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United States v. CEMEX California Cement

January 20, 2009

UNITED STATES OF AMERICA, PLAINTIFF
v.
CEMEX CALIFORNIA CEMENT, LLC, DEFENDANT.



CONSENT DECREE

WHEREAS, Plaintiff, the United States of America (the "United States"), on behalf of the United States Environmental Protection Agency ("EPA"), filed a Complaint against the Defendant CEMEX California Cement, LLC ("CEMEX"), for civil penalties and injunctive relief for violations of the Prevention of Significant Deterioration) ("PSD") provisions of the Clean Air Act (the "Act"), 42 U.S.C. §§ 7470-7492, and failure to comply the requirements with Title V of the Act, 42 U.S.C. §§ 7661-7661f, at its portland cement manufacturing plant located in and near Victorville, San Bernardino County, California (the "Facility");

WHEREAS, on July 10, 2007, the Court denied CEMEX's Motion to Dismiss or Strike the First and Second Claims to the Extent Civil Penalties are Sought, but granted CEMEX's Motion to Dismiss the Third Claim in its Entirety;

WHEREAS, the United States provided notice of the commencement of this action to the appropriate State air pollution control agency, in accordance with Section 113(b) of the Act, 42 U.S.C. § 7413(b);

WHEREAS, on August 10, 2007, CEMEX filed an answer denying any liability for the violations alleged in the First and Second Claims in the Complaint;

WHEREAS, the United States and CEMEX have agreed that settlement of this action is in the best interest of the parties and in the public interest, have agreed on the appropriateness of various measures intended to resolve the alleged violations and have further agreed that entry of this Consent Decree without further litigation is the most appropriate means of resolving this matter; and

WHEREAS, the Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation between the Parties and that this Consent Decree is fair, reasonable, and in the public interest.

NOW, THEREFORE, before trial and without the final adjudication, or admission, of any issue of fact or law except as provided in Section I (Jurisdiction and Venue), below, and with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows:

I. JURISDICTION AND VENUE

1. This Court has jurisdiction of the subject matter herein and over the parties consenting hereto pursuant to 28 U.S.C. §§ 1331, 1345, and 1355 and pursuant to Sections 113 and 167 of the Act, 42 U.S.C. §§ 7413 and 7477; and over the parties to this action. Venue is proper under Section 113(b) of the Act, 42 U.S.C. § 7413(b), and under 28 U.S.C. § 1391(b) and (c) because the violations alleged in the Complaint are alleged to have occurred in, and Defendant conducts business in, this judicial district.

2. For purposes of this Consent Decree, CEMEX agrees that the First and Second Claims in the Complaint state claims upon which relief may be granted pursuant to the Act, and CEMEX waives all objections and defenses that it may have to the jurisdiction of the Court or to venue.

II. APPLICABILITY

3. The obligations of this Consent Decree apply to and are binding upon the United States and upon CEMEX and any successor, assign, or other entity or person otherwise bound by law.

4. No transfer of ownership or operation of the Facility, whether in compliance with the procedures of this Paragraph or otherwise, shall relieve CEMEX of its obligation to ensure that the terms of the Decree are implemented. At least 30 days prior to such transfer, CEMEX shall provide a copy of this Consent Decree to the proposed transferee and shall simultaneously provide written notice of the prospective transfer, together with a copy of the proposed written agreement, to the United States, in accordance with Section XV (Notices) of this Consent Decree. Any attempt to transfer ownership or operation of the Facility, or any portion thereof, without complying with this Paragraph constitutes a violation of this Decree.

5. CEMEX shall provide a copy of this Consent Decree to all officers, employees, and agents whose duties might reasonably include compliance with any provision of this Consent Decree, as well as to any contractor retained to perform work required under this Consent Decree. CEMEX shall condition any such contract upon performance of the work in conformity with the terms of this Consent Decree.

6. In any action to enforce this Consent Decree, CEMEX shall not raise as a defense the failure by any of its officers, directors, employees, agents, or contractors to take any action necessary to comply with the provisions of this Consent Decree.

III. DEFINITIONS

7. Terms used in this Consent Decree that are defined in the Act or in regulations promulgated pursuant to the Act shall have the meanings assigned to them in the Act or such regulations, unless otherwise provided in this Decree. Whenever the terms set forth below are used in this Consent Decree, the following definitions shall apply:

a. "30-Day Rolling Average Emission Limit" shall mean, for each Kiln, the maximum allowable rate of emission of a specified air pollutant from such Kiln and shall be expressed as pounds of such air pollutant emitted per ton of clinker produced (lbs/ton). Compliance with the 30-Day Rolling Average Emission Limit shall be determined for each Kiln in accordance with the following procedure: first, sum the total pounds of the air pollutant in question emitted from the Kiln during an Operating Day and the previous twenty-nine (29) Operating Days; second, sum the total tons of clinker produced by the Kiln during the same Operating Day and previous 29 Operating Days; and third, divide the total number of pounds of the air pollutant emitted from the Kiln during the thirty (30) Operating Days by the total tons of clinker produced by such Kiln during the same 30 Operating Days to arrive at the Kiln's lbs/ton average emissions over the rolling 30-day period. A new compliance determination of the 30-Day Rolling Average Emission Limit shall be calculated for each Kiln on each new Operating Day in accordance with the provisions of this Consent Decree. In calculating each compliance determination of the 30-Day Rolling Average Emission Limit, for a specified air pollutant at each Kiln, the total pounds of such air pollutant emitted from the Kiln during the 30-day rolling period shall include all emissions of that pollutant, including emissions during each Startup, Shutdown, or Malfunction that occurs during the period, except to the extent a Malfunction qualifies as a Force Majeure event under Section X (Force Majeure) and CEMEX has complied with the requirements of that section.

b. "CEMEX" shall mean CEMEX California Cement, LLC.

c. "CEMS" shall mean a continuous emission monitoring system, i.e., equipment that continuously measures and records the concentration or emission rate of a pollutant, in the units specified by the emission limit concerned.

d. "CO" shall mean carbon monoxide, measured in accordance with the provisions of this Consent Decree.

e. "Complaint" shall mean the complaint filed by the United States in this action.

f. "Consent Decree" or "Decree" shall mean this Decree.

g. "Continuously Operate" or "Continuous Operation" shall mean that when a monitoring or control technology is used at a Kiln, except during a Malfunction, it shall be operated at all times of Kiln Operation, consistent with the technological limitations, manufacturers' specifications, and good engineering and maintenance practices for such control technology and the Kiln.

h. "Date of Lodging" shall mean the date the Consent Decree is lodged with the Clerk of the Court for the United States District Court for the Central District of California.

i. "Day" shall mean a calendar day unless expressly stated to be a working day. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next working day.

j. "District" shall mean the Mojave Desert Air Quality Management District.

k. "Effective Date" shall have the meaning given in Paragraph 70.

l. "EPA" shall mean the United States Environmental Protection Agency and any successor department or agency.

m. "Facility" shall mean CEMEX's portland cement manufacturing plant in and near Victorville, California, including the Black Mountain Quarry Plant located near Apple Valley, California, and the River Plant located in Victorville, California.

n. "Kiln" as used in this Consent Decree shall have the same meaning as defined at 40 C.F.R. § 63.1341.

o. "Kiln Q2" shall mean the Kiln located at the Black Mountain Quarry Plant identified in District permits as B001083.

p. "Kiln Q3" shall mean the Kiln located at the Black Mountain Quarry Plant identified in District permits as B005362.

q. "Kiln Operation" shall mean, with respect to each Kiln, any period when any raw materials are fed into the Kiln or any period when any combustion is occurring or any fuel is being fired in the Kiln.

r. "Malfunction" as used in this Consent Decree shall have the same meaning as defined at 40 C.F.R. § 60.2.

s. "NNSR" shall mean the Nonattainment New Source Review program within the meaning of Part D of Subchapter I of the Act, 42 U.S.C. §§ 7501-7515 and 40 C.F.R. Part 51.

t. "NOx" shall mean oxides of nitrogen, measured in accordance with the provisions of this Consent Decree.

u. "NOx Control Technology" shall mean the control technology or emission control strategy to be installed or utilized at Kiln Q2 and Kiln Q3 to meet the NOx emission limits set forth in Paragraph 11 and 14 below.

v. "Operating Day" shall mean any Day of Kiln Operation.

w. "Paragraph" shall mean a portion of this Decree identified by an arabic numeral.

x. "Parties" shall mean the United States and CEMEX.

y. "PSD" shall mean the Prevention of Significant Deterioration program within the meaning of Part C of Subchapter I of the Act, 42 U.S.C. §§ 7470-7472 and 40 C.F.R. Part 52.

z. "Section" shall mean a portion of this Decree identified by a roman numeral. aa. "SIP" shall mean the District portion of the California State Implementation Plan as submitted to and approved by EPA pursuant to Section 110 of the Act, 42 U.S.C. § 7410. bb. "Shut Down" shall mean to cease Kiln Operation. cc. "Startup" shall mean the commencement of Kiln Operation. dd. "SO2" shall mean sulfur dioxide, measured in accordance with the provisions of this Consent Decree. ee. "Title V permit" shall mean a permit required by or issued pursuant to the requirements of 42 U.S.C. §§ 7661 - 7661f.

ff. "Ton" or "tons" shall mean short ton or short tons. gg. "United States" shall mean the United States of America, acting on behalf of EPA.

a. IV. CIVIL PENALTIES

8. CEMEX shall pay to the United States as civil penalties pursuant to Section 113 of the Act, 42 U.S.C. § 7413, the sum of $2,000,000.00, as follows:

(i) Within thirty (30) Days after the Effective Date of this Consent Decree, CEMEX shall pay $1,000,000.00, together with interest accrued on the sum of $2,000,000.00 from the Date of Lodging through the Effective Date at the rate specified in 28 U.S.C. § 1961 as of the Date of Lodging; and (ii) within 90 Days of the Effective Date of this Consent Decree, CEMEX shall pay the balance of the civil penalties due together with interest on the balance at the rate specified above accruing from the 31st Day following the Effective Date through the date of payment.

9. CEMEX shall pay the civil penalties due by FedWire Electronic Funds Transfer ("EFT") to the U.S. Department of Justice in accordance with written instructions to be provided to CEMEX, following lodging of the Consent Decree, by the Financial Litigation Unit of the U.S. Attorney's Office for the Central District of California, 1200 U.S. Courthouse, 312 North Spring Street, Los Angeles, California, 90012, phone: (213)894-2434. At the time of payment, CEMEX shall send a copy of the EFT authorization form and the EFT transaction record, together with a transmittal letter, which shall state that the payment is for the civil penalties owed pursuant to the Consent Decree in United States v. CEMEX California Cement, LLC, and shall reference the civil action number and DOJ case number 90-5-2-1-08691, to the United States in accordance with Section XIV (Notices) of this Decree; by email to acctsreceivable.CINWD@epa.gov; and to: U.S. Environmental Protection Agency Fines and Penalties Cincinnati Finance Center P.O. Box 979077 St. Louis, MO 63197-9000

10. CEMEX shall not deduct the civil penalties paid under this Section in calculating its federal income tax.

V. COMPLIANCE REQUIREMENTS

A. Pollutant Emission Limits and Notification of NOx Control Technology

11. CEMEX shall achieve the following emission limits for the following pollutants on the schedule ...


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