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United States v. Nevada Cement Co.

United States District Court, D. Nevada

October 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NEVADA CEMENT COMPANY Defendant.

          FOR PLAINTIFF UNITED STATES OF AMERICA: BRUCE S. GELBER Deputy Assistant Attorney General Environment and Natural Resources Division United States Department of Justice. DAVID L. McILWAIN Trial Attorney Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice.

          FOR PLAINTIFF UNITED STATES OF AMERICA: STEVEN W. MYHRE Acting United States Attorney District of Nevada GREG ADDINGTON Assistant United States Attorney.

          FOR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY: LAWRENCE E. STARFIELD Acting Assistant Administrator Office of Enforcement and Compliance Assurance United States Environmental Protection Agency SUSAN SHINKMAN Director, Office of Civil Enforcement United States Environmental Protection Agency PHILLIP A, BROOKS Director, Air Enforcement Division Office of Enforcement and Compliance Assurance United States Environmental Protection Agency ROBERT G. KLEPP Attorney, Air Enforcement Division Office of Enforcement and Compliance Assurance United States Environmental Protection Agency.

          FOR THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGION 9: ALEXIS STRAUSS Acting Regional Administrator U.S. Environmental Protection Agency, Region 9 IVAN LIEBEN Attorney Office of Regional Counsel DAVID KIM Attorney Office of Regional Counsel.

          FOR DEFENDANT NEVADA CEMENT COMPANY: Joseph P. Sells President Nevada Cement Company.

          CONSENT DECREE

         TABLE OF CONTENTS

         SECTION I: JURISDICTION AND VENUE......................................................... 3

         SECTION II: APPLICABILITY.............................................................4

         SECTION III: DEFINITIONS..............................................................6

         SECTION IV: CIVIL PENALTY................................................................................................13

         SECTION V: NOX CONTROL TECHNOLOGY, EMISSION LIMITS AND

         MONITORING REQUIREMENTS..................................................................................14

         A. NOx Control Technology and Emission Limits....................................................14

         B. NOx and Ammonia Continuous Emission Monitoring Systems................. 16

         SECTION VI: SO2 EMISSION LIMITS AND MONITORING REQUIREMENTS................17

         A. SO2 Emission Limits.............................................................................................17

         B. SO2 Continuous Emission Monitoring Systems.................... 17

         SECTION VII: OTHER INJUNCTIVE RELIEF.......................................................................18

         SECTION VIII: TEMPORARY CESSATION OF KILN OPERATION.................... ...........20

         SECTION IX: PROHIBITION ON NETTING CREDITS OR OFFSETS FROM REQUIRED CONTROLS............................................... 22

         SECTION X: PERMITS........................................................................................................23

         SECTION XI: REVIEW AND APPROVAL OF SUBMITTALS......................................26

         SECTION XII: REPORTING REQUIREMENTS.......................... 27

         SECTION XIII: STIPULATED PENALTIES...........................................31

         SECTION XIV: FORCE MAJEURE....................................................36

         SECTION XV: DISPUTE RESOLUTION............................................................38

         SECTION XVI: INFORMATION COLLECTION AND RETENTION ....................44

         SECTION XVII: EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS .....................46

         SECTION XVIII: COSTS............................................... 48

         SECTION XIX: NOTICES.............................................................................. 48

         SECTION XX: EFFECTIVE DATE........................................... ..................................50

         SECTION XXI: RETENTION OF JURISDICTION........................... 50

         SECTION XXII: MODIFICATION................................ 50

         SECTION XXIII: TERMINATION............................................................51

         SECTION XXIV: PUBLIC PARTICIPATION................................... .............52

         SECTION XXV: SIGNATORIES/SERVICE/ANSWER.......................52

         SECTION XXVI: INTEGRATION...................................... 53

         SECTION XXVII: FINAL JUDGMENT.......................................................... 53

         SECTION XXVIII: APPENDICES.............................................53

         SECTION XXIX: HEADINGS........................................... ...............................54

         WHEREAS, Plaintiff, the United States of America, on behalf of the United States Environmental Protection Agency (herein "U.S. EPA" or "EPA") has, simultaneously with the lodging of this Consent Decree, filed a Complaint against Defendant Nevada Cement Company ("Defendant" or "Nevada Cement Company"), pursuant to Sections 113(b) and 167 of the Clean Air Act ("Clean Air Act or Act"), 42 U.S.C. §§ 7413(b) and 7477, for injunctive relief and the assessment of civil penalties for violations of the following statutory and regulatory requirements of the Act at the Defendant's Portland cement plant located in Fernley, Nevada: the Prevention of Significant Deterioration ("PSD") provisions of the Act, Sections 160-169, 42 U.S.C. §§ 7470-7492; the New Source Performance Standards ("NSPS") provisions of the Act, Section 111, 42 U.S.C. § 7411; and the federally-approved and enforceable state implementation plan ("SIP"), which incorporate and/or implement the above-listed federal PSD requirements;

         WHEREAS, this Consent Decree sets forth injunctive relief in which Defendant has agreed to substantially reduce its emissions of nitrogen oxide and limit its emissions of sulfur dioxide in such a manner that would resolve Defendant's alleged violations of the PSD and NSPS requirements of the Act;

         WHEREAS, U.S. EPA has provided notice of the violations alleged herein to the Defendant and to the State of Nevada where Defendant's Facility is located, pursuant to Section 113(a) of the Act, 42 U.S.C. § 7413(a), and Defendant stipulates that it has received actual notice of the violations alleged in the Complaint and that it does not contest the adequacy of the notice provided;

         WHEREAS, Defendant denies the allegations of the Complaint and does not admit that it has any liability to the United States for civil penalties or injunctive relief arising out of the transactions and occurrences alleged in the Complaint;

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

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

         SECTION I: JURISDICTION AND VENUE

         1. This Court has jurisdiction of the subject matter herein and over the Parties consenting hereto pursuant to Sections 113(b), 167, and 304(a) of the Act, 42 U.S.C. §§ 7413(b), 7477, and 7604(a), and pursuant to 28 U.S.C. §§ 1331, 1345, 1355 and 1367(a). Venue is proper under Sections 113(b) and 304(c) of the Act, 42 U.S.C. §§ 7413(b) and 7604(c), and under 28 U.S.C. §§ 1391(b) and (c) and 1395(a). For purposes of this Consent Decree and the underlying Complaint, Defendant waives all objections and defenses it may have to the Court's jurisdiction over this action, to the Court's jurisdiction over the Defendant, and to venue in this District. For the purposes of the allegations in the Complaint in this matter that are being resolved by the Consent Decree, Defendant waives any defense or objection based on standing.

         2. For purposes of this Consent Decree, Defendant agrees that the Complaint states claims upon which relief may be granted pursuant to Sections 113, 165 and 167 of the Act, 42 U.S.C. §§7413, 7475 and 7477.

         SECTION II: APPLICABILITY

         3. The obligations of this Consent Decree apply to and are binding upon the United States and upon the Defendant, and any successors, assigns, or other entities or persons otherwise bound by law.

         4. At least 30 Days prior to any transfer of ownership or operation of the Facility, Defendant shall provide a copy of this Consent Decree to the proposed transferee and, by the same deadline, shall simultaneously provide written notice of the prospective transfer, together with a copy of the proposed written agreement to transfer ownership of the Facility, to U.S. EPA and the United States in accordance with Section XIX (Notices) of this Consent Decree. 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 Decree are implemented, unless:

a. the transferee agrees, in writing, to undertake the obligations required by Sections V (NOx Control Technology, Emission Limits, and Monitoring Requirements), VI (SO2 Emission Limits and Monitoring Requirements), VII (Other Injunctive Relief), VIII (Temporary Cessation of Kiln Operations), IX (Prohibition on Netting Credits or Offsets from Required Controls), X (Permits), XI (Review and Approval of Submittals), XII (Reporting Requirements), XIII (Stipulated Penalties), XIV (Force Majeure), XV (Dispute Resolution), XVI (Information Collection and Retention) and the requirements of Appendices A and B of this Consent Decree applicable to the Facility or Kilns and further agrees in writing to be substituted for the Defendant as a Party under the Decree with respect to Facility or Kilns and thus become bound by the terms thereof;
b. the United States determines that the transferee has the financial and technical ability to assume the Consent Decree's obligations applicable to such Facility or Kilns;
c. the United States consents, in writing, to relieve Defendant of its Consent Decree obligations applicable to the Facility or Kilns; and
d. the Court approves the transferee becoming a party to this Consent Decree with respect to the transferred Facility or Kilns, pursuant to Section XXII (Modification).

         5. Any transfer of ownership or operation of the Facility or Kilns, or any portion thereof, without complying with Paragraph 4, constitutes a violation of this Consent Decree.

         6. The 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.

         7. 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.

         SECTION III: DEFINITIONS

         8. Terms used in this Consent Decree that are defined in the Act or in regulations promulgated by U.S. EPA pursuant to the Act shall have the meanings assigned to them in the Act or such regulations, unless otherwise provided in this Consent Decree. Definitions stated in this Consent Decree are exclusively for the purpose of interpreting and applying the Consent Decree terms and are not intended to establish any type of determination under circumstances not covered by the Consent Decree. Whenever the terms set forth below are used in this Consent Decree, the following definitions shall apply:

a. "30-Day Rolling Average Emission Limit" shall mean, with respect to the Kilns, the maximum allowable rate of emission of a specified air pollutant from such Kiln and shall be expressed as pounds (lbs.) of such air pollutant emitted per Ton of clinker produced. Compliance with the 30-Day Rolling Average Emission Limit shall be determined in accordance with the definition of 30-Day Rolling Average Emission Rate. A new compliance determination of the 30-Day Rolling Average Emission Limit shall be calculated for each new Operating Day in accordance with the provisions of this Consent Decree. In calculating each compliance determination of the 30-Day Rolling Average Emission Limit in accordance with this Paragraph 8.a, for NOx or SO2 at the Kilns, the total pounds of such air pollutant emitted from the Kiln during a specified period (Operating Day or 30-Day Period) shall include all emissions of that pollutant from the subject Kiln that occur during the specified period;
b. "30-Day Rolling Average Emission Rate" shall mean, with respect to the Kilns, the rate of emission of a specified air pollutant from such Kiln and shall be expressed as pounds (lbs.) of such air pollutant emitted per Ton of clinker produced. Compliance with the 30-Day Rolling Average Emission Limit shall be determined by calculation of a 30-Day Rolling Average Emission Rate in accordance with the following procedure: first, sum the total pounds of the air pollutant in question emitted from the Kiln during that Operating Day and the previous twenty-nine (29) Operating Days as measured pursuant to Section V.B. (NOx and Ammonia Continuous Emission Monitoring Systems), or Section VLB. (SO2 Continuous Emission Monitoring Systems), as applicable; second, sum the total Tons of clinker produced by the Kiln during the same Operating Day and previous 29 Operating Days; and third, divide the total number of pounds of the air pollutant emitted from the Kiln during the thirty (30) Operating Days by the total Tons of clinker produced by such Kiln during the same 30 Operating Days. A new compliance determination of the 30-Day Rolling Average Emission Rate shall be calculated for each new Operating Day in accordance with the provisions of this Consent Decree. In calculating each 30-Day Rolling Average Emission Rate in accordance with this Paragraph 8.b, for NOx or SO2 at the Kilns, the total pounds of such air pollutant emitted from the Kiln during a specified period (Operating Day or 30-Day Period) shall include all emissions of that pollutant from the subject Kiln that occur during the specified period;
c. "Ammonia CEMS" shall mean, for obligations involving ammonia under this Consent Decree, the total equipment and software required to sample, analyze, and to provide a record of ammonia concentration and the raw data necessary to support the reported emissions;
d. "Ammonia Slip" shall mean the amount of unreacted ammonia contained in emissions from Defendant's Kilns. Ammonia Slip shall be calculated by subtracting Baseline Ammonia from Stack Ammonia;
e. "Baseline NOx Emissions" shall mean the average (arithmetic mean) of all daily emissions of NOx from each Kiln during the Baseline Collection Period consistent with Appendix A and shall be based upon an analysis of CEMS data and clinker production data from each Kiln;
f. "Baseline Ammonia" shall mean the average (arithmetic mean) of all daily average ammonia concentrations from each Kiln during the Baseline Collection Period consistent with Appendix A and shall be based upon an analysis of CEMS data from each Kiln. Baseline Ammonia shall reflect Ammonia measured by the Ammonia CEMS only during periods of time when the SNCR is not injecting any reagent into the Kilns;
g. "Business Day" means any Day, except for Saturday, Sunday, and federal holidays. In computing any period of time used as a deadline for submission under this Consent Decree, where the last Day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next Business Day;
h. "CEMS" or "Continuous Emission Monitoring System" shall mean, for obligations involving NOx and SO2 under this Consent Decree, the total equipment and software required to sample and condition (if applicable), to analyze, and to provide a record of NOx and SO2 emission rates, and the raw data necessary to support the reported emission rates, and that have been installed, calibrated and certified in accordance with 40 C.F.R. § 60.13 and 40 C.F.R. Part 60 Appendix B and Appendix F;
i. "Commence" or "Commencement" of operation of a Control Technology shall mean to begin the introduction of the reagent employed by the Control Technology, as applicable to that technology, or where the technology is otherwise activated;
j. "Complaint" shall mean the complaint filed by the United States in this action;
k. "Consent Decree" or "Decree" shall mean this Consent Decree and each Appendix attached hereto (listed in Section XXVIII (Appendices)), but in the event of any conflict between the text of this Consent Decree and any Appendix, the text of this Consent Decree shall control;
l. "Continuously Operate" or "Continuous Operation" shall mean that when a Control Technology required by this Consent Decree is used at a Kiln, it shall be operated at all times of Kiln Operation, consistent with the technological limitations, manufacturers' specifications, and good engineering and maintenance practices for such Control Technology and the Kiln. A SNCR that is injecting no reagent is not Continuously Operating; however, the requirement to continuously operate SNCR does not require that the SNCR be operated under conditions where the Kiln has not reached or is no longer maintaining the minimum temperature for reagent injection. This Paragraph is not intended to require any minimum level of reagent injection after the 30-Day Rolling Average Emission Limit has been established in accordance with Paragraph 8.a;
m. "Contractor" shall mean any person or entity hired by Defendant to perform services on its behalf necessary to comply with the provisions of this Consent Decree;
n. "Control Technology" or "NOx Control Technology" shall mean Selective Non-Catalytic Reduction or Low-NOx Burner technology;
o. "Date of Lodging of the Consent Decree" or "Date of Lodging" shall mean the date the Consent Decree is filed for lodging with the Clerk of the Court for the United States District Court for the District of Nevada;
p. "Day" shall mean a calendar day unless expressly stated to be a Business Day;
q. "Defendant" or "Nevada Cement" shall mean Nevada Cement Company;
r. "Effective Date" shall have the meaning given in Paragraph 98;
s. "Facility" shall mean the Defendant's Portland cement manufacturing plant located just north of Interstate Highway 80 near Fernley, Nevada;
t. "Kiln" as used in this Consent Decree shall mean each device located at the Facility, including any associated preheater devices, that produces clinker by heating limestone and other materials for subsequent production of Portland cement. The two Kilns at the Facility are designated Kiln #1, which is a long dry rotary kiln, and Kiln #2, which is a long dry rotary kiln with a single-stage preheater;
u. "Kiln Operation" shall mean any period when any raw materials are fed into the Kiln or any combustion is occurring in the Kiln;
v. "Low-NOx Burner" or "LNB" shall mean commercially available combustion modification NOx controls that minimize NOx formation by introducing fuel and its associated combustion air into a kiln such that initial combustion occurs in a fuel-rich (i.e., oxygen deficient) environment and introduces additional air to achieve a final fuel-lean (i.e., oxygen rich) environment to complete the combustion process;
w. "Malfunction" shall mean any sudden, infrequent, and not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner. Failures that are caused in part by poor maintenance or careless operation are not malfunctions;
x. "National Ambient Air Quality Standards" or "NAAQS" shall mean national ambient air quality standards that are promulgated pursuant to Section 109 of the Act, 42 U.S.C. § 7409;
y. "New Source Performance Standards" or "NSPS" shall mean those standards and emission limitations applicable to the emissions of NOx, and SO2, from existing, modified or reconstructed Portland cement manufacturing facilities, codified at 40 C.F.R. Part 60, Subpart F;
z. "NOx" shall mean oxides of nitrogen, measured in accordance with the provisions of this Consent Decree;
aa. "Operating Day" shall mean any day in which Kiln Operation has occurred;
bb. "Paragraph" shall mean a portion of this Consent Decree identified by an Arabic numeral;
cc. "Parties" shall mean the United States and Nevada Cement Company;
dd. "PSD" shall mean the Prevention of Significant Deterioration program within the meaning of Part C of Subchapter I of the Act, 42 U.S.C. §§ 7470-7492, 40 C.F.R. Part 52, and Nevada's State Implementation Plan implementing the PSD requirements;
ee. "Retire" or "Retirement" shall mean, with respect to any Kiln, (1) to permanently Shutdown the Kiln; and (2) to comply with applicable State and federal requirements for permanent cessation of Kiln operations, including submitting an application in accordance with the Nevada SIP to remove permanently any legal authorization under applicable regulations or permits for further operation of the Kiln;
ff. "Section" shall mean a portion of this Consent Decree identified by a Roman numeral;
gg. "Selective Non-Catalytic Reduction" or "SNCR" shall mean a pollution control system that injects an ammonia-based reagent into the gas stream without the use of a catalyst for the purpose of reducing NOx emissions;
hh. "Shutdown" shall mean the cessation of Kiln Operation. Shutdown begins when feed to the Kiln is halted and ends when continuous Kiln rotation ceases;
ii. "SNCR Demonstration Period" shall mean that period of time identified in Appendix A, following optimization, and at the conclusion of which, Defendant will propose a 30-Day Rolling Average Emission Limit for NOx for each Kiln that is achievable through the implementation of SNCR, and that will be applied in accordance with Section V (NOx Control Technology, Emission Limits, and Monitoring Requirements) of this Consent Decree;
jj. "SO2" shall mean the pollutant sulfur dioxide, measured in accordance with the provisions of this Consent Decree;
kk. "Stack Ammonia" shall mean the concentration of ammonia in emissions from the Defendant's Kilns as measured by the Ammonia CEMS during the period when an SNCR is operational for that Kiln. Stack Ammonia is not, without subtraction of Baseline Ammonia, considered Ammonia Slip;
ll. "Startup" shall mean the time from when a Shutdown Kiln turns on the induced draft fan and begins firing fuel in the main burner. Startup ends when feed is being continuously introduced into the Kiln for at least 120 minutes or when the feed rate exceeds 60 percent of the Kiln design limitation rate, whichever occurs first;
mm. "State" shall mean the State of Nevada, and any agencies or subdivisions having jurisdiction over the Facility, including the Nevada Division of Environmental Protection ("NDEP");
nn. "Temporary Cessation, " "Temporary Cessation of Kiln Operation" or "Temporarily Cease Kiln Operation" shall mean the period when a Kiln is not in a state of Kiln Operation and Defendant has provided the required notice pursuant to Paragraph 35 of Section VIII (Temporary Cessation of Kiln Operation) of this Consent Decree;
oo. "Ton" or "Tons" shall mean short ton or short tons; pp. "United States" shall mean the United States of America, acting on behalf of U.S. EPA; and
qq. "U.S. EPA" shall mean the United States Environmental Protection Agency and any of its successor departments or agencies.

         SECTION IV; CIVIL PENALTY

         9. Within thirty (30) Days after the Effective Date of this Consent Decree, Defendant shall pay to the United States as a civil penalty the sum of $550, 000, together with interest accruing from the date that the Consent Decree is lodged with the Court, at the rate specified in 28 U.S.C. § 1961 as of the date of lodging. Defendant shall pay the civil penalty due under this Paragraph 9 by FedWire Electronic Funds Transfer ("EFT") to the U.S. Department of Justice in accordance with written instructions to be provided to Defendant following lodging of the Consent Decree by the Financial Litigation Unit of the U.S. Attorney's Office for the District of Nevada, 333 Las Vegas Blvd, Suite 5000, Las Vegas, Nevada, 89101. 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 v. Nevada Cement Company, and shall reference the civil action number and DOJ case number 90-5-2-1-10458, to the United States in accordance with Section XIX of this Consent Decree (Notices); by email to acctsreceivable.CINWD@epa.gov; and to:

U.S. EPA Cincinnati Finance Office 26 Martin Luther King Drive Cincinnati, Ohio 45268.

         10. Defendant shall not deduct any penalties paid under this Section or Section XIII (Stipulated Penalties) in calculating its federal or state or local income tax.

         SECTION V: NO, CONTROL TECHNOLOGY. EMISSION LIMITS AND MONITORING REQUIREMENTS

         A. NOx Control Technology and Emission Limits

         11. Defendant shall install and Continuously Operate SNCR Control Technology on each Kiln to reduce NOx emissions in accordance with the timeframes and requirements set forth in Section III of Appendix A.

         12. Defendant shall comply with all terms and conditions, including drafting submittals and complying with protocols set forth in Appendix A, to establish 30-Day Rolling Average Emission Limits for NOx applicable to each Kiln.

         13. Within 30 Days after approval, conditional approval, or partial approval by U.S. EPA pursuant to Section XI (Review and Approval of Submittals) of any final 30-Day Rolling Average Emission Limit for NOx established pursuant to Appendix A, Defendant shall achieve and maintain continuous compliance with such 30-Day Rolling Average Emission Limit for NOx. If the 30-day Rolling Average Emission Limit for NOx is challenged pursuant to the Dispute Resolution provisions of Section XV (Dispute Resolution), the final NOx Limit shall be the 30-Day Rolling Average agreed to by the Parties at the conclusion of Informal Dispute Resolution. If Informal Dispute Resolution does not resolve the dispute, Defendant shall comply with its Proposed final NOx Emissions Limit until a final NOx Emissions Limit is determined by the Court.

         14. If the final 30-Day Rolling Average Emission Limit for NOx as determined in Appendix A.IV.7.d is less than a 40% reduction in Baseline NOx Emissions of the applicable Kiln, the United States may demand that Defendant install a Low NOx Burner on such Kiln. The United States will make this demand within 180 days of receipt of the Demonstration Report.

         15. If the United States demands that Defendant install a Low NOx Burner on either Kiln pursuant to Paragraph 14, Defendant shall install a Low NOx Burner within 24 months of such demand and comply with Appendix A, Section V of this Consent Decree. Following the installation of a Low NOx Burner on a Kiln, the Defendant shall commence complying with the terms of Appendix A, Section V to establish a new 30-Day Rolling Average Emissions Limit applicable to such Kiln while operating Low NOx Burner and SNCR.

         16. Upon submittal to EPA as part of a SNCR Demonstration Report of a proposed 30 Day Rolling Average Emission Limit for NOx for a particular Kiln pursuant to Appendix A, Defendant shall meet the proposed Limit for that Kiln until such time as final 30-Day Rolling Average Limit is established pursuant to Paragraph 13.

         B. NOx and Ammonia Continuous Emission Monitoring Systems

         17. By no later than December 31, 2017, Defendant shall install and make operational a NOx CEMS and an Ammonia CEMS at the stack of Kiln #2 in accordance with the requirements of Appendix A.

a. On or before the date that a NOx CEMS and an Ammonia CEMS is required pursuant to Paragraph 17, Defendant shall begin to record on a continuous basis the daily clinker production rates by continuously meeting the requirements of 40 C.F.R. § 63.1350(d) to determine hourly clinker production rates.

         18. Except during CEMS breakdowns, repairs, calibration checks, and zero span adjustments, the CEMS required pursuant to Paragraphs 17 and 19 shall be operated at all times during Kiln Operation. Such CEMS shall be used to demonstrate compliance with the 30-Day Rolling Average Emission Limit for NOx established in Section ...


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