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

[N THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF DELAWARE 

UNITED STATES OF AMERICA, 

STA TE OF DELA WARE DEPARTMENT OF 

NATURAL RESOURCES & 

ENVIRONMENTAL CONTROL, 

SOUTH CAROLINA 

DEPARTMENT OF HEALTH & 

ENVIRONMENTAL CONTROL and the 

CRA TTANOOGA-HAMIL TON COUNTY 

AIR POLLUTION CONTROL BOARD 

Plaintiffs, 

v. 

INVISTA S.ft r.L 

Defendant. 

) 

) 

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) 

) 

) 

) 

) 

) 

) 

) 

) 

) Civil Action No. ___ _ 

) 

) Judge 

) 

) 

) 

CONSENT DECREE 
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 AND INTERIM CONTROLS .................................. ll 

B. NOx EMISSIONS CONTROLS AND LIMITS .................................................... 12 

C. S02 EMISSION REDUCTIONS AND CONTROLS ........................................... 23 

D. PARTICULATE MATTER EMISSIONS LIMIT ................................................. 25 

E. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED 

CONTROLS .......................................................................................................... 25 

V. NSPS FLARING DEVICES .............................................................................................. 27 

VI. BENZENE WASTE NESHAP PROGRAM ENHANCEMENTS .............. ; ..................... 27 

VII. LEAK DETECTION AND REPAIR PROGRAM ENHANCEMENTS .......................... .35 

VIII. RESOLUTION OF CLAIMS ........................................................................................... .43 

IX. PAYMENT OF CIVIL PENAL TIES .................................................................... ; .......... .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 OR TRANSFERS OF OWNERSHIP INTERESTS ............................................. 60 

XX. EFFECTIVE DATE ........................................................................................................... 61 

XXI. RETENTION OF JURISDICTION ................................................................................... 61 

XXII. MODIFICATION .............................................................................................................. 62 

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

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

XXV. COSTS OF SUIT ............................................................................................................... 63 

XXVI. ENTRY OF CONSENT DECREE .................................................................... , ............... 63 

XXVII. TERMINATION OF CONSENT DECREE ................................................................... 64 

XXVIII. SIGNATORIES/SERVICE ............................................................................................ 65 

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

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Appendix A: 

Appendix B: 

Appendix C: 

Appendix D: 

TABLE OF APPENDICES 

List of Violations Resolved From Tabs 3-16 ofINVISTA's Corporate Audit. 

Agreement Final Report General Audit Findings 

List of Violations Resolved From Tabs 3-16 ofINVIST A's Corporate Audit 

Agreement Final Report PSDINNSR and NSPS Audit Findings 

List of Violations 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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CONSENT DECREE 

Whereas, this Consent Decree is made by and between the United States of America, at 

the request and on behalf of the Administrator of the United States Environmental Protection 

Agency ("EPA"), the State of Delaware Department of Natural Resources and Environmental 

Control, the South Carolina Department of Health & Environmental Control, the ChattanoogaHamilton County Air Pollution Control Board (collectively "Plaintiffs") and INVISTA S.ft r.I 

("INVIST A"). 

Whereas, Plaintiffs, by and through their undersigned counsel, have simultaneously filed 

Complaints and lodged this Consent Decree against INVISTA. 

Whereas, INVIST A is a privately-owned integrated fibers and polymers company 

registered as a foreign limited liability company in the State of Delaware and headquartered in 

Wichita, Kansas. 

Whereas, on April 30, 2004 (the "Closing Date"), E.L du Pont de Nemours and Company 

and INVISTA finalized the sale of the DuPont Textiles & 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, V A; Orange, TX; Seaford, DE; Victoria, TX; and 

Waynesboro, VA ("Acquired Facilities"). 

Whereas, EPA recognizes the critical role of environmental auditing in protecting human 

health and the environment by identifYing, correcting, and ultimately preventing violations of 

environmental laws, particularly by responsible corporate citizens and new owners. 

Whereas, as a result of the identification and disclosure of celtain pre-Closing Date 

environmental noncompliance existing at some ofthe Acquired Facilities, INVISTA and EPA in 

July and August 2004 agreed that, pursuant to EPA's Policy on Incentives for Self-Policing: 

Discovery, Disclosure, Correction, and Prevention of Violations, 65 Fed. Reg. 19618 (Apr. 11, 

2000) ("EPA's Audit Policy"), INVISTA would continue implementation of its Compliance 

Assurance Management System ("CAMS") and conduct audits at the Acquired Facilities 

(hereinafter referred to as the "Corporate Audit Agreement"). In ord';r to avail itself of the 

benefits afforded under EPA's Audit Policy, INvrSTA entered into the Corporate Audit 

Agreement and was required thereunder to complete environmental compliance audits in 

addition to continued implementation of its CAMS at the Acquired Facilities covering the 

following statutes and implementing regulations 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. §§ 1100 I to 11050; the Clean Water Act (CW A), 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) of the Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA), 42 U.S.C. § 9603(a); the Safe Drinking Water Act (SDWA), 42 U.S.c. §§ 3001' to 

300j-26; and the Clean Air Act (CAA), 42 U.S.c. §§ 7401 to 7671q. 

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Whereas, over the course of33 months, INVISTA conducted 23 comprehensive and 22 

focused environmental audits examining the pre- and post-Closing Date compliance of the 

Acquired Facilities with the Environmental Requirements. During and upon completion of those 

audits, consistent with EPA's Audit Policy, INVISTA timely 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 pursuant to the Corporate Audit 

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

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

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

technical correspondence regarding the findings of violations and ccnsideration of appropriate 

remedies, supplemental information requests, and a review of infomlation and site-specific data 

submitted by INVIST A in response to Plaintiffs' requests. After that review the Plaintiffs 

determined, based on the foregoing, that violations of Environmental Requirements had occurred 

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

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

of Environmental Requirements have taken place at INVIST A's Acquired Facilities as set forth 

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

have been corrected. 

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

potential corrective actions, INVIST A and EPA have agreed to resol ve RCRA and C W A 

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

LaPorte, Orange, and Victoria facilities in a future agreement, if necessary, with the 

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

coverage under EPA's Audit Policy. 

Whereas, based on the representations by INVIST A, EPA ha~; determined that the 

violations as set forth in Appendices A, B, and C have met the conditions of EPA's Audit Policy 

and are appropriate for resolution in accordance with the Policy. 

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

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

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

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

state, and/or local regulations have been andlor are continuing to take place at certain of 

INVISTA's Acquired Facilities, including: the Nonattainment New Source Review andlor 

Prevention of Significant 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 of Environmental 

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

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providing for the performance of injunctive relief and payment of civil penalties for the disclosed 

violations,as provided herein. 

Whereas, the Plaintiffs and INVIST A agree that the amount of civil penalty set forth 

herein was negotiated in recognition of INVISTA's audit of the Acquired Facilities and 

agreement to 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 of this 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 of the Environmental Requirements. 

Whereas, INVISTA consents to the simultaneous filing of the complaints and lodging of 

this Consent Decree against INVISTA, without the admission of liability or any adjudication on 

any issue of fact or law. 

THEREFORE, upon the consent and agreement of the Parties to this Consent Decree by 

their attorneys and/or authorized officials, the Parties agree as follows: 

I. JURISDICTION AND VENUE 

1. This Court shall have jurisdiction over this matter pursuant to 28 U.S.c. §§ 157, 

1331, 1334, 1345, 1355 and 1367; Sections 113, 167 and 304(b)(I)(B) of the CAA, as amended, 

42 U.S.c. §§ 7413, 7477 and 7604(b)(I)(B); Sections 309 and 311(b)(7)(E) of the CWA, 33 

U.s.c. §§ 1319, 1321(b)(7)(E); Section 325(c)(4) ofEPCRA, 42 U.S.c. § 11045; Section 109 of 

CERCLA, 42 U.S.C. § 9609; Sections 16 and 27(a) ofFIFRA, 7 U.S.c. §§ 136n and 136w-2(a); 

Sections 1414(b) and 1423(b) of the SDWA, 42 U.S.C. §§ 300g-3(b), 300h-2(b); and Sections 

3008(a) and 9006(e) ofRCRA, 42 U.s.c. §§ 6928(a), 6991(e). 

2. Venue is proper in this judicial 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 of this Consent Decree and the underlying Complaints, 

INVISTA waives all objections and defenses that it may have to the Court's jurisdiction over this 

action, to the Court's jurisdiction over INVISTA, and to venue in thi~ District. For purposes of 

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

purposes of entry and enforcement of this Consent Decree, INVIST A waives any defense or 

objection based on standing. This Consent Decree shall not create any rights in or grant any 

cause of action to any party other than the Plaintiffs and INVIST A. This Consent Decree does 

not limit or affect the rights of INVIST A or of any of the Plaintiffs against third parties who are 

not a party to this Consent Decree, nor shall this Consent Decree be cDnstrued to create rights in, 

or grant any cause of action to, any third parties not a party to this Consent Decree. Except as 

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provided in Section XXIII (Public Comment) ofthis Consent Decree, the Parties consent to entry 

of this Consent Decree. 

II. PARTIES BOUND 

4. The provisions ofthis Consent Decree shall apply to the Acquired Facilities. This 

Consent Decree is binding on the United States, the State of Delaware Department of Natural 

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

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

INVISTA and INVISTA's successors, transferees, grantees and assigns until the Consent Decree 

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

of an Acquired Facility shall relieve INVISTA of its obligation to ensure that the terms of the 

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

5. INVISTA shall provide a copy of the applicable provisions of this Consent 

Decree to all vendors, suppliers, consultants, contractors, agents and any other company or other 

organization performing any of the work described under Sections IV (NNSRlPSD), V (NSPS), 

VI (BWON), or VII (LDAR) ofthis Consent Decree. Notwithstandhg any retention of 

contractors, subcontractors, or agents to perform any work required under this Consent Decree, 

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

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

shall not assert as a defense the failure of its officers, directors, employees, servants, agents or 

contractors to take actions necessary to 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 gi ven to those terms in the CW A, EPCRA, CAA, FIFRA, C ERCLA, and RCRA and 

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

Consent Decree, the following definitions shall apply: 

A. A "24-Hour Rolling Average Emission Rate" shall be expressed as 

IbfMMBTU for each pollutant in question and calculated in accordance with the following 

procedure: first, sum the total pounds of the pollutant in question emitted from the Unit during 

the most recent clock hour and the previous 23 clock hours; second, sum the total heat input to 

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

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

total heat input during the 24 hour period. A new 24-Hour Rolling Average Emission Rate shall 

be calculated for each additional clock hour of operation. 

B. A "30-Day Rolling Average Emission Rate" shall be expressed as 

IbfMMBTU for each pollutant in question and calculated in accordance with the following 

procedure: first, sum the total pounds of the pollutant in question emitted from the Unit during an 

Operating Day 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 number of pounds of the pollutant emitted during the 30 Operating Days by the total heat 

input during the 30 Operating Days. A new 30-Day Rolling 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 of Startup, Shutdown, and Malfunction within an 

Operating Day. 

C. A "24-Hour Roiling Average Removal Efficiency" means the.percent 

reduction in the mass of each pollutant in question achieved by a Unit's pollution control device 

over a 24-hour period. This percent reduction shall be calculated by subtracting the outlet 24-

Hour Rolling Average Emission Rate from the inlet 24-Hour Rolling Average Emission Rate, 

dividing that difference by the inlet 24-Hour Rolling Average Emission Rate, and then 

mUltiplying by 100. A new 24-Hour Rolling Average Removal Efficiency shall be calculated for 

each new hour. 

D. A"30-Day Rolling Tonnage" means the sum of the tons of each pollutant 

in question emitted from the Unit or Units in the most recent calendar day and the previous 

twenty-nine (29) calendar days. A 30-Day Rolling Tonnage shall be calculated for each new 

calendar day in accordance with the provisions of this Consent Decree. The calculation of each 

30-Day Rolling Tonnage shall include the pollutants emitted during periods of Startup, 

Shutdown, and Malfunction within each calendar month. 

E. A "12-Month Rolling Heat Input Percentage" means the sum of the 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 of the total heat input from all fuel types in the most 

recent complete month and the previous eleven (11) months. 

F. A "12-Month Rolling Tonnage" means the sum of the tons ofthe pollutant 

in question emitted from the Unit or Units in the most recent complete month and the previous 

eleven (11) months. A 12-Month Rolling Tonnage shall be calculated for each new complete 

calendar month in accordance with the provisions of this Consent D<:cree. The calculation of a 

12-Month Rolling Tonnage shall include the pollutants emitted during periods of Startup, 

Shutdown, and Malfunction within each calendar month. Calculation of the 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 or Promoter Area at the Orange Facility or the HCN 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; Chattanooga Facility - the 

CHCAPCB; and Seaford Facility - State of Delaware through the Dl'lREC. 

K. "Audit," except as used in Section VII (Leak Detection and Repair 

Program Enhancements), shall mean the assessments of compliance with the Environmental 

Requirements conducted by or at the direction ofINVISTA at the Acquired Facilities pursuant to 

the Corporate Audit Agreement between INVIST A and EPA. 

L. "Athens Facility" means the INVISTA facility located at 110 Voyles 

Road, Athens, Georgia. 

M. "Calhoun Facility" means the INVISTA facilily located at 220 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 S02 under this Consent Decree, the d<:vices defined in 40 C.F.R. 

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

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

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

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

P. "CERCLA" shall mean the Comprehensive Environmental Response, 

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

regulations. 

Q. "CHCAPCB" means the Chattanooga-Hamilton County Air Pollution 

Control Board and any successor departments or agencies. 

R. "Chattanooga Facility" means the INVIST A facility located at 4501 N. 

Access Road, Chattanooga, Tennessee. 

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

§§740 1-7671 q, 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 

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

time between the beg~nning of the combustion of fuel in a Unit until 20 minutes after the SCR 

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

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

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V. "Consent Decree" or "Decree" shall mean thb Consent Decree. 

W. "Continuously Operate" or "Continuous Operation" means that when an 

SCR, FGD, Mobotec, or other pollution control or treatment device or process is used at a Unit, 

except during a Malfunction, it shall be operated at all times such Unit is in operation, consistent 

with the technological limitations, manufacturers' specifications, and good engineering and 

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

greatest extent practicable. 

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

Y. "Date of Lodging" shall mean the date the Consent Decree is lodged in the 

United States District Court. 

Z. "Day" shall mean a calendar day. In computing any period of time under 

this Consent Decree, where the last day would fall on a Saturday, Sunday, or a federal holiday, 

the period shall run until the close of business of the next business day. 

AA. "DNREC" means the Delaware Department of Natural Resources and 

Environmental Control and any successor departments or agencies. 

BB. "Duct-injection" means a pollution control technology that employs 

injection of selected sorbents into the flue gas to control S02 emissions. 

Cc. "Election Date" shall mean, for the Chattanooga Facility, the fourth 

anniversary of the Entry Date. 

DO. "Emission Rate" means, in the case of an instantaneous emission, the 

number of pounds of pollutant emitted per million BTU of heat input (lbIMMBTU) measured in 

accordance with this Consent Decree; in the case of mass emissions, Emission Rate means the 

total number of tons of pollutant emitted over a defined period of time, measured in accordance 

with this Consent Decree. 

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

is signed by a United States District Court Judge. 

FF. "Environmental Requirements" shall mean the following federal statutes 

and their implementing regulations: the Emergency Planning and Community Right-to-Know 

Act (EPCRA), 42 U.S.c. §§ 11001 to 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 

Clean Air Act (CAA), 42 U.S.C. §§ 740 I to 7671q; the Comprehensive Environmental 

Response, Compensation, and Liability Act (CERCLA), 42 U.S.c. §§ 960 I 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 Protection Agency, 

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 the reduction of sulfur 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. "Kinston Facility" means the former INVISTA facilities located at 4695 

Highway 11 North, Kinston, North Carolina. 

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

Road, LaPorte, Texas. 

NN. "lbIMMBTU" means one pound of a pollutant per million British thermal 

units of heat input. 

00. "Malfunction" shall mean, as that term is defined under 40 CF.R. § 60.2, 

"any sudden, infrequent, and not reasonably preventable failureof air pollution control 

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

are caused in part by poor maintenance or careless operations are n01: malfunctions." 

PP. "Martinsville Facility" means the INVISTA facility located at 1008 

DuPont Road, Martinsville, Virginia. 

QQ. "Mobotec ROF A" means the pollution control device manufactured by 

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

RR. "Mobotec ROF A with Rotamix" means the pollution control device 

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

mixing of chemicals to reduce NOx emissions. 

SS. "MW" means a megawatt or one million Watts. 

TT. "NAAQS" means national ambient air quality standards that are 

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

UU. "NOx" means oxides of nitrogen, measured in accordance with the 

provisions of this Consent Decree. 

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VV. "Nonattainment NSR" or "NNSR" means the nonattainment area New 

Source Review program under Part D of Subchapter I of the Clean Air 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 

of Part A of Subchapter I, of the Clean Air Act, 42 U.S.c. § 7411,40 C.F.R. Part 60. 

XX. "Operating Day" means any calendar day on which 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 of the air to be combusted through ports above the level of 

the cyclones in the furnace. 

AAA. "Ownership Interest" means all or part ofINVISTA's legal or equitable 

interest in any ofINVISTA's Acquired Facilities. 

BBB. "Parties" shall mean the United States, the State of Delaware Department 

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

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

n~VISTA. 

CCc. "Permitting Authority" shall mean the following with respect to the 

following Acquired Facilities: Camden Facility - the SCDHEC; Chattanooga Facility - the 

CHCAPCB; and Seaford Facility - State of Delaware through the DNREC. 

DDD. "Plaintiffs" means the United States of Ameri(:a, the State of Delaware 

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

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

Board. 

EEE. "PPM" means parts per million. 

FFF. "Promoter Area" means the area where the catalyst for the ADN process is 

manufactured. 

GGG. "PSD" means Prevention of Significant Deterioration within the meaning 

of Part C of Subchapter I of the 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. §§ 690 1-6992,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. §§ 300fto 300j-26, and its implementing regulations. 

111. "SCDHEC" means the South Carolina Department of Health and 

Environmental Control and any successor departments or agencies. 

KKK. "Seaford Facility" means INVISTA's facility located at 25876 DuPont 

Road, Seaford, Delaware.' , 

LLL. "Selective Catalytic Reduction System" or "SCR" means a pollution 

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

emissions. 

MMM. "Selective Non-Catal:)'tic Reduction System" or "SNCR" means a 

pollution control device for reducing NOx emissions through the use of selective non-catalytic 

reduction technology. 

NNN. "Shutdown" means the cessation of operation of equipment for any 

purpose. 

000. "SOz" means sulfur dioxide, measured in accordance with the provisions 

of this Consent Decree. 

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

purpose. 

QQQ. "State of Delaware" or "Delaware" means the State of Delaware 

Department of Natural Resources and Environmental Control. 

RRR. "Title V Permit" means the permit required of IN VISTA's major sources 

under Subchapter V of the Clean Air Act, 42 U.S.c. §§ 7661-7661e and the applicable State 

Implementation Plans. 

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

subject to a requirement within this Consent Decree. 

TIT. "United States" shaH mean the United States of America, on behalf of 

EPA. 

UUU. "Vapor Combustion Unit" means equipment u:,ed for combustion or 

destruction of organic 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 operating pressure. 

WWW. "Victoria Facility" means the INVISTA facility located at 2695 Old 

Bloomington Road North, Victoria, Texas. 

XXX. "Waynesboro Facility" means the INVISTA facility located at 400 

DuPont Boulevard, Waynesboro, Virginia. 

IV. NONATT AINMENT NEW SOURCE REVIEW (NNSR) I PREVENTION OF 

SIGNIFICANT DETERIORA TION{PSD) REQUIREMENTS 

Summary: This Consent Decree requires NNSRlPSD Controls at four Acquired Facilities: the 

Camden Facility, the Chattanooga Facility, the Seaford Facility and the Victoria Facility. 

The Camden Facility has four coal-fired steam generating boilers, designated as Boilers 

1, 2, 3 and 4, and four vaporizers. Camden Boilers 3 and 4 and the Camden Vaporizers 

have pollution control and/or emission reduction requirements under this Decree as 

described in Paragraphs 10,26-27,34 and 37 below. 

The Chattanooga Facility has two natural gas-fired steam generating boilers (Boilers 1 

and 2) capable of firing either natural gas or fuel oil, three coal-fired steam generating 

boilers (Boilers 3, 4, and 5), and six vaporizers. Chattanooga Boilers 3, 4, and 5 and the 

Chattanooga Vaporizers have pollution control and/or emission reduction requirements 

under this Decree as described in Paragraphs 7, 8, 11,26,28,35 and 37 below. 

The Seaford Facility has seven vaporizers and four steam··generating boilers, three of 

these boilers are capable of operating by burning either ,~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 under this 

Decree as described in Paragraphs 17-26 below. 

A. ELECTION PROVISIONS AND INTERIM CONTROLS 

Chattanooga Facility Election Provision and Interim Controls 

7. No later than four years after the Entry Date ("Election Date"), INVIST A shall 

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

. the Election Date the NOx emission controls and S02 emission controls for Chattanooga Boilers 

3,4, and 5 pursuant to Paragraphs 11 and 28; or (b) retire and permanently cease to operate 

Chattanooga Boilers 3, 4, and 5 no later than four years after the Entry Date. lNVISTA shall 

inform the United States and the CHCAPCB of its 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 of no greater than 292 

tons NOx and 870 tons S02 until it exercises its election under Paragraph 7. 

Seaford Facility Election Provision 

9. By no later than the Entry Date, lNVISTA shall select one of the following 

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

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

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

approach, IN VISTA shall implement the 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 1 and 3, and shall implement operational and fuel 

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

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

not exceed 598 tons of NO x and 1446 tons of S02. 

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

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

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

fuel oil only in compliance with Paragraphs 13 and 33 of this Consem Decree. The 12-Month 

Rolling Tonnage 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 

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

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

oil), shall not exceed 118 tons NOx and 353 tons S02- lNVISTA shaH operate the SCR 

technology according to the vendor recommendations regardless of fu el type burned. 

B. NOx EMISSIONS CONTROLS AND LIMITS 

Camden Facility NO" Emission Controls 

10. By December 31,2011, INVISTA shall convert Camden Boiler 3 to a natural gasfired boiler. 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 of at least .sixty-five percent (65%) on 

Camden Boiler 4. The 30-Day Rolling Tonnage of combined NOx emissions from Camden 

Boilers 3 and 4 shall not exceed 23 tons; and the 12-Month Rolling Tonnage of combined 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. 

Chattanooga Facility NO~ Emission Controls 

II. Pursuant to 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 of either option (a) or (b) as outlined below in this 

Paragraph. 

a. . INVIST A shall install and commence Continuous Operation of Mobotec 

ROF A and/or Over-fire Air designed to achieve a removal efficiency for NOx of at least fifty 

percent (50%) on Chattanooga Boilers 3, 4, and 5. The 30-Day Rolling Tonnage from 

Chattanooga Boilers 3-5 combined under this Subparagraph shall not exceed 23 tons NOx; and 

the 12-Month Rolling Tonnage shall not exceed 194 tons NOx. 

b. INVIST A shall convert one or more of Boilers 3, 4, and 5 to burn 

exclusively natural gas. INVISTA shall install and Continuously Operate ultra 10w-NOx burner 

technology or an SCR on each Boiler converted to natural gas firing. For each Boiler 3, 4, or 5 

that is not converted to natural gas firing, INVISTA shall install and commence Continuous 

Operation of Mobotec ROFA and/or Over-fire Air designed to achieve a removal efficiency for 

NOx of at least fifty percent (50%), and shall limit NOx emissions to a 30-Day Rolling Average 

Emissions Rate of no greater than 0.3 IblMMBTU for each Boiler that has Mobotec ROF A 

installed. The 30-Day Rolling Tonnage of NO x emissions from Chattanooga Boilers 3-5 

combined under this Subparagraph shall not exceed 20 tons; and the 12-Month Rolling Tonnage 

of NO x emission shall not exceed 160 tons NOx. 

Seaford Facility NO~ Emission Controls 

DEFINITIONS: For purposes of Paragraphs 12-16 only, the terms "Startup" and "Shutdown" 

shall have the following meanings: 

a. "Startup" means the one-hour period immediately following the beginning 

of combustion of fuel in a Unit, except during a Cold Startup Period. 

b. "Shutdown" means the period of no more than one hour that immediately 

precedes the cessation of fuel combustion in a Unit. 

12. IfINVISTA elects Seaford Option A, then by no later than May 1,2009, 

INVISTA shall install and Continuously Operate Mobotec ROFA with Rotamix that is designed 

to achieve a removal efficiency for NOx of at least sixty-five percent (65%) on Seaford Boilers 1 

and 3. The 12-Month Rolling Tonnage of NO x emissions under this option shall not exceed 272 

tons for Boiler 1 and 326 tons for Boiler 3. The 24-Hour Rolling Average Emissions Rate for 

each Boiler shall be determined in compliance with the Optimization of NO x Controls under 

Paragraph 14-16 of this 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 SCR that 

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

achieves 5 ppmvd NOx corrected to 3% Oxygen on a 3-hour rolling 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 of NO 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 clock hour, except during a Cold Startup Period or as 

otherwise provided in this Paragraph; 

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

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

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

minimum of two (2) I5-minute CEMS interval reading per clock hour is 

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

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

c. NOx emissions above 5 ppmvd during periods of Malfunction of the 

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

in determining compliance with the 3-hour rolling average basis 

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

Malfunction, INVISTA must satisty each ofthe following: 

i. The Seaford facility was at the time of the 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 of improperly designed equipment; lack of 

preventative maintenance; careless or improper operation; or the 

tampering with, interfering with, altering or adjusting any 

equipment in any way that conceals or disguises the type and 

quantity of emissions; 

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

to minimize levels of NO x emissions from the gas-fired boiler and 

takes all reasonable measures to minimize the duration of such 

event and to prevent the recurrence of such event in the future; 

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

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

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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. 

The notations in the log and CEMS must describe the data, list the 

time of entry into the log, and describe the plant operating 

conditions responsible for the event; 

v. The 3-hour average NOx concentration does not exceed 30 ppmvd, 

when calculated under this Paragraph:, 

vi. INVIST A provides written notice of the Malfunction claim to 

DNREC within two (2) business days of the Malfunction period 

containing: a description of the event, any steps taken to mitigate 

emissions, and any corrective actions taken; and 

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

report with DNREC and EPA that sets forth the information that 

demonstrates the applicability of Subparagraphs 13.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 

INVIST A 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 minimize the 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 of the boiler; (6) whether ThVISTA had reviewed all 

prior similar causes of Malfunctions and had taken all reasonable 

and prudent actions necessary to avoid future similar outages; and 

(7) the actual emissions during the period of Malfunction; 

d. Commencing sixty (60) days from the instal/arion of the natural gas-fired 

boiler, Subparagraph 13.c may apply to no more than ten (l0) 3-hour 

averages of NO x per 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 NOx emissions during these 3-hour periods 

covered by Subparagraph 13.c shall be included when calculating the 12-

Month Rolling Tonnage of NO x emissions for the natural gas-fired boiler; 

and 

e. Nothing in this Paragraph shall be construed tc rei ieve INVIST A of any 

obligation under any applicable law, regulation, or permit to report 

emissions during periods of Malfunction, or to document the occurrence 

and/or cause of a Malfunction event. 

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

Optimization of NO x Controls Under Option A: 

14. INVISTA's operation of the 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 of construction and operation of the NOx 

controls for each Boiler. During each Boiler's Optimization Period,INVISTA shall commence 

a period of combustion tuning to optimize performance of the controls. This will include an 

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

emissions and the other relevant operating parameters to identify optimum operating parameters 

that minimize NOx emissions. Thereafter, INVIST A 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 of each 

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

to EPA and DNREC. Each report shall include a summary of the 24-Hour Rolling Average 

Emission Rate for each respective Boiler, emission monitoring data during the Optimization 

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

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 

A verage Emission Rate (lbIMMBTU) for each Boiler and operating parameters based on 

INVIST A's Initial Emissions Reports under Paragraph 15, process variability, a reasonable 

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

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

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

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

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

Victoria 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 INVIST A shall install and commence 

Continuous Operation ofSNCR technology, in compliance with Para:~raph 21, on one of Boilers 

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

18. Victoria SCR Feasibility Pilot Study. INVISTA 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 of at least ninety percent (90%) and that 

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

16 
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 SCR system and 

will include regular soot blowing and a sacrificial catalyst layer inside the SCR vessel. The 

Study will be conducted on one or, at INVISTA's election, more of Boilers 1-4 at the Victoria 

Facility, which BoiJer(s) are to be selected by INVISTA. 

a. The Study shall be comprised of a "Combined Waste Phase" with a 

potential second "Gas Waste Phase," if applicable. The first phase will be the "Combined Waste 

Phase" and will evaluate the application of SCR technology on a boiler firing combined liquid 

and gas wastes at the Victoria Facility. The first phase of the Study shall be complete by no later 

than December 31,2011. A second phase, if applicable, will be the "Gas Waste Phase" and shall 

evaluate the application of SCR technology on a boiler firing only gas at the Victoria Facility. 

The second phase of the Study, if applicable, shall be complete by no later than 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 catalyst measurements 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 SCR Feasibility Pilot Study shall not be conducted on a 

boiler while combusting either Low Boiler Waste or the Cl2 WFE stream. 

c. INVISTA shall submit its plan for each phase of the Study, as applicable, 

to EPA for approval no less than 60 days prior to commencement of each phase ofthe Study. 

Within 50 days of receipt ofthe plan for the Study, EPA shall notify INVISTA of whether it 

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

d. During the Victoria SCR Feasibility Pilot Study, INVISTA shall use all 

reasonable efforts to operate the boiler and the pilot SCR in a manner that is representative of 

current and historic operating conditions (including Startup and Shutdown) and maximizing NOx 

removal efficiency; provided, however, that INVISTA shall not be required to operate the boiler 

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

can be taken to compensate for such impairment. For purposes ofthls Paragraph, "reasonable 

efforts" do not include the installation and operation of pretreatment technologies, including, but 

not limited to, a baghouse control system, electrostatic precipitator, scrubber(s), or a sacrificial 

guard bed or vessel. 

e. INVIST A shall provide updates oftest results to EPA every other month 

via electronic mail and shall provide any other information relevant t'J the Study that EPA 

determines it needs upon request. 

f. If at the completion of the Combined Waste Phase of the 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 at the Victoria Facility Boilers, INVISTA 

may opt to commence the Gas Waste Phase of the Pilot Study, as set forth in Subparagraph 

IS.hoii, in advance of submitting its report for the Combined Waste Phase of the 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 of each phase of the Victoria 

SCR Feasibility Pilot Study, as applicable, INVISTA shall submit a written report to EPA 

summarizing the results of the Study. This report shall include the catalyst measurements, 

emission monitoring data, and operating data compiled on a daily or daily average basis. 

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

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

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

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

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

Subparagraph 18,i, and EPA agrees pursuant to Subparagraph 18J, 

INVIST A shall propose for EPA appr:wal a schedule to install and 

Continuously Operate SCR technology designed to achieve a NOx 

removal efficiency of at least ninety p,;:rcent (90%) on one of 

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

three Boilers by no later than 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 of SCR 

technology on a gas-only waste boiler at the Victoria Facility, and 

shall be conducted in accordance with the requirements of this 

Paragraph 18, with the exception that INVIST A may propose a 

Study ofless than six months if EPA agrees that there will be 

sufficient data for it to properly evaluate the feasibility of SCR 

pursuant to Subparagraphs 18.i and l8.j; 

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

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

18.g for the Gas Waste Phase of the Study INVISTA asserts that 

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

Subparagraph 18.i, and EPA agrees pursuant to Subparagraph 18.j, 

INVISTA shall propose for EPA approval a schedule for the 

conversion of one of Boilers 1-4 to a gas-only waste boiler and the 

installation and Continuous Operation of SCR technology designed 

to achieve a NOx removal efficiency of at least ninety percent 

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

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

(c) If, in the report submitted pursuant to Subparagraph 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 of the 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 of SNCR technology on one of Boilers 1-4 by December 

31, 2013, and on the remaining Boilers by December 31, 2016; 

iii. Further, if INVIST A asserts that SCR is not feasible, as defined in 

Subparagraph 18.i, to treat combined I iquid/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 SNCR technology. 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 operating parameters 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 of this Paragraph, the 

feasibility of SCR shall be determined based only on the following criteria: 

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

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

per 12-month period in order to maintain a NOx removal efficiency 

greater than that of SNCR, then SCR i;; considered infeasible for 

the purpose ofthis Paragraph 18; 

ii. If the 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 of less than 7,000 h{l, then SCR is 

considered infeasible for the purpose of this Paragraph 18; or 

iii. If the 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 of the boiler, 

then SCR is considered infeasible for the purpose of this Paragraph 

18. 

j. SCR Feasibility Determination and Installation Schedule. 

1. Within 120 days of receipt of each 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 

if applicable; EPA will review and ei.ther approve or conditionally 

approve INVISTA's selected technology and proposed 

implementation schedule or will spe(~ify another NOx control 

technology (limited to SCR in lieu of an INVIST A -proposed 

SNCR or SNCR in lieu of an INVIST A-proposed SCR) or 

schedule to be implemented by INVISTA under Subparagraph 

18.h; 

ii. EPA will not specify the installation of SCR if EP A determines 

that anyone ofthe criteria listed in Sllbparagraph 18.i 

demonstrates that SCR is infeasible under Paragraph 18; 

iii. If EPA conditionally approves INVISTA's proposedtechnology or 

implementation schedule or if EPA njects INVISTA's technology 

or implementation schedule and specifies that SCR be 

implemented in lieu ofSNCR (or vict! versa) or that the technology 

be implemented according to a different schedule, then within sixty 

(60) days of its receipt of EPA's detelmination, INVISTA shall 

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

responds to EPA's conditional approval, or invoke the Dispute 

Resolution provisions of Section XV. 

k. If SCR is selected as the NOx control technology, INVIST A shall comply 

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

the NOx control technology, INVIST A shall comply with the optimization protocol set forth for 

SNCR in Paragraph 21, below, and shall Continuously Operate the SNCR using best efforts to 

maximize NOx emissions reductions across all of the Victoria Boilers. 

L INVISTA shall comply with the implementation schedule approved by 

EPA pursuant to this Paragraph 18. 

19. Optimization orSCR Controls. 

a. Immediately after installation of the SCR technology under Paragraph 18, 

as applicable, INVIST A shall begin a 16-month period of optimizing the performance of each 

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 SCR technology. The SCR Optimization Period will include an t:valuation of the effect of 

operating parameters on NOx emissions, the monitoring of NO x emissions and the other relevant 

operating parameters to identify optimum operating parameters that minimize NOx emissions. 

After the SCR Optimization Period, INVISTA shaH operate the SCR for that boiler in 

accordance with the parameters that minimize NOx emissions to the greatest extent possible 

based on the evaluation conducted under this Subparagraph 19.a. 

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

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completion of each SCR Optimization Period, INVIST A shall submit an emissions report to 

EPA. This report shall include a summary of NO 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 SCR Emissions Report 

under Subparagraph 19.b, process variability, a reasonable certainty of compliance, and any 

other information pertinent to the specific emission Unit. INVISTA 3hall comply with the 

proposed NOx emission limit immediately following submission of the Initial SCR Emissions 

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

INVISTA's receipt of notice from EPA regarding the final NOx emission limit or upon issuance 

of an operating permit from the Permitting Authority, whichever is earlier. 

20. Except, as set forth below, if, based on operations dur:ng the SCR Optimization 

Period, INVIST A asserts and EPA agrees that the catalyst in the SCR technology at any boiler 

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

NOx removal efficiency greater than that ofSNCR, INVISTA may, after written approval from 

EPA, which shall not be unreasonably withheld, elect to cease to operate the SCR technology 

and, upon Shutdown of the SCR technology, commence Continuous Operation ofSNCR 

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

EPA agrees that the catalyst needs to be replaced at a rate greater than once every six (6) months 

in order to maintain a NOx removal efficiency greater than that of SNCR, INVIST A may, after 

written approval from EPA, which shall not be unreasonably withheld, elect to cease to operate 

the SCR technology and, within five months of Shutdown of the SCR technology, shall 

commence Continuous Operation ofSNCR technology. INVISTA shall submit its analysis and 

supporting documentation to EPA. The emissions limit for such an SNCR will be determined by 

the procedure outlined in Paragraph 21. 

21. Optimization of SNCR Controls. 

a. Immediately after the installation of SNCR on each boiler pursuant to 

Paragraph 17 and Paragraphs 18 or 20, if applicable, INVISTA shall begin a I80-day period of 

optimizing the performance of the SNCR for that boiler (the "SNCR Optimization Period"). 

This will include an evaluation of the effect of operating parameters on NOx emissions and the 

monitoring of NO x emissions and the other relevant operating parameters to identifY optimum 

operating parameters that minimize NOx emissions. Thereafter, INVrST A shall operate the 

SNCR at the boilers in accordance with those parameters to minimize NOx emissions to the 

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

b. Initial SNCR Emissions Report: No later than ninety (90) days after the 

completion of the last SNCR Optimization Period pursuant to Subparagraph 21.a, INVISTA 

shall submit an emissions report to EPA. This report shall include a summary of NO 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 the operating parameter limits that 

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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 Oxidizer under Paragraph 23, for the Thermal Oxidizer that controls the C 12 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 on INVISTA's Initial SNCR Emissions Report under Subparagraph 21.b, 

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

the specific emission Unit. 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 with the final NOx emissions limits no later than thirty (30) 

days following INVISTA's receipt of notice from EPA regarding the final NOx emission limit or 

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

Cogen Unit and WFE Controls 

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

Continuous Operation ofSCR at the Victoria Cogen Unit designed to achieve a NOx reduction 

efficiency of at 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 of 85 tons NOx• 

23. By no later than December 31, 2013, INVIST A shall elect one of the following 

control options for the Cl2 WFE waste stream and shall notifY the United States in writing as to 

which option INV 1ST 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 Oxidizer that is in compliance with all applicable federal 

and state permitting requirements; 

c. Option C: By no later than December 31, 201S, INVISTA shall route the 

Cl2 WFE waste stream to a boiler equipped with SNCR control technology. 

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

any time thereafter for the boiler to which the CI2 WFE stream is routed, INVISTA determines 

that combustion ofthe Cl2 WFE stream is causing or will likely cause the boiler to operate in 

excess of the emissions limits applicable to the boiler, INVISTA may, after written notice to 

EPA, elect to implement Option A or Option B under Paragraph 23. 

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

(Option B), INVIST A shall include the emissions from the Thermal Oxidizer in its emissions 

report and proposed emission limits required under Subparagraph 21.b. Immediately upon 

installation of the Thermal Oxidizer, INVISTA shall operate the Thermal Oxidizer in a manner 

that minimizes NOx emissions. A Thermal Oxidizer installed pursuant to this Paragraph shall 

be subject to the emissions limitations established under Subparagraph 2l.c, above. 

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General NO)!. Provision 

26. All Units, except the Vaporizers, that have NOx emissions limits under this 

Consent Decree shall be equipped with CEMS to measure NOx emissions no later than the date 

the Unit has such requirements under this Consent Decree, with th(: exception that Units at 

Chattanooga shall be equipped with CEMS by no later than June 30, 2010. 

C. S02 EMISSION REDUCTIONS 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 under this option shall not exceed I ton. 

Chattanooga S02 Emission Controls 

28. Pursuant to Paragraph 7 above, ifINVISTA elects to install and Continuously 

Operate emission controls on Chattanooga Boilers 3, 4, and 5, then eighteen months after the 

Election Date, INVISTA shall comply with the requirements of either option (a) or (b) as 

outlined below in this Paragraph: 

a. INVISTA shall install and commence Continuous Operation of ductinjection technology on Chattanooga Boilers 4 and 5 designed to achieve a removal efficiency 

for S02 of at least fifty percent (50%) combined with other control measures as may be necessary 

to meet the emissions requirements under this Subparagraph. The 30··Day Rolling Tonnage of 

S02 emissions from Chattanooga Boilers 3, 4, and 5 combined under this Subparagraph shall not 

exceed 60 tons; and the 12-Month Rolling Tonnage shall not exceed 530 tons 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; 

b. INVISTA shall convert one or both Boilers 4 and 5 to bum exclusively 

natural gas. For the Boiler 4 or 5 that is not converted to natural gas tiring, INVISTA shall 

install and commence Continuous Operation of duct injection technology designed to achieve a 

removal efficiency for S02 of at least fifty percent (50%) combined with other control measures 

that may be necessary to meet the emissions requirements under this Subparagraph. The 30-Day 

Rolling Tonnage of S02 emissions from Chattanooga Boilers 3-5 combined under this 

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

tons 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 of Paragraphs 29-33 only, the terms "S,tartup" and "Shutdown" 

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shall have the following meanings: 

a. "Startup" means the one-hour period immediately following the beginning 

of combustion of fuel in a Umt, except during a Cold Startup Period. 

b. "Shutdown" means the period of no more than one hour that immediately 

precedes the cessation of fuel combustion in a Unit. 

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

January 1,2010, INVISTA shall install and Continuously Operate a dry Flue Gas 

Desulfurization (FGD) System on Seaford Boiler 1 designed to achieve a 24-Hour Rolling 

Average Removal Efficiency for S02 of at 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 S02 of 

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

Tonnage of S02 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 % sulfur based on a 12-month rolling average. 

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

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

Start-up, Shutdown, Malfunction, or maintenance of Boilers 1 or 3 which necessitates additional 

heat output from Boiler 2 to maintain normal operations. 

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

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

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

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

period of time not to exceed 2,880 hours based on a 12-month rolling summation of total 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 of the existing Boilers for a period not 

to exceed two (2) months after May I, 2009, without violation or penalty of any term or 

condition of this Consent Decree, including but not limited to the provision on "installation and 

operation" of controls (Paragraphs 9 and 13, herein). The number of hours of oil burning during 

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

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

2,880 hours of oil-burning shall be determined by summing the number of hours plus any 

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increment of an hour (increments less than one hour shall count as one hour) of continuous oilburning, on a 12-month rolling 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 content based on a 12-month rolling average. 

35. Chattanooga Facility - Beginning on the Entry Date, the Vaporizers 1-6 at the 

Chattanooga Facility shall burn no less than 95% natural gas and no more than 5% fuel oil as a 

12-Month Rolling Heat Input Percentage calculated from the total heat input to the vaporizers by 

each fuel type. The fuel used in the Chattanooga Vaporizers 1-6 shall not exceed a 0.3% sulfur 

content based on a 12-month rolling average. 

36. Seaford Facility - Beginning on the Entry Date, the Vaporizers at the Seaford 

Facility shall burn #2 distillate or #6 residual fuel oil with a sulfur centent no greater than 1 % 

sulfur based on a 12-month rolling average. 

General S02 Provisions 

37. All Units, except the Vaporizers, Units firing natural gas, and Seaford Units firing 

only fuel oil as described under Paragraph 33, that have S02 emissions limits under this Consent 

Decree shall be equipped with CEMS to measure S02 emissions no later than the date the Unit 

has such requirements under this Consent Decree, with the exception that Units at Chattanooga 

shall be equipped with CEMS by no later than June 30,2010. 

D. PARTICULATE MATTER EMISSIONS LIMIT 

Seaford Facility PM Limit 

38. IfINVISTA selects Option A as described in Paragraph 9, then by no later than 

May 1,2009, INVISTA shall: (a) comply with a final PM emission limit of 0.015 IbslMMBtu at 

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

E. . PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED 

CONTROLS 

39. Emission reductions generated by INVISTA to comply with the requirements of 

this Consent Decree shall not be considered as a creditable contemporaneous emission decrease 

for the purpose of obtaining a netting credit under the Clean Air Act's Nonattainment NSR and 

PSD programs. 

40. The limitations on the generation and use of netting 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 of this Paragraph 40, 

emission reductions from an INVIST A Unit are greater than those required under this Consent 

Decree if they result from INVIST A compliance with federally enforceable emission limits that 

are more stringent than those limits imposed on Units under this Consent Decree and under 

applicable provisions ofthe Clean Air Act or the 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, or EPA as creditable contemporaneous emission 

decreases for the purpose of attainment demonstrations submitted pursuant to section 110 of the 

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. Exception to the General Prohibition against the Use or Generation of Consent 

Decree Emissions Reductions for Seaford Option B. 

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

INVISTA may use 50 tons per year of NO x and 50 tons per year of S02 from the emissions 

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

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

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

requirements of this Consent Decree. Utilization ofthis exception is wbject to 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 INVIST A use emissions reductions 

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

the time that actual emissions reductions have occurred; 

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

iv. The emissions requirements of this Consent Decree are for 

purposes of this 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 FLARING DEVICES 

42. INVIST A 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 later than December 31, 

2010, if the final design of the flare calls for replacement of the flare tip or the flare can be 

reconstructed in three weeks; or (b) by no later than December 31,2011, if the final design of the 

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 practices to' minimize 

emissions from the flare. 

VI. BENZENE WASTE NESHAP PROGRAM ENHANCEMENTS 

43. Summary: As of the Date of Entry, INVISTA's Victoria Facility and Orange 

Facility have total annual benzene (TAB) amounts above 10 Mg. Upon the Date of Entry, the 

Victoria and Orange Facilities shall utilize the exemptions set forth in40 C.F.R. §§ 61.342(c)(2) 

and (c)(3)(ii) (hereinafter referred to as the "2 Mg Compliance Option") to comply with 40 

C.F.R. § 61.342{c). 

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

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

"BWON," or Subpart FF) and to minimize or eliminate fugitive benzene emissions at the 

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

each of the Victoria and Orange Facilities one of the following benzene emission reduction 

options, and shall notifY the United States in writing as to which optkm INVIST A has selected 

for each Facility. After providing the United States with written notL:;eof its election, INVIST A 

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

Decree. 

a. Option A - INVIST A 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 (or only, as applicable) Facility for which this option is elected, by no 

later than December 31, 2013, and (ii) for the second, if applicable, Facility for which this option 

is elected, by no later than December 31, 2016. If INVIST A elects to implement this new 

technology pursuant to this Option A at the Victoria and/or Orange F3cility(ies), the other 

requirements of this 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 under this Option, INVISTA will 

continue to comply with the 2 Mg Compliance Option. 

b. Option B INVIST A shall continue to comply with the 2 Mg Compliance 

Option, and shall undertake the measures set forth in this Section VI to ensure continuing 

compliance with the Benzene Waste NESHAP, to further address the findings in Appendix C, 

and to minimize or eliminate fugitive benzene emissions at the relevant Facility. 

prange Facility - Actions to Correct Non-Compliance 

45. By no later than December 31, 2012, INVIST A shall Continuously Operate a 

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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 later than 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 Area at the Orange Facility with 

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

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

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

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

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

INVIST A shall comply with the requirements of 40 C.F .R. § 61.346 for all regulated 

components of the process wastewater drain system. 

Victoria Facility - Actions to Correct Non-Compliance 

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

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

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

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

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

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

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

executed. 

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

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

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

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

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

knock-out drum for all the common vent headers for the Vapor Combustion Units and operating 

flares within the ADN Area at the Victoria Facility. 

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

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

comply with the requirements of 40 C.F.R. § 61.346 for all regulated components of the 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 or existing installations improved pursuant to Paragraphs 45, 46, 48, and 49. 

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

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

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\ 

requirements of Subpart FF. 

52. Certification of Compliance with the 2 Mg Complianee Option. Within ninety 

(90) days after Entry, INVISTA shall submit a report to 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 implement the requirements of this 

Paragraph at all locations at the 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 after the Entry Date, INVISTA shall insure that 

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

utilizing single canisters and shall operate them in series. For any permanent unit, within thirty 

(30) days following completion ofthe installation of dual canisters, INVISTA shall submit a 

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

all locations at the Victoria and Orange Facilities 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 carbon canister was installed under 

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

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

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

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

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

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

Facilities. 

c. For dual carbon canister systems, "breakthrough" between the primary and 

secondary canister is defined as any reading equal to or greater than:; ppm benzene. 

d. INVIST A 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 of a new dual carbon canister system. 

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

route the flow to an appropriate alternative control device) 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 of this Subparagraph, "immediately" shall mean 

within twenty-four (24) hours of the detection ofa breakthrough foreanisters greater than 55 

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

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

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and secondary canister is identified and each calendar day thereafter. This daily monitoring shall 

continue until the primary canister is replaced. Ifbenzene is detecled at the outlet of the 

secondary canister during this period of daily monitoring, both canisters must be replaced within 

eight (8) hours of the detection of a breakthrough. 

f. Temporary Applications. For a period not longer than forty-five (45) 

days, INVISTA may utilize properly-sized single canisters for short-term operations such as with 

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

operated as part of a single canister system, "breakthrough" is defined for purposes of this 

Consent Decree as any reading ofVOC above background or benzene above I ppm (whichever 

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

this Consent Decree as any reading of benzene above 10 ppm. Beginning no later than the Entry 

Date, INVISTA shall monitor for breakthrough from a single carbon canister system once every 

calendar day that there is actual flow to the carbon canister. INVIS T A shall replace the single 

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

appropriate device immediately when breakthrough is detected. For purposes of this 

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

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

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

NESHAP vapor control service until it has been appropriately regenerated. 

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

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

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

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

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

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

canisters that are greater than 55 gallons. 

h. INVIST A shall continue to maintain records a.ssociated with the 

requirements of this 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 manage merit of change procedures to provide 

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

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

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

55. Laboratorv Audits. INVISTA shall conduct audits of all 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 after the Entry Date, INVISTA shall complete initial 

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

audits for the remaining laboratories within 365 days of the Entry Dare. INVISTA shall also 

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audit any new laboratory to be used for analyses of benzene samples from the Orange and 

Victoria Facilities prior to use of the new laboratory. If INVIST A has completed an audit of any 

laboratory on or after January 1,2006, initial audits of those laboratories pursuant to this 

Subparagraph shall not be required. 

b. During the term of this Consent Decree, INVIST A 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 Consent Decree, this Paragraph and Subpart FF are solely 

INVISTA's. 

56. Benzene Spills. For any spill at either the Victoria or Orange Facility after the 

Entry Date, INVISTA shall review the spill to determine if any benz'~ne waste, as defined by 

Subpart FF, was generated as a result of the 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, INVIST A shall develop and 

implement a program for annual (i.e. once each calendar year) training for all employees who 

draw benzene samples for Benzene Waste NESHAP purposes. 

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

development of standard 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, INVIST A shall complete an initial 

training program regarding these procedures for all operators assigned to the relevant equipment, 

if such training has not already been provided. Comparable training shall also be provided to 

any persons who subsequently become operators, prior to their assumption of this 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 of the 

requirements of this Subsection VI to provide evidence that its employees are properly trained to 

implement any requirements that they are hired to perform pursuant to Paragraphs 51, 53, 58, 60, 

and 61 of this Consent Decree. 

58. Sampling Under the 2 MG Compliance Option. INVISTA shall conduct quarterly 

sampling as described by this Paragraph at the Victoria and Orange Facilities for the purpose of 

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calculating quarterly, uncontrolled benzene quantities. 

a. Within 180 days after the Entry Date, INVISTA shall submit to EPA for 

approval a sampling plan for the Victoria and Orange Facilities designed to 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 of line" of the uncontrolled benzene waste streams; (ii) quarterly sampling of all 

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

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

the 10 ppmw exemption (40 C.F .R. § 61.342( c )(2» and that contain greater than 0.1 Mg/yr of 

benzene. The Sampling Plans may identifY commingled, exempt w(J,ste streams for sampling, 

provided INVIST A demonstrates that the benzene quantity of those ,;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. If changes in processes, operations, or other f2.ctors lead INVISTA to 

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

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 of an issue 

under this Paragraph occurs. 

c. INVISTA shall commence sampling under its Sampling Plan during the 

first full calendar quarter following submittal of the Plan, regardless of whether or not the Plan is 

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

samples from each identified sampling location. INVIST A shall use the average of all samples 

taken and the identified flow calculations to determine its quarterly benzene quantity in 

uncontrolled waste streams and to estimate a calendar year value for the Facility. 

d. After at least eight quarters of sampling 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. If EPA determines, after an 

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

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

frequency requirement under this Paragraph will be modified in accordance with Paragraph 141 

(Modification). 

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

of each calendar quarter following commencement of quarterly sampling, INVISTA shall 

calculate a quarterly uncontrolled benzene quantity and shall estimate a projected calendar year 

uncontrolled benzene quantity based on the quarterly sampling result3 and the approved flow 

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

Reports due under Section XII of this Decree. 

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60. Corrective Measures. 

a. Applicability. If the calculations in Paragraph 59 indicate that the 

quarterly uncontrolled benzene quantity exceeds 0.5 Megagrams or the projected calendar year 

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 of the calendar year. If additional 

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 ofthe potentially elevated benzene 

quantities; (ii) all corrective actions that INVIST A has taken or plans to take to ensure that the 

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

implement to ensure that INVIST A complies with the 2 Mg Compliance Option. If a spill event 

is the main cause of the 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 of the conditions in Subparagraph 60.a continues 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 later than the last day of 

the next following quarter, INVISTA shall submit a proposal to EPA that identifies the 

contractor, the contractor's scope of work, and the contractor's schedule for the Third-Party TAB 

Study and Compliance Review. Unless EPA disapproves or seeks modifications of the proposal 

within thirty (30) days after its receipt, INVISTA shall authorize the contractor to commence 

work. INVIST A 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 of the ThirdParty TAB Study and Compliance Review, INVISTA shall submit the results to EPA. After the 

report is submitted to EPA, INVIST A 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 of the 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 of the 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, INVIST A shall: 

i. . Conduct monthly visual inspections ofand, if appropriate, refill all 

Subpart FF water traps within the Orange and Victoria Facilities 

individual drain systems; 

ii. IfINVISTA utilizes conservation vents, visually inspect all 

Subpart FF conservation vents or indicators on process sewers for 

detectable leaks on a weekly basis, re~;et any vents where leaks are 

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

years of weekly inspections, and based upon an evaluation of the 

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

to modifY the frequency of the 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, if flow is then detected, INVISTA shall 

then visually inspect that indicator on a weekly basis for four 

weeks. If flow is detected during any two of those four weeks, 

INVISTA shall install a carbon canister on 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 roof tanks. 

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

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

ADN Area that are segregated storm water drains. 

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

Reports Required under 40 C.F.R. § 61.357 and the Semi-Annual Reports Required by Section 

XII (Periodic Reporting). At the times specified in the applicable provisions of this Section VI, 

INVISTA will submit, as and to the extent required, the following reports to EPA: 

a. a certification of compliance under Paragraph 52; 

b. a report certifying the completion of installation of dual carbon canisters 

(under Subparagraph 53.a); 

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

Sampling Plan, if necessary (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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a. An identification of all laboratory audits, if any, completed during the six 

month period, including a description ofthe methods used in the audit and 

the results of the audit; 

b. A description ofthe measures taken, if any, during the six month period to 

comply with the training provisions of Paragraph 57; and 

c. A summary of the sampling results required under Paragraph 58, including 

the quarterly and projected annual uncontrolled benzene quantities or 

TAB, as applicable. 

VII. LEAK DETECTION AND REPAIR PROGRAM JH:NHANCEMENTS 

64. In order to minimize or eliminate fugitive emissions of volatile organic 

compounds ("VOCs"), benzene, volatile hazardous air pollutants ("VHAPs"), and organic 

hazardous air pollutants ("HAPs") from equipment in light liquid and/or in gas/vapor service, 

INVIST A shall undertake the enhancements identified in this Section VII to its leak detection 

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

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

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

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

program for compliance with all federal, state, and local LDAR regulations applicable to the 

Victoria and Orange Facilities. 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 of leak rate goals for the Victoria and Orange Facilities that will be a 

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

targets shall have the purpose of facilitating lower leak rates and are not 

intended as enforceable requirements; 

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

service that is subject to periodic monitoring rl~quirements via 40 C.F .R. 

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

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

HAPs, 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 of leaking equipment; 

e. Procedures for identifying and including new equipment to be added to the 

LDAR program; 

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f. A process for evaluating new and replacement equipment to promote 

consideration and installation of equipment th,lt will minimize leaks 

and/or eliminate chronic leakers; 

g. A description of the Facility's LDAR monitoring organization and a 

designation of the person or position responsible for LDAR management 

who has the authority to implement LDAR improvements at the Facility, 

as required by Paragraph 67; and 

h. A procedure for regularly communicating LDAR information to 

appropriate INVIST A personnel. 

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

which includes the following features, and within ninety (90) days of completion of the 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 LDAR training prior to each employee beginning such work; 

b. For all personnel assigned LDAR responsibilities, INVIST A shall provide 

and require completion of annual LDAR training or require 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 of an initial training program that includes 

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

(initial LDAR training for all such personnel will be completed not 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 of no longer than three years. 

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

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

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

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

management and authority to implement LDAR improvements. 

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

ensure the Victoria and Orange Facilities' compliance with all applicable LDAR requirements. 

Each LDAR Audit shall include, but shall not be limited to: (i) performing comparative 

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Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 41 of 69 

monitoring; (ii) reviewing records to ensure monitoring and repairs were completed in the 

required periods; (iii) reviewing component identification procedur,es, tagging procedures, and 

data management procedures; and (iv) observing LDAR technicians' calibration and monitoring 

techniques. During each LDAR Audit, leak rates shall be calculated for each process unit where 

comparative monitoring was performed. 

a. Initial LDAR Audit. INVISTA shall retain a third-party contractor to 

complete an Initial LDAR Audit for the Victoria Facility by no later than December 31,2009, 

and for the Orange Facility by no later than June 30, 2010. 

b. Initial Audit Report. Within ninety (90) days of completion of each audit, 

INVISTA shall report to EPA any areas of non-compliance identifi(;!d as a result of its audit and 

submit in writing a proposed compliance schedule for correcting the: non-compliance. If the 

proposed compliance schedule extends greater than ninety (90) days beyond the audit completion 

date, INVIST A must seek approval of the compliance schedule from EPA. INVIST A shall 

implement the compliance schedule as proposed until the schedule is approved or disapproved 

by EPA. Within ninety (90) days of completing each audit, INVISTA shall certifY to EPA that 

the facility: is in compliance; has completed related corrective action (if necessary); and/or is on 

a compliance schedule, and shall specifically certifY that all affected equipment has been 

identified and included in the facility LDAR program. Violations identified in the report of the 

initial audit conducted pursuant to Subparagraph 68.a and corrected by INVISTA as required in 

Paragraph 69 shall not be subject to the stipulated penalties in Paragraph 89. 

c. Regular LDAR Audits. 

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

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

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

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

approximately 48 months between the Audits). 

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 LDAR Audit 

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 of the Victoria and 

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

calendar years (with approximately 48 months between the 

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 LDAR Audit 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 than tV\iO (2) calendar years (with 

approximately 24 months between the Audits). 

69. Implementation of Actions Necessary to Correct Non-Compliance. If the results 

of any of the LDAR Audits conducted pursuant to Paragraph 68 identifY any areas of 

noncompliance, INVIST A shall implement, as soon as practicable, all steps necessary to correct 

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

recurrence of the cause of such non-compliance. For purposes of this Paragraph, a ratio of the 

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

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

process unit for the four quarters immediately preceding the audit, in excess of3.0 shall be 

deemed a cause for corrective action. If the calculated ratio yields an infinite result, INVISTA 

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

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

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

and shall maintain a written record of all corrective actions that INV[ST A takes in response to 

deficiencies identified in any LDAR Audits. After the completion of any LDAR Audit other 

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

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

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

schedule for implementing future corrective actions. 

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

INVISTA's compliance with the Consolidated Federal Air Rule ("CAR") at 40 C.F.R. Part 65 is 

at least as stringent as the requirements under this Paragraph and compliance with CAR is 

achieved on or before the deadlines set pursuant to this Paragraph, then compliance with CAR 

shall constitute compliance with this Paragraph. 

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

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

Date, INVISTA shall utilize an internal leak definition of 2000 ppm for centrifugal pumps that 

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

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

their applicable regulatory leak definition. 

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71. LDAR Monitoring Frequency. IfINVISTA's compliance with CAR (40 C.F.R. 

Part 65) is at least as stringent as the requirements under this Paragraph and compliance with 

CAR is achieved on or before the deadlines set pursuant to this Paragraph, then compliance with 

CAR shall constitute compliance with 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 LDAR requirements, INVISTA shall monitor pumps at the internal leak definition on 

a monthly basis. 

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

applicable under Subparagraph 70.a, and unless more frequent monitoring is required by 

applicable LDAR requirements, INVISTA shall monitor valves (other than difficult to monitor 

or unsafe to monitor valves) at the internal leak definition on a quarterly basis, with no ability to 

skip periods on a process-unit-by-process-unit basis. 

72. Reporting, Recording, Tracking, Repairing and·Remonitoring Leaks of Valves 

and Pumps Based on the Internal Leak Definitions. IfINVISTA's compliance with CAR (40 

C.F.R. Part 65) is at least as stringent as the requirements under this Paragraph and compliance 

with CAR is achieved on or before the deadlines set pursuant to this Paragraph, then compliance 

with CAR shall constitute compliance with this Paragraph. 

a. Reporting. For regulatory reporting purposes, INVISTA may continue to 

report leak rates in valves and pumps against the reporting requirements stated in applicable 

regulations, or may use the lower, internal leak definitions specified in Paragraph 70. 

b. Recording, Tracking, Repairing and Remonitcring Leaks. INVISTA shall 

record, track, repair, and re-monitor all leaks in excess of the internal leak definitions of 

Paragraph 70 (at such time as those definitions become applicable). Except as provided. 

otherwise in this Section VII, INVISTA shall make a first attempt at repair and remonitor the 

component within five (5) calendar days after a leak is detected and, if continuing to leak, either 

complete repairs and re-monitor leaks or place such component on the Facility's delay of repair 

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 of the Consent Decree. 

73. Initial Attempt at Repair on Certain Valves. By no later than ninety (90) days 

after the Date of Entry, INVIST A shall promptly make an "initial attempt" at repair after 

detecting a leak at a reading greater than 200 ppm ofVOCs at any valve, excluding pressure 

relief devices, control valves, valves that are on the delay of repair 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. If the re-monitored leak reading is greater than the applicable leak definition, 

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

no first repair attempt requirement shall apply. IfINVISTA can dem)nstrate with sufficient, 

statistically significant monitoring data over a period of at least two years that "in itial attempts" 

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Case 1:09-cv-00244-GMS Document 13 Filed 07/29/2009 Page 44 of 69 

to repair at 200 ppm worsen or do not improve leak rates, INVIST A may request EPA to 

reconsider or amend this requirement 

74. Electronic Monitoring, Storing, and Reporting ofLDAR Data. 

a. Electronic Storing and Reporting ofLDAR Data. INVIST A has and shall 

continue to maintain an electronic database for storing and reporting LDAR data at the Victoria 

and Orange Facilities. 

b. Electronic Data Collection During LDAR Monitoring and Transfer 

Thereafter. By no later than 180 days after the Entry Date, INVISTA shall use data loggers 

and/or electronic data collection devices during all LDAR monitoring at the Victoria and Orange 

Facilities. INVISTA, or its designated contractor, shall use its best efforts to transfer, by the end 

of the next business day, the electronic data from electronic data logging devices to the electronic 

database maintained pursuant to 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 of the 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 or broken, etc.), and shall record, at a minimum, the identity of the technician, the 

date, the monitoring starting and ending times, 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 pursuant to Subparagraph 74.a within 

seven (7) days of the monitoring event. 

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

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

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

technicians. INVIST A shall ensure that monitoring data provided by monitoring technicians is 

reviewed daily for QAlQC. At least once per calendar quarter, INVISTA shall perform a 

QAlQC review of each contractor's monitoring data which shall include, but not be limited to, a 

review of: (i) the number of components monitored per technician; (ii) the time between 

monitoring events; and (iii) abnormal data patterns. 

76. ~alibration/Calibration Drift Assessment. 

a. Calibration. INVIST A shall conduct all calibrations of LDAR monitoring 

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

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

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

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

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

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

approximately equal to the applicable internal leak definition for the life of this Consent Decree 

as defined in Section XXVII (Termination of Consent Decree). If any calibration drift 

assessment after the initial calibration shows a negative drift of more 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 that had 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 of Repair. 

a. By no later than ninety (90) days after the Entry Date, INVIST A shall take 

the following actions for any equipment at the Victoria and Orange Facilities that INVISTA 

intends to place on the "delay of repair" 'list, under applicable regulations: 

i. INVIST A shall require sign-off by the emit supervisor within thirty 

(30) days of identifYing that a piece of j~quipment is leaking at a 

rate greater than the applicable leak definition and that such 

equipment qualifies for delayed repair under applicable 

regulations; 

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

repair" list in INVISTA's regular LDAR monitoring; 

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

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

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

of the Consent Decree, on valves subject to the LDAR 

Regulations, other than control valves and pressure relief valves, 

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

use a "drill and tap" or equivalent method for fixing such leaking 

valves, unless INVISTA can demonstrate that there is a safety, 

mechanical, or adverse environmental concern posed by attempting 

to repair the leak in this manner. INVIST A will perform the first 

"drill and tap" (or equivalent repair method) within fifteen (IS) 

days, and a second attempt (if necessary) within thirty (30) days 

after the leak is detected. If a new metbod develops for repairing 

such valves, INVISTA will advise EPA prior to implementing the 

use of such new method in place of drill and tap for repairs 

required under this Decree. 

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

Paragraph if it leaks above 5,000 ppm twice in any consecutive four (4) quarters after the Entry 

Date, unless the valve has not leaked in the twelve (12) consecutive quarters prior to the relevant 

process unit turnaround. Following the identification of a "chronic le:tker" non-control valve, 

INVIST A 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 tc the 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 of Entry 

Date. 

80. Recordkeeping and Reporting Requirements for this Section. 

a. In the Semi-Annual Reports submitted by INVIST A pursuant to 

Section XII (Periodic Reporting), INVIST A shall include the following information in the 

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

1. A copy of the LDAR Program Description under Paragraph 65; 

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

required by Paragraph 66; 

iii. An identification of the person or position responsible for LDAR 

performance as required by Paragraph 67; 

IV. A certification that the lower leak deflnitions and increased 

monitoring frequencies have been implemented according to 

Paragraphs 70 and 71; 

v. A certification of the implementation of the "initial attempt" to 

. repair program under Paragraph 73; 

vi. A certification of the implementation ofQAlQC procedures for 

review of data generated by LDAR technicians as required by 

Paragraph 75; 

Vll. A certification of the implementation of the calibration drift 

assessment procedures of Paragraph 76; 

viii. A certification ofthe implementation of the "delay of repair" 

procedures of Paragraph 77; 

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

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

Xl. The number of valves and pumps monltored in each process unit; 

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

unit; 

xiii. The number of "difficult to monitor" pieces of equipment 

monitored; 

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

unit; 

xv. A list of all equipment currently on th,~ "delay of repair" list and 

the date each component was placed en the list; 

xvi. The number of repairs not attempted within five (5) days and thirty 

(30) days pursuant to Subparagraph n.b; 

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

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

xviii. The number of repairs not completed at the next process unit 

turnaround pursuant to Paragraph 78; and 

xix. The number of repairs 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 

of the first Semi-Annual Report submitted each year 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 of the auditon;, a summary of the audit 

results, and the actions that INVIST A took or intends to take to correct identified deficiencies. 

VIII. RESOLUTION OF CLAIMS 

81. Claims Based on Violations in Appendix A. Entry of this 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 of the requirements in 

Sections IV and V of this Consent Decree shall resolve INVISTA's <:ivil and administrative 

liability to the Plaintiffs for NNSRlPSD or NSPS claims, as applicable, arising out of the alleged 

violations specified in Appendix B. Notwithstanding the resolution of liability in this Paragraph, 

the release ofliability by the Plaintiffs to INVlSTA for claims arising out of the alleged 

violations specified in Appendix B shall be rendered void if INVISTA materially fails to comply 

with the obligations and requirements of Section IV (relating to NNSRlPSD Requirements) or 

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

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

pays any stipulated penalties due as a result of such 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 of the alleged violations 

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

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LDAR requirements applicable to the Victoria and Orange facilities that commence prior to the 

Date of Lodging, 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 of liability by the Plaintiffs to INVIST A for claims arising 

out of the alleged violations specified in Appendix C or identified in the Paragraph 68.b initial 

audit report shall be rendered void if INVISTA materially fails to comply with the obligations 

and requirements of Sections VI and VII (relating to BWON and LDAR Requirements) of this 

Consent Decree; provided, however, that the releases in this ParagralJh shall not be rendered void 

if INVISTA remedies such failure and pays any stipulated penalties due as a result of such 

material failure. 

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

EPA, the United States or of any of the Plaintiffs of its right to institute an administrative or civil 

action against INVISTA for any past, present, or future civil violations of any statutes, rules or 

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

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

ofINVISTA. Except as otherwise provided in Paragraphs 81-83, INVISTA's compliance with 

this Consent Decree shall be no defense in law or equity 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 of this Consent Decree is expressly conditioned on the completeness, accuracy and truth of 

INVISTA's certifications set forth in Subparagraphs 97.a through 97.h of this Consent Decree. 

In the event that INVIST A has made any material misrepresentatiom; or omissions in any 

Subparagraph 97.a through 97.h of this Consent Decree: 

a. The Resolution of Claims in Paragraphs 81-83 shall be jointly voidable by 

action of the United States and the Applicable Co-Plaintiff, except that any 

civil penalty or stipulated penalty payments already made by INVIST A 

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 of Defendant's violations, 

including criminal prosecution for perjury or false swearing. 

86. In the event that INVISTA has made a nonmaterial misrepresentation or omission 

in any Subparagraph 97.a through 97.h then the Resolution of Claims in Paragraphs 81-83 shall 

be jointly voidable by action of the United States and the Applicable Co-Plaintiff solely with 

respect to the violations to which such nonmaterial misrepresentation related, but not voidable in 

their entirety. 

IX. PAYMENT OF CIVIL PENALTIES 

87. Within thirty (30) days after Date of Entry ofthis Consent 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 of the 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 of Justice lockbox bank in accordance 

with instructions provided by the United States to INVISTA upon execution ofthe Consent 

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. INVIST A shall pay the amount of $1 00,000 to the CHCAPCB. 

e. INVIST A shall pay any amounts due to DNREC, SCDHEC, or the 

CHCAPCB by certified or corporate check payable to that entity and sent by first-class mail to 

the first person listed under the Notice section (Section XVIII) below. 

f. INVIST A shall send notice to the United States that payment has been 

made in accordance with Section XVIII of this 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. STIPULATED PENALTIES / VIOLATION OF CONSENT DECREE 

89. For any failure by INVISTA to comply with the terms of this Consent Decree, 

and subject to the provisions of Sections XIV (Force Majeure) and XV (Dispute Resolution), 

lNVIST A shall pay, within thirty (30) days after receipt of written d4~mand to INVIST A, the 

following stipulated penalties to the United States and/or the Applicable Co-Plaintiff: 

Consent Decree Violation Stipulated Penalty 

(per day per violation, unless otherwise 

specified) 

a. Failure to pay the civil penalty as $10,000 

specified in Section IX (Payment of Civil 

Penalties) of this Consent Decree 

b. Failure to comply with any applicable $100 for each 3-hour limit exceeded; 

3-Hour Rolling Average, 24-Hour Rolling $1,000 for each 24-hour limit exceeded; 

A verage 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 31st through 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 of non-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 at a Unit, as required by an amount equal to 1.2 times the 

Paragraphs 31-36 economic benefit of non-compliance (as 

defined below in Paragraph 91), 

whichever is greater 

f. Failure to install or operate CEMS as $1,000 

required in Paragraph 26, 37, or 38 

g. Failure to apply for any permit required $1,000 

by Section XVI 

h. Failure to install and fully implement $7,500 per month 

new ADN technology as required by 

Paragraph 44.a, if applicable 

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 

NESHAP controls required by Paragraph 

46 or 49 

k. Failure to timely install or replace $1,000 

carbon canisters as required by Paragraph 

53 

1. Failure to maintain the records or $2,000 

materials required by Section VI of this 

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 

storm water 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. If it 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 greater than 

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 per component, but not greater than 

at rq>airQrogram in Paragraph 73 $10,000 per month per facilLty 

z. Failure to implement the quarterly $10,000 per month per facility 

QAJQC procedures described in Paragraph 

75 

aa. Failure to implement and comply with $100 per component but not greater than 

the LDAR monitoring program in the $10,000 per month per facility 

Written LDAR Program Description under 

Paragraph 65. 

bb. If it is determined through a federal, 

'state or local investigation that 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, as approved, the reports, plans, thereafter 

studies, analyses, protocols, or other 

submittals required by this Consent 

Decree, except as otherwise specified in 

this Paragraph 89, above. 

90. Violation of an emissions limit based on a 3-Hour Rof!ing Average basis is a 

violation for each 3-hour period during which the specified limit is exceeded. Violation of a 24-

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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-Morth Rolling Tonnages is a 

violation for each calendar month during which the average exceeds the limit. 

91. For those provisions where a stipulated penalty of either a fixed amount or 1.2 

times the economic benefit of non-compliance is available, the deci~;ion of which alternative to 

seek shall rest exclusively within the discretion of the EPA and the Applicable Co-Plaintiff. For 

purposes of this Section X, the term "economic benefit of non-compliance" means the economic 

benefit accrued from delaying a capital investment, delaying a one-time expenditure, and 

avoiding recurring costs (such as operation and maintenance costs) over the period of noncompliance. The overall "economic benefit of non-compliance" will be calculated based on the 

total number of days of non-compliance, and will be multiplied by 1.2 to compute the total 

stipulated penalty amount under a partiCUlar provision of this Section X. That total stipulated 

penalty amount will be assessed for the full period of non-compliance, and will not be assessed 

"per day." In no event shall any stipulated penalty assessed against lNVIST A 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 of this 

Consent Decree. 

92. All stipulated penalties shall begin to accrue on the day after the performance is 

due or on the day a violation occurs, whichever is applicable, and shall continue to accrue until 

performance is satisfactorily completed or until the violation ceases. Where a single event 

triggers more than one stipulated penalties provision in this Consent Decree, only the provision 

providing for the higher stipulated penalty shall apply, and that stipulated penalty is accrued for 

each day of violation unless otherwise specified in Paragraph 89. 

93. INVISTA shall pay all stipulated penalties to the United States and the Applicable 

Co-Plaintiffs within sixty (60) days of receipt of written demand to INVISTA from the United 

States and/or the Applicable Co-Plaintiff, and shall continue to make such payments every thirty 

(30) days thereafter until the violation(s) no longer continues, unless INVISTA elects within 

thirty (30) days of receipt of written demand to INVISTA from the United States and/or the 

Applicable Co-Plaintiff to dispute the accrual of stipulated penalties in accordance with the 

provisions in Section XVI (Dispute Resolution) of this Consent Decree. A demand from either 

the United States or an Applicable Co-Plaintiff shall be deemed a demand from both, but the 

United States and the Applicable Co-Plaintiff shall consult with each other prior to making a 

demand. A demand for the payment of stipulated 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-Plaintiff is demanding for each violation (as can be best estimated), 

the calculation method underlying the demand, and the grounds upon which the demand is based. 

After consultation with each other, the United States and the Applicable Co-Plaintiff may, in 

their unreviewable discretion, waive payment of all or any portion of stipulated penalties that 

may accrue under this Consent Decree. Stipulated penalties shall be paid to the United States 

and Applicable Co-Plaintiff in the following manner: 

a. Stipulated penalties owed by INVISTA shall be! paid 50% to the United 

States and 50% to the Applicable Co-Plaintiff. If there is no Applicable Co-Plaintiff, stipulated 

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penalties owed by INVISTA shall be paid 100% to the United States, Stipulated penalties owing 

to the United States of under $10,000 will be paid by check and madt;! payable to "U.S. 

Department of Justice," referencing DOJ Case 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 of Civil Penalties) ofthis Consent 

Decree. 

94. Should INVISTA dispute the United States' and/or an Applicable Co-Plaintiffs 

demand for all or part of a stipulated penalty, it may avoid liability for failure to pay a stipulated 

penalty by placing the disputed amount demanded in a commercial e:;crow account pending 

resolution of the matter and by invoking the dispute resolution provi~:ions of Section XV within 

the time provided in Paragraph 93 for the payment of stipulated penalties. If the 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-Plaintiff shall be 

entitled to the amount that was due by the Court, plus the interest that has accrued in the escrow 

account on such amount. Such payment shall be made according to the following schedule: 

a. If the dispute is resolved by agreement, or by Co decision of Plaintiffs 

pursuant to Section XV (Dispute Resolution) ofthis Consent 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 of the effective date of the agmement or ofINVISTA's 

receipt of EPA's decision; 

b. Ifthe dispute is appealed to the Court and Plaintiffs prevail in whole or in 

part, INVISTA shall, within sixty (60) days of receipt of the Court's 

decision or order, pay all accrued stipulated penalties determined by the 

Court to be owed, together with accrued interest, except as provided in 

Subparagraph 94.c.; 

c. If the Court's decision is appealed by either Party and the Plaintiffs prevail 

in whole or in part, INVISTA shall, within fifteen (15) days of receipt of 

the final appellate court decision, pay all accru~d stipulated penalties 

detennined to be owed, together with accrued interest. 

d. For purposes of this 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 to pay stipulated penalties in compliance with the terms of 

this Consent Decree, the Plaintiffs shall be entitled to collect interest on such penalties, as 

provided for in 28 U.S.c. § 1961. 

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96. In cases where a violation of this Consent Decree is also a violation that provides 

a basis for potential recovery of civil penalties under the Clean Air Act and its implementing 

federal, state, or local regulations, the United States and Applicable Co-Plaintiff will elect 

between seeking stipulated penalties under this Consent Decree and commencing a new action 

for civil penalties under such laws. Notwithstanding the foregoing, the United States and the 

Applicable Co-Plaintiffs reserve the right to pursue any other non-monetary remedies to which 

they are legally entitled. 

XI. INVISTA'S CERTIFICATION;~ 

97. INVIST A certifies as true to the best of its knowledge and belief, after a 

reasonable inquiry, each of the 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 or through a compliance management system reflecting its due 

diligence; 

b. INVISTA either disclosed the subject violations to or entered into the 

audit agreement with EPA prior to discovering such violations through a 

monitoring or sampling requirement prescribed by statute, regulation, 

permit, judicial or administrative order, or consent agreement; 

C. INVIST A disclosed the subject violations promptly and in writing; 

d. INVIST A disclosed the subject violations to EPA prior to the 

commencement of a federal, state, or local inspection or investigation, 

notice of a citizen suit, filing of a complaint of a 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 Appendix A and is, to the 

best of its knowledge and belief, in full compliance with the 

Environmental Requirements with respect to the subject violations of such 

Environmental Requirements as set forth in Appendix A at the Acquired 

Facilities that INVISTA currently owns; 

f. INVIST A has taken appropriate steps to prevent a recurrence of the 

subject violations; 

g. INVISTA has owned and operated the Acquiwd Facilities since April 30, 

2004. For the period beginning April 30, 2004, through August 2004, 

INVISTA did not receive notice from the government of any of the 

violations (or closely related violations) identified in Appendices A, B, 

and C. For the purposes of this Subparagraph g., a violation is: 

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l. any violation of federal, state, or local environmental law 

identified in a judicial or administrative order, consent agreement 

or order, complaint, or notice of violation, conviction or plea 

agreement; or 

ii. any act or omission for which the regulated entity has previously 

received penalty mitigation from EPA or a state or local agency; 

and 

h. INVISTA cooperated as requested by EPA and provided information 

necessary and requested by EPA to determine applicability of the Audit 

Policy. 

XII. PERIODIC REPORTING 

98. Within 180 days after each date established by Section IV of this Consent Decree 

for INVIST A to achieve and maintain a certain Emission Rate and/or Removal Efficiency at any 

Unit, except those Units that are not required to install pollution control equipment pursuant to 

this Consent Decree, INVISTA shall conduct a performance test that demonstrates compliance 

with the Emission Rate and/or Removal Efficiency required by this Consent Decree. Within 

forty-five (45) days of each such performance test, INVISTA shall submit the results of the 

performance test to EPA and the Permitting Authority at the addresses specified in Section XVIII 

(Notices) of this Consent Decree. 

99. In addition to any other express reporting requirement in this Consent Decree, 

INVIST A 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-annually thereafter. 

100. The progress report shall contain the following information: 

a. a progress report on the implementation of the requirements of Sections 

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 of this Consent Decree; 

c. a summary ofthe emissions data, including a separate identification of any 

exceedance(s) of Consent Decree emission limitations or standards for the 

Acquired Facilities set forth or established pursuant to Sections IV, VI, 

and VII of this Consent Decree for that time period; and 

d. a description of any problems anticipated with respect to meeting the 

requirements of Sections IV - VII of this 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 that INVIST A attaches the Title V permit report and provides a specific 

reference to the provisions of the Title V permit report that are responsive to the information 

required in the periodic progress report. 

102. Each INVIST A progress report shall be signed by INVIST A' 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 of the person(s) who manage the system or the person(s) 

directly responsible for gathering the information, I hereby c,~rtifY under penalty 

of law that, to the best of my knowledge and belief, this infOimation is true, 

accurate, and complete. I understand that there are significant penalties for 

submitting false, inaccurate, or incomplete information to th{: United States. 

XIII. REVIEW AND APPROVAL OF SUBMITTALS 

103. INVISTA shall submit each plan, report, or other subnission to EPA and the 

Applicable Co-Plaintiff whenever such a document is required to be submitted for review or 

approval pursuant to this Consent Decree. EPA and the Applicable Co-Plaintiff may approve the 

submittal or decline 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 of receiving 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 of informal negotiations, under 

Section XVI (Dispute Resolution) of this Consent Decree. 

104. Upon receipt of Plaintiff s (or Plaintiffs') final approval of the submittal, or upon 

completion of the submittal pursuant to dispute resolution, INVIST A shall implement the 

approved submittal in accordance with the schedule specified therein. 

XIV. FORCE MAJEURE 

105. For purposes of this Consent Decree, a "Force Majeure Event" shall mean an 

event that has been or will be caused by circumstances beyond the control of INVIST A, its 

contractors, or any entity controlled by INVISTA that delays compliance with any provision of 

this Consent Decree or causes a violation of any provision of this Co 1 sent Decree despite 

INVIST A's best efforts to fulfill the obligation. "Best efforts to fulfill the obligation" include 

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using best efforts to anticipate any potential Force Majeure Event and to address the effects of 

any such event (a) as it is occurring and (b) after it has occurred, such that the delay or violation 

is minimized. "Force Majeure" does not include INVISTA's financial inability to perform any 

obligation under this Consent Decree. 

106. Notice of Force Majeure Events. If any event occurs or fails to occur that may 

delay compliance with or cause a violation of any obligation under this Consent Decree, as to 

which INVISTA intends to assert a claim of Force Majeure, INVISTA shall notifY the United 

States and Permitting Authority in writing as soon as practicable, but in no event later than 

twenty (20) business days following the date INVISTA knew or should have known of the 

event. In this notice, INVISTA shall reference this Paragraph 106 ofthis Consent Decree and 

describe the anticipated length of time that the delay or violation may persist, the cause or causes 

of the delay or violation, all measures taken or to be taken by INVISTA to prevent or minimize 

the delay or violation, the schedule by which INVISTA proposes to implement those measures, 

and INVISTA's rationale for attributing a delay or violation to a Force Majeure Event. 

INVISTA shall adopt all reasonable measures to avoid or minimize such delays or 

violations. INVISTA shall be deemed to know of any circumstance which INVISTA, its 

contractors, or any entity controlled by INVISTA knew. 

107. Failure to Give Notice. IfINVISTA fails to materially comply with the notice 

requirements of this Section, the Plaintiffs may void INVISTA's claim for Force Majeure 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's claim of 

Force Majeure within twenty (20) business days of receipt of the notice provided under 

Paragraph 105. If the Plaintiffs agree that a delay in or an impedimellt to performance has been 

or will be caused by a Force Majeure Event, the Parties shall stipulate to an extension of 

deadline(s) for performance of the affected compliance requirement(;;) by a period not to exceed 

the delay actually caused by the event. In such circumstances, an appropriate modification shall 

be made pursuant to Section XXII (Modification) of this Consent Decree. 

109. Disagreement. If the Plaintiffs do not accept INVISTA's claim of Force Majeure, 

or if the Parties cannot agree on the length of the delay actually caus<::d by the Force Majeure 

Event, the matter shall be resolved in accordance with Section XV (Dispute Res<,llution) of this 

Consent Decree. 

110. Burden of Proof. In any dispute regarding Force Maje:ure, INVISTA shall bear 

the burden of proving that any delay in perfonnance or any other violation of any requirement of 

this Consent Decree was caused by or will be caused by a Force Maje:ure Event. INVISTA shall 

also bear the burden of proving that D'JVISTA materially complied with the notice requirements 

of this Section and the burden of proving the anticipated duration and extent of any delay(s) 

attributable to a Force Majeure Event. An extension of one compliance date based on a 

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particular event may, but does not necessarily, result in an extension of a subsequent compliance 

date. 

Ill. Events Excluded. Unanticipated or increased costs or expenses associated with 

the performance ofINVISTA's obligations under this Consent Decree 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 that could qualifY as force majeure within the meaning of 

this Section: construction, labor, or equipment delays; Malfunction of a Unit or emission control 

device; unanticipated fuel supply or pollution control reagent/catalyst delivery interruptions; acts 

of God; and acts of war or terrorism. Depending upon the circumstccllces and Defendants' 

response to such circumstances, failure of a permitting authority to issue a necessary permit in a 

timely fashion may constitute force majeure where the failure of the permitting authority to act is 

beyond the 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 permit terms and conditions. As part of the resolution of any matter 

submitted to this Court under Section XV (Dispute Resolution) of this Consent Decree regarding 

a claim of Force Majeure, the Parties by agreement, or this Court by order, may in appropriate 

circumstances extend or modifY the schedule for completion of work under this Consent Decree 

to account for the delay in the work that oecurred as a result of any delay or impediment to 

performance agreed to by the United States and the Applicable Co-Plaintiff and approved by the 

Court. INVISTA shall be liable for stipulated penalties for its failure thereafter to complete the 

work in accordance with the extended or modified schedule. 

XV. DISPUTE RESOLUTION 

113. In the event that the United States and the applicable Permitting Authority make 

differing determinations or take differing actions that affect INVISTA's rights or obligations 

under this Consent Decree, the final decision of the United States shall be binding. 

114. The dispute resolution procedure required herein shall be invoked by one Party 

giving written notice to the other Parties advising of a dispute pursuant to this Section. The 

notice shall describe the nature of the dispute and shall state the noticing Party's position with 

regard to such dispute. The Party receiving such a notice shall ackncwledge receipt of the 

notice, and the Parties in dispute shall expeditiously schedule a meeting to discuss the dispute 

informally not later than fourteen (14) days following receipt of such notice. 

115. Disputes submitted to dispute resolution under this Se:.:tion shall, in the first 

instance, be the subject of informal negotiations among the disputing Parties. Such period of 

informal negotiations shall not extend beyond thirty (30) calendar days from the date of the first 

meeting among the disputing Parties' representatives unless they agree in writing to shorten or 

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extend this period. During the informal negotiations period, the disputing Parties may also 

submit their dispute to a mutually agreed-upon non-binding alternative dispute resolution (ADR) 

forum if the Parties agree that the 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. If the disputing Parties are unable to reach agreement during the informal 

negotiation period, the Plaintiffs shall provide INVISTA with a written summary of their 

position regarding the dispute. The written position provided by the: Plaintiffs shall be 

considered binding unless, within forty-five (45) calendar days then:after, INVISTA seeks 

judicial resolution of the dispute by filing a petition with this Court. The Plaintiffs may respond 

to the petition within forty-five (45) calendar days offiling. 

117. Where the nature of the dispute is such that a more timely resolution of the issue 

is required, the time periods set out in this Section may be shortened by the Court upon motion 

of one of the Parties to the dispute. 

118. As part of the resolution of any dispute under this Seetion, in appropriate 

circumstances the disputing Parties may agree, or this Court may order, an extension or 

modification ofthe schedule for the completion of the activities required under this Consent 

Decree to account for the delay that occurred as a result of dispute rt:solution. INVIST A shall be 

liable for stipulated penalties for its failure thereafter to complete the work in accordance with 

the extended or modified schedule, provided that INVISTA shall not be precluded from asserting 

that a Force Majeure Event has caused or may cause a delay in complying with the extended or 

modified schedule. 

119. The Court shall decide all disputes pursuant to applicable principles of law for 

resolving such disputes. In their initial filings with the Court under Paragraph 116, the disputing 

Parties shall state their respective positions as to the applicable standard oflaw for resolving the 

particular dispute. 

120. The Court shall not draw any inferences nor establish any presumptions adverse 

to any disputing Party as a result of invocation of this 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 permit to 

authorize construction or operation of any device, including all preconstruction, construction, 

and operating permits required under state or local law, INVIST A shall make such application in 

a timely manner. The Plaintiffs will use their best efforts to expeditiously review all permit 

applications submitted by INVISTA in order to meet the requirements of this 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 INVIST A meets all other requirements ofthat 

program. 

122. When penn its 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 of the pennit request, including 

requests for additional information by the pennitting authorities. Any failure by INVISTA to 

submit a timely pennit application for any Unit shall bar any use by lNVISTA of Section XIV 

(Force Majeure) of this Consent Decree, where a Force Majeure claim is based on pennitting 

delays. 

123. Notwithstanding the reference to Title V or other federally enforceable penn its in 

this Consent Decree, the enforcement of such penn its shall be in accordance with their own 

tenns and the Clean Air Act. The Title V or other federally enforceable penn its 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 of whether such term 

has or will become part of a Title V or other federally enforceable pennit subject to the terms of 

Section XXVII (Tennination of Consent Decree) of this 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 after the Entry 

Date for the Victoria and Orange Facilities, INVISTA shall amend any applicable Title V permit 

application, or apply for amendments of its 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 of Entry 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 Effective After Date of Entry. Within one year from the commencement of operation of 

each emission control technology to be installed, upgraded, or operated on a Unit under this 

Consent Decree, INVIST A shall apply to include the following requirements and limitations 

enumerated in this Consent Decree in either a federally enforceable operating pennit issued 

under the applicable SIP or amendments to the applicable SIP: (a) any applicable 30-Day Rolling 

A verage 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, INVIST A shall provide EPA and the Permitting Authority with a 

copy of each application for a permit to address or comply with any provision of this Consent 

Decree, as well as a copy of any penn it proposed as a result of such c;cpplication, to allow for 

timely participation in any public comment opportunity. 

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127. IflNVISTA sells or transfers to an entity unrelated to INVISTA ("Third Party 

Purchaser") part or all of its Ownership Interest in an Unit or Facility covered under this Consent 

Decree, INVISTA shall comply with therequirements ofParagrapi:ts 135-138 with regard to that 

Unit prior to any such sale or transfer unless, following any such sale or transfer, INVIST A 

remains the holder of the Title V or other federally enforceable pennit for such Unit or Facility. 

XVII. INFORMATION COLLECTION AND RETENTION 

128. Any authorized representative ofthe United States or Permitting Agency, 

including their attorneys, contractors, and consultants, upon presentation of credentials, shall 

have a right of entry upon the premises of IN VISTA 's Acquired Facilities at any reasonable time 

for the purpose of: 

a. monitoring the progress of activities required under this Consent Decree; 

b. verifYing any data or information submitted to the Ulited States in accordance 

with the terms of this Consent Decree; 

c. obtaining samples and, upon request, splits of any 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 of all records and documents (including records and documents in electronic 

form) now in its or its contractors' or agents' possession or control, ,and that directly relate to 

INVISTA's performance of its obligations under this Consent Decree until December 31, 2018. 

This record retention requirement shall apply regardless of any 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 any requests 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 of the Clean Air Act, 

42 U.S.c. § 7414, or any other applicable federal, state or local laws, regulations or permits. 

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XVIII. NOTICES 

132. Unless otherwise provided herein, whenever reports, notification, submissions, or 

communications are required by this 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 of Justice 

P.O. Box 7611, Ben Franklin Station 

Washington, D.C. 20044-7611 

DJ# 90-5-2-1-08085 

As to EPA: 

Director, Special Litigation and Projects Division 

Office of Enforcement and Compliance Assurance· 

U.S. Environmental Protection Agency 

Ariel Rios Building, Mail Code 2248-A 

1200 Pennsylvania Ave., N.W. 

Washington, D.C. 20460 

with a hard copy to 

Director, Air Enforcement Division 

Office of Enforcement and Compliance Assurance 

U.S. Environmental Protection Agency 

Ariel Rios Building, Mail Code 2242-A 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

and an electronic copy to 

burke.shaun(ii(epa.gov 

milton.philip(ii(epa.gov 

EPA Region 3: 

Chief, Enforcement and Compliance Branch 

Office of Enforcement, Compliance & Environmental Justice 

Mail Code: 3ECI0 

EPA Region 3 

1650 Arch Street 

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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 of Delaware: 

Valerie M. Satterfield 

Deputy Attorney General 

Delaware Department of Justice 

102 W. Water Street, 3rd Floor 

Dover, DE 19904 

Ali Mirzakhalili, Administrator 

Air Quality Management 

Department of Natural Resources 

& Environmental Control 

156 S. State Street 

Dover, DE 19901 

Joanna French, Program Manager 

Air Quality Management 

Department of Natural Resources 

& Environmental Control 

156 S. State Street 

Dover, DE 1990 I 

As to the South Carolina Department of Health and Environmental Control: 

Director, Air Compliance Management Division 

Bureau of Air Quality 

SC Department of Health and Environmental Control 

2600 Bull Street 

Columbia, SC 29201 

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As to the Chattanooga-Hamilton County Air Pollution Control Board: 

Robert H. Colby 

Director 

Chattanooga-Hamilton County Air Pollution Control Bureau 

6125 Preservation Drive 

Chattanooga, Tennessee 37416-3638 

As to INVIST A: 

General Counsel 

INVISTA, S.a r.l. 

4123 East 37th Street North 

Wichita KS 67220 

Director, EH&S 

INVISTA, S.a r.l. 

4123 East 37th Street North 

Wichita KS 67220 

l33. All notifications, communications or submissions made pursuant to this Section 

shall be sent either by: (a) overnight mail or delivery service; (b) certified or registered mail, 

return receipt requested; or (c) electronic transmission, unless the recipient is not able to review 

the transmission in electronic 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 del ivered to the delivery service. If the date for submission of a report, notification, 

submission, or other communication falls on a Saturday, Sunday, or legal holiday, the report, 

notification, submission, or other communication will be deemed timely if it is submitted by the 

next business day. All notifications, communications, and submissions made by electronic 

means shall be electronically signed and certified, and shall be deemed submitted on the date that 

INVISTA receives written acknowledgment of receipt of such 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 OF OWNERSHIP INTERESTS 

l35. IfINVISTA proposes 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 of this Consent Decree prior to such sale or transfer, and shall send a 

copy of such written notification to the Plaintiffs pursuant to Section XVIII (Notices) of this 

Consent Decree at least thirty (30) days before such proposed sale or transfer. 

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136. INVISTA shall condition any transfer, in whole or in part, of ownership of, 

operation of, or other interest in any Ownership Interest to a Third P,lrty Purchaser, upon the 

execution by the transferee of a modification to the Consent Decree, which modification shall 

make the terms and conditions of the Consent Decree that apply to the Ownership Interest 

applicable to the Third Party Purchaser. In the event of such transfer, INVISTA shall notify the 

Plaintiffs. By no 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 of the Consent Decree applicable 

to the transferee. INVIST A shall be released from the obligations and liabilities of this Consent 

Decree applicable to the transferred Ownership Interest unless one of the 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 of the Consent Decree. 

I 37. This Consent Decree shall not be construed to impede the transfer 0 f any 

Ownership Interests between INVISTA and any Third Party Purchaser as long the requirements 

of this Consent Decree are met. This Consent Decree shall not be construed to prohibit a 

contractual allocation as between INVISTA and any Third Party P:lrchaser of Ownership 

Interests of the burdens of compliance with this Decree, provided that both INVISTA and such 

Third Party Purchaser meet the requirements of this Section. 

138. Notwithstanding the foregoing, however, INVISTA may not assign, and may not 

be released from, any obligation under this Consent Decree that is not specific to the purchased 

or transferred Ownership Interests, including the obligations set forth in Section XI (INVISTA's 

Certifications) and Section IX (Payment of Civil Penalties). INVISTA may propose and the 

Plaintiffs may agree to restrict the scope of joint and severalliabiIity of any purchaser or 

transferee for any obligations of this Consent Decree that are not specific to the transferred or 

purchased Ownership Interests, to the extent such obligations may be adequately separated in an 

enforceable manner. 

XX. EFFECTIVE DATE 

139. The effective date of this Consent Decree shall be the Date of Entry. 

XXI. RETENTION OF JURISDICTION 

140. Continuing Jurisdiction. The Court shall retain jurisdiction ofthis case after entry 

of this Consent Decree to enforce compliance with the terms and conditions of this Consent 

Decree and to take any action necessary or appropriate for its interpretation, construction, 

execution, modification, or adjudication of disputes. During the teml of this Consent Decree, 

any Party to this Consent Decree may apply to the Court for any relid necessary to construe or 

effectuate this Consent Decree. 

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XXII. MODIFICATION 

141. Modifications. This Consent Decree contains the entire agreement of the Parties 

and will not be modified by any prior oral or written agreement, representation, or 

understanding. Prior drafts ofthe Consent Decree will not be used in any action involving the 

interpretation or enforcement ofthe Consent 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 of this 

Paragraph, non-material modifications include but are not limited to modifications to the 

frequency of reporting obligations and modifications to schedules that do not extend the date for 

compliance with emissions limitations following the installation of control equipment or the 

completion of a catalyst additive program, provided that such changes are agreed upon in writing 

between EPA and INVIST A. Material modifications to this Consent Decree will be in writing, 

signed by EPA, the Applicable Co-Plaintiff, and INVIST A, 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 of this Consent Decree is subject to the procedures of28 C.F.R. § 50.7, which provides for 

notice of the lodging of this Consent Decree in the Federal Register, an opportunity for public 

comment, and the right ofthe United States to withdraw or withhold consent if the comments 

disclose facts or considerations which indicate that the Consent Decree is inappropriate, 

improper or inadequate. fNVIST A shall not oppose entry of this Consent Decree by this Court 

or challenge any provision of this Consent Decree unless the United States has notified 

INVISTA, in writing, that the United States no longer supports entry of the Consent Decree. If 

the United States withdraws or withholds consent, any other Plaintiff may also withdraw or 

withhold consent. 

XXIV. GENERAL PROVISIONS 

143. This Consent Decree shall be considered an enforceable judgment for purposes of 

post-judgment collection in accordance with Rule 69 of the Federal Rules of Civil 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 of this Decree or the settlement it represents, nor 

shall it be used in construing the terms of this Decree. 

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145. This Consent Decree does not pertain to any matters other than those expressly 

specified herein. Nothing in this Consent Decree is intended or shall be construed as a waiver by 

the United States of its right to institute a civil or criminal action against INVIST A for any past, 

present or future civil or criminal violations of any statutes, rules or regulations 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 of its 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 or equity to any civil or criminal action commenced by 

the Plaintiffs pursuant to 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 enforce the terms of this Consent 

Decree, and to take any action authorized by federal, state, or local law not inconsistent with the 

terms of this Consent Decree to achieve or maintain INVIST A's compliance with the terms and 

conditions of this Consent Decree. 

148. Effect of Shutdown. The permanent Shutdown of a Unit and the surrender of all 

air permits or air permit conditions for that Unit will be deemed to satisfY all requirements of 

Sections IV, V, VI, and VII of this Consent Decree applicable only to that Unit on and after the 

later of: (i) the date of the Shutdown of the Unit; or (ii) the date ofthe surrender of all air 

permits/permit conditions. The permanent Shutdown of a Facility an d the surrender of all air 

permits for that Facility will be deemed to satisfY all requirements of Sections IV, V, VI, and VII 

of this Consent Decree applicable to that Facility on and after the later of: (i) the date of the 

Shutdown of the Facility; or (ii) the date of the surrender of all air permits. This Paragraph does 

not affect INVISTA's requirements for the Facility where a Shutdown Unit is located (including 

INVISTA's obligation to meet the 12-month rolling averages) unles:; each applicable Unit at the 

Facility is permanently Shutdown. 

XXV. COSTS OF SUIT 

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

XXVI. ENTRY OF CONSENT DECREE 

150. INVISTA consents to the entry of this Consent Decre·e unless the United States 

notifies INVIST A, in writing, that the United States no longer suppo'ts the entry ofthe Consent 

Decree. 

151. If for any reason this Court should decline to approve this Consent Decree in the 

form presented or the United States no longer supports entry of the Consent Decree, this Consent 

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Decree is voidable at the sole discretion of any Party and the terms of this Consent Decree may 

not be used as evidence in any litigation between the Parties. 

XXVII. TERMINATION OF CONSENT DECREE 

152. This Consent Decree shall be subject to termination upon motion by the United 

States or INVISTA under the conditions identified in Subparagraphs 152.a-d. INVISTA may 

seek termination of any provision of the Consent Decree at anyone of the Acquired Facilities 

upon completion and satisfaction at the relevant Acquired Facility(ies) of all of the following 

requirements of this Paragraph I 52.a-d as applicable to the Acquired Facility(ies): 

a. compliance with all provisions contained in this Consent Decree, including 

installation of emission control technology; 

b. payment of all penalties and other monetary obligations due under the terms of 

the Consent Decree; no penalties or other monetary obligations due hereunder can 

be outstanding or owed to the United States or Co-Plaintiffs; 

c. application for and receipt of Title V permits incorporating the surviving emission 

limits and standards established under Sections IV, VI:, and VII; and 

d. operation for at least one year of each Unit incompliance with the emission limits 

and other requirements established herein, and certification of such compliance 

for each Unit within the first periodic report followine; the conclusion of the 

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-Plaintiff in writing. The report shall contain the 

following statement, signed by a responsible official ofINVISTA: "To the best of my 

knowledge, after appropriate investigation, I certifY that the information contained in or 

accompanying this submission is true, accurate and complete. I am aware that there are penalties 

for SUbmitting false information, including the possibility of fine and imprisonment for knowing 

violations." Unless, within 120 days of receipt ofINVISTA's certification under this Paragraph, 

either the United States or the Applicable Co-Plaintiff objects in writlng with specific reasons, 

the Court may, upon motion by INVISTA, order that this Consent Dt:cree be terminated. If 

either the United States or the Applicable Co-Plaintiff objects to the certification by INVISTA 

then the matter shall be submitted to the Court tor resolution under Section XV (Dispute 

Resolution) of this Consent Decree. 

154. The Resolution of Claims provisions set forth in Section VIII shall survive 

termination ofthe Consent Decree. 

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XXVIII. SIGNATORIES/SERVICE 

155. Each of the undersigned representatives ofthe Parties certity that he or she is 

authorized to enter into terms and conditions of this Consent Decret: and to execute and bind 

legally such Party to this document. This Consent Decree 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. FINAL JUDGMENT 

156. Upon approval and entry of this Consent Decree by the Court, this Consent 

Decree shall constitute a final jUdgment in the above-captioned matter between the Plaintiffs and 

INVISTA. .,..4 

so ORDERED, THIS ~ DAY OF ,2009. 

65