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COLORADO
DEPARTMENT OF PUBLIC HEALTH
AND
ENVIRONMENT
AIR
POLLUTION CONTROL DIVISION
STATIONARY
SOURCES PROGRAM
NOTICE OF VIOLATION Case No. 2005-049
In the Matter of CEMEX, Inc.
The
Colorado Department of Public Health and Environment (“CDPHE”), through the Air
Pollution Control Division (“Division”), issues this Notice of Violation to
CEMEX, Inc. (“CEMEX”) pursuant to the
Division’s authority under C.R.S. § 25-7-115(2).
I. ALLEGED
FINDINGS OF FACT
1. The Division issues this Notice of
Violation (“NOV”) as a follow up to an inspection at CEMEX’s Portland Cement
Manufacturing facility (“Facility” or “Plant”) located at 5134 Ute Highway,
Boulder County, in Lyons, Colorado. The
Plant includes activities at the Dowe Flats Quarry (“the Quarry”), and is
subject to the following:
a. Title V Operating Permit No. 95OPBO082[1]
(“Permit No. 95OPBO082,” issued to CEMEX February 1, 2000 and last revised
October 8, 2002), and the applicable requirements of several underlying
Construction Permits, including Permit Nos. 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, by extension, Subpart A, General Provisions (“Subpart A”); 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” or “Portland Cement MACT”).
2. On or about February 1, 2004, CEMEX
submitted an Operations and Maintenance Plan (“O&M Plan”) for the Facility
as required by several applicable provisions.
On or about February 9, 2005, CEMEX submitted revisions to its O&M.
3. On June 14-15, 2005, Mr. Paul Carr, of
the Division, conducted a full compliance inspection of the Plant. Mr. John
Lohr, plant manager of CEMEX, accompanied Mr. Carr on June 14, and Mr. Eric
Hodek, Environmental Manager for CEMEX, accompanied Mr. Carr on June 15,
2005. Based upon a review of Mr. Carr’s
inspection and other records, the Division has made the following compliance
determinations.
4. Pursuant to a Memorandum of Understanding
executed by CEMEX and Boulder County Health Department on August 29, 2001, in
order to minimize fugitive dust at the Plant, CEMEX agreed to install and
operate a truck wash system. During his inspection, Mr. Carr observed a
number of cement transport trucks loading cement and exiting the facility
without using the water spray system installed to wash cement spillage off the
trucks to minimize tracking out any materials.
Mr. Carr further observed evidence of cement track-out from the trucks
loaded with cement on the access roadway to Highway 66 that was not being
properly addressed in accordance with the provisions of Section II, Condition
11.6.6 of Permit No. 95OPBO082.
5. Pursuant to Section II, Condition
24.4.2 of Permit No. 95OPBO082 and 40 C.F.R. §63.1350 CEMEX is required to
submit a written operations and maintenance plan. Failure to comply with the conditions of the operations and
maintenance plan shall be considered a violation Subpart LLL. Additionally, pursuant to Section II,
Condition 13.2 of Permit No. 95OPBO082, CEMEX is required to perform routine
maintenance on the baghouses in accordance with written procedures. Pursuant to Section 2.4 of its O&M Plan
submitted on or about February 1, 2004, and revised on or about February 9,
2005, CEMEX is required to conduct weekly inspections of the A5 Cement Silo
baghouse and record the results on a weekly maintenance log. At the time of his inspection, Mr. Carr
observed significant visible emissions from the silo and inoperable control
equipment. CEMEX provided maintenance logs indicating that the A5 Cement Silo
baghouse had last been checked on May 10, 2005. As such, CEMEX failed to conduct weekly checks of the A5 Cement
Silo baghouse from May 10 to June 14, 2005, in violation of Section II, Conditions
13.2 and 24.4.2 of Permit No. 95OPBO082, as well as 40 C.F.R. §63.1350.
6. Pursuant
to Section II, Condition 24.10.4 of Permit No. 95OPBO082 and 40 C.F.R. §63.1348,
emissions from any finished product storage bin or conveying system transfer
point shall not exceed 10 percent opacity.
On June 14, 2005, Mr. Carr observed visible emissions from the top of
what was later identified as the A5 Cement Silo where CKD dust is conveyed
pneumatically and stored prior to sale.
Mr. Carr subsequently conducted an opacity reading of these emissions in
accordance with EPA Reference Method 9, which showed a six-minute average
opacity of 18.5%, in violation of Section II, Condition 24.10.4 of
Permit No. 95OPBO082 and 40 C.F.R. §63.1348. Shortly
thereafter, Mr. Carr provided a copy of the Visible Emissions Observation Form
documenting his reading to John Lohr.
7. Pursuant
to 40 C.F.R. § 63.1343(b)(3)(i) and Section II, Condition 24.9.1.2 of Permit
No. 95OPBO082, no owner or operator of an existing kiln at a major stationary
source shall cause to be discharged into the atmosphere any gases that contain
dioxin/furans (D/F) in excess of 0.20 ng dscm toxicity equivalent (TEQ). Pursuant to 40 C.F.R. § 63.1344(a) and
Section II, Condition 24.9.1.3 of Permit No. 95OPBO082, in order to demonstrate
continuous compliance with the D/F standard, CEMEX must operate the kiln such
that the temperature of the gas at the inlet to the kiln particulate matter
control device (“PMCD”) and alkali bypass PMCD do not exceed the temperature
limits established pursuant the performance test conducted in accordance with
40 C.F.R. §63.1349(b)(3). CEMEX conducted an initial performance test in
accordance with 40 C.F.R. §63.1349(b)(3) using EPA Reference Method 23 on or
about June 4-5, 2002, which established an average maximum kiln PMCD inlet
temperature of 496° F, and an average alkali bypass PMCD inlet temperature of
476° F. CEMX conducted an additional
performance test on or about November 13-14, 2002, which established an average
maximum kiln PMCD inlet temperature of 517°F, and an average maximum alkali
bypass PMCD inlet temperature of 509°F. [2]
Pursuant to 40 C.F.R. §63.1350(f) and Section II, Condition 24.6 of Permit No.
95OPBO082, CEMEX is required to continuously monitor and record the temperatures
of the gas at the inlet to the kiln PMCD and alkali bypass PMCD. Using this monitoring data, CEMEX is
required to calculate three-hour rolling average temperatures using 180
successive one-minute average temperatures to demonstrate compliance with the
standard. Pursuant to 40 C.F.R.
§63.1355, 40 C.F.R. §63.10(c) and Section II, Condition 24.7 of Permit No.
95OPBO082, CEMEX is required to maintain this temperature information in form
suitable and readily available for expeditious inspection and review. At a minimum, CEMEX is required to maintain
records for the preceding two years on-site.
8. During his inspection, Mr. Carr requested
the inlet PMCD gas temperature records for the years 2004 and 2005. CEMEX was unable to provide these records at
that time and ultimately provided the 2004 records to the Division on or about
July 18, 2005. To date, CEMEX has not
provided the 2005 records.
9. The inlet
PMCD gas temperature records that CEMEX provided to the Division indicate that
the temperature at the inlet of the kiln PMCD exceeded the maximum allowable
level, 517° F, approximately 72,067 times in 2004, and the temperature at the
inlet of the alkali bypass PMCD exceeded the maximum allowable level, 509° F,
approximately 368 times in 2004, based on 3-hour rolling averages.
10. Pursuant
to 40 C.F.R. §§63.1354(a)(8) and 63.10(e)(3) and Section II, Condition 24.8 of
Permit No. 95OPBO082, CEMEX is required to submit an excess emissions and
continuous monitoring system performance report (“EER”) for any event when the
continuous monitoring system data indicate that the source is not in compliance
with the applicable emission limitation or operating parameter limit. Such reports must be submitted semi-annually. CEMEX failed to submit EERs for the
approximately 72,067 occasions in 2004 where the three-hour rolling temperature
average at the inlet to the kiln PMCD exceeded the temperature maximum. Additionally, CEMEX submitted EERs for some,
but not all of the exceedances at the alkali bypass PMCD inlet.
11. Pursuant
to Section II, Condition 24.6 of Permit No. 95OPBO082 and 40 C.F.R. §63.8(d),
CEMEX is required to develop and implement a quality control program for its
continuous monitoring systems that meets the requirements of 40 C.F.R. §63.8(d)(2). Based on the monitoring records provided and
CEMEX’s failure to identify in excess of 72,000 temperature exceedances, it
appears that CEMEX has failed to develop and/or implement a qualifying quality
control program.
12. Pursuant
to Section II, Condition 24.4.1 of Permit No. 95OPBO082, at all times CEMEX is
required to operate and maintain any affected source and associated air
pollution control equipment in a manner consistent with good air pollution
practices. Based upon the following
observations made during Mr. Carr’s inspection and other records, CEMEX has
failed to operate the Plant in a manner consistent with good air pollution
control practices, in violation of Section II, Condition 24.4.1 of Permit No.
95OPBO082:
a. Mr. Carr’s six-minute average opacity reading of the
A5 Cement Silo baghouse as described in Paragraph 6 and failure to do weekly
checks on the A5 Cement Silo Baghouse as described in Paragraph 5;
b. CEMEX’s temperature exceedances as described in
Paragraph 9; and
c. CEMEX’s failure to use the truck wash system in order
to manage spills and accumulations as identified in Paragraph 4.
II. PROVISIONS OF THE LAW ALLEGED TO HAVE BEEN VIOLATED
13. CEMEX failed to conduct weekly checks of
the A5 Cement Silo baghouse from May 10 to June 14, 2005, as provided for in
CEMEX’s O & M Plan, in violation of Section II, Conditions 13.2 and
24.4.2 of Permit No. 95OPBO082, as well as 40 C.F.R. §63.1350.
14. On
June 14, 2005, CEMEX allowed the discharge of gases from the A5 Cement Silo baghouse to
emit gases in a six-minute average of 18.5% opacity, in violation of Section II, Condition
24.10.4 of Permit No. 95OPBO082 and 40 C.F.R. §63.1348.
15. CEMEX failed to operate the kiln such that the gas temperature at the inlet of the kiln PMCD does not exceed the maximum applicable temperature limit on approximately 72,067 occasions during 2004, and exceeded the maximum allowable temperature at the inlet of the alkali bypass PMCD on approximately 368 times during 2004, in violation of Section II, Condition 24.9.1.3 of Permit No. 95OPBO082 and 40 C.F.R. §63.1344(a).
16. As a result of these temperature exceedances, CEMEX exceeded the D/F of .20 ng per dscm in excess of 72,000 occasions during 2004, in violation of Section II, Condition 24.9.1.2 of Permit No. 95OPBO082 and 40 C.F.R. §63.1343(b)(3)(i).
17. CEMEX failed to maintain inlet PMCD gas temperature records
for the years 2004 and 2005 in a form suitable and readily available for
expeditious inspection and review in violation of Section II, Condition 24.7 of
Permit No. 95OPBO082, 40 C.F.R. §63.1355 and
40 C.F.R. §63.10(b)(1).
18.
CEMEX failed to report the approximately 72,067 exceedances of the
applicable temperature limit at the inlet of the kiln PMCD in 2004, and failed
to report numerous instances when the temperature at the inlet to the alkali
bypass PMCD exceeded the temperature maximum, in violation of Section
II, Condition 24.8 of Permit No. 95OPBO082, 40 C.F.R. §63.1354(a)(8) and 40
C.F.R. §63.10(e)(3).
19.
CEMEX failed to use a high efficiency sweeper, apply water or suspend or
reroute truck traffic to minimize fugitive emissions carried out from trucks
not using the truck wash system in violation of Section II, Condition 11.6.6 of
Permit No. 95OPBO82.
20.
CEMEX failed to develop and or implement a qualifying quality control
program for the continuous monitoring systems that monitor the temperature at
the inlet to the kiln PMCD and the inlet to the alkali bypass PMCD in violation
of Section II, Condition 24.6 of Permit No. 95OPBO0852 and 40 C.F.R.
§63.8 (d).
21. CEMEX failed to operate the Plant in a manner consistent with good air pollution control practices, in violation of Section II, Conditions 24.4.1 of Permit No. 95OPBO082.
III.
STANDARD PENALTY PROVISION
FOR THE VIOLATION AS ALLEGED
22. Sections 25-7-115(3)(b) and
25-7-122(1)(b), C.R.S., provide that any person who violates any requirement of
a construction permit or a regulation of the Commission shall be subject to a
civil penalty of not more than Fifteen Thousand Dollars ($15,000.00) per day
for each day of such violation.
23. Section 25-7-115(5), C.R.S., requires the
Division to determine if a noncompliance penalty is applicable. If the Division finds a noncompliance
penalty is applicable, the Division must assess the penalty for any period of
violation from the date of this notice until the date on which the emission
source is brought into compliance. The
Division will calculate the noncompliance penalty in accordance with the
provisions of § 25-7-115(5)(b), C.R.S.
IV.
CONFERENCE REGARDING THE
ALLEGED VIOLATION
24. In
accordance with the requirements of § 25-7-115(3), C.R.S., the Division has
scheduled a conference regarding the violations described above at October
20, 2005 at 10:00 AM, at the Air Pollution Control Division office, located
at 4300 Cherry Creek Drive South, Denver, Colorado 80246. This conference will provide CEMEX an
opportunity to submit data, views, and arguments concerning the violation and
whether assessment of civil and noncompliance penalties is appropriate. The conference is an informal proceeding;
however, you may have legal counsel attend with you. Following the conference and upon completion of our
investigation, the Division will determine whether a Compliance Order will be
issued and whether a civil penalty and noncompliance penalty must be
assessed. The Division may provide
further opportunity for you to respond after the conference if circumstances
warrant.
25. If the scheduled conference date and time
is not convenient for you, contact Mr. Robert Jorgenson, at 303-692-3171, to
reschedule the conference. If you have
any other questions concerning the conference or other matters prior to the
scheduled conference, contact Jennifer Mattox, at 303-692-3144, to discuss
those concerns.
V.
ADDITIONAL ACTION BY THE
DIVISION
26. If you fail to attend the conference, the Division will issue a Compliance Order and possibly assess penalties against CEMEX. Subsequent violation of the Compliance Order may subject CEMEX to further enforcement action under § 25-7-121, C.R.S. (court injunction) and C.R.S. § 25-7-122, (civil penalties up to $15,000.00 per day of violation).
VI. EFFECTIVE
DATE OF NOTICE
27. This Notice of Violation shall become effective upon
receipt. Dated this 23rd day
of September 2005.
______________________________
Robert
Jorgenson
Supervisor, Field
Services
Stationary Sources
Program
Air Pollution Control
Division
____________________________________
Paul Carr
Unit Supervisor, Field
Enforcement
Stationary Sources
Program
Air Pollution Control
Division
cc: Will Allison, Office of the Attorney
General