AUDIT AGREEMENT 

FOR TEXAS FLEXIBLE PERMIT HOLDERS 

between the

Environmental Protection Agency

and

[Audit Participant]

Whereas, the United States Environmental Protection Agency (“EPA”)
recognizes the value to EPA, Industry, and the Public of clearly defined
emission, monitoring, and reporting obligations under federal law for
sources currently regulated under the Texas flexible permit program.

Whereas, EPA has created a voluntary Audit Program designed to allow
Texas flexible permit holders to establish and/or identify
federally-enforceable Emission Unit Requirements, as the term is defined
herein, for inclusion in federal Clean Air Act (“CAA”) Title V
permits, and appropriate federally-enforceable non-Title V permits.  See
___________ (“Program Notice”).

Whereas, the Texas Commission for Environmental Quality (“TCEQ”) is
the delegated permitting entity for the State of Texas, providing
guidance on Texas permitting and regulations, and processing permit
applications filed pursuant to Consent Agreement and Final Order
(“CAFO”) entered as part of this Audit Program.  

Whereas, EPA and _______ (“Audit Participant”) intend to enter into
a CAFO memorializing the Audit Participant’s commitment to seek the
inclusion of agreed upon Emission Unit Requirements in both Title V and
appropriate federally-enforceable non-Title V permits.

Whereas EPA and the Audit Participant (the “Parties”) desire to
enter into and be bound by the terms of this “Audit Agreement for
Texas Flexible Permit Holders” (“Agreement”).

Now, therefore, in consideration of the above, EPA and the Audit
Participant agree as follows:

I. Applicability 

This Agreement shall apply to and be binding upon EPA and the Audit
Participant, including but not limited to its officers, directors,
agents, servants, employees, successors, and assigns.  The Audit
Participant shall give notice of this Agreement to any successor in
interest prior to the transfer of the Facility or any ownership interest
in any Emission Source regulated under the Texas flexible permit.

II. Representations

The Audit Participant represents that:

The facility that shall be subject to the terms of this Agreement is
_____ and is located at ______ (“Facility”).

It is the owner and/or operator of the Facility.

It is submitting this executed Agreement to EPA within ___ days of the
Audit Program Notice.

III. General Provisions

For purposes of this Agreement and any proceeding, without trial or any
adjudication of facts, the Audit Participant admits that EPA has
jurisdiction over the subject-matter of the terms of this Agreement and
any materials submitted to EPA pursuant to this Agreement.

The auditor’s identification of potential areas of noncompliance
pursuant to this Agreement shall not constitute an admission of any
violation of the CAA or any other environmental requirements for
purposes of this Agreement or any other civil, criminal, or
administrative proceeding.

No later than 30 days prior to the closing date of a transfer to another
party of the Facility, the Audit Participant shall provide written
notice and a copy of this Agreement to each party accepting transfer of
the Facility.  Such notice shall include this Agreement and any
materials developed pursuant to this Agreement.  Further, the Audit
Participant shall notify EPA in writing of such a transfer of the
Facility at least 10 days prior to such transfer, including
identification of the purchaser and the Facility. 

IV. Definitions

“Audit” shall mean the comprehensive third-party CAA compliance
audit as described in this Agreement and at __ Fed. Reg. ___ (Date).

“Audit Participant’s Report and Certification” shall mean the
report that provides the Audit Participant’s comments on the Audit
Report, including the Audit Participant’s proposed table of applicable
Emission Unit Requirements for each Emission Unit.  Proposal of Emission
Unit Requirements in the Audit Participant’s Report and Certification
binds the Audit Participant to apply for a revision to its Title V
permit, and to obtain appropriate federally-enforceable non-Title V
permits.  This obligation shall be memorialized in a federal
administrative CAFO between the Audit Participant and EPA.  

“Audit Program” shall mean the Audit itself, all deliverables, and
process required under this Audit Agreement.  

“Audit Report” shall mean the report drafted by the Third-Party
Auditor that presents the detailed results of the Audit and identifies
Emission Unit Requirements for each Emission Unit.  

“Best Available Control Technology” or “BACT” shall mean Best
Available Control Technology as defined in the federally approved Texas
SIP or as defined in 40 C.F.R. § 52.21 where no federally approved
definition of BACT can be identified in the Texas SIP.  

“Change” shall mean the act, process, or result of altering or
modifying.  

“Community-based Projects” or “CPs” shall mean projects
completed by or paid for by an Audit Participant focused on improving,
protecting, or reducing community risks to public health or the
environment that could have been caused by potential violations by the
Audit Participant.  

“Consent Agreement and Final Order” or “CAFO” shall mean the
final order memorializing the Audit Participant’s commitment to apply
for a Title V permit revision, and appropriate federally-enforceable
non-Title V permits.  

“Emission Determination(s)” shall mean the conclusions of the
Third-Party Auditor as to pollutant emission levels, increases, or
decreases at any Emission Unit and non-Texas Flexible Permit Emission
Units at the Facility.  

“Emission Unit” shall mean any part of a stationary source regulated
under a Texas Flexible Permit that emits, or would have the potential to
emit, any pollutant subject to regulation under the Federal CAA.

“Emission Unit Requirements” shall mean: 1) pollutant emission
limitations/standards; 2) controls/operational changes/operational
practices needed to meet the emission limitations/standards; 3)
monitoring and reporting requirements necessary to determine continuous
compliance with emission limitations; 4) a compliance schedule, if
needed; and 5) interim emission limitations/standards, if needed.

“Facility” shall mean the ______ [type of facility, i.e., refinery,
olefins plant, power generating plant, etc.] located at _____ [address]
_____ [owned and/or operated] by ______ holding the Texas Flexible
Permit number(s) ______ [flexible permit number].

“Federal CAA Compliance Status” shall mean a determination of the
Emission Unit Requirements for a particular Emission Unit based on
review of the operational and physical history of the Emission Unit with
reference to applicable federal regulations and requirements in the
federally approved Texas SIP.  The concept of Federal CAA Compliance
Status in the context of this program is further defined and explained
in paragraphs below.  

“Hyperlinks” shall mean a reference to an external piece of
information in any of the work products generated pursuant to this
Agreement accessible by clicking on the Hyperlink. 

“Hypertext” shall mean text, displayed on a computer, with
references (Hyperlinks) to other text that the reader can immediately
access by a mouse click.

“Lowest Achievable Emissions Rate” or “LAER”  shall mean Lowest
Achievable Emissions Rate as defined in the federally approved Texas SIP
or as defined in 40 C.F.R. § 52.21 where no federally approved
definition of LAER can be identified in the Texas SIP.  

“New Source Review” or “NSR” shall mean both the New Source
Review and Prevention of Significant Deterioration programs authorized
by Congress at 42 U.S.C. §§ 111 and 112, the federal rules at 40
C.F.R. Parts 51 and 52, and the Texas SIP requirements promulgated to
implement the same.

“Program Notice” shall mean EPA’s Texas Flexible Permit Audit
Program Notice published on _____ at __ Fed. Reg. _____.

“Texas Flexible Permit(s)” shall mean Texas air emission control
permits issued Texas to the Facility pursuant to 30 TAC 116.710.

“Texas State Implementation Plan” or “Texas SIP” shall mean the
portions of Texas state air regulations that were submitted by Texas and
approved by EPA for inclusion in the federally recognized SIP.  The
current content of the SIP and an historical overview of previous
versions of the SIP can be found at
http://yosemite1.epa.gov/r6/Sip0304.nsf/home?Openview&Start=1&Count=30&E
xpand=6. 

“Third-Party Auditor” shall mean the independent Third-Party
company(ies) hired by the Audit Participant to conduct the Audit and who
meet the requirements set forth in Paragraph 27 below. 

V.  Specific Requirements and Instructions Regarding the Audit and
Reports

A.	Independence of and Requirements Regarding the Third-Party Auditor

The requirements of paragraphs 28 - 32 below, shall apply to the
Third-Party Auditor and employees of the Third-Party Auditor working on
the Audit performed to satisfy this Audit Agreement.

The Third-Party Auditor shall have a reasonable number of employees, but
in no instance less than one, who meets the qualification requirements
of ISO 19011 (First edition, 2002-10-01).  

The Third-Party Auditor shall be paid by the Audit Participant in an
amount sufficient to carry-out the provisions of this Audit Agreement. 
The Third-Party Auditor must not be an employee or former employee of
the Audit Participant.  The Third-Party Auditor must not directly own
any stock in the Audit Participant or in any parent or subsidiary, and
must have no direct financial stake in the outcome of the Audit
conducted pursuant to this Audit Agreement.  

The Third-Party Auditor shall not have been involved in the development
of the CAA permits held by the Audit Participant at the facility being
audited under this program.

If the Audit Participant has any contractual relationship with the
Third-Party Auditor, the Audit Participant shall disclose to EPA such
past or existing contractual relationships in an attachment to this
Audit Agreement. 

The Audit Participant agrees to not enter into any contractual or
employment relationships with the Third-Party Auditor for a period of 1
year after the submission of the Audit Report.

Within 15 days of the Audit Participant’s execution of this Audit
Agreement, EPA may choose to reject the Third-Party Auditor.  EPA may
elect to reject the Third-Party Auditor for failing to meet any of the
conditions identified in paragraphs 28 - 32 of this Audit Agreement or
where it has reason to believe that an actual or potential conflict may
exist as between the Audit Participant and its proposed Third-Party
Auditor.  If EPA rejects the Third-Party Auditor, the Audit Participant
may choose another Third-Party Auditor, again subject to EPA rejection. 


The conclusions of the Third-Party Auditor must be its own, based on
best professional judgment applied to the facts, materials, and
information collected, obtained, or learned during the course of the
Audit.  The Audit Report submitted by the Third-Party Auditor must be
stamped by a professional engineer licensed in the State of Texas.  

The Audit Participant shall take all steps necessary steps to ensure
that it openly share with the Third-Party Auditor confidential and
business sensitive information.  

To the extent that documents needed to complete the Audit are not
available in the files of the Audit Participant, the Third-Party
Auditor, with assistance as necessary from the Audit Participant, shall
seek the needed documentation elsewhere.  

This Audit Agreement includes requirements regarding the performance of
the Audit and the form of deliverables.  The Audit Participant and
Third-Party Auditor are responsible for abiding by these requirements. 
Deliverables must be clear and detailed, and supporting information must
be submitted in a manageable form.  Lack of clarity, incomplete
documentation, and/or documentation submitted in an unorganized or
difficult to manage manner shall be grounds for rejection of the Audit.

As to all Emissions Determinations made and Emission Unit Requirements
recommended pursuant to this Agreement, the Third-Party Auditor shall
make best professional efforts to ensure the information reported to EPA
is as accurate as possible.  The Third-Party Auditor may arrive at
Emission Determinations and Emission Unit Requirements by verifying
emissions estimates and measurements made by the Audit Participant or a
predecessor in interest, by re-calculating emission values previously
used in permitting or other contexts, or by using its best professional
judgment to calculate emissions using the most accurate assumptions,
emission factors, or other available information and/or tools. 

B.	Overview of Audit Requirements and Scope 

The Audit Participant shall make best efforts to ensure that the Audit
represents:  a) an accurate determination of each Emission Unit’s
current Federal CAA Compliance Status; and; b) an accurate determination
of the applicable Emission Unit Requirements for each Emission Unit.  

The Audit will consist of a detailed review of the physical,
operational, and regulatory history of each Emission Unit.  The review
time frame, except for NSR, shall be from the date the Texas Flexible
Permit became effective to the present.  In the case of the NSR review,
the emissions review time frame may need to include a period of time
prior to the issuance of the flexible permit in order to establish a NSR
emissions baseline.  The historical review is critical to this process
because various types of Changes may have caused Emission Units to be
subject to various federal CAA regulations.  The Audit shall clearly
identify federal rules applicable to each Emission Unit and demonstrate
each Emission Unit’s compliance status with federal rules.  

The Third-Party Auditor shall prepare a version of the Audit Report that
excludes any Confidential Business Information (“CBI”).  The Audit
Participant shall prepare a version of the Audit Participant’s Report
and Certification that excludes any CBI.  These CBI redacted reports,
along with the negotiated CAFO between the Audit Participant and EPA
shall be posted on the Internet for public review and comment.

All Audit deliverables shall be electronic Hypertext documents allowing
all supporting material related to the Audit to be accessed by clicking
on the Hyperlinks imbedded in the deliverables.

Documents supporting the analysis and conclusions of the Audit shall be
scanned into pdf files in the manner in which they were originally
produced and delivered by the author.  For example, in scanning a permit
application, the scan should include everything that was in the envelope
that was originally sent to the state of Texas.  Items like reports
should include the transmittal letter and all attachments as part of the
same pdf file that includes the report.  CBI documents shall be provided
separately.

Each scanned document shall be named in the following manner: date
[underscore] transmitting party [underscore] primary recipient
[underscore] beginning bates stamp number [underscore] .pdf.  For
example, a letter from John Doe, the plant manager of X corporation’s
facility to Tom Permit-Writer of TCEQ sent June 6, 2006 with a beginning
bates stamp of 0005555 should be titled:
06062006_xcorp_tceq_0005555.pdf.  In the situation where transmittal
letters have a different issuance date from the attached material, the
date of the transmittal letter shall be used in the title of the pdf.

C.	Development of Community-Based Projects

Within 30 days of signing the Audit Agreement, the Audit Participant,
shall initiate contacts with representative of their local community to
initiate discussions focused on identifying potential candidate CP(s). 
In developing their CP(s), Audit Participants will be required to work
with their local community representatives to develop the project
details and an implementation schedule that will be included in the
final CAFO.  Each CP must have a clear nexus to potential air emissions
from the Facility and identify the benefits to be received by the
community as a result of the project.  

The required value of CPs to be implemented by each Audit Participant
will be determined using three factors:

Flexible permit amendments (an indicator of changes at the facility that
were not authorized pursuant to a properly-issued federally-enforceable
permit);

Total criteria pollutant emissions (an indicator of potential for
community and environmental impacts); and

Total NSR authorizations for the facility during the period of time that
the Audit Participant’s Texas Flexible Permit was in effect (an
indicator of facility complexity).

EPA will utilize these factors to divide the universe of Texas Flexible
Permit holders into four tiers based upon the composite ranking of the
facility.  The composite score is obtained by summation of the
facilities ranking as compared to all Flexible Permit holders (from 1 to
126) using the three factors in paragraph 46 above.  The tiers will
determine the minimum required expenditure for the CP(s).   See Appendix
A for the Tiered Ranking of Flexible Permit Holders.

Table of Community Project Valuations by Tiered Ranking

of the Flexible Permit Holders

Tier	Ranking	CP(s) Expenditure Required

   Tier 1	1-31	$2,000,000 – $4,000,000

   Tier 2	32-64	 $1,000,000 – $2,000,000

   Tier 3	64-95	    $250,000 – $1,000,000

   Tier 4	96-126	$50,000 – 250,000



Attachment A includes a listing of all Texas Flexible Permit holders
with an indication of into which CP tier each facility falls, including
an overview of how the specific calculations were completed. 

Within 180 days of signing the Audit Agreement, the Audit Participant
will submit to EPA a final CP proposal for approval.  The CP proposal
shall include a detailed description of the project(s), a schedule for
project implementation (CPs must be completed within one year of the
CAFO date), a clear discussion of air nexus, and a discussion of the
community involvement and outreach conducted as the project was
developed.

The final CP(s) will be specified in the CAFO and will include a
detailed description of the project and a schedule for implementation of
the project, interim status reports and a final project report to be
completed within the term of the CAFO.

D.	Applicable law for the NSR portion of the Audit

The Third-Party Auditor shall apply the version of the NSR regulations
that were federally approved and therefore included in the Texas SIP at
the time of the particular Change being reviewed.  In reviewing Changes
that triggered or should have triggered NSR review, the attainment
status of the area in which the Facility is located at the time of the
Changes under review shall be used for purposes of determining the major
modification threshold and the required level of control, unless NSR
non-compliance is identified.  In the case of non-compliance, the
current attainment status shall be used to determine the level of
control.

E.	Establishment of NSR Emission Unit Requirements

This Audit Program does not automatically require participants to seek
current LAER/BACT Emission Unit Requirements at every Emission Unit
regulated under a Texas Flexible Permit. 

 

NSR Emission Unit Requirements shall be currently applicable, and
therefore approvable by EPA in the context of this Audit Program, where
during the term of the flexible permit the Emission Unit was not changed
in such a way so as to require new more stringent NSR Emission Unit
Requirements.  

If NSR Emission Unit Requirements were developed during the term of the
Audit Participant’s Flexible Permit, such Emission Unit Requirements
may be currently applicable, and therefore approvable by EPA in the
context of this Audit Program, where such Emission Unit Requirements
were developed in a manner fully consistent with the Federally Approved
SIP in effect at the time the promulgation of the Emission Unit
Requirements.  The Third-Party Auditor shall make a specific
determination to ensure that each Emission Unit Requirement was issued
consistent with the processes outlined in the Federally Approved SIP.  

If EPA determines that the Audit Participant is in non-compliance with
NSR, installation of emission controls consistent with current year
LAER/BACT for the Emission Units implicated by the NSR non-compliance is
required under this program.  EPA may determine that non-compliance with
NSR should result in the collection of civil penalties from the Audit
Participant.  The parties would need to agree to the level of such
penalties prior to EPA’s issuance of a covenant-not-to-sue under this
program.  

F.	Requirements for the NSR section of the Audit Report

Part 1 of the NSR Section of the Audit Report shall consist of a
detailed summary of the Audit process.  This part shall include a
description of the personnel and data tools used, a general description
of the documents reviewed, and a discussion of any serious problems
encountered in conducting the Audit.

Part 2 of the NSR Section of the Audit Report shall consist of an
executive summary of the findings of the NSR portion of the Audit,
including, but not limited to:  

A detailed description of all prior NSR permits that were replaced by
the flexible permit;

A description of the NSR potential noncompliance found, if any, at each
Emission Unit; 

A list of Emission Unit projects/Changes that exceeded NSR significance
thresholds but that netted out of BACT review or LAER review; 

A list of the recommended Emission Unit Requirements dictated by the NSR
review; 

Summaries of all Emission Determinations; 

Summaries of BACT or LAER determinations; 

For all NSR Emission Unit Requirements established by TCEQ during the
term of the Flexible Permit, a detailed analysis of why or why not the
process used by TCEQ complied with the contemporaneous, federally
approved SIP; and 

For all instances of NSR non-compliance identified, a list of proposed
Emission Unit Requirements for each emissions unit where non-compliance
was identified.  The Third-Party Auditor will use the BACT/LAER Clearing
House to provide recommendations of present day (2010) BACT or LAER.  

Part 3 of the NSR Section of the Audit Report shall consist of a
detailed narrative describing the Audit review process for each Emission
Unit, including, but not limited to the process analyses, emissions
analyses, and regulatory analyses, emissions calculations (including any
formula, assumptions and/or emission factors used), and the conclusions.
 All supporting materials shall be referenced in footnotes with
Hyperlinks to historical and contemporaneous supporting documents.  

Part 4 of the NSR Section of the Audit Report shall consist of a
chronological list of all documents produced in support of the NSR
portion of the audit.  The list shall state the name of the document,
its date, its bates stamp range, attachments appended to the document
and the bates stamp range of such attachments, and a Hyperlink to the
pdf of each document.  All documents shall be produced in searchable pdf
format utilizing optical character recognition. 

Part 5 of the NSR Section of the Audit Report shall consist of a table
of all applicable NSR related Emission Unit Requirements for each
Emission Unit that will provide the basis for necessary permitting
revisions by the appropriate permitting authority.

G.	Requirements for non-NSR Audit and non-NSR section of the Audit
Report

The non-NSR CAA Audit shall determine the CAA compliance status and
recommended Emission Unit Requirements for each Emission Unit with
reference to the non-NSR federal CAA regulations in effect at the time
of the Emission Unit’s construction or at the time of any event that
may have caused the Emission Unit to be subject to non-NSR federal CAA
regulations or that may have changed the Emission Unit’s requirements
pursuant to non-NSR federal CAA regulations.  In the case of Emission
Units that triggered NSR and require BACT or LAER level controls, the
Audit Report shall also explicitly state all other applicable CAA
regulations and the corresponding Emission Unit Requirements.

Part 1 of the non-NSR Section of the Audit Report shall consist of a
detailed summary of the Audit process.  This section shall include a
description of the personnel and data tools used, a general description
of the documents reviewed, and a discussion of any serious problems
encountered in conducting the Audit.

Part 2 of the non-NSR Section of the Audit Report shall consist of an
executive summary of the findings of the non-NSR audit, including but
not limited to:

A detailed description of all prior SIP based permits that were replaced
by the flexible permit;

A description of all non-NSR CAA potential violations found; 

Summaries of all Emission Determinations; and

Recommended non-NSR Emission Unit Requirements. 

Part 3 of the non-NSR Section of the Audit Report shall consist of a
detailed narrative describing the review process of each Emission Unit,
including, but not limited to the process analyses, emissions analyses,
and regulatory analyses, emissions calculations (including any formula,
assumptions and/or emission factors used), and the conclusions.  All
supporting materials shall be referenced in footnotes with Hyperlinks to
historical and contemporaneous supporting documents.  

Part 4 of the non-NSR Section of the Audit Report shall consist of a
chronological list of all documents produced in support of the non-NSR
portion of the audit.  The list shall state the name of the document,
its date, its bates stamp range, attachments appended to the document
and the bates stamp range of such attachments, and Hyperlinks to the pdf
of each document.  All documents shall be produced in searchable pdf
format utilizing optical character recognition. 

Part 5 of the non-NSR Section of the Audit Report shall consist of a
table of all applicable non-NSR related Emission Unit Requirements for
each Emission Unit that will provide the basis for necessary permitting
revisions by the appropriate permitting authority.

H.	Audit Report Certifications 

The Audit Report shall include the following certification executed by a
responsible official representing the Third-Party Auditor:

I certify under penalty of law that this document was prepared at my
direction, and to the best of my knowledge and belief, the information
submitted is true, accurate, and complete.  

The Audit Report and all Emission Unit Requirements (including
underlying Emission Determinations and LAER/BACT analysis) shall be
certified as accurate by a registered professional engineer.  

The Audit Report shall include the following certification executed by a
responsible official representing the Audit Participant:

I certify under penalty of law that _____ [the Audit Participant] to the
best of my knowledge and belief has cooperated fully with _____ [the
Third-Party Auditor] in its efforts to prepare this document, has
provided all information requested by ____ [the Third-Party Auditor],
and that the information provided to ____ [the Third-Party Auditor] is
true, accurate, and complete.  

I.	Audit Participant’s Report and Certification 

The Audit Participant’s Report and Certification shall consist of the
following sections:

An Introduction/Executive Summary outlining the differences between the
conclusions made in the Audit Report and the conclusions made in the
Audit Participant’s Report and Certification, if any.

A version of the Audit Report with “redline” comments, deletions,
and insertions by the Audit Participant.  In this section, the Audit
Participant shall make, to the extent necessary, detailed presentations
on why its conclusions differ from those in the Audit Report.  The Audit
Participant may present information in the form of bracketed text within
the Audit Report redline or by adding Hyperlinks to more detailed
supplementary materials.

An Excel spreadsheet including a row for each Emission Unit regulated
pursuant to the Texas Flexible Permit with proposed Emission Unit
Requirements.  This spreadsheet shall include Hyperlinks to all material
supporting the each proposed Emission Unit Requirement.

The following certification executed by a responsible official
representing the Audit Participant:

I certify under penalty of law that this document was prepared at my
direction, and to the best of my knowledge and belief, the information
submitted is true, accurate, and complete, and that all Emission Unit
Requirements, Emissions Determinations, and LAER/BACT analyses were
reviewed and certified as accurate by a registered professional
engineer.  

J.	Notification 

The Audit Participant designates the following individual as its contact
person to receive all communication from EPA and the Third-Party Auditor
concerning this Agreement:

_______________________________________

(name, title, address, phone, email)

The Third-Party Auditor designates the following individual as its
contact person to receive all communication from EPA and the Audit
Participant concerning this Agreement:

_______________________________________

EPA designates the following individual as its contact person to receive
all communication from the Audit Participant and Third-Party Auditor
concerning this Agreement:

_______________________________________

The parties may re-designate their contact persons in writing at any
time.

VI. Audit Schedule and CAFO Process

The Audit Report shall be delivered to EPA no later than 160 days after
the effective date of the Audit Agreement.  A version of the Audit
Report with CBI redacted will be published on the Internet upon receipt
by EPA.  EPA shall review the independence of the Third-Party Auditor
prior to executing the Audit Agreement.

No later than 180 days after the effective date of the Audit Agreement,
the Audit Participant will submit to EPA a final CP proposal for
approval.

No later than 250 days after the effective date of the Audit Agreement,
the Audit Participant shall deliver to EPA the Audit Participant’s
Report and Certification.  A version of the Audit Participant’s Report
and Certification with CBI redacted will be published on the Internet
upon receipt by EPA.

In the period subsequent to delivery of the Audit Participant’s Report
and Certification, EPA and the Audit Participant may discuss the content
of the Audit Report and the Audit Participant’s Report and
Certification.  EPA may seek additional information from the Audit
Participant.  The Audit Participant agrees to respond in a timely manner
to any such request.

At any time after the delivery of the Audit Participant’s Report and
Certification, EPA may propose to the Audit Participant a form of CAFO
that is consistent with the model CAFO attached to this agreement as an
Attachment B.

If EPA agrees with all of the Emission Unit Requirements proposed in the
Audit Participant’s Report and Certification, the CAFO will require
that the Audit Participant apply for a Title V permit revision to
incorporate and obtain appropriate federally-enforceable non-Title V
permits to memorialize all such Emission Unit Requirements and require
the Audit Participant to perform agreed upon CP(s).  The Audit
Participant hereby agrees to sign such a CAFO within 15 days of receipt.

If EPA agrees with some, but not all of the Emission Unit Requirements
proposed in the Audit Participant’s Report and Certification, the CAFO
may include a subset of the Emission Unit Requirements proposed in the
Audit Participant’s Report and Certification, along with either
Emission Unit Requirements agreed to by the Parties, and/or where no
agreement can be reached, Emission Unit Requirements chosen by EPA.  The
CAFO will require that the Audit Participant apply for a Title V permit
revision to incorporate and obtain appropriate federally-enforceable
non-Title V permits to memorialize all such Emission Unit Requirements
and require the Audit Participant to perform agreed upon CP(s). The
Audit Participant shall have 30 days to sign the CAFO.  If the Audit
Participant does not sign the CAFO, the Audit process ends with no
agreement as to Emission Unit Requirements or CP(s).

Once a CAFO has been signed by the Audit Participant and by EPA, EPA
will file the CAFO, and a short letter summarizing the CAFO with the EPA
Region 6 Judicial Officer.  At the same time, the CAFO will be published
on the Internet for a public comment period of 30 days. 

After the public comment period ends, EPA will consider any public
comments, and, as appropriate, seek to work with the Audit Participant
to revise the CAFO based on such public comments.  After any necessary
revisions are made, EPA will seek finalization of the CAFO by the Region
6 Judicial Officer.  The offering of the CAFO for public comment does
not explicitly create an obligation for EPA response or inclusion of
such comments nor does this create any rights for public objection to
the final CAFO.

VII.  Compliance with Laws and Regulations, Reservation of Rights, and
Modifications

Neither the existence of this Agreement nor compliance with this
Agreement relieves the Audit Participant of the obligation of continued
compliance with the regulations covered under this Agreement, and all
other applicable federal, state, and local laws and regulations.

This Audit and CAFO do not prejudge the permitting process or replace
it.  The agreed upon Emission Unit Requirements are minimum requirements
in order for the Audit Participant to receive a covenant-not-to-sue
pursuant to the Audit Program.  The permitting authority will follow the
rules and processes in place including public participation at the
appropriate time.

EPA reserves its rights to proceed against the Audit Participant for
violations outside the scope of the Audit and for violations within the
scope of this Audit that are not explicitly released in the CAFO.  EPA
reserves the right to commence an action against any person, including
the Audit Participant in response to any condition which EPA determines
may present an imminent and substantial endangerment to the public
health, welfare, or environment.  This Agreement is not intended, and
shall not be construed, to resolve any claim for criminal sanctions now
pending or sought in the future, and shall not limit the right of the
United States to pursue criminal sanctions for violation of law.

Nothing in this Agreement shall limit the authority of EPA to conduct
any inspections or information gathering under applicable federal law.

A writing signed by the parties may modify this Agreement.



WE, THE UNDERSIGNED, HEREBY AGREE TO BE BOUND BY THIS AGREEMENT: 

For U.S. EPA:

________________________________________

John Blevins, Director

Compliance Assurance and Enforcement Division

EPA Region 6

For ___________ [Audit Participant]:

________________________________________



RN#	Company Name	Permit Number	Tier

RN100225945	THE DOW CHEMCIAL COMPANY	20432	1

RN102579307	EXXON MOBIL CORPORATION	18287	1

RN102495884	CONOCOPHILLIPS COMPANY	9868A	1

RN100209451	MOTIVA ENTERPRISES LLC	8404	1

RN100211879	SHELL CHEMICAL LP	56496	1

RN100235266	FLINT HILLS RESOURCES LP	8803A	1

RN100238385	VALERO REFINING COMPANY - TEXAS	39142	1

RN102535077	BP PRODUCTS NORTH AMERICA INC	47256	1

RN102584026	THE PREMCOR REFINING GROUP INC	6825A	1

RN100218130	HOUSTON REFINING LP	2167	1

RN102574803	EXXON MOBIL CORPORATION	20211	1

RN100210517	DIAMOND SHAMROCK REFINING COMPANY LP	9708	1

RN100210608	MARATHON PETROLEUM COMPANY LLC	22433	1

RN102450756	EXXONMOBIL OIL CORPORATION	49138	1

RN102534138	FLINT HILLS RESOURCES LP	6308	1

RN100211663	VALERO REFINING-TEXAS LP	2937	1

RN100214386	VALERO REFINING-TEXAS LP	38754	1

RN102018322	CHEVRON PHILLIPS CHEMICAL COMPANY LP	4437A	1

RN100542802	DIAMOND SHAMROCK REFINING COMPANY LP	50607	1

RN102320850	CHEVRON PHILLIPS CHEMICAL COMPANY LP	21918	1

RN100213016	WESTERN REFINING COMPANY LP	18897	1

RN100217389	FLINT HILLS RESOURCES LP	16989	1

RN100219286	HOLCIM TEXAS LIMITED PARTNERSHIP	8996	1

RN100238708	INEOS USA LLC	95	1

RN100825249	CHEVRON PHILLIPS CHEMICAL COMPANY LP	22690	1

RN100250869	ALON USA LP	36845	1

RN100209857	CHEVRON PHILLIPS CHEMICAL COMPANY LP	32713	1

RN100211879	SHELL OIL COMPANY	21262	1

RN100870898	THE GOODYEAR TIRE & RUBBER COMPANY	6618	1

RN100212356	LOCKHEED MARTIN CORPORATION	16862	1

RN100224740	OILTANKING HOUSTON LP	5631	1

RN102536307	BP AMOCO CHEMICAL COMPANY	1176	2

RN100224468	FIRESTONE POLYMERS LLC	292	2

RN100229905	INEOS POLYETHYLENE NORTH AMERICA	49823	2

RN100237452	KM LIQUIDS TERMINALS LLC	2193	2

RN100226844	LOWER COLORADO RIVER AUTHORITY	51770	2

RN102212925	EXXON MOBIL CORPORATION	3452	2

RN100217231	OILTANKING TEXAS CITY LP	3284	2

RN101042885	OILTANKING BEAUMONT PARTNERS LP	21356	2

RN101618759	FLINT HILLS RESOURCES LP	18105	2

RN102180486	MAGELLAN TERMINALS HOLDINGS LP	4850	2

RN102537289	INEOS POLYMERS INC	28351	2

RN102771078	NORBORD TEXAS JEFFERSON INC	24679	2

RN100210095	US DEPARTMENT OF THE ARMY	79097	2

RN100219005	3M COMPANY	71623	2

RN102323268	ENTERPRISE PRODUCTS OPERATING LLC	76070	2

RN100543040	NORBORD TEXAS NACOGDOCHES INC	9958	2

RN102528197	BIGLER LAND LLC	7278	2

RN100216779	DAL-TILE CORPORATION	18330	2

RN104262704	AKZO NOBEL POLYMER CHEMICALS LLC	21865	2

RN102456597	THE GOODYEAR TIRE & RUBBER COMPANY	40933	2

RN100217306	EBAA IRON INC	664	2

RN100542828	ZEE MANUFACTURING LTD	43104	2

RN100215615	CHEVRON PHILLIPS CHEMICAL COMPANY LP	583A	2

RN100542562	LEEDO MANUFACTURING CO LP	77410	2

RN102540754	PPG INDUSTRIES INC	1862A	2

RN100214824	PLAINS PIPELINE LP	72712	2

RN101059673	FLINT HILLS RESOURCES LP	19079	2

RN100226125	MOTIVA ENTERPRISES LLC	26638	2

RN101058733	FLINT HILLS RESOURCES LP	19082	2

RN100222744	FLINT HILLS RESOURCES LP	6606	2

RN100218197	THE SHERWIN-WILLIAMS COMPANY	74886	2

RN101973782	PLAINS PIPELINE LP	73357	2

RN100519651	MOTIVA ENTERPRISES LLC	1285	3

RN100561182	CB&I CONSTRUCTORS INC	34184	3

RN102186129	MAGELLAN PIPELINE TERMINALS LP	70042	3

RN100214824	PLAINS PIPELINE LP	72762	3

RN100519214	MOTIVA ENTERPRISES LLC	19035	3

RN100214949	NUSTAR LOGISTICS LP	50595	3

RN104095435	PRAXAIR INC	19297	3

RN100216753	CAMPBELL SOUP SUPPLY COMPANY LLC	56233	3

RN101162774	TRANE US INC	47724	3

RN100519636	MOTIVA ENTERPRISES LLC	31978	3

RN100216548	MOTIVA ENTERPRISES LLC	37200	3

RN100918754	CHEMICALS INCORPORATED	50478	3

RN102530268	MOTIVA ENTERPRISES LLC	48662	3

RN100225739	EXPLORER PIPELINE COMPANY	56218	3

RN100219591	TE PRODUCTS PIPELINE COMPANY LP	88	3

RN102183449	MAGELLAN PIPELINE TERMINALS LP	1296A	3

RN100225671	850 PINE STREET INC	56685	3

RN100213545	NCI GROUP INC	17210	3

RN103179289	NUSTAR LOGISTICS LP	54984	3

RN100219161	MITSUBISHI CATERPILLAR FORKLIFT AMERICA INC	22104	3

RN100219260	NOBLE PETRO INC	1889A	3

RN101950616	PLAINS PIPELINE LP	73458	3

RN103219127	NACOGDOCHES POWER LLC	77679	3

RN100210756	US DEPARTMENT OF ENERGY	84802	3

RN102411352	BAE SYSTEMS TACTICAL VEHICLE SYSTEMS LP	21548	3

RN100209337	UT HEALTH SCIENCE CENTER SAN ANTONIO	48056	3

RN100673136	REICHHOLD INC	77738	3

RN102305943	PLAINS PIPELINE LP	72761	3

RN101296507	PLAINS PIPELINE LP	72760	3

RN102874419	STEWART & STEVENSON SERVICES INC	53418	3

RN102027174	SHELL PIPELINE COMPANY LP	56342	3

RN102341880	UNIVAR USA INC	70652	4

RN102553336	EXXONMOBIL OIL CORPORATION	49131	4

RN100215128	WEST TEXAS GULF PIPE LINE COMPANY	72661	4

RN100219716	SHELL PIPELINE COMPANY LP	56253	4

RN104517826	PORT ARTHUR LNG LP	74485	4

RN100214824	PLAINS PIPELINE LP	72763	4

RN104248141	NUSTAR TERMINALS PARTNERS TX LP	54985	4

RN104620083	INEOS AMERICAS LLC	82132	4

RN105366934	FLINT HILLS RESOURCES LP	83149	4

RN104477161	EI DU PONT DE NEMOURS AND COMPANY	76165	4

RN100813492	MAGELLAN PIPELINE TERMINALS LP	73439	4

RN105156707	TOYO INK MFG AMERICA LLC	81030	4

RN100242973	GARDNER GLASS PRODUCTS INC	18495	4

RN101988541	PLAINS PIPELINE LP	73383	4

RN100683010	GENERAL ALUMINUM COMPANY OF TEXAS LP	6081	4

RN100212349	TEPPCO CRUDE PIPELINE LLC	73416	4

RN102194271	CHEVRON PRODUCTS COMPANY	78189	4

RN102904794	CHEMICAL RESEARCH & LICENSING COMPANY	32468	4

RN104314273	LONESTAR FIBERGLASS POOLS LLC	72302	4

RN101466159	TEX-TRUDE LP	49230	4

RN100812502	RIO GRANDE MINING COMPANY	80987	4

RN101073013	CITGO PETROLEUM CORPORATION	56151	4

RN100224088	CITGO PIPELINE COMPANY	56121	4

RN100220011	MAGELLAN PIPELINE COMPANY LP	56340	4

RN101388163	RANGEN INC	21318	4

RN104277793	FORBO ADHESIVES LLC	74599	4

RN102575073	PLAINS PIPELINE LP	72984	4

RN104222278	COBISA-GREENVILLE LIMITED PARTNERSHIP	71739	4

RN100767714	THE WW HENRY COMPANY LP	20513	4

RN104136700	SANDY CREEK ENERGY ASSOCIATES LP	70861	4

RN102459765	PLAINS PIPELINE LP	72985	4

RN104156526	PLAINS PIPELINE LP	73368	4





UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

REGION 6

DALLAS, TEXAS

IN THE MATTER OF:	§

§

[NAME OF AUDIT PARTICIPANT]	§	EPA DOCKET NO. CAA-06-2010-xxxx

[NAME OF CITY, TEXAS]	§

§

§	COMPLAINT AND

§	CONSENT AGREEMENT AND

§	FINAL ORDER

	§	

The Director of the Compliance Assurance and Enforcement Division of the
United States Environmental Protection Agency (EPA), Region 6
(Complainant), and [Name of Audit Participant, Name of City,
Texas](Respondent) in the above referenced proceeding, hereby agree to
resolve this matter through the issuance of this Complaint and Consent
Agreement and Final Order (Complaint and CAFO).

I.   PRELIMINARY STATEMENT

This proceeding is for the assessment of civil penalties pursuant to
Section 113(d) of the Clean Air Act, as amended (CAA), 42 U.S.C. §
7413(d), and for additional terms of settlement as agreed to by
Respondent.  This proceeding was instituted by the issuance of a
Complaint and Notice of Opportunity for Hearing (Complaint) incorporated
herein, and is simultaneously concluded by the issuance of this CAFO
against Respondent pursuant to            40 C.F.R. §§ 22.13(b) and
22.34.

The Complaint alleges [Name of Audit Participant] (abbreviated name)
violated the CAA and specific requirements promulgated thereunder at its
[Name of Facility or Plant] located in [Name of City, County, Texas]
(Facility). 

For purposes of this proceeding, Respondent admits the jurisdictional
allegations of this Complaint; however, Respondent neither admits nor
denies the specific factual allegations contained in this Complaint.

Respondent consents to the issuance of this CAFO hereinafter recited and
consents to the assessment and payment of any stated civil penalty in
the amount and by the method set out in this CAFO; in addition,
Respondent agrees to perform the addition terms of settlement set forth
in Paragraphs 28 through 42 as a condition precedent for the release and
covenant not to sue provisions set forth in Paragraph 43 through 45
below.

5.	Respondent waives any right to contest the allegations in the CAFO
and its right 

to appeal the Final Order set forth herein, and Respondent waives all
defenses which have been 

raised or could have been raised to the claims set forth in the CAFO.

6.	This CAFO shall only resolve Respondent’s liability for federal
civil penalties for the violations and facts alleged in this Complaint;
furthermore, Respondent shall not assert, and may not maintain, any
defense or claim based upon the principles of waiver, res judicata,
collateral estoppel, issue preclusion, or claim-splitting for violations
not alleged in this Complaint.

7.	Nothing in this CAFO shall be construed to prevent or limit EPA's
civil and criminal authorities, or that of other Federal, State, or
local agencies or departments to obtain penalties or injunctive relief
under other Federal, State, or local laws or regulations.

8.	Respondent represents that it is duly authorized to execute this CAFO
and that the party signing this CAFO on behalf of the Respondent is duly
authorized to bind the Respondent to the terms and conditions of this
CAFO.

9.	Respondent agrees that the provisions of this CAFO shall be binding
on its officers, directors, employees, agents, servants, authorized
representatives, successors, and assigns.

II.   FINDINGS OF FACT AND CONCLUSIONS OF LAW

10.	Respondent is a [insert nature of business, e.g., corporation,
partnership, etc.] doing business in the State of Texas and is a
“person” as that term is defined in Section 302(e) of the Act, 42
U.S.C. § 7602(e), and within the meaning of Section 113(d) of the CAA,
42 U.S.C.    § 7413(d).

11.	At all relevant times, Respondent owned and operated a [insert type
of facility, e.g., refinery, chemical manufacturing facility, etc.]
located in [insert name of city], Texas.

12.	Pursuant to Section 110 of the Act, 42 U.S.C. § 7410, Texas has
submitted and EPA has approved a state implementation plan (Texas SIP)
which contains, inter alia, the group of control strategies and
regulations designed to attain and maintain the national ambient air
quality standards (NAAQS) for criteria air pollutants. 

13.	The Texas SIP includes an air permitting program for new and
modified sources of air pollution which provides various mechanisms for
sources to obtain authorizations for their air emissions.  In 1994,
Texas created a flexible air permit program (Texas Flexible Permit
Program), found at 30 TAC Chapter 116, Subchapter G, and submitted that
program to EPA for approval as a revision to the Texas SIP.  However,
EPA has not approved the Texas Flexible Permit Program into the Texas
SIP, and sources remain subject to the federally-approved Texas SIP and
the mechanisms contained therein to effect changes to their operations
that may effect air emissions.

14.	Pursuant to Title V of the Act, 42 U.S.C. §§ 7661-7661f, and the
implementing regulations at 40 C.F.R. Part 70, EPA has approved an air
operating permits program for major and area sources of air pollution in
Texas (Texas Title V program).  30 TAC § 122.132(e)(2) of the Texas
Title V program requires major sources to submit permit applications
that identify all applicable requirements, including the requirements of
the Texas SIP.  See also 40 C.F.R. § 70.5 (a), (c).   Requirements
imposed by state-only programs, such as the Texas Flexible Permit
Program which is not part of the Texas SIP, should be designated as not
being federally enforceable in a source’s Title V permit, as required
by 30 TAC § 122.142(b)(2) and 40 C.F.R. § 70.6(b)(2). 

Count 1

15.	On or about [INSERT date of issuance of Flexible Permit], Respondent
was issued [Permit No. xxxxxxx], an air permit issued under the Texas
Flexible Permits Program.  Permit No. xxxxxx covers various emission
units at Respondent’s facility, including [Insert general description
of the emission units covered by Flexible permit, identifying each
emission point number (EPN) covered by the flexible permit]. 

16.	Under the flexible permit referenced above, Respondent effected
changes at the [name of facility] which altered the nature and quantity
of air emissions authorized from emission units covered by the flexible
permit; these emission units were either previously authorized by
permits issued under the federally-approved Texas SIP or had never been
authorized under the federally-approved Texas SIP.     

17.	Respondent failed to seek and obtain authorization(s) under the
federally-approved Texas SIP for the unit-specific changes in emission
rates/limitations and other requirements contained in their flexible
permit, Permit No. xxxxxx.  

18.	Therefore, Respondent violated the requirements of 30 TAC Chapter
116 of the federally-approved Texas SIP, approved by EPA under Section
110 of the Act, 42 U.S.C.           § 7410.  On [Insert date], notice
of these violations was provided to Respondent and Texas, as required by
Section 113(a)(1) of the Act, 42 U.S.C. § 7413(a)(1). 

Count 2

19.	On [date of issuance], Respondent was issued an air operating
permit, Permit No. O-xxxxx, a permit issued under the EPA-approved Texas
Title V program.  

20.	Permit No. O-xxxx fails to designate the requirements of
Respondent’s flexible permit, Permit No. xxxxxx, as not being
federally enforceable and fails to include all applicable requirements,
such as those requirements contained in permits issued under the
federally-approved Texas SIP. 

21.	Respondent’s failure to identify the terms and conditions of all
permits issued under the federally-approved Texas SIP, as applicable
requirements, in its Title V permit application constitutes a violation
of 30 TAC § 122.132(e)(2) of the federally-approved Texas Title V
program, Title V of the Act and the requirements of  40 C.F.R. § 70.5.

III. TERMS OF SETTLEMENT

A.	CIVIL PENALTY

22.	For the reasons set forth above, Respondent has agreed to pay a
civil penalty which has been determined in accordance with Section
113(d) of the CAA, 42 U.S.C. § 7413(d), which authorizes EPA to assess
a civil penalty of up to twenty-five thousand dollars ($25,000) per day
for each violation of the Act.  Upon consideration of the entire record
herein, including the Findings of Fact and Conclusions of Law, which are
hereby adopted and made a part hereof, and upon consideration of the
size of the business, the economic impact of the penalty on the
business, the violator’s full compliance history and good faith
efforts to comply, the duration of the violation, payment by the
violator of penalties previously assessed for the same violation, the
economic benefit of noncompliance, the seriousness of the violation,
specific facts and equities, litigation risks, and other factors as
justice may require, INCLUDING Respondent’s agreement to perform the
additional terms of settlement set forth below, it is ORDERED that
Respondent be assessed a civil penalty in the amount of  XXXXXXXXXXXX
dollars ($xxxxxxx).

23.	Within thirty (30) days of Respondent’s receipt of this fully
executed CAFO,  Respondent shall pay xxxxxxxxxxxx dollars ($xxxxxxx) by
cashier’s or certified check made payable to “Treasurer, United
States of America, EPA - Region 6.”  Payment shall be remitted in one
of four (4) ways:  regular U.S. Postal Service mail, to include
certified mail; overnight mail; wire transfer; or On Line Payment.  For
regular U.S. Postal Service mail, U.S. Postal Service certified mail, or
U.S. Postal Service express mail, the check(s) should be remitted to:

		U.S. Environmental Protection Agency 

Fines and Penalties

Cincinnati Finance Center

		PO Box 979077

		St. Louis, MO  63197-9000

For overnight mail (non-U.S. Postal Service, e.g. Fed Ex), the check(s)
should be remitted to:

		U.S. Bank

		1005 Convention Plaza

		Mail Station SL-MO-C2GL

		St. Louis, MO  63101

		Contact: Natalie Pearson

		(314) 418-4087

For wire transfer, the payment should be remitted to:

		Federal Reserve Bank of New York

		ABA = 021030004

		Account = 68010727

		SWIFT address = FRNYUS33

		33 Liberty Street

		New York, NY  10045

		Field Tag 4200 of the Fedwire message should read “D 68010727 

		   Environmental Protection Agency”

		phone number (412) 234-4381.

For On-line Payment:

  HYPERLINK "http://WWW.PAY.GOV"  WWW.PAY.GOV 

		Enter sfo 1.1 in search field

		Open form and complete required fields.

PLEASE 

NOTE:  	Docket Number CAA-06-2010-xxxx shall be clearly typed on the
check to ensure proper credit.  The check shall also be accompanied by a
transmittal letter and shall reference Respondent’s name and address,
the case name, and docket number of the administrative complaint and
CAFO.  Respondent’s adherence to this request will ensure proper
credit is given when penalties are received for the Region.  Respondent
shall also send a simultaneous notice of such payment, including a copy
of the money order, or check, and transmittal letter to the following:

	

		Steve Thompson (6EN-AA)

	U.S. EPA, Region 6

		1445 Ross Avenue, Suite 1200

		Dallas, TX  75202-2733 

		Region 6 Hearing Clerk

		U.S. EPA Region 6

		1445 Ross Avenue, Suite 1200

		Dallas, TX  75202-2733

24.	Respondent agrees not to claim, or attempt to claim, a federal
income tax deduction or credit covering all or any part of the civil
penalty paid to the United States Treasurer.

25.	Pursuant to 31 U.S.C. § 3717 and 40 C.F.R. § 13.11, unless
otherwise prohibited by law, EPA will assess interest and late payment
penalties on outstanding debts owed to the United States and a charge to
cover the costs of processing and handling a delinquent claim.  
Interest on the civil penalty assessed in this CAFO will begin to accrue
thirty (30) days after the effective date of the CAFO and will be
recovered by EPA on any amount of the civil penalty that is not paid by
the respective due date.  Interest will be assessed at the rate of the
United States Treasury tax and loan rate in accordance with 40 C.F.R. §
13.11(a).  Moreover, the costs of the Agency’s administrative handling
of overdue debts will be charged and assessed monthly throughout the
period the debt is overdue.  See 40 C.F.R. § 13.11(b).

26.	EPA will also assess a fifteen dollar ($15.00) administrative
handling charge for administrative costs on unpaid penalties for the
first thirty (30) day period after the payment is due and an additional
fifteen dollars ($15.00) for each subsequent thirty (30) day period that
the penalty remains unpaid.  In addition, a penalty charge of up to six
percent per year will be assessed monthly on any portion of the debt
which remains delinquent more than ninety (90) days.  See 40 C.F.R. §
13.11(c).  Should a penalty charge on the debt be required, it shall
accrue from the first day payment is delinquent.  See 31 C.F.R. §
901.9(d).  Other penalties for failure to make a payment may also apply.

27.	Pursuant to Section 113(d)(5) of the Act, 42 U.S.C. § 7413(d)(5),
any person who fails to pay on a timely basis a civil penalty ordered or
assessed under this section shall be required to pay, in addition to
such penalty and interest, the United States enforcement expenses,
including, but not limited to, attorneys fees and costs incurred by the
United States for collection proceedings, and a quarterly nonpayment
penalty for each quarter during which such failure to pay persists. 
Such nonpayment penalty shall be 10 percent of the aggregate amount of
such person’s outstanding penalties and nonpayment penalties accrued
as of the beginning of each quarter.

B.	ADDITIONAL TERMS OF SETTLEMENT

Community Projects 

28.	[Insert language describing the community project(s) (CPs) in
general and referencing the approved final CPs specifically described in
Attachment A to the CAFO] 

29.	The Respondent shall submit a Community Project Completion Report 
Completion Report) to EPA within thirty (30) days of the completion of
the community projects described in Paragraph 28 above and Attachment A
to this CAFO.  The Completion Report shall contain the following
information:

A.  	A detailed description of the community project(s) as implemented;

B. 	A description of any operating or logistical problems encountered
and the solutions thereto;

C.  	Itemized final costs with copies of receipts for all expenditures;	


D.	Certification that the community projects have been fully implemented
pursuant to the provisions of this CAFO; and

A description of the environmental, emergency preparedness, and/or
public health benefits resulting from implementation of the community
projects.

30.	In itemizing its costs in the Completion Report, Respondent shall
clearly identify and provide acceptable documentation for all eligible
costs.  For purposes of this Paragraph, “acceptable documentation”
includes invoices, purchase orders, or other documentation that
specifically identifies and itemizes the individual costs of the goods
and/or services for which payment is being made.  Canceled drafts do not
constitute acceptable documentation unless such drafts specifically
identify and itemize the individual costs of the goods and/or services
for which payment is being made.

31.     The Respondent shall submit the following certification in the
Completion Report, signed by a responsible corporate official:  

I certify under penalty of law that I have examined and am familiar with
the information submitted in this document and all attachments and that,
based on my inquiry of those individuals immediately responsible for
obtaining the information, I believe that the information is true,
accurate, and complete.  I am aware that there are significant penalties
for submitting false information, including the possibility of fines and
imprisonment.

32.	After receipt of the Completion Report described in Paragraph 29
above, EPA will notify the Respondent, in writing, regarding:  (a) any
deficiencies in the Completion Report itself along with a grant of an
additional thirty (30) days for Respondent to correct any deficiencies;
or (b) indicate that EPA concludes that the project has been completed
satisfactorily; or (c) determine that the project has not been completed
satisfactorily.

33. 	If  EPA elects to exercise option (a) in Paragraph 32 above, i.e.,
if the Completion Report is determined to be deficient but EPA has not
yet made a final determination about the adequacy of completion itself,
EPA shall permit the Respondent the opportunity to object in writing to
the notification of deficiency given pursuant to Paragraph 32 within ten
(10) days of receipt of such notification.  EPA and the Respondent shall
have an additional thirty (30) days from the receipt by EPA of the
notification of objection to reach agreement on changes necessary to the
Completion Report.  If agreement cannot be reached on any such issue
within this thirty (30) day period, EPA shall provide a written
statement of its decision on adequacy of the completion of the community
projects to Respondent, which decision shall be final and binding upon
the Respondent.  The Respondent agrees to comply with any requirements
imposed by EPA as a result of any failure to comply with the terms of
this CAFO.  In the event the community projects are not completed as
contemplated herein, as determined by EPA, the conditions precedent to
the release and covenant not to sue provisions set forth in Paragraph 43
herein shall be deemed not to have been satisfied and Respondent is not
afforded the protections provided by those provisions.

Emission Unit Requirements

34.	Respondent agrees to immediately comply with all emission
limitations/standards and monitoring, recordkeeping, and reporting
requirements set forth in the Emission Unit Requirements Table, except
as provided for in this paragraph.  For those emission units identified
in Attachment B that require additional emission authorizations under
the federally-approved Texas SIP and/or additional monitoring,
recordkeeping, or reporting requirements to ensure continuous compliance
with emission limitations or standards, a written compliance schedule
has been developed as discussed in Paragraph 35 below.  For those
emission units identified in Attachment B that cannot achieve immediate
compliance, the written compliance schedule discussed in Paragraph 35
below includes provisions sufficient to bring those units into
compliance as expeditiously as possible.

Application for Title V Permit Revision

[Preamble- not be included in final CAFO - This section relates to the
Compliance Schedule which will form the basis for effecting the changes
identified by the audit report and the Emission Unit Requirements Table
(Attachment B) necessary to bring all emission units covered by
Respondent’s flexible permit back into compliance with the
requirements of the CAA and the federally-approved Texas SIP.  The
Compliance Schedule will be submitted by the Respondent to the
permitting authority, as part of an application for a Title V revision
request, and it will include, at a minimum, a detailed schedule meeting
the requirements of 30 TAC § 122.132 and 40 C.F.R. § 70.5(c)(8), to
obtain full emission requirements for all emission units regulated under
Respondent’s flexible permit, accomplished through applications for
amendments to existing or new authorizations under the
federally-approved Texas SIP, otherwise known as the appropriate
federally-enforceable non-Title V permits).  In addition, a compliance
certification will be required to be submitted with the application for
the Title V permit(s) revision(s)]

35.	Within thirty (30) days of the effective date of this CAFO,
Respondent agrees to submit an application to the appropriate permitting
authority for a Title V permit revision to incorporate the requirements
of the Compliance Schedule, attached as Attachment C to this CAFO and
incorporated herein by reference.  The Compliance Schedule is designed
to be at least as stringent as the requirements set for in 40 C.F.R. §
70.5(c)(8) and 30 TAC § 122.132 of the federally-approved Texas Title V
operating permits program.  

36.	Respondent agrees to comply with the requirements of the Compliance
Schedule set forth in Attachment C to this CAFO until the Compliance
Schedule is approved into  Respondent’s Title V permit(s) and the
revised Title V permit(s) becomes effective, after which time Respondent
will comply with the Compliance Schedule in the effective revised Title
V permit.    

37. 	In addition to the Compliance Schedule referenced above,
Respondent’s application for the Title V permit(s) revision shall
include an updated compliance certification that meets the requirements
of 30 TAC § 122.165 and 40 C.F.R. § 70.5(c)(9).     

38.	Nothing in the Compliance Schedule or this CAFO shall be interpreted
to limit the authority to impose more stringent requirements in
Respondent’s Title V permit(s) or in Respondent’s underlying
authorizations or requirements of the Texas SIP, including the
appropriate federally-enforceable non-Title V permit(s). 

	

Other Settlement Terms 

	39.  	Nothing in this agreement shall be construed as prohibiting,
altering or in any way limiting the ability of EPA to seek any other
remedies or sanctions available by virtue of the Respondent's violation
of this agreement or of the statutes and regulations upon which this
agreement is based, or for the Respondent's violation of any applicable
provision of law.

40.	Any public statement, oral or written, in print, film, or other
media, made by the Respondent making reference to the Community
Project(s) shall include the following language, "This project was
undertaken in connection with the settlement of an enforcement action
taken by the U.S. Environmental Protection Agency for violations of the
federal CAA.”

41.	This CAFO shall not relieve the Respondent of its obligation to
comply with all applicable provisions of federal, state or local law,
nor shall it be construed to be a ruling on, or determination of, any
issue related to any federal, state or local permit, nor shall it be
construed to constitute EPA approval of any equipment or technology
installed by the Respondent in connection with any Community Project
undertaken pursuant to this CAFO.  Nothing in this CAFO shall be
construed to prohibit or prevent the federal, state, or local government
from developing, implementing, and enforcing more stringent standards
through rulemaking, the permit process, or as otherwise authorized or
required.

42.	This document is a “Final Order” as that term is defined in the
CAA Penalty Policy for the purpose of demonstrating a history of
“prior such violations.”

IV. RELEASE AND COVENANT NOT TO SUE

	43.	In consideration of Respondent's obligations under this CAFO and
subject to the limitations and conditions herein, EPA releases and
covenants not to sue Respondent, with respect to the emission units
listed in the Emission Unit Requirements Table in Attachment B to this
CAFO, for the civil violations alleged herein that may have occurred
prior to the effective date of this CAFO.     

	44.		The release and covenant not to sue described above does not
extend to any other requirements of the Act, including but not limited
to requirements that relate to emission units at Respondent’s facility
which are not listed in the Emission Unit Requirements Table (Attachment
B to this CAFO).

45.	The release and covenant not to sue described herein covers
Respondent’s liability for civil violations with respect to an
emission unit listed in the Emission Unit Requirements Table (Attachment
B to this CAFO) if, and only if, Respondent complies with all terms and
conditions of this CAFO, including the receipt of a revised and
effective Title V permit incorporating the Compliance Schedule set forth
in this CAFO.

V.  RETENTION OF ENFORCEMENT RIGHTS

	46.	EPA does not waive any rights or remedies available to EPA for any
violations by the Respondent of any other Federal laws, regulations,
statutes, or permitting programs not the subject of this action.

47.	Nothing in this CAFO shall relieve Respondent of the duty to comply
with all applicable provisions of the CAA.

						VI.  COSTS	

	48.		Each party shall bear its own costs and attorneys fees.

IT IS SO AGREED:

FOR THE RESPONDENT:

Date:  ________________									                                        
                     

					Name of Authorized party: ___________________ 

						Title of Authorized Party:____________________

						[Name of Audit Participant]

FOR THE COMPLAINANT:

Date:  _________________										                                      
                     

						John Blevins

						Director

						Compliance Assurance and  

						    Enforcement Division



FINAL ORDER

	Pursuant to Section 113(d) of the CAA (Act), 42 U.S.C. § 7413(d), and
the Consolidated Rules of Practice Governing the Administrative
Assessment of Civil Penalties,      40 C.F.R. Part 22, the foregoing
Consent Agreement is hereby ratified.  This Final Order shall not in any
case affect the right of EPA or the United States to pursue appropriate
injunctive or other equitable relief or criminal sanctions for any
violations of law.  This Final Order shall resolve only those causes of
action alleged in this CAFO. The successful completion of the terms of
settlement set forth in Paragraphs 28 through 42 are conditions
precedent to the release and covenant not to sue provisions set forth in
Paragraphs 43 through 45 of the this CAFO.  Nothing in this Final Order
shall be construed to waive, extinguish, or otherwise affect
Respondent’s (or its officers, agents, servants, employees,
successors, or assigns) obligation to comply with all applicable
federal, state, and local statutes and regulations, including the
regulations that were the subject of this action.  The Respondent is
ordered to comply with the terms of settlement as they relate to the
assessment of civil penalties as set forth in the Consent Agreement.  In
accordance with 40 C.F.R. § 22.31(b), this Final Order shall become
effective upon filing with the Regional Hearing Clerk.

Dated __________________									             

							Michael Barra

							Regional Judicial Officer

							U.S. EPA, Region 6



CERTIFICATE OF SERVICE

	I hereby certify that on the               day of                      
   , 2010, the original and one copy of the foregoing Complaint and
Consent Agreement and Final Order (“Complaint and CAFO”) was hand
delivered to the Regional Hearing Clerk, U.S. EPA - Region 6, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733, and a true and correct
copy was delivered to the following individual(s) by the method
indicated below:

CERTIFIED MAIL - RETURN RECEIPT REQUESTED: ________________________

Name of authorized party: _______________________

Title of authorized party: ________________________

[Name of Audit Participant]

Address:

					

	

	U.S. EPA, Region 6

							Dallas, Texas	

 The Civil Penalty Inflation Adjustment Act of 1990, 28 U.S.C. § 2461,
as amended by 31 U.S.C. § 3701 provides for increases in the statutory
penalty provisions ($25,000) cited in the Clean Air Act Stationary
Source Civil Penalty Policy dated October 25, 1991 (CAA Penalty Policy).
 It provides for up to $25,000 per day of violation for violations
occurring on or before January 30, 1997; up to $27,500 per day for each
such violation occurring after January 30, 1997 through March 15, 2004;
up to $32,500 per day for each such violation occurring after March 15,
2004 through January 12, 2009; and up to $37,500 per day for each such
violation occurring after January 12, 2009.

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Attachment A to Audit Agreement

Tiered Ranking of Texas Flexible Permits

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Attachment B to Audit Agreement

Model Consent Agreement and Final Order (CAFO)

Texas Flexible Permit Audit Program

