### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 1 of 69

[NTHEUNITED STATES DISTRICT COURT FORTHEDISTRICT OF DELAWARE

UNITED STATES OF AMERICA, STATE OF DELAWARE DEPARTMENT OF NATURAL RESOURCES 

### & ENVIRONMENTAL CONTROL, SOUTHCAROLINA DEPARTMENT OF HEALTH & ENVIRONMENTAL CONTROL and the CRA TTANOOGA-HAMILTON COUNTY AIRPOLLUTION CONTROL BOARD Plaintiffs,



### v. INVISTA S.ft r.L Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No.

___ _ ) ) Judge ) ) )

CONSENTDECREE

### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 2 of 69

TABLE OF CONTENTS

I. JURISDICTION AND VENUE

..........................................................................................3 II. PARTIES BOUND

...............................................................................................................4 III. DEFINITIONS

.....................................................................................................................4 IV. NONATI'AINMENTNEW SOURCE REVIEW (NNSR) 

### I PREVENTION OF SIGNIFICANT DETERIORATION (PSD) REQUIREMENTS

......................................11 A. ELECTION PROVISIONS ANDINTERIM CONTROLS

..................................ll B. NOx EMISSIONS CONTROLS AND LIMITS

....................................................12 

### C. S02 EMISSION REDUCTIONS AND CONTROLS

...........................................

### 23 D. PARTICULATEMATTEREMISSIONS LIMIT

.................................................25 E. PROHIBITION ON NETTING CREDITS OROFFSETS FROMREQUIRED CONTROLS

..........................................................................................................25 V. NSPSFLARING DEVICES

..............................................................................................27 VI. BENZENE WASTENESHAP PROGRAMENHANCEMENTS

..............;.....................27 VII. LEAK DETECTION AND REPAIR PROGRAMENHANCEMENTS

...........................35 VIII. RESOLUTION OF CLAIMS

............................................................................................43 IX. PAYMENTOF CIVIL PENALTIES

....................................................................;...........44 X. STIPULATED PENALTIES I VIOLATION OF CONSENT DECREE

..........................45 XL INVISTA'S CERTIFICATIONS

.......................................................................................50 XII. PERIODIC REPORTING

......................................................."

.........................................51 XIII. REVIEW AND APPROVAL OF SUBMITTALS

............................................................52 XIV. FORCE MAJEURE

...........................................................................................................52 XV. DISPUTE RESOLUTION

.................................................................................................54 XVI. PERMITS

...........................................................................................................................55

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XVII. INFORMATION COLLECTION AND RETENTION

....................................................57 XVIII. NOTICES

...........................................................................................................................58 XIX. SALES ORTRANSFERS OF OWNERSHIP INTERESTS

.............................................60 XX. EFFECTIVE DATE

...........................................................................................................61 XXI. RETENTION OFJURISDICTION

...................................................................................61 XXII. MODIFICATION

..............................................................................................................62 XXIII. PUBLIC COMMENT

.......................................................................................................62 XXIV. GENERAL PROVISIONS

................................................................................................62 XXV. COSTS OF SUIT

...............................................................................................................63 XXVI. ENTRY OF CONSENTDECREE

....................................................................,...............63 XXVII. TERMINATION OF CONSENT DECREE

...................................................................64 XXVIII. SIGNATORIES/SERVICE

............................................................................................65 XXIX. FINAL JUDGMENT

.........................................................................................................65

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Appendix A: Appendix B: Appendix C:

Appendix D: TABLE OFAPPENDICES List ofViolations Resolved From Tabs 3-16 ofINVISTA'sCorporate Audit. Agreement Final Report General Audit Findings List ofViolations Resolved From Tabs 3-16 ofINVIST A's Corporate Audit AgreementFinal Report PSDINNSR and NSPS Audit Findings List ofViolations Resolved From Tabs 3-16 ofINVISTA's Corporate Audit Agreement Final Report Summary ofBenzene!:\fESHAP and LDAR Audit Findings INVISTA's Corporate Audit Agreement Final Audit Report, Tabs 3-16

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CONSENTDECREE Whereas, this Consent Decree is made by and between the United States ofAmerica, at the request and on behalfofthe Administrator ofthe United StatesEnvironmental Protection Agency ("EPA"), the State ofDelaware DepartmentofNatural Resources and Environmental Control, the SouthCarolina Department ofHealth & Environmental Control, the ChattanoogaHamiltonCounty Air Pollution Control Board (collectively "Plaintiffs") and INVISTA S.ft 

### r.I ("INVISTA"). Whereas, Plaintiffs, by and throughtheir undersigned counsel, have simultaneously filed Complaints and lodged this ConsentDecree against INVISTA. Whereas, INVISTA is a privately-owned integrated fibers and polymers company registered as a foreign limited liability company in the State ofDelaware and headquartered in Wichita, Kansas. Whereas, on April 30, 2004 (the "Closing Date"), E.L du Pontde Nemours and Company and INVISTA finalized the sale ofthe DuPontTextiles & Interiors assets to INVISTA S.a r.l. The transaction involved over forty sites worldwide. Twelve facilities were located in the United States, specifically at: Athens, GA; Calhoun, GA; Camden, SC; Chattanooga, TN; Dalton, GA; Kinston, NC; LaPorte, TX; Martinsville, VA; Orange, TX; Seaford, DE; Victoria, TX; and Waynesboro, VA ("Acquired Facilities"). Whereas, EPA recognizes the critical role ofenvironmental auditing in protectinghuman health and the environment by identifYing, correcting, and ultimately preventing violations of environmental laws, particularly by responsible corporate citizens and new owners. Whereas, as a result ofthe identification and disclosure ofceltain pre-Closing Date environmental noncompliance existing at some ofthe Acquired Facilities, INVISTA and EPA in July and August 2004 agreed that, pursuantto EPA's Policy on Incentives for Self-Policing: Discovery, Disclosure, Correction, and Prevention ofViolations, 65 Fed. Reg. 19618 (Apr. 11, 2000) ("EPA's Audit Policy"), INVISTA would continue implementation ofits Compliance Assurance Management System ("CAMS") and conduct audits at the Acquired Facilities (hereinafter referred to as the "CorporateAudit Agreement"). In ord';rto avail itselfofthe benefits afforded under EPA's Audit Policy, INvrSTA entered into the Corporate Audit Agreement and was required thereunderto complete environmental compliance audits in addition to continued implementation ofits CAMS at the Acquired Facilitiescovering the following statutes and implementingregulations thereot: corresponding state or local laws and regulations, and any permits issued under these laws (hereinafter referred to collectively as "Environmental Requirements"): the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.c. §§ 1100I to 11050; the Clean Water Act (CWA), 42 U.S.c. §§ 1251 to 1387; the Resource Conservation and Recovery Act (RCRA), 42 U.S.c. §§ 6901 to 6992k; the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136 to 136y; Section 103(a) ofthe Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9603(a); the Safe Drinking Water Act (SDWA), 42 U.S.c. §§ 3001'to 300j-26; and the Clean Air Act (CAA), 42 U.S.c. §§ 7401 to 7671q.

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Whereas, overthe course of33 months, INVISTA conducted 23 comprehensive and 22 focused environmental audits examining the pre- and post-Closing Date compliance ofthe Acquired Facilities with the Environmental Requirements. During and upon completion ofthose audits, consistentwith EPA's Audit Policy, INVISTAtimely disclosed the violations identified in Appendices A, B, and C. Whereas for the findings contained in Appendices A, B, and C, the Plaintiffs performed reviews ofINVISTA's quarterly and final reports submitted pursuantto the CorporateAudit Agreement, which detailed the auditors' factual, technical, and legal findings. The Plaintiffs' review also included site visits tothree Acquired Facilitiesthat were: related tothe findings of violation and consideration ofappropriate remedies, a series oftechnical meetings, legal and technical correspondence regarding the findings ofviolations andccnsideration ofappropriate remedies, supplemental information requests, and a review ofinfomlation and site-specific data submitted by INVIST A in response to Plaintiffs' requests. After thatreview thePlaintiffs determined, based on the foregoing, that violations ofEnvironmental Requirements had occurred as set forth in Appendices A, B, and C. Whereas, based upon the results ofthose audits, the United States alleges thatviolations ofEnvironmental Requirements havetaken place at INVIST A'sAcquired Facilities as set forth in Appendices A, B, and C, andthat INVIST A has certified that all violations in Appendix A have beencorrected. Whereas, dueto significant complexities requiring further investigation, analysis, and potential corrective actions, INVIST A and EPA have agreed to resolve RCRA and C W A disclosures pertainingto the wastewater treatment and conveyance systems at INVISTA's LaPorte, Orange, and Victoria facilities in a future agreement, ifnecessary, with the understanding thatthis Consent Decree shall notprevent such disclosures from receiving coverage under EPA'sAudit Policy. Whereas, based on the representations by INVIST A, EPA**ha~;** determined that the violations as setforth in AppendicesA, B, and C have metthe conditions ofEPA's Audit Policy and are appropriate for resolution in accordance with the Policy. Whereas, based upon the results ofthe audits, the United States, the State ofDelaware DepartmentofNatural Resources and Environmental Control, the South Carolina Departmentof Health & Environmental Control, and the Chattanooga-Hamilton County Air Pollution Control Board allege that violations ofcertain Clean Air Act programs and their implementing federal, state, and/or local regulations havebeen andlor arecontinuing totake place at certain of INVISTA's Acquired Facilities, including: the Nonattainment New Source Review andlor Prevention ofSignificant Deterioration programs (NNSRlPSD), 42 U.S.c. §§ 7502, 7503, and 7475; the New Source Performance Standards (NSPS), 42 U.S.c. § 7411; National Emissions Standards for Hazardous Air Pollutants (NESHAP), 42 U.S.c. § 7412; and Leak Detection and Repair (LDAR) requirements 42 U.S.c. §§ 7411-7412. Whereas, the Plaintiffs and INVISTA wish to resolve the violations ofEnvironmental Requirements that INVISTA has already corrected or is required to correct under this Decree by

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providing for the performance ofinjunctive reliefand payment ofcivil penalties for the disclosed violations,as provided herein. Whereas, the Plaintiffs and INVIST A agree that the amount ofcivil penalty set forth herein was negotiated in recognition ofINVISTA's audit ofthe AcquiredFacilities and agreementto disclose the violations it discovered. Whereas, the Plaintiffs and lNVISTA agree, and this Court by entering this Consent Decree finds, that: (i) this Consent Decree has been negotiated by the Parties in good faith and at arm's length; (ii) settlement ofthis matter will avoid prolonged and complicated litigation among the Parties; and (iii) this Consent Decree is fair, reasonable, in the public interest and consistent with the goals ofthe Environmental Requirements. Whereas, INVISTA consents to the simultaneous filing ofthe complaints and lodging of this ConsentDecree against INVISTA, without the admission ofliabilityorany adjudication on any issue offact or law. THEREFORE, upon the consent and agreement ofthe Parties to this ConsentDecreeby their attorneys and/or authorized officials, the Parties agree as follows: I. JURISDICTIONAND VENUE 1. This Court shall havejurisdiction overthis matter pursuant to 28 U.S.c. §§ 157, 1331, 1334, 1345, 1355 and 1367; Sections 113, 167 and 304(b)(I)(B) ofthe CAA, as amended, 42 U.S.c. §§ 7413, 7477 and 7604(b)(I)(B); Sections 309 and 311(b)(7)(E) ofthe CWA, 33 U.s.c. §§ 1319, 1321(b)(7)(E); Section 325(c)(4) ofEPCRA, 42 U.S.c. § 11045; Section 109 of CERCLA, 42 U.S.C. § 9609; Sections 16 and 27(a) ofFIFRA, 7 U.S.c. §§ 136n and 136w-2(a); Sections 1414(b) and 1423(b) ofthe SDWA, 42 U.S.C. §§ 300g-3(b), 300h-2(b); and Sections 3008(a) and 9006(e) ofRCRA,42 U.s.c. §§ 6928(a), 6991(e). 2. Venue is proper in thisjudicial district under 28 U.S.C. §§ 1391(b)-(c) and 1395(a); CAA § 113(b), 42 U.s.c. § 7413(b); FIFRA § 16, 7 U.S.C. § 136n; CWA §§ 309(b), 311(b)(7)(E), 33 U.S.c. §§ 1319(b), 1321 (b)(7)(E); CERCLA § 109(c), 42 U.S.C. § 9609(c); EPCRA §§ 325(a)-(c), 42 U.S.C. §§ 11045(a)-(c); SDWA §§ 1414(b) and 1423(b), 42 U.s.c. §§ 300g-3(b), 300h-2(b); and RCRA §§ 3008(a), 9006, 42 U.S.c. §§ 6928(a), 699Je(a). 3. Solely for the purposes ofthis Consent Decree and the underlying Complaints, INVISTA waives all objections and defenses that it may have to the Court'sjurisdiction over this action, to the Court'sjurisdiction over INVISTA, and to venue in**thi~** District. For purposes of

. the Complaint filed by the Plaintiffs in this matter and resolved bythe Consent Decree, and for

purposes ofentry and enforcementofthis ConsentDecree, INVIST A waives any defense or objection based on standing. This Consent Decree shall not create any rights in or grant any cause ofaction to any party other than the Plaintiffs and INVIST A. This Consent Decree does not limit or affect the rights ofINVIST A orofany ofthe Plaintiffs against third parties who are not a party to this ConsentDecree, nor shall this Consent Decree be cDnstrued to create rights in, or grant any cause ofaction to, any third parties not a party to this Consent Decree. Except as

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provided in Section XXIII (Public Comment) ofthisConsent Decree, the Parties consentto entry ofthis Consent Decree. 

### II. PARTIES BOUND 4. The provisions ofthisConsentDecree shall apply to the Acquired Facilities. This ConsentDecree is binding on the United States, the State ofDelaware DepartmentofNatural Resources and Environmental Control, the South Carolina Department ofHealth & Environmental Control, the Chattanooga-Hamilton County Air Pollution Control Board, INVISTA and INVISTA's successors, transferees, grantees and assigns until the Consent Decree is terminated pursuantto Section XXVII (Termination). Notransfer ofownership oroperation ofan Acquired Facility shall relieve INVISTA ofits obligation to ensure that the terms ofthe Decree are implemented, unless the requirements ofSection XIX (Sales orTransfers) are met. 5. INVISTA shall provide a copy ofthe applicable provisions ofthis Consent Decreeto all vendors, suppliers, consultants, contractors, agents and any other company orother organization performing any ofthe work described under Sections IV (NNSRlPSD), V (NSPS), VI (BWON), or VII (LDAR) ofthisConsentDecree. Notwithstandhg anyretention of contractors, subcontractors, or agents to perform any workrequired under this Consent Decree, INVIST A shall be responsible for ensuring that all work is performed in accordance with the requirements ofthis Consent Decree. In any action to enforce this CJnsentDecree, INVISTA shall not assert as a defense the failure ofits officers, directors, employees, servants, agents or contractors to take actions necessaryto comply with this Consent Decree, unless INVIST A establishes that such failure resulted from a Force Majeure event as cefined in this Consent Decree. 

### III. DEFINITIONS 6. Unless otherwise defined herein, terms used in this Consent Decree shall have the meaning given to thoseterms in the CW A, EPCRA, CAA, FIFRA, CERCLA, and RCRA and the regulations promulgated thereunder. Whenever the terms listed below are used in this ConsentDecree, the following definitions shall apply: A. A "24-Hour Rolling Average Emission Rate" shall be expressed as IbfMMBTU for each pollutant in question and calculated in accordance with the following procedure: first, sum the total pounds ofthe pollutant in question emitted from the Unit during the mostrecent clockhour and the previous 23 clock hours; second, sum the total heat input to the Unit in MMBTU during the most recent clock hour and the previous 23 clock hours; and third, divide the total number ofpounds ofthe pollutant emitted during the 24 hour period by the total heat input during the 24 hour period. A new 24-Hour Rolling Average Emission Rate shall be calculated for each additional clock hour ofoperation. B. A "30-Day Rolling Average Emission Rate" shall be expressed as IbfMMBTU for each pollutant in question and calculated in accordance with the following procedure: first, sum the total pounds ofthe pollutant in question emitted from the Unit during an OperatingDay and the previous 29 Operating Days; second, sum the total heat input to the Unit

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in MMBTU during an Operating Day and the previous 29 Operating Days; and third, divide the total numberofpounds ofthe pollutant emitted duringthe 30 Operating Days by thetotal heat input during the 30 Operating Days. A new 30-DayRolling Average Emission Rate shall be calculated for each Operating Day. Each 30-Day Rolling Average Emission Rate shall include all emissions that occur during all periods ofStartup, Shutdown, and Malfunction within an Operating Day. C. A "24-Hour Roiling Average Removal Efficiency" means the.percent reduction in the mass ofeach pollutant in questionachieved by a Unit's pollution control device overa 24-hourperiod. This percent reduction shall be calculated by subtracting the outlet 24- Hour RollingAverage Emission Rate from the inlet 24-Hour Rolling Average Emission Rate, dividingthat difference by the inlet 24-Hour Rolling Average Emission Rate, and then mUltiplying by 100. A new 24-Hour Rolling Average Removal Efficiency shall be calculated for each new hour. D. A"30-Day Rolling Tonnage" means the sum ofthe tons ofeach pollutant in question emitted from the Unit orUnits in the most recent calendarday and the previous twenty-nine (29) calendar days. A 30-Day Rolling Tonnage shall be calculated for each new calendar day in accordance with the provisions ofthis ConsentDecree. The calculation ofeach 30-DayRollingTonnage shall includethe pollutants emitted during periods ofStartup, Shutdown, and Malfunction within each calendar month. E. A "12-Month Rolling Heat Input Percentage" means the sum ofthe total heat input from the fuel type in question in the most recent complete month and the previous eleven (11) months divided by the sum ofthe total heat input from all fuel types in the most recent completemonth and the previous eleven (11) months. F. A "12-Month Rolling Tonnage" means the sum ofthe tons ofthe pollutant in question emitted from the Unit orUnits in the most recent complete month and the previous eleven (11) months. A 12-MonthRolling Tonnage shall be calculated for each new complete calendar month in accordance with the provisions ofthis Consent D<:cree. The calculation ofa 12-Month Rolling Tonnage shall include the pollutants emitted during periods ofStartup, Shutdown, and Malfunction within each calendar month. Calculation ofthe first 12-Month Rolling Tonnage shall commence 12 months after the applicable emission limit takes effect. G. "Acquired Facilities" shall mean the INVISTA facilities located at: Athens, GA; Calhoun, GA; Camden, SC; Chattanooga, TN; Dalton, GA; Kinston, NC; LaPorte, TX; Martinsville, VA; Orange, TX; Seaford, DE; Victoria, TX; and Waynesboro, VA. H. "ADN" shall mean adiponitrile. L "ADN Area" shall mean the area where adiponitrile is manufactured and does not include the HCN process orPromoter Area atthe Orange Facility ortheHCN process area at Victoria.



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J. "Applicable Co-Plaintiff' shall mean the following parties with respect to the following Acquired Facilities: Camden Facility

- the SCDHEC; ChattanoogaFacility

- the CHCAPCB; and Seaford Facility

- State ofDelaware through the Dl'lREC. K. "Audit," except as used in Section VII (Leak Detection and Repair Program Enhancements), shall mean the assessments ofcompliance with the Environmental Requirements conducted by or at the direction ofINVISTA at the Acquired Facilities pursuant to the Corporate Audit Agreement between INVISTA and EPA. L. "AthensFacility" means the INVISTA facility located at 110 Voyles Road, Athens, Georgia. M. "CalhounFacility" means the INVISTA facilily located at220 Boling Industry Way, Calhoun, Georgia. N. "Camden Facility" means the INVISTA facility located at 643 Highway 1 South, Lugoff, South Carolina. O. "CEMS" or "Continuous Emission Monitoring System" means, for obligations involving NOx and S02under this Consent Decree, the d<:vices defined in 40 C.F.R. § 60 Appendix B and installed and maintained as required by40 C.F.R. Part 60; for the Camden Facility, which is subjectto 40 C.F.R. Part 75, its CEMS may be instIlled, certified, and maintained under 40 C.F.R. Part 75, provided thatthe Facility reports emissions required by this Consent Decree pursuant to the provisions of40 C.F.R. Part 60. P. "CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, and its implementing regulations. Q. "CHCAPCB" means the Chattanooga-Hamilton CountyAir Pollution Control Board and any successor departments or agencies. R. "ChattanoogaFacility" means the INVIST A facility located at 4501 N. Access Road, Chattanooga, Tennessee. S. "CleanAirAct" or "CAA" means the federal Clean Air Act, 42 U.S.C. §§740 1-7671q, and its implementing regulations. T. "Clean Water Act" or "CW A" means the Federal Water Pollution Control Act, 33 U.S.c. §§ ]251-1387, and its implementing regulations. U. "Cold Startup Period" occurs whenever there has been no fire in the boiler ofa Unit (no combustion ofany Fossil Fuel) for a period ofsix (6) hours or more, and means the time between the**beg~nning** ofthe combustion offuel in a Unit until 20 minutes after the SCR reaches the vendor's recommended design minimum temperature for injection ofa reducing agent, a period not to exceed four (4) hours.

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V. "ConsentDecree" or "Decree" shall mean thb Consent Decree. W. "Continuously Operate" or "Continuous Operation" meansthat when an SCR, FGD, Mobotec, or otherpollution control ortreatment device or process is used at a Unit, exceptduring a Malfunction, it shall be operated at all times such Unit is in operation, consistent with thetechnological limitations, manufacturers' specifications, and good engineering and maintenance practices for such equipmentand the Unit so as to minimize emissions tothe greatestextent practicable. X. "Dalton Facility" means the facility at 403 Holiday Ave., Dalton, Georgia. Y. "Date ofLodging" shall mean the date the Consent Decree is lodged in the United States District Court. Z. "Day" shall mean a calendar day. In computing any period oftime under this Consent Decree, where the last day would fall ona Saturday, Sunday, or a federal holiday, the period shall run until the close ofbusiness ofthe next business day. AA. "DNREC"means the Delaware Department ofNatural Resources and Environmental Control and any successor departments or agencies. BB. "Duct-injection" means a pollution control technology that employs injection ofselected sorbents into the flue gas to control S02 emissions. Cc. "Election Date" shall mean, for the ChattanoogaFacility, the fourth anniversary ofthe Entry Date. DO. "Emission Rate" means, in the case ofan instantaneous emission, the number ofpounds ofpollutant emitted per million BTU ofheat input (lbIMMBTU) measured in accordance with this Consent Decree; in the case ofmass emissions, Emission Rate means the total number oftons ofpollutant emitted over a defined period oftime, measured in accordance with this Consent Decree. EE. "Entry Date" or "Date ofEntry" shall mean the date this ConsentDecree is signed by a United States DistrictCourt Judge. FF. "Environmental Requirements" shall mean the following federal statutes and their implementingregulations: the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.c. §§ 11001 to 11050; the Clean WaterAct (CWA), 42 U.S.c. §§ 1251 to 1387; the Resource Conservation andRecovery Act (RCRA), 42 U.S.c. §§ 6901 to 6992k; the Clean Air Act (CAA), 42 U.S.C. §§ 740I to 7671q; the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.c. §§ 960I to 9675; the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.c. §§ 136 to 136y; the Safe Drinking Water Act (SDW A), 42 U.S.c. §§ 300fto 300j-26 and corresponding state and local laws and regulations and any penuits issued under these laws.

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GG. "EPA" shall mean the United States Environmental ProtectionAgency, and any successor departments or agencies ofthe United States. HH. "EPCRA"means the federal Emergency Planning and Community Rightto-Know Act,"42 U.S.C §§ 11001-11050, and its implementing regulations. II. "Flue Gas Desulfurization System,"or "FGD,"means a pollution control device that employs flue gas desulfurization technology for thereduction ofsulfur dioxide. JJ. "Fossil Fuel" shall have the same meaning as set forth in 40 C.F.R. § 60.41. KK. "INVISTA" means INVISTA S.il r.l. LL. "KinstonFacility" means the former INVISTA facilities located at4695 Highway 11 North, Kinston, North Carolina. MM. "LaPorte Facility" means the INVISTA facility located at 12455 Strang Road, LaPorte, Texas. NN. "lbIMMBTU" means one pound ofa pollutantper million British thermal units ofheat input. 

### 00. "Malfunction" shall mean, as that term is defined under40 CF.R. § 60.2, "any sudden, infrequent, and notreasonably preventable failureofairpollution control equipment, process equipment, or a process to operate in a normal orusual manner. Failuresthat are caused in part by poormaintenance or careless operations are n01: malfunctions." PP. "Martinsville Facility" means the INVISTA facility located at 1008 DuPont Road, Martinsville, Virginia. QQ. "Mobotec ROFA"means the pollution control device manufactured by Mobotec USA that employs rotating opposed fired airtechnology to reduceNOx emissions. RR. "Mobotec ROFA with Rotamix" means the pollution control device manufactured by Mobotec USA that employs rotating opposed fired air technology and rotary mixing ofchemicals to reduce NOxemissions. SS. "MW"means a megawatt orone million Watts. TT. "NAAQS"means national ambient air quality standards that are promulgated pursuant to Section 109 ofthe Clean Air Act, 42 U.S.C § 7409. UU. "NOx" means oxides ofnitrogen, measured in accordance withthe provisions ofthis ConsentDecree.

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VV. "NonattainmentNSR"or "NNSR"means the nonattainment area New Source Review program under PartD ofSubchapter I oftheCleanAir Act, 42 U.S.C. §§ 7501- 7515 as implemented in 40 C.F.R. Part 51 and the applicable State Implementation**Plan~.** 

# ww. "NSPS" means New Source Performance Standards within the meaning ofPartA ofSubchapter I, ofthe Clean Air Act, 42 U.S.c. § 7411,40 C.F.R. Part 60. XX. "Operating Day" means any calendar day onwhich a Unit fires Fossil Fuel. YY. "Orange Facility" shall means the INVISTA Hlcility located at 3055A FM 1006, Orange, Texas. ZZ. "Over-fire Air" means a pollution control device to reduce NOx formation in a Unit boiler by directing a portion ofthe air to becombusted through ports abovethe level of the cyclones in the furnace. AAA. "Ownership Interest" means all or part ofINVISTA's legal or equitable interest in any ofINVISTA'sAcquired Facilities. BBB. "Parties" shall mean the United States, the State ofDelaware Department ofNatural Resources and Environmental Control, the South Carolina DepartmentofHealth and Environmental Control, the Chattanooga-Hamilton CountyAir Pollution Control Boardand**n~VISTA.** CCc. "Permitting Authority" shall mean the following with respectto the following Acquired Facilities: Camden Facility

- the SCDHEC; Chattanooga Facility

- the CHCAPCB; and Seaford Facility

- State ofDelaware through the DNREC. DDD. "Plaintiffs" means the United States ofAmeri(:a, the State ofDelaware Department ofNatural Resources and Environmental Control, the South Carolina Department of Health and Environmental Control, and the Chattanooga-Hamilton CountyAir Pollution Control Board. EEE. "PPM" means parts per million. FFF. "Promoter Area" means the areawhere the catalyst for the ADNprocess is manufactured. GGG. "PSD" means Prevention ofSignificant Deterioration within the meaning ofPart C ofSubchapter I ofthe Clean Air Act, 42 U.S.c. §§ 7470

- 7492 and 40 C.F.R. Parts 51 and 52 and the applicable State Implementation Plans.



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RHH. "RCRA" means the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.c. §§ 6901-6992,Je, and its implementing regulations. 

### III. "SDW A" means the Public Health Service Act, as amended by the Safe Drinking Water Act, 42 U.S.C. §§ 300fto300j-26, and its implementing regulations. 

### 111. "SCDHEC" means the South Carolina Department ofHealth and Environmental Control and any successor departments oragencies. KKK. "Seaford Facility" means INVISTA's facility located at 25876 DuPont Road, Seaford, Delaware.' , LLL. "Selective Catalytic Reduction System" or "SCR" means a pollution control device that employs selective catalytic reduction technology for the reduction ofNO x emissions. MMM."Selective Non-Catal:)'tic Reduction System" or "SNCR" means a pollution control device for reducing NOx emissions through the use ofselective non-catalytic reduction technology. NNN. "Shutdown" means the cessation ofoperation ofequipment for any purpose. 

### 000. "SOz" means sulfur dioxide, measured in accordance withthe provisions ofthis ConsentDecree. PPP. "Startup" means the setting into operation ofthe equipment for any purpose. QQQ. "State ofDelaware" or "Delaware"means the State ofDelaware Department ofNatural Resources and Environmental Control. RRR. "Title V Permit" means the permitrequired ofINVISTA's major sources under Subchapter V ofthe Clean Air Act, 42 U.S.c. §§ 7661-7661e and the applicable State Implementation Plans. SSS. "Unit" shall mean a piece ofequipment or an emissions source that is subjectto a requirement within this ConsentDecree. TIT. "United States" shaH mean the United States ofAmerica, on behalfof EPA. UUU. "Vapor CombustionUnit" means equipment u:,ed for combustion or destruction oforganic vapors.

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VVV. "Vaporizer" means a combustion unit desigm:d for use in process industries and that produces process heat using recirculating fluids at low operatingpressure. WWW. "Victoria Facility" meansthe INVISTA facility located at 2695 Old BloomingtonRoad North, Victoria, Texas. XXX. "Waynesboro Facility" means the INVISTA facility located at400 DuPont Boulevard, Waynesboro, Virginia. IV. NONATT AINMENT NEW SOURCEREVIEW (NNSR) I 

### PREVENTIONOF SIGNIFICANTDETERIORA TION{PSD) REQUIREMENTS Summary: This Consent Decree requires NNSRlPSD Controls at four Acquired Facilities: the Camden Facility, the ChattanoogaFacility, the Seaford Facility and the Victoria Facility. The Camden Facility has four coal-fired steam generating boilers, designated as Boilers 1, 2, 3 and 4, and four vaporizers. Camden Boilers 3 and 4 and the Camden Vaporizers have pollution control and/or emission reduction requirements under this Decree as described in Paragraphs 10,26-27,34 and 37 below. The Chattanooga Facility has two natural gas-fired steam generating boilers (Boilers 1 and 2) capable offiring either natural gas or fuel oil, three coal-fired steam generating boilers (Boilers 3, 4, and 5), and six vaporizers. Chattanooga Boilers 3, 4, and 5 and the Chattanooga Vaporizers have pollution control and/or emission reduction requirements under this Decree as described in Paragraphs 7, 8, 11,26,28,35and 37 below. The Seaford Facility has seven vaporizers and four steam··generating boilers, three of these boilers are capable of operating by burning either**,~oal** 

### or fuel oil, which are designated as Boilers 1, 2, and 3, and one boiler is capable of operating by burning natural gas or fuel oil, designated as Boiler 4 (package boiler). Seaford Boilers 1, 2, and 3 and the Seaford Vaporizers have pollution control and/or emission reduction requirements under this Decree as described in Paragraphs 9, 12-16, 26, 29-33, 36, 37, and 38 below. The Victoria Facility has six boiler and industrial furnaces ("BIF boilers") that burn liquid and gaseous streams, which are designated as Boilers I, 2, 3, 4, 7, and 8. The Victoria Facility has one gas-fired co-generation unit designated as the Cogen Unit. Victoria Boilers 1, 2, 3, 4, 7, 8, the Cogen Unit, and any new boiler constructed at the Victoria Facility have pollution control and/or emission reduction requirements underthis Decree as described in Paragraphs 17-26 below. A. ELECTIONPROVISIONS AND INTERIMCONTROLS Chattanooga Facility Election Provision and Interim Controls 7. No later than four years after the Entry Date ("Election Date"), INVISTA shall

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 16 of 69

elect to either: (a) install and Continuously Operate by no later than eighteen (18) months after

. the Election Datethe NOx emission controls and S02emission controls for ChattanoogaBoilers

3,4, and 5 pursuantto Paragraphs 11 and 28; or (b) retire and permanently ceaseto operate ChattanoogaBoilers 3, 4, and 5 no laterthan four years afterthe Entry Date. lNVISTA shall inform the United States and the CHCAPCB ofits election in writing. 8. Beginning on the Entry Date, INVISTA shall reduce i':s emission rate for Chattanooga Boilers 3, 4, and 5 to achieve a 12-Month Rolling Tonnage ofno greater than 292 tons NOx and 870 tons S02until it exercises its election under Paragraph 7. Seaford Facility Election Provision 9. By no later than the EntryDate, lNVISTA shall select one ofthe following emissions reduction options set forth below for the Seaford Facility, and shall notifY the United States and the State ofDelaware in writing as to which option lNVIST A has selected. After providing the United States and the State ofDelaware with written notice ofits selected approach, INVISTA shall implementthe selected approach in compliance with the schedule set forth in this Consent Decree.

a. Seaford Option A - INVIST A shall install and Continuously Operate pollution control technology on Boilers 1and 3, and shall implement operational and fuel limitations on Boiler 2, in compliance with Paragraphs 12, 14-16, 29-32 ofthis Consent Decree. The 12-Month Rolling Tonnage from Seaford Boilers 1and 

### 3 underthis Option shall not exceed 598tons ofNO x and 1446 tons ofS02. b. Seaford Option B -By no later than May 1,2009, INVISTA shall cease coal firing on Boilers 1and 3, shall discontinue use ofBoiler 2, shall install and Continuously Operate a natural gas-fired boiler with SCRtechnology, and shall operate Boilers I and/or 3 on fuel oil only in compliance with Paragraphs 13 and 33 ofthis ConsemDecree. The 12-Month RollingTonnage from the natural gas-fired boiler under this Option, while burning natural gas only, shall not exceed 

### 12 tons NOx and 

### I ton S02. The 12-Month Rolling Tonnage from Boilers 1and 3 (while burning either #6 residual oil containing no more than I% sulfur on an annual average basis or#2 distillate oil), andthe new natural gas fired boiler (while burning #2 distillate oil), shall not exceed 118 tons NOx and 353 tons S02- lNVISTA shaH operate the SCR technology according tothe vendor recommendations regardless offuel type burned. B. 

### NOx 

### EMISSIONS CONTROLS AND LIMITS Camden FacilityNO" Emission Controls 10. ByDecember 31,2011, INVISTA shall convert Camden Boiler 3 to a natural gasfired boiler. lNVISTA shall install and Continuously Operate SCR control technology on Camden Boiler 3. lNVISTA shall install and Continuously Operate Mobotec ROFA with Rotamix designed to achieve a removal efliciency for NOx ofat least .sixty-five percent (65%) on Camden Boiler4. The 30-Day Rolling Tonnage ofcombined NOx emissions from Camden Boilers 3 and 4 shall not exceed 23 tons; and the 12-Month Rolling Tonnage ofcombined NO"

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 17 of 69

emissions from Boilers 3 and 4 shall not exceed 202 tons. ChattanoogaFacility**NO~** Emission Controls II. Pursuantto Paragraph 7, ifINVISTA elects to install and Continuously Operate emission controls on Chattanooga Boilers 3, 4, and 5, then eighteen months after that election, INVISTA shall comply with the requirements ofeither option (a) or (b) as outlined below in this Paragraph.

a. .INVIST A shall install and commence Continuous Operation ofMobotec ROFA and/orOver-fire Airdesigned toachieve a removal efficiency for NOx ofat least fifty percent (50%) on ChattanoogaBoilers 3, 4, and 5. The 30-Day Rolling Tonnage from Chattanooga Boilers 3-5 combined underthis Subparagraph shall notexceed 23 tons NOx; and the 12-Month Rolling Tonnage shall not exceed 194 tons NOx. b. INVIST A shall convert one or more ofBoilers 3, 4, and 5 to burn exclusively natural gas. INVISTA shall install and Continuously Operate ultra 10w-NOx burner technology oran SCR on each Boiler converted to natural gas firing. Foreach Boiler 3, 4, or 5 that is not converted to natural gas firing, INVISTA shall install and commence Continuous Operation ofMobotec ROFA and/or Over-fire Air designed to achieve a removal efficiency for NOx ofat least fifty percent (50%), and shall limitNOx emissions to a 30-Day Rolling Average Emissions Rate ofno greaterthan 0.3 IblMMBTU for each Boilerthat has Mobotec ROFA installed. The 30-Day Rolling Tonnage ofNOx emissions from ChattanoogaBoilers 3-5 combined under this Subparagraph shall not exceed 20 tons; and the 12-Month Rolling Tonnage ofNOxemission shall not exceed 160 tons NOx. Seaford Facility**NO~** Emission Controls DEFINITIONS: Forpurposes ofParagraphs 12-16 only, the terms "Startup" and "Shutdown" shall have the following meanings:

a. "Startup" means the one-hour period immediately following the beginning ofcombustion offuel in a Unit, except during a Cold Startup Period. b. "Shutdown" means the period ofno more than one hour that immediately precedes the cessation offuel combustion in a Unit. 12. IfINVISTA elects Seaford Option A, then by no laterthan May 1,2009, INVISTA shall install and Continuously Operate Mobotec ROFA with Rotamix that is designed to achieve a removal efficiency for NOx ofat least sixty-five percent (65%) on Seaford Boilers 1 and 3. The 12-Month Rolling Tonnage ofNOxemissions under this option shall not exceed 272 tons for Boiler 1and 326 tons for Boiler 3. The 24-Hour Rolling Average Emissions Rate for each Boiler shall be determined in compliance with the Optimization ofNOxControls under Paragraph 14-16 ofthis Consent Decree. 13. IfINVISTA elects Seaford Option B, then by no laterthan May 1,2009, INVISTA shall install and Continuously Operate a natural gas fired boiler with SCRthat

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 18 of 69

achieves 5 ppmvd NOxcorrected to 3% Oxygen on a 3-hourrolling average basis while burning natural gas only, to be calculated as follows:

a. The 3-hour rolling average basis shall be expressed as the average concentration ofNO x in parts per million by dry volume ("ppmvd"), corrected to 3%O2, as averaged over three (3) hours (which may be nonconsecutive, partial hours) during which the boiler operates on natural gas only. In determining the 3-hour rolling average basis, INVISTA shall use CEMS in accordance with the applicable reference methods specified in 40 C.F.R. § 60.13(h) to calculate the emissions for each I5-minute interval within each clockhour, except during a Cold Startup Period or as otherwise provided in this Paragraph; b. Compliancewith the 3-hourrolling average basis shall be demonstrated by averaging all valid CEMS data points for the 3-hour interval readings while burning natural gas only, except during a Cold Startup Period. A minimum oftwo (2) I5-minute CEMS interval reading per clock hour is required to determine compliance with the 3-hourrolling average basis. All emissions recorded by CEMS shall be reported in 3-hour averages;

c. NOx emissions above 5 ppmvd during periods ofMalfunction ofthe natural gas-fired boiler or during Malfunction ofthe SCR will not be used in determining compliance with the 3-hour rolling average basis established pursuantto this Paragraph. For any eventto be considered a Malfunction, INVISTA must satisty each ofthe following: i. The Seaford facility was atthe time ofthe event being operated in a prudent and professional manner and in compliance with generally accepted industry operations and maintenance procedures; ii. The 3-hour average NOx emissions above the 5 ppmvd basis did not occur as a result ofimproperly designed equipment; lack of preventative maintenance; careless or improper operation; or the tampering with, interfering with, altering oradjusting any equipment in any way that conceals or disguises the type and quantity ofemissions; iii. During the period ofthe event INVISTA takes all reasonable steps to minimize levels ofNO x emissions from the gas-fired boiler and takes all reasonable measures to minimize the duration ofsuch event and to prevent the recurrence ofsuch event in the future;

IV. The operating conditions causing the event are recorded in the Seaford Facility's operating log within 24 hours oftheevent, and

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 19 of 69

in the CEMS by 5 p.m. the next business day following the event. Thenotations in the log and CEMS must describe the data, list the time ofentry into the log, and describe the plant operating conditions responsible for the event;

v. The 3-houraverage NOx concentration does not exceed 30 ppmvd, when calculated underthis Paragraph:, vi. INVIST A provides written notice ofthe Malfunction claim to DNREC within two (2) business days ofthe Malfunction period containing: a description ofthe event, any steps taken to mitigate emissions, and any corrective actions taken; and vii. Within thirty (30) calendar days ofthe event, INVISTA files a report with DNREC and EPA that sets forth the information that demonstrates the applicability ofSubparagraphs 13.d 13.c.vi to the Malfunction event. This report shall also contain: (1) the cause of, and INVISTA's response to, the Malfunction; (2) whether INVISTA has taken all reasonable and prudent steps to abide by the emissions limit conditions; (3) whe:ther INVISTA has taken all reasonable and prudent steps to minimizethe emissions associated with the Seaford Facility; (4) the degree to which INVISTA has reduced throughput to the boiler and the basis for such degree of reduction; (5) the estimated emissions associated with a complete Shutdown ofthe boiler; (6)whetherThVISTA had reviewed all prior similar causes ofMalfunctions and had taken all reasonable and prudent actions necessary to avoid future similaroutages; and (7) the actual emissions during the period ofMalfunction; d. Commencing sixty (60) days from the instal/arion ofthe natural gas-fired boiler, Subparagraph 13.c may apply to no more than ten (l0) 3-hour averages ofNOxper calendar year, and it is I}\rYISTA's burden to demonstrate to DNREC and EPA that it has met the conditions of Subparagraphs 13.c.i-vi. All NOxemissions during these 3-hour periods covered by Subparagraph 13.c shall be included when calculatingthe 12- Month Rolling Tonnage ofNOxemissions for the natural gas-fired boiler; and

e. Nothing in this Paragraph shall be construed tc reiieve INVISTA ofany obligation under any applicable law, regulation, orpermitto report emissions during periods ofMalfunction, orto document the occurrence and/or cause ofa Malfunction event.



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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 20 of 69

Optimization ofNO x Controls Under Option A: 14. INVISTA's operation ofthe NOx controls for Seaford Boilers I and 3 for an initial period of 180 days at the Seaford Facility shall constitute the "Optimization Period" for this technology, and shall commence upon completion ofconstruction and operation ofthe NOx controls for each Boiler. During each Boiler's Optimization Period,INVISTA shall commence a period ofcombustiontuning to optimize performance ofthe controls. This will include an evaluation oftheeffect ofoperating parameters on NOx emissions, the monitoring ofNO x emissions and the other relevant operating parameters to identify optimum operating parameters that minimize NOx emissions. Thereafter, INVISTA shall operate the NOx controls at the Units in accordance with those parameters to minimize NOx emissions to the greatest extent possible. Il'l'VISTA shall meet the performance test requirements set forth in Section 

### XII, Paragraph 98 of this Consent Decree during each 180 day Optimization Period. 15. Initial Emissions Reports: No later than 90 days after [he completion ofeach Optimization Period pursuant to Paragraph 14, INVIST A shall submit Initial Emissions Reports to EPA and DNREC. Each report shall include a summary ofthe 24-HourRolling Average Emission Rate for each respective Boiler, emission monitoring data during the Optimization Period including relevant CEMS data, and the operating parameter limits that INVISTA proposes to monitor for compliance demonstration. Each report shall also include INVISTA's proposed 24-Hour Rolling Average Emissions Rate (lbIMMBTU) for each Boiler, which shall be set at a level at least as stringent as the designed to achieve removal efficiency for NOx specified in Paragraph 12 above. 16. Proposed and Final Emission Limits: DNREC shall set the final 24-Hour Rolling Average Emission Rate (lbIMMBTU) for each Boiler and operating parameters based on INVISTA's Initial Emissions Reports under Paragraph 15, process variability, a reasonable certainty ofcompliance and any other information pertinent to the specific emission unit. INVISTA shall comply with the proposed emission limit for eachrespective Boiler immediately following submission ofthe Initial Report for that Boiler, and shall comply with the final limit no laterthan sixty (60) days following INVISTA's receipt ofnotice from DNREC regarding the final emission limit or upon issuance ofan operating permit from DNREC, whichever is earlier. Victoria NOli Emission Controls Boiler Controls 17. By no later than December 31, 2011, INVISTA shall route all Low Boiler Waste streams at the Victoria Facility to Boilers 7 and 8 only and INVISTA shall install and commence Continuous Operation ofSNCRtechnology, in compliance with**Para:~raph** 21, on one ofBoilers 7 or 8 by no later than December 31, 2011, and on the otherby no laterthan December 31, 2012. 18. Victoria SCR Feasibility Pilot Study. INVISTA shaIl:;omplete a pilot study (the "Victoria SCR Feasibility Pilot Study" or "Study") using an in situ pilot-scale SCR slipstream reactor designed to achieve a NOx removal efficiency ofat least ninety percent (90%) and that shall be designed to simulate thetreatment ofexhaust gases generated during normal

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 21 of 69

representative operating loads (including Startup and Shutdown). The pilot-scale SCR slipstream reactor will utilize a medium temperature range, honeycomb catalyst SCRsystem and will includeregular soot blowing and a sacrificial catalyst layer inside the SCR vessel. The Studywill be conducted on one or, at INVISTA's election, more ofBoilers 1-4 at the Victoria Facility, which BoiJer(s) are to be selected by INVISTA.

a. The Study shall be comprised ofa "Combined Waste Phase" with a potential second "Gas Waste Phase," ifapplicable. The first phase will be the "Combined Waste Phase" and will evaluatethe application ofSCRtechnology on a boiler firing combined liquid and gas wastes atthe Victoria Facility. The first phase ofthe Study shall be complete by no later than December 31,2011. A second phase, ifapplicable, will be the "Gas Waste Phase" and shall evaluate the application ofSCRtechnology on a boilerfiring only gas atthe Victoria Facility. The second phase ofthe Study, ifapplicable, shall be complete by no laterthan December 31, 2012. Except as set forth in Subparagraph IS.h.ii(a) regarding the optional Gas Waste Phase of the Study, data collection during each phase shall be conducted for at least six months. The Study shall take into account catalyst erosion and poisoning, with catalystmeasurements taken regularly. Except as provided in Subparagraph IS.d, normal vendor recommended best operating practices to maximize catalyst life for an SCR system sha.l be included in the Study. b. The Victoria SCRFeasibilityPilot Study shall not be conducted on a boiler while combusting either Low Boiler Waste orthe Cl2 WFE stream.

c. INVISTA shall submit its plan for each phase ofthe Study, as applicable, to EPA for approval no less than 60 days priorto commencement ofeach phase ofthe Study. Within 50days ofreceipt oftheplan for the Study, EPA shall notify INVISTA ofwhether it approves ordisapproves the plan. Approval ofthe plan shall not be unreasonably withheld. d. During the Victoria SCRFeasibility Pilot Study, INVISTA shall use all reasonable efforts to operate the boilerand the pilot SCR in a manner that is representative of current and historic operating conditions (including Startup and Shutdown) and maximizing NOx removal efficiency; provided, however, that INVISTA shall not be required to operate the boiler or SCR in a mannerthat creates a safety risk or impairs boiler operation unless reasonable efforts can be taken to compensate for such impairment. For purposes ofthls Paragraph, "reasonable efforts" do not include the installation and operation ofpretreatment technologies, including, but not limited to, a baghouse control system, electrostatic precipitator, scrubber(s), or a sacrificial guard bed or vessel.

e. INVIST A shall provide updates oftestresults to EPA every othermonth via electronic mail and shall provide any other information relevantt'J the Study that EPA determines it needs upon request. f. Ifat the completion ofthe Combined Waste Phase ofthe Victoria SCR Feasibility Pilot Study, INVISTA believes that SCR will not be feasible, as defined by Subparagraph IS.i, to treat combined liquid/gas wastes atthe VictoriaFacility Boilers, INVISTA may optto commence the Gas Waste Phase ofthe Pilot Study, as set forth in Subparagraph IS.hoii, in advance ofsubmitting its report for the Combined Waste Phase ofthe Study pursuant

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 22 of 69

to Subparagraph 18.g below. g. Within ninety (90) days after completion ofeach phase ofthe Victoria SCRFeasibility Pilot Study, as applicable, INVISTA shall submit a written report to EPA summarizing the results ofthe Study. This report shall include the catalyst measurements, emission monitoring data, and operating data compiled on a daily ordaily average basis. h. Based on the results ofthe Combined Waste Phase ofthe Victoria SCR Feasibility Study, INVISTA shall include in its report for that phase a recommendation as to whether the installation and operation ofSCRtechnology to treatcombined liquid/gas wastes on the Victoria Boilers is feasible, as defined by Subparagraph 18.i. 

### i. In the event INVISTA asserts that SCR is feasible, as defined in Subparagraph 18,i, and EPA agrees pursuantto Subparagraph 18J, INVISTA shall propose for EPA appr:wal a schedule to install and Continuously Operate SCR technology designed to achieve a NOx removal efficiency ofat least ninety p,;:rcent (90%) on one of Boilers 1-4 by December 31, 2013, and on each ofthe remaining three Boilers by no laterthan Decemb;:r 31, 2016;

11. IfINVISTA asserts in its report that SCR is not feasible, as defined in Subparagraph 18.i, to treat combined liquid/gas wastes at the Victoria Boilers, INVISTA may opt to conduct a Gas Waste Phase ofthe Victoria SCR Feasibility Pilot Study. (a) The Gas Waste Phase shall evaluate the application ofSCR technology on a gas-only waste boiler at the VictoriaFacility, and shall be conducted in accordance with the requirements ofthis Paragraph 18, with the exception that INVIST A may propose a Study oflessthan six months ifEPA agrees that there will be sufficient data for it to properly evaluate the feasibility ofSCR pursuant to Subparagraphs 18.i and l8.j; (b) IfINVIST A elects not to conductthe Gas Waste Phase of the Study or, ifin the report submitted pursuant to Subparagraph 18.g for the Gas Waste Phase ofthe Study INVISTA asserts that SCR on a gas-only waste boiler is feasible, as defined in Subparagraph 18.i, and EPA agrees pursuantto Subparagraph 18.j, INVISTA shall propose for EPA approval a schedule for the conversion ofone ofBoilers 1-4 to a gas-only waste boiler and the installation and Continuous Operation ofSCRtechnology designed to achieve a NOxremoval efficiency ofat least ninety percent (90%) onthe gas-fired boiler by December 31, 2013, and SNCR on the remaining boilers by no laterthan December 31, 2016; (c) If, in the report submitted pursuant to Subparagraph 18.g

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 23 of 69

for the Gas Waste Phase ofthe Study, INVISTA asserts that SCR is not feasible, as defined by Subparagraph 18.i, and EPA agrees pursuant to Subparagraph 18.j, then**n~VIST**A shall propose for EPA approval a schedule for the installation and Continuous Operation ofSNCRtechnology on one ofBoilers 1-4 by December 31, 2013, andon the remaining Boilers by December 31, 2016; iii. Further, ifINVIST A asserts that SCR is not feasible, as defined in Subparagraph 18.i, to treat combined Iiquid/gas wastes at the Victoria Boilers, and EPA agrees pursuant to Subparagraph 18,j, INVIST A may, at any time after December 31,2012, re-route the Low BoilerWaste streams from Boiler(s) 7 and/or 8 to any Boiler(s) 1-4 equipped with SNCRtechnology. When combusting Low Boiler Waste in any boiler after December 31,2012, INVISTA shall, to the greatest extent :Jracticable, operate the boiler in accordance with optimum operatingparameters for minimizing NOx emissions that were identified during the Optimization Period for Boilers

### 7 andior 8 under Subparagraph 21.a. 

### i. "Feasibility" Determination. For purposes ofthis Paragraph, the feasibility ofSCRshall be determined based only on the following criteria: i. Ifthe data collected during the Study indicate that the catalyst in a full-scale SCR for the relevant liquid/gas or, as applicable, gasonly boiler would need to be replaced at a rate ofmore than once per 12-month period in orderto maintain a NOxremoval efficiency greater than that ofSNCR, then SCR

### i;; considered infeasible for the purpose ofthis Paragraph 18; ii. Ifthe data collected during the Study indicate that a full-scale SCR for the relevant liquid/gas or, as applicable, gas-only boiler would require space velocity ofless than 7,000 h{l, then SCR is considered infeasible for the purpose ofthis Paragraph 18; or iii. Ifthe data collected during the Study indicate that the amount of catalyst required in a full-scale SCR for the relevant liquid/gas or, as applicable, gas-only boiler would create a back pressure that exceeds the current structural/mechanical limitations ofthe boiler, then SCR is considered infeasible for the purpose ofthis Paragraph 18. j. SCRFeasibility Determination and Installation Schedule.

1. Within 120 days ofreceipt ofeach report and schedule submitted by INVISTA pursuant to Subparagraph 18.g or Subparagraph I8.h,

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 24 of 69

ifapplicable; EPA will review and ei.ther approve orconditionally approve INVISTA's selected technology and proposed implementation schedule orwill**spe(~ify** another NOx control technology (limited to SCR in lieu ofan INVIST A-proposed SNCRor SNCR in lieu ofan INVISTA-proposed SCR) or schedule to be implemented by INVISTA under Subparagraph 18.h; ii. EPA will not specify the installation ofSCR ifEPA determines that anyone ofthe criteria listed in Sllbparagraph 18.i demonstrates that SCR is infeasible under Paragraph 18; iii. IfEPA conditionally approves INVISTA's proposedtechnology or implementation schedule or ifEPAnjects INVISTA'stechnology or implementation schedule and specifies that SCRbe implemented in lieu ofSNCR (or vict! versa) or that the technology be implemented according to a different schedule, then within sixty (60) days ofits receipt ofEPA's detelmination, INVISTA shall either submit a revised schedule for implementing the EPAspecified SCR or SNCRtechnology, submit a revised proposal that responds to EPA's conditional approval, or invoke the Dispute Resolution provisions ofSection XV. 

### k. IfSCR is selected as the NOx control technology, INVISTA shall comply with the optimization protocol set forth for SCR in Paragraph 19, below. IfSNCR is selected as the NOxcontrol technology, INVISTA shall comply with the optimization protocol set forth for SNCR in Paragraph 21, below, and shall Continuously Operate the SNCRusing best efforts to maximize NOx emissionsreductions across all ofthe Victoria Boilers. L INVISTA shall comply with the implementation schedule approved by EPA pursuantto this Paragraph 18. 19. Optimization orSCR Controls.

a. Immediately after installation ofthe SCRtechnology under Paragraph 18, as applicable, INVIST A shall begin a 16-month period ofoptimizing the performance ofeach SCR (the "SCR Optimization Period") in a manner that optimizes the Unit consistent with design requirements and the ammonia feedrate so as to achieve the optimal design efficiency of the SCRtechnology. The SCR Optimization Period will include an t:valuation ofthe effect of operating parameters on NOx emissions, the monitoring ofNOxemissions and the otherrelevant operating parameters to identify optimum operating parameters that minimize NOx emissions. Afterthe SCR Optimization Period, INVISTA shaH operate the SCR for that boiler in accordance with the parameters that minimize NOxemissions to the greatest extent possible based onthe evaluation conducted under this Subparagraph 19.a. b. Initial SCREmissions Report: Byno later than ninety (90) days after

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 25 of 69

completion ofeach SCR Optimization Period, INVISTA shall submit an emissions report to EPA. This report shall include a summary ofNO x emission monitoring data during the SCR Optimization Period for the boiler, including relevant CEMS data, operating data on a daily or daily average basis, and the operating parameter limits that INVIST A proposes to monitor for compliance demonstration. This report shall also include INVISTA's proposed NOx emission limit for the Unit(s).

c. Proposed and Final Emission Limits: EPA shall set the final NOx emission limit and operating parameters based on INVISTA's Initial SCREmissions Report under Subparagraph 19.b, process variability, a reasonable certainty ofcompliance, and any other information pertinentto the specific emission Unit. INVISTA 3hall comply

### with the proposed NOx emission limit immediately following submission ofthe Initial SCR Emissions Report, and shall comply with the final NOx limit no later than thirty (30) days following INVISTA's receipt ofnotice from EPA regarding the final NOx emission limit orupon issuance ofan operating permit from the Permitting Authority, whichever is earlier. 20. Except, as set forth below, if, based on operations dur:ng the SCR Optimization Period, INVIST A asserts and EPA agrees that the catalyst in the SCRtechnology at any boiler needs to be replaced at a rate ofonce every six (6) to twelve (12) months in orderto maintain a NOx removal efficiency greaterthan that ofSNCR, INVISTA may, after written approval from EPA, which shall not be unreasonably withheld, electto cease to operatethe SCRtechnology and, upon Shutdown ofthe SCRtechnology, commence Continuous Operation ofSNCR technology. If, based onoperations during the SCR Optimization Period, INVISTA asserts and EPA agrees thatthe catalyst needs to be replaced at a rate greater than once every six (6) months in order to maintain a NOx removal efficiency greater thanthat ofSNCR, INVISTA may, after written approval from EPA, which shall not be unreasonably withheld, elect to ceaseto operate the SCRtechnology and, within five months ofShutdown ofthe SCRtechnology, shall commenceContinuous Operation ofSNCRtechnology. INVISTA shall submit its analysis and supporting documentation to EPA. The emissions limit for such an SNCR will be determined by the procedure outlined in Paragraph 21. 21. Optimization ofSNCRControls.

a. Immediately after the installation ofSNCR on each boiler pursuantto Paragraph 17 and Paragraphs 18 or 20, ifapplicable, INVISTA shall begin a I80-day period of optimizing the performance ofthe SNCR for that boiler (the "SNCR Optimization Period"). This will include an evaluation ofthe effect ofoperating parameters on NOx emissions and the monitoring ofNO x emissions and the other relevant operating parameters to identifY optimum operating parameters that minimize NOx emissions. Thereafter, INVrSTA shall operate the SNCRat the boilers in accordance with those parametersto minimize NOx emissions to the greatest extentpossible based on the evaluation conducted under this Subparagraph 21.a. b. Initial SNCR Emissions Report: No laterthan ninety (90) days after the completion ofthe last SNCROptimization Period pursuant to Subparagraph 21.a, INVISTA shall submit an emissions report to EPA. This report shall include a summary ofNO x emission monitoring data for each Boiler's SNCR Optimization Period including relevant CEMS data, operating data on a daily or daily average basis, and theoperating parameter limits that

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 26 of 69

INVISTA proposes to monitor for compliance demonstration. This report shall also include INVISTA's proposed NOx emission limits for the boilers and, ifINVISTA elects to install a Thermal OxidizerunderParagraph 23, for the Thermal Oxidizerthatcontrols the C12 WFE.

c. Proposed and Final Emission Limits: EPA will set the final NOx emission limits and operating parameters for each boiler (and the C12 WFE Thermal Oxidizer, as applicable) based onINVISTA's Initial SNCR Emissions Report under Subparagraph 21.b, process variability, a reasonable certainty ofcompliance, and any other information pertinentto the specific emission Unit. INVISTA shall comply with the proposed NOx emission limits submitted under Subparagraph 21.b immediately following submiss.on ofthe Initial SNCR Emissions Report, and shall comply withthe final NOx emissions limits no laterthan thirty (30) days following INVISTA's receipt ofnotice from EPA regarding the final NOx emission limit or upon issuance ofan operating permit from the PermittingAuthority, whichever is earlier. 

### Cogen Unit and WFE Controls 22. By no later than December 31, 2011, INVISTA shall install and commence Continuous Operation ofSCR atthe Victoria Cogen Unit designed to achieve a NOx reduction efficiency ofat least ninety percent (90%) and emissions shall not exceed 10 ppmvd NOx based on a 30-day rolling average or a 12-Month Rolling Tonnage of85 tons NOx• 23. By no laterthan December 31, 2013, INVIST A shall elect one ofthe following control options for the Cl2 WFE waste stream and shall notifY the United States in writing as to which option INV1ST A has selected:

a. Option A: By no later than December 31, 2015, INVISTA shall route the C12 WFE waste stream to a location offsite from the Victoria Facility; b. Option B: By no later than December 31, 2015, INVISTA shall route the Cl2 WFE waste stream to a Thermal Oxidizerthat is in compliancewith all applicable federal and state permitting requirements;

c. Option C: By no laterthan December 31, 201S, INVISTA shall route the Cl2 WFE waste stream to a boilerequipped with SNCRcontrol technology. 24. IfINVISTA elects Option C and, during the SNCROptimization Period or at any time thereafter for the boilerto which the CI2 WFE stream is routed, INVISTA determines that combustion ofthe Cl2 WFE stream is causing orwill likely cause the boiler to operate in excess ofthe emissions limits applicable to the boiler, INVISTA may, after written notice to EPA, elect to implement Option A orOption B under Paragraph 23. 25. IfINVISTA elects to install a Thermal Oxidizer pursuant to Subparagraph 23.b (OptionB), INVISTA shall include the emissions from the Thermal Oxidizer in its emissions report and proposed emission limits required under Subparagraph 21.b. Immediately upon installation ofthe Thermal Oxidizer, INVISTA shall operate the Thermal Oxidizer in a manner that minimizes NOx emissions. A Thermal Oxidizer installed pursuantto this Paragraph shall be subject to the emissions limitations established under Subparagraph 2l.c, above.

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 27 of 69

General NO)!. Provision 26. All Units, except the Vaporizers, that have NOx emissions limits under this Consent Decree shall be equipped with CEMS to measureNOxemissions no laterthan the date the Unit has such requirements under this ConsentDecree, with th(: exception that Units at Chattanooga shall be equipped with CEMS byno laterthan June 30, 2010. C. S02 EMISSIONREDUCTIONS AND CONTROLS Camden S02 Emission Controls 27. By December 31, 2011, INVISTA shall convert and Continuously Operate Camden Boiler 3 as a natural gas-fired boiler. The 12-Month Rolling Tonnage for S02 emissions from Camden Boiler 3 underthis option shall not exceed I ton. Chattanooga S02Emission Controls 28. Pursuant to Paragraph 7 above, ifINVISTA elects to install and Continuously Operate emission controls on Chattanooga Boilers 3, 4, and 5, then eighteen months afterthe Election Date, INVISTA shall comply with the requirements ofeither option (a) or (b) as outlined below in this Paragraph:

a. INVISTA shall install and commence Continuous Operation ofductinjection technology on ChattanoogaBoilers 4 and 5 designed to achieve a removal efficiency for S02ofat least fifty percent (50%) combined with othercontrol measures as may be necessary to meet the emissions requirements under this Subparagraph. The 30··Day Rolling Tonnage of S02emissions from Chattanooga Boilers 3, 4, and 5combined underthis Subparagraph shall not exceed 60 tons; and the 12-Month Rolling Tonnage shall not exceed 530 tons S02. INVISTA shall operate the duct-injection technology installed underthis Subparagraph in 

### amanner that optimizes the technology consistent with design requirements to achieve the optimal design removal efficiency as identified in this Subparagraph; b. INVISTA shall convert one orboth Boilers 4 and 5 to bum exclusively natural gas. For the Boiler4 or5that is not converted to natural gas tiring, INVISTA shall install and commence Continuous Operation ofduct injection technology designed to achieve a removal efficiency for S02ofat least fifty percent (50%) combined with othercontrol measures that may be necessary to meetthe emissions requirements under this Subparagraph. The 30-Day Rolling Tonnage ofS02emissions from Chattanooga Boilers 3-5 combinedunder this Subparagraph shall not exceed45 tons; and the 12-Month Rolling Tonnage shall not exceed 445 tons S02. INVISTA shall operate the duct-injection technology installed under this Subparagraph in a manner that optimizes the technology consistent with design requirements to achieve the optimal design removal efficiency as identified in this Subparagraph. Seaford S02 Emission Controls DEFINITIONS: For purposes ofParagraphs 29-33 only, the terms "S,tartup" and "Shutdown"

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 28 of 69

shall have the following meanings:

a. "Startup" means the one-hourperiod immediately following the beginning ofcombustion offuel in a Umt, exceptduring a Cold Startup Period. b. "Shutdown" means the period ofno more than one hour that immediately precedes the cessation offuel combustion in a Unit. 29. IfINVISTAelects Seaford Option A as described in Paragraph 9, then by January 1,2010, INVISTA shall install and Continuously Operate a dry Flue Gas Desulfurization (FGD) System on Seaford Boiler 1designed to achieve a 24-Hour Rolling Average Removal Efficiency for S02ofat least ninety percent (90%), except during Startup and Shutdown. The 12-Month Rolling Tonnage for S02 emissions shall not exceed 311 tons. 30. IfINVISTA elects Seaford Option A as described in Paragraph 9, then by January 1,2010,INVISTA shall install and Continuously Operate duct-injection technology on Seaford Boiler 3 designed to achieve a 24-Hour Rolling Average Removal Efficiency for S02of at least fifty percent (50%), except during Startup and Shutdown. The 12-Month Rolling Tonnage ofS02 emissions shall not exceed 1135 tons. Seaford Facility Fuel and Operating Limitations 31. IfINVISTA elects Seaford Option A as described in Paragraph 9, then by no later than May 1,2009, INVISTA shall only burn either #6 residual oil or #2 distillate fuel oil in Seaford Boiler 2. IfINVISTA burns#6 residual oil in Boiler 2, that residual oil shall contain no greater than I% sulfurbased on a 12-month rolling average. 32. IfINVISTA elects Seaford Option A as described in Paragraph 9, then by no later than May 1,2009, INVISTA shall only use Seaford Boiler 2 as 

### abackup Boiler during Start-up, Shutdown, Malfunction, or maintenance ofBoilers 1or 3 which necessitates additional heat output from Boiler 2 to maintain normal operations. 33. IfINVISTAelects Seaford Option B, as described in Paragraph 9, then by no later than May 1,2009, INVISTA shall be authorizedto burn either #6 residual oil (with a sulfur content ofno greaterthan 1 % based on a 12-month rolling average) or#2 distillate oil only in Boilers I and 3, and only #2 distillate oil in the new natural gas-fired boiler for a combined period oftime not to exceed 2,880 hours based on a 12-month rolling summation oftotal hours and subject further to the 12-Month Rolling Tonnages set forth in Subparagraph 9.b, above. Notwithstanding the foregoing, in the event INVISTA is unable to install and operate Option B by May 1, 2009, due to delay in construction and/or permitting, INVrSTA shall be authorized to burn either#6 residual oil or#2 distillate oil only in any ofthe existing Boilers for a period not to exceed two (2) months after May I, 2009, without violation or penalty ofany term or condition ofthis ConsentDecree, including but not limited to the provision on "installation and operation" ofcontrols (Paragraphs 9 and 13, herein). The number ofhours ofoil burning during this 2-month period shall be deducted from INVISTA's initial allocation of2,880 hours during the first 12 months after May 1,2009. Compliance with the 12-month rolling summation of 2,880 hours ofoil-burning shall be determined by summing the number ofhours plus any

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increment ofan hour (increments less than one hour shall count as one hour) ofcontinuousoilburning, on a 12-monthrolling basis. Vaporizers 34. Camden Facility

- Beginning sixty (60) days after the Entry Date, the Vaporizers 1-4 at the Camden Facility shall burn no more than 75% fuel oil and no less than 25% natural gas, calculated as a 12-Month Rolling Heat Input Percentage calculated from the total heat input to the vaporizers by each fuel type. The fuel oil used in the Camden Vaporizers 1-4 shall not exceed a 1% sulfur contentbased on a 12-month rolling average. 35. ChattanoogaFacility

- Beginning onthe Entry Date, the Vaporizers 1-6 atthe Chattanooga Facility shall burn no less than 95%natural gas and no more than 5% fuel oil as a 12-Month Rolling Heat Input Percentage calculated from the total heat input to the vaporizers by each fuel type. The fuel used in the Chattanooga Vaporizers 1-6 shall not exceed a 0.3% sulfur contentbased on a 12-monthrolling average. 36. Seaford Facility

- Beginning on the Entry Date, the Vaporizers at the Seaford Facility shall burn#2 distillate or#6 residual fuel oil with a sulfur centent no greater than 

### 1 % sulfurbased on a 12-month rolling average. General S02Provisions 37. All Units, exceptthe Vaporizers, Units firing natural gas, and Seaford Units firing only fuel oil as described under Paragraph 33, that have S02 emissions limits under this Consent Decree shall be equipped with CEMS to measure S02emissions no laterthan the date the Unit has such requirements under this ConsentDecree, with the exception that Units at Chattanooga shall be equipped with CEMS by no later than June 30,2010. 

### D. PARTICULATE MATTEREMISSIONS LIMIT Seaford Facility PMLimit 38. IfINVISTA selects Option A as described in Paragraph 9, then by no later than May 1,2009, INVISTA shall: (a) comply with a final PM emission limit of0.015 IbslMMBtu at Boilers 1 and 3; and (b) Boilers 

### 1and 3 shall be equipped with CEMS to measure PMemissions. E.

. 

### PROHIBITION ON NETTING CREDITS OROFFSETS FROMREQUIRED CONTROLS 39. Emission reductions generated by INVISTA to comply with the requirements of this ConsentDecree shall not be considered as a creditable contemporaneous emission decrease for the purpose ofobtaining a netting credit under the Clean Air Act's Nonattainment NSR and PSD programs. 40. The limitations on the generation and use ofnetting credits or offsets set forth in

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the previous Paragraph 39 do not apply to emission reductions achieved by INVIST A Units that are greater than those required under this Consent Decree. For purposes ofthis Paragraph 40, emission reductions from an INVIST A Unit are greaterthan those required under this Consent Decree ifthey result from INVIST A compliance with federally enforceable emission limits that are more stringent than those limits imposed onUnits underthis Consent Decree and under applicable provisions oftheClean Air Act orthe applicable SIP. Nothing in this Consent Decree is intended to preclude the emission reductions generated under this Consent Decree from being considered by DNREC, SCDHEC, CHCAPCB, orEPA as creditable contemporaneous emission decreases for the purpose ofattainment demonstrations submitted pursuantto section 110 ofthe Act, 42 U.S.c. § 7410, or in determining impacts on NAAQS, PSD increment, or air quality related values, including visibility, in a Class I area. Exception to General Prohibition for Seaford Option B 41. Exceptionto the General Prohibition against the Use or Generation ofConsent Decree Emissions Reductions for Seaford Option B.

a. Notwithstandingthe general prohibition set forth in Paragraph 39, INVISTA may use 50 tons peryear ofNO x and 50 tons per year ofS02 from the emissions reductions required by Paragraphs 13 and 33 as credits oroffsets in any PSD, major nonattainment and/or minor NSRpermit or permit proceeding occurring after the Date of Lodging ofthe Consent Decree, provided that INVISTA remains in compliance with the requirements ofthis Consent Decree. Utilization ofthis exception is wbjectto the following conditions: i. This exception is only available in the event INVIST A chooses to implement Seaford Option B as set forth in Paragraph 9 above;

11. Under no circumstances shall INVISTA use emissions reductions required by this Consent Decree for netting and/or offsets prior to the time that actual emissions reductions have occurred; iii. This exception may be used only atthe Seaford Facility; iv. The emissions requirements ofthis Consent Decree are for purposes ofthis Consent Decree only and neither INVIST A, nor any other entity, may use emissions reductions required by this Consent Decree for any purpose, including in any subsequent permitting or enforcement proceeding, I!xcept as provided herein; and

v. INVISTA still shall be subject to all f;!deral and state regulations applicable to the PSD, major non-attainment and/or minor NSR permitting process.



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V. NSPS FLARINGDEVICES 42. INVISTA shall Continuously Operate an HCN startup flare at the Orange Facility that will co.mply with 40 C.F.R. 

### § 60.18 and 40 C.F.R. 

### § 63.11(a) by no laterthan December 31, 2010, ifthe final design ofthe flare calls for replacement ofthe flare tip orthe flare can be reconstructed in three weeks; or (b) by no later than December 31,2011, ifthe final design ofthe flare calls for reconstruction that cannot be completed in three weeks. Until the new flare design is constructed, INVISTA shall implement good air pollution control practicesto'minimize emissions from the flare. 

### VI. BENZENEWASTE NESHAP PROGRAMENHANCEMENTS 43. Summary: As ofthe Date ofEntry, INVISTA's Victoria Facility and Orange Facility have total annual benzene (TAB) amounts above 10 Mg. Upon the Date ofEntry, the Victoria and Orange Facilities shall utilize the exemptions set forth in40 C.F.R. 

### §§ 61.342(c)(2) and (c)(3)(ii) (hereinafter referredto as the "2 Mg Compliance Option") to comply with 40 C.F.R. 

### § 61.342{c). 44. INVISTA shall undertake the measures set forth in this Subsection VI to ensure continuing compliance with 40 C.F.R. Part 61, Subpart FF ("Benzene Waste NESHAP," "BWON," or Subpart FF) and to minimize or eliminate fugitive benzene emissions at the Victoria and Orange Facilities. By no later than December 31, 2010, INVISTA shall elect for each ofthe Victoria and Orange Facilities one ofthe following benzene emission reduction options, and shall notifY the United States in writing as to which optkm INVISTA has selected for each Facility. After providing the United States with written notL:;eofits election, INVISTA shall implementthe selected option in compliance with the schedule set forth in this Consent Decree. a. Option A - INVISTA shall install and fully im:Jlement a new ADN production technology that is expected to eliminate benzene from the ADN production process as follows: (i) for the first (oronly, as applicable) Facility for which this option is elected, by no later than December 31, 2013, and (ii) for the second, ifapplicable, Facility for which this option is elected, by no later than December 31, 2016. IfINVISTA elects to implement this new technology pursuant to this Option A at the Victoria and/or Orange F3cility(ies), the other requirements ofthis Section VI and their corresponding stipulated penalties provisions ofthis Consent Decree (Subparagraphs 89.i 89.t) shall not apply to the rel(:vant Facility(ies). Until the new technology referenced above is fully implemented underthis Option, INVISTA will continue to comply with the 2 Mg Compliance Option. b. Option B INVISTA shall continue to comply with the 2 Mg Compliance Option, and shall undertake the measures setforth in this Section VI to ensure continuing compliance with the Benzene Waste NESHAP, to further address the findings in Appendix C, and to minimize oreliminate fugitive benzene emissions atthe relevant Facility. prange Facility

- Actions to CorrectNon-Compliance 45. By no later than December 31, 2012, INVISTA shall Continuously Operate a

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 32 of 69

stripper at the Orange Facility to serve as a "benzene treatment proc.;:ss," for all regulated aqueous waste streams in the ADN Area in compliance with 40 C.F.R. § 61.348. 46. By no laterthan December 31, 2012, INVISTA shall install one or more vapor combustion device(s) that achieve(s) a 99% benzene destruction efficiency to control emissions from continuous process vents that are currently controlled by the ADN operating flare, excluding the HCN offgas, in the ADN Area and the Promoter Areaatthe Orange Facility with backup to the existing ADN operating flare or other vapor combustion device. INVISTA shall install at least one knock-out drum for all the common vent headers for the Vapor Combustion Units and operating flares within the ADN Area and Promoter Area at the Orange Facility. 47. By no laterthan December 31, 2012, INVISTA shall segregate the storm water streams from the process water waste streams in the ADN Area at the Orange Facility. INVISTA shall comply with the requirements of40 C.F.R. § 61.346 for all regulated components ofthe process wastewater drain system. Victoria Facility

- Actions to CorrectNon-Compliance 48. Within 180 days after Entry Date, INVISTA shall Continuously Operate the benzene flasher, Nitrile Stripper Column, orotherbenzene treatment process atthe Victoria Facility to serve as a "benzene treatment process," for all regulated aqueous waste streams in the ADN area in compliance with 40 C.F.R. § 61.348. The following technologies are acceptable underthis Paragraph: thermal oxidizer, hydrolysis column, and benzene stripper. INVISTA may install a benzene treatment process otherthan those specified in this Paragraph once INVISTA receives the United States' approval in writing prior to the time a contract for its purchase is executed. 49. By no laterthan December 31,2012, INVISTA shall install and Continuously Operate one or more vapor combustion device(s) that achieve(s) a 99%benzene destruction efficiency with backup to a flare to control emissions from all continuous process vents, excluding the HCNoffgas, from the 311 and ADNAreas at the Victoria Facility that are currently controlled by the ADN operating orthe 101 flares. INVISTA shall install at least one knock-out drum for all the common vent headers for the Vapor Combustion Units and operating flares within the ADN Area at the Victoria Facility. 50. By no laterthan December 31, 2012, INVISTA shall segregate all stormwater streams from the process water streams in the ADN area ofthe Victoria Facility. INVISTA shall comply with the requirements of40 C.F.R. § 61.346 for all regulated components ofthe process wastewater drain system. 51. Testing, Monitoring, and Reporting Requirements for New and Existing Installations. INVISTA shall comply with all applicable Subpart FF testing, monitoring, and reporting requirements set forth in Benzene Waste NESHAP regulations for any new installations orexisting installations improved pursuant to Paragraphs 45, 46, 48, and 49. INVISTA shall conduct a test ofeach such installation following entry ofthis Decree. INVISTA shall submit these test results to EPA demonstrating that each'installadon meets the applicable

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\ requirements ofSubpart FF. 52. Certification ofCompliance with the 2 Mg Complianee Option. Within ninety (90) days after Entry, INVISTA shall submit a reportto EPA certifYing that the Orange and Victoria facilities comply with the Benzene Waste NESHAP. Ifadditional actions are determined to be necessary to ensure compliance with the 2 Mg Compliance Option, INVISTA will include such actions in its written report. 53. Carbon Canisters. INVISTA shall continue to implementthe requirements ofthis Paragraph at all locations atthe Victoria and Orange Facilities when;: a carbon canister(s) is utilized as a control device under the Benzene Waste NESHAP.

a. Within ninety (90) days afterthe Entry Date, INVISTA shall insure that installation ofprimary and secondary carbon canisters has occurred at locations currently utilizing single canisters and shall operate them in series. For any permanent unit, within thirty (30) days following completion ofthe installation ofdual canisters, INVISTA shall submit a reportto EPA certifYing the completion ofthe installation. Thereport shall include: (i) a list of all locations at the Victoria and OrangeFacilities where carbon**cani~ter** systems are used as a control device under Subpart FF; (ii) an indication, for each location, whether there was a preexisting secondary carbon canister or whether a secondary carboncanister was installed under this Paragraph; (iii) the installation date ofeach such secondary canister installed under this Paragraph and the date thateach secondary canister was put into operation; and (iv) an indication, for each location, whether volatile organic compounds ("VOC") or benzene will be used to monitor for breakthrough under and as required by Subparagraph 53.d. b. Except as expressly permitted under Subparagraph 53.f, INVISTA shall not use single carbon canisters for any new units orinstallations atthe Victoria or Orange Facilities.

c. For dual carbon canister systems, "breakthrough" between the primary and secondary canister is defined as any reading equal to or greaterthan:; ppm benzene. d. INVISTA shall continue to monitor for breakthrough between the primary and secondary carbon canisters weekly, or in accordance with the frequency specified in 40 C.F.R. § 61.354(d), whichever is more frequent. This requirement shall commence: (i) upon the Entry Date where dual carbon canisters currently are in service; and (ii) no later than seven days after installation ofa new dual carbon canister system.

e. INVISTA shall continue to replace the original primary carbon canister (or route the flow to an appropriate alternative control device) immediatdy when breakthrough is detected between the primary and secondary canister. The original secondary carbon canister (or a fresh canister) will become the new primary carbon canister and a fresh carbon canister will become the secondary canister. For purposes ofthis Subparagraph, "immediately" shall mean within twenty-four (24) hours ofthe detection ofabreakthrough foreanisters greater than 55 gallons. In lieu ofreplacing the primary canister immediately, INVISTA may elect to monitor the outlet ofthe secondary canisterbeginning on the day the breakthrough between the primary

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and secondary canister is identified and each calendarday thereafter. This daily monitoring shall continue until the primary canister is replaced. Ifbenzene is detecled atthe outlet ofthe secondarycanisterduring this period ofdaily monitoring, both canisters mustbe replaced within eight (8) hours ofthe detection ofa breakthrough. f. Temporary Applications. Fora period not longerthan forty-five (45) days, INVISTA may utilize properly-sized single canisters for short-term operations such as with temporary storage tanks oras temporary control devices. Forcanisters 55 gallons or less operated as partofa single canister system, "breakthrough" is defined for purposes ofthis ConsentDecree as any reading ofVOC above background orbenzene above I ppm (whichever is monitored). Forcanisters greaterthan 55 gallons, "breakthrough" is defined for purposes of this Consent Decree as any reading ofbenzene above 10 ppm. Beginning no later than the Entry Date, INVISTA shall monitor for breakthrough from a single carbon canister system once every calendardaythatthere is actual flow to the carbon canister. INVIST A shall replace the single carbon canister with a fresh carbon canister, discontinue flow, orroute the stream to an alternate, appropriate device immediately when breakthrough is detected. For purposes ofthis Subparagraph, "immediately" shall mean within twenty-four (24) hours. Ifa single canister has been found to exceed the applicable breakthrough concentration, flow must be discontinued to that canister immediately. Such a spentcanister may not be placed back into Benzene Waste NESHAP vapor control service until it has been appropriately regenerated. g. INVISTA shall continue to maintain a readily-available supply offresh carbon canisters at alltimes for the Victoria and Orange Facilities where canisters are used as a control device or shall otherwise ensure that such canisters are readily available to implementthe requirements ofthis Paragraph 53. Forpurposes ofthis Paragraph, readily-available shall mean that INVISTA shall maintain a supply offresh carbon canisters that are available within eight (8) hours for canistersthat are 55 gallons or less and with twenty-four (24) hours for carbon canisters that are greater than 55 gallons. h. INVIST A shall continueto maintain records a.ssociated with the requirements ofthis Paragraph, including all carbon canister monitoring readings and the constituents being monitored for at least five (5) years after such readings occur. 54. Annual Review. Within sixty (60) days after the Entry Date, INVISTA shall modifY, to the extent necessary, its existing written managemerit ofchange procedures to provide for an annual review ofprocess information for the Victoria and Orange Facilities, including but not limited to construction projects, to ensure that all new benzene waste streams are included in the waste stream inventory. INVISTA shall conduct such reviews on an annual basis. 55. Laboratorv Audits. INVISTA shall conduct audits ofall laboratories that perform analyses ofINVISTA's Benzene Waste NESHAP samples to ensure that proper analytical and quality assurance/quality control procedures are followed for such sanples.

a. Within 180 days afterthe Entry Date, INVISTA shall complete initial audits ofhalfthe laboratories used by the Orange and Victoria Facilities, and shall completethe audits for the remaining laboratories within 365 days ofthe Entry Dare. INVISTA shall also

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audit any new laboratory to be used for analyses ofbenzene samples from the Orange and Victoria Facilities priorto use ofthe new laboratory. IfINVIST A has completed an audit ofany laboratory on or afterJanuary 1,2006, initial audits ofthose laboratories pursuant to this Subparagraph shall not be required. b. During the term ofthis Consent Decree, INVISTA shall conduct subsequent laboratory audits such that each laboratory is audited once every two (2) calendar

.years.

c. INVIST A may conduct audits itself, retain third parties to conduct these audits, or use audits conducted by others as its own, but the responsibility and obligation to ensure compliance with this ConsentDecree, this Paragraph and Subpart FF are solely INVISTA's. 56. Benzene Spills. For any spill ateither the Victoria or Orange Facility after the Entry Date, INVISTA shall review the spill to determine ifany**benz'~ne** waste, as defined by Subpart FF, was generated as a result ofthe spill. INVISTA shall continue to account for all benzene wastes generated through spills that are not managed in cOO1trolled equipment, in an enhanced biotreatment unit, or shipped offsite in accordance with 40 G.F.R. 

### §§ 61.342-348 in its annual calculation against the 2 Mg compliance option. 57. Training.

a. Within 90 days after the Entry Date, INVISTA shall develop and implement a program for annual (i.e. once each calendaryear) training for all employees who draw benzene samples for Benzene Waste NESHAP purposes. b. Within 120 days after the Entry Date, INVISTA shall complete the development ofstandard operating procedures (where they do not already exist) for all control devices and treatment processes used to comply with the Benzene Waste NESHAP at the Victoria and Orange Facilities.

c. Within 180 days after the Entry Date, INVISTA shall complete an initial training program regarding these procedures for all operators assigned to the relevant equipment, ifsuch training has not already been provided. Comparable training shall also be provided to any persons who subsequently becomeoperators, prior to their assumption ofthis duty. "Refresher" training in these procedures shall be performed on a three-year cycle (i.e., once every three calendar years). d. INVISTA shall require any contractors hired to perform any ofthe requirements ofthis Subsection VI to provide evidencethat its employees are properly trained to implement any requirements that they are hired to perform pursuant to Paragraphs 51, 53, 58, 60, and 61 ofthis ConsentDecree. 58. Sampling Under the 2 MG Compliance Option. INVISTA shall conductquarterly sampling as described by this Paragraph at the Victoria and Orange Facilities for the purpose of

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calculating quarterly, uncontrolled benzene quantities.

a. Within 180 days after the Entry Date, INVISTA shall submitto EPA for approval a samplingplan for the Victoriaand Orange Facilities designedto identifY the quarterly benzene quantity in uncontrolled benzene waste streams. That sampling plan shall include, but need hot be limited to: (i) proposed sampling locations and methods for flow calculations at the "end ofline" ofthe uncontrolled benzene waste streams; (ii) quarterly sampling ofall uncontrolled waste streamsthatcounttoward the 2 Mg/yr calculation and contain greaterthan 0.05 Mg/yrofbenzene; (iii) quarterly sampling ofall uncontrolled waste streams that qualifY for the 10 ppmw exemption (40 C.F.R. § 61.342(c)(2» and that contain greaterthan 0.1 Mg/yr of benzene. The Sampling Plans may identifY commingled, exempt w(J,ste streams for sampling, provided INVISTA demonstrates that the benzene quantity ofthose ,;ommingled streams will not be underestimated. Subparagraph 58.a(i) above shall not apply so long as the configuration of the sewer systems at the Victoria and Orange Facilities are not modified from the 2007 configuration, except as contemplated by Paragraphs 47 and 50. b. Ifchanges in processes, operations, or other f2.ctors leadINVISTA to concludethat its approved SamplingPlan may no longer provide an accurate measure ofthe Facility's quarterly benzene quantity in uncontrolled benzene waste streams, INVISTA shall submit a revised sampling plan to EPA for approval within 60 days after discovery ofan issue under this Paragraph occurs.

c. INVISTA shall commence sampling under its Sampling Plan during the first full calendar quarter following submittal ofthe Plan, regardless ofwhether ornot the Plan is approved at that time. INVISTA shall take, and have analyzed, at leastthree representative samples from each identified sampling location. INVISTA shall use the average ofall samples taken and the identified flow calculationsto determine its quarterly benzene quantity in uncontrolled waste streams and to estimate a calendaryear value for the Facility. d. After at least eight quarters ofsampling under an approved Sampling Plan under this Paragraph 58, INVISTA may submit a report to EPA that tequests a change in the monitoring frequency for the Victoria and/or Orange Facilities. IfEPA determines, after an opportunity for consultation with INVISTA, that the information presented in the report supports a change in the monitoring frequency for one ormore ofthe facilities, then the monitoring frequency requirement under this Paragraph will be modified in accordance with Paragraph 141 (Modification). 59. Quarterlv and Annual Estimations ofUncontrolled Benzene Quantity. Atthe end ofeach calendar quarter following commencement ofquarterly sampling, INVISTA shall calculate a quarterly uncontrolled benzene quantity and shall estimate a projected calendaryear uncontrolled benzene quantity based on the quarterly sampling result3 and the approved flow calculations. INVISTA shall submitthe uncontrolled benzene quantity in the Semi-Annual Reports due under Section XII ofthis Decree.

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60. CorrectiveMeasures.

a. Applicability. Ifthe calculations in Paragraph 59 indicate that the quarterly uncontrolled benzene quantity exceeds 0.5 Megagrams or the projected calendaryear uncontrolled benzene quantity exceeds 2.0 Megagrams, INVISTA shall submit in its SemiAnnual Report all relevant information and identifY whether any action should be taken to reduce benzene quantities in its waste streams for the remainder ofthe calendaryear. Ifadditional actions are determined to be necessary to ensure compliance with th€;:2 Mg Compliance Option, INVISTA will include in the Semi-Annual Report, a BWON Corrective Measures Plan as specified in Subparagraph 60.b. b. BWON Corrective Measures Plan. The BWON Corrective Measures Plan required by this Paragraph shall identifY: (i) the cause ofthepotentially elevated benzene quantities; (ii) all corrective actions thatINVISTA has taken or plans to take to ensure that the cause will not recur; and (iii) an appropriate strategy and schedule that INVISTA shall implement to ensure that INVISTA complies with the 2 Mg Compliance Option. Ifa spill event is the main cause ofthe potentially elevated benzene quantities, the BWON Corrective Measures Plan will focus on the spill event and on future measures to minimizt: and address spills. INVISTA shall implement its BWON Corrective Measures Plan in al;cordance with the schedule provided therein.

c. Third-Party TAB Study and Compliance Review. After a second consecutive quarter in which at least one ofthe conditions in Subparagraph 60.acontinues to exist and INVISTA is not then able to identifY the cause(s) and/or appropriate corrective measures to ensure compliance with the 2 Mg Compliance Option, INVISTA shall retain a thirdparty contractor to undertake a comprehensive TAB study and compliance review ("Third-Party TAB Study and Compliance Review") at the applicable Facility. By no laterthan the last day of the next following quarter, INVISTA shall submit a proposal to EPA that identifies the contractor, the contractor's scope ofwork, and the contractor's schedule for the Third-Party TAB Study and Compliance Review. Unless EPA disapproves or seeks modifications ofthe proposal within thirty (30) days after its receipt, INVISTA shall authorize the contractor to commence work. INVISTA shall ensure that the work is completed in accordan.;e with the schedule provided therein. No later than thirty (30) days after INVISTA receives the results ofthe ThirdParty TAB Study and Compliance Review, INVISTA shall submit the results to EPA. After the report is submitted to EPA, INVISTA and EPA shall discuss infonnally the results ofthe ThirdParty TAB Study and Compliance Review. No later than ninety (90) days after INVISTA receives the results ofthe Third-Party TAB Study and Compliance**R,~view** or at such other time as INVrSTA and EPA may agree, INVISTA shall submit to EPA a plan and schedule for remedying any deficiencies identified in the Third-Party TAB Study and Compliance Review and any deficiencies that EPA identified following the Third-Party TAB Study and Compliance Review. Unless EPA disapproves or seeks modifications ofthe proposal within thirty (30) days after its receipt, INVISTA shall implement the remedial plan in accordance with the schedule included in its plan.

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61. Miscellaneous Measures

a. By no later than sixty (60) days after the Entty Date, INVISTA shall: 

### i.

. Conduct monthly visual inspections ofand, ifappropriate, refill all Subpart FF watertraps within the Orange and Victoria Facilities individual drain systems; ii. IfINVISTAutilizes conservation vents, visually inspect all Subpart FF conservation vents or indicators on process sewers for detectable leaks on a weekly basis,**re~;et** anyvents where leaks are detected, and record the results ofthe inspections. Aftertwo (2) years ofweekly inspections, and based upon an evaluation ofthe recorded results, INVISTA may submit a request to EPA Region 6 to modifY the frequency ofthe inspections. Alternatively, for conservation vents with indicators that identifY whether flow has occurred, INVISTA may elect to visually inspect such indicators on a monthly·basis and, ifflow is then detected, INVISTA shall then visually inspectthat indicator on a weekly basis for four weeks. Ifflow is detected during any two ofthose four weeks, INVISTA shall install a carbon canisteron that vent until appropriate corrective action(s) can be implemented to prevent such flow. Nothing in this Subparagraph shall require INVISTA to monitor conservation vents on fixed rooftanks. b. By no laterthan sixty (60) days aftercompletingthe segregation project under Paragraph 47 and 50, INVISTA shall identifY and mark at the drain all area drains in the ADN Area that are segregated stormwater drains. 62. Recordkeeping and Reporting Requirements for this Section VI: Outside ofthe Reports Required under 40 C.F.R. § 61.357 and the Semi-Annual Reports Required by Section 

### XII (Periodic Reporting). Atthe times specified in the applicable provisions ofthis Section VI, INVISTA will submit, as and to the extentrequired, the following reports to EPA:

a. a certification ofcompliance under Paragraph 52; b. a report certifying the completion ofinstallation ofdual carbon canisters (under Subparagraph 53.a);

c. a BWON Sampling Plan (under Subparagraph 58.a), and revised BWON Sampling Plan, ifnecessary (under Subparagraph 58.b). 63. Recordkeeping and Reporting Requirements for this Section VI: As Part ofthe Semi-Annual Reports Required by Section 

### XII (Periodic Reporting). INVISTA shall submit the following information in the Semi-Annual Reports submitted pursuant to Section 

### XII (Periodic Recordkeeping) for the six month period covered by the Report:

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 39 of 69

a. An identification ofall laboratory audits, ifany, completed during the six month period, including a description ofthe methods used in the audit and the results ofthe audit; b. A description ofthemeasures taken, ifany, during the six month period to comply with the training provisions ofParagraph 57; and

c. A summary ofthe sampling results required under Paragraph 58, including the quarterly and projected annual uncontrolled benzene quantities or TAB, as applicable. VII. LEAKDETECTION AND REPAIR PROGRAM

### JH:NHANCEMENTS 64. In order to minimize or eliminate fugitive emissions ofvolatile organic compounds ("VOCs"), benzene, volatile hazardous air pollutants ("VHAPs"), and organic hazardous air pollutants ("HAPs") from equipment in light liquid and/or in gas/vapor service, INVISTA shall undertake the enhancements identified in this Section VII to its leak detection and repair ("LDAR") programs atthe Victoria and Orange Facilities under all applicable federal Clean AirAct, and analogous state and local LDAR requirements. 65. Written LDAR Program Description. By no laterthan sixty (60) days after the Entry Date, INVISTA shall develop and maintain a written LDAR Program Description for a program for compliance with all federal, state, and local LDAR regulations applicable to the Victoria and Orange Facilities. INVISTA shall update the LDAR Program Description as may be necessary to ensure continuing compliance. The LDAR Program Description shall include, at a minimum:

a. A set ofleakrate goals for the Victoria and Orange Facilities that will be a target for achievement on a process-unit-by-process-unit basis. Such targets shall have the purpose offacilitating lower leak rates and are not intended as enforceable requirements; b. An identification ofall equipment in light liquid and/or in gas/vapor service that is subjectto periodic monitoring**rl~quirements** via 40 C.F.R. Part 60, EPA Reference TestMethod 21 under any applicable federal, state, or local LDAR regulation and that has the potential to leak VOCs, HAPs, VHAPs, and benzene within the Victoria and Orange Facilities process units.

c. Procedures for identifying leaking equipment within the Victoria and Orange Facilities process units; d. Procedures for repairing and keeping track ofleaking equipment;

e. Procedures for identifying and including new equipmentto be added to the LDAR program;



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f. A process for evaluating new and replacement equipment to promote consideration and installation ofequipment th,lt will minimize leaks and/or eliminate chronic leakers; g. A description ofthe Facility's LDAR monitoring organization and a designation ofthe person or position responsible for LDAR management who has the authority to implement LDAR improvements at the Facility, as required byParagraph 67; and h. A procedure for regularly communicating LDAR information to appropriate INVISTA personnel. 66. Training. INVISTA shall continue to implement its current training program, which includes the following features, and within ninety (90) days ofcompletion ofthe written LDAR Program Description, INVIST A shall begin to implement a new training program at the Victoria and Orange Facilities which includes the following features

a. For personnel newly-assigned to LDAR responsibilities, lNVIST A shall require LDARtraining prior to each employee beginning such work; b. For all personnel assigned LDAR responsibilities, INVIST A shall provide and require completion ofannual LDAR training orrequire its LDAR contractor to provide such training (initial annual LDAR training for all such personnel will be completed not later than one year after the Entry Date);

c. For all other Facility operations and maintenance personnel (including contract personnel) who have duties relevant to LDAR, INVISTA shall provide and require completion ofan initial training program that includes instruction on aspects ofLDARthat are relevantto the person'sduties (initial LDAR training for all such personnel will be completed not tater than one year after the Entry Date); and d. For the individuals covered by this Paragraph, "refresher" training in LDAR shall be performed on a cycle ofno longer than three years. 67. LDARPersonnel. By no later than 180 days after the Entry Date, INVISTA shall establish a program that holds each person assigned LDAR responsibilities accountable for assuring compliance with LDAR. By no later than ninety (90) days after the Entry Date, INVISTA shall establish and maintain a person or position with responsibility for LDAR management and authority to implement LDAR improvements. 68. LDAR Audits. lNVISTA shall implementFacility-wide LDAR Auditsincluding an Initial LDAR Audit and Regular LDARAudits as set forth in this Paragraph to ensure the Victoria and Orange Facilities' compliance with all applicable LDAR requirements. Each LDARAudit shall include, but shall not be limited to: (i) performing comparative

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monitoring; (ii) reviewing records to ensure monitoringand repairs were completed in the required periods; (iii) reviewing component identification procedur,es, tagging procedures, and data management procedures; and (iv) observingLDARtechnicians' calibration and monitoring techniques. During each LDAR Audit, leak rates shall be calculated for each process unit where comparative monitoring was performed.

a. Initial LDARAudit. INVISTA shall retain a third-party contractorto complete an Initial LDARAudit for the Victoria Facility by no later than December 31,2009, and for the OrangeFacilityby no later than June 30, 2010. b. Initial Audit Report. Within ninety (90) days ofcompletion ofeach audit, INVISTA shall report toEPA any areas ofnon-compliance identifi(;!d as a result ofits audit and submit in writing a proposed compliance schedule for correcting the: non-compliance. Ifthe proposed compliance schedule extends greater than ninety (90) days beyond the audit completion date, INVIST A must seek approval ofthe compliance schedule from EPA. INVIST A shall implement the compliance schedule as proposed until the schedule is approved ordisapproved by EPA. Within ninety (90) days ofcompletingeach audit, INVISTA shall certifY to EPA that the facility: is incompliance; has completed related corrective action (ifnecessary); and/or is on a compliance schedule, and shall specifically certifY that all affected equipmenthas been identified and included in the facility LDARprogram. Violations identified in the report ofthe initial audit conducted pursuant to Subparagraph 68.a and corrected by INVISTA as required in Paragraph 69 shall not be subject to the stipulated penalties in Paragraph 89.

c. Regular LDARAudits.

l.

. Third-Party Audits. INVISTA shall retain a contractorto perform a Third-Party LDARAudit ofthe Victoria and Orange Facilities' LDARprogram at least once every four (4) calendar years after the Initial LDAR Audit is completed under Subparagraph 68.a (with approximately48 months between the Audits).

11. Internal Audits. Internal LDAR Audits ofthe Victoria and Orange Facilities' LDAR program shall be completed by having an audit performed by personnel familiar with the LDAR program and its requirements. INVISTA shall complete an Internal LDARAudit by no later than two (2) years from the date ofthe completion of the third-party audits required in Subpc:ragraphs 68.a and 68.c.i. INVIST A shall perform an internal audit ofthe Victoria and Orange Facilities' LDAR program at least once every four (4) calendaryears (with approximately 48 months betweenthe Audits). INVISTA may elect to retain third-parties to undertake an Internal Audit, provided that a Regular LDAR Audit at the Victoria and Orange Facilities occurs every two (2) years.

1II. Timing. To ensure that an LDARAudit occurs every two (2) years at the Victoria and Orange Facilities, once the Initial Audit is

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completed, the remaining Third-Party Audits and Internal Audits shall be separated by not more thantV\iO (2) calendaryears (with approximately 24 months between the Audits). 69. Implementation ofActions Necessary to CorrectNon-Compliance. Ifthe results ofany ofthe LDAR Audits conducted pursuant to Paragraph 68 identifY any areas of noncompliance, INVISTA shall implement, as soon as practicable, all steps necessary to correct orotherwise address such area(s) ofnon-compliance and to prevent, to the extent practicable, a recurrence ofthe cause ofsuch non-compliance. Forpurposes ofthis Paragraph, a ratio ofthe process unit valve leak percentage, established through a comparative monitoring audit conducted under Paragraph 68 to determine the average valve leak percentage reported for the process unit for the four quarters immediately precedingthe audit, in excess of3.0 shall be deemed a cause for corrective action. Ifthe calculated ratio yields an infinite result, INVISTA shall assume one leaking valve was found in the process unitthrough its routine monitoring during the four-quarter period. INVISTA shall, during the term ofthis Consent Decree, retain the Initial Audit Report and all otherLDAR Auditreports generated pursuant to Paragraph 68, and shall maintain a written record ofall corrective actions that INV[STA takes in response to deficiencies identified in any LDARAudits. After the completion ofany LDAR Audit other than the Initial Audit, INVIST A shall include the following information in the next Semi-Annual Report due under Section

### XII ofthis Consent Decree: (a) a summary, including findings, ofeach such LDAR Audit; and (b) a list ofcorrective actions taken during the reporting period and any schedule for implementing future corrective actions. 70. Internal Leak Definition for Valves and Pumps. Unless otherwise exempt from monitoring under all applicable regulatory requirements, INVISTA shall continue to utilize the following internal leak definitions for valves and pumps in light liquid and/or gas/vapor service, unless otherpermit(s), regulations, or laws require the use oflower leak definitions. If INVISTA's compliance with the Consolidated Federal Air Rule ("CAR") at 40 C.F.R. Part 65 is at least as stringent as the requirements under this Paragraph and compliance with CAR is achieved on orbefore the deadlines set pursuant to this Paragraph, then compliance with CAR shall constitute compliance with this Paragraph.

a. Leak Definition for Valves. By no later than 365 days afterthe Entry Date, INVISTA shall utilize an internal leak definition of500 ppm VOCs for valves that have not been previously**su~iect** to this internal leak definition at the Victoria and Orange Facilities, excluding pressure reliefdevices. b. Leak Definition for Pumps. By no later than 365 days after the Entry Date, INVISTA shall utilize an internal leak definition of2000 ppm for centrifugal pumps that have not been previously subjectto this internal leak definition at the Victoriaand Orange Facilities. Reciprocating pumps, connectors, compressors, and other components shall retain their applicable regulatory leak definition.

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71. LDAR MonitoringFrequency. IfINVISTA's compliance with CAR (40 C.F.R. Part 65) is at least as stringent as the requirements underthis Paragraph and compliance with CAR is achieved on orbefore the deadlines set pursuantto this Paragraph, then compliance with CAR shall constitute compliance with this Paragraph.

a. Pumps. When the lower internal leak definition for pumps becomes applicable under Subparagraph 70.b, and unless more frequent monitoring is required by applicable LDARrequirements, INVISTA shall monitorpumps atthe internal leak definition on a monthly basis. b. Valves. When the lower internal leak definition for valves becomes applicable under Subparagraph 70.a, and unless more frequent monitoring is required by applicable LDARrequirements, INVISTA shall monitor valves (otherthan difficult to monitor orunsafe to monitor valves) at the internal leak definition on a quarterly basis, with no ability to skip periods on a process-unit-by-process-unitbasis. 72. Reporting, Recording, Tracking, Repairing and·Remonitoring Leaks ofValves and Pumps Based on the Internal Leak Definitions. IfINVISTA's compliance with CAR(40 C.F.R. Part 65) is at least as stringentas the requirements under this Paragraph and compliance with CAR is achieved on or before the deadlines set pursuant to this Paragraph, then compliance with CAR shall constitute compliance with this Paragraph.

a. Reporting. Forregulatory reporting purposes, INVISTA may continueto report leak rates in valves andpumps against the reporting requirements stated in applicable regulations, or may use the lower, internal leak definitions specified in Paragraph 70. b. Recording, Tracking, Repairing and Remonitcring Leaks. INVISTA shall record, track, repair, and re-monitor all leaks in excess ofthe internal leak definitions of Paragraph 70 (at such time as those definitions become applicable). Except as provided. otherwise in this SectionVII, INVISTA shall make a first attempt atrepair and remonitorthe componentwithin five (5) calendardays after a leak is detected and, ifcontinuing to leak, either complete repairs and re-monitor leaks orplace such component on the Facility's delay ofrepair list according to Paragraph 77 within thirty (30) days after a leak is detected. All records of repairs, repair attempts, and remonitoring shall be maintained for the life ofthe Consent Decree. 73. Initial Attempt at Repair on Certain Valves. By no later than ninety (90) days after the Date ofEntry, INVIST A shall promptly make an "initial attempt" at repair after detecting a leak at a reading greater than 200ppm ofVOCs at any valve, excluding pressure reliefdevices, control valves, valves that are on the delay ofrepair**li~,t,** and components that LDAR personnel are not authorized to repair. INVIST A or its designated contractor shall remonitor the valve in question within five (5) calendar days after the "initial attempt" to repair. If the remonitored leak reading is below the applicable leak definition, no further action will be necessary. Ifthe re-monitored leak reading is greaterthan the applicable leak definition, INVISTA shall repair the valve according to the requirements ofSubparagraph 

### n.b, exceptthat no first repair attemptrequirement shall apply. IfINVISTA can dem)nstrate with sufficient, statistically significant monitoring data over a period ofat least two years that "initial attempts"

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to repair at 200 ppm worsen ordonot improve leak rates, INVISTA may request EPA to reconsider or amend this requirement 74. Electronic Monitoring, Storing, and Reporting ofLDARData.

a. Electronic Storing and Reporting ofLDAR Data. INVISTA has and shall continue to maintain an electronic database for storing and reporting LDARdata at the Victoria and Orange Facilities. b. Electronic Data Collection DuringLDAR Monitoring and Transfer Thereafter. By no later than 180 days afterthe Entry Date, INVISTA shall use data loggers and/or electronic data collection devices during all LDAR monitoring atthe Victoria and Orange Facilities. INVISTA, or its designated contractor, shall use its best efforts to transfer, by the end ofthe next business day, the electronic data from electronic data logging devices to the electronic database maintained pursuantto Subparagraph 74.a. For all monitoring events in which an electronic data collection device is used, the collected monitoring data shall include a time and date stamp, and identification ofthe instrument and operator. INVISTA may only use paper logs where necessary or more feasible (e.g., small rounds, re-monitoring, or when data loggers are unavailable orbroken, etc.), and shall record, at a minimum, the identity ofthe technician, the date, the monitoring starting and endingtimes, all monitoring readings, and an identification of the monitoring equipment. INVISTA shall use its best efforts to transfer any manually recorded monitoring data to the electronic database maintained pursuantto Subparagraph 74.a within seven (7) days ofthe monitoring event. 75. QAIQC ofLDAR Data. By no laterthan 90 days after the Entry Date, INVISTA (ora third-party contractorretained by INVISTA) shall develop and :implement procedures for quality assurance/quality control ("QA/QC") reviews ofall data generated by LDARmonitoring technicians. INVISTA shall ensure that monitoring data provided by monitoring technicians is reviewed daily for QAlQC. At leastonce per calendar quarter, INVISTA shall perform a QAlQC review ofeach contractor'smonitoring data which shall include, but not be limited to, a review of: (i) the number ofcomponents monitored per technician; (ii) the time between monitoring events; and (iii) abnormal data patterns. 76.**~alibration/Calibration** DriftAssessment.

a. Calibration. INVISTA shall conduct all calibrations ofLDAR monitoring equipment at the Victoriaand Orange Facilities using methane as the calibration gas, and in accordance with 40 C.F.R. Part 60, EPA Reference Test Method 21. b. Calibration Drift Assessment. By no later than 365 days after the Entry Date, INVISTA shall conduct calibration drift assessment re-checks ofthe LDAR monitoring equipment at least atthe end ofeach day and anytime a machine shuts off. INVISTA shall conductthe calibration drift assessment re-check using a calibration gas with a concentration approximately equal to the applicable internal leak definition for the life ofthis Consent Decree as defined in Section XXVII (Termination ofConsent Decree). Ifany calibration drift assessment after the initial calibration shows a negative drift ofmore than 10% from the previous



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calibration, INVISTA shall remonitor all valves that were monitored since the last calibration or calibration drift assessment thathad a reading greater than 200 ppm**~lnd** shall remonitor all pumps that were monitored since the last calibration or calibration drift assessment that had a reading greater than 500 ppm. 77. Delay ofRepair.

a. By no later than ninety (90) days after the Entry Date, INVISTA shall take the following actions for any equipment at the Victoria and Orange Facilitiesthat INVISTA intends to place on the "delay ofrepair" 'list, under applicable regulations: 

### i. INVISTA shall require sign-offby the emit supervisor within thirty (30) days ofidentifYing that a piece of**j~quipment** is leaking at a rate greaterthan the applicable leak definition and that such equipment qualifies for delayed repair under applicable regulations; ii. INVISTA shall include equipmentthat is placed on the "delay of repair" list in INVISTA's regular LDAR monitoring; iii. INVISTA shall use its best efforts to isolate and repair centrifugal pumps identified as leaking at a rate of2,000 ppm or greater; and

IV. Beginning no later than six (6) months from the Date ofLodging ofthe Consent Decree, on valves subject to the LDAR Regulations, otherthan control valves and pressure reliefvalves, that are leaking at a rate of 10,000 ppm or greater, INVISTA will use a "drill and tap" or equivalent method for fixing such leaking valves, unless INVISTA can demonstrate that there is a safety, mechanical, oradverse environmental concern posed by attempting to repairthe leak in this manner. INVISTA will perform the first "drill and tap" (or equivalent repair method) within fifteen (IS) days, and a second attempt (ifnecessary) within thirty (30) days after the leak is detected. Ifa new metbod develops for repairing such valves, INVISTA will advise EPA prior to implementing the use ofsuch new method in place ofdrill and tap for repairs required under this Decree. 78. Chronic Leakers. A valve shall be classified as a "chronic leaker" under this Paragraph ifit leaks above 5,000 ppm twice in any consecutive four (4) quarters after the Entry Date, unless the valve has not leaked in the twelve (12) consecutive quarters prior to the relevant process unit turnaround. Following the identification ofa "chronic le:tker" non-control valve, INVISTA shall replace, repack, or perform similarly effective repairs on the chronic leaker during the next process unit turnaround. 79. Alternate Leak Detection Method. As an alternative tcthe LDAR requirements

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outlined in Paragraphs 75 and 76 above, INVIST A may begin using an alternate leak detection method

- such as a method employing "Smart LDAR" technology

- within one year ofEntry Date. 80. Recordkeeping and Reporting Requirements for this Section.

a. In the Semi-Annual Reports submitted by INVIST A pursuantto Section XII (Periodic Reporting), INVISTA shall include the following information in the Report for the period in which the identified activity occurred or was required:

1. A copy ofthe LDARProgram Description under Paragraph 65; ii. A certification that the training program has been implemented as required by Paragraph 66; iii. An identification ofthe person orposition responsible for LDAR performance as required by Paragraph 67;

IV. A certificationthat the lower leak deflnitions and increased monitoring frequencies have been implemented according to Paragraphs 70 and 71;

v. A certification ofthe implementation ofthe "initial attempt" to

.repair program under Paragraph 73; vi. A certification ofthe implementation ofQAlQC procedures for review ofdata generated by LDARtechnicians as required by Paragraph 75;

Vll. A certification ofthe implementation ofthe calibration drift assessmentprocedures ofParagraph 76; viii. A certification ofthe implementation ofthe "delay ofrepair" procedures ofParagraph 77; ix. A list ofthe process units monitored during the reporting period;

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

Xl. The number ofvalves and pumps monltored in each process unit; xii. The number ofvalves and pumps found leaking for each process unit; xiii. The number of"difficultto monitor" pieces ofequipment monitored;

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xiv. The projected month and year ofthe next monitoring event for that unit;

xv. A list ofall equipment currently on**th,~** "delay ofrepair" list and the date each componentwas placed enthe list; xvi. The number ofrepairs not attempted within five (5) days and thirty (30) days pursuant to Subparagraph n.b; xvii. The number ofinitial attempts at repair not made promptly and remonitored within five (5) days pursuant to Paragraph 73; xviii. The number ofrepairs not completed at the next process unit turnaround pursuantto Paragraph 78; and xix. The numberofrepairs not completed within fifteen (15) days and thirty (30) days under Subparagraph n.a.iv. b. Special Requirement for Initial Semi-Annual Report Each Year. As part ofthe first Semi-Annual Report submitted eachyear pursuant to Section XII (Periodic Reporting), INVISTA shall identity each LDAR Audit that was conducted under Paragraph 68 in the previous calendar year, including an identification ofthe auditon;, a summary ofthe audit results, and the actions that INVISTA took or intends to take to correct identified deficiencies. 

### VIII. RESOLUTION OFCLAIMS 81. Claims Based onViolations in Appendix A. Entry ofthis Consent Decree shall resolve INVISTA's civil and administrative liability to the Plaintiffs for the alleged violations specified in Appendix A. 82. Claims Based on Violations in Appendix B. Satisfaction ofthe requirements in Sections IV and V ofthis ConsentDecree shall resolve INVISTA's <:ivil and administrative liability to the Plaintiffs for NNSRlPSD orNSPS claims, as applicable, arising out ofthe alleged violations specified in Appendix 

### B. Notwithstanding the resolution ofliability in this Paragraph, the release ofliability by the Plaintiffs to INVlSTA for claims arising out ofthe alleged violations specified in Appendix B shall be rendered void ifINVISTA materially fails to comply with the obligations and requirements ofSection IV (relating to NNSRlPSD Requirements) or Section V (relating to NSPS Flaring Devices) ofthis Consent Decree; provided, however, that the release in this Paragraph shall not be rendered void ifINVISTA remedies such failure and pays any stipulated penalties due as a result ofsuch material failure. 83. Claims Based on BWON and LDAR Violations. Sati:;faction ofthe requirements in Section VI and VII ofthis Consent Decree shall resolve INVISTA's civil and administrative liability to the Plaintiffs for (1) BWON and LDAR claims arising out ofthe alleged violations specified in Appendix C and (2) violations offederal orfederally-enforceable state or local

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LDAR requirements applicable to the Victoria and Orange facilities that commence priorto the Date ofLodging, provided that the events giving rise to such violations are identified by INVISTA in its initial third party audit reports submitted pursuant to Paragraph 68.b and corrected by INVISTA as required under Paragraph 69. Notwithstanding the resolution of liability in this Paragraph, the releases ofliability by the Plaintiffs to INVIST A for claims arising out ofthe alleged violations specified in AppendixC or identified in the Paragraph 68.b initial audit report shall be rendered void ifINVISTA materially fails to comply with the obligations and requirements ofSections VI and VII (relating to BWON and LDAR Requirements) ofthis Consent Decree; provided, however, that the releases in this ParagralJh shall not be rendered void ifINVISTA remedies such failure and pays any stipulated penalties due as a result ofsuch material failure. 84. Nothing in this Consent Decree is intended nor shall he construed as a waiver by EPA, the United States or ofany ofthe Plaintiffs ofits right to institute an administrative or civil action against INVISTA for any past, present, or future civil violations ofany statutes, rules or regulations other than for those violations listed in AppendixA, B, or C. Nothing in this Consent Decree is intended nor shall be construed to operate in any way to resolve any criminal liability ofINVISTA. Except as otherwise provided in Paragraphs 81-83, INVISTA's compliance with this Consent Decree shall be no defense in law orequity to any actiotl commenced by the Plaintiffs pursuant to any federal, state or local law, regulation, or permit. 85. The United States', DNREC's, SCDHEC's and the CHCAPCB's agreement to the terms ofthis ConsentDecree is expressly conditioned on the completeness, accuracy and truth of INVISTA's certifications set forth in Subparagraphs 97.athrough 97.h ofthis Consent Decree. In the event that INVIST A has made any material misrepresentatiom; or omissions in any Subparagraph 97.athrough 97.h ofthis Consent Decree:

a. The Resolution ofClaims in Paragraphs 81-83 shall bejointly voidable by action ofthe United States and the Applicable Co-Plaintiff, exceptthat any civil penalty or stipulated penalty payments already made by INVISTA under this Consent Decree shall be forfeited by INVIST A; and b. The Plaintiffs may pursue all civil and criminal remedies and sanctions available to them under law on account ofDefendant's violations, including criminal prosecution for perjury or false swearing. 86. In the event that INVISTA has made a nonmaterial misrepresentation oromission in any Subparagraph 97.athrough 97.h then the Resolution ofClaims in Paragraphs 81-83 shall bejointly voidable by action ofthe United States and the Applicable Co-Plaintiffsolely with respect to the violations to which such nonmaterial misrepresentation related, but not voidable in their entirety. 

### IX. PAYMENT OFCIVILPENALTIES 87. Within thirty (30) days after Date ofEntry ofthisConsent Decree, INVISTA shall pay to the Plaintiffs a civil penalty totaling $],700,000 dollars in accordance with Subparagraphs 87.a- 87.fbe\ow, in settlement ofthe civil violations alleged in the Plaintiffs' Complaints.

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a. INVISTA shall pay the amount of$850,000 to the U.S. Treasury. Such payment shall be made by EFT to the U.S. Department ofJustice lockbox bank in accordance with instructions provided by the United States to INVISTA upon execution oftheConsent Decree, and shall reference USAO File Number and DOJ Case Number 90-5-2-1-08892. Any such EFT received at that lockbox bank after 11 :00 a.m. (Eastern Time) will be credited on the following business day. b. lNVISTA shall pay the amount of$500,000 to DNREC.

c.**n'~VISTA** shall pay the amount of$250,000 to SCDHEC. d. INVISTA shall pay the amount of$100,000 to the CHCAPCB.

e. INVISTA shall pay any amounts due to DNREC, SCDHEC, orthe CHCAPCB by certified or corporate check payable to that entity and sent by first-class mail to the first person listed under theNotice section (Section XVIII) below. f. INVISTA shall send notice to the United States that payment has been made in accordance with Section XVIII ofthis Consent Decree (Norices). 88. INVISTA shall not deduct any penalties paid under this Decree pursuant to this Section or Section X (Stipulated Penalties) in calculating its federal or State income taxes. 

# x. STIPULATEDPENALTIES/ VIOLATION OF CONSENT DECREE 89. For any failure by INVISTAto comply with the terms ofthis Consent Decree, and subject to the provisions ofSections XIV (Force Majeure) and XV (Dispute Resolution), lNVISTA shall pay, within thirty (30) days after receipt ofwritten**d4~mand** to INVISTA, the following stipulated penaltiesto the United States and/or the Applicable Co-Plaintiff:

ConsentDecreeViolation Stipulated Penalty (perday perviolation, unless otherwise specified) a. Failure to pay the civil penalty as $10,000 specified in Section IX (Payment ofCivil Penalties) ofthis Consent Decree b. Failure to comply with any applicable $100 for each 3-hour limit exceeded; 3-HourRolling Average, 24-Hour Rolling $1,000 for each 24-hour limit exceeded; Average Emissions Rate, 30-Day and $1,500 for each 30-day limit Emissions Rate, 30-Day Rolling Tonnage exceeded.

c. Failure to comply with any applicable $5,000 for each ton exceeding the limit 12-Month R011ing Average Emission Rate up to 100 tons; $10,000 for each ton or 12-Month Rolling Tonnage. exceeding 100 tons above the limit d. Failure to install, commence operation, $5,000 during the first 30 days, $7,000 or Continuously Operate the NOx or S02 for 31stthrough 60th day; and $10,000

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control devices on any Unit, or failure to thereafter or an amount equal to 1.2 times retire a Unit the economic benefit ofnon-compliance (as defined below in Paragraph 91), whichever is greater e. Failure to comply with the fuel $1,750 during the first 30 days, $5,000, or limitations ata Unit, as required by an amount equal to 1.2 times the Paragraphs 31-36 economic benefit ofnon-compliance (as defined below in Paragraph 91), whichever is greater f. Failureto install or operate CEMS as $1,000 required in Paragraph 26, 37, or 38 g. Failure to apply for any permit required $1,000 by SectionXVI h. Failureto install and fully implement $7,500 per month new ADN technology as required by Paragraph 44.a, ifapplicable i. Failure to complete any action to correct $7,500 per month noncompliance as required by Paragraphs 45,47-48, or 50 j. Failure to timely install Benzene $1,000 NESHAPcontrols required by Paragraph 46 or49 k. Failure to timely install orreplace $1,000 carbon canisters as required by Paragraph 53 1. Failure to maintain the records or $2,000 materials required by Section VI ofthis Decree m. Failure to establish an annual review $2,500 per month program to identity new benzene waste streams as required by Paragraph 54 n. Failure to perform laboratory audits as $5,000 per month required by Paragraph 55 o. Failure to implement training measures $10,000 per quarter specified in Paragraph 57 p. Failure to conduct sampling in

- $2,500 per week per stream accordance with the sampling plans

- $15,000 per quarter per stream, required in Paragraph 58 whichever is greater, but not to exceed $150,000 per quarter per facility q. Failure to identity/mark segregated $1,000 per drain per \veek stormwater drains as required by Paragraph 61.b r. Failure to monitor conservation vents or $1,000 per month oil-water separators as required by Paragraph 61.a.ii

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s. Failure to deliver written deliverables as $1,000 per week specified in Paragraph 62 or 63 t. Ifit is discovered by an EPA or state

- $250 for streams less than 

### 0.03Mg/yr investigator or inspector, or their agent,

- $1000 for streams between 0.03 and that INVISTA failed to include all benzene 

### 0.5Mg/yr waste streams in its TAB, for each waste

- $5,000 for streams greaterthan stream: 

### 0.5Mg/yr
u. Failure to timely develop an LDAR $3,500 per week program as required by Paragraph 65 v. Failure to timely implement a training $10,000 per month program as required by Paragraph 66 w. Failure to conduct any audits as $5,000 per month pe:r audit required by Paragraph 68 x. Failure to perform monitoring utilizing $100 per component, but not greater than the lower internal leak rate definitions in $10,000 per month per process unit Subparagraph 70(a) and (b) or to repair and remonitor leaks in accordance with Paragraph 72 y. Failure to implement the initial attempt $100 percomponent, but not greater than at rq>airQrogram in Paragraph 73 $10,000permonth per facilLty z. Failure to implement the quarterly $10,000 per month per facility 

### QAJQC procedures described in Paragraph 75 aa. Failureto implement and comply with $100 per component butnot greater than the LDAR monitoring program in the $10,000 per month per facility Written LDAR Program Description under Paragraph 65. bb. Ifit is determined through a federal, 'state or local investigation that INVIST A failed to include all valves and pumps in its LDAR program, INVISTA shall pay $2000 for those it failed to include. If INVISTA discovers 

### it has failed to include all valves and pumps in its LDAR program, 

### it shall pay $75 per component that it failed to include. cc. Failure to timely submit, modifY, or $750 during the first ten days, $1,000 implement, asapproved, the reports, plans, thereafter studies, analyses, protocols, or other submittals required by this Consent Decree, except as otherwise specified in this Paragraph 89, above. 90. Violation ofan emissions limit based on a 3-HourRof!ing Average basis is a violation for each 3-hourperiod during which the specified limit is exceeded. Violation ofa 24-

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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 52 of 69

Hour Rolling Average or a 30-Day Rolling Average is a violation for each calendar day on which the average exceeds the specified limit. Violation of 12-MorthRolling Tonnages is a violation for each calendar month during which the average exceedsthe limit. 91. Forthose provisions where a stipulated penalty ofeither a fixed amount or 1.2 times the economic benefit ofnon-compliance is available, the**deci~;ion** ofwhich alternative to seek shall rest exclusively within the discretion ofthe EPA and the Applicable Co-Plaintiff. For purposes ofthis Section X, the term "economic benefit ofnon-compliance" meansthe economic benefit accrued from delaying a capital investment, delaying a one-time expenditure, and avoiding recurring costs (such as operation and maintenance costs) overthe period ofnoncompliance. The overall "economicbenefit ofnon-compliance" will be calculated based onthe total number ofdays ofnon-compliance, and will be multiplied by 1.2 to computethe total stipulated penalty amount under a partiCUlar provision ofthis Section X. That total stipulated penalty amount will be assessed for the full period ofnon-compliance, and will not be assessed "perday." In no event shall any stipulated penalty assessed against lNVISTA exceed $37,500 (or any inflation-adjusted increase in that maximum penalty amount set pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1996) per day for any individual violation ofthis ConsentDecree. 92. All stipulated penalties shall begin to accrue on the day after the performance is due oron the day a violation occurs, whichever is applicable, and shall continue to accrue until performance is satisfactorily completed or untilthe violation ceases. Where a single event triggersmore than one stipulated penalties provision in this ConsentDecree, onlythe provision providing for the higher stipulated penalty shall apply, and that stipulated penalty is accrued for each day ofviolation unless otherwise specified in Paragraph 89. 93. INVISTA shall pay all stipulated penalties to the United States and the Applicable Co-Plaintiffs within sixty (60) days ofreceipt ofwritten demand to INVISTA from the United States and/or the Applicable Co-Plaintiff, and shall continue to make such payments every thirty (30) days thereafter until the violation(s) no longercontinues, unless INVISTA elects within thirty (30) days ofreceipt ofwritten demand to INVISTA from the United States and/or the Applicable Co-Plaintiffto dispute the accrual ofstipulatedpenalties in accordance with the provisions in Section XVI (Dispute Resolution) ofthis ConsentDecree. A demand from either the United States or an Applicable Co-Plaintiffshall be deemed a demand from both, but the United States and the Applicable Co-Plaintiffshall consult with each other priorto making a demand. A demand for the payment ofstipulated penalties will identify the particular violation(s) to which the stipulated penalty relates, the stipulated penalty amount that the United States or the Applicable Co-Plaintiffis demanding for each violation (as can be best estimated), the calculation method underlying the demand, and the grounds upon which the demand is based. After consultation with each other, the United States and the Applicable Co-Plaintiffmay, in their unreviewable discretion, waive paymentofall or any portion ofstipulated penalties that may accrue under this ConsentDecree. Stipulated penalties shall be paid to the United States and Applicable Co-Plaintiffin the following manner:

a. Stipulated penalties owed by INVISTA shall be! paid 50% to the United States and 50% to the Applicable Co-Plaintiff. Ifthere is no Applicable Co-Plaintiff, stipulated



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### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 53 of 69

penalties owed by INVISTA shall be paid 100% to the United States, Stipulated penalties owing to the United States ofunder $10,000 will be paid by check and madt;! payable to "U.S. Department ofJustice," referencing DOJCase Number 90-5-2-1-08892 and USAO File Number

______ , and delivered to the U.S. Attorney's Office. Stipulated penalties owing to the United States of$IO,OOO or more and stipulated penalties owing to an Applicable Co-Plaintiff will be paid 

### in the manner set forth in Section IX (Payment ofCivil Penalties) ofthisConsent Decree. 94. Should INVISTA dispute the United States' and/or an Applicable Co-Plaintiffs demand for all orpartofa stipulated penalty, it may avoid liability for failure to pay a stipulated penalty by placing the disputed amount demanded in a commercial e:;crow account pending resolution ofthe matter and by invoking the dispute resolution**provi~:ions** ofSection XV within the time provided in Paragraph 93 for the payment ofstipulated penalties. Ifthe dispute is thereafter resolved in INVISTA's favor, the escrowed amount plus accrued interest shall be returned to INVISTA: otherwise, the United States and the Applicable Co-Plaintiffshall be entitled to the amountthat was due by the Court, plustheinterestthat has accrued in the escrow account on such amount. Such payment shall be made according to the following schedule:

a. Ifthe dispute is resolved by agreement, or by Co decision ofPlaintiffs pursuantto Section XV (Dispute Resolution) ofthisConsent Decree that is not appealed to the Court, accrued stipulated penalties agreed or detennined to be owed, together with accrued interest, shall be paid within thirty (30) days ofthe effective date ofthe agmement or ofINVISTA's receipt ofEPA's decision; b. Ifthedispute is appealed to the Court and Plaintiffs prevail in whole or in part, INVISTA shall, within sixty (60) days ofreceipt ofthe Court's decision or order, pay all accrued stipulated penalties determined by the Courtto be owed, together with accrued interest, except as provided in Subparagraph 94.c.;

c. Ifthe Court's decision is appealed by either Party and the Plaintiffs prevail in whole or in part, INVISTA shall, within fifteen (15) days ofreceipt of the final appellate courtdecision, pay all**accru~d** stipulated penalties detennined to be owed, together with accrued interest. d. For purposes ofthis Paragraph, the accrued stipulated penalties agreed by the Parties, or detennined by the Plaintiffs through Dispute Resolution, to be owing may be less than the stipulated penalty amounts set forth in Paragraph 89. 95. Should INVISTA fail topay stipulated penalties in compliance with the terms of this Consent Decree, the Plaintiffs shall be entitled to collect interest on such penalties, as provided for in 28 U.S.c. § 1961.

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96. In cases where a violation ofthis Consent Decree is also a violation thatprovides a basis for potential recovery ofcivil penalties underthe Clean Air Act and its implementing federal, state, or local regulations, the United States and Applicable Co-Plaintiffwill elect between seeking stipulated penalties underthis ConsentDecree and commencing a new action for civil penalties under such laws. Notwithstanding the foregoing, the United States and the Applicable Co-Plaintiffs reserve the rightto pursue any other non-monetary remedies to which they are legally entitled. 

### XI. INVISTA'S**CERTIFICATION;~** 97. INVIST A certifies astrue to thebestofits knowledge and belief, after a reasonable inquiry, each ofthe factual assertions set forth in the following Subparagraphs 97.a through 97.h regarding the subject violations set forth in Appendix A attached to both this Decree and the United States' Complaint:

a. INVISTA discovered the subject violations through an environmental audit orthrough a compliance management system reflecting its due diligence; b. INVISTA either disclosed the subject violations to orentered into the audit agreement with EPAprior to discovering such violations through a monitoring or sampling requirement prescribed by statute, regulation, permit,judicial or administrative order, orconsent agreement;

C. INVIST A disclosed the subject violations promptly and in writing; d. INVIST A disclosed the subjectviolations to EPA prior to the commencementofa federal, state, orlocal inspection or investigation, notice ofa citizen suit, filing ofa complaint ofa third party, reporting of the subject violations to EPA (or other government agency) by a "whistle blower" employee, or imminent discovery by a regulatory agency;

e. INVIST A has corrected the subject violations in AppendixA and is, to the best ofits knowledge and belief, in full compliance with the Environmental Requirements with respect to the subject violations ofsuch Environmental Requirements as set forth in Appendix A at the Acquired Facilities that INVISTA currently owns; f. INVISTA has taken appropriate steps to prevent a recurrence ofthe subject violations; g. INVISTA has owned and operated the Acquiwd Facilities since April 30, 2004. Forthe period beginning April 30, 2004, through August 2004, INVISTA did not receive notice from the government ofany ofthe violations (orclosely related violations) identified in Appendices A, B, and

### C. Forthe purposes ofthis Subparagraph g., a violation is:

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l. any violation offederal, state, orlocal environmental law identified in ajudicial or administrative order, consent agreement or order, complaint, ornotice ofviolation, conviction orplea agreement; or ii. any actor omission for which the regulated entity has previously receivedpenalty mitigation from EPA or a state or local agency; and h. INVISTA cooperated as requested by EPA andprovided information necessary and requested by EPA to determine applicability ofthe Audit Policy. 

### XII. PERIODIC REPORTING 98. Within 180 days after each date established by Section IV ofthis Consent Decree for INVISTA to achieve and maintain a certain Emission Rate and/or Removal Efficiency at any Unit, exceptthose Units that are not required to install pollution control equipment pursuant to this Consent Decree, INVISTA shall conduct a performance test that demonstrates compliance with the Emission Rate and/orRemoval Efficiency required by this Consent Decree. Within forty-five (45) days ofeach such performance test, INVISTA shall submit the results ofthe performance test to EPA and the Permitting Authority atthe addresses specified in Section XVIII (Notices) ofthis ConsentDecree. 99. In addition to any other express reporting requirement in this ConsentDecree, INVISTA shall submit to EPA and the applicable Permitting Authority a semi-annual progress report beginning July 31, 2009 for the period between Entry Date and June 30, 2009, and continuing semi-annuallythereafter. 100. The progress report shall contain the following information:

a. a progress report on the implementation ofthe requirements ofSections IV

-VII above; b. all information relating to emission allowances and credits that INVTSTA claims to have generated in accordance with Paragraph 40 by compliance beyond the requirements ofthis Consent Decree;

c. a summary ofthe emissions data, including a separate identification ofany exceedance(s) ofConsent Decree emission limitations or standards for the Acquired Facilities set forth orestablished pursuantto Sections IV, VI, and VII ofthis Consent Decree for that time period; and d. a description ofany problems anticipated with respect to meeting the requirements ofSections IV

- VII ofthis Consent Decree.

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101. In any periodic progress report submitted pursuant to this Section, INVISTA may incorporate by reference information previously submitted under its Title V permitting requirements, provided thatINVIST A attaches the Title V permit report and provides a specific reference to the provisions ofthe Title V permitreport that are responsive to the information required in the periodic progress report. 102. Each INVISTA progress report shall be signed by INVISTA's Environment Health and Safety Director, or, in his or her absence, a higher ranking official, and shall contain the following certification: This information was prepared either by me or under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my evaluation, or the direction and my inquiry ofthe person(s) who managethe system or the person(s) directly responsible for gathering the information, I hereby**c,~rtifY** under penalty oflaw that, to the best ofmy knowledge and belief, this infOimation is true, accurate, and complete. I understand thatthere are significantpenalties for submitting false, inaccurate, or incomplete information to th{: United States. 

### XIII. REVIEWAND APPROVAL OF SUBMITTALS 103. INVISTA shall submit each plan, report, or other subnissionto EPAand the Applicable Co-Plaintiffwhenever such a document is required to be submitted for review or approval pursuant to this Consent Decree. EPA and the Applicable Co-Plaintiffmay approve the submittal ordecline to approve it and provide written comments explaining the basis for declining such approval as soon as reasonably practicable. Such Plalntiffs will endeavor to coordinate their comments into one document when explaining their basis for declining such approval. Within sixty (60) days ofreceiving written comments from EPA and the Applicable Co-Plaintiff, INVISTA shall either: (a) revise the submittal consistent with the written comments and provide the revised submittal for final approval to EPA and the Applicable Co-Plaintiff; or (b) submit the matter for dispute resolution, including the period ofinformal negotiations, under Section XVI (Dispute Resolution) ofthis Consent Decree. 104. Upon receipt ofPlaintiffs (or Plaintiffs') final approval ofthe submittal, or upon completion ofthe submittal pursuantto dispute resolution, INVIST A shall implement the approved submittal in accordance with the schedule specified therein. 

### XIV. FORCEMAJEURE 105. For purposes ofthis Consent Decree, a "Force Majeure Event" shall mean an eventthathas been or will be caused by circumstances beyond the control ofINVISTA, its contractors, or any entity controlled by INVISTA that delays compliance with anyprovision of this ConsentDecree or causes a violation ofany provision ofthis Co1sent Decreedespite INVIST A's best efforts to fulfill the obligation. "Best efforts to fulfill the obligation" include 52

### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 57 of 69

using best efforts to anticipate any potential Force Majeure Eventand to address the effects of any such event (a) as it is occurring and (b) after 

### it has occurred, suchthatthe delay orviolation is minimized. "Force Majeure"does not include INVISTA's financial inability to perform any obligation under this Consent Decree. 106. Notice ofForce Majeure Events. Ifany event occurs or fails to occurthat may delay compliance with orcause a violation ofany obligation underthis ConsentDecree, as to which INVISTA intends to assert a claim ofForce Majeure, INVISTA shall notifY the United States and Permitting Authority in writing as soon as practicable, but in no event laterthan twenty (20) businessdays following the date INVISTAknew or should have known ofthe event. In this notice, INVISTA shall reference this Paragraph 106 ofthis Consent Decree and describe the anticipated length oftime thatthe delay orviolation may persist, the cause orcauses ofthe delay or violation, all measures taken orto betaken by INVISTA to preventor minimize the delay orviolation, the schedule by which INVISTA proposes to implementthose measures, and INVISTA's rationale for attributing a delay orviolation to a ForceMajeure Event. INVISTA shall adopt all reasonable measures to avoid or minimize such delays or violations. INVISTA shall be deemed to know ofany circumstance which INVISTA, its contractors, or any entitycontrolled by INVISTA knew. 107. Failure to GiveNotice. IfINVISTA fails to materially comply with the notice requirements ofthis Section, the Plaintiffs may void INVISTA's claim for ForceMajeure as to the specific event for which INVISTA has failed to comply with such notice requirement. 108. Plaintiffs'Response. The United States, after an opportunity for consultation with the Applicable Co-Plaintiff, shall notifY INVISTA in writing regarding INVISTA'sclaim of ForceMajeure withintwenty (20) business days ofreceipt ofthe notice provided under Paragraph 105. Ifthe Plaintiffs agree that a delay in or an impedimellt to performance has been or will becausedby a Force Majeure Event, the Parties shall stipulateto an extension of deadline(s) for performance ofthe affected compliance requirement(;;) by a period notto exceed the delay actually caused by the event. In such circumstances, an appropriate modification shall be made pursuantto Section XXII (Modification) ofthis Consent Decree. 109. Disagreement. Ifthe Plaintiffs do not accept INVISTA'sclaim ofForce Majeure, or ifthe Parties cannot agree on the length ofthe delay actually caus<::d by the Force Majeure Event, the matter shall be resolved in accordance with Section XV (Dispute Res<,llution) ofthis ConsentDecree. 110. Burden ofProof. Inanydispute regarding Force Maje:ure, INVISTA shall bear the burden ofproving that any delay in perfonnance orany other violation ofany requirement of this Consent Decree was caused by orwill be caused by a Force Maje:ure Event. INVISTA shall also bearthe burden ofproving that D'JVISTA materially complied with the notice requirements ofthis Section and the burden ofprovingthe anticipated duration and extent ofany delay(s) attributable to a Force Majeure Event. An extension ofone compliance date based on a


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particular event may, but does not necessarily, result in an extension ofa subsequentcompliance date. Ill. EventsExcluded. Unanticipated or increased costs or expenses associated with the performance ofINVISTA's obligations under this ConsentDecree shall not constitute a Force Majeure Event. 112. Potential Force Majeure Events. The Parties agree that, depending upon the circumstances related to an event and INVISTA's response to such circumstances, the kinds of events listed below are among those thatcould qualifY as force majeure within the meaning of this Section: construction, labor, orequipmentdelays; Malfunction ofa Unit or emission control device; unanticipated fuel supply orpollution control reagent/catalyst delivery interruptions; acts ofGod; and acts ofwar orterrorism. Depending upon the circumstccllces and Defendants' response to such circumstances, failure ofa permitting authority to issue a necessary permit in a timely fashion may constitute force majeure where the failure ofthe permitting authority to act is beyondthe control oflNVIST A and INVISTA has taken all steps available to it to obtain the necessary permit, including, but not limited to: SUbmitting a complete permit application; responding to requests for additional information by the permitting authority in a timely fashion; and accepting lawful permitterms and conditions. As part ofthe resolution ofany matter submitted to this Court under Section XV (Dispute Resolution) ofthis Consent Decree regarding a claim ofForce Majeure, the Parties by agreement, or this Court by order, may in appropriate circumstances extend or modifY the schedule for completion ofworkunder this Consent Decree to account for the delay in the workthatoecurred as a result ofany delay or impediment to performance agreed to by the United States and the Applicable Co-Plaintiffand approved by the Court. INVISTA shall be liable for stipulated penalties for its failure thereafter to complete the work in accordance with the extended ormodified schedule. XV. DISPUTE RESOLUTION 113. In the eventthat the United States and the applicable Permitting Authority make differing determinations or take differing actions that affect INVISTA's rights or obligations under this ConsentDecree, the final decision ofthe United States shall be binding. 114. The dispute resolution procedure required herein shall be invoked by one Party giving written notice to the other Parties advising ofa dispute pursuantto this Section. The notice shall describe the nature ofthe dispute and shall state the noticing Party's position with regard to such dispute. The Party receiving such a notice shall ackncwledge receipt ofthe notice, and the Parties in dispute shallexpeditiously schedule a meeting to discuss the dispute informally not later than fourteen (14) days following receipt ofsuch notice. 115. Disputes submitted to dispute resolution under this Se:.:tion shall, in the first instance, bethe subject ofinformal negotiations amongthe disputing Parties. Such period of informal negotiations shall not extend beyondthirty (30) calendar days from the date ofthe first meeting among the disputing Parties' representatives unless they agree in writing to shorten or 54

### Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 59 of 69

extend this period. During the informal negotiations period, the disputing Parties may also submittheirdispute to a mutually agreed-upon non-binding alternative dispute resolution (ADR) forum ifthe Parties agree thatthe ADR activities can be completed within the 30-day informal negotiations period (or such longer period as the Parties may agree to in writing). 116. Ifthe disputing Parties are unableto reach agreement during the informal negotiation period, the Plaintiffs shall provide INVISTA with a written summary oftheir position regardingthedispute. The written position provided by the: Plaintiffs shall be considered binding unless, within forty-five (45) calendar days then:after, INVISTA seeks judicial resolution ofthe disputeby filing a petition with this Court. ThePlaintiffs may respond to the petition within forty-five (45) calendar days offiling. 117. Where the nature ofthe dispute is such that a more timely resolution ofthe issue is required, the time periods set out in this Section may be shortened by the Courtupon motion ofone ofthe Parties to the dispute. 118. As part ofthe resolution ofany dispute underthis Seetion, in appropriate circumstances the disputing Parties may agree, orthis Court may order, an extension or modification ofthe schedule for the completion ofthe activities required underthis Consent Decreeto account for the delay that occurred as a result ofdispute rt:solution. INVISTA shall be liable for stipulated penalties for its failure thereafter to completethe work in accordance with the extended or modified schedule, provided that INVISTA shall not be precluded from asserting that a Force Majeure Eventhas caused ormay cause a delay 

### in complying with the extended or modified schedule. 119. The Court shall decide all disputes pursuantto applicable principles oflaw for resolving such disputes. In their initial filings with the Courtunder Paragraph 116, the disputing Parties shall state their respective positions as to the applicable standard oflaw for resolving the particular dispute. 120. The Court shall not draw any inferences nor establish any presumptions adverse to any disputing Party as a result ofinvocation ofthis Section or the disputing Parties' inability to reach agreement. 

### XVI. PERMITS 121. Unless expressly stated otherwise in this Consent Decree, in any instance where otherwise applicable law or this Consent Decree requires INVISTA t) secure a permitto authorize construction oroperation ofany device, including all preconstruction, construction, and operating permits required under state or local law, INVISTA shall make such application in a timely manner. The Plaintiffs will use theirbest efforts to expeditiously review all permit applications submitted by INVISTA in order to meet the requirements ofthis Consent Decree. Nothing in this Consent Decree shall prevent INVISTA from qualifying for South Carolina's

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expedited pennitting program provided that INVISTA meets all other requirements ofthat program. 122. When pennits are required as described in Paragraph 121, INVISTA shall complete and submit applications for such pennits to the appropriate authorities to allow sufficient time for all legally required processing and review ofthe pennitrequest, including requests for additional information bythe pennitting authorities. Any failure by INVISTA to submit a timely pennit application for any Unit shall bar any use by lNVISTA ofSection XIV (ForceMajeure) ofthis Consent Decree, where a Force Majeure claim is based on pennitting delays. 123. Notwithstanding the reference to Title V or other federally enforceable pennits in this Consent Decree, the enforcement ofsuch pennits shall be in accordance with their own tenns and the CleanAir Act. The Title V orother federally enforceable pennits shall not be enforceable under.this Consent Decree, although any tenn or limit established by or under this Consent Decree shall be enforceable under this Consent Decree regardless ofwhether suchterm has or will become part ofa Title V orother federally enforceable pennit subjectto the terms of Section XXVII (Tennination ofConsentDecree) ofthis Consent Decree. 124. Obtaining Permit Limits for Consent Decree Emission Limits and Standards That Are Effective Upon Date of Entry. Within 180 days after the Entry Date for the Camden, Chattanooga, and Seaford Facilities, and, to the extent applicable, within 270 days aftertheEntry Date for the Victoria and Orange Facilities, INVISTA shall amend any applicable Title V permit application, or apply for amendments ofits Title V permits, to include all Unit-specific perfonnance, operational, maintenance, and control technology requirements established by this Consent Decree and effective upon the Date ofEntry including, but not limited to, emission rates, removal efficiencies, fuel limitations, and tonnage limitations. 125. Obtaining Permit Limits for Consent Decree Emission Limits and Standards That Become EffectiveAfterDate of Entry. Within one year from the commencement ofoperation of each emission control technology to be installed, upgraded, or operated on a Unit under this Consent Decree, INVISTA shall apply to include the following requirements and limitations enumerated in this ConsentDecree in either a federally enforceable operating pennit issued underthe applicable SIP or amendments to the applicable SIP: (a) any applicable 30-Day Rolling Average Emission Rate, 24-Hour Rolling Average Emission Rate, Removal Efficiency, or 30- Day or 12-Month Rolling Average Emissions Rate; (b) any applicable tonnage limitations; and (c) any applicable fuel limitations set forth in this Consent Decree. 126. For each Unit, INVISTA shall provide EPA and the Permitting Authority with a copy ofeach application for a permit to address or comply with any provision ofthis Consent Decree, as well as a copy ofany pennit proposed as a result ofsuch c;cpplication, to allow for timely participation in any public comment opportunity.

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127. IflNVISTA sells ortransfers to an entity unrelated to INVISTA ("Third Party Purchaser") part or all ofits Ownership Interest in an Unit orFacility covered under this Consent Decree, INVISTA shall comply with therequirements ofParagrapi:ts 135-138 with regard to that Unit prior to any such sale ortransfer unless, following any such sale or transfer, INVIST A remains the holder ofthe Title V or other federally enforceable pennitfor such Unit orFacility. XVII. INFORMATION COLLECTION AND RETENTION 128. Any authorized representative ofthe United States orPermitting Agency, including their attorneys, contractors, and consultants, upon presentation ofcredentials, shall have a right ofentry upon the premises ofINVISTA's Acquired Facilities at any reasonable time for the purpose of:

a. monitoring the progress ofactivities required under this ConsentDecree; b. verifYing any data or information submitted to the Ulited States in accordance with the terms ofthis Consent Decree;

c. obtaining samples and, upon request, splits ofany samples taken by INVISTA or its representatives, contractors, or consultants; and d. assessing nWISTA's compliance with this Consent Decree. 129. INVISTA shall retain, and instruct its contractors and agents to preserve all nonidentical copies ofall records and documents (including records and documents in electronic form) now in its or its contractors' or agents' possession or control, ,and that directly relate to INVISTA's performance ofits obligations under this Consent Decree until December 31, 2018. This record retention requirement shall apply regardless ofany corp·)rate document retention policy to the contrary. 130. All information and documents submitted by INVISTA pursuant to this Consent Decree shall be subject to anyrequests under applicable law providing public disclosure of documents unless (a) the information and documents are subject to \.egal privileges or protection or (b) INVISTA claims and substantiates in accordance with 40 C.F.R. Part 2 or corresponding applicable state or local laws that the information and documents contain confidential business information. 131. Nothing in this Consent Decree shall limit the authority ofthe EPA to conduct tests and inspections at INVISTA's Acquired Facilities under Section 114 ofthe Clean AirAct, 42 U.S.c. § 7414, orany other applicable federal, state or local laws, regulations or permits.

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XVIII. NOTICES 132. Unless otherwiseprovided herein, whenever reports, notification, submissions, or communications are required bythis Consent Decree, they shall be made in writing and addressed as follows: As to the United States: Chief, Environmental Enforcement Section Environment and Natural Resources Division U.S. Department ofJustice P.O. Box7611, BenFranklin Station Washington, D.C. 20044-7611 DJ# 90-5-2-1-08085 As to EPA: Director, Special Litigation and Projects Division Office ofEnforcement and Compliance Assurance· U.S. Environmental Protection Agency Ariel Rios Building, Mail Code 2248-A 1200 Pennsylvania Ave., N.W. Washington, D.C. 20460 with a hard copyto Director, Air Enforcement Division Office ofEnforcement and Compliance Assurance U.S. Environmental Protection Agency Ariel Rios Building, Mail Code 2242-A 1200 Pennsylvania Avenue, N.W. Washington, DC 20460 and an electronic copyto burke.shaun(ii(epa.gov milton.philip(ii(epa.gov EPA Region 3: Chief, Enforcement and Compliance Branch Office ofEnforcement, Compliance & Environmental Justice Mail Code: 3ECI0 EPA Region 3 1650 Arch Street 58

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Philadelphia, PA 19103-2029 EPA Region 4: Multimedia Technical Authority U.S. EPA Region 4 61 Forsyth Street, S.W. Atlanta, Georgia 30303-8960 EPA Region 6: Associate Director, Air, Toxies, and Inspection Coordination Branch (6 EN-A) U.S. EPA Region 6 1445 Ross Avenue Dallas, Texas 75202-2733 As to the State ofDelaware: Valerie M. Satterfield Deputy Attorney General Delaware Department ofJustice 102 W. Water Street, 3rd Floor Dover, DE 19904 Ali Mirzakhalili, Administrator Air Quality Management Department ofNatural Resources & Environmental Control 156 S. State Street Dover, DE 19901 Joanna French, Program Manager Air Quality Management Department ofNatural Resources & Environmental Control 156 S. State Street Dover, DE 1990 I As to the South Carolina Department ofHealth and Environmental Control: Director, Air Compliance Management Division Bureau ofAir Quality SC Department ofHealth and Environmental Control 2600 

### Bull Street Columbia, SC 29201 59

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As to the Chattanooga-Hamilton County Air Pollution Control Board: Robert H. Colby Director Chattanooga-Hamilton County AirPollution Control Bureau 6125 Preservation Drive Chattanooga, Tennessee 37416-3638 As to INVISTA: General Counsel INVISTA, S.a r.l. 4123 East 37th StreetNorth Wichita KS 67220 Director, EH&S INVISTA, S.ar.l. 4123 East 37th Street North Wichita KS 67220 l33. All notifications, communications or submissions made pursuantto this Section shall be sent either by: (a) overnight mail ordelivery service; (b) certified orregistered mail, return receipt requested; or(c) electronic transmission, unless the recipient is not able to review the transmission in electronic form. All notifications, communications and transmissions (a) sent by overnight, certified or registered mail shall be deemed submitted on the date they are postmarked, or (b) sent by overnight delivery service shall be deemed submitted on the date they are delivered to the delivery service. Ifthe date for submission ofa report, notification, submission, orothercommunication falls on a Saturday, Sunday, or legal holiday, the report, notification, submission, or othercommunication will be deemed timely ifit is submitted by the next business day. All notifications, communications, and submissions made by electronic means shall be electronically signed and certified, and shall be deemed submitted on the date that INVISTA receives written acknowledgment ofreceipt ofsuch transnission. 134. Any Party may change either the notice recipient or the address for providing notices to it by serving the other Parties with a notice setting forth such new notice recipient or address. 

### XIX. SALES OR

### TRANSFERS OFOWNERSHIP INTERESTS l35. IfINVISTAproposes to sell or transfer an Ownership Interest to an entity not affiliated with INVISTA ("Third Party Purchaser"), it shall advise**th,~** Third Party Purchaser in writing ofthe existence ofthisConsent Decree prior to such sale ortransfer, and shall send a copy ofsuch written notification to the Plaintiffs pursuant to Section XVIII (Notices) ofthis ConsentDecree at least thirty (30) days before such proposed sale or transfer. 60

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136. INVISTA shall condition any transfer, in whole or in part, ofownership of, operation of, or other interest in any OwnershipInterest to a Third P,lrty Purchaser, upon the execution by the transferee ofa modification to the ConsentDecree, which modification shall make the terms and conditions ofthe Consent Decree that apply to the Ownership Interest applicable to the Third Party Purchaser. In the event ofsuch transfer, INVISTA shall notify the Plaintiffs. Byno earlier than thirty (30) days after such notice, INV]STA may file a motion to modify the Consent Decree to make the terms and conditions ofthe ConsentDecree applicable to the transferee. INVISTA shall be released from the obligations and liabilities ofthis Consent Decree applicable to the transferred Ownership Interest unless one ofthe Plaintiffs opposes the motion and the Court finds that the Third Party Purchaser does not have either the technical or financial ability to assume the obligations and liabilities ofthe Consent Decree. I37. This ConsentDecree shall not be construed to impede the transfer 0 fany Ownership Interests between INVISTA and any Third Party Purchaseras long the requirements ofthis Consent Decree are met. This ConsentDecree shall not be construed to prohibit a contractual allocation as between INVISTA and any Third PartyP:lrchaser ofOwnership Interests ofthe burdens ofcompliance with this Decree, provided that both INVISTA and such Third Party Purchaser meet the requirements ofthis Section. 138. Notwithstanding the foregoing, however, INVISTA may not assign, and may not be released from, any obligation under this Consent Decree that is not specific to the purchased or transferred OwnershipInterests, including the obligations set forth in Section XI (INVISTA's Certifications) and Section IX (Payment ofCivil Penalties). INVISTA may propose and the Plaintiffs may agree to restrictthe scope of jointand severalliabiIity ofany purchaser or transferee for any obligations ofthis ConsentDecreethat are not specific to the transferred or purchased Ownership Interests, to the extent such obligations may be adequately separated in an enforceable manner. 

### XX. EFFECTIVEDATE 139. The effective date ofthis Consent Decree shall be the Date ofEntry. 

### XXI. RETENTION OFJURISDICTION 140. ContinuingJurisdiction. TheCourt shall retainjurisdiction ofthiscase after entry ofthis Consent Decreeto enforce compliance with the terms and conditions ofthis Consent Decree and to take any action necessary or appropriate for its interpretation, construction, execution, modification, oradjudication ofdisputes. During the teml ofthis Consent Decree, any Party to this Consent Decree may apply to the Court for any relidnecessary to construe or effectuate this Consent Decree.

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XXII. MODIFICATION 141. Modifications. This Consent Decree contains the entire agreement ofthe Parties and will not be modified by any prior oral orwritten agreement, representation, or understanding. Prior drafts ofthe Consent Decree will not be used in any action involving the interpretation orenforcement oftheConsent Decree. Non-material modifications to this Consent Decree will be effective when signed in writing by EPA and fNVISTA. The United States will file non-material modifications with the Court on a periodic basis. For purposes ofthis Paragraph, non-material modifications include but are not limited to modifications to the frequency ofreporting obligations and modifications to schedules that do not extend the date for compliance with emissions limitations following the installation ofcontrol equipment orthe completion ofa catalyst additive program, provided that such changes are agreed upon in writing betweenEPA and INVISTA. Material modifications to this ConsentDecree will be in writing, signed by EPA, the Applicable Co-Plaintiff, and INVISTA, and will be effective upon approval by the Court. XXIII. PUBLIC COMMENT 142. The Parties agree and acknowledge that final approval by the United States and entry ofthis ConsentDecree is subjectto the procedures of28 C.F.R. § 50.7, which provides for notice ofthe lodging ofthis Consent Decree in the Federal Register, an opportunity for public comment, and the right ofthe United Statesto withdraw or withhold consent ifthe comments disclose facts orconsiderations which indicate that the ConsentDecree is inappropriate, improper or inadequate. fNVISTA shall not oppose entry ofthis Consent Decree by this Court or challenge any provision ofthis Consent Decree unless the United States has notified INVISTA, in writing, thatthe United States no longer supports entry ofthe Consent Decree. If the United States withdraws or withholds consent, any other Plaintiffmay also withdraw or withhold consent. XXIV. GENERALPROVISIONS 143. This Consent Decree shall be considered an enforceablejudgment for purposes of post-judgment collection in accordance with Rule 69 ofthe Federal Rules ofCivil Procedure, and other applicable federal authority. 144. This Consent Decree constitutes the final, complete and exclusive agreement and understanding among the Parties with respect to the settlement embodied in this Consent Decree, and supersedes all prior agreements and understandings, whether oral or written, concerning the settlement embodied herein except for the Final Audit Report as referenced in Appendices A, B, and C to this Decree. No other document, nor any representation, inducement, agreement, understanding or promise, constitutes any part ofthis Decree or the settlement it represents, nor shall it be used in construing the terms ofthis Decree.



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145. This Consent Decree does not pertain to any matters otherthan those expressly specified herein. Nothing in this Consent Decree is intended or shall be construed as a waiver by the United States ofits right to institute a civil or criminal action against INVISTA for any past, present or future civil or criminal violations ofany statutes, rules orregulations administered or enforceable by the United States, other than those civil violations aileged in the Complaint and any other claims arising from the audit findings listed in Appendices A-C. 146. This Consent Decree in no way affects or relieves INVISTA ofits responsibility to comply with all applicable federal, state and local laws, regulations and permits. Defendant agrees that it will not assert in any federal, state or local criminal, civil or administrative proceeding, hearing or other permitting, licensing or procedural mailer, that its compliance with this Consent Decree is a defense in law orequity to any civil or criminal action commenced by the Plaintiffs pursuantto any such federal, state or local law, regula1:ion or permit, except as expressly provided in this Consent Decree. 147. The United States retains the right to seek to enforcethe terms ofthis Consent Decree, and to take any action authorized by federal, state, or local law not inconsistent with the termsofthis ConsentDecree to achieve or maintain INVIST A's compliance with the terms and conditions ofthis Consent Decree. 148. Effect ofShutdown. The permanent Shutdown ofa Unit and the surrender ofall air permits or airpermit conditions for that Unit will be deemed to satisfY all requirements of Sections IV, V, VI, and VII ofthis Consent Decree applicable only to that Unit on and after the later of: (i) the date ofthe Shutdown ofthe Unit; or (ii) the date ofthe surrender ofall air permits/permit conditions. The permanent Shutdown ofa Facility 

### and the surrender ofall air permits for that Facility will be deemed to satisfY all requirements ofSections IV, V, VI, and VII ofthis Consent Decree applicable to that Facility on and after the later of: (i) the date ofthe Shutdown ofthe Facility; or (ii) the date ofthe surrender ofall air permits. This Paragraph does not affect INVISTA's requirements for the Facility where a Shutdown Unit is located (including INVISTA's obligation to meet the 12-month rolling averages) unles:; each applicable Unit at the Facility is permanently Shutdown. 

### XXV. COSTS OFSUIT 149. Each Party in this action shall bear its own costs, including attorney's fees. 

### XXVI. ENTRY OF CONSENTDECREE 150. INVISTA consents to the entry ofthis Consent Decre·e unless the United States notifies INVISTA, in writing, that the United States no longer suppo'ts the entry ofthe Consent Decree.151. Iffor any reason this Court should decline to approve this Consent Decree in the form presented orthe United States no longer supports entry ofthe Consent Decree, this Consent 

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Decree is voidable atthe sole discretion ofany Party and the terms ofthis ConsentDecree may not be used as evidence in any litigation between the Parties. 

### XXVII. TERMINATION OFCONSENT DECREE 152. This Consent Decree shall be subjectto termination upon motion by the United States orINVISTA under the conditions identified in Subparagraphs 152.a-d. INVISTA may seektermination ofany provision ofthe Consent Decree at anyone ofthe Acquired Facilities upon completion and satisfaction atthe relevantAcquired Facility(ies) ofall ofthe following requirements ofthis Paragraph I52.a-d as applicable to the Acquired Facility(ies):

a. compliance with all provisions contained in this Consent Decree, including installation ofemission control technology; b. payment ofall penalties and other monetary obligations due under the terms of the ConsentDecree; no penalties or other monetary obligations due hereunder can be outstanding or owed to the United States orCo-Plaintiffs;

c. application for and receipt ofTitle Vpermits incorporating the surviving emission limits and standards established under Sections IV, VI:, and VII; and d. operation for at least one year ofeach Unit incompliance with the emission limits and other requirements established herein, and certification ofsuch compliance for each Unit within the first periodic report followin

## e ;the conclusion ofthe compliance period. 153. At such time as INVISTA believes that it has satisfied the requirements for termination set forth in Paragraph 152, INVISTA shall certify such c()mpliance and completion to the United States and the Applicable Co-Plaintiffin writing. The report shall contain the following statement, signed by a responsible official ofINVISTA: "Tothe best ofmy knowledge, after appropriate investigation, IcertifY thatthe information contained in or accompanying this submission is true, accurate and complete. I am aware thatthere are penalties for SUbmitting false information, including the possibility offine and imprisonment for knowing violations." Unless, within 120 days ofreceipt ofINVISTA's certification under this Paragraph, eitherthe United States orthe Applicable Co-Plaintiffobjects in writlng with specific reasons, the Court may, upon motion by INVISTA, order that this Consent Dt:cree be terminated. If eitherthe United States orthe Applicable Co-Plaintiffobjects to the certification by INVISTA then the matter shall be submitted to the Court tor resolution under Section XV (Dispute Resolution) ofthis Consent Decree. 154. The Resolution ofClaims provisions set forth in Section VIII shall survive termination ofthe Consent Decree.



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XXVIII. SIGNATORIES/SERVICE 155. Each ofthe undersigned representatives ofthePartiescertitythat he or she is authorized to enter into terms and conditions ofthis Consent Decret: andto execute and bind legally such Party to this document. This ConsentDecree may be executed in one or more counterparts, but in such event, each counterpart shall constitute an original and all such counterparts shall together constitute one instrument. 

### XXIX. FINALJUDGMENT 156. Upon approval and entry ofthis ConsentDecree by the Court, this Consent Decree shall constitute a finaljUdgment in the above-captioned matterbetween the Plaintiffs and INVISTA. 

# .,..4 so ORDERED, THIS

### ~ DAY OF ,2009.

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