Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 1 of 57
`
`EXHIBIT A
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 2 of 57
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`UNITED STATES OF AMERICA and
`STATE OF TEXAS,
`
`
`
`Plaintiffs,
`
`v.
`
`Civil Action No. 4:20-cv-02423
`
`___________________________________________
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`E. I. DU PONT DE NEMOURS AND
`COMPANY,
`
`
`§
`Defendant.
`__________________________________________§
`
`§§
`
`
`
`
`
` CONSENT DECREE
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 3 of 57
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`VI.
`
`JURISDICTION AND VENUE .........................................................................................2
`
`APPLICABILITY ................................................................................................................3
`
`DEFINITIONS .....................................................................................................................5
`
`INJUNCTIVE RELIEF REQUIREMENTS FOR COMPLIANCE ....................................6
`
`APPROVAL OF DELIVERABLES ...................................................................................7
`
`PERMITS .............................................................................................................................8
`
`VII.
`
`CIVIL PENALTY ................................................................................................................9
`
`VIII. REPORTING REQUIREMENTS .....................................................................................11
`
`IX.
`
`X.
`
`XI.
`
`STIPULATED PENALTIES .............................................................................................14
`
`FORCE MAJEURE ...........................................................................................................19
`
`DISPUTE RESOLUTION .................................................................................................22
`
`XII.
`
`INFORMATION COLLECTION AND RETENTION ....................................................24
`
`XIII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS ..........................................26
`
`XIV. COSTS ...............................................................................................................................28
`
`XV. NOTICES ...........................................................................................................................28
`
`XVI. EFFECTIVE DATE ...........................................................................................................31
`
`XVII. RETENTION OF JURISDICTION ...................................................................................31
`
`XVIII. MODIFICATION ..............................................................................................................32
`
`XIX. TERMINATION ................................................................................................................32
`
`XX.
`
`PUBLIC PARTICIPATION ..............................................................................................33
`
`XXI. SIGNATORIES/SERVICE................................................................................................33
`
`XXII. INTEGRATION ................................................................................................................34
`
`XXIII. FINAL JUDGMENT .........................................................................................................34
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`i
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 4 of 57
`
`
`
`XXIV. APPENDICES ...................................................................................................................34
`
`XXV. 26 U.S.C. § 162(f)(2)(A)(ii) IDENTIFICATION ………………………………………35
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`
`
`
`ii
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 5 of 57
`
`
`
`WHEREAS, concurrent with the lodging of this Consent Decree, Plaintiffs, the United
`
`States of America, on behalf of the United States Environmental Protection Agency (“EPA”), and
`
`the State of Texas (the “State”) by and through the Texas Commission on Environmental Quality
`
`(“TCEQ”), have filed a Complaint in this action against Defendant E. I. du Pont de Nemours and
`
`Company (“DuPont” or “Defendant”) for alleged environmental violations at its facility located in
`
`La Porte, Texas.
`
`WHEREAS, the Complaint alleges that DuPont has violated the following environmental
`
`statutes and their implementing federal and state regulations at its agrichemicals manufacturing
`
`facility located at 12501 Strang Road in La Porte, Harris County, Texas (“Facility”): the Clean
`
`Air Act (“CAA”), 42 U.S.C. §§ 7401-7671q; the Resource Conservation and Recovery Act
`
`(“RCRA”), 42 U.S.C. §§ 6901-6992k; and the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-
`
`1387; the Texas Clean Air Act (“TCAA”), Tex. Health & Safety Code §§ 382.001-.510; the Texas
`
`Solid Waste Disposal Act (“TSWDA”), Tex. Health & Safety Code §§ 361.001-.992; and Chapters
`
`7 and 26 of the Texas Water Code (“TWC”), Tex. Water Code ch. 7, 26.
`
`WHEREAS, DuPont ceased its agrichemical manufacturing operations at the Facility in
`
`November 2014, but it maintains a wastewater treatment system for third-party tenants at the
`
`Facility.
`
`WHEREAS, by agreeing to entry of this Consent Decree, DuPont does not admit any
`
`liability to the United States or the State arising out of the transactions or 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
`
`among the Parties, and that this Consent Decree is fair, reasonable, and in the public interest.
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`
`
`1
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 6 of 57
`
`
`
`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), and
`
`with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as
`
`follows:
`
`I. JURISDICTION AND VENUE
`
`1.
`
`This Court has jurisdiction over the subject matter of this action and over the
`
`Parties pursuant to 28 U.S.C. §§ 1331, 1345, 1355, and 1367; Section 113(b) of CAA, 42 U.S.C.
`
`§ 7413(b); Section 3008(a)(l) of RCRA, 42 U.S.C. § 6928(a)(l); and Section 309(b) and 311(n)
`
`of CWA, 33 U.S.C. §§ 1319(b) and 1321(n). Venue lies in this District pursuant to 28 U.S.C.
`
`§§ 1391(b) and (c) and 1395(a), because the violations alleged in the Complaint are alleged to
`
`have occurred in, and DuPont conducts business in, this judicial district. This venue is also
`
`consistent with Section 113(b) of CAA, 42 U.S.C. § 7413(b); Section 3008(a) of RCRA,
`
`42 U.S.C. § 6928(a); and Section 309 of CWA, 33 U.S.C. § 1319.
`
`2.
`
`For purposes of this Consent Decree, or any action to enforce this Consent
`
`Decree, DuPont consents to the Court’s jurisdiction over this Consent Decree and any such
`
`action and over DuPont, and DuPont consents to venue in this judicial district.
`
`3.
`
`For purposes of this Consent Decree, DuPont agrees that the Complaint states
`
`claims upon which relief may be granted pursuant to Section 113 of CAA, 42 U.S.C. § 7413;
`
`Sections 3004, 3005 and 3008 of RCRA, 42 U.S.C. §§ 6924, 6925 and 6928; Sections 309 and
`
`311 of CWA, 33 U.S.C. §§ 1319 and 1321; Section 382.085 of the TCAA, Tex. Health & Safety
`
`Code § 382.085; Sections 7.101 and 26.121 of the TWC, Tex. Water Code §§ 7.101 and 26.121;
`
`and applicable state and federal regulations.
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`
`
`2
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 7 of 57
`
`
`
`II. APPLICABILITY
`
`4.
`
`The obligations of this Consent Decree apply to and are binding upon the United
`
`States, the State, and upon DuPont and any successors, assigns, or other entities or persons
`
`otherwise bound by law.
`
`5.
`
`At least thirty 30 Days prior to any proposed transfer of ownership or operation of
`
`the assets comprising DuPont’s Facility (“Transfer”), or within such shorter time as the United
`
`States and the State may agree to in writing, DuPont shall provide a copy of this Consent Decree
`
`to the proposed transferee and shall provide written notice of the prospective Transfer, together
`
`with a copy of the relevant portions of the proposed Transfer agreement, to the United States and
`
`the State in writing, in accordance with Section XV (Notices). No Transfer, whether in
`
`compliance with the procedures of this Paragraph or otherwise, relieves DuPont of its obligation
`
`to ensure that the terms of this Decree are implemented, unless (i) the transferee agrees to
`
`undertake the obligations of this Consent Decree and to be substituted for DuPont as a Party
`
`under this Decree and thus bound by the terms hereof, (ii) the United States and the State consent
`
`to relieve DuPont of its obligations or this Court orders such substitution over the objection of
`
`the Plaintiffs through the process set forth in Paragraph 7, and (iii) the Court modifies this
`
`Consent Decree and the transferee becomes a Party to this Consent Decree.
`
`6.
`
`After the submission to the United States and the State of the notice of the
`
`proposed Transfer, as required by Paragraph 5, DuPont may request the Plaintiffs’ consent to file
`
`a joint motion requesting the Court to approve a modification substituting the transferee for
`
`DuPont as the Defendant responsible for complying with all or some of the obligations of the
`
`Consent Decree. Plaintiffs may consent to such a filing or the United States shall notify DuPont,
`
`after consultation with the State, that Plaintiffs do not agree to modify the Consent Decree to
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`
`
`3
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 8 of 57
`
`
`
`make the transferee responsible for complying with the obligations of the Consent Decree, as
`
`requested.
`
`7.
`
`If, for any reason, DuPont does not secure the agreement of Plaintiffs to file a
`
`joint motion within 30 Days after requesting the Plaintiffs’ consent to file a joint motion under
`
`Paragraph 6, DuPont and the transferee may file, without the agreement of the United States or
`
`the State, a motion requesting the Court to approve a modification substituting the transferee for
`
`DuPont as the Party responsible for complying with some or all of the obligations of the Consent
`
`Decree. The United States or the State may file an opposition to the motion objecting to the
`
`Transfer (a) because EPA or TCEQ has determined that the transferee lacks the financial or
`
`technical ability to assume the obligations of the Decree; (b) because the proposed modification
`
`fails to effectively transfer all of the Consent Decree’s obligations to the transferee; or (c) for any
`
`other good cause. The motion to modify the Decree shall be granted unless: (i) DuPont and the
`
`transferee fail to show that the transferee has the financial and technical ability to assume the
`
`obligations of the Decree, as requested; (ii) DuPont and the transferee fail to show that the
`
`modification language effectively transfers such obligations to the transferee; or (iii) the Court
`
`finds other good cause for denying the motion.
`
`8.
`
`DuPont shall provide a copy of relevant portions of this Consent Decree to all
`
`officers, employees, and agents that are responsible for compliance with any provision of this
`
`Decree, as well as to any vendor, supplier, or contractor retained to perform work required under
`
`this Consent Decree. DuPont shall condition any such contract upon such performance of the
`
`work in conformity with the terms of this Consent Decree. A contractor’s failure to perform the
`
`work in conformity with the terms of this Decree shall not excuse DuPont’s obligations under
`
`this Decree.
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`
`
`4
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 9 of 57
`
`
`
`9.
`
`In any action to enforce this Consent Decree, DuPont 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.
`
`III. DEFINITIONS
`
`10.
`
`Terms used in this Consent Decree, including the Appendices hereto, that are
`
`defined in the CAA, RCRA, CWA, TCAA, TSWDA, TWC, or in federal and state regulations
`
`promulgated thereunder, shall have the meanings assigned to them in the applicable statute or
`
`such regulations, unless otherwise provided in this Decree. Whenever the terms set forth below
`
`are used in this Consent Decree, the following definitions shall apply:
`
`a. “Complaint” shall mean the complaint filed by the United States and the State in
`
`this action;
`
`b. “Consent Decree” or “Decree” shall mean this Consent Decree and all
`
`appendices attached hereto listed in Section XXIV (Appendices);
`
`c. “Date of Lodging” shall mean the date on which the United States initially lodges
`
`the Consent Decree with the Court prior to commencement of the public
`
`comment period required by Section XX (Public Participation) of this Consent
`
`Decree;
`
`d. “Day” or “day” shall mean a calendar day unless expressly stated to be a
`
`business day. In computing any period of time under this Consent Decree, where
`
`the last day would fall on a Saturday, Sunday, or federal or State of Texas
`
`holiday, the period shall run until the close of business of the next business day;
`
`e. “Defendant” or “DuPont” shall mean E.I. du Pont de Nemours and Company;
`
`f.
`
`“EPA” shall mean the United States Environmental Protection Agency and any
`
`of its successor departments or agencies;
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`
`
`5
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 10 of 57
`
`
`
`g. “Effective Date” shall have the definition provided in Section XVI (Effective
`
`Date);
`
`h. “Facility” shall mean portions of the manufacturing plant located at 12501 Strang
`
`Road, La Porte, Harris County, Texas, owned or operated by DuPont (or its
`
`contractors), including operating and closed units or equipment, but excluding
`
`units or equipment owned or operated by any tenant, including but not limited to,
`
`The LYCRA Company, LLC, The Chemours Company FC, LLC, and Kuraray
`
`America, Inc.;
`
`“Month” or “monthly” shall mean a calendar month;
`
`“Paragraph” shall mean a portion of this Decree identified by an Arabic numeral;
`
`i.
`
`j.
`
`k. “Parties” shall mean the United States of America, the State of Texas, and
`
`DuPont;
`
`l.
`
`“Plaintiff(s)” shall mean the United States of America and the State of Texas;
`
`m. “Section” shall mean a portion of this Decree identified by a roman numeral;
`
`n. “TCEQ” shall mean the Texas Commission on Environmental Quality, an agency
`
`of the State of Texas, or any successor departments or agencies of TCEQ;
`
`o. “Texas” or “the State” shall mean the State of Texas, acting on behalf of the
`
`TCEQ;
`
`p. “United States” shall mean the United States of America, acting on behalf of
`
`EPA.
`
`IV. INJUNCTIVE RELIEF REQUIREMENTS FOR COMPLIANCE
`
`11.
`
`Polyether Polyols Production MACT. DuPont shall undertake the measures set
`
`forth in Appendix A of this Consent Decree relating to the Polyether Polyols Production MACT
`
`standards set forth in 40 C.F.R. Part 63, Subpart PPP (“PPP MACT”), at the Facility.
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`
`
`6
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 11 of 57
`
`
`
`12.
`
`Clean Water Act Requirements. DuPont shall undertake the measures set forth in
`
`Appendix B of this Consent Decree relating to the CWA and State law at the Facility.
`
`13.
`
`Resource Conservation and Recovery Act Requirements. DuPont shall undertake
`
`the measures set forth in Appendix C of this Consent Decree relating to the RCRA and State law
`
`at the Facility.
`
`V. APPROVAL OF DELIVERABLES
`
`14.
`
`DuPont shall submit each plan, report, or other submission required by this
`
`Consent Decree to Plaintiffs whenever and in the manner such a document is required to be
`
`submitted for review or approval pursuant to this Consent Decree. Except as provided otherwise
`
`in Appendix C (RCRA), EPA shall be the approving agency for deliverables under this Decree.
`
`Upon review, EPA, after consultation with TCEQ (or the reverse as provided in Appendix C),
`
`shall in writing: (a) approve the submission; (b) approve the submission upon specified
`
`conditions; (c) approve part of the submission and disapprove the remainder; or (d) disapprove
`
`the submission.
`
`15.
`
`If the submission is approved pursuant to Paragraph 14, DuPont shall take all
`
`actions required by the plan, report, or other document, in accordance with the schedules and
`
`requirements of the plan, report, or other document, as approved. If the submission is
`
`conditionally approved or approved only in part pursuant to Paragraph 14(b) or (c), DuPont shall,
`
`upon written direction from EPA, after consultation with TCEQ (or the reverse as provided in
`
`Appendix C), take all actions required by the approved plan, report, or other item that EPA, after
`
`consultation with TCEQ (or the reverse as provided in Appendix C), determines are technically
`
`severable from any disapproved portions, subject to DuPont’s right to dispute only the specified
`
`conditions or the disapproved portions, under Section XI (Dispute Resolution).
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`
`
`7
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 12 of 57
`
`
`
`16.
`
`If the submission is disapproved in whole or in part pursuant to Paragraph 14(c)
`
`or (d), DuPont shall, within sixty (60) days or such other time as the Parties agree to in writing,
`
`correct all deficiencies and resubmit the plan, report, or other item, or disapproved portion
`
`thereof, for approval, in accordance with the preceding Paragraphs. If the resubmission is
`
`approved in whole or in part, DuPont shall proceed in accordance with the preceding Paragraph.
`
`17.
`
`Any stipulated penalties applicable to the original submission, as provided in
`
`Section IX, shall accrue during the sixty (60) day period or other specified period, but shall not
`
`be payable unless the resubmission is untimely or is disapproved in whole or in part; provided
`
`that, if the original submission was so deficient as to constitute a material breach of DuPont’s
`
`obligations under this Decree, the stipulated penalties applicable to the original submission shall
`
`be due and payable notwithstanding any subsequent resubmission.
`
`18.
`
`If a resubmitted plan, report, or other item, or portion thereof, is disapproved in
`
`whole or in part, EPA, after consultation with TCEQ (or the reverse as provided in Appendix C),
`
`may again require DuPont to correct any deficiencies, in accordance with the preceding
`
`Paragraphs, or may itself/themselves correct any deficiencies, subject to DuPont’s right to invoke
`
`Dispute Resolution under Section XI and the right of the United States and the State to seek
`
`stipulated penalties as provided in the preceding Paragraphs and Section IX.
`
`VI. PERMITS
`
`19.
`
`In any instance where otherwise applicable law or this Consent Decree requires
`
`DuPont to secure a federal, state or local permit to authorize construction or operation of any
`
`device, including all preconstruction, construction, and operating permits required under state or
`
`local law, DuPont shall submit timely and complete applications and take all other actions
`
`necessary to obtain all such permits or approvals.
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`
`
`8
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 13 of 57
`
`
`
`20. When permits are required under this Consent Decree, DuPont shall complete and
`
`submit applications for such permits to the appropriate authorities to allow sufficient time for all
`
`legally required processing and review of the permit request, including requests for additional
`
`information by the permitting authorities. DuPont may seek relief under the provisions of Section
`
`X (Force Majeure) for any delay in the performance of any such obligation resulting from a
`
`failure to obtain, or a delay in obtaining, any permit or approval required to fulfill such
`
`obligation, if DuPont has submitted timely and complete applications and has taken all other
`
`actions necessary to obtain all such permits or approvals. Any failure by DuPont to submit a
`
`timely permit application shall bar any use by DuPont of Section X (Force Majeure) of this
`
`Consent Decree, where a Force Majeure claim is based on that permit delay.
`
`VII. CIVIL PENALTY
`
`21. Within thirty (30) Days after the Effective Date of this Consent Decree, DuPont
`
`shall pay a civil penalty to the United States and to the State, as provided below. Failure to
`
`timely pay the civil penalty required herein shall render DuPont liable for all charges, costs, fees,
`
`and penalties established by law for the benefit of a creditor or of the United States or the State
`
`in securing payment.
`
`22.
`
`Payment to the United States. DuPont shall pay to the United States a civil
`
`penalty amount of $1,710,000.00, together with interest accruing from the Effective Date, at the
`
`rate specified in 28 U.S.C. § 1961. If any portion of the civil penalty due to the United States is
`
`not paid when due, DuPont shall pay interest on the amount past due accruing from the Date of
`
`Lodging of the Consent Decree through the date of payment at the rate specified in 28 U.S.C.
`
`§ 1961 as of the Date of Lodging. DuPont shall pay the civil penalty and any associated interest
`
`by FedWire Electronic Funds Transfer (“EFT”) to the U.S. Department of Justice in accordance
`
`with written instructions to be provided to DuPont by the Financial Litigation Unit (“FLU”) of
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`
`
`9
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 14 of 57
`
`
`
`the U.S. Attorney’s Office for the Southern District of Texas, after the Effective Date. The
`
`payment instructions provided by the FLU will include a Consolidated Debt Collection System
`
`(“CDCS”) number, which DuPont shall use to identify all payments required to be made in
`
`accordance with this Consent Decree. The FLU will provide the payment instructions to:
`
`Patricia McGee
`Corporate Counsel
`Corteva Legal
`974 Centre Road Bldg. 735
`Wilmington DE 19805
`patricia.mcgee@corteva.com
`
`on behalf of DuPont. DuPont may change the individual to receive payment instructions on its
`
`behalf by providing written notice of such change to the United States and EPA in accordance with
`
`Section XV (Notices).
`
`23.
`
`At the time of payment to the United States, DuPont shall send notice that
`
`payment has been made, together with a copy of the EFT authorization form and the EFT
`
`transaction record to (i) EPA by email to cinwd_acctsreceivable@epa.gov and via regular mail
`
`to:
`
`
`
`
`
`EPA Cincinnati Finance Office
`26 Martin Luther King Drive
`Cincinnati, Ohio 45268
`
`
`
`
`
`and (ii) to the Department of Justice via email or regular mail in accordance with Section XV
`
`(Notices); and (iii) to EPA in accordance with Section XV (Notices). Such notice shall state that
`
`the payment is for the civil penalty owed pursuant to the Consent Decree in United States and
`
`State of Texas v. E. I. du Pont de Nemours & Company, and shall reference the civil action number,
`
`CDCS Number, and DOJ case number 90-5-2-1-08181/3.
`
`24.
`
`Payment to the State. Within thirty (30) Days after the Effective Date, DuPont
`
`shall pay the total amount of $1,710,000.00, which includes a civil penalty of $1,485,000.00 and
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`
`
`10
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 15 of 57
`
`
`
`attorneys’ fees of $225,000.00, to the State of Texas, together with interest accruing on those
`
`amounts from the Effective Date, at the rate specified in 28 U.S.C. § 1961. If any portion of the
`
`civil penalty due to the State is not paid when due, DuPont shall pay interest on the amount past
`
`due accruing from the Date of Lodging of the Consent Decree through the date of payment at the
`
`rate specified in 28 U.S.C. § 1961 as of the Date of Lodging. DuPont shall pay the civil penalty
`
`and attorneys’ fees, and any associated interest, by Wire Transfer or Automated Clearing House
`
`(ACH) Transfer to the Office of the Attorney General, State of Texas, in accordance with written
`
`instructions to be provided to DuPont, following entry of the Consent Decree, by the Office of
`
`the Attorney General.
`
`25.
`
`At the time of the payment to the State of Texas, DuPont shall send notice that
`
`payment has been made, together with a copy of the Wire Transfer or ACH authorization form
`
`and transaction record, to the Office of the Attorney General by email to
`
`Thomas.Edwards@oag.texas.gov and Jake.Brown@oag.texas.gov, and via regular mail to the
`
`Environmental Protection Division, Office of the Attorney General, in accordance with Section
`
`XV. Such notice shall state that the payment is for the civil penalty, attorneys’ fees, and interest
`
`owed pursuant to the Consent Decree in United States and State of Texas v. E. I. du Pont de
`
`Nemours & Company, and shall reference the civil action number and AG No. 15-3564919.
`
`26.
`
`DuPont shall not deduct any penalties paid under this Decree pursuant to this
`
`Section VII (Civil Penalty) in calculating its federal, State, or local income tax.
`
`VIII. REPORTING REQUIREMENTS
`
`27.
`
`In addition to any other express reporting requirement in this Consent Decree, on
`
`each February 28 and August 31 following the Effective Date of this Consent Decree until
`
`termination of this Decree pursuant to Section XIX (Termination), DuPont shall submit to EPA
`
`and TCEQ a semi-annual progress report that shall describe DuPont’s actions taken and to be
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`
`
`11
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 16 of 57
`
`
`
`taken to comply with this Consent Decree. The progress report due February 28 shall provide
`
`information for the preceding period from July 1 through December 31. The progress report due
`
`August 31 shall provide information for the preceding period from January 1 through June 30.
`
`The first progress report shall provide information from the Effective Date until December 31 or
`
`June 30, whichever occurs first. If DuPont indicates in a progress report that an obligation under
`
`this Consent Decree has been completed and EPA, in consultation with TCEQ (or the reverse as
`
`provided in Appendix C), agrees that the obligation has been completed, DuPont is not required
`
`to include the completed obligation in future progress reports. Each progress report shall include:
`
`a. a description of each requirement of this Consent Decree (or any submission
`
`made thereunder) that was completed during the reporting period, including the
`
`date such requirement was completed;
`
`b. all information required to be reported in the progress report under Appendices A
`
`through C of this Consent Decree (which may reference specific information
`
`previously submitted to EPA and TCEQ pursuant to this Consent Decree without
`
`re-submitting same);
`
`c. a summary of the emissions data, including a separate identification of any
`
`exceedance(s) of Consent Decree emission limitations or standards for the
`
`Facility set forth or established pursuant to Sections IV-VI of this Consent
`
`Decree and Appendices A-C for that time period; and
`
`d. a description of any problems anticipated with respect to meeting the
`
`requirements of Sections IV-VI of this Consent Decree, together with
`
`implemented or proposed solutions.
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`
`
`12
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 17 of 57
`
`
`
`28.
`
`In any periodic progress report submitted pursuant to this Section, DuPont may
`
`incorporate by reference information previously submitted under its Title V permitting
`
`requirements, provided that DuPont attaches the Title V permit report and provides a specific
`
`reference to the provisions of the Title V permit report that are responsive to the information
`
`required in the periodic progress report.
`
`29.
`
`If DuPont violates, or has reason to believe that it will more likely than not
`
`violate, any requirement of this Consent Decree, DuPont shall notify the United States and the
`
`State of such violation and its duration or anticipated likely duration, in writing, within fifteen
`
`(15) business Days of first becoming aware of the violation or potential violation, with an
`
`explanation of the cause or likely cause of the violation and any measures taken, or to be taken,
`
`to prevent or minimize such violation. If the cause of a violation cannot be fully explained at the
`
`time the report is due, DuPont shall so state in the report. DuPont shall investigate the cause of
`
`the violation and shall then submit an amendment to the report, including a full explanation of
`
`the cause of the violation, within fifteen (15) Days of becoming aware of the cause of the
`
`violation. Nothing in this Paragraph or the following Paragraph relieves DuPont of its obligation
`
`to provide the notice required by Section X (Force Majeure) of this Consent Decree.
`
`30. Whenever any violation of this Consent Decree or any applicable permit or any
`
`other event related to DuPont’s performance under this Consent Decree, or the performance of
`
`its Facility, poses an immediate threat to the public health or welfare of the environment, DuPont
`
`shall notify EPA and TCEQ orally or by electronic or facsimile transmission as soon as possible,
`
`but no later than 24 hours after DuPont first knew of, or should have known of, the violation or
`
`event. This notification procedure is in addition to the requirements set forth in the preceding
`
`Paragraph.
`
`U.S. & Texas v. E. I. du Pont de Nemours and Co.
`
`
`
`13
`
`

`

`Case 4:20-cv-02423 Document 3-1 Filed on 07/09/20 in TXSD Page 18 of 57
`
`
`
`31.
`
`All reports shall be submitted to the persons designated in Section XV (Notices)
`
`of this Consent Decree.
`
`32.
`
`Each report or notice submitted by DuPont under this Section shall be signed by a
`
`responsible corporate official of DuPont and shall include the following certification:
`
`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 this document and its
`attachments were prepared either by me personally or under my direction or supervision
`in a manner designed to ensure that qualified and knowledgeable personnel properly
`gathered, evaluated, and presented the information contained therein. I further certify,
`based on my personal knowledge or on my inquiry of the person or persons who manage
`the system, or those persons directly responsible for gathering the information, that the
`information submitted is true, accurate, and complete. I am aware that there are
`significant penalties for submitting false information, including the possibility of fines
`and imprisonment for knowing violations.
`
`
`This certification requirement does not apply to emergency or similar notifications where
`
`compliance would be impractical.
`
`33.
`
`The reporting requirements of this Consent Decree do not relieve DuPont of any
`
`additional reporting obligations required by the CAA, RCRA, CWA, TCAA, TSWDA, TWC, or
`
`their implementing regulations, or of any other federal, state, or local law, regulation, permit, or
`
`other requirement. The reporting requirements of this Section are in addition to any other reports,
`
`plans, or submissions required by other Sections of this Consent Decree.
`
`34.
`
`Any information provided pursuant to this Consent Decree may be used by the
`
`United States or State in any proceeding to enforce the provisions of this Consent Decree and as
`
`otherwise permitted by law.
`
`IX. STIPULATED PENALTIES
`
`35.
`
`DuPont shall be liable for stipulated penalties to the United States and to the State
`
`for violations of this Consent Decree as specified below