UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYL VANIA 

UNITED STATES OF AMERICA, 

and 

the COMMONWEALTH of PENNSYLVANIA, 

DEPARTMENT OF ENVIRONMENTAL 

PROTECTION; the STATE of WEST VIRGINIA; 

the STATE of INDIANA; and the 

the COMMONWEALTH of PUERTO RICO, 

Plaintiffs 

v. 

. Essroc Cement Corp. 

Defendant. 

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Civil Action No. --
CONSENT DECREE 

Table of Contents 

I. JURISDICTION AND VENUE ................................................................................................. 2 

II. APPLICABILITy ..................................................................................................................... 3 

III. DEFINITIONS ......................................................................................................................... 5 

IV. CIVIL PENALTY .................................................................................................................. 13 

V. MITIGATION .................................................................................. , ......... 14 

VI. NOx CONTROL TECHNOLOGY, EMISSION LIMITS, AND MONITORING 

REQUIREMENTS .................................................................................................................. 16 

A. NOx Control Technology, and Emission Limits ..................................................... 16 

B. NOx Continuous Emission Monitoring Systems ..................................................... 21 

VII. S02 CONTROL TECHNOLOGY, EMISSION LIMITS, AND MONITORING 

REQUIREMENTS .................................................................................................................. 22 

A. S02 Control Technology, and Emission Limits ...................................................... 23 

B. S02 Continuous Emission Monitoring Systems ...................................................... 24 

VIII. TEMPORARY CESSATION OF KILN OPERATION ...................................................... 25 

IX. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED 

CONTROLS .......................................................................................................................... 26 

X. PERMITS ................................................................................................................................ 27 

XI. REVIEW AND APPROVAL OF SUBMITTALS ................................................................ 31 

XII. REPORTING REQUIREMENTS ........................................................................................ 32 

XIII. STIPULATED PENALTIES .............................................................................................. 36 

XIV. FORCE MAJEURE ............................................................................................................ 41 

XV. DISPUTE RESOLUTION .................................................................................................... 44 
XVI. INFORMATION COLLECTION AND RETENTION ..................................................... 50 

XVII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS ......................................... 52 

XVIII. COSTS ............................................................................................................ : ................ 54 

XIX. NOTICES ............................................................................................................................ 55 

XX. EFFECTIVE DATE ............................................................................................................. 57 

XXI. RETENTION OF JURISDICTION .. , ............................................. '" ................................. 57 

XXII. MODIFICATION .............................................................................................................. 58 

XXIII. TERMINATION .............................................................................................................. 58 

XXIV. PUBLIC PARTICIPATION ............................................................................................ 60 

XXV. SIGNATORIES/SERVICE .................................................................. : ............................ 60 

XXVI. INTEGRATION ............................................................................................................... 61 

XXVII. FINAL JUDGMENT ...................................................................................................... 61 

XXVIII. APPENDIX ................................................................................................................... 61 

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ii 
WHEREAS, Plaintiff, the United States of America, on behalf of the United States 

Environmental Protection Agency (herein "U.S. EPA"), has simultaneously lodged this Consent 

Decree and filed a Joint Complaint against Defendant, Essroc Cement Corp. ("Essroc") pursuant 

to Sections 1 13 (b) and 167 of the Clean Air Act ("Clean Air Act" or "the Act"), 42 U.S.C. §§ 

7413(b) and 7477. The complaint seeks injunctive relief and the assessment of civil penalties for 

violations of one or more of the following statutory and regulatory requirements of the Act at one 

or more of Defendant's Portland cement plants which are located in four (4) different states: the 

Prevention of Significant Deterioration ("PSD") provisions of the Act, 42 U.S.C. §§ 7470-7492 

and/or the nonattainment New Source Review ("nonattainment NSR") provisions of the Act, 42 

U.S.C. §§ 7501-7515; the federally-approved and enforceable state implementation plans 

("SIPs;'), which incorporate and/or implement the above-listed federal PSD and/or nonattainment 

NSR requirements; and Title V of the Act, 42 U.S.C. §§ 7661-766lf, and Title V's implementing 

federal and state regulations. 

WHEREAS, the Commonwealth of Pennsylvania, Department of Environmental 

Protection, the State of West Virginia, the State of Indiana, and the Commonwealth of Puerto 

Rico (collectively, "State Plaintiffs") have filed a Joint Complaint with the United States; 

WHEREAS, U.S. EPA has provided notice of the violations alleged herein to the 

Defendant and to the Commonwealth of Pennsylvania, the State of West Virginia, the State of 

Indiana, and the Commonwealth of Puerto Rico, where Defendant's Facilities identified in the 

Joint Complaint are located, pursuant to Section 113(a) of the Act, 42 U.S.C. § 7413(a), and 

Defendant stipulates that it has received actual notice of the violations alleged in the Joint 

Complaint and that it does not contest the adequacy of the notice provided. 
WHEREAS. Essroc denies the ailegations of the Joint Complaint and does not admit that 

it has any liability to the United States or the State Plaintiffs for civil penalties or injunctive relief 

arising out of the transactions and occurrences alleged in the Joint Complaint; 

WHEREAS. in settlement of the allegations referred to above, Defendant has, among 

other things, agreed to permanently retire the plant located in Bessemer, Pennsylvania; 

WHEREAS, the United States, the State Plaintiffs. and Essroc have agreed that 

settlement of this action is in the public interest and will result in air quality improvements in the 

areas where Defendant's Facilities are located, and that entry of this Consent Decree without 

further litigation is the most appropriate means of resolving this matter; and 

WHEREAS, the Parties recognize, and the Court by entering this Consent Decree finds, 

that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation 

between the Parties and that this Consent Decree is fair, reasonable, and in the public interest. 

NOW, THEREFORE, before the taking of any testimony, without the adjudication or 

admission of any issue of fact or law except as provided in Section I (Jurisdiction and Venue), 

below, and with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, AND 

DECREED as follows: 

I. JURISDICTION AND VENUE 

1. This Court has jurisdiction of the subject matter herein and over the Parties 

consenting hereto pursuant to Sections 113(b) and 167 of the Act, 42 U.S.C. §§ 7413(b), 7477, 

and 7604(a), and pursuant to 28 U.S.C. §§ 1331, 1345, 1355 and 1367(a). Venue is proper under 

Sections 113(b) and 304(c) of the Act, 42 U.S.C. §§ 7413(b) and 7604(c), and under 28 U.S.C. 

§§ 1391(b) and (c) and 1395(a). For purposes of this Consent Decree and the underlying Joint 

Complaint, the Defendant waives ail objections and defenses it may have to the Court's 

2 
jurisdiction over this action, to the Court's jurisdiction over the Defendant, and to venue in this 

District. For the purposes of the Joint Complaint filed by the Plaintiff and State Plaintiffs in this 

matter and resolved by the Consent Decree, Defendant waives any defense or objection based on 

standing. 

2. For purposes ofthis Consent Decree, Essroc agrees that the Joint Complaint states 

claims upon which relief may be granted pursuant to Sections 113 and 167 of the Act, 42 U.S.C. 

§§ 7413 and 7477. 

II. APPLICABILITY 

3. The obligations of this Consent Decree apply to and are binding upon the United 

States, the Commonwealth of Pennsylvania, the State of West Virginia, the State of Indiana, and 

. the Commonwealth of Puerto Rico and upon Essroc, and any successors, assigns, or other 

entities or persons otherwise bound by law. 

4. At least 30 Days prior to any transfer of ownership or operation of any Facility 

identified in Paragraph 7(t), Essroc shall provide a copy of this Consent Decree to the proposed 

transferee and shall simultaneously provide written notice of the· prospective transfer, together 

with a copy of the proposed written agreement, to U.S. EPA, the United States, and the Affected 

State(s) in accordance with Section XIX (Notices) of this Consent Decree. No transfer of 

ownership or operation of a Facility identified in Paragraph 7(t), whether in compliance with the 

procedures of this Paragraph or otherwise, shall relieve Essroc of its obligation to ensure that the 

terms of the Decree are implemented, unless: 

a. the transferee agrees, in writing, to undertake the obligations required by Sections VI 

(NOx Control Technology, Emission Limits, and Monitoring Requirements), VII (S02 

Control Technology, Emission Limits, and Monitoring Requirements), VIII 

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(Temporary Cessation of Kiln Operation), IX (Prohibition on Netting Credits or 

Offsets From Required Controls), Section X (Permits), Section XI (Review and 

Approval of Submittals), Section XII (Reporting Requirements), Section XIII 

(Stipulated Penalties), Section XIV (Force Majeure), Section XV (Dispute 

Resolution), and XVI (Information Collection and Retention) of this Decree 

applicable to such Facility to be substituted for the Defendant as a Party under the 

Decree with respect to such Facility and thus become bound by the terms thereof; 

b. the United States and the Affected State(s) determine that the transferee has the 

financial and technical ability to assume the Consent Decree's obligations applicable 

to such Facility; 

c. the United States and the Affected State(s) consent, in writing, to relieve Defendant 

of its Consent Decree obligations applicable to such Facility, and 

d. the transferee becomes a party to this Consent Decree with respect to the transferred 

Facility, pursuant to Section XXII (Modification). 

5. Any attempt to transfer ownership or operation of any of the Facilities identified 

in Paragraph 7(t) or any portion thereof, without complying with Paragraph 4 above constitutes a 

violation of this Decree. 

6. Essroc shall provide a copy of this Consent Decree to all officers, employees, and 

agents whose duties might reasonably include compliance with any provision of this Decree, as 

well as to any Contractor retained to provide services required to comply with the provisions of 

this Consent Decree. Essroc shall condition any agreement with such contractor upon 

performance of the services in conformity with the provisions of this Consent Decree. In any 

action to enforce this Consent Decree, Essroc shall not raise as a defense the failure by any of its 

4 
officers, directors, employees, agents, or Contractors to take any actions necessary to comply 

with the provisions of this Consent Decree. 

III. DEFINITIONS 

7. Terms used in this Consent Decree that are defined in the Act or in regulations 

promulgated by U.s. EPA pursuant to the Act shall have the meanings assigned to them in the 

Act or such regulations, unless otherwise provided in this Decree. Whenever the tenns set forth 

below are used in this Consent Decree, the foHowing definitions shall apply: 

a. "30-Day Rolling Average Emission Limit" shall mean with respect to any Kiln at a 

Facility, the maximum allowable rate of emission of a specified air pollutant from 

such Kiln and shaH be expressed as pounds of such air pollutant emitted per Ton of 

clinker produced. Compliance with the 30-Day Rolling Average Emission Limit 

shall be detennined in accordance with the following procedure, beginning on the 

date on which the 30 Day Rolling Average Emission Rate applies pursuant to . 

Appendix A or B as applicable, or the 30th Day after the applicable deadline for 

Commencement of Continuous Operation pursuant to Sections VI (NOx Control 

Technology, Emission Limits, and Monitoring Requirements) and VII (S02 Control 

Technology, Emission Limits, and Monitoring Requirements): first, sum the total 

pounds of the air pollutant in question emitted from the Kiln during an Operating Day 

and the previous twenty-nine (29) Operating Days as measured pursuant to Section 

VI B. (NOx Continuous Emission Monitoring Systems) or Section VII B (S02 

Continuous Emission Monitoring Systems), as applicable; second, sum the total Tons 

of clinker produced by the Kiln during the same Operating Day andprevious 29 

Operating Days; and third, divide the total number of pounds of the air pollutant 

5 
emitted from the Kiln during the thirty (30) Operating Days by the total Tons of 

clinker produced by such Kiln during the same 30 Operating Days. A new 

compliance detennination ofllie 30-Day Rolling Average Emission Limit shall be 

calculated for each new Operating Day in accordance with the provisions' of this 

Consent Decree. In calculating each compliance detennination of the 30-Day Rolling 

Average Emission Limit in accordance with this Paragraph 7(a), for a specified air 

pollutant at any Facility, the total pounds of such air pollutant emitted from the Kiln 

during a specified period (Operating Day or 30-Day Period) shall include all 

emissions of that pollutant from the subject Kiln that occur during the specified 

period, including emissions during each Startup, Shutdown, or Malfunction, except to 

the extent a Malfunction qualifies as a Force Majeure event under Section XV (Force 

Majeure) and Essroc has complied with the requirements of that Section. 

b. "30-Day Rolling Average Emission Rate" shall mean with respect to each Kiln the 

rate.of emission of a specified air pollutant (NOx or S02) expressed as pounds (lbs.) 

per Ton of clinker produced at such Kiln(s) and calculated in accordance with the 

following procedure: first, sum the total pounds of the pollutant in question emitted 

from the specified KUn(s) during an Operating Day and the previous twenty-nine (29) 

Operating Days, as measured pursuant to Section VLB. (NOx Continuous Emission 

Monitoring Systems) or Section VII.B. (S02 Continuous Emission Monitoring 

Systems), as applicable; second, sum the total Tons of clinker produced by that Kiln 

during the same Operating Day and previous 29 Operating Days; and third, divide the 

total number of pounds of the specified pollutant emitted from the Kiln(s) during the 

thirty (30) Operating Days referred to above by the total Tons of clinker produced at 

6 
such KUn(s) during the same 30 Operating Days. A new 30-Day Rolling Average 

Emission Rate shall be calculated for each new Operating Day. In calculating each 

30-Day Rolling Average Emission Rate, the total pounds of any pollutant emitted 

from a Kiln during a specified period (Operating Day or 30-Day Period) shall include 

all emissions of that pollutant from the subject Kiln that occur during the specified 

period, including emissions during each Malfunction; 

c. "Affected State" shall mean any State Plaintiff and its agencies and political 

subdivisions having jurisdiction over a Facility addressed in this Consent Decree; 

d. "Business Day" means any Day, except for Saturday, Sunday, and federal holidays. 

e. "CEMS" or "Continuous Emission Monitoring System" shall mean, for obligations 

involving NOx and S02 under this Consent Decree, the devices defined, installed, 

calibrated, mmntained, and operated in accordance with 40 C.F.R. § 60.13 and 40 

C.F.R. Part 60 Appendix B and Appendix F; 

f. "Commence" or "Commencement" of operation of a Control Technology shall mean 

to begin the introduction of the reagent employed by the Control Technology, as 

applicable to that technology, or where the technology is otherwise activated; 

g. "Consent Decree" or "Decree" shall mean this Decree and the Appendices attached 

hereto, but in the event of any conflict between the text of this Decree and any 

Appendix, the text of this Decree shall control; 

h. "Continuously Operate" or "Continuous Operation" shall mean that when a Control 

Technology is used at a Kiln, it shaH be operated at all times of Kiln Operation, 

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

engineering and maintenance practices for such Control Technology and the Kiln; 

7 
i. "Contractor" shall mean any person or entity hired by Essroc to perform services on 

its behalf necessary to comply with the provisions of this Consent Decree; 

j. "Control Efficiency" shall mean the extent of reduction in the emissions of a specific 

air pollutant; 

k. "Control Technology" shall mean Selective Non-Catalytic Reduction, Selective 

Catalytic Reduction, or Dry Scrubber; 

l. "Date of Lodging of the Consent Decree" or "Date of Lodging" 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 Western District of Pennsylvania; 

m. "Day" shall mean a calendar day unless expressly stated to be a Business Day. In 

computing any period of time under this Consent Decree, where the last day would 

fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of 

business of the next Business Day; 

n. "Defendant" or "Essroc" shall mean Essroc Cement Corp. 

o. "Demonstration" shall mean that period of time identified in Appendix A and 

Appendix B during which Essroc will establish a 30-Day Rolling Average Emission 

Limit that is achievable through the implementation of Control Technology at a given 

Kiln and that will be applied in accordance with Sections VI (NOx Control 

Technology, Emission Limits, and Monitoring Requirements) and VII (S02 Control 

Technology, Emission Limits, and Monitoring Requirements) of this Consent Decree; 

p. "Dry Scrubber" shall mean a pollution control system that injects or otherwise 

combines an alkaline reagent directly with the Kiln gas stream to achieve the 

reduction of sulfur dioxide emissions; 

8 
q. "Effective Date" shall have the meaning given in Section XX (Effective Date); 

f. "Emission Limit" shall mean the maximum allowable Emission Limit of a specified 

air pollutant from any Kiln and shall be expressed as pounds of such air pollutant 

emitted per Ton of clinker produced; 

s. "Emission Rate" for a specified air pollutant from any Kiln or Kilns shall mean the 

number of pounds of such air pollutant emitted per Ton of clinker measured in 

accordance with this Consent Decree; 

t. "Facilities" shall mean the following six (6) Portland cement m~ufacturing facilities 

used for the production of Portland cement. Each of these facilities may be referred 

to as a "Facility." 

(1) Bessemer Cement Plant, Second Street, PO Box 779; Bessemer, 

PA 16112 (hereinafter "Bessemer"); 

(2) Martinsburg Cement Plant, 1826 South Queen Street, PO Box 885, 

Martinsburg, WV 25402 (hereinafter "Martinsburg"); 

(3) Logansport Cement Plant, 3084 West County Road 225 South , 

Logansport, IN 46947 (hereinafter "Logansport"); 

(4) Speed Cement Plant, 301 Highway 31, Speed, IN 46947 

(hereinafter "Speed"); 

(5) Nazareth Cement Plant, 3938 Easton Nazareth Highway, Nazareth, 

P A 18064 (hereinafter "Nazareth"); 

(6) San Juan Cement Plant, Carr 2 km 267 Bo Espnoza Street CA, 

Dorado, PR 00646 (hereinafter "San Juan") 

9 
u. "Joint Complaint" shall mean the complaint filed jointly by the United States in this 

action and the intervening State Plaintiffs in this action; 

v. "Kiln" as used in this Consent Decree shall have the same meaning as defined at 40 

C.F.R. § 63.1341. The following are identified as the individual Kilns at each 

Facility: 

(1) Bessemer, Pennsylvania: Bessemer Kiln 4, Bessemer Kiln 5; 

(2) Martinsburg, West Virginia: Martinsburg Kiln 1; 

(3) Logansport, Indiana: Logansport Kiln I, Logansport Kiln 2; 

(4) Speed, Indiana: Speed Kiln 1, Speed Kiln 2; 

(5) Nazareth, Pennsylvania: Nazareth Kiln 1 

(6) San Juan, Puerto Rico: San Juan Kiln 3 

w. "Kiln Operation" shall mean any period when any raw materials are fed into the Kiln 

or any period when any combustion is occurring or fuel is being fired in the Kiln; 

x. "Malfunction" as used in this Consent Decree shaH have the same meaning as 

defllled at 40 C.F.R. § 60.2; 

y. "National Ambient Air Quality Standards" or "NAAQS" shall mean national ambient 

air quality standards that are promulgated pursuant to Section 109 of the Act, 42 

U.S.c. § 7409; 

z. "NOx" shall mean oxides of nitrogen, measured in accordance with the provisions of 

this Consent Decree; 

aa. ''Nonattainment NSR" shall mean the nonattainrnent area New Source Review (NSR) 

program within the meaning of Part D of Subchapter I of the Act, 42 U.S.C. §§ 7501· 

7515,40 C.F.R. Part 51, and any applicable State Implementation Plan. 

10 
bb. "Operating Dai' shall mean any Day on which Kiln Operation has occurred; 

cc. "Operating Month" shall mean any calendar month in which Kiln Op~ration has 

occurred; 

dd. "Optimization Period" shall mean the time requirement established in the process 

described in Section IV of Appendix A (Control Technology Demonstration 

Requirements); 

ee. "Paragraph" shall mean a portion of this Decree identified by an Arabic numeral; 

ff. "Parties" shall mean the United States, the Commonwealth of Pennsylvania, 

Department of Environmental Protection; the State of West Virginia; the State of 

Indiana; the Commonwealth of Puerto Rico; and Essroc; 

gg. "Plaintiffs" shall mean the United States and the State Plaintiffs, collectively; 

hh. "PSD" shall mean the Prevention of Significant Deterioration program within the 

meaning of Part C of Subchapter I of the Act, 42 V.S.c. §§ 7470·7492,40 C.F.R. Part 

52, and any applicable State Implementation Plan; 

11. "Retire" or "Retirement" shall mean, with respect to any Kiln: (1) to permanently 

Shut Down the Kiln; and (2) to file an application in accordance with the Affected 

State's SIP to remove permanently any legal authorization for further operation of the 

Kiln. 

jj. "Section" shall mean a portion of this Decree identified by a Roman numeral; 

kk. "Selective Catalytic Reduction System" or "SCR" shall mean a pollution control 

system that employs ammonia-based reagent injection and a catalyst to speed the 

reaction of the reagent with NOx, for the purpose of reducing NOx emissions; 

11 
11. "Selective Non-Catalytic Reduction" or "SNCR" shall mean a pollution control 

system that injects an ammonia-based reagent into the gas stream without the use of a 

catalyst for the purpose of reducing NOx emissions; 

mm. "S02" means the pollutant sulfur dioxide, measured in accordance with the 

provisions of this Consent Decree; 

nn. "Shut Down" shall mean the cessation of Kiln Operation; 

00. "Startup" shall mean the beginning of Kiln Operation; 

pp. "State Plaintiff" or "State" shall mean any of the following: the Commonwealth of 

Pennsylvania, Department of Environmental Protection; the State of West Virginia; 

the State of Indiana; or the Commonwealth of Puerto Rico; 

qq. "Temporary Cessation," "Temporary Cessation of Kiln Operation," or "Temporarily 

Cease Kiln Operation," shall mean the period when a Kiln is not in a state of Kiln 

Operation and Essroc has provided the required notice pursuant to Paragraph 30 of 

Section VIII (Temporary Cessation of Kiln Operation) of this Consent Decree; 

IT. "Title V pennit" shall mean a permit required by and issued in accordance with the 

requirements of 42 U.S.C. §§ 7661 - 7661f; 

ss. "Ton" or "Tons" shall mean short ton or short tons; 

tt. "United States" shall mean the United States of America, acting on behalf of U.S. 

EPA; and 

uu. "U.S. EPA" shaH mean the United States Environmental Protection Agency and any 

of its successor departments or agencies; 

12 
IV. CIVIL PENAL TV 

8. Within thirty (30) Days after the Effective Date of this Consent Decree, Essroc 

shall pay to the United States as a civil penalty the sum of $850,000, together with interest 

accruing from the Effective Date through the date of payment, at the rate specified in 28 U.S.C. § 

1961 as of the Effective Date. Essroc shall pay the civil penalty due under this Paragraph 8 by 

FedWire Electronic Funds Transfer ("EFT") to the U.S. Department of Justice in accordance 

with written instructions to be provided to Essroc following lodging of the Consent Decree by 

the Financial Litigation Unit of the U.S. Attorney's Office for the Western District of 

Pennsylvania. At the time of payment, Essroc shall send a copy of the EFT authorization form 

and the EFT transaction record, together with a transmittal letter, which shall state that the 

payment is for the civil penalty owed pursuant to the Consent Decree in United States, et al. v. 

Essroc Cement Corp. adv .. , and shall reference the civil action number and DOJ case number 90-

5-2-1-09608, to the United States in accordance with Section XX of this Decree (Notices); by 

email to acctsreceivable.CINWD@epa.gov; and to: 

U.S. EPA Cincinnati Finance Office 

26 Martin Luther King Drive 

Cincinnati, Ohio 45268 

9. Within thirty (30) Days after the Effective Date of this Consent Decree, Essroc 

shall pay civil penalties, together with interest accruing from the Effective Date through the date 

of payment at the rate identified in Paragraph 8 above, a total of$850,000 in the following 

amounts to the following Affected States in accordance with the payment instructions below in 

Table 1: 

13 
Table 1 

State Amount Payment Instructions 

Pennsylvania $283,333 Check made payable and mailed to: 

(Plus interest per Commonwealth of Pennsylvania - Clean Air 

Paragraph 8 if Fund 

applicable) Attn: Mark Wejkszner 

Air Quality Program Manager 

PA Department of Environ.ttlental Protection, 

2 Public Square 

Wilkes-Barre, PA 18711 

West Virginia $141,667 Check made payable and mailed to: 

(Plus interest per Air Pollution Education & Environmental 

Paragraph 8 if Fund 

applicable) West Virginia Division of Air Quality 

Attn: John A. Benedict, Director 

601 57th St. SE 

Charleston, WV 25304 

Indiana $283,333 Check made payable and mailed to: 

(Plus interest per "Environmental Management Special Fund" 

Paragraph 8 if Indiana Department of Environmental 

applicable) Management 

Cashier - Mail Code 50-1 OC 

100 North Senate Avenue 

Indianapolis, IN 46204-2251 

Puerto Rico $141,667 Check made payable and mailed to: 

(plus interest per Puerto Rico Environmental Quality Board 

Paragraph 8 if Pedro Nieves Miranda, Chairman 

applicable) Puerto Rico Environmental Quality Board 

PO BOX 11488 

SAN JUAN. PR 00910 

Att. Luis R Sierra Torres, Manager Air 

Quality Area 

10. Essroc shall not deduct any penalties paid under this Section in calculating its 

federal or state or local income tax. 

V. ENVIRONMENTAL MITIGATION 

11. Essroc shall implement the Environmental Mitigation Projects ("Project" or 

"Projects") described in Appendix C of this Consent Decree. 

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12. Essroc shaH maintain, and, within 30 days upon Plaintiffs request, provide to 

Plaintiffs all documents that substantiate work completed on the Projects in accordance with 

Section XIX (Notices). 

13. Essroc shall certify, within thirty (30) days before each engine replacement 

described in Appendix C, that Essroc is not otherwise required by law to perform the Project, 

that Essroc is unaware of any other person who is required by law to perform the Project, and 

that Essroc will not use any of the Project, or portion thereof, to satisfy any obligations that it 

may have under other applicable requirements of law. 

14. Beginning six (6) months after the Effective Date_of this Consent Decree, and 

continuing until completion of each Project, Essroc shall provide Plaintiffs with semi-annual or 

annual updates concerning the progress of the Project, in the semi-annual or annual reports 

required (as applicable) in Section XII (Reporting Requirements) oftms Consent Decree. 

15. Within sixty (60) days following the completion of the Projects required under 

this Consent Decree, Essroc shall submit to Plaintiffs a report that documents the date that the 

Project was completed, Essroc's results from implementing the Project, including the emission 

reductions or other environmental benefits achieved, and the money expended by Essroc in 

implementing the Project (including the emission reductions achieved for NOx and S02). 

16. In connection with any communication to the public or to shareholders regarding 

Essroc's actions or expenditures relating in any way to the Environmental Mitigation Projects in 

this Consent Decree, Essroc shall include prominently in the communication the information that 

the actions and expenditures were required as part of a negotiated consent decree to resolve 

allegations that Essroc violated the Clean Air Act. 

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VI. NOx CONTROL TECHNOLOGY, EMISSION LIMITS, 

AND MONITORING REQUIREMENTS 

A. NOx Control Technology and Emission Limits . 

17. Subject to Section VIII (Temporary Cessation of Kiln Operation), Defendant shall 

install the NOx Control Technology and comply with the Emission Limits for the specific Kilns 

within its system according to Table 2 below and Paragraphs 18 and 19. Defendant shall 

Continuously Operate each NOx Control Technology as applicable to each Kiln. 

Table 2 

Kiln Control Technology 30-Day Rolling Date required to 

Average Emission meet 30-Day Rolling 

Limit Average Emission 

(lb/ton clinker Limit 

produced) 

Bessemer Kiln 4 N/A Retire December 31, 2011 

Bessemer Kiln 5 N/A Retire December 31, 2011 

Martinsburg Kiln SNCR 2.15 December 31, 2012 

1 

Logansport Kiln Option A: SCR Demonstration Schedule pursuant to 

1 pursuant to Paragraph 19 and 

Paragraph 19 and Appendix B. 

Appendix B 

OptionB*: SNCR Demonstration of Schedule pursuant to 

SNCR pursuant to Paragraph 19 and 

Paragraphs 19 and Appendix A 

Appendix A) 

Emission Limit no 

higher than 7.00 

Logansport Kiln Option A: SCR Demonstration Schedule pursuant to 

2 pursuant to Paragraph 19 and 

Paragraph 19 and Appendix B 

AppendixB. 

Option B*: SNCR Demonstration of Schedule pursuant to 

SNCR pursuant to Paragraph 19 and 

Paragraphs 19 and Appendix A 

Appendix A, 

Emission Limit no 

higher than 7.00 

16 
Speed Kiln 1 SNCR 3.50 December 31, 2013 

Speed Kiln 2 SNCR 2.10 December 31, 2012 

Nazareth Kiln 1 SNCR 2.30 July 1,2012 

San Juan Kiln 3 SNCR Demonstration of December 31, 2013 

SNCR pursuant to 

Paragraph 19 and 

Appendix A, 

Emission Limit no 

higher than 2.30 

* Selection of Option B is subject to the requirements of Paragraph 19. 

San Juan Kiln 3 

18. Subject to Section VIII (Temporary Cessation of Kiln Operation), for the San 

Juan Kiln 3: 

. a. Essroc shall have installed and Commenced Continuous Operation ofSNCR 

technology by the date specified in Table 2 above; 

b. Pursuant to Appendix A, Essroc shall propose to U.S. EPA a 30-Day Rolling 

Average Emission Limit for NOx applicable to San Juan Kiln 3 that is no less 

stringent than 2.30 lb/ton of clinker and that represents the optimal performance 

and Continuous Operation ofthe SNCR technology. Within 30 Days after 

proposing a 30-Day Rolling Average Emission Limit for NOx at San Juan Kiln 3 

under Appendix A, Essroc shall achieve and thereafter maintain compliance with 

the proposed 30-Day Rolling Average Emission Limit for NOx at the Kiln. U.S. 

EPA shall review the proposed 30 Day Rolling Average Emission Limit pursuant 

to Appendix A and Section XI (Review and Approval of Submittals). 

Logansport Kiln 1 

19. Subject to Section VIII (Temporary Cessation of Kiln Operation), for Logansport 

Kiln 1 and Kiln 2: 

17 
a. Essroc shall submit, by July 31, 2013, to U.S. EPA for review and approval 

pursuant to Section XI (Review and Approval of Submittals) of this Consent 

Decree, a SCR Pilot Report. The SCR Pilot Report shall contain all the 

information identified in Appendix B of this Consent Decree. U.S. EPA shall 

expeditiously review the SCR Pilot Report submitted by Essroc pursuant to 

Appendix B and Section XI (Review and Approval of Submittals). 

b. Following approval by U.S. EPA of the SCR Pilot Report described in Paragraph 

19(a) above, and unless otherwise authorized pursuant to Paragraph 19(c) below, 

Essroc shall install and Commence Continuous Operation of SCR technology by 

September 30, 2014, and: 

1. Begin Demonstration of SCR, pursuant to Appendix B, by December 31, 

2014; 

11. Pursuant to Appendix B, by May 31, 2015, propose to U.S. EPA a 30-Day 

Rolling Average Emission Limit for NOx applicable to Logansport Kiln 1 

that represents the optimal performance and Continuous Operation of the 

SCR technology. Within 30 Days after proposing a 30-Day Rolling 

Average Emission Limit for NOx at Logansport Kiln 1 under Appendix B , 

Essroc shall achieve and thereafter maintain compliance with the proposed 

30-Day Rolling Average Emission Limit for NOx at the Kiln. U.S. EPA 

shall review the proposed 30 Day Rolling Average Emission Limit 

pursuant to the provisions of Appendix B and Section XI (Review and 

Approval of Submittals). Pursuant to Paragraph 14 of Appendix B, if 

EPA's review results in an alternative final30-day Rolling Average 

18 
Emission Limit, Essroc shall comply with the alternative final 30-day 

Rolling Average Emission Limit within 30 days of EPA's notice. 

c. If following review by U.S. EPA of the SCR Pilot Report described in Paragraph 

19(a) above, U.S. EPA concurs that SCR at Logansport Kiln 1 is unsuccessful 

pursuant to Paragraph 8 of Appendix B, Essroc shall install and Commence 

Continuous Operation ofSNCR technology by September 30,2014 at Logansport 

Kiln 1 in lieu of installation of SCR. If Essroc installs SNCR pursuant to this 

Paragraph 19(c), Essroc shall propose, by December 31, 2014, a 30~Day Rolling 

Average Emission Limit for NOx, pursuant to Appendix A, that is applicable to 

Logansport Kiln 1 that is no less stringent than 7.00 lb/ton of clinker and that 

represents the optimal performance and Continuous Operation of the SNCR 

technology. Within 30 Days after proposing a 30-Day Rolling Average Emission 

Limit for NOx at Logansport Kiln I under Appendix A, Essroc shall achieve and 

thereafter maintain compliance with the proposed 30-Day Rolling Average 

Emission Limit for NOx at the Kiln. U.S. EPA shall review the proposed 30 Day 

Rolling Average Emission Limit pursuant to Appendix A and Section XI (Review 

and Approval of Submittals). Pursuant to Paragraph 24 of Appendix A, if EPA's 

review results in an alternative final 30-day Rolling Average Emission Limit; 

Essroc shall comply with the alternative final 30-day Rolling Average Emission 

Limit within 30 days of EPA's notice. 

Logansport Kiln 2 

]9 
d. If Essroc installs SCR at Logansport Kiln 1, pursuant to Paragraph 19( c) above, 

Essroc shall install SCR and Commence Continuous Operation of SCR 

technology at Logansport Kiln 2, by September 30, 2015, and: 

i. Begin Demonstration of SCR at Logansport Kiln 2, pursuant to Appendix 

B, by December 31,2015; 

n. Pursuant to Appendix B, by May 31, 2016, propose to U.S. EPA a 30-Day 

Rolling Average Emission Limit for NOx applicable to Logansport Kiln 2 

that represents the optimal performance and Continuous Operation of the 

SCR technology. Within 30 Days after proposing a 30-Day Rolling 

Average Emission Limit for NOx at Logansport Kiln 2 under Appendix B, 

Essroc shall achieve and thereafter maintain compliance with the proposed 

30-Day Rolling Average Emission Limit for NOx at the Kiln. U.S. EPA 

shall review the proposed 30 Day Rolling Average Emission Limit 

pursuant to Appendix B and Section XI (Review and Approval of 

Submittals). Pursuant to Paragraph 14 of Appendix B, if EPA's review 

results in an alternative final 30-day Rolling Average Emission Limit, 

Essroc shall comply with the alternative final 30-day Rolling Average 

Emission Limit within 30 days of EPA's notice. 

e. If Essroc installs SNCR at Logansport Kiln 1, pursuant to Paragraph 19( c) above, 

Essroc shall install SNCR and commence Continuous Operation ofSNeR 

technology at Logansport Kiln 2, in lieu of installing SCR technology at 

Logansport Kiln 2, by September 30,2015. IfEssroc installs SNCR pursuant to 

this Paragraph 19(e), Essroc shall propose, by December 31. 2015, a 30-Day 

20 
Rolling Average Emission Limit for NOx• pursuant to Appendix A, that is 

applicable to Logansport Kiln 2 that is no less stringent than 7.00 lb/ton of clinker 

and that represents the optimal performance and Continuous Operation of the 

SNCR technology. Within 30 Days after proposing a 3D-Day Rolling Average 

Emission Limit for NOx at Logansport Kiln 2 under Appendix A, Essroc shall 

achieve and thereafter maintain compliance with the proposed 3D-Day Rolling 

Average Emission Limit for NOxat the Kiln. U.S. EPA shall review the proposed 

30 Day Rolling Average Emission Limit pursuant to Appendix A and Section XI 

(Review and Approval of Submittals). Pursuant to Paragraph 24 of Appendix A, 

if EPA's review results in an alternative final30-day Rolling Average Emission 

Limit, Essroc shall comply with the alternative final30-day Rolling Average 

Emission Limit within 30 days of EPA's notice. 

B. NOx Continuous Emission Monitoring Systems 

20. At San Juan Kiln 3 and Martinsburg Kiln 1, Essroc shaH install and make 

operational. within 30 days of the Effective Date ofthis Consent Decree, a NOx continuous 

emissions monitoring system (CEMS) to monitor NOx emissions at each stack which collects 

emissions from such Kiln. Essroc shall Continuously Operate the existing NOx CEMS at the 

Nazareth Kiln 1, Speed 1 "and 2 Kilns, and Logansport I and 2 Kilns. For any kilns that have an 

alkali bypass, Essroc shall ensure that emissions from all alkali bypass systems are monitored by 

CEMS. AU CEM's shall be operated and maintained in accordance with the requirements of 40 

C.F.R. Part 60. 

21. Except during CEMS breakdowns, repairs, calibration checks, and zero span 

adjustments, the CEMS required pursuant to Paragraph 20 above shall be operated at all times 

21 
during Kiln Operation. Each such CEMS shaH be used at each Kiln to demonstrate compliance 

with the NOx Emission Limits established in Section VI.A (NOx Control Technology and 

Emission Limits) and Appendix A (Control Technology Demonstration Requirements), as 

applicable, of this Consent Decree. 

22. Each NOx CEMS required pursuant to Paragraph 20 shall monitor and record the 

applicable NOx Emission Rate from each Kiln and shall be installed, certified, calibrated, 

maintained, and operated in accordance with the applicable requirements of 40 C.F.R. Part 60, 

and any requirements established by applicable State regulations. 

23. For purposes of this Consent Decree, all emissions of NO x shall be measured by 

CEMS. During any time when CEMS are inoperable and otherwise not measuring emissions of 

NOx from any Kiln, Essroc shall apply the missing data substitution procedures used by the 

Affected State or the missing data substitution procedures in 40 C.F.R. Part 75, Subpart D, 

whichever is deemed appropriate by the Affected State. 

VII. S02 CONTROL TECHNOLOGY, EMISSION LIMITS, AND MONITORING 

REQUIREMENTS 

A. S02 Control Technology and Emission Limits 

24. Subject to Section VIII (Temporary Cessation of Kiln Operation), Defendant shall, 

as applicable, install the S02 Control Technology and comply with the Emission Limits for the 

specific Kilns within their system according to Table 3 and Paragraph 25. Defendant shall 

Continuously Operate each S02 Control Technology as applicable to each Kiln. 

Table 3 

Kiln Control 30-Day Rolling Average Date required to meet 

Technology Emission Limit 30-Day Rolling Average 

(Ib/ton clinker produeed) Emission Limit 

Bessemer Kiln 4 NJA Retire July 1,2011 

22 
Bessemer Kiln 5 N/A Retire July 1,2011 

Martinsburg Dry Scrubber Demonstration of Dry December 31,2012 

Kiln 1 Scrubber pursuant to 

Appendix A and Paragraph 

25,'Emission Limit no 

higher than 1.50 

Logansport Kiln Dry Scrubber 3.50 December 31,2013 

1 

Logansport Kiln Dry Scrubber 4.80 December 31, 2014 

2 

Speed Kiln 1 Dry Scrubber 1.00* December 31, 2013 

Speed Kiln 2 Dry Scrubber 1.70* December 31,2013 

Nazareth Kiln 1 Dry Scrubber 1.80 December 31, 2014 

San Juan Kiln 3 Dry Scrubber 1.00 December 31,2013 . *Limit mcludes emISSions from the alkalI bypass 

25. Subject to Section VIII (Temporary Cessation of Kilns), for Martinsburg Kiln 1: 

a. Essroc shall have installed and Commenced Continuous Operation of Dry 

Scrubber technology by the date specified in Table 3 above; 

b. Pursuant to Appendix A, Essroc shall propose to U.S. EPA a30-Day Rolling 

Average Emission Limit for S02 applicable to Martinsburg Kiln 1 that is no less 

stringent than 1.50 lb/ton of clinker and that represents the optimal performance 

and Continuous Operation of the Dry Scrubber technology. Within 30 Days after 

proposing a 30-Day Rolling Average Emission Limit for S02 at Martinsburg Kiln 

1 under Appendix A, Essroc shall achieve and thereafter maintain compliance 

with the proposed 30~Day Rolling Average Emission Limit for S02 at the Kiln. 

U.S. EPA shall review the proposed 30-Day Rolling Average Emission Limit 

pursuant to Appendix A. Pursuant to Paragraph 24 of Appendix A, if EPA's 

review results in an alternative final 30-day Rolling Average Emission Limit, 

23 
Essroc shall comply with the alternative final30-day Rolling Average Emission 

Limit within 30 days of EPA's notice. 

B. S02 Continuous Emission Monitoring Systems 

26. At San Juan Kiln 3 and Martinsburg Kiln 1, Essroc shall install and make 

operational within 30 days of the Effective Date, a S02 continuous emissions monitoring system 

(CEMS) to monitor S02 emissions at each stack which collects emissions from such Kiln. 

Essroc shall Continuously Operate existing S02 CEMS at the Nazareth Kiln 1, Speed 1 and 2 

Kilns, and Logansport 1 and 2 Kilns. For any kilns that have an alkali bypass, Essroc shall 

ensure that emissions from all alkali bypass systems are monitored by CEMS. All CEMS shall 

be operated and maintained in accordance with the requirements of 40 C.F.R. Part 60. 

27. Except during CEMS breakdowns, repairs, calibration checks, and zero span 

adjustments, the CEMS required pursuant to Paragraph 26 above shall be operated at all times of 

Kiln operation, and shaH be used at each Kiln to demonstrate compliance with the S02 emission 

limits established in Section VII.A (S02 Control Technology and Emission Limits) and 

Appendix A (Control Technology Demonstration Requirements), as applicable, of this Consent 

Decree. 

28. Each S02 CEMS required pursuant to Paragraph 26 shall monitor and record the 

applicable S02 Emission Rimit from each Kiln stack in units of pounds of S02 per Ton of clinker 

produced at such Kiln and shall be installed, certified, calibrated, maintained, and operated in 

accordance with the applicable requirements of 40 C.F.R. Part 60 and any requirements 

established by applicable State regulations. 

29. For purposes of this Consent Decree, all emissions ofS02 shall be measured by 

CEMS. During any time when CEMS are inoperable and otherwise not measuring emissions of 

24 
S02 from any Kiln, Essroc shall apply the missing data substitution procedures used by the 

Affected State orthe missing data substitution procedures in 40 C.F.R. Part 75, Subpart D 

whichever is deemed appropriate by the Affected State. 

VIII. TEMPORARY CESSATION OF KILN OPERATION 

30. If Defendant has Temporarily Ceased Kiln Operation of any Kiln on the date by 

which Defendant is required to install and/or Continuously Operate any Control Technology at 

that Kiln under Section VI (NOx Control Technology, Emission Limits, and Monitoring 

Requirements), or Section VII (S02 Control Technology, Emission Limits, and Monitoring 

Requirements), Defendant shall provide written notice within ten (10) Days after such 

Temporary Cessation, or after the Effective Date of the Consent Decree, specifying the date on 

which such period of Temporary Cessation began. Defendant shall provide such written notice 

pursuant to Section XIX (Notices). 

31. If Defendant has provided the written notice as required in Paragraph 30, above, 

Defendant shall not be required to install and Continuously Operate the Control Technology at 

that Kiln by the dates required in Section VI (NOx Control Technology, Emission Limits, and 

Monitoring Requirements), and Section VII (S02 Control Technology, Emission Limits, and 

Monitoring Requirements), of this Consent Decree with respect to that Kiln. However, 

Defendant shall not recommence Kiln Operation after the date required in Section VI (NOx 

Control Technology, Emission Limits, and Monitoring Requirements), and Section VII (S02 

Control Technology, Emission Limits, and Monitoring Requirements), of this Consent Decree 

with respect to that Kiln unless the Defendant has a) installed and Commenced Continuous 

Operation of the Control Technology required by this Consent Decree for that Kiln; b) 

commenced compliance with all requirements for that Kiln contained in Section VI (NOx 

25 
Control Technology, Emission Limits, and Monitoring Requirements), and Section VII (S02 

Control Technology, Emission Limits, and Monitoring Requirements); and 3) provided notice to 

U.S. EPA within 30 Days after recommencing Kiln Operation. If Defendant recommences Kiln 

Operation without installing and' Commencing Continuous Operation of the Control Technology 

required under this Decree or does not achieve compliance with all requirements for that Kiln 

contained in Section VI (NOx Control Technology, Emission Limits, and Monitoring 

Requirements), and Section VII (S02 Control Technology Emission Limits, and Monitoring 

Requirements), Defendant shall be liable for stipulated penalties pursuant to Section XIII 

(Stipulated Penalties). 

32. In addition to complying with Paragraph 31, above, if Defendant Temporarily 

Ceases Kiln Operation for twenty-four (24) consecutive months subsequent to the Effective Date 

of this Consent Decree, prior to recommencing Kiln Operation Defendant shall first apply for 

and obtain applicable permits required under: (1) the PSD provisions of the Act, 42 U.S.C. §§ 

7470-7492 and/or the nonattainment NSR provisions of the Act, 42 U.S.c. §§ 7501-7515; or (2) 

the federally-approved and enforceable SIPs which incorporate and/or implement the federal 

PSD and/or nonattainrnent NSR requirements, as applicable. 

IX. PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED 

CONTROLS 

33. Except as otherwise provided below, emission reductions resulting from 

compliance with the requirements oftrus Consent Decree (including the Retirement of Bessemer 

Kilns 4 and 5) shall not be considered as a creditable contemporaneous emission decrease for the 

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

PSD programs. 

34. The limitations on the generation and use of netting credits or offsets set forth in 

26 
Paragraph 33 above do not apply to emission reductions achieved by Essroc that are surplus to 

those required under this Consent Decree ("surplus emission reductions"). For purposes of this 

Paragraph, surplus emission reductions are the reductions over and above those required under 

this Consent Decree that result from Essroc's compliance with federally enforceable emissions 

limits that are more stringent than limits imposed under this Consent Decree or from Essroc' s 

compliance with emissions limits otherwise required under applicable provisions of the Clean 

Air Act or with an applicable SIP that contains more stringent limits than those imposed under 

this Consent Decree. 

35. Nothing in this Consent Decree is intended to preclude the emission reductions 

generated under this Consent Decree from being considered by u.s. EPA or a State as creditable 

contemporaneous emission decreases for the purpose of attainment demonstrations submitted 

pursuant to § 110 ofthe Act, 42 U.S.C. § 7410, or in determining impacts on NAAQS, PSD 

increments, or air quaIity·related values, including visibility in a Class I area. 

x. PERMITS 

36. Where any compliance obligation under this Consent Decree requires Essroc to 

obtain a federal, State, or local permit or approval Essroc shall submit a timely and complete 

application for such permit or approval and take all other actions necessary to obtain all such 

permits or approvals, allowing for all legally required processing and review including requests 

for additional information by the permitting or approval authority. Essroc may seek relief under 

the provisions of Section XIV of this Consent Decree (Force Majeure) for any delay in the 

performance of any obligation under this Consent Decree resulting from a failure to obtain, or a 

delay in obtaining, any permit or approval required to fulfill such obligation, if Essroc has 

submitted timely and complete applications in a manner that provides the permitting authority 

27 
sufficient and reasonable time to process the permit application, responded to requests for 

additional information by the permitting authority and taken all other actions necessary to obtain 

such permits or approvals in a timely fashion, and prosecuted appeals of any allegedly unlawful 

terms and conditions imposed by the permitting authority in a timely fashion. 

37. In addition to having first obtained any required preconstruction permits or other 

approvals pursuant to Paragraph 36 above. Essroc, within 12 months after the Commencement of 

operation of each Control Technology required to be installed, upgraded, or operated on a Kiln 

under this Consent Decree, shall apply to the Affected State to include the requirements and 

limitations enumerated in this Consent Decree in a construction permit or other permit or 

approval (other than a Title V permit) which is federally enforceable, issued under the SIP of the 

Affected State, and issued under authority independent of the Affected State's authority to issue 

Title V permits. The permit or approval shall require compliance with any applicable 30-Day 

Rolling Average Emission Limit, and any monitoring requirements, including those in Sections 

VLB and VII.B. of this Decree. Following submission of the application for the permit or 

approval, Essroc shall cooperate with the appropriate permitting authority by promptly 

submitting all information that such permitting authority seeks following its receipt of the 

application for the permit. 

38. Upon issuance of a permit by the Affected State, or in conjunction with the 

issuance of such permit, Essroc shall file any applications necessary to incorporate the 

requirements of the permit into the Title V operating permit for the relevant Facility. Essroc 

shall not challenge the inclusion in any such permit of the Emission Limits expressly prescribed 

in this Consent Decree (including, where applicable, final30-Day Rolling Average Emission 

Limits determined in accordance with Appendix A or B), but nothing in this Consent Decree is 

28 
intended nor shall it be construed to require the establishment of Emission Limits other than 

those Emission Limits expressly prescribed in this Consent Decree nor to preclude Essroc from 

challenging any more stringent Emission Limits .should they be proposed for reasons 

independent of this Consent Decree. 

39. As soon as practicable, but in no event later than one hundred twenty (120) Days 

after the establishment of any Emission Limits pursuant to Appendix A or B, as applicable, in the 

Consent Decree, Essroc shall submit applications to the appropriate permitting authority to 

incorporate all applicable Emission Limits, and any requirements and limitations, including those 

in Sections VI (NO" Control Technology, Emission Limits, and Monitoring Requirements) and 

VII (S02 Control Technology, Emission Limits, and Monitoring Requirements) of this Decree, 

into federally enforceable construction or other permits (other than Title V permits) which are 

federally enforceable. Following submission of the permit application by Essroc to the Affected 

State, Essroc shall cooperate with the appropriate permitting authority by promptly submitting all 

information that such permitting authority seeks following its receipt of the permit application. 

Upon issuance of such permit or in conjunction with such permitting by the Affected State, 

Essroc shall file any applications necessary to incorporate the requirements of that permit into 

the Title V operating permit of the appropriate Facility. Essroc shall not challenge the inclusion 

in any such permit of the Emission Limits expressly prescribed in this Consent Decree (including, 

where applicable, final 30-Day Rolling Average Emission Limits determined in accordance with 

Appendix A or B), but nothing in this Consent Decree is intended nor shall it be construed to 

require the establishment of Emission Limits other than those Emission Limits expressly 

prescribed in this Consent Decree nor to preclude Essroc from challenging any more stringent 

Emission Limits should they be proposed for reasons independent of this Consent Decree. 

29 
40. For each Kiln, Essroc shall provide U.S. EPA with a copy of each application for 

a permit to address or comply with any provision ofthjs Consent Decree, as well as a copy of 

any permit proposed as a result of such application, to allow for timely participation in any 

public comment opportunity. 

41. In lieu of incorporating the terms of the Consent Decree directly into a permit 

issued under a SIP pursuant to Paragraphs 36 through 39, Essroc may request an Affected State 

to submit the portions of the Consent Decree applicable to the Facilities in that Aftected State to 

the U.S. EPA for approval under the State's SIP in accordance with 42 U.S.c. § 7410(k). Upon 

approval by the U.S. EPA, those portions of this Consent Decree will be incorporated into the 

Affected State's SIP, and subsequently incorporated into Title V permits for each Facility 

consistent with applicable requirements in 40 c.P.R. Part 70 or State-specific rules adopted and 

approved consistent with Part 70. Essroc agrees not to contest the submittal of any such 

proposed SIP revision that incorporates the terms of this Consent Decree to U.S. EPA, or U.S. 

EPA's approval of such submittal, or the incorporation of the applicable portions of this Consent 

Decree through these SIP requirements into the Title V permits. 

42. When permits or SIP amendments are required as described in Paragraphs 36-39 

and 41, Essroc shall complete and submit applications for such permits or SIP amendments to the 

appropriate authorities to allow sufficient time for all legally required processing and review of 

the permit application or application for a SIP amendment, including requests for additional 

information by the permitting authorities. Any failure by Essroc to submit a timely and complete 

permit application or application for a SIP amendment for any Kiln shall bar any use by Essroc 

of Section XIV (Force Majeure) of this Consent Decree. where a Porce Majeure claim is based 

on permitting delays or delays associated with issuance of a the SIP amendment. 

30 
43. Notwithstanding the reference to Title V permits in this Consent Decree, the 

enforcement of such permits shall be in accordance with their own terms and the Act. The Title 

V permits shall not be enforceable under this Consent Decree, although any term or limit 

established by or under this Consent Decree shall be enforceable under this Consent Decree 

regardless of whether such term has or will become part of a Title V permit, subject to the terms 

of Section XXIII (Termination) of this Consent Decree. 

XI. REVIEW AND APPROVAL OF SUBMITTALS 

44. After review of any document that is subject to approval pursuant to this Consent 

Decree, U.S. EPA, after consultation with the Affected State, shall in writing: (a) approve the 

submission; (b) approve the submission upon specified conditions; (c) approve part of the 

submission and disapprove the remainder; or (d) disapprove the submission. 

45. If the submission is approved pursuant to Paragraph 44 above, Essroc shall take 

all actions required by the plan, report, or other document, in accordance with the schedules and 

requirements of the plan, report, or other document, as approved. If the submission is 

conditionally approved or approved only in part, pursuant to Paragraph 44(b) above, Essroc shall, 

upon written direction of U.S. EPA, after consultation with the Affected State, take all actions 

required by the approved portion of the plan, report, or other item that U. S. EPA, after 

cons,ultation with the Affected State, determines are technically severable from any disapproved 

portions, subject to Essroc's right to dispute only the specified conditions or the disapproved 

portions, under Section XV of this Decree (Dispute Resolution). Conditional approvals or 

approvals in part, with respect to emission limit proposals under Appendix A) may include 

disapproval of emission limit proposals and approval of alternative emission limits as specified 

in Paragraph 24 of Appendix A and of Paragraph 14 of Appendix B. 

31 
46. Ifthe submission is disapproved in whole or in part pursuant to Paragraph 44, 

Essroc shall, within 45 Days or such other time as the Parties agree to in writing, correct all 

deficiencies and resubmit the plan, report, or other item, or disapproved portion thereof, for 

approval, in accordance with the preceding Paragraphs. If the resubmission is approved in whole 

or in part, Essroc shall proceed in accordance with the preceding Paragraph. 

47. Any stipulated penalties applicable to an original submission that is disapproved 

in whole or in part pursuant to Paragraph 44, as provided in Section XIII (Stipulated Penalties) of 

this Decree, shall continue to accrue during the period specified in Paragraph 46, but any 

stipulated penalties that accrue following the receipt of the submission shall not be payable 

unless the resubmission is untimely or is disapproved in whole or in part; provided that, if the 

original submission was so deficient as to constitute a material breach of Essroc's obligations 

under this Decree, the stipulated penalties applicable to the original submission shall be due and 

payable notwithstanding any subsequent resubmission. 

48. If a resubmitted plan, report, or 'other item, or portion thereof, is disapproved in 

whole or in part, U.S. EPA and the Affected State may again require Essroc to correct any 

deficiencies in accordance with Paragraph 46, or may themselves correct any deficiencies and 

seek stipulated penalties, subject to Essroc's right to invoke Dispute Resolution under Section 

XV of this Consent Decree. 

XII. REPORTING REQUIREMENTS 

49. Essroc shall submit the following reports as described in this Paragraph 49. 

Within 30 Days after the end of each half calendar year (t. e., by January 30th, July 30th) after the 

Effective Date, for three full years, until tennination of this Decree pursuant to Section XXIII 

(Termination), Essroc shall submit a semi-annual report to U.S. EPA and the Affected States for 

32 
the immediately preceding half calendar year period that shall contain the information described 

in this Paragraph 49(a)-G). Thereafter, and until termination of this Decree pursuant to Section 

XXIII (Termination), Essroc shall submit, within 30 days after the end of each calendar year, an 

annual report to u.s. EPA and the Affected States for t~e immediately preceding calendar year 

period that shall contain the information described in this Paragraph 49(a)-G). 

a. Identify any and all dates on which Essroc has installed, or describe the progress 

of installation of, each Control Technology required for each Kiln under Section 

VI (NOx Control Technology, Emission Limits, and Monitoring Requirements) 

and Section VII (S02 Control Technology, Emission Limits, and Monitoring 

Requirements), and describe any problems encountered or anticipated during such 

installation, together with implemented or proposed solutions; 

b. Identify any and all dates on which Essroc has completed installation of, or 

describe the progress of installation of, each CEMS required under Section VI.B 

(NOx Continuous Emission Monitoring Systems) and Section VILB (S02 

Continuous Emission Monitoring Systems), and describe any problems 

encountered or anticipated during such installation, together with implemented or 

proposed solutions; 

c. Identify any and all dates on which Essroc Retired the Bessemer Kilns; 

d. Provide all CEMS data collected for each Kiln, including an explanation of any 

periods of CEMS downtime together with any missing data for which Essroc 

applied missing data substitution procedures, under Section VI.B (NOx 

Continuous Emission Monitoring Systems) and Section VILB (S02 Continuous 

Emission Monitoring Systems); 

33 
e. Demonstrate compliance with all applicable 30- Day Rolling Average Emission 

Limits in Section VI (NOx Control Technology, Emission Limits, and Monitoring 

Requirements) and Section VII (S02 Control Technology. Emission Limits, and 

Monitoring Requirements) of this Consent Decree; 

f. Provide a complete description and status of all actions Essroc has undertaken to 

comply with the Appendix ofthis Consent Decree; 

g. Demonstrate compliance with any applicable 30~Day Rolling Average Emission 

Limits established mlder Appendix A or B of this Consent Decree; 

h. If applicable, describe the status of actions undertaken pursuant to Section IX 

(Prohibition on Netting Credits or Offsets from Required Controls) of this 

Consent Decree; 

1. Describe the status of permit applications and any proposed SIP revisions 

required under this Consent Decree; and 

J. Describe the status of any operation and maintenance work relating to activities 

required under this Consent Decree. 

The semi-annual and annual reports shall also include a description of any non-compliance with 

the requirements of this Consent Decree and an explanation of the violation's likely cause and of 

the remedial steps taken, or to be taken, to prevent or minimize such violation. 

50. If Essroc violates, or has reason to believe that it may violate, any requirement of 

this Consent Decree, Essroc shaH notify the U.S. EPA and the Affected State of such violation 

and its likely duration, in writing, within ten Business Days of the Day Essroc first become 

aware of the violation, with an explanation of the violation's likely cause and of the remedial 

steps taken, or to be taken, to prevent or minimize such violation. Essroc shall investigate the 

34 
cause of the violation and shall then submit an amendment to its last periodic report, including a 

fun explanation of the cause of the violation, within 30 Days of the Day Essroc becomes aware 

of the cause of the violation. Nothing in this Paragraph or the following Paragraph relieves 

Essroc of its obligation to provide the notice required by Section XIV of this Consent Decree 

(Force Majeure) if Essroc contends a Force Majeure event occurred. 

51. Whenever any violation of this Consent Decree, or of any applicable permits 

required under this Consent Decree, or any other event affecting Essroc's performance under this 

Decree, or the performance of any Facility, may pose an immediate threat to the public health or 

welfare or the environment, Essroc shall notify U.S. EPA and the Affected State, orally or by 

electronic or facsimile transmission as soon as possible, but no later than 24 hours after Essroc 

first knew, or should have known, of the violation or event. This procedure is in addition to the 

requirements set forth in the preceding Paragraph. 

52. All reports shall be submitted to the persons designated in Section XIX of this 

Consent Decree (Notices). 

53. Each report submitted by Essroc under this Section shall be signed by an official 

of the submitting party and include the following certification: 

I certify under penalty of law that this document and all 

attachments were prepared under my direction or supervision in 

accordance with a system designed to assure that qualified 

personnel properly gather and evaluate the information submitted. 

Based on my inquiry of the person or persons who manage the 

system, or those persons directly responsible for gathering the 

information, the information submitted is, to the best of my 

knowledge and belief, true, accurate and complete. I am aware 

that there are significant penalties for submitting false information, 

including the possibility of fine and imprisonment for knowing 

violations. 

35 
This certification requirement does not apply to emergency or similar notifications where 

compliance would be impractical. 

54. The reporting requirements of this Consent Decree do not relieve Essroc of any 

reporting obligations required by the Clean Air Act or implementing regulations, or by any other 

federal, State, or local law, regulation, permit, or other requirement. 

55. Any information provided pursuant to this Consent Decree may be used by the 

United States in any proceeding to enforce the provisions of this Consent Decree and as 

otherwise permitted by law. 

56, Essroc may also assert that infonnation required to be provided under this Section 

is protected as ''Confidential Business Information" under 40 C.F,R. Part 2. In such a situation, 

Essroc may submit the information to U.S. EPA and the Affected State as "Confidential Business 

Information," subject to the provisions of 40 C.F.R. Part 2 .. As to any information that Essroc 

seeks to protect as CBI, Essroc shall follow the procedures set forth in 40 C.F.R. Part 2 and any 

applicable State laws. No monitoring data or other data evidencing the amount of content of 

emissions from any Facility shall be considered as CBI or subject to any privilege. 

XIII. STIPULATED PENALTIES 

57. Essroc shall be liable for stipulated penalties to the United States and Affected 

State(s) for violations of this Consent Decree as specified in Table 5 below, unless excused under 

Section XIV (Force Majeure). A violation includes failing to perfonn any obligation required by 

the terms of this Decree, including any work plan or schedule approved under this Decree, 

according to all applicable requirements of this Decree and within the specified time schedules 

established by or approved under this Decree. Violation of an Emission Limit that is based on a 

30-Day Rolling Average is a violation on every Day on which the average is based. Each 

36 
subsequent Day of violation of a 30-Day Rolling Average Emission Limit is subject to the 

corresponding penalty per Day as specified in Table 5 below. Where a violation of a 30-Day 

Rolling Average Emission Limit (for the same pollutant and from the same source) recurs within 

periods oHess than thirty (30) Days, Essroc shall not pay a second or multiple daily stipulated 

penalty for any Day of recurrence for wruch a stipulated penalty is already payable. Stipulated 

penalties may only be assessed once for a given Day or month within any averaging period for 

violation of any particular Emission Limit. Stipulated penalties for consecutive periods of 

violation of an Emission Limit shall be calculated based upon the violation of the Emission Limit 

for the same pollutant from the same Kiln. 

Table 5 

Consent Decree Violation Stipu.lated Penalty 

Failure to pay the civil penalty as specified in Section $7,500 for each Day IV (Civil Penalty) oftrus Consent Decree. 

Failure to comply with a 30-Day Rolling Average $},500 for each Day during any 30-

Emission Limit for NOx or S02 or PM where the Day rolling period where the 

emissions are less than 5% in excess of the limits set violation is less than 5% in excess of 

forth in this Consent Decree. the Limit. 

Failure to comply with a 30-Day Rolling Average $3,000 for each Day during any 30-

Emission Limit for NO" or S02 or PM where the Day rolling period where the 

emissions are equal to or greater than 5% but less than violation is equal to or greater than 

10% in excess of the limits set forth in this Consent 5% but less than 10% in excess of the 

Decree Limit. 

Failure to comply with a 30-Day Rolling Average $5,000 for each Day during any 30-

Emission Limit for NOx or S02 or PM where the Day rolling period where equal to or 

emissions are equal to or greater than 10% in excess of greater than 10% in excess of the 

the limits set forth in this Consent Decree Limit. 

37 
$5,000 for each consecutive Day 

Failure to install or Commence Continuous Operation during the first 20 Days, $10,000 for 

or Continuously Operate Control Technology at a Kiln each consecutive Day for the next 40 

Days, and $37,500 for each 

consecutive Day thereafter 

Failure to Retire any Kiln pursuant to the Consent $100,000 upon re-commencing Kiln 

Decree. Operation and $37,500 for each Day 

thereafter 

Failure to install or Commence Continuous Operation 

or Continuously Operate Control Technology at a Kiln $100,000 for the first Day upon reupon re-commencing operation of that Kiln following commencing Kiln Operation and 

Temporary Cessation of Kiln Operation under Section $37,500 for each Day thereafter 

VIII of this Consent Decree 

Failure to apply for any pennit or permit amendment $1 ,000 for each Day for each such 

or seek a SIP approval required by Section X (Permits) failure 

Failure to install or operate a CEMS in conformance 

with the requirements of Section VLB (NOx $1.000 for each Day for each such Continuous Emission Monitoring Systems) or Section 

VII.B (S02 Continuous Emission Monitoring failure 

Systems), as applicable. 

Failure to timely submit, modifY. or implement, as 

approved, a report, pla.n, study, analysis, protocol, or $750 for each Day during the first 10 

other submittal required by this Consent Decree and Days, $1,000 per Day thereafter 

Appendix A or B. 

Any other violation of this Consent Decree. $1,000 for each Day for each 

violation 

58. Subject to the provisions of Paragraph 57 above, stipulated penalties under this 

Section shall begin to accrue on the-Day after performance is due or on the Day a violation 

occurs, whichever is applicable, and shall continue to accrue until performance is satisfactorily 

completed or until the violation ceases. Stipulated penalties shall accrue simultaneously for 

separate violations oftms Consent Decree. The United States or Affected State(s), or all of the 

foregoing, may seek stipulated penalties under this Section. Where both the United States and 

38 
the Affected State(s) seek stipulated penalties for the same violation of this Consent Decree~ 

Essroc shall pay 67% to the United States and 33% to the Affected State(s). 

59. Essroc shall pay any stipulated penalty within thirty (30) Days of receiving the 

United States' anellor the Affected State(s') written demand. 

60. EPA and the Affected State(s) may, in the unreviewable exercise of their 

collective or individual discretion, reduce or waive stipulated penalties otherwise due either the 

United States or.the Affected State(s) under this Consent Decree. 

61. Stipulated penalties shaH continue to accrue as provided in this Section, during 

any Dispute Resolution, but need not be paid until the following: 

a. If the dispute is resolved by agreement between the Parties or by a decision of the 

United States or the Affected State that is not appealed to the Court, Essroc shall 

pay accrued penalties determined to be owing, together with interest accruing 

from the 31 st Day after the written demand in Paragraph 59, within 30 Days of the 

effective date of the agreement or the receipt of U. S. EPA's or the Affected 

State's decision or order. 

b. If the dispute is appealed to the Court and the United States or the Affected State 

is the prevailing party, in whole or in part, as may be detennined by the Court, 

Essroc shall pay all accrued penalties determined by the Court to be owing, 

together with interest accruing from the 31 st Day after the written demand in 

Paragraph 59, within 60 Days of receiving the Court's decision or order, except as 

provided in Subparagraph c, below. 

c. If any Party appeals the District Court's decision, Essroc shall pay all accrued 

penalties determined to be owing, together with interest accruing from the 31 st 

39 
Day after the written demand in Paragraph 59, within 15 Days of receiving the 

final appellate court decision. 

62. Essroc shall pay stipulated penalties owing to the United States and an Affected 

State in the manner set forth and with the confirmation notices to the persons specified in 

Paragraphs 8 and 9, except that the transmittal letter shall state that the payment is for stipulated 

penalties and shall state for which violation(s) the penalties are being paid. Essroc shall pay 

stipulated penalties owing to an Affected State in accordance with the instructions provided 

below: 

Table 6 

State Payment Instructions 

Pennsylvania Commonwealth of Pennsylvania - Clean Air Fund 

Attn: Mark Wejkszner 

Air Quality Program Manager 

P A Department of Environmental Protection, 

2 Public Square 

Wilkes~Barre, PA 18711 

West Virginia Air Pollution Education & Environmental Fund 

West Virginia Division of Air Quality 

Attn: John A. Benedict, Director 

601 57th St. SE 

Charleston, WV 25304 

Indiana "Environmental Management Special Fund" 

Indiana Department of Environmental Management 

Cashier - Mail Code 50-1 OC 

100 North Senate Avenue 

Indianapolis, IN 46204-2251 

Puerto Rico Puerto Rico Environmental Quality Board 

Pedro Nieves Miranda, Chairman 

Puerto Rico Environmental Quality Board 

POBOX 11488 

SAN JUAN, PR 00910 

Att. Luis R Sierra Torres, Manager Air Quality Area 

40 
63. Essroc shall not deduct stipulated penalties paid under this Section in calculating 

its federal or state income tax. 

64. IfEssroc fails to pay stipulated penalties according to the terms of this Consent 

Decree, ESSTOC shall be liable for interest on such penalties, as provided for in 28 U.S.C. § 1961, 

accruing as of the date payment became due. Nothing in this Paragraph shall be construed to 

limit the United States or any Affected State from securing any remedy otherwise provided by 

law for Essroc's failure to pay any stipulated penalties. 

65. Subject to the provisions of Section XVII of this Consent Decree (Effect of 

SettlementlReservation of Rights), the stipulated penalties provided for in this Consent Decree 

shall be in addition to any other rights, remedies, or sanctions available to the United States or an . 

Affected State for Essroc's violation of this Consent Decree or applicable law. Where a 

violation of this Consent Decree is also a violation of any applicable statute or regulation, Essroc 

shall be allowed a credit, dollar for dollar, for any stipulated penalties paid, against any statutory 

penalties imposed for such violation, including penalties resulting from enforcement pursuant to 

Paragraphs 92 and 93. 

XIV. FORCE MAJEURE 

66. "Force Majeure" (for purposes of this Consent Decree) is defined as any event 

arising from causes beyond the control of Essroc, that causes a delay or impediment to 

performance in complying with any obligation under this Consent Decree despite Essroc's best 

efforts to fulfill the obligation. The requirement that Essroc exercise best efforts to fulfill the 

obligation includes using best efforts to anticipate any potential Force Majeure event and best 

efforts to addr:ess the effects of any such event (a) as it is occurring and (b) after it has occurred 

41 
to prevent or minimize any resulting delay to the greatest extent possible. Force Majeure does 

not include Essroc's financial inability to perform any obligation under this Consent Decree. 

67. If any event occurs or has occurred that may delay the perfonnance of any 

obligation under this Consent Decree, and which Essroc contends qualifies as an event of Force 

Majeure, Essroc shall provide notice orally or by electronic or facsimile transmission to the 

representatives of U.S. EPA and the Affected State(s) designated to receive notice pursuant to 

Section XIX (Notices) as soon as practicable but no later than seven (7) Business Days following 

the date Essroc first knew, or in the exercise of due diligence should have known, that the 

claimed Force Majeure event might cause a delay and give rise to a claim of Force Majeure. 

Essroc shall provide written notice of the event as soon as practicable, but in no event later than 

twenty-one (21) Business Days following the date when Essroc first knew that the event might 

cause a delay. The written notice shall explain and describe the reasons for the delay; the 

anticipated duration of the delay; all actions taken or to be taken to prevent or minimize the delay; 

a schedule for implementation of any measures to be taken to prevent or mitigate the delay or the 

effect of the delay; and Essroc's rationale for attributing such delay to a Force Majeure event ifit 

intends to assert such a claim. Essroc shall include with any written notice all available 

documentation supporting the claim that the delay was attributable to a Force Majeure. Essroc 

shall be deemed to know of any circumstance of which Essroc' s Contractors knew or should 

have known. 

68. Failure by Essroc to comply with the notice requirements of Paragraph 67 renders 

this Section voidable by U.S. EPA, as to the specific event for which Essroc has failed to comply 

with such notice requirement. If so voided, it shall be of no effect as to the particular event 

involved. 

42 
69. If U.S. EPA and the Affected State agree that the delay or anticipated delay is 

attributable to a Force Majeure event, the appropriate Parties may reach agreement and stipulate 

in writing to an extension of the required deadline(s) for all requirement(s) affected by the Force 

Majeure event for a period equivalent to the delay actually caused by the Force Majeure event, or 

such other period as may be appropriate in light of the circumstances. If such stipulation results 

in a material change to the terms of the Consent Decree, the stipulation shall be filed as a 

modification to the Consent Decree pursuant to Section XXII (Modification). An extension of 

the time for performance of the obligations affected by the Force Majeure event shall not, of 

itself, extend the time for performance of any other obligation. If the Parties do not reach 

agreement on the appropriate extension of any deadlines affected by a Force Majeure event, U.S. 

EPA and the Affected State will notify Essroc in writing of the length of the extension, if any, for 

performance of the obligations affected by the Foree Majeure event. Essroc shall comply with 

the extended deadlines specified in the notice from U.S. EPA and the Affected State, subject to 

the provisions of Section :xv (Dispute Resolution). 

70. IfD.S. EPA, after consultation with the Affected State, does not agree that the 

delay or anticipated delay has been or will be caused by a Force Majeure event, U.S. EPA will 

notify Essroc in vtriting of its decision. 

71. If Essroc elects to invoke the formal dispute resolution procedures set forth in 

Section XV (Dispute Resolution), it shall do so no later than forty-five (45) Days after receipt of 

U.S. EPA's and the Affected State's notice pursuant to Paragraph 69 or Paragraph 70, whichever 

applies, and shall first comply with the provisions for informal dispute resolution contained ill 

Section XVI before proceeding to Fonnal Dispute Resolution. In any such proceeding in 

accordance with Formal Dispute Resolution Procedures, Essroc shall have the burden of 

43 
demonstrating that the delay or anticipated delay has been or will be caused by a Force Majeure 

event~ that the duration of the delay or the extension sought was or will be warranted under the 

circumstances, that best efforts were exercised to avoid and mitigate the effects of the delay, and 

that Essroc complied with the requirements of Paragraphs 66-67, above. If Essroc carries this 

burden, the delay at issue shall be deemed not to be a violation by Essroc of the affected 

obligation of this Consent Decree identified to U.S. EPA and the Court. 

72. This Court shall not draw any inferences nor establish any presumptions adverse 

to any Party as a result ofEssroc delivering a notice of Force Majeure or the Parties' inability to 

reach agreement. 

XV. DISPUTE RESOLUTION 

73. Unless otherwise expressly provided for in this Consent Decree, the dispute 

resolution procedures of this Section shall be the exclusive mechanism to resolve disputes arising 

under or with respect to this Consent Decree, including, but not limited to, Section XIII 

(Stipulated Penalties) and Section XIV (Force Majeure). Essroc's failure to seek resolution of a 

dispute under this Section shall preclude Essroc from raising any such issue as a defense to an 

action by the United States or the Affected State(s) to enforce any obligation of Essroc arising 

under this Decree. 

74. Infonnal Dispute Resolution for Emission Limit Setting Process. IfEssroc 

invokes Dispute Resolution regarding a U.S. EPA established final alternative 30-Day Rolling 

Average Emission Limi4 Essroc shall simultaneously initiate the process set forth in this 

Paragraph to identify and propose to U.S. EPA, pursuant to subparagraph (a) below, an 

independent contractor who "vill be tasked to analyze the Emission Limits established by U.S. 

EPA and proposed by Essroc and to provide, for the benefit of both U.S. EPA and Essroc, the 

44 
reports, analysis, and services identified in this Paragraph, below, by the specified deadlines. If 

US. EPA approves the independent contractor, Essroc shall hire and bear all costs associated 

with the contractor's work up to $150,000, and shall provide the contractor access to all records, 

employees, contracts, and facilities which are reasonably necessary to complete the report 

required by this Paragraph. If costs to perform the work set forth in the Statement of Work 

(SOW) requirements described in Paragraph 74(b) are expected to be higher than $150,000, 

Essroc and U.S. EPA will, confer on ways to limit or modify the nature and/or scope of the work 

and to provide a useful report without exceeding the expenditure limitation. Essroc shall have no 

obligation to exceed the expenditure limitation in this Paragraph, but may agree to do so in an 

individual instance. For purposes oftrus Paragraph, "independent" shall mean a qualified 

professional with at least 5 years of experience relating to the operations of andlor emissions 

from cement kilns or similar sources and who has not previously been employed or retained by 

Essroc in any capacity. To implement the requirements of this Paragraph 74, Essroc shall: 

a. Submit to U.S. EPA for approval, the name and qualifications of a proposed 

contractor for this engagement at the time it submits its Written Notice of Dispute 

in accordance with Section XIX (Notice). If U.S. EPA disapproves of the 

contractor, Essroc is required to propose to u.s. EPA within 15 days of the 

disapproval a different contractor, also subject to U.S. EPA's approval. IfU.S. 

EPA disapproves the third contractor, U.S. EPA may choose and identify to 

Essroc the Contractor to be employed. Essroc shall enter into a contract with the 

Contractor, containing the Statement of Work requirements in Paragraph 74(b), 

below within 7 days of U.S. EPA's approval or final identification of the 

Contractor. 

45 
b. Provide, as part of the contract, to the Contractor, a Statement of Work (SOW) 

which will include a requirement or direction to: 

. i. Analyze the baseline data, if available, as well as the Demonstration 

Report, proposed Emission Limits, data collected during the 

demonstration phase and any other relevant data from the Facility; 

11. Submit to U.S. EPA and Essroc, with a copy to the Affected State, a report 

on the appropriate 30-day Rolling Average Emission Limit, consistent 

with the methodology set forth in and information collected through 

Appendix A ("contractor report"), based upon the injection rates and the 

operational parameters approved as part of the Optimization Report 

required by Paragraph 12 of Appendix A. The conclusions of this report 

shall be based on aU of the information and data collected during the 

baseline, Optimization and Demonstration Periods, as well as any 

additional site-specific infonnation available to the contractor. The report 

will include a section on whether the data collected during the 

Demonstration Period is representative of normal operations of the unit, as 

well as a recommended fmal Emission Limit using the protocol and 

procedures in Appendix A; 

iii. Make available to U.S. EPA and any Affected State any and all data 

evaluated, and reveal ail communications with Essroc in the course of 

work pursuant to the SOW. The contractor shall also be tasked in the 

SOW to attend up to 40 hours of meetings specifically requested by U.S. 

EPA, to answer questions concerning any analysis or work undertaken 

46 
pursuant to the SOW. The SOW shall make clear that the contractor may 

discuss their analysis, findings and the content oftheir report with U.S. 

EPA and the Affected State prior to the completion of the report; and 

iv. Complete the contractor report within 45 days from the time of the 

effective date of the contract; 

c. The results of the contractor report will infonn the parties in the process of 

engaging in informal dispute resolution on the proposed and final pennit limit 

d. If the parties are unable to reach agreement on a final 30-Day Rolling Average 

Emission Limit within 20 days after receipt of the contractor report by U.S. EPA. 

Essroc may request formal dispute resolution under Paragraph 76 of this Consent 

Decree. The contractor report shall be part of the Dispute Resolution record in 

any fonnal dispute proceedings under this Consent Decree. 

75. Informal Dispute Resolution with Respectjct Other Disputes. Any dispute subject 

to Dispute Resolution under this Consent Decree shall first be the subject of informal 

negotiations. The dispute shaH be considered to have arisen when Essroc sends the United States 

and the Affected State(s) a written Notice of Dispute in accordance with Section XIX (Notice). 

Such Notice of Dispute shall state clearly the matter in dispute. The period of informal 

negotiations shall not exceed 20 Days from the date the dispute arises, unless that period is 

modified by written agreement. If the Parties cannot resolve a dispute by informal negotiations, 

then the position advanced by the United States and the Affected State(s) shall be considered 

binding unless, within 20 Days after the conclusion of the informal negotiation period, Essroc 

invokes fonnal dispute resolution procedures as set forth below. 

47 
76. Formal Dispute Resolution. Essroc shall invoke formal dispute resolution 

procedures, within the time period provided in the preceding Paragraph, by serving on the United 

States and Affected State(s)in accordance with Section XIX (Notice), a VvTitten Statement of 

Position regarding the matter in dispute. The Statement of Position shall include, but may not 

necessarily be limited to, any factual data; analysis, or opinion supporting Essroc's position and 

any supporting documentation relied upon by Essroc. 

77. The United States and the Affected State(s) shall serve their Statement of Position 

within 45 Days of receipt of Essroc's Statement of Position. The United States' and the Affected 

State(s)' Statement of Position shall include, but may not necessarily be limited to, any factual 

data, analysis, or opinion supporting that position and any supporting documentation relied upon 

by the United States and the Affected State(s). The Statement of Position of the United States 

and Affected S tate ( s) shall be binding on Essroc, unless Essroc files a motion for judicial review 

of the dispute in accordance with the following Paragraph. 

78. Essroc may seek judicial review of the dispute by filing with the Court, and 

serving on the United States and the Affected State(s), in accordance with Section XIX of this 

Consent Decree (Notices), a motion requesting judicial resolution of the dispute. The motion 

shall contain a wrjtten statement of Essroc' s position on the matter in dispute, including any 

supporting factual data, analysis, opinion, or documentation, and shall set forth the relief 

requested and any schedule within which the dispute must be resolved for orderly 

implementation of the Consent Decree. 

79. The United States and the Affected State(s) shall respond to Essroc's motion 

within the time period allowed by the Local Rules of this Court. Essroc may file a reply 

memorandum, to the extent permitted by the Local Rules. 

48 
80. Standard of Review. Except as otherwise provided in this Consent Decree. the 

Court shall decide all disputes pursuant to applicable principles of law. The disputing parties 

shall state their respective positions as to the applicable standard of law for resolving the 

particular dispute in the Parties' initial filings with the Court under Paragraphs 77 and 78 of this 

Consent Decree. Except as otherwise provided in this Consent Decree, in any dispute brought 

under this Section XV (Dispute Resolution), Essroc shall bear the burden of demonstrating that 

its position complies with this Consent Decree, 

81. The invocation of dispute resolution procedures under this Section shall not, by 

itself, extend, postpone, or affect in any way any obligation of Essroc under this Consent Decree, 

unless and until [mal resolution of the dispute so provides, Stipulated penalties with respect to 

the disputed matter shall continue to accrue from the first Day of noncompliance, but payment 

shall be stayed pending resolution of the dispute and in accordance with any extension or 

modification of the schedule for completion of work as provided in Paragraph 69. If Essroc does 

not prevail on the disputed issue, stipulated penalties shall be assessed and paid as provided in 

Section XIII (Stipulated Penalties). 

82. This Court shall not draw any inferences nor establish any presumptions adverse 

to any disputing Party as a result of invocation of this Section or the disputing Parties; inability 

to reach agreement. 

S3. As part of the resolution of any dispute tmder this Section, in appropriate 

circumstances the disputing Parties may agree, in writing, or this Court may order, an extension 

or modification of the schedule for the completion of the work required under this Consent 

Decree. 

49 
84. Issuance, renewal, modification, denial or revocation of a permit and issuance of 

orders or other actions by State agencies are not subject to dispute resolution under this Consent 

Decree, but shall be subject to challenge under applicable State law. 

XVI. INFORMATION COLLECTION AND RETENTION 

85. The United States, the Affected States and their representatives, including 

attorneys, Contractors, and consultants, shall have the right of entry into any Facility covered by 

this Consent Decree, at aU reasonable times, upon presentation of credentials, to: 

a. monitor the progress of activities required under this Consent Decree; 

b. verify any data or information submitted to the United States or the Affected 

State( s) in accordance with the terms of this Consent Decree; 

c. obtain samples and, upon request, splits of any samples taken by Essroc or its 

representatives, Contractors, or consultants; 

d. obtain copies of any documents, including photographs and similar data, relating 

to activities required under this Consent Decree; and 

e. assess Essroc's compliance with this Consent Decree. 

86. Until five years after the termination of this Consent Decree, Essroc shall retain in 

electronic fonn, and shall instruct its Contractors and agents to preserve in electronic fonn, all 

non-identical copies of all documents and records in their or their Contractors' or agents' 

possession or control, or that come into their or their Contractors' or a.gents' possession or 

control, and that relate in any manner to Essroc's performance of its obligations under this 

Consent Decree. This information-retention requirement shall apply regardless of any contrary 

corporate or institutional policies or procedures. At any time during this information-retention 

50 
period, upon request by the United States or the Affected State(s), Essroc shall provide copies of 

any documents, records, or other information required to be maintained under this Paragraph. 

87. At the conclusion of the information-retention pedod provided in Paragraph 86 

above, Essroc shall notifY the United States and the Affected States at least 90 Days prior to the 

destruction of any docmnents, records} or other information subject to the requirements of 

Paragraph 86 and, upon request by the United States or the Affected States, Essroc shall deliver 

any such documents, records, or other information to U.S. EPA or the Affected States. Essroc 

may assert that certain documents, records, or other information are privileged under the 

attorney-cHent privilege or any other privilege recognized by federal law. If Essroc asserts such 

a privilege. it shall provide the following: (1) the title of the document, record, or information; 

(2) the date of the document, record, or information; (3) the name and title of each author of the 

document, record, or information; (4) the name and title of each addressee and recipient; (5) a 

description of the subject of the document, record, or information; and (6) the privilege asserted 

by Essroc. However; no documents; records, or other information created or generated pursuant 

to the requirements oftrus Consent Decree shall be withheld on grounds of privilege. 

88. Essroc may assert that information required to be provided under this Section is 

protected as Confidential Business Information ("CBI") under 40 C.F.R. Part 2 and any 

applicable states laws. As to any information that Essroc seeks to protect as CBI, Essroc shall 

follow the procedures set forth in 40 C.F.R. Part 2 and any applicable State laws. 

89. This Consent Decree in no way limits or affects any right of entry and inspection, 

or any right to obtain information; held by the United States or the Affected State(s) pursuant to 

applicable federal or State laws, regulations; or pennits, nor does it limit or affect any duty or 

51 
obligation of Essroc to maintain documents, records, or other information imposed by applicable 

federal or State laws, regulations, or permits. 

XVII. EFFECT OF SETTLEMENTIRESERVATION OF RIGHTS 

90. Liability Resolution. With respect to the emissions ofNOx and S02 from the 

Kilns identified in Paragraph 7(v) entry ofthis Consent Decree shall resolve all civi11iability of 

Essroc to the United States and the Affected States for violations of the following requirements 

resulting from or ariSing out of a construction or modification that commenced prior to the Date 

of Lodging of the Consent Decree: 

a. The PSD requirements at Part C of Subchapter I of the Act, 42 U.S.C. § 7475, and 

the regulations promulgated thereunder at 40 C.F.R. § § 52.21 and 51.166; "Plan 

Requirements for Nonattainment Areas" at Part D of Subchapter I of the Act, 42 

U.S.C. §7503 and the regulations promulgated thereunder at 40 C.F.R. §§ 

51.165(a) and (b), 40 C.F.R. Part 51 (Appendix S), and 40 C.F.R. § 52.24; any 

applicable federally-enforceable State, regional, or local regulations that 

implement, adopt, or incorporate the specific federal regulatory requirements 

identified above; and, any applicable State, regional, or local regulations that 

implement, adopt, or incorporate the specific federal regulatory requirements 

identified above. 

b. Title V of the Clean Air Act1 42 U.S.C. §§ 7661-7661f; any applicable federallyenforceable State, regional, or local regulations that implement, adopt, or 

incorporate the specific federal regulatory requirements of Title V; and, any 

applicable State, regional, or local regulations that implement, adopt, or 

incorporate the specific federal regulatory reqUirements of Title V, but only to the 

52 
extent that such claims are based on Essroc's failure to obtain an operating pennit 

that reflects applicable requirements imposed under Parts C or D of Subchapter I 

of the Clean Air Act as a result of construction or modification of the Kilns 

identified in Paragraph 7(v) that commenced prior to the Date of Lodging. 

91. Notwithstanding the resolution of liability in Paragraph 90 nothing in this Consent 

Decree precludes the United States and/or the Affected States from seeking from Essroc 

injunctive relief, penalties, or other appropriate relief for violations by Essroc of the regulatory 

requirements identified in Paragraph 90 resulting from (1) construction or modification that 

commenced prior to the Date of Lodging of the Consent Decree, if the resulting violations do not 

relate to the Kilns or do not relate to NOx or S02 or (2) any construction or modification that 

commences after the Date of Lodging of the Consent Decree. 

92. The United States and the Affected States reserve all legal and equitable remedies 

available to enforce the provisions of this Consent Decree. This Consent Decree shall not be 

construed to limit the rights of the United States or the Affected States to obtain penalties or 

injunctive relief under the Act or implementing regulations, or under other federal or State laws, 

regulations, or penni! conditions, except as expressly specified in Paragraph 90. The United 

States and the Affected States further reserve all legal and equitable remedies to address any 

imminent and substantial endangennent to the public health or welfare or the environment 

arising at, or posed by, one or more of Essroc's Facilities, whether related to the violations 

addressed in this Consent Decree or otherwise. 

93. In any subsequent administrative or judicial proceeding initiated by the United 

States or the Affected States for injunctive relief, civil penalties, other appropriate relief relating 

to the Facilities or Essroc's violations, Essroc shall not assert, and may not maintain; any defense 

53 
or claim based upon the principles of waiver, res judicata, collateral estoppel, issue preclusion, 

claim preclusion, claim-splitting, or other defenses based upon any contention that the claims 

raised by the United States or an Affected State in the subsequent proceeding were or should 

have been brought in the instant case, except with respect to claims that have been specifically 

resolved pursuant to Paragraph 90 of this Section. 

94. This Consent Decree is not a permit, or a modification of any permit, under any 

federal, State, or local laws or regulations. Essroc is responsible for achieving and maintaining 

complete compliance with all applicable federal, State, and local laws, regulations, and permits; 

and Essroc' s compliance with this Consent Decree shall be no defense to any action commenced 

pursuant to any such laws, regulations, or permits, except as set forth herein. The United States 

and the Affected States do not, by their consent to the entry of this Consent Decree, warrant or 

aver in any manner that Essroc's compliance with any aspect of this Consent Decree will result 

in compliance with provisions of the Act, 42 U.S.C. § 7401 et seq., or with any other provisions 

of federal, State, or local laws, regulations, or permits. 

95. This Consent Decree does not limit or affect the rights of Essroc or ofthe United 

States or the Affected States against any third parties; not party to this Consent Decree, nor does 

it limit the rights of third parties, not party to this Consent Decree, against Essroc, except as 

otherwise provided by law. 

96. This Consent Decree shall not be construed to create rights in, or grant any cause 

of action to, any third party not party to this Consent Decree. 

XVIII. COSTS 

97. The Parties shall bear their own costs of this action, including attorneys' fees, 

except that the United States and any Affected State shall be entitled to collect the costs 

54 
(including attorneys' fees) incurred in any action necessary to collect any portion of the civil 

penaJty or any stipulated penalties due but not paid by Essroc. 

XIX. NOTICES 

98. Unless otherwise specified herein, whenever notifications, submissions, or 

communications are required by this Consent Decree, they shall be made in writing and 

addressed as follows: 

To U.S. EPA: 

Director, Air Enforcement Division 

U.S. Environmental Protection Agency 

MC2242A 

1200 Pennsylvania Ave. NW 

Washington, D.C. 20460 

And 

For all submissions referring to the San Juan Facility: 

Chief, Air Compliance Branch 

USEPA Region 2 

290 Broadway- 21 sl Floor 

New York, NY 10007-1866 

For all submissions referring to the Bessemer, Nazareth, and Martinsburg Facilities: 

Chief, Air Enforcement Branch 

U.S. EPA Region III 

1650 Arch Street (3PM52) 

Philadelphia, PA 19103-2029 

For all submissions referring to the Speed and Logansport Facilities: 

George Czerniak 

U.S. EPA Region V 

77 W. Jackson Blvd. (AE-17J) 

Chicago, IL 60604 

55 
To the United States (in addition to the U.S. EPA addresses above): 

Chief, Environmental Enforcement Section 

Environment and Natural Resources Division 

U.s. Department of Justice 

Box 7611 Ben Franklin Station 

Washington, D.C. 20044-7611 

Re: DOJ No. 90-5-2-1-09608 

For all submissions referring to the Bessemer or Nazareth Facilities, to the Commonwealth of 

Pennsylvania: 

Mark Wejkszner 

Air Quality Program Manager 

PA Department of Environmental Protection, 

2 Public Square 

Wilkes-Barre, PA 18711 

For all submissions referring to the Martinsburg Facility, to the State of West Virginia: 

Jesse Adkins, Assistant Director, Compliance & Enforcement Section 

West Virginia Division of Air Quality 

601 57th St. SE 

Charleston, WV 25304 

For all submissions referring to the Speed and Logansport Facilities, to the State of Indiana: 

Indiana Department of Environmental Management 

Office of Air Quality 

Chief, Air Compliance and Enforcement Branch 

100 N. Senate Ave. 

Mail Code 61-53 IOCN 1003 

Indianapolis, IN 46204-2251 

For all submissions referring to the San Juan Facility, to the Commonwealth of Puerto Rico: 

Puerto Rico Environmental Quality Board 

Pedro Nieves Miranda, Chairman 

Attn: Luis R Sierra Torres, Manager Air Quality Area 

POBox 11488 

San Juan, PR 00910 . 

To Essroc: 

Silvio Panseri (or successor) 

56 
President and Chief Operating Officer 

Essroc Cement Corp. 

3251 Bath Pike 

Nazareth, P AJ 8064 

Gordon C. Andrews Esq. (or successor) 

General Counsel 

Essroc Cement Corp. 

3251 Bath Pike 

Nazareth, P A.18064 

Gary A. Molchan (or successor) 

Vice President Environmental Affairs 

Essroc Cement Corp. 

3251 Bath Pike 

Nazareth, PA18064 

Philip J. Schworer, Esq. 

Outside Counsel to Essroc Cement Corp. 

Frost Brown Todd LLC 

73 I 0 Turfway Rd. 

Florence, KY 41042 

99. Any Party may, by written notice to the other Parties, change its designated notice 

recipient or notice address or means of transmittal provided above. 

100. Notices submitted pursuant to this Section shaH be deemed submitted upon 

mailing, unless otherwise provided in this Consent Decree or by mutual agreement of the Parties 

in writing. 

xx. EFFECTIVE DATE 

101. The Effective Date of this Consent Decree shall be the date upon which this 

Consent Decree is entered by the Court or a motion to enter the Consent Decree is granted, 

whichever occurs fIrst. 

XXI. RETENTION OF JURISDICTION 

102. The Court shall retain jurisdiction over this case until termination of this Consent 

Decree, for the purpose of resolving disputes arising under this Decree or entering orders 

57 
modifying this Decree, pursuant to Sections XV (Dispute Resolution) and XXII (Modification), 

or effectuating or enforcing compliance with the terms of this Decree. 

XXII. MODIFICATION 

103. The tenns of this Consent Decree, including the Appendix, may be modified only 

by a subsequent written agreement signed by any Affected State(s), the United States, and Essroc, 

except as provided in Paragraph 104. Where the modification constitutes a material change to 

this Decree, it shall be effective only upon approval by the Court If the Effective Date of this 

Consent Decree is after January 30, 2012, the Parties will negotiate in good faith an extension of 

up to one year for any Dates of Commencement of Continuous Operation under Section VI (NOx 

Control Technology, Emission Limits, and Monitoring Requirements) or VII (S02 Control 

Technology. Emission Limits, and Monitoring Requirements). Such agreement, if reached by 

the Parties, shall be in writing and shall be submitted by the Parties on joint motion to the Court 

as a modification of this Consent Decree. 

104. Any disputes concerning modification of this Decree shall be resolved pursuant to 

Section XV of this Decree (Dispute Resolution), provided, however, that, instead of the burden 

of proof provided by Paragraph 80, the Party seeking the modification bears the burden of 

demonstrating that it is entitled to the requested modification in accordance with Federal Rule of 

Civil Procedure 60(b). 

XXIII. TERMINATION 

105. Termination as to an Individual Facility. After Essroc has paid the civil penalties 

and any stipulated penalties due under this Consent Decree, and satisfied the requirements of 

Sections VI (NOx Control Technology, Emi~sion Limits, and Monitoring Requirements), VII 

(S02 Control Technology, Emission Limits, and Monitoring Requirements), IX (Prohibition on 

58 
Netting Credits or Offsets from Required Controls) and X (Permits) of this Decree and has 

maintained operation of any Control Technology as required by this Consent Decree for a period 

of thirty-six consecutive months at an individual Facility, Essroc may serve upon the United 

States and the Affected State a Request for Termination, stating that Essroc has satisfied those 

requirements, together with all necessary supporting documentation. If the United States and the 

Affected State agree that the Decree as it relates to an individual Facility may be terminated, the 

Parties shall submit, for the Court's approval, a joint stipulation terminating those provisions of 

the Decree. 

106. Complete Termination. After Essroc has satisfied the requirements of Sections 

VI (NOx Control Technology, Emission Limits, and Monitoring Requirements), VII (S02 

Control Technology, Emission Limits, and Monitoring Requirements), IX (Prohibition on 

Netting Credits or Offsets from Required Controls) and X (Permits) of this Decree and has 

maintained operation of all Control Technology as required by this Consent Decree for a period 

of thirty-six consecutive months at all Facilities, has complied with all other requirements of this 

Consent Decree, and has paid the civil penalty and any accrued stipulated penalties as required 

by this Consent Decree, Essroc may serve upon the United States and the Affected States a 

Request for Termination, stating that Essroc has satisfied those requirements, together with all 

necessary supporting documentation. If the United States and the Affected State(s) agree that the 

Decree may be terminated, the Parties shall submit, for the Court's approval, a joint stipulation 

terminating the Decree. 

107. If the United States and the Affected State(s) do not agree that the Decree as a 

whole or as it relates to an individual Facility may be terminated, Essroc may invoke Dispute 

Resolution under Section XV of this Decree. However, Essroc shall not seek Dispute Resolution 

59 
of any dispute regarding tennination under Section XXIII of this Consent Decree until sixty (60) 

Days after service of its Request for Termination. 

XXIV. PUBLIC PARTICIPATION 

108. This Consent Decree shall be lodged with the Court for a period of not less than 

30 Days for public notice and comment in accordance with 28 C.F.R. § 50.7. The United States 

reserves the right to withdraw or withhold its consent if the comments regarding the Consent 

Decree disclose facts or considerations indicating that the Consent Decree is inappropriate, 

improper, or inadequate. Essroc consents to entry of this Consent Decree without further notice 

and agrees not to withdraw from or oppose entry of this Consent Decree by the Court or to 

challenge any provision of the Decree, unless the United States has notified Essroc in writing 

that it no longer supports entry of the Decree. 

XXV. SIGNATORIES/SERVICE 

109. The Assistant Attorney General or Acting Assistant Attorney General for the 

Environment and Natural Resources Division of the Department of Justice and each undersigned 

representative ofEssroc and the State Plaintiffs certifies that he or she is fully authorized to enter 

into the tenns and conditions of this Consent Decree and to execute and legally bind the Party he 

or she represents to this document. 

110. TIns Consent Decree may be signed in counterparts, and its validity shall not be 

challenged on that basis. Essroc agrees to accept service of process by mail with respect to all 

matters arising under or relating to this Consent Decree and to waive the fonnal serviCe 

requirements set forth in Rules 4 and 5 of the Federal Rules ofCiviI Procedure and any 

applicable Local Rules of this Court including, but not limited to, service of a summons. Essroc 

shall identifY; on the attached signature page, the name, address and telephone number of an 

60 
agent who is authorized to accept service of process by mail on behalf of Essroc with respect to 

all matters arising under or relating to this Consent Decree. All Parties agree that Essroc need 

not file an answer or otherwise respond to the Complaint and Complaint in Intervention in this 

action unless or until the Court expressly declines to enter this Consent Decree. 

XXVI. INTEGRATION 

111. This Consent Decree constitutes the final, complete, and exclusive agreement and 

understanding among the Parties with respect to the settlement embodied in the Decree and 

supersedes all prior agreements and understandings, whether oral or written, concerning the 

settlement embodied herein. No other document, nor any representation, inducement, agreement, 

understanding or promise constitutes any part of this Decree or the settlement it represents, nor 

shan it be used in construing the terms of this Decree. 

XXVII. FINAL JUDGMENT 

112. Upon approval and entry of this Consent Decree by the Court, this Consent 

Decree shaH constitute a fmal judgment ofthe Court as to the United States, the Commonwealth 

of Pennsylvania, the State of Indiana, the State of West Virginia, the Commonwealth of Puerto 

Rico, and Essroc. The Court finds that there is no just reason for delay and therefore enters this 

judgment as a final judgment under Fed. R. Civ. P. 54 and 58. 

XXVIII. APPENDIX 

113. The following Appendix are attached to and incorporated as part of this Consent 

Decree: 

"Appendix A" contains the Control Technology Demonstration Requirements that apply 

to each Kiln under this Decree subject to those requirements. 

61 
"Appendix Bit contains the requirements to be included in the SCR Pilot Study and Full 

Scale Demonstration. 

"Appendix Cit contains the requirements ofthe Environmental Mitigation Projects. 

All terms in the Appendix shall be construed in a manner consistent with this Decree. 

Dated and entered this __ Day of _____ ~~ __ 

UNITED STATES DISTRICT COURT JUDGE 

Western District of Pennsylvania 

62 
Signature Page for United States of America et al v. Essroc Cement Corp adv., Consent Decree 

FOR PLAINTIFF UNITED STATES OF AMERICA: 

IGNACIA S. MORENO 

Assistant Attorney General 

Environment and Natural Resources 

Division 

United States Department of Justice 

ELLIOT ROCKLER 

Trial Attorney 

Environmental Enforcement Section 

Environment and Natural Resources Division 

United States Department of Justice 

P.O. Box 7611 

Washington, D.C. 20044-7611 

DAVID J. HICKTON 

United States Attorney 

United States Attorneys' Office 

U.S. Post Office and Court House 

700 Grant Street, Suite 4000 

Pittsburgh, P A 15219 

PAUL E. SKIRTICH 

Assistant United States Attorney 

United States Attorneys' Office 

U.S. Post Office and Court House 

700 Grant Street 

Pittsburgh, P A 15219 

63 

Date: 

Date: ------------------

Date: ------------------

Date: ------------------
Signature Page for United States of America et al v. Essroc Cement Corp aciv., Consent Decree 

FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY: 

CYNTHIA GILES 

Assistant Administrator 

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 

PHILLIP A. BROOKS 

Director, Air Enforcement Division 

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 

SEEMA KAKADE 

Attorney-Advisor, Air Enforcement Division 

Office of Enforcement and Compliance Assurance 

United States Environmental Protection Agency 

64 

Date: 

Date: 

Date: 
Signature Page for United States of America et al. v. Essroc Cement Corp aciv., Consent Decree 

FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY: 

JUDITHENCK 

Acting Regional Administrator 

United States Environmental Protection Agency 

Region 2 

JOSEPH SIEGEL 

Attorney-Adviser 

United States Environmental Protection Agency 

Region 2 

65 

Date: ------

Date: ------
Signature Page for United States of America et at. v. Essroc Cement Corp adv., Consent Decree 

FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY: 

SHAWN M. GARVIN 

Regional Administrator 

United States Environmental Protection Agency 

Region 3 

J. ROBERT STOLTZFUS 

Attorney-Advisor 

United States Environmental Protection Agency 

Region 3 

66 

Date: ------

Date: ------
Signature Page for United States 0/ America et aL v. Essroc Cement Corp adv., Consent Decree 

FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY: 

SUSAN HEDMAN 

Regional Administrator 

United States Environmental Protection Agency 

Region 5 

SUSAN PERDOMO 

Regional Counsel 

United States Environmental Protection Agency 

Region 5 

67 

Date: ------

Date: ------
Signature Page for United States of America et al v. Essroc Cement Corp adv., Consent Decree 

FOR THE COMMONWEALTH OF PENNSYL VANIA: 

Michael Bedrin, Regional Director 

Commonwealth of Pennsylvania 

Department of Environmental Protection 

Northeast Regional Office 

Sean Robbins, Assistant Counsel 

Commonwealth of Pennsylvania 

Department of Environmental Protection 

Northeast'Regional Office 

68 

Date: 

Date: 
Signature Page for United States of America et al v .. Essroc Cement Corp adv., Consent Decree 

FOR THE STATE OF INDIANA: 

Thomas W. Easterly 

Commissioner 

Indiana Department of Environmental Management 

As to form and legality: 

Gregory F. Zoeller 

Indiana Attorney General 

Patricia Orloff Erdmann 

Chief Counsel for Litigation 

Office of the Attorney General 

Indiana Government Center South 

Indianapolis, Indiana 

69 

Date: 

Date: 
Signature Page for United States of America et al v. Essroc Cement Corp adv., Consent Decree 

FOR THE STATE OF WEST VIRGINIA: 

John A. Benedict, Director 

Division of Air Quality 

West Virginia Department of Environmental Protection 

Sarah J. Surber 

Associate Counsel 

Office of Legal Services 

West Virginia Department of Environrnental Protection 

70 

Date: 

Date: 
Signature Page for United States of America et al v. Essroc Cement Corp adv., Consent Decree 

FOR THE COMMONWEALTH OF PUERTO RICO 

Pedro Nieves Miranda, Chainnan 

Puerto Rico Environmental Quality Board 

San Juan, Puerto Rico 

71 

Date: 
Signature Page for United States of America et al v. Essroc Cement Corp adv., Consent Decree 

FOR DEFENDANT ESSROC CEMENT CORP: 

Silvio Panseri 

President and Chief Operating Officer 

Essroc Cement Corp. 

3251 Bath Pike 

Nazareth, PA.18064 

Gordon C. Andrews Esq. 

General Counsel 

Essroc Cement Corp. 

3251 Bath Pike 

Nazareth, P A. 18064 

Date: 

Date: 

The foHowing is the name and address of Defendant Essroc Cement Corp's agent for service 

pursuant to Paragraph 110. 

Philip J. Schworer, Esq. 

Outside Counsel to Essroc Cement Corp. 

Frost Brown Todd LLC 

7310 Turfway Rd. 

Florence, KY 41042 

72 
CONSENT DECREE APPENDIX 

United States 0/ America et al v. Essroc Cement Corp adv. 
CONSENT DECREE APPENDIX A 

United States of America et al v. Essroc Cement Corp adv. 

Control Technology Demonstration Requirements 

I. Scope and Applicability 

1. Essroc shall comply with the requirements contained in this Appendix A in proposing 

and establishing 30-Day Rolling Average Emission Limits for Nitrogen Oxide ("NOx") 

and Sulfur Dioxide ("S02") for Martinsburg (for S02), San Juan (for NOx), and at 

Logansport Kiln 1 and 2 (for NOx determined based on SNCR). The kilns SUbject to this 

Appendix shall be referred to individually as "Demonstration Kiln" or collectively as 

"Demonstration Kilns." Other terms have the same meaning in this Appendix A as in the 

Consent Decree unless otherwise identified. 

2. The Demonstration Kilns include kilns of varying type,age, design and operating 

capacities. Raw materials employed in the Demonstration Kilns vary substantially. Fuels 

used in the Demonstration Kilns vary by location and may include fuel oil, natural gas, 

coal, petroleum coke, tire-derived fuel, hazardous waste derived fuel, used oils and other 

materials reused as fuel. Demonstration Kilns will be limited to those fuels and the 

amounts allowed by their various operating permits. 

3. Supporting data required to be submitted under this protocol may contain information 

relative to operation of any Demonstration Kiln and production data that Essroc considers 

to be proprietary. In such a situation, Essroc may submit the information to U.s. EPA 

under a claim of confidential business information (CBI) subject to the provisions of 40 

C.F.R. Part 2, and shall comply with all procedures and requirements of 40 C.F.R. Part 2 

in so doing. 

4. Essroc shall take the following steps to establish 30-day Rolling Average Emission 

Limits for NOx and S02 at each Demonstration Kiln: 

a. Design Report: With the exception of the Martinsburg Kiln where the SOx 

Control Technology has already been installed during the course of negotiations 

ofthis Consent Decree, Essroc shall prepare and submit to U.S. EPA a Design 

Report for each required Control Technology for NOx and S02, based on similar 

NOx and S02 control technology installations and the control requirements of this 

Consent Decree. In accordance with Section II of this Appendix, if Essroc 

chooses an alternate reagent for the existing Control Technology, it shaH first 

prepare and submit a Design Report; 

b. Baseline Data Collection: Prior to initiating operation of any Control 

Technology, Essroc shall either: (i) collect new baseline emissions and 

operational data for a 180-day period; or (ii) obtain U.S. EPA's approval of 
baseline emissions and operational data from a period prior to the date of any 

baseline data collection period. Such baseline emissions and operational data 

shall be representative of the full range ofnonnal kiln operations, including 

regular operating changes in raw mix chemistry due to different clinker 

manufacture and changes in production levels and shall comply with Section III 

of this Appendix. 

c. Startup and Optimization Period: Following completion of installation of each 

Control Technology, Essroc shall undertake a startup and optimization program 

for each Control Technology in accordance with Section IV of this Appendix; 

d. Demonstration Program: Upon completion of the startup and optimization 

program specified above, Essroc shall operate each Control Technology (except 

for SNCR installed at Logansport which shall follow timelines established in 

Paragraph 19( c) of the Consent Decree) in an optimized manner for a period of 

300 Operating Days for the purpose of establishing a 3D-Day Rolling Average 

Emission Limit; 

e. Demonstration Report: Essroc shall prepare and submit to U.S. EPA for 

approval, a Final Report following completion of the Demonstration Program 

Period for each Control Technology used to establish 3D-Day Rolling Average 

Emission Limits. 

II. Design Report 

5. Essroc shall submit to U.S. EPA for approval a Design Report for each Control 

Technology. The Design Report win form the basis for any pennit application which 

may be required under state or federal law. U.S. EPA shall review and comment on the 

Design Report withln 45 days of receipt. Essroc shall respond to any comments received 

within 30 days of receipt. The Design Reports shall comply V\rith the following minimum 

requirements and shall be subject to the review requirements of Section XI (Review and 

Approval of Submittals) ofthe Consent Decree. 

a. Selective Non~Cata1ytic Reduction ("SNCR"): Essroc shall design the SNCR 

system to deliver the proposed reagent to the exhaust gases at the rate of at least 

1.2 mols of reagent to 1.0 mols of NO x (1.2:1 molar ratio). The system shall be 

designed to inject Ammonia into the kiln exhaust gas stream. Essroc shall specify 

in the Design Report the reagent(s) selected, the locations selected for reagent 

injection, and other design parameters based on maximum emission reduction 

effectiveness, good engineering judgment, vendor standards, available data, kiln 

operability, and regulatory restrictions on reagent storage and use. 

b. Dry Scrubber System ("Dry Scrubberlt): Essroc shall design the Dry Scrubber to 

deliver alkaline reagent to the exhaust gases at the rate of at least 3.0 mols of 

reagent to 1.0 mols of S02 (3: 1 molar ratio). Essroc shall specify in the Design 

Report the reagent injection location, other modifications and design parameters 
based on maximUIl1 emission reduction effectiveness, good engineering judgment, 

vendor standards, available data, and kiln operability. 

HI. Baseline Data Collection 

6. Prior to commencement of Continuous Operation of the required Control Technology, 

Essroc shall either: (a) collect new baseline emissions and operational data for a I SO-day 

period; or (b) obtain u.s. EPA approval pursuant to Section XI (Review and Approval of 

Submittals) of the Consent Decree of existing baseline emissions and operational data 

collected from a period oftime prior to the initiation of a baseline collection period. 

Such baseline emissions and operational data shall include the data required by Paragraph 

7 below for periods of time representing the full range ofnonnal kiln operations 

including changes in raw mix chemistry due to differing clinker manufacture, changes in 

production levels. Essroc shall select the data collection period to ensure the baseline 

data collection period will be representative of the normal Kiln Operation. 

7. Within 45 Days following the completion of the baseline data collection period, Essroc 

shall submit to U.S. EPA and the Affected State the baseline data collected during the 

baseline data collection period. The baseline data will include the following infonnation 

either derived from available direct monitoring or as estimated from monitored or 

measured data: 

a. Kiln flue gas temperature at the inlet to the fabric filter or electrostatic precipitator 

as applicable or at the Kiln stack (daily average); 

b. Kiln production rate in tons of clinker (daily total); 

c. Raw material feed rate in tons (daily total); 

d. Type and percentage of each raw material used and the total feed rate (daily); 

e. NOx, 802 and CO concentrations (dry basis) and mass rates for each Kiln (daily 

average for concentrations and .daily totals for mass rates) as measured at the Kiln 

stack gas analyzer location; 

f. Flue gas volumetric flow rate (daily average in dry acfm); 

g. Pyritic sulfur in feed (calculated to a daily average percentage); 

h. Feed burnability (C38) (at least once daily); 

i. Temperatures near the burning zone; 

j. Kiln fuel feed rate and type of fuel by weight or total heat input (daily average); 

k. Fuel distribution, if fuel is injected at more than one location, how much 1s 

injected at each location (daily average); 
l. Primary (and secondary and tertiary, where available) air rate into the Kiln, 

preheater and/or precalciner (as applicable) or blower/fan settings; 

m. Documentation of any Startup, Shut Down, or Malfunction events; and 

n. An explanation of any gaps in the data or missing data. 

8. Essroc shall submit the baseline data to U.S. EPA and the Affected State in an electronic 

format and shall explain the reasons for any data not collected for each of the parameters 

listed in the previous paragraph of this Appendix A. Essroc shall submit all data in a 

format consistent with and able to be manipulated by Microsoft Excel. 

IV. Startup and Optimization Period 

9. Essroc shall install and begin operating the Control Technologies according to the 

requirements of Section VI and VII of the Consent Decree. Essroc shall Commence 

Operation of each Control Technology in accordance with the final Design Report by 

adding reagent to the SNCR system andlor by combining reagent and kiln gases through 

the Dry Scrubber. 

10. Following completion of the installation of the control technologies, Essroc shall 

commence continuous operation of the Control Technology after a shakedown period not 

to exceed 90 days, in accordance with the Optimization Protocol de$cribed in Paragraph 

11 of this Appendix A. Essroc will commence optimization of each Control Technology 

immediately upon completion ofthe shakedown period. The Optimization Period wil1 be 

conducted in accordance with the approved Optimization Protocol and shaH last no 

longer than 150 operating days. 

11. Not later than 90 Days prior to the commencement of the optimization of the Control 

Technology, Essroc will submit to U.S. EPA a protocol for optimizing each Control 

Technology ("Optimization Protocol") to minimize emissions of NO x and S02 to the 

greatest extent practicable. U.S.EPA shall review and comment on the Protocol within 

45 days of receipt and Essroc will respond to any comments with 30 days of their receipt. 

The Optimization Protocol. shaH describe procedures that shall be used to evaluate the 

impact of different Control Technology operating parameters on the rate of emission 

reduction achieved by each applicable Control Technology and shaH contain: 

a. The steps taken to commence Continuous Operation of the Control Technology; 

b. The initial reagent injection rate (as a molar ratio of the average pollutant 

concentration calculated during the baseline period) for each Control Technology; 

c. A description of all sampling procedures that will be undertaken during the 

optimization of each Control Technology; 

d. Detailed description of the plan to increase the reagent injection rate for each 

Control Technology. At a minimum, Essroc shall test SNCR at three molar ratios 
of 0.75, 1.0, and 1.2, and shall test the Dry Scrubber at three molar ratios of 1.0, 

2.0 and 3.0; 

e. The factors that wiB determine the maximum reagent injection rates and pollutant 

emission rates for each Control Technology (including maintenance of Kiln 

productivity and product quality). One factor that shall determine the maximum 

reagent injection rate for the SNCR shall be to maintain ammonia slip to a level 

below 10 ppm; 

f. Explanation of how any observed synergistic effects on Kiln emissions, Kiln 

Operation or product quality from Control Technologies for NOx• S02 will be 

evaluated; 

g. Evaluation of the cost effectiveness of the incremental addition of reagent(s) and 

any incremental reduction in emissions of an air contaminant; and 

h. A detailed protocol for evaluating SNCR operation and reagent injection rates 

with respect to alternate fuel scenarios for those Demonstration Kilns where 

alternate fuels are permitted 

12. Within 30 Days following the optimization period for each Control Technology at each 

Demonstration Kiln Essroc shall provide to U.S. EPA an Optimization Report 

demonstrating conformance with the optimization protocol for the Control Technology 

and establishing the operating parameters for the Control Technology determined under 

the Optimization ProtocoL Essroc shall include in the report a discussion of any 

problems encountered with the operation of the Control Technology and the impact of the 

Optimization on emissions. U.S. EPA shall review and approve the Optimization Report 

including the optimized injection rate for each Control Technology within 45 Days of 

receipt of the Optimization Report and Essroc shaH respond to U.S. EPA within 30 Days. 

13. Except as otherwise provided in this Paragraph and in Paragraph 14, below, a Dry 

Scrubber or SCNR for an Demonstration Kiln shall be deemed to be optimized if the 

Optimization Report demonstrates that the Dry Scrubber or SNCR during periods of 

normal operation has achieved the percentage reduction consistent with its maximum 

design rate identified in the DeSign Report approved pursuant to Section II of this 

Appendix A. 

14. Notwithstanding the provisions of Paragraph 13 of this Appendix A, a Control 

Technology for a Demonstration Kiln shall be deemed to be optimized at a lower 

percentage reduction in the rate of emissions than that identified in Paragraph 13 if the 

Optimization Report demonstrates that, during periods of nonnal operation, a higher rate 

of emission reduction or operation cannot be sustained without creating a meaningful risk 

of impairing product quality, impairing kiln system reliability or impairing compliance 

with then applicable emission requirements or if the Control Technology cannot sustain 

operation at design values. 
15. During the Optimization Period, Essroc, to the extent practicable, shall operate the 

Control Technology in a manner consistent with good air pollution control practice for 

minimizing emissions. Essroc will adjust its optimization of a Control Technology as 

may be necessary to avoid, mitigate or abate an identifiable non-compliance with an 

emission limitation or standard for pollutants other than NO" or S02. In the event Essroc 

determines, prior to the expiration of 150 operating days, that its ability to optimize the 

Control Technology will be affected by potential impairments to product quality, kiln 

system reliability or increased emissions of other pollutants, then Essroc shall promptly 

advise U.S. EPA of this determination, and include these considerations as part of its 

recommendation in its Optimization Report. In the event that Essroc determines, prior to 

the expiration of 150 operating days that the Control Teclmology has been optimized, 

Essroc shall promptly advise U.S. EPA of this determination. 

v. Control Tecbnology Demonstration Period 

16. The Demonstration Period shall commence within 7 days after Essroc's receipt of the 

final approval by U.S. EPA of the Optimization Report. During the Demonstration 

Period, Essroc shall operate each Control Technology for a period of 300 Operating Days 

consistent with the operating parameters determined during the Optimization Period for 

the Control Technology and identified in the approved Optimization Report. 

17. If operation of an Demonstration Kiln is disrupted by excessive startups and shutdowns 

during the Demonstration Period, Essroc may request or U.S. EPA may decide to extend 

the Demonstration Period. U.S. EPA shall grant or deny any request and shall state the 

amount the time that the Demonstration Period will be extended is subject to the Section 

XV (Dispute Resolution) provisions of this Consent Decree. Essroc may not suspend 

Demonstration Period data collection until and unless U.S. EPA has granted the request. 

18. If evidence arises during the Demonstration Period that product quality, kiln system 

reliability, or compliance with an emission limitation or standard is impaired by reason of 

longer term operation ofa Control Technology in a manner consistent with the 

parameters identified in tbe Optimization Report, then Essroc may, upon notice to, and 

approval by, US. EPA, temporarily modify the manner of operation of the Facility 

process or the Control Technology to mitigate the effects and request that U.S. EPA 

suspend or extend the Demonstration Period for ftuiher technical evaluation of the effects 

of a process optimization or Control Technology or permanently modify the manner of 

operation of the Control Technology to mitigate the effects. U.S. EPA's decision in 

response to any such Essroc request is subject to the Section XV (Dispute Resolution) 

provisions of this Consent Decree. 

19. During the Demonstration Period, Essroc shall collect the same data as required in 

Paragraph 11 of this Appendix A. The Demonstration Report shall include the data 

collected as required in this Paragraph. 

20. At least every 3 months during the Demonstration Period, Essroc shall submit a periodic 

report to U.S. EPA. Each periodic report shall include the data collected during the 

Demonstration Period to that point, and shall include all of the infomlation in paragraph 
11 of this Exhibit. In addition, the periodic report shall include aU 30-day rolling average 

emission rates calculated from the beginning ofthe Demonstration Period until the 

preparation of the periodic report. The report data shall be submitted electronically in an 

Excel spreadsheet or a format compatible and able to be manipulated by Excel. 

21. Within 60 Days following completion of the Demonstration Period for each Control 

Technology. Essroc shall submit a Demonstration Report to U.S. EPA, based upon and 

including all of the data collected during the Demonstration Period that identifies 

proposed 30-Day Rolling Average Emission Limits for the appropriate pollutant (NOx 

andlor S02). Each 30-Day RoIling Average Emission Limit for NOx and 802 shall be 

based upon an analysis of CEMS data and clinker production data collected during the 

Demonstration Period, while the process and Control Technology parameters were 

optimized in determining the proposed final Emission Limit(s) achievable for the 

Demonstration Kiln. Total pounds of an affected pollutant emitted during an individual 

Operating Day will be calculated from collected CEMS data for that Day. Hours or Days 

when there is no Kiln Operation may be excluded from the analyses. However, Essroc 

shall provide an explanation in the Demonstration Report(s) for any data excluded from 

the analyses. In any event, Essroc shall include all data required to be collected during 

the Demonstration Period in the Final Demonstration Report(s). 

22. Essroc shaH propose 30-Day Rolling Average Emission Limits for NOx and S02 

applicable to each Kiln, in the,Demonstration Report(s) as provided in the preceding 

Paragraph and in accordance with the definition of that term in the Consent Decree. The 

final 30-Day Rolling Average Emission Limits shall be calculated in accordance with the 

following formula: 

X=!l + 1.65<1 where: 

X = 30-Day Rolling Average Emission Limit (lblT on of clinker) 

J.l = arithmetic mean of all of the 30-Day rolling averages 

0' = standard deviation of all of the 30-Day rolling averages, as calculated in the 

following manner: 

23. Notwithstanding Paragraphs 21 and 22 of this Appendix A, in no event shall the fmal 

Emission Limits proposed in the Demonstration Report(s), be greater than as those limits 

specified in Paragraphs 18, 19, and 25 of the Consent Decree. 

24. U.S. EPA shall either approve the proposed fina130-day Rolling Average Emission Limit 

or establish an alternative final 30-day Rolling Average Emission Limit. If U.S. EPA 

establishes an alternative final 30-day Rolling Average Emission Limit, Essroc will begin 

to meet this final30-day Rolling Average Emission Limit within 30 days of receipt of 
u.s. EPA's notice unless it invokes the Section XV (Dispute Resolution) provisions of 

this Consent Decree ,vithin that time by sending a Written Notice of Dispute in 

accordance with Section XIX (Notice). If Essroc invokes Dispute Resolution, it shall 

follow the procedures set forth in Paragraph 74 (InfolTI1al Dispute Resolution for 

Emission Limit Setting Process) to hire an independent contractor to review and make a 

non-binding recommendation regarding the appropriate final Emission Limit. During 

any dispute resolution process, Essroc shall comply mth the proposed final 30-day 

Rolling Average Emission Limit as proposed by Essroc in Paragraph 22 of this 

Appendix. 
CONSENT DECREE APPENDIX B 

United States of America et al v. Essroc Cement Corp adv. 

SCR Pilot Study and Full-Scale Demonstration 

I. Scope and Applicability 

1. Essroc shall comply with this Appendix B to prepare the SCR Pilot Report and submit 

the Demonstration Report as required by Paragraph 19 of the Consent Decree. 

2. Information required to be submitted under this Appendix B may include information that 

Essroc may consider to be proprietary. In such a situation, Essroc may submit the information to 

U.S. EPA and the Affected State under a claim of "Confidential Business Information," subject 

to the provisions of 40 C.F.R. Part 2, and shall comply with all with all procedures and 

requirements of 40 C.F .R. Part 2 in so doing. 

II. Pilot Study 

3. Essroc shall design, or contract with a Contractor to design a pilot-scale in situ Selective 

Catalytic Reduction (SCR) system in order to evaluate the system performance at the Logansport 

cement kilns. The system shall be designed to provide Essroc with the information necessary to 

evaluate the SCR for future use at the Logansport facility. The system will be designed to reduce 

NOx emissions as much as possible but at a minimum, the SCR will be designed to reduce NOx 

emissions by 80%. The system may also be designed to employ features shown to be successful 

in other industries, such as a sacrificial catalyst layer to address poisons, on-line soot blowing to 

address pluggage and deactivation, and temperature monitors, as well as other features deemed 

appropriate by the system designer to ensure successful operation of the SCR. 

4. Essroc shall route a slipstream of off gas from the Logansport Kiln 1 to a pilot-scale SCR 

system. Essroc will operate this SCR for a period of at least 4 months ("the test period") and 

shall attempt to continuously reduce emissions of NO x to the greatest extent feasible while 

controlling ammonia slip to a level below 10 ppm. 

5. At the conclusion of the test period, Essroc shall evaluate the system performance based 

on the below criteria in this Paragraph 5 of this Appendix B. 

• Emission reductions of NO x 

• Observed deactivation or poisoning of catalyst in the SCR 

• Ammonia usage 

• Adverse environmental consequences related to the use of the SCR 

• Anticipated and observed lifetime of the catalyst 

• Anticipated or observed space velocity of the system 

III. Report 
6. By July 31, 2013. Essroc shall submit a report summarizing the results of the evaluation 

in which it shall determine whether application of SCR was successful based on the criteria listed 

in Paragraph 5 of this Appendix. ("Pilot Study report") The evaluation report shall be subject to 

the review and approval by U.S. EPA 

7. If, based on Essroc' sevaluation report and U .S. EPA's concurrence, the parties determine 

that the system was successful, Essroc shall install and continuously operate full-scale SCR 

systems on both Logansport Kiln 1 and Logansport Kiln 2 subject to the requirements of 

Paragraph 19 of the Consent Decree. 

8. If, based on Essroc's evaluation report and U.S. EPA's concurrence, the parties determine 

that the system was not successful. then Essroc will comply with Paragraph 19 of the Consent 

Decree and shall begin the process of designing and installing SNCR systems on both 

Logansport Kilns 1 and 2. 

IV. SCR Demonstration Period 

9. The SCR Demonstration Period shall commence no later than the date specified in 

Paragraph 19 of the Consent Decree. During the SCR Demonstration Period. Essroc shall 

operate each SCR for a period of at least 140 Operating Days consistent with the operating 

parameters determined during the Pilot Study. Essroc shall also operate the SCR to reduce 

emissions as much as practical without causing non-compliance with any other emission limit or 

impairment of product quality. 

10. If evidence arises during the SCR Demonstration Period that product quality. kiln system 

reliability. or compliance with an emission limitation or standard is impaired by reason of longer 

term operation of the SCR, then Essroc may, upon notice to, and approval by, U.S. EPA, 

temporarily modify the manner of operation of the Facility process or the SCR to mitigate the 

effects. U.S. EPA's decision in response to any such Essroc request is subject to the Dispute 

Resolution provisions of this Consent Decree. 

11. During the SCR Demonstration Period. Essroc shall collect the same data as required in 

Paragraph 11 of Appendix A. The SCR Demonstration Report shall include the data collected as 

required in Paragraph 12 of this Appendix B. 

12. According to the requirements of Paragraph 19 of the Consent Decree, Essroc shall 

submit a Demonstration Report to U .S. EPA, based upon and including all of the data collected 

during the SCR Demonstration Period that identifies proposed 3D-Day Rolling Average 

Emission Limit for NOx. Each 30-Day Rolling Average Emission Limit shall be based upon an 

analysis of CEMS data and clinker production data collected during the SCR Demonstration 

Period. Essroc shall provide an explanation in the Demonstration Report(s) for any data 

excluded from the analyses. In any event, Essroc shall include all data required to be collected 

during the Demonstration Period in the Demonstration Report. 

13. Essroc shall propose a 3D-Day Rolling Average Emission Limit for NOx in the 

Demonstration Report as provided in the preceding Paragraph 12 of this Appendix B and in 
accordance with the definition of that tenn in the Consent Decree. The final 30~Day Rolling 

Average Emission Limits shall be calculated in accordance with the following formula: 

X= ~t + 1.650' where: 

x = 30-Day Rolling Average Emission Limit (lb/Ton of clinker) 

f..l = arithmetic mean of all of the 30-Day rolling averages 

(j = standard deviation of all of the 30-Day rolling averages, as calculated in the 

foHowing manner: 

14. U.S. EPA shall either approve the proposed final 30-day Rolling Average Emission Limit 

or establish an alternative final30-day Rolling Average Emission Limit. If U.S. EPA establishes 

an alternative Fina130-day Rolling Average Emission Limit, Essroc will begin to meet this final 

30-day Rolling Average Emission Limit within 30 days of receipt of U.S. EPA~s notice unless it 

invokes the Section XV (Dispute Resolution) provisions of this Consent Decree within that time 

by sending a Written Notice of Dispute in accordance with Section XIX (Notice). IfEssroc 

invokes Dispute Resolution, it shaH follow the procedures set forth in Paragraph 74 (Informal 

Dispute Resolution for Emission Limit Setting Process) to hire an independent contractor to 

review and make a non":binding recommendation regarding the appropriate final Emission Limit. 

During any dispute resolution process, Essroc shall comply with the proposed final30-day 

Rolling Average Emission Limit as proposed by Essroc in Paragraph 13 of this Appendix. 
CONSENT DECREE APPENDIX C 

United States of America et al v. Essroc Cement Corp adv. 

Environmental Mitigation Projects 

In compliance with and in addition to the requirements in Section V of this Consent 

Decree (Environmental Mitigation Projects), Essroc shall comply with the requirements of this 

Appendix to ensure that the benefits for the federally directed Environmental Mitigation 

Projects below are achieved. 

Clean Diesel Replacement Projects 

1. Essroc shall spend $745,000 to implement the following schedule to replace the 

identified in-service diesel engines with diesel engines that have emission control equipment 

further described in this Section A of this Appendix C, designed to reduce emissions of NO x, 

particulates andlor ozone precursors (the "Projects" or "Project"): 

a) By December 31,2012, at the Speed plant, Essroc shall replace the currently 

unregulated Tier 0 engine in Quarry Truck, Model CAT 773 B #3, Serial Number 63W1386 with 

a new replacement engine in accordance with Tier 1 engine standards at 40 CFR Part 89, at a 

cost of$150,000; 

b) By December 31, 2012, at the Nazareth plant, Essroc shall replace the currently 

unregulated Tier 0 engine in Loader Model CAT 988F, Serial Number 2ZROlO15 with a new 

replacement engine in accordance with Tier 2 engine standards at 40 CFR Part 89, at a cost of 

$149,000; 

c) By December 31,2013, at Martinsburg, Essroc shall replace the currently 

unregulated Tier ° engine in Quarry Truck, Model CAT 777 C, Serial Number 49XJ545 with a 

new replacement engine in accordance with Tier 2 engine standards at 40 CFR Part 89, at a cost 

of $270,000; 

d) By December 31,2013, at Martinsburg, Essroc shall replace the current Tier 0 

engine in Quarry Loader, Model CAT 992 D, Serial Number 7MJ00734 with a new replacement 

engine in accordance with Tier 2 engine standards at 40 CFR Part 89, at a cost of$176,OOO. 

2. Essroc shall provide a mechanism by which each replaced engine in Section A 

above is properly disposed of, which must include destruction of the engine block. 

3. For any third party with whom Essroc might contract to carry out any of the Projects, 

Essroc shall establish minimwn standards that include prior experience in performing 

replacements/repowers. 

4. Nothing in this Consent Decree shall be interpreted to prohibit Essroc from completing any 

of the Projects ahead of schedule. 
5. In accordance with the requirements of Paragraph 15 of the Consent Decree, within 60 

days following the completion of each Project, Essroc shall submit to U.S. EPA for approval a 

report that documents: 

a) The date the Project was completed; 

b) The results of implementation of the Project, including the estimated emission 

reductions or other environmental benefits achieved; and 

c) The Project Dollars incurred by Essroc in implementing the Project.