Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 1 of 60

IN TIlE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA and

STATE OF LOUISIANA,

Plaintiffs,

v.

MOSAIC FERTILIZER, LLC,

Defendant.

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Civil Action No. 09·6662

Section: I'D"

Magistrate: (2)

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CONSENT DECREE
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TABLE OF CONTENTS

I. .nJRISDICTION AND VENUE 3

II. APPLICABILITY 4

III. DEFINITIONS 5

IV. COMPLIANCE SCHEDULE AND REQUIREMENTS 10

V. ENVIRONMENTAL MITIGATION PROJECTS 19

VI. PERMITS....................•...........••................................•.........•...•.....••...20

VII. REPORTING REQUIREMENTS 24

VIII. CIVIL PENALTy 27

IX. STIPULATED PENALTIES 27

X. FORCE MAJEURE 37

XI. DISPUTE RESOLUTION 41

XII. INFORMATION COLLECTION AND RETENTION 43

XIII. EFFECT OF SETTLEMENTIRESERVATION OF RIGHTS 4S

XIV. COSTS 46

XV. NOTICES 47

XVI. EFFECTIVE DATE 48

XVII. RETENTION OF JlJRISDICTION 48

XVIII. MODIFICAnON 49

XIX. TERMINATION 49

XX. PUBLIC PARTICIPATION 50

XXI. SIGNATORIES/SERVICE 51

XXII. INTEGRATlON 51

XXIII. FINAL JlJDGMENT 51
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 3 of 60

WHEREAS, PlaintiffUnited States of America, on behalf ofthe United States

Envirorunental Protection Agency and the State of Louisiana, on behalf ofthe people ofthe State

ofLouisiana and the Louisiana Department ofEnvirorunental Quality ("LDEQ"), have filed a

complaint concurrently with this Consent Decree, alleging that Defendant Mosaic Fertilizer,

LLC ("Mosaic" or "Defendant"), violated Sections 111 and 165, 42 U.S.C. §§ 7411 and 7475, of

the Clean Air Act ("CAA" or "Act"), 42 U.S.C. § 7401 et seq.;

WHEREAS, the Complaint against Mosaic alleges that Mosaic constructed,

reconstructed or modified the A Train and the D Train Sulfuric Acid Plants at a facility owned

and operated by Mosaic in Uncle Sam, Louisiana ("Uncle Sam Facility") without obtaining

required pennits, installing required control teclmology, meeting emission limits, and complying

with requirements for monitoring, record-keeping and reporting, as specified in the Act;

WHEREAS, Mosaic has agreed to reduce sulfur dioxide ("S02") emissions from the A

Train and the D Train Sulfuric Acid Plants to levels no greater than emission levels at least

equivalent to those that would result from the use ofBest Available Control Technology

("BACT"), as defined at 40 C.F.R. § 52.21(b)(12);

WHEREAS, Mosaic currently plans to install an Amine Based Regenerative Gas

Absorption System on the A Train and improve the existing dual absorption system on the D

Train to meet the emission limitations required by this Consent Decree. Regardless ofthe

control technology Mosaic uses, Mosaic must meet the limits included in this Consent Decree;

WHEREAS, Mosaic has decided, for independent business reasons, to cease operation of

the Mulberry Sulfuric Acid Plant and shall, within six (6) months ofthe Effective Date ofthis

Consent Decree, pennanently tenninate operation ofthe Mulberry Sulfuric Acid Plant;

WHEREAS, the Parties anticipate that after full implementation, compliance with the

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emission limitations required by this Consent Decree will result in a reduction in emissions of at

least 7,612 tons ofS02and 4.5 tons ofsulfuric acid mist annually;

WHEREAS, Mosaic does not admit any liability arising out ofthe acts or omissions

alleged in the Complaint and this Consent Decree resolves all allegations stated in the United

States' and State Plaintiffs Complaint. Nothing in the Complaint or this Consent Decree, nor

the execution and implementation ofthis Consent Decree, shall be treated as an admission or

evidence of any violation ofthe Act and implementing regulations cited herein in any litigation

or forum whatsoever, provided that the terms ofthis Consent Decree may be used in any action

or dispute resolution proceeding to enforce the terms ofthis Consent Decree;

WHEREAS, Mosaic has worked cooperatively with the United States and the State

Plaintiffto structure a comprehensive program that will result in significant reductions ofS02

emissions annually from its operation in Louisiana; and

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

that this Consent De~ree has been negotiated by the Parties in good faith, will avoid litigation

among the Parties and that this Consent Decree is fair, reasonable, and in the public interest;

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

admission of any issue offact or law except as provided in Sections I and II below, and with the

consent ofthe Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows:

I. JURISDICTION AND VENUE

I. This Court has jurisdiction over the subject matter ofthis action, pursuant to 28

U.S.C. §§ 1331, 1345, and 1355, and Section 1l3(b) ofthe Act, 42 U.s.C. § 7413(b), and over

the Parties. Venue lies in this District pursuant to Section 113(b) ofthe Act, 42 U.S.C. §

7413(b), and 28 U.S.C. §§ 1391(b) and (c) and 1395(a), because some ofthe violations alleged

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in the Complaint are alleged to have occurred in, and Defendant conducts business in, this

judicial district. Solely for purposes ofthis Consent Decree and any action to enforce this

Consent Decree, Defendant consents to this Court'sjurisdiction over the Defendant and any

action to enforce this Consent Decree, and to venue in this judicial district. Except as expressly

provided for herein, this Consent Decree shall not create any rights in or obligations of any Party

other than the Plaintiffs and Defendant.

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

claims upon which relief may be granted pursuant to Sections 111 and 165 ofthe Act, 42 U.S.C.

§§ 7411, 7475 andlor porsuant to state law.

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

as required by Section 113 ofthe Act, 42 U.S.C. § 7413.

II. APPLICABILITY

4. The o,bligations ofthis Consent Decree apply to and are binding upon the United

States and the State Plaintiff, and upon Defendant and its successors, assigns, or other entities or

persons otherwise bound by law.

5. At least 30 days prior to any transfer of ownership or operation ofthe Uncle Sam

Facility or any Sulfuric Acid Plant at the U~cle Sam Facility to an entity unrelated to Defendant,

Defendant shall provide a copy ofthis Consent Decree to the proposed transferee and shall

simultaneously provide written notice ofthe prospective transfer to the United States and to the

State Plaintiff, in accordance with Section XV ofthis Decree (Notices). The time period set out

in this Paragraph may be shortened by agreement ofthe Parties. Any transfer ofownership or

operation ofthe Uncle Sam Facility, or any portion thereof, without complying with the

foregoing notice requirements constitutes a violation ofthis Consent Decree. No such transfer,

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whether in compliance with the notice requirements ofthis Paragraph or otherwise, shall relieve

Defendant ofits obligations under this Consent Decree, unless:

a. the transferee agrees in writing-to undertake the obligations required by this

Consent Decree with respect to the Uncle Sam Facility, and to intervene as a Defendant in this

action for the purpose of being bound by the applicable tenns ofthis Consent Decree;

b. the transferee provides the United States and the State Plaintiff with

information sufficient to demonstrate that the transferee has the technical and financial means to

comply with the applicable obligations ofthis Consent Decree; and

c. The United States consents in writing to substitute the transferee for

Defendant with respect to such obligations.

6. In any action to enforce this Consent Decree, Defendant shall not raise as a defense

the failure by any ofits officers, directors, employees, agents, or contractors to take any actions

necessary to comply with the provisions ofthis Consent Decree.

111. DEFINITIONS

7. Terms used in this Consent Decree that are defined in the Act or in federal and state

regulations promulgated pursuant to the Act shall have the meanings assigned to them in the Act

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

below are us~d in this Consent Decree, the following definitions shall apply:

a. "100% Sulfuric Acid Produced" shall mean the stoichiometric quantity of

sulfuric acid that would be produced at a Sulfuric Acid Plant if all sulfur trioxide (SO,) exiting

the converter were used to produce sulfuric acid monohydrate. For purposes ofthis definition,

scrubber byproduct (if any) shall be considered to be included in "100% Sulfuric Acid

Produced".

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b. "A Train" shall mean the Sulfuric Acid Plant at the Uncle Sam Facility with

LDEQ Identification ("!.D.") Number EQT 67.

c. "Acid mist" shall mean the pollutant sulfuric acid mist as measured by

Method 8 of 40 C.F.R. Part 60 Appendix A consistent with 40 C.F.R. § 60.81(b).

d. "Amine Based Regenerative Gas Absorption System" shall mean an S02

pollution control technology that utilizes a regenerative aqueous amine solution to absorb S02

from Sulfuric Acid Plant tail gas, stearn strips S~ from the amine solution, and produces a

concentrated S02 stream that is fed into the Sulfuric Acid Plant converter.

e. "CEMS" or "Continuous Emission Monitoring System" shall mean the total

equipment, required under the CEMS Plan attached as Appendices B and C to this Consent

Decree used to sample and condition (if applicable), to analyze, and to provide a peImanent

record of emissions or process parameters.

f. "CEMS Plan" shall mean one ofthe CEMS Plans for the A Train and 0 Train

that are attached in Appendices B and C, respectively.

g. "Complaint" shall mean the Complaint filed by the United States and the State

Plaintiffin this action.

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

appendices attached hereto, but in the event of any conflict between the text ofthis Consent

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

i. "D Train" shall mean the Sulfuric Acid Plant at the Uncle Sam Facility

designated by LDEQ !.D. Number EQT 74.

j. "Day" shall mean a calendar day lUlless expressly stated otherwise.

k. "Defendant" shall mean Mosaic Fertilizer, LLC.

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1. "E Train" shall mean the Sulfuric Acid Plant at the Uncle Sam Facility

designated by LDEQ J.D. Number EQT 76.

m. "Effective Date" shall have the· meaning given in Paragraph 86.

n. "LDEQ" shall mean the Louisiana Department ofEnviromnental Quality.

o. "Long-Tenn Limit" shall mean a 365-day rolling average sulfur dioxide

emission limit expressed as pounds ofsulfur dioxide emitted per ton ("lb/too") of 100% Sulfuric

Acid Produced. Compliance with the Long-Tenn Limit shall be detennined each day in

accordance with the CEMS Plan for the D Train attached to this Consent Decree as AppendixC.

The Long-Term Limit applies at all times, including during periods ofStartup, Shutdown and

Malfunction.

p. "Malfunction" shall mean, consistent with 40 C.F.R. § 60.2, any sudden,

infrequent, and not reasonably preventable failure ofair pollution control equipment, process

equipment, or a process to operate in a nonnal or usual manner, but shall not include failures that

are caused in part by poor maintenance or careless operation.

q. "Mass Cap" shall mean the maximum amount of S02 emissions for each

Sulfuric Acid Plant expressed in tons ofS02 emitted during each 12-month period consisting of

the most recently concluded month and the eleven months immediately preceding it. In

determining compliance with the Mass Cap in accordance with the CEMS Plan for A Train and

D Train, all S02 emissions from a Sulfuric Acid Plant, including Startup, Shutdown and

Malfunction shall be counted.

r. "Month" shall mean calendar month.

s, "Mulberry Sulfuric Acid Plant" shall mean the Sulfuric Acid Plant located at

3200 Highway 60 West, Bartow, FL 33830 designated in Mosaic's Bartow Facility Title V

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Operating Permit as Emission Unit 054.

1. "NSR" shall mean a program for new source review under the Act.

Specifically, "non-attainment NSR" and "major NSR" as used herein refer to the non-attainment

area new source review program within the meaning of Part D ofSubchapter I ofthe Act, 42

U,S.C. §§ 7501-7515; 'Iminor NSR" as used herein refers to any state, regional or local statutes,

ordinances or regulations calling for review and approval of non~majornew and modified

sources of air pollution.

u. "NSPS" shall mean the standards ofperfonnance for new stationary sources

codified at 40 C.F.R. Part 60. General NSPS requirements are codified at 40 C.F.R. Part 60,

Subpart A. NSPS requirements specifically for Sulfuric Acid Plants are codified at 40 C.F.R.

Part 60, Subpart H.

v. "O&M Plan" shall mean the operations and maintenance plan for the A Train

and D Train that is attached in Appendix A.

w. "Operating Period" shall mean periods in which elemental sulfur is being fed

to the furnace and periods ofShutdown.

x, "Paragraph" shall mean a portion ofthis Consent Decree identified by an

Arabic numeral.

y. "PSD" shall mean the attainment area new source review program (prevention

ofsignificant deterioration) within the meaning of Part C ofSubchapter I ofthe Act, 42 U.S.C.

§§ 7470-7492.

z. "Parties" or "Party" shall mean the United States, the State ofLouisiana and

Mosaic or anyone ofthem.

aa. "ppm" shall mean parts per million by volume, dry basis.

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bb. "Section" shall mean a portion ofthis Consent Decree identified by an upper

case roman numeral.

cc. "Short-Term Limit" shall mean a 3-hour rolling average S02 emission limit

expressed as pounds ofS02 emitted per ton of 100% Sulfuric Acid Produced. Compliance with

the Short-Term Limit shall be calculated in accordance with the CEMS Plans attached to this

Consent Decree as Appendices B and C. The Short-Term Limit does not apply during periods of

Startup, Shutdo"WIl, or Malfunction.

dd. "Shutdown" shall mean the cessation of operation of a Sulfuric Acid Plant for

any reason. Shutdo"WIl begins at the time the feed of elemental sulfur to the furnace ceases and

ends 3 hours later or when the blower is turned off, whichever is earlier.

ee. "S02" shall mean the pollutant sulfur dioxide.

ff. "Startup" shall mean, with respect to either Sulfuric Acid Plant, the period of

time, beginning when the feed of elemental sulfur to the furnace commences and lasting for no

more than 4 hours.

gg. "State Plaintiff' or "State" shall mean the State ofLouisiana.

hh. "Subparagraph" shall mean a portion of a Paragraph ofthis Consent Decree

identified by a lower case Roman letter.

ii. "Sulfuric Acid Plant" or "Plant" shall mean a process unit engaged in the

production ofsulfuric acid and related products using the contact process at Mosaic's Uncle Sam

Facility.

jj. "Title V Pennit" shall mean a pennit required by or issued pursuant to the

requirements of42 U.S.C. §§ 7661 -766If.

kk. "Ton" or "Tons" shall mean short ton or short tons.

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II. "Uncle Sam Facility" shall mean Mosaic's Facility located at 7250 Highway

44, Uncle Sam, St. James Parish, Louisiana 70792.

mm. "United States" shall mean the United States of America, acting on behalf of

U.S. EPA.

on. "U.S. EPA" shall mean the United States Enviromnental Protection Agency

and any ofits successor departments or agencies.

IV. COMPLIANCE SCHEDULE AND REQUIREMENTS

8. A Train: Mosaic shall equip the A Train with an emissions control technology

designed to comply with an S02 Short-Tenn Limit of 1.0 lb/ton. The A Train shall comply with

the following S~ emission limits and schedules:

a. No later than JlUle 1, 2011, the A Train shall meet an S02 Short-Tenn Limit

of 1.5 Iblton.

b. No later than June 1, 2011, during any Startup, the A Train shall meet an SO,

limit of 500 ppm averaged over the 4-hour Startup period.

c. No later than June 1,2011, the A Train shall be subject to a Mass Cap of603

tons of S02. Defendant shall demonstrate compliance with this Mass Cap as ofMay 31,2012

(for the 12-month period ofJune 2011 through May 2012) and thereafter as ofthe last Day of

each month for the immediately preceding consecutive 12-month period, in the manner specified

in the CEMS Plan for the A Train.

d. Mosaic shall have a demonstration period from ]lUle I, 2011 ending no later

than January 31, 2013 lUlder which it will operate the A Train and demonstrate the capabilities of

the emission control technologies installed in accordance with this Paragraph. Mosaic shall

provide updated infonnation regarding the status ofthe demonstration period in its semi-annual

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Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 12 of 60

reports submitted pursuant to Subparagraph 25.b,

e, No later than May 1,2013, the A Train shall meet an S02 Short-Tenn Limit

of 1,0 lb/ton except as otherwise specified in Subparagraph 8.g.

f. No later than May 1, 2013, the A Train shall be subject to a Mass Cap of402

tons of S02 except as otherwise specified in Subparagraph 8.g, Defendant shall demonstrate

compliance with this Mass Cap on April 30, 2014 (for the 12~month period ofMay 1,2013

through April 30, 2014); and thereafter as ofthe last Day of each month for the immediately

preceding consecutive 12-month period. In the interim period ofMay 2013 to March 2014, the

A Train shall comply with the monthly Mass Caps specified in Appendix D.

g, If Mosaic elects to comply with this Paragraph 8 by installing an Amine

Based Regenerative Gas Absorption System on the A Train and, through the demonstration

period specified in Subparagraph d above, Mosaic determines that it is technically infeasible,

using the Amine Based Regenerative Gas Absorption System, to meet the Short-Term Limit of

1.0 lb/ton in Subparagraph 8.e above, Mosaic may propose to U.s, EPA and LDEQ less stringent

emission limits. Mosaic's proposal for less stringent emission limits must be submitted no later

than March 31, 2013; otherwise, Subparagraphs 8.e and 8.fwill remain in full force and effect.

If Mosaic elects to invoke this Subparagraph, Mosaic will propose a Short-Term Limit, and U,S.

EPA in consqltation with LDEQ will evaluate the proposal and either approve Mosaic's proposal

or establish a Short-Term limit in the following manner:

I. Mosaic shall propose a Short-Term Limit that reflects the lowest

feasible emission rate from the A Train using the Amine Based Regenerative Gas Absorption

System in accordance with the manufacturer's specification and recommendation for operation,

but is in no event greater than 1.5 lb/ton. Mosaic will also propose a Mass Cap that is less

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stringent than the Mass Cap in Subparagraph f above by the same proportion as the proposed

Short-Tenn Limit is less stringent than 1.0 Ib/ton and will propose proportional adjustments to

the interim Mass Caps in Appendix D (e,g., if Mosaic proposes a Short-Term Limit of20%

greater than 1.0 lb/ton, which equals 1.2 lb/ton, it will propose a new Mass Cap ofno more than

20% greater than 402 tons, which equals a 485 ton Mass Cap).

ii. Mosaic's proposal shall include a written technically infeasible

demonstration report that discusses the results ofthe demonstration period. In the technically

infeasible demonstration report, Mosaic shall present its evidence that it is technically infeasible,

using the Amine Based Regenerative Gas Absorption System in accordance with the

manufacturer's specifications and recommendations for operation, to meet a Short-Term Limit of

1,0Ib/ton, In the technically infeasible demonstration report, Mosaic shall include:

A) a detailed description, in engineering terms, why a Short-Tenn

Limit of 1,0 lb/ton is technically infeasible on the A Train and why the proposed less stringent

emission limit is the lowest feasible emission rate;

B) a detailed description ofthe relevant events leading up to

Mosaic's determination that a Short-Term Limit of 1,0 Ib/ton is technically infeasible and that

the proposed less stringent emission limit is the lowest feasible emission rate, along with all

related correspondence with technology vendors, contractors, or consultants along with any

supporting documentation;

C) a description of all efforts taken by Mosaic or its technology

vendors, contractors, or consultants to achieve compliance with a Short-Term Limit of 1.0 Ib/ton;

D) a description ofall potential remedies considered by Mosaic

and/or its technology vendors, contractors, or consultants to bring the A Train into compliance

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with a Short-Term Limit of 1.0 Ib/ton;

E) all CEMS data from the demonstration period; and

F) justifications for the proposed alternative limit, including why

it is the most stringent technically feasible limit.

iii. After an opportunity to review Mosaic's request for a less stringent

Short·Term Limit and corresponding Mass Cap, U.S. EPA, after consultation with LDEQ. may

request, in writing within thirty (30) days ofreceiving Mosaic's request, any other information

U.S. EPA deems necessary in order to evaluate Mosaic's request for less stringent emission

limits. IfU.S. EPA requests additional information, Mosaic will provide such information

within thirty (30) days or such other period as agreed upon by the Parties. Within sixty (60) days

ofthe later of (a) receiving Mosaic's request, or (b) receiving from Mosaic the additional

infonnation U.S. EPA requested (if any) after receipt ofMosaic's request, or such other period as

agreed upon by the Parties, U.S. EPA, after consultation with LDEQ, shall approve or

disapprove the proposed Short~Term Limit and corresponding Mass Cap in writing. IfU.S. EPA

disapproves Mosaic's proposed Short-Tenn Limit and corresponding Mass Cap. U,S. EPA will

provide written notice to Mosaic in accordance with Section XV establishing the Short-Term

Limit and corresponding Mass Cap, but in no event will U.S. EPA require a Short-Tenn Limit

below 1.0 lb/!on or a Mass Cap below 402 tons. U.S. EPA will also establish a proportional

Mass Cap and interim Mass Caps, as described in Subparagraph 8.g.i. U.S, EPA will base its

decision to approve or disapprove any Short-Tenn Limit and corresponding Mass Cap proposed

by Mosaic or to establish any Short-Tenn Limit less stringent than 1.0 Ib/ton and corresponding

Mass Cap less stringent than 402 tons on whether more stringent emission limits are technically

infeasible using the Amine Based Regenerative Gas Absorption System based on the criteria

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specified in Mosaic's proposal under Subparagraph 8.g.i. consistent with production levels

allowable under this Consent Decree.

iv. Mosaic shall comply with its proposed limits upon submission ofits

technically infeasible demonstration report and until it is required to comply with the emission

limits established by U.S. EPA pursuant to Sobparagraph 8.g.

v. Within thirty (30) days ofreceipt ofthe written notice specified under

Subparagraph 8.g.iii, the A Train shall be subject to the EPARapproved or established emission

limits. IfMosaic disagrees with U.S. EPA's established Short-Term Limit, it shall invoke

dispute resolution, pursuant to Section XI, within the same thirty (30) day period or such other

period as agreed upon by the Parties.

9. D Train: Beginning no later than October I, 20II, the D Train Sulfuric Acid Plant

shall meet the following SOz emission limits, as follows:

a. a Long-Term Limit of2.2lb/ton. Mosaic shall commence monitoring its S02

emissions from D Train as of October 1, 2011, in accordance with the CEMS Plan for the D

Train, but shall have until October 1,2012, to demonstrate compliance with this LongRTerm

Limit (for the 12-month period of October 1, 2011 through September 30, 2012);

b. a Mass Cap of 884 tons. Mosaic shall demonstrate compliance with this Mass

Cap as of Octoher 1, 2012 (for the 12-month period of October 1, 2011 through September 30,

2012); and thereafter as ofthe first of each month for the immediately preceding consecutive 12-

month period, in the manner specified in the CEMS Plan for the D Train; and

c. a Short-Tenn Limit of3.5Ib/ton.

10. Acid Mist Emission Limits: The A Train shall comply and the D Train shall continue

to comply with the NSPS, Subpart H sulfuric acid mist emission limitation of 0.15 Iblton of

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100% Sulfuric Acid Produced, as set forth at 40 C.F.R. § 60.83, no later than the Date ofBntry.

Compliance with this limit is to be demonstrated using the performance test required by 40

C.F.R. Part 60, Subpart H.

11. NSPS Applicability: No later than June 1,2011, A Train shall be considered to be an

affected facility for purposes ofthe NSPS, 40 C.F.R. Part 60, Subpart H. D Train shall continue

to be considered an affected facility for purposes ofthe NSPS, 40 C.F.R. Part 60, Subpart H.

Upon NSPS applicability, each Sulfuric Acid Plant shall comply with all applicable requirements

for affected facilities under the NSPS 40 CF.R. Part 60, Subparts A and H, or with the

requirements ofthis Consent Decree (ifmore stringent). Satisfactory compliance with notice and

compliance demonstration obligations set forth in this Consent Decree shall be deemed to satisfy

all applicable initial notification and compliance demonstration requirements ofNSPS Subparts

A and H.

12. Best Practices: At all times after the Effective Date ofthis Consent Decree, including

periods ofStartup, Shutdown, and Malfunction. Defendant shall to the extent practicable

maintain and operate each ofits Sulfuric Acid Plants, including associated air pollution control

equipment, in a manner consistent with good air pollution control practices for minimizing

emissions, consistent with 40 C.F.R. § 60.1 1(d).

13. Q.•& M Plans: Mosaic shall implement the O&M Plan for A Train no later than June

1, 2011 and for the D Train no later than October 1, 2011. The O&M Plans describe the

operating and maintenance procedures necessary to: (i) minimize the frequency of Sulfuric Acid

Plant Shutdowns (thereby reducing the nwnber of Startups of each Sulfuric Acid Plant); and (ii)

to the extent practicable, maintain and operate each ofits Sulfuric Acid Plants. including

associated air pollution control equipment, in a manner consistent with good air pollution control

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practices for minimizing the quantity of emissions of all pollutants subject to emission standards

as ofthe Effective Date ofthis Consent Decree at all times, including during periods ofStart-up,

Shutdown, and Malftmction. No less frequently than once every three years, Mosaic shall

review, and update as necessary, the O&M Plan for these Sulfuric Acid Plants and submit the

updated plan to U.S. EPA and LDEQ. Upon submission of each O&M Plan, Mosaic shall

immediately implement the O&M Plan. U.S. EPA and/or the LDEQ may provide comments

and/or recommendations with respect to each O&M Plan.

14. Emissions Monitoring:

a. Installation, Certification, and Calibration: By no later than the following

dates, Mosaic shall implement the CEMS Plan specified in subparagraph c below:

i. A Train: June 1, 2011

u. D Train: October 1,2011

b. CEMS Operation: After the dates set forth above, Mosaic shall maintain and

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

adjustments, the CEMS shall be in continuous operation and shall be used at each ofthe Sulfuric

Acid Plants to demonstrate compliance with the S02 emission limits established in Paragraphs 8

and 9 ofthis Consent Decree.

c. S02 CEM~ Plan: CEMS Plans that describe how Mosaic shall monitor

compliance with the S02 emission limits established in Paragraphs 8 and 9 ofthis Consent

Decree, including the methodology that they shall use to demonstrate compliance in the event of

CEMS downtime lasting longer than 24 hours, are attached in Appendices B and C for the A

Train and the D Train, respectively. Mosaic shall implement the CEMS Plans at the A and D

Trains. The monitoring methods specified in these CEMS Plans are deemed approved as

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appropriate alternative monitoring methods for purposes ofNSPS, pursuant to 40 C.F.R.

§ 60. 13(i).

d. CEMS Breakdown: Mosaic shall take reasonable steps to avoid CEMS

breakdowns and minimize CEMS downtime. This shall include, but is not limited to, operating

and maintaining the CEMS in accordance with best practices and maintaining an on-site

inventory ofspare parts or other supplies necessary to make rapid repairs to the equipment.

15. Performance Testing:

a. Dates. Mosaic shall conduct the performance tests required in this Paragraph

15 by no later than the following dates:

i. A Train: June I, 2011

lI. D Train: September 30, 2011

iii. ETrain: December31,2010andDecember31,2012

b. Acid Mist. Mosaic, shall conduct a performance test measuring the emission

rate of acid mist in accordance with the applicable requirements of40 C.FR. Part 60, Appendix

A, Reference Method 8, or an alternative method approved by U.S. EPA. These performance

tests shall be used to demonstrate compliance with the acid mist emission limit established in

Paragraph 10 and may serve as the NSPS performance test required under 40 C.F.R. § 60.8.

Mosaic shallJake all steps necessary to assure accurate measurements of 100% Sulfuric Acid

Produced during each test run.

c. SO:? Emission Limits. Mosaic, shall conduct a performance test measuring the

emission rate of S02 in accordance with the applicable requirements of40 C.F.R. Part 60,

Appendix A, Reference Method 8, and Part 60, Appendix B, Perfonnance Specification 2, or an

alternative method approved by U.S. EPA. If applicable, this test may also serve as the NSPS

17
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 19 of 60

performance test required under 40 C.F.R. § 60.8. Mosaic shall take all steps necessary to assure

accurate measurements of 100% sulfuric acid production during each test run.

d. Advance Notification. By no later than 30 days before any performance test

required by this Paragraph 15 is conducted, or such other period agreed upon by the Parties,

Mosaic shall provide notice ofits intent to conduct such test to U.S. EPA and the LDEQ, using

the procedures specified in Section XV (Notices). This notification must include the scheduled

date ofthe test, an emissions test protocol, a description ofthe planned operating rate and

operating conditions, and the procedures that will be used to measure 100% Sulfuric Acid

Produced. IfV.S. EPA or LDEQ requires any adjustment ofthe testing protocol or operating

conditions, Mosaic shall make such adjustments and conduct the perfonnance test in conformity

with U.S. EPA's andlor LDEQ's requirements.

e. Report ofResults. By no later than 60 Days after conducting a performance

test required under this Paragraph 15, or such other period as agreed upon by the Parties, Mosaic

shall submit to U.S. EPA and to LDEQ, pursuant to the requirements ofSection XV (Notices), a

report documenting the results ofthe performance tests.

16.. Cessation ofOperation:

a. Upon the cessation of operation ofthe A or D Train, Defendant shall

surrender all air pollution pennits for the A or D Train to the permitting authority. Defendant

shall not file any application for emission reduction credits as a result ofsuch cessation of

operation. Defendant shall not use any emission reductions resulting from such cessation of

operation in any netting calculation. Defendant shall not sell any emission credits obtained as a

result of emission reductions and resulting from such cessation of operation.

b. Provided that Defendant has complied with the requirements of Subparagraph

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Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 20 of 60

a above, then upon the cessation of operation of A or D Train, that Sulfuric Acid Plant shall

cease to be subject to the provisions ofthis Consent Decree applicable to the Sulfuric Acid Plant

from which the operations are ceased, except for the obligation to pay any stipulated penalties

and civil penalty, ifnot previously paid, that may be due pursuant to Sections VIII or IX with

respect to that Sulfuric Acid Plant and the recordkeeping requirement in Paragraph 74.

V. ENVIRONMENTAL MITIGATION

PROJECTS/ADDITIONAL INJUNCTIVE RELIEF

17. Mosaic shall implement the environmental mitigation projects ("Projects") and

additional injunctive relief described in this Section. By entering into this Consent Decree,

Mosaic certifies that it is not. to its knowledge, otherwise required by law to perfonn the Projects

described in this Section, and that Mosaic will not use any Project or portion thereof, to satisfy

any obligations that it may have under other applicable requirements oflaw.

a. E Train. Mosaic shall take the following measures to reduce and demonstrate

reductions in emissions at the E Train.

I. By no later than December 30, 2010, Mosaic shall install cesimn

promoted catalyst in the fourth bed ofthe E Train converter. Mosaic shall select catalyst trade

named "SCX 2000" manufactured by MECS, Inc.• "VK 69" manufactured by Haldor Topsoe. or

equivalent catalyst approved by U.S. EPA in writing no later than June 30, 2010.

ii. By no later than June 30. 2012. Mosaic shall evaluate the perfonnance

ofthe E Train converter and heat exchangers and make any improvements it deems necessary to

reduce emissions. improve conversion, or otherwise improve perfonnance of the E Train to

comply with the Mass Cap specified in this paragraph. Such steps may include, but are not

limited to, replacing heat exchangers and/or catalyst.

iii. By no later than July 1.2012. the E Train shall be subject to a Mass

19

.

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Cap of 1,832 tons per year ofSOz. Mosaic shall demonstrate compliance with this annual Mass

Cap as ofJuly 1,2013 (for the 12-monthperiod ofJuly 1,2012 through June 30, 2013) and

thereafter as ofthe first of each month for the immediately preceding consecutive l2-month

period.

iv. Mosaic shall conduct performance tests ofthe E Train by the dates and

in the manner specified in Paragraph 15 ofthis Consent Decree.

b. MulberryBulfuric Acid Plant. Mosaic has ceased acid production at, and shall

within six (6) months ofthe Effective Date ofthis Consent Decree, permanently terminate the

acid production at the Mulberry Sulfuric Acid Plant and submit an application to the pennitting

authority to specifY that the Mulberry Sulfuric Acid Plant is permanently shut down. Emission

reductions generated by shutting down the Mulberry Sulfuric Acid Plant shall not be considered

as creditable contemporaneous emissions decreases for the purpose of obtaining netting credits

under the eAA's NSR and PSD programs. In the event of any future resumption of acid

production at the Mulberry Sulfuric Acid Plant, that emissions unit will be considered to have

zero emissions of all regulated pollutants under NSR or PSD as its baseline actual emissions for

purposes ofNSR or PSD pennitting.

VI. PERMITS

18. Defendant shall obtain all required federal, state, or local permits necessary for

perfonning any compliance obligation under this Consent Decree, including without limitation

pennits for construction ofpollution control technology and the installation of equipment.

Defendant may seek relief under the provisions ofSection X (Force Majeure) ofthis Consent

Decree for any delay in the perfonnance of any such obligation resulting from a failure to obtain,

or a delay in obtaining, any pennit or approval required to fulfill such obligation if Defendant

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Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 22 of 60

has submitted timely and administratively complete applications and has taken all other actions

necessary to obtain such permit(s) or approval(s). No later than August 1,2013 or, in the event

that Mosaic chooses to invoke Subparagraph 8.g.,.90 Days after receiving the written notice of

the final emission limits as specified in Subparagraph 8.g. for the A Train Sulfuric Acid Plant

and by no later than January 1, 2012, for the D Train Sulfuric Acid Plant, Mosaic shall submit an

administratively complete application to the LDEQ permitting authority to incorporate the

following requirements into federally-enforceable minor or major NSR permits or other permits

(other than Title V permits) which are federally enforceable for each facility:

a. All Short-Term Limits, Long-Term Limits and Mass Caps for S02 emissions

established in Paragraphs 8 and 9 ofthis Consent Decree;

b. For the A Train, the emission limitduring Startup;

c. For the A Train, the acid mist emission limit established in Paragraph 10 of

this Consent Decree;

d. The monitoring requirements established in the CEMS Plans; and

e. For the A Train, the applicability of 40 C.F.R. Part 60, Subparts A aud H aud

all requirements therein.

19. Following submission ofthe complete permit applications described in Paragraph 18,

Defendaut sbail cooperate with the LDEQ aud auy applicable loeai agency. Defendaut sban file

any applications necessary to incorporate the requirements ofthose permits into the Title V

Pennit for the relevant facility in accordance with state Title V rules.

20. Emission Limits and Standards: Prior to termination ofthe Consent Decree, the

following Consent Decree requirements shall be incorporated into the pennits required under

Paragraph 18 and in the Uncle Sam Facility's Title V operating permit:

21

,
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 23 of 60 --'------, ""-

a. All Short-Tenn Limits, Long-Tenn Limits and Mass Caps for S02 emissions

established in Paragraphs 8 and 9 ofthis Consent Decree;

b. For the A Train, the emission limit during Startup;

c. For the A Train, the acid mist emission limit established in Paragraph 10 of

this Consent Decree;

d. The monitoring requirements established in the CEMS Plans; and

e. For the A Train, the applicability of 40 C.F.R. Part 60, Subparts A and H and

all requirements therein.

21. Mechanism for Title V Incorporation: The incorporation ofthe requirements ofthis

Consent Decree into Title V Permits shall be in accordance with state Title V rules, including

applicable administrative amendment provisions ofsuch rules.

22. Notwithstanding the reference to a Title V pennit in this Consent Decree, the

enforcement ofsuch permit shall be in accordance with its own terms and the Act. The Title V

pennit shall not be enforceable under this Consent Decree, although any term or limit established

by or under this Consent Decree shall be enforceable under this Consent Decree regardless of

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

XIX (Termination) ofthis Consent Decree. Nothing in this Consent Decree is meant to preclude

enforcement ?fthe underlying pennit or terms ofthe underlying permit included in the Title V

permit.

23. Using the procedures set forth in Section XV (Notices), Defendant shall provide U.S.

EPA with a copy of each application for a federally enforceable permit necessary to implement

the requirements ofthis Consent Decree that is filed after the Effective Date, as well as a copy of

any pennit proposed as a result ofsuch application, to allow for timely participation in any

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Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 24 of 60

public comment opportunity. If, as ofthe Effective Date, Defendant has received any permit

necessary to implement the requirements ofthis Consent Decree, then no later than 30 days after

the Effective Date, Defendant shall submit copies'ofsuch permits to U,S. EPA using the

procedures set forth in Section XV (Notices). U.S. EPA may excuse in writing all or part ofthe

latter submission if copies ofsuch permits have already been submitted to U.S. EPA prior to the

Effective Date.

24. Emission Credit Generation: Defendant shall neither generate nor use any S<h or

acid mist emission reductions resulting from any Projects conducted pursuant to this Consent

Decree for the purpose of obtaining netting credits or offsets in any PSD, major NSR, andlor

minor NSR permit or pennit proceeding; provided however, that nothing in this Consent Decree

is intended to prohibit Defendant from:

a. using emission reductions from the installation of controls required by this

Consent Decree in determining whether a project that includes both the installation of controls

under this Consent Decree and other construction or modifications (including construction or

modifications that affect the facility's production capacity) that occur at the same time and are

permitted as a single project triggers PSD and/or NSR requirements;

b. using netting reductions or emission offset credits from units that are covered

by this Consent Decree. to the extent that the proposed netting reductions or emission offset

credits represent the difference between the emission limits set forth in this Consent Decree and

the more stringent emission limits that Defendant may elect to accept for these units in a

permitting process;

c. using netting reductions or emissions offset credits from units that are not

subject to an emission limitation under this Consent Decree;

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d, using netting reductions or emissions offset credits for any pollutants other

than S02 or sulfuric acid mist.

VII, REPORTING REQUIREMENTS

25, Defendant shall submit the following reports:

a, For each Sulfuric Acid Plant, Defendant shall submit to D,S, EPA and LDEQ,

design specifications documenting how Defendant intends to comply with the emission limits

established in Paragraphs 8 and 9, no later than one year before the date specified in Paragraphs

8 and 9 for compliance with the applicable 802emissions limit.

b, After the Effective Date and before the tennination ofthis Consent Decree,

Defendant shall submit to U.S. EPA and to LDEQ a semi-annual progress report no later than

January 31 and July 31 of each year, with the first report due on January 31, 2010, Each semiannual progress report shall contain the following information with respect to the six months

preceding its submission: (I) work perfonned and progress made toward implementing the

requirements of Sections IV and V above; (2) any significant modifications to previouslysubmitted design specifications of any pollution control system, or to monitoring equipment,

required to comply with the requirements ofSections IV and V above; (3) any significant

problems encountered or anticipated in complying \Vith the requirements of Sections IV and V

above, together with implemented or proposed solutions; (4) a summary ofthe emissions

monitoring and testing data collected pursuant to this Consent Decree including the mass ofS02

emitted and the quantity of 100% Sulfuric Acid Produced during the reporting period; (5) a

description of all periods of Startup, Shutdown, and Malfunction for A and D Trains, including

the quantity of802 emitted and the causes of Malfunction(s); (6) the date and time identifying

each period during which the CEMS was inoperative except for zero and span checks and the

24

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Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 26 of 60

nature ofthe system repairs or adjustments; (7) status ofpermit applications and a summary of

all pennitting activity pertaining to compliance with this Consent Decree; (8) any reports to

LDEQ pertaining to compliance with this Consent Decree; and (9) all changes or updates made

to the O&M Plans specified in Paragraph 13.

c. If Defendant violates, or has reason to believe that it may violate, any

requirement ofthis Consent Decree or of any applicable pennit, Defendant shall notify the

United States and the State Plaintiff ofsuch violation and its duration or anticipated likely

duration, in writing, within 35 calendar days ofthe Day Defendant first becomes aware ofthe

violation or potential violation, with an explanation ofthe violation's likely cause and ofthe

remedial steps taken, or to be taken, to prevent or minimize such violation. Ifthe cause of a

violation cannot be fully explained at the time the report is due, Defendant shall so state in the

report. Defendant shall investigate the cause ofthe violation and shall then submit an

amendment to the report, including a full explanation ofthe cause ofthe violation, within 30

Days ofthe Day Defendant becomes aware ofthe cause ofthe violation. Nothing in this

Paragraph or the following Paragraph relieves Defendant ofits obligation to provide the notice

required by Section X (Force Majeure).

d. Whenever any violation ofthjs Consent Decree or of any applicable pennit or

any other eve_nt affecting Defendant's performance under this Decree, or the perfonnance of a

Sulfuric Acid Plant, may pose an immediate threat to the public health or welfare or the

envirorunent, Defendant shall notify U.S. EPA and the State, orally or by electronic or facsimile

transmission as soon as possible, but no later than 24 hours after Defendant first knew of, or

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

set forth in the preceding reporting provisions.

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Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 27 of 60

26. All reports shall be submitted to ihe persons and in the manner designated in Section

xv (Notices).

27. Each report submitted by Defendant under this Section shall be signed by a plant

manager, a corporate official responsible for envirorunental management and compliance, or a

corporate official responsible for plant management oftbe Defendant, and shall include the

following certification:

I certify UDder penalty oflaw that I have examined and am familiar with the

infonnation submitted in this document and all attachments and that this

document and its attachments were prepared either by me personally or under

my direction or supervision in a manner designed to ensure that qualified and

knowledgeable personnel properly gather and present the infonnation

contained therein. I further certify. based on my personal knowledge or on

my inquiry ofthose individuals immediately responsible for obtaining the

information, that the infonnation is true, accurate and complete. I am aware

that there are significant penalties for submitting false information, including

the possibility offines and imprisornnent for knowingly and willfully

submitting a materially false statement.

28. The reporting requirements ofthis Consent Decree do not relieve Defendant of any

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

state, or local law, regulation, pennit, or other requirement. The reporting requirements ofthis

Section are in addition to any other reports, plans or submissions required by other Sections of

this Consent Decree.

29. Any infonnation provided pursuant to this CODsent Decree may be used by the United

States in any proceeding to enforce the provisions ofthis Consent Decree and as otherwise

permitted by law. All information and docwnents submitted by Mosaic to the United States or to

the State pursuant to this Consent Decree shall be subject to public inspection, unless identified

and supported as Confidential Business Information ("CBI") by Mosaic in accordance with 40

C.F.R. Part 2 and other applicable state law.

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Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 28 of 60

VIII. CIVIL PENALTY

30. Within thirty (30) Days after the Effective Date ofthis Consent Decree, Defendant

shall pay to the Plaintiffs $2.4 million as a civil penalty, in the following manner:

a. $1.8 million to the United States by FedWire Electronic Funds Transfer

("EFT") to the U.S. Department ofJustice ("DOl") in accordance with instructions to be

provided to Defendant, following lodging ofthe Consent Decree, by the Financial Litigation

Unit ofthe United States Attorney's Office for the Eastern District ofLouisiana, At the time of

payment, Defendant shall simultaneously send written notice ofpayment and a copy of any

transmittal documentation (which shall reference DOI case number 90-5-2-1-08957, USAO file

number ~006V00316 and the civil action number ofthis case) to the United States in accordance

with Section XV ofthis Decree (Notices); and

b. $600,000 to the State ofLouisiana by certified check made payable to LDEQ

and sent to Darryl Serio, Fiscal Director, Office ofManagement and Finance, LDEQ. P.O, Box

4303, Baton Rouge, Louisiana 70821-4303.

31. If any portion ofthe civil penalty due to the United States or the State Plaintiffis not

paid when due, Defendant shall pay interest on the amount past due, accruing from the Effective

Date through the date ofpayment, at the rate specified in 28 U.S.C. § 1961. Interest payment

under this Paragraph shall be in addition to any stipulated penalty due. No amount ofthe civil

penalty or interest paid by Defendant shall be used to reduce its federal or state tax obligations.

IX. STIPULATED PENALTIES

32, Defendant shall be liable for stipulated penalties to the United States and to the State

Plaintifffor violations ofthis Consent Decree as specified below, unless excused Wlder Section

X (Force Majeure). Any stipulated penalties due under this Section shall be paid in accordance

27
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 29 of 60

with Paragraph 48 below. All transmittal correspondence shall state that any such payment is for

payment ofstipulated penalties and shall include the same identifying infonnation required by

Paragraph 30 (Civil Penalty) above.

33. Failure to Pay Civil Penalty: IfDefendant fails to pay any portion ofthe civil penalty

required to be paid under Section VIII (Civil Penalty) when due, Defendant shall pay a stipulated

penalty of$I,OOO per day for each day that the payment is late. Late payment ofthe civil penalty

shall be made in accordance with Paragraph 30 above. Each stipulated penalty due under this

Paragraph shall be paid exclusively to the Party to whom Defendant failed to make timely

payment ofthe full civil penalty due.

34. Short~ Term SOz Limits set forth in Paragraphs 8 and 9.

a. The following stipulated penalties shall accrue for each violation ofthe ShortTenn S02 Limit in any non-overlapping 3-hour period:

Percentage Over the Limit

1- 50%

51-100%

Over 100%

Penalty per Violation

$250

$500

$750

No separate stipulated penalty will apply with respect to the limit on S02 emissions under 40

C.F.R. Part 60.

b. Solely in the event ofa dispute regarding the Short-Term Limit (and

corresponding Mass Cap) for A Train following the demonstration period under Paragraph g.g,

and solely during the period oftime between Mosaic's invocation of Dispute Resolution and the

Court's decision resolving such dispute, and provided that Mosaic complies with its proposed

Short-Tenn Limit under Paragraph 8.g.i (in accordance with Paragraph 8.g.iv), the stipulated

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Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 30 of 60

penalties accruing under this subparagraph shall be reduced in proportion to the percentage by

which Mosaic's proposed Short-Term Limit exceeds the Short-Term Limit determined by u.s.

EPA under Paragraph 8.g.iii, multiplied by two ("adjusted amount"). In addition, should the

Court take more than six months to resolve the dispute following the time the dispute is briefed

and submitted for decision, the stipulated penalty during the pendency ofthe dispute shall accrue

at 50% ofthe adjusted amount in each month after the six months following submission ofthe

dispute until decision by the Court, and at 25% ofthe adjusted amount in each month after the

twelfth month following submission ofthe dispute. For example, if U.S. EPA determines under

Paragraph 8.g.iii that Mosaic's Short-Term Limit for A Train shall be 1.0 lb/ton and Mosaic

invokes Dispute Resolution proposing a Short-Term Limit of 1.2 lb/ton, which is 20% higher

than 1.0 lb/ton, then Mosaic's stipulated penalty liability for exceeding the· 1.0 lb/ton Short-Term

Limit shall accrue at 40% (20% x 2) ofthe otherwise applicable stipulated penalty under

Subparagraph 34.8., provided that Mosaic complies with its proposed Short-Term Limit of 1.2

lb/ton during the pendency ofthe dispute. Thus, in this example, the otherwise applicable

stipulated penalty under Subparagraph 34.a. (for a violation ranging between 1 - 50% over the

limit) is $2S0/violation. Should the Court eventually resolve the dispute in U.S. EPA's favor,

stipulated penalties for the period oftime the dispute was pending would accrue at 40% x $250 =

$100 per vio~ation, provided that Mosaic complies with its proposed Short-Term Limit of 1.2

lb/ton during the pendency ofthe dispute. Ifthe dispute is not resolved until at least six months

after submission ofthe dispute to the Court, the stipulated penalty accrual would be reduced after

six months and would accrue at $50 per violation (50% x $100) begilUling with the seventh

month following submission ofthe dispute to the Court; ifit is not resolved until after twelve

months, the stipulated penalty accrual would be further reduced after twelve months and would

29
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 31 of 60

accrue at $25 per violation (25% x $100) beginning with the thirteenth month following

submission ofthe dispute to the Court.

35, A Train Startup Limit in Paragraph 8. The following stipulated penalties shall accrue

for each violation ofthe A Train Startup emission limitation specified in Paragraph 8.b:

Percentage Over the Limit

1-50%

51 - 100%

Over 100%

Penalty per Violation

$250

$500

$750

36. Long-Term S02 Limit as set forth in Paragraph 9. The following penalty shalL accrue \

"i

for each day in violation ofthe D Train Long-Term Limit:

Period ofNoncompliance

1st - 14th day

15th - 30th day

31 sl day and each day thereafter

penalty per Violation

$1000

$1500

$2000

e.g., a violation ofthe Long-Tenn Limit lasting 40 consecutive days will result in $58,000 in

stipulated penalties (i.e, ($1000 x 14) +($1500 x 16) +($2000 x 10)). No separate stipulated

penalty will apply with respect to the limit on SO:>. emissions under 40 C.F.R. Part 60.

37. Mass Cap.

a, For each violation of a Mass Cap identified in Paragraphs 8 and 9, a stipulated

penalty of $15,000 per ton or fraction of a ton ofS02 emitted in excess ofthe applicable Mass

Cap (e,g., exceeding the Mass Cap by 2.1 tons would result in $45,000 ($15,000 x 3) in

stipulated penalties.) In no event shall the stipulated penalty exceed $900,000 for anyone

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Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 32 of 60

month. A Mass Cap violation may occur only one time per month and only when the sum qfthe

S02 emitted in the immediately preceding 12 months exceeds the Mass Cap.

b, Solely in the event of a dispute regarding the Mass Cap (and corresponding

Short-Tenn Limit) for A Train following the demonstration period under Paragraph 8.g, and

solely during the period oftime between Mosaic's invocation of Dispute Resolution and the

Court's decision resolving such dispute, and provided that Mosaic complies with the Mass Cap

associated with its proposed Short-Term Limit under Paragraph 8.g.i (in accordance with

Paragraph 8.g.iv), the stipulated penalties accruing under this subparagraph shall be reduced in

proportion to the percentage by which Mosaic's proposed Mass Cap exceeds the Mass Cap

detennined by U.S. EPA under Paragraph 8.g.iii, multiplied by two ("adjusted amount"). In

addition, should the Court take more than six months to resolve the dispute following the time

the dispute is briefed and submitted for decision, the stipulated penalty during the pendency of

the dispute shall accrue at 50% ofthe adjusted amount in each month after the six months

following submission ofthe dispute until decision by the Court, and at 25% ofthe adjusted

amount in each month after the twelfth month following submission ofthe dispute. For example,

if U.S. EPA determines under Paragraph 8,g.iii that Mosaic's Mass Cap for A Train shall be 402

tons and Mosaic invokes Dispute Resolution proposing aMass Cap of483, which is 20% and 81

tons higher ~an 402 tons, then Mosaic's stipulated penalty liability for exceeding the 402 tons

Mass Cap shall accrue at 40% (20% x 2) ofthe otherwise applicable stipulated penalty under

subparagraph a., provided that Mosaic complies with its proposed Mass Cap of 483 tons during

the pendency ofthe dispute. Thus, in this example, the otherwise applicable stipulated penalty

would be 81 tons x $15,000 per violation - $1,215,000. This amount exceeds the $900,000

stipulated penalty limit in subparagraph a. for any month, making the otherwise applicable

31

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Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 33 of 60

stipulated penalty $900,000. In the event of a dispute and should the Court eventually resolve

the dispute in U.S. EPA's favor, Mosaic's stipulated penalty limit would accrue at 40% x

$900,000 == $360,000 per month, provided that Mosaic complies with its proposed Mass Cap of

483 tons during the pendency ofthe dispute. Ifthe dispute is not resolved until at least six

months after submission ofthe dispute to the Court, the stipulated penalty accrual would be

reduced after six months and would accrue at $180,000 per month (50% x $360,000) beghming

with the seventh month following submission ofthe dispute to the Court; if not resolved until

after twelve months, the stipulated penalty accrual would be further reduced after twelve months

and would accrue at $90,000 per month (25% x $360,000) beginning with the thirteenth month

following submission ofthe dispute to the Court.

38. Monitoring Reguirements. The following stipulated penalties shall accrue per day

where the CEMS fails to operate in accordance with any requirement identified in Paragraph 14

and/or the applicable CEMS Plan. This will be calculated over the course of each calendar year

(e.g., January 1- December 31).

Period ofNoncompliance

(Total days in violation in any

calendar year)

Ist-14thday

15th - 30th day

31 st day and each day thereafter

Penalty Per Day

$1500

$2000

$2500

e.g., if Mosaic fails to operate a CEMS in accordance with any requirement identified in

Paragraph 14 and/or the applicable CEMS Plan for 40 days in any calendar year, consecutive or

not, the result will be $78,000 in stipulated penalties (i.e. ($1500 x 14) +($2000 x 16) +($2500

x 10»).

32

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Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 34 of 60

39. Performance Testing. The following stipulated penalties shall accrue per violation

per day for each violation of any requirements identified in Paragraph 15 relating to performance

testing:

Period ofNoncompliance Penalty Per Violation Per Day

1st - 14th day $1000

15th-30thday $1500

31st day and beyond $2000

40. Opacity Limits in the NSPS for A and D Trains. For each violation at the A and D

Trains ofthe opacity requirements of 40 C.F.R. § 60.83(a)(2), as demonstrated by a Method 9

reference test, $40 per six (6) minute average reading in excess ofthe limit, up to a maximum of

$2000 per day.

41. Permitting Requirements. The following stipulated penalties shall accrue per

violation per day for each violation of any requirement to submit a complete application for

permits as required and on the schedule specified in Section VI (pennits):

Period ofNoncompliance Penalty Per Violation Per Day

1st - 14th day $1000

15th - 30th day $1500

. 31 st day and beyond $2000

42. Envirorunental Mitigation Projects!Additional Injunctive Relief. Stipulated penalties

shall accrue for each violation of any ofthe requirements set forth in Section V (Environmental

Mitigation Projects/Additional Injunctive Relief) as follows: For each violation ofthe Mass Cap

for E Train identified in Paragraph 17.a.iii. a stipulated penalty of $15,000 per ton or fraction of

S02 emitted in excess ofthe applicable Mass Cap (using the same calculation methodology

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Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 35 of 60

described in Paragraph 37.a above). For each other violation ofthe requirements of Paragraph

17, the following stipulated penalties shall accrue per violation per day:

Period ofNoncompliance

1st - 14th day

15th - 30th day

31 st day and beyond

Penalty Per Violation Per Day

$1000

$1500

$2000

43. Reporting Requirements. The following stipulated penalties shall accrue for: failure

to submit design specifications within the period specified in Paragraph 25.a ofthis Consent

Decree; failure to submit a semi-annual progress report within the period specified in Paragraph

25.b ofthis Consent Decree; failure to notify the United States and the applicable State Plaintiff

ofa violation of, or reason to believe it may violate, this Consent Decree or any applicable

permit within the period specified in Paragraph 25.c ofthis Consent Decree; or failure to notify

U.S. EPA and/or the State of an event that may pose an immediate tlrreat to the public health or

welfare or the environment within the period specified in Paragraph 25.d ofthis Consent Decree.

Period ofNoncompliance

1st - 14th day

15th - 30th day

31 st day and beyond

Penalty Per Violation Per Day

$150

$250

$500

'"

44. The following stipulated penalties shall accrue per violation per day for Defendant's

failure to comply with any requirement, not specifically referenced in Paragraphs 32 through 43

above, ofthis Consent Decree or of any plan or schedule approved under this Consent Decree,

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

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Period of Noncompliance Penalty Per Violation Per Day

.. __.,..,..'....',._'..

1st -14th day $150

15th - 30th day $250

31st day and beyond $500

45. Stipulated penalties'under this Section shall begin to accrue on the day after

performance is due or on the day a violation occurs, whichever is applicable, and shall continue

to accrue until perfonnance is satisfactorily completed or until the violation ceases. Stipulated

penalties shall accrue simultaneously for separate violations ofthis Consent Decree. Defendant

shall pay any stipulated penalty within 30 days ofreceiving the United States' or the State

Plaintiffs written demand. The United States and/or the State Plaintiffmay seek stipulated

penalties under this Section. Where both sovereigns seek stipulated penalties for the same

violation ofthis Consent Decree, Defendant shall pay 50 percent to the United States and 50

percent to the State Plaintiff, Where only one sovereign demands stipulated penalties for a

violation, it shall make that demand on its own behalf, and the Defendant shall pay the full

amount ofthe stipulated penalties due for the violation to that sovereign, and Defendant shall not

be liable for additional stipulated penalties to any other sovereign for that violation.

46. The United States and the State Plaintiffmay each, in the unreviewable exercise ofits

discretion, reduce or waive stipulated penalties or other reliefotherwise due it under this Consent

Decree. The detennination by one sovereign not to seek stipulated penalties, or subsequently to

waive or reduce the amount it seeks, shall not preclude the other sovereign from seeking

stipulated penalties up to the full amount owed to that sovereign,

47. Stipulated penalties shall continue to accrue as provided in Paragraph 45 above,

during any dispute resolution, but need not be paid until the following:

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a. Ifthe dispute is resolved by agreement or by a decision ofthe United States or

the State Plaintiffthat is not appealed to the Court, Defendant shall pay accrued penalties

determined owed, together with interest, at the rate specified in 28 U.S.C. § 1961, to the United

States and/or the State Plaintiff within 30 days ofthe effective date ofthe agreement or the

receipt of U.S. EPA's or the State Plaintiff's decision.

b. Ifthe dispute is appealed to the Court and the United States and/or the State

Plaintiff prevails in whole or in part, Defendant shall pay all accrued penalties that the Court

determines Defendant owes, together with interest, at the rate specified in 28 U.S.C. § 1961,

within 60 days ofreceiving the Court's decision or order, except as provided in Subparagraph c,

below.

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

accrued penalties owed, together with interest at the rate specified in 28 U.S.C. § 1961, no later

than 30 days after the administrative decision orjudicial order, judgment or decree resolving the

dispute becomes final and not subject to any further appeal.

48. Defendant shall pay stipulated penalties owed to the United States in accordance with

Paragraph 30.a, above, or by certified or cashier's check in the amount due, payable to the "U.S.

Department ofJustice," referencing DOJ No. 90-5-2-1-08957 and United States Attorney's

Office file number 2006V00316, and delivered to the office ofthe United States Attorney, U.S.

District Court Eastern District ofLouisiana, 500 Poydras Street, New Orleans, LA 70130, (504)

680-3000. Defendant shall pay stipulated penalties owed to the State Plaintiffin the same

manner prescribed for payment ofthe civil penalty in Paragraph 30.b above.

49. No amount ofthe stipulated penalties to be paid by Defendant shall be used to reduce

its federal or state tax obligations.

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50. If Defendant fails to pay stipulated penalties according to the terms ofthis Consent

Decree, Defendant shall be liable for interest at the rate specified in 28 U.S.C. § 1961, accruing

as ofthe date payment became due.

51. Subject to the provisions of Section XIII (Effect ofSettlementJReservation ofRights),

the Stipulated Penalties provided for in this Consent Decree shall be in addition to any other

rights, remedies, or sanctions available to the United States for Defendant's violation ofthis

Consent Decree or applicable law. Ifthe violations result in excess emissions, the United States

and/or the State may elect to seek appropriate relief, including but not limited to compensatory

emission reductions equal to or greater than the excess amounts emitted. Where a violation of

this Consent Decree is also a violation ofthe NSPS, Subparts A or H, or the PSD or non·

attainment NSR requirements, Defendant shall be allowed a credit, for any stipulated penalties

paid, against any statutory penalties imposed for such violation.

X. FORCE MAJEURE

52. A "Force Majeure Event" is any event beyond the control ofDefendant, its

contractors, or any entity controlled by Defendant that delays the performance of any obligation

under this Consent Decree despite Defendant's best efforts to fulfill the obligation, "Best efforts"

includes anticipating any potential force majeure event and addressing the effects of any such

event (a) as it is occurring and (b) after it has occurred, to prevent or minimize any resulting

delay to the greatest extent possible,

53. "Force Majeure" does not include Defendant's fmancial inability to perform any

obligation under this Consent Decree. Unanticipated or increased costs or expenses associated

with the performance of Defendant's obligations under this Consent Decree, or Defendant's

failure to make an administratively complete and timely application for any required approval or

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pennit, shall not constitute circumstances beyond its control, or serve as a basis for an extension

oftime under this Section X, However, the failure ofa pennitting authority to issue a necessary

construction or operating pennit in a timely fashion is an event offorce majeure where the

failure ofthe permitting authority to issue the relevant pennit is beyond the control of Defendant.

54. If any event occurs which causes or may cause a delay or impediment to perfonnance

in complying with any provision ofthis Consent Decree, Defendant shall notify U.S. EPA and

the State Plaintiff: (a) orally or by electronic or facsimile transmission, as soon as possible, but

no later than 72 hours after the time Defendant first knew ofthe event or should have known of

the event by exercise of due diligence, and (b) in writing no later than seven Days after the time

Defendant first knew ofthe event or should have known ofthe event by the exercise ofdue

diligence. In this notice, Defendant shall specifically reference this Paragraph 54 ofthis Consent

Decree and describe the anticipated length oftime the delay may persist, the cause or causes of

the delay, the measures taken or to be taken by Defendant to prevent or minimize the delay, the

schedule by which those measures shall be implemented, and the reasons Defendant attributes

the delay to a Force Majeure Event (ifDefendant does so). Defendant shall take all necessary

measures to avoid or minimize such delays. The written notice required by this Paragraph shall

be effective upon the mailing ofthe same by overnight mail or by certified mail, return receipt

requested, to U.S. EPA and the State Plaintiff as specified in Section XV (Notice).

55. Failure by Defendant to comply with the notice requirements specified in Paragraph

54 above shall preclude Defendant from asserting any claims of Force Majeure with respect to

the particular event involved, unless notice, though delinquent, is provided in sufficient time to

allow U.S. EPA and the State Plaintiffto verify the cause and nature ofthe event in question;

except that, in any event, if notice is delinquent, Defendant shall be precluded from asserting any

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claims afForce Majeure as justification for failure to comply with any requirement ofthis

Consent Decree for a period oftime equal to the time by which notice was delinquent.

56, The United States, after consultation with the State Plaintiff, will notify Defendant in

writing regarding the United States' position regarding Defendant's claim of a delay or

impediment to performance within forty-five (45) days ofreceipt ofthe written Force M&:jeure

notice provided under Paragraph 54.

57, Ifthe United States, after consultation with the State Plaintiff, agrees that the delay or

impediment to performance has been or will be caused by a Force Majeure Event, the Parties

shall stipulate in writing to an extension ofthe required deadline(s) for all requirement(s)

affected by the Force Majeure Event for a period equivalent to the delay actually caused by the

Force Majeure Event. Such stipulation shall be filed as a material modification to the Consent

Decree pursuant to the procedures ofSection XVIII (Modification), Defendant shall not be

liable for stipulated penalties for the period of any such extension,

58, Ifthe United States, after consultation with the State Plaintiff, does not accept

Defendant's claim of Force Majeure, stipulated penalties will accrue as provided in Section IX

(Stipulated Penalties), No later than forty~five (45) days after receipt ofthe notice provided

under Paragraph 56 above, Defendant may invoke formal dispute resolution with respect to the

claim afForce Majeure, pursuant to Paragraphs 63 through 72 below, by flling a petition for

determination with the Court. Ifthe CoW't determines that the delay or impediment to

performance has been or will be caused by a Force Majeure Event, Defendant shall be excused

as to that event(s) and delay (including stipulated penalties) for a period oftime equivalent to the

delay caused by the Force Majeure Event. Defendant will bear the burden ofpraving that any.

delay in satisfying any requirement(s) ofthis Consent Decree was caused by or will be caused by

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a Force Majeure Event.

59. Defendant shali also bear the burden of proving the duration and extent of any

delay(s) attributable to such Force Majeure Event. Any extension of one compliance date based

on a particular Force Majeure Event may, but shall not necessarily, result in an extension of a

subsequent compliance date or dates.

60. Notwithstanding any other provision ofthis Consent Decree, this Court shall not draw

any inferences nor establish any preswnptions adverse to either party as a result of Defendant's

serving of a force majeure notice or the Parties' inability to reach agreement with respect to the

claim offorce majeure.

61. In appropriate circumstances, as part ofthe resolution ofany matter submitted to this

Court under this Section X, the Parties involved in the dispute may agree to, or the Court may

order, extension or modification ofthe schedule for completion of work under the Consent

Decree to account for the delay in the work that occurred as a result ofany Force Majeure Event

claimed by Defendant that is agreed to by the United States or approved by this Court.

Defendant shall be liable for stipulated penalties for its failure thereafter to complete the work in

accordance with the extended or modified schedule.

62. Potential Force Majeure Events. The Parties agree that, depending upon the

circumstances related to an event and Defendant's response to such circumstances, the kinds of

events listed below are among those that could qualify as Force Majeure Events within the

meaning ofthis Section: construction, installation, labor, or equipment shortages or delays; acts

ofGod, such as a hurricane; acts ofwar or terrorism; an order by a government official,

government agency, or other regulatory authority. The listing ofthe foregoing types of events

shall neither (1) preclude the United States (or the Court, in the event of a dispute) from

40

,

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determining that a particular event in one ofthe enumerated categories does not qualify as a

Force Majeure Event (as defined in this Section) in light ofthe specific facts and circumstances

pertaining to the event, nor (ii) preclude the Defendant from invoking force majeure for reasons

other than those listed above.

XI. DISPUTE RESOLUTION

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

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

under or with respect to this Consent Decree. Defendant's failure to seek resolution of a dispute

under this Section shall preclude Defendant from raising any such issue as a defense to an action

by the United States to enforce any obligation of Defendant arising under this Decree.

64. Except as otherwise expressly provided in this Consent Decree, the dispute resolution

procedures set forth in this Section XI shall be available to resolve any and all disputes arising

under this Consent Decree, provided that the Party invoking the procedures has made a good

faith attempt to resolve the matter with the other Party or Parties involved.

65. The dispute resolution procedure required herein shall be invoked upon the giving of

written notice by one ofthe Parties to this Consent Decree to another advising the other

appropriate Party(ies) of a dispute pursuant to Section XI. The notice shall describe the nature of

the dispute and shall state the noticing Party's position with regard to such dispute. The Party or

Parties receiving such notice will acknowledge receipt ofthe notice and the Parties shall

expeditiously schedule a meeting to discuss the dispute informally no later than fourteen (14)

days from the receipt ofsuch notice.

66. Disputes submitted to dispute resolution shall, in the first instance, be the subject of

infonnal negotiations between the Parties. Such period of infonnal negotiations shall not extend

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beyond thirty (30) days from the date ofthe first meeting between representatives ofthe Parties,

unless the Parties involved in the dispute agree that this period should be shortened or extended.

67. In the event that the Parties are unable to reach agreement during such informal

negotiations period, the United States and/or the State Plaintiff, as applicable, shall provide

Defendant with a written summary ofits/their position regarding the dispute. The position

advanced by the United States and/or the State Plaintiff, as applicable, will be considered binding

unless, within forty-five (45) Days ofDefendant's receipt ofthe written summary, Defendant

invokes formal dispute resolution by filing with the Court a petition which describes the nature

ofthe dispute and Defendant's position on the dispute. Counsel filing a petition invoking fonnal

dispute resolution shall, at the time offiling, notice it for hearing in' accordance with the Eastern

District of Louisiana local rules. Such petition shall be filed no later than fifty-five (55) Days

preceding the notice hearing date. The United States and/or the State ofLouisiana shall respond

to the petition no later than the eighth calendar day prior to the noticed hearing date.

68. The time periods set out in this Section may be shortened or lengthened, in

accordance with the Eastern District of Louisiana local rules, upon motion to the Court of one of

the Parties to the dispute, explaining the Party's basis for seeking such a scheduling

modification, or by agreement ofthe Parties to the dispute.

69. In the event that the United States and the State Plaintiff are unable to reach

agreement among themselves with regard to the Defendant's claim, the position ofthe United

States shall be the Plaintiffs' final position. A dissenting State Plaintiffmay file such other

pleadings expressing its position as allowed by the Court.

70. In a fonnal dispute resolution proceeding under this Section, Defendant shall bear the

burden of demonstrating that its position complies with this Consent Decree and the Act. The

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Court shall decide the dispute based upon applicable principles oflaw. The United States

reserves the right to argue that its position is reviewable only on the administrative record and

must be upheld unless arbitrary and capricious or otherwise not in accordance with the Jaw.

71. The Parties do not intend that the invocation ofthis Section Xl by a Party cause the

Court to draw any inferences nor establish any presumptions adverse to either Party as a result of

invocation ofthis Section.

72. In appropriate circumstances, as part ofthe resolution of any matter submitted to this

Court under this Section XI, the Parties involved in the dispute may agree to, or the Court may

order, an extension or modification ofthe schedule for completion ofwork under the Consent

Decree to account for the delay in the work that occurred as a result of dispute resolution.

Defendant shall be liable for stipulated penalties for its failure thereafter to complete the work in

accordance with the extended or modified schedule. Invocation ofdispute resolution with

respect to any of Defendant's obligations under this Consent Decree shall not, ofitself, excuse or

extend the time for perfonnance of any other obligation of Defendant under this Consent Decree.

XII. INFORMATION COLLECTION AND RETENTION

73. The United States, the State Plaintiff, and their representatives, including attorneys,

inspectors, contractors, and consultants, shall have the right of entry into any ofthe Facilities

covered by t4is Consent Decree, at all reasonable times, upon presentation of credentials, to:

monitor the progress of activities required under tJris Consent Decree; verify any data or

infonnation submitted to the United States or a State Plaintiffin accordance with the tenns of

this Consent Decree; obtain samples and, upon request, splits of any samples taken by Defendant

or its representatives, contractors, or consultants; obtain documentary evidence, including

photographs and similar data; and assess Defendant's compliance with this Consent Decree.

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74. Until at least three years after the termination ofthis Consent Decree, Defendant shall

retain, and shall instruct its contractors and agents to preserve, all non~identical copies of all

documents, records, or other information (including documents, records, or other infonnation in

electronic fonn) in its or its contractors' or agents' possession or control, or that come into its or

its contractors' or agents' possession or control, and that relate in any manner to Defendant's

performance ofits obligations under this Consent Decree. This information retention

requirement shall apply regardless of any contrary corporate or institutional policies or

procedures. At any time during this information~retention period, the United States or a State

Plaintiffmay request copies of any documents, records, or other infonnation required to be

maintained under this Paragraph.

75. If Defendant desires to revert to its ordinary document retention policy in regards to

documents it is otherwise required to retain, at least 90 Days prior to the expiration ofthe

document retention period, Defendant shall notify the United States and the State ofits intention

to revert back to its ordinary document retention policy. Should the United States request copies,

Defendant may assert that certain documents, records, or other information are privileged under

the attomey~client privilege or any other privilege recognized by federal law. If Defendant

asserts such a privilege, it shall provide the following: (1) the title ofthe document, record, or

infonnation; (2) the date ofthe document, record, or infonnation; (3) the name and title ofeach

author ofthe document, record, or infonnation; (4) the name and title of each addressee and

recipient; (5) a description ofthe subject ofthe document, record, or information; and (6) the

privilege asserted by Defendant. However, no documents, records, data, or other information

created or generated pursuant to the requirements ofthis Consent Decree shall be withheld on

groWlds of privilege.

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76. Defendant may also assert that information required to be provided under this Section

is protected as CBI under 40 C.F.R. Part 2. As to any infonnation that Defendant seeks to

protect as CHI, Defendant shall follow the procedures set forth in 40 C.F.R. Part 2.

77. The infonnation retention requirements of Paragraphs 74 and 75 shall survive

termination ofthis Consent Decree and shall be enforceable by this Court even after such

tennination. Ibis Consent Decree in no way limits or affects any right ofentry and inspection,

or any right to obtain information, held by the United States or the State pursuant to applicable

federal or state laws, regulations. or permits, nor does it limit or affect any duty or obligation of

Defendant to maintain documents, records, or other infonnation imposed by applicable federal or

state laws, regulations, or permits.

XIII. EFFECT OF SETTLEMENTIRESERVATION OF

RIGHTS

78. This Consent Decree resolves the civil liability ofDefendant to the United States and

the State ofLouisiana for the violations alleged in the Complaint filed in this action from the

date those claims accrued through the date oflodging ofthis Consent Decree.

79. The United States and the State Plaintiffreserve all legal and equitable remedies

available to enforce the provisions ofthis Consent Decree, except as expressly stated in

Paragraph 78. This Consent Decree shall not be construed to limit the rights ofthe United States

or the State Plaintiffto obtain penalties or injunctive reliefunder the Act or implementing

regulations, or under other federal or state laws, regulations, or pennit conditions, except as

expressly specified in Paragraph 78. The United States and the State Plaintifffurther reserve all

legal and equitable remedies to address any situation that may present an imminent and

substantial endangerment to the public health or welfare or the envirolllllent arising at, or posed

by, Defendant's facilities, whether related to the violations addressed in this Consent Decree or

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otherwise.

80. This Consent Decree is not a permit, or a modification of any permit, under any

federal, state, or local laws or regulations. Defendant is resp0f.lsible for achieving and

maintaining compliance with all applicable federal, state, and local laws, regulations, and

permits; and Defendant's compliance with this Consent Decree shall be no defense to any action

commenced pursuant to any such laws, regulations, or pennits, except as otherwise expressly

provided herein. The United States and the State Plaintiff do not, by their consent to the entry of

this Consent Decree, warrant or aver in any manner that Defendant's compliance with any aspect

ofthis Consent Decree will result in compliance with provisions ofthe Act, or with any other

provisions offederal, state, or local laws, regulations, or permits, except as otherwise expressly

provided herein.

81. Nothing in this Consent Decree is intended to preclude Mosaic from increasing

production and annual mass emissions at any Sulfuric Acid Plant covered under the Consent

Decree following termination ofthis Consent Decree provided that Mosaic complies with all

applicable legal requirements, including as applicable PSD permitting.

82. This Consent Decree does not limit or affect the rights of Defendant or ofthe United

States or the State Plaintiff against or in respect of any third parties, not party to this Consent

Decree, nor does it limit or affect the rights ofthird parties, not party to this Consent Decree,

against Defendant, except as otherwise provided by law.

83. This Consent Decree shall not be construed to create rights in, or grant any cause of

action to, any thirdwparty that is not a Party to this Consent Decree.

XIV. COSTS

84. The Parties shall bear their own costs ofthis action, including attorneys' fees, except

46

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that the United States and the State Plaintiffs shall be entitled to collect the costs (including

attorneys' fees) incurred in any action necessary to enforce this Consent Decree or to collect any

portion ofthe civil penalty or any Stipulated Penalties due but not paid by Defendant.

XV. NOTICES

85. Unless otherwise specified herein, whenever notifications, submissions, or

communications are required by this Consent Decree, they shall be made in writing and

addressed to the United States Department ofJustice, U.S. EPA Headquarters, and the U.S. EPA

Region and the State Plaintiff where the relevant Facility is located, as follows:

Notice or submission to the United States:

Chief, Environmental Enforcement Section

Environment and Natural Resources Division

U.S. Department ofJustice

Box 7611 Ben Franklin Station

Washington, D.C. 20044·7611

Re: DOJ No. 90·5·2·1·08957

Notice or submission to the United States or to U.s. EPA:

Air Enforcement Division Director

U.S. Environmental Protection Agency

Office ofCivil Enforcement

Air Enforcement Division

1200 Pennsylvania Ave, NW

Mail Code: 2242A

Washington, DC 20460

and

Nathan Frank

U.S. Environmental Protection Agency

Region 5

AE·17J

77 West Jackson. Blvd.

Chicago, IL 60604

including an electronic copy to:

frank.nathan@epa.gov

47

,

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Notice or submission to the United States or to U.s. EPA that concerns the Uncle Sam Facility:

Jan Gerro and

U.S. Environmental Protection Agency

Region 6

1445 Ross Avenue

Suite i200

MaB Code: 6RC·EA

Dalias, TX 75202

Notice or submission to the State Plaintiff:

Lourdes Iturralde

Administrator, Enforcement Division

Office ofEnvironmental Compliance

Louisiana Department of Environmental Quality

P. O. Box 4312

Baton Rouge, Louisiana 70821-4312

Notice to Mosaic:

Diana M. Jagiella and

Senior Environmental and Corporate Counsel

The Mosaic Company

Atria Corporate Center, Suite E490

3033 Campus Drive

Plymouth, MN 55441

AnupaAhuja

U.S. Environmental Protection Agency

Region 6

1445 Ross Avenue

Suite 1200

MaB Code: 6EN·AA

Dalias, TX 75202

Jonathan S. Martel

Arnold & Porter LLP

555 Twelfth St., N.W.

Washington, DC 20004

Any Party may, by written notice to the other Parties, change its designated notice recipient(s) or

notice addressees) provided above. Notices submitted pursuant to this Section shall be deemed

submitted upon mailing, unless otherwise provided in this Consent Decree or by mutual

agreement ofthe Parties in writing.

XVI. EFFECTIVE DATE

86. The Effective Date ofthis Consent Decree shall be the date upon which this Consent

Decree is entered by the Court.

XVII. RETENTION OF JURISDICTION

87. The Court shall retain jurisdiction over this case until termination ofthis Consent

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Decree, for the purpose ofresolving disputes arising under this Decree or entering orders

modifying this Decree, pursuant to Sections XI and XVIII. or effectuating or enforcing

compliance with the tenus ofthis Decree.

XVIII. MODIFICATION

88. The terms ofthis Consent Decree may be modified only by a subsequent written

agreement signed by all ofthe Parties. Where the modification constitutes a material change to

any term ofthis Consent Decree, it shall be effective only upon approval by the Court. The

O&M Plans required by Paragraph 13 and the CEMS Plans required by Paragraph 14 may be

modified as provided in Paragraph 13 (for the O&M Plans) or upon written agreement ofthe

Parties without Court approval, unless any such modification effects a material change to the

tenns ofthis Consent Decree or materially affects the Defendant's ability to meet the

requirements or objectives ofthis Decree.

XIX. TERMINATION

89. After Defendant has maintained continuous satisfactory compliance with the

requirements of Section IV (Compliance Schedule and Requirements) and Section V

(Enviromnental Mitigation Projects/Additional Injunctive Reliet) for a period of one year after

achieving compliance with all ofthe requirements ofthis Consent Decree, has obtained all

pennits requi!ed by this Consent Decree, and has paid the civil penalty and any accrued

stipulated penalties as required by this Consent Decree, Defendant may serve upon the United

States and the State Plaintiff a request for termination stating that Defendant has satisfied those

requirements, together with all necessary supporting documentation.

90. Following receipt by the United States and the State PlaintiffofDefendant's request

for termination, the Parties shall confer informally concerning the request for termination and

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any disagreement that the Parties may have as to whether Defendant has satisfactorily complied

with the requirements for termination ofthis Consent Decree. Ifthe United States after

consultation with the State Plaintiff agrees that the Decree may be terminated, the Parties shall

submit, for the Court's approval, ajoint stipulation terminating the Decree.

91. Ifthe United States after consultation with the State Plaintiff does not agree that the ,

Decree may be terminated, Defendant may move the Court for tennination. However, Defendant

shall not file such a motion until 90 Days after service ofits request for termination. On any

such motion, Defendant shall bear the burden of proving that the conditions necessary for

termination ofthe Consent Decree have been satisfied.

XX. PUBLIC PARTICIPATION

92. This Consent Decree shall be lodged with the Court for a period ofno less than 30

Days for public notice and comment in accordance with 28 C.F,R, § 50.7. Final approval by the

State Plaintiffis subject to the requirements ofLa. R.S. 30:2050.7, which provides for public

notice ofthis Consent Decree in newspapers of general circulation and the official journals of

parish in which the Uncle Sam Facility is located, an opportunity for public comment,

consideration of any comments, and concurrence by the State Attorney General. The United

States and the State Plaintiff each reserves the right to withdraw or withhold its consent ifthe

comments regarding the Consent Decree disclose facts or considerations indicating that the

Consent Decree is inappropriate, improper, or inadequate. Defendant consents to entry ofthis

Consent Decree without further notice and agrees not to withdraw from or oppose entry ofthis

Consent Decree by the Court or to challenge any provision ofthe Consent Decree unless the

United States has notified Mosaic in writing that it no longer supports entry ofthe Consent

Decree.

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XXI. SIGNATORIES/SERVICE

93, Each undersigned representative of Defendant and the State Plaintiff, and the

Assistant Attorney General for the Environment and Natural Resources Division oftbe

Department ofJustice (or his or her designee) certifies that he or she is fully authorized to enter

into the tenus and conditions ofthis Consent Decree and to execute and legally bind the Party he

or she represents to this document.

94. This Consent Decree may be signed in counterparts, and its validity shall not be

challenged on that basis.

95. Defendant agrees to accept service ofprocess by mail with respect to all matters

arising under or relating to this Consent Decree and to waive the formal service requirements set

forth in Rules 4 and 5 ofthe Federal Rules ofCivil Procedure and any applicable Local Rules of

this Court including, but not limited to, service ofa summons.

XXII. INTEGRATION

96, This Consent Decree constitutes the final, complete, and exclusive agreement and

understanding among the Parties with respect to the settlement embodied in the Decree and

supersedes all prior agreements and understandings. whether oral or written, concerning the

settlement embodied herein. No other docwnent, except for any plans or other deliverables that

are submitted and approved pursuant to this Decree, nor any representation, inducement.

agreement, understanding, or promise, constitutes any part ofthis Decree or the settlement it

represents, and no such extrinsic docwnent or statement of any kind shall be used in construing

the tenns ofthis Decree.

XXIII. FINAL JUDGMENT

97. Upon approval and entry ofthis Consent Decree by the Court, this Consent Decree

51
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 53 of 60

shall constitute a final judgment ofthe Court in this action as to the United States, the State

Plaintiff, and Defendant. The Court finds that there is no just reason for delay and therefore

enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58.

Dated and entered this ~ay of_~'-'~,,",C"---__~, 20~.~

TATES DISTRICT JUDGE

52
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 54 of 60

THE UNDERSIGNED PARTII~~S enter.into this Consent Decree in the matter ofUnited States

and State ofLouisiana v. Mosaic Fertilizer. LLC (B.D. La.), relating to alleged violations ofthe

Clean Air Act:

FOR PLAINTIFF UNITED STATES OF

AMERICA:

~fit(c~.C ~CU~'---~-- ling Assistant Attorney General

nvironment and Natural Resources Division

United States Department.of Justice

DAVID ROSSKAM

Senior Counsel

Environmental Enforcement Section

Environment and Natural Resources Division

United States Department of Justice

P.O. Box 761 I

Washington, D.C. 20044-7611

(202) 514-3974

flMLETTEN

United StatesAttorney for the Eastern District of

Louisiana

SHARON D. SMITH

Assistant United States Attorney

500 Poydras Street

RoomB210

New Orleans, LA 70130

(504) 680-3004

53
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 55 of 60

Consent Decree Signature Page:

United States and State ofLouisiana v. Mosaic Fertilizer. LLC (E,n. La.)

GILES

dministrator

nforcement and Compliance Assurance

Acting

P~~S~ lrector

Air Enforcement Division

54
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 56 of 60

Consent Decree Signature Page:

United States and State ofLouisiana v. Mosaic Fertilizer, LLC (E.n. La.)

AWRENCE E. STARFIELD

Acting Regional Administrator

U.S. 'Environmental Protection Agency

Region 6

55

i~
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 57 of 60 •

WE HEREBY CONSENT to the entry ofthe Consent Decree in United States and State of

Louisiana v. Mosaic Fertilizer. LLC (B.D. La.), a civil action, subject to the public notice and

conunent requirements.

PRELIMINARY APPROVAL BY PLAINTIFF, THE STATE OF LOUISIANA,

DEPARTMENT OF ENVIRONMENTAL QUALITY:

. HATCH

Ass Secretary

Office ofEnvironmental Compliance

Louisiana Deparunent ofEnvironmental Quality

/{o'i-lln ~~ . "K""'ath"'""y""'M,l;-I;.~804) Christopher A. Ratcliff, Attorney Supervisor

LA Bar Roll #18675)

Office ofthe Secretary

Legal Affairs Division

Louisiana Department ofEnvironmental Quality

Post Office Box 4302

Baton Rouge, Louisiana 70821-4302

Telephone No. (225) 219-3985

Fax. No. (225) 219-4068

56
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 58 of 60

In the United States District Court for the Eastern District of Louisiana, United States of

America and State o[Louisiana v. ,Mosaic Fertilizer, LLe, Docket No. 09-6662, a civil

action, subject to the public notice and comment requirements.

FINAL APPROVAL BY PlAINTIFF, THE STATE OF LOUISIANA, THROUGH THE

DEPARTMENT OF ENVIRONMENTAL QUAIlTY:

CH

As ecretary

Office of Environmental Compliance

Louisiana Department of Environmental Quality

i

,

Kathy M. W gilt ar Roll # 30804)

Attorney III

Christopher A. Ratcliff, (LA Bar Roll #18675)

Attorney Supervisor

Office of the Secretary

Legal Affairs Division

Louisiana Department of Environmental Quality

Post Office Box 4302

Baton Rouge, Louisiana 70821-4302

Telephone No. (225) 219-3985

Fax. No. (225) 219-4068

Dated: p/.:LI/Oj

This Consent Decree has been reviewed, and is concurred in, by the Attorney General of

the State of Louisiana, pursuant to the provisions of La. R.S. 30:2050.7.

JAMES D. "BUDDY" CALDWELL

(see .att&ched letter)

ATTORNEY GENERAL

DATED:. _
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 59 of 60

JAMES D. ~BUODyH CALDWELL

AnO~N<V GENERAl

~tat. of ')l1mi5iaml

DEPARTMENT Of JUSTICE

P.D. BOX 94005

BATON ROUGf

70804-9005

December 16, 2009

Mr. Herman Robinson, Executive Counsel

La. Department of Environmental Quality Legal Affairs Division

P.O. Box 4302

Baton Rouge, LA 70821-4302

Re: AG Review of Federal Consent Decree,

United States ofAmerica and State ofLouisiana v. Mosaic

Fertilizer, Inc., U.S. D.C" Eastern District of Louisiana, Civii Action No, 2:09-<:v-06662

Dear Mr. Robinson:

Pursuant to the authority granted to me by RS, 30:2050.7, I approve the above referenced consent decree.

JDC/MKT/tp

,

r
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 60 of 60

Consent Decree Signature Page:

United States and State ofLouisiana v. Mosaic Fertilizer,'LLC (E,D, La.)

FOR DEFENDANT MOSAIC FERTILIZER, LLC:

Richard L.Mack .

Executive Vice President, General Counsel and

Corporale ~_ .

:rhe Mosaic Company

. . The f~llowing is the name and address'ofSettling Defendant's agent for service (ifdifferent

from above). and the name and address of Settling Defendant's counsel. .

Agent for Service

. Diana Jagiella

The Mosaic Company

Senior Environmental and

COlJlOrale Counsel

3033 Campus Drive, Suite E<\90

Plymouth, MN 55441 .

58

Counsel

Diana Jagiella

The Mosaic Company

Senior EnVironmental and

ColJlOrale Counsel '

3033 Campus Drive. Suite B490

Plymouth. MN 5S441

.'