Appendix S 

Holcim-Clarksville BART Final Consent Agreement 

April 19, 2009 
REGIONAL HAZE AGREEMENT 


The parties hereto, the Missouri Department of Natural Resources and Ho1cim (US) Inc. 

("Holcim"), having agreed that entry of this Regional Haze Agreement (hereinafter 

"Agreemenf') is in the best interest of the parties and the public health and the environment, 

hereby represent and state as follows: 

JURISDICTION 

I. 	 The Missouri Department of Natural 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 management of natural resources. 

2. 	 Chapter 643 of the Revised Statutes of Missouri (as amended) provides that the 

Director of the Department, on behalf ofthe Missouri Air Conservation Commission, 

administers the provisions ofthe Missouri Air Conservation 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 and jurisdiction to issue this 

Agreement and to enforce the same. In any action by the Department to enforce the 

terms of this Agreement, Holcim agrees not to contest the authority or jurisdiction of 

the Director to enter into and enforce this Agreement. RSMo 643.060.4 provides 

that the Director of the Missouri Department of Natural 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 implement regulations and enter into agreements to control air pollution. 

5. 	 The terms of this Agreement shall be construed in accordance with the applicable 

laws of the state of Missouri and the United States. 

STATEMENT OF PURPOSE 

6. In entering into this Agreement, it is the mutual objective of the 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 or for either the Department or Holcim or both. Any changes in ownership or 

corporate status, including but not limited to any transfer of assets or real or personal 

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 of its obligations under 

the Agreement. In such event, Holcim shall provide thirty (30) days prior written 

notice of such assumption to the Department. 

8. 	 The parties agree to undertake all actions required of them by the terms and 

conditions of this Agreement. 

9. 	 Notwithstanding the terms of any contract, Holcim is responsible for its compliance 

with this Agreement and for insuring that its contractors and agents comply with this 

Agreement. 

10. 	 The activities conducted under this Agreement are subject to oversight and approval 

by the Department as provided in this Agreement and other sources of law. Holcim 

shall make all reasonable efforts to provide all necessary information consistent with 

this Agreement requested by the Department. 

LIABILITY 

11. 	 Nothing in this Agreement shall be considered an admission of any fact or 

acknowledgement of any liability by any party, nor shall anything in this Agreement 

be considered an admission of any fact or acknowledgement of any violation of any 

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 of Missouri nor any agency thereof 

shall be held out as a party to any contract entered into by Holcim in carrying out 

activities pursuant to this Agreement. 

BACKGROUND 

12. 	 In 1977, the U.S. Congress adopted § 169 (42 U.S.C. 7491) of the Clean Air Act 

(CAA), setting forth the national visibility goal of restoring 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 by 2064. 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 

been regulated under other provisions 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 Growers Association 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 

proposed revisions to the Regional Haze Rule. 

15. 	 On July 6, 2005, EPA published a revision to the Regional Haze Rule, including 

Appendix Y, "Guidelines for BART Determinations Under the Regional Haze Rule," 

which provides direction to states on determining which older sources may need to 

install BART and how 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 contributor to visibility impairment 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 of Nitrogen (NOx) emissions 

and is therefore required to install BART. The Department also determined that the 

magnitude ofthe direct Particulate Matter (PM) visibility impacts from Holcim at the 

relevant Class I areas was very minimal. In addition, the controls already installed 

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for direct PM emissions were evaluated and were determined to be sufficient to 

satisfY the BART requirements. 

17. 	 Based on these findings, the Department requested an evaluation of BART controls 

for S02 and NOx emissions at Holcim. An initial BART proposal was submitted by 

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 (main kiln stack) 

18. 	 The Department's BART finding is based on the use of mid-kiln firing of tires and 

reduced sulfur fuel sources (coal, tires, and synthetic fuel) to control NOx and S02 

respectively from kiln operation. 

AGREEMENT AND COMPLIANCE PLAN 

Subject to 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 of Missouri's regional haze plan, but 

no later than four years after approval ofMissouri's regional haze plan: 

A. NOx 42,287 lb/day using a 30-day rolling average 

B. S02 58,787Ib/dayusing a 30-dayrolling average 

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 that has been approved by the 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 circumstances described in (a) and (b) above are not 

present, no CEM data is required. Holcim shall be subject to the above listed 

monitoring requirements upon the EPA's approval ofMissouri's regional haze plan. 

Except for routine CEMS calibration and maintenance activities, missing data due to 

CEMS availability will be filled by using the following methods: 

If the 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 of each 

missing data period according to the following procedure: 

(1) For a missing data period of less than or equal to 24 hours, substitute 

the average ofthe hourly concentrations recorded by a pollutant 

concentration monitor for the hour before and the hour after the missing data period. 

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(II) For the missing data period ofmore than 24 hours, substitute the greater of: 

(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 of the hourly concentrations recorded by a pollutant concentration 

monitor for the hour before and the hour after the missing data period. 

If the monitor data availability is less than 90.0% for the previous thirty (30) day 

rolling average, the following substitution or another alternative method agreed to by 

the Department will be utilized: 

S02 - 3,355 pounds per hour for each missing hour, and 

NOx - 2,202 pounds per hour for each missing hour. 

For routine CEMS calibration and maintenance activities, missing emission data will 

be substituted using the average of the hour before and the hour after the activity. 

21. 	 As identified in item 20, Holcim shall calibrate and comply with the continuous 

emission monitoring system applicable requirements per 40 CFR, Part 60, Appendix 

F, Quality Assurance Procedure 1 or other equivalent procedure approved by the 

Department. At the request of the DepartInent, Holcim will provide results of any 

audits and RA TAs. Holcim will be subject to the above calibration and quality 

assurance requirements 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 of no 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 of the site where the records will be maintained and the name of a 

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 of Missouri's regional haze 

plan. Subsequent reports will be due on this same date each year. 

23. 	 The emission limits in this Agreement shall be incorporated into any construction or 

operation permits issued for Holcim at the Clarksville Plant. 

24. 	 This Agreement shall be proposed by the Department for incorporation into the 

Regional Haze State Implementation Plan for Missouri. 

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BEST PROFESSIONAL JUDGMENT 


25. 	 The requirements of this Agreement represent the best professional judgment of the 

Department based on information available as of the effective date of this 

Agreement. If circumstances change significantly so that data related to the 

commitments of this Agreement indicates an imminent threat of danger to 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 haze regulations, 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 of the Agreement: 

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. For purposes ofthis Agreement a force 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 

ofperformance or changed economic circumstances. 

B. 	Holcim shall have the burden of proving all claims of force majeure. Failure 

to comply by reason of force 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 of an event which Holcim knew or reasonably should have 

known constituted force majeure. Such notice shall estimate the anticipated 

length of delay, its cause, measures to be taken to minimize the delay, and an 

estimated timetable for implementation of these 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 of time for 

performance. 

D. 	 Within sixty (60) days of the receipt of written notice from Holcim of a force 

majeure event, the Department shall notify Holcim of the extent to which 

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modifications to this Agreement are necessary. In the event that the 

Department and Holcim cannot agree that a force majeure event has occurred 

or if there is no agreement on the length ofthe extension, the dispute shall be 

resolved as set forth in paragraph 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 of the 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 

incorporated into this Agreement. 

G. 	 Holcim, voluntarily and of its 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 of 2009. Upon 

permanent cessation of operation of the Clarksville Plant kiln, Holcim at its 

election may formalize such permanent cessation of the kiln in a letter to the 

Department's Director of the Division of Environmental Quality in which it 

may agree that any operating permits and construction permits issued by the 

Air Pollution 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 of no further force and 

effect, except that Holcim shall submit any compliance reports required to be 

submitted hereunder up to the date of such termination. 

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 of this 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 with regard to the dispute and its rationale. A party receiving such a 

notice of dispute will respond in writing within thirty (30) days stating its 

position. The Department or Holcim shall then have an additional thirty (30) 

day period or such longer time as the parties agree to respond. If the parties 

are still unable to reach an agreement, the matter shall be referred to the 

Department's Director of the Division of Environmental Quality, who shall 

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decide the matter and provide a written statement of his decision which shall 

be incorporated into the Agreement. 

B. 	 This dispute resolution procedure shall not preclude any party from having 

direct recourse to court if otherwise available under Missouri law. 

OTHER CLAIMS AND PARTIES 

28. 	 Nothing in this Agreement shall constitute or be construed as a release for any claim, 

cause of action or demand in law or equity against any person, firm, partnership, or 

corporation not a signatory to this Agreement for any liability it may have arising out 

ofor relating in any way to this Agreement . 

. EFFECTIVE DATE, TERMINATION 

29. 	 This Agreement shall become effective when signed by the Director of the Missouri 

Department of Natural Resources or his 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 document that contains equivalent or more stringent emission limits. 

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AUTHORIZATION 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 

represent to this Agreement. 

Vi e President - Environmental and Governmental Affairs 


Date: 'D<"\ t 2. 00 ~ 

James L. Kavanaugh 


Air Pollution c;trO! Pro,
 ¥.I ;;'00 

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