ofassets orreal orpersonal property (other than as set forth in the next sentence), shall not affect the responsibilities of Holcim under this Agreement. If Holcim sells or otherwise transfers the Clarksville Plant, Holcim shall cause as a condition of such sale, the buyer of the Clarksville Plant to assume the obligations of Holcim under this Agreement in writing upon which Holcim shall be relieved ofits obligations under the Agreement. In such event, Holcim shall provide thirty (30) days prior written notice ofsuch assumptionto the Department.
8. The parties agree to undertake all actions required of them by the terms and conditions ofthis Agreement. 9. Notwithstanding the terms ofany contract, Holcim is responsible for its compliance with this Agreement and forinsuring that its contractors and agents comply with this Agreement. 10. The activities conducted under this Agreement are subject to oversight and approval bythe Department as provided in this Agreement and other sources oflaw. Holcim shall make all reasonable efforts to provide all necessary information consistent with this Agreementrequestedbythe Department.

LIABILITY


### 11. Nothing in this Agreement shall be considered an admission of any fact or acknowledgement ofany liabilitybyanyparty, nor shall anything in this Agreement be considered an admission ofany fact or acknowledgement ofany violation ofany law, regulation, permit or order but will enable Holcim to timely comply with established EPA and Department deadlines for compliance with the regional haze

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### regulations and requirements. Neither the State ofMissouri nor any agency thereof shall be held out as a party to any contract entered into by Holcim in carrying out activitiespursuantto this Agreement. 

### BACKGROUND
12. In 

### 1977, the U.S. Congress adopted § 169 (42 U.S.C. 7491) ofthe Clean Air Act (CAA), setting forth the national visibility goal ofrestoring pristine conditions in national parks and wilderness areas designated as Class I Areas. When the CAA was again amended in 1990, Congress added § 169B (42 U.S.C. 7492), authorizing further research and regular assessments of the progress made for visibility improvement. 13. EPA's Regional Haze Rule, 40 CFR 51.308 (part 

### P), was adopted July 1, 1999 and went into effect on August 30, 1999. The Regional Haze Rule aimed at achieving national visibility goals by2064. This rulemaking addresses the combined visibility effects of various pollution sources over a wide geographic region. The 1999 Regional Haze Rule also singles out certain older emission sources that have not beenregulated under otherprovisions ofthe CAA for additional controls. Therefore, older sources that contribute to visibility impairment in Class I areas are required to implement BART. 14. On May 24, 2002, the U.S. Court of Appeals, D.C. District Court ruled on a challenge brought by the American Com Growers Association against EPA's Regional Haze Rule of 1999. American Corn GrowersAssociation

### v. EPA, 

### 291 F3d 1. The Court denied the American Com Growers Association's challenge to the Regional Haze Rule and remanded the case to EPA. Pursuant to this remand, EPA proposedrevisions to the Regional Haze Rule. 15. On July 6, 2005, EPA published a revision to the Regional Haze Rule, including AppendixY, "Guidelines forBARTDeterminations Underthe Regional Haze Rule," which provides direction to states on determining which older sources may need to install BARTandhow 

### to determine BART. 16. Appendix Y of the Regional Haze Rule requires states 

### to identify sources constructed between 1962 and 1977 in certain industrial categories, including Portland cement production. Then, each state is allowed to consider whether the predicted (modeled) impact from each source's emissions on Class I areas has less than a significant contribution on visibility impairment (0.5 deciview). After both screening and refmed air quality modeling evaluations for Missouri sources, Holcim was identified as a contributorto visibilityimpairment at Mingo Wildlife Refuge and Hercules Glade Wilderness Area in Missouri and Upper Buffalo Wilderness Area in Arkansas due to its Sulfur Dioxide (S02) and Oxides ofNitrogen (NOx) emissions and is therefore required 

### to install BART. The Department also determined that the magnitude ofthe direct ParticulateMatter (PM) visibility impacts from Holcimatthe relevant Class I areas was very minimal. In addition, the controls already installed

Page 3 of9for direct PM emissions were evaluated and were determined to be sufficient to satisfYthe BART requirements. 17. Based on these findings, the Department requested an evaluation ofBART controls for S02 and NOx emissions at Holcim. An initial BART proposal was submittedby Holcim on April 20, 2008. Comments were provided by the Department which resulted in three additional submittals to clarifY information and explore additional control options. Subsequent comments were provided to ask for clarification of some additional options for BART. As a result, Holcim provided sufficient information for the Department's BART finding at the Clarksville Plant for the kiln system: EP-14 (mainkiln stack)
18. The Department's BART finding is based on the use ofmid-kiln firing oftires and reduced sulfur fuel sources (coal, tires, and synthetic fuel) to control NOx and S02 respectively from kiln operation.
AGREEMENT AND COMPLIANCE PLAN Subjectto the terms and conditions contained herein, the parties agree as follows: 19. This Agreement applies only to operation of the Clarksville Plant kiln system (Emission Point ID EP-14 main kiln stack). Unless otherwise specified in the Agreement, Holcim agrees to meet the following emission limits for the kiln system as expeditiously as practicable after approval ofMissouri's regional haze plan, but no laterthan four years after approval ofMissouri'sregional hazeplan: A. NOx 42,287 lb/dayusing a 30-dayrolling average B. S02 58,787Ib/dayusinga 30-dayrollingaverage 20. Compliance with the limits listed in paragraph 19 shallbe based on the existing continuous emission monitoring (CEM) system or an equivalent system utilized by Holcim thathasbeen approved bythe Department at all times when (a) fuel is being combusted in the kiln or (b) the kiln shell temperature exceeds 200°F and kiln rotation is occurring. When the circumstancesdescribed in (a) and (b) above are not present, no CEM data is required. Holcim shall be subject to the above listed monitoringrequirements upon theEPA's approval ofMissouri'sregional hazeplan. Except for routine CEMS calibration and maintenance activities, missing data due to CEMS availabilitywill befilled byusing the following methods:
Ifthe monitor data availability is at least 90.0% over the preceding 30 day rolling average, the owner or operator shall calculate substitute data for each hour ofeach missing dataperiod accordingto the followingprocedure: (1) Foramissing dataperiod ofless than or equal to 24hours, substitute the average ofthehourly concentrationsrecordedby apollutant concentration monitor for thehourbefore andthehourafterthemissing dataperiod.

Page4 of9(II) Forthe missing dataperiod ofmorethan 24hours, substitute the greaterof: (a) The 95th percentile hourly pollutant concentration recorded by a pollutant concentration monitor during the previous 720 quality-assured monitor operating hours; or (b) The average ofthe hourly concentrations recorded by a pollutant concentration monitorfor the hourbefore and thehourafter themissingdataperiod.
Ifthe monitor data availability is less than 90.0% for the previous thirty (30) day rolling average, the following substitution oranother alternative method agreed to by theDepartmentwill beutilized: S02

- 3,355 poundsperhourfor eachmissinghour, and NOx

- 2,202poundsperhourfor eachmissinghour.
Forroutine CEMS calibration and maintenance activities, missing emission datawill be substituted usingthe average ofthehourbefore andthehour after the activity.

21. As identified in item 20, Holcim shall calibrate and comply with the continuous emission monitoring system applicable requirements per40 CFR, Part 60, Appendix F, Quality Assurance Procedure 1 or other equivalent procedure approved by the Department. At the request ofthe DepartInent, Holcim will provide results ofany audits and RATAs. Holcim will be subject to the above calibration and quality assurancerequirements upon the EPA's approval ofMissouri's regional haze plan. 22. As identified in paragraph 20, Holcim shall record the hourly CEM data or data supporting lack of kiln operation to demonstrate compliance with the limits in paragraph 19. Holcim shall maintain these records for a period ofno less than five years. These records shall be kept at the Clarksville Plant; however, they may be maintained at a subsequent site provided that Holcim notifies the Department in writing thirty (30) days before any records are moved and provides the department with the address ofthe site where the records will be maintained and the name ofa contact person in the event the Department needs to inquire as to the records. Holcim shall submit an annual report to the Department detailing the daily and 30­ day rolling average emission S02 and NOx emission rates. The first annual report will be due one year and 60 days after EPA's approval ofMissouri's regional haze plan. Subsequentreports will bedue onthis same date each year.

23. The emission limits in this Agreement shall be incorporated into any construction or operationpermits issued for Holcim atthe ClarksvillePlant.

24. This Agreement shall be proposed by the Department for incorporation into the Regional Haze StateImplementation Plan forMissouri.

Page 5 of9BEST PROFESSIONALJUDGMENT
25. The requirements ofthis Agreement represent the best professionaljudgment ofthe Department based on information available as of the effective date of this Agreement. If circumstances change significantly so that data related to the commitments ofthis Agreement indicates an imminent threat ofdangerto the public health, safety or the environment or if the Department determines there is a significantly different threat other than the issues addressed herein, then the Department reserves the right to modify dates or requirements herein as it deems reasonably necessary to comply with the regional hazeregulations, provided that the Department gives Holcim at least 90 days notice and an opportunity to propose a compliance.schedule during the 90 days notice period. Holcim further reserves the right to seek review of any such modifications or additional requirements in accordance with paragraph 27.

FORCE, MAJEURE, EXCUSABLE DELAY,MODIFICATION
26. The following shall constitute the governing terms for force majeure, excusable delay, and modification oftheAgreement:

A. Except as set forth in paragraph G. below, Holcim shall perform the requirements under this Agreement within the time limits set forth herein unless the performance is prevented or delayed solely by events which constitute a force majeure. Forpurposes ofthis Agreement aforce majeure is defined as any event beyond the control of Holcim which could not be overcome by due diligence and which delays or prevents performance by a date required by this Agreement. Such events do not include increased costs ofperformanceorchanged economic circumstances. B. Holcim shall have the burden ofproving all claims offorce majeure. Failure to complybyreason offorce majeure shall not be construed as a violation of this Agreement. C. Holcim shall notify the Department in writing within ten (10) days after becoming aware ofan event which Holcim knew or reasonably should have known constituted force majeure. Such notice shall estimate the anticipated length ofdelay, its cause, measures to betaken to minimize the delay, and an estimated timetable for implementation ofthese measures. Failure to comply with the notice provision of this section shall constitute grounds for the Department, at its sole discretion, to deny Holcim an extension oftime for performance. D. Within sixty (60) days ofthereceipt ofwritten notice from Holcim ofa force majeure event, the Department shall notify Holcim of the extent to which

Page 6 of9modifications to this Agreement are necessary. In the event that the Department and Holcim cannot agreethat a force majeure eventhas occurred orifthere is no agreement on the length ofthe extension, the dispute shall be resolved as set forth inparagraph 27. E. Any modifications to any provision of this Agreement shall not alter the schedule for performance or completion of other tasks required by this Agreement, unless specifically agreed to by the parties in writing and incorporated into this Agreement. F. This Agreement may be amended by mutmil agreement ofthe Department and Holcim. Such amendments shall be in writing, shall have as their effective date the date on which they are signed by both parties and shall be incorporatedinto this Agreement. G. Holcim, voluntarily and ofits own accord and for reasons unrelated to this Agreement has indicated in November 2008 that it will cease clinker production at the Clarksville Plant during the first quarter of2009. Upon permanent cessation ofoperation ofthe Clarksville Plant kiln, Holcim at its election may formalize such permanent cessation ofthe kiln in a letter to the Department's Director ofthe Division ofEnvironmental Quality in which it may agree that any operating permits and construction permits issued by the AirPollution Control Program for the kiln system shall be terminated. In the event that Holcim sends the letter and agrees to the termination of such permits, this Agreement shall be null and void and ofno further force and effect, except that Holcim shall submit any compliance reports required to be submittedhereunderup to thedate ofsuchtermination.

DISPUTE RESOLUTION
27. The parties recognize that a dispute may arise between them regarding implementation of the action to be taken as herein set forth or other terms or provisions ofthis Agreement.

A. If such dispute arises, the parties will endeavor to settle it by informal negotiations between themselves. If the parties cannot resolve the issue informally within a reasonable period of time, either of the parties may commence a non-contested case by notifying the other in writing stating its position withregard to the dispute and its rationale. A partyreceiving such a notice of dispute will respond in writing within thirty (30) days stating its position. The Department orHolcim shall then have an additional thirty (30) day period or such longer time as the parties agree to respond. Ifthe parties are still unable to reach an agreement, the matter shall be referred to the Department's Director ofthe Division ofEnvironmental Quality, who shall

Page 7 of9decide the matter and provide a written statement ofhis decision which shall be incorporated into the Agreement. B. This dispute resolution procedure shall not preclude any party from having direct recourse to court ifotherwise availableunderMissouri law.
OTHER CLAIMS AND PARTIES
28. Nothing in this Agreement shall constitute orbe construed as a release for any claim, cause ofaction or demand in law or equity against any person, firm, partnership, or corporation not a signatoryto this Agreement for any liabilityitmayhave arising out oforrelating in any wayto this Agreement

.

. EFFECTIVE DATE, TERMINATION

29. This Agreement shall become effective when signed bythe Director ofthe Missouri Department ofNatural Resources orhis designee. 30. Except as expressly set forth in paragraph 26.0., this Agreement will be terminated at such time that it is superseded by a future agreement, regulation, or other enforceable documentthat contains equivalent ormore stringent emission limits.

Page 8 of9AUTHORIZATION OF SIGNATORIES TO EXECUTE THE AGREEMENT AND BIND THE PARTIES
31. The parties hereto have affixed their signatures on the dates inserted below to acknowledge their agreement to this Agreement. The signatories to this Agreement certify that they are authorized to execute and to legally bind the parties they representto this Agreement.

Vi ePresident

- Environmental and Governmental Affairs Date: 'D<"\

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James L. Kavanaugh AirPollution

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