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

IN TilE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF LOUISIANA 

UNITED STATES OF AMERICA and 

STATE OF LOUISIANA, 

Plaintiffs, 

v. 

MOSAIC FERTILIZER, LLC, 

Defendant. 

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Civil Action No. 09-6662 

Section: 1'D" 

Magistrate: (2) 

CONSENT DECREE 

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TABLE OF CONTENTS 

I. .nJRISDICTION AND VENUE ....................................................................................... 3 

II. APPLICABILITY .................................................................................. 4 

IIJ. 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 PENAL TIES ......................................................................................... 27 

X. FORCE MAJEURE ........................................................................................................ 37 

XI. DISPUTE RESOLUTION .............................................................................................. 41 

XII. INFORMATION COLLECTION AND RETENTION .............................................. 43 

XIII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS .................................. 45 

XIV. COSTS ............................................................................................................................. 46 

XV. NOTICES ......................................................................................................................... 47 

XVI. EFFECTIVE DATE ........................................................................................................ 48 

XVII. RETENTION OF JlJRISDICTION .............................................................................. 48 

XVIII. MODIFICATION ........................................................................................................... 49 

XIX. TERMINATION ............................................................................................................. 49 

XX. PUBLIC PARTICIPATION .......................................................................................... 50 

XXI. SIGNATORIES/SERVICE .......................................................................................... 51 

XXII. INTEGRATION .............................................................................................................. 51 

XXIII. FINAL JlJDGMENT ...................................................................................................... 51 
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WHEREAS, Plaintiff United States of America, on behalf of the United States 

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

of Louisiana 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 Ill 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 permits, installing required control teclmology, meeting emission limits, and complying 

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

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

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

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

("BACT''), as defined at 40 C.P.R. § 52.2l(b)(l2); 

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 of the 

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

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

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

Consent Decree, permanently terminate operation of the Mu1berry Sulfuric Acid Plant; 

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

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

least 7,612 tons ofS02 and 4.5 tons of sulfuric acid mist annually; 

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

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

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

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

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

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

or dispute resolution proceeding to enforce the terms of this Consent Decree; 

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

Plaintiff to structure a comprehensive program that will result in significant reductions ofS02 

emissions annually from its operation in Louisiana; and 

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

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

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

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

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

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

I. JURISDICTION AND VENUE 

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

U.S.C. §§ 1331, 1345, and 1355, and Section 113(b) of the Act, 42 U.S.C. § 7413(b), and over 

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

7413(b), and 28 U.S. C.§§ 139l(b) and (c) and 1395(a), because some of the violations alleged 

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

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

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

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

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

other than the Plaintiffs and Defendant. 

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

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

§§ 7411,7475 and/or pursuant to state law. 

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

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

II. APPLICABILITY 

4. The o.bligations of this Consent Decree apply to and are binding upon the United 

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

persons otherwise bound by law. 

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

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

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

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

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

in this Paragraph may be shortened by agreement of the Parties. Any transfer of ownership or 

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

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

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

Defendant of its obligations under this Consent Decree, unless: 

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

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

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

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

information sufficient to demonstrate that the transferee has the technica1 and financial means to 

comply with the applicable obligations of this Consent Decree; and 

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

Defendant with respect to such obligations. 

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

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

necessary to comply with the provisions of this Consent Decree. 

lll. DEFINITIONS 

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

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

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

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

a. "100% Sulfuric Acid Produced" sha11 mean the stoichiometric quantity of 

sulfuric acid that would be produced at a Sulfuric Acid Plant if all sulfur trioxide (S03) exiting 

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

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

Produced". 

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

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

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

Method 8 of 40 C.F.R. Part 60 Appendix A consistent with 40 C.F.R. § 60.8J(b). 

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

pollution control technology that utilizes a regenerative aqueous amine solution to absorb 802 

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

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

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

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

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

record of emissions or process parameters. 

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

that are attached in Appendices B and C, respectively. 

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

Plaintiff in this action. 

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

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

Decree and any appendix, the text of this Consent Decree shall control. 

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

designated by LDEQ !.D. Number EQT 74. 

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

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

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

designated by LDEQ J.D. Number EQT 76. 

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

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

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

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

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

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

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

Malfunction. 

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

infrequent, and not reasonably preventable failure of air pollution control equipment, process 

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

are caused in part by poor maintenance or careless operation. 

q. "Mass Cap" shall mean the maximum amount of 802 emissions for each 

Sulfuric Acid Plant expressed in tons of 802 emitted during each 12-month period consisting of 

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

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

D Train, all 802 emissions from a Sulfuric Acid Plant, including Startup, Shutdown and 

Malfunction shall be counted. 

r. "Month" shall mean calendar month. 

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

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

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Operating Permit as Emission Unit 054. 

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

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

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

U.S.C. §§ 7501-7515; ''minor NSR" 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 of air pollution. 

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

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

Subpart A. NSPS requirements specifically for Sulfuric Acid Plants are codified at 40 C.P.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 of Shutdown. 

x. "Paragraph" shall mean a portion of this Consent Decree identified by an 

Arabic numeral. 

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

of significant deterioration) within the meaning of Part C of Subchapter I of the Act, 42 U.S.C. 

§§ 7470-7492. 

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

Mosaic or any one of them. 

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

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

case roman numeral. 

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

expressed as pounds of S02 emitted per ton of 100% Sulfuric Acid Produced. Compliance with 

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

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

Startup, Shutdo-wn, or Malfunction. 

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

any reason. Shutdown begins at the time the feed of elemental sulfur to the furnace ceases and 

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

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

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

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

more than 4 hours. 

gg. "State Plaintiff' or "State" shall mean the State of Louisiana. 

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

identified by a lower case Roman letter. 

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

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

Facility. 

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

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

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

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

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

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

U.S. EPA. 

nn. "U.S. EPA" shall mean the United States Envirorunental Protection Agency 

and any of its 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-Term Limit of 1.0 lb/ton. The A Train shall comply with 

the followings~ emission limits and schedules: 

a. No later than Jtme 1, 2011, the A Train shall meet an 802 Short-Tenn Limit 

of 1.5 lb/ton. 

b. No later than June 1, 2011, during any Startup, the A Train shall meet an S02 

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

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

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

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

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

in the CEMS Plan for the A Train. 

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

than January 31, 2013 tmder 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 information regarding the status of the demonstration period in its semi-annual 

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reports submitted pursuant to Subparagraph 25.b. 

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

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

f. No later than May I, 2013, the A Train shall be subject to a Mass Cap of 402 

tons of 802 except as otherwise specified in Subparagraph 8.g. Defendant shall demonstrate 

compliance with this Mass Cap on April30, 2014 (for the 12-month period of May 1, 2013 

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

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

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

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

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

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

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

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

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

than March 31 , 20 13; otherwise, Subparagraphs 8.e and 8.f will remain in full force and effect. 

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

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

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

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

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

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

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

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

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

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

greater than 1.0 lb/ton, which equals 1.2 lb/ton, it will propose a new Mass Cap of no 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 of the 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 

1.0 lb/ton. In the technically infeasible demonstration report, Mosaic shall include: 

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

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 of the relevant events leading up to 

Mosaic's determination that a Short-Term Limit of 1.0 lb/ton is technically infeasible and that 

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

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

supporting documentation; 

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

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

D) a description of all potential remedies considered by Mosaic 

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

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

E) all CEMS data from the demonstration period; and 

F) justifications for the proposed alternative limit, including why 

it is the most stringent technically feasible limit. 

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

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

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

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

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

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

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

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

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

disapprove the proposed Short~ Term Limit and corresponding Mass Cap in writing. 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, but in no event will U.S. EPA require a Short-Tenn Limit 

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

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

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

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

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

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

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specified in Mosaic•s proposal under Subparagraph S.g.i. consistent with production levels 

allowable under this Consent Decree. 

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

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

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

v. Within thirty (30) days of receipt of the written notice specified under 

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

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

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

period as agreed upon by the Parties. 

9. D Train: Beginning no later than October 1, 2011, the D Train Sulfuric Acid Plant 

shall meet the following S{}z emission limits, as follows: 

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

emissions from D Train as of October I, 20 II, in accordance with the CEMS Plan for the D 

Train, but shall have until October I, 2012, to demonstrate compliance with this Long-Term 

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

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

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

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

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

c. a Short-Term Limit of3.51b/ton. 

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

to comply with the NSPS, Subpart H sulfuric acid mist emission limitation of 0.15 lb/ton of 

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

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

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

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

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

to be considered an affected facility for purposes of the 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 C.P.R. Part 60, Subparts A and H, or with the 

requirements of this Consent Decree (if more stringent). Satisfactory compliance with notice and 

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

all applicable initial notification and compliance demonstration requirements ofNSPS Subparts 

A and H. 

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

periods of Startup, Shutdown, and Malfunction, Defendant shall to the extent practicable 

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

equipment, in a manner consistent with good air poll uti on control practices for minimizing 

emissions, consistent with 40 C.F.R. § 60.11(d). 

13. 0 & M Plans: Mosaic shall implement the O&M Plan for A Train no later than June 

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

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

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

to the extent practicable, maintain and operate each of its Sulfuric Acid Plants, including 

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

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

as of the Effective Date of this Consent Decree at all times, including during periods of Start-up, 

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

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

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

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

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

14. Emissions Monitoring: 

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

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

i. A Train: June I, 2011 

u. D Train: October 1, 2011 

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

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

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

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

and 9 of this 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 of this Consent 

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

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

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

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

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

§ 60.13(i). 

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

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

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

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

15. Performance Testing: 

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

15 by no later than the following dates: 

i. A Train: June I, 20 II 

u. D Train: September 30, 2011 

iii. ETrain: December31,2010andDecember31,2012 

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

rate of acid mist in accordance with the applicable requirements of 40 C.F .R. 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.P.R.§ 60.8. 

Mosaic shall _take all steps necessary to assure accurate measurements of I 00% Sulfuric Acid 

Produced during each test run. 

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

emission rate of SOz in accordance with the applicable requirements of 40 C.F .R. Part 60, 

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

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

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

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

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

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

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

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

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

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

Produced. If U.S. EPA or LDEQ requires any adjustment of the testing protocol or operating 

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

with U.S. EPA's and/or LDEQ's requirements. 

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

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

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

report documenting the results of the performance tests. 

16.. Cessation of Operation: 

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

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

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

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

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

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

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

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

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

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

and civil penalty, if not previously paid, that may be due pursuant to Sections VIII or IX with 

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

V. ENVIRONMENTAL MITIGATION 

PROJECTS/ADDITIONAL INJUNCTIVE RELIEF 

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

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

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

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

any obligations that it may have under other applicable requirements of law. 

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

reductions in emissions at theE Train. 

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

promoted catalyst in the fourth bed of theE Train converter. Mosaic shall select catalyst trade 

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

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

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

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

reduce emissions, improve conversion, or otherwise improve performance of theE Train to 

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

limited to, replacing heat exchangers and/or catalyst. 

iii. By no later than July 1, 2012, theE Train shall be subject to a Mass 

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

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

thereafter as of the first of each month for the immediately preceding consecutive 12-month 

period. 

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

in the manner specified in Paragraph 15 of this Consent Decree. 

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

within six (6) months of the Effective Date of this Consent Decree, permanently terminate the 

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

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

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

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

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

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

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

purposes ofNSR or PSD permitting. 

VI. PERMITS 

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

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

permits for construction of pollution control technology and the installation of equipment. 

Defendant may seek relief under the provisions of Section X (Force Majeure) of this Consent 

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

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

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

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

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

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

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

administratively complete application to the LDEQ permitting authority to incorporate the 

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

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

a. All Short-Term Limits, Long-Term Limits and Mass Caps for 802 emissions 

established in Paragraphs 8 and 9 of this Consent Decree; 

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

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

this Consent Decree; 

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

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

all requirements therein. 

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

Defendant shail cooperate with the LDEQ and auy applicable locai agency. Defendant shall file 

any applications necessary to incorporate the requirements of those 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 of the Consent Decree, the 

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

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

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

established in Paragraphs 8 and 9 of this Consent Decree; 

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

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

this Consent Decree; 

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

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

all requirements therein. 

21. Mechanism for Title V Incorporation: The incorporation of the requirements of this 

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

applicable administrative amendment provisions of such rules. 

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

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

permit sha11 not be enforceable under this Consent Decree, although any term or limit established 

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

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

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

enforcement ?f the underlying permit or terms of the underlying permit included in the Title V 

permit. 

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

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

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

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

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

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

the Effective Date, Defendant shall submit copies· of such permits to U.S. EPA using the 

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

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

Effective Date. 

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

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

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

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

is intended to prohibit Defendant from: 

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

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

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

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

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

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

by this Conse_nt Decree, to the extent that the proposed netting reductions or emission offset 

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

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

permitting process; 

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

subject to an emission limitation under this Consent Decree; 

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

than 802 or sulfuric acid mist. 

VII, REPORTING REQUIREMENTS 

25. Defendant shall submit the following reports: 

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

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

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

8 and 9 for compliance with the applicable S02 emissions limit. 

b. After the Effective Date and before the tennination of this Consent Decree, 

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

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

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

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

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

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

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

monitoring and testing data collected pursuant to this Consent Decree including the mass of S02 

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

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

the quantity ofSOz 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 

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nature of the system repairs or adjustments; (7) status of permit applications and a summary of 

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

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

to the O&M Plans specified in Paragraph 13. 

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

requirement of this Consent Decree or of any applicable permit, Defendant shall notify the 

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

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

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

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

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

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

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

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

Paragraph or the following Paragraph relieves Defendant of its obligation to provide the notice 

required by Section X (Force Majeure). 

d. Whenever any violation of thjs Consent Decree or of any applicable penn it or 

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

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

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

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

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

set forth in the preceding reporting provisions. 

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

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

XV (Notices). 

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

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

corporate official responsible for plant management of the Defendant, and sha1l include the 

following certification: 

I certify under penalty of law that I have examined and am familiar with the 

information submitted in this document and all attachments and that this 

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

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

knowledgeable personnel properly gather and present the information 

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

my inquiry of those individuals immediately responsible for obtaining the 

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

that there are significant penalties for submitting false information, including 

the possibility of fines and imprisorunent for knowingly and willfully 

submitting a materially false statement. 

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

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

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

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

this Consent Decree. 

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

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

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

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

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

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

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

VIII. CIVIL PENALTY 

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

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

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

("EFT") to the U.S. Department of Justice ("DOJ") in accordance with instructions to be 

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

Unit of the United States Attorney's Office for the Eastern District of Louisiana. At the time of 

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

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

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

with Section XV of this Decree (Notices); and 

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

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

4303, Baton Rouge, Louisiana 70821-4303. 

31. If any portion of the civil penalty due to the United States or the State Plaintiff is not 

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

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

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

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

IX. STIPULATED PENAL TIES 

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

Plaintiff for violations of this Consent Decree as specified below, unless excused m1der Section 

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

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

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

payment of stipulated penalties and shaH include the same identifying information required by 

Paragraph 30 (Civil Penalty) above. 

33. Failure to Pay Civil Penalty: If Defendant fails to pay any portion of the civil penalty 

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

penalty of$1,000 per day for each day that the payment is late. Late payment of the civil penalty 

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

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

payment of the full civil penalty due. 

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

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

Percentage Over the Limit 

1-50% 

51-100% 

Over 100% 

Penalty per Violation 

$250 

$500 

$750 

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

C.F.R. Part 60. 

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

corresponding Mass Cap) for A Train following the demonstration period under Paragraph 8.g, 

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

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

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

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

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

.l 

' 

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

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

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

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

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

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

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

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

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

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

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

Subparagraph 34.a., provided that Mosaic complies with its proposed Short-Term Limit of 1.2 

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

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

limit) is $250/violation. Should the Court eventually resolve the dispute in U.S. EPA's favor, 

stipulated penalties for the period of time 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 of the dispute. If the dispute is not resolved until at least six months 

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

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

month following submission of the dispute to the Court; if it is not resolved until after twelve 

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

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

accrue at $25 per violation (25% x $1 00) beginning with the thirteenth month following 

submission of the dispute to the Court. 

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

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

Percentage Over the Limit Penalty per Violation 

I- 50% $250 

51 - 100% $500 

Over 100% $750 

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

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

Period of Noncompliance 

1st- 14th day 

15th - 30th day 

31st day and each day thereafter 

penalty per Violation 

$1000 

$1500 

$2000 

e.g., a violation of the 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 I 0)). No separate stipulated 

penalty will apply with respect to the limit on S02 emissions under 40 C.F.R. Part 60. 

37. Mass Cap. 

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

penalty of $15,000 per ton or fractiOn of a ton ofS02 emitted in excess of the 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 any one 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

31 

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

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

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

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

483 tons during the pendency of the dispute. If the dispute is not resolved until at least six 

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

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

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

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

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

following submission of the dispute to the Court. 

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

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

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

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

Period of Noncompliance 

(Total days in violation in any 

calendar year) 

lst-14thday 

15th - 30th day 

31st day and each day thereafter 

Penalty Per Day 

$1500 

$2000 

$2500 

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

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

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

X JQ)). 

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

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

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

testing: 

Period of Noncompliance 

1st- 14th day 

15th - 30th day 

31st day and beyond 

Penalty Per Violation Per Day 

$1000 

$1500 

$2000 

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

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

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

$2000 per day. 

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

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

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

Period of Noncompliance Penalty Per Violation Per Day 

1st- 14th day 

15th- 30th day 

. 31st day and beyond 

$1000 

$1500 

$2000 

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

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

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

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

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

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

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

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

Period ofNoncompliance 

1st- 14th day 

15th- lOth day 

ll st day and beyond 

Penalty Per Violation Per Day 

$1000 

$1500 

$2000 

43. Reporting Requirements. The fo1lowing stipulated penalties shall accrue for: failure 

to submit design specifications within the period specified in Paragraph 2S.a of this Consent 

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

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

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

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

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

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

Period of Noncompliance 

1st- 14th day 

15th- lOth day 

ll st day and beyond 

Penalty Per Violation Per Day 

$150 

$250 

$500 

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

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

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

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

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Period of Noncompliance 

1st -14th day 

15th -30th day 

31st day and beyond 

Penalty Per Violation Per Day 

$150 

$250 

$500 

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

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

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

penalties shall accrue simultaneously for separate violations of this Consent Decree. Defendant 

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

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

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

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

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

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

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

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

46. The United States and the State Plaintiff may each, in the unreviewable exercise of its 

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

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

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

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

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

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

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a. If the dispute is resolved by agreement or by a decision of the United States or 

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

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

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

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

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

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

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

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

below. 

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

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

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

dispute becomes final and not subject to any further appeal. 

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

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

Department of Justice," referencing DOJ No. 9Q-5-2-1-08957 and United States Attorney's 

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

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

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

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

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

its federal or state tax obligations. 

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

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

as of the date payment became due. 

51. Subject to the provisions of Section XIII (Effect of Settlement/Reservation of Rights), 

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

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

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

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

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

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

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

paid, against any statutory penalties imposed for such violation. 

X. FORCE MAJEURE 

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

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

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

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

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

delay to the greatest extent possible. 

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

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

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

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

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

of time under this Section X. However, the failure of a pennitting authority to issue a necessary 

construction or operating permit in a timely fashion is an event of force majeure where the 

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

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

in complying with any provision of this 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 of the event or should have known of 

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

Defendant first knew of the event or should have known of the event by the exercise of due 

diligence. In this notice, Defendant shaH specifically reference this Paragraph 54 of this 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 (if Defendant 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 of the same by overnight mail or by certified mail, return receipt 

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

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

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

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

allow U.S. EPA and the State Plaintiff to verify the cause and nature of the event in question; 

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

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

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

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

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

impediment to performance within forty-five (45) days of receipt of the written Force M&jeure 

notice provided under Paragraph 54. 

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

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

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

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

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

Decree pursuant to the procedures of Section XVIII (Modification). Defendant shall not be 

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

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

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

(Stipulated Penalties). No later than forty-five (45) days after receipt of the notice provided 

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

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

determination with the Court. If the CoW1 determines that the delay or impediment to 

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

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

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

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

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a Force Majeure Event. 

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

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

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

subsequent compliance date or dates. 

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

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

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

claim of force majeure. 

61. In appropriate circumstances, as part of the resolution of any 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 of the schedule for completion of work under the Consent 

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

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

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

accordance with the extended or modified schedule. 

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

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

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

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

of God, such as a hurricane; acts of war or terrorism; an order by a government official, 

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

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

40 

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

Force Majeure Event (as defined in this Section) in light of the 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 of this Section shall be the exclusive mechanism to resolve disputes arising 

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

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

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

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

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

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

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

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

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

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

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

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

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

days from the receipt of such notice. 

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

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

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

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

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

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

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

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

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

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

of the dispute and Defendant's position on the dispute. Counsel filing a petition invoking formal 

dispute resolution shall, at the time of filing, notice it for hearing iri accordance with the Eastern 

District of Louisiana local ru1es. Such petition shall be filed no later than fifty-five (55) Days 

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

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

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

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

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

modification, or by agreement of the Parties to the dispute. 

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

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

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

pleadings expressing its position as allowed by the Court. 

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

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

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

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

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

71. The Parties do not intend that the invocation of this Section XI by a Party cause the 

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

invocation of this Section. 

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

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

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

Decree to account for the delay in the work that occurred as a result of dispute resolution. 

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

accordance with the extended or modified schedule. Invocation of dispute resolution with 

respect to any of Defendant's obligations under this Consent Decree shall not, of itself, excuse or 

extend the time for performance of any other obligation of Defendant under this Consent Decree. 

XII. INFORMATION COLLECTION AND RETENTION 

73. The United States, the State Plaintiff, and their representatives, including attorneys, 

inspectors, contractors, and consultants, shall have the right of entry into any of the Facilities 

covered by tl}is Consent Decree, at all reasonable times, upon presentation of credentials, to: 

monitor the progress of activities required under tJ:Us Consent Decree; verify any data or 

information submitted to the United States or a State Plaintiff in accordance with the terms of 

this Consent Decree; obtain samples and, upon request, splits of any samples taken by Defendant 

or its representatives, contractors, or consultants; obtain documentary evidence, including 

photographs and similar data; and assess Defendant's compliance with this Consent Decree. 

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74. Until at least three years after the termination of this Consent Decree, Defendant shall 

retain, and shall instruct its contractors and agents to preserve, all non~ identical copies of all 

documents, records, or other information (including documents, records, or other information in 

electronic form) in its or its contractors' or agents' possession or control, or that come into its or 

its contractors' or agents' possession or control, and that relate in any manner to Defendant's 

performance of its obligations under this Consent Decree. This information retention 

requirement shall apply regardless of any contrary corporate or institutional policies or 

procedures. At any time during this information~retention period, the United States or a State 

Plaintiff may request copies of any documents, records, or other information required to be 

maintained under this Paragraph. 

75. If Defendant desires to revert to its ordinary document retention policy in regards to 

documents it is otherwise required to retain, at least 90 Days prior to the expiration of the 

document retention period, Defendant shall notify the United States and the State of its intention 

to revert back to its ordinary document retention policy. Should the United States request copies, 

Defendant may assert that certain documents, records, or other information are privileged under 

the attomey~client privilege or any other privilege recognized by federal law. If Defendant 

asserts such a privilege, it shall provide the following: (1) the title of the document, record, or 

information; (2) the date of the document, record, or information; (3) the name and title of each 

author of the document, record, or information; ( 4) the name and title of each addressee and 

recipient; (5) a description of the subject of the document, record, or information; and (6) the 

privilege asserted by Defendant. However, no documents, records, data, or other information 

created or generated pursuant to the requirements of this Consent Decree shall be withheld on 

groWlds of privilege. 

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76. Defendant may also assert that information required to be provided under this Section 

is protected as CBI under 40 C.P.R. Part 2. As to any information that Defendant seeks to 

protect as CBI, Defendant shall follow the procedures set forth in 40 C.F.R. Part 2. 

77. The information retention requirements of Paragraphs 74 and 75 shall survive 

termination of this Consent Decree and shall be enforceable by this Court even after such 

tennination. Ibis Consent Decree in no way limits or affects any right of entry and inspection, 

or any right to obtain information, held by the United States or the State pursuant to applicable 

federal or state laws, regulations, or permits, nor does it limit or affect any duty or obligation of 

Defendant to maintain documents, records, or other information imposed by applicable federal or 

state laws, regulations, or permits. 

XIII. EFFECT OF SETTLEMENT/RESERVATION OF 

RIGHTS 

78. This Consent Decree resolves the civil liability of Defendant to the United States and 

the State of Louisiana for the violations alleged in the Complaint filed in this action from the 

date those claims accrued through the date of lodging of this Consent Decree. 

79. The United States and the State Plaintiff reserve all legal and equitable remedies 

available to enforce the provisions of this Consent Decree, except as expressly stated in 

Paragraph 78. This Consent Decree shall not be construed to limit the rights of the United States 

or the State Plaintiff to obtain penalties or injunctive relief under the Act or implementing 

regulations, or under other federal or state laws, regulations, or permit conditions, except as 

expressly specified in Paragraph 78. The United States and the State Plaintiff further 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 envirorunent arising at, or posed 

by, Defendant's facilities, whether related to the violations addressed in this Consent Decree or 

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otherwise. 

80. This Consent Decree is not a permit, or a modification of any permit, under any 

federal, state, or local laws or regulations. Defendant is respor.tsible for achieving and 

maintaining compliance with all applicable federal, state, and local laws, regulations, and 

permits; and Defendant's compliance with this Consent Decree shall be no defense to any action 

commenced pursuant to any such laws, regulations, or permits, except as otherwise expressly 

provided herein. The United States and the State Plaintiff do not, by their consent to the entry of 

this Consent Decree, warrant or aver in any manner that Defendant's compliance with any aspect 

of this Consent Decree will result in compliance with provisions of the Act, or with any other 

provisions of federal, state, or local laws, regulations, or permits, 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 of this Consent Decree provided that Mosaic complies with all 

applicable legal requirements, including as applicable PSD permitting. 

82. This Consent Decree does not limit or affect the rights of Defendant or of the United 

States or the State Plaintiff against or in respect of any third parties, not party to this Consent 

Decree, nor does it limit or affect the rights of third parties, not party to this Consent Decree, 

against Defendant, except as otherwise provided by law. 

83. This Consent Decree shall not be construed to create rights in, or grant any cause of 

action to, any thirdwparty that is not a Party to this Consent Decree. 

XIV. COSTS 

84. The Parties shall bear their own costs of this action, including attorneys' fees, except 

46 

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that the United States and the State Plaintiffs shall be entitled to collect the costs {including 

attorneys' fees) incurred in any action necessary to enforce this Consent Decree or to collect any 

portion of the civil penalty or any Stipulated Penalties due but not paid by Defendant. 

XV. NOTICES 

85. Unless otherwise specified herein, whenever notifications, submissions, or 

communications are required by this Consent Decree, they shall be made in writing and 

addressed to the United States Department of Justice, U.S. EPA Headquarters, and the U.S. EPA 

Region and the State Plaintiff where the relevant Facility is located, as follows: 

Notice or submission to the United States: 

Chief, Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of Justice 

Box 7611 Ben Franklin Station 

Washington, D.C. 20044-7611 

Re: DOJ No. 90-5-2-1-08957 

Notice or submission to the United States or to U.S. EPA: 

Air Enforcement Division Director 

U.S. Environmental Protection Agency 

Office of Civil Enforcement 

Air Enforcement Division 

1200 Pennsylvania Ave, NW 

Mail Code: 2242A 

Washington, DC 20460 

and 

Nathan Frank 

U.S. Environmental Protection Agency 

Region 5 

AE-17J 

77 West Jackson. Blvd. 

Chicago, IL 60604 

including an electronic copy to: 

frank.nathan@epa.gov 

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Notice or submission to the United States or to U.S. EPA that concerns the Uncle Sam Facility: 

Jan Gerro and 

U.S. Environmental Protection Agency 

Region6 

1445 Ross Avenue 

Suite 1200 

Mail Code: 6RC-EA 

Dallas, TX 75202 

Notice or submission to the State Plaintiff: 

Lourdes lturralde 

Administrator, Enforcement Division 

Office of Environmental Compliance 

Louisiana Department of Environmental Quality 

P, 0. 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 A venue 

Suite 1200 

Mail Code: 6EN-AA 

Dallas, 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 address(es) provided above. Notices submitted pursuant to this Section shall be deemed 

submitted upon mailing, unless otherwise provided in this Consent Decree or by mutual 

agreement of the Parties in writing. 

XVI. EFFECTIVE DATE 

86. The Effective Date of this Consent Decree shall be the date upon which this Consent 

Decree is entered by the Court. 

XVII. RETENTION OF JURISDICTION 

87. The Court shall retain jurisdiction over this case until termination of this Consent 

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Decree, for the purpose of resolving disputes arising under this Decree or entering orders 

modifying this Decree, pursuant to Sections XI and XVIII, or effectuating or enforcing 

compliance with the tenns of this Decree. 

XVIII. MODIFICATION 

88. The terms of this Consent Decree may be modified only by a subsequent written 

agreement signed by all of the Parties. Where the modification constitutes a material change to 

any term of this Consent Decree, it shall be effective only upon approval by the Court. The 

O&M Plans required by Paragraph 13 and the CEMS Plans required by Paragraph 14 may be 

modified as provided in Paragraph 13 (for the O&M Plans) or upon written agreement of the 

Parties without Court approval, unless any such modification effects a material change to the 

terms of this Consent Decree or materially affects the Defendant's ability to meet the 

requirements or objectives of this Decree. 

XIX. TERMINATION 

89. After Defendant has maintained continuous satisfactory compliance with the 

requirements of Section IV (Compliance Schedule and Requirements) and Section V 

(Envirorunental Mitigation Projects/Additional Injunctive Relief) for a period of one year after 

achieving compliance with all of the requirements of this Consent Decree, has obtained all 

permits requi!ed by this Consent Decree, and has paid the civil penalty and any accrued 

stipulated penalties as required by this Consent Decree, Defendant may serve upon the United 

States and the State Plaintiff a request for termination stating that Defendant has satisfied those 

requirements, together with all necessary supporting documentation. 

90. Following receipt by the United States and the State Plaintiff of Defendant's request 

for termination, the Parties shall confer informally concerning the request for termination and 

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any disagreement that the Parties may have as to whether Defendant has satisfactorily complied 

with the requirements for termination of this Consent Decree. If the United States after 

consultation with the State Plaintiff agrees that the Decree may be terminated, the Parties shall 

submit, for the Court's approval, a joint stipulation terminating the Decree. 

91. If the United States after consultation with the State Plaintiff does not agree that the ' 

Decree may be terminated, Defendant may move the Court for termination. However, Defendant 

shall not file such a motion until 90 Days after service of its request for termination. On any 

such motion, Defendant shall bear the burden of proving that the conditions necessary for 

.;( 

termination of the Consent Decree have been satisfied. 

XX. PUBLIC PARTICIPATION 

92. This Consent Decree shall be lodged with the Court for a period of no less than 30 

Days for public notice and comment in accordance with 28 C.P.R. § 50.7. Final approval by the 

State Plaintiff is subject to the requirements of La. R.S. 30:2050.7, which provides for public 

notice of this Consent Decree in newspapers of general circulation and the official journals of 

parish in which the Uncle Sam Facility is located, an opportunity for public comment, 

consideration of any comments, and concurrence by the State Attorney General. The United 

States and the State Plaintiff each reserves the right to withdraw or withhold its consent if the 

comments regarding the Consent Decree disclose facts or considerations indicating that the 

Consent Decree is inappropriate, improper, or inadequate. Defendant consents to entry of this 

Consent Decree without further notice and agrees not to withdraw from or oppose entry of this 

Consent Decree by the Court or to challenge any provision of the Consent Decree unless the 

United States has notified Mosaic in writing that it no longer supports entry of the Consent 

Decree. 

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XXI. SIGNATORIES/SERVICE 

93, Each undersigned representative of Defendant and the State Plaintiff, and the 

Assistant Attorney General for the Environment and Natural Resources Division of the 

Department of Justice (or his or her designee) certifies that he or she is fully authorized to enter 

into the tenns and conditions of this Consent Decree and to execute and legally bind the Party he 

or she represents to this document. 

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 of process by mail with respect to all matters 

arising under or relating to this Consent Decree and to waive the formal service requirements set 

forth in Rules 4 and 5 of the Federal Rules of Civil Procedure and any applicable Local Rules of 

this Court including, bUt not limited to, service of a summons. 

XXII. INTEGRATION 

96. This Consent Decree constitutes the final, complete, and exclusive agreement and 

understanding among the Parties with respect to the settlement embodied in the Decree and 

supersedes all prior agreements and understandings, whether oral or written, concerning the 

settlement embodied herein. No other docwnent, except for any plans or other deliverables that 

are submitted and approved pursuant to this Decree, nor any representation, inducement, 

agreement, understanding, or promise, constitutes any part of this Decree or the settlement it 

represents, and no such extrinsic docwnent or statement of any kind shall be used in construing 

the tenns of this Decree. 

XXIII. FINAL JUDGMENT 

97. Upon approval and entry of this Consent Decree by the Court, this Consent Decree 

51 
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 53 of 60

shall constitute a final judgment of the Court in this action as to the United States, the State 

Plaintiff, and Defendant. The Court finds that there is no just reason for delay and therefore 

enters this judgment as a final judgment under Fed. R. Civ. P. 54 and 58. 

Dated and entered this ~ay of_--1~fL~I"C"-----~· 20 _Q_.~ 

TATES DISTRICT JUDGE 

52 
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 54 of 60

THE UNDERSIGNED PARTII~~S enter.into this Consent Decree in the matter of United States 

and State of Louisiana v. Mosaic Fertilizer. LLC (E.D. La.), relating to alleged violations of the 

Clean Air Act: 

FOR PLAINTIFF UNITED STATES OF 

AMERICA: 

ting Assistant Attorney General 

nvironment and Natural Resources Division 

United States Department _of Justice 

DAVID ROSSKAM 

Senior Counsel 

Environmental Enforcement Section 

Environment and Natural Resources Division 

United States Department of Justice 

P.O. Box 7611 

Washington, D.C. 20044-7611 

(202) 514-3974 

JIMLETTEN 

United States 'Attorney for the Eastern District of 

Louisiana 

SHARON D. SMITH 

Assistant United States Attorney 

500 Poydras Street 

RoomB210 

New Orleans, LA 70130 

(504) 680-3004 

53 
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 55 of 60

Consent Decree Signature Page: 

United States and State of Louisiana v. Mosaic Fertilizer. LLC (E.D. La.) 

nforcement and Compliance Assurance 

PAME ~~· . ~S -f.«. 

Acting 1rector 

Air Enforcement Division 

54 
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 56 of 60

Consent Decree Signature Page: 

United States and State of Louisiana v. Mosaic Fertilizer. LLC (E.D. La.) 

A WRENCE E. STARFIELD 

Acting Regional Administrator 

U.S. 'Environmental Protection Agency 

Region 6 

55 

~~ 
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 57 of 60

WE HEREBY CONSENT to the entry of the Consent Decree in United States and State of 

Louisiana v. Mosaic Fertilizer. LLC (E.D. La.), a civil action, subject to the public nOtice and 

conunent requirements. 

PRELIMINARY APPROVAL BY PLAINTIFF, THE STATE OF LOUISIANA, 

DEPARTMENT OF ENVIRONMENTAL QUALITY: 

Office of Environmental Compliance 

Louisiana Deparbnent of Environmental Quality 

Kathy M. Wrigh A Bar o I# 30804) 

Christopher A. Ratcliff, Attorney Supervisor 

LA Bar Roll #18675) 

Office of the Secretary 

Legal Affairs Division 

Louisiana Department of Environmental Quality 

Post Office Box 4302 

Baton Rouge, Louisiana 70821-4302 

Telephone No. (225) 219-3985 

Fax. No. (225) 219-4068 

56 

j, .. 
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 58 of 60

In the United States District Court for the Eastern District of Louisiana, United States of 

America and State of Louisiana v .. Mosaic Fertilizer, LLC, Docket No. 09-6662, a civil 

action, subject to the public notice and comment requirements. 

FINAL APPROVAL BY PlAINTIFF, THE STATE OF LOUISIANA, THROUGH THE 

DEPARTMENT OF ENVIRONMENTAL QUAllTY: 

·~~>Secretary 

Office of Environmental Compliance 

Louisiana Department of Environmental Quality 

Kathy M. W ghtf,~~ioii"#!i0sii4) Attorney III 

Christopher A. Ratcliff, (LA Bar Roll #18675) 

Attorney Supervisor 

Office of the Secretary 

Legal Affairs Division 

Louisiana Department of Environmental Quality 

Post Office Box 4302 

Baton Rouge, Louisiana 70821-4302 

Telephone No. (225) 219-3985 

Fax. No. (225) 219-4068 

Dated: !-2./.:tt/oj 

This Consent Decree has been reviewed, and is concurred in, by the Attorney General of 

the State of Louisiana, pursuant to the provisions of La. R.S. 30:2050.7. 

JAMES D. "BUDDY" CALDWELL 

(see .att&ched letter) 

ATTORNEY GENERAL 

DATED:. ____________ _ 

i 

' 
Case 2:09-cv-06662-AJM-JCW Document 5 Filed 12/23/2009 Page 59 of 60

]AMES Q. ~6UODYH CALDWELL 

AnO~N<V GENERAl 

~tat• nf ')11mi5iamt 

DEPARTMENT Of JUSTICE 

P.O. BOX 94005 

BATON ROUGf 

70804-9005 

December 16, 2009 

Mr. Herman Robinson, Executive Counsel 

La. Department of Environmental Quality Legal Affairs Division 

P.O. Box 4302 

Baton Rouge. LA 70821-4302 

Re: AG Review of Federal Consent Decree, 

United States of America and State of Louisiana v. Mosaic 

Fertilizer, Inc., U.S. D.C., Eastern District of Louisiana, Civil Action No. 2:09-cv-06662 

Dear Mr. Robinson: 

Pursuant to the authority granted to me by R.S. 30:2050.7, I approve the above referenced consent decree. 

JDC/MKT/tp 

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

Consent Decree Signature Page: 

United States and State of Louisiana v. Mosaic Fertilizer.· LLC (E. D. La.) 

FOR DEFENDANT MOSAIC FERTILIZER, LLC: 

Richard L. Mack . 

Executive Vice President, General Counsel and 

Corporale~- . 

:rhe Mosaic Company 

. . The f~llowing is the name and address·of Settling Defendant's agent for service (if different 

from above). and the name and address of Settling Defendant's counsel. . 

Agent for Service 

· Diana Jagiella 

The Mosaic Company 

Senior Environmental and 

Colj>Orate Counsel 

3033 Campus Drive, Suite E<\90 

Plymouth, MN 55441 · 

58 

Counsel 

Diana Ja8iella 

The Mosaic Company 

Senior EnViromnental and 

Colj>Orate Counsel ' 

3033 Campus Drive, Suite B490 

Plymouth, MN 55441 

' ' '