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COLORADO DEPARTMENT OF PUBLIC HEALTH AND
ENVIRONMENT
AIR POLLUTION CONTROL DIVISION
STATIONARY SOURCES PROGRAM
COMPLIANCE ORDER ON CONSENT 2002-124
In the Matter of Cemex, Inc.
The Colorado Department of Public Health and Environment (“CDPHE”), through the Air Pollution Control Division (“Division”), issues this Compliance Order on Consent (“Consent Order”), pursuant to the Division’s authority under § 25-7-115(3)(b), C.R.S. of the Colorado Air Pollution and Prevention and Control Act (“the Act”) §§ 25-7-101 to -1309, C.R.S., and its implementing regulations, 5 CCR 1001,with the express consent of Cemex, Inc. (“Cemex”). The Division and Cemex may be referred to collectively as “the Parties.”
I. STATEMENT OF PURPOSE
The mutual objectives of the Parties in entering into this Consent Order are:
1. To establish compliance requirements and criteria for the continued operation of Cemex’ Lyons Cement Plant (“the Plant”) located at 5134 Ute Highway, in Lyons, Boulder County, Colorado; and
2. To resolve the violations of the Act and regulations identified herein and as determined by the Division and described below.
II. DIVISION’S FINDINGS OF FACT AND DETERMINATION OF VIOLATIONS
Based upon the Division’s investigation into and review of the compliance issues identified herein, and in accordance with § 25-7-115(2), C.R.S., the Division has made the following determinations regarding violations of regulatory, statutory and/or permit requirements associated with the Plant.
3. At
all times relevant to the violations cited herein, Cemex was a Louisiana
Corporation in good standing and registered to conduct business in the State of
Colorado.
4. The Plant, which includes activity at the Dowe Flats Quarry (“the Quarry”), is subject to the following:
a. Title V Operating Permit No. 95OPBO082 (“Permit No. 95OPBO082”), issued by
the Division to Cemex on February 1, 2000 (revised October 8, 2002), and the
applicable requirements of several underlying Construction Permits, including Permit No.’s 93BO1414F, 94BO593, 98BO0259, 98BO0292 and 98BO0315;
b. Colorado Air Quality Control Commission (“AQCC”) Regulation No. 6, Part A,
which incorporates by reference 40 C.F.R. Part 60, Subpart F, Standards of Performance for Portland Cement Plants (“Subpart F”); and
c. AQCC Regulation No. 8, Part E, Section III.DD, which incorporates by reference 40 C.F.R. Part 63, Subpart LLL, National Emission Standards for Hazardous Air Pollutants From the Portland Cement Manufacturing Industry (“Subpart LLL”).
5. Ms. Gabi Hoefler and Ms. Pam Milmoe, of the Boulder County Health Department (“BCHD”), and duly delegated representatives of the Division (hereinafter referred to as “the inspectors”), conducted a series of inspections and surveillances of the Plant in September and November 2002. Based upon a review of the inspectors’ observations and other records, the Division has made the following compliance determinations.
6. Cemex is required to operate the Plant’s Outdoor Clinker Storage area so that “the drop of clinker to the outside chute shall be managed with a seal between the hopper and material during operation to allow effective operation of the dust collector such that emissions are minimized.” On September 30, 2002, the inspectors observed excessive emissions from the clinker pit/clinker load-out area, and noted that, due to the frequency at which the clinker stockpile was being emptied, the hopper’s chute-to-stockpile drop distance increased so as to cause the loss of the system’s seal and the resultant excess emissions, in violation of Permit No. 95OPBO082, Section II, condition 11.6.8.
7. Cemex is required to ensure that the roads and edges of clinker piles are watered as necessary to abate fugitive particulate emissions. On September 30 and November 19, 2002, the inspectors noted that the haul road south of and behind the Sheltered Clinker Storage Stockpile (the “A-Frame”) was dry, and they observed excessive fugitive dust emissions coming from the area, in violation of Permit No. 95OPBO082, Section II, condition 11.6.1.
8. Cemex is required to (1) water, clean on a regular basis, and otherwise manage spills and accumulations of particulate matter on roadways to ensure that such spills and accumulations do not contribute to fugitive emissions during operation; and (2) to suspend or reroute vehicle traffic as necessary to minimize the fugitive emissions from areas with such spills and accumulations. On November 19, 2002, the inspectors noted the paved entrance into the Plant was very dusty and that cement trucks and other vehicles traveling through the area contributed to excessive fugitive dust emissions, in violation of Permit No. 95OPBO082, Section II, condition 11.6.6.
9. On March 26, 2003, Mr. Paul Carr, of the Division, conducted a full compliance inspection of the Plant. Follow-up inspections of the Plant were conducted on May 2 and May 13, 2003 (these March and May 2003 inspections are hereinafter referred to collectively as “the inspections”). Mr. Steve Mossberg, of Cemex, accompanied Mr. Carr during these inspections. Based upon a review of the inspections and other records, the Division has made the following additional compliance determinations.
10. Cemex is required to use permit-specific emission factors in calculating the estimated emissions from sources and activities at the Plant for Air Pollutant Emissions Notice (“APEN”) reporting and fee purposes, and to maintain and make available for inspection records of the calculations upon request. The records maintained by Cemex used incorrect emission factors to calculate the Plant’s emissions of particulate matter (“PM” and/or “PM10”) from the screening and crushing activities, raw material storage silos, Raw Mill Grinding activities, and Homogenizing and Blending activities, in violation of Permit No. 95OPBO082, Section II, conditions 6.2, 7.2, 8.2, 9.2, respectively. Additionally, the records maintained by Cemex used the incorrect emission factor to calculate the emissions of hydrochloric acid (“HCl”) from the Plant’s Clinker Cooler, in violation of Permit No. 95OPBO082, Section II, condition 10.10. Cemex has corrected the APEN submittals, and properly paid the emission fees.
11. Permit No. 95OPBO082, Section II, condition 10.4 establishes PM emissions limits for the Plant’s Kiln and Clinker Cooler. The permit requires Cemex to monitor PM and PM10 emissions and to keep production records. Cemex kept production records, but did not calculate PM emissions based on such production records. Additionally, Cemex should be required to maintain records estimating PM and PM10 emissions, on a monthly basis, and should be required to maintain such records at the Plant. Such emissions estimates should be calculated in the manner prescribed in Subpart F, section 60.64(b)(1-3). Cemex has agreed to perform such calculations and maintain such records.
12. Permit No. 95OPBO082, Section II, condition 10.4.4 requires Cemex to operate the Kiln and Clinker Cooler continuous opacity monitors (“COMs”) in accordance with Subpart A, section 60.13. Cemex reported opacity exceedance times to the Division, but the exceedance times were not calculated in the manner specified by Subpart A, section 60.13(h). Cemex has since changed its practice to calculate opacity exceedance times as specified in Subpart A, section 60.13. As a mitigating factor, Cemex asserts that it over reported opacity violations.
13. Cemex is required to ensure that the paved travel areas used by the front-end loaders and paved areas of particulate emission producing sources are (1) swept regularly with a high efficiency vacuum sweeper to minimize material buildups, (2) watered as necessary, and (3) vehicle traffic suspended or rerouted if fugitive emissions become a concern. Mr. Carr observed significant material buildup and fugitive emissions from the paved areas near the Plant’s Outdoor Clinker Storage area, the result of spillage from the front loader during transference of material from the clinker drop area to the stockpile areas. Water trucks and the vacuum sweeper vehicle were observed on several occasions during the inspections; however, based upon observations made on March 26, May 2 and May 13, 2003, the frequency of material deposited on the paved areas from the handling of clinker in the Outdoor Clinker Storage area exceeds Cemex’ ability to minimize fugitive emissions, in violation of Permit No. 95OPBO082, Section II, conditions 3.5.6 and 11.6.6.
14. During the inspections, Mr. Carr observed excessive emissions from the Plant’s Outdoor Clinker Storage area, noting that, as during the 2002 inspection discussed in paragraph 6 above, such emissions were the result of Cemex’ failure to maintain a seal between the hopper and material during loading operations.
15. Cemex is required to ensure that the haul roads in the area of the Plant’s handling/processing of cement kiln and raw material waste dust are adequately watered to achieve a minimum control efficiency of 80%. During the inspections, no indication of watering of the haul road into the Quarry’s cement kiln dust ("CKD") disposal pit was observed, in violation of Permit No. 95OPBO082, Section II, condition 13.5.3.
16. Permit No. 95OPBO082, Section II, condition 13.5.4 requires Cemex to ensure that material at the Quarry’s CKD disposal pit be compacted and stabilized to minimize emissions. During the inspections, no evidence of compacting or stabilization of cement kiln and other waste dust was observed at the disposal pit beyond the leveling of pit’s brim.
17. Cemex is required to ensure that a sprinkler system is operated as necessary to effectively control emissions at the Quarry’s disposal area. During the March 26, 2003 inspection, the sprinkler system was not in operation although the disposal pit contained very dry and non-compacted material. During the May 2 and May 13, 2003 inspections, the sprinkler system failed to apply water to the center of the Quarry’s disposal pit, where cement kiln dust (“CKD”) was deposited. Thus, Cemex failed to operate the sprinkler system as necessary to effectively control emissions in violation of Permit No. 95OPBO082, Section II, condition 13.5.6.
18. Permit No. 95OPBO082, Section II, condition 16 requires Cemex to conduct a daily walkthrough to look for visible emissions at the Plant (except at the Kiln and Clinker Cooler). Cemex is required to document the observations and to ensure that the provisions of the fugitive dust control plan, and any additional action, if necessary, are implemented when excessive emissions are observed from the Plant’s fugitive sources. Cemex recorded daily walkthroughs, but failed to document and implement corrective action for the recurring excessive emissions from the Plant’s Outdoor Clinker Storage area noted by the inspectors. Cemex has agreed that, beginning immediately, it shall document and record complaints and violations observed by inspectors, contractors, citizens and employees, and shall implement and document appropriate corrective actions.
19. Cemex is required to report any deviation from permit requirements, including those attributable to upset conditions. Records indicate that Cemex failed to identify an upset condition that occurred on April 1, 2002 in the August 2002 semi-annual deviation report, in violation of Permit No. 95OPBO082, Section IV, conditions 21 and 22(d). Since then, Cemex has filed the appropriate reports.
20. Meetings were held in December 2002, on March 11, June 18, July 22, September 9, September 25, October 22 and November 20, 2003, during which the Parties discussed the above-related issues.
21. During June and July 2003, Mr. Carr conducted additional inspections at the Plant. Based upon a review of these inspections and other records, the Division has made the following additional compliance determinations.
22. On June 30, 2003, Mr. Carr documented the following six-minute average opacity readings from the identified emissions sources at the Plant[1]:
a. 28.3% from the A-Frame; and
b. 26.9% from the transfer point at the top of the A-Frame.
On July 2, 2003, Mr. Carr
documented the following six-minute average
opacity readings from the identified emissions sources at the Plant:
c. 35.2% from Outdoor Clinker Storage Pit;
d. 24.8% from the A-Frame; and
e. 22.1% from Finish Mill’s Auxiliary Dust Collector.
Cemex operated the emissions sources identified in a-d above in violation of Permit No. 95OPBO082, Section II, condition 24.10.4; Subpart LLL, section 63.1348; and AQCC Regulation No. 1, Part II.A.1. Cemex operated the emissions source identified in e above in violation of Permit No. 95OPBO082, Section II, condition 24.10.3; Subpart LLL, section 63.1347; and AQCC Regulation No. 1, Part II.A.1. Cemex shutdown the A-Frame, effective July 2, 2003.
23. Cemex, in accordance with Section 2.2 of its Operation and Maintenance Plan (“O&M Plan”)[2] for the Plant’s emissions sources subject to Subpart LLL, is required to inspect the Plant’s affected dust collectors “for leaks in ducts, housings and hoppers, check timers, check exhaust for dust, check differential pressure and pulse mechanisms” on a weekly basis. This requirement under Subpart LLL became effective on June 14, 2002. On July 2, 2002 EPA partially withdrew Section 63.1350(a)(4)(v) through (vii). On December 6, 2002 EPA promulgated a final rule for Subpart LLL, including Section 63.1350(a)(4)(vi) and (vii). Cemex Permit No. 95OPBP082 was amended on October 8, 2002 to incorporate the Subpart LLL requirements, including the O&M Plan. Records indicate that Cemex failed to inspect this equipment from June 13, 2002 through July 1, 2003, in violation of Permit No. 95OPBO082, Section II, condition 24.4.2 and Subpart LLL, sections 63.1350(a) and 63.1350(b). The O&M Plan will be revised during the Title V renewal.
24. Monthly visible emissions tests performed on the A-Frame from June 14, 2002 through July 1, 2003, did not include each side and vent of the building as required by Subpart LLL, section 63.1350(a)(4)(vii). Furthermore, Cemex failed to conduct 6-minute tests of opacity in accordance with Subpart LLL, section 63.1350(a)(4)(iv) within one hour of visible emissions observed during Method 22 tests conducted on June 20, September 27, and October 22, 2002.
25. Construction Permit No. 98BO0259, condition 10, which is incorporated into Operating Permit No. 95OPO082, requires emissions from the Plant's A-Frame to be exhausted through a baghouse. From April 2001 through August 2003, Cemex operated the Plant's A-Frame without the required baghouse in violation of Permit Nos. 98BO0259 and 95OPO082.
26. On or about June 20, 2003, Cemex filed an Air Pollution Emission Notice ("APEN") that estimated controlled emissions of 0.82 tons/year of PM and 0.41 tons/year of PM10. The APEN identified a baghouse with an overall collection efficiency of 99% as the pollution control equipment on the A-Frame transfer point. At the time the APEN was filed, there was no baghouse on the A-Frame transfer point, and had not been such a baghouse for at least two years. Actual emissions from the point were higher than the emissions rate reported in the APEN.
27. Cemex was required to submit to the Division a revised APEN for and prior to operating the A-Frame without the baghouse. This APEN was to reflect the changes in the operation and the corresponding changes in PM/PM10 emissions and permit limitations. Cemex failed to submit a revised APEN for these changes with the Plant’s A-Frame, in violation of AQCC Regulation No. 3, Part A, Section II.C.1 (a, c and d).
28. In 2001, 2002, and 2003, emissions of PM and PM10 from the Plant’s A-Frame exceeded permitted emissions limits in violation of Permit No. 95OPBO082, Section II, condition 11.3. PM emissions may not to exceed 0.82 tpy. PM10 emissions may not exceed 0.41 tpy, 0.05 tons per month, or 7.5 pounds per day.
29. Cemex failed to pay annual fees for the excess PM and PM10 emissions from the Plant’s A-Frame from April 2001 through August 2003, in violation of Permit No. 95OPBO082, Section IV, condition 8(a) and § 25-7-114.7(2)(a)(I), C.R.S.
30. Cemex failed to operate the Plant’s A-Frame from April 2001 through August 2003 in a manner consistent with good air pollution control practices for minimizing emissions, in violation of Permit No. 95OPBO082, Section II, condition 19, and 40 C.F.R. Part 60, Subpart A, section 60.11(d).
31. The Division, based on available information, and after making reasonable inquiries, has determined that the dust control equipment required for the control of PM and PM10 emissions from the A-Frame has been inoperative since at least April 2001 through August 2003. Cemex therefore failed to operate the Plant’s A-Frame in continuous compliance with the permit conditions and limits during this time. However, Cemex reported in its 2001 and 2002 Annual Compliance Certifications submitted to the Division that the A-Frame was operated at all times in compliance with the permit requirements, in violation of Permit No. 95OPBO082, Section IV, condition 2(a) and AQCC Regulation No. 3, Part C, Section III.B.9.
32. As discussed above, Cemex stopped operating the A-Frame on July 2, 2003. The problems with the A-Frame require Cemex to stop using the A-Frame until the problems can be remedied, as set out below. In the meantime, the only way for Cemex to continue operations is to store clinker at the outdoor clinker storage area, which is identified in the operating permit as P010A. Permit No. 95OPBO082, section II, condition 11 limits material handling at the outdoor clinker storage area to 180,000 tons of clinker per year. Cemex has already reached, or is close to reaching that limit.
33. Cemex has performed additional internal due diligence and voluntarily disclosed that there are several permit hygiene issues that need to be rectified during the Title V permit renewal process. Cemex Title V renewal application is due in February 2004. Specifically there are two dust collectors for CKD storage that are not permitted. These are identified as plant equipment #525-28 (dust collector for silo A5) and #825-7 (CKD Loadout spout dust collector). This process was relocated from the waste dust silo and dust collector in 1996. The underlying construction permit (Permit No. 98BO0315) does not list this equipment relocation. Instead, it improperly shows the existing dust collectors for silo A5 and A2 (#825-3) and cement loading spout (#825-4) controlling this process. That construction permit design was changed after the initial approval permit was issued, and a final permit was never obtained. The error was not corrected in the Title V permitting process.
34. The Division and Cemex entered into settlement discussions for the violations as determined by the Division. The Parties reached a settlement agreement that is detailed in this Consent Order.
III. ORDER and AGREEMENT
Based on the foregoing factual and legal determinations, pursuant to its authority under § 25-7-115, C.R.S., and in satisfaction of the violations identified herein, the Division orders, and Cemex agrees to the following:
35. Cemex agrees to the terms and conditions of this Consent Order. Cemex agrees that this Consent Order constitutes an order issued pursuant to § 25-7-115, C.R.S., and is an enforceable requirement of Part 7 of the Act. Cemex also agrees not to challenge:
a. The issuance of this Consent Order;
b. The factual and legal determinations made by the Division herein; and
c. The Division’s authority to bring, or the court’s jurisdiction to hear, any action to
enforce the terms of this Consent Order under the Act.
36. Notwithstanding the above, Cemex does not admit to any of the factual or legal determinations made by the Division herein, and any action undertaken by Cemex pursuant to this Consent Order shall not constitute an admission of liability by Cemex with respect to the conditions of the Facility. Specifically Cemex asserts that there has been no off-site transport of fugitive dust during any of the above inspections, and no harm to human health or the environment.
Compliance
Requirements
37. Effective immediately, Cemex shall:
a. Use the emissions factors specified in the applicable permit conditions for all records, calculations and reports. This provision shall not be construed to prevent Cemex from amending its permit to revise such emission factors where appropriate; and
b. Calculate PM emissions from the Plant’s Kiln and Clinker Cooler in the manner prescribed in 40 CFR, Subpart F, section 60.64 for all records, calculations and reports.
38. Regarding activities at the Quarry, Cemex has voluntarily agreed to implement additional forecast and control measures to minimize the risk of fugitive emissions during blasting activities.
a. Cemex will monitor and record local weather forecast information for the current day prior to loading explosives in any drill hole. The forecasts at a minimum shall include anticipated wind speed and direction. Records of the forecasts shall be kept on file at the plant and made available upon request for no less than 2 years.
b. Cemex will postpone the loading of explosives if the wind speed is forecasted to be greater than 20 miles per hour at the time of the planned blast.
c. Cemex will record the actual blast with a video camera, which is to be positioned on the large overburden hill at the south end of the quarry. Each recorded blast shall capture the detonation and the tracking of the ensuing dust plume until the plume's opacity dissipates to less than 5% opacity. The video record will be kept on site and made available upon request for no less than two years.
39. Regarding activities in and around the Plant’s Outdoor Clinker Storage pit, effective immediately, Cemex shall, at a minimum, implement the following systematic program to minimize fugitive emissions:
a. During the day shift, Cemex will operate the powered sweeper on a full time basis, 12
hours per day, 7 days a week. Operation of the sweeper will be the sole assignment of the individual assigned such sweeping duty. During the day shift, the Outdoor Clinker Discharge area will be swept at least every 2 hours while diverting clinker to the pit.
b. During the night shift, the Outdoor Clinker Discharge area shall be swept or watered
at least every two hours while diverting clinker to the pit.
c. Sweeping and watering will occur according to this schedule except under the
following circumstances: Wet pavement, snow/ice covered pavement, or during a shutdown of the crushing/drying and kiln system for greater than 24 hours.
40. Cemex shall install two capture hoods: one over the outside clinker drop, and one over the #6 outside clinker reclaim hopper. Cemex shall amend its permit to require such hoods. Each hood shall be approximately 20 feet wide, 10 feet deep, and 20 feet higher, but such hood design and dimensions may be varied through the permitting process as appropriate to maximize air pollution control. The hood shall vent to a supplementary dust collector with a rated capacity sufficient to comply with the relevant opacity standards. Cemex shall submit a complete application, as defined in Regulation No. 3, for a permit amendment for such hoods within 30 days of the effective date of this order. Construction of such hoods shall be completed as soon as practicable after Division approval of such permit amendment. Cemex shall not operate the #6 outside clinker reclaim hopper until the hood and supplementary dust collector for such hopper are completed.
41. Cemex shall use a water truck to minimize fugitive particulate emissions from roads and other traffic areas, loading areas, the edges of clinker piles, and other sources of fugitive particulate emissions. At a minimum:
a. During the day shift, Cemex will operate the plant based water truck on a full time basis, 12 hours a day, 7 days a week. Operation of the water truck will be the sole assignment of the individual assigned such duty. Watering will occur according to this schedule except under the following circumstances: Freezing conditions, snow/ice covered roads, rain, or during a shutdown of the crushing/drying system and the kiln system for greater than 24 hours. As used here, the term "freezing conditions" means weather conditions severe enough to clog the water truck due to freezing. Cemex shall take reasonable precautions, including but not limited to storing the water truck in a heated garage at night, to prevent such freezing conditions.
b. The water truck shall be operated during nights as necessary to water such areas adequately to control particulate emissions.
42. To minimize fugitive dust emissions associated with the Plant’s CKD disposal site, and effective immediately Cemex shall:
a. Operate an automated sprinkler system to water the active CKD disposal site.
i. Sprinklers will be set for 10 minutes or longer on each station. Cycle times will be set for at least once cycle every two hours, except Cemex may reduce watering if the CKD disposal area is too wet for equipment operations.
ii. The sprinklers will be positioned to cover 100% of the active CKD disposal area.
iii. The sprinkler system will be in service from mid-April through mid-October each year, except during rain, snow, or freezing condition.
b. Water trucks will be used to water the active CKD disposal area as follows:
i. The access road and will be watered at least every three hours during
the day, and as needed at night to minimize fugitive emissions. Watering may be reduced or suspended during cold weather if the road is ice covered and such ice cover is sufficient to minimize fugitive emissions.
ii. When the sprinklers are not in service, water trucks will be used to
water the active disposal area at least every 3 hours during the day, and as needed at night to minimize fugitive emissions.
iv. Water truck operation as previously described will occur except in the
following circumstances: freezing conditions, rain, or snow. As used here, the term "freezing conditions" means weather conditions severe enough to clog the water truck due to freezing. Cemex shall take reasonable precautions, including but not limited to storing the water truck in a heated garage at night, to prevent such freezing conditions.
c. Cemex agrees to limit the active disposal or working area of the CKD storage pit to 3
acres at any time.
i. Inactive or unused portions of the pit shall be covered with rock or
treated with hydroscopic materials to minimize fugitive emissions.
ii. Signage or berms should be used to delineate the 3 acre active
disposal area.
d. Cemex shall compact and stabilize the CKD disposal pit as required by 95OPB0082,
section II, condition 13.5.4.
43. Cemex shall treat haul roads with a magnesium chloride or calcium chloride solution as often as necessary to maintain a surface crust, as required by permit condition 13.5.3. Such solution shall be applied to the haul road to the CKD disposal pit at least every six months. The solution shall have a concentration of at least 32 percent magnesium chloride or calcium chloride by weight. As an alternative, Cemex may substitute another hydropscopic material, so long as such treatment is at least as effective as the solution described in this paragraph in controlling fugitive emissions.
44. Cemex shall document all reported observations or complaints from citizens, inspectors, contractors, or employees of fugitive or excess emissions. Cemex will investigate each occurrence and will document its findings and any corrective action taken or implemented.
45. Cemex shall install and begin continuous operation of dust control equipment within the A-Frame, but in no case shall Cemex install such equipment prior to Division approval of the requisite revision to the construction permit. Cemex shall submit a complete application, as defined in Regulation No. 3, to amend its permit to require such dust control equipment within 30 days of the effective date of this order. Cemex shall construct such dust control equipment as soon as practicable after approval of such permit application. Cemex shall not operate the A-Frame until such dust control equipment is permitted and operating. The application for a permit revision shall include an amendment to Attachment A to the construction permit to remove the requirement for a stacker belt conveyor with an adjustable discharge height, unless Cemex installs such control equipment in compliance with the construction permit. Cemex shall conduct a performance test of the A-Frame’s dust control equipment as soon as practicable after construction of such dust control equipment. Cemex shall provide the Division with a minimum of thirty (30) days notice of the scheduled performance test.
46. Cemex shall submit to the Division a Title V renewal application with the appropriate changes, including a request to modify Permit No. 95OPBO082 to incorporate the terms and conditions identified in paragraphs 36 (b and c) through 44 above as well as other clarifying modifications within thirty (30) calendar days of the effective date of this Consent Order.
47. Cemex shall, within sixty (60) calendar days of the effective date of this Consent Order, submit the following documentation to the Division:
a. Revised Annual Compliance Certifications for years 2000, 2001 and 2002 reflecting the actual compliance status of the Plant, including that of the A-Frame operation from February 2000 through December 2002; and
b. Revised APENs reflecting the actual (uncontrolled) PM and PM10 emissions from the A-Frame for the period from April 2001 through August 2003.
48. Based on the APENs submitted by Cemex and identified in paragraph 46(b) above, the Division shall calculate the fees for the excess emissions from the Plant’s A-Frame from April 2001 through August 2003, and Cemex shall pay these additional fees within fifteen (15) calendar days of receipt of the Division’s request for such payment.
Administrative
Penalty Requirements
49. Based upon the factors set forth in § 25-7-122, C.R.S., the Division has determined a penalty in the amount of Thirty-Seven Thousand Four Hundred and Sixty Dollars ($37,460.00) against Cemex is appropriate and consistent with the Division’s policies for violations of the Act and its implementing regulations cited in Section II of this Consent Order. Cemex agrees to pay the sum of Thirty-Seven Thousand Four Hundred and Sixty Dollars ($37,460.00) in administrative penalties. Payment is due within thirty (30) calendar days of the effective date of this Consent Order by certified or cashier's check drawn to the order of "Colorado Department of Public Health and Environment" and delivered to the attention of Legal Administrator, Air Pollution Control Division, 4300 Cherry Creek Drive South, Denver, Colorado 80246-1530.
50. The Plant is a stationary source that is subject to the noncompliance penalty provisions of the Act as set forth in § 25-7-115(5)(a)(i), C.R.S., and is required to calculate and pay any economic benefit derived from the noncompliance issues described above. The Division has approved Cemex’ calculated noncompliance and economic benefit penalty of Ninety-Four Thousand Eight Hundred and Thirty-Nine Dollars ($94,839.00) and Cemex shall pay the penalty within thirty calendar (30) days of the effective date of this Consent Order. Such payment shall be made by certified or cashier's check as described in paragraph 48.
51. For the period April 1, 2004 through December 31, 2004, Cemex shall pay stipulated penalties in the amount of $10,000 per month for each month that it exceeds the 180,000-ton per-year limit on the amount of clinker handled at the outdoor clinker storage area, P010A. The calculation of the 180,000 ton per year permit limit on the amount of clinker handled at the outdoor storage area (P010) for the purposes of 2004 shall begin on April 1, 2004 as the A frame will not be in operation until that date. Payment of such stipulated penalties shall be due 30 days after the end of the month of such violation, and shall be made by certified or cashier's check as described in paragraph 48. Cemex shall comply with the permit limit on the amount of clinker handled at the outdoor clinker storage area after December 31, 2004. This provision for stipulated penalties for such violations shall not apply after December 31, 2004. Violation of such limit after December 31, 2004 shall be subject to enforcement as a new violation of a permit term.
Supplemental Environmental Project Requirements
52. In order to settle the matters contained herein, and in addition to the penalties identified in the “Administrative Penalty Requirements” section above, Cemex agrees to perform a Supplemental Environmental Project (“SEP”), which the Parties agree is intended to secure significant environmental or public health protection and improvements. Cemex’s total expenditure for the SEP shall be not less than One Hundred Forty-Nine Thousand Eight Hundred and Forty Dollars ($149,840.00). Cemex is currently performing an engineering analysis for SEP projects and will provide the Division with a SEP proposal within 180 calendar days of the Effective date of this Consent Order. If the Division rejects this proposal, Cemex shall have 60 days after receiving notice of this rejection to submit an alternate SEP proposal for consideration by the Division.
53. The SEP proposal and the SEP shall comply with CDPHE’s SEP Policy.
54. The SEP performed by Cemex may not be any project that it is required to perform or develop by any federal, state or local law or regulation, and it may not be one that Cemex is required to perform or develop by any agreement, grant or injunctive relief in this or any other case. Cemex hereby certifies that it has not received, and is not presently negotiating to receive, credit in any other enforcement action for the SEP.
55. Unless both parties agree to another date in writing, Cemex shall submit a SEP Completion Report to the Division by December 31, 2004. Cemex agrees that failure to submit the SEP Completion Report with the required information, or any periodic report, shall be deemed a violation of this Consent Order and Cemex shall become liable for penalties as a violation of this Consent Order. The SEP Completion Report shall contain the following information:
a. A detailed description of the SEP as implemented;
b. A description of any operating problems encountered and the solutions thereto;
c. Itemized costs documented by copies of purchase orders and receipts or canceled checks;
d. Certification that the SEP has been fully implemented pursuant to the provisions of this Consent Order; and
e. A description of the environmental and public health benefits resulting from implementation of the SEP (with quantification of the benefits and pollutant reductions, if feasible).
56. Unless both parties agree to another date in writing, the SEP must be completed to the satisfaction of the Division by December 31, 2004, and must be operated for the useful life of the SEP. If Cemex fails to fully and satisfactorily implement a SEP within this time period or fails to operate the SEP for its entire useful life, the Division shall provide written notice of such failure and a demand for payment of the amount of One Hundred Forty-Nine Thousand Eight Hundred and Forty Dollars ($149,840.00). Notwithstanding the approval of any SEP expenditures previously submitted to the Division, the amount of One Hundred Forty-Nine Thousand Eight Hundred and Forty Dollars ($149,840.00) shall be paid to the Division within thirty (30) calendar days of receipt of a demand for payment by the Division.
57. Cemex shall include in any public statement, oral or written making reference to the SEP the following language: “This project was undertaken in connection with the settlement of an enforcement action taken by the Colorado Department of Public Health and Environment, Air Pollution Control Division, for violations of air quality laws and regulations.”
IV. SCOPE AND EFFECT OF CONSENT ORDER
58. The Parties agree and acknowledge that this Consent Order constitutes a full and final resolution of the matters addressed herein, and further agree not to challenge the terms and conditions of this Consent Order in any proceeding before any administrative body or any judicial forum, whether by way of direct judicial review or collateral challenge.
59. This Consent Order constitutes a final agency order upon execution by Cemex and the Division and shall be enforceable by either party in the same manner as if the Division had entered this Consent Order without agreement by Cemex. The Parties agree that any violation of the provisions of this Consent Order by Cemex concerning the Act, or its implementing regulations, shall be a violation of a final order of the Division for the purposes of §§ 25-7-115, 121, and 122, C.R.S., and may result in the assessment of civil penalties of up to Fifteen Thousand Dollars ($15,000.00) per day for each day of such violation.
60. The Parties’ obligations under this Consent Order are limited to the matters expressly stated herein or in approved submissions required hereunder. All submissions made pursuant to this Consent Order are incorporated into this Consent Order and become enforceable under the terms of this Consent Order as of the date of approval by the Division.
61. The Division’s approval of any submission, standard, or action under this Consent Order shall not constitute a defense to, or an excuse for, any prior violation of any requirement under the Act, or any implementing regulations under the Act, or any subsequent violation of any requirement of this Consent Order, the Act, or its regulations.
62. Entering into this settlement shall not constitute an admission of violation of the air quality laws by Cemex, nor shall the Division or any third party infer it to be such an admission by Cemex in any administrative or judicial proceeding. The described violation will constitute part of Cemex’ compliance history for any purpose for which such history is relevant, including considering the violation described above in assessing a penalty for any subsequent violations, in accordance with the provisions of § 25-7-122, C.R.S, against Cemex.
63. Cemex shall comply with all applicable Federal, State, and/or local laws and regulations and shall obtain all necessary approvals or permits to conduct the investigation and remedial activities required by this Consent Order and perform its obligations required hereunder. The Division makes no representation with respect to approval and permits required by Federal, State, or local laws or regulations other than those specifically referred to herein.
64. Nothing herein shall be construed as prohibiting, altering, or in any way limiting the ability of the Division to seek any other remedies or sanctions available by virtue of Cemex’ violation of this agreement or of the statutes and regulations upon which this agreement is based, or for Cemex’ violation of any applicable provision of law.
V.
LIMITATION RELEASES AND RESERVATION OF RIGHTS AND
LIABILITY
65. Upon the effective date of this Order on Consent, and during its term, this Consent Order shall stand in lieu of any other enforcement action by the Division with respect to the violations cited herein. This Consent Order does not grant any release of liability for any violations, regardless of when they occurred, that are not cited in this Consent Order. The Division reserves the right to bring any action it deems necessary to enforce this Consent Order.
66. Nothing in the preceding paragraph shall preclude the Division from imposing additional requirements necessary to protect human health or the environment pursuant to the terms of this Consent Order. Nor shall anything in this Consent Order preclude the Division from imposing additional requirements in the event that new information is discovered that indicates such requirements are necessary to protect human health or the environment.
67 Cemex reserves its rights and defenses regarding liability in any proceedings regarding the Facility other than proceedings to enforce this Consent Order.
68. Upon the effective date of this Consent Order, Cemex releases and covenants not to sue the State of Colorado as to all common law or statutory claims or counterclaims arising from, or relating to, the violations of the Act or the Regulations specifically addressed herein.
69. Cemex shall not seek to hold the Division liable for any injuries or damages to persons or property resulting from acts or omissions of Cemex, or those acting for or on behalf of Cemex, including its officers, employees, agents, successors, representatives, contractors or consultants in carrying out activities pursuant to this Consent Order. Cemex shall not hold out the Division as (a) a party to any contract entered into by Cemex in carrying out activities pursuant to this Consent Order; or (b) an owner, operator or generator of hazardous wastes at the Facility. Nothing in this Consent Order shall constitute an express or implied waiver of immunity otherwise applicable to the Division, its employees, agents or representatives.
70. The Division reserves the right to bring any action or to seek civil or administrative penalties for any past, present, or future violations of the Act and its implementing regulations, not specifically addressed herein. Further, the Division has the right to bring any action to enforce this Consent Order and to seek authorized penalties for any violation of this Consent Order.
VI. NOTICES
71. Unless otherwise specified, any report, notice or other communication required under the Consent Order shall be sent to:
For the Division: Garry Kaufman
Legal Administrative Specialist
Colorado Department of Public Health and Environment
MS: APCD-SS-B1-1400
4300 Cherry Creek Drive South
Denver, Colorado 80246-1530
For Cemex: John Lohr
Plant Manager
Cemex, Inc.
P.O. Box 529
Lyons, Colorado 80540-0529
VII. OBLIGATIONS UNAFFECTED BY BANKRUPTCY
72. The obligations set forth herein are based on the Division’s police and regulatory authority. These obligations require specific performance by Cemex of corrective actions carefully designed to prevent on-going or future harm to public health or the environment, or both. A petition does not stay enforcement of these obligations in bankruptcy. Cemex agrees that the penalties set forth in this Consent Order are not in compensation of actual pecuniary loss. Further, the obligations imposed by this Consent Order are necessary for Cemex and the Facility to achieve and maintain compliance with State law.
VIII. MODIFICATIONS
73. This Consent Order may be modified only upon mutual written agreement of the Parties. The Division may extend any deadlines set forth herein, and upon acceptance of such extension by Cemex, any such extension shall constitute a modification to this Consent Order.
IX.
BINDING EFFECT, AUTHORIZATION TO SIGN
AND EFFECTIVE DATE
74. This Consent Order is binding upon the Parties to this Consent Order and their corporate subsidiaries or parents, their officers, directors, agents, attorneys, employees, contractors, successors in interest, and assigns. The undersigned warrant that they are authorized to bind legally their respective principals to this Consent Order. This Consent Order shall be effective upon the date signed by the last party. In the event that a party does not sign this Consent Order within thirty (30) calendar days of the other party's signature, this Consent Order becomes null and void. This Consent Order may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Consent Order.
COLORADO DEPARTMENT OF PUBLIC HEALTH AND
ENVIRONMENT
By:
Date:
Margie Perkins
Director
Air Pollution
Control Division
By:
Date:
David R. Ouimette,
Manager
Stationary Sources Program
Air Pollution
Control Division
CEMEX, INC.
By:
Date:
John Lohr
Plant Manager
cc: Bob Jorgenson, APCD
Paul Carr, APCD
Pam Milmoe, BCHD
Gabi Hoefler, BCHD
Frank Johnson, Colorado Attorneys General Office
Casey Shpall, Colorado Attorneys General Office
Cindy Reynolds, U.S. EPA (Region VIII)
Dennis Arfmann, Cemex counsel
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