case 207-cv-001 34-WCL-APR document 24 filed 07/23/2007 page of 71

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

UNITED STATES OF AMERICA

Plaintiff

THE STATE OF INDIANA THE

CITY OF HAMMOND THE STATE OF

LOUISIANA through THE DEPARTMENT

OF ENVIRONMENTAL QUALITY and

THE PEOPLE OF THE STATE OF Civil Action No 207-cv-134 WCL CALIFORNIA by and through the

BAY AREA AIR QUALITY MANAGEMENT

CONSENT DECREE DISTRICT

Plaintiff -Intervenors

RHODIA INC

Defendant
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TABLE OF CONTENTS

Page

JURISDICTION AND VENUE

II APPLICABILITY4

III DEFINITIONS

IV CIVIL PENALTY11

COMPLIANCE REQUIREMENTS 13

VI PERMITS 24

VII REPORTING REQUIREMENTS 29

VIII STIPULLTED PENALTIES 32

IX FORCE MAJEURE39

DISPUTE RESOLUTION45

XI INFORMATION COLLECTION AND RETENTION 48

XII EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS 51

XIII COSTS 54

XIV NOTICES 54

XV EFFECTIVE DATE 57

XVI RETENTION OF JURISDICTION 57

XVII MODIFICATION 58

XVIII TERMINATION 58

XIX PUBLIC PARTICIPATION 60

XX SIGNATORIES/SERVICE 61

XXI INTEGRATION 62

XXII FINAL JUDGMENT 62

XXIII APPENDICES 63

WHEREAS Plaintiff United States of America on behalf

of the United States Environmental Protection Agency EPA

has filed complaint concurrently with the lodging of this

Consent Decree alleging that Defendant Rhodia Inc Rhodia

or Defendant at one or all of its sulfuric acid plants in
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Baytown and Houston Texas Baton Rouge Louisiana

Dominguez and Martinez California and Hammond Indiana

has violated

Prevention of Significant Deterioration

Requirements found at Part of Subchapter of the Clean

Air Act the Act 42 U.S.C 7475 and the regulations

promulgated thereunder at 40 C.F.R Section 52.21 and Plan

Requirements for Non-Attainment Areas at Part of

Subchapter of the Act 42 U.S.C 7502-7503 and the

regulations promulgated thereunder at 40 C.F.R 51.165 40

C.F.R Part 51 Appendix and 40 C.F.R 52.24

collectively PSD/NSR Requirements

New Source Performance Standards NSPS found at

40 C.F.R Part 60 Subparts and promulgated under

Section 111 of the Act 42 U.S.C 7411 for sulfuric acid

plants collectively NSPS Requirements

Title operating permit requirements found at

Sections 501 to 507 of the Act 42 U.S.C 7661-7661f and

regulations promulgated thereunder at 40 C.F.R Parts 70 and

71 collectively Title Requirements and

the federally-enforceable State Implementation

Plans SIPs and other state rules developed by the states

of California Indiana Louisiana and Texas which

incorporate or implement the above requirements and which

establish federally enforceable permitting programs for
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construction and operation of new and modified sources

collectively SIP Requirements

WHEREAS the State of Indiana the State of Louisiana

and the Bay Area Air Quality Management District in

California have alleged violations of their respective

applicable SIP provisions and other state and local rules

regulations and permits incorporating and/or implementing

the foregoing federal requirements

WHEREAS the Complaint against Rhodia alleges that

Rhodia constructed reconstructed or modified its sulfuric

acid plants without obtaining the proper permits installing

the required control technology or complying with emission

limits monitoring record-keeping and reporting

requirements of the Act

WHEREAS Rhodia has agreed to install controls that

will achieve Best Available Control Technology BACT

equivalent emission levels at its sulfuric acid plants and

to implement best work practices at its sulfuric acid

plants

WHEREAS Rhodia does not admit any liability to the

United States or any of the States arising out of the acts

or omissions alleged in the Complaint and this Consent

Decree resolves all allegations stated in the United

States and State Parties Complaints

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

has been negotiated by the Parties in good faith will avoid

litigation among 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 below and with the

consent of the Parties IT IS HEREBY ADJUDGED ORDERED AND

DECREED as follows

JURISDICTION AND VENUE

This Court has jurisdiction over the subject

matter of this action pursuant to 28 U.S.C 1331 1345

and 1355 and Section 113b of the Act 42 U.S.C 7413

and over the Parties Venue lies in this District

pursuant to the Act Section 113b 42 U.S.C 7413b and

28 U.S.C 1391b and and 1395a because some of

the violations alleged in the Complaint are alleged to have

occurred in and Defendant conducts business in this

judicial district For purposes of this Decree or any

action to enforce this Decree Defendant consents to the

Courts jurisdiction over this Decree or such action and

over Defendant and consents to venue in this judicial

district

For purposes of this Consent Decree Defendant

agrees that the Complaint and the State Parties Complaints
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in Intervention state claims upon which relief may be

granted pursuant to Sections 111 165 173 and 502 of the

Act 42 U.S.C 7411 7475 7503 7661a

Notice of the commencement of this action has been

given to the States of Indiana Louisiana and Texas the

Bay Area Air Quality Management District and the South

Coast Air Quality Management District as required by

Section 113 of the Act 42 U.S.C 7413

II APPLICABILITY

The obligations of this Consent Decree apply to

and are binding upon the United States and the State

Parties and upon Defendant and its officers employees

agents subsidiaries successors assigns or other entities

or persons otherwise bound by law

No transfer of ownership or operation of any of

the Facilities whether in compliance with the procedures of

this Paragraph or otherwise shall relieve Defendant of its

obligation to ensure that the terms of the Decree are

implemented At least 30 days prior to such transfer

Defendant shall provide copy of this Consent Decree to the

proposed transferee and shall simultaneously provide written

notice of the prospective transfer to the EPA Region and the

relevant State Party the United States Attorney for the

Northern District of Indiana Hammond Division and the

United States Department of Justice in accordance with
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Section XIV of this Decree Notices Any attempt to

transfer ownership or operation of sulfuric acid plant

without complying with this Paragraph constitutes

violation of this Decree

In any action to enforce this Consent Decree

Defendant shall not raise as defense the failure by any of

its officers directors employees agents or contractors

to take any actions necessary to comply with the provisions

of this Consent Decree provided however that nothing in

this Paragraph limits the operation of the Force Majeure

provision Section IX

III DEFINITIONS

Terms used in this Consent Decree that are defined

in the Act or in federal and state regulations promulgated

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 terms set forth below are used in

this Consent Decree the following definitions shall apply

Acid mist shall mean the pollutant sulfuric

acid mist

BACT shall mean Best Available Control

Technology as defined at 40 C.F.R 52.21b 12

Baytown shall mean Rhodias sulfuric acid

plant located at 3439 Park Street Baytown Texas 77520

Baton Rouge and shall mean Rhodias
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two sulfuric acid plants located at 1275 Airline Highway

Baton Rouge Louisiana 70805

CEMS or Continuous Emission Monitoring

System shall mean equipment that continuously measures and

records the concentration and/or emission rate of

pollutant in the units specified by the emission limit

concerned

Complaint shall mean the complaint filed by

the United States and the Complaints in Intervention filed

by the State Parties

Consent Decree or Decree shall mean this

Decree and all appendices attached hereto listed in Section

XXIII but in the event of any conflict between the text of

this Decree and any Appendix the text of this Decree shall

control

Day shall mean calendar day In

computing any period of time under this Consent Decree

where the last day would fall on Saturday Sunday or

federal or State holiday the period shall run until the

close of business of the next business day

Defendant shall mean Rhodia Inc

Dominguez shall mean Rhodias sulfuric acid

plant located at 20720 Wilmington Avenue Carson

California 90810

Effective Date with respect to any emission
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limit required by this Consent Decree shall mean the date

beginning upon which Defendant is required to comply with

such emission limit With respect to the Consent Decree as

whole effective date shall have the meaning given in

Paragraph 74

EPA shall mean the United States

Environmental Protection Agency and any of its successor

departments or agencies

Facilities shall mean Rhodias Baytown

Baton Rouge and Dominguez Hammond Houston and

and Martinez sulfuric acid plants

Hammond shall mean Rhodias sulfuric acid

plant located at 2000 Michigan Street Hammond Indiana

46320

Houston and shall mean Rhodias two

sulfuric acid plants located at 8615 Manchester Street

Houston Texas 77012

Long-Term Limit shall mean sulfur dioxide

SO2 emission limit for sulfuric acid plant expressed as

pounds per ton of 100% sulfuric acid produced lbs/ton

averaged over all Operating Hours in rolling 365-day

period

Malfunction shall mean consistent with 40

C.F.R 60.2 any sudden infrequent and not reasonably

preventable failure of air pollution control equipment
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process equipment or process to operate in normal or

usual manner but shall not include failures that are caused

in part by poor maintenance or careless operation

Martinez shall mean Rhodias sulfuric acid

plant located at 100 Mococo Road Martinez California

94553

100% sulfuric acid produced shall mean the

stoichiometric quantity of sulfuric acid that would be

produced at sulfuric acid plant if all sulfur trioxide

503 exiting the converter were used to produce anhydrous

sulfuric acid For purposes of this definition scrubber

byproduct shall be considered to be included in 100%

sulfuric acid produced

Operating Hours shall mean periods during

which sulfur or sulfur-bearing compounds excluding

conventional fossil fuels such as natural gas or fuel oils

are being fed to the furnace

Paragraph shall mean portion of this

Decree identified by an Arabic numeral

Parties shall mean the United States the

Bay Area Air Quality Management District the States of

Indiana and Louisiana and Defendant

Section shall mean portion of this Decree

identified by roman numeral

Short-Term Limit shall mean the SO2
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emission limit for each sulfuric acid plant expressed as

pounds per ton of 100% sulfuric acid produced lbs/ton

averaged over each rolling 3-hour period Except for

periods of Startup Shutdown and Malfunction the Short-Term

Limits established under this Consent Decree shall apply at

all times

Shutdown shall mean the cessation of

operation of sulfuric acid plant for any reason Shutdown

begins at the time sulfur or sulfur-bearing feeds excluding

conventional fossil fuels such as natural gas or fuel oils

to the furnace ceases

SO2 shall mean the pollutant sulfur

dioxide

aa Startup shall mean the 24-hour period at

any sulfuric acid plant beginning when the feed of sulfur or

sulfur-bearing materials excluding conventional fossil

fuels such as natural gas or fuel oils to the furnace

commences after main gas blower shutdown

bb State Parties shall mean Indiana

Louisiana and the Bay Area Air Quality Management District

in California

cc States shall mean California Indiana

Louisiana and Texas

dd Sulfuric acid plant shall mean process

unit engaged in the production of sulfuric acid and related
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products using the contact process

ee Ton or tons shall mean short ton or tons

ff United States shall mean the United States

of America acting on behalf of EPA

IV CIVIL PENALTY

Defendant shall pay $2000000 two million

dollars as civil penalty together with interest accruing

from the date on which the Consent Decree is entered with

the Court at the rate specified in 28 U.S.C 1961

Within 30 days after the effective date of this Consent

Decree payment of 50% of the civil penalty $1000000

shall be paid to the United States by FedWire Electronic

Funds Transfer EFT to the U.S Department of Justice in

accordance with instructions to be provided to Defendant

following lodging of the Consent Decree by the Financial

Litigation Unit of the U.S Attorneys Office for the

Northern District of Indiana Hammond Division At the time

of payment Defendant shall simultaneously send written

notice of payment and copy of any transmittal

documentation which should reference DOJ case number 90-5-

2-1-08500 and the civil action number of this case to the

United States in accordance with Section XIV of this Decree

Notices

No amount of the civil penalty to be paid by
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Defendant shall be used to reduce its federal or State tax

obligations

10 Within 30 days after the effective date of this

Consent Decree Defendant shall pay the balance of the civil

penalty $1000000 to the State Parties as follows

$333333.50 to the State of Louisiana

Payment of the civil penalties and of any stipulated

penalties owed to the State of Louisiana shall be made by

certified check made payable to the Louisiana Department of

Environmental Quality and sent to Darryl Serio Fiscal

Director Office of Management and Finance LDEQ P.O Box

4303 Baton Rouge Louisiana 70821-4303

$66666.50 to the State of Indiana Civil

and stipulated penalties owed to the State of Indiana are

payable by check to the Environmental Management Special

Fund Checks shall include the Case Number 2006-15770-A and

shall be mailed to Cashier Mail Code 50-bC Indiana

Department of Environmental Management 100 Senate

Avenue Indianapolis IN 46204-2251 Any future civil and

stipulated penalties owed by Rhodia to the State of Indiana

shall be paid twenty percent 20% to the State of Indiana

and eighty percent 80% to the City of Hammond

$266666.50 to the City of Hammond Civil

and stipulated penalties owed to the City of Hammond are

payable by check to the Hammond City Controller Checks
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shall include the Case Number of this Action and shall be

mailed to Hammond Department of Environmental Management

5925 Calumet Avenue Room 304 Hammond IN 46320 Any future

civil and stipulated penalties owed by Rhodia to the State

of Indiana shall be paid twenty percent 20% to the State

of Indiana and eighty percent 80% to the City of Hammond

and

$333333.50 to the Bay Area Air Quality

Management District Payment of the civil penalties and of

any stipulated penalties owed to the Bay Area Air Quality

Management District shall be made by check made payable to

the Bay Area Air Quality Management District and sent to Bay

Area Air Quality Management District Office of District

Counsel Brian Bunger Esq District Counsel 939 Ellis

Street San Francisco California 94109

COMPLIANCE REQUIREMENTS

11 Emission Limits

Hammond By the Effective Date specified in

Paragraph ll.i below the Hammond sulfuric acid plant

shall meet the following SO2 emission limits

Long-Term Limit of 2.50 lbs/ton

Defendant shall commence monitoring as of the Effective

Date Defendant shall have until 365 days after the

Effective Date to demonstrate compliance with this Long-Term

Limit
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ii Short-Term Limit of 3.50 lbs/ton

Martinez By the Effective Date specified in

Paragraph ll.i below the Martinez sulfuric acid plant

shall meet the following SO2 emission limits

Long-Term Limit of 2.20 lbs/ton

Defendant shall commence monitoring as of the Effective

Date Defendant shall have until 365 days from the

Effective Date to demonstrate compliance with this Long-Term

Limit

ii Short-Term Limit of 3.00 lbs/ton

Dominguez By the Effective Date specified in

Paragraph 11.1 below the Dominguez sulfuric acid plant

shall meet the following SO2 emission limits

Comply with the applicable annual SO2

allocation as determined by the South Coast Air Quality

Management Districts Regional Clean Air Incentives Market

RECLAIM as defined in Regulation XX of the South Coast

Air Quality Management District Rules

ii Short-Term Limit of 3.50 lbs/ton

Houston By the Effective Date specified

in Paragraph ll.i below the Houston sulfuric acid

plant shall meet the following SO2 emission limits

Long-Term Limit of 1.70 lbs/ton

Defendant shall commence monitoring as of the Effective

Date Defendant shall have until 365 days from the
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Effective Date to demonstrate compliance with this Long-Term

Limit

ii Short-Term Limit of 3.00 lbs/ton

Baytown Facility By the Effective Date

specified in Paragraph l1.i the Baytown sulfuric acid

plant shall meet the following 502 emission limits

Long-Term Limit of 2.20 lbs/ton

Defendant shall commence monitoring as of the Effective

Date Defendant shall have until 365 days from the

Effective Date to demonstrate compliance with this Long-Term

Limit

ii Short-Term Limit of 3.00 lbs/ton

Baton Rouge By the Effective Date

specified in Paragraph ll.i the Baton Rouge sulfuric

acid plant shall meet the following SO2 emission limits

Long-Term Limit of 2.20 lbs/ton

Defendant shall commence monitoring as of the Effective

Date Defendant shall have until 365 days from the

Effective Date to demonstrate compliance with this Long-Term

Limit

ii Short-Term Limit of 3.00 lbs/ton

Baton Rouge Beginning on the Effective

Date specified in Paragraph 11.i the Baton Rouge

sulfuric acid plant shall meet the following SO2 emission

limits
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Long-Term Limit of 1.90 lbs/ton

Defendant shall commence monitoring as of the Effective

Date Defendant shall have until 365 days from the

Effective Date to demonstrate compliance with this Long-Term

Limit

ii Short-Term Limit of 3.00 lbs/ton

Houston Beginning on the Effective Date

specified in Paragraph ll.i the Houston sulfuric acid

plant shall meet the following SO2 emission limits

Long-Term Limit of 1.80 lbs/ton

Defendant shall commence monitoring as of the Effective

Date Defendant shall have until 365 days from the

Effective Date to demonstrate compliance with this Long-Term

Limit

ii Short-Term Limit of 3.00 lbs/ton

Effective Dates for Emission Limits The

Effective Dates for each emission limit specified in

Paragraph ll.a through ll.h are as follows

Hammond July 2007

ii Martinez July 2007

iii Dominguez July 2007

iv Baytown January 2009

Houston July 2009

vi Baton Rouge January 2011

vii Baton Rouge May 2012
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viii Houston April 2014

NSPS Applicability Not later than the

Effective Date for achieving the applicable SO2 emission

limits specified in Paragraphs l1.a through ll.i each

sulfuric acid plant shall be considered an affected facility

for purposes of the New Source Performance Standard NSPS

40 C.F.R Part 60 Subpart Not later than the applicable

Effective Date each sulfuric acid plant covered by this

Consent Decree shall comply with all applicable requirements

for affected facilities under the NSPS 40 C.F.R Part 60

Subparts and or the Consent Decree if more stringent

Notices and other obligations set forth in this Consent

Decree shall be deemed to satisfy all applicable initial

notification and compliance demonstration requirements of

NSPS Subparts and

Acid Mist Limits Not later than the

effective date of this Consent Decree each of the sulfuric

acid plants shall comply with the NSPS Subpart sulfuric

acid mist emission limitation of 0.15 lbs/ton of 100%

sulfuric acid produced as set forth at 40 C.F.R 60.83

Compliance with this limit is to be demonstrated using

the performance test required by paragraph 14 of this

Consent Decree

Best Practices Consistent with 40 C.F.R

60.11d at all times including periods of Startup
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Shutdown and Malfunction Defendant shall to the extent

practicable maintain and operate each of its sulfuric acid

plants including associated air pollution control

equipment in manner consistent with good air pollution

control practice for minimizing emissions

Scrubber Design All new scrubbers installed

pursuant to this Consent Decree and used for SO2 control at

any of the sulfuric acid plants shall be designed to achieve

at least 95% removal efficiency except during periods of

Startup Shutdown and Malfunction

12 Interim Emission Limits Upon the effective date

of this Consent Decree and until the Effective Date of the

SO2 emission limits specified in Paragraph ll.d 11.f

ll.g ll.h for the Houston Baton Rouge Baton

Rouge and Houston sulfuric acid plants Defendant

shall comply with an interim SO2 emission limit at each of

these sulfuric acid plants The interim SO2 emission limit

for each of these sulfuric acid plants shall be the permit

limit in place at the time of the effective date of this

Consent Decree or the currently applicable State

Implementation Plan emission limit for SO2 whichever is

more stringent

13 Continuous Emissions Monitoring System

At each of its sulfuric acid plants no later

than the Effective Date of each SO2 emission limit
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established under Paragraph ll.a through ll.i Defendant

shall install and make operational SO2 continuous

emissions monitoring system CEMS Except during CEMS

breakdowns repairs calibration checks and zero span

adjustments the CEMS shall be operated during all sulfuric

acid plant Operating Hours and shall be used at each

sulfuric acid plant to demonstrate compliance with the SO2

emission limits established in Paragraph 11 of this Consent

Decree The SO2 CEMS shall meet the following requirements

The SO2 CEMS shall monitor and record

the 3-hour arithmetic average not weighted by production

volume SO2 emission rate from each sulfuric acid plant in

units of lbs per ton of 100% acid produced

ii Except for the Dominguez facility the

SO2 CEMS shall monitor and record the SO2 emission rate from

each sulfuric acid plant averaged arithmetic average not

weighted by production volume over all Operating Hours in

each rolling 365-day period in units of lbs per ton of 100%

acid produced and

iii The CEMS shall be installed certified

calibrated maintained and operated in accordance with the

applicable requirements of 40 C.F.R 60.11 60.13 Part

60 Appendix Performance Specification and Part 60

Appendix Procedure except as otherwise provided in this

Consent Decree or as provided in the approved Alternative
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Monitoring Plans described in Paragraph l3.b below If an

02 monitor is necessary it shall meet 40 C.F.R Part 60

Appendix Performance Specification

Defendant has submitted an Alternative

Monitoring Plan for each of its Facilities that describes

how Defendant proposes to implement the monitoring

requirements of this Paragraph including the methodology

Defendant proposes to use to demonstrate compliance in the

event of CEMS downtime lasting longer than 24 hours

Monitoring methods specified in this Consent Decree have

been approved as appropriate alternative monitoring methods

for purposes of NSPSI per 40 C.F.R

60.13i The Alternative Monitoring Plans are

included as Appendix These plans supersede the

corresponding SO2 monitoring requirements of the

NSPS and the applicable 502 monitoring

requirements of the State Parties Defendant

shall implement the Alternative Monitoring Plans

in the States of the State Parties upon

installation of the SO2 CEMS at each of the

sulfuric acid plants In the States that are not

State Parties as well as in the South Coast Air

Quality Management District Defendant shall

either reach agreement with those States to follow

the Alternative Monitoring Plans in lieu of those
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States SO2 monitoring requirements or else

conduct SO2 monitoring in compliance with those

States laws and regulations in lieu of

compliance with the Alternative Monitoring Plans

Defendant shall take all steps necessary to

avoid CEMS breakdowns and minimize CEMS downtime This

shall include but is not limited to operating and

maintaining the CEMS in accordance with best practices and

maintaining an on-site inventory of spare parts or other

supplies necessary to make rapid repairs of the equipment

In the event of CEMS downtime lasting longer

than 24 hours Defendant shall demonstrate compliance with

the applicable emission limits in Paragraph 11 according to

the procedures specified in the Alternative Monitoring Plans

referenced in Paragraph 13.b above

14 Performance Testing

By no later than 120 days after the effective

date of this Consent Decree Defendant shall conduct an

initial performance test measuring the emission rate of

sulfuric acid mist from each of its sulfuric acid plants in

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

60 Appendix Reference Method or such method that is

approved by EPA This performance test shall be used to

demonstrate compliance with the acid mist emission limit

established in Paragraph ll.k and may serve as the NSPS
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performance test required under 40 C.F.R 60.8 Defendant

shall take all steps necessary to assure accurate

measurements of 100% sulfuric acid production during each

test run

By no later than 120 days after the Effective

Date of any SO2 emission limit established under Paragraph

11 of this Consent Decree Defendant shall conduct SO2

performance test on the applicable sulfuric acid plant in

accordance with the applicable requirements of 40 C.F.R

Part 60 Appendix Reference Method and Part 60 Appendix

Performance Specification This test must consist of

at least reference method test runs and may serve as the

CEMS relative accuracy test required under Performance

Specification If applicable this test may also serve as

the NSPS performance test required under 40 C.F.R 60.8

Defendant shall take all steps necessary to assure accurate

measurements of 100% sulfuric acid production during each

test run

Defendant shall notify the EPA Region and the

State Party in which the sulfuric acid plant is located of

its intent to conduct each performance test required by this

Consent Decree no later than 60 days before the performance

test is conducted This notification must include the

scheduled date of the test an emissions test protocol

description of the planned operating rate and operating
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conditions and the procedures that will be used to measure

100% sulfuric acid production If EPA or the State Party

requires any adjustment of the testing protocol or operating

conditions EPA or the State Party shall make request for

such adjustment no later than 30 days before the scheduled

date of the performance test Defendant shall make such

adjustments and conduct the performance test in conformity

with EPAs and the States requirements

Within the timeframe required by state and/or

local provisions but in any event not to exceed 45 days

after each performance test conducted in accordance with

this Consent Decree Defendant shall submit report

documenting the results of the performance test to the

applicable EPA Region and State Party

VI PERMITS

15 Where any compliance obligation including

installation or construction of pollution control technology

or equipment under this Consent Decree requires Defendant

to obtain federal state or local permit or approval

Defendant shall submit timely and complete applications and

take all other actions necessary to obtain all such permits

or approvals Defendant may seek relief under the

provisions of Section IX of this Consent Decree Force

Majeure for any delay in the performance of any such

obligation resulting from failure to obtain or delay in
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obtaining any permit or approval required to fulfill such

obligation including but not limited to any necessary

air water and hazardous waste construction and operating

permits if Defendant has submitted timely and complete

applications and has taken all other actions necessary to

obtain all such permits or approvals including without

limitation submitting to the federal state and/or local

permitting authority all relevant and available information

requested by such agency after its receipt of the permit

application Any failure by Defendant to submit timely

permit applications shall bar any use of Section IX Force

Majeure of this Consent Decree where force majeure claim

is based on permitting delays The EPA Region and the State

Party in which the sulfuric acid plant is located shall use

best efforts to review expeditiously all permit applications

submitted to meet the requirements of this Consent Decree

16 Future Emission Limits and Standards As soon as

practicable but no later than ninety 90 days after the

relevant Effective Date listed in Paragraph 1l.i Defendant

shall submit administratively complete applications to the

applicable federal state or local agency to incorporate

that emission limit or standard into federally-enforceable

minor or major new source review permits or other permits

that will ensure that the underlying emission limit or

standard survives the termination of this Consent Decree
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 26 of 71

In light of the Title permitting program in the State of

Louisiana Defendant shall submit to LDEQs consolidated

Title permitting program under the time frame specified

by the previous sentence appropriate applications for

revisions to its existing Sulfuric Acid Plant Title permit

to ensure that the emission limits and standards that become

effective after the Entry Date shall survive the termination

of this Consent Decree Following submission of the

complete permit applications or for Baton Rouge and

following submission of appropriate applications for Title

permit revisions Defendant shall cooperate with the

applicable federal state or local agency by promptly

submitting to the applicable agency all available

information that the applicable agency seeks following its

receipt of the permit materials Promptly upon issuance of

such permits or in conjunction with such permitting

Defendant shall file any applications necessary to

incorporate the requirements of those permits into the Title

permit for the relevant sulfuric acid plant Nothing in

this Section shall prevent Defendant from filing such

applications for permits or permit revisions prior to the

Effective Date

17 Emission Limits and Standards Prior to

termination of the Consent Decree the following Consent

Decree requirements shall be incorporated into operating
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 27 of 71

permits including Title operating permits under

Paragraph 16 and shall survive termination of the Consent

Decree

The SO2 emission limits established in

Paragraph 11 of this Consent Decree

The acid mist emission limit established in

Paragraph u.k of this Consent Decree

The monitoring requirements established in

Paragraph 13 of this Consent Decree including the

requirement to meet the quality assurance procedures

required by 40 C.F.R Part 60 Appendix or any alternative

procedures specified in relevant alternative monitoring

plans or State requirements as provided in Paragraph 13.b

above

requirement that the SO2 and acid mist

emission limits as defined herein shall not be relaxed and

The applicability of 40 C.F.R Part 60

Subparts and or any alternative procedures specified in

relevant alternative monitoring plans or State requirements

as provided in Paragraph 13.b above to the Facilities

18 Mechanism for Title Incorporation The Parties

agree that the incorporation of the requirements of this

Consent Decree into Title permits shall be in accordance

with state Title rules including applicable

administrative amendment provisions of such rules
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19 Defendant shall provide the EPA Region and the

State in which the sulfuric acid plant is located with

copy of each application for federally enforceable permit

necessary to implement the requirements of this Consent

Decree as well as copy of any permit proposed as result

of such application to allow for timely participation in

any public comment opportunity

20 Emission Credit Generation

Defendant will neither generate nor use any SO2 or acid

mist emission reductions resulting from any projects

required pursuant to this Consent Decree for the purpose of

obtaining netting credits or offsets in any Prevention of

Significant Deterioration PSD major non-attainment

meaning the non-attainment area New Source Review NSR

program within the meaning of Part of Subchapter of the

Act 42 U.S.C 7510-7515 40 C.F.R Part 51 and/or minor

NSR permit or permit proceeding provided however that

notwithstanding any other provision herein nothing in

this Paragraph shall be construed to limit the generation

and use of emissions credits or offsets respecting SO2 or

acid mist emission reductions that are either more stringent

than the emissions limits established under the Consent

Decree or achieved from sources not covered under the

Consent Decree as well as reductions of any other pollutant
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 29 of 71

at any source and this Consent Decree is not intended

to prohibit Defendant or the States in which the Facilities

are located from using emission reductions from the

installation of controls required by this Consent Decree in

determining whether project that includes both the

installation of controls under this Consent Decree and other

construction or modification whether or not such

construction or modification affects the Facilitys

production capacity and which is conducted prior to the

Effective Date for the relevant Facility and is permitted

as single or phased construction project triggers PSD

and/or NSR requirements

VII REPORTING REQUIREMENTS

21 Defendant shall submit the following reports

Within 30 days after the end of each half

calendar year i.e by January 30th July 30th after entry

of this Consent Decree until termination of this Decree

pursuant to Section XVIII Defendant shall submit semi

annual report for the preceding six months that shall

include the status of any construction or compliance

measures necessary to meet the emission limits set forth in

Paragraphs ll.a through ll.h problems encountered or

anticipated together with implemented or proposed

solutions status of permit applications operation and

maintenance work and any reports to State agencies The
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first semi-annual report following entry of the Consent

Decree shall be submitted by the later of the end of the

month following the end of the first full half calendar year

after the date of entry or within 90 days of entry of

the Consent Decree

If Defendant violates or has reason to

believe that it may violate any requirement of this Consent

Decree or any applicable permits Defendant shall notify the

United States and the applicable State Party of such

violation and its duration or anticipated likely duration

in writing within 30 days of the day Defendant first

becomes aware of the violation or potential violation with

an explanation of the violations likely cause and of the

remedial steps taken or to be taken to prevent or minimize

such violation If the cause of violation cannot be fully

explained at the time the report is due Defendant shall so

state in the report Defendant shall investigate the cause

of the violation and shall then submit an amendment to the

report including full explanation of the cause of the

violation within 30 days of the day Defendant becomes aware

of the cause of the violation Nothing in this Paragraph or

the following Paragraph relieves Defendant of its obligation

to provide the notice required by Section IX of this Consent

Decree Force Majeure

Whenever any violation of this Consent Decree
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or any applicable permits or any other event affecting

Defendants performance under this Decree or the

performance of its sulfuric acid plant may pose an

immediate threat to the public health or welfare or the

environment Defendant shall notify the applicable EPA

Region and State orally or by electronic or facsimile

transmission as soon as possible but no later than 24 hours

after Defendant first knew of or should have known of the

violation or event This procedure is in addition to the

requirements set forth in the preceding Paragraph

22 All reports shall be submitted to the persons

designated in Section XIV of this Consent Decree Notices

23 Each report submitted by Defendant under this

Section shall be signed by plant manager corporate

official responsible for environmental management and

compliance or corporate official responsible for plant

management of the Defendant and shall include the following

certification

certify under penalty of law that

have examined and am familiar with the

information submitted in this document

and all attachments and that this

document and its attachments were

prepared either by me personally or

under my direction or supervision in

manner designed to ensure that qualified

and knowledgeable personnel properly

gather and present the information

contained therein further certify

based on my personal knowledge or on my

inquiry of those individuals immediately

responsible for obtaining the
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information that the information is

true accurate and complete am aware

that there are significant penalties for

submitting false information including

the possibility of fines and

imprisonment for knowingly and willfully

submitting materially false statement

24 The reporting requirements of this Consent Decree

do not relieve Defendant of any reporting obligations

required by the Act or implementing regulations or by any

other federal state or local law regulation permit or

other requirement

25 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

VIII STIPULATED PENALTIES

26 If Defendant fails to pay the civil penalty

required to be paid under Section IV of this Decree Civil

Penalty when due Defendant shall pay stipulated penalty

of $500 per day for the first 30 days that the payment is

late and $1000 per day for each day thereafter that the

payment is late Late payment of the civil penalty shall be

made in accordance with Section IV Paragraphs through 10

above Each stipulated penalty due under this Paragraph

shall be paid exclusively to the Party to whom Defendant

failed to make timely payment of the civil penalty

27 Stipulated Penalties shall be paid in accordance
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with Section VIII Paragraph 38 below All transmittal

correspondence shall state that any such payment is for late

payment of the civil penalty due under this Decree or for

Stipulated Penalties for late payment as applicable and

shall include the identifying information set forth in

Section IV Paragraphs and 10 above

28 Defendant shall be liable for Stipulated Penalties

to the United States and the State Party in which the

sulfuric acid plant is located for violations of this

Consent Decree as specified below unless excused under

Section IX Force Majeure

29 Emission Limits The following Stipulated

Penalties shall accrue per violation per day after the

relevant Effective Date for each violation of the

requirements identified in Paragraph ll.a through ll.i

ll.k and 12 above

Where the violation is less than in excess

of the applicable emission limit set forth in this Consent

Decree

Penalty Per Violation Per Day Period of Noncompliance

$500 1st through 30th day

$1000 31st day and beyond

Where the violation is equal to or greater

than but less than 10 in excess of the applicable

emission limit set forth in this Consent Decree
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Penalty Per Violation Per Day Period of Noncompliance

siooo 1st through 14th day

$1500 15th day through 30th day

$2000 31st day and beyond

Where the violation is equal to or greater

than 10% in excess of the applicable emission limit set

forth in this Consent Decree

Penalty Per Violation Per Day _______________________

13

Period of Noncompliance

$1500 1st day through 14th day

$2000 15th day through 30th day

$2500 31st day and beyond

CEMS Requirements The following Stipulated

shall accrue per violation per day for each

of the CEMS requirements identified in Paragraph

Penalty Per Violation Per Day Period of Noncompliance

$1500 1st through 14th day

$2000 15th through 30th day

$2500 31st day and beyond

Performance Testing The following Stipulated

shall accrue per violation per day for each

of the performance testing requirements identified

Period of Noncompliance

1st through 14th day

30

Penalties

violation

31 _____________________

penalties

violation

in Paragraph 14

Penalty Per Violation Per Day

$1000
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$1500 15th through 30th day

$2000 31st day and beyond

32 Permitting Requirements The following Stipulated

Penalties shall accrue per violation per day for each

violation of the permitting requirements identified in

Section VI of this Consent Decree

Penalty Per Violation Per Day Period of Noncompliance

$1000 1st through 14th day

$1500 15th through 30th day

$2000 31st day and beyond

33 Reporting Requirements The following Stipulated

Penalties shall accrue per violation per day for each

violation of the reporting and notification requirements of

Section VII of this Consent Decree

Penalty Per Violation Per Day Period of Noncompliance

$150 1st through 14th day

$250 15th through 30th day

$500 31st day and beyond

34 The following Stipulated Penalties shall accrue

per violation per day for Defendants failure to comply with

any requirement of this Consent Decree not specifically

referenced in Paragraphs 26 through 33 above including but

not limited to failing to perform any obligation required

by any work plan or schedule approved under this Decree

within the specified time schedules established by or
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approved under this Decree

Penalty Per Violation Per Day Period of Noncompliance

$150 1st through 14th day

$250 15th through 30th day

$500 31st day and beyond

35 Stipulated Penalties under this Section shall

begin to accrue on the day after performance is due or on

the day 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 of this Consent Decree Defendant shall pay any

Stipulated Penalty within 45 days of receiving the United

States or the State Partys written demand The United

States and/or the State Party in which the sulfuric acid

plant is located may seek Stipulated Penalties under this

Section Any stipulated penalties paid under this Section

shall be paid 50 percent to the United States and 50 percent

to the relevant State Party regardless of which Party made

the demand

36 The United States and/or the State Parties may in

the unreviewable exercise of their discretion reduce or

waive Stipulated Penalties otherwise due that sovereign

under this Consent Decree The determination by one

sovereign not to seek Stipulated Penalties or subsequently
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to waive or reduce the amount it seeks shall not preclude

the other sovereign from seeking the full amount of

Stipulated Penalties owing to that sovereign

37 Stipulated Penalties shall continue to accrue as

provided in Paragraph 35 above during any Dispute

Resolution but need not be paid until the following

If the dispute is resolved by agreement or by

decision of EPA or the State Party that is not appealed to

the Court Defendant shall pay accrued penalties determined

to be owing together with interest at the rate specified

in 28 U.S.C 1961 to the United States and/or the State

Party within 30 days of the effective date of the agreement

or the receipt of EPAs or the State Partys decision or

order

If the dispute is appealed to the Court and

the United States and/or the State Party prevails in whole

or in part Defendant shall pay all accrued penalties

determined by the Court to be owing together with interest

at the rate specified in 28 U.S.C 1961 within 60 days of

receiving the Courts decision or order except as provided

in Subparagraph below

If any Party appeals the District Courts

decision Defendant shall pay all accrued penalties

determined to be owing together with interest at the rate

specified in 28 U.S.C 1961 no later than 30 days after
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the administrative decision or judicial order judgment or

decree resolving the dispute becomes final and not subject

to any further appeal

38 Defendant shall pay Stipulated Penalties owing to

the United States in accordance with Section IV Paragraph

above or by certified or cashiers check in the amount

due payable to the U.S Department of Justice

referencing DOJ No 90-5-2-1-08500 and United States

Attorneys Office file number 2006V00872 and delivered to

the office of the United States Attorney Northern District

of Indiana Hammond Division 5400 Federal Plaza Hammond

Indiana 46320 219 937-5500 Defendant shall pay

Stipulated Penalties owing to the State Parties in

accordance with Section IV Paragraph 10 above

39 No amount of the Stipulated Penalties to be paid

by Defendant shall be used to reduce its federal or state

tax obligations

40 If Defendant fails to pay Stipulated Penalties

according to the terms of this Consent Decree Defendant

shall be liable for interest at the rate specified in 28

U.S.C 1961 accruing as of the date payment became due

41 Subject to the provisions of Section XII of this

Consent Decree Effect of Settlement/Reservation of Rights

the stipulated Penalties provided for in this Consent Decree

shall be in addition to any other rights remedies or
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sanctions available to the United States for Defendants

violation of this Consent Decree or applicable law Where

violation of this Consent Decree is also violation of the

PSD/NSR Requirements the NSPS Requirements the SIP

Requirements and/or the Title Requirements Defendant

shall be allowed credit for any Stipulated Penalties

paid against any statutory penalties imposed for such

violation

IX FORCE MAJEURE

42 force majeure is any event beyond the control

of Defendant its contractors or any entity controlled by

Defendant that delays the performance of any obligation

under this Consent Decree despite Defendants Best Efforts

to fulfill the obligation Best Efforts includes

anticipating any such potential event and addressing the

effects of any such event as it is occurring and

after it has occurred to prevent or minimize any resulting

delay to the greatest extent practicable Force majeure

does not include Defendants financial inability to perform

any obligation under this Consent Decree

43 If any event occurs which causes or may cause

delay or impediment to performance in complying with any

provision of this Consent Decree Defendant shall notify the

United States the applicable EPA Regional office and the

relevant State Party in writing as soon as practicable but
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in any event within fourteen 14 days of the date when

Defendant first knew of the event or should have known of

the event by the exercise of due diligence In this notice

Defendant shall specifically reference this Paragraph 43 of

this Consent Decree and describe the anticipated length of

time the delay may persist the cause or causes of the

delay and the measures taken or to be taken by Defendant to

prevent or minimize the delay and the schedule by which

those measures shall be implemented Defendant shall take

Best Efforts to avoid or minimize such delays The notice

required by this Section shall be effective upon the mailing

of the same by overnight mail or by certified mail return

receipt requested to the applicable EPA Regional Office and

State Party as appropriate as specified in Section XIV

Notice

44 Failure by Defendant to substantially comply with

the notice requirements of Paragraph 43 as specified above

shall render this Section IX Force Majeure voidable by the

United States in consultation with the relevant State

Party as to the specific event for which Defendant has

failed to comply with such notice requirement and if

voided is of no effect as to the particular event involved

45 The United States after consultation with the

relevant State Party shall notify Defendant in writing

regarding the United States position regarding Defendants
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 41 of 71

claim of delay or impediment to performance within thirty

30 days of receipt of the force majeure notice provided

under Paragraph 43

46 If the United States after consultation with the

relevant State Party agrees that the delay or impediment to

performance has been or will be caused by circumstances

beyond the control of the Defendant including any entity

controlled by the Defendant and that Defendant could not

have prevented the delay by the exercise of Best Efforts or

if the delay or impediment to performance is deemed to be

force majeure under Paragraph 49 the appropriate Parties

shall stipulate to an extension of the required deadlines

for all requirements affected by the delay by period

equivalent to the delay actually caused by such

circumstances Such stipulation shall be filed as

material modification to the Consent Decree pursuant to the

modification procedures established by this Consent Decree

in Paragraph 76 Defendant shall not be liable for

stipulated penalties for the period of any such delay

47 If the United States after consultation with the

relevant State Party does not accept Defendants claim of

delay or impediment to performance Defendant must submit

the matter to the Court for resolution to avoid payment of

stipulated penalties by filing petition for determination

with the Court by no later than forty-five 45 days after
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 42 of 71

receipt of the notice provided under Paragraph 45 above

Once Defendant has submitted this matter to the Court the

United States and the relevant State Party will have fortyfive 45 days to file their responses to the petition If

the Court determines that the delay or impediment to

performance has been or will be caused by circumstances

beyond the control of the Defendant including any entity

controlled by Defendant and that the delay could not have

been prevented by Defendant by the exercise of Best Efforts

Defendant shall be excused as to that events and delay

including stipulated penalties for period of time

equivalent to the delay caused by such circumstances

48 Defendant will bear the burden of proving that any

delay of requirements of this Consent Decree was caused

by or will be caused by circumstances beyond its control

including any entity controlled by it and that it could not

have prevented the delay by the exercise of Best Efforts

Defendant shall also bear the burden of proving the duration

and extent of any delays attributable to such

circumstances Any extension of one compliance date based

on particular event may but does not necessarily result

in an extension of subsequent compliance date or dates

49 Unanticipated or increased costs or expenses

associated with the performance of Defendants obligations

under this Consent Decree shall not constitute circumstances
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 43 of 71

beyond its reasonable control or serve as the basis for an

extension of time under this Section IX However the

failure of permitting authority to issue necessary

construction or operating permit in timely fashion is an

event of force majeure where the failure of the permitting

authority to issue the relevant permit is beyond the control

of the Defendant and the Defendant has taken all steps

available to it to obtain the necessary permit For the

Houston Baton Rouge and Baton Rouge plants which

require Resource Conservation and Recovery Act RCRA

permit if RCRA permit modification is necessary for any

construction required by this Consent Decree and the

permitting authority has failed to issue such RCR permit

modification within 18 months of Defendants full and

complete permit application submittal and the failure of

the permitting authority to act is beyond Defendants

control and Defendant has used Best Efforts with respect to

the permit and the construction for which the permit is

required then each additional day when such permit is not

issued beyond the 18 months after Defendants full and

complete permit application submittal shall be considered

day of delay caused by force majeure provided that

Defendants full and complete permit application submittal

was made at least 18 months before the relevant Effective

Date
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 44 of 71

50 Notwithstanding any other provision of this

Consent Decree the Court shall not draw any inferences nor

establish any presumptions adverse to either party as

result of Defendants serving of force majeure notice or

the Parties inability to reach agreement

51 As part of the resolution of any matter submitted

to this Court under this Section IX the appropriate Parties

by agreement or the Court by order may in appropriate

circumstances extend or modify the schedule for completion

of work under the Consent Decree to account for the delay in

the work that occurred as result of any delay or

impediment to performance agreed to by the United States or

approved by this Court Defendant shall be liable for

stipulated penalties for its failure thereafter to complete

the work in accordance with the extended or modified

schedule

DISPUTE RESOLUTION

52 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

Defendants failure to seek resolution of dispute under

this Section shall preclude Defendant from raising any such

issue as defense to an action by the United States to

enforce any obligation of Defendant arising under this
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 45 of 71

Decree

53 The dispute resolution procedure set forth in this

Section shall be available to resolve any and all disputes

arising under this Consent Decree provided that the Party

making such application has made good faith attempt to

resolve the matter with the other Party

54 The dispute resolution procedure required herein

shall be invoked upon the giving of written notice by one of

the Parties to this Consent Decree to another advising the

other appropriate Partyies of dispute pursuant to

Section The notice shall describe the nature of the

dispute and shall state the noticing Partys position with

regard to such dispute The Party or Parties receiving such

notice will acknowledge receipt of the notice and the

Parties shall expeditiously schedule meeting to discuss

the dispute informally not later than fourteen 14 days

from the receipt of such notice

55 Disputes submitted to dispute resolution shall in

the first instance be the subject of informal negotiations

between the Parties Such period of informal negotiations

shall not extend beyond thirty 30 days from the date of

the first meeting between representatives of the Parties

unless it is agreed by the Parties that this period should

be shortened or extended

56 In the event that the Parties are unable to reach
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 46 of 71

agreement during such informal negotiations period the

United States or the relevant State Party as applicable

shall provide Defendant with written summary of its/their

position regarding the dispute The position advanced by

the United States and/or the relevant State Party as

applicable will be considered binding unless within fortyfive 45 days of Defendants receipt of the written

summary Defendant files with the Court petition which

describes the nature of the dispute The United States or

the relevant State Party shall respond to the petition

within forty-five 45 days of filing

57 In resolving dispute between the parties under

these circumstances Defendant shall bear the burden of

demonstrating that its position complies with this Consent

Decree and the Act The Court shall decide the dispute

based upon applicable principles of law The United States

reserves the right to argue that its position is reviewable

only on the administrative record and must be upheld unless

arbitrary and capricious or otherwise not in accordance with

law

58 In the event that the EPA and the relevant State

Party are unable to reach agreement amongst themselves with

regard to the Defendants claim the position of the United

States shall be the plaintiffs final position

dissenting Plaintiff-Intervenor may file such other
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pleadings expressing its position as allowed by the Court

59 Where the nature of the dispute is such that

more timely resolution of the issue is required the time

periods set forth in Section may be shortened upon motion

of one of the Parties to the dispute and approval of the

Court

60 The Parties do not intend that the invocation of

this Section by Party cause the Court to draw any

inferences nor establish any presumptions adverse to either

Party as result of invocation of this Section

61 As part of the resolution of any dispute submitted

to the dispute resolution the Parties by agreement or

this Court by order may in appropriate circumstances

extend or modify the schedule for completion of work under

this Consent Decree to account for the delay in the work

that occurred as result of dispute resolution Defendant

shall be liable for stipulated penalties for its failure

thereafter to complete the work in accordance with the

extended or modified schedule

XI INFORMATION COLLECTION AND RETENTION

62 The United States the State Parties and their

representatives including attorneys contractors and

consultants shall have the right of entry into any of the

Facilities covered by this Consent Decree at all reasonable

times upon presentation of credentials to
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monitor the progress of activities required

under this Consent Decree

verify any data or information submitted to

the United States or State Party in accordance with the

terms of this Consent Decree

obtain samples and upon request splits of

any samples taken by Defendant or its representatives

contractors or consultants

obtain documentary evidence including

photographs and similar data and

assess Defendants compliance with this

Consent Decree

63 Until three years after the termination of this

Consent Decree or until three years after the satisfaction

of portions of this Consent Decree consistent with Paragraph

78 Partial Termination whichever occurs first Defendant

shall retain all non-identical copies of all documents

records or other information including documents records

or other information in electronic form in its or its

contractors or agents possession or control or that come

into its or its contractors or agents possession or

control and that relates in any manner to Defendants

performance of its obligations under this Consent Decree

This information-retention requirement shall apply

regardless of any contrary corporate or institutional
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policies or procedures At any time during this

information-retention period the United States or State

Party may request copies of any documents records or other

information required to be maintained under this Paragraph

64 If Defendant desires to revert to its ordinary

document retention policy in regards to documents it is

otherwise required to retain at least months before the

expiration of the document retention period Defendant shall

notify the United States of its intention to revert to its

ordinary document retention policy Should the United

States request copies Defendant may assert that certain

documents records or other information is privileged under

the attorney-client privilege or any other privilege

recognized by federal law If Defendant asserts such

privilege it shall provide the following the title of

the document record or information the date of the

document record or information the name and title of

each author of the document record or information the

name and title of each addressee and recipient

description of the subject of the document record or

information and the privilege asserted by Defendant

However no documents records or other information created

or generated pursuant to the requirements of this Consent

Decree shall be withheld on grounds of privilege

65 Defendant may also assert that information
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required to be provided under this Section is protected as

Confidential Business Information CBI under 40 C.F.R Part

As to any information that Defendant seeks to protect as

CBI Defendant shall follow the procedures set forth in 40

C.F.R Part

66 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 States

pursuant to applicable federal or state laws regulations

or permits nor does it limit or affect any duty or

obligation of Defendant to maintain documents records or

other information imposed by applicable federal or state

laws regulations or permits

XII EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS

67 This Consent Decree resolves all the civil claims

of the United States and the State Parties for the

violations alleged in the Complaint and in the Complaints

in Intervention filed in this action from the date those

claims accrued through the date of entry The claims so

resolved include without limitation claims for SO2 and

acid mist emissions in alleged violation of PSD NSR NSPS

Subpart and Title and the corresponding SIP

requirements based on construction modification or

reconstruction projects at the sulfuric acid production

units at the Facilities up to the filing of the Complaint in
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this action

68 The United States and the States reserve all legal

and equitable remedies available to enforce the provisions

of this Consent Decree except as expressly stated in

Paragraph 67 This Consent Decree shall not be construed to

limit the rights of the United States or the State Parties

to obtain penalties or injunctive relief under the Act or

implementing regulations or under other federal or state

laws regulations or permit conditions except as expressly

specified in Paragraph 67 The United States and the State

Parties further reserve all legal and equitable remedies to

address any imminent and substantial endangerment to the

public health or welfare or the environment arising at or

posed by Defendants Facilities whether related to the

violations addressed in this Consent Decree or otherwise

69 This Consent Decree is not permit or

modification of any permit under any federal State or

local laws or regulations Defendant is responsible for

achieving and maintaining compliance with all applicable

federal State and local laws regulations and permits

and Defendants compliance with this Consent Decree shall be

no defense to any action commenced pursuant to any such

laws regulations or permits Except as otherwise provided

in this Consent Decree the United States and the State

Parties do not by their consent to the entry of this
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Consent Decree warrant or aver in any manner that

Defendants compliance with any aspect of this Consent

Decree will result in compliance with provisions of the Act

or with any other provisions of federal State or local

laws regulations or permits The Parties agree that this

Consent Decree represents diligent prosecution of the claims

alleged in the Complaint

70 This Consent Decree does not limit or affect the

rights of Defendant or of the United States or the State

Parties 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 Defendant except as

otherwise provided by law

71 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

XIII COSTS

72 The Parties shall bear their own costs of this

action including attorneys fees except that the United

States and the State Parties shall be entitled to collect

the costs including attorneys fees incurred in any action

necessary to collect any portion of the civil penalty or any

Stipulated Penalties due but not paid by Defendant

XIV NOTICES
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73 Unless otherwise specified herein whenever

notifications submissions or communications are required

by this Consent Decree they shall be made in writing and

addressed to the United States Department of Justice EPA

Headquarters and the EPA Region and the State Party where

the relevant sulfuric acid plant is located as follows

To the United States

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 90-5-2-1-08500

and

To EPA

David Schnare

U.S Environmental Protection Agency Headquarters

Ariel Rios Building

1200 Pennsylvania Avenue N.W

Mailcode 2242A

Washington D.C 20460

Nathan Frank

U.S Environmental Protection Agency

Region

AE -17

77 West Jackson Blvd

Chicago Ii 60604

Cynthia King

U.S Environmental Protection Agency

Region

C-l4J

77 West Jackson Blvd

Chicago Il 60604

Jan Gerro

U.S Environmental Protection Agency

Region

1445 Ross Avenue
case 207-cv-001 34-WCL-APR document 24 filed 07/23/2007 page 54 of 71

Suite 1200

Mailcode 6RCEA

Dallas TX 75202

Himanshu Vyas

U.S Environmental Protection Agency

Region

1445 Ross Avenue

Suite 1200

Mailcode 6ENAT

Dallas TX 75202

Thomas Mintz

U.S Environmental Protection Agency

Region

75 Hawthorne Street

Mailcode ORC-2

San Francisco CA 94105

John Kim

U.S Environmental Protection Agency

Region

75 Hawthorne Street

Mailcode AIR-5

San Francisco CA 94105

To the State of Indiana

Lynne Sullivan

Senior Environmental Manager

Office of Enforcement/Air Section Mail Code 60-02

Indiana Department of Environmental Management

100 Senate Avenue

Indianapolis IN 46204-2251

Thomas Nyhan

Hammond Department of Environmental Management

Hammond City Hall Room 304

5925 Calumet Avenue

Hammond IN 46320

To the Bay Area Air Quality Management District

Alexander Crockett

Bay Area Air Quality Management District

939 Ellis Street

San Francisco CA 94109

Brian Bunger

Bay Area Air Quality Management District
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 55 of 71

Office of District Counsel

939 Ellis Street

San Francisco CA 94109

To the State of Louisiana

Peggy Hatch

Administrator Enforcement Division

Office of Environmental Compliance

Louisiana Department of Environmental Quality

P.O Box 4312

Baton Rouge Louisiana 70821-4312

To Defendant

James Dragna

Bingham McCutchen LLP

Suite 4400

355 South Grand Avenue

Los Angeles CA 90071

Frank Sardo

Rhodia Inc

CN 7500

Cranbury NJ 08512-7500

Paul Linskey

Rhodia Inc

CN 7500

Cranbury NJ 08512-7500

Any Party may by written notice to the other Parties

change its designated notice recipient or notice address

provided above Notices submitted pursuant to this Section

shall be deemed submitted upon mailing unless otherwise

provided in this Consent Decree or by mutual agreement of

the Parties in writing

XV EFFECTIVE DATE

74 The effective date of this Consent Decree shall be

the date upon which this Consent Decree is entered by the
case 207-cv-001 34-WCL-APR document 24 filed 07/23/2007 page 56 of 71

Court

XVI RETENTION OF JURISDICTION

75 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 modifying this Decree pursuant to Sections and

XVII or effectuating or enforcing compliance with the terms

of this Decree

XVII MODIFICATION

76 The terms of this Consent Decree may be modified

only by subsequent written agreement signed by all the

Parties Where the modification constitutes material

change to any term of this Decree it shall be effective

only upon approval by the Court

XVIII TERMINATION

77 Complete Termination After Defendant has

maintained continuous satisfactory compliance with the

requirements of the Act applicable to the emissions of SO2

or sulfuric acid mist from its sulfuric acid plants and

this Consent Decree for period of one year after

achieving compliance with all of the requirements of this

Consent Decree and has paid the civil penalty and any

accrued Stipulated Penalties as required by this Consent

Decree Defendant may serve upon the United States and the

State Parties Request for Termination stating that
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 57 of 71

Defendant has satisfied those requirements together with

all necessary supporting documentation

78 Partial Termination If Defendant has satisfied

its obligations and requirements under this Consent Decree

with respect to an individual Facility and Defendant can

demonstrate continuous compliance with the requirements of

this Consent Decree at that Facility for period of one

year Defendant may serve upon the United States and the

relevant State Party Request for Partial Termination with

regard to that Facility stating that Defendant has

satisfied the requirements of this Consent Decree with

respect to that Facility together with certification of

continuous compliance in substantially the form provided in

Paragraph 23 and all necessary supporting documentation

79 Following receipt by the United States and the

State Parties of Defendants Request for Termination or

Request for Partial Termination the Parties shall confer

informally concerning the Request and any disagreement that

the Parties may have as to whether Defendant has

satisfactorily complied with the requirements for

termination of this Consent Decree If the United States

after consultation with the State Parties agrees that the

Decree or portions thereof may be terminated the Parties

shall submit for the Courts approval joint stipulation

terminating the Decree
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 58 of 71

80 If the United States after consultation with the

State Parties does not agree that the Decree may be

terminated Defendant may invoke Dispute Resolution under

Section of this Decree However Defendant shall not seek

Dispute Resolution of any dispute regarding termination

under Section of this Consent Decree until 30 days after

service of its Request for Termination

XIX PUBLIC PARTICIPATION

81 This Consent Decree shall be lodged with the Court

for 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 Defendant

consents to entry of this Consent Decree without further

notice

82 The Parties agree and acknowledge that final

approval by Plaintiff-Intervenor the State of Louisiana

Department of Environmental Quality and entry of this

Consent Decree is subject to the requirements of La R.S

302050.7 which provides for public notice of this Consent

Decree in newspapers of general circulation and the official

journals of parishes in which the Baton Rouge and

sulfuric acid plants are located an opportunity for public
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 59 of 71

comment consideration of any comments and concurrence by

the State Attorney General The State of Louisiana reserves

the right to withdraw or withhold consent if the comments

regarding this Consent Decree disclose facts or

considerations which indicate that this Consent Decree is

inappropriate improper or inadequate

XX SIGNATORIES/SERVICE

83 Each undersigned representative of Defendant and

other parties to the Decree and the Assistant Attorney

General for the Environment and Natural Resources Division

of the Department of Justice or his or her designee

certifies that he or she is fully authorized to enter into

the terms and conditions of this Consent Decree and to

execute and legally bind the Party he or she represents to

this document

84 This Consent Decree may be signed in counterparts

and its validity shall not be challenged on that basis

85 Defendant agrees not to oppose entry of this

Consent Decree by the Court or to challenge any provision of

the Decree unless the United States has notified Defendant

in writing that it no longer supports entry of the Decree

86 Defendant 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 formal service

requirements set forth in Rules and of the Federal Rules
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 60 of 71

of Civil Procedure and any applicable Local Rules of this

Court including but not limited to service of summons

XXI INTEGRATION

87 This Consent Decree and its Appendices constitute

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 Other than the

Appendices which are attached to and incorporated in this

Decree and deliverables that are subsequently submitted and

approved pursuant to this Decree no other document nor any

representation inducement agreement understanding or

promise constitutes any part of this Decree or the

settlement it represents nor shall it be used in construing

the terms of this Decree

XXII FINAL JUDGMENT

88 Upon approval and entry of this Consent Decree by

the Court this Consent Decree shall constitute final

judgment of the Court in this action as to the United

States the State Parties and Defendant The Court finds

that there is no just reason for delay and therefore enters

this judgment as final judgment under Fed Civ 54

and 58

XXIII APPENDICES
case 207-cv-00134-WCL-APR document 24 flIed 07/23/2007 page 61 of 71

The following appendices are attached to and

incorporated into this Consent Decree

Appendix is the Alternative Monitoring Plans for

the Rhodia Facilities

Dated and entered this 23rd day of JULY 2007

s/William Lee

WILLIAM LEE JUDGE

UNITED STATES DISTRICT COURT

Northern District of Indiana

FOR PLAINTIFF UNITED STATES OF AMERICA

THE UNDERSIGNED PARTIES enter into this Consent Decree in

the matter of United States Rhodia Inc N.D md

relating to alleged violations of the Clean Air Act

FOR PLAINTIFF UNITED STATES OF AMERICA

/s/ Matthew McKeown

MATTHEW McKEOWN

Acting Assistant Attorney

General

Environment and Natural

Resources Division

United States Department of

Justice

/s/ Steve Gold

STEVE GOLD

Senior Attorney

Environmental Enforcement

Section

Environment and Natural

Resources Division

United States Department of
case 207-cv-001 34-WCL-APR document 24 flIed 07/23/2007 page 62 of 71

Justice

Post Office Box 7611

Washington D.C 20044

202 514-5260

202 616-6584 FAX

/s/ Cynthia King

CYNTHIA KING

Special Trial Attorney

Environmental Enforcement

Section

Environment and Natural

Resources Division

United States Department of

Justice

77 Jackson Blvd

Chicago IL 60604

312-886-6831

JOSEPH VAN BOKKELEN

United States Attorney

Northern District of Indiana

/s/ Wayne Ault

WAYNE AULT

Assistant United States

Attorney

Northern District of Indiana

5400 Federal Plaza Suite 1500

Hammond Indiana 46320

Telephone 219-937-5500

Telecopy 219-852-2770
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 63 of 71

THE UNDERSIGNED PARTIES enter into this Consent Decree in

the matter of United States Rhodia Inc N.D Ind

relating to alleged violations of the Clean Air Act

/5/ Mary Gade

MARY GADE

Regional Administrator

U.S Environmental Protection

Agency

Region
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 64 of 71

THE UNDERSIGNED PARTIES enter into this Consent Decree in

the matter of United States Rhodia Inc N.D md

relating to alleged violations of the Clean Air Act

Is Granta Nakayama

Granta Nakayama

Assistant Administrator

Office of Enforcement and

Compliance Assurance
case 207-cv-00134-WCL-APR document 24 flIed 07/23/2007 page 65 of 71

THE UNDERSIGNED PARTIES enter into this Consent Decree in

the matter of United States Rhodia Inc N.D Ind

relating to alleged violations of the Clean Air Act

/s/ Richard Greene

RICHARD GREENE

Regional Administrator

U.S Environmental Protection

Agency

Region
case 207-cv-00134-WCL-APR document 24 flIed 07/23/2007 page 66 of 71

THE UNDERSIGNED PARTIES enter into this Consent Decree in

the matter of United States Rhodia Inc N.D md

relating to alleged violations of the Clean Air Act

/5/ Wayne Nastri

WAYNE NASTRI

Regional Administrator

U.S Environmental Protection

Agency

Region
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 67 of 71

THE UNDERSIGNED PARTIES enter into this Consent Decree in

the matter of United States Rhodia Inc N.D Ind

relating to alleged violations of the Clean Air Act

Is Ronald Novak

RONALD NOVAK

Chief

Department of Environmental

Management

City of Hammond Indiana
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 68 of 71

THE UNDERSIGNED PARTIES enter into this Consent Decree in

the matter of United States Rhodia Inc N.D md

relating to alleged violations of the Clean Air Act

/s/ Jack Broadbent

JACK BROADBENT

Executive Off icer/APCO

Bay Area Air Quality

Management District
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 69 of 71

THE UNDERSIGNED PARTIES enter into this Consent Decree in

the matter of United States Rhodia Inc N.D md

relating to alleged violations of the Clean Air Act

/5/ Thomas Easterly

THOMAS EASTERLY

Commissioner

Indiana Department of

Environmental Management

Indianapolis Indiana

Is Charles Todd

CHARLES 13 TODD

Chief Operating Officer

Office of the Indiana Attorney

General
case 207-cv-00134-WCL-APR document 24 filed 07/23/2007 page 70 of 71

THE UNDERSIGNED PARTIES enter into this Consent Decree in

the matter of United States Rhodia Inc N.D md

relating to alleged violations of the Clean Air Act

FOR THE STATE OF LOUISIANA

Date March 19 2007 Is Charles Foti Jr

CHARLES FOTI Jr

Attorney General

Louisiana Department of Justice

P.O Box 94005

Baton Rouge Louisiana 70804

FOR THE LOUISIANA DEPARTMENT OF

ENVIRONNENTAL QUALITY

Date March 19 2007 /s/ Harold Leggett

HAROLD LEGGETT Ph.d

Assistant Secretary

Office of Environmental Compliance

Louisiana Department of

Environmental Quality

P.O Box 4312

Baton Rouge Louisiana 70821

Date March 19 2007 Is Allen Kirkpatrick

ALLEN KIRKPATRICK

Senior Attorney

Office of the Secretary

Legal Affairs Division

Louisiana Department of

Environmental Quality

P.O Box 4302

Baton Rouge Louisiana 70821
case 207-cv-00134-WCL-APR document 24 flIed 07/23/2007 page 71 of 71

THE UNDERSIGNED PARTIES enter into this Consent Decree in

the matter of United States Rhodia Inc N.D md

relating to alleged violations of the Clean Air Act

FOR DEFENDANT RHODIA INC

/s/ James Harton

James Harton President

Rhodia Inc

If different from above the following is the name and

address of Settling Defendants agent for service and the

name and address of Settling Defendants counsel Counsel

may act as agent for service

Agent for Service Attorney

Name Name