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Case 6:12-cv-01110-EFM-JP0 Document 3-1 Filed 03/26/12 Page 1 of 91
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA, ) AND THE STATE OF KANSAS )
) Plaintiffs, )
) )
v. ) ) )
NATIONAL COOPERATIVE ) REFINERY ASSOCIATION, )
) Defendant. )
)
Civil Action No. 6:12-cv-1110-ESAI-JP0
CONSENT DECREE
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TABLE OF CONTENTS
I. JURISDICTION AND VENUE -2-
II. APPLICABILITY -3-
III. OBJECTIVES -4-
IV. DEFINITIONS -4-
V. CIVIL PENALTY -6-
VI. INJUNCTIVE RELIEF -7-
VII. SUPPLEMENTAL ENVIRONMENTAL PROJECT -27-
VIII. REPORTING REQUIREMENTS -31-
IX. STIPULATED PENALTIES -34-
X. FORCE MAJEURE -40-
XI. DISPUTE RESOLUTION -42-
XII. INFORMATION COLLECTION AND RETENTION -45-
XIII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS -46-
XIV. COSTS -48-
XV. NOTICES -48-
XVI. EFFECTIVE DATE -49-
XVII. RETENTION OF JURISDICTION -50-
XVIII. MODIFICATION -50-
XIX. TERMINATION -50-
XX. PUBLIC PARTICIPATION -52- i
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XXI. SIGNATORIES/SERVICE -52-
XXII. INTEGRATION -52-
XXII. FINAL JUDGMENT -53-
XXIII. APPENDICES -53-
ii
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A. Plaintiff United States of America, on behalf of the United States Environmental
Protection Agency ("EPA") and the State of Kansas acting through the Kansas Department of
Health and Environment ("KDHE"), have filed a complaint in this action concurrently with this
Consent Decree alleging that Defendant, National Cooperative Refinery Association ("NCRA"),
violated the following environmental statutes and implementing federal and state regulations at
one or more of each Defendant's facilities: the Clean Air Act ("CAA"), 42 U.S.C. §§ 7401-
7671q for violations of (a) the federally-enforceable Kansas State Implementation Plan (the
"Kansas SIP"), (b) the New Source Performance Standards ("NSPS") of the Act, 42 U.S.C. §
7411, and (c) the Risk Management Program requirements of the Act, 42 U.S.C. § 7412(r); the
Emergency Planning and Community Right-to-Know Act ("EPCRA"), 42 U.S.C. §§ 11001-
11050; and the Comprehensive Environmental Response, Compensation, and Liability Act
("CERCLA"), 42 U.S.C. §§ 9601-9675. Pursuant to Section 113(a)(I) of the CAA, 42 U.S.C. §
7413(a)(1), notice of the violations of the Kansas SIP that are alleged in this complaint have been
given to the State of Kansas, and NCRA at least 30 days prior to the filing of the complaint.
B. NCRA owns and operates a 85,000 barrel per day petroleum refinery located on
Iron Horse Road, McPherson, Kansas ("Refinery") and an associated underground product
storage facility in Conway, Kansas ("Conway"), collectively, the "Facilities".
C. Defendant does not admit any liability to the United States or the State arising out
of the transactions or occurrences alleged in the Complaint.
D. 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.
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NOW, THEREFORE, before the taking of any testimony, without the
adjudication or admission of any issue of fact or law except as provided in Section I, 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 over the subject matter of this action, pursuant
to 28 U.S.C. §§ 1331, 1345, and 1355, and Section 113(b) of the CAA, 42 U.S.C. § 7413(b);
Section 325 of EPCRA, 42 U.S.C. § 11045; and Sections 109(c) and 113 of CERCLA, 42 U.S.C.
§§ 9609(c) and 9613, and over the Parties. Venue lies in this District pursuant to Section 113(b)
of the CAA, 42 U.S.C. § 7413(b); EPCRA Section 325(b), 42 U.S.C. § 11045(b); and CERCLA
Section 113(b), 42 U.S.C. § 9613(b), and 28 U.S.C, §§ 1391 (b) and (c) and 1395(a), because the
violations alleged in the Complaint are alleged to have occurred in, and Defendant conducts
business in, this judicial district. For purposes of this Consent Decree, or any action to enforce
this Decree, Defendant consents to the Court's jurisdiction over this Consent Decree and any
such action and over Defendant and consents to venue in this judicial district.
2. For purposes of this Consent Decree, Defendant agrees that the Complaint
states claims upon which relief may be granted pursuant to the following environmental statutes
and their implementing federal and state regulations: the CAA, 42 U.S.C. §§ 7401-7671q for
violations of (a) the federally-enforceable Kansas SIP, (b) the NSPS provisions of the Act, 42
U.S.C. § 7411, and (c) the Risk Management Program requirements of the Act, 42 U.S.C. §
7412(r); EPCRA, 42 U.S.C. §§ 11001-11050; and CERCLA, 42 U.S.C. §§ 9601-9675.
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II. APPLICABILITY
3. The obligations of this Consent Decree apply to and are binding upon the
United States and the State, and upon Defendant and any successors, assigns, or other entities or
persons 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 Defendant of its
obligation to ensure that the terms of the Consent Decree are implemented. At least 30 Days
prior to such transfer, Defendant 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 EPA Region VII, the United States Attorney
for the District of Kansas, and the United States Department of Justice, in accordance with
Section XIV of this Decree (Notices). Any attempt to transfer ownership or operation of the
Facility without complying with this Paragraph constitutes a violation of this Consent Decree.
5. Defendant 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. Defendant 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, 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.
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III. OBJECTIVES
7. It is the purpose of the Parties to this Consent Decree to further the
objectives of the CAA, the Kansas Air Quality Act, Kan. Stat. Ann. § 65 - 3001 et seg, the
reporting requirements of CERCLA Section 103 and EPCRA Section 304, the Risk Management
Program requirements of Section 112(r)(7) of the CAA, and the recordkeeping and reporting
requirements of EPCRA Sections 312 and 313, and to settle and resolve, as provided in Section
XVIII of this Consent Decree, all allegations in the Complaint brought by the Plaintiffs in the
matter.
IV. DEFINITIONS
8. Terms used in this Consent Decree that are defined in the relevant statutes
or in regulations promulgated pursuant to the relevant statutes 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. "Complaint" shall mean the complaint filed by the United States
and the State in this action;
b. "Consent Decree" or "Decree" shall mean this Decree and all
appendices attached hereto listed in Section XXIII;
c. "Covered Process" as specified by 40 C.F.R. § 68.3 shall mean "a
process that has a regulated substance present in more than a threshold quantity as determined
under 40 C.F.R. § 68.115";
d. "Day" shall mean a calendar day unless expressly stated to be a
business day. In computing any period of time under this Consent Decree, where the last day
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would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of
business of the next business day;
e. "Defendant" shall mean National Cooperative Refinery
Association ("NCRA");
f. "EPA" shall mean the United States Environmental Protection
Agency and any of its successor departments or agencies;
g. "Effective Date" shall have the definition provided in Section XV.
h. "Facilities" shall mean:
Defendant's petroleum refinery located in McPherson,
Kansas ("Refinery"); and
ii. Defendant's underground storage product facility located in
Conway, Kansas ("Conway");
i. "Paragraph" shall mean a portion of this Decree identified by an
arabic numeral;
"Parties" shall mean the United States, the State, and Defendant(s);
k. "RMP" shall mean the risk management plan required pursuant to
40 C.F.R. Part 68;
"Regulated Substance" as specified by 40 C.F.R. § 68.3 shall mean
"any substance listed pursuant to section 112(r)(3) of the Clean Air Act, as amended, in 40
C.F.R. § 68.130";
m. "Section" shall mean a portion of this Decree identified by a roman
numeral;
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n. "State" shall mean the State of Kansas acting through the Kansas
Department of Health and Environment;
o. "United States" shall mean the United States of America, acting on
behalf of EPA;
V. CIVIL PENALTY
9. Within 30 Days after the Effective Date of this Consent Decree, Defendant
shall pay the sum of Seven Hundred Thousand Dollars ($700,000) as a civil penalty, together
with interest accruing from the date on which the Consent Decree is lodged with the Court, at the
rate specified in 28 U.S.C. § 1961 as of the date of lodging as follows: (i) $475,000 to the United
States and (ii) $225,000 to the Kansas Department of Health and Environment.
10. Defendant shall pay the civil penalty due to the United States by FedWire
Electronic Funds Transfer ("EFT") to the U.S. Department of Justice in accordance with written
instructions to be provided to Defendant, following entry of the Consent Decree, by the Financial
Litigation Unit of the U.S. Attorney's Office for the District of Kansas, 500 State Avenue, Suite
360, Kansas City, Kansas 66101, (913) 551-6730. At the time of payment, Defendant 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 penalty owed pursuant to the Consent
Decree in United States and State of Kansas v. National Cooperative Refinery Association, and
shall reference the civil action number and DOJ case number 90-5-1-1-06025/3, to the United
States in accordance with Section XIV of this Decree (Notices); by email to
and by mail to:
EPA Cincinnati Finance Office 26 Martin Luther King Drive
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Cincinnati, Ohio 45268
11. Defendant shall pay the civil penalty due to the State of Kansas (as specified
in Paragraph 9) by certified or corporate check made payable to the Kansas Department of
Health and Environment. At the time of payment, Defendant shall send a transmittal letter,
which shall state that the payment is for the civil penalty owed pursuant to the Consent Decree in
United States and Kansas v. National Cooperative Refinery Association, and shall reference the
civil action number to the following address:
Mrs Shelia Pendleton Office of Legal Services Kansas Department of Health and Environment 1000 SW Jackson, Suite 560 Topeka, KS 66612-1367
12. Defendant shall not deduct any penalties paid under this Decree pursuant
to this Section or Section VIII (Stipulated Penalties) in calculating its federal or State or local
income tax.
VI. INJUNCTIVE RELIEF
13. Unicracker Unit Heater
a. No later than 180 days after the Date of Entry, NCRA shall submit
a complete application to the Kansas Department of Health and Environment (KDHE) to amend
the Clean Fuels Project PSD construction permit dated June 27, 2005 (most recently revised
9/28/10). The application shall contain sufficient information to revise the NOx BACT emission
limit for the Unicracker Unit Heater.
i. This permit amendment shall be limited to the NOx
emission limit for the Unicracker Unit Heater, and shall not constitute a re-opening of the
existing PSD permit for the Clean Fuels Project with respect to any other requirement. 7
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b. Following submission of the application to amend the June 27,
2005 (most recently revised 9/28/10) PSD construction permit, NCRA shall cooperate with
KDHE by promptly submitting all information that KDHE requests following their receipt of the
application. Upon issuance of a revised PSD construction permit, or in conjunction with such
permitting, NCRA shall file any applications necessary to incorporate the requirements of the
revised permit into the facility's CAA Title V permit.
14. Unicracker Flaring
a. No later than 180 days after the Date of Entry, NCRA shall
conduct initial training of refinery personnel responsible for the start-up of the Unicracker Unit.
The training shall include proper start-up procedures to minimize emissions during normal and
cold weather conditions. Refresher training shall be conducted for all such personnel once every
calendar year during the life of the Consent Decree.
15. Risk Management Applicability Study for Refinery
a. No later than 60 Days after the Date of Entry, NCRA shall review
all inventories, process records, and lab tests to determine, in accordance with recognized and
generally accepted good engineering practices, the quantity present at the Refinery of all
Regulated Substances (and their components) listed at 40 C.F.R. § 68.130. Such review shall be
conducted consistent with the regulations found at 40 C.F.R. Part 68.
b. For all Regulated Substances present at the Refinery (regardless of
whether a substance exists in a Covered Process) as of the Date of Entry that are either a listed
toxic substance, flammable substance, or part of a flammable mixture, NCRA shall submit a
report to EPA within 90 Days after the Date of Entry containing the following information:
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i. A description of each process, including a list of process
streams, pressure vessels, and atmospheric tanks within each process.
ii A map including the boundaries of each process.
iii. The amount and CAS number of each Regulated
Substance present in each process stream and the total amount in each process.
iv. For materials that comprise a flammable or toxic mixture,
include a list of all 112(r) regulated components.
v. Include an explanation for omitting any Regulated
Substance or flammable mixture (including NFPA rating, if applicable) in a process that will not
be listed on the updated RMP referenced in sub-paragraph d.
c. If it is determined that a process should have been considered a
Covered Process under 40 C.F.R Part 68 and was not previously included in the RMP, NCRA
shall no later than 180 Days after the Date of Entry, develop a program and complete all required
documentation under 40 C.F.R. Part 68. NCRA shall include a notice of completion stating that
it has completed this work in the next semi-annual report submitted after that date.
d. If the review required under this paragraph determines that
corrections are required to NCRA's RMP for the refinery, NCRA shall, within 210 Days of the
Date of Entry, submit an updated RMP consistent with information found during this review.
16. EPCRA 312 Audit
a. No later than 90 Days after the Date of Entry, NCRA shall retain a
third party to conduct an EPCRA 312 Audit of the Tier II Forms for the Refinery and Conway
submitted by NCRA for reporting year 2010.
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i. This EPCRA 312 Audit shall consider (1) all materials at
the Refinery and Conway that are Extremely Hazardous Substances (EHSs) listed in 40 C.F.R.
Part 355 Appendix A and B, or that contain more than 1% by weight of a listed EHS (or 0.1% by
weight for a carcinogenic chemical, as provided in 40 C.F.R. § 370.14(c)); and (2) all hazardous
chemicals for which MSDSs must be developed under 29 C.F.R. § 1910.1200, and which are
present in quantities greater than or equal to 10,000 pounds.
ii The EPCRA 312 Audit shall also review the practices used
by NCRA to gather and track information relevant to Tier II reports, as well as the NCRA's
procedures for training personnel to perform related tasks.
b. At NCRA's option, the EPCRA 312 Audit may also review the
Tier II forms for the Refinery and/or Conway for reporting years 2007, 2008, and/or 2009.
c. No later than 120 Days after the Date of Entry, NCRA shall correct
any Tier II forms identified by NCRA or the third party referenced in subparagraph a. as having
inaccurate information and submit the revised forms to the Conway and/or McPherson fire
departments (as applicable), the LEPC, and Kansas SERC. For materials listed in the
resubmitted Tier II reports that contain more than 1% by weight of an EHS (or 0.1% by weight
for a carcinogenic chemical), NCRA will provide the EHS constituent information in the Mixture
Component Information section (6b) of the Kansas Tier II form.
d. In its next semi-annual report submitted more than 120 Days after
the Date of Entry, NCRA shall include a report summarizing the findings of the EPCRA 312
Audit. The report shall include the following information:
i. what reporting periods were reviewed;
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ii. what records were reviewed;
iii. what revised reports were submitted to which entities; and
iv. any revised procedures, processes, or training materials for
completing and ensuring the accuracy of Tier II Forms that are developed in response to audit
findings.
e. In its Tier II submittals for the Refinery and Conway for reporting
year 2011, NCRA shall provide the EHS constituent information in the Mixture Component
Information section (6b) of the Kansas Tier II form for materials included on the Tier II form
that contain more than 1% by weight of an EHS.
17. EPCRA 313 Audit
a. No later than 90 Days after the Date of Entry, NCRA shall retain a
third party to conduct a data quality review of TRI submittals (Form R's and/or Form A's) for
the Refinery and Conway for reporting year 2010. This EPCRA 313 Audit shall consider the
quantities of toxic chemicals listed in 40 C.F.R. § 372.65 that are manufactured, processed, or
otherwise used (as those terms are defined in 40 C.F.R. Part 372) at the Refinery and Conway.
The Audit shall verify that all appropriate substances have been identified as potentially needing
to be reported, and that the calculation methodologies used by NCRA to determine whether
thresholds are being met or exceeded and the amounts being reported as released are accurate,
i. The EPCRA 313 Audit shall include a review of relevant
MSDSs, inventories, purchase records, sales records, and release records for the chemicals listed
in 40 C.F.R. § 372.65, as well as for substances containing more than a de minimis concentration
(as that term is defined in 40 C.F.R. § 372.38(a)) of a chemical listed in 40 C.F.R. § 372.65.
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The EPCRA 313 Audit shall also review the practices used
by NCRA to gather information relevant to TRI submittals, as well as NCRA's procedures for
training personnel to perform related tasks.
b. At NCRA's option, the EPCRA 313 Audit may also include a data
quality review of TRI submittals for the Refinery and Conway for reporting years 2007, 2008,
and/or 2009.
c. No later than 120 Days after the Date of Entry NCRA shall update
any TRI submittal identified in the EPCRA 313 Audit as having contained inaccurate
information. NCRA will submit the revised forms to EPA and the Kansas Department of Health
and Environment, Bureau of Environmental Health.
d. In its next semi-annual report submitted more than 120 Days after
the Date of Entry, NCRA shall include a report summarizing the findings of the EPCRA 313
Audit. The report shall include the following information:
i. what reporting periods were reviewed;
ii. what records were reviewed;
iii. what revised reports were submitted to which entities; and
iv. any revised procedures, processes, or training materials for
completing and ensuring the accuracy of TRI submissions that are developed in response to audit
findings.
e. With respect to listed chemicals that are also regulated under CAA
Section 112(r), NCRA shall ensure that the maximum inventory information on the TRI
submittals for the first reporting year after the Date of Entry is updated according to the RMP
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Applicability Review conducted under Paragraph 15.
18. CERCLA/EPCRA Reporting Compliance Review. NCRA shall conduct a
CERCLA/EPCRA Reporting Compliance Review, for both the Refinery and Conway facilities,
of the one (1) calendar year (January 1 — December 31) preceding the Date of Entry to identify
any releases that may have been reportable under Section 103(a) of CERCLA, 42 U.S.C. §
9603(a), and Section 304 of EPCRA, 42 U.S.C. § 11004, or similar or corresponding state
reporting regulations. NCRA shall complete the following activities no later than one hundred
and twenty (120) Days after the Date of Entry:
a. For the releases that occurred on or about: November 28, 2005 —
December 22, 2005, January 9-11, 2006, February 2, 2007, June 8-11, 2007; and for all releases
identified in the Compliance Review for which NCRA seeks a resolution of liability, NCRA
shall:
i. Submit a CERCLA/EPCRA Compliance Review Report to
EPA Region 7 that identifies potential violations of Section 103(a) of CERCLA and Section 304
of EPCRA, or similar or corresponding state reporting regulations;
ii. For any EPCRA 304(a) or CERCLA 103 release reports
where a substance was not reported to the NRC, State of Kansas, or LEPC, make the necessary
notifications; and
iii. For EPCRA 304(a) release reports where the amount
released was inaccurate, update and resubmit the written follow-up reports required under
304(c).
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b. Based on the Compliance Review, correct and/or update release
reporting procedures as necessary and identify any specific steps NCRA shall take to ensure
compliance in the future. NCRA shall submit a copy of any corrected reporting procedures for
both the Refinery and Conway to EPA with the next semi-annual report submitted after the
Compliance Review is completed; and
c. Conduct training for NCRA's environmental compliance personnel
to instruct them on the reporting requirements of Section 103(a) of CERCLA, 42 U.S.C.
§9603(a), and Section 304 of EPCRA, 42 U.S.C. § 11004, or similar or corresponding state
reporting regulations, and to acquaint these personnel with the procedures adopted by NCRA to
meet those requirements. NCRA shall certify completion of the training with the next semi-
annual report submitted after the training is completed.
19. EPCRA/CERCLA Continuous Release Review . For the one (1)
reporting year prior to the Date of Entry, NCRA shall conduct an audit of all CERCLA/EPCRA-
reportable releases of hazardous substances (as designated in CERCLA Section 102(a)) and
extremely hazardous substances (as defined under 40 C.F.R. Part 355, Appendices A and B)
from the Refinery and Conway and determine whether any Continuous Release Report(s) in
accordance with 40 C.F.R. Parts 302 and 355 is appropriate for either facility.
a. NCRA shall complete the following activities no later than one
hundred and twenty (120) Days after the Date of Entry:
i. For all continuous releases for which NCRA seeks a
resolution of liability, submit a Continuous Release Review Report to EPA and the Kansas
SERC that identifies releases at the Refinery and Conway which should have been reported as
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"Continuous," within the meaning of 40 C.F.R. § 302.8 or 355.32, or similar or corresponding
state reporting regulations;
ii. Complete notification calls to the LEPC, SERC, and NRC
for each facility;
iii. Based on the Continuous Release Review, correct and/or
update release reporting procedures and identify specific steps NCRA shall take to ensure
compliance in the future. NCRA shall submit a copy of any corrected procedures to EPA for
both facilities in the next semi-annual report filed after the completion of the Continuous Release
Review Report; and
iv. Conduct training for NCRA's environmental compliance
personnel to instruct them on the reporting requirements of 40 C.F.R. Part 302, or similar or
corresponding state reporting regulations, and to acquaint these personnel with the procedures
adopted by NCRA. NCRA shall certify completion of the training with the next semi-annual
report submitted after the training is completed.
b. No later than thirty Days after the notification calls are made
NCRA shall submit any initial written notification reports required under 40 C.F.R. Parts 302
and 355 to the LEPC, SERC, and NRC.
c. A year after notification calls are made, NCRA shall review
information concerning all releases for the past year to determine if the information reported in
the Refinery's and Conway's continuous release reports are still accurate. Within 1 year and 30
Days of any notification calls NCRA shall submit the written follow-up notification report to the
EPA, as required under 40 C.F.R. Part 302.
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20. EPCRA 312 Tier II Fees. No later than 30 Days of the Date of Entry,
NCRA shall pay the retroactive Kansas Tier H fees to KDHE for Conway for calendar years
2005, 2006, 2007, and 2008. NCRA shall provide proof of the payment to EPA in its next semi-
annual report.
21. Refinery Risk Management -- Toxic Worst Case Analysis.
a. Within 210 Days of the Date of Entry, NCRA shall determine the
off-site impacts (as defined by 40 C.F.R. §§ 68.30 and 68.33) within the toxic worst case circle
of the Rapid Acid Transfer System (RATS) vessel and update the RMP to include the identified
off-site impacts.
b, NCRA will include a notice of completion stating that it has
completed this work in the next semi-annual report submitted after that date.
22. Refinery Risk Management -- Process Safety Information. For all
pressure vessels and tanks (and their associated pressure-relief valves) and atmospheric storage
vessels in the Alkylation Unit (including tanks E-30 and E-31), as well as tanks E-32 and E-33
and their associated pressure-relief valves, NCRA shall:
a. Compile and document written information pertaining to the
applicable design codes and standards;
b. Document compliance with recognized and generally accepted
good engineering practices; and
c. For any such pressure vessels and tanks (and their associated
pressure-relief valves) and atmospheric storage vessels designed or constructed in accordance
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with codes, standards, or practices that are no longer in general use, determine and document
whether that equipment is designed, inspected, tested, maintained, and operated in a safe manner.
d. NCRA will comply with the requirements of this paragraph within
180 Days of the Date of Entry. NCRA will include a notice of completion stating that it has
completed this work in the next semi-annual report submitted after that date.
23. Refinery Risk Management -- Special Tank /Container Report. NCRA
shall, within ninety (90) Days after the Date of Entry, submit a report to EPA containing
information as described below.
a. The reporting requirements of this Paragraph shall be limited to the
following equipment in the Risk Management Program processes at the NCRA refinery:
E-30, E-31, E-32, E-33;
ii. VV-0247 (the Number 2 Acid Settler);
iii. VV-0436 (the Number I Acid Settler);
iv. any equipment that contains 250,000 pounds or more of a
RMP-regulated flammable substance or 250 pounds or more of hydrogen fluoride/hydrofluoric
acid; and
v, pressure-relieving devices for this specified equipment.
b. The report shall include, at a minimum:
i. the date of the most recent internal, external and, if
performed, on-stream inspection/test;
ii the scheduled date for the next planned internal, external
and, if applicable, on-stream inspection/test; 17
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iii. an explanation of how the frequency of inspections
referenced in Subparagraphs 23.b.i and 23.b.ii are consistent with applicable manufacturer's
recommendations, good engineering practices, and industry standards;
iv. for inspections conducted at intervals prescribed by
NCRA's Risk-Based Inspection Program, provide: an explanation and supporting documentation
of how the relevant inspection interval is consistent with generally accepted good engineering
practices and/or manufacturers' recommendations;
v. for the most recent internal, external and, if performed, on-
stream inspection(s)/test(s) provide:
I. the date of the inspection(s)/test(s);
2. the serial number or other identifier of the equipment on
which the inspection(s)/test(s) were performed;
3. a description of the inspection(s)/test(s) performed;
4. the name and credentials of the inspector(s);
5. the name of inspector's employer;
6. the inspector's certification(s) to perform the relevant
inspections;
7. the inspector's report of the results of the
inspection(s)/test(s); and
8. any subsequent reports or action cards addressing findings
resulting from the most recent inspections/tests;
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vi. all process safety documentation required pursuant to
Paragraph 22 above for the equipment referenced in this Paragraph. In addition, when applicable
under standards, determine and document the calculated life of the equipment referenced in this
Paragraph, or provide documentation explaining why such a determination is not needed; and
vii. A certification of the contents of the Report, pursuant to
Paragraph 44 (Certification).
24. Refinery Risk Management -- Process Hazard Analysis (PHA).
a. NCRA shall, with the first semi-annual report submitted more than
ninety (90) Days after the Date of Entry, submit the most recent PHA report(s) for the Alkylation
Unit and the most recent PHA report(s) for the Terminal Control Center that concern tanks E-32
and E-33, as well as PHA reports detailing the steps taken and further planned actions, including
an approximate schedule, to resolve all action items identified in those reports.
b. NCRA shall submit, in each subsequent semi-annual report,
information describing the steps taken to address the PHA findings and recommendations for the
Alkylation Unit and any PHA findings and recommendations for the Terminal Control Center
pertaining to tanks E-32 and E-33, until all identified findings and recommendations are resolved
or until such time as EPA notifies NCRA in writing that no further reports are required.
c. NCRA shall, by December 31, 2012, resolve all findings and
recommendations that do not require significant capital costs / engineering estimates. If
resolution of all findings and recommendations cannot be completed within the timeframe
established above, NCRA shall, by November 30, 2012, submit documentation to EPA that:
i. identifies unresolved findings and recommendations; 19
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ii summarizes steps taken to date to resolve these findings
and recommendations;
iii explains reasons the resolution has not been completed;
iv. provides anticipated actions to resolve the findings and
recommendations; and
v. provides a time line for completion.
d. For PHA items that do require significant capital costs /
engineering estimates. NCRA shall, by December 31, 2014, resolve all findings and
recommendations for the Alkylation Unit; and by December 31, 2013, resolve all findings and
recommendations for the Terminal Control Center pertaining to tanks E-32 and E-33. If
resolution of these findings and recommendations cannot be completed within the timeframe
established above, NCRA shall, thirty (30) Days prior to the respective deadlines established in
this Paragraph, submit documentation to EPA that:
i. identifies unresolved findings and recommendations;
ii. summarizes steps taken to date to resolve these findings
and recommendations;
iii. explains reasons the resolution has not been completed;
iv. provides anticipated actions to resolve the findings and
recommendations; and
v. provides a time line for completion.
25. Refinery Risk Management 2010 Compliance Audit.
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a. NCRA shall, in the first semi-annual report filed more than ninety
(90) Days after the Date of Entry, submit a report to EPA detailing the responses to each of the
findings identified in the 2010 Refinery Compliance Audit. This report shall:
i. identify the disposition of each finding identified in the
2010 Compliance Audit, including any findings that have been closed out;
provide a synopsis of the resolution of each finding; and
iii. for findings that have not been closed out, provide a
summary of the steps taken as of the date of the report, describe further planned actions, and set
forth a schedule for the resolution of each open finding.
b. NCRA shall submit in its semi-annual reports, information
describing the steps taken to resolve all 2010 Compliance Audit findings and recommendations
until all identified findings and recommendations are resolved or until such time as EPA notifies
NCRA in writing that no further reports are required.
26. Conway Risk Management - Propane Caverns.
a. No later than 180 Days after the Date of Entry, NCRA shall
modify the Risk Management program for Conway to include all applicable requirements of 40
C.F.R. Part 68 for the caverns actively used to store propane at Conway.
b. In the first semi-annual report submitted more than 180 Days after
the Date of Entry, NCRA shall include a written report which includes Process Safety
Information/Mechanical Integrity information for the caverns actively used to store propane
including:
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i. identification of any KDHE regulations and/or applicable
industry standards concerning process safety or mechanical integrity used for the caverns
actively used to store propane;
ii. the date of the most recent inspection/test;
iii. the scheduled date for the next planned inspection/test; and
iv. an explanation of how the inspection frequencies are
consistent with applicable KDHE regulations, good engineering practices, and industry
standards. If the last test/inspection is outside the timeframe allowed by KDHE regulations
and/or industry standards it shall be tested/inspected no later than 180 Days after the Date of
Entry.
c. In the first semi-annual report submitted more than 210 Days after
the Date of Entry, NCRA shall include a notice of completion stating that it has completed all
work required in Subparagraphs (a) and (b).
d. No later than 210 Days after the Date of Entry, NCRA shall submit
an updated Risk Management Plan for Conway that includes the caverns actively used to store
propane.
27. Conway Risk Management - RMP Applicability Study for Conway.
No later than 60 Days after the Date of Entry, NCRA shall review all
inventories and meter records to determine, in accordance with recognized and generally
accepted good engineering practices, the quantity present at Conway of all Regulated Substances
(and their components) listed at 40 C.F.R. § 68.130. Such review shall be conducted consistent
with the regulations found at 40 C.F.R. Part 68. 22
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a. For all Regulated Substances used or stored at Conway (regardless
of whether a substance exists in a Covered Process) as of the Date of Entry that are either a listed
toxic substance, flammable substance, or part of a flammable mixture, NCRA shall submit a
report to EPA within 90 Days after the Date of Entry containing the following information:
i. A description of each process, including a list of all caverns
and other vessels containing any Regulated Substance;
ii. A map indicating the location of each cavern or other
vessel containing a Regulated Substance;
iii. The amount and CAS number of each Regulated
Substance present in each cavern or vessel and the total amount in each process;
iv. The maximum intended amounts of each Regulated
Substance present (in pounds), considering administrative controls;
v. For materials that comprise a flammable or toxic mixture,
include a list of all 112(r)-regulated components and NFPA rating.
vi. Include an explanation for omitting any Regulated
Substance or flammable mixture (including NFPA rating, if applicable) in a process that will not
be listed on the updated RMP referenced in sub-paragraph c.
b. If it is determined that caverns or other vessels should have been
considered Covered Processes, or part of a Covered Process, under 40 C.F.R. Part 68 and were
not previously included in the RMP, NCRA shall no later than 180 Days after the Date of Entry
develop a program and complete all required documentation under 40 C.F.R. Part 68, NCRA
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shall include a notice of completion stating that it has completed this work in the next semi-
annual report submitted after that date.
c. If the review required under this paragraph determines that
corrections are required to NCRA's RMP for Conway, NCRA shall, within 210 Days after the
Date of Entry, submit an updated RMP consistent with the information found during this review.
28. Conway Risk Management - Process Safety Information for Conway.
a. NCRA shall develop a comprehensive, written list of maximum
inventories for each RMP-covered cavern (including caverns actively used to store propane) at
Conway, as determined by sonar surveys and/or administrative controls. NCRA shall conduct
training to acquaint the operators with the maximum intended inventories, including procedures
for locating any updated or revised maximum inventories.
b. In the first semi-annual report submitted more than 90 Days after
the Date of Entry, NCRA shall include a notice of completion stating that it has completed all
work required in this paragraph.
29. Conway Risk Management - Process Hazard Analysis for Conway.
a. NCRA shall commence a Process Hazard Analysis for all covered
processes at Conway, including the caverns actively used to store propane no later than January
4, 2012. NCRA shall submit to EPA the PHA report and a report of the findings and planned
actions, including an approximate schedule for the completion of all findings, no later than April
1, 2012.
b, NCRA shall submit, in each semi-annual report, information
describing the steps taken to address all findings and recommendations until all identified 24
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findings and recommendations are resolved or until such time as EPA notifies NCRA in writing
that no further reports are required.
c. NCRA shall, by April 1, 2014, resolve all findings and
recommendations that do not require significant capital costs / engineering estimates. If
resolution of all findings and recommendations cannot be completed within the timeframe
established above, NCRA shall, by March 1, 2014, submit documentation to EPA that:
i. identifies unresolved findings and recommendations;
ii. summarizes steps taken to date to resolve these findings
and recommendations;
iii. explains reasons the resolution has not been completed;
iv. provides anticipated actions to resolve the findings and
recommendations; and
v. provides a time line for completion.
d. For PHA items that do require significant capital costs
/engineering estimates, NCRA shall, by December 31, 2015 resolve all findings and
recommendations. If resolution of these findings and recommendations cannot be completed
within the timeframe established above, NCRA shall, by November 30, 2015, submit
documentation to EPA that:
identifies unresolved findings and recommendations;
ii. summarizes steps taken to date to resolve these findings
and recommendations;
iii. explains reasons the resolution has not been completed;
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iv. provides anticipated actions to resolve the findings and
recommendations; and
v. provides a time line for completion.
30. Conway Risk Management - Compliance Audit for Conway.
a. By June 1, 2013, NCRA shall commence a compliance audit at
Conway (ensuring that the caverns actively used to store propane are included in the review)
consistent with 40 C.F.R. § 68.79. The Compliance Audit and a report of the audit findings and
planned actions, including an approximate schedule for the resolution of all findings, shall be
submitted to EPA in the semi-annual report to be submitted in January 2014.
b. NCRA shall submit in each subsequent semi-annual report
information describing the steps taken to resolve all Conway Compliance Audit findings and
recommendations until all identified findings and recommendations are resolved or until such
time as EPA notifies NCRA in writing that no further reports are required. NCRA shall by June
1, 2015, resolve all findings and recommendations of the Compliance Audit. If resolution of all
findings and recommendations cannot be completed within the time frame established above,
NCRA shall, by May 1, 2015 submit documentation to EPA that:
identifies unresolved findings and recommendations;
ii. summarizes steps taken to resolve these findings and
recommendations;
iii. explains reasons the resolution has not been completed;
iv. provides anticipated actions to resolve the findings and
recommendations; and provides a time line for completion.
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VII. SUPPLEMENTAL ENVIRONMENTAL PROJECTS
31. Defendant shall implement the Supplemental Environmental Projects
("SEPs"), in accordance with all provisions of Appendix A of this Consent Decree. The SEPs
shall be completed in accordance with the schedule set forth in Appendix A.
32. Defendant is responsible for the satisfactory completion of the SEPs in
accordance with the requirements of this Decree. "Satisfactory completion" means purchase and
delivery of the equipment identified in Appendix A of this Consent Decree to the intended
recipient. As to the "Reverse 911" SEP identified in Appendix A, Paragraph 5, satisfactory
completion shall mean contracting and funding of the "Reverse 911" program and the
satisfactory performance of that contract. Defendant may use contractors or consultants in
planning and implementing any SEP, but Defendant remains responsible for the satisfactory
completion of the SEPs.
33. NCRA certifies that it is not a party to any open federal financial
assistance transaction that is funding or could be used to fund the same activity as the SEPs.
NCRA further certifies that, to the best of its knowledge and belief after reasonable inquiry, there
is no such open federal financial transaction that is funding or could be used to fund the same
activity as the SEPs, nor has the same activity been described in an unsuccessful federal financial
assistance transaction proposal submitted to EPA within two years of the date of this settlement
(unless the project was barred from funding as statutorily ineligible). For the purposes of this
certification, the term "open federal financial assistance transaction" refers to a grant,
cooperative agreement, loan, federally-guaranteed loan guarantee or other mechanism for
providing federal financial assistance whose performance period has not yet expired. 27
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34. With regard to the SEPs, Defendant certifies the truth and accuracy of
each of the following:
a. that all cost information provided to EPA in connection with
EPA's approval of the SEPs is complete and accurate and that Defendant in good faith estimates
that the cost to implement each SEP is set forth in Appendix A;
b. that, as of the date of executing this Decree, Defendant is not
required to perform or develop the SEPs by any federal, state, or local law or regulation and is
not required to perform or develop the SEPs by agreement, grant, or as injunctive relief awarded
in any other action in any forum;
c. that the SEPs are not projects that Defendant was planning or
intending to construct, perform, or implement other than in settlement of the claims resolved in
this Decree;
d. that Defendant has not received and will not receive credit for the
SEPs in any other enforcement action; and
e. that Defendant will not receive any reimbursement for any portion
of the SEPs from any other person.
35. SEP Completion Report
a. Within 30 Days after the date set for completion of all SEPs
identified in Appendix A, except the Reverse 911 SEP, Defendant shall submit a SEP
Completion Report to the United States and the State, in accordance with Section XV of this
Consent Decree (Notices). Within 30 Days after the date set for completion of the Reverse 911
SEP, identified in Appendix A, Paragraph 5, Defendant shall submit a SEP Completion Report to
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the United States and the State in accordance with Section XV of this Consent Decree. The SEP
Completion Reports shall contain the following information:
i. a detailed description of the SEP as implemented;
ii. a description of any problems encountered in completing
the SEP and the solutions thereto;
iii. an itemized list of all eligible SEP costs expended;
iv. certification that each SEP has been fully implemented
pursuant to the provisions of this Decree; and
v. a description of the environmental and public health
benefits resulting from implementation of the SEPs (with a
quantification of the benefits and pollutant reductions, if
feasible).
36. EPA may, in its sole discretion, require information in addition to that
described in the preceding Paragraph, in order to evaluate Defendant's completion report.
37. After receiving the SEP Completion Report, and consulting the State, the United
States shall notify Defendant whether or not Defendant has satisfactorily completed the SEPs. If
Defendant has not completed the SEPs in accordance with this Consent Decree, stipulated
penalties may be assessed under Section IX of this Consent Decree. Unless the United States has
notified Defendant that it contends that Defendant has not satisfactorily completed all SEPs, the
stipulated penalties associated with that failure will cease to accrue after sixty (60) Days after the
receipt of the Completion Report. However, stipulated penalties will continue to accrue once the
United States provides such notice.
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38. Disputes concerning the satisfactory performance of the SEPs and the
amount of eligible SEP costs may be resolved under Section XI of this Decree (Dispute
Resolution). No other disputes arising under this Section shall be subject to Dispute Resolution.
39. Each submission required under this Section shall be signed by an official
with knowledge of the SEP and shall bear the certification language set forth in Paragraph 44.
40. Any public statement, oral or written, in print, film, or other media, made
by Defendant making reference to the SEP under this Decree shall include the following
language: "This project was undertaken in connection with the settlement of an enforcement
action, United States v. NCRA, taken on behalf of the U.S. Environmental Protection Agency
under the Clean Air Act, Comprehensive Environmental Response, Compensation, and Liability
Act, and/or the Emergency Planning and Community Right to Know Act."
41. For federal income tax purposes, Defendant agrees that it will neither
capitalize into inventory or basis nor deduct any costs or expenditures incurred in performing the
SEPs.
VIII. REPORTING REQUIREMENTS
42. Defendant shall submit the following reports:
a. Within thirty (30) calendar Days after the end of the first semi-
annual period after lodging of the Consent Decree (i.e., January 31 or July 31), and on each
subsequent January 31 and July 31 thereafter, until termination of this Decree pursuant to
Section XIX, Defendant shall submit to EPA and the State a semi-annual report for the preceding
six month period that shall include:
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Paragraph 13;
Paragraph 14;
i. The status of permit applications/modifications pursuant to
ii. The date of the latest training conducted pursuant to
iii. A description of any problems anticipated with respect to
meeting the requirements of this Decree together with implemented or proposed solutions;
iv. A description of all Supplemental Environmental Projects
and implementation activity in accordance with this Decree, including, at a minimum, a narrative
description of activities undertaken; status of any construction or compliance measures,
including the completion of any milestones set forth in the SEP Work Plan attached as Appendix
A to this Decree, and a summary of costs incurred since the previous report;
v. Any such additional matters as Defendant believes should
be brought to the attention of the United States and the State of Kansas; and
vi. Any additional items required by any other Paragraph of
this Consent Decree to be submitted with a semi-annual report including but not limited to
reports required under Paragraphs 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, and 30.
vii. The report shall also include a description of any non-
compliance with the requirements of this Consent Decree and 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 Defendant violates, or has reason to believe that it may violate, any requirement of
this Consent Decree, Defendant shall notify the United States and the State of such violation and
its likely duration, in writing, within ten working Days of the Day Defendant first becomes
aware of the violation, with an explanation of the violation's likely cause and of the remedial 31
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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 of the violation. Nothing in this Paragraph or the
following Paragraph relieves Defendant of its obligation to provide the notice required by
Section X of this Consent Decree (Force Majeure).
43. All reports shall be submitted to the persons designated in Section XV of
this Consent Decree (Notices).
44. Each report submitted by Defendant under this Section shall be signed by
an official of the submitting party and include the following certification:
I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted, Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.
This certification requirement does not apply to emergency or similar notifications where
compliance would be impractical.
45. The reporting requirements of this Consent Decree do not relieve
Defendant of any reporting obligations required by the CAA, EPCRA and/or CERCLA or
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implementing regulations, or by any other federal, state, or local law, regulation, permit, or other
requirement.
46. 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.
47. If Defendant submits a report that fails to contain the information required
by this Decree, within 30 Days of notification by EPA, Defendant shall correct all deficiencies
and resubmit the report.
IX. STIPULATED PENALTIES
48. Defendant shall be liable for stipulated penalties to the United States and
the State (as applicable) for violations of this Consent Decree as specified below, unless excused
under Section X (Force Majeure). A violation includes failing to perform any obligation
required by the terms of this Decree, including any work plan or schedule approved under this
Decree, according to all applicable requirements of this Decree and within the specified time
schedules established by or approved under this Decree.
49. Late Payment of Civil Penalty
If Defendant fails to pay the civil penalty required to be paid under Section V of
this Decree (Civil Penalty) when due, Defendant shall pay a stipulated penalty of $1,500 per Day
for each Day that the payment is late. Stipulated penalties assessed under this Paragraph shall be
paid 50% to the United States and 50% to the State of Kansas.
50. Compliance Milestones
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a. Non-Compliance with Unicracker Unit Heater Requirements.
Defendant shall be liable for stipulated penalties in the amount set forth below, for failure to
timely and adequately comply with the requirements of Paragraph 13:
Penalty Per Violation Per Day Period of Noncompliance
$ 500 1st through 30th Day
$2,500 31st Day and beyond
Stipulated penalties assessed under this Paragraph shall be apportioned 50% to the United States
and 50% to the State of Kansas.
b. Non-Compliance with Unicracker Flaring Requirements. Defendant
shall be liable for stipulated penalties in the amount set forth below, for failure to timely and
adequately comply with the requirements of Paragraph 14:
Penalty Per Violation Per Day Period of Noncompliance
$ 500 1st through 30th Day
$2,500 31st Day and beyond
Stipulated penalties assessed under this Paragraph shall be apportioned 50% to the United States
and 50% to the State of Kansas.
c. Non-Compliance with Requirements for Risk Management Program.
Defendant shall be liable for stipulated penalties to the United States in the amount set forth
below, for failure to timely and adequately comply with the requirements , of Paragraphs 15 and
21 through 30:
Penalty Per Violation Per Day Period of Noncompliance
$ 750 1st through 30th Day
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$2,500 31st Day and beyond
d. Failure To Conduct CERCLA/EPCRA Reporting Compliance
Review. Defendant shall be liable for stipulated penalties to the United States in the amount set
forth below, for failure to timely and adequately comply with the requirements of Paragraph 18.
Penalty Per Violation Per Day Period of Noncompliance
$ 500 1st through 30th Day
$2,500 31st Day and beyond
e. Failure To Perform CERCLA/EPCRA Continuous Release Review.
Defendant shall be liable for stipulated penalties to the United States in the amount set forth
below, for failure to timely and adequately comply with the requirements of Paragraph 19:
Penalty Per Violation Per Day Period of Noncompliance
$ 500 1st through 30th Day
$2,500 31st Day and beyond
f. Failure To Perform EPCRA 312 and 313 Audit. Defendant shall be
liable for stipulated penalties to the United States in the amount set forth below, for failure to
timely and adequately comply with the requirements of Paragraphs 16 and 17:
Penalty Per Violation Per Day Period of Noncompliance
$ 500 1st through 30th Day
$2,500 31st Day and beyond
g. Failure To Submit Payment of Tier II fees. Defendant shall be liable
for stipulated penalties to the United States in the amount set forth below, for failure to timely
and adequately comply with the requirements of Paragraph 20:
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Penalty Per Violation Per Day Period of Noncompliance
$ 250 1st through 30th Day
$1,000 31st Day and beyond
51. Reporting Requirements. Defendant shall be liable for stipulated penalties
to the United States in the amount set forth below, for failure to timely and adequately comply
with the reporting requirements of Section VIII of this Consent Decree:
Penalty Per Violation Per Day Period of Noncompliance
$ 500 1st through 30th Day
$2,500 31st Day and beyond
52. SEP Compliance
a. If Defendant fails to satisfactorily complete any SEP by the
deadlines set forth in Appendix A, Defendant shall pay stipulated penalties to the United States
for each day for which it fails to satisfactorily complete that SEP, as follows:
Penalty Per Violation Per Day Period of Noncompliance
$400 1st through 30th Day
$1,000 31st Day and beyond
b. If Defendant halts or abandons payment or delivery of any SEP,
Defendant shall pay a stipulated penalty to the United States equal to the estimated cost of the
SEP reflected in Appendix A.
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c. If Defendant fails to comply with the milestone in Appendix A to
this Consent Decree for initiation of Reverse 911 coverage, Defendant shall pay stipulated
penalties to the United States for each failure to meet an applicable deadline, as follows:
Penalty Per Violation Per Day Period of Noncompliance
$150 1st through 30th Day
$500 31st Day and beyond
53. Except as provided in subparagraphs 53.b, 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.
54. Non-Compliance with Any Decree Requirement Not Specifically
Identified in Section IX. For any term, condition or requirement of this Decree for which a
specific penalty is not provided in Section IX, Defendant shall pay stipulated penalties to the
United States in the amount of $400 per Day, per violation.
55. Defendant shall pay any stipulated penalty within 30 Days of receiving the
United States' written demand.
56. Either Plaintiff may in the unreviewable exercise of its discretion, reduce
or waive stipulated penalties otherwise due it under this Consent Decree.
57. Stipulated penalties shall continue to accrue as provided in Paragraph 55,
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 EPA or
the State that is not appealed to the Court, Defendant shall pay accrued penalties determined to
be owing, together with interest, to the United States or the State, as applicable, within 30 Days
of the effective date of the agreement or the receipt of EPA's or the State's decision or order.
b. If the dispute is appealed to the Court and the United States, or the
State, as applicable, prevails in whole or in part, Defendant shall pay all accrued penalties
determined by the Court to be owing, together with interest, 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 determined to be owing, together with interest, within 15 Days of
receiving the final appellate court decision.
58. Defendant shall pay stipulated penalties owing to the United States or the
State in the manner set forth and with the confirmation notices required by Paragraphs 10 and 11,
respectively, except that the transmittal letter shall state that the payment is for stipulated
penalties and shall state for which violation(s) the penalties are being paid.
59. If Defendant fails to pay stipulated penalties according to the terms of this
Consent Decree, Defendant shall be liable for interest on such penalties, as provided for in
28 U.S.C. § 1961, accruing as of the date payment became due. Nothing in this Paragraph shall
be construed to limit the United States or the State from seeking any remedy otherwise provided
by law for Defendant's failure to pay any stipulated penalties.
60. Subject to the provisions of Section XIII of this Consent Decree (Effect of
Settlement/Reservation of Rights), the stipulated penalties provided for in this Consent Decree
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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. Where a violation of this
Consent Decree is also a violation of relevant statutory or regulatory requirements, Defendant
shall be allowed a credit, for any stipulated penalties paid, against any statutory penalties
imposed for such violation.
X. FORCE MAJEURE
61. "Force Majeure," for purposes of this Consent Decree, is defined as any
event arising from causes beyond the control of Defendant, of any entity controlled by
Defendant, or of Defendant's contractors, that delays or prevents the performance of any
obligation under this Consent Decree despite Defendant's best efforts to fulfill the obligation.
The requirement that Defendant exercise "best efforts to fulfill the obligation" includes using best
efforts to anticipate any potential Force Majeure event and best efforts to address 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. "Force Majeure" does not include Defendant's
financial inability to perform any obligation under this Consent Decree.
62. If any event occurs or has occurred that may delay the performance of any
obligation under this Consent Decree, whether or not caused by a Force Majeure event,
Defendant shall provide notice orally or by electronic or facsimile transmission, pursuant to
Paragraph 89, within seven (7) Days of when Defendant first knew that the event might cause a
delay. Within fourteen (14) Days thereafter, Defendant shall provide in writing to EPA and the
State an explanation and description of the reasons for the delay; the anticipated duration of the
delay; all actions taken or to be taken to prevent or minimize the delay; a schedule for
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implementation of any measures to be taken to prevent or mitigate the delay or the effect of the
delay; Defendant's rationale for attributing such delay to a Force Majeure event if it intends to
assert such a claim; and a statement as to whether, in the opinion of Defendant, such event may
cause or contribute to an endangerment to public health, welfare or the environment. Defendant
shall include with any notice all available documentation supporting the claim that the delay was
attributable to a Force Majeure. Failure to comply with the above requirements shall preclude
Defendant from asserting any claim of Force Majeure for that event for the period of time of
such failure to comply, and for any additional delay caused by such failure. Defendant shall be
deemed to know of any circumstance of which Defendant, any entity controlled by Defendant, or
Defendant's contractors knew or should have known.
63. If EPA agrees that the delay or anticipated delay is attributable to a Force
Majeure event, the time for performance of the obligations under this Consent Decree that are
affected by the Force Majeure event will be extended by EPA for such time as is necessary to
complete those obligations. To the extent that the alleged Force Majeure event relates to
obligations under Paragraphs 13 (Unicracker Heater Requirements) and 14 (Unicracker Flaring
Requirements), if EPA agrees, after a reasonable opportunity for review and comment by the
State, that the delay or anticipated delay is attributable to a Force Majeure event, the time for
performance of the obligations under this Consent Decree that are affected by the Force Majeure
event will be extended by EPA, after a reasonable opportunity for review and comment by the
State, for such time as is necessary to complete those obligations.
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a. An extension of the time for performance of the obligations
affected by the Force Majeure event shall not, of itself, extend the time for performance of any
other obligation.
b. EPA will notify Defendant in writing of the length of the
extension, if any, for performance of the obligations affected by the Force Majeure event.
64. If EPA does not agree that the delay or anticipated delay has been or will
be caused by a Force Majeure event, EPA will notify Defendant in writing of its decision. To the
extent that the alleged Force Majeure event relates to obligations under Paragraphs 13
(Unicracker Heater Requirements) and 14 (Unicracker Flaring Requirements), if EPA does not
agree, after a reasonable opportunity for review and comment by the State, that the delay or
anticipated delay is attributable to a Force Majeure event, EPA will notify Defendant in writing
of its decision.
65. If Defendant elects to invoke the dispute resolution procedures set forth in
Section XI (Dispute Resolution), it shall do so no later than 15 Days after receipt of EPA's
notice. In any such proceeding, Defendant shall have the burden of demonstrating by a
preponderance of the evidence that the delay or anticipated delay has been or will be caused by a
Force Majeure event, that the duration of the delay or the extension sought was or will be
warranted under the circumstances, that best efforts were exercised to avoid and mitigate the
effects of the delay, and that Defendant complied with the requirements of Paragraphs 61 and 62,
above. If Defendant carries this burden, the delay at issue shall be deemed not to be a violation
by Defendant of the affected obligation of this Consent Decree identified to EPA and the Court.
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XI. DISPUTE RESOLUTION
66. 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.
67. Informal Dispute Resolution. Any dispute subject.to Dispute Resolution
under this Consent Decree shall first be the subject of informal negotiations. The dispute shall
be considered to have arisen when Defendant sends the United States a written Notice of
Dispute. Such Notice of Dispute shall state clearly the matter in dispute. The period of informal
negotiations shall not exceed 20 Days from the date the dispute arises, unless that period is
modified by written agreement. If the Parties cannot resolve a dispute by informal negotiations,
then the position advanced by the United States shall be considered binding unless, within 20
Days after the conclusion of the informal negotiation period, Defendant invokes formal dispute
resolution procedures as set forth below.
68. Formal Dispute Resolution. Defendant shall invoke formal dispute resolu-
tion procedures, within the time period provided in the preceding Paragraph, by serving on the
United States a written Statement of Position regarding the matter in dispute. The Statement of
Position shall include, but need not be limited to, any factual data, analysis, or opinion
supporting Defendant's position and any supporting documentation relied upon by Defendant.
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