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Oral Communications r - T 7 r:l 1 i d`CQl C0rriYY1vIf1.IGal'lMS i _j 1 Ca.Thl t-t -e19 9-er 5 c statavinavi My name is Cathy Helgerson and I have been a resident of Cupertino for 28 years. I contacted the EPA Region 9 Water Department and Air Divisions about Lehigh Southwest Company last year 2009 and asked them to do an investigation they kept dragging their feet with what seemed to be no results. I went to the local EPA Enforcement Department and they also seemed to be slow to action. The next step was to contact the EPA Federal Enforcement Department and this is when things started really move. I requested the State Water Resource Control Board to conduct an investigation and they were also stalling complaining about furrow days and not having the time and manpower to do the investigation and they also refused to use their own Tabs and resources to do the job. I became very frustrated and decided it was time to bring in the EPA Region 9 Enforcement Division and the Federal EPA Enforcement Divisions to move things along and they did. The EPA Region 9 Water Division finally hired a consultant to inspect the Lehigh Southwest Cement and Quarry and 't was determined that Lehigh Southwest Company had been in violation of the Clean 'r Act. The State Water Resource Control Board served Lehigh Southwest Company on March 26, 2010 with the violation report, pictures and the required corrective action measures and dates that needed to be met with steep fines for non compliance. The EPA Region 9 Air Division finally served Lehigh Southwest Company March 9, 2010 with violations of the Clean Air Act and their failure to apply for a PSD Permit with the use of the Best Available Technology to control the emissions at the plant. The increases at the cement plant for the NOX and SO2 had been way over 40 additional tons per year each ongoing and Lehigh and the BAAQMD could not have not been aware of these violations and it would seem deliberately hide them from the public. This matter is still under investigation with the Federal EPA Legal Department and I have been told it is confidential and that I must petition through the Freedom of Information Act Department to get my questions answered. Lehigh Southwest Cement obtained a deficient Title V Permit and is operating illegally this is so stated in the air report. I have asked for a more extended investigation to be conducted immediately. The EPA Region 9 and the Federal EPA need to test the plant for all the pollution and make this public information in order to make sure that the public health and well being is not being violated. The Lehigh Southwest Cement and Quarry should be closed down immediately and these violations considered criminal acts with stiff fines and the violators should be in prison. The Citizens Demand justice and the playing down of any of these violations should not be tolerated in any way. The City of Cupertino can no longer agree with the BAAQMD or other agencies that say that Lehigh Southwest Cement and Quarry are in full compliance of the Title V Permit this has been proven to be incorrect. Lehigh is operating illegally and are breaking the law why is no one closing them down? They are a poor steward of the land and have been in violation for decades and no one has done anything to stop them. Who will see that justice is served and how soon? City of Cupertino where are you? 1 O ro i C *`' • ' � ► a m y rig() l exSari Ark iilii► ,,/J UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION iX 75 Hawthorne Street San Francisco, CA 94105 -3901 MAR 1 0 2010 C'ER 1 IFIEI) MAIL NO. 7003 3110 0006 2000 8625 RE"T"URN RECEIPT REQUESiED IN REPLY: AIR - REFER 10: Docket No. R9-10-02 David Vickers President Lehigh Southwest Cement Company 12667 .Alcosta Blvd. Bishop Ranch 15 San Ramon. CA 94583 Dear Mr. Vickers: Re: Lehigh Southwest Cement Company Notice and Finding of Violation Dear Mr. Vickers: Enclosed is a copy of a Notice of Violation and Finding of Violation ("NOV/F0 ") issued pursuant to sections 113(0(11. 1 13(a)(3) and 167 of the Clean Air Act, 42 U.S.C. §§ 7401 -7671q (the "Act "), notifying you that the United States Environmental Protection Agency ( "EPA "). Region IX. finds that Lehigh Southwest Cement Company ("Lehigh - ) has violated certain sections of the Act's Prevention of Significant Deterioration of Air Quality and Fide V Operating Permit Program, at its Portland cement plant located in Cupertino. California (the "Facility "). You should be aware that section 1 1 3(a)(1 ). 1 13(a)(3) and 167 oldie Act authorizes EPA to issue an order requiring compliance with the requirements of the Act. issue an administrative penalty order. or commence a civil action seeking an injunction and/or a civil penalty. Furthermore. section 1 13(c) of the Act provides for criminal penalties in certain cases. In addition. section 306 of the Act. 42 U.S C. 7606. the regulations promulgated thereunder (2 C.F.R. Part 1801. and Executive Order 11738 provide that facilities to be utilized in federal contracts, grants and loans must he in full compliance with the Act and all regulations promulgated pursuant to it. A violation of the Act may result in the Cupertino Plant being declared ineligible for participation in any federal contract. grant. or loan. ?'rrntJ r■r 16, 1.'1,•,/ 11 you wish to discuss the enclosed NOV /FOV. you may request a conference \with EPA within ten (10) working days of receipt of this NOV!FOV. The conference will afford Lehigh an opportunity to present information bearing on the finding of violation. the nature of the violations. and any efforts it may have taken or proposes to take to achieve compliance. 11 you have any questions pertaining to this NOVIFOV. please contact Charles Aldred of the Air Enforcement Office at (-f 15) 972 -3986. or have your attorney contact Ivan Lieben of the Office ice of Regional Counsel at (41 5) 97 Thank you for your cooperation in this matter. Sincerely. •1 Deborah Jorda Director. Air Division Enclosure cc c\ /enc: B: \AQMD C'ARB •l►ttW� j�`fi�/rf = UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ." REGION IX 75 Hawthorne Street San Francisco, CA 94105 -3901 MAR 1 0 )O1} IN REPLY: AIR -5 REFER TO: llocket No. R9 -10 -02 Jack Broadbent ;fir Pollution Control C)tlicer Bay Area Air Quality Management District 939 Ellis St. San Francisco. CA 94109 Dear h y r roadhent: ,Inclosed for your information is a copy of a Notice of Violation and Finding of Violation ( "NO\T/FOV ") that the United States Environmental Protection Agency ( "EPA ). Region IX, issued to the Lehigh Southwest Cement Company ("Lehigh") for violations of the Clean Air Act ("Act') at Lehi`�h's Portland cement plant in Cupertino. California (the "Facility'). The purpose of the NOV /FUV is to notify Lehigh that EPA finds that it has violated the Prevention of Significant Deterioration and Title V Operating Permit Proiram requirements of the Act at the Facility. The violations are set forth more specifically in the enclosed NOV/FOV. The NOV%FOV has been issued pursuant to sections 1 1 3(a)(1 ). 1 1 3(a)(3) and 167 of the ;Act. 42 U.S.C. ti 7401- 7671q. The Act also provides that after 30 dz)s from the issuance of an NOV. EPA may determine i f any action will he taken pursuant to Section 1 1 3 of the Act. If you have any questions concerning this NOV FOV. please contact Charles Aldred of the Region 9 Air Enforcement Office at (-1 15) 972-3986. or Sincerely % . Dehor�;h Jor an Director. Air Division Enclosure UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IX 75 Hawthorne Street San Francisco, CA 94105 -3901 MAR 1 0 no IN REPLY: AIR -5 REFER TO: Docket No. R9-10-02 .1im Ryden Enforcement Division Chief California Air Resources Board P.O. Box 2$15 Sacramento_ (_'A 95812 Dear \lr. Ryden: Enclosed for your information is a copy of a Notice of Violation and Finding of Violation ( "NOV /FOV ") that the United States Environmental Protection Agency ("EPA ). Region IA. issued to the Lehigh Southwest Cement Company ("Lehigh - ) for violations of the Clean Air Act ("Act ") at Lehiyh's Portland cement plant in Cupertino. California (the "Facility "). The purpose of the NOV /FOV is Io notify Lehigh that EPA finds that it has violated the Prevention of Significant Deterioration and "I itic V Operating Permit Program requirements of the Act at the Facility. The violations are set forth more specifically in the enclosed NOV FOV. The NOV/FOV has been issued pursuant to sections 1 13(x)(1 ). 1 13(a)(3) and 167 of the Act. 42 U.S.C. ti 7301- 7671q. - Me Act also provides that atter 30 days from the issuance of an NOV. EPA ma■ determine if any action \.ill be taken pursuant to Section 113 of the Act. ifvou ha\ any questions concerning this NOV'FOV. please contact Charles Aldred of the Region 9 Air Enforcement Office at (315) 972 -3986. or Sincerely. /4„1 Deborah .lord• Director. Air Division Enclosure UNITED 3TATES ENVIRONMENTAL PROTECTION AGENCY REG1C IX In the Matter of: . LEHICH SOUTHWEST CEMENT COMPANY ) Docket No. R9-10-02 NOTICE OF VIOLATION ILroceedind under Section 113(a AND FTNDING OF of the Clean Air Act, vTnLATIoN 12 U.S.C. § 9613(a) ) NOTICE OF VIOLATION/FINDING OF VIOLATION This Notice of Violation and Finding of Violation NOV/F0V") is issued to the Lehigh Southwest Cement Company :'Lehigh") for violations of the Clean Air Act ("CAA" or the "Act"), as amended, 42 U.S.C. §§ 7401-7671q, at its Portland manufacturing facility located in Cupertino, California the "Facility"). Lehigh violatEd the Prevention of Significant Deterioration ("PSD") and Title Cperating Permit Program requirements of the Act at the F,=cility. This NOV/FCV is issued pursuant to Sections 113(a) (1), 113(a) (3) and 167 of the Act. Section 113(5)(1) requires the Administrator of the United States t.rilement Protection Agency "EPA") to notify anv person sne fih•s in violation of an applicable implementation plan or a permit. The federal PSD regulations also clarify that failure to complv with the PS0 provisions renders a source subject to enfrcement under Section 113 of the Act. See 40 C.F.R. § 52.23. The authority to issue this NOV has been delegated to the Regional Administrator 01 EPA Region 9 and further re-delegated to the El of the Pdr rdvisLon in EPA Region 9. SUMMARY OF VIOLATIONS The Facility is a Portland cement manufacturing plant cc of one kiln, and associated equipment used to produce 7iinker, including a preheater tower, precalciner, clinker ).7(Juie..r, induced draft ("ID") and other fans, cement finish mills, and extensive sections of duci Tnis L0V/FOV concerns a series of physical modifications ,- h== T itv from 1996 through 1599. Lehigh subsequently i.perated r.he Facility with the modified equipment which resulted in significant net emission increases. As a result, the projects, either individually ).'7.)r in the aggregate, caused an increase in production of cement and an increase in emissions of air pollutants to the atmosphere from the Facility. The i;acility is Located in an area that has at all relevant tiimes been classified as attainment for nitrogen dioxide ("N(n ahi slfur dioxide ("SO:'). Accordingly, the PSID provisions of Part 9, Title I of the Act apply to operations .at the Facility f.:7:1 ixides of nitro,den ("NC.:") and SOissions. EPA has getermined that the physical or operatonal changs identifjeJi in . Jhis N1DV/F0V, either individually or in the aggregate, were maior mcations for PSD purposes since the Facility significantly increased both actual and potential emissions of NO, and SO as a resub the changes. Mgreover, Lehigh failed . .c apply for one : permits for t mogirical covering NO, and :30 • , ._:, „.,..,=- 71 f r:.:1:n_ - !:)r - -_!-,-- .7):: ) 1 ,Ttissins. Lehigh's failure to apply for a PSD permit or install and :Derate additional emissions controls meeting best available c technology ("BACT") covering these pollutants when it cnstructed and began operating tne physical or cperational :iu was a violation qf the FSE requirements df the Act. Lenidh has also , ..olated the Title ',., , Dperatind Permit Prodram requirements of the Act set forth at 42 U.S.C. §§ 7461- 7661f, the tederal Title V regulations set forth at 10 C.F.R. Part 70, and the approved Bay Area Air Quality Management :strict ( Title V c set forth at Regulation 2 1"=e , S. EAAQMD has administered an appr=ed Title V Operating Permit Program since November 29, 1994. Lehigh's failure tr, :1_ PS0 requirements in its application submitted to BAAQMD Title V permit, supplemenr or correct that application include PSD requirements, cr ,btain a Title V permit that E PSD requirements after the cnstruotion and :pa-rat ioti of the physical or operational changes are violations of Title V requirements. See 42 U.S.C. §§ 7661b(a)-(b) and ,661c(a); 40 C.F.R. §§ 70.5(a) (c); EAQMEI Regulati= 2 Rule 6. .=,s A 17-S'..111 Lehigh obtained a deficient Title 7 germit, i.e., o,ne that the not include all applicable requirements, and herefore is operating the Facility without a valid Title V permit in violation of 42 U.S.C. 5§ 7661a, - 661t), and 7661c; 40 7.F.R. 5§ 70.1, 70.5 and 70.6; and BAAQ• D Regulation 2 ';. STATUTORY & REGULATORY BACKGROUND National Ambient Air Quality Standards The Administrator of EPA, pursuant to authority under Section 109 of the Ac7t, 42 1.''- f 7469, has promulgated National Ambient Air Quality Standards ("NAAQS") for certain criteria pcL relevant to :his NOV/20V, including 110: and SC_ Se 40 C.F.R. § 50.4, 50.5, 50.7, 50.8, 50.9, and 50.10. Pursuant to Section 107(d) of the Act, § 7407(d), the Administrator promulgated iists of attainment status designations for each air quality control regicn (CPI) in every state. These lists identify the atainment status of each AQOP for each of the criteria pollutants. The attainment status designations for the Thiifornia AQCRs are listed at 40 C.F.R. § 81.305. Prevention of Significant Deterioration 3. Section 110 of the Act, 42 U.S.C• , ss; 7410, requires each state to adc and submit to EPA a plan that pro7ides fur the implementation, maintenance and enforcement of primary and sec NAAQS in the state. iron at.)r by EPA, the nlan Tomes part of the applicable state implementation plan ("SIP") tha , z:tate. 4. Seclii,on 110(a) (2) (0) of the Ant, 42 U.S.C. § 7410(a) (2) (0), requires that each SIP include a PSEJ permit program as provided in Part 0 of Title 1 of the Act, 42 2.3.0. ff 7470-7491. Part 0 sets forth requirements for SIPs 1 attainment areas to ensure maintenance of the NAAQS. 4 1 :). On June 19, 1978, pursuant to Sections 160 through 169 :f the Act, 42 U.S.C. §§ 7470-7479, EPA promulgated federal PSD r.t-gulations at 40 C --S 52.21. 45 Fed. Reg. 26,402. The federal PSD program was incorporated into all applicable implementation plans nation-wide and contains the applicable PSD program requirements for each plan until EPA approves into an individual SIP a replacement program. See 40 5.8.8. § 52.21(a); 42 U.S.C. § 74 (0). . . Pursuant to Sectic.n 107(d) of the Act, 42 ri.S.C. § 7407(d), the Administrator promulgated lists of attainment status designations for each AQCR in every state. These lists identify the attainment status of each AQCR for each 01 the criteria pollutants. The NC and S(7) attainment status desidnations for the California AQCRs are listed at 4) C.F.R. § 81.305. 8. The BAAQMD has primary iurisdiction over major staLioriary sources of air pollution sources in the San Francisco Bay Area Intrastate AQCR. 40 C.F.R. § 81.21. This jurisdiction includes the Facility. c-. Section 161 of the Act, 42 U.S.C. § 7471, requires that e SiPcontains rrovisions to implement the Act's PSD prcgram for areas of that state which are designated as being in attainment with any NAAQE for a criteria pollutant. The PSD orogram applies to major new sources of air pollution. lfl. The PSD permitting program for the San Francisco Bav Aiea intrastate AQCR is the federal PS 7) orcgram, which is set forth tl 4 C.F.R. § 52.21. 11. Subseguent to 1978, the PSD regulations have been petic)dicaily revied. As the PSD ' identified in this NOWFDV first commenced from 1991 through 2003, the 1992 amendments to the PSD regulations contain the applicable f-7L.--3i, =,:_ to t1-1 ,alled(- violatons identified in this 1 See 57 Fed. Reg. 32314 (July 21, 1992). § 52.21 b) (a) (1992) defined a "ma1c statihary source" as any stationary source within one of 28 categories which emits, or has the potential to emit, 100 tons per year ("tpy") or more of any air pollutant subject to redulat.ion under the Act. Portland cement plants are included arry the 20 source '.:7ategories. ]3. The PSD Regulations defined a - major modification" as ''',/ physical change in or change in the method of operation of maTor stationary source that would result in a significant net emissions increase of any pollutant sublect to regulation under Act." =1 C.F.R. § 52.21(b)(2) (i) r1992]. 14. 40 C.F.R. § 52.21(b)(3)(i) (1992) defined "net eTisons lr.orease" as the "amount by which the sum of the foildwind exceeds zero: a. Any increase in actual emissions from e particular physical change cr change in the method of operation at a stnary s( and b. Any other increases and decreases in actual emissions at rne source that are contemporaneous with the particular change and otherwise creditable." 15. 40 C.F.R. § 52.21(b)(21) (1992) defined "actual missions" as follows: "In general, actual emissions as of a L)artir date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two- . year period which precedes the particular date and which is representative of normal source operation." The PSC regulatinns ,ilso provide that "[f]or any emissions unit ... which has not li normal operations on the pa::ticular date, actual emissions ihall equal the potential to emit on that date." 40 C.F.R.. 5C.2Dh) (21)(I7) (1992). 16. 40 C.F.R. § 52.21(1W4) (1992) defined Pdten'liai to emit" as the "maximum capacity of a stationary source to emit a pliutant under its physical or oderational design. Any physical ii operational limitation on the capacity of the source to emit :7:illutant., including the air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is federally enforceable." 17. As such, the ?SD regulations utilise an actual-to- ptential test to determine whether an emissions increase o:i Moreover, 40 C.F.P. .§ 52.21(1:0(1 W992) defined "significant" and states that, in reference to NO, and SC significant net emissions increase means an increase that would equal or exceed 4u tons or more per year. l. An applicant for a PSD permit to modify a stationary required to submit , informatiGn necessary to allow the permittLng athrity to perfc any analysis or make any 7 :let_ermination required in order to issue the appropriate permit. § 57.71n; (1992). 19. 40 C.F.R. § 52.21 (i) (1992) prohibited commencement c:;nstruction of a major modification to which the PS0 re apply unless the source had a permit stating that the Leduirements of 40 C.F.R. § 52.21(1)-(r) had been met. iD. The PSD permitting process required, among other thinD, that f9r pollutants emitted in significant amounts, the ._ or peration of a major source apply BACT to control emdssions, 40 C.F.R. § 52.21(j) (1992); model air quality, 40 § 52.21(1) (1992); and perform a detailed impact analysis legrdhq both the NAAQS and allowable increments, 40 C.F.R. 5 "2.21'k) (1992 ). 2]. Any owner or operator of a source or modification Plot to 40 C.F.R. § 52.21 who commenced construction after the ,,, ffective date of the PSD regulations without applying for and rer,:ed7ing a PS0 permit is subject to appropriate enforcement ticr by EPA. 40 C.F.R. § 52.21(r)(1) (1992); Sections 113 and t_he 42 'J.S.C. f§ i413 and 4 Title V Operating Permit Program 22. Title V of the Act, 42 U.S.C. §§ 7661-7661f, an operating permit program for "major sources," including any source required tc have a PSD permit. See Seorlion cl.02(a) ot the Act, 42 U.S.C. § 7661a(a). Reg,:lations Implementing the Title V permit program are set forth in 40 :.:. F. R. Part 70. 23. Pursuant to Title 7, it is unlawful for any person to 7iolate any requirement of a permi_t issued under Title V cr to perate a major source except in compliance with a permit issued by a permitting authority under TL:le V. Section 502a) of the Ac, 42 2.3.0. § 7661a(a). 4. 2ndr Suction 502(d)(1) of the )nt, states were fequired tc, develop and obtain ap;)roval to administer Title V prgrams. 42 U.S.C. § 7661a(d)(1: . EPA granted interim approval :; EAAQMD's Title V Operating Permit Program effective July 24, 295, and final full approval was effective November 30, 2001. 0 Appendix A. 25. Sources subject to Titla V and falling under EAAQM2's jurisdiction are required to submit to BAAQMD timely and complete Title V applications that identifv, among other things, all - applicable requirements, includng PSD requirements. See Ir.) C.F.R. § 70.5(a); BAAQMD Rule 2-6-404 and 2-6-405. 6. Sources subject to Title V and falling under EAA(7)Y1D's jurisdictio who have submitted an application are required to supp1 or correct the application to include applicable reuirements that were hot included in the original applicaLion. 40 C.F.R. § 70.5(b; BAAQMD Rule 2-6-405.10. 17. Scuirces subject to Tit:.e V and falling under BAAQ1 iurisdictic.n must obtain a Title 7 permit that: 1) contains such c necessary to assure compliance with the applicable 9 foirements; : identifies all applicable requirements the source is subject to; and 3) certifies compliance with all appliable requirements, and 4) where a source is not meeting reuiremnts, contains a plan for coming into compliance. l and E,04 of lri Act, 4221.S2. ' l and 7661a); 40 C.F.P. 70.5 and 70.6; BAA(S4D Rule 2-6-409. Failure of a source subject to Title V to submit a mplete application, supplement that apbdication when new ! become applicable, or to obtain a Title V permit t:j ccntains all applicable requirements, such as PSD !:luirements, are violations of the Act. FINDINGS OF FACT 29. The Facility is a Portland cement manufacturing iity, which is located at 24091 Stevens Creek B(oulevard, •:uner.lno, 3anta Clara County, Califgrna. San Francisco Bay Area Air E.-;.asin, which includes : Clara County where the Facility is located, was designated attainment/unclassifiable at all times for 1F7:. and 30 _ by . :1 - pration of law under Sections 107d)(1) (C) and 186 (a of the 1 . , •:"=, '41: U.S.C. §§ 7 407(d)(1)1) and 746(a. 3 56 Fed. P-:eg. 714 Nov. 6, 1991) ; 40 C.F.R. S 81.305. 31. Lehigh is the current owner and operator of the Faility. The Facility was formerly owned by Hanson Permanente and i- Cement Corporation. -- 2. The Facility includes nne kiln, and associated 10 cluipment used to produce clinker, including a preheater tower, direr, clinker cooler, induced. draft "1i9"; and other fans, cement finish mills, and extensive sections of ductwork. ±3. The combustion of coal, petroleum coke, and natural gas the kiln at the Facility produces emissions of NO, and SO:, which are released to the atmosphere through a collection of 32 individL al mini-stacks exiting from the badnouse. - .1. Between 1996 and 1999, LehicTh commenced construction of 7arious physical and/or operational changes at the Facility, anci . has continued to operate the Facility with these modifications, incAuding, but not limited to, the following: Upgrades 7o the f ish rid .11; and b. Various cther modifications, upgrades, and operational changes [Note: The underlying documents identifying these other projects have been c]a:Lmed bv Lehigh as confidential i: information, and thorefore are not being specifically identified in this NOV/F0V. Regardless, as the l: raises dilec7atins r tc, al/ r: - 2r - 13erational changes commencin from 1996 through 1999, thse other projects are covered t.;:hin the scope of the 1 55. Lehigh intended that these physical or operational changes, either individually or in the aggregate, would increase he production capacity of the Facility. 36. These physical or operational changes, either 11 ividualiy or in the aggregate, resulted in an increase in clinker prcduction at the Facility. Prevention of Significant Deterioration The Title V Permit issued by BA,T,QME included, among "Th." tIne folic:wing annual e7,issi-sns 1r1s f;=:1 11'1; si trm the Kiln at the Facility: NO SO2 Emissions limit (tpy) 5,072 2,101 As the limits in the Title 7 Permit for the Facility :ra_iy enforceable, they constitute the Facility's EmHrl PT= Based upon a comparison of pre-construction actual tn post-constructin PTE, the physical cr operati: -hanges i-ientified in Paragraph 34, either individually or in the reslita in net increases frc-m the Fa.:ility 111 and •D. Die nez emissions increases of NO, and SO as a result Hi the physidal or operational changes identified in Paragraph either individually or in the aggregate, constitute a PS0 net emissions increase since the increases were abcve 4i _py fcr NO, and 41. Each et the physical ,,Dr operatiDna] i7nanges identified in Fal:a - :cn , :tituted, either indivlduallv or in the , Jggrei,;ate, a "major modification" to the Facility for 0S0 as defined by 40 C.F.R. t) f2)?i). IL. Lehigh Aid not apply or a 030 Permit covering PCi.. and 1 2 emssions for any 3f the physical 3r operational changes intified in Paragraph 34. Lehigh failed to install and opera 3ACT-1evel eitission nontr for NO, and SO emissions from the Facilit either '_17 the time each of the physical or operational changes iientified in Paragraph 34 were commenced or any time since their and operation. Title V Operating Permit Program -14. As alleged in Paragraphs 34 through 43, Lehigh irmmenced one or more major modiL.cations at its Facility commencing from 1996 through 1999, and the modifications 11 the requirements to obtain a PSD permit, underd3 a PSD analysis, and operate in compliance with the P30 permit. Ienidh fail to satisfy these requirements. 45. Lehigh first submitted a Title V application to BAAQMD on June 21, 1996. The final permit was issued by EAAQMD an - 1.J2.mLer 5, 2003. Friir to issuance of the Title V permit, Lehigh fall t: 52—pplment and/or correct its 7itle V permit application to identify ail applicable requirements, including P30 requirements f NO.: and SO a plan to come into compliance with those PS0 - rduirements, and an updated certLfication of compliance that in.luded the P30 requirements. 4. As a result of Lehigh's failure to provide complete inf in its application or to supplement and/or correct 13 its a: to include PSD requirements, Lehigh obtained a deficient Title V operating permit that did not contain all appiicable requirements. 4%:. Pursuant tc Section 502(a) of 7_he CAA, 42 5 7661 , it is unlawful for any person to operate a source required to have a PSD permit except in compliance with a permit ssued by a permitting authority under Title V. Similarly, 10 7 0.1(h, 7 0.6a.) and BAAOMD Pule 2-6-409 require subject to Title V to have an operating permit that assures 7.omplance with all applicable requi.rements. 4c-f-). Lehigh has operated and continues to operate the without a valid Title V operating permit in violation u 1ection s 502, E03 and 504 of the Act, 42 U.S.C. §§ 7661a, 7661b, inrA 7 661c; 40 C.F.R. ,=;.§ 70.1, 70.5 and 70.6; and 3AAOMD P.egulaLion 2 Pule 6. FINDING OF VIOLATION Prevention of Significant Deterioration Pursuant to Section 113(a)( of the Act, notice is hereby given to Lehigh that the Administrator of the EPA, by duly delegated to the undersigned, rihds that Lehigh is in violat_ion of federal PSD requirements at the Facility ieribed in this NOV/F0V. EPA reserves the right to amend this Hi1 /F7)V or issue a new NOV/FCV baser on add informati.oh Ltained through Section 114 of the Act or any other source - ivailable to the Administrator at anv point. 14 Title V Operating Permit Program :±d. Notice is also given to Lehigh that it failed to supplement or correct its Title ! application submitted to BAAQMD to inojude PSD requirements or obta a Title V permit that ntained PS5 requirements, and therefore is in violation of 'I V of the Act. ENFORCEMENT 52. For any violation of a SIP, such as for PSD violations, Section 113(a)(1) of the Act, 42 U.S.C. § 7413(a) (1), provides that at any time after the expiration of 30 days following the Tiate of the issuance of a notice of violation, the Administrator may, without regard to the period of violation, issue an order requiring compliance with the requirements of the SIP, issue an administrative penalty order, or bring a civil action pursuant 10 2 e(:tion 113(b) for injunctive relief and/or civil penalties of not more than $25,000 per day for each violation that occurs on c)r before January 30, 1997, not more than $27,500 per day for each violation that occurs after January 30, 1997, nor more than 37:2,500 per day for each violation that occurs after March 14, 2004; and not more than $37,500 per day for eaoh violation that occurs after January 12, 2009. 42 U.S.C. § 7413(a)(1); Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410, as amended; 40 ( Part 19. 53. Sections 113(a) and 167 of the Act, 42 0.3.0. §§, 7 413(a)(3) and 7477, provide additional authority for EPA to enforce against violators of the Act. 15 54. SectHon 113(c) of the Act, 42 U.S.C. § i413(c), n for criminal penalties, imprisonment, or both for persons who knowingly violate any federal regulation or permit - requirement. For viciatons :f SIP, a criminal action can te M days after the date of issance of a Notice of ',/olaticn. 1)5. Section 306 of the Act, 42 U.S.C. § 7606, the regulations promulgated thereunder (2 C.F.R. Part 180) , and F......ue C-rder 11738 provide that fr to be utilized in -der al contracts, grants and loans must be in full compliance with tne 7.CT_ and all redulations promulgated pursuant to it. A vllation of the Act may result in Lehigh and/or the Facility being declared ineligible for participation in any federal .7 grant, or loan. PENALTY ASSESSMENT CRITERIA 56. Section 113(e)rn of the Act, 42 U.S.C. § 9613e)(1), states that the Administrator or the court shall determine the amht of a penalty to be assessed by taking into consideration sl.Th factors as justice may require, including the size of the shess, the ecanomi( imbar-t of the b on the business, the ri.liator's full compliance history and daod faith efforts to :1mp1y, the duration of the violation as established by a credible evidence (including evidence other than the applicable rest method), payment by the violator of penalties previously assessed for the same violations, the economic benefit of n:ncompliance, and the seriousness of the violation. 57. Section 713(e)(2) of the A 42 U.S.C. § 9613(e)2), 1 6 allws the Administrator c the court toa a penalty for of violation. This section further ',provides that for purps of determining the number of days of vialaticn, where EPA makes a prima facie showing that the conduct or events giving rise to the violation are likely to have continued or recurred past the data of an NOV, the days of violation shall be presumed include the date of the NOV and each and every day thereafter ui the facility establishes that continuous compliance has Len ahieved, except to the extent that the facility can prove by the preponderance of the evidence that there were intervening A' s during which no violation occurred or that the violation was nut ontinuing in nature. -_L OPPORTUNITY FOR CONFERENCE 5. Lehigh may confer wit EPA regarding this NOV/FOV if it requests. A conference would enable Lehigh to present evtdence bearing on the finding of violation, on the nature of 71:7,1a:in, and on any efforts it may have taken c,r_ proposes t ke to achieve compliance. If Lehigh seeks such a conference, m,tv 7.h-,ose to be represented by counsel. If Lehigh wishes to vin EPA, it must make a request for a conference within wc,rking days of receipt of this NOV/FOV. Any request for a 7,7,nerence or other inquiries concerning the NOV/FOV should be writing to: Ivan Lieben Office of Regional Counsel U.S. EPA (CRC-2) 7 5 Hawthorne Street San Francisco, CA 94105 (415) 972-3914 1 I 11 5e1:7.0rah or an DircTiOr, Ar n1 16 • FACT SHEET Notice of Violation issued by EPA to the Lehigh Southwest Cement plant in Cupertino • The Notice of Violation and Finding of Violation (NOV) is issued under Section 113(a)(1) of the Clean Air Act (CAA), which provides that for any violation of a requirement or prohibition of an applicable implementation plan or a permit, the Administrator shall notify the alleged violator and the State at least 30 days prior to commencing an enforcement action. • In the NOV, EPA alleges against Lehigh violations of the Prevention of Significant Deterioration requirements of the CAA by performing modifications at its Cupertino cement plant that increased air emissions without applying for the correct permit and using appropriate air pollution control technology. • More information about EPA's enforcement process may be found at http: / /www.epa- echo.gov/ echo /faq.html #stages_enforcement • The NOV identifies increases in NOx and SO2 air emissions and production capacity resulting from the modifications. • The NOV is a public document. • The NOV contains no description of individual projects completed as these were all claimed confidential by Lehigh. • The NOV offers Lehigh the opportunity to meet with EPA to present additional information and start the process to resolve the violations identified in the NOV. • The NOV includes no specific compliance actions to be taken at this time by Lehigh and assesses no penalty amount to be paid.