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

IN TIlE UNITED STATES DISTRICT COURT FORTHE EASTERN DISTRICT OFLOUISIANA

UNITED STATES OF AMERICA and STATE OF LOUISIANA, 

### Plaintiffs,
v. 

### MOSAIC FERTILIZER, LLC, Defendant. ) ) ) ) 

### ) ) ) ) ) ) ) ) Civil Action No. 09·6662 

### Section: I'D" Magistrate: (2) .'



### CONSENT DECREE

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

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 ofAmerica, on behalfofthe United States Envirorunental Protection Agency and the State ofLouisiana, on behalfofthe 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 agreedto 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 meetthe 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


### 2

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 4 of 60

emission limitations required by this Consent Decree will result in a reduction in emissions ofat 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 orthis ConsentDecree, nor the execution and implementation ofthis Consent Decree, shall be treated as an admission or evidence ofany 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 ofany testimony, withoutthe adjudication or admission ofany 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 hasjurisdiction 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 Districtpursuant 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

3

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

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 thisjudicial district. Except as expressly provided for herein, this Consent Decree shall not create any rights in or obligations ofany Party other than the Plaintiffs and Defendant. 2. For purposes ofthis Consent Decree, Defendant agrees that the Complaint states claims upon which reliefmay be granted pursuantto Sections 111 and 165 ofthe Act, 42 U.S.C. §§ 7411, 7475 andlor porsuantto state law. 3. Notice ofthe commencement ofthis action has been given to the State ofLouisiana,
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 otherentities or persons otherwise bound by law. 5. At least 30 days prior to any transfer ofownership or operation ofthe Uncle Sam Facility or any Sulfuric Acid Plant atthe**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 oftheprospective transfer to the United States and to the State Plaintiff, in accordance with Section XV ofthis Decree (Notices). The time period setout 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,


### 4 , 

### ,

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 6 of 60

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 ofbeing bound by the applicable tenns ofthis Consent Decree; b. the transferee provides the United States and the State Plaintiffwith 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 respectto 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 inthe 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 ifall sulfurtrioxide (SO,) exiting the converterwere used to produce sulfuric acid monohydrate. Forpurposes ofthis definition, scrubber byproduct (ifany) shall be considered to be included in "100% Sulfuric Acid Produced".


### 5

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 7 of 60

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

### LDEQ Identification ("!.D.") NumberEQT 67.
c. "Acid mist" shall mean the pollutant sulfuric acid mist as measured

### by Method 8 of40 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 aregenerative aqueous amine solution to absorb S02 from Sulfuric Acid Plant tail gas, stearn strips**S~** 

### from the amine solution, and produces a 

### concentrated S02 streamthat 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 (ifapplicable), to analyze, and to 

### provide apeImanent record ofemissions orprocess parameters. f. 

### "CEMS Plan" shall mean one ofthe CEMS Plans for the ATrain 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. "ConsentDecree" or "Decree" shall mean this ConsentDecree and all appendices attached hereto, but in the event ofany conflictbetween 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 acalendarday lUlless expressly stated otherwise. k. "Defendant" shall mean Mosaic Fertilizer, LLC.


### 6

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 8 of 60



### 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 DepartmentofEnviromnental Quality.


### o. "Long-Tenn Limit" shall mean a 365-dayrolling average sulfurdioxide emission limit expressed as pounds ofsulfur dioxide emittedperton ("lb/too") of 100% Sulfuric Acid Produced. Compliance with the Long-Tenn Limit shall be detennined each day in accordance with 

### the CEMS Plan forthe 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 notreasonably preventable failure ofairpollution control equipment, process equipment, or aprocess to operate in a nonnal orusual manner, but shall not include failures that
are caused in partby poor maintenance orcareless operation. q. "Mass Cap" shall mean the maximum amount ofS02 emissions foreach Sulfuric Acid Plantexpressed intons ofS02emitted during each 12-month period consisting of the mostrecently concluded month and the eleven months immediately preceding it. In determining compliance with the Mass Cap in accordance with the CEMS Plan forATrain and DTrain, all S02 emissions from a Sulfuric Acid Plant, including Startup, Shutdown and Malfunction shall be counted.
r. "Month" shall mean calendarmonth. 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
7

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 9 of 60

Operating Permit as EmissionUnit 054. 1. "NSR" shall mean a program for new source review under the Act. Specifically, "non-attainmentNSR" and "majorNSR" as used herein refer to the non-attainment
area new source review program within the meaning ofPart D ofSubchapter I ofthe Act, 42 U,S.C. §§ 7501-7515; 'IminorNSR" as used herein refers to any state, regional or local statutes, ordinances or regulations calling for review and approval of**non~major** new and modified
sources ofairpollution.
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 ConsentDecree identifiedby an Arabic numeral. y. "PSD" shall mean the attainment area new source review program (prevention ofsignificant deterioration) within the meaning ofPart 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.


### 8

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 10 of 60

bb. "Section" shall mean aportion ofthis ConsentDecree identified by an upper case roman numeral.
cc. "Short-Term Limit" shall mean a 3-hour rolling average S02emission limit expressed as pounds ofS02emitted perton of 100% Sulfuric Acid Produced. Compliance with the Short-TermLimit shall be calculated 

### in accordance with the CEMS Plans attached to this Consent Decree as Appendices B and C. The Short-TermLimit does not apply during periods of Startup, Shutdo"WIl, orMalfunction. dd. "Shutdown" shall mean the cessation ofoperation ofa Sulfuric Acid Plant for any reason. Shutdo"WIl begins at the time the feed ofelemental sulfurto the furnace ceases and ends 3 hours later orwhen 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, theperiod of time, beginning when the feed ofelemental sulfurto 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 aportion ofaParagraph ofthis ConsentDecree identified by a lower case Roman letter. 

### ii. "Sulfuric Acid Plant" or "Plant" shall mean aprocess 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 apennitrequired by orissued pursuantto the requirements of42 U.S.C. §§ 7661 -766If. kk. "Ton" or "Tons" shall mean shortton or shorttons.


### 9

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 11 of 60

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 ofAmerica, acting on behalfof 

### 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 laterthan 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 of500 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 ofS02. Defendant shall demonstrate compliance with this Mass Cap as ofMay 31,2012 (forthe 12-month period ofJune 2011 through May 2012) and thereafter as ofthe last Day of each month for the immediately preceding consecutive 12-monthperiod, 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

10 · .•.....

### , ..

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

reports submittedpursuantto Subparagraph 25.b, e, No laterthan 

### May 1,2013, the ATrain shall meet an S02 

### Short-Tenn Limit of 1,0 lb/ton except as otherwise specified in Subparagraph 8.g. f. 

### No laterthan 

### May 1, 2013, the ATrain shall be subjectto aMass Cap of402 tons ofS02 

### except as otherwise specified in Subparagraph 8.g, Defendant shall demonstrate compliance with this Mass Cap on April 30, 2014 (forthe**12~month** 

### period ofMay 1,2013 through April 30, 2014); and thereafter as ofthe last Day ofeach month for the immediately preceding consecutive 12-monthperiod. In the interimperiod ofMay 2013 to March 2014, the ATrain shall comply with the monthly Mass Caps specifiedin Appendix D. g, IfMosaic elects to comply with this Paragraph 8 by installing an Amine Based Regenerative Gas Absorption Systemon the ATrain and, through the demonstration period specified in Subparagraph d above, Mosaic determines thatit is technically infeasible, using the Amine Based Regenerative Gas Absorption System, to meetthe Short-TermLimit 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 stringentemission limits mustbe submitted no later than March 31, 2013; otherwise, Subparagraphs 8.e and 8.fwill remain in full force and effect. IfMosaic 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
orestablish a Short-Term limit in the following manner:
I. 

### Mosaic shall propose a Short-TermLimitthatreflects the lowest feasible emission rate from the ATrain using the Amine BasedRegenerative Gas Absorption System in accordance with the manufacturer's specification and recommendation for operation, butis in no event greaterthan 1.5 lb/ton. 

### Mosaic will also propose a Mass Cap that is less

11

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 13 of 60

stringent

### than the Mass Cap in Subparagraph f above by the same proportion as the proposed Short-Tenn Limit is less stringentthan 1.0 Ib/ton and will propose proportional adjustments to the interim Mass Caps in Appendix D (e,g., ifMosaic 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 of1,0 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 ofall efforts taken by Mosaic or its technology vendors, contractors, or consultants to achieve compliance with a Short-Term Limit of1.0 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

12

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 14 of 60 

# ·."



### 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 stringenttechnically feasible limit. 

### iii. After an opportunityto 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 otherinformation U.S. EPA deems necessary in orderto evaluate Mosaic's request for less stringentemission limits. IfU.S. EPA requests additional information, Mosaic will provide such information within thirty (30) 

### days or such otherperiod 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 (ifany) afterreceipt ofMosaic's request, or such otherperiod as agreed upon by the Parties, U.S. EPA, after consultation with LDEQ, shall approve or disapprove the proposed**Short~** 

### TermLimit and corresponding Mass Cap in writing. If

### U.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, butin no event will U.S. EPA require a Short-Tenn Limit below 1.0 lb/!on 

### or aMass Cap below 402 tons. U.S. EPA will also establish aproportional 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 orto establish any Short-Tenn Limitless stringentthan 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 Systembased on the criteria

13

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 15 of 60

specified in Mosaic's proposal under Subparagraph 8.g.i. consistentwith 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. 

### DTrain: 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 ofOctober 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-monthperiod ofOctober 1, 2011 through September 30, 2012); b. a Mass Cap of884 tons. Mosaic shall demonstrate compliance with this Mass Cap as ofOctoher 1, 2012 (for the 12-monthperiod ofOctober 1, 2011 through September 30, 2012); and thereafter as ofthe 

### first ofeach month for the immediatelypreceding consecutive 12- monthperiod, 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 of0.15 Iblton of

14

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 16 of 60

100% SulfuricAcid Produced, as setforth at 40 C.F.R. 

### § 60.83, no laterthan the Date ofBntry. Compliance withthis limit is to be demonstrated using the performance test required by 40 C.F.R. Part 60, SubpartH. 11. NSPS Applicability: No laterthan 

### June 1,2011, ATrain 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 forpurposes 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 setforth in this ConsentDecree shall be deemed to satisfy all applicable initial notification and compliance demonstration requirements ofNSPS Subparts A and H. 12. BestPractices: At all times after the Effective Date ofthis Consent Decree, including periods ofStartup, Shutdown, and Malfunction. Defendant shall to the extentpracticable maintain and operate each ofits Sulfuric Acid Plants, including associated airpollution control equipment, in amanner consistent with good airpollution control practices for minimizing emissions, consistent with 40 C.F.R. 

### § 60.1 1(d). 13. Q.• 

### & M Plans: Mosaic shall implementthe O&M Plan for ATrain no laterthan June 1, 2011 and for the D Train no laterthan October 1, 2011. The O&M Plans describe the operating and maintenance procedures necessary to: (i) minimize the frequency ofSulfuric Acid Plant Shutdowns (thereby reducing the nwnber ofStartups ofeach Sulfuric Acid Plant); and (ii) to the extentpracticable, maintain and operate each ofits Sulfuric Acid Plants. including associated airpollution control equipment, in amanner consistent with good airpollution control
15

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

practices for minimizing the quantity ofemissions ofall pollutants subjectto emission standards
as ofthe Effective Date ofthis ConsentDecree 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 submitthe updated plan to 

### U.S. EPA and LDEQ. Upon submission ofeach O&M Plan, Mosaic shall immediately implementthe O&M Plan. U.S. EPA and/or the LDEQ may provide comments and/orrecommendations with respect to each O&M Plan. 14. Emissions Monitoring:


### a. Installation, Certification, and Calibration: 

### By no laterthan 

### the following dates, Mosaic shall implementthe CEMS Plan specified in subparagraph c below: i. 

### ATrain: June 1, 2011
u. D Train: October 1,2011 

### b. CEMS Operation: Afterthe dates setforth 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 longerthan 

### 24 

### hours, are attached in Appendices B and Cfor the A Train and the D Train, respectively. Mosaic shall implementthe CEMS Plans at the A and D Trains. The monitoring methods specified in 

### these CEMS Plans are deemed approved as


### 16

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 18 of 60

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 rapidrepairs to the equipment. 

### 15. Performance Testing:
a. Dates. Mosaic shall conduct theperformance tests required in this Paragraph 15 by no later than the following dates: i. 

### ATrain: June I, 2011
lI. 

### DTrain: September 30, 2011 iii. ETrain: December31,2010andDecember31,2012 b. Acid Mist. Mosaic, shall conduct a performance test measuring the emission rate ofacid 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 ofS02 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. Ifapplicable, 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 testrequired under 40 C.F.R. 

### § 60.8. Mosaic shall take all steps necessary to assure accurate measurements of100% sulfuric acid production during each testrun. d. Advance Notification. By no laterthan 30 days before anyperformance test required bythis Paragraph 15 is conducted, or such otherperiod agreed upon by the Parties, Mosaic shall provide notice ofits intent to 

### conduct such testto 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, adescription ofthe planned operating rate and operating conditions, and the procedures that 

### will be used to measure 100% Sulfuric Acid Produced. IfV.S. EPA orLDEQ requires any adjustment ofthe testing protocol or operating conditions, Mosaic shall make such adjustments and conductthe perfonnance test in conformity with U.S. EPA's andlor LDEQ's requirements.
e. Report ofResults. By no laterthan 60 Days after conducting aperformance testrequired under this Paragraph 15, or such otherperiod as agreed upon by the Parties, Mosaic shall submitto U.S. EPA and to LDEQ, pursuantto the requirements ofSection XV (Notices), a report documenting the results ofthe performance tests. 

### 16.. Cessation ofOperation:
a. Upon the cessation ofoperation ofthe A orD Train, Defendant shall surrender all air pollution pennits for the AorD 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 ofemission reductions and resulting from such cessation ofoperation. b. Provided that Defendanthas complied with 

### the requirements ofSubparagraph
18

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

aabove, then upon the cessation ofoperation ofA orD Train, that Sulfuric Acid Plant shall
cease to be subjectto the provisions ofthis Consent Decree applicable to the Sulfuric Acid Plant from whichthe operations are ceased, exceptfor the obligation to pay any stipulatedpenalties and civil penalty, ifnotpreviously paid, that may be due pursuant to Sections VIII or IX with respectto that Sulfuric Acid Plant and the recordkeeping requirement in Paragraph 74. 

### V. ENVIRONMENTAL MITIGATION PROJECTS/ADDITIONAL INJUNCTIVE RELIEF 17. Mosaic shall implementthe environmental mitigation projects ("Projects") and additional injunctive reliefdescribed in this Section. 

### By entering into this ConsentDecree, Mosaic certifies that it is not. to its knowledge, otherwise required by law to perfonn the Projects described in this Section, and thatMosaic will not use any Projectorportion thereof, to satisfy any obligations that itmay have under other applicable requirements oflaw.
a. E Train. Mosaic shall take the following measures to reduce and demonstrate reductions in emissions atthe E Train.
I. 

### By no laterthan December 30, 2010, Mosaic shall install cesimn promoted catalystin the fourth bed ofthe ETrain converter. Mosaic shall selectcatalysttrade named "SCX 2000" manufactured by MECS, Inc.• "VK 69" manufactured by HaldorTopsoe. or equivalentcatalyst approved by U.S. EPA in writing no laterthan 

### June 30, 2010. ii. By no laterthan June 30. 2012. Mosaic shall evaluate the perfonnance ofthe ETrain converter and heat exchangers and make any improvements it deems necessary to reduce emissions. improve conversion, or otherwise improve perfonnance ofthe ETrain 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 laterthan July 1.2012. the ETrain shall be subjectto aMass 19 

# . "

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 21 of 60

Cap of 1,832 tons peryear ofSOz. Mosaic shall demonstrate compliance with this annual Mass Cap as ofJuly 1,2013 (forthe 12-monthperiod ofJuly 1,2012 through June 30, 2013) and thereafter as ofthe first ofeach month forthe immediatelypreceding consecutive l2-month period. iv. Mosaic shall conductperformance tests ofthe ETrainby the dates and in the manner specified in Paragraph 15 ofthis ConsentDecree. 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 SulfuricAcid Plant is permanently shut down. Emission reductions generated by shutting down the Mulberry Sulfuric Acid Plant shall notbe considered
as creditable contemporaneous emissions decreases for the purpose ofobtaining netting credits under the 

### eAA's NSR and PSD programs. In the event ofany future resumption ofacid production atthe Mulberry Sulfuric Acid Plant, that emissions unit will be considered to have
zero emissions ofall regulated pollutants underNSR orPSD as its baseline actual emissions for purposes ofNSR orPSD 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 withoutlimitation pennits for construction ofpollution control technology and the installation ofequipment. Defendantmay seekreliefunder the provisions ofSectionX (Force Majeure) ofthis Consent Decree for any delay in the perfonnance ofany such obligation resulting from afailure to obtain,
or adelay in obtaining, any pennit or approval required to fulfill such obligation ifDefendant
20

### 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 ormajorNSR 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 of40 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 ConsentDecree; b. Forthe ATrain, the emission limit during Startup;
c. Forthe ATrain, the acid mist emission limit established in Paragraph 

### 10 of this ConsentDecree; d. The monitoring requirements established in the CEMS Plans; and
e. Forthe A Train, the applicability of40 C.F.R. Part 60, Subparts A and H and 

### all requirements therein. 21. Mechanism for Title V Incorporation: The incorporation ofthe requirements ofthis ConsentDecree into Title V Permits shall be in accordance with 

### state Title V rules, including applicable administrative amendmentprovisions ofsuch rules. 22. Notwithstanding the reference to aTitle V pennitin this Consent Decree, the enforcement ofsuchpermit shall be 

### in accordance with 

### its own terms and the Act. The Title V pennit shall not be 

### enforceable under this ConsentDecree, although any term orlimitestablished by orunder this Consent Decree shall be enforceable under this ConsentDecree regardless of whether such term has or will become part ofaTitle Vpennit, subjectto the terms ofSection XIX (Termination) ofthis ConsentDecree. Nothing in this ConsentDecree is meant to preclude enforcement ?fthe underlying pennit orterms 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 ofeach application for afederally enforceable permitnecessary to implement the requirements ofthis ConsentDecree that is filed afterthe Effective Date, as well as acopy of any pennitproposed as aresult ofsuch application, to 

### allow for timely participation in any 

### 22

### 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 orpart ofthe latter submission ifcopies ofsuch permits have already been submitted to U.S. EPApriorto 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 ofobtaining netting credits or offsets in any PSD, majorNSR, andlor minorNSRpermit or pennitproceeding; provided however, that nothing in this Consent Decree is intended to prohibit Defendant from:
a. using emission reductions from the installation ofcontrols required by this Consent Decree in determining whether a project that includes both the installation ofcontrols under this Consent Decree and other construction or modifications (including construction or modifications that affect the facility's production capacity) that occur atthe same time and are permitted as a single project triggers PSD and/orNSRrequirements; 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 underthis Consent Decree;


### 23

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 25 of 60

d, using netting reductions or emissions offset credits for any pollutants other than S02or sulfuric acid mist. 

### VII, REPORTING REQUIREMENTS 

### 25, Defendant shall submitthe following reports: a, For each Sulfuric Acid Plant, Defendant shall submit to 

### D,S, EPA and LDEQ, 

### design specifications documenting howDefendant intends to comply withthe emission limits established in Paragraphs 8 and 9, no laterthan one yearbefore 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 laterthan January 31 and July 31 ofeach year, with the 

### first report due on January 31, 2010, Each semi

### annual 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 ofSections IV and V above; (2) 

### any significant modifications to previouslysubmitted design specifications ofany pollution control system, orto 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 ofSections IV and V above, together with implemented orproposed solutions; (4) a summary ofthe emissions monitoring and testing data collectedpursuantto this ConsentDecree including the mass ofS02 emitted and the quantity of 100% Sulfuric Acid Produced during the reporting period; (5) a description ofall periods ofStartup, Shutdown, and Malfunction for A and DTrains, including the quantity of802 emitted and the causes ofMalfunction(s); (6) the date and time identifying each period during which the CEMS was inoperative except for zero and span checks and the
24**~-**

### ,

### 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 withthis 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. IfDefendant violates, orhas reasonto believe that it may violate, any requirement ofthis Consent Decree or ofany applicable pennit, Defendant shall notify the United States and the State Plaintiffofsuchviolation and its duration or anticipated likely duration, in writing, within 35 calendardays ofthe Day Defendant first becomes aware ofthe violation orpotential 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 ofa 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 obligationto provide the notice required by SectionX (Force Majeure). d. Whenever any violation ofthjs Consent Decree or ofany applicable pennit or any other eve_nt affecting Defendant's performance under this Decree, orthe perfonnance ofa Sulfuric Acid Plant, may pose an immediate threat to the public health orwelfare 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.

25

### 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 

### UDderpenalty oflaw that Ihave examined and am familiarwith the infonnation submitted in this document and all attachments and that this document and its attachments were prepared eitherby 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 significantpenalties 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 ofany 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 submittedby 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.


### 26

### 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 afterthe Effective Date ofthis ConsentDecree, 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 ofany 

### transmittal documentation (which shall reference 

### DOIcase 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 ofLouisianaby certified checkmade payable to LDEQ and sentto Darryl Serio, Fiscal Director, Office ofManagement and Finance, LDEQ. P.O, Box 4303, Baton Rouge, Louisiana 70821-4303. 31. Ifany 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. Interestpayment under this Paragraph shall be in additionto any stipulatedpenalty due. No amount ofthe civil penalty or interestpaid 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 underthis 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 paymentis for payment ofstipulatedpenalties and shall include the same identifying infonnation required by Paragraph 30 (Civil Penalty) above. 33. Failure to Pay Civil Penalty: If

### Defendantfails 

### 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 perday for each daythatthepaymentis late. Late payment ofthe civil penalty shall be made in accordance with Paragraph 30 above. Each stipulatedpenalty due underthis Paragraph shall be paid exclusively to the Party to 

### whom Defendantfailed to make timely payment ofthe 

### full civil penalty due. 34.**Short~** 

### Term SOz Limits setforth in Paragraphs 8 and 9.


### a. The 

### following stipulated penalties shall accrue for each violation ofthe ShortTenn S02 Limitin any non-overlapping 3-hourperiod: Percentage Overthe Limit 1- 50% 

### 51-100% Over 100% Penalty perViolation 

### $250 $500 $750 No separate stipulatedpenalty 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-TermLimit (and corresponding Mass Cap) for ATrain following the demonstration period under Paragraph g.g, and solely during the period oftime between Mosaic's invocation ofDispute 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


### 28

### 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 sixmonths 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 afterthe 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, ifU.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 of1.2 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 of1.2 lb/ton during the pendency ofthe dispute. Thus, in this example, the otherwise applicable stipulated penalty under Subparagraph 34.a. (fora 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; if

### it is not resolved until aftertwelve months, the stipulated penalty accrual would be further reduced aftertwelve 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% Penaltyper 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 perViolation $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 ofa Mass Cap identified in Paragraphs 8 and 9, a stipulated penalty of$15,000 per ton or fraction ofa 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

30

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

month. AMass Cap violation may occur only one time permonth and only when the sum qfthe S02 emitted in the immediately preceding 12 months exceeds the Mass Cap. b, Solely in the event ofadispute regarding the Mass Cap (and corresponding Short-Tenn Limit) forA Train following the demonstrationperiod under Paragraph 8.g, and solely during the period oftime between Mosaic's invocation ofDispute Resolution and the Court's decision resolving such dispute, and provided that Mosaic complies with the Mass Cap associated with its proposed Short-Term Limitunder Paragraph 8.g.i (in accordance with Paragraph 8.g.iv), the stipulatedpenalties 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 Courttake more than six months to resolve the dispute following the time the dispute is briefed and submitted for decision, the stipulatedpenalty 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 bythe Court, and at 25% ofthe adjusted amount in each month after the twelfth month following submission ofthe dispute. Forexample, if

### U.S. EPA determines underParagraph 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 stipulatedpenalty liability for exceeding the 402 tons Mass Cap shall accrue at 40% (20% x 2) ofthe otherwise applicable stipulatedpenalty under subparagraph a., provided that Mosaic complies with its proposed Mass Cap of483 tons during the pendency ofthe dispute. Thus, in this example, the otherwise applicable stipulatedpenalty 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**,~--,** ,--

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

stipulated penalty $900,000. In the event ofadispute and should the Courteventually resolve the dispute in U.S. EPA's favor, Mosaic's stipulatedpenalty 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 notresolved until at least six months after submission ofthe dispute to the Court, the stipulatedpenalty accrual would be reduced after six months and would accrue at $180,000 permonth (50% x $360,000) beghming with the seventh month following submission ofthe dispute to the Court; ifnotresolved until aftertwelve months, the stipulatedpenalty accrual would be further reduced after twelve months and would accrue at $90,000 permonth (25% x $360,000) beginning with 

### the thirteenth month following submission ofthe dispute to the Court. 38. Monitoring Reguirements. The following stipulatedpenalties shall accrue per day where the CEMS fails to operate in accordance with any requirementidentified in Paragraph 14 and/or the applicable CEMS Plan. This will be calculated overthe course ofeach calendaryear (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 PerDay
$1500 $2000 $2500 

### e.g., 

### ifMosaic fails to operate aCEMS in accordance with any requirement identified in Paragraph 14 and/or the applicable CEMS Plan for 40 days in any calendaryear, consecutive or not, the result 

### will be $78,000 in stipulated penalties 

### (i.e. ($1500 x 14) 

### + ($2000 x 16) 

### +($2500

x 

### 10»).
32 j-;

### 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 ofany requirements identified in Paragraph 15 relating to performance testing: Period ofNoncompliance Penalty Per Violation Per Day 

### 1st

- 14th day $1000 15th-30thday $1500 31stday and beyond $2000 40. Opacity Limits 

### in the NSPS for A and D Trains. For each violation atthe A and D 

### Trains ofthe opacity requirements of40 C.F.R. § 60.83(a)(2), as demonstrated by aMethod 9 reference test, $40 per six (6) minute average reading in excess ofthe limit, up to a maximum of 

### $2000 perday. 41. Permitting Requirements. The following stipulated penalties shall accrue per violation per day for each violation ofany 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

- 

### 14thday $1000 15th

- 30th day $1500

. 31 st 

### day and beyond $2000 42. Envirorunental Mitigation Projects!Additional Injunctive Relief. Stipulatedpenalties shall accrue for each violation ofany 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 stipulatedpenalty of$15,000 perton or fraction of S02 emitted in excess ofthe applicable Mass Cap (using the same calculation methodology


### 33

### 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 ofParagraph 17, the following stipulated penalties shall accrue perviolation 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 ofan 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 perday for Defendant's failure to comply 

### with any requirement, not specifically referenced in Paragraphs 32 through 43 above, ofthis Consent Decree or ofany plan or schedule approved under this Consent Decree, within the specified time established by or approvedunder this Decree:

34

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 36 of 60

Period ofNoncompliance Penalty PerViolation PerDay .. __.,..,.. '....',._'..



### 1st -14th day $150 15th

- 30th 

### day $250 31stday and beyond $500 

### 45. Stipulatedpenalties'underthis Section shall beginto accrue onthe day after performance is due or on the day aviolation occurs, whicheveris applicable, and shall continue to accrue until perfonnance is satisfactorily completed oruntil the violation ceases. Stipulated penalties shall accrue simultaneously for separate violations ofthis ConsentDecree. Defendant shall pay any stipulatedpenalty within 30 days ofreceiving the United States' orthe State Plaintiffs written demand. The United States and/orthe State Plaintiffmay seek stipulated penalties under this Section. Where both sovereigns seek stipulatedpenalties for the same violation ofthis ConsentDecree, Defendant shall pay 50 percentto the United States and 50 percentto the State Plaintiff, Where only one sovereign demands stipulatedpenalties for a violation, it shall make that demand on its own behalf, and the Defendant shall pay the full amount ofthe stipulatedpenalties 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 stipulatedpenalties or otherreliefotherwise due itunder this Consent Decree. The detennination by one sovereign not to seek stipulatedpenalties, or subsequently to waive orreduce the amount it seeks, shall notpreclude the other sovereign from seeking stipulated penalties up to the full amount owed to 

### that sovereign, 47. Stipulatedpenalties shall continue to accrue as providedin Paragraph 45 above, during any dispute resolution, butneed not be paid until the following:
35

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 37 of 60

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 accruedpenalties determined owed, together with interest, at the rate specified in 28 U.S.C. 

### § 1961, to the United States and/or the State Plaintiffwithin 30 days ofthe effective date ofthe agreement or the receipt ofU.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 Plaintiffprevails 

### 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. Ifany Party appeals the District Court's decision, Defendant shall pay all accrued penalties owed, togetherwith 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 disputebecomes 

### 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 DOJNo. 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.


### 36

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 38 of 60

50. IfDefendant 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 ofSection 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 butnot 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· attainmentNSR 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 eventbeyond the control ofDefendant, its contractors, or any entity controlled by Defendant that delays the performance ofany 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 ofany 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 ofDefendant's obligations under this Consent Decree, or Defendant's failure to make an administratively complete and timely applicationfor any required approval or
37

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 39 of 60

pennit, shall notconstitute circumstances beyond its control, or serve as a basis for an extension oftime underthis 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 relevantpennit is beyond the control ofDefendant. 54. Ifany 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 ofdue 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 orby certified mail, return receipt requested, to U.S. EPA andthe State Plaintiffas specified in Section XV (Notice). 55. Failure by Defendant to comply withthe notice requirements specified in Paragraph 54 above shall preclude Defendant from asserting any claims ofForce Majeure with respectto 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, ifnotice is delinquent, Defendant shall be precluded from asserting any 

### 38

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 40 of 60

claims afForce Majeure asjustification for failure to comply with any requirement ofthis Consent Decree for a period oftime equal to thetime by which notice was delinquent. 56, The United States, after consultation with the State Plaintiff, will notify Defendant in writing regarding the United States' positionregarding Defendant's claim ofa 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 thatthe 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 aperiod equivalent to the delay actually caused by the Force Majeure Event. Such stipulation shall 

### be filed as a material modification to the Consent Decreepursuant to the procedures ofSection XVIII (Modification), Defendant shall not be liable for stipulated penalties for the period ofany such extension, 58, Ifthe United States, after consultation with the State Plaintiff, does not accept Defendant's claim ofForce 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 stipulatedpenalties) for aperiod 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


### 39

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 41 of 60

a Force Majeure Event. 59. Defendant shali also bear the burden ofproving the duration and extent ofany delay(s) attributable to such Force Majeure Event. Any extension ofone compliance date based
on a particular Force Majeure Eventmay, but shall not necessarily, result in an extension ofa 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 ofDefendant's serving ofa force majeure notice orthe 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 ofwork underthe 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 withinthe meaning ofthis Section: construction, installation, labor, or equipment shortages or delays; acts ofGod, such as a hurricane; acts ofwar orterrorism; an order by a government official, government agency, or otherregulatory authority. The listing ofthe foregoing types ofevents shall neither (1) preclude the United States (orthe Court, in the event ofa dispute) from



### 40 , ::

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 42 of 60

determining that aparticular 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 ofa 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 ofDefendant 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 thatthe Party invoking the procedures has made a good faith attemptto resolve the matter with the other Party orParties 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) ofa 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 ofinfonnal negotiations shall not extend

41

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 43 of 60

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 eventthat 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/orthe 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 theEastern District ofLouisiana local rules. Such petition shall be filed no laterthan 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 ofLouisiana local rules, upon motion to the Court ofone 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 Plaintiffare 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 bearthe burden ofdemonstrating that its position complies with this Consent Decree and the Act. The


### 42

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 44 of 60

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 mustbe 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 eitherParty as aresult of invocation ofthis Section. 72. In 

### appropriate circumstances, as part ofthe resolution ofany matter submittedto this Court under this SectionXI, the Parties involved in the dispute may agree to, orthe Courtmay order, an extension ormodification ofthe schedule for completion ofworkunder the Consent Decree to account for the delay 

### in the work that occurred as aresult ofdispute resolution. Defendant shall be liable for stipulatedpenalties for its failure thereafter to complete the workin accordance with 

### the extended ormodified schedule. Invocation ofdispute resolutionwith respect to any ofDefendant's obligations under this ConsentDecree shall not, ofitself, excuse or extend the time for perfonnance ofany other obligation ofDefendant under this Consent Decree. XII. INFORMATION COLLECTION AND RETENTION 

### 73. The United States, the State Plaintiff, and theirrepresentatives, including attorneys, inspectors, contractors, and consultants, shall have the right ofentry into any ofthe Facilities coveredby t4is ConsentDecree, at 

### all reasonable times, upon presentation ofcredentials, to: 

### monitor the progress ofactivities required undertJris ConsentDecree; verify any data or infonnation submitted to the United States or a State Plaintiffin accordance with the tenns of this ConsentDecree; obtain samples and, upon request, splits ofany samples taken by Defendant
or its representatives, contractors, or consultants; obtain documentary evidence, including photographs and similardata; and assess Defendant's compliance with this ConsentDecree.

43

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 45 of 60

74. Until at least three years afterthe termination ofthis Consent Decree, Defendant shall retain, and shall instruct its contractors and agents to preserve, all**non~identical** copies ofall 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 mannerto Defendant's performance ofits obligations under this Consent Decree. This information retention requirement shall apply regardless ofany contrary corporate or institutional policies or procedures. At any time during this**information~retention** period, the United States or a State Plaintiffmay request copies ofany documents, records, or other infonnation required to be maintained underthis Paragraph. 75. IfDefendant desires to revert

### to its ordinary document retention policy in regards to documents it is otherwise required to retain, at least 90 Days priorto 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 assertthat certain documents, records, or other information are privileged under the**attomey~client** privilege or any otherprivilege recognized by federal law. IfDefendant 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 ofeach 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 ofprivilege.


### 44

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 46 of 60

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 ofParagraphs 74 and 75 shall survive 

### termination ofthis ConsentDecree and shall be 

### enforceable by this Courteven after such tennination. Ibis ConsentDecree 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. orpermits, 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, orpermits. 

### XIII. EFFECT OF SETTLEMENTIRESERVATION OF RIGHTS 78. This Consent Decree resolves the civil liability ofDefendant to the United States and the State ofLouisianafor the violations alleged in the Complaint filed in this action from the date those claims accrued throughthe date oflodging ofthis Consent Decree. 79. The United States and the State Plaintiffreserve all legal and equitable remedies 

### available to enforce the provisions ofthis ConsentDecree, except as expressly statedin Paragraph 78. This Consent Decree shall not be construed to limit the rights ofthe United States


### orthe State 

### Plaintiffto obtain penalties orinjunctive reliefunder the Act or implementing regulations, orunder 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, orposed by, Defendant's facilities, whether related to the violations addressed in this Consent Decree or 

### 45

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 47 of 60

otherwise. 

### 80. This Consent Decree is not apermit, or a modification ofany 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, orpennits, except as otherwise expressly provided herein. The United States and the State Plaintiffdo 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, orwith 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 affectthe rights ofDefendant or ofthe United States or the State Plaintiffagainst or in respect ofany 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 beartheir own costs ofthis action, including attorneys' fees, except 

### 46 .,

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 48 of 60

that the United States and the State Plaintiffs shall be entitled to collectthe costs (including attorneys' fees) incurred in any action necessary to enforce this Consent Decree orto collect any portion ofthe civil penalty or any Stipulated Penalties due butnot paid by Defendant. 

### XV. NOTICES 85. Unless otherwise specified herein, whenevernotifications, submissions, or communications are required by this ConsentDecree, they shall be made in writing and addressed to the United States DepartmentofJustice, U.S. EPA Headquarters, and the U.S. EPA Region and the State Plaintiffwhere the relevantFacility is located, as follows: Notice or submission to the United States: Chief, Environmental Enforcement Section Environment and Natural Resources Division U.S. DepartmentofJustice 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 orto U.s. EPA: AirEnforcementDivision Director U.S. Environmental Protection Agency Office ofCivil Enforcement AirEnforcementDivision 1200 PennsylvaniaAve, NW 

### Mail Code: 2242A Washington, DC 20460 and Nathan Frank U.S. Environmental Protection Agency Region 5 AE·17J 77 WestJackson. Blvd. Chicago, IL 60604 including an electronic copy to: frank.nathan@epa.gov 47 

# , .',

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 49 of 60

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 ofEnvironmental 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 pursuantto this Section shall be deemed submitted upon mailing, unless otherwise provided inthis 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 OFJURISDICTION 87. The Court shall retainjurisdiction over this case until termination ofthis Consent 48

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 50 of 60

Decree, forthe purpose ofresolving disputes arising underthis Decree orentering orders modifying this Decree, pursuantto Sections XI and XVIII. oreffectuating orenforcing compliance with the tenus ofthis Decree. 

### XVIII. MODIFICATION 88. The terms ofthis ConsentDecree may be modified only by a subsequentwritten agreement signed by all ofthe Parties. Where the modification constitutes amaterial change to any term ofthis ConsentDecree, 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 inParagraph 13 (forthe O&M Plans) orupon written agreement ofthe Parties without Court approval, unless any such modification effects amaterial change to the tenns ofthis ConsentDecree ormaterially affects the Defendant's ability to meetthe requirements or objectives ofthis Decree. 

### XIX. TERMINATION 89. AfterDefendanthas maintained continuous satisfactory compliance with the requirements ofSection IV (Compliance Schedule and Requirements) and Section V (Enviromnental Mitigation Projects/Additional Injunctive Reliet) for a

### period ofone year after achieving compliance with all ofthe requirements ofthis Consent Decree, has obtained all pennits requi!ed by this ConsentDecree, and has paid the civil penalty and any accrued stipulated penalties as required by this ConsentDecree, Defendantmay serve upon the United States and the State Plaintiffarequest fortermination stating that Defendanthas satisfied those requirements, together with all necessary supporting documentation. 90. Following receipt 

### by the United States andthe State PlaintiffofDefendant's request for termination, the Parties shall conferinformally concerningthe request fortermination and
49

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 51 of 60

any disagreementthatthe Parties may have as to whetherDefendant has satisfactorily complied with 

### the requirements for termination ofthis ConsentDecree. Ifthe United States after consultation with the State Plaintiffagrees that the Decree may be terminated, the Parties shall submit, for the Court's approval, ajoint stipulationterminating the Decree. 

### 91. 

### Ifthe United States after consultation with the State Plaintiffdoes not agree that the 

# , Decree may be terminated, Defendant may move the Courtfor tennination. However, Defendant shall not file such amotion until 90 Days after service ofits 

### request for termination. On any such motion, Defendant shall bearthe burden ofproving that the conditions necessary for termination ofthe Consent Decree have been satisfied. 

### XX. PUBLIC PARTICIPATION 92. This 

### Consent Decree shall be lodged with the Courtfor aperiod ofno less than 

### 30 Days for public notice and commentin accordance with 28 C.F,R, § 50.7. Final approval bythe State Plaintiffis subjectto the requirements ofLa. R.S. 30:2050.7, which provides for public notice ofthis Consent Decree in newspapers ofgeneral circulation andthe officialjournals of parish in which the Uncle SamFacility is located, an opportunity forpublic comment, consideration ofany comments, and concurrence by the State Attorney General. The United States and the State Plaintiffeach reserves the right to withdraw or withhold its consent ifthe comments regarding the Consent Decree disclose facts orconsiderations indicating that the ConsentDecree is inappropriate, improper, orinadequate. Defendant consents to entry ofthis Consent Decree without further notice and agrees not to withdraw from or oppose entry ofthis ConsentDecree bythe Court orto challenge any provision ofthe ConsentDecree unless the United States has notified Mosaic in 

### writing thatitno longer supports entry ofthe Consent Decree.

50

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 52 of 60

XXI. SIGNATORIES/SERVICE 93, Each undersigned representative ofDefendant and the State 

### Plaintiff, and the 

### Assistant Attorney General for the Environment and Natural Resources Division oftbe DepartmentofJustice (orhis orher 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 orrelating to this ConsentDecree 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 Courtincluding, 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 settlementembodied in the Decree and supersedes all prior agreements and understandings. whether oral or written, concerning the settlementembodied herein. No other docwnent, exceptfor any plans or other deliverables that
are submittedand approved pursuantto this Decree, nor any representation, inducement. agreement, understanding, orpromise, constitutes any part ofthis Decree orthe settlement it represents, and no such extrinsic docwnent or statementofany kind shall be used in construing the tenns ofthis Decree. 

### XXIII. FINALJUDGMENT 97. Upon approval and entry ofthis Consent Decree by the Court, this ConsentDecree
51

### Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 53 of 60

shall constitute a finaljudgment ofthe Court in this action as to the United States, the State Plaintiff, and Defendant. The Court finds that there is nojustreason for delay and therefore enters thisjudgment as a finaljudgmentunderFed. R. Civ. P. 54 and 58.



### Dated and entered this

## ~ay of

## _~'-'~,,",C"---__

## ~, 20

## ~.~

TATES DISTRICTJUDGE



### 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 ConsentDecree

### inthe matterofUnited 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 AssistantAttorney General nvironmentand Natural Resources Division United States Department.of

### Justice

DAVID ROSSKAM 

### SeniorCounsel Environmental Enforcement Section Environment andNatural Resources Division United States DepartmentofJustice P.O. Box 761 I Washington, D.C. 20044-7611 (202) 514-3974

flMLETTEN 

### United StatesAttorney 

### forthe 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

ConsentDecree Signature Page: United States and State ofLouisianav. Mosaic Fertilizer. LLC (E,n. La.)



### GILES dministrator nforcement and Compliance Assurance

# P~~S~ Acting lrector Air 

### EnforcementDivision

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.)



### A

WRENCE 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 ConsentDecree in United States and State of 

### Louisiana v. Mosaic Fertilizer. LLC (B.D. La.), 

### a civil action, subjectto the public notice and conunent requirements.

PRELIMINARY APPROVAL BY PLAINTIFF, THE STATE OF LOUISIANA, DEPARTMENT OF ENVIRONMENTAL QUALITY:

. HATCH 

### Ass Secretary 

### Office ofEnvironmental Compliance LouisianaDeparunent ofEnvironmental Quality 

# /{o'i-lln**~~** 

# . "K""'ath"'""y""'M,l;-I;.

# ~804) ChristopherA. 

### Ratcliff, Attorney Supervisor 

### LA BarRoll #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 ofLouisiana, 

### UnitedStates of America and State o[Louisiana v. ,Mosaic Fertilizer, 

### LLe, Docket No. 09-6662, 

### a 

### civil action, subject to the public notice and commentrequirements.
FINALAPPROVALBY PlAINTIFF, THE STATE OFLOUISIANA, THROUGH THE DEPARTMENT OF ENVIRONMENTAL QUAIlTY:



### CH As ecretary Office ofEnvironmental Compliance Louisiana DepartmentofEnvironmental Quality i ,

Kathy M. W gilt ar Roll # 30804) 

### Attorney III ChristopherA. Ratcliff, (LA Bar Roll #18675) 

### Attorney Supervisor Office ofthe Secretary Legal Affairs Division Louisiana DepartmentofEnvironmental 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 ConsentDecree has been reviewed, and is 

### concurred 

### in, by the Attorney General of the State ofLouisiana, 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 OfJUSTICE 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. Box4302 Baton Rouge, LA 70821-4302
Re: AG Review of Federal Consent Decree, United States of America andState 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 SignaturePage: United States and State ofLouisianav. MosaicFertilizer,'LLC (E,D, La.)



### FORDEFENDANTMOSAIC FERTILIZER, LLC:

Richard L.Mack
. ExecutiveVicePresident, General Counsel and Corporale**~_** . :rheMosaic Company



### . . The**f~llowing** is thename andaddress'ofSettlingDefendant'sagentforservice (ifdifferent from above).

### and the name and address ofSettlingDefendant'scounsel. . Agentfor Service

. DianaJagiella

TheMosaic Company SeniorEnvironmental and COlJlOrale Counsel 

### 3033 Campus Drive, Suite E<\90 Plymouth, MN 55441
.

58 Counsel
DianaJagiella TheMosaic Company SeniorEnVironmental and ColJlOrale Counsel ' 3033 Campus Drive. SuiteB490 

### Plymouth. MN 5S441 

### .'