IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) and ) ) STATE OF NEW MEXICO, ) STATE OF MONTANA ) ) Plaintiff-Intervenors, ) ) v. ) ) NAVAJO REFINING COMPANY, L.P. , ) MONTANA REFINING COMPANY ) ) Defendants. ) ) Civil No.

CONSENT DECREEi TABLE OF CONTENTS I. Jurisdiction and Venue (Paragraphs 1-3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 II. Applicability and Binding Effect (Paragraphs 4-8) ..............................7 III. Objectives (Paragraph 9) ..................................................9 IV. Definitions (Paragraph 10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 V. Affirmative Relief/Environmental Projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 11. NOx Emissions Reductions from FCCUs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 12. SO 2 Emissions Reductions from FCCUs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 13. PM Emissions Reductions from FCCUs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 14. CO Emissions Reductions from FCCUs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 15. NSPS Applicability of FCCU Regenerators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 16. NOx Emissions Reductions from Heaters and Boilers . . . . . . . . . . . . . . . . . . . . . . . 36 17. SO 2 Emissions Reductions from and NSPS Applicability of Heaters and Boilers . . 39 18. NSPS Applicability of and Compliance for Sulfur Recovery Plant . . . . . . . . . . . . . 40 19. NSPS Applicability of and Compliance for Flaring Devices . . . . . . . . . . . . . . . . . . 44 20. Control of Acid Gas Flaring Incidents and Tail Gas Incidents . . . . . . . . . . . . . . . . . 45 21. Control of Hydrocarbon Flaring Incidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 22. Benzene Waste NESHAP Program Enhancements . . . . . . . . . . . . . . . . . . . . . . . . . 56 23. Leak Detection and Re pair Program Enhancements . . . . . . . . . . . . . . . . . . . . . . . . . 76

24. Incorporation of Consent Decree Requirements into Federally-Enforceableii Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 25. Obtaining Construction Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 VI. Emission Credit Generation (Paragraph 26) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 VII. Modifications to Implementation Schedules (Paragraphs 27-28) . . . . . . . . . . . . . . . . . . 93 VIII. Environmentally Beneficial Projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 29. Compliance with NSPS Subpart QQQ at the Artesia and Lovington Refineries . . . 96 30. Operation of the 40 LTD Sulfur R ecovery Unit at Artesia on Hot Standby . . . . . . . 97 31. Installation of an Additional We t Gas Compressor at the Artesia FCCU . . . . . . . . 98 32. Community SEPs for Navajo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 33. Environmental Management Syst em Baseline Assessment for Navajo . . . . . . . . . . 99 34 - 36. General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 IX. Reporting and Recordkeeping (Paragraph 37) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 X. Civil Penalty (Paragraphs 38 - 41) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 XI. Stipulated Penalties (Paragraph 42) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 43. Paragraph 11 – Requirements for NOx Emission Reductions from FCCUs . . . . . 109 44. Paragraph 12 – Requirements for SO 2 Emission Reductions from FCCUs . . . . . . 110 45. Paragraph 13 – Requirements for PM Emission Reductions from FCCUs . . . . . . 112 46. Paragraph 14 – Requirements for CO Emission Reductions from FCCUs . . . . . . 113 47. Paragraph 16 – Requirements for NOx Emission Reductions from Heaters/Boilers114 48. Paragraph 17 – Requirements for SO 2 Emission Reductions from Heaters/Boilers 115 49. Paragraph 18 – Requirements for NSPS Applicability of Sulfur Recovery Plant . 116iii 50. Paragraph 19 – Requirements for NSPS Applicability of Flaring Devices . . . . . . 117 51. Paragraph 20 – Requirements for Contro l of AG Flaring and Tail Gas Incidents . 118 52. Paragraph 21 – Requirements for Control of HC Flaring Incidents . . . . . . . . . . . . 121 53. Paragraph 22 – Requirements for Benzene Waste NESHAP Enhancements . . . . . 122 54. Paragraph 23 – Requirements for Leak Detection and Re pair Enhancements . . . . 125 55. Paragraph 24 – Requirements to Inco rporate CD Require ments into Permits . . . . 127 56. Paragraphs 29-31 – Require ments related to Environmen tally Beneficial Projects 127 57. Paragraph 37 – Re quirements for Reportin g and Recordkeeping . . . . . . . . . . . . . . 129 58. Paragraphs 38-39 – Requirements for Paymen t of Civil Penalties . . . . . . . . . . . . . 129 59. Paragraph 60 – Requi rement to Escrow Stipulated Penalties . . . . . . . . . . . . . . . . . 130 60. Payment of Stipulated Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 61. Stipulated Penalties Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 XII. Interest (Paragraph 62) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 XIII. Right of Entry (Paragraph 63) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 XIV. Force Majeure (Paragraphs 64 - 72) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 XV. Retention of Jurisdiction/Dispute Resolution (Paragraphs 73 - 81) . . . . . . . . . . . . . . . 135 XVI. Effect of Settlement (Paragraph 82) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 XVII. General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 83. Other Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 84. Post-Permit Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 85. Failure of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148iv 86. Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 87. Post-Lodging/Pre-Entry Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 88. Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 89. Public Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 90. Public Notice and Comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 91. Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 92. Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 93. Paperwork Reduction Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 94. Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 XVIII. Termination (Paragraph 95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 XIX. Signatories (Paragraph 96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156v TABLE OF APPENDICES
Appendix A – May 10, 2001 NMED Complian ce Order to Navajo; July 27, 2001 NMED Compliance Order to Navajo Appendix B – List of Flaring Devices Appendix C – List of Controlled Heaters and Boilers Appendix D – Determining the Optimized Addition Rates of Low NOx Combustion Promotors and NOx Reducing Catalyst Additives at the Artesia FCCU Appendix E – NSPS Subpart J Compliance Schedule for Flares Appendix F – Logic Diagram for Paragraph 20 Appendix G – Summary of Reports, Plans a nd Certifications for the Benzene Waste NESHAP Enhanced Program Provisions of Paragraph 22 of the Consent Decree Appendix H – Summary of Reports, Plans a nd Certifications for the LDAR Enhanced Program Provisions of Paragr aph 23 of the Consent DecreeCONSENT DECREE WHEREAS, plaintiff the United St ates of America ("Plaintiff" or "the United States"), by the authority of the Attorney General of the United States and throug h its undersigned counsel, acting at the request and on be half of the United States E nvironmental Protection Agency ("EPA"), and plaintiff-intervenors the State of New Mexico and the State of Montana (“Plaintiff-Intervenors”) allege upon information and belief thatdefendants Navajo Refining Company, L.P. (“Navajo”) and Montana RefiningCompany (“Montana Refi ning”) have violated and/or continue to violate the requirements of the Clean Air Act, the New Mexico Air Quality Control Act, the Montana Clean Air Act, and th e regulations and permits promulgated thereunder at Navajo’s petroleum refineri es in Artesia, New Mexico, a nd Lovington, New Mexico, and at Montana Refining’s petroleum refinery in Great Falls, Montana (collectively “Covered Refineries”); WHEREAS, Navajo, Montana Refining, and their parent Holly Corporation (“Holly”) approached federal and state aut horities in an effort to resolve cooperatively the allegations and concerns raised; WHEREAS, the United States specifically alleges that Navajo and Montana Refining have violated and/or continue to violate the following statut ory and regulatory provisions: 1) Prevention of Significan t Deterioration ("PSD") requi rements found at Part C of Subchapter I of the Clean Air Act (the "Act"), 42 U.S.C. §§ 7475, and the regulations promulgated thereunder at 40 C.F.R. § 52.21 (t he "PSD Rules"); a nd “Plan Requirements for Non-Attainment Areas” at Part D of S ubchapter I of the Act, 42 U.S.C. §§ 7502-7503, and the regulations promul gated thereunder at 40 C.F. R. § 51.165(a) and (b) and at2 Title 40, Part 51, Appendix S, and at 40 C. F.R. § 52.24 (“PSD/NSR Regulations”), for heaters and boilers and fluid catalytic cracking unit catalyst regenerators for NOx, SO 2 , CO and PM; 2) New Source Performance Standards (“NSPS”) found at 40 C.F.R. Part 60, Subparts A and J, under Section 111 of the Act, 42 U.S.C. § 7411 (“Refinery NSPS Regulations”), for sulfur recovery plants, fuel gas combus tion devices, and fluid catalytic cracking unit catalyst regenerators; 3) Leak Detection and Repair (“LDAR ”) requirements promulgated pursuant to Sections 111 and 112 of the Act, and found at 40 C.F.R. Part 60 Subparts VV and GGG; 40 C.F.R. Part 61, Subparts J and V; and 40 C.F.R. Part 63, Subparts F, H, and CC (“LDAR Regulations”); and 4) National Emission Standard s for Hazardous Air Pollutant s (“NESHAP”) for Benzene Waste Operations promulgated pursuant to Section 112(e) of the Act, and found at 40 C.F.R. Part 61, Subpart FF (“Benz ene Waste NESHAP Regulations”). WHEREAS, the United States also specifically alleges with respect to the Covered Refineries that, upon information and belief, Navajo and Montana Refining have been and/or continue to be in violation of the state imple mentation plans (“SIPs”) and other state rules adopted by the states in which th e Covered Refineries are located to the extent that such plans or rules implement, adopt or incorporate the above-descr ibed Federal requirements;3 WHEREAS, the State of New Mexico and the St ate of Montana have sought to intervene in this matter alleging violations of their re spective applicable SIP pr ovisions and other state rules incorporating and implementing the foregoing federal requirements; WHEREAS, the New Mexico Environment De partment (“NMED”) issued a compliance order to Navajo on May 10, 2001 (“May 10, 2001 NMED Comp liance Order”) alleging numerous violations of emission limits at the fluid catalytic cracking unit at the Artesia Refinery, and issued another compliance order to Navajo on July 27, 2001 (“July 27, 2001 NMED Compliance Order”) alleging numer ous violations of the Refinery MACT at 40 C.F.R. Part 63, Subpart CC; WHEREAS, the May 10, 2001 NMED Compliance Order and the July 27, 2001 NMED Compliance Order are attached as Appendix A; WHEREAS, Navajo and Montana Refining ar e wholly-owned subsidiaries of Holly; WHEREAS, the United States, New Mexico, Montana, Navajo, Montana Refining, and Holly agree that the affirmative relief and environmental projects identified in Sections V and VIII of this Consent Decree w ill reduce annual emissions from th e Covered Refineries by the following amounts: 1) nitrogen oxide by a pproximately 245 tons; 2) sulfur dioxide by approximately 2350 tons; 3) volatile organic compounds by approximately 120 tons; and 4) particulate matter (“PM”) by approximately 102 tons; WHEREAS, with respect to the provisions of Paragraph 20 (“Control of Acid Gas Flaring Incidents and Tail Gas Incidents”) of this Consent Decree, EPA maintains that "[i]t is the intent of the proposed standard [40 C.F.R. § 60.104] thathydrogen-sulfide-rich gases exiting the amine4 regenerator [or sour water stripper gases] be directed to an appropriate recovery facility, such as a Claus sulfur plant," see Information for Proposed New Sour ce Performance Standards: Asphalt Concrete Plants, Petroleum Re fineries, Storage Vessels, S econdary Lead Smelters and Refineries, Brass or Bronze Ingot Production Pl ants, Iron and Steel Plants, Sewage Treatment Plants , Vol. 1, Main Text at 28; WHEREAS, EPA further maintains that the failure to direct hydrogen-sulfide-rich gases to an appropriate recove ry facility -- and instead to flare su ch gases under circumstances that are not sudden or infrequent or that are reasonabl y preventable -- circum vents the purposes and intentions of the standards at40 C.F.R. Part 60, Subpart J; WHEREAS, EPA recognizes that “Malfuncti ons,” as defined in Paragraph 10 of this Consent Decree and 40 C.F.R. § 60.2, of the “Sulfu r Recovery Plants” or of “Upstream Process Units” may result in flaring of “Acid Gas” or “Sour Water Stri pper Gas” on occasion, as those terms are defined herein, and that such flaring does not violate 40 C.F.R. § 60.11(d) if the owner or operator, to the extent practicable, maintain s and operates such units in a manner consistent with good air pollution control practice fo r minimizing emissions during these periods; WHEREAS, with respect to Paragraph 20 of the Consent Decree, Navajo and Montana Refining maintain that with respect to NSPS: (i) Flaring is not regulated with respect to sulfur dioxide emissions except for fl ares subject to 40 C.F.R. § 60.104(a)(1); and (ii) 40 C.F.R. § 60.104(a)(1) applies only to flares that are otherwise subject to NSPS and that are maintained to combust Acid Gases or Sour Water Stripper Gases on a conti nuous basis as a part of normal refinery operations;5 WHEREAS, EPA recognizes that the combustion in a flare subject to 40 C.F.R. § 60.104(a)(1) of process upset gases or fuel gas that is released to the flare as a result of relief valve leakage or other emergency malfuncti ons does not violate 40 C.F.R. § 60.104(a)(1); WHEREAS, by entering into this Consen t Decree Navajo and Montana Refining are committed to pro-actively resolving environmental concerns related to their operations, and Holly is committed to assist in these efforts; WHEREAS, discussions between the Parties and Holly have resulted in the settlement embodied in the Consent Decree; WHEREAS, Navajo and Montana Refining have waived any applicable federal or state requirements of statutory noti ce of the alleged violations; WHEREAS, Navajo and Montana Refining deni ed and continue to deny the violations alleged in the Complaint, the May 10, 2001 NM ED Compliance Order, and the July 27, 2001 NMED Compliance Order, and maintain that they have been and remain in compliance with all applicable statutes, regulations and permits and are not liable for civil penalties and injunctive relief. However, in the intere st of settlement and to accomplish their objectives of cooperatively reconciling the goals of the United States, New Mexico, Montana, Navajo, and Montana Refining under the Clean Air Act and the corollary state statutes, Navajo and Montana Refining have agreed to undertake the installation of ai r pollution control equipment and enhancements to their air pollution management practices at the th ree Covered Refineries to reduce air emissions; WHEREAS, notwithstanding the foregoing reservations, the Parties and Holly agree that: (a) settlement of the ma tters set forth in the complaint (filed herewith), the May 10, 2001 NMED6 Compliance Order, and the July 27, 2001 NMED Compliance Order, is in the best interests of the Parties, Holly, and the public; and (b) entry of the Consent Decree without litigation is the most appropriate means of resolving this matter; WHEREAS, the Parties and Holly recognize, and the Court by entering the Consent Decree finds, that the Consent D ecree has been negotiated at arms length and in good faith and that the Consent Decree is fair, reas onable, and in the public interest; NOW THEREFORE, with respect to the matters set forth in the complaint, the May 10, 2001 NMED Compliance Order, and the July 27, 2001 NMED Compliance Order, and in Section XVI of the Consent Decree (“Effect of Settlement”), and before the taking of any testimony, without adjudication of any issue of fact or law, and upon the consent and agreement of the Parties to the Consent Decree and Holly, it is hereby ORDERED, ADJUDGED and DECREED as follows:
I. JURISDICTION AND VENUE 1. This Court has jurisdiction over the subjectmatter of this action and over the Parties and Holly pursuant to 28 U.S.C. §§ 1331, 1345 and 1355. In addition, this Court has jurisdiction over the subject matter of this action pursuant to Sections 113(b) and 167 of the CAA, 42 U.S.C. § 7413(b) and 7477. The United States' compla int states a claim upon which relief may be granted for injunctive relief and civil penalties against Navajo and Montana Refining under the Clean Air Act. Authority to bring this suit is vested in the United States Department of Justice by 28 U.S.C. §§ 516 and 519, Section 305 of the CAA, 42 U.S.C. § 7605.7 2. Venue is proper in the District of New Mexico pursuant to Section 113(b) of the CAA, 42 U.S.C. § 7413(b), and 28 U.S.C. §§ 1391(b) and (c), and 1395(a). Navajo, Montana Refining, and Holly consent to the personal jurisdiction of this Court, waiv e any objections to venue in this District, and do not object to the intervention of New Mexico and Montana in this action. 3. Notice of the commencement of this action has been given to the State of New Mexico and the State of Montana in accordance with S ection 113(a)(1) of the Clean Air Act, 42 U.S.C. § 7413(a)(1), and as required by Section 113(b) of the CAA, 42 U.S.C. § 7413(b).
II. APPLICABILITY AND BINDING EFFECT 4. The provisions of the Consent Decree sh all apply to the Artesia Refinery, the Lovington Refinery, and the Great Falls Refinery . The provisions of the Consent Decree shall be binding upon the United States, the Plaintiff-Intervenors, Holly and its officers, successors and assigns, Navajo and its officers, successors, and assigns, and M ontana Refining and its officers, successors, and assigns. 5. Navajo, Montana Refining, and Holly agree not to contest the validity of the Consent Decree in any subsequent proceeding to implement or enforce its terms. 6. Effective from the Date of Entry of th e Consent Decree until its termination, Navajo agrees that its Artesia and Lovington Refineri es are covered by this Consent Decree, and Montana Refining agrees that its Great Falls Refinery is covered by this Consent Decree. Effective from the Date of Lodging of the C onsent Decree, Navajo or Montana Refining, as applicable, shall give wr itten notice of the Consent Decree to any successors in interest prior to the transfer of ownership or ope ration of any portion of any Covere d Refinery and shall provide a8 copy of the Consent Decree to any successor in interest. Navajo or Montana Refining, as applicable, shall notify the United States, the State of New Mexico, and the State of Montana in accordance with the notice provisions set forth in Paragraph 91 (Notice), of any successor in interest at least thirty (30) days prior to any such transfer. 7. Navajo or Montana Refining, as applicable , shall condition any transfer, in whole or in part, of ownership of, operati on of, or other interest (exc lusive of any non-controlling non-operational shareholde r interest) in, any Covered Refinery upon the execution by the transferee of a modification to the Consent Decr ee, which makes the term s and conditions of the Consent Decree that apply to such Covered Refinery applicable to the transferee. The Parties shall file that modification with the Court promptly upon such transfer. In the event of any such transfer of ownership or other interest in any Covered Refinery , Navajo or Montana Refining, as applicable, shall be released from the obligations and liabilities of this Consent Decree provided that, at the time of such transfer, the transferee has the financial and technical ability to assume and has contractually agreed with Navajo or Montana Refining, as applicable, to assume these obligations and liabilities. 8. Navajo and Montana Refining shall provide a copy of the applicable provisions of this Consent Decree to each consulting or contracting fi rm that is retained to perform work required under this Consent Decree, upon execution of any contract relating to such work. No later than thirty (30) days after the Date of Lodging of the Consent Decr ee, Navajo and Montana Refining also shall provide a copy of th e applicable provisions of this Consent Decree to each consulting or contracting firm that Navajo or Montana Re fining already has retained to perform the work9 required under this Consent Decree. Copies of the Consent Decree do not need to be supplied to firms who are retained to supply materials or equipment to satisfy requirements under this
Consent Decree.
III. OBJECTIVES 9. It is the purpose of the Parties and Ho lly in this Consent Decree to further the objectives of the federal Clean Air Act, the New Mexico Air Quality Control Act, and the Montana Clean Air Act.
IV. DEFINITIONS 10. Unless otherwise defined he rein, terms used in the Cons ent Decree shall have the meaning given to those terms in the Clean Air Act, and the implementing regulations promulgated thereunder. The following terms us ed in the Consent Decree shall be defined for purposes of the Consent Decree and the reports and documents submitted pursuant thereto as follows: A. “Acid Gas” shall mean any gas that cont ains hydrogen sulfide and is generated at a refinery by the regeneration of an amine solution. B. “Acid Gas Flaring” or “AG Flaring” sh all mean the combustion of Acid Gas and/or Sour Water Stripper Gas in a AG Flaring Device. C. “Acid Gas Flaring Device” or “AG Flaring Device” shall mean any device at the Covered Refineries that is used for the purpos e of combusting Acid Gas and/or Sour Water Stripper Gas, except facilities in which gases are combusted to pr oduce sulfur or sulfuric acid. The AG Flaring Devices currently in service at the Covered Refineries are identified in10 Appendix B to the Consent Decree. To the ex tent that, during the duration of the Consent Decree, any Covered Refinery utilizes AG Flaring Devices other than those specified in Appendix B for the purpose of combusting Acid Ga s and/or Sour Water Stripper Gas, those AG Flaring Devices shall be covered under this Consent Decree. The heaters and boilers at the Great Falls Refinery that currently are used to co mbust SWS gas shall not be deemed AG Flaring Devices for purposes of this Consent Decree. D. “Acid Gas Flaring Incident” or “AG Fl aring Incident” shall mean the continuous or intermittent combustion of Acid Gas and/or Sour Water Stripper Gas that results in the emission of sulfur dioxide equal to, or in excess of, five-hundred (500) pounds in any twenty-four (24) hour period; provided, however, that if five-hundred (500) pounds or more of sulfur dioxide have been emitted in a twenty-four (24) hour period and Flaring continues into subsequent, contiguous, non-overlapping twenty -four (24) hour period(s), eachperiod of which results in emissions equal to, or in exce ss of five-hundred (500) pounds of sulfur dioxide, then only one AG Flaring Incident shall have occurred. Subs equent, contiguous, non-ove rlapping periods are measured from the initial commencement of Flaring within the AG Flaring Incident. E. “Alternative NOx Control Technology” shall mean NOx control technology, other than current or Next Generation Ultra Low NOx Burners (“ULNBs”), that achieves an emission rate of 0.060 lb/mmBTU or less. F. “Applicable Federal and State Agencies” shall mean, with respect to the Artesia and Lovington Refineries, EPA’s Office of Regulatory Enforcement, EPA’s Region 6, and the NMED; and with respect to the Great Falls Refinery, EPA’s Office of Regulatory Enforcement, EPA’s Region 8, and the Montana DEQ;11 G. “Artesia Refinery” shall mean the refine ry owned and operated by Navajo in Artesia, New Mexico. H. "Calendar quarter" shall mean the three month period ending on March 31st, June 30th, September 30th, and December 31st. I. “CEMS” shall mean continuous emissions monitoring system. J. “Consent Decree” or “Decree” shall mean this Consent Decree, including any and all appendices attached to the Consent Decree. K. “Controlled Heaters and Boilers” shall mean the heaters and boilers that are listed in Appendix C. L. “Covered Refineries” shall mean the refine ries that are subject to the requirements of this Consent Decree: the Artesia Refinery, the Great Falls Refinery, and the Lovington Refinery. M. “CO” shall mean carbon monoxide. N. "Date of Lodging of the Consent Decree" shall mean the date the Consent Decree is filed for lodging with the Clerk of the Court for the United States District Court for the District of New Mexico. O. "Date of Entry of the Consent Decree" shall mean the date the Consent Decree is approved or signed by the Unite d States District Court Judge. P. "Day" or "Days" as used hereinshall mean a calendar day or days. Q. “FCCU” as used herein shall mean a fluidized catalytic cracking unit and its regenerator and associated CO boiler(s) where present. R. “Flaring Device” shall mean either an AG and/or an HC Flaring Device. S. “Fuel Oil” shall mean any liquid fossil fu el with sulfur content of greater than 0.05% by weight.12 T. “Great Falls Refinery” shall mean th e refinery owned and operated by Montana Refining in Great Falls, Montana. U. “Holly” shall mean the Holly Corporation, its successors and assigns, and its officers, directors, and employees in their capacities as such. V. “Hydrocarbon Flaring” or “HC Flaring” shall mean the combustion of refinery-generated gases, except for Acid Gas a nd/or Sour Water Stripper Gas and/or Tail Gas, in a Hydrocarbon Flaring Device. W. “Hydrocarbon Flaring Device” or “HC Fl aring Device” shall mean, a flare device used to safely control (through combustion) any excess volume of a refine ry-generated gas other than Acid Gas and/or Sour Water Stripper Off Gas and/or Tail Gas. The HC Flaring Devices currently in service at the C overed Refineries are identified in Appendix B to the Consent Decree. To the extent that, during the durati on of the Consent Decree, any Covered Refinery utilizes HC Flaring Devices other than those specified in Appendix B for the purpose of combusting any excess of a refinery-generated gas other than Acid Ga s and/or Sour Water Stripper Gas, those HC Flaring Devices sh all be covered under th is Consent Decree. X. “Hydrocarbon Flaring Incident” or “HC Flaring Incident” shall mean the continuous or intermittent flaring of refinery-generated gases, except for Acid Gas or Sour Water Stripper Gas or Tail Gas, at a Hydrocarbon Flaring Device th at results in the emission of sulfur dioxide equal to, or greater than five hundred (500) pounds in a 24-hour period; provided, however, that if five-hundred (500) pounds or mo re of sulfur dioxide have b een emitted in a twenty-four (24) hour period and Flaring continues into subs equent, contiguous, non-ove rlapping twenty-four (24) hour period(s), each period of which results in emissions equal to, or in excess of five-hundred (500) pounds of sulf ur dioxide, then only one HC Flaring Incident shall have13 occurred. Subsequent, contiguous, non-overlapping periods are measured from the initial commencement of Flaring within the HC Flaring Incident. Y. “Lovington Refinery” shall mean the refinery owned and ope rated by Navajo in Lovington, New Mexico. Z. “Low NOx Combustion Promotor” shall me an a catalyst that is added to a FCCU or an RCCU that minimizes NOx emissions while maintaining its effectiveness as a combustion promotor. AA. “Malfunction” shall mean, as speci fied in 40 C.F.R. Part 60.2, “any sudden, infrequent, and not reasonably prev entable failure of air polluti on 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 carele ss operation are not malfunctions.” BB. “Montana DEQ” shall mean the Montana Department of Environmental Quality and any successor departments or agencies of the State of Montana. CC. “Montana Refining” shall mean the Montana Refining Company, its successors and assigns, and its officers, directors, and employees in their capacities as such. DD. “Navajo” shall mean the Navajo Re fining Company, L.P., its successors and assigns, and its officers, directors, and employees in their capacities as such. EE. “NMED” shall mean the New Mexico Environment Departme nt and any successor departments or agencies of the State of New Mexico. FF. “Next Generation Ultra-Low NOx Burn ers” or “Next Generation ULNBs” shall mean those burners new to the market that are designed to ach ieve a NOx emission rate of 0.012 to 0.020 lb/mmBTU HHV when firing natural gas at 3% stack oxygen at full design load without air preheat.14 GG. “NOx” shall mean nitrogen oxides. HH. “NOx Additives” shall mean Low NOx Combustion Promotors and NOx Reducing Catalyst Additives. II. “NOx Control Technology” shall mean Next Generation ULNBs or Alternative NOx Control Technology. JJ. “NOx Reducing Catalyst Additive” shall mean a catalyst additive that is introduced to an FCCU or an RCCU to reduce NOx emissions through reduction or controlled oxidation of intermediates. KK. “Paragraph” shall mean a portion of th is Consent Decree identified by an arabic numeral. LL. “PM” shall mean particulate matter. MM. "Parties" shall mean the United States, the Plaintiff-Intervenors, Navajo, and Montana Refining. NN. “Plaintiff-Intervenors” shall mean the State of New Mexico and the State of
Montana. OO. “Pollutant Reducing Catalyst Additive” shall mean either a NOx Reducing Catalyst Additive or a SO 2 Reducing Catalyst Additive. PP. “Root Cause” shall mean the primary cause(s) of an AG Flaring Incident(s), Hydrocarbon Flaring Incident, or a Tail Gas Inci dent(s) as determined through a process of investigation QQ. “Scheduled Maintenance” shall mean any shutdown of any emission unit or control equipment that Navajo or Montan a Refining schedules at least f ourteen (14) days in advance of the shutdown for the purpose of undertaking main tenance of such unit or control equipment.15 RR. “Shutdown” shall mean the cessation of operation of equipment for any purpose. SS. “Sour Water Stripper Gas” or “SWS Gas” shall mean the gas produced by the process of stripping refinery sour water.
TT. “SO 2 Reducing Catalyst Additive” shall mean a catalyst additive that is introduced to an FCCU or an RCCU to reduce SO 2 emissions by reduction and adsorption. UU. “Startup” shall mean the setting in operation of equipment for any purpose.
VV. “SO 2 " shall mean sulfur dioxide. WW. “Sulfur Recovery Plant” or “SRP” shall mean a pro cess unit that recovers sulfur from hydrogen sulfide by a vapor phase catalytic reaction of sulfur dioxide and hydrogen sulfide. XX. “Tail Gas Unit” or “TGU” shall mean a control system utilizing a technology for reducing emissions of sulfur compounds from a Sulfur Recovery Plant. YY. “Tail Gas Incident” shall mean, for th e purpose of this Consent Decree, combustion of Tail Gas that either is: i. Combusted in a flare and re sults in 500 pounds or more of SO 2 emissions in any 24 hour period ; or ii. Combusted in a thermal incinerator and results in excess emissions of 500 pounds or more of SO 2 emissions in any 24-hour period. Only those time periods which are in excess of a SO 2 concentration of 250 ppm (rolling twelve-hour average) shall be used to deter mine the amount of excess SO 2 emissions from the incinerator. Navajo and Montana Refining shall use engin eering judgment and/or other monitoring data during periods in which the SO 2 continuous emission analyzer has exceeded the range of the instrument or is out of service.16 ZZ. “Total Catalyst” shall mean all forms of catalyst added to the FCCU, including but not limited to base catalyst and equilibrium catalyst, but excluding Pollutant Reducing Catalyst Additive. AAA. “Torch Oil” shall mean FCCU feedstock or light cycle oil that is combusted in the FCC regenerator to assist in starting up or restarting the FCCU. BBB. “Upstream Process Units” shall mean all amine contactors, amine scrubbers, and sour water strippers at the Covere d Refineries, as well as all proce ss units at these refineries that produce gaseous or aqueous waste streams thatare processed at amine contactors, amine scrubbers, or sour water strippers. CCC. “Weight % Pollutant Reducing Catalyst Additive Rate” shall mean: Amount of PollutantReducing Catalyst Additive in Pounds per Day Amount of Total Cata lyst added x 100% in Pounds per Day

V. AFFIRMATIVE RELIEF/ENVIRONMENTAL PROJECTS
11. NOx Emissions Reductions from FCCUs. A. Summary . Navajo and Montana Refining sha ll implement a program to reduce NOx emissions from Fluid Catalytic Cracking Units (“FCCUs”) at the Artesia Refinery (“Artesia FCCU”) and the Great Falls Refinery (“Great Falls FCCU”) by the use of NOx Reducing Catalyst Additives and Low NOx Combustion Prom otors at each of these FCCUs. Navajo and Montana Refining shall incorporate lower NOx emission limits into permits and will demonstrate future compliance with the lower emission limits through the use of CEMS. B. Optimization Period for Navajo .17 i. Overview of Optimiza tion Period for Navajo . In order to establish lower FCCU NOx emission limits at the Artesia FCCU, there shall be a NOx Reducing Catalyst Additive Optimization Period (“Optimization Period”) and a NOx Reducing Catalyst Additive Demonstration Period (“De monstration Period”). During th e Optimization Period, Navajo shall, in the following order: (1) establish an optimized Low NOx Combustion Promotor addition rate (“Optimized Addition Rate”) for use during the Demonstration Period; (2) run a series of short-term trials on all commercially-available NOx Reducing Catalyst Additives, up to a maximum of four; (3) select, with EPA appr oval, an EPA-Approved NOx Reducing Catalyst Additive to be used during the Demonstration Period; and (4) establish an Optimized Addition Rate for the EPA-Approved NOx Reducing Catalyst Additive to be used during the Demonstration Period. ii. Commencement of the Optimization Period. The Optimization Period at the Artesia FCCU will commen ce by no later June 30, 2004. iii. Protocol for the Optimization Period . By no later than 60 days prior to the commencement of the Optimization Period, Nava jo shall submit to EPA and the NMED a protocol for the Optimization Peri od that describes, at a minimum, the methods that Navajo will use to calculate control effectiveness ( pounds NOx reduced per pound of additive), cost effectiveness (dollars per ton of NOx reduced), baseline emissions, and percent additive added.
iv. Baseline Data . By no later than 30 days after the commencement of the Optimization Period, Navajo sha ll submit to EPA and NMED ba seline data from the period between January 1, 2004, through June 30, 2004, for th e Artesia FCCU that shall include, at a minimum, the following data on a daily average basis: a. Regenerator flue gas temperature;18 b. Coke burn rate; c. FCCU feed rate; d. FCCU feed API gravity; e. Percentage of each type of FCCU f eed component (i.e. atmospheric gas oil, vacuum gas oil, atmospheric tower bottoms, vacuum tower bottoms, etc.); f. Percentage by volume of the F CCU feed that is hydrotreated; g. Total Catalyst addition rate;19 h. NOx Reducing Catalyst Additive, conve ntional combustion promotor addition rates, and/or Low NOx Combusti on Promotor add ition rates; and i. Hourly and daily SO 2 , NOx, CO and O 2 concentrations. Commencing on January 2, 2004, Navajo shall also monitor and record, for a period of 30 days, the daily FCCU feed nitrogen content. If, after 30 days, the variability of the feed nitrogen content is less than one standard deviation from the mean, then Navajo may commence monitoring and recording the FCCU feed nitrog en content through daily sampling composited on a weekly basis for the rema inder of the baseline period. v. Determining the Optimi zed Low NOx Combustion Promotor Addition Rate . Navajo shall comply with Section II of Appendix D in order to establish an Optimized Low NOx Combustion Promotor Addition Ra te. By no later than 60 days prior to the commencement of the Optimization Period, Navajo shall notify EPA and the NMED in writing of which Low NOx Combustion Promotor it intends to use in the Optimization Period. During the 60 days prior to the commencement of the Optimization Period, Navajo will undertake the first step in the process of determining an Optimized Addition Rate for the Low NOx Combustion Promotor by reducing historical usage of conve ntional combustion promotor to the point that the addition rate of the conventional combustion pr omotor is the minimum necessary to retain effectiveness. Thereafter, at the commencement of the Optimization Period, Nava jo will replace its conventional combustion promotor with Low NOx Combustion Promotor in accordance with the protocol set forth in Section II of Appendix D, and shall comply with the terms of Section II of Appendix D until the Optimized Low NOx Combustion Promotor Addition Rate is established.20 vi. Selecting the NOx Reducing Catalyst Additive to be Used During the Optimization Period . The objective of this Paragraph 11.B.vi is to select the best-performing, commercially-available NOx Reducing Catalyst Additive for the Artesia FCCU. a. Identification of Co mmercially-Ava ilable Products . By no later than 60 days before the commencement of the Optimization Period, Navajo shall notify EPA in writing of all of the NOx Reducing Catalyst Additives that are commercially-available for use in the Artesia FCCU. With this notification, Nava jo shall submit to EPA for approval the identity of all commercially-available NOx Reducing Catalyst Additives, up to a maximum of four, that Navajo proposes to use for the short-term trials se t forth in Paragraph 11.B.vi.b. A copy of this notification shall be submitted to the NMED. Unless, within 15 days prior to beginning the trials of the potential NOx Reducing Ca talyst Additives, EPA objects to one or more of the products identified, Navajo shall commence the short-term trial period. If EPA objects to any of the proposed products, EPA and Navajo shall confer until agreement is reached on the identity of the products to be used during the trial period. The NOx Reducing Catalyst Additives selected for the trial runs shall be called the “EPA-Approved, Potential NOx Reducing Catalyst Additives.” b. Short-Term Trials of Each EPA- Approved, Potential NOx Reducing Catalyst Additive . Navajo shall add, on a tr ial basis for a period of tw o weeks, each EPA-Approved, Potential NOx Reducing Catalyst Additive to the Artesia FCCU. Navajo shall commence the trial runs of each EPA-Approve d, Potential NOx Reduc ing Catalyst Additive immediately after establishing, pursuant to Paragraph 11.B.v., the Optimized Low NOx Combustion Promotor Addition Rate. After completion of all two-week trial periods, Navajo shall submit to EPA for approval a report that sets forth the NOx Reducing Catalyst Additiv e that Navajo proposes to use21 during the Demonstration Period based on performance capabilities. This report also shall set forth the reasons for this selection. A copy of this report shall be submitted to the NMED. c. Selection of the EPA-Approved NOx Reducing Catalyst Additive . EPA may approve the NOx Reducing Catalyst Additive that Navajo proposes to use or may require Navajo to use a different product. The NOx Reducin g Catalyst Additive selected af ter the trials occur and after EPA approves the final selec tion shall be called the “EPA -Approved NOx Reducing Catalyst Additive.” Disputes involving the selecti on of the EPA-Approved NOx Reducing Catalyst Additive shall be resolved in accordance with th e dispute resolution provi sions of the Consent
Decree. vii. Determining the Optimized NOx Re ducing Catalyst Additive Addition Rate . After selection of an EPA-Approved NOx Reducing Catalyst Additive, Navajo shall comply with Section III of Appendix D in order to establish an Op timized Addition Rate for use during the Demonstration Period. C. Optimization Peri od for Montana Refining . i. Overview of the Optimizati on Period for Montana Refining . In order to establish lower FCCU NOx emission limits at the Great Falls FCCU, there shall be an Optimization Period and a Demonstration Peri od. During the Optimization Period, Montana Refining shall: (1) determine whether the conversion from a c onventional combustion promotor to a Low NOx Combustion Promotor at the Optimized Addition Rate set forth herein will be effective in continuing to promote combustion; (2) run s hort-term trials on two NOx Reducing Catalyst Additives to identify the best-performing pr oduct; and (3) select, with EPA-Approval, an EPA-Approved NOx Reducing Catalyst Additive to be used during the Demonstration Period.22 ii. Commencement of the Optimization Period . The Optimization Period at the Great Falls FCCU will commence no later than 18 months after the Lodging of the Consent Decree. iii. Optimized Low NOx Combustion Promotor Addition Rate . By no later than 60 days prior to the commencement of the Optimiza tion Period, Montana Refining shall notify EPA and the Montana DEQ in writing of which Low NOx Combustion Promotor Montana Refining intends to use in the Optimization Period, and the method and frequency of addition. At the commencement of the Optimization Period, Montan a Refining shall replace its conventional combustion promotor with Low NOx Combustion Promotor at a rate and frequency of addition that is the functional equivale nt of the average rate of its use of conventional combustion promotor in the preceding three months. This functionally-equivalent rate shall be the Optimized Low NOx Combustion Promotor Addition Rate . During the Optimization Period, Montana Refining shall determine whether, at the Optimized Addition Rate, the Low NOx Combustion Promotor is effective by evaluating: (1) whether afterburn is c ontrolled and regenerator temperature and combustion levels are adequately maintained; and (2) whether temperature excursions are brought under control adequately . If the Low NOx Combustion Promotor is not effective, Montana Refining sh all not be required to use Low NOx Combustion Promotor during the Demonstration Period. iv. Selection of the NOx Reducing Cataly st Additive to be Used During the Optimization Period . The objective of this provision is to select the best-performing, commercially-available NOx Reducing Catalyst Additive for the Great Falls FCCU. a. Identification of Co mmercially-Ava ilable Products . By no later than 60 days before the commencement of the Optimization Period, M ontana Refining shall notify EPA and the Montana DEQ in writing of two commercially-available NOx Reducing Catalyst Additives that23 Montana Refining proposes to use for the shor t-term trials set forth in Paragraph 11.C.iv.b. Unless, within 15 days prior to beginning the trial of the potential NOx Reducing Catalyst Additives, EPA objects to one or more of th e products identified, Montana Refining shall commence the short-term trial period. If EPA objects to any of the proposed products, EPA and Montana Refining shall confer until agreement is reached on the identity of the products to be used during the trial period. The NOx Reducing Catalyst Additives selected for trial runs shall be called the “EPA-Approved, Potential NOx Reducing Catalyst Additives.” b. Short-Term Trials of Each EPA- Approved, Potential NOx Reducing Catalyst Additive . Montana Refining shall add, on a tria l basis for a period of two weeks, each EPA-Approved, Potential NOx Reducing Catalyst Additive to the Great Falls FCCU. Montana Refining shall commence the trial runs of each EPA-Approved, Potential NOx Reducing Catalyst Additive immediately after dete rmining, pursuant to Paragraph 11.C.iii., whether Low NOx Combustion Promotor is effectiv e. After completion of the tw o-week trial periods, Montana Refining shall submit to EPA for approval a report that sets forth the NOx Reducing Catalyst Additive that Montana Refining proposes to use during the Demonstr ation Period based on performance capabilities. This report also shall set forth the reasons for this selection. A copy of this report shall be submitted to the Montana DEQ. c. Selection of the EPA-Approved NOx Reducing Catalyst Additive . EPA may approve the NOx Reducing Catalyst Additive that Mont ana Refining proposes to use or may require Montana Refining to use a differe nt product. The NOx Reducing Ca talyst Additive selected after the trials occur and after EPA approves the fi nal selection shall be called the “EPA-Approved NOx Reducing Catalyst Additive.” Disputes i nvolving the selection of the EPA-Approved NOx24 Reducing Catalyst Additive sha ll be resolved in accordance with the dispute resolution provisions of the Consent Decree. v. Optimized NOx Reducing Cata lyst Additive Addition Rate . The Optimized Addition Rate of the EPA-Approved NOx Reducing Catalyst Additive to be used during the Demonstration Period at the Great Falls FCCU shall be 2.0 Weight % NOx Reducing Catalyst Additive.
D. Demonstration Period for N avajo and Montana Refining.
i. Commencement of NOx Additi ve Performance Demonstration . Navajo and Montana Refining will demonstrate the performance of the EPA-Approved NOx Reducing Catalyst Additive and Low NOx Combustion Promotor (collectively, “NOx Additives”) over a twelve-month period to yield the lowest NOx c oncentration feasible from the FCCUs at the Optimized NOx Reducing Catalyst Additive Addition Rate and the Optimized Low NOx Combustion Promotor Addition Rate (collectively “Optimized NOx Additive Addition Rates”). During the Demonstration Period, Navajo and Montana Refining will add NOx Additives at the Optimized NOx Additive Addition Rates and in a manner that minimizes NOx emissions. Navajo will commence the Dem onstration Period by no later than March 31, 2005. Montana Refining will commence the Demonstration Period by no later than 24 months after the Date of Lodging of this Consent Decree. The commen cement of these Demonstration Periods may be delayed if Navajo and/or Montana Refining seeks in writing, and EPA approves in writing, additional time for selecting an EPA-Approved NOx Reducing Catalyst Additive or determining the Optimized NOx Additive Addition Rates. ii. Notification of Optimized NOx Addi tive Addition Rate and Compliance with Appendix D . By no later than 30 days prior to begi nning the Demonstration Period: (i) Navajo25 will notify EPA and the NMED of the Optimized NOx Additive Addition Rates for the Artesia FCCU with an explanation a nd supporting data that demonstr ates that the requirements of Appendix D have been met in establishing the Optimized NOx Additive Addition Rates; and (ii) Montana Refining will notify EPA and the Montana DEQ about whether the Low NOx Combustion Promotor was effec tive, and if not, an explan ation and supporting data that demonstrates that it was ineffective. iii. Measuring NOx and O 2 . During the Demonstrati on Period, Navajo and Montana Refining will determine the NOx and O 2 concentrations at the point of emission to the atmosphere by CEMS.
iv. NOx Additive Performance De monstration Report (“NOx Additive Demonstration Report”) . No later than 60 days after the completion of the Demonstration Period, Navajo and Montana Refini ng will report the results to th e Applicable Federal and State Agencies (“NOx Additive Demonstration Report”). The NOx Additive Demonstration Report shall include, at a minimum, the NOx and O 2 CEMS data recorded during the twelve month Demonstration Period and each of the parameters required to be reported in Paragraph 11.B.iv, except for the daily FCCU feed nitrogen content, on a daily average basis for the twelve month Demonstration Period. E. Establishing FCCU NOx Emission Limits . i. Navajo and Montana Refining NOx Emission Limits Proposals . In each NOx Additive Demonstration Report, Na vajo and Montana Refining sh all propose, for the applicable FCCU, a concentration-based (ppmvd) NOx emission limit base d on 3-hour rolling and 365-day rolling averages, corrected to 0% oxygen. Navajo and Montana Refining shall comply with the emission limits they each propose beginning imme diately upon submission of the NOx Additive26 Demonstration Report. Navajo and Montana Refining shall continue to comply with these limits unless and until they are required to comply with the emissions limits set by EPA pursuant to Paragraph 11.E.ii. Under no circumstances sh all this emission limit for the Artesia FCCU be greater than a concentration-based limit th at would be equivalent to 34.9 lb/hr.
ii. EPA’s NOx Emission Limits . EPA will use the data collected about each FCCU during the baseline period, the Op timization Period, and the Demonstr ation Period, as well as all other available and rele vant information, to establish limits for NOx emissions from the Artesia and Great Falls FCCUs. EPA may establish NOx concentration-based emission limits based on 3-hour rolling and 365-day rolling averages, each co rrected to 0% oxygen. EPA will determine the limits based on: (i) the level of performance during the baseline, Optimization and Demonstration periods; (ii) a reasonable certainty of compliance; and (iii) any other available and relevant information. Under no circumstances shall this emission limit for the Artesia FCCU be greater than a concentration-ba sed limit that would be equivalent to 34.9 lb/hr. EPA will notify Navajo and Montana Refining of its determination of the c oncentration-based NOx emissions limit and averaging times for each FCCU. Navajo and Montana Refining shall immediately (or within thirty (30) days, if EPA’s limit is more stringent than the limit proposed by Navajo or Montana Refining) operate each FCCU so as to comply with the EPA-established emission limits. Disputes regarding the appropriate emission limits shall be resolved in accordance with the dispute resolution provisions of this Decr ee; provided however, that during the period of dispute resolution, Navajo and Montana Refining shall comply with the EPA-established limits. F. Demonstrating Compliance with EPA-Established FCCU NOx Emission Limits

. By no later than December 31, 2003, for Navajo and no later than 12 months from the Date of Lodging for Montana Refining, Navajo and Montan a Refining shall install and use a NOx and O 227 CEMS to monitor performance of each F CCU during the baseline, Optimization, and Demonstration periods, and to re port compliance with the terms and conditions of this Consent Decree. Navajo and Montana Refining shall ma ke CEMS and process data available to the Applicable Federal and State Agencies upon de mand as soon as practicable. Navajo and Montana Refining shall install, certify, calibrate, maintain, and operate all CEMS required by this Consent Decree in accordance with the requi rements of 40 C.F.R. §§ 60.11, 60.13 and Part 60 Appendix A, and the applicable performance speci fication test of 40 C.F.R. Part 60 Appendices B and F. These CEMS will be used to demonstrate compliance with emission limits. G. Hydrotreater Outages . The 3-hour FCCU NOx emissi on limits established pursuant to this Paragraph 11 shall not a pply during periods of hydrotreat er outages at the Artesia and Great Falls Refineries, provide d that Navajo and Montana Re fining are maintaining and operating their FCCUs (including associated air pollution control equipment) in a manner consistent with good air pollution control prac tices for minimizing emissions in accordance with an EPA-approved good air pollution control practices plan. No later than one hundred and eighty (180) days after the Date of L odging of this Consent Decree, Navajo and Montana Refining shall submit to EPA for approval a plan to minimize NOx emissions from their FCCUs (including associated air pollution control equipment) during hy drotreater outages. Copi es of this plan shall be provided to the Applicable State Agencies. Navajo and Montana Refining shall comply with the plan at all times, including periods of star tup, shutdown, and malfuncti on of the hydrotreater. Modifications to the plan shall be summarized in an annual submission to the Applicable Federal and State Agencies.
12. SO 2 Emissions Reductions from FCCUs

.28 A. Summary . Navajo and Montana Refining sh all implement a program to reduce SO 2 emissions from their FCCUs by the installati on and operation of one new Wet Gas Scrubber (“WGS”) at the Artesia FCCU and by the use of SO 2 Reducing Catalyst Additives at the Great Falls FCCU. Navajo and Montana Re fining shall incorporate lower SO 2 emission limits into permits and will demonstrate future compliance with the lower emissions limits through the use of CEMS. B. Installation and Operation of WGS on the Artesia FCCU . By no later than December 31, 2003, Navajo shall co mplete installation and sha ll begin operation of a WGS on emissions from the Artesia FCCU. Navajo shall design the WGS to achieve an SO 2 concentration of 25 ppmvd or lower on a 365-day rolling average basis and 50 ppmvd on a 7-day rolling average basis, each corrected to 0% ox ygen. By no later than December 31, 2003, Navajo shall comply with an SO 2 concentration limit of 25 ppmvd or lower on a 365-day rolling average basis and 50 ppmvd on a 7-day rolling average basis, each corrected to 0% oxygen.
C. Utilization of SO 2 Reducing Catalyst Additive at the Great Falls FCCU

. i. Overview of Selection and Demonstration Periods . In order to establish lower
FCCU SO 2 emission limits at the Great Falls FCCU, there shall be a SO 2 Reducing Catalyst Additive Selection Period (“Selection Period”) and a SO 2 Reducing Catalyst Additive Demonstration Period (“ Demonstration Period”).
ii. Selection Period. By no later than 18 months after the Lodging of this Consent Decree, Montana Refining shall notify EPA and the Montana DEQ in writing of the SO 2 Reducing Catalyst Additive that Montana Refini ng proposes to use during the Demonstration Period. EPA may approve the SO 2 Reducing Catalyst Additive th at Montana Refining proposes to use or may require Montana Refining to use a different product. The SO 2 Reducing Catalyst29 Additive selected after EPA approval shall be called the “EPA-Approved SO 2 Reducing Catalyst Additive.” Disputes involving th e selection of the EPA-Approved SO 2 Reducing Catalyst Additive shall be resolved in accordance with th e dispute resolution provi sions of the Consent
Decree.
iii. Demonstration Period. a. Commencement of SO 2 Reducing Catalyst Additive Performance Demonstration

. Montana Refining will demonstrate the performance of the EPA-Approved SO 2 Reducing Catalyst Additive over a twelve-month period to yield the lowest SO 2 concentration feasible from the Great Falls FCCU at an addition rate of 8.0 Weight % SO 2 Reducing Catalyst Additive (“Optimized Addition Rate”). During the Dem onstration Period, Montan a Refining will add SO 2 Reducing Catalyst Additives at the Optimized Addition Rate and in a manner that minimizes SO 2 emissions. Montana Refining will commence the Demonstration Period by no later than 24 months after the Date of Lodging of this Consent Decree. The commencement of this Demonstration Period may be delayed if Montana Refining seeks in writing, and EPA approves in writing, additional time for selecting an EPA-Approved SO 2 Reducing Catalyst Additive. b. Continued Operation of Hydrotreater . Montana Refining shall not cease the operation of its hydrotreater during th e Demonstration Period, except for Malfunctions or catalyst change-outs. c. Measuring SO 2 and O 2 . During the Demonstration Period, Montana Refining will determine the SO 2 and O 2 concentrations at the point of e mission to the atmosphere by CEMS. d. SO 2 Reducing Catalyst Additive Performance Demonstration Report (“SO 2 Reducing Catalyst Additive Demonstration Report”) . No later than 60 days after the completion of the Demonstration Period, Montana Refi ning will report the results to the Applicable Federal and30 State Agencies (“SO 2 Reducing Catalyst Additive Demonstration Report”). The SO 2 Reducing Catalyst Additive Demonstration Report shall include, at a minimum, the SO 2 and O 2 CEMS data recorded during the twelve month De monstration Period and the following: (1) Regenerator flue gas temperature; (2) Coke burn rate; (3) FCCU feed rate; (4) FCCU feed API gravity; (5) FCCU feed sulfur content; (6) Percentage of each type of FCCU f eed component (i.e. atmospheric gas oil, vacuum gas oil, atmospheric tower bottoms, vacuum tower bottoms, etc.); (7) Percentage by volume of the F CCU feed that is hydrotreated; (8) Total Catalyst addition rate; (9) SO 2 Reducing Catalyst Additive addition rates; and (10) Hourly and daily SO 2 , NOx, CO and O 2 concentrations.31 iv. Establishing FCCU SO 2 Emission Limits at the Great Falls FCCU . a. Montana Refining SO 2 Emission Limits Proposals . In the SO 2 Reducing Catalyst Additive Demonstration Report, Montana Refining shall propose, for the Great Falls FCCU, a concentration-ba sed (ppmvd) SO 2 emission limit based on 7-day rolling and 365-day rolling averages, each corrected to 0% oxygen. In proposing the 7-day rolling average limit, Montana Refining shall not consider any emissions during the Demonstration Period in which the hydrotreater was shut down. M ontana Refining shall comply with the emission limits it proposes beginning immediately upon submission of the SO 2 Reducing Catalyst Additive Demonstration Report. Montana Refining shall continue to comply with these limits unless and until it is required to comply with the emissions limits set by EPA pursuant to Paragraph 12.C.iv.b. b. EPA’s SO 2 Emission Limits. EPA will use the data collected about the Great Falls FCCU during the Demonstration Pe riod, as well as all other availa ble and relevant information, to establish limits for SO 2 emissions from the Great Falls FCCU. EPA may establish SO 2 concentration-based emission limits based on 7-day rollin g and 365-day rolling averages, each corrected to 0% oxygen. EPA will determine the limits based on: (i) the level of performance during the Demonstration Period; (ii) a reasonable certainty of compliance; and (iii) any other available and relevant in formation. EPA will notify Montana Refi ning of its dete rmination of the concentration-based SO 2 emissions limit and averaging times for the FCCU. Montana Refining shall immediately (or within thirty (30) days, if EPA’s limit is more stringent than the limit proposed by Montana Refining) operate its FCCU so as to comply with the EPA-established emission limits. Disputes regarding the appropriate emission limits shall be resolved in accordance with the dispute resolution provisions of this Decree; provided however, that during the period of dispute resolution, Montana Refining shall comply with the EPA-established limits.32 D. Demonstrating Compliance with FCCU SO 2 Emission Limits . By no later than December 31, 2003, for Navajo, and no later than 12 months from the Date of Lodging for Montana Refining, Navajo and Montana Refining shall install and use a SO 2 and O 2 CEMS to monitor performance of each FCCU and to repor t compliance with the terms and conditions of this Consent Decree. Navajo and Montana Refining shall make CEMS and process data available to the Applicable Federal and Stat e Agencies upon demand as soon as practicable. Navajo and Montana Refining shall install, certify, calibrate, maintain, and operate all CEMS required by this Consent Decree in accordan ce with the requirements of 40 C.F.R. §§ 60.11, 60.13 and Part 60 Appendix A, and the applicable performance specification test of 40 C.F.R. Part 60 Appendices B and F. These CEMS will be used to demonstrate compliance with emission limits. E. Hydrotreater Outages . The 7-day FCCU SO 2 emission limits established pursuant to Paragraph 12.C.iv. shall not a pply during periods of hydrotreat er outages at the Great Falls Refinery, provided that Montana Refining is maintaining and operating its FCCU (including associated air pollution control e quipment) in a manner consistentwith good air pollution control practices for minimizing emissions in accordan ce with an EPA-approved good air pollution control practices plan. No later than one hundred and eighty (180) days after the Date of Lodging of this Consent Decree, Montana Refining shall submit to EPA for approval a plan to minimize
SO 2 emissions from its FCCU (including associ ated air pollution control equipment) during hydrotreater outages. Copies of this plan shall be provided to the Montana DEQ. Montana Refining shall comply with the plan at all times, including periods of startup, shutdown, and malfunction of the hydrotreater. Modifications to the plan sh all be summarized in an annual submission to EPA and the Montana DEQ.33 13. PM Emissions Reductions from FCCUs. A. General . Navajo shall implement a program to reduce particulate matter (“PM”) emissions from the Artesia FCCU by the insta llation and operation of one new WGS. Montana Refining shall install and operate a third stage separator (“T SS”) or control t echnology equivalent in PM control effectiveness at the Great Falls FCCU if, during the life of this Consent Decree, PM emissions are greater than 15 pounds per hour. B. Installation and Operation of WGS on the Artesia FCCU . By no later than December 31, 2003, Navajo shall co mplete installation and sha ll begin operation of a WGS on emissions from its FCCU. Navajo shall design the WGS to achieve an emission limit of 1.0 pound PM per 1000 pounds of coke burned on a 3- hour average basis. By no later than December 31, 2003, Navajo shall comply w ith an emission limit of 1.0 pound PM per 1000 pounds of coke burned on a 3-hour average basis. C. Demonstrating and Complying with a PM Limit at the Great Falls FCCU . For PM emissions from its FCCU, M ontana Refining shall either: (a) Demonstrate compliance with an emission limit of 15.0 pounds PM per hour by conducting a 3-hour performan ce test representative of normal operating conditions for PM emissions by December 31 of each calendar year beginning with December 31, 2001; provided however, that if any performance test undertaken pursuant to this Paragraph 13.C.(a) is not representative of normal operating c onditions, Montana Refining shall conduct a subsequent performance test representative of normal operating conditions by no later than 90 days after the test that was not representative; or (b) If, during the life of this Consent Decree, any performance test representative of norma l operating conditions undertaken pursuant to Paragraph 13.C.(a) fails to demonstrate compliance with a 15.0 lb/hr PM limit, Montana Refining shall complete installation and begin operation of a TSS or control technolog y equivalent in PM control effectiveness by no later than 24 months from the da te of the performance test that demonstrated non-compliance. Ther eafter, a PM limit for the Great Falls34 FCCU shall be established as the higher of: (i) an emission limit of 15.0 pounds PM per hour demonstrated by conducting, by no later than 60 days after the commencement of the operati on of a TSS or control technology equivalent in PM control effec tiveness, a 3-hour performance test representative of normal operating conditions for PM emissions; or (ii) an emission limit proposed by Montana Re fining, by no later than 150 days after the commencement of the operati on of a TSS or control technology equivalent in PM contro l effectiveness, and thereafter established by EPA, based on the actual performance of the TSS or control technology equivalent in PM contro l effectiveness. Commencing in the first calendar year after the PM limit is establishe d, Montana Refining shall conduct a 3-hour performance test representativ e of normal operating conditions for PM emissions by December 31 of each calendar year to demonstrate compliance. Nothing in this Para graph 13.C.(b) shall require Montana Refining to install a TSS or control technology equivalent in PM control effectiveness if: (i) the cost effectiveness of controlling PM emissions below 15 lb/hr is greater than $10,000 (annualized capital cost plus annual operating costs) per ton of PM re moved; and (ii) Montana Refining submits a report to EPA and the Montana DEQ that establishes the cost ineffectiveness; and (iii) EPA and the Montana DEQ agree with Montana Refining regarding the cost ineffec tiveness. Disputes arising under this Paragraph 13.C.(b) shall be resolved in accordance with the dispute resolution provisions of this Decree. Montana Refining shall submit the results of th e annual PM emissions co mpliance demonstration to EPA and the Montana DEQ. If a TSS or control technology equiva lent in PM control effectiveness is required pursuant to this Paragraph 13.C, then by no later than sixty (60) days after the commencement of the operation of a TSS or control technol ogy equivalent in PM control effectiveness, Montana Refining shall submit a certification of the commencement of this operation to EPA and the Montana DEQ.35 14. CO Emissions Reductions from FCCUs . A. Summary . Navajo and Montana Refining sh all implement a program to reduce CO emissions from the Artesia and Great Falls FCCUs by the use of full combustion.
B. Emissions Limits . By no later than December 31, 2003, for Navajo, and by no later than twelve months from the Date of Lodging for Montana Refining, the Artesia FCCU and the Great Falls FCCU shall meet an emissi on limit of 500 ppmvd CO corrected to 0% O 2 on a 1-hour average basis and 100 ppmvd CO corrected to 0% O 2 on a 365-day rolling average basis. C. Demonstrating Complia nce with Emission Limits . By no later than December 31, 2003, for Navajo, and by no later than 12 months from the Date of Lodging for Montana Refining, Navajo and Montana Re fining shall use a CO and O 2 CEMS to monitor compliance of each FCCU with the terms and conditions of this Consent Decree. Navajo and Montana Refining shall make CEMS and pr ocess data available to the Appli cable Federal and State Agencies upon demand as soon as practicable. Navajo and Montana Refining sh all install, certify, calibrate, maintain, and operate all CEMS required by this Consent De cree in accordance with the requirements of 40 C.F.R. §§ 60.11, 60.13 and Part 60 Appendix A and the applicable performance specification test of 40 C.F.R. Part 50 Appendices B and F. These CEMS will be used to demonstrate compliance with emission limits. 15. NSPS Applicability of FCCU Regenerators . The FCCU Regenerators at the Artesia Refi nery and the Great Fa lls Refinery shall be affected facilities, as that term is used in the Standards of Performance for New Stationary Sources (“NSPS”), 40 C.F.R. Part 60, and shall be subject to and comply with the requirements of NSPS Subparts A and J for each of the fo llowing pollutants by the following dates: Artesia FCCU SO 2 December 31, 200336 PM December 31, 2003 CO December 31, 2003 Opacity December 31, 2003 Great Falls FCCU SO 2 36 Months from the Date of Lodging CO 12 Months from the Date of Lodging
16. NOx Emissions Reductions from Heaters and Boilers . A. Program Summary . Navajo will implement an eight-year program to reduce NOx emissions from the heaters and boilers listed inAppendix C (“Controlle d Heaters and Boilers”) by installing Next Generation Ultra Low-NOx Burners (“Next Generation ULNBs”) or Alternative NOx Control Technology, and dem onstrating continuous compliance with lower emission limits through the use of source testing, CEMS, and/or parametric monitoring. B. Installation of NOx Control Technology . i. Next Generation ULNBs . Navajo shall install Ne xt Generation ULNBs for all Controlled Heaters and Boilers listed in Appendix C, except for Artesia Boilers B-7 and B-8, pursuant to the schedule set forth in Appendix C. Navajo will install the new burners to achieve the lowest possible emissions of NOx. ii. Artesia Boilers B-7 and B-8 . Navajo shall design and install an Alternative NOx Control Technology that achieves a NOx emission rate of less than 0.06 lb/MMBtu, for Artesia Boiler B-7 by no later than December 31, 2002, and for Artesia Boiler B-8 by no later than December 31, 2003. C. Testing and Monitoring NOx Emissi ons from Controlled Heaters and Boilers . Navajo shall monitor the Controlled Heaters and Boilers to meet the requirements of Paragraph 16.B as follows: i. For heaters and boilers with a heatinput capacity greater than 150 mmBTU/hr (HHV), Navajo shall install or continue to operate CE MS to measure NOx and O 237 by no later than the date of the inst allation of the applicable NOx Control Technology on the heater or boiler. Navajo shall install, certify, calibrate, maintain, and operate all CE MS required by this Para graph 16 in accordance with the requirements of 40 C.F.R. §§ 60.11, 60.13 and Part 60 Appendix A and the applicable performance specification test of 40 C.F.R. Part 50 Appendices B and F. These CEMS will be used to demonstrate compliance with emission limits. Navajo shall make CEMS and process data available to the Applicable Federal and State Agencies upon demand as soon as practicable; ii. For heaters and boilers with a heat input capacity of equal to or less than 150 mmBTU/hr (HHV) but greater than100 mmBTU/hr (HHV), Navajo shall (a) install or continue to opera te CEMS to measure NOx and O 2 by no later than the date of the installation of the applicable NOx Control Technology on the heater or boiler; or (b) submit for EPA approval, by no later than 60 days after the date of installati on of the applicable NOx Control Technology on the heater or boiler, a proposal for monitoring based on operating parameters , including but not limited to, firebox temperature, air preheat temperature, heat input rate, and combustion O 2 ; Navajo shall evaluate the necess ity of using firebox or bridgewall temperatures and additi onal operating parameters and agrees to use such parameters as a means of monitori ng performance where Navajo and EPA mutually-agree to their effectiveness; and iii. For heaters and boilers with a heat input capacity of equal to or less than 100 mmBTU/hr (HHV), Navajo sha ll, by no later than 60 days after the date of installation of the applicable NOx Control Technology, conduct an initial performance test. The results of this te st shall be reported based upon the average of three (3) one hour testing periods and shall be used to de velop representative operating parameters for each unit, wh ich will be used as indicators of compliance. D. Establishing NOx Permit Limits for Heaters and Boilers . Within 120 days after the start-up of the operation of any NOx Cont rol Technology required by this Paragraph 16, Navajo shall submit a pe rmit application to the NMED in which Navajo proposes NOx emission limits in lb/mmBtu on a 3-hour average basis. The proposed permit limits shall be based on actual performance as dem onstrated by CEMS and performance tests, and shall be low enough to ensure proper operation of the NOx Control Tec hnology and high enough to provide a reasonable certainty of compliance.38 E. Recordkeeping and Reporting . Commencing in 2002, Nava jo shall submit a report to EPA and the NMED on December 31 of each cale ndar year about the pr ogress of installation of NOx Control Technology required by this Paragraph 16 and other requirements of this Paragraph. This re port shall contain: (i) A list of all Controlled Heater s and Boilers on which NOx Control Technology was installed; (ii) The type of NOx Control Technology that was installed on each heater and boiler with a detailed desc ription of the manufactur er name and model and the designed emission factors; (iii) The results of all performance test s conducted on each heater and boiler to date; (iv) A list of all heaters and boilers scheduled to have NOx Control Technology installed during the next calendar year, the projected date of installation, and the type of NOx Control Technology that will be installed on those units; and (v) An identification of proposed and established permit limits applicable to each heater or boiler for which NOx Control Technology has been installed pursuant to this Paragraph. F. Heaters and Boilers at the Great Falls Refinery . Montana Refining does not currently own or operate any h eaters and boilers with a heat input capacity of 40 MMBtu/hr or higher. If, during the life of this Consent D ecree, Montana Refining commences the operation of any heater or boiler with a heat input capac ity of 40 MMBtu/hr or greater, Montana Refining shall install and operate Next Generation ULNBs on any such h eater or boiler. Thereafter, Montana Refining shall comply with the re maining provisions of Paragraph 16.C - 16.E.39 17. SO 2 Emissions Reductions from and NSPS Applicability of Heaters and Boilers . A. General . Navajo and Montana Refining sha ll undertake measures to reduce SO 2 emissions from refinery heaters and boilers by restricting H 2 S in refinery fuel gas and by agreeing not to continue and/or commence the burning of fuel oil except under the provisions set forth herein. B. NSPS Applicability of Heaters and Boilers . Upon the Date of Lodging of the Consent Decree for Navajo, and by no later th an December 31, 2006, for Montana Refining, the heaters and boilers at the Covered Refineries shall be affected facilities, as that term is used in 40 C.F.R. Part 60, Subparts A and J, and shall be subject to and comply with the requirements of NSPS Subparts A and J. By no later than D ecember 31, 2006, Montana Refining shall install, certify, calibrate, maintain and operate a fuel gas CEMS in accordance with the requirements of 40 C.F.R. §§ 60.11, 60.13 and Part 60 Appendix A, a nd the applicable pe rformance specification test of 40 C.F.R. Part 60 Appendices B and F. This CEMS will be used to demonstrate compliance with emission limits. C. Elimination/Reduction of Fuel Oil Burning . i. Navajo . From the Date of Lodging of th is Consent Decree through termination, Navajo shall continue not to burn Fuel Oil in any combustion unit except that: (a) Navajo shall be permitted to burn Torch Oil in the Artesia FCCU Regenerator during FCCU start-ups; and (b) Navajo shall be permitted to burn Fuel Oil in combustion units after the establishment of FCCU NOx emissi on limits pursuant to Paragraph 11.E. of this Consent Decree, provided that emissions from any such combustion units are routed through the F CCU Wet Gas Scr ubber and Navajo demonstrates, with the approval of EPA, that the NOx emission limits established therein and the SO 2 emissions limits set forth in Paragraph 12.B. of this Consent Decree will continue to be met.40 ii. Montana Refining . From the Date of Lodging of this Consent Decree through termination, Montana Refining sh all continue not to burn Fuel Oil in any combustion unit except that Montana Refining shall be permitted to burn Torch Oil in the Great Falls FCCU Regenerator during FCCU start-ups. 18. NSPS Applicability of and Comp liance for Sulfur Recovery Plant

. A. NSPS Applicability of Sulfur Recovery Plant . i. Artesia Refinery Sulfur Recovery Plant Description . Navajo owns and operates one Sulfur Recovery Plant located at the Artesi a Refinery. Montana Refining does not own or operate any Sulfur Recove ry Plants. The Sulfur Recovery Plan t at the Artesia Refinery (“Artesia SRP”) consists of two units: one with a processing capacity of 100 long tons per day (“LTD”) and the other with a processing capacity of 40 LT D. The control device for the SRP is a single Tail Gas Unit (“Artesia TGU”) with a processing capacity of 70 LTD. Nothing in this Paragraph 18 shall require Na vajo simultaneously to opera te both units of its SRP. ii. Artesia Sulfur Recovery Plant NSPS Applicability . Because the Artesia SRP (which includes both units) was construc ted and/or modified after Oc tober 4, 1976, the Artesia SRP is subject to, and shall continue to comply with, the applicable provisions of 40 C.F.R. Part 60, Subparts A and J.
B. Sulfur Pit Emissions . As of the Date of Lodging, Navajo shall continue to route all Artesia SRP sulfur pit emissions from the Artesia SRP so that sulfur pit emissions to the atmosphere either are eliminated or are included and monitored as part of the applicable Sulfur Recovery Plants tail gas emissions that meet the NSPS Subpart J limit for SO 2 : a 12-hour rolling average of 250 ppmvd SO 2 corrected to 0% oxygen, as required by 40 C.F.R. § 60.104(a)(2). C. Sulfur Recovery Plant Emissions Compliance

.41 i. By no later than the Date of Lodging of the Consent Decree, Navajo shall, for all periods of operation of the Artesia SRP, comply with 40 C.F.R. § 60.104(a)(2), except during periods of startup, shutdown or Malfunction of the Artesia SRP, or during a Malfunction of the Artesia TGU. For the purpose of determining compliance with the Sulfur Recovery Plant emission limits of 40 C.F.R. § 60.104(a)(2), the “start-up/shutdown” provisions set forth in NSPS Subpart A shall apply to the Artesia SRP and not to the independent start-up or shutdown of the Artesia TGU. However, the Malfunction exemption set forth in NSPS Subpart A (and as defined in the Consent Decree at Paragraph 10) shall apply to both the Artesia SRP and the Artesia TGU. ii. As of the Date of Lodging of this Consent Decree, Navajo shall monitor all emission points (stacks) to the atmosphere for tail gas emissions from the Artesia SRP, and shall report excess emissions, as required by 40 C.F.R. §§ 60.7(c), 60.13, and 60.105(a)(5). During the life of this Consent Decree, Navajo shall continue to c onduct emissions monitoring from the Artesia SRP with CEMS at all of th e emission points, unless an SO 2 alternative monitoring procedure has been approved by EPA, per 40 C.F.R. § 60.13(i), for any of the emission points. The requirement for continuous monitoring of the Artesia SRP emission points is not applicable to the Acid Gas Flaring Devices used to flare th e Acid Gas or Sour Water Stripper Gas for the Artesia SRP. iii. At all times, including periods of st artup, shutdown, and Malf unction, Navajo shall, to the extent practicable, operate and maintain the Artesia SRP and the Artesia TGU, and any supplemental control devices, in accordance w ith Navajo’s obligation to minimize Sulfur Recovery Plant emissions thr ough implementation of good air pollution control practices as required in 40 C.F.R. § 60.11(d).42 D. Good Operation and Maintenance

. i. By no later than 270 days from the Date of Lodging of the Consent Decree, Navajo shall, for the Artesia SRP, submit to EPA and the NMED, a summary of a plan, implemented or to be implemented, for enhanced maintenance and operation of the Artesia SRP, the Artesia TGU, any supplemental control devices, and the a ppropriate Upstream Process Units. This plan shall be termed a Preventive Maintenance and Operation Plan (“PMO Plan”). The PMO Plan shall be a compilation of Navajo ’s approaches for exercising good air pollution control practices for minimizing SO 2 emissions at the Artesia Refinery . The PMO Plan shall provide for continuous operation of the Artesia SRP between scheduled maintenance turnarounds with minimization of emissions from the Artesia SRP. The PMO Plan shall include, but not be limited to, sulfur shedding procedures, new startup and shutdown procedures, emergency procedures and schedules to coor dinate maintenance turnarounds of the Artesia SRP Claus trains, Artesia TGU, and any supplemental control devi ce to coincide with scheduled turnarounds of major Upstream Process Units. The PMO Plan shall have as a goal the elimination of Acid Gas Flaring. Navajo shall comply with the PMO Planat all times, including periods of start up, shut down, and Malfunction of the Artesia SRP. Modifications related to minimizing Acid Gas Flaring and/or SO 2 emissions made by Navajo to the PMO Plan shall be summarized in an annual submission to EPA and the NMED. ii. EPA and the NMED do not, by their review of the PMO Plan and/or by their failure to comment on the PMO Plan, warrant or aver in an y manner that any of the actions that Navajo may take pursuant to the PMO Plan will result in compliance with the provisions of the Clean Air Act, the New Mexico Air Quality Control Act, or their implementing regulations. Notwithstanding EPA’s or NMED’s review of the PMO Plan, Navajo shall remain solely43 responsible for compliance with the Clean Air Act, the New Mexico Air Quality Control Act, and their implementing regulations.
E. Optimization Study . Between January 1, 2004, and December 31, 2004, Navajo shall complete an optimization study (internal or external) on the Artesia SRP and report the results to EPA and the NMED. The optimization study shall consider: i. A detailed evaluation of plant desi gn and capacity, operating parameters and efficiencies - including catalytic activity and material balances; ii. An analysis of the composition of the Acid Gas and Sour Water Stripper Gas resulting from the processing of crude slate actually used, or expected to be used, in the Artesia SRP; iii. A thorough review of each criti cal piece of process equipment and instrumentation within each Claus train that is designed to correct deficiencies or problems that prevent each Claus trai n from achieving their optimal sulfur recovery efficiency and ex panded periods of operation; iv. Establishment of baseline data th rough testing and measurement of key parameters throughout each Claus train; v. Establishment of a thermodynamic process model of each Claus train; vi. For any key parameters that have been determined to be at less than optimal levels, initiation of logical, sequential, or stepwise changes designed to move such parameters toward their optimal values; vii. Verification through testing, analysis of continuous emission monitoring data, or other means, of incremental and cumulative improvements in sulfur recovery efficiency, if any;44 viii. Establishment of new operating procedures for long term efficient operation; and ix. Each study shall be conducted to op timize the performance of the Claus trains in light of the actual characteristics of the feeds to the Artesia SRP. Navajo shall incorporate the results of the op timization study into the PMO Plan required under Paragraph 18.D. 19. NSPS Applicability of and Compliance for Flaring Devices.
A. Identification of and NSPS Applicability for Flaring Devices . Navajo and Montana Refining own and operate the Flaring De vices identified in Appendix B to this Consent Decree. Consistent with the terms of this Paragraph 19 and the sche dule in Appendix E, the Flaring Devices in Appendix B shall be affected facilities, as that term is used in NSPS, 40 C.F.R. Part 60, and shall be subject to and comp ly with the requirements of 40 C.F.R. Part 60, Subparts A and J for fuel gas combustion devices.
B. Compliance with the Emission Limit at 40 C.F.R. § 60.104(a)(1) . i. Continuous or Intermittent, Routin ely-Generated Refinery Fuel Gases . For continuous or intermittent, routinely-generated refinery fuel gases that are combusted in any of the Flaring Devices identified in Appendix B, Navajo and Montana Refining shall either take the Flaring Device that is associated with such a gas stream out of service or shall comply with the emission limit at 40 C.F.R. § 60.104(a)(1) by the dates specified in Appendix E. ii. Non-Routinel y Generated Gases . The combustion of gases generated by the startup, shutdown, or Malfunction of a refine ry process unit or released to a Flaring Device as a result of relief valve leakage caused by excessive pressure build-up or other emer gency Malfunction shall be exempt from the requirement to comply with 40 C.F.R. § 60.104(a)(1).45 C. Good Air Pollution Control Practices . For all Flaring Devices identified in Appendix B, Navajo and Montana Refining shall comply with the NSPS obligation to implement good air pollution control practices as require d by 40 C.F.R. § 60.11(d) to minimize HC and AG Flaring Incidents.
D. Monitoring the Flaring Devices and Reporting . All Flaring Devices that Navajo or Montana Refining keep in service to combust continuous or intermittent , routinely-generated refinery fuel gases shall be equipped with a CEMS as requi red by 40 C.F.R. § 60.105(a)(4) or with a parametric monitoring sy stem approved by EPA as an alte rnative monitoring system under 40 C.F.R. § 60.13(i). Navajo and Montana Re fining shall comply with the reporting requirements of 40 C.F.R. Part 60, Subpart J, for all such Flaring Devices. E. Utilization of the Lovington Flaring Device during a Scheduled Shutdown at Duke Energy’s Linam Ranch Natural Gas Plant . Commencing on the Date of Lodging of this Consent Decree and continuing through the date that the Lovington Flaring Device (FL-1001) meets NSPS standards related to fuel gas combustion devices, Navajo shall provide written notice to the NMED by no later than ten days prior to a scheduled shutdown at Duke Energy’s Linam Ranch Natural Gas Plant, except that, if Navajo does not receive notice from Duke Energy of a scheduled shutdown ten days in advance of such shutdown, then Navajo shall provide written notice to the NMED by no later than th e end of the next business day after receiving notice from Duke Energy.
20. Control of Acid Gas Flaring Incidents and Tail Gas Incidents

. Navajo has identified the causes of AG Flar ing Incidents that occurred between 1997 and July of 2001 at the Artesia Refine ry. Navajo has implemented (or is in the process of identifying and implementing) corrective actions to minimize the number and duration of AG Flaring46 Incidents. Navajo also agrees to implement a program to investigate the cause of future AG Flaring Incidents, to take reasonable steps to correct the conditions that have caused or contributed to such AG Flaring Incidents, and to minimize AG Flaring Incidents. Navajo shall follow the procedures in this Paragraph 20 to ev aluate whether future AG Flaring Incidents are due to Malfunctions or are subjectto stipulated penalties. Nava jo also agrees to undertake the investigative and evaluative proce dures in this Paragraph for asse ssing if Tail Gas Incidents, as described in Paragraph 20.E, are due to Malfunctions or are subject to stipulated penalties. The procedures, as set forth below, require a root cau se analysis and corrective action for all types of AG Flaring and Tail Gas Incidents and require stipulated penalties for AG Flaring and Tail Gas Incidents if the root causes were not due to Malfunctions. The Lovington Refinery and the Great Falls Refinery do not flare Acid or SWS Gas to the atmosphere and do not have Tail Gas Units; therefore, the Lovington and Great Falls Refine ries have not had any AG Flaring or Tail Gas Incidents. The provisions of this Paragraph 20 are not applicable to the Lovington and Great Falls Refineries unless and until either of them adds a Tail Gas Unit and/or modifies their process operations such that flaring Acid or SWS Gas to the atmosphere is possible. A. Investigatio n and Reporting. No later than forty-five (45) days following the end of an Acid Gas Flaring Incident, Navajo shall submit to EPA and the NMED a report that sets forth the following: i. The date and time that the Acid Gas Flaring Incident started and ended. To the extent that the Acid Gas Flaring Incidentinvolved multiple releases either within a twenty-four (24) hour period or with in subsequent, con tiguous, non-overlapping twenty-four (24) hour periods , Navajo shall set forth th e starting and ending dates and times of each release; ii. An estimate of the quantity of sulfur dioxide that was emitted and the calculations that were used to determine that quantity;47 iii. The steps, if any, that Navajo took to limit the duration and/or quantity of sulfur dioxide emissions associated with the Acid Gas Flaring Incident; iv. A detailed analysis that sets forth th e Root Cause and all contributing causes of that Acid Gas Flaring Incident, to the extent determinable; v. An analysis of the measures, if any, th at are available to reduce the likelihood of a recurrence of an Acid Gas Flaring Incident resulting from the same Root Cause or contributing causes in the future. The analysis shall discuss the alternatives, if any, that are available, the probable effec tiveness and cost of the alternatives, and whether or not an outside consultant should be retained to assist in the analysis. Possible design, operation and maintenance changes shall be evaluated. If Navajo concludes that corrective action(s) is (are) require d under Paragraph 20.B, the report shall include a descri ption of the action(s) and, if not already completed, a schedule for its (their) implementati on, including proposed commencement and completion dates. If Nava jo concludes that correctiv e action is not required under Paragraph 20.B, the report shall expl ain the basis for that conclusion; vi. A statement that: (a) specifically id entifies each of the grounds for stipulated penalties in Paragra phs 20.C.i and 20.C.ii of this Decree and describes whether or not the Acid Gas Flaring Incident falls under any of those grounds; (b) if an Acid Gas Flaring Incident falls under Paragraph 20.C.iii of this Decree, describes which Paragraph (20.C.iii.a or 20.C.iii .b) applies and why; and (c ) if an Acid Gas Flaring Incident falls under either Paragra ph 20.C.ii or Paragraph 20.C.iii.b, states whether or not Navajo asserts a defense to the Flaring Incident, and if so, a description of the defense; and vii. To the extent that investigations of the causes and/or possible corrective actions still are underway on the due date of the re port, a statement of the anticipated date by which a follow-up report fully conf orming to the requirements of this Paragraph 20.A.iv and 20.A.v shall be submitted; pr ovided, however, that if Navajo has not submitted a report or a series of reports containing the information required to be submitted unde r this Paragraph within the 45 day time period set forth in Paragraph 20.A (or such additi onal time as EPA may allow) after the due date for the initial report for the Acid Gas Flaring Incident, the stipulated penalty provisions of Paragraph 51 sha ll apply, but Navajo shall retain the right to dispute, under the dispute resolution provision of this Consent Decree, any demand for stipulated penalties that was issued as a result of Navajo’s failure to submit the report required under this Pa ragraph within the time fra me set forth. Nothing in this Paragraph shall be deemed to excu se Navajo from its i nvestigation, reporting, and corrective action obligations under th is Section for any Acid Gas Flaring Incident which occurs after an Acid Ga s Flaring Incident for which Navajo has requested an extension of time under this Paragraph 20.B.48 viii. To the extent that completion of the implementation of corrective action(s), if any, is not finalized at the time of th e submission of the report required under this Paragraph, then, by no late r than thirty (30) days after completion of the implementation of corrective action(s), Navajo shall submit a report identifying the corrective action(s) taken and the dates of commencement and completion of implementation.
B. Corrective Action

. i. In response to any AG Flaring Incident , Navajo shall take, as expeditiously as practicable, such interim and/or long-term correctiv e actions, if any, as are consistent with good engineering practice to minimize the likelihood of a recurrence of the Root Cause and all contributing causes of that AG Flaring Incident. ii. If EPA does not notify Navajo in writing w ithin thirty (30) days of receipt of the report(s) required by Paragra ph 20.A that it objects to one or more aspects of the proposed corrective action(s), if any, and schedule(s) of implement ation, if any, then that (those) action(s) and schedule(s) shall be deemed acceptable for purposes of compliance with Paragraph 20.B.i of this Decree. EPA does not, however, by its consen t to the entry of this Consent Decree or by its failure to object to any corrective action that Navajo may take in the future, warrant or aver in any manner that any corrective actions in the future shall result in compliance with the provisions of the Clean Air Act or its implementing regula tions. Notwithstanding EPA’s review of any plans, reports, corrective measures or procedur es under this Paragraph 20, Navajo shall remain solely responsible for non-compliance with the Clean Air Act and its imp lementing regulations. Nothing in this Paragraph 20 sha ll be construed as a waiver of EPA’s rights under the Clean Air Act and its regulations for future viol ations of the Act or its regulations. iii. If EPA does object, in whole or in part, to the proposed corrective action(s) and/or the schedule(s) of implement ation, or, where applicable, to the absence of such proposal(s) and/or49 schedule(s), it shall notify Navajo of that fact w ithin thirty (30) days following receipt of the report(s) required by Pa ragraph 20.A above. If EPA and Navajo cannot agree on the appropriate corrective action(s), if any, to be taken in response to a partic ular Acid Gas Flaring Incident, either Party may invoke the Dis pute Resolution provisions of S ection XV of the Consent Decree. iv. Nothing in Paragraph 20 shall be construed to limit the right of Navajo to take such corrective actions as it deems necessary and appropriate immediately following an Acid Gas Flaring Incident or in the period during prepara tion and review of any reports required under this Section.
C. Stipulated Penalties . The provisions of this Para graph 20.C shall apply to the Artesia Refinery. The provisions of Paragraph 20.C are intended to implement the process outlined in the logic diagram attached hereto as Appendix F to this Consent Decree. These provisions shall be interpreted and construed, to the maximum exte nt feasible, to be consistent with that Attachment. However, in the event of a conflict between the language of Paragraph 20 and Appendix F, the language of this Paragraph shall control. i. The stipulated penalty provisions of Para graph 51 shall apply to any Acid Gas Flaring Incident for which the Root Cause was one or mo re or the following acts, omissions, or events: a. Error resulting from careless operation by the personnel charged with the responsibility for the Sulfur Recovery Pl ant, TGU, or Upstream Process Units; b. Failure to follow written procedures; c. A failure of equipment that is due to a failure by Navajo to operate and maintain that equipment in a manner consistent with good engineering practice; or d. The following Root Causes shall not pr ovide a basis for a sserting a Malfunction defense unless Navajo can demonstrate to EPA that such root cause substantially differs from these same Root Causes that were identified prior to the Lodging of this Consent Decree:50 (1) Shutdowns and maintenance of Co mpressor C110 or the FCCU wet gas compressor at the Artesia Refinery; and (2) Hydrocarbon carryover resulting in SRP shutdowns at the Artesia Refinery. Except for a force majeure event, Navajo shall have no de fenses to a demand for stipulated penalties for an Acid Gas Flaring Inci dent falling under this Paragraph 20.C.i. ii. The stipulated penalty provisions of Para graph 51 shall apply to any Acid Gas Flaring Incident that either: a. Results in emissions of sulfur dioxide at a rate greater than twenty (20.0) pounds per hour continuously for three (3) consecutive hours or more; or b. Causes the total number of Acid Gas Flaring Incidents in a rolling twelve (12) month period to exceed five (5). In response to a demand by the United States fo r stipulated penalties, the United States and Navajo agree that Navajo shall be entitled to assert a Malfunction and/or force majeure defense with respect to any Acid Gas Flaring Incident falling under this Paragraph 20.C.ii. In the event that a dispute arising under this Paragraph is brought to the Court pursuant to the dispute resolution provisions of this Consent Decree, nothi ng in this Paragraph is intended or shall be construed to stop Navajo from asse rting that, in addition to the Malfunction and/or force majeure defense, the defenses of startup, shutdown, and upset are available for AG Flaring Incidents under 40 C.F.R. § 60.104(a)(1), nor to stop the Unite d States from asserting its view that such defenses are not available. In the event that a Flaring Incident falls under both Paragraph 20.C.i and Paragraph 20.C.ii, then Pa ragraph 20.C.i shall apply. iii. With respect to any Acid Gas Flaring Incident other than those identified in Paragraphs 20.C.i and 20.C.ii, the following provisions shall apply:51 a. First Time : If the Root Cause of the Acid Gas Flaring Incident was not a recurrence of the same Root Cause that resulted in a previous Acid Gas Flaring Incident at that refinery that occurred since the effective date of this Decree, then: (1) If the Root Cause of the Acid Gas Flaring Incident was sudden, infrequent, and not reasonably preventable throug h the exercise of good engineering practice, then that cause shall be de signated as an agreed-upon malfunction for purposes of reviewing subseque nt Acid Gas Flaring Incidents; (2) If the Root Cause of the Acid Ga s Flaring Incident was not sudden and infrequent, and was reasonably preventa ble through the exercise of good engineering practice, then Navajo shall implement corrective action(s) pursuant to Paragraph 20.B.i. b. Recurrence : If the Root Cause is a recurre nce of the same Root Cause that resulted in a previous Acid Gas Flaring In cident that occurred since the Effective Date of this Consent Decree, then Navajo shall be liable for stipulated penalties under Paragraph 51 of the Consent Decree unless: (1) the Flaring Incident re sulted from a Malfunction; or (2) the Root Cause previously was de signated as an agreed-upon malfunction under Paragraph 20.C.iii.b.(1) ; provided however, that in the event that a dispute arising under this Paragraph is brought to the Court pursuant to the dispute resolution provisions of this Consent Decree, nothing in this Paragraph is intended or shall be construed to st op Navajo from asserting its view that, in addition to a Malfunction and/or force majeure defense, the defenses of startup, shutdown, a nd upset are available for Acid Gas Flaring Incidents under 40 C.F.R. § 60.104(a)(1), nor to stop the United States from asserting its view that such defenses are not available; or (3) the AG Flaring Incident had as its Root Cause the recurrence of a Root Cause for which Navajo had previously developed, or was in the process of developing, a corrective action pl an for and for which Navajo had not yet completed implementation. iv. Other than for a Malfunction or force majeure , if no Acid Gas Flaring Incident and no violation of the emission limit under Paragraph 18 occurs at the Artesia Refinery for a rolling 36 month period, then the stipulated penalty provisi ons of Paragraph 51 no l onger apply. EPA may elect to reinstate the stipulated penalty provision if Navajo ha s an Acid Gas Flaring Incident which would otherwise be subject to stipulated penalties. EPA's decision shall not be subject to52 dispute resolution. Once reinstat ed, the stipulated penalty pr ovision shall continue for the remaining life of this Consent Decree for the Artesia Refinery.
D. Miscellaneous

. i. Calculation of the Quantity of Sulfu r Dioxide Emissions resulting from AG Flaring . For purposes of this Consent Decree, the quantity of SO 2 emissions resulting from AG Flaring shall be calculated by the following formula: Tons of SO 2 = [FR][TD][ConcH 2 S][8.44 x 10 -5 ]. The quantity of SO 2 emitted shall be rounde d to one decimal point. (Thus, for example, for a calculation that results in a numbe r equal to 10.050 tons, the quantity of SO 2 emitted shall be rounded to 10.1 tons.) For pur poses of determining the occurre nce of, or the total quantity of
SO 2 emissions resulting from, a AG Flaring Incident that is comprised of intermittent AG Flaring, the quantity of SO 2 emitted shall be equal to the sum of the quantities of SO 2 flared during each such period of intermittent AG Flaring.
ii. Calculation of the Rate of SO 2 Emissions During AG Flaring . For purposes of this Consent Decree, the rate of SO 2 emissions resulting from AG Flaring shall be expressed in terms of pounds per hour, and shall be calculated by the following formula: ER = [FR][ConcH 2 S][0.169]. The emission rate shall be rounde d to one decimal point. (Thus, for example, for a calculation that results in an emi ssion rate of 19.95 pounds of SO 2 per hour, the emission rate shall be rounded to 20.0 pounds of SO 2 per hour; for a calculation that re sults in an emission rate of 20.05 pounds of SO 2 per hour, the emission rate shall be rounded to 20.1.)
iii. Meaning of Variables and Derivation of Multipliers used in the Equations in Paragraph 20.D.i-ii:53 ER = Emission Rate in pounds of SO 2 per hour FR = Average Flow Rate to Flaring Device(s) during Flaring, in standard cubic feet per hour TD = Total Duration of Flaring in hours
ConcH 2 S = Average Concentration of Hydrog en Sulfide in gas during Flaring (or immediately prior to Flaring if all gas is being flared) expressed as a volume fraction (scf H 2 S/scf gas)
8.44 x 10 -5 = [lb mole H 2 S/379 scf H 2 S][64 lbs SO 2 /lb mole H 2 S][Ton/2000 lbs] 0.169 = [lb mole H 2 S/379 scf H 2 S][1.0 lb mole SO 2 /1 lb mole H 2 S][64 lb SO 2 /1.0 lb mole SO 2 ] The flow of gas to the AG Flaring Device(s) (“FR ”) shall be as measured by the relevant flow meter or reliable flow estimation parameters. Hydrogen sulfide concentration (“ConcH 2 S”) shall be determined from the Sulfur Recovery Plant feed gas analyzer, from knowledge of the sulfur content of the process gas being flared, by di rect measurement by tutwiler or draeger tube analysis or by any other method approved by EPA or the NMED. In the event that any of these data points is unavailabl e or inaccurate, the missing data poi nt(s) shall be estimated according to best engineering judgment. The report require d under Paragraph 20.A.i. shall include the data used in the calculation and an explanation of the basis for any estimates of missing data points.54 E. Tail Gas Incidents . i. Investigation, Reporting, Corrective Action and Stipulated Penalties . For Tail Gas Incidents, Navajo shall follow the same investigative, reporting, corrective action and assessment of stipulated penalty procedures as those outlined in Paragraphs 20.A - 20.C for Acid Gas Flaring Incidents. Those procedures shall be a pplied to TGU shutdowns, bypasses of a TGU, unscheduled shutdowns of a Sulfur Recovery Pl ant, or other miscellane ous unscheduled Sulfur Recovery Plant events which result in a Tail Gas Incident.
ii. Calculation of the Quantity of SO 2 Emissions resulting from a Tail Gas Incident : For the purposes of this Consent Decree, the quantity of SO 2 emissions resulting from a Tail Gas Incident shall be calculated by one of the following methods , based on the type of event: a. If the Tail Gas Incident is combusted in a flare the SO 2 emissions are calculated using the methods outlined in Paragraph 20.D.; or b. If the Tail Gas Incident is a event exceeding the 250 ppmvd (NSPS J limit), from a monitored Sulfur Recovery Plant inci nerator, then the following formula applies:
TD TGI 20.9 - % O 2 ER TGI=  [ FR Inc. ] i [Conc. SO 2 – 250] i [0.169 x 10 -6 ] [ 20.9 ] i i = 1 Where:
ER TGI= Emissions from Tail Gas at the Sulfur Recovery Plant incinerator, SO 2 lb over a 24 hour period
TD TGI = Total Duration (number of hours) when the incinerator CEMS exceeded 250 ppmvd SO 2 corrected to 0% O 2 on a rolling twelve hour average, in each 24 hour period of the Incident i = Each hourly average
FR Inc. = Incinerator Exhaust Gas Flow Rate (standard cubic feet per hour, dry basis) (actual stack monitor data or engineering estimate based on the acid gas feed rate to the SRP) for each hour of the Incident55 Conc. SO 2 = Each actual 12 hour rolling average SO 2 concentration (C EMS data) that is greater than 250 ppm in the incinera tor exhaust gas, ppmvd corrected to 0% O 2 , for each hour of the Incident % O 2 = O 2 concentration (CEMS data) in the incinerator exhaust gas in volume % on dry basis for each hour of the Incident
0.169 x 10 -6 = [lb mole of SO 2 / 379 SO 2 ] [64 lbs SO 2 / lb mole SO 2 ] [1 x 10 -6 ] Standard conditions = 60 degree F; 14.7 lb force /sq.in. absolute In the event the concentration SO 2 data point is inaccurate or not available or a flow meter for
FR Inc , does not exist or is inoperable, then estimates will be used base d on best engineering judgment. 21. Control of Hydrocar bon Flaring Incidents . Navajo and Montana Refining have identified the causes of HC Flaring Incident s that occurred between 1997 and July of 2001 at each of the Covered Refineries. Navajo and Mont ana Refining have implemented (or are in the process of identifying and implementing) corrective actions to minimize the number and duration of HC Flaring Incidents. For future Hydr ocarbon Flaring Incidents, Navajo and Montana Refining shall follow the same investigative, re porting, and corrective acti on procedures as those outlined in Paragraphs 20.A - 20.B for Acid Gas Fl aring Incidents; provided however, that in lieu of analyzing possible corrective actions unde r Paragraph 20.A.v and taking interim and/or long-term corrective action under Paragraph 20.B.i for a Hydrocarbon Flaring Incident attributable to the start up or shut down of a un it that Navajo or Montana Refining has previously analyzed under this Paragraph 21, Navajo or Montana Refining, as applicable, may identify such prior analysis when submitting the report required under this Paragraph 21. Stipulated penalties under either Paragraphs 20.C and 51 shall not apply to Hydrocarbon Flaring Incident(s). The formulas at Paragraph 20.D, used for calculating th e quantity and rate of sulfur dioxide emissions56 during AG Flaring Incidents, shall be used to calculated the quantity and rate of sulfur dioxide emissions during HC Flaring Incidents.
22. Benzene Waste NESHAP Program Enhancements

. In addition to continuing to comply with a ll applicable requirement s of 40 C.F.R. Part 61, Subpart FF (“Benzene Waste NES HAP” or “Subpart FF”), Navajo and Montana Refining agree to undertake, at each of the Covered Refineri es, the measures set forth in Paragraphs 22.B through 22.N to ensure continuing complian ce with Subpart FF and to minimize or eliminate fugitive benzene waste emissions. A. Current Compliance Status . As of the Date of Lodging of this Consent Decree, Navajo and Montana Refining be lieve that each of the Covered Refineries has a Total Annual Benzene (“TAB”) of less than 10 Mg/yr. Navajo and Montana Refining will review and verify the TABs at each of the Covered Refineries cons istent with the require ments of Paragraph 22.C. B. Refinery Compliance Status Changes . If at any time from the Date of Lodging of the Consent Decree through its termination, any of the Covered Refineries is determined to have a TAB equal to or greater than 10 Mg/yr, Nava jo or Montana Refining, as applicable, shall comply with the compliance option set forth at 40 C.F.R. § 61.342(e) (hereinafter referred to as the “6 BQ compliance option”). C. One-Time Review and Verification of Each Covered Refinery’s TAB

. i. Phase One of the Review and Verification Process . By no later than 270 days from the Date of Lodging of the Consent Decree, Navajo and Montana Refining shall complete a review and verification of the TAB of each Covered Refinery. For each Covered Refinery, the review and verification process shall in clude, but not be limited to: (i) an identification of each waste stream that is required to be include d in the Covered Refinery’s TAB (e.g. , slop oil, tank water57 draws, spent caustic, desalter rag layer dumps, desa lter vessel process sampling points, other sample wastes, maintenance wastes, and turnaround wastes); ( ii) a review and identification of the calculations and/or measurements used to determine the flows of each waste stream for the purpose of ensuring the accuracy of the annual waste quantity for each waste stream; (iii) an identification of the benzene concentration in each waste stream, including sampling for benzene concentration at no less than 10 waste streams per Covered Refinery consistent with the requirements of 40 C.F.R. § 61.355(c )(1) and (3); provided however, th at previous analytical data or documented knowledge of wast e streams may be used, 40 C.F.R. § 61.355(c)(2), for streams not sampled; and (iv) an identifi cation of whether or not the str eam is controlled consistent with the requirements of Subpart FF. By no later than thirty (30) days following the completion of Phase One of the review and verification process, Navajo and Montana Refining shall submit a Benzene Waste NESHAP Compliance Review and Verification repor t (“BWN Compliance Review and Verification Report”) that sets forth the results of Phase One, including but not limited to the items identified in (i) through (iv) of this Paragraph 22.C.i. At their option, Navajo and Montana Refining may submit one BWN Compliance Review and Verification Report that includes the results of all Covered Refineries or may submit three separate BWN Compliance Review and Verification Reports. ii. Phase Two of the Review and Verification Process . Based on EPA’s review of the BWN Compliance Review and Veri fication Report(s), EP A may select up to 20 additional waste streams at each Covered Refinery for samplin g for benzene concentration. Navajo and/or Montana Refining, as applicable, will conduct the required sampling and submit the results to EPA within ninety (90) days of receipt of EP A’s request. Navajo and/or Montana Refining, as applicable, will use the results of this additiona l sampling to recalculate the TAB and to amend58 the BWN Compliance Review and Verification Report, as needed. To the extent that EPA requires Navajo and/or Montana Re fining to re-sample a Phase One waste stream as part of this Phase Two review, Navajo and/or Montana Refini ng, as applicable, may average the results of the two sampling events. Navajo and/or Montana Refining, as applicable, shall submit an amended BWN Compliance Review and Verification Report within ninety (90) days following the date of the completion of the required Phase Two sampling, if Phase Two sampling is required by EPA. D. Implementation of Actions Necessary to Correct Non-Compliance and Provisions for Covered Refineries where the TAB is under 1 Mg/yr

. i. Amended TAB Reports . If the results of the BWN Compliance Review and Verification Report(s) indicate(s) that a Covered Refinery has faile d to file the reports required by 40 C.F.R. § 61.357(c), or that a Covered Refi nery’s most recently-filed report is inaccurate and/or does not satisfy the requi rements of Subpart FF, Navajo and/or Montana Refining, as applicable, shall submit, by no later than sixty (60) days after completion of the BWN Compliance Review and Verificati on Report(s), an amended TAB re port to the Applicable State Agency. Navajo’s and/or Montana Refining ’s BWN Compliance Review and Verification Report(s) shall be deemed an amended TAB report for purposes of Subpart FF reporting to EPA. ii. If the results of the BWN Compliance Review and Verificati on Report indicate that any Covered Refinery has a TAB of over 10 Mg /yr, Navajo and/or Montana Refining, as applicable, shall submit to the Applicable Fede ral and State Agencies by no later than 180 days after completion of the BWN Compliance Review and Verification Report, a plan that identifies with specificity the compliance strategy and sc hedule that Navajo and/ or Montana Refining, as59 applicable, will implement to ensure that the Covered Refinery complies with the 6 BQ compliance option as soon as practicable. iii. Review and Approval of Plans Submitted Pursuant to Paragraph 22.D.ii . Any plan submitted pursuant to Paragraph 22.D.ii shall be subject to th e approval of, di sapproval of, or modification by EPA, which shall act in consultation with the Applicable State Agency. Within sixty (60) days after receiving any notificati on of disapproval or request for modification from EPA, Navajo and/or Montana Refining, as applicable, shall submit to the Applicable Federal and State Agencies a revise d plan that responds to all identif ied deficiencies. Upon receipt of approval or approval with conditions, Navajo and/or Mont ana Refining, as applicable, shall implement the plan. Disputes arising under th is Paragraph 22.D.iii. shall be resolved in accordance with the dispute resolution provisions of this Decree. iv. Certification of Compliance with the 6 BQ Compliance Option . By no later than thirty (30) days after completion of the implement ation of all actions, if any, required pursuant to Paragraph 22.D.ii or pursuant to Paragraph 22.J.vi to come into compliance with the 6 BQ Compliance Option, Navajo and/or Montana Refining , as applicable, shall submit a report to the Applicable Federal and State Agencies that, as to each Refinery, the Refinery complies with the
Benzene Waste NESHAP. v. TAB is under 1 Mg/Yr . If the results of the BWN Compliance Review and Verification Report(s) indicate(s) that a Covered Refinery ha s a TAB of under 1 Mg/yr, the Covered Refinery shall comply with the Benzene Waste NESHAP regulations applicable to such refineries.
E. Annual Program . Navajo and Montana Refining shall establish an annual program of reviewing process information for each Covered Refinery, including but not limited to60 construction projects, to ensure that all new be nzene waste streams are included in each Covered Refinery’s waste stream inventory.
F. Benzene Spills . For each spill at each Covered Refi nery, Navajo and/or Montana Refining, as applicable, shall review such spills to determine if benzene waste was generated. Navajo and/or Montana Refining, as applicable, shall include benzene generated by such spills in the TAB for each Covered Refinery.
G. Training . i. If and when any Covered Refinery’s TAB reaches 1 Mg/yr or more, then by no later than ninety (90) days from the receipt of the information showing that a Covered Refinery’s TAB has reached or exceeded 1 Mg/yr, Navajo and/or Montana Refining, as applicable, shall develop and begin implementa tion of annual (i.e. , once each calendar year) training for all employees asked to draw benzene waste samples. ii. If and when any Covered Refinery’s TAB reaches 10 Mg/yr or more, Navajo and/or Montana Refining, as applicable, shall comp lete the development of standard operating procedures for all control equipment used to comply with the Benzene Waste NESHAP. Navajo and/or Montana Refining, as applicable, shall complete an initial training program regarding these procedures for all operators assigned to this equipment. Comparable training shall be provided to any persons who subsequently become operators, prior to their assumption of this duty. “Refresher” training shall be performed on a periodic basis. Navajo and/or Montana Refining, as applicable, shall pr opose a schedule for the initial and refresher training at the same time that Navajo and/or Montana Refining, as applicable, proposes a plan, pursuant to either Paragraph 22.D.ii, or Pa ragraph 22.J.vi, that identifies the co mpliance strategy and schedule that61 Navajo and/or Montana Refining, as applicable, will implement to come into compliance with the 6 BQ compliance option. iii. As part of Navajo and/or Montana’s training program, they must ensure that the employees of any contractors hi red to perform the requirements of this Paragraph are properly trained to implement all pr ovisions of this Paragraph at the Covered Refineries.
H. Waste/Slop/Off-Spec Oil Management

. i. By no later than ninety (90) days after the Date of Lodging of the Consent Decree, Navajo and Montana Refining shall submit to the Applicable Federal and State Agencies, for each of the Covered Refineries, schematics th at: (a) depict the waste management units (including sewers) that handle, store, and transf er waste/slop/off-spec oil streams; (b) identify the control status of each waste mana gement unit; and (c) show how such oil is transferred within the Refinery. Representatives fro m Navajo, Montana Refining, and EPA thereafter shall confer about the appropriate characteriz ation of each Refinery’s waste/ slop/off-spec oil streams for the waste management units handling such oil streams, for purposes of each Covered Refinery’s TAB calculation. At a mutually-agreed upon time, Navajo and/or Montana Refining, as applicable, shall submit, if n ecessary, revised schematics that reflect the agreements between EPA and Navajo and/or Montana Re fining regarding the characterization of these oil streams and the appropriate c ontrol standards. ii. Organic Benzene Waste Streams . For any Covered Refinery, if and when that Covered Refinery’s TAB reaches 10 Mg/yr and a compliance strategy is approved, all waste management units handling “organic” benzene wast es, as defined in Subpart FF, shall meet the applicable control standards of Subpart FF. If, as a result of the discussions between the EPA and Navajo and/or Montana Refining pursuan t to Paragraph 22.H.i, EPA and Navajo and/or62 Montana Refining agree that controls not already in place are necessary on any waste management unit handling organic benzene wastes, the Parties shall agree, in writing, to a schedule, not to exceed two years, for the completion of the installation of the necessary controls. iii. Aqueous Benzene Waste Streams . For purposes of calculating each Covered Refinery’s TAB pursuant to the requirements of 40 C.F.R. § 61.342(a), Navajo and Montana Refining shall include all waste/slop/off-sp ec oil streams that become “aqueous” until such streams are recycled to a process or put into a process feed tank (unless the tank is used primarily for the storage of wastes). If and when a Covered Refinery’s TAB reaches 10 Mg/yr, then, for purposes of complying with the 6BQ complian ce option, all waste mana gement units handling aqueous benzene waste streams sha ll either meet the applicable control standards of Subpart FF or shall have their uncontrolled benzene quantity count toward the applicable 6 megagram limit. iv. Plan to Quantify Uncontrolled Waste/Slop/Off-Spec Oil Streams . By no later than ninety (90) days after EPA ha s approved the schematics, as re vised if necessary, required under Paragraph 22.H.i., Navajo and Montana Refining shall s ubmit, for each of their Covered Refineries, a plan(s) to quantify waste/slop/off-spec oil movements for all benzene waste streams which are not controlled. EPA will review the plan and may recommend revisions consistent with Subpart FF. Upon plan a pproval, Navajo and Montana Refi ning shall maintain records quantifying such movements. v. Disputes under this Paragraph 22.H. shall be resolved in accordance with the dispute resolution provisions of this Consent Decree.
I. End of Line Sampling (If a Covered Re finery is Found to Have a TAB of 10 Mg/yr or More) . The provisions of this Paragraph 22.Ishall apply after a Covered Refinery’s TAB reaches or exceeds 10 Mg/yr and after the Covered Refinery has completed implementation63 of an approved compliance plan submitted pursuan t to either Paragraph 22.D.ii, or Paragraph 22.J.vi. The provisions shall continue to appl y through termination (“ Applicability Dates for Paragraph 22.I.”). i. By no later than two (2) months after the certification require d by Paragraph 22.D.iv, Navajo and/or Montana Refining, as applicable, shall submit to EPA for approval a plan(s) for an “end of the line” (“EOL”) determination of the benzene quantity in uncontrolled waste streams. A copy of this plan shall be submitted to the Applicable State Agency. The proposed plan of Navajo and/or Montana Refining, as applicable, shall include, but not be limited to, sampling locations, methods for flow calculations, and th e assumed volatilization ra te(s) to be used in calculating the uncontrolled benzene quantity. An y disputes regarding plan approval under this Paragraph 22.I. shall be resolved in accordance with the dispute resolution provisions of the
Consent Decree. ii. If, during the Applicability Dates for Para graph 22.I, changes in processes, operations, or other factors lead Navajo and/or Montana Re fining, as applicable, to conclude that the approved sampling locations, a pproved methods for determinin g flow calculations, and/or assumed volatilization rate s no longer provide an accurate meas ure of a Covered Refinery’s EOL benzene quantity, Navajo and/or Montana Refining, as applicable, shall submit a revised plan to EPA for approval. A copy of th is revised plan also shall be provided to the Applicable State Agency. iii. On a monthly basis, Navajo and/or M ontana Refining, as applicable, shall conduct EOL sampling, commencing during the first month of the first full calendar quarter after Navajo and/or Montana Refining, as applicable, r eceives written approval fro m EPA of the sampling plan for the particular Covered Refinery. Navajo and/or Montan a Refining, as applicable, shall64 take, and have analyzed, thr ee representative samples from each approved sampling location. Navajo and/or Montana Refining, as applicable, shall use the average of these three samples as the benzene concentration for th e stream at the approved loca tion. Based on the EOL monthly sampling results, the approved flow calculations, and the volatilization assumptions, Navajo and/or Montana Refining, as applicable, shall calculate the sum of the EOL benzene quantity for the three months contained within the respective quarter. Nothing in this Paragraph 22.I shall preclude Navajo and/or Montana Refining, as applicable, from taking representative samples more frequently within any calendar month, provi ded that Navajo and/or Montana Refining, as applicable, identifies the basis for the additional samples. Such samples shall be included in calculating the average monthly EOL benzene quantity. iv. If the sum of the EOL benzene quantity for the three month period contained within a quarter equals or exceeds 1.2 Mg, Na vajo and/or Montana Refining, as applicable, shall take and have analyzed three representative samples, drawn on separate days during the subsequent calendar quarter, of each uncontro lled stream containing benzen e over 0.05 Mg/yr, as identified in the later of (i) the final BWN Compliance Review and Verification Report; or (ii) the most recently submitted TAB report (hereinafter “Sam pling of >0.05 Streams” ). Navajo and/or Montana Refining, as applicable, shall undert ake Sampling of >0.05 Streams for the purpose of trying to identify the cause or source of the potentially elevated benzene quantities. v. Navajo and/or Montana Refining, as app licable, shall continue to undertake Sampling of >0.05 Streams in the second quarter after the EOL benzene quantity exceeded 1.2 Mg unless either: (i) the EOL benzene quantity in the fi rst quarter of the Sampling of > 0.05 Streams demonstrates that the Covered Refinery’s EOL benzene quantity, prorated on a yearly basis, will be below 4.8 Mg/yr; or (ii) Navajo and/or Montana Refining , as applicable, discovers and65 corrects the cause of the potentially elevated benzene quantities and EPA concurs in the diagnosis and corrective measures of Navajo and/or Montana Refining, as applicable. vi. If the sum of the EOL benzene quantity for two consecutive quarters indicates that the EOL benzene quantity, prorated on a yearly ba sis, will exceed 4.8 Mg/yr, and Navajo and/or Montana Refining, as applicable, has not disc overed and corrected the cause of the potentially elevated benzene through the process of Samp ling of >0.05 Streams, Na vajo and/or Montana Refining, as applicable, shall take and have analyzed three representative samples, drawn on separate days during the third calendar quarter, of each uncontrolled stream containing benzene over 0.03 Mg/yr, as identified in the later of (i) the final BWN Compliance Review and Verification Report; or ( ii) most recently submitted TAB repor t (hereinafter “Sampling of > 0.03 Streams”). Navajo and/or M ontana Refining, as applicable, shall undertake Sampling of >0.03 Streams for the purpose of continuing to try to identify the cause or source of the potentially elevated benzene quantities. vii. Sampling of >0.05 and/ or >0.03 Streams shall not be required if Navajo and/or Montana Refining, as applicable , advises EPA, and EPA concurs, that the potentially elevated benzene quantities can be attributed to an identifiable event, such as a spill to the sewer or a turnaround. After such an identifiable event, however, Navajo and/or Montana Refining, as applicable, shall calculate its projected uncontrolled benzene quantity for the calendar year in which the event occurs. If that projection is gr eater than 6 mg/yr, then Navajo and/or Montana Refining, as applicable, shall submit to EPA for approval a plan that either (a) identifies with specificity the compliance strategy and schedul e that Navajo and/or Montana Refining, as applicable, will implement to ensure that the subject Cove red Refinery does not exceed 6 Megagrams of uncontrolled benzene for the calendar year; or (b) if as a result of the quantity of66 benzene released during the event Navajo and/or Montana Refining, as applicable, is unable to propose a plan to ensure that the subject C overed Refinery’s uncontrolled benzene for the calendar year will be 6 Megagrams or less, then Navajo and/or Montana Refining, as applicable, shall identify the actions to be taken to minimize the uncontrolled benzene for the remainder of the year. A copy of this plan shall be submitted to the Applicable State Agency. Navajo and/or Montana Refining, as applicable, shall submit this plan within thirty (30) days after the end of the quarter which resulted in a projec tion of greater than 6 Mg/yr of uncontrolled benzene. Sampling of >0.05 and/or >0.03 Streams sha ll not excuse Navajo and/or M ontana Refining, as applicable, from continuing to take monthly EOL samples. viii. If in three consecutive quarters (a) the sum of the benzene quantity indicates that the EOL benzene quantity, prorated on a yearly ba sis, will exceed 4.8 Mg; or (b) the sampling of >0.05 and/or >0.03 streams indicat es that projected uncontrolled benzene for the calendar year will exceed 6 Megagrams, and Navajo and/or Montana Refining, as applicable, has not discovered and corrected, with EP A’s concurrence, the cause of the potentially elevated benzene through the process of Sampling of >0.05 and >0.03 Streams, then, in the fourth quarter, Navajo and/or Montana Refining, as applicable, shall retain a third party contractor to undertake a comprehensive TAB study and compliance revi ew (“Third-Party TAB Study and Compliance Review”). By no later than the last day of the fourth quarter, Navajo and/or Montana Refining, as applicable, shall submit a proposal to the Appli cable Federal and State Agencies that identifies the contractor, the contractor’s scope of work, and the contracto r’s schedule for the Third-Party TAB Study and Compliance Review. Unless, within thirty (30) days after EPA receives this proposal, EPA disapproves or seeks modificati ons, Navajo and/or Montana Refining, as applicable, shall authorize the contractor to co mmence work. By no later than thirty (30) days67 after Navajo and/or Montana Refining, as appli cable, receives the results of the Third-Party TAB Study and Compliance Review, Navajo and/or Montana Refining, as applicable, shall submit the results to the Applicable Federal and State Agencies. EPA, the Applicable State Agency, Navajo and/or Montana Refining, as app licable, subsequently shall discuss informally the results of the Third-Party TAB Study and Comp liance Review. By no later than one-hundred twenty (120) days after Navajo and/or Montana Refining, as a pplicable, receives the results of the Third-Party TAB Study and Compliance Review, or such other time as Navajo and/or Montana Refining, as applicable, and EPA may agree, Navajo and/or Montana Refining, as applicable, shall submit to EPA for approval a plan that addresses any defi ciencies identified in the Third-Party TAB Study and Compliance Review and any deficiencies that EPA brought to the atte ntion of Navajo and/or Montana Refining, as applicable, as a result of the Third-Party TA B Study and Compliance Review. A copy of this plan shall be submitted to the Applicable State Agency. The review and approval of this Plan shall be done in accordance with Para graph 22.D.iii of this Decree. Certification of Co mpliance shall be done in acco rdance with Paragraph 22.D.iv.
J. End of Line Sampling (TAB is equal to or greater than 1 Mg/yr but less than 10 Mg/yr) . The provisions of this Paragraph 22.J sh all apply from the date that the final BWN Compliance Review and Verification Report submitted for any Covered Refinery pursuant to Paragraph 22.C shows that a Covere d Refinery’s TAB is equal to or greater than 1 Mg/yr but less than 10 Mg/yr, through the earlier of: (1) the time that the Covered Refinery reaches a TAB of 10 Mg/yr or more (in which case, the provisions of Paragraph 22.I sha ll begin to apply); or (2) termination of the Consent Decree. i. Navajo and/or Montana Refining, as a pplicable, shall, once per calendar year, conduct sampling, consistent with the requirements of 40 C.F.R. § 61.355( c)(1) and (3), of all waste68 streams containing benzene that contributed 0.05 Mg/yr or more to the TAB set forth in the final BWN Compliance Review and Verifi cation Report or in the previ ous year’s TAB, whichever is later; ii. By no later than ninety (90) days after the date of submitting the final BWN Compliance Review and Verificati on Report, representatives from EPA and the Applicable State Agency shall meet at the Covered Refinery w ith representatives from Navajo and/or Montana Refining, as applicable, for the purpose of iden tifying an appropriate procedure for conducting EOL sampling and measuring EOL benzene quantities at that Covered Refinery. EPA, the Applicable State Agency, and Navajo and/or Mont ana Refining, as appli cable, shall confer about potential EOL sample locations and shall review process and flow inform ation and oil movement transfers. By no later than thir ty (30) days after EPA and the Applicable State Agency have met with Navajo and/or Montana, as applicable, at the Covered Refinery, Navajo and/or Montana Refining, as applicable, shall submit a plan to EPA for approval that contains proposed sampling locations and methods for flow calculations to be used in the EOL de termination of benzene quantity. A copy of this plan shall be submitted to the Applicable State Agency. Any disputes regarding plan approval under th is Paragraph 22.J shall be resolved in accordance with the dispute resolution provisions of this Consent Decr ee. If, during the life of this Consent Decree, changes in processes, operations, or other fact ors lead Navajo and/or Montana Refining, as applicable, to conclude that either the approved sampling loca tions and/or the approved methods for determining flow calculations no longer provide an accurate measure of the Covered Refinery’s EOL benzene quantity, Navajo and/or Montana Refining, as applicable, shall submit a revised plan to EPA for approval. A copy of this revised plan also shall be submitted to the Applicable State Agency.69 iii. On a quarterly basis, Navajo and/or Montana Refining, as applicable, shall conduct an EOL determination of benzene quantity, commencing in the first full calendar quarter after Navajo and/or Montana Refining, as appli cable, receives written a pproval from EPA of the sampling plan for the Covered Refi nery. Navajo and/or Montana Refining, as applicable, shall take, and have analyzed, at least three re presentative samples from each approved sampling location. Navajo and/or Montana Refining, as a pplicable, shall use the average of these three samples as the benzene concentration for the stream at the approved location. Based on the EOL quarterly sampling results and th e approved flow calculations, Nava jo and/or Montana Refining, as applicable, shall calculate the quarterly EOL benzene quantity. iv. If the quarterly EOL benzene quan tity exceeds 2.5 Mg, Navajo and/or Montana Refining, as applicable, shall submit to the Applicable Federal and State Agencies a plan that identifies with specificity the actions that Navajo and/or Montana Refining , as applicable, shall take, and the schedule for such actions, to ensure that the TAB for the Covered Refinery does not exceed 10 Mg in the calender year. v. On a quarterly basis, Navajo and/or Montana Refining , as applicable, shall also calculate a projected calendar year TAB, utilizing all EOL results for that calendar year and any other information (such as process turnarounds) to undertake the projection. If the projected calendar year calculation of the TAB at a Covered Refinery equals or exceeds 10 Mg, Navajo and/or Montana Refining, as applicable, shall submit to the Applicable Federal and State Agencies a plan that identifies with specificity the actions that Navajo and/or Montana Refining, as applicable, shall take, and the schedule for such actions, to ensure that the TAB for the Covered Refinery does not exceed 10 Mg in the cal ender year. Navajo and/or Montana Refining,70 as applicable, shall submit this plan within thirty (30) days after the end of the quarter which resulted in a projection of greater than 10 Mg. vi. If it appears that appropr iate actions cannot be taken to ensure that the Covered Refinery maintains a TAB of under 10 Mg/yr, then Navajo and/or Montana Refining, as applicable, shall retain a thir d party contractor to undertake a comprehensive TAB study and compliance review (“Third-Party TAB Study and Compliance Revi ew”). At a mutually agreed upon date, Navajo and/or Montan a Refining, as applicable, shall submit a proposal to the Applicable Federal and State Agencies 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, within thirty (30) days after EPA receives this pr oposal, EPA disapproves or seeks modifications, Navajo and/or Mont ana Refining, as applicable, shall authorize the contractor to commence work. By no later than thirty (30) days after Navajo and/or Montana Refining, as applicable, receives the results of the Third-Party TAB Study and Compliance Review, Navajo and/or Montana Refining, as applicable, shall submit the results to the Applicable Federal and State Agencies. EPA, the Applicable State Agency, and Navajo and/or Montana Refining, as applicable, subsequently shall di scuss informally the results of the Third-Party TAB Study and Compliance Review. By no later than 120 days after Navajo and/or Montana Refining, as applicable, receives the results of the Third-Party TAB Study and Compliance Review, or such other time as Navajo and/or Montana Refining, as applicable, and EPA may agree, Navajo and/or Montana Refining, as applicable, shall submit to EPA for approval a plan that identifies with specificity the compliance strategy and schedul e that Navajo and/or Montana Refining, as applicable, will implement to ensure that the Covered Refinery complies with the 6BQ compliance option as soon as practicable. A c opy of this Plan shall be submitted to the71 Applicable State Agency. The review and approva l of this Plan shall be done in accordance with Paragraph 22.D.iii of this Decree. Certification of Compliance shall be done in accordance with Paragraph 22.D.iv.72 K. Miscellaneous Measures . i. Navajo and/or Montana Refining, as and to the extent applicable, shall comply with the Benzene Waste NESHAP provisions applicable to groundwater re mediation conveyance systems at each of their Refineries having such systems. ii. The provisions of this Paragraph 22.K.ii shall apply after a C overed Refinery’s TAB reaches or exceeds 10 Mg/yr and after the Covered Refinery has completed implementation of an approved compliance plan submitted pursuant to either Paragraph 22.D. ii or Paragraph 22.J.vi. The provisions shall continue to apply until termination of the Consent Decree. Navajo and/or Montana Refining, as applicable, shall: a. Conduct monthly visual inspections of all water traps within the Covered Refinery’s individual drain systems; and b. On a weekly basis, visually inspect a ll conservation vents or indicators on process sewers for detectable leaks; reset any vents where leaks are detected; and record the results of the inspections. After tw o (2) years of weekly inspections, and based upon an evaluation of the record ed results, Navajo and/or Montana Refining, as applicable, may submit a request to the applicable EPA Region to modify the frequency of the inspections . EPA shall not unreasonably withhold its consent. Nothing in this Paragra ph 22.K.ii.b. shall requi re Navajo and/or Montana Refining, as applicable, to monitor conservation vents on fixed roof tanks. iii. From the date that the final BWN Compliance Review and Verification Report submitted for any Covered Refinery pursuant to Paragraph 22.C shows thata Covered Refinery’s TAB is equal to or greater than 1 Mg/yr but le ss than 10 Mg/yr, and thr ough termination of this Consent Decree, Navajo and/or M ontana Refining, as applicable, shall identify and mark all area drains that are segregated stormwater drains.73 L. Projects/Investigations

. Unless and until the TAB of any of the Cove red Refineries reaches or exceeds 10 Mg/yr, Navajo and Montana Refining will not be required to undertake any projects or any investigations relating to the Benzene Wa ste NESHAP other th an those required in Paragraphs 22.C - 22.K. Within 60 days of receipt of information indicating that the TAB of a Covered Refinery has reached or exceeded 10 Mg/y r, EPA and Navajo and/or Montana Refining, as applicable, shall meet and confer to discuss and estab lish an appropriate project or investigation relating to the Benzene Waste NESHAP.
M. Recordkeeping and Reporting Requirements for this Paragraph
i. Outside of the Report s Required under 40 C.F.R. § 61.357 and under the Quarterly Progress Report Procedures of Section IX (Recordkeeping and Reporting) . At the times specified in the applicable provisions of this Paragraph, Navajo and/or Montana Refining shall submit, as and to the extent required, the following reports to the Applicable Federal and State Agencies: a. BWN Compliance Review and Verifica tion Report (¶ 22.C.i.), as amended, if necessary (¶ 22.C.ii.); b. Amended TAB Report, if necessary (¶ 22.D.i.); c. Plan for a Covered Refinery to come into compliance with the 6 BQ compliance option upon discovering that its TAB e quals or exceeds 10 Mg/yr through the BWN Compliance Review and Verification Re port (¶ 22.D.ii.), or the Third-Party TAB Study and Compliance Review that may result from EOL sampling (¶ 22.J.vi); d. Compliance certification, if necessary (¶ 22.D.iv.); e. Schematics of waste/slop/off-spec oil movements (¶ 22.H.i .), as revised, if necessary (¶ 22.H.i.);74 f. Schedule to complete implementation of controls on waste management units handling organic benzene waste, if necessary (¶ 22.H.ii.); g. Plan to quantify uncontrolled waste/ slop/off-spec oil movements (¶ 22.H.iv.) h. EOL Sampling Plans (¶¶ 22.I.i., 22.J.ii,), and revised EOL Sampling Plans, if necessary (¶¶ 22.I.ii., 22.J.ii.); i. Plan, if necessary, to ensure that unc ontrolled benzene does not equal or exceed, as applicable, 6 or 10 Mg/yr -- or is minimized -- based on projected calendar year uncontrolled benzene quantities as determined through EOL sampling (¶¶ 22.I.vii., 22.J.iv.-v.) j. Proposal for a Third-Party TAB Study and Compliance Review, if necessary (¶¶ 22.I.viii., 22.J.vi.); k. Third-Party TAB Study and Complian ce Review, if necessary (¶¶ 22.I.viii., 22.J.vi.); l. Plan to implement the results of the Third-Party TAB Study and Compliance Review, if necessary (¶¶ 22.I.viii., 22.J.vi.);
ii. As part of the Reports Required under the Quarterly Progress Report Procedures of Section IX (Recordkeeping and Reporting)

.

a. TAB is equal to or greater than 1 Mg/yr but less than 10 Mg/yr . From the date that the final BWN Compliance Review and Verification Report submitted for any Covered Refinery pursuant to Paragraph 22.C shows that a Covered Refinery ’s TAB is equal to or greater than 1 Mg/yr but less than 10 Mg/yr, until the earlier of: (1) the time that the Covered Refinery reaches a TAB of 10 Mg/yr or more (in which cas e, the provisions of Paragraph 22.M.ii.b shall begin to apply); or (2) termina tion of the Consent Decree, Nava jo and/or Montana Refining, as applicable, shall submit the following information in Quarterly Progress Reports pursuant to the requirements of Section IX of this Consent Decree: (1) A description of the measures that it/they took to comply with the training provisions of Paragraph 22;75 (2) The annual, non-EOL sampling require d at the Covered Refinery pursuant to the requirements of Paragraph 22.J.i (this information shall be submitted in the first quarterly progress report for the first calendar quarter of each year); (3) The results of the quarterly EOL sampling undertaken pursuant to Paragraph 22.J.iii. for the calendar quart er. The report shall include a list of all waste streams sampled, the results of the benzene analysis for each sample, and the computation of the EOL benzene quantity for the respective quarter. The Covered Re finery shall identify whether the quarterly benzene quantity equals or exceeds 2.5 Mg and whether the projected calendar year benzene qua ntity equals or exceeds 10 Mg. If either condition is met, the Covered Re finery shall include in the quarterly report the plan required pursuant to Paragraph 22.J.iv and/or 22.J.v., and shall specifically seek EPA’s concurrence in the plan.
b. TAB is 10 Mg/yr or More . The provisions of this Paragraph 22.M.ii.b shall apply after a Covered Refinery’s TAB reaches or exceeds 10 Mg/yr and after the Covered Refinery has completed implementation of an approved compliance plan submitted pursuant to either Paragraph 22.D.ii, or Pa ragraph 22.J.vi. The provisions shall continue to appl y until termination. Navajo and/or Montana Refining, as applicable, shall submit the following information in Quarterly Progress Reports pursuan t to the requirements of Secti on IX of this Consent Decree: (1) A description of the measures that it/they took to comply with the training provisions of Paragraph 22; (2) The results of the three months of monthly EOL sampling undertaken pursuant to Paragraph 22.I.iii. for th e calendar quarter. The report shall include a list of all waste streams sampled, the results of the benzene analysis for each sample, and the computation of the EOL benzene quantity for the three months contained within the respective quarter; (3) If the quarter is one in which Navajo and/or Montana Refining, as applicable, is required to undert ake Sampling of >0.05 Streams or Sampling of >0.03 Streams at a Covere d Refinery, Navajo and/or Montana Refining, as applicable, also shall: (A) submit the results of those sampling events; (B) describe the actions thatNavajo and/or Montana Refining, as applicable, is taking to identify and correct the source of the potentially elevated benzene quantities; and (C) to the extent that Navajo and/or Montana Refining, as applicable, identifies actions to correct the76 potentially elevated benzene quantities, specifically seek EPA’s concurrence with the proposal of Navajo and/or Montana Refining, as applicable. iii. A summary of the reports, plans, a nd certifications due under the provisions of Paragraph 22 is attached as Appe ndix G to this Consent Decree.
N. Agencies to Receive Reports, Plans and Certifications Required in the Paragraph; Number of Copies . Navajo and/or Montana Refining , as applicable, shall submit all reports, plans and certifications required to be submitted under this Paragraph to the Applicable Federal and State Ag encies. For each submission, Nava jo and/or Montana Refining, as applicable, shall submit two copies to EPA, to the applicable Region, and to the Applicable State Agency. By agreement between each of the offices that are to receive the materials in this Paragraph and Navajo and/or Montana Refining, as applicable, the materials may be submitted electronically. 23. Leak Detection and Repair(“LDAR”) Program Enhancements

. In order to minimize or eliminate fugitiv e emissions of volatile organic compounds (“VOCs”), benzene, volatile hazardous air po llutants (“VHAPs”), and organic hazardous air pollutants (“HAPs”) from equipment in light liqui d and/or in gas/vapor service, Navajo and Montana Refining shall undertake at each of the Covered Refineries the enhancements at Paragraph 23.A through Paragraph 23.P to each Covered Refinery’s LDAR program under Title 40 of the Code of Fede ral Regulations, Part 60, Subpart GGG; Part 61, Subparts J and V; Part 63, Subparts F, H, and CC; and applicab le state LDAR require ments. The terms “equipment,” “in light liquid serv ice” and “in gas/vapor service” sh all have the definitions set forth in the applicable provisions of Title 40 of the Code of Federal Regulations, Part 60, Subpart GGG; Part 61, Subparts J and V; Part 63, Subparts F, H and CC; and applicable state77 LDAR regulations. Nothing in this Paragra ph 23 shall be construed to require Navajo or Montana Refining to include in the enhanced program described herein any equipment or units not otherwise subject to any applicab le federal or state LDAR regulation. A. Written Refinery-Wide LDAR Program . By no later than 120 days after the Date of Lodging of the Consent Decree, Navajo and M ontana Refining shall de velop and maintain, for each of the Covered Refineries, a written, Refi nery-wide program for compliance with all applicable federal and state L DAR regulations, and, in addition with respect to Navajo, for compliance with permit 195-M15 (including any fu ture modifications to this permit occurring during the life of this Consent Decree). Until termination of this Decree, Navajo and Montana Refining shall implement this program on a Re finery-wide basis, and Navajo and Montana Refining shall update each Cove red Refinery’s program as n ecessary to ensure continuing compliance. Each Refinery-wide program shall include at a minimum: i. An overall, Refinery-wide leak rate goal that will be a target for achievement on a process-unit-by-process-unit basis; ii. An identification of all equipment in lightliquid and/or in gas/vapor service that has the potential to leak VOCs, HAPs, VHAPs, and benz ene within process units that are owned and maintained by each Refinery; iii. Procedures for identifying leaking equipment within process units that are owned and maintained by each Refinery; iv. Procedures for repairing and keeping track of leaking equipment; v. Procedures for identifying and includingin the LDAR program new equipment; and vi. A process for evaluating new and repl acement equipment to promote consideration and installation of equipment that will minimize leaks and/or eliminate chronic leakers.78 B. Training . By no later than one year from the Date of Lodging of the Consent Decree, Navajo and Montana Refining sh all implement the following trai ning programs at each of its Refineries: i. For personnel newly-assigned to LDAR responsibilities, Navajo and Montana Refining shall require LDAR training prior to each employee beginning such work; ii. For all personnel assigned LDAR respons ibilities, Navajo and Montana Refining shall provide and require completion of annual LDAR training; and iii. For all other Refinery operations and maintenance personnel (including contract personnel), Navajo and Montana Refining shall provide and re quire completion of an initial training program that includes instruction on asp ects of LDAR that are relevant to the person’s duties. Until termination of this Decree, “refresher” training in LDAR shall be performed on a three year cycle.
C. LDAR Audits . Commencing upon the Date of Lodging of the Consent Decree, Navajo and Montana Refining shall implement at each of the Covered Refineries, the Refinery-wide audits set forth in Paragraphs 23.C.i. and 23.C.ii., to ensure each Refinery’s compliance with all applicable LDAR requirement s. The LDAR audits shall include but not be limited to, comparative monitoring, records review, tagging, data management, and observation of the LDAR technicians’ calib ration and monitoring techniques. i. Third-Party Audits . Navajo and Montana Refining shall retain a contractor(s) to perform a third-party audit of each Refinery’s LDAR program at least once every four years. The first third-party audit for two of the three Covere d Refineries shall be co mpleted no later than one year from the Date of Lodging of the Consent Decree. The audit of the remaining Covered Refinery shall be completed within two years from the Date of Lodging of the Consent Decree.79 ii. Internal Audits . Navajo and Montana Refining sh all conduct internal audits of each Covered Refinery’s LDAR prog ram by sending personnel familiar with the LDAR program and its requirements from one or more of the Covered Refineries or locations to audit another Covered Refinery. Navajo and M ontana Refining shall complete the first round of these internal LDAR audits by no later than two years from the date of the completion of the third-party audits required in Paragraph 23.C.i. Internal audits of each Covered Refinery sh all be held every four years thereafter for the life of this Consent Decree. iii. To ensure that an audit at each Covered Refinery occurs every two years, third-party and internal audits shall be separated by two years. iv. Alternative . As an alternative to the internal audits required by Paragraph 23.C.ii., Navajo and/or Montana Refining may elect to retain third-parties to undertake these audits, provided that an audit of each Covered Refinery occurs every two (2) years. D. Implementation of Actions Necessary to Correct Non-Compliance

. If the results of any of the audits conducte d pursuant to Paragraph 23.C at any of the Covered Refineries identify any areas of non-co mpliance, Navajo and/or Montana Refining, as applicable, shall implement, as s oon as practicable, all steps nece ssary to correct the area(s) of non-compliance, and to prevent, to the extent practicable, a recurrence of the cause of the non-compliance. Until termination of the Consen t Decree, Navajo and Montana Refining shall retain the audit reports generated pursuant to Pa ragraphs 23.C.i and 23.C. ii and shall maintain a written record of the corrective actions that Nava jo and Montana Refining take at each of the Covered Refineries in response to any deficiencies identified in any audits. In the quarterly report submitted pursuant to the provisions of Section IX of this Consent Decree (Recordkeeping and Reporting) for the first calendar quarter of each year, Navajo and Montana Refining shall80 submit the audit reports and corrective action records for audits performed and actions taken during the previous year.
E. Internal Leak Definiti on for Valves and Pumps; Compressor Compliance . Navajo and Montana Refining shall 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 of lower leak definitions. i. Leak Definition for Valves . By no later than two years after the Date of Lodging of this Consent Decree, Navajo and Montana Refining shall utilize an internal leak definition of 500 ppm VOCs for all of their Refineries’ va lves, excluding pressure relief devices. ii. Leak Definition for Pumps . Navajo and Montana Refining shall utilize an internal leak definition of 2000 ppm for their Refi neries’ pumps by the following dates: a. By no later than eighteen (18) months after the Date of Lodging of this Consent Decree, Navajo and Montana Refining shall utilize this definition for 50% of the total number of pumps that each of them has at their respective Covered Refineries; b. By no later than twenty-four (24) months after the Date of Lodging of this Consent Decree, Navajo and Montana Refining shall utilize this definition for 85% of the total number of pumps that each of them has at their respective Covered Refineries; c. By no later than forty (40) months after the Date of Lodging of this Consent Decree, Navajo and Montana Refining shall utilize this de finition for all of the pumps that each of them has at their respectiv e Covered Refineries. iii. Two Compressors: NSPS Applicability . The FCCU wet gas compressor at the Artesia Refinery (“Artesia FCCU Wet Ga s Compressor”) and the Crude Unit overhead compressor at the Lovington Refinery (“Lovingt on Crude Compressor”) sha ll be subject to, and81 commence compliance with, the requirement s of 40 C.F.R.§ 60.482-3, and the corollary reporting and recordkeeping require ments, by the following dates: Artesia FCCU Wet Gas Compressor December 31, 2003 Lovington Crude Compressor Date of Lodging F. Reporting, Recording, Tr acking, Repairing and Remo nitoring Leaks of Valves and Pumps Based on the In ternal Leak Definitions

. i. Reporting . For regulatory reporting purposes, Navajo and Montana Refining may continue to report leak rates in valves and pumps against th e applicable regulatory leak definition, or may use the lower, internal l eak definitions specified in Paragraph 23.E. ii. Recording, Tracking, Repairing and Remonitoring Leaks . Navajo and Montana Refining shall record, track, re pair and remonitor all leaks in excess of the internal leak definitions of Paragraphs 23.E.i and 23.E.ii at such time as those definitions become applicable, except that Navajo and Montana Refining shall have thirty (30) days to make repairs and remonitor leaks that are greater than the internal leak definitions but less than the applicable regulatory leak definitions. G. First Attempt at Repairs on Valves . Beginning no later thanninety (90) days after the Date of Lodging of the Consent Decree, Navajo and Montana Refini ng shall make a “first attempt” at repair on any valve that has a reading great er than 200 ppm of VOCs, excluding control valves, pumps, and components that L DAR personnel are not authorized to repair. Navajo and Montana Refining, or their designat ed contractor, however, shall remonitor, by no later than the end of the next calendar day, all valves that L DAR personnel attemp ted to repair. Unless the remonitored leak rate is greater than the applicable leak definition, no further action will be necessary. If, after two years from the commencement of the “fir st attempt at repair”82 program set forth in this Para graph 23.G, Navajo and Montana Refining can demonstrate with sufficient monitoring data that the “first attemp t” repair at 200 ppm will worsen or not improve a Refinery’s leak rates, Navajo and Montana Refining may request that EPA reconsider or amend this requirement. H. LDAR Monitoring Frequency . i. Pumps . When the lower leak definition fo r pumps becomes applicable pursuant to Paragraph 23.E.ii, Navajo and Montana Refining shall mon itor pumps at the lower leak definition on a monthly basis. ii. Valves . At the Artesia and Lovington Refineri es, on and after the Date of Lodging of the Consent Decree, Navajo shall continue to implement a program to monitor valves more frequently than is required by a pplicable regulations by monitori ng valves -- other than difficult to monitor or unsafe to monitor valves -- on a quarterly basis, with no ability to skip periods on a process-unit-by-process-unit basis. At the Great Falls Refinery, by no later than two years after the Date of Lodging of the Consent Decree, Montana Refining shall implement a program to monitor valves more frequently than is required by applicable regulations by monitoring valves – other than difficult to monitor or unsafe to monito r valves -- on a quarterly basis, with an option to utilize the semi-annual skip period, but not the annual skip period. If, however, a process unit is subject to the Hazardous Organic NESHAP (“HON”) or the modified-HON option in the Refinery MACT, Navajo and Mont ana Refining must comply with the monitoring requirements in the applicable regulation.
I. Electronic Monitoring, Storing, and Reporting of LDAR Data

. i. Electronic Storing a nd Reporting of LDAR Data . At each of the Covered Refineries, Navajo and Montana Refining have and will continue to maintain an electronic database for83 storing and reporting LDAR data. By no later than six months af ter the Date of Lodging, the electronic database shall include data identifying the date and time of the monitored event, and the operator and instrument used in the monitored event. ii. Electronic Data Collection During L DAR Monitoring and Transfer Thereafter . By no later than six months after the Date of Lodg ing for Navajo, and one year after the Date of Lodging for Montana Refining, Navajo and Montana Refining shall submit to the Applicable Federal and State Agencies operational specifications designed to minimize the use of any form of data collection and data transfer during and after LDAR m onitoring other than electronic data collection and transfer. After approval of these operational spec ifications, Navajo and Montana Refining shall use dataloggers and/or electronic data collection devices during all LDAR monitoring. Navajo and Montana Refining, or th eir designated contractor, shall use its/their best efforts to transfer, on a daily basis, electronic data from electronic data logging devices to the electronic database of Pa ragraph 23.I.i. For all monitoring events in which an electronic data collection device is used, the collected monitoring data shall include a time and date stamp. Navajo and Montana Refining may use paper logs where necessary or more feasible (e.g., small rounds, remonitoring, or when dataloggers are not available or broken), and shall record, at a minimum, the identification of the technician undertaking the monitoring, the date, and the identification of the monitoring equipment. Na vajo and Montana Refining shall use their best efforts to transfer any manually recorded m onitoring data to the electronic database of Paragraph 23.I.i within se ven days of monitoring.
J. QA/QC of LDAR Data . By no later than ninety (90) days after the Date of Lodging of the Consent Decree, Navajo and Montana Refi ning, or a third party contractor retained by Navajo and Montana Refining, shall develop and implement a procedure to ensure a quality84 assurance/quality control (“QA/QC”) review of all data generated by LDAR monitoring technicians. Navajo and Montana Refining shall ensure that monitoring data provided to Navajo and Montana Refining by its contractors is reviewed for QA/QC before the contractor submits the data to Navajo and Montana Refining. At least once per calendar quarter, Navajo and Montana Refining shall perform QA/ QC of the contractor’s monito ring data which shall include, but not be limited to: number of components mon itored per technician, time between monitoring events, and abnorma l data patterns.
K. LDAR Personnel . By no later than the Date of Lodging of the Consent Decree, Navajo and Montana Refining shall estab lish a program that will hold LDAR personnel accountable for LDAR performance. Navajo a nd Montana Refining shall maintain a position within each Covered Refinery responsible fo r LDAR management, with the authority to implement improvements.
L. Adding New Valves and Pumps . By no later than one hundred and twenty (120) days from the Date of Lodging, Navajo and Montana Refining sh all establish a tracking program for maintenance records (e.g., a Management of Change program) to ensure that valves and pumps added to each Refinery during maintenance and construction is integrated into the LDAR
program. M. Calibration/Calibration Drift Assessment . i. Calibration . Navajo and Montana Refining sh all conduct all calib rations of LDAR monitoring equipment using methane as the calibration gas, in accordance with 40 C.F.R. Part 60, EPA Reference Test Method 21. ii. Calibration Drift Assessment . Beginning no later than the Date of Lodging of the Consent Decree, Navajo and Montana Refiningshall conduct calibrati on drift assessments of85 LDAR monitoring equipment at the end of each monitoring shift, at a minimum. Navajo and Montana Refining shall conduct the calibration drift assessment using, at a minimum, a 500 ppm calibration gas. If any calibration drift assessment after the initial calibration shows a negative drift of more than 10% from the previous ca libration, Navajo and Montana Refining shall remonitor all valves that were monitored since the last calibration that had a reading greater than 100 ppm and shall remonitor all pum ps that were monitored since the last calibration that had a reading greater than 500 ppm. N. Delay of Repair . Beginning no later than the Date of Lodging of the Consent Decree, for any equipment for which Navajo and Mont ana Refining are allowed, under the applicable regulations, to place on the "delay of repair" list for repair:86 i. For all equipment, Navajo and Montana Refining shall : a. Require sign-off by the unit supervisor that the piece of equipment is technically infeasible to repair without a process unit shutdown, before th e component is eligible for inclusion on the "delay of repair" list; and b. Include equipment that is placed on the “delay of repair” list in Navajo’s and Montana Refining’s regular LDAR monitoring. ii. For valves : For valves, other than control va lves, leaking at a rate of 10,000 ppm or greater, Navajo shall continue to use its “drill and tap” method for fixing such leaking valves, rather than placing the valve on the “delay of repair” list, unless Nava jo can demonstrate that there is a safety, mechanical, or major environmen tal concern posed by repairing the leak in this manner. After two unsuccessful attempts to repair a leaking valve through the drill and tap method, Navajo may place the leaking valve on its “delay of repair” list. If a new method develops for repairing such valves, Navajo will advise EPA prior to implementing such new method. For valves, other than control valves , leaking at a rate of 50,000 ppm or greater, Montana Refining shall undertake extraordinary efforts to fix su ch leaking valves, rather than placing the valve on the “delay of repair” list, unless Montana Refining can demonstrate that there is a safety, mechanical, or major environmen tal concern posed by repairing the leak in this

manner. iii. For pumps: At such time as the lower leak rate definition applies pursuant to Paragraph 23.E.ii, for pumps leaking at a rate of 2000 ppm or greater, Navajo and Montana Refining shall undertake their best efforts to isol ate and repair such pumps with a first attempt at fifteen (15) days. O. Recordkeeping and Reporting Requirements for this Paragraph

.87 i. Outside of the Reports Required under 40 C.F.R. § 63.654 and the Quarterly Progress Report Procedures of Section IX (Recordkeeping and Reporting)

. a. Written Refinery-Wide LDAR ProgramNo later than thirty (30) days after completion of the development of the written refinery-wide LDAR programs that Navajo and Montana Refining develop pursuant to Pa ragraph 23.A, Navajo and Montan a Refining shall submit a copy of each Refinery’s Program to the Applicable Federal and State Agencies. b. Submission of Operational Specifications for Electronic Data Collection during LDAR Monitoring and Certification of Use of Electronic Data Collection during LDAR Monitoring . By no later than six months after the Date of Lodg ing for Navajo, and one year after the Date of Lodging for Montana Refining, Navajo and Montana Refining shall submit to the Applicable Federal and State Agencies operational specifications designed to minimize the use of any form of data collection and data transfer during and after LDAR m onitoring other than electronic data collection and transfer. ii. As Part of Either the Re ports Required under 40 C.F.R. § 63.654 or the Quarterly Progress Report Procedures of Section IX (Recordkeeping and Reporting) . Consistent with the requirements of Section IX (Reco rdkeeping and Reporting), Navajo and Montana Refining shall include the following information, at the followi ng times, in their quart erly progress reports: a. First Quarterly Progress Re port Due under the Consent Decree . At the later of: (i) the first quarterly progress report due under the Consent Decree; or ( ii) the first quarterly progress report in which the requirement becomes due, Navajo and Montan a Refining shall include the following: (1) A certification of the implementation of the “first attempt at repair” program of Paragraph 23.G;88 (2) A certification of the implementati on of QA/QC procedures for review of data generated by LDAR technici ans as required by Paragraph 23.J; (3) An identification of the individual at each Refinery responsible for LDAR performance as required by Paragraph 23.K; (4) A certification of the development of a tracking program for new valves and pumps added during maintenance and constr uction as required by Paragraph 23.L; (5) A certification of the implementation of the calibration drift assessment procedures of Pa ragraph 23.M; and (6) A certification of the implementation of the “delay of repair” procedures of Paragraph 23.N. b. Quarterly Progress Report for the First Calendar Quarter of Each Year . Until termination of the Consent Decree, in the quart erly progress report that Navajo and Montana Refining submit pursuant to Section XI for the first calendar quarter of each year, Navajo and Montana Refining shall include an identification of each audit that was conducted pursuant to the requirements of Paragraph 23.C in the previous calendar year including, for each Covered Refinery, an identification of the auditors, a su mmary of the audit results, and a summary of the actions that Navajo and Montana Refining took or intend to take to correct all deficiencies identified in the audits. c. In Each Report due under 40 C.F.R. § 63.654. In each report due under 40 C.F.R. § 63.654, Navajo and Montana Refining shall include: (1) Training . Information identifying the m easures that Navajo and Montana Refining took to comply with th e provisions of Paragraph 23.B; and (2) Monitoring . The following information on LDAR monitoring: (a) a list of the process units monitored during th e quarter; (b) the number of valves and pumps monitored in each process unit; (c) the number of valves and pumps found leaking; (d) the number of “difficult to monitor” pieces of equipment monitored; (e) the project ed month of the next monitoring89 event for that unit; and (f) a list of all equipment currently on the “delay of repair” list and the date each component was placed on the list. iii. A summary of the reports, plans, a nd certifications due under the provisions of Paragraph 23 is attached as Appe ndix H to this Consent Decree.
P. Agencies to Receive Reports, Plans and Certifications Required in this Paragraph; Number of Copies . Navajo and/or Montana Refini ng, as applicable, shall submit all reports, plans and certifications required to be submitted under this Paragraph to the Applicable Federal and State Ag encies. For each submission, Nava jo and/or Montana Refining, as applicable, shall submit two copies to EPA, to the applicable Region, and to the Applicable State Agency. By agreement between each of the offices that are to receive the materials in this Paragraph and Navajo and/or Montana Refining, the materials may be submitted electronically. 24. Incorporation of Consent Decree Requirements into Federally-Enforceable Permits . A. Within 180 Days After Lodging . As soon as practicable following the Date of Lodging of the Consent Decree, but in no even t later than 180 days following the Date of Lodging of the Consent Decree, Navajo and Montana Refining shall submit applications to the Applicable State Agency to incorporate the emission limits, standards, and/or schedules required by the Consent Decree that are effective as of the Date of Lodging of the Consent Decree into minor or major new source review permits or other permits (other than Title V permits) which are federally enforceable. Following submission of the permit applicati on, Navajo and Montana Refining shall cooperate with the Applicable State Agency by promptly submitting to the Applicable State Agency all information that the Applicable State Agency seeks following its receipt of the permit application. Upon issuance of such permits, Navajo and Montana Refining90 shall file any applications necessary to incorporate the requirements of those permits into the Title V permits of the Covered Refineries.
B. At Variable Times . As soon as practicable, but in no ev ent later than thirty (30) days after the effective date or es tablishment of any emission limits , standards and schedules under Section V of this Consent Decree, Navajo and Montana Refining shall submit applications to the Applicable State Agency to incorporate those emission limitations, standards, and/or schedules into minor or major new source review permits or other permits (other than Title V permits) which are federally enforceable. Following s ubmission of the permit application, Navajo and Montana Refining shall cooperate with the Applicable State Agency by promptly submitting to the Applicable State Agency all information that the Applicable State Agency seeks following its receipt of the permit application. Upon issuance of such permits, Navajo and Montana Refining shall file any applications necessary to incorporate the requirements of those permits into the Title V permits of the Covered Refineries. C. Mechanism for Title V Incorporation . The Parties agree that the incorporation of the requirements of this Consent Decree into T itle V permits shall be in accordance with state Title V rules. 25. Obtaining Construction Permits . Navajo and Montana Refining agree to use best efforts to obtain all required, fe derally enforceable permits for the construction of the pollution control technology and/or the in stallation of equipment necessary to implement the affirmative relief and environmental projects set forth in this Section V and in Section VIII. To the extent that Navajo and/or Montana Refining must submit permit applications for this construction or installation to the Applicable St ate Agencies, Navajo and Montan a Refining sha ll cooperate with the Applicable State Agency by promptly submitting to the Applicable State Agency all91 information that the Applicable State Agency seeks following its receipt of the permit application. This Paragraph 25 is not intended to prevent Navajo and/or Montana Refining from applying to the Applicable State Agency for a pollution control project exemption.
VI. EMISSION CREDIT GENERATION 26. Emission Credit Generation . A. Summary . The intent of this Section generally is to prohibit Navajo and Montana Refining from using the emissions reductions that will result from the installation and operation of the controls required by this Consent Decr ee (“CD Emissions Reductions”) for the purpose of emissions netting or emissions offsets, while still allowing Navajo and Montana Refining to use a fraction of the CD Emissions Reductions if: (1) the emissions units for which Navajo and/or Montana Refining seek to use the CD Emissions Reductions are modifiedor constructed for purposes of compliance with Tier II gasoline or low sulfur diesel requirements; and (2) the emissions from those modified or newly-constructed units are below the levels outlined in Paragraph 26.C.ii at the time of the permit application.
B. General Prohibition . Navajo and Montana Refining sh all not generate or use any NOx, SO 2 , PM, VOC, or CO emissions reductions that result from any projects conducted or controls required pursuant to this Consent Decree as netting reductions or emissions offsets in any PSD, major non-attainment a nd/or minor New Source Revi ew (“NSR”) pe rmit or permit proceeding. C. Exception to General Prohibition . i. Conditions Precedent to Utilization of th e Exception to the General Prohibition against the Use or Generation of CD Emissions Reductions . Utilization of the exception set forth in92 Paragraph 26.C.ii to the general prohibition against the generation or utilization of CD Emissions Reductions set forth in Pa ragraph 26.B. is subject to the following conditions: a. Under no circumstances shall Navajo and/or Montana Refining use CD Emissions Reductions for netting and/or offsets prior to the time that actual CD Emissions Reductions have occurred; b. CD Emissions Reductions may be usedonly at the Covered Refinery that generated them; c. The CD Emissions Reductions provisions of this Consent Decree are for purposes of this Consent Decree only and neither Navajo, Montana Refining, nor any other entity may use CD Emissions Reductions for any purpose, including in any subsequent permitting or enforcement proceeding, except as provided herein; and d. Navajo and Montana Refining still shall be subject to all federal and state regulations applicable to the PSD, ma jor non-attainment and/or minor NSR permitting process. ii. Exception to General Prohibition . Notwithstanding the gene ral prohibition set forth in Paragraph 26.B, Navajo and Montan a Refining may use 10 tons per year of NOx and 20 tons per year of SO 2 from the CD Emissions Reductions as credits or offsets in any PSD, major non-attainment and/or minor NSR permit or pe rmit proceeding occurring after the Date of Lodging of the Consent Decree, provided that the new or modified emissions unit: (1) is being constructed or modified for purposes of complia nce with Tier 2 gasoline or low sulfur diesel requirements; and (2) already has emissions limits at the time of permitting as follows: a. For heaters and boilers, a limit of 0.020 lbs NOx per million BTU or less on a 3-hour rolling average basis; b. For heaters and boilers, a limit of 0.10 grains of hydrogen sulfide per dry standard cubic foot of fuel gas or 20 ppmvd SO 2 corrected to 0% O 2 both on a 3-hour rolling average; c. For heaters and boilers, no liquid or solid fuel firing capabilities; d. For FCCUs, a limit of 20 ppmvd NOx corrected to 0% O 2 or less on a 365-day rolling average basis;93 e. For FCCUs, a limit of 25 ppmvd SO 2 corrected to 0% O 2 or less on a 365-day rolling average basis; and f. For SRPs, NSPS Subpart J emission limits. D. Outside the Scope of the General Prohibition . Nothing in this Section VI is intended to prohibit Navajo or Montana Refining from seeking to: (1) utilize or generate emissions credits or reductions fro m refinery units that are covere d by this Consent Decree to the extent that the proposed credits or reductions represent the difference between the emissions limitations set forth in this Consent Decree for these refinery units and the more stringent emissions limitations that Navajo or Montana Re fining may elect to accept for these refinery units in a permitting process; or (2) utilize or generate emissions credits or reductions on refinery units that are not covered by this Consent Decree.
VII. MODIFICATIONS TO IMPLEMENTATION SCHEDULES 27. Securing Permits. For any work under Sections V or V III of this Consent Decree that requires a federal, state and/or local permit or approval, Navajo and/or Montana Refining, as applicable, shall be res ponsible for submitting in a timely fashi on applications for federal, state and local permits and approvals for work and activities required so that permit or approval decisions can be made in a timely fashion. Navajo and/or Montan a Refining, as applicable, shall use its/their best efforts to: (i) submit permit applications (i.e. , applications for permits to construct, operate, or their e quivalent) that comply with all applicable requirements; and (ii) secure approval of permits after filing the applications, including timely supplying additional information, if requested. If it appears that the failure of a governmental entity to act upon a timely-submitted permit application may delay Navajo’s or Montana Refining’s performance of work according to an applicable implementation schedule, Navajo and/or Montana Refining, as94 applicable, shall notify the Appli cable Federal and State Agencies of any such delays as soon as Navajo and/or Montana Refining, as applicable, reasonably concl udes that the delay could affect its/their ability to comply with the implementation schedule set forth in this Consent Decree. Navajo and/or Montana Refining, as app licable, shall propose for approval by EPA a modification to the applicable schedule of imp lementation. EPA, in consultation with the Applicable State Agency, shall not unreasona bly withhold its consent to requests for modifications of schedules of imp lementation if the requi rements of this Para graph are met. All modifications to any dates initially set forth in this Decree or in any approved schedule of implementation shall be signed in writing by EPA and Navajo and/or Montana Refining, as applicable, and neither the United States nor Navajo nor Montana Refining, as applicable, shall be required to file such modi fications with the Court in or der for the modifications to be effective. Stipulated penaltie s shall not accrue nor be due a nd owing during any period between an originally-scheduled implementation date and an approved modifi cation to such date; provided however, that Applicable Federal and State Agencies shall retain the right to seek stipulated penalties if EPA does not approve a modification to a date or dates. The failure of a governmental entity to act upon a timely-submitte d permit or approval application shall not constitute a force majeure event triggering the requirements of Section XIV; this Paragraph shall apply.
28. Commercial Unavailability of Contro l Equipment and/or Additives . Navajo and/or Montana Refining, as applicable, shall be solely responsible for compliance with any deadline or the performance of any work described in Sections V and VIII of this Consent Decree that requires the acquisition and installation of control equipment and/or catalyst additive. If it appears that the commercial unavailability of any control equipment and/or catalyst additive may95 delay Navajo’s or Montana Refining’s perfo rmance of work according to an applicable implementation schedule, Navajo and/or Montana Refining, as applicable, shall notify the Applicable Federal and State Agencies of any su ch delays as soon as Navajo and/or Montana Refining, as applicable, reasonably concludes that the delay could affect its/their ability to comply with the implementation schedule set forth in this Consent Decree. Navajo and/or Montana Refining, as applicable, shall propos e for approval by EPA a modification to the applicable schedule of implementation. Prior to the notice required by this Paragraph 28, Navajo and/or Montana Refining, as applicable, must have contacted a reasona ble number of vendors of such equipment or additive and obtained a written representation (or equivalent communication to EPA) from the vendor that the equipment or additive is commercially unavailable. In the notice, Navajo and/or Montana Re fining, as applicable, shall refe rence this Paragraph 28 of this Consent Decree, identify the milestone date(s) it/they contend it/they will not be able to meet, provide the Applicable Federal and State Ag encies with written correspondence to the vendor identifying efforts made to secure the control equipment or catalyst additive, and describe the specific efforts Navajo and/or Montana Refining, as applicable, has taken and will continue to take to find such equipment or additive. Navajo and/or Montana Refining, as applicable, may propose a modified schedule or modification of other requireme nts of this Consent Decree to address such commercial unavailability. Section XV (“Retention of Jurisdiction/Dispute Resolution”) shall govern the resolution of any claim of commercial unavailability. EPA, in consultation with the Applicable State Agency , shall not unreasonably withhold its consent to requests for modifications of sche dules of implementation if the requirements of this Paragraph are met. All modifications to any dates initially set forth in this Consent Decree or in any approved schedule of implementation shall be signed in writing by EPA and Navajo and/or96 Montana Refining, as applicable, and neither th e United States nor Navajo nor Montana Refining shall be required to file such modifications with the Court in order for the modifications to be effective. Stipulated penaltie s shall not accrue nor be due a nd owing during any period between an originally-scheduled implementation date and an approved modifi cation to such date; provided however, that the Applicab le Federal and State Agencies shall retain the right to seek stipulated penalties if EPA does not approve a modification to a date or dates. The failure by Navajo and/or Montana Refining, as applicable , to secure control equipment and/or catalyst additive shall not constitute a force majeure event triggering the re quirements of Section XIV; this Paragraph shall apply.
VIII. ENVIRONMENTALLY BENEFICIAL PROJECTS 29. Compliance with NSPS Subpart QQQ at the Artesia and Lovington Refineries . A. Plan to Comply with NSPS Subpart QQQ . By no later than 180 days after the Date of Lodging of the Consent Decree, Navajo shall submit a plan to EPA and the NMED that sets forth with specificity the actions, including but not limited to, the installation of any necessary control equipment, that Navajo will take to ensure that the Artesia and Lovington Refineries comply, by no later than December 31, 2003, with the require ments of the NSPS at Subpart QQQ, 40 C.F.R. §§ 60.690 - 60.699, The plan shall include a propos ed schedule of implementation for the installation of any necessary cont rol equipment. The plan sha ll also include proposed schedules for compliance with the monitoring, testing, recordkeeping, and repor ting requirements of 40 C.F.R. §§ 60.695 - 60.698. The plan shall be subj ect to the approval of, disapproval of, or modification by EPA, which shall act in consu ltation with the NMED. Within sixty (60) days after receiving any notification of disapproval or request for modification from EPA, Navajo shall submit to EPA and the NMED a revised plan that responds to all identified deficiencies.97 Upon receipt of approval or a pproval with conditions, Navajo shall implement the plan. Disputes arising under this Paragraph 29 shall be resolved in accordance with the dispute resolution provisions of this Decree. B. NSPS Applicability . By no later than December 31, 2003, the individual drain systems, oil-water separators, and aggregate facilities, as those terms are defined at 40 C.F.R. § 60.691, at the Artesia and Lovington Refineries sha ll be affected facilities, as that term is used in the NSPS, 40 C.F.R. Part 60, and shall be subject to and comply with the requirements of 40 C.F.R. Part 60, Subpart QQQ. 30. Operation of the 40 LTD Sulfur Recovery Unit at the Artesi a Refinery on Hot Standby. By no later than December 31, 2003, Navajo shall complete the installation of all equipment, piping, instrumentation, and controls necessary to permit Navajo to operate the 40 LTD sulfur recovery unit at the Artesia Refine ry continuously on “hot” stand-by. By no later than February 28, 2004, Navajo will submit to EP A and the NMED a plan to study how to limit Acid Gas Flaring and emissi ons in excess of 250 ppm SO 2 from the TGU during the limited periods in which the Artesia SRP experiences a Malfunction. The study plan shall include a schedule for implementation that Navajo will implement. Navajo shall incorporate the results of this study into the Preventative Maintenance and Operation Plan (“PMO Plan”) that Navajo prepares pursuant to the re quirements of Paragraph 20.D.
31. Installation of an Additional Wet Gas Compressor at the Artesia FCCU . By no later than December 31, 2003, Navajo shall complete the installation of an additional wet gas compressor at the Artesia FCCU. Navajo shall operate the additional wet gas compressor so as to minimize the duration of any AG or HC Flaring Incidents associated with outages of the original wet gas compressor.98 32. Community SEPs for Navajo . Navajo shall c onduct one or more supplemental environmental projects, such as odor control, wildlife habitat restora tion, and/or water quality improvement, designed to benefit the community of Artesia. Navajo shall submit for EPA’s and NMED's approval a detaile d written proposal for each project. The total value of the project(s) shall equal or exceed $200,000. Upon written approval of EPA a nd the NMED, Navajo shall implement the project(s) and submit a cost report, certified as accurate unde r penalty of perjury by the responsible corporate official, upon its/th eir completion. Navajo shall complete the project(s) by June 30, 2003, unless NMED approves in writing an extension to this deadline. If Navajo does not expend the entire $200,000 by June 30, 2003, or a later da te approved by NMED as specified above, Navajo shall pay a stipulat ed penalty equal to th e difference between the amount expended as demonstrated in the certif ied cost report(s) and $200,000. The stipulated penalty shall be paid to the St ate of New Mexico by corporate or certified check at the address specified in Section X (Civil Penalty) of the Consent Decree. 33. Environmental Management Syst em Baseline Assessment for Navajo . A. Conduct of Baseline Assessment . Navajo agrees to reta in and pay an independent consultant (“Independent Cons ultant”) to conduct an Envi ronmental Management System (“EMS”) Baseline Assessment, prepare audit and evaluation reports, and make recommendations for improvement of the envir onmental management system at the Artesia Refinery.
B. Scope of Work

. i. Baseline Assessment. The baseline assessment shall evaluate the following aspects of refinery management re lated to environmental compliance and management and may evaluate any other aspect of refinery management which the Independent Consultant finds relevant and appropriate, including but not limited to:99 a. formal and informal corporate environmental compliance policies, practices and procedures; b. formal and informal corporate policies, practices, and procedures which affect environmental compliance; c. educational and training programs for managers and employees; d. equipment purchase, operati on and maintenance, and inve ntory control programs; e. policies, practices, and procedures regarding communication and coordination between production and environm ental compliance personnel; f. environmental compliance officer programs; g. budgeting and planning systems for environmental compliance; h. monitoring, record keeping, and reporting systems; i. in-plant and community emergency plans; j. other internal communication and control systems; and k. systems for hazard identif ication and risk assessment. ii. Baseline Assessment Report. a. The baseline assessment report shall a ddress each aspect of refinery management described above and any other as pect of refinery management which the Independent Consultant deems relevant and appropriate. b. For any aspect of Navajo’s refinery management which the Independent Consultant believes should be imp roved, the baseline assessment report shall make specific recommendations for improvement and specify a schedule for implementa tion. The schedule of implementation shall take into account the schedule for installation of pollution control equipment under the Consent Decree, as appropriate.100 C. Selection of Independent Consultant . Navajo shall propose to NMED one or more persons or firms to be the Inde pendent Consultant. The person(s) or firm(s) shall demonstrate competence and technical proficiency in the conduct of environmenta l management system baseline assessments and audits. Navajo shall not execute a c ontract under Paragraph 33.D until NMED approves in writing the person or firm to be the Independent Consultant, which approval shall not be unreasonably withhe ld. In approving a person or firm to be the Independent Consultant, NMED may consider any relevant factor, including but not limited to competence and technical proficienc y and the relationship between the I ndependent Consultant and Navajo.
D. Contract with Independent Consultant

. i. Within one hundred twenty (120) days of the Date of Lodging of the Consent Decree, Navajo shall execute a contr act, approved by NMED, with the Independent Consultant. ii. Navajo shall submit a copy of the executed contract to the NMED. iii. Navajo shall provide a copy of this Consent Decree to the Independent Consultant before execution of the contract.
E. Baseline Assessment Report . Within two hundred and ten (210) days of the Date of Lodging of the Consent Decree, the Independent Consultant shall prepare and submit the baseline assessment report to Navajo.
F. Implementation of Recommendations

. i. Navajo shall implement all recommendations according to the schedule for implementation, except as pr ovided in Paragraph 33.G. ii. Beginning on December 31, 2002, Navajo sh all prepare a quarterly progress report describing its implementation of recommendations.101 iii. On June 30, 2003, June 30, 2004, and after the implementation of all recommendations, the Independent Consultant shall prepare anevaluation report regarding Navajo's implementation of r ecommendations. The evaluation report shall, as necessary, describe any additional recomme ndations and a schedule of imp lementation. Navajo shall implement these recommendations and provide progress reports as described above, except as provided in Paragraph 33.G. G. Dispute Resolution

. i. Within thirty days after the Independent Consultant submits the baseline assessment report or evaluation report, Navajo shall advise NMED, in writing, of any recommendation or schedule for implementation which Navajo believes to be illegal or economi cally or technically impractical. ii. If NMED disagrees with Navajo’s objection to a recommendation or schedule for implementation, NMED sha ll notify Navajo of the disagreemen t. NMED and Navajo shall meet within fifteen days of the notification to info rmally resolve the disagreement. The Independent Consultant shall prepare for and atte nd the meeting at Navajo’s expense. iii. If NMED and Navajo cannot informally resolve the disagreemen t, the objection shall be submitted for arbitration. Within fifteen days of such submittal, each party shall select one arbitrator, who shall, within thirty days, select by mutual agreement a third arbitrator who shall conduct the arbitration pursuant to the current ru les of the American Ar bitration Association (“AAA”). All expedited procedures prescribed by AAA rules shall apply. The Independent Consultant shall defend its r ecommendation or schedule for imple mentation at the arbitration. The arbitrator shall require a recommendation or schedule fo r implementation unless Navajo demonstrates, by a preponderance of the evid ence, that the recommendation or schedule for102 implementation is illegal or economically or technically imprac tical, but the arbitrator may revise the recommendation or schedule for implementation to avoid such illegality or economic or technical impracticality. The arbitrator’s decision shall be final and binding. Navajo shall bear the cost of arbitration, including the NMED's a nd Independent Consultant ’s preparation for and attendance at the arbitration. iv. Within thirty days of the informal reso lution or arbitrator’s determinati on, whichever comes last, the Independent Cons ultant shall revise the baseline assessment report or evaluation report to reflect a revised or deleted recommendati on or schedule for imp lementation. Navajo shall bear the cost of the Independent Consulta nt’s revision of the ba seline assessment report or evaluation report.
H. Extensions of Time . Navajo may extend the time to conduct an action under Paragraph 33 with the written approval of NMED, which approval shall not be unreasonably withheld.
I. Stipulated Penalties for Paragraph 33

. i. Navajo shall pay a sti pulated penalty of one thousa nd dollars ($1,000.00) for each day that it fails to comply with any deadline set forth in the Paragraph 33. ii. Navajo shall pay a stipulated penalty, on the schedule specified below, for each day that it fails to implement a recommendation according to the schedule for implementation in the baseline assessment or evaluation report except: (1) as modified by Paragraph 33.G; or (2) during the pendency of dispute re solution under Paragraph 33.G. Days 0-10 $1,000.00 Days 11-30 $2,000.00 Days 31+ $5,000.00103 iii. Navajo shall pay any sti pulated penalty due under this section in a lump sum to the State of New Mexico by certified check or other guaranteed negotiable instrument within fifteen days of notification by NMED. If Navajo fails to make a timely and complete payment due under this Paragraph 33.I, Navajo shall pay interest on the out standing balance at the rate established for judgments and decrees under NM SA 1978 § 56-8-4 (1993). All payments shall be sent to NMED at the following address: General Counsel Office of General Counsel New Mexico Environment Department P.O. Box 26110 1190 St. Francis Drive Santa Fe, NM 87502-6110104 J. Maintenance and Distribution of Reports

. i. Navajo shall maintain copies of th e baseline assessment re port, progress reports, evaluation reports, and arbitrati on documents at the Artesia Refi nery and the Holly corporate office in Dallas, Texas. ii. Navajo shall allow the NMED to inspect the baseline assessment report, progress reports, evaluation reports, and arbitration documents at the Artesia Refinery and the Holly corporate office during normal business hours. iii. NMED shall not copy, transcribe, or make notes of the baseline assessment report, progress reports, evaluation reports , and arbitration documents ex cept that Navajo agrees that NMED may copy and disclose th e relevant portion of any report or document in connection with an action to enforce this Consent Decree. iv. Navajo shall provide a copy of each progress report to the Independent Consultant within five working days of completion. 34. By signing this Consent Decree, Navajo certifies that it is not required, and has no liability under any federal, state or local law or regulation or pursu ant to any agreements or orders of any court, to perform or develop any of the projects identified inParagraphs 32 and 33. Navajo further certifies that it ha s not applied for or received, and will not in the future apply for or receive: (1) credit as a Supplemental Environmenta l Project or other penalty offset in any other enforcement action for the projects set forth in Pa ragraphs 29 - 33; or (2) credit for any emissions reductions resulting from the projects set forth in Paragraphs 29 - 33 in any federal, state or local emissions trading or early reduction program.105 35. The Calendar Quarterly Re port required by Paragraph 37 of this Consent Decree for the calendar quarter in which each project identified in Paragraphs 29 - 33 is completed shall contain the following information with respect to such projects: i. A detailed description of each project as implemented; ii. A brief description of any signifi cant operating problems encountered, including any that had an impact on the environment, and the solutions for each problem; iii. Certification that each project has b een fully implemented pursuant to the provisions of this Consent Decree; and iv. A description of the environmental and public health benefits resulting from implementation of each project (including quantification of the benefits and pollutant reductions, if feasible). 36. Navajo agrees that in any public statemen ts regarding these bene ficial environmental projects, Navajo must clearly i ndicate that these proj ects are being undertaken as part of the settlement of an enforcement action for alleged violations of the Clean Air Act and the New Mexico Air Quality Control Act.
IX. REPORTING AND RECORDKEEPING 37. Beginning with the first full calendar quart er after the Date of Entry of the Consent Decree, Navajo and Montana Refining shall submit to Applicable Federal and State Agencies within thirty (30) days after the end of each calendar quarter un til termination of this Consent Decree a calendar quarterly progress report (“Calendar Quarterly Report”) for each Covered Refinery. This calendar quarterly report shall contain, for each Covered Refinery, the following: progress report on the implement ation of the requirements of Section V (Affirmative Relief/Environmental Projects); a summary of the e missions data as require d by Section V of this Consent Decree for the calendar quarter; a description of any problems anticipated with respect to meeting the requirements of Section V of this Consent Decree; a description of all106 environmentally beneficial projects and implementation activity in accordance with Paragraphs 29 - 33 of the Consent Decree; and any such add itional matters as Navajo and Montana Refining believe should be brought to the attention of the Applicable Fe deral and State Agencies. Each portion of the calendar quarterly report which relates to a partic ular Covered Refinery shall be certified by either the person responsible for e nvironmental management and compliance for that Covered Refinery, or by a pe rson responsible for overseeing implementation of this Decree across Navajo and Montana Refining, as follows: I certify under penalty of law that this info rmation was prepared under my direction or supervision in accordance with a system de signed to assure th at qualified personnel properly gather and evaluate the information submitted. Based on my directions and my inquiry of the person(s) who manage the system , or the person(s) dir ectly responsible for gathering the information, the information s ubmitted is, to the best of my knowledge and belief, true, accurate, and complete.
X. CIVIL PENALTY 38. In satisfaction of the civil claims asserted by the United States and the Plaintiff-Intervenors in the complaint filed in this matter, within thirty (30) days of the Date of Entry of the Consent Decree, Navajo and Mont ana Refining shall pay a civil penalty of $400,000 as follows: (1) $200,000 to the United States; (2) $160,000 to the State of New Mexico; and (3) $40,000 to the State of Montana. A. Payment of monies to the United States shall be made by Electronic Funds Transfer ("EFT") to the United States Depa rtment of Justice, in accordance with current EFT procedures, referencing USAO File Number 2001 V 00679, DOJ Case Number 90- 5-2-1-2228/1, and the civil action case name and case number of this acti on in the District of New Mexico. The costs of such EFT shall be the respons ibility of Navajo and Montana Re fining. Payment shall be made in accordance with instructions provided to Navajo and Montana Refining by the Financial107 Litigation Unit of the U.S. Attorney's Office for the District of New Mexico. Any funds received after 11:00 a.m. (EST) shall be credited on the ne xt business day. Navajo and Montana Refining shall provide notice of payment, refere ncing USAO File Number 2001 V 00679, DOJ Case Number 90-5-2-1-2228/1, and the civil action case name and case number to the Department of Justice and to EPA, as provi ded in Paragraph 91 (Notice). B. Payment of the civil penalty owed to the State of New Mexico under this Paragraph shall be made by certifie d or corporate check made payable to the State of New Mexico and sent to the following address: General Counsel Office of General Counsel New Mexico Environment Department P.O. Box 26110 1190 St. Francis Drive Santa Fe, NM 87502-6110 C. Payment of the civil penalty owed to th e State of Montana under this Paragraph shall be made by certified check made payable to the State of Mont ana and sent to the following address: John L. Arrigo Administrator Enforcement Division Montana Department of Environmental Quality P.O. Box 200901 Helena, MT 59620-0901 39. In satisfaction of the cl aims asserted by the NMED in the May 10, 2001, and July 27, 2001 NMED Compliance Orders, withinthirty (30) days of the Da te of Entry of the Consent Decree, Navajo shall pay a ci vil penalty of $350,000 to the State of New Mexico in accordance with the procedures set forth in Paragraph 38.B.108 40. The civil penalty set forth herein is a penalty within the meaning of Section 162(f) of the Internal Revenue Code, 26 U.S.C. § 162(f), and, therefore, neither Navajo nor Montana Refining shall treat these penalty payments as tax deductible for purposes of federal, state, or local law. 41. Upon the Date of Entry of the Consen t Decree, the Consent Decree shall constitute an enforceable judgment for purposes of post- judgment collection in accordance with Federal Rule of Civil Procedure 69, th e Federal Debt Collection Pro cedure Act, 28 U.S.C. §§ 3001-3308, and other applicable federal authority. The United States, Ne w Mexico, and Montana shall be deemed judgment creditors for purposes of collecting any unpaid amounts of the civil and stipulated penalties and interest.
XI. STIPULATED PENALTIES 42. Navajo and/or Montana Refining, as a pplicable, shall pay s tipulated penalties for each failure by Navajo and/or Montana Refining, as applicable, to comply with the terms of this Consent Decree as provided herei n. Stipulated penalties shall be calculated in the amounts specified in Paragraphs 43 through 59. At the start of each Subparagraph, the Defendant(s) that may be subject to stipulated penalties pursuant to that Subpara graph is identified. For purposes of seeking stipulated penaltie s under Paragraphs 43.B, 44.C, and 46.A, stipulated penalties shall not start to accrue until there is noncompliance with the concentration-based, rolling average emission limit identified in the Subpa ragraph for 5% or more of the applicable unit’s operating time during any calendar quarter. For those provisions where a stipulated penalty of either a fixed amount or 1.2 times the economic benefit of delaye d compliance is available, the decision of which alternative to seek shall rest exclusively within the discretion of the Applicable Federal and State Agencies. If the requirements of Paragraphs 16 or 20 ever become applicable to109 Montana Refining, then the stipulated penalties provisions of Paragraphs 47 and 51 shall take effect as to Montana Refining , except that the amount of s tipulated penalties set forth in Paragraphs 47.A-D and Paragraphs 51.B and 51.D shall be halved.
43. Paragraph 11 - Requirements for NOx Emission Reductions from FCCUs

. A. Navajo and Montana Refining . For failure to select and/or use NOx Reducing Catalyst Additives or Low NOx Combustion Pr omotors as required by Paragraph 11, and, for Navajo, Appendix D, of the Consent Decree, per day: Period of Delay Penalty per day Penalty per day for Navajo for Montana Refining
1 stthrough 30 thday after deadline $1000 $500
31 stthrough 60 thday after deadline $1500 $750 Beyond 60 thday after deadline $2000 for Navaj o, and $1000 for Montana Refining, or, for either, an amount equal to 1.2 times the economic benefit of delayed compliance, whichever is greater B. Navajo and Montana Refining . For failure to meet any emissions limit proposed by Navajo or Montana Refining, as applicable, or established by EPA (final or interim) for NOx pursuant to Paragraph 11, per day, per unit: $750 (for Navajo) and $300 (for Montana Refining) for each calendar day in a calendar quarter on wh ich the specified 3-hour rolling average exceeds the applicable limit; and $2500 (for Navajo) and $1250 (for Montana Refini ng) for each calendar day in a calendar quarter on which the specified 365-day rolling average exceeds the applicable limit. C. Navajo and Montana Refining . For failure to prepare and/or submit written deliverables required by Paragraph 11, per day: Period of Delay Penalty per day Penalty per day110 for Navajo for Montana Refining
1 stthrough 30 thday after deadline $200 $100
31 stthrough 60 thday after deadline $500 $250 Beyond 60 thday after deadline $1000 $500 D. Navajo and Montana Refining . For failure to install and/or certify a NOx CEMS, per unit, per day: Period of Delay Penalty per day Penalty per day for Navajo for Montana Refining
1 stthrough 30 thday after deadline $500 $250
31 stthrough 60 thday after deadline $1000 $500 Beyond 60 thday after deadline $2000 for Navajo, and $1000 for Montana Refining or, for either, an amount equal to 1.2 times the economic benefit of delayed compliance, whichever is greater.
44. Paragraph 12 - Requirements for SO 2 Emission Reductions from FCCUs. A. Navajo . For failure to install a wet gas scrubbe r at the Artesia Refinery as required by Paragraph 12.B of this Consent Decree, per day:111 Period of Delay Penalty per day
1 stthrough 30 thday after deadline $1250
31 stthrough 60 thday after deadline $3000 Beyond 60 thday after deadline $5000, or anamount equal to 1.2 times the economic benefit of th e delayed compliance whichever is greater B. Montana Refining . For failure to select and/or use SO 2 Reducing Catalyst Additive at the Great Falls Refinery as required by Para graph 12.C of the Consent Decree, per day: Period of Delay Penalty per day
1 stthrough 30 thday after deadline $500
31 stthrough 60 thday after deadline $750 Beyond 60 thday $1000, or an amount equal to 1.2 times the economic benefit of th e delayed compliance whichever is greater C. Navajo and Montana Refining . For each failure to meet SO 2 emission limits established for the Artesia FCCU in Para graph 12.B and/or each failure to meet SO 2 emission limits proposed by Montana Refining or estab lished by EPA (final or interim) pursuant to Paragraph 12.C, per day, per unit: $1500 (for Na vajo) and $300 (for Montana Refining) for each calendar day in a calendar quarter on which th e specified 7-day rolling average exceeds the applicable limit; $3000 (for Navajo) and $1250 (for M ontana Refining) for each calendar day in a calendar quarter on which the specified 365- day rolling average exceeds the applicable limit. D. Navajo and Montana Refining . For failure to prepare and/or submit written deliverables required by Paragraph 12, per day:112 Period of Delay Penalty per day Penalty per day for Navajo for Montana Refining
1 stthrough 30 thday after deadline $200 $100
31 stthrough 60 thday after deadline $500 $250 Beyond 60 thday after deadline $1000 $500 E. Navajo and Montana Refining . For failure to install and/or certify a SO 2 CEMS, per unit, per day: Period of Delay Penalty per day Penalty per day for Navajo for Montana Refining
1 stthrough 30 thday after deadline $500 $250
31 stthrough 60 thday after deadline $1000 $500 Beyond 60 thday after deadline $2000 for Navajo, and $1000 for Montana Refining, or, for either, an amount equal to 1.2 times the economic benefit of delayed compliance, whichever is greater.
45. Paragraph 13 - Requirements for PM Emissions Reductions from FCCUs. A. Navajo . For failure to install a wet gas scrubbe r at the Artesia Refinery as required by Paragraph 13.B of this Consent Decree, the same stipulated penalties as those in Paragraph 44.A shall apply (stipulated penalties may be sought pursuant to onl y Paragraph 44 or 45, not both). B. Montana Refining . For failure to conduct performance tests in accordance with the requirements of Para graph 13.C, per day: Period of Delay Penalty per day
1 stthrough 30 thday after deadline $200
31 stthrough 60 thday after deadline $400 Beyond 60 thday after deadline $1000113 C. Montana Refining . For failure to install a TSS or control technology equivalent in PM control effectiveness if such installa tion is required pursuant to the provisions of Paragraph 13.C, per day: Period of Delay Penalty per day
1 stthrough 30 thday after deadline $500
31 stthrough 60 thday after deadline $750 Beyond 60 thday $1000, or an amount equal to 1.2 times the economic benefit of th e delayed compliance whichever is greater 46. Paragraph 14 – Requirements for CO Emissions Reductions from FCCUs . A. Navajo and Montana Refining . For each failure to meet the CO emission limits established for the Artesia and Great Falls FCCUs in Paragraph 14.B: $500 (for Navajo) and $200 (for Montana Refining) for each calendar day in a calendar quarter on which the specified 1-hour rolling average exceeds the appli cable limit; and $2500 (for Navajo) and $1250 (for Montana Refining) for each calendar day in a calendar quart er on which the specified 365-day rolling average exceeds the applicable limit. B. Navajo and Montana Refining . For failure to install and/or certify a CO CEMS, per unit, per day:114 Period of Delay Penalty per day Penalty per day for Navajo for Montana Refining
1 stthrough 30 thday after deadline $500 $250
31 stthrough 60 thday after deadline $1000 $500 Beyond 60 thday after deadline $2000 for Navajo, and $1000 for Montana Refining, or, for either, an amount equal to 1.2 times the economic benefit of delayed compliance, whichever is greater.
47. Paragraph 16 – Requirements for NOx Em ission Reductions from Heaters and
Boilers. A. Navajo . For failure to install required NOx Control Technology by the dates specified in Paragraph 16.B and Appe ndix C, per unit, per day: Period of Delay Penalty per day
1 stthrough 30 thday after deadline $500
31 stthrough 60 thday after deadline $1200 Beyond 60 thday after deadline $2,000, or anamount equal to 1.2 times the economic benefit of delayed compliance, whichever is greater. B. Navajo . For failure to install and/or certify a CEMS or a parametric emission monitoring system on a Controlled Heater or Bo iler by the required deadline, per unit, per day: Period of Delay Penalty per day
1 stthrough 30 thday after deadline $ 450
31 stthrough 60 thday after deadline $1000 Beyond 60 thday after deadline $2000, or anamount equal to 1.2 times the economic benefit of delayed compliance, whichever is greater.115 C. Navajo . For failure to submit the written de liverables required by Paragraph 16, per day: Period of Delay Penalty per day
1 stthrough 30 thday after deadline $200
31 stthrough 60 thday after deadline $500 Beyond 60 thday $1000 D. Navajo . For each failure to meet NOx emi ssion limits proposed by Navajo pursuant to Paragraph 16.D, per day, per unit: $500 for eachcalendar day in a calendar quarter on which the specified 3-hour average exceeds the applicable limit.
48. Paragraph 17 - Requirements for SO 2 Emission Reductions from Heaters and
Boilers. A. Navajo and Montana Refining . After the date set forth in this Decree for NSPS applicability of any fuel gas combustion device, for burning any refinery fuel gas that contains hydrogen sulfide in excess of 0.1 grains per dry standard cubic foot on a 3-hour rolling average at any fuel gas combustion devi ce, per Covered Refinery, pe r day in a calendar quarter: Period of Non-Compliance Penalty per day Penalty per day for Navajo for Montana Refining
1 stthrough 5 thday $1000 $300
6 ththrough 15 thday $2000 $750 Over 15 days $3000 for Navajo, and $1000 for Montana Refining, or, for either, an amount equal to 1.2 times the economic benefit of delayed compliance, whichever is greater. B. Montana Refining . For failure to install and/or cer tify a fuel gas CEMS, per unit, per day:116 Period of Delay Penalty per day
1 stthrough 30 thday after deadline $250
31 stthrough 60 thday after deadline $500 Beyond 60 thday after deadline $1000, or anamount equal to 1.2 times the economic benefit of delayed compliance, whichever is greater. C. Navajo and Montana Refining . For burning Fuel Oil ina manner inconsistent with the requirements of Paragraph 17.C , per Covered Refinery, per day: Period of Non-Compliance Penalty per day Penalty per day for Navajo for Montana Refining
1 stthrough 30 thday $1750 $500 Beyond 31 stday $5000 $2000 49. Paragraph 18 – Requirements for NSPS Applicability of Sulfur Recovery Plant . A. Navajo . For failure to route all sulfur pit emissions in accordance with the requirements of Para graph 18.B, per day: Period of Non-Compliance Penalty per day
1 stthrough 30 thday $1000
31 stthrough 60 thday $1750 Beyond 60 thday $4000 or an amount equal to 1.2 times the amount of delayed compliance whichever is greater.
B . Navajo . For failure to comply with the NSPS Subpart J emission limits, per day in a calendar quarter: Period of Non-Compliance Penalty per day
1 stthrough 5 thday $1000117 6 ththrough 15 thday $2000 Over 15 days $3000 or an amount equal to 1.2 times the economic benefit of delayed compliance, whichever is greater. C. Navajo . For failure to develop and comply with the Preventive Maintenance and Operation Plan as specified in Paragraph 21.D, per day: Period of Delay or Non-Compliance Penalty per day
1 stthrough 30 thday after deadline $500 Beyond 31 stday after deadline $1500 Beyond 60 thday after deadline $2000 D. Navajo . For failure to submit the optimization study as specified in Paragraph 21.E, per day: Period of Delay Penalty per day
1 stthrough 30 thday after deadline $500 Beyond 31 stday after deadline $1500 Beyond 60 thday after deadline $2000 50. Paragraph 19 – Requirements for NS PS Applicability of Flaring Devices . A. Navajo . For failure to achieve NSPS compliance for the Lovington Flare (FL-1001) by December 31, 2006, and for the GOHT Flare (FL-403) by the date of inst allation, per unit, per day:118 Period of Delay Penalty per day 1st through 30th day after deadline $ 500 per day 31st through 60th day after deadline $1500 per day Beyond 60th day after deadline $2000 per day B. Navajo and Montana Refining . For failure to install and/or certify a CEMS or submit and comply with an AMP, at flares that com bust continuous or intermitte nt, routinely-generated refinery fuel gases, per unit, per day: Period of Delay Penalty per day Penalty per day for Navajo for Montana Refining
1 stthrough 30 thday after deadline $500 $250
31 stthrough 60 thday after deadline $1000 $500 Beyond 60 thday after deadline $2000 for Navajo, and $1000 for Montana Refining or, for either, an amount equal to 1.2 times the economic benefit of delayed compliance, whichever is greater. 51. Paragraph 20 – Requirements for Contro l of Acid Gas Flaring Incidents and Tail Gas Incidents . A. Navajo . For AG Flaring Incidents and/or Ta il Gas Incidents for which Navajo is liable under Paragraphs 22.C and/or 22.E:119 Tons Emitted in Flaring Incident or Tail Gas Incident Length of Time from Commencement of Flaring within the Flaring Incident to Termination of Flaring within the Flaring Incident is 3 hours or less; Length of Time of the Tail Gas Incident is 3 hours or less Length of Time from Commencement of Flaring within the Flaring Incident to Termination of Flaring within the Flaring Incident is greater than 3 hours but less than or equal to 24 hours; Length of Time of the Tail Gas Incident is greater than 3 hours but less than or equal to 24 hours Length of Time of Flaring within the Flaring Incident is greater than 24 hours; Length of Time of the Tail Gas Incident is greater than 24 hours

5 Tons or less $500 per Ton $750 per Ton $1,000 per Ton Greater than 5 Tons, but less than or equal to 15 Tons $1,200 per Ton $1,800 per Ton $2,300 per Ton, up to, but not exceeding, $27,500 in any one calendar day Greater than 15 Tons $1,800 per Ton, up to, but not exceeding, $27,500 in any one calendar day $2,300 per Ton, up to, but not exceeding, $27,500 in any one calendar day $27,500 per calendar day for each calendar day over which the Flaring Incident lasts For purposes of calculating stipulated penalties pursuant to this Para graph 51.A, only one cell within the matrix shall apply. Thus, for example, for a Flaring Incident in which the Flaring starts at 1:00 p.m. and ends at 3:00 p.m., and fo r which 14.5 tons of sulfur dioxide are emitted, the penalty would be $17,400 (14.5 x $1,200); the penalty would not be $13,900 [(5 x $500) + (9.5 x $1200)]. For purposes of determining wh ich column in the table set forth in this Paragraph applies under circumstan ces in which Flaring occurs intermittently during a Flaring Incident, the Flaring shall be deemed to commence at the time that the Flaring that triggers the initiation of a Flaring Incident commences, and shall be deemed to terminate at the time of the termination of the last episode of Flaring withinthe Flaring Incident. Thus, for example, for120 Flaring within a Flaring Incident that (i) star ts at 1:00 p.m. on Day 1 and ends at 1:30 p.m. on Day 1; (ii) recommences at 4:00 p.m. on Day 1 and ends at 4:30 p.m. on Day 1; (iii) recommences at 1:00 a.m. on Day 2 and ends at 1:30 a.m. on Day 2; and (iv) no further Flaring occurs within the Flaring Incident, the Flaring within the Flaring Incident shall be deemed to last 12.5 hours -- not 1.5 hours -- and th e column for Flaring of “greater than 3 hours but less than or equal to 24 hours” shall apply. B. Navajo . For failure to timely submit any re port required by Paragraph 20, or for submitting any report that does not conform to the requirements of Paragraphs 20: Period of Delay Penalty per day Days 1-30 $800 Days 31-60 $1,600 Over 60 days $3,000 C. Navajo . For those corrective action(s) wh ich Navajo: (i) agrees to undertake following receipt of an objection by EPA pursu ant to Paragraph 20.B. ii and 20.E; or (ii) is required to undertake following dispute resolu tion, then, from the date of EPA’s receipt of Navajo’s report under Para graphs 20.B or 20.E of this Consen t Decree until the date that either: (i) a final agreement is reached between EPA and Navajo regarding the corrective action; or (ii) a court order regarding the corrective action is entered, Navajo shall be liable for stipulated penalties as follows:121 i. Period of Delay Penalty per day Days 1-120 $50 Days 121-180 $100 Days 181 - 365 $300 Over 365 Days $3,000

or ii. 1.2 times the economic benef it resulting from Navajo’s fa ilure to implement the corrective action(s). D. Navajo . For failure to complete any corr ective action under Paragraph 20 of this Decree in accordance with the schedule for such corrective action agreed to by Navajo or imposed on Navajo pursuant to the dispute reso lution provisions of this Decree (with any such extensions thereto as to which EPA and Navajo may agree in writing): Period of Delay Penalty per day Days 1-30 $ 1,000 Days 31-60 $ 2,000 Over 60 $ 5,000 52. Paragraph 21 – Requirements for Cont rol of Hydrocarbon Flaring Incidents . A. Navajo and Montana Refining . For each failure to perform a root cause analysis or submit a written report or perform corrective actions for a Hydrocarbon Flaring Incident:122 Period of Delay or Non-Compliance Penalty per day Penalty per day per Incident per Incident for Navajo for Montana Refining 1st through 30th day $ 500 $250 31st through 60th day $1500 $750 Beyond 60th day $2000 $1000 53. Paragraph 22 - Requirements fo r Benzene Waste NESHAP Program
Enhancements . For each violation in which a freque ncy is specified in Paragraph 22, the amounts identified below shall apply on the first day of violation, shall be calculated for each incremental period of violation (or portion thereo f), and shall be doubled beginning on the fourth consecutive, continuing period of violation. For requirements where no frequency is specified, penalties will not be doubled. For Montana Refining, the amount of stipulated penalties that may be sought pursuant to this Paragraph 53 shall be one-third of the amounts set forth in this Paragraph 53. A. Navajo and Montana Refining . For failure to complete the BWN Compliance Review and Verification Reports as required by Paragraph 22.C: $7,500 per month, per refinery B. Navajo and Montana Refining . For failure to implement the actions necessary to correct non-compliance as re quired by Paragraph 22.D:123 Period of Delay Penalty per day
1 stthrough 30 thday after deadline $1250
31 stthrough 60 thday after deadline $3000 Beyond 60 thday $5000, or an amount equal to 1.2 times the economic benefit of delayed compliance, whichever is greater C. Navajo and Montana Refining (if TAB equals or exceeds 1 Mg/yr) . For failure to implement the training requi rements of Paragraph 22.G: $10,000 per quarter, per refinery D. Navajo and Montana Refining . For failure to submit or maintain any records or materials required by Paragraph 22.H of this Consent Decree: $2,000 per record or submission E. Navajo and Montana Refining (if TAB equals or exceeds 10 Mg/yr) . For failure to install controls on waste management units handling organic wastes as required by Paragraph 22.H.ii: $10,000 per month, per waste management unit F. Navajo and Montana Refining (if TAB equals or exceeds 1 Mg/yr) . For failure to conduct sampling in accordance with the sampling plans required by Paragraphs 22.I (10 Mg/yr or more) or 22.J (1 Mg/yr or more), as applicable: $5,000 per week, per stream, or $30,000 per quarter, per stream, whichever is greater, but not to exceed $150,000 per quarter per refinery G. Navajo and Montana Refining (if TAB equals or exceeds 1 Mg/yr) . For failure to submit the plan or retain the th ird-party contractor required by Paragraphs 22.I.viii (10 Mg/yr or124 more), 22.J.v (1 Mg/yr or more), or 22.J.vi (1 Mg/yr or more): $10,000 per month, per refinery H. Navajo and Montana Refining (if TAB equals or exceeds 10 Mg/yr) . For failure to comply with the miscellaneous compliance measures set forth in Paragraph 22.K.ii, as follows: For K.ii.a, monthly visual inspec tions: $500 per drain not inspected; For K.ii.b, weekly monitoring of vents: $500 per vent not monitored; I. Navajo and Montana Refining (if TAB equals or exceeds 1 Mg/yr) . For failure to identify/mark segregated stormwater drains as required in Para graph 22.K.iii: $1,000 per week per drain; J. Navajo and Montana Refining . For failure to submit the written deliverables required by Paragraph 22.M: $1,000 per week, per report K. Navajo and Montana Refining . If it is determined thr ough federal, state, or local investigation that a Covered Refi nery has failed to include all be nzene containing waste streams in its TAB calculation submitted pursuant to Para graphs 22.C., Navajo and/or Montana Refining, as applicable, shall pay the following:
Waste Stream Penalty for waste streams < 0.03 Mg/yr $250 for waste streams between 0.03 and 0.1 Mg/yr $1000 for waste streams between 0.1 and 0.5 Mg/yr $5,000 for waste streams > 0.5 Mg/yr $10,000125 54. Paragraph 23 – Requirements for Leak Detection a nd Repair Program
Enhancements. For each violation in which a freque ncy is specified in Paragraph 23, the amounts identified below shall apply on the first day of violation, shall be calculated for each incremental period of violation (or portion thereo f), and shall be doubled beginning on the fourth consecutive, continuing period of violation. For requirements where no frequency is specified, penalties will not be doubled. For Montana Refining, the amount of stipulated penalties that may be sought pursuant to this Paragraph 54 shall be one-third of the amounts set forth in this Paragraph 54. A. Navajo and Montana Refining . For failure to implement the training programs specified in Paragraph 23.B: $10,000 per month, per program, per refinery B. Navajo and Montana Refining . For failure to conduct any of the audits described in Paragraph 23.C: $5,000 per month, per audit C. Navajo and Montana Refining . For failure to implement any actions necessary to correct non-compliance as re quired in Paragraph 23.D: Period of Delay Penalty per day
1 stthrough 30 thday after deadline $1250
31 stthrough 60 thday after deadline $3000 Beyond 60 thday $5000, or an amount equal to 1.2 times the economic benefit of delayed compliance, whichever is greater D. Navajo and Montana Refining . For failure to initiate an internal leak rate definition as specified in Paragraph 23.E:126 $10,000 per month per process unit E. Navajo and Montana Refining . For failure to implement the first attempt repair program in Paragraph 23.G or for failure to implement the QA/QC procedures described in Paragraph 23.J: $10,000 per month, per refinery F. Navajo and Montana Refining . For failure to implement the more frequent monitoring program required by Paragraph 23.H.ii: $10,000 per month, per unit G. Navajo and Montana Refining . For failure to designat e an individual as accountable for LDAR performance as required in Paragr aph 23.K, or for failure to implement the maintenance tracking program in Paragraph 23.L, or for failure to write a LDAR program that meets the requirement s of Paragraph 23.A: $3,750 per week, per refinery H. Navajo and Montana Refining . For failure to use datalo ggers or maintain electronic data as required by Paragraph 23.I.: $5,000 per month, per refinery I. Navajo and Montana Refining . For failure to conduct th e calibration drift assessments or remonitor valves and pumps based on calibration drift a ssessments in Paragraph 23.M: $100 per missed event per refinery J. Navajo and Montana Refining . For failure to comply with the requirements for repair set forth at Paragra phs 23.N.ii and 23.N.iii: $5,000 per valve or pump127 K. Navajo and Montana Refining . For failure to submit the written deliverables required by Paragraph 23.O: $1,000 per week per report L. Navajo and Montana Refining . If it is determined throug h a federal, state, or local investigation that Navajo and/or Montana Refining, as applicable has failed to include all valves and pumps in its LDAR program, Navajo and/or Montana Refining shall pay $175 per component that it failed to include. 55. Paragraph 24 – Requirements to Incorporate Consent Decree Requirements into Federally-Enforceable Permits

. Navajo and Montana Refining . For each failure to submit an application as required by Paragraph 24: Period of Delay Penalty per day Penalty per day for Navajo for Montana Refining Days 1-30 $800 $400 Days 31-60 $1600 $800 Over 60 Days $3000 $1500 56. Paragraphs 29 - 31 – Requirements Re lated to Environmentally Beneficial Projects . A. Navajo . For failure to submit a plan conforming to the requirements of Paragraph 29, per day: Period of Delay Penalty per day
1 stthrough 30 thday after deadline $200
31 stthrough 60 thday after deadline $500128 Beyond 60 thday $1000 B. Navajo . For failure to install the controls required pursuant to the approved schedule of implementation re quired in Paragraph 29, per unit, per day: Period of Delay Penalty per day
1 stthrough 30 thday after deadline $1000
31 stthrough 60 thday after deadline $1500 Beyond 60 thday $2000, or an amount equal to 1.2 times the economic benefit of th e delayed compliance whichever is greater C. Navajo . For failure to complete the inst allation of the equipment, piping, instrumentation, and controls necessary to operate the 40 LT D sulfur recovery plant on hot stand-by pursuant to the re quirements of Paragraph 30: Period of Delay Penalty per day
1 stthrough 30 thday after deadline $1000
31 stthrough 60 thday after deadline $1500 Beyond 60 thday $2000, or an amount equal to 1.2 times the economic benefit of th e delayed compliance whichever is greater D. Navajo . For failure to complete the optimiza tion study required by Paragraph 30, per day:129 Period of Delay Penalty per day
1 stthrough 30 thday after deadline $500 Beyond 31 stday after deadline $1500 Beyond 60 thday after deadline $2000 E. Navajo . For failure to install an additional wet gas compressor as required by Paragraph 31, per day: Period of Delay Penalty per day
1 stthrough 30 thday after deadline $1000
31 stthrough 60 thday after deadline $1500 Beyond 60 thday $2000, or an amount equal to 1.2 times the economic benefit of th e delayed compliance whichever is greater 57. Paragraph 37 -- Requirements fo r Reporting and Recordkeeping

. Navajo and Montana Refining . For failure to submit reports as required by Section IX, per day: Period of Delay Penalty per day Penalty per day for Navajo for Montana Refining
1 stthrough 30 thday after deadline $300 $100
31 stthrough 60 thday after deadline $1100 $400 Beyond 60 thday $2000 $800 58. Paragraphs 38 and 39 -- Requirements for Payment of Civil Penalties. For Navajo’s and Montana Refining’s failure to pay the civil penalties as specified in Paragraph 38 of this Consent Decree and/or for Navajo’s failure to pay the civil penalties as specified in Paragraph 39 of this Consent D ecree, Navajo and/or Montana Re fining, as applicable, shall be130 liable for $10,000 per day plus interest on the amount overdue at the rate specified in 28 U.S.C § 1961(a). 59. Paragraph 61 – Requirement to Escrow Stipulated Penalties . For failure to escrow stipulated penalties as required by Paragraph 61 of this Consent Decree, Navajo shall be liable for $2,500 per day and Montana Refining sh all be liable for $1000 per day, and both shall be liable for interest on the amount overdue atthe rate specified in 28 U.S.C. § 1961(a). 60. Payment of Stipulated Penalties. Navajo or Montana Refining, as applicable, shall pay stipulated penalties upon written demand by the United States, the NMED, or the Montana DEQ, no later than sixty (60) days afte r Navajo or Montana Refining, as applicable, receives such demand. Demand from one agency shall be deemed a de mand from all applicable agencies, but the agencies shall consult with each other prior to making a demand. Stipulated penalties owed by Navajo Refining shall be paid 50% to the United States and 50% to the State of New Mexico. Stipulated penalties owed by Montana Refining shall be paid 50% to the United States and 50% to the State of Montana. Stipulated penalties shall be paid to the United States, the State of New Mexico, and/or the State of M ontana in the manner set forth in Section X (Civil Penalty) of this Consent Decree. A demand for the payment of stipulated penalties will identify the particular violation(s) to which the stipulated penalty relates, the stipulated penalty amount the Applicable Federal or State Agency is demanding for each violation (as can be best estimated), the calculation method underlyingthe demand, and the grounds upon which the demand is based. After consultation with each other, the United States, the State of New Mexico, and the State of Montana may, in thei r unreviewable discretion, waive payment of any portion of stipulated penalties that may accrue under this Consent Decree.131 61. Stipulated Penalties Dispute. Should Navajo and/or Montana Refining, as applicable, dispute its/their obligation to pay part or all of a stipulated penalty, it/they may avoid the imposition of a stipulated penalty for failure to pay a stipulated penalty under Paragraph 59 by placing the disputed amount demanded in a commercial escrow account pending resolution of the matter and by invoking the dispute resolu tion provisions of Section XV within the time provided in Paragraph 60 for payment of stipulated penalties. If the dispute is thereafter resolved in Navajo’s or Montana Refining’s favor, the escrowed amount plus accrued interest shall be returned to them; otherwise, the Applicable Federal and State Agency(ies) shall be entitled to the amount that was determined to be due by the C ourt, plus the interest that has accrued in the escrow account on such amount. The United States , New Mexico, and Montana reserve the right to pursue any other non-monetary remedies to which they are entitled, including but not limited to, additional injunctive relief for Navajo’s or M ontana Refining’s viola tions of this Consent
Decree. XII. INTEREST 62. Navajo and Montana Refining shall be liable for intereston the unpaid balance of the civil penalty specified in Section X, and for inte rest on any unpaid balance of stipulated penalties to be paid in accordance with Section XI. All such interest shall accrue at the rate established pursuant to 28 U.S.C. § 1961(a) -- i.e. , a rate equal to the coupon issue yield equivalent (as determined by the Secretary of Treasury) of the average accepted auction price for the last auction of 52-week U.S. Treasury bills settled prior to the Date of Lodging of the Consent Decree. Interest shall be com puted daily and compounded annually. Interest shall be calculated from the date payment is due under the Consent D ecree through the date of actual payment. For purposes of this Paragraph 62, in terest pursuant to this Para graph will cease to accrue on the132 amount of any stipulated penalty payment made into an interest bearing escrow account as contemplated by Paragraph 61 of the Consent Decree. Monies timely paid into escrow shall not be considered to be an unpa id balance under this Section.
XIII. RIGHT OF ENTRY
63. Any authorized representative of EPA or the Applicable State Agency, including independent contractors, upon pres entation of credentials, shall have a right of entry upon the premises of the facilities of the Covered Refineries, at any reasonable time for the purpose of monitoring compliance with the provisions of th is Consent Decree, including inspecting plant equipment, and inspecting and copying (except as expressly provided in Paragraph 33) all records maintained by Navajo and Montana Refi ning required by this Consent Decree. Navajo and Montana Refining shall retain such records for the period of the Consent Decree. Nothing in this Consent Decree shall limit the authority of EP A or the Applicable State Agency to conduct tests, inspections, or othe r activities under any statutor y or regulatory provision.
XIV. FORCE MAJEURE 64. If any event occurs which causes or may cause a delay or impediment to performance in complying with any provision of this Consen t Decree, Navajo and/or Montana Refining, as applicable, shall notify the Applicable Fede ral and State Agencies in writing as soon as practicable, but in any event within ten (10) business days of the da te when Navajo and/or Montana Refining, as applicable, first knew of the event or should have known of the event by the exercise of due diligence. In this notice, Navajo and/or Montana Refining, as applicable, shall specifically reference this Paragraph 64 of this Consent D ecree and describe the anticipated length of time the delay may persist, the cause or causes of the delay, and the measures taken or to be taken by Navajo and/or Montana Refining, as applicable, to prevent or minimize the delay133 and the schedule by which those measures sha ll be implemented. Na vajo and/or Montana Refining, as applicable, shall adopt all reasonable measures to avoid or minimize such delays. The notice required by this Section shall be e ffective upon the mailing of the same by certified mail, return receipt requested, to the Applicable EPA Regional Office as specified in Paragraph 91 (Notice).
65. Failure by Navajo and/or Montana Refini ng, as applicable, to substantially comply with the notice requirements of Paragraph 64 as specified above shall render this Section XIV (Force Majeure) voidable by the United States, in consultation with the Applicable State Agency, as to the specific event for which Navajo and/or Montana Refining, as applicable, has failed to comply with such notice requirement, and, if voide d, is of no effect as to the particular event involved.
66. The United States, after consultation with the Applicable State Agency, shall notify Navajo and/or Montana Refining, as applicable, in writing regarding its/their claim of a delay or impediment to performance within thirty (30) days of receipt of the force majeure notice provided under Paragraph 64.
67. If the United States, after consultation with the Applicable State Agency, agrees that the delay or impediment to performance has been or will be caused by circumstances beyond the control of Navajo and/or Montana Refining, as applicable, including any entity controlled by Navajo and/or Montana Refining, as applicable , and that Navajo and/or Montana Refining, as applicable, could not have prevented the delay by the exercise of due diligence, the Parties shall stipulate to an extension of th e required deadline(s) for all requi rement(s) affected by the delay by a period equivalent to the de lay actually caused by such circum stances. Such stipulation shall be filed as a modification to the Consent Decree pursuant to the modification procedures134 established in this Consent Decr ee. Navajo and/or Montana Refi ning, as applicable, shall not be liable for stipulated penalties for the period of any such delay.
68. If the United States, after consultation with the Applicable State Agency, does not accept Navajo’s and/or Montana Refining’s claim of a delay or impediment to performance, Navajo and/or Montana Refining, as applicable, must submit the matter to the Court for resolution to avoid payment of stipulated penalties, by filing a petition for determination with the Court. Once Navajo and/or Montana Refining, as applicable, has submitted this matter to the Court, the United States and the Applicable State Agency shall have twenty (20) business days to file their responses to the petition. If the C ourt determines that th e delay or impediment to performance has been or will be caused by circ umstances beyond the control of Navajo and/or Montana Refining, as applicable, including any entity controlled by Navajo and/or Montana Refining, as applicable, and that the delay c ould not have been prev ented by Navajo and/or Montana Refining, as applicable, by the exercise of due diligence, Navajo and/or Montana Refining, as applicable, shall be excused as to that event(s) and dela y (including stipulated penalties), for a period of time equivalent to the delay caused by such circumstances.
69. Navajo and/or Montana Refining, as app licable, shall bear the burden of proving that any delay of any requirement(s) of this Consent Decree was caused by or will be caused by circumstances beyond its/their cont rol, including any entity controlled by it/them, and that it/they could not have prevented the delay by the exercise of due diligence. Navajo and/or Montana Refining, as applicable, shall also bear the bur den of proving the dura tion and extent of any delay(s) attributable to such circumstances. An extension of one compliance date based on a particular event may, but will not necessarily, result in an extens ion of a subsequent compliance date or dates.135 70. Unanticipated or increased costs or ex penses associated with the performance of Navajo’s and/or Montana Refining’s obligati ons under this Consent Decree shall not constitute circumstances beyond its/their cont rol, or serve as the basis for an extension of time under this Section XIV.
71. Notwithstanding any other provision of this Consent Decree, this Court shall not draw any inferences nor establish any presumptions adverse to either Party as a result of Navajo and/or Montana Refining, as applicable, serving a force majeure notice or the Parties' inability to reach agreement.
72. As part of the resolution of any matter submitted to this Court under this Section XIV, the Parties by agreement, or the C ourt, by order, may in appropriate circumstances extend or modify the schedule for completion of work under the Consent Decree to account for the delay in the work that occurred as a result of any delay or impediment to performance agreed to by the United States or approved by this Court. Navajo and/or Montana Refining, as applicable, shall be liable for stipulated penalties for their failure thereafter to complete the work in accordance with the extended or modified schedule.
XV. RETENTION OF JURISDICTION/DISPUTE RESOLUTION 73. This Court shall retain jurisdiction of this matter for the purposes of implementing and enforcing the terms and conditions of the C onsent Decree and for the purpose of adjudicating all disputes (including, but not limited to, determinations under S ection V (Affirmative Relief/Environmental Projects) of the Consent Decree) among th e Parties that may arise under the provisions of the Consent Decree, until th e Consent Decree terminates in accordance with Paragraph 95 of this Cons ent Decree (Termination).136 74. Except as expressly provided in Paragr aph 33, the dispute resolution procedure set forth in this Section XV shall be available to resolve all disputes arising under this Consent Decree, including assertion of commercial unavailab ility under Paragraph 28 of this Consent Decree, provided that the Party making such app lication has made a good fa ith attempt to resolve the matter with the other Party.
75 . The dispute resolution procedure require d herein shall be invoked upon the giving of written notice by one of the Parties to this Consent Decree to another advising of a dispute pursuant to this Section XV. The notice shall desc ribe 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 acknowledge receipt of the notice and the Parties shall expeditiously schedule a meeting to discuss the dispute informally not later than fourteen (14) days from the receipt of such notice.
76. Disputes submitted to dispute resolution shall, in the first instance, be the subject of informal negotiations between the Parties. Suchperiod of informal nego tiations shall not extend beyond thirty (30) calendar days from the date of the first meetin g between representatives of the Parties, unless it is agreed that this period should be extended.
77. In the event that the Parties are unable to reach agreement during such informal negotiation period, the United States or the Appli cable State Agency, as applicable, shall provide Navajo and/or Montana Refining, as applicable, with a written summary of its position regarding the dispute. The position advanced by the Unite d States or the Applicable State Agency, as applicable, shall be considered binding unless, within forty-five (45) calendar days of Navajo’s and/or Montana Refining’s r eceipt of the written summary of the United States’ or the Applicable State Agency’s position, Navajo and/or Montana Refining, as applicable, files with the Court a petition which describes the nature of the dispute. The United States or the137 Applicable State Agency shall respond to the pe tition within forty-five (45) calendar days of filing.
78. In the event that the United States and the Applicable State Agency make differing determinations or take differing actions that affect Navajo ’s and/or Montana Refining’s rights or obligations under this Consent Decree, the fina l decisions of the United States shall take precedence.
79. Where the nature of the dispute is such that a more timely resolution of the issue is required, the time periods set forth in this S ection XV may be shorte ned upon motion of one of the Parties to the dispute.
80. The Parties do not intend that the invocati on of this Section XV by a Party cause the Court to draw any inferences nor establish any pr esumptions adverse to either Party as a result of invocation of this Section.
81. As part of the resolution of any disput e submitted to dispute resolution, the Parties, by agreement, or this Court, by order, may, in appropriate circumstan ces, extend or modify the schedule for completion of work under this Cons ent Decree to account for the delay in the work that occurred as a result of dispute resolution. Navajo and/or Montana Re fining, as applicable, shall be liable for stipulated penalties for their failure thereafter to complete the work in accordance with the extended or modified schedule.
XVI. EFFECT OF SETTLEMENT 82. The effect of settlement of this action is governed by this Paragraph 82.
A. Definitions . For purposes of Paragraph 82, the following definitions apply: i. “Applicable NSR/PSD Requi rements” shall mean:138 (a) PSD requirements at Part C of Subchapter I of the Act, 42 U.S.C. § 7475, and the regulations promulgated th ereunder at 40 C.F.R. § 52.21; (b) “Plan Requirements for Non- Attainment Areas” at Part D of Subchapter I of the Act, 42 U.S.C. §§ 7502-7503, and the regulations promulgated thereunder at 40 C.F.R. §§ 51.165 (a) and (b); Title 40, Part 51, Appendix S; and 40 C.F.R. § 52.24; and (c) Any applicable state regulations that implement, adopt, or incorporate the specific federal regulatory requi rements identified above. ii. “Applicable NSPS Subparts A and J Requirements” shall mean the standards, monitoring, testing, reporting and recordk eeping requirements, found at 40 C.F.R. §§ 60.100 through 60.109 (Subpart J), relating to a particular pollutant and a particular affected facility, and the corollary general require ments found 40 C.F.R. §§ 60.1 through 60.19 (Subpart A) that are applicable to any affected facility covered by Subpart J. iii. “Post-Lodging Compliance Dates” shall mean any dates in this Paragraph 82 after the Date of Lodging. Post-Lodging Compliance Dates include dates certain (e .g ., “December 31, 2003"), dates after Lodging represented in terms of “months after Lodging” (e .g ., “Twelve Months after the Date of Lodg ing”), and dates after Lodging represented by actions taken (e .g ., “Date of Certification”). The Post-Lodging Compliance Dates represent the dates by which work is required to be completed or an emission limit is required to be met under the applicable provisions of this Consent Decree.
B. New Source Review/Prevention of Significant Deterioration

. i. Liability Resolution regarding the Applicable NSR/PSD Requirements .

a. Specific Pollutant and Units . With respect to emissions of the following pollutants from the following units, entry of this Consent Decree shall resolve all civil liability of Navajo, Montana Refining, and Holly to the United States and the Plaintiff-Intervenors: (i) for violations139 of the Applicable NSR/PSD Requirements resulting from cons truction or modification, that occurred prior to the Date of Lodging of the Cons ent Decree, of the following units; and (ii) for any pre-Lodging construction or m odification of the following units that resulted in violations of the Applicable NSR/PSD Requirements that continued up to the following dates: Unit Pollutant Date Artesia FCCU SO 2 December 31, 2003 NOx March 31, 2005 PM and PM 10 December 31, 2003 CO December 31, 2003 Great Falls FCCU SO 2 and NOx December 31, 2004 CO Twelve Months after the Date of Lodging Heaters and boilers of Navajo’s listed in NOx Dates in Appendix C in Appendix C All heaters and boilers of Nava jo’s other NOx Date of Lodging than those listed in Appendix C All heaters and bo ilers of Navajo SO 2 Date of Lodging All heaters and boilers of Mont ana Refining NOx Date of Lodging All heaters and boilers of Montana Refining SO 2 December 31, 2006
b. NSR/PSD PM and PM 10 Violations at the Great Falls FCCU. With respect to emissions of PM and PM 10 from the Great Falls FCCU, if a nd when Montana Refining certifies the commencement of the operation of a TSS or control technology equiva lent in PM control effectiveness pursuant to require ments of Paragraph 13.C, the civ il liability of Montana Refining and Holly to the United States and the State of M ontana shall be resolved for violations of the Applicable NSR/PSD Requirement s resulting from construction or modification, that occurred prior to the Date of Lodging of the Consent D ecree, of the Great Falls FCCU, and for violations140 of the Applicable NSR/PSD Requi rements that resulted from any such pre-Lodging construction or modification and that continued up to the da te of certification of the commencement of the operation a TSS or control tec hnology equivalent in PM cont rol effectiveness pursuant to requirements of Paragraph 13.C.
ii. Reservation of Rights: Release for Vi olations Continuing After the Date of Lodging Can be Rendered Void . Notwithstanding the resolution of liability in Paragraph 82.B.i, the release of liability by the United St ates and the Plaintiff-Intervenors to Navajo, Montana Refining, and Holly for violations of the Applicable NSR/PSD Requirements during the period between the Date of Lodging of the Consent Decree and the Post-Lodging Compliance Dates shall be rendere d void if Navajo and/or Montana Refini ng, as applicable, materially fails to comply with the obligations and requirements of Para graphs 11 - 14; provided however, that the release in Paragraph 82.B.i sha ll not be rendered void if Navajo and/or Montana Refining, as applicable, remedies such material failure and pays any stipulated penalties due as a result of such material failure.141 iii. Exclusions from Release Coverage: Construction and/or Modification Not Covered by Paragraph 82.B.i . Notwithstanding the resolution of liability in Paragraph 82.B.i, nothing in this Consent Decree precludes the United States and/or the Plaintiff-Intervenors from seeking from Navajo and/or Montana Refining, as applicable, injunctive relief, penalties, or other appropriate relief for vi olations by Navajo and/or Montan a Refining, as applicable, of the Applicable NSR/PSD Requirements resulting from construction or modification that: (1) commenced prior to or commences after th e Date of Lodging of the Consent Decree for pollutants or units not covered by the Consen t Decree; or (2) commences after the Date of Lodging of the Consent Decree for units covered by this Consent Decree, except for construction and/or modification require d by this Consent Decree. iv. Evaluation of Applicable PSD/NSR Requirements Must Occur . Increases in emissions from units covered by this Consent Decree, where the increases result from the Post-Lodging construction or modification of an y units within the Covered Refineries, are beyond the scope of the release in Paragraph 82.B.i, and Navajo and/or Montana Refining must evaluate any such increases in accordance with the Applicable PSD/NSR Requirements. C. New Source Performance Standards Subparts A and J . i. Resolution of Liability

. a. Specific Pollutants and Units . With respect to emissions of the following pollutants from the following units, for violations of the Applicable NSPS Subparts A and J Requirements, entry of this Consent Decree shall resolve all civil liability of Navajo, Montana Refining, and Holly to the United States and the Plaintiff-Intervenors from the date that the claims of the United States and the Plaintiff-Intervenors accrued through the following dates: Unit Pollutant Date142 Artesia FCCU SO 2, PM, PM 10 and CO December 31, 2003 Great Falls FCCU SO 2 December 31, 2004 CO 12 months after the Date of Lodging All heaters and bo ilers of Navajo SO 2 Date of Lodging All heaters and boilers of SO 2 December 31, 2006 Montana Refining Artesia SRP SO 2 Date of Lodging Artesia Flaring Devices SO 2 Date of Lodging GOHT Flaring Device SO 2 Date of Installation Lovington Flaring Device (FL-1001)SO 2 December 31, 2006 Great Falls Flaring Device SO 2 Date of Lodging
b. NSPS PM and PM 10 violations at the Great Falls FCCU . If and when Montana Refining: (1) commences the operation of a TSS or control technology equi valent in PM control effectiveness; (2) notifies EPA and the Montana DEQ that Montana Refining accepts NSPS applicability for PM from the Great Falls FCCU; and (3) demonstrates compliance with an emission limit of 1.0 pound PM per 1000 pounds of c oke burned on a 3-hour average basis by conducting a 3-hour performance test represen tative of normal opera ting conditions for PM emissions, then the civil liability of Montana Refining and Holly to the United States and the State of Montana shall be resolved for violati ons of the NSPS Subpart s A and J provisions that relate to PM emissions from an FCCU from the date that the NSPS claims of the United States and/or the State Montana first accrued through the date of the first demonstration of compliance with an emission limit of 1.0 pound PM per 1000 pounds of coke burned on a 3-hour average143 basis by conducting a 3-hour performance test re presentative of normal operating conditions for PM emissions. ii. Reservation of Rights: Release for NS PS Violations Occurring After the Date of Lodging Can be Rendered Void . Notwithstanding the resolution of liability in Paragraph 82.C.i.a, the release of liability by the United St ates and the Plaintiff-Intervenors to Navajo, Montana Refining, and Holly for violations of any Applicable NSPS Subparts A and J Requirement that occurred between the Date of Lodging and the Post-Lodging Compliance Dates shall be rendered void if Navajo and/or Montana Refining, as applicable, materially fails to comply with the obligations and requirements of Para graphs 15 - 19; provided however, that the release in Paragraph 82.C.i.a sh all not be rendered voi d if Navajo and/or Montana Refining, as applicable, remedies such material failure and pays any stipulated penalties due as a result of such material failure. iii. Prior NSPS Applicability Determinations . Nothing in this Consent Decree shall affect the status of any FCCU, fuel gas combus tion device, or sulfur recovery plant currently subject to NSPS as previously determined by any federal, state, or local authority or any applicable permit.
D. LDAR and Benzene Waste NESHAP

. i. Resolution of Liability . Entry of this Consent Decree shall resolve all civil liability of Navajo, Montana Refining, and Holly to the United States and the Plaintiff-Intervenors for violations of the following statutory and regula tory requirements that occurred prior to the Date of Entry of the Consent Decree:

a. LDAR . For all equipment in light liquid servi ce and gas and/or vapor service, the LDAR requirements promulgated pursuant to S ections 111 and 112 of the Clean Air Act, and144 codified at 40 C.F.R. Part 60, Subparts VV and GGG; 40 C.F.R. Part 61, Subparts J and V; and 40 C.F.R. Part 63, Subparts F, H, and CC;
b. Benzene Waste NESHAP . The National Emission Standard for Benzene Waste Operations, 40 C.F.R. Part 61, Subpart FF, promul gated pursuant to Section 112(e) of the Act, 42 U.S.C. § 7412(e); and

c. Any applicable state regulations that implement, adopt, or incorporate the specific federal regulatory re quirements identified in Paragraphs 82.D.i-ii.
ii. Artesia FCCU Wet Gas Compressor . Notwithstanding the provisions of Paragraph 82.D.i.a, the civil liab ility of Navajo and Holly to th e United States and the State of New Mexico for violations of 40 C.F.R. § 60.482-3 at the Artesia FCCU Wet Gas Compressor shall be resolved through December 31, 2003; provi ded however, that the release of liability for the period between the Date of Lodging and December 31, 2003, shall be rendered void if Navajo does not meet the NSPS requirements at 40 C.F.R. § 60.482-3 for the Artesia FCCU Wet Gas Compressor on or before December 31, 2003.
iii. Reservation of Rights . Except as specifically provi ded in Paragraph 82.D.ii, and notwithstanding the resolution of liability in Paragraphs 82.D.i, nothing in this Consent Decree precludes the United States and/or Plaintiff-Intervenors from seeking from Navajo or Montana Refining or Holly: (a) injunctive and/or other e quitable relief for violations of Benzene Waste NESHAP and/or LDAR that (A) commenced prior to the Date of Entry of this Consent Decree and continued after the Date of En try; or (B) commenced after the Date of Entry of the Consent Decree; or (b) civil penalties for violations of the Benzene Waste NESHAP and/or LDAR occurring on or after the Date of Entry of the Consent Decree.145 E. NSPS Subpart QQQ . Entry of this Consent Decree shall resolve all civil liability of Navajo to the United States and the State of New Mexico for violations of 40 C.F.R. §§ 60.690-60.699 (Subpart QQQ), from the date that th e claims of the United States and New Mexico accrued through December 31, 2003; provided however, that the release of liability for the period between the Date of Lodging and December 31, 2003, shall be rendered void if Navajo does not meet the NSPS requirements at 40 C.F.R. §§ 60.692-60.693, on or before December 31,
2003.
F. Other . i. May 10, 2001 and July 27, 2001 NMED Compliance Orders . Entry of this Consent Decree shall resolve all civil liability of Navajo and Holly to the State of New Mexico and to the United States for the violations in the Ma y 10, 2001 NMED Compliance Order and the July 27, 2001 NMED Compliance Order. This civil liab ility shall be resolved with respect to SO 2 , PM, and CO, through December 31, 2003, and with resp ect to NOx, through the date that the NOx emission limitation is established by EPA pursu ant to Paragraph 11.E; provided however, that the release of liability for the period between the Date of Lodging and the Post-Lodging Compliance Dates shall be rendered void if Navajo materially fails to comply with the obligations and requireme nts of Paragraphs 11 - 14; provided however, that this release shall not be rendered void if Navajo remedies such material failure and pays any stipulated penalties due as a result of such material failure. ii. Lovington Flaring Device . Entry of this Consent Decree shall resolve all civil liability of Navajo and Holly to the State of New Mexico for violations arising from Navajo’s use of the Lovington Flaring Device (FL-1001) o ccurring during scheduled shutdown at Duke146 Energy’s Linam Ranch Natural Gas Plant from the date that New Mexico’s claims accrued through December 31, 2006; provided however, that the release of liability for the period between the Date of Lodging and December 31, 2006, shall be rendered void: (i) with respect to a particular Flaring Incident at the Loving ton Flaring Device occurring during a scheduled shutdown at Duke Energy’s Linam Ranch Natura l Gas Plant for which Navajo did not comply with the notice requirement of Paragraph 19.E; or (ii) if Navajo does not meet the emission limit for fuel gas combustion devices at 40 C.F.R. § 60.104(a)(1), on or before December 31, 2006. Notwithstanding the preceding sentence, New Mexico reserves the right to seek injunctive relief for Navajo’s operation of its Lovington Flar ing Device that results or may result in an exceedance of an ambient air quality standard.
G. Audit Policy . Nothing in this Consent Decree is intended to limit or disqualify Navajo or Montana Refining or Holly, on the grounds that information was not discovered and supplied voluntarily, from seeking to apply EPA’s Audit Policy or any state audit policy to any violations or non-compliance thatNavajo or Montana Refining or Holly discovers during the course of any investiga tion, audit, or enhanced monitoring that Navajo or Montana Refining is required to undertake pursuant to this Consent Decree.
H. Claim/Issue Preclusion. In any subsequent administrative or judicial proceeding initiated by the United States or the Plaintiff-Int ervenors for injunctive relie f, penalties, or other appropriate relief relating to Navajo or Montana Refining or Holly for violations of the PSD/NSR, NSPS, NESHAP, and/or LDAR requirements, not identified in Paragraph 82 of the Consent Decree and/or the Complaint and/or the May 10, 2001 NMED Compliance Order and/or the July 27, 2001 NMED Compliance Order:147 a. Navajo, Montana Refining, and/or Holly shall not assert, and may not maintain, any defense or claim based upon the principles of waiver, res judicata , collateral estoppel, issue preclusion, or claim-splitting. Nor may Navajo, Montana Refini ng, and/or Holly assert, or maintain, any other defenses ba sed upon any contention that the claims raised by the United States or the Plaintiff-Intervenor s in the subsequent proceeding we re or should have been brought in the instant case. Nothing in the preceding sent ences is intended to aff ect the ability of Navajo, Montana Refining and/or Holly to assert that th e claims are deemed resolved by virtue of this Paragraph 82 of the Consent Decree. b. The United States and Plaintiff-Intervenors may not assert or maintain that this Consent Decree constitutes a waiv er or determinati on of, or otherwise obviates, any claim or defense whatsoever, or that this Consent Decree constitutes acceptance by Navajo, Montana Refining, and/or Holly of any interpretation or guidance issued by EPA related to the matters addressed in this Consent Decree.
I. Imminent and Substantial Endangerment . Nothing in this Consent Decree shall be construed to limit the authority of the United States, New Mexic o, and Montana to undertake any action against any person, includingNavajo, Montana Refining and/ or Holly, to abate or correct conditions which may present an imminent and subs tantial endangerment to the public health, welfare, or the environment.148 XVII. GENERAL PROVISIONS 83. Other Laws . Except as specifically provided by this Consent Decree, nothing in this Consent Decree shall relieve Nava jo and Montana Refining of their obligations to comply with all applicable federal, state and local laws and regulations. Subject to Paragraph 82, nothing contained in this Consent Decree shall be construed to prevent or limit the rights of the United States, New Mexico, or Montana to seek or obt ain other remedies or sanctions available under other federal, state or local statutes or regulations, by virtue of Navajo’s or Montana Refining’s violation of the Consent Decree or of the statutes and regula tions upon which the Consent Decree is based, or for Navajo’s or Montana Refining’s violations of any app licable provision of law, other than the specific matters resolved herein. This shall include the right of the United States, New Mexico, or Montana to invoke the authority of the Court to order Navajo’s or Montana Refining’s compliance with this Consent Decree in a subseque nt contempt action.
84. Post-Permit Violations . Nothing in this Consent Decree shall be construed to prevent or limit the right of the United States, New Mexico, or Montana, to seek injunctive or monetary relief for violations of permits issued as a result of the procedure required under Paragraph 24 of this Decree; provi ded however, that with respect to monetary relief, the United States, New Mexico, and Montana must elect between filing a new action for such monetary relief or seeking stipulated pena lties under this Consent Decree, if stipulated penalties also are available for the alleged violation(s).
85. Failure of Compliance . The United States, New Mexico, and Montana do not, by their consent to the entry of Consent Decree, warrant or aver in any manner that Navajo’s and Montana Refining’s complete compliance with the Consent Decree will result in compliance149 with the provisions of the CAA, the New Mexico Air Quality Control Act, or the Montana Clean Air Act. Notwithstanding the review or appr oval by EPA, the NMED and/or the Montana DEQ of any plans, reports, policies or procedures formulated pursuan t to the Consent Decree, Navajo and Montana Refining shall rema in solely responsible for comp liance with the terms of the Consent Decree, all applicable permits, and all applicable federal, state and local laws and regulations, except as provided in Section XIV (Force Majeure ).
86. Service of Process. Navajo and Montana Refining he reby agree to accept service of process by mail with respect to all matters arising unde r or relating to the Consent Decree and to waive the formal service requirements set forth in Rule 4 of the Federal Ru les of Civil Procedure and any applicable local rules of this Court, including but not limited to, service of a summons. The persons identified by Navajo and Montana Re fining at Paragraph 91 (Notice) are authorized to accept service of process with respect to all matters arising under or relating to the Consent
Decree.
87. Post-Lodging/Pre-Entry Obligations. Obligations of Navajo and Montana Refining under this Consent Decree to perform duties scheduled to occur after the Date of Lodging of the Consent Decree, but prior to the Date of Entry of the Consent Decree, shall be legally enforceable on and after th e Date of Entry of the Consent Decree. Liability for stipulated penalties, if applicable , shall accrue for violation of suchobligations and payment of such stipulated penalties may be demanded by the United States, New Mexico and/or Montana as provided in this Consent Decree, provided that stipulated penalties that may have accrued between the Date of Lodging of the Consent Decr ee and the Date of Entry of the Consent Decree may not be collected unless and until this Consent Decree is entered by the Court.150 88. Costs . Each Party to this action shall b ear its own costs and attorneys' fees.
89. Public Documents . All information and documents submitted by Navajo and Montana Refining to the Applicable Federal and State Agencies pursuant to this Consent Decree shall be subject to public inspection in accordance with the respective statutes and regulations that are applicable to EPA, the NMED, and the Montana DEQ, unless subject to legal privileges or protection or identified and supported as business confidential in accordance with the respective state or federal statutes or regulations.
90. Public Notice and Comment. The Parties agree to the Consent Decree and agree that the Consent Decree may be entered upon comp liance with the public notice procedures set forth at 28 C.F.R. § 50.7, and upon notice to this Court from the United States Department of Justice requesting entry of the Consent Decree. The United States reserves the right to withdraw or withhold its consent to the Consent Decree if public comments disclose facts or considerations indicating that the Consent Decree is in appropriate, improper, or inadequate.
91. Notice . Unless otherwise provided herein, notifications to or communications between the Parties shall be deemed submitted on the date they are postmarked and sent by U.S. Mail, postage pre-paid, except fo r notices under Section XIV (Force Majeure ) and Section XV (Retention Jurisdiction/Dispute Reso lution) which shall be sent by overnight mail or by certified or registered mail, return receipt requeste d. Each report, study, notification or other communication of Navajo and Montana Refining shall be submitted as specified in this Consent Decree, with copies to EPA Headquarters and the Applicable EPA Region and the Applicable State Agency. Except as otherwise provided here in, all reports, notifica tions, certifications, or other communications required or allowed under this Consen t Decree to be submitted or151 delivered to the United States, EPA, the States, Navajo and Montana Refini ng shall be 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, DC 20044-7611 Reference Case No. 90-5-2-1-2228/1
As to EPA : U.S. Environmental Protection Agency Director, Air Enforcement Division Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Mail Code 2242-A Washington, DC 20460 EPA Region 6: Chief Air, Toxics, and Inspections Coordination Branch Environmental Protection Agency, Region 6 1445 Ross Avenue Dallas, Texas 75202-2733 EPA Region 8: Air Program Coordinator U.S. EPA Region 8, Montana Office 301 S. Park, Drawer 10096 Helena, MT 59262-0096152 The State of New Mexico: General Counsel Office of General Counsel New Mexico Environment Department P.O. Box 26110 1190 St. Francis Dr. Santa Fe, NM 87502-6110 Bureau Chief Air Quality Bureau New Mexico Environment Department 2048 Galisteo St. Santa Fe, NM 87505
The State of Montana: Enforcement Division Administrator Montana Department of Environmental Quality P.O. Box 200901 Helena, MT 59620-0901 Bureau Chief Air and Waste Management Bureau Metcalf Building P.O. Box 200901 Helena, MT 50620-0901 As to Navajo: Plant Manager Navajo Refining Co. P.O. Box 159 501 E. Main St. Artesia, NM 88211 General Counsel Holly Corp. 100 Crescent Court Suite 1600 Dallas, TX 75201-6927153 As to Montana Refining: Refinery Manager Montana Refining Co. 1900 10 thSt., N.E. Great Falls, MT 59404 General Counsel Holly Corp. 100 Crescent Court Suite 1600 Dallas, TX 75201-6927 Any party may change either the notice recipien t or the address for providing notices to it by serving all other parties with a notice setting forth such new notice recipient or address. In addition, the nature and frequency of reports required by the Cons ent Decree may be modified by mutual consent of the Parties. The consent of the United States to such modification must be in the form of a written notification from the Department of Justice, but need not be filed with the Court to be effective. 92. Approvals . All EPA approvals or comment s required under this Decree shall come from EPA, Office of Regulatory Enforcem ent, Air Enforcement Di vision, at the address listed in Paragraph 91 (Notice). All Plaintiff-Int ervener approvals shall be sent from the offices identified in Paragraph 91. 93. Paperwork Reduction Act

. The information required to be maintained or submitted pursuant to this Consent Decree is not subj ect to the Paperwork Reduction Act of 1980, 44 U.S.C. §§ 3501 etseq . 94. Modification . The Consent Decree contains the entire agreement of the Parties and shall not be modified by any prior oral or written agreement, repres entation or understanding. Prior drafts of the Consent Decree shall not be used in any action involving the interpretation or154 enforcement of the Consent Decree. Non-material modifications to this Consent Decree shall be in writing, signed by the Parties, but need not be filed with the Court. Material modifications to this Consent Decree shall be in writing, signed by the Parties, and sha ll be effective upon filing with the Court. Specific provisions in this Consent Decree that govern specific types of modifications shall be effective as set forth in the specific pr ovision governing the modification.
XVIII. TERMINATION 95. A. Provisions of this Consent Decr ee relating to Navajo shall be subject to termination upon motion by the United States or Navajo (under the c onditions identified in Paragraph 95.B). Provisions of this Consent Decree relating to Montana Refining shall be subject to termination upon motion by the Unite d States or Montana Refining (under the conditions identified in Paragra ph 95.B). In either case, Navajo or Montana Refining, as applicable, must have satisfied all of the following require ments of this Consent Decree: i. installation of control technology system s as specified in this Consent Decree; ii. achieving compliance with all provisi ons contained in this Consent Decree; iii. paying all penaltie s and other monetary obligati ons due under the terms of the Consent Decree; no penalties or other m onetary obligations due hereunder can be outstanding or owed to the Unite d States, New Mexico, or Montana; iv. for Navajo, the completion of the pr ojects set forth in Paragraphs 29 - 33; v. the receipt of permits incorpora ting the emission limits established under Section V; vi. EPA's receipt of the first calendar quarterly progress report following the conclusion of the operation by Navajo or Montana Refining, as applicable, for at155 least one year of all units in compliance with the emission limits established herein; and vii. Navajo or Montana Refining, as a pplicable, has certified compliance pursuant to Paragraph 95.A.i-vi, above, to the United States and th e Applicable State Agency in writing. B. Unless, within 120 days of receipt of the certification required by Paragraph 95.A.vii., either the United States or the Applicable State Agency objects in writing with specific reasons, the Court may upon motion by Navajo or Montan a Refining, as applicable, order that this Consent Decree as to the petitioning Defendant be terminated. If either the United States or the Applicable State Agency objects to the certif ication by Navajo or Montana Refining, as applicable, then the matter sh all be submitted to the Court for resolution under Section XV (Retention of Jurisdiction/ Dispute Resolution) of this Consent Decree. In such case, Navajo or Montana Refining, as applicable, shall bear th e burden of proving that this Consent Decree should be terminated.156 XIX. SIGNATORIES
96. Each of the undersigned representatives certif y that they are fully authorized to enter into the Consent Decree on behalf of such Parties, and to execute and to bind such Parties to the
Consent Decree. Dated and entered this _______ day of __________, 2002.

_______________________________ UNITED STATES DISTRICT JUDGEWE HEREBY CONSENT to the entry of the Consent Decree in United States, et al. v. Navajo Refining Co. and Montana Refining Co. , subject to the public notice and comment requirements of 28 C.F.R. § 50.7.
FOR PLAINTIFF THE UNITED STATES OF AMERICA:

Date: JOHN C. CRUDEN Acting Assistant Attorney General Environment and Natural Resources Division United States Department of Justice

Date: ANNETTE M. LANG Trial Attorney Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice P.O. Box 7611 Ben Franklin Station Washington, D.C. 20044-7611

DAVID C. IGLESIAS United States Attorney for the District of New Mexico

Date: By: RAYMOND HAMILTON Assistant United States Attorney United States Attorneys Office for the District of New Mexico P.O. Box 607 Albuquerque, NM 87103WE HEREBY CONSENT to the entry of the Consent Decree in United States, et al. v. Navajo Refining Co. and Montana Refining Co. , subject to the public notice and comment requirements of 28 C.F.R. § 50.7.

FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:

Date: __________________ _______________________________ SYLVIA LOWRANCE Acting Assistant Administrator for Enforcement and Compliance Assurance United States Environmental Protection Agency Washington, D.C. 20460WE HEREBY CONSENT to the entry of the Consent Decree in United States, et al. v. Navajo Refining Co. and Montana Refining Co. , subject to the public notice and comment requirements of 28 C.F.R. § 50.7.

FOR PLAINTIFF-INTERVENOR THE STATE OF NEW MEXICO

Date: PETER MAGGIORE Secretary New Mexico Environment Department P.O. Box 26110 1190 St. Francis Dr. Santa Fe, NM 87502-6110WE HEREBY CONSENT to the entry of the Consent Decree in United States, et al. v. Navajo Refining Co. and Montana Refining Co. , subject to the public notice and comment requirements of 28 C.F.R. § 50.7.

FOR PLAINTIFF-INTERVENOR STATE OF MONTANA

Date: JAN P. SENSIBAUGH Director Montana Department of Environmental Quality P.O. Box 200901 Helena, MT 59620-0901WE HEREBY CONSENT to the entry of the Consent Decree in United States, et al. v. Navajo Refining Co. and Montana Refining Co.

FOR DEFENDANT NAVAJO REFINING COMPANY, L.P.

Date: MATTHEW P. CLIFTON President Navajo Refining Company, L.P. P.O. Box 159 501 E. Main St. Artesia, NM 88211WE HEREBY CONSENT to the entry of the Consent Decree in United States, et al. v. Navajo Refining Co. and Montana Refining Co.

FOR DEFENDANT MONTANA REFINING COMPANY

Date: LELAND GRIFFIN Refinery Manager Montana Refining Company 1900 10 thSt., N.E. Great Falls, MT 59404WE HEREBY CONSENT to the entry of the Consent Decree in United States, et al. v. Navajo Refining Co. and Montana Refining Co.

FOR HOLLY CORPORATION

Date: MATTHEW P. CLIFTON President Holly Corporation 100 Crescent Court Suite 1600 Dallas, TX 75201-6927

# APPENDIX A MAY 10, 2001 NMED COMPLIANCE ORDER; JULY 27, 2001 NMED COMPLIANCE ORDER

# APPENDIX B

LIST OF FLARING DEVICESAPPENDIX B LIST OF FLARING DEVICES AT THE ARTESIA, LOVINGTON AND GREAT FALLS REFINERIES

A. ACID GAS FLARING DEVICES Navajo Refinery- Artesia, NM North Plant Flare (FL-400) FCC Unit Flare (FL-402) Alky/CCR Flare (FL-403)

B. HYDROCARBON FLARING DEVICES Navajo Refinery- Artesia, NM South Plant Flare (FL-401) North Plant Flare (FL-400) FCC Unit Flare (FL-402) Alky/CCR Flare (FL-403) GOHT Flare (FL-404) (not insta lled as of Date of Lodging)

Navajo Refinery - Lovington NM LPG Flare (FL-1001)

Montana Refining Refinery - Great Falls, MT Emergency Flare (D-720)

# APPENDIX C
LIST OF CONTROLLED HEATERS AND BOILERSAPPENDIX C CONTROLLED HEATERS AND BOILERS AND RETROFIT SCHEDULE FOR CONTROLLED HEATERS AND BOILERS

Heat Input Deadline for Deadlin e for Deadline for Deadline for Equipment Design Capa. Retrofit Retrofit Retrofit Retrofit Identification (MMBtu/hr) Dec-02 Dec-03 Dec-05 Dec-09

ARTESIA: B-7 232.0 X B-8 258.0 X H-20 93.8 X H-601 55.0 X (Per permit application dated May 2001*) H-600 88.0 X 70-H1/H2/H3 188.0 X
LOVINGTON: H-101 112.3 X B-SG-1101A 48.7 X B-SG-1101B 48.7 X

Retrofitted Capacity 232.0 258.0 206.1** 373.4 % of Heaters/Boilers >40 MMBtu/hr**: 21.7% 24.1% 19.3% 34.9%

* Will be installed with Next generation Ultra-Low NOx when built (As per permit application) ** Excluding H-601

# APPENDIX D
DETERMINING THE OPTIMIZED ADDITION RATES OF LOW NOx COMBUSTION PROMOTORS AND NOx REDUCING CATALYST ADDITIVES AT THE ARTESIA FCCUAPPENDIX D DETERMINING THE OPTIMIZED ADDITION RATES OF LOW NOx COMBUSTION PROMOTORS AND NOx REDUCING CATALYST ADDITIVES AT THE ARTESIA FCCU I. PURPOSE This Appendix defines a process by which Navajo shall determine for the Artesia FCCU the Optimized Addition Rates for Low NOx Combustion Promotors and NOx Reducing Catalyst Additives during the Optimization Period.
II. ESTABLISHING AN OPTIMIZED LOW NOx COMBUSTION PROMOTOR ADDITION RATE A. Overview . Establishing an Optimized Low NOx Combustion Promotor Addition Rate for the Artesia FCCU is a three-step process: (1) establishing a minimum addition rate for the conventional combustion promotor that Navajo currently uses such that the effectiveness of the conventional combustion prom otor is maintained (the “M inimum Conventional Combustion Promotor Addition Rate”); (2) replacing the conventional combustion promotor with Low NOx Combustion Promotor at an addition rate that is the functional equiva lent of the Minimum Conventional Combustion Promotor Addition Rate (the “Initia l Low NOx Combustion Promotor Addition Rate”); and (3) increasing the addition rate up to two times the Initial Low NOx Combustion Promotor Addition Rate if the Initial Low NOx Combustion Addition Rate is not effective (the “Optimized Low NOx Combustion Promotor Addition Rate”).
B. “Effectiveness” Determinations . The effectiveness of conventional combustion promotor shall be dete rmined by the following criteria: (1) afterburn is controlled and regenerator temperature and combustion levels are adequately maintained; and (2) temperature excursions are brought under control adequately . The effectiveness of Low NOx CombustionPromotor shall be dete rmined by those two criteria and by whether a measurable reduction in NOx emissions occurs. C. Establishing the Minimum Convention al Combustion Promotor Addition Rate. Navajo shall reduce its historical usage of c onventional combustion promotors to the point that the addition rate is the minimum necessary to retain the effectivene ss of the conventional combustion promotor that Navajo is usin g (“Minimum Conventional Combustion Promotor Addition Rate”). D. Establishing the Initial Low NO x Combustion Promotor Addition Rate . Based on information provided by the vendor, Navajo shall replace c onventional combustion promotor with Low NOx Combustion Promotor at a rate thatis the functional equi valent of the Minimum Conventional Combustion Promotor Addition Rate. This functiona lly equivalent rate shall be called the Initial Low NOx Combustion Promotor Addition Rate. E. Establishing the Optimized Low NO x Combustion Promotor Addition Rate . If the Low NOx Combustion Promotor is not effective at the Initial Low NOx Combustion Promotor Addition Rate, Navajo shall increase, by up to two times, the Initial Low NOx Combustion Promotor Addition Rate. If, at two times the Initial Low NOx Combustion Promotor Addition Rate, the Low NOx Combusti on Promotor is not e ffective, Navajo may discontinue the use of Low NOx Combustion Promotor.III. ESTABLISHING AN OPTIMIZED NOx REDUCING CATALYST ADDITIVE ADDITION RATE
A. Overview . The Optimized NOx Reducing Catalyst Additive Addition Rate shall be determined by evaluating NOx emissions reduc tions and annualized costs at three different addition rates.
B. The Increments . The three addition rates or “increments” shall be: 1.0 Weight % NOx Reducing Catalyst Additive 1.5 Weight % NOx Reducing Catalyst Additive 2.0 Weight % NOx Reducing Catalyst Additive
C. The Procedure . Navajo shall successively add NOx Reducing Catalyst Additive at each increment set forth above. Once a steady state has been achi eved at each increment, Navajo shall evaluate the performance of the NOx Reducing Catalyst Additive in terms of NOx emissions reductions and proj ected annualized costs. The final Optimized NOx Reducing Catalyst Additive Addition Rate shall occur at the lowest addition rate where either: (1) the FCCU meets 20 ppmvd NOx (corrected to 0% O2) on a 365-day rolling average, in which case Navajo shall agree to accept limits of 20 ppmvd NOx (corrected to 0% O2) on a 365-day rolling average basis at the conclusion of the Demonstration Period; (2) the total annualized cost -effectiveness of the NOx Reducing Catalyst Additive used exceeds $10,000 per ton of NOx remove d as measured from an uncontrolled baseline (as estimated based on current operating parameters as compared to operating parameters during the baseline period); or (3) the Incremental NOx Reduction Factor is less than 1.8, where the Incremental NOx Reduction Factor is defined as:
PR i - PR i-1 CAR i - CAR i-1 where:
PR i = Pollutant (NOx) reduction rate at increment i in pounds per day from the baseline
PR i-1 = Pollutant (NOx) reduction rate at the increment prior to increment i in pounds per day from the baselineCAR i = Total Catalyst Additive Rate at increment i in pounds per day from the baseline
CAR i-1 = Total Catalyst Additive Rate at the increment prior to increment i in pounds per day from the baseline If the conditions of either (1), (2), or (3) a bove are not met at any a ddition rate less than 2.0 Weight % NOx Reducing Catalyst Additive, then the Optimized Addition Rate shall be 2.0 Weight % NOx Reducing Catalyst Additive.

# APPENDIX E

NSPS SUBPART J COMPLIANCE SCHEDULE FOR FLARESAPPENDIX E NSPS SUBPART J COMPLIANCE SCHEDULE FOR FLARES Source Date of Compliance Method/Proof of Compliance NAVAJO REFINERY ARTESIA, NM North Plant Flare (FL-400) Immediat e For each routinely-generated refinery fuel gas stream that is directed to this flare on a continuous or intermittent basis, Navajo will monitor this stream with either (i) a CEMS; or (ii) will submit for EPA approval, a fully-approvable alternative monitoring plan (“AMP”) by no later than 90 days after the Date of Lodging of this Consent Decree. FCC Unit Flare (FL-402) Immediate Same as above. Alky/CCR Flare (FL-403) Immediate Same as above. South Plant Flare (FL-401) Immediate Same as above. GOHT Flare (FL-404) Date of Installation Same as above, except that if Navajo monitors by means of an AMP, Navajo shall submit the AMP by no later than 90 days after installation of this FlareNAVAJO REFINERY, LOVINGTON, NM LPG Flare (FL-1001) December 31, 2006 By no later than June 30, 2007, Navajo shall submit for EPA approval, a fully-approvable AMP.

MONTANA REFINING, GREAT FALLS, MT Emergency Flare (D-720) Immedi ate By no later than 180 days after the Date of Lodging of this Consent Decree, Montana Refining shall submit for EPA approval, a fully-approvable AMP.

# APPENDIX F

LOGIC DIAGRAM FOR PARAGRAPH 20 Was the Root Cause: - failure to follow written procedures? or - error resulting from careless operation by the personnel charged with the responsibility for the SRP, TGU, or Upstream Process Units? or - equipment failure due to a failure by Navajo to operate and maintain that equipment in a manner consistent with good engineering practices? or - shutdowns and maintenance of Compressor C-110 or the FCCU wet gas compressor? or - hydrocarbon carryover resulting in an SRP shutdown 

#  Paragraph 51 applies except in cases of Force Majeure

Paragraph 51 applies with caveats set forth in Paragraph 20.C.ii Yes Yes 

# 

Is this the first time for the Root Cause of this Flaring Incident?

Was the Root Cause sudden, infrequent, and not reasonably preventable through the exercise of good engineering practice?

Establish and update a list of agreed-upon Malfunctions 

#  No No

Implement Corrective Action pursuant to Paragraph 20.B

STOP Is the Root Cause on the list of agreed upon Malfunctions?

Yes 

#  No



#  No Did the Flaring incident: - result in emissions of SO 2 at a rate greater than 20 lbs/hr continuously for three consecutive hours and no scheduled maintenance exception? or - cause the total number of Flaring Incidents in a rolling 12 month period to exceed 5?

Yes



#  No 

#  Yes

Paragraph 51 applies with caveats set forth in Paragraph 20.C.iii.b STOP APPENDIX F
LOGIC DIAGRAM FOR PARAGRAPH 20 

### ALL FLARING INCIDENTS

# APPENDIX G REPORTS, PLANS AND CERTIFICATIONS FOR THE BENZENE WASTE NESHAP ENHANCED PROGRAM PROVISIONS OF PARAGRAPH 22APPENDIX G REPORTS, PLANS AND CERTIFICATIONS UNDER THE BENZENE WASTE NESHAP ENHANCED PROGRAM PROVISIONS OF PARAGRAPH 22 OF THE CONSENT DECREE IN UNITED STATES ET AL. V. NAVAJO REFINING CO. ET AL.

Name or Summary of the Report, Plan, or Certification CDSubPara No. Applicable Refinery(ies) “All” means all Covered Refineries Rqd. (“R”) v.Contingent (“C”) OneTime (“1") v.Quarterly (“Q”) Due Date

BWN Compliance Review and Verification Report C.i. All R 1 270 D after Lodging

Amended BWN Compliance Review and Verification Report C.ii. All C 1 90 D after completing additional sampling requested by EPA Amended TAB Report D.i All C 1 60 D after completing BWN Compliance Review and Verification Report Plan to comply w/ 6 BQ if TAB equals or is greater than 10 D.ii; J.vi. All C 1 180 D after completing BWN Compliance Review and Verification Report Compliance Certification D.iv All C 1 30 D after completing all actions necessary to come into compliance Waste/Slop/Off-Spec Oil Schematics H.i. All R 1 90 D after LodgingRevised Waste/Slop/OffSpec Oil Schematics H.i. All C 1 Mutually-agreed upon time between Navajo and/or Montana Refining and EPASchedule to complete installation of controls on waste management units handling organic benzene waste H.ii. All C 1 Mutually-agreed upon time between Navajo and/or Montana Refining and EPA, not to exceed 2 years Plan to quantify uncontrolled waste/slop/off-spec oil movements H.iv. All R 1 90 D after EPA has approved schematics

EOL Sampling Plan I.i; J.ii All C 1 2 mos. after the 22.D.iii Certification (if TAB is 10 mg/yr or greater); 90 days after submitting final BWN Compliance Review and Verification Report (if TAB is 1 Mg/yr or more but less than 10) EOL Revised Sampling Plan I.ii; J.ii. All C Asneeded If and when Navajo and/or Montana Refining become aware of factors indicating original plan no longer accurately reflects EOL benzene quantity Plan to ensure that uncontrolled benzene does not equal or exceed, as applicable, 6 or 10 Mg/yr or that it is minimized I.vii;J.ivJ.v All C 1 30 D after the end of the Q in which the projected calendar year benzene quantity is equal to or greater than 6 or 10 Mg. Proposal for Third-Party TAB Study and Compliance Review Iviii; J.vi All C 1 Last day of 4 thQ as set forth in ¶ I.viii. (if TAB is 10 mg/yr or greater); As agreed bet. EPA and Navajo and/or Montana (if TAB is 1 Mg/yr or more but less than 10) RefiningThird-Party TAB Study and Compliance Review Iviii; J.vi All C 1 30 D after receipt of the Third-Party Study and Compliance Review Plan to implement the results of the Third-Party TAB Study and Compliance Review Iviii; J.vi; All C 1 120 D after receipt of the Third-Party TAB Study and Compliance Review Report on training done in that Q G.iiii.;Miia(1) All C Q Each Qtrly Report due under the Decree

Results of annual sampling of >0.05 Mg/yr benzene streams J.i;Miia(2) All C Q In the first Qtrly Report for the first calendar Q of each year Results of 3 Months of Monthly EOL Results I.iii; J.iii;Miia(3);Miib(2) All C Q Each Qtrly Report due under the Decree

Results of Sampling of > 0.05 Streams I.iv I.v;Miib(3) All C Q Each Qtrly Report due under the Decree,

Results of Sampling of > 0.03 Streams I.viMiib(3) All C Q Each Qtrly Report due under the Decree,

# APPENDIX H REPORTS, PLANS AND CERTIFICATIONS FOR THE LDAR ENHANCED PROGRAM PROVISIONS OF PARAGRAPH 23APPENDIX H REPORTS, PLANS AND CERTIFICATIONS UNDER THE LDAR ENHANCED PROGRAM PROVISIONS OF PARAGRAPH 23 OF THE CONSENT DECREE IN UNITED STATES, ET AL. V. NAVAJO REFINING CO., ET AL.

Name or Summary of the Report, Plan, or Certification CDSubPara Nos. Applicable Refinery(ies) “All” means all Covered Refineries Rqd. (“R”) v.Contingent (“C”) OneTime (“1") v.Quarterly or w/ §63.654 Reports (“>1”) Due Date

Written Refinery-Wide LDAR Program A; O.i.a All R 1 150 D after Lodging Updated Refinery-Wide LDAR Program A All C 1 As needed Report on training for new LDAR personnel B.i;O.iic(1) All R >1 In each Section 63.654 Report Report on annual training for LDAR personnel B.ii;O.iic(1) All R >1 In each Section 63.654 Report Report on LDAR training for refinery and operations personnel who hold positions relevant to LDAR B.iiiO.iic(1) All R >1 In each Section 63.654 ReportLDAR audit reports and records of corrective actions D;O.iib. All R >1 In the Qtrly Report for the 1 stcalendar Q of each year Certification of implementation of the first attempt at repair program G;O.iia(1) All R 1 In the first Qtrly report due under the CD or the first Qtrly report in which the rqmt. becomes due Operational specifications for electronic LDAR data collection and transfer I.ii.; O.i.b All R 1 6 mos. after Lodging for Navajo; 1 yr. after Lodging for Montana Refining Certification of implementation of QA/QC procedures for review of data generated by LDAR monitoring technicians J;O.iia(2) All R 1 In the first Qtrly report due under the CD or the first Qtrly report in which the rqmt. becomes due Identification of each Refinery’s LDAR “point” person K;O.iia(3) All R 1 In the first Qtrly report due under the CD or the first Qtrly report in which the rqmt. becomes due Certification of the development of a tracking program for new valves and pumps L;O.iia(4) All R 1 In the first Qtrly report due under the CD or the first Qtrly report in which the rqmt. becomes due Certification of implementation of calibration drift assessment procedures M;O.iia(5) All R 1 In the first Qtrly report due under the CD or the first Qtrly report in which the rqmt. becomes due Certification of implementation of the “delay of repair” procedures N;O.iia(6) All R 1 In the first Qtrly report due under the CD or the first Qtrly report in which the rqmt. becomes due Quarterly monitoring reports O.iic(2) All R >1 In each Section 63.654 Report