IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

Plaintiff,

Defendant.

UNITED STATES OF AMERICA,

111£ DOW CHEMICAL COMPANY,

Civil Action No.

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CONSENT DECREE:
TABLE OF CONTENTS

l. JURISDICTION AND VENUE _.......•... 3

II. APPLICAIlILITY , , , 4

III. DEFlNlTJONS . . ..... 6

IV. CIVIL PENALTY ...........................•... , ..... ..... . .. 12

V. COMPLIANCE REQUIREMENTS , .. , . . .. , .•.... [J

VI

VII.

A. Applicability ofthe Enhanced LDAR Program. " ..• , .....•....... , 13

B. Facility-Wide LDAR Document. . ".' , .. , 13

C. Monitoring Frequency and Equipment , .. , .. , , 14

D. Leak Detection and Repair Action Levels , , , .. , [6

E. Repairs 18

F. Delay ofRepair 20

G. Valve and Connector Replacement and Improvement Program , 20

H. Management ofChange . . . . . . . . . . . . . 28

l. Training , 28

J. QualilY Assurance ("QA")lQuality Control ("QC') . . . . . . . . . . . . .. 29

K, LDAR Audits and Correctivc Action 30

L. Certification ofCompliancc. . 34

M. Reoordkeeping , , , .. , . . .. . . . , .. 34

REPORTING REQUIREMENTS " , , " . 35

LOW GLOSS AI3S UNIT ......................................•.......... 36

VlIl. STlI'ULATED PENALTIES .. , ...........•................ .... .. 41

IX. FORCE MAJEURE " . . 49

X. DISPUTE RESOLUTION , . . ... 52

XI INFOR!\.1ATlON COLLECTION AND RETENTION , , 54

XII. EFFECT OF SETTLEMENTIRESERVATION OF RIGHTS ..

XIII. COSTS .

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. ... 57

XIV. NOTICES . . 57

XV. EFFECTIVE DAiE ...............•............ ...................... 59
XVI. RETENTION OF JURISDICTION ...........................•............ 60

XVII. MODIFICATION ...............................•..........•.......... 60

XVIII. TERMINATION 60

XIX. PUBLIC PARTICiPATION .........................••.........•......... 61

XX. SIGNATORlESlSERVICE 61

XXI. Il'ffEGRATION ..................•..........•..........•............... 62

XXII. FINAL JUDGMENT 63

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Appendix A

TABLE OF APPENDICES

Factors to be Considered and Procedures to Ix: Followed to Claim

Commercial Unavailability

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CONS}:NT IlECREE

WHEREAS, PlaintilYlbe United SUlICS of America ("United States"), un behalf ofthe

United States EnvironmenUlI Protection Agency ("EPA"), has filed a complaint against Defcndant

Thc Dow Chemical Company ("Dow") concurrently with the lodging ofthis COnsenl Decree;

WHEREAS Dow owns a manufacluring and research site (the "Facility") known by Dow

as "Michigan Operations," lhe headquarters of which is located at 1790 Building, Washington

Street, Midland, Michigan; at this Facilily, various chemicals are manufaclured, fonnulated, or

othcrwise processed;

WHEREAS, the Complaint alleges thaI Dow violated Seclion 112 ofthe Clean Air Act

("CAA"),42 U.s.c. § 7412, and the following implementing regulations at the Facility:

40 C.F.R. Part 61. Subpart F (National Emission Standard for Vinyl Chloride); 40 C.F.R. Part 61.

Subpart V (National Emission Standard for Equipments Leaks (Fugitive Emission Sources»); 40

C.F.R. Part 61, Subpart FF (National Emission Standard for Benzene Waste Operations); 40

C.F.R. Pan 63, Subpart F (lbe Nalional Emission Standards for Organic Hazardous Air Pollutants

from the Synthetic Organic Chemical Manufacturing Industry); 40 C.F.R. Part 63, Subpart G (the

National Emission Slandards for Organic Hazardous Air Pollutants from thc Synthetic Organic

Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and

Waslewater); 40 C.F.R. Part 63, Subpart H (the National Emission Stalldards for Organic

Hw..ardous Air PolluUlnts for Equipment Leaks); 40 C.F.R. Pan 60, Appendix A, Method 21; 40

C.F.R. Part 63, Subpart GOG (the Natiunal Emission Standards for Pharmaceuticals Production);

40 C.F.R. Part 63, Subpart J1J (National Emission Standards for Hazardous Air Pollutant

Emissions: Group IV Pol)mers and Resins); 40 C.F.R. Part 63, Subpan MMM (the National

Emission Standards for Hazardous Air Pollutants for Pesticide AClive Ingredient Production); and

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40 C.F.R. Pan 63, Subpart UUUU (the National Emission Standards for Hazardous Air Pollutants

for Cellulose Products Manufacturing);

WHEREAS, the Complaint alleges that Dow violated Section 301(a) ofthe Clean Water

Act (..CWA"), 33 U.S.C. § 1311(a);.

WHEREAS, the Complaint alleges that Dow violated Section 3005(a) ofthe Resource

Conservation and Recovery Act ("RCRA'"), 42 U.S.c. § 6925(a), and the federally-authorized

state provisions found at Michigan Administrative Code (~MAC'") Rule 299.9615;

WHEREAS, Dow docs not admit any liability to the United States arising out ofthe

transactions or occurrences alleged in the Complaint and nothing in the Complaim, nor in this

Colt5Cnt Decree, nor in the e:<ecution and implementation ofthis Consent Decree shall be treated

as an admission of any violation offederal or state statutes or regulations in any litigation or forum

whatsoever, except that the tenns ofthis Consent Decree, aoo Dow's failure to comply "ilh the

terms and conditions therCQf may be used by the United States in any action or dispute resolution

proceeding to enforce the tenns oflhis Consent Decree or as otherwise pcnnitted by law;

WHEREAS, in the course ofthe negotiations ofthis Consent Decree, without any

admission ofliability or of violation oflaw, Dow undertook numerous actions to address all ofthe

allegations in the Complaint and the Findings and Notice of Violations (as defined in Paragraph

9.r), including but not limited to pcrfonning initial compliance demonstrations for certain

condensers; submitting design evaluations for certain condensers and scrubbers; recalculating

some emissions estimations; equipping lines with secondary closure devices; monitoring certain

connectors that previously had not been monitored; undertaking enhanced training; correcting

alleged recordkeeping and reporting errors; suhmitling a revised National Pollutant Discharge

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Eliminalion SySlem \NPDES~) ~it appliulion; repairing cracks in a seconduy conl8.inmenl

lI1eB; lind ~moving :!e"aa118.nks from haZllrdous ..1\Stc savice;

\\'HEREAS. the Uniled Swes mel Dow ("Parties; ~.1U'Idthis Court by entering

this Consent Dccrtt flDds. that this Consent Decree has bem ncgoIilllCd by the Panics in good

faith mel ",ill a\"OKIlitigation bef",U'n the Panies. and that this Comenl Decree is fair, reasonable.

md in the publi(" interest;

NOW. llIEREFORE, bef~ the: laking ohny lestimony. without !he adjudication or

admission ofany issur of foct or law eXCepillS provided in Section r. and with the COlUiClU ofthc

Parties. [T [5 HEREBY ADJUDGED, ORDERED. AND DECREED lI..'l follows:

I. JURISIlICTION AND VENUE

I. This Court hasjurisdiClion over Ihe subjttt matter oflhis action pursuanllo 28

U.S.C. §§ 1331, 1345, and 1355; Stttion 113(b) oftlK: CAA. 42 U.S.c. § 74 I3(b); Section 309(b)

ofthe CWA, 33 V.S.C § 1319(b); Stttion 3008(aXI) ofRCRA. 42 U.S.C. § 6928(a)(I); and over

the Partics. Venue lies in this District punlllUlt to Section 113{b) ofthc CAA. 42 U.S.C.

§ 7413(b); Section 309(b) ofthe CWA. 33 U.S.C. § 1319(b); Section 3OO8(a)(l) ofRCRA. 42

U.S.c. § 6928(a)(I); and 28 V.S.C §§ 1391(b) and (c) and 1395(a), because Dow resKlcs and is

Ioc:aled in this judicial distritl and the: violatKlns all~ in the Complaint are alleged 10 ha\"C

0lX"urm:! in thisjudicial district. For purposes ofthis Decree, or any action 10 enforce this Decree,

Dowoons.enlS 10 this COID'1'sjurisdittion O\-a this Decree, over lIDy action 10 enfol'tt this Decree,

md O\'eT Dow. Dow also WIl$rl115 10 venue in this judidal districi.

2. For pwposes ofthis Consent [>,:,;ree, Dow doe's not contellt that the Complaint

slates claims upon which relief may be granted pursuant to Scctlon 112 ofthc CAA. 42 V.S.C

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§ 7412; Section 301 oftile CWA, 33 U.S.c. § 1311; Section 3005(a) ofRCRA, 42 U.S.C.

§ 6925(a); and MAC R 299.9615.

3. Notice ofthe commencement ofthis action has been given to the State of Miehigan

as required by Section 113(b) ofthe CAA, 42 U.S.C. § 7413(b); Section 309(b) ofthe CWA, 33

U.s.c. § 1319(b); and Section 3008(a)(2) of RCRA, 42 U.S.C. § 6928(a)(2).

U. APPLICABILITY

4. The obligations ofthis Consent Decree apply to and are binding upon the United

States and upon Dow and any successors, assigns, and other entities or persons otllerwise bound by

law.

5. No transfer ofownership or operation of allY equipment at the Facility that is

subject to Leak Detection and Repair ("LDAR~), as defined in Subparagraph 9.t, whether in

compliance with the procedures of Paragraphs 5 or 6 or otherwise, shall relieve Dow ofits

obligations to ensure that the tenns ofthis Consent Decree are implemented unless and until:

a. The transferee agrees in "Titing to undertake tbe applicable obligations

required by this Consent Decree "lth respect to equipment at the Facility that is subject to LDAR,

and to intervene as a defendant in this action for the purpose of being bound by the applicable

tenns ofthis Consent Decree; and

b. The United States, after receiving information sufficient to demonstrate that

the transferee has the technical and financial means to comply with the applicable obligations of

this Consent Decree, CQnsents in writing to substitute the transferee for Dow v..ith respect to sueh

obligations; and

c. The Court approves such substitution.

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6. By no less than 30 days prior to lhe transfer ofme oWTla~hipor operation of

equipment at tl1e Facility that is sub;«t to LDAR. Dow shall pro...ide a copy ofthis Consent

Decree to the proposed transf~ IIlld abo shall pro\·u .....rittm notice ofthe prospccth·c transfc:r,

toge:ther with a ropy of all ponions ofthe proposc:d .....rinc:n agtttlUent bd.",""ttO Dow IIlld the:

prospcdin lnInsf~ related to m\'ironmc:nl8l compliance. to EPA, the Uoiled Slates Attomcy

for the Eutcm District of Miehigan.1Illd the UnilCd StaleS Dcpartmml ofJusti«, in aC"l;O~

"'ith Section XIV ofthis Dc:crc:c: (N(){i~), Any .ncmpt totransferol'o"TlCf'Shipor opc:nuionofany

equipment.t the: Facility thai is subjc:cllo LDAR without complying with this Pangraph

eonstitut~ ....iolation ofthis Dccrc:e.

7. Oow sh.aU pro...ide a copy of all rc:1c:....nl portions oflhis Consel1l Dc:cre<: to all

officcrs, employees, illld agellts whose duties might reasollably include compliance wilh any

pro...ision ofthis Dccree, as wcll as to illly contraClor retained to pc:Tform work required under Ihis

Consent Dccrcc. l1le foregoing requjrc:lTIC11t may be satisfied by hard copy. eleclTOnic copy. or by

providing on-line: access with notice to the affected pc:DOMCI. Dow sh.all condition any such

COI\lrl\I;1 upon pc:rfonnancc: oflhc work in conformity with the: applicable: tmns ofthis Consenl

Dtt~.

8. In an)' action to mf~c this Consmt Dccrec:, Dow shall ll(l( raise: lIS. defense: the

failure: b)' any ofits offiens, directors. nnplo)'c:c:s, lIIalts, or conuaetol'$ to takc any eoctions

l'K'tt1$1l)' to comply "'ith tbc: provisions ofthis Conxnt Decree. In any ......ion to o:nforcc this

Conxnl Dc:cru: at the: Low Gloss ABS uniL Dow also shall not raise as. defense its inability to

perform any obligations relaled 10 thaI unit based on a limilalK!n in its owncrship and.-or

ope11l1ional inleresl in thaI unil.

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III. DEnNITIONS

9. Terms used in this Consent Dei:ree that are defined in the CAA, CWA, and RCRA

or in federal and state regulations promulgated pursuant 10 the CAA. CWA and RCRA shall have

the meaning assigned to them in the CAA, CWA and RCRA or such regulations, unless otherwise

provided in this Decree. Whenever the lerTllS set forth below are used in this Consent Decree, the

following definitions shall apply:

a. ~Annual" or "aJ1Jlually" shall mean a calendar year, except as olherwise

provided in applicable LDAR provisions.

b. "Average" shall mean lhe arithmetic mean.

c. "CAP" shall mean the Corrective Action Plan described in Paragroph 50 of

this Consent Dei:ree.

d. "Complaint" shall mean the Complaint filed by lhe United States in this

action.

e. "Consent Decree" or "Decree" shall mean this Consent Decree and all

appendices attached hereto, but in the event ofany conflict between the texi ofthis Consent Decree

and any Appendix, the text ofthis Consent Decree shall control.

f. "Covered Equipment" shall mean all Covered Types of Equipment in all

Co,'ered Process Units.

g. "Covered Process Units" shall mean the unit that produces ETHOCEL T."

brand cellulose ethers (identified as EOB5) and the Low Gloss ABS Unit (identified as E031).

h. "Covered Types ofEquipment" shall mean all valves (except pressure relief

valves), COJ1Jlectors, pumps, agitators, and GELs in light liquid or gas/vapor service that are

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regulll1td lIllder lUIy "cquipmmtlcak~ provisionsof40 CFR Pan 61 or 63 or a stale or kx:al LOAR

prog~.

1. ~Date of Lodging ofthis Corumt Dttrtt- or -Dale of Lodging- shall mean

the: date that !he United Slates files I "Notice of/mging- ofUris Consent Dttrtt "'ith the CJm; of

this Court for the: pwpoK of providina notice Ind rommmt 10 the public.

j. -Day,- for pIlfJlOSIes ofrequirements WJiquely impl)'C'd by the ELP and not

by Iny applicable LOAR provisions. shall mean I calendarday. In compulilli Iny period oftime

under this Conxnt Dttrtt for submittal ofreports. ",hctt the last day would fallon I Saturday.

Stmday. or fedrnll or state holiday, the period shall indude the nc:xt day that is not a Saturday,

Sunday, or federal or state holiday. For all other purposes, "day" shall have the meaning provided

in the applicable LDAR provisions.

k, "DOR- shall meWl Delay of Repair,

l. ·'Dow" shall mean The Dow Chemical Company.

m. "Effective DateR shall have the meaning given in Se<:tion XV (Effecti\"e

Date).

n. "Enhanced LOAR Program- or "ELP"" shall mean the provisiOlts in this

ConsmI DttTec set forth at Paragraphs 13 • 58 ofthis Dttrtt.

o. REPA- shalt mean the Unittd Sl3les En\·itonmental Protection Agmey and

an)' ofits SUCCCS50r ckpartmmts or agencies.

p. "Exlension,- for purpcI&l'S ofSu.bpacagrnphs 9.y.(i)(b) and 9.y.(ii)(b). shall

mean that: (i) the tested and unlested n.lves ",we produced by the same manufacturer 10 the same

Of essentially e<jui\"a1rnt quality requirements; (ii) the characteristics oflhe valve lhat affect

sealing performance (e.g. type ofvah·e. stem motion, tolerances. surfllCe finishes. loading

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arrangement, and stem and body seal material, design, and construction) are the same or

essentially equivalent as between the tested valve and the untC5ted valve; al\d (iii) the temperature

and pressure ratings ofthe tested valve are at least as high as the temperature and pressure ratings

ofthe untested valve.

q. ~Facility" shall mcan the contiguous manufacturing and research site

known by Dow as ~Michigan Operations,~ the headquarters of which is located at 1790 Building,

Washington Street, Midland, Michigan.

r. "Findings and Notice of Violations~ shall mean the following findings and

notice of violations issued by EPA Region 5: EPA-5-06-MI-8 (CAA) (Junc 28, 2006);

EPA-5-07-MI-9 (CAA) (June 29, 2(07); EPA-5-0S-!'.H-OI (CAA) (November 9, 2007); and

RCRA Notice of Violation from Willie H. Harris, EPA, to David Graham, Dow, dated

November 9, 2007,

s. "First Maintenance Shutdo\\.'Tl·' shall mean the first Maintenance Shutdown

that occurs no sooner than fifteen months after the Effective Date ofthis Consent Decree.

I. ~LDAR~ or ~Leak Detection and Repair~ shall mean the lcak detection and

repair activities required by any ~equipment leak" provisions of 40 CFR Pan 61 or 63. LDAR

also shall mean any statc or local equipment leak provisions that: (i) require the use of Method 21

to monitor for equipment leaks and also require the repair of leaks discovered through such

monitoring; and (ii) are intended to minimize emissions of hazardous air pollutants or other

substances identified on the basis oftoxicity (e.g" toxic air contaminants).

u. "LDAR Audit Commencement Date" or "Commencemem of an LDAR

Audit" shall mean the first day ofthe on-site inspection that accompanies an LDAR audit.

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v. "LDAR Audit Completion Date~ or "Completion ofan LDAR AudiC shall

mean the date that is four (4) moow after tht WAR Audit Commencement Date.

w. ~LDAR PenoonclMshall mean all Dow conlraCtors and emplo)ttS who

perform LDAR monitoring, LDAR data input, mainterJllDl% ofLDAR monitoring devlccs. leak

repairs on equipment subject 10 LDAR. and/or any other field duties genemted by LDAR

requimnenlS.

x. ~Low-Emi!iSions Pxkin~( oc ~Low-E Packing- shall mean eitha (i) oc (ii)

as follo"'"1:

(i) A vah'e packing prodllCt, independent ofany specific valve, for

"'hieh the manufacturer has issued a ",Tillen .....arranty lhatthe

packing "'ill not emit fugitives at greater !han 100 ppm. and lh:lt, ifit

does so emit at any time in the first fi\'e years, the manufllCturer will

repll\Ce the product: provided however, that no packing product

shall qWllify as "Lo.....-E" by reason of \\'Tinen .....arranty unless ll>c

packing fitst was tested by the manufaCll.lrer or a qUllJificd lesting

finn pursuant to generaJl)'-accepted good engineering practices for

testing fugitive emissions and the results ofthe testing Tc:asonably

suppol1the warranty;

0'

(ii) A \'8h'e packing product. independent ofany specifie ,'8J'·e. that has

been tested by the manufacturer or. qualified ttstina finn pursuant

10 gcnmUly-xeqtled good engineering pnIC1Kcs for testina fugith'e

emissions. and thlU, during the test, at DO lime leaked at greater !han

500 ppm, and on A,~e. leaked at less !han 100 ppm.

y. ...[.o,.,··Emissions Valve" or ~Low-E Val"e- shall mean either (i) or (ii) as

(i) A ,11I"e (includirli its specifK: pocking assembly) for "'hil:h the

manufacturer has issued a .....rinen wamnty that it "'ill not emit

fugitives at greater !han 100 ppm, and that, ifit docs so emit at any

time in the fitstli\"e years, the manufaclurer will replace the va!\'e;

provided ho.....ever. that no ,'alve shall qualify as "Low·c by reason

ofwrineTl warrnnty WlIeSS the valve (ineluding its specific packing

assembly) either:

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(a) first was tested by Ihc manufacturer or a qualified testing

finn pursuant to generally-accepted good engineering

practices for testing fugitive emissions and the results ofthe

testing reasonably support !he ",.arranty; or

(b) is as an Extension ofanother valve that qualified as "Low-EO.

under Subparagraph 9.y.(i)(a);

(ii) A valve (including its specific packing assembly) that:

(a) Has been tested by Ihe manufacturer or a qualified testing

finn pursuant to generally-accepted good engineering

practices for testing fugitive emissions and that, during the

test, at no time leaked at greater !han 500 ppm, and on

Average, leaked alless than 100 ppm; or

(b) Is an Extension of another valve that qualified as "Low-E"

under Subparagraph 9.y.(ii)(a).

z. "Maintenance Shutdo"Tt" shall mean a shutdown ofa Covered Process Unit

that either is done for the purpose ofscheduled maintenance or lasts longer than 14 ealendar days.

aa. "Method 21" shall mean the test method found at 40 C.F.R. Part 60,

Appendix A, Method 21. To the extent that the Covered Equipment is subject to regulations that

modify Method 21, those modifications shall be applicable. To the extent that insulated valves

that are Co\·ered Equipment are subject to an alternative monitoring method approved by EPA on

July 24. 2007, that alternative shall be applicable.

bb. "Month" or "monthly" shall mean calendar month, except as othen'..ise

provided in applicable LDAR provisions.

ce. "OEL" or "Open-Ended Line" shall mean any valve, except pressure relief

valves, having one side ofthe valve seat in contact with process fluid and one side opcn to

aunosphere, either directly or through open piping.

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dd. '"OELCD" shall mean an open-ended valve Of line allhe closun: dcvilX.

ce. ~Pamgraph- shallllK'an a portion oflhis Consent Decree MScnlified by an

Ara.bic nWl1('raI.

IT. ..Parties" shall mean the Uniled States and Dow.

8&- "Quarter" or '"quaneriy" shall mean a calendar quarter (January through

Man:h, April through JWlC, July through 5qJtmIber, OcIOba Ihrough lJrecember) except as

othe..wise provided in applicable L.DAR pt'Ovi$ion$.

hh. "Repair Verificalion Monitoring~ shall mean the utiliution of monitoring

(or othe.. IlK'thod that indicales the relative si:t.e ofttle leak) within 24 hours afte.. each attempt at

repair of a leaking piece of equipment in orckr to ensure thai the leak has been eliminated or is

below the applicable leak definition in this EU'.

ii. "Screening Valuc" shall mean tIM: highest cmission Icvcllhat is m:orded at

each piece of equipment as it is monitored in eompliarn.:e with Method 21.

JJ. '"Seclion" shall mean a portion oflhis Consent Decree that has a heading

identified by an upper case Roman numen!.

kk. '''Subpan!.glllpb- shall mean a ponion ofa I'amgraph oflhis Consent Decree

thai is identified by. scquentiaJlOWCf-<"aSC kttn 01' by a lo","n-case Roman numnal.

n. "'Subsection" shall mean a portion ofa Section oflhis Consent I::leaee thai

has. headinl identified by. capital kttn.

nun. "United Sillies" 5hal1 mean the United SllItes ofAmerica. acting on bd'Ialf

o(EPA.

nn. "Week" Of "weekly" shall mean the sllUldard calendaf period. exeept as

otherwise provided in applicable L.DAR provisions.

II
IV, CIVIL PENALTV

10. By no later lhan 30 days after the Effettive Date ofmis Consent De<;ree, Dow shall

pay lhe sum ofTwo Million, Five-Hundred Thousand Dollars (S2,5OO,000) as a dvil penalty.

Dow shall pay the dvil penalty by FedWire El<:<:tronic Funds Tmnsfer ("EFT") to the U.S.

Dcpanment ofJustice in accordante with ",.rittcn instructions to be provided to Dow, following

lodging ofthe Consent Decree, by lhe Finandal Litigation Unit ofthe U.S. Attorney's Office for

the Eastem District of Michigan, 211 W. Fort St, Detroit, MI, 48226. At the time of payment,

Dow sball send a copy oflhe EFT autltorization form, tlte EFT transoction retord, and a tmnsmina1

letter: (i) to the United States in tlte manner set forth in Settion XIV ofthis Dctree (Notites),

(ii) by email to acttsreceivable.CINWD@eva.gov;and(iii) by mail to:

EPA Cindnnati Finance Office

26 Martin Lulher King Drive

Cindnnati, Ohio 45268

The transmittal letter shaH state that lhe payment is for the tivil penalty owed pursuant to the

Consent D<:<:ree in United Stales v. The Dow Chemical Company, and shall reference the civil

action number, USAO File Number 2OO8V00788, and DOJ ta5C number 90-5-2-1-08935.

II. If any portion ofthe civil penally due to the United States is not paid when due,

Dow shall pay interest on the amount past due, ateruing from the Effective Date through tlte date

of payment, at the rate spedfied in 28 U.S.C. § 1961. Interest payment under lhis Paragmph shall

be in addition to any stipulated penalty due.

12. Dow shall not deduet any penalties paid under this Dc<:rcc pursuant to Ihis Section

or Section VI II (Stipulated Penalties) in calculating its federal income tax.

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v. COMPLIANCE REQUIREMENTS

A. AppliClibililv of Ihe Ephan«4 LDAR Prognm

13. The requiremtnlS ofthis ELF shall apply 10 all Covtred Equipmml and the

requirements of Paragraphs 14 and SI shall apply 10 all equipmml at the: Facilily 1I:uII. is regulaled

unrkr LOAR. The requirements ofthis ELf are in .cIdition 10, and not in litu of. tbc: requiremtnts

ofanyothtt LOAR regulation !hat maybt appliCllblt 10 a piece ofCo\"tred EquipmmL Ifthme is

/I eonni<:l bttw~n an LOAR regullllion and this ELP, Dow shall follow tbc: mon: suinaenl oftht

requiro:mtnts.

n. Facilily-Wide LDAR Document

14. By no laleT than lhree months after the Effective Date ofthis ConSC'nt Decree, Dow

shull develop a facility-wide document that describes: (i) the facility-wide LDAR program (e,g.,

applicability ofregulations to process units and/or specific equipment; leal: definitions;

monitorinil frequencies); (ii) a lrackinil program (e,g, MlI1\lIgcment ofChange) !hat ensures that

new pif:(:elI ofequipment added to the FacililY for lilly reason lU"C integrated into the L1)AR

program and thai pi~ ofequipment that are w:en out of SeTVK:C are rc:ITIO\'ed from the LOAR

program; (iii) the: roles and responsibilities ofall c:mplo}.et' and eonlraClOr perwnncl lISSig.nc:d to

WAR functions at tbc: Facility; (iv) howthe nwnbc:T of~1 dcdi<:.atod to LDAR functions is

sulfIC)("nt 10 satisfy the requirements ofthe LDAR prognmt; and (v) bow tbc: Facility plans 10

impletnc:nt this ELP. Dow shall rev;e\lI'lhis documml on an annual basis and lq)datc it as needed

by no later than Dec=lbc:T 31 ofeach yeal.

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C. Monitoring frequency and Equipment

15. Beginning no later than six months after tile Effe.:tive D31e, for all Covered

Equipment, Dow shall comply with the following periodic monitoring frcqlll:ncies unless:

(i) more frequent monitoring is required by federal, state, or local laws or regulations; or (ii) the

relevant Covered Process Unit has been pctmanently shU! dov.n:

a. Valves - Quanerly

b. Conne<:tors - Annually

c, Pwnps/Agitators - Monthly, except that monitoring shall not be required

for pumps and agitators tlmt are seal-less or that are equipped with a dual

mcchanical seal system that complies ....ith tbe requirements of 40 C.F.R.

§ 63.163(e)

d. Open-Ended Lines Quarterly (monitoring will be done at the closure

device; ifthe closure device is a valve, monitoring will be done in the same

manner as any other valve, but also shaH include monitoring at the end of

the valve or line that is open to the atmosphere)

Compliance with the monitoring frequencies in this Paragraph 15 is not required when a specific,

applicable LDAR provision excludes or exempts, fully or panially, monitoring at a periodic

frequency (e.g. an exemption for equipment that is designated as unsafe-to-monitor or

difficult-to-monitor or an exemption for pumps that have rIO externally actuated slmft), provided

that Dow satisfies all applicable conditions and requirements for the exclusion or exemption sct

forth in the regulation.

16. Valves and CO!Ulct:tors that Have Be<:n Replaced, Repacked. or Improved pursuan\

to Subsection G. For valves and connectors that have been replaced, repacked, or improved

pursuant to Subsection G (Valve and Connector Replacement and Improvement Program), Dow

may elect to monitor any or all sucb equipment althe most stringent monitoring frequency

required by any LDAR regulation that applies to the piece ofequipment, rather than the frequency

14
specified in PlInIgraph 15 above. Ifany such piece oftquipmeot is found to have a Sc:r«ning

Value abo\'e tnt leak definitions in Tab!t 1ofSubxction V,D, Dow st\all monitor that pit«' of

tquipmtnt monthly unlillht piece ofequipmtnt dIows no leaks at tht kat. dc:rmition levels in

Table 1ofSllbxction V.D for I",,~h'e OClJISt(:\IIi\~ months. At that tirnt. Dow may COI1\lTItfICe

monitoring at tbt frtquency for that Iype oftquipmmt set forth in cithtr P~15 or

Subpanlgraph 17.a.

17. Alt.;rnati\',; Mopjwrina ftcg\I!jIKies for Valyes. Conrxcto[J, and Open-Ended

Ling after Two fiats. At any tirnt afitr two conxeutivt )'ears ofmonilorina valves, COlU'I«tOfS

and open-ended Ii,," pwsuant to tilt TtquirementsofPamgraph 15, Dow rnay ell;Ct to comply ""ith

the monitoring requiremenl'l set foAh in this PlInIgraph 17 by notifying EPA no latcr than three

months prior 10 changing to the monitoring frequency spedfied under this Paragraph, Dow may

elect to comply with the monitoring requircmenl'l oflhis Paragraph at one or both Covered Process

Units but may oot llUlke this election for an)1hing less than all pieces ofCovcred Equipment ofthe

same type (I,t_. valves, CQTlllC(:tors. or OEw) in one entire Covered Pro«ss Unit. An election to

comply with tnt monitoring requirements of Subparagraph 17.a (for \'alves. connectorS. andfor

OELs) mUSl iocludt an election to romply with Subparngraph 17.b; Dow may not elec:t to comply

""ith SIIbpanJ.grapb 17.a wilhout also romplying ""ith Subparagraph 17.b.

L for VahJ:S. Connec1OfS. and Open-Ended Lines that H,ve Not' gkW at

an, Time for" Least Two Cons«lI1l\"t Years of Monitoring. for ,-a1,-es,

conneclor5, and opm-ended lines that han not !taked II! any time: for at

least the two )'ears prior to electing this a1ttmalh"t. Dow $hall monitor

valves and opt:n~ lines one time ptr}~ and $hall monitor eo~1Of'l;

ono; time every two yean.

If any leab arc detected during this allcnwi\'e monitoring schedule or

during an LDAR audit or a federal. state or 1o<:aI audit or inspection. Dow

irnrntdiately shall stan monitoring the leaking components pursuant to tht

requirements ofSubparllllraph [7.b.

"
b. for Valves, Connectors, and Open-Ended Lines that Have Leak¢ at anY

Tjme in the Prior Two Years of Monitoring. For valves, connectors, and

open-ended lines that have leaked at any time in the prior two years of

monitoring, Dow shall monitor each piece ofequipment momhly until the

piece ofequipment shows no leaks for twelve consecutive months, at which

time Dow may commence monitoring at the frequency for that type of

equipment set forth in Subparagraph 17.a.

18. Beginning no later than six months after the Effective Date, for all Covered

Equipment, Dow shall comply with Method 21 in performing LDAR monitoring, using an

instrument attached 10 a data logger (or an equivalent instrument) which directly electronically

records the Screening Value detected at each piece of equipment, the date and time that each

Screening Value is taken, and the identification numbers ofthe monitoring instrumem and

technician. Dow shall transfer mis monitoring data to an electronic database on at least a weekly

basis for recordkeeping purposes. If, during monitoring in the field, a piece ofCovered

Equipment is discovered that is not listed in the data logger, Dow is permitted to monitor the piece

ofCovered Equipment and record, by any means available, the Screening Value, the date and time

ofthe Screening Value, and tlte: idemifieation number ofthe technician. In such an instance, the

failure to initially record the information electronically, in the data logger, does not constitute a

violation ofthis Paragraph's requirement 10 record the required information electronically,

provided that Dow thereafter promptly adds tbe piece ofCovered Equipment and the information

regarding the monitoring event to the LDAR database.

D, Leak Dcttdion and Repair Action Levels

19. Action Levels

a. Beginning no later than six months after the Effective Date ofthis Consent

Decree and continuing until terminatiotl, for all leaks from Covered Equipment detected at or

16
abo"c the leak defmitions listed in Table I for !he specific equipment type, Dow shall pt'rform

repairs in accordance with Paragraphs 2\ - 25,

Table I; Leak Definitions by Eguipmgn Type

::1i 'T Lo",~ Leak Definition

UlValves 25'

e- 250 -

""" '00

A 'won 1000

Pumps lind agiwon 2000

handling polymcrizinS

~- OELs (at U:~~ 2SO

Device

b. For purposes ofthese lower leak definitions, Dow may elcctto adjust or not

10 adjust the monitoring instrument readings for background pursuant to any provisions of

appliCllble LDAR requirements that address background adjustment. provided that Dow complies

wilh lhe requirements for doing so or not doing so,

c. The 1000 ppm leak definition for agitators set forth in Table I docs nol

apply 10 the IWO aSitatOl'S identified in Dow's Equipment Mainten8llCt' Tracking System "ith the

numbers 760587 and 760594 and located in !he Covered Procns Unillhal produces ETUOCEL ,.,.

bnInd cellulose ethrni. Instead. the rcauiator) 1eak definition of \0,000 ppm applin 10 these

asitalOrS.

d. The 2000 ppm Icak definition for pumps handling pol)mmzina monomers

$e'I forth in Table I don not apply to the Sicrbath pinder pump located in !he Low Gloss ABS

Covered Process Unit and identified as P2001. Instead. the regulatory leak definition of

5000 ppm applies 10 the Sierbath grindCT pump,

20. Beginning no later than six months after the Effective Date ofthis COll$Cnl De1:ree,

for all Covered Equipment (IIld all val\'es, pumps, lIgitators, and OELs in hellvy liquid service, at

17
any time, including outside of periodic monitoring, that evidence of a potential leak is detected

through audio, visual, or olfactory sensing, Dow shall comply with all applicable regulation<; and,

ifrepair is required, with Paragraphs 21 - 25,

Eo Repairs

21. Except as provided in Subparagraphs 32.d.i and 38.c.i, by no later than 5 days after

detecting a leak, Dow shall perfonn a first attempt at repair. By no later than 15 days after

detection, Dow shall perfonn a final auempt at repair or may place the piece of equipment on the

Delay of Repair list provided that Dow has complied with all applicable regulations and with the

requirements of Paragraphs 22 - 25 and 27.

22. Except as provided in Subparagraphs 32.dj and 38.c.i, Dow shall perfonn Repair

Verification Monitoring.

2J. Repair Attempt for Valves (olher than Comrol Valves) with Screening Values

greater than or e<tualtQ 100 Dpm but less than 250 ppm. For any valve, excluding control valves,

that has a Screening Value greater than or equal to 100 ppm but less than 250 ppm, Dow shall

make an initial attempt to repair the valve and eliminate the leak by no later than 5 days after

detecting the leak. Repair Verification Monitoring shall be perfonned to detennine ifthe repair

has been successful. If, upon Repair Verification Monitoring, the Screening Value is less than

250 ppm, no funher action<; shall be required for that monitoring evel'lt for that valve. If, upon

Repair Verification Monitoring, the Screening Value is greater than or equal to 250 ppm, Dow

shall undertake the requirements for repair required by this Consent Decree (and all deadlines for

such requirements shall be based on the date ofthe failed Repair Verification Monitoring), but

Dow shall not be required to replace or repack the valve pursuant to Subsedion G.

18
24. [)rit! lUId Tap for Vah"a <other !han Control Vah=g>

L Ex~ as pro"ided in Subparagraph 24.b, for leaking "alves {other !han

control "aha), wben other I't"pllir attempts have failalto m!~ emissions below the appliCllble

leak dcfmition and Dow is not ablc to IeIn(»"c the: lcaking Yaln from snvic:e. Do...·shall al~pt at

least one: drill4Jld-tap rqWr (...ith a sc:cond injc:ction of an appiopiiate: xalina material iftbc: first

injc:c:Uofl is unsuccnsful at I't"pllirinJ the: leak) before: placing the: Yllh~ (other than provisionally, as

!ll:l fonh in Subpamgmph 24.c) on the: DOR list.

b. DriIl-lUId-lap is not requim!: (i) when Subparagraph 32.dj applia; or

(ii) when thc:Tc: is a major safety, mechanical, product quality, or environmcntal issue: with

repairinllthe valYe using the drill-and-Iap mcthod., in which case, Dow shall docunu:nt the

rea:wn(s) why any drill-and-tap attempt was not performed prior to placing any valve on the DOR

list,

c. If a dril1-and-tap attempt can rellSOnably be completed within the

fiftcen-day repair period. Dow shall complete the drill-and-tap attempt in thatlimc period. If a

drill-.and.tap altanpl cannol: reasonably occur within the: liftcen-day rcpllir period (I.g., if Dow's

drill-.and·tap conlnlCtor is nol local and must. mobili:le to the: Fadlity), Dow pro\"isionally may

place the: ,'aI,'c on the: OOR list pending attempting the drill-and-tap repair as expeditiously as

pBC1ical.. In DO C"o'ent (other than as provided in S\lbparag:raph 24.b) may Dowlake IDOf'e than 30

d3.ys from lhc: initial mooitoring to attempt. dril1-.and-tap I't"pllir. Ifdrill-anci-tap is successful. the

\...,~ shall be remcn·td from the: provisional DOR list.

25, Except as pro\ided in Subparagraplu 32.d.i and n.d. for each leak. Dow shall

fe'Cord the following information: the dale of all repair allmtpts; the repair methods used dwing

each repair attempt; the date. time and Screening Values for all re-monitoring e'"ents: and, if

19
applicable, documentation of ~ompliance"ith Paragraplts 24 and 27 for Covered Equipment

placed on the OOR lisl.

26. Nothing in Paragraphs 21 • 25 is intended to prevent Dow from taking a leaking

piece ofCovered Equipment out ofservice; provided however, thai prior to placing the leaking

pie~e ofCovered Equipment ba~k in service, Dow must rep:lir the leak or must ~omply with the

requirements of Subscdion F (lklay of Repair) to place the piece ofCovered Equipment on the

DaR lis1.

F. Veln of Repair

27. Beginning no later than the Effective Date ofthis Consent Decree for the

requirements in Subparagraplts 27.b and 27.~.(i), and beginning no later than three months after

the Effective Date ofthis Consent Decree for the other requiremcnts set forth below in Ihis

Paragraph, for all Covered Equipment pla~ed on the DaR list, Dow shall:

a. Require sign-off from the relevant process unit supervisor or person of

similar authority that the piece ofCovered Equipment is technically

infeasible to repair without a process unit shutdown;

b. Undertake periodic monitoring ofthe Covered Equipment placed on tile

DaR list at the frequency required for otller pieces ofCovered Equipment

ofthat Iype in the process unit; and

c. (i) Repair the pic~e ofCovercd Equipment within the time frame required

by the applicable LDAR regulation; or, (ii) if applicable under

Subse~tion G, replace, repa~k, or improve, the piece ofCovered Equipment

by the timeframes SCt forth in Subse~tion G.

G. Val.'e and Connector Replacement and IrnpTO.'crnent Progr:am

28, Conunencing no later than six months after the Effective Date ofthis Consent

Decree, and continuing untiltennination, Dow shall implement the program set forth in

Paragraphs 29 - 40 to improve the emissions perfonnance nfthe valves and connectors that are

20
CO\'em1 Equipment in each Covrnld I'roecss Unit. AllrefCTrnCes to ~\..Ives~ in

l'aragrllp/ls 29 - 35 exclude pressure Il:lieh.h~

29. LiN ofall Existing Yah'" in W Conrpd Process urnu, In the first compliance

Consmt~,Dow shall include • list ofw laB numbcn; ofall \..tves subject to lhis ELP,

broken dowTI by eo,.~ Process Unit. thai are in existence as ofthe EfTecti\'e Oak. 1bc valves

on this list shall the "'Exislill8 V.lns~ fOl' purposes ofPlIl'lIgflIPh5 30·32.

30, Proactive Initial Yalve Tighlming Work Practices Relating 10 ","b New Yaln thai

Is Installed and each Existing Yalve lbat Is Repack((j. Dow wlJ undel'tll.ke the following work

practices with respect to each new vall'e that is subjet:t to LDAR that is installed (whether the new

valve replnces an Existing Vain' or is newly lidded to a Covered Process Unit) and each Existing

Valve that is repacked:

a, Upon installation (or re-installation in the elISe: ofrepacking), Dow shall

tighten the valvc'S packing gland nuts or their equivalent kg., push¢Ts) to:

(i) the mnnufaC1urer's recommended gland nUl or packing torque; or

(ii) any appropriate tightness that \\ill minimize the potential for fugitivc

emission leaks ohny magnitude, This ~ticc shall be implcmented prior

to w \..tve's exposure (or re-cXJl'05lUt', in the case ofTq)llCking) 10 process

l1uids.

b, Not 1ess than three daY' nor more than (\\'0 w«kJ Ifter a new valve: thai has

been inmJled or an Existing VaI\'e thai bas been repecked first iI ,-'{posed

to process l1uids It operatill8 conditions. Dow shall recheck w load on the

\'3.I\'C paclcing and, if necessary, shall tighten w packin& JIand nut:s or their

eqW\'3.Ien1 (t.g, pushers) to: (i) the manufacturer', recommended gland

nut or packing lOfque: or (ii) lUly appropriate tighmcss that will minimize

the potential for fugith'e emission leab ofany magnitude.

3 I. Installing N~ Vah'q. Excqrc as prol'lded in SubparagOlpfts 31 ,a. 3 I.b. or

Paragraph 34, DolO' shall ensure that cach new \'alve (other than a valve that serves a!I the closure

device on an open-ended line) that it installs in each Covered Process Unit and thut, whell installed.

21
will be regulated under LDAR, either is a Low-E Valve or is fitled with Low-E Packing. This

requirement applies to cntirely new valves that are added to a Covcrcd Process Unit and to

Existing Valves that are replaced for any reason in a Covcred Process Unit.

a. Paragraph 31 shall not apply in cmcrgencies or exigent circumstances

requiring immediate installation or rcplacemcnt ofa valve where a Low·E Valve or Low-E

Packing is not available on a timely basis. Any such instance shall be reported in the next ELI'

compliance status report.

b. Paragraph 31 shall not apply to valvcs that are installed temporarily for a

shon-tcnn purpose and thcn removed (c.g., valves conne<:ling a portion ofthe Covered Process

Unit to a testing device.)

32, Replacing or Repacking Existing Valves that Have Screcning Values at or above

250 ppm "ith Low-E Valves or Low-E Packing.

a. Existing Valves Required to Be Replaced or Repacked. Except as

provided in Paragraph 34, for each Existing Valve that has a Screening Value at or above 250 ppm

during any monitoring event, Dow shall either replace or repack the Existing Valve with a Low-E

Valve or Low-E Packing.

b. Timing: If Replacing or Repacking Does Not Require a rrocess Unit

Shuldo"n. Ifreplacing or repacking does nOi require a process unit shutdowll, Dow shall replace

or repack the Existing Valvc by no later than one month after the monitoring event that triggers the

replacing or repacking requirement, unless Dow complies with the following:

I. Prior to the deadline, Dow must take all actions ne<:essary to obtain

the required valve or valve packing, including all necessary

associated materials, as expeditiously as practical, and retain

docwnentation ofthe actions taken and the date ofeach such action;

22
II. If, despite Dow's efforts to comply with Subparagraph 32.b.i, the

required valve or valve packillg, illdudillg allm:eessary associated

materials, is IlOt available ill time to complete the illstallatioll within

olle month, Dow must take all reasonable actions to minimize

emissions from the valve pellding completion oftbe required

replacillg or repacking. Examples include:

(a) Repair;

(b) More frequent monitoring, with additional repairs as

needed; or

(c) Where practical, interim replacing or repacking of a valve

with a valve that is not a Low-E Valve or with packillg that is

not Low-E Packing; and

Ill. Dow must promptly perfonn the required replacing or repacking

after Dow's ra:eipt oflhe valve or valve packillg, including all

necessary associated materials.

c. Timing: IfReplll(;ing or Repackillg Rcquires a Process Vllit Shutdown.

If replacing or repacking requires a process unit shutdown, Dow shall replace or repack the

Existing Valve during the fil"'>t Maintenance Shutdown that follows the mOllitoring event that

triggers the ":quirement to replace or repack the valve, unless Dow documents that insufficiellt

time existed betweell the monitorillg evcllt and that Mailltcnance Shutdown to ellable Dow to

purchase and inslallthe required valve or valve packing teehllology. III that case, Dow shall

undcnake the replacillg or repacking at the next Maintenance Shutdov,'1\ that occurs after Dow's

receipt ofthe valve or valve packing, including all necessary associated materials.

d. Acliolls Required Pellding Replacings or Rep!lckilllV:! P\lrsuant19

Subparagraphs n.ll· c.

I. Actions Required Pursuant to Subsection E. Dow shall not be

required to comply with Subsa:tion E pending replacing or

repacking pursuant to Subparagraphs 32,a - c if Dow completes the

replacing or repacking by the date that is no later than one month

after dctccting the leak. If Dow does 1I0t complete the replacillg or

repackillg v,ithill Olle mOll1h, or if, at the time ofthe leak detection,

23
Dow reasonably can anticipate that it might not be able to complete

the replacing or repacking within one month, Dow shall comply

with all applicable requirements of Subsection E,

II. Actions Required Pursuant to Applicable Regulations. For each

Existing Valve that has a &reening Value at or above 500 ppm,

Dow shall comply with all applicable regulatory requirements,

illCluding repair and ~delay ofrepair," pending replacing or

repacking pursuant to Subparagraphs 32.a - c.

33, Provisions Related to l.ow-E Valves and Low-E rackjng.

a. "Low-E" Status Not Affected by Subsequem Leaks. If, during monitoring

after installation. a l.ow-E Valve or a valve using Low-E Packing has a Screening Value at or

above 250 ppm, the leak is not a violation ofthis IXcree, docs not invalidate the "l.<lw,E" status or

use ofthat type of valve or packing technology, and does nOI require replacing other, non-leaking

valves or packing technology oflhe same type.

b. Repairing Low-E Valves, Jf, during monitoring after installation, a Low-E

Valve or a valve using Low-E Packing has a Screening Value at or above 250 ppm, Paragraphs 21,

22,24, 25, 26 and 27 shall apply.

e. Replacing or Reoocking Low-E Valvcs. On any occasion wben a l.ow-E

Valve or a valve that utili7.t:s Low-E Packing has a Screening Value at or above 250 ppm but below

500 ppm, Dow shall not be required to replace or repack it. On any occasion whcn a Low-E

Valve or a val\'e that utilizes l.ow-E Packing bas a &reening Value at or above 500 ppm, Dow

sball replace or repack it pursuant to the requirements of Paragraph 32.

34. Commercial Unavailability of a l.ow-E Valve or Low-E racking. Dow sball not

be required to utilize a l.ow-E Valve or Low-E Packing to replace or repack a valve if a l.ow-E

Valve or Low-E Packing is commereially unavailable, The factors relevant to tbe question of

24
commen:ial unavailability and the procedures that Dow must follow to assert that a Low-E Valve

or Low·E Packing is commen:ially unavailable are set forth in Appendix A.

35. Resords of Low·£ Valves and Low·£ Packing. Prior to installing any Low·£

Valves or Low-E Packing, or ifnot possible before installation, then as soon as possible after

il\5tallation, Dow shall secure from each manufacturer documentation that demonstrates that the

proposed valve or packing technology meets the definition of"Low-E Valve" and/or "Low·E

Packing." Dow shall make the documentation available upon request.

36. Conrtector Replacement and ImprovemenJ Descriptions.

a. For pUlpOses ofParagraplts 37 - 38, for each ofthe following types of

connet:tors, the following type ofreplacement or improvement shall apply:

Connector Tyee

Flanged

Threaded

Compression

CamLock

Quick Connect

Any t)·PC

(including any of the above)

25

Replacement or Improvement Description

Gasket replacement or gasket improvement

Replaccment ofthe connector with a like

kind connector or other

Replacement ofthe connector with a like

kind connector or other

Replacement or improvement ofthe gasket

or replacement or improvement ofthe

CamLock

Replacement or improvemcnt ofthe gasket if

upplicablc, or replacement ofthe COnnl"Ctor

(with either a like kind conncctor or other) if

there is no gasket

Elimination (e.g.. through welding. pipe

replacement, etc.)
b. In cases .....here replacement-in-kind is utilized as lhe method for replacing

or improving a connector (e.g., a Quick Corrnect replaces another Quick Connect), the provisioll$

of Subparagraphs 36.b.i and 36.b.ii shall apply.

t. Ifthere are types, models or styles of a like-kind connector that are

less likely to leak than the existing connector, and one or more of

those types, models or styles are technically feasible to use

(eonsidcring the service, operating conditioll$, and type of piping or

tubing that the connector is in) and ""Quid not create a major safety,

mechanical, product quality, regulatory or other issue, 0.,1'.' shall

select a like-kind connector from among such types, models or

styles.

n. If Subparagraph 36.bj does not apply, Dow may ill$laJl a like-kind

connector that is lhe same type, model or style as the existing

connector.

37. Instal)jng New Connectors. For each Covered Process Unit, 0.,1'.' shall usc best

etTolU, when selecting a new connector that, .....hen ill$lalled, will be regulated under LDAR, to

selcct a connector that is least likely to leak, using good engineering judgment, for the service,

operating conditiOIl$, and type of piping or tubing that the connet:tor is in. This requirement

applies to entirely nc ..... connectors added to a Covered Process Unit and to existing connectors that

are replaced for .....hatever reason within a Covered Process Unit.

38. Replacing or Improving Connes:tors.

a. Trigger for Replaccment or Improvement Requirements. For each

connector that, in any two ofthree consecutive monitoring periods, has a Screening Value at or

above 250 ppm, Dow shall replace or improve the connector in accordance with the applicable

replacement or improvement described in Paragraph 36. 0.,1'.' shall use best etTorts to install a

replacement or improvement that will be the leastlikcly to leak, using good engineeringjudgmcnt,

for the service, operating conditions, and type of piping or tubing that the connector is in.

26
b. Tjming. Iftht: replacement or improvement does not require II process unit

shutdown, Dow shall undertake the replllCement or improvement by no later than one month after

the monitoring event that triggers the replacement or improvcment requirement. !fthe

replllCement or improvement requires a process unit shutdown, Dow shall undertake the

replllCement or improvcment during the first Maintenance Shutdown that follows the monitoring

event that triggers the requirement to replace or improvc the connedor, unless Dow documems

thllt insufficient time existed between the monitoring event and the Maintenance Shutdown to

enable Dow to secure and install the replacemcnt or improvement. In that case, Dow shall

undertake the replacement or improvement at the next Maintenance Shutdown that OCClml after

Dow's !'e<'eipt ofthe ne<oessary materials.

c. Actions Required Pending Replacements or Improvements PUrsuant to

Subparagraphs 38,a - b.

1. Actions Required PursUllnJ 10 SubSCi:tion E. Dow shall rIOt be

required to comply with Subsection E pending replacement or

improvement pursuant to Subparagraphs 38.a - b if Dow completes

the replllCement or improvement by the date that is no later than one

month after dete.;ting the leak. If Dow does not complete Ihe

replacement or improvemem within one month, or if. at the time of

the leak detection, Dow reasonably can anticipate that it might not

be able to complett: the replacement or improvement within one

month, Dow shall comply with all applicable requirements of

SubSCi:tion E.

II. Actions Required Pursuant 10 Applicable Regulations. For each

conne.;tor that has a Screening Value at or above 500 ppm, Dow

shall comply with all applicable regulatory requirements, including

repair and "dclay ofrcpair:' pending replacemem or improvement

pursuant to Subparagraphs 38.a - b.

39. Nothing in Paragraphs 30 - 38 requires Dow to utilize any valve, valve packing

te.;hnology, or connector that is not appropriate for its imended use in a Covered Process Unit.

27
40. In each Compliance Status Report due under Section VI (Reporting Requirements)

ofthis Decree, Dow shall include a separate SC(;tion in the Report that: (i) describes the actions it

took to comply with this Subsection G, including identifying each piece ofequipment that

triggered a requirement in Subsection G, the Screening Value for that piece ofequipment, the type

of action taken (i.e., replacement, repacking, or improvement). and the date when the action was

taken; (ii) identifies any required actions that weTC not taken and explains why; and (iii) identifies

the schedule for any knO'Wll, future replacements, repackings, improvements, or eliminations.

H. Management ofChange

41. Mllllagement ofChange. To the extent not already done, beginning no later titan

tl1ree months after the Effective Date ofthis Conscnt Decree, Dow shall ensure tltat each valve,

connector, pump, agitator, and DEL added to tile Covered Process Units for any reason is

evaluated to detennine if it is subject to LDAR requirements. Dow also sl1alJ ensure that eacl1

valve, connlX:tor, pump, agitator, and DEL tl1at was subject to the LDAR program is eliminated

from tlte lDAR program if it is pltysically removed from a Covered Process Unit. This

evaluation shaH be a part of Dow's Management ofCltange protocol.

I, Training

42. By no later titan nine months after the Effective Date ofthis Consem Decree, Dow

shall develop a training protocol (or, as applicable, require its contractor to develop a training

protocol forthc contractor's employees) and shall ensure tltat all LDAR Personnel ltave completed

training on aJlaspects oflDAR, including this Ell', tltat are relevant to the person'sduties. Once

percalendar year starting in tlte calendar year after completion ofinitial training. Dow shall cnsure

that refresher training is perfonned with respect to each employee or contractor; provided

however, that refresher training is not required ifan individual's employment at the Facility ceases

28
prior 10 !he end ofw calendar year or 00 longer invol"es duties rde"anllo LDAR. Beginning 00

later than !he Effeclive Date oflhis Consenl Deem: Illld continuing unlil u:rmination. Dow shall

ensure (or lIS applicable. mjU~ its eontnctor 10 C'lISUI'e far tbc ronll8C1Or's employees) that new

LDAR PcTsonIxI an: suffieienlly trained prior 10 any flC:ld invoh=xnt (other than supenised

in\"OI"nnml for purposes oftraining) in !he LDAR program.

43. Daily CertifICation by MonilOring Technieians.. Commencing by no later than 0l'IC:

month alkr the EfTecti\'e Date oflhis Consent Deem:. on each day thaI monitoring Ol:curs, at the

end ofsuch II'K)niloring, Dow shall ensure thai each monitoring tec:hnieian certifies lMllhe: data

collected llCcul'lItely represents the: monitoring performed for that day by requiring thc monitoring

tcchnieian to sign a form that includcs lhe following certification:

On [insert date), I revicwed the monitoring data that [collected today and to the

best ofmy knowledge and belief, the data llCcurau:ly represent the monitoring that I

performed today.

44. Commencing by no later than the ftm full calendar quarter after the Etrecli\"l: Date

ofthis Consent Decree, allimcs that an: not announc«l to the WAR monitoring technicians. an

LDAR-tnined employee ar contnlCtor of Dow. who does not serve on a rOl..llinc basis lIS an LDAR

monitoring technician III the FlIeility. shall undertake the follo""ng no less than once per ",Imdar

.. Verify that equipmenl wu monitored at the appropriate fmjuency;

b. Verify that proper documenwion and sign-off! ha~ been reeordcd for all

equipment placed OIlthc OOR list;

c. Ensure tbal repairs have been performed in the required periods;

d. Review monitoring d:lta Illld equipment counts (t.g.. number ofpiect':l of

equipment monitored per day) for feasibility and unusual trends

29
e. Verify that proper calibration records and monitoring instroment

maintenance inforttUltion are maintained;

f. Verify that other LDAR program records ate maintained as required; and

g. Observe in the field each LDAR monitoring technician who is conducting

leak detection monitoring to ensure that monitoring during the quarterly

QAlQC is being conducted as required.

Dow promptly sltall correct any deficiencies detected or observed. Dow shall maintain a log that:

(i) records the date and time that the reviews, verifications, and observations required by tlUs

Paragraph arc undertaken; and (ii) describes the nature and timing of any corrective actions taken.

K. LDAR Audits and Cor,""t;'·e Actinn

45. LDAR Audit Schedule. Untiltennination ofthis Decree, Dow shall ensuTC that an

LDAR audit ofboth Covered Process Units at the Facility is conducted annually in accordance

....;th the following schedule: for the first LDAR audit, the LDAR Audit Commencement Date

shall be no later than three months after the Effective Date ofthis Consent Decrec; for each

subsequent LDAR audit, the LDAR Audit Completion Date shall occur within the same calendar

quaner (of the subsequent year) that the first LDAR Audit Completion Date occurred.

46. Requirements related to persons conducting LDAR audits. For the first, third and

fifth LDAR audits conducted under this Consent Decree. Dow shall retain and utilize a third party

with experiencc in conducting LDAR audits. Dow shall select a different company than the

Facility'S regular LDAR contractor to pcrfonn the third-party audit and Dow may no! hire that

company as the Facility's regular LDAR contractor during the life ofthis Consent Decrec. The

second and founh audits ntlIy be either third-party audits or audits using (alone or in combination

with third-pany personnel) personnel of Dow's subsidiaries from other facilities or from

centralized Dow (and/or subsidiary) functions that do not primarily serve the Facility. All such

internal audits must be conducted by personnel familiar with LDAR requirements and this ELP.

30
47. For each Covered Process Unit, each LDAR audit shall include: <i) ~viewing

oompli~ ",ilb all applicable LDAR ~&ulations. including LDAR rcqui~menu~Iated to

vahu. connerton.. pumps, agitators and OELs in heavy liquid service-; (ii) ~ie\Ooing lIJl(!Jor

\-.:rifying, as applicable, !he same items WI are required to be Tevie\Ooui and/or verified in

Subparagnlphs 44.• - 44.f; (iii) ~il1J "'iJI:ther an)' pieces ofequipment !hat are rcquiml to be

in !he LDAR program are lJ()( included; and (iv) Mcomparatin monitorin&~ 11$ de$cribed in

f'anl&nlPh 4B. LDAR audiu afttt!he tim audit abo $hall include revie\Oo'ing!he Fatility's

compliance wilb this ELP.

48. Comparative Mogitoring. Comparative monitoring during LDAR audits shall be

undenaken as follows:

a. Calculating a C9mI!!lrative Monitoring Auditl.eak rtrwnlage. Covered

Equipment shall be monitored in order to calculate a leak percentage for

each Covered Proces, Unit. broken dO\\1l by equipment type (i.t.. valves.

pwnps, agitators. cOnnectOD. and OELCDs). For descriptive p\lrposes

under this 5«t;on, the monitoring that takes place during the audit shall be

called "comparative monitoring" and the leak percentages derived from the

comparative monilOrina shall be called the "Companl1ive Monitoring Audit

Leak Percentages.M Dow $hall undertake comparati\'e monitoril1J at holb

Co\"U"Cd Process Uniu in each audit. In undcrtakina Comparati\'e

Monitoring. Dow shaJllJ()( be requiml to monitor C\"CI'Y component in each

Covered Process Unit,

b. CalculatiPi!l'£ lIis!oric. A\'em:e Leal:: Permuage from Prior Periodic

Monitorirui: ErmIS. For each C~Proceu Unit, !he hiSlOric. A\'erage

leak perttntage from prior periodic monitoring C\·enu. broken down by

equiprnentt)"'pe (h.• \1Il\'~ (excluding pressure relief\lIl\"c:S), pumps,

agitatoB, eonneclOB. and except a5 provided in Subparagraph 4B.d below,

OELCDs) shall be calculated. The following nwnberof complete

monitoring pttlods immediately preceding !he COIrtpaBtive monitoring

shall be u.5Cd for this purJIO$C: vah"CS - 4 periods; pump$ and agitators· 12

periods; COnne<:IOrs - 2 periods; and excepl as provided in Subparagraph

48.d below, OELCDs • 4 periods.

c. CalculaJinl!.!he Comparative MSllJitoring Leak Ratio. For each Covered

Process Unit and each Covered Type of Equipment. the ratio oftile

Comparative Monitorina Audit Leak Percentage from Subparagr~ph 48.a to

31
tile historic, Avemgc leak percentage from Subparagraph 48.b shall be

calculated. This ratio shall be called the "Comparative Monitoring Leak

Ralio." Ifthe denominator in this calculation is ''zero,'' it shall be assumed

(for purposes ofthis calculalion but not for any other purpose under this

Consent Decree or under any applicable laws lItld regulations) that one

leaking piece of equipment WIIS found in the process unit through routine

monitoring during the 12-momh period before the comparative monitoring.

d. In only the first LDAR audit, Dow shall not be required to undcnake

comparative monitoring on OELCDs or calculate a Comparative

Monitoring ~ak Ratio for OELCDs because ofthe unavailability of

historic, Average leak perccntages for OELCDs.

49. Whep More Frequent Periodic Monitoring is Required. If a Comparative

Monitoring Audit Leak Percentage calculated pursuant to Subparagraph 48.a triggers a more

frequent monitoring schedule under any applicable federal, state, or local law or rcgulation than

the frequencies listed in the applicable Paragraph in Subsection V.C - that is, either Paragraph 15,

16, or 17 -- for the equipment type in that Covered Process Unit, Dow shall monitor the affected

t)"pe of equipment at the greater frequency unless and until less frequent monitoring is again

allowed under the specific federal. stale, or local law or regulation. At no time may Dow monitor

at intervals less frequently than those listed in the applicable Paragraph in Subsection V.C.

50. Cwmtive Aetioll Plan ("CAP").

a. Requirements of a CAP. By no later than the date that is one month after

each LDAR Audit Completion Date, Dow shall develop a preliminary Corrective Action Plan if:

(i) !he results of an LDAR audit identify any deficiencies; or (ii) a Comparative Monitoring Leak

Ratio calculated pursuant to Subparagraph 48.c is 3,0 or higher and the Comparative Monitoring

Audit Leak Percentage calculated pursuant to Subparagraph 48.a is greater than or equal to 0,5

percent. The preliminary CAP shall describe the actions thaI Dow has takcn or shall take to

address: (i) the deficiencies and/or(ii) the call5es ofa Comparative Monitoring Leak Ratio that is

3.0 or highcr (but only ifthe Comparative Monitoring Audit Leak Percentage is at or above 0.5

l2
pef(:ent). Dow shall include a schedule by which actions that have not yet been completed shall

be completed. Dow promptly sllaJl complete each corrective action itcm with thc goal of

completing each action ",.ithin the date that is three months aftcr the LDAR Audit Completion

Date. Ifany action is not completed or nOI expected to be completed within three months afterthc

LDAR Audit Completion Date, Dow shall explain the reasons and propose a schedule for prompt

completion in the final CAP to be submitted under Subparagmph 50.b.

b. Submission ofthe Final CAP 10 EPA. By no later tban the date tbat is four

months after the LDAR Audit Completion Date, Dow shall submit the final CAP to EPA, together

wilh a certification ofthe completioll of each item of eorre<:tive action. If any action is not

completed within three months after the LDAR Audit Completion Date. Dow shall explaill the

reasons, together with a proposed schedule for prompt completion. Dow shall submit a

supplemental certification of completion by no later than one month after completing all actions.

c. EPA Comment on CAP. EPA may submit comments on the CAP.

Except for gocxl cause. EPA may not request Dow to modify any action within the CAP that

already has been compk1ed or is in progress at the time of EPA's eommcnts. Within the date that

is one month after receipt of any comments from EPA, Dow shall submit a reply. Disputes

arising with respect to any aspect of a CAP shall be resolved in accordance with the dispute

resolution provisions ofthis Decree.

d. Extension pfComplction Dates. Because I)Qw asserts that its general

practice is to establish aggressive schedules for undertaking steps to corre<:t potential areas of

non·compliance with environmelltal regulations, and because the Parties do not wish to discourage

this practice, for any corre<:tive action item for which Dow must propose asehedulc for completion

in the final CAP submitted to EPA, I)Qw may later request an extension oftime from EPA ifOow

JJ
demonstrates that an unanticipated probJcm(s) prevented completion according to the

originally-proposed schedule and Dow notifies EPA ofthis probJem(s) promptly upon its

discovery. In its discretion, EPA may grant tlte extension.

L. Certification of Compliance

51. Within 180 days after the initial LDAR Audit Completion Date, Dow shall certify

to EPA that, to the signer's best knowledge WId bclicffonncd after reasonable inquiry: (i) exeept

lIS otherwise identified, the Facility, including the Low Gloss ASS unit, is in compliance: with all

applicable LDAR reguJations and this ELP; (ii) Dow has completed all corrective actions, if

applicable, or is in the process of completing all cotreCtivc actions pursuant to a CAP; and (iii) all

equipment at the Facility, including the Low Gloss ASS unit, that is regulated under LDAR has

been identified and included in the Facility's LDAR program. To the extent that Dow cannot

make the certification in all respects, it shall specifically identify any deviations from

Items (i) - (iii).

M. R~llrdkuping

52. Dow shall keep all records required by this ELP, including each LDAR audit

report, to docwnent compliance with the requirements ofthis ELP for at least one year after

tennination ofthis Consent Decree. Upon request by EPA, Dow shall make all such documents

available to EPA and shall providc, in electronic fonnat ifso requested, all LDAR monitoring data

generated during the life ofthis Consent Decree.

34
VI. REPORTING REQUIR}:MENTS

53. ELF CQmpliance Status ReNns. On the dates and for the time periods set fonh in

Paragraplt 54, Dow shull submit to EPA, in the manner set fonh in Section XIV (Notices), the

following information:

a. The number ofLDAR Personnellll tlte Facility (excluding Personnel whose

functions involve the non-monitoring aspcClS of repairing leaks) and the

approximate percentage oftimc each such person dedicated to performing

hislher LDAR functions;

b. An identification and description of any non-compliance with the

requiremenlS of Section V (Compliance Requirements);

c. An identification of any problems encountered in complying with the

requiremcnts of Section V (Compliance Requirements);

d. The information required by Paragraph 40 of Subsection V.G;

e. A description ofthe trainings done in accordance with this Consent Decree;

f. Any deviations identified in the QAlQC performed under Subsection V.J,

as "''ell as any corrective actions taken under that Subsection;

g. A summary ofLDAR audit resullS including specifically identifying all

alleged deficiencies; and

h. The status of all actions under any CAP that was submitted during the

reponing period, unless the CAP was submiued less than one month before

the compliance status report.

54. Due Dates. The first compliance status report shall be due thiny-one days after thc

first full half-year after tlte Effective Date ofthis Conscnt Decree (i.e.. either; (i) January 31 oflite

ycar after the Effective Date, iftile Effective Date is between January I and June 30 ortile

pra:eding year; or (ii) July 31 oftile )'ear after the Effective Date. iflhe Effective Date is between

July I and December 31). The initial report shall cover tile period between tile Effective Date and

tlte first full half year after tile Effective Date (a "half year" runs between January I and June 30

and between July I and December 31). Until termination ofthis Decree, eacll subsequent report

35
will be due on the same datc in the following year and shaH cover the prior two half years (i.e.•

either January I to December 31 or July I to June 30).

55. Each report submitted under this Consent Decree shall be signed by the Michigan

Operations site leader or the Michigan Operations responsible care leader (head ofthose

responsible for environmental management and compliance), and shall include the following

certification:

[certify under penally of law that this docwnent and all attachments werc prepared

under my direction or supervision in accordance with a s)'stem designed to assure

that qualified personnel properly gather and evaluate the information submitted.

Based on my inquiry oftbe pcrson or persons who mllJlllge the system, or those

persons directly responsible for gathering the information, the information

submitted is, to thc best of my knowledge and belief, true, accurate. and completc.

56. All Reports under this Consent Decree shall be submitted to EPA in the manner

dcsignatcd in Section XIV ofthis Consent Decree (Notices).

57. The reporting requirements ofthis Consent Decree do not relicve Dow ofany

reporting obligations required by the CAA, CWA or RCRA or implementing regularions, or by

any other federal, slate, or local law, regulation, permit, or other requirement. The reporting

requirements ofthis Section are in addition to any other reports, plans or submissions required by

other Sections ofthis Consent Decree.

58. Any information provided pursuant {O this Consenl Decree may be used by the

United States in any proceeding {O enforce the provisions ofthis Consent Decree and as otherwise

permitted by law.

VII. LOW GLOSS AilS UNIT

59. WHEREAS:

a. Styron LLC ("Slyron") was formed as 11 wholly ov,ncd subsidiary of Dow

on November 10,2009. The formation of Styron was unrelated to llItd independent ofthis action.

36
It occurred after the issuance ofthc 2006-2007 Findings aJld Notice of Violations that fonn the

basis for the settlement embodied in this Consent Decree. On April I, 2010, Dow transferred

certain assets, including the Low Gloss ASS Unit building and most ofthe process equipment

contained therein, to Styron. AI that same time, Dow leased to St)TOn the land where the Low

Gloss AilS Unit is housed. On June 17,2010, Dow sold Styron to Styron's current owner.

Styron operates the process equipment at the Low Gloss ABS Unit; howevcr, through contractual

3IT3ngemenls with Dow, Dow performs all monitoring, repair, training, and other services relating

to LOAR and provides all associated Envirornnent, Health, & Safety consulting services.

b. Slyron wishes 10 cooperate with the United SlaleS!lrtd Dow with respect to

the implementation ofthe Enhanced LDAR Program allhe UJw Gloss ASS Unit.

e. The United States acknowledges th31 Slyron is not1iable for the allegations

asserted in the Complaint in this action or in the Findings and Notice of Violations, all of which

pre-date Styron's creation.

d. Styron denies any and all responsibility for the violations alleged in the

Complainl and in the Findings and Notice of Violations. Styron's agreement to undertake the

obligations in this S~tion ofthe Decree should not be construed as an admission ofliability or a

waiver of any of its rights whatsoever.

60. Obligations

a. By consenting to Section VII ofthis Consent Decree. Styron cenifies that it

has read all ofthe provisions ofthis Consent Decree.

b. For the shorter of: (i) Styron's ownership and/or operalional interest in the

Low Gloss ASS unit; or Oi) lhe duration ofthis Consent Decree, Styron shall cooperate fully with

37
Dow, including but not limited to providing documents, information, access, and/or data, to enable

Dow to perform tile Enhanced LDAR Program at the ww Gloss AaS Unit.

c. Dow's Failure to Substantially Perform the Ell' at the Low Gloss AaS Unit

1. For purposes of Subparagraphs 60.c and 6O.d, the phrases "Failure

10 Substantially Pctiorm the ELI' at the Low Gloss AaS Unit" and "Fail to Substantially Perform

the ELI' at the Low Gloss AaS Unit," shall mean that Dow fails to substantially perform, at the

Low Gloss ASS Unit, the obligations of Paragraphs 13 - 58 ofthis Decree, taking those

obligations !IS a whole. The failure to perform individual obligations, even nwnerous individual

obligations, is not a Failure to Substantially Perform the ELI' at the Low Gloss ABS Unit, unless,

taken !IS a whole, Dow fails to substantially perform the entire Enhanced LDAR Program at the

LowGloss AaS Unit. For failures that are less than a Failure to Substantially Perform the ELI' at

the Low Gloss ASS Unit, the stipulated penalty provisions against Dow in Paragraph 63 ofthis

Decree and any other remedies available to lIle United States against Dow shall apply.

ll. The United Slates shall notify Dow if, in the judgment ofthe United

States, Dow Fails to Subslantially Perfonn the ELI' at the ww Gloss AaS Unit ("Initial Notice").

The United States shall provide a copy ofthis Initial Notice to Styron. Dow shall have a

reasonable opponunity to cure. If, within a reasonable period oftime not to exceed 90 days from

the date ofthe Initial Notice, Dow cures its Failure to Substantially Perform the ELI' at the ww

Gloss Aas Unit, then Dow shall continue to be responsible for compliance "ith the ELI' at the

Low Gloss ABS Unit. If, in the judgment ofthe United States, Dow does not cure its Failure to

Substantially Perform lIle ELI' at the Low Gloss AaS Unit within a reasonable period oftime not

to exceed 90 days, then the United States shall so notify Dow ("Final Notice"). The United States

shall provide a copy ofthis Final Notice to Styron. Upon receipt ofthe Final Notice, Dow no

38
longer shall be responsible for complying ",ith the ELI' at the Low Gloss ABS Unit unless and

until Dow recommences performance ofthe ELP at thc Low Gloss ABS Unit either by consent of

the United StaleS or by Court order. Disputes arising under this provision shall be resolved

pursuant to the dispute resolution provisions ofthis Dcoee.

d. Stuon's ({!Otingent Obligations

t. As soon as practicable alter receipt ofthe Final Notice described in

Subparagraph 6O.c.ii, Styron shall commence performance ofthe ELP at the Low Gloss ABS Unit.

It is expressly recognized that, as 10 the obligation to commence performance "as soon as

practicable," Styron likely will be able to commence performance ofsome obligations sooner Ihan

olht'TS and that each obligation must be considered separately.

11. If Styron seeks to dispute whether Dow has Failed to Substantially

Perform the ELI' at the Low Gloss AilS Unit, Styron shall invoke the dispute resolution provisions

of Section X ofthis Decree by no later than 60 days after receipt ofthe Final Notice.

Notwithstanding the invocation ofthesc provisions, Styron shall be required to commence, ifoo!

yet commenced, andlor continue its performance ofthe ELP at the Low Gloss ABS Unit pursuant

to the requirements of Subparagraph 60.d.i. Styron's performance shall cease only if and when

Dow recommences performance ofthe ELP at the Low Gloss ABS Unit either by the consent of

the United States or by Court order.

111. If Styron is required to commence performance ofthe ELI' at the

Low Gloss ABS Unit pursuant to Subparagraph 60.d.i. Styron shaH have no liability for the

stipulated penalties in SCi:tion VIII ofthis Decree: provided however, that the United States shall

!"t"lain all other rights and remedies it may have against Styron to enforce the ELI'.

39
e. Styron Transfer ofO""nership and/or Operational Interest

l. Except as provided in Subparagraph 6O.e.ii, by the later of: (i) thirty

(30) days prior to Styron transferring its o""nersltip or operational interest in tlte Low Gloss ASS

Unit; or (ii) as soon as practical prior to such transfer, Styron ""ill notify the prospective transferee

ofthis Consent Decrec and provide a COP)'. Styron shall not be relieved of its obligations in

Paragraph 60 unless and until the transferee agrees in v.Titing to asswne the obligations in

Paragraph 60, the United States agrees to the transferee's assumption (which agreement sltall not

be unreasonably withheld), and the United States, Styron, and the transferee file with this Court a

10int Notice of Assumption ofthose Obligations. II is expressly recognized that any such Joint

Notice v.ill also require the transferee to condition any future transfers on the assumption ofthese

same obligations for the duration ofthis Consent Decree.

n. Styron's obligations in Subparagraph 6O.e.i do not apply to a

corporate reorganization that results in the transfer of ov.ncrship or operation ofthe Low Gloss

ASS Unit to an ~Affi1iate~ of Styron. For purposes ofthis provision, "Affiliate"' shall mean a

person that directly, or indirect!y through onc or more intermediaries, controls, or is controlled by,

or is under the common control with. the person specified.

61. Other Provisions. If and only ifStryon is required to commence performance of

the ELP pursuant 10 Subparagraph 6O.d.i, then the follov.ing Se.:tions oflhis Oceree also shall

apply as between the United States and Styron: III (Definitions); IX (Force Majeure); X (Dispute

Resolution); XIV (Notices); XV (Modification); and XVI! (fermjnation), but only v.ith respect to

the Low Gloss AilS Unit. This Court shall retainjurisdietion as sel forth in Section XIV; this

Decree shall have the same Effective Date as SCt forth in Section XV; and this Decree and shall

remain a final judgment as set forth in SC\:tion XXII.

40
VIII. STIPULATEOPENALTIES

62. Failure to Pay Chil fcnally. If Dow fails to pay any portion oflhe civil penalty

~uirtd to be paid under Section IV oflhis Deem: (Ci~il Penalty) wben due, Dow Wll pay.

stIpulated penalty ofs 2500 per day for each day !hat lhe pa)ment is Late. Late pa)1neTIt of me

civil pmally and any accrued stipu1akd penalties shall be made in ~ilh Paragnph 10.

63. fJilure to Men all 0tI!tt Con5m! Deem: ObligllliolU. Dow shall be liable for

Slipulllled pmalties to !hi: United States for violations oflhis Consent Deem: as speo::i1ied in

Table 2 below unless excused under Section IX (Farce Majeure).

T_llIe 2

Violation Stipulated Penalty

63.a. Failure to timely develop a !'criod ofooncompliance Penplty per day

Facility-Wide LDAR Document lIS required iJll<

by Paragraph 14 or failure to timely update the

Document on an annual basis ifneeded I -15days $300

pursuant to Paragraph 14 16-30days 5400

3 I days or more "00

6J.b. Each fai1urc 10 perform monilOring 11 S lOOper component per missed monitoring

tb<' frequrndes s:I foM in Paragraph 15 or, if eo,'ml, IlOIlO exettd $25,000 per month per

applicable. Paragraphs 16 and 11 Co\'t'red Proces.'I Unit

63.c. Each failure 10 comply ....ilh Method 21 MonilOring Penally per monitoring

in p:riormina LDAR monitOl'ifl3, in violatioo frequency c\'rnt DC! 0!Mss unit

of Plr1Igrapb 18 for the component

Enry2)~ S 25.000

""mw S 20,000

Semi-Amlual $ 15,000

Quarterly S 10,000

Monthly , '.000

63.d. For each failure 10 use a monitorins $100 per failure per picce ofequipment

device that is attached to a datak>gger and for monitored

each failure, during each monitoring e\'mt. 10

dire<:tly ele<:tronicaJly record the Screening

Value, date. time, identification number ofthe

41
monitorintt insuummt, and the idmtiftcatioo

oftechnician. in \ iolatioo ofthese

roquimnmts of Paragraph 18

63.e. Each fail~ to transfer mooitorina d.ata 51 SO per day for exb day tIw the transfer is

to lIII ckctronic dar·t IS e on "- least • ""'Cekly I.te

basis, in \iolatioo ofthis requirernenl in

P "

63.f. Each failult' 10 timely perform a fim 5 ISO per day for each late day, not to exceed

auemp! at repair as Tequilt'd by Paragraph 21 5 I500 pericak

or 23, unless not required to do so UIlder

Subparagraph n.d.i or 38.c.i. For purposes

ofthese stipulated penalties, the term "repair"

includes the required remonitoring in

Paragraph 22 after the repair attemp!; the

stipulated penalties in Subpanlgmpb 63.h do

not apply.

63.g. Each failure to timcly perform. final Equipment Pmalty per No< w

Ittempllt re~r as required by Paragraph 21, "'" Com,,,,,,,,, ExcmI

unless not roqllired to do so under rosin late

Subpangntph 32.d.i or J8.d. Forpwposes

ofthese stipulated penalties, the tam "repair'" Vah-es, connecton $300 , 37,500

incluck:s the reqllilt'd remonitoring in Pumps. agitators $1,200 $ 150,000

Pangrapb 22 after the It'pair alIm1Jl'; the

stipulated penalties in Sllbparagraplt 63.h do

not apply.

63.h. Each failure to timely perform Repair Equipment Penalty per Not to

Verification Monitoring as reqllilt'd by """ Component Exc«d

Paragraph 22 in circumstances where the first per day late

aHempt to adjust, or otherwise alter, the piecc

ofequipment to eliminate the leak was made Valvcs, connectors $ ISO , 18,750

""ithin 5 daysand the final attempt to adjust or Pumps. agitators '600 , 75.000

otherY.ise alter, the piece of equipment to

eliminate the leak ...1lS made ...ilbin IS days

63.1. Each failure to llI1dcrtakc the Period of Pmaltypcr

drill-and-tap method as roqllilt'd by no!!CQ!T!pli;mee component per day -" l!!<

Bct...'ttO I and IS da,"S $200

BctW~1I 16 and 30 da}"S $ 350

Over 30 days S 500 per

day for each day

over 30, not to

exceed 537,500

42
63.j. Each failwt: 10 m:ord the information $ 100 per component per item of missed

required by PamgrapIt 25 information

,,>- E.:h improper pJ.au:menl or. piece of

CO'o~ Equipment on the: OOR list (i.e., Equipment Pmalty per No""

p1acina a pica- ofCln~ Equipment on the: - ~"on,," amd

OOR list "'"ell tbougb it is feasible 10 repair it pq day 011 lis ~itbout a process wtit s1tuldov..n)

Vahoe, c:onnc:ctoB SJOO $75,000

Pumps. AgitatOf'S $1200 S3OO,000

63.1. Each failure: 10 comply ~ith the: $250 per piece of Equipment

requirement in Subpw1lgl'8ph 27.a !hal a

relevant unit supervisor or person ofsimilar

authority sign ofTon placing a piece of

Co,'c:rc:d I'r uipment on the: DOR list

Urn. Eai:h failure 10 comply "ith lhc: Refer to the applicablc: stipulnted pc:nalties in

requi«:mcnts of Subparagraph 27.c.(i) Subparagraphs 63.rand 63.8

63.n. Each failure to comply with the Refer to the applicable stipulated pc:nahics in

requirements of Subparagraph 27.e.(ii) Subparagraphs 6J.p - 63.u.

63.0. Each failure: to comply with the: worl; $50 pc:r violation per valve: per day. not to pmctiec: standards in Paragraph 30 exceed SJO.OOO for all valves in a Co"CTed

Process Unit OCT Quart....

63.p. Each failure 10 install a Low-E Vah'e or $ 20,000 per failure. c:xcc:pt 115 pro,idcd in

a ,..Ive (inc:d ..ith Low-E Packing ..ilc:n Parngrup/t 63A below

required 10 do so pur.want to Parag,raph 31

63.q. Each failure, in violation of $500 per day per failure, not to c:xc:eed Subparagraph 32.b, to timc:ly cornply ..ith the

requirements relaling 10 installing a 1.0"'-£ $20.000. except 115 pro,)dcd in Panagtaph 63A

Vahoe or Low-£ Packing if a process Wlit ""~ shuldown is not

""'"

63.r. Each failure, in 'iolation of $20.000 per failure. except: as providal in

Su~ 32.c. 10 install a 1.0".£ Vah'e Panlgmph 63A below

or Low-£ Packing "hen required to do so

durina a Schc:dukd Maintenance:

63.'. Each failure. in violation of $10,000 per failure

PilfUi.r3pn 37, to timely comply with the

requirements relating to replacing or

improving a eOlUlector for any new connector

installatioll

4l
63.t. Each failure. in violalion of

Subparagraph 38.b., 10 timely comply with the $250 per day per failure, not to exceed

requirements relaling to replacing or $10,000 per failure

improving a oonneClor ifthe replacement or

improvement does not require a process unit

shutdown

63.u. Each failure, in violalion of $10,000 per failure

Subparagraph 38.b. to comply with Ihe

requirement~ relating to replacing or

improving a conneclor ifthe replacemem or

improvement requires a process unit sllUldov,'T\

63.v. Each failure 10 add a pie<:e ofCovcred $ 300 per piece ofCovered Equipment (plus

EquipmenllO the LDAR program when an amount, if any. due under Paragraph 63,b

required to do so pursuanl to Ihe evaluation for any missed monitoring event related to a

required by Paragraph 41 (MOC) component that should have been added 10 the

LDAR Program but was not)

63....... Each failure to remove a piece of $ 150 per failure per piece ofCovercd

Covered Equipmcnt from the LDAR program Equipment

.....hen required to do so pursuant to

Para<tranh 41

63.x. Each failure 10 timely develop a $ 50 per day late

trainin" nrotocol as reouired bv P~"rnnh 42

63.y. Each failure 10 perform inilial, $ 1000 per person per monlh late

refresher, or new personnel training as

required by Paragraph 42

63.z. Each failure of a moniloring te<:hnician $100 per failure per tednician

to oomplete the ecnification required in

Paragraph 43

63.aa. Each failure 10 perform any ofthe S1000 per missed requirement per quarter

requirements relating to QNQC in

Paragraph 44

63.bb. Each failure to conduCI an LDAR

audil in accordance wilh the schedule set forth Period of noncompliance Penalty per day in Paragraph 45.

1-15days $300

16-30days $400

31 days or more $500, not to

exceed $100,000

ocr audit

44
63.cc. For the first, third, and fifth audits, 525,000 per audit

each failure to use a third party; each use ofa

third party uuditor that is not e;.;perienced in

LDAR audits; and each use of Dow's regular

LDAR contractor to conduct the third party

audit

63.dd, For the second and fourth LDAR $10,000 per audit

audits, each audit that does not comply with

the reDuirements in Para<>mnh 46

63.ce. Except for the requirement to $100,000 per audit

undenake Comparati~e Monitoring, each

failure to substantially comply with the LDAR

audit requirements in Paral!.mph 47

63.ff. Each failure to substantially comply $50,000 per audit

with the Comparative Monitoring

reouirements of l'araQranh 48

63.gg. Each failure to timely submit a Period of noncompliance Penalty ocr day

Correcti~e Action Plan that substantially ~r ~iQlation

confonns to the requirements ofParagmph SO

1-15days $100

16 - 30 days $ 250

3 I days or more $500

Not to exceed $1 00,000 per audit

63.hh. Each failure to implement a corrective Period of noncompliance Penalty per day

action within three months after the LDAR per violation

Audit Completion Date or pursuant to the

schedule that Dow must propose pursuant to 1-15days $500

Subparagraph 50.b ifthe corrective action 16 - 30 days $ 750

cannot be completed in three months or 31 days or more SJooo

pursuant to an EPA-approved revised schedule

pursuant to Subparagraph 50.d Not to exceed $200,000 per audit

63.ii. Each failure to timely submit a Period of noncompliance Penalty per day

Certification ofCompliance that substantially per violation

conforms to the requirements of Paragraph 5 I

I -15days $100

16 - 30 days S 250

3 I days or morc $500

Not to exceed $15,000

63.jj. Each failure to substantially comply Period of noncompliance Penalty per day

with any recordkeeping, submission, or per violation

reporting requirement in Sections V and VI 1-ISdays $100

not specilically identifi~-d above in this 16·30days $ 250

Table 2, 31 days or more $500

45
63A. Stipulated Penalties in Lieu ofthosc in Subparagraphs 63.p. 63.9. 63.r.

a. For purposes ofthis Paragraph, the tenn "Non-Compliant Valve" llleans a

valve that is either: (i) not a Low-E Valve; or (ii) not filled with Low·E

Packing, The tenn "Compliant Valve" means a valve that is either: (i) a

Low-E Valve; or (ii) fined with Low-E Packing.

b. The stipulated penalties in Subparagraph 63A,e are to be used instead of

those in Subparagraphs 63.p, 63.q, or 63.r when all ofthe following

requirements are met:

I. Dow, and not a government agency, discovers the failure involved;

II. Dow promptly reports the failure to EPA;

Ill. In the report, Dow sets forth a schedule for promptly replacing the

Non-Compliant Valve with a Compliant Valve; provided however,

that Dow shall not be required to undertake an unscheduled

shutdo"'>ll oftile affected Covered Process Unit in proposing the

schedule unless Dow so chooses;

iv. Dow monitors the Non-Compliant Valve once a month from the

time of its discovery until the valve is replaced with a Compliant

Valve and no Screening Values above 100 ppm are recorded;

Dow replaces the Non-Compliant Valve with a Compliant Valve in

ac<:ordance with the schedule set forth in 63A.b.iii; and

VI. Dow demonstrates that in good faith it intended to install a

Compliant Valve but inadvertently installed a Non·Compliant

Valve.

c. The following stipulated penalties shall apply under the circumstances in

Paragraph 63A:

I. In lieu ofthe penalty in Subparagraph 63,p, $2000 per failure.

11. In lieu oftile penalty in Subparagraph 63.q, $50 per day per failure,

not to ex<:eed $2000

Ill. [n lieu ofthe penally in Subparagraph 63,r, $2000 per failure.

64, Stipula!ed Penalties at Low Gloss ABS Unjt. lffor any reason olher than/ora

mojeure, Dow "Fails to Substantially Perfonn the ELP at the Low Gloss ABS Unit," as defined in

46
Plll1lgraph 6O.c, and rtttives« ··Final Notice'· pul1uant to PlIl1Igraph 6O.c.ii. Dow!lha.l1 be liablt

for a stipulakd penalty of$2.000,OOO. This penalty is applicable t\= though StyTOn or a

SUCttUOr company 10 Styron COlJIIlImC(:J compli&llOl: with the obligations of Sections V and VI at

the LowGIoss ADS Unit. Afttrthe datt ofthe Uniled States· receipt ofpa)Tnmt. or afkr the date

that tither Dow or St)TOD invoktS dispute ~lution elairning that Dowdid not Fail to

SUbSUlllliall)· perform the ELP at the Low Gloss ADS Unit. Dow no loIlger shall be liable for any

stipulated penaltitS linder Paragraphs 63 and 63A based upon obligations at the Low Gloss ADS

Unil unless and until the resolution ofany such dispute ~t5 in Dowrecommencing performance

of the ELP at the Low Gloss ADS Unit. In that case, stipulated penalties under PlIl1Igntph 63

again shall be applicable.

65. Waiver ofl'avmenl. The United Slates may, in its unreviewable discretion, reduce

or waive payment ofstipulated ~nuhies otherwise due to it under this Consent Decree,

66. Demand for Stipulate<! Pmallies. A written demand for the payment ofstipulated

penalties "ill identify the panicular violation(s) to which the stipulated penalty relates; the

stipulated penalty an'IOUllt (as can be best estimated) that the United StattS is demanding for each

violation; the cakulatioo mcthod underlying the demand; and the grounds llpon whkh the demand

is based. Prior to i=aing a written demand for stipulated penalties, the United States may. in its

~~ievollble di~on, ronUICI Dow for informal discllSSion of marten thai the Uniled States

believes may merit stipulated penalties.

67. Stipulated Penalti", Acsrual. Stipu.lated penaltics will begin to accrue on the day

ancr pm'onnanct is dut orthe day. violalion occun.. whicM\"cr is applicable:. and will cQOtinue 10

accrue unlil perforTIlllllCC is satisfactorily completed or the violalion ceases. Stipulated penalties

shall acCl\lC simultaneously for separule violuriolU ofthis Consent Dc<;;ree.

47
68. Stipulated Penalties Payment Due pate!Escrow Account fot Paragraph 64

Stipulated Penalties. Except for stipulated penalties due under Paragraph 64, stipulated penalties

shall be paid no later than sixty (60) days after receipt of a "Tilten demand by the Uruted Slates

unless Ihe demand is disputed through compliance with the requirements ofthe dispute resolution

provisions ofthis Decree. Stipulated penalties due under Paragraph 64 shall be paid no laler than

sixty (60) days after receipt ofthe Final Notice described in Paragraph 6O.c.ii unless Dow or

Slyron invokes the dispute resolution provisions oftrus Decree 10 claim thm Dow did 1\01 Fail 10

Substantially Perfonn the ELI' al the Low Gloss AilS Unit. Ifcither Dow or Slyron invokes

dispule resolulion, Dow shall place 52,000,000 into an interest-bearing, commercial escrow

account wilhin 30 days oflhe dispute resolution nOlice ofeither Dow or Styron, as applicable.

Dow shall provide tile United States with a copy ofthe escrow agreement and the statement

showing the deposil oflhe disputed amount into the escrow account. If the resolution ofthe

dispute results in Dow recommencing performance ofthc ELI' at the Low Gloss ASS Unil, all

funds in the escrow account shaH be disbursed 10 Dow. Ifthc resolution oftile dispute results in

Slyron continuing 10 perfonn the ELI' at Ihe Low Gloss ASS Unil, all funds in the escrow account

shall be disbursed 10 the United States.

69. Manner of Payment of Stipulated Penalties. Stipulated penalties owing to Ihe

United Stales of wxIer $10,000 will be paid by check and made payable 10 ·U,S. Department of

Justice," referencing 001 Number 90-5-2-1-08935 and USAO File Number 2008V00788, and

delivered to the U.S. Attorney's Office in the Eastern DiSlriCI of Michigan, 211 W. Fort St.,

Suite 2100, Detroit, MI 48226. Slipulated penalties owing to the Uniled Stales of$IO,OOO or

more will be paid in Ihe manner set forth in SeClion IV (Civil Penalty) ofthis Consent Decree. All

transmitlal correspondence shall state thaI the payment is for stipulaled penalties, shall identify the

48
violations 10 which the pa)·metlt relates. and shall include the same identifying information

required by Panlgraph 10.

70. DisputeS O\"a Stjpulated Pma!ties. By no IateT lhan 60 days after receiving a

demand for stipulated prnaItics, Dow may dispute liabiliry for 8lIy or all $lipulated penalties

demanded by in~~ng the dispulC resolution pioc«lurn of Section X. If Dow fails 10 pay

stipulated pmalties ,,,,ben due and does Il()( prevail in dispute resolution, Dow shall be liable for

inlerest at the nile specified in 28 U.S.C. § 1961. lMXruing as ofthe date paymettt became due.

71. No amounl ofthe stipulated pCTIalties paid by Dow shall be used 10 reduce its

federal lax obligations.

72. Subject to the pro\'isions of Section XII ofthis Consentlkcrce (Effect of

Sen1cmcntIRl:SCT\'ation of Rights), the stipulated penalties provided for in Ihis Decree shall be in

addition to any Olher rights, remedies, or sanctions available to the United Stales for 11 violation of

this Consent Decree or applicable law. In addition to injooctive reliefor stipulated penalties, the

United States may elect 10 seck mitigaling emissions reductions cquallO or areateT!han the excess

amounts emined ifthe violations result in excess emissions. Dow reset'VC$ the riilltto ehallenge

the United Stales' exercise ofIbis option. Where a violation ofthis Consent Decree is also a

\'iolalion ofthe CAA or its implemmtina reauJations.. Dow shall be allowed a crtdit, for lUIy

$lipulated penalties paid. against lUIy statutory pmaities imposed for such violation.

IX. FORero MAJEURE

73. ·F~ Majeure," for purposes ofIbis Consent Dec~, is defined as lUIy e~'ent

bc)"OOd the control of Dow, its conlractors, or any entily controlled by Dow th:lt delays the

perfonnancc ofally obligation under this Consent Decree despile Dow's best effolU 10 fulfill the

obliBJIlion. The requirement that Dow exercise 'best efforts to fulfill the obligation" includes

49
using best effons to anticipate any potential force majeure event and best effons to address the

effects of any such event: (a) as it is occurring; and (b) after it has occurred, to prevent or

minimize any resulting delay.

74. "Force Majeurc' docs not include Dow's finallCial inability to perform any

obligation under this Consent Decree. Unanticipated or increased costs or expenses associated

with the performance of Dow's obligations undcr this Consent Decree shall DOt constitute

circUlll5tanees beyond Dow's control nor serve as the basis for an extension oftime under this

Section IX. Force Majeure also docs not include any impediment to performance caused in whole

or in pan by Dow's lack or limited oWllership and/or lack or limited operation of the Low Glass

ASS unit. An inability to perform the obligations ofthis Consent Decrec at the Low Gloss ABS

unit due!O Dow's lack of or limited OWlICrship and/or lack of or limited operation shaH not

constitute circumstances beyond Dow's control nor serve as tile basis for an extension oftime

under this Section IX.

75. If any event occurs which causes or may cause a delay or impediment to

performance in complying with any provision ofthis Consent Decree, Dow shall notify EPA in

writing promptly but not later than founeen business days after the time Dow first knew or should

have known by the exercise of due diligence that the event might cause a delay. In the written

notice, Dow shall specifically reference this Paragraph 75 ofthe Consent Decree and shall

provide, to the extent such information is available at the time, an el<planation and description of

the reasons for the delay; the anticipated duration ofthe delay; all actions taken or 10 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 ofthe delay; Dow·s rationale for attributing such delay

to a Force Majeure event; and a statement as!O whether, in the opinion of Dow, such event may

50
CllUJC or contribute to an endangennentto public health, welfare or the environment. Dow shall

be deemed to know of any circwnstanec of"hich Dow, any entity controlled by Dow. Of' Dow's

contrKton: kMwor should have kno"TI. The "rinm noticc- required by this Paragraph shall be

effecti,'e upon the mailing oftbe same by o"«night mail or by ceniflCd mail, return ~pt

rcqUieSlCd, 10 EPA in the manner 5e! forth in smion XIV (Notices).

76. Failure by Dow 10 materially comply "'lib the notice requiremetllll specified in

Paragntph 7S shall preclude Dow from assertilli any claim ofF~ Majeure "lib lespett to the

partieular event im'olved, unless the United Sta~ in its unrt"'iewahle discretion, pennits Dow 10

&SSe" a Force MajeuI'C claim with respect 10 the particular C'o·ent.

77, The United Slates shalll'Cspond in writing to Dow I'Cgarding Dow's claim of Force

Majeul'C within 45 days of receipt of the notice requin..>d under Paragmph 75. After this initial

I'Csponse, the parties may confer.

78. If EPA initialI}' or ultimately agrt:e:'lthat the delay or anticipated delay is

allribulable to a Force Majeure event, the time fOI perfonnance oflhe obligll1ions under this

C~I Decree thatart' affected by the F~ Majeure e"ent will be extended by E.PA for such

lime as is necessary 10 complete !bose obligatiOM. An e.~ension ofthe time for performaoce of

the obligat)ons .ffeded by the F~ MajeI= C'o'ent shall not, ofitself, e:<tcnd tIw: time for

perfonT"larlCC' ofany otbet" obligation. 1I0...-ever, Dow may request wtthe lime be e:<!ended for

performance ofany other obligation that is affected by the Force: Majn= e,·enl. EPA ....111 notify

Dow in writilli ofthe knglb ofthe extensioo, ifany, fOI performance ofthe obligations affected by

the Force Majeure e'·enl.

"
79. If EPA does not agree that the delay or anticipated delay has becn or will be caused

by a Force Majeure event, or ifthe parties fail 10 agree on the length ofthe delay attributable 10 the

Force Majeure event, EPA so will notify Dow in writing ofits final decision.

80. If Dow ele<:ts to invoke the dispute resolution procedures set forth in Section X

(Dispute Resolution), it shall do so no later than 45 days after receipt of EPA's notice under

Paragraph 77 (if the parties do not confer after that notice), or UIlder Paragraph 79 (if the panics

confer after the Paragmph 77 notice). In any such proceeding, Dow shall have the burden of

demonstrating by a preponderance ofthe evidence that the delay or anticipated delay has been or

will be caused by a Force Majeure event, that the duration ofthe delay or the el:tension SOUght ....1lS

or will be warranted under the circumstances, that best efforts were exercised to avoid and mitigate

the effects ofthe delay, and that Dow materially complied with the requirements of Paragraphs 73

and 75. If Dow carries this burden. tile delay at issue shall be deemed not to be a violation by

Dow ofthe affected obligation ofthis Consent Decree idcntified to EPA and the Court.

x. mspun: RESOLUTION

81. Unless olherwise el:pressly provided for in this Consent Decree, the dispute

resolution procedures ofthis Se<:tion shall be the exclusiw mechanism to rcsolve disputes arising

under or with respect to Ihis Consent Decree.

82. Informal Dispute Resolution. The first stage ofdispute resolution shall consist of

informal negotiations. The dispute shall be considered 10 have arisen when one Party sends the

other Party a ....Titlen Notice of Dispute. Such Notice of DispUle shall stale dearly thc malter in

dispute. Thc period ofinformal negotiations shall nOI exceed 60 days aftcr the Notice of Dispute,

unless thai period is modified by written agreement. Ifthe Parties cannot resolve the dispute by

informal negotiations, then the position advanced by the United States shall be considered binding

52
unless within 45 days after tht conclusion ofthe infonnal negotiation period, Dow invokes formal

dispute resolution procedures.'lC1 forth below.

13. formal Dispute RewIUlton. Dow shall invoke formal dispute retOlulion

proceduru, ..ithin the lime period provided in the preceding Paragraph. by ~in& on the United

Slates a ",Tinm Slalemml ofPosilion rqarding Ibe matkf in dispute. The Stalemml ofPosilion

shall include, but Deed not be limile<! to, any factual data. analysis, Of opinion $UJlPlX1ing [)ro...·s

posilion and any supporting documentation relied upon by Dow. Dow and lhe Uniled States may

hold lIdditionai di.sl;ussiOlU, which may, in the unreviewable discretion ofeach pany, include

higheT-Ie\'el representalives of one or balh plll1ies.

84. The Uniled Stales shall serve its Slalemcnl of Position within 45 days ofreceipt of

Dow's St31ement of Position. The Uniled Slales' Statemenl ofPosilion shall include, bUI need nOI

be limited to. any factual dala, analysis, or opinion supporting thaI posilion and any supporting

dOCUlll<:nlalion ~lied upon by the Uniled SillIes. 'The United States' Sllltement of Position shall

be bindi"i on Dow unless Dow files a motion for judicial review oftbe dispule in iIl:COfdanee I'oith

the following Paragraph.

g5. Dow may seek judicial ~viewofthedispute by filing with the Coun and snvl"iOn

the United SIaIeS. in IIttOIdancc ..ith Section XIV ofthis Consrnt DrecTtt (Notices). a motion

requesting judicial resolution ofthe dispute. The moIion must be filed ...ithin 60 day1 or~JM

ofthe Uoile<! Slates' Slalement ofPosilion pursuant 10 the ~ing Paragnpb. The motion shall

contain a ..nnen statement of Dow's posilion on the mallt'l'" in dispute, including any supporting

factual dala. analysis, opinion, or documenllltion. and shall set forth the ~tiefreqllCSled and any

schedule ..ithin which the dispule must be resolved for orderly implementation oflhe COrulmt

Decree.

53
86. The United States shall respond to Dow's motion within the time period allowed by

the Local Rules ofthis Coun for responses to dispositive motions. Dow may file a reply

memorandum, to the extent penniued by the local Rules.

87. In a formal dispute resolution proceeding under this Section, Dow shall bear the

burden ofdemonstmting that its position complies with this Consent Decree and the CAA and that

it is entitled to relief under applicable principles of law. The United States reserves the right to

argue that ils position is reviewable only on the administrative record and must be upheld unless

arbitrary and capricious or otherwise not in accordance with law, and Dow reser.·es the right to

argue to the contrlU)·.

88. [Reserved]

89. The invocation of dispute resolution procedures under this Section shall not, by

itself, extend, postpone, or affect in any way any obligation of Dow under this Consent Decree,

unless and until final resolution ofthe dispute so provides. Stipulated penalties ",ith respect to the

disputed matter shall continue to accrue from the first day of noncompliance. but payment shaH be

stayed pending resolution ofthe dispute. If Dow does not prevail on the disputed issue, stipulated

penalties shaH be assessed and paid as provided in Section VIJI (Stipulated Penalties).

XI. INFORMATION COLU:crION AND RETENTION

90. The United States and its representatives and employees shaH have the right of

entry into the Facility. at all reasonable times, upon presentation of credentials and any other

documentation required by law, to:

a. monitor the progress ofactivities required under this Consent Deem:;

b. verify any data or infonnation submiued to the United States in accordance

with the tenns ofthis Consent Decree;
t. obtain documental')' C'>'idrnte. including photographs and similar data,

re~'lIIltlo eomplillllCC with the terms ofthis Consent Ocate; and

d. a:sse:ss Dow's compliance ",ith this Consent ~.

91. Untilone)-eaf afttT termination ofthis ConsmtlXcrec, Dow shall main, and shall

instl'ud its OOIltr.ll:tOB and a,gmts to prC:5(, ,·e. all documents, records. or other information,

reaanlless ofstorage medium (e.g.• paper or IClectronie) in its or its OOIIU1Il:ton' or -emu'

po$SCSSion or control. or that come into its or its contractors' or agents' or control. and

thai. dire<:tly relate to Dow's perl"01'TDlU'ltC ofits obligations lIIlder this Consent Decree. This •

infonnation-retention requiraTll(nt shall apply regardless of any contrary corponllt or institutional

policies or procedures. AI any time during this information·retention period. the United States

may request copies of any documcnts. rt.'tords. or other information required to be maintained

under this Paragraph.

92. EJlcept for emissions data. including Screening Values. Dow may also assen that

infonnation required. (() be provided unde-r this Section is protected as Confidential Business

InfOlTl\lltion ("CBI") under 4{1 C.F.R. PlIl1 2. As to any informalion thai Dow seeks (() protect as

CBI. Dow shall follow the proc-edun::s set fonh in 40 C.F.R. PlIl1 2. ....here applicable. Exeept for

emissions dlIta.. including Sc~ng Values. Dow rexn'es the right (() 85$C'r1 any kgaJ privile-ge

and the United States reserves the rightlo ehallmgc any claim of pri,·iltge.

93. This COllSIent Decree in no way limits or affects any rightofenlfy and il1SpC'Ction. or

any right 10 obtain information, held by the United Stales pursuant to applicable fcdmtl laws..

regulations. or pennits.. nor does it limit or affect any dUly or obligation of Dow to maintain

documents. records. or()(her infol'lllation imposed by applicable- federal or stale La","" regulations.

or permits.

"
XII. EFFECT Of SEITLEI\H:NTIRESERVATION OF RIGHTS

94. This Consent Decree resolves Ihe civil claims ofthe Uniled Stales for Ihe violations

alleged in the Complaint filed in this action and tbe Findings and NOlice of Violalions from the

date Ihose claims accrued through tile Date of Lodging.

95. The Uniled States reservcs all legal and equilable remedies available to enforce the

provisions ofthis Consenl Deeree, excepl as expressly Slated in Paragraph 94. This Consent

Decree shall not be construed 10 limit thc rights oftile Uniled States to obtain penalties or

injunctive relicfunder the CAA, CWA, RCRA or implementing regulations, or under olher federal

laws, regulations, or pennit conditions, cxcepl as expressly specified in Paragraph 94. The

United States further reserves all legal and equitable remedies 10 address any situation that may

present an imminenl and subslantial endangermetll to Ihe public health or welfare or the

environmenl arising at, or posed by, Ihe Facilily, whether relaled to Ihe violations addressed in this

Consent Decree or otherwise.

96, [n any subsequenl administrative orjudicial proceeding initiated by the United

States for injunctive relief, civil penalties, or other appropriate relief relating to Ihe Facility, Dow

shall nOI assen, and may not maintain. any defense or claim based upon the principles of waiver,

res judicata, collateral estoppel, issue precllJ5ion, claim preclusion, claim·splitting, or other

defenses based upon any conlention Ihat the claims raised by the United States in the subsequent

proceeding were or should have been broughl in Ihe instanl case, except with respect to claims Ihat

have been specifically resolved pursuant to Paragraph 94 oflhis Seetion.

97. This Consenl Deeree is not a permit, or a modifiealion of any permit, under any

federal, state, or local lal'.'S or regulalions. Dow is responsible for achieving and mainlaining

compliance ",ith all applicable federal, Slate, and local lav.'S, regulations. and permits and Dow's

"
compliance with this Consent Decree shall be oodefense to any action commenced puDulUIl to any

sllth laws. regulations. or permits. The United States does oot. by its tOn.'leIIl Wthe entry ofthis

Consent Decree, WlIlTllll! or anr in any lnllI\Mr that Dow's compliance with any aspect ofthis

Consent Decree ",ill result in compliance ",ith pro_i5iom ofthe eM, or lOlith any othI:r provisions

offederal, 5!llU', or local laws. regulations, or permits.

98. E:o:cept as expusly provided in Section VII ",itb lespect to Styron. this Consent

Decree does not limit or affect the riihts of Dow or oflhe United States agaiM any third panies

(including Styron). not pany to this Coment 1Xcree. nor does it limit the rights oftbird panics

(including Sl}TOn), not pany to this Consent Det:rec, against Dow, except as otherwise provided by

law.

99. Except as expressly provided in Section VII ....ilh respectlo Styron, this Consent

De<:ree shall nol be construed to create rights in, or gmnt any cause of action to. any third party

(including Styroo) that is not a Pany to tbis Consent Decree.

XIII. COSTS

100. The Panics shalt bear their own costs ofthis llC1ion. including a1~' fen.

cxttpt that the United States shall be entitled to collect the COSUI (includill& atlomt)'S' fte$)against

Dow inclllT'ed in any action to enf(lf1;:lC this Coment Decree or w collect any portion of

the civil penal!)' or any stipulated penalties due but not paid by Do",.

XIV. l"rOOTICES

101. Unless otherwise 5pC'Cified herein. 1Ol-nmc.·cr notifications, submissions. or

communic3liOll5 an: required by this Consent Decree, they shall be made in ",Titini and addressed

to the persons set fonh below. Submission oflwd ropies is required and shall be sufficient to

57
comply with the notice requiremenlS ofthis Consent Decree. The email addresses listed below

are to pennit the submission of courtesy copies.

Notice or submission to the United States:

Chief, Environmental Enforcement Section

Environment and Natural Resources Division

U.S. Departmenl ofJustice

Box 7611 Ben Franklin Station

Washington, DC 20044-7611

Re: DOJ No. 90-5-2-1-08935

Notice or submission to EPA:

Air and Radiation Division

EPA Region 5

77 W. Jackson Blvd. (AE-I7J)

Chicago, IL 60604

Alln: Compliance Tracker

Office of Regional Counsel

EPA Region 5

77 West Jackson Blvd. (C·14J)

Chicago, IL 60604

For courtesy purposes only, electronic copies 10:

loukeris.constantinosUilcpa,gov

Iiszcwski, christinera'epa.gov

Notice or submission to Dow:

Site Leader

The Dow Chemical Company

1790 Building

Washington Street

Midland, Michigan 48674

58
Toby Alaska Threet

C~t

The Dow Chemical Company

1790 Building

Wuhington Shttt

Midland. Mil:higan 48674

NotiCS' or SUbmission to Stvron:

JMOn N, Scott

SI)'/"OO Mlll1llfacturing Sitc LcadnlProdUC1ion I..cadcf

SI)'/"OO LLC

Mi<:higlll1 OpmItions

I3SOI464 Buildings

Midland. Ml 48667

(989) 638-967S

JClIIlifer Berke Levin

Assoeipte Genend Counsel

Environmelltal Health & Safety

Styroll LI.C

1000 Chesterbrook Blvd.

Berwyn, PA 19312

Any Party may, by wrinen IlOtiee to lhe other Pany, change its designated IlOliee reeipiel1t(s) or

notice address(es) provided abo,'e. Notices submiued pu1SWlJIt 10 this Section shall d~med

submitted upon mailing, unless othenoise prlwidcd in lhis C(lfISClIt Dcatt or by mutual ag,rrcmenl

ofthe Panie$ in I'lTiting.

xv, t:rfECfIVE VATE

102. The Effective Date ofthis Consent shall be the dale upon "rueh this

Consent Decree is entered by the Coun or • motion to entCT the COllSellt Decree is granted.,

I'l hicne..·a OIXUl"1I first, 115 recorded on the Court', docket.

59
XVI. RETENTION OF JURISIlICTION

103. The Court shall retain jurisdiction over this case until termination ofthis Consenl

Decree for the purposes ofresolving disputes arising under this Decree, entering orders modifying

this Decrec, or effectuating or enforcing compliance with thc tcrms ofthis Decree.

XVII. MOlliFICATION

104. The tcrms ofthis Consent Decree may be modified only by a subsequent wrillen

agreement signed by thc United States and Dow. Where the modification constitutes a matenal

change to any term ofthis Consent Decree, it shall be effective only upon approval by the Court.

105. Any disputes concerning modification ofthis Decrec shall be resolved pursuant to

Section X oflhi$ Decree (Disputc Resolution); provided, however, that instead ofthe burden of

proof as provided by Paragraph 87, the Party secking the modification bears Ihe burden of

dcmonstrating that it is entided 10 the requested modification in accordance with Federal Rule of

Civil Procedure 6O{b).

XVIII. n:RMfNATION

106. By no sooner than alter complction ofthe filth LDAR audit required pursuant to

Subsection V.K ofthis Decree. Dow may send the United StaleS a Request for Termination ofthis

Consent Decree. In the Request for Termination, Dow must demonstrll1e that it has maintained

. satisfactory compliance with this Consent Decree for the two year period immediately preceding

the Request for Termination. In no event may this Consent Decree be terminated ifthe civil

penalty and/or any outstanding stipulatcd penalties have not been paid. The Request for

Termination shall include all neccssary supporting documentation.

107. Following receipt by the United States of Dow's Request for Termination, the

Parties shall confer informally concerning the Request and any disagreement that the Parties may

60
have as to whether Dow satisfactorily has complied with the requirements for tenninalion. Ifthe

United Slates agrees that the Deeree may be terminated. the Parties shall submit, for the Coun's

apprtl\-.t, ajoint stipulatioo terminatin& the Decree.

108. Ifthe United Swes does MlIl1&1'eC that the Deeree may be terminated, Dow may

in\"Oke dispute raolutiOD under Sec::lion Xofthis Decree. How'ever, Dow shall not in\'Oke

dispute I't'5Olwioo for any dispute regarding tc:nnination until 60 da)'$ after sending its ReqlX5t for

Termination.

XIX. PUBI.JC PARTICIPATION

109. This Consent Decree shall be lodged with the Court for a period of not less than 30

da)'s for public oolice and comment in llCeordance v.ith 28 C.F.R. § 50.7. The: United S1.lltes

reserves the righllo wilhdraw or \\iithhold ils consent ifthe comments regarding Ihe Consent

Decree disdosc facts or considerntions indicating thaI the Consent Decree is inappropriate,

improper, or inadequate. Dow eoru;ents to entry oflhis Coru;enl Decree wilhout further notice.

XX. SIGNATQRIESISERVICr.

t 10. 1lJe tmdcrsigned n::prescntati\es of Dow, Styron, and the Assistant Attorney

General for the En-ironment and Natural Resources Di\'ision ofthe Ikpartmmt ofJustice (or his

or herde:si~)exh ccrtifythal he orshe is fully allthorized to entCl'" into the temu and conditions

ofthis Consent Decree and to execute and ~a1ly bind the Party be or she n::pn:sents to this

document.

III. This Consent Decree may be signed in OOUIIterparu. and its \llIidity shall not be

challenged on that basis.

61
112. Dow agrees no! to oppose entry ofthis Consent Decree by the Court or to challenge

any provision ofthe Decree unless the United States has notified Dow in writing that it no longer

supports entry ofthe Decree.

113. Dow agrees to accept service of process by mail with respect to all mailers arising

under or relating to this Consent Decree and to waive the fonnal service requirements set forth in

Rules 4 and 5 ofthe Federal Rules ofCivil Procedure and any applicable Local Rules ofthis Court

induding, but not limited to. service ofa summons.

XXI. INTEGRATION

114. This Consent Decree and its Appendix constilule the final, complete, and exclusive

agreement and understanding between the Parties with respect to the seulement embodied in this

COt1SC1lI Decree and its Appendix and supersede all prior agreements and understandings, whether

oral or written, concerning the settlement embodied herein. No other documellt, except for any

plans or other deliverables that arc submitted and approved pursuant to tltis Decree. nor any

represelltalion. inducement, agreement, understanding, or promise, constitutes any part ofthis

Decree or the settlement it represents, and no such extrinsic document or slatemcnt of any kind

shall be used in construing the lenus ofthis Decree.

62
XXII. t"INAL JUDGMENT

115. Upon approval and enlry oflhis Consenl Decree by Ihe Court, Ihis Consent ()e(:ree

shall constitute a liMl judgment ofthe Court in this action as to the United Stales and Dow. The

Coun linds tlml there is no just reason for delay and Iherefore enlers this judgment as a liMl

judgmenl ullder Fed. R. Civ. P. 54 and 58.

DATEDlhis dayof 2011.

UNITED STATES DISTRICT JUDGE

EASTERN DISTRICT OF MICHIGAN

6l
We hereby consent to the entry ofthe Consent Decree in the mattcr of United Slates v. The Dow

Chemical Company, subject to public notice and comment.

FOR THE UNITED STATES OF AMERICA

J ACIA S. MORENO

Assistanl Anomey General

Environment and Nalural Resources Division

United Slales Departmenl ofJuslice

ANNETIE M. LANG

Envirorunental Enforcement Section

Envirorunem and Natural Resources Division

P.O. Box 761 1

Washington, D.C. 20044-7611

(202)514-4213

(202) 616-6584 (fax)

anneUe,lang@usdoj.gov

BARBARA L. MCQUADE

United States Atlorney

Eastern Dislricl of Michigan

By:

PETER A. CAPLA~ Assistant United Slates Allomcy

Eastern Districl of Michigan

21 I W. Fon 81" Suite 2001

Detroil, MI 48216

(313)226-9784

P·30643

peter.caplan@usdoj.gov
We hereby oonsc:ntto the entry of the Consent o.:CT« in the matter ofUnjted Sutes v, The Pow

Chemical Company. subject to public lM)\ice and comment,

FOR THE UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

CYNT llA

Assis t A mmlstralOT

Office 0 nforcement ond Compliance Assurance

U,S, Environment.al Protection Agency

1200 Pennsylvania Avenue, N.W.

Washington, DC 20460

-t ADAM M. KU ER

Director

Office ofCivil Enforcement

Office ofEnforcemem and Compliance Assurance

U.S. Environmentall'rotection Agency

1200 Pennsylvania Avenue, N.W,

Washington, DC 20460
We hereby consent to the entry of the Consent Decree in the matter of United StaleS v, The Dow

Chemical Company, subject (0 public notice and comment.

FOR THE UNITED STATES ENVIRONMENTAL

PROreCfION AGENCY

-_._-----

ROBERT A. KAPLAN

Regional Counsel

U.S. Environmental Prot~tion Agency

Region 5

Chicago, LL

SUSAN HEDMAN

Regional Administrator

U.S. Environmental Protection Agency

Region 5

Chicago, IL
Wo h<JrlJy 001I10'" '" tho 0"'1)' '" ,he COIllOnI 00<... in ,he m""" of Uniltd Sla!r' y, Tho Pow

Chemjql ComlWly

EARL SHIPP

Vice Prnid<nl

Dow Chemical Michigan OpoJ:ilionl

Tho Dow Chemial Company

1790 Bnildi"ll

W"",ingtoo Street

Midland, Michig... 48674
By executing this document, we hereby consent only to Section VII ofthis Consent Decree in the

mailer of United States v. The Dow Chemical Company.

FOR STYRON LLC

JASON N. SCOTI

Styron ManufllCluring Site LeaderlProduetion l<::ader

Styron LLC

Michigan Operations

13501464 Buildings

Midland, MI 48667

(989) 638-9675
APPENDIX A
APPENDIX A

Facton to be Considered and l'rocedures to be followed

To Claim Commcr£ial UnaVllilability

This Appendix outlines the factol'S to be taken into consideration and the procedures to be

Followed For Dow to assen thm a ww-E Valve or ww-E Packing is "commerdaHy unavailable"

pUl'SUilnt to Paragraph 34 ohhe Consclll Decree.

I. Jo'ACroKS

A. Nothing in this COl15Cnt Decree or this Appendix requires Dow to utilize any valve or

packing that is not suitable for its intended usc in a Covered Process Unit.

B. The following fac·tors are relevant in detennining whether II Low·E Valve or Low-E

Packing is commercially available to replace or repack an existing valve:

I. Valve type (e.g.. ball. gate, butterfly, needle) (this ELI' docs not require

consideration of a different t)'pe of valve than the type that is being replaced)

2. Nominal valve sizc (eg. 2 inches, 4 inches)

3. Compatibility of materials ofconstruction with process chemistry

4. Valve operating conditions (e.g.. temperature, pressure)

5. Service life

6. Packing friction (e.g., impact on operability of valve)

7. Whether the valve is part of a packaged system or not

8. Retrofit requirements (e.g" re·piping or space limitations)

9. Other relevant considerations

C. The following factors may also be relevant, depending upon the process unit or

equipment where the valve is located:

10. In cases where the valve is a component ofequipment that Dow is licensing or

leasing from a third pany, valve or valve packing specifications identified by

the lessor or licensor ofthe equipment of which the valve is a component

11. Valve or valve packing vendor or manufacturer recommendations for the

relevant process unit components.
II. PROCEDURES T1IAT DOW SIIALL FOLLOW TO ASSERT COMMERCIAL

UNAVAILABILITY

A. Dow shall comply with the following procedures ifit seeks to assert commercial

unavailability under Paragraph 34 oflhe Consent Decree:

I, Dow must COnlact a reasonable number of vendors of valves or valve packing

thaI Dow, in good faith, believes may have valves or valve packing suitable for the intended use

taking into account the relevant factors listed in Section I above.

a. For purposes ofthis Consent Decree. a reasonable number of vendors

presumptively shall mean no less than three.

b. lffewer than three vendors are contacted, the detcnnination of whether

such fewer number is reasonable shall be based on Factors (10) and

(I \) or on a demonstration that fewer thallthree vendors olTer valves or

valve packing considering Factors (I) - (9).

2. Dow shall obtain a wrinen representation from each vendor, or equivalent

documentation, that a particular valve or valve packing is not available as "Low-Emissions" from that

vendor for the intended conditions or use.

a. "Equivalent documentation" may include e-mail or other

correspondence or data showing that a valve or valve packing suitable for the intended use does not

meet the definition of"Low-E Valve" or "Low-E Packing" in the Consent Dt.'<Oree or that the valve or

packing is not suitable for the intend~'d use.

b. Ifthe vendor does not rcspond or refuses to provide documentation,

"equivalent documentation" may consist ofrecords of Dow's attempts to obtain a response from the

vendor.

3. Each Compliance Status Report required by Section VI ofthe Consent Decree

shall identify each valve that Dow otherwise WIIS required to replace or repack, but for which, during

the time period covered by the Report, Dow detennined that a Low-E Valve and/or Low-E Packing

was not commercially-available. Dow shall provide a complete explanation ofthe basis for its claim

ofcommercial unavailability, including, as an attachment to the Compliance Status Report, all

relevant documentation. This report shall be valid for a period oft,",-clve months from the date ofthe

report for the spedfic valve involved and all other similar valves, taking into account the factors listed

in Part I.
III. OPTIONAL EPA REVIHV OF DOW'S ASSERTION OF COMMERCIAL

UNAVAiLABILITY

A. At its option, EPA may review an assertion by Dow ofcommercial unavailabilily. If

EPA disagrees with Dow's assertion, EPA shall nolify Dow in ....Tiling, specifying the Low-E Valve

or Low-E Packing thaI EPA believes 10 be commercially available and the basis for its view that such

valve or packing is appropriate taking into eonsideralion the Factors described in Part i. Aftcr Dow

receives EPA's nOliee, the following shall apply:

I, Dow shall not be required to retrofit the valve or valve packing for which il

asserted commercial unavailability (unless Dow is otl>erwise required to do so pursuanlto another

provision oflhe Consent Decree).

2. Dow shall be on notice thaI EPA will not accepl a future assertion of

commercial unavailabilily for: (i) the valve or packing thaI was lhe subjecl ofthe unavailability

assertion; and/or (ii) a valve or packing that is similar to the subject assertion, taking into account the

Factors described in l'art I.

3. If Dow disagrees with EPA's nOlifieation, Dow and EPA shall informally

diS/.:uss the basis for the claim of commercial unavailability. EPA may thereafter revise its

determinalion, if necessary.

4. If Dow makes a subsequent commercial unavailability claim for the same or

similar valve or packing that EPA previously rejected, and the subsequent claim also is rejected by

EPA, Dow shall retrofit the valve or packing wilh the commercially available valve or packing unless

Dow is suuessful under Subsection m.B below.

B. Any disputes under this Appendix first shall be subject to informal diS/.:ussions

between Dow and EPA for a period not to exceed 60 days before Dow shall be required to invoke the

Dispute Resolution provisions of Section X ofthe Consent Decree. Thereafter, iftl>e dispute

remains, Dow shall invoke the Dispute Resolution provisions.